Coulibaly v. Tillerson (273 F. Supp. 3d 16, 2017)

United States District Court for the District of Columbia 2017-08-29

Labor Government Organization and Employees

Citations

Full opinion text

MEMORANDUM OPINION

Denying the Parties’ Cross-Motions for Summary Judgment; Denying Plaintiff’s Motions to Add Newly Acquired Evidence

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

Plaintiff Tiemoko Coulibaly, proceeding pro se and in forma pauperis, brings this action against the Secretary of State and fifteen other individuals who are current or former employees of the U.S. Department of State (collectively, “Defendants”). Dr. Coulibaly alleges that by firing him, Defendants violated Title I of the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. §§ 2601-2654. The parties now move for summary judgment. After filing his cross-motion for summary judgment, Dr. Coulibaly also' moved twice to add newly acquired evidence to the record.

Because Defendants have not shpwn that Title II of the FMLA governs this suit, the Court will deny Defendants’ motion for summary judgment with respect to that argument. And because a genuine issue of material fact remains with respect to whether retaliation for FMLA-protected activities actually motivated Defendants’ decision to terminate Dr. Coulibaly’s employment, the Court will deny the parties’ motions for summary judgment on the merits of Dr. Coulibaly’s FMLA claim. Because the additional evidence that Dr. Coulibaly provided does not affect the Court’s conclusion about the remaining issue of material fact, the Court will deny Dr. Coulibaly’s motions to add newly acquired evidence. ,

II. BACKGROUND

A. Employment as an FSI Contractor (1999-2011)

Dr. Coulibaly joined the Department of State’s Foreign Service Institute (“FSI”) as a French instructor in 1999. Compl. ¶ 4, EOF No. 1; Defs.’ Stmt. Material Facts Supp. Cross-Mot. Summ.' J. & Opp’n Pl.’s Mot. Summ. J. (“Defs.’ Stmt.”) ¶ 1, ECF No. 27-1. As an instructor, Dr. Coulibaly taught students speaking, reading, listening comprehension, and writing skills, and he provided input for planning, design, development, and evaluation of course content. Defs.’ Stmt. ¶¶ 5-6, 9; see also Position Description, Pl.’s Mot. Summ. J. Ex. F, ECF No. 23-2, at 26-27. According to several of his colleagues, Dr. Coulibaly was well-regarded by his students and colleagues during this time.

FSI initially hired Dr. Coulibaly as a contractor under- a series of Blanket Purchase Agreements (“BPAs”). See Compl. ¶¶75, 83; Defs.’ Stmt; ¶¶2~3; see also, e.g., BPA Contract Modification, PL’s Mot. Summ. J. Ex. A, ECF No. 23-1, at 111-22 (modifying Dr. Coulibaly’s BPA with an updated description of his work responsibilities, and indicating that the modified BPA would take effect on November 10, 2010). These BPAs stated that Dr. Couli-baly was a contractor only, and not an employee. See Defs.’ Stmt. ¶ 4; see, e.g:, BPA Contract Modification at 120 (“Awar-dees of a [BPA] are not civil service or Foreign Service employees of the United States Government, and ... should not identify themselves as Government employees either orally or in writing.”)- The BPAs also required Dr. Coulibaly to submit invoices to the State Department to receive payment. See Defs.’ Stmt. ¶ 3; see, e.g,, BPA Contract Modification, at 119 (“Contractors will submit invoices bi-weekly for hours worked through presentation of a Work Schedule and an invoice to the FSI Budget Office”).

B. Excepted Service Appointment at FSI (June 2011)

On June 19, 2011, Dr. Coulibaly began a two-year Excepted Service appointment within the Department of State as a French instructor. See Compl. ¶¶75, 83; Defs.’ Stmt. ¶¶ 5-7; see also Letter from Swati Limaye to Tiemoko Coulibaly (May 27, 2011), Compl. Ex., ECF No. 1-1, at 113-14. Under this appointment, Dr. Couli-baly performed substantially the same duties as he had while he was a contractor. See Compl. ¶¶ 75, 83; Defs.’ Stmt. ¶¶ 5-7. His appointment was subject to an initial one-year trial period. See Compl. ¶¶ 75, 83; Defs.’ Stmt. ¶ 8.

C. Conflict with Supervisor Laura Fyfe (July 2011-November 2011)

During his appointment, Dr. Coulibaly initially reported to Language Training Supervisor (“LTS”) Laura Fyfe. See Compl. ¶ 6; Defs.’ Stmt. ¶ 11. The record contains several email chains that document the interactions between LTS Fyfe and Dr. Coulibaly during the first few months of his employment. See, e.g., Email from Laura Fyfe (Nov. 7, 2011, 7:23 PM), ROI at 721-24, ECF No. 26-7; Email from Ann Keller-Lally to James North (Nov. 8, 2011, 9:38 AM), ROI at 725-34, ECF No. 26-7.

In one such email, LTS Fyfe states that, after establishing Dr. Coulibaly’s “work commitments” on June 20, 2011, she met with Dr. Coulibaly on July 8, 2011 for a performance discussion. Email from Laura Fyfe (Nov. 7, 2011, 7:23 AM), ROI at 721. LTS Fyfe said that, during the discussion, she recommended to Dr. Coulibaly that he “work on his teaching portfolio by developing a specific skill since he [didn’t] have pedagogical training.” Id. When Dr. Couli-baly replied that he did not know how to do that, she told him to develop a “reading lesson plan.” Id. This reading lesson plan later became a point of contention. See id. at 721-22.

LTS Fyfe reports that in advance of a planned observation of Dr. Coulibaly’s class the following month, she requested class readings from Dr. Coulibaly. See id. at 721. According to LTS Fyfe, Dr. Couli-baly responded by stating that he felt that his students were not yet ready to read. See id. LTS Fyfe later opined that the reading delay was “out of the ordinary” in a French section, where she stated that “teachers begin teaching reading starting in the first week with A level texts varying from advertisements to menus.” Id.

LTS Fyfe observed Dr. Coulibaly’s class on August 18, 2011, as planned. Id. She followed up with Dr. Coulibaly by email later that day and the next day. Id. at 721-22. In her August 19, 2011 email, LTS Fyfe told Dr. Coulibaly to “prepare a reading lesson” for his class based on “the four P’s” method. See Email from Laura Fyfe (Aug. 19, 2011, 12:02 PM), ROI at 733.

Five days later, on August 24, 2011, Dr. Coulibaly submitted his reading lesson plan to LTS Fyfe. LTS Fyfe later characterized Dr. Coulibaly’s lesson plan as “a template for writing a lesson plan—not an actual lesson plan.” Email from Laura Fyfe (Nov. 7, 2011, 7:23 PM), ROI at 722. LTS Fyfe states that she told-Dr. Coulibaly during the following week that the plan was “a beginning” and then aske,d Dr. Coulibaly to make improvements—namely, to include a specific article for the students to read and to “address some of the specifics of the article and the timing and level of the lesson.” Id. at 722-23 (reproducing an email from August 30, 2011). According to LTS Fyfe, Dr. Coulibaly responded later that day and requested clarification about whether his lesson plan was satisfactory. See id. at 723 (“I would be grateful if you could tell me if this ‘beginning’ is appropriate or not for you, if it is good or not, so I could try to improve it.”). LTS Fyfe claims that she responded to Dr. Coulibaly’s request by giving him “specific questions.” See id.

