UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NASEEM S. STANAZAI,

Plaintiff,

v. Civil Action No. 17-2653 (RDM) BROADCASTING BOARD OF GOVERNORS,

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff Naseem Stanazai, an international broadcaster with the Pashto Language

Service, is suing the Broadcasting Board of Governors (“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”), 42 U.S.C. § 2000e-2(a), and the Age Discrimination in

Employment Act of 1967 (“ADEA”),

et seq. The Board (now called the U.S.

Agency for Global Media) previously moved for summary judgment, Dkt. 15, and the Court

granted the Board’s motion with respect to all of Plaintiff’s claims except one: his claim that he

was not offered a senior editor position in retaliation for his protected Equal Employment

Opportunity (“EEO”) activity, Dkt. 21. With respect to that claim, the Court observed that

Plaintiff had exhausted his administrative remedies; that his Complaint could reasonably be

construed to include the claim; and that the Board simply failed to address that one claim in its

motion for summary judgment.

at 13–14.

After having taken discovery, the Board now moves for reconsideration of the Court’s

earlier decision,

or, in the alternative, for summary judgment. Dkt. 31. The Board’s central argument is that, during his deposition, Plaintiff “disavowed any claim of retaliation regarding

the senior editor assignment.” Dkt. 34 at 1; see also Dkt. 31-1 at 7. For the reasons that follow,

the Court DENIES the Board’s motion for reconsideration or, in the alternative, for summary

judgment, Dkt. 31.

I. BACKGROUND

Plaintiff Naseem Stanazai is an international broadcaster for VOA assigned to the Afghan

Service (“Service”) who, at the time of the events giving rise to the Complaint, was compensated

at the GS-12 level. Dkt. 31-2 at 1 (Def.’s SUMF ¶ 2). In 2016, the Afghan Service came under

new leadership, and the new acting Chief, Akbar Ayazi, proposed a restructuring.

at 1–2

(Def.’s SUMF ¶¶ 4–6). Until that time, the Afghan Service had four divisions: (1) Dari language

radio; (2) Pashto language radio; (3) Dari and Pashto television; and (4) digital.

(Def.’s

SUMF ¶ 5). Ayazi reorganized the radio and television divisions to be divided by language,

rather than format.

(Def.’s SUMF ¶ 7). As a result of the restructuring, Ayazi reassigned

Lina Rozbih and Shaista Sadat Lami to serve as the managing editors of the Dari radio and

television service and the Pashto radio and television service, respectively.

(Def.’s SUMF

¶¶ 8–9). Each had previously been compensated at the GS-13 level and would continue to be

compensated at that level.

Ayazi also asked two individuals to serve as “senior editors” for

each newly organized team.

(Def.’s SUMF ¶ 10). Plaintiff’s Complaint alleges that he had

“applied for several management positions that became available, but was denied, as reprisal for

his” prior protected EEO activity. Dkt. 1 at 5 (Compl. ¶ 13) (emphasis added).

The Board previously moved for summary judgment on the grounds that (1) “there was

no managing-editor position that was vacant or for which [Plaintiff] was qualified” and

(2) Plaintiff had failed to exhaust his administrative remedies. Dkt. 15-1 at 8. The Court agreed

2 and granted summary judgment on all of Plaintiff’s claims, except for his claim that he had been

passed over for one of the four senior editor positions in retaliation for his prior EEO activity.

Dkt. 21 at 13. Relying on the Plaintiff’s allegation that he had “applied for several management

positions,” the Court understood Plaintiff to be alleging that both his non-selection for a

managing editor position and his non-selection for a senior editor position were retaliatory.

Because the Board’s motion did not address the senior editor positions, that claim survived.

During discovery, Plaintiff was asked at his deposition to name all of the management

positions which he was claiming that he had been unlawfully denied. Dkt. 31-3 at 9:4–17:6;

21:10–26:14 (Stanazai Dep.). Plaintiff listed a series of positions—web editor, managing editor,

and Chief of the Afghan Service—but did not mention the senior editor position.

