Harmoche v. Consulate General of the State of Qatar

Filing 17

MEMORANDUM OPINION AND ORDER denying #12 MOTION to Dismiss #1 Complaint (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

GUS HARMOUCHE,

§
§
§
§
§
§

Plaintiff,

v.
CONSULATE GENERAL OF THE STATE
OF QATAR,

June 12, 2018
David J. Bradley, Clerk

CIVIL ACTION NO. H-17-3698

§
§
§
§

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff Gus Harmouche,

("Harmouche" or "Plaintiff") brings

this action against defendant Consulate General of the State of
Qatar ("Consulate General" or "Defendant") asserting claims for age
and religious discrimination under Title VII of the Civil Rights
Act of 1964 and the Age Discrimination in Employment Act. 1

Pending

before the court is The Consulate General of the State of Qatar's
Motion to Dismiss Plaintiff's Complaint
Dismiss")

(Docket Entry No.

12) .

("Defendant's Motion to

For the reasons stated below,

Defendant's Motion to Dismiss will be denied.
I.

Factual and Procedural Background

Plaintiff began working for the Defendant in 1997 as a public
relations manager. 2

During his 19 years of employment Plaintiff

1

See Plaintiff's Complaint ("Complaint"), Docket Entry No. 1.

2

Complaint, Docket Entry No. 1, p. 3

~

10.

worked for six Consul Generals and multiple Vice Consuls. 3
public

relations

community

manager

events,

and

he

drafted

performed

press

other

releases,

As

planned

administrative

tasks. 4

Plaintiff alleges that in 2013 or 2014 the Consul General, Mohammed
Al-Homaid,

changed Plaintiff's job duties from public relations

tasks to "answering the phone,

being a backup driver sometimes,

opening the office door for him,
making

copies,

and

serving

opening the car door for him,

coffee. " 5

Plaintiff

states

that

Al-Homaid told Plaintiff that he was too old for the job and that
another employee unofficially assumed Plaintiff's public relations
duties. 6

The Vice Consul of the Consulate General of the State of

Qatar, Khaled Al Sulaiti, states that the Consul General did not
change Plaintiff's job duties but that his duties "were only those
duties necessary to fulfilling his
Public

Relations

Manager. " 7

job responsibilities as the

Plaintiff

also

alleges

that

Mr. Al-Homaid repeatedly harassed Plaintiff about his age and his

Affidavit of Gus Harmouche ( "Harmouche Affidavit"), Exhibit 1
to Plaintiff's Response
to Defendant's Motion to Dismiss
Plaintiff's Complaint
("Plaintiff's Response"), Docket Entry
No. 13-1, p. 1 ~~ 2, 6.
3

4

Complaint, Docket Entry No. 1, p. 3

Harmouche Affidavit, Exhibit
Docket Entry No. 13-1, p. 1 ~ 6.
5

6

1

to

Complaint, Docket Entry No. 1, p. 3

7

~

10.
Plaintiff's

~

Response,

11.

Declaration of Khaled Al Sulaiti ("Al Sulaiti Declaration"),
Supplement to The Consulate General of the State of Qatar's Reply
in Support of its Motion to Dismiss Plaintiff's Complaint
("Defendant's Reply") (Docket Entry No. 15), Docket Entry No. 16,
p. 1 ~ 3.
-2-

religion

when

he

refused

to

participate

in

Muslim

prayers. 8

Plaintiff alleges that when he was terminated from employment in
June of 2016, Mr. Al-Homaid "directly stated that it was because of
Plaintiff,s age." 9
Plaintiff filed this action on December 6, 2017, and Defendant
filed its Motion to Dismiss on April 30, 3018.

Plaintiff filed a

response to Defendant, s motion in which he attaches his affidavit . 10
Defendant

filed

reply

a

and

a

competing

affidavit

by

Mr. Al Sulaiti. 11
II.

Standard of Review

Defendant filed its Motion to Dismiss "[p]ursuant to Federal
Rule of Civil Procedure 12(b) (2)"

arguing that the court lacks

personal

jurisdiction over

Defendant,

However,

because

argues

Defendant

that

the
it

Consulate
is

immune

General. 12
from

the

court,s jurisdiction under the Foreign Sovereign Immunities Act
("FSIA"), the substance of Defendant,s argument raises a question
under

Rule

12(b) (1),

dismissal

for

lack

8

Complaint, Docket Entry No. 1, pp. 3-4

9

Id. at 4

~

of

~~

subject

matter

12, 13.