More than a month later, LTS Fyfe says that she again requested a reading lesson plan. See id. Two days after her second request, Dr. Coulibaly responded by forwarding LTS Fyfe the same generic lesson plan that he had sent her in August. See Email from Tiemoko Coulibaly (Oct. 5, 2011, 8:55 AM), ROI at 732-33, ECF No. 26-7. LTS Fyfe then clarified that she found the August lesson plan|to be unsatisfactory. See Email from Laura Fyfe (Oct. 5, 2011, 11:24 AM), ROI at 732, ECF No. 26-7 (“[W]hen I wrote, ‘this is a beginning,’ I was suggesting that [the August lesson plan was] not complete and [that] it needed to be revised.” (emphasis in original)). Dr. Coulibaly said that he was “confused and unclear4 about what to do exactly” and stated that he “would appreciate” a time to meet with LTS Fyfe for clarification. See Email from Tiemoko Coulibaly (Oct. 5, 2011, 12:36 PM), ROI at 731-32, ECF No. 26-7. LTS-Fyfe states that she attempted to meet with Dr. Coulibaly on October 12, 2011, but that she “made a mistake about his teaching schedule,” so no meeting occurred. See Email from Laura Fyfe (Nov. 7, 2011, 7:23 PM), ROI at 724. LTS Fyfe asserts that, instead, she delegated the matter to another FSI employee, Dora Chanesman. See id.-, Email from Laura Fyfe (Nov. 4, 2011, 9:57 AM), ROI at 731, ECF No. 26-7.

In early November 2011, LTS Fyfe contacted Dr. Coulibaly again about the reading lesson plan and wrote that “[s]ince [she and Dr. Coulibaly had] not been able to set up a time to go over a writing lesson plan, [she had] asked Dora Chanesman [to] assist [him] with the process.” Email from Laura Fyfe (Nov. 4, 2011, 9:57 AM), ROI at 731. Dr. Coulibaly responded later that day with his interpretation of LTS Fyfe’s message: “This suggests in my mind that I have refused or I have rejected to ‘set up a time to go over writing a lesson plan.’ ” Email from Tiemoko Coulibaly (Nov. 4, 2011, 7:11 PM), ROI at 728, ECF No. 26-7. Disputing the idea that it was his fault they did not'meet, Dr. Coulibaly emphasized that he had “never refused to meet with [LTS Fyfe] and [that he had] never refused to do what [she] requested.” Id.

D. Communications with Second-Line Supervisors (November 2011-December 2011)

A few days later, on November-7, 2011, Dr. Coulibaly wrote to Acting Division Director Ann Keller-Lally- and expressed that he was “feeling hostility” from LTS Fyfe, that he believed he was “a victim of psychological abuse, retaliation and discrimination,” and that “this is a case of intentional and negligent infliction of emotional distress to an employee.” Email from Tiemoko Coulibaly (Nov. 7, 2011,1:41 PM), ROI at 727, ECF No. 26-7. In response, Acting Director Keller-Lally provided Dr. Coulibaly with the procedures to report alleged discrimination, but she also suggested a face-to-face meeting with Dr. Coulibaly and with LTS Fyfe to discuss the conflict. Email from Ann Keller-Lally (Nov. 7, 2011, 5:01 PM), ROI at 725-26, ECF No. 26-7.

That meeting occurred the next day, on Novembér 8, 2011. See Email from Ann Keller-Lally (Nov. 9, 2011, 4:12 PM), ROI at 754-56, ECF No. 26-7 (memorializing the conversation from the meeting in writing). During the meeting, Acting Director Keller-Lally’s notes state,that she held a meeting with LTS Fyfe and Dr. Coulibaly, that Dr. Coulibaly expressed his confusion with respect to LTS Fyfe’s instructions, and that LTS Fyfe felt that her instructions were clear. See id. at 754-55. In particular, Acting Director Keller-Lally’s notes indicate that Dr. Coulibaly found LTS Fyfe’s “four P’s” method confusing, because another colleague had told Dr. Coulibaly that the method ‘Vas not particularly applicable with regard to reading lessons.” Id. at 754. According to Acting Director Keller-Lally’s notes, LTS Fyfe later in the meeting acknowledged that Dr. Coulibaly was “rightly confused.” Id. Apart from the “four P’s” method, Dr. Coulibaly also reportedly expressed that he felt “hostility” from LTS Fyfe, and that “he was sure whatever he "proposed would be rejected.” Id. at 754-55. In response, LTS Fyfe reportedly stated that her goal was to help Dr. Coulibaly to “do the best he could” and felt that she had simply “said some things that [Dr. Coulibaly] did not want to hear.” Id. at 756. According to Acting Director Kellar-Lally’s notes, LTS Fyfe ultimately “offered to drop the reading lesson plan project” if Dr. Coulibaly would attend formal trainings instead. Id. at 755-56.

The next day, Acting Director Keller-Lally sent her notes documenting the meeting to LTS Fyfe and Dr. Coulibaly. See generally id. at 754-56. She told LTS Fyfe and Dr. Coulibaly to “[p]lease feel free to respond with any remarks or corrections based on [their] recollection of what we discussed.” Id. at 754. The following week, on November 15, 2011, Dr. Cou-libaly provided voluminous comments in response to Acting Director Keller-Lally’s notes. See Email from Tiemoko Coulibaly (Nov. 15, 2011, 5:03 PM), ROI at 743-49, ECF No. 26-7. Dr. Coulibaly’s response "alleged that, during the meeting, LTS Fyfe had accused him of “ ‘discrimination’ ‘against’ her because of her ‘background’ and because her ‘former husband’ was ‘Ivorian’ (like [Dr. Coulibaly]).” Id. at 744; see also id. at 747 (alluding to a point during the meeting in which LTS Fyfe “became very emotional and ... started crying,” and in which she mentioned the Ivory Coast “and her former husband, an Ivorian”). His response also accused LTS Fyfe of “knowingly and intentionally act[ing] ... in bad faith to create false excuses to ... punish [Dr. Coulibaly],” of “retaliation,” and of “character assassination.” Id. at 745-46. Reacting to Dr. Couli-baly’s comments, LTS Fyfe asserted that his accusations had no basis, but she admitted that she “was brought to tears” during the meeting and “did ask [Dr. Cou-libaly] if he had an ax to grind against [her] because of [her] ex.” Email from Laura Fyfe (Nov. 15, 2011, 5:42 PM), ROI at 743, ECF No. 26-7.

On November 16, 2011, the day after Dr. Coulibaly and LTS Fyfe responded to Acting Director Keller-Lally’s notes, Division Director 'Debra Blake, having returned "to the office, met with Dr. Coulibaly to address his accusations. See Blake Mem. (Nov. 15, 2011), ROI at 773-74, ECF No. 26-7. In her notes documenting this conversation, Director Blake claimed that her purpose in calling the meeting was to determine “precisely what actions” Dr. Coulibaly felt were evidence of LTS Fyfe’s “discrimination and hostility.” Id. at 773. According to Director Blake, Dr. Coulibaly was initially “reluctant” to articulate specific allegations of discrimination and hostility, but he then cited the fact that LTS Fyfe’s “former husband shared the same country of origin” as Dr. Coulibaly, as well as allegations that LTS Fyfe treated Dr. Coulibaly unfairly in the way that she supervised him. See id. Director Blake shared her notes of the meeting with Dr. Coulibaly the next week. See Email from Debra Blake to Tiemoko Coulibaly (Nov. 22, 2011, 11:43 AM), ROI at 764-65, ECF No. 26-7.

