UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
TAHER ACHAGZAI, et al.,
Plaintiffs,
v. Civil Action No. 14-768 (RDM) BROADCASTING BOARD OF GOVERNORS,
Defendant.
MEMORANDUM OPINION
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.
1 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. 5
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.
2 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. 7
II. 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, 477 U.S. 317, 323 (1986). A fact
is “material” if it could affect the outcome of the litigation, see Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (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, 550 U.S. 372, 380
(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. Talavera v. Shah, 638 F.3d 303,
308 (D.C. Cir. 2011).
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.” Id. (quoting Holcomb v. Powell, 433 F.3d 889, 895 (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 exists a genuine issue for trial. See Fed. R. Civ. P. 56(c); Celotex, 477
U.S. at 324. 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, 813 F.2d 1236, 1241 (D.C. Cir. 1987). If the nonmoving party’s
evidence is “not significantly probative,” the Court should grant summary judgment. Liberty
Lobby, 477 U.S. at 249–50.
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.”3 Id. at 2.
As the Court previously held, however, Stanazai’s administrative remedies were exhausted only
with respect to the “two incidents that allegedly occurred within 45 days of his March 22, 2013,
EEO counseling.” Achagzai, 170 F. Supp. 3d at 180. The Court, accordingly, may consider only
these two events, and, as explained below, it concludes that neither was sufficiently adverse to
support a claim for retaliation or discrimination under Title VII or the ADEA.
A. The February 5, 2013 Email
Under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973), Stanazai bears the initial burden of establishing a prima facie discrimination or
3 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.” 9
retaliation case under both the ADEA and Title VII, id. at 802. Discrimination claims brought
under these statutes require a plaintiff to show that “(1) [he] is a member of a protected class; (2)
[he] suffered an adverse employment action; and (3) the unfavorable action gives rise to an
inference of discrimination.” Czekalski v. Peters, 475 F.3d 360, 364 (D.C. Cir. 2007). An
adverse employment action must be “a significant change in employment status, such as hiring,
firing, failing to promote, reassignment with significantly different responsibilities, or a decision
causing significant change in benefits.” Douglas v. Donovan, 559 F.3d 549, 552 (D.C. Cir.
2009) (citation omitted). “Purely subjective injuries, such as dissatisfaction with a reassignment,
or public humiliation or loss of reputation,” are not sufficient. Forkkio v. Powell, 306 F.3d 1127,
1130 (D.C. Cir. 2002) (citation omitted). That means that “not everything that makes an
employee unhappy is an actionable adverse action.” Douglas, 559 F.3d at 552 (citation omitted).
An adverse employment action requires proof of more: the employer’s action must “affect[] the
terms, conditions, or privileges of employment or future employment opportunities.” Ortiz-Diaz
v. U.S. Dep’t of Hous. & Urban Dev., Office of Inspector Gen., 867 F.3d 70, 73 (D.C. Cir. 2017).
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, 550 F.3d 1191, 1198 (D.C. Cir. 2008). A
“materially adverse action” is one that “would have ‘dissuaded a reasonable worker from making
or supporting a charge of discrimination.’” Id. (quoting Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 68 (2006)). The “materially adverse” standard thus “encompass[es] a
broader sweep of actions than those in a pure discrimination claim.” Id. at 1198 n.4. A
retaliation claim is “‘not limited to discriminatory actions that affect the terms and conditions of
employment’ and may extend to harms that are not workplace-related or employment-related so
long as ‘a reasonable employee would have found the challenged action materially adverse.’” Id.
(quoting Burlington N., 548 U.S. at 64, 68).
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.’” Achagzai, 170 F. Supp. 3d at 181
(quoting Russell v. Principi, 257 F.3d 815, 818 (D.C. Cir. 2001)) (internal quotation marks
omitted) (alteration in original). The Court denied summary judgment as to Stanazai’s claim on
this point, however, because of the possibility that a more concrete consequence might have
resulted from the email. Id. Specifically, the Court held that the Board had “not submitted any
evidence refuting Stanazai’s allegation that he was demoted from a supervisory position and that
less qualified employees were given supervisory authority at his expense.” Id. at 182.
