Navab-Safavi v. Broadcasting Bd. of Governors
| Decision Date | 03 September 2009 |
| Docket Number | Civil Action No. 08-1225 (ESH). |
| Citation | 650 F.Supp.2d 40 |
| Parties | Melodi NAVAB-SAFAVI, Plaintiff, v. BROADCASTING BOARD OF GOVERNORS, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Richard A. Salzman, Carolyn N. Lerner, Heller, Huron, Chertkof, Lerner, Simon & Salzman, PLLC, Washington, DC, for Plaintiff.
Robin Michelle Meriweather, Assistant United States Attorney, Washington, DC, for Defendants.
Plaintiff Melodi Navab-Safavi worked as a contractor for the Broadcasting Board of Governors ("BBG" or "the Board"), providing translation and other broadcasting support services for the Persian Service and Persian News Network of the Voice of America ("VOA"). Plaintiff brings this action against the BBG and the following past or present BBG officers and employees in their individual capacities: Janice H. Brambilla, Joaquin F. Blaya, Blanquita W. Cullum, James K. Glassman, Wayne D. Greene, D. Jeffrey Hirschberg, Gary C. Hosford, Edward E. Kaufman, Mark McKinnon, Mary Poggioli, Steven J. Simmons, Condoleezza Rice, and Sheila Gandji ("the individual defendants"). Plaintiff alleges that her contract was terminated due to her participation outside of work in an Internet music video protesting the Iraq war, and that this termination violated the First Amendment's Speech Clause and constituted discrimination on the basis of her race/ethnicity and national origin in violation of the Fifth Amendment's Due Process Clause. The individual defendants have moved to dismiss the claims against them pursuant to Federal Rules of Civil Procedure 12(b)(2), (5), and (6).1 For the reasons set forth below, defendants' motion will be granted in part and denied in part.
As alleged in the complaint, plaintiff is a U.S. citizen and resident who was born in Iran. (Compl. ¶ 2.) She is fluent in English, Farsi (i.e., Persian), Norwegian, and Swedish. (Id. ¶ 5.) Beginning in July 2004 plaintiff provided services as a contractor for the BBG. (Id. ¶ 2.) The BBG is a federal agency charged with overseeing all U.S. government and government-sponsored non-military international broadcasting services, including VOA. (Id. ¶ 3.) See generally 22 U.S.C. § 6204. The Board is a bipartisan independent body composed of nine voting members: eight Governors appointed by the President (one of whom is appointed as Chairman) and the Secretary of State. See 22 U.S.C. § 6203(b). At all times relevant to this action, defendant Glassman was Chairman of the Board; defendants Blaya, Cullum, Hirschberg, Kaufman, McKinnon and Simmons were Governors who also sat on the Board; defendant Rice was a member of the Board by virtue of her position as Secretary of State; and defendants Brambilla, Gandji, Greene, Hosford, and Poggioli were BBG employees. (Id. ¶ 4.)
Under her contract with BBG, plaintiff agreed to provide translation and other assigned services to VOA's Persian Service. (Compl. ¶ 5.) The Persian Service, of which defendant Gandji was the director, produces news programs, features, and talk shows and, at the time plaintiff worked there, engaged at least twenty independent contractors for VOA productions. (Id. ¶¶ 5, 18.) The "vast majority" of plaintiff's work was to translate material for VOA broadcasts from English into Farsi and to provide voiceover services (i.e., narrating text that has already been approved by an editor). (Id. ¶¶ 5, 17.) From July 2004 through June 2006, plaintiff worked on VOA radio broadcasts; from June 2006 through her termination, plaintiff worked on VOA television broadcasts. (Id. ¶ 5.) For the television productions, plaintiff continued to serve primarily as a translator. (Id.) Although she did provide some technical support for the production of newscasts, plaintiff never appeared on a VOA television broadcast in that capacity. (Id.) All of her work on translations, voiceovers, and other production services was reviewed by a VOA editor or producer. (Id. ¶ 6.)
