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Stanazai v. Broadcasting Board of Governors

United States District Court, District of Columbia

March 5, 2019




         The matter is before the Court on Defendant Broadcasting Board of Governors' (“the Board”) motion for summary judgment. Dkt. 15. Plaintiff Naseem Stanazai, an international broadcaster with the Pashto Language Service, is suing the Board, a federal agency that administers the Voice of America (“VOA”), for unlawful discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Age Discrimination in Employment Act of 1967 (“ADEA”). This is one of five cases brought on behalf of a group of international broadcasters alleging that the Board has engaged in a pattern of discrimination against them based on their age, national origin, and protected equal employment opportunity (“EEO”) activity, including a prior case in which Stanazai asserted claims similar to the ones he raises here.[1] For the reasons set forth below, the Court will GRANT in part and DENY in part the Board's motion for summary judgment.

         I. BACKGROUND

         Plaintiff Naseem Stanazai is a 65-year-old employee of the Pashto Language Service, a division of the VOA. Dkt. 15-6 at 1-2 (EEO Counselor's Rpt.). At the time of filing this lawsuit, he was employed by the VOA as an international broadcaster/copy editor and compensated at General Schedule pay scale (“GS”) level 12. Id. at 1 (EEO Counselor's Rpt.); see also Dkt. 15-2 at 1 (SUMF ¶ 2).

         This is not the first case that Stanazai has filed before this Court concerning his employment with the Pashto Language Service. In 2014, Stanazai and four other international broadcasters sued the Board, alleging that they had been subjected to disparate treatment, retaliation, and a hostile work environment on the basis of their age, national origin, and protected EEO activity, in violation of Title VII and the ADEA. See Achagzai v. Broadcasting Bd. of Governors, 170 F.Supp.3d.164, 169-70 (D.D.C. 2016) (Achagzai II). Stanazai claimed, in particular, that, “after he began voicing his displeasure with . . . various changes” that the VOA instituted as part of its “New Format, ” the then-Managing Editor of the Pashto Language Service, Mohammed Ibrahim Nasar, “retaliated and discriminated against him by manipulating his broadcasting schedule to give additional responsibilities” to younger, “less-qualified colleagues” and by “remov[ing] him from more desirable assignments.” Achagzai v. Broadcasting Bd. of Governors, 308 F.Supp.3d 396, 400 (D.D.C. 2018) (Achagzai III). The Court entered summary judgment in favor of the Board on the ground that none of the “actions at issue constitute[d] an ‘adverse employment action' or ‘materially adverse action' for purposes of Title VII and the ADEA.” Id. at 399.

         It is difficult to pinpoint the precise acts or decisions that Stanazai challenges in the current lawsuit. He alleges that the VOA “implemented a change in policy” known as the “New Format” in 2010 and that this policy has, generally, harmed “senior staff” and, specifically, “resulted in excluding [him] from being considered for any of the management positions for which he applied, even though he [has been] tasked with carrying out the management tasks, without the promotion.” Dkt. 1 at 4 (Compl. ¶ 5). He further alleges that VOA management “tried to force [him] to retire, ” subjected him “to a hostile work environment, ” refused to promote him to a GS 13 level “during a benchmarking session in 2016/2017, ” and failed to promote him to various management positions in 2010, 2013, 2014 and 2015. Id. at 4-5 (Compl. ¶¶ 6-13). Then, in what appears to be his operative factual allegation, Stanazai alleges:

Mr. Stanazai was continuously discriminated against based on his national origin, age, and sex (male) and in reprisal for participating in protected EEO activity, when as of October 7, 2016, again he was treated less favorably than[] similarly situated employees when he was overlooked for all positions that came available to include an employee who lacked the necessary qualifications for the position.

Id. at 6 (Compl. ¶ 15) (emphasis added).

         Although Stanazai refers to his national origin and sex in his factual allegations, his substantive claims refer only to his age and protected EEO activity. Count One alleges that the Board discriminated against him based on his age in violation of Title VII “by subjecting him to constant harassment, work conditions which were humiliating and by [attempting to] forc[e] him to retire before he [was] ready to retire, ” and by “creating a schedule that [he] could not perform.” Id. (Compl. ¶¶ 16-17). He further alleges that, when he “complained to management[, ] he was retaliated against with [an] even more difficult and straining schedule.” Id. (Compl. ¶ 17). Count Two alleges that the Board “intentionally discriminated against [Stanazai] because of his age in violation of the ADEA by subjecting him to conditions and terms of employment that were not enforced on younger employees.” Id. at 7 (Compl. ¶ 20). In particular, Stanazai alleges that “[y]ounger employees were promoted over him” as a result of “[t]he [N]ew [F]ormat, ” and that “management harassed and targeted the senior staff” and attempted “to force them to . . . leave their positions.” Id. (Compl. ¶¶ 20-22). Finally, Count Three alleges that he was subjected to unlawful retaliation for engaging in protected EEO activity in violation of the ADEA.[2] Id. at 7-8 (Compl. ¶¶ 24-25, 27-28). Stanazai fails to single out any specific acts that, in his view, constituted unlawful retaliation but, instead, alleges that the Board's conduct, “in its totality and cumulative manner, ” rises to the level of “unlawful, direct, intentional, adverse, tangible, retaliatory and discriminatory employment actions prohibited by the ADEA.” Id. at 8 (Compl. ¶ 27).

         Stanazai's administrative EEO complaint provides some additional clarity regarding the substance of his current claims. Before Stanazai filed his formal, administrative complaint, the EEO counselor assigned to the dispute described Stanazai's claim of discrimination as follows:

He alleges that on October 7, 2016, he was not selected by Mr. Akbar Ayazi, Director, VOA Asia Division, South and Central for any position on the new management of the VOA Afghan. Two of his colleagues were promoted. One, Ms. Shaista Sadat Lamih (female; Afghanistan descent; Islam) was promoted to [m]anaging [e]ditor and her position was not announced before her appointment on October 7, 2016. Another, Ms. Lina Rozbih (female; Afghanistan descent; Islam) was promoted to the position vacated by Ms. Lamih. . . . [H]e [also] applied for the job which Ms. Rozbih[] got, but he was unsuccessful.
Mr. Stanazai alleges that, despite his education and experience, he was not given the opportunity to be promoted. He alleges that he was discriminated against because he is in active litigation in a prior EEO complaint against [the Board] based on race and age. He alleges that the current issues relate back as early as 2010 and into his 2013 complaint allegations. Therein, he related that he had sought upward mobility for years because of his nationality and age, and now, in retaliation for complaining, again he has been overlooked for promotion.

Dkt. 15-6 at 2-3 (EEO Counselor's Rpt.); see also Id. at 7 (EEO Counseling Issues Presented).

         Stanazai's formal EEO complaint repeats this characterization of his claim. He alleged that he “was overlooked” for a managerial position when, on October 7, 2016, the VOA announced a “new service management structure.” Dkt. 15-7 at 2. Instead, one of the “position[s] of [m]anaging [e]ditor went to Shaista Sadat Lamih, ” and, before that, “the other position of [m]anaging [e]ditor went to Lina Rozbih.” Id. Stanazai further claimed that Rozbih was not qualified for the managing editor position; that, although Stanazai had applied for the position, he was “never given any consideration for the promotion;” that Lamih was “secretly promoted;” and that the deciding official declined to ...

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