DeNovellis v. Shalala

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

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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

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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.

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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,

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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

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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

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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.

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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.

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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).

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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

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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.

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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

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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.

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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

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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.

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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

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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

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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.

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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.

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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

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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

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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.

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"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.

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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.

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25

I think it fundamentally unfair that a person who is

discriminated against by her or his employer should face a higher

hurdle when seeking to maintain the status quo pending trial

because of the mere fortuity that the discriminating employer

happens to be the government. To put it another way, I do not

believe the government as employer should be given more favorable

treatment when it comes to discrimination claims than a private

sector employer. I emphasize that Title VII and the ADEA

vindicate more important governmental policy interests than mere

CSRA "'procedural safeguards in effectuating the discharge.'"

Gately, 2 F.3d at 1234 (quoting Sampson, 415 U.S. at 91). In the

words of the Supreme Court, "[t]he prohibitions contained in the

Civil Rights Act of 1964 reflect an important national policy."

United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S.

711, 716 (1983); see General Tel. Co. v. EEOC, 446 U.S. 318, 326

(1980). The majority seems to agree: the reason offered by the

majority to explain why its intermediate Gately standard for

government discrimination claims "does not require as high a

showing of irreparable harm as Sampson" requires for CSRA cases,

is "because of the different policies and circumstances that

attend discrimination cases." Ante at 10-11 (citing Gately, 2

F.3d at 1233-34).

In my view, rooting out discrimination based on race,

gender, or age far outweighs any need to "protect[] the processes

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26

of the civil service system."5 See ante at 11. And such

discrimination by governmental employers is at least as serious

as discrimination by non-governmental employers. See Olmstead,

277 U.S. at 485 (Brandeis, J., dissenting).

There is simply no principled reason why Janey-

Burrell, a non-probationary government employee with twenty-five

years of service, raising discrimination claims as well as CSRA

claims, should be required to show a higher level of irreparable

injury than the ordinary, "familiar standard" for employees who

charge their non-governmental employers with discrimination. I

would not treat the governmental employer any more leniently than

the non-governmental, as the majority does, by applying a

stricter standard to government employees than to non-

governmental employees when they seek a preliminary injunction

based on alleged discrimination. I would apply one single

5. The majority cites EEOC v. Astra USA, Inc., 94 F.3d 738 (1st

Cir. 1996), for the proposition that "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 ante at 11 n.2. Astra is inapposite here. I fully

agree that a Title VII or ADEA plaintiff "must still satisfy the
traditional test," but the question is, what is the "traditional
test"? The majority would apply a different "traditional test"
to injunctions sought by government employees than it would apply
to injunctions sought by non-governmental employees: if a
government employee claims discrimination, the majority would
subject her injunction motion to Gately's additional hurdle of

overcoming the "wide latitude traditionally granted the
government in dispatching its own internal affairs." Ante at 12.

Surely the majority cannot rely on Astra to support its special

standard for government employees. Astra involved private

employees, and simply applied the ordinary four-factor
preliminary injunction standard to the EEOC, not a special,
heightened standard. See Astra, 94 F.3d at 742.

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27

"traditional test" to all Title VII or ADEA plaintiffs,

regardless of who their employer is.

B
B

I also disagree with the majority's distinction

between how it treats "discrimination claims brought by

government employees where no civil service claim is involved,"

ante at 10, and those discrimination claims which are joined with

a claim under the CSRA.

According to the majority, "the question may arise"

as to which standard would apply, the stricter Sampson standard

or the intermediate Gately test, in a case such as this where a

plaintiff has brought both a discrimination claim and a CSRA

claim. Ante at 12. The majority concludes that "[w]e need not

consider this question until it is squarely before us." Id. To

me, there is no legitimate question here: even though the CSRA

claim would be subject to Sampson's requirement of a "genuinely

extraordinary" showing of irreparable injury, the Title VII claim

should not be; the highest hurdle to which those claims should be

subjected is Gately's intermediate test. I cannot imagine why

the majority leaves open the possibility that the "extraordinary"

Sampson standard would ever be applied to a discrimination claim,

regardless of whether it was joined to an additional CSRA claim.

The anomalous nature of this possibility becomes

apparent when we consider an example. If a plaintiff alleges a

single Title VII (or ADEA) claim alone, the majority would apply

the intermediate Gately standard of irreparable injury in

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28

deciding her motion for a preliminary injunction. The majority

would apply this intermediate standard, and not Sampson's

"extraordinary" showing standard, in part because Title VII and

the ADEA vindicate more important governmental policy interests,

see ante at 11; Aikens, 460 U.S. at 716, than mere CSRA

"'procedural safeguards in effectuating the discharge,'" Gately,

2 F.3d at 1234 (quoting Sampson, 415 U.S. at 91).

Assume now that the same plaintiff adds a second

cause of action stating, in addition to race discrimination, that

the government also violated her civil service procedural rights.

