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Jangjoo v. Sieg

United States District Court, District of Columbia

July 13, 2018

SOHEILA JANGJOO, Plaintiff,
v.
SETAREH DERAKHSHESH SIEG, Defendant.

          MEMORANDUM OPINION

          TREVOR N. MCFADDEN, U.S.D.J.

         Plaintiff Soheila Jangjoo, a former vendor for the Broadcasting Board of Governors (“BBG”), seeks injunctive and monetary relief from Setareh Sieg, Director of the BBG component Persian News Network (“PNN”). Am. Compl. ¶¶ 13, 16, 141-50. Ms. Jangjoo alleges that Ms. Sieg abridged her First Amendment right to free speech by retaliatorily reducing Ms. Jangjoo's work assignments after Ms. Jangjoo signed a petition protesting the removal of the host of a popular television program on PNN. Id. ¶¶ 19-23, 39-40, 117-18. Ms. Jangjoo also alleges that Ms. Sieg barred her from entering the BBG building in violation of the Fifth Amendment's due process clause. Id. ¶ 130. Ms. Sieg, who is being sued in her individual capacity, seeks summary judgment for the First Amendment claim on the bases that relief is unavailable to Ms. Jangjoo under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and that even if it were, Ms. Jangjoo's speech is not protected by the First Amendment, is foreclosed by qualified immunity, and is unrelated to the reduction of her assignments. Mem. of P. & A. in Supp. of Def.'s Mot. for Summ. J. (“Mot. for Summ. J.”) 1-2, ECF No. 35-1. As to Ms. Jangjoo's Fifth Amendment claim, Ms. Sieg argues that, in addition to her legal arguments, she was not involved in barring Ms. Jangjoo from the premises. Id. 40-42. I find that Bivens provides no remedy for Ms. Sieg's alleged constitutional violations and that no genuine issue of material fact exists about whether the reduction in work assignments related to the petition and whether Ms. Sieg improperly barred Ms Jangjoo from the BBG premises. Ms. Sieg's motion will be granted.

         I. BACKGROUND

         A. The BBG and Ms. Jangjoo's Professional Performance

         The BBG is a federal agency that oversees the U.S. Government's non-military international broadcasting with a mission to engage a global audience to support freedom and democracy. Am. Compl. ¶¶ 15, 17.[1] One of its networks, Voice of America (“VOA”), produces news, information, and cultural programs in more than 45 languages, including Persian. Id. ¶ 17. The Voice of America Persian Service (“PNN”), focuses on the people of Iran and on Persian speakers. Id. One of PNN's television shows, which Ms. Jangjoo describes as one of PNN's most popular programs, is a talk show called Ofogh, whose host and managing editor was Siamak Dehghanpour. Id. ¶¶ 19-20.

         Ms. Jangjoo was a contracted Chyron/Teleprompter Operator for PNN between April 2012 and November 2015 and provided services for shows such as Rooye Khat and Khiabane Zendegi. Id. ¶¶ 30-31, 35; Def.'s Statement of Material Facts (“SOMF”) ¶ 1, ECF No. 35-2. The parties disagree over whether she was a contractor or an employee, but all agree that she had a contract with BBG, was retained on an “as needed” basis, and was not guaranteed any minimum number of hours or assignments in any particular period. Id. ¶ 2; Pl.'s Resp. to Def.'s SOMF ¶ 2, ECF No. 36-2 (disputing only the description of Ms. Jangjoo as a contractor). Ms. Jangjoo alleges that for most of her tenure at PNN, she received 18 assignments a month, each lasting about an eight-hour workday. Am. Compl. ¶ 34.

         The parties disagree over how well Ms. Jangjoo performed in both of her roles at PNN. Nicholas Kalhor, an Executive Producer and Ms. Jangjoo's first-line supervisor, testified that he found her “unwilling to perform the essential duties of her job, ” could not “operate the chyron and teleprompter properly, ” was “frequently insubordinate and unprofessional, ” and that her “attendance was unreliable” and she “consistently displayed a poor work ethic and an inability to take direction and constructive feedback.” Mot. for Summ. J. Ex. 23 (“Decl. of Nicholas Kalhor”) ¶¶ 6-7, ECF No. 35-5. After speaking to Ms. Jangjoo several times about her performance and seeing no improvement, Mr. Kahlor recommended in late February 2015 to the Agency Contract Officer, Cheryl Nixon that Ms. Jangjoo be placed on a two-week probationary period. Id. ¶ 7. Ms. Jangjoo's former first-line supervisor, Kaveh Adib, also agreed with the recommendation “as he experienced the same issues when she was under his supervision.” Id. at 4.

