United States District Court, District of Columbia
This case revolves around assignments given (and not) to a television reporter at the Voice of America’s Persian News Network, an entity under the Board of Broadcasting Governors. Reporter Parichehr Farzam alleges that she was retaliated against for filing complaints that VOA violated the Equal Pay Act and Title VII of the Civil Rights Act of 1964. The Court earlier transferred two counts to the Court of Federal Claims, Dkt. 99, and the Board now moves for summary judgment on the two remaining counts after discovery. Based on undisputed facts, the Court will grant the motion.
None of the following facts is in genuine dispute. Ms. Farzam is a United States citizen who was born and lived in Iran until she came to the United States at the time of the Iranian Revolution in 1979. Ms. Farzam worked in various capacities in the Iranian government before the Revolution, including in the Prime Minister’s office as executive director of Taavon, an official government magazine that covered agricultural policies. In 2000, she began working as a contract employee in VOA’s Persian Service, a radio broadcast service, covering the 2000 presidential election. She became a full-time employee of VOA in 2001.
Defendant Jeffrey Shell is the chairman of the Broadcasting Board of Governors (the Board), an agency of the United States Government that distributes news via radio, television, internet, and other media sources to individuals around the world through broadcasters such as Voice of America (VOA). VOA now has a Central News Desk that gathers news and disseminates it to VOA’s approximately 45 different language services. Def. Statement of Material Facts [Dkt. 56] (Def.’s Facts) ¶ 14. The Central News Desk has two (2) White House correspondents who gather information and provide it to the individual language services to translate and use in its television news content as each language service deems appropriate. Id. ¶ 15.
In 2004, Ms. Farzam and other employees of the Persian Service were detailed to work at Radio Farda, which was part of Radio Free Europe and used employees from the British Broadcasting Corporation (BBC) and VOA. During this time, Ms. Farzam and her colleagues continued to be paid by VOA but received directions and day-to-day assignments from Radio Farda. While working at Radio Farda (although based in the United States), Ms. Farzam served as a radio broadcaster whose responsibilities included covering the White House. She therefore qualified for a “hard pass” as an accredited news representative to the White House. Ms. Farzam also held press credentials from the State Department and Congress. Ms. Farzam occasionally traveled with the White House press corps and covered the 2004 presidential election and the 2006 mid-term elections for Radio Farda. In March 2008, she conducted a radio interview of President George W. Bush in the White House, with a colleague from VOA.
In March 2006, while on detail to Radio Farda, Ms. Farzam filed an equal employment opportunity (EEO) complaint against the Board, alleging gender discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, § 2000e-3(a), retaliation, and unequal pay under the Equal Pay Act, 29 U.S.C. § 206, § 215(a)(3). The charge was resolved on March 26, 2008 when both parties agreed to a settlement that provided for Ms. Farzam’s promotion to a GS-12 grade (retroactive to April 2004); designated within-grade and quality-step increases through April 2007 with a further step increase in 2009; back pay, overtime pay, and any applicable retirement benefits; and attorney fees and costs of $ 9, 000. Def. Mem., Ex. 78 [Dkt., 59-15] (2008 Settlement Agreement). The agreement, signed while Ms. Farzam was still on detail to Radio Farda, was executed for the Board by the Director of the Persian News Network, Sheila Gandji, among others.
All employees of the Board ended their details to Radio Farda in 2008 and returned to work at the Persian News Network (PNN), formerly the Persian Service. Upon her return to the Persian News Network on July 8, 2008, Ms. Farzam was asked to make the transition from radio broadcaster to television news reporter as part of her new job duties and responsibilities. She was also assigned to the PNN’s flagship news program, “News and Views.”
