DOE v. Austin

1

JANE DOE, Plaintiff, v. LLOYD AUSTIN, III, Secretary of Defense, Defendant.

Civil Action No. 22-3474 (RC)

United States District Court, District of Columbia

February 29, 2024

Re Document No.: 18

MEMORANDUM OPINION

RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE

Granting in Part and Denying in Part Defendant's Partial Motion to Dismiss

I. INTRODUCTION

Plaintiff Jane Doe (“Plaintiff”), proceeding under pseudonym, brings an employment discrimination action under Title VII of the Civil Rights Act of 1964 and 42 U.S.C § 1981 against Defendant Lloyd Austin in his official capacity as Secretary of Defense (“Defendant”). Plaintiff largely proceeds under Title VII of the Civil Rights Act of 1964, alleging that she suffered disparate treatment and a hostile work environment based on her race and national origin, and that she suffered retaliation for reporting this discrimination. Plaintiff also alleges that her due process rights were violated when she was not given an opportunity to participate in the reconsideration of the revocation of her security clearance. Defendant has filed a partial motion to dismiss for failure to state a claim, arguing that Plaintiff's hostile work environment and due process claims should be dismissed in full, and that her disparate treatment claim should be dismissed in part because Plaintiff fails Title VII's administrative exhaustion requirement and because some of the actions at issue are not sufficient adverse actions to state a claim. For the reasons stated below, the partial motion to dismiss is granted in part and denied in part.

II. BACKGROUND

A. Factual Background^[1]

Plaintiff alleges that she is a Chinese American who was employed as an intelligence officer for the Defense Intelligence Agency. First Am. Compl. (“Am. Compl.”) ¶ 2, ECF No. 16. Plaintiff is an American citizen; she previously held United Kingdom citizenship, but abandoned it when she was naturalized as a U.S. citizen. Id. ¶ 25. She was hired as an intern on March 28, 2011, and then in June 2011, she was offered full-time employment with the Agency. Id. ¶ 13. In November 2011, Plaintiff took a vacation to Jamaica, which was authorized and approved by her supervisors. Id. ¶ 14. While there, she participated in the Miss United Nations Pageant. Id. ¶ 16. Because Plaintiff was a late entrant and the representative for the United States had already been chosen, “[t]he pageant organizers recommended that she participate as Miss China.” Id. ¶ 15. Plaintiff participated as Miss China “based on her heritage, not her nationality[.]” Id. ¶ 16. The previous year's Miss China was also an American citizen. Id. ¶ 15. Plaintiff did not win the competition or receive any money as part of her participation. Id. ¶ 16.

Two days after Plaintiff returned from Jamaica, Krisanne Lindenauer, an Agency security official, interrogated Plaintiff about her trip and her reasons for entering the defense industry. Id. ¶ 17. Ms. Lindenauer asked Plaintiff to take a polygraph examination, and Plaintiff agreed. Id. ¶¶ 17-18. During the examination, Plaintiff reported going to Jamaica on vacation, but she “did not mention the pageant for fear that she would be objectified in the workplace.” Id. ¶ 18.

In the next 10 days, Agency security officials held two more meetings with Plaintiff. Id. ¶ 19. They instructed Plaintiff to provide an updated list of her foreign contacts, including social media contacts. Id. ¶¶ 20-21. Plaintiff alleges that the Agency did not implement guidelines for reporting social media contacts until 2014, and not all employees were required to disclose their contacts. Id. ¶¶ 20-21. She alleges that the Agency did not ask her Caucasian colleagues “who attended the same study abroad program [as Plaintiff] at the Hopkins-Nanjing Center” to report their foreign social media contacts. Id. ¶ 21.

After these three meetings, Plaintiff sought out “Ms. Lindenauer and informed her of the pageant and her participation as Miss China[.]” Id. ¶ 22. Ms. Lindenauer “angrily” chastised Plaintiff for her participation and demanded that Plaintiff write a statement of allegiance to the United States. Id. ¶ 23. The Agency allegedly only required employees with dual citizenship to write statements of allegiance, and Plaintiff was solely an American citizen. Id. ¶ 25. Plaintiff alleges that she was targeted based on her Chinese ancestry as “part of a pattern of discriminatory, hostile and xenophobic actions by Defendant's employees that specifically held Asian and Asian Heritage Americans to different standards than their White counterparts.” Id. ¶ 24. Plaintiff's supervisors and colleagues stated that they were concerned about the statement of allegiance and expressed they felt Plaintiff's “race and national origin were a factor in the discriminatory nature by which it was mandated.” Id. ¶ 27. Nonetheless, they told Plaintiff she would have to sign it to keep her employment. Id. Plaintiff wrote and signed the statement of allegiance on December 7, 2011. Id. ¶ 28.

