UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

TAHER ACHAGZAI, et al. , Plaintiffs ,

v. BROADCASTING BOARD OF GOVERNORS, Defendant

. Civil Action No. 14-768 (RDM)

MEMORANDUM OPINION This matter is before the Court on Defendant’s motion for summa ry judgment. Dkt. 67. Five broadcasters at the Pasht o Language Service, a division of Voice of America (“VOA”), have made numerous claims alleging workplace discrimination on the basis of age in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”), and on the basis of national origin in violation of Title VII of the Civil Rights Act of 196 4 (“Title VII”). The Court previously dismissed or granted s ummary judgment on the majority of those claims, in addition to denying a motion by two plaintiffs for a preliminary injunct ion. See Dkt. 24; Dkt. 47; Dkt. 52. In its March 18, 2016 Memorandum Op inion and Order, however, th e Court held that four of the claims—discrimination and retal iation, under both Title VII and the ADEA—made by Plaintiff Naseem S. Stanazai survived Def endant’s motion to dismiss, and that it was prem ature to grant summary judgment on those claims without discovery. Dkt. 52 at 33. Having completed discovery, Defe ndant Broadcasting Board of Gov ernors (“the Board”)—the federal agency tha t administers the VOA—again moves for summary judgment. Dkt. 67. The Board argues that the two employment actions iden tified in the Court’s March 18,2 2016 Opinion as potentially giving ris e to claims for discrimin ation or retaliation were not, in fact, “adverse employment acti ons” as required to prove a claimof discrimination under Title VII and the ADEA, nor were the ac tions “materially adverse” as required to prove a claim of retaliation under those statutes. In the alternative, the Boar d argues that Plaintiff has failed to identify any evidence of discrim inatory or retaliatory motive. For the reasons explained below, the Court concludes that neith er of the actions at issue constitutes an “adverse employme nt action” or “materially adver se action” for purposes of Title VII and the ADEA. Defendant’s m otion for summary judgment will therefore be GRANTED

. I. BACKGROUND Because the Court has fully set forth the facts of this case in its previous opinions, Dkt. 24; Dkt. 47; Dkt. 52, it relays in d etail here only recent deve lopments and those facts directly relevant to the remaining claim s. During the times relevant to the present motion, Plaintiff Naseem S. Stanazai was a broadc aster at the Pashto Service of the VOA. Dkt. 25 at 3 (Am. Compl. ¶ 7). He is a naturalize d United States citizen of Afgh an national origin whose native languages are Pashto and Dari. Id. (Am. Compl. ¶ 6). At the time of the conduct at issue, he was fifty-nine years old and had worked at VOA for twelve years. Id. (Am. Compl. ¶ 8). Defendant Broadcasting Board of Governors is an independent federal agenc y that oversees all nonmilitary, international broadcasting sponsored by the federal g overnment, including VOA. Id. at 4 (Am. Compl. ¶ 11). Stanazai alleges that he suffered numerou s acts of discrimination and hostility after the VOA implemented a “new format” in an effort to modernize its offerings. Id. at 5–7 (Am. Compl. ¶¶ 13–18); Dkt. 68-1 at 1–2. The complaint alleges that the se abuses began in 2006 but grew worse when Mohammed Ibrahim Nasar became the M anaging Editor of the Pashto Service in 2010. Dkt. 25 a t 7 (Am. Compl. ¶ 15). Stana zai asserts that, after he began3 voicing his displeasure with the various changes, Nasar retalia ted and discriminat ed against him by manipulating his broadcasting s chedule to giv e additional re sponsibilities to less-qualified colleagues rather than him and t o remove him from more desirabl e assignments. Id . at 9–12 (Am. Compl. ¶¶ 23–25, 28–29, 31–32, 34–35). After his supervisors failed t o address his concerns, Stanazai sought administrative recourse through Equal Employment Opportunity (“EEO”) counselin g with the Board’s Office of Civil Rights on Marc h 22, 2013. Dkt. 30-2 at 101. A month later, he filed an administrative discrimination complaint accompanied by an attachment detailing his allegations of discrimination. See id. at 106. Defendant never issue d a final decision on Plaintiff’ s complaint because Stanazai requested an Equal Employment Opportunity Comm ission (“EEOC”) hearing before the Board could render a decision. Id. at 3 (McDay Decl. ¶ 11) . The EEOC, in turn, dismissed its own proceeding whe n Plaintiff brought this action

. Id. (McDay Decl. ¶ 12). The Court issued its first opinion in this case on June 12, 20 15. See Achagzai v. Broad. Bd. of Governors , 109 F. Supp. 3d 67 (D.D.C. 2015). The Court dismissed severa l tort claims without prejudice for failure to e xhaust administrative remedie s, struck the remainder of the original complaint for failure to comply with Federal Rules of Civil Procedure 8 and 12(f), and granted Plaintiffs leave to file an amended complaint. Id . at 72. Plaintiffs did so, see Dkt. 25, and the Board again moved to dism iss or, in the alternative, fo r summary judgment, Dkt. 30. Just days after the Board’s mo tion was fully briefed, two of th e plaintiffs filed a motion for a preliminary injunction, asking the Court to halt further schedu ling changes at the Pashto Service.
