Kelley v. Shalala
Case Date: 01/30/1998
Court: United States Court of Appeals
Docket No: 97-1090
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United States Court of Appeals United States Court of Appeals For the First Circuit For the First Circuit ____________________ No. 97-1090 VINCENT DENOVELLIS, Plaintiff, Appellant, v. DONNA E. SHALALA, SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee. ____________________ No. 97-1091 PAUL H. KELLEY, Plaintiff, Appellant, v. DONNA E. SHALALA, SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee. ____________________ No. 97-1092 LAURENTINA JANEY-BURRELL, Plaintiff, Appellant, v. DONNA E. SHALALA, SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Patti B. Saris, U.S. District Judge] ___________________ ____________________ Before Stahl, Circuit Judge, _____________ Bownes, Senior Circuit Judge, ____________________ and Lynch, Circuit Judge. _____________ ____________________ Phyllis Fine Menken for appellant Janey-Burrell. Jodie ___________________ _____ Grossman for appellants DeNovellis and Kelley. ________ John A. Capin, Assistant U.S. Attorney, with whom Donald _____________ ______ K. Stern, United States Attorney, was on brief for appellee. ________ ____________________ January 29, 1998 ____________________ -3- 3 LYNCH, Circuit Judge. During the course of a LYNCH, Circuit Judge. ______________ nationwide restructuring of the United States Department of Health and Human Services (HHS) in 1996, the Administration for Children and Families reorganized its ten regional offices into five major "hub" offices and adjunct offices. Although Boston has been affectionately referred to as the "Hub of the Universe," the Boston field office lost out to larger urban centers and was not designated a hub office. As a result, the Boston office was directed to shrink its size, and did so by reorganizing from two levels of managerial employees to one, accomplishing this by eliminating its middle management positions. Five middle management employees in the Boston office were given the option of either accepting a demotion or laterally transferring to the same positions at locations other than Boston. Three of these employees, Vincent DeNovellis, Paul Kelley, and Laurentina Janey-Burrell, sued HHS for violations of Section 704 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-3(a), the Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621-34, and the Civil Service Reform Act of 1978 (CSRA), Pub. L. No. 95-454, 92 Stat. 1111 (codified as amended in various sections of 5 U.S.C.), saying that the proposed reassignments constituted illegal age discrimination by forcing them to retire prematurely, and that HHS violated the CSRA by failing to follow proper -3- 3 procedures for a reduction-in-force. Janey-Burrell and DeNovellis also said that the reassignment decisions were made in retaliation for prior EEO claims they had filed which alleged racial discrimination by their supervisor. The plaintiffs have chosen as their battlefield the equitable plains of preliminary injunctive relief, and there they falter. All three lost in their applications before the district court for issuance of preliminary injunctions under Fed. R. Civ. P. 60(b). Although Janey-Burrell obtained from a different district court judge, under Fed. R. Civ. P. 62(c), a stay pending appeal of the denial of the preliminary injunction, which the parties have treated as freezing Janey- Burrell into her pre-reassignment position pending this appeal, that stay is not the subject of this appeal -- nor - could it be by its own terms. This appeal is from the denial of the preliminary injunctions under Fed. R. Civ. P. 60(b). In the interim, DeNovellis and Kelley have retired. We affirm. The claims of DeNovellis and Kelley for preliminary injunctive relief are now moot because of their retirement. As for Janey-Burrell, the district court did not abuse its discretion in denying the injunction. I I We describe the facts as to Janey-Burrell; we need not discuss DeNovellis and Kelley because their claims are moot. -4- 4 In 1993, Vice President Gore instituted the National Performance Review, which attempted to make federal agencies more cost-efficient and responsive to the public. Many HHS agencies have since undergone extensive review and reorganization, including the Administration for Children and Families (ACF), which administers over sixty federal human service programs, including Head Start and Aid to Families with Dependent Children. In 1994, HHS initiated a plan to streamline the ACF bureaucracy by reducing the number of administrative centers from ten regional offices to five hub offices. The five regional offices not selected as hub offices, including Boston, were directed to eliminate management positions and reorganize so they would have one level of management instead of the