Achagzai v. Broad. Bd. of Governors
Achagzai v. Broad. Bd. of Governors
Opinion of the Court
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 *400present 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 ,
Shortly thereafter, on March 18, 2016, the Court granted in part and denied in *401part Defendant's motion to dismiss, or, in the alternative, for summary judgment. See Achagzai v. Broad. Bd. of Governors ,
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.
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 *402[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.
*403II. LEGAL STANDARD
On a motion for summary judgment under Rule 56, the Court considers the full record before it, but it may not resolve any bona fide factual disputes. The Court, accordingly, may grant summary judgment only when the moving party "shows that there is no genuine dispute as to any material fact and [that] the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Where, as here, the defendant has moved for summary judgment, it "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 ,
If the moving party makes this initial showing, the burden shifts to the nonmoving party to show that sufficient evidence exists for a reasonable jury to find in its 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."
III. DISCUSSION
The Board argues that Stanazai's remaining claims fail because neither the February 25 schedule nor the February 5 email constitutes an adverse action sufficient to support a retaliation or discrimination claim under Title VII or the ADEA. Dkt. 67-1 at 7. Stanazai's opposition resists the Court's prior narrowing of the issues and fails to address much of the substance of Defendant's motion, stating instead that to focus on these two actions in isolation is "misleading" because Stanazai has in fact offered proof of the Board having "systematically taken adverse action against [him] since 2006 that ... continued up to December 13, 2016 and [is still] ... [on]going." Dkt. 68-1 at 7. Stanazai in fact admits that at least "[t]he schedule of February 25, 2013 is not an indication of ... retaliation or [less] opportunity given to Mr. Stanazai."
A. The February 5, 2013 Email
Under the burden-shifting framework of McDonnell Douglas Corp. v. Green ,
To prove a retaliation claim, in contrast, a plaintiff must show only that he or she suffered "(i) a materially adverse action (ii) because he or she had brought or threatened to bring a discrimination claim." Baloch v. Kempthorne ,
The Court first considers whether the February 5 email was an "adverse employment action" in the context of Stanazai's discrimination claim. As the Court previously observed, "[s]tanding alone, it is unlikely that the purportedly 'false and accusatory e-mail[ ],' Dkt. 30-2 at 104, constitute[s] an adverse employment action" because, "[a]s the D.C. Circuit has repeatedly observed, 'a thick body of precedent ... refutes the notion that formal criticism or poor performance evaluations are necessarily adverse actions.' "
*405Achagzai ,
Having now considered the additional evidence presented by the parties regarding what occurred, the Court concludes that the February 5 email did not have any tangible consequences and thus did not constitute an adverse employment action. After Nasar emailed Stanazai and Farivar criticizing Stanazai's performance, the three met and discussed the issue. Dkt. 67-19 at 26-27. Stanazai described the meeting as resulting in Nasar retracting his earlier accusation:
To my surprise Mr. Nasar said he did not intend to send that email to us. Mr. Farivar at the end of the meeting suggested having workable relations at least. I said I simply want him to treat me with fairness, according to rights granted by the laws of the United States and VOA rules. The meeting was over.
