Ashraf-Hassan v. Embassy of France in the United States

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SAIMA ASHRAF-HASSAN,
Plaintiff,
v. Civil Action No. 11-805 (JEB)
EMBASSY OF FRANCE IN THE
UNITED STATES,
Defendant.
MEMORANDUM OPINION
Plaintiff Saima Ashraf-Hassan, a citizen of France who was born in Pakistan, was
employed by Defendant French Embassy here in Washington from February 2002 through
January 2007. During her employment, she was responsible for administrative tasks for several
Embassy programs. In bringing this suit under Title VII, Ashraf-Hassan claims that she was
both subjected to a hostile work environment by her supervisors and colleagues and ultimately
terminated illegally on the basis of national origin, race, religion (Islam), retaliation, and
pregnancy. Defendant has now moved to dismiss the suit under Rule 12(b)(6) for failure to state
a claim. Because the Court finds that her termination claims were not exhausted in a timely
manner, it will grant Defendant’s Motion as to those (Counts IV, V, VI & VII). Plaintiff’s
remaining claims (Counts I, II, III & VIII), however, which allege a hostile work environment,
may proceed.
I. Background
According to her Amended Complaint, which must be presumed true for purposes of this
Motion, Plaintiff came to the United States in November 2001 to work as an unpaid intern at the
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French Embassy. Amended Compl., ¶¶ 13, 14. While interning, she learned of a paid position at
the Embassy that would allow her remain in the United States beyond her internship. Id., ¶¶ 16-
24. Plaintiff was ultimately hired for this position, and she began managing the internship-
placement program, effective February 1, 2002. Id., ¶¶ 26-27. In this position, Ashraf-Hassan
was supervised by Chantal Manes, head of the Cultural Service at the Embassy. Id., ¶ 46. When
Manes left the Embassy in December 2005, Robby Judes, Joint Cultural Advisor, supervised
Ashraf-Hassan’s internship-program responsibilities. Id., ¶ 48.
In addition to managing the internship program, Ashraf-Hassan also helped to coordinate
the Embassy’s institutional partnership with the French-American Cultural Exchange (FACE)
University Partnership Fund (UPF), a program between American and French universities. Id.,
¶¶ 39, 45. The UPF was replaced by the Partnership University Fund (PUF) in 2007, though
Ashraf-Hassan’s duties remained the same. Id., ¶ 42. In these duties, Plaintiff was supervised by
Dr. Christian Tual, who managed the day-to-day administration of both the UPF and PUF in
Washington. Id., ¶ 43.
Ashraf-Hassan claims that upon arriving at the Embassy she was subjected to a hostile
work environment, including comments by Manes and co-workers at the Embassy regarding her
national origin and ethnicity, such as:
• references by Manes to terrorists as “[y]our people,” id., ¶ 55;
• comments by Manes that she “[didn’t] know why your people do
things like this,” in reference to terrorist attacks, id., ¶ 56;
• comments by Manes in reference to a police raid following
September 11th attacks that “[t]he Pakistani did it again!” id., ¶ 57;
• a comment by a colleague that “[n]ow we hire terrorists,” directed
at Ashraf-Hassan, id., ¶ 58;
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• instructions by Manes that Ashraf-Hassan was “not to wear the
hijab or any jewelry identifying [her] religion,” id., ¶ 59; and
• a comment by Manes that “people like [Plaintiff] should go back to
where they came from.”
Id., ¶ 91 (all internal quotation marks omitted). Further, upon discovering that Ashraf-Hassan
was pregnant, Manes lectured her about condoms and birth control. Id., ¶ 63. A month later,
Manes informed her that she would be terminated at the end of her probationary period. Id., ¶
65. The Ambassador subsequently intervened, reprimanding Manes and returning Ashraf-
Hassan to her position. Id., ¶¶ 71-74. Ashraf-Hassan claims that after Manes was reprimanded,
she continued to exclude her from meetings and treated her differently from her colleagues. Id.,
¶¶ 76-80.
In addition to the mistreatment from Manes and her colleagues, Ashraf-Hassan claims
that she suffered similar abuse from another supervisor, Dr. Tual. See id., ¶¶ 92-115.
