Abdelkarim v. Tomlinson ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
)
MOHAMED ABDELKARIM, et al., )
)
Plaintiffs, )
v. )
)
)Civ. Action No. 05-1783 (EGS)
)
KENNETH Y. TOMLINSON, )
Chairman, )
Broadcasting Board of Governors )
)
Defendant. )
___________________________________)
MEMORANDUM OPINION
This case arises from a employment dispute by former
employees of Voice of America (“VOA”) who were not hired by Radio
SAWA after a reorganization of VOA. Plaintiffs allege
discrimination based on national origin, religion, and age.
Defendant argues that the plaintiffs did not exhaust
administrative remedies and that their claims fail under
McDonnell Douglass because while they meet the prima facie test,
they cannot show pretext. Upon consideration of the motion,
responses and replies thereto, applicable law, and the entire
record, the Court finds that this case is fraught with genuine
issues of material facts in dispute. Accordingly, defendant’s
Motion for Summary Judgment is DENIED.
I. BACKGROUND
Plaintiffs were employees of VOA before it ended its Arabic
Service and switched to Radio SAWA, also an Arabic language radio
station supported by the U.S. Government. Plaintiffs include:
Mohamed Abdelkarim, a U.S. citizen of Egyptian background, who is
a practicing Sunni Muslim; Zainab Abdulrahman, a U.S. citizen of
Egyptian background, who is a practicing Sunni Muslim; Hayat
Alkhateeb, a U.S. citizen of Palestinian background, who lived in
Syria for many years and is a practicing Sunni Muslim; Amina El-
Bishlawy, a U.S. citizen of Egyptian Background, who is a
practicing Sunni Muslim; and Faiza Elmasry, a U.S. citizen of
Egyptian background, who is a practicing Sunni Muslim.
In early 2001, the Broadcasting Board of Governors decided
to replace the VOA Arabic Service with the Middle East Radio
Network (“MERN”), which eventually became known as Radio SAWA.
According to James Hooper, Radio SAWA’s staff director, “Radio
SAWA was set up because of the overwhelming need [of] the United
States government to reach people in the Middle East.” VOA
employees were allowed to compete for jobs with Radio SAWA
through an agreement that was worked out with their union. MERN
was allotted thirty-two positions; there were thirty-four
employees in the VOA Arabic Service. VOA posted vacancy
announcements for multiple positions at the GS-12 and GS-13 grade
levels. Pursuant to a memorandum of understanding worked out
between VOA and the union, VOA employees who were only seeking
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lateral reassignment to Radio SAWA were not required to apply
under a merit promotion vacancy announcement. Only employees who
were seeking promotion were required to apply under the merit
promotion announcement.
Jack Welch, the Director of Personnel, assured VOA staff
that current employees would be considered for positions with
Radio SAWA before outside employees and lower graded employees
were considered. Welch also set out other criteria for selecting
Radio SAWA employees in this order: The panel would first
consider internal candidates at grade of position to be filled;
if no internal candidates met the requirements, internal
candidates who did not apply but who were at grade of the
position to be filled would be considered; if none of the
candidates met those requirements, the panel would look to
internal applications for promotion; if none of these
requirements were met, then external candidates would be
considered. Welch noted that external hires or contractors would
be used only if a determination was made that no current staff
member meets the requirements for the position involved. The
personnel department determined whether candidates for promotion
met basic qualification requirements based on position
description and qualification requirements supplied by MERN. The
selection process was also governed by the Hatch-Mundt Act, 22
U.S.C. § 1474, which grants hiring preferences to U.S. citizens
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over non-citizens. Morever, according to VOA policy, “[a] non-
U.S. citizen may be appointed only after reasonable efforts to
recruit equally or better qualified U.S. citizens have been made
and have been unsuccessful.”