extant two levels. In October 1994, the Boston office implemented a plan to reorganize into five goal-driven work-groups in accordance with the five goals of the ACF reorganization plan. The five goal leaders and the Deputy Regional Administrator now comprise the sole management level at the Boston ACF office. The five goal leaders and the Deputy Regional Administrator are all over forty years of age. Plaintiff Janey-Burrell was a mid-level manager at ACF at the GS-14 level prior to the reorganization. In November 1993, Janey-Burrell had filed an EEO complaint against her supervisor, Regional Administrator Hugh Galligan, -5- 5 and the Assistant Regional Administrator, Richard Stirling, alleging race and gender discrimination. In April 1994, Regional Administrator Hugh Galligan reassigned Janey-Burrell from her position of record to a temporary assignment without specific duties. In July 1994, Janey-Burrell filed a second EEO complaint against Galligan when he placed her on temporary assignment, alleging that this action was in retaliation for having filed her first EEO complaint. In October 1994, when the Boston regional office implemented its reorganization plan, Janey-Burrell was not chosen to be a goal leader. Along with the other mid-level managers not selected to be goal leaders, Janey-Burrell was permanently placed on temporary assignment pending reassignment to another permanent position within the agency. Janey-Burrell was assigned to the Office of Regional Director Philip W. Johnston, where she served as the Department's Violence Prevention and Community Based Program Coordinator. During 1995 and 1996, in order to continue the streamlining process, the Boston office sought volunteers to relocate to other offices around the country. Four employees volunteered to relocate, but Janey-Burrell did not. This left five GS-14 mid-level managers remaining within the Boston office who had not been chosen to be goal leaders and whose positions were being eliminated by the reorganization. In June 1996, Diann Dawson, the ACF Regional Operations -6- 6 Director, decided to impose "directed reassignments" on those five remaining GS-14 mid-level managers, including Janey- Burrell, to equivalent positions in the hub offices around the country. On June 11, 1996, Dawson wrote a letter to the five middle-managers in which she proposed their reassignment to different locations. Dawson's letter to Janey-Burrell proposed that Janey-Burrell fill a vacancy in the ACF office in San Francisco. The others were asked to fill vacancies in Chicago, Dallas, New York, and Atlanta. Dawson requested that Janey-Burrell and the others respond to the proposed reassignments within fifteen days of receipt of the letter. Janey-Burrell responded by letter on June 24, 1996, in which she rejected the reassignment. Among her reasons was that it would be harder for her to pursue her EEO claims against Galligan were she in San Francisco instead of Boston. On July 9, 1996, Janey-Burrell received Dawson's response. Dawson said she had received Janey-Burrell's letter and had considered Janey-Burrell's objections to reassignment. Dawson wrote she had nevertheless decided to reassign Janey-Burrell to San Francisco effective August 18, 1996. On August 13, 1996, Janey-Burrell was offered the option of staying in Boston. Before this date, one mid-level manager had enquired as to whether she could stay in Boston -7- 7 if she took a downgrade to a non-supervisory GS-13 position. This request was granted and Galligan, unsolicited, wrote a letter to Janey-Burrell notifying her that this had happened. He concluded, "If you are interested in doing the same, let me know." For Janey-Burrell, this downgrade would have allowed her to stay in Boston in a GS-13 position at a $13,000 reduction in annual pay. On August 16, 1996, Janey- Burrell filed a complaint with the district court seeking a temporary restraining order and preliminary injunctive relief to prevent her reassignment. Chief Judge Tauro granted the temporary restraining order. On September 30, 1996, Judge Saris denied plaintiff's application for a preliminary injunction. Plaintiff filed a notice of appeal and a motion for stay pending appeal under Fed. R. Civ. P. 62(c). On November 22, 1996, the motion was heard by Judge Gertner, to whom the case had been transferred, who granted the stay pending appeal.1 Janey-Burrell has remained in her GS-14 supervisory position since that time, even though ACF has otherwise completed its ____________________ 1. The dissent argues that Judge Gertner's ruling was in effect a reconsideration of Judge Saris's denial of the injunction under Fed R. Civ. P. 60(b). But Judge Gertner did not purport to grant relief under Rule 60(b); she explicitly stated that she was granting relief pending the appeal under Rule 62(c). A new district court judge in a case