Coulibaly v. Kerry, Civil Action No.: 14-0189 (RC)

• Citation: 213 F.Supp.3d 93
• Decision Date: 30 September 2016
• Docket Number: Civil Action No.: 14-0189 (RC)
• Parties: Tiemoko COULIBALY, Plaintiff, v. John KERRY, U.S. Secretary of State, et al., Defendants.
• Court: U.S. District Court — District of Columbia

213 F.Supp.3d 93

Tiemoko COULIBALY, Plaintiff,

v.John KERRY, U.S. Secretary of State, et al., Defendants.

Civil Action No.: 14-0189 (RC)

United States District Court, District of Columbia.

Signed September 30, 2016

Tiemoko Coulibaly, Silver Spring, MD, pro se.

Joshua M. Kolsky, Marian L. Borum, U.S. Attorney's Office for the District of Columbia, Washington, DC, for John Kerry, U.S. Secretary of State, et al.

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT; DENYING PLAINTIFF'S MOTION FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT; GRANTING PLAINTIFF'S MOTION TO ADD NEWLY ACQUIRED EVIDENCE

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

Plaintiff Dr. Tiemoko Coulibaly, proceeding pro se and in forma pauperis , brings this action against the United States, the Secretary of State, and twelve other individuals who are current or former employees of the U.S. Department of State, the Merit Systems Protection Board ("MSPB"), or the Equal Employment Opportunity Commission ("EEOC"). In a twenty-two count complaint, Dr. Coulibaly alleges discrimination, retaliation, First Amendment violations, common law tort contract violations, and violations of various federal and District of Columbia statutes. Currently pending before the Court are (1) Defendants' pre-discovery motion to dismiss or, in the alternative, for summary judgment; (2) Dr. Coulibaly's motion for leave to file a fourth amended complaint; and (3) Dr. Coulibaly's motion to add newly acquired evidence.

For reasons discussed in this opinion, the Court dismisses or grants summary judgment to Defendants on all of Dr. Coulibaly's claims asserted in his third amended complaint, with the exception of his First Amendment claim based on 2007 events (asserted in Count 5 of his complaint), as asserted against individual defendants; his Title VII hostile work environment claim (Count 6); his wrongful discharge claim (Count 13); and his claim of retaliation based on 2009 events (asserted in Count 16). As explained below, the individual defendants must be served so that they may respond to Count 5, and genuine disputes of material fact exist on the other three counts, which the parties should explore during discovery. The Court will accordingly deny Defendants' motion with respect to these four counts.

Dr. Coulibaly's proposed fourth amended complaint reasserts many claims from his third amended complaint (including many that, as discussed below, must be dismissed). And many of Dr. Coulibaly's proposed additional claims are factually unrelated and legally distinct from the ones in his third amended complaint, such that allowing consideration of them here would unnecessarily delay this case's progress. The Court will therefore deny Dr. Coulibaly's motion for leave to file a fourth amended complaint. Lastly, because Defendants consent to Dr. Coulibaly's motion to add newly acquired evidence, the Court will grant that motion.

II. FACTUAL BACKGROUND¹

A. Employment as an FSI Contractor (1999–2011)

1. Employment Status

Dr. Coulibaly is an African American from the Ivory Coast. Pl.'s Third Am. Compl. ("Compl.") ¶ 19, ECF No. 28. In 1999, Dr. Coulibaly joined the Department of State's Foreign Service Institute ("FSI") as a French instructor. Id. FSI originally hired him as a contractor under a series of Blanket Purchase Agreements ("BPAs"). See id. ¶ 119; Defs.' Statement of Material Facts as to Which There Is No Genuine Dispute ("Defs.' Facts") ¶¶ 1−>3, ECF No. 30. During this time, to stay employed as an FSI contractor each year, Dr. Coulibaly had to ensure that FSI would renew his contract. See Compl. ¶¶ 74–75. When he started working at FSI, Dr. Coulibaly reports that Dr. Jane Kamide was the head of the French section, and that Solomon Atayi served as her deputy. Id. ¶ 70.

2. Discussions About Political Statements

Later during Dr. Coulibaly's time as an FSI contractor, Solomon Atayi served as head of the French section and as Dr. Coulibaly's supervisor. Compl. ¶¶ 21, 54, 65. According to Dr. Coulibaly's complaint, Mr. Atayi is an African American from Togo. Id. ¶¶ 21, 55. Dr. Coulibaly asserts that, after Mr. Atayi learned that Dr. Coulibaly had been giving statements to the media about political events occurring in the Ivory Coast, Mr. Atayi told Dr. Coulibaly that he had "no right to give interviews to radio, TV, [or] newspapers on his country of origin" because Dr. Coulibaly was an employee of the Department of State. Id. ¶¶ 65–66. Dr. Coulibaly also asserts that Mr. Atayi further told Dr. Coulibaly that, even though Dr. Coulibaly was in line to become a "direct-hire" FSI employee, Mr. Atayi believed that hiring Dr. Coulibaly was "not a good idea" because of Dr. Coulibaly's "political articles against the Ivorian government." Id. ¶ 54. Along those lines, Mr. Atayi allegedly stated that appointing Dr. Coulibaly as an employee "could create political problems" between the Department of State and the Ivory Coast. Id.

