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Chien v. Sullivan

United States District Court, District of Columbia

April 25, 2018

JOHN J. SULLIVAN, acting Secretary of State, [1] Defendant.


          Amit P. Mehta United States District Judge.


         Plaintiff Josephine Chien is employed by the U.S. Department of State as an Assistant Regional Security Officer. Based on events that allegedly began with her initial assignment in the Foreign Service in 2010 and continued during subsequent assignments in various U.S. offices and embassies abroad, Plaintiff filed this lawsuit against Defendant Secretary of State under Title VII of the Civil Rights Act of 1964, alleging race and sex discrimination, hostile work environment, and retaliation. Several motions to dismiss and amended complaints later, Defendant now moves for partial dismissal of Plaintiff's Second Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons stated below, the court denies Defendant's Second Renewed Motion for Partial Dismissal.


         A. Factual Background

         Plaintiff Josephine Chien, a Taiwanese-American woman, has been employed by the U.S. Department of State since 2009 and currently serves as an Assistant Regional Security Officer (“ARSO”) within the Foreign Service. Pl.'s Second Am. Compl., ECF No. 19 [hereinafter SAC], ¶¶ 1, 9; see Def.'s Second Renewed Mot. for Partial Dismissal, ECF No. 21, Mem. in Supp. of Def.'s Second Renewed Mot. for Partial Dismissal, ECF No. 21-1 [hereinafter Def.'s 2d Renewed Mot.], at 2. Because Plaintiff's allegations of discrimination, hostile work environment, and retaliation span over six years during her various Foreign Service assignments, and only some of those allegations are relevant to Defendant's present motion, [2] the court provides only a brief summary of Plaintiff's employment history here, referring to her specific allegations in further detail below as necessary.

         Los Angeles Assignment: In March 2010, Plaintiff was assigned to a satellite office of State's Los Angeles Field Office. See SAC ¶ 10. While in L.A., Plaintiff was supervised by Michael Lodi, who Plaintiff alleges discriminated against her by frequently screaming at her in a disparaging and demoralizing manner and by refusing her training and overseas assignments requests. See Id. ¶¶ 10-12. She also alleges that Lodi retaliated against her by threatening to block her transfer to the main field office and by giving her an unwarranted negative performance evaluation. See Id. ¶¶ 12-18. Plaintiff remained in the L.A. satellite office under Lodi's supervision until January 2011. Id. ¶¶ 15, 19.

         Benghazi, Libya Assignment: After Plaintiff was transferred out of the L.A. satellite office, she received a temporary duty assignment in Benghazi, Libya in May 2011. Id. ¶ 19. Plaintiff alleges that she was the only female agent on staff in Benghazi and that her new supervisors discriminated against her by denying her duty rotations and giving male agents preferential treatment and better assignments. See Id. ¶¶ 19-24. She further alleges that her male colleagues harassed and discriminated against her by making “routine and mundane requests to her on housekeeping issues.” Id. ¶¶ 24-25.

         Islamabad, Pakistan Assignment: In February 2012, Plaintiff was assigned as an ARSO to the U.S. Embassy in Islamabad, Pakistan, id. ¶ 26, where she remained for approximately one year, see Id. ¶ 48. Plaintiff claims that she was harassed and/or discriminated and retaliated against in various ways during her assignment in Pakistan, but her allegations generally fall into one of four categories. First, Plaintiff alleges that in June 2012, her supervisor at the time, John Krajicek, reassigned to a male agent the decision-making responsibilities for one of the programs that Plaintiff was tasked with overseeing. See Id. ¶¶ 28-31. Plaintiff also avers that Krajicek refused to communicate with her directly regarding her duties and programs, and that Krajicek did not do so with other agents. Id. ¶ 31.

         Second, Plaintiff claims that she was “blackballed or retaliated against” after she broke a “handshake” agreement with State in April 2012 concerning an assignment to Dubai. See Id. ¶¶ 49-50; see also Id. ¶ 49 (explaining that Plaintiff had to negate her handshake agreement after a human resources officer informed her that the agency could not provide assistance to her then-boyfriend by including him as a member of household on the travel authorization due to Sharia law in Dubai). Plaintiff alleges that after the Dubai incident, she was not given the same opportunity as other officers when she re-bid for another foreign assignment in or around April 2012. See Id. ¶¶ 52-53. In that regard, Plaintiff also contends that State imposed “a different standard for males versus females and/or . . . Asians” and non-Asians. See Id. ¶ 53-56. Plaintiff alleges that during the summer of 2012, when she was bidding on her next assignment to begin in 2013, she was told to apply only for domestic positions. See Id. ¶¶ 45-46, 49-52. By contrast, Plaintiff says that similarly situated male agents who broke their handshake agreements still received foreign assignments. Id. ¶ 53. Relatedly, Plaintiff alleges that on at least two occasions, she was denied a foreign assignment in favor of a non-Asian man and woman, respectively, who were less senior than she was. See Id. ¶¶ 54-56. In the end, Plaintiff was ultimately given a future domestic assignment in the Bureau of Conflict and Stability Operations in Washington, D.C., scheduled to begin sometime after her Pakistan assignment. See Id. ¶ 47.

