EL HAM SATAKI ,

Plaintiff,

v. BROAD CASTI

NG B OARD OF GOVERNORS, et al. , Def endants. UNITED STAT ES DIS TRICT COURT

F OR THE DIS TRICT OF COLUM BIA

Civil Action No. 10-534 ( CKK)

MEMORAN DUM OP INION (June 1, 2010) Plaintiff Elham Sataki filed the above -ca ptioned action throug h counsel on Apr il 2, 2010. She named a s Defe ndants her e mploy er, the Br oadca sting B oard of Gover nors (“ BB G”) , as we ll as

sever al member s and employ ees of the B BG , both in their officia l and individual capa cities (“Individual Defe ndants”) ( collectively with BB G, “De fenda

nts”). In her Complaint, Plaintiff alleg es that De fenda

nts have violated he r constitutional rig hts under the F irst, Fourth, F ifth, and Four teenth Amendme nts and have also denied he r a r easona ble ac commodation for he r alleg ed disability under the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq . Plaintiff’s claims in this 1 action ar e lar g ely

premised upon he r alleg ations, asserte d in the rela ted civil action Sataki v. Falahati , Civ. Act. No. 10-466 (CKK) , that she wa s, inter alia , sexually hara ssed and a ssaulted by

a co- worke r at B BG . Plaintiff alleg es in the pre sent ac tion that Defe ndants unlawfully fac ilitated the alleg ed sexual hara ssment, actively attempted to cove r up the incide nts of hara ssment,

Plaintiff has also asser

ted a c laim under the Privac y Act of 1974, 5 U .S.C. §§ 552(a) et 1 seq. The pa

rties have ag ree d that this claim is not presently at issue in Plaintiff’s Motion for a Tempora ry RestrainingOrde r. Ac cording ly , while cognizant that P laintiff has a sserted a claim under the Privacy

Act, that cla im is not addre ssed in the instant Memorandum Opinion.interfe red w ith the investigation of her a dminist rative c omplaint, and reta liated ag ainst her f or complainingabout her

co-w orker ’s har assingconduct a s well as for criticizing B BG ’s manag ement and mission. Plaintiff further alleg es that, as a

result of these actions, she ha s suffe red both menta l and phy sical injuries and that BB G and the of ficial c apac ity

Individual Def endants have fa iled to provide her with a re asonable acc ommodation for these a lleg ed disabiliti es. On May 20, 2010, Plaintiff filed the now pe nding Motion for a Te mporary

Restraining Orde r. On May

24, 2010, prior to re solution of Pl aintiff’s Motion, Def endants filed a

[10] Notice 2 of Related Ca se, advisingJ udg e Richar d W. R oberts, to whom this case w as pre viously assig ned, that this action was re lated to a c ivil action pendingbefor e the unde rsig ned, Sataki v. Falahati , Civ. Act. No. 10-466 (CKK) . The c ase w as subseque ntly rea ssigne d to this C ourt by the Calenda

r Commi ttee on May

25, 2010, seeDocke t No. [29] (Reassig nment of Civil C ase) , and the Court held an on- the-re cord c onfer ence call with counse l for all par ties that same day

to discuss Plaintiff’s Motion. P laintiff indicated a t that time through he r counse l that she wished to proc eed direc tly to consideration of her r equest for a tempora

ry restra ining or der. A ccor dingly , the Court held in abeyance Plaintiff’s reque st for a pr eliminary injunction and set an e x pedited brie fing schedule for c onsideration of Plaintiff’s r equest for a tempora

ry restra ining or der only . Pursuant to that schedule , Def

endants filed the ir Opposition to P laintiff’s Motion on May 27, 2010, and
As a re sult of appar ent technolog ic difficulties e x perie nced by Plaintiff’s counsel whe n 2 filing the Motion, the origina l version of the Motion filed on May 20, 2010, appea

rs to be missing ce rtain attac hments and exhibit s. SeeDocke t No. [5] . Plaintiff re-f iled the Motion, alongwith a complete se t of exhibi ts, on May 24, 2010. SeeDocke t No. [11] . The Court notes that the two motions are substantively identical. Ac cording ly , for c onvenienc e, all citations to Plaintiff’s Motion and exhi bits in t his Memorandum Opinion are to the complete ve rsion filed on May 24, 2010. SeeDocke t No. [11]

. 2Plaintiff filed her Re ply on May 28, 2010. Upon consider ation of the pa rties’ filing s, the rele vant

case law and sta

tutory provisions as well as the r ecor d of this case as a whole, the Court shall DENY Plaintiff’s Motion for a Tempora ry Restraining . Ultimately , althoug h the Court understands Plaintiff’s pr esent he alth conce rns, the Court finds that Plaintiff has not demonstrate d on the pre sent rec ord that she is leg ally entitled to the relief

she now see ks. Absent such a showing , the Court cannot g rant Plaintiff’s re quest for a temporar y restra ining or der. 3 I. BACKG ROUND A. Factual Back

ground The B roadc asting Boa

rd of Gove rnors is a f

eder al ag ency

responsible for

the U.S. Gover nment’s international broadc asting

. See G rosdidier v. Chairman, BBG , 560 F.3d 495, 496 (D.C. Cir. 2009). It manag es a ne twork of individual broa dcastingservice s, including the International Broa dcastingBur eau, which ca rries out g overnme nt-sponsored nonmilitary international broa dcastingthroug h the Voice of America ( “VOA ”) a nd other e ntities. See 22 U.S.C. §§ 6202, 6204, 6206. The Persian Ne ws Networ k (“PNN” ), which is under the VOA, provides TV a

nd radio ne ws and infor

mation prog rammingto an audienc e in Iran. Plaintiff has also re quested that the Court hold an e videntiary hear ing on he r Motion for 3 a Te mporary

RestrainingOrde r so that she may prese nt the live testimony of her treating c linical psy cholog ist. SeePl.’s Notice, Docke t No. [20] . The Court notes that De fenda nts have at this time acc epted the statements of Plaintiff’s tre ating clinical psycholog ist as asserte d in the decla rations attac hed to Plaintiff’s initial application for a temporar y restra ining or der a

nd do not fac tually dispute any

medical c onclusions rea ched by her c linical psycholog ist in her decla ration or attac hed re ports. The Court shall there fore do the same. I n addition, although D efe ndants have not yet had a

n opportunity

to reviewthe newly -submitted declar ation from Plaintiff’s treating c linical psycholog ist that was submitt ed with Plaintiff’s Reply , the Court finds that the asser tions therein do not materia lly aff ect its dec ision on P laintiff’s re quest for a temporar y restra ining or der a

nd has there fore acc epted suc h statements for pur poses of this Memorandum Opinion as well. See infra at p. 13, n. 11. As such, the Court f inds that an evidentiar

y hear ing is not nece ssary

for r esolution of Plaintiff’s Motion for a Te mporary RestrainingOrde r. 3Plaintiff Elham Sataki is a GS-12 international br oadca ster for PNN. See Pl.’s Mot., Ex . 1 (F irst Decla

ration of Elham Sataki) (her einaf ter, “ First Sataki De cl.”) , ¶ 6; Def s.’ Opp’n, Ex. 2 (De clar ation of Donna

