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Alavi v. Weinstein

United States District Court, District of Columbia

October 4, 2018

KENNETH WEINSTEIN, [1] in his official capacity as Chairman of the Broadcasting Board of Governors, Defendant.



         The plaintiff, Banafshe Alavi, brings this civil action against the defendant, Kenneth Weinstein, in his official capacity as Chairman of the Broadcasting Board of Governors, asserting claims of gender discrimination and retaliation in violation of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e through 2000e-17 (2012) (“Title VII”). See Complaint (“Compl.”) ¶¶ 34, 37. Specifically, the plaintiff alleges that the defendant unlawfully discriminated against her based on her gender and retaliated against her for engaging in prior protected activity under Title VII when her employment was terminated on April 6, 2007. Id. Currently before the Court are the Defendant's Motion for Summary Judgment (“Def.'s Summ. J. Mot.”) and the Plaintiff's Motion for Leave to File a Sur[-R]eply in Response to Defendant's Reply (“Pl.'s Sur-Reply Mot.”). Upon careful consideration of the parties' submissions, [2] the Court concludes, for the reasons set forth below, that it must deny both motions.

         I. BACKGROUND

         The female plaintiff began working as a contractor with the defendant in 1996. Pl.'s Facts ¶ 1. On April 16, 2006, she was hired by the defendant as a television production specialist in its West and South Asia Division of Voice of America's Persian Service. Def.'s Facts ¶ 2; Pl.'s Resp. ¶ 2. Given her proficiency in Farsi, the plaintiff's duties included “organiz[ing] the various feeds and videos to coincide with TV dialogue” for “Farsi[-]language shows.” Pl.'s Facts ¶ 2. The plaintiff's employment was subject to a one-year probationary period. Def.'s Facts ¶ 3; Pl.'s Resp. ¶ 3.

         Dominic Bellone, the male executive producer of Voice of America, served as the plaintiff's immediate supervisor from May 2006 through April 2007. Pl.'s Facts ¶ 3; see also Pl.'s Summ. J. Opp'n, Exhibit (“Ex.”) 3 (Affidavit of Dominic Bellone (Aug. 24, 2007) (“Bellone Aff.”)) at 38.[3] The plaintiff served as a line producer of “Roundtable with You, ” a political call-in show in Farsi, while Bellone served as its executive producer. Pl.'s Facts ¶ 4. The plaintiff alleges that, beginning in late 2006 and through February 2007, while she was under Bellone's supervision, “Bellone harassed [her] constantly in the control room[, ] yelling ‘almost every time that [she] was in line producing.'” Id. ¶ 5 (third alteration in original). According to the plaintiff, Bellone also “challenged her every action, even her restroom visits.” Id.

         “In the second week of February 2007[, the p]laintiff organized a meeting for staff to express to senior managers complaints about Bellone's behavior.” Pl.'s Facts ¶ 14; see also Pl.'s Summ. J. Opp'n, Ex. 3 (Affidavit of Benjamin Jonas-Keeling (Aug. 24, 2007) (“Jonas Aff.”)) at 42; id., Ex. 3 (Affidavit of Kambiz Mahmoudi (Sept. 7, 2007) (“Mahmoudi Aff.”)) at 47. During the meeting, the plaintiff was “‘quite outspoken' as to [the] mistreatment she suffered from Mr. Bellone, ” “complain[ing] that Bellone treated less experienced males better than her, ” and that “Bellone was ‘loud and disruptive.'” Pl.'s Facts ¶ 15. Dr. Kambiz Mahmoudi, the executive director of the Persian Service, id. ¶ 12, and Benjamin Jonas, then known as Benjamin Jonas-Keeling, Def.'s Facts ¶ 8, the staff director of the Persian Service, id. ¶ 11, attended the meeting on behalf of management, Pl.'s Facts ¶ 15; Pl.'s Summ. J. Opp'n, Ex. 3 (Jonas Aff.) at 42; id., Ex. 3 (Mahmoudi Aff.) at 47.

         Approximately two weeks later, on or about March 1, 2007, the plaintiff met with Bellone and Jonas to discuss the plaintiff's alleged “workplace problems, including absenteeism, tardiness, inappropriate behavior towards a supervisor, and [her] sign-in/out times.” Pl.'s Summ. J. Opp'n, Ex. 3 (Letter from Sheila Gandji to Banafshe Alavi (Apr. 6, 2007) (“Termination Letter”)) at 34; see also Pl.'s Facts ¶¶ 23-24; Def.'s Facts ¶ 22. On March 16, 2007, Jonas “requested entry and exit data[4] relating to [the plaintiff] from the building security office, ” Pl.'s Facts ¶ 27; see also Def.'s Facts ¶ 19, compared this data to the plaintiff's physical sign-in sheets for the Persian Service, Pl.'s Facts ¶ 27; Def.'s Facts ¶ 11, and allegedly “uncovered false sign-in times, ” Pl.'s Summ. J. Opp'n, Ex. 3 (Termination Letter) at 34; see also Def.'s Facts ¶ 11. Thereafter, Bellone consulted with Mahmoudi, Jonas, and Donna Grace, the human resources director, regarding possibly terminating the plaintiff's employment. Pl.'s Summ. Opp'n, Ex. 5 (Agency's Responses to Complainant's First Set of Interrogatories and Requests for Production (“Def.'s Interrog. Resp.”)) at 81; see also Pl.'s Facts ¶ 29. The plaintiff was subsequently terminated on April 6, 2007, for “falsification of time and attendance records.” Pl.'s Summ. J. Opp'n, Ex. 3 (Termination Letter) at 34; see also Def.'s Facts ¶ 24.