Should the government -- by allegedly violating an additional law

-- get the benefit of a more advantageous (to it) standard

(Sampson's "genuinely extraordinary" showing of irreparable

injury instead of the intermediate Gately standard) when a court

evaluates whether to maintain the status quo pending trial? The

majority leaves this question open, ante at 12, implying that

this court might, in some future case, answer the question in the

affirmative.

But such an answer would totally ignore the strong

national policy that employers not discriminate against their

employees based on race, gender, or age. See Aikens, 460 U.S. at

716; General Tel. Co., 446 U.S. at 326. Under the majority's

test, the Gately "wide latitude" test should be applied, rather

than the traditional four-factor test that is applied to private

sector employees. Ante at 12. That latitude should not carry

any extra weight -- should not be permitted to ratchet up the

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29

standard to the "extraordinary" Sampson test -- merely because an

additional violation (of the CSRA) is added to the employee's

complaint.

In short, the analysis should not change depending on

whether a discrimination claim stands alone or is joined to an

additional (CSRA) claim. I would not reward the government for

violating a second federal law (the CSRA) in addition to

violating Title VII or the ADEA.

II
II

The majority concludes that Janey-Burrell failed to

demonstrate irreparable injury, whether Sampson's heightened

standard or the intermediate Gately standard is applied. I

disagree with this conclusion as well. In particular, I believe

that Janey-Burrell has demonstrated irreparable injury through

her allegation that the Secretary's alleged retaliation against

her could well intimidate potential witnesses to her underlying

discrimination claims. If potential witnesses fear that they too

will be retaliated against if they testify to the alleged

discrimination against Janey-Burrell, then those witnesses may be

"chilled" in their willingness to testify candidly in relation to

her claims. This chilling effect could leave Janey-Burrell

unable to prove her case either at the administrative level or in

district court. Even if her discrimination claims have merit,

she could well be unable to win any remedy for it.

The majority concludes that Judge Saris did not abuse

her discretion in finding no irreparable injury. In limiting its

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30

analysis to Judge Saris's ruling, the majority ignores the fact

that, upon reconsideration, the district court (Gertner, J.)

considered both irreparable injury and likelihood of success on

the merits of the relevant retaliation claim, and determined that

Janey-Burrell was entitled to a stay pending appeal. It can be

cogently argued that Judge Gertner's decision, not Judge Saris's,

constituted the district court's final word on Janey-Burrell's

motion for a preliminary injunction. Although Judge Gertner's

memorandum opinion addresses the plaintiffs' motions for a stay

pending appeal, it recognized that, "[i]n effect, . . . this

court is being asked to reconsider Judge Saris' thoughtful

analysis."

The district court has "plenary authority" to

reconsider its own rulings if it believes it has erred, and to

grant a motion it had previously denied. El Fenix de Puerto Rico

v. The M/Y Johanny, 36 F.3d 136, 140 n.2 (1st Cir. 1994); cf.

National Metal Finishing Co. v. Barclays American/Commercial,

Inc., 899 F.2d 119,123 (1st Cir. 1990) (Even after entry of

judgment, the purpose of Rule 52(b) is to allow reconsideration

in order to "correct[] . . . manifest errors of law or fact.").

Once the case had been transferred from Judge Saris to Judge

Gertner, the latter constituted the district court for the

purposes of this case. Santiago v. Group Brasil, Inc., 830 F.2d

413, 415 n.2 (1st Cir. 1987) (Second judge to whom case had been

reassigned stood in shoes of first judge, and "was free to

entertain motions to reconsider previous rulings to the same

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31

extent as [first judge] would have been."); see Flibotte v.

Pennsylvania Truck Lines, Inc., 131 F.3d 21, 25 (1st Cir. 1997)

(same).

Undertaking that reconsideration, Judge Gertner

explicitly considered the merits of the relevant retaliation

claim and the chilling effect it would have; she determined that

Janey-Burrell was likely to succeed on the merits and that she

would suffer irreparable injury without a restrainer; she made

findings regarding the other two prongs of the preliminary

injunction test; and she granted Janey-Burrell a stay pending

appeal.

I do not believe we can hold that Judge Gertner

abused her discretion in making these findings and granting the

stay, which she realized in effect constituted a reconsideration

of Judge Saris's decision denying a preliminary injunction as to

Janey-Burrell. Even if Judge Gertner's reconsideration were

given no effect, I would hold, for the reasons set forth in the

remainder of this opinion, that Judge Saris abused her discretion

in denying Janey-Burrell's motion for a preliminary injunction.6

I recognize that abuse of discretion is a deferential

standard, but that does not mean that an appellate court will

abdicate its responsibility to review the ruling of the nisi

prius court. See Independent Oil & Chem. Workers of Quincy, Inc.

v. Procter & Gamble Mfg. Co., 864 F.2d 927, 929 (1st Cir. 1988);

6. The same reasoning would apply a fortiori if we were to

analyze Judge Gertner's grant of a restraining order under the

abuse of discretion standard.