Gra ce) (her einaf

ter, “ Gra ce D ecl.” ), ¶ 7. He r duty station is in W ashing ton, D.C. Grac e De cl. ¶ 7 & Ex . G (SF- 50). Plaintiff beg an wor king f or PNN as a

n employ ee on Fe bruar y 19, 2008. See id. , Ex . G (SF- 50). Plaintiff’s re sponsibili ties include re adingnews seg ments for the shows “News a nd Views” and “N ews B rief,” which ar e both taped in Washington, D.C., as we ll as perf ormingg ener al assig nments, which involves g oing into the f ield, conductinginterviews, a

nd cre ating“pac kag es.” See Def s.’ Opp’n, Ex. 3 (Dec laration of Susan Reed Jackson) (he reina fter, “ J ackson D ecl.” ), ¶ 3. I mportantly , while Plaintiff’s job duties 4

occa sionally

require her to pe rfor

m her wor

k duties in the field, the re cord indicates that Plaintiff has alwa y s been a ssigne d to the Washington, D.C. duty station; there is no indication that Plaintiff has bee n detailed to any

other off ice location nor is there a ny evidenc e that she ha s been pe rmitted to work fr om another loc ation (e.g ., through a telec ommuting ar rang ement, etc .) for

any extended period of time. Since as e arly

as Aug ust 2009, Pl aintiff has r equeste d to be assig ned to L os Ang eles, California, whe re she resided f or nea rly 10 y ear s prior to ac ceptingher c urre nt positi on with PNN. SeeDef s.’ Opp’n, Ex. 6 (corr espondenc e fr om Plainti ff to VOAsupervisor dated August 26, 2009; J anuar y 5, 2010; and J anuar

y 14, 2010); seeFirst Sataki De cl. ¶¶ 3- 4. A sepa rate division of VOA
Whil e Plaintiff disputes various stateme nts contained in the Jackson Dec laration, she 4 has not disputed the ac cura cy of her job duties description provided in Ms. J ackson’ s decla ration. Rather, Plaintiff cha lleng es only Ms. J ackson’ s assertion that Plaintiff, at pre sent, “doe s not possess the skills necessar y to produce quality

broadc ast news pa ckag es indepe ndently ,” and “ is not capa ble of pe rfor

ming wor k at a br oadca st news industry standard” without “extensive supervision and mentoring .” Jackson Dec l. ¶¶ 4-5. U ltimately , the Court finds that this disput e is imm ater ial to its decision below. 4— the Central Ne ws Division (which is not a par t of PNN) — has a

L os Ang eles off

ice that is staffe d by two employ ees, na

mely , a Supervisory

International Radio Broa dcaste r, GS-13, who

serve s as a c orre spondent, and a Prog ram Assistant, GS-9, who produc es ra dio and television transmissions. SeeDef

s.’ Opp’n, Ex. 8 (Dec laration of J ack Pay ton) (her einaf

ter, “ Pay ton Decl.” ), ¶ 2. PNN has oc casiona lly used the Centra l News Division’s studio office to permit its employ ees in the D.C. office to remotely interview a

n individual in L os Ang eles. Id. ¶ 3. In addition, PNN has three contra ctors loca ted in L os Ang eles, two of w hom are contra ct VJs and the third of whom is a web e ditor, who are allowed to use spa re de sks located in the Centra l News Division’s L os Ang eles off

ice a s neede d. Pay

ton Decl. ¶

¶ 3, 5; see also J ackson D ecl. ¶ 7. The c ontrac tors are not staff but instead wor

k fre elanc e on a da

y rate and ar e expected to wor k independe ntly . J ackson Dec l. ¶ 7. PNN does not curr ently have a ny full time employ ees in L os Ang eles nor doe s it perf orm any on-air w ork in L os Ang eles. Id. ¶ 8. Plaintiff does not dispute, nor has she of fer ed any evidenc e to contra dict, Def endants’

sworn asse rtion that PNN does not have a ny full time employ

ment positions available at VOA ’s office in L os Ang eles. In addition, the Court notes that there is no e vidence in the rec ord to indicate that a

ny full-time PNN employ ee a ssigne d to PNN’s Washington, D.C. offic e has e ver been pe rmitted to “telec ommute” from VO A’s L os Ang eles off ice f or extended per iods of time. Whil e Plaintiff g ener ally

asser ts that many

of VOA ’s employ ees “ telecommute to wor k from all around the nation on a re g ular ba sis,” Pl.’s Reply at 19-20, ther e is no indication in the rec ord that any PNN employ ees a ssigne d to the Washington, D.C. offic e have been pe rmitted or ar e other wise

5able to telec ommute from VOA’ s L os Ang eles off ice. 5 It appea rs that on some unspec ified date in Febr uary 2010, Plaintiff voluntarily trave led to L os Ang eles, California , for pe rsonal re asons using annual lea ve. While there, Plaintiff a sserts that she suffe red “ a complete nervous br eakdown,” ca using he r to bec ome “menta lly and phy sically

disabled.” SeeCompl. ¶ 6(f). On F ebrua ry 24, 2010, Plaintiff was diag nosed by Dr. Arlene T. Aviera , her tre ating clinical psycholog ist, as suffer ing f rom a major de pressive disorde r, who also noted that Plaintiff wa s suffer ing f rom migr aine he adac hes and ha d a history of a bleedingulcer

with rec urringpain. SeePl.’s Opp’n, Ex. 6 (medical repor ts prepar ed by

Dr. Aviera ). Dr. A viera

indicated that Plaintiff wa s unable to work at that time. Id. ; see also id. (first follow-up re port by

Dr. Avie ra dated Marc h 18, 2010, confirmingthat Plaintiff continued to suffe r from a ma jor depre ssive disorder, but indicating that ther e had be en “some positive shift in [P laintiff’s] depresse d mood” and r ecommendingthat Plaintiff “continue on disability ”). On Marc h 10, 2010, havingexhausted all but 4 and 1/4 hours of her annual lea

ve and 4 hours of he r sick leave, Plaintiff re quested lea ve under the Fa mily Medica l L eave Act and/or advanc ed annua l or sick leave . Def s.’ Opp’n, Ex. 4 (Dec laration of L isa Ander son) (he reina fter, “Ande rson Dec l.”), ¶¶

2-3. PNN provided Plaintiff with adva nced a nnual leave for pa

y periods 5 and 6, but deter

mined that she wa s not eligible f or adva nced sic k leave under B BG ’s human Plaintiff’s sole support for he r cla ims that VOA employ ees a re r outinely

permitted to 5 telecommute is the Sec ond Dec lara tion of AFG E L ocal 1812 Pre sident Timothy E. Shamble. See Pl.’s Reply

at 20 & Ex . B ( Second De clar ation of Timothy E. Shamble). While Mr. Shamble rec ounts severa l examples of PNN employ ees at the Washington, D.C., PNN offic e who have been a llowed to reloc ate to or w ork fr om New Yor k, see id. ¶¶ 4- 6, he does not indica te that any PNN employ ees ha

ve pre viously

been pe rmitted to relocate to or work f rom the L os Ang eles VOA of fice , see ge nerally id. Acc ording ly , even a cce pting Mr. Shamble’ s statements, there is no evidenc e that PNN employ ees, like Plaintiff, who a re stationed in Washing ton, D.C., have previously

been pe rmitted to telecommute fr om the VOA of fice in L os Ang eles. 6resour ce policie s. Id. ¶¶ 4- 5. Specifica lly , as B BGadvised Plaintiff’s c ounsel, in order to obtain advanc ed sick lea

ve, an e mploy ee must demonstrate that she will retur n to duty afte r the pe riod of sick leave is completed; bec ause Plaintiff did not provide B BGat that time with any medical documentation indicatinga date by which it was e x pecte d that she could re turn to work af ter the period of sic k leave was c ompleted, Plaintiff was found to be ineligible f or the a dvance d sick leave

