Khadem v. Broad. Bd. of Governors, Civil Action No. 18-1327 (RDM)

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtRANDOLPH D. MOSS United States District Judge
Docket NumberCivil Action No. 18-1327 (RDM)
Decision Date29 October 2020

ZEBA KHADEM, Plaintiff,

Civil Action No. 18-1327 (RDM)


October 29, 2020


This matter is before the Court on Defendant's motion to dismiss Plaintiff's amended complaint. Dkt. 24. Plaintiff Zeba Khadem alleges that her employer, the Broadcasting Board of Governors ("the Board"), discriminated against her in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq. Dkt. 21 at 5-6 (Am. Compl. ¶¶ 16-23). Plaintiff also claims that the Board retaliated against her and subjected her to a hostile work environment in violation of the ADEA. Id. at 6-8 (Am. Compl. ¶¶ 24-29). The Court previously granted summary judgment on certain of Plaintiff's claims and dismissed the others, allowing Plaintiff to file an amended complaint to correct deficiencies in her original complaint. Minute Order (Aug. 16, 2019). Plaintiff filed an amended complaint, Dkt. 21, but it contains few discernable changes from her original complaint, Dkt. 1.

At the outset, the Court notes that the factual and legal issues presented in this case are virtually identical to those in Shah v. Broadcasting Board of Governors, 18-cv-1328: indeed, the operative complaints in each case barely differ. However, because Shah and this matter were

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brought separately, the Court will issue an opinion in each case, with this opinion mirroring in substantial part the opinion that the Court issued in Shah.

As explained below, given Plaintiff's failure to cure the deficiencies in her original complaint when she filed her amended complaint, and in light of Plaintiff's failure adequately to plead her claims in any event, the Court will GRANT the Board's motion to dismiss, Dkt. 24.


The Court, as it must, accepts Plaintiff's factual allegations as true for purposes of evaluating the Board's motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

A. Factual Background

Plaintiff Zeba Khadem is a naturalized United States citizen of Afghan national origin. Dkt. 21 at 3 (Am. Compl. ¶ 5). For thirty-four years, until her retirement in 2017, Khadem worked as an International Broadcaster for the Pashto Service, a division of Voice of America ("VOA"). Dkt. 21 at 3, 4 (Am. Compl. ¶¶ 6-7, 11). The Board—now called the U.S. Agency for Global Media—is the federal agency that oversees the VOA. According to the operative complaint, Khadem was compensated at General Schedule pay scale ("GS") level 12, and her duties included editing, transcribing, and translating various materials that VOA would broadcast by radio. Id. at 3-4 (Compl. ¶¶ 6, 8). As an International Broadcaster, Khadem was required to be fluent in both Farsi and Pashto—two languages that are commonly spoken in Afghanistan. Id. at 4 (Compl. ¶ 8).

In 2014, Plaintiff filed suit against the Board for discrimination on the basis of national origin in violation of Title VII and on the basis of age in violation of the ADEA. Achagzai v. Broad. Bd. of Governors, 170 F. Supp. 3d 164 (D.D.C. 2016) ("Achagzai I"). The suit was one of many brought by the same counsel on behalf of international broadcasters at the VOA alleging

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similar episodes of discrimination.1 In that suit, Plaintiff and four others alleged "37 categories of discriminatory conduct," including "a barrage of insults and insulting behavior aimed toward Plaintiffs," "frequent downgrades in assignments," several "change[s] [to] their schedules." Achagzai I, 170 F. Supp. 3d at 169. They further alleged that they were retaliated against when they voiced their concerns. Id. This Court dismissed all of Plaintiff's claims in that matter because she had not exhausted her administrative remedies. Id. at 176, 178.

Plaintiff filed this case in June 2018, raising a similar array of allegations—many vague—about the Board's allegedly discriminatory and retaliatory actions. See generally Dkt. 1 (Compl.). Most saliently, Plaintiff alleges that the Board altered her job responsibilities by: (1) requiring her to work with several forms of multimedia, instead of the radio translations to which she was accustomed; and (2) requiring her to conduct "translations not [only] from English to Pashto" as she had previously done, "but also from Pashto to English." Dkt. 21 at 4 (Am. Compl. ¶ 14). Completing these new responsibilities, Plaintiff alleges, was possible "only [for] the newly trained and younger staff." Id. The senior staff, in turn, were left "to either retire or be fired for failing to complete assignments." Id. at 5 (Am. Compl. ¶ 14).

