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
Shortly after September 11, 2001, Plaintiff Saima Ashraf-Hassan arrived in the United
States and began working for the French Embassy. Ashraf-Hassan was born in Pakistan but is a
French citizen who studied law at the Sorbonne. She is also a practicing Muslim. She brought
this suit alleging that the Embassy subjected her to a hostile work environment on account of her
national origin, race, religion, and pregnancy, all in violation of Title VII. Specifically, she
recounts that she was called a terrorist and a “Pashtoun,” which she regards as an ethnic slur; she
and her children were referred to as dogs; she was admonished not to “wear any headscarves or
wear any religious signs,” despite never having done so at work; she was told that she should not
have a child and lectured on the use of birth control; she was temporarily fired for being
pregnant; she was terminated and was replaced by a French man; and, during her last weeks of
employment, she was relegated to the intern room, forced to stand in the hallway for long
stretches of time waiting for her supervisor to give her access to that room, and had her phone
and email access taken away. Ashraf-Hassan’s supervisors were allegedly responsible for these
acts, all of which were allegedly motivated by discriminatory animus.
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The Embassy now moves for summary judgment, claiming that, based on the evidence
presented thus far, no reasonable jury would find that these acts created a hostile work
environment. Alternatively, it argues that it should not be held vicariously liable for the actions
of its employees. Although plaintiffs must meet a high bar to prove a hostile-work-environment
claim, the evidence presented by Ashraf-Hassan is extreme enough to overcome summary
judgment and merit a trial. Furthermore, because the harassment and her termination were
carried out by her supervisors, who presumptively act on the Embassy’s behalf, Defendant
cannot avoid liability at this stage of litigation. The Motion for Summary Judgment will thus be
denied. Ashraf-Hassan also separately moves for an adverse inference based on the alleged
destruction of evidence, but the Court need not resolve that issue at this time.
I. Background
Many of the facts in this case are disputed. On a motion for summary judgment, the
Court must take the evidence of the non-movant – here, Plaintiff – as true and must view the
facts in the light most favorable to her. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). In setting forth these facts, therefore, the Court does not endorse them as true; instead,
they are simply allegations for which Plaintiff provides record support.
Ashraf-Hassan, a former employee of the French Embassy in Washington, D.C., is a
French citizen who was born in Pakistan. See Mot., Exh. 3 (Deposition of Saima Ashraf-Hassan,
Part I) at 10:1-21, 217:11-12, 221:8-20. She is also a practicing Muslim. See id. at 31:7-39:7.
She originally came to the United States to complete research for her Ph.D. in law, which she
was pursuing at the Sorbonne. See id. at 10:1-21. After arriving in Washington, Ashraf-Hassan
obtained an internship with the French Embassy, which later led to an offer of full-time
employment. See id. at 10:1-11:3. From February 2002 to January 2007, she worked for the
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Embassy. See id. at 10:1-12:17, 220:11-16. Her duties included supervising the Embassy’s
internship-placement program and coordinating the Embassy’s partnership with the French-
American Cultural Exchange (FACE) in New York. See Mot., Exh. 2 (Pl. Resp. to Int.) at 23.
During her five years of employment with the Embassy, Ashraf-Hassan alleges that she
was subjected to discrimination on the basis of national origin, race, religion, and pregnancy.
See id. at 6-12; see also Am. Compl., ¶¶ 142-75. Primarily, she claims that she was subjected to
a hostile work environment permeated by harassment so severe or pervasive as to alter the
conditions of her employment.
According to Ashraf-Hassan, the hostile treatment began almost the moment she arrived
at the Embassy. Her supervisor, Chantal Manes, often “ask[ed] Plaintiff questions regarding her
religion, race, and national origin,” and commented on the fact that she was from the same
region as the 9/11 terrorists – even though Ashraf-Hassan grew up in France. See Pl. Resp. to
Int. at 6. When Manes, who oversaw the internship-placement program, read about a group of
Pakistani terrorists who were arrested in New York, she waved a newspaper at Ashraf-Hassan
and stated that “her people had done it again.” Id. Manes also repeatedly instructed her that “she
should not wear any headscarves or wear any religious signs, symbols or jewelry,” despite the
fact that Plaintiff had never done so inside the Embassy. Id. at 7.
