Coulibaly v. Kerry

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

TIEMOKO COULIBALY, :

:

Plaintiff, : Civil Action No.: 14-00712 (RC)

:

v. : Re Document Nos.: 9, 11, 16

:

JOHN KERRY, U.S. Secretary of State, et al., :

:

Defendants. :

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS; DENYING

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING AS MOOT PLAINTIFF’S MOTION

TO EXPEDITE

I. INTRODUCTION

Dr. Tiemoko Coulibaly, proceeding pro se and in forma pauperis, brings this action

against the Secretary of State and fifteen other individuals who are current or former employees

of the U.S. Department of State. Dr. Coulibaly alleges that, by terminating his employment,

Defendants violated the District of Columbia Accrued Sick and Safe Leave Act, as amended, and

Title I of the federal Family and Medical Leave Act. Currently pending before the Court are the

defendants’ motion to dismiss, Dr. Coulibaly’s motion for summary judgment, and his motion to

expedite. Because the Court’s jurisdiction over the D.C. law claim is precluded by the Civil

Service Reform Act, the Court dismisses that claim. Because, however, the Court has

jurisdiction over Dr. Coulibaly’s claim under Title I of the Family and Medical Leave Act, and

because the defendants have not shown that the complaint fails to state a claim, the Court denies

the motion to dismiss as to that claim. Because there remain genuine issues of material fact as to

the defendants’ liability under the Family and Medical Leave Act, the Court denies Dr.

Coulibaly’s motion for summary judgment. Because the court resolves the pending dispositive

motions, the Court denies as moot the motion to expedite.

II. FACTUAL BACKGROUND 1

Dr. Coulibaly joined the Department of State’s Foreign Service Institute (“FSI”) as a

French instructor in 1999. Compl. ¶ 4, ECF No. 1. He was hired originally as a contractor under

a Blanket Purchase Agreement. See id. ¶¶ 75, 83. On June 19, 2011, Dr. Coulibaly commenced

a two-year Excepted Service appointment within the Department of State as a French instructor,

performing substantially the same duties as he had while a contractor. Limaye letter of May 27,

2011, Compl. Ex. at 113, ECF No. 1-1; Compl. ¶¶ 75, 83. His appointment was subject to an

initial one-year trial or probationary period. See id.

In November 2011, Dr. Coulibaly met with an Equal Employment Opportunity (“EEO”)

counselor to discuss alleged discrimination, and on December 20, 2011, he filed a formal EEO

complaint alleging that FSI management had discriminated against him on the basis of race,

color, and national origin. See Compl. ¶¶ 2, 8–9; EEO Counselor’s Report, Compl. Ex. at 102–

06, ECF No. 1-1. As a result of that EEO complaint, FSI management subjected Dr. Coulibaly

to extensive harassment, causing his physical and mental health to deteriorate. See Compl. ¶¶

11, 14.

1

Because the majority of the Court’s analysis concerns Defendants’ motion to dismiss,

the Court’s factual background assumes the truth of the well-pleaded factual allegations in the

complaint, see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and draws on documents referenced

in and integral to the complaint, see Marshall v. Honeywell Tech. Solutions, Inc., 536 F. Supp. 2d

59, 65 (D.D.C. 2008). To his complaint, Dr. Coulibaly has attached a large exhibit consisting of

many documents that could constitute competent summary judgment evidence. See ECF No. 1-

1. Indeed, many of those documents are re-attached to Dr. Coulibaly’s later filings. Mindful that

Dr. Coulibaly is proceeding pro se, in considering both the motion to dismiss and the motion for

summary judgment, the Court has reviewed all of the complaint exhibits, in addition to the

exhibits attached to later filings. But for simplicity, in this factual background, the Court cites

only the complaint and the exhibit attached to the complaint.

2

In February 2012, Dr. Coulibaly’s primary care physician instructed him not to return to

work and referred him to a psychiatrist. Id. ¶¶ 12, 13. Dr. Coulibaly was absent from work for

approximately six weeks, from February 15, 2012, until March 26, 2012. Id. ¶ 12. During this

absence, Dr. Coulibaly submitted to FSI a letter from the psychiatrist explaining his diagnosis of

depression, anxiety, and post-traumatic stress disorder, which conditions the psychiatrist

attributed to Dr. Coulibaly’s “hostile work environment.” See id. ¶ 14; see also Hamlin report of

Mar. 10, 2012, Compl. Ex. at 1–2, ECF No. 1-1. Despite Dr. Coulibaly’s multiple submissions

of his leave request, FSI management refused to process the request on the basis that his

psychiatrist had “provided too much information” and that approval of the request would

jeopardize Dr. Coulibaly’s privacy. Compl. ¶ 15.

On March 26, 2012, per his psychiatrist’s instructions, Dr. Coulibaly returned to work

and requested a change in supervisor. See id. ¶ 14. Upon his return, he again submitted his leave

request and medical records, which FSI policies required that he submit within fifteen days after

his return. See id. ¶ 17. On March 28, 2012, FSI management approved his leave request by

email. Id. ¶ 18; see also Leave approval email of Mar. 28, 2012, Compl. Ex. at 18, ECF No. 1-1.

Later that day, Dr. Coulibaly requested approval of eight hours of advance sick leave based on

his health issues; his supervisor Philippe Casteuble explained that he had no authority to approve

such a request and instead entered the eight hours as leave without pay pending further

management approval. See Coulibaly-Casteuble emails of Mar. 28, 2012, Compl. Ex. at 27, ECF

No. 1-1.

