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Mokhtar v. Kerry

United States District Court, D. Columbia.

March 13, 2015

NADIA MOKHTAR, Plaintiff,
v.
JOHN F. KERRY, in his official capacity as Secretary of State, Defendant

NADIA MOKHTAR, Plaintiff, Pro se, Lorton, VA.

For HILLARY RODHAM CLINTON, JAMES BERNHARDT, TAGELSIR ELRAYAH, MAHA BOHSALI, PHILIP CASTEUBLE, SADAN SADRI, Defendants: Damon William Taaffe, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.

MEMORANDUM OPINION Re Document No.: 87

RUDOLPH CONTRERAS, United States District Judge.

Granting Defendant's Motion for Summary Judgment

I. INTRODUCTION

Plaintiff Nadia Mokhtar, an employee at the United States Department of State (the " Department" ), brings this lawsuit pro se [1] against John F. Kerry, in his official capacity as Secretary of the Department, alleging violations of Title VII of the Civil Rights Act of 1964 (" Title VII" ) and the Age Discrimination in Employment Act (" ADEA" ) during the course of her employment. Now before the Court is the Department's motion for summary judgment, through which the Department seeks judgment in its favor on the grounds that, first, Mokhtar failed to administratively exhaust many of her discrimination and retaliation claims before filing suit, and second, those remaining claims that were exhausted fail on the merits. For the reasons explained below, the Court will grant the Department's motion. In doing so, the Court denies some relief requested within the Department's administrative exhaustion analysis, but ultimately, the Court concludes that none of Mokhtar's remaining claims survive summary judgment on the merits.

II. FACTUAL BACKGROUND

Mokhtar, a sixty-seven year-old female, was at all relevant times, and remains today, a GG-11 Language and Culture Instructor at the Foreign Service Institute (" FSI" ) of the State Department in the School of Language Studies, Near Eastern Central, and South Asian Languages Division. See Report of Investigation (" ROI" ) Excerpts, ECF No. 87-3, Ex. A at 24-25, 59, 122-23. Dr. Tagesir Elrayah, a GG-14 Supervisory Language Training Specialist, has been Mokhtar's first-line supervisor since October 2006. See id. at 58-59. Dr. James Bernhardt, a GG-15 Division Director, has been Mokhtar's second-line supervisor since 1993, except for a period from approximately 2002 to 2006, see id. at 96, which was when Mokhtar was assigned to work overseas as a Deputy Consular Officer. See Mokhtar Depo., ECF No. 87-4, Ex. B at 14:2-25. Mokhtar returned to work as a Language and Culture Instructor at the FSI's School of Language Studies after her overseas assignment concluded. See id.

A. Individualized Refresher Training Plan And Recertification

According to the description for the Language and Culture Instructor position, Mokhtar's responsibilities include " administer[ing] proficiency tests, both in the capacity of a tester and examiner[.]" ROI Excerpts, ECF No. 87-3, Ex. A at 124. Also according to the position description, Mokhtar's role as a Language and Culture Instructor requires her to possess " [s]kill in administering FSI language proficiency tests." Id. at 125. While Mokhtar was working overseas as a Deputy Consular Officer, the " procedures, policies, and practices" for administering language proficiency examinations changed. See id. at 60, 84. In addition, between 2008 and January 2011, the FSI required that all testers and examiners get recertified, which Mokhtar had not done. See id. at 71-73; Mokhtar Depo., ECF No. 87-4, Ex. B at 132:9-15.

In March 2008, Philippe Casteuble, an employee in the School of Language Studies' Continuing Testing and Training (" CTT" ) unit who was responsible for validating test scores as a quality control measure, observed that Mokhtar, when serving as an examiner during several FSI language proficiency tests between May 2007 and March 2008, scored the tests in a way that was contrary to the new procedures in place at that time. See ROI Excerpts, ECF No. 87-3, Ex. A at 60, 78, 85-86; see also Casteuble Depo., ECF No. 87-5, Ex. C at 11:5-11:25; Hoffman Depo., ECF No. 87-6, Ex. D at 21:5-8. For example, Mokhtar used non-standard testing practices as an examiner, and her testing decisions did not support the test scores that she was issuing. See ROI Excerpts, ECF No. 87-3, Ex. A at 78, 85. As a result, the test scores that Mokhtar had issued could not be validated by Casteuble. See id. at 78, 85-86. According to Dr. Elrayah, Mokhtar's scoring errors continued even though Casteuble had " met with her and discussed the [scoring] procedures after the initial tests." Id. at 78.