Specifically, she claims Tual
• “made comments about how much he disliked Chinese, Indian, and Pakistani
people,” id., ¶ 93;
• “asked Ms. Ashraf-Hassan why she was not looking for a job at the Pakistani
Embassy because she might be better there,” id., ¶ 94;
• questioned Ashraf-Hassan’s status “as a French national because she was a
Pakistani and a Muslim and that it would be better for her to work at the Pakistani
Embassy,” id., ¶ 95;
• referred to Ashraf-Hassan and her children as “dogs,” id., ¶ 98;
• sent an email in January 2007 referring to Ashraf-Hassan as a “Pashtoun,” “a
derogatory term to refer to the Taliban,” id., ¶¶ 105-107, and asserted that she
should be removed from her duties, have her contract terminated, and she should
be “stuffed in a ‘cagibi’” – “slang for a ‘rat-hole,’” id., ¶¶ 109-110; and
• ultimately removed her to the smallest office in the Embassy (a “cagibi”), with no
computer or telephone access.
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Id., ¶¶ 113-14 (some internal quotation marks omitted).
In November 2006, on a visit to France, Ashraf-Hassan raised these issues with staff at
the French Ministry of Foreign Affairs. Id., ¶¶ 117-123. On December 22, 2006, she received a
letter stating that her contract would not be renewed and would end on January 31, 2007. Id.,
¶ 124. Her last day of work was January 24, 2007. Id. At the time of her termination, the
Embassy did not provide her with any reasons as to why her employment was ending. Id., ¶ 131.
On July 13, 2007, Ashraf-Hassan filed a charge of discrimination with the Equal
Employment Opportunity Commission’s Washington Field Office, and on January 31, 2011, she
received her right to sue letter from the EEOC. Id., ¶¶ 8, 9. She subsequently filed this suit
against the Embassy of France, asserting eight causes of action under Title VII: harassment on
the basis of national origin (Count I), race (Count II), religion (Count III), and pregnancy (Count
VIII); and unlawful termination on the basis of national origin (Count IV), race (Count V),
religion (Count VI), and retaliation (Count VII). Conceding that immunity does not protect it
here, Mot. at 1, the Embassy has now filed a Motion to Dismiss under Rule 12(b)(6).
II. Legal Standard
In evaluating Defendant’s Motion to Dismiss, the Court must “treat the complaint’s
factual allegations as true . . . and must grant plaintiff ‘the benefit of all inferences that can be
derived from the facts alleged.’” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C.
Cir. 2000) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)) (internal
citation omitted); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir.
2005). The Court need not accept as true, however, “a legal conclusion couched as a factual
allegation,” nor an inference unsupported by the facts set forth in the Complaint. Trudeau v.
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Fed. Trade Comm’n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S.
265, 286 (1986)) (internal quotation marks omitted).
Rule 12(b)(6) provides for the dismissal of an action where a complaint fails to “state a
claim upon which relief can be granted.” Although the notice-pleading rules are “not meant to
impose a great burden on a plaintiff,” Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005),
and “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion, Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), “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, 129 S. Ct. 1937, 1949 (2009) (internal quotation omitted). Plaintiff must put forth “factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. Though a plaintiff may survive a 12(b)(6) motion even if “recovery is
very remote and unlikely,” Twombly, 550 U.S. at 556 (citing Scheuer v. Rhodes, 416 U.S. 232,
236 (1974)), the facts alleged in the complaint “must be enough to raise a right to relief above
the speculative level.” Id. at 555.
III. Analysis
In its Motion, Defendant asserts both procedural and substantive attacks on Plaintiff’s
Title VII claims. The former challenge Plaintiff’s failure to administratively exhaust her claims,
as well as defects in service. The latter challenge the merits of Plaintiff’s claims, arguing that 1)
she “has not offered any evidence in her Complaint to show that the Embassy knew or should
have known of Dr. Tual’s hostile conduct and therefore failed to stop it,” Mot. at 18; and 2) she
“failed to provide any evidence to show that the Embassy’s legitimate reason to eliminate her
position was pretextual.” Id. at 20.
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Addressing each argument in turn, the Court first finds that Plaintiff failed to file her
EEO charge for her wrongful-termination claims within the required 180-day presentment
window, thus requiring their dismissal; her hostile-work-environment claims, on the other hand,
were timely filed and thus survive this Motion. Additionally, the Court finds that neither of
Defendant’s service arguments is availing. As to Defendant’s challenges to the merits, the Court
rejects without prejudice both arguments as it would be premature to engage in such fact-
intensive inquiries before Plaintiff has been afforded an opportunity in discovery to develop her
evidentiary support.