In March or April of 2002, Ashraf-Hassan discovered that she was pregnant and
mentioned the pregnancy to a colleague and perhaps also to Manes. See id.; see also Mot., Exh.
18 (Letter to Secretary General). Shortly thereafter, Manes allegedly summoned Plaintiff to her
office and began “lecturing [her] for an hour” about the pregnancy and “yelling at [her] like [she]
was a criminal.” Ashraf-Hassan Dep., Part I at 238:16-21. Ashraf-Hassan recollects Manes
scolding, “You should not have this baby. You should have planned it. You should not accept a
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job if you’re planning [to have] a baby. You should take condoms, pills.” Id. at 237:18-21.
Manes then fired Ashraf-Hassan for failing to “earn [her] trust.” See Mot., Exh. 4 (Deposition of
Saima Ashraf-Hassan, Part II) at 13:13. Two white, French women in the office were also
pregnant at the time; neither was lectured or fired in the wake of her pregnancy. See Pl. Resp. to
Int. at 7; Ashraf-Hassan Dep., Part I at 248:1-9.
Ashraf-Hassan wrote letters to the Ambassador and Secretary General appealing Manes’s
decision. See Pl. Resp. to Int. at 7. A few days later, the Ambassador’s assistant contacted
Ashraf-Hassan and asked her to return to work. See id.; Ashraf-Hassan Dep., Part I at 140:3-19.
The Ambassador himself later apologized, confirming that she should not have been fired. See
Ashraf-Hassan Dep., Part I at 140:3-19. The Embassy does not dispute that Ashraf-Hassan was
fired, but it claims she was terminated for failure to disclose her pregnancy to Manes – for a lack
of candor – rather than as a result of discrimination. See Mot. at 4-7, 19-21.
As Ashraf-Hassan recounts, after she returned to work, she was treated differently from
Manes’s other employees. She “was frequently informed of meetings after they had begun”; was
“required to fulfill other employees’ responsibilities while they were on vacation” or lunch,
while no one did the same for her; “was denied vacation days even though she had vacation days
left”; and was not welcome at events or annual meetings that all other employees attended. See
Pl. Resp. to Int. at 7-8. When a colleague spotted Ashraf-Hassan walking down the hall and
commented to Manes, “Now we hire terrorists,” Plaintiff recalls Manes smiling and nodding, as
if she were not even there. Id. at 8. After this incident, she “spent hours . . . crying in [her]
office.” Ashraf-Hassan Dep., Part I at 229:18.
In October of 2004, Ashraf-Hassan began to work as an assistant to Christian Tual, who
oversaw the FACE cultural-exchange program; this was in addition to her duties under Manes.
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See Pl. Resp. to Int. at 8. Tual, as Ashraf-Hassan describes, created a racially charged work
environment. He allegedly “told Plaintiff that he did not like Pakistanis, Indians, and Chinese.”
Id. at 9. He also “asked Plaintiff on several occasions why she was not working at the Pakistani
Embassy and told her that she would be better off there.” Id. In addition, Ashraf-Hassan claims
that Tual referred to her and her children as “dogs.” See Ashraf-Hassan Dep., Part II at 141:11-
14.
Eventually, Robby Judes, who is black, replaced Manes as Ashraf-Hassan’s primary
supervisor. See Pl. Resp. to Int. at 9. Judes and Tual had a difficult working relationship; Tual
allegedly “did not believe Mr. Judes was qualified” for the job “because of Mr. Judes[’s] race.”
Id. Distraught by the mounting tension at work, her low salary, and the discriminatory work
environment, Ashraf-Hassan sought help. In the spring of 2005, she recalls that she contacted
Virginie Pont, a representative of the Ministry of Foreign Affairs, and discussed the situation.
