                      UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF COLUMBIA


    WU XIAOFENG

                    Plaintiff,
    v.
                                        No. 15-cv-1040 (EGS)
    MICHAEL R. POMPEO, 1 Secretary,
    U.S. Department of State,

                    Defendant.


                           MEMORANDUM OPINION

         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.




1 Michael R. Pompeo has been automatically substituted as the
defendant in this case. See Fed. R. Civ. P. 25(d).
     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



2 When citing electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document.
3 Magistrate Judge Harvey cited and relied on several documents
that were not attached to the amended complaint. See R&R, ECF
No. 21 at 2-5. However, such reliance was proper as those
documents were either “incorporated by reference in the
complaint, or documents upon which the plaintiff’s complaint
necessarily relies . . . .” Ward v. D.C. Dep’t of Youth Rehab.
Servs., 768 F. Supp. 2d 117, 119 (D.D.C. 2011) (internal
citations and quotations omitted). Magistrate Judge Harvey
properly took judicial notice of certain documents that
Ms. Xiaofeng had attached as exhibits to her initial complaint,
but failed to attach to the amended complaint. See, e.g., R&R,
ECF No. 21 at 10-11; Fed. R. Evid. 201 (courts may take judicial
notice of adjudicative facts); Vasser v. McDonald, 228 F. Supp.
3d 1, 7-8, 9-10 (D.D.C. 2016)(taking judicial notice of
                                 2
       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




administrative orders and administrative complaints not attached
to the complaint: “[i]f courts could not take judicial notice of
such public documents, plaintiffs who obviously had not complied
with the administrative-exhaustion process could survive motions
to dismiss purely by failing to attach their administrative
complaint.”). Magistrate Judge Harvey also properly took
judicial notice of the administrative documents included in the
Secretary’s submissions to resolve the issue of whether
Ms. Xiaofeng exhausted her administrative remedies. See R&R, ECF
No. 21 at 10-11; see also Sierra v. Hayden, 254 F. Supp. 3d 230,
237 (D.D.C. 2017) (“[T]he Court need not convert Defendant’s
motion [to dismiss] into one for summary judgment, because it
may take judicial notice of the only administrative documents
needed to rule on th[e] motion.”).




                                3
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




4 According to the State Department, “GG” is the “[p]ay plan used
by the Department to denote a pay schedule similar to the
General Schedule [“GS”]. Excepted service positions at the U.S.
Mission to the United Nations (USUN) and the Foreign Service
Institute (FSI) use the GG designation.” Civil Service Benefits,
U.S. Dep’t of State, https://careers.state.gov/work/benefits/cs/
(last visited Apr. 15, 2019).
                                    4
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

                                5
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

                                6
(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

                                7
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


5 Ms. Xiaofeng’s initial complaint, see Compl., ECF No. 1, and her
four-page amended complaint, see Am. Compl., ECF No. 5, do not
                                8
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




include numbered paragraphs as required by Federal Rule of Civil
Procedure 10(b). See Fed. R. Civ. P. 10(b).
6 The Secretary moved to dismiss the amended complaint under Rule
12(b)(1) for lack of subject-matter jurisdiction, arguing that
Ms. Xiaofeng failed to exhaust her administrative remedies. See,
e.g., Def.’s Mot. to Dismiss (“Def.’s Mot.”), ECF No. 12 at 1;
Def.’s Mem., ECF No. 12-1 at 7-8 (citing Fed. R. Civ. P. 12(b)(1)).
Magistrate Judge Harvey construed the motion “as one brought solely
under Rule 12(b)(6)” after “finding no arguments for dismissal
under Rule 12(b)(1) in [the Secretary’s] briefing.” R&R, ECF No.
21 at 8. The Secretary does not challenge Magistrate Judge Harvey’s
finding. See Def.’s Resp., ECF No. 24 at 1 n.1, 10. Therefore, the
Court will construe the Secretary’s motion as one brought under
Rule 12(b)(6). See Williams-Jones v. LaHood, 656 F. Supp. 2d 63,
64 (D.D.C. 2009) (construing a motion to dismiss under Rule
12(b)(6) rather than Rule 12(b)(1)).
7 Although Ms. Xiaofeng did not seek leave of the Court before
filing her surreply, Magistrate Judge Harvey considered it because
the Secretary raised issues for the first time in his reply brief.
See R&R, ECF No. 21 at 7.
                                9
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 arguments, the Court reviews

the [R&R] only for clear error.” Alkanani v. Aegis Def. Servs.,

LLC, 976 F. Supp. 2d 13, 23 (D.D.C. 2014) (quoting Houlahan v.

Brown, 979 F. Supp. 2d 86, 88 (D.D.C. 2013)).

      Proper objections “shall specifically identify the portions

of the proposed findings and recommendations to which objection

                                10
is made and the basis for objection.” LCvR 72.3(b) (emphasis

added). “[O]bjections which merely rehash an argument presented

to and considered by the magistrate judge are not ‘properly

objected to’ and are therefore not entitled to de novo review.”

