Achagzai v. Broad. Bd. of Governors, Civil Action No. 14-768 (RDM)

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtRANDOLPH D. MOSS, United States District Judge
Citation170 F.Supp.3d 164
Parties Taher Achagzai, et al., Plaintiffs, v. Broadcasting Board of Governors, Defendant.
Docket NumberCivil Action No. 14-768 (RDM)
Decision Date18 March 2016

170 F.Supp.3d 164

Taher Achagzai, et al., Plaintiffs,
Broadcasting Board of Governors, Defendant.

Civil Action No. 14-768 (RDM)

United States District Court, District of Columbia.

Signed March 18, 2016

170 F.Supp.3d 168

Shameela Sarah Shah, Law Offices of Shah & Shah, PLLC, Washington, DC, for Plaintiffs.

Jeremy S. Simon, Johnny Hillary Walker, III, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.


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. 30. The amended complaint includes a variety of claims alleging workplace discrimination on the basis of age, in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”), and on the basis of national origin, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”). For the reasons explained below, the Court concludes that four of the plaintiffs—Taher Achagzai, Syed B. Shah, Mohammed Zamen Mohmand, and Zeba Khadem—failed to exhaust their administrative remedies, and defendant's motion is therefore GRANTED as to those four plaintiffs. But the fifth plaintiff, Naseem S. Stanazai, did exhaust his administrative remedies as to some of his claims, and the Court concludes that with respect to some, but not all, of those claims, Stanazai has stated a claim upon which relief may be granted. Defendant's motion for summary judgment is therefore GRANTED IN PART and DENIED IN PART as to Stanazai's claims.


A. Factual Background

Plaintiffs Taher Achagzai, Syed S. Shah, Mohammed Zamen Mohmand, Zeba Khadem, and Naseem S. Stanazai are broadcasters

170 F.Supp.3d 169

at the Pashto Language Service, a division of Voice of America (“VOA”).1 Compl. ¶¶ 5–6.2 All five plaintiffs are naturalized United States citizens of Afghan origin whose native languages are Pashto and Dari. Id. ¶ 3. Their ages range from 62 to 77, and each has worked at VOA for more than 14 years—three have been there for more than 30 years. Id. ¶ 8. According to the complaint, each plaintiff has been highly regarded in their field and received positive annual evaluations and various awards and promotions. Id. ¶ 10.

Defendant Broadcasting Board of Governors (“the Board”) is an independent federal agency that oversees all non-military, international broadcasting sponsored by the federal government, including VOA. Compl. ¶ 11. The complaint alleges that the plaintiffs suffered a laundry list of workplace indignities starting in 2006 while employed by the Board. See, e.g., id. ¶¶ 13-15. The crux of the complaint is that the older, Afghani plaintiffs suffered these harms as VOA attempted to implement a “new format,” a term the complaint uses often but never defines, which appears to be an effort by VOA to modernize its offerings. Id. ¶¶ 13–18; Dkt. 50 at 4. The complaint lists 37 categories of discriminatory conduct that describe allegations of unfair and unannounced workplace scheduling, frequent downgrades in assignments, favoritism shown toward junior staff in all facets of work, a barrage of insults and insulting behavior aimed toward Plaintiffs, and a refusal to assist the senior staff in the transition to “the new format.” Compl. ¶ 14. The complaint alleges that these abuses began in 2006 but grew worse when Mohammed Ibrahim Nasar became the Managing Editor of the Pashto Service at VOA in 2010. Id. ¶ 15. The complaint also alleges that at least some of the plaintiffs voiced their concerns at various times to upper management at VOA and received assurances that conditions would improve. Id. ¶¶ 19-28. Plaintiffs further allege that in actuality, however, Nasar and other supervisors retaliated against them by continuing to change their schedules and removing them from more desirable assignments. Id. ¶¶ 23–25. Plaintiffs allege that, as the situation grew more toxic, supervisors insulted them at staff meetings, encouraged them to retire, and assigned them tasks that were impossible to complete in the amount of time given. Id. ¶¶ 31–32. After Plaintiffs brought their concerns to the Board's human resources department, a supervisor allegedly placed “a gag on seniors' work related e-mails,” although it is not entirely clear what that entailed. Id. ¶ 38. A higher-level supervisor later recognized that the “gag” was improper and against VOA policy and lifted it. Id. Unsatisfied with the response from the human resources department, Plaintiffs sought administrative recourse through Equal Employment Opportunity (“EEO”) counseling with the Board's office of civil rights approximately six months after first bringing their concerns to the human resources department.

