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Wada v. Tomlinson

May 9, 2007

HADIZA I. WADA, PLAINTIFF,
v.
KENNETH Y. TOMLINSON, DEFENDANT.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Pending before the Court is Defendant's Motion for Summary Judgment. Plaintiff, a former employee of the Broadcasting Board of Governors ("BBG") -- specifically of the Hausa Service of the Africa Division of Voice of America ("VOA") -- brings the above-captioned action against Defendant Kenneth Y. Tomlinson, in his official capacity as Chair of the BBG, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as amended ("Title VII"). Plaintiff's Complaint alleges that Defendant discriminated against her based on her race, sex, and religion by not selecting her for a supervisory position (Count I), refusing to reclassify Plaintiff's position from a GS-12 to a GS-13 (Count II), and subjecting her to disparate discipline (Count III). In addition, Plaintiff alleges that she was subject to retaliatory discipline as a result of her prior use of the Equal Employment Opportunity ("EEO") process (Count IV), and that she was subject to discriminatory and retaliatory harassment that amounted to a hostile work environment (Count V). Furthermore, by Order dated October 14, 2005, the Court effectively allowed Plaintiff to amend her Complaint to add allegations of discrimination and retaliation relating to the termination of her employment.

Defendant has moved for summary judgment as to all Counts included in Plaintiff's Complaint as well as Plaintiff's claim that her termination constituted discrimination and retaliation. Plaintiff opposes Defendant's motion for summary judgment, which became ripe on March 19, 2007, when Defendant filed its reply memorandum in further support of its motion for summary judgment. Thereafter, on April 4, 2007, Plaintiff filed a motion asking that the Court disregard as untimely Defendant's motion for summary judgment and reply. Upon a searching consideration of the filings currently before the Court, the attached exhibits, the relevant case law, and the entire record herein, the Court shall deny Plaintiff's motion asking the Court to disregard Defendant's motion for summary judgment and reply, and shall grant Defendant's motion for summary judgment in its entirety.

I. BACKGROUND

The Court begins its discussion of the facts by noting that this Court strictly adheres to the text of Local Civil Rule 56.1 (identical to Local Civil Rule 7(h) (formerly Rule 7.1(h)). The local rules for summary judgment "assist[] the district court to maintain docket control and to decide motions for summary judgment efficiently and effectively." Jackson v. Finnegan, Henderson, Farabow, Garret & Dunner, 101 F.3d 145, 150 (D.C. Cir. 1996). "Requiring strict compliance with the local rule is justified both by the nature of summary judgment and by the rule's purposes. . . . The procedure contemplated by the rule thus isolates the facts that the parties assert are material, distinguishes disputed from undisputed facts, and identifies the pertinent parts of the record." Id. (quoting Gardels v. CIA, 637 F.2d 770, 773 (D.C. Cir. 1980)). "[A] district court should not be obliged to sift through hundreds of pages of depositions, affidavits, and interrogatories in order to make [its] own analysis and determination of what may, or may not, be a genuine issue of material fact." Id. (quoting Twist v. Meese, 854 F.2d 1421, 1425 (D.C. Cir. 1988)).

The Court further notes that, in the Court's September 19, 2006 Scheduling and Procedures Order, the parties were advised that "[t]he Court strictly adheres to the dictates of Local Civil Rules 7(h) and 56.1 and may strike pleadings not in conformity with these rules." Wada v. Tomlinson, Civil Action No. 03-1488, Order (D.D.C. September 19, 2006 (citing Burke v. Gould, 286 F.3d 513, 519 (D.C. Cir. 2002)). The Court's Scheduling and Procedures Order also specifically instructed Plaintiff that she should respond to each paragraph in Defendant's statement of material facts with "a correspondingly numbered paragraph, indicating whether that paragraph is admitted or denied," including any information relevant to her response in that paragraph, and furnishing precise citations to the portions of the record on which she relied. Id.

In her Response to Issues of Material Facts (hereinafter "Plaintiff's Statement"), Plaintiff complies with the Court's Scheduling and Procedures Order, insofar as she responds to each paragraph of Defendant's Statement of Material Facts (hereinafter "Defendant's Statement") with a correspondingly numbered paragraph. However, many of Plaintiff's responses consist primarily of argument, rather than evidence demonstrating the existence of a genuine issue of material fact. Moreover, in her Statement, Plaintiff cites broadly to her "exhibit," which is in turn divided into sections relating to each of Defendant's numbered factual assertions. Many of these sections include upwards of fifty pages of documents, and Plaintiff does not specify the particular pages of the section on which she relies. The Court has nevertheless undertaken a review of the record evidence submitted by Plaintiff in order to determine whether genuine issues of material fact exist.

As the Court's Scheduling and Procedures Order set forth, pursuant to Local Civil Rule 56.1, in resolving the present summary judgment motion, this Court "assumes that facts identified by the moving party in the statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion." LCvR 56.1; 7(h). In accordance with this Rule, the Court has treated as admitted all facts alleged by Defendant in its Statement and not specifically contradicted by Plaintiff in her Statement. The Court has also considered the facts adduced by Plaintiff in her Statement, to the extent that they are supported by record evidence, and cites directly to the record, where appropriate, to provide additional information not covered in either of the parties' statements.

A. The Parties

Pro se Plaintiff, Hadiza Wada, was born in Nigeria and became a naturalized United States citizen in 2000. Compl. ¶ 8.*fn1 Plaintiff describes herself as a female member of the Islamic faith. Id. ¶¶ 4, 8. At the time she filed her Complaint, Plaintiff was an employee of the Broadcasting Board of Governors ("BBG") in the Hausa Service of the Africa Division of Voice of America ("VOA"), at its headquarters in Washington, D.C. Id. ¶ 3. BBG is an agency of the United States federal government, and VOA is an international broadcast service, which broadcasts on radio and television in 44 languages. Id. ¶ 5; BBG Home Page, http://www.bbg.gov/bbg_aboutus.cfm.. The Hausa Service is one of five (5) language services and two (2) branches in the Africa Division of VOA. 9/27/02 Dillard Decl. ¶ 6.*fn2

Plaintiff was hired by VOA in 1986 as an International Radio Broadcaster (IRB) at the GG-11 grade level, was promoted to the GG-12 grade level in 1991, and was converted to the GS-12 grade in 2000. Compl. ¶ 9. Plaintiff remained a GS-12 IRB until her termination by VOA, which was effective September 10, 2004. Def.'s Stmt. ¶ 69.