On March 14, 2008, during a meeting attended by Mokhtar and Dr. Elrayah, Casteuble recommended that Mokhtar attend refresher training courses before she administrated any more tests. See id. In response, Mokhtar insisted that she did not want to attend the same training courses as new FSI employees and contractors, but she agreed to attend Individualized Refresher Training courses as an alternative. See id. at 85; Mokhtar Depo., ECF No. 87-4, Ex. B at 130:6-14, 142:9-16, 147:24-148:1. As a result, CTT personnel sent an examiner and tester Individualized Refresher Training plan to Mokhtar and discussed the plan with her. See ROI Excerpts, ECF No. 87-3, Ex. A at 77-80, 87; Mokhtar Depo., ECF No. 87-4, Ex. B at 142:9-16. As of June 2010, however, Mokhtar had not completed the examiner portion of the Individualized Refresher Training plan. See ROI Excerpts, ECF No. 87-3, Ex. A at 88; Mokhtar Depo., ECF No. 87-4, Ex. B at 146:11-21. Thus, on June 14, 2010, CTT personnel informed Dr. Elrayah that Mokhtar had not complied with, nor responded to, the examiner training plan that was sent to her in March 2008. See ROI Excerpts, ECF No. 87-3, Ex. A at 84, 88.

On July 14, 2010, Mokhtar signed a mid-year performance review form that was presented to her by Dr. Elrayah in which she agreed to obtain both the testing and language examiner recertifications before the end of the ratings year in December 2010. See id. at 61, 118; Mokhtar Depo., ECF No. 87-4, Ex. B at 117:23-118:9. Mokhtar had completed the testing recertification in April 2010, but she did not complete the examiner recertification by the end of 2010. See ROI Excerpts, ECF No. 87-3, Ex. A at 60; Mokhtar Depo., ECF No. 87-4, Ex. B at 119:21-120:5. For example, Mokhtar failed to properly administer an exam under observation as part of the examiner recertification, see Mokhtar Depo., ECF No. 100-1, Ex. 3 at 87:17-88:20, and she made other examiner errors as well. See Mokhtar Depo., ECF No. 87-4, Ex. B at 148:16-22. Mokhtar has acknowledged that in 2010, she was expected to perform testing and examining as part of her job duties and for her end-of-year performance review. See id.; Mokhtar Depo., ECF No. 100-1, Ex. 3 at 149:1-18.

B. Non-Selection For Unspecified Promotions And Volunteer Positions

On June 15, 2010, Mokhtar mentioned to Dr. Elrayah during a meeting and in a follow-up email that she was not selected for two management positions for which she had applied, though the names of those positions were not provided. See ROI Excerpts, ECF No. 87-3, Ex. A at 82. In addition, Mokhtar complained to Dr. Elrayah that she was not respected by the section and that she had been humiliated through the denial of her promotions for these unspecified positions. See id. Mokhtar also expressed during this meeting that she was more qualified for the positions than those whom were selected. See id. In her deposition, Mokhtar stated that she applied for two unnamed positions outside the FSI sometime in 2007 and 2008, and that she has not applied for any other positions since then. See Mokhtar Depo., ECF No. 87-4, Ex. B at 179:23-180:20, 190:3-20. Additionally, Mokhtar was denied the opportunity to take a volunteer position in Iraq in 2008.[2] See Mokhtar Depo., ECF No. 100-1, Ex. 3 at 24:9-23, 170:1-8.

C. Consular Training Module Project

Around August and September 2010, Mokhtar began working on a consular training module project in which she attempted to prepare a training module that would be used to teach the Egyptian Arabic dialect. See ROI Excerpts, ECF No. 87-3, Ex. A at 41-56. Mokhtar was not assigned this module project by anyone at the FSI, but rather came up with the idea on her own. See Mokhtar Depo., ECF No. 100-1, Ex. 3 at 28:1-4. Her tasks for this project included preparing the content and setting up audio and video recordings. See id. at 28:6-10; ROI Excerpts, ECF No. 87-3, Ex. A at 53; Mokhtar Aff., ECF No. 100-1, Ex. 4 at ¶ 9. Before Mokhtar could complete the project, however, FSI received authorization to simultaneously develop uniform consular training modules for all Arabic dialects. See Bohsali Depo., ECF No. 87-7, Ex. E at 12:8-13:1. FSI then started a new development project for a consular module that was designed for multiple dialects, and FSI also cancelled the development of Mokhtar's Egyptian Arabic-specific dialect module, which did not follow the same design as the multi-dialect module. See id. An Egyptian Arabic-specific module project was restarted a few months later with Dalia Abdelmaguid in charge. See Mokhtar Depo., ECF No. 100-1, Ex. 3 at 36:8-18, 37:7-10.

