Achagzai v. Broad. Bd. of Governors
| Decision Date | 14 September 2020 |
| Docket Number | Civil Action No. 17-612 (RDM) |
| Parties | TAHER M. ACHAGZAI, Plaintiff, v. BROADCASTING BOARD OF GOVERNORS, Defendant. |
| Court | U.S. District Court — District of Columbia |
This matter is before the Court on Defendant's motion for summary judgment. Dkt. 25. Plaintiff Taher Achagzai brought this action against the Broadcasting Board of Governors ("Board")—since renamed the U.S. Agency for Global Media, Dkt. 25-1 at 6—alleging workplace discrimination in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), and retaliation for engaging in protected activity in violation of the ADEA, Dkt. 1 at 3-9 (Compl. ¶¶ 7-26). Earlier in this litigation, the Board moved to dismiss or, in the alternative, for summary judgment, arguing that Plaintiff's claims were either not exhausted or that he had failed to state a claim. Dkt. 11-1. In response, the Court dismissed all but one of Plaintiff's claims. Dkt. 16.
The Board now moves for summary judgment on the remaining claim, which alleges that it retaliated against Plaintiff for engaging in protected Equal Employment Opportunity ("EEO") activity by assigning him to serve as the morning copy editor in May 2016. Plaintiff's claim fails, according to the Board, because (1) he failed to timely exhaust his administrative remedies; (2) the undisputed evidence shows that the May 2016 assignment was not a materially adverse action; and (3) the undisputed evidence shows that the Board assigned him to serve as the morning copy editor for legitimate, nonretaliatory reasons.
As explained below, the Court agrees that the Board is entitled to summary judgment for a combination of these reasons: Plaintiff was first assigned to serve as the morning copy editor in August 2015 (or the fall of 2015) but did not seek EEO counseling until May 18, 2016. Thus, to the extent he alleges that the Board retaliated against him when it initially moved him to the morning shift, he failed to initiate the EEO process within 45 days with respect to those allegations. Plaintiff did, however, timely exhaust his claim that his reassignment to the morning shift in May 2016 was retaliatory. But, as to that claim, the undisputed evidence shows that Plaintiff's only objection was that he had to arrive at work by 7:30 or 8:00 a.m. and did not like working the morning shift during the months of December, January, and February because he had to wait for the bus very early in the morning, when the temperatures were very cold. Dkt. 27-3 at 10 (Pl.'s Resp. to SUMF ¶¶ 9-10). Significantly, Plaintiff had no difficulty arriving at work for the morning shift during the month of May, when the weather was warmer. Id. at 11 (Pl.'s Resp. to SUMF ¶ 12). Under these circumstances, no reasonable jury could find that his reassignment in May constituted an adverse action or that the Board's real reason for making the reassignment was to retaliate against Plaintiff for engaging in protected EEO activity.
The Court will, accordingly, GRANT the Board's motion for summary judgment.
For purposes of resolving the pending motion for summary judgment, the Court relies on the undisputed facts and, to the extent the facts are disputed, accepts Plaintiff's version of the relevant events. See Robinson v. Pezzat, 818 F.3d 1, 8 (D.C. Cir. 2016).
Plaintiff Taher M. Achagzai is over eighty years old and had worked at Voice of America ("VOA") in the Afghan Service, a Pashto-language radio service, for nearly thirty years prior to the termination of his employment in 2016. Dkt. 27-3 at 5-6 (Pl.'s Resp. to SUMF ¶¶ 1-4); Dkt. 11-5; Dkt. 27-2 at 1 (Achagzai Decl. ¶ 1). Plaintiff started at VOA in 1988 as a contractor and became a full-time employee in 2001. Dkt. 27-3 at 6 (Pl.'s Resp. to SUMF ¶ 3). Immediately prior to his departure from VOA, Plaintiff was an international broadcaster at the GS-12 level and was assigned the role of copy editor. Dkt. 27-3 at 5, 9-10 (Pl.'s Resp. to SUMF ¶¶ 1, 8). The Board oversees VOA, which broadcasts government-sponsored news around the world. Dkt. 27-3 at 5 (Pl.'s Resp. to SUMF ¶ 1).
In May 2014, Achagzai brought suit against the Board, alleging claims under the ADEA and Title VII. Achagzai v. Broad. Bd. of Governors, 170 F. Supp. 3d 164, 168 (D.D.C. 2016) ("Achagzai I"). Among the "37 categories of discriminatory conduct" listed in the complaint, Achagzai, along with his co-plaintiffs, alleged "unfair and unannounced workplace scheduling, frequent downgrades in assignments," and "favoritism shown toward junior staff in all facets of work." Id. at 169. The Court dismissed Achagzai's claims on March 18, 2016 for failure to timely exhaust his administrative remedies with respect to his discrimination and retaliation claims. Id. at 179.
