COLLEEN KOLLAR-KOTELLY, District Judge.
Presently pending before the Court are Plaintiff Elham Sataki's [11] Motion for a Preliminary Injunction
Plaintiff has filed a series of administrative and legal complaints seeking review of her allegations of harassment and retaliation. She initially filed suit against her alleged harasser on March 1, 2010, in the Superior Court of the District of Columbia. That case was subsequently removed to this Court on March 19, 2010, and remains pending at this time. See Sataki v. Falahati, Civ. Act. No. 10-466(CKK). Thereafter, on March 25, 2010, Plaintiff filed a complaint with BBG's Office of Civil Rights, which complaint also remains pending before the agency. Finally, on April 2, 2010, approximately one week after filing her administrative complaint, Plaintiff filed the above-captioned lawsuit. She has named as Defendants in this action BBG and several members and employees of the BBG, both in their official as well as their individual capacities ("Individual Defendants") (collectively with BBG, "Defendants"). As set forth in Plaintiff's initial complaint, she alleges that Defendants violated her constitutional rights under the First, Fourth, Fifth, and Fourteenth Amendments and failed to provide her with a reasonable accommodation in violation of the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq.
Much ink has been spilled with respect to Plaintiff's request for interim injunctive relief, with the result that the record now before the Court has become voluminous and, at times, unwieldy. This is largely the result of the shifting nature of Plaintiff's legal arguments and factual claims, which have necessitated several rounds of additional briefing by the parties. Ultimately, the Court finds that many of the issues raised by the parties in their present briefing are immaterial to resolution of Plaintiff's request for interim injunctive relief. Nonetheless, given the numerous factual issues raised by Plaintiff in her pending motions and her oft-repeated— although wholly inaccurate—assertions that the Court has failed to consider all evidence relevant to the pending dispute, the Court sets forth below a comprehensive discussion of the factual background of this case. The Court does so in order to ensure that the record, as well as the Court's findings with respect to those issues raised by Plaintiff, is clearly and concisely set forth and that the issues raised by Plaintiff are each addressed, either explicitly or in summary form. As many of these issues ultimately prove immaterial to the resolution of the pending motions, however, the Court has limited its legal discussion below solely to those factual and legal issues that are directly relevant to the merits of Plaintiff's pending request for interim injunctive relief and which the Court has relied upon in denying Plaintiff's motions. With that understanding in mind, the Court turns now to its discussion of the factual background of the claims in this litigation.
The Court first addresses Plaintiff's repeated requests for an evidentiary hearing on her pending Motion for a Preliminary Injunction. It is well established in this Circuit that courts have discretion to resolve a preliminary injunction motion on the basis of the parties' briefing without a hearing, when appropriate. See LCvR 65.1(d). Further, even when a hearing is held, "[t]he practice in this jurisdiction is to decide preliminary injunction motions without live testimony where possible." Id. Plaintiff nonetheless asserts that an evidentiary hearing is required so that she may present the live testimony of her treating clinical psychologist, see Pl.'s Notice, Docket No. [20], and so that she may cross-examine Defendants' declarants on the substance of their testimony submitted in opposition to Plaintiff's motion, see Pl.'s Supp. Reply at 4.
The Court has determined in its discretion, upon careful review of the parties' legal memoranda and attachments, that an evidentiary hearing is not necessary. While the parties unquestionably dispute many of the facts underlying Plaintiff's substantive claims in this action, the Court finds that none of these disputes are material to or directly affect the Court's resolution of Plaintiff's request for interim injunctive relief. As indicated below, the Court has accepted the statements of Plaintiff's treating clinical psychologist as well as her treating psychiatrist for purposes of this Memorandum Opinion. Moreover, although Plaintiff generally alleges that the declarations attached to Defendants' memoranda "must [be] treat[ed] as suspect," see Pl.'s Supp. Reply at 4, her conclusory assertions on this point are insufficient to create a dispute of material fact absent specific evidence directly contravening the particular statements she seeks to challenge. Where Plaintiff has in fact proffered such evidence, the Court has noted as much and, where appropriate, has found for the reasons set forth below that such disputes are not material to the merits of Plaintiff's request for interim injunctive relief and therefore need neither be resolved at this time nor relied on. Where, however, Plaintiff has failed to either dispute specific statements made by Defendants or introduce any contradictory evidence into the record, the Court has accepted Defendants' statements as undisputed for purposes of this Memorandum Opinion. The Court emphasizes that no disputed facts asserted by Plaintiff and/or Defendants, material or otherwise, have been relied upon in reaching the ultimate decision below that Plaintiff is not entitled to the requested interim injunctive relief. No evidentiary hearing is therefore required.