The day after Dr. Coulibaly received Director Blake’s notes, Dr. Coulibaly responded with lengthy comments that expressed his views on the conversation. See Email from Tiemoko Coulibaly (Nov. 23, 2011, 9:01 PM), ROI at 764, ECF No. 26-7; Coulibaly Mem. (Nov. 23, 2011), ROI at 766-72, ECF No. 26-7. In his comments, Dr. Coulibaly repeatedly expressed that he believed that Director Blake was “simply trying to protect” LTS Fyfe: he wrote that Director Blake “had already decided to totally support” LTS Fyfe and had become “a zealous lawyer” for LTS Fyfe during the meeting. See Coulibaly Mem. (Nov. 23, 2011), RQI at 766-72:

That same day, Director Blake met with both Dr. Coulibaly and LTS Fyfe to facilitate their working relationship going forwarded. See Email from Laura Fyfe (Nov. 23, 2011, 3:12 PM), ROI at 761-62, ECF No. 26-7 (memorializing the meeting). At the meeting, .LTS Fyfe reports that she told Dr. Coulibaly that “the administration ha[d] ruled” that she would continue as Dr. Coulibaly’s supervisor, even though he had requested a change in supervisor. Id. at 762. LTS Fyfe states that she also expressed “her willingness to move forward in the supervisory role” and that she and Dr. Coulibaly “both agreed to work productively with each other.” Id. Dr. Coulibaly later emailed LTS Fyfe to clarify the procedure for changing supervisors. See Email from Tiemoko Coulibaly (Nov. 23, 2011, 4:35 PM), ROI at 761, ECF No. 26-7. LTS Fyfe responded by informing Dr. Coulibaly that “[t]he decision was made to keep [her] as [his] supervisor until at least the end of this year (December 31, 2011)” and that she had “not received approval to change [his] supervisor ... after that point.” Email from Laura Fyfe (Nov. 23, 2011, 5:33 PM), ROI at 761, ECF No. 26-7.

A few weeks later, on December 14, 2011, Director Blake and LTS Fyfe met again with Dr. Coulibaly to address a new point of contention: his alleged failure to submit required weekly syllabi for a period of three weeks. According to Director Blake, Dr. Coulibaly acknowledged that he had not submitted the weekly syllabi, but claimed that he had been too busy. Blake Mem. (Dec. 14, 2011), ROI at 787. Director Blake further reports that Dr. Coulibaly continued to allege that “he felt discriminated against and felt he was being treated' unfairly,” particularly when compared to “one other instructor who entered on duty on the same date.” Id. Dr. Coulibaly commented the next day that, at their meeting, that he had “clearly insisted on the issue of discrimination” and that he had noted “the different standards between teacher Hmimiche AitMouloud (‘Mi-miche’)” and himself. Email from Tiemoko Coulibaly (Dec. 15, 2011, 5:35 PM), ROI at 785-86, ECF No. 26-7. Dr. Coulibaly also states that he had questioned whether “Mimiche” had been held to the syllabus requirement. Id.

E. EEO Complaint (December 20, 2011)

Around the time that he was communicating with Director Blake, Dr. Coulibaly met with an Equal Employment Opportunity (“EEO”) counselor and filed an informal EEO complaint with the Department of State’s Office of Civil Rights. On December 20, 2011, Dr. Coulibaly filed a formal EEO complaint with the Office of Civil Rights, in which he alleged that FSI management had discriminated against him on the basis of race, color, and national origin and had committed “reprisal” against him. See Compl. ¶ 9; Formal Compl. of Discrimination, ROI at 62-63, ECF No. 26-l. The resulting EEO investigation generated affidavits from many of Dr. Couli-baly’s former colleagues, as well as the lengthy report of investigation that forms much of the record in this case.

F. Performance Appraisal Report (December 27, 2011)

Later in December 2011, Dr. Coulibaly received a Performance Appraisal Report (“PAR”) from LTS Fyfe that noted “several issues” with Dr. Coulibaly’s performance. LTS Fyfe noted that Dr. Coulibaly was “continuing] to attempt to repair” his performance with respect to those issues. Performance Appraisal Report (“PAR”) by Laura Fyfe, ROI at 790, ECF No. 26-7.

In response, Dr. Coulibaly sent an email to Director Blake, LTS Fyfe, and others in FSI management, in which he alleged that the PAR was “evidence of retaliation” and that Director Blake and LTS Fyfe could not “separate performance evaluation from discrimination and retaliation against” Dr. Coulibaly. Email from Tiemoko Coulibaly (Dec. 27, 2011, 5:53 PM), ROI at 788-89, ECF No. 26-7. Dr. Coulibaly’s email accused his supervisors of omitting “the important issues of discrimination and retaliation” in the PAR, given that, according to Dr. Coulibaly, “these disputes clearly influenced [their] performance report.” Id. at 789.

Director Blake responded by telling Dr. Coulibaly that he should pursue his discrimination allegations “through the proper channels” and that LTS Fyfe, as his supervisor, “reported on [his] performance as required.” Email from Debra Blake (Dec. 28, 2011, 3:10 PM), ROI at 795-96, EOF No. 26-7. She also stated that Dr. Coulibaly had “been repeatedly instructed to refrain from this line of accusations” while discussing his work performance. Id. She opined that, therefore, his continued accusations were “tantamount to insubordination.” Id. Continuing his disagreement with Director Blake, Dr. Coulibaly responded by stating that “[t]here is no insubordination when a teacher denounces discrimination and retaliation,” and he reiterated that the PAR “was simply discrimination and retaliation.” Email from Tiemo-ko Coulibaly to Debra Blake (Dec. 28, 2011, 4:09 PM), ROI at 795, ECF No. 26-7.

G. Event for FSI’s French Language and Culture Instructors (December 29, 2011)

The next day, on December 29, 2011, Dr. Coulibaly attended an event for FSI’s French Language and Culture instructors. See Casteuble Mem. (Jan. 24, 2012), ROI at 815, ECF No. 26-7; see also Cazeau Aff., ROI at 1339-40, ECF No. 26-12. The parties dispute the purpose of the meeting and the nature of Dr. Coulibaly’s actions during the meeting.

Defendants adopt the position taken in a memorandum written by LTS Phillipe Casteuble, who stated that the meeting was a “training workshop provided, to all French Language and Culture Instructors” about “specifications for writing the weekly syllabi.” Casteuble Mem. (Jan. 24, 2012), ROI at 815, ECF No. 26-7; see also Mem. Supp. Defs.’ Cross-Mot. Summ. J. & Opp’n PL’s Mot. Summ. J. (“ Defs.’ Meffi..”) at'8-9, ECF No. 27 (adopting LTS Casteu-bie’s view). LTS Casteuble’s memorandum also accuses Dr. Coulibaly of “inappropriate conduct” and comments that “were off topic” during the meeting: Dr. Coulibaly allegedly “stood up and loudly began to speak about the ‘No Fear Act’ and discrimination and retaliation against [him] on the part of the French Supervisors,” and he allegedly “continued to stand up and loudly protest” despite LTS Casteu-ble’s request for Dr. Coulibaly to sit down. Casteuble Mem. (Jan. 24, 2012), ROI at 815, ECF No. 26-7.

