UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) JOSEPHINE CHIEN, ) ) Plaintiff, ) ) v. ) Case No. 16-cv-01583 (APM) ) MARCO RUBIO,1 ) in his official capacity as U.S. Secretary of State, ) ) Defendant. ) _________________________________________ )

MEMORANDUM OPINION AND ORDER

I.

Pending before the court are the parties’ post-trial motions in this case brought under

Title VII.2 Defendant seeks entry of judgment as a matter of law on the sole count of retaliation

on which Plaintiff Josephine Chien prevailed at trial. Def.’s Mot. for J. as a Matter of Law or, in

the Alternative, for a New Trial or Remittitur, ECF No. 106 [hereinafter Def.’s Mot.], Mem. of

P. & A. in Supp. of Def.’s Mot., ECF No. 106-1 [hereinafter Def.’s Mem.], at 13–25. At the

relevant time, Plaintiff was an Assistant Regional Security Officer (ARSO) at the U.S. Embassy

in Jakarta, Indonesia. The jury found that Plaintiff’s supervisor retaliated against her by assigning

her a disproportionate number of duty weeks relative her colleagues. Defendant maintains that

these additional duty weeks were not sufficiently adverse to support the verdict. Id. Alternatively,

Defendant asks for a new trial on liability or remittitur of the $650,000 the jury awarded on that

single claim. Id. at 25–33.

1 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the court substitutes the current Secretary of State as the defendant in this case. 2 This decision is a long overdue. The court apologizes to the parties for the time it has taken to rule on the motions. Plaintiff also seeks entry of judgment on a different claim, albeit in an unusual procedural

posture. At trial, Plaintiff asserted a discrimination claim based on race or sex related to the denial

of a career-enhancing, temporary assignment in Kuala Lumpur, Malaysia. Pl.’s Mot. for Recons.

& to Amend Verdict on the Kuala Lumpur Discrimination Claim, ECF No. 110 [hereinafter Pl.’s

Mot.], Mem. of P. & A. in Supp. of Pl.’s Mot., ECF No. 110-1 [hereinafter Pl.’s Mem.], at 2.

Consistent with then-binding D.C. Circuit precedent, the court instructed the jury that, to find that

the denial was materially adverse, it had to be “a significant change in employment status,” which

could include “materially adverse consequences affecting the terms, conditions, or privileges of

. . . future employment opportunities.” Jury Instructions, ECF No. 95, at 12; Trial Tr. (3/8/22),

ECF No. 126, at 70:20–73:13. The jury found that Plaintiff’s race or sex was the but-for cause of

the denied assignment but nevertheless ruled in favor of Defendant because it found that the denial

was not a materially adverse action. Jury Verdict, ECF No. 101, at 1.

Then, the controlling law changed. In Chambers v. District of Columbia, the D.C. Circuit

held that a Title VII discrimination plaintiff no longer had to prove “objectively tangible harm” to

make out a claim; rather, once the plaintiff has shown that “an employer has discriminated against

an employee with respect to that employee’s ‘terms, conditions, or privileges of employment’

because of a protected characteristic, the analysis is complete.”

, 874–75 (D.C. Cir.

2022) (en banc). Plaintiff contends that Chambers requires the court to undo the jury’s verdict and

enter judgment in her favor on the Kuala Lumpur discrimination claim. As she puts it:

“Considering this clarification of Title VII law, Plaintiff Chien has proven all she is required to

prove on her discrimination claim, and judgment as a matter of law must be entered on behalf of

the Plaintiff.” Pl.’s Mem. at 1. Defendant opposes entry of judgment but alternatively urges the

2 court to grant no more than a new trial. Def.’s Mem. in Opp’n to Pl.’s Mot., ECF No. 112

[hereinafter Def.’s Opp’n], at 2–3, 11–12.

The court presumes the parties’ familiarity with the factual record, so does not detail it in

this decision except as needed to resolve the motions. For the reasons explained below, the court

denies Defendant’s requests for entry of judgment or remittitur, and it grants Plaintiff a new trial

as to her discrimination claim.

II.

A.

The court begins by denying Defendant’s request to enter judgment in its favor on the

retaliation claim. In the present posture, post-verdict, “[j]udgment as a matter of law is appropriate

only if ‘the evidence and all reasonable inferences that can be drawn therefrom are so one-sided

that reasonable men and women could not’ have reached a verdict in plaintiff’s favor.” McGill v.

Munoz,

(D.C. Cir. 2000) (citation omitted). A court may not “lightly disturb a

jury verdict.”

