Achagzai v. Broadcasting Board of Governors

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

TAHER ACHAGZAI, et al.,

Plaintiffs,

v.
Civil Action No. 14-768 (RDM)
BROADCASTING BOARD OF
GOVERNORS,

Defendant.

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Plaintiffs’ Motion for a Preliminary Injunction. Dkt.

41. The underlying lawsuit alleges that Defendant Broadcasting Board of Governors (“Board”)

has engaged over the course of several years in systematic discrimination on the basis of age and

nationality against five longstanding employees. All of the Plaintiffs are at least 60 years old,

have been employed by the Board’s Voice of America (“VOA”) broadcasting service for

between 14 and 33 years, and are naturalized United States citizens of Afghani descent. All

work in VOA’s South Asia Division, Afghan Division (“Pashto Service”) as international

broadcasters, although they serve in different capacities. Among other things, they allege that

the current editing manager of the Pashto Service, Mohammad Ibrahim Nasar, has created

schedules that devalue senior staff and replace them with junior employees, demoted senior staff

to less desirable assignments, and failed to provide senior staff with adequate training for their

new roles. The Board has moved to dismiss the complaint, or, in the alternative, for summary

judgment, arguing that Plaintiffs failed to timely exhaust their administrative remedies and that

the amended complaint fails to state a claim upon which relief can be granted.
 After the Board’s motion was fully briefed, Plaintiffs filed the present motion, which

seeks a preliminary injunction blocking implementation of recent schedule changes affecting two

of the five Plaintiffs: Mohammad Mohmand and Zeba Khadem. 1 In particular, Mohmand

objects to his assignment to do production work four days a week, and Khadem objects to

Ibrahim Nasar’s failure to assign her to a talk show. They contend that the present schedule was

adopted in retaliation for their complaint and that they will suffer irreparable injury unless the

Court grants temporary relief. The Board opposes Plaintiffs’ motion, challenging both the merits

of Plaintiffs’ retaliation claim and the need for preliminary relief.

As explained below, the Court concludes that Plaintiffs have failed to meet their

substantial burden of demonstrating that a preliminary injunction is warranted. Plaintiffs’

motion is, accordingly, DENIED.

I. BACKGROUND

Plaintiffs Mohmmed Mohmand and Zeba Khadem are longtime employees of Voice of

America, a government-operated broadcasting service governed by the Board. Mohmand is 68

years old, and Khadem is 64. Dkt. 25 at 3–4 (Am. Compl. ¶ 8). Both are naturalized U.S.

citizens of Afghani descent who have worked at VOA for more than 30 years. Id. (Am. Compl.

¶¶ 6–8). Along with three of their co-workers, Mohmand and Khadem filed a lengthy complaint

in this Court in May 2014, asserting 18 counts and covering over 200 pages and 800 numbered

paragraphs. See Dkt. 1. On the Board’s motion, the Court dismissed nine of those counts for

failure to exhaust administrative remedies under the Federal Tort Claims Act and struck the

remainder of the complaint for failure to comply with Federal Rules of Civil Procedure 8 and

1
At oral argument on February 4, 2016, Plaintiffs also sought relief for Taher Achagzai, a third
Plaintiff. Because Plaintiff’s opening brief contains no argument or support for extending any
relief to Achagzai, see Dkt. 41, the Court will limit its analysis to Mohmand and Khadem.
2
12(f), which require that a complaint set forth “a short and plain statement of the claim.” See

Dkt. 24. The five plaintiffs then filed an amended complaint that pared their claims in half, now

asserting nine counts alleging workplace discrimination on the basis of their nationality, in

violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.,

and on the basis of their age, in violation of the Age Discrimination in Employment Act of 1967

(“ADEA”), 29 U.S.C. § 621 et seq. See Dkt. 25. Plaintiffs’ claims allege discrete acts of

discrimination, the creation of a hostile work environment, and retaliation based on Plaintiffs’

complaints regarding these work conditions. Id.

The amended complaint includes a litany of allegations of purportedly discriminatory

conduct, including “creating unfair and biased schedules,” “removing Plaintiffs from positions

[as] shift editor[s],” “taking away their shows,” “assigning them tasks for which they ha[ve] not

been trained,” refusing “to provide them with adequate training,” and “treating younger staff

more favorably.” Dkt. 25 at 5–6 (Am. Compl. ¶ 14). According to Plaintiffs, these acts created a

hostile workplace and were intended to pressure Plaintiffs to resign. Id. at 7 (Am. Compl. ¶ 17).

