Tewelde v. Albright

• Decision Date: 08 March 2000
• Docket Number: No. CIV.A. 98-2872 RCL.,CIV.A. 98-2872 RCL.
• Citation: 89 F.Supp.2d 12
• Parties: Semainesh TEWELDE, Plaintiff, v. Madeleine K. ALBRIGHT, Secretary of State, et at. Defendant.
• Court: U.S. District Court — District of Columbia

89 F.Supp.2d 12

Semainesh TEWELDE, Plaintiff, v. Madeleine K. ALBRIGHT, Secretary of State, et at. Defendant.

No. CIV.A. 98-2872 RCL.

United States District Court, District of Columbia.

March 8, 2000.

COPYRIGHT MATERIAL OMITTED

David H. Shapiro, Swick & Shapiro, Washington, DC, for Plaintiff.

Mark E. Nagle, Wilma Antoinette Lewis, Scott Sutherland Harris, U.S. Attorney's Office, Washington, DC, Thomas Leo Doran, Decaro, Doran, Siciliano, Gallagher & DeBlasis, L.L.P., Lanham, MD, for Defendant.

MEMORANDUM OPINION

LAMBERTH, District Judge.

This matter comes before the Court upon the defendant's motion for summary judgment, made pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. The plaintiff, Semainesh Tewelde, is an African-American female who, at the time she filed this complaint, was employed by the American Embassy Association ("AEA") in Berlin, Germany.¹ She brings this action alleging race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended by the Equal Employment Act of 1972, 42 U.S.C. § 2000e et seq. The moving defendant is Madeleine K. Albright, the Secretary of State ("the Secretary"), named in her official capacity as head of the United States State Department ("USDOS"). The defendant moves for summary judgment arguing that she is not a proper defendant in this action.

I. BACKGROUND

The plaintiff is an African-American female who, at the time of the alleged discriminatory action resided with her husband in Berlin, Germany. The plaintiff was hired in September 1994, by the AEA to work as a child care provider at the AEA's pre-school facility in Berlin. See Complaint, at ¶ 4. The plaintiff filed her complaint in this action on November 25, 1998.² The complaint alleges several discriminatory and retaliatory incidents, which allegedly began sometime in 1995 and culminated in the dismissal of the plaintiff on February 24, 1998.

In her complaint, the plaintiff alleges that she started experiencing racially motivated difficulties at the AEA beginning in 1995, soon after a white female supervisor took over the mantle at the AEA's preschool. See Complaint, at ¶ 8. It was then, she claims that she "suffered a series of nasty racial comments and an assault during which racial epithets were uttered toward her." Id.

The plaintiff contends that approximately between September 1996 and July 1997, her work hours as a child care provider and a retail clerk were involuntarily reduced. Her hours were first reduced from 40 hours to 30 hours a week, and eventually to 12 hours a week. In the "spring, summer, and fall" of 1997, the plaintiff complained to AEA and Embassy officials about alleged "racially and ethnically discriminatory environment at the AEA and its effects on her." See Complaint at ¶ 11.

On February 24, 1998, the plaintiff was informed by AEA officials that due to "severe decline in business," her position as a child care provider was being eliminated. The plaintiff was offered an alternate position at the AEA's Guest House facility and was asked to respond to the offer by February 24, 1998. See Def. Exhibit K, Letter from Norman Bridgeford to Plaintiff (Feb. 13, 1998). The plaintiff, however, refused to accept this new position and was terminated from her employment on February 24, 1998. Id. The plaintiff attributes the reduced hours and her eventual dismissal from her position at the AEA to racial discrimination and retaliation for her complaint.

The plaintiff argues that the alleged illegal discriminatory actions were motivated because of her national origin and race, (black female, whose national origin is Eritrean and/or Ethiopian and/or African) in violation of Title VII of the Civil Rights Act of 1964. Id. at ¶ 9. Accordingly, the plaintiff instituted this suit against the AEA and the USDOS pursuant to Section 717 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16.