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32

Direx Israel, Ltd. v. Breakthrough Medical Corp., 952 F.2d 802,

815 (4th Cir. 1992) (Appellate review of grant or denial of

temporary injunction should not be a "mere rubber-stamp[]."); cf.

Gasperini v. Center for Humanities, Inc., 116 S. Ct. 2211, 2223

(1996) (reaffirming authority of appellate courts to review for

abuse of discretion a district court's denial of motion to set

aside jury verdict as excessive). Indeed, "[p]erhaps the most

important area where parroting the discretion phrase is likely to

lead to wrong decisions is the review of the grant or denial of

preliminary injunctions." Direx, 952 F.2d at 814 (quoting Henry

J. Friendly, Indiscretion About Discretion, 31 Emory L. J. 747,

773 (1982)). Discretion must be exercised "in a manner to

subserve and not to impede or defeat the ends of substantial

justice." Sturman v. Socha, 463 A.2d 527, 531 (Conn. 1983)

(internal quotation marks omitted); see Allegro v. Afton Village

Corp., 87 A.2d 430, 432 (N.J. 1952) (In exercising its

discretion, a court should not lose sight of its "paramount

objective" of rendering justice.); cf. Gasperini, 116 S. Ct. at

2223 (Appellate review is "a control necessary and proper to the

fair administration of justice.").

Application of an improper legal standard is "'never

within the district court's discretion.'" Camel Hair & Cashmere

Inst. of America, Inc. v. Associated Dry Goods Corp., 799 F.2d 6,

13 (1st Cir. 1986) (quoting Bellotti, 641 F.2d at 1009).

Likewise, "misapplication of the law to particular facts is an

abuse of discretion." Camel Hair, 799 F.2d at 13. For example,

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33

we will reverse a decision for abuse of discretion if the court

below ignored "a material factor deserving significant weight,"

relied upon an improper factor, or, though assessing all

appropriate and no inappropriate factors, made "a serious mistake

in weighing these factors." Procter & Gamble, 864 F.2d at 929.

I believe the district court (Saris, J.) abused its discretion in

finding no irreparable injury here.

I agree with the majority and the district court

that, standing alone, the loss of pay and prestige entailed when

one loses a management job fails to meet the irreparable harm

standard; such harms -- including the temporary reversion to a

GS-13 grade in order to remain in Boston pendente lite -- can be

compensated by money damages if plaintiff prevails at trial.7

See Sampson, 415 U.S. at 91-92; Gately, 2 F.3d at 1233-34. I

believe it was error, however, for the district court to

conclude, on this basis, that Janey-Burrell failed to demonstrate

irreparable injury. Judge Saris ignored "a material factor

deserving significant weight" (which Judge Gertner correctly

found applicable), namely the chilling effect of retaliatory

actions; as a result, Judge Saris erred in weighing the relevant

factors. See Procter & Gamble, 864 F.2d at 929.

7. But see Squires v. Bonser, 54 F.3d 168, 173 (3d Cir. 1995)

("'When a person loses his job, it is at best disingenuous to say
that money damages can suffice to make that person whole. The
psychological benefits of work are intangible.'") (quoting Allen

v. Autauga County Bd. of Educ., 685 F.2d 1302, 1306 (11th Cir.

1982)). A person also gains valuable experience from working,
including staying current with issues related to her job. See

DeLaughter v. United States Postal Service, 3 F.3d 1522, 1524

(Fed. Cir. 1993); Gately, 2 F.3d at 1234.

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34

It is well established that, "[i]f the plaintiff

suffers a substantial injury that is not accurately measurable or

adequately compensable by money damages, irreparable harm is a

natural sequel. Thus, a cognizable threat of such harm can

support a restraining order." Ross-Simons of Warwick, Inc. v.

Baccarat, Inc., 102 F.3d 12, 19 (1st Cir. 1996) (emphasis added)

(citations omitted); cf. Elrod v. Burns, 427 U.S. 347, 373 (1976)

(Deprivation of a constitutional right, "for even minimal periods

of time, unquestionably constitutes irreparable injury.").