         Third, Plaintiff alleges that in January 2013, as part of her five-year background investigation update, she was interviewed by investigators about prior “hook[ ] up[s]” and her family in Taiwan. See Id. ¶¶ 32-38.[3] Soon thereafter, Plaintiff learned that, as part of the investigation, the investigators had contacted her colleagues and asked them about whether Plaintiff “had ever complained about work place harassment, a hostile work environment, discrimination or retaliation.” See Id. ¶ 39. Plaintiff's white male colleague, however, was not asked any such questions during his five-year background investigation update. See Id. ¶ 42. Plaintiff therefore claims that the “extra scrutiny” she received was in retaliation for her protected EEO activities. Id. ¶ 43.

         Finally, Plaintiff alleges that in late January 2013, about a month before she left Pakistan, her career development officer instructed her to re-bid for her next assignment because the aforementioned Bureau of Conflict and Stability Operations position in Washington, D.C. had been eliminated. Id. ¶ 48. Plaintiff placed several foreign bids, but was informed that she would not receive a foreign assignment and, once again, was encouraged to consider only domestic assignments. See Id. ¶¶ 48, 51. In particular, Plaintiff alleges that after the Regional Security Officer at the Embassy in Islamabad offered to call a senior career development and assignment officer about Plaintiff's bidding status, he told her that “it all came down to Dubai, ” id. ¶¶ 45, 48, presumably a reference to Plaintiff breaking her handshake agreement to serve in Dubai.

         Washington, D.C. Assignment:[4] Following her assignment in Pakistan, which ended in or around late February 2013, see SAC ¶ 48, Plaintiff continued to bid for “forward assignments” in foreign countries, to no avail, see Id. ¶ 59. Plaintiff alleges that she applied for roughly 30 positions between June 2013 and September 2013, and that she was denied all such positions because of discrimination and retaliation. Id. ¶ 59; see Id. at 13-14 (listing positions); see also Id. ¶ 57 (alleging that in August 2013, after she was denied 18 foreign assignments, Plaintiff was told that “it ha[d] to do with something out of L.A.”).

         Jakarta, Indonesia Assignment: From September 2014 to August 2016, Plaintiff served as an ARSO in Jakarta, Indonesia, where she was supervised by Robert Castro, a Mexican-American male. See Id. ¶ 60. As discussed below, the following allegations concerning Plaintiff's assignment in Jakarta led Plaintiff to file a separate administrative complaint and are generally referred to by both parties as the “new allegations” in the Second Amended Complaint.

         On October 9, 2015, Plaintiff volunteered for a temporary duty assignment (“TDY”) at the U.S. Embassy in Malaysia. Id. ¶¶ 61-62. Several weeks later at a staff meeting, however, Plaintiff learned that one of her white male colleagues received the TDY. Id. ¶ 65. Moreover, while Plaintiff applied to approximately 26 TDYs in other foreign countries during her Jakarta assignment, Plaintiff alleges that “other non-Asian and non-female ARSOs” were selected for these positions instead of her. Id. ¶¶ 66-67. Plaintiff claims that Defendant discriminated and retaliated against her by denying her these assignments, “resulting in the loss of monetary benefits.” Id. ¶ 67; see also Id. (alleging that “TDYs are a factor in promotions and higher pay and are included as a factor in . . . employee evaluation reports”).

         In addition, Plaintiff alleges that Castro created a hostile work environment and engaged in retaliatory acts against her. Id. ¶¶ 68, 87. For example, Plaintiff alleges that Castro prevented her from performing her duties when supervising embassy guards in November 2015, see Id. ¶ 69, and attempted to make an unofficial request from an Embassy nurse regarding Plaintiff's sick leave in February 2016, see Id. ¶ 70. Further, Plaintiff alleges that after she filed a discrimination claim against Castro on March 7, 2016, see Id. ¶ 72, Castro retaliated against her by changing her work hours, placing her on AWOL status for one hour, assigning her to “duty week” without notifying her, restricting her leave requests, and deducting hours from her paycheck. Id. ¶¶ 73-86; see also ¶¶ 81-82 (noting that with respect to her last-minute assignment to “duty week, ” no other male or non-Asian ARSO was treated similarly).

