Kelley v. Shalala, 1st Cir. (1998)

USCA1 Opinion
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,
v.
____________________
No.
97-1092
LAURENTINA JANEY-BURRELL,
v.
____________________
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

____________________
-33
LYNCH,
LYNCH,
Circuit Judge.
Circuit Judge.
______________
nationwide restructuring of
Health and Human
for
Children
offices
and
During
Families
reorganized
"hub" offices and
Although
Boston has been
"Hub of
the Universe," the
course
of a
the United States Department
Services (HHS) in 1996,
into five major
the
of
the Administration
its
ten
regional
adjunct offices.
affectionately referred to
as the
Boston field office lost
out to
larger urban centers and was not designated a hub office.
a result, the Boston office
and
did so
employees
was directed to shrink its size,
by reorganizing
to
one,
As
from
accomplishing
two levels
this
by
of managerial
eliminating its
middle management positions. Five middle management employees
in
the
Boston
accepting
office
a demotion or
were
given
the
option
laterally transferring to
of
either
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
42
U.S.C.
the Civil Rights Act of 1964,
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
discrimination by
that
HHS
violated
reassignments
forcing
the
them to
CSRA by
-33
constituted
illegal
age
retire prematurely,
and
failing
to
follow proper
procedures
for
DeNovellis
also
reduction-in-force.
said that
Janey-Burrell
the reassignment
and
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
they falter.
of preliminary injunctive relief, and there
All three lost in their applications before the
district court for issuance
Fed. R. Civ. P. 60(b).
a different
district
of preliminary injunctions under
Although Janey-Burrell obtained from
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
could it be by its own terms.
this appeal -- nor

-
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
retirement.
are now moot because
of their
As for Janey-Burrell, the district court did not
abuse its discretion in denying the injunction.
I
I
We
not
moot.
describe the facts as to Janey-Burrell; we need
discuss DeNovellis and
Kelley because their
claims are
-44
In
1993,
Vice
President
Gore
National Performance Review, which attempted
agencies
more cost-efficient and
Many HHS agencies
instituted
the
to make federal
responsive to
have since undergone extensive
the public.
review and
reorganization, including the Administration for Children and
Families (ACF),
which administers
over sixty federal
human
service
programs, including Head
with Dependent
streamline
Children.
the ACF
In
Start and Aid
to Families
1994, HHS initiated a
bureaucracy by
reducing
plan to
the number
of
administrative
centers from ten regional offices to five hub
offices.
five
The
offices,
including
management
level of
October
regional offices
Boston,
positions and reorganize
management instead
1994,
reorganize
were
the
Boston
into five
not
directed
to
goal-driven work-groups
leaders
comprise
and
the
Deputy
Regional
plan
In
to
in accordance
with the five goals of the ACF reorganization plan.
goal
have one
two levels.
implemented
hub
eliminate
so they would
of the extant
office
selected as
The five
Administrator
now
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
ACF
at the
November
GS-14 level
1993,
prior
Janey-Burrell
a mid-level manager at
to the
had
reorganization.
filed
an EEO
In
complaint
against her supervisor, Regional Administrator Hugh Galligan,
-55
and the
Assistant Regional Administrator,
alleging
race and
Richard Stirling,
gender discrimination.
In April
1994,
Regional Administrator Hugh Galligan reassigned Janey-Burrell
from her position of record to a temporary assignment without
specific duties.
EEO
complaint
temporary
In July 1994, Janey-Burrell filed
against
assignment,
retaliation
Galligan
alleging
for having
when
that
filed her
a second
he
placed
her
on
this
action
was
in
first EEO complaint.
In
October 1994, when the Boston regional office implemented its
reorganization plan,
Janey-Burrell was
goal leader.
with the
selected
placed
Along
to be
on
not chosen
other mid-level
goal leaders, Janey-Burrell
temporary
assignment
pending
to be
managers not
was permanently
reassignment
to
another permanent position within
was assigned
Johnston,
to the
where
she
Office of
served
the agency.
Janey-Burrell
Regional Director Philip
as the
Department's
W.
Violence
Prevention and Community Based Program Coordinator.
During
streamlining
1995 and
1996, in
order
volunteered to
five
the
process, the Boston office sought volunteers to
relocate to other offices around the country.
left
to continue
relocate, but
GS-14
Four employees
Janey-Burrell did
mid-level managers
remaining
not.
This
within
the
Boston office who had not been chosen to be goal leaders
and
whose positions were being eliminated by
the reorganization.
In
Regional Operations
June
1996,
Diann Dawson,
the
ACF
-66
Director, decided to impose "directed reassignments" on those
five
remaining GS-14
Burrell,
mid-level
to equivalent positions
managers, including
in the hub
Janey-
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.
proposed that
Dawson's
to
Janey-Burrell
Janey-Burrell fill a vacancy in the ACF office
in San Francisco.
Chicago, Dallas,
The others were asked to fill vacancies in
New York,
that Janey-Burrell
and Atlanta.
and the
she rejected the reassignment.
for her
requested
to the
days of receipt of
Janey-Burrell responded by letter on
be harder
Dawson
others respond
reassignments within fifteen
would
letter
proposed
the letter.
June 24, 1996, in which
Among her reasons was that it
to pursue
her EEO
claims against
Galligan were she in San Francisco instead of Boston.
On July
9, 1996,
response.
Dawson
letter
had
and
reassignment.
said
Janey-Burrell received
she
considered
Dawson
had
Dawson's
received Janey-Burrell's
Janey-Burrell's
objections
wrote she had nevertheless
to
decided to
reassign Janey-Burrell to San
Francisco effective August 18,
1996.
On August 13,
1996, Janey-Burrell was offered
option of staying in Boston.
manager had enquired
the
Before this date, one mid-level
as to whether she could
-77
stay in Boston
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
me
know."
allowed
you are interested in doing
For Janey-Burrell,
her to
stay
this
in Boston
in
$13,000 reduction in annual pay.
Burrell filed a complaint
the same, let
downgrade
a GS-13
would have
position at
On August 16, 1996, Janey-
with the district court seeking
temporary restraining order and preliminary injunctive relief
to prevent her
reassignment.
Chief Judge Tauro
granted the
temporary restraining order.
On
plaintiff's
September
30,
application
for
1996,
Judge
preliminary
Saris
denied
injunction.
Plaintiff
pending
filed a
notice of
appeal and
a motion
appeal under Fed. R. Civ. P. 62(c).
for stay
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
since
position
that time, even though ACF has otherwise completed its
____________________
1.
The dissent
effect
argues that
reconsideration
Judge Gertner's
of Judge
injunction under Fed R. Civ. P. 60(b).