Dr. Coulibaly further asserts that Mr. Atayi's supervisor, "Micha," who Dr. Coulibaly reports is white, also took Mr. Atayi's views. See id. ¶ 57. In a conversation with Dr. Coulibaly, Micha allegedly told Dr. Coulibaly that "it [was] not a good idea to hire him as [an] employee" because Dr. Coulibaly "was a political asylee" in the United States and because "his writing could also create some political problems." Id. Dr. Coulibaly states that, in support of her statement, Micha alluded to a past incident in which "an individual working for [the] State Department was also [a] political [a]sylee" and in which "his speech against the [g]overnment of his country created some political tensions" between the United States and that individual's country of origin. Id.

Dr. Coulibaly contends that he responded to Mr. Atayi's directives about Dr. Coulibaly's political statements by explaining that, because of his contractor status, Dr. Coulibaly "was free to give interviews after his work at FSI ... because there was no rule or policy preventing him [from] do[ing] that." Id. ¶ 66. He further explained that he "never mentioned his work at [the] State Department in any of his interviews or article[s]." Id. ¶ 67. In response to Micha's comments, Dr. Coulibaly states that he noted how "he ha[d] been working since 1999 for [the] State Department as [a] contractor" and how his statements outside of work had "never created any political tension" between the United States and the Ivory Coast. Id. ¶ 58. Dr. Coulibaly also states that Mr. Atayi later "admitted that [Dr. Coulibaly] was right" about his ability to make political statements if he did not mention his work at the Department of State. Id. ¶ 67.

3. Efforts to Become an FSI Employee

Concurrently with Dr. Coulibaly's discussions with Mr. Atayi and Micha, Dr. Coulibaly alleges that FSI was preparing to hire him as an employee—but that Mr. Atayi ruined Dr. Coulibaly's chances. See Compl. ¶¶ 54–67, 79–80. Dr. Coulibaly alleges that, in 2007, FSI's "hiring of teachers was based on seniority." Id. ¶ 50 (emphasis omitted). For that reason, Dr. Coulibaly contends that "it was his turn to become [a] direct-hire [employee]" in 2007. Id. In support, Dr. Coulibaly asserts that FSI's Associate Dean James North asked Dr. Coulibaly if he would accept a direct-hire position, and that Dr. Coulibaly responded in the affirmative. Id. ¶¶ 50–51. Dr. Coulibaly therefore "expecte[d] his appointment by Associate Dean James North sometime [ ] soon after this conversation." Id. ¶ 51.

Indeed, the record indicates that, on June 15, 2007, the FSI human resources department created the position description for a French language teaching position, which at some point in 2007 or thereafter had Dr. Coulibaly's name on it. See id. ¶¶ 41–43; Duckett Decl. ¶¶ 1–2, Defs.' Facts Ex. Z, ECF No. 30-26; Position Description, Defs.' Facts Ex. F, ECF No. 30-6 (reproducing the position description, which was signed by both Associate Dean North and an FSI human resources officer on June 15, 2007). But Dr. Coulibaly did not become an FSI employee until 2011. See Compl. ¶¶ 43, 80; Defs.' Facts ¶ 4. To justify the gap in time, an FSI human resources officer explains that the position description "was classified" on June 15, 2007—meaning that it was a "standard" position description to which other individuals besides Dr. Coulibaly could also have been assigned. See Compl. ¶¶ 41, 44; Duckett Decl. ¶ 2. Thus, she states, "[u]pon [Dr.] Coulibaly's appointment in 2011, a copy of the Position Description was made and [Dr.] Coulibaly's name was written into Box 17," which FSI originally left blank. Duckett Decl. ¶¶ 3, 5; see Position Description (showing Dr. Coulibaly's name in Box 17).

Dr. Coulibaly disputes FSI's explanation. See Compl. ¶¶ 42–54, 79–80. He points to what he views to be several flaws in the explanation: (1) both Associate Dean North and the FSI human resources officer had already signed the position description on June 15, 2007, id. ¶ 43; (2) other FSI employees did not have the date June 15, 2007 in their hiring documents and had never heard of the practice of copying a position description, id. ; and (3) Dr. Coulibaly never received the June 15, 2007 position description when Dr. Coulibaly became an FSI employee in 2011, which he views as evidence of "active concealment and intentional non-disclosure," id. ¶¶ 47, 51.

Rejecting FSI's explanation, Dr. Coulibaly posits a different explanation for the gap in time between the 2007 date of the position description and his 2011 appointment as an FSI employee. See id. ¶¶ 54–67, 79–80. Dr. Coulibaly claims that his supervisor, Mr. Atayi, used Dr. Coulibaly's political statements as a pretext to hire another employee in Dr. Coulibaly's stead. See id. ¶¶ 55, 62–68, 79–80; see supra Part II.A.2 (discussing Dr. Coulibaly's conversations with Mr. Atayi about political statements that Dr. Coulibaly made in his private capacity). According to Dr....