Stanazai v. Broad. Bd. of Governors, Civil Action 17-2653 (RDM)

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtRANDOLPH D. MOSS, United States District Judge
Docket NumberCivil Action 17-2653 (RDM)
Decision Date12 May 2022



Civil Action No. 17-2653 (RDM)

United States District Court, District of Columbia

May 12, 2022


RANDOLPH D. MOSS, United States District Judge

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, 308 F.Supp.3d 396, 399 (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”), 29 U.S.C. § 621 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.



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, 867 F.3d 204, 209 (D.C. Cir. 2017) (quoting Al-Saffy v. Vilsack, 827 F.3d 85, 89 (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,


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


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


previously entered judgment in favor of the Board on those claims in a prior litigation. Id. at 8; see also Achagzai, 308 F.Supp.3d at 399. 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.


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...

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