Shah v. Broad. Bd. of Governors
| Decision Date | 29 October 2020 |
| Docket Number | Civil Action No. 18-1328 (RDM) |
| Parties | SYED B. SHAH, 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 to dismiss Plaintiff's amended complaint. Dkt. 23. Plaintiff Syed B. Shah alleges that his employer, the Broadcasting Board of Governors ("the Board"), discriminated against him 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. 20 at 5-6 . Plaintiff also claims that the Board retaliated against him and subjected him to a hostile work environment in violation of the ADEA. Id. at 6-8 . 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 his original complaint. Minute Order (Aug. 16, 2019). Plaintiff filed an amended complaint, Dkt. 20, but it contains few discernable changes from his original complaint, Dkt. 1.
Because Plaintiff has made no change to his complaint that would warrant a different decision, and because Plaintiff's claims are in any event without merit, the Court will accordingly GRANT the Board's motion to dismiss.
As it must, the Court 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).
Plaintiff Syed B. Shah served as an International Broadcaster at Voice of America's ("VOA") Pashto division for thirty-four years. Dkt. 20 at 3 . Fluent in Farsi and Pashto, two languages spoken in Afghanistan, Plaintiff edited, transcribed, and translated materials for VOA to broadcast by radio. Id. (Am. Compl. ¶ 7). Until his retirement on or about February 2017, id. at 4 , Plaintiff was compensated at the GS-12 level, id. at 3 . The Board—now called the U.S. Agency for Global Media—is the federal agency that oversees the VOA.
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 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 whenthey voiced their concerns. Id. This Court dismissed all of Plaintiff's claims in that matter because he had not exhausted his 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 his job responsibilities by: (1) requiring him to work with several forms of multimedia, instead of the radio translations to which he was accustomed; and (2) requiring him to conduct "translations not [only] from English to Pashto" as he had previously done, "but also from Pashto to English." Dkt. 20 at 4 . 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.
Plaintiff complained to management about these changes. Id. (Am. Compl. ¶ 11). But when he did, "management became more hostile towards him" and "isolat[ed] him to the evening shift," where he had to run a show on his own. 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 6 . Making matters worse, according to Plaintiff, during the subsequent June 2017 "benchmarking" period, "management failed to give him 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 4 .
In sum, then, Plaintiff alleges that changes to his work responsibilities hindered his performance, id. at 6 ; that those changes were made in retaliation for his prior suit against the Board or based on discriminatory animus against older employees, id. at 3, 6 ; and that the Board's failure to promote him was both retaliatory and discriminatory, id. at 4 .
On March 20, 2017, Plaintiff initiated contact with an EEO counselor. Dkt. 20-1 at 3; Dkt. 25-2 at 13 (EEO Compl.). In his EEO complaint, Plaintiff alleged that the Board retaliated against him for engaging in protected EEO activity and discriminated against him based on his 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. 25-2 at 13 (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. ¶¶ 15-17); (2) discrimination based on age in violation of the ADEA, id. at 6 (Compl. ¶¶ 18-22); and (3) retaliation in violation of the ADEA, id. at 6-8 (Compl. ¶¶ 23-28). Plaintiff also made passing references to a hostile work environment, alleging that "[t]he hostile working environment was sufficiently severe and/or pervasive to alter the conditions of employment for Plaintiff and to create an abusive working environment." Id. at 8 (Compl. ¶ 28).2
Defendants moved to dismiss, or in the alternative, for summary judgment. Dkt. 13. They argued that Plaintiff (1) failed to exhaust his administrative remedies with respect to his claims related to his modified work responsibilities, Dkt. 13-1 at 8-9; (2) failed to state a claimfor 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 6-12. Plaintiff opposed the motion. Dkt. 15. After a brief stay in the action, see Minute Order (Jan. 11, 2019), Defendants filed their reply to Plaintiff's opposition, Dkt. 19, 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:
Dkt. 22 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 his administrative remedies with respect to his claim premised on the change in his work responsibilities that occurred in May 2018,3 and, thus, the Court grantedsummary 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 his 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 his 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 premised on the February 2017 changes to his job responsibilities. Id. at 23:10-11 (Tr. of Oral Arg.). In response, the Court inquired of Plaintiff's counsel: "What was the change in the position [that] you think . . . constitutes an adverse employment action?" Id. at 23:12-14 (Tr. of Oral Arg.). An extended colloquy ensued, with the Court informing Plaintiff's counsel that "it's not the case that any change is actionable." Id. at 25:2-5 (Tr. of Oral Arg.). Plaintiff's counsel responded that requiring Plaintiff to translate from Pashto to English, in addition to translating from English to Pashto, constituted sufficient grounds for an ADEA discrimination or retaliation claim because it was a "completely" different task, akin to "driving your car to work and then flying back home." Id. at 29:3-4 (Tr. of Oral Arg.). The Court was unpersuaded and concluded that:
[T]he Government makes a fair point . . ....
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