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,
306 F.3d at 1130.
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, 170 F. Supp. 3d at 181. A reprimand such as this one that does not
lead to any concrete, negative outcome is not an adverse employment action. See Russell, 257
F.3d at 818; accord Brooks v. Clinton, 841 F. Supp. 2d 287, 298–99 (D.D.C. 2012) (holding that
“harassing emails that challenged and criticized [an employee’s] work product” were
“supervisory acts [that] cannot constitute an adverse employment action because” the plaintiff
could not show “any materially adverse consequences to the terms, conditions, or privileges of
employment” (internal quotation marks omitted)).
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, 550 F.3d at 1198 n.4, that does not relieve the plaintiff
of his obligation to identify an action that would “dissuade[] a reasonable worker from making or
supporting a charge of discrimination.” Burlington N., 548 U.S. at 68 (citation omitted). An
informal criticism that resulted in no consequences beyond precipitating a meeting—at which
both participants were admonished to “hav[e] workable relations”—would not prevent a
reasonable worker from bringing or substantiating a discrimination claim. See Durant v. D.C.
Gov’t, 875 F.3d 685, 698 (D.C. Cir. 2017) (holding that a letter informing an employee of
“specific deficiencies regarding [his] conduct,” including failure to complete a task in a timely
manner, was not materially adverse); id. (“A reprimand letter setting forth allegations of
deficient work performance is not a materially adverse action absent a showing that the letter
would have dissuaded a reasonable employee from engaging in protected activity.”). This is not
a case in which an employee was subjected to actions that would lead a reasonable employee to
reconsider whether to engage in protected activity in the future. Cf. Baloch, 550 F.3d at 1199
(observing that a reprimand letter held not to be a materially adverse action “contained no
abusive language, but rather job-related constructive criticism, which ‘can prompt an employee
to improve her performance’” (quoting Whittaker v. N. Ill. Univ., 424 F.3d 640, 648 (7th Cir.
2005))). Nasar’s email, while critical, fails to rise to the level of material adversity necessary for
Stanazai’s retaliation claim to survive.
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, 170 F. Supp. 3d at 181–82. Specifically, the Court identified the February 25 schedule
as potentially adverse given Stanazai’s “allegation that he was demoted from a supervisory
position and that less qualified employees were given supervisory authority at his expense.” Id.
at 182. The Court, accordingly, denied summary judgment on Stanazai’s discrimination and
retaliation claims “insofar as they allege that the Board discriminated or retaliated against
Stanazai by either demoting him or promoting other VOA employees in his stead based on
considerations of age or nationality,” id. at 185, because “[t]he Board ha[d] not submitted any
evidence refuting Stanazai’s allegation,” id. at 182. The parties have now submitted additional
evidence of what the responsibilities of Stanazai and his coworkers were both before and after
the schedule was issued. In light of this evidence, the Court now concludes that the February 25
schedule was not sufficiently adverse to support a retaliation or discrimination claim.
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, 170 F. Supp. 3d at 182 (“Stanazai alleges both that he was
demoted from a supervisory position and that, when the new schedule issued, less qualified
employees were given supervisory authority.”). He has at various points in his opposition to the
present motion continued to frame his claim this way, see Dkt. 68-1 at 11, and he did so in his
deposition as well, Dkt. 67-4 at 20 (“I was reduced to one day . . . .”). As the copies of the
February 25 schedule and the schedule that preceded it make clear, however, Stanazai’s shift
editor responsibilities were not actually reduced. While he previously had been scheduled as
shift editor for one one-hour block on Friday and one one-hour block on Saturday, Dkt. 67-8 at
2–3, the February 25 schedule still scheduled Stanazai for two one-hour blocks, Dkt. 67-7 at 2–3.
The February 25 schedule, accordingly, cannot represent either a materially adverse action or an
adverse employment action if only Stanazai’s duties are considered, because nothing about those
duties changed in any material respect. While there can be “no doubt that the removal of [an
employee’s] supervisory responsibilities constitute[s] an adverse employment action,” Burke v.
Gould, 286 F.3d 513, 522 (D.C. Cir. 2002); see also Youssef v. FBI, 687 F.3d 397, 402 (D.C. Cir.