may reconsider a prior denial of a preliminary injunction. If a court wishes to reconsider an earlier ruling under the Rule 60(b) power, however, it should be explicit about it. The new district court judge here explicitly did not reconsider the prior ruling. -8- 8 reorganization. The defendants have informed this court that the choice of going to San Francisco or remaining in Boston as a GS-13 employee is still open to her. II II Janey-Burrell's claim fails for a number of reasons. As the district court found, she has not demonstrated irreparable injury and, save for her civil service claims (as to which she has not exhausted her administrative remedies), she has not demonstrated probability of success on the merits. We do not reach the other criteria for injunctive relief. A. Preliminary Injunction Standard _______________________________ We repeat and apply here the familiar standard for issuance of preliminary injunctive relief. A district court must weigh four factors: (1) the likelihood of the movant's success on the merits; (2) the potential for irreparable harm to the movant; (3) a balancing of the relevant equities, i.e., the hardship to the nonmovant if the injunction issues as contrasted with the hardship to the movant if interim relief is withheld; and (4) the effect on the public interest of a grant or denial of the injunction. See Gately v. ___ ______ Massachusetts, 2 F.3d 1221, 1224 (1st Cir. 1993). The party _____________ appealing a grant or denial of a preliminary injunction bears the heavy burden of showing that the district court committed a mistake of law or abused its discretion. See id. at 1225. ___ ___ -9- 9 This case implicates two related standards for the issuance of injunctive relief in employment law cases. The first standard governs issuance of injunctive relief on claims by federal government employees that their civil service rights have been violated. This is controlled by Sampson v. Murray, 415 U.S. 61 (1974), which requires a very _______ ______ strong showing of irreparable injury. This strong showing is on account of the "well-established rule that the Government has traditionally been granted the widest latitude in the dispatch of its own internal affairs." Id. at 83 (citation ___ and internal quotation marks omitted). Sampson stands for _______ the proposition that, before enjoining a government agency from dismissing a civil service employee who has not exhausted her administrative remedies, a court must find that the facts underlying the employee's allegations of irreparable harm are genuinely extraordinary. See Gately, 2 ___ ______ F.3d at 1232; see also, Chilcott v. Orr, 747 F.2d 29 (1st ________ ________ ___ Cir. 1984) (applying Sampson in denial of injunction sought _______ by plaintiffs being discharged from Air Force who did not first seek relief before appropriate Air Force administrative boards); cf. United States v. Fausto, 484 U.S. 439, 454-55 ___ ______________ ______ (1988) (applying similar principles in claim for back pay); Bush v. Lucas, 462 U.S. 367, 388-389 (1983) (applying similar ____ _____ principles in claim to reverse demotion). -10- 10 The second standard governs issuance of injunctive relief in discrimination claims brought by government employees where no civil service claim is involved. In this circuit, this is controlled by Gately, which does not require ______ as high a showing of irreparable harm as Sampson. That is _______ because of the different policies and circumstances that attend discrimination cases, particularly where no interests in protecting the processes of the civil service system are involved. See Gately, 2 F.3d at 1233-34.2 ___ ______ ____________________ 2. We agree that there is a strong legislative policy prohibiting discrimination based on age and other forbidden factors. The prohibiting of retaliation against those who bring discrimination claims, while not primarily vindicating such anti-discrimination policies, is important in effectuating them. See Tanca v. Nordberg, 98 F.3d 680 (1st ___ _____ ________ Cir. 1996) (mixed motive provisions of Civil Rights Act of 1991, which apply to discrimination claims, do not apply to retaliation claims). The issue here is not whether these policies are important, they plainly are, but the extent to which they alter the rules as to issuance of preliminary injunctive relief where the full array of remedies to combat age discrimination and retaliation is available after trial on the merits. In this circuit, the rules governing the issuance of injunctive relief are not altered because the plaintiff makes a discrimination claim. Such plaintiffs must still satisfy the traditional test in order to obtain injunctive relief. See Equal Employment Opportunity Comm'n v. Astra USA, Inc., ___ ____________________________________ ________________ 94 F.3d 738 (1st Cir. 1996). In