Smith v. Blinken

MIHAELA BILIOVSCHI SMITH, Plaintiff, v. ANTONY BLINKEN, Secretary, United States Department of State, Defendant.

Civil Action No. 1:18-cv-03065 (CJN)

United States District Court, District of Columbia

August 24, 2021

MEMORANDUM OPINION

CARL J.NICHOLS United States District Judge

For over two years, Mihaela Biliovschi Smith worked for the State Department as a Media Outreach Assistant out of the American embassy in Yaounde, Cameroon. Compl. ¶ 6, ECF No. 1. A series of disputes among Ms. Smith, a coworker, and embassy management resulted in Ms. Smith filing this lawsuit, which alleges violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Compl. ¶¶ 55-60. The State Department has moved to dismiss, or alternatively, for summary judgment. See generally Def.'s Mot. to Dismiss & for Summ. J (“Mot.”), ECF No. 28. The Court denies the motion for reasons that follow.^[1]

I. Background

An American citizen of Romanian national origin, Mihaela Biliovschi Smith accompanied her husband Derrin Ray Smith to Yaounde, Cameroon in August 2014.^[2] See Joint Chronological Statement of Material Facts (“Joint Statement”), ECF No. 38 at ¶¶ 1-3. Mr. Smith ventured to Africa to work as a foreign service officer with the U.S. embassy. Id. ¶ 3. During their first year in Cameroon together, Mr. and Ms. Smith attended an embassy-hosted dinner where the deputy chief of the embassy Greg Thome, allegedly told Ms. Smith at the dinner table that her “country right now is the United States of America” and that “at the State Department, we don't work for the interests of the Romanians.” Id. ¶ 5. Thome, Ms. Smith also claims, later inquired into whether she “spoke Russian.” Id. ¶ 13. Ms. Smith perceived Thome's comments related to her Romanian ethnicity as odd discomforting, and concerning. Derrin Ray Smith Decl (“Smith Decl.”), ECF No. 31-8 at 2. Yet neither Ms. Smith nor her husband apparently took action in response.

Early in 2015, Ms. Smith applied for a position with the embassy as a “Media Outreach Assistant.” See Joint Statement ¶¶ 6, 10.^[3] She got the job. Id. ¶ 14. The job offer stated that Ms. Smith would begin her employment with the embassy at an entry-level pay rate. Id. ¶ 15. Upon receipt of the offer, Ms. Smith requested that the State Department conduct a superior qualifications rate review to determine whether she qualified for higher pay. Id. ¶¶ 16, 20.^[4] The assistant in the human resources department in charge of preparing Ms. Smith's hiring documents thought that Ms. Smith might qualify for a higher rate based on her “expansive knowledge” and experiential background. Id. ¶ 38.

Yet a higher-level manager in the human resources department, Charles Morrill, made the decision not to submit Ms. Smith's paperwork for a superior qualifications review, id. ¶ 44, and when he informed her of that decision, he referenced her Romanian perspective and Balkanized mindset. Id. ¶ 51. When asked in his deposition to clarify these comments, Morrill stated that he knew the “mindset” of Romanians based on his experience working with “Eastern Europeans.” Charles Morrill Dep. (“Morrill's Dep.”), ECF No. 28-9 at 4-5. He added that people from that part of the world hold a world view that “people are out to get you.” Id. at 5. The decision not to submit the paperwork generated conflict between Ms. Smith and embassy management. Ms. Smith nonetheless accepted the offer of employment.

A month or so after starting the job, Ms. Smith contacted the embassy's Information Management Officer, Ali Mokhtare, to voice frustration with her in-home internet connectivity. Joint Statement ¶ 54. Ms. Smith's first interaction with Mokhtare did not go well, id. ¶¶ 54-60, and that initial interaction led to a string of hostile communications among Mokhtare and the Smiths, which festered into multiple incidents. Id. ¶¶ 61-63. The series of events resulted in meetings between embassy management and Mr. and Ms. Smith. Id. ¶ 81.

As hostilities heated, Ms. Smith conducted an internet search regarding Mokhtare, discovering a 2005 story that discussed an accusation that Mokhtare had directed inappropriate contact at a female colleague. Id. ¶ 99. Ms. Smith informed her husband and some work colleagues about her discovery. Id. ¶ 110. She later filed reports explaining her discomfort working with Mokhtare, who at that point had started to stalk and harass her. Id. ¶ 111. She also called a confidential consultation service, taking the opportunity to express her discomfort about working with someone she described as a “sexual predator.” Id. ¶ 111.