Shurtleff v. EPA, 991 F. Supp. 2d 1, 8 (D.D.C. 2013) (quoting

Morgan v. Astrue, No. 08-2133, 2009 WL 3541001, at *3 (E.D. Pa.

Oct. 30, 2009)). A court need not consider cursory objections

made only in a footnote. Hutchins v. District of Columbia, 188

F.3d 531, 539 n.3 (D.C. Cir. 1999); see also Potter v. District

of Columbia, 558 F.3d 542, 553 (D.C. Cir. 2009) (Williams, J.,

concurring) (“[J]udges are not like pigs, hunting for truffles

buried in briefs or the record.” (citation and internal

quotation marks omitted)).

     “The objections of parties appearing pro se are ‘generally

accorded leniency’ and should be construed ‘to raise the

strongest arguments that they suggest.’” DiPilato v. 7–Eleven,

Inc., 662 F. Supp. 2d 333, 340 (S.D.N.Y. 2009) (quoting Milano

v. Astrue, 05–CV–6527, 2008 WL 4410131, at *24 (S.D.N.Y. Sept.

26, 2008)); see also Houlahan, 979 F. Supp. 2d at 88 (reviewing

de novo the R&R, “although many of Plaintiff’s objections [were]

conclusory or merely repeat[ed] his original arguments, because

of his pro se status[.]”). “However, even where an objection has

been filed pro se, ‘[a]n objection to a [R&R] in its entirety

does not constitute a specific written objection within the

                               11
meaning of Rule 72(b).’” Williams v. Woodhull Med. & Mental

Health Ctr., 891 F. Supp. 2d 301, 310 (E.D.N.Y. 2012) (quoting

Healing Power, Inc. v. Ace Cont’l Exports, Ltd., No. 07–cv–4175

(NGG)(RLM), 2008 WL 4693246, at *1 (E.D.N.Y. Oct. 17, 2008)).

       B. Motion to Dismiss

     The Secretary moves to dismiss the amended complaint on the

ground that the operative complaint “fail[s] to state a claim

upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “A

Rule 12(b)(6) motion tests the legal sufficiency of a

complaint[.]” See Browning v. Clinton, 292 F.3d 235, 242 (D.C.

Cir. 2002). “[T]he complaint is construed liberally in the

plaintiff[’s] favor, and [the Court] grant[s the] plaintiff[ ]

the benefit of all inferences that can be derived from the facts

alleged.” Kowal v. MCI Comm’cns Corp., 16 F.3d 1271, 1276 (D.C.

Cir. 1994). However, the Court is “not bound to accept as true a

legal conclusion couched as a factual allegation.” Papasan v.

Allain, 478 U.S. 265, 286 (1986).

     A complaint survives a motion under Rule 12(b)(6) only if

it “contain[s] sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).

A claim is facially plausible “when the plaintiff pleads factual

content that allows the court to draw [a] reasonable inference

that the defendant is liable for the misconduct alleged.” Id.

                               12
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, (2007)).

A complaint alleging facts which are “merely consistent with a

defendant’s liability . . . stops short of the line between

possibility and plausibility of entitlement to relief.” Id.

(citing Twombly, 550 U.S. at 557 (internal quotation marks

omitted)).

     A pro se complaint “must be held to less stringent

standards than formal pleadings drafted by lawyers,” Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (citation and internal quotation

marks omitted), but it, too, “must plead ‘factual matter’ that

permits the court to infer ‘more than the mere possibility of

misconduct.’” Atherton v. District of Columbia Off. of the

Mayor, 567 F.3d 672, 681–82 (D.C. Cir. 2009) (quoting Iqbal, 556

U.S. at 679). Although detailed factual allegations are not

required at the pleading stage, a complaint must offer more than

“unadorned, the-defendant-unlawfully-harmed-me accusation[s].”

Iqbal, 556 U.S. at 678 (citations omitted). “A pleading that

offers ‘labels and conclusions’ or ‘a formulaic recitation of

the elements of a cause of action will not do,’” id. (quoting

Twombly, 550 U.S. at 555), and a complaint which merely “tenders

‘naked assertion[s]’ devoid of ‘further factual enhancement,’”

id. (quoting Twombly, 550 U.S. at 557), is equally unavailing.




                               13
III. Analysis

     In her amended complaint, Ms. Xiaofeng asserts three Title

VII claims: (1) her supervisors discriminated against her based

on her national origin; (2) they retaliated against her for

complaining about this discrimination and engaging in prior

protected activity; and (3) they created a hostile work

environment to build a case to terminate her employment. See Am.

