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Xiaofeng v. Pompeo

United States District Court, District of Columbia

April 17, 2019

WU XIAOFENG Plaintiff,
v.
MICHAEL R. POMPEO, [1] Secretary, U.S. Department of State, Defendant.

          MEMORANDUM OPINION

          Emmet G. Sullivan United States District Judge

         Plaintiff 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.

         Pending 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.

         I. Background

         The 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.[2] The Court adopts and incorporates Magistrate Judge Harvey's thorough recitation of the facts. See id.[3]

         A. Factual Background

         Ms. 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.[4]

         After 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.

         1. Ms. Xiaofeng's EEO Complaints

         Between 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.

         As her 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.

         In her 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. Id.

         Ms. 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.

         Finally, 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.

         2. Administrative Proceedings

         Following 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. 27, 2015)).

         B. Procedural History

         On June 30, 2015, Ms. Xiaofeng filed the present action against the Secretary and Mr. Zheng. See Compl., ECF No. 1.[5] 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 1.

         On 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.[6] 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. 19.[7] She also filed a notice regarding the status of her EEO complaints. See Pl.'s Notice, ECF No. 20.

         Magistrate 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.

         II. Standard of Review

          A. Objections to a Magistrate Judge's R&R

         Pursuant 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 ...


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