See Dkt. 41. After that motion was fu lly briefed, the Court held o ral argument on all of the pending motions. At oral argument, the Court informed the part ies that it would deny the motion for a preliminary injunction, and it subsequently issued a Memo randum Opinion and Order4 explaining that the two plainti ffs seeking preliminary relief h ad not satisfied any of the four factors necessary to obtai n a preliminary injunction. See Achagzai v. Broad. Bd. of Governors , No. 14-cv-768, 2016 WL 471274 (D.D.C. Feb. 8, 2016). The Court also provided Plaintiffs with two weeks to file a supplemental m emorandum “identif[ying] for each of the five plaintiffs discrete acts of discrimina tion that occurred within 45 days of when they first sought counseling from an EEO counselor.” Minute Order (Feb. 5, 2016). Plaintif fs filed that memorandum on February 19, 2016, see Dkt. 50, and the Board responded on March 1, 2016, see Dkt. 51. Shortly thereafter, on March 18, 201 6, the Court granted in pa rt and denied in part Defendant’s motion to dismiss, or, i n the alternative, for summ ary judgment. See Achagzai v. Broad. Bd. of Governors , 170 F. Supp. 3d 164 (D.D.C. 2016). The C ourt held that four of the plaintiffs failed to exhaust the ir administrative remedies and, accordingly, granted Defendant’s motion as to their claims. Id. at 175–79. As to Stanazai, however, the Court held that he had timely exhausted his administrativ e remedies with respect to tw o incidents and that those events at least plausibly gave rise to c laims for disparate treatment and retaliation under both Title VII and the ADEA. Id. at 180–85. Concluding that the recor d available at the time di d not conclusively resolve whether those incidents constituted “adver se employment actions” as required by the statutes, the Court denied the Board’s motion i n part, id. at 185, and ordered the parties to conduct discovery f ollowed by a second round of summ ary judgment briefing, Minute Order (Apr. 15, 2016). Plaintiffs sought reconsideration of th e Court’s March 18, 2016 decision, which the Court denied on May 9, 2016. See Dkt. 57; Dkt. 59. The Court’s previous opinions have thus substantially narrowed the issues in controversy. Only two alleged events arguabl y support Plaintiff’s remaining claims. First, on February 5, 2013, Nasar—Stanazai’s direct superv isor—asked Stanazai to tran slate three minutes of Pashto5 audio into English. Dkt. 30-2 at 117. Stanazai told Nasar tha t he could not complete the assignment in the time he was initially given. 1 Id. Nasar then emailed Masood Farivar—the head of the Pashto service at the time and Nasar’s direct supervisor, Dkt. 67-13 at 2–3—asserting that he had “asked Stanazai to tr anslate” the three minutes of audio, but that “Stanazai ha[d] refused to do it,” despite “hav ing two and [a] half hours befor e he complete[s] his shift,” Dkt. 67- 11 at 3. Nasar copied Stanazai on the email, who then replied that he had not in fact refused to do the translation, but rather requested more time because of t he amount of other work he had that afternoon. Id . Nasar, in turn, responded by detai ling the work he believed that Stanazai had to complete that day and th e time he thought necessary to do so , stating that any difficulty in managing the tasks could “come [] only when one does not take hi s job serious[ly].” Id. at 2–3. Stanazai replied again, further explaining his position regardi ng the time the assignment required and his competing obligations. Id. at 2. He added, “[r]easoning about time and prioritizing it[] does not mean refusing an assignment.” Id. At Farivar’s request, the three met the following day to discuss the issue, at wh ich point Nasar allegedly stated —to Stanazai’s “surprise”—that he had not intended to send the ema il in question, an d Farivar urg ed collegiality. Dkt. 30-2 at 130. The second relevant event o ccurred on February 25, 2013. Thatday, Nasar issued a new schedule for the broadcasters . Dkt. 67-3 at 8. The Pashto Ser vice broadcasted seven days a week, with each broadcast “day” consisting of four one-hour blo cks. Dkt. 67-7 at 2–3. For each block, broadcasters could be a ssigned to one of several roles. Id. At the time of the February 25 schedule, the only role relevant to the claims still in controv ersy was called “shift editor.” Dkt.

