United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS, United States District Judge
This matter is before the Court on Defendant’s motion to dismiss or, in the alternative, for summary judgment. Dkt. 30. The amended complaint includes a variety of claims alleging workplace discrimination on the basis of age, in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”), and on the basis of national origin, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”). For the reasons explained below, the Court concludes that four of the plaintiffs-Taher Achagzai, Syed B. Shah, Mohammed Zamen Mohmand, and Zeba Khadem-failed to exhaust their administrative remedies, and defendant’s motion is therefore GRANTED as to those four plaintiffs. But the fifth plaintiff, Naseem S. Stanazai, did exhaust his administrative remedies as to some of his claims, and the Court concludes that with respect to some, but not all, of those claims, Stanazai has stated a claim upon which relief may be granted. Defendant’s motion for summary judgment is therefore GRANTED IN PART and DENIED IN PART as to Stanazai’s claims.
A. Factual Background
Plaintiffs Taher Achagzai, Syed S. Shah, Mohammed Zamen Mohmand, Zeba Khadem, and Naseem S. Stanazai are broadcasters at the Pashto Language Service, a division of Voice of America (“VOA”). Compl. ¶¶ 5–6. All five plaintiffs are naturalized United States citizens of Afghan origin whose native languages are Pashto and Dari. Id. ¶ 3. Their ages range from 62 to 77, and each has worked at VOA for more than 14 years-three have been there for more than 30 years. Id. ¶ 8. According to the complaint, each plaintiff has been highly regarded in their field and received positive annual evaluations and various awards and promotions. Id. ¶ 10.
Defendant Broadcasting Board of Governors (“the Board”) is an independent federal agency that oversees all non-military, international broadcasting sponsored by the federal government, including VOA. Compl. ¶ 11. The complaint alleges that the plaintiffs suffered a laundry list of workplace indignities starting in 2006 while employed by the Board. See, e.g., id. ¶¶ 13-15. The crux of the complaint is that the older, Afghani plaintiffs suffered these harms as VOA attempted to implement a “new format, ” a term the complaint uses often but never defines, which appears to be an effort by VOA to modernize its offerings. Id. ¶¶ 13–18; Dkt. 50 at 4. The complaint lists 37 categories of discriminatory conduct that describe allegations of unfair and unannounced workplace scheduling, frequent downgrades in assignments, favoritism shown toward junior staff in all facets of work, a barrage of insults and insulting behavior aimed toward Plaintiffs, and a refusal to assist the senior staff in the transition to “the new format.” Compl. ¶ 14. The complaint alleges that these abuses began in 2006 but grew worse when Mohammed Ibrahim Nasar became the Managing Editor of the Pashto Service at VOA in 2010. Id. ¶ 15. The complaint also alleges that at least some of the plaintiffs voiced their concerns at various times to upper management at VOA and received assurances that conditions would improve. Id. ¶¶ 19-28. Plaintiffs further allege that in actuality, however, Nasar and other supervisors retaliated against them by continuing to change their schedules and removing them from more desirable assignments. Id. ¶¶ 23–25. Plaintiffs allege that, as the situation grew more toxic, supervisors insulted them at staff meetings, encouraged them to retire, and assigned them tasks that were impossible to complete in the amount of time given. Id. ¶¶ 31–32. After Plaintiffs brought their concerns to the Board’s human resources department, a supervisor allegedly placed “a gag on seniors’ work related e-mails, ” although it is not entirely clear what that entailed. Id. ¶ 38. A higher-level supervisor later recognized that the “gag” was improper and against VOA policy and lifted it. Id. Unsatisfied with the response from the human resources department, Plaintiffs sought administrative recourse through Equal Employment Opportunity (“EEO”) counseling with the Board’s office of civil rights approximately six months after first bringing their concerns to the human resources department.