A. Procedural Challenges
1. Exhaustion
Title VII complainants may file an action in federal court only after exhausting their
administrative remedies. See Payne v. Salazar, 619 F.3d 56, 65 (D.C. Cir. 2010); Gupta v.
Northrop Grumman Corp., 462 F. Supp. 2d 56, 58 (D.D.C. 2006). Title VII’s exhaustion
requirements, however, are not jurisdictional. Artis v. Bernanke, 630 F.3d 1031, 1034 n.4 (D.C.
Cir. 2011) (citing Menominee Indian Tribe of Wis. v. United States, 614 F.3d 519, 527 (D.C.
Cir. 2010)). Accordingly, a “12(b)(6) motion to dismiss for ‘failure to state a claim upon which
relief can be granted’ is the appropriate vehicle to challenge an alleged failure to exhaust”
administrative remedies under Title VII. Rosier v. Holder, 2011 WL 2516152, at *2 (D.D.C.
2011) (citing Artis, 630 F.3d at 1034 n.4). “Because untimely exhaustion of [Title VII]
administrative remedies is an affirmative defense, the defendant bears the burden of pleading and
proving it.” Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997) (citation omitted).
In ruling upon a motion to dismiss, a court may ordinarily consider only “the facts
alleged in the Complaint, documents attached as exhibits or incorporated by reference in the
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complaint, and matters about which the Court may take judicial notice.” Gustave-Schmidt v.
Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002) (citations omitted). Generally, where “matters
outside the pleadings are presented to and not excluded by the court, the motion [to dismiss]
must be treated as one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d). The Court
here, however, may rely on Plaintiff’s EEO Intake Questionnaire and her Equal Employment
Opportunity Commission charge, which she has attached to her Opposition as Exhibits 1 and 4,
without converting the motion to dismiss into one for summary judgment. See Fennell v. AARP,
770 F. Supp. 2d 118, 124 n.3 (D.D.C. 2011); Felder v. Johanns, 595 F. Supp. 2d 46, 58-59
(D.D.C. 2009) (consideration of charge of discrimination proper because, when presented with a
motion to dismiss, a court may consider “any documents attached to [the non-movant’s
pleadings] or incorporated by reference”) (citing Equal Empl. Opportunity Comm’n v. St.
Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997)). Furthermore, “[a] court may
consider an EEOC complaint and Notice of Charge without converting a motion to dismiss into a
motion for summary judgment because such records are public document[s] of which a court
may take judicial notice.” Ndondji v. InterPark Inc., 768 F. Supp. 2d 263, 272 (D.D.C. 2011)
(internal quotation marks omitted).
a. Timeliness of Administrative Exhaustion
In contending that Plaintiff failed to exhaust her administrative remedies, Defendant
begins with an argument about timeliness. The timeliness of Plaintiff’s exhaustion here revolves
around two central questions. Defendant first argues that “Plaintiff’s entire Complaint should be
dismissed for failure to file the EEOC charges within 180 days of the Embassy’s last
employment decision.” See Mot. at 6. Plaintiff responds that a 300-day window – and not a
180-day window – governs the date by which she was required to file a charge of discrimination
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with the EEOC; as a result, she contends, all claims were timely filed. See Opp. at 3-6. After
resolving this dispute, the Court must next determine when the alleged discriminatory practices –
i.e., Plaintiff’s termination and the hostile work environment – took place in order to calculate
the deadline for filing.
An individual seeking to challenge an unlawful employment practice under Title VII
must file a charge with the EEOC within 180 days “after the alleged unlawful employment
practice occurred.” 42 U.S.C. § 2000e–5(e)(1). This window, however, may be extended to 300
days where a worksharing agreement exists between the EEOC and a state or local Fair
Employment Practices (FEP) agency. Carter v. George Washington Univ., 387 F.3d 872, 879
(D.C. Cir. 2004) (citing 29 C.F.R. § 1601.13(a)(4)(ii)(A)). As the District of Columbia Office of
Human Rights (DCOHR) has entered into such an agreement with the EEOC, Plaintiff argues
that the applicable time limitation for filing a charge of discrimination in the District of
Columbia should be extended to 300 days. See Opp. at 3. Defendant, however, contends that
the extension of the presentment window is only triggered where a plaintiff has initially
instituted proceedings with the state. See Reply at 3. Here, it argues that Plaintiff cannot invoke
the exception as she “has never sought to present her grievances before the D.C. administration
and . . . the D.C. administration has never taken jurisdiction over them.” Id.Plaintiff responds that the existence of the worksharing agreement opens the 300-day
window, regardless of whether an employee ever files a charge with the D.C. agency. See Opp.