. Id. ¶ 5. Plaintiff was also found to be ineligible f or administrative lea

ve with pay

as “[i] t is 6 not the ag ency ’s policy

or pra ctice . . . to plac e administrative e mploy ees on a dminist rative le ave based solely

on unproven a lleg ations of sexual harassment.” Gra ce D ecl. ¶ 6. Plaintiff therea fter 7 applied for

BB G’s donate d leave prog ram a nd was plac ed in the program re troac tive to Febr uary 28, 2010. Ander son Dec l. ¶ 6. As of May 25, 2010, Plaintiff had re ceive d 114 hours of donated leave , which wa s g iven to her f or pay periods 5, 6, 7, 8, 9, and 10. Id. Plaintiff has there fore

Whil e Plaintiff contends that Defe ndants’ explanation for de nying Plaintiff a dvance d 6 sick leave is “disinge nuous and spurious,” Pl.’s Reply at 6, Plaintiff has not offe red a ny evidenc e contra dicting Ms. Ande rson’s sworn statement that a spe cific r eturn date is require d under B BG policy in order to be elig ible for a dvance d sick leave . At the time of the Mar ch 10, 2010 re quest, Dr. Avie ra ha d not y et indicated that Plainti ff c ould return to wor k and ther efor e did not provide a spec ific re turn date a s require d. Plaintiff emphasizes that, by contra st, Defe ndants have place d her a lleg ed har asser on 7 administrative leave with pay pendingcompletion of the investig ation into Pl aintiff’s a lleg ations of har assment. Acc ordingto BB G, the dec ision to pl ace Plaintiff’s co-w orker on administrative leave is consistent with the Office of Personne l Manag ement’s guidance indicating that “[a] supervisor may

use administrative lea

ve to kee p an employ ee a way from the wor

ksite to ensure the safe ty of employ ees while conductingfurther investigation and decidinga cour se of a ction.” Gra ce D ecl. ¶

5. Acc ording ly , BB G deter mined that “[i] n order

to ensure the safe ty

of other fema le employ ees while the ag ency investigates the[] extremely serious cha

rg es [made by Plaintiff] , the ag ency

appropr iately

used administrative lea

ve.” Id. ¶ 6. Plaintiff has not offe red any evidenc e to indicate that Ms. Grac e has misstated or mischa rac terized the applica

ble policies on administrative leave . In addition, while Plaintiff has argued in her Reply that she wa s wrong fully

denied a dminist rative le ave w ith pay , Def endants have not yet had a n opportunity

to respond to this assertion, which w as ra ised for the first time in Pl aintiff’s Reply briefing

. 7continued to obtain some pay — albeit not her f

ull salary — for the time she has bee n out of the office

. Id. On Marc h 25, 2010, BB G’s Of fice of Civil R ights re ceive d a complaint fr om Plainti ff alleg ing disc rimination and repr isal. SeeDef s.’ Opp’n, Ex. 1 (EEO Complaint). The c omplaint

was a cce pted on Marc h 30, 2010, and the c laims were revised on A pril 9, 2010. See Def

s.’ Opp’n, Ex . 5 (De clar ation of Michae l D. Hill) (her einaf ter, “ Hill Decl.”) , ¶ 4. The c omplaint is currently still within the administrative stag e. Id. ¶ 5. None theless, Plaintiff filed the instant lawsuit on April 2, 2010. SeeCompl., Docket No. [1]

. Plaintiff was authorized by the Chief of Staff

for VO A to be deta iled to the Middle East Desk at the Central Ne ws Division in W ashing ton, D.C., during the course of the investig ation into her c laims of sexual harassment and r etaliation. Def s.’ Opp’n, Ex. 7 (Dec laration of Ba rbar a N. Br ady ) (he reina fter, “ Br ady

Dec l.”), ¶ 2. T he deta il would permit Pl aintiff to continue to conduc t the job duties she per formed a t PNN, such as fie ld reportingand wor king on pa ckag es, althoug h her w ork would be pr oduced in Eng lish. Id. ¶ 3. Plaintiff would have repor ted direc tly

to and been supe rvised by

Central Ne ws Division staff. Id. The de tail was intended to sepa rate Plaintiff from the PNN c o-worke r whom she a lleg es sexually hara ssed and a ssaulted her as we ll as her PNN supervisors whom she c laims retaliated a g ainst her; the Centra l News Division’s Off ice doe s not share space with PNN, and VOA of fer ed to work w ith Pl aintiff, throug h her c ounsel, to ensure that Plaintiff would not have conta ct with those ac cused of the unlawf

ul conduct. Id. ¶ 4. Plaintiff counters that the sug g ested a ccommodation is inadequate for two pr incipal

rea sons. First, Plaintiff asser ts in her brief

ing that she is “not comforta ble enough in Eng lish” to repor t in that langua g e. SeePl.’s Reply at 13, n. 1. This asser

tion, however , is made only in
8Plaintiff’s pleading s, and there is no evidence to support this claim; t o the contra ry , the only evidenc e in the re cord on this point indicates that Plaintiff is fluent in Eng lish. SeeFirst Sataki Dec l., Ex . 1 (Plaintiff’s re sume, indicatingthat she is able to “f luently speak, r ead a

nd write” in “Swedish, Persian ( Fa

rsi), and Eng lish”). Second, Plaintiff asse rts that beca use the Middle Ea st Desk is locate d in the same building as PNN and sha res the sa me re cordingstudios, walkway s and

common are as, she will be r egularly exposed to her alleg ed har asser and the PNN mana g ers who have a lleg edly

reta liated ag ainst her. SeePl.’s Reply at 13, n. 1. Ag ain, howeve r, Plaintiff has not pointed to any

evidentiar

y support in the rec ord for

her a ssertion that she would be “ regularly exposed” to the PNN staff if she ac cepte d the Central Ne ws Division detail, and such a n asser tion direc tly contra dicts the sworn stateme nt of Ms. Br ady that “[t] here is no shared spa ced w ith the Persian Ne ws Networ

k.” B rady

Dec l. ¶ 4. Fur

thermore , Plaintiff’s alleg ed har asser is curre ntly

on administrative leave , and B BGhas aske d Plaintiff’s counsel “ to provide sug g estions in order to

ensure the ar

rang ement would wor

k more e fficie ntly .” Id. ¶ 4. The r ecor d does not indicate that any such sug g estions have be en provide d by Plaintiff, other than the r equest to work out of the L os Ang eles VO A offic e. On April 19, 2010, Plaintiff’s treating c linical psy cholog ist, Dr. Aviera , provided afollowup to her pre vious medical re ports indicating that “while the dia g nosis of Major De pressive Disorder still holds, [ Plaintiff] continues to manifest some psycholog ical improveme nt.” SeePl.’s Mot., Ex . 6 (medica l reports pre pare d by Dr. Avie ra) . Dr. Avie ra “ rec ommended that [Pl aintiff] return to wor

k on May 5, 2010.” Id. She indicated that “ [a] lthough the de pressive sy mptoms are 8

