United States District Court, District of Columbia
G. Sullivan United States District Judge
Wu Xiaofeng (“Ms. Xiaofeng”), proceeding pro
se, brings this employment discrimination lawsuit
against Defendant Michael R. Pompeo, in his official capacity
as the Secretary of the United States Department of State
(the “Secretary”) under Title VII of the Civil
Rights Act, 42 U.S.C. § 2000e, et seq.,
claiming that her supervisors in the State Department's
Chinese Section of the Foreign Service Institute
(“FSI”) refused to promote her because of her
national origin. Ms. Xiaofeng, a United States citizen born
in China, contends that her position as an instructor never
required her to speak perfect English. But her supervisors
allegedly discriminated against her based on her accent,
created a hostile work environment, and retaliated against
her for reporting the discrimination and harassment.
before the Court are Ms. Xiaofeng's objections to
Magistrate Judge G. Michael Harvey's Report and
Recommendation (“R&R”), which recommends that
this Court grant in part and deny in part the Secretary's
motion to dismiss the amended complaint. See
generally R&R, ECF No. 21. Upon consideration of the
R&R, Ms. Xiaofeng's objections, the Secretary's
response to those objections, and the relevant law, the Court
adopts Magistrate Judge Harvey's R&R and
GRANTS IN PART and DENIES IN
PART the Secretary's motion to dismiss.
factual background in this case, which is set forth in the
R&R, will not be repeated in full here. See
R&R, ECF No. 21 at 2-8. The Court adopts and incorporates
Magistrate Judge Harvey's thorough recitation of the
facts. See id.
Xiaofeng, a Chinese-born United States citizen and native
Mandarin Chinese speaker, has over twenty-five years of
experience teaching Mandarin Chinese. See, e.g.,
Def.'s Ex. 1, ECF No. 12-2 at 19; Def.'s Ex. 2, ECF
No. 12-2 at 24. Having earned two graduate degrees, she
worked for the State Department's FSI in Arlington,
Virginia for nearly twenty years. See Def.'s Ex.
5, ECF No. 18-5 at 3; see also Def.'s Ex. 2, ECF
No. 12-2 at 24. Ms. Xiaofeng served as a Language and Culture
Instructor in FSI's Chinese Section. See
Def.'s Mem. of Points & Authorities in Support of
Def.'s Mot. to Dismiss (“Def.'s Mem.”),
ECF No. 12-1 at 2; see also Def.'s Ex. 1, ECF
No. 12-2 at 3, 19. Her position was at a GG-11 level. Compl.,
ECF No. 1 at 5.
failing to receive a GG-12 level position, Ms. Xiaofeng
lodged an informal complaint with the State Department's
Office of Civil Rights (“OCR”) in October 2009.
See Def.'s Ex. 1, ECF No. 12-2 at 8-10; see
also Def.'s Ex. 4, ECF No. 12-2 at 39. When a new
GG-12 level position became available, she applied for the
vacancy and withdrew her informal complaint. See
Def.'s Ex. 1, ECF No. 12-2 at 8-10. In January 2010, she
learned that she was not hired for the position. Id.
at 8. Thereafter, Ms. Xiaofeng contacted an equal employment
opportunity (“EEO”) counselor, and she
participated in mediation with the State Department that did
not resolve her issues. See, e.g.,
Def.'s Mem., ECF No. 12-1 at 4; Def.'s Ex. 2, ECF No.
12-2 at 23-27; Def.'s Ex. 3, ECF No. 12-2 at 32.
Ms. Xiaofeng's EEO Complaints
April 2010 and March 2014, Ms. Xiaofeng filed four formal EEO
complaints with OCR. See, e.g., Am. Compl., ECF No.
5 at 2; Def.'s Ex. 4, ECF No. 12-2 at 38-39 (Apr. 2010
Formal Compl.); Def.'s Ex. 5, ECF No. 18-5 at 1-6 (Mar.