at 3. In support of her position, Plaintiff points to a District of Columbia Court of Appeals
decision, Griffin v. Acacia Life Ins. Co., 925 A.2d 564 (D.C. 2007). In Griffin, the court found
an employee’s claims to be timely where he had filed with the EEOC within 300 days of the
unlawful employment practice, even though he had never instituted a claim with the state
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agency. Id. at 568-69. In so holding, it affirmed the Superior Court’s determination that
“‘[e]ven though plaintiff did not file a claim with the D.C. agency, claims were instituted with
the state agency on her behalf, by virtue of the work-share agreement’ . . . ‘When plaintiff filed
her claim with the EEOC, it was automatically cross-claimed with the [OHR]; therefore, plaintiff
instituted a claim with the state agency, and the 300-day filing period applies.’” Id.; see also
Tucker v. Howard Univ. Hosp., 764 F. Supp. 2d 1, 6 (D.D.C. 2011) (citing Griffin to support its
determination that plaintiffs had 300 days to file an EEOC charge, but providing no analysis as
to why such window was appropriate).
As the Court is not interpreting an issue of D.C. law, it is not bound to follow Griffin,
particularly since the D.C. Circuit has opined differently in Simpkins v. Washington Metro. Area
Transit Auth., No. 96-7188, 1997 WL 702349 (D.C. Cir. Oct. 10, 1997). In Simpkins,
admittedly an unpublished opinion without precedential value, see D.C. Cir. Rules 32.1(b)(1)(A),
36(e)(2), the D.C. Circuit reasoned that the 300-day period only applied where a party had
initiated proceedings with the state or local agency:
The Supreme Court has explained that the purpose of the longer
filing period in “deferral states” (i.e., those with a local agency
empowered to address discrimination) is “to prevent forfeiture of a
complainant’s federal rights while participating in state
proceedings.” Mohasco Corp. v. Silver, 447 U.S. 807, 821 (1980).
If the complainant is not participating in a state proceeding, then
there is no reason to extend the 180-day filing period. “To allow a
Title VII litigant the benefit of the extended limitations period
merely because she fortuitously works in a deferral state would
ignore the plain language of the statute and its legislative purpose.”
Kocian v. Getty Refining & Mktg. Co., 707 F.2d 748, 751 (3d Cir.
1983).
Id. at *3; see also Berger v. Medina Cty. Ohio Bd. of Cty. Comm’rs, 295 Fed. Appx. 42, 46 (6th
Cir. 2008) (300-day limitations period did not apply where aggrieved party did not first file with
appropriate Tennessee agency); Tate v. Shelby Cty. Road Dept., No. 93-5358, 1994 WL 91687,
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at *1 (6th Cir. March 22, 1994) (180-day filing period applied and plaintiff’s charge was
untimely where plaintiff failed to file charges with state agency). This seems the more
convincing rationale. Where Plaintiff has failed to pursue her grievances through the state’s
administrative processes, as here, she cannot invoke the longer presentment window and must
file her claims within the 180-day window to be timely.
The Court must next determine the dates of the alleged unlawful employment practices so
that it may apply the 180-day window and resolve the timeliness question. In Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101 (2002), the Supreme Court provided guidance on what
constitutes an “unlawful employment practice” and when such an act can be understood to have
“occurred,” both for discrete discriminatory acts and hostile-work-environment claims. Id. at
110. For purposes of timeliness, discrete discriminatory acts occur on the day that they
“happened.” Id. In the event of an employee’s discharge, it is the “date that the parties
understood the termination to be final.” Id. at 111. Plaintiff claims that she received a letter on
December 22, 2006, “stating that her contract would not be renewed and would end on January
31, 2007.” See Am. Compl., ¶ 124. Defendant, conversely, asserts that Plaintiff was verbally
informed of the decision on December 14, 2006. See Mot. at 7. In either event, Plaintiff’s
completion of the EEOC Intake Questionnaire on July 6, 2007, see Opp., Exh. 1 (EEO Intake
Questionnaire), falls outside of the 180-day window. While Plaintiff’s last day of work at the
Embassy was January 24, 2007, Am. Compl., ¶ 124 – a date that would make her discharge
claim timely – this date cannot be considered as the date that the discriminatory act “occurred,”
since both parties understood the termination to be final in December 2006. See Delaware State
College v. Ricks, 449 U.S. 250, 258 (1980) (alleged discrimination occurred and statute-of-
limitations period commenced at time that termination was decided and communicated to
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employee, not at “the time at which the consequences of the acts became most painful” (internal
citations omitted)); Chardon v. Fernandez, 454 U.S. 6, 8 (1981) (limitations period began to run
when employees received letters notifying them of decision to terminate their employment, not
on date on which employment terminated); Rattigan v. Gonzales, 503 F. Supp. 2d 56, 69-70
(D.D.C. 2007) (same). Plaintiff’s termination claims must thus be dismissed.