B. Plaintiff's Non-Selection as Hausa Service Chief

In approximately June 2000, the then-Hausa Service Chief, Rashida Hasan, was reassigned. Id. ¶ 1. The Service Chief position would remain vacant until August 2001. Id. During that time, Africa Division Director Gwendolyn Dillard assigned two VOA employees -- Diane Butts and Negussie Mengesha -- to take on supervisory responsibilities for the Hausa Service. Id. ¶ 2.*fn3 On or about July 1, 2000, Plaintiff was officially given a new position description of "Senior Editor" in the Hausa Service. Id. ¶ 3; Def.'s Non-Select. Exs. at 1-6 (7/1/00 Request for Personnel Action). In addition to the ordinary duties of an IRB with editorial responsibilities, Plaintiff's duties as Senior Editor included, "[i]n absence of the Service Chief, attends daily Division meetings, and with the assistance of other Service Chiefs and the Africa Division Director, assumes other responsibilities representing the Service," as well as "[p]rovides input to annual performance evaluation of staffers." Id. at 3. However, as Defendant points out, Plaintiff's new position description had no effect on her grade or pay because Plaintiff remained an IRB GS-12, step 7. Id. at 1. Furthermore, according to the relevant Request for Personnel Action form, the position of Senior Editor was neither supervisory nor managerial. Id. at 2 box 11.

For her part, Plaintiff maintains that she performed supervisory duties on the Hausa Service for extended periods of time, specifically between 1994 and 1998, and between 2000 and 2001, and that she had been a Senior Editor since 1994. Pl.'s Stmt. ¶¶ 2-3. In support of this assertion, Plaintiff points to documents from the 1990s in which Plaintiff is referred to as "senior night shift editor" and described as "one of the senior editors." See Pl.'s Exs. for Issue No. 2. Plaintiff also disputes Defendant's assertion that her Senior Editor position was not supervisory or managerial, Def.'s Stmt. ¶ 5, noting that her 2000 position description indicates that she could "assume other responsibilities representing the Service," Pl.'s Stmt. ¶ 5. Nevertheless, it is uncontroverted that Plaintiff was not officially given the position of Senior Editor until July 2000 and that the position of Senior Editor was identified as neither supervisory nor managerial in the relevant appointment paperwork. Def.'s Stmt. ¶ 3; Def.'s Non-Select. Exs. at 1-6 (7/1/00 Request for Personnel Action). Moreover, in his September 26, 2002 Declaration, Mr. Mengesha averred that Plaintiff "never had any supervisory responsibilities. She was not authorized to rate employees, sign time cards or authorize leave." Def.'s Non-Select. Exs. at 87 (9/26/02 Mengesha Decl.) ¶ 6. Indeed, during her deposition in this matter, Plaintiff testified that prior to Ms. Hasan's appointment in 1998, Plaintiff had managerial responsibilities but did not have supervisory responsibilities such as time attendance sheets, annual leave or performance evaluations. 12/3/04 Wada Dep. at 33:5-11. Plaintiff further testified that, while Ms. Butts oversaw the Hausa Service, Plaintiff ran some division meetings and Ms. Butts handled "bigger issues, that may be managerial or involving discipline." Id. at 76:3-11. As such, the evidence in the record supports Defendant's assertions that Plaintiff became Senior Editor in 2000 and that, while this position entailed additional responsibilities, Plaintiff did not perform supervisory duties between 2000 and 2001 in the absence of a Hausa Service Chief.

On July 3, 2000, the BBG announced job vacancy No. PA-00-73 to fill the Hausa Service Chief Position (Supervisory International Radio Broadcaster GS-13), with a closing date of July 31, 2000. Def.'s Stmt. ¶ 7; Def.'s Non-Select. Exs. at 8 (7/3/00 Announcement). Ms. Dillard was the selecting official for the position. 9/27/02 Dillard Decl. ¶ 14. Plaintiff applied for the Service Chief position, Def.'s Stmt. ¶ 8; Compl. ¶ 13, but was not selected for the position, which was re-announced as vacancy No. PA-00-102 on August 21, 2000 and listed as "open until filled." Def.'s Stmt. ¶ 14; Def.'s Non-Select. Exs. at 12 (8/21/00 Announcement). Ms. Dillard avers that the "reason for the change was to increase the applicant base and secure the widest possible pool of outstanding candidates." 9/27/02 Dillard Decl. ¶ 16.

Both vacancy announcements included identical requirements for the position: (1) "Demonstrated potential to lead and supervise a professional staff including the ability to apply EEO principles - MANDATORY;" (2) "Ability to plan and coordinate multi-faceted programming, to implement radio programming and production innovations, and to exploit new broadcast technologies;" (3) "Professional knowledge of broadcast journalistic writing, editing principles and production techniques and skill in applying these in practice;" (4) Understanding of the foreign and domestic policies of the U.S.;" (5) "Thorough familiarity with and understanding of the political, economic, historical and cultural realities of Nigeria and other Hausa speaking areas of Africa;" and (6) "Ability to speak and read in the Hausa language -DESIRABLE." Def.'s Non-Select. Exs. at 8 (7/3/00 Announcement); id. at 12 (8/21/00 Announcement). In addition, Ms. Dillard avers that in filling the Hausa Service Chief position, she was specifically looking for a candidate who demonstrated: (1) managerial skills and the ability to work collegially with others; (2) team building skills; (3) understanding of professional journalism practices, including investigative journalism, and a sensitivity to the media climate in Africa; (4) the ability to help the Hausa staff develop new broadcasting skills; (5) fluency in English and Hausa and ability to articulately represent the Hausa Service; (6) current and extensive understanding of Nigeria, as well as United States foreign policy; and (7) ability to carry out Ms. Dillard's directives. 9/27/02 Dillard Decl. ¶ 17.