When

pressed, Plaintiff reiterated that those positions were “all of the positions that [he was] claiming,

in this case, that [he] w[as] improperly denied.”

at 17:3–6 (Stanazai Dep.). In light of this

testimony, the Board now moves for reconsideration of the Court’s opinion on its prior motion

for summary judgment or, in the alternative, for summary judgment. Dkt. 31.

II. ANALYSIS

There are two issues to resolve here: first, whether Plaintiff is pursuing a non-selection

claim based on the senior editor position; and second, if so, whether the Board is entitled to

summary judgment on that claim as a substantive matter. The Court addresses each issue in turn.

1. Abandonment

The Board first argues that Plaintiff is no longer pursuing the only claim that his

Complaint adequately alleged: retaliation based on non-selection to the senior editor position.

Dkt. 31-1 at 9 (“The Court should reconsider its prior decision denying the [Board’s] summary

judgment on a retaliation claim for nonselection as a senior editor because Stanazai asserts no

3 such claim in this case.”). In support of this argument, the Board principally points to Plaintiff’s

deposition testimony, in which Plaintiff purportedly disavowed pursuing a senior-editor claim.

In pertinent part, that testimony is recounted here:

Q. Okay. I want to turn your [Plaintiff’s] attention to paragraph number 13 [of the operative Complaint]. This is on page 5. 1

A. Okay.

Q. That[] says that Mr. Stanazai applied for several management positions that became available, but was denied as reprisal for his EEO complaints. Did I read that correctly?

A. Yeah.

...

Q. And now going to paragraph 9, you refer to a managing editor position that you say you applied for on or about 2010; correct?

A. Yes.

Q. Is that one of the management positions you’re referring to in paragraph 13?

A. Yes.

Q. And [in] paragraph 10, you refer to a position as the chief of Afghan Service that you say you applied to or that you were not selected for in 2013; correct?

A. That’s right.

Q. And is that one of the management positions you’re referring to in paragraph 13?

A. That’s right.

Q. Then in paragraph 11, you refer to a managing editor position that went to Ms. Lami[] in 2014/2015; correct?

1 Paragraph 13 reads: “Mr. Stanazai applied for several management positions that became available, but was denied, as reprisal for his EEO complaints.” Dkt. 1 at 5 (Compl. ¶ 13). 4 A. That’s right.

Q. Is that one of the positions you’re referring to in paragraph 13?

A. That is one of the positions[.]

...

Q. Okay. And there’s also a managing editor position referred to in paragraph 12; correct?

A. That’s right.

Q. Is that also one of the management positions referred to in paragraph 13?

A. Yeah.

...

Q. So going back. Other than the positions described in paragraphs 9 [managing editor position], 10 [chief of Afghan Service], 11 [managing editor position], and 12 [managing editor position] of your complaint in addition to the managing editor position in 2006, are there any other management positions that you’re referring to in paragraph 13?

A. Not that I remember right now, but those were the main positions.

...

Q. All right. I’m just trying to get a sense of your claims in the case.

A. Okay.

Q. And so those are the management positions that you claim you were improperly denied; is that correct?

A. That’s right.

Q. And those are all of the positions that you’re claiming, in this case, that you were improperly denied; is that correct?

A. That’s right.

Dkt. 31-3 at 9:4–17:6 (Stanazai Dep.) (emphasis added).