First, the relevant legal principles. As the court instructed the jury—and Defendant does

not dispute the instruction—an action qualifies as materially adverse for a retaliation claim if

“[a] reasonable employee might well be dissuaded from filing an EEO complaint if she thought

that her employer would retaliate by burying her in work.” Jury Instructions at 16. The text for

that instruction came directly from the D.C. Circuit’s decision in Mogenhan v. Napolitano,

(D.C. Cir. 2010). Mogenhan relied on an earlier D.C. Circuit decision,

Mayers v. Laborers’ Health & Safety Fund of N. Am.,

(D.C. Cir. 2007). Quoting

Mayers, the court in Mogenhan wrote that “ordinarily, ‘increas[ing an employee’s] workload and

tighten[ing] her deadlines in retaliation for her seeking a reasonable accommodation . . . might

3 suffice to defeat summary judgment on a retaliation claim.’”

(alteration in original) (quoting

Mayers,

).

Now the evidence. Plaintiff testified that it was not desirable to be put on duty weeks.

Trial Tr. (3/1/22 AM), ECF No. 121, at 67:22-23. They required an agent to be “on call 24/7 for

all kinds of responses, emergency or nonemergency.” Id. at 67:16-21. Taking such calls “within

or outside of the office hours” was “extra work on top of your assigned programs already.” Id.

68:1-4. She added that, “if you’re the duty agent, you cannot leave, not just the District, but you

cannot leave the city . . . because you need to respond within one hour. And in Jakarta, that

basically means you cannot go anywhere.” Id. at 68:5-8. Officers regularly took trips outside of

Jakarta for “morale purposes,” which duty weeks prevented. Id. at 68:9-10. “[J]ust the fact that

you are limited of what you can do outside of your office hours,” Plaintiff testified, “is not very

desirable for everybody.” Id. at 68:17-19.3 Plaintiff’s supervisor, Robert Castro, corroborated

Plaintiff’s description of the burdens associated with duty weeks. Trial Tr. (3/7/22 PM),

ECF No. 137, at 49:25–50:19.

This evidence was sufficient to sustain the verdict under Mogenhan and Mayers.

A reasonable jury could find that the assignment of additional duty weeks could discourage or

dissuade a reasonable security officer in Plaintiff’s position from engaging in protected activity.

The addition of duty weeks substantially burdened personal time and restricted freedom of

movement; carried the potential of substantial additional work; and required the officer to take

calls for events as serious as terrorist attacks, fires, and kidnappings. Id. at 50:12-19. Defendant

argues that these extra duties were “trivial” or “minor annoyance[s],” Def.’s Mot. at 24, but the

jury concluded otherwise. See Jury Instructions at 16 (instructing the jury that “[p]etty slights”

3 Plaintiff added that agents assigned to duty week also had to abstain from drinking alcohol, though this was not a problem for her as she did not drink. Id. at 68:12-17.

4 and “minor annoyances” were not enough to deter future protected activities). A reasonable jury

thus could find that assigning Plaintiff four duty weeks in a 12-week span, when ordinarily she

would serve in that capacity once every eight weeks, was a materially adverse action. Trial Tr.

(3/1/22 AM) at 68:20–69:12 (“But it came to my attention that within a 12-week span, I was

assigned four duty weeks. So that leaves the eight remaining weeks for six agents to share. That’s

definitely not on a rotational basis.”).

Defendant attempts to further downplay the significance of the extra duty-week

assignments by pointing out that Plaintiff did not actually incur any additional burdens during

those weeks. Defendant argues that Plaintiff did not actually serve four duty weeks, but only three,

and that she failed to show that “she needed to respond to one or more emergencies during the

weeks that she was assigned that required her to put in extra hours or work.” Def.’s Mot. at 22–

23. At most, Defendant contends, she “showed only that during one of her duty weeks, Plaintiff

received one phone call.” Id. But those assertions miss the point. “An adverse employment action

becomes cognizable when the employer provides notice of the action to the employee, ‘regardless

of whether the employer follows through.’” Van Horn v. Del Toro, No. 23-5169,

, at *3 (D.C. Cir. Oct. 3, 2024) (quoting Singletary v. Howard Univ.,

(D.C. Cir. 2019)). So, the additional duty weeks were adverse employment actions upon

assignment. Defendant cannot shield itself from liability just because nothing extraordinary

