UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
MOHAMMED MOHMAND,
Plaintiff,
v. Civil Action No. 17-618 (RDM) BROADCASTING BOARD OF GOVERNORS, et al.,
Defendants.
MEMORANDUM OPINION
This matter is before the Court on Defendants’ motion to dismiss or, in the alternative,
for summary judgment, Dkt. 10. Plaintiff Mohammed Mohmand alleges that his employer,
Broadcasting Board of Governors (“the Board”), discriminated against him in violation of the
Age Discrimination in Employment Act of 1967 (“ADEA”) and Title VII of the Civil Rights Act
of 1964 (“Title VII”). He also alleges that the Board subjected him to a hostile work
environment and retaliated against him for reporting the harassment. Mohmand’s claims are
mostly duplicative of those he raised in a previous action before this Court, which were
dismissed in relevant part for his failure to exhaust administrative remedies. See Achagzai v.
Broad. Bd. of Governors (Achagzai I), 170 F. Supp. 3d 164 (D.D.C. 2016). The Court concludes
that Mohmand has again failed to exhaust his administrative remedies for most of the acts
alleged in his complaint. With respect to the only incident Mohmand has properly exhausted—
his May 9, 2016 schedule change—the Court holds that his allegations fail to state a claim for
relief under any of his alleged theories of discrimination. The Court will, accordingly, GRANT Defendants’ motion to dismiss or, in the
alternative, for summary judgment, Dkt. 10.
I. BACKGROUND
A. Factual Background Plaintiff Mohammed Mohmand is a 70-year-old native Pashto and Dari speaker who has
worked as an international broadcaster for the Pashto Language Service since 1985. Dkt. 1 at 3–
4 (Compl. ¶¶ 6–9). At all times relevant to the complaint, Mohmand’s official duties included
conducting interviews, reporting on special events, writing and voicing programs, translating
texts, and “other duties, as assigned.” Dkt. 10-5 at 1. The Defendants in this action include the
Board of Broadcasting Governors (“the Board”), an independent federal agency responsible for
all non-military international broadcasting sponsored by the U.S. government, Dkt. 1 at 7
(Compl. ¶ 19), and Jeffrey Shell, the Chairman of the Board, Dkt. 1 at 1. The Board is
responsible for Voice of America (“VOA”), which hosts the Pashto Language Service. Id.
In 2010, VOA’s management decided to implement a programming change referred to as
the “new format.” Id. at 8 (Compl. ¶ 24). The crux of Mohmand’s complaint is that under the
“new format,” younger employees were given favorable treatment while older employees, like
Mohmand, were subjected to a laundry list of “hostilities and discriminatory acts” designed to
“forc[e]” them “to leave the service.” Id. at 4–5 (Compl. ¶¶ 12–13). Mohmand loosely groups
his allegations—which span from 2010 to 2016—into four claims: age discrimination under Title
VII (Count I); age discrimination in violation of the ADEA (Count II); unlawful retaliation in
violation of the ADEA and Title VII (Count III); and hostile work environment. See id. at 7–10
(Compl.).
First, and most prominently, Mohmand alleges that VOA’s management committed a
discrete act of discrimination against him by instituting a schedule change on May 9, 2016, in
2 which “[he] was assigned production and plum assignments were given to junior staff.” Id. at 8
(Compl. ¶ 27). Mohmand alleges that production was a “position for which he [was] not trained,
and a position that [was] not part of his job.” Id. at 8 (Compl. ¶ 13). He further alleges that this
“biased schedule[] [was] used by [his supervisor] Mr. Ibrahim [Nassar] as a[n] . . . intentional,
deliberate and discriminatory tool to serve his goal of forcing the seniors in the staff to leave the
service.” Id.
Second, Mohmand “re-alleges and incorporate[s] by reference” the above allegations in
support of his claim that VOA’s management “subjected him to intentional and unlawful ADEA
retaliatory discrimination,” id. at 9 (Compl. ¶ 29–30), and “adversely affected [his] employment
opportunities in violation of Title VII,” id. at 10 (Compl. ¶ 33).