B. Procedural Background
Plaintiffs Achagzai, Shah, Mohmand, and Khadem each began the administrative process by contacting an EEO counselor on October 11, 2012. See Dkt. 30-2 at 5 (Mohmand), 37 (Shah), 53 (Achagzai), 75 (Khadem); Dkt. 50 at 3. Plaintiff Stanazai, on the other hand, first sought EEO counseling on March 22, 2013. Id. at 101. All five followed up with formal discrimination complaints accompanied by written attachments detailing their personal allegations of discrimination. The first four plaintiffs filed their administrative complaints between December 8 and December 12, 2012, see Id. at 14 (Mohmand), 35 (Shah), 58 (Achagzai), 86 (Khadem), while Stanazai filed his on April 24, 2013, see Id. at 106. Defendant never issued a final decision on any of Plaintiffs’ complaints because Plaintiffs requested a hearing before the Equal Employment Opportunity Commission (“EEOC”) before Defendant had a chance to render any decision. Dkt. 30-2 at 4 (McDay Decl. ¶ 11). The EEOC, in turn, dismissed its own proceeding when Plaintiffs brought this action on May 5, 2014. Id. (McDay Decl. ¶ 12).
The original complaint covered more than 200 pages, including 18 counts and more than 800 numbered paragraphs. See Dkt. 1. The Board moved to dismiss counts 10–18, all of which alleged various common law torts, on the grounds that Plaintiffs had not exhausted their administrative remedies under the Federal Tort Claims Act-the only waiver of sovereign immunity that would allow Plaintiffs to sue the government for tort violations. Dkt. 14. Defendant also moved to strike the complaint for failure to comply with Federal Rules of Civil Procedure 8 and 12(f) because it was too long and repetitive to allow the Board a reasonable opportunity to respond. Id. Plaintiffs, meanwhile, moved to expedite the proceedings, arguing that their advanced age and health concerns necessitated an expedited schedule. Dkt. 17. The Court granted both of Defendant’s motions and denied Plaintiffs’ motion to expedite. See Dkt. 24; Achagzai v. Broad. Bd. of Governors, 109 F.Supp. 3d 67 (D.D.C. 2015). The Court dismissed counts 10–18 without prejudice and granted Plaintiffs leave to file an amended complaint that complied with Rules 8 and 12(f) on or before June 29, 2015. Id. at 8.
Plaintiffs met that deadline and filed an amended complaint that dropped the previous counts alleging common-law tort violations and that omitted much, although not all, of the repetition contained in the original complaint. See Dkt. 25. The amended complaint asserts nine counts against the Board: (1) “Pattern or Practice Discrimination–Systemic Disparate Treatment” on the basis of national origin in violation of Title VII, 42 U.S.C. § 2000e, et seq.; (2) “Pattern or Practice of Discrimination–Systemic Disparate Treatment” discrimination on the basis of age in violation of the ADEA, 29 U.S.C. § 621, et seq.; (3) disparate impact discrimination on the basis of national origin, in violation of Title VII; (4) disparate impact discrimination on the basis of age, in violation of the ADEA; (5) discrimination on the basis of national origin and age, in violation of both Title VII and the ADA, through a hostile work environment and disparate treatment; (6) discrimination on the basis of national origin and age, in violation of the ADEA and Title VII, through “systemic harassment” in the workplace; (7) “willful discrimination” in violation of Title VII and the ADEA; (8) workplace retaliation, in violation of Title VII; and (9) workplace retaliation in violation of the ADEA. Dkt. 25 at 28–46. The plaintiffs seek compensatory damages of $350, 000 each, punitive damages of $750, 000, an injunction prohibiting the Board from engaging in further discrimination, and various costs and fees, including attorney’s fees. Id. at 47–49.
In lieu of filing an answer, the Board moved to dismiss or, in the alternative, for summary judgment. Dkt. 30. Attached to its motion is a declaration from Shennoa McDay, the Acting Director of the Board’s office of civil rights, along with more than 100 pages of documents that Plaintiffs filed during the administrative process before filing suit. See Dkt. 30-2. Plaintiffs opposed the Board’s motion and attached to their opposition brief declarations from Ghilzai Amanullah, the former Editing Manager of the Pashto Service, see Dkt. 33-2, and from each of the five plaintiffs, see Dkt. 33-3. These declarations largely repeat Plaintiffs’ administrative complaints and do not dispute the authenticity or veracity of any of the attachments to the McDay declaration; rather, they seem to incorporate those records by reference. See Id. at 4, 7, 12, 18, 23.
