Coulibaly v. Tillerson

273 F.Supp.3d 16

Tiemoko COULIBALY, Plaintiff,

v.Rex TILLERSON,¹ U.S. Secretary of State, et al., Defendants.

Civil Action No.: 14–0712 (RC)

United States District Court, District of Columbia.

Signed August 29, 2017

Tiemoko Coulibaly, Silver Spring, MD, pro se.

James M. Loots, Law Offices of James M. Loots PC, Washington, DC, for Plaintiff.

Wynne Patrick Kelly, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

DENYING THE PARTIES' CROSS–MOTIONS FOR SUMMARY JUDGMENT; DENYING PLAINTIFF'S MOTIONS TO ADD NEWLY ACQUIRED EVIDENCE

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

Plaintiff Tiemoko Coulibaly, proceeding pro se and in forma pauperis , brings this action against the Secretary of State and fifteen other individuals who are current or former employees of the U.S. Department of State (collectively, "Defendants"). Dr. Coulibaly alleges that by firing him, Defendants violated Title I of the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. §§ 2601 – 2654. The parties now move for summary judgment. After filing his cross-motion for summary judgment, Dr. Coulibaly also moved twice to add newly acquired evidence to the record.

Because Defendants have not shown that Title II of the FMLA governs this suit, the Court will deny Defendants' motion for summary judgment with respect to that argument. And because a genuine issue of material fact remains with respect to whether retaliation for FMLA-protected activities actually motivated Defendants' decision to terminate Dr. Coulibaly's employment, the Court will deny the parties' motions for summary judgment on the merits of Dr. Coulibaly's FMLA claim. Because the additional evidence that Dr. Coulibaly provided does not affect the Court's conclusion about the remaining issue of material fact, the Court will deny Dr. Coulibaly's motions to add newly acquired evidence.

II. BACKGROUND²

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

Dr. Coulibaly joined the Department of State's Foreign Service Institute ("FSI") as a French instructor in 1999. Compl. ¶ 4, ECF No. 1; Defs.' Stmt. Material Facts Supp. Cross–Mot. Summ. J. & Opp'n Pl.'s Mot. Summ. J. ("Defs.' Stmt.")

¶ 1, ECF No. 27–1. As an instructor, Dr. Coulibaly taught students speaking, reading, listening comprehension, and writing skills, and he provided input for planning, design, development, and evaluation of course content. Defs.' Stmt. ¶¶ 5–6, 9; see also Position Description, Pl.'s Mot. Summ. J. Ex. F, ECF No. 23–2, at 26–27.³ According to several of his colleagues, Dr. Coulibaly was well-regarded by his students and colleagues during this time.⁴

FSI initially hired Dr. Coulibaly as a contractor under a series of Blanket Purchase Agreements ("BPAs"). See Compl. ¶¶ 75, 83; Defs.' Stmt. ¶¶ 2–3; see also, e.g. , BPA Contract Modification, Pl.'s Mot. Summ. J. Ex. A, ECF No. 23–1, at 111–22 (modifying Dr. Coulibaly's BPA with an updated description of his work responsibilities, and indicating that the modified BPA would take effect on November 10, 2010). These BPAs stated that Dr. Coulibaly was a contractor only, and not an employee. See Defs.' Stmt. ¶ 4; see, e.g. , BPA Contract Modification at 120 ("Awardees of a [BPA] are not civil service or Foreign Service employees of the United States Government, and ... should not identify themselves as Government employees either orally or in writing."). The BPAs also required Dr. Coulibaly to submit invoices to the State Department to receive payment. See Defs.' Stmt. ¶ 3; see, e.g. , BPA Contract Modification, at 119 ("Contractors will submit invoices bi-weekly for hours worked through presentation of a Work Schedule and an invoice to the FSI Budget Office.").

B. Excepted Service Appointment at FSI (June 2011)

On June 19, 2011, Dr. Coulibaly began a two-year Excepted Service appointment within the Department of State as a French instructor. See Compl. ¶¶ 75, 83; Defs.' Stmt. ¶¶ 5–7; see also Letter from Swati Limaye to Tiemoko Coulibaly (May 27, 2011), Compl. Ex., ECF No. 1–1, at 113–14. Under this appointment, Dr. Coulibaly performed substantially the same duties as he had while he was a contractor. See Compl. ¶¶ 75, 83; Defs.' Stmt. ¶¶ 5–7. His appointment was subject to an initial one-year trial period. See Compl. ¶¶ 75, 83; Defs.' Stmt. ¶ 8.

C. Conflict with Supervisor Laura Fyfe (July 2011–November 2011)

During his appointment, Dr. Coulibaly initially reported to Language Training Supervisor ("LTS") Laura Fyfe. See Compl. ¶ 6; Defs.' Stmt. ¶ 11. The record contains several email chains that document the interactions between LTS Fyfe and Dr. Coulibaly during the first few months of his employment. See, e.g. , Email from Laura Fyfe (Nov. 7, 2011, 7:23 PM), ROI at 721–24, ECF No. 26–7; Email from Ann Keller–Lally to James North (Nov. 8, 2011, 9:38 AM), ROI at 725–34, ECF No. 26–7.

In one such email, LTS Fyfe states 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, 7:23 AM), ROI at 721. LTS Fyfe said that, during the discussion, she recommended to Dr. Coulibaly that he "work on his teaching portfolio by developing a specific skill since he [didn't] have pedagogical training." Id. When Dr. Coulibaly replied that he did not know how to do that, she told him to develop a "reading lesson plan." Id. This reading lesson plan later became a point of contention. See id. at 721–22.

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. See id. at 721. According to LTS Fyfe, Dr. Coulibaly responded by stating that he felt that his students were not yet ready to read. See id. LTS Fyfe later opined that the reading delay was "out of the ordinary" in a 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.

LTS Fyfe observed Dr. Coulibaly's class on August 18, 2011, as planned. Id. She followed up with Dr. Coulibaly by email later that day and the next day. Id. at 721–22.⁵ 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 (Aug. 19, 2011, 12:02 PM), ROI at 733.

Five days later, on August 24, 2011, Dr. Coulibaly submitted his reading lesson plan to LTS Fyfe.⁶ 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, 7:23 PM), ROI 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 the students to read and to "address some of the specifics of the article and the timing and level of the lesson." Id. at 722–23 (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.

More than a month later, LTS Fyfe says that she again requested a reading lesson plan. See id. Two days after her second request, Dr. Coulibaly responded by forwarding LTS Fyfe the same generic lesson plan that he had sent her in August. See Email from Tiemoko Coulibaly (Oct. 5, 2011, 8:55 AM), ROI at 732–33, ECF No. 26–7. LTS Fyfe then clarified that she found the August lesson plan to be unsatisfactory. See Email from Laura Fyfe (Oct. 5, 2011, 11:24 AM), ROI at 732, 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)). Dr. Coulibaly said 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 (Oct. 5, 2011, 12:36 PM), ROI at 731–32, 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, 7:23 PM), ROI at 724. LTS Fyfe asserts that, instead, she delegated the matter to another FSI employee, Dora Chanesman. See id. ; Email from Laura Fyfe (Nov. 4, 2011, 9:57 AM), ROI at 731, ECF No. 26–7.

In early November 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 a writing lesson plan, [she had] asked Dora Chanesman [to] assist [him] with the process." Email from Laura Fyfe (Nov. 4, 2011, 9:57 AM), ROI 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 (Nov. 4, 2011, 7:11 PM), ROI at 728, ECF No. 26–7. Disputing the idea that it was his fault they did not 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.

D. Communications with Second–Line Supervisors (November 2011–December 2011)

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...