See id. at 8. Nothing came of that meeting. In September 2006, Ashraf-Hassan wrote to Kareen
Rispal, Tual’s supervisor in New York, to complain about her working conditions. Id. at 9; see
Mot., Exh. 21 (Letter to Kareen Rispal) at 2-9. Again, nothing was done. See Pl. Resp. to Int. at
9.
While in France in November 2006, Ashraf-Hassan also recalls having spoken to Phillipe
Righini and Roger Wilhelm at the Ministry of Foreign Affairs, who then contacted Rispal in
New York. Id. at 10. Rispal reached out to Tual in early December. Mot., Exh. 8 (Letters from
Christian Tual) at 2. Tual later relayed to Ashraf-Hassan that Rispal had resolved her complaints
related to salary, but he did not mention anything about discrimination. See id. Ashraf-Hassan
believes that her discrimination complaints may have trickled down to Tual and caused him to
retaliate against her. See Pl. Resp. to Int. at 10-11.
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Later in December 2006, Ashraf-Hassan found out that her contract was not being
renewed at “the discretion of Mr. Tual and Ms. Rispal.” Id. at 11. Different employees at the
Embassy gave her different reasons for why her employment was ending – some said that the
internship and exchange programs were being restructured and her position was thus being
eliminated; Tual allegedly claimed it was “because she had complained to the Ministry”; and
Judes contended “that it was due to discrimination.” Id. Ashraf-Hassan claims that the position
was not eliminated, but that she was replaced by an intern, Pierre de Souffron. See id. The
Embassy maintains that she was let go when the office was restructured. See Mot. at 15.
Plaintiff’s contract expired at the end of January 2007, and she continued to work with
Tual and Judes during her last weeks at the Embassy. See Pl. Resp. to Int. at 10-12. In early
January, Judes showed her an email from Tual that referred to her as “the Pashtoun” and
commented that “as long as the Pashtoon [sic] occupies . . . the FACE secretary office I have no
desire to have her underfoot each time I look at a file . . . . Let’s hope that her phone and
computer will be taken away from her or she will keep on wreaking havoc until she leaves and
that she will be confined in a box room for interns . . . .” Letters from Tual at 11-12. Plaintiff is
not Pashtun. See Ashraf-Hassan Dep., Part II at 130:14-15. She testified that, in this context,
she understood “Pashtoun” to mean “terrorist” because Pashtuns are an ethnic group in Pakistan
often associated with the Taliban. See Pl. Resp. to Int. at 11; Ashraf-Hassan Dep., Part I at
58:11-59:3. Moreover, the French word that Tual used for “box room” or storage room –
“cagibi” – means a “rat hole,” according to Ashraf-Hassan. Ashraf-Hassan Dep., Part I at 58:11-
19.
In the end, Ashraf-Hassan was, in fact, confined to the small office typically used for
interns, and her phone and computer privileges were taken away. See Pl. Resp. to Int. at 12. No
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one disputes that fact or the authenticity of Tual’s email – although Defendants claim that her
office and phone number were reassigned because she misinformed applicants that the internship
program might be ending rather than being restructured. See id.; Mot. at 24-25. Ashraf-Hassan,
of course, claims that the demotion was discriminatory. By her account, she had to “ask [Tual’s]
permission each day before settling in the smaller office” and “would wait in front of his office
to request permission” for long periods of time, even when he was out of the office and there was
no one to let her into the intern room. See Pl. Resp. to Int. at 12. Throughout her last weeks of
employment, then, Ashraf-Hassan was without a permanent office, without a phone, without a
computer, and was being supervised by her own interns. See id. Her last day at the office was
January 24, 2007, and her contract expired on January 31, 2007. See id.
Toward the end of January, Ashraf-Hassan wrote to the Ambassador asking for the
termination decision to be reconsidered and to union representatives in France seeking help. See
Mot., Exh. 22 (Email of Jan. 30, 2007); ECF No. 16-3 (Letter to Ambassador). When neither
approach bore fruit, she began discussions with the Equal Employment Opportunity
Commission’s Washington Field Office. See ECF No. 14-1 (EEOC Intake Questionnaire).