         The plaintiff filed a complaint with the Equal Employment Opportunity Commission (the “EEOC”) on June 18, 2007, “alleging that the [defendant] discriminated against her on the bases of national origin (Iranian), sex (female), and reprisal for prior protected EEO [ ] activity.” Pl.'s Summ. J. Opp'n, Ex. 2 (EEOC Appeal Decision (Sept. 11, 2015) (“EEOC Decision”)) at 21. Following the issuance of an opinion by one of its Administrative Judges, the EEOC found that there was “substantial evidence in the record to support the [Administrative Judge's] findings of unlawful employment discrimination based on sex and reprisal with respect to the harassment allegation, ” id., Ex. 2 (EEOC Decision) at 24, but concluded that the plaintiff “did not demonstrate that the [Administrative Judge] erred in finding that she did not establish [that] her termination was discriminatory, ” id., Ex. 2 (EEOC Decision) at 25.

         On December 10, 2015, the plaintiff initiated this civil action, asserting that “[t]he [defendant's] decision to terminate [her] employment on or about April 6, 2007[, ] was based on intentional sex discrimination” and “intentional retaliation and/or reprisal for her prior protected EEO activity in violation of Title VII.” Compl. ¶¶ 34, 37. The defendant requests summary judgment on the ground that the “[p]laintiff cannot present sufficient evidence that would permit a reasonable fact finder to conclude that she was discriminated against because of her gender or that she was retaliated against because of prior EEO activity.” Def.'s Summ. J. Mem. at 1. The plaintiff opposes the defendant's motion, see generally Pl.'s Summ. J. Opp'n, and has filed a motion for leave to file a sur-reply to respond to the defendant's summary judgment reply, see generally Pl.'s Sur-Reply Mot. This opinion resolves these motions.


         A. Motion for Leave to File a Sur-Reply

          A court will grant a motion for leave to file a sur-reply if “the party making the motion would be unable to contest matters presented to the court for the first time in the opposing party's reply.” Lewis v. Rumsfeld, 154 F.Supp.2d 56, 61 (D.D.C. 2001); see also Ben-Kotel v. Howard Univ., 319 F.3d 532, 536 (D.C. Cir. 2003). Although “sur[-]replies are generally disfavored, ” Kifafi v. Hilton Hotels Ret. Plan, 736 F.Supp.2d 64, 69 (D.D.C. 2010), aff'd 701 F.3d 718 (D.C. Cir. 2012), “[t]he decision to grant or deny leave to file a sur-reply is committed to the sound discretion of the Court, ” Lu v. Lezell, 45 F.Supp.3d 86, 91 (D.D.C. 2014). “In exercising its discretion, the [C]ourt should consider whether the movant's reply in fact raises arguments or issues for the first time, whether the nonmovant's proposed sur[-]reply would be helpful to the resolution of the pending motion, and whether the movant would be unduly prejudiced were leave to be granted.” Banner Health v. Sebelius, 905 F.Supp.2d 174, 187 (D.D.C. 2012).

         If new arguments appear for the first time in a movant's reply, granting leave to file a sur-reply is appropriate. See Flynn v. Veazey Constr. Corp., 310 F.Supp.2d 186, 189 (D.D.C. 2004). But such arguments “must be truly new.” United States ex rel. Pogue v. Diabetes Treatment Ctrs. of Am., Inc., 238 F.Supp.2d 270, 277 (D.D.C. 2002). The alleged mischaracterization of a moving party's position by an opponent in a reply is insufficient to justify granting a request to file a sur-reply. See Lewis, 154 F.Supp.2d at 61. “Simply put, a sur[-]reply is not a vehicle for rehashing arguments that have already been raised and briefed by the parties. Were that not true, briefing would become an endless pursuit.” Crummey v. Soc. Sec. Admin., 794 F.Supp.2d 46, 63 (D.D.C. 2011), aff'd No. 11-5231, 2012 WL 556317 (D.C. Cir. Feb. 6, 2012).

         B. Motion for Summary Judgment

         Courts will grant a motion for summary judgment “if the movant 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). “A fact is material if it ‘might affect the outcome of the suit under the governing law,' and a dispute about a material fact is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'” Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

         In considering a motion for summary judgment, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in h[er] favor.” Anderson, 477 U.S. at 255. “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment . . . .” Id. The movant has the burden of demonstrating the absence of a genuine issue of material fact and that the non-moving party “fail[ed] to make a showing sufficient to establish the existence of ...

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