         Following these recommendations, the Office of Contracts reportedly spoke with Ms. Jangjoo, who agreed to improve her performance. Id. ¶ 8. Ms. Jangjoo disputes these characterizations because “there was a group of employees who wanted to get rid of [Ms.] Jangjoo at that time, ” and clarifies that Ms. Sieg denied the recommendation for probation and extended her contract for another year. Pl.'s Resp. to Def.'s SOMF ¶¶ 10-11.

         In March 2015, Ms. Jangjoo's contract was modified to add services as a Writer/Researcher/Reporter/Producer. Am. Compl. ¶ 32. PNN supervisors were unimpressed with her work; Mr. Kalhor stated that Ms. Jangjoo had “poor TV production skills” and an Executive Editor described one report produced by Ms. Jangjoo as “follow[ing] no logic and was put together with total anarchy.” Def.'s SOMF ¶¶ 13-14. Ms. Jangjoo does not dispute that she was responsible for putting together the report, but claims that others, who she does not name, were also involved. Pl.'s Resp. to Def.'s SOMF ¶ 13.

         B. Events Leading to the Online Petition About Mr. Dehghanpour's Removal from Hosting Ofogh

         In April 2015, an incident occurred between PNN and the host of Ofogh. Def.'s SOMF ¶¶ 19-21; Opp. to Mot. for Summ. J. (“Pl.'s Opp.”) Ex. 8 (“Statement of Siamak Dehghanpour”) at 10, ECF No. 36-10. PNN claims that Mr. Dehghanpour refused at the last minute, despite orders from the Executive Editor and Ms. Sieg, to go on air to report on the breaking news of the Iranian nuclear deal. Def.'s SOMF ¶ 19. PNN's impression was that the refusal related to not wanting to work with a would-be co-anchor. Id. ¶ 20. Mr. Dehghanpour's version of events was that he wanted to proceed with his show as scripted (also about the Iran nuclear deal), and did not feel comfortable interrupting the scheduled line-up of speakers to deliver breaking news that had not yet been confirmed by the Associated Press or the White House. See Statement of Siamak Dehghanpour at 1, 5. With respect to the co-host, he stated that he had “never co-hosted a show in the middle of a program on air” and that “there was no clear order nor a clear mission” for him to follow. Id. at 8. Following this incident, Mr. Dehghanpour was removed from the air. Def.'s SOMF ¶ 22.

         In summer 2015, a petition was posted on the website change.org to reinstate Mr. Dehghanpour. Def.'s SOMF ¶ 24. Ms. Jangjoo signed the petition in July 2015. Id. ¶ 25. On July 18, 2015, Ms. Sieg received an email with a link to the petition, but claims that she did not click on the link. Id. ¶¶ 26, 28. A search of Ms. Sieg's browsing history on her work a showed that she did not visit any change.org site in July or August 2015. Id. ¶ 28. The facts that Ms. Jangjoo signed the petition and that Ms. Sieg received an email with a link to the petition, but did not check any change.org website from her work computer in July or August 2015, are all undisputed. Pl.'s Resp. to Def.'s SOMF ¶¶ 25-29. It is also undisputed that Ms. Sieg receives around 300 emails a day and does not open all of them, and Ms. Jangjoo does not claim to have shown the petition to Ms. Sieg. Id. ¶¶ 27, 29.

         C. VOA's Ongoing Budgetary Difficulties and Ms. Jangjoo's Reduction of Work

         Concurrent to these events were VOA's budgetary difficulties. Ms. Sieg claims that in early 2015, she was instructed to begin identifying contracts to reduce or eliminate; by mid-May 2015, she was told that VOA would “likely have to make some reductions in contractors due to budget cuts.” Def.'s SOMF ¶¶ 31, 33-34. On July 22, 2015, it was again reiterated to Ms. Sieg by email that the “VOA budget is tight this year” and to “ensure that you are only funding or purchasing items that are ‘must haves' and not wish list items.” Id. ¶ 35. A memorandum circulated to prepare for an anticipated $1.5 million budgetary shortfall explained that PNN would have to reduce contractor costs by 30%, either by “reducing the average number of days per month that each contractor can work from 18 to 11” or by “eliminating approximately 25 contract positions (out of 81).” Id. ¶ 36.