In this case, Janey-Burrell would suffer irreparable

harm sufficient to sustain an injunction, whether the ordinary or

the heightened standard applies: she would be damaged in her

ability to pursue her EEO complaint -- and the integrity of the

complaint process would be concomitantly damaged -- if apparent

retaliation were permitted to go unchecked. Other courts have

held that "a Title VII suit involving alleged retaliation

presents a situation calling for increased sensitivity on the

part of a court." Marxe v. Jackson, 833 F.2d 1121, 1125-26 (3d

Cir. 1987). Adverse employment actions "can cause potential

witnesses to infer that their employer has retaliated and thereby

discourage their cooperation with aggrieved plaintiffs." Marxe,

833 F.2d at 1126; cf. EEOC v. Astra USA, Inc., 94 F.3d 738, 744

(1st Cir. 1996) ("To fulfill the core purposes of the statutory

scheme, 'it is crucial that the [Equal Employment Opportunity]

Commission's ability to investigate charges of systemic

discrimination not be impaired.'") (quoting EEOC v. Shell Oil

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35

Co., 466 U.S. 54, 69 (1984)). Similarly, where a plaintiff

alleges retaliation for filing an EEO complaint, failure to

preserve the status quo can have a "deleterious effect on the

exercise of these rights by others," and can chill the legitimate

oppositional activities of others similarly situated. Garcia v.

Lawn, 805 F.2d 1400, 1405 (9th Cir. 1986). We must not forget

that the enforcement of antidiscrimination laws serves not only

the interests of the private parties but also "vindicate[s] the

public interest in preventing employment discrimination."

General Tel. Co. v. EEOC, 446 U.S. at 326; Astra, 94 F.3d at 745

(public policy "clearly favors the free flow of information

between victims of [sexual] harassment and [the EEOC,] the agency

entrusted with righting the wrongs inflicted upon them").

As the Second Circuit observed:

A retaliatory discharge carries with it
the distinct risk that other employees
may be deterred from protecting their
rights under the Act or from providing

testimony for the plaintiff in her effort

to protect her own rights. These risks

may be found to constitute irreparable
injury.

Holt v. Continental Group, Inc., 708 F.2d 87, 91 (2d Cir. 1983)

(emphasis added).

I agree with our sister circuits on this point, and

would hold that, in appropriate circumstances, the potential

chilling effect of retaliation on the ability of employees to

protect their rights under the antidiscrimination laws may be

found to constitute sufficient irreparable injury to warrant a

preliminary injunction, even under the heightened standard of

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36

Sampson v. Murray. The majority opinion alludes to these

decisions, but does not make it clear whether and under what

circumstances it believes such a chilling effect may be

sufficient to satisfy the irreparable injury requirement for a

preliminary injunction in circumstances such as these.

In minimizing Janey-Burrell's chilling effect

argument, the majority notes that "Congress has chosen the route

of awarding attorneys fees to successful plaintiffs to dispel

disincentives to the bringing of meritorious suits." Ante at 17

n.7. But attorneys fees only dispel disincentives based on the

high cost of litigation; attorneys fees do nothing to dispel the

disincentive of an employer's retaliatory vendetta which can

intimidate potential witnesses and thereby prevent a plaintiff

from adequately prosecuting even a meritorious claim.

In this case, Janey-Burrell has articulated a

sufficient expectation that she will suffer the same type of

irreparable harm described by the Second Circuit in Holt: the

deterrence of other employees from testifying on behalf of Janey-

Burrell (or from protecting their own rights). Janey-Burrell's

transfer across the continent "can cause potential witnesses to

infer that their employer has retaliated and thereby discourage

their cooperation with [the] aggrieved plaintiff[]" for fear of

suffering a similarly adverse fate. Marxe, 833 F.2d at 1126.

This potential for intimidation will be reduced to some degree,

"if potential witnesses observe that the courts afford prompt

relief from retaliatory action." Id.

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37

The majority notes that Janey-Burrell could choose

not to be transferred, simply by accepting a demotion in grade

and status in Boston.8 Ante at 13. It is true that the monetary

aspect of such a demotion can be remedied after trial if Janey-

Burrell prevails. But the chilling effect of the demotion on

witnesses cannot be remedied so easily. The chilling effect on

witnesses is not dependent on whether the retaliation comes in

the form of an involuntary transfer to San Francisco or a

demotion to a GS-13-grade non-supervisory job in Boston. Indeed,

many potential witnesses and complainants might be deterred more

by the threat that their speaking out could result in their

demotion in pay and status than by the threat of a transfer to a

distant city. If Janey-Burrell loses her underlying case because

no witnesses are willing to come forward and testify, then she

will never be remedied for her monetary losses arising from the

allegedly retaliatory demotion.