While Plaintiff’s claims of discrimination based on her termination may be untimely, her
claims based on a hostile-work-environment theory are not. As the Supreme Court noted in
Morgan, hostile-work-environment claims by “their very nature involve[] repeated conduct.” Id.
at 115. For purposes of timeliness, the “unlawful employment practice” “cannot be said to occur
on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to
discrete acts, a single act of harassment may not be actionable on its own.” Id. Because a
hostile-work-environment claim is composed of a series of separate acts that collectively
constitute one “unlawful employment practice,”
[t]he timely filing provision only requires that a Title VII plaintiff
file a charge within a certain number of days after the unlawful
practice happened. It does not matter, for purposes of the statute,
that some of the component acts of the hostile work environment
fall outside the statutory time period. Provided that an act
contributing to the claim occurs within the filing period, the entire
time period of the hostile environment may be considered by a
court for the purposes of determining liability.
Id. at 117 (emphasis added). Because Plaintiff need only file a charge within 180 days “of any
act that is part of the hostile work environment,” id. at 118 (emphasis added), the Court finds that
the allegations set forth in Plaintiff’s Intake Questionnaire of July 6, 2007, are sufficient. See
Opp., Exh. 1 (Intake Questionnaire).
In the intake form, Plaintiff describes discrimination spanning a five-year period,
including two specific acts of discrimination in 2007. Id. These acts include being “compared to
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a terrorist” by colleagues and receiving “racial comments” in an email from her supervisor in
January of 2007. Id. Although the exact date in January is not mentioned, because Defendant
bears the burden to prove untimeliness and has not alleged that these comments occurred more
than 180 days before her July filing, the Court finds that claims based on this theory are timely.
The Court will thus dismiss Plaintiff’s discrimination claims based on her termination as
untimely (Counts IV, V, VI & VII), but find that her claims based on a hostile work environment
were timely filed.
b. Scope of Exhaustion
Defendant next raises two other exhaustion arguments in its Motion, which it asserts
should limit the scope of Plaintiff’s claims. Specifically, the Embassy maintains that Plaintiff
failed to put it on notice of 1) claims based on the conduct of employees other than Tual, and 2) a
claim that it retaliated against Plaintiff. See Mot. at 11. In its Reply, Defendant mentions an
additional exhaustion argument for the first time, challenging Plaintiff’s pregnancy-based claim
(Count VIII). See Reply at 8. The Court will address each exhaustion argument in turn.
When an individual files suit in federal court following the exhaustion of her
administrative remedies, her claims are limited to those that are “like or reasonably related to the
allegations of the charge and growing out of such allegations,” so the agency may have fair
notice of the claims against it. Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995)
(internal citation omitted). To be “like or reasonably related to” claims that have been
exhausted, they must “‘[a]t a minimum . . . arise from the administrative investigation that can
reasonably be expected to follow the charge of discrimination.’” Payne v. Salazar, 619 F.3d 56,
65 (D.C. Cir. 2010) (internal citations omitted). A party may also present claims that “arose out
of same basis for discrimination alleged” in the administrative proceedings below. Jones v.