2012) (“‘[A]n extraordinary reduction in responsibilities’ constitut[es] materially adverse action
under Title VII.” (quoting Holcomb, 433 F.3d at 902)), here no such responsibilities were
removed. Stanazai concedes as much. Dkt. 68-1 at 2 (“The schedule of February 25, 2013 is not
an indication of . . . retaliation or [less] opportunity given to Mr. Stanazai . . . .”).
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,” id., and that the relative imbalance of shift editor
responsibilities between him and Abid Noor created by the February 25 schedule was “adverse to
Mr. Stanaz[a]i because it impact[ed] his chances to become a [M]anaging [E]ditor,” id. at 11. In
particular, Stanazai argues that Noor was assigned to work as the shift editor five days a week,
for a total of ten hours, while he was assigned to work as the shift editor only once a week, for a
total of two hours. See Dkt. 68-1 at 2, 11; Dkt. 67-7 at 2–3. This disparity, according to
Stanazai, substantially undermined his prospects for promotion to Managing Editor—a GS 13
position—because the “VOA[] [has] many times . . . promoted people [to GS 13] based on
[their] experience and education.” Dkt. 68-2 at 3. Stanazai also maintains, more generally, that
the disparity in allocation of shift editor responsibilities between him and Noor adversely
affected his opportunities to earn overtime and to obtain training. Id.
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 4.4 Stanazai has thus offered no support
for the inference that he was not promoted to Managing Editor because the February 25 schedule
failed to provide him with the opportunity to gain the type of experience that would have made
the difference in his application. Without some evidence that he was denied the December 2016
promotion because he lacked sufficient experience as a shift editor, no reasonable jury could find
that the February 25 schedule constituted the first step in a chain of events leading to a materially
adverse action or an adverse employment action. See Wiley v. Glassman, 511 F.3d 151, 161
(D.C. Cir. 2007) (per curiam) (upholding grant of summary judgment on a retaliation claim when
the plaintiff “failed to establish that a reduction in airtime responsibilities constituted a materially
adverse action” because she “offered nothing . . . establishing that the reduction in her airtime
4 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. 16
production—from 17 minutes to 13 minutes—could affect her compensation, grade, or
opportunity for future advancement”).
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.5 In response, the Board argues
that any changes to the schedules of Noor or Stanazai effected by the February 25 schedule did
not result in the objectively tangible harm required for a discrimination claim or the material
harm required for a retaliation claim. For several reasons, the Court agrees.
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. . . .
5 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, 170 F. Supp. 3d at 178. In his opposition to the present motion, for example, Plaintiff has failed to produce a list of material facts in dispute pursuant to Local Rule 7(h)(1) that cites to the record, instead offering a list of twenty-three questions and statements without support. “Although it is possible that these extensive materials might identify additional [relevant facts] not discussed in Plaintiff[’s] brief, it is not the Court’s role to mine the record in an effort to identify potentially helpful evidence not identified by the parties.” Id. (citing Bombard v. Fort Wayne Newspapers, 92 F.3d 560, 562 (7th Cir. 1996) (“It is not our function to scour the record in search of evidence to defeat a motion for summary judgment; we rely on the nonmoving party to identify with reasonable particularity the evidence upon which he relies.”)).
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 any 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., 548 U.S. at 68 (internal quotation marks omitted), or altered the terms of his
employment, see Wiley, 511 F.3d at 161.
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, 350 F.3d 1286, 1296 (D.C. Cir. 2003) (“Because
[the plaintiff] did not present any evidence upon which one could reasonably find she suffered an
adverse employment action, the district court properly granted summary judgment in favor of her
employer . . . .”).
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. Id. A schedule issued on July 8, 2013, if anything
further increased Stanazai’s responsibilities as a copy editor. Dkt. 70-1 at 2. Employer actions
regarding assignments or duties that are temporary in nature and not accompanied by economic
consequences are rarely cognizably adverse, whether considered in the context of a
discrimination or a retaliation claim. See Ng v. Lahood, 952 F. Supp. 2d 85, 95 (D.D.C. 2013)
(holding that “a limited reduction in work responsibilities” over “a limited period of time . . .
does not qualify as an adverse employment action” for purposes of a discrimination or retaliation
claim); Peyus v. Lahood, 919 F. Supp. 2d 93, 101–02 (D.D.C. 2013) (same); Brown v.
