United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE
se Plaintiff Qihui Huang, a former employee of the
Federal Communications Commission (“FCC”), brings
retaliation and discrimination claims against Ajit Pai, the
Chairman of the FCC. Plaintiff retired from the FCC in
January 2016. And, on December 17, 2018, Plaintiff filed this
lawsuit bringing numerous claims and arguing that Defendant
discriminated and retaliated against her in various ways
dating back to at least 2004.
the Court is Defendant's  Motion to Dismiss. First,
Defendant claims that the Court should dismiss
Plaintiff's entire Complaint because Plaintiff failed to
timely exhaust her administrative remedies. Second, Defendant
argues that several of Plaintiff's claims are barred by
the doctrine of res judicata because they are related to
claims that Plaintiff brought against Defendant in a prior
2016 lawsuit. Finally, Defendant contends that, for each of
Plaintiff's claims, she has failed to allege actionable
discrimination or retaliation.
consideration of the pleadings, the relevant legal authorities,
and the record for purposes of this motion, the Court GRANTS
Defendant's Motion. The Court concludes that Plaintiff
failed to timely exhaust each of her claims by requesting
Equal Employment Opportunity (“EEO”) counseling
within 45 days of the alleged discriminatory or retaliatory
events. Additionally, the Court concludes that at least one
of Plaintiff's claims is barred by res judicata and three
of Plaintiff's claims fail to state a claim for which
relief may be granted. Accordingly, the Court DISMISSES
Plaintiff's lawsuit in its entirety.
purposes of the motion before the Court, the Court accepts as
true the well-pleaded allegations in Plaintiff's
Complaint. The Court does “not accept as true, however,
the plaintiff's legal conclusions or inferences that are
unsupported by the facts alleged.” Ralls Corp. v.
Comm. on Foreign Inv. in the United States, 758 F.3d
296, 315 (D.C. Cir. 2014). Further, because Plaintiff
proceeds in this matter pro se, the Court must
consider not only the facts alleged in Plaintiff's
Complaint, but also the facts alleged in Plaintiff's
Opposition to Defendant's Motion to Dismiss. See
Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 152
(D.C. Cir. 2015) (“[A] district court errs in failing
to consider a pro se litigant's complaint
‘in light of' all filings, including filings
responsive to a motion to dismiss.”); Fillmore v.
AT & T Mobility Servs. LLC, 140 F.Supp.3d 1, 2
(D.D.C. 2015) (“The Court, as it must in a case brought
by a pro se plaintiff, considers the facts as
alleged in both the Complaint and Plaintiff's Opposition
to Defendant's Motion to Dismiss.”).
Plaintiff is pro se, her Complaint is at times
difficult to understand and contains extraneous information.
Moreover, Plaintiff's Complaint is often devoid of
important factual information, such as the dates on which
events occurred. The Court has attempted to summarize the
facts relating to Plaintiff's claims and recites only the
background necessary for the Court's resolution of the
pending Motion to Dismiss.
is an Asian American, foreign-born, disabled woman who is
over 67 years old. Pl.'s Opp'n, ECF No. 23, 2.
Plaintiff started working for the FCC in 1991. Id.
While working for the FCC, Plaintiff states that she
significantly contributed to the winning of the 2006 Nobel
Physics Prize and co-authored three publications for the
Nobel Prize project. Id. From 2004 until her
retirement in 2016, Plaintiff was a GS-15 electronics
engineer in the Office of Engineering and Technology.
Id. Plaintiff states that, prior to the events
alleged in her Complaint, she received all positive
performance evaluations, all within grade step increases, and
some performance awards. Id.
states that for six or more years while she performed as a
GS-15 employee, she applied for seven or eight supervisory
positions with the Office of Engineering and Technology.
Id. Plaintiff states that she was not selected for
any of those supervisory positions. Plaintiff further states
that no woman, Asian person, foreign-born person, or other
minority was promoted to those supervisory positions.
