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Sataki v. Broadcasting Board of Governors

July 7, 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

Presently pending before the Court are Plaintiff Elham Sataki's [11] Motion for a Preliminary Injunction*fn1 and Plaintiff's [41] Motion for Reconsideration of this Court's order denying her request for a temporary restraining order. This case stems from allegations that Plaintiff was sexually harassed and assaulted by a co-worker at the Persian News Network ("PNN") and that her employer, the Broadcasting Board of Governors ("BBG"),*fn2 as well as several members and employees of the BBG, 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. As a result of this alleged conduct, Plaintiff claims that she has suffered both mental and physical injuries and is presently unable to continue working near or around those responsible for the alleged harassment and retaliation. Consequently, Plaintiff has not returned to work since approximately February of 2010.

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.*fn3 Plaintiff seeks a final award of monetary damages in the form of all back pay and benefits owed to her for the period of her absence from work as well as punitive damages and a permanent injunction ordering BBG to permit Plaintiff to perform her work from Los Angeles, California.

Approximately one month after filing the present lawsuit, Plaintiff amended her complaint in this matter to add a claim for interim injunctive relief pursuant to the D.C. Circuit's decision in Wagner v. Taylor, 836 F.2d 566 (D.C. Cir. 1987). As set forth therein, Plaintiff asks the Court to issue interim injunctive relief awarding her monetary damages in the form of all back pay and benefits owed to her for the period of her absence from work and a temporary restraining order and/or preliminary injunction requiring that BBG permit Plaintiff to work from Los Angeles, California, during the pendency of her administrative and legal proceedings. Such relief is nearly identical to the ultimate relief requested in this lawsuit and is at the heart of the motions now pending before the Court, in which Plaintiff seeks issuance of a preliminary injunction and also asks the Court to reconsider its prior decision denying her motion for a temporary restraining order. The Court has thoroughly considered Plaintiff's pending motions and the parties' respective briefing, the relevant case law and statutory authority, and the record of this case as a whole. Despite Plaintiff's repeated claims that she is seeking only interim injunctive relief to preserve the status quo, it is patently clear that Plaintiff in fact seeks an order affirmatively altering the status quo during the pendency of the administrative proceedings below. The Court's jurisdiction to issue such relief is far from clear. Well-established precedent further counsels that this Court should be reluctant to interfere with the personnel decisions of the federal government. Nonetheless, even if the Court were to conclude that it had the authority to issue the relief sought, Plaintiff has failed to demonstrate that the requested relief is either appropriate or warranted in this case. Accordingly, for the reasons set forth below, the Court shall DENY Plaintiff's [11] Motion for a Preliminary Injunction and shall also DENY Plaintiff's [41] Motion for Reconsideration.

I. BACKGROUND

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.

A. Factual Background

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.

1. Plaintiff's Work History at BBG

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 station is in Washington, D.C. First 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 remotely from another location 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 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 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 this 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. Similarly, there is no evidence in the record indicating that any full-time PNN employee assigned to PNN's Washington, D.C. office has ever been permitted to work remotely from VOA's Los Angeles office for an extended period of time.*fn5

2. Plaintiff's Allegations of Sexual Harassment and Retaliation

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.*fn6 Plaintiff asserts that as a result of these verbal attacks and the associated stress, she had to be rushed to the hospital emergency room on or around September 8, 2008, and was subsequently diagnosed with severe upper gastrointestinal bleeding and migraines. Id.

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, PNN is "mismanaged" and displays a "pro Islamic Regime" and "intentionally propagate[s] anti-American propaganda." Id. Plaintiff asserts that, "[a]s a result of [her] personal beliefs, and what is perceived to be her having 'blown the whistle' on Defendants for mismanaging and misusing VOA/PNN to promote anti-American and anti-Iranian freedom movement rhetoric, Defendants... sought to retaliate against Plaintiff [] when she raised with them the [allegations of] sexual harassment." Id. at 5-6. Specifically, Plaintiff asserts in her Amended Complaint that Defendants have: (a) "berat[ed] and disparag[ed] Plaintiff's [] Farsi language capability;" (b) "refuse[d] to grant Plaintiff [] advance sick leave;" (c) "relegate[d] Plaintiff [] to menial chores;" (d) "creat[ed] and spread[] false rumors about Plaintiff's [] alleged personal life before she joined VOA/PNN;" (e) "disparage[d] Plaintiff's [] reputation and ability by telling her and others at VOA/PNN that she only got her position because she is beautiful;" (f) "refus[ed] to grant Plaintiff [] a 'reasonable medical accommodation' by allowing her to be detailed to the Los Angeles office of VOA/PNN;" (g) "provided false information to the Justice Department" concerning Plaintiff's related lawsuit, Sataki v. Falahati, 10cv466 (CKK), and "commenced a fraudulent internal investigation of the sexual harassment and retaliation charges;" (h) "illegally withheld payment of Plaintiff's [] salary and other benefits;" (i) "unlawfully with[held] Plaintiff's [] personnel file;" and (j) "threat[ened] Plaintiff with mutilation of her vaginal areas, severe bodily injury and death and smearing her name and reputation on pornographic internet websites." Id. at 8-11. Defendants dispute Plaintiff's allegations. Given the Court's resolution of Plaintiff's motions, as set forth more fully below, it need not and does not resolve the ultimate merits of Plaintiff's allegations at this time.

3. Plaintiff's Alleged Disabilities Resulting from Defendants' Actions

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 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; see also Pl.'s Mot., Ex. 9 (May 12, 2010 Letter from Donna S. Grace, Director of the Office of Human Resources, to Plaintiff's counsel). Plaintiff declined the offered accommodation.

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.*fn7 Plaintiff thereafter applied for BBG's donated leave program and was placed in the program retroactive to February 28, 2010. Id. ¶ 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. Altogether, between pay periods 5 through 10 (February 28, 2010 through May 21, 2010), Plaintiff was paid for approximately 218.25 of the 274.25 hours in those pay periods through the combined use of annual leave, advanced leave, and accrued annual and sick leave. Defs.' Supp. Surreply, Docket No. [52], Ex. 13 (Declaration of Joann Lusby), ¶ 2.

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."*fn8 Id. She further indicated that "[a]lthough the depressive symptoms are still present, they have subsided enough that [Plaintiff] would be able to carry out her duties," assuming that Plaintiff could be placed in "a work environment in which she would not be in the presence of the individual who harassed her in the past." Id. Finally, Dr. Aviera concluded that, "[i]t is essential in my professional opinion that [Plaintiff] would continue to live in Los Angeles." Id.

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 ...


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