2011 Formal Compl.); Def.'s Ex. 3, ECF No. 18-3 at 1-5
(Sept. 2013 Formal Compl.); Def.'s Ex. 9, ECF No. 18-9 at
1-4 (Mar. 2014 Formal Compl.). In her first EEO complaint,
she avers that she was discriminated against based on her
national origin and accent. Def.'s Ex. 4, ECF No. 12-2 at
38-39; see also Pl.'s Opp'n, ECF No. 16 at 2
(“[S]peaking perfect English is not a job requirement
for Chinese instruction[.]”). According to Ms.
Xiaofeng, she was denied a promotion in January 2010 in
retaliation for her contact with the EEO counselor in October
2009. See Def.'s Ex. 4, ECF No. 12-2 at 39.
relationship with her supervisors soured, Ms. Xiaofeng
amended her first EEO complaint in October 2010 following the
promotion of one of her former colleagues, Limin Zheng
(“Mr. Zheng”), to a GG-12 position. Def.'s
Ex. 3, ECF No. 12-2 at 35. She applied for a GG-12 position
six times, and was denied a promotion each time. Id.
After reporting Mr. Zheng's alleged misconduct to her
supervisors, she claims that he received another promotion
rather than a reprimand. Id. According to Ms.
Xiaofeng, Mr. Zheng eventually became a supervisor, and he
was “in a position to retaliate against [her].”
Id. In September 2010, she alleges that she was
subjected to a hostile work environment and her supervisors
started “ganging up to harass and insult” her in
front of her colleagues. Id. at 29-30. As a result,
Ms. Xiaofeng claims that she experienced “emotional and
physical distress[, ]” “bouts of nausea,
shortness of breath, ” and she had “trouble
sleeping.” Id. at 31.
second EEO complaint, Ms. Xiaofeng asserts that her
supervisors retaliated against her in March 2011. Def.'s
Ex. 5, ECF No. 18-5 at 3. This alleged “new wave of
retaliation” included limited “career advancement
opportunities[, ]” “greater oversight, ”
and “letters of reprimand[.]” Id. She
alleges that the retaliation resulted from, inter
alia, her reports to management about her EEO complaints
and Mr. Zheng's misconduct. Id. at 3-5. Ms.
Xiaofeng avers that she received “constant”
critical memoranda from her supervisors, and they sent her a
factually-inaccurate warning letter in March 2011.
Id. She alleges that the harassment and hostility
diverted her attention away from preparing for her classes,
caused her anxiety, and jeopardized her job security.
Xiaofeng's final two EEO complaints were filed in
September 2013 and March 2014, respectively. See
Def.'s Ex. 3, ECF No. 18-3 at 1-5; see also
Def.'s Ex. 9, ECF No. 18-9 at 1-4. With respect to the
2013 EEO complaint, she first contacted an EEO counselor on
April 10, 2013, alleging that she was retaliated against by
her supervisors in March 2013 for “engaging in prior
protected activity and opposing discriminatory policies or
practices.” R&R, ECF No. 21 at 4 (citing Am.
Compl., ECF No. 5 at 2; Def.'s Ex. 3, ECF No. 18-3 at
1-5); see also Def.'s Ex. 1, ECF No. 18-1 at 1.
According to Ms. Xiaofeng, she tried to leave FSI's
hostile work environment, but her supervisors rejected her
request for a detail opportunity within the State Department
in the fall of 2012. Def.'s Ex. 1, ECF No. 18-1 at 2. She
alleges that she was discriminated against based on reprisal
because her supervisor refused to reassign her to a new
supervisor in March 2013. Id. Ms. Xiaofeng withdrew
from the State Department's Alternative Dispute
Resolution Program on August 16, 2013, and she filed the EEO
complaint on September 10, 2013-twenty-five days after she
received the Notice of Right to File a Discrimination
Complaint on August 16, 2013. See, e.g., Def.'s
Ex. 2, ECF No. 18-2 at 1-2; Def.'s Ex. 3, ECF No. 18-3 at
1-5; Def.'s Ex. 4, ECF No. 18-4 at 1-3. The State
Department issued its Final Agency Decision as to the 2013
EEO complaint on November 1, 2013, and Ms. Xiaofeng did not
appeal that decision. See R&R, ECF No. 21 at 14.