15.

See Plaintiff,s Response, Docket Entry No.
Affidavit,
Exhibit 1 to Plaintiff,s Response,
No. 13-1.
10

13; Harmouche
Docket Entry

11

See Defendant, s Reply, Docket Entry No. 15; Al Sulai ti
Declaration, Supplement to Defendant,s Reply, Docket Entry No. 16.
12

Defendant 1 s Motion to Dismiss, Docket Entry No. 12, p. 1.
-3-

jurisdiction.

The court therefore will analyze Defendant's motion

under the Rule 12(b) (1) standard.
A.

Subject Matter Jurisdiction

"Federal courts are courts of limited jurisdiction."
v.

Guardian Life Insurance Company of America,

1675

(1994).

matter

114 S.

Kokkonen
Ct.

1673,

A party may assert the defense of lack of subject

jurisdiction

in

a

Rule

12 (b) (1)

motion.

"'A

case

is

properly dismissed for lack of subject matter jurisdiction when the
court lacks the statutory or constitutional power to adjudicate the
case.'"

Horne Builders Association of Mississippi, Inc. v. City of

Madison,

Mississippi,

143 F.3d 1006,

1010

(5th Cir.

1998).

The

burden of establishing federal jurisdiction rests with the party
asserting its existence.
1854, 1861 n.3

DairnlerChrysler Corp. v. Cuno, 126 S. Ct.

(2006).

"Courts may dismiss for lack of subject matter jurisdiction on
any one of three different bases:
complaint

supplemented

by

(1) the complaint alone;

undisputed

facts

in

the

(2) the

record;

or

(3) the complaint supplemented by undisputed facts plus the court's
resolution of disputed facts."

Clark v. Tarrant County, Texas, 798

F.2d 736, 741 (5th Cir. 1986).

Rule 12 (b) (1) challenges to subject

matter

jurisdiction come

"factual" attacks.
(5th Cir.

1981).

in

two

forms:

"facial"

attacks

and

See Paterson v. Weinberger, 644 F.2d 521, 523
A facial attack consists of a

Rule 12 (b) (1)

motion unaccompanied by supporting evidence that challenges the
court's jurisdiction based solely on the pleadings.
-4-

Id.

A factual

attack challenges the existence of subject matter jurisdiction in
fact,

irrespective

of

the

pleadings,

and

matters

outside

the

pleadings -- such as testimony and affidavits -- may be considered.
Id.

Because the parties have each submitted evidence outside the

pleadings, the Defendant's Motion to Dismiss is a factual attack,
and the court will consider the evidence in the record, resolving
any disputed facts.
B.

Foreign Sovereign Immunities Act

The FSIA provides "the sole basis for obtaining jurisdiction
over

a

foreign

Republic v.
(1989).

state

in

Amerada Hess

[United

States]

Shipping Corp.,

courts."
109

S.

Argentine

Ct.

683,

688

Under the FSIA "a foreign state shall be immune from the

jurisdiction of

the courts of

enumerated exceptions.

the United States"

28 U.S.C.

§

1604.

with certain

"The foreign state bears

the burden of persuasion on the issue of immunity under the FSIA,
but once a prima facie showing of immunity has been made,

the

plaintiff

the

seeking to litigate in the district court bears

burden of coming forward with facts
applies."

showing that an exception

Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 172 (5th

Cir. 1994)
III.

Analysis

The parties do not dispute that Defendant is a "foreign state"
under Section 1603 of the FSIA. 13
13

Plaintiff argues that Defendant

See Plaintiff's Response, Docket Entry No. 13, p. 2
("Plaintiff does not disagree that the Consulate General is a
foreign state under the FSIA.").
-5-

is not immune under the FSIA because the
exception applies. 14

Section 1605 (a) (2)

"commercial activity"

states that a

"foreign

state shall not be immune from the jurisdiction of courts of the
United States or of the States in any case

in which the

action is based upon a commercial activity carried on in the United

,

States by the foreign state
Argentine Republic, 109 S. Ct. at 691.