I t appea rs that Dr. Aviera

subsequently

amende d her opinion in a memora ndum dated 8 May 5, 2010, to state that Plaintiff could not repor t to work until May

14, 2010. See Pl.’s Mot., Ex . 9 (May

12, 2010 L etter f

rom Donna S. Gra ce to Plaintiff). That memorandum does not

9still prese nt, they have subsided e noug h that [P laintiff] would be able to ca rry out her duties,” assuming that Plainti ff c ould be place d in “a wor k environment in which she would not be in the prese nce of

the individual who hara ssed her in the past.” Id. Finally , Dr. Avie ra c oncluded that, “[i] t is essential in my

profe ssional opinion that [ Plaintiff] would continue to live in L os Ang eles.” Id. Ba sed on this rec ommendation, on or about May 7, 2010, Plaintiff advised B BG , throug h her attorney , that she wa s prepa red to a nd would repor

t to work, but indicated that she w ould repor t to the VOA off

ice in L os Ang eles. SeePl.’s Mot., Ex . 9 (May 12, 2010 L etter f

rom Donna S. Grac e, Dire ctor of the Offic e of H uman Resourc es, to Plaintiff’s counsel) . On May 12, 2010, Plaintiff was advised by

BB G that she should instead re port for duty in Washington, D.C. and noted once ag ain that B BGwas willing to place he r on deta il to the Central News D ivision i n Washington, D.C. See id. She was fur ther infor med that fa ilure to repor

t for wor k in Washington, D.C. on May

14, 2010, without prior authorization for additional leave, would be grounds for placingher on A

bsence Wit hout L eave (“A WOL ”) status, whic h could form the ba sis of disciplinary

action. SeePl.’s Mot., Ex . 9 (May 12, 2010 L etter f

rom Donna S. Gra ce, D irec tor of the Off ice of Human Resourc es, to Plaintiff’s counsel)

. In response , Plaintiff provided a le tter fr om Dr. Avier a, date d May 13, 2010, in which Dr. Aviera “strong ly rec ommend[ed] ” that Plaintiff be pe rmitted to work in L os Ang eles. SeePl.’s Mot., Ex . 9 (May

13, 2010 L etter f

rom Dr. Avie ra to Donna S. Grac e, Dire ctor of the Offic e of Human Resourc es, to Plaintiff’s counsel) . Dr. Avie ra’ s letter wa s forwa rded by Plaintiff’s counsel to BB G on May

14, 2010, alongwith an email indicatingthat Plaintiff would report to the VO A

appea r to be in the re cord nowbefor e the Court. 10office in L os Ang eles. SeePl.’s Mot., Ex . 9 (May 14, 2010 emails). On Ma y 18, 2010, BB G sent a letter to Plainti ff, via c ounsel, reiter ating that no position ex isted in L os Ang eles a nd indicating that Plaintiff had bee n place d on AWOL status in light of her

failure to report f

or duty

. See id. (May 18, 2010 L etter f

rom J ohn L ennon to Plaintiff’s Counsel). B BGfurther advised Plaintiff that her r equest for

a re assig nment was not a r easona ble ac commodation and ther efor e re quested that Plaintiff state a re asonable acc ommodation supported with proper me dical docume ntation. Id. At prese nt, Plainti ff r emains in L os Ang eles a nd has not repor

ted to work in Washington, D.C. BB G has re cently

advised the Court that, in an e ffor t to compromise on the issues raise d in Plaintiff’s Motion, ithas agree d to place Plaintiff on unpa id leave a nd there fore no longe r classifies he r as AWOL . Def s.’ Opp’n at 5 & n. 2. Plaintiff ther efor e has not be en ter minated and thus, unlike a terminated e mploy ee, ha s not lost access to any previously -held he alth insurance

cover ag e. B. Procedural History As indicated a

bove, Plaintiff filed the instant ac tion on April 2, 2010. See Compl., Docket No. [1] . Plaintiff’s Complaint sets forth six cause s of ac tion:

• Count I : alleg es that Def endants infring ed her rig ht to fre e speec h in violation of the First Amendment by reta liating ag ainst her for h er p ersona l political views, her criticism of VOA’ s manag ement and failure to a dhere to its mission to promote fre edom in I ran, and other unspec ified spee ch made at VOA/PNN, Cong ress, a nd elsewhe re. Id. ¶¶ 10- 12.

• Coun t I I : alleg es that Def

endants violated Plaintiff’s Fifth Amendment rig ht to due proce ss by “cove ring up and denying her relief for sexual hara ssment,” “re taliating ag ainst her to t ry and keep her quiet, destroy her mentally and phy sically and to forc e her o u t o f PNN/VOA,” a

nd by tamperingwith, intim idating, and obs tructing materia l witnesses to the alleg ed sexual hara ssment. Id. ¶¶ 14- 15.

• Count I I I : alleg es that Def endants impermissibly discriminated ag ainst her on the basis of her g ender and national orig in, fac ilitated the acts of sexua l h ar as sment, and reta liated
11aga i n s t Plaintiff for exercising her constitutional rig hts in violation of the Four teenth Amendment’s e qual protec tion clause. Id. ¶¶ 16- 18.

• Count I V: alleg es that Def endants violated Plaintiff’s Fourt h Am endment rig ht to be secur e in her person and proper ty by allowing her co-w orker to assault and sexually hara ss Plaintiff and by

unlawfully

“conf iscating ” Plaintiff’s paychec ks. Id. ¶¶ 19- 22.

• Count V: alleg es that De fenda nts denied Plaintiff’s re quest for a rea sonable medic al acc ommodation to be detailed to the VOA L os Ang eles office in violation of Section 504 of the Reha

bilitation Act of 1983, 29 U.S.C. §§ 701 et seq . Id. §§ 23-28.

• Count VI : alleg es that De fenda nts failed to timely

produce rec ords Plaintiff reque sted in violation of the Privacy

Act of 1974, 5 U .S.C. §§ 552(a) et seq . Id. ¶¶ 29- 31. Plaintiff seeks, inter alia , compensatory and punitive damag es and a perma nent injunction order ing “ that Plaintiff be g iven ‘re asonable medical a ccommodation’ by beingdetailed a

nd installed permane ntly” in the L os Ang eles off ice of VOA. See id. at p. 21. 9 On May 20, 2010, Plaintiff filed the now pe nding Motion for a Te mporary

Restraining Orde r and/or Pre liminary Injunction. As set forth ther ein, Plaintiff reque sts issuance of a temporar y restra ining or der a

nd/or preliminary

injunction that, in P laintiff’s wor ds: (1) “r estrain[s] [BBG ] from preventingPlaintiff from re porting to work immediately at the L os Ang eles Of

fice of
On J une 1, 2010, Plaintiff filed a n [35] Amended Complaint. Plaintiff indicated that she 9 filed the Ame nded Complaint in order to add a n expli cit claim for inter im injunctive relief dur ing the pende ncy

of an a dminist rative pr ocee ding unde r W agner v. Taylor , 836 F.2d 566 ( D.C. Cir. 1987). SeePl.’s Notice, Docke t No. [33] ; see also Am. Compl. ¶¶ 31-33 (a dding a claim for “Wag ner Te mporary

