United States District Court, District of Columbia
B. WALTON UNITED STATES DISTRICT JUDGE
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,  the Court concludes, for the reasons set
forth below, that it must deny both motions.
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.
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. 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.
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
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
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.
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.
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
Motion for Leave to File a Sur-Reply
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
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).
Motion for Summary Judgment
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)).
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 ...