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Barot v. Embassy of Republic of Zambia

United States District Court, District of Columbia

March 8, 2018



          AMY BERMAN JACKSON United States District Judge

         Plaintiff Dolores Barot brought this action against the Embassy of the Republic of Zambia alleging that defendant discriminated against her in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. when it paid her less than male employees, and that it discriminated and retaliated against her in violation of Title VII and the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. ("ADEA") when it terminated her employment. Compl. [Dkt. # 1] at 4. Plaintiff later amended her complaint to include an allegation that defendant violated the District of Columbia Wage Payment and Collection Law, D.C. Code § 32-1301, et seq. ("DCWPCL"), when it failed to pay her wages she was owed after her termination. 1st Am. Compl. [Dkt. # 17-1] ¶¶ 63-65; 2d Am. Compl. [Dkt. # 60] ¶¶ 87-90. On September 8, 2017, the Court granted defendant's cross-motion for partial summary judgment on the DCWPCL count (Count IV), concluding that the claim was barred by the statute of limitations.

         Pending before the Court is defendant's motion for summary judgment on Counts I, II, and III. Def'sMot. for Summ. J. [Dkt. # 80] ("Def'sMot."); Mem. in Supp. of Def'sMot. [Dkt. # 80- 1] ("Def.'s Mem.")-[1] While it appears that plaintiffs termination was hasty, and one could take issue with the quality of the managerial decision making involved, plaintiff has not come forward with evidence that would enable a reasonable jury to conclude that she was terminated because of her age, or in retaliation for complaining about gender discrimination. So the Court will grant defendant's motion for summary judgment on the remaining counts.


         I. Factual Background[2]

         Plaintiff began working for defendant as a secretary in January 1998. Def's SOF ¶ 1; Pl's SOF ¶ 1. Her base salary was $1, 300.00 per month, and she was eligible for an annual salary increase of $600.00 if the Embassy was satisfied with her performance during the year. Def's SOF ¶ 21; Pl's SOF ¶ 21. As of the time of her termination, plaintiffs monthly salary was $3, 150.00. Def's SOF ¶26; Pl's SOF ¶26.

         During her employment, plaintiffs supervisor was either the Embassy's Second Secretary (Accounts) - originally Paul Mulenga, and then Frank Mbewe - or its First Secretary (Accounts) - Mbewe. Def's SOF ¶ 2; Pl's SOF ¶ 2. Over time, as plaintiff saw it, she took on additional duties she described as "accounting duties, " Pl's SOF ¶ 27; Ex. 3 to Def's Mot. [Dkt. # 80-3] at 7, 16, and, she wrote a memorandum to the Ambassador on September 7, 2009 requesting an increase in her salary. Def's SOF ¶ 27; Pl's SOF ¶ 27; Ex. 18 to Def's Mot.[Dkt. # 80-5] ("Sept. 7 Barot Memo"). She also provided copies of the memorandum to Mbewe; Felix C. Mbula, the First Secretary (Political & Administrative); and the Embassy's Minister Counsellor, Alfred Chioza. See Sept. 7 Barot Memo; Ex. 2 to Def.'s Mot. [Dkt. # 80-3] at 104:9-14.[3]

         In the memo, plaintiff advocated for a salary increase commensurate with her "extra work load, " and she claimed that four other individuals had been treated in that manner. Def.'s SOF ¶ 27; Pl's SOF ¶ 27; see also Sept. 7 Barot Memo. Plaintiffs memo had this to say about the four others:

Back in February, 2000, when Glen Jervis, Receptionist took the position of Secretary, her Salary was commensurately increased from $1, 260.00 to $1, 460.00, a monthly increase of $200.00 ($2, 400.00/year).
In May 2003 . . . Office Orderly/Janitor, Cresencio Lawigan's monthly salary was raised from $1, 000 to $1, 200.00; an increase of $200.00 a month ($2, 400.00/year), justifying that he has to do extra work in the Chancery and the Ambassador's Residence.
In 2007, when the Second Secretary (Accts.) and Third Secretary (PA) were promoted to First Secretary (Accts) and Second Secretary (PA), their Overseas Allowances were also commensurately raised.

