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Almutairi v. International Broadcasting Bureau

United States District Court, District of Columbia

March 11, 2013

Nasser ALMUTAIRI, Plaintiff,

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[Copyrighted Material Omitted]

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Daniel James McLaughlin, William Robert Stein, Michael A. Debernardis, Hughes Hubbard & Reed, LLP, Washington, DC, for Plaintiff.

Alexander Daniel Shoaibi, Andrea McBarnette, U.S. Attorney's Office, Washington, DC, for Defendants.


JAMES E. BOASBERG, District Judge.

Plaintiff Nasser Almutairi brings this suit claiming that Radio Sawa, an Arabic-language radio station housed in the federal government, twice declined to hire him based on his color, national origin, and disability. The first time around, despite a successful interview with a supervising editor at the radio station and sparkling credentials as a journalist, Almutairi waited nine months for an answer, then was told that an anti-nepotism policy barred Radio Sawa from hiring him. No such policy, in fact, existed, and Defendants now explain that Plaintiff was rejected as overqualified. Almutairi reapplied. Radio Sawa again turned down his application, this time saying that another applicant was better qualified. In a deposition eight years later, however, the hiring supervisor claimed that Almutairi's bid had been declined largely because other journalists said he had falsified his resume. At least one of the journalists named by the supervisor denies making such a statement. In addition, according to Almutairi, after his interview, the same supervisor said, " We

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don't need more people with disabilities here."

Defendants now move for summary judgment, arguing that an array of procedural hurdles bars suit for the first rejection and that no reasonable jury could find discrimination in the second. In granting the Motion in part and denying it in part, the Court resists Defendants' procedural gambits as to Plaintiff's first application, but agrees that a jury could find discrimination only on the basis of disability, not color or national origin, as to the second.

I. Background

The parties dispute many facts. As Almutairi is the nonmoving party, the Court will, in discussing the state of the record, generally credit his evidence and draw justifiable inferences in his favor.

A. Factual Background

A journalist with a long and impressive resume, Almutairi published the first English and nongovernmental newspapers in Yemen and has worked for Al Jazeera and the BBC. See Opp., Exh. 2 (Dep. of Nasser Almutairi) at 15:2-5, 34:2-38:12, 55:17-22; Opp., Exh. 11 (Decl. of Nasser Almutairi), ¶ 6. He is Yemeni-American and has dark skin. See Almutairi Decl., ¶ 1. Since a car accident in 1997, Almutairi has had trouble walking and standing. See id., ¶ 2. He still walks with a limp, usually uses a brace or cane, and must pause to rest after walking short distances. See id.

This case concerns repeated rejections of Almutairi's employment applications by Radio Sawa. Radio Sawa " is a 24-hour, seven-day-a-week Arabic-language broadcast that originates its broadcasts from studios in the Washington, D.C. area and Dubai, U.A.E." Defs. Statement of Material Facts (SMF), ¶ 4. At the time Almutairi applied, Radio Sawa was part of the Broadcasting Board of Governors, " a federal agency responsible for the U.S. Government's international broadcasting," which " manages a network of individual broadcasting services." Grosdidier v. Chairman, Broad. Bd. of Governors, 560 F.3d 495, 496 (D.C.Cir.2009).[1]

While Almutairi applied to (and was rejected by) Radio Sawa on multiple occasions, the dispute here has narrowed to his first and last applications: June 2003 and March 2004. The Court will discuss those two chronologically.

As a threshold matter, the parties disagree about exactly what position Almutairi applied for in June 2003. Plaintiff

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asserts that, in response to Vacancy Announcement M/P-03-02 listing multiple openings, he applied to work as an Arabic-speaking " International Radio Broadcaster" — a full-fledged federal employee paid at General Schedule level 12. See Almutairi Decl., ¶¶ 7-8; Opp., Exh. 6 (BBG, Vacancy Announcement (Jan. 2003)). The Government, on the other hand, contends that Almutairi applied to work as a Purchase Order Vendor. See King Decl., ¶ 7; Mot., Exh. 8 (Decl. of Bernard Kotarski), ¶ 4; Opp., Exh. 8 (Decl. of Munir Nasser), ¶ 15. While some POVs performed similar tasks to IRBs, they earned less and were classified as contractors instead of federal employees. See King Decl., ¶ 7; Nasser Decl., ¶ ¶ 4-7. Within the POVs, furthermore, it seems there was a subordinate distinction between broadcaster POVs, who were like IRBs with more supervision, and technical POVs, who had more mechanical tasks. See Dep. of Daniel Nassif at 17:4-18:22.[2] That distinction proves important in this case because the Government maintains that Almutairi applied for only a technical POV position, while Plaintiff argues that he at least applied for a broadcaster POV position (if not an IRB position). Compare Nassif Dep. at 121:11-12 (" Mr. Almutairi never applied for a broadcasting POV." ), with Nasser Decl., ¶¶ 4-7, 14-15 (suggesting Almutairi, if hired, would have performed tasks of broadcaster POV).

Whatever job he applied for in June 2003, Radio Sawa granted him an interview. Almutairi went to Radio Sawa's D.C. office on June 12 and met with Munir Nasser, the acting supervisor of the Radio Sawa Internet Unit. See Almutairi Decl., ¶ 8; Nasser Decl., ¶¶ 3, 16. That Unit prepared news content for www. radiosawa. com, and its staff included a mix of IRBs and POVs. See Nasser Decl., ¶¶ 3-7. Nasser concluded that Almutairi " was perfectly suited for this position and that he should be hired," id., ¶ 16, and— according to Almutairi— Nasser gave " a conditional offer of employment, subject to [his] obtaining the obligatory security clearance." Almutairi Decl., ¶ 8; see also Nasser Decl., ¶ 17 (" It was my belief that Mr. Almutairi would be offered the position officially once he successfully obtained a security clearance." ). Almutairi returned to Radio Sawa's office around July 2003, where Nasser introduced Almutairi to Radio Sawa's managing editor, Daniel Nassif. See Almutairi Decl., ¶ 11. According to Almutairi, as he was walking away, he heard Nassif tell Nasser, " ‘ We don't need more people with disabilities here.’ " Id., ¶ 11.