On April 2, 2012, FSI terminated Dr. Coulibaly’s employment prior to the completion of

his one-year trial period. See Compl. ¶ 19; Termination letter of Apr. 2, 2012, Compl. Ex. at 3,

ECF No. 1-1. The termination letter explained that Dr. Coulibaly was discharged for

3

“unacceptable conduct,” including “inappropriate interactions with supervisors, and . . . failure to

follow established procedures for requesting leave.” Termination letter of Apr. 2, 2012, Compl.

Ex. at 3. His termination became effective on April 6, 2012. See id. FSI declined to pay Dr.

Coulibaly for the time he was on sick leave, claiming that because he failed to follow proper

procedure for requesting leave, his leave was never in fact approved. See Compl. ¶¶ 23, 32.

Thereafter, Dr. Coulibaly continued to pursue his EEO complaint. Id. ¶ 27; see also EEO

filings and investigative documents, Compl. Ex. at 28–101, ECF No. 1-1. He also asserted

certain whistleblower claims before the Merit Systems Protection Board (“MSPB”). See Compl.

¶ 73.

In April 2014, Dr. Coulibaly filed the instant action against the Secretary of State and

fifteen other individuals who are current or former employees of the U.S. Department of State

(collectively “Defendants”). See generally Compl. 2 The complaint alleges that his termination

violated the federal Family and Medical Leave Act of 1993 (“FMLA”), Pub. L. No. 103–3, 107

Stat. 6 (1993), as codified at 29 U.S.C. §§ 2601 et seq., and the District of Columbia Accrued

Sick and Safe Leave Act of 2008, 2008 D.C. Laws 17–152, as codified at D.C. Code §§ 32–

131.01 et seq., as amended by the Earned Sick and Safe Leave Amendment Act of 2013, 2014

D.C. Laws 20–89. 3 By way of relief, Dr. Coulibaly seeks compensatory damages for lost wages

and benefits along with equitable relief. See Compl. 46–47.

2

Dr. Coulibaly alleges that three of the defendants were terminated from their posts at

FSI in January 2013. See Compl. ¶ 27.

3

Dr. Coulibaly previously filed a separate complaint against many of the same

Defendants, challenging his termination on numerous other grounds distinct from those asserted

in the complaint in this instant action. See Third Am. Compl., Coulibaly v. Kerry et. al., No. 14-

cv-00189, ECF No. 28. This Memorandum Opinion addresses only the claims presented in this

case, No. 14-cv-00712, under the Family and Medical Leave Act and the D.C. Accrued Sick and

Safe Leave Act.

4

Defendants have filed a motion to dismiss. See ECF No. 9. Dr. Coulibaly has filed a

motion for summary judgment, see ECF No. 11, and has submitted a letter that the Court

construed as a motion to expedite, see ECF No. 16. All motions are ripe for adjudication.

III. LEGAL STANDARDS

A. Rule 12(b)(1)

Federal courts are courts of limited jurisdiction, and the law presumes that “a cause lies

outside this limited jurisdiction[.]” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,

377 (1994). Thus, to survive a Rule 12(b)(1) motion to dismiss, a plaintiff bears the burden of

establishing that a court has jurisdiction over his claim. See Moms Against Mercury v. FDA, 483

F.3d 824, 828 (D.C. Cir. 2007) (subject-matter jurisdiction). In determining whether jurisdiction

exists, a court may “consider the complaint supplemented by undisputed facts evidenced in the

record, or the complaint supplemented by undisputed facts plus the court’s resolution of disputed

facts.” Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003)

(citations omitted).

“If sovereign immunity has not been waived, a claim is subject to dismissal under Rule

12(b)(1) for lack of subject matter jurisdiction.” Clayton v. District of Columbia, 931 F. Supp.

2d 192, 200 (D.D.C. 2013) (citing Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994)

(“Sovereign immunity is jurisdictional in nature.”)). Courts “may not find a waiver unless

Congress’ intent is unequivocally expressed in the relevant statute.” Hubbard v. Adm’r, E.P.A.,

982 F.2d 531, 532 (D.C. Cir. 1992) (citation and internal quotation marks omitted).

B. Rule 12(b)(6)

To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim, a complaint

must contain sufficient factual allegations, accepted as true, to “state a claim to relief that is

5

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009).

C. Rule 56

A court may grant summary judgment when “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). A party moving for summary judgment bears the “initial responsibility” of

demonstrating “the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986); see also id. at 330–31 (Brennan, J., dissenting on other grounds)

(explaining that “ultimate burden of persuasion” to establish the lack of a genuine dispute of

material fact “always remains on the moving party”).

IV. ANALYSIS

Dr. Coulibaly alleges that his termination violated both the FMLA and the D.C. Accrued

Sick and Safe Leave Act, as amended. See generally Compl. In their motion to dismiss,

Defendants contend that the Court lacks jurisdiction over Dr. Coulibaly’s claims, that he has

failed to state plausible claims, and that he failed to perfect service on those defendants sued in

their individual capacities. See Mem. Supp. Defs.’ Mot. Dismiss 5–12. In his motion for

summary judgment, Dr. Coulibaly contends that because his evidence demonstrates the absence

of any issue for trial, he is entitled to summary judgment. See generally Mem. Supp. Pl.’s Mot.

Summ. J.

Because the Court’s jurisdiction over Dr. Coulibaly’s D.C. law claim is precluded by the

Civil Service Reform Act, the Court dismisses that claim. See infra Part IV.A.1. Because,

6

however, the Court has jurisdiction over Dr. Coulibaly’s claim under Title I of the FMLA, see

infra Part IV.A, and because Defendants have not shown that the complaint fails to state a claim,

see infra Part IV.B, the Court denies the motion to dismiss as to that claim. Because there

remain genuine issues of material fact as to Defendants’ liability under the FMLA, the Court

denies Dr. Coulibaly’s motion for summary judgment. See infra Part IV.C.