D. Confrontation With A Student And Failure To File A Report

In December 2010, Mokhtar was involved in a verbal altercation with a School of Language Studies student regarding a classroom reservation. See ROI Excerpts, ECF No. 87-3, Ex. A at 92-93. Mokhtar and the student later resolved the matter through a mediation session. See Mokhtar Depo., ECF No. 87-4, Ex. B at 166:4-7, 167:21-168:4. Following this incident, the student informed Dr. Elrayah that Mokhtar had missed two language consultation appointments. See ROI Excerpts, ECF No. 87-3, Ex. A at 89-91; Mokhtar Aff., ECF No. 100-1, Ex. 4 at ¶ 5. On January 4 and January 7, 2011, Dr. Elrayah asked Mokhtar to provide him with a report of her learning consultation meetings with students in 2010, including the number of meetings she scheduled, conducted, and missed with each of the students who were assigned to her as their learning consultant. See ROI Excepts, ECF No. 87-3, Ex. A at 91. Dr. Elrayah explained that this report would be considered as part of Mokhtar's performance evaluation for the 2010 ratings year. See id. As of January 20, 2010, Mokhtar had not provided the report to Dr. Elrayah. See id. at 89-91.

E. 2010 Performance Evaluation

On January 26, 2011, Dr. Elrayah issued Mokhtar's 2010 performance evaluation, which rated Mokhtar as " Not Successful" in two " critical performance" elements: demonstrating " job knowledge" and " interpersonal skills and communication." Id. at 111, 114. According to the evaluation form, a " Not Successful" rating is appropriate when " [t]he quality and quantity of the employee's work under this element are not adequate" and " [t]he employee's work products fall short of requirements." Id. at 111. Because she received " Not Successful" performance ratings, Mokhtar received an overall, " summary level" rating of " Not Successful" for the 2010 ratings year. Id. at 116.

In Dr. Elrayah's narrative summary for the 2010 performance evaluation, he provided the following reasons for his rating decisions: " Mokhtar did not keep good track of her consultees ... and poorly communicated with her supervisor in this matter" ; " Mokhtar was re-certified as [a] tester, and started toward an examiner re-certification[, but] [s]he missed some scheduled tests during the year and did not get her recertification as [an] examiner before the end of 2010, as stipulated in her mid-year review" ; there " were concern[s] about the interpersonal skills and communication level of [Mokhtar] during this rating year[, and] [s]he missed some consultation sessions with her students without rescheduling or talking with the students" ; and Mokhtar " did not keep complete records of her consultees, and did not respond in [a] timely manner to her supervisor's requests to provide [a] complete consultation report that reflects scheduled, conducted, and missed [Learning Consultation] sessions." Id. at 115.

After receiving the evaluation, Mokhtar submitted a " request for a higher level review by the reviewing official," and Dr. Bernhardt then reviewed the performance evaluation. See id. at 117. On February 16, 2011, Dr. Bernhardt approved the " Not Successful" ratings, explaining in his comments: " We expected Mokhtar to complete her recertification as an examiner. She did not do that. Her work as a language consultant and her record keeping for that job were also less than successful." Id.

F. Failure To Receive An Award For Work During The 2010 Ratings Year

The FSI's policy regarding discretionary performance awards provides that such awards are intended " to provide appropriate incentives and recognition for employees to encourage and reward outstanding performance," and " it is essential that monetary awards be given only to those employees who are exceptionally deserving." Id. at 94. Neither Dr. Elrayah nor Dr. Bernhardt nominated Mokhtar for an award based on her performance during the 2010 ratings year. See id. at 66, 104. Dr. Elrayah explained that he did not nominate Mokhtar because her " performance in [2010] was not successful." Id. at 66. Similarly, Dr. Bernhardt explained that " [a]wards are not automatic and are not entitlements[,]" and " [i]t is not likely that an award would have been [given] to Mokhtar ... even if Dr. Elrayah had written a nomination for her since Mokhtar's Performance was rated 'Unsuccessful' for the previous rating year." Id. at 104, 106. Dr. Bernhardt also noted that the FSI's " award committee often verifies performance ratings when considering awards and has been known to turn down awards when the ratings are low." Id. at 106. Thus, Mokhtar did not receive an award for her work during the 2010 ratings year when the awards were announced on July 20, 2011. See id. at 103.

G. Procedural History: Administrative Process And Civil Complaint

On January 13, 2011, Mokhtar initiated contact with an Equal Employment Opportunity (" EEO" ) counselor, and on March 2, 2011, she filed a formal EEO complaint. See id. at 1-2, 5. In her EEO complaint, Mokhtar checked the boxes for discrimination based on age and reprisal. See id. at 2. In the space provided to explain how she was discriminated against, Mokhtar discussed her " Not Successful" performance ratings and her inability to complete the consular module project she had been authoring. See id.