In accordance with guidance from the confidential service, Ms. Smith phoned embassy management, including Ambassador Michael Hoza, to make it known that Mokhtare was harassing her. Id. ¶ 114. Within weeks, Ms. Smith informed a special agent tasked with investigating the allegations that things between her and Mokhtare had intensified. Id. ¶ 145. She also contacted an Equal Employment Opportunity counselor at the embassy to assist with filing a formal complaint. Id. ¶ 132, 150. Embassy management met with Ms. Smith on several occasions to discuss the situation, including her discovery and communication of the internet story about Mokhtare. Id. ¶ 152. During the meetings, Ms. Smith voiced her concerns and made suggestions to ameliorate the situation. Id. ¶ 156.

Ms. Smith engaged in mediation a few days after one of the meetings. Id. ¶ 163. The mediation concluded without resolution. Id. ¶ 166. Within the hour, embassy management emailed Ms. Smith a written counseling memo, which rehashed previous discussions and requested that all involved maintain minimum contact. Id. ¶ 167. It also directed Ms. Smith to “not make allegations of criminal conduct” about Mokhtare to “members of the Embassy community or outside” the embassy. Id. ¶ 169. Ms. Smith interpreted the statement as a “gag order, ” attempting to stop her from reporting on the workplace environment and Mokhtare's conduct. Id. ¶ 173.

Ms. Smith claims that, shortly before Thome left his position with the embassy, he left “turnover notes” to his successor and Ms. Smith's future supervisor. Id. ¶ 183. Those notes cast Ms. Smith in a negative light. Ms. Smith also claims that the notes caused Thome's successor to instruct others on ways to avoid speaking with Ms. Smith out of fear that she could “incriminate” them into providing more “ammo, ” “dirt, ” or “evidence of her mistreatment” for her complaint. Pl.'s Mem. in Opp'n to Mot. for Summary J., ECF No. 30 at 17. Ms. Smith alleges that the notes coupled with past conduct by embassy management spurred her to file a complaint with the Office of the Inspector General, alleging that Thome “engaged in reprisal, intimidation, as well as harassment as a result of my bringing up concerns regarding threats received from a fellow employee of the Department.” Joint Statement ¶ 183. She also filed a formal complaint of sex discrimination, national origin discrimination, and unlawful retaliation. Id. ¶ 177.

In December 2018, Ms. Smith filed this lawsuit against her employer for discrimination and for creating a retaliatory and a hostile work environment under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Compl. ¶¶ 55-60. The State Department has moved to for summary judgment on all of Ms. Smith's claims.

II. The Summary Judgment Standard

A court may grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A “genuine” dispute about a material fact does not exist unless “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). If the moving party has met its burden, the nonmoving party must set forth “specific facts showing that there is a genuine issue for trial” to defeat the motion. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Though the Court “may not resolve genuine disputes of fact in favor of the party seeking summary judgment, ” Tolan v. Cotton, 572 U.S. 650, 656 (2014) (citation omitted), the nonmoving party must show more than “[t]he mere existence of a scintilla of evidence in support of” its position, Anderson, 477 U.S. at 252. In other words, “there must be evidence on which the jury could reasonably find for [the nonmoving party].” Id.

“Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51 (2000) (quoting Anderson, 477 U.S. at 255). Yet “[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).

Although “summary judgment must be approached with specific caution in discrimination cases, a plaintiff is not relieved of [her] obligation to support [her] allegations by affidavits or other competent evidence showing that there is a genuine issue for trial.” Baylor v. Powell, 459 F.Supp.3d 47, 53 (D.D.C. 2020) (quotation omitted). As “conclusory allegations” and “unsubstantiated speculation” will not suffice to create genuine issues of material fact, “[s]ummary judgment for a defendant is most likely when a plaintiff's claim is supported solely by the plaintiff's own selfserving, conclusory statements.” Bell v. E. River Fam. Strengthening Collaborative, Inc., 480 F.Supp. 143, 149 (D.D.C. 2020) (quotation omitted).

III. Claim of...