After Plaintiffs filed their amended complaint, the Board moved to dismiss, or, in the

alternative, for summary judgment. Dkt. 30. That motion posits that Plaintiffs waited too long

to initiate the administrative Equal Employment Opportunity (“EEO”) process and that, in any

event, the amended complaint fails to state a claim upon which relief may be granted. Id. After

the Board’s motion was fully briefed, Plaintiffs filed the present motion for a preliminary

injunction, seeking an order prohibiting the Board from implementing—or, more accurately,

from continuing to implement—changes to Mohmand and Khadem’s schedules. See Dkt. 41.

According to Plaintiffs, the new schedule assigns Mohmand to production duties four days a

week, which constitutes a demotion from his prior role as “shift editor.” Dkt. 43 at 2. Plaintiffs

3
further contend that Mohmand has not been trained to perform production duties and that his

new assignment is causing him anxiety and will otherwise damage his health, his reputation, and

the quality of shows that he is forced to produce. Id. at 4–6. With respect to Khadem’s

schedule, Plaintiffs contend that the new schedule deprives her of a talk show and “[s]ilenc[es]

her voice on the air as a form of retaliation for her complaint.” Dkt. 41 at 4. Although Plaintiffs

conceded at oral argument that Khadem has not had her own talk show since 2010, they

nonetheless contend that if her talk show is kept “off the air for an even longer period of time,

she will lose her audience,” “her contacts, and “her sources as well as the trust that her sources

have in her as a Voice of America journalist,” Dkt. 43 at 5. As reflected in the schedule

submitted by both parties, although not given a talk show, Khadem is scheduled to broadcast the

news several times a week. Dkt. 41-2 at 7–8.

The Court convened a status conference and argument shortly after Plaintiffs moved for a

preliminary injunction. At that conference, Plaintiffs represented that the new schedule was

already in effect. In response to a question from the Court, moreover, Plaintiffs declined an

evidentiary hearing on the motion, opting instead simply to file a reply. After discussing the

need for the movant to make a specific showing of irreparable harm supported by the evidence,

the Court offered Plaintiffs the opportunity to make a supplemental filing and offered the Board

an opportunity to do so as well. In response, Plaintiffs filed a reply supported by additional

declarations, see Dkt. 43, and the Board filed a supplemental memorandum in opposition to

Plaintiffs’ motion for preliminary injunction, see Dkt. 44. Following submission of these

materials, the Court afforded the parties an opportunity for further argument on Plaintiffs’

motion for a preliminary injunction, Dkt. 41, along with argument on the Board’s pending

motion to dismiss or, in the alternative, for summary judgment, Dkt. 30. At that hearing, the

4
Court indicated that it would deny Plaintiffs’ motion for a preliminary injunction and that the

instant opinion would be forthcoming.

II. DISCUSSION

“A preliminary injunction is an extraordinary remedy that should be granted only when

the party seeking the relief, by a clear showing, carries the burden of persuasion.” Cobell v.

Norton, 391 F.3d 251, 258 (D.C. Cir. 2004). To prevail, a party seeking a preliminary injunction

must show (1) “that he is likely to succeed on the merits,” (2) “that he is likely to suffer

irreparable harm in the absence of preliminary relief,” (3) “that the balance of equities tips in his

favor,” and (4) “that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council,

Inc., 555 U.S. 7, 20 (2008). Before Winter, courts in this Circuit evaluated these factors on a

“sliding scale.” Davenport v. Int’l Bhd. of Teamsters, 166 F.3d 356, 360–61 (D.C. Cir. 1999).

Under that approach, a strong showing on one factor could compensate for a weak showing on

another. Id. Thus, for example, “a very strong showing of irreparable harm” and a showing that

“there is no substantial harm to the non-movant” might permit an injunction even upon “a

correspondingly” less substantial showing of a “likelihood of success” on the merits. Davis v.

Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009). Or, “[a]lternatively, if

substantial harm to the nonmovant is very high and the showing of irreparable harm to the

movant very low, the movant must demonstrate a much greater likelihood of success.” Id.

