Kurtiev v. Shell ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AYDER KURTIEV,
Plaintiff,
v.
No. 15-cv-1839 (EGS)
JEFFREY SHELL, et al.,
Defendants.
MEMORANDUM OPINION
I. Introduction
Plaintiff Ayder Kurtiev (“Mr. Kurtiev”) brings this action
against the Defendant Jeff Shell, the Chair of the Broadcasting
Board of Governors (“BBG”), and Defendant BBG, which oversee the
component broadcaster, the Voice of America (“VOA”)
(collectively “Defendants” or “VOA”) alleging discrimination on
the basis of national origin and/or religion, and retaliation
under Title VII of the Civil Rights Act of 1964 (“Title VII”),
42 U.S.C. § 2000e-2 et seq. Pending before the Court is
Defendants’ Motion for Summary Judgment. See Defs.’ Mot., ECF
No. 32. The Court has carefully considered the motion, the
response and reply thereto, the applicable law, and the entire
record herein. The Court GRANTS Defendants’ Motion for Summary
Judgment.
II. Background
A. Factual Background
Except where indicated, the following facts are not in
dispute. Mr. Kurtiev, who identifies as Muslim, with a Crimean
Tatar ethnic background, is a naturalized United States citizen
originally from Uzbekistan, part of the former Soviet Union.
Compl., ECF No. 1 at 3 ¶ 8. 1 His native language is Russian, and
he was educated in Russian language schools in Uzbekistan. Id.
The VOA hired Mr. Kurtiev on June 21, 2009, to be the Managing
Editor of its Russian Service. Defs.’ Mot., ECF No. 32-1 at 7.
Throughout his entire employment with the VOA, Mr. Kurtiev was a
probationary employee, which meant he could be “terminated at
any time during [the two-year trial period] because of
deficiency in performance, unsatisfactory conduct,
unsuitability, or changes in VOA programming or staffing needs.”
Defs.’ Ex. Z, ECF No. 32-28 at 2. During Mr. Kurtiev’s tenure at
the VOA, Dr. Elez Biberaj, Director of the Eurasian Division,
was his “first-line supervisor.” Pl.’s Ex. 4, ECF No. 36-3 at
6:20-21; Pl.’s Ex. 6, ECF No. 36-4 at 23:3-5.
1 When citing electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document with the exception of deposition testimony, which
is to the page number of the deposition transcript.
2
1. Mr. Kurtiev’s Witness Affidavit in the
Investigation of Najia Badykova’s Equal Employment
Opportunity Complaint
On September 4, 2009, Ms. Badykova, a VOA Russian Service
contractor, was informed that her contract would not be renewed.
Defs.’ Ex. A, ECF No. 32-3 at 3, 4. Mr. Kurtiev was responsible
for “review[ing] Ms. Badykova’s work product for acceptance
under the terms of the contract.” Id. at 3. At the time this
decision was made, Ms. Badykova had a pending Equal Employment
Opportunity (“EEO”) claim alleging that she had been
discriminated against based on her religion when she was not
selected for a position within the VOA. Defs.’ Ex. D, ECF No.
32-6 at 4. The EEO investigation of that claim included
investigating the decision not to renew her contract as she
later alleged that her contract was not renewed in retaliation
for her EEO activity. See id. at 11.
In January 2010, Mr. Kurtiev submitted a Witness Affidavit
as part of the investigation of Ms. Badykova’s EEO Claim. See
Defs.’ Ex. A, ECF No. 32-3 at 4. Prior to the submission of the
affidavit, and in response to Mr. Kurtiev’s requests, several
VOA officials reviewed the document, which was common practice
at the VOA. Defs.’ Ex. F, ECF No. 32-8 at 27:20–28:2; Defs.’ Ex.
B, ECF No. 32-4 at 151:3–11. Though he now denies that the
decision was his to make, Mr. Kurtiev averred that “I, Ayder
Kurtiev, Managing Editor, made the decision not to renew the
3
Complainant's contract. . . . The Complainant's contract was not
renewed due to changing operational requirements in the Russian
Service.” Defs.’ Ex. A, ECF No. 32-3 at 4.
2. March 2010 Incident Involving Mr. Kurtiev and Two
Subordinate, Female Employees
In the afternoon of March 10, 2010, two Russian Service
employees—Anna Terterian and Yulia Appel—came to Mr. Kurtiev’s
office to discuss changes that had been made to their shifts.
Pl.’s Counter Statement of Facts, ECF No. 39 at 6. Following
that meeting, Ms. Terterian called another VOA employee, Karine
Roushanian, who in an email she sent to Dr. Biberaj the morning
of March 11, 2010, stated that Ms. Terterian “was crying so hard
that she could hardly talk” and “did not know how to deal with
what just happened to her and [Ms. Appel.]” Id. (citing Defs.’
Ex. N, ECF No. 32-16 at 2); see also Defs.’ Ex. O, ECF No. 32-17
at 26:10–27:3, 27:22–29:2. In the same email, Ms. Roushanian
stated that Ms. Terterian told her that Mr. Kurtiev responded to
a question about shift responsibilities by “laugh[ing] in a
shameless way,” translated his Russian statement into English as
“[i]f you do so, the next day when you come they [the Division]
will have you in different poses,[”] and that he accompanied his
statement “with some moves with the chair.” Pl.’s Counter
Statement of Facts, ECF No. 32 at 6-7 (citing Defs.’ Ex. N, ECF
No. 32-16 at 2; see also Defs.’ Ex. O, ECF No. 32-17 at 28:21-
4
29:1-10. Dr. Biberaj forwarded the e-mail to Ain Munn, a Labor
and Employee Relations (“LER”) Specialist in the VOA’s Office of
Human Resources, asking to meet at her earliest convenience to
discuss the incident. Defs.’ Ex. R, ECF No. 32-20 at 2; see also
ECF No. 32-1 at 8 (explaining Ms. Munn’s job responsibilities).
Also in the morning of March 11, 2010, Ms. Terterian
described the incident in an email to Ms. Appel and Ms. Appel
agreed with her description of the incident. Defs.’ Ex. M, ECF
No. 32-15 at 2. In that email, Ms. Terterian translated the
statement “[a]nd then the next day they will f*** you in as many
positions as they can.” Id. Ms. Terterian then sent the email to
Ms. Munn. See id. Mr. Kurtiev denies that he made the statement
and points out differences in Ms. Terterian’s English
translation of the statement, specifically that on the day of
the incident she translated the phrase to include the word
“have” but on the next day, she translated the phrase to include
the “f” word. Pl.’s Opp’n, ECF No. 36 at 13.
On the same day, LER staff met with Ms. Roushanian, who
reiterated that when Ms. Terterian called her the day before,
Ms. Terterian “was extremely upset . . . to the point she could
not understand what was being said.” Defs.’ Ex. S, ECF No. 32-21
at 2. LER staff “then met with Ms. Terterian who was visibly
upset when she began discussing the interaction with Mr.
Kurtiev. Ms. Terterian also demonstrated how Mr. Kurtiev moved
5
the chair when he made the . . . statement.” Id. Ms. Terterian
was placed on administrative leave for the remainder of that day
and for the next day. Id. Ms. Munn testified that she met with
Ms. Appel after meeting with Ms. Terterian and that Ms. Appel
said the same thing that Ms. Terterian said about the incident
during the meeting with Mr. Kurtiev. Pl.’s Ex. 33, ECF No. 36-14
at 51:14-16. Mr. Kurtiev disputes that Ms. Munn met with Ms.
Terterian in person because her notes of the meeting include Ms.
Terterian’s telephone number and that Ms. Munn met with Ms.
Appel because no notes of the meeting with Ms. Appel have been
produced despite Ms. Munn’s statement in her deposition that she
“takes notes for every meeting.” Id. at 54:16-55:7; 53:4; see
also ECF No. 40 at 31. LER staff then met with Mr. Kurtiev, who
“adamantly denied making any offensive statements to Ms. Appel
and Ms. Terterian.” Defs.’ Ex. S, ECF No. 32-21 at 2. LER staff
determined that “a full inquiry needed to be conducted and Mr.
Kurtiev was placed on administrative leave pending the outcome
of the investigation.” Id.