happened during those weeks.4

4 As for Defendant’s contention that the evidence did not show Plaintiff was assigned extra duty weeks compared to her colleagues, the court must defer to the jury’s weighing of the evidence. See Def.’s Mot. at 20–23 & n.7, 8; see, e.g., id. at 20 (“According to the revised Duty Schedule from August 2016, all four of the regular ARSOs (Special Agents Chien, Bjelajac, Wallace, and Williams) were assigned either three or four weeks between April and August 2016.”). Plaintiff presented evidence to the contrary. See, e.g., Trial Tr. (3/1/22 AM) at 68:20–69:12 (“But it came to my attention that within a 12-week span, I was assigned four duty weeks. So that leaves the eight remaining weeks for six agents to share. That’s definitely not on a rotational basis.”). Defendant cites cases for the proposition that Plaintiff should not receive the benefit of the contradictory evidence. See Def.’s Mot. at 21–22 n.7. But those cases so held in the context of a motion for summary judgment. The jury’s very purpose is to resolve evidentiary

5 Defendant cites cases from this District for the proposition that for added workload to be

considered adverse, it must be a “significant,” “great,” or “dramatic” increase, and the extra duty

weeks falls short. Def.’s Mot. at 14 (first citing Walkden v. Patient-Centered Outcomes Rsch. Inst.,

(D.D.C. 2016); then citing Allen v. Napolitano,

(D.D.C. 2011)). But to the extent such descriptors place any greater burden on a plaintiff than

what is required under Mogenhan and Mayers, the court does not find those cases helpful.

Moreover, none of those cases involved a jury verdict; they were decided on summary judgment.

So, to the extent they differ factually, the court here affords greater deference to the jury’s

determination than to the finding of a trial court on summary judgment. See also Def.’s Mot. at

15–16 (describing additional cases decided on summary judgment).

B.

For these same reasons, the court denies Defendant’s request for a new trial. The jury’s

verdict on the retaliation claim was not “against the weight of evidence.” McNeal v. Hi-Lo

Powered Scaffolding, Inc.,

(D.C. Cir. 1988).

C.

The court now turns to Defendant’s request for a new trial on damages unless Plaintiff

agrees to a remittitur of the jury’s award from $650,000 to $50,000. Def.’s Mot. at 26–33.

According to Defendant, “an award of $650,000 based on Plaintiff’s having to serve two extra ‘on

call’ weeks is facially ‘beyond all reason,’ and is so obviously outside the reasonable range for the

facts of this case that either a new trial on damages or remittitur is required.” Id. at 29 (citation

contradictions. See Tennant v. Peoria & P. U. Ry. Co.,

(1944) (“The very essence of [a jury’s] function is to select from among conflicting inferences and conclusions that which it considers most reasonable.”). This jury evidently resolved any evidentiary contradictions in favor of Plaintiff.

6 omitted). Plaintiff agrees that the award must be reduced to $300,000, Title VII’s statutory

damages cap, but protests any further reduction. Pl.’s Opp’n at 26–34.

The D.C. Circuit’s decision in Peyton v. DiMario provides the framework for evaluating a

remittitur request in a Title VII case. In Peyton, the jury awarded the plaintiff $482,000 in

compensatory damages after she prevailed on her hostile work environment and retaliation claims,

which the trial court reduced to the statutory maximum of $300,000.

(D.C.

Cir. 2002). On appeal, the defendant argued that “the harm to [the plaintiff] was not serious enough

to warrant the maximum penalty under the law, particularly when compared to other Title VII

cases.”

. In deciding whether the trial court abused its discretion in refusing to reduce

the award beyond the statutory cap, the court said it “will only require remittitur when (1) the

verdict is beyond all reason, so as to shock the conscience, or (2) the verdict is so inordinately

large as to obviously exceed the maximum limit of a reasonable range within which the jury may

properly operate.”

The court emphasized that an award at Title VII’s statutory cap was not

reserved only for those cases involving the worst offenders. See

. “[A]ppellant provides

no authority for the proposition that cases involving some perceived or even evident degree of

injury less than the most egregious must inherently be awarded some figure lower than the cap.”

Id.; see also

(“By its plain language, [Title VII] does nothing other than provide a cap.”). Trial

courts therefore must avoid the temptation of evaluating a jury’s award based on a sliding-scale of

perceived egregiousness. Instead, “the proper approach is to determine whether the judgment

awarded, regardless of whether it is the statutory maximum, is supported by the evidence, and does

not shock the conscience, or is not inordinately large so as to be obviously unreasonable.”

Applying that framework, the court in Peyton determined that the trial court had not abused

its discretion. It noted that the court had found that the plaintiff “presented convincing and credible

7 evidence proving that her co-workers’ and supervisors’ conduct had a material effect upon her

ability to perform and upon her quality of life in the workplace.”

