COLLEEN KOLLAR-KOTELLY, District Judge.
Plaintiff Elham Sataki filed the above-captioned action through counsel on April 2, 2010. She named as Defendants her employer, the Broadcasting Board of Governors ("BBG"), as well as several members and employees of the BBG, both in their official and individual capacities ("Individual Defendants") (collectively with BBG, "Defendants"). In her Complaint, Plaintiff alleges that Defendants have violated her constitutional rights under the First, Fourth, Fifth, and Fourteenth Amendments and have also denied her a reasonable accommodation for her alleged disability under the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq.
On May 20, 2010, Plaintiff filed the now pending Motion for a Temporary Restraining Order.
The Broadcasting Board of Governors is a federal agency responsible for the U.S. Government's international broadcasting. See Grosdidier v. Chairman, BBG, 560 F.3d 495, 496 (D.C.Cir.2009). It manages a network of individual broadcasting services, including the International Broadcasting Bureau, which carries out government-sponsored nonmilitary international broadcasting through the Voice of America ("VOA") and other entities. See 22 U.S.C. §§ 6202, 6204, 6206. The Persian News Network ("PNN"), which is under the VOA, provides TV and radio news and information programming to an audience in Iran.
Plaintiff Elham Sataki is a GS-12 international broadcaster for PNN. See Pl.'s Mot., Ex. 1 (First Declaration of Elham Sataki) (hereinafter, "First Sataki Decl."), ¶ 6; Defs.' Opp'n, Ex. 2 (Declaration of Donna Grace) (hereinafter, "Grace Decl."), ¶ 7. Her duty station is in Washington, D.C. Grace Decl. ¶ 7 & Ex. G (SF-50). Plaintiff began working for PNN as an employee on February 19, 2008. See id., Ex. G (SF-50). Plaintiff's responsibilities include reading news segments for the shows "News and Views" and "News Brief," which are both taped in Washington, D.C., as well as performing general assignments, which involves going into the field, conducting interviews, and creating "packages." See Defs.' Opp'n, Ex. 3 (Declaration of Susan Reed Jackson) (hereinafter, "Jackson Decl."), ¶ 3.
Since as early as August 2009, Plaintiff has requested to be assigned to Los Angeles, California, where she resided for nearly 10 years prior to accepting her current position with PNN. See Defs.' Opp'n, Ex. 6 (correspondence from Plaintiff to VOA supervisor dated August 26, 2009; January 5, 2010; and January 14, 2010); see First Sataki Decl. ¶¶ 3-4. A separate division of VOA—the Central News Division (which is not a part of PNN)—has a Los Angeles office that is staffed by two employees, namely, a Supervisory International Radio Broadcaster, GS-13, who serves as a correspondent, and a Program Assistant, GS-9, who produces radio and television transmissions. See Defs.' Opp'n, Ex. 8 (Declaration of Jack Payton) (hereinafter, "Payton Decl."), ¶ 2. PNN has occasionally used the Central News Division's studio office to permit its employees in the D.C. office to remotely interview an individual in Los Angeles. Id. ¶ 3. In addition, PNN has three contractors located in Los Angeles,
Plaintiff does not dispute, nor has she offered any evidence to contradict, Defendants' sworn assertion that PNN does not have any full time employment positions available at VOA's office in Los Angeles. In addition, the Court notes that there is no evidence in the record to indicate that any full-time PNN employee assigned to PNN's Washington, D.C. office has ever been permitted to "telecommute" from VOA's Los Angeles office for extended periods of time. While Plaintiff generally asserts that many of VOA's employees "telecommute to work from all around the nation on a regular basis," Pl.'s Reply at 19-20, there is no indication in the record that any PNN employees assigned to the Washington, D.C. office have been permitted or are otherwise able to telecommute from VOA's Los Angeles office.