Astra, the question was _____ whether the EEOC was required to meet the traditional test for injunctive relief or whether it needed only satisfy the criteria established in 706(f)(2) of Title VII, which authorized the agency to seek injunctive relief in the public interest. We flatly rejected the views of other circuits that the traditional test could be relaxed in that situation, holding that even the EEOC was required to show irreparable harm and the inadequacy of legal remedies in order to obtain a preliminary injunction. See Astra, 94 F.3d at 743; see ___ _____ ___ also Cohen v. Brown University, 991 F.2d 888 (1st Cir. 1988) ____ _____ ________________ (requiring traditional test to be satisfied in Title IX -11- 11 Gately holds that a government-employee plaintiff ______ may obtain injunctive relief, in the district court's discretion, upon demonstrating sufficient irreparable harm, taking into consideration "the wide latitude traditionally granted the government in dispatching its own internal affairs." Gately, 2 F.3d at 1234. In contrast, here, we are ______ faced with the question of whether the district court abused its discretion in refusing to grant injunctive relief against ________ the government -- a much easier question. In this case involving both civil service claims and discrimination claims, the question may arise whether Sampson or Gately presents the proper standard for a district _______ ______ court to apply.3 We need not consider this question until it is squarely before us. Even under the lesser Gately ______ standard, the district court was well within its discretion in refusing to grant a preliminary injunction against the government in this case. B. Irreparable Injury __________________ On appeal, Janey-Burrell bases her claim of irreparable injury on five grounds: she will suffer a salary ____________________ suit); Castro v. United States, 775 F.2d 399 (1st Cir. 1985) ______ _____________ (requiring traditional test to be satisfied in ADEA suit). If the EEOC itself is required to meet the traditional test, then Janey-Burrell must be as well. 3. Gately squarely holds that Sampson's heightened standard ______ _______ is not limited to probationary employees, see id. at 1232-33, ___ ___ as the dissent would have. -12- 12 loss of $13,000 if she stays in Boston; she will suffer emotional distress; there will be a loss of prestige; her ability to work with counsel on pursuit of her claims will be impaired if she is in San Francisco; and the lack of an injunction will have a chilling effect on others who would understand this job action to be in retaliation for her complaints of discrimination. Neither in sum nor in individual parts do these factors amount to irreparable injury on the facts of this case. We start with the obvious. It is Janey-Burrell's choice whether she accepts the transfer to San Francisco or whether she remains in Boston at a reduced salary. If she accepts the transfer, there is no diminution in pay or loss of status. If she stays in Boston, she will suffer a diminution in pay, but will recover all of that pay and perhaps other damages if she prevails on the merits. Even under traditional Rule 65 standards, a temporary loss of income which may be recovered later does not usually constitute irreparable injury. See Sampson, 415 U.S. at 89- ___ _______ 92; Gately, 2 F.3d at 1232. ______ In addition, while Janey-Burrell may recover compensation for her emotional distress claim if she prevails on the merits, the fact that an employee may be psychologically troubled by an adverse job action does not usually constitute irreparable injury warranting injunctive -13- 13 relief. See Soldevila v. Secretary of Agriculture, 512 F.2d ___ _________ ________________________ 427, 430 (1st Cir. 1975). Janey-Burrell's assertion that she will suffer a loss of status, even if true, is also insufficient to show irreparable injury, as HHS has given her a perfectly plausible explanation as to the reasons for the job action. This case, where a plausible explanation for the job loss is given, is considerably weaker than Sampson, where _______ no explanation was given and the harm to reputation from an unexplained discharge was not enough to create irreparable injury. We are left with the arguments about chilling effect and interference with the ability to work with counsel. The breadth of these arguments proves too much and has little attraction. A chilling effect argument may be made in every case alleging retaliation. It cannot be the rule that irreparable injury may be established simply by bringing a retaliation claim and then saying that interim relief is necessary to prevent others from being intimidated from contributing to the plaintiff's case or from filing their own claims. Here, Janey-Burrell did not offer one whit of evidence as to any chilling effect nor