Fontoine v. The Permanent Mission of Chile to the United Nations et al
Filing
112
ORDER granting in part and denying in part 105 Motion for Renewed Suggestion of Immunity of the Republic of Chile. For the foregoing reasons, Defendants' suggestion of immunity is well taken as to the Individual Defendants, but not as to the Permanent Mission. Accordingly, Defendants' motion to dismiss is GRANTED in part and DENIED in part. The Clerk of Court is directed to terminate the motion at ECF No. 105. Finally, the Court notes that the docket contains an error in the spelling of this matter's caption. The Clerk of Court is, therefore, directed to amend the caption as styled above. SO ORDERED. (Signed by Judge Analisa Torres on 8/18/2020) (kv)
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In May 2015, Plaintiff interviewed with Carlos Olguín and other staff of the Permanent
Mission for the position of Secretary of General Duties. Compl. ¶ 13. The job involved
“applying for and obtaining access cards to UN buildings for diplomatic and administrative
personnel,” “preparing and dispatching the [Permanent Mission’s] diplomatic bag,” “obtaining
State Department cards for staff,” “registering and obtaining license plates for [the Permanent
Mission’s] vehicles,” “obtaining accreditations for students who completed internships at [the
Permanent Mission],” “obtaining and renewing visas for diplomatic and administrative
personnel,” “purchasing office supplies, making minor repairs to [the Permanent Mission’s]
offices,” and “collaborating on Spanish/English secretarial work for Mission officials.” Id. ¶ 16.
In Plaintiff’s interview, Olguín asked her “if she was married, why she was getting
divorced, where her ex-husband was from, what her ex-husband did for a living, and where he
lived precisely.” Id. ¶ 13. Plaintiff felt uncomfortable, but at the conclusion of the interview she
was nonetheless hired, starting in July 2015. Id. ¶¶ 14–15. Her employment contract (the
“Contract”) set out her duties, hours, and pay, and provided, “For all legal purposes, this contract
shall be governed by the current legislation of the United States.” Translated Contract at 2, ECF
No. 106-6.
Plaintiff alleges that during her employment at the Permanent Mission, Olguín repeatedly
made public jokes that she was dating her supervisor, made lewd comments about other
employees in her presence, and once, after giving her and other women in the office hand lotion
as a holiday gift, stated that he could apply the lotion to her. Compl. ¶¶ 19–25, 28. She also
claims that Olguín singled her out for harsh treatment. Id. ¶¶ 30–35. She further alleges that
both her immediate supervisor, Ernesto Gonzalez, and the head of the Permanent Mission,
Cristián Barros, tolerated Olguín’s behavior, and retaliated against her in the workplace for
complaining about it. Id. ¶¶ 26–27, 37, 39, 41–43.
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Plaintiff eventually filed a charge with the Equal Employment Opportunity Commission
and complained to the Chilean Ministry of Foreign Affairs. Id. ¶¶ 47, 49. She alleges that once
she did so, Barros, Olguín, and Gonzalez treated her coldly, stripped her of work assignments,
effectively barred her from a workplace social event by prohibiting her from bringing her
daughter when they knew she did not have access to childcare, and ultimately fired her. Id.
¶¶ 50–54, 61. She alleges that after her termination, the Permanent Mission’s staff delayed
paying her vacation time and providing her final paycheck. Id. ¶¶ 62–64.
In August 2017, Plaintiff began working at a bank in New York City. Id. ¶ 66. On
January 6, 2018, the bank’s human resources department received a letter (the “Letter”) stating:
It has come to my attention that Mrs. Carolina Fontaine works in your institution.
I would like to notify you that this individual created major disruption in our
organization to the point that many people suffered the consequences of her lies
and slander. I join an article from the biggest newspaper in Chile that reported the
problem in its pages. Be very weary. Sincerely.
Id. ¶ 67. She alleges on information and belief that “Barros, . . . Olgu[í]n and[/]or . . . Gonzalez
wrote and sent the anonymous letter.” Id.
DISCUSSION
Plaintiff brings claims for sex discrimination and retaliation under Title VII of the Civil
Rights Act, 42 U.S.C. § 2000e et seq.; the New York State Human Rights Law (“NYSHRL”),
N.Y. Exec. Law § 290 et seq.; and the New York City Human Rights Law (“NYCHRL”), N.Y.C.
Admin. Code § 8-101 et seq. Compl. ¶¶ 69–132. She also brings a common law claim for
intentional infliction of emotional distress against the Individual Defendants based on the Letter.
Id. ¶¶ 133–140.