Ms. Dillard further avers that, as of the time of the vacancy announcements, "a history of contention permeated the Hausa Service due in some measure to the conflicts existing within the target regions in Africa. This ha[d] led to a disintegration of the team effort within the Service and many staffers ha[d] split into 'warring camps.'" Id. ¶ 18. As a result, Ms. Dillard asserts, in filling the Hausa Service Chief position, she "was looking for a person who had no involvement in these prior conflicts so that a fresh perspective could be brought into the Service." Id. Ms. Dillard's description of the tensions within the Hausa Service at the time are supported by the documentary evidence in this case. On June 14, 2000, Ms. Dillard received an e-mail from a Hausa staff member with the subject "Please intervene directly in the Hausa Service," which stated in relevant part:

It is with humility and respect that I write to you to ask you to please intervene directly in the Hausa service before things completely reach a crises [sic] level. . .

I have the right to be listen [sic] to and as a staff of this service asking for a general meeting is not out of the ordinary. For someone to use your name to refuse a general meeting is not fair to you or to the other staff . . . . But already some of us are bent on creating problems for you and for the rest of us . . . . Please Ms. Dillard use your good offices to bring sanity to this chaos in the Hausa service. . . .

Def.'s Non-Select. Exs. at 7 (6/14/00 e-mail from S. Kura to G. Dillard); Def.'s Stmt. ¶ 6.

The record evidence also demonstrates that Plaintiff was directly involved in the ongoing disputes within the Hausa Service. On August 5, 2000, Ms. Dillard was copied on an e-mail from the same Hausa staff member, written in response to an e-mail from Plaintiff asking why a program contained dead air, which stated: you did not do your technology program and [we] had to scramble to fill up the entire back half with something emergency . . . . You must also forget how sometimes you are late to the studio and another staff had to open the show for you . . . . You also forgot when you recently leave [sic] the office for 4-5 hours when you are the duty editor . . . But since we are not scheming to be the chief through whatever means, we never report you on that . . . . As late as last two weeks [we] had to complain to acting supervisor Negussie Mengesha about one such instance when you were the editor but was not around up to 4:00 pm . . . . If you would concentrate on your specified job as an editor and stop running to personnel and your 'friends' in the union to get help to position yourself for the job of chief, things would be smoother in this service.

Def.'s Non-Select. Exs. at 9-10 (8/5/00 e-mail from S. Kura); Def.'s Stmt. ¶ 10. In addition, on September 7, 2000, Plaintiff engaged in a e-mail exchange with another Hausa Service staff member in which Plaintiff and the other staff member accused each other of causing mistakes in VOA's coverage of President William J. Clinton's visit to the Hausa Service's target areas in Africa. See Def.'s Non-Select. Exs. at 13-16. Ms. Dillard was copied on the e-mail exchange, and responded by rebuking Plaintiff and the other staffer, stating:

I understand the substance of your discussion but the tone of it is unacceptable. In any extended live coverage of a major event it is normal the correspondent and the Washington office have misunderstandings about what is filed and what is used.

That discussion should be factual, ask for clarification of what happened and be phrased in tones of respect between colleagues. Your two notes moved quickly from raising questions into personal accusations, name calling, and impugning motives. This is not how we work in this division. It is not the sign of people who believe they are suited for higher grades and responsibilities.

Id. at 13 (9/7/00 e-mail from G. Dillard); Def.'s Stmt. ¶ 15. Plaintiff responded to Ms. Dillard's e-mail by stating that she was "amazed at your reference to it as something between us -- how can anyone possibly miss the importance of the visit to our target area by THE UNITED STATES PRESIDENT HIMSELF. Do not try to make it personal again please. It will not work." Def.'s Non-Select. Exs. at 13 (9/7/00 e-mail from H. Wada); Def.'s Stmt. ¶ 16.

On September 8, 2000, Ms. Dillard forwarded the entire e-mail exchange -- including her e-mail to Plaintiff and the other staffer and Plaintiff's response -- to Myrna Whitworth, VOA Program Director, and Mike Zeitlin, VOA Chief of Staff. Def.'s Non-Select. Exs. at 13 (9/8/00 e-mail from G. Dillard); Def.'s Stmt. ¶ 20. Ms. Dillard's forwarding note read:

I'm forwarding the two notes [Plaintiff] sent (just two, although there have been many more) within 24 hours of her return this week to give you a sense of her interaction with the service and why her becoming chief or even acting chief is not an option. Although the service has been doing remarkably well . . . they made the most progress when [Plaintiff] was gone. She has an anger and simmering confrontation with members of the service that just doesn't go away.

Id.

Furthermore, on September 11, 2000, Ms. Dillard was copied on an e-mail string in which a Hausa Service staff member wrote:

EFFECTIVE IMMEDIATELY, I WILL NOT ABIDE BY ANYTHING HADIZA DIRECTS IN THE HAUSA SERVICE UNTIL I RECEIVE A WRITTEN CONFIRMATION FROM THE DIRECTOR OF THE AFRICAN SERVICE OF THE VOA, GWEN DILLARD, INDICATING HADIZA'S APPOINTMENT, AUTHORIZING HER TO DO SO. . . . A SITUATION IN WHICH SERVAL PEOPLE ARE DIRECTING THE AFFAIRS OF THIS SERVICE AT THE SAME TIME, UNDER THE GUISE OF BEING AN UNOFFICIAL "ACTING CHIEF" IS UNHEALTHY, CONFUSING, AND DOWNRIGHT UNPROFESSIONAL. . . .

