Mohammad v. General Consulate of the State of Kuwait in Los Angeles, No. 20-56255 (9th Cir. 2022)
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Plaintiff was a Syrian national living in California as a legal permanent resident and is now a U.S. citizen. She is not and has never been a Kuwaiti national. In 2014, Plaintiff entered into a written employment contract with the Consulate to work as a secretary. Plaintiff alleges that the Consulate created a hostile work environment by harassing, discriminating, and retaliating against her on the basis of her gender, religion, and Syrian national origin, violated various wage and hour laws, and breached her employment contract. Claiming that she was constructively terminated from her employment, she filed suit.
The Ninth Circuit affirmed the district court’s denial of the Consulate’s motion to dismiss. The commercial activity exception to the Foreign Sovereign Immunities Act, 28 U.S.C. 1605(a)(2), applied. The employment of diplomatic, civil service, or military personnel is governmental and the employment of other personnel is commercial unless the foreign state shows that the employee’s duties included “powers peculiar to sovereigns.” The district court properly exercised its discretion in finding that Plaintiff, who was employed as an administrative assistant, was not a civil servant and that her duties did not include “powers peculiar to sovereigns.”
Court Description: Foreign Sovereign Immunities Act The panel affirmed the district court’s order denying the motion of the State of Kuwait’s Consulate in Los Angeles to dismiss an employment discrimination action based on sovereign immunity under the Foreign Sovereign Immunities Act. The panel affirmed the district court’s holding that the commercial activity exception to the FSIA applied. The panel reaffirmed the holding of Holden v. Canadian Consulate, 92 F.3d 918 (9th Cir. 1996), that the “employment of diplomatic, civil service or military personnel is governmental,” and clarified that the employment of other personnel is commercial unless the foreign state shows that the employee’s duties included “powers peculiar to sovereigns.” The panel held that the district court properly exercised its discretion in finding that plaintiff, who was employed as an administrative assistant ** The Honorable Frederic Block, United States District Judge for the Eastern District of New York, sitting by designation. MOHAMMAD V. GEN. CONSULATE OF KUWAIT 3 by the Consulate, was not a civil servant and that her duties did not include “powers peculiar to sovereigns.”
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