Defendants argue that Plaintiff’s claims against the Permanent Mission are barred by
sovereign immunity, and that her claims against the Individual Defendants are barred by their
diplomatic immunity. Def. Mem. at 9–24, ECF No. 105. Both arguments implicate the Court’s
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subject matter jurisdiction. See Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993) (“[A] foreign
state is presumptively immune from the jurisdiction of United States courts; unless a specified
exception applies, a federal court lacks subject-matter jurisdiction over a claim against a foreign
state.”); Broidy Capital Mgmt. LLC v. Benomar, 944 F.3d 436, 443 (2d Cir. 2019) (“Diplomatic
immunity is a matter of subject matter jurisdiction.”).
I.
Legal Standard
“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1)
[of the Federal Rules of Civil Procedure] when the district court lacks the statutory or
constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir.
2000). Where subject matter jurisdiction is challenged, a plaintiff “bear[s] the burden of
showing by a preponderance of the evidence that subject matter jurisdiction exists.” APWU v.
Potter, 343 F.3d 619, 623 (2d Cir. 2003) (internal quotation marks and citation omitted). In
reviewing a Rule 12(b)(1) motion, the court “must accept as true all material factual allegations
in the complaint, but [is] not to draw inferences from the complaint favorable to plaintiffs.” J.S.
ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004). “In resolving a motion to
dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) a district court may consider
evidence outside the pleadings.” Morrison v. Nat’l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir.
2008), aff’d, 561 U.S. 247 (2010).
II.
Claims Against the Permanent Mission
The Court’s jurisdiction over claims against the Permanent Mission is governed by the
Foreign Sovereign Immunities Act (the “FSIA”), 28 U.S.C. § 1602 et seq. “The FSIA provides
the sole basis for obtaining jurisdiction over a foreign state in federal court.” Permanent Mission
of India to the United Nations v. City of New York, 551 U.S. 193, 197 (2007) (internal quotation
marks, citation, and alteration omitted). “A foreign state is presumptively immune from the
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jurisdiction of United States courts; unless a specified exception to the FSIA applies, a federal
court lacks subject-matter jurisdiction over a claim against a foreign state.” USAA Cas. Ins. Co.
v. Permanent Mission of Republic of Namibia, 681 F.3d 103, 107 (2d Cir. 2012) (internal
quotation marks, citation, and alterations omitted); see 28 U.S.C. § 1604 (“[A] foreign state shall
be immune from the jurisdiction of the courts of the United States and of the States except as
provided in sections 1605 to 1607 of this chapter.”). “A foreign state’s permanent mission to the
United Nations is indisputably the embodiment of that state,” and is “entitled to rely on the
defense of sovereign immunity unless an exception to the FSIA applies.” USAA Cas. Ins. Co.,
681 F.3d at 107 (internal quotation marks and citation omitted).
Plaintiff argues that the Permanent Mission waived its sovereign immunity, and so the
Court may exercise jurisdiction under 28 U.S.C. § 1605(a)(1). Pl. Opp. at 8–13, ECF No. 107.
That section provides for a waiver of immunity under the FSIA when “the foreign state has
waived its immunity either explicitly or by implication, notwithstanding any withdrawal of the
waiver which the foreign state may purport to effect except in accordance with the terms of the
waiver.” 28 U.S.C. § 1605(a)(1). A waiver should be implied only in “circumstances in which
the waiver was unmistakable, and courts have been reluctant to find an implied waiver where the
circumstances were not . . . unambiguous.” Shapiro v. Republic of Bolivia, 930 F.2d 1013, 1017
(2d Cir. 1991); see also Cargill Int’l S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1017 (2d Cir.
1993) (holding that an implied waiver of sovereign immunity “will not be implied absent strong
evidence of the sovereign’s intent”).
“Waiver of immunity may be implied in cases where a foreign state has agreed to
arbitration in another country, or agreed that the law of a particular country should govern a
contract . . . .” Kern v. Oesterreichische Elektrizitaetswirtschaft Ag, 178 F. Supp. 2d 367, 374
(S.D.N.Y. 2001) (citing Smith v. Socialist People’s Libyan Arab Jamahiriya, 101 F.3d 239, 243
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(2d Cir. 1996)). Plaintiff argues that the Permanent Mission waived its sovereign immunity
based on the provision in the Contract that states: “For all legal purposes, this contract shall be
governed by the current legislation of the United States,” (the “Choice of Law Clause”).
Translated Contract at 2; see also Original Contract at 3, ECF No. 106-6 (“Para todos los efectos
legales, el presente contrato se regirá por la legislación vigente en los Estados Unidos de
Norteamérica.”). Defendants argue, however, that any waiver implied by contract’s choice of
law provision must be limited to contract claims, and cannot extend to non-contract causes of
action. Def. Mem. at 12–13; Reply at 10–14.