I share the majority's concern that not every

plaintiff who alleges retaliation by her employer should be able

to obtain a preliminary injunction merely by asserting that

witnesses might conceivably be "intimidated from contributing to

8. It should be noted that HHS offered Janey-Burrell this Boston
option only on the eve of the hearing on plaintiffs' motion for a
temporary restraining order. The Boston option was not offered
at the same time (June 11) that HHS ordered Janey-Burrell's
transfer to California, but on August 13, more than two months
later. This was six days before the effective date of her
transfer (two days before DeNovellis's) and more than three weeks
after DeNovellis filed a Formal (Stage 2) Grievance protesting
his transfer out of state.

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38

the plaintiff's case" out of fear of retaliation.9 See ante at

14. On the other hand, we should be at least as vigilant against

the risk that a plaintiff whose claim has merit will nevertheless

be unable to prove her claim because she cannot meet the

majority's standard for demonstrating with specificity that

material witnesses who might have otherwise testified to actual

discrimination by the employer against the plaintiff are now

afraid to testify based on the employer's allegedly retaliatory

transfer of the plaintiff to an office 3,000 miles away. I find

it highly unlikely that a witness who is intimidated enough to

refuse to testify on the underlying discrimination would

nevertheless be willing to jeopardize her own career by signing

an affidavit attesting that she is reluctant to tell all she

knows because of the chilling effect of the employer's

retaliation against the initial plaintiff.

Wishing to be neither overinclusive nor

underinclusive, I would conduct an individualized assessment of

all relevant factors. In the circumstances of this case, I would

give Janey-Burrell the benefit of the doubt regarding the

adequacy of her showing that she would be irreparably injured by

the chilling effect of her employer's alleged retaliation.

9. The majority asserts that Janey-Burrell "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."
Ante at 14. The fact is, however, Judge Gertner, who was sitting

as the district court in this case at the time, expressly found
such a chilling effect. As I note below, I would affirm this
finding based on an individualized assessment of the facts before
the district court, not based on a per se rule.

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39

Janey-Burrell is a non-probationary employee with twenty-five

years of exemplary service in the Boston office. Shortly after

she filed complaints of discrimination, her supervisor personally

interjected himself in the implementation of adverse actions

against her in a manner that is highly unusual for someone of his

rank. See infra at 45-46. Importantly, the injunction she

sought would simply maintain the status quo pendente lite,

without causing any serious harm to her employer's overall

reorganization or operations. See Wetzel v. Edwards, 635 F.2d

283, 286 (4th Cir. 1980) (Because the purpose of a preliminary

injunction is to preserve the status quo until the rights of the

parties can be adjudicated, the courts have distinguished between

a motion for preliminary injunctive relief to maintain the status

quo and one to provide mandatory relief.). Given these

circumstances, I would hold that Janey-Burrell has demonstrated a

"cognizable threat" of irreparable harm, Baccarat, Inc., 102 F.3d

at 19, and should have been granted a restraining order.

This result is not inconsistent with the result in

Gately. There, we found such irreparable harm in plaintiffs'

allegations that went beyond "temporary loss of pay or

reputational injury." 2 F.3d at 1233-34 (citations omitted). We

emphasized the fact that the Gately plaintiffs were "arguing that

their statutorily-based civil rights [would] be violated," and

not merely "claiming that they [were] 'entitled to additional

procedural safeguards in effectuating the discharge.'" Gately, 2

F.3d at 1234 (quoting Sampson, 415 U.S. at 91)). In addition to

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40

these two "significant respects" in which the Gately facts were

distinguishable from Sampson's facts, we noted that the Gately

plaintiffs were not seeking interim injunctive relief pending

completion of an administrative appeals process, and that the

district court "unquestionably had the authority to issue the

requested equitable relief" (citing the judicial relief

provisions of the ADEA). Gately, 2 F.3d at 1233-34.

Similarly, Janey-Burrell's case involves claims under

federal civil rights statutes in addition to her merely

procedural claims, and those civil rights statutes grant the

court the authority to reinstate illegally discharged employees.

Moreover, Janey-Burrell has adequately asserted irreparable harm

that goes beyond mere loss of pay or reputational injury, thereby

satisfying three of the four Gately distinguishing factors.

It is true that Janey-Burrell has not exhausted her

administrative remedies and thus has not satisfied one of the

Gately factors. Nevertheless, she is distinguishable from Jeanne

Murray, the plaintiff in Sampson v. Murray, in another

fundamental respect, not listed among the four Gately factors.

Ms. Murray was a probationary employee who had worked for the

government for a mere four months. She sought an injunction

precluding her dismissal from her job during the pendency of the

litigation, which could have lasted (and did last) for years.

Equitable considerations surely cast her in a different light

than Janey-Burrell, who had worked for HHS in Boston for more

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than twenty-five years before the agency proposed to transfer her

across the country.