Compl., ECF No. 5 at 1-4. 8

     The Secretary advances four grounds for dismissal:

(1) Ms. Xiaofeng failed to exhaust her administrative remedies

as she must to bring the Title VII claims, see Def.’s Mem., ECF

No. 12-1 at 1, 7-8; (2) she alleged no facts to support her

discrimination claim that her supervisors targeted her because

of her national origin, see id. at 12-13; (3) her retaliation

claim fails because she did not allege sufficient facts to

create a causal connection between the adverse employment

actions (failure to receive promotions) and her participation in


8 The amended complaint does not explicitly reference Title VII.
See generally Am. Compl., ECF No. 5; see also R&R, ECF No. 21 at
12 (stating that the operative “[c]omplaint—while still not a model
of clarity—attempts to allege three Title VII claims[.]”). The
Court assumes that Ms. Xiaofeng has pled claims under Title VII
because: (1) the parties “both responded in subsequent filings as
if Title VII had been pled[;]” (2) “filings by pro se litigants
should be read together[;]” and (3) pro se complaints should be
“construed liberally[.]” Heard v. U.S. Dep’t of State, No. CIV.A.
08-02123 RBW, 2010 WL 3700184, at *5 n.6 (D.D.C. Sept. 17, 2010)
(citing Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir.
1999); Newby v. Obama, 681 F. Supp. 2d 53, 55 (D.D.C. 2010)).
                                14
protected activity (her prior EEO complaints), see id. at 14-15;

and (4) she fails to allege facts, “individually or

cumulatively, to establish a hostile work environment [claim]”

because she only “describe[s] quotidian acts or events[.]”, id.

at 10.

     Magistrate Judge Harvey recommends that the Court dismiss

Ms. Xiaofeng’s national origin discrimination and hostile work

environment claims because: (1) Ms. Xiaofeng failed to state a

national origin discrimination claim because the amended

complaint “contains no alleged facts sufficient to give rise to

a conceivable inference, let alone a plausible one, that she was

discriminated against because of her national origin[,]” R&R,

ECF No. 21 at 17; and (2) her hostile work environment claim

also fails because Ms. Xiaofeng made conclusory statements of

unfair treatment by her supervisors that are insufficient to

show that she was subjected to “discriminatory intimidation,

ridicule, and insult that [was] sufficiently severe or pervasive

to alter the conditions of [her] employment and create an

abusive working environment.” Id. at 22 (quoting Wise v.

Ferriero, 842 F. Supp. 2d 120, 125 (D.D.C. 2012) (citation and

internal quotation marks omitted)). Should Ms. Xiaofeng be

permitted to proceed, Magistrate Judge Harvey recommends that

the Court grant her leave to amend her operative complaint to

cure its deficiencies. Id. at 18, 25-26.

                               15
     Magistrate Judge Harvey also recommends that the Court

dismiss Ms. Xiaofeng’s retaliation claim raised in her 2013 EEO

complaint because she failed to exhaust her administrative

remedies with respect to the 2013 EEO complaint. Id. at 13-14.

She filed the 2013 EEO complaint twenty-five days after receipt

of the notice to file an EEO complaint rather than the required

fifteen days, id. at 14 (citing 29 C.F.R. § 1614.106(b)). Since

Ms. Xiaofeng failed to appeal the State Department’s November

2013 Final Agency Decision, she did not timely file the instant

action as to her 2013 EEO complaint within ninety days of

receipt of the final action. Id. at 14 (citing 29 C.F.R. §

1614.407(a)). Magistrate Judge Harvey found that there was “no

basis for tolling these deadlines” under the equitable tolling

doctrine because Ms. Xiaofeng “had already filed two other EEO

complaints and was familiar with this procedure[.]” Id. Further,

equitable tolling does not apply in her situation because she

does not allege any facts to establish that “[s]he has been

pursuing [her] rights diligently,” and that she fails to point

to any extraordinary circumstance [that] stood in [her] way and

prevent[ed] timely filing[.]” Id. at 15 (quoting Horsey v. U.S.

Dep’t of State, 170 F. Supp. 3d 256, 267 (D.D.C. 2016)).

     Finally, Magistrate Judge Harvey recommends that

Ms. Xiaofeng’s retaliation claim as to the 2010, 2011, and 2014

EEO complaints be permitted to proceed. See id. at 19-21.

                               16
Magistrate Judge Harvey found that she alleges that her

supervisors denied her promotions and other employment-related

opportunities while her EEO complaints were pending, which

establishes the required causal connection at the motion to

dismiss stage. Id. at 20-21 (collecting cases). Magistrate Judge

Harvey therefore concludes that “her remaining claims of

retaliation be permitted to proceed.” Id. at 26.

     Raising no objections to these recommendations, the

Secretary asks this Court to adopt the R&R in its entirety. See

Def.’s Resp. to Pl.’s Objs. (“Def.’s Resp.”), ECF No. 24 at 10.

Although Ms. Xiaofeng filed objections to the R&R, which are

styled “Discussion and Objection,” see Pl.’s Objs., ECF No. 22

at 1, the Secretary first argues that her objections were

untimely because she filed them after fourteen days of the

party’s receipt of the R&R. See Def.’s Resp., ECF No. 24 at 2-3.