Dr. Coulibaly, however, adopts the view of his colleague, Elder Cazeau, who also attended the meeting. See PL’s Reply at 7-8, ECF No. 32. Mr. Cazeau recalls that the meeting was merely a “section meeting that had been organized to discuss lesson plans.” Cazeau Aff., ROJ at 1339, ECF No. 26-12. Mr. Cazeau also recounts that Dr. Coulibaly “was publicly humiliated and silenced by his supervisor who told him that he could not use the meeting as a platform to air his personal issues.” Id. at 1339-40. In particular, Mr.'Cazeau states that “Dr. Coulibaly started saying that he felt discriminated against because of his lesson plan,” that Dr. Coulibaly’s supervisor “cut him off,” and that “Dr. Coulibaly remained silent” after that. Id. at 1440.' ■ ■

H. Conflict with New Supervisor Philippe Casteuble (January 2012-February 2012)

In January 2012, LTS Casteuble replaced LTS Fyfe as Dr. Coulibaly’s supervisor. See Email from Tiemoko Couli-baly (Jan. 27, 2012, 9:37 AM), ROI at -813-14, ECF No. 26-7 (indicating that LTS Casteuble’s first day as Dr. Coulibaly’s new supervisor was on January 24, 2012); Casteuble Aff., ROI at 1228, ECF No. 26-11 (indicating that Dr. Coulibaly started reporting to LTS Casteuble in January 2012). On January 24, 2012, LTS Casteuble met with Dr. Coulibaly with the expressed intention of “talk[ing] about expectations.” Email from Philippe Cas-teuble (Jan. 23, 2012, 9:55 AM), ROI at 814, ECF No. 26-7. But, during the meeting, LTS Casteuble presented Dr. Coulibaly with a memorandum that outlined an “informal counseling session” regarding Dr, Coulibaly’s conduct at the December 29, 2011 meeting and that reprimanded him for his conduct at that meeting. LTS Casteuble’s memorandum surprised Dr. Coulibaly, who had believed that the January 24 meeting “was only about expectations on teaching.” Email from Tiemoko Coulibaly (Jan. 27, 2012, 9:37 AM), ROI at 813, ECF No. 26-7. Dr. Coulibaly was further surprised by the fact that a human resources representative was present for the meeting.

That same day, LTS Casteuble emailed Dr. Coulibaly and thanked him for submitting his weekly syllabus. See Email from Philippe Casteuble (Jan. 24, 2012, 12:42 PM), ROI at 829-30, ECF No. 26-8. In his email, LTS Casteuble also asked Dr. Cou-libaly a list of questions regarding the syllabus. See id. (asking, among other things, whether “there is a theme” that Dr. Coulibaly planned to explore, and how an activity would help Dr. Coulibaly’s students “reach the professional proficiency level”).

Some time later, LTS Casteuble again brought up the issue of Dr. Coulibaly’s weekly syllabus. On February 2, 2012, LTS Casteuble emailed Dr. Coulibaly and said that, after looking at Dr. Coulibaly’s weekly syllabus, he needed “to talk about it” with Dr. Coulibaly. Email from Philippe Casteuble (Feb. 2, 2012, 2:14 PM), ROI at 820, ECF No. 26-7. LTS Casteuble suggested a meeting early the next morning. See id. Because Dr. Coulibaly “was very surprised by what happened in [LTS Cas-teuble’s] office at the meeting of January 24, 2012,” Dr. Coulibaly asked to schedule the proposed meeting to later in the day so that he could arrange for a union representative to be present. Email from Tiemo-ko Coulibaly (Feb. 2, 2012, 4:67 PM), ROI at 819, ECF No. 26-7. After confirming with his own superiors that it was appropriate for a union representative to attend the meeting, LTS Casteuble proposed a meeting on February 6, 2012 and informed Dr. Coulibaly that a union representative could attend. But the February 6, 2012 meeting ultimately did not occur: even though Dr. Coulibaly emailed LTS Casteu-ble to confirm the meeting time on February 6, LTS Casteuble claimed that, based on prior communications, he “could not know if the date and time was accepted, by [Dr. Coulibaly] and by the union representative.” -

That same day, LTS Casteuble also wrote Dr. Coulibaly a separate email that reminded Dr. Coulibaly about LTS Cas-teuble’s January 24, 2012 questions about Dr. Coulibaly’s weekly syllabus. See Email from Philippe Casteuble (Feb. 6, 2012, 8:29 AM), ROI at 829, ECF No. 26-8 (“This is a friendly reminder that as of today I have not received any response on the 14 questions I asked ....”). In response, Dr. Cou-libaly asserted that he had responded to LTS Casteuble’s questions by requesting a meeting with him, and that LTS Casteuble “never responded” to Dr. Coulibaly’s request. See Email from Tiemoko Coulibaly (Feb.' 6, 2012, 9:19 AM), ROI at 827-28 (“[A] meeting would be more appropriate to answer your T4 questions.’ ”). Dr. Couli-baly also sent a separate email to LTS Casteuble, in which he noted that all of his students had passed their recent tests, forwarded complimentary remarks from one of his students, and opined that “[n]othing [was] wrong with [his] syllabus.” See Email from Tiemoko Coulibaly (Feb. 6, 2012, 9:34 AM), ROI at 889-41, ECF No. 26-8. In light of his students’ success, Dr, Coulibaly characterized the criticisms of his syllabi as harassment. See id, (“Instead of congratulating me, you are constantly harassing me with [the] Syllabus issue as. Debra and Larua Fyfe did [for] the last 6 months.”).

Nonetheless, later that week, Dr. Couli-baly provided his answers to LTS Casteu-ble’s January 24, 2012 questions. See Email from Tiemoko Coulibaly (Feb. 10, 2012, 6:45 PM), ROI at 902-04, ECF No, 26-8. Dr. Coulibaly also requested a sample satisfactory syllabus. See id. at 904 (“I would appreciate if you could provide an example of a perfect syllabus you like so I can follow it line by line.”). Although LTS Casteuble expressed privately to Director Blake and LTS Fyfe that he found Dr. Coulibaly’s answers unsatisfactory, he later provided Dr. Coulibaly with additional feedback and a sample syllabus to reference.

The next day, Dr. Coulibaly received an email from LTS Fyfe stating that Dr. Cou-libaly had not submitted 'his required weekly syllabus. See Email from Laura Fyfe (Feb. 14, 2012, 8:59 AM), ROI at 900, ECF No. 26-8 (noting that the recipients of the email had not submitted weekly syllabi, but without making the recipients known). In response, Dr. Coulibaly stated that, because he had received LTS'Casteu-ble’s feedback too late the day before, he had been unable to submit his weekly syllabus by the deadline. Dr. Coulibaly also reiterated that the syllabus was “just a pretext” for LTS Fyfe, Director Blake, and LTS Casteuble to “harass,” to “discriminate” against, and to “retaliate against” him. Email from Tiemoko Couli-baly (Feb. 14, 2012, 10:49 AM), ROI 898-900, ECF No. 26-8. Later, LTS Casteuble explained to Dr. Coulibaly that LTS Fyfe’s message was “a mass e-mail,” intended to be a reminder and directed at several employees. See Email from Philippe Casteu-ble to Tiemoko Coulibaly (Feb. 14, 2012), ROI.at 842-43, ECF No. 26-8.

I. Absence from Work (February 2012-March 2012)

During this time, Dr. Coulibaly received treatment for his physical and ■ mental health as a result of his perceived “retaliation, harassment, [and] hostile work environment.” See Compl. ¶¶ 11-14; Letter from Willie Hamlin, M.D., to Cathy Russell (Mar. 10, 2012), Compl. Ex., ECF No. 1-1, at 1 (reporting that Dr. Coulibaly “initiated treatment for severe stress” pri- or to February 27, 2012). Dr. Coulibaly states that, on February 15, 2012, his primary care physician instructed him not to return to work and referred him to a psychiatrist. Compl. ¶¶ 12-13. Accordingly, beginning on February 15, 2012, Dr. Couli-baly did not go to work. See id. ¶ 12; Defs.’ Stmt. ¶ 62; see also Email from Philippe Casteuble (Feb. 15, 2012, 7:49 AM), ROI at 894, ECF No. 26-8.