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, which is under the VOA, provides television 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 to Pl.'s Mot. (hereinafter, "Defs.' Opp'n"), Docket No. [30], Ex. 2 (First Declaration of Donna Grace) (hereinafter, "First Grace Decl."), ¶ 7. Her duty
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 PNN supervisor dated August 26, 2009; January 5, 2010; and January 14, 2010); 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 in Los Angeles 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, two of whom are contract video journalists and the third of whom is a web editor; the contractors are allowed to use spare desks located in the Central News Division's Los Angeles office as needed. Payton Decl. ¶¶ 3, 5; see also Jackson Decl. ¶ 7. The contractors are not staff but instead work freelance on a day rate and are expected to work independently. Jackson Decl. ¶ 7. PNN does
As set forth in Plaintiff's Amended Complaint, she asserts that she has been the subject of ongoing retaliation and sexual harassment by various BBG employees since the fall of 2008. Specifically, Plaintiff alleges that in or around September 2008, while she was serving in the role as a reporter and anchor for the PNN television show "Today's Woman," Plaintiff was "berated and verbally attacked" by a BBG Senior Executive Producer. Am. Compl., Docket No. [35], at 3.
In addition, Plaintiff asserts that beginning on or about March 1, 2009, she was subjected to unwanted verbal and physical advances by a married, male BBG co-worker who served as her co-host on the television show "Straight Talk." See id. at 4. Plaintiff alleges that when she refused her co-host's advances and complained of these incidents to her supervisors at PNN, the co-worker attempted to have Plaintiff removed from her co-anchor position on "Straight Talk." Id. Beginning in July of 2009, Plaintiff asserts that this co-worker "began and perpetrated a continuous and daily campaign which included but was not limited to publicly disparaging Plaintiff's language ability in Farsi," "manufactur[ing] false complaints from viewers about Plaintiff ... and ... publish[ing] these false complaints to Plaintiff's supervisors," and advising Plaintiff's supervisors that Plaintiff "lacked the skills to be a television anchor." Id. at 5. As a result of these actions, Plaintiff alleges that she lost her job as a co-anchor on "Straight Talk" and was "relegated to what are in effect menial chores at VOA/PNN." Id.
Plaintiff also alleges that Defendants have retaliated against her for her self-described "strong personal views that VOA/PNN should be more pro-American and supportive of the opposition freedom movement in Iran." Id. at 6. According to
Plaintiff asserts that, as a result of these alleged actions by Defendants, she has suffered mental and physical injuries. See id. at 12. For purposes of evaluating Plaintiff's request for interim injunctive relief only, Defendants have not factually disputed Plaintiff's allegations regarding the severity of her self-reported physical and mental injuries nor have they challenged the medical conclusions reached by Plaintiff's treating psychologist and psychiatrist. The Court shall therefore do the same. As such, the medical evidence in the record with respect to Plaintiff's present injuries is undisputed for purposes of the instant Memorandum Opinion, and there is no need to hold an evidentiary hearing to permit further testimony on this issue.
Plaintiff states that at some unspecified point in February 2010, she used annual leave to voluntarily travel to Los Angeles, California, because she "could not even stand to be in the same town as [her] sexual harasser, much less the same building." See Pl.'s Supp. Reply in Support of her Mot., Docket No. [44], Ex. EE (Third Declaration of Elham Sataki) (hereinafter, "Third Sataki Decl."), ¶ 13; see also Am. Compl. at 8. While there, Plaintiff alleges that she suffered "a complete nervous breakdown," causing her to become "mentally and physically disabled." Id. at 8. It appears from the record that Plaintiff subsequently informed BBG that she could not return to work at her position in PNN's Washington, D.C. office; in response, on or around February 22, 2010, BBG advised Plaintiff that the Chief of Staff for VOA had authorized her to instead be detailed to the Middle East Desk
On February 24, 2010, Plaintiff was diagnosed by Dr. Arlene T. Aviera, her treating clinical psychologist, as suffering from a major depressive disorder. See Pl.'s Opp'n, Ex. 6 (medical reports prepared by Dr. Aviera). Plaintiff was also reported to suffer from migraine headaches and to have a history of a bleeding ulcer with recurring pain. Id. Dr. Aviera opined that Plaintiff was unable to work at that time. Id. This opinion was reaffirmed by Dr. Aviera in a follow-up report dated March 18, 2010. See 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 Plaintiff's 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 medical documentation indicating a date by which it was expected that she could return to work after the period of sick leave was completed, Plaintiff was found to be ineligible for the advanced sick leave. Id. ¶ 5.
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,
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). By letter dated May 12, 2010, BBG advised Plaintiff that she should instead report for duty in Washington, D.C. and repeated its offer to detail her to the Central News Division. 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, would be grounds for placing her on Absence Without Leave ("AWOL") status, which could form the basis for disciplinary action. See id.
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). Dr. Aviera's letter was forwarded by Plaintiff's counsel to BBG on May 14, 2010, along with an email again stating 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 consistent with its prior communications. See id. (May 18, 2010 Letter from John Lennon to Plaintiff's Counsel). BBG further advised Plaintiff that her request for a reassignment to the Los Angeles office of VOA was not a reasonable accommodation and therefore requested that Plaintiff resubmit a valid reasonable accommodation supported with proper medical documentation. Id.
