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

This is the second case brought by Plaintiff Naseem Stanazai against Defendant

Broadcasting Board of Governors (“Board”) 1 alleging various forms of workplace

discrimination. The Court entered judgment on behalf of the Board in April 2018 in the first

case, see Achagzai v. Broad. Bd. of Governors,

(D.D.C. 2018), and in

two prior opinions in this matter, see Dkt. 21; Dkt. 35, the Court substantially narrowed the

scope of this case. The sole remaining issue is whether the Board retaliated against Stanazai, in

violation of the Age Discrimination in Employment Act of 1967 (“ADEA”),

et

seq., by refusing to hire him for a senior editor position in October 2016. See Dkt. 21 at 6. The

Board moves for summary judgment on the ground that there was no such “open position for

Stanazai to fill.” Dkt. 40-1 at 10. Because the undisputed evidence bears out this contention, the

Court will GRANT the Board’s renewed motion.

1 Although the Board has since been renamed the Agency for Global Media, see Dkt. 40-2 at 1 (Def.’s SUMF ¶ 1), the Court uses the entity’s name as of the dates relevant to this dispute. I. BACKGROUND

For present purposes, the Court takes “the facts in the record and all reasonable

inferences derived therefrom in the light most favorable” to Stanazai. Coleman v. Duke,

(D.C. Cir. 2017) (quoting Al-Saffy v. Vilsack,

(D.C. Cir. 2016)).

A. Factual Background

The Board is an independent federal agency that oversees a network of media

organizations intended to “support . . . freedom and democracy” around the world. Dkt. 40-2 at

1 (Def.’s SUMF ¶ 1); Dkt. 41-1 at 1 (Pl.’s Resp. ¶ 1). One such media network is the Voice of

America, which provides news via radio and television, along with digital, web, and mobile

media, in 47 languages to an estimated 278 million people worldwide. Dkt. 40-2 at 1 (Def.’s

SUMF ¶ 2). At all times relevant to this matter, Voice of America employed Plaintiff Nazeem

Stanazai as an international broadcaster and copy editor who was compensated at General

Schedule pay scale (“GS”) level 12. See Dkt. 15-6 at 1 (EEO Counselor’s Rep.); Dkt. 40-2 at 1

(Def.’s SUMF ¶ 3). Stanazai worked with the Afghan Service, within Voice of America’s South

and Central Asian Division, which “broadcasts on radio and television and publishes digital

content in the Dari and Pashto languages.” Dkt. 40-2 at 1 (Def.’s SUMF ¶¶ 3–4). The South and

Central Asian Division’s director was Akbar Ayazi from April 5, 2015 until August 25, 2019.

Id. at 2 (Def.’s SUMF ¶ 5); Dkt. 41-1 at 1 (Pl.’s Resp. ¶ 1). For roughly six months during 2016,

Ayazi also served as the acting chief of the Afghan Service. Dkt. 40-2 at 2 (Def.’s SUMF ¶ 5);

Dkt. 41-1 at 1 (Pl.’s Resp. ¶ 1); Dkt. 15-3 at 1 (Ayazi Decl. ¶¶ 1–2). During Ayazi’s brief tenure

as acting chief, he oversaw a reorganization of the Afghan Service’s management. Dkt. 40-2 at 2

(Def.’s SUMF ¶ 6).

This reorganization is at the core of the instant dispute. The parties appear to agree that,

2 prior to the reorganization, the Afghan Service “was organized into four groups: (1) Dari radio,

(2) Pashto radio, (3) Dari and Pashto television, and (4) digital” and that the reorganization

involved “reconfiguring the three radio and television services into two services organized by

language.” Id. (Def.’s SUMF ¶¶ 6, 8); see Dkt. 41-1 at 1 (Pl.’s Resp. ¶ 3) (acknowledging that

“Ayazi . . . reconfigured the three radio and television services into two services, arranged by

language”). But they dispute the management structure of those reconfigured divisions.

The Board maintains that the four groups that existed before the reorganization were each

“led by a GS-13 employee referred to as either a ‘managing editor’ or ‘supervisory international

broadcaster.’” Dkt. 40-2 at 2 (Def.’s SUMF ¶ 6); see also Dkt. 15-3 at 1 (Ayazi Decl. ¶ 3).