Susan King, the personnel specialist who assisted in the
processing of applications for the vacant positions, reviewed the
applications that were received through the merit/competitive
selection process to determine which candidates met the basic
qualifications for the positions. After candidates were ranked
by a committee of three individuals, King issued a merit
promotion certificate of eligibles to Moufac Harb, the Director
of Network News for Radio SAWA. This certificate contained the
names of the individuals with the top ten scores from the rating
panel, including plaintiffs Abdelkarim, Abdelrahman, and Elmasry.
King, however, was asked by her supervisor, Michael Conboy,
to retrieve the list and issue a list with only five eligible
candidates. The second certificate contained the names of
plaintiffs Abdulkarim and Abdelrahman. Later, Welch instructed
King to issue a third certificate that contained the names of all
seventeen candidates who applied for the available positions.
With the exception of Elmasry, who withdrew her application,
all of the plaintiffs applied for the GS-13 Supervisory
International Radio Broadcaster (“IRB”)/Shift Editor positions.
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They were all on the certificate of eligibles, and they were
interviewed by the selection committee. None of them was
selected for positions with Radio SAWA. All of the plaintiffs
also applied for the GS-12 IRB positions. They were all included
on the certificate of eligibles, and they were interviewed by the
selection committee. None of them was selected for positions
with Radio SAWA. Harb testified in his deposition that none of
the plaintiffs were even minimally qualified to perform the jobs
for which they applied.
Plaintiffs contacted VOA’s Office of Civil Rights on
November 7, 2002, and filed formal complaints on May 13, 2003.
In January 2004, plaintiffs elected to proceed to a hearing
before an administrative judge at the Equal Employment
Opportunity Commission (“EEOC”). Discovery with the EEOC closed
on January 11, 2005; plaintiffs withdrew their hearing request on
January 12, 2005. Plaintiffs then requested a Final Agency
Decision (“FAD”), which they received. On September 8, 2005,
plaintiffs filed suit in this Court. Discovery closed in this
case on April 9, 2007. Defendant filed a Motion for Summary
Judgment on August 15, 2007, which this Court denied without
prejudice on May 28, 2008. Defendant filed a renewed Motion for
Summary Judgment on June 13, 2008 that is currently before this
Court.
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II. DISCUSSION
A. Standard of Review
Pursuant to Rule 56 of the Federal Rules of Civil Procedure,
summary judgment should be granted only if the moving party has
shown that there are no genuine issues of material fact and that
the moving party is entitled to judgment as a matter of law. See
Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991 (D.C.
Cir. 2002). A fact is genuine "'if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.'"
Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
Facts are material if they "'might affect the outcome of the suit
under the governing law.'" Id. (quoting Anderson, 477 U.S. at
248).
The party seeking summary judgment bears the initial burden
of demonstrating an absence of genuine issues of material fact.
Celotex, 477 U.S. at 322; Tao v. Freeh, 27 F.3d 635, 638 (D.C.
Cir. 1994). "When a motion for summary judgment is properly made
and supported, [however,] an opposing party may not rely merely
on allegations or denials in its own pleading; rather, its
response must . . . set out specific facts showing a genuine
issue for trial." Fed. R. Civ. P. 56(e)(2); see also Celotex,
477 U.S. at 324. "'[A] mere unsubstantiated allegation . . .
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creates no genuine issue of fact and will not withstand summary
judgment.'" Ginger v. District of Columbia, 527 F.3d 1340, 1347
(D.C. Cir. 2008) (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C.
Cir. 1993)) (alterations in original). "Accepting . . .
conclusory allegations as true . . . would defeat the central
purpose of the summary judgment device, which is to weed out
those cases insufficiently meritorious to warrant the expense of
a jury trial." Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir.
1999).
In determining whether a genuine issue of material fact
exists, the Court must view all facts in the light most favorable
to the non-moving party. See Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986); Keyes v. District
of Columbia, 372 F.3d 434, 436 (D.C. Cir. 2004). "'As employers
rarely maintain records directly evidencing discrimination, an
added measure of rigor or caution is appropriate in applying this
standard to motions for summary judgment in employment
discrimination cases.'" Brownfield v. Bair, 541 F. Supp. 2d 35,
41 (D.D.C. 2008) (quoting Woodruff v. Peters, 482 F.3d 521, 526
(D.C. Cir. 2007)).