Ms. Farzam complains that she was then “disallowed from continuing to report from the White House, had reporting assignments and reports disallowed and not broadcast, and was subjected to other responsibility and work product curtailments and diminutions . . . in retaliation for her prosecution of her 2006 [Title VII and Equal Pay Act] complaint.” Pl. Opp’n to Def Mot. Summ. J. [Dkt. 59] (Opp’n) at 3. Specifically, she alleges the following series of retaliatory acts:
. After the Settlement Agreement, the Board “engaged in additional acts of retaliation.” Am. Compl. ¶ 10;
. After July 2008 and “up until several months ago, ” Ms. Farzam’s “efforts to initiate work projects and undertake corresponding activities . . . were in numerous instances resisted. She was limited in large part to doing translations and preparing the contents of packages for television” or given no assignments at all. Id. ¶ 11;
. After her return to VIOA in July 2008, Ms. Farzam was not allowed to travel to cover domestic or international conferences, including G-8 and G-20 conferences, although less experienced colleagues were allowed to cover some of those meetings. Id. ¶ 12;
. After her return to VOA in July 2008, Ms. Farzam was not provided necessary audio equipment to record interviews. Id. ¶ 13;
. “[U]p until several months ago, ” the Persian News Network “failed to broadcast reports Plaintiff prepared, ” including stories on President-Elect Obama’s visit to President Bush just before the inauguration on January 20, 2009 and a report on a news conference held by the First Lady Michelle Obama. Id. ¶ 14; . In November 2008, the Persian News Network created a special team for covering inauguration events (in January 2009) but failed to include Ms. Farzam despite her experience. Id. ¶ 15;
. The Persian News Network failed to renew Ms. Farzam’s credentials for press coverage of the White House, State Department, or Congress, as those credentials expired in February 2009, March 2009, and April 2009, respectively. Id. ¶ 16;
. On August 26, 2010, the Persian News Network did not approve Ms. Farzam’s request to cover Congressman Chris Van Hollen at the National Press Club and the Persian News Network failed to respond timely to her request to cover a Q&A news conference by Senators John Cornyn and Robert Menendez to be held on September 30, 2010, so that she was unable to do so. Id. ¶ 17;
. On November 3, 2010, Ms. Farzam was required to attend a refresher course in journalism and preparing packaging, along with many new employees, although she had been doing these tasks for many years at VOA. Id. ¶ 18;
. On November 16, 2010, Ms. Farzam informed her supervisor that she had independently attended the award ceremony of a National Medal by President Barack Obama and prepared a report, with exclusive photos, but her supervisor refused to use her report and assigned it to another employee who had not attended the ceremony. Id. ¶ 19;
. The Persian News Network changed Ms. Farzam’s status in January 2011 from essential to non-essential employee without prior notice. She alleges that “[n]on-essential employees can be subjected to reductions in force more easily than essential employees.” Id. ¶ 20
Ms. Farzam contacted an EEO counselor about alleged retaliation on August 18, 2010 and filed a formal complaint on November 19, 2010. Opp’n at 3.
The instant lawsuit was filed on January 10, 2012; Ms. Farzam filed an Amended Complaint on February 7, 2012 before an Answer was filed. The Amended Complaint originally asserted four separate counts: (1) retaliation in violation of the Equal Pay Act of 1963, 29 U.S.C. § 206(d); (2) retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e; (3) breach of the 2008 Settlement Agreement; and (4) unequal pay in violation of the Equal Pay Act, 29 U.S.C. § 2069(d).
On November 21, 2012, pursuant to United States v. Tohono O’Odham Nation, 131 S.Ct. 1723, 1727 (2011), this Court transferred Counts III and IV of the Amended Complaint to the U.S. Court of Federal Claims and retained only Counts I and II. See Farzam v. Isaacson, 905 F.Supp.2d 95 (D.D.C. 2012). Importantly, Counts I and II no longer include Ms. Farzam’s claim that the Board’s alleged breach of the Settlement Agreement was itself a retaliatory act. See Id. at 97 (“Due to this transfer, this Court will not consider facts concerning the breach of the settlement agreement as a basis for retaliation because such facts are based on ‘substantially the same operative facts’ as the breach-of-contract claim.”) (quoting Tohono O’Odham Nation, 131 S.Ct. at 1731). The remaining allegations of retaliation are therefore only those alleged in paragraphs 10-20 of the Amended Complaint, specified above. Because paragraph 10 of the Amended Complaint merely presents a generalized accusation of “additional acts of retaliation, ” however, the focus properly belongs on paragraphs 11-20, analyzed below.
The Board moved for summary judgment on July 18, 2014 which Ms. Farzam opposes. After full discovery and briefing, the matter is ripe for decision.
II. LEGAL STANDARDS
A. Summary Judgment
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall 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); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Moreover, summary judgment is properly granted against a party who “after adequate time for discovery and upon motion . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party’s favor. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than “the mere existence of a scintilla of evidence” in support of its position. Id. at 252. In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). Summary judgment is appropriate if the evidence “is merely colorable, or is not significantly probative, ” Anderson, 477 U.S. at 249-50 (citations omitted), or if the non-movant fails to offer “evidence on which the jury could reasonably find for the [non-movant].” Id. at 252.