As a BBG contractor, plaintiff performed in a "consistently outstanding manner," and her contract was repeatedly renewed. (Compl. ¶ 7.) Joy Wagner, a VOA manager who frequently oversaw plaintiff's work as her direct supervisor, described plaintiff as "`by far one of the best translators in the Persian Service,'" whose "`work habits [were] impeccable'" and was, "`above all[,] . . . a team player'" who "`NEVER causes problems, [and] is always cooperative and willing to help.'" (Id. (quoting Wagner's alleged statements); see also id. ¶ 17.) Similarly, Amy Katz, an executive producer for VOA's Persian News Network, stated that plaintiff's "`work and work ethic are excellent on all levels'" and "`[h]er translation and writing won rave reviews from our editors, as did her ability to adapt the printed word for television.'" (Id. ¶ 7 (quoting Katz's alleged statements).) The producer also highlighted how plaintiff's "`upbeat attitude, radiant smile and team spirit make her a pleasure to have around.'" (Id.) Another VOA manager offered praise for plaintiff's "`acumen, intelligence, thoroughness and honesty. . . .'" (Id. ().) Many agents of the BBG discussed with plaintiff the possibility of "maintaining a long-term relationship with the agency." (Id. ¶ 9.) At no time prior to her termination did VOA, the Board, or any individual defendant indicate that plaintiff's performance "was less than fully satisfactory, or that her services would no longer be required." (Id.)
As a private citizen, plaintiff is a member of a pop band named Abjeez, whose other members reside in Sweden. (Compl. ¶ 10.) Abjeez, which is "banned in Iran," makes "songs and videos regarding, among other things, women's rights and other social problems in Iran." (Id.) Plaintiff never used VOA facilities or resources in any of the band's activities. (Id. ¶ 12.) VOA managers knew of and encouraged plaintiff's participation in Abjeez and broadcasted the band's music videos on occasion. (Id. ¶ 11.) VOA also televised a piece featuring Abjeez, during which plaintiff was interviewed as a guest. (Id. ¶ 5.) This was the only time plaintiff ever appeared on a VOA television broadcast. (Id.)
In early July 2007, Abjeez produced and appeared in a music video entitled "DemoKracy" ("the video"). (Compl. ¶ 13.) The video "protested U.S. involvement in the Iraq War" and contains footage of wounded U.S. soldiers, injured and dead Iraqi civilians, and coffins draped in U.S. flags. (Id.) The song does not mention VOA, and the video does not portray VOA activities or employees, nor does it identify by name or professional affiliation any of the artists involved with the video. (Id. ¶ 14.) The band has not sold or commercially distributed the video. (Id.) Plaintiff used no VOA resources to make the video and participated in its production "only during non-work hours and on her days off." (Id.) Plaintiff's husband, Saman Arbabi, also helped to produce the video; although he is a BBG employee working in VOA's Persian Service, his participation was also "exclusively on his own time using his own resources." (Id. ¶ 22.)
On June 26, 2007, the Board renewed plaintiff's contract and authorized additional funds to be paid pursuant to that contract. (Compl. ¶ 8.) On July 9, plaintiff's music video was posted to the publicly accessible Internet website YouTube. (Id. ¶ 13.) Shortly thereafter, U.S. Senator Tom Coburn learned about the video and, "either directly or through his staff, used his influence as a Senator to lobby BBG officials to punish those people affiliated with the video." (Id. ¶ 21.) When Gandji learned about Arbabi's involvement in the video, she and Poggioli, an official in the BBG's Labor Relations office, investigated the circumstances surrounding the making of the video. (Id. ¶ 22.) They met with Arbabi and pressured him to resign, telling him that "even though they had verified that he had not used any VOA resources to produce the video, BBG management did not want `a scandal on its hands' because it might affect Congressional funding of the agency." (Id.) A meeting of the Board was also convened to review and discuss the video; during this meeting, members of the Board "expressed their view that the DemoKracy video was `anti-American.'" (Id. ¶ 16.)
On July 18, 2007, Gandji and Poggioli met again with Arbabi. (Compl. ¶ 22.) During this second meeting, Poggioli informed Arbabi that the Board had met to discuss the video and "judged it to be `anti-American,'" and that the Board members saw Arbabi "`as a liability.'" (Id.) Gandji also told Arbabi that "Senator Coburn was `leading the attack' to take action against those people involved in producing it." (Id.) Arbabi refused to resign. (Id.) Around this time, Joy Wagner, plaintiff's direct supervisor, also learned that the Board had concerns about the video, and she wrote to Gandji to clarify plaintiff's "limited job responsibilities." (Id. ¶ 17.) Wagner allegedly explained that plaintiff was not a journalist, and that she only provided translation and narration services, that she never "`appeared on-air as a[] VOA employee,'" and that she specifically asked that VOA "`never use her real name on air,'" a request that had been honored. (Id. (quoting Wagner's alleged writing).)
On July 19, 2007, plaintiff was summoned to a meeting with Benjamin Jones Keeling, Staff Director of the Persian News Network, and Gandji, Greene, and Hosford. (Compl. ¶ 18.) Hosford allegedly told plaintiff, " " (Id. (quoting Hosford's alleged statements).) Hosford...
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