Mokhtar v. Kerry, Civil Action No.: 12–1734 RC

• Decision Date: 13 March 2015
• Docket Number: Civil Action No.: 12–1734 RC
• Citation: 83 F.Supp.3d 49
• Parties: Nadia Mokhtar, Plaintiff, v. John F. Kerry, in his official capacity as Secretary of State, Defendant.
• Court: U.S. District Court — District of Columbia

83 F.Supp.3d 49

Nadia Mokhtar, Plaintiff

v.John F. Kerry, in his official capacity as Secretary of State, Defendant.

Civil Action No.: 12–1734 RC

United States District Court, District of Columbia.

Signed March 13, 2015

Nadia Mokhtar, Lorton, VA, pro se.

Re Document No.: 87

MEMORANDUM OPINION

Granting Defendant's Motion For Summary Judgment

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

Plaintiff Nadia Mokhtar, an employee at the United States Department of State (the “Department”), brings this lawsuit pro se¹ against John F. Kerry, in his official capacity as Secretary of the Department, alleging violations of Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Age Discrimination in Employment Act (“ADEA”) during the course of her employment. Now before the Court is the Department's motion for summary judgment, through which the Department seeks judgment in its favor on the grounds that, first, Mokhtar failed to administratively exhaust many of her discrimination and retaliation claims before filing suit, and second, those remaining claims that were exhausted fail on the merits. For the reasons explained below, the Court will grant the Department's motion. In doing so, the Court denies some relief requested within the Department's administrative exhaustion analysis, but ultimately, the Court concludes that none of Mokhtar's remaining claims survive summary judgment on the merits.

II. FACTUAL BACKGROUND

Mokhtar, a sixty-seven year-old female, was at all relevant times, and remains today, a GG–11 Language and Culture Instructor at the Foreign Service Institute (“FSI”) of the State Department in the School of Language Studies, Near Eastern Central, and South Asian Languages Division. See Report of Investigation (“ROI”) Excerpts, ECF No. 87–3, Ex. A at 2425, 59, 122–23. Dr. Tagesir Elrayah, a GG–14 Supervisory Language Training Specialist, has been Mokhtar's first-line supervisor since October 2006. See id. at 58–59. Dr. James Bernhardt, a GG–15 Division Director, has been Mokhtar's second-line supervisor since 1993, except for a period from approximately 2002 to 2006, see id. at 96, which was when Mokhtar was assigned to work overseas as a Deputy Consular Officer. See Mokhtar Depo., ECF No. 87–4, Ex. B at 14:225. Mokhtar returned to work as a Language and Culture Instructor at the FSI's School of Language Studies after her overseas assignment concluded. See id.

A. Individualized Refresher Training Plan And Recertification

According to the description for the Language and Culture Instructor position, Mokhtar's responsibilities include “administer[ing] proficiency tests, both in the capacity of a tester and examiner[.]” ROI Excerpts, ECF No. 87–3, Ex. A at 124. Also according to the position description, Mokhtar's role as a Language and Culture Instructor requires her to possess “[s]kill in administering FSI language proficiency tests.” Id. at 125. While Mokhtar was working overseas as a Deputy Consular Officer, the “procedures, policies, and practices” for administering language proficiency examinations changed. See id. at 60, 84. In addition, between 2008 and January 2011, the FSI required that all testers and examiners get recertified, which Mokhtar had not done. See id. at 71–73; Mokhtar Depo., ECF No. 87–4, Ex. B at 132:915.

In March 2008, Philippe Casteuble, an employee in the School of Language Studies' Continuing Testing and Training (“CTT”) unit who was responsible for validating test scores as a quality control measure, observed that Mokhtar, when serving as an examiner during several FSI language proficiency tests between May 2007 and March 2008, scored the tests in a way that was contrary to the new procedures in place at that time. See ROI Excerpts, ECF No. 87–3, Ex. A at 60, 78, 85–86; see also Casteuble Depo., ECF No. 87–5, Ex. C at 11:5–11:25; Hoffman Depo., ECF No. 87–6, Ex. D at 21:5–8. For example, Mokhtar used non-standard testing practices as an examiner, and her testing decisions did not support the test scores that she was issuing. See ROI Excerpts, ECF No. 87–3, Ex. A at 78, 85. As a result, the test scores that Mokhtar had issued could not be validated by Casteuble. See id. at 78, 85–86. According to Dr. Elrayah, Mokhtar's scoring errors continued even though Casteuble had “met with her and discussed the [scoring] procedures after the initial tests.” Id. at 78.

