# Coulibaly v. Kerry

> District Court, District of Columbia · September 30, 2016 · 213 F. Supp. 3d 93

URL: https://www.frixlaw.com/law-library/cases/4077368

## Case

- **Full name:** Tiemoko COULIBALY, Plaintiff, v. John KERRY, U.S. Secretary of State, Et Al., Defendants
- **Court:** District Court, District of Columbia
- **Decided:** September 30, 2016
- **Citations:** 213 F. Supp. 3d 93; 95 Fed. R. Serv. 3d 1186; 2016 U.S. Dist. LEXIS 135154; 2016 WL 5674821
- **Precedential status:** Published
- **Opinion:** Opinion by Contreras
- **Judges:** Judge Rudolph Contreras
- **Nature of suit:** Civil
- **Cited by:** 57 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4077368

## How later opinions describe it (automated extraction)

- finding that “where the gravamen of the complaint is Title VII discrimination, the only remedy available is under Title VII”
- explaining that Title VII precludes plaintiffs from bringing common law contract claims arising out of the conduct giving rise to their Title VII claims

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

TIEMOKO COULIBALY, :
:
Plaintiff, : Civil Action No.: 14-0189 (RC)
:
v. : Re Document Nos.: 30, 36, 39
:
JOHN KERRY, U.S. Secretary of State, et al., :
:
Defendants. :

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

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)

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

1
At the motion-to-dismiss stage, the Court presumes that the plaintiff’s factual
allegations in the complaint are true. See, e.g., United States v. Philip Morris, Inc., 116 F. Supp.
2d 131, 135 (D.D.C. 2000). When citing to documents outside of the pleadings, the Court views
the evidence in the light most favorable to Dr. Coulibaly. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986) (explaining that, in the summary judgment context, “[t]he evidence of
the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor”).
The Court cites to Defendants’ statement of material facts when Defendants’ version of the facts
agrees with Dr. Coulibaly’s.

2
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.

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”

Defendants argue that, in violation of this Court’s local rule, Dr. Coulibaly did not submit
a “separate concise statement of genuine issues setting forth all material facts as to which . . .
there exists a genuine issue necessary to be litigated,” and so Defendants’ own statement of
material facts “should be deemed admitted.” Defs.’ Reply Pl.’s Opp’n Defs.’ Mot. Dismiss or, in
the Alt., for Summ. J. (“Defs.’ Reply”) at 5−6, ECF No. 42 (quoting D.D.C. Civ. R. 7(h)(1)).
In his opposition brief, however, Dr. Coulibaly does list a series of facts that he titles
“Statement of Undisputed Material Facts Established by the Agency’s Official Extensive EEO
Report of Investigation (ROI) as to Which There Is No Genuine Dispute . . . .” Mot. Leave Pl.’s
Fourth Am. Compl. & Pl.’s Resp. Gov’t Mot. Dismiss or in the Alt. Summ. J. (“Pl.’s Resp.”) at
118, ECF No. 36-1. And, while disorganized and quite repetitive, Dr. Coulibaly’s statement of
facts does attempt to cite facts gleaned from various exhibits that he attached to his opposition
brief. See, e.g., Pl.’s Resp. ¶¶ 237, 244, 256. Because Dr. Coulibaly’s statement thus loosely
complies with Local Civil Rule 7(h)(1), the Court declines to deem Defendants’ statement of
facts admitted. See generally D.D.C. Civ. R. 7(h)(1) (requiring briefs opposing summary
judgment to include merely “a separate concise statement of genuine issues setting forth all
material facts as to which it is contended there exists a genuine issue necessary to be litigated,
which shall include references to the parts of the record relied on to support the statement”).

3
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

4
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.

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

5
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. Coulibaly, Mr. Atayi “wanted to hire as soon as possible another

teacher,” Frederic Hegbe, who shared Mr. Atayi’s country of origin (Togo). Compl. ¶ 55.

Because Mr. Hegbe purportedly possessed less seniority, less experience, and less education than

Dr. Coulibaly, Mr. Atayi had to “obstruct[] . . . [Dr. Coulibaly’s] appointment by using

pretext[ual reasons].” Id. Dr. Coulibaly contends that, to that end, Mr. Atayi “avoided

presenting” Dr. Coulibaly with the June 15, 2007 position description because he knew that

Dr. Coulibaly was expecting the appointment and “would have accepted the hiring.” Id. ¶ 64.

6
Dr. Coulibaly buttresses his claims of wrongdoing on Mr. Atayi’s part by detailing ways

in which Mr. Atayi allegedly created a “hostile work environment,” perhaps because he was

envious of Dr. Coulibaly’s education and communications with journalists. See id. ¶¶ 54, 65, 68,

73–75. According to Dr. Coulibaly, Mr. Atayi would “constantly call [Dr. Coulibaly] to order

him to go buy [Mr. Atayi’s] monthly parking permit . . . , just to show he was the boss.” Id. ¶ 74.

Dr. Coulibaly further alleges that Mr. Atayi made him beg for his contract renewal each year. Id.

¶¶ 74–75. And Mr. Atayi had purportedly told him that “if [he] want[ed] to be [a] direct hire,

[he] just need[ed] to have an affair with Dr. Jane Kamide,” the head of FSI’s French section

before Mr. Atayi. Id. ¶ 73.

Alleged Workplace Violence

Dr. Coulibaly alleges that two years later, on March 26, 2009, he was “a victim of

workplace violence.” Notice of Right to File a Discrimination Complaint ¶ 3, Defs.’ Facts

Ex. JJ, ECF No. 30-36 (describing Dr. Coulibaly’s allegation); see also Compl. ¶ 158; Notice of

Dismissed Allegations, Defs.’ Facts Ex. II, at 6, ECF No. 30-35.2 He claims that, after he

informed his then-supervisors about the incident, “[t]hey ignored his claim and did nothing.”

Notice of Right to File a Discrimination Complaint ¶ 3. Dr. Coulibaly allegedly then “went to

Diplomatic Security” to report the incident, but also received no redress from that source:

another FSI manager, Debra Blake, purportedly told him that “this investigation must be closed.”

Id. (internal quotation mark omitted).

Although Ms. Blake allegedly assured Dr. Coulibaly that “there [would] be no

retaliation” against him, Dr. Coulibaly claims that he felt “hostility” against him on the part of

2
Because the pagination of Defendants’ Exhibit II does not run consecutively, the Court
cites to the page numbers automatically generated by ECF.

7
FSI management. Id. Indeed, Dr. Coulibaly claims that Ms. Blake told him that “he was lucky

he didn’t lose his job after contacting Diplomatic Security,” “warned him to not file [any more]

complaint[s] against [FSI] management,” and said that, if he did, “he would lose his job.”

Compl. ¶ 161. Accordingly, Dr. Coulibaly claims that “was not aware of his rights and was in

fear of [losing] his job,” so he did not timely bring the workplace violence incident—which he

later alleged to be discriminatory—to the attention of the Department of State’s Office of Civil

Rights. Id.; see Notice of Dismissed Allegations, at 6–7, ECF No. 30-35 (dismissing

Dr. Coulibaly’s 2009 allegations, which he later asserted before the Office of Civil Rights,

because he did not bring them “within 45 calendar days from the date of the matter alleged to be

discriminatory”).

Further Efforts to Become an FSI Employee

Dr. Coulibaly believes that, because he contacted Diplomatic Security, FSI declined to

hire him as an employee in June 2009, even though he was “clearly the best candidate.” Notice

of Right to File a Discrimination Complaint ¶ 3; see also Compl. ¶ 158. He further contends

that, at the end of the 2009 hiring process, FSI was considering “two candidates for two

position[s].” Compl. ¶ 158. He reports that, even though Dr. Coulibaly was one of the

candidates, FSI hired only the other candidate, who had “less education and less training”; FSI

“decided to close the other position” and declined to hire Dr. Coulibaly. Id. As with the

workplace violence incident, Dr. Coulibaly later claimed that FSI’s failure to hire him was

discriminatory, but he claims that he did not timely bring the failure to hire to the attention of the

Office of Civil Rights because he “was in fear of [losing] his job.” Compl. ¶ 161; see Notice of

Dismissed Allegations, at 6–7, ECF No. 30-35 (dismissing both of Dr. Coulibaly’s allegations

arising from 2009 events).

8
B. Employment as an FSI Employee (2011-2012)

Employment Status

On June 19, 2011, FSI at last hired Dr. Coulibaly as an employee. See Compl. ¶¶ 46,

121; Notification of Personnel Action, Defs.’ Facts Ex. C, ECF No. 30-3 (showing that

Dr. Coulibaly began working as a Department of State employee on June 19, 2011).

Dr. Coulibaly’s appointment as an employee was for a term of two years, which included a

one-year trial period. See Notification of Personnel Action (noting Dr. Coulibaly’s temporary

appointment and one-year trial period); Statement of Understanding, Defs.’ Facts Ex. E, ECF

No. 30-5 (noting Dr. Coulibaly’s two-year appointment). Upon his hire, Dr. Coulibaly signed a

statement of understanding, thereby accepting that he could “be terminated at any time

depending on the needs of the [Department of State].” See Statement of Understanding.

As a Language and Culture Instructor (or, officially, a “Training Instructor”),

Dr. Coulibaly’s major duties included “teaching speaking, reading, listening comprehension and

writing . . . skills to a full range of students” and “provid[ing] major substantive input for the

planning, design, development and evaluation of the course content.” Position Description,

Defs.’ Facts Ex. F, at 3–4, ECF No. 30-6.3 During Dr. Coulibaly’s employment at FSI, as

before, James North served as FSI’s Associate Dean. See North Aff. ¶¶ Q1, Q3, Defs.’ Facts

Ex. G, ECF No. 30-7. When Dr. Coulibaly first began working as an employee, Language

Training Supervisor (LTS) Laura Fyfe, who is white and from the United States, served as

Dr. Coulibaly’s first-line supervisor. See Fyfe Aff. ¶¶ Q1, Q3–Q6, Q46, Defs.’ Facts Ex. H, ECF

No. 30-8. Starting in January 2012, LTS Phillipe Casteuble, who is white and from France,

3
Because the Position Description is not consecutively paginated throughout, the Court
cites to the page numbers automatically generated by ECF.

9
served as Dr. Coulibaly’s new first-line supervisor. See Casteuble Aff. ¶¶ Q1, Q3–Q6, Defs.’

Facts Ex. J, ECF No. 30-10.

Alleged Preferential Treatment Toward Colleague

The same day that Dr. Coulibaly began working as an FSI employee, he alleges that FSI

also hired Aitmouloud Ahmed Hmimiche, who Dr. Coulibaly asserts was FSI Division Director

Debra Blake’s “boyfriend.” Compl. ¶ 121.4 Dr. Coulibaly alleges that he complained about

favoritism that FSI showed toward Mr. Hmimiche, but that his action resulted in Director Blake

becoming “mad” and “very agitated.” Id. Dr. Coulibaly contends that Director Blake’s

emotional response was a motive for later retaliation and adverse actions taken against

Dr. Coulibaly. See id.

Other employees in FSI’s French section shared Dr. Coulibaly’s views about Director

Blake and Mr. Hmimiche. For instance, another French teacher, Paulette De Launay-Fogg,

exactly corroborated Dr. Coulibaly’s views. See EEO Investigation Report at 34–35, ECF

No. 36-3 (summarizing the affidavit that Ms. De Launay-Fogg completed for the EEO

investigation); 5 see also De Launay-Fogg Aff., EEO Investigation Report at 1374–76, Coulibaly

v. Kerry, No. 14-0712 (D.D.C. Mar. 4, 2016), ECF No. 26-12 (reproducing Ms. De Launay-

Fogg’s affidavit).6 She states that Dr. Coulibaly and Mr. Hmimiche became employees on the

4
The Court uses the written name for Mr. Hmimiche that Dr. Coulibaly uses in his
complaint. See Compl. ¶ 121.
5
Because the initial exhibits appended to Dr. Coulibaly’s opposition brief are not
consecutively paginated, the Court also includes the page number automatically generated by
ECF.
6
In Dr. Coulibaly’s related case before this Court, defendants in that case have filed the
complete EEO Investigation Report generated in response to Dr. Coulibaly’s December 20, 2011
allegations. Compare EEO Investigation Report, ECF Nos. 36-3, 36-4 (reproducing just pages
1–227 and 742–970 of the report), with EEO Investigation Report, Coulibaly v. Kerry,
No. 14-0712 (D.D.C. Mar. 4, 2016), ECF Nos. 26-1 to -12 (reproducing the entire 1418-page
report). The Court takes judicial notice of publicly filed documents in related litigation. See

10
same day, but that they “were treated very differently.” De Launay-Fogg Aff. ¶ Q6, EEO

Investigation Report at 1375. Mr. Himiche’s preferential treatment, she asserted, arose from the

fact that he and Director Blake were a “couple,” a fact that Ms. De Launay-Fogg contends was

“common knowledge” at FSI. Id. She asserts that she saw Director Blake “caressing”

Mr. Hmimiche’s neck, that Mr. Hmimiche was “always running into [Director Blake’s] office,”

and that “[m]any times, they were seen . . . leaving the school together.” Id.

Likewise, learning consultant Fatima Smith stated that “it was evident that [Director]

Blake had developed an intimate and seemingly romantic relationship with Mr. Hmimiche” and

that Mr. Hmimiche “clear[ly] received preferential treatment from [Director] Blake and [LTS]

Fyfe.” Smith Aff. ¶ Q6, EEO Investigation Report at 1365, Coulibaly v. Kerry, No. 14-0712

(D.D.C. Mar. 4, 2016), ECF No. 26-12. Ms. Smith emphasized how Mr. Hmimiche’s

qualifications were inferior to Dr. Coulibaly’s: “Whereas Dr[.] Coulibaly is highly qualified with

a Ph[.D] and . . . is a seasoned French language teacher with many many years of experience,

Mr. Hmimiche does not have the education or the teaching experience comparable to Dr[.]