Ms. Xiaofeng's March 2014 EEO complaint repeats her
national origin discrimination, retaliation, and hostile work
environment allegations. See Def.'s Ex. 9, ECF
No. 18-9 at 1-4. She alleges that her supervisors denied her
leave to visit her father in China prior to his death because
she did not present them with a doctor's note to confirm
his condition, and they observed her classroom instruction on
the same day that she told one of her supervisors that her
father passed away in January 2014. Id. at 3. Ms.
Xiaofeng points to these alleged incidents and her
mistreatment as further proof that her supervisors created a
hostile work environment. Id. at 3-4.
Ms. Xiaofeng's 2010 EEO activity, the State Department
issued a final agency decision in May 2012, finding that she
did not establish claims for discrimination on the basis of
national origin, reprisal, and hostile work environment.
Def.'s Ex. 5, ECF No. 12-2 at 41-42. After she appealed
that decision in June 2012, the Equal Employment Opportunity
Commission (“EEOC”)'s Office of Federal
Operations affirmed the decision in September 2014. See,
e.g., Def.'s Ex. F, ECF No. 12-3 at 4-8; Def.'s
Ex. E, ECF No. 12-3 at 2. Ms. Xiaofeng requested
reconsideration of that decision, and the Office of Federal
Operations denied her request in March 2015 due to her
failure to satisfy the requirements for reconsideration
pursuant to 29 C.F.R. § 1614.405(c). See
Compl., ECF No. 1 at 5-7 (Decision on Req. for Recons. (Mar.
30, 2015, Ms. Xiaofeng filed the present action against the
Secretary and Mr. Zheng. See Compl., ECF No.
Thereafter, the Court granted her leave to file an amended
complaint. See Pl.'s Mot. to Amend, ECF No. 4.
She filed the amended complaint on August 24, 2015, naming
the Secretary as the sole defendant. Am. Compl., ECF No. 5 at
February 1, 2016, the Secretary moved to dismiss the amended
complaint under Rule 12(b)(1) and Rule 12(b)(6). See
Def.'s Mot., ECF No. 12. Ms. Xiaofeng filed an opposition,
the Secretary filed a reply, and Ms. Xiaofeng filed a
surreply. See, e.g., Pl.'s Opp'n, ECF No.
16; Def.'s Reply, ECF No. 18; Pl.'s Surreply, ECF No.
She also filed a notice regarding the status of her EEO
complaints. See Pl.'s Notice, ECF No. 20.
Judge Harvey, having been referred the Secretary's motion
to dismiss, issued the R&R on June 29, 2017. See
R&R, ECF No. 21; see also Minute Order (Apr. 27,
2016). Ms. Xiaofeng submitted objections to the R&R, and
the Secretary responded to her objections. This motion is
ripe and ready for the Court's adjudication.
Standard of Review
A. Objections to a Magistrate Judge's
to Federal Rule of Civil Procedure 72(b), a party may file
specific written objections once a magistrate judge has
entered a recommended disposition. Fed.R.Civ.P. 72(b)(1)-(2).
A district court “may accept, reject or modify the
recommended disposition.” Fed.R.Civ.P. 72(b)(3);
see also 28 U.S.C. § 636(b)(1)(C) (“A
judge of the court may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the
magistrate judge.”). The Court “must determine de
novo any part of the magistrate judge's disposition that
has been properly objected to[.]” Fed.R.Civ.P.
72(b)(3). “If, however, the party makes only conclusory
or general objections, or simply reiterates his original