And although the timeline in the amended complaint is not exactly clear, it also appears that around this time, Plaintiff was directed “to cease all contact with foreign nationals when no such policy existed” at the Agency.^[2] Id. ¶ 51. The Agency also told Plaintiff “that an HSBC bank account that she had opened in California and closed in April 2009 was a security concern.” Id. ¶ 52. None of her Caucasian classmates from the Hopkins-Nanjing Center, who shared identical foreign contacts developed from that experience, and “who had bank accounts opened in the United States with multinational financial institutions,” faced the same treatment. Id. ¶¶ 51-52.

The amended complaint alleges that the Agency continued to subject Plaintiff to harassment and discrimination in spring of 2012. Id. ¶ 29. On April 4, 2012, she was summoned to another meeting with security officials and questioned about her partner, who was also a Chinese American employee of the Agency. Id. ¶ 30. The security officials told Plaintiff that her partner was also under investigation, and that her classmates in a specialized training course had reported Plaintiff as suspicious for arriving at an evening social gathering with other Asian Americans. Id. ¶ 30-31. On April 6, 2012, Plaintiffs partner posted a topic on the Defense Intelligence Agency's online discussion board outlining discrimination and retaliation against the Agency's Asian American and Middle Eastern employees. Id. ¶ 32. That same day, Plaintiff was called into another meeting with security officials and ordered to sign a second sworn statement. Id. ¶ 33.

On April 25, 2012, Plaintiff and her partner filed an informal discrimination complaint with the Agency's Equal Employment Office (“EEO”). Id. ¶ 34. The following month, a senior level EEO counselor requested that Plaintiff identify the party responsible for discrimination. Id. ¶ 36. Plaintiff gave the name of Ms. Lindenauer, who had been present at all seven of the security meetings over the preceding seven months. Id. The EEO counselor interviewed Ms. Lindenauer. Id. ¶ 37.

The next day, “in direct retaliation for being identified as the responsible party in the EEO investigation,” Ms. Lindenauer directed Plaintiff to take another polygraph. Id. Plaintiff reported the demand to the EEO counselor and her managers, and her managers recommended she comply. Id. ¶ 38. With Ms. Lindenauer present, Plaintiff sat for and passed a six-hour polygraph at an off-site location. Id. ¶ 40. Two days later, she was also required to sit for an additional “grueling and aggressive” counter-intelligence polygraph. Id. ¶ 41.

On June 28, 2012, Plaintiff participated in an Agency investigation into the treatment of its Asian American and Arab American employees. Id. ¶ 42. On July 2, 2012, the Agency Inspector General briefed senior management on the investigation, and that same day, the Agency's Chief of Staff sent an email to the Director, Deputy Director and General Counsel that recommended the Agency re-adjudicate Plaintiff's security clearance. Id. ¶¶ 43-44. A few days later, the Deputy Director initiated a Counterintelligence Risk Assessment on Plaintiff, allegedly “predicated on knowingly false reports against Plaintiff, motivated by her race, national origin, and protected EEO activity.” Id. ¶¶ 45-46.

Plaintiff alleges that an October 2012 preliminary assessment of the Agency's Inspector General investigation into discrimination stated that “two investigators['s] ... behavior was not conducive to good order and discipline expected of a government employee” when they referred to an Asian American employee as a “house boy” and “intern bitch,” and spread a photo of an Asian male sitting under a target with the caption “[Asian American colleague] demonstrates his potential at the [Agency] pistol range.”^[3] Id. ¶ 48. When Ms. Lindenauer was interviewed during the investigation, she was asked “[w]hat can be done to reduce/eliminate the perception of harassing or discriminatory practices?” and replied, “[n]othing, maybe they [Asian / Chinese Americans] should not be working in the IC [Intelligence Community].” Id. ¶ 47. Ms. Lindenauer also confirmed that she had referred to an Asian American colleague as her “house boy.” Id. The amended complaint does not indicate that Plaintiff personally witnessed any of this conduct. Nonetheless, Plaintiff also “learned from the [Office of the Inspector General] investigation that Defendant's officials stated explicitly that she was being treated as she was because of her race and national origin.” Id. ¶ 53.

On January 23, 2013, Defendant “cancelled [Plaintiff's] scheduled deployment abruptly without warning or explanation.” Id. ¶ 55. She “would learn in subsequent years...