Def.'s Non-Select. Exs. at 17-18 (9/11/00 e-mail exchange); Def.'s Stmt. ¶ 17. Another staffer responded to the first e-mail by stating:

I write to express my agreement with [the first staffer] . . . I'm pleading with whoever is responsible to please intervene in good times [sic] to save not only the sanity and orderliness we have seen during Diane Butts [sic] tenure as the person "in-charge here, but also to bring the Hausa service from its wilderness.

Whenever we work together we always reach a consensus . . . Now suddenly, since [Plaintiff's] return we started with yet another problem. . . .we need someone to work with us who will understand our problems and predicament. Someone neutral, someone who is not part to the problems of the past. Someone who has good management experience. Just like Ms. Butts.

Def.'s Non-Select. Exs. at 17; Def.'s Stmt. ¶ 18.

Plaintiff does not dispute that these e-mails were sent or that Ms. Dillard was copied on the various e-mails. See Pl.'s Stmt. ¶¶ 6, 10, 15-18. Instead, Plaintiff defends her participation in the various e-mail exchanges. Id. In addition, Plaintiff asserts that the e-mails sent by various Hausa Service staffers should not be relied upon because the staffers had been previously found to have "incit[ed] and stirr[ed] up problems in Hausa Service including making false accusations without supporting facts against" Ms. Hasan, id. ¶ 6 (emphasis in original), and were reprimanded for their involvement in circulating a petition advocating Ms. Hasan's removal, id. ¶¶ 6, 10. Plaintiff further suggests that one of the staffer's e-mails are not credible because he was also an applicant for the Hausa Service Chief position, and because he was later found to have misused a government credit card. Id. ¶ 17. However, regardless of whether the e-mails sent by other Hausa staffers are accurate accounts of Plaintiff's behavior, they nevertheless corroborate Ms. Dillard's assertion that significant conflicts existed within the Hausa Service and that Plaintiff was directly involved in those conflicts. Furthermore, Plaintiff's own e-mails, in and of themselves, constitute evidence of her involvement in the ongoing conflicts within the Hausa Service.

The record evidence also reveals another issue involving Plaintiff during the period when the Hausa Service Chief position was vacant. On August 17, 2000, Plaintiff sent Ms. Dillard an e-mail regarding Plaintiff's efforts to obtain press credentials for President Clinton's visit to Nigeria on August 25-27, 2000. Def.'s Non-Select. Exs. at 11 (8/17/00 e-mail from H. Wada); Def.'s Stmt. ¶ 11. In her e-mail, Plaintiff stated, "[a]mong information they need to process the request is, what is my designation (title). What better opportunity can we get as a service than this to close the chapter on the supervisory position. The position has been closed since July 31st." Id. Ms. Dillard responded by telling Plaintiff that her "designation and title [was] Senior Editor in the Hausa service" and that the "posting for Hausa chief did not close on July 31. It remains open until filled." Def.'s Non-Select. Exs. at 11 (8/17/00 e-mail from G. Dillard); Def.'s Stmt. ¶ 12. Ms. Dillard further stated:

I have also noticed some inaccuracies in the Hausa webpage. Your [sic] are referred to in the page as the Managing Editor/Acting chief of the service. This is incorrect. You are the Senior Editor of the service. In your message on the webpage you stated that you were the Deputy Chief of the service until June. This is not correct. You were the Senior Editor of the service and continue to be.

Please make the necessary corrections on your webpage. . .

Id. Plaintiff's response to Ms. Dillard's e-mail was, "Time is on my side Ms. Dillard. I have never for a moment doubted by abilities. I have never backed down from a position I take with full knowledge of what is required of me. I am ready. I will take the appropriate steps, the appropriate way." Def.'s Non-Select. Exs. at 11 (8/17/00 e-mail from H. Wada); Def.'s Stmt. ¶ 13. Again, Plaintiff does not dispute that these e-mails were sent, but rather defends her own conduct. See Pl.'s Stmt. ¶¶ 11-13. Furthermore, Plaintiff asserts that Ms. Dillard orally "conferred Supervisory responsibilities [on Plaintiff] including scheduling and signing leave statements, and familiarizing herself with writing performance appraisals." Pl.'s Stmt. ¶ 12. Plaintiff offers only her own deposition testimony in support of this assertion, see Pl.'s Exs. for Issue No. 12, and Plaintiff's testimony as to Ms. Dillard's alleged oral representations is, of course, impermissible hearsay evidence. In any event, even if a factual question exists as to whether Ms. Dillard orally conferred supervisory responsibilities on Plaintiff at some point in time, Plaintiff cannot controvert the documentary evidence that Ms. Dillard conveyed to Plaintiff that Plaintiff had improperly designated herself as Managing Editor, Acting Chief, and/or Deputy Chief on the Hausa web page and asked Plaintiff to correct the web page descriptions. Therefore, it is clear that as of the time of Ms. Dillard's e-mail to Plaintiff, Plaintiff was not authorized to act as Acting Hausa Service Chief.

Plaintiff was one of three employees listed on a September 13, 2000 certificate of internal status candidates eligible for promotion to the GS-13 Hausa Service Chief position; however, Ms. Dillard returned the certificate without selecting any of the internal candidates. Def.'s Non-Select. Exs. at 19 (9/13/00 Certificate, including notation "Returned by G. Dillard, No Selection, Sep. 26, 2000); Def.'s Stmt. ¶ 19. Ms. Dillard avers that she did not interview any of the internal candidates because she had observed them all first-hand and reviewed their applications. 9/27/02 Dillard Decl. ¶ 20. Ms. Dillard received another certificate of internal status candidates eligible for promotion to the Hausa Service Chief position, dated February 9, 2001, which included the same three candidates; however, Ms. Dillard again did not select any of the internal candidates. Def.'s Non-Select. Exs. at 21 (2/9/01 Certificate); Def.'s Stmt. ¶ 22.