In Winter, the Supreme Court rejected a rule applied in the Ninth Circuit that permitted a

movant to obtain a preliminary injunction based on a mere “possibility of irreparable harm,” as

long as the movant could “demonstrate[] a strong likelihood of prevailing on the merits.” 555

U.S. at 21 (internal quotation marks omitted). The Supreme Court explained that “the Ninth

Circuit’s ‘possibility’ standard is too lenient” and failed to give sufficient weight to the

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“extraordinary” nature of preliminary relief or to the Supreme Court’s “frequent[]” admonition

that the proponent of preliminary relief must make a clear showing “that irreparable injury is

likely in the absence of an injunction.” Id. at 22 (emphasis in original). Following Winter, the

D.C. Circuit has expressed some doubt about the continuing viability of the sliding scale test, but

has yet to issue a definitive ruling setting the test aside. See Davis, 571 F.3d at 1292; Sherley v.

Sebelius, 644 F.3d 388, 392–93 (D.C. Cir. 2011). In Sherley, for instance, the Court read

“Winter at least to suggest if not to hold that a likelihood of success is an independent, free-

standing requirement for a preliminary injunction.” 644 F.3d at 393 (internal quotation marks

omitted). And in Davis, two judges concurred, explaining in dicta that “under the Supreme

Court’s precedents, a movant cannot obtain a preliminary injunction without showing both a

likelihood of success and a likelihood of irreparable harm, among other things.” Davis, 571 F.3d

at 1296 (Kavanaugh, J., joined by Henderson, J., concurring). But, while strongly signaling the

demise of the sliding scale test, the D.C. Circuit has been clear that it has yet to resolve the issue.

See id. at 1292 (majority opinion). As a result, most district courts in this Circuit have continued

to apply the sliding scale test out of an abundance of caution, at least in cases where the movant

cannot satisfy even the less demanding standard. See, e.g., Jack’s Canoes & Kayaks, LLC v.

Nat’l Park Serv., 933 F. Supp. 2d 58, 76 (D.D.C. 2013).

The Court will do the same here, but with one proviso: It is clear from Winter that a mere

“possibility” of irreparable harm will not suffice. Winter, 555 U.S. at 22. Rather, a showing that

irreparable injury is “likely” is the sine qua non for obtaining a preliminary injunction—it is

what justifies the extraordinary remedy of granting relief before the parties have had the

opportunity fully to develop the evidence and fully to present their respective cases. See

Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (“A

6
movant’s failure to show any irreparable harm is therefore grounds for refusing to issue a

preliminary injunction, even if the other three factors entering the calculus merit such relief.”);

Texas Children’s Hosp. v. Burwell, 76 F. Supp. 3d 224, 241–42 (D.D.C. 2014); Trudeau v. FTC,

384 F. Supp. 2d 281, 296 (D.D.C. 2005). Thus, where a party seeking a preliminary injunction

fails to make the required showing of irreparable injury, the matter is settled, and the Court must

deny the motion. As explained below, that principle is dispositive here. Plaintiffs have failed to

demonstrate that Mohmand or Khadem are likely to suffer irreparable injury in the absence of

injunctive relief, and their motion thus fails at the threshold. But, even if they could clear this

essential hurdle, they would not be entitled to relief because they have not carried their burden of

demonstrating a likelihood of success on the merits or that the balance of hardships and public

interest tip in favor of interim relief.

A. Irreparable Injury

The D.C. Circuit “has set a high standard for irreparable injury.” Chaplaincy of Full

Gospel Churches, 454 F.3d at 297. To demonstrate irreparable harm, “the injury must be both

certain and great; it must be actual and not theoretical,” and the movant carries the burden of

showing that “[t]he injury complained of is of such imminence that there is a clear and present

need for equitable relief to prevent irreparable harm.” Id. (internal quotation marks omitted)

(emphasis in original). By definition, moreover, economic loss that is recoverable in a final

judgment or by any other reasonable means does not constitute irreparable injury. See Wis. Gas

Co. v. Fed. Energy Regulatory Comm’n, 758 F.2d 669, 674 (D.C. Cir. 1985) (per curiam).

Similarly, transient conditions, including those resulting from discrimination in the workplace,

that do not cause an injury eluding later recompense or correction do not constitute irreparable

injury. Rather, the movant must demonstrate that equity justifies immediate relief because, if

7
delayed, it is unlikely that relief will remain available. Plaintiffs have failed to carry this heavy

burden.