did she argue the point in her motions for preliminary injunction or for stay pending appeal.4 Rather, the chilling effect issue was first ____________________ 4. We do not reach the question of whether Janey-Burrell has waived this argument in light of our disposition. -14- 14 raised sua sponte by the second district court judge in issuing the stay pending appeal. Plaintiff is basically arguing for a per se rule that a conclusory assertion made by the plaintiff for the first time in appellate briefs is sufficient to establish a chilling effect and to obtain injunctive relief. We reject that notion and the notion that plaintiff need adduce no evidence on this point. This is not to say that a retaliation claim may never give rise to a showing of irreparable injury, but only that it is a highly fact specific inquiry. See Holt v. ___ ____ Continental Group, Inc., 708 F.2d 87, 90-91 (2d Cir. 1983) ________________________ (allegations of chilling effect subject to Sampson standards _______ in cases involving the federal government); EEOC v. Anchor ____ ______ Hocking Corp., 666 F.2d 1037, 1043-44 (6th Cir. 1981) ______________ (examining allegations of chilling effect in light of facts); Bonds v. Heyman, 950 F. Supp. 1202, 1215 n. 13 (D.D.C. 1997) _____ ______ (explaining Holt as requiring that chilling effect in cases ____ involving the federal government must be "likely" and, in combination with other circumstances, "extraordinary").5 In ____________________ 5. The dissent cites Marxe v. Jackson, 833 F.2d 1121 (3d _____ _______ Cir. 1987) in support the position that the potential chilling effect in this case constitutes irreparable harm. In Marxe, the plaintiff was fired by her employer against _____ whom she had previously filed EEO charges. She subsequently brought suit for retaliatory firing. The district court granted a preliminary injunction and required the employer to reinstate the plaintiff during the litigation in part because of concern about the potential chilling effect that might otherwise occur. See id. at 1124. The Third Circuit ___ ___ reversed. The court said that plaintiff had failed to adduce -15- 15 any event, the chilling effect argument made by Janey-Burrell goes primarily to the effect on third parties, not to plaintiff's own injury. In this case, that argument as to the effect on third parties must be viewed in the context that the federal government will be deeply affected by judicial interference with its efforts to streamline its operations, particularly where the streamlining is in response to pressure from voters to do so. There are no facts here to support anything other than a hypothetical chilling effect, and that is plainly inadequate. Considering the arguments before Judge Saris, we can say with great confidence that she did not abuse her discretion in refusing to grant interim equitable relief. As to the effect of a transfer on Janey-Burrell's ability to work with counsel, every case involving a transfer to another location involves this effect. There is no irreparable injury on this factor alone; many litigants have counsel in other locations and the Federal Rules of Civil Procedure were designed to permit discovery throughout the land. More importantly, it is Janey-Burrell's choice to accept the transfer or stay in Boston. If Janey-Burrell chooses not to accept the transfer, she will be located in Boston with her counsel. ____________________ any evidence that a chilling effect might occur and that consequently there was no irreparable harm. See id. at 1125- ___ ___ 26. -16- 16 C. Probability of Success ______________________ Janey-Burrell has three claims under the ADEA: the transfers would effect an impermissible discriminatory impact; she suffered disparate treatment; and the decision to transfer her was motivated by retaliation. Only the third theory warrants much discussion. As to the first two theories, Judge Saris has appropriately noted: [T]he evidence demonstrates that two employees over sixty were reassigned while two over sixty were retained as group leaders. The Deputy Regional Administrator is a sixty-four year old. One forty-something year old was reassigned, while another was retained. A fifty-eight year old was reassigned while a fifty-two year old was retained. These statistics are not adequate to support an inference that the reassignment decision was based on discriminatory age-based criterion. DeNovellis v. Shalala, No. 96-11655-PBS at 8-9 (D. Mass. __________ _______ Sept. 30, 1996) (order denying preliminary injunction). Other than the statistics, there is little evidence, direct or indirect, of discriminatory intent.6 ____________________ 6. We note the civil service process may work to plaintiff's favor in that she may have an administrative remedy. Notably, Judge Saris found Janey-Burrell had a probability of success on her CSRA