Piroty v. Broadcasting Board of Governors

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SALAH PIROTY, )
Plaintiff, j
v. j Civil Case No. 09-221 (RJL)
CHAIRMAN, BROADCASTING j
BOARD OF GOVERNORS, )
Defendant. j F I l_ E D
q§, SEP 3 0 2011
MEMoRANDIJM oPiNloN c(§'§r'i‘§ F'Sihmst~"'°t»& B”"""P*°Y
(seprember?,§ 2011) [Dia. #21] °r 6 D'S"'“ °’ °°'""‘”‘@
Plaintiff Salah Piroty ("Piroty") has sued the Chairman of the Broadcasting Board
of Governors, in his official capacity, alleging unlawful discrimination on the bases of
gender, national origin, and age and a violation of the Administrative Procedure Act
("APA") for the hiring of two non-U.S. citizens over him. Defendant has moved for
summary judgment on the discrimination claims ("Count I") and for judgment on the
pleadings on the APA claim ("Count II"). There being no genuine issue of material fact,
defendant is entitled to judgment as a matter of law as to Count I. As to Count II,
defendant’s motion must also be GRANTED, because plaintiff has utterly failed to state
a claim upon which relief can be granted.
BACKGROUND
The Broadcasting Board of Governors ("BBG" or "defendant") is the federal
agency responsible for the U.S. government’s civilian international broadcasting As
such, it supervises a network of individual broadcasting services, including the Voice of
America ("VOA")_and therefore its sub-element, the Kurdish Broadcasting Service
("Kurdish Service"). 22 U.S.C. § 1464a; Pl.’s Opp’n to Def.’s Mot. Summ. J. ("Pl.’s
Opp’n") 3 [Dkt. #22]. Congress has mandated the VOA to provide "accurate, objective,
and comprehensive" news that "present[s] the policies of the United States clearly and
effectively." 22 U.S.C. § 6202(0); see also Grosdz`dz`er v. Chairman, Broad. Ba’. of
Governors, 560 F.3d 495, 496 (D.C. Cir. 2009) ("The VOA transmits new, educational,
and cultural programming around the world in more than 40 different languages to an
estimated global audience of more than 100 million people."). Within the VOA, the
Kurdish Service broadcasts to audiences in Iraq, Iran, Turkey, and Syria in the two
primary Kurdish dialects, Sorani and Kurmanji. Pl.’s Opp’n 3; Def’s Mem. Supp. Summ.
J ("Def.’s Mem.") 3-5 [Dkt. #21].
Piroty, a 40 year-old naturalized citizen of the United States and an Iranian-Kurd
by origin, has worked as a contractor in the Kurdish Service since 2002. Compl. 11 3, 7
[Dkt. #l]; Pl.’s Stmt. Mat. Facts ("Pl.’s Stmt. Facts") jj 3 [Dkt. #22-1]. In this position,
Piroty has served as an emcee and news anchor, conducted interviews, and produced
special reports. See Pl. EX. l, Jawhary Dep. 222.
On or about September 6, 2007, the Kurdish Service advertised openings for two,
full-time international Broadcaster positions. Compl. jj 8; Def.’s Mem. 5. Plaintiff
applied and was interviewed by a three-person panel consisting of the current chief of the
Kurdish Service; the managing editor of the VOA’s Near East and Central Asia Division,
which encompasses the Kurdish Service; and an international broadcaster from the Uzbek
Service. Compl. il 9; Pl.’s Stmt. Facts jj 13. The chief of the Kurdish Service ("the
Service chief"), however, was responsible for the final hiring decision, with approval by
the Near East and Central Asia Division’s director. Pl. Ex. 10, Dahiyat Dep. 79-80; Pl.’s
Opp’n 3. The panel interviewed fourteen candidates, who had submitted written
applications detailing their "knowledge, skills, and abilities" to serve in this position.
Def. Ex. l, Vacancy Announc.; Def. Ex. 16, Candidate List.
