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Nyunt v. Tomlinson

March 21, 2008

KYAW ZAW NYUNT, PLAINTIFF,
v.
KENNETH Y. TOMLINSON, CHAIRMAN, BROADCASTING BOARD OF GOVERNORS, DEFENDANT.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

Plaintiff Kyaw Zaw Nyunt brings this action against defendant Kenneth Y. Tomlinson in his official capacity as Chairman of the Broadcasting Board of Governors ("the Board" or "BBG") alleging "discrimination based on age, race, national origin, and retaliation," and seeking review of allegedly "unauthorized agency action." Compl. at 1. Nyunt asserts his claims under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623 et seq.; Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq.; 42 U.S.C. § 1981 et seq.; BBG governing law; the Administrative Procedure Act ("APA"); and the law of the District of Columbia. Currently before the Court are Nyunt's motion for partial summary judgment and defendant's motion to dismiss or, in the alternative, for summary judgment. Upon careful consideration of the motions and the parties' memoranda, the applicable law, and the entire record, the Court will deny Nyunt's motion, and will grant the Board's motion.

BACKGROUND

Nyunt, a United States citizen of Burmese national origin, is an International Radio Broadcaster (GS-11) for the Broadcasting Board of Governors. Pl.'s Statement of Material Facts as to Which There is No Genuine Issue ("Pl.'s Statement") ¶ 1. Specifically, he works in the Burmese Service of the Asian division of Voice of America, and has since 1998. Prior to his employment at BBG, Nyunt worked for the British Broadcasting Company as a broadcaster from 1968 to 1971, as Deputy Chief of Mission for Burma in the Rome Embassy for three years, and as an officer for the Burmese Ministry of Foreign Affairs in Rangoon. Id.

In the spring of 2003, when Nyunt was 58-years-old, BBG announced two vacancies for GS-12 positions in the Burmese Service. Def.'s Statement of Material Facts Not in Genuine Dispute ("Def.'s Statement") ¶ 4. One position for an International Radio Broadcaster was designated under Vacancy Announcement Number M/P 03-26 ("VA 03-26"), and one position for an International Broadcaster was designated under Vacancy Announcement Number M/P 03-29 ("VA 03-29"). Id. Nyunt filed timely applications for each position.

The Certificates of Eligibles for VA 03-26 demonstrate that eight people applied for the position of International Radio Broadcaster. Def.'s Opp. Ex. M at 1-3. Three applicants were U.S. citizens, and five were non-citizens. The Certificates of Eligibles listed the candidates' names along with the scores they were given based upon a review of their applications. The Certificate of Eligibles for U.S. citizens listed U. Chit Oo with a score of 97, U San Myint with a score of 89, and Nyunt with a score of 89, which was calculated incorrectly and should have been 96. "Pursuant to 5 C.F.R. § 332.404, commonly referred to as the 'Rule of Three,' a selection [of the individual to fill the position] must be made from among the three highest-ranked applicants on the certificate of eligibles." Def.'s Opp. Ex. U, Murphy Decl. at ¶ 5. Thus, even though Nyunt had been assigned an incorrect score, he was still considered for the position as one of the top three contenders. After interviews were conducted, U San Myint ("Myint"), a 69-year-old U.S. citizen of Burmese national origin, was selected.

For VA 03-29, the Certificates of Eligibles demonstrate that six people were considered for the position of International Broadcaster. Def.'s Opp. Ex. I at 1-2. Three were U.S. citizens, and three were not. This time Nyunt was ranked the highest on the Certificate of Eligibles for U.S. citizens with a score of 94, followed by U San Myint with a score of 84 and Khin M. Soe with a score of 83.67. Id. at 2. On the non-citizen Certificate of Eligibles, Lwin Htun Than was the highest ranked contender with a score of 99, followed by Nyi Nyi with a score of 89 and Win Aung with a score of 84. Id. at 1. No interviews were conducted for this position, but an offer was ultimately extended to Lwin Htun Than ("Than"), a 38-year-old non-citizen of Burmese national origin.