A. Jurisdiction

1. Jurisdictional Preclusion by the Civil Service Reform Act

“[F]ederal employees are ordinarily not permitted to split a challenge to an adverse

personnel action between the MSPB and a federal district court . . . .” Lacson v. U.S. Dep’t of

Homeland Sec., 726 F.3d 170, 174 (D.C. Cir. 2013). “Rather, the Civil Service Reform Act of

1978 (CSRA), 5 U.S.C. §§ 1101 et seq., generally requires employees to bring such claims first

in an action before the MSPB and thereafter to the Federal Circuit.” Id. (citing 5 U.S.C. §§ 1204,

7701, 7703(b)(1)). The CSRA’s exclusive remedial scheme can therefore preclude a district or

appeals court from exercising jurisdiction over certain employment-related claims brought by

federal employees. See id.

Underscoring the breadth of the CSRA’s preclusive effect, the Supreme Court has taught

that even federal employees without any review rights under the CSRA may not use other

statutory vehicles such as the Back Pay Act to challenge employment actions, and that

employees with review rights may not pursue claims outside of the CSRA’s remedial scheme by

invoking the federal courts’ federal-question jurisdiction. In United States v. Fausto, the

Supreme Court held that given the CSRA’s “comprehensive system for reviewing personnel

action taken against federal employees,” where the CSRA did not enable a nonpreference

Excepted Service employee to seek relief before the MSPB and Federal Circuit, the absence of

7

such a remedy foreclosed his action in the Claims Court for damages under the Back Pay Act.

484 U.S. 439, 455 (1988). More recently, in Elgin v. Department of Treasury, the Supreme

Court explained that just as the CSRA’s comprehensive scheme “foreclose[s] judicial review to

employees to whom the CSRA denies statutory review” as in Fausto, “extrastatutory review is

not available to those employees to whom the CSRA grants administrative and judicial review.”

132 S. Ct. 2126, 2133 (2012). The Elgin Court held that the district court could not exercise

jurisdiction under 28 U.S.C. § 1331 over a facial constitutional challenge brought by a former

competitive service employee, who had rights to review in the MSPB and Federal Circuit. Id. at

2133–36.

The D.C. Circuit and other courts of appeals have reinforced the expansive reach of

CSRA jurisdictional preclusion. Like the Back Pay Act and § 1331, the Administrative

Procedure Act (“APA”) offers no workaround for CSRA preclusion: Federal employees may not

use the APA to grieve an employment-related matter by challenging an agency’s failure to abide

by its own procedures and regulations, see Graham v. Ashcroft, 358 F.3d 931, 934–36 (D.C. Cir.

2004), a personnel policy at a systemic level, Fornaro v. James, 416 F.3d 63, 68–69 (D.C. Cir.

2005), or an agency’s statutory interpretation, Nyunt v. Chairman, Broad. Bd. of Governors, 589

F.3d 445, 448–49 (D.C. Cir. 2009). Additionally, the CSRA forecloses federal employees from

challenging employment actions using state-law remedies. See Guitart v. United States, 3 F.3d

439, 439 (5th Cir. 1993) (affirming dismissal of FTCA claim incorporating state-law claims and

following “[e]very circuit” that had considered CSRA preclusion of state-law remedies); Berrios

v. Dep’t of the Army, 884 F.2d 28, 31–33 (1st Cir. 1989); Broughton v. Courtney, 861 F.2d 639,

641–44 (11th Cir. 1988). As a general rule, then, “so far as review of determinations under the

CSRA is concerned, what you get under the CSRA is what you get.” Fornaro, 416 F.3d at 67.

8

In certain instances, however, the CSRA leaves the courthouse doors open to federal

employees. The D.C. Circuit in Lacson v. United States Department of Homeland Security held

that CSRA preclusion does not extend to a federal employee’s suit brought under 49 U.S.C.

§ 46110, which authorizes appeals courts to review determinations relating to the protection of

Sensitive Security Information (“SSI”) issued by the Transportation Security Administration.

Lacson, 726 F.3d at 173–77. The Lacson court explained that there was “something special

about § 46110’s grant of jurisdiction” that enabled it to avoid CSRA preclusion. Id. at 176.

First, the court explained that § 46110 is free of the APA and § 1331’s “defect of generality”

because it “specifically addresses” SSI orders and is “narrowly drawn” so as to avoid upending

the CSRA’s remedial scheme. Id. Second, the court found it “significant” that § 46110 was an

“independent source of federal court jurisdiction,” noting that the section “uses the word

‘jurisdiction’” and had long been read “as a jurisdictional grant.” Id. (citing 49 U.S.C. §

46110(c)). Third, the court explained that in contrast to the APA and § 1331, which were

enacted before the CSRA, Congress gave the courts of appeals jurisdiction over SSI orders “a

full 25 years after the CSRA was enacted and 15 years after Fausto,” thus making it “reasonable

to assume that Congress knew that this later grant of jurisdiction would affect those earlier

authorities.” Id. 4

Applying the above principles, this Court concludes that the CSRA’s comprehensive

scheme precludes this Court from considering Dr. Coulibaly’s D.C. law claim. 5 Dr. Coulibaly’s

claim under the D.C. Accrued Sick and Safe Leave Act, as amended, is unquestionably a claim

4

The CSRA also contains an express exception for actions brought under federal anti-

discrimination statutes, but this case does not implicate any such statute. 5 U.S.C. § 2302(d);

accord Nyunt, 589 F.3d at 448.

5

Defendants do not question the Court’s jurisdiction over Dr. Coulibaly’s D.C. law

claim. But this Court must confirm its jurisdiction even in the absence of a challenge. See Steel

Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998).