Third, Mohmand alleges that VOA’s management “subjected him to a hostile work
environment” when he refused to leave his job. Id. at 4 (Compl. ¶ 12). His complaint lists a host
of wrongdoings, including “failing to provide him with the proper equipment to perform his
job;” “discussing his mistakes with his colleagues instead of with him;” and “excluding him from
meetings.” Id. at 4–5 (Compl. ¶ 13). In addition, Mohmand avers that, “[i]n order to escalate the
hostile work environment,” his supervisor, Mr. Ibrahim Nassar, required him to “produce [a]
poetry show” on March 27, 2012—"without having trained [him]”— and then “humiliat[ed] and
harass[ed]” him about his production skills.” Id. at 6 (Compl. ¶ 17). Finally, Mohmand alleges
that the May 9, 2016 schedule again relegated him to production even though Mr. Ibrahim
Nassar “knew or should have known” that it would cause him “pain and suffering.” Id. at 6
(Compl. ¶¶ 17–18).
3 Due to the “long term harassment,” described above, Mohmand alleges that he has
suffered “physical and psychological” harm, including difficulty sleeping and anxiety. Id. at 6
(Compl. ¶¶ 16, 18).
B. Procedural Background
Mohmand met with an Equal Employment Opportunity (“EEO”) counselor from the
Board’s Office of Civil Rights on May 18, 2016, and filed a formal complaint that same day.
See Dkt. 10-3 at 1. Mohmand’s EEO complaint alleges that his “managing editor . . . and upper
management” have “harassed [him], retaliated against [him], [and] created a hostile work
environment” since “2010 or so,” resulting in him “suffer[ing] damages, sleep disorders,
insomnia,” and possibly, “Post Traumatic Stress Disorder.” Id. at 2. The EEO complaint,
however, mentions only one specific incident: Mohmand alleges that the May 9, 2016 schedule
replaced “[his] responsibilities . . . with production”— “something in which [he has] [no] formal
training” and is “outside [of his] formal job description.” Id. at 2, 4. On April 6, 2017,
Mohmand filed the present action, raising these same allegations. See Dkt. 1. There is no
indication, based on the parties’ submissions, that the agency rendered a decision before
Mohmand filed suit.
In lieu of filing an answer, Defendants moved to dismiss Mohmand’s complaint or, in the
alternative, for summary judgment. Dkt. 10. In support of its motion, Defendants attached a
statement of undisputed material facts, Dkt. 10-1; Mohmand’s formal EEO complaint, Dkt. 10-3;
Mohmand’s responses to questions during the agency’s preliminary investigation, Dkt. 10-4; and
Mohmand’s official job description, Dkt. 10-5. Mohmand timely filed an opposition, arguing
that, “but for his age and national origin[,] he would not have been re-assigned [to] production,”
Dkt. 12-1 at 5 (emphasis added); and that the May 9, 2016 schedule change was intended to
4 retaliate against him for filing previous grievances, id. at 6. He attached a statement of disputed
facts, Dkt. 12-3, but failed to identify any portion of the record that supported his statements, as
required by Local Rule 7(h). Finally, Defendants filed a reply to Mohmand’s opposition,
attaching to it a response to Mohmand’s statement of disputed facts, Dkt. 14-1, the May 2016
schedule for radio programming, Dkt. 14-2, Mohmand’s answers to the EEO’s preliminary
questions, Dkt. 14-3, and an affidavit from Mohmand’s supervisor, Ibrahim Nasar, Dkt. 14-4.
II. LEGAL STANDARD
Defendants move to dismiss Mohmand’s complaint for failure to state a claim. A
defendant may prevail on a Rule 12(b)(6) motion only by demonstrating that the facts alleged in
the complaint and accepted as true for purposes of resolving the motion do not warrant relief.
See Harris v. Ladner, 127 F.3d 1121, 1123 (D.C. Cir. 1997). If the Court concludes that the
movant’s arguments go beyond the pleadings and require consideration of facts not alleged in the
complaint, the Court may either deny the motion on that ground or may, where appropriate and
with reasonable notice to the parties, convert the motion to dismiss to one for summary judgment
under Rule 56. See Fed. R. Civ. P. 12(d).
Here, Defendants also move, in the alternative, for summary judgment under Rule 56.
The Court may grant summary judgment only when the moving party “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). The moving party “bears the initial responsibility” of “identifying
those portions” of the record that “demonstrate the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once it has carried that burden, the
opposing party must then come forward with declarations or other evidence showing that there is
5 a genuine issue of material dispute for the trier of fact. Grimes v. District of Columbia, 794 F.3d
83, 94–95 (D.C. Cir. 2015).