After receiving an EEOC right-to-sue letter, she 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).
In July 2012, the Court ruled that Ashraf-Hassan’s wrongful-termination claims were
barred for failure to exhaust her administrative remedies with the EEOC. The Court, however,
7
allowed her harassment claims (Counts I-III and VIII) to proceed. See Ashraf-Hassan v.
Embassy of France (Ashraf-Hassan I), 878 F. Supp. 2d 164 (D.D.C. 2012).
The Embassy now moves for summary judgment, contending that the record does not
support Plaintiff’s allegations of a hostile work environment and that, in any event, it cannot be
held liable for its employees’ actions. In addition to opposing such Motion, Ashraf-Hassan
separately moves for an adverse inference, claiming that the Embassy negligently destroyed
emails that would have shown both further discriminatory treatment and awareness of and failure
to respond to her complaints of discrimination.
II. Legal Standard
Summary judgment may be granted 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v.
Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the
substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at
895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477
U.S. at 248; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely
disputed must support the assertion” by “citing to particular parts of materials in the record” or
“showing that the materials cited do not establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P.
56(c)(1).
When a motion for summary judgment is under consideration, “[t]he evidence of the non-
movant[s] is to be believed, and all justifiable inferences are to be drawn in [their] favor.”
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Liberty Lobby, 477 U.S. at 255; see also Mastro v. PEPCO, 447 F.3d 843, 850 (D.C. Cir. 2006);
Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc). On a motion for
summary judgment, the Court must “eschew making credibility determinations or weighing the
evidence.” Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007).
The nonmoving party’s opposition, however, must consist of more than mere
unsupported allegations or denials and must be supported by affidavits, declarations, or other
competent evidence, setting forth specific facts showing that there is a genuine issue for trial.
See Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The nonmovant is
required to provide evidence that would permit a reasonable jury to find in its favor. See
Laningham v. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987).
III. Analysis
In seeking summary judgment, the Embassy contends that (1) no reasonable jury would
find the evidence in this case sufficient to constitute a hostile work environment under Title VII;
(2) Ashraf-Hassan’s testimony should not be believed; (3) Tual’s and Manes’s actions were
nondiscriminatory or the result of business necessity; and (4) even if there were a viable claim
for harassment here, the Embassy should not be held liable for the discriminatory acts of its
employees. Ashraf-Hassan, by contrast, argues that her evidence of a hostile work environment
entitles her to a trial and that the Embassy is vicariously liable for the actions of its employees.
She also moves for an adverse inference based on the destruction of Judes’s and Tual’s emails.
The Court first examines the hostile-work-environment issue and then collectively looks at the
Embassy’s other defenses.
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A. Hostile Work Environment
Title VII makes it unlawful for an employer “to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a).
Discrimination on the basis of pregnancy is considered discrimination on the basis of sex. Id.
§ 2000e(k). The Supreme Court has held that these provisions make it unlawful for an employer
to “requir[e] people to work in a discriminatorily hostile or abusive environment.” Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993).
To prevail on a hostile-work-environment claim, “a plaintiff must show that his employer
subjected him to ‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an abusive working
environment.’” Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008) (quoting Harris,
510 U.S. at 21). “To determine whether a hostile work environment exists, the court looks to the
totality of the circumstances, including the frequency of the discriminatory conduct, its severity,
its offensiveness, and whether it interferes with an employee’s work performance.” Id. at 1201
(citing Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998)). “The Supreme Court has
made it clear that ‘conduct must be extreme to amount to a change in the terms and conditions of
employment.’” George v. Leavitt, 407 F.3d 405, 416 (D.C. Cir. 2005) (quoting Faragher, 524
U.S. at 788). By adhering to these standards, the Court “ensure[s] that Title VII does not become
a general civility code” requiring courts to police “the ordinary tribulations of the workplace.”
Faragher, 524 U.S. at 788 (citation and internal quotation marks omitted).