LER staff investigated the incident by interviewing sixteen
Russian Service employees, asking each individual the same
twenty-two questions, and then drafting summaries of the
interviews. Defs.’ Ex. L, ECF No. 32-13 at 61:8–13. Mr. Kurtiev
does not dispute that the VOA conducted interviews with most of
the Russian Service employees, nor the results of those
6
interviews, but he disputes that the phrase was translated
properly by the Russian Service employees, and his expert, an
employment lawyer who conducts investigations into workplace
misconduct, disputes whether VOA’s investigation was fair and
reliable. Pl.’s Ex. 10, ECF No. 36-7 at 20.
Seven of the Russian Service employees stated that Mr.
Kurtiev used inappropriate or profane language in the workplace,
including the “f” word. Defs.’ Ex. Y, ECF No. 32-27 at 2; see
also Defs.’ Ex. W, ECF No. 32-25 at 5 (stating that he has heard
Mr. Kurtiev use the “f” word); 10 (stating that Mr. Kurtiev
“use[d] profanity (f***, s***) when he is upset”) (profanity
altered); 13 (“Mr. Kurtiev often uses [phrase] and profanity
(f***) that undereducated Russian people would use in informal
settings.”) (profanity altered); 21 (stating that Mr. Kurtiev
“often said m*****f*** or similar words often in Russian but not
in English”) (profanity altered); 26 (stating that he has heard
Mr. Kurtiev use the “f” word); 30 (stating that she has heard
Mr. Kurtiev use the “f” word but not often); 32 (stating that
she has heard Mr. Kurtiev use the “f” word many times).
Regarding the statement at issue, all of the employees
translated the Russian phrase as having a sexual connotation or
otherwise being inappropriate in a workplace. See, e.g., Defs.’
Ex. W, ECF No. 32-25 at 4 (“He stated that it meant to f*** you
different [sic] positions. The phase is absolutely
7
unacceptable.”) (profanity altered); 6 (“it meant they will f***
you in different positions”) (profanity altered); 9 (“They will
have you sexually in many different positions.”); 14 (“they will
f*** you in other positions”) (profanity altered); 18 (“They
will f*** you in different positions”).
Mr. Kurtiev does not dispute that the interviewed employees
made the statements or that some of these employees’ job
responsibilities included translating Russian into English, but
he contends that “[t]he members of the Russian Service were not
qualified to do translation because of their poor English. The
Russian Service had to use professional translators because
members of the Russian Service did such a poor job when they
tried to translate.” Pl.’s Opp’n, ECF No. 36 at 32 (citing Pl.’s
Ex. 6, ECF No. 36-4 at 86-87, 222-224).
On March 19, 2010, Donna Grace, Director of the Office of
Human Resources, informed Ms. Munn via email that “Dan Austin [,
Director of the Voice of America] has made the decision to
terminate Mr. Kurtiev’s employment.” Defs.’ Ex. X, 32-26 at 2.
This email was sent in response to an undated email from Ms.
Munn in which she stated, “here are the statements our office
has so far for the Russian Service.” Id. Later that day, Tisha
Elliott, another LER staff member, informed Ms. Munn that Mr.
Kurtiev had called her and stated that he had additional
information that would be helpful to the investigation. Pl.’s
8
Ex. 20, ECF No. 36-11 at 4. In the afternoon of March 22, 2010,
Mr. Kurtiev, at his request, met with Ms. Munn to provide the
additional information to her. Defs.’ Ex. B, ECF No. 32-4 at
220:6-7; Defs.’ Ex. U, 32-23 at 13.
In a Notice of Termination of Appointment letter dated
March 24, 2010, the VOA informed Mr. Kurtiev that his contract
would not be renewed or extended, but would expire on April 24,
2010. Defs.’ Ex. Z, ECF No. 32-28 at 2. The letter stated that
the VOA “determined that [he had] displayed unacceptable conduct
during [his] tenure with VOA,” specifically referencing the
March 10, 2010 incident with the two subordinate female
employees. Id. The letter also referenced a memorandum from Dr.
Biberaj, which was included with the letter, and which
summarized the unacceptable behavior. Id. The memorandum from
Dr. Biberaj stated that his recommendation to terminate Mr.
Kurtiev’s employment was based on conduct rather than
performance or personality traits. Defs.’ Ex. C, ECF No. 32-5 at
2. The memorandum further stated that the conduct for which the
recommendation was being made was: (1) the March 10, 2010
incident; and (2) that the investigation of that incident
revealed that “Mr. Kurtiev has made several inappropriate
remarks throughout his tenure.” Id. The Notice of Termination of
Appointment letter informed Mr. Kurtiev of his “right to request
that the VOA reconsider its determination concerning your
9
fitness for continued employment” and explained the process for
doing so. Defs.’ Ex. Z, ECF No. 32-28 at 2. Two days later, on
March 26, 2010, Mr. Kurtiev responded to the Notice of
Termination in a fourteen-page document in which he, among other
things, denied that the statement translated as “they will f--
you in different positions or anything close to that,” and
alleging that the employees who made the complaint were
disgruntled against him because of the change to their shifts.
Defs.’ Mot., ECF No. 32-1 at 12; Defs.’ Ex. U, ECF No. 32-23 at
2.
Thereafter, Mr. Kurtiev sent a letter, through counsel,
requesting that the VOA reconsider its decision and seeking a
meeting with the final decision-maker, John Lennon, Associate
Director for Language Programming. Defs.’ Ex. AA, ECF No. 32-29
at 2. Pursuant to that request, Mr. Kurtiev, his attorney, Mr.
Lennon, and Ms. Munn met on April 8, 2010. Defs.’ Ex. CC, ECF
No. 32-31. At that meeting, Mr. Kurtiev provided an Affidavit
from Ms. Laimute Lipinskaite, who averred that she is fluent in
the Russian language, asserted that the phrase had been
translated incorrectly, and provided an alternate translation
that did not have a sexual connotation. Defs.’ Ex. Y, ECF No.
32-27 at 2-3. On April 9, 2010, Mr. Lennon received Mr.
Kurtiev’s written statement. Defs.’ Ex. Y, ECF No. 32-27. And on
April 12, 2010, his attorney sent a letter following up to that
10
meeting. Defs.’ Ex. CC, ECF No. 32-31.
In a Decision Notice-Termination of Appointment letter
dated April 19, 2010, Mr. Kurtiev was informed that Mr. Lennon
had determined to uphold the decision to terminate Mr. Kurtiev’s
appointment. Defs.’ Ex. Y, ECF No. 32-27 at 4. That letter
stated that, in addition to the March 10, 2010 incident, the VOA
based its decision on reports that Mr. Kurtiev had “repeatedly
and frequently made inappropriate statements to several members
of the Russian Service.” Id.
Mr. Kurtiev filed a formal Equal Employment Opportunity
(“EEOC”) complaint on June 7, 2010, and on August 5, 2015, the
EEOC issued a right to file suit notice. Compl., ECF No. 1 at 1.
B. Procedural History
On October 15, 2015, Mr. Kurtiev timely filed the current
action. See Compl., ECF No. 1. Defendants filed their Motion for
Summary Judgment on May 15, 2019. Defs.’ Mot., ECF No. 32. Mr.
Kurtiev filed his Opposition Response on August 30, 2019, see
Pl.’s Opp’n, ECF No. 36, and Defendants filed their Reply on
October 2, 2019, Defs.’ Reply, ECF No. 37. The motion is ripe
and ready for the Court’s adjudication.
III. Legal Standard
Pursuant to Federal Rule of Civil Procedure 56, summary
judgment should be granted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is
11
entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); Waterhouse v. District of Columbia, 298 F.3d 989, 991
(D.C. Cir. 2002). The moving party must identify “those portions
of the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, which
it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986) (internal quotation marks omitted). To defeat summary
judgment, the nonmoving party must demonstrate that there is a
genuine issue of material fact. Id. at 324. A material fact is
one that is capable of affecting the outcome of the
litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A genuine dispute is one where “the evidence is such
that a reasonable jury could return a verdict for the nonmoving
party.” Id. Further, in the summary judgment analysis “[t]he
evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.” Id. at
255.
IV. Analysis
Under Title VII, it is unlawful for an employer to: (1)
“discriminate against any individual with respect to [his]
compensation, terms, conditions, or privileges of employment,
because of [his] race, color, religion, sex, or national
origin,” 42 U.S.C. § 2000e-2(a)(1); or (2) retaliate against any
12
individual for participating in a protected activity, 42 U.S.C.