III. DISCUSSION
Defendants argue that Mohmand’s claims fail for three reasons. First, Defendants assert
that Mohmand has failed to state a claim for relief under Title VII because he alleges only age
discrimination. Dkt. 10-2 at 8–9. Second, Defendants contend that Mohmand has failed to
exhaust his claims, aside from his claim that Defendants violated the ADEA when it changed his
schedule on May 9, 2016. Id. at 12–14. Third, and finally, Defendants argue that Mohmand’s
allegations about the schedule change are insufficient to state a claim for relief under any of his
alleged theories discrimination: discrete discriminatory act, unlawful retaliation, or hostile work
environment. Id. at 5–7, 14–17. The Court agrees with Defendants on all three bases for
dismissal and will, accordingly, grant Defendants’ motion to dismiss, or, in the alternative for
summary judgment, Dkt. 10.
A. Title VII Claims
Mohmand labels the first count in his complaint “Discrimination Under Title VII” and
alleges that the Board “discriminated against [him] based on his age, in violation of Title VII.”
Dkt. 1 at 7 (Compl. ¶ 20). As Defendants note, however, Title VII prohibits discrimination
based on an individual’s “race, color, religion, sex, or national origin,” but not based on an
individual’s age. 42 U.S.C. § 2000(e)-2(a); see also Dkt. 10-2 at 8. As a result, to the extent that
Mohmand alleges discrimination on the basis of age (or retaliation for complaining about age
discrimination) in violation of Title VII, his claims must fail. It is true that Mohmand alludes to
national origin discrimination in his complaint, but he does so only vaguely and in passing and
not in cause of action. See Dkt. 1 at 4 (Compl. ¶ 12) (“Plaintiff refused to succumb to the
6 hostilities and discriminatory acts based on his age and national origin.”). He attempts to bolster
this conclusory allegation in his opposition to the motion to dismiss. See Dkt 12-1 at 5 (“[B]ut
for his age and national origin [Mohmand] would not have been re-assigned production.”).
These scattered references are insufficient. Mohmand is represented by counsel and Count I of
his complaint is clear: it alleges only discrimination “based on [Mohmand’s] age.” Dkt. 1 at 7
(Compl. ¶ 20). Nor can the references to nationality contained in Mohmand’s opposition brief
rectify this shortcoming; it “is axiomatic that a party may not amend his complaint” in his
briefing. Dufur v. U.S. Parole Comm’n, 314 F. Supp. 3d 10, 19 (D.D.C. 2018) (alterations
omitted) (quoting ACLU v. Trump, 266 F. Supp. 3d 133, 142 n.5 (D.D.C. 2017)). In any event,
had Mohmand properly alleged national-origin discrimination, his Title VII claims—which
exactly overlap with his ADEA claims— would still fail for the reasons set forth below.
B. ADEA Claims
1. Administrative Exhaustion
Under the ADEA, employees must timely exhaust administrative remedies before
bringing an employment discrimination suit. See Hamilton v. Geithner, 666 F.3d 1344, 1349
(D.C. Cir. 2012). There are two tracks for doing so: the employee can either “elect to follow
[the] . . . procedures” that exist under Title VII, or can “take an alternative path to federal court”
by “bringing [the] [age discrimination] claim directly . . . within 180 days of the allegedly
discriminatory act,” and “provid[ing] the EEOC with notice of . . . intent to sue at least 30 days
before commencing suit.” Achagzai I, 170 F. Supp. 3d at 172 (alteration in original) (quoting
Rann v. Chao, 346 F.3d 192, 195 (D.C. Cir. 2003)). Here, Mohmand does not allege that he
followed the alternative track; thus, the Court will consider only whether he properly exhausted
his claim pursuant to the procedures under Title VII.
7 Under that approach, which tracks the Title VII process, the employee first initiate the
administrative process by notifying an EEO counselor within 45 days of the alleged
discriminatory act. See 29 C.F.R. § 1614.105(a)(1). If the counselor cannot resolve the issue
through mediation, she must notify the employee of her right to file an administrative complaint,
triggering a 15-day window to do so. See § 1614.105(d). Any allegations that are not timely
raised in the administrative process cannot form the basis for a subsequent suit. See Mount v.
Johnson, 36 F. Supp. 3d 74, 83 (D.D.C. 2014). Moreover, when an employee alleges that she
was the victim of a discrete or discriminatory act, the timeliness inquiry focuses on that
particular act. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002). Importantly,
“discrete discriminatory acts are not actionable if time barred, even when they are related to acts
alleged in [a] timely” manner in the administrative process. Id. at 113. A separate inquiry,
however, governs allegations of a hostile work environment because the nature of that claim
“involves repeated conduct.” Id. at 115. Under that inquiry, as long as one “act contributing to
the claim occurs within the filing period, the entire time period of the hostile environment may
be considered by a court for purposes of determining liability.” Id. at 117.