As a result of this communication from BBG, Plaintiff self-reported an escalation in her depression and anxiety, which required an increase in her medication and more frequent psychotherapeutic interventions and also caused Plaintiff to relapse "into a suicidal despair." Pl.'s Supp. Mem., Ex. BB (May 28, 2010 Letter from Dr. Aviera). As of May 28, 2010, Dr. Aviera opined that "if [Plaintiff] is forced to return to this atmosphere in the D.C. office, ... she will inevitably suffer a severe deterioration in her mental condition that could again put her at a substantial suicidal risk." Id. Plaintiff's psychiatrist, Dr. James T. Long, concurs with Dr. Aviera on this latter point and concludes that, "[i]f given a new environment, away from the one in which she was injured, she will, in time, with continued treatment be able to be a full functioning individual in the work arena performing the same tasks as before she was injured." Pl.'s Supp.
At present, Plaintiff remains in Los Angeles and has not reported to work in Washington, D.C. BBG 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 leave without pay status ("LWOP") and therefore no longer classifies her as AWOL. See Defs.' Supp. Opp'n, Docket No. [46], Ex. 1 (June 17, 2010 Letter from John Lennon to Plaintiff). As Defendants explain, leave without pay is a category of approved absence from duty that is always unpaid. Def.'s Supp. Surreply, Ex. 15 (Second Declaration of Donna S. Grace) (hereinafter, "Second Grace Decl."), ¶ 3. An employee placed on LWOP retains all of her health insurance benefits and remains fully insured throughout the period of LWOP. Id. ¶ 7. While Plaintiff remains on LWOP, the Government continues to pay its portion of her health insurance premiums. Id. Because Plaintiff is not receiving a salary while she is on LWOP, however, she does not pay her portion of the insurance premium through payroll deduction during her absence from work; rather, in accordance with government-wide pay regulations, she will receive a bill for her share of health insurance premiums owed from her period of LWOP when she returns to work and once again begins earning a salary. Id. Importantly, the fact that Plaintiff is not presently paying her share of the premium while on LWOP status does not cause an interruption of her health benefits. Id. Accordingly, as a result of BBG's decision to place Plaintiff on LWOP, she has not been terminated and thus, unlike a terminated employee, has not lost access to any previously-held health insurance coverage. Finally, the Court notes that in deciding to place Plaintiff on LWOP, Defendants denied Plaintiff's request to be placed on paid administrative leave. Defendants indicate that Plaintiff's request was denied because she was found to be ineligible for paid administrative leave.
Plaintiff contends that this denial was in error. Pl.'s Mot. at 15; see also Pl.'s Supp. Reply at 6. While Plaintiff does not now seek an order requiring Defendants to
See Pl.'s Mot., Ex. 10 (VOA Manual of Operations & Administration), § 691.3.a (emphasis added); see also First Grace Decl., Ex. D (same). Plaintiff has not argued, much less shown, that she is presently receiving treatment from a physician authorized by BBG to handle workplace injuries. Moreover, as explained by Defendants, this section is intended to apply to employees who have been injured in the performance of their duties and who intend to seek workers' compensation benefits. Second Grace Decl. ¶ 4. Plaintiff declined to pursue workers' compensation benefits in this case, see Pl.'s Supp. Resp. to Defs.' Supp. Surreply, Docket No. [56], at 9 (acknowledging that Plaintiff declined to pursue a worker's compensation claim), and therefore is not entitled to administrative leave under this provision. Accordingly, on the present record, Plaintiff has not shown that Defendants improperly denied her administrative leave.
As indicated above, BBG offered to detail Plaintiff to a vacant position at the Central News Desk during the pendency of the investigation into her complaints of harassment and retaliation. The accommodation was offered in compliance with
Plaintiff has consistently refused this accommodation as inadequate and has instead maintained that the sole appropriate accommodation is to permit her to work remotely from Los Angeles. See Pl.'s Reply at 13, n. 1; see also Third Sataki Decl. ¶¶ 2-10. Plaintiff further argues that the offered assignment to the Central News Division is inadequate because: (a) she lacks sufficient English proficiency; (b) she is unable to speak Arabic; (c) Arabic and Persians "each have very strong and conflicting cultures, such that her ability to report on Arabic news would be hampered;" and (d) although the Central News Division and PNN have separate offices, they are located in the same building and share the same recording studios, walkways and common areas, such that she would likely be exposed to her alleged harasser and PNN management. See Pl.'s Reply at 13, n. 1; see also Third Sataki Decl. ¶¶ 2-10. Contrary to Plaintiff's concerns, however, the record indicates that the detail to the Central News Division would have permitted Plaintiff to continue reporting on Persian-related issues and would not have limited Plaintiff to reporting only on Arabic news stories. See, e.g., Pl.'s Mot., Ex. 11 (May 12, 2010 Letter from Donna S. Grace to Plaintiff) (indicating that under the detail to the Central News Division, Plaintiff "would continue to work on Iran-related news stories"); Brady Decl. ¶ 3 (indicating that packages produced by Plaintiff at the Central News Division would be made available for all of the language services of VOA, including PNN). Although the evidence in the record as to Plaintiff's ability to speak English is less clear, the Court accepts, for purposes of the instant Memorandum Opinion, Plaintiff's present assertion that she cannot fluently speak English.