Relief” a s Count VI I ). The Court notes that the amendments do not appe ar to modify or alter Plaintiff’s substantive alleg ations or the alleg ations asserte d in Counts I throug h VI , as ar e dire ctly rele vant to the pendingMotion. As is clear be low from the Court’s discussion of W

agner , see infra at pp. 15-17, the Court is alre ady awa re of Plaintiff’s position that she is entitled to interim injunctive relief unde r that dec ision and was pre pare d to evaluate the merits of Plaintiff’s re quest for interim injunctive relief e ven prior to Plaintiff’s amendments to her Complaint. Accor dingly , g iven this fact a nd the emer g ency

nature of Plaintiff’s Motion for a Tempora ry RestrainingOrde r, the Court shall re fer only to Plainti ff’ s orig inal Complaint i n this Memorandum Opinion. As Plaintiff’s amendments do not mater ially aff ect the Court’ s decision her ein, doing so does not prejudice Plaintiff and ensure s that a rulingis issued on her Motion as expediently

as possible. 12Voice of

Americ a to per form her

duties as an inter

national broa dcaste r in the Persian N ews Servic e and be pa id her norma l salary hence forth as a

Gra de GS-12;” a

nd (2) “ restra in[ s] [ BB G] from not reimbursingPlaintiff for all bac k pay [,] used vac ation time, and ac crue d benef its up to and including the prese nt.” Pl.’s Mot., Ex . 1 (Proposed Or der) . Despite Plaintiff’s attempts to phrase her r equeste d relief

as see king only

a passive injunction, it is readily appar ent that Plaintiff in fac t seeks a mandatory

injunction requiringDef

endants to af

firmatively

permit Plaintiff to work from the VOA L os Ang eles off ice. Plaintiff asse rts that such a r equest is a “ rea sonable medic al

acc ommodation” for Plaintiff’s pr esent disability and is there fore require d under the Rehabilitation Act. As indicated pr eviously , the Court held an on- the-re cord c onfer ence call with counse l for all parties on Ma

y 25, 2010, to discuss Pl aintiff’s Motion. At that time, Plainti ff indicated throug h counsel that she w ished to proce ed dire ctly to her re quest for a

temporar y restra ining or der. Acc ording ly , the Court indicated that it would hold her r equest for a pre liminary

injunction in abeyance and set a

n expedited briefingschedule for c onsideration of Plaintiff’s r equest for a temporar y restra ining or der only . Pursuant to that schedule, D efe ndants filed their O pposition t o Plaintiff’s Motion on May 27, 2010, and Plaintiff filed he r Reply on May 28, 2010. 1 0 1 1

Def endants a lso filed a [31] Motion to Dism iss in P art or in the A lternative f or Partial 1 0 Summary J udg ment simult aneously with their Opposition. Defe ndants’ motion is not addressed here in. In filing he r Reply , Plaintiff attache d a ser ies of new decla rations in support of her 1 1 Motion for a Te mporary

RestrainingOrde r and/or Pre liminary Injunction. Pursuant to L ocal Civil Rule 65.1, applications for a preliminary

injunction must be “a ccompa nied by all aff

idavits on which the plaintiff intends to re ly .” L CvR 65.1(c) (e mphasis added) . “Supplemental aff idavits [ ] t o the application . . . may be filed only

with permission of the cour t.” Id. Plaintiff did not seek leave of the Court to file the additional materia ls with her Reply . The mate rials wer e ther efor e filed in violation of the loca l rules. The Court ha s nonetheless re viewed the 13II. LEGAL STANDARDS AND DISCUSSION

“The standard f

or issuance of the ‘e x traordina ry and dra stic remedy ’ of a

temporar y restra ining or der or

a pre liminary

injunction is very

high, a nd by now ver y well established.” RCM Techs., Inc . v. Be acon Hill Staffing Grp., L LC , 502 F. Supp. 2d 70, 72-73 (D .D.C. 2007) (c iting Mazurek v. Armstrong , 520 U.S. 968, 972 (1997)). The moving pa rty must show: (1) a substantial likelihood of succe ss on the merits, (2) that it would suffe r irre para ble injury if the injunction were not gr anted, ( 3) that an injunction would not substantially injure other inter ested pa rties, and ( 4) that the public intere st would be furthe red by the injunction. Chaplaincy of Full Gospel Churches v. England , 454 F.3d 290, 297 ( D.C. Cir. 2006); Hall v. Daschle , 599 F. Supp. 2d 1, 6 n.2 (D.D .C. 2009) (“ [t ]he same standar d applies to both temporar y restra ining or ders a

nd to preliminary injunctions”). The movingparty bear s the burden of

persua sion and must demonstrate, “by a cle ar showing ,” that the r equeste d relief is warr anted. Chaplaincy of Full Gospel Churches , 454 F.3d at 297. In applying this four -fa ctore d standard, district c ourts may employ a sliding sc ale a s to which a pa

rticularly strong showing in one ar ea c an compe nsate for weakness in another

are a. Id

. (quoting CityFed Fin. Corp. v. Office of Thrift Supervision , 58 F.3d 738, 747 ( D.C. Cir. 1995)). Thus, “[a]n inj unction may be justified, for e x ample, whe re the re is a pa rticularly strong likelihood of succ ess on the mer its even if ther e is a re latively slight showingof irre para ble injury .” CityFed ., 58 F.3d at 747. Notwithstanding the f luid nature of this familiar four-pa rt inquiry , “[i] t is particula rly important for the [movant] t o demonstrate a substantial likelihood of success on the

attache d decla

rations and f

inds that consideration of the asser tions set forth there in does not alter its decision as set forth be low. 14merits.” Barton v. District of Col umbia, 131 F. Supp. 2d 236, 242 (D.D .C. 2001) (citing Benten v

.

Kessler , 505 U.S. 1084, 1085 (1992)). I f the movant fa ils to do so, i nquiry into the remaining fac tors is unnece ssary , for the injunctive r elief must be de nied on that g round alone

. See Transohio Sav. Bank v. Dir., Off. of Thrif t Supervision , 967 F.2d 598, 614 ( D.C. Cir.1992) (af firmingdenial of pr eliminary injunction where the district court prope rly conclude d that the plaintiff had “ no likelihood of succe ss on the merits”); Katz v. Georgetown Univ. , 246 F.3d 685, 688 (D.C. Cir. 2001) (“ althoug h we a pply a four -fa ctor test in weig hing a reque st for a pr eliminary injunction, such relief

never will be g rante d unless a cla imant can de monstrate ‘a fair ground for litigation’” ); Taylor v. Resolution Trust Corp. , 56 F.3d 1497, 1507 ( D.C. Cir. 1995) (“G iven the inadequa cy

of [plaintiff] ’s prospec ts for succ ess on the mer its, there may be no showingof irrepa rable injury

that would entitle him to inj unctive re lief.”) , amende d on other grounds on reh’g , 66 F.3d 1226 ( D.C. Cir. 1995). Applying the se standar ds to the case at hand, the Court finds that Plaintiff has failed to de monstrate that she is entitled to a tempor ary restra ining or der on the pre sent rec ord. 1 2

