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Achagzai v. Broadcasting Board of Governors

United States District Court, District of Columbia

September 30, 2018

TAHER ACHAGZAI, Plaintiff,
v.
BROADCASTING BOARD OF GOVERNORS, Defendant.

          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. 11. Plaintiff Taher Achagzai alleges workplace discrimination in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”). He also alleges that his former employer, the Broadcasting Board of Governors (“the Board”), retaliated against him for engaging in activity protected under the ADEA. Achagzai's claims are largely duplicative of those he brought in a previous action before this Court, which were dismissed because he had failed to exhaust his administrative remedies. See Achagzai v. Broad. Bd. of Governors, 170 F.Supp.3d 164 (D.D.C. 2016) (“Achagzai I”). Once again, Achagzai has failed to timely exhaust most of the claims that he asserts in this case. To the extent Achagzai has exhausted his administrative remedies, moreover, the Court concludes that Achagzai has failed to state a claim under Title VII. With respect to Achagzai's remaining, exhausted claims, the Court concludes that he has failed to allege facts sufficient to state a hostile work environment claim and has failed to allege an “adverse employment action” sufficient to sustain his discrimination claim, but concludes that he has alleged a “materially adverse” action sufficient to support his retaliation claim. The Court will, accordingly, GRANT the Board's motion in part, and will DENY it in part.

         I. BACKGROUND

         A. Factual Background

         The following facts are undisputed for purposes of the pending motion. From 1988 to 2016, Plaintiff Taher Achagzai worked at the Pashto Language Service, a division of Voice of America (“VOA”). Dkt. 1 at 3 (Compl. ¶ 5). Most recently, he held the position of international broadcaster. Id. He is a naturalized United States citizen of Afghan national origin, id., and is now seventy-nine years old, Dkt. 11-3 at 3. Defendant, the Broadcasting Board of Governors, is an independent federal agency that oversees all non-military, international broadcasting sponsored by the federal government, including the VOA. Dkt. 1 at 3 (Compl. ¶ 6). Achagzai alleges that the Board “constructively discharged [him] and subjected [him] to harassment based on his age, ” and that he suffered “reprisal[s] for having [previously] complained to management about the harassment and discrimination by his man[a]gers.” Id. (Compl. ¶ 4). As was the case in Achagzai I, “[t]he crux of the complaint is that the older, Afghan[]” employees of VOA, Achagzai included, “suffered a laundry list of workplace indignities . . . as [the] VOA attempted to . . . modernize its offerings.” 170 F.Supp.3d at 169.

         Achagzai asserts four claims: discrimination under Title VII (Count 1); age discrimination in violation of the ADEA (Count 2); constructive discharge in violation of Title VII (Count 3); and unlawful retaliation “against Plaintiff because of [his] protected ADEA activities” (Count 4). Dkt. 1 at 4-7 (Compl.) In support of these claims, Achagzai raises a number of allegations. First, he alleges that the Board's management discriminated against him when, in 2015, it changed his “schedule of over 10 years” and required that he arrive at work at “7 or 7:30 or 8” a.m., knowing that he “traveled on public transport[ation]” and would therefore need to leave for work at 5:00 a.m. “in below zero-degree weather during the months of December and January.” Id. at 4 (Compl. ¶ 9). Working this early shift constituted an “egregious hardship” on Achagzai and, in fact, “he nearly died of a blood clot and pneumonia during the winter of 2015-2016.” Id. (Compl. ¶ 8). This discrimination continued, according to Achagzai, when VOA management issued a new schedule in May 2016, which continued to require that he cover the “early morning” shift, even though “several other staff members, who [were] younger, ” were better suited for that shift. Id. at 4-5 (Compl. ¶ 9). To make matters worse, Achagzai continues, under “the new schedules, ” Achagzai was “forced . . . to work” with other employees who lacked “the necessary skills, language training and background, ” thus requiring the he “do the work of [three] other employees.” Id. at 6 (Compl. ¶ 16). “If he failed to do the work of at least three . . . others, ” Achagzai maintains, “he was harassed.” Id. According to Achagzai, as a result of the discriminatory schedule, he “submitted a voluntary-separation application [on April 18, 2016] pursuant to an agency-wide buyout option that had been announced on March 18, 2016, ” in which he “agreed to retire on or before June 30, 2016, in exchange for a severance payment.” Dkt. 11-1 at 10. He claims that his retirement was, in fact, involuntary, and that the scheduling changes enacted in 2015 and 2016 “forced [him] to retire” prematurely, “before his health was irreparably harmed.” Dkt. 1 at 6-7 (Compl. ¶¶ 16, 18).

