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Artash K. Hovsepyan v. Joaquin F. Blaya

March 18, 2011

ARTASH K. HOVSEPYAN, PLAINTIFF,
v.
JOAQUIN F. BLAYA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

In this employment discrimination action brought pro se, Artash K. Hovsepyan brought suit against his former employer, Voice of America ("VOA"), a division of the Broadcasting Board of Governors (the "Board"). Mr. Hovsepyan alleges that VOA discriminated against him on the bases of his age (57) and disability resulting from a "massive heart attack."*fn1 Compl. at 5. He also claims that his firing on June 27, 2007, was in retaliation for his equal employment opportunity ("EEO") and whistleblowing activities. See id. at 13. The Board*fn2 moves to dismiss the complaint or for summary judgment. See Mot. to Dismiss or for Summ. J. ("Def.'s Mot.") [Dkt. # 14]. Mr. Hovsepyan has moved three times for summary judgment or for a jury trial [Dkt. ## 19, 30, 33] and twice for the appointment of counsel [Dkt. ## 3, 32]. Upon consideration of the parties' submissions and the entire voluminous record, the Court will grant in part and deny in part the Board's dispositive motion, deny Mr. Hovsepyan's motions for summary judgment, and grant his motion to appoint counsel. All claims will be dismissed except the retaliation claim.

I. BACKGROUND

The facts relevant to the identifiable claims of the complaint, which the Court has liberally construed, are as follows. Mr. Hovsepyan worked for VOA's Armenian Service from May 30, 1993, to June 29, 2007. At the time of his firing at age 57, Mr. Hovsepyan was a GS-12 International Broadcaster in VOA's Near East and Central Asia Division, Armenian Service.

A. Disability Discrimination Claim

In November 2003, Mr. Hovsepyan suffered a heart attack. He worked from home and returned to work full time in May 2004. Def.'s Statement of Material Facts Not in Dispute ("Def.'s Facts") [Dkt. # 14] ¶ 7. According to Mr. Hovsepyan, he suffered a "massive" heart attack and "gradually started back to full time duty since [sic] February 2005." Pl.'s Replies to "Defendant's Statements of Material Facts Not in Dispute" ("Pl.'s Facts") [Dkt. # 20-1] at 4. On April 26, 2005, Mr. Hovsepyan's supervisor, Armenian Service Chief Araxie Vann, asked him to provide an update of his health status, and on August 24, 2006, she asked him "for additional medical documentation . . . to determine if [he] still needed accommodation to work in a light duty status." Def.'s Facts ¶¶ 8-9. Mr. Hovsepyan allegedly "replied that he no longer considered himself working in light duty status since May 4, 2004 and that he required no accommodation." Id. ¶ 9. According to Mr. Hovsepyan, he "had never 'complained on physical aspect of his job' . . . never told Ms. Vann that his job was 'challenging at times due to his medical condition' . . . [and never] asked Ms. Vann 'for an accommodation' since the end of December 2003 after his Massive heart attack." Pl.'s Facts at 5.

B. Age Discrimination Claim

In early September 2004, VOA allegedly stopped "training [Mr. Hovsepyan] to become a host for the Armenian Air shows" while continuing to train a contractor sixteen years younger than he and "gave the same opportunity to another contractor . . . who was almost twelve . . . years younger" than he. Compl. at 5.

C. Retaliation Claim

1. Mr. Hovsepyan's Alleged Whistleblower Activity

On January 14, 2005, Mr. Hovsepyan attended a staff meeting of the Armenian Service. According to VOA, Mr. Hovsepyan "complained about the quality of the work being done by the Armenian Service." Def.'s Facts ¶ 4. According to Mr. Hovsepyan, "Armenian Service members discussed in details the ways to improve the quality of work . . . ," he "made a suggestion to conduct live shows and added, that he was ready to conduct it," and that "[t]he meeting was calm." Pl.'s Facts at 2. Mr. Hovsepyan then attended another meeting in the office of the Chief of the Near East and Central Asia Division, where he, Ms. Vann, and Division Chief Ismail Dahiyat discussed the quality of the Service's work. Def.'s Facts ¶ 5. Mr. Hovsepyan seems to agree that the meeting took place, but he "strongly disagrees" that he "and his wife, Ms. Abajyan[,] were called to Mr. Dahiyat's office on January 14, 2005 to 'discuss quality of the Armenian Service's work.' " Pl.'s Facts at 3. Mr. Hovsepyan states that during the meeting, in response to Ms. Vann's "request to express his opinion on the work the Armenian Service was performing, [he stated] that the quality of work at the Service was not good, and actually [] had gone down because 'we are making all kinds of mistakes.' " Pl.'s Mot. Against Def.'s Mem. of P. & A. in Supp. of Def.'s Mot. to Dismiss, or in the Alternative, for Summ. J. ("Pl.'s Opp'n Mem.") [Dkt. # 20] at 13.