(internal quotation

marks omitted). Further, “the plaintiff convinced the jury, by a preponderance of the evidence,

that she had been the victim of retaliation, that she was distressed and that she was fearful about

her work environment,” including that she had reported “feelings of depression and sadness typical

of plaintiffs in Title VII cases.”

(internal quotation marks omitted). Based on that evidence,

the court declined to disturb the plaintiff’s $300,000 compensatory damages award.

The record evidence of harm in this case is not all that different than in Peyton. Asked how

her supervisor’s actions had affected her, Plaintiff responded that she felt “helpless, hopeless.”

Trial Tr. (3/1/22 PM), ECF No. 117, at 23:17. She described in detail the physical and

psychological impacts that she suffered: She “couldn’t sleep,” “had anxieties episodes,” and

“started experiencing acute symptomatic heart palpitation and irregular beats.” Id. at 24:1-3. She

also had “shingles,” would “break out in hives,” and had “eating problems.” Id. at 24:4-7, 24:15.

She reported waking in the middle of the night “wired thinking about what happened today, what

happened two days ago,” and wondering, “What is going to happen to me today, this morning,

when I go into the office?” Id. at 24:8-11. She “had no hope, nothing to look forward to.” Id. at

24:23-24. The impact was so great that Plaintiff contemplated asking for curtailment, that is, early

release from her assignment. Id. at 25:2. The court recalls this testimony. It was raw and

emotional, and the jury was free to credit it wholly.

Plaintiff’s clinical psychologist, Dr. Marcella Marcey, corroborated Plaintiff’s testimony.

Dr. Marcey first met Plaintiff via teleconference when she was stationed in Jakarta and described

her as being in “very difficult straits at that time.” Trial Tr. (3/2/22 PM), ECF No. 118, at 84:19–

85:5. She initially diagnosed her with “major depression, first episode, moderate.” Id. at 85:12-

8 14. She also confirmed Plaintiff’s physical symptomology, recalling that when they first met

Plaintiff had “shingles” and “multiple physical ailments that were making her life a misery.” Id.

at 89:7-10. Based on Dr. Marcey’s testimony, the court easily rejects Defendant’s contention that

Plaintiff “did not furnish any expert report or testimony regarding any physical, emotional, or

psychological condition.” Def.’s Mot. at 29. The jury reasonably could have viewed Dr. Marcey’s

testimony as reinforcing the seriousness of Plaintiff’s conditions.

The jury also could have considered her emotional injuries aggravated by her employer’s

callous disregard for her welfare. Cf. Vasquez v. District of Columbia,

(D.C. Cir.

2024) (affirming damages award in a tort action where “[t]he jury could have reasonably found

that the callous actions and stinging epithets of District of Columbia officials” supported the

award). Plaintiff testified that, although she reached out to people within and outside the embassy

for assistance, she “received no help, no support.” Trial Tr. (3/1/22 PM) at 23:12-17. She felt

“isolated,” id. at 23:15, as if “nobody,” “no one” was “coming to [her] aid,” id. at 24:25–25:1.

Eventually, Plaintiff was able to connect with Dr. Marcey, which she described as “grabb[ing]

[on]to a piece of wood as I was drowning, like, finally someone can listen to me and—and I can

just try to understand what is happening to me.” Id. at 25:10-16. The jury reasonably could have

found that Plaintiff’s despair was particularly acute.

To be sure, a reasonable jury could not have found that all of Plaintiff’s psychological

problems arose from workplace retaliation. Dr. Marcey testified that she eventually diagnosed

Plaintiff with post-traumatic stress disorder, Trial Tr. (3/1/22 PM) at 85:18–87:17, and in a pretrial

in limine ruling, the court disallowed testimony from Dr. Marcey about causation, Trial Tr. (2/28/22

AM), ECF No. 120, at 8:13–10:14. The jury was instructed that it “may not award damages that

were caused by any other action or inaction by the State Department or otherwise,” Jury

9 Instructions at 21, so it could not award damages for any pre-existing condition. But it certainly

could take her vulnerabilities into account and find that the retaliatory conduct exacerbated them.

Cf. Canterbury v. Spence,

(D.C. Cir. 1972) (“A tortfeasor takes his victim as he

finds him . . . .”).

Defendant urges the court to remit the award because other courts have done so in similar

cases where the plaintiff suffered “modest injuries.” Def.’s Mot. at 31. But the D.C. Circuit has

said that “it is awkward to discuss the size of an award through comparison with past decisions”

because the circumstances of cases are unique and adjustment for inflation must be considered.