9

based on a local law not contemplated by the CSRA. See Guitart, 3 F.3d at 439; Berrios, 884

F.2d at 31–33; Broughton, 861 F.2d at 641–44. The CSRA provides the exclusive means for

covered federal employees to challenge employment actions “except where Congress specifies

otherwise,” and here, Congress has not “specifie[d] otherwise” through a D.C. statute that it did

not enact. Nyunt, 589 F.3d at 448 (citation omitted). Even assuming arguendo that Congress

could overcome CSRA preclusion by merely approving of a D.C. statute, see Gross v. Winter,

876 F.2d 165, 168 n.6 (D.C. Cir. 1989), the Court still concludes that Dr. Coulibaly cannot rely

on the D.C. Accrued Sick and Safe Leave Act because it does not “specif[y]” that a federal

employee has any right of action against his employing agency6 and contains no provision that

could be construed as an “independent source of federal court jurisdiction,” Lacson, 726 F.3d at

176.

Accordingly, the Court concludes that the CSRA precludes it from exercising jurisdiction

over Dr. Coulibaly’s claim under the D.C. Accrued Sick and Safe Leave Act, as amended.

2. Sovereign Immunity

The United States is “immune from suit save as it consents to be sued, and the terms of

consent to be sued in any court define that court’s jurisdiction to entertain the suit.” Fornaro v.

James, 416 F.3d 63, 66 (D.C. Cir. 2005) (citation omitted). Courts cannot find that “the United

6

The D.C. Accrued Sick and Safe Leave Act does not include the federal government or

its agencies in its definition of “employer” or mention federal employees in its definition of

“employee.” See D.C. Code § 32–131.01(2), (3). Dr. Coulibaly asserts in his filings that another

D.C. statute—the Wage Theft Prevention Amendment Act of 2014—“applies to any federal

employee.” Pl.’s Reply Ex. P, ECF No. 15. The complaint nowhere cites this statute, and “a

party may not amend its complaint or broaden its claims through summary judgment briefing.”

District of Columbia v. Barrie, 741 F. Supp. 2d 250, 263 (D.D.C. 2010). Even if Dr. Coulibaly

were to amend his complaint to include a claim under the Wage Theft Prevention Amendment

Act of 2014, the Court discerns nothing in the cited portion of the statute that gives federal

employees a right of action against their employer. The section cited by Dr. Coulibaly amended

a portion of the Minimum Wage Act Revision Act of 1992, which expressly excludes the federal

government from its definition of “employer.” See D.C. Code § 32–1002(3).

10

States has waived its sovereign immunity unless the waiver is ‘unequivocally expressed’ in an

Act of Congress.” Rochon v. Gonzales, 438 F.3d 1211, 1215 (D.C. Cir. 2006). However, “[i]f a

plaintiff seeks to recover damages from a defendant in his personal, individual capacity then

there is no sovereign immunity bar.” Clark v. Library of Cong., 750 F.2d 89, 103 (D.C. Cir.

1984).

The Court concludes that Title I of the FMLA contains an express waiver of sovereign

immunity. Because Dr. Coulibaly has sued the Secretary of State “in his official capacity,”

Compl. ¶ 5, and because the State Department received notice of the suit, any official-capacity

claim against the Secretary “is, in all respects other than name, to be treated as a suit against the

[State Department].” Kentucky v. Graham, 473 U.S. 159, 166 (1985). Title I of the FMLA

contains an express authorization for private individuals to sue federal agencies for the

commission of any “prohibited acts” enumerated in § 2615. See 29 U.S.C. §§ 2617(a)(1)

(defining liability), (a)(2) (providing for right of action against “any employer (including a public

agency)” in federal or state court); id. §§ 203(x), 2611(4)(A) (defining “public agency” for

purposes of FMLA to include federal agencies); see also Russell v. U.S. Dep’t of the Army, 191

F.3d 1016, 1018 (9th Cir. 1999) (contrasting Title I with Title II and concluding that the

“absence of express statutory authorization for . . . suits under Title II” renders sovereign

immunity applicable). Accordingly, sovereign immunity does not bar any claims under Title I

brought against the Secretary of State or any other defendant sued in his or her official capacity. 7

7

Although the complaint suggests that Dr. Coulibaly proceeds against the other fifteen

State Department officials in their individual capacity, it is unclear whether those defendants are

sued solely in their individual capacity. See Compl. ¶¶ 6–7. Even if Dr. Coulibaly proceeds

against those defendants in both their official and individual capacities, the Court’s conclusion as

to sovereign immunity would be the same. See Kentucky, 473 U.S. at 166 (treating suit against

officer sued in official capacity as suit against state entity); Clark, 750 F.2d at 103 (explaining

that sovereign immunity is not implicated in suits against officials in their individual capacity).

11

Dr. Coulibaly does not appear to advance any claim under Title II of the FMLA. See

Compl. ¶¶ 1, 2, 82 (expressly invoking Title I); see also id. ¶ 82 (asserting that Title II “cannot

be applied here to prevent Plaintiff” from seeking relief). But because pro se filings must be

generously construed, see Erickson v. Pardus, 551 U.S. 89, 94 (2007), to the extent that Dr.

Coulibaly does assert any claim under Title II, the Court concludes that such a claim would be

barred by sovereign immunity, at least as to any defendants sued in their official capacity, 8 given

that Title II does not expressly authorize suits against the federal government. See Russell, 191

F.3d at 1019. 9

The Court thus concludes that sovereign immunity does not bar Dr. Coulibaly’s claim

under Title I of the FMLA.

8

To the extent that Dr. Coulibaly brings any claims under Title II against defendants in

their individual capacity, the Court disposes of those claims below. See infra note 12.