1 The parties dispute whether St anazai said he needed more time , or simply that he could not complete the task. See Dkt. 67-11 at 1–3. Because the Court concludes that Nasar’s em ail is not an adverse employment action re gardless of the event that preci pitated it, the origin of the dispute is not material.6 68-2 at 3. Stanazai attests that s hift editors were responsibl e for “editing and managing the team on . . . daily assignments.” Id. Elsewhere he describes the po sition as “supervisory,” Dkt. 25 a t 26, and states that “the shift editor’s job [was] to assign [br oadcasters] any job he deemed necessary to be done,” Dkt. 30-2 a t 118. The Board describes t he shift editor’s responsibilities slightly differently, stating tha t the “role was to conduct a s econd-level reviewand edit of all copy before it was read on the a ir and to serve as a point of c ontact for the [M]anaging [E]ditor to move the programming f orward.” Dkt. 67-1 at 9; see also id. at 23 (stating that the role “consisted of editing copy, coor dinating the program, and deliv ering reports to the master of ceremonies”). In a deposition, however, Stanazai substantially agreed with th e Board. He stated that, even while serving as shift ed itor, he had not formally held a supervisory position, that the “[s]hift editor’s job is to ba sically copy edit the news and ot her feature stories,” and that the responsibilities of the shift e ditor were generally not any dif ferent from copy editing. Dkt. 67-4 at 28. Indeed, “[t]he shift edit or, usually, and the copy edit or were almost the same,” with the possible exception that, at tim es, the shift editor would “assi gn other jobs to others.” Id. at 28– 29. Both sides acknowledge that “s hift editor” was not a forma l position into which people were hired, but rather a set of respons ibilities assigned to individ uals whose formal position was “broadcaster,” a non-supervisory role. Id. at 27; Dkt. 67-1 at 23–24; Dkt. 67-5 at 2–4. Stanazai’s current claims cente r on the distribution of shift e ditor assignments. For at least ten months prior to the F ebruary 25 schedule, Stanazai wa s assigned to be the shift editor for a one-hour block on Frida y evenings and a one-hour block onSaturday evenings. Dkt. 67-8 at 2–3; Dkt. 67-3 at 25. One of Stanazai’s fellow broadcasters , Abid Noor, was assigned to be a shift editor for six one-hour bl ocks spread across Sundays, Mon days, and Tuesdays. Dkt. 67-8 at7 2–3. After the implementation of the February 25 schedule, how ever, Stanazai was assigned to be shift editor for two one- hour blocks on Saturdays. Dkt. 67- 7 at 2. Noor, in c ontrast, was assigned to be a shift editor for ten one-hour blocks, with two each day, Sundays through Thursdays. Id. Almost immediately after the F ebruary 25 schedule was issued, the staff voiced their displeasure at the distribution of assignments. Stanazai’s con cern was that he “was reduced to only one day” as shift editor each week, while Noor was given f ive days with shift editor assignments. Dkt. 67-3 at 25. Stanazai also disputed Noor’s qualifications for the assignment, suggesting that Noor lacked the pr oper language skills to copy edit stories. Id. As a result of this and other staff discontent, Nasar met with the broadcasters on March 5, 2013, to receive input on a new schedule. Dkt. 67-2 at 2; Dkt. 68-1 at 2–3. Following this discussion, a new schedule was issued on April 10, 2013. Dkt. 67-3 a t 25; Dkt. 67-9. The new schedule eliminated the “shift editor” assignment ba sed on staff feedback, and instead split t he duties of that role between a “copy editor” and a “coordinato r.” Dkt. 67-2 at 2; Dkt. 67-6 a t 17. The April 10 schedule assigned Stanazai the copy editor role for eight one-hour block s and made him the backup copy editor for two one-hour blocks . Dkt. 67-9 at 2–3. Noor was sc heduled for six one-hour blocks as coordinator, but no shifts as copy editor. Id . A further schedule issued on July 8, 2013, left Stanazai’s schedule and re sponsibilities unchanged. 2 Dkt. 70-1 at 2–3.

2 Defendant characterizes Sta nazai’s schedule as of July 2013 a s being “unchanged from the April 2013 schedule,” Dkt. 70 at3, and Stanazai does not dispu te this contention. It appears, however, that Stanazai may in fact have received additionalcopy editing responsibilities of the sort he had been seeking, becomi ng the primary copy editor on S aturdays rather than the backup. Compare Dkt. 70-1 at 2 (listing “Stan azai/Hasib” on the July 2013 Sche dule), with Dkt. 67-9 at 2 (listing “Ashiq/Stanazai” on t he April 2013 schedule). Regardl ess, Stanazai’s editing responsibilities clearly did not decrease when the April 2013 s chedule was revised in July 2013.8 II. LEGAL STANDARD On a motion for summary judgment under Rule 56, the Court cons iders the full record before it, but it may not resolve any bona fide factual dispute s. The Court, accordingly, may grant summary judgment only when the moving party “shows that t here is no genuine dispute as to any material fact and [that] the movant is entitled to judgm ent as a matter of law.” Fed. R. Civ. P. 56(a). Where, as here, t he defendant has moved for summary judgment, it “bears the initial responsibility ” of “identifying those portions” of the record that “demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). A fact is “material” if it could aff ect the outcome of the litigation, see Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986), and a dispute is “genuine” if the evi dence is such that a reasonable jury could return a verdic t for the nonmoving party, see Scott v. Harris , 550 U.S. 372, 380 (2007). The Court must view the evi dence in the light most fav orable to the nonmoving party and must draw all reasonable inf erences in that party’s favor. Talavera v. Shah , 638 F.3d 303, 308 (D.C. Cir. 2011). If the moving party makes this initial showing, the burden shif ts to the nonmoving party to show that sufficient evidence exists for a rea sonable jury t o find in its favor with respect to the “element[s] essential to that party’s case, and on which that p arty will bear the burden of proof at trial.” Id. (quoting Holcomb v. Powell , 433 F.3d 889, 895 (D.C. Cir. 2006)). The nonmoving party’s opposition, accordingly, must consist of more than unsu pported allegations or denials and must be supported by affidavits, declarations, or other compete nt evidence setting forth specific facts showing that there exists a genuine issue for trial. See Fed. R. Civ. P. 56(c); Celotex , 477 U.S. at 324. That is, once the moving party carries its initia l burden on summary judgment, the nonmoving party must provide evide nce that would permit a reaso nable jury to find in its favor.9 See Laningham v. U.S. Navy , 813 F.2d 1236, 1241 (D.C. Cir. 1987). If the nonmoving party ’s evidence is “not significantly p robative,” the Court should gra nt summary judgment. Liberty Lobby , 477 U.S. at 249–50.