Rather, Plaintiff has consistently maintained that the sole appropriate accommodation for her alleged disabilities is to permit her to work from the Los Angeles office of the VOA. As indicated above, there is no available PNN position in Los Angeles, a point which Plaintiff concedes. Nor has any PNN employee previously been detailed to the Los Angeles VOA office or been permitted to work remotely from that office for an extended period of time, again a point which Plaintiff does not dispute. Plaintiff insists, however, that she is not asking PNN to create a new position for her in Los Angeles; rather, according to Plaintiff, she is seeking only authorization from BBG to perform her current job functions as an International Broadcaster from the Los Angeles VOA office during the pendency of her administrative and legal proceedings. See Third Sataki Decl. ¶ 22.
There is a dispute in the record as to the Plaintiff's capability to perform her current job functions remotely from Los Angeles. As noted above, Plaintiff is a GS-12 International Broadcaster for PNN and her responsibilities generally fall into two categories: (1) reading news segments for the shows "News and Views" and "News Brief," which are both taped in Washington, D.C.; and (2) performing general assignments, which involves going into the field, conducting interviews, and creating "packages." Jackson Decl. ¶ 3; First Sataki Decl. ¶ 6; First Grace Decl. ¶ 7. BBG asserts that Plaintiff is not capable of performing these duties from Los Angeles for two principal reasons. First, with respect to Plaintiff's responsibilities in connection
By contrast, Plaintiff contends that she is capable of performing her current job functions from Los Angeles. Significantly, however, in making this argument, Plaintiff has focused exclusively on her ability to independently produce packages from Los Angeles for transmission back to Washington, D.C. and has failed to specifically address Defendants' assertion that Plaintiff cannot, as a practical matter, perform from Los Angeles her present on-air duties in connection with the shows "News and Views" and "News Brief," which are both taped in D.C. See generally Pl.'s Supp. Mem.; Second Sataki Decl.; Third Sataki Decl.
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. Plaintiff therefore has not yet exhausted her administrative remedies.
Plaintiff filed the above-captioned action on April 2, 2010, against BBG and the Individual Defendants, in both their individual and official capacities.
On May 20, 2010, Plaintiff filed a[11] Motion for a Temporary Restraining Order and/or Preliminary Injunction. As set forth therein, Plaintiff requested 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).
On June 3, 2010, the parties submitted a[39] Status Report advising the Court that they had been unable to reach an agreement that would consolidate consideration of the preliminary injunction motion with the merits of Plaintiff's underlying claims. The parties therefore proposed and the Court adopted an expedited briefing schedule for resolution of Plaintiff's request for a preliminary injunction.
Thereafter, on June 23, 2010, the Court directed Defendants to file a supplemental surreply addressing certain issues raised in Plaintiff's pleadings, see June 23, 2010 Min. Order, which Defendants filed on June 25, 2010, see Docket No. [52]. On June 29, 2010, Plaintiff responded by filing a Motion to Strike and in the Alternative Motion to File Response to Surreply of Defendants. See Docket No. [56]. By minute order dated that same day, the Court granted-in-part and denied-in-part Plaintiff's motion; specifically, Plaintiff's request to strike Defendants' Supplemental Surreply was denied, but her request to file a substantive response to the arguments contained therein was granted. See June 29, 2010 Min. Order. Noting that Plaintiff's motion included not only her request for leave to file but also contained substantive responses to Defendants' Supplemental Surreply, the Court indicated its understanding that Plaintiff intended her motion to serve as her substantive response to Defendants' Supplemental Surreply and that it would treat the filing as such. See id.
In addition, on June 6, 2010, Plaintiff filed a Motion for Reconsideration of the Court's June 1, 2010 decision denying her request for a temporary restraining order. See Docket No. [41]. Defendants filed an Opposition to Plaintiff's Motion for Reconsideration on June 28, 2010, see Docket No. [55], and Plaintiff filed a Reply in Support of her Motion for Reconsideration on June 30, 2010, see Docket No. [58]. Plaintiff's Motion for Reconsideration is therefore fully briefed and ripe for the Court's resolution as well.