         B. Procedural Background

         On August 3, 2016, Plaintiff filed suit against Defendant under Title VII of the Civil Rights Act of 1964, [5] alleging facts that generally correspond with those set forth in paragraphs 1 through 59 of the Second Amended Complaint and asserting claims of race and sex discrimination, hostile work environment, and retaliation. Compare Compl., ECF No. 1, with SAC. These facts pertain to events that began with Plaintiff's initial assignment in March 2010 and end with the denial of her bids for foreign assignments in September 2013. See Id. In her original complaint, Plaintiff alleged that she exhausted her administrative remedies as to these claims by filing her first administrative complaint (case number DOS-F-038-13). See Compl. ¶¶ 47-54.

         On January 24, 2017, Defendant moved for partial dismissal of Plaintiff's Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Def.'s Mot. for Partial Dismissal, ECF No. 8, Mem. in Supp. of Def.'s Mot. for Partial Dismissal, ECF No. 8-1 [hereinafter Def.'s Mot.]. Defendant argued, among other things, that Plaintiff failed to timely exhaust her administrative remedies with respect to her Title VII claims that arose prior to September 18, 2012 (i.e., more than 45 days after Plaintiff first contacted an EEO counselor), and that Plaintiff's retaliation claim based on the her security clearance investigation was non-justiciable under U.S. Department of Navy v. Egan, 484 U.S. 518 (1988). See Def.'s Mot. at 2-3, 8-14. Defendant did not, however, seek dismissal of Plaintiff's claims relating to her allegation that she was “denied forward assignments for positions submitted in June 2013, July 2013, August 2013, [and] September 2013.” Id. at 11 n.4 (quoting Compl. at 11); accord Def.'s 2d Renewed Mot. at 6.

         Plaintiff filed her First Amended Complaint on February 14, 2017, correcting some of the deficiencies identified by Defendant. See Am. Compl., ECF No. 10 [hereinafter FAC]. For example, Plaintiff conceded that the court “only has jurisdiction over her discrimination and retaliation claims post September 18, 2012.” Pl.'s Opp'n to Def.'s 12(b)(6) Mot., ECF No. 11, at 1; accord FAC at 3 n.2. Nevertheless, Plaintiff maintained that “insofar as [she] . . . alleged acts for a hostile work environment, so long as a single act falls within the statutory period, ‘the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.'” FAC at 3 n.2 (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114, 117 (2002)); accord SAC at 3 n.4. Because Plaintiff filed her First Amended Complaint within 21 days of Defendant's motion to dismiss, and therefore filed the amended pleading as a matter of right, see Fed. R. Civ. P. 15(a)(1)(B), the court denied Defendant's motion for partial dismissal as moot. See Minute Order, Feb. 15, 2017.

         Defendant renewed his motion on March 30, 2017. See Def.'s Renewed Mot. for Partial Dismissal, ECF No. 13, Mem. in Supp. of Def.'s Renewed Mot. for Partial Dismissal, ECF No. 13-1 [hereinafter Def.'s Renewed Mot.]. In this motion, Defendant reiterated his argument that Plaintiff's retaliation claim based on the security clearance investigation was non-justiciable under Egan. See Id. at 2, 6-9. He also contested Plaintiff's attempt to resuscitate her hostile work environment claim with respect to acts that occurred prior to September 18, 2012, which she conceded she failed to timely exhaust. See Id. at 2-6. Specifically, Defendant argued that Plaintiff's time-barred claims did not form “part of the same actionable hostile work environment claim” as the claims that were timely raised and thus could not be considered for purposes of determining liability. See Id. Defendant further asserted that the only actions that allegedly occurred after September 18, 2012, i.e., the denial of foreign assignments, [6] did not rise to the level of a hostile work environment. See Id. at 4-5.

         Before the court could rule on Defendant's renewed motion, Plaintiff filed a motion for leave to file a Second Amended Complaint. See Mot. for Pl.'s Second Am. Compl., ECF No. 17. The court ultimately granted Plaintiff's motion and denied Defendant's renewed motion for partial dismissal without prejudice. See Minute Order, Aug. 8, 2017. Accordingly, on August 8, 2017, Plaintiff filed her Second Amended Complaint. See SAC. The Second Amended Complaint adds allegations concerning incidents that occurred during Plaintiff's assignment in Jakarta, Indonesia, and which gave rise to discrimination, hostile work environment, and retaliation claims pressed by Plaintiff in a second administrative complaint (case number DOS-0188-16). See SAC at 1, 15-20. Plaintiff's Second Amended Complaint, which is now the operative complaint in this matter, asserts violations under Title ...

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