§ 2000e-3(a).
Discrimination and retaliation claims are subject to the
burden-shifting framework set forth in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802–05 (1973). As the Court of Appeals
for the District of Columbia Circuit (“D.C. Circuit”) has
instructed:
A plaintiff must first establish her prima
facie case. To state a prima facie case of
discrimination, a plaintiff must allege she
is part of a protected class under Title VII,
she suffered a cognizable adverse employment
action, and the action gives rise to an
inference of discrimination. Stella v. Mineta,
284 F.3d 135, 145 (D.C. Cir. 2002). For a
retaliation claim, the plaintiff must allege
that she engaged in activity protected by
Title VII, the employer took adverse action
against her, and the employer took that action
because of the employee's protected conduct.
Hamilton v. Geithner, 666 F.3d 1344, 1357
(D.C. Cir. 2012).
If the plaintiff clears that hurdle, the
burden shifts to the employer to identify the
legitimate, nondiscriminatory or non-
retaliatory reason on which it relied in
taking the complained-of action. Holcomb v.
Powell, 433 F.3d 889, 896 (D.C. Cir. 2006).
Assuming the employer proffers such a reason,
the “central question” at summary judgment
becomes whether “the employee produced
sufficient evidence for a reasonable jury to
find that the employer's asserted
nondiscriminatory or nonretaliatory reason
was not the actual reason and that the
employer intentionally discriminated or
retaliated against the employee.” Allen v.
Johnson, 795 F.3d 34, 39, No. 13–5170, 2015 WL
4489510, at *3 (D.C. Cir. July 24, 2015)
13
(brackets omitted) (quoting Brady, 520 F.3d at
494); see also Hamilton, 666 F.3d at 1351.
A plaintiff may support an inference that
the employer's stated reasons were pretextual,
and the real reasons were prohibited
discrimination or retaliation, by citing the
employer's better treatment of similarly
situated employees outside the plaintiff's
protected group, its inconsistent or dishonest
explanations, its deviation from established
procedures or criteria, or the employer's
pattern of poor treatment of other employees
in the same protected group as the plaintiff,
or other relevant evidence that a jury could
reasonably conclude evinces an illicit motive.
Walker v. Johnson, 798 F.3d 1085, 1091 (D.C. Cir. 2015).
The VOA argues that it had legitimate, non-discriminatory
reasons for terminating Mr. Kurtiev’s probationary employment,
and that Mr. Kurtiev cannot demonstrate that the reasons were
pretextual. See Defs.’ Mot., ECF No. 31-1 at 19. In response,
Mr. Kurtiev argues that there “are many disputed issues of
material fact,” concerning his “Title VII retaliation claim and
the related discrimination claim,” such that the VOA is not
entitled to summary judgment. Pl.’s Opp’n, ECF No. 36 at 1. The
VOA replies that it is entitled to summary judgment because each
of Mr. Kurtiev’s theories rely “on untenable leaps in logic and
fail[] to cast doubt on the clear basis for terminating [Mr.]
Kurtiev—his misconduct with two female subordinates.” Defs.’
Reply, ECF No. 37 at 4.
14
A. Mr. Kurtiev Has Failed to Produce Sufficient Evidence
From Which a Reasonable Jury Could Find that the VOA’s
Stated Reason for Terminating Him Was Pretext for
Discrimination Based on National Origin and/or
Religion
Mr. Kurtiev alleges that he was discriminated against based
on his national origin and/or religion when his employment was
terminated. Compl., ECF No. 1 at 26 ¶ 189. To demonstrate that
it had a legitimate, non-discriminatory reason for its actions,
the VOA asserts that it terminated Mr. Kurtiev after it: (1)
“received a report from two female employees stating that [Mr.
Kurtiev] responded to a work-related question with vulgar
language and gestures,” Defs.’ Mot., ECF No. 32-1 at 19; (2)
found the allegations credible after investigating the claim,
see id.; and (3) during the investigation learned that many of
Mr. Kurtiev’s subordinates reported that he “frequently used
inappropriate and vulgar language in the workplace.” Id.
To support its legitimate, non-discriminatory reason for
terminating Mr. Kurtiev’s employment, the VOA provided evidence
that: (1) on March 11, 2010, two female, subordinate employees
notified LER staff by email that Mr. Kurtiev had stated to them
in Russian, “then the next day they will f*** you in as many
positions as they can.” Defs.’ Ex. M, ECF No. 32-15 at 2; (2)
LER staff met with Mr. Kurtiev to discuss the incident, see
Defs.’ Ex. B, ECF No. 32-4 at 176:8-178:21; and (3) LER staff
interviewed sixteen Russian Service employees who worked with
15
Mr. Kurtiev, all of whom translated Mr. Kurtiev’s statement as
having a sexual connotation, and many of whom stated that Mr.
Kurtiev used inappropriate or vulgar language in the workplace.
Defs.’ Ex. W, ECF No. 32-25.
Courts have found that the use of inappropriate language in
the workplace can constitute a legitimate, non-discriminatory
reason for an adverse employment action. See Thompson v.
Sessions, 278 F. Supp. 3d 227, 243 (D.D.C. 2017) (rejecting
comparator evidence as support for pretext when an employee was
reprimanded for using profanity when speaking to other employees
during angry tirades even though a younger employee of a
different gender was not reprimanded for using profanity);
Stewart v. Fed. Commc'ns Comm'n, 279 F. Supp. 3d 209, 221
(D.D.C. 2017) (noting that the employer’s refusal to award an
annual bonus due to the employee’s use of profanity was
legitimate and non-retaliatory).
Since the VOA has “asserted a legitimate, non-
discriminatory reason for” terminating Mr. Kurtiev, the Court
need not examine whether Mr. Kurtiev made out a prima facie case
of national origin and/or religious discrimination as it is “no
longer relevant.” Brady v. Office of Sergeant at Arms, 520 F.3d
490, 493 (D.C. Cir. 2008). At this point, under the McDonnell
Douglas framework, the burden has shifted back to Mr. Kurtiev to
demonstrate that the VOA’s “stated reasons were pretextual, and
16
the real reasons were prohibited discrimination or retaliation.”
Walker, 798 F.3d at 1092. And “the central question at summary
judgment becomes whether the employee produced sufficient
evidence for a reasonable jury to find that the employer's
asserted nondiscriminatory or nonretaliatory reason was not the
actual reason and that the employer intentionally discriminated
or retaliated against the employee. Id. at 1092 (internal
quotation marks and citation omitted).
1. Insufficient Evidence of Pretext Based on Mr.
Kurtiev’s Testimony that He Did not Make the Statement 2
The Court may not “second-guess an employer’s personnel
decision absent demonstrably discriminatory motive.” Fischbach
v. District of Columbia Dep’t of Corr., 86 F.3d 1180, 1183 (D.C.
Cir. 1996) (internal quotation marks and citation omitted).
“Once the employer has articulated a non-discriminatory
explanation for its action, as did the [employer] here, the
issue is not the correctness or desirability of [the] reasons
offered . . . [but] whether the employer honestly believes the
reasons it offers.” Id. An inference of pretext could be
appropriate where “the employer made an error too obvious to be
unintentional” because in such a situation, “perhaps [the
employer] had an unlawful motive for doing so.” Id.
2 This analysis is equally applicable to Mr. Kurtiev’s argument
that he was terminated in retaliation for engaging in protected
activity.
17
Mr. Kurtiev, citing his deposition testimony, denies that
he made the statement during the meeting with Ms. Appel and Ms.
Terterian. Pl.’s Opp’n, ECF No. 36 at 3. LER staff was informed
of the incident the day after it occurred and began
investigating it that day. LER staff interviewed Ms. Terterian
and Ms. Appel in person and separately. Each described the
incident consistently. LER staff then interviewed Mr. Kurtiev,
who denied making the statement. Over the next week, LER staff
interviewed sixteen members of the Russian Service, seven of
whom stated that Mr. Kurtiev used inappropriate and/or profane
words in the work place. Finally, Ms. Munn made credibility
determinations based on her “discussions with Ms. Appel and Ms.
Terterian, Ms. Terterian’s emotional state, [and] the
translation of the statement that each member of the Russian
Service translated to being the same.” Defs.’ Ex. K, ECF No. 32-
13 at 73:11-16.