B. Analysis
1. Exhaustion of Administrative Remedies
Defendant argues that plaintiffs have failed to exhaust
administrative remedies because they abandoned the administrative
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process and failed to contact an Equal Employment Opportunity
(“EEO”) counselor on their harassment claim and their
discrimination and retaliation claims regarding pay assignments
and overtime within forty-five days. In Brown v. Tomlison, 462
F. Supp. 2d 16 (D.D.C. 2006), this Court found that a complainant
who timely elects a hearing before an EEOC administrative judge
may withdraw from the hearing and proceed to federal court. See
id. at 19-20. Plaintiffs in this case, however, went further
than the plaintiffs in Brown. Plaintiffs requested a FAD and
received one. They then filed suit in this Court within ninety
days of receipt of the FAD. Title VII authorizes a plaintiff to
file suit in federal court “[w]ithin 90 days of receipt of notice
of final action taken by a department, agency, or unit.” 42
U.S.C. § 2000e-16©. There is no reason for this Court to stray
from the well-reasoned decision in Brown.
Defendant also complains that the plaintiffs benefitted from
discovery before withdrawing their request for an administrative
hearing. Defendant, however, cites no case law that prevents
plaintiffs from the course of action they took. In fact, the
EEOC’s guidance makes clear that a complainant may voluntarily
withdraw a request for a hearing at any time. See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), 7-1 (Nov. 9, 1999) (“Generally, an
Administrative Judge will conduct a hearing on the merits of a
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complaint unless . . . the hearing request is voluntarily
withdrawn.”). Plaintiffs did exhaust their administrative
remedies, and their suit is properly before this Court.
2. Discrimination Claims
Plaintiffs allege that they were discriminated against based
on national origin, religion, and age in violation of Title VII.
Employee allegations of discrimination trigger the familiar
McDonnell Douglass burden-shifting framework in federal courts.
See Stella v. Mineta, 284 F.3d 135, 144 (D.C. Cir. 2002). In the
absence of direct evidence of discrimination, the courts use this
framework to determine whether an employee-plaintiff has a
colorable claim against his or her employer. See McDonnell
Douglass v. Green, 411 U.S. 792, 802 (1973). According to the
McDonnell Douglass framework, the plaintiff has the initial
burden of establishing a prima facie case of discrimination by a
preponderance of the evidence. See id.; Stella, 284 F.3d at 144.
If the plaintiff succeeds in making out a prima facie case, the
burden shifts to the employer to articulate a legitimate,
non-discriminatory reason for its actions. Stella, 284 F.3d at144 (citing McDonnell Douglas, 411 U.S. at 802). If the employer
articulates a non-discriminatory reason for the adverse
employment action, the burden then shifts back to the plaintiff,
who must demonstrate that the employer's stated reason was merely
pretext and that the true reason was discriminatory. Id. (citing
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McDonnell Douglas, 411 U.S. at 802). If the plaintiff cannot
demonstrate pretext, the employee's claims necessarily fail.
To establish a prima facie case of a discriminatory failure
to promote or hire, plaintiffs must show: (1) that they belong to
a protected group; (2) that they applied and were qualified for a
job for which the employer was seeking applicants; (3) that
despite their qualifications, they were rejected; and (4) that
individuals were selected to fill the positions. See Cones v.
Shalala, 199 F.3d 512, 516 (D.C. Cir 2000) (citing McDonnell
Douglas, 411 U.S. at 802).
Defendant acknowledges that plaintiffs have established a
the prima facie case. The burden is now upon the defendant to
articulate a non-discriminatory reason for its failure to promote
or hire. While defendant argues that plaintiffs were not
promoted or hired because plaintiffs failed to demonstrate that
they had a “skill set” or the background for the new positions,
the Court cannot make that determination at this stage because
there are numerous material facts that are in dispute. For
example, there is a dispute about why three different lists of
qualified candidates were produced. Plaintiffs argue that one of
the selectees complained to Harb that she was not on the original
list and that Harb intervened on her behalf. Harb denies this.