B. Procedural Background

Plaintiffs Achagzai, Shah, Mohmand, and Khadem each began the administrative process by contacting an EEO counselor on October 11, 2012. See Dkt. 30-2 at 5 (Mohmand), 37 (Shah), 53 (Achagzai), 75 (Khadem); Dkt. 50 at 3. Plaintiff Stanazai, on the other hand, first sought EEO counseling

170 F.Supp.3d 170

on March 22, 2013. Id. at 101. All five followed up with formal discrimination complaints accompanied by written attachments detailing their personal allegations of discrimination. The first four plaintiffs filed their administrative complaints between December 8 and December 12, 2012, see id. at 14 (Mohmand), 35 (Shah), 58 (Achagzai), 86 (Khadem), while Stanazai filed his on April 24, 2013, see id. at 106. Defendant never issued a final decision on any of Plaintiffs' complaints because Plaintiffs requested a hearing before the Equal Employment Opportunity Commission (“EEOC”) before Defendant had a chance to render any decision. Dkt. 30-2 at 4 (McDay Decl. ¶ 11). The EEOC, in turn, dismissed its own proceeding when Plaintiffs brought this action on May 5, 2014. Id. (McDay Decl. ¶ 12).

The original complaint covered more than 200 pages, including 18 counts and more than 800 numbered paragraphs. See Dkt. 1. The Board moved to dismiss counts 10–18, all of which alleged various common law torts, on the grounds that Plaintiffs had not exhausted their administrative remedies under the Federal Tort Claims Act—the only waiver of sovereign immunity that would allow Plaintiffs to sue the government for tort violations. Dkt. 14. Defendant also moved to strike the complaint for failure to comply with Federal Rules of Civil Procedure 8 and 12(f) because it was too long and repetitive to allow the Board a reasonable opportunity to respond. Id. Plaintiffs, meanwhile, moved to expedite the proceedings, arguing that their advanced age and health concerns necessitated an expedited schedule. Dkt. 17. The Court granted both of Defendant's motions and denied Plaintiffs' motion to expedite. See Dkt. 24; Achagzai v. Broad. Bd. of Governors , 109 F.Supp.3d 67 (D.D.C.2015). The Court dismissed counts 10–18 without prejudice and granted Plaintiffs leave to file an amended complaint that complied with Rules 8 and 12(f) on or before June 29, 2015. Id. at 8.

Plaintiffs met that deadline and filed an amended complaint that dropped the previous counts alleging common-law tort violations and that omitted much, although not all, of the repetition contained in the original complaint. See Dkt. 25. The amended complaint asserts nine counts against the Board: (1) “Pattern or Practice Discrimination—Systemic Disparate Treatment” on the basis of national origin in violation of Title VII, 42 U.S.C. § 2000e, et seq. ; (2) “Pattern or Practice of Discrimination—Systemic Disparate Treatment” discrimination on the basis of age in violation of the ADEA, 29 U.S.C. § 621, et seq. ; (3) disparate impact discrimination on the basis of national origin, in violation of Title VII; (4) disparate impact discrimination on the basis of age, in violation of the ADEA; (5) discrimination on the basis of national origin and age, in violation of both Title VII and the ADA, through a hostile work environment and disparate treatment; (6) discrimination on the basis of national origin and age, in violation of the ADEA and Title VII, through “systemic harassment” in the workplace; (7) “willful discrimination” in violation of Title VII and the ADEA; (8) workplace retaliation, in violation of Title VII; and (9) workplace retaliation in violation of the ADEA. Dkt. 25 at 28–46. The plaintiffs seek compensatory damages of $350,000 each, punitive damages of $750,000, an injunction prohibiting the Board from engaging in further discrimination, and various costs and fees, including attorney's fees. Id. at 47–49.

In lieu of filing an answer, the Board moved to dismiss or, in the alternative, for summary judgment. Dkt. 30. Attached to its motion is a declaration from Shennoa McDay, the Acting Director of the Board's office of civil rights, along with more than 100 pages of documents that Plaintiffs filed

170 F.Supp.3d 171

during the administrative process before filing suit. See Dkt. 30-2. Plaintiffs opposed the Board's motion and attached to their opposition brief declarations from Ghilzai Amaah, the former Editing Manager of the Pashto Service, see Dkt. 33-2, and from each of the five plaintiffs, see Dkt. 33-3. These declarations largely repeat...

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