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Abdelkarim v. Tomlinson

March 20, 2009

MOHAMED ABDELKARIM, ET AL., PLAINTIFFS,
v.
KENNETH Y. TOMLINSON, CHAIRMAN, BROADCASTING BOARD OF GOVERNORS DEFENDANT.



The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge

MEMORANDUM OPINION

This case arises from a employment dispute by former employees of Voice of America ("VOA") who were not hired by Radio SAWA after a reorganization of VOA. Plaintiffs allege discrimination based on national origin, religion, and age. Defendant argues that the plaintiffs did not exhaust administrative remedies and that their claims fail under McDonnell Douglass because while they meet the prima facie test, they cannot show pretext. Upon consideration of the motion, responses and replies thereto, applicable law, and the entire record, the Court finds that this case is fraught with genuine issues of material facts in dispute. Accordingly, defendant's Motion for Summary Judgment is DENIED.

I. BACKGROUND

Plaintiffs were employees of VOA before it ended its Arabic Service and switched to Radio SAWA, also an Arabic language radio station supported by the U.S. Government. Plaintiffs include: Mohamed Abdelkarim, a U.S. citizen of Egyptian background, who is a practicing Sunni Muslim; Zainab Abdulrahman, a U.S. citizen of Egyptian background, who is a practicing Sunni Muslim; Hayat Alkhateeb, a U.S. citizen of Palestinian background, who lived in Syria for many years and is a practicing Sunni Muslim; Amina ElBishlawy, a U.S. citizen of Egyptian Background, who is a practicing Sunni Muslim; and Faiza Elmasry, a U.S. citizen of Egyptian background, who is a practicing Sunni Muslim.

In early 2001, the Broadcasting Board of Governors decided to replace the VOA Arabic Service with the Middle East Radio Network ("MERN"), which eventually became known as Radio SAWA. According to James Hooper, Radio SAWA's staff director, "Radio SAWA was set up because of the overwhelming need [of] the United States government to reach people in the Middle East." VOA employees were allowed to compete for jobs with Radio SAWA through an agreement that was worked out with their union. MERN was allotted thirty-two positions; there were thirty-four employees in the VOA Arabic Service. VOA posted vacancy announcements for multiple positions at the GS-12 and GS-13 grade levels. Pursuant to a memorandum of understanding worked out between VOA and the union, VOA employees who were only seeking lateral reassignment to Radio SAWA were not required to apply under a merit promotion vacancy announcement. Only employees who were seeking promotion were required to apply under the merit promotion announcement.

Jack Welch, the Director of Personnel, assured VOA staff that current employees would be considered for positions with Radio SAWA before outside employees and lower graded employees were considered. Welch also set out other criteria for selecting Radio SAWA employees in this order: The panel would first consider internal candidates at grade of position to be filled; if no internal candidates met the requirements, internal candidates who did not apply but who were at grade of the position to be filled would be considered; if none of the candidates met those requirements, the panel would look to internal applications for promotion; if none of these requirements were met, then external candidates would be considered. Welch noted that external hires or contractors would be used only if a determination was made that no current staff member meets the requirements for the position involved. The personnel department determined whether candidates for promotion met basic qualification requirements based on position description and qualification requirements supplied by MERN. The selection process was also governed by the Hatch-Mundt Act, 22 U.S.C. § 1474, which grants hiring preferences to U.S. citizens over non-citizens. Morever, according to VOA policy, "[a] nonU.S. citizen may be appointed only after reasonable efforts to recruit equally or better qualified U.S. citizens have been made and have been unsuccessful."

Susan King, the personnel specialist who assisted in the processing of applications for the vacant positions, reviewed the applications that were received through the merit/competitive selection process to determine which candidates met the basic qualifications for the positions. After candidates were ranked by a committee of three individuals, King issued a merit promotion certificate of eligibles to Moufac Harb, the Director of Network News for Radio SAWA. This certificate contained the names of the individuals with the top ten scores from the rating panel, including plaintiffs Abdelkarim, Abdelrahman, and Elmasry.

King, however, was asked by her supervisor, Michael Conboy, to retrieve the list and issue a list with only five eligible candidates. The second certificate contained the names of plaintiffs Abdulkarim and Abdelrahman. Later, Welch instructed King to issue a third certificate that contained the names of all seventeen candidates who applied for the available positions.

With the exception of Elmasry, who withdrew her application, all of the plaintiffs applied for the GS-13 Supervisory International Radio Broadcaster ("IRB")/Shift Editor positions.

They were all on the certificate of eligibles, and they were interviewed by the selection committee. None of them was selected for positions with Radio SAWA. All of the plaintiffs also applied for the GS-12 IRB positions. They were all included on the certificate of eligibles, and they were interviewed by the selection committee. None of them was selected for positions with Radio SAWA. Harb testified in his deposition that none of the plaintiffs were even minimally qualified to perform the jobs for which they applied.

Plaintiffs contacted VOA's Office of Civil Rights on November 7, 2002, and filed formal complaints on May 13, 2003. In January 2004, plaintiffs elected to proceed to a hearing before an administrative judge at the Equal Employment Opportunity Commission ("EEOC"). Discovery with the EEOC closed on January 11, 2005; plaintiffs withdrew their hearing request on January 12, 2005. Plaintiffs then requested a Final Agency Decision ("FAD"), which they received. On September 8, 2005, plaintiffs filed suit in this Court. Discovery closed in this case on April 9, 2007. Defendant filed a Motion for Summary Judgment on August 15, 2007, which this Court denied without prejudice on May 28, 2008. Defendant filed a renewed Motion for Summary Judgment on June 13, 2008 that is currently before this Court.

II. DISCUSSION

A. Standard of Review

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted only if the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). A fact is genuine "'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 ...


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