On March 14, 2008, during a meeting attended by Mokhtar and Dr. Elrayah, Casteuble recommended that Mokhtar attend refresher training courses before she administrated any more tests. See id. In response, Mokhtar insisted that she did not want to attend the same training courses as new FSI employees and contractors, but she agreed to attend Individualized Refresher Training courses as an alternative. See id. at 85; Mokhtar Depo., ECF No. 87–4, Ex. B at 130:614, 142:9–16, 147:24–148:1. As a result, CTT personnel sent an examiner and tester Individualized Refresher Training plan to Mokhtar and discussed the plan with her. See ROI Excerpts, ECF No. 87–3, Ex. A at 77–80, 87; Mokhtar Depo., ECF No. 87–4, Ex. B at 142:9–16. As of June 2010, however, Mokhtar had not completed the examiner portion of the Individualized Refresher Training plan. See ROI Excerpts, ECF No. 87–3, Ex. A at 88; Mokhtar Depo., ECF No. 87–4, Ex. B at 146:11–21. Thus, on June 14, 2010, CTT personnel informed Dr. Elrayah that Mokhtar had not complied with, nor responded to, the examiner training plan that was sent to her in March 2008. See ROI Excerpts, ECF No. 87–3, Ex. A at 84, 88.

On July 14, 2010, Mokhtar signed a mid-year performance review form that was presented to her by Dr. Elrayah in which she agreed to obtain both the testing and language examiner recertifications before the end of the ratings year in December 2010. See id. at 61, 118; Mokhtar Depo., ECF No. 87–4, Ex. B at 117:23–118:9. Mokhtar had completed the testing recertification in April 2010, but she did not complete the examiner recertification by the end of 2010. See ROI Excerpts, ECF No. 87–3, Ex. A at 60; Mokhtar Depo., ECF No. 87–4, Ex. B at 119:21–120:5. For example, Mokhtar failed to properly administer an exam under observation as part of the examiner recertification, see Mokhtar Depo., ECF No. 100–1, Ex. 3 at 87:17–88:20, and she made other examiner errors as well. See Mokhtar Depo., ECF No. 87–4, Ex. B at 148:16–22. Mokhtar has acknowledged that in 2010, she was expected to perform testing and examining as part of her job duties and for her end-of-year performance review. See id. ; Mokhtar Depo., ECF No. 100–1, Ex. 3 at 149:1–18.

B. Non–Selection For Unspecified Promotions And Volunteer Positions

On June 15, 2010, Mokhtar mentioned to Dr. Elrayah during a meeting and in a follow-up email that she was not selected for two management positions for which she had applied, though the names of those positions were not provided. See ROI Excerpts, ECF No. 87–3, Ex. A at 82. In addition, Mokhtar complained to Dr. Elrayah that she was not respected by the section and that she had been humiliated through the denial of her promotions for these unspecified positions. See id. Mokhtar also expressed during this meeting that she was more qualified for the positions than those whom were selected. See id. In her deposition, Mokhtar stated that she applied for two unnamed positions outside the FSI sometime in 2007 and 2008, and that she has not applied for any other positions since then. See Mokhtar Depo., ECF No. 87–4, Ex. B at 179:23–180:20, 190:3–20. Additionally, Mokhtar was denied the opportunity to take a volunteer position in Iraq in 2008.² See Mokhtar Depo., ECF No. 100–1, Ex. 3 at 24:9–23, 170:1–8.

C. Consular Training Module Project

Around August and September 2010, Mokhtar began working on a consular training module project in which she attempted to prepare a training module that would be used to teach the Egyptian Arabic dialect. See ROI Excerpts, ECF No. 87–3, Ex. A at 41–56. Mokhtar was not assigned this module project by anyone at the FSI, but rather came up with the idea on her own. See Mokhtar Depo., ECF No. 100–1, Ex. 3 at 28:1–4. Her tasks for this project included preparing the content and setting up audio and video recordings. See id. at 28:6–10; ROI Excerpts, ECF No. 87–3, Ex. A at 53; Mokhtar Aff., ECF No. 100–1, Ex. 4 at ¶ 9. Before Mokhtar could complete the project, however, FSI received authorization to simultaneously develop uniform consular training modules for all Arabic dialects. See Bohsali Depo., ECF No. 87–7, Ex. E at 12:8–13:1. FSI then started a new development project for a consular module that was designed for multiple dialects, and FSI also cancelled the development of Mokhtar's Egyptian Arabic-specific dialect module, which did not follow the same design as the multi-dialect module. See id. An Egyptian Arabic-specific module project was restarted a few months later with Dalia Abdelmaguid in charge. See Mokhtar Depo., ECF No. 100–1, Ex. 3 at 36:8–18, 37:7–10.

D. Confrontation With A Student And Failure To File A Report

In December 2010, Mokhtar was involved in a verbal altercation with a School of Language Studies student regarding a classroom reservation. See ROI Excerpts, ECF No. 87–3, Ex. A at 92–93. Mokhtar and the student later resolved the matter through a mediation session. See Mokhtar Depo., ECF No. 87–4, Ex. B at 166:4–7, 167:21–168:4. Following this incident, the student informed Dr. Elrayah that Mokhtar had missed two language consultation appointments. See ROI Excerpts, ECF No. 87–3, Ex. A at 89–91; Mokhtar Aff., ECF No. 100–1, Ex. 4 at ¶ 5. On January 4 and January 7, 2011, Dr. Elrayah asked Mokhtar to provide him with a report of her learning consultation meetings with students in 2010, including the number of meetings she scheduled, conducted, and missed with each of the students who were assigned to her as their learning consultant.See ROI Excepts, ECF No. 87–3, Ex. A at 91. Dr. Elrayah explained that this report would be considered as part of...