This difference is amplified when we consider the

purpose of a preliminary injunction: "to preserve the status quo

until the rights of the parties can be fairly and fully

investigated and determined." Wetzel, 635 F.2d at 286 (quotation

omitted); Omega Importing Corp. v. Petri-Kine Camera Co., 451

F.2d 1190, 1197 (2d Cir. 1971) (citing 7 James Wm. Moore, Federal

Practice 65.04[1] (2d ed. 1955)). When Janey-Burrell sought a

preliminary injunction precluding her involuntary transfer, she

merely sought to preserve the status quo, even though her

administrative charge had not yet been resolved. Ms. Murray, in

contrast, would have required the Court to strain the meaning of

the "status quo" beyond recognition if the Court had permitted

her to bootstrap her four-month tenure into several years' court-

ordered employment. The irreparable injury to Murray's employer,

if the Court had affirmed the restraining order in Sampson, would

have outweighed the irreparable injury Murray would suffer if the

restrainer were denied. In short, Janey-Burrell is more akin to

the Gately plaintiffs, who were entitled to an injunction

maintaining the status quo pendente lite, than to the plaintiff

in Sampson who was not so entitled.

III
III

Finally, I disagree with the majority's conclusion

that Janey-Burrell failed to demonstrate a likelihood of success

on the merits of her retaliation claim. Janey-Burrell filed

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three EEO complaints, two of which involved claims of

retaliation. Her second EEO complaint alleged that, in April

1994, she was assigned to a temporary "detail" in retaliation for

her having filed her first complaint of race and gender

discrimination. Her third EEO complaint alleged that her

involuntary transfer from Boston to San Francisco was in

retaliation for her having filed her first two complaints.

Although the present motion for preliminary

injunction relates to the latter complaint, Judge Saris analyzed

Janey-Burrell's likelihood of success on her retaliation claim by

considering only the first such claim (the temporary "detail").10

Judge Saris's entire analysis of the merits of Janey-Burrell's

retaliation claims is the following: "Janey-Burrell was detailed

to a position of great significance in the community in the

office of the former regional director, Philip W. Johnston.

Johnston stated in his affidavit that Galligan proposed the

detail in response to Johnston's request for someone with Janey-

Burrell's significant expertise. That hardly sounds like

retaliation."

10. Judge Saris did find that Janey-Burrell was likely to
succeed on the merits of her CSRA claim. The court held,
however, that, because the CSRA cause of action asserted merely
procedural flaws in the process by which her involuntary transfer
came about, Janey-Burrell had failed to satisfy the heightened
showing required to meet the irreparable injury requirement to
justify a preliminary injunction in that type of case. See

Sampson v. Murray, 415 U.S. 61, 91 (1974).

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Whether we agree or disagree with the foregoing

analysis,11 it addresses the wrong retaliation claim. Janey-

Burrell seeks a preliminary injunction against her 1996

involuntary transfer to San Francisco; she claims that that

transfer, after almost twenty-five years of service at HHS in

Boston, was retaliatory. The motion presently before the court

has nothing to do with the 1994 temporary detail. Judge Saris's

opinion erred as a matter of law by failing to analyze the

likelihood that Janey-Burrell will succeed on the merits of this

last retaliation claim.

Applying our precedents to Janey-Burrell's third

complaint (her second retaliation claim) leads me to disagree

with the majority and to conclude that Janey-Burrell is likely to

succeed on the merits. To establish a prima facie case of

retaliation, Janey-Burrell had to demonstrate that (1) she

engaged in protected conduct; (2) she suffered from an adverse

employment decision; and (3) the protected conduct and the

adverse action were causally connected. Fennell v. First Step

Designs, Ltd., 83 F.3d 526, 535 (1st Cir. 1996). The ADEA and

Title VII of the Civil Rights Act of 1964 analogously protect an

individual who has filed an EEO complaint from retaliation

therefor. See id. at 535 n.9. The underlying complaint does not

11. It was not until three months after Janey-Burrell had filed

her second EEO complaint -- alleging that the removal and
temporary detail to an unclassified position with undefined
duties were retaliatory -- that former Regional Director Johnston
requested that Galligan assign someone like her to his special
project, and Janey-Burrell was so detailed.

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have to be correct or successful. As we noted in the Title VII

context, "there is nothing in [the statute's] wording requiring

that the charges be valid, nor even an implied requirement that

they be reasonable." Wyatt v. City of Boston, 35 F.3d 13, 15

(1st Cir. 1994) (citations omitted). "[I]t is 'well settled'

that [the retaliation provisions] protect[] an employee

regardless of the merit of his or her EEOC charge." Id. (quoting

Sias v. City Demonstration Agency, 588 F.2d 692, 695 (9th Cir.

1978)).