The Secretary contends that “[Ms. Xiaofeng] has not presented

any arguments or information that merit rejection or

modification of the Magistrate Judge’s [R&R].” Id. at 2.

     Before addressing the Secretary’s arguments in turn, the

Court will address Magistrate Judge Harvey’s recommendations to

which no party has objected. For the reasons discussed below,

the Court concludes that Ms. Xiaofeng’s retaliation claim as to

the 2010, 2011, and 2014 EEO complaints shall be permitted to

proceed. The Court dismisses without prejudice Ms. Xiaofeng’s

                               17
national origin and hostile work environment claims because she

has failed to allege sufficient facts to show plausibly that she

is entitled to relief for any of those claims.

       A. Un-Objected to Recommendations With Respect to
          Ms. Xiaofeng’s Retaliation Claim

     Neither party has objected to the portion of the R&R in

which Magistrate Judge Harvey recommends that this Court deny

the Secretary’s motion as to Ms. Xiaofeng’s retaliation claim.

See, e.g., R&R, ECF No. 21 at 19-21; Pl.’s Objs., ECF No. 22 at

1-12; Def.’s Resp., ECF No. 24 at 1-12. “In order to state a

claim of retaliation under Title VII . . ., the plaintiff must

allege a protected activity, a materially adverse action, and a

causal link between the two.” Kangethe v. District of Columbia,

No. CV 18-64 (CKK), 2019 WL 266329, at *3 (D.D.C. Jan. 18, 2019)

(citing Allen v. Johnson, 795 F.3d 34, 39 (D.C. Cir. 2015)); see

also Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761

(1998) (“A tangible employment action constitutes a significant

change in employment status, such as . . . failing to promote,

reassignment with significantly different responsibilities, or a

decision causing a significant change in benefits.”).

     Although the Secretary argued that there is no temporal or

causal connection between the adverse employment actions and the

protected EEO activity, see Def.’s Mem., ECF No. 12-1 at 14,

Magistrate Judge Harvey concluded that Ms. Xiaofeng’s


                               18
allegation—“that she has been denied promotional and other

employment-related job opportunities while her EEO complaints

were still being processed at the administrative level—“is

sufficient, at [the motion to dismiss] stage to satisfy the

causation requirement for a claim of retaliation.” Id. at 20-21

(emphasis in original) (collecting cases). Magistrate Judge

Harvey noted that “[t]his recommendation does not apply to the

retaliation claim raised in Plaintiff’s 2013 EEO complaint,

which she failed to exhaust.” Id. at 21 n.7. The parties do not

challenge these findings. See Pl.’s Objs., ECF No. 22 at 1-12;

see also Def.’s Resp., ECF No. 24 at 1-12. Having found no clear

error in this portion of the R&R, the Court therefore adopts

Magistrate Judge Harvey’s recommendation to deny the Secretary’s

motion to dismiss as to Ms. Xiaofeng’s retaliation claim. 9

       B. Whether Ms. Xiaofeng’s Objections Were Timely Filed

     The Secretary argues that Ms. Xiaofeng’s objections were

untimely. See Def.’s Resp. at 3. As stated in the R&R, “any

party who objects to the [R&R] must file a written objection

thereto with the Clerk of this Court within fourteen (14) days

of the party’s receipt of this [R&R].” R&R, ECF No. 21 at 26


9 To the extent that Ms. Xiaofeng objected to this portion of the
R&R, the Court reaches the same conclusion and dismisses her
retaliation claim based on a de novo review of this portion of the
R&R. See Houlahan, 979 F. Supp. 2d at 88 (conducting a de novo
review of the R&R although the pro se plaintiff’s objections were
conclusory and repeated his original arguments).
                                19
(citing LCvR 72.3(b)); see also Fed. R. Civ. P. 72(b)(2)

(“Within 14 days after being served with a copy of the

recommended disposition, a party may serve and file specific

written objections to the proposed findings and

recommendations.”). Magistrate Judge Harvey made clear that

“failure to file timely objections to the findings and

recommendations set forth in this [R&R] may waive their right of

appeal from an order of the District Court that adopts such

findings and recommendation.” R&R, ECF No. 21 at 26 (citing

Thomas v. Arn, 474 U.S. 140, 142, 155 (1985)); see also Gov’t of

Rwanda v. Johnson, 409 F.3d 368, 376 (D.C. Cir. 2005)

(“[O]bjections to magistrate rulings are forfeited absent timely

challenge in the district court[.]”).