Coulibaly’s.” Id. Yet, Ms. Smith observed, “Mr. Hmimiche’s teaching approach was never

questioned by either [LTS] Fyfe or [Director] Blake,” and Mr. Hmimiche later received tenure as

an FSI instructor. Id.

Evidence indicates that, at one point, Dr. Coulibaly complained to LTS Fyfe about a

change in his teaching schedule and accused FSI management of changing the schedule to

accommodate Mr. Hmimiche. See Lauterbach Aff. ¶ Q6, EEO Investigation Report at 1360,

Coulibaly v. Kerry, No. 14-0712 (D.D.C. Mar. 4, 2016), ECF No. 26-12 (discussing an email

Lewis v. Drug Enf’t Admin., 777 F. Supp. 2d 151, 159 (D.D.C. 2011) (citing Covad Commc’ns
Co. v. Bell Atl. Corp., 407 F.3d 1220, 1222 (D.C. Cir. 2005)) (“The court may take judicial
notice of public records from other court proceedings.”).

11
LTS Fyfe sent in response to the complaint). And Dr. Coulibaly’s former colleague, language

instructor Marie-Paule Lauterbach, shared an office space with him and asserts that she saw an

email in which LTS Fyfe responded to Dr. Coulibaly’s complaint and criticized him by calling

him by the pejorative term “bean counter.” Id. ¶¶ Q1, Q6, EEO Investigation Report at 1359–60.

The email was supposedly “recalled almost immediately after [Dr. Coulibaly] had received it and

after he had shown it to [Ms. Lauterbach].” Id.

Conflict with Supervisor Laura Fyfe

Meanwhile, Dr. Coulibaly and his initial FSI supervisor, LTS Fyfe, began to experience

conflict over expectations for Dr. Coulibaly’s job responsibilities. LTS Fyfe recounts that, after

establishing Dr. Coulibaly’s “work commitments” on June 20, 2011, she met with Dr. Coulibaly

on July 8, 2011 for a performance discussion. Email from Laura Fyfe (Nov. 7, 2011), EEO

Investigation Report at 721, Coulibaly v. Kerry, No. 14-0712 (D.D.C. Mar. 4, 2016), ECF

No. 26-7. LTS Fyfe states that, during the discussion, she recommended that Dr. Coulibaly

“work on his teaching portfolio by developing a specific skill since he [didn’t] have pedagogical

training.” Id. To that end, LTS Fyfe states that she suggested that Dr. Coulibaly develop a

“reading lesson plan.” Id. In a later meeting, the record indicates that LTS Fyfe suggested that

the lesson plan goal was “based on student feedback that he was teaching without a lesson plan.”

Email from Ann Keller-Lally (Nov. 9, 2011), EEO Investigation Report at 93, ECF No. 36-3.

Throughout the rest of 2011, LTS Fyfe and Dr. Coulibaly continued to experience

friction, though LTS Fyfe felt that their issues merely arose because “she [was] telling

[Dr. Coulibaly] things that he [didn’t] want to hear.” Id. LTS Fyfe reports that in advance of a

planned observation of Dr. Coulibaly’s class the following month, she requested class readings

from Dr. Coulibaly. Email from Laura Fyfe (Nov. 7, 2011), EEO Investigation Report at 721

12
(noting LTS Fyfe’s message to Dr. Coulibaly on August 12, 2011). According to LTS Fyfe,

Dr. Coulibaly responded by stating that he felt that his students were not yet ready to read. See

id. (“He replied that his students were only in week 6, so he was not doing reading with them.”).

LTS Fyfe later opined that the reading delay was “out of the ordinary” in the French section,

where she stated that “teachers begin teaching reading starting in the first week with A level texts

varying from advertisements to menus.” Id.

According to LTS Fyfe, she observed Dr. Coulibaly’s class, as planned, on August 18,

2011. Id. She followed up with Dr. Coulibaly by email later that day and the next day. Id. at

721–22.7 In her August 19, 2011 email, LTS Fyfe told Dr. Coulibaly to “prepare a reading

lesson” for his class based on “the four P’s” method. See Email from Laura Fyfe to Tiemoko

Coulibaly (Aug. 19, 2011), EEO Investigation Report at 733, Coulibaly v. Kerry, No. 14-0712

(D.D.C. Mar. 4, 2016), ECF No. 26-7.

Five days later, on August 24, 2011, Dr. Coulibaly submitted his reading lesson plan to

LTS Fyfe.8 LTS Fyfe later characterized Dr. Coulibaly’s lesson plan as “a template for writing a

lesson plan—not an actual lesson plan.” Email from Laura Fyfe (Nov. 7, 2011), EEO

Investigation Report at 722. LTS Fyfe states that she told Dr. Coulibaly during the following

week that the plan was “a beginning” and then asked Dr. Coulibaly to make improvements—

namely, to include a specific article for reading and to “address some of the specifics of the

7
See Email from Laura Fyfe to Tiemoko Coulibaly (Aug. 18, 2011), EEO Investigation
Report at 734, Coulibaly v. Kerry, No. 14-0712 (D.D.C. Mar. 4, 2016), ECF No. 26-7; Email
from Laura Fyfe to Tiemoko Coulibaly (Aug. 19, 2011), EEO Investigation Report at 733,
Coulibaly v. Kerry, No. 14-0712 (D.D.C. Mar. 4, 2016), ECF No. 26-7.
8
See Email from Tiemoko Coulibaly to Laura Fyfe (Aug. 24, 2011), EEO Investigation
Report at 732–33, Coulibaly v. Kerry, No. 14-0712 (D.D.C. Mar. 4, 2016), ECF No. 26-7; see
also Email from Laura Fyfe (Nov. 7, 2011), EEO Investigation Report at 722 (reproducing what
LTS Fyfe alleges was the document that Dr. Coulibaly sent her).

13
article and the timing and level of the lesson.” See id. at 721–23 (reproducing an email from

August 30, 2011). According to LTS Fyfe, Dr. Coulibaly responded later that day and requested

clarification about whether his lesson plan was satisfactory. See id. at 723 (“I would be grateful

if you could tell me if this ‘beginning’ is appropriate or not for you, if it is good or not, so I could

try to improve it.”). LTS Fyfe claims that she responded to Dr. Coulibaly’s request by giving

him “specific questions.” See id.

LTS Fyfe states that she again requested a reading lesson plan more than a month later,

on October 3, 2011. Id. Two days later, Dr. Coulibaly responded by forwarding LTS Fyfe the

lesson plan that he had previously sent her in August. See Email from Tiemoko Coulibaly to

Laura Fyfe (Oct. 5, 2011, 8:55 AM), EEO Investigation Report at 732–33, Coulibaly v. Kerry,

No. 14-0712 (D.D.C. Mar. 4, 2016), ECF No. 26-7. LTS Fyfe then clarified that she found the

August lesson plan to be unsatisfactory. See Email from Laura Fyfe to Tiemoko Coulibaly (Oct.

5, 2011), EEO Investigation Report at 732, Coulibaly v. Kerry, No. 14-0712 (D.D.C. Mar. 4,

2016), ECF No. 26-7 (“[W]hen I wrote, ‘this is a beginning,’ I was suggesting that [the August

lesson plan was] not complete and [that] it needed to be revised.” (emphasis in original)). In

response, Dr. Coulibaly expressed that he was “confused and unclear about what to do exactly”

and stated that he “would appreciate” a time to meet with LTS Fyfe for clarification. See Email

from Tiemoko Coulibaly to Laura Fyfe (Oct. 5, 2011, 12:36 PM), EEO Investigation Report at

731–32, Coulibaly v. Kerry, No. 14-0712 (D.D.C. Mar. 4, 2016), ECF No. 26-7.

LTS Fyfe states that she attempted to meet with Dr. Coulibaly on October 12, 2011, but

that she “made a mistake about his teaching schedule,” so no meeting occurred. See Email from

Laura Fyfe (Nov. 7, 2011), EEO Investigation Report at 724. LTS Fyfe asserts that, instead, she

delegated the matter to another FSI employee, Dora Chanesman. See id.; Email from Laura Fyfe

14
to Tiemoko Coulibaly (Nov. 4, 2011), EEO Investigation Report at 731, Coulibaly v. Kerry,

No. 14-0712 (D.D.C. Mar. 4, 2016), ECF No. 26-7.

The next month, on November 4, 2011, LTS Fyfe contacted Dr. Coulibaly again about

the reading lesson plan and wrote that “[s]ince [she and Dr. Coulibaly had] not been able to set

up a time to go over writing a lesson plan, [she had] asked Dora Chanesman [to] assist [him]

with the process.” Email from Laura Fyfe to Tiemoko Coulibaly (Nov. 4, 2011, 9:57 AM), EEO

Investigation Report at 731. Dr. Coulibaly responded later that day with his interpretation of

LTS Fyfe’s message: “This suggests in my mind that I have refused or I have rejected to ‘set up

a time to go over writing a lesson plan.’” Email from Tiemoko Coulibaly to Laura Fyfe (Nov. 4,

2011, 7:11 PM), EEO Investigation Report at 728, Coulibaly v. Kerry, No. 14-0712 (D.D.C.

Mar. 4, 2016), ECF No. 26-7. Disputing the idea that he was at fault for their inability to meet,

Dr. Coulibaly emphasized that he had “never refused to meet with [LTS Fyfe] and [that he had]

never refused to do what [she] requested.” Id.

Communications with Second-Line Supervisors

A few days later, on November 7, 2011, Dr. Coulibaly wrote to Acting Division Director

Ann Keller-Lally and expressed that he was “feeling hostility” from LTS Fyfe, that he believed

he was “a victim of psychological abuse, retaliation and discrimination,” and that “this is a case

of intentional and negligent infliction of emotional distress to an employee.” Email from

Tiemoko Coulibaly to Ann Keller-Lally (Nov. 7, 2011), EEO Investigation Report at 727,

Coulibaly v. Kerry, No. 14-0712 (D.D.C. Mar. 4, 2016), ECF No. 26-7. In response, Acting

Director Keller-Lally provided Dr. Coulibaly with the procedures to report alleged

discrimination, but she also suggested a face-to-face meeting with Dr. Coulibaly and with

LTS Fyfe to discuss the conflict. Email from Ann Keller-Lally to Tiemoko Coulibaly (Nov. 7,

15
2011, 5:01 PM), EEO Investigation Report at 725–26, Coulibaly v. Kerry, No. 14-0712 (D.D.C.

Mar. 4, 2016), ECF No. 26-7.

That meeting occurred the next day, on November 8, 2011. See Email from Ann

Keller-Lally (Nov. 9, 2011), EEO Investigation Report at 754–56, ECF No. 36-3 (memorializing

the conversation from the meeting in writing). During the meeting, Acting Director

Keller-Lally’s notes indicate that she met with both LTS Fyfe and Dr. Coulibaly, that

Dr. Coulibaly expressed his confusion with respect to LTS Fyfe’s instructions, and that LTS Fyfe

felt that her instructions were clear. See id. at 754–55. In particular, Acting Director

Keller-Lally’s notes indicate that Dr. Coulibaly found LTS Fyfe’s “four P’s” method confusing,

because another colleague had told Dr. Coulibaly that the method “was not particularly

applicable with regard to reading lessons.” Id. at 754. According to Acting Director

Keller-Lally’s notes, LTS Fyfe acknowledged “[l]ater in the meeting” that Dr. Coulibaly was

“rightly confused.” Id. Apart from the “four P’s” method, Dr. Coulibaly also reportedly

expressed that he felt “hostility” from LTS Fyfe, and that “he was sure whatever he proposed

would be rejected.” Id. at 754–55. In response, LTS Fyfe reportedly stated that her goal was to

help Dr. Coulibaly to “do the best he could” and felt that she had simply “said some things that

[Dr. Coulibaly] did not want to hear.” Id. at 756. According to Acting Director Kellar-Lally’s

notes, LTS Fyfe ultimately “offered to drop the reading lesson plan project,” and instead

requested that Dr. Coulibaly attend formal trainings. Id. at 755–56.

The next day, Acting Director Keller-Lally sent her notes documenting the meeting to

LTS Fyfe and Dr. Coulibaly. See generally id. at 754–56. She told LTS Fyfe and Dr. Coulibaly

to “[p]lease feel free to respond with any remarks or corrections based on [their] recollection of

what we discussed.” Id. at 754. The following week, on November 15, 2011, Dr. Coulibaly

16
provided voluminous comments in response to Acting Director Keller-Lally’s notes. See Email

from Tiemoko Coulibaly (Nov. 15, 2011), EEO Investigation Report at 743–49, ECF No. 36-3.

Dr. Coulibaly’s response alleged that, during the meeting, LTS Fyfe had accused him of

“‘discrimination’ ‘against’ her because of her ‘background’ and because her ‘former husband’

was ‘Ivorian’ (like [Dr. Coulibaly]).” Id. at 744; see also id. at 748 (alluding to a point during

the meeting in which LTS Fyfe “became very emotional and . . . started crying,” and in which

she mentioned the Ivory Coast “and her former husband, an [Ivorian]”). His response also

accused LTS Fyfe of “knowingly and intentionally act[ing] . . . in bad faith to create false

excuses to . . . punish [Dr. Coulibaly],” of “retaliation,” and of “character assassination.” Id. at

745–46. Reacting to Dr. Coulibaly’s comments, LTS Fyfe asserted that there was “no basis for

his [accusations],” though she admitted that she “was brought to tears” and “did ask

[Dr. Coulibaly] if he had an ax to grind against [her] because of [her] ex.” Email from Laura

Fyfe to Debra Blake (Nov. 15, 2011), EEO Investigation Report at 743, ECF No. 36-3.