Just days after the Board’s motion to dismiss was fully briefed, two of the plaintiffs- Khadem and Mohmand-filed a motion for a preliminary injunction, asking the Court to halt further scheduling changes at VOA. See Dkt. 41. After that motion was fully briefed, the Court held oral argument on all of the pending motions. At oral argument, the Court informed the parties that it would deny the motion for a preliminary injunction, and it issued a memorandum opinion and order shortly thereafter, explaining that Khadem and Mohmand had not satisfied any of the four factors necessary to obtain preliminary relief. See Dkt. 47; Achagzai v. Broad. Bd. of Governors, No. 14-cv-768, 2016 WL 471274 (Feb. 8, 2016). At the conclusion of oral argument, the Court explained that, as the record currently stood, it appeared that the first four plaintiffs (all but Stanazai) had failed to exhaust their administrative remedies for any of the claims alleged in the complaint but also explained that it was troubled by some vagueness in the record. For that reason, the Court provided Plaintiffs with two weeks to file a supplemental memorandum “identif[ying] for each of the five plaintiffs discrete acts of discrimination that occurred within 45 days of when they first sought counseling from an EEO counselor.” Feb. 5, 2016, Minute Order. The Court further instructed that the supplemental filing “should be supported by citations to the record before the Court or supported by other competent evidence” and “should also demonstrate that the Plaintiffs included the cited discriminatory acts as part of their administrative complaint, thereby exhausting their remedies.” Id. Plaintiffs filed their supplemental memorandum on February 18, 2016, see Dkt. 49, and filed a second version correcting small errors the next day, see Dkt. 50. The Board filed its response on March 1, 2016. See Dkt. 51.
C. Statutory and Regulatory Background
As Plaintiffs recognize, see Dkt. 33-1 at 2, the Board is an independent federal agency, and Plaintiffs are therefore federal employees. Both Title VII and the ADEA-the two statutes on which Plaintiffs’ remaining counts rely-require federal employees to exhaust administrative remedies before filing suit. See 42 U.S.C. § 2000e–16(c) (Title VII); 29 U.S.C. § 633a(b)-(d) (ADEA); see also Washington v. Washington Metro. Area Transit Auth., 160 F.3d 750, 752 (D.C. Cir. 1998) (noting that a plaintiff must exhaust administrative remedies “[b]efore suing under either the ADEA or Title VII”). The rules relating to Title VII and ADEA claims, however, are not identical.
To exhaust administrative remedies under Title VII, a federal employee must first “initiate contact” with an EEO counselor within 45 days of the allegedly discriminatory conduct. 29 C.F.R. § 1614.105(a)(1); see also In re James, 444 F.3d 643, 644 (D.C. Cir. 2006). At the initial counseling session, the EEO counselor “must advise individuals in writing of their rights and responsibilities, ” including their right to an administrative hearing and their right to file an administrative complaint. 29 C.F.R. § 1614.105(b). If the dispute is not resolved within 30 days, the counselor is required to provide the employee with “a notice explaining the administrative complaint procedure.” In re James, 444 F.3d at 644; see also 29 C.F.R. §§ 1614.105(d); 1614.106. The employee then has 15 days to file an administrative complaint with his or her agency. 29 C.F.R. § 1614.106; In re James, 444 F.3d at 644. “After the agency has the opportunity to investigate the matter, the complainant may demand an immediate final decision from the agency or a hearing before an EEOC administrative law judge.” Koch v. Walter, 935 F.Supp.2d 143, 149 (D.D.C. 2013); see also 29 C.F.R. §§ 1614.106(e)(2), 1614.108(f)-(h). The employee may file suit in federal district court within 90 days of receipt of the agency’s or the EEOC’s final determination or after 180 days have elapsed since the filing of a complaint with the agency or the EEOC, if neither has taken a final action. See 29 C.F.R. § 1614.407.