III. DISCUSSION The Board argues that Stanazai’s remaining claims fail because neither the February 25 schedule nor the February 5 email constitutes an adverse action sufficient to support a retaliation or discrimination claim under Titl e VII or the ADEA. Dkt. 67-1 at 7. Stanazai’s opposition resists the Court’s prior narro wing of the issues and fails to address much of the substance of Defendant’s motion, stating instea d that to focus on these two actions in isolation is “misleading” because Stanazai has in fact offered proof of the Board having “systematically taken adverse action against [him] since 2006 that . . . continued up to Dece mber 13, 2016 and [is still] . . . [on]going.” Dkt. 68-1 at 7. Stan azai in fact admits that at l east “[t]he schedule of February 25, 2013 is not an indication of . . . ret aliation or [less] opportunity given to Mr. Stanazai.” 3 Id. at 2. As the Court previously held, how ever, Stanazai’s administrativ e remedies were exhausted only with respect to the “two incidents that allege dly occurred within 45 days of his Ma rch 22, 2013, EEO counseling.” Achagzai , 170 F. Supp. 3d at 180. The Court, accordingly, may consider only these two events, and, as explaine d below, it concludes that ne ither was sufficiently adverse to support a claim for retaliation o r discrimination under Title V II or the ADEA. A. The February 5, 2013 Email Under the burden-shifting framework of McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973), Stanazai bears the in itial burden of establishing aprima facie discrimination or

3 Stanazai’s brief a sserts that “[t]he schedule of February 25, 2013 is not an indication of less retaliation or opportunity given t o Mr. Stanazai.” Dkt. 68-1 a t 2. The Court, however, understands Stanazai to mean “notan indication of retaliation or less opportunity.”10 retaliation case under both the ADEA and Title VII, id. at 802. Discrimination claims brought under these statutes require a p laintiff to show that “(1) [he] is a member of a protected class; (2) [he] suffered an adverse employme nt action; and (3) the unfavor able action gives rise to an inference of discrimination.” Czekalski v. Peters , 475 F.3d 360, 364 (D.C. Cir. 2007). An adverse employment action must be “a significant change in empl oyment status, such as hiring, firing, failing to promote, reassi gnment with significantly dif ferent responsibili ties, or a decision causing significant change in benefits.” Douglas v. Donovan , 559 F.3d 549, 552 (D.C. Cir. 2009) (citation omitted). “Purely subjective injuries, s uch as dissatisfaction with a rea ssignment, or public humiliation or loss of reputation,” are not sufficien t. Forkkio v. Powell, 306 F.3d 1127, 1130 (D.C. Cir. 2002) (citation omitted) . That means that “not everything that makes an employee unhappy is an actionable adverse action.” Douglas , 559 F.3d at 552 (citation omitted). An adverse employment action re quires proof of more: the employ er’s action must “affect[] the terms, conditions, or privileges of employment or future employ ment opportunities.” Ortiz-Diaz v. U.S. Dep’t of Hous. & Urban Dev., Office of Inspector Gen. , 867 F.3d 70, 73 (D.C. Cir. 2017). To prove a retaliation claim, in c ontrast, a plaintiff must sho w only that he or she suffered “(i) a materially adverse acti on (ii) because he or she had bro ught or threatened to bring a discrimination claim.” Baloch v. Kempthorne , 550 F.3d 1191, 1198 (D.C. Cir. 2008). A “materially adverse action” is one that “would have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’” Id. (quoting Burlington N. & Santa Fe Ry. Co. v.
White , 548 U.S. 53, 68 (2006)). The “materially adverse” standard t hus “encompass[es] a broader sweep of actions than those in a pure discrimination cl aim.” Id. at 1198 n.4. A retaliation claim is “ ‘not limited to discriminatory actions th at affect the terms and conditions of employment’ and may extend to harm s that are not workplace-rela ted or employment-related so11 long as ‘a reasonable employee would have found the challenged action materially adverse.’” Id. (quoting Burlington N. , 548 U.S. at 64, 68). The Court first considers whethe r the February 5 email was an “adverse employment action” in the context of Stan azai’s discrimination claim. As the Court previously observed, “[s]tanding alone, it is unlikel y that the purportedly ‘false a nd accusatory e-mail[],’ Dkt. 30-2 at 104, constitute[s] an adverse employment action” because, “[a]s the D.C. Circuit has repeatedly observed, ‘a thick body of precedent . . . refutes the notion that formal criticism or poor performance evaluations are ne cessarily adverse actions.’” Achagzai , 170 F. Supp. 3d at 181 (quoting Russell v. Principi , 257 F.3d 815, 818 (D.C. Cir. 2001)) (int ernal quotation marks omitted) (alteration in original) . The Court denied summary ju dgment as to Stanazai’s claim on this point, however, because of the possibility that a more con crete consequence might have resulted from the email. Id. Specifically, the Court hel d that the Board had “not submitte d any evidence refuting Stanazai’s allegation that he was demoted fro m a supervisory position and that less qualified employees were give n supervisory authority at hi s expense.” Id. at 182. Having now considered the additional evidence presented by the parties regarding what occurred, the Court concludes that the February 5 email did not have any tangible consequences and thus did not constitute an adve rse employment action. Afte r Nasar emailed Stanazai and Farivar criticizing Stanazai’s p erformance, the three met and d iscussed the issue. Dkt. 67-19 at 26–27. Stanazai described the meeting as resulting in Nasar re tracting his earlier accusation: To my surprise Mr. Nasar said he did not intend to send that em ail to us. Mr. Farivar at the end of the meeting suggested having workable relations a t least. I said I simply want him to treat me with fairness, according to rights granted by the laws of the United States and VOA rules. The meeting was over. Id. at 26. More importantly, Stanaza i offers no evidence that anysubsequent employment action, such as the denial of a promo tion, was premised in whole or in part, directly or indirectly, on the12 email. To the contrary, Stanaza i does not even reference the e mail in his