Because the ADEA’s exhaustion requirement is not jurisdictional, Menominee Indian
Tribe of Wis. v. United States, 614 F.3d 519, 527 (D.C. Cir. 2010), “the defendant bears the
burden of pleading and proving” failure to exhaust as an affirmative defense. Bowden v. United
States, 106 F.3d 433, 437 (D.C. Cir. 1997). Here, Defendants properly raised that defense, see
Dkt. 10-2 at 8–10, and submitted a statement of undisputed material facts (“SUMF”), Dkt. 10-1,
supported by citations to Mohmand’s EEO complaint, Dkt. 10-3, and responses that he submitted
to the EEO’s investigation, Dkt. 10-4. It is undisputed that Mohmand initiated the EEO process
on May 18, 2016. Dkt. 10-2 at 12. As such, he only timely exhausted “discrete retaliatory or
8 discriminatory act[s]” that occurred within 45 days of May 18, 2016—that is, conduct that
occurred on or after April 3, 2016. See Morgan, 536 U.S. at 110. The only alleged incident
identified in Mohmand’s complaint that falls within this actionable window is the May 9, 2016
schedule change. Dkt. 1 at 6 (Compl. ¶ 18). The schedule change, moreover, is the only specific
act mentioned in Mohmand’s opposition brief. Dkt. 12-1. Accordingly, the Court will limit its
analysis to claims that relate to that incident.
2. Theories of Discrimination
a. Discrete Discrimination
Mohmand alleges that the Board discriminated against him on the basis of his age in
violation of the ADEA. “[T]he two essential elements of a discrimination claim” under the
ADEA “are that (i) the plaintiff suffered an adverse employment action (ii) because of the
plaintiff’s . . . age . . . .” Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008). In this
context, “an adverse employment action [requires] a significant change in employment status,
such as hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing significant change in benefits.” Douglas v. Donovan, 559
F.3d 549, 552 (D.C. Cir. 2009) (internal quotation marks and emphasis omitted). To survive a
motion to dismiss, the allegations contained in the complaint must be sufficient to allow a
reasonable trier of fact to find an objective, tangible harm—subjective injuries are not enough.
Id. at 552–53. Although many workplace incidents may be upsetting to an employee, “not
everything that makes an employee unhappy is an actionable adverse action.” Id. at 552 (internal
quotation marks omitted). Rather, to qualify as an “adverse employment action,” the action must
alter the terms or conditions of employment. See Burlington N. & Santa Fe Railway Co. v.
White, 548 U.S. 53, 62 (2006).
9 Here, Mohmand alleges that the Board favored “younger, less experienced” staff by
giving them the “plum assignments” in the new schedule change and relegating him to
“production” because of his age. Dkt. 1 at 8 (Compl. ¶ 27). These allegations, however, lack
specificity and, as alleged, do not rise to the level of an adverse employment action, and
Mohmand’s opposition to Defendants’ motion does not offer any further basis to conclude that
he has suffered an adverse employment action. Mohmand has not plausibly alleged any specific
reduction in supervisory duties, for example, nor any elevation of less qualified staff members to
supervisory positions, nor any reduction in salary, pay grade, or benefits. To the contrary, he
makes only a passing allegation that he “was denied a promotion and pay for work that he
performed.” Dkt. 1 at 11 (Compl. Damages). But without any additional factual allegations or
nexus to the May 9, 2016 schedule—the sole action properly before the Court—this conclusory
statement simply “will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Indeed, if anything,
the May 2016 schedule, Dkt 14-2, actually undermines Mohmand’s conclusory statement. Far
from establishing that he was demoted to “producer,” the schedule shows that the international
broadcasters rotated were assigned to various duties and, indeed, that Mohmand was assigned, on
certain shifts, to be a reporter or an interviewer. Id. at 2. The Court cannot accordingly
conclude, in the absence of evidence to the contrary, that Mohmand was stripped of any
supervisory duties or demoted to a lower pay grade. Dkt. 14-2 at 1–2. Mohmand’s principal
complaint, moreover, appears to be that among similarly situated employees with the same job
title, he was assigned duties that he found unpleasant. Although this is an understandable
grievance, the D.C. Circuit has cautioned that courts should not engage in “judicial
micromanagement of business practices” by second-guessing employers’ decisions about “which
10 of several qualified employees will work on a particular assignment.” Mungin v. Katten
Munchin & Zavis, 116 F.3d 1549, 1556 (D.C. Cir. 1997).