Id. at 3.
claims that in either 2010 or 2012 she complained to the
former-Chairman of the FCC and a commissioner of the FCC
about the FCC's failure, from 2004 to 2012, to promote to
supervisory positions women, Asian persons, foreign-born
persons, and other minorities. Id.; Compl., ECF No.
alleges that sometime after she made this complaint, she
began to experience discrimination and retaliation. Pl.'s
Opp'n, ECF No. 23, 4. For example, in 2012, a GS-15
branch chief position opened in the Office of Engineering and
Technology. Compl., ECF No. 1, 3. Plaintiff states that John
Kennedy, an African American man, was promoted to the branch
chief position. Pl.'s Opp'n, ECF No. 23, 4. Plaintiff
alleges that she was more qualified than Mr. Kennedy. Compl.,
ECF No. 1, 4-5. Additionally, Plaintiff further claims that
her performance cash awards were reduced, then went to zero
despite the fact that she did her work and did not receive
negative comments. Id. at 5; Pl.'s Opp'n,
ECF No. 23, 4. Plaintiff next claims that in 2014, another
FCC employee, Martin Doczkat, was promoted to GS-15, then
made acting branch chief, and then promoted to branch chief
even though Plaintiff had more experience. Compl., ECF No. 1,
5; Pl.'s Opp'n, ECF No. 23, 4.
the following allegations are not made in her Complaint, in
her Opposition, Plaintiff further claims that Defendant
improperly tasked her with working on a report on wireless
microphones. Plaintiff explains that, based on this report on
wireless microphones, Defendant concluded that she was a poor
performer, gave her a failing performance evaluation, and
denied her within grade step increases. At this time, Mr.
Doczkat was Plaintiff's supervisor and working with him
caused her blood pressure to rise. Despite these issues,
Plaintiff alleges that she was denied requests to work with a
new supervisor. Finally, Plaintiff claims that she retired
early. Pl.'s Opp'n, ECF No. 23, 4.
claims that her attempts to report complaints to the Equal
Employment Opportunity (“EEO”) counselors were
stymied because, beginning in January 2015 and lasting for
several months, the Office of Workplace Diversity did not
respond to Plaintiff's attempts to contact them. Compl.,
ECF No. 1, 7. Plaintiff alleges that this failure to respond
was based on her race, sex, national origin, disability
status, age, and prior discrimination reports. Id.
Plaintiff claims that Defendant lied about, altered, or
concealed material facts in her prior 2016 lawsuit against
Defendant. Id. at 7; see Huang v. Wheeler,
Civ. A. No. 16-1398 (JEB), affirmed, 17-5290 (D.C.
Cir. 2019). In Plaintiff's prior 2016 lawsuit, she
brought claims against the then-chairman of the FCC for
discrimination, retaliation, and a hostile work environment
alleging that from Spring 2014 through January 2016 she was
told that she was unqualified to be a GS-15, that she
received a “fail” performance rating, that her
sick leave request was not approved, that she was denied a
step increase, that she was placed on a performance
improvement plan, that she was not allowed to transfer, and
that she was forced to retire early. Huang, Civ. A.
No. 16-1398 (JEB), Oct. 19, 2016 Memorandum Opinion, ECF No.
on the facts alleged in this lawsuit, Plaintiff contends that
Defendant violated “[a]ll U.S. Constitutions, federal
laws, codes, rules, regulations, ACTs, which are related to
constitutional rights, civil rights, employment
discriminations and retaliations, ‘No Fear Act',
and more.” Compl., ECF No. 1, 3. The Court interprets
Plaintiff to be invoking Title VII of the Civil Rights Act,
42 U.S.C. § 2000e et seq. The Court further
interprets Plaintiff's Complaint and her Opposition as
stating seven claims for relief, the first six of which are
alleged in her Complaint and the last of which is alleged
only in her Opposition.
• Count 1- Discrimination and retaliation for failing to
promote women, Asian Americans, foreign born persons, and
other minorities from 2004 to 2012;
• Count 2- Discrimination and retaliation for failing to
promote Plaintiff to a supervisory branch chief position in
• Count 3- Discrimination and retaliation for decreasing
Plaintiff's performance cash awards;
• Count 4- Discrimination and retaliation for failing to
promote Plaintiff to acting branch chief and branch chief in
• Count 5- Discrimination and retaliation for failing to
process Plaintiff's EEO complaints in January 2015 and
for several months thereafter;
• Count 6- Discrimination and retaliation for altering
or concealing material facts in Plaintiff's 2016 lawsuit
against Defendant; and
• Count 7- Discrimination and retaliation for forcing
Plaintiff to work on a wireless microphone report under a
disfavored supervisor, resulting in poor performance reports
and Plaintiff's early retirement.
moves to dismiss Plaintiff's Complaint under Rule
12(b)(6). According to Rule 12(b)(6), a party may move to
dismiss a complaint on the grounds that it “fail[s] to
state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6). “[A] complaint [does not]
suffice if it tenders ‘naked assertion[s]' devoid
of ‘further factual enhancement.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557
(2007)). Rather, a complaint must contain sufficient factual
allegations that, if accepted as true, “state a claim
to relief that is plausible on its face.”
Twombly, 550 U.S. at 570. “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678.