The record indicates that, meanwhile, on November 9, 2011, Dr. Coulibaly had requested

a change in supervisor. See Blake Aff. ¶ Q15, Defs.’ Facts Ex. D, ECF No. 30-4 (“On 11/9/11

[Dr. Coulibaly] first made a request for a new [s]upervisor.”). FSI management appears to have

decided to delay any change of supervisor because only two months remained in the reporting

period; and, a change would have left any new supervisor without adequate observation time

before year-end performance ratings. See id.; Keller-Lally Aff. ¶ Q15, Defs.’ Facts Ex. KK, ECF

No. 30-37.

On November 16, 2011, the day after Dr. Coulibaly and LTS Fyfe responded to Acting

Director Keller-Lally’s notes, Division Director Debra Blake, having returned to the office, met

with Dr. Coulibaly to address his accusations. See Blake Mem. (Nov. 15, 2011), EEO

17
Investigation Report at 773–74, ECF No. 36-4.9 In her notes documenting this conversation,

Director Blake claimed that her purpose in calling the meeting was to determine “precisely what

actions” Dr. Coulibaly felt were evidence of LTS Fyfe’s “discrimination and hostility.” Id. at

773. According to Director Blake, Dr. Coulibaly was initially “reluctant” to articulate specific

allegations of discrimination and hostility, but he then cited the fact that LTS Fyfe’s “former

husband shared the same country of origin” as Dr. Coulibaly, as well as allegations that

LTS Fyfe treated Dr. Coulibaly unfairly in the way that she supervised him. See id. Director

Blake shared her notes of the meeting with Dr. Coulibaly the next week. See Email from Debra

Blake to Tiemoko Coulibaly (Nov. 22, 2011), EEO Investigation Report at 764–65, ECF No. 36-

3.

The day after Dr. Coulibaly received Director Blake’s notes, Dr. Coulibaly responded

with lengthy comments that expressed his views on the conversation. See Email from Tiemoko

Coulibaly (Nov. 23, 2011), EEO Investigation Report at 764, ECF No. 36-3; Coulibaly Mem.

(Nov. 23, 2011), EEO Investigation Report at 766–72, ECF No. 36-4. In his comments,

Dr. Coulibaly repeatedly expressed that he believed that Director Blake was “simply trying to

protect” LTS Fyfe: he wrote that Director Blake “had already decided to totally support”

LTS Fyfe and had become “a zealous lawyer” for LTS Fyfe during the meeting. See Coulibaly

Mem. (Nov. 23, 2011), EEO Investigation Report at 766–72.

9
Director Blake actually dated her memorandum November 15, 2011, see Blake Mem.
(Nov. 15, 2011), EEO Investigation Report at 773–74, but, as Dr. Coulibaly noted in his
response to Director Blake’s memorandum, the meeting in fact took place on November 16,
2011, see Coulibaly Mem. (Nov. 23, 2011), EEO Investigation Report at 766, ECF No. 36-4.
See also Email from Debra Blake to Laura Fyfe (Nov. 16, 2011), EEO Investigation Report at
757, ECF No. 36-3 (stating that Director Blake intended to meet with Dr. Coulibaly that day).

18
That same day, Director Blake met with both Dr. Coulibaly and LTS Fyfe to facilitate

their working relationship going forwarded. See Email from Laura Fyfe (Nov. 23, 2011,

3:12 PM), EEO Investigation Report at 761–62, ECF No. 36-3 (memorializing the meeting). At

the meeting, LTS Fyfe reports that she told Dr. Coulibaly that “the administration ha[d] ruled”

that she would continue as Dr. Coulibaly’s supervisor, even though he had requested a change in

supervisor. Id. at 762. LTS Fyfe states that she also expressed “her willingness to move forward

in the supervisory role” and that she and Dr. Coulibaly “both agreed to work productively with

each other.” Id. Dr. Coulibaly later emailed LTS Fyfe to clarify the procedure for changing

supervisors. See Email from Tiemoko Coulibaly (Nov. 23, 2011, 4:35 PM), EEO Investigation

Report at 761, ECF No. 36-4. LTS Fyfe responded by informing Dr. Coulibaly that “[t]he

decision was made to keep [her] as [his] supervisor until at least the end of this year (December

31, 2011)” and that she had “not received approval to change [his] supervisor . . . after that

point.” Email from Laura Fyfe (Nov. 23, 2011, 5:33 PM), EEO Investigation Report at 761,

ECF No. 36-3.

A few weeks later, on December 14, 2011, Director Blake and LTS Fyfe met again with

Dr. Coulibaly to address a new point of contention: his alleged failure to submit required weekly

syllabi for a period of three weeks.10 According to Director Blake, Dr. Coulibaly acknowledged

that he had not submitted the weekly syllabi, but claimed that he had been too busy. Blake Mem.

(Dec. 14, 2011), EEO Investigation Report at 787, ECF No. 36-4. Director Blake further reports

that Dr. Coulibaly continued to allege that “he felt discriminated against and felt he was being

treated unfairly,” particularly when compared to “one other instructor who entered on duty on

10
See Email from Debra Blake (Dec. 15, 2011), EEO Investigation Report at 786, ECF
No. 36-4 (noting the meeting that took place the day before); Blake Mem. (Dec. 14, 2011), EEO
Investigation Report at 787, ECF No. 36-4.

19
the same date.” Id. Dr. Coulibaly commented the next day that, at their meeting, he had “clearly

insisted on the issue of discrimination” and that he had noted “the different standards between

teacher Hmimiche AitMouloud (‘Mimiche’)” and himself. Email from Tiemoko Coulibaly (Dec.

15, 2011), EEO Investigation Report at 785–86, ECF No. 36-4. Dr. Coulibaly also states that he

had questioned whether Mr. Hmimiche had been held to the syllabus requirement. Id.

EEO Complaint

Around the time that he was communicating with Director Blake, Dr. Coulibaly made

contact with the Department of State’s Office of Civil Rights and filed an informal Equal

Employment Opportunity (“EEO”) complaint.11 Dr. Coulibaly filed a formal EEO complaint on

December 20, 2011. See Compl. ¶ 95; Formal Compl. of Discrimination, EEO Investigation

Report at 62–63, ECF No. 36-3. The complaint alleged that FSI management had discriminated

against Dr. Coulibaly on the basis of race, color, and national origin and had committed

“reprisal” against him. See Formal Compl. of Discrimination, EEO Investigation Report at

62–64, ECF No. 36-3. The complaint brought up issues relating both to Dr. Coulibaly’s recent

conflicts with his supervisors and to Dr. Coulibaly’s allegations relating to events in 2009. See

id. at 64; see also supra Part II.A.4–5 (discussing events Dr. Coulibaly alleges occurred in 2009).

The Office of Civil Rights filed Dr. Coulibaly’s complaint under EEO Case Number

DOS-F-025-12. See Letter from Jacqueline Canton to Tiemoko Coulibaly, EEO Investigation

Report at 58, ECF No. 36-3.

11
See Compl. ¶ 95 (stating that Dr. Coulibaly filed an informal EEO complaint on
November 23, 2011); EEO Counselor’s Report, EEO Investigation Report at 68–73, ECF
No. 36-3 (showing that Dr. Coulibaly made contact with an EEO Counselor at the Department of
State on November 18, 2011); Email from Debra Blake (Nov. 28, 2011), EEO Investigation
Report at 776, ECF No. 36-4 (discussing “the EEO complaint filed by Tiemoko Coulibaly last
week”).

20
Performance Appraisal Report

Later in December 2011, Dr. Coulibaly received a Performance Appraisal Report

(“PAR”) from LTS Fyfe that noted “several issues” with Dr. Coulibaly’s performance.12

LTS Fyfe noted that Dr. Coulibaly was “continu[ing] to attempt to repair” his performance with

respect to those issues. PAR Report by Laura Fyfe, EEO Investigation Report at 790, ECF

No. 36-4.

In response, Dr. Coulibaly sent an email to Director Blake, LTS Fyfe, and others in FSI

management, in which he alleged that the PAR was “evidence of retaliation” and that Director

Blake and LTS Fyfe could not “separate performance evaluation from discrimination and

retaliation against” Dr. Coulibaly. Email from Tiemoko Coulibaly (Dec. 27, 2011), EEO

Investigation Report at 788–89, ECF No. 36-4. Dr. Coulibaly’s email accused his supervisors of

omitting “the important issues of discrimination and retaliation” in the PAR, given that,

according to Dr. Coulibaly, “these disputes clearly influenced [their] performance report.” Id. at

789.

Director Blake responded by telling Dr. Coulibaly that he should pursue his

discrimination allegations “through the proper channels” and that LTS Fyfe, as his supervisor,

“reported on [his] performance as required.” Email from Debra Blake to Tiemoko Coulibaly

(Dec. 28, 2011), EEO Investigation Report at 795–96, ECF No. 36-4. She also stated that

Dr. Coulibaly had “been repeatedly instructed to refrain from this line of accusations” while

discussing his work performance. Id. She opined that, therefore, his continued accusations were

“tantamount to insubordination.” Id. Continuing his disagreement with Director Blake,

12
See Email from Tiemoko Coulibaly (Dec. 27, 2011), EEO Investigation Report at
788–89, ECF No. 36-4; see also PAR Report by Laura Fyfe, EEO Investigation Report at 790,
ECF No. 36-4 (discussing Dr. Coulibaly’s lesson plans and weekly syllabi).

21
Dr. Coulibaly responded by stating that “[t]here is no insubordination when a teacher denounces

discrimination and retaliation,” and he reiterated that the PAR “was simply discrimination and

retaliation.” Email from Tiemoko Coulibaly to Debra Blake (Dec. 28, 2011, 4:09 PM), EEO

Investigation Report at 795, ECF No. 36-4. In this vein, Dr. Coulibaly alleged that Director

Blake and LTS Fyfe viewed Dr. Coulibaly as “their target” and did not require other teachers—

such as Mr. Hmimiche—to submit syllabi in order to fulfill job responsibilities. Email from

Timoko Coulibaly to Debra Blake (Dec. 28, 2011, 3:55 PM), EEO Investigation Report at

96–97, ECF No. 36-3 (emphasis omitted).

Event for FSI’s French Language and Culture Instructors

The next day, on December 29, 2011, Dr. Coulibaly attended an event for FSI’s French

Language and Culture instructors. See Casteuble Mem. (Jan. 24, 2012), EEO Investigation

Report at 815, ECF No. 36-4; see also Cazeau Aff., EEO Investigation Report at 1339–40,

Coulibaly v. Kerry, No. 14-0712 (D.D.C. Mar. 4, 2016), ECF No. 26-12. Evidence in the record

shows different views regarding the purpose of the meeting and the nature of Dr. Coulibaly’s

actions during the meeting.

Defendants adopt the position taken in a memorandum written by LTS Phillipe

Casteuble, who stated that the meeting was a “training workshop provided to all French

Language and Culture Instructors” about “specifications for writing the weekly syllabi.”

Casteuble Mem. (Jan. 24, 2012), EEO Investigation Report at 815; see also Defs.’ Facts

¶¶ 17–21 (adopting LTS Casteuble’s view). LTS Casteuble’s memorandum also accuses

Dr. Coulibaly of “inappropriate conduct” and comments that “were off topic” during the

meeting: Dr. Coulibaly allegedly “stood up and loudly began to speak about the ‘No Fear Act’

and discrimination and retaliation against [him] on the part of the French Supervisors,” and he

22
allegedly “continued to stand up and loudly protest” despite LTS Casteuble’s request for

Dr. Coulibaly to sit down. Casteuble Mem. (Jan. 24, 2012), EEO Investigation Report at 815.

But Dr. Coulibaly’s colleague, Elder Cazeau, took a different view of the meeting.

Mr. Cazeau recalls that the meeting was merely a “section meeting that had been organized to

discuss lesson plans.” Cazeau Aff., EEO Investigation Report at 1339. Mr. Cazeau also

recounts that Dr. Coulibaly “was publicly humiliated and silenced by his supervisor who told

him that he could not use the meeting as a platform to air his personal issues.” Id. at 1339–40.

In particular, Mr. Cazeau states that “Dr. Coulibaly started saying that he felt discriminated

against because of his lesson plan,” that Dr. Coulibaly’s supervisor “cut him off,” and that

“Dr. Coulibaly remained silent” after that. Id. at 1440.

Conflict with New Supervisor Philippe Casteuble

In January 2012, LTS Casteuble replaced LTS Fyfe as Dr. Coulibaly’s supervisor. See

Email from Tiemoko Coulibaly (Jan. 27, 2012), EEO Investigation Report at 813–14, ECF

No. 36-4 (indicating that LTS Casteuble’s first day as Dr. Coulibaly’s new supervisor was on

January 24, 2012); Casteuble Aff. ¶ Q3, Defs.’ Facts Ex. J, ECF No. 30-10 (indicating that

Dr. Coulibaly started reporting to LTS Casteuble in January 2012). On January 24, 2012,

LTS Casteuble met with Dr. Coulibaly with the expressed intention of “talk[ing] about

expectations.” See Email from Philippe Casteuble to Tiemoko Coulibaly (Jan. 23, 2012), EEO

Investigation Report at 814, ECF No. 36-4.13 But, during the meeting, LTS Casteuble presented

Dr. Coulibaly with a memorandum that outlined an “informal counseling session” regarding

Dr. Coulibaly’s conduct at the December 29, 2011 meeting and that reprimanded him for his

13
See Email from Tiemoko Coulibaly (Jan. 27, 2012), EEO Investigation Report at
813–14 (indicating that their meeting occurred on January 24, 2012).