After initiating the 2014 suit, Achagzai continued to work at VOA in the Afghan Service. Dkt. 27-3 at 5-6 (Pl.'s Resp. to SUMF ¶¶ 1-4). The Afghan Service broadcasts news reports from the central office of the VOA. Id. at 11 (Pl.'s Resp. to SUMF ¶ 15). As a copy editor, Achagzai reviewed translations of the to-be-broadcasted materials from English to Pashto before they were aired. Id. at 12 (Pl.'s Resp. to SUMF ¶ 16). About once or twice a year, the work schedules at the Afghan Service were updated, and employees could be assigned to different shifts. Id. at 7 (Pl.'s Resp. to SUMF ¶ 6). In August of 2015 (or the fall of 2015), Plaintiff was reassigned from the evening shift to the morning shift, which required him (at least initially) to arrive at work by 7:00 a.m. each day. Dkt. 27-2 at 2-3 (Achagzai Decl. ¶ 8). Plaintiff complained to his manager about the reassignment, explaining that "it was too early for [him] to take public transportation from [his] home;" that he "would need to leave [his] home at about 5:00 am to catch the bus to the metro, and transfer to another station to get to DC on time;" and "that the very cold weather was not good for [his] health." Id. Plaintiff asked to be assigned to a different shift, but his manager denied that request. Id. Eventually, Plaintiff contracted pneumonia and, when he returned to work, his manager permitted him to arrive at work an hour later than previously required. Id. That accommodation, however, did not entirely address Plaintiff's concerns because he had less time to complete his editing before the show began at 9:30 a.m. and thus had to work under greater pressure. Id. at 3 (Achagzai Decl. ¶ 9).
Despite Plaintiff's complaints about working the morning shift, when the schedule was reset in May 2016, Plaintiff was again assigned to the morning shift, which required that he arrive at work by 7:30 or 8:00 a.m. each day. Dkt. 25-2 at 2 (SUMF ¶ 9); Dkt. 27-3 at 10 (Pl.'s Resp. to SUMF ¶ 9). Plaintiff's only objection to the May 2016 schedule was that he had to work in the morning, Dkt. 25-2 at 2 (SUMF ¶ 9); Dkt. 27-3 at 10 (Pl.'s Resp. to SUMF ¶ 9), buthe acknowledges that he "had no difficulty whatsoever arriving at the office for the morning shift" in "May, when the weather was warmer," Dkt. 25-2 at 3 (SUMF ¶ 12); Dkt. 27-3 at 11 (Pl.'s Resp. to SUMF ¶ 12). Plaintiff also acknowledges that he "was well-suited to perform the duties of copy editor and indeed was one of (if not the most) qualified broadcaster on staff to carry out those assignments." Dkt. 25-2 at 4 (SUMF ¶ 17); Dkt. 27-3 at 12 (Pl.'s Resp. to SUMF ¶ 17). Because of the time difference, the 9:30 a.m. news broadcast to which Plaintiff was assigned aired in the evening in Afghanistan. Dkt. 25-3 (Achgazai Dep. 6:20-7:4).
On April 19, 2016, Achagzai left VOA after signing a Voluntary Separation Incentive Payment ("VSIP") agreement, which was approved by VOA's director on May 13, 2016. Dkt. 27-3 at 6 (Pl.'s Resp. to SUMF ¶ 4); Dkt. 11-5. Plaintiff asserts that, despite the agreement's name, his departure from VOA was an involuntary, constructive discharge, caused by the age discrimination and retaliation that he experienced. Dkt. 27-3 at 6 (Pl.'s Resp. to SUMF ¶ 4); Dkt. 27-1 at 2-3; Dkt. 27-2 at 1 (Achagzai Decl. ¶ 2). Before retiring from VOA in June 2016, Dkt. 27-2 at 1 (Achagzai Decl. ¶ 4), Plaintiff initiated EEO counseling on May 18, 2016, and then filed an administrative complaint of discrimination with that office on May 22, 2016, Dkt. 27-3 at 13 (Pl.'s Resp. to SUMF ¶ 20); Dkt. 11-3 at 2.
On April 6, 2017, Plaintiff filed this suit against the Board, asserting claims for both age discrimination and retaliation under the ADEA, and for other employment discrimination under Title VII. Dkt. 1. Among other things, Plaintiff alleged that "his poetry show was taken from him and given to other younger and newer staff," id. at 5 (Compl. ¶ 13); that he was told he was a "'man of the 60s and 70s' and not able to work on the same level as other younger employees," id. at 6 (Compl. ¶ 13); and that this was all a part of the "new format" enacted in 2010, id., whichhe alleges in general terms allowed "younger employees [to] replace the senior staff," id. at 6 (Compl. ¶ 14). Plaintiff further alleged that management retaliated against him after he complained to them about the alleged age discrimination and filed a prior suit against the Board in which his managers were deposed. Dkt. 25-7 at 8-9; see Achagzai I. In particular, Plaintiff claimed that his reassignment to the morning shift in August 2015 (or the fall of 2015) was motivated both by age discrimination and retaliatory animus. Dkt. 1 at 4, 6 (Compl. ¶¶ 8-9, 16).
In August 2017, the Board moved to dismiss, or, in the alternative, for summary judgment, arguing that Plaintiff had not stated a claim for discrimination based on a class protected by Title VII and that he had not properly exhausted his administrative remedies with respect to his ADEA claims. Dkt. 11. The Court granted that motion in part and dismissed Plaintiff's ...
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