On March 1, 2012, Director Blake informed Dr. Coulibaly of his remaining ah lowance of sick leave and annual leave: “approximately 48 hours of sick leave,” if Dr. Coulibaly were to return to work on March 2, 2012, and “about 96 hours of annual leave.” Email from Debra Blake (Mar. 1, 2012,12:19 PM), ROI at 892, ECF No. 26-8. FSI Human Resources Specialist Brian Springer also wrote to Dr. Coulibaly to explain the procedures for requesting advanced sick leave, the only type of sick leave available if Dr. Coulibaly were to exhaust his remaining sick leave hours. See Email from Brian Springer (Mar. 2, 2012, 9:26 AM), ROI at 890-91, ECF No. 26-8; see also Springer Aff., ROI at 971, ECF No. 26-9 (noting HR Specialist Springer’s position title at FSI). In response, Dr. Coulibaly took issue with the calculations: he claimed that, because the alleged “hostile work environment, the EEO discrimination and retaliation complaint[,] and [his] health issues” were “all connected,” “any fair calculation” of his hours of sick leave and annual leave should take into account the context surrounding his sickness. Email from Tiemoko Coulibaly (Mar. 1, 2012, 1:46 PM), ROI at 891-92, ECF No. 26-8. Dr. Coulibaly also told Mr. Springer that he believed that it was “unfair” that he had lost sick and annual leave, given that he was “not responsible” for his health issues, which he felt were “direct consequences of deliberate acts of retaliation and discrimination” by his managers. Email from Tiemoko Coulibaly (Mar. 2, 2012,11:49 AM), ROI at 888, ECF No. 26-8.

A few days later, LTS Casteuble emailed Dr. Coulibaly to find out when he planned to return to work and to clarify what type of leave Dr. Coulibaly intended to use while he was absent. See Email from Philippe Casteuble (Mar. 5, 2012, 4:04 PM), ROI at 887, ECF No. 26-8. Dr. Coulibaly replied that, because his absence stemmed from being sick, he would “of course use only sick leave.” Email from Tiemoko Coulibaly (Mar. 5, 2012, 5:50 PM), ROI at 886, ECF No: 26-8 (emphasis in original). Dr. Coulibaly also asserted that he should not “have to lose any day of sick leave,” because, in his view, his illness was “the direct consequence of ... several months of illegal discrimination and retaliation” against him. Id.

The next day, LTS Casteuble again wrote to Dr. Coulibaly to inform him that Director Blake had been mistaken about Dr. Coulibaly’s remaining sick and annual leave allowances; Dr. Coulibaly had in fact “ran completely out of sick leave” on February 23, 2012, and he had only “68 hours of annual leave remaining” on February 24, 2012, which would cover Dr. Coulibaly only through March 7, 2012. See Email from Philippe Casteuble (Mar. 6, 2012, 4:56 PM), ROI at 885, ECF No. 26-8. Accordingly, LTS Casteuble asked Dr. Coulibaly to immediately decide whether he would apply annual leave or leave without pay (“LWOP”) to cover his continued absence. Id. In response, Dr. Coulibaly repeatedly emphasized that LTS Casteuble could not “ignore” Dr. Coulibaly’s discrimination and retaliation allegations and accordingly should “focus on the law,” instead of trying to enforce the “administrative rules of [the] State Department.” Email from Tiemoko Coulibaly to Philippe Casteuble (Mar. 6, 2012, 6:37 PM), ROI at 882-84, ECF No. 26-8. Dr. Coulibaly stated, therefore, that he was unable to respond to LTS Casteuble’s request: “I cannot answer your email right now since I believe it is retaliation and also I don’t feel very well .... The point is I am sick because of your retaliation,, [and] I cannot go to work right now.” Id. at 883. ; .

The next day, HR Specialist Springer responded to Dr. Coulibaly’s message by commenting that “there are Federal laws that govern the official Time and Attendance of ALL Federal Employees.” Email from Brian Springer (Mar. 7, 2012, 11:00 AM), ROI at 882, ECF No. 26-8 (capitalization in original). HR Specialist Springer followed with a reminder that,, if Dr. Couli-baly did not provide a leave type for his ongoing absence, he would be considered absent without official leave (“AWOL”). See id. Dr. Coulibaly responded by stating that, “[o]f course, [he would] follow all federal laws for official Time and Attendance,” and accordingly, he wanted “to apply for advanced leave.” Email from Tiem-oko Coulibaly (Mar. 7, 2012,1:10 PM), ROI at 881, ECF No. 26-8.

But on Friday, March 9, 2012, HR Specialist Springer reminded Dr. Coulibaly that, because he had not yet submitted a request for advanced leave, he was scheduled to come to work on Monday, March 12, 2012. Email from Brian Springer (Mar. 9, 2012, 11:48 AM), ROI at 874, ECF No. 26-8. In his response, Dr. Coulibaly expressed that he was “very surprised to hear” this:- “It was very clear in our messages [over the] last few days that I cannot and I won’t come to work on Monday since I am requesting Leave without pay and Advance [sick] leave because of health issues.” Email from Tiemoko Coulibaly (Mar. 9, 2012, 2:13 PM), ROI at 873-74, ECF No. 26-8. Dr. Coulibaly also said that he had “faxed a document” to LTS Casteu-ble the day before regarding leave, and that LTS Casteuble had “confirmed by email that he [had] received it.” Id. HR Specialist Springer then explained that the leave slip that Dr. Coulibaly had submitted the day before covered only his absence “from February 13 through ... March 9, 2012,” and so Dr. Coulibaly would “need to submit another [leave] request or return to work on Monday.” Email from Brian Springer (Mar. 9, 2012, 2:56 PM), ROI at 873, ECF No. 26-8. Dr, Coulibaly, however, did not submit an additional leave request dntil March 13, 2012. £ee Email from Tiemoko Coulibaly (Mar. 13, 2012, 2:14 PM), ROI at 872-73, ECF No. 26-8 (submitting a request for advanced sick leave and for LWOP).

After receiving Dr. Coulibaly’s request for advanced sick leave land LWOP, HR Specialist Springer did not immediately process Dr. Coulibaly’s request. See Email from Brian Springer to Tiemoko Coulibaly (Mar. 13, 2012, 3:44 PM), ROI at 870-72, ECF No. 26-8. Instead, he toíd Dr. Couli-baly to “please follow [HR Specialist Springer’s] instructions to request Advanced Sick leave OR LWOP,” and noted that Dr. Coulibaly’s doctor’s' note, which Dr. Coulibaly had submitted with his request,' “include[d] some comments that shouldn’t be there.” Id. at 870 -(capitalization in original). Dr. Coulibaly, however, refused to do so, because, he felt that the doctor’s note included all the required information. See Email from Tiemoko Couli-baly (Mar. 13, 2012, 4:59 PM), ROI at 869-70, ECF No. 26-8 (noting that “the diagnosis ... and the time [he would] be incapacitated ... are in the letter”).

Dr. Coulibaly reports that he returned to work on March 26, 2012, following his psychiatrist’s : instructions. See Compl. ¶¶ 14, 17; see also Request for Advanced Sick Leave and Leave Without Pay (Mar. 26, 2012), ROI at 1326, ECF No. 26-12 (“I returned to work today March 26, 2012.”). Upon his return, he also wrote a letter to Cathy Russell, a higher-level FSI manager, in which he requested “Advanced Sick Leave for 80 hours” for the period between March 12, 2012 and March 23, 2012. See Compl. ¶ 17; Request for Advanced Sick Leave , and Leave Without Pay, ROI at 1326, ECF No. 26-12. Defendants acknowledge that Dr. Coulibaly’s managers ultimately approved Dr. Coulibaly’s leave for that period, despite HR Specialist Springer’s initial refusal to accept Dr. Cou-libaly’s doctor’s note.