For this reason, the Court ther efor e dec lines to decide whether Plaintiff must m eet a 1 2 even higher bur den of pr oof than outlined above beca use she is re questing mandatory injunctive relief — i.e., bec ause she seeks to cha ng e the status quo throug h aff irmative ac tion rather tha n to mere ly prese rve the status quo. SeeDef s.’ Opp’n at 19 (urg ing Court to apply highe r standar d to Plaintiff’s reque st for mandatory relief ). This rema ins an open que stion in t his Circuit. See Farris v. Rice , 453 F. Supp. 2d 76, 79 (D.D .C. 2006) (noting that the “D.C. Circuit . . . has not y et adopted or , for that matter , reje cted th[e] rule” re quiring a movant who se eks a ma ndatory injunction to meet a hig her standa rd than in the ordina

ry case ). While the Court ag ree s with Def endants that Plaintiff’s re quest is properly char acte rized as see king a mandatory

injunction, the Court finds that Plaintiff has failed to show that the reque sted relief is warr anted e ven under the ordinar

y standard se t forth above . Simi larly , althoug h not raised by either pa rty , the Court notes that some cour

ts in thi s Circuit have a lso applied a hig her standa rd to motions for preliminary

injunctive relief

in employ

ment discrimination case s ag ainst the fede ral g overnme nt. See, e .g., Jordan v. Ev ans , 355 F. Supp. 2d 72, 77 (D.D .C. 2004) (holding that “a pla intiff seekinginjunctive relief

in a Title VI Idiscrimination action ag ainst the fede ral g overnme nt must

15Be fore turning to consider the f acts of this ca se under

the test outlined above, the Court pauses br iefly

to addre ss the issue of its jurisdiction to entertain Plaintiff’s reque st for interim injunctive relief

. As is discussed in more deta il below, Plaintiff did not ex haust her a dminist rative

reme dies prior to filing suit. W hile Plaintiff’s failure to exhaust wil l, as Def endants a rgue, bar this Court from dec iding the me rits of Plaintiff’s claims, see ge nerallyDef s.’ MTD, it does not

nece ssarily

deprive the Court of jurisdiction over Plaintiff’s Motion for a Tempora ry Restraining Orde r. As the D.C. Circuit has made clea r, “f eder al district courts ar e author ized to afford inter im injunctive relief

ag ainst retaliator

y transfe r and othe r ac ts of repr isal while the administrative a nd judicial proce sses are ong oing.” W agner v. Taylor , 836 F.2d 566, 570 ( D.C. Cir. 1987). Acc ording ly , if “the c ourt may eventua lly

have jur isdiction of the substantive claim, the cour t’s incidental equitable jurisdiction, despite the ag ency ’s primary jurisdiction, gives the court a uthority to impose a temporar

y restra int in order to pre serve the statu s quo pendingripeningof the c laim for judicial r eview.” Id. at 571 (e mphasis added)

. Plaintiff has relied on the D.C. Circuit’s decision in W agner for the a ssertion that this Court has the a uthority to issue interim injunctive relief in this case . Def endants a ppear not to directly contest this point, acknowledg ing tha t “[c]ourts i n this dist rict have occa sionally exercised their power s to fashion interim injunctive relief in employ

ment discrimination case s prior to the completion of the a dminist rative pr ocess.” Def s.’ Opp’n at 19. As Defe ndants corr ectly
make ‘ a more stringe nt showing of irrepa rable injury ’ and de monstrate that ‘c ivil rights claims take pr ece dence over the g overnme nt’s interest in makingpersonne l decisions.’”) (quoting Bonds v. He yman , 950 F. Supp. 1201, 1212 (D.D .C. 1997), abrogated on other grounds by Nat’l R.R. Passenger Corp. v. M

organ , 536 U.S. 101, 105 (2002)). It appea rs, howeve r, that the D.C. Circuit has y et to decisively resolve this issue. Ac cording ly , beca use the Court finds — as indicated a

bove — that Plaintiff fa ils to m eet the tr aditional showing require d, it need not deter mine at this tim e whe ther a highe r standar d should apply for this rea son as well. 16emphasize, howeve r, the a uthority to issue such relief

arises f rom the Court’s “‘ limit ed judicial power to preser ve [its] jurisdiction or maintain the status quo by injunction pending r eview of an ag ency ’s ac tion through the presc ribed statutory channe ls.’” W

agner , 836 F.2d at 571 (quoting FTC v. Dean Foods Co. , 384 U.S. 597, 604 (1966)). H ere , Plaintiff seeks to alter the status quo. Despite Plaintiff’s re peate d attempts to chara cter ize the relief sought as “pre serv[ing] the status quo,” Pl.’s Reply

at 2, it is patently

clea r that she se eks mandatory injunctive relief

order ing Def endants to af

firmatively

permit Plaintiff — who was not pre viously detailed to nor pe rmitted to telecommute f

rom the VOA ’s L os Ang eles Of fice — to work fr om L os Ang eles during the cour se of administrative a

nd/or litigation proc eeding s. Given the pa rticular c ircumstance s of this case, the Court’s jurisdiction to is sue such manda tory relief is not entirely

clea r and the parties themse lves have not suff

iciently briefe d the issue. Nonethe less, g iven the eme rg ency nature of Plaintiff’s reque st for a te mporary

restra ining or der a

nd the Court’s dec ision below that the reque sted relief is not warr anted in this case , the Court need not a ffirmatively resolve this issue at this time. As the D.C. Circuit made cle ar in W agner , even if

the Court has jurisdiction to awar d the re quested interim injunctive relief

, it may do so only if “the pr ere quisites for equitable inter vention are met.” 836 F.2d at 575. Acc ording ly , beca use Plaintiff has fa iled to demonstrate that those pr ere quisites 1 3 have be en met in this case, the issuance of a tempora

ry restra ining or der is not appr opriate. O n the prese nt rec ord, Plaintiff has not demonstrate d a substantial likelihood of succe ss on the merits.
Plaintiff argues, without citation to any supporting le g al authority , that “under the 1 3 analy sis of the W

agner court, for interim injunctive relief

to issue, the first part of

the test for equitable r elief is virtually non-existent: l ikelihood of succe ss on the merits.” Pl.’s Reply at 8. This unsupported asser

tion, however , is contrar

y to the W agner decision itself, which ma de cle ar that a cour

t must evaluate a

reque st for interim injunctive re lief under the traditional four -prong test. See836 F.2d at 575-76. 17A. Plaintif f Has Not Demonstrated A Substantial L ikelihood Of Succ ess As To Her Rehabilitation Act Cl aim And Her Re quest For A “Reasonable Ac commodation” Key to Plainti ff’ s reque st for a te mporary restra ining or der, the Court finds that she is unlikely to succe ed on her

claim under

the Rehabilitation Act for a re asonable acc ommodation. This claim forms the substantive ba sis for Plaintiff’s re quest — in both her Motion for a Tempora ry RestrainingOrde r as we ll as in her Complaint — for an or der ma ndating Def

endants to authorize Plaintiff to work from L os Ang eles duringthe pende ncy of any administrative or litigation proc eeding s and to pay Plaintiff any

owed sa lary

and bene fits. Significa

ntly , howeve r, Plaintiff is unable to demonstrate that she has a substantial likelihood of succ ess as to this principal claim under lying he r pendingreque st for interim injunctive re lief. Pursuant to the Rehabilitation Act, fede ral e mploy ers a re r equire d to make “r easona ble

acc ommodations to t he known phy sical or menta l limi tations of an other wise 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) ). Plaintiff has fa iled to state a mer itorious claim under the Reha bilitation Act for two principal re asons. First, Plaintiff has a sserted he r cla im under Section 504 of the 1 4