Following the reorganization, according to the Board, Ayazi made Lina Rozbih managing editor

of one of the two resulting divisions, the Dari radio and television service, and Shaista Sadat

Lami the managing editor of the other, the Pashto radio and television service. Dkt. 40-2 at 2–3

(Def.’s SUMF ¶¶ 9–10). Both positions were compensated at the GS-13 level (or its equivalent

for noncitizens, the GG-13 level). Id. Ayazi further “assigned several ‘new tasks’” as part of the

reorganization, according to an email the Board attached to a prior filing. Id. at 3 (Def.’s SUMF

¶ 11); see Dkt. 15-3 at 4–5 (Ayazi Decl., Ex. 1). These included “assign[ing] Ahmad Sear Zia

and Hafiz Assefi to be ‘senior editors’ on the Dari team and Roshan Noorzai and Hasib Alikozai

to be ‘senior editors’ on the Pashto team.” Dkt. 40-2 at 3 (Def.’s SUMF ¶ 11). The Board

maintains that “[t]hese ‘senior editor’ designations were not new GS-13 positions,” and each of

the four individuals “identified by Ayazi as ‘senior editors’ were GS-12 International

Broadcasters prior to Ayazi’s email announcement and remained GS-12 International

Broadcasters after the announcement.” Id. (Def. SUMF ¶ 12). “Following the restructuring,

th[ese] four individuals continued to perform the[] same duties for the newly structured teams

3 that were organized by language” as they performed when those teams were organized by

broadcast medium. Id. (Def.’s SUMF ¶ 14).

According to Stanazai, in contrast, “Ayazi not only reconfigured the three radio and

television services into two services, arranged by language, but [he] changed the editorship of the

two new services.” Dkt. 41-1 at 1 (Pl.’s Resp. ¶ 3). Referring to the “managing editor” position

at the head of the newly created services, Stanazai maintains that Ayazi “promoted Ms. Rosbih

as head of Dari radio and television and Ms. Lami as the head of Pashto radio and television,”

even though—according to Stanazai—he was “more qualified to be a managing editor” than

either individual. Id. at 1–2 (Pl.’s Resp. ¶ 3). He also disputes the Board’s assertions regarding

the “senior editor” positions with each service, arguing that he “was overlooked” for those

positions and that “most of th[e] individuals” who took those positions “were benchmarked to

GS[-]13 in June 2017.” Id. at 3 (Pl.’s Resp. ¶ 6).

B. Procedural History

Stanazai filed this action on December 11, 2017, alleging discrimination under Title VII

of the Civil Rights Act, 42 U.S.C. § 2000e et seq.; age discrimination under the ADEA; and

retaliation under the ADEA. Dkt. 1 at 6–9 (Compl. ¶¶ 16–29). After the Board moved for

summary judgment on all three claims, Dkt. 15, the Court granted that motion in part on March

5, 2019, Dkt. 21. The Court held that Stanazai’s Title VII claims failed as a matter of law

because he “allege[d] discrimination on the basis of age (or retaliation for complaining about age

discrimination),” and Title VII “proscribes only discrimination based on an individual’s ‘race,

color, religion, sex, or national origin’—not age.” Id. at 7 (quoting 42 U.S.C. § 2000e-2(a)).

Turning to Stanazai’s ADEA claims, the Court concluded that many of his hostile work

environment and discrimination claims were barred by res judicata because the Court had

4 previously entered judgment in favor of the Board on those claims in a prior litigation. Id. at 8;

see also Achagzai,

. Principles of administrative exhaustion further

narrowed Stanazai’s ADEA claims, leaving only his claims arising out of “Ayazi’s alleged

failure to promote Stanazai to a management position as part of his October 7, 2016

reorganization.” Dkt. 21 at 10.

As for those remaining claims, the Court held that “the Board ha[d] proffered unrebutted

evidence that the October 2016 reassignments were part of a division-wide reshuffling of

responsibilities” and that “[t]he reorganization did not create any vacant management positions.”

Id. at 12. These reassignments, instead, “were part and parcel of Mr. Ayazi’s effort to

‘restructure the management’ to ‘streamline the workflow of the service.’” Id. (alterations

omitted) (quoting Dkt. 15-3 at 4). And, “[g]iven that Stanazai was a GS-12, he could not have

been reassigned to the roles of managing editor because those [we]re GS-13 positions.” Id.