Two days later, Dr. Coulibaly submitted another leave request, this time with LTS Casteuble, for eight hours of advanced sick leave on March 29, 2012. After receiving the request late in the day on March 28, 2012, LTS Casteuble emailed Dr. Coulibaly to tell him that LTS Casteuble lacked the authority to approve the leave request and Dr. Coulibaly had to request advanced sick leave with a different managing office. See Email from Philippe Casteuble (Mar. 28, 2012, 4:17 PM), ROI at 1324. LTS Casteuble informed Dr. Coulibaly that LTS Casteuble would accordingly enter the leave as “leave without pay pending ... approval” from the other managing office. Id. Dr. Coulibaly then asked LTS Casteuble to “[p]lease enter the 8 hours as leave without pay pending ... approval,” and he noted that he' would give LTS Casteuble “the memo” on the day after he returned. Email from Tiemoko Coulibaly (Mar. 28, 2012, 4:29 PM), ROI at 866, ECF No. 26-8. By “the memo,” Dr. Coulibaly later clarified that he intended to “present a new complete request” for leave. See Email from Tiemoko Coulibaly (Mar. 29, 2012, 3:40 PM), ROI at 867, ECF No. 26-8.

But, on the day for which Dr. Coulibaly requested leave (March 29, 2012), Dr. Cou-libaly reports that he received a call “at noon” from LTS Casteuble, who told Dr. Coulibaly. that the managing office had denied the request for advanced sick leave. Id. In &■ message to LTS Casteuble, Dr. Coulibaly noted that LTS Casteuble had submitted the advanced sick leave request to FSI management against Dr. Coulibaly’s wishes: “I answered by email to you [and said] that I will submit ... the request [again] on Friday with the appropriate memo and information. So I don’t understand why you presented this incomplete request to HR.” Id. Dr, Coulibaly interpreted the incident as more evidence of retaliation and discrimination against him. Id. at 867-68.

That same day, Dr. Coulibaly received an email from the secretary to FSI Associate Dean James North.'’See' Email from Faye Hartgrove (Mar: 28, 2012,11:28 AM), ROI at 865, ECF No. 26-8. The email suggested that Dr. Coulibaly’s leave .request, purportedly submitted against Dr. Coulibaly’s-wishes, had been approved. See id. But Supervisory HR Specialist Phuong Nguyen later clarified that the email addressed a different request for leave (the request for the period beginning March 12, 2012 and ending March 23, 2012). See Email from Phuong. Nguyen (Apr. 5, 2012, 2:52 PM), ROI at 858-860, ECF No. 26-8. Ms. Nguyen also explained that the email only said that the Dean’s office had allowed Dr. Coulibaly’s leave request-to-be forwarded, on to the Department of State official who held the authority to approve advanced sick leave requests; it did:not, as Dr. Coulibaly believed, mean that the Déan’s office had approved the leave request. See id.; see also Email from Faye Hartgrove (Mar. 28, 2012, 11:28 AM), ROI at 865, ECF No. 26-8' (noting thát the “original documents”'were forwarded on to another Department of State office).

J. Termination (April 2012)

The next week, on April 2, 2012, FSI issued a termination letter to Dr. Coulibaly. See Compl. ¶ 19; Letter from Catherine Russell to Tiemoko Coulibaly (Apr. 2, 2012), ROI at 864, ECF No. 26-8 (reproducing the termination letter). The letter advised Dr. Coulibaly that FSI would terminate Dr. Coulibaly’s employment on April 6, 2012, before he would have completed his one-year appointed trial period. See. Letter from Catherine Russell to Tiemoko Coulibaly (Apr. 2, 2012), ROT at 864, ECF No. 26-8. As justification, the termination letter cited Dr. Coulibaly’s “unacceptable conduct,” including “inappropriate interactions with supervisors, and ... failure to follow established procedures for requesting leave.” Id.

K. Procedural History

In April 2014, Dr, Coulibaly filed this action against Defendants, alleging that his termination violated the District of Columbia Accrued Sick and Safe Leave Act and Title I of the FMLA. See 'Compl. This Court previously dismissed-Dr. Coulibaly’s non-FMLA claim because the Civil Service Reform Act of 1978 precludes the Court from exercising jurisdiction over that claim. See Coulibaly v. Kerry, 130 F.Supp.3d 140, 146-48 (D.D.C. 2015). This Court held, however, that it has jurisdiction over Dr. Coulibaly’s claim under Title I of the FMLA. Id. at 148-50.

The parties have now filed cross-motions for summary judgment. See ECF Nos. 23, 27. After filing both his motion and reply, Dr. • Coulibaly moved twice to add new evidence to the record. See ECF Nos. 30, 35. The Court then ordered the parties to file supplemental briefing on various issues related to FMLA, and appointed Plaintiff counsel for the sole purpose of providing such briefing. See Order Directing Def. Submit Suppl. Br., ECF No. 36;- Order Appointing PI. Counsel Br. FMLA Issues, ECF No. 40. All motions are ripe for adjudication.

III. LEGAL STANDARD

A court may grant summary judgment when “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). A “material” fact is one capable of affecting the substantive outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is “genuine” if there is enough evidence for a reasonable jury to return a verdict for the non-movant. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).

The principal purpose of summary judgment is to streamline litigation by disposing of factually unsupported claims or defenses and determining whether there is a genuine need for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant bears the initial burden of identifying portions of the record that demonstrate the absence of any genuine issue of material fact. See Fed. R. Civ. P. 56(c)(1); Celotex, 477 U.S. at 323, 106 S.Ct. 2548. In response, the non-movant must point to specific facts in the record that reveal a genuine issue that is suitable for trial. See Celotex, 477 U.S. at 324, 106 S.Ct. 2548. In considering a motion for summary judgment, a court cannot make credibility determinations or weigh the evidence. See Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007). All underlying facts and inferences must be analyzed in the light most favorable to the non-movant. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505. That said, conclusory assertions offered without any evidentiary support do not establish a genuine issue for trial. See Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).

IV. ANALYSIS

A. Dr. Coulibaly’s Eligibility Under the FMLA

The Court ordered supplemental briefing on the issue of whether Dr. Coulibaly is eligible under the FMLA, and, if so, under which title. See Order Directing Def. Submit Suppl. Br.; Order Appointing PI. Counsel Br. FMLA Issues. Defendants argue that Dr. Coulibaly was “covered” by Title II of FMLA at the time he was terminated, because he was appointed to the federal service. See Defs.’ Resp. to Ct.’s Aug. 9, 2016 Order (“Defs.’ Suppl. Br.”) at 1-4, ECF No. 38. Defendants further argue that even if he was not, the time that he spent as a contractor counted toward the time-in-service requirement under Title II of FMLA, thus making him eligible for Title II but ineligible for Title I. Defs.’ Suppl. Br. at 4-5. Dr. Coulibaly maintains that he is eligible to maintain this action under Title I of FMLA. See generally Pl.’s Resp. to Ct.’s Inquiries & Suppl. Br. on FMLA Issues (“Pl.’s Suppl. Br.”), ECF No. 44. The Court will first address whether Dr. Coulibaly was “covered” by Title II at the time he was terminated and thus ineligible under Title I before turning to whether the time he spent as a contractor counts for the purpose of Title II FMLA eligibility.

