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Sataki v. Broadcasting Board of Governors

June 1, 2010

ELHAM SATAKI, PLAINTIFF,
v.
BROADCASTING BOARD OF GOVERNORS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

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.*fn1 Plaintiff's claims in this action are largely premised upon her allegations, asserted in the related civil action Sataki v. Falahati, Civ. Act. No. 10-466 (CKK), that she was, inter alia, sexually harassed and assaulted by a co-worker at BBG. Plaintiff alleges in the present action that Defendants unlawfully facilitated the alleged sexual harassment, actively attempted to cover up the incidents of harassment, interfered with the investigation of her administrative complaint, and retaliated against her for complaining about her co-worker's harassing conduct as well as for criticizing BBG's management and mission. Plaintiff further alleges that, as a result of these actions, she has suffered both mental and physical injuries and that BBG and the official capacity Individual Defendants have failed to provide her with a reasonable accommodation for these alleged disabilities.

On May 20, 2010, Plaintiff filed the now pending Motion for a Temporary Restraining Order.*fn2 On May 24, 2010, prior to resolution of Plaintiff's Motion, Defendants filed a [10] Notice of Related Case, advising Judge Richard W. Roberts, to whom this case was previously assigned, that this action was related to a civil action pending before the undersigned, Sataki v. Falahati, Civ. Act. No. 10-466 (CKK). The case was subsequently reassigned to this Court by the Calendar Committee on May 25, 2010, see Docket No. [29] (Reassignment of Civil Case), and the Court held an on-the-record conference call with counsel for all parties that same day to discuss Plaintiff's Motion. Plaintiff indicated at that time through her counsel that she wished to proceed directly to consideration of her request for a temporary restraining order. Accordingly, the Court held in abeyance Plaintiff's request for a preliminary injunction 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, and Plaintiff filed her Reply on May 28, 2010. Upon consideration of the parties' filings, the relevant case law and statutory provisions as well as the record of this case as a whole, the Court shall DENY Plaintiff's Motion for a Temporary Restraining. Ultimately, although the Court understands Plaintiff's present health concerns, the Court finds that Plaintiff has not demonstrated on the present record that she is legally entitled to the relief she now seeks. Absent such a showing, the Court cannot grant Plaintiff's request for a temporary restraining order.*fn3

I. BACKGROUND

A. Factual Background

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.*fn4 Importantly, while Plaintiff's job duties occasionally require her to perform her work duties in the field, the record indicates that Plaintiff has always been assigned to the Washington, D.C. duty station; there is no indication that Plaintiff has been detailed to any other office location nor is there any evidence that she has been permitted to work from another location (e.g., through a telecommuting arrangement, etc.) for any extended period of time.

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, two of whom are contract VJs and the third of whom is a web editor, who 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 not currently have any full time employees in Los Angeles nor does it perform any on-air work in Los Angeles. Id. ¶ 8.

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.*fn5

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 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.*fn6 Plaintiff was also found to be ineligible for administrative leave with pay as "[i]t is not the agency's policy or practice . . . to place administrative employees on administrative leave based solely on unproven allegations of sexual harassment." Grace Decl. ¶ 6.*fn7 Plaintiff thereafter applied for BBG's donated leave program and was placed in the program retroactive to February 28, 2010. Anderson Decl. ¶ 6. As of May 25, 2010, Plaintiff had received 114 hours of donated leave, which was given to her for pay periods 5, 6, 7, 8, 9, and 10. Id. Plaintiff has therefore continued to obtain some pay - albeit not her full salary - for the time she has been out of the office. Id.

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 with Plaintiff, through her counsel, to ensure that Plaintiff would not have contact with those accused of the unlawful conduct. Id. ¶ 4.

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 Decl., 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. ΒΆ 4. Furthermore, Plaintiff's alleged ...


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