28 U.S.C.

1605 (a) (2);

§

The activity must also have

"a jurisdictional nexus with the United States, as defined by the
FSIA."

Can-Am International,

LLC v.

Republic

Tobago, 169 F. App'x 396, 404 (5th Cir. 2006).

of

Trinidad and

Because all of the

relevant activity occurred in the United States and because the
parties

do

not

jurisdictional

dispute
nexus

that

with

the

the

activity

United

has

States,

the
the

requisite
court

must

determine only whether the activity is commercial or governmental
in nature.
The legislative history states that "courts would have a great
deal of latitude in determining what is a 'commercial activity' for
purposes of this bill."

H.R. Rep. 94-1487, at *16 (1976).

It also

provides examples of governmental and commercial activities:
[P]ublic or governmental and not commercial in nature,
would be the employment of diplomatic, civil service, or
military personnel, but not the employment of American
citizens or third country nationals by the foreign state
in the United States.
Activities such as a foreign government's
employment or engagement of laborers, clerical staff or

14

Id. at 2-6.
-6-

public relations or marketing agents,
among
those
included
within
the
"commercial activity"].
Id.

would be
definition
[of

Whether an employee of a foreign state is a civil servant is

relevant in determining whether the commercial activity exception
applies, but circuit courts have employed different approaches to
the analysis and give different weight to the employee's civil
servant status.

See, e.g., El-Hadad v. United Arab Emirates, 496

F.3d 658, 664 (D.C. Cir. 2007)

(citations omitted)

(" [L] ike many of

our sister circuits, we have held that a foreign government's civil
servants

do

qualify

for

2010 WL 786612 at

*2

(S.D.

Tex.

(reconsidered on other grounds) .
approach:
analysis

( 1)

Civil Action No.

March 5,

2010)

plaintiff

the
is

a

4:09-0024,
J.)

The analysis follows a two-step

foreign state is

not

Circuit's

(Ellison,

if the plaintiff is a civil servant,

stops because
the

activity

Lian Ming Lee v. Taipei Economic

and Cultural Representative Office,

if

commercial

courts in this district have followed the D.C.

analysis of civil-servant status.

( 2)

the

Although the Fifth Circuit has not ruled on this

exception.").
issue,

not

civil

immune

servant,

the

the court's
from suit;
court

will

determine whether the plaintiff's work was commercial in nature.
El-Hadad,

496

F. 3d at

664

(citing Saudi Arabia v.

Nelson,

113

S. Ct. 1471, 1479 (1993)).
A.

Civil Servant

The FSIA and its legislative history do not define "civil
service" and circuit courts recognize the risks in borrowing the
-7-

United States' notion of a civil servant.

See, e.g., El-Hadad, 496

F.3d at 664-65 (Because of the "dangers in borrowing or analogizing
to get

[a definition]

[w] e therefore take a

flexible and

inclusive approach"); Kato v. Ishihara, 360 F.3d 106, 113 (2d Cir.
2004)

("Other countries are free to structure employment relation-

ships

in ways

common to

that do not mimic

civil

service protections now

the United States and many European states,

without

thereby sacrificing the immunity conferred by the FSIA, as long as
the

sovereign,

by

extending

the

employment,

is

"governmental" rather than "commercial" activity.") .

engaging

in

The burden of

proof is on the foreign state defendant to show that the plaintiff
was employed as a civil servant under the foreign state's law.
El-Hadad, 496 F.3d at 666; Lee, 2010 WL 786612 at *2.
Defendant provides the Al Sulaiti Declaration as evidence to
support its Motion to Dismiss.

The Al Sulaiti Declaration states

"Plaintiff Harmouche was considered a civil servant by the State of
Qatar." 15 Defendant does not support this conclusory statement with
any evidence of Qatari law.

Moreover, Plaintiff is not a citizen

of Qatar and states that he was not a civil servant of Qatar. 16

The

court concludes that Defendant has not met its burden to show that
Plaintiff was a civil servant.

Therefore,

the court must decide

whether Plaintiff's work was commercial in nature.

15

Al Sulaiti Declaration, Docket Entry No. 16, p. 1

16

Harmouche Affidavit, Docket Entry No. 13-1, p. 1
-8-

~
~~

3.
3, 5.

B.