During the interviews, the panel asked all the candidates the same questions and
took notes on their responses. Pl. Ex. 1, Jawhary Dep. l72; see also Def. Ex. 15,
Question List; Def. Ex. l6, Candidate List. All three interviewers recalled that Piroty had
difficulty answering interview questions and, at times, seemed to misunderstand the
questions. Pl. Ex. l, Jawhary Dep. 266; Pl. Ex. 3, Suerdem Dep. 285; Pl. Ex. l6,
Imamova Dep. 63. As such, when the panel finally ranked the applicants, Piroty came
out sixth out of the fourteen candidates. Pl. Ex. 1, Jawhary Dep. l92; Pl. Ex. 3, Suerdem
Dep. 147-40; Pl. Ex. l6, Imamova Dep. 50; Def. Ex. 17, Suerdem Notes 313. Not
surprisingly, the top two ranked candidates, Mr. Tahir and Ms. Pasha,l were ultimately
selected by the Service chief for the two broadcaster positions. Def. Ex. 13, Justification
Memorandum ("Justification Memo") 55. However, because the selectees are both non-
U.S. citizens, the Service chief prepared a justification memo explaining why they were
l Tahir is a male of lraqi origin, who was approximately twenty-five at the time of
the selection, Pl. Ex. 25, Tahir Dep. 8-9, ll; Pasha, a female also of lraqi origin, is two
years older than Piroty. Def.’s Mem. 27; see also Pl.’s Opp’n 16.
more qualified than the various U.S. citizen applicants, like Piroty. Pl.’s Opp’n 14;
Def.’s Mem. ll; see also generally Def. Ex. 13, Justification Memo. 2
After learning he was not selected, Piroty initiated Equal Employment
Opportunity ("EE()") counseling and then filed an EEO complaint. Compl. jj 5. Those
actions having been unsuccessful, Piroty initiated this case in February 2009. Ia’.
ANALYSIS
I. Standard of Review
A. Summary Judgment
Summary judgment is appropriate where "the movant shows there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(a). While a court must draw all justifiable inferences in favor of the
non-moving party, the non-moving party "may not rest upon the mere allegations or
denials of his pleading, but must set forth specific facts showing that there is a genuine
issue for trial." Ana’erson v. Liberly Lobby, Inc., 477 U.S. 242, 256 (1986) (citing Fed.
R. Civ. P. 56(e)). "Thus, if the evidence presented by the opposing party is ‘merely
colorable’ or ‘not significantly probative,’ summary judgment may be granted.” Burke
v. Goulcl, 286 F.3d 513, 519 (D.C. Cir. 2002) (quoting Anderson, 477 U.S. at 249-50).
2 ln the justification memo, the Service chief lauded the selected candidates’
experience in writing, editing, and reporting; on-air abilities; command of English and
Kurdish, as well as other languages; knowledge of the primary target area; and positive
aspects of their interviews. Def. Ex. 13, Justification Memo 56-57. In contrast, the
Service chief assessed that Piroty’s on-air broadcasting skills and original writing ability
were not as strong and that he was "lacking in his knowledge about lraqi Kurdistan, the
primary target area of VOA Kurdish broadcasts." Icl. at 57.
B. Judgment on the Pleadings
A motion for judgment on the pleadings should be granted "if it is clear that no
relief could be granted under any set of facts that could be proved consistent with the
allegations." Longwooa' Vill. Rest., Lta’. v. Ashcroft, 157 F.Supp.2d 6l, 66 (D.D.C. 200l)
(citing Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)). The standard for assessing
such a motion is the "same as that applied to a motion to dismiss for failure to state a
claim upon which relief can be granted . . . . " Covaa’ Commc ’ns Co. v. Revonet, Inc., 250
F.R.D. l4, 18 (D.D.C. 2008) (internal citations omitted).
II. Defendant ls Entitled T0 Summary Judgment As T0 Count I.
Piroty claims discrimination under Title VII of the Civil Rights Act of 1964
("Title VII"), 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act
("ADEA"), 29 U.S.C. § 633a. Title VII establishes two elements for an employment
discrimination claim: "(i) the plaintiff suffered an adverse employment action (ii)
because of the employee’s sex, or national origin." Braa’y v, Uyj‘ice of Sergeant at
Arms, 520 F.3d 490, 493 (D.C. Cir. 2008). If the employer asserts a legitimate, non-
discriminatory reason for the adverse action, however, the Court need only determine at
the summary judgment stage whether "the employee produced sufficient evidence for a
reasonable jury to find that the employer’s asserted non-discriminatory reason was not
the actual reason and that the employer intentionally discriminated against the employee
on the basis of race, color, religion, sex, or national origin[.]" Ia’. at 494. The same
approach applies to age discrimination claims under the ADEA. See Baloch v.