Finally, the Court notes that Plaintiff has filed an Amended Complaint as well in this case. See Docket No. [35]. The Amended Complaint consists of the same allegations included in Plaintiff's original complaint, but is amended to make clear that Plaintiff is seeking temporary injunctive
The Court's resolution of Plaintiff's requests for interim injunctive relief, both in the form of a temporary restraining order and a preliminary injunction, has been hampered by the shifting nature of Plaintiff's legal arguments in support of the requested relief. Plaintiff initially moved for a temporary restraining order based solely on her allegations, as set forth in her initial complaint, that Defendants had violated her constitutional rights and had denied her a reasonable accommodation in violation of the Rehabilitation Act. See Pl.'s Mot. Defendants opposed Plaintiff's request for a temporary restraining order arguing, inter alia, that she was unlikely to succeed on her constitutional claims and that this Court lacked jurisdiction over Plaintiff's Rehabilitation Act claim given her failure to exhaust her administrative remedies prior to filing suit. See Defs.' Opp'n. In response, Plaintiff argued for the first time in her Reply briefing that this Court has authority under the D.C. Circuit's decision in Wagner v. Taylor to "intervene to temporarily preserve the status quo," even though she has not yet exhausted her administrative remedies. See Pl.'s Reply at 9. However, in arguing that the requested interim injunctive relief was warranted, Plaintiff continued to focus on her claims in this lawsuit that Defendants had violated her constitutional rights and denied her a reasonable accommodation under the Rehabilitation Act. Id. (asserting that emergency relief was necessary to "prevent[] further irreparable harm to Ms. Sataki[] ... due to Defendants' retaliatory actions and violation of her constitutional rights"); see also id. at 15-19 (arguing that issuance of the requested relief was necessary based on Defendants' violation of Plaintiff's constitutional rights). The Court subsequently denied Plaintiff's request for a temporary restraining order, finding that Plaintiff had failed to demonstrate a substantial likelihood of success as to her constitutional claims and her claim under the Rehabilitation Act. See Sataki, 733 F.Supp.2d 1, 2010 WL 2195799.
In response, Plaintiff now argues that she seeks a preliminary injunction based solely on her "Wagner claim" as asserted in the Amended Complaint (which was amended after briefing on Plaintiff's temporary restraining order had been completed). See Pl.'s Supp. Mem. at 1-2, 3-4. That is, Plaintiff states that she is only seeking injunctive relief to maintain the status quo during the pendency of the administrative proceedings on her claims under Title VII and the Rehabilitation Act. See id. Plaintiff thus no longer seeks to base her request for preliminary injunctive relief on her constitutional claims asserted in this case and in fact argues that such claims are irrelevant to the present analysis. See id. at 4. The Court therefore
As previously explained, Plaintiff's administrative complaint remains pending, and she therefore has not exhausted her administrative remedies. 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 Preliminary Injunction. In Wagner, the D.C. Circuit held that "federal district courts are authorized to afford interim injunctive relief against retaliatory transfers and other acts of reprisal while the administrative and judicial processes are ongoing." 836 F.2d at 570. 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 the interim injunctive relief requested in this case. As Defendants correctly emphasize, however, the Circuit Court has advised that the authority to issue such interim 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 802 (1966)). Accordingly, while courts in this Circuit have entertained requests for interim injunctive relief during the pendency of an administrative review, they have done so only in situations in which the employee faces a transfer, firing or a similarly adverse change in his or her employment status. See, e.g., id. at 569-70 (plaintiff sought a temporary injunction to avoid future reprisal including proposed transfer); Jordan v. Evans, 355 F.Supp.2d 72, 76 (D.D.C. 2004) (plaintiff sought temporary restraining order to return her to pre-transfer position and to enjoin any action to remove her from her position); Nichols, 18 F.Supp.2d at 2 (employee sought to enjoin agency from terminating him).
Here, Plaintiff seeks to
In this way, there is a fundamental disconnect between the relief Plaintiff now seeks and the legal authority she relies upon in support of such relief. Plaintiff maintains that she is entitled to an order authorizing her to work from Los Angeles because (a) such relief is necessary to maintain the status quo pending resolution by the agency of her discrimination claims and (b) D.C. Circuit precedent authorizes a court to issue injunctive relief to maintain the status quo in such circumstances. As framed by Plaintiff, issuance of the requested preliminary injunction is thus premised upon acceptance of her assertion that she seeks only to preserve the status quo. The facts of this case clearly demonstrate that an order permitting Plaintiff to work from Los Angeles is not designed to maintain the status quo but would in fact affirmatively alter the status quo. Plaintiff's argument in support of her request for a preliminary injunction is therefore based on a fatally flawed premise. Moreover, in the event Plaintiff's request is properly characterized as mandatory injunctive relief, Plaintiff has failed to advance any argument in the alternative that she is entitled to such relief. Consequently, Plaintiff has failed to demonstrate that the Court has authority to issue the requested relief altering the status quo during the pendency of her administrative proceedings. Plaintiff's Motion for a Preliminary Injunction fails for this reason alone.