Id. at 26. More importantly, Stanazai offers no evidence that any subsequent employment action, such as the denial of a promotion, was premised in whole or in part, directly or indirectly, on the email. To the contrary, Stanazai does not even reference the email in his opposition to the Board's motion for summary judgment beyond asserting that it is a disputed fact whether "Mr. Stanazai was targeted on February 5th, 2013 when he was accused of not completing an assignment." Dkt. 68-3 at 1. This assertion, even if it were supported by evidence, is nonresponsive to the question of whether there were consequences to the email. Being "targeted" is the sort of "[p]urely subjective injur[y], such as ... public humiliation or loss of reputation" that is legally insufficient to constitute an adverse employment action. See Forkkio ,
Accordingly, although given ample opportunity to take discovery, Stanazai has failed to identify any evidence that would permit a reasonable jury to find that the email "result[ed] in a tangible consequence, such as a demotion, loss of a bonus, or missed opportunity for advancement." Achagzai ,
For the same reasons, Stanazai's retaliation claim fails to the extent it is premised on the February 5 email. Although retaliation claims may be based on "a broader sweep of actions than ... pure discrimination claim[s]," Baloch ,
B. The February 25, 2013 Schedule
Although the February 5 email, standing alone, is not an adverse action for purposes of a retaliation or discrimination claim, the Court's previous decision recognized that the email might still be relevant to a claim that other behavior by the Board was discriminatory or retaliatory. Achagzai ,
Stanazai argues that in the February 25 schedule he was assigned to work as a shift editor on only Saturdays, while Noor-who Stanazai states was less qualified-was assigned five days of shift editing duties each week. Dkt. 68-1 at 11. Stanazai originally framed this new schedule as a demotion because it reduced the number of days each week he was scheduled as a shift editor from two to one. See Achagzai ,
Stanazai, however, has now offered an alternative theory for why the February 25 schedule change constituted both a materially adverse action and an adverse employment action. He maintains the schedule is "a good example of the shows and opportunities that were given to less qualified and junior employees,"
The evidence before the Court forecloses Stanazai's argument that the relative imbalance of responsibilities between him and Noor-or any other broadcaster-on the February 25 schedule materially affected his chances of becoming Managing Editor. He states that he "tried to apply for the position of Managing Editor at least 3 times." Id. Two of those applications were in 2006 and 2008, Dkt. 33-3 at 12, and therefore could not have been affected by the February 25 schedule, which was not announced and implemented until 2013, Dkt. 68-2 at 3. The only application that could have been affected came in December 2016. Id. at 3. Even setting aside the other problems with Stanazai's theory, discussed in greater detail below, Stanazai's own description of the person hired to fill the Managing Editor role rebuts his argument. Contrary to his assertion that shift editor responsibilities were a vital component of becoming Managing Editor, the person chosen for the role was not one of the shift editors during the period for which records have been produced-nor does she appear to have otherwise had editing responsibilities. See Dkt. 67-7 at 2-3; Dkt. 67-8 at 2-3; Dkt. 67-9 at 2-3. The December 2016 hire was "an on-air talent," who Stanazai suggests was "not qualified" in part because of her lack of prior editing responsibilities. Dkt. 68-2 at 4.
Stanazai further alleges that the relative imbalance in shift editor work negatively affected his prospects, more generally, to "be promoted, get overtime, have opportunities, training etc." Dkt. 68-2 at 3. He offers no support for this vague assertion, however, and instead merely relies on conclusory statements in his own declaration.
First, as discussed above, the schedule did not reduce Stanazai's previously established responsibilities. Instead, his claim rests on dissatisfaction with the assignment of additional duties to Noor, whose capabilities Stanazai questioned. Although Stanazai previously stressed that he did not care who the assignments went to, so long as it was someone other than Noor, he now seems to suggest that those duties should have been given to him. Compare Dkt. 67-4 at 30-31 ("Q: [W]as it your position that [Noor] should have been removed from shift editor and you should have been assigned to the shift editor? A: I-I didn't say I should be assigned.... They could assign Roshan. They could assign Hasib. They could assign Achagzai."), and id. at 31 ("My objection is ... unqualified people ...."), with Dkt. 68-2 at 3-4. This formulation of Stanazai's claim also fails because he has offered no evidence of a connection between his ability to "be promoted, get overtime, have opportunities, training etc." and Noor's hours. Notably, Stanazai has not established that Noor's hours would have otherwise been assigned to Stanazai or that any connection existed between the number of hours Noor worked as shift editor each week and *409any material aspect of Stanazai's employment. He, accordingly, has not presented sufficient evidence for a reasonable jury to conclude that the relative distribution of hours (which did not diminish Stanazai's previously assigned responsibilities) would "have dissuaded a reasonable worker from making or supporting a charge of discrimination," Burlington N. ,
Second, although Stanazai specifically asserts that his opportunity to earn overtime was affected by the February 25 schedule, he again offers no evidence that his compensation or opportunity to secure additional pay actually varied as a result of the new assignments. The Board, in contrast, provides evidence that the broadcaster position (with its corresponding pay grade) presumed rotation among these less formal roles within the studio without providing for any change in wage. See Dkt. 67-5. Taken together, no reasonable jury could conclude on the evidence presented that Stanazai's compensation was in fact dependent on the amount of work he did as a shift editor. Without such a connection between the schedule and his pay, this theory as to why the February 25 schedule constitutes an adverse employment action or a materially adverse action also fails. See Taylor v. Small ,
Third, even if the February 25 schedule might in theory have had some effect on Stanazai's chances for promotion, it was in place for such a short period of time that as a practical matter there is no basis for a reasonable jury to find that it did in fact result in any such harm. Beginning on April 10, 2013, the VOA eliminated the "shift editor" assignment based on staff feedback, and instead created two new assignments: "copy editor" and "coordinator." Dkt. 67-2 at 2; Dkt. 67-6 at 17. The copy editor role, however, was similar to that of the shift editor. Dkt. 67-4 at 28-29. 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-substantially more than any other employee. Dkt. 67-9 at 2-3. Noor was scheduled for six one-hour blocks as coordinator, but no shifts as copy editor.