It appears that on some unspecified date in February 2010, Plaintiff voluntarily traveled to Los Angeles, California, for personal reasons using annual leave. While there, Plaintiff asserts that she suffered "a complete nervous breakdown," causing her to become "mentally and physically disabled." See Compl. ¶ 6(f). On February 24, 2010, Plaintiff was diagnosed by Dr. Arlene T. Aviera, her treating clinical psychologist, as suffering from a major depressive disorder, who also noted that Plaintiff was suffering from migraine headaches and had a history of a bleeding ulcer with recurring pain. See Pl.'s Opp'n, Ex. 6 (medical reports prepared by Dr. Aviera). Dr. Aviera indicated that Plaintiff was unable to work at that time. Id.; see also id. (first follow-up report by Dr. Aviera dated March 18, 2010, confirming that Plaintiff continued to suffer from a major depressive disorder, but indicating that there had been "some positive shift in [Plaintiff's] depressed mood" and recommending that Plaintiff "continue on disability").
On March 10, 2010, having exhausted all but 4 and 1/4 hours of her annual leave and 4 hours of her sick leave, Plaintiff requested leave under the Family Medical Leave Act and/or advanced annual or sick leave. Defs.' Opp'n, Ex. 4 (Declaration of Lisa Anderson) (hereinafter, "Anderson Decl."), ¶¶ 2-3. PNN provided Plaintiff with advanced annual leave for payperiods 5 and 6, but determined that she was not eligible for advanced sick leave under BBG's human resource policies. Id. ¶¶ 4-5. Specifically, as BBG advised Plaintiffs counsel, in order to obtain advanced sick leave, an employee must demonstrate that she will return to duty after the period of sick leave is completed; because Plaintiff did not provide BBG at that time with any
On March 25, 2010, BBG's Office of Civil Rights received a complaint from Plaintiff alleging discrimination and reprisal. See Defs.' Opp'n, Ex. 1 (EEO Complaint). The complaint was accepted on March 30, 2010, and the claims were revised on April 9, 2010. See Defs.' Opp'n, Ex. 5 (Declaration of Michael D. Hill) (hereinafter, "Hill Decl."), ¶ 4. The complaint is currently still within the administrative stage. Id. ¶ 5. Nonetheless, Plaintiff filed the instant lawsuit on April 2, 2010. See Compl., Docket No. [1].
Plaintiff was authorized by the Chief of Staff for VOA to be detailed to the Middle East Desk at the Central News Division in Washington, D.C., during the course of the investigation into her claims of sexual harassment and retaliation. Defs.' Opp'n, Ex. 7 (Declaration of Barbara N. Brady) (hereinafter, "Brady Decl."), ¶ 2. The detail would permit Plaintiff to continue to conduct the job duties she performed at PNN, such as field reporting and working on packages, although her work would be produced in English. Id. ¶ 3. Plaintiff would have reported directly to and been supervised by Central News Division staff. Id. The detail was intended to separate Plaintiff from the PNN co-worker whom she alleges sexually harassed and assaulted her as well as her PNN supervisors whom she claims retaliated against her; the Central News Division's Office does not share space with PNN, and VOA offered to work
Plaintiff counters that the suggested accommodation is inadequate for two principal reasons. First, Plaintiff asserts in her briefing that she is "not comfortable enough in English" to report in that language. See Pl.'s Reply at 13, n. 1. This assertion, however, is made only in Plaintiff's pleadings, and there is no evidence to support this claim; to the contrary, the only evidence in the record on this point indicates that Plaintiff is fluent in English. See First Sataki Deck, Ex. 1 (Plaintiff's resume, indicating that she is able to "fluently speak, read and write" in "Swedish, Persian (Farsi), and English"). Second, Plaintiff asserts that because the Middle East Desk is located in the same building as PNN and shares the same recording studios, walkways and common areas, she will be regularly exposed to her alleged harasser and the PNN managers who have allegedly retaliated against her. See Pl.'s Reply at 13, n.1. Again, however, Plaintiff has not pointed to any evidentiary support in the record for her assertion that she would be "regularly exposed" to the PNN staff if she accepted the Central News Division detail, and such an assertion directly contradicts the sworn statement of Ms. Brady that "[t]here is no shared spaced with the Persian News Network." Brady Decl. ¶ 4. Furthermore, Plaintiff's alleged harasser is currently on administrative leave, and BBG has asked Plaintiff's counsel "to provide suggestions in order to ensure the arrangement would work more efficiently." Id. ¶ 4. The record does not indicate that any such suggestions have been provided by Plaintiff, other than the request to work out of the Los Angeles VOA office.