As discussed above, the Court's authority to issue the requested mandatory injunctive relief is far from clear, given the particular circumstances of this case. Nonetheless, even if the Court were to find that it has the authority to order Defendants to permit Plaintiff to work from Los Angeles during the pendency of the administrative proceedings below, the D.C. Circuit has made clear that the Court may do so
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. Off. 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, both the Supreme Court and the Court of Appeals for the D.C. Circuit have emphasized that a plaintiff must show at least
"[T]he basis of injunctive relief in federal courts has always been irreparable harm and the inadequacy of legal remedies." Sampson, 415 U.S. at 88, 94 S.Ct. 937 (internal quotation marks omitted). As such, a plaintiff "seeking preliminary relief [must] demonstrate that irreparable injury is likely in the absence of an injunction." Winter, 129 S.Ct. at 375; see also CityFed, 58 F.3d at 747 (holding that a plaintiff must demonstrate "`at least some injury' for a preliminary injunction to issue... [because] `the basis of injunctive relief in federal courts has always been irreparable harm ....'" (quoting Sampson, 415 U.S. at 88, 94 S.Ct. 937)). The alleged injury must be "both certain and great," such that "there is a `clear and present' need for equitable relief to prevent irreparable harm." Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C.Cir.1985) (internal quotation marks omitted). As the D.C. Circuit has emphasized,
Chaplaincy of Full Gospel Churches, 454 F.3d at 297-98 (emphasis in original) (internal quotation marks omitted).
Here, in support of her assertion that she will suffer irreparable harm absent injunctive relief, Plaintiff advances two arguments. First, Plaintiff argues that she is suffering financial difficulties as
Neither of these arguments is sufficient to demonstrate irreparable injury in this case. At bottom, Plaintiff's claims of irreparable injury are purely economic in nature. Although Plaintiff argues that her health condition may be worsened if she is forced to return to Washington, D.C., the issue now before the Court is whether Plaintiff is entitled to an order mandating that Defendants permit Plaintiff to work from Los Angeles during the pendency of the administrative proceedings below. The Court is not being asked to—and will never be asked to—affirmatively order Plaintiff to return to her duty station in Washington, D.C. Contrary to Plaintiff's suggestion, denial of Plaintiff's motion for a preliminary injunction is
"It is [] well settled that economic loss does not, in and of itself, constitute irreparable harm." Wisconsin Gas Co., 758 F.2d at 674. Loss of income, even for an indefinite period of time, does not generally afford a basis for a finding of irreparable injury. Sampson, 415 U.S. at 89, 94 S.Ct. 937; see also id. at 91-92, 94 S.Ct. 937 ("loss of income ... falls far short of the type of irreparable injury which is a necessary predicate to the issuance of a temporary injunction"). This is true even if the plaintiff has insufficient savings. See id. at 92, n. 68, 94 S.Ct. 937 ("an insufficiency of savings ... will not support a finding of irreparable injury, however severely
Although the Supreme Court recognized in Sampson that "cases may arise in which the circumstances surrounding an employee's discharge, together with the resultant effect on the employee, may so far depart from the normal situation that irreparable injury might be found," Plaintiff has not demonstrated that this is such an "extraordinary case." 415 U.S. at 92, n. 68, 94 S.Ct. 937. As an initial matter, Plaintiff in this case has not been terminated. Thus, unlike a discharged employee, she retains the ability to resume earning a salary if and when she believes she is able to return to work—either at PNN's D.C. office or at the offered position at the Central News Division in D.C. Similarly, unlike a terminated employee, Plaintiff retains access to her health benefits while she is on leave without pay status. Although some courts have found that irreparable harm may exist if an employee is able to demonstrate that, absent an injunction, she will lose access to health care benefits and critically needed medical treatment upon discharge, cf. Penland v. Mabus, 643 F.Supp.2d 14, 22 (D.D.C.2009) (denying injunctive relief where plaintiff did not demonstrate "that she would be denied access to critical medical care without injunctive relief") (citing cases), that is not the case at hand.
Plaintiff's general assertion that she is "bankrupt although [she has] not filed for bankruptcy," Second Sataki Decl. ¶ 9, is also insufficient to demonstrate irreparable harm. As indicated above, the Supreme Court has made clear that a lack of savings, an "external factor[] common to most discharged employees and not attributable to any unusual actions relating to the discharge itself, will not support a finding of irreparable injury." Sampson, 415 U.S. at 92, n. 68, 94 S.Ct. 937. Although some courts have indicated that irreparable harm may nonetheless exist where an individual has shown that bankruptcy is both certain and imminent, Plaintiff's general allegations in this case fall well below the showing required to satisfy her burden on this point. See, e.g., Ahmad
Here, Plaintiff has not demonstrated that she has no personal or family resources. Nor has Plaintiff shown that she is unable to obtain a private loan or funds through other alternative sources. For example, as Defendants note, Plaintiff could have sought to recover lost wages through the Federal Employees' Compensation Act, but declined to do so to preserve her present damage claims. See Defs.' Supp. Surreply at 3-4; Pl.'s Supp. Resp. to Defs.' Supp. Surreply at 9 (acknowledging she chose not to pursue workers' compensation benefits). Similarly, the record indicates that Plaintiff has a Thrift Savings Plan account, see Second Grace Decl. ¶ 7, from which she could make withdrawals to assist her during the pendency of the administrative proceedings, a point that Plaintiff has not disputed. See Defs.' Supp. Surreply at 4-5; see generally Pl.'s Supp. Resp. to Defs.' Supp. Surreply. In addition, according to Plaintiff's own admissions, she is fully capable of performing gainful activity so long as she remains in Los Angeles under her doctors' care. Second Sataki Decl. ¶ 15. Although Plaintiff alleges that she is unable to return to work in the Washington, D.C. office of PNN, she has not demonstrated that she is permanently unable to return to work and in fact argues that she is able to do so now if she is able to work remotely from Los Angeles. Furthermore, Plaintiff has not argued, nor is there any support for the position, that she will be unable to receive full compensation for any alleged monetary losses at the conclusion of this lawsuit, in the event she is successful with her claims. The federal government has sufficient resources to satisfy any monetary judgment, and there is no indication that any of the Individual Defendants are or will become financially insolvent. Nor has Plaintiff asserted that her damages are of such a nature that any monetary loss will be difficult to calculate.