There is also some discrepancy about who made the final decision
about who was hired. Harb says that the decision was made by the
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committee. There is evidence in the record that indicates that
Harb made the decision and the other committee members deferred
to him because he spoke Arabic. There also seems to be a dispute
about why plaintiffs were not hired. While defendant argues that
plaintiffs were not qualified, Harb testified that he has no
memory of the interviews with plaintiffs. Harb also goes back
and forth during his testimony about whether or not he knew the
ratings and scores of the candidates. After claiming that
plaintiffs were not qualified for the jobs for which they
applied, Radio SAWA continued to rely heavily on them for
assignments. Finally, plaintiffs were required to train many of
the people who were hired for the jobs for which plaintiffs
applied.
These disputed facts are not exhaustive but are merely
examples culled from the pleadings. These issues are genuine,
material, and disputed. These claims are not ripe for summary
judgment.
3. Hostile Work Environment Claim
To establish a prima face case for a hostile work
environment claim, a plaintiff must show that: “(1) he is a
member of a protected class; (2) he was subjected to unwelcome
harassment; (3) the harassment occurred because of the
plaintiff's protected status; (4) the harassment affected a term,
condition, or privilege of employment; and (5) the employer knew
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or should have known about the harassment, but nonetheless failed
to take steps to prevent it.” Baloch v. Norton, 355 F. Supp. 2d.
246, 259 (D.D.C. 20005). Courts must look at the totality of the
circumstances when making a determination of whether a hostile
work environment exists. Faragher v. City of Boca Raton, 524
U.S. 775, 787 (1998). This determination includes examining “the
‘frequency of the discriminatory conduct; its severity; whether
it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an
employee’s work performance.’” Id. at 787-88 (quoting Harris v.
Forklift Sys., Inc., 510 U.S. 12, 23 (1993)).
Defendant acknowledges that plaintiffs are members of a
protected class. Viewing the facts in the light most favorable
to the non-moving party, it is clear that plaintiffs’ claims of a
hostile work environment are not ripe for summary judgment.
Plaintiffs allege that Harb said that he would “clean the Arabic
Branch of Egyptians” and that there were too many Egyptians in
the Arabic Service. He also changed the VOA style to give
preference to Lebanese dialects, phrasing, colloquialisms, and
pronunciations. Plaintiffs allege that Harb routinely made
derisive comments about Radio Cairo, where many of the plaintiffs
had previously worked. They allege that he repeatedly denigrated
the Egyptian dialect and ridiculed Egyptian cultural icons on a
daily basis. Plaintiffs do not complain of isolated incidents;
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they complain of an on-going pattern of hostility towards their
national origin, culture, and background. They also complain of
comments that Harb frequently made about their age.
“When the workplace is permeated with discriminatory
intimidation, ridicule, and insult that is sufficiently severe or
pervasive to alter the conditions of the victim's employment and
create an abusive working environment, Title VII is violated.”
Harris, 510 U.S. at 21 (internal citations and quotation marks
omitted). Based on plaintiffs’ allegations, a jury could find
that the alleged “discriminatory conduct was so severe or
pervasive that it created a work environment abusive to employees
because of their [age], religion, or national origin [and
therefore] offends Title VII's broad rule of workplace equality.”
Id. at 22. Plaintiffs have established a prima facie case, and a
jury could find that defendant violated Title VII. Defendant’s
motion for summary judgment on the hostile work environment
claims are similarly denied.
III. CONCLUSION
For the foregoing reasons, defendant’s Motion for Summary
Judgment is DENIED. An appropriate Order accompanies this
Memorandum Opinion.
SO ORDERED.
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Signed: EMMET G. SULLIVAN
UNITED STATES DISTRICT JUDGE
March 20, 2009
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