Georgetown Univ. Hosp. Medstar Health, 828 F. Supp. 2d 1, 9 (D.D.C. 2011) (approximately
two-week suspension with pay not an adverse employment action); see also Kangethe v. District
of Columbia, 206 F. Supp. 3d 661, 670 (D.D.C. 2016) (“[G]eneralized and speculative assertions
of benefits that may accrue from a temporary post are insufficient.”); cf. Forkkio, 306 F.3d at
1131–32 (removal of noneconomic benefits previously provided on temporary basis are not
adverse employment action). Similar to the plaintiff in Kangethe v. District of Columbia,
Stanazai has at most suggested that for a few weeks “he was denied an opportunity to carry
greater supervisory responsibilities[] [and] gain even more experience” that might “have opened
other avenues of advancement.” Kangethe, 206 F. Supp. 3d at 670. “These benefits are too
intangible and speculative” to be cognizably adverse. Id.
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. Id. This affidavit, however, is not germane to
whether the February 25 schedule constituted a cognizably adverse action for at least two
reasons.
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. Id. Second, and
more importantly, it says nothing about the key question before the Court—whether the February
25 schedule was sufficiently adverse to give rise to a retaliation or discrimination claim. At
most, it describes an earlier adverse employment action that is not presently before the Court.
By contrast, the Board has offered evidence that the February 25 schedule had no material effect
on Stanazai’s role at the Pashto Service; that the distribution of job responsibilities was
conducted in a manner consistent with both the broadcasters’ job descriptions and past practice;
and that Stanazai’s frustration with certain assignments was promptly addressed in a revised
schedule, which gave him substantially expanded editorial responsibilities. See Dkt. 67-5
(position description for Stanazai’s job); Dkt. 67-6 (Nasar Dep.); Dkt. 67-14 (Nasar Aff.); Dkt.
67-16 (Mendelson Aff.); Dkt. 67-7 (February 25 schedule); Dkt. 67-8 (schedule preceding
February 25 schedule); Dkt. 67-9 (schedule succeeding February 25 schedule). To the extent this
evidence does not wholly rebut Stanazai’s claim about the effect of the February 25 schedule,
moreover, the D.C. Circuit has stressed that “the burden on a defendant moving for summary
judgment may be discharged without factual disproof of the plaintiff’s case; the defendant need
only identify the ways in which the plaintiff has failed to come forward with sufficient evidence
to support a reasonable jury to find in [his] favor on one or more essential elements of [his]
claim.” Grimes v. District of Columbia, 794 F.3d 83, 93 (D.C. Cir. 2015). Stanazai’s conclusory
averments about the effect on his career resulting from the several weeks his office operated
under the February 25 schedule are insufficient for a reasonable jury to reach a verdict in his
favor.
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,
867 F.3d at 76. But this case differs materially from those cases in which a plaintiff’s own
declaration was deemed sufficient to avoid summary judgment. The plaintiff in Ortiz-Diaz, for
example, unlike Stanazai, offered “objective, non-conclusory statements of fact” in his
declaration that explained in detail how a transfer away from a biased supervisor would improve
his career prospects. Id. The defendant in that case, moreover, did not dispute that, “as a general
matter,” transfers of the type in question would “help[] one’s prospects for advancement.” Id. at
76. Here, in contrast, Stanazai fails to offer any non-conclusory explanation for how Noor’s
relatively more extensive shift-editor experience over a period of several weeks cost Stanazai a
promotion to Managing Editor three years later or otherwise materially affected his career. This
absence of evidence is fatal to both Stanazai’s claim that the schedule was an adverse
employment action and his argument that it would have “dissuaded a reasonable worker from
making or supporting a charge of discrimination.” Wiley, 511 F.3d at 161 (quoting Burlington
N., 548 U.S. at 68).
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.
/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge
Date: April 20, 2018