Accordingly, the Court grants Defendants’ motion with respect to Count II.
b. Unlawful Retaliation
Mohmand also alleges that the Board retaliated against him for filing grievances about
the Board’s allegedly discriminatory conduct. Dkt. 1 at 9 (Compl. ¶ 29). The ADEA prohibits
an employer from subjecting employees to an adverse employment action for complaining of, or
participating in investigations of, alleged discriminatory acts. 29 U.S.C. § 623(d). To prevail on
a claim of unlawful retaliation under the ADEA, a plaintiff must show that (1) he engaged in
activity protected by the ADEA; (2) he suffered an adverse employment action; and (3) there
was a causal connection between the protected activity and the adverse action. See Passer v. Am.
Chem. Soc., 935 F.2d 322, 331 (D.C. Cir. 1991).
Here, Mohmand baldly alleges that “[t]he Agency intentionally subjected [him] to
intentional and unlawful ADEA retaliatory discrimination,” and “re-alleges and incorporate[s] by
reference the allegations” found in the rest of his complaint. Dkt. 1 at 9 (Compl. ¶¶ 29–30).
Because the May 9, 2016 schedule change is the only incident that Mohmand has properly
exhausted, however, the Court will consider only whether that schedule change, standing alone,
is sufficient to state a claim for unlawful retaliation. The Court concludes that it is not.
Putting aside for the moment whether the schedule change rises to the level of a
retaliatory act, the Court agrees with Defendants that Mohmand has failed to allege facts
sufficient to show any “causal connection” between his “protected activity” (what the Court
11 presumes to be his 2012 complaint to HR about the new format and his 2014 lawsuit),1 and the
alleged “adverse action” (the May 9, 2016 schedule change). Passer, 935 F.2d at 331. Although
judges in this circuit are of different minds about what facts a plaintiff must plead to allege a
causal connection in support of a retaliation claim, see Menoken v. McGettigan, 273 F. Supp. 3d
188 (D.D.C. 2017), all agree that, at minimum, a plaintiff must allege “that he or she was
subjected to an adverse action ‘because of’ protected activity.” Id. at 200–01 (emphasis added).
Mohmand, however, never alleges that he was subjected to the May 9, 2016 schedule change
“because of” his 2012 complaint or because of his 2014 law suit; in fact, he never identifies what
protected activity he engaged in or what retaliatory act he suffered in his complaint. By any
measure, that fails the pleading standard set forth in Iqbal, 556 U.S. at 678.
Even if the Court were to find that Mohmand did enough to allege that he was retaliated
against for engaging in protected activity, he has not pled any facts to support that bare assertion.
To be sure, the D.C. Circuit has recognized that in certain circumstances, “[t]emporal proximity
can support an inference of causation.” Hamilton, 666 at 1357 (quoting Woodruff v. Peters, 482
F.3d 521, 529 (D.C. Cir. 2007); see also Menoken, 273 F. Supp. ed at 201. But here, the
schedule change Mohmand complains of “is entirely too remote in time” from any possible
protected activity the Court has identified. Dkt. 10-2 at 10. Nearly four years elapsed between
Mohmand’s 2012 complaint and his 2016 schedule change, and nearly two years elapsed
between Mohmand’s filing of suit before this Court and the schedule change. Moreover, in that
1 Read charitably, Mohmand’s complaint and brief in opposition allude to, but never expressly identify, two instances of protected activity. First, Mohmand’s complaint alleges that “he filed a formal complaint with HR in May 2012.” Dkt. 1 at 6 (Compl. ¶ 17); see also Dkt. 10-4 at 2–3 (Mohmand EEO Ans. ¶ 12) (noting that his supervisor, Mr. [Ibrahim] Nassar, was contacted about his complaint on August 13, 2012). Second, Mohmand’s brief in opposition states that “[h]e complained to Human Resources in 2014” and “filed a federal claim with his colleagues” in Achagzai I. Dkt. 12-1 at 6. 12 intervening time, Mohmand’s manager, Mr. Ibrahim Nasar, expressly told others not to assign
Mohmand to production duties in response to his 2012 complaint. See Dkt. 1 at 6 (Compl. ¶ 17).
Accordingly, the Court lacks any basis for inferring that Mohmand was retaliated because of any
protected activity.