Sept. 7 Barot Memo; see also Def.'s SOF ¶ 28; Pl's SOF ¶ 28 (clarifying that Glen Jervis is female and Crescendo Lawigan is male). Plaintiff also maintained that she deserved the increase because the fact that she had created a computer template to substitute for paper forms had saved the Embassy money:

I have been doing my job exceedingly, and the Embassy have [sic] been saving a lot, which savings is more than the 10% of my one month's salary. These savings are from purchase of Payment Vouchers and Backing Sheets because prior to my hiring, all these forms are bought from Printing Companies which the Embassy is no longer doing from then on.

Sept. 7 Ban* Memo.

         On September 9, 2009, plaintiff met with Mbewe and Mbula to discuss her requested salary increase. Def.'s SOF ¶ 31; Pl's SOF ¶ 31. Plaintiffs request was denied, and Mbewe, Mbula, and plaintiff agreed that she would return to her ordinary secretarial duties instead. See Def.'s SOF ¶31; Pl's SOF ¶ 31; BarotDep. at 106:12-16; id at 107:19-108:9.

         Before she left for the day, though, plaintiff prepared and delivered another memorandum to Mbewe and Mbula. She informed them that there was a shortage of the hard copy payment voucher forms that she would now need in light of her return to "secretary only" duties. Def.'s SOF ¶¶ 32-33; Pl's SOF ¶¶ 32-33; see Ex. 20 to Def.'s Mot. [Dkt. # 80-5] ("Sept. 9 Barot Memo");[4] Barot Dep. at 122:22-123:6 (explaining that she would go back to using the paper form because that is what she did "when [she] was first hired as being [a] secretary"). Plaintiff had created and then continuously used the computerized version of the form during the time period that led up to the meeting. But after the meeting, she gave a memorandum to her supervisors advising them that they would need to order the paper forms again, repeating her point that she had been saving the Embassy money. See, e.g., Barot Dep. at 115:20-116:6 ("On the 9th after our meeting, it has been agreed that I will be going back to being secretary. So because when I was a secretary I just filled out those forms, the payment vouchers, the backing sheet, and the forms. So - and the payment vouchers that I had was already running out, the forms that I was using before when I was a secretary. They still had the form there, so I requested for purchase of those payment vouchers."); id. at 123:18-124:3 ("Q. Why did it have to go back to that way instead of you continuing to use the form that was on your computer that would show the numbers on it?" A. "So I just wanted them to know that the one that I did was very useful. They were saving, because I was -1 have to point them to they were saving because of what I did. So I had to be compensated for what I did."); id. at 156:17-157:17 ("Because I want them to know that that they are saving a lot by using what I have done and what I had formatted in my computer. They are saving a lot"); see also Sept. 9 Barot Memo.

         According to defendant, Mbewe did not have access to the computerized forms on his computer, but he could access them on plaintiffs computer. Def.'s SOF ¶ 34. He logged on to plaintiffs computer after she left work on September 9, but he was unable to find the form, and he concluded that the payment voucher template had been deleted. Id. He then informed Mbula that plaintiff had deleted the template. Id. & n.52; see Ex. 21 to Def.'s Mot. [Dkt. # 80-5] ("Brief on the Case of Dolores Barot") at 2.[5] The "mission administration" made a decision that night to place plaintiff on administrative leave immediately pending the arrival of the Ambassador. See BriefontheCaseof DoloresBarotat2.