In addition to the two rea sons set forth above , the Court notes that Plaintiff has also 1 4 failed to e x haust her a dminist rative r emedies. H ill Decl. ¶¶ 4- 5 (indicatingthat Plaintiff filed a complaint with the Offic e of Civil Rights less than two wee ks befor e this lawsuit was filed, which complaint re mains pendingat the administrative leve l). As such, the Court lac ks jurisdiction to review the me rits of her c laim under the Reha bilitation Act. See Spine lli v. Goss , 446 F.3d 159, 162 ( D.C. Cir. 2006) (administrative e x haustion under the Re habilitation Act is a jurisdictional require ment). While the D.C. Circuit indicated in W agner that the fa ilure to exhaust administ rative r emedies in a Title VI I discrimination action is not disposi tive in consideringa re quest for inter im injunctive relief dur ing the pendenc y of administrative proce eding s, 836 F.2d at 575, the D.C. Circuit has not expl icitly extended that holding to a fede ral e mploy ee’ s disability claims broug ht under the Reha bilitation Act. There a

re important distinctions between Title VI Iand the Reha bilitation Act that may

milit ate a g ainst such an extension; for e x ample, administrative e x haustion under the Re habilitation Act, but not Titl e VI I , is jurisdictional. See Spinelli , 446 F.3d at 162. Nonetheless, f or purpose s of this Memorandum 18Rehabilitation Act. Compl. ¶ 24. The D.C. Circuit has made c lear , howeve r, that Section 501 of

the Rehabilitation Act provides the exclusive remedy for f eder al employ ees a lleg ing disa bility discrimination; “[S ]ection 504 does not provide fe dera l employ ees a n ‘alter native route for r elief under the Rehabilitation Act.’” Taylor v. Small , 350 F.3d 1286, 1292 ( D.C. Cir. 2003). Plaintiff’s claim under

Section 504 there fore fails. Second, eve n assuming Plaintiff ha d alleg ed a pr oper c laim under Sec tion 501 of the Rehabilitation Act, such a c laim is nonetheless unlikely to succe ed for

sever al re asons. For purposes of this discussion, the Court acc epts as true all statements containe d in the medical documentation submitted by Plaintiff in support of her Motion for a Tempora ry RestrainingOrde r. I t remains cle ar, how ever , that Plaintiff is unli kely to preva il on her cla im based on the e vidence in the pre sent rec ord. In order to ultim ately

succe ed on her

claim under

the Rehabilitation Act, Plaintiff must show that she was disabled. Desmond v . Mukase y , 530 F.3d 944, 952- 53 (D.C. Cir. 2008). Given Plaintiff’s asse rtion that she ca n succe ssfully

perf orm the func tions of her job in 1 5 L os Ang eles (i.e ., outside the alleg edly neg ative atmospher e cur

rently exis ting a

t the Washington, D.C. office of PNN), it is unlikely that Plaintiff can de monstrate that she is disabled unde r the Ac t. See, e .g., Hayne

s v. W illiams , 392 F.3d 478, 483 ( D.C. Cir. 2004) (“I f the impac t of an impairment Opinion, the Court shall assume without decidingthat the dec ision in W agner may be appropr iately

extended to Rehabilitation Act claims as we ll. Congr ess re cently

made sig nificant c hang es to the Rehabilitation Act and the 1 5 Americ ans with Disabilities Act eff ective January

1, 2009. SeeADA Ame ndments Act of 2008, Pub.L . No. 110-325, 122 Stat. 3553 (2008). The purpose of the amendme nts was in part to overturn va

rious Supreme Court dec isions that C ong ress view ed as imper missibl y narr owingthe broad sc ope of pr otection af forde d under the Americ an with Disabilities Act. See id. The Court emphasizes that Plaintiff has not argued that the AD A Amendments Ac t of 2008 impact Def endants’ a

naly sis of Plainti ff’ s claim under the Rehabilitation Act nor has Plaintiff other wise briefe d whether

the cha ng es af fec t her Reha

bilitation Act claim. 19can be eliminated by chang ing the addre ss at which an individual wor ks, that impairment is neither perma nent nor longterm.”) ; Nurriddi n v. Bolden , 674 F. Supp. 2d 64, 84-85 (D .D.C. 2009) (findingthat plaintiff was not disabled where he indicate d that he could suc cessf ully perf orm the duties of his job in another location); Rand v. Ge ithner , 609 F. Supp. 2d 97, 103-04 (D .D.C. 2009) (findingimpairment that only limit ed plaintiff’ s ability to work in a spec ific location was not a disability within the meaningof the Reha bilitation Act). Reg ardle ss, even if Plaintiff c an demonstrate that she is disabled, she is unlikely to succe ed in demonstrating that Def endants fa iled to rea sonably acc ommodate her

disability . Section 501(b) of the Reha

bilitation Act requires “ fede ral a g encie s to reasona bly acc ommodate the disabilities of otherwise qua lified employ ees unle ss doing so would c ause a n undue har dship to the ag ency .” Porter v. J

ackson , 668 F. Supp. 2d 22, 233 (D.D .C. 2009). A re asonable acc ommodation is define d as “[m] odifications or a djustments to t he wor k environment, or to the ma nner or circ umstances unde r which the position held or desired is customar ily perf ormed, that e nable a qualified individual with a disability to perfor m the essential func tions of that positi on.” 29 C.F.R. § 1630.2(o)( 1)(ii). In order to determine the appropr iate re asonable acc ommodation, the ag ency should “initiate an informa l, interac tive proce ss with the qualified individual with a disability in need of the ac commodation,” which “ proce ss should identify the pre cise limitations resulting fr om the disability

and potential re asonable acc ommodations that could overcome those limit ations.” Id. § 1630.2(o)( 3). “[A]n employ er is not re quired to provide a n employ ee that acc ommodation [s] he re quests or pre fer s; the employ er ne ed only provide some r easona

ble ac commodation.” Aka v. W ashington Hospital

Center , 156 F.3d 1284, 1305 ( D.C. Cir. 1998) (citations omitted). In this case, the r ecor d indicates that B BGhas, as it should have, initiated a n interac tive
20proce ss with Pl aintiff to deter mine an appr opriate r easona ble ac commodation. Whil e Plaintiff has consistently

insisted that the only

acc eptable solution is to permit her to re locate to or telecommute from the L os Ang eles a

rea , the evidenc e in the pre sent rec ord indicate s that this request is not a

rea sonable a ccommodation under Rehabilitation Act ca se law f or two re asons. Fir st, it does not appea r fr om the rec ord now be fore the Court that Plaintiff can pe rfor m the essential func tions of her job fr om L os Ang eles. As indicated above , Plaintiff’s responsibilities in her curr ent position include re adingnews segments for the shows “News a nd Views” and “N ews B rief,” which ar e both taped in Washington, D.C., as w ell as per formingg ener al assig nments, which involves g oing into the field, conduc ting inter views, and c reating “ packa g es.” Jackson De cl.” ¶ 3. Given the absenc e of a

ny full time PNN employ ees or support staff in L os Ang eles a nd the fa ct that PNN does not perf

orm any on-air w ork in L os Ang eles, id. ¶ 8, Plaintiff is li kely unable to per form her prese nt responsibiliti es fr om the VOA Of fice in L os Ang eles. Indeed, Plaintiff a ppear s to