     According to the Secretary, the 14–day period during which

the parties had to file written objections to the R&R expired on

July 17, 2017. See Def.’s Resp., ECF No. 24 at 2-3 (citing R&R,

ECF No. 21 at 26; LCvR 72.3(b)). The Clerk of Court mailed a

copy of the R&R to Ms. Xiaofeng, and she acknowledged receipt of

it on July 3, 2017. See Pl.’s Objs., ECF No. 22 at 1; see also

Pl.’s Suppl. to Pl.’s Objs. (“Pl.’s Suppl.”), ECF No. 23 at 1

(noting that “[t]his new version . . . contains some additional

information not included in [her first objections.]”). The Clerk

of Court received Ms. Xiaofeng’s first objections on July 19,

2017 through the mail, and her supplemental objections on July

                               20
21, 2017. E.g., Pl.’s Objs., ECF No. 22 at 1; Pl.’s Suppl., ECF

No. 23 at 16. Because she filed the objections after July 17,

2017, the Secretary contends that her objections were untimely.

See Def.’s Resp. at 3.

     The Court disagrees with the Secretary that Ms. Xiaofeng’s

first objections were untimely, but the Court agrees that

Ms. Xiaofeng’s supplemental objections were not timely. Because

the Clerk of Court mailed the R&R to Ms. Xiaofeng’s address, the

Court treats her first objections as timely filed because the

deadline was extended by three days to July 20, 2017. See Fed.

R. Civ. P. 6(d) (adding three additional days when service is

made under Fed. R. Civ. P. 5(b)(2)(C) (service by mail to last

known address))); see also Def.’s Resp., ECF No. 24 at 12

(certifying service by mail to Ms. Xiaofeng’s address of

record). The Court, however, will not consider her untimely

supplemental objections. See Means v. District of Columbia, 999

F. Supp. 2d 128, 134 (D.D.C. 2013) (declining to consider the

merits of a party’s untimely objection to a magistrate judge’s

R&R).

     Having determined that Ms. Xiaofeng’s first objections were

timely, the Court next turns to those objections.

        C. Ms. Xiaofeng’s Objections

     In her objections, Ms. Xiaofeng states that she “wish[es]

to discuss and argue against dismissal of [her] hostile work

                                21
environment claim and language discrimination claim.” Pl.’s

Objs., ECF No. 22 at 1. She also states that she “wish[es] to

discuss EEO process issues at FSI.” Id. She attaches certain e-

mail communications and excerpts from a previous letter to her

supervisors. See id. at 8, 10-34. Finally, Ms. Xiaofeng asserts

allegations raised in her 2017 EEO complaint, arguing that:

(1) her supervisors rejected her multiple requests to attend a

leadership training program; and (2) the Associate Dean of the

FSI’s School of Language Studies denied her a detail opportunity

in August 2016. See id. at 7-8; see also Def.’s Ex. 2, ECF No.

24-2 at 4 (Formal Compl. June 2017) (stating that the Associate

Dean “rejected a detail opportunity that had been offered to

[her]” and “he has blocked three additional career advancement

opportunities.”), 5 (“I have applied three times for . . .

leadership training. All three times I was denied[.]”).

     Although Ms. Xiaofeng does not raise specific objections to

the R&R, see generally Pl.’s Objs., ECF No. 22 at 1-34, the

Secretary responds to them under the lenient construction

accorded pro se objections, see DiPilato, 662 F. Supp. 2d at

340. According to the Secretary, Ms. Xiaofeng’s objections are

“an apparent attempt to bolster her hostile work environment and

national origin discrimination claim[s]” and they “set[] forth a

number of additional allegations not previously raised in [her]



                               22
Amended Complaint.” Def.’s Resp., ECF No. 24 at 3. 10 The

Secretary makes three primary arguments to rebut Ms. Xiaofeng’s

objections. First, the Secretary contends that the Court should

exclude her allegations raised in her 2017 EEO complaint because

Ms. Xiaofeng did not exhaust her administrative remedies as to

those allegations. See Def.’s Resp., ECF No. 24 at 4-6. Next,

the Secretary argues that the alleged denial of the ability to

participate in a leadership training program in 2016 does not

support Ms. Xiaofeng’s national origin discrimination claim, see

id. at 6. Finally, the Secretary points out that Ms. Xiaofeng

improperly asserts new allegations in support of her hostile

work environment claim that merely “consist of discrete acts of

alleged retaliation which . . . do not constitute a pervasive

pattern of severe harassment.” Id. at 7. The Secretary goes on

to argue that Ms. Xiaofeng rehashes arguments that Magistrate

Judge Harvey aptly rejected. See id. at 8-9. The Court will

address each argument in turn.




