United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS United States District Judge
This matter is before the Court on Plaintiffs’ Motion for a Preliminary Injunction. Dkt. 41. The underlying lawsuit alleges that Defendant Broadcasting Board of Governors (“Board”) has engaged over the course of several years in systematic discrimination on the basis of age and nationality against five longstanding employees. All of the Plaintiffs are at least 60 years old, have been employed by the Board’s Voice of America (“VOA”) broadcasting service for between 14 and 33 years, and are naturalized United States citizens of Afghani descent. All work in VOA’s South Asia Division, Afghan Division (“Pashto Service”) as international broadcasters, although they serve in different capacities. Among other things, they allege that the current editing manager of the Pashto Service, Mohammad Ibrahim Nasar, has created schedules that devalue senior staff and replace them with junior employees, demoted senior staff to less desirable assignments, and failed to provide senior staff with adequate training for their new roles. The Board has moved to dismiss the complaint, or, in the alternative, for summary judgment, arguing that Plaintiffs failed to timely exhaust their administrative remedies and that the amended complaint fails to state a claim upon which relief can be granted.
After the Board’s motion was fully briefed, Plaintiffs filed the present motion, which seeks a preliminary injunction blocking implementation of recent schedule changes affecting two of the five Plaintiffs: Mohammad Mohmand and Zeba Khadem. In particular, Mohmand objects to his assignment to do production work four days a week, and Khadem objects to Ibrahim Nasar’s failure to assign her to a talk show. They contend that the present schedule was adopted in retaliation for their complaint and that they will suffer irreparable injury unless the Court grants temporary relief. The Board opposes Plaintiffs’ motion, challenging both the merits of Plaintiffs’ retaliation claim and the need for preliminary relief.
As explained below, the Court concludes that Plaintiffs have failed to meet their substantial burden of demonstrating that a preliminary injunction is warranted. Plaintiffs’ motion is, accordingly, DENIED.
Plaintiffs Mohmmed Mohmand and Zeba Khadem are longtime employees of Voice of America, a government-operated broadcasting service governed by the Board. Mohmand is 68 years old, and Khadem is 64. Dkt. 25 at 3-4 (Am. Compl. ¶ 8). Both are naturalized U.S. citizens of Afghani descent who have worked at VOA for more than 30 years. Id. (Am. Compl. ¶¶ 6-8). Along with three of their co-workers, Mohmand and Khadem filed a lengthy complaint in this Court in May 2014, asserting 18 counts and covering over 200 pages and 800 numbered paragraphs. See Dkt. 1. On the Board’s motion, the Court dismissed nine of those counts for failure to exhaust administrative remedies under the Federal Tort Claims Act and struck the remainder of the complaint for failure to comply with Federal Rules of Civil Procedure 8 and 12(f), which require that a complaint set forth “a short and plain statement of the claim.” See Dkt. 24. The five plaintiffs then filed an amended complaint that pared their claims in half, now asserting nine counts alleging workplace discrimination on the basis of their nationality, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and on the basis of their age, in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq. See Dkt. 25. Plaintiffs’ claims allege discrete acts of discrimination, the creation of a hostile work environment, and retaliation based on Plaintiffs’ complaints regarding these work conditions. Id.
The amended complaint includes a litany of allegations of purportedly discriminatory conduct, including “creating unfair and biased schedules, ” “removing Plaintiffs from positions [as] shift editor[s], ” “taking away their shows, ” “assigning them tasks for which they ha[ve] not been trained, ” refusing “to provide them with adequate training, ” and “treating younger staff more favorably.” Dkt. 25 at 5-6 (Am. Compl. ¶ 14). According to Plaintiffs, these acts created a hostile workplace and were intended to pressure Plaintiffs to resign. Id. at 7 (Am. Compl. ¶ 17).
After Plaintiffs filed their amended complaint, the Board moved to dismiss, or, in the alternative, for summary judgment. Dkt. 30. That motion posits that Plaintiffs waited too long to initiate the administrative Equal Employment Opportunity (“EEO”) process and that, in any event, the amended complaint fails to state a claim upon which relief may be granted. Id. After the Board’s motion was fully briefed, Plaintiffs filed the present motion for a preliminary injunction, seeking an order prohibiting the Board from implementing-or, more accurately, from continuing to implement-changes to Mohmand and Khadem’s schedules. See Dkt. 41. According to Plaintiffs, the new schedule assigns Mohmand to production duties four days a week, which constitutes a demotion from his prior role as “shift editor.” Dkt. 43 at 2. Plaintiffs further contend that Mohmand has not been trained to perform production duties and that his new assignment is causing him anxiety and will otherwise damage his health, his reputation, and the quality of shows that he is forced to produce. Id. at 4-6. With respect to Khadem’s schedule, Plaintiffs contend that the new schedule deprives her of a talk show and “[s]ilenc[es] her voice on the air as a form of retaliation for her complaint.” Dkt. 41 at 4. Although Plaintiffs conceded at oral argument that Khadem has not had her own talk show since 2010, they nonetheless contend that if her talk show is kept “off the air for an even longer period of time, she will lose her audience, ” “her contacts, and “her sources as well as the trust that her sources have in her as a Voice of America journalist, ” Dkt. 43 at 5. As reflected in the schedule submitted by both parties, although not given a talk show, Khadem is scheduled to broadcast the news several times a week. Dkt. 41-2 at 7-8.