5 Shortly after this exchange, Plaintiff was handed a copy of an email sent by Ayazi to him

and others on October 7, 2016.

at 17:10–11, 19:22–25 (Stanazai Dep.); see also Dkt. 15-3 at

4 (Ayazi email). The email, bearing the subject line “New Afghan service management

structure,” detailed a series of personnel changes that would become “effective immediately” at

the Service. Dkt. 15-3 at 4. The changes affected the following positions: “acting service chief

of the Afghan service;” managing editor of “the Dari team TV and radio;” managing editor of the

Pashto team; special project coordinator of the Afghan Service; executive producers of the

Afghan Service; web editor of the Dari website; and senior editors of the Dari and Pashto teams.

at 4–5. The Board’s counsel allowed Plaintiff to review the document, after which the

following exchange occurred:

Q. Mr. Stanazai, you’ve had an opportunity to review Exhibit 2 in detail?

A. Yes, sir.

Q. And my question to you was other than the two managing editor positions that we just discussed, are there any other positions or responsibilities mentioned in this e-mail that you think should have gone to you?

A. From the beginning when the web was started and launched in the Afghan Service, I was –

Q. Well, first answer my question.

A. That’s the question – the answer. I was helping the web, so – but I was not considered for it. I was editor of web material, but I was not considered for that.

...

Q. And are you saying that you think you should have been the web editor of the Dari website?

A. Or at least I should have been one of the editors[.]

...

6 Q. So you’re saying you felt like you should have been a web editor of a Pashto website?

A. (Witness shrugs.)

Q. You just shrugged?

A. Yeah. Basically, my complaint is – my claim is about the two managing editor positions, Dari and Pashto.

Q. Okay.

...

Q. So your claim in this case –

A. Yeah.

Q. Is about those two managing editor positions?

A. Yeah. But –

Q. And not any of the other –

THE REPORTER: I cannot write – you need to let him finish.

BY MR. WALKER:

Q. Your claim in this case is about the two managing editor positions?

A. Yeah.

Q. Not any of the other responsibilities in this e-mail?

A. No . . . .

Q. But I just want to be clear about what you’re [sic] claims are in this case. So –

A. Okay. As far as the claim is going on, I claimed about Dari managing editor and Pashto managing editor.

Q. And those are the positions that went to Ms. [Rozbih] and Ms. [Lami]?

A. Yeah.

7 Q. And as far as this e-mail and this restructuring . . . . As far as the positions mentioned in e-mail are concerned, those two managing editor positions are the only positions that are the subject of your claims in this case?

A. That’s right.

Dkt. 31-3 at 22:23–26:14 (Stanazai Dep.) (emphasis added).

The Board relies on these passages from Plaintiff’s deposition to press the following

point: No reasonable jury could find that Plaintiff was unlawfully denied a position that he does

not claim he was improperly denied. The four senior editor positions, recall, are what remain of

Plaintiff’s retaliation claim. Dkt. 21 at 13. But when asked if “all of the positions that he [is]

claiming . . . that [he was] improperly denied” were limited to positions of managing editor and

Chief of the Afghan Service—neither of which are senior editor positions—Plaintiff responded,

“[t]hat’s right.” Dkt. 31-3 at 17:3–6 (Stanazai Dep.); see also

(Stanazai Dep.).

Plaintiff’s counsel did not seek to clarify any of these statements on redirect.

at 62:4–75:18

(Stanazai Dep.). And so, says the Board, it should prevail here: After all, how could Plaintiff

succeed on a claim that he admits he is not bringing?

The question is rhetorical. But an attempt at answering it shows why the Board’s reliance

on Plaintiff’s deposition, despite its surface appeal, must fail. The Board’s argument is

essentially that Plaintiff abandoned his senior-editor claim during his deposition. 2 See Dkt. 31-1

at 3 (“[T]he only claim the Court allowed to go forward is not in fact a claim at all . . . .”). But

the doctrine of abandonment-by-deposition is not on such sure footing.

2 Beyond its recitation of the standard for reconsideration, the Board cites no legal authority in its opening brief’s first argument section, which asserts that Plaintiff no longer “claim[s] that the [Board] retaliated against him by not assigning him as senior editor in 2016.” Dkt. 31-1 at 9. Nor does the Board’s reply brief cite any legal authority addressing the standard for abandonment of a claim. Dkt. 34. The Board simply reiterates that Plaintiff “asserts no claim whatsoever regarding the senior editor assignment.”