The VOA concluded that although Mr. Kurtiev denied making
the statement, “the charge [of having made the statement] was
supported by a preponderance of the evidence, i.e., accounts
from two employees, both of whom were in the room when the
comment was made.” Defs.’ Ex. Y, ECF No. 32-27 at 2. Mr.
Kurtiev’s denial of having made the statement does not call
into question whether the VOA “honestly believe[d] the reasons
it offers,” nor does his denial suggest “the employer made an
18
error too obvious to be unintentional.” Fischbach, 86 F.3d at
1183. Moreover, his own self-serving assertions do not give rise
to a triable issue of fact. Toomer v. Mattis, 266 F. Supp. 2d
184, 200 (D.D.C. 2017) (Sullivan, J.).
For all of these reasons, Mr. Kurtiev’s denial of having
made the statement does not provide evidence from which “a
reasonable jury could not only disbelieve the employer's
reasons, but conclude that the real reason the employer took a
challenged action was a prohibited one.” Walker, 798 F.3d at
1093.
2. Insufficient Evidence of Pretext Based on the
Translation of the Phrase 3
Mr. Kurtiev argues that the VOA relied on an inaccurate
translation of the phrase in making its decision, pointing out
that he provided VOA management with alternate translations of
the phrase by a “fluent Russian speaker” and a “native Russian
speaker,” neither of which had a sexual connotation. Pl.’s
Opp’n, ECF No. 36 at 2, 3, 22-23. All sixteen Russian Service
employees who were asked to translate the phrase translated it
as having a sexual connotation. See Defs.’ Ex. W, ECF No. 32-35.
The VOA found the translation of the phrase as having a sexual
connotation to be more credible, stating that “there is no
3 This analysis is equally applicable to Mr. Kurtiev’s argument
that he was terminated in retaliation for engaging in protected
activity.
19
reason for Russian Service employees, some of whom expressed
support for your leadership, to misrepresent the meaning of the
phrase.” Defs.’ Ex. Y, ECF No. 32-27 at 3. The VOA also noted it
obtained a generic translation of the phrase using Google which
also had a sexual connotation. Id. Finally, the VOA dismissed
Mr. Kurtiev’s alternate translations of the phrase: the “poor
judgment [Mr. Kurtiev] displayed . . . by attempting to provide
a false translation to mitigate [his] misconduct lead me to
conclude that [his] removal from federal service is justified
and necessary.” Defs.’ Ex. Y, ECF No. 32-27 at 3-4.
Although Mr. Kurtiev attempts to cast doubt on the ability
of Russian Service employees to accurately translate the phrase
into English, he testified that for some of those who provided
the translation, performing translations was part of their day-
to-day jobs. Defs.’ Ex. B, ECF No. 32-4 at 222:7-225:6. Based on
this evidence, it is clear that VOA management “honestly
believe[d] the reasons it offer[ed]” and these facts do not
suggest “the employer made an error too obvious to be
unintentional.” Fischbach, 86 F.3d at 1183. And Mr. Kurtiev’s
alternate translations without a sexual connotation balanced
against the unanimous translations with a sexual connotation
does not create a genuine issue for trial because “[w]here the
record taken as a whole could not lead a rational trier of fact
to find for the non-moving party, there is no genuine issue for
20
trial.” Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475
U.S. 574, 587 (1986) (internal quotation marks and citation
omitted).
For all of these reasons, Mr. Kurtiev has failed to provide
evidence from which “a reasonable jury could not only disbelieve
the employer's reasons, but conclude that the real reason the
employer took a challenged action was a prohibited one.” Walker,
798 F.3d at 1093.
3. Insufficient Evidence of Pretext Based on Certain
Russian Service Employees’ Alleged Racial Animus
Towards Non-Russians
Mr. Kurtiev argues that a reasonable jury could infer a
discriminatory basis for his termination because some Russian
Service employees used racial slurs in the workplace, Pl.’s
Opp’n, ECF No. 36 at 2, 19; and because the decision to
terminate him relied on the summaries of the interviews with
Russian Service employees, some of whom showed discriminatory
animus during their interviews, id. at 14-16. To support his
argument that some Russian Service employees used racial slurs
in the workplace, Mr. Kurtiev cites his own interrogatory
answers, Pl.’s Ex. 5, ECF No. 36-3 at 27-28; his own affidavit,
Pl.’s Ex. 1, ECF No. 36-1 ¶ 2; and Ms. Munn’s notes of the April
8, 2010 meeting between Mr. Kurtiev, his attorney, Mr. Lennon
and herself, where Mr. Kurtiev made the same allegation, Pl.’s
Ex. 27, ECF No. 36-12 at 7-8. Mr. Kurtiev also points to the
21
summaries of the interviews with six of the Russian Service
employees. Id. at 15-16 (citing Defs.’ Ex. W, ECF No. 32-25 at 5
(“Mr. Kurtiev is out of place in his current position . . .
[and] has no knowledge of the Russian language since he is not
from Russia but rather Central Asia.”); 13 (attributing Mr.
Kurtiev’s profanity to his “level of education and degree of
culture”); 27 (“Mr. Kurtiev’s style of aggression is cultural;
it is not part of the Western Russian culture.”); 30 (Mr.
Kurtiev “has no knowledge of Russian history, culture or art”);
32 (“[S]ince Mr. Kurtiev is not fluent in Russian it is
unreasonable for him to make an authoritative decision on how
something should be done without consultation.”); 21 (“Mr.
Kurtiev is from Middle Asia where women are considered low
compared to men which may be the reason Mr. Kurtiev behaves the
[sic] way.”).
As an initial matter, Mr. Kurtiev is unable to point to any
evidence other than his own statements to support his allegation
that some Russian Service employees used racial slurs in the
workplace. But his own self-serving assertions do not give rise
to a triable issue of fact. Toomer, 266 F. Supp. 2d at 200. And
whether or not the statements suggest racial animus on the part
of the individuals who made them, Mr. Kurtiev has provided no
evidence that the VOA staff who were involved in and made the
decision to terminate him held similar opinions. That in making
22
its decision, the VOA relied in part on the summaries does not
call into question whether the VOA “honestly believe[d] the
reasons it offers,” nor does the reliance on those summaries
suggest “the employer made an error too obvious to be
unintentional.” Fischbach, 86 F.3d at 1183.
For all of these reasons, Mr. Kurtiev has failed to provide
evidence from which “a reasonable jury could not only disbelieve
the employer's reasons, but conclude that the real reason the
employer took a challenged action was a prohibited one.” Walker,
798 F.3d at 1093.
4. Insufficient Evidence of Pretext Based on Mr.
Kurtiev’s Miscellaneous Arguments 4
Finally, Mr. Kurtiev raises a number of miscellaneous
arguments as to why the Court should conclude that a reasonable
jury could infer a discriminatory purpose in his termination.
Mr. Kurtiev states that “[Ms.] Appel admitted that she used the
phrase herself.” Pl.’s Opp’n, ECF No. 36 at 21. However, Ms.
Appel is not similarly situated to Mr. Kurtiev because, among
other reasons, she was his subordinate. Consequently, this
argument fails. Walker, 798 F.3d at 1092 (discriminatory purpose
could be demonstrated by “citing the [VOA’s] better treatment of
similarly situated employees outside [his] protected group”).
4
This analysis is equally applicable to Mr. Kurtiev’s argument
that he was terminated in retaliation for engaging in protected
activity.
23
Mr. Kurtiev argues that Ms. Appel’s, Ms. Terterian’s, and
others’ translations of the phrase were inconsistent because it
was sometimes translated as including the “f” word, sometimes as
“screw,” and sometimes as “have.” Pl.’s Opp’n, ECF No. 36 at 20-
22. He also contends that “Ms. Terterian decided to make the
words more sinister” when the day after the incident, she stated
that the phrase included the “f” word whereas the day of the
incident her translation of the phrase did not include the “f”
word. Id. at 22. Although the record contains slight deviations
in the translation of the phrase, those deviations do not change
the sexual connotation of the phrase. Accordingly, these slight
deviations do not create a genuine issue of material fact from
which a reasonable jury could conclude that the VOA’s reasons
for terminating Mr. Kurtiev were pretext. Matsushita Elec.
Indus. Co., 475 U.S. at 587.
Mr. Kurtiev argues that the decision-making process was
unusual. Pl.’s Opp’n, ECF No. 36 at 24. He argues that Mr.