Janey-Burrell's filing of an EEO claim constituted

protected conduct. See 42 U.S.C. 2000e-3(a) (specifically

protecting such conduct); Oliver v. Digital Equip. Corp., 846

F.2d 103, 110 (1st Cir. 1988). And both the reassignment to San

Francisco and the demotion to a GS-13 were, under the

circumstances, undoubtedly adverse employment actions. See

Wyatt, 35 F.3d at 15-16 (pointing to "other adverse actions"

covered by Title VII "such as demotions, disadvantageous

transfers or assignments, refusals to promote, unwarranted

negative job evaluations and toleration of harassment by other

employees") (emphasis added); Dominic v. Consolidated Edison Co.

of New York, Inc. 822 F.2d 1249, 1254-55 (2d Cir. 1987) (holding

an unfavorable transfer to constitute an adverse employment

decision); DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir.

1997) (noting that taking something of consequence from an

employee, including divesting her of significant

responsibilities, constitutes an adverse employment action).

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The majority concludes that Janey-Burrell cannot

succeed on the merits because she "offers little evidence" of "a

causal connection between her filing the two EEO complaints and

the subsequent choice she is forced to make between transfer or

demotion." Ante at 17. But in many cases such as this one, the

causal connection must be shown through indirect means such as

inferences and circumstantial evidence because "[t]here will

seldom be eyewitness testimony as to the employer's mental

processes." See Aikens, 460 U.S. at 716. Such indirect evidence

may be sufficient to demonstrate the requisite causal connection.

Id.

The majority finds Janey-Burrell's proof of causation

to be insufficient to show probability of success. I disagree.

I find the evidence and inferences here -- among other things,

facts set forth in Janey-Burrell's affidavit and undisputed by

the government -- to be sufficiently persuasive. Within five

months of her filing her first EEO complaint alleging race- and

gender-based discrimination on the part of Hugh Galligan, the

Regional Administrator of ACF for Region I, Galligan removed

Janey-Burrell from her supervisory position and detailed her to a

temporary undefined position. Significantly, on Friday, April 8,

1994, Galligan personally delivered a memorandum to Janey-

Burrell, announcing the removal and detail effective the

following Monday. Galligan instructed her to move all her

belongings by that Monday, April 11. When Monday arrived,

Galligan personally appeared at Janey-Burrell's office door with

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a hand-cart and began to move her belongings. Needless to say,

this kind of personal involvement was unusual behavior for an

official of Galligan's rank. It reeks of retaliation. See

Mesnick v. General Elec. Co., 950 F.2d 816, 828 (1st Cir. 1991)

(evidence of a supervisor's "vengeful preoccupation" would

suggest a retaliatory animus); see also Oliver, 846 F.2d at 110

("A showing of discharge soon after the employee engages in an

activity specifically protected by . . . Title VII . . . is

indirect proof of a causal connection between the firing and the

activity because it is strongly suggestive of retaliation.").

Galligan's intense personal interest in Janey-Burrell

was highlighted again in June 1996, when he personally delivered

to her the letter containing her reassignment to San Francisco.

Galligan told her "It's bad news. You're not going to like

this."

As its legitimate non-discriminatory explanation for

its actions, the government asserts that its personnel actions

regarding Janey-Burrell were related to a reorganization of its

offices, intended to streamline the agency and make it more

efficient. The government, of course, is entitled to reorganize

its offices, and efficiency is certainly a laudable goal. But

the government may not use its reorganization/improved-efficiency

rationale as a pretext to mask actual discrimination or

retaliation; the mere incantation of the mantra of "efficiency"

is not a talisman insulating an employer from liability for

invidious discrimination. See McDonnell Douglas Corp. v. Green,

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411 U.S. 792, 804 (1973). As discussed supra, Galligan, who was

the object of Janey-Burrell's EEO charges, was a major player in

the decision concerning how the department would be reorganized,

which jobs were to be eliminated and which were to be retained,

and who was to be assigned to which location.12 And Galligan's

personal involvement in the mechanics of Janey-Burrell's physical

relocation bespeaks an emotional involvement beyond mere

objective efficiency. It is a fair inference, not seriously

rebutted by the government, that Galligan's animosity toward

Janey-Burrell was causally connected to her having filed EEO

charges against him, and that his decisions to reassign and

transfer her were retaliatory. See Mesnick, 950 F.2d at 828;

Oliver, 846 F.2d at 110. This is especially true in light of the

letters in the record from a wide variety of community and

governmental leaders attesting to the quality and importance of

Janey-Burrell's work in Boston neighborhoods.

