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Julie Beaver v. John Mchugh

January 9, 2012

JULIE BEAVER, PLAINTIFF,
v.
JOHN MCHUGH, SECRETARY OF THE ARMY, DEFENDANT.



The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge

MEMORANDUM OPINION

This is a Title VII case, involving allegations of national-origin discrimination by a federal employer-the Department of the Army. Before the Court is defendant's Motion for Summary Judgment, Def.'s Mot. Summ. J. [22], Feb. 11, 2011, and plaintiff's Cross-Motion for Partial Summary Judgment. Pl.'s Cross-Mot. Summ. J. [21], Feb. 11, 2011. Having carefully considered the motions, the oppositions, the replies, the entire record in this case, and the applicable law, the Court will grant defendant's Motion for Summary Judgment and deny plaintiff's Cross-Motion for Summary Judgment. A review of the background of this case, the governing law, the parties' arguments, and the Court's reasoning in resolving those arguments follows.

I.FACTUAL BACKGROUND

Dr. Julie Beaver, plaintiff in this case, is a physician, born and educated in China. Pl.'s SMF [21-10] ¶1. In 2006, after working in various jobs across the United States, she applied for a statistician position with the Department of Clinical Investigations ("DCI") at the Walter Reed Army Medical Center. Def.'s SMF [22-2] ¶6. DCI is an organization that supports and conducts medical research for the benefit of the Medical Center's patients. Id. ¶1.

Dr. Beaver speaks English with an accent. Pl.'s SMF [21-10] ¶1. In February 2007, DCI hired her over several other candidates, including a Korean who spoke with an accent and a few others who spoke English without an accent. Def.'s SMF [22-2] ¶8. The record shows that DCI is a diverse place when it comes to employment of foreign-born individuals, and it must be a common experience to hear English spoken there with an accent. Three of DCI's four departments are led by persons from other countries, including persons from Taiwan, Egypt, and Jamaica. Id. ¶¶3, 4. 25% of its employees are from outside of the U.S. Id. The position Dr. Beaver accepted was previously held by a person from Taiwan and a person from Nigeria, both of whom spoke English with an accent. Id. ¶5. Dr. Audrey Chang, who is herself Taiwanese and speaks English with an accent, hired Dr. Beaver knowing that she was from mainland China. Id. ¶9.

As a new federal employee, Dr. Beaver's position was probationary for the first year. Id.

¶10. Her position required frequent consultations with DCI's researchers, who would need her statistical expertise to carry out their research projects. Id. ¶12. Her position also required her to teach courses in statistics. Id. The position description created for her position reflects these expectations. Among other duties, she was required to train and educate researchers in various areas, including in the application of statistical methods, the design of research projects, and the use of statistics software. Def.'s Ex. 16 at 83, 83--84. She was required to engage in consultations with researchers and to communicate and interpret those researchers' statistical results. Id.

While employed by DCI, Dr. Beaver received some formal training to enhance her skills, at DCI's expense, including training on a software program used in statistical analysis. Def.'s SMF [22-2] ¶15. However, DCI does not offer English language training-nor any training, for that matter, to acquire a skill that DCI expects its applicants to already possess at the time that it offers them a job. Id. ¶16.

Several months passed without Dr. Beaver's teaching a statistics course. However, in July 2007, she was scheduled to teach a course on the use of statistics software to a group of non-statisticians. Id. ¶18. As the date of that course approached, she had some concerns about her English language abilities, writing to Dr. Chang that her main concern was her pronunciation, and that she planned to practice her English with another DCI employee to prepare for her upcoming class. Id.

At least for the first half of Dr. Beaver's probationary period, Dr. Chang provided a positive assessment of Dr. Beaver's work. Id. ¶21. Since this evaluation covered the period from when Dr. Beaver first began working for DCI (February 2007) to July 31, 2007, it may have included at least some consideration by Dr. Chang of Dr. Beaver's performance as a teacher in the course that began in July 2007, although the record is unclear. Id.; see Pl.'s Ex. C [24-3]

1. However, in August 2007, Dr. Chang performed another assessment specifically of Dr. Beaver's teaching skills, where she reported that Dr. Beaver "[n]eeds practical assistance" with respect to her "[a]bility to teach and communicate [] statistics to investigators." Pl.'s SMF [21-10] ¶3. Clearly the low ratings on this August 2007 assessment reflected Dr. Chang's concern that Dr. Beaver's communication skills were adversely affecting her performance as a teacher. Def.'s SMF [22-2] ¶20.

This poor assessment was followed by several months during which various DCI employees reported difficulties understanding Dr. Beaver. One such person was Dr. Mary Klote, who was chair of the Clinical Investigations Committee ("CIC"). Id. ¶24. One of Dr. Beaver's duties was to report to that committee on a regular basis. Id. Dr. Klote found Dr. Beaver's "accent" "very difficult" to understand. Id.; Def.'s Ex. 19 at 136. Dr. Klote's predecessor also had "great difficulty understanding" Dr. Beaver. Def.'s Ex. 1 [32-1] 1. These two employees were not alone in having problems understanding Dr. Beaver. For example, Dr. Klote received a report from Dr. Maureen M. Peterson, who also complained of having difficulty understanding Dr. Beaver. Def.'s SMF [22-2] ¶¶32, 33. Other employees reported similar problems to Dr. Chang and Colonel McQueen. In October 2007, an investigator needing a statistical consultation told Dr. Chang that she couldn't understand Dr. Beaver, so Dr. Chang referred that investigator to DCI's other statistician. Id. ¶25. By November 2007, Dr. Klote told Colonel McQueen about Dr. Beaver's communication difficulties, and reported that other DCI employees had similar problems understanding her. Id. ¶26. By that time, Dr. Beaver had begun teaching another statistics course, so Colonel McQueen personally attended a class, and found himself unable to understand her. Id. ¶27.