opposition to the Board’s motion for summary j udgment beyond asserting that it is a disputed fact whether “Mr. Stanazai was targeted on Feb ruary 5th, 2013 when he was accused of not completing an assignment.” Dkt. 68-3 at 1. This assertion, even if it were supported by evidence, is nonresponsive to the question of whe ther there were consequence s to the email. Being “targeted” is the sort of “[p]u rely subjective injur[y], such a s . . . public humiliation or loss of reputation” that is legally ins ufficient to constitute an adver se employment action. See Forkkio , 306 F.3d at 1130. Accordingly, although given ample opportunity to take discovery , Stanazai has failed to identify any evidence that would permit a reas onable jury to find that the e mail “result[ed] in a tangible consequence, such as a demotion, loss of a bonus, or m issed opportunity for advancement.” Achagzai , 170 F. Supp. 3d at 181. A reprimand such as this one that do es not lead to any concrete, negative outcome is not an adverse employ ment action. See Russell , 257 F.3d at 818; accord Brooks v. Clinton , 841 F. Supp. 2d 287, 298–99 (D.D.C. 2012) (holding that “harassing emails that challenge d and criticized [an employee’s ] work product” were “supervisory acts [that] cannot c onstitute an adverse employmen t action because” the plaintiff could not show “any materially adv erse consequences to the term s, conditions, or privileges of employment” (internal quotation marks omitted)). For the same reasons, Stanazai’s retaliation claim fails to th e extent it is premised on the February 5 email. Although reta liation claims may be based on “a broader sweep of actions than . . . pure discrimination claim[s],” Baloch , 550 F.3d at 1198 n.4, that does not r elieve the plaintiff of his obligation to identify an action that would “dissuade[] a reasonable worker from making or supporting a charge of discrimination.” Burlington N. , 548 U.S. at 68 (citation omitted). An13 informal criticism that resu lted in no consequences beyond prec ipitating a meeting—at which
both participants were adm onished to “hav[e] workable relations”—wo uld not prevent a reasonable worker from bringing o r substantiating a discriminat ion claim. See Durant v. D.C.
Gov’t , 875 F.3d 685, 698 (D.C. Cir. 2017) (holdi ng that a letter inf orming an employee of “specific deficiencies regar ding [his] conduct, ” including fail ure to complete a task in a timely manner, was not materially adverse); id. (“A reprimand letter sett ing forth allegations of deficient work performance is no t a materially adverse action a bsent a showing t hat the letter would have dissuaded a reasonabl e employee from engaging in pro tected activity.” ). This is not a case in which an employee was subjected to actions that would lead a reasonable employee to reconsider whether to engage i n protected activity in the futur e. Cf. Baloch , 550 F.3d at 1199 (observing that a reprimand lette r held not to be a materially adverse action “contained no abusive language, but rather job- related constructive criticism , which ‘can prompt an employee to improve her performance’” (quoting Whittaker v. N. Ill. Univ. , 424 F.3d 640, 648 (7th Cir. 2005))). Nasar’s email, while critical, fails to rise to the l evel of material adversity necessary for Stanazai’s retaliation claim to survive. B. The February 25, 2013 Schedule Although the February 5 email, sta nding alone, is not an adver se action for purposes of a retaliation or discrimination cla im, the Court’s previous decis ion recognized that the email might still be relevant to a claim that other behavior by the Board was disc riminatory or retaliatory. Achagzai , 170 F. Supp. 3d at 181–82. Specifica lly, the Court identifie d the February 25 schedule as potentially adverse given Stan azai’s “allegation that he was demoted from a supervisory position and that less qualified e mployees were given superviso ry authority at his expense.” Id. at 182. The Court, accordingly, denied summary judgment on Stanazai’s discrimination and14 retaliation claims “insofar as they allege that the Board discr iminated or retaliated against Stanazai by either demoting him or promoting other VOA employee s in his stead based on considerations of a ge or nationality,” id. at 185, because “[t]he Board ha[d] not submitted any evidence refuting Stanazai’s allegation,” id. at 182. The parties have now submitted additional evidence of what the responsibil ities of Stanazai and his cowor kers were both before and after the schedule was issued. In lig ht of this evidence, the Court now concludes that the February 25 schedule was not sufficiently a dverse to support a retaliation or discrimination claim. Stanazai argues that in the F ebruary 25 schedule he was assign ed to work as a shift editor on only Saturdays, while Noor—who Stanazai states was less qual ified—was assigned five days of shift editing duties each w eek. Dkt. 68-1 at 11. Stanazai originally framed this new schedule as a demotion because it reduced the number of days each week h e was scheduled as a shift editor from two to one. See Achagzai , 170 F. Supp. 3d at 182 (“Stanazai alleges both that he was demoted from a supervisory posit ion and that, when the new sche dule issued, less qualified employees were given supervisory authority.”). He has at vario us points in his opposition to the present motion continued to frame his claim this way, see Dkt. 68-1 at 11, and he did so in his deposition as well, Dkt. 67-4 a t 20 (“I was reduced to one day . . . .”). As the copies of the February 25 schedule and the sched ule that preceded it make cle ar, however, Stanazai’s shift editor responsibilities were not actually reduced. While he pr eviously had been scheduled as shift editor for one one-hour bl ock on Friday and one one-hour block on Saturday, Dkt. 67-8 at 2–3, the February 25 schedule still scheduled Stanazai for two one-hour blocks, Dkt. 67-7 at 2–3. The February 25 schedule, accordingly, cannot represent either a materially adverse action or an adverse employment action if only Stanazai’s duties are conside red, because nothing about those duties changed in any material resp ect. While there can be “no doubt that the removal of [an15 employee’s] supervisory responsib ilities constitute[s] an adver se employment action,” Burke v.