Moreover, "'[d]epartures from the normal procedural

sequence'" are among the factors a court may consider in

12. The majority emphasizes the fact that Galligan was not the
final decision-maker, that ACF Director of Regional Operations
Diann Dawson could have overridden his selections and Ms. Dawson
had no retaliatory animus. Ante at 18-19. This argument is not

persuasive. The government does not seriously dispute that
Galligan's recommendations to Ms. Dawson carried great weight in
determining which employees should be retained in supervisory
positions in Boston and which five should be transferred to other
regions. Ms. Dawson had only been in her position for
approximately one month and was located in Washington, D.C. She
had little reason to quarrel with Galligan's decisions, as might
have been the case if she in fact knew that Galligan's decision
to put Janey-Burrell on the transfer list rather than the
retention list might have been motivated by retaliation.

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assessing discriminatory motive. See Reno v. Bossier Parish Sch.

Bd., 117 S. Ct. 1491, 1503 (1997) (quoting Arlington Heights v.

Metropolitan Hous. Dev. Corp., 429 U.S. 252, 266 (1977)). Janey-

Burrell argues that the Department refused to follow the CSRA and

its own regulations pertaining to RIFs and to her reassignment to

a position in a different commuting area. To the extent that her

procedural claims prove to be true, such deviations from regular

procedure would constitute further circumstantial evidence of

discriminatory motivation.

To counter this inference, the government notes that

there were ten similarly situated managers in the Regional

Office, and only five of them were given directed reassignments

out of the area; the other five were retained in permanent

positions in the Boston Region. Moreover, only two of the five

transferees had filed prior EEO complaints. These numbers do

nothing to negate the claim of retaliation. The government does

not address the more relevant (though still not dispositive)

question of whether anyone who had previously filed an EEO

complaint ended up with one of the permanent positions. I note,

moreover, that the majority states: "[t]he decision made was

categorical, not individual. All five GS-14 managers not

selected to be a goal leader . . . were given the choice of being

reassigned to an equal position in another city or a demotion

while staying in Boston." Ante at 19 (emphasis added). The

majority ignores the critical fact that the Secretary, acting

primarily through Galligan, made a conscious choice as to which

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five employees would retain their rank and location and which

five would suffer an adverse action (i.e., a choice between two

adverse actions). I think the record contains facts giving rise

to a fair inference that retaliation was the reason Janey-Burrell

was one of the five selected for a transfer. I would conclude,

therefore, that Janey-Burrell has made a sufficient showing of

likelihood of success on the merits of her claim of retaliation.

IV
IV

In sum, I believe Janey-Burrell has demonstrated a

likelihood of success on the merits of her retaliation claim and

irreparable injury as to that claim. As noted, there is a strong

"public interest in preventing employment discrimination,"

General Tel. Co. v. EEOC, 446 U.S. at 326, and particularly in

assuring the integrity of the enforcement process by nipping any

retaliation in the bud, see Lawn, 805 F.2d at 1405; Holt, 708

F.2d at 91. As for balancing the equities, Janey-Burrell, after

twenty-five years of exemplary service to the Boston office,

simply asks to maintain the status quo pendente lite. See

Wetzel, 635 F.2d at 286. She asks this not merely because the

proposed transfer would cause her own dislocation, but also

because she is the legal guardian for her asthmatic grandson,

whose natural mother lives in Boston, and the transfer to San

Francisco would create serious obstacles in Janey-Burrell's

effort to reunite her grandson with his mother. In contrast, the

injury to the government would be minimal if the injunction were

granted: HHS would simply be ordered to do what it has the

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discretion to do and retain Janey-Burrell at her pay and grade in

the Boston office until the merits of her claims are determined.

Neither the agency nor the government at large would be forced to

derail the entire government reorganization/improved-efficiency

process in its tracks, a specter that the government

disingenuously conjured up in opposing the motion for preliminary

injunction. The government's inconvenience can in no way

outweigh the potential harm to Janey-Burrell and to the public

interest.

In evaluating an application for a preliminary

injunction, "[t]he heart of the matter is whether 'the harm

caused plaintiff without the injunction, in light of the

plaintiff's likelihood of eventual success on the merits,

outweighs the harm the injunction will cause defendants.'"

United Steelworkers of America v. Textron, Inc., 836 F.2d 6, 7

(1st Cir. 1987) (quoting Vargas-Figueroa v. Saldana, 826 F.2d

160, 162 (1st Cir. 1987)). Because this balance weighs decidedly

in favor of Janey-Burrell, I would hold that the district court

abused its discretion in failing to grant Janey-Burrell's motion

for a preliminary injunction.

The majority opinion makes it extremely difficult for

government employees to preserve the status quo pendente lite

through a preliminary injunction, more difficult than it would be

for their non-governmental counterparts who file discrimination

claims joined with CSRA claims. The majority opinion permits the

government to reap the benefits of its alleged discrimination for

long periods of time, and imposes a very high hurdle before a

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court can provide an effective remedy to civil servants who, like

Janey-Burrell, have devoted decades of service to the government.

I respectfully dissent.

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