9

Defendants argue that although the APA functions as a waiver of sovereign immunity,

the CSRA precludes Dr. Coulibaly from using the APA to obtain judicial review of his

grievance. See Mem. Supp. Defs.’ Mot. Dismiss 7–8. This is a correct proposition of law, see

supra Part IV.A.1 (discussing CSRA preclusion of APA claims), but it has no bearing on this

case. Dr. Coulibaly need not invoke the APA’s sovereign immunity waiver—and indeed does

not do so—because he relies on Title I of the FMLA, which, as explained above, already

contains an express waiver of sovereign immunity. And to the extent that Dr. Coulibaly seeks

reinstatement or any relief other than money damages, see Compl. ¶¶ 77, 79, he would still not

need the APA’s sovereign immunity waiver for actions for “relief other than money damages,” 5

U.S.C. § 702, because Title I of the FMLA authorizes plaintiffs to seek from the federal

government “such equitable relief as may be appropriate, including . . . reinstatement,” 29 U.S.C.

§ 2617(a)(1)(B).

Defendants also argue that Dr. Coulibaly cannot rely on the Federal Tort Claims Act

(“FTCA”) for any waiver of sovereign immunity. See Mem. Supp. Defs.’ Mot. Dismiss 6–7.

But the Court does not discern an FTCA claim from the complaint, and because Dr. Coulibaly

disclaims any reliance on the FTCA in his filings, the Court will not consider this issue. See

Mem. Supp. Pl.’s Mot. Summ. J. 19 (“FTCA and FMLA are two different cases and there is no

issue of sovereign immunity for FMLA lawsuit.”).

12

3. Personal Jurisdiction

“Before a federal court may exercise personal jurisdiction over a defendant, the

procedural requirement of service of summons must be satisfied.” Mwani v. bin Laden, 417 F.3d

1, 8 (D.C. Cir. 2005) (citation omitted). A federal official sued in his personal capacity must be

personally served in accordance with Federal Rule of Civil Procedure 4(e). See Simpkins v. D.C.

Gov’t, 108 F.3d 366, 369 (D.C. Cir. 1997) (holding that Bivens defendants “must be served as

individuals, pursuant to Rule 4(e)”). When a plaintiff proceeds in forma pauperis, however, he

is “entitled to rely on the United States Marshal[s] Service to effectuate service of process.”

Dumaguin v. Sec’y of Health & Human Servs., 28 F.3d 1218, 1221 (D.C. Cir. 1994); see also 28

U.S.C. § 1915(d) (providing that “[t]he officers of the court shall issue and serve all process” in

cases brought by a plaintiff proceeding in forma pauperis). The U.S. Marshal’s failure to perfect

service is “automatically good cause” under Rule 4(m). Dumaguin, 28 F.3d at 1221 (citation

omitted); see also Fed. R. Civ. P. 4(m) (authorizing dismissal of action for failure to serve after

120 days absent showing of “good cause”).

Defendants suggest that Dr. Coulibaly failed to perfect service on defendants sued in their

personal capacity because the complaint was not delivered personally to any of the individual

defendants or to an agent designated to receive service. See Mem. Supp. Defs.’ Mot. Dismiss

12. 10 But as Dr. Coulibaly explains, he is proceeding in forma pauperis and relied on the U.S.

Marshal to effect service. See Mem. Supp. Pl.’s Mot. Summ. J. 25. Moreover, the record shows

10

The question of whether the FMLA permits actions against individuals as opposed to

only employers is the subject of a circuit split. Compare Mitchell v. Chapman, 343 F.3d 811,

829 (6th Cir. 2003) (holding that FMLA does not impose individual liability); Wascura v.

Carver, 169 F.3d 683, 687 (11th Cir. 1999) (same), with Modica v. Taylor, 465 F.3d 174, 187

(5th Cir. 2006) (holding that FMLA permits individual liability for public officials); Darby v.

Bratch, 287 F.3d 673, 681 (8th Cir. 2002) (same). Because Defendants do not raise this issue in

their motion, the Court need not address it here.

13

that Dr. Coulibaly provided the names and business addresses of all defendants, and Defendants

have not contended that this information was insufficient. See Process Receipt and Return, ECF

Nos. 4, 5. Assuming (without deciding) that service by the U.S. Marshal was defective, the

Court will not penalize Dr. Coulibaly for any error not of his own making. See Dumaguin, 28

F.3d at 1221. 11

Accordingly, the Court will direct the Marshals Service to again attempt personal service

on the individual defendants (unless counsel agrees to accept service on their behalf).

* * *

The Court dismisses Dr. Coulibaly’s claim under the D.C. Accrued Sick and Safe Leave

Act, as amended, because this Court’s jurisdiction is precluded by the CSRA’s comprehensive

remedial scheme. The Court also holds that this Court’s power to hear Dr. Coulibaly’s claim

under Title I of the FMLA is not barred by sovereign immunity and not foreclosed by lack of

personal jurisdiction.

B. Failure to State a Claim

Having concluded that jurisdiction lies over Dr. Coulibaly’s claim under Title I of the

FMLA, the Court now considers whether Dr. Coulibaly has adequately stated a claim. In their

motion, Defendants contend that dismissal is warranted because, under any reading of the

complaint, Dr. Coulibaly is not an “eligible employee” under Title I of the FMLA. See Mem.

Supp. Defs.’ Mot. Dismiss 10. 12

11

Defendants contest the adequacy of service only as to those defendants sued in their

personal capacities. See Mem. Supp. Defs.’ Mot. Dismiss 11–12. Accordingly, they have

waived any challenge to personal jurisdiction on the basis of defective service as to other

defendants or to any defendants sued in their official capacities. See Simpkins, 108 F.3d at 368.