Austin decided to terminate his employment on March 19, 2010,
but that “[t]he agency then fabricated a record purportedly
showing that [Dr.] Biberaj decided to terminate Mr. Kurtiev’s
employment and that [Mr.] Lennon upheld that decision.” Id.
The evidence shows that on March 19, 2010, Ms. Grace
informed Ms. Munn via email that “Dan Austin has made the
decision to terminate Mr. Kurtiev’s employment,” Defs.’ Ex. X,
24
ECF No. 32-26; and that in a memo dated March 23, 2010, Dr.
Biberaj recommended Mr. Kurtiev’s termination to Mr. Lennon, and
that recommendation was agreed to by Mr. Lennon, Steve Redisch,
VOA Executive Editor, and Ms. Grace. Defs.’ Ex. C, 2-3. Mr.
Lennon testified that he was the “nominal deciding official” but
that Mr. Austin “became aware of the results of the
investigation and made a preliminary decision to dismiss Mr.
Kurtiev . . . [that] his employment should be terminated.” Pl.’s
Ex. 32, ECF No. 36-13 at 31:3-4, 9-11, 19-20.
However, that Dr. Biberaj, Mr. Kurtiev’s immediate
supervisor, wrote a memorandum dated March 23, 2010 recommending
that Mr. Kurtiev’s employment be terminated, and that Mr.
Austin, the Director of the VOA, decided on March 19, 2010 that
Mr. Kurtiev’s employment should be terminated after learning the
results of the investigation does create a genuine issue of
material fact from which a reasonable jury could conclude that
the VOA’s reasons for terminating Mr. Kurtiev were pretext for
discrimination as Mr. Kurtiev has introduced no evidence linking
this timeline to any discriminatory intent. Matsushita Elec.
Indus. Co., 475 U.S. at 587. Mr. Kurtiev also argues that Ms.
Munn admitted that if Mr. Austin made the termination decision
rather than Mr. Lennon, this would have been against VOA policy.
Pl.’s Opp’n, ECF No. 36 at 24. However, this misstates Ms.
Munn’s testimony. Ms. Munn stated that if the “Decision Notice”—
25
here the April 19, 2010 letter—had been issued before the
“Notice”—here the March 24, 2010 letter—in which the employee is
notified of the opportunity to seek reconsideration of the
“Notice,” this would have been against VOA policy. Pl.’s Ex. 33,
ECF No. 36-24 at 77:15-20.
Finally, Mr. Kurtiev argues that “there are many
inconsistencies concerning the official reason for [his]
Kurtiev’s termination,” Pl.’s Opp’n, ECF No. 36 at 24-25. First,
Mr. Kurtiev argues that Ms. Munn testified that Mr. Kurtiev was
terminated based only on the one phrase he was accused of using,
whereas the Decision Notice states that he was also being
terminated for “repeatedly and frequently ma[king] inappropriate
statements to several members of the Russian Service.” Id. at
24. That Ms. Munn did not recall the additional stated reason
for Mr. Kurtiev’s termination in a deposition taken seven years
after the decision does not create a genuine issue of material
fact from which a reasonable jury could conclude that the VOA’s
reasons for terminating Mr. Kurtiev were pretext. Matsushita
Elec. Indus. Co., 475 U.S. at 587. Second, Mr. Kurtiev argues
that Mr. Lennon stated for the first time in his deposition that
his decision was based on part on Mr. Kurtiev’s managerial
performance. Pl.’s Opp’n, ECF No. 36 at 25. Mr. Lennon testified
that “part of my decision had to be based on an assessment of
his supervisor and managerial skills as evidenced by his
26
performance.” Pl.’s Ex. 32, ECF No. 36-13 at 30:22-31:1-2.
Again, that Mr. Lennon did not recall that Mr. Kurtiev was
terminated based on conduct rather than performance in a
deposition taken seven years after the decision does not create
a genuine issue of material fact from which a reasonable jury
could conclude that the VOA’s reasons for terminating Mr.
Kurtiev were pretext. Matsushita Elec. Indus. Co., 475 U.S. at
587. Furthermore, Mr. Lennon later confirmed in the deposition
that Mr. Kurtiev’s employment was terminated based on the
investigation into the March 2010 incident. Pl.’s Ex. 32, ECF
No. 36-13 at 70:7-13.
For all of these reasons, Mr. Kurtiev has failed to present
evidence from which “a reasonable jury could not only disbelieve
the employer's reasons, but conclude that the real reason the
employer took a challenged action was a prohibited one.” Walker,
798 F.3d at 1093.
Accordingly, since Mr. Kurtiev failed to present evidence
from which a reasonable jury could find that he was terminated
due to his national origin and/or religion, the Defendants'
Motion for Summary Judgment on this claim is GRANTED.
27
B. Mr. Kurtiev Has Failed to Produce Sufficient Evidence
From Which a Reasonable Jury Could Find That the VOA’s
Stated Reason for Terminating Him was Pretext for
Retaliation
To establish a prima facie case for retaliation, Mr.
Kurtiev alleges that: (1) he participated in a protected
activity in January 2010 when he submitted the Badykova Witness
Affidavit, Compl., ECF No. 1 at 10 ¶ 66; (2) he suffered a
materially adverse action when he was terminated in April 2010,
see id. at 25 ¶ 182; and (3) there is a causal link connecting
the two because he was terminated after he questioned his
immediate supervisor about the allegedly false reason he had
been given about the nonrenewal of Ms. Badykova’s contract. See
Pl.’s Opp’n, ECF No. 36 at 3.
As with the discrimination claim, the VOA asserts the same
reason for its termination decision: the results of its
investigation of the incident in his office with Ms. Appel and
Ms. Terterian. Having asserted a legitimate, non-retaliatory
reason for the termination decision, the burden now shifts back
to Mr. Kurtiev to demonstrate that the VOA’s “stated reasons
were pretextual, and the real reasons were prohibited
discrimination or retaliation.” Walker, 798 F.3d at 1092. And
“the central question at summary judgment becomes whether the
employee produced sufficient evidence for a reasonable jury to
find that the employer's asserted nondiscriminatory or
28
nonretaliatory reason was not the actual reason and that the
employer intentionally discriminated or retaliated against the
employee.” Id. (internal quotation marks and citation omitted).
To meet his burden, Mr. Kurtiev argues that: (1) he was
terminated in retaliation for refusing to make false statements
in the Badykova Witness Affidavit and for later questioning the
reason he had been given for the nonrenewal of her contract, see
Pl.’s Opp’n, ECF No. 36 at 11; (2) the two subordinate employees
that made the accusation against him were disgruntled and blamed
him for their shift assignment, see id. at 12-13; and (3) the
VOA’s review of the incident was a “sham investigation.” See id.
at 13.
1. Insufficient Evidence of Retaliation Arising From
the Badykova Witness Affidavit
Mr. Kurtiev argues that he was terminated in retaliation
for: (1) refusing to make false statements in his Witness
Affidavit; and (2) raising questions about the reason he had
been given for the non-renewal of Ms. Badykova’s contract. Pl.’s
Opp’n, ECF No. 36 at 10.
With regard to his refusal to make false statements in his
Witness Affidavit, Mr. Kurtiev testified that Dr. Biberaj and
Ms. Gandji, another VOA employee, “wanted [him] to include
false[] information that [Ms. Badykova] didn't perform well in
her position, and they wanted [him] to include false[]
29
information that she had conduct issues.” Pl.s’ Ex. 6, ECF No.
36-4 at 138:1-5. Mr. Kurtiev’s affidavit stated that “[a]lthough
her performance was not stellar, Ms. Badykova's contract . . .
was not renewed because a decision was made to rely on stringers
in [] Central Asia and the Caspian region.” Defs.’ Ex. A, ECF
No. 32-3 at 5.
Mr. Kurtiev also states that VOA officials “wanted [him] to
include that [he] was the [person] who made the decision,” not
to renew Ms. Badykova’s contract, Pl.s’ Ex. 6, ECF No. 36-4 at
140:15-17; whereas even though he was Ms. Badykova’s supervisor,
he claims that the decision to not renew her contract was made
by Dr. Biberaj and Ms. Gandji, id. at 140:3-5.