A third certificate -- this one listing non-citizens eligible for the Hausa Service Chief position -- was prepared on February 16, 2001, and included Sunday Dare, an applicant from outside of the BBG. Def.'s Non-Select. Exs. at 22 (2/16/01 Certificate); Def.'s Stmt. ¶ 23. Ms. Dillard selected Mr. Dare for the Hausa Service Chief position on March 9, 2001. Def.'s Non-Select. Exs. at 22 (2/16/01 Certificate); Def.'s Stmt. ¶ 24; 9/27/02 Dillard Decl. ¶ 25. In her September 27, 2002 Declaration, Ms. Dillard avers that she met Mr. Dare on three separate occasions prior to his applying for the Hausa Service Chief position, 9/27/02 Dillard Decl. ¶ 25, and describes in detail her reasons for selecting Mr. Dare for the Hausa Service Chief position, id. ¶¶ 27-29. Because Mr. Dare was a non-citizen, on March 7, 2001, as required by BBG policy, Ms. Dillard wrote a detailed memo to the VOA Director of Personnel, requesting permission to select and hire Mr. Dare as Hausa Service Chief. 9/27/02 Dillard Decl. ¶ 26; Ex. 3 (3/7/01 Memo from G. Dillard re: Selection of Non-U.S. citizen for Hausa Chief position).

The reasons that Ms. Dillard proffers for selecting Mr. Dare in her memo are supported by Mr. Dare's application materials. According to these materials, Mr. Dare is an ethnic Yoruba (a Nigerian ethnic group), was born in Jos, Nigeria, and speaks Hausa, Yoruba, and English fluently. Def.'s Non-Select. Exs. at 23-25 (3/7/01 Memo from G. Dillard), id. at 34-41 (Dare Applic. Mat'ls). Mr. Dare holds a Bachelor of Science degree in International Studies from Ahmadu Bello University in Nigeria, a Masters degree in International Law and Diplomacy from the University of Jos in Nigeria and, at the time that he applied for the Hausa Service Chief position, was a Fellow in the Nieman Fellowship Program at Harvard University. Id. Mr. Dare's previous experience includes work as a correspondent, general editor, on-line editor, and head of the Abuja Bureau of the independent communications network in Lagos, Nigeria, where he was responsible for supervising and coordinating the work of 22 correspondents around Nigeria. Id. In addition, according to Ms. Dillard, Mr. Dare's co-workers indicated that he possessed effective management skills including team-building skills, and an ability to promote gender and ethnic diversity. Id. In her memo, Ms. Dillard specifically notes that Mr. Dare's "demonstrated skills in this critically important area, i.e., planning, directing, and managing the work of others, substantially exceed those of any other candidate." Id. at 24. Mr. Dare also worked with radio and television programs in Nigeria and in the United States. Id. at 25.

For her part, Plaintiff's application materials demonstrate that she holds a Bachelor of Arts in Mass Communications from Bayero University in Nigeria, as well as a Masters of Arts in Theater and Media Arts from the University of Kansas and, at the time she applied for the Hausa Service Chief position, had completed 27 credit hours towards a Ph.D. in Management from California Coast University, a correspondence school. Def.'s Non-Select. Exs. at 26-33 (Wada Applic. Mat'ls). In her application materials, Plaintiff describes her employment experience with VOA as including work as a Translator/Adaptor, an Editor/Writer, and Senior/Managing Editor. Id.

Ms. Dillard's request to select and hire Mr. Dare was approved, 9/27/02 Dillard Decl. Ex. 3 (3/7/01 Memo from G. Dillard), and Mr. Dare began working as Hausa Service Chief effective August 3, 2001, Def.'s Stmt. ¶ 29; Def.'s Non-Select. Exs. at 34. In November, 2001, an article appeared in The Weekly Standard (not a VOA publication) entitled "First, Do No Harm" and subtitled "In Nigeria the Voice of America has been condemned for being pro-Muslim, anti-Christian, and anti-American. VOA Director Robert Reilly has his hands full reforming this important service." Def.'s Non-Select. Exs. at 46-48 (11/21/01 Weekly Standard Article). In relevant part, the article quotes VOA Director Reilly as stating "'We are aware of problems' and are 'paying very special attention' to the Hausa-language operations." Id. at 47. The article continues to state "[t]his past August, Sunday Dare, an impressively credentialed Nigerian journalist and a Christian, was made chief of the Hausa-language service (before his appointment, the bureau chief position had long sat unfilled). Dare and Reilly are now overseeing the Hausa broadcasts." Id.

Plaintiff's initial contact with the BBG's Office of Civil Rights ("OCR") was on September 7, 2000.*fn4 Def.'s Non-Select. Exs. at 98 (9/24/02 Johnson Decl.) ¶ 10, id. at 100 (9/7/00 Initial Contact Sheet); Def.'s Stmt. ¶ 21. Plaintiff complained that she applied for, but had not received any information regarding her eligibility for, the Hausa Service Chief position.

Def.'s Non-Select. Exs. at 100 (9/7/00 Initial Contact Sheet). Plaintiff also complained about promotions and salaries within the Hausa Service, alleging gender and equal pay as bases of discrimination. Id. Plaintiff's informal complaint was assigned to an EEO counselor, who interviewed Plaintiff on September 29, 2000. Def.'s Non-Select. Exs. at 98 (9/24/02 Johnson Decl.) ¶¶ 10-12 ; id. at 100-08 (Documents re: 9/00 OCR Contact); Def.'s Stmt. ¶ 21. Plaintiff received a Notice of Right to File a Discrimination Complaint on December 14, 2000; however, Plaintiff did not file a formal Complaint of discrimination. Def.'s Non-Select. Exs. at 98(9/24/02 Johnson Decl.) ¶ 12 ; id. at 102-03 (12/14/00 Notice of Right to File); Def.'s Disc. Exs. at 78 (8/14/02 Wada Dep. at 196:8-197:4). According to Ms. Johnson, the BBG OCR Director, "the EEO Counselor would have no basis upon which to contact [Plaintiff's] supervisor or any other persons who may have an involvement in the matter" until after interviewing Plaintiff on September 29, 2000. Def.'s Non-Select. Exs. at 98-99 (9/24/02 Johnson Decl.) ¶ 14.