(alterations and quotation marks omitted). As a result, Stanazai had failed to make out a prima

facie case of discrimination or retaliation “with respect to Stanazai’s claim that he was not

selected as a managing editor.” Id. at 11.

Reading Stanazai’s complaint liberally, however, the Court was persuaded that “Stanazai

not only alleges that the Board failed to promote him to managing editor, a GS-13 position, but

. . . also . . . that he ‘applied for several management positions that became available’” and that

he “was denied [promotion] as reprisal for his EEO complaints.’” Id. at 13 (emphasis in opinion)

(quoting Dkt. 1 at 5 (Compl. ¶ 13)). The Board had “failed to address [that] claim altogether,”

and, unlike the two “managing editor” positions, there was no evidence that the four “senior

editor” positions were limited to GS-13 employees. Id. The Court, accordingly, declined to

grant summary judgment on that claim. Id.

5 After the parties engaged in discovery, the Board moved for reconsideration or, in the

alternative, for summary judgment, on the ground that Stanazai had abandoned any claim related

to the four “senior editor” positions. Dkt. 31-1 at 7. The Board pointed to Stanazai’s deposition,

in which he was asked to name all of the management positions he was claiming that he had been

unlawfully denied. See Dkt. 31-3 at 9–17, 21–26 (Stanazai Dep. 9:4–17:6; 21:10–26:14).

Because Stanazai mentioned various positions—including web editor and managing editor—but

did not mention the “senior editor” positions, the Board argued that Stanazai had “disavowed any

claim of retaliation regarding the senior editor assignment,” Dkt. 34 at 1. In denying the Board’s

motion for reconsideration, the Court noted that “nothing in the Federal Rules of Civil Procedure

specifically provides for the abandonment of an individual legal claim through deposition

testimony” and concluded that Stanazai had not abandoned his claim (even if he could do so)

through his deposition testimony. Dkt. 35 at 9–11 (quoting Lemmons v. Georgetown Univ.

Hosp.,

(D.D.C. 2007)). On the merits, while “recogniz[ing] that Plaintiff

ha[d] done little to show that he is entitled to prevail,”

, the Court held the Board’s

“cursory discussion” of the merits of Stanazai’s claim “d[id] not justify the entry of summary

judgment in its favor,” id. at 13, 16.

The Board has moved for summary judgment for a third time. Dkt. 40. In this iteration,

the Board argues that (1) Stanazai cannot make out a prima facia case for retaliation because

there were never any open positions for senior editor; and (2) for the same reason, the Board had

“legitimate, nonretaliatory reasons for not naming Stanazai a ‘senior editor.’” Dkt. 40-1 at 10,

14. Stanazai opposed the Board’s motion, Dkt. 41, and the Board filed its reply, Dkt. 42.

6 II. LEGAL STANDARD

A party is entitled to summary judgment under Federal Rule of Civil Procedure 56 if it

can “show[] that there is no genuine dispute as to any material fact and [that it] is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party seeking summary judgment

“bears the initial responsibility” of “identifying those portions” of the record that “demonstrate

the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,

(1986). A fact is “material” if it could affect the outcome of the litigation under governing law,

see Anderson v. Liberty Lobby, Inc.,

(1986), and 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,

(2007). The Court must view the evidence in the light most

favorable to the nonmoving party and must draw all reasonable inferences in that party’s favor.

See Talavera v. Shah,

(D.C. Cir. 2011).

If the moving party carries this initial burden, the burden then shifts to the nonmoving

party to show that sufficient evidence exists for a reasonable jury to find in the nonmoving

party’s favor with respect to the “element[s] essential to that party’s case, and on which that

party will bear the burden of proof at trial.”

(quoting Holcomb v. Powell,

(D.C. Cir. 2006)). The nonmoving party’s opposition, accordingly, must consist of more than

unsupported allegations or denials, and must be supported by affidavits, declarations, or other

competent evidence setting forth specific facts showing that there is a genuine issue for trial. See

Fed. R. Civ. P. 56(c); Celotex,

. That is, once the moving party carries its initial

burden on summary judgment, the nonmoving party must provide evidence that would permit a

reasonable jury to find in its favor. See Laningham v. U.S. Navy,

(D.C. Cir.