On May 13, 2011, the Department, through its Office of Civil Rights, issued a letter to Mokhtar accepting the following claims for investigation (the " acceptance-of-claims letter" ):

Because of your age ... and reprisal (prior protected EEO activity), you were discriminated against when:
1. You were issued a " Not Successful" rating on your 2010 performance evaluation; and
2. You were subjected to a hostile work environment characterized by, but not limited to, false accusations.

Id. at 16. On August 15, 2011, in response to correspondence from Mokhtar dated July 14, 2011, the Department issued a second letter in which it accepted a third claim for investigation:

3. As an act of reprisal, you were discriminated against when you did not receive awards on July 20, 2011.

Id. at 21. An administrative investigation was conducted between March 2, 2011, and February 1, 2012, and a Report on Investigation was sent to Mokhtar in a letter dated February 22, 2012. See Final Agency Decision, ECF No. 87-8, Ex. F at 2. The Department issued a Final Agency Decision on September 26, 2012, concluding that Mokhtar had " not established her claims of discrimination" or hostile work environment. Id. at 8.

On October 24, 2012, Mokhtar filed a complaint in this Court asserting various allegations about her time at the Department.[3] See generally Compl., ECF No. 1. Although the statutory bases for her claims are somewhat unclear, the Court is cognizant of the need to " liberally construe[]" the complaint because Mokhtar is a pro se plaintiff. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). As such, the Court finds that Mokhtar is asserting the following statutory claims for relief: (1) age discrimination under the ADEA based on discrete acts; (2) reprisal under Title VII and the ADEA based on protected activity; and (3) hostile work environment under Title VII and the ADEA.

III. LEGAL STANDARD

Summary judgment may be granted " if 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Holcomb v. Powell, 433 F.3d 889, 895, 369 U.S.App.D.C. 122 (D.C. Cir. 2006). A fact is " material" if it is capable of affecting the substantive outcome of the litigation. Liberty Lobby, Inc., 477 U.S. at 248; Holcomb, 433 F.3d at 895. A dispute is " genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Holcomb, 433 F.3d at 895. When Rule 56 is invoked, the moving party has the initial burden of demonstrating the absence of a genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When the moving party does not bear the burden of persuasion at trial, its burden " may be discharged by 'showing' -- that is, pointing out to the district court -- that there is an absence of evidence to support the nonmoving party's case." Id. at 325.

Once the moving party has met its burden, the nonmoving party, to defeat the motion, must designate " specific facts showing that there is a genuine issue for trial." Id. at 324 (citation omitted). Though courts must view this evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor, see Grosdidier v. Broad. Bd. of Governors, Chairman, 709 F.3d 19, 23-24, 404 U.S.App.D.C. 189 (D.C. Cir. 2013), the nonmoving party must show more than " [t]he mere existence of a scintilla of evidence in support of" his position -- " there must be evidence on which the jury could reasonably find for [the nonmoving party]." Anderson, 477 U.S. at 252. The nonmoving party, moreover, " may not rest upon mere allegation or denials of his pleading but must present affirmative evidence showing a genuine issue for trial." Laningham v. U.S. Navy, 813 F.2d 1236, 1241, 259 U.S.App.D.C. 115 (D.C. Cir. 1987) (internal citation and quotation marks omitted).

Of particular relevance here, this Court has explained that " [s]ummary judgment for a defendant is most likely when a plaintiff's claim is supported solely by the plaintiff's own self-serving, conclusory statements." Bonieskie v. Mukasey, 540 F.Supp.2d 190, 195 (D.D.C. 2008) (citations omitted). That is because " conclusory allegations" and " unsubstantiated speculation," whether in the form of a plaintiff's own testimony or other evidence submitted by a plaintiff to oppose a summary judgment motion, " do not create genuine issues of material fact." Id. at 200 n.12 (internal citation and quotation marks omitted); Sage v. Broad. Publ'ns, Inc., 997 F.Supp. 49, 53 (D.D.C. 1998) (" Conclusory allegations made in affidavits opposing a motion for summary judgment are insufficient to create a genuine issue of material fact." ).

Finally, although the pleadings of a pro se party are to be " liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers," Erickson, 551 U.S. at 94 (internal citation and quotation marks omitted), " [t]his benefit is not ... a license to ignore the Federal Rules of Civil Procedure[.]" Sturdza v. United Arab Emirates, 658 F.Supp.2d 135, 137 (D.D.C. 2009) (citations omitted). Accordingly, in the context of Rule 56, a " pro se plaintiff must meet his burden of proving that there exists a genuine dispute as to a material fact to survive a motion for summary judgment." [4]Neuman v. United States, No. 13-CV-0719, 70 F.Supp.3d 416, 2014 WL 4922584, at *4 (D.D.C. Sept. 30, 2014) (citations omitted); see also Parr v. Ebrahimian, No. CV 07-1718, 70 F.Supp.3d 123, 2014 WL 4828198, at *2 n.2 ...


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