not purport
62(c).
new
of the
But Judge Gertner did
court wishes to
relief pending the appeal under
district court
reconsider a prior denial of
60(b) power,
denial
in
to grant relief under Rule 60(b); she explicitly
stated that she was granting

Rule
Saris's
ruling was
in
a case
a preliminary injunction.
reconsider an earlier ruling under
however, it should
new district court

the prior ruling.
judge
If a
the Rule
be explicit about it.
judge here explicitly did
may
The
not reconsider
-88
reorganization.
the choice of
The defendants have informed this court that
going to San Francisco or
remaining in Boston
as a GS-13 employee is still open to her.
II
II
Janey-Burrell's
reasons.
As
the
claim
district
fails
court
for
found,
she
number
of
has
not
demonstrated
service
irreparable
claims (as
administrative
probability of
to
injury
which
remedies),
success on
and, save
she
has
she
for
not
has
the merits. We
her
exhausted
not
civil
her
demonstrated
do not
reach the
other criteria for injunctive relief.
A.
Preliminary Injunction Standard

_______________________________
We
issuance
repeat and apply here the familiar standard for
of preliminary injunctive relief.
must weigh four factors:
A district court
(1) the likelihood of the movant's
success on the merits; (2) the potential for irreparable harm
to the
movant; (3)
a balancing
of
i.e., the hardship to the nonmovant
as
contrasted with
the hardship
the relevant
equities,
if the injunction issues
to
the movant
if interim
relief is withheld; and (4) the effect on the public interest
of
a grant
or denial
of
the injunction.
Massachusetts, 2 F.3d 1221, 1224

_____________
See Gately
___ ______
(1st Cir. 1993).
v.
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.
-99
See id. at 1225.

___ ___
This case implicates two
issuance of injunctive
first
standard
claims
by
governs
federal
service rights
related standards for the
relief in employment law
issuance
government
of
Sampson v. Murray, 415 U.S.