7 1987). If the nonmoving party’s evidence is “merely colorable” or “not significantly probative,”

the Court should grant summary judgment. Liberty Lobby, 477 U.S. at 249–50.

III. ANALYSIS

The Board’s two arguments in favor of summary judgment present two sides of the same

coin. The Board argues, first, that “Stanazai cannot make out a prima facie case of retaliation

regarding the ‘senior editor’ assignments . . . because there were never any open position[s] for

Stanazai to fill.” Dkt. 40-1 at 10. And the Board’s second argument is that it “had legitimate,

nonretaliatory reasons for not naming Stanazai a ‘senior editor’”—namely, “he was not selected

because there was no selection associated with those assignments.” Id. at 14. The crux of both

arguments is that “there were no new ‘senior editor’ positions created as part of Ayazi’s

restructuring of the [Afghan Service] and no competitive selection process took place to fill those

assignments.” Id. at 13. Instead, according to the Board, “[t]he four individuals designated as

senior editors . . . retained the same grade and position as they had held prior to the restructuring

. . . [and] continued to perform the same duties and functions that they had been responsible for

prior to the restructuring.” Id. Relying on the Court’s prior observation that Stanazai’s claims

fail if he “he cannot establish a vacancy in the position sought,” the Board contends that the

undisputed evidence shows that there was no vacancy to fill and that it is now entitled to

summary judgment. Id. at 13 (quoting Dkt. 21 at 12) (arguing that Stanazai has failed to make

out a prima facie case); id. at 14 (noting that “[t]he agency’s nonretaliatory reasons for not

selecting Stanazai as a ‘senior editor’ largely overlap with the reasons that Stanazai cannot make

out a prima facie claim”). Accordingly, the Court must determine whether the Board is correct

that the undisputed evidence establishes that there was no “vacancy in the position sought,” Dkt.

21 at 12—that is, the position of “senior editor.”

8 For support, the Board has submitted declarations from Leslie McKnight, a human

resources specialist with the Board, and Ibrahim Nasar, who served as managing editor of Pashto

Radoi within the Afghan Service until the 2016 reorganization, at which point he became special

projects manager for the Afghan Service. See Dkt. 40-3 (McKnight Decl.); Dkt. 40-4 (Nasar

Decl.). In her declaration, McKnight represents that she is “familiar with the [Board’s]

personnel practices and records” and that she has “reviewed the personnel files” of the four

individuals assigned as “senior editors” in 2016. Dkt. 40-3 at 1 (McKnight Decl. ¶¶ 1, 4). Based

on that review, McKnight attests that “[n]one of them received a grade increase or any other

form of promotion in connection with Ayazi’s announcement and none of their position

descriptions changed in connection with Ayazi’s announcement.” Id. at 1–2 (McKnight Decl.

¶ 4). Although one of those individuals was later promoted to “an open GS-13 Supervisory

News Editor (Digital) position as part of a competitive selection,” according to McKnight,

“Stanazai did not apply for th[at] open position.” Id. at 2 (McKnight Decl. ¶ 4).

Nasar, for his part, represents that he has “personal knowledge of the roles and duties of

individuals employed in the Afghan Service,” including that Stanazai served as an international

broadcaster assigned to Pashto Radio when Nasar was managing editor of that service. Dkt. 40-4

at 1 (Nasar Decl. ¶¶ 1–2). Nasar further represents that he is “familiar with [the] email sent by

Akbar Ayazi on October 7, 2016, in which Ayazi announced the new management structure for

the Afghan Service and stated that he had asked certain individuals to serve as ‘senior editors.’”

Id. (Nasar Decl. ¶ 3). And, based on his “experience and observation,” Nasar attests that “the

duties and responsibilities of the individuals labelled by Ayazi as ‘senior editors’ did not change

following the October 2016 announcement.” Id. (Nasar Decl. ¶ 4). Instead, according to Nasar,

before the reorganization those individuals were merely called “team leaders,” rather than

9 “senior editors,” but their duties both before and after “included assisting in the assignment of

tasks, finding news stories for broadcast, and copy editing.” Id. at 1–2 (Nasar Decl. ¶ 4); see

also id. at 2 (Nasar Decl. ¶ 4 (“The four named individuals continued to perform these same

duties for their respective language teams following the restructuring.”).