On April 19, 2010, Plaintiff's treating clinical psychologist, Dr. Aviera, provided a follow-up to her previous medical reports indicating that "while the diagnosis of Major Depressive Disorder still holds, [Plaintiff] continues to manifest some psychological improvement." See Pl.'s Mot., Ex. 6 (medical reports prepared by Dr. Aviera). Dr. Aviera "recommended that [Plaintiff] return to work on May 5, 2010."
Based on this recommendation, on or about May 7, 2010, Plaintiff advised BBG, through her attorney, that she was prepared to and would report to work, but indicated that she would report to the VOA office in Los Angeles. See Pl.'s Mot., Ex. 9 (May 12, 2010 Letter from Donna S. Grace, Director of the Office of Human Resources, to Plaintiff's counsel). On May 12, 2010, Plaintiff was advised by BBG that she should instead report for duty in Washington, D.C. and noted once again that BBG was willing to place her on detail to the Central News Division in Washington, D.C. See id. She was further informed that failure to report for work in Washington, D.C. on May 14, 2010, without prior authorization for additional leave,
In response, Plaintiff provided a letter from Dr. Aviera, dated May 13, 2010, in which Dr. Aviera "strongly recommend[ed]" that Plaintiff be permitted to work in Los Angeles. See Pl.'s Mot., Ex. 9 (May 13, 2010 Letter from Dr. Aviera to Donna S. Grace, Director of the Office of Human Resources, to Plaintiff's counsel). Dr. Aviera's letter was forwarded by Plaintiff's counsel to BBG on May 14, 2010, along with an email indicating that Plaintiff would report to the VOA office in Los Angeles. See Pl.'s Mot., Ex. 9 (May 14, 2010 emails). On May 18, 2010, BBG sent a letter to Plaintiff, via counsel, reiterating that no position existed in Los Angeles and indicating that Plaintiff had been placed on AWOL status in light of her failure to report for duty. See id. (May 18, 2010 Letter from John Lennon to Plaintiff's Counsel). BBG further advised Plaintiff that her request for a reassignment was not a reasonable accommodation and therefore requested that Plaintiff state a reasonable accommodation supported with proper medical documentation. Id.
At present, Plaintiff remains in Los Angeles and has not reported to work in Washington, D.C. BBG has recently advised the Court that, in an effort to compromise on the issues raised in Plaintiff's Motion, it has agreed to place Plaintiff on unpaid leave and therefore no longer classifies her as AWOL. Defs.' Opp'n at 5 & n. 2. Plaintiff therefore has not been terminated and thus, unlike a terminated employee, has not lost access to any previously-held health insurance coverage.
As indicated above, Plaintiff filed the instant action on April 2, 2010. See Compl., Docket No. [1]. Plaintiff's Complaint sets forth six causes of action:
Plaintiff seeks, inter alia, compensatory and punitive damages and a permanent injunction ordering "that Plaintiff be given `reasonable medical accommodation' by being detailed and installed permanently" in the Los Angeles office of VOA. See id. at p. 21.
On May 20, 2010, Plaintiff filed the now pending Motion for a Temporary Restraining Order and/or Preliminary Injunction. As set forth therein, Plaintiff requests issuance of a temporary restraining order and/or preliminary injunction that, in Plaintiff's words: (1) "restrain[s][BBG] from preventing Plaintiff from reporting to work immediately at the Los Angeles Office of Voice of America to perform her duties as an international broadcaster in the Persian News Service and be paid her normal salary henceforth as a Grade GS-12;" and (2) "restrain[s][BBG] from not reimbursing Plaintiff for all back pay[,] used vacation time, and accrued benefits up to and including the present." Pl.'s Mot., Ex. 1 (Proposed Order). Despite Plaintiff's attempts to phrase her requested relief as seeking only a passive injunction, it is readily apparent that Plaintiff in fact seeks a mandatory injunction requiring Defendants to affirmatively permit Plaintiff to work from the VOA Los Angeles office. Plaintiff asserts that such a request is a "reasonable medical accommodation" for Plaintiff's present disability and is therefore required under the Rehabilitation Act.
