U.S. court rules a contract employee can bring claims of discrimination against Broadcasting Board of Governors
BBG Watch Commentary
In yet another defeat for the Broadcasting Board of Governors (BBG) General Counsel (GC) Office, the federal District Court for the District of Columbia ruled that Radio Sawa’s purchase order vendors (or POVs) could be considered “employees” and thus bring claims of discrimination under Title VII and the Rehabilitation Act. Radio Sawa is part of the BBG and the case is being handled by the BBG’s GC Office.
The ruling by United States District Judge James E. Boasberg was included in the recent decision in an employment discrimination case against the BBG relating to Radio Sawa brought by Nasser Almutairi, a well experienced but disabled journalist who had worked previously with the BBC and Al Jazeera. He also founded and managed a number of newspapers in his native Yemen.
Nasser Almutairi applied to work as a broadcaster at Radio Sawa in 2003 and 2004, but was rejected each time based on what the court has described as a “cascade of shifting and false justifications.” The recent decision states that Mr. Almutairi has provided sufficient evidence of pretext to allow most of the issues to proceed to trial.
As reported earlier by the BBG employee union, AFGE Local 1812, the agency’s General Counsel Office has been engaged for years in trying to restrict employees rights, losing cases, and wasting taxpayers’ money by refusing to settle.
“In the past 10 years, Agency managers, far from reforming, have pursued the same pattern of futile legal maneuvering and delays in cases brought against the Agency. For example, the case of the employees of the former VOA Arabic Service who were forced to sue In U.S. District court when they were illegally passed over for employment at Radio Sawa in favor of less qualified foreign aliens hired by the new BBG entities called the Middle East Broadcasting Network that replaced the VOA Arabic Service. Their lawsuit was settled for over $600,000 not including legal fees. The union office has a copy of that court decision if you are interested.
And now, it’s the same old, same old stalling tactics with another case where the Agency is facing millions of dollars in liability in the case of the U.S. citizens bypassed for promotions or employment, in violation of the Smith-Mundt Act which provides for priority hiring for U.S. citizens. But the Executive Staff has let it be known that it plans to drag the case all the way to the Supreme Court if need be just as they did with the Hartman case. Agency officials won’t have to pay the bill if they lose. The U.S. taxpayers, which include you and me, pick up the tab. They have let it be known that no matter what employees, a federal arbitrator, and the FLRA think Agency officials know best. At the same time, broadcasting employees are put in the position of touting the rule of law in the USA while the broadcasting managers continue to flout the law and legal decisions not in their favor every day of the week.
While they pursue the legal maneuvers mentioned above, down in Miami, at the Office of Cuba Broadcasting, another case languishes on the vine as the Agency chooses to ignore yet another Arbitrator’s decision and that of the Federal Labor Relations Authority (FLRA). The FLRA rejected all of the Broadcasting Board of Governors’ exceptions to Arbitrator Suzanne R. Butler’s decision in the Office of Cuba Broadcasting 2009 RIF (reduction-in-force) case involving illegal firings of OCB broadcasters. But the Agency Executive Staff has apparently told agency lawyers to continue to appeal that supposedly binding decision. The Director of the Office of Cuba Broadcasting, along with the rest of the Agency Executives, refuse to honor the two judicial decisions which overwhelmingly supported the RIFed employees and to re-hire and compensate them for the unjustifiable lay-offs and hardship.”
Paul Kollmer-Dorsey has been the BBG’s Deputy General Counsel and Acting General Counsel since June 2009. The agency is now advertising to fill the General Counsel position. Kollmer-Dorsey reports to the International broadcasting Bureau (IBB) Director Richard Lobo. According to sources, BBG Board members blame IBB’s senior management for low employee morale at the agency.
The POV issue in the Nasser Almutairi claim against the agency is significant since it appears to be the first case in which the court ruled the POVs at the Broadcasting Board of Governors constituted “employees” for purposes of these discrimination laws. There have been countless complaints of the unfair treatment at the BBG regarding POVs versus “staff employees”–many of POVs undertake the exact same duties as staff employees.
One further distinction that the BBG tried to draw in this case was that POVs could not bring a discrimination case because they were “independent contractors” and not “employees”. (Title VII only permits “employees” to file suit.) The court rejected that argument, and found that the POVs were “employees”, largely based on Daniel Nassif’s deposition testimony regarding the amount of control that the BBG exerted over its POVs.
The ruling is not necessarily precedential–all POV cases are unique, and the court will decide whether a POV is a “contractor” or “employee” based on the specific circumstances of each case.
At least at the administrative level, however, some discrimination suits have been tossed out solely on the grounds that they were filed by POVs. In the future, POVs at the BBG who believe that they have suffered discrimination may be able to point to this case as further evidence that they are not “per se” barred from filing suit based on their status.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
INTERNATIONAL BROADCASTING BUREAU, et al.,
Civil Action No. 10-1479 (JEB)