Stanazai offers no evidentiary rebuttal whatsoever to the relevant portions of the

McKnight or Nasar declarations. In his brief, he muses that “Defendant would want this court of

[sic] blindly believe that all these new positions, i.e. going from team leader to senior editor and

receiving GS13 within a few months, or in Ms. Lami’s case, going from on air talent to an actual

editor, are all ‘reassignments’” and wonders, “[i]f that is the case, whey [sic] did he not

‘reassign’ Mr. Stanazai, a US citizen, who was and should have been benchmarked to GS13

several years ago, nearly going back to 2010.” Dkt. 41 at 3. But the Board has not asked this

Court to “blindly believe” its position; rather, it has submitted two declarations that aver, under

the penalty of perjury, that that none of the four “senior editors” “received a grade increase or

any other form of promotion in connection with Ayazi’s announce,” Dkt. 40-3 at 1–2 (McKnight

Decl. ¶ 3); that “none of their position descriptions changed in connection with Ayazi’s

announcement,” id.; and that “the duties and responsibilities of the individuals labelled by Ayazi

as ‘senior editors’ did not change following the October 2016 announcement,” Dkt. 40-4 at 1–2

(Nasar Decl. ¶ 4).

As the Board acknowledges, one of the four “senior editors,” Amad Sear Zia, was later

promoted to a GS-13 position. Dkt. 40-3 (McKnight Decl. ¶ 4). But, as noted above, that

promotion came months after Ayazi’s adoption of the “new ‘management structure’ for the

Afghan Service” and was the result of “a desk audit unrelated to [that] new management

structure.” Id. (McKnight Decl. ¶¶ 2, 4). Similarly, Hasib Alikozai was “separately promoted to

10 an open GS-13 Supervisory News Editor (Digital) position as part of a competitive selection,”

but Stanazai did not apply for that open position.” Id. (McKnight Decl. ¶ 4).

More fundamentally, neither Stanazai’s “affidavit” nor any of the other material he has

submitted joins issue with the Board’s showing that there was no vacant GS-12 (or GG-12)

position to fill as part of Ayazi’s adoption of a “new management structure” in October 2016. 2

Stanazai contends that he “always sought a senior editor assignment/position,” that the “senior

editor” position was never advertised, that he was better qualified than the four “senior editors,”

that he “always was available to be ‘re-assigned,’” and that he deserved—but never received—a

promotion to a GS-13 position. Dkt. 41-2 at 18–20. Beyond that, his “affidavit” stresses that he

was a U.S. citizen, while Lami Rosbih was not. Id. at 18. But none of this has anything to do

with whether the “senior editor” designation constituted a new position to be filled or whether it

was merely a different title for those who already served as “team leaders,” who continued to

perform the same essential duties for the same pay. The only evidence before the Court

conclusively demonstrates that all that changed was the title and allocation of specific (and

previously assigned) tasks among the four “senior editors.”

Stanazai also points to the email in which Ayazi announced the reorganization, asserting

that Ayazi’s comment that “‘[a]ll four [senior] editors will support [the managing editors] in

2 As the Board correctly observes, Stanazai’s “affidavit” is neither signed nor attested to under the penalty of perjury. See Dkt. 42 at 3 n.2. More troubling still, that affidavit begins “I, Tahir M. Achagzai being first duly sworn, depose[] and state[] under the penalty of perjury as follows.” Dkt. 41-2 at 18 (emphasis added). Tahir Achagzai is the name of another plaintiff who sued the Board for workplace discrimination alongside Stanazai in a prior litigation. See Achagzai v. Broad. Bd. of Governors,

(D.D.C. 2016). As discussed above, the Court entered judgment for the Board in that matter on April 20, 2018. Achagzai,

. As a result, Stanazai’s “affidavit” does not constitute competent evidence. But that makes little difference here, because the “affidavit” does not controvert the Board’s showing that there was no vacancy to fill.