The Court convened a status conference and argument shortly after Plaintiffs moved for a preliminary injunction. At that conference, Plaintiffs represented that the new schedule was already in effect. In response to a question from the Court, moreover, Plaintiffs declined an evidentiary hearing on the motion, opting instead simply to file a reply. After discussing the need for the movant to make a specific showing of irreparable harm supported by the evidence, the Court offered Plaintiffs the opportunity to make a supplemental filing and offered the Board an opportunity to do so as well. In response, Plaintiffs filed a reply supported by additional declarations, see Dkt. 43, and the Board filed a supplemental memorandum in opposition to Plaintiffs’ motion for preliminary injunction, see Dkt. 44. Following submission of these materials, the Court afforded the parties an opportunity for further argument on Plaintiffs’ motion for a preliminary injunction, Dkt. 41, along with argument on the Board’s pending motion to dismiss or, in the alternative, for summary judgment, Dkt. 30. At that hearing, the Court indicated that it would deny Plaintiffs’ motion for a preliminary injunction and that the instant opinion would be forthcoming.
“A preliminary injunction is an extraordinary remedy that should be granted only when the party seeking the relief, by a clear showing, carries the burden of persuasion.” Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004). To prevail, a party seeking a preliminary injunction must show (1) “that he is likely to succeed on the merits, ” (2) “that he is likely to suffer irreparable harm in the absence of preliminary relief, ” (3) “that the balance of equities tips in his favor, ” and (4) “that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Before Winter, courts in this Circuit evaluated these factors on a “sliding scale.” Davenport v. Int’l Bhd. of Teamsters, 166 F.3d 356, 360-61 (D.C. Cir. 1999). Under that approach, a strong showing on one factor could compensate for a weak showing on another. Id. Thus, for example, “a very strong showing of irreparable harm” and a showing that “there is no substantial harm to the non-movant” might permit an injunction even upon “a correspondingly” less substantial showing of a “likelihood of success” on the merits. Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009). Or, “[a]lternatively, if substantial harm to the nonmovant is very high and the showing of irreparable harm to the movant very low, the movant must demonstrate a much greater likelihood of success.” Id.
In Winter, the Supreme Court rejected a rule applied in the Ninth Circuit that permitted a movant to obtain a preliminary injunction based on a mere “possibility of irreparable harm, ” as long as the movant could “demonstrate a strong likelihood of prevailing on the merits.” 555 U.S. at 21 (internal quotation marks omitted). The Supreme Court explained that “the Ninth Circuit’s ‘possibility’ standard is too lenient” and failed to give sufficient weight to the “extraordinary” nature of preliminary relief or to the Supreme Court’s “frequent” admonition that the proponent of preliminary relief must make a clear showing “that irreparable injury is likely in the absence of an injunction.” Id. at 22 (emphasis in original). Following Winter, the D.C. Circuit has expressed some doubt about the continuing viability of the sliding scale test, but has yet to issue a definitive ruling setting the test aside. See Davis, 571 F.3d at 1292; Sherley v. Sebelius, 644 F.3d 388, 392-93 (D.C. Cir. 2011). In Sherley, for instance, the Court read “Winter at least to suggest if not to hold that a likelihood of success is an independent, freestanding requirement for a preliminary injunction.” 644 F.3d at 393 (internal quotation marks omitted). And in Davis, two judges concurred, explaining in dicta that “under the Supreme Court’s precedents, a movant cannot obtain a preliminary injunction without showing both a likelihood of success and a likelihood of irreparable harm, among other things.” Davis, 571 F.3d at 1296 (Kavanaugh, J., joined by Henderson, J., concurring). But, while strongly signaling the demise of the sliding scale test, the D.C. Circuit has been clear that it has yet to resolve the issue. See Id. at 1292 (majority opinion). As a result, most district courts in this Circuit have continued to apply the sliding scale test out of an abundance of caution, at least in cases where the movant cannot satisfy even the less demanding standard. See, e.g., Jack’s Canoes & Kayaks, LLC v. Nat’l Park Serv., 933 F.Supp.2d 58, 76 (D.D.C. 2013).
The Court will do the same here, but with one proviso: It is clear from Winter that a mere “possibility” of irreparable harm will not suffice. Winter, 555 U.S. at 22. Rather, a showing that irreparable injury is “likely” is the sine qua non for obtaining a preliminary injunction-it is what justifies the extraordinary remedy of granting relief before the parties have had the opportunity fully to develop the evidence and fully to present their respective cases. See Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (“A movant’s failure to show any irreparable harm is therefore grounds for refusing to issue a preliminary injunction, even if the other three factors entering the calculus merit such relief.”); Texas Children’s Hosp. v. Burwell, 76 F.Supp.3d 224, 241-42 (D.D.C. 2014); Trudeau v. FTC, 384 F.Supp.2d 281, 296 (D.D.C. 2005). Thus, where a party seeking a preliminary injunction fails to make the required showing of irreparable injury, the matter is settled, and the Court must deny the motion. As explained below, that principle is dispositive here. Plaintiffs have failed to demonstrate that Mohmand or Khadem are likely to suffer irreparable injury in the absence of injunctive ...