The Court is not aware of any authority in the Second Circuit that has addressed the
question of whether an implied waiver of sovereign immunity in an employment contract is
limited to contract claims, or should apply to claims brought under other employment laws. The
most similar case is Kim v. Korea Trade Promotion-Investment Agency, 51 F. Supp. 3d 279
(S.D.N.Y. 2014). In Kim, the plaintiff alleged violations of the federal Age Discrimination in
Employment Act, the NYSHRL, and the NYCHRL against a nonprofit agency of the Korean
government established under Korean law. Id. at 281. The plaintiff argued that the agency had
implicitly waived its immunity under the FSIA based on evidence that it directed its overseas
offices to have local law govern employment contracts and related disputes, and provided
employees with a handbook stating that they were protected by the anti-discrimination laws of
the United States during the course of their employment. Id. at 285. The court nonetheless held
that the plaintiff had not demonstrated an unambiguous and unmistakable waiver of sovereign
immunity, because the employee handbook—which was incorporated into the plaintiff’s
employment contract—stated “in all capital and bold letters, on the very first page,” that
“NOTHING HEREIN IS INTENDED AS A WAIVER OF [THE AGENCY’S] SOVEREIGN
IMMUNITY TO SUIT OR CLAIMS IN ANY SUCH COURT OR AGENCY.” Id. In light of
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that express disclaimer of waiver, the court determined that it could not find that the agency had
unmistakably consented to be sued in United States courts. Id. at 285–86.
But unlike in Kim, the Contract in this case contains no disclaimer of the Permanent
Mission’s intent to waive its sovereign immunity. Nothing qualifies the Choice of Law Clause’s
expansive statement that the “current legislation of the United States” shall govern the contract
“for all legal purposes.” Translated Contract at 2.
Courts outside the Second Circuit have held that similar contractual provisions constitute
an implied waiver of immunity under the FSIA that extends not only to contract claims, but also
to other claims arising out of the contractual relationship, including employment discrimination.
For example, in Ashraf-Hassan v. Embassy of France in the United States, the United States
District Court for the District of Columbia held that an employee of the French embassy could
pursue employment discrimination claims under Title VII based on a clause in her employment
contract which provided, “This document relies upon local law for its application.” 40 F. Supp.
3d 94, 101 (D.D.C. 2014), aff’d on other grounds, 610 F. App’x 3 (D.C. Cir. 2015). Noting that
the choice of law clause was “not subject to any limitation or reservation,” the court reasoned
that it should be read to imply that the defendant “assumed obligations to abide by U.S. law—
including Title VII—in its employment relationship with [the plaintiff] and, accordingly, waived
its right to assert immunity for any dispute arising therefrom.” Id.
Similarly, in Ghawanmeh v. Islamic Saudi Academy, the court permitted an employee of
a school operated by the Kingdom of Saudi Arabia to proceed with claims under Title VII and
the Family and Medical Leave Act based on a clause that stated: “All disputes under this
Agreement and in the interpretation or validity of any provision, shall be governed by the laws of
the Commonwealth of Virginia.” 672 F. Supp. 2d 3, 9 (D.D.C. 2009). The court explained that
under long-established law, “there can be no more obvious and implicit waiver of sovereign
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immunity than the sovereign’s express intent to subject itself to the jurisdiction of a foreign court
as demonstrated by a choice of law clause within a contract.” Id.
The Court agrees with that reasoning. Given the longstanding rule that a waiver of
sovereign immunity can be implied from a contract’s choice of law provision, the inclusion of an
unqualified statement in the Contract that, “[f]or all legal purposes, this contract shall be
governed by the current legislation of the United States” is strong evidence of the Permanent
Mission’s intent to waive immunity. Were that their intent, the parties could have inserted a
proviso stating that the Permanent Mission did not intend to waive its immunity, or limiting the
waiver to contract claims.
Moreover, Plaintiff points to evidence that Defendants understood the Choice of Law
Clause to apply United States labor law to the parties’ employment relationship. On August 23,
2017, apparently in response to a request by Plaintiff for two months’ worth of compensation
following her termination, a letter from the Chilean Ministry of Foreign Affairs stated, “your
contract is governed by US law and . . . US law makes no provision for such compensation.”
ECF No. 106-10 at 3. In 2017, at least, the Chilean government appeared to believe that the
Choice of Law Clause was intended to broadly subject Plaintiff’s employment to United States
law.