Looking at the totality of the circumstances – and crediting Ashraf-Hassan’s account of
the relevant events, as the Court must on summary judgment – a reasonable jury could find that
10
the harassment here was “sufficiently severe or pervasive to alter the conditions of” her
employment. To begin with, the harassment was frequent enough to pervade Ashraf-Hassan’s
work environment on a regular basis. See, e.g., Aman v. Cort Furniture Rental Corp., 85 F.3d
1074, 1082 (3d Cir. 1996) (conduct severe or pervasive where managers and coworkers
repeatedly made coded racial remarks, and managers required employees to do tasks outside
their job description, yelled at them, withheld important information, refused to deal with them,
and falsely accused them of misconduct). When Manes was her primary supervisor, Ashraf-
Hassan claims that she “was frequently informed of meetings after they had begun”; was
“required to fulfill other employees’ responsibilities while they were on vacation” or lunch; “was
denied vacation days even though she had vacation days left”; and was not welcome at events or
annual meetings that all other employees attended. See Pl. Resp. to Int. at 7-8. Her account
paints a picture of frequent slights, which she reasonably believes were related to her national
origin, race, religion, pregnancy, or a combination of all four. By the end of her employment,
she was without a phone, computer, or office and had to “ask [Tual’s] permission each day
before settling in the smaller [intern] office” and “would wait in front of his office” for long
periods of time “to request permission” to enter the intern room. See Pl. Resp. to Int. at 12.
This, too, according to Ashraf-Hassan, was because of her protected traits, and this also
establishes a level of frequency sufficient to change “the terms and conditions of” her
employment. George, 407 F.3d at 416.
In addition, several of the incidents Ashraf-Hassan recounts were severe and offensive.
Although Title VII is not meant to act as “a general civility code,” this Court has taken the use of
racial epithets by supervisors quite seriously. See Ayissi-Etoh v. Fannie Mae, 712 F.3d 572,
577-78 (D.C. Cir. 2013) (use of racial epithet by supervisor may be particularly severe); see also
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Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001) (same); Rodgers v. Western-
Southern Life Insurance Co., 12 F.3d 668, 675 (7th Cir. 1993) (same). Here, Tual – who Ashraf-
Hassan alleges supervised her work – referred to her multiple times as “the Pashtoun,” an ethnic
slur that she believes equated her with the Taliban. Letters from Tual at 11-12; see Pl. Resp. to
Int. at 11; Ashraf-Hassan Dep., Part I at 58:11-59:3. In addition, when a co-worker commented
“now we hire terrorists” based on Ashraf-Hassan’s presence in the office, her supervisor Manes
actively affirmed the sentiment. See Pl. Resp. to Int. at 8. When terrorists were captured in the
United States, Manes waved a newspaper and claimed Ashraf-Hassan’s “people had done it
again.” See id. at 6. And, of course, Ashraf-Hassan claims that Tual referred to her and her
children as “dogs.” See Ashraf-Hassan Dep., Part II at 141:11-14. Whether targeted at
Plaintiff’s national origin, race, religion, or all three, these incidents would all likely have had a
severe impact on her work environment. Add to the mix Manes’s lecture on why Ashraf-Hassan
“should not have [her] baby” and should have used “condoms” or “pills,” and you have
discriminatory conduct that is both severe and offensive. Ashraf-Hassan Dep., Part I at 237:18-
21.
Finally, the conduct alleged here also “interfere[d] with [Ashraf-Hassan’s] work
performance.” Baloch, 550 F.3d at 1201. Specifically, at least two of Defendant’s actions
deprived Ashraf-Hassan of her ability to do her job. When Manes fired her, it obviously affected
Ashraf-Hassan’s work performance: she could do no work while she was gone. And when Tual
moved her to the intern room, took away her phone, and curtailed her email access, it also
undermined her efforts to perform. That action literally changed “the terms and conditions of
[her] employment.” George, 407 F.3d at 416. She was, in essence, demoted to intern status for
the last several weeks of work.
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While mindful that a single, isolated incident of offensive behavior generally does not
create a hostile work environment, the Court finds that Plaintiff has proved much more here.
