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Achagzai v. Broadcasting Board of Governors

United States District Court, District of Columbia

April 20, 2018

TAHER ACHAGZAI, et al., Plaintiffs,
v.
BROADCASTING BOARD OF GOVERNORS, Defendant.

          MEMORANDUM OPINION

          RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendant's motion for summary judgment. Dkt. 67. Five broadcasters at the Pashto Language Service, a division of Voice of America (“VOA”), have made numerous claims alleging workplace discrimination on the basis of age in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”), and on the basis of national origin in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”). The Court previously dismissed or granted summary judgment on the majority of those claims, in addition to denying a motion by two plaintiffs for a preliminary injunction. See Dkt. 24; Dkt. 47; Dkt. 52. In its March 18, 2016 Memorandum Opinion and Order, however, the Court held that four of the claims-discrimination and retaliation, under both Title VII and the ADEA-made by Plaintiff Naseem S. Stanazai survived Defendant's motion to dismiss, and that it was premature to grant summary judgment on those claims without discovery. Dkt. 52 at 33.

         Having completed discovery, Defendant Broadcasting Board of Governors (“the Board”)-the federal agency that administers the VOA-again moves for summary judgment. Dkt. 67. The Board argues that the two employment actions identified in the Court's March 18, 2016 Opinion as potentially giving rise to claims for discrimination or retaliation were not, in fact, “adverse employment actions” as required to prove a claim of discrimination under Title VII and the ADEA, nor were the actions “materially adverse” as required to prove a claim of retaliation under those statutes. In the alternative, the Board argues that Plaintiff has failed to identify any evidence of discriminatory or retaliatory motive.

         For the reasons explained below, the Court concludes that neither of the actions at issue constitutes an “adverse employment action” or “materially adverse action” for purposes of Title VII and the ADEA. Defendant's motion for summary judgment will therefore be GRANTED.

         I. BACKGROUND

         Because the Court has fully set forth the facts of this case in its previous opinions, Dkt. 24; Dkt. 47; Dkt. 52, it relays in detail here only recent developments and those facts directly relevant to the remaining claims. During the times relevant to the present motion, Plaintiff Naseem S. Stanazai was a broadcaster at the Pashto Service of the VOA. Dkt. 25 at 3 (Am. Compl. ¶ 7). He is a naturalized United States citizen of Afghan national origin whose native languages are Pashto and Dari. Id. (Am. Compl. ¶ 6). At the time of the conduct at issue, he was fifty-nine years old and had worked at VOA for twelve years. Id. (Am. Compl. ¶ 8). Defendant Broadcasting Board of Governors is an independent federal agency that oversees all non-military, international broadcasting sponsored by the federal government, including VOA. Id. at 4 (Am. Compl. ¶ 11). Stanazai alleges that he suffered numerous acts of discrimination and hostility after the VOA implemented a “new format” in an effort to modernize its offerings. Id. at 5-7 (Am. Compl. ¶¶ 13-18); Dkt. 68-1 at 1-2. The complaint alleges that these abuses began in 2006 but grew worse when Mohammed Ibrahim Nasar became the Managing Editor of the Pashto Service in 2010. Dkt. 25 at 7 (Am. Compl. ¶ 15). Stanazai asserts that, after he began voicing his displeasure with the various changes, Nasar retaliated and discriminated against him by manipulating his broadcasting schedule to give additional responsibilities to less-qualified colleagues rather than him and to remove him from more desirable assignments. Id. at 9-12 (Am. Compl. ¶¶ 23-25, 28-29, 31-32, 34-35).

         After his supervisors failed to address his concerns, Stanazai sought administrative recourse through Equal Employment Opportunity (“EEO”) counseling with the Board's Office of Civil Rights on March 22, 2013. Dkt. 30-2 at 101. A month later, he filed an administrative discrimination complaint accompanied by an attachment detailing his allegations of discrimination. See Id. at 106. Defendant never issued a final decision on Plaintiff's complaint because Stanazai requested an Equal Employment Opportunity Commission (“EEOC”) hearing before the Board could render a decision. Id. at 3 (McDay Decl. ¶ 11). The EEOC, in turn, dismissed its own proceeding when Plaintiff brought this action. Id. (McDay Decl. ¶ 12).