. 8 To start, as Judge Walton has persuasively explained, “nothing in the Federal Rules of

Civil Procedure specifically provides for the abandonment of an individual legal claim through

deposition testimony.” Lemmons v. Georgetown Univ. Hosp.,

(D.D.C. 2007).

To the contrary, the Rules limit the mechanisms by which since-answered complaints may be

modified: Rule 41, for example, “allows plaintiffs to voluntarily dismiss an action without

permission of the Court ‘by filing a stipulation of dismissal signed by all parties who have

appeared in the action,’”

at 30 (quoting Fed. R. Civ. P. 41(a)(1)), while Rule 15 allows

“motions for leave to amend [that are] made in writing and . . . ‘set forth with particularity the

relief requested and the grounds supporting the request,’”

(quoting 3 James Wm. Moore et al.,

Moore’s Federal Practice § 15.17 (4th ed. 2006)). Neither Rule is at play here.

It is true, as Lemmons observed, that “some courts do recognize the possibility that a

claim might . . . be expressly and unilaterally abandoned during discovery if certain conditions

are met.” Id. at 30–31. That is because one purpose of discovery is to enable the parties “to

disclose more precisely the basis of both claim and defense and to define more narrowly the

disputed facts and issues.” Kingman Park Civic Ass’n v. Williams,

(D.C.

Cir. 2003); see also Oppenheimer Fund, Inc. v. Sanders,

(1978) (“[D]iscovery

itself is designed to help define and clarify the issues.”). The D.C. Circuit, however, “has never

recognized, nor even discussed, the propriety of this sort of” abonnement-by-discovery.

Lemmons,

. Given the long history of the use of depositions to explore the

contours of a plaintiff’s claims, that alone counsels caution.

So too do the decisions that have addressed the type of abandonment that the Board

seeks. Lemmons again: in the “cases where abandonment has occurred, courts have almost

uniformly founded such a determination on (1) an explicit and unambiguous statement by the

9 plaintiff that a particular claim was no longer being brought or (2) factual assertions made in

discovery, usually during deposition testimony, that contradict or otherwise fatally undermine

the factual predicate for one or more of the plaintiff’s legal claims as articulated in the

complaint.”

Thus in Versarge, for example, a plaintiff abandoned a claim for monetary

damages when the plaintiff’s counsel stated during the plaintiff’s deposition that “[w]e’ve

abandoned that claim.” Versarge v. Township of Clinton, N.J.,

, 1363 & n.1 (3d

Cir. 1993). This is not such a case.

Plaintiff’s briefing, declaration, deposition testimony, counterstatement of material facts,

and interrogatory response, each suggest, in some way, that Plaintiff’s senior-editor claim

remains alive. To be sure, Plaintiff’s Complaint is not the picture of clarity, merely averring that

he “applied for several management positions that became available, but was denied, as reprisal

for his EEO complaints.” Dkt. 1 at 5 (Compl. ¶ 13). But, as the Court previously noted, use of

the word “several” suggests that the Complaint takes aim at more than the two managing editor

positions. Dkt. 21 at 13; see also Several, Merriam-Webster.com, https://www.merriam-

webster.com/dictionary/several (last visited Oct. 14, 2020) (defining “several” to mean “more

than two but fewer than many”). Plaintiff, moreover, was explicit about this in his brief in

opposition to the Board’s prior motion for summary judgment: “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 . . . .” Dkt. 17-1 at 3 (emphasis added). The senior editor positions were among

the positions that were available as of October 7, 2016. Dkt. 15-3 at 4–5. Plaintiff’s

accompanying declaration was even clearer: “I believe Mr. Ayazi followed his discriminatory

10 and retaliatory policy against me [when] he promoted junior staff to senior editor such as Hasib

Alikoza[i] and Hafiz Assefi,” and “Mr. Ayazi according to his own email . . . did reassign four

individuals of GS12 to senior editor positions which provide[d] them [with] opportunities for

future promotion to GS13.” Dkt. 17-5 at 4–5 (First Stanazai Decl.) (emphasis added); see also

Dkt. 15-3 at 4–5 (“I have asked Ahmad Sear Zia and Hafiz Assefi to serv[e] as senior editors of

the Dari team and Roshan Noorzai and Hasib Alikozai to serve as senior editors for the Pashto

team.”).