The plaintiff contends that because the USDOS has a "heavy hand in the management" of the AEA, it should be aggregated with the AEA as a single employer and should be held responsible for the alleged Title VII violations. The defendant moves for summary judgment based on the ground that the Secretary is not the proper defendant as USDOS never had a direct employment relationship with the plaintiff.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 56(c) provides that a District Court shall grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is (1) no genuine issue as to any material fact and that (2) the moving party is entitled to judgment as a matter of law." See Fed. R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C.Cir.1995). An issue is genuine when the evidence is such that a reasonable jury could return a verdict for the nonmovant. Anderson, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In Celotex, the Supreme Court determined that summary judgment is appropriate "against a party who fails to make a sufficient showing to establish the existence of an element essential to that party's case." Celotex, 477 U.S. at 322, 106 S.Ct. 2548. To avoid summary judgment, the nonmoving party must go beyond the pleadings and establish the existence of controverted issues by affidavits, depositions, answers to interrogatories, or admissions on file. Id at 323, 106 S.Ct. 2548.

III. ANALYSIS

Plaintiff asserts claims of racial discrimination in violation of Section 717 of Title VII, 42 U.S.C. § 2000e-16. The plaintiff claims that the Secretary should be held liable as much as the AEA for the alleged racial discrimination she suffered. The Secretary argues that there is no employment relationship between the plaintiff and the USDOS, therefore, plaintiff's claim against the USDOS should be dismissed. The Court agrees.

The primary issue before the Court is whether the Secretary is a proper defendant in this case. The plaintiff seeks to aggregate the AEA and the USDOS together, arguing that the AEA is an instrumentality of the USDOS. As an instrumentality, the plaintiff argues, the Secretary is subject to liability under Section 717 of Title VII, 42 U.S.C. § 2000e-16, as if the plaintiff was an employee of the USDOS. The plaintiff, in effect contends that the USDOS and AEA should be combined as a "single employer" for the purposes of this action.

The Secretary, however, objects to the plaintiff's "single employer" analysis. The Secretary contends that the AEA is the only proper defendant in this case as the USDOS has never had any direct employment relationship with the plaintiff. The Secretary further contends that the AEA is an independent non-governmental organization, which functions independent of the USDOS. Accordingly, the Secretary argues that the USDOS is not the proper defendant.

A. The AEA is not an Instrumentality of the USDOS

There is no bright line rule or specific test to determine if an entity is a federal instrumentality. However, courts over the years have explored various factors to aid their determination. See Lebron v. National R.R. Passenger Corp., 513 U.S. 374, 397-98, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995) (whether government officers handle and control its operations); United States v. Township of Muskegon, 355 U.S. 484, 486, 78 S.Ct. 483, 2 L.Ed.2d 436, (1958) (whether governmental control over entity is such that it "could properly be called a `servant' of the United States in agency terms"); Cherry Cotton Mills, Inc. v. U.S., 327 U.S. 536, 539, 105 Ct.Cl. 824, 66 S.Ct. 729, 90 L.Ed. 835, (1946) (whether entity is supported by governmental aid; whether entity's profits are distributed to and its losses borne by government); Clallam County, Wash. v. U.S., 263 U.S. 341, 343, 44 S.Ct. 121, 68 L.Ed. 328 (1923) (whether entity is owned by government).

Applying these factors, it is evident that the AEA is not a governmental instrument. Although the AEA was created pursuant to federal legislation³, the Association has mostly functioned independent of the federal government. The AEA's day-to-day operation, including the authority to manage personnel issues, are controlled by its General Manager, Scott Hanning. Mr. Hanning in turn reports directly to the AEA's Board of Trustees. See AEA Bylaws § 2(a)(1) at 3. The Board is also independently governed by its own distinct constitution and bylaws. The bylaws also establish how the Association's directors are chosen and the length of the directors' terms. The Board has the authority to hire and fire the General Manager. At the filing of this law suit, the Board was composed of two USDOS employees and the rest was made up of U.S. employees from the Internal Revenue Service, the Drug Enforcement Administration, the Department of the Treasury, and the Customs Service. See Aff. of Warren P. Nixon, at ¶ 4.

The AEA is also financially independent and does not receive financial assistance from the USDOS. The AEA is not owned or directly funded by the federal government. Its revenues are neither added to the federal treasury nor borne by the federal government. Hence, the Association not only exhibits none of the indicia of a federal instrumentality, but is indistinguishable from a typical independent non-governmental, non-profit organization.

B. Single Employer Status Under Title VII

Next the plaintiff urges the Court to aggregate the AEA and the USDOS as a "single employer" for the purpose of her claim. The plaintiff invites the Court to institute a test relied by the EEOC in Fenstermacher v. Department of State, EEOC Appeal No. 01922787, 1994 EEO-PUB LEXIS 4075 (May 26, 1995), to support her claim under the "single employer" theory. Despite the striking similarity of the fact...