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Brodetski v. Duffey

March 28, 2001

IGOR BRODETSKI, PLAINTIFF,
v.
JOSEPH DUFFEY, DIRECTOR, USIA AND VOICE OF AMERICA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Richard W. Roberts United States District Judge

MEMORANDUM OPINION

Plaintiff Igor Brodetski, *fn1 an employee with the Russian Branch of Voice of America ("VOA"), a division of the United States Information Agency ("USIA"), brought this claim against defendants for workplace retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2, 2000e-3 (1994), as amended ("Title VII"). He alleged five separate incidents that he believes were in retaliation for his testimony at a colleague's equal employment opportunity ("EEO") hearing in 1989 and for his continued filings against defendants with the USIA Office of Civil Rights ("OCR") and the Equal Employment Opportunity Commission ("EEOC"). Defendants moved to dismiss or, in the alternative, for summary judgment. Because plaintiff has failed to establish a prima facie case of retaliation under Title VII, defendants' motion for summary judgment will be granted.

BACKGROUND

Brodetski has been employed as an International Radio Broadcaster with VOA for at least thirteen years. (Compl. at 1.) He began to complain of retaliation by defendants after he had participated in a colleague's EEO proceeding against VOA in 1989. (Defs.' Mem. in Supp. of Defs.' Mot. Dismiss and/or Summ. J. ("Defs.' Mem.") at 3.) At the time plaintiff filed this claim in early 1998, he had submitted over fifty separate complaints with USIA'S OCR and had appealed many of the complaints to the EEOC after they were dismissed by OCR. (Compl. at 2.) Almost all of plaintiff's complaints alleged retaliation by defendants for his prior EEO activities. (Id.) Only five of these complaints are at issue in this case. *fn2

I. Plaintiff's Five Letters to OCR

Plaintiff sent five letters to OCR during late December 1996 and early January 1997, each describing an individual episode of what he alleged was an act of retaliation. (Compl. at 1.) In his first letter, dated December 12, 1996, plaintiff complained that the News Desk Chief, Martha Wexler, sent him an insulting memorandum requesting that he maintain "civilized behavior and show common courtesy to [his] colleagues." (Compl. at Ex. 1.) While Wexler based her admonition on an episode during which plaintiff allegedly insulted a colleague, plaintiff claimed that the memorandum was in direct retaliation for his internal EEO complaints, an editorial of his published in the Washington Times, and a letter he wrote to the House Foreign Relations Committee, all of which detailed alleged mismanagement of the Russian Branch at VOA. (Id.)

In his second letter, dated December 22, 1996, plaintiff protested another memorandum from Wexler that outlined the time and procedure for broadcast rehearsals. (Compl. at Ex. 2.) In the memo, Wexler asked plaintiff to "please check in with [the rehearsal leader, Lucien Ficks] at [specified] times" because Ficks "conducts these rehearsals." (Id.) Plaintiff complained to Wexler that the rehearsals were disorganized and unproductive. He also complained that he had not been informed earlier that Lucien Ficks conducted the rehearsals. Plaintiff apparently found this to be particularly improper, because, as he stated in his response to Wexler, putting Ficks in charge of rehearsals "smells of blackmail and provocation" as plaintiff had already filed "FIVE OCR complaints against [Ficks]." (Id.)

Plaintiff's third letter, dated December 25, 1996, concerned alleged misallocation of work assignments. (Compl. at Ex. 3.) Plaintiff maintained that he translated seventeen items and read a forty minute newscast in one day while another writer wrote only eight items. Plaintiff alleged that the other writer arrived late to work and read the newspaper, while plaintiff received an excessive amount of work, thus establishing a "clear case of unequal workload distribution [and] treatment." (Id.)

In his fourth letter, dated December 26, 1996, plaintiff complained that defendants distributed assignments unevenly, such that work that used to be performed by four to six writers was then performed by two. (Compl. at Ex. 4.) Plaintiff alleged that he was "repeatedly called to read the news and voice scripts" while co-workers were not. (Id.) He claimed to have been burdened by last minute requests from management and expected to substitute for absent colleagues. Plaintiff argued that this pattern of "deliberate overloading" was part of defendants' retaliation against him for his EEO activities. (Id.)

Plaintiff's fifth letter, dated January 8, 1997, stated that he was required to staff the news desk for over four hours alone. (Compl. at Ex. 5.) During the four hours, he said, plaintiff was required to perform duties normally assigned to two people or more. Plaintiff alleged that this work assignment overload was further evidence of defendants' retaliation against him. (Id.)

II. EEO Processing of Plaintiff's Letters

Upon receiving plaintiff's letters, the OCR assigned an EEO counselor, Janice Roane, to consult with plaintiff about these five episodes, in accordance with the federal regulations for processing EEO complaints. See 29 C.F.R. §§ 1614.101-110 (West 2000); (Defs.' Mem. at Ex. B). After Ms. Roane determined that she was "unable to resolve the issues/allegations" detailed in plaintiff's letters, the OCR issued five separate "Notice[s] of Right to File Formal Complaint" for each of the original letters that plaintiff submitted. (Defs.' Mem. Ex. A.) Each notice informed plaintiff that, "because the matter . . . has not been resolved to your satisfaction, you are now entitled to file a discrimination complaint . . . in WRITING, signed, and filed . . . WITHIN 15 CALENDER DAYS AFTER RECEIPT OF THIS NOTICE." (Id.) The notices were hand-delivered to plaintiff on March 14, 1997, and plaintiff signed the notices on March 15, 1997. (Defs.' Mem. at 3.)

The OCR dismissed the five complaints at issue because plaintiff failed to file a formal complaint with the agency within the fifteen days allotted by the EEO procedures established in 29 C.F.R. § 1614.106. (Defs.' Mem. at 3-4.) Plaintiff argued that the OCR unfairly and prematurely dismissed his five complaints and has written to the OCR repeatedly to have them reopened. (Defs.' Mem. Exs. B, C.) The OCR contended that the dismissal was entirely proper. (Id.) As a result, plaintiff brought the instant action against defendants in this Court for de novo review.

DISCUSSION

Defendants moved to dismiss plaintiff's Title VII retaliation claims pursuant to Federal Rule of Civil Procedure 12(b)(6), or, in the alternative, to obtain summary judgment pursuant to Federal Rule of Civil Procedure 56. I have considered the parties' documents submitted outside of their respective pleadings. Accordingly, defendants' motion will be considered as one for summary judgment under Fed. R. Civ. P. 56. See ...


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