On November 5, 2003, Nyunt filed a formal Equal Employment Opportunity ("EEO") Complaint of Discrimination with the agency's Office of Civil Rights alleging age and national origin discrimination in the Board's failure to select him for VA 03-26 or VA 03-29. Def.'s Opp. Ex. A. The Office of Civil Rights sent Nyunt a letter on November 20, 2003, advising him that the following claims were being processed:

Whether you were discriminated against based on your National Origin . . . and Age . . . when as you claim: On September 22, 2003, you learned that you were not selected for the position of International Broadcaster (Burmese), GS-1001-12, advertised under Vacancy Announcement No. M/P-03-29, and the selectee was a younger Burmese non-citizen. On June 16, 2003, you were also not selected for Vacancy Announcement No. M/P-03-26.

Def.'s Opp. Ex. P.

Nyunt thereafter initiated this action on June 23, 2006. In his complaint in this Court, he alleges: (1) that the Board violated the ADEA by failing to promote him to the GS-12 positions in VA 03-26 and VA 03-29; (2) that he was discriminated against by reason of his Burmese national origin and his Asian race in violation of Title VII; (3) that the Board disregarded his rights under 42 U.S.C. §§ 1981 and 1983; (4) that the Board retaliated against him for exercising his rights by "failing to select him for a GS-12 position, imposing discipline, withholding leave, assignments, shifts, and imposing unreasonable terms and conditions of employment and in harassing him"; (5) that the Board lacked the authority to hire a non-citizen under 22 U.S.C. § 1474(1); and (6) that the Board lacked the authority to promote a non-citizen to a supervisory position. Nyunt has now moved for partial summary judgment on Count V.

The Board has cross-moved to dismiss or, in the alternative, for summary judgment. It argues: (1) that Nyunt's claims of discrimination based upon race and retaliation must be dismissed for failure to exhaust administrative remedies; (2) that the claims of discrimination based upon age and national origin must be dismissed because Nyunt cannot establish a prima facie case of such discrimination; (3) that his claims based upon District of Columbia law and 42 U.S.C. §§ 1981 and 1983 must be dismissed for failure to state a claim upon which relief can be granted;*fn1 and (4) that the Board's interpretation of 22 U.S.C. § 1474(1) is reasonable and should be upheld. In any event, the Board argues that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.

LEGAL STANDARDS

I. Dismissal Pursuant to Fed. R. Civ. P. 12(b)(6)

All that the Federal Rules of Civil Procedure require of a complaint is that it contain "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. ___, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); accord Erickson v. Pardus, 551 U.S. ___, 127 S.Ct. 2197, 2200 (2007) (per curiam). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the "grounds" of "entitle[ment] to relief," a plaintiff must furnish "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atl. Corp., 127 S.Ct. at 1964-65; see also Papasan v. Allain, 478 U.S. 265, 286 (1986). Instead, the complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp., 127 S.Ct. at 1965 (citations omitted). Hence, although "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is impossible, and 'that a recovery is very remote and unlikely,'" id. (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)), the "threshold requirement" of Fed. R. Civ. P. 8(a)(2) is "that the 'plain statement' possess enough heft to 'sho[w] that the pleader is entitled to relief,'" id. at 1966 (quoting Fed. R. Civ. P. 8(a)(2)).

The notice pleading rules, however, are not meant to impose a great burden on a plaintiff. Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512-13 (2002). When the sufficiency of a complaint is challenged by a motion to dismiss under Rule 12(b)(6), the plaintiff's factual allegations must be presumed true and should be liberally construed in his or her favor. Leatherman v. Tarrant County Narcotics & Coordination Unit, 507 U.S. 163, 164 (1993); Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C. Cir. 1979); see also Erickson, 127 S.Ct. at 2200 (citing Bell Atl. Corp., 127 S.Ct. at 1965)). The plaintiff must be given every favorable inference that may be drawn from the allegations of fact. Scheuer, 416 U.S. at 236; Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). However, "the court need not accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint. Nor must the court accept legal conclusions cast in the form of factual allegations." Kowal v. MCI Commc'n Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994); see also Domen v. Nat'l Rehab. Hosp., 925 F. Supp. 830, 837 (D.D.C. 1996) (citing Papasan, 478 U.S. at 286).

II. Summary Judgment Pursuant to Fed. R. Civ. P. 56(c)

Summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by identifying those portions of "the pleadings, the discovery and disclosure materials on file, and any affidavits" which it believes demonstrate the absence of a genuine issue of material fact. Fed. R. Civ. P. 56(c); see Celotex, 477 U.S. at 323.

In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 ...


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