Case 1:17-cv-02638-KBJ Document 45 Filed 08/23/21 Page 1 of 27 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ABLA ABDEL BASET YOUSSEF, ) ) Plaintiff, ) ) v. ) No. 17-cv-2638 (KBJ) ) EMBASSY OF THE UNITED ARAB ) EMIRATES, et al., ) ) Defendants. ) ) MEMORANDUM OPINION On January 3, 2016, Plaintiff Abla Youssef was terminated from her employment with Defendant United Arab Emirates Embassy in Washington, D.C., after almost eighteen years of service. (See Compl., ECF No. 1, ¶ 12.) Youssef had held two positions at the embassy during the course of her employment: beginning in 1998, she first worked as a secretary in the Human Resources Department of the Embassy’s Cultural Division, and then served as an administrative officer in that same department. (See id.) Youssef brings the instant claims against the Embassy and the United Arab Emirates (“UAE” and, collectively, “Defendants”), claiming that she was terminated the day before her 67th birthday because she was over the customary retirement age in the UAE (see id. ¶¶ 23–24), and that this termination amounted to discrimination on the basis of her age in violation of both the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq. (see id. ¶¶ 38–42), and the D.C. Human Rights Act (“DCHRA”), D.C. Code § 2-1401 et seq. (see id. ¶¶ 43–47). Case 1:17-cv-02638-KBJ Document 45 Filed 08/23/21 Page 2 of 27 Before this Court at present is Defendants’ motion to dismiss Youssef’s complaint (see Defs.’ Mot. to Dismiss, ECF No. 30; Defs.’ Mem. in Supp. of Mot. to Dismiss (“Defs.’ Mot.”), ECF No. 30-1), which Youssef opposes (see Pl.’s Mem. in Opp’n to Defs.’ Mot. (“Pl.’s Opp’n”), ECF No. 31-1). In their motion to dismiss, Defendants argue, first and foremost, that this Court does not have subject-matter jurisdiction to hear Youssef’s complaint, because the UAE and the Embassy enjoy sovereign immunity under the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1602 et seq., and the commercial activity exception to the FSIA does not apply to Youssef, who Defendants characterize as a UAE civil servant, insofar as she performed governmental work for the Embassy. (See Defs.’ Mot. at 14–22.)1 Defendants further maintain that Youssef has failed to state a DCHRA claim, “because at all relevant times, her workplace was located in a federal enclave[,]” such that the DCHRA is inapplicable. (Id. at 7.) For the reasons explained fully below, this Court disagrees with Defendants on both fronts: the Court concludes that the commercial activity exception to the FSIA applies to Youssef’s employment with the Embassy, and thus that the Court has subject- matter jurisdiction over Youssef’s claims. The Court also finds that Youssef has stated a plausible claim under the DCHRA, because the federal enclave doctrine is inapplicable to the District of Columbia. Accordingly, Defendants’ motion to dismiss will be DENIED. A separate Order consistent with this Memorandum Opinion will follow. 1 Page-number citations to the documents that the parties and the Court have filed refer to the page numbers that the Court’s electronic case filing system automatically assigns. 2 Case 1:17-cv-02638-KBJ Document 45 Filed 08/23/21 Page 3 of 27 I. BACKGROUND A. Factual Background2 Youssef was born in 1949 and is an Egyptian citizen. (Compl. ¶ 11.) She was employed in the Human Resources Department of the UAE Embassy’s Cultural Division, in Washington, D.C., for almost eighteen years before her employment was terminated, and during that time she allegedly worked in two different administrative capacities: her title was initially “Administrative Affairs Secretary[,]” and then, at some point, she began serving as an “Administrative Officer[.]” (See id. ¶ 12.) UAE Cultural Attaché Suaad Zayed Al Oraimi was Youssef’s supervisor during her time as an Administrative Officer. (See id. ¶ 23.) According to the complaint, six months before Youssef’s employment was terminated, Al Oraimi told Youssef that she had to leave the Embassy because she was over 65 years old. (See id. ¶¶ 21–22.) Youssef also allegedly received a letter from her supervisor on December 3, 2015, stating that she would be terminated as of January 3, 2016, the day before her 67th birthday. (See id. ¶ 23.) The complaint alleges that Al Oraimi offered Youssef the option of extending her employment until April of 2016, on the condition that Youssef sign a resignation letter, but Youssef “refused to sign a letter of resignation, since she was actually being terminated[.]” (Id. ¶ 32.) Before the end of Youssef’s employment with the Embassy, Al Oraimi allegedly required Youssef to train the younger employee who would take over Youssef’s duties. (See id. ¶ 29.) And, on January 12, 2016, nine days after her termination, Youssef allegedly received a letter from the Embassy, which 2 The facts recited herein are undisputed unless otherwise noted. They are drawn from the complaint and the various exhibits attached to the parties’ briefs, which include Youssef’s employment contracts with the UAE Embassy. 