23
conduct at that meeting.14 LTS Casteuble’s memorandum surprised Dr. Coulibaly, who had

believed that the January 24 meeting “was only about expectations on teaching.” Email from

Tiemoko Coulibaly (Jan. 27, 2012), EEO Investigation Report at 813–14. Dr. Coulibaly was

further surprised by the fact that a human resources representative was present for the meeting.15

That same day, LTS Casteuble emailed Dr. Coulibaly and thanked him for submitting his

weekly syllabus. See Email from Philippe Casteuble to Tiemoko Coulibaly (Jan. 24, 2012), EEO

Investigation Report at 829–30, ECF No. 36-4. In his email, LTS Casteuble also asked

Dr. Coulibaly a list of questions regarding the syllabus. See id. (asking, among other things,

whether “there is a theme” that Dr. Coulibaly planned to explore, and how an activity would help

Dr. Coulibaly’s students “reach the professional proficiency level”).

Some time later, LTS Casteuble again brought up the issue of Dr. Coulibaly’s weekly

syllabus. On February 2, 2012, LTS Casteuble emailed Dr. Coulibaly and said that, after looking

at Dr. Coulibaly’s weekly syllabus, he needed “to talk about it” with Dr. Coulibaly. Email from

Philippe Casteuble to Tiemoko Coulibaly (Feb. 2, 2012), EEO Investigation Report at 820, ECF

No. 36-4. LTS Casteuble suggested a meeting early the next morning. See id. Because

Dr. Coulibaly “was very surprised by what happened in [LTS Casteuble’s] office at the meeting

of January 24, 2012,” Dr. Coulibaly asked to schedule the proposed meeting to later in the day so

that he could arrange for a union representative to be present. Email from Tiemoko Coulibaly

14
See Email from Tiemoko Coulibaly (Jan. 27, 2012), EEO Investigation Report at 813
(“I was surprised when Philippe gave me his letter . . . reprimanding me for an incident of
December 29, 2011.”); see also Casteuble Mem. (Jan. 24, 2012), EEO Investigation Report at
815, ECF No. 36-4 (reproducing LTS Casteuble’s memorandum).
15
See Email from Tiemoko Coulibaly (Jan. 27, 2012), EEO Investigation Report at 813
(indicating Dr. Coulibaly’s surprise at Phuong Nguyen’s presence); see also Email from Phuong
Nguyen to James North (Feb. 3, 2012), EEO Investigation Report at 821, ECF No. 36-4
(indicating that Phuong Nyugen was a “Supervisory HR Specialist” at FSI).

24
(Feb. 2, 2012), EEO Investigation Report at 819, ECF No. 36-4. After confirming with his own

superiors that it was appropriate for a union representative to attend the meeting, LTS Casteuble

proposed a meeting on February 6, 2012 and informed Dr. Coulibaly that a union representative

could attend.16 But the February 6, 2012 meeting ultimately did not occur: even though

Dr. Coulibaly emailed LTS Casteuble to confirm the meeting time on February 6, LTS Casteuble

claimed that, based on prior communications, he “could not know if the date and time was

accepted, by [Dr. Coulibaly] and by the union representative.”17

That same day, LTS Casteuble also wrote Dr. Coulibaly a separate email that reminded

Dr. Coulibaly about LTS Casteuble’s January 24, 2012 questions about Dr. Coulibaly’s weekly

syllabus. See Email from Philippe Casteuble to Tiemoko Coulibaly (Feb. 6, 2012, 8:29 AM),

EEO Investigation Report at 829, ECF No. 36-4 (“This is a friendly reminder that as of today I

have not received any response on the 14 questions I asked . . . .”). In response, Dr. Coulibaly

asserted that he had responded to LTS Casteuble’s questions by requesting a meeting with him,

and that LTS Casteuble “never responded” to Dr. Coulibaly’s request. See Email from Tiemoko

Coulibaly (Feb. 6, 2012, 9:19 AM), EEO Investigation Report at 827–28, ECF No. 36-4 (“[A]

meeting would be more appropriate to answer your ‘14 questions.’”). Dr. Coulibaly also sent a

separate email to LTS Casteuble, in which he noted that all of his students had passed their

16
See Email from Philippe Casteuble to Tiemoko Coulibaly (Feb. 3, 2012, 12:13 PM),
EEO Investigation Report at 833, ECF No. 36-4; Email from Phillipe Casteuble to Tiemoko
Coulibaly (Feb. 3, 2012, 1:26 PM), EEO Investigation Report at 832, ECF No. 36-4.
17
See Email from Tiemoko Coulibaly to Philippe Casteuble (Feb. 6, 2012, 8:32 AM),
EEO Investigation Report at 832, ECF No. 36-4 (writing to confirm the 9:00 AM meeting on
February 6, 2012); Email from Philippe Casteuble to Tiemoko Coulibaly (Feb. 6, 2012,
8:51 AM), EEO Investigation Report at 831, ECF No. 36-4 (opining that LTS Casteuble did not
know whether the 9:00 AM time was acceptable); Email from Tiemoko Coulibaly to Philippe
Casteuble (Feb. 6, 2012, 9:08 AM), EEO Investigation Report at 831, ECF No. 36-4 (indicating
that the 9:00 AM meeting did not occur).

25
recent tests, forwarded complimentary remarks from one of his students, and opined that

“[n]othing [was] wrong with [his] syllabus.” See Email from Tiemoko Coulibaly (Feb. 6, 2012,

9:34 AM), EEO Investigation Report at 839–41, ECF No. 36-4. In light of his students’ success,

Dr. Coulibaly characterized the criticisms of his syllabi as harassment. See id. (“Instead of

congratulating me, you are constantly harassing me with [the] Syllabus issue as Debra and Laura

Fyfe did [for] the last 6 months.”).

But despite Dr. Coulibaly’s communications with LTS Casteuble, Dr. Coulibaly received

another counseling memorandum on February 10, 2012, which again criticized Dr. Coulibaly’s

syllabi. See Casteuble Mem. (Feb. 10, 2012), Defs.’ Facts Ex. P, ECF No. 30-16 (reproducing

the memorandum). Perhaps because of the counseling memorandum, Dr. Coulibaly provided his

answers to LTS Casteuble’s January 24, 2012 questions that day. See Email from Tiemoko

Coulibaly (Feb. 10, 2012), EEO Investigation Report at 902–04, ECF No. 36-4. Dr. Coulibaly

also requested a sample satisfactory syllabus. See id. at 904 (“I would appreciate if you could

provide an example of a perfect syllabus you like so I can follow it line by line.”). Although

LTS Casteuble expressed privately to Director Blake and LTS Fyfe that he found Dr. Coulibaly’s

answers unsatisfactory, he later provided Dr. Coulibaly with additional feedback and a sample

syllabus to reference.18

Absence from Work

Dr. Coulibaly alleges that the discrimination at work caused him to become ill and that, at

the direction of his doctor, he took leave. See Compl. ¶ 175; Letter from Willie Hamlin to

18
See Email from Philippe Casteuble (Feb. 13, 2012, 8:13 AM), EEO Investigation
Report at 895, ECF No. 36-4 (“I see a laundry list of activities but I still don’t see how they
reinforce each other or how they are linked with his teaching objectives.”); Email from Philippe
Casteuble to Tiemoko Coulibaly (Feb. 13, 2012, 2:57 PM), EEO Investigation Report at 901,
ECF No. 36-4 (providing Dr. Coulibaly with feedback and a sample syllabus).

26
Catherine Russell at 2, Pl.’s Resp. Ex., at 146, ECF No. 36-2 (“It is recommended that

[Dr.] Coulibaly not return to work prior to March 26, 2012.”).19 FSI human resources documents

reflect that, beginning on Monday February 15, 2012 and until Friday March 23, 2012,

Dr. Coulibaly took a combination of sick leave, annual leave, and leave without pay for six

weeks. See Defs.’ Facts. Ex. Q, at 1315, 1317, ECF No. 30-17.

Termination

On April 2, 2012, FSI terminated Dr. Coulibaly’s employment, effective April 6, 2012,

because of his “inappropriate interactions with [his] supervisors, and [his] failure to follow

established procedures for requesting leave.” Letter from Catherine Russell to Tiemoko

Coulibaly (Apr. 2, 2012), Pl.’s Resp. Ex. 6, at 25, ECF No. 36-2.

C. Subsequent Procedural History

After Dr. Coulibaly’s termination, the Department of State’s Office of Civil Rights

continued to process Dr. Coulibaly’s discrimination allegations filed under EEO Case Number

DOS-F-025-12. See Defs.’ Facts Ex. II, ECF No. 30-35 (reproducing letters from the Office to

Dr. Coulibaly about his claims). The Office of Civil Rights allowed Dr. Coulibaly to amend his

claims to include allegations of wrongdoing relating to his leave requests and to his termination.

See id. at 8–13. But the Office of Civil Rights dismissed Dr. Coulibaly’s discrimination

allegations relating to 2009 events as untimely filed. See id. at 6–7.

Dr. Coulibaly also brought other claims before the Department of State and other

agencies—mostly claims that sought to bring to light additional wrongdoing that Dr. Coulibaly

felt occurred in the handling of his discrimination allegations. Thus, for instance, on August 20,

19
Because the initial exhibits appended to Dr. Coulibaly’s opposition brief are not
consecutively paginated, the Court also includes the page number automatically generated by
ECF.

27
2013—after Dr. Coulibaly’s case had apparently escalated to the Merit Systems Protection Board

(“MSPB”)—the Department of State’s Office of Civil Rights dismissed Dr. Coulibaly’s separate

discrimination claim filed under EEO Case Number DOS-F-119-13. See Defs.’ Facts Ex. V,

ECF No. 30-22 (reproducing the Office’s dismissal letter). That claim had alleged

discrimination based on the fact that the Department had provided the MSPB with the position

description for Dr. Coulibaly that was dated June 15, 2007. See id. at 1; see also supra Part

II.A.3 (discussing that 2007 position description, and the competing views about its origin and

purpose). The Department held that Dr. Coulibaly should have filed this claim with the MSPB

itself, and accordingly dismissed it. See Defs.’ Facts Ex. V at 1.

In 2014, Dr. Coulibaly brought additional discrimination allegations against the

Department of State, which the Department’s Office of Civil Rights filed under EEO Case

Number DOS-0207-14. See Defs.’ Facts Ex. W ¶¶ 24, 39, ECF No. 30-23 (discussing

Dr. Coulibaly’s allegations in the EEO Counselor’s Report); Defs.’ Facts Ex. X, ECF No. 30-24

(discussing the allegations in a letter filed under EEO Case Number DOS-0207-14). This time,

Dr. Coulibaly claimed that the Department conspired with the MSPB to dismiss whistleblower

claims that he had brought before the MSPB. See Defs.’ Facts Ex. W, ¶ 39. The Office of Civil

Rights dismissed this claim on June 24, 2014, and held that Dr. Coulibaly should have also

lodged this claim with the MSPB itself, instead of the Department. See Defs.’ Facts Ex. X

(reproducing the dismissal letter).

Lastly, on October 13, 2015, the Department of State dismissed yet another set of

Dr. Coulibaly’s discrimination claims, filed under EEO Case Number DOS-0232-15. See Pl.’s

28
Resp. Ex., at 56–60, ECF No. 36-2 (reproducing the dismissal letter). 20 In those claims,

Dr. Coulibaly had alleged that the Department had failed to provide him with a reasonable

accommodation for his supervisor and had improperly handled the processing of his medical

documentation. See id. at 56, ECF No. 36-2. The Department dismissed the claim because it

held that he had not timely brought his claim to an EEO counselor and because his claim failed

to “allege present harm to a term, condition, or privilege of employment inflicted on the basis of

[a protected class].” Id. at 56–58, ECF No. 36-2.

Apart from discrimination allegations raised before the Department of State,

Dr. Coulibaly also began filing claims under the Federal Tort Claims Act (“FTCA”) in 2014. In

that year, Dr. Coulibaly filed five FTCA claims against the Department of State, seeking

damages in the amounts of $10,000,000; $50,000,000; $50,000,000; $55,000,000; and

$60,000,000. See Defs.’ Facts Ex. C, at 5–8, ECF No. 30-25;21 id. Ex. CC, ECF No. 30-29. He

filed three FTCA claims against members of the MSPB, seeking damages in the amounts of

$5,000,000; $55,000,000; and $60,000,000. See id. Ex. C, at 2–3; id. Ex. EE, ECF No. 30-31.

And Dr. Coulibaly filed two FTCA claims against the EEOC, seeking damages in the amounts of

$25,000,000 and $50,000,000. Id. Ex. C, at 4; id. Ex. DD, ECF No. 30-30.

As further background for the case before the Court now, Dr. Coulibaly notes that in

March 2013, the Office of the Inspector General at the Department of State (OIG) conducted an

investigation of the French section within FSI. Compl. ¶ 82. The OIG determined that FSI had

“a significant number of Equal Employment Opportunity . . . and harassment-related

20
Because the initial exhibits appended to Dr. Coulibaly’s opposition brief are not
consecutively paginated, the Court also includes the page number automatically generated by
ECF.
21
Because the various FTCA claims compiled in Defendants’ Exhibit C are not
consecutively paginated, the Court cites to the ECF numbers automatically generated by ECF.

29
complaints.” Defs.’ Reply Pl.’s Opp’n Defs.’ Mot. Dismiss or Summ. J. (“Defs.’ Reply”) Att. F,

at 7, ECF No. 42-6 (reproducing the relevant excerpt of the report). See generally Office of

Inspector Gen., U.S. Dep’t of State & Broad. Bd. of Governors, Inspection of the Foreign

Service Institute (Mar. 2013), https://oig.state.gov/system/files/209366.pdf (reproducing the

entire report, but with some portions redacted).22

Dr. Coulibaly claims that he first filed the present litigation on November 15, 2013.

Compl. ¶ 162; see also ECF No. 1 (showing that Dr. Coulibaly’s initial complaint was stamped

“Received” in November 2013, but that the stamp was later crossed out). But that the complaint

was not docketed until February 10, 2014. See ECF No. 1 (showing that the initial complaint

was stamped “Filed” on February 10, 2014). In a pre-answer motion, Defendants move to

dismiss the complaint or, in the alternative, for summary judgment. See Defs.’ Mot. Dismiss or,

in the Alt., for Summ. J., ECF No. 30. Combined with his opposition brief, Dr. Coulibaly has

filed a motion for leave to file a fourth amended complaint. See Pl.’s Resp., ECF No. 36.