1. Plaintiff Mohmand Has Not Demonstrated the Likelihood of an Irreparable Injury

Plaintiff Mohmand asserts three theories of irreparable injury. First, he contends that

“[i]f [he remains] assigned to production without training, it could jeopardize the shows which

he produces.” Dkt. 41 at 4. That injury, however, is not to Mohmand but to the shows he

produces. It is also entirely speculative. Mohmand has offered no competent evidence that his

lack of training has jeopardized any VOA programming. The amended complaint is unverified

and thus not evidence, see Armenian Assembly of Am., Inc. v. Cafesjian, 758 F.3d 265, 284 n.14

(D.C. Cir. 2014) and, in any event, it does not speak to whether Mohmand’s present assignment

is likely to damage the quality of the shows he produces. Moreover, although Mohmand

submitted a declaration on November 10, 2015, after he had been performing his new duties for a

few weeks, he does not identify any misstep or other incident resulting from his lack of training.

See Dkt. 43-1 at 1–5 (Second Mohmand Decl.).

Second, Mohmand contends that his “job, reputation, and his interaction with his

colleagues and the audience, will be irreparably damaged” if he is “forced to do production for

which he has not been fully trained.” Dkt. 41 at 4. Plaintiffs are correct that harm to reputation

can, in certain circumstances, constitute irreparable injury. See Brodie v. U.S. Dep’t of Health

and Human Services, 715 F. Supp. 2d 74, 84 (D.D.C. 2010); Trudeau, 384 F. Supp. 2d at 297.

Indeed, because “[i]njury to reputation and goodwill is not easily measured in monetary terms,”

it is “often viewed as irreparable.” 11A Charles Alan Wright et al., Federal Practice and

Procedure § 2948.1 (3d ed. 2013 & 2015 Supp.). “[A]s with all other forms of irreparable

harm,” however, “the showing of reputational harm must be concrete and corroborated, not

8
merely speculative.” Trudeau, 384 F. Supp. 2d at 297. Conjecture and “vague and unsupported”

assertions of harm are not sufficient. Brodie, 715 F. Supp. 2d at 84. Yet that is all that

Mohmand offers. He fails to identify any embarrassment that has actually occurred while

performing his new duties; he merely speculates that he is likely to make mistakes without

additional training. Dkt. 41 at 4. His assertions, moreover, are uncorroborated. He has not

identified anyone who thinks less of him based on his performance or any evidence about the

quality of the shows that he produces. And based on the current record, there is no basis to

conclude that, even if Mohmand were to make a mistake, his colleagues would blame him rather

than Ibrahim Nasar for that error or that VOA’s listenership would have any reason to attribute

the error to Mohmand.

Third, Mohmand contends that his new duties are taking a toll on his health. Dkt. 43 at 5.

He says that he cannot sleep at night, that his heart rate increases when he thinks about his

responsibilities, and that he suffers from dizzy spells, nausea, and vomiting. Dkt. 43-1 at 4

(Second Mohmand Decl. ¶ 26). As an initial matter, it is unclear how much of this relates to his

current assignment and how much of it is a product of what he perceives, more generally, to be a

hostile work environment—which is not an asserted basis for the motion for preliminary relief.

He notes, for example, that “[i]t has been several years that [he] has been trying [his] best to

resolve this issue, to keep [his] chin up and to believe that somehow this situation will change,”

but it has not changed, and instead has “only became worse.” Id. (Second Mohmand Decl. ¶ 23)

(emphasis added). More importantly, none of Mohmand’s contentions are supported by

evidence offered by a medical expert. Mohmand had every opportunity to offer medical

testimony but declined to do so. The Court does not doubt Mohmand’s assertions that he is

9
under stress, which has resulted in physical manifestations. But, absent some medical testimony,

the Court is not in a position to assess the extent or gravity of those symptoms.

2. Plaintiff Khadem Has Not Demonstrated the Likelihood of an Irreparable Injury

Khadem identifies two potential irreparable harms. First, she argues that she is a highly

regarded radio personality who has lost much of her audience because VOA has failed to assign

her to host talk shows. Under the current schedule, she is assigned to only one talk show, and

her role there is only as a substitute on a show addressing medical issues. Dkt. 41-2 at 1 (First

Khadem Decl. ¶ 4). Khadem asserts that this limited role has caused, and will continue to cause,

“great damage to [her] reputation.” Id. She notes, for example, that on one occasion when she

“was on the air as a substitute, a caller called in to call [her] a ‘spare tire’ for the real journalists.”