On April 25, 2005, Mr. Hovsepyan, Ms. Vann, and Mr. Dahiyat attended a meeting of the Armenian Service that was also attended by independent contractor Lusine Kalasyan and, according to Mr. Hovsepyan, two other contractors, Ms. Abajyan and Vahagn Babayan. Def.'s Facts ¶ 6; Pl.'s Facts at 3. During the meeting, Mr. Hovsepyan accused the Service of misusing funds and stated "that the work product of Ms[es]. Vann . . . Kalashyan and [] Babayan [] was of unacceptable quality." Def.'s Facts ¶ 6. Mr. Hovsepyan asserts that Mr. Dahiyat "organized" the meeting "to pursue [sic] the Plaintiff not to complain on Ms. Vann's wrongdoings further, as several days before, on April 22, 2005[,] Plaintiff had taken his grievances on Ms. Vann's wrongdoings to Armenian Program Review" attended by "many high ranking Agency officials." Pl.'s Facts at 3.

2. Mr. Hovsepyan's Job Performance and Termination In May 2004, the Armenian Service changed its broadcasting format to television only, and Mr. Hovsepyan was given a new position as a television broadcaster. Def.'s Facts ¶¶ 10, 12. VOA later provided Mr. Hovsepyan with a description of his new duties and performance standards, which he acknowledged on May 19, 2005. Id. ¶¶ 12-14. Mr. Hovsepyan states that he "was given a new position description from September 2004 to April 2005 which was (TV) translation, and he was performing according to his new position description." Pl.'s Facts at 6, ¶ 12. He agrees that he was notified about new performance standards for the position of television broadcaster in May 2005. Id. ¶¶ 13, 14.

Mr. Hovsepyan received a letter of admonishment from Ms. Vann on September 14, 2005, "for inappropriate and disruptive behavior," based on their encounters on July 6 and July 11, 2005, and two incidents on July 25, 2005. Def.'s Mot., Ex. 38 [Dkt. # 14-29]. Ms. Vann wrote that on July 6, after having completed an assigned translation of approximately seven minutes of program material, Mr. Hovsepyan "threw it on [her] desk and said 'You are loading me like a donkey. You shouldn't be allowed to do that.' " On July 11, Mr. Hovsepyan "argued with [her] during a staff meeting about why [his] wife is no longer editing . . . and . . . 'why her job was taken away from her' or words to that effect." On July 25, Mr. Hovsepyan "interrupted a staffer and criticized their [sic] input during a staff [planning] meeting" and "argued" with Ms. Vann about a translation assignment. Id. at 1. Mr. Hovsepyan states that "the 'facts' [in the admonishment letter] were based on lies . . . in the height of Plaintiff's complaints to the Agency's officials and to OIG on Ms. Vann's wrongdoings at the Armenian Service." Pl.'s Facts at 7, ¶ 15.

Mr. Hovsepyan received a letter of reprimand from Ms. Vann on February 3, 2006, for "disrespectful behavior" toward her as his supervisor and toward Ms. Kalashyan as his colleague. Def.'s Mot., Ex. 39 [Dkt. # 14-30]. Ms. Vann reprimanded Mr. Hovsepyan for, among other actions, having "berated [her] in a loud voice" in front of staff attending a staff meeting on January 10, 2006, when she asked him about his availability to cover a conference, id. at 1, "belittled [her] ideas," id. at 2, and failed to follow her instructions sent by e-mail on January 23, 2006, to "put together a TV package," not a roundtable interview. Id. at 3. In addition, Ms. Vann reprimanded Mr. Hovsepyan for acting bored at a staff meeting on February 2, 2006, and interrupting Ms. Kalashyan during her presentation of stories on which she was working "by getting up, and stating [that he] had urgent work to finish" and eventually leaving the meeting, which was "not the first time [he] had left a staff meeting when [Ms. Kalashyan] started speaking." Id. Mr. ...


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