Kempthorne, 550 F.3d ll9l, 1196 (D.C. Cir. 2008) (applying Braa’y framework to
ADEA claim).
Here, the BBG has provided a legitimate, nondiscriminatory reason for not
selecting Piroty: the selected candidates had both superior interview performances and
superior credentials to Piroty’s. Def.’s Mem. 2.3 In short, BBG proffers that Piroty was
not selected because "he simply was not the best candidate." Ia’. Given this explanation,
the burden shifts to Piroty to provide sufficient evidence that the BBG’s stated reason is
pretextual and that the BBG intentionally discriminated against him. See Bracly, 520 F.3d
at 494-95. To that end, he argues, first, that the Service chief, the approving official, and
the other interview panelists all "lied" about the interview process and the candidates’
credentials, Pl.’s Opp’n l6-37, and, second, that he was a superior candidate, ia’. at 37-4l.
Piroty also alleges direct evidence of gender, national origin, and age discrimination. ld.
at 12-16.4 For the following reasons, I disagree with his assessment and conclude that he
has utterly failed to meet his burden.
3 Curiously, Piroty contends that the defendant’s proffered, nondiscriminatory
reasons should be confined to the Service chief’ s justification memo. Pl.’s Opp’n 20-2 l.
That memo, however, was prepared to justify the hiring of non-U.S. citizens over U.S.
citizens. Def. Ex. l3, Justification Memo 54. Thus, there is no reason to exclude
defendant’s proffered reasons from consideration.
4 Piroty also contends that the BBG failed to support its motion under Local Rule
7(h), and has thus conceded his arguments, because its statement of material facts does
not "isolate the factors by which the candidates were judged and the qualifications that
the Defendant alleges Mr. Piroty" lacked. Pl’s Opp’n ll. It is within the court’s
discretion to make such a determination, Burke, 286 F.3d at 5 l 8, and I reject plaintiffs
argument here, cf Def.’s Mem. 8-11, 24-27 (providing detailed explanation of selection
factors and supporting testimony).
Piroty offers a laundry list of topics about which the panel allegedly lied but fails
to demonstrate that the BBG’s proffered reasons for not hiring him are pretextual. He
argues, in sum, that the interview panel lied about: the selection factors, Pl.’s Opp’n l6-
l9; the candidates’ interview performances, z'a’. at 19-26, 35-37; and Piroty’s credentials,
z`d. at 26-35. But these allegations are based only on plaintiffs speculation, conjecture,
and opinion. Plaintiff, unfortunately, fails to offer any evidence of actual, material
misrepresentations and instead relies upon blanket allegations without any supporting
evidence. See, e.g., Pl.’s Opp’n l6-l7 (claiming Service officials lied about primary
target area). 5 Similarly, Piroty relies on nothing more than his own opinions to question
the interview process’s credibility. Ia'. at 23-24 (claiming that panel did not ask
comparable "follow-up questions" when "Piroty mentioned interesting facts" and
"ignored Mr. Piroty’s impressive linguistic abilities").(` Such subjective beliefs, of
5 Piroty argues that the Kurdish Service officials all lied that "Iraqi Kurdistan was
the primary target area," Pl.’s Opp’n 3-4, l6-l7, but the defendant has noted that while
the Service’s primary target audience is lraqi Kurdistan, there is a secondary emphasis on
Kurdish populations in Iran, Turkey, and Syria. Def.’s Mem. 4-5. Piroty offers no
evidence that lraq was not in fact the primary target area. See Pl. Ex. l, Jawhary Dep.
l4l-42; Pl. Ex. 3, Suerdem Dep. 60-61; Pl. Ex. l6, Imamova Dep. 120; Def.’s Reply 6;
cf Pl.’s Opp’n l7. Piroty’s argument that news from any of Iraq, Iran, Turkey, and Syria
"could be the most important news topics for the Service" only restates the obvious: news
from these countries could be interesting to lraqi Kurds, and the Service broadcasts to an
area larger than its primary target area. See Pl. Opp’n l7. Even less persuasive is
Piroty’s argument that the Service’s requirement to select native speakers of both Kurdish
dialects is a "significant misrepresentation." Ia’. Piroty fails to explain how this detracts
from the defendant’s stated reason that he was not the most qualified candidate.