Id. She also asserts that, as a substitute, she often lacks sufficient notice to prepare a show of a

quality consistent with her existing reputation. Dkt. 43-1 at 6 (Second Khadem Decl. ¶ 3). And,

more fundamentally, she contends that she has lost her “listening audience” due to prior

scheduling decisions and that the harm to her professional reputation has only “increase[ed]”

under the new schedule because she is “consistently los[ing] [her] listening audience.” Dkt. 43-1

at 7–8 (Second Khadem Decl. ¶ 10).

As Plaintiffs’ counsel acknowledged at oral argument, however, Khadem has not had her

own talk show since 2010. Her point is not that the new schedule is inflicting some new harm

but that the longer she is off the air, the harder it is to maintain trust with her audience. That

contention misunderstands the purpose of a preliminary injunction, which is not to remedy a past

wrong but to prevent a current or imminent irreparable injury from occurring. Thus, to

demonstrate irreparable injury, Khadem must show that the current schedule is causing her a

discrete harm that is concrete, non-speculative, and supported by more than the movant’s own

10
conclusory assertions. Here, Khadem is on the air, but as a newscaster rather than a talk show

host. Dkt. 41-2 at 1 (First Khadem Decl. ¶ 4), 7–8. Moreover, there is no evidence—other than

Khadem’s own speculation—that the current schedule is causing her to lose an audience that she

has, by her own admission, not had since 2010. Because Khadem has not made a clear

showing—or, indeed, any showing at all—that a preliminary injunction is necessary to prevent

the irretrievable loss of listeners whom she has not already lost, her principal claim of irreparable

injury necessarily fails.

Like Mohmand, Khadem also contends that her work conditions are taking a toll on her

health. She asserts that her “mental and physical health ha[ve] been compromised,” that she has

been “left . . . extremely upset” and has “had to leave work in the middle of the day with a break-

out of hives,” and that she is “under extreme and undue stress.” Dkt. 43-1 at 9 (Second Khadem

Decl. ¶¶ 13, 18). Like Mohmand, however, Khadem has failed to support her contention with

any concrete evidence and has failed to identify the extent to which these conditions would be

remedied by granting a preliminary injunction. Indeed, given the fact that Khadem has been

without a talk show since 2010, there is little basis for the Court to conclude that her symptoms

are the result of the new schedule as opposed to the broader allegations she and the other

plaintiffs have made regarding their work environment. In any event, as with Mohmand, absent

evidence offered by a medical expert, the Court is not in a position to assess the extent or gravity

of these symptoms or whether there is a nexus to the interim relief Khadem currently seeks.

* * *

Because neither Mohmand nor Khadem has shown that “there is a clear and present need for

equitable relief to present irreparable harm,” Wisc. Gas Co., 758 F.2d at 674 (internal quotation

marks omitted), and because irreparable injury is the sine qua non to invoke the Court’s

11
equitable power to grant the extraordinary remedy of interim relief, Chaplaincy of Full Gospel

Churches, 454 F.3d at 297, the Court must deny their Motion for a Preliminary Injunction, Dkt.

41. To avoid any uncertainty, however, the Court will also address the remaining factors for

issuance of a preliminary injunction.

B. Likelihood of Success on the Merits

As with the other factors, the party seeking preliminary relief bears the burden of

demonstrating a likelihood of success on the merits. Washington Metro. Area Transit Comm’n v.

Holiday Tours, Inc., 559 F.2d 841, 844 (D.C. Cir. 1977). The Board contends that Plaintiffs’

allegations regarding the recent schedule changes are not properly before the Court because

Plaintiffs have not properly exhausted those claims through the administrative EEO process and

have not pled them in the operative complaint. Dkt. 42 at 3, 5. As the Board correctly notes, the

Supreme Court has held that “[e]ach incident of discrimination and each retaliatory adverse

employment decision constitutes a separate actionable ‘unlawful employment practice.’” Nat’l

R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002). Thus, in general, a plaintiff is not

entitled to sue a federal employer with respect to alleged, specific acts of discrimination or

retaliation that the plaintiff has not timely raised and exhausted in the administrative EEO

process. That rule does not apply, however, to hostile work environment claims because, by

their very nature, those claims “cannot be said to occur on any particular day.” Id. at 115.

Because hostile work environment claims involve “a series of separate acts,” it is possible to

allege that the violation has both “occurred” and is still “occurring.” Id. at 117 (internal

quotation marks omitted). In that event, all that the plaintiff need do is timely exhaust EEO

remedies with respect to one act in the series.