Dr. Beaver's course had seventeen students, and several of those students reported that communication problems interfered with their ability to learn. In evaluations submitted at the end of the course, two students reported that she was an ineffective speaker; another noted that she "was very difficult to understand," id. ¶28; another wrote that her "accent, at times, [] interfer[ed] with my understanding of the information." Id. Dr. Chang testified that she has never seen a DCI instructor rated so poorly on such evaluations. Id.

At the request of Colonel McQueen, Dr. Chang polled other DCI employees about Dr. Beaver's communication abilities. One person told Dr. Chang that it was "very hard and difficult to understand [Dr. Beaver]," and that "investigators just got lost." Id. ¶30.*fn1 Others, including Dr. Sarathi Komanduri and Dr. Arn Eliasson, reported similar issues. Id. Dr. Chang also received reports that problems with Dr. Beaver's communication abilities were having an impact on DCI apart from the impact on the students in her courses. The workload of DCI's only other statistician, Robin Howard, had increased significantly because "several investigators returned to see [Ms. Howard] for statistical assistance after meeting with [plaintiff] unsuccessfully because of difficulty in understanding [plaintiff's] advice for their projects." Id. ¶31.

On January 4, 2008, near the end of her one-year probationary period, Dr. Beaver attended a meeting with Dr. Chang and Colonel McQueen, where she was informed that she would be removed from federal service because her communication abilities were below what was required for the job. Pl.'s SMF [24-14] ¶5. She later requested an extension of her probationary period so that she could enroll in an English language training program. Id. Although Colonel McQueen was initially receptive to Dr. Beaver's request, he looked into whether her probationary period could be extended under the applicable regulations, concluding that it could not. Def.'s SMF [22-2] ¶36. On January 29, 2008, Dr. Beaver again met with Colonel McQueen alongside Dr. Klote, where she requested English-language training, while also claiming that the Food and Drug Administration and the National Institutes of Health provide such training to their employees. Pl.'s SMF [24-14] ¶9. To this Dr. Klote replied, "we are not the FDA." Id. The next day, Colonel McQueen made the final decision to fire Dr. Beaver. Id. ¶10. It is undisputed that, while various persons involved in Dr. Beaver's termination made references to the unintelligibility of Dr. Beaver's "accent," no one said anything regarding her national origin. Def.'s SMF [22-2] ¶41.

On March 12, 2008, Dr. Beaver filed a formal complaint of discrimination with her agency. Def.'s Ex. 18 at 1. In a one-count charge, she alleged that she was discriminated against by being terminated because she was Chinese. Id. Although her complaint contained a box that could have been checked if Dr. Beaver had alleged a discriminatory denial of training, only the "termination" box was checked. Id. at 3. There is nothing in the record indicating that Dr. Beaver ever sought to amend her administrative complaint to add a denial-of-training claim.

In August 2008, the Department of Defense's Civilian Personnel Management Service, Investigations and Resolutions Division, held a fact-finding conference concerning Dr. Beaver's complaint. See Def.'s Ex. 19 at 98. The investigator's comments during the conference confirm that the sole matter under investigation was "why the Complainant was terminated" and whether that termination was based upon national origin. Id. at 117. The investigator considered testimony from Dr. Beaver (who represented herself and asked questions of the other witnesses), Dr. Chang, Colonel McQueen, and Dr. Klote. The transcript provided to the Court shows some passing references to Dr. Beaver's requests for English-language training, see id. at 114, but the focus of the conference was on Dr. Beaver's charge of discriminatory termination. It must be noted that the transcript also provides insight regarding the question of whether Dr. Beaver actually had serious problems communicating in English, as the following selections from her testimony show:

Q: Okay. How would you describe your relationship with Dr. Chang before that meeting? Say up through September.

A: Everything since (indiscernible) no problem. I do whatever she ask me to do and, and she happy about my work. When I show her my (indiscernible) she said, Julie, all a good, all a good point. And in fact, in April and Dr. Chang told me, Julie (indiscernible) chief of biometrics (indiscernible). I would like you to training become a chief of biometric (indiscernible). So you know I'm -- so I e-mail to my former supervisor, Dr. Morris . . . in MD (indiscernible). I said (indiscernible) and she said she going to train me as a chief. I told Dr. Morris, I'm not interested in any chief. I said (indiscernible) to do my job, promoted GS-14. I have, I have the e-mail also. Id. at 111.

Q: . . . When you first started working here, your standards said that you would do about 200 consultations, is that right, statistical consultations?

A: Not 200. (indiscernible) the PI can come to me at least one time, one through five times.

Q: Uh-huh.

A: The project, project, not the, not the, not the -- Dr. Chang (indiscernible) to come consultation come.

Q: Okay.

Id. at 116. These exchanges are typical of Dr. Beaver's testimony during the fact-finding conference.

After this conference, the investigator found in favor of defendant. Dr. Beaver then enlisted the assistance of counsel, and pursued an appeal of the investigator's determination, requesting a hearing before an administrative judge of the Equal Employment Opportunity Commission ("EEOC"). Following some discovery, and the denial of the parties' cross-motions for summary judgment, the administrative judge scheduled an evidentiary hearing. However, in November 2009, Dr. ...


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