Dr. Coulibaly also later filed a motion to add newly acquired evidence to the record. See Pl.’s

Mot. Add Newly Acquired Evid., ECF No. 39.

III. ANALYSIS

Before the Court addresses the merits of the parties’ respective motions, the Court

addresses Defendants’ suggestion that the Court strike Dr. Coulibaly’s opposition brief.

22
Dr. Coulibaly requests that this Court require the Department of State to submit the full
report on the record. Compl. ¶ 90. Given that almost all of the report is available in the public
record and given Dr. Coulibaly’s inability to draw any causal link between the report and his
purported claims, the Court sees no reason to force such a disclosure at this time. This issue can
be revisited during discovery on Dr. Coulibaly’s discrimination and retaliation claims.

30
A. Length of Dr. Coulibaly’s Opposition Brief

In their reply brief, Defendants suggest that the Court strike Dr. Coulibaly’s opposition

brief and claim that the extreme length of his submission violates Local Civil Rule 7(e). See

Defs.’ Reply at 1, ECF No. 42. Defendants cite OAO Alfa Bank v. Center for Public Integrity,

387 F. Supp. 2d 20, 39 (D.D.C. 2005), as support for striking the excessive pages. But

Defendants do not mention that the OAO court granted the noncompliant party leave to amend

and, later, reconsidered the amended motion. Id. Further, the parties in OAO were represented

by counsel and, therefore, did not receive the expanded deference afforded to a pro se plaintiff

such as Dr. Coulibaly. See id. at 22–23, 39. Thus, OAO at most stands for the proposition that

the Court should offer Dr. Coulibaly an opportunity to revise and resubmit his opposition brief.

Defendants also cite Corson & Gruman Co. v. NLRB, 899 F.2d 47, 50–51 n.4 (D.C. Cir.

1990), as analogous support. However, that case is also distinguishable because it did not

involve a pro se plaintiff. See id. at 48. Consequently, because Dr. Coulibaly is pro se, the

Court will decline to strike Dr. Coulibaly’s opposition brief but will warn Dr. Coulibaly to

comply with this Court’s rule on briefing length limits in the future. If he does not, the Court

will exercise its authority to strike any future briefs that go over the applicable limits.

B. Tort and Contract Claims

The Court now turns to the merits of Defendants’ motion to dismiss or, in the alternative,

for summary judgment. The Court addresses Defendants’ arguments in a few groups, roughly

divided based on the laws under which Dr. Coulibaly’s claims might reasonably fall. The Court

first addresses Dr. Coulibaly’s tort and contract claims, before turning to his claims under Title

VII of the Civil Rights Act of 1964, the Rehabilitation Act, the First Amendment of the

Constitution, and District of Columbia local statutes.

31
The following counts of the complaint appear to allege tort or contract claims:

(1) Count 7, which alleges intentional and negligent infliction of emotional distress,

see Compl. ¶¶ 108–09;

(2) Count 8, which alleges active concealment of Dr. Coulibaly’s 2007 hiring and

contends that the concealment is evidence of misrepresentation and fraud, see id.

¶¶ 110–11;

(3) Count 9, for promissory fraud, id. ¶¶ 112–13;

(4) Count 10, which appears to allege a breach of an implied covenant of good faith

and fair dealing, see id. ¶¶ 114–15;

(5) Count 11, which alleges promissory estoppel, id. ¶¶ 116–17;

(6) Count 16, which broadly alleges that Dr. Coulibaly timely exhausted his FTCA

claims for infliction of emotional distress, see id. ¶¶ 143–64;

(7) The first of the two counts labeled “Count 19” in Dr. Coulibaly’s complaint,

which alleges defamation and character assassination, id. ¶¶ 184–92; and

(8) Count 21, which alleges conspiracy to commit fraud, extortion, infliction of

emotional distress, and personal injury under the FTCA, see id. ¶¶ 207–08.

Before turning to the merits of these claims, however, the Court reviews the legal standard for

Defendants’ motion to dismiss them.

Legal Standards

Defendants’ arguments about the tort and contract counts rest on jurisdictional grounds,

on Dr. Coulibaly’s failure to state a claim, and on insufficient service of process. The Court

accordingly applies the legal standards for motions to dismiss for lack of subject-matter

jurisdiction under Federal Rule of Civil Procedure 12(b)(1), for insufficient service of process

32
under Federal Rule of Civil Procedure 12(b)(5), and for failure to state a claim under Federal

Rule of Civil Procedure 12(b)(6).23

a. Rule 12(b)(1)

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

outside this limited jurisdiction.” Rasul v. Bush, 542 U.S. 466, 489 (2004) (quoting Kokkonen v.

Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). It is the plaintiff's burden to establish

that the court has subject matter jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561

(1992). To determine 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).

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) (internal quotation marks omitted) (quoting United

States v. Sherwood, 312 U.S. 584, 586 (1941)). “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. Dist. of Columbia, 931 F. Supp. 2d 192, 200 (D.D.C. 2013) (citing FDIC 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.

23
Defendants’ motion also appears to seek dismissal under Federal Rule of Civil
Procedure 8(a). See Mem. Supp. Defs.’ Mot. Dismiss or, in the Alt., for Summ. J. (“Defs.’
Mem.”) 1–2, ECF No. 30. A complaint is subject to dismissal under Rule 8(a) when there is
insufficient notice to allow the defense of the plaintiff’s claims. See Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 514 (2002). Because Defendants do not develop this line of reasoning in
their motion brief, see Defs.’ Mem., the Court will not consider it.

33
Adm’r, EPA, 982 F.2d 531, 532 (D.C. Cir. 1992) (quoting United States v. Mitchell, 445 U.S.

535, 538 (1980)).

Because sovereign immunity is a jurisdictional issue, FDIC v. Meyer, 510 U.S. 471, 475

(1994), Defendants’ arguments invoking sovereign immunity require the Rule 12(b)(1) standard

of review, not the Rule 12(b)(6) standard of review, to govern the Court’s analysis. Therefore,

Dr. Coulibaly has the burden to prove that Congress has waived sovereign immunity for the

claims Plaintiff brings against the United States, the Department of State and any federal

employees, if sued in their official capacity. See Tri-State Hosp. Supply Corp. v. United States,

341 F.3d 571, 575 (D.C. Cir. 2003).

b. Rule 12(b)(5)

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

procedural requirement of service of summons must be satisfied.” Omni Capital Int’l, Ltd. v.

Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987); accord Gorman v. Ameritrade Holding

Corp., 293 F.3d 506, 514 (D.C. Cir. 2002). When the propriety of service is challenged, “[b]y

the plain text of Rule 4, the plaintiff has the burden to ‘demonstrate that the procedure employed

to deliver the papers satisfies the requirement of the relevant portions of Rule 4.’” Mann v.

Castiel, 681 F.3d 368, 372 (D.C. Cir. 2012) (quoting 4A Charles Alan Wright & Arthur R.

Miller, Federal Practice and Procedure § 1083 (3d ed. 2002 & Supp. 2012)).

In cases in which the plaintiff proceeds in forma pauperis, the Court must “order that

service be made by a United States marshal or deputy marshal or by a person specially appointed

by the court.” Fed. R. Civ. P. 4(c)(3). Further, parties proceeding pro se “are allowed more

latitude than litigants represented by counsel to correct defects in service of process and

pleadings.” Moore v. Agency for Int’l Dev., 994 F.2d 874, 876 (D.C. Cir. 1993). This latitude,

34
however, “does not constitute a license for a plaintiff filing pro se to ignore the Federal Rules of

Civil Procedure.” Id. (internal quotation marks omitted) (quoting Jarrell v. Tisch, 656 F. Supp.

237, 239 (D.D.C. 1987)).

c. Rule 12(b)(6)

In considering a motion to dismiss under Rule 12(b)(6), the Court presumes that the

complaint’s factual allegations are true and construes them liberally in the plaintiff’s favor. See,

e.g., United States v. Philip Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2000). A Rule

12(b)(6) motion does not test a plaintiff’s ultimate likelihood of success on the merits; rather, it

tests whether a plaintiff has properly stated a claim. See Scheuer v. Rhodes, 416 U.S. 232, 236

(1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982); Brewer v.

Dist. of Columbia, 891 F. Supp. 2d 126, 130 (D.D.C. 2012).

Nevertheless, “[t]o survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). This means that a plaintiff’s factual allegations “must be enough to raise a right to relief

above the speculative level on the assumption that all the allegations in the complaint are true

(even if doubtful in fact).” Twombly, 550 U.S. at 555–56 (citations and footnote omitted).

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements,” are therefore insufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678.

A court need not accept a plaintiff’s legal conclusions as true, see id., nor must a court presume

the veracity of the legal conclusions that are couched as factual allegations, see Twombly, 550

U.S. at 555.

35
Official Capacity Claims

Defendants in this action are the United States, Secretary Kerry in his official capacity,

and all other defendants in their official and personal capacities. See Compl. ¶¶ 19–23. The

Court first addresses Dr. Coulibaly’s tort and contract claims against the United States and

against the individual defendants in their official capacities, before turning to Dr. Coulibaly’s

claims against individual defendants in their personal capacities.

With respect to the tort and contract claims against the United States and against the

individual defendants in their official capacities, Dr. Coulibaly must establish that a waiver of

sovereign immunity applies. The federal government, its agencies, and federal officials when

sued in their official capacities are shielded from actions for damages unless sovereign immunity

has been waived. See Friends of the Earth v. EPA, 934 F. Supp. 2d 40, 45–46 (D.D.C. 2013)

(citing FDIC v. Meyer, 510 U.S. 471, 475 (1994); Kentucky v. Graham, 473 U.S. 159, 166–67

(1985)).

For tort claims, the relevant waiver of sovereign immunity is the FTCA. See generally

ch. 753, Title IV, 60 Stat. 842 (1946) (codified as amended at 28 U.S.C. §§ 2671–2680). Under

the FTCA, the United States is liable “for money damages . . . for injury or loss of property, or

personal injury or death caused by the negligent or wrongful act or omission” of any federal

employee acting with the scope of his employment. 28 U.S.C. § 1346(b)(1); see id. § 2674

(declaring that “[t]he United States shall be liable” for tort claims as described in § 1346).

But the FTCA does not typically apply to claims arising out of “interference with contract

rights.” Id. § 2680(h). For contract claims, the relevant waiver of sovereign immunity is the

Tucker Act. See ch. 359, 24 Stat. 505 (1887) (codified as amended at 28 U.S.C. § 1491). Under

the Tucker Act, Congress waived sovereign immunity with respect to “any claim against the

36
United States . . . upon any express or implied contract with the United States.” 28 U.S.C.

§ 1491(a)(1).

In analyzing Dr. Coulibaly’s tort claims against the United States and its employees in

their official capacities, the Court uses the FTCA as the relevant framework. In doing so, the

Court addresses Counts 7, 8, 9, 10, 11, 16, and 21 of Dr. Coulibaly’s complaint, as well as the

first of the two counts labeled “Count 19.” The Court then discusses Dr. Coulibaly’s contract

claims against the United States and its employees in their official capacities, using the Tucker

Act as the relevant framework. In doing so, the Court addresses Counts 8, 9, 10, 11, and 21 of

Dr. Coulibaly’s complaint.

a. Tort Claims Under the FTCA

The Court begins its consideration of Dr. Coulibaly’s official-capacity tort claims under

the FTCA by summarizing the governing framework. The FTCA serves as a waiver of sovereign

immunity and makes the federal government liable to the same extent as a private individual for

certain torts of federal employees acting within the scope of their employment. 28 U.S.C.

§§ 1346, 2674; United States v. Orleans, 425 U.S. 807, 813 (1976). Because governing law

“accords federal employees absolute immunity from common-law tort claims arising out of acts

they undertake in the course of their official duties,” Osborn v. Haley, 549 U.S. 225, 229 (2007),

a plaintiff may not bring tort claims against federal officials in their official capacities or against

federal agencies; the proper defendant is the United States itself, see 28 U.S.C. § 1346(a)(2);

Goddard v. D.C. Redevelopment Land Agency, 287 F.2d 343, 345–46 (D.C. Cir. 1961); Welsh v.

Hagler, 83 F. Supp. 3d 212, 223 (D.D.C. 2015).

The FTCA provides the exclusive remedy “[w]here a plaintiff seeks monetary damages

against a federal agency for torts committed by federal employees.” Lempert v. Rice, 956 F.

37
Supp. 2d 17, 28 (D.D.C. 2013) (alteration in original) (quoting Jones v. United States, 949 F.

Supp. 2d 50, 53 (D.D.C. 2013)); see also 28 U.S.C. § 2679(b)(1) (declaring the FTCA remedy

“exclusive of any other civil action or proceeding for money damages”). Failure to name the

United States as the defendant in an FTCA action requires dismissal for lack of subject-matter

jurisdiction. See, e.g., Johnson v. Veterans Affairs Med. Ctr., 133 F. Supp. 3d 10, 17 (D.D.C.

2015); Cox v. Sec’y of Labor, 739 F. Supp. 28, 29 (D.D.C. 1990).

For that reason, here, the Court must dismiss Dr. Coulibaly’s claims against federal

employees in their official capacities. Any tort claims based on the employees’ official actions

must be considered as claims against the United States; the official-capacity claims against the

employees cannot proceed. Given that Dr. Coulibaly has, however, also sued the United States,

see Compl., the Court now turns to whether Dr. Coulibaly’s tort claims against the United States

may proceed under the FTCA. The Court determines that they cannot, for two principal reasons.