C. Denial of Plaintiff's Reclassification Request

On June 18, 2001, Plaintiff sent a memo to Ms. Dillard, Mr. Mengesha, and the VOA Personnel Management Specialist requesting that her position be reclassified and that she be promoted to a GS-13. Def.'s Stmt. ¶ 25; Def.'s Classification Exs. (hereinafter "Class. Exs.") at 1 (6/18/01 Memo from H. Wada). As explained in the Declaration of Barbara Diane Sellers, a Human Resources Specialist in the Office of Personnel, Operations and Benefits Division, of the BBG, Plaintiff's request was one for a non-competitive promotion based on accretion of duties, which required a classification specialist to conduct an evaluation of Plaintiff's position ("desk audit") "to determine whether [Plaintiff's] duties ha[d] increased significantly beyond the original classified duties of the position to such an extent that a promotion [was] warranted." Def.'s Class Exs. at 31 (9/27/02 Sellers Decl.) ¶ 37. In accordance with the standard practice for reclassification promotions in the Hausa Service, Plaintiff's request included a memo explaining why she believed her position was properly classified as a grade 13 position. Def.'s Class. Exs. at 2-3; id. at 32 (9/27/02 Sellers Decl.) ¶ 43. Subsequently, on June 20, 2001, Ms. Dillard was asked to complete a reclassification questionnaire, which was formatted for Plaintiff's specific request and asked whether Plaintiff was satisfying the key indicators for a GS-13 position. 9/27/02 Dillard Decl. ¶ 30; Def.'s Class. Exs. at 7 (7/5/01 Reclassification Form); id. at 32-33 (9/27/02 Sellers Decl.) ¶ 44. However, as Ms. Dillard "had no direct knowledge of [Plaintiff's] day-to-day activities as a senior editor in the Service," she indicated as much on the form and further indicated that she would "support the views of [Plaintiff's] immediate supervisor, Negussie Mengesha." 9/27/02 Dillard Decl. ¶ 30; Def.'s Class. Exs. at 7 (7/5/01 Reclassification Form).*fn5

Mr. Mengesha completed the form and returned it to the Office of Personnel. Def.'s Class. Exs. at 20 ¶ 11 (9/26/02 Mengesha Decl.); 9/27/02 Dillard Decl. ¶ 30. The form solicited Mr. Mengesha's opinion of Plaintiff's involvement in various aspects of "Script Preparation," and "Program Preparation," as well as three key "Indicators." Def.'s Class. Exs. at 7-10. Mr. Mengesha indicated that, although Plaintiff was involved in "Script Preparation" work, others within the Hausa Service conducted the same work, and further indicated that Plaintiff was not involved in Program Preparation" work. Id. As to the three key Indicators, Mr. Mengesha responded that Plaintiff "demonstrate[d] a mastery of radio broadcasting principles, practices, and techniques," but did not have "full editorial responsibility for directing the development and production of a substantial block of complex programming of major importance to VOA," and did not develop new approaches to programming. Id. The form was signed by both Mr. Mengesha and Ms. Dillard. Id.

The form was then forwarded to Myrna Whitworth, VOA Acting Director, for a decision on Plaintiff's reclassification request. Def.'s Stmt. ¶ 26; Def.'s Class. Exs. at 5 (7/10/01 Memo from M. Conboy). In her Declaration, Ms. Sellers avers that she prepared the forwarding memo submitted to Mr. Conboy for his signature, and that the "letter incorrectly stated that [Plaintiff] met all key indicators for a promotion to the GS-13 level. . . . it is clear from [Plaintiff's] reclassification questionnaire that she did not meet all the key indicators for a promotion." Def.'s Class. Exs. at 33-34 (9/27/02 Sellers Decl.) ¶ 50. As such, while the forwarding memo sent to Ms. Whitworth stated that Plaintiff's supervisors' view was "that [Plaintiff] meets all the key indicators for promotion to the GS-13 level," Def.'s Class. Exs. at 5 (7/10/01 Memo from M. Conboy), "[t]he questionnaire attached to the [classification] appeal clearly demonstrated that [Plaintiff] did not meet the requirements for the GS-13 level," Def.'s Class. Exs. at 13 ¶ 6 (9/17/02 Whitworth Decl.). As a result, Ms. Whitworth disapproved Plaintiff's promotion to the GS-13 level. Def's Class. Exs. at 6 (7/10/01 Memo from M. Conboy indicating Whitworth 8/14/01 disapproval), id. at 13 (9/17/02 Whitworth Decl.) ¶ 5.*fn6

In her declaration, Ms. Whitworth further avers that the Hausa Service Chief is ordinarily the only GS-13 employee in the Hausa Service, and that "there was no justification for having two GS-13 level employees in a service as small as the Hausa service." Id. ¶ 7.*fn7 By memo dated August 14, 2001, Plaintiff was advised that her reclassification request had been denied; Plaintiff was further advised: it was determined that your position does not meet all the key indicators for work at the GS-13 level. Specifically, your position does not have full editorial responsibility for directing the development and production of a substantial block of complex programming of major importance to VOA including responsibility for the content, style and tone of the program at least 25% of your time on a weekly basis. Therefore, your position is appropriately classified at the GS-12 level.

Def.'s Class Exs. at 11 (8/14/01 Memo from M. Conboy).*fn8 Plaintiff was also advised of her right to appeal the decision to the Office of Personnel Management. Id.