         The next morning, September 10, 2009, Mbula entered plaintiffs office. Def.'s SOF ¶ 36; Pl's SOF ¶ 36. After he asked plaintiff whether she was a member of a labor union, to which she responded "no, " he presented her with a letter dated the same day signed by Chioza, placing her on indefinite administrative leave. Def.'s SOF ¶ 36; Pl's SOF ¶ 36. Mbula asked her to gather her things, and he escorted her out of the office. Def.'s SOF ¶ 36; Pl's SOF ¶ 36.[6]

         The September 10, 2009 letter stated:

Further to the meeting between First Secretary (Accounts), First Secretary (Political and Administration) and yourself, regarding matters pertaining to your duties, and after serious consideration of the circumstances surrounding your actions thereafter, it has been decided to place you on indefinite administrative leave with immediate effect pending review of your case.
During your administrative leave, you will receive 50% of your salary. Any further decisions regarding your employment with the Embassy will be made after the outcome of the review of your case.

Ex. 22 to Def.'s Mot. [Dkt. # 80-5] ("Administrative Leave Letter").

In a letter dated November 5, 2009, defendant informed plaintiff that she had been terminated. See Ex. 24 to Def.'s Mot. [Dkt. # 80-5] ("Termination Letter"). That letter stated in relevant part:
I write to inform you that following the review of the circumstances that led to your being placed on administrative leave on 10th September, 2009, the Embassy has decided that your services are no longer required by the Government of the Republic of Zambia.
Your employment contract has therefore been terminated with effect from 31rt October 2009. You will be paid one month's salary in lieu of notice.

Id. Plaintiff was 62 years old when she was terminated, and she was the oldest locally engaged staff member employed at the Embassy. Def.'s SOF ¶ 4; see Pl's SOF ¶ 4. On approximately November 23, 2009, the Embassy hired Nischel Pedapudi, a male who was younger than plaintiff, as her replacement. See Def.'s SOF ¶ 46; Pl's SOF ¶ 46.

         II. Embassy Personnel

         The organization of the Embassy is relevant to its status as an employer that could be liable under Title VII and the ADEA. The Ambassador, the Defense Attache, and Embassy personnel, which includes both diplomatic personnel and locally engaged staff, were posted to the Embassy located in Washington, D.C. See Def.'s SOF ¶¶ 6, 11; Pl's SOF ¶¶ 6, 11.

         During the relevant time period prior to plaintiffs termination, the Embassy had no more than fourteen locally engaged staff, the Defense Attache had two locally engaged staff, Def.'s SOF ¶ 6; Pl's SOF ¶ 6, and there were ten diplomatic personnel (including the Defense Attache) posted to the Embassy in Washington, D.C. Def.'s SOF ¶ 11; Pl's SOF ¶11.[7]

         The diplomatic personnel, except for the Defense Attache were hired, fired, and disciplined by Zambia's Ministry or Minster of Foreign Affairs, and their work assignments were assigned and monitored by the Minister of Foreign Affairs as well. Def.'s SOF ¶¶ 12-13; Pl's SOF ¶¶ 12-13. Diplomatic personnel were paid out of a budget established by the Minister of Foreign Affairs, and the Minister set their salaries, specified their methods of work, and regulated payroll practices. Def.'s SOF ¶¶ 13-14; Pl's SOF ¶¶ 13-14.

         Members of the Embassy's locally engaged staff were hired and fired by the Ambassador. Def.'s SOF ¶ 7; Pl's SOF ¶ 7. The diplomatic heads of departments exercised day-to-day supervision over the staff: promulgating work rules, maintaining employment records, distributing work assignments, and handling disciplinary matters. Def.'s SOF ¶ 8; Pl's SOF ¶ 8. The diplomat generally in charge of locally engaged staff was the First Secretary (Administration). Def.'s SOF ¶8; Pl's SOF ¶8.

         The Embassy proposed terms of employment for its locally engaged staff, and it exercised authority over support staff personnel matters. Def.'s SOF ¶ 9; see Pl's SOF ¶ 9.[8] But staff salary had to be approved by Zambia's Minister of Foreign Affairs. Def.'s SOF ¶ 9; see Pl's SOF ¶ 9.