12

Defendants also argue that Dr. Coulibaly cannot state a claim under Title II of the

FMLA because that title does not provide a right of action. See Mem. Supp. Defs.’ Mot. Dismiss

9–10 (asserting that “Plaintiff has no private right of action under the FMLA” and citing cases

14

Title I of the FMLA protects the right of an “eligible employee” to take medical leave for

a “serious health condition.” See FMLA, Pub. L. No. 103–3, § 102(a), 107 Stat. 6, 9 (1993), as

codified at 29 U.S.C. § 2612(a)(1). “Eligible employee” is defined under Title I to mean

an employee who has been employed—

(i) for at least 12 months by the employer with respect to

whom leave is requested under section 2612 of this title; and

(ii) for at least 1,250 hours of service with such employer

during the previous 12-month period.

29 U.S.C. § 2611(2)(A). Title I further provides that “employee” has the “same meanin[g]” as

that given to the term under 29 U.S.C. § 203(e), which defines “employee” for the purposes of

the Fair Labor Standards Act (“FLSA”). See 29 U.S.C. § 2611(3). Courts, in turn, have

determined “employee” status under the FLSA by looking to “economic reality” rather than

“technical concepts” and examining “the extent to which typical employer prerogatives govern

the relationship between the putative employer and employee.” Morrison v. Int’l Programs

Consortium, Inc., 253 F.3d 5, 11 (D.C. Cir. 2001) (citations omitted). Title I’s coverage within

the Executive Branch includes certain part-time employees and temporary employees serving

terms of one year or shorter. See 29 C.F.R. § 825.109(b). A federal employee covered by the

FMLA cannot be covered by both Title I and Title II, given that Title I’s “eligible employee”

definition expressly excludes all employees falling under Title II. See 29 U.S.C. § 2611(2)(B)(i)

(“The term ‘eligible employee’ does not include . . . any Federal officer or employee covered

under subchapter V of chapter 63 of title 5[.]”).

addressing Title II). The Court has already concluded that sovereign immunity would bar any

action under Title II as to any defendants sued in their official capacity. See supra Part IV.A.2.

To the extent that Dr. Coulibaly asserts a Title II claim against any defendants in their individual

capacity, the Court agrees with Defendants and holds that Dr. Coulibaly has failed to state a

claim because Title II does not create an implied right of action. See Mann v. Haigh, 120 F.3d

34, 37 (4th Cir. 1997); accord Russell, 191 F.3d at 1019.

15

Title II covers “[m]ost employees of the [federal] government . . . , if they are covered by

the FMLA.” 29 C.F.R. § 825.109(a); accord Mann v. Haigh, 120 F.3d 34, 36 (4th Cir. 1997).

As with “eligible” employees under Title I, employees covered under Title II must have “at least

12 months of service.” 5 U.S.C. § 6381(1)(B). Title II employees must also satisfy requirements

relating to the manner of their appointment and nature of their work. Specifically, Title II

defines an “employee” to mean:

an officer and an individual who is—

(1) appointed in the civil service by one of the following

acting in an official capacity—

(A) the President;

(B) a Member or Members of Congress, or the

Congress;

(C) a member of a uniformed service;

(D) an individual who is an employee under this

section;

(E) the head of a Government controlled

corporation; or

(F) an adjutant general designated by the Secretary

concerned under section 709(c) of title 32;

(2) engaged in the performance of a Federal function under

authority of law or an Executive act; and

(3) subject to the supervision of an individual named by

paragraph (1) of this subsection while engaged in

the performance of the duties of his position.

5 U.S.C. § 2105(a); see also id. §§ 6381(1)(A); 6301(2) (incorporating § 2105 definition of

“employee”). Applying this “restrictiv[e]” definition, the D.C. Circuit has taught that “[a]ll three

of the statute’s subsections must be satisfied” and that the third criterion pertaining to

supervision “in importance far exceeds the others.” Lodge 1858, Am. Fed’n of Gov’t Emps. v.

Webb, 580 F.2d 496, 504 (D.C. Cir. 1978) (concluding that Civil Service Commission did not err

in finding that certain contractors were not employees under NASA’s enabling act, which

incorporates § 2105). “As used in this context, supervision means control of the individual

workman’s physical conduct, not just oversight.” Id. (citations omitted). Excluded from

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“employee” status under Title II are individuals “employed on a temporary or intermittent basis,”

5 U.S.C. § 6381(1)(A), “part-time employee[s] who d[o] not have an established regular tour of

duty during the administrative workweek,” id. § 6301(2)(B)(ii), and other enumerated groups

such as individuals employed by the District of Columbia and the U.S. Postal Service, see id. §§

6381(1)(A), 6301(2)(B)(i)–(iv), (vi–viii), (x–xiii); § 2105(b)–(e). See also 5 C.F.R. § 630.1201

(summarizing Title II’s requirements for “employee” status).

Here, Defendants have not demonstrated that Dr. Coulibaly’s allegations necessarily

render him not an “eligible employee” under Title I of the FMLA. Defendants’ argument

proceeds from a factual premise that would appear to make their task rather easy—that “Plaintiff

claims that he was a federal employee for under a year.” Mem. Supp. Defs.’ Mot. Dismiss 10.