In analyzing the FMLA, the Court bears in mind that “[t]he preeminent canon of statutory interpretation requires [courts] to ‘presume that the legislature says in a statute what it means and means in a statute what it says there.’ ” BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004) (alteration omitted) (quoting Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-254, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992)). Thus, the Court begins its analysis with the text, “and ends [it] there as well if the text is unambiguous.” Id.

1. Dr. Coulibaly was Not “Covered” by Title II at the Time of His Termination

Congress enacted the FMLA “to entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition.” 29 U.S.C. § 2601(b)(2); accord 29 C.F.R. § 825.101(a). The FMLA allows certain employees to take up to twelve weeks of leave for several reasons, including a “serious health condition.” See . 5 U.S.C. § 6382(a)(1)(D); 29 U.S.C. § 2612(a)(1); see also 29 C.F.R. § 825.1Í2(a)(4). To be entitled to that leave, an employee must meet certain qualifications. See 5 U.S.C. § 6381(1)(B); 29 U.S.C. § 2611(2)(A); see also 29 C.F.R; § 825.110(a).

The FMLA recognizes two groups of qualified “employees,” defined under Title I and Title II of the FMLA. Of major relevance here, Title I allows individual plaintiffs a private right of action, but Title II does not. See Chandler v. Bernanke, 531 F.Supp.2d 193, 201 (D.D.C. 2008). Both titles require qualified employees to have worked for their employers for at least one year. See 5 U.S.C. § 6381(1)(B); 29 U.S.C. § 2611(2)(A); see also 29 C.F.R, § 825.110(a).

With respect to federal employees like Dr. Coulibaly, the two categories of FMLA-qualified “employees” are mutually exclusive; Title I expressly excludes “any Federal ... employee covered under” Title II. 29 U.S.C. § 2611(2)(B)(i). Federal' employees not covered by Title II may still be covered by Title I. See 29 C.F.R. §§ 825.109(b)-(c); see also Russell v. U.S. Dep’t of the Army, 191 F.3d 1016, 1018 (9th Cir. 1999). At issue here is whether Dr. Coulibaly is “covered” by Title II, and thus ineligible to maintain this action under Title I.

The first step on the pathway to answering that question is found within Title II. Title II protects “employee[s]” facing certain life events. See 5 U.S.C. § 6382(a). To be considered an “employee” under Title II—and thus “covered” in any respect at all—an individual must meet two requirements. See id. § 6381(1). First, he must fit the definition of “employee” in § 6301 of Title V of the United States Code. Id. § 6381(1)(A). Second, he must have completed at -least twelve months of service as an employee, as defined by § 6301, Id. § 6381(1)(B). Thus, before working for twelve months, an individual can be considered an “employee” under § 6301, but not under Title II. Sec: tion 6301 incorporates the definition of “employee” in § 2105 of Title V. Section 2105 defines “employee” as

an officer and an individual who is—

(1) appointed in the civil service by one of the following acting in an official capacity—

(A) the President;

(B) a Member or Members of Congress, or the Congress;

(C) a member of a uniformed service;

(D) an individual who is an employee under this section;

(E) the head of a Government controlled corporation; or

(F) an adjutant general designated by the Secretary concerned under section 709(c) of title 32;

(2) engaged in the performance of a Federal function under authority of law or an Executive act; and

(3) subject to the supervision of .an individual named by paragraph (1) of this subsection while engaged in.the performance of the duties of his position.

5 U.S.C. § 2105 (emphasis added). So, succinctly stated, to be eligible under Title II, an individual must (1) be (a) duly appointed, '(b) engaged in the performance of a federal function, and (c) subject to supervision by an officer or an appointed individual; and (2) have completed at least twelve months in a position meeting those three requirements (appointment, engagement, and supervision). Despite their asserted differences, the parties actually seem to agree on. whether Dr. Coulibaly meets each of these requirements.

Neither side disputes that Dr. Cou-libaly was appointed, .engaged in the performance of a federal function, and subject to applicable supervision when he began his two-year appointed term as a French instructor. See Defs.’ Suppl. Br. at 3; Pl.’s Suppl. Br. at 2. The word “appointment” is, of course, not synonymous with employment, See Costner v. United States, 665 F.2d 1016, 1020-23 (Ct. Cl. 1981) (“An abundance of federal function and supervision will not make up for the lack of an appointment.”).- Appointment requires “an authorized appointing officer who takes an action that reveals his awareness he is making an appointment in the United States civil service, and action by the appointee denoting acceptance.” Watts v. Office of Pers, Mgmt., 814 F.2d 1576, 1580 (Fed. Cir. 1987); see also Nat’l Treasury Emps. Union v. Reagan, 663 F.2d 239, 242 (D.C. Cir. 1981) (“For more than one hundred and seventy-five years, the rule as to when an appointment takes place has been clear: ‘when the last act to be done by the [appointing authority] was performed ....’” (quoting Marburg v. Madison, 5 U.S. (1 Cranch) 137, 157, 2 L.Ed. 60 (1803))); Curran v. Office of Pers. Mgmt: Bureau of Ret., Ins., & Occup. Health, 566 F.Supp. 1511, 1514 (D.D.C. 1983), aff'd, 735 F.2d 617 (D.C. Cir. 1984) (“Federal employment must ultimately depend on the execution of some ‘last-act’ ceremony of ‘appointment (citation omitted)).

Nor does either side contend that Dr. Coulibaly was “appointed” to any position before he accepted his appointment as á French instructor. See Defs.’ Suppl. Br. at 3; Pl.’s Suppl. Br. at 2. As both parties acknowledge, Dr. Coulibaly’s appointment began on June 19, 2011. See, e.g., Defs.’ Stmt. ¶ 8.

Finally, neither side argues that Dr. Coulibaly served in his appointed position for twelve months. FSF terminated Dr. Coulibaly’s appointment on April 6, 2012, making the total time he served in an appointed position less, than ten months. See Letter from, Catherine Russell to Tiemoko Coulibaly (Apr. 2, 2012), ROI at 864, ECF No. 26-8. Thus, although Dr. Coulibaly’s appointment may have been for a term of more than twelve months, Dr. Coulibaly did not actually complete twelve months of service. See 5 U.S.C. § 6381(1)(B).' Thus, breaking Title II of FMLA down into its component parts, the parties agree that Dr. Coulibaly was never eligible under Title II, because the relevant definition of “employee” required him to, among other things, serve in his appointed position for at least a year. See 5 U.S.C. § 6381(1). .

Nonetheless, Defendants argue that Dr. Coulibaly was covered by Title II for three reasons. First, they argue that Dr. Couli-baly was eligible under Title II because he met the definition of employee set forth in 5 U.S.C. § 2105. See Defs.’ Suppl. Br. at 2-3. This argument overlooks the fact that Title II does not simply adopt the definition of employee from 5 U.S.C. § 2105, but rather incorporates it as one of two requirements for its own definition. See 5 U.S.C. § 6381(1). In addition to meeting the definition of “employee” under § 2105, an individual must “complete[ ] at least 12 months of service as [such] an employee” to be eligible under Title II. See id. As set forth above, Dr.. Coulibaly did not complete the necessary 12 months of service.

Second, Defendants argue that because Dr. Coulibaly’s term of appointment was for more than one year, his only potential FMLA eligibility would be under Title II. See Defs.’ Mem, at 18. In support of this argument, Defendants cite to two cases suggesting that a federal employee with an appointment of a year or more falls under Title II: Moynihan v. Gutierrez and Sutherland v. Bowles. See Defs.’ Mem. at 16-18. Neither of these cases applies here.