         The Defense Attache was hired, disciplined, and fired by Zambia's Ministry of Defense. Def.'s SOF ¶¶ 12-14; Pl's SOF ¶¶ 12-14. The Ministry of Defense assigned and oversaw the work performed by the Defense Attache. Def.'s SOF ¶¶ 12-14; Pl's SOF ¶¶ 12-14. Within the office of the Defense Attache, the Defense Attache had authority - with notice to the Minister of Defense - to hire and fire his own locally engaged staff, which consisted of a driver and a secretary. Def.'s SOF ¶ 10; see Pl's SOF ¶ 10. The Defense Attache also controlled his locally engaged staff members' work assignments and employment records, monitored their performance, disciplined them, and, in conjunction with the Minister of Defense, set their salaries. Def.'s SOF ¶ 10; see Pl's SOF ¶ 10. The Defense Attache's locally engaged staff was paid out of the Defense Attache's budget, Def.'s SOF ¶ 10; see Pl's SOF ¶ 10, and the Defense Attache's compensation and conditions of service were governed by rules established by the Ministry of Foreign Affairs. Def.'s SOF ¶ 14; Pl's SOF ¶ 14.

         The Embassy's locally engaged staff, including plaintiff, could be called upon to assist the Defense Attache with tasks such as typing memoranda and checks. Def.'s SOF ¶ 10; see Pl's SOF¶10.

         III. Procedural Background

         On June 20, 2010, plaintiff filed a charge of sex and age discrimination with the United States Equal Employment Opportunity Commission ("EEOC"). Pl's Counter SOF ¶ 26; Def.'s Resp. SOF ¶ 26; see Ex. 26 to Pl's Opp. [Dkt. # 86-2]. The EEOC issued a decision on September 28, 2012, concluding that there was reasonable cause to believe that the Embassy discriminated against plaintiff based on her sex and her age when it discharged her, in violation of Title VII and the ADEA, and that it retaliated against her in violation of the ADEA. Pl's Counter SOF ¶ 29; Def.'s Resp. SOF ¶ 29; see Ex. 27 to Pl's Opp. [Dkt. # 86-3] ("EEOC Determination"). However, the EEOC concluded that there was insufficient evidence to establish that the Embassy retaliated against plaintiff in violation of Title VII. See EEOC Determination.

         On March 18, 2013, [9] plaintiff filed her initial complaint, alleging violations of Title VII and the ADEA. Compl. Plaintiff filed her first amended complaint on November 22, 2013, in which she added a DCWPCL claim. See 1st Am. Compl. ¶¶ 63-65.

         On April 11, 2014, the Court dismissed plaintiffs amended complaint for lack of personal jurisdiction based on plaintiffs failure to perfect service on defendant in accordance with the Foreign Sovereign Immunities Act ("FSIA"). Barot v. Embassy of the Republic of Zambia, 11 F.Supp.3d 24, 32 (D.D.C. 2014). The Court denied plaintiffs motion for reconsideration on June 2, 2014. Barot v. Embassy of the Republic of Zambia, 11 F.Supp.3d 33, 36 (D.D.C. 2014).

         Plaintiff appealed the dismissal of her amended complaint, and the Court of Appeals reversed and remanded the case to "afford [plaintiff] ... the opportunity to effect service pursuant to 28 U.S.C § 1608(a)(3)." Barot v. Embassy of the Republic of Zambia, 785 F.3d 26, 29-30 (D.C. Cir. 2015); see also Mandate of United States Court of Appeals [Dkt. # 41].

         After plaintiff perfected service, see Return of Service Aff [Dkt. # 52], defendant moved to dismiss the amended complaint on the grounds that it failed to state a claim upon which relief could be granted. Def.'s Mem. of Law in Supp. of Def.'s Mot. to Dismiss [Dkt. # 53-1]. In response, plaintiff filed a motion for leave to file a second amended complaint pursuant to Federal Rule of Civil Procedure 15, Mot. for Leave to File 2d Am. Compl. [Dkt. # 54], which the Court granted. Min. Order (Jan. 19, 2016).