claim. Even so, in Sampson, the Supreme _______ Court stated that the avoidance of the disruption of the civil service administrative process was a significant factor against issuing injunctive relief in cases involving civil service claims. See Sampson, 415 U.S. at 83-84; see also, ___ _______ ________ Bush v. Lucas, 462 U.S. 367 (1983) (assuming violation of ____ _____ First Amendment and declining to create judicial cause of action which would circumvent civil service review); Arnett ______ v. Kennedy, 416 U.S. 134 (1974) (no constitutional right to _______ hearing prior to suspension or discharge from government -17- 17 As to the retaliation claims, in order to show probability of success, Janey-Burrell must establish the existence of a causal connection between her filing the two EEO complaints and the subsequent choice she is forced to make between transfer or demotion.7 See Randlett v. Shalala, ___ ________ _______ 118 F.3d 857, 862-63 (1st Cir. 1997); Fennell v. First Step _______ __________ Design, Ltd., 83 F.3d 526, 535 (1st Cir. 1996). Janey- _____________ Burrell offers little evidence of such a causal relationship. Mere conjecture and unsupported allegations will not suffice. Rather, she must demonstrate the existence of specific facts that would enable a finding that explanatory reasons offered by the government for her proposed transfer were mere pretext for its true motive of retaliation against her. See St. ___ ___ Mary's Honor Ctr. v. Hicks, 509 U.S. 502 508-12 (1993); __________________ _____ Mesnick v. General Elec. Co., 950 F.2d 816, 822-29 (1st Cir. _______ _________________ 1991). She falls short of showing probability of success on the present record.8 ____________________ service even for a non-probationary employee). 7. If plaintiff wins on her retaliation claim, she will be compensated and her attorneys will receive reasonable attorney's fees. Congress has chosen the route of awarding attorneys fees to successful plaintiffs to dispel disincentives to the bringing of meritorious suits. 8. Janey-Burrell claims she was subject to two acts of retaliation, the first coming when Galligan detailed her to a temporary assignment in April 1994, the second coming when she was given the choice between transferring to San Francisco or staying in Boston. Judge Saris focused on the first act of claimed retaliation and appropriately found Janey-Burrell had not shown a probability of success because -18- 18 On the same date that Janey-Burrell was reassigned to San Francisco, the four other middle managers on temporary assignment were also reassigned to other cities. Each was given the same choice of accepting reassignment or of accepting a downgrade. Three of the five had not previously filed any discrimination complaint.9 Even if the evidence is read to suggest a degree of personal animosity between Janey- Burrell and Galligan, that animus did not cause her to be treated any differently than her similarly situated co- workers. Further, personal animosity may have many origins other than a desire to retaliate. The decision made was categorical, not individual.10 All five GS-14 managers not selected to be a goal leader had been placed on temporary assignment in October 1994. All five were given the choice of being reassigned to an equal position in another city or a ____________________ she was ultimately assigned to a significant position, as Violence Prevention and Community Based Program Coordinator, in the office of former regional director Philip W. Johnston. 9. DeNovellis filed a claim of discrimination which he has lost on the merits. See DeNovellis v. Shalala, 124 F.3d 298 ___ __________ _______ (1st Cir. 1997). 10. Galligan made recommendations as to who would be selected to be a goal leader in the reorganized ACF. Galligan's affidavit states that he made the recommendations without regard to age, race, or ethnicity, and without regard to whether any of the candidates had filed EEO claims against him. The record shows that the five selected to be goal leaders are all over forty years of age, include both women and men, and both African-Americans and whites. Janey- Burrell offers no evidence suggesting that Galligan was motivated by discriminatory animus or a desire to retaliate in making these recommendations. -19- 19 demotion while staying in Boston in June 1996. All were given the opportunity to respond to the proposed reassignment as well. Those responses were reviewed by the Regional Director, not Galligan, and she, not Galligan, made the final decision to reassign (even assuming Galligan had some influence). The Regional Director was also uninvolved in the prior claims of discrimination. Under these circumstances, proof of causation is insufficient to show probability of success, as is required for preliminary injunctive relief. III III After losing their motions