Plaintiff’s response to the Board’s pending motion for summary judgment is to the same

effect. His brief, once again, asserts that he “applied for several management positions that

became available, but was denied, as reprisal for his EEO complaints” and that, “as of October 7,

2016 . . . he was treated less favorably than[] similarly situated employees when he was

overlooked for all positions that came available.” Dkt. 33-1 at 2 (emphasis added). Beyond that,

his brief asserts that “four other less qualified individuals were promoted from GS 12 pay scale

to GS 13 as senior copy editors while overlooking and not selecting [Plaintiff].” Id. at 11. And,

albeit without citing any record evidence, Plaintiff disputed the Board’s assertions that he

(1) “did not apply to be a senior editor as part of the reassignments,” (2) “does not have reason to

believe that he was improperly denied the position of senior editor as part of the October 2016

reassignments,” and (3) “claims only that he was retaliated against in being denied the managing

editor assignments that went to Ms. Rozbih and Ms. Lami.” Compare Dkt. 31-2 at 3 (Def.’s

SUMF ¶¶ 11–13) with Dkt. 33-2 at 1–2 (Pl.’s Resp. to Def.’s SUMF ¶ 2). Plaintiff backs up

these denials with his second declaration, which attests that he has “always sought a senior editor

assignment/position” but was “not . . . given the opportunity because” his “employer retaliated

against” him for “complain[ing].” Dkt. 33-5 at 1 (Second Stanazai Decl.) (emphasis added).

11 Plaintiff further attests that he “applied for positions every time they came up” and that “Mr.

Ayazi actually never even bothered to advertise or tell us about the restructuring which is the

same as new positions.” Id. at 2; see also Dkt. 15-3 at 2 (Ayazi Decl. ¶ 9) (acknowledging that

the October 2016 senior editor positions were “not advertise[d]” and were not filled via “a

competitive hiring process”). Plaintiff’s deposition testimony also reveals that he applied for a

senior copy editor position in late 2015 or early 2016 and that Ayazi “later on” assigned “people

like Roshan and Hasi[b] and As[se]fi in there” and eventually promoted them to “GS-13 through

. . . benchmarking,” while “eliminat[ing]” Plaintiff from consideration in retaliation for his

protected EEO activity. Dkt. 31-3 at 32:19–35:10 (Stanazai Dep.).

Finally, Plaintiff’s response to the Board’s interrogatory asking Plaintiff to “[i]dentify

each and every position that [he] contend[s] that [he was] passed over” for does not support the

Board’s theory of abandonment. Dkt. 31-4 at 7 (Pl.’s Resp. to Def.’s Interrogatories). Although

once again not a picture of clarity, Plaintiff responded the he “applied for several management

positions that became available, but was denied as reprisal for his EEO complaints”—the same

phrase, word-for-word, that appears in Plaintiff’s Complaint and that the Court has already

construed reasonably to encompass the senior editor position. Id.; see also Dkt. 21 at 13–14. On

balance, then, the record is shorn of the “explicit and unambiguous evidence” needed to sustain

an argument of abandonment. Lemmons,

(emphasis omitted). 3

3 Two words of caution are in order. First, the Court construes the parties’ statements of material “facts” regarding Plaintiff’s pursuit of the senior-editor claim as raising legal not factual assertions. Were it otherwise, Plaintiff’s counterstatement of “dispute[]”—unsupported by any record citations—might fail to satisfy the dictates of Rule 56(c)(1), see Fed. R. Civ. P. 56(c)(1) (“A party asserting that a fact . . . is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record . . . or showing that the materials cited do not establish the absence . . . of a genuine dispute . . . .”), and Local Rule 7(h)(1), see Loc. Civ. R. 7(h)(1) (“An opposition to [a motion for summary judgment] shall be accompanied by a separate concise statement of genuine issues setting forth all material facts as to which it is contended 12 The Court recognizes that it might be possible to read Plaintiff’s concessions at his

deposition as raising not a legal question, but a factual one—whether, as a matter of fact,