Such an allegation would indeed doom Dr. Coulibaly’s claim given that service “for at least 12

months” is necessary to render an employee “eligible” for Title I’s protections. 29 U.S.C. §

2611(2)(A). But the problem with Defendants’ factual premise is that the complaint plausibly

alleges that Dr. Coulibaly worked for thirteen years for the Department of State “without

interruption” and that he therefore satisfies Title I’s time-in-service and hours requirements—i.e.,

having “worked continuously for [his] employer for the last 12 months before his termination”

and for “at least 1,250 hours over the last 12 months.” Compl. ¶ 84. To be sure, the complaint

alleges that Dr. Coulibaly had served in the Excepted Service for less than one year at the time of

his termination, before which period he was a contractor. See Compl. ¶¶ 75, 83; Limaye letter of

May 27, 2011, Compl. Ex. at 113. But “employee” status under Title I turns on “economic

reality” rather than job titles, and Defendants do not explain why, as a matter of law, Dr.

17

Coulibaly’s previous contractor work performed directly for the agency cannot be considered in

evaluating his status as an “employee.” Morrison, 253 F.3d at 11. 13

Defendants apparently ignore Dr. Coulibaly’s allegations that his time in service

exceeded 12 months for purposes of their Title I analysis because they rely on another incorrect

premise—a legal, rather than factual, premise concerning the structure of the FMLA.

Defendants seem to be under the impression that if Dr. Coulibaly was an employee for 13 years,

he is covered by Title II only and has no right of action, but that if he was an employee for less

than one year, he would fall under Title I and have insufficient time in service to be eligible to

bring an action. Proceeding from this view of the relationship between Title I and Title II and

believing that an allegation of service exceeding 12 months would sweep Dr. Coulibaly back

under the coverage of Title II, which lacks a private right of action, Defendants assume arguendo

that the complaint alleges employment of less than 12 months. See Mem. Supp. Defs.’ Mot.

Dismiss 10. Defendants are correct, of course, insofar as Title I and Title II of the FMLA govern

mutually exclusive groups of federal employees; as explained above, a federal employee can be

covered under either Title I or Title II but not both. See 29 U.S.C. § 2611(2)(B)(i). But the

determination of which title governs an employee does not hinge solely on that employee’s time

in service because both titles expressly require service of “at least 12 months.” 5 U.S.C. §

6381(1)(B) (defining “employee” under Title II); 29 U.S.C. § 2611(2)(A) (defining “eligible

employee” under Title I).

Here, if Dr. Coulibaly had more than 12 months of service as his complaint alleges, then

determining whether he falls under Title I or Title II would require an analysis of both titles’

13

This issue is further complicated by Dr. Coulibaly’s allegation that the State

Department had wrongfully classified him and others as contractors rather than employees. See

Compl. ¶¶ 75, 83.

18

detailed statutory and regulatory framework, as set forth above. But Defendants’ motion to

dismiss fails to set forth such an analysis based on the complaint’s allegations and the exhibits in

the record. For instance, assuming the truth of Dr. Coulibaly’s allegation that his time in service

exceeded 12 months, the Court cannot determine whether his allegations concerning his

employment history and status compel a conclusion that he satisfies the appointment, job

function, and supervision requirements for Title II coverage, 5 U.S.C. § 2105(a); Lodge 1858,

580 F.2d at 504, such that he cannot be a Title I employee, see 29 U.S.C. § 2611(2)(B)(i). In the

alternative, even assuming that for some reason Dr. Coulibaly is not covered under Title II and

thus not automatically excluded from Title I coverage, see id., the Court has been presented with

no argument that Dr. Coulibaly’s alleged service as a contractor would fail the “economic

reality” test, Morrison, 253 F.3d at 11, such that he would have insufficient time-in-service to

qualify as an “eligible employee” under Title I, see 29 U.S.C. § 2611(2)(A). Nor have

Defendants advanced any other argument as to why Dr. Coulibaly’s complaint fails to plausibly

allege that he is an “eligible employee” under Title I. 14

In sum, Defendants’ incomplete analysis of the FMLA’s structure leads them to assume

away the complaint’s allegation that Dr. Coulibaly satisfied Title I’s time-in-service requirement

and then conclude (conveniently for Defendants) that the complaint has not plausibly alleged that

Dr. Coulibaly is an “eligible employee” under Title I. Because Defendants may not ignore Dr.

Coulibaly’s non-conclusory factual allegations, and because Defendants do not move to dismiss

the Title I claim on any grounds other than time in service, the Court denies the motion to

14

Although an employee cannot be covered under both Title I and Title II, see 29 U.S.C.

§ 2611(2)(B)(i), it is entirely possible (and consistent with the FMLA’s text and structure) that an

employee is not covered by either Title. See 29 C.F.R. § 825.109 (“Most employees of the

government of the United States, if they are covered by the FMLA, are covered under Title II of

the FMLA . . . .” (emphasis added)).

19

dismiss as to this claim. See Intelsat USA Sales Corp. v. Juch-Tech, Inc., 24 F. Supp. 3d 32, 48

n.10 (D.D.C. 2014) (“All federal courts are in agreement that the burden is on the moving party

in a Rule 12(b)(6) motion to prove that no legally cognizable claim for relief exists[.]”

(alterations and citation omitted)).

C. Summary Judgment

Dr. Coulibaly seeks summary judgment on his claim under Title I of the FMLA, which

the Court has concluded survives Defendants’ motion to dismiss. See generally Pl.’s Mot.

Summ. J. Because Dr. Coulibaly has not shown the absence of a genuine issue for trial, the

Court declines to enter judgment in his favor on his FMLA claim.