With regard to his questioning the real reason for the non-
renewal of Ms. Badykova’s contract, Mr. Kurtiev states that in
February 2010, after he signed the Witness Affidavit on January
15, 2010, he found evidence suggesting that the reason he had
been given for the non-renewal of Ms. Badykova’s contract—lack
of funds—was not true. Id. at 11. Mr. Kurtiev states that he
confronted Dr. Biberaj, who responded with a look of “extreme
interest and concern” and told him not to worry about it. Pl.’s
Ex. 6, ECF No. 36-4 at 149:18. 5 Mr. Kurtiev then states that in
5 The Court notes that Mr. Kurtiev’s deposition testimony does
not support counsel’s characterization that Dr. Biberaj was
“visibly upset.” Pl.’s Opp’n, ECF No. 36 at 11.
30
late February or early March 2010, he found evidence that
strongly suggested that the lack of funds rationale was false
and that after confronting Dr. Biberaj about it in late February
or early March 2010, Dr. Biberaj threatened to terminate him.
Pl.’s Opp’n, ECF No. 36 at 11. In support, Mr. Kurtiev cites his
own deposition testimony where he avers that in response to his
confronting Dr. Biberaj, Dr. Biberaj asked him whether he missed
two former employees, which Mr. Kurtiev took to be a threat that
he “could join them outside the Russia Service.” Pl.’s Ex. 6,
ECF No. 36-4 at 150:13-17. Mr. Kurtiev argues that soon
thereafter, the first steps to terminate his employment were
taken. Pl.’s Opp’n, ECF No. 36 at 11. Mr. Kurtiev argues that
his dismissal “was in close temporal proximity to [his]
protected activity of opposing discrimination by refusing to
make knowingly false statements in his affidavit in the Badykova
Case” and “in closer temporal proximity to his confronting Mr.
Biberaj.” Id.
The VOA argues that Mr. Kurtiev’s retaliation claim fails
for several reasons: 6 (1) “any inference of retaliation is undercut
6 The Court is unpersuaded by defendants’ technical argument that
during his deposition, Mr. Kurtiev was unable to “identify a
single place in his Badykova affidavit where [Dr.] Biberaj or
Gandji suggested he include information that he refused to
include.” Defs.’ Reply, ECF No. 37 at 20. It is clear that Mr.
Kurtiev’s contention is that he was pressured into including the
statement that Ms. Badykova “was not a stellar performer” and to
state that he was the decisionmaker in the Witness Affidavit.
31
by the lack of temporal proximity”; (2) “any reliance on temporal
proximity here is made even weaker by the absence of any other
evidence suggesting a retaliatory motive”; (3) he has not shown a
connection between any alleged impropriety in various official’s
review of his Witness Affidavit and his termination; (4) he
fails to connect his termination to Dr. Biberaj’s alleged threat
to terminate him; and (5) he “cannot demonstrate the requisite
knowledge of the protected activity.” Defs.’ Reply, ECF No. 37 at
20-22.
The question at this juncture is whether Mr. Kurtiev has
“put forward enough evidence to defeat the proffer and support a
finding of retaliation.” Woodruff v. Peters, 482 F.3d 521, 530
(D.C. Cir. 2007). Mr. Kurtiev argues that the temporal
proximity—two months or less between his signing of the Witness
Affidavit, confronting Mr. Biberaj about the reason he had been
given for the non-renewal of Ms. Badykova’s contract, and when
the decision to fire him was made—establish a prima facie case
of retaliation. Pl.’s Opp’n, ECF No. 36 at 12. 7
“The temporal proximity between an employee's protected
activity and [his] employer's adverse action is a common and
often probative form of evidence of retaliation.” Walker, 798
7 Mr. Kurtiev appears to misunderstand his burden at this
juncture. His burden is not to argue that he has stated a prima
facie case; it is to “put forward enough evidence to defeat the
proffer and support a finding of retaliation.” Woodruff, 482
F.3d at 530.
32
F.3d at 1092) (citing Hamilton, 666 F.3d at 1357–59); Taylor v.
Solis, 571 F.3d 1313, 1322 (D.C. Cir. 2009). “Whether evidence
offered to show that an employer's explanation is false itself
suffices to raise an inference of unlawful discrimination or
retaliation is a fact-sensitive inquiry.” Id. (citing Aka v.
Washington Hosp. Center, 156 F.3d 1284, 1294 (D.C. Cir. 1998)
(“[I]t is difficult, if not impossible, to say in any concise or
generic way under what precise circumstances such an inference
will be inappropriate.”). Assuming that two months or less would
be sufficient to support an inference of temporal proximity,
Clark Cnty. Sch. Distr. v. Breeden, 532 U.S. 268, 273 (2001); at
the summary judgment stage, “positive evidence beyond mere
proximity is required to defeat the presumption that the
proffered explanations are genuine.” Woodruff, 482 F.3d at 530.
And “[t]he evidence of record must be such that a reasonable
jury could not only disbelieve the employer's reasons, but
conclude that the real reason the employer took a challenged
action was a prohibited one.” Walker, 798 F.3d at 1093.
Here, a reasonable jury could not disbelieve the VOA’s
reasons and conclude that Mr. Kurtiev’s termination was
retaliatory. Mr. Kurtiev’s contention—that he was retaliated
against because he refused to state in the Witness Affidavit
that Ms. Badykova was a poor worker and had conduct issues, but
stated instead that “she was not a stellar worker” and because
33
he was pressured into stating that he made the decision to
terminate Ms. Badykova—is belied by the fact that the Witness
Affidavit contains the information Mr. Kurtiev alleges he was
pressured to include. Assuming he was in fact pressured to
include this information, Mr. Biberaj and Ms. Gandji achieved
their objective, giving them no reason to retaliate. To the
extent Mr. Kurtiev argues that they retaliated against him two
months later because of their frustration in having had to
pressure him, Mr. Kurtiev offers no evidence other than his
opinion, which is insufficient to overcome the presumption that
the VOA’s reason was legitimate. See Hastie v. Henderson, 121 F.
Supp. 2d 72, 77 (D.D.C. 2000), aff’d, No. 00-5423, 2001 WL
793715 (D.C. Cir. 2001) (“To defeat a motion for summary
judgment, a plaintiff cannot create a factual issue of pretext
with mere allegations or personal speculation, but rather must
point to ‘genuine issues of material fact in the record.’”).
Similarly, Mr. Kurtiev’s interpretation of Mr. Biberaj’s
statement as a threat to terminate him for raising questions
about the reason for the non-renewal of Ms. Badykova’s contract
is insufficient to raise a genuine issue of material fact for a
jury. See id. Mr. Kurtiev’s arguments that it was improper for
Mr. Biberaj and Ms. Gandji to have reviewed his Witness
Affidavit and to have not informed him that Ms. Badykova named
them in her EEO complaint, and that it was improper for LER and
34
General Counsel staff to have reviewed it fail to “put forward
enough evidence to defeat the proffer and support a finding of
retaliation,” Woodruff, 482 F.3d at 530; because he has provided
no evidence that shows a connection between these alleged
improprieties and his termination. Finally, Mr. Kurtiev has
provided no evidence indicating that the persons other than Mr.
Biberaj who were involved in the decision to terminate him—Ms.
Grace, Mr. Lennon, Mr. Redisch, Mr. Austin, and Ms. Elliott—had
any knowledge of Mr. Kurtiev’s involvement in the Badykova
Witness Affidavit.
For all of these reasons, Mr. Kurtiev has failed to provide
evidence from which “a reasonable jury could not only disbelieve
the employer's reasons, but conclude that the real reason the
employer took a challenged action was a prohibited one.” Walker,
798 F.3d at 1093.
2. Insufficient Evidence of Retaliation Based on Ms.
Appel and Ms. Terterian Being Unhappy About Their
Shift Pick
Next, Mr. Kurtiev contends that the two subordinate
employees who made the accusation against him were disgruntled
because of the shifts they received. Mr. Kurtiev cites his own
testimony to assert that the two employees “were very combative
and threatened [him] with trouble if he did not change the
shifts they were assigned to under the shift picks.” Pl.’s
Opp’n, ECF No. 36 at 13. However, the testimony Mr. Kurtiev
35
cites does not support his assertion that they threatened him.
