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CHUNG-CHI LU v. WOODS

July 13, 1989

DR. CHUNG-CHI LU, Plaintiff,
v.
ALAN WOODS, Administrator, Agency for International Development, Defendant


Charles R. Richey, United States District Judge.


The opinion of the court was delivered by: RICHEY

CHARLES R. RICHEY, UNITED STATES DISTRICT JUDGE

 The plaintiff, Dr. Chung-Chi Lu, is a Foreign Service Officer with the Agency for International Development ("AID"). Dr. Lu was born in Taiwan, and came to the United States in 1966; at the time of Dr. Lu's emigration, he spoke no English. He now speaks English, but with a concededly heavy accent. Dr. Lu claims in this action that AID, by referring to his accent in several different employee evaluations, and by otherwise treating him in a disparate manner, has discriminated against him on the basis of national origin in violation of sections 703(a) and 717 of the Civil Rights Act of 1964, as amended (the "Act"), 42 U.S.C. §§ 2000e-2(a), 2000e-16. Dr. Lu also claims that AID has effectively retaliated against him for bringing various administrative complaints, and has thus violated section 704(a) of the Act, 42 U.S.C. § 2000e-3(a).

 The Court conducted a two-day bench trial of Dr. Lu's claims on February 15-16, 1989. On the basis of the evidence adduced in that proceeding, the Court concludes that Dr. Lu has failed to prove by a preponderance of the evidence that AID intentionally discriminated against him on the basis of national origin, or that he was the object of retaliation. The Court therefore grants judgment in AID's favor.

 FACTUAL BACKGROUND AND ALLEGATIONS

 Dr. Lu was born in Taiwan, and is of Chinese descent. He came to the United States in 1966, at the age of 30. He holds a Ph.D. in Agricultural Economics, obtained from Iowa State University in 1973. From 1973 to 1980, Dr. Lu held a variety of consultive and academic positions as an agricultural economist, including stints with the World Bank and the Organization of American States. Dr. Lu joined AID in 1980, working with the Agricultural and Rural Development Division of AID's Office of Technical Resources. Dr. Lu joined AID as a foreign service officer, and was transferred to Dhaka, Bangladesh in 1984. Dr. Lu was compensated at the FS-2 level upon joining AID, and has been compensated at the FS-2 level during his entire tenure with the agency.

 Dr. Lu alleges in this action that his upward progress at AID since 1984 has been hindered because of his national origin. More specifically, he complains that AID officials have consistently discriminated against him in the employee evaluation process, and that this discrimination has caused him not to be promoted from FS-2 to FS-1. He alleges that AID officials have repeatedly skewed the process against him because he is Chinese, with the result of denying him the promotions and other career benefits to which he feels he is entitled.

 Dr. Lu alleges that the first instance of discrimination occurred in 1985. In Dr. Lu's Employee Evaluation Report ("EER") for that year, prepared by one of his supervisors in Dhaka, Hans Peterson, Dr. Lu received a generally favorable review. The 1985 EER extolled Dr. Lu's ability to conduct multi-national operations, and noted in particular Dr. Lu's sensitive and effective management of a major joint Japanese-Bangladeshi-United States agricultural project. The 1985 EER noted Dr. Lu's Japanese language ability as a valuable skill. However, the 1985 EER also made reference to difficulties that Dr. Lu experienced with English, both oral and written. Apparently as a result of these latter references (particularly given the otherwise positive tone of the EER) Dr. Lu's performance for 1985 was rated as "satisfactory," rather than "superior" or "outstanding." The record indicates that during the relevant period, approximately 2.5% of AID employees received ratings of "satisfactory" or below.

 Dr. Lu's "satisfactory" rating for 1985 caused him to be referred to AID's Performance Standards Board ("PSB"). *fn1" The PSB is a tribunal established to evaluate those employees deemed to be "relatively less competitive" than others in their class. *fn2" Such employees are referred to the PSB from AID's Selection Board, which is generally responsible for evaluating and ranking AID employees on the basis of their EERs. If an employee is referred to the PSB from the Selection Board, the PSB must make a determination as to whether the employee should be released, or, if not, whether the employee's "within grade" pay increase should be granted or denied.

 The PSB that considered Dr. Lu's performance in 1985 found, "based on the limited data in the file," that Dr. Lu "only marginally" met the standards of his class. It found that "his performance has not demonstrated the program relevance and breadth which AID requires in agricultural economists." As a result, while the PSB recommended that he receive the normal pay increase, it "strongly urged" that Dr. Lu not receive tenure. *fn3" Dr. Lu did not receive tenure in 1985. *fn4"

 Dr. Lu finds national origin discrimination in 1985 in two respects: (1) the reference to his English language difficulties in his 1985 EER, and (2) the fact that the PSB made a tenure recommendation, which, according to Dr. Lu, it was not authorized to do. *fn5" Further, he finds retaliation in the PSB's reference to the "limited data in the file." According to Dr. Lu, his file was rather bare because, pursuant to a 1984 Conciliation Agreement between AID and Dr. Lu, certain materials (past EER's) were expunged from his employee file. The Conciliation Agreement followed a 1984 suit by Dr. Lu in this Court that also alleged national origin discrimination. *fn6" Dr. Lu contends that the PSB's denial of tenure, to the extent that it was based on the "limited" nature of his file, effectively punishes him on account of the relief secured in the Conciliation Agreement, and thus constitutes illegal retaliation.

 As for 1986, Dr. Lu again complains of references to English language problems in his EER for that year. The author of Dr. Lu's 1986 EER, Alan Hurdus, noted that "although English is not his first language, Dr. Lu is nonetheless able to communicate adequately," and that "he has some weaknesses with communication skills." *fn7" As for Dr. Lu's written English, Hurdus stated that "although his written materials sometimes require minor editing, his ideas are presented logically and with conviction." The reviewer for Dr. Lu's 1986 EER, Hans Peterson, in evaluating the fairness of Hurdus' review, stated that "Dr. Lu's weakness in perfect use of English, both written and verbal, has . . . been noted." *fn8" Dr. Lu's 1986 EER rated his performance as "superior," and strongly recommended that he receive tenure. Dr. Lu did receive tenure in 1986.

 Along with the references to his English language problems, however, Dr. Lu complains that his "superior" rating is inadequate when compared to the "outstanding" rating obtained in 1986 by one of Dr. Lu's colleagues in Dhaka, Kevin Rushing. in particular, Dr. Lu argues that Rushing's 1986 EER contained no review of Rushing's writing skills. According to Dr. Lu, Rushing's writing skills are, in fact, deserving of criticism. Dr. Lu sees this alleged discrepancy -- the inflation of Rushing's 1986 EER alongside the deflation of Dr. Lu's 1986 EER -- as reflecting discrimination on the basis of national origin.

 With regard to 1987, Dr. Lu again argues that a reference to his English language skills -- specifically Hurdus' comment that Dr. Lu should "continue to strengthen his writing and oral skills" -- reflects national origin discrimination. *fn9" He also complains of the fact that while his rater, Hurdus, recommended him for promotion in 1987, his review, Peterson, did not. As a result, he was not promoted in 1987, as he thought he should have been, from FS-2 to FS-1. Dr. Lu also points to the fact that Hurdus received a letter from the Selection Board criticizing the 1987 EER that he authored for Dr. Lu as vague and nonspecific, *fn10" while at the same time receiving a letter commending the 1987 EER that he prepared for Kevin ...


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