6 Piroty does point out some discrepancies among the panelists’ testimony. See,
e.g., Pl.’s Opp’n 2l-22 (pointing out that the other panelists stated that the Service chief
shared her knowledge of the candidates and that the Service chief stated that she did not
course, are insufficient to create a genuine issue of material fact. See Pyne v. Distrz`ct of
Columbz'a, 468 F. Supp. 2d l4, 2l (D.D.C. 2006) ("Plaintiff s assessment that he was the
most qualified for the job does not establish the defendant’s explanations are not its true
motives."). And, it does plaintiff little good that his allegations of lies about his
credentials are either: based on his own subjective conclusions, see, e.g., Pl.’s Opp’n 26-
32 (providing subjective assessments of plaintiffs broadcast journalism experience);
unsupported, compare Pl.’s Opp’n 26 with Pl.’s Ex. l6, Imamova Dep. 80
(mischaracterizing panelist’s testimony regarding her discussions with Service chief); or
immaterial, see, e.g., Pl.’s Opp’n 29 (using opinions of employees that were not part of
the hiring process to quibble over plaintiffs credentials). Such speculation is not
evidence.
Similarly, Piroty’s argument that he was, in fact, a superior candidate also fails.
See Pl.’s Opp’n 37- 41. Indeed, he offers only the testimony of individuals not involved
in the selection process, his subjective assessments, and certain credentials that were not
presented to the panel. Pl.’s Opp’n 30-33, 37-41. 7 But, the panelists themselves
reasonably considered that Piroty’s interview performance was inadequate, and their
share this information). But, whether the Service chief shared some information about
the candidates’ credentials is neither a material fact nor one that shows discrimination.
7 Piroty relies on his own subjective assertions and the testimony of the former
Service chief and two other Kurdish Service international broadcasters. Pl.’s Opp’n 4, 6,
28, 29, 31, 37-43. Although these individuals praised Piroty’s skills and, in some
instances, claimed that he was superior to the selectees, none of them participated in the
hiring decision; and so, their testimony is not probative in assessing the BBG’s hiring
decision and Piroty’s candidacy. Even so, the former Service chief testified that he
recommended only Ms. Pasha to the current Service chief. Pl. Ex. 4, Sheikhmous Dep.
12.
contemporaneous notes reflect the same. See Pl. Ex. l, Jawhary Dep. 176-78, 266; Pl.
Ex. 3, Suerdem Dep. 125-26, l29, 285; Pl. Ex. l6, Imamova Dep. 52, 63; Pl. Exs. 17, 18,
l9, Panelists’ Notes. l\/Iore importantly, Piroty, by his own admission, had some
difficulty in the interview and failed to demonstrate to the interview panel that he met
their requirements, such as adequate knowledge of the target area. Pl. Ex. 8, Piroty Dep.
134-36, 138-39. Thus, in essence, he asks this Court to do that which is legally beyond
its authority: to reconstitute the panel’s evaluation criteria. See Pl.’s Opp’n 16-18; see
also Barbour v. Browner, 181 F.3d 1342, 1346 (D.C. Cir. l999) ("Title VII, it bears
repeating, does not authorize a federal court to become a super-personnel
department. ...") (internal citations and quotations omitted).
Simply put, plaintiff has failed to produce sufficient direct evidence of
discrimination on the basis of gender, age, or national origin. Brady, 520 F.3d at 494-95.
Indeed, plaintiffs reliance on two stray comments pertaining to BBG’s preference for a
gender balance on the air is completely unavailing. Specifically, Piroty points to an EEO
counselor’s notes that indicate that the Near East and Central Asia Division’s director
believed a male/female balance was a consideration for the Kurdish Service. Pl.’s Opp’n
12; Pl.’s Ex. 35, Counselor’s Notes at 1248. Second, Piroty relies on the Service chiefs
clarification that although the Kurdish Service does not seek to balance male and female
broadcasters, it does, if possil)le, try to maintain such a balance on the air. Pl.’s Opp’n
l3; Pl. Ex. l, Jawhary Dep. 139-40. Such comments about structuring radio air-time and
the Kurdish Service, however, are not related to the agency’s hiring process. See also
Sewell v. Chao, 532 F. Supp. 2d 126, 139, n.8 (D.D.C. 2008) ("Evidence of discrimination
does not include stray remarks in the workplace, particularly those made by nondecision-
makers or statements by decisionmakers unrelated to the decisional process itself.")