As indicated previously, the Court held an on-the-record conference call with counsel for all parties on May 25, 2010, to discuss Plaintiff's Motion. At that time, Plaintiff indicated through counsel that she wished to proceed directly to her request for a temporary restraining order. Accordingly, the Court indicated that it would hold her request for a preliminary injunction in abeyance and set an expedited briefing schedule for consideration of Plaintiff's request for a temporary restraining order only. Pursuant to that schedule, Defendants filed their Opposition to Plaintiff's Motion on May 27, 2010,
"The standard for issuance of the `extraordinary and drastic remedy' of a temporary restraining order or a preliminary injunction is very high, and by now very well established." RCM Techs., Inc. v. Beacon Hill Staffing Grp., LLC, 502 F.Supp.2d 70, 72-73 (D.D.C.2007) (citing Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997)). The moving party must show: (1) a substantial likelihood of success on the merits, (2) that it would suffer irreparable injury if the injunction were not granted, (3) that an injunction would not substantially injure other interested parties, and (4) that the public interest would be furthered by the injunction. Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C.Cir.2006); Hall v. Johnson, 599 F.Supp.2d 1, 6 n. 2 (D.D.C.2009) ("[t]he same standard applies to both temporary restraining orders and to preliminary injunctions"). The moving party bears the burden of persuasion and must demonstrate, "by a clear showing," that the requested relief is warranted. Chaplaincy of Full Gospel Churches, 454 F.3d at 297.
In applying this four-factored standard, district courts may employ a sliding scale as to which a particularly strong showing in one area can compensate for weakness in another area. Id. (quoting CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C.Cir.1995)). Thus, "[a]n injunction may be justified, for example, where there is a particularly strong likelihood of success on the merits even if there is a relatively slight showing of irreparable injury." CityFed., 58 F.3d at 747. Notwithstanding the fluid nature of this familiar four-part inquiry, "[i]t is particularly important for the [movant] to demonstrate a substantial likelihood of success on the merits." Barton v. District of Columbia, 131 F.Supp.2d 236, 242 (D.D.C.2001) (citing Benten v. Kessler, 505 U.S. 1084, 1085, 112 S.Ct. 2929, 120 L.Ed.2d 926 (1992)). If the movant fails to do so, inquiry into the remaining factors is unnecessary, for the injunctive relief must be denied on that ground alone. See Transohio Sav. Bank v. Dir., Off. of Thrift Supervision, 967 F.2d 598, 614 (D.C.Cir.1992) (affirming denial of preliminary injunction where the district court properly concluded that the plaintiff had "no likelihood of success on the merits"); Katz v. Georgetown Univ., 246 F.3d 685, 688 (D.C.Cir.2001) ("although we apply a four-factor test in weighing a request for a preliminary injunction, such relief never will be granted unless a claimant can demonstrate `a fair ground for litigation'"); Taylor v. Resolution Trust Corp., 56 F.3d 1497, 1507 (D.C.Cir.1995) ("Given the inadequacy of [plaintiff]'s prospects for success on the merits, there may be no showing of irreparable injury that would entitle him to injunctive relief"), amended on other grounds on reh'g, 66 F.3d 1226 (D.C.Cir.1995). Applying these standards to the case at hand, the Court finds that Plaintiff has failed to demonstrate that she
Before turning to consider the facts of this case under the test outlined above, the Court pauses briefly to address the issue of its jurisdiction to entertain Plaintiff's request for interim injunctive relief. As is discussed in more detail below, Plaintiff did not exhaust her administrative remedies prior to filing suit. While Plaintiff's failure to exhaust will, as Defendants argue, bar this Court from deciding the merits of Plaintiff's claims, see generally Defs.' MTD, it does not necessarily deprive the Court of jurisdiction over Plaintiff's Motion for a Temporary Restraining Order. As the D.C. Circuit has made clear, "federal district courts are authorized to afford interim injunctive relief against retaliatory transfer and other acts of reprisal while the administrative and judicial processes are ongoing." Wagner v. Taylor, 836 F.2d 566, 570 (D.C.Cir.1987). Accordingly, if "the court may eventually have jurisdiction of the substantive claim, the court's incidental equitable jurisdiction, despite the agency's primary jurisdiction, gives the court authority to impose a temporary restraint in order to preserve the