Defendants argue that the Choice of Law Clause was intended only to help interpret
portions of the Contract that incorporated United States law, such as provisions requiring
Plaintiff to pay United States taxes and inform her employer of any changes in her immigration
status. Reply at 1–5, 13–14; see Letter from Carlos F. Cornejo, Director of Personnel, Ministry
of Foreign Affairs, Republic of Chile, ECF No. 109-1. The Court appreciates the need for
diplomatic missions to contractually obligate their employees to abide by United States law for
the sake of reducing international tensions. But Defendants’ argument that the Choice of Law
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Clause is limited to that purpose is not consistent with that provision’s language. The Contract
states that United States law shall govern “this contract,” not Plaintiff’s obligations. In stating
that the Contract would be “governed by” United States law, the Choice of Law Clause mirrors
almost exactly the language that courts have long held effects an implied waiver of sovereign
immunity. See, e.g., Shapiro, 930 F.2d at 1017 (“With respect to implicit waivers, the courts
have found such waivers in cases . . . where a foreign state has agreed that the law of a particular
country should govern a contract.” (citation omitted)). Furthermore, the Choice of Law Clause
states that United States legislation shall govern “for all legal purposes.” Such language
indicates an intention to subject the entire contractual relationship to United States law—and, by
implication, to submit disputes arising from that relationship to United States courts.
Accordingly, Defendants’ motion to dismiss Plaintiff’s claims against the Permanent
Mission is DENIED.
III.
Claims Against the Individual Defendants
“Diplomatic immunity in the United States is governed by the Vienna Convention on
Diplomatic Relations” (the “VCDR”). Broidy Capital Mgmt., 944 F.3d at 441; see The Vienna
Convention on Diplomatic Relations, Apr. 18, 1961, entered into force with respect to the United
States Dec. 13, 1972, 23 U.S.T. 3227. Under the VCDR, “current diplomatic envoys enjoy
absolute immunity from civil and criminal process,” and “former diplomatic envoys retain
immunity only with respect to acts performed by such a person in the exercise of his functions as
a diplomatic envoy.” Brzak v. United Nations, 597 F.3d 107, 113 (2d Cir. 2010) (internal
quotation marks and citation omitted). In addition, the VCDR provides that “[m]embers of the
administrative and technical staff of the mission” are entitled to the same immunities, “except
that the immunity from civil and administrative jurisdiction of the receiving State . . . shall not
extend to acts performed outside the course of their duties.” VCDR Art. 37(2).
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“The Diplomatic Relations Act of 1978, 22 U.S.C. § 254d, makes pellucid that American
courts must dismiss a suit against anyone who is entitled to immunity under either the VCDR or
other laws extending diplomatic privileges and immunities.” Brzak, 597 F.3d at 113; see also
Broidy Capital Mgmt., 944 F.3d at 441 (“The Diplomatic Relations Act . . . incorporated the
VCDR into U.S. law and repealed contradictory earlier legislation.”).
A. Employment Discrimination
To the extent that Plaintiff asserts employment discrimination claims under Title VII, the
NYSHRL, or the NYCHRL against the Individual Defendants, those claims are barred by
diplomatic immunity.1
It is not disputed that Barros and Olguín were, at the time this suit was commenced,
diplomatic envoys entitled to immunity under the VCDR. See Def. Mem. at 16–17; Pl. Opp. at
14; Statement of Interest of the United States of America at 10, ECF No. 20; Declaration of
James B. Donovan, Minister Counselor for Host Country Affairs of the United States Mission to
the United Nations (“Donovan Decl.”) at 1–2, ECF No. 21. Accordingly, they were absolutely
immune to civil process. See United States v. Khobragade, 15 F. Supp. 3d 383, 387 (S.D.N.Y.
2014) (“Courts in civil cases have dismissed claims against individuals who had diplomatic
immunity at an earlier stage of proceedings, even if they no longer possessed immunity at the
time dismissal was sought.”). Plaintiff argues, however, that the alleged conduct falls into one of
the narrow exceptions to diplomatic immunity codified at Article 31(1) of the VCDR. Pl. Opp.
at 13–16. Specifically, she argues that the alleged employment discrimination constituted “[a]n
1
The complaint does not make it entirely clear whether Plaintiff intends to assert employment discrimination claims
against the Individual Defendants, or only against the Permanent Mission. Each of her eight employment
discrimination claims begins with the header “Fontaine v. [Permanent Mission],” while her claim for intentional
infliction of emotional distress has the header “Fontaine v. PR Barros, DPR Olgu[í]n, and Mr. Gonzalez.” See
Compl. at 18–30. The introduction to her complaint, however, indicates that that she is pursuing all of her claims
against all of the defendants. See id. at 2. In the interest of clarity, the Court will address its subject matter
jurisdiction over the employment discrimination claims as well as the intentional infliction of emotional distress
claim.