See, e.g., Faragher, 524 U.S. at 788 (“isolated incidents (unless extremely serious) will not
amount to” a hostile work environment); Stewart v. Evans, 275 F.3d 1126, 1134 (D.C. Cir. 2002)
(“Except in extreme circumstances, courts have refused to hold that one incident is so severe to
constitute a hostile work environment. Even a few isolated incidents of offensive conduct do not
amount to actionable harassment.”) (citation omitted). The conduct here was frequent, severe,
and offensive, and it affected Ashraf-Hassan’s performance. Cf. Baloch, 550 F.3d at 1201. A
reasonable jury, accordingly, could find the conduct so “extreme [as] to amount to a change in
the terms and conditions of employment.’” George, 407 F.3d at 416.
B. Embassy’s Defenses
Defendant musters several counter-arguments as to why the evidence should not be
credited or regarded as discriminatory and why the Embassy should not be held liable. Each
contention, however, is ultimately flawed.
1. Credibility
The Embassy spends most of its brief arguing that Ashraf-Hassan’s allegations are not
credible because her accounts of some details of these episodes have varied over time. On a
motion for summary judgment, however, the Court may not make “credibility determinations” or
“weigh[] the evidence.” Czekalski, 475 F.3d at 363. That burden is ultimately borne by the
finder of fact. Rather, when a motion for summary judgment is under consideration, “[t]he
evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in
[her] favor.” Liberty Lobby, 477 U.S. at 255. Here, Plaintiff has offered competent evidence to
support each of her allegations – namely, her deposition testimony and answers to
13
interrogatories, as well as several letters and emails. The Court may not question the veracity of
that evidence at this juncture, but must accept all of Ashraf-Hassan’s testimony as true.
That is not to say that the Court, hypothetically, must ignore inconsistencies between, for
example, Plaintiff’s testimony and a hard copy of a letter she is describing. The inconsistencies
the Embassy points to, however, are not material to this case – that is, they do not prevent
Ashraf-Hassan from surviving this Motion. See Liberty Lobby, 477 U.S. at 248. Those details
include the exact date Ashraf-Hassan discovered she was pregnant; why exactly the Ambassador
claimed her position was terminated; on what date she first read Tual’s email calling her a
“Pashtoun”; and whether or not she commented on revisions to the Embassy’s employee
handbook, which described how to report discrimination. None of these inconsistencies
contradicts the fact that, for example, she was lectured on the use of birth control, essentially
demoted and then ultimately terminated, or referred to as a “Pashtoun” and a terrorist. In other
words, any inconsistency that the Embassy identifies would not change the Court’s decision that
this case must be resolved at trial.
2. Business Necessity
The Embassy also contends that Tual’s email alone is not enough to create a hostile work
environment and that, in any event, his actions were the result of business necessity. See Brady
v. Office of Sergeant at Arms, 520 F.3d 490, 496 (D.C. Cir. 2008) (employer’s unrebutted non-
discriminatory reason for employment action may merit summary judgment). As the Court has
already noted, however, there is much more evidence of discrimination and hostility here than
Tual’s email or even his particular actions. In other words, even if Tual’s reasons for shutting
Ashraf-Hassan in an intern room were race-neutral – i.e., even if he truly thought she was
harming the internship program by answering the phone in her last few weeks of work – the
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remaining evidence in this case would still suffice to overcome a motion for summary judgment.
In addition, Tual’s reason was rebutted. Plaintiff has provided sufficient evidence for a jury to
determine that his decision was based on animus, not business necessity.
The Embassy makes a similar argument about Plaintiff’s termination in 2002, claiming
that Manes did not fire her because she was pregnant, but rather for the gender-neutral reason of
failing to “earn [her] trust.” See Ashraf-Hassan Dep., Part II at 13:13. The evidence is
sufficient, however, for a reasonable jury to conclude that the termination occurred because of
Ashraf-Hassan’s pregnancy, and, in any event, the slew of other harassing incidents would still
be sufficient to preclude summary judgment here.