10The Court rejects the Secretary’s argument that Ms. Xiaofeng’s
pleadings cannot be amended through her opposition brief, see
Def.’s Resp., ECF No. 24 at 3, because “the pro se litigant may,
“in effect, supplement his [or her] complaint with the
allegations included in his [or her] opposition.” Magowan v.
Lowery, 166 F. Supp. 3d 39, 58 (D.D.C. 2016) (quoting Brown v.
Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 152 (D.C. Cir.
2015)).
                                 23
             1. Ms. Xiaofeng Failed to Exhaust Her
                Administrative Remedies With Respect to the
                Allegations in the 2017 EEO Complaint

     In June 2017, Ms. Xiaofeng filed a formal complaint with

OCR, and, in July 2017, OCR accepted in part and dismissed in

part her allegations. See, e.g., Def.’s Resp., ECF No. 24 at 4;

Def.’s Ex. 2, ECF No. 24-2 at 4; Def.’s Ex. 1, ECF No. 24-1 at

1-6. Based on her 2017 EEO complaint, she was discriminated

against because of her national origin and “as acts of reprisal

for [her] prior protected EEO activity[.]” Def.’s Ex. 2, ECF No.

24-2 at 1. OCR identified three specific allegations: (1) she

was denied a detail opportunity in August 2016; (2) she has

“repeatedly been denied the opportunity to participate in

leadership training programs, as recent as August 2016”; and

(3) she was “subjected to a hostile work environment

characterized by, but not limited to rumors spread about [her].”

Id. The Secretary argues that the Court may not consider these

allegations because Ms. Xiaofeng did not exhaust her

administrative remedies as to those allegations. See Def.’s

Resp., ECF No. 24 at 3-6.

     Ms. Xiaofeng was required to exhaust her administrative

remedies before bringing her Title VII claims. See 42 U.S.C. §

2000e–16(c). “[I]f a plaintiff wishes to bring a suit in federal

court, his or her complaint must be pending before the agency or

the EEOC for at least 180 days, or plaintiff must be notified by

                               24
the EEOC of his or her right to sue through the issuance of a

right-to-sue letter, and bring suit within ninety days.” Greggs

v. Autism Speaks, Inc., 935 F. Supp. 2d 9, 12 (D.D.C. 2013)

(citing 42 U.S.C. §§ 2000e–5(f)(1), 2000e–16(c)); see also

Hunter v. District of Columbia, 905 F. Supp. 2d 364, 371–72

(D.D.C. 2012) (refusing to consider documents attached to pro se

objections to a R&R that plaintiff failed to submit during the

motion to dismiss briefing because such new evidence did not

show, among other things, that his suit was filed “after his

complaint had been pending before the EEOC for at least 180

days.”). “The purpose of the [administrative exhaustion]

doctrine is to afford the agency an opportunity to resolve the

matter internally and to avoid unnecessarily burdening the

courts.” Wilson v. Peña, 79 F.3d 154, 165 (D.C. Cir. 1996). The

Secretary bears the burden of showing that Ms. Xiaofeng failed

to exhaust her administrative remedies as to her Title VII

claims. See Johnson v. Billington, 404 F. Supp. 2d 157, 162

(D.D.C. 2005) (“Failure to exhaust administrative remedies is

considered an affirmative defense[,] .... [and] [a]s such, ‘the

defendant bears the burden of pleading and proving it.’”

(quoting Bowden v. United States, 106 F.3d 433, 438 (D.C. Cir.

1997))).

     The Secretary has met his burden. See id.; see also Def.’s

Resp., ECF No. 24 at 4-6. The Secretary correctly points out

                               25
that Ms. Xiaofeng’s allegations in her 2017 EEO complaint were

not raised in her amended complaint. Def.’s Resp., ECF No. 24 at

4. Rather, Ms. Xiaofeng raised the allegations in the 2017

complaint for the first time in her objections without

administrative exhaustion of those allegations. See Howard v.

Fenty, 580 F. Supp. 2d 86, 90 (D.D.C. 2008) (“Plaintiffs must

exhaust their Title VII claims prior to raising them for the

first time in a lawsuit, and the law in this Circuit is clear

that an allegation as to one type of discrimination does not

exhaust all administrative remedies as to another type of

alleged discrimination.”). Further, the EEOC could not have

completed its investigation of her claims in the 2017 complaint,

see 29 C.F.R. § 1614.108(f), or resolved the matter

administratively, see Greggs, 935 F. Supp. 2d at 13, between the

date that Ms. Xiaofeng filed her 2017 formal complaint (June 1,

2017) and the date that she filed her first objections to the

R&R (July 19, 2017). She does not argue that her failure to

exhaust administrative remedies should be excused under the

doctrine of equitable estoppel or equitable tolling. See Steele

v. Schafer, 535 F.3d 689, 693 (D.C. Cir. 2008) (“[A] court may

not consider a discrimination claim that has not been exhausted

in this manner absent a basis for equitable tolling.”). Because

the Court agrees with the Secretary that Ms. Xiaofeng’s

allegations raised in her 2017 complaint are not properly before

                               26
the Court, the Court therefore cannot consider them. 11

              2. Ms. Xiaofeng Has Failed to Sufficiently Plead a
                 National Origin Discrimination Claim

     Magistrate Judge Harvey found that Ms. Xiaofeng failed to

put forth sufficient facts to allege that her supervisors

discriminated against her based on her national origin and

accent. R&R, ECF No. 21 at 17-18. The Secretary contends that

nothing in Ms. Xiaofeng’s objections “warrant[] a departure”

from the R&R. Def.’s Resp., ECF No. 24 at 6. The Court agrees.