         The Court issued its first opinion in this case on June 12, 2015. See Achagzai v. Broad. Bd. of Governors, 109 F.Supp.3d 67 (D.D.C. 2015). The Court dismissed several tort claims without prejudice for failure to exhaust administrative remedies, struck the remainder of the original complaint for failure to comply with Federal Rules of Civil Procedure 8 and 12(f), and granted Plaintiffs leave to file an amended complaint. Id. at 72. Plaintiffs did so, see Dkt. 25, and the Board again moved to dismiss or, in the alternative, for summary judgment, Dkt. 30. Just days after the Board's motion was fully briefed, two of the plaintiffs filed a motion for a preliminary injunction, asking the Court to halt further scheduling changes at the Pashto Service. See Dkt. 41. After that motion was fully briefed, the Court held oral argument on all of the pending motions. At oral argument, the Court informed the parties that it would deny the motion for a preliminary injunction, and it subsequently issued a Memorandum Opinion and Order explaining that the two plaintiffs seeking preliminary relief had not satisfied any of the four factors necessary to obtain a preliminary injunction. See Achagzai v. Broad. Bd. of Governors, No. 14-cv-768, 2016 WL 471274 (D.D.C. Feb. 8, 2016). The Court also provided Plaintiffs with two weeks to file a supplemental memorandum “identif[ying] for each of the five plaintiffs discrete acts of discrimination that occurred within 45 days of when they first sought counseling from an EEO counselor.” Minute Order (Feb. 5, 2016). Plaintiffs filed that memorandum on February 19, 2016, see Dkt. 50, and the Board responded on March 1, 2016, see Dkt. 51.

         Shortly thereafter, on March 18, 2016, the Court granted in part and denied in part Defendant's motion to dismiss, or, in the alternative, for summary judgment. See Achagzai v. Broad. Bd. of Governors, 170 F.Supp.3d 164 (D.D.C. 2016). The Court held that four of the plaintiffs failed to exhaust their administrative remedies and, accordingly, granted Defendant's motion as to their claims. Id. at 175-79. As to Stanazai, however, the Court held that he had timely exhausted his administrative remedies with respect to two incidents and that those events at least plausibly gave rise to claims for disparate treatment and retaliation under both Title VII and the ADEA. Id. at 180-85. Concluding that the record available at the time did not conclusively resolve whether those incidents constituted “adverse employment actions” as required by the statutes, the Court denied the Board's motion in part, id. at 185, and ordered the parties to conduct discovery followed by a second round of summary judgment briefing, Minute Order (Apr. 15, 2016). Plaintiffs sought reconsideration of the Court's March 18, 2016 decision, which the Court denied on May 9, 2016. See Dkt. 57; Dkt. 59.

         The Court's previous opinions have thus substantially narrowed the issues in controversy. Only two alleged events arguably support Plaintiff's remaining claims. First, on February 5, 2013, Nasar-Stanazai's direct supervisor-asked Stanazai to translate three minutes of Pashto audio into English. Dkt. 30-2 at 117. Stanazai told Nasar that he could not complete the assignment in the time he was initially given.[1] Id. Nasar then emailed Masood Farivar-the head of the Pashto service at the time and Nasar's direct supervisor, Dkt. 67-13 at 2-3-asserting that he had “asked Stanazai to translate” the three minutes of audio, but that “Stanazai ha[d] refused to do it, ” despite “having two and [a] half hours before he complete[s] his shift, ” Dkt. 67-11 at 3. Nasar copied Stanazai on the email, who then replied that he had not in fact refused to do the translation, but rather requested more time because of the amount of other work he had that afternoon. Id. Nasar, in turn, responded by detailing the work he believed that Stanazai had to complete that day and the time he thought necessary to do so, stating that any difficulty in managing the tasks could “come[] only when one does not take his job serious[ly].” Id. at 2-3. Stanazai replied again, further explaining his position regarding the time the assignment required and his competing obligations. Id. at 2. He added, “[r]easoning about time and prioritizing it[] does not mean refusing an assignment.” Id. At Farivar's request, the three met the following day to discuss the issue, at which point Nasar allegedly stated-to Stanazai's “surprise”-that he had not intended to send the email in question, and Farivar urged collegiality. Dkt. 30-2 at 130.