3 Case 1:17-cv-02638-KBJ Document 45 Filed 08/23/21 Page 4 of 27 confirmed that she was terminated because she was over 65 years old—since that age, according to the letter, is the customary retirement age in the UAE. (See id. ¶ 24.) Significantly for present purposes, throughout her time at the Embassy, Youssef was employed pursuant to successive one-year employment contracts, which were renewed on an annual basis. (See id. ¶¶ 17–18.) Youssef alleges that, under those agreements, she was “not entitled to UAE civil service benefits or to any other benefits, rights, or remedies provided by the laws of [the] UAE[.]” (Id. ¶ 17.) Moreover, Youssef’s June 2001 contract describes her job title as “Administrative Affairs Secretary[,]” and lists her job duties to include: “Typing all procedures related to administrative affairs” and “all purchase orders for procurement and warehouses”; “Filing and organizing employee files”; “Registering and sending the outgoing diplomatic pouch to the Ministry of Higher Education and Scientific Research”; “Registering external and internal outgoing[,]” and “external and internal incoming”; “Receiving and registering all bounced and returned checks from the receptionist and handing them to the Financial Affairs Department”; “Any assignments by the Cultural Attaché”; and “Any other duties assigned thereto.” (Ex. D to Defs.’ Mot. (“2001 Contract”), ECF No. 30-6, at 8.)3 3 Defendants attached Youssef’s 2001 and 2011 employment contracts as exhibits to their motion to dismiss. This Court can rely on those documents at the motion to dismiss stage, because the Court construes Defendants’ FSIA arguments as raising a factual challenge to the Court’s subject-matter jurisdiction, see infra Part II, which requires the Court to “go beyond the pleadings and resolve any disputed issues of fact” underlying the jurisdictional determination, Phoenix Consulting Inc. v. Republic of Angl., 216 F.3d 36, 40 (D.C. Cir. 2000). Even if Defendants’ contentions were treated as a facial challenge to jurisdiction under the FSIA, this Court can consider “documents incorporated by reference” in the complaint, World Wide Mins., Ltd. v. Republic of Kaz., 296 F.3d 1154, 1157 n.2 (D.C. Cir. 2002), and Youssef’s complaint specifically references the terms of her employment contracts (see Compl. ¶¶ 17–18). 4 Case 1:17-cv-02638-KBJ Document 45 Filed 08/23/21 Page 5 of 27 According to the complaint, Youssef’s responsibilities varied only slightly in her subsequent role as an Administrative Officer (see Compl. ¶ 12); the complaint alleges that, in addition to her secretarial responsibilities, she also maintained personnel records for all local employees of the Embassy’s Cultural Division (see id. ¶ 14; see also id. ¶ 15 (specifically alleging that Youssef “did not process any personnel records of UAE civil servants”)). Youssef’s contract for 2011 is silent as to her precise work duties. But the agreement lists her job title as “Administrative Officer” or “Administrative Affairs Officer” (depending on the translation) in the line below her signature, and it specifically cross-references Youssef’s June 2001 contract. (See Ex. 1 to Pl.’s Opp’n (“2011 Contract”), ECF No. 31-2, at 20–21; Ex. E to Defs.’ Mot., ECF No. 30-7, at 11–12.) Both the 2001 and 2011 contracts further specify that, while Youssef “may be sent on official duty to the Ministry Head Office in the United Arab Emirates at the Ministry’s cost and expense in accordance with the applicable financial regulations of the Ministry” (2011 Contract at 19; see 2001 Contract at 7), she “does not have authority to render the Mission a party to any binding commitment of any kind whatsoever arising between [herself] and any other person or entity, whether governmental or non-governmental” (2011 Contract at 19; see 2001 Contract at 7). Both contracts also include provisions for paid leave (see 2001 Contract at 3; 2011 Contract at 7–8), health insurance (see 2011 Contract at 4) or a medical allowance (see 2001 Contract at 2), and end-of-service benefits (see 2001 Contract at 6; 2011 Contract at 16–17).4 4 These benefits are contractual in nature and, according to Youssef, they are not concomitant with “UAE civil service benefits[.]” (Compl. ¶ 17.) 5 Case 1:17-cv-02638-KBJ Document 45 Filed 08/23/21 Page 6 of 27 B. Procedural History On February 19, 2016, forty-seven days after the UAE Embassy terminated her employment under the circumstances described above, Youssef filed a complaint with the U.S. Equal Employment Opportunity Commission (“EEOC”) and the D.C.