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 Before Morgan, moreover, the D.C. Circuit applied a rule that permitted a plaintiff to

pursue an unexhausted claim if that claim was “like or reasonably related to the allegations of the

[exhausted] charge and grow[s] out of such allegations.” Park v. Howard, 71 F.3d 904, 907

(D.C. Cir. 1995) (internal quotation marks omitted). Under this test, the plaintiff is required,

“[a]t a minimum,” to show that his or her claim arose “from ‘the administrative investigation that

[could] reasonably be expected to follow the [administrative] charge of discrimination.’” Id.

(quoting Chisholm v. USPS, 665 F.2d 482, 491 (4th Cir. 1981)). Most district court decisions in

this circuit have concluded that this rule did not survive Morgan, see, e.g., Rashad v. Wash.

Metro. Area Transit. Auth., 945 F. Supp. 2d 152, 166 (D.D.C. 2013) (collecting cases that

support this majority rule), although a handful of decisions have continued to apply the

“reasonably related” rule, see Mount v. Johnson, 36 F. Supp. 3d 74, 85 (D.D.C. 2014) (collecting

cases that support the minority rule), and the D.C. Circuit has yet to resolve the issue, see Payne

v. Salazar, 619 F.3d 56, 65 (D.C. Cir. 2010).

Notwithstanding the Supreme Court’s recognition in Morgan of the continuing nature of

hostile work environment claims, and even assuming that the “reasonably related” rule remains

good law after Morgan, the Court cannot conclude on the current record that Plaintiffs are likely

to succeed on the merits. To start, there is at least a substantial question whether Mohmand and

Khadem have met the exhaustion requirement as to any claim asserted in the litigation. As

Morgan held, a plaintiff pursuing a hostile work environment claim must timely exhaust EEO

proceedings with respect to at least one “act contributing to the claim.” 536 U.S. at 117.

Likewise, the “reasonably related” rule required timely exhaustion of the “related” claim. Park,

71 F.3d at 907. Here, however, the Board has raised a substantial question whether Mohmand or

Khadem brought any relevant act of alleged discrimination to the attention of an EEO counselor

13
within 45 days of the “matter alleged,” as required by the governing regulations, see 29 C.F.R. §

1614.105(a)(1). Both Mohmand and Khadem initiated the EEO process by contacting the EEO

counselor for the Board on October 11, 2012. Dkt. 30 at 2, 4. Both also contend that they have

been subjected to ongoing discrimination going back to early 2010. See, e.g., Dkt. 30-2 at 32

(Mohmand); id. at 99 (Khadem). To date, however, neither has submitted any evidence

demonstrating that they brought a discrete discriminatory act occurring within the 45 days of

October 11, 2012, to the attention of the EEO counselor. 2 Although timely exhaustion under

Title VII and the ADEA is an affirmative defense for which the Board carries the burden of

proof, Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997), here, the Board has come

forward with evidence sufficient to satisfy its burden. Absent some effort by Plaintiffs

convincingly to assert equitable tolling, see id., or otherwise to explain why the government is

not entitled to summary judgment, Plaintiffs cannot show that they are likely to prevail on the

merits.

Even if Plaintiffs can overcome the Board’s exhaustion defense—which is currently

pending before the Court in the Board’s motion for summary judgment and which the Court will

refrain from deciding at this time—Plaintiffs still have not, on the present record, carried their

burden of showing that they are likely to succeed on the merits. Plaintiffs’ argument on the

merits is both brief and unsupported by competent evidence. Dkt. 41 at 2–4. Most notably, they

2
In support of its Motion to Dismiss or, in the Alternative, for Summary Judgment, the Board
did submit notes from the EEO counselor indicating that Khadem complained that “others [took]
credit for her work in the logs as recently as late November 2012 or early December 2012,” Dkt.
30-2 at 75, but those notes do not identify who those “others” were or otherwise provide a basis
for the Court to assess whether this accusation is sufficient to satisfy the timeliness requirement
discussed above. Similarly, documents generated by the EEO counselor suggest that both
Mohmand and Khadem complained about “ongoing” discrimination, see id. at 32, 99, but that
vague statement fails to satisfy the “discrete” act requirement of Morgan or the “reasonably
related” rule, to the extent applicable.
14
assert that their “showing of probable success on the merits is fully detailed in the Amended