         Plaintiff filed a second amended complaint on January 19, 2016. 2d Am. Compl. [Dkt. # 60]. Count I alleges pay discrimination on the basis of gender in violation of Title VII. Id. ¶¶ 69-75. Count II alleges that plaintiff was terminated because of her age in violation of the ADEA. Id. ¶¶ 76-80. Count III alleges that she was retaliated against in violation of Title VII for making complaints to her employer regarding unequal pay and discrimination. Id. ¶¶ 81-86. Count IV alleges that defendant failed to pay plaintiff her owed wages in violation of the D.C. Wage Payment and Collection Law. Id. ¶¶ 87-90. On February 12, 2016, defendant filed an answer, which included a counterclaim for trespass to chattel against plaintiff. Answer [Dkt # 62] ¶¶ 103-08. Defendant voluntarily dismissed the counterclaim on February 26, 2016, Notice of Voluntary Dismissal [Dkt. # 64] after filing an amended answer on February 25, 2016. Am. Answer [Dkt. #63].

         Following discovery, plaintiff moved for partial summary judgment on her DCWPCL claim, Mot. for Partial Summ. J. [Dkt. # 75], and defendant filed a cross-motion for summary judgment on the same count. Def.'s Cross-Mot. for Partial Summ. J. [Dkt. #78]. The Court granted defendant's cross-motion for summary judgment. See Barot, 264 F.Supp.3d at 287. Defendant also filed a motion for summary judgment on Counts I, II, and III on March 9, 2017. Def.'s Mot. The motion has been fully briefed.[10]


         Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat summary judgment, the non-moving party must "designate specific facts showing that there is a genuine issue for trial." Id. at 324 (internal quotation marks omitted).

         The mere existence of a factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., Ml U.S. 242, 247-48 (1986). A dispute is "genuine" only if a reasonable fact-finder could find for the non-moving party; a fact is "material" only if it is capable of affecting the outcome of the litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In assessing a party's motion, the court must "view the facts and draw reasonable inferences 'in the light most favorable to the party opposing the summary judgment motion.'" Scott v. Harris, 550 U.S. 372, 378 (2007) (alterations omitted), quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam).


         I. A dispute of fact exists as to whether the Embassy is an "employer" for purposes of Title VII aud the ADEA.

         Title VII applies to any employer who "has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year." 42 U.S.C. § 2000e(b). Under the ADEA, the definition of an "employer" is identical, except that the person or entity must have "twenty or more employees." 29 U.S.C. § 630(b).[11]

         "[T]he threshold number of employees for application of Title VII is an element of a plaintiffs claim for relief." Arbaugh v. Y&H Corp., 546 U.S. 500, 515 (2006). The Embassy argues that it is not an employer for purposes of Title VII or the ADEA because it employed fewer than fifteen people (or twenty under the ADEA), see Def.'s Mem. at 13-19, and it seeks the entry of judgment in its favor on that basis.

         The parties do not dispute that during the relevant time period, the Embassy had no more than fourteen locally engaged staff. Def.'s SOF ¶ 6; Pl's SOF ¶ 6. But plaintiff contends that the ten diplomatic personnel posted to the Embassy, as well as the Defense Attache's two locally engaged staff, should be counted as Embassy employees for the purpose of determining whether the Embassy is subject to the requirements of Title VII and the ADEA. See Pl's Opp. at 5. This legal conclusion turns upon the application of legal principles to disputed facts, and the Court cannot grant summary judgment on this issue.

         A. The Embassy does not meet the employee requirement nnder the payroll method.

         The Supreme Court addressed the question of how to determine whether "an employer 'has' an employee on any working day" for the purpose of Title VII, and it determined that the relevant inquiry is whether "the employer has an employment relationship with the individual on the day in question." Walters v. Metro. Educ. Enters., Inc.,519 U.S. 202, 206 (1997). "This test is generally called the 'payroll method, ' since the employment relationship is most readily demonstrated by the individual's appearance on the employer's payroll." Id.- see Id. at 207 (observing that the payroll method has also been adopted by the EEOC under the ADEA). But, the Court also noted that "an individual who appears on the payroll but is ...

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