First, federal antidiscrimination statutes preclude consideration of Dr. Coulibaly’s

discrimination, retaliation, and emotional distress claims (Counts 7, 16, and 21 of the complaint)

under the FTCA. For claims of race and national origin discrimination, Title VII “provides the

exclusive judicial remedy . . . in covered federal employment.” Kizas v. Webster, 707 F.2d 524,

542 (D.C. Cir. 1983) (brackets and internal quotation marks omitted) (quoting Brown v. GSA,

425 U.S. 820, 835 (1976)); see also 42 U.S.C. § 2000e-16 (banning discrimination in federal

employment and authorizing judicial relief for violations of that ban). Thus, allegations of race

and national original discrimination are only actionable under Title VII. Myvett v. Williams, 638

F. Supp. 2d 59, 69–70 (D.D.C. 2009) (citing Brown, 425 U.S. at 829; Ethnic Employees of

Library of Congress v. Boorstin, 751 F.2d 1405, 1415 (D.C. Cir. 1985)). Likewise, Title VII

preempts most tort claims alleging discrimination-related infliction of emotional distress. See

38
Boyd v. O’Neill, 273 F. Supp. 2d 92, 96 (D.D.C. 2003) (explaining that “[a]ny emotional injuries

arising from [an] alleged [discrimination claim] are subsumed within Title VII,” but that this

principle does not extend to emotional distress based on “alleged assaultive conduct” or other

conduct that Title VII does not redress); accord Jackson v. Am. Chem. Soc’y, 812 F. Supp. 239,

243 (D.D.C. 1993); Stewart v. Thomas, 538 F. Supp. 891, 895–96 (D.D.C. 1982).24

Along similar lines, for disability discrimination claims, the Rehabilitation Act “is the

sole judicial remedy for federal employees alleging disability discrimination” and accordingly

preempts any emotional distress claim arising from disability discrimination. Perry v. United

States, No. 14-2862, 2015 WL 3558081, at *3 (D. Md. June 2, 2015) (citing Brown v.

Henderson, 6 F. App’x 155, 156 (4th Cir. 2011); and Spence v. Straw, 54 F.3d 196, 202 (3d Cir.

1995)), appeal docketed, No. 16-1129 (4th Cir. Feb. 9, 2016). Here, because Dr. Coulibaly

alleges emotional distress arising from discrimination that Title VII and the Rehabilitation Act

can remedy, see Compl. ¶¶ 144, 147, Title VII and the Rehabilitation Act preempt

Dr. Coulibaly’s discrimination, retaliation, and emotional distress claims, to the extent they seek

24
Although Count 21 alleges “personal injury,” Compl. ¶ 208, the Court construes the
Count as alleging only emotional injury, given that Dr. Coulibaly has not alleged any physical
harm flowing from the conspiracy asserted in that Count, see id.

39
tort law remedies.25 The Court will accordingly dismiss Counts 7, 16, and 21 of Dr. Coulibaly’s

complaint, to the extent that they allege tort claims against the United States.26

Second, to the extent that Dr. Coulibaly may seek to apply the FTCA to his claims of

misrepresentation, fraud, defamation, character assassination, promissory fraud, violation of the

implied covenant of good faith and fair dealing, and promissory estoppel (asserted in Counts

8–11 and in the first of the two counts labeled “Count 19” in the complaint), those claims cannot

proceed because they fall under express statutory exemptions.27 The FTCA explicitly specifies

that it does not apply to claims “arising out of . . . libel, slander, misrepresentation, deceit or

interference of contract rights.” See 28 U.S.C. § 2680(h). Dr. Coulibaly’s claims of defamation

and “character assassination” fall squarely within the exemptions for libel and slander. See

Lewis v. Dist. of Columbia, No. 10-5275, 2011 WL 321711, at *1 (D.C. Cir. Feb. 2, 2011) (per

curiam) (noting that “defamation claims are not cognizable under the FTCA”); Novecon, Ltd. v.

Bulgarian-Am. Enter. Fund, 977 F. Supp. 52, 54 (D.D.C. 1997), aff’d, 190 F.3d 556 (D.C. Cir.

1999) (applying defamation law to a claim of “character assassination”); see also Thomas v.

Dep’t of Veterans Affairs, No. 05-5348, 2006 WL 1636738, at *4 (S.D.N.Y. Apr. 3, 2006) (in the

25
The federal antidiscrimination statutes would also preempt any tort claims that
Dr. Coulibaly seeks to bring under the Constitution. See Compl. ¶ 147 (alleging a due process
violation as one cause of his emotional distress claim, asserted in Count 16 of the complaint).
See generally Kizas v. Webster, 707 F.2d 524, 542 (D.C. Cir. 1983) (“The Title VII remedy
declared exclusive for federal employees in Brown v. GSA precludes actions against federal
officials for alleged constitutional violations as well as actions under other federal legislation.”).
And, in any event, constitutional tort claims cannot proceed under the FTCA, because the
FTCA’s grant of sovereign immunity does not extend to constitutional tort claims. See FDIC v.
Meyer, 510 U.S. 471, 478 (1994) (“[T]he United States . . . has not rendered itself liable under
[the FTCA] for constitutional tort claims.”).
26
The Court discusses the merits of Dr. Coulibaly’s Title VII and Rehabilitation Act
claims elsewhere in this opinion. See infra Parts III.C–D.
27
For thoroughness, the Court addresses Dr. Coulibaly’s contract-related claims in both
the tort and contract contexts.

40
context of the FTCA, liberally construing pro se plaintiff’s claim of “character assassination” to

mean defamation). His claims of misrepresentation, fraud, and promissory fraud are precluded

by the exemptions for misrepresentation and deceit. See United States v. Neustadt, 366 U.S. 696,

702 (1961) (holding that the word “deceit” includes fraudulent and negligent misrepresentation);

Chedick v. Nash, 151 F.3d 1077, 1081–82 (D.C. Cir. 1998) (analyzing “promissory fraud” within

the context of fraudulent misrepresentation). As for Dr. Coulibaly’s claims for breach of an

implied covenant of good faith and fair dealing and promissory estoppel, to the extent that they

are construed as tort claims, they fall under the statutory exemption for interference of contract

rights. See Selland v. United States, 966 F.2d 346, 347 (8th Cir. 1992) (liberally construing

facial breach of contract claims as tortious interference with contractual relations, and finding

them exempt under the FTCA); Foster v. Fed. Emergency Mgmt. Agency, 128 F. Supp. 3d 717,

723 (E.D.N.Y. 2015) (analyzing breach of contract and promissory estoppel claims together in

the context of the FTCA). The United States retains immunity from these claims, for FTCA

purposes, and courts must dismiss any suits asserting those claims under the FTCA. See, e.g.,

Wuterich v. Murtha, 562 F.3d 375, 381 (D.C. Cir. 2009); Peter B. v. United States, 579 F. Supp.

2d 78, 82–83 (D.D.C. 2008); Edmonds v. United States, 436 F. Supp. 2d 28, 35 (D.D.C. 2006).

The Court will accordingly dismiss Dr. Coulibaly’s contract-related, defamation, character

assassination, and misrepresentation claims (asserted in Counts 8–11 and in the first of the two

counts titled “Count 19” in the complaint), to the extent that they seek relief under the FTCA,

because they are barred by statute.

b. Contract Claims Under the Tucker Act

Having decided that the Court must dismiss Dr. Coulibaly’s tort claims against federal

employees in their official capacities and against the United States, the Court next analyzes

41
Dr. Coulibaly’s contract claims against the United States and against federal employees in their

official capacity. To that end, the Court once again discusses Counts 8–11 of the complaint,

which assert misrepresentation, fraud, promissory fraud, violation of the implied covenant of

good faith and fair dealing, and promissory estoppel. These claims, which Dr. Coulibaly cannot

bring under the FTCA, are more properly read as contract claims to which the Tucker Act would

apply. But, even to the extent that they seek relief under the Tucker Act, the Court must still

dismiss them for want of jurisdiction.

Under the Tucker Act, Congress waived sovereign immunity with regard to “any claim

against the United States . . . upon any express or implied contract with the United States.” 28

U.S.C. § 1491(a)(1). Moreover, the Tucker Act provides the only waiver of sovereign immunity

for claims arising out of contracts with the United States. Schmidt v. Shah, 696 F. Supp. 2d 44,

61 (D.D.C. 2010). But the Tucker Act states that “[t]he United States Court of Federal Claims

shall have jurisdiction to render judgment upon any claim against the United States founded . . .

upon any express or implied contract with the United States.” 28 U.S.C. § 1491(a)(1) (emphasis

added). If a claimant does not limit the damages sought to an amount at or below $10,000, then

the jurisdiction of the Court of Federal Claims is exclusive. See Greenhill v. Spellings, 482 F.3d

569, 573 (D.C. Cir. 2007) (“If [the plaintiff] explicitly or in essence seeks money damages in

excess of $10,000, jurisdiction rests exclusively with the Court of Federal Claims.”); cf. 28

U.S.C. § 1346(a)(2) (stating that the United States district courts exercise concurrent jurisdiction

over “[a]ny . . . claim against the United States, not exceeding $10,000 in amount, founded . . .

upon any express or implied contract with the United States” (emphasis added)).

Here, Dr. Coulibaly has requested an amount greater than the $10,000 jurisdictional cap:

in the FTCA claim against the Department of State in which he alleges “Breach of Contract,” he

42
requests $10,000,000 in damages. See Defs.’ Facts Ex. CC at 1, ECF No. 30-29.28 Because

Dr. Coulibaly’s claimed contract-related damages exceed $10,000, the Court must also dismiss

for lack of jurisdiction any contract claims that Dr. Coulibaly seeks to bring against the United

States under the Tucker Act.

* * *

In sum, to the extent that Counts 7–11, Count 16, Count 21, and the first of the two

counts labeled “Count 19” in the complaint allege tort or contract claims against the United

States or against individual defendants in their official capacities, the Court must dismiss them.

Personal Capacity Claims

The Court now considers whether any of these claims may proceed against the individual

defendants in their personal capacities, given that Dr. Coulibaly states that he is suing all of the

individual defendants, except for Secretary Kerry, in their official and personal capacities. Pl.’s

Resp. ¶ 155. In a suit against a federal employee in his personal capacity, unlike one against a

federal employee in his official capacity, the plaintiff need not establish a waiver of sovereign

immunity. See, e.g., Majano v. United States, 469 F.3d 138, 139 (D.C. Cir. 2006) (indicating

that sovereign immunity is not a bar to relief if allegedly tortious conduct occurred outside the

scope of the tortfeasor’s employment). But (1) for lack of proper service and (2) because they

fail to state claims upon which relief may be granted, the Court must also dismiss

Dr. Coulibaly’s tort and contract claims against the individual defendants in their personal

capacities. The Court addresses the service issue before addressing the claims on their merits.

28
In his response to the Defendants’ motion, Dr. Coulibaly concedes that the United
States is the proper defendant for his FTCA claims. Pl.’s Resp. ¶ 160. Consequently, the Court
views this FTCA claim as one filed against the United States, even if Dr. Coulibaly initially
sought relief from the Department of State.

43
a. Lack of Proper Service

In addition to effectuating service on the United States under Federal Rule of Civil

Procedure 4(i)(1), a plaintiff who sues government officials in their individual capacities must

also personally serve the individual officials themselves. See Fed. R. Civ. P. 4(i)(3) (“[A] party

must . . . serve the officer or employee under Rule 4(e), (f), or (g).”); Simpkins v. D.C. Gov’t, 108

F.3d 366, 368–69 (D.C. Cir. 1997) (explaining that in Bivens suits, which are “actions against

federal officers in their individual capacity, not their official capacity,” the defendants “must be

served as individuals”). To serve the personal-capacity defendants in this case, therefore, the

complaint and the summons must be

(1) delivered to each individual personally, Fed. R. Civ. P. 4(e)(2)(A); or

(2) left at each individual’s “dwelling or usual place of abode with someone of

suitable age and discretion,” Fed. R. Civ. P. 4(e)(2)(B); or

(3) delivered to “an agent authorized by appointment or law to receive service of

process,” Fed. R. Civ. P. 4(e)(2)(C); or

(4) mailed by “registered or certified mail, return receipt requested,” or “by first-class

mail, postage prepaid, to the person to be served, together with two copies of a

Notice and Acknowledgement . . . and a return envelope, postage prepaid,

addressed to the sender,” D.C. Super. Ct. R. Civ. P. 4(c)(3), (4); see Fed. R. Civ.

P. 4(e)(1) (allowing service in accordance with the state law applicable in the state

were the district court is located).

Because Dr. Coulibaly is proceeding in forma pauperis, however, service shall be made by a

United States marshal, by a deputy marshal, or by “a person specially appointed by the court.”

44
Fed. R. Civ. P. 4(c)(3); see Feb. 10, 2014 Fiat Order (granting Dr. Coulibaly’s motion for leave

to proceed in forma pauperis).

On the record as it stands, proper service has not been effected on the individual

defendants sued in their personal capacities. As the Defendants correctly note, the United States

Marshals Service delivered the summons and complaint for five of the individual defendants

(Soloman Atayi, Deborah Duckett, James North, Kristina Medick, and Jennifer Toole) to Krystal

Board, a Department of State administrative assistant. See Process Receipts and Returns, ECF

No. 4; Mem. Supp. Defs.’ Mot. Dismiss or, in the Alt., for Summ. J. (“Defs.’ Mem.”) at 5–6,

ECF No. 30. According to Defendants, Ms. Board is “a contract Administrative Assistant in the

State Department’s Office of the Legal Advisor.” Defs.’ Mem. at 6. On this record, none of the

four ways of properly serving the individual defendants in their personal capacities has occurred

with respect to Defendants Atayi, Duckett, North, Medick, and Toole:

(1) the complaint and summons were not delivered to those defendants personally, cf.