Peyton,

(internal quotation marks and citation omitted). Further, courts “must be

especially hesitant to disturb a jury’s determination of damages in cases involving intangible and

non-economic injuries.” Vasquez,

(internal quotation marks and citation omitted).

Here, because the damages award was exclusively non-economic and “thus particularly

within the province of the jury’s subjective judgment,”

and because the amount of the award

is not so much as to “shock the conscience” or “so inordinately large as to obviously exceed the

maximum limit of a reasonable range within which the jury may properly operate,” Peyton,

, the court will not remit the jury’s award. The court, however, will reduce the

award to the statutory maximum cap of $300,000.

III.

The court now turns to Plaintiff’s motion for entry of judgment on the Kuala Lumpur

discrimination claim. Defendant advances two arguments in opposition. First, he contends that

neither Federal Rule of Civil Procedure 59 nor 60 permit the court to effectively undo a jury’s

verdict and enter judgment in favor of the losing party. Def.’s Opp’n at 5–7. Second, he argues

that Plaintiff cannot prevail on the merits because Chambers is limited only to private-sector

10 discrimination claims under Title VII and, because this case involves federal employment,

Chambers does not apply.

at 7–10. The court disagrees with the latter contention, and does

not need to reach the former because, as explained below, a Supreme Court decision issued after

Chambers requires the claim’s submission to a new jury for consideration.

As to Defendant’s assertion that Chambers does not apply to federal-sector discrimination

claims, the court believes that every judge in this District to have considered this argument has

rejected it. See, e.g., Rhone v. Rubio, No. 24-cv-3389 (RC),

, at *4 (D.D.C. Oct.

28, 2025); Wilson v. Noem, No. 20-cv-100 (GMH),

, at *21–22 (D.D.C. Apr. 3,

2025) (collecting cases). This court did so in Garza v. Blinken, No. 21-cv-02770 (APM),

, at *5 (D.D.C. Feb. 27, 2023), and reaffirms that decision here. Chambers applies to

federal-sector discrimination cases. Cf. Van Horn,

, at *3 (applying Chambers’s

holding to a federal-sector age discrimination case).

But Chambers is not the end of the story. Following that decision, the Supreme Court

decided Muldrow v. City of St. Louis,

(2024). Muldrow clarified that Title VII

requires an employee alleging discrimination related to a job transfer to show only that the transfer

“brought about some ‘disadvantageous’ change in an employment term or condition.”

at 354

(quoting Oncale v. Sundowner Offshore Servs.,

(1998)). The Court emphasized,

however, “[w]hat the transferee does not have to show . . . is that the harm incurred was significant”

or “serious, or substantial, or any other similar adjective.”

(internal quotation marks and

citation omitted). In a concurring opinion, Justice Kavanaugh expressed the view that requiring a

plaintiff in a discriminatory-transfer case to make a showing of at least “some harm” beyond the

discrimination itself is more than what Title VII requires, and he pointed to Chambers for that

11 proposition. See id. at 364 (Kavanaugh, J., concurring). He emphasized, however, that the “some-

harm requirement appears to be a relatively low bar.” Id. at 365.

Muldrow counsels against directing a verdict on Plaintiff’s discrimination claim, even if

the court has the power to grant it. Muldrow’s holding that a Title VII plaintiff must show “some

harm” from a forced transfer likely applies to the denied temporary duty assignment in Kuala

Lumpur. The court can discern no difference between the two actions for Title VII purposes.

And Muldrow applies retroactively. See Harper v. Va. Dep’t of Taxation,

(1993)

(“When this Court applies a rule of federal law to the parties before it, that rule is the controlling

interpretation of federal law and must be given full retroactive effect in all cases still open on direct

review and as to all events, regardless of whether such events predate or postdate our

announcement of the rule.”). Although the “some harm” standard is less stringent than the pre-

Chambers standard on which the court instructed the jury, whether Plaintiff can meet her burden

under Muldrow is best left to a jury in the first instance.

Accordingly, the court denies Plaintiff’s request for entry of judgment as to the Kuala

Lumpur discrimination claim but grants her a new trial on that claim.

IV.

For the above reasons, the court denies Defendant’s Motion for Judgment as a Matter of

Law or, in the Alternative, for a New Trial or Remittitur, ECF No. 106, and grants Plaintiff’s

Motion for Reconsideration and to Amend Verdict on the Kuala Lumpur Discrimination Claim,

ECF No. 110, insofar as she is entitled to a new trial.

Dated: November 21, 2025 Amit P. Mehta United States District Judge

12