In her Statement, Plaintiff argues that her position, in fact, merited classification as a GS-13 position and that Ms. Whitworth improperly denied her reclassification request because "[t]wo independent determinations" -- one by the office of personnel and the other an independent EEOC investigation -- "determined that Plaintiff 'met all key indicators for a promotion to the GS-13 level.'" Pl.'s Stmt. ¶¶ 25-28. Plaintiff does not, however, provide precise record citations in support of these assertions. Id. The Court's review of Plaintiff's exhibits does not reveal any evidence of independent determinations that Plaintiff met all key indicators for a promotion to the GS-13 level, other than Mr. Conboy's forwarding memorandum to Ms. Whitworth which, as discussed above, erroneously indicated such a conclusion.*fn9

Plaintiff contacted the OCR on August 9, 2001, asserting that she received notice of Mr. Dare's selection as Hausa Service Chief on August 6, 2001, and that she had never received a response to her application for the position. Def.'s Stmt. ¶ 30; 10/22/06 Johnson Decl. Attach. 1 (8/9/01 Initial Contact Sheet and 10/10/01 EEO Counselor's Report). Plaintiff further complained that her reclassification request had been denied, and indicated that she intended to appeal that denial through the Office of Personnel Management. Id. Plaintiff alleged discrimination on the bases of race and sex, as well as reprisal. Id. On September 21, 2001, Plaintiff was issued a Notice of Right to File a Discrimination Complaint, and it appears from the record that Plaintiff filed a formal discrimination complaint on these charges on September 26, 2001. Pl.'s Stmt. ¶ 31; 10/22/06 Johnson Decl. ¶ 8; id. Attach. 1 (9/21/01 Notice of Right to File).*fn10

D. Events Surrounding the Hausa Service October 3, 2001 Broadcast

1. Mr. Dare's E-mails Prior to the Hausa Service

October 3, 2001 Broadcast Mr. Dare assumed the position of Hausa Service Chief effective August 3, 2001. Def.'s Stmt. ¶ 29; Def.'s Non-Select. Exs. at 34. On August 21, 2001, Mr. Dare sent an e-mail to the Hausa Service staff, in which he stated: the editor and mc-cr for each show must collaborate towards putting together a professional show. while the editor should be on top of all that is meant for the show, this should not prejudice the support of the mc-cr. . . . it is a joint responsibility. . . . I will count largely on the news judgment of the editors to decide which story/report is okay to be aired. . . ."

Def.'s Discipline Exs. (hereinafter "Disc. Exs.") at 1 (8/21/01 e-mail from S. Dare). On August 27, 2001, Mr. Dare sent another e-mail to his staff, summarizing his impressions from his first three weeks as Hausa Service Chief. Id. at 2-3 (8/27/01 e-mail from S. Dare); Def.'s Stmt. ¶ 31. In relevant part, Mr. Dare's August 27, 2001 e-mail stated:

With the benefit of the last three weeks, I have also noticed a few lapses and other areas that we must pay attention to. The lapses I have noticed range from: -arriving late to the studio for our shows - non-translation of English scripts before the show - non-proper edit of translated scripts . . . - not making available story insights for the Chief before the shows. . . . here are a few reminders on newsroom collaboration and teamwork, copy flow, enhancement, editorial responsibilities et al . . . - editor and mc-cr for each show will work together to make good news judgetment [sic] and put together the show. The bulk [sic] stops at the editor's. Lapses will not be excused for failure to collaborate . . . - report usage is not automatic. I will trust the judgment of the editors and mc-crs largely. some reports may however need to be discussed at the editorial meeting if the need arises.

Def.'s Disc. Exs. at 2-3 (8/27/01 e-mail from S. Dare).

Following the September 11, 2001 attacks on the United States, Ms. Dillard instructed the Chiefs of the services in the Africa Division to implement oversight measures for broadcasting news and stringer reports, in order to ensure balanced news coverage. 9/27/02 Dillard Decl. ¶ 31. Eight days later, Mr. Dare sent an e-mail to his staff advising them: please if you plan to or have interviewed any expert/analyst/academic/cleric on the US crisis, it is important that you let me know, hear it and okay it before it is used. this also applies to stringer reports. this is a measure aimed at ensuring balance and avoiding extremist views. this is an important notice.

Def.'s Stmt. ¶ 32; Def.'s Disc. Exs. at 4 (9/19/01 e-mail from S. Dare). The same day, Mr. Dare sent another e-mail to the Hausa Service staff stating, in relevant part:

As we continue the coverage of the crisis, certain issues are pertinent and need to be brought to our attention - all materials generated for crisis coverage i.e. stringer reports, taped interviews conducted here or from stringers should be brought to my notice or an editor before they are aired. . . . stringer reports on the crisis will have to be screened objectively on the whole let us be alert.

Def.'s Stmt. ¶ 33; Def.'s Disc. Exs. at 5 (9/19/01 e-mail from S. Dare). Finally, on October 2, 2001, Mr. Dare sent another e-mail to the Hausa Service staff asking: please any interviews, stringer reports or related materials relating to the attacks on the US will have to be brought to my notice before it is aired. Two editors may also need to listen to any tape on this issue and decide. . . . we must also pay attention to the profile, affiliation and qualification of the person we are talking to. the individual must have the credential/expertise to comment on this issue.

Def.'s Stmt. ¶ 34; Def.'s Disc. Exs. at 6 (10/2/01 e-mail from S. Dare). Plaintiff asserts that Mr. Dare's e-mails were "contradictory and confusing," citing a Union Grievance filed on her behalf that argues that Mr. Dare's various e-mails did not clearly indicate who bore responsibility for reviewing stringer reports. Pl.'s Stmt. ¶¶ 31-34; Pl.'s Exs. for Issue No. 27 (4/30/01 Union Grievance).*fn11 However, while Mr. Dare's e-mails variously indicate that stringer reports and live interviews should be reviewed by the editor and/or Mr. Dare himself, the e-mails make clear that -- at a minimum -- someone other than the MC was required to review stringer reports and live interviews. Plaintiff does not deny receiving these e-mails. Pl.'s Stmt. ¶¶ 31-34.*fn12

2. The Hausa Service October 3, 2001 Broadcast

On October 3, 2001, Plaintiff was the assigned editor of the 1500 UTC Hausa Service radio program, a daily air show broadcast from Washington D.C. (hereinafter the "October 3 Broadcast"). Def.'s Stmt. ¶ 25; Pl.'s Stmt. ¶ 25; Def.'s Disc. Exs. at 43 (9/19/02 Dare Decl.) ¶ 8.*fn13