Fed. R. Civ. P. 4(e)(2)(A);

(2) they were not left at each defendant’s “dwelling or usual place of abode with

someone of suitable age and discretion,” Fed. R. Civ. P. 4(e)(2)(B);

(3) because “the Department is not an authorized agent for service of process with

respect to civil litigation against Department employees purely in their personal,

non-official capacity,” 22 C.F.R. § 172.2(c), the complaint and summons were not

delivered to “an agent authorized by appointment or law to receive service of

process,” Fed. R. Civ. P. 4(e)(2)(C); and

(4) the complaint and summons were not mailed to any of the individual defendants,

cf. D.C. Super. Ct. R. Civ. P. 4(c)(3), (4).

45
Further, the record reflects that no service has been attempted on the other individual

defendants sued in their personal capacities: Defendants Glenn Budd, Sarah Clement, Jeannette

Hilleary, Cynthia G. McKnight, Martin Regan, and Daniel Madden Turbitt. Cf. Process Receipts

and Returns, ECF No. 4 (showing delivery of the summons and complaint with respect to

Defendants Atayi, Duckett, North, Medick, and Toole only); Process Receipts and Returns, ECF

No. 6 (showing delivery of the summons and complaint with respect to the United States only).

On this record, none of the individual defendants sued in their personal capacities have been

properly served, and Dr. Coulibaly’s tort and contract claims cannot proceed against them for

lack of proper service. See generally Mann v. Castiel, 681 F.3d 368, 372 (D.C. Cir. 2012)

(explaining that the plaintiff has the burden to establish proper service).

Granted, Dr. Coulibaly is in forma pauperis and thus not himself responsible for effecting

service (even if he does bear the ultimate burden to establish proper service). See Fed. R. Civ. P.

4(c)(3). But even if Dr. Coulibaly, through the Marshals Service, were given another

opportunity to serve the individual defendants sued in their personal capacities, such tort or

contract claims against them would fail for other reasons, which the Court discusses below.29 As

such, re-attempting service would be futile.

29
The Court also notes here that, if the individual defendants sued in their personal
capacities were ever served, the United States would have the opportunity to certify under the
Westfall Act “that the defendant employee[s] [were] acting within the scope of [their] . . .
employment.” 28 U.S.C. § 2679(d)(1). If it did, then the United States would be substituted as
the party defendant, id., and any defects with the corresponding FTCA tort claims would be
applicable, see, e.g., Majano v. United States, 469 F.3d 138, 139 (D.C. Cir. 2006) (explaining
that, when the FTCA waiver of sovereign immunity does not cover the particular tort alleged, the
plaintiff’s “sole hope of success requires that she show [that the alleged tort] was not within the
scope of the [federal employee’s] employment”); Ramey v. Bowsher, 915 F.2d 731, 733–34
(D.C. Cir. 1990) (per curiam) (finding that supervisors were acting within the scope of their
employment and were exercising decisionmaking discretion, and therefore concluding that they
enjoyed absolute immunity from state-law tort actions). As discussed above, Dr. Coulibaly’s tort
and contract claims against the individual defendants in their official capacities cannot proceed

46
b. Expired Limitations Period

The Court first discusses Dr. Coulibaly’s “defamation and character assassination” claim

(the first “Count 19” in his complaint). This claim, if asserted against the individual defendants

in their personal capacities, is barred by the applicable statute of limitations. See Defs.’ Mem. at

28 (making this argument). It appears that this claim relates to statements made near the end of

Dr. Coulibaly’s employment at the Department of State, which concluded in April 2012. See

Compl. ¶¶ 185–92. For defamation claims, a one-year limitations period applies in the District

of Columbia. See D.C. Code § 12-301(4) (setting a one-year limitations period for libel and

slander claims); Mullin v. Wash. Free Weekly, Inc., 785 A.2d 296, 298 (D.C. 2001) (citing D.C.

Code § 12-301(4)) (noting that the limitations period “for a defamation claim in the District of

Columbia is one year”).30 That limitations period had accordingly expired by the time that

Dr. Coulibaly filed his complaint on February 10, 2014. See Compl. And the limitations period

would also have expired even if, as Dr. Coulibaly claims, he filed his complaint on November

15, 2013. See id. ¶ 162.

c. Preemption Under Title VII

Dr. Coulibaly’s infliction of emotional distress claims (asserted in Counts 7, 16, and 21

of his complaint) and Dr. Coulibaly’s contract claims (asserted in Counts 8–11), on the other

under the FTCA, because federal antidiscrimination statutes preempt many of those claims, and
because the FTCA’s waiver of sovereign immunity does not cover many of the claims alleged.
See supra Part III.B.2.a.
30
Dr. Coulibaly has not alleged that Maryland law should apply to his defamation claim.
See Compl. ¶¶ 184–92; Pl.’s Resp. ¶¶ 504–12; cf. Compl. ¶ 19 (alleging that Dr. Coulibaly is a
Maryland resident). But even if Maryland law did apply, a one-year limitations period would
apply under Maryland law as well. See Md. Code Ann., Cts. & Jud. Proc. § 5-105 (“An action
for . . . libel, or slander shall be filed within one year from the date it accrues.”); McClure v.
Lovelace, 78 A.3d 934, 949 (Md. 2013) (“In Maryland, the statute of limitations for defamation
is one year from the date of accrual.”).

47
hand, cannot proceed against the individual defendants in their personal capacities for a reason

already mentioned: Title VII preempts those claims. See supra Part III.B.2.a (explaining, in the

context of tort claims against the United States, that Title VII preempts most discrimination-

related emotional distress claims). In a case in which “the same set of facts supports a Title VII

claim and a non-Title VII claim against a federal employer, the Title VII claim preempts the

non-Title VII claim.” Bergbauer v. Mabus, 810 F. Supp. 2d 251, 260 (D.D.C. 2011) (internal

quotation marks omitted) (quoting Mathis v. Henderson, 243 F.3d 446, 450–51 (8th Cir. 2001)).

This preemptive effect applies both to non-Title VII federal law claims and to common law tort

and contract claims. See King v. Holder, 941 F. Supp. 2d 83, 92 (D.D.C. 2013) (explaining that

Title VII preempts “both [federal] constitutional claims and common law tort claims arising out

of the same conduct that forms the basis for a plaintiff’s Title VII claim”); Berio v. EEOC, 446

F. Supp. 171, 173–74 (D.D.C. 1978) (finding that Title VII precluded a plaintiff’s claims under

42 U.S.C. § 1981 and the Fifth Amendment); Smith v. Lujan, 780 F. Supp. 1275, 1279 (D. Ariz.

1991) (finding that Title VII precluded the plaintiff’s due process and breach of contract claims);

Carver v. Casey, 669 F. Supp. 412, 417 (S.D. Fla. 1987) (“[T]he gist of plaintiff's “breach of

contract” claims is employment discrimination, for which Title VII stands as a federal

employee’s exclusive remedy.”). And Title VII’s preemptive effect “is the same as to claims

against individual supervisors as it is for claims against federal agencies themselves.”

Bergbauer, 810 F. Supp. 2d at 260; see also Mathis, 243 F.3d at 450 (holding that the plaintiff

could not “bring state-law claims against [her supervisor] arising out of the same facts [as her

48
employment discrimination claim] simply by labeling them as something other than employment

discrimination claims”).31

Here, Dr. Coulibaly’s emotional distress and contract claims derive from the same facts

as his Title VII claims. For his infliction of emotional distress claim (Count 7 of his complaint),

Dr. Coulibaly draws on the same facts to support that claim as the ones used to support his

hostile work environment claim. See Compl. ¶¶ 106–09. His contract claims in Counts 8–11 of

his complaint likewise derive from facts used to support claims of discrimination. Compare id.

¶¶ 37–103 (using facts relating to Dr. Coulibaly’s time as a contractor to support claims of

discrimination), with id. ¶¶ 110–17 (using the same facts to support his contract claims). And

Dr. Coulibaly expressly alleges Title VII violations as the basis for his emotional distress claim

in Count 16 of his complaint. See id. ¶ 147. 32 Lastly, Dr. Coulibaly’s emotional distress claim

31
The Court acknowledges that older opinions in this district indicate that Title VII does
not preempt tort claims against federal supervisors in their personal capacities, even if those
claims derive from the same facts as related employment discrimination claims. See Epps v.
Ripley, No. 81-0588, 1982 WL 514, at *1 (D.D.C. Mar. 11, 1982); Neely v. Blumenthal, 458 F.
Supp. 945, 954–55 (D.D.C. 1978). But given the more recent opinions holding otherwise, the
Court finds that the older opinions have not “withstood the test of time nor the thrust of new
caselaw.” Kittner v. Gates, 708 F. Supp. 2d 47, 53 (D.D.C. 2010) (discussing Neely).
32
Title VII also preempts consideration of any constitutional due process claim against
individual defendants in their personal capacities. See Kizas v. Webster, 707 F.2d 524, 542 (D.C.
Cir. 1983) (“The Title VII remedy declared exclusive for federal employees in Brown v. GSA
precludes actions against federal officials for alleged constitutional violations . . . .”); Kittner,
708 F. Supp. 2d at 53–54 (dismissing constitutional claims that challenged the same acts as those
challenged by the plaintiff’s Title VII claims); Berio v. EEOC, 446 F. Supp.171, 173–74 (D.D.C.
1978) (holding that Title VII’s remedies precluded a plaintiff from pursuing claims against an
official in his individual capacity under the Fifth Amendment); cf. Compl. ¶ 147 (alleging due
process violations in Count 16 of the complaint).
Nor may Dr. Coulibaly sue federal officials in their personal capacities under Title VII,
the Americans with Disabilities Act (“ADA”), or the Rehabilitation Act. See Ndzerre v.
WMATA, No. 15-1229, 2016 WL 1225599, at *5 (D.D.C. Mar. 23, 2016) (citing Gary v. Long,
59 F.3d 1391, 1399 (D.C. Cir. 1995)) (“Supervisory employees may only be sued in their official
capacity, because employers alone are liable for Title VII violations.”); Di Lella v. Univ. of D.C.
David A. Clarke Sch. of Law, 570 F. Supp. 2d 1, 7 n.8 (D.D.C. 2008) (“[T]here is no individual
liability under the ADA or the Rehabilitation Act.”); accord Richardson v. Yellen, No. 14-1673,

49
in Count 21 relies on the same conspiracy allegations he asserted in the context of a

discrimination claim. Compare id. ¶¶ 207–08 (alleging that “conspiracy, collusion and

machination between . . . agencies” is evidence of infliction of emotional distress), with id.

¶¶ 197–206 (alleging discriminatory conspiracy), and Defs.’ Facts Ex. W, at 2, ECF No. 30-23

(showing that Dr. Coulibaly alleged, in the context of an administrative discrimination

complaint, that the Department of State conspired with the MSPB).

Because Dr. Coulibaly’s tort and contract claims derive from the same facts as his Title

VII claims, Title VII would preempt consideration of those claims against individual defendants

in their personal capacities. See Mathis, 243 F.3d at 450 (explaining that the Supreme Court’s

holding in Brown v. GSA, 425 U.S. 820 (1976), prevents courts from allowing a plaintiff to sue a

supervisor “individually, for the consequences of the same acts that [he] alleges to be

[discrimination] under federal law”); cf. id. (“The situation would be different if [the plaintiff]

were relying on altogether different incidents to support [his] state-law claims, with no intention

of using evidence of the same incidents to prove . . . the Title VII [claims] . . . .”). Thus, even if

all the individual defendants were properly served, Dr. Coulibaly’s tort and contract claims

against them could not proceed.

2016 WL 890570, at *9 (D.D.C. Mar. 8, 2016) (discussing the Rehabilitation Act); Hillware v.
Snyder, 151 F. Supp. 3d 154, 157–58 (D.D.C. 2015) (discussing Title VII); cf. Compl. ¶ 147
(alleging Title VII, ADA, and Rehabilitation Act violations in Count 16 of the complaint). And
to the extent that Dr. Coulibaly seeks to bring claims under 5 U.S.C. § 2302(b) or 5 C.F.R.
§ 1201.56, those authorities do not contain a private right of action. See 5 U.S.C. § 2302(b)(1)
(prohibiting discrimination in federal employment, but without establishing a right to sue); 5
C.F.R. § 1201.56 (discussing the burden of proof in MSPB administrative cases); cf. Compl.
¶ 147 (alleging violations under these authorities in Count 16 of the complaint).

50
* * *

None of Dr. Coulibaly’s tort or contract claims are legally cognizable against individual

defendants in their personal capacities, even if Dr. Coulibaly had properly served them. And, as

discussed earlier, those claims also cannot proceed against the United States or against individual

defendants in their official capacities. See supra Part III.B.2. The Court will accordingly

dismiss in their entirety Counts 7–11, Count 16, Count 21, and the first “Count 19” in

Dr. Coulibaly’s complaint, to the extent that those claims allege tort or contract claims.

C. Title VII

The Court now turns to those of Dr. Coulibaly’s claims that could be construed to allege

claims under Title VII of the Civil Rights Act of 1964. The following counts of the complaint

appear to request relief under Title VII:

(1) Count 1, which alleges discrimination based on FSI’s failure to hire

Dr. Coulibaly on June 15, 2007, see Compl. ¶¶ 97–98;

(2) Count 2, which alleges discrimination based on FSI’s failure to promote

Dr. Coulibaly on June 15, 2007, see id. ¶ 99;

(3) Count 3, which alleges “discrimination based on race and color” generally, see

id. ¶¶ 100–01;

(4) Count 4, which alleges disparate-treatment discrimination in connection to

FSI’s choice “to hire another teacher with less seniority, less experience, [and]

less education,” id. ¶¶ 102–03;

(5) Count 5, which alleges reprisal and retaliation in “violation of Title VII . . . as

well [as] the First Amendment” based on Dr. Coulibaly’s “political activities

related to his country of origin,” id. ¶¶ 104–05;

51
(6) Count 6, which alleges a “hostile and abusive working environment . . . in

violation of Title VII,” id. ¶¶ 106–07;

(7) Count 13, which alleges wrongful discharge, see id. ¶¶ 127–29;

(8) Count 14, which concerns Dr. Coulibaly’s “third EEOC complaint of retaliation

and discrimination,” id. ¶¶ 130–139;

(9) Count 15, which alleges that MSPB judges committed conspiracy in violation of

42 U.S.C. § 1985, see id. ¶¶ 140–42;33

(10) Count 16, which asks the Court to review his retaliation claims relating to

events that occurred in 2009, see id. ¶¶ 143–64; and

(11) Count 20, which broadly alleges conspiracy, due process violations, abuse of

process, procedural error, retaliation, discrimination, and infliction of emotional

distress under 42 U.S.C. § 1985, see id. ¶¶ 197–206.