Plaintiff has relied on the D.C. Circuit's decision in Wagner for the assertion that this Court has the authority to issue interim injunctive relief in this case. Defendants appear not to directly contest this point, acknowledging that "[c]ourts in this district have occasionally exercised their powers to fashion interim injunctive relief in employment discrimination cases prior to the completion of the administrative process." Defs.' Opp'n at 19. As Defendants correctly emphasize, however, the authority to issue such relief arises from the Court's "`limited judicial power to preserve [its] jurisdiction or maintain the status quo by injunction pending review of an agency's action through the prescribed statutory channels.'" Wagner, 836 F.2d at 571 (quoting FTC v. Dean Foods Co., 384 U.S. 597, 604, 86 S.Ct. 1738, 16 L.Ed.2d
Key to Plaintiff's request for a temporary restraining order, the Court finds that she is unlikely to succeed on her claim under the Rehabilitation Act for a reasonable accommodation. This claim forms the substantive basis for Plaintiff's request—in both her Motion for a Temporary Restraining Order as well as in her Complaint—for an order mandating Defendants to authorize Plaintiff to work from Los Angeles during the pendency of any administrative or litigation proceedings and to pay Plaintiff any owed salary and benefits. Significantly, however, Plaintiff is unable to demonstrate that she has a substantial likelihood of success as to this principal claim underlying her pending request for interim injunctive relief.
Pursuant to the Rehabilitation Act, federal employers are required to make "reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability." 42 U.S.C. § 12112(b)(5)(A) (incorporated into the Rehabilitation Act by 29 U.S.C. § 791(g)). Plaintiff has failed to state a meritorious claim under the Rehabilitation Act for two principal reasons.
Second, even assuming Plaintiff had alleged a proper claim under Section 501 of the Rehabilitation Act, such a claim is nonetheless unlikely to succeed for several reasons. For purposes of this discussion, the Court accepts as true all statements contained in the medical documentation submitted by Plaintiff in support of her Motion for a Temporary Restraining Order. It remains clear, however, that Plaintiff is unlikely to prevail on her claim based on the evidence in the present record. In order to ultimately succeed on her claim under the Rehabilitation Act, Plaintiff must show that she was disabled. Desmond v. Mukasey, 530 F.3d 944, 952-53 (D.C.Cir. 2008).
Regardless, even if Plaintiff can demonstrate that she is disabled, she is unlikely to succeed in demonstrating that Defendants failed to reasonably accommodate her disability. Section 501(b) of the
In this case, the record indicates that BBG has, as it should have, initiated an interactive process with Plaintiff to determine an appropriate reasonable accommodation. While Plaintiff has consistently insisted that the only acceptable solution is to permit her to relocate to or telecommute from the Los Angeles area, the evidence in the present record indicates that this request is not a reasonable accommodation under Rehabilitation Act case law for two reasons. First, it does not appear from the record now before the Court that Plaintiff can perform the essential functions of her job from Los Angeles. As indicated above, Plaintiff's responsibilities in her current position include reading news segments for the shows "News and Views" and "News Brief," which are both taped in Washington, D.C., as well as performing general assignments, which involves going into the field, conducting interviews, and creating "packages." "Jackson Decl." ¶ 3. Given the absence of any full time PNN employees or support staff in Los Angeles and the fact that PNN does not perform any on-air work in Los Angeles, id. ¶ 8, Plaintiff is likely unable to perform her present responsibilities from the VOA Office in Los Angeles. Indeed, Plaintiff appears to recognize as much, indicating that she is "willing to do any work that is available in the Los Angeles office of VOA" and proposing that she be permitted to "do the work of the contractors in Los Angeles." Second Sataki Decl. ¶ 9. BBG, however, "is not obligated to `bump' another employee in order to create a vacancy for the disabled employee" nor is it obligated "to create a new position for the disabled employee." McCreary v. Libbey-Owens-Ford Co., 132 F.3d 1159, 1165 (7th Cir.1998).