Nature of the Activity

In deciding
governmental

in

whether

Plaintiff's

nature,

the

duties

ultimate

are

commercial

question

is

or

whether

Plaintiff's job responsibilities "involved the exercise of 'powers
that can also be exercised by private citizens, as distinct from
those powers peculiar to sovereigns.'"

El-Hadad, 496 F.3d at 667

(quoting Saudi Arabia, 113 S. Ct. at 1479).

"One distinctive mark

of governmental work is discretionary involvement with sovereign
law or policy."

Id.

at 668.

"The commercial character of an

activity shall be determined by reference to the nature of the
course of conduct or particular transaction or act, rather than by
reference to its purpose."

28 U.S.C.

§

1603(d).

The reason that

a foreign state undertakes the activity alleged to be commercial is
irrelevant.
2160,

2167

Republic of Argentina v. Weltover,
(1992).

Inc., 112 S. Ct.

The court may look "only to the resemblance

between 'the outward form' of his conduct and powers and those of
private citizens."

El-Hadad, 496 F.3d at 668

(citing Republic of

Argentina, 112 S. Ct. at 2167).
Defendant argues

that

"because the Consulate General is a

foreign sovereign whose inherent functions are purely governmental,
and because the purpose of Plaintiff's job responsibilities were to
further that purely governmental purpose, the commercial activity
exception does not apply." 17

17

But the FSIA explicitly prohibits

Defendant's Reply, Docket Entry No. 15, p. 2.
-9-

reference
§

to

the purpose

of

the

relevant

conduct.

28

u.s.c.

1603(d); see also Lee, 2010 WL 786612 at *7 (rejecting the same

argument by the foreign state) .
Defendant also argues that Plaintiff's job duties were not
commercial in nature. 18 Although the legislative history to Section
1605 of the FSIA includes employment of public relations agents in
its

definition

of

"commercial

activity"

and

states

that

the

employment of American citizens is not governmental in nature, H.R.
Rep.

94-1487 at *16, Defendant urges the court to use its "great

deal of latitude in determining what is a 'commercial activity'" to
reject

argument. 19

Plaintiff's

Defendant

argues

that

because

Plaintiff has presented no evidence of his job duties as public
relations manager, he has not supported his burden to show that an
exception to the FSIA applies. 20
Plaintiff

is

a

United

States

citizen who

Consulate General as a public relations manager. 21
94-1487 at *16.

included answering the telephone,

the

See H.R. Rep.

Some of Plaintiff's job duties
driving a car,

opening doors,

Id. at 4.

19

for

As a public relations manager Plaintiff drafted

press releases and planned events. 22

18

worked

Id. at 4-5.

21

Harmouche Affidavit, Exhibit
Docket Entry No. 13-1, p. 1.
22

1

to

Complaint, Docket Entry No. 1, p. 3.
-10-

Plaintiff's

Response,

making copies, and serving coffee. 23
included

other

tasks

Houston,

mak [ing]

such

hotel

organizing events,

as

Even if Plaintiff's job duties

"assisting

reservations,

Qatari

delegation

supervis [ing]

assisting diplomats,

and

in

purchases,

emergency protocol

during natural disasters," 24 none of those tasks involve sovereign
law or policy but instead are consistent with a public relations
manager's duties in the private commercial world.
WL 786612 at *7.

See Lee, 2010

Defendant presents no evidence that Plaintiff had

any role in the creation of governmental policy and to the extent
Plaintiff

carried

discretionary.
that

government

policy,

his

See El-Hadad, 496 F.3d at 668.

Plaintiff

employment

out

with

has

met

his

Defendant

burden

falls

of

under

tasks

were

The court concludes

establishing
the

not

FSIA's

that

his

commercial

activity exception.
IV.

Conclusions and Order

For the reasons explained above, The Consulate General of the
State of Qatar's Motion to Dismiss Plaintiff's Complaint

(Docket

Entry No. 12) is DENIED.
SIGNED at Houston, Texas,

2018.

SIM LAKE
UNITED STATES DISTRICT JUDGE

23

Harmouche Affidavit, Exhibit
Docket Entry No. 13-1, p. 1.
24

1

to

Plaintiff's

Al Sulaiti Declaration, Docket Entry No. 16, p. 2.
-11-

Response,