     Under Title VII, it is unlawful for an employer to

“discriminate against any individual with respect to his . . .

employment, because of such individual’s race, color, religion,

sex, or national origin.” 42 U.S.C. § 2000(e-2)(a)(1) (emphasis

added). Ms. Xiaofeng must establish “two essential elements”:

“(i) the plaintiff suffered an adverse employment action

(ii) because of the plaintiff’s race, color, religion, sex,

national origin, age, or disability.” Baloch v. Kempthorne, 550

F.3d 1191, 1196 (D.C. Cir. 2008). “To prevail on a motion to

dismiss, it is not necessary to establish a prima facie case[.]”


11 To the extent that Ms. Xiaofeng’s 2017 complaint presents new
issues, courts have recognized that Federal Rule of Civil Procedure
72(b) “does not permit a litigant to present new initiatives to
the district judge.” Taylor v. District of Columbia, 205 F. Supp.
3d 75, 89 (D.D.C. 2016) (quoting Aikens v. Shalala, 956 F. Supp.
14, 19 (D.D.C. 1997)). “[O]nly those issues that the parties have
raised in their objections to the Magistrate Judge’s [R&R] will be
reviewed by th[e] court.” M.O. v. District of Columbia, 20 F. Supp.
3d 31, 37 (D.D.C. 2013) (quoting Aikens, 956 F. Supp. at 19).
                                27
Greer v. Bd. of Trs. of the Univ. of the D.C., 113 F. Supp. 3d

297, 310 (D.D.C. 2015) (citing Gordon v. U.S. Capitol Police,

778 F.3d 158, 162 (D.C. Cir. 2015)). Nonetheless, Ms. Xiaofeng

“must allege ‘facts that, if true, would establish the elements

of each claim[.]’” Greer, 113 F. Supp. 3d at 310 (quoting

Tressler v. Nat’l R.R. Passenger Corp., 819 F. Supp. 2d 1, 5

(D.D.C. 2011)).

     Ms. Xiaofeng asserts that she repeatedly applied for GG-12

level positions and her supervisors refused to promote her to

those positions based on her national origin and accent. See

Pl.’s Opp’n, ECF No. 16 at 2; see also Pl.’s Objs., ECF No. 23

at 8. She insists that “she was better qualified than the

selectee[s]” and “there exists a preference for those whose

primary language is English” because “the last four promotions

to GG-12 [level positions] . . . each selectee was trained in

English while attending a Chinese university.” Def.’s Ex. 1, ECF

No. 12-2 at 9; see also Pl.’s Objs., ECF No. 23 at 8.

Ms. Xiaofeng appears to allege that her graduate-level degrees

and her many years of teaching experience show that her superior

qualifications entitled her to a GG-12 level promotion. See,

e.g., id. at 10; Pl.’s Objs., ECF No. 23 at 7; Def.’s Ex. 2, ECF

No. 12-2 at 24.

     “The Court can dispense with the [national origin

discrimination] claim quickly, as [her] argument[s] ha[ve] an

                               28
obvious shortcoming: [Ms. Xiaofeng] provides no facts that could

possibly give rise to an inference that any failure to [promote

her] was due to [national origin] discrimination.” Wu v. Special

Counsel, Inc., 54 F. Supp. 3d 48, 52 (D.D.C. 2014), aff’d sub

nom., No. 14-7159, 2015 WL 10761295 (D.C. Cir. Dec. 22, 2015).

Neither party disputes that “accent” and “national origin are

often intertwined,” Beaver v. McHugh, 840 F. Supp. 2d 161, 172-

73 (D.D.C. 2012), nor do they disagree that the failure to

promote constitutes an adverse employment action, see Ellerth,

524 U.S. at 761. “Even if speaking Mandarin were a proxy for

national origin . . . Title VII does not segregate people based

on years of education or native language study.” Wu, 54 F. Supp.

3d at 53 (citations omitted).

     In Wu, the plaintiff was a native Mandarin Chinese speaker

who argued that “he was discriminated against because of his

native language, and thus because of his national origin.” Id.

He alleged that he was denied employment because “he [was] more

educated in the language than other native speakers[.]” Id.    The

court dismissed his national origin discrimination claim because

the plaintiff did “not allege that any Defendant refused to hire

him because of his national origin, or even because of the

language he speaks[.]” Id.

     Ms. Xiaofeng has not done so here either. She does not

allege any facts to link her failure to receive promotions to

                                29
her national origin or accent. She fails to “plead facts

sufficient to show that her claim has substantive

plausibility[.]” Johnson v. City of Shelby, Miss., 135 S. Ct.