         In September 2015, an analysis determined that reducing Ms. Jangjoo's assignments from 18 to 10 per month would enable the budget for her position to last until early February 2016, a few weeks before her contract was scheduled to end. Mot. for Summ. J. Ex. 15, ECF No. 35-4. PNN management also determined that Ms. Jangjoo's services could be cut to four hours a day since she only worked on a particular show. Def.'s SOMF ¶ 42. Mr. Kalhor made both recommendations to Ms. Nixon based on Ms. Jangjoo's performance and PNN's “reduced need for her services.” Id. ¶ 43.

         On November 10, 2015, Mr. Kalhor emailed Ms. Jangjoo that she would have 10 assignments totaling 80 hours that month. Mot. for Summ. J. Ex. 16. Two days later, Messrs. Kalhor and Adib told her in person that her assignments would only be for four hours a day. Id. Ex. 17. Mr. Adib reported to Ms. Sieg that Ms. Jangjoo's response was to “[take] the conversations to a personal level” and that she threatened to “set herself on fire” in front of the building. Id. Mr. Adib also wrote that Ms. Jangjoo thought “this decision [was] on a personal level and some people including [Mr. Adib] have been planning to terminate her contract for a long time.” Id. Ms. Sieg forwarded Mr. Adib's email to Human Resources, the Office of Security, and the Office of Contracts. Id.

         D. Ms. Jangjoo's Removal and Bar from the Building

         On November 13, 2015, the Office of Security and the Insider Threat Manager interviewed Ms. Jangjoo and reported that she was “still upset” about her hours being reduced but that she claimed not to be serious about the earlier threat of self-immolation. Id. Ex. 18. The Insider Threat Manager also reported that Ms. Jangjoo was transported to D.C. Psychiatric Services by the police for further evaluation. Id. While BBG asserts that they called the police after Ms. Jangjoo agreed to receive medical attention, Ms. Jangjoo claims that she only asked for assistance and not a medical evaluation. Def.'s SOMF ¶ 63; Pl.'s Response to Def.'s SOMF ¶ 63.

         After the incident, BBG's security team recommended that Ms. Jangjoo be barred from returning to the building, and a group representing Human Resources, Contracts, and Ms. Jangjoo's supervisors accepted this recommendation. Mot. for Summ. J. Ex. 27, ECF No. 35-5. The group also agreed that the remainder of the funds on Ms. Jangjoo's contract would be paid to her and that her contract would be terminated. Id.; cf. Pl.'s Opp. Ex. 15, ECF No. 36-12 (email from Contract Specialist stating that no termination letter was executed). It is undisputed that Ms. Sieg did not participate in the meeting between Ms. Jangjoo and BBG's security team and that Ms. Sieg had no role in having Ms. Jangjoo escorted from the building or being barred from it afterwards. Def.'s SOMF ¶¶ 66-67.

         E. Procedural History of this Lawsuit

         Ms. Jangjoo began this lawsuit in May 2016 and, with leave of court, filed an amended complaint in late August 2016. Compl., ECF No. 1; Am. Compl., ECF No. 14. The original lawsuit was brought by Ms. Jangjoo and another plaintiff against the BBG and Ms. Sieg. See id. The Defendants moved to dismiss all claims except for two brought by Ms. Jangjoo against Ms. Sieg in her personal capacity, which another judge of this District granted. Mem. Op. 2, ECF No. 23. The two remaining claims are Ms. Jangjoo's First Amendment claim that Ms. Sieg infringed on her right to free speech by reducing Ms. Jangjoo's assignments in retaliation for signing the petition, and her Fifth Amendment claim that Ms. Sieg's “prohibition of Plaintiff Jangjoo's entry into the BBG Headquarters violated her due process rights.” See Am. Compl. ¶¶ 117-18, 130. Ms. Sieg now seeks summary judgment on these claims.

         II. LEGAL STANDARD

         To prevail on summary judgment, the movant must show an absence of a genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue of material fact is one that would change the outcome of the litigation. Anderson, 477 U.S. at 248. The Court views the evidence in the light most favorable to the non-moving party. Johnson v. Perez, 823 F.3d 701, 705 (D.C. Cir. 2016).

         III. ANALYSIS OF FIRST AMENDMENT CLAIM

         Ms. Jangjoo's First Amendment claim fails as a matter of law because the First Amendment has not been recognized as a basis for a Bivens action, nor does controlling precedent dictate that one should now be judicially created to cover Ms. Jangjoo's cause of action. Second, even if a Bivens remedy existed, which it does not, Ms. Sieg is entitled to qualified immunity. Last, although these bases independently preclude review of the merits, there is no genuine issue of ...


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