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Mohmand v. Broadcasting Board of Governors

United States District Court, District of Columbia

September 30, 2018



          RANDOLPH D. MOSS United States District Judge.

         This matter is before the Court on Defendants' motion to dismiss or, in the alternative, for summary judgment, Dkt. 10. Plaintiff Mohammed Mohmand alleges that his employer, Broadcasting Board of Governors (“the Board”), discriminated against him 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 the Board subjected him to a hostile work environment and retaliated against him for reporting the harassment. Mohmand's claims are mostly duplicative of those he raised in a previous action before this Court, which were dismissed in relevant part for his failure to exhaust administrative remedies. See Achagzai v. Broad. Bd. of Governors (Achagzai I), 170 F.Supp.3d 164 (D.D.C. 2016). The Court concludes that Mohmand has again failed to exhaust his administrative remedies for most of the acts alleged in his complaint. With respect to the only incident Mohmand has properly exhausted- his May 9, 2016 schedule change-the Court holds that his allegations fail to state a claim for relief under any of his alleged theories of discrimination.

         The Court will, accordingly, GRANT Defendants' motion to dismiss or, in the alternative, for summary judgment, Dkt. 10.

         I. BACKGROUND

         A. Factual Background

         Plaintiff Mohammed Mohmand is a 70-year-old native Pashto and Dari speaker who has worked as an international broadcaster for the Pashto Language Service since 1985. Dkt. 1 at 3- 4 (Compl. ¶¶ 6-9). At all times relevant to the complaint, Mohmand's official duties included conducting interviews, reporting on special events, writing and voicing programs, translating texts, and “other duties, as assigned.” Dkt. 10-5 at 1. The Defendants in this action include the Board of Broadcasting Governors (“the Board”), an independent federal agency responsible for all non-military international broadcasting sponsored by the U.S. government, Dkt. 1 at 7 (Compl. ¶ 19), and Jeffrey Shell, the Chairman of the Board, Dkt. 1 at 1. The Board is responsible for Voice of America (“VOA”), which hosts the Pashto Language Service. Id.

         In 2010, VOA's management decided to implement a programming change referred to as the “new format.” Id. at 8 (Compl. ¶ 24). The crux of Mohmand's complaint is that under the “new format, ” younger employees were given favorable treatment while older employees, like Mohmand, were subjected to a laundry list of “hostilities and discriminatory acts” designed to “forc[e]” them “to leave the service.” Id. at 4-5 (Compl. ¶¶ 12-13). Mohmand loosely groups his allegations-which span from 2010 to 2016-into four claims: age discrimination under Title VII (Count I); age discrimination in violation of the ADEA (Count II); unlawful retaliation in violation of the ADEA and Title VII (Count III); and hostile work environment. See Id. at 7-10 (Compl.).

         First, and most prominently, Mohmand alleges that VOA's management committed a discrete act of discrimination against him by instituting a schedule change on May 9, 2016, in which “[he] was assigned production and plum assignments were given to junior staff.” Id. at 8 (Compl. ¶ 27). Mohmand alleges that production was a “position for which he [was] not trained, and a position that [was] not part of his job.” Id. at 8 (Compl. ¶ 13). He further alleges that this “biased schedule[] [was] used by [his supervisor] Mr. Ibrahim [Nassar] as a[n] . . . intentional, deliberate and discriminatory tool to serve his goal of forcing the seniors in the staff to leave the service.” Id.

         Second, Mohmand “re-alleges and incorporate[s] by reference” the above allegations in support of his claim that VOA's management “subjected him to intentional and unlawful ADEA retaliatory discrimination, ” id. at 9 (Compl. ¶ 29-30), and “adversely affected [his] employment opportunities in violation of Title VII, ” id. at 10 (Compl. ¶ 33).

         Third, Mohmand alleges that VOA's management “subjected him to a hostile work environment” when he refused to leave his job. Id. at 4 (Compl. ¶ 12). His complaint lists a host of wrongdoings, including “failing to provide him with the proper equipment to perform his job;” “discussing his mistakes with his colleagues instead of with him;” and “excluding him from meetings.” Id. at 4-5 (Compl. ¶ 13). In addition, Mohmand avers that, “[i]n order to escalate the hostile work environment, ” his supervisor, Mr. Ibrahim Nassar, required him to “produce [a] poetry show” on March 27, 2012-"without having trained [him]”- and then “humiliat[ed] and harass[ed]” him about his production skills.” Id. at 6 (Compl. ¶ 17). Finally, Mohmand alleges that the May 9, 2016 schedule again relegated him to production even though Mr. Ibrahim Nassar “knew or should have known” that it would cause him “pain and suffering.” Id. at 6 (Compl. ¶¶ 17-18).

         Due to the “long term harassment, ” described above, Mohmand alleges that he has suffered “physical and psychological” harm, including difficulty sleeping and anxiety. Id. at 6 (Compl. ¶¶ 16, 18).

         B. Procedural Background

         Mohmand met with an Equal Employment Opportunity (“EEO”) counselor from the Board's Office of Civil Rights on May 18, 2016, and filed a formal complaint that same day. See Dkt. 10-3 at 1. Mohmand's EEO complaint alleges that his “managing editor . . . and upper management” have “harassed [him], retaliated against [him], [and] created a hostile work environment” since “2010 or so, ” resulting in him “suffer[ing] damages, sleep disorders, insomnia, ” and possibly, “Post Traumatic Stress Disorder.” Id. at 2. The EEO complaint, however, mentions only one specific incident: Mohmand alleges that the May 9, 2016 schedule replaced “[his] responsibilities . . . with production”- “something in which [he has] [no] formal training” and is “outside [of his] formal job description.” Id. at 2, 4. On April 6, 2017, Mohmand filed the present action, raising these same allegations. See Dkt. 1. There is no indication, based on the parties' submissions, that the agency rendered a decision before Mohmand filed suit.

         In lieu of filing an answer, Defendants moved to dismiss Mohmand's complaint or, in the alternative, for summary judgment. Dkt. 10. In support of its motion, Defendants attached a statement of undisputed material facts, Dkt. 10-1; Mohmand's formal EEO complaint, Dkt. 10-3; Mohmand's responses to questions during the agency's preliminary investigation, Dkt. 10-4; and Mohmand's official job description, Dkt. 10-5. Mohmand timely filed an opposition, arguing that, “but for his age and national origin[, ] he would not have been re-assigned [to] production, ” Dkt. 12-1 at 5 (emphasis added); and that the May 9, 2016 schedule change was intended to retaliate against him for filing previous grievances, id. at 6. He attached a statement of disputed facts, Dkt. 12-3, but failed to identify any portion of the record that supported his statements, as required by Local Rule 7(h). Finally, Defendants filed a reply to Mohmand's opposition, attaching to it a ...

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