Rather, Mr. Kurtiev testified that Ms. Terterian asked her
questions about the shifts in a “combative way.” Pl.’s Ex. 6,
ECF No. 26-4 at 172-173. Mr. Kurtiev points to the summary of
the interview of Russian Service employee Daria Kutkovaya, who
stated “that people would have personal offense against him and
accuse him of something because of the shift picks.” Pl.’s
Opp’n, ECF No. 36 at 12. However, Ms. Kutkovaya’s personal
opinion does not create a genuine issue of material fact from
which a reasonable jury could conclude that the VOA’s reasons
for terminating Mr. Kurtiev were pretext. See Hastie, 121 F.
Supp. at 72.
Additionally, the VOA considered and rejected Mr. Kurtiev’s
argument about Ms. Appel and Ms. Terterian’s motivations: “I
find your arguments that Ms. Appel and Ms. Terterian have
personal reasons to make false allegations against you are
without merit. You have not shown how these accusations would
benefit either Ms. Appel or Ms. Terterian. In fact, the
complaint did not result in an adjustment to either employee’
[sic] schedule or shift.” Defs.’ Ex. Y, ECF No. 32-27 at 3-4.
Mr. Kurtiev also asserts that the two employees’ stories
about the March 10, 2010 incident “changed over time.” Pl.’s
Opp’n, ECF No. 36 at 13. His support for this assertion is Ms.
Roushanian’s March 11, 2010 email describing the call she
36
received from Ms. Terterian and stating that the phrase included
the word “have,” Ms. Terterian’s March 11, 2010 email to Ms.
Appel in which she translated the phrase as including the “f”
word, and that the investigation showed a split among employees
as to whether Mr. Kurtiev makes offensive statements. Id. Mr.
Kurtiev also asserts that Ms. Appel and Ms. Terterian “testified
differently during their depositions as to what was said and its
translation.” ECF No. 40 at 7 ¶ 39. As the Court explained
supra, although the record contains slight deviations in the
translation of the phrase, those deviations do not change the
sexual connotation of the phrase. Accordingly, these slight
deviations do not create a genuine issue of material fact from
which a reasonable jury could conclude that the VOA’s reasons
for terminating Mr. Kurtiev were pretext. Matsushita Elec.
Indus. Co., 475 U.S. at 587.
For all of these reasons, Mr. Kurtiev has failed to provide
evidence from which “a reasonable jury could not only disbelieve
the employer's reasons, but conclude that the real reason the
employer took a challenged action was a prohibited one.” Walker,
798 F.3d at 1093.
3. Insufficient Evidence of Retaliation Based on the
Investigation
Mr. Kurtiev raises a number of complaints about the
investigation to argue that the investigation of the incident
37
was a “sham.” Pl.’s Ex. 10, ECF No. 36-7. The question at this
juncture is whether Mr. Kurtiev has “presented sufficient
evidence to attack the employer’s proffered explanations for its
actions” by “call[ing] into question whether [Defendants’]
investigation was a reasonably objective assessment of the
circumstances or, instead, an inquiry colored by . . .
discrimination” or retaliation. Mastro v. Potomac Elec. Power
Co., 447 F.3d 843, 853 (D.C. Cir. 2005).
Mr. Kurtiev complains that the decision to terminate his
employment was made before the investigation was complete
because he was notified of the decision before he was given the
opportunity to respond to the complaint against him. Pl.’s
Opp’n, ECF No. 36 at 13. However, the evidence shows that LER
staff met with Mr. Kurtiev on March 11, 2010 to inform him of
the complaint made against him and that he denied that he made
the statement. Defs.’ Ex. S, ECF No. 32-21 at 2. LER staff then
conducted the investigation from March 11, 2010 through March
18, 2010. Defs.’ Ex. K, ECF No. 32-13 at 62:19-20.
Mastro is instructive. In Mastro, the D.C. Circuit reversed
the district court’s grant of summary judgment in favor of the
defendants, “conclud[ing that the plaintiff] raised a genuine
issue of material fact concerning the legitimacy of [the
defendants’] nondiscriminatory reason for termination” based on
the investigation that was conducted into the incident and that
38
lead to the plaintiff’s termination. Mastro, 447 F.3d at 72. The
D.C. Circuit pointed to record evidence suggesting that the
investigation, “which was central to and culminated in [the
plaintiff’s] termination, was not just flawed but inexplicably
unfair” because: (1) the plaintiff himself was not interviewed;
and (2) “careful, systematic assessments of credibility” were
not performed. Id. at 80. Here, by contrast, Mr. Kurtiev was
interviewed on the day after the incident occurred. And Ms. Munn
made credibility determinations based on her “discussions with
Ms. Appel and Ms. Terterian, Ms. Terterian’s emotional state,
[and] the translation of the statement that each member of the
Russian Service translated to being the same.” Defs.’ Ex. K, ECF
No. 32-13 at 73:11-16.
The record shows that Mr. Kurtiev, at his request, met with
Ms. Munn during the afternoon of March 22, 2010, Defs.’ Ex. B,
ECF No. 32-4 at 220:6-7; after Mr. Austin decided on March 19,
2010 that his employment should be terminated, Defs.’ Ex. X, ECF
No. 32-26 at 2. Given that after Mr. Kurtiev was given notice of
his termination in a letter dated March 24, 2010, he was able to
seek reconsideration of that decision and did so with the
assistance of counsel, Defs.’ Ex. Y, ECF No. 32-27; Defs.’ Ex.
CC, ECF No. 32-31; the Court cannot find that the March 22, 2010
meeting between Mr. Kurtiev and Ms. Munn calls into question
39
whether the “investigation was a reasonably objective assessment
of the circumstances . . .” Mastro, 447 F.3d at 853.
Mr. Kurtiev also asserts that Ms. Munn did not request a
description of the incident from Ms. Appel and Ms. Terterian.
Pl.’s Opp’n, ECF No. 36 at 14. However, the record shows that on
March 11, 2010, Ms. Terterian forwarded to Ms. Munn an email
discussion between Ms. Terterian and Ms. Munn describing the
incident. Pl.’s Ex. M at 2. Mr. Kurtiev complains that the
“investigation was not thorough” because Ms. Appel was never
interviewed and Ms. Terterian was interviewed only
telephonically. Pl.’s Opp’n, ECF No. 36 at 16. However, the
record shows that both Ms. Appel and Ms. Terterian were
interviewed in person. Pl.’s Ex. 33, ECF No. 36-14 at 51:14-16;
Defs.’ Ex. S, ECF No. 32-21 at 2. Mr. Kurtiev disputes that Ms.
Munn met with Ms. Terterian in person because Ms. Munn’s notes
of the meeting include Ms. Terterian’s telephone number.
However, as Ms. Munn explained, she wrote Ms. Terterian’s
telephone number on her notes so that she could reach her while
she was on administrative leave. Pl.’s Ex. 33, ECF No. 36-14 at
55:3-7. He also disputes that Ms. Munn met with Ms. Appel in
person because no notes of the meeting with Ms. Appel have been
produced despite Ms. Munn’s statement in her deposition that she
“takes notes for every meeting.” Id. at 54:16-55:7; 53:4.
However, Mr. Kurtiev provides no positive evidence to support
40
his allegations and his arguments are based on an inaccurate
understanding of the record. Accordingly, he fails to “call into
question whether [Defendants’] investigation was a reasonably
objective assessment of the circumstances.” Mastro, 447 F.3d at
853.
Mr. Kurtiev’s expert criticized the investigation for not
investigating Mr. Kurtiev’s defenses, or his allegations about
Ms. Appel and Ms. Terterian’s motivations prior to the March 24,
2010 decision. Pl.’s Opp’n, ECF No. 36 at 14. Along the same
lines, Mr. Kurtiev complains that the VOA did not investigate
whether Ms. Appel and Ms. Terterian conspired to get Mr. Kurtiev
fired. Id. at 17. However, Mr. Kurtiev points to no evidence in
the record indicating that he made Ms. Munn aware of his
defenses or allegations when he met with her and other LER staff
on March 11, 2010. And in making its final decision in response
to Mr. Kurtiev’s request for reconsideration, the VOA did take
into account Mr. Kurtiev’s evidence of alternate translations of
the phrase as well as his allegations about Ms. Appel’s and Ms.
Terterian’s motivations. Specifically, the VOA took into
consideration the alternate translation of the phrase provided
by Mr. Kurtiev, but found the translation of the phrase that has
a sexual connotation to be more credible. Defs.’ Ex. Y, ECF No.