for preliminary injunction, DeNovellis and Kelley chose to retire. Their claims for preliminary injunctive relief are moot. See New ___ ___ Hampshire Right to Life Political Action Comm. v. Gardner, 99 ______________________________________________ _______ F.3d 8, 17-18 (1st Cir. 1996). IV IV The orders of the district court denying preliminary injunctive relief are affirmed; the "stay" as to Janey-Burrell is ended. Costs to appellees. Dissent follows. -20- 20 BOWNES, Senior Circuit Judge (dissenting). The BOWNES, Senior Circuit Judge (dissenting). ______________________ majority concludes that plaintiff Janey-Burrell has failed to demonstrate irreparable injury and probability of success on the merits, both of which are, of course, necessary for a preliminary injunction. I disagree with the majority on both issues and therefore respectfully dissent. I I Before discussing the application of the irreparable injury requirement to Janey-Burrell, I must first note my disagreement with the standard the majority applies in assessing whether a preliminary injunction should be granted in a case asserting discrimination under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. 2000e, and under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621-34. I believe a government employee in such cases should be held to the same standard as a private sector employee under like circumstances. The standard that should be applied to all employees -- whether they work for the government or for the private sector -- is the "familiar [four-factor] standard for issuance of preliminary injunctive relief": irreparable injury, likelihood of success on the merits, balancing the equities, and the public interest. See ante at 9. ___ ____ There is no reason to treat the government as employer any differently than a private employer when it comes to discrimination under Title VII or the ADEA. Discrimination by governmental employers is at least as serious as discrimination -21- 21 by non-governmental employers. See Olmstead v. United States, ___ ________ _____________ 277 U.S. 438, 485 (1928) ("In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. . . . If the government becomes a lawbreaker, it breeds contempt for law.") (Brandeis, J., dissenting). A A The majority envisions three separate tests for the issuance of a preliminary injunction, depending on the circumstances. The "familiar [four-factor] standard," ante at 9, ____ without any additional hurdle, would apply to the ordinary case, presumably including a discrimination case against a private sector employer. The majority would apply a second standard in cases involving government employees asserting only "civil service" claims under the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111 (codified as amended in various sections of 5 U.S.C.) (CSRA). Such employees would be required to make a "genuinely extraordinary" showing of irreparable injury, as set forth in Sampson v. Murray, 415 U.S. 61, 92 n.68 (1974). See _______ ______ ___ -22- 22 ante at 10. I agree with the majority's analysis to this point.1 ____ In between the foregoing two standards, the majority would apply a third, intermediate standard in the case of ____________________ 1. I believe, however, that Sampson's heightened standard and _______ the policies it relies on are applicable only in the context of probationary government employees. In cases of non-probationary ____________ employees, I would apply nothing more than "the familiar [four- factor] standard for issuance of preliminary injunctive relief," ante at 9, the same as we would apply to non-governmental ____ employees. Other courts have held that Sampson's heightened _______ standard of irreparable injury applies only to the probationary employee "type of case." See Oglala Sioux Tribe v. Andrus, 603 ___ __________________ ______ F.2d 707, 712 (8th 1979); Garza v. Texas Educ. Found., 565 F.2d _____ ___________________ 909, 911 (5th Cir. 1978). According to the majority, "Gately squarely holds ______ that Sampson's heightened standard is not limited to probationary _______ employees." Ante at 12 n.3 (citing Gately, 2 F.3d at 1232-33). ____ ______ Gately's holding is not so clear as the majority would like it to ______ be. Gately relied heavily on Sampson, 415 U.S. at 83, 91-92, and ______ _______ probationary employees constituted the "type of case" to which Sampson applied. _______ One need look no further than the same page of the Gately opinion cited by the majority. As we noted in Gately, the ______ ______ Court in Sampson _______ repeatedly referred to the fact-bound nature of its holding. For instance, the Court stated that the plaintiff's showing "falls far short of the type of injury which is a necessary predicate to the issuance of a temporary injunction in __ this type of case." And, in the footnote _________________ immediately following this holding, the Court stated that "[u]se of a court's injunctive power . . . , when discharge of probationary employees is an issue, should be reserved for [the genuinely extraordinary] situation." Gately, 2 F.3d at 1233 (quoting Sampson, 415 U.S. at 91-92) ______ _______ (emphasis and alterations in Gately). Thus, the "type of case" ______ to which Sampson's heightened standard applies is the discharge _______ of a probationary employee who has raised only civil service claims. -23- 23 "discrimination claims brought by government employees where no civil service claim is involved."2 Ante at 10. Such employees ____ must meet a higher standard than they would if the discriminating employer had been a nongovernmental entity: the government employee must "demonstrat[e] sufficient irreparable harm, taking into consideration 'the wide latitude traditionally granted the government in dispatching its own internal affairs.'" Ante at 12 ____ (quoting Gately, 2 F.3d at 1234).3 Thus, according to the ______ majority, if the plaintiff happens to be a government employee rather than a private sector employee, a fifth factor gets added to the "familiar" four-factor test for preliminary injunctions. I recognize that, in a case involving government employees alleging discrimination, Gately did apply the "wide ______ latitude" language quoted by the majority.4 I also recognize ____________________ 2. Perhaps some difficulty in this area of the law is caused by the dual meaning of the term "civil service." It is important to distinguish between a government employee raising a civil service claim under the CSRA, as was the case in Sampson v. Murray, 415 _______ ______ U.S. 61 (1974), and a so-called "civil service" employee who raises a discrimination claim against a governmental employer under Title VII or the ADEA, as Janey-Burrell has. 3. It is worth noting that this "wide latitude" was offered as the rationale for the "genuinely extraordinary" irreparable injury showing that was required in pure CSRA cases. See ante at ___ ____ 10. It is anomalous that it reappears as part of the intermediate Gately standard. ______ 4. In addition, Gately would appear to require government ______ employees attempting to establish irreparable harm also to "point to factors sufficient to overcome 'the traditional unwillingness of courts of equity to enforce contracts for personal services.'" Gately, 2 F.3d at 1234 (quoting Sampson, 415 U.S. at 83). I do ______ _______ not think the quotation should apply in a discrimination case such as Gately was and the present case is. ______ -24- 24 that, in the absence of an en banc panel, we are bound by a prior _______ precedent. Nevertheless, Gately took that language from Sampson, ______ _______ a case which involved only a CSRA claim (and only a probationary ____ employee). Neither the Supreme Court in Sampson nor this court _______ in Gately discussed any rationale for applying such language in ______ the context of a pure discrimination case, especially when Title VII contains no indication that government employers should be afforded any special "latitude" when it comes to enforcement of the Act. See Douglas v. Hampton, 512 F.2d 976, 981 (D.C.Cir. ___ _______ _______ 1975) ("Congress clearly intended to give public employees the same substantive rights and remedies that had previously been provided for employees in the private sector."); Martinez v. Orr, ________ ___ 738 F.2d 1107, 1110 (10th Cir. 1984) (same); Porter v. Adams, 639 ______ _____ F.2d 273, 278 (5th Cir. 1981) (same; also holding that exhaustion of administrative remedies not required by federal employee before bringing suit for preliminary injunction). ____________________ The quotation as originally stated in Sampson cited _______ Corbin on Contracts as its authority. 415 U.S. at 83. Perhaps the quoted principle would be applicable in the context of a CSRA civil service procedural claim such as the one before the Court in Sampson; the "civil service" claim may be analogous to an _______ action against a private employer in which the employee seeks to enforce the employer's procedural rules. But at least with respect to a Title VII or ADEA cause of action, a plaintiff seeking a preliminary injunction on the basis of alleged discrimination is not seeking "to enforce [a] contract for ___ personal services." She is seeking to enforce her rights under Title VII or the ADEA not to be discriminated against based on invidious stereotyping. Such rights were created by federal statutes, which supersede any contracts for personal services. Because Janey-Burrell is seeking to vindicate her federal statutory rights -- not to enforce her employment contract -- I do not believe Gately's "contract for personal services" gloss ______ applies in a discrimination case such as the present one. -25- 25 |