Accordingly, the Court will grant Defendants’ motion with respect to Count III.
c. Hostile Work Environment
Finally, Mohmand alleges that the Board subjected him to a hostile work environment
between 2010 and 2016. Dkt. 1 at 4–5, 11 (Compl. ¶¶ 13, 34). As the Court noted in Achagzai I,
there is a high bar for “demonstrating a hostile work environment claim.” 170 F. Supp. 3d at
183. “[A] plaintiff must show that his employer subjected him to ‘discriminatory intimidation,
ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.’” Id. (quoting Baloch, 550 F.3d at
1191, 1201). Hence, “even a few isolated incidents of offensive conduct do not amount to
actionable harassment.” Id. (quoting Stewart v. Evans, 275 F.3d 1126, 1134 (D.C. Cir. 2002)).
This limit on hostile work environment claims avoids imposing “a general civility code” through
federal civil rights statutes and “filter[s] out complaints attacking the ordinary tribulations of the
workplace.” Id. (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 778 (1998) (internal
quotation marks omitted)).
Although neither the D.C. Circuit nor the Supreme Court has yet decided whether “a
hostile work environment claim can be brought under the ADEA,” assuming it can be, “the same
standard would apply.” Id. (quoting Ware v. Hyatt Corp., 80 F. Supp. 3d 218, 227 (D.D.C.
2015)). “In determining whether an actionable hostile work environment claim exists,” the
Court must, moreover, “look to all the circumstances, including the frequency of the
13 discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee’s work
performance. Morgan, 536 U.S. at 116. The employer’s “conduct must be extreme,” and must
be “both objectively and subjectively offensive,” such “that a reasonable person would find” the
conduct “hostile or abusive.” Faragher, 524 U.S. at 787–88.
Most of Mohmand’s allegations regarding a hostile work environment in this case
involve the same shift to the “new format” raised in his previous suit. As this Court held there,
conclusory allegations of “harassing” behavior that restate the legal standard for hostile work
environment claims without offering supporting facts do not “satisfy the pleading requirements
established in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).” Achagzai I, 170 F.
Supp. 3d at 184. Mohmand does describe some specific actions taken by the Board that
allegedly contributed to a hostile work environment. These include an incident in 2012 in which
his supervisor assigned him to produce a poetry show and then “stood over him to find fault in
the way [he] was producing the show,” Dkt. 1 at 6 (Compl. ¶ 17), and the May 9, 2016 schedule
change, id. (Compl. ¶ 18). He also references a litany of workplace grievances that he alleges
occurred between 2010 and 2016, including being provided insufficient equipment, being
criticized in front of his coworkers, and being excluded from meetings. Id. at 4–5 (Compl. ¶ 13).
The Court concludes that these incidents are both too isolated and insufficiently severe to
state a hostile work environment claim. See Stewart, 275 F.3d at 1134 (“[A] few isolated
incidents of offensive conduct do not amount to actionable harassment.”). To begin, “the sheer
volume” of Mohmand’s allegations carries no force: “A long list of trivial incidents is no more a
hostile work environment than a pile of feathers is a crushing weight.” Baird v. Gotbaum, 792
F.3d 166, 172 (D.C. Cir. 2015). The two discrete acts that Mohmand raises fair no better. See
14 Barbour v. Browner, 181 F. 3d 1342, 1348 (D.C. Cir. 1999) (holding that two incidents over two
years, supplemented with conclusory statements regarding mildly harassing behavior, were
insufficiently severe or pervasive to constitute a hostile work environment); id. (citing
approvingly to cases in which other Courts of Appeals found no hostile working environment
where plaintiffs alleged “five mild incidents of harassment over [a] 16 month period” and “two
incidents over [a] three week period”).
Although the D.C. Circuit has recognized that a single, sufficiently severe incident may
suffice to create a hostile work environment, see Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 577
(D.C. Cir. 2013) (per curiam), the events described by Mohmand do not come close to the level
of severity required to state such a claim, contra id. at 579–80 (collecting cases in which
plaintiffs were subjected to “physical assault,” “sexual assault,” “racially hostile graffiti that
amounted to [a] death threat,” “the use of several racial epithets and insults,” and “a burning
cross”). As such, the schedule changes that Mohmand describes, such as assigning him to
production, Dkt. 1 at 4 (Compl. ¶ 13), and other workplace grievances that he identifies, are not
sufficiently severe to support a claim for a hostile working environment.
Accordingly, the Court dismisses Mohmand’s hostile work environment claim.
15 CONCLUSION
For the foregoing reasons, the Court will GRANT Defendants’ motion to dismiss or, in
the alternative, for summary judgment, Dkt. 10.
A separate order will issue.
/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge
Date: September 30, 2018