(internal quotations and citations omitted), ajj"’al sub no)n. Sewell v. Hugler, No. 08-5079,
2009 WL 585660, at *l (D.C. Cir. Feb. 29, 2009). To the contrary, the panelists
specifically testified that gender did not play a role in the hiring process. Pl. Ex. l,
Jawhary Dep. 139-40; Pl. Ex. 3, Suerdem Dep. l59. Indeed, one of the selected
candidates, Tahir, like plaintiff is a male. In short, plaintiff has provided no actual
evidence to support his gender discrimination claim.
Piroty next alleges the BBG discriminated against him on the basis of national
origin. Not surprisingly, he once again offers insufficient evidence to substantiate this
allegation. For example, he claims a reference in the justification memo to his iranian
national origin, when combined with an assertion that the Service chief did not fully
credit his prior news reporting on Iran and a question during his interview about Kurdish
language schooling, somehow constitute evidence that the panel was trying to "weed out"
non-lraqi candidates. Pl.’s Opp’n at l4-l5. None of these, however, either separately or
combined, support a reasonable determination of discrimination. Stray comments
relative to plaintiff s national origin, without more, are not evidence of discrimination.
This Court need not, and will not, rehash his qualifications based on plaintiffs subjective
beliefs. See Tolson v. James, 315 F. Supp. 2d 110, 116 (D.D.C. 2004). In short, Piroty
provides no support for his claim that certain questions were introduced to weed out
specific candidates. To the contrary, it seems reasonable that the selection panel would
consider plaintiffs language skills, including schooling in the Kurdish dialects, for a
10
broadcasting position that requires translation Such questions do not constitute or imply
discrimination.
Finally, Piroty rounds out his discrimination triptych by alleging age
discrimination but once again offers no evidence that constitutes a material issue of fact
for a jury. In particular, Piroty merely offers the testimony of the former Service chief,
who claims that age "was a factor in the selection that occurred in the Service while he
was the service chief." See Pl.’s Opp’n 16; Pl. Ex. 4, Sheikmous Dep. 55-57. Piroty
also asserts that the defendant "dissembled" in its response to certain discovery requests
by claiming to not be aware that Piroty was over the age of 40 or that Tahir was under 40.
Pl.’s Opp’n 16. But, neither of these contentions evidence discrimination because: (l) the
former chief was not employed by defendant when the broadcasting positions were filled,
Def.’s Reply Supp. Mot. Summ. J. [Dkt. #27] 9, and, (2) defendant’s discovery responses
are not contradicted by any evidence indicating that the defendant lied. Finally, and most
importantly, Pasha, the other selectee, is actually two years older than Piroty. Thus, the
evidence allegedly supporting plaintiffs discrimination claim is wholly insufficient to
support a reasonable finding of discrimination for plaintiffs claim to survive summary
judgment. See Braa’y, 520 F.3d at 494-95.
Thus, plaintiff has failed to provide any affirmative evidence demonstrating that
there is a material dispute of fact for a jury. Accordingly, defendant’s Motion for
Summary Judgment will be GRANTED.
ll
III. Defendant ls Entitled T0 Judgment On The Pleadings As T0 Count II.
BBG requests judgment on the pleadings on Piroty’s APA claim. Def.’s Mem. 2.
Our Circuit Court has consistently held that the APA is not the appropriate statutory
vehicle to bring a 22 U.S.C. § 1474 claim that challenges the hiring of non-U.S. citizens
over U.S. citizens: "[F]ederal employees may not bring employment and personnel suits
of this kind under the APA, but instead must pursue such claims through the elaborate
administrative and judicial review system set up by the Civil Service Reform Act of
1978." Nyunt v. Chairman, Broaal. Ba’. of Governors, 589 F.3d 445, 447 (D.C. Cir.
2009); see also Grosa’z`a'z`er, 560 F.3d at 496 (same). Thus, Piroty’s challenge to the
BBG’s hiring decision must be brought under the Civil Service Reform Act, and, as such,
defendant’s Motion for Judgment on the Pleadings must be, and is, GRANTED.S
CONCLUSION
For the foregoing reasons, defendant’s Motion for Summary Judgment as to Count
1 and Motion for Judgment on the Pleadings as to Count 11 [Dkt. #21]is GRANTED. An
order consistent with this decision accompanies this Memorandum Opinion.
/
l , ~
RICHARD L ON
United States 1strict Judge
8 Plaintiff has also conceded this. Pl’s Opp’n 45 n.26.
12