The Court reviews the applicable legal standard before turning to the merits of these claims.

Legal Standard

When, on a motion to dismiss, “matters outside the pleadings are presented to and not

excluded by the court, the motion must be treated as one for summary judgment under Rule 56”

and the parties “must be given a reasonable opportunity to present all the material that is

pertinent to the motion.” Fed. R. Civ. P. 12(d). Here, both parties have submitted evidence

outside the pleadings in support of their positions, and they rely on them when discussing

33
Although Count 15 seeks to bring a claim under 42 U.S.C. § 1985, the claim asserted
appears to derive from the same facts as Count 14, which explicitly alleges retaliation and
discrimination. See Compl. ¶¶ 130–42. The Court therefore addresses both counts within Title
VII’s conceptual framework. See generally Kizas v. Webster, 707 F.2d 524, 542 (D.C. Cir.
1983) (“The Title VII remedy declared exclusive for federal employees in Brown v. GSA
precludes actions against federal officials . . . under other federal legislation.”).

52
Dr. Coulibaly’s Title VII claims. See, e.g., Defs.’ Mem. 11–23; Pl.’s Resp. ¶¶ 9–16. And

though it is improper to convert a Rule 12(b)(1) motion to dismiss for lack of subject-matter

jurisdiction into a motion for summary judgment, see Ord v. Dist. of Columbia, 587 F.3d 1136,

1140 (D.C. Cir. 2009), Defendants’ arguments about Dr. Coulibaly’s Title VII claims do not

assert that this Court lacks jurisdiction over those claims, see Def.’s Mem. 8 (acknowledging

Title VII claims against Secretary Kerry in his official capacity); see also id. at 32–40

(addressing the substance of the claims). Therefore, the Court considers Defendants’ substantive

Title VII arguments under the Rule 56 legal standard applicable to motions for summary

judgment.

Given that Defendants’ motion comes before discovery has commenced in this case, the

Court pays special heed to the principle that, typically, “summary judgment may not be granted

until all parties have had a full opportunity to conduct discovery.” United States ex rel. Folliard

v. Gov’t Acquisitions, Inc., 764 F.3d 19, 25 (D.C. Cir. 2014) (internal quotation marks omitted)

(quoting Convertino v. U.S. Dep’t of Justice, 684 F.3d 93, 99 (D.C. Cir. 2012)). This principle is

particularly relevant in a Title VII case, where “discovery may even uncover direct evidence of

discrimination, thus entirely eliminating the need to prove a prima facie case.” Chappell-

Johnson v. Powell, 440 F.3d 484, 488–89 (D.C. Cir. 2006). Nonetheless, to analyze whether

pre-discovery summary judgment might be proper here, the Court will analyze Defendants’

arguments on their merits, using the legal standard applicable to Rule 56 motions for summary

judgment. Cf. Info. Handling Servs., Inc. v. Def. Automated Printing Servs., 338 F.3d 1024,

1032 (D.C. Cir. 2003) (explaining that summary judgment “ordinarily” is proper only after

discovery (quoting Americable Int’l, Inc. v. Dep’t of Navy, 129 F.3d 1271, 1274 (D.C. Cir.

1997))).

53
Under Rule 56 of the Federal Rules of Civil Procedure, a court must grant summary

judgment 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). A “material” fact is

one capable of affecting the substantive outcome of the litigation. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if there is enough evidence for a

reasonable jury to return a verdict for the non-movant. See Scott v. Harris, 550 U.S. 372, 380

(2007). The inquiry under Rule 56 is essentially “whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so one-sided that one party must

prevail as a matter of law.” Anderson, 477 U.S. at 251–52.

The principal purpose of summary judgment is to determine whether there is a genuine

need for trial by disposing of factually unsupported claims or defenses. See Celotex Corp. v.

Catrett, 477 U.S. 317, 323–24 (1986). The movant bears the initial burden of identifying

portions of the record that demonstrate the absence of any genuine issue of material fact. See

Fed. R. Civ. P. 56(c)(1); Celotex, 477 U.S. at 323. In response, the non-movant must point to

specific facts in the record that reveal a genuine issue that is suitable for trial. See Fed. R. Civ. P.

56(c)(1); Celotex, 477 U.S. at 324. The non-movant may not rest upon mere allegations or

denials but must instead present affirmative evidence. Laningham v. U.S. Navy, 813 F.2d 1236,

1241 (D.C. Cir. 1987) (citing Anderson, 477 U.S. at 256–57).

In considering a motion for summary judgment, a court must “eschew making credibility

determinations or weighing the evidence.” Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir.

2007). All underlying facts and inferences must be analyzed in the light most favorable to the

non-movant. See Anderson, 477 U.S. at 255. Nevertheless, conclusory assertions offered

54
without any evidentiary support do not establish a genuine issue for trial. See Greene v. Dalton,

164 F.3d 671, 675 (D.C. Cir. 1999).

Proper Defendant

Before proceeding, the Court discusses whether Dr. Coulibaly may pursue any Title VII

claims brought against defendants other than Secretary Kerry, given that Dr. Coulibaly states that

he sues all the defendants—save Secretary Kerry—in their personal and professional capacities.

Pl.’s Resp. ¶ 155. The head of the agency is the only proper defendant in a Title VII action. 42

U.S.C. § 2000e-16(c); Davis v. Califano, 613 F.2d 957, 958 n.1 (D.C. Cir. 1980); Davis v.

Geithner, 919 F. Supp. 2d 8, 16 (D.D.C. 2013). “[W]hile a supervisory employee may be joined

as a party defendant in a Title VII action, that employee must be viewed as being sued in his [or

her] capacity as the agent of the employer, who is alone liable for a violation of Title VII.” Gary

v. Long, 59 F.3d 1391, 1399 (D.C. Cir. 1995). Moreover, Title VII does not impose liability on

individuals in their personal capacities; a claim against a supervisor “essentially merges” with

any claim against the employer itself. Id. For this reason, the Court will permit only

Dr. Coulibaly’s Title VII claims against Secretary Kerry in his official capacity to proceed, and

the Court will dismiss Dr. Coulibaly’s Title VII claims against the other defendants.

Exhaustion

For the Title VII claims against Secretary Kerry, the Court must undertake an additional

preliminary analysis. Because Defendants contend that the Court should dismiss many of

Dr. Coulibaly’s Title VII claims because he failed to exhaust administrative remedies, see Defs.’

Mem. at 10–11, 14 n.7, the Court addresses exhaustion before addressing the merits of the Title

VII claims.

55
A federal employee seeking to bring a claim under Title VII must first exhaust his

administrative remedies. See 42 U.S.C. § 2000e-16(c) (stating that plaintiffs may bring suit only

(1) “[w]ithin 90 days of receipt of notice of final action taken by a department, agency, or

unit . . . , or by the [EEOC] upon an appeal from a decision or order of such department, agency

or unit” or (2) “after one hundred and eighty days from the filing of the initial charge with the

department, agency, or unit or with the [EEOC]”); Scott v. Johanns, 409 F.3d 466, 468 (D.C. Cir.

2005) (“[B]efore filing suit, an individual alleging that a federal agency engaged in employment

discrimination must seek administrative adjudication of the claim.”). Additionally, the employee

must contact an EEO counselor within forty-five days of the alleged discriminatory action. See

29 C.F.R. § 1614.105(a)(1); accord Greer v. Paulson, 505 F.3d 1306, 1316–17 (D.C. Cir. 2007).

That initial contact with a counselor triggers a set of events leading to a final agency

action, after which the employee (if displeased with that action) may file suit in federal district

court. See 29 C.F.R. § 1614.105(d)–(f) (stating that the EEO counselor must give the employee

notice of his right to file an administrative discrimination complaint with the employing agency);

id. § 1614.110 (describing final actions that agencies may take with respect to their employees’

administrative discrimination complaints); id. § 1614.407(a) (stating that employees may file suit

in federal district court ninety days after a final agency action). If the agency does not take

action within 180 days after an employee files a discrimination complaint with the agency, then

the employee may file suit in federal district court regardless. See id. § 1614.407(b). In any civil

action, a plaintiff must restrict his claims to those that are “like or reasonably related to”

allegations made before an administrative body. Park v. Howard Univ., 71 F.3d 904, 907 (D.C.

Cir. 1995) (internal quotation mark omitted) (quoting Cheek v. W. & S. Life Ins. Co., 31 F.3d

497, 500 (7th Cir. 1994)).

56
A plaintiff may escape the forty-five-day time limit for contacting an EEO counselor in

two ways. First, the agency must extend the forty-five-day time limit in certain circumstances:

(1) when the employee “shows that he . . . was not notified of the time limits and was not

otherwise aware of them,” (2) when the employee “did not know and reasonably should not

have . . . known” that the alleged discriminatory action had occurred, or (3) when “despite due

diligence he . . . was prevented by circumstances beyond his . . . control from contacting the

counselor within the time limits.” See 29 C.F.R. § 1614.105(a)(2). Second, the time limits

applicable to plaintiffs’ exhaustion responsibilities are separately subject to equitable doctrines,

such as tolling and estoppel. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113

(2002); accord 29 C.F.R. § 1614.604(c). Generally, courts allow tolling “only in extraordinary

and carefully circumscribed instances.” Dyson v. Dist. of Columbia, 710 F.3d 415, 421 (D.C.

Cir. 2013) (internal quotation marks omitted) (quoting Smith–Haynie v. Dist. of Columbia, 155

F.3d 575, 579–80 (D.C. Cir. 1998)). The plaintiff must show “(1) that he has been pursuing his

rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented

timely filing.” Id. (alterations omitted) (quoting Holland v. Florida, 560 U.S. 631, 649 (2010)).

The Court applies these principles to Dr. Coulibaly’s Title VII claims, grouped by time

period. The Court begins with claims relating to the Department’s decision not to hire

Dr. Coulibaly in 2007, asserted in Counts 1–5 of the Complaint. See Compl. ¶¶ 97–105.34 The

34
Although the complaint describes “Count 3” and its claim of “discrimination based on
race and color” broadly, without confining Count 3 to any particular adverse employment action,
Count 3 appears alongside claims made with respect to FSI’s failure to hire Dr. Coulibaly in
2007. See Compl. ¶¶ 97–103. The Court will therefore analyze Count 3 in the context of claims
made about the FSI’s actions in 2007, as Defendants do in their motion. See Defs.’ Mem. 10.
To the extent that Count 3 alleges wrongdoing with respect to Dr. Coulibaly’s later employment
or his ultimate termination, the Court analyzes those claims in the context of Dr. Coulibaly’s
hostile work environment claim (Count 6 of the complaint), see Compl. ¶¶ 106–07, or in the

57
Court then analyzes whether Dr. Coulibaly exhausted his administrative remedies for claims

relating to the Department’s decision not to hire him in 2009, asserted in Count 16. See id.

¶ 161.35 And the Court also briefly discusses whether Dr. Coulibaly exhausted administrative

remedies for (1) his hostile work environment claim, asserted in Count 6, see id. ¶¶ 106–07;

(2) his wrongful discharge claim relating to his termination in 2012, asserted in Count 13, see id.

¶¶ 127–29; and (3) his claims relating to events after his termination, asserted in Counts 14–15

and 20, see id. ¶¶ 130–42, 197–206.

a. Failure to Hire or Promote in 2007

Dr. Coulibaly’s claims in Counts 1–5 of his complaint allege that he was subjected to

discrimination on the basis of race, color, and national origin because FSI did not hire or promote

him in 2007. Id. ¶¶ 97–105. But the record indicates that only one of Dr. Coulibaly’s

administrative complaints against the Department of State related to events that occurred in

2007, and that complaint merely alleges discrimination based on the Department of State’s

context of Dr. Coulibaly’s wrongful discharge claim (Count 13 of the complaint), see id.
¶¶ 127–29.
Likewise, because Count 4 appears to allege disparate-treatment discrimination based on
the same failure to hire discussed in Counts 1 and 2 of the complaint, see id. ¶¶ 97–99
(discussing failure to hire or promote in 2007), the Court discusses it in the context of the claims
related to FSI’s actions in 2007.
Count 5 similarly appears to allege a Title VII violation based on the same 2007 events.
Those events included discussions about Dr. Coulibaly’s political speech. See supra Part II.A.2.
Given that Count 5 primarily focuses on that political speech, Count 5’s allusion to a Title VII
violation appears to, like Counts 1–4, derive from events that occurred in 2007. Because
Dr. Coulibaly alleges both Title VII and First Amendment retaliation in Count 5, see Compl.
¶ 105, the Court addresses Count 5 under both bodies of law.
35
Although Count 16 generally alleges tort claims, claims under the FTCA, and
violations of various federal statutes, see Compl. ¶¶ 144–47, Dr. Coulibaly asks the Court to
review Title VII claims related to 2009 events in a paragraph within Count 16. See Compl.
¶ 161. The Court therefore addresses Count 16 in the Title VII context, as well as in the tort and
contract context.

58
submission of a 2007 hiring document to the MSPB. See supra Part II.C (discussing

Dr. Coulibaly’s di

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4077368. Public record. Not legal advice.