MEMORANDUM OPINION AND ORDER
Amit
P. Mehta United States District Judge.
I.
INTRODUCTION
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.
II.
BACKGROUND
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 ...