Complaint,” id. at 2, but the amended complaint is unverified and, accordingly, is not evidence,

see Cafesjian, 758 F.3d at 284 n.14. Pleading facts does not make them true; the question is

whether Plaintiffs will be able to prove those facts, not whether they have alleged them. For

similar reasons, Plaintiffs’ reliance on allegations of discrimination made by Plaintiffs’ counsel

in email correspondence with the Board, see Dkt. 41-2 at 8–21, and unsupported assertions made

in Plaintiff’s motion, see Dkt. 41 at 2–4, do not amount to evidence of discrimination. And,

finally, the Mohmand and Khadem declarations submitted in support of Plaintiffs’ motion, see

Dkt. 41-2 at 1–4, Dkt. 43-1 at 1–10, contain only conclusory allegations of discrimination—e.g.,

the new schedule “is targeting the seniors,” and Ibrahim Nasar “later harassed me for my lack of

training,” Dkt. 41-2 at 3–4 (First Mohmand Decl. ¶¶ 6, 7)—that do little to carry Plaintiffs’

burden, particularly when considered in light of the Board’s reliance on the Ibrahim Nasar

declaration, which asserts that the current assignments were made for legitimate,

nondiscriminatory reasons, Dkt. 42-2 at 1–2.

It bears emphasis that the Court does not express a view on the ultimate merit (or lack

thereof) of Plaintiffs’ claims, but merely concludes that, on the limited record currently before it,

Plaintiffs have yet to carry their burden of demonstrating a likelihood of success on the merits.

Accordingly, this factor also weighs against issuance of a preliminary injunction.

C. The Balance of Equities and the Public Interest Both Weigh Against Granting
Preliminary Relief

Finally, the Court also concludes that neither the balance of equities nor the public

interest weigh in favor of granting preliminary relief.

As to the balance of equities, the Board correctly notes that the work schedule at issue

represents a zero-sum game: A decision to give Khadem a talk show or to switch Mohmand’s

15
production duties for an editorial role “would potentially impact third parties whose schedules

would need to be adjusted to accommodate the preferences of Plaintiffs.” Dkt. 42 at 7. It is true

that a court may “bump” workers who have taken a position of a co-worker who was wrongfully

denied that position. See Lander v. Lujan, 888 F.2d 153, 155–56 (D.C. Cir. 1989). But the

authority to grant that type of extraordinary relief is discretionary, id., and it requires that the

Court consider all the relevant circumstances and alternative remedies. See also 42 U.S.C. §

2000e-5(g)(1) (allowing courts to grant “any . . . equitable relief” it “deems appropriate”); 29

U.S.C. § 626 (allowing courts “to grant such legal or equitable relief as may be appropriate”). In

the present context, however, the Court lacks any information regarding the VOA staff who

currently occupy the roles that Mohmand and Khadem seek, how those individuals would be

affected, or how small changes in the schedule might have ripple effects, requiring a series of

changes throughout the entire schedule. If the Court were to grant a preliminary injunction but

Plaintiffs ultimately did not prevail, moreover, yet another series of changes might be required,

as those removed from their existing positions they may have preferred would likely contend that

the previous schedule should be restored.

Such a series of potential changes would not only affect the interests of third parties, but

would be highly disruptive to the Pashto Service on multiple levels. Most importantly, it would

substitute a court-ordered schedule for the editorial choices made by those charged with

overseeing the content of what is an inescapably creative medium. It would place the Court, for

example, in the role of deciding that Khadem should have a talk show, without regard to

management’s views about the popularity of other hosts, Khadem’s appeal to listeners, and the

content that Khadem would then decide to put on the air. Even following a final judgment, that

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is an extraordinary remedy to request from a court—and, absent compelling reason, it is not one

that is suited for preliminary relief.

For similar reasons, the public interest militates against preliminary relief affecting the

schedule and assignments for the Pashto Service. As explained, the Court would be hesitant

under any circumstances to order relief that affects the content of news broadcasts, political

commentary, and related talk shows—even where, as here, that content constitutes government

speech that is not protected by the First Amendment. Those types of judgments lie far from the

traditional role and competence of the judiciary. If Plaintiffs ultimately prevail, the Court will

need to consider what relief is appropriate. For present purposes, however, the Court is

convinced that it is not in the public interest to insert itself into the editorial process based on

what, at this point, amounts to little more than allegations of discrimination.

III. CONCLUSION

For the reasons stated above, Plaintiffs’ Motion for Preliminary Injunction, Dkt. 41, is

hereby DENIED.

SO ORDERED.

/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge

Date: February 8, 2016

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