11 leading the teams’ . . . implies that ‘senior editor’ position is a different position, with different

duties and responsibilities, than the ‘team leader’ position.” Dkt. 41 at 5; see also Dkt. 15-4 at

4–5 (Ayazi Decl., Ex. 1) (Ayazi email). Ayazi’s comment, however, does nothing to contradict

Nasar’s attestation that, before and after the reorganization, the duties of the four individuals

assigned as senior editors “included assisting in the assignment of tasks, finding news stories for

broadcast, and copy editing.” Dkt. 40-4 at 1–2 (Nasar Decl. ¶ 4).

Nor do any of the other exhibits to which Stanazai points in support of his opposition

bear any relation to the argument raised in the Board’s motion for summary judgment. Stanazai,

instead, offers an email exchange with Ayazi regarding his concerns regarding grammatical

errors within the Afghan Service’s broadcasts, see Dkt. 41-2 at 2–5 (Ex. 1); a 2020 email

exchange in which Stanazai complains that he has remained a GS-12, despite assurances that he

would “bench-marked for GS[-]13,” see

at 7–8 (Ex. 2); and an application Stanazai

submitted, after the events relevant to this case, for a position other than the one at issue here,

along with that position’s job posting, see

at 10–15 (Ex. 3).

All of this leaves the Court with uncontested declarations from the Board attesting that

“none” of the individuals assigned to senior editor positions “received a grade increase or any

other form of promotion in connection with Ayazi’s announcement,” Dkt. 40-3 at 1–2

(McKnight Decl. ¶ 4), and that “the duties and responsibilities of the individuals labelled by

Ayazi as ‘senior editors’ did not change following the October 2016 announcement.” Dkt. 40-4

at 1 (Nasar Decl. ¶ 4). That evidence shows that, as with the managing editor positions, the

creation of the senior editor positions “did not create any vacant management positions” but

rather “were part and parcel of [the] effort to restructure the management and to streamline the

workflow” of the Afghan Service. Dkt. 21 at 12 (alterations omitted).

12 On that record, the Court must conclude that Stanazai has failed to identify “a vacancy in

the position sought,” id.—here, that of senior editor. With respect to any claim of

discrimination, this conclusion resolves the case. A discrimination claim requires “an adverse

employment action,” which must “‘affect[] the terms, conditions, or privileges or employment or

future employment opportunities.’” Achagzai,

(quoting Ortiz-Diaz v.

U.S. Dep’t of Hous & Urban Dev., Office of Inspector Gen.,

(D.C. Cir. 2017));

see also

(holding that “[a]n adverse employment action” requires a failure to promote or to

hire or “a significant change in [employment] benefits”).

The question is slightly more complicated, however, with respect to Stanazai’s retaliation

claim because “[a] retaliation claim is ‘not limited to discriminatory actions that affect the terms

and conditions of employment’ and may extend to [other] harms[,] . . . so long as ‘a reasonable

employee would have found the challenged action materially adverse.’”

(quoting Burlington

N. & Santa Fe Ry. Co. v. White, 548 U.S 53, 64 (2006)). In this context, an action is “adverse” if

“might have dissuaded a reasonable worker from making or supporting a charge of

discrimination.” White, 548 U.S. at 68 (quotation marks omitted). Notwithstanding this less

demanding standard, however, Stanazai faces two insurmountable obstacles. First, he does not

argue that the failure to give him the title of “senior editor” or to assign him the duties of that

position would have dissuaded a reasonable worker from making charges of discrimination.

Rather, the focus of his “affidavit” and arguments is that he deserved to be promoted to a GS-13

level position. That, however, was not on the table when Ayazi created the new title of “senior

editor.” Second, and more importantly, the undisputed evidence shows that the Board did not

subject Stanazai to an adverse action of any kind—the Board left everyone in essentially the

same position, with the same pay, as before the “new management structure” was adopted. It

13 merely changed the name of the “team leader” position to “senior editor” and reallocated

assignments based on language rather than media.

The Court, accordingly, is persuaded that Stanazai’s remaining claims relating to the

“senior editor” position fail because there was no new position to fill and no selection process

from which he was excluded.

CONCLUSION

For the foregoing reasons, the Court GRANTS the Board’s renewed motion for summary

judgment.

A separate order shall issue.

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

Date: May 12, 2022

14