3. Vicarious Liability
Finally, the Embassy maintains that it should not be vicariously liable for the hostile
work environment created by Tual and Manes – that is, it should not be legally responsible for its
employees’ actions. When an employee is harassed by a co-worker, she must prove that the
employer was at least negligent in not preventing or correcting the harassment for the employer
to be vicariously liable under Title VII. See Faragher, 524 U.S. at 789; Ayissi-Etoh, 712 F.3d at
577. When an employee is harassed by her supervisors, conversely, the supervisors are treated
as the employer’s proxy, and the employer is generally vicariously liable unless it asserts an
affirmative defense. See Faragher, 524 U.S. at 807; Ayissi-Etoh, 712 F.3d at 577-78. That
affirmative defense is available only when no tangible adverse employment action has been
taken and the employer proves: “(i) that it exercised reasonable care to prevent and promptly
correct the hostile behavior, and (ii) that the employee unreasonably failed to take advantage of
the employer’s preventive or corrective opportunities.” Ayissi-Etoh, 712 F.3d at 578; see
Faragher, 524 U.S. at 807; Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998).
15
Here, Ashraf-Hassan alleges she was harassed primarily by her supervisors, not by her
co-workers. As outlined by the Supreme Court, a supervisor is someone empowered “to take
tangible employment actions against the victim, i.e., to effect a ‘significant change in
employment status, such as hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant change in benefits.’” Vance v. Ball
State University, 133 S. Ct. 2434, 2443 (2013) (quoting Ellerth, 524 U.S. at 761). The Embassy
does not appear to dispute the fact that Manes was Ashraf-Hassan’s supervisor. See Mot. at 33.
Indeed, as Manes succeeded in firing Plaintiff for a period of time, this can hardly be gainsaid.
The Embassy contends, however, that Tual was not one of Ashraf-Hassan’s supervisors. See id.
at 32. Viewed in the light most favorable to Ashraf-Hassan, however, the evidence shows that
Tual did exercise supervisory powers over her. After all, her contract was not renewed, and she
was terminated at “the discretion of Mr. Tual and Ms. Rispal.” Pl. Resp. to Int. at 11. In
addition, she was “reassign[ed] with significantly different responsibilities” when Tual moved
her to the intern room, took away her phone, and curtailed her email access. Vance, 133 S. Ct. at
2443. She alleges, in essence, that Tual had the power to demote her during her last weeks of
employment as well as to fire her, and only a supervisor could do that. For purposes of summary
judgment, Ashraf-Hassan has provided evidence sufficient to consider Tual a supervisor.
To escape vicarious liability, then, the Embassy must prove both that it did not take any
tangible employment action against Ashraf-Hassan and that it was not negligent. See Faragher,
524 U.S. at 807; Ellerth, 524 U.S. at 765; Ayissi-Etoh, 712 F.3d at 578. The Embassy fails to
surmount the first hurdle, however, because it terminated her, which is a quintessential “tangible
employment action.” Faragher, 524 U.S. at 808. The Embassy therefore cannot escape liability
at the summary-judgment stage.
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C. Motion for an Adverse Inference
Finally, Ashraf-Hassan moves for an adverse inference based on the fact that the
Embassy, pursuant to its usual practice, destroyed Judes’s and Tual’s email accounts when they
left their jobs. See Mot. for Adverse Inference at 1-2, 6-7. Emails that may have corroborated
Plaintiff’s allegations were therefore potentially lost. See id. At this juncture, however, it would
be premature to address the issue, as the emails are not necessary to resolve the Motion for
Summary Judgment. If Ashraf-Hassan wishes to renew the Motion in limine prior to trial, she is
free to do so. For now, the Court denies the Motion for an Adverse Inference without prejudice.
IV. Conclusion
For the foregoing reasons, the Court will issue a contemporaneous Order denying
Defendant’s Motion for Summary Judgment and denying Plaintiff’s Motion for an Adverse
Inference without prejudice.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: November 19, 2013
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