rec og nize as much, indicatingthat she is “willing to do a ny work that is ava ilable in the L os Ang eles off

ice of VOA” and proposingthat she be pe rmitted to “do the work of the contra ctors in L os Ang eles.” Second Sataki De cl. ¶ 9. B BG , howeve r, “is not obliga ted to ‘bump’ anothe r employ ee in or der to c reate a va canc y for the disa

bled employ ee” nor is it obligated “ to cre ate a new position for the disable d employ ee.” McCreary v. Libbey- Owens-Ford Co. , 132 F.3d 1159, 1165 (7th Cir. 1998). Second, the r equeste d acc ommodation is l ikely to cause BB G undue ha

rdship for these very
same re asons. See, e .g., Bowden v. Clough , 658 F. Supp. 2d 61, 93 (D.D .C. 2009) (plaintiff’s reque st was not a re asonable acc ommodation and would cause undue har dship to employ er “ g iven that [t he ag ency] m ay

not have the te chnolog ical or pe rsonnel re source s to acc ommodate the
21plaintiff’s desire ” to attend mee tings re motely). In this case, ther e is no evidenc e in the re cord that

PNN has the tec hnologic al ca pabilities or resour ces to pe rmit Pl aintiff to telec ommute from L os Ang eles. De spite Plainti ff’ s g ener al asser tion that many

of VOA ’s employ ees “ telecommute to work fr om all around the nation on a regular ba sis,” Pl.’s Reply at 19-20, ther e is no evidenc e that any PNN employ ee a ssigne d to the Washington, D.C. offic e has be en per mitted or is otherwise able to telec ommute from the L os Ang eles VO A offic e. The Court emphasizes that it does not, at this ti me, make a

ny finding s as to whether

the ac commodation offe red by BB G is sufficient unde r the Act; rather, it finds only that Plaintiff has not demonstrated that she is likely to preva il on her claim that she is entitled to work fr om L os Ang eles unde r the Reha bilitation Act. B. Plaintif

f’s Constit utional Claims In addition, Plainti ff is unlikely to succe ed on her

constitutional claims, which, alongwith her Reha bilitation C laim, appea

r to form the ba sis for Plaintiff’s re quest for inter im injunctive relief in the form of a

n order mandatingDef

endants immediately

pay Plaintiff any

salary and benef its owed. First, to the e x tent Plaintiff’s constitutional claims seek to cha lleng e the a lleg ed national orig in and sex-based discr imination, host ile work e nvironment, sexual harassment, a nd reta liation, her cla ims are pr eempted by Title VI I . As the Supreme Court ha s made c lear , Title VI I is the “exclusive reme dy ” for fede ral e mploy ees se ekingto challeng e employ ment discrimination based upon the ir rac e, national or igin, c olor or sex, and to challeng e any repr isal for the employ ee’ s protecte d EEO ac tivity

. Brown v. Gene ral Serv. Admin , 425 U.S. 820, 821 (1976); see also Kiz as v. W

ebster , 707 F.2d 524, 542 ( D.C. Cir. 1983) (“Title VI Iconstitutes the exclusive

reme dy for c laims of employ

ment discrimination by

fede ral e mploy ees subjec t to its protec tion”) (interna l quotation marks omitted). For this re ason, the D.C. Circuit “ha s repe atedly held that
22fede ral e mploy ees ma y not bring suit under the Constituti on for e mploy ment discrimination that is actionable under Title VI I .” Ethnic Employe es of the Library of Congress v. Boorstin , 751 F.2d 1405, 1415 (D.C. Cir. 1985); see also Kizas , 707 F.2d at 543 (fede ral e mploy ees “ may not circ umvent the ‘c are ful and thoroug h reme dial scheme ’ Cong ress orde red f or them”) (quoting Brown , 425 U.S. at 833). Ac cording ly , Title VI Ibars a ll of Plainti ff’ s constitutional claims ag ainst BB G (a nd any claims ag ainst the Individual Defe ndants in their offic ial capa city ), as a sserted in Counts I I , I I I , and IV, to the extent they are based on a lleg ations that Plainti ff wa s discriminated ag ainst in her job. Second, Plaintiff ca

nnot succe ed on Count Iof her Complaint, which alleg es that Def endants infr inge d her r ight to fr ee spe ech in violation of the F irst Amendment by reta liating ag ainst her f

or her persona l politi cal view s, her c riticism of VOA, a nd other unspec ified spee ch made at VOA/PNN, Cong ress, a nd elsewhe re. This c laim is barre d by the Civil S ervic e Refor

m Act (“ CSR A”) , which re quires Plaintiff first exhaust her a dminist rative r emedies a s a jurisdictional prer equisite to bring ing suit. Convertino v. U.S. De p’t of Justice , 393 F. Supp. 2d 42, 47 (D.C. Cir. 2005). Signific antly , there is no alleg ation that Plaintiff herself has eve n initiated the administrative proc eeding s by filing a complaint with the Offic e of Spec ial Counsel with respec t to her a lleg ations in her Complaint. See5 U.S.C. § 1214. Third, Plaintiff cannot suc cee d on her c laims for dama g es ag ainst BB G and the officialcapa city Def endants to the e x tent that they are based on a lleg ed violations of her constitutional rig hts as there is no damag es re medy ag ainst fede ral a g encie s (or off icial ca pacity defe ndants) for alleg ed constitutional remedie s. Taylor v. FDIC , 132 F.3d 753, 768 ( D.C. Cir. 1997). She is simil arly unlikely to succe ed on her

claims for mone tary

damag es ag ainst the Individual
23Def

endants in their individual ca pacities. See B ush v. Lucas , 462 U.S. 367, 368 (1983) (de clining to rec og nize a Bivens claim for f eder al employ ees whose F irst Amendment rig hts are violate d by their super iors); Kittner v. G ates , __ F. Supp. 2d __, 2010 WL1704182, * 8 (D.D.C. Apr il 28, 2010) (notingthat the D.C. Circuit “has de clined to extend Bivens reme dies to constitutional claims arisingfrom wr ong s cover ed by Title VI I , the Privacy

Act, and the Civil Service Reform Act” a nd citing c ases) . Plaintiff has there fore failed to de monstrate a substantial likelihood of

succe ss as to the merits of her rema ining c laims as well. Be cause Plaintiff has failed to de monstrate a substantial likelihood of succ ess on the mer its, the Court’s inquiry

is at an end. A s the D.C. Circuit has observe d, “[g]iven the inade quacy of [P laintiff’s] prospects for succe ss on the merits, there may be no showingof irre para ble injury that would entitle him to inj unctive re lief,” a nd the Court’s inquiry

need g o no further

. Taylor , 56 F.3d at 1507. Acc ording ly , althoug h the Court understands Plaintiff’s pr esent he alth conce rns, abse nt a showing that she is leg ally entitled to the particula

r injunctive re lief she se eks, the Court must DENY Plaintiff’s Motion for a Tempora ry RestrainingOrde r. III. CONCLUSION For the re asons set for

th above, Plaintiff’s Motion for a Tempora ry Restrainingis DENI ED insofar a s the motion seeks issuance of a te mporary restra ining or der. A n appropr iate Or der

acc ompanies this Memorandum Opinion. Date: J une 1, 2010 /s/ COLLE EN KOLLAR-K OTEL LY United States District J udg e

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