Put simply, Plaintiff's general claims of financial distress, absent specific evidence that she has exhausted all alternative sources of income and/or financial assistance, are insufficient to support a finding of irreparable harm on the present record. For this reason alone, Plaintiff's Motion for a Preliminary Injunction may be denied. CityFed, 58 F.3d at 747 (a finding of no irreparable injury alone is sufficient to deny a request for a preliminary injunction without the need to reach other factors). Nonetheless, the Court shall turn to briefly consider the remaining factors in this case, which further counsel against issuance of the requested preliminary injunction.
Key to Plaintiff's request for a preliminary injunction, the Court finds that
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)). To ultimately succeed on her claim under the Rehabilitation Act, Plaintiff must show that she is disabled. Desmond v. Mukasey, 530 F.3d 944, 952-53 (D.C.Cir.2008). In this case, even accepting as true all statements contained in the medical documentation submitted by Plaintiff in support of her Motion for a Preliminary Injunction, Plaintiff cannot show that she is disabled. First, as the Court previously observed in denying Plaintiff's request for a temporary restraining order, "[g]iven Plaintiff's assertion that she can successfully perform the functions of her job in Los Angeles (i.e., outside the allegedly negative atmosphere currently existing at the Washington, D.C. office of PNN), it is unlikely that Plaintiff can demonstrate that she is disabled under the Act." Sataki, 733 F.Supp.2d at 13, 2010 WL 2195799, at *9. Precedent in this Circuit makes clear that an individual is not disabled under the Rehabilitation Act if "the impact of an impairment can be eliminated by changing the address at which an individual works, [such] that [the] impairment is neither permanent nor long term." Haynes v. Williams, 392 F.3d 478, 483 (D.C.Cir.2004); see also Nurriddin v. Bolden, 674 F.Supp.2d 64, 84-85 (D.D.C.2009) (finding that plaintiff was not disabled where he indicated that he could successfully perform the duties of his job in another location); Rand v. Geithner, 609 F.Supp.2d 97, 103-04 (D.D.C.2009) (finding impairment that only limited plaintiff's ability to work in a specific location was not a disability within the meaning of the Rehabilitation Act); cf. Battle v. Mineta, 387 F.Supp.2d 4, 9 (D.D.C.2005) (rejecting claim that an individual was disabled where alleged disability prevented him from working only with a discrete group of former supervisors), aff'd 2006 WL 3093811 (D.C.Cir.2006) (per curiam) (if "the impact of [plaintiff's] impairments could have been eliminated by assigning him to a different supervisor, he was not substantially limited").
The Court is unpersuaded by Plaintiff's attempts to distinguish her situation from the Circuit case law cited above holding that a disability does not exist if the impairments
Second, Plaintiff is unlikely to succeed in demonstrating that Defendants failed to reasonably accommodate her alleged disability. Section 501(b) of the Rehabilitation Act requires "federal agencies to reasonably accommodate the disabilities of otherwise qualified employees unless doing so would cause an undue hardship to the agency." Porter v. Jackson, 668 F.Supp.2d 222, 233 (D.D.C.2009). A reasonable accommodation is defined as "[m]odifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position." 29 C.F.R. § 1630.2(o)(1)(ii). In order to determine the appropriate reasonable accommodation, the agency should "initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation," which "process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations." Id. § 1630.2(o)(3). "[A]n employer is not required to provide an employee that accommodation [s]he requests or prefers; the employer need only provide some reasonable accommodation." Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1305 (D.C.Cir.1998) (citations omitted). Nor is an employer "obligated to `bump' another employee in order to create a vacancy for the disabled employee" or "create a new position for the disabled
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 work remotely from Los Angeles, the evidence in the present record indicates that this request is neither a reasonable accommodation under Rehabilitation Act case law nor consistent with her own description of her present disabilities. For example, Plaintiff alleges that she simply seeks permission to, in effect, telecommute from Los Angeles. This characterization of the requested relief is overly simplistic and unsupported by the record. 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 relating to "News and Views" and "News Brief" from the VOA Office in Los Angeles, a fact Plaintiff has not disputed. Despite Plaintiff's claims to the contrary, she asks BBG to, in effect, accommodate her alleged disabilities by creating a new position, on either a temporary or permanent basis, that operates out of Los Angeles and that is devoted solely to creating independent packages. Plaintiff has not shown that this is a reasonable accommodation.
