Mohammad v. General Consulate of the State of Kuwait in Los Angeles, No. 20-56255 (9th Cir. 17 March 2022) — no sovereign immunity for a consulate's clerical employee's claims

COURT. Rawlinson and Callahan JJ. and Block D.J. (sitting by designation); opinion by Judge Callahan; decided without oral argument. Appeal from the Central District of California (Fitzgerald J.). Affirmed.

FACTS. The plaintiff, a Syrian national (now a US citizen) and never a Kuwaiti national, was employed by the Consulate from April 2014 under a written contract as a secretary. She alleges a hostile work environment and discrimination on grounds of sex, religion and Syrian national origin, wage and hour violations and breach of contract, and constructive dismissal effective 1 September 2017. She brought 23 claims in the Los Angeles Superior Court in September 2018; the Consulate removed the case and moved to dismiss on immunity.

HOLDING. The court reaffirmed Holden v. Canadian Consulate (9th Cir. 1996): employment of diplomatic, civil-service or military personnel is governmental; employment of other personnel is commercial "unless the foreign state shows that the employee's duties included 'powers peculiar to sovereigns'" (Saudi Arabia v. Nelson, 1993). The district court was entitled to find that she was clerical staff, not a civil servant: her application described her as "administrative assistant"; all non-diplomatic staff received health insurance; she typed, filed, answered telephones and helped with Arabic translation, was not the personal secretary of any diplomat, and never entered the room where confidential material was kept. The Consulate's argument that Kuwait's own definition of civil service should apply failed because it offered no evidence of such a definition. Exposing a clerical employee to confidential matters "does not" make her a diplomat or civil servant. The request for further jurisdictional discovery was refused.

USE IN A REPORT: a published appellate authority on the immunity of Kuwaiti missions in US employment claims. The allegations of discrimination were not tried in this ruling and should be cited as allegations.

The ruling is on immunity only; the discrimination claims are the plaintiff's allegations and were not decided here. It is a useful authority where the question is whether a Kuwaiti diplomatic or consular post can claim immunity from a locally engaged employee's claims in the United States: the answer depends on the employee's actual duties, and the post bears the burden of proving sovereign functions with evidence.