The security office eventually cleared Almutairi. See Nasser Decl., ¶ 18. Radio Sawa, however, lost interest in him. In late August, Nasser told Almutairi that management had doubts about hiring him, and that Nasser would call when the issue was resolved. See Almutairi Decl., ¶ 13. In the interim, Almutairi applied for IRB positions at Radio Sawa (twice in October 2003 and once in December 2003). Radio Sawa rejected each submission without delay. See id., ¶ 15.

Not until March 2004, however, was Almutairi told that his June 2003 application had not succeeded. Nasser left Almutairi a voicemail explaining that a Radio Sawa policy prohibited family members from working together, and that because Almutairi's son was a technical POV, Radio Sawa had to decline Almutairi's June 2003 application. See Almutairi Decl., ¶ 16; Nasser Decl., ¶ 21. Nasser learned of the policy from Nassif. See Nasser Decl., ¶¶ 18-21; see also Answer, ¶ 20 (admitting as much). The problem, however, is that

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Radio Sawa had no such policy, see Opp., Exh. 12 (Dep. of Susan King) at 47:11-48:14, and Nassif now admits that the decision not to hire Almutairi was not based on an anti-nepotism policy. See Nassif Dep. at 53:2-9. Instead, Nassif asserts that Almutairi's June 2003 application was unsuccessful because Almutairi had applied for only a technical POV job, for which he was overqualified. See id. at 57:1-19.

Less than a week after this latest rejection, Almutairi applied for another job at Radio Sawa. See Almutairi Decl., ¶ 18. This time, there is no dispute that Almutairi applied for an IRB position (responding to Vacancy Number M/P-04-22). See Defs. SMF, ¶ 25; Almutairi Decl., ¶ 18. According to the Government, Radio Sawa received Almutairi's application on March 23, the application deadline closed on March 24, and Nassif rejected Almutairi and selected Zahrat Abuzaid on March 25. See Defs. SMF, ¶¶ 25-26, 28. Abuzaid has dark skin, is from Sudan, and is not disabled. See Nassif Dep. at 73:22-74:1; Mot., Exh. 19 (Application of Zahrat Abuzaid for M/P-04-22) at 4. When she was selected, Abuzaid was already working for Radio Sawa as an IRB, performing essentially the same tasks as she would in the new position. See Application of Zahrat Abuzaid for M/P-04-22 at 1-2. Her prior position was open only to noncitizens, however, so when Abuzaid became a citizen, she had to reapply. See King Decl., ¶¶ 9-11. Nassif explained that he hired Abuzaid because she was " one of the best broadcasters when it comes to doing multifunctional jobs," she could tell " Americana stories like nobody else," she understood Radio Sawa's " mission better than anybody," and she had a " varied and broad" broadcasting background. Nassif Dep. at 141:8-143:7; Mot., Exh. 15 (EEO Aff. of Daniel Nassif) at 4. He based this decision on " her experience and background as reflected in her resume" and his " own personal observation of the quality of her work since [his] arrival at Radio Sawa." Nassif. EEO Aff. at 4.

At his deposition, Nassif gave another explanation. He claimed that other Yemeni journalists, including Munir Mawari and Wadea Mansour, had said Almutairi was a bad journalist whose resume could not be substantiated. See Nassif Dep. at 132:3-134:22, 139:5-141:5. Almutairi disputes this account, providing a declaration from Mansour swearing that Nassif's testimony is " not true." Opp., Exh. 1 (Decl. of Wadea Mansour), ¶¶ 3-4.

B. Procedural Background

After submitting an unsuccessful complaint to the BBG's Office of Civil Rights, Almutairi filed this suit pro se in the U.S. District Court for the District of Maryland. Almutairi had applied to Radio Sawa five times: twice in October 2003, and once each in June 2003, December 2003, and March 2004. The suit alleged that each rejection constituted employment discrimination on the basis of color, national origin, age, and disability. See Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (color and national origin); Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. (age); Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. (disability). After a long delay while Almutairi procured counsel and served process on Defendants, the case was transferred here. See Almutairi v. Isaacson, No. 06-cv-1929 (D.Md. Aug. 20, 2010), ECF No. 41. On Defendants' motion, this Court in 2011 dismissed the age-discrimination claims and all other claims related to the October and December 2003 applications for Plaintiff's failure to exhaust administrative remedies. See Almutairi v. Int'l Broad. Bureau (Almutairi I), No. 10-1479 (D.D.C. Oct. 3, 2011), ECF No. 56. Surviving were the claims for failure to hire on the basis of color,

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national origin, and disability following Almutairi's June 2003 and March 2004 applications.

With discovery complete, the Government has now filed another Motion. While styled a " Motion to Dismiss or, in the Alternative, for Summary Judgment," it brims with record citations outside the pleadings. The Motion, therefore, " must be treated as one for summary judgment under Rule 56" and not one to dismiss under Rule 12(b)(6). Fed. R. Civ. Pro. 12(d).

II. Legal Standard

Summary judgment may be granted if " the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C.Cir.2006). A fact is " material" if it is capable of affecting the substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505; Holcomb, 433 F.3d at 895. A dispute is " genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505; Holcomb, 433 F.3d at 895. " A party asserting that a fact cannot be or is genuinely disputed must support the assertion" by " citing to particular parts ...

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