District courts use “special caution” when considering summary judgment in employment discrimination or retaliation actions due to “the potential difficulty for a plaintiff . . . to uncover clear proof of discriminatory or retaliatory intent.” Nurriddin v. Bolden, 40 F.Supp.3d 104, 115 (D.D.C. 2014) (citation omitted). “Nevertheless, the plaintiff is not relieved of h[er] obligation to support h[er] allegations with competent evidence.” Id. “As in any context, where the plaintiff will bear the burden of proof at trial on a dispositive issue, at the summary judgment stage, he bears the burden of production to designate specific facts showing that there is a genuine dispute requiring trial.” Mason v. Geithner, 811 F.Supp.2d 128, 175 (D.D.C. 2011) (citing Ricci v. DeStefano, 557 U.S. 557, 585 (2009)).
B. Retaliation Under Title VII
Title VII protects federal employees from retaliation for having asserted their rights. See 42 U.S.C. § 2000e-16(a). To prove unlawful retaliation under Title VII, an employee must establish three elements: (1) that she made a charge or opposed a practice made unlawful by Title VII; (2) that the employer took a materially adverse action against her; and (3) that the employer took the action because of her protected conduct. Allen v. Johnson, 795 F.3d 34, 39 (D.C. Cir. 2015) (citing McGrath v. Clinton, 666 F.3d 1377, 1380 (D.C. Cir. 2012)). The second two elements differ from their discrimination counterparts in important respects.
Retaliatory conduct need not reach the same level of adversity as discriminatory conduct. See generally Mogenhan v. Napolitano, 613 F.3d 1162, 1165-66 (D.C. Cir. 2010) (citing Burlington N. & Santa Fe Railway Co. v. White, 548 U.S. 53, 60-61, 67-68 (2006)). In other words, “Title VII’s substantive [discrimination] provision and its anti-retaliation provision are not coterminous” because the “scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm.” Steele v. Schafer, 535 F.3d 689, 695 (D.C. Cir. 2008) (quoting Burlington N., 548 U.S. at 67). So instead of “affecting the terms, conditions, or privileges of employment, ” as discrimination must, retaliatory conduct need only “dissuade a reasonable worker from making or supporting a charge of discrimination.” Mogenhan, 613 F.3d at 1166 (quoting Burlington N., 548 U.S. at 68). Nonetheless, this material adversity requires “more than ‘those petty slights or minor annoyances that often take place at work and that all employees experience.’” Bridgeforth v. Jewell, 721 F.3d 661, 663 (D.C. Cir. 2013) (quoting Burlington N., 548 U.S. at 68).
Retaliation also differs from discrimination in its causation: retaliation claims must be proved according to traditional principles of but-for causation. Univ. of Tex. SW Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2534 (2013) (“[A] plaintiff making a retaliation claim under § 2000e-3(a) must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer.”). Thus, there is no “mixed motive” retaliation. Cf. EEOC v. Abercrombie & Fitch Stores, Inc., 135 S.Ct. 2028, 2032 (2015) (contrasting Nassar’s but-for standard in the retaliation context with the more “relaxe[d]” standard in Title VII’s mixed-motive discrimination provision, 42 U.S.C. § 2000e-2(m)). However, but-for causation does not mean that retaliation must be the only cause of the employer’s action-merely that the adverse action would not have occurred absent the retaliatory motive. Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 846 & n.5 (2d Cir. 2013) (citing Fowler V. Harper et al., 4 Harper, James and Gray on Torts § 20.2, at 100-101 (3d ed.2007) (collecting cases); W. Page Keeton et al., Prosser and Keeton on Torts § 41, at 264-66 (5th ed.1984)); accord Carlson v. CSX Transp., Inc., 758 F.3d 819, 828 n.1 (7th Cir. 2014).
Finally, retaliation claims based only on circumstantial evidence are subject to the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See Allen, 795 F.3d at 39. The McDonnell Douglas framework proceeds as follows. The plaintiff must first make a prima facie case (1) that she is a member of a protected class; (2) that she suffered materially adverse action; and (3) that the unfavorable action gives rise to an inference of retaliation. Youssef v. F.B.I., 687 F.3d 397, 401-02 (D.C. Cir. 2012); Stella v. Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002); Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999). The burden then shifts to the defendant, which must “articulate some legitimate, non[retaliatory] reason” for its action. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If it does, then the plaintiff must show by a preponderance of the evidence that the reasons advanced by the employer were merely a pretext to hide retaliation. Id.
On a motion for summary judgment, once an employer articulates a legitimate, non-discriminatory reason for its action(s), the plaintiff’s prima facie case is only relevant in the context of the evidence as a whole. Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). “[I]n considering an employer’s motion for summary judgment or judgment as a matter of law in those circumstances, the district court must resolve one central question: Has the employee produced sufficient evidence for a reasonable jury to find that the employer’s asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee on the basis of race, color, religion, ...