Title I of the FMLA provides that a covered “eligible employee” has the right to take

medical leave for a “serious health condition.” 29 U.S.C. § 2612(a)(1). Section 105(a)(1) of

Title I makes it unlawful “for any employer to interfere with, restrain, or deny the exercise or the

attempt to exercise, any right” provided under Title I, id. § 2615(a)(1), while section 105(a)(2)

makes it unlawful “for any employer to discharge or in any other manner discriminate against

any individual for opposing any practice made unlawful” by Title I, id. § 2615(a)(2); see also

Gordon v. U.S. Capitol Police, 778 F.3d 158, 161 (D.C. Cir. 2015) (noting that the two

subsections evince “a good deal of overlap”). At summary judgment, an employee with

circumstantial evidence supporting an FMLA retaliation claim can establish a prima facie case

by showing that (1) he “engaged in a protected activity under this statute”; (2) he “was adversely

affected by an employment decision”; and (3) “the protected activity and the adverse

employment action were causally connected.” Gordon, 778 F.3d at 161 (quoting Gleklen v.

Democratic Cong. Campaign Comm., Inc., 199 F.3d 1365, 1368 (D.C. Cir. 2000) (applying

McDonnell Douglas burden-shifting framework and articulating prima facie elements for FMLA

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retaliation claim)). 15 “Temporal proximity is often found sufficient to establish the requisite

causal connection” for FMLA retaliation claims. Gleklen, 199 F.3d at 1368.

Remarkably, in opposing summary judgment, Defendants make no attempt to

demonstrate a genuine dispute of material fact, instead resting entirely on the arguments

advanced in their motion to dismiss. See generally Defs.’ Opp’n, ECF No. 13. Nonetheless, Dr.

Coulibaly, as the party seeking summary judgment, bears the “initial responsibility” of

demonstrating “the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323; see

also id. at 330–31 (Brennan, J., dissenting on other grounds) (explaining that “ultimate burden of

persuasion” to establish the lack of a genuine dispute of material fact “always remains on the

moving party”). For the reasons that follow, the Court concludes that Dr. Coulibaly has not

carried this initial burden.

In short, it is unclear on this record whether Dr. Coulibaly is in fact an “eligible” federal

employee under Title I of the FMLA. 29 U.S.C. § 2611(2). Although Defendants have not

explained why the complaint’s allegations foreclose a finding that Dr. Coulibaly is covered under

Title I (thus requiring the denial of Defendants’ motion to dismiss), the limited record evidence

does not compel such a finding, either, given the fact-intensive analysis required. See 5 U.S.C.

§§ 6381(1)(A), 6301(2), 2105; 29 C.F.R. § 825.109(b); Morrison, 253 F.3d at 11 (articulating

“economic reality” test); see also Celotex, 477 U.S. at 331 (Brennan, J., dissenting on other

grounds) (“If the moving party will bear the burden of persuasion at trial, that party must support

15

Because Dr. Coulibaly’s complaint styles his claim as one for “retaliation” under the

FMLA, not “interference,” the Court here opts for the former characterization. See Compl. ¶¶ 1,

91, 93. In any event, Gordon suggests that the legal framework would be the same regardless of

whether Dr. Coulibaly’s FMLA claim were styled or construed as one for retaliation or

interference. See Gordon, 778 F.3d at 161–62.

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its motion with credible evidence—using any of the materials specified in Rule 56(c)—that

would entitle it to a directed verdict if not controverted at trial.”). 16

Because the Court concludes that the record, as it currently stands, cannot conclusively

establish Dr. Coulibaly’s status as an eligible Title I employee, the Court need not decide

whether Dr. Coulibaly has otherwise established the elements of an FMLA interference or

retaliation claim. The Court notes, however, that Dr. Coulibaly has proffered considerable

evidence that might very well establish a prima facie case under Title I, aside from the

unresolved issue of his employee status. Dr. Coulibaly’s evidence shows that his termination

came only a few days after he returned from medical leave, see Termination letter of Apr. 2,

2012, Pl.’s Ex. 3, ECF No. 11-1; Hamlin report of Mar. 10, 2012, Pl.’s Ex. 1, ECF No. 11-1, and

that at least one of the proffered reasons for his termination was his “failure to follow established

procedures for requesting leave,” notwithstanding the fact that his leave was already approved,

see Leave approval email of Mar. 28, 2012, Pl.’s Ex. C, ECF No. 15; see also 29 U.S.C. §

2615(a)(1) (making it unlawful “to interfere with, restrain, or deny the exercise of or the attempt

to exercise, any right” provided under Title I (emphasis added)). Moreover, the Court reminds

the parties that “if the plaintiff establishes the elements of a prima facie case, and the defendant

remains silent or otherwise fails to meet its burden of production, judgment must be rendered for

the plaintiff.” Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 1151 (D.C. Cir. 2004) (citing

Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981)).

16

In support of his motion for summary judgment, Dr. Coulibaly has attached an exhibit

that appears highly relevant to the “economic reality” test—his contract under the Blanket

Purchase Agreement, which governed his employment prior to his appointment to the Excepted

Service. See BPA Contract, Pl.’s Ex. 5, ECF No. 11-1; Morrison, 253 F.3d at 11. The contract

contains a detailed description of “requirements” for Dr. Coulibaly’s contract position. Even

assuming that the contract terms alone could satisfy the “economic reality” test, the Court still

concludes that the current record does not compel a conclusion that Dr. Coulibaly satisfied the

additional statutory criteria for “eligible employee” status under Title I.

22

Because Dr. Coulibaly has not demonstrated the absence of a genuine dispute of material

fact at this stage in the litigation, the Court denies his motion for summary judgment.

V. CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss (ECF No. 9) is GRANTED IN

PART and DENIED IN PART; Dr. Coulibaly’s motion for summary judgment (ECF No. 11) is

DENIED; and Dr. Coulibaly’s motion to expedite (ECF No. 16) is DENIED AS MOOT. An

order consistent with this Memorandum Opinion is separately and contemporaneously issued.

Dated: September 11, 2015 RUDOLPH CONTRERAS

United States District Judge

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