Underlying all of these infirmities is Stanazai's failure to come forward with material evidence beyond his own, uncorroborated declarations that the February 25 schedule had any material consequences. See Dkt. 67-19; Dkt. 68-2. All he offers by way of additional support is an affidavit from Nasar's predecessor as Managing Editor, which states that Beth Mendelson, the direct supervisor of the Pashto Service's Managing Editor, "would push [the former Managing Editor] on [a] regular basis to get rid of the senior and older staff members and replace them [with] much younger people." Dkt. 68-2 at 17-18. The affiant also states that in 2008 he recommended that Stanazai receive a live news assignment, only to be overruled by Mendelson, who then assigned a younger broadcaster.
First, the affidavit is dated November 3, 2012, and references events occurring prior to Nasar's hiring in 2010; it does not address the relevant time period in 2013.
To be sure, "under certain circumstances a plaintiff's sworn declaration can create a genuine issue of material fact and thereby render summary judgment inappropriate." Ortiz-Diaz ,
Taken together, the Court concludes that-in light of the evidence offered by both parties-Stanazai's declarations are insufficient to create a genuine dispute of material fact regarding whether the February 25 schedule was sufficiently adverse to support a discrimination or retaliation claim under the ADEA or Title VII.
III. CONCLUSION
For the reasons discussed above, the Board's motion for summary judgment will be GRANTED .
A separate order will issue.
The parties dispute whether Stanazai said he needed more time, or simply that he could not complete the task. See Dkt. 67-11 at 1-3. Because the Court concludes that Nasar's email is not an adverse employment action regardless of the event that precipitated it, the origin of the dispute is not material.
Defendant characterizes Stanazai's schedule as of July 2013 as being "unchanged from the April 2013 schedule," Dkt. 70 at 3, and Stanazai does not dispute this contention. It appears, however, that Stanazai may in fact have received additional copy editing responsibilities of the sort he had been seeking, becoming the primary copy editor on Saturdays rather than the backup. Compare Dkt. 70-1 at 2 (listing "Stanazai/Hasib" on the July 2013 Schedule), with Dkt. 67-9 at 2 (listing "Ashiq/Stanazai" on the April 2013 schedule). Regardless, Stanazai's editing responsibilities clearly did not decrease when the April 2013 schedule was revised in July 2013.
Stanazai's brief asserts that "[t]he schedule of February 25, 2013 is not an indication of less retaliation or opportunity given to Mr. Stanazai." Dkt. 68-1 at 2. The Court, however, understands Stanazai to mean "not an indication of retaliation or less opportunity."
Stanazai refers to the person hired as "Shaiesta Lamai Sadat," while the schedules refer to a "Shaista." Compare Dkt. 68-2 at 4, with Dkt. 67-7 at 2. Based on Stanazai's descriptions of the individual in question, these appear to be references to the same person.
The Court notes, as it did in its earlier opinion, that Plaintiff has attached hundreds of pages of records to his filings in this case, while continually failing to follow the Court's instructions that the relevant facts be identified. See Achagzai ,
Reference
- Full Case Name
- Taher ACHAGZAI v. BROADCASTING BOARD OF GOVERNORS
- Cited By
- 6 cases
- Status
- Published