Under the ADEA, a federal employee may elect to follow these same procedures or to take an alternative path to federal court. Unlike in Title VII cases, the ADEA permits “the employee [to] bring a claim directly to federal court so long as, within 180 days of the allegedly discriminatory act, [the employee] provides the EEOC with notice of [her] intent to sue at least 30 days before commencing suit.” Rann v. Chao, 346 F.3d 192, 195 (D.C. Cir. 2003). An employee who elects this path need not file an administrative complaint. Id.; see also Kennedy v. Whitehurst, 690 F.2d 951, 964 (D.C. Cir. 1982). Here, however, Plaintiffs conceded at oral argument that they did not follow this alternative route, and there is no evidence in the record that they provided the EEOC with the required notice. See Dkt. 46 at 42–43. They are thus left with the same administrative exhaustion framework for their ADEA claims as the one that guides their Title VII claims. See generally 29 U.S.C. § 633a.
Exhausting administrative remedies is a prerequisite to filing suit under either the ADEA or Title VII. See Rafi v. Sebelius, 377 F. App’x 24, 25 (D.C. Cir. 2010) (unpublished) (affirming a district court’s dismissal of Title VII and ADEA claims because the plaintiff had not initiated EEO contact within 45 days of the allegedly discriminatory hiring practice); Fortune v. Holder, 767 F.Supp.2d 116, 122–23 (D.D.C. 2011) (dismissing plaintiff’s claims under Title VII and the Rehabilitation Act because he did not initiate EEO contact within 45 days of allegedly discriminatory acts); Drewrey v. Clinton, 763 F.Supp.2d 54, 62 (D.D.C. 2011) (granting the government summary judgment as to plaintiff’s Title VII claims based on incidents that occurred more than 45 days before plaintiff initiated EEO counseling); Dorns v. Geithner, 692 F.Supp.2d 119, 130–31 (D.D.C. 2010) (same). Where an employee alleges discrete claims of discrimination, such as a failure to promote or a demotion, moreover, the employee must exhaust administrative remedies for each discrete claim, and “[e]ach discriminatory act starts a new clock for filing charges alleging that act.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). In contrast, where an employee alleges that he or she has been subject to a hostile work environment, the employee may proceed so long as “an act contributing to [his or her] claim occurs within the filing period.” Id. at 117. If the employee can make that threshold showing, “the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.” Id. The entire hostile work environment claim is untimely, however, if the employee cannot identify at least one act that contributed to the hostile work environment and occurred within 45 days of when she initiated EEO contact.
The Supreme Court has recognized certain exceptions to the Title VII and ADEA exhaustion requirements. Relevant here, courts may overlook a failure to comply with the EEOC’s administrative deadlines under the doctrine of equitable tolling. See Morgan, 536 U.S. at 113; see also Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982) (“We hold that filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.”).
II. STANDARD OF REVIEW
A motion to dismiss under Rule 12(b)(1) challenges the Court’s jurisdiction to consider the claim. A court may dismiss the complaint if it fails facially to plead facts sufficient to establish that the Court has jurisdiction, but “where necessary, the court may [also] consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992). Thus, the Court may look beyond the allegations of the complaint to the extent necessary to satisfy itself that it has jurisdiction to hear the suit. Whether a rule 12(b)(1) motion to dismiss for lack of jurisdiction is facial or factual, the plaintiff bears the burden of establishing that the court has subject-matter jurisdiction. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
A rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted, in contrast, is subject to a different set of procedures. A defendant may prevail on a 12(b)(6) motion only by demonstrating that the facts alleged in the complaint, and accepted as true for purposes of resolving the motion, do not warrant relief. See Harris v. Ladner, 127 F.3d 1121, 1123 (D.C. Cir. 1997). If the Court concludes that the movant’s arguments go beyond the pleadings and require consideration of facts not alleged in the complaint, the Court may either deny the motion on that ground or may, where appropriate and with reasonable notice to the parties, convert the motion to dismiss to one for summary judgment under Rule 56. See Fed. R. Civ. P. 12(d).
A motion for summary judgement under Rule 56 implicates yet a third set of procedures. Here, the Court may consider the full record before it, but it may not resolve any bona fide factual disputes. The Court, accordingly, may grant summary judgment only when the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Where, as here, the defendant has moved for summary judgment, it “bears the initial responsibility” of “identifying those portions” of the record that “demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has carried that burden, however, the opposing party ...