Plaintiff also contends that the requested accommodation is necessary because "[j]ust hearing the names of defendants sends chills down [her] spine and feelings of resentment, embarrassment, helplessness, and sadness overwhelm[ ] [her] to the point that [she] withdraw[s] from whatever activity [she is] engaged in," such that she "cannot perform the normal activities of life," including those "related to work." Third Sataki Decl. ¶ 13. In other words, Plaintiff cannot work near or with the Individual Defendants. Yet Plaintiff proposes doing just that, albeit from Los Angeles. There is no evidence in the record that she would be able to perform her present job duties as an International Broadcaster for PNN—whether remotely from Los Angeles or elsewhere—without having any contact whatsoever with PNN management in Washington, D.C., as she appears to indicate is necessary. To the extent Plaintiff asserts that she should be permitted to perform her work for PNN from Los Angeles without having any communication or interaction with PNN management, such a requested accommodation is clearly unreasonable. For these reasons, Plaintiff has not shown a substantial likelihood of success on the merits of her Rehabilitation Claim, which underlies her request for assignment to the Los Angeles office of the VOA.
It is a closer question as to whether Plaintiff has demonstrated a substantial likelihood of success as to her administrative claims under Title VII. Without question, there are material disputes of fact between the parties as to whether the allegedly harassing and retaliatory conduct occurred as described by Plaintiff.
Moreover, even assuming that Plaintiff had shown that she was likely to succeed on her Title VII claims, Plaintiff's requested relief goes well beyond the relief that a complainant may typically be awarded in a Title VII action. Plaintiff has pointed to no case law or other legal authority indicating that a court has the authority to order a federal agency to detail an employee (either temporarily or permanently) to another state, where the agency has no vacant positions, in order to redress alleged discrimination, retaliation or harassment. Indeed, Plaintiff has not even argued as much, as she has consistently maintained that she is entitled to the requested relief—not because it is necessary to remedy any alleged Title VII violations—but because it is a reasonable accommodation for her alleged disabilities under the Rehabilitation Act.
Finally, although Plaintiff now argues that her constitutional claims, as asserted in her Amended Complaint, are not relevant to the Court's consideration of her Motion for a Preliminary Injunction, the Court in an abundance of caution notes that Plaintiff's claims fail for the reasons previously set forth in the Court's June 1, 2010 Memorandum Opinion, which is fully incorporated herein. See Sataki, 733 F.Supp.2d at 14-16, 2010 WL 2195799, at *11-12. 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. Id. at 15, at *11. Second, Plaintiff cannot succeed on
The Supreme Court has emphasized the importance of granting the federal government "the widest possible latitude in the dispatch of its own affairs." Sampson, 415 U.S. at 83, 94 S.Ct. 937. Regardless of how Plaintiff's request for injunctive relief is framed, she asks this Court to intervene in an ongoing personnel dispute between an employee and the federal government and to impose her preferred resolution on the agency before the dispute has been conclusively resolved and long before it is ripe for judicial review. Given the particular circumstances of this case and the well established principle that courts should be reluctant to interfere "in the sensitive areas of federal employee relations," Andrade v. Lauer, 729 F.2d 1475, 1489-90 (D.C.Cir.1984), the Court finds that these final factors also counsel against granting the requested relief at this time. Accordingly, Plaintiff's [11] Motion for a Preliminary Injunction shall be DENIED.
The Court turns finally to Plaintiff's Motion for Reconsideration of the Court's June 1, 2010 Memorandum Opinion and Order denying Plaintiff's request for a temporary restraining order. For the same reasons outlined above, the Court also finds that Plaintiff's Motion for Reconsideration must be denied as well. "`A Rule 59(e) motion is discretionary and need not be granted unless the district court finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'" Ciralsky v. Cent. Intelligence Agency, 355 F.3d 661, 671 (D.C.Cir.2004) (quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C.Cir.1996)). Quite clearly, there has been no intervening change of controlling law or discovery of new evidence nor is there a need to correct a clear error or prevent manifest injustice. As Plaintiff has failed to demonstrate that she is entitled to the requested interim injunctive relief, the Court's decision denying her request for a temporary restraining order was not in error. Plaintiff's [41] Motion
For the reasons set forth above, Plaintiff's [11] Motion for a Preliminary Motion and her [41] Motion for Reconsideration are both DENIED. An appropriate Order accompanies this Memorandum Opinion.