Gould , 286 F.3d 513, 522 (D.C. Cir. 2002); see also Youssef v. FBI, 687 F.3d 397, 402 (D.C. Cir. 2012) (“‘[A]n extraordinary red uction in responsib ilities’ cons titut[es] materially adverse action under Title VII.” (quoting Holcomb , 433 F.3d at 902)), here no such r esponsibilities were removed. Stanazai concedes as much. Dkt. 68-1 at 2 (“The sche dule of February 25, 2013 is not an indication of . . . retaliation or [less] opportunity given to Mr. Stanazai . . . .”). Stanazai, however, has now offe red an alternative theory for w hy the February 25 schedule change constituted both amaterially adverse action an d an adverse employment action. He maintains the schedule is “a good example of the shows and o pportunities that were given to less qualified and junior employees,” id. , and that the relative imbalance of shift editor responsibilities between him and Abid Noor created by the Febru ary 25 schedule was “adverse to Mr. Stanaz[a]i because it impact [ed] his chances to become a [M ]anaging [E]ditor,” id. at 11. In particular, Stanazai argues tha t Noor was assigned to work as t he shift editor five days a week, for a total of ten hours, while he was assigned to work as the shift editor only once a week, for a total of two hours. See Dkt. 68-1 at 2, 11; Dkt. 67-7 at 2–3. This disparity, accordin g to Stanazai, substantially undermin ed his prospects for promotion to Managing Editor—a GS 13 position—because the “VOA[] [h as] many times . . . promoted peo ple [to GS 13] based on [their] experience and educati on.” Dkt. 68-2 at 3. Stanazai a lso maintains, more generally, that the disparity in allocation of s hift editor responsibilities be tween him and Noor adversely affected his opportunities to ear n overtime and to obtain train ing. Id. The evidence before the Court fo recloses Stanazai’s argument t hat the relative imbalance of responsibilities between him a nd Noor—or any other broadcast er—on the February 25 schedule materially affected hi s chances of becoming Managing E ditor. He states that he “tried16 to apply for the position of Man aging Editor at least 3 times.” Id. Two of those applications were in 2006 and 2008, Dkt. 33-3 at 12, and therefore could not have been affected by the February 25 schedule, which w as not announced and implemented until 2013, Dkt. 68-2 at 3. The only application that could ha ve been affected came in Dece mber 2016. Id. at 3. Even setting aside the other problems with Stanazai’s theory, discus sed in greater detail below, Stanazai’s own description of the person hired to fill the Mana ging Editor role rebuts his argument. Contrary to his assert ion that shift editor responsi bilities were a v ital component of becoming Managing Editor, the pers on chosen for the role was no t one of the shift editors during the period for which records have been produced—nor does she ap pear to have otherwise had editing responsibilities. See Dkt. 67-7 at 2–3; Dkt. 67-8 at 2–3; Dkt. 67-9 at 2–3. The Dece mber 2016 hire was “an on-air talent,” w ho Stanazai suggests was “no t qualified” in part because of her lack of prior editing responsibilities. Dkt. 68-2 at 4. 4 Stanazai has thus offered no support for the inference that he was not promoted to Managing Editor b ecause the February 25 schedule failed to provide him with the oppor tunity to gain the type of experience that would have made the difference in his applicat ion. Without some evidence that he was denied the December 2016 promotion because he lacked sufficient experience as a shift ed itor, no reasonable jury could find that the February 25 schedule cons tituted the first step in a c hain of events leading to a materially adverse action or an adverse employment action. See Wiley v. Glassman , 511 F.3d 151, 161 (D.C. Cir. 2007) (per curiam) ( upholding grant of summary judgm ent on a retaliation claim when the plaintiff “failed to estab lish that a reduction in airtime responsibilities constituted a materially adverse action” because she “offered nothing . . . establishing that the reducti on in her airtime

4 Stanazai refers to the person hi red as “Shaiesta Lamai Sadat, ” while the schedules refer to a “Shaista.” Compare Dkt. 68-2 at 4, with Dkt. 67-7 at 2. Based on Stana zai’s descriptions of the individual in questi on, these appear to be r eferences to the same person.17 production—from 17 minutes to 13 minutes—could affect her compe nsation, grade, or opportunity for future advancement”). Stanazai further alleges that the relative imbalance in shift e ditor work negatively affected his prospects, more generally, to “be promoted, get ov ertime, have opportunities, training etc.” Dkt. 68-2 at 3. H e offers no support for this vague assertion, however, and instead merely relies on conclusory statements in his own declaration. 5 In response, the Board argues that any changes to the schedules of Noor or Stanazai effected by the February 25 schedule did not result in the objectively tan gible harm required for a disc rimination claim or the material harm required for a retaliation c laim. For several reasons, th e Court agrees. First, as discussed above, the schedule did not reduce Stanazai ’s previously established responsibilities. Ins tead, his claim rests on dissatisfaction with the assignment of additional duties to Noor, whose capabil ities Stanazai questioned. Althou gh Stanazai previously stressed that he did not care who the ass ignments went to, so long as it was someone other than Noor, he now seems to suggest that those duties should have been given t o him. Compare Dkt. 67-4 at 30–31 (“Q: [W]as it your position that [Noor] should have been removed from shift editor and you should have been assigned to th e shift editor? A: I—I didn ’t say I should be assigned. . . .