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Billington, 12 F. Supp. 2d 1, 7 (D.D.C. 1997). In Jones, the court determined that a hostile-
work-environment claim was properly before the court, even though the administrative claims
did not formally allege the charge, as “[t]he hostile work environment alleged in the complaint is
not based on conduct that is different from that alleged in the EEOC charge. Furthermore, the
basis for the hostile-work-environment is race, which is the same basis alleged in the EEOC
charge.” Id.Defendant first claims that Plaintiff failed to “put the Embassy on notice that she was
being harassed by employees other than Dr. Tual.” See Mot. at 13. Plaintiff, however, points
out that her EEO Charge clearly indicated that the discrimination she faced was not limited to
Tual. See Opp. at 12. The Charge specifically stated that she had “endured various
discriminatory acts by my colleagues and supervisors who subjected me to work in a hostile
environment because of my race, color, national origin and religion” and that “colleagues make
fun of my religion and national origin by comparing me to a terrorist.” See Opp., Exh. 4 (EEO
Charge) (emphases added). While the Charge identifies only Tual by name, the Court finds that
it nonetheless provided Defendant with sufficient notice that Plaintiff faced discrimination from
her colleagues and supervisors, not just Tual.
Defendant also argues that Plaintiff failed to give notice in her EEO Charge of any
retaliatory-termination claim (Count VII). See Mot. at 13. Plaintiff explains that her employer
was on notice that she was alleging a retaliatory discharge based on a January 24, 2007, letter she
sent to the French Ambassador. Mot., Exh. 3 (“Letter to the Ambassador”). The Court however,
need not address this argument, as it has already found all termination claims to be untimely.
See Section III(A)(1)(a), supra. In other words, this claim has already been dismissed on other
grounds.
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Defendant’s final exhaustion argument challenging Plaintiff’s pregnancy-based hostile-
work-environment claim (Count VIII) is raised for the first time in its Reply. See Reply at 8.
Nowhere in its Motion does Defendant make this argument, despite the fact that it asserts similar
points with regard to Plaintiff’s retaliation claim. See Mot. at 11-18. As the D.C. Circuit has
consistently held, the Court should not address arguments raised for the first time in a party’s
reply. See, e.g., Am. Wildlands v. Kempthorne, No. 07-5179, 2008 WL 2651091, at *8 (D.C.
Cir. July 8, 2008) (“We need not consider this argument because plaintiffs . . . raised it for the
first time in their reply brief.”). Therefore, the Court will not address Defendant’s exhaustion
argument with regard to Plaintiff’s pregnancy-based claim.
2. Service
Defendant’s remaining procedural objections relate to service, and they cover two areas:
service of the EEOC charges and service of the Complaint. In challenging the timely service of
the EEOC charges, Defendant contends that Plaintiff failed to serve charges on the Embassy
within ten days of the filing, as required by 42 U.S.C. § 2000e-5(e). See Mot. at 9. Plaintiff
rejoins that it is the EEOC’s duty to serve the employer, not the Plaintiff’s; as such, “it would be
contrary to the remedial purposes of Title VII and federal courts” to penalize Plaintiff where it is
“the EEOC, and not Plaintiff, [who] failed to comply with its statutorily mandated duties.” See
Opp. at 6. As Defendant provides no authority for its argument in the Motion and fails to
respond to Plaintiff’s point in its Reply, the Court will deem it abandoned at least for now.
Defendant further challenges the timeliness of the service of the Complaint. While
acknowledging that Federal Rule of Civil Procedure 4(m), which voids a summons if not served
within 120 days, does not apply where Defendant (as here) is an agency of a foreign state, the
Embassy nonetheless argues that the summons and the Complaint must be served “within a
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reasonable amount of time.” See Mot. at 11. It further maintains that 120 days is a reasonable
limit “since the method of service did not present any unusual difficulties.” Id. Plaintiff
responds that it served the Amended Complaint within the 120-day deadline and that even if the
Court were to determine that service of the original Complaint was outside of the 120-day
window, that service was reasonable as Defendant was not harmed in any way by the delay. See
Opp. at 7-11. The Court agrees with Plaintiff.
As both parties recognize, the 120-day window for service does not apply to Defendant
given its status as a foreign entity. Mot. at 10; Opp. at 7. Instead, the Court should apply a
standard of “flexible due diligence.” See Overseas Partners, Inc., v. Progen Musavirlik ve
Yonetim Hizmetleri, Ltd. Sikerti, et al., 15 F. Supp. 2d 47, 49-50 (D.D.C. 1998) (recognizing
“flexible due diligence” standard for determining whether service of process on foreign national
was timely); James v. Rutil, No. 95-530, 1997 WL 151174, at *5 (S.D. Ind. March 14, 2007)
(elaborating on standard as “measured by the reasonableness of Plaintiff’s effort as well as the
prejudice to the defendant from any delay”). Plaintiff here attempted to serve defendant through
its representative, who refused service. See Opp. at 9-11. Eventually, Plaintiff served Defendant
with the Amended Complaint within 120 days of its filing and within seven months of the filing
of the original Complaint, see Opp. at 7, a timeframe that the court does not find unreasonable.