Plaintiff complained to management about these changes. Id. at 4 (Am. Compl. ¶ 12). But when she did, "management became more hostile towards her," "marginaliz[ed] her in meetings[] with co-workers, and on air shows and . . . opportunities during the day to day assignments." Id. Meanwhile, "[y]ounger employees were given shows and on[-]air interviews and assignments that were not available to the senior staff and in particular to [Plaintiff]." Id. at

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6 (Am. Compl. ¶ 20). Making matters worse, according to Plaintiff, during the subsequent June 2017 "benchmarking" period, "management failed to give [her] steps" to gain a promotion to the GS-13 level, even though "less deserving but younger colleagues [received] promot[ions] based on the benchmarking." Id. at 5 (Am. Compl. ¶ 15).

In sum, then, Plaintiff alleges that changes to her work responsibilities hindered her performance, id. at 6 (Am. Compl. ¶ 20); that those changes were made in retaliation for her prior suit against the Board or based on discriminatory animus against older employees, id. at 4, 6 (Am. Compl. ¶¶ 9, 20-21); and that the Board's failure to promote her was both retaliatory and discriminatory, id. at 4 (Am. Compl. ¶ 15).

B. Procedural Background

On March 20, 2017, Plaintiff initiated contact with an EEO counselor. Dkt. 14-3 at 1 (EEO Compl.); see also Dkt. 31-1 at 21 (EEO Intake Sheet). In her EEO complaint, Plaintiff alleged that the Board retaliated against her for engaging in protected EEO activity and discriminated against her based on her age and, in particular, that the Board's imposition of the new work responsibilities and improper benchmarking were the products of retaliatory and discriminatory animus. Dkt. 14-3 at 1 (EEO Compl.). Roughly fourteen-and-a-half months later, on June 4, 2018, Plaintiff filed the instant suit. Dkt. 1.

Plaintiff's initial complaint contained three counts: (1) discrimination based on age in violation of Title VII, id. at 5 (Compl. ¶¶ 16-18); (2) discrimination based on age in violation of the ADEA, id. at 5-6 (Compl. ¶¶ 19-23); and (3) retaliation in violation of the ADEA, id. at 6-8 (Compl. ¶¶ 24-29). Plaintiff also made passing references to a hostile work environment, alleging that "[t]she hostile working environment was sufficiently severe and/or pervasive to

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alter the conditions of employment for Plaintiff and to create an abusive working environment." Id. at 8 (Compl. ¶ 29).2

Defendants moved to dismiss, or in the alternative, for summary judgment. Dkt. 14. They argued that Plaintiff (1) failed to exhaust her administrative remedies with respect to her claims related to her modified work responsibilities, Dkt. 14-1 at 8-9; (2) failed to state a claim for age discrimination under Title VII because age is not a protected class under Title VII, id. at 5-6; and (3) failed to state a claim for discrimination, retaliation, or a hostile work environment under the ADEA, id. at 6-13. Plaintiff opposed the motion. Dkt. 16. After a brief stay in the action, see Minute Order (Jan. 10, 2019), Defendants filed their reply to Plaintiff's opposition, Dkt. 20, after which the Court ordered parties to appear for oral argument, see Minute Order (Aug. 9, 2019).

Oral argument took place on August 15, 2019. At the argument, the Court first dismissed Plaintiff's Title VII, age-discrimination claim:

THE COURT: . . . So let me start with the Title VII claims. The Government states, I think quite correctly, that there's no claim for age discrimination under Title VII. I guess the question I just had for the plaintiffs is[:] is there any disagreement with that or should I dismiss the Title VII claims?

MS. SHAH: Your Honor, one of the bases for them being targeted is under Title VII for—based on their age.

THE COURT: But age isn't a classification under Title VII. It is under the Age Discrimination Act, but not under Title VII.

MS. SHAH: The ADEA, yes, I understand. So Title VII, yes, your Honor, you could.

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THE COURT: So I will dismiss, then, the Title VII claims.

MS. SHAH: Okay.

Dkt. 23 at 3:20-4:11 (Tr. of Oral Arg.).

The Court then turned to Defendants' motion for summary judgment. It concluded that Plaintiff failed to exhaust her administrative remedies with respect to her claim premised on the change in her work responsibilities that occurred in May 2018,3 and, thus, the Court granted summary judgment in Defendants' favor on that claim. Id. at 4:12-9:7 (Tr. of Oral Arg.); see also id. 36:16-20 (Tr. of Oral Arg.). But the same conclusion did not follow, the Court explained, for Plaintiff's claim premised on the change in her work responsibilities that occurred in February 2017; as to that claim, the record before the Court lacked sufficient detail to permit it to determine whether Plaintiff had exhausted her administrative remedies. Id. at 21:9-22:4 (Tr. of Oral Arg.). The Court, accordingly, encouraged the parties to confer to discern when EEO counseling was initiated and permitted Defendants to re-assert their objection to the February 2017 position's non-exhaustion, if doing so was supported by the facts. Id. at 22:5-12 (Tr. of Oral Arg.).

Subsequent to that exchange, Defendants urged the Court—"independent of the exhaustion issue"—to dismiss Plaintiff's discrimination claim...

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