         At least in conclusory terms, Achagzai also mentions a variety of other allegedly discriminatory actions taken by the Board over the years. He alleges, for example, that he performed the duties of “an Editor, but was never given the promotion or paid for the work that he performed.” Id. at 5 (Compl. ¶ 10). He alleges that, despite having “only received ‘high level' performance ratings, ” he discovered “[s]ometime in 2010 . . . that younger employees were promot[ed] to GS[-]12 [while] he was still GS[-]11.” Id. (Compl. ¶ 10). He alleges that he was “subject[ed] . . . to conditions and terms of employment that were not enforced on younger employees” and was “treated in a manner that was different from the younger employee[s].” Id. (Compl. ¶ 13). He alleges that “[y]ounger employees were given shows and on air interviews and assignments that were not available to the senior staff and in particular to Mr. Achagzai” and, most notably, that “[h]is poetry show was taken from him and given to other younger and newer staff while his voice was not part of any interviews or shows or features, because of his age.” Id. at 5-6 (Compl. ¶ 13). He alleges that this campaign of “harass[ment] and target[ing] the senior staff” was part of the transition, begun in 2010, to “the new format, ” a change which Achagzai suggests was really part of a plan to “replace the senior staff” with “younger employees.” Id. at 6 (Compl. ¶¶ 13-15). And, he alleges that the actions he describes cumulatively created a hostile working environment. Id. at 8-9 (Compl. ¶¶ 24-25); Dkt. 11-3 at 3.

         Finally, Achagzai alleges that all of the purportedly discriminatory actions described above were also in retaliation for his prior engagement in activity protected by the ADEA. Id. at 7 (Compl. ¶ 20). He posits that these actions were part of a “calculated and purposeful campaign of unlawful retaliation, ” id. at 7-8 (Compl. ¶ 21), and contributed to the creation of “an intimidating, hostile or offensive working environment, ” id. at 8-9 (Compl. ¶¶ 24-25).

         B. Procedural Background

         Achagzai submitted his voluntary-separation application on April 18, 2016. Dkt. 11-1 at 10. On May 13, 2016, VOA's Director approved the buyout. Id. Achagzai then sought Equal Employment Opportunity (“EEO”) counseling from the Board's internal Office of Civil Rights on May 18, 2016. Id. at 11. He filed a formal complaint of discrimination on May 22, 2016, before filing suit in this Court on April 6, 2017. Id. No administrative decisions were rendered prior to the commencement of this action.

         In lieu of filing an answer, the Board moved to dismiss or, in the alternative, for summary judgment. Dkt. 11. Attached to its motion are Achagzai's formal complaint of discrimination, Dkt. 11-3, his responses to questions raised by the EEO office when investigating his complaint, Dkt. 11-4, his voluntary separation incentive payment application, Dkt. 11-5, and a memorandum distributed by the Board regarding the terms of the voluntary separation application process, Dkt. 11-6. Achagzai's eight-page opposition repeats the same vague claims made in his complaint. Dkt. 13-1. He attaches an excerpt from a deposition of one of his former supervisors taken in his previous case, Dkt. 13-2, and his own, fifteen-line affidavit, which asserts that he retired because he “was targeted based on [his] age.” Dkt. 13-3 at 1. He has not submitted the “concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated” required by Local Civil Rule 7(h)(1), nor has he disputed the authenticity or veracity of the records from the administrative complaint process produced by the government.

         II. LEGAL STANDARD

         The Board moves under Rule 12(b)(6) to dismiss for failure to state a claim upon which relief may be granted. To prevail on such a motion, a defendant must demonstrate that the facts alleged in the complaint, accepted as true, 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). When a defendant moves to dismiss for failure to state a claim on the ground that the plaintiff has failed to exhaust her administrative remedies, the Court may consider the plaintiff's official EEO complaint and any attachments (such as the answers to questions provided in this case) without converting the motion to one for summary judgment. See Coleman v. Duke, 867 F.3d 204, 210 & n.4 (D.C. Cir. 2017).

         In any event, the Board also moves, in the alternative, for summary judgement under Rule 56. The Court 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, the opposing party must come forward with ...


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