Further, as Defendant has not shown any prejudice from the delay, the Court finds that service
here meets the “flexible due diligence” standard.
B. Merits Challenges
In addition to its procedural challenges, the Embassy also asserts two arguments that
address the merits of Plaintiff’s suit. Defendant styles both arguments as appropriate for review
under a motion-to-dismiss standard, Mot. at 18-25; however, as Plaintiff correctly observes, both
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involve fact-based inquiries that are more appropriately resolved at the summary judgment stage.
See Opp. at 14. Despite Defendant’s contention that its challenges can be resolved based solely
on allegations in the Complaint, its very language contradicts this claim. See, e.g., Mot. at 20
(“Plaintiff failed to provide any evidence to show that the Embassy’s legitimate reason to
eliminate her position was pretextual.”) (emphasis added). A decision now would thus be
premature.
Defendant first argues that in order to hold the Embassy responsible for the conduct of
one of its employees, Plaintiff must “allege evidence showing that the Embassy knew about the
harassing conduct of Dr. Tual and that it failed to stop it.” See Mot. at 18. The Court agrees
with Plaintiff that it would be unduly hasty to grant summary judgment before she has been
afforded any opportunity to develop facts supporting her claim of discrimination. See, e.g.,
Gordon v. Napolitano, 786 F. Supp. 2d 82, 86 (D.D.C. 2011) (reasoning that plaintiff’s
retaliation claims “are certainly thin and may well not survive a future summary judgment
motion. Nevertheless, to dismiss them or convert this into a motion for summary judgment is
premature at this time because Plaintiff has not had the benefit of any discovery to bolster her
claims.”); McWay v. LaHood, 269 F.R.D. 35, 37-38 (D.D.C. 2010) (“[T]he D.C. Circuit has
directed that because it is difficult for a plaintiff to establish proof of discrimination, the court
should view [pre-discovery] summary-judgment motions . . . with special caution.”) (citing Aka
v. Washington Hosp. Ctr., 116 F.3d 876, 879-80 (D.C. Cir. 1997), overturned on other grounds,
156 F.3d 1284 (D.C. Cir. 1998) (en banc)); Gray v. Universal Serv. Admin. Co., 581 F. Supp. 2d
47, 56 (D.D.C. 2008) (recognizing that summary judgment “must be approached with special
caution” in discrimination cases) (internal citations omitted). As the Court agrees that Plaintiff is
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entitled to conduct discovery, it will deny this part of Defendant’s Motion without prejudice to
be renewed subsequently.
Defendant’s second merits-based argument challenges Plaintiff’s failure to provide
evidence to show that the Embassy’s proffered legitimate reason to eliminate her position was
pretextual. See Mot. at 20-25. Plaintiff responds with the same point it made to the prior merits
challenge, contending that such arguments are premature prior to any discovery. See Opp. at 14.
For the reasons just mentioned, the Court finds summary judgment at this stage is not warranted.
See also Richardson v. Gutierrez, 477 F. Supp. 2d 22, 31 (D.D.C. 2007) (rejecting similar pretext
argument as premature as “the question of pretext ‘is necessarily fact intensive and granting a
motion for summary judgment on this issue prior to providing the parties with any opportunity
for discovery is clearly contrary to this Circuit’s precedent’” (internal citations omitted)); Amiri
v. Hilton Washington Hotel, 360 F. Supp. 2d 38, 42 (D.D.C. 2003) (same). Once discovery has
taken place, Defendant is certainly free to file a summary judgment motion that repeats these (or
adds new) bases for judgment.
IV. Conclusion
For the foregoing reasons, the Court will issue a contemporaneous Order that will grant
Defendant’s Motion to Dismiss Plaintiff’s untimely termination claims (Counts IV, V, VI & VII)
and otherwise deny Defendant’s Motion as to the remaining claims (Counts I, II, III & VIII).
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: July 20, 2012
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