Second, the requested accommodation is likely to cause BBG undue hardship for these very same reasons. See, e.g., Bowden v. Clough, 658 F.Supp.2d 61, 93 (D.D.C.2009) (plaintiff's request was not a reasonable accommodation and would cause undue hardship to employer "given that [the agency] may not have the technological or personnel resources to accommodate the plaintiff's desire" to attend meetings remotely). In this case, there is no evidence in the record that PNN has the technological capabilities or resources to permit Plaintiff to telecommute from Los Angeles. Despite Plaintiff's general assertion that many of VOA's employees "telecommute to work from all around the nation on a regular basis," Pl.'s Reply at 19-20, there is no evidence that any PNN
In addition, Plaintiff is unlikely to succeed on her constitutional claims, which, along with her Rehabilitation Claim, appear to form the basis for Plaintiff's request for interim injunctive relief in the form of an order mandating Defendants immediately pay Plaintiff any salary and benefits owed. First, to the extent Plaintiff's constitutional claims seek to challenge the alleged national origin and sex-based discrimination, hostile work environment, sexual harassment, and retaliation, her claims are preempted by Title VII. As the Supreme Court has made clear, Title VII is the "exclusive remedy" for federal employees seeking to challenge employment discrimination based upon their race, national origin, color or sex, and to challenge any reprisal for the employee's protected EEO activity. Brown v. General Serv. Admin., 425 U.S. 820, 821, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976); see also Kizas v. Webster, 707 F.2d 524, 542 (D.C.Cir. 1983) ("Title VII constitutes the exclusive remedy for claims of employment discrimination by federal employees subject to its protection") (internal quotation marks omitted). For this reason, the D.C. Circuit "has repeatedly held that federal employees may not bring suit under the Constitution for employment discrimination that is actionable under Title VII." Ethnic Employees of the Library of Congress v. Boorstin, 751 F.2d 1405, 1415 (D.C.Cir.1985); see also Kizas, 707 F.2d at 543 (federal employees "may not circumvent the `careful and thorough remedial scheme' Congress ordered for them") (quoting Brown, 425 U.S. at 833, 96 S.Ct. 1961). Accordingly, Title VII bars all of Plaintiff's constitutional claims against BBG (and any claims against the Individual Defendants in their official capacity), as asserted in Counts II, III, and IV, to the extent they are based on allegations that Plaintiff was discriminated against in her job.
Second, Plaintiff cannot succeed on Count I of her Complaint, which alleges that Defendants infringed her right to free speech in violation of the First Amendment by retaliating against her for her personal political views, her criticism of VOA, and other unspecified speech made at VOA/PNN, Congress, and elsewhere. This claim is barred by the Civil Service Reform Act ("CSRA"), which requires Plaintiff first exhaust her administrative remedies as a jurisdictional prerequisite to bringing suit. Convertino v. U.S. Dep't of Justice, 393 F.Supp.2d 42, 47 (D.D.C.2005). Significantly, there is no allegation that Plaintiff herself has even initiated the administrative proceedings by filing a complaint with the Office of Special Counsel with respect to her allegations in her Complaint. See 5 U.S.C. § 1214.
Third, Plaintiff cannot succeed on her claims for damages against BBG and the official-capacity Defendants to the extent that they are based on alleged violations of her constitutional rights as there is no damages remedy against federal agencies (or official capacity defendants) for alleged constitutional remedies. Taylor v. FDIC, 132 F.3d 753, 768 (D.C.Cir.1997). She is similarly unlikely to succeed on her claims for monetary damages against the Individual Defendants in their individual capacities.
Because Plaintiff has failed to demonstrate a substantial likelihood of success on the merits, the Court's inquiry is at an end. As the D.C. Circuit has observed, "[g]iven the inadequacy of [Plaintiff's] prospects for success on the merits, there may be no showing of irreparable injury that would entitle him to injunctive relief," and the Court's inquiry need go no further. Taylor, 56 F.3d at 1507. Accordingly, although the Court understands Plaintiff's present health concerns, absent a showing that she is legally entitled to the particular injunctive relief she seeks, the Court must DENY Plaintiff's Motion for a Temporary Restraining Order.
For the reasons set forth above, Plaintiff's Motion for a Temporary Restraining is DENIED insofar as the motion seeks issuance of a temporary restraining order. An appropriate Order accompanies this Memorandum Opinion.