A male IRB, Aliyu Mustapha, was the MC for the program. Def.'s Stmt. ¶ 36.*fn14 During the October 3 Broadcast, a stringer report containing an interview with an Islamic cleric in Nigeria, Sheikh Bauchi, was broadcast. Def.'s Stmt. ¶ 39-40; Def.'s Disc. Exs. at 47 (9/19/02 Dare Decl.) ¶ 22 . During the interview, Sheikh Bauchi stated:

If the U.S. thinks rationally of most of the global problems, the United States is responsible . . . . We are warning America, I swear if she decides to declare war on Afghanistan she will see will confront the unexpected. Therefore, we are warning her if she declares war on Afghanistan then the curtain that she is using to say she is not fighting Islam and Muslims would have been torn. . . . if she decides to go to war with Afghanistan, then the curtain has been removed and she is at war with Muslims and Islam.

Def.'s Stmt. ¶ 40; Def.'s Disc. Exs. at 16-18 (Transl. of 10/3/01 Stringer Report). The report did not include any rebuttal of Sheikh Bauchi's charges. Id.

The parties dispute whether Plaintiff bore sole responsibility for reviewing the stringer report containing Sheikh Bauchi's interview before it aired; however, the record evidence is clear that Plaintiff was the assigned editor for the October 3 Broadcast, and that she did not review the tape of the stringer report before it aired. Def.'s Stmt. ¶ 38; Pl.'s Stmt. ¶ 38; Def.'s Disc. Exs. at 12 (11/28/01 Memo from H. Wada to S. Dare) ("I did not take the report . . . I never handled it before it went on the air."); Def.'s Disc. Exs. at 9 (12/16/01 Mustapha Aff.) ("I reviewed the tape and felt that it was editorially balanced. I did not give the tape to either Wada or Dare for their review before broadcasting it."); Pl.'s Exs. for Issue No. 27 (12/17/01 Perry Report) ¶¶ 21-22 ("the Complainant did not see or hear the tape that was broadcast on October 3, 2001 . . . Mr. Mustapha did not give it to Complainant or Mr. Dare for their review . . . ").*fn15 In addition, in deposition testimony, Plaintiff acknowledged that she was aware one-half hour before air time that there were three minutes of unfilled air time in the Broadcast and that Mr. Mustapha told her that he had three stringer reports for the Broadcast. Def.'s Disc. Exs. at 73-74 (8/14/02 Wada Dep. at 146:9-152:24). Plaintiff further testified that she told Mr. Mustapha to let her know if he intended to use a stringer report, id., and thus appears to argue that Mr. Mustapha was responsible for making sure that Plaintiff reviewed the stringer report before it aired. Pl.'s Stmt. ¶ 38. To the contrary, Mr. Dare's e-mails make clear that Plaintiff, as editor, bore the ultimate responsibility for the October 3 Broadcast. Therefore, based on the totality of the record evidence, it appears Plaintiff was aware that the Broadcast might include a stringer report, that she bore responsibility for reviewing it before it aired, and that she failed to review that report before it aired.

The October 3 Broadcast caused dissatisfaction inside and outside of VOA. 9/27/02 Dillard Decl. ¶ 34; Pl.'s Exs. for Issue No. 27 (12/17/01 Perry Report) ¶ 24 ("The broadcast was not editorially balanced and it created an embarrassment to the Agency."). On October 25, 2001, Congressman Dave Weldon wrote a letter to VOA Director Robert Reilly, expressing that "[c]oncerns over Hausa language Voice of America (VOA) broadcasts in Nigeria were recently brought to my attention by Americans living and working in Nigeria. . . ." Def.'s Stmt. ¶ 41; Def.'s Disc. Exs. at 19-20 (10/25/01 Letter from D. Weldon). Congressman Weldon's letter specifically referred to the interview with Sheikh Bauchi and asked that he be provided with an English transcript of the interview. Id. On November 16, 2001, Congressman Vernon J. Ehlers wrote a similar letter to Director Reilly, "with deep concern regarding alleged pro-Muslim, Anti-American reporting by the VOA's Hausa-language programming in Nigeria." Def.'s Disc. Exs. at 21-22 (11/16/01 Letter from V. Ehlers).

Both of the Congressmen's letters refer to statements allegedly made by Sheikh Bauchi and included in the Hausa Service's broadcast on October 15, 2001. See Def.'s Disc. Exs. at 19- 22. Plaintiff seizes on this date discrepancy in her Statement and asserts that the "story from the 15th referred to by congress correspondence was assigned by Sunday Dare (supervisor) and listened to by him before it went on air," broadly citing her "exhibit" in support of this statement. Pl.'s Stmt. ¶ 41. However, none of the documents provided by Plaintiff in any way suggest that a second interview with Sheikh Bauchi aired on the Hausa Service on October 15, 2001. To the contrary, both Mr. Dare and Ms. Dillard testified during their depositions in this matter that the Congressmen were mistaken as to the broadcast date of the Sheikh Bauchi interview, and that the only interview with Sheikh Bauchi that aired on the Hausa Service aired during the October 3 Broadcast. See Def.'s Disc. Exs. at 87-93 (1/25/05 Dillard Dep. at 104:1-110:11); id. at 95-96 (11/29/04 Dare Dep. at 160:8-162:11). As such, there is no evidence in the record that a second interview with Sheikh Bauchi aired on October 15, for which Mr. Dare bore responsibility.

Following the October 3 Broadcast, VOA Director Reilly and Ms. Dillard were asked to attend meetings with members of Congress, during which the members spoke of closing the Hausa Service permanently. Def.'s Stmt. ¶¶ 42-43; 9/27/02 Dillard Decl. ¶ 34; Def.'s Disc. Exs. at 23 (11/29/01 e-mail from R. Reilly). In addition, the October 3 Broadcast was mentioned in various media outlets. Id.

3. Discipline Resulting from the October 3 Broadcast -- Plaintiff's Reassignment, Proposed ...


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