5 The Court notes, as it did in i ts earlier opinion, that Plain tiff has attached hundreds of pages of records to his filings in this case, while continually failing to follow the Court’s instructions that the relevant facts be identified. See Achagzai , 170 F. Supp. 3d at 178. In his opposition to the present motion, for example, Pla intiff has failed to produce a list of material facts in dispute pursuant to Local Rule 7(h)(1) that cites to the record, instea d offering a list of twenty-three questions and statements without support. “Alth ough it is poss ible that these extensive materials might identify additional [relev ant facts] not discussed in Pla intiff[’s] brief, it is not the Court’s role to mine the record in an effort to identify potentially he lpful evidence not identified by the parties.” Id. (citing Bombard v. Fort Wayne Newspapers , 92 F.3d 560, 562 (7th Cir. 1996) (“It is not our function to scour the rec ord in search of evidence to d efeat a motion for summary judgment; we rely on the nonmovi ng party to identify with reaso nable particularity the evidence upon which he relies.”)).18 They could assign Roshan. They c ould assign Hasib. They could assign Achagzai.”), and id. at 31 (“My objection is . . . unqua lified people . . . .”), with Dkt. 68-2 at 3–4. This formulation of Stanazai’s claim also fails because he has offered no evidence of a connection between his ability to “be promoted, get ove rtime, have opportunities, trai ning etc.” and Noor’s hours. Notably, Stanazai has not established that Noor’s hours would h ave otherwise been assigned to Stanazai or that any connection existed between the number of h ours Noor worked as shift editor each week and any material aspect of Stanazai’s employment. He , accordingly, has not presented sufficient evidence for a reasonable jury to conclude that the relative distribution of hours (which did not diminish Stan azai’s previously assigned re sponsibilities) would “have dissuaded a reasonable worker f rom making or supporting a charg e of discrimination,” Burlington N. , 548 U.S. at 68 (internal quotation marks omitted), or altered the terms of his employment, see Wiley , 511 F.3d at 161. Second, although Stanazai specifi cally asserts that his opportu nity to earn overtime was affected by the February 25 sche dule, he again offers no eviden ce that his compensation or opportunity to secure additional pay actually varied as a resul t of the new assignments. The Board, in contrast, provides evide nce that the broadcaster posi tion (with its corresponding pay grade) presumed rotation among the se less formal roles within t he studio without providing for any change in wage. See Dkt. 67-5. Taken together, no reas onable jury could conclude o n the evidence presented that Stanazai’s compensation was in fact dep endent on the amount of work he did as a shift editor. Without such a connection between th e schedule and his pay, this theory as to why the February 25 schedule constitutes an adverse emplo yment action or a materially adverse action also fails. See Taylor v. Small , 350 F.3d 1286, 1296 (D.C. Cir. 2003) (“Because [the plaintiff] did not present any evidence upon which one cou ld reasonably find she suffered an19 adverse employment action, the di strict court properly granted summary judgment in favor of her employer . . . .”). Third, even if the February 25 sch edule might in theory have ha d some effect on Stanazai’s chances for promotion, it was in place for such a sh ort period of time that as a practical matter there is no basi s for a reasonable jury to fin d that it did in fact result in any such harm. Beginning on April 10, 2013, the VOA eliminated the “shi ft editor” assignment based on staff feedback, and instead creat ed two new assignments: “copy editor” and “coordinator.” Dkt. 67-2 at 2; Dkt. 67-6 at 17. The c opy editor role, however, was similar to that of the shift editor. Dkt. 67-4 at 28–29. The April 10 sche dule assigned Stanazai th e copy editor role for eight onehour blocks and made him the backup copy editor for two one-hour blocks—substantially more than any other employee. Dkt. 67-9 at 2–3. Noor was scheduled for six one-hour blocks as coordinator, but no shifts as copy editor. Id. A schedule issued on July 8, 2013, if anything further increased Stanazai’s responsibilities as a copy editor. Dkt. 70-1 at 2. Employer actions regarding assignments or duties that are temporary in nature an d not accompanied by economic consequences are rarely cognizab ly adverse, whether considered in the context of a discrimination or a retaliation claim. See Ng v. Lahood , 952 F. Supp. 2d 85, 95 (D.D.C. 2013) (holding that “a limited reducti on in work responsibilities” ov er “a limited period of time . . . does not qualify as an adverse employment action” for purposes of a discrimination or retaliation claim); Peyus v. Lahood , 919 F. Supp. 2d 93, 101–02 (D.D.C. 2013) (same); Brown v. Georgetown Univ. Hosp. Medstar Health , 828 F. Supp. 2d 1, 9 (D.D.C. 2011) (approximately two-week suspension with pay not a n adverse employment action); see also Kangethe v. District of Columbia , 206 F. Supp. 3d 661, 670 (D.D.C. 2016) (“[G]eneralized and sp eculative assertions of benefits that may accrue fro m a temporary post are insuffici ent.”); cf. Forkkio , 306 F.3d at20 1131–32 (removal of noneconomic bene fits previously provided ontemporary basis are not adverse employment action). S imilar to the plaintiff in Kangethe v. District of Columbia , Stanazai has at most suggested that for a few weeks “he was den ied an opportunity to carry greater supervisory re sponsibilities[] [and] gain even more exp erience” that might “have opened other avenues of advancement.” Kangethe , 206 F. Supp. 3d at 670. “These benefits are too intangible and speculative” to be cognizably adverse. Id. Underlying all of these infirmities is Stanazai’s failure to co me forward with material evidence beyond his own, uncorrobora ted declarations that the F ebruary 25 schedule had any material consequences. See Dkt. 67-19; Dkt. 68-2. All he offers by way of additional supp ort is an affidavit from Nasar’s predec essor as Managing Editor, whichstates that Beth Mendelson, the direct supervisor of the Pashto S ervice’s Managing Editor, “wou ld push [the former Managing Editor] on [a] regular basis to ge t rid of the senior and older staff members and replace them [with] much younger people.” D kt. 68-2 at 17–18. The affiant also states that in 2008 he recommended that Stanazai receive a live news assignment, only to be overruled by Mendelson, who then assigned a younger broadcaster. Id. This affidavit, however, is not germane to whether the February 25 schedule constituted a cognizably adver se action for at least two

reasons. First, the affidavit is da ted November 3, 2012, and references events occurring prior to Nasar’s hiring in 2010; it does not a ddress the relevant time p eriod in 2013. Id. Second, and more importantly, it says nothi ng about the key question before the Court—whether the February 25 schedule was sufficiently advers e to give rise to a retaliat ion or discrimination claim. At most, it describes an earlier adverse employment action that is not presently before the Court. By contrast, the Board has offere d evidence that the February 2 5 schedule had no material effect21 on Stanazai’s role at the Pashto Service; t hat the distributionof job responsibilities was conducted in a manner consistent with both the broadcasters’ jo b descriptions and p ast practice; and that Stanazai’s frustration with certain assignments was pr omptly addressed in a revised schedule, which gave him substant ially expanded editorial respo nsibilities. See Dkt. 67-5 (position description f or Stanazai’s job); Dkt. 67-6 (Nasar Dep .); Dkt. 67-14 (Nasar Aff.); Dkt. 67-16 (Mendelson Aff.); Dkt. 67-7 ( February 25 schedule); Dkt. 67-8 (schedule preceding February 25 schedule); Dkt. 67-9 ( schedule succeeding February 25 schedule). To the extent this evidence does not wholly rebut Stanazai’s claim about the effec t of the February 25 schedule, moreover, the D.C. Circuit has stressed that “the burden on a d efendant moving for summary judgment may be discharged without factual disproof of the plai ntiff’s case; the defendant need only identify the ways in whic h the plaintiff has failed to com e forward with sufficient evidence to support a reasonable jury t o find in [his] favor on one or m ore essential elements of [his] claim.” Grimes v. District of Columbia , 794 F.3d 83, 93 (D.C. Cir. 2015). Stanazai’s conclusory averments about the effect on his career resulting from the sev eral weeks his office operated under the February 25 schedule are insufficient for a reasonabl e jury to reach a verdict in his favor. To be sure, “under certain circu mstances a plaintiff’s sworn de claration can create a genuine issue of material fact and thereby render summary judgm ent inappropriate.” Ortiz-Diaz , 867 F.3d at 76. But this case differs materially from those ca ses in which a plaintiff’s own declaration was deemed suffici ent to avoid summary judgment. T he plaintiff in Ortiz-Diaz , for example, unlike Stanazai, offere d “objective, non-conclusory st atements of fact” in his declaration that explained in deta il how a transfer away from abiased supervisor would improve his career prospects. Id. The defendant in that case, mor eover, did not dispute that, “as a general22 matter,” transfers of the type in question would “help[] one’s prospects for advancement.” Id. at 76. Here, in contrast, Stanazai fails to offer any non-conclus ory explanation for how Noor’s relatively more extensive shift- editor experience over a period of several weeks cost Stanazai a promotion to Managing Editor thr ee years later or otherwise mat erially affected his career. This absence of evidence is fatal t o both Stanazai’s claim that the schedule was an adverse employment action and his argum ent that it would have “dissuade d a reasonable worker from making or supporting a charge of discrimination.” Wiley , 511 F.3d at 161 (quoting Burlington
N. , 548 U.S. at 68). Taken together, the Court conclude s that—in light of the eviden ce offered by both parties—Stanazai’s declarations are insufficient to create a ge nuine dispute of material fact regarding whether the February 25 schedule was sufficiently adv erse to support a discrimination or retaliation claim under the ADEA or Title VII.
III. CONCLUSION For the reasons discussed above, t he Board’s motion for summar y judgment will be
GRANTED

. A separate order will issue.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: April 20, 2018