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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