32-27 at 3. And as stated above, the VOA also noted that the
“poor judgment [Mr. Kurtiev] displayed in making this statement
41
and by attempting to provide a false translation to mitigate
[his] misconduct lead me to conclude that [his] removal from
federal service is justified and necessary.” Id. at 3-4. Also as
stated above, the VOA also considered and rejected his argument
about Ms. Appel and Ms. Terterian’s motivations: “I find your
arguments that Ms. Appel and Ms. Terterian have personal reasons
to make false allegations against you are without merit. You
have not shown how these accusations would benefit either Ms.
Appel or Ms. Terterian. In fact, the complaint did not result in
an adjustment to either employee’ [sic] schedule or shift.” Id.
Mr. Kurtiev raises a number of additional miscellaneous
complaints about the investigation based on the report of his
expert. However, none of these complaints call into question
whether the “investigation was a reasonably objective assessment
of the circumstances . . . .” Mastro, 447 F.3d at 853. Mr.
Kurtiev complains that he did not have the opportunity to engage
in “meaningful discussions” until after the termination decision
had been made. Pl.’s Opp’n, ECF No. 36 at 16. However, Mr.
Kurtiev was informed of the complaint and provided an
opportunity to respond on the day the investigation began.
Moreover, he was able to engage in meaningful discussions during
the VOA’s reconsideration of the decision, and did so with the
advice of counsel. And the record indicates that the VOA
considered his arguments carefully.
42
Mr. Kurtiev complains that the VOA did not investigate
whether Ms. Appel and Ms. Terterian themselves used the phrase.
Pl.’s Opp’n, ECF No. 36 at 16-17. However, whether or not they
used the phrase is not relevant to the propriety of Mr. Kurtiev
using the phrase during the meeting with them. Mr. Kurtiev
complains Ms. Munn asked leading questions and that the VOA did
not investigate whether the translation of the phrase was
accurate. Pl.’s Opp’n, ECF No. 36 at 17. He also argues that the
VOA should have found “an individual fluent in Russian who had
no relationship or connection with the complainants or the
accused (and therefore no conflict of interest) and who could
have provided an unbiased translation.” Pl.’s Opp’n, ECF No. 36
at 17. Mr. Kurtiev’s objection to the questions that were posed
during the investigation do not “call into question whether
[Defendants’] investigation was a reasonably objective
assessment of the circumstances.” Mastro, 447 F.3d at 853. And
the evidence shows that VOA obtained sixteen translations by
Russian Service employees, including employees who performed
translations as part of their day-to-day responsibilities,
unanimously translating the phrase as having a sexual
connotation. Furthermore, some of those employees showed support
for Mr. Kurtiev’s leadership. Mr. Kurtiev complains that some of
the Russian Service employees who were interviewed “expressed
distain for Mr. Kurtiev based on his national origin.” However,
43
assuming some Russian Services employees expressed distain, the
employees were unanimous in translating the phrase as having a
sexual connotation. Accordingly, even employees who did not
allegedly express distain for him translated the phrase as
having a sexual connotation.
Mr. Kurtiev complains that the record does not indicate
that Ms. Munn or anyone assisting her evaluated the reliability
and credibility of the persons interviewed. Pl.’s Opp’n, ECF No.
36 at 17. However, Ms. Munn testified that she made credibility
determinations based on her “discussions with Ms. Appel and Ms.
Terterian, Ms. Terterian’s emotional state, [and] the
translation of the statement that each member of the Russian
Service translated to being the same.” Defs.’ Ex. K, ECF No. 32-
13 at 73:11-16.
Finally, Mr. Kurtiev speculates that Ms. Munn and other
high-ranking VOA officials “may” have been biased against Mr.
Kurtiev. Pl.’s Opp’n, ECF No. 16-19. However, such speculation
is insufficient to create a factual issue of pretext. See
Hastie, 121 F. Supp. 2d at 77.
Accordingly, since Mr. Kurtiev failed present evidence from
which a reasonable jury could find that he was terminated in
retaliation for issues surrounding the Badykova Witness
Affidavit, that the allegations against him were fabricated, or
that the investigation was not a “reasonably objective
44
assessment of the circumstances,” Mastro, 447 F.3d at 853, the
Defendants’ motion for summary judgment on this claim is
GRANTED.
C. Mr. Kurtiev is Entitled to a Weak Adverse Inference
Mr. Kurtiev asserts that documents relating to this case—
specifically documents relating to edits made to the Badykova
Witness Affidavit—were not preserved when the hard drive of his
computer was “wiped clean.” Pl.’s Opp’n, ECF No. 36 at 9. Mr.
Kurtiev states that no litigation hold was placed by the Office
of General Counsel nor by the VOA’s EEO office. Id. As a result,
Mr. Kurtiev asks the Court to “conclude that there was
spoliation and that a negative inference is warranted.” Id. at
10.
A party has “an obligation to preserve and also to not
alter documents it knew or reasonably should have known were
relevant to the . . . litigation if it knew the destruction or
alteration of those documents would prejudice the [other
party].” Shepherd v. Am. Broad. Cos., 62 F.3d 1469, 1481 (D.C.
Cir. 1995). “[A] negative inference may be justified where the
defendant has destroyed potentially relevant evidence.” Gerlich
v. Dep’t of Justice, 711 F.3d 161, 265 (D.C. Cir. 2012). The
duty to preserve arises when litigation is reasonably
foreseeable. Id. at 265-66. “Once a court has determined that
future litigation was reasonably foreseeable to the party who
45
destroyed relevant records, the court must then assess . . .
whether the destroyed records were likely relevant to the
contested issue.” Id. at 266.
Here, litigation was reasonably foreseeable since the
record indicates that Mr. Kurtiev was represented by counsel
during his request for reconsideration of the March 24, 2010
Notice of Termination of Appointment. See e.g., Defs.’ Ex. AA,
ECF No. 32-29. Moreover, his counsel’s April 8, 2010 letter to
the VOA raised the possibility of an EEO retaliation claim.
Pl.’s Ex. 12, ECF No. 36-9 at 9-10. Accordingly, the Court must
assess “whether the destroyed records were likely relevant to
the contested issue.” Gerlich, 711 F.3d at 266. “[I]n situations
where ‘the document destruction has made it more difficult for a
party to prove that the documents destroyed were relevant,’ the
‘burden on the party seeking the adverse inference is lower,’
and ‘the trier of fact may draw such an inference based even on
a very slight showing that the documents are relevant.’”
Gerlich, 711 F.3d at 267 (quoting Ritchie v. U.S., 451 F.3d
1019, 1025 (9th Cir. 2006)). Mr. Kurtiev asserts that “[these
documents were highly relevant to the issue of motive, among
other things.” Pl.’s Opp’n, ECF No. 36 at 9. The inference he
requests is that VOA officials, “at a minimum,” Mr. Biberaj and
Ms. Gandji, had a retaliatory motive or a retaliatory intent.
Id. at 10.
46
Mr. Kurtiev’s theory of relevance is unclear. If it is that
the destroyed documents would have shown that the versions of
the affidavit that showed Mr. Biberaj and Ms. Gandji’s edits
would provide evidence that Mr. Biberaj and Ms. Gandji had
reason to retaliate against him, Mr. Kurtiev is entitled to only
a weak inference because as the Court explained above, to the
extent they pressured him to say that Ms. Badykova “was not a
stellar performer” and that Mr. Kurtiev made the decision to
fire her, they achieved their objective and so would have no
reason to retaliate against him. On the other hand, if his
theory is that the different versions of the affidavit would
have shown that it was improper for VOA officials to have played
a role in editing the affidavit, he is entitled to only a weak
inference because he has not provided any evidence linking the
editing process to his termination. Neither of these weak
inferences are strong enough to provide evidence from which “a
reasonable jury could not only disbelieve the employer's
reasons, but conclude that the real reason the employer took a
challenged action was a prohibited one.” Walker, 798 F.3d at
1093.
V. Conclusion
Drawing every justifiable inference in Mr. Kurtiev’s favor,
as the Court must, it finds no basis upon which a reasonable
factfinder could conclude that the VOA had discriminatory intent
47
based on his national origin and/or religion, or was retaliating
against Mr. Kurtiev for taking part in a protected activity when
it terminated him. Accordingly, the Defendants’ Motion for
Summary Judgment is GRANTED. An appropriate Order accompanies
this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
June 1, 2020
48