Plaintiff was improperly denied the position of senior editor. But that reading is hardly

compelled. Accordingly, a reasonable jury could conclude that Plaintiff’s statements related to

the legal nature of his claim, and the question of legal abandonment is for the Court, not the jury.

The Court must, accordingly, reject the Board’s contention that Plaintiff’s deposition testimony

requires the entry of summary judgment. Were the questions at deposition posed in

unmistakably factual terms—for example, “did you ever express an interest in assignment to a

senior editor position” or “why do you believe that you were denied a senior editor position

because of your protected EEO activity”—the Board would stand on firmer ground. But as

framed, and particularly given the Board’s counsel’s reliance on the Complaint to guide the

deposition, Plaintiff could have (and likely did) understand the questions to inquire about what

legal claims he was asserting in the Complaint, and, for the reasons explained above, a legal

there exists a genuine issue necessary to be litigated, which shall include references to the parts of the record relied on to support the statement.”), notwithstanding the testimony and declarations discussed above. Second, to the extent Plaintiff relies on his second declaration to contradict any statement made in his deposition, Plaintiff is reminded that “[c]ourts have long held that a party may not create a material issue of fact simply by contradicting its prior sworn testimony.” Pyramid Sec. Ltd. v. IB Resolution, Inc.,

(D.C. Cir. 1991). This rule, to be sure, applies only if the contradiction is “clear;” a later attempt to ‘“clarify confusing or ambiguous [prior] testimony’” does not implicate the rule. Johnson v. Shinseki,

(D.D.C. 2011) (quoting St. Paul Mercury Ins. Co. v. Capitol Sprinkler Inspection, Inc.,

(D.D.C. 2008) (subsequent history omitted)). But when the conflict is clear, unless a “party can offer persuasive reasons for believing the” new testimony—for example, that the new testimony “is more accurate than the prior testimony,” Shinseki,

, or that “new evidence” has come to light, St. Paul Mercury, 573 F. Supp. 2d at 161—the prior testimony controls, Shinseki,

. A plaintiff, in short, “cannot receive Defendant’s motion for summary judgment and then go in search of new evidence with which to attack Defendant’s arguments. This contradicts the very notion of a discovery process.” Galvin v. Eli Lilly & Co.,

(D.C. Cir. 2007). 13 claim is not so easily abandoned, particularly where there is good reason to believe that the

witness has not made an informed decision, in consultation with counsel, to abandon the claim.

2. Prima Facie Case

The Court must also consider whether the Board is entitled to summary judgment as a

substantive matter. Without deciding whether the Board would be able to make the requisite

showing on the existing factual record, the Court concludes that the Board’s cursory discussion

of the question does not suffice to dispose of Plaintiff’s claim.

To succeed on a retaliation claim based on non-selection, a plaintiff “must show that he

engaged in protected conduct; that his employer took an adverse personnel action; and that a

causal connection existed between the two.” Dkt. 21 at 12 (quotation marks omitted).