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action relating to any professional or commercial activity exercised by the diplomatic agent in
the receiving State outside his official functions.” VCDR Art. 31(1)(c).
The Second Circuit has held that employment discrimination claims under Title VII,
including claims of sexual harassment, fall within the scope of “functional immunity” afforded to
former diplomatic envoys for “acts performed by such a person in the exercise of his functions.”
Brzak, 597 F.3d at 113 (internal quotation marks and citation omitted). The appeals court
explained that claims of workplace discrimination “involve personnel management decisions
falling within the ambit of the defendants’ professional responsibilities.” Brzak, 597 F.3d at 113;
see also Brzak v. United Nations, 551 F. Supp. 2d 313, 320 (S.D.N.Y. 2008) (“The allegations of
sexual harassment and indecent battery against [the defendant] are allegations of abuse of
authority in the workplace. Whether [those] alleged acts were intended or perceived as sexual in
nature may be relevant to their wrongfulness, but not to the determination of functional
immunity.” (internal quotation marks and citation omitted)).
Moreover, “[w]hile the precise contours of the phrase ‘professional or commercial
activity,’ which is not defined in the VCDR, are unsettled, it is broadly understood to refer to
trade or business activity engaged in for personal profit.” Broidy Capital Mgmt., 944 F.3d at
445. The harassment and retaliation Plaintiff alleges plainly did not occur in that setting.
Accordingly, Barros and Olguín are immune to Plaintiff’s claims.
Gonzalez is not a diplomatic envoy, but he is a member of the Permanent Mission’s
administrative staff, and as such is entitled to diplomatic immunity except for “acts performed
outside the course of [his] duties.” VCDR Art. 37(2).2 Again, it is clear that Plaintiff’s
2
The State Department also represents that Gonzalez is entitled to immunity under the International Organizations
Act of 1945, which provides that “[r]epresentatives of foreign governments in or to international organizations and
officers and employees of such organizations shall be immune from suit and legal process relating to acts performed
by them in their official capacity and falling within their functions as such representatives, officers, or employees
except insofar as such immunity may be waived by the foreign government or international organization
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employment discrimination claims arise from acts performed in the course of Gonzalez’s duties
at the Permanent Mission.
Accordingly, Defendants’ motion to dismiss Plaintiff’s employment discrimination
claims against the Individual Defendants is GRANTED.
B. Intentional Infliction of Emotional Distress
As with Plaintiff’s employment discrimination claims, Barros and Olguín are entitled to
absolute immunity against Plaintiff’s claim for intentional infliction of emotional distress.
Plaintiff’s allegations suggest, at most, a personal grudge arising out of her work at the
Permanent Mission, which has nothing to do with any “trade or business activity engaged in for
personal profit.” Broidy Capital Mgmt., 944 F.3d at 445.
Gonazalez is entitled to immunity so long as writing and sending the Letter was not an
act “performed outside the course of [his] duties.” VCDR Art. 37(2). Defendants argue that
such immunity applies, because the Letter discusses Plaintiff’s performance as an employee of
the Permanent Mission and its effect on the Permanent Mission’s perations. Def. Mem. at 18.
The Court agrees. “When a court attempts to determine whether a defendant is seeking
immunity with respect to acts performed by such a person in the exercise of his functions, the
court must do so without judging whether the underlying conduct actually occurred, or whether it
was wrongful.” Brzak, 597 F.3d at 113. Regardless of whether writing or sending the Letter was
appropriate, its subject matter fell squarely within Gonzalez’s purview as an employee of the
Permanent Mission.
Accordingly, Defendants’ motion to dismiss Plaintiff’s claim for intentional infliction of
emotional distress is GRANTED.
concerned.” 22 U.S.C. § 288d(b); see Statement of Interest of the United States of America at 11; Donovan Decl. at
3.
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CONCLUSION
For the foregoing reasons, Defendants’ suggestion of immunity is well taken as to the
Individual Defendants, but not as to the Permanent Mission. Accordingly, Defendants’ motion
to dismiss is GRANTED in part and DENIED in part. The Clerk of Court is directed to
terminate the motion at ECF No. 105.
Finally, the Court notes that the docket contains an error in the spelling of this matter’s
caption. The Clerk of Court is, therefore, directed to amend the caption as styled above.
SO ORDERED.
Dated: August 18, 2020
New York, New York
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