         The second relevant event occurred on February 25, 2013. That day, Nasar issued a new schedule for the broadcasters. Dkt. 67-3 at 8. The Pashto Service broadcasted seven days a week, with each broadcast “day” consisting of four one-hour blocks. Dkt. 67-7 at 2-3. For each block, broadcasters could be assigned to one of several roles. Id. At the time of the February 25 schedule, the only role relevant to the claims still in controversy was called “shift editor.” Dkt. 68-2 at 3. Stanazai attests that shift editors were responsible for “editing and managing the team on . . . daily assignments.” Id. Elsewhere he describes the position as “supervisory, ” Dkt. 25 at 26, and states that “the shift editor's job [was] to assign [broadcasters] any job he deemed necessary to be done, ” Dkt. 30-2 at 118. The Board describes the shift editor's responsibilities slightly differently, stating that the “role was to conduct a second-level review and edit of all copy before it was read on the air and to serve as a point of contact for the [M]anaging [E]ditor to move the programming forward.” Dkt. 67-1 at 9; see also Id. at 23 (stating that the role “consisted of editing copy, coordinating the program, and delivering reports to the master of ceremonies”).

         In a deposition, however, Stanazai substantially agreed with the Board. He stated that, even while serving as shift editor, he had not formally held a supervisory position, that the “[s]hift editor's job is to basically copy edit the news and other feature stories, ” and that the responsibilities of the shift editor were generally not any different from copy editing. Dkt. 67-4 at 28. Indeed, “[t]he shift editor, usually, and the copy editor were almost the same, ” with the possible exception that, at times, the shift editor would “assign other jobs to others.” Id. at 28- 29. Both sides acknowledge that “shift editor” was not a formal position into which people were hired, but rather a set of responsibilities assigned to individuals whose formal position was “broadcaster, ” a non-supervisory role. Id. at 27; Dkt. 67-1 at 23-24; Dkt. 67-5 at 2-4.

         Stanazai's current claims center on the distribution of shift editor assignments. For at least ten months prior to the February 25 schedule, Stanazai was assigned to be the shift editor for a one-hour block on Friday evenings and a one-hour block on Saturday evenings. Dkt. 67-8 at 2-3; Dkt. 67-3 at 25. One of Stanazai's fellow broadcasters, Abid Noor, was assigned to be a shift editor for six one-hour blocks spread across Sundays, Mondays, and Tuesdays. Dkt. 67-8 at 2-3. After the implementation of the February 25 schedule, however, Stanazai was assigned to be shift editor for two one-hour blocks on Saturdays. Dkt. 67-7 at 2. Noor, in contrast, was assigned to be a shift editor for ten one-hour blocks, with two each day, Sundays through Thursdays. Id.

         Almost immediately after the February 25 schedule was issued, the staff voiced their displeasure at the distribution of assignments. Stanazai's concern was that he “was reduced to only one day” as shift editor each week, while Noor was given five days with shift editor assignments. Dkt. 67-3 at 25. Stanazai also disputed Noor's qualifications for the assignment, suggesting that Noor lacked the proper language skills to copy edit stories. Id. As a result of this and other staff discontent, Nasar met with the broadcasters on March 5, 2013, to receive input on a new schedule. Dkt. 67-2 at 2; Dkt. 68-1 at 2-3. Following this discussion, a new schedule was issued on April 10, 2013. Dkt. 67-3 at 25; Dkt. 67-9. The new schedule eliminated the “shift editor” assignment based on staff feedback, and instead split the duties of that role between a “copy editor” and a “coordinator.” Dkt. 67-2 at 2; Dkt. 67-6 at 17. The April 10 schedule assigned Stanazai the copy editor role for eight one-hour blocks and made him the backup copy editor for two one-hour blocks. Dkt. 67-9 at 2-3. Noor was scheduled for six one-hour blocks as coordinator, but no shifts as copy editor. Id. A further schedule issued on July 8, 2013, left Stanazai's schedule and responsibilities unchanged.[2] Dkt. 70-1 at 2-3.

         II. ...


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