Moreover, “[w]here, as here, the plaintiff claims that the retaliation took the form of a failure to

hire [or promote], the plaintiff must also show . . . that he applied for an available job; and . . .

that he was qualified for that position.” Morgan v. Fed. Home Loan Mortg. Corp.,

(D.C. Cir. 2003). If the plaintiff succeeds in making this prima facie showing, the burden

then shifts to the employer to provide a “legitimate, nondiscriminatory or non-retaliatory reason

for the challenged action.” Morris v. McCarthy,

(D.C. Cir. 2016). “Once the

employer proffers a non-retaliatory reason for the challenged employment action, the burden-

shifting framework falls away, and the ‘central question’ becomes whether ‘the employee

produced sufficient evidence for a reasonable jury to find that the employer’s asserted

nondiscriminatory [or non-retaliatory] reason was not the actual reason and that the employer

intentionally discriminated [or retaliated] against the employee.’” Allen v. Johnson,

(D.C. Cir. 2015) (quoting Brady v. Office of Sergeant at Arms,

(D.C. Cir.

2008)).

14 Here, the Board does not contest that Plaintiff “engaged in protected conduct,” Dkt. 21 at

12, or that he was “qualified for th[e] position” of senior editor, Morgan,

. Nor

does the Board’s motion dispute that Plaintiff suffered “an adverse personnel action.” Dkt. 21 at

12. What remains of the prima facie case, then, is (1) whether “a causal connection existed

between” Plaintiff’s non-selection and his protected activity,

(quotation marks omitted), and

(2) whether Plaintiff “applied for an available job,” Morgan,

. The Board

contends that Plaintiff’s retaliation claim faulters on both prongs. It fails to offer a convincing

account, however, on either.

First, the Board challenges causation, but merely asserts: “because Stanazai does not

claim that he was not assigned to the senior editor positions for retaliatory reasons . . . he cannot

make out a prima facie case of retaliation.” Dkt. 31-1 at 10. There may be some reason to doubt

whether Plaintiff can establish the required causal connection, but the single sentence offered by

the Board is not it. As explained above, the Court concludes that Plaintiff has alleged—and

maintains—that Ayazi failed to offer him one of the senior editor positions in retaliation for his

protected EEO activity. Of particular relevance here, both of Plaintiff’s declarations affirm his

belief that Ayazi declined to promote him to a “senior editor” position in retaliation for his EEO

activity. Dkt. 17-5 at 4 (First Stanazai Decl.); Dkt. 33-5 at 1 (Second Stanazai Decl.). Although

it is unclear whether Plaintiff has a factual basis for that belief sufficient to defeat summary

judgment, that is not the argument that the Board has made.

Second, the Board—in two sentences—contends that Plaintiff never sought “to be placed

in the senior editor positions.” Dkt. 31-1 at 10. Again, the Board’s argument fails. Plaintiff

attests that he “always sought a senior editor assignment/position,” Dkt. 33-5 at 1 (Second

Stanazai Decl.); was “always seeking management position[s],” id. at 3; and could not apply for

15 the October 2016 senior editor positions because they were never advertised, id. at 2, a point

which the Board admits, see Dkt. 15-3 at 2 (Ayazi Decl. ¶ 9) (October 2016 senior editor

positions were “not advertise[d]” and were not filled via “a competitive hiring process”). In

addition, Plaintiff testified during his deposition that he had made clear—before October 7,

2016—that he was interested in a senior editor position. See Dkt. 31-3 at 32:19–35:4 (Stanazai

Dep.). When weighed against the minimal evidence offered by the Board, these assertions—

made under the penalty of perjury—are sufficient to create a triable issue of fact about whether

Plaintiff meaningfully expressed his interest in the senior editor positions, and, indeed, did all

that he could because the positions were never advertised.

The Court, accordingly, is unpersuaded by either of the two arguments that the Board

makes on the merits. The Court recognizes that Plaintiff has done little to show that he is

entitled to prevail. But, at this stage of the proceedings, the burden is the Board’s, and the

slender arguments that it makes—amounting to three sentences of analysis—do not justify the

entry of summary judgment in its favor.

CONCLUSION

For the foregoing reasons, the Court DENIES the Board’s motion for reconsideration or,

in the alternative, for summary judgment, Dkt. 31. The parties shall appear for a telephonic

status conference on October 29, 2020 at 2:00 p.m. to discuss further proceedings.

SO ORDERED.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: October 16, 2020

16