In Moynihan v. Gutierrez, the plaintiff sued under Title II, not Title I. 2007 WL 2885342, *3 (E.D. Mo. Sept. 27, 2007). As a result, the Eastern District of Missouri emphasized that the plaintiff was “a Title II employee, and the parties [did] not dispute this classification.” Id. Just as this Court recognized earlier in this case, the Moynihan court ultimately held that Title II does not provide ■ a private right of action. Seé Coulibaly, 130 F.Supp.3d at 151 n.12; Moynihan, 2007 WL 2885342, at *3. Because Dr. Coulibaly brings his FMLA claim under Title I, not Title II, Moynihan is inapplicable.

Sutherland v. Bowles, No. 94-71570, 1995 WL 367937 (E.D. Mich. Jan. 17, 1995), is also inapplicable. See Defs.’ Mem. at 17-18 (citing Sutherland).' There, the plaintiff argued that, as a temporary employee, he fell into an exception under Title II of the FMLA, which provides that “any individual employed on a temporary or intermittent basis” is not an “employee” under Title II of the FMLA. Sutherland, 1995 WL 367937, at *2. The Sutherland court concluded that the plaintiff had demonstrated only “that he held a temporary appointment, not that he was a temporary employee for the purposes of the FMLA.” Id. The Sutherland court concluded that Title II of the FMLA applied to the plaintiff there, because the plaintiff had not shown that he was a temporary employee. Id. Sutherland did not address the situation where a plaintiff, like Dr. Coulibaly, is appointed to a term of over a year, but serves less than a year of that term. See id. Here, by contrast, no one argues that Dr. Coulibaly is excluded from Title II coverage because he is a temporary or intermittent employee. Dr. Coulibaly simply argues that he is not covered by Title II because he did not complete twelve months as an appointed employee, and thus did not meet the twelve-month time-in-service requirement.

Defendants’ final argument relating to whether Dr. Coulibaly is “covered” by Title II is that Dr. Coulibaly’s claim that he was “a federal employee for over thirteen years for purposes of the FMLA” would “push[ ] him into Title II and out of Title I.” Defs.’ Mem. at 18-20; accord Defs.’ Reply at 5-7. Defendants acknowledge that Dr. Coulibaly was not appointed until June 19, 2011, but note that he originally joined FSI in 1999 and worked as a contractor for “a little under twelve years” before his appointment. See Defs.’ Stmt. ¶¶ 1-5; see also Compl. ¶ 4; De Launay-Fogg Aff., ROI at 1875, ECF No. 26-12. During this period, however, FSI did not employ Dr. Coulibaly through a formal appointment, but instead “under BPAs lasting around one year each.” Defs.’ Stmt. ¶2; see, e.g., BPA Contract Modification, Pl.’s Mot. Summ. J. Ex. A, ECF No. 23-1, at 111-22. Defendants nonetheless contend, in the alternative from their arguments above, that the Court should include Dr. Coulibaly’s time as a contractor in the calculation of Dr. Coulibaly’s time-in-service under Title II’s employee definition. Defs.’ Mem. at 18-20; Defs.’ Reply at 5-7.

In support of their argument, Defendants cite Ibrahim v. Defense Language Institute Foreign Language Center, which held that time spent working under a series of contracts can count toward Title II “employment” in certain circumstances. Defs.’ Mem. at 19-20; 2015 WL 7272750, *3 (N.D. Cal. Nov. 18, 2015). But in Ibra-him the plaintiff did not. argue that he failed to meet the requirements for an employee under Title II. See 2015 WL 7272750, at *3. Instead, he claimed that, like the plaintiff in Sutherland, as a contractor, he fell into the Title II exception for individuals “employed on a temporary or intermittent basis.” Id. (citing 5 U.S.C. § 6381(1)). In fact, Ibrahim neither cites to nor discusses the statutory requirements of appointment, function, or supervision under Title II. See generally id. Defendants do not provide any authority or evidence suggesting that, in light of Title II’s appointment, function, and supervision requirements for “employees,” an individual’s prior non-appointment work could be considered “employment” within the meaning of Title II. See Defs.’ Mem. at 18-21; Defs.’ Reply at 5-7. The Court thus con-eludes that, because'Dr. Coulibaly was not an appointed “employee” under Title II for at least twelve months, Title II of the FMLA does not apply to him.

2. Genuine Issues of Material Fact Remain As to Whether Dr. Coulibaly Is Eligible Under Title I of the FMLA

The remaining issue with respect to FMLA eligibility is whether Dr. Coulibaly meets the time-in-service requirement under Title I. Plaintiff contends that he does, because as a matter of “economic reality” he was an employee when he was an independent contractor from 1999 until his two-year appointment. Pl.’s Suppl. Br. at 7-9.

As discussed above, to be considered an “eligible employee” under Title I, an individual must have been employed “for at least 12 months by the employer with respect to whom leave is requested” and must have worked “for at least 1,250 hours of service with such employer.” 29 U.S.C. § 2611(2)(A). The “employer” from whom the employee requests leave “includes any ‘public agency,’ ” which is defined in part as “the Government of the United States” or “any agency of the United States.” 29 U.S.C. § 2611 (4)(A)(iii); id. § 203(x).

The word “employee” has “the same meaning[]” as under 29 U.S.C. § 203(e), which defines “employee” for purposes of the Fair Labor Standards Act (“FLSA”). 29 U.S.C. § 2611(3); see also 29 C.F.R. § 825.110(c). As this Court discussed in its previous opinion, courts “have determined ‘employee’ status under the FLSA by looking to ‘economic reality’ rather than ‘technical concepts’ and examining ‘the extent to which typical employer prerogatives govern the relationship between the putative employer and employee.’” Coulibaly, 130 F.Supp.3d at 151 (quoting Morrison v. Int'l Programs Consortium, Inc., 253 F.3d 5, 11 (D.C. Cir. 2001)). In short, although Dr. Coulibaly’s time spent working as a contractor -at FSI before his appointment does not qualify as “employment” under Title II, it may still count under Title I if in “economic reality” he was an employee of the government. Compare Morrison, 253 F.3d at 11 (requiring courts to “look at the totality of the circumstances” under the FLSA “employee” definition,, which Title I incorporates), with Costner, 665 F.2d at 1020 (rejecting the “totality of the circumstances” approach for Title II’s “employee” definition).

To determine whether an individual is an employee as' a matter of economic reality, the Morrison court held that courts must “look at the totality of the circumstances” and consider factors such as “whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or -conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.” Morrison, 253 F.3d at 11 (quoting Henthorn v. Dep’t of Navy, 29 F.3d 682, 684 (D.C. Cir. 1994)). Although the existence of an explicit contractual relationship may be relevant under this test, it is far from dispositive'. See Redd v. Rubin, 34 F.Supp.2d 1, 6 (D.D.C. 1998); see also Kimbrel v. DEA Corp., 2016 WL 7799340, at *5 (E.D. Tenn. Aug. 2, 2016). Indeed, “[n]o one factor standing alone is dispositive.” Morrison, 253 F.3d at 11. - “The existence and degree of each factor” “is a question of fact, while the legal con-elusion to be drawn from these facts— whether workers are employees or independent contractors—is a question of law.” McGuiggan v. CPC Int’l, Inc., 84 F.Supp.2d 470, 480 (S.D.N.Y. 2000) (quoting Brock v. Superior Care, Inc., 840 F.2d 1054, 1059 (2d Cir. 1988)).

Defendants do not dispute that Dr, Cou-libaly’s service after his June 19, 2011 appointment applies toward Title, I’s time-in-service requirements. See Defs.’ Mem. at 16-21 (failing to make any argument about w