346, 347 (2014). As recognized by Magistrate Judge Harvey, the

gravamen of Ms. Xiaofeng’s national origin discrimination claim

is that her former colleague received a GG-12 level position

after she reported him to her supervisors for his alleged

misconduct, he later became a supervisor, and he subjected her

to mistreatment, harassment, and retaliation. See R&R, ECF No.

21 at 17; see also Def.’s Ex. 3, ECF No. 12-2 at 35. The Court

agrees with Magistrate Judge Harvey’s “generous reading of

Plaintiff’s pleadings” and finding that these allegations are

insufficient to state a claim for national origin

discrimination. R&R, ECF No. 21 at 17. Accordingly, the Court

adopts Magistrate Judge Harvey’s recommendation to dismiss

without prejudice the national origin discrimination claim.

             3. Ms. Xiaofeng Has Not Established a Plausible
                Hostile Work Environment Claim

     Ms. Xiaofeng’s “laundry list of allegations of harassment

and wrongful conduct are also not actionable as a hostile work

environment claim.” Wu, 54 F. Supp. 3d at 69. In her objections,

Ms. Xiaofeng asserts that for “[s]even years” she has been

“living in this fearful, hostile work environment” that has

“totally destroyed [her] enjoyment for the job, [her] dignity,


                               30
[her] concentration and pride.” Pl.’s Objs., ECF No. 22 at 1.

According to Ms. Xiaofeng, her supervisors “fabricated”

incidents of her poor performance, id., cited her for being

absent without leave when she was meeting with an EEO counselor,

id. at 2, denied her requests for leave, id. at 4, micromanaged

her work, id. at 4-5, removed her from a program coordinator

position in 2011 and 2013, id. at 5, and humiliated her in the

presence of her colleagues, id. at 5-6. The Secretary argues

that these incidents do not amount to actionable harassment

because “such allegations are not sufficiently severe or

pervasive to rise to the level necessary to support a hostile

work environment claim.” See Def.’s Resp., ECF No. 24 at 9

(citing Holmes-Martin v. Sebelius, 693 F. Supp. 2d 141, 165

(D.D.C. 2010)).

     “Harassment is actionable only when it rises to the level

of ‘permeat[ing] the workplace with discriminatory intimidation,

ridicule, and insult that is sufficiently severe or pervasive to

alter the conditions of the victim’s employment,’ and thereby

constitutes a hostile work environment.” Magowan, 166 F. Supp.

3d at 69 (quoting Stewart v. Evans, 275 F.3d 1126, 1133 (D.C.

Cir. 2002) (emphasis added)); see also Baird v. Gotbaum, 792

F.3d 166, 168 (D.C. Cir. 2015) (recognizing that a hostile work

environment claim is a “special type of retaliation claim” that

“consists of several individual acts that ‘may not be actionable

                               31
on [their] own’ but become actionable due to their “cumulative

effect.” (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.

101, 115 (2002)).

     The Court cannot deviate from Magistrate Judge Harvey’s

findings that Ms. Xiaofeng’s “allegations, by themselves, are

insufficient to establish a plausible hostile work environment.”

R&R, ECF No. 21 at 23. The Secretary correctly points out that

“many of the allegations in [Ms. Xiaofeng’s] [objections]

consist of discrete acts of alleged retaliation which, as

explained by the Magistrate Judge, do not constitute a pervasive

pattern of severe harassment.” Def.’s Resp., ECF No. 24 at 7

(citing R&R, ECF No. 21 at 23-24, n.8). It is clear that

Ms. Xiaofeng has alleged a number of incidents based on her

experience in FSI that caused her fear and humiliation, see

Pl.’s Objs., ECF No. 23 at 1-7, but those allegations do not

rise to the level of conduct that is sufficiently severe or

pervasive to state a hostile work environment claim. See Baird,

792 F.3d at 168–69 (“Title VII is aimed at preventing

discrimination, not auditing the responsiveness of human

resources departments[.]”). Further, Ms. Xiaofeng alleges no

links between the hostile work environment and her national

origin or accent. See Magowan, 166 F. Supp. 3d at 70 (dismissing

a hostile work environment claim where plaintiff made “no

allegation at all linking any harassment to her [protected]

                               32
status”). The Court therefore adopts Magistrate Judge Harvey’s

recommendation to dismiss without prejudice Ms. Xiaofeng’s

hostile work environment claim.

IV.   Conclusion

      For the reasons set forth above, the Court adopts

Magistrate Judge Harvey’s R&R. Accordingly, the Court GRANTS IN

PART and DENIES IN PART the Secretary’s motion to dismiss the

amended complaint. The Court DISMISSES without prejudice

Ms. Xiaofeng’s national origin discrimination and hostile work

environment claims. Ms. Xiaofeng’s remaining claim is her

retaliation claim as to her 2010, 2011, and 2014 EEO complaints.

An appropriate Order accompanies this Memorandum Opinion.

      SO ORDERED

      Signed:   Emmet G. Sullivan
                United States District Judge
                April 17, 2019




                                  33