_______
______
injunctive relief
employees
have been violated.
The
on
their civil
is controlled
by
61 (1974), which requires a very
This strong showing is
account of the "well-established rule that the Government
has traditionally
dispatch of its
and
that
This
strong showing of irreparable injury.
on
cases.
been granted
the widest
own internal affairs."
internal quotation marks
omitted).
Id.
___
latitude in
the
at 83 (citation
Sampson
_______
stands for
the
proposition that,
from
dismissing
before enjoining a
civil
service
government agency
employee
who
has
not
exhausted her administrative remedies, a court must find that
the
facts
irreparable
F.3d at
underlying
employee's
allegations
harm are genuinely extraordinary.
1232; see also,

________
Cir. 1984) (applying
by plaintiffs
the
Chilcott v. Orr,
________
___
Sampson in denial of
_______
being discharged
of
See Gately, 2
___ ______
747 F.2d
29 (1st
injunction sought
from Air Force
who did
not
first seek relief before appropriate Air Force administrative
boards); cf. United States v. Fausto,

___ ______________
______
(1988) (applying similar
484 U.S. 439,
principles in claim for
454-55
back pay);
Bush v. Lucas, 462 U.S. 367, 388-389 (1983) (applying similar

____
_____
principles in claim to reverse demotion).
-1010
The second standard
relief
in
discrimination
governs issuance of injunctive
claims
employees where no civil service
brought
by
government
claim is involved.
In this
circuit, this is controlled by Gately, which does not require

______
as high
a showing of irreparable
because
of
the
harm as Sampson.
_______
different policies
attend discrimination cases,
and
That is
circumstances that
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
prohibiting
factors.
there
is
The prohibiting
anti-discrimination
effectuating them.
Cir. 1996)
strong
discrimination based on
bring discrimination claims,

such
retaliation claims).
policy
age and other forbidden
of retaliation against
those who
while not primarily vindicating

policies,
is
See Tanca v. Nordberg, 98

___ _____
________
(mixed motive provisions
1991, which apply to
legislative
important
F.3d 680 (1st
of Civil Rights
discrimination claims, do not

The issue
here is
in
Act of
apply to
not whether
these
policies are important,

which
they alter
they plainly are, but the
the rules
as to
injunctive relief where the full

age discrimination and
issuance
extent to
of preliminary
array of remedies to combat
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
the
order to obtain
traditional test in
still satisfy
injunctive relief.
See Equal Employment Opportunity Comm'n v. Astra USA, Inc.,

___ ____________________________________
________________
94 F.3d
738 (1st
whether the
Cir. 1996).
In
EEOC was required
to meet the
for injunctive relief or whether

criteria
established
in
Astra, the
_____
question was
traditional test
it needed only satisfy
706(f)(2)
of
Title
the
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
harm and the inadequacy of

a preliminary
required to show irreparable
legal remedies in order to obtain
injunction.
See Astra, 94
___ _____
also Cohen v. Brown University,

____ _____
________________
(requiring
traditional
test
F.3d at
743; see
___
991 F.2d 888 (1st Cir. 1988)

to be
-1111
satisfied
in
Title IX
Gately holds
______
may
obtain
injunctive
discretion, upon
taking
that a
relief,
affairs."
the
in
the
demonstrating sufficient
into consideration
granted
government-employee plaintiff
government
"the wide
in
court's
irreparable harm,
latitude traditionally
dispatching
Gately, 2 F.3d at 1234.

______
district
its
own
internal
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
and
this case involving
discrimination claims,
the
both civil
service claims
question may
arise whether
Sampson or Gately presents the proper standard for a district

_______
______
court to apply.3
is
squarely
We need not consider this question until it
before
us.
standard, the district
in refusing
to grant
Even
under
the
court was well within
a preliminary
lesser
Gately
______
its discretion
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
be satisfied in
traditional test to
If the EEOC itself is
ADEA suit).
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.
-1212
loss
of $13,000
if she
emotional distress;
stays
there will
in Boston;
be a
she will
loss of
suffer
prestige; her
ability to work with counsel on pursuit of her claims will be
impaired if
she is
injunction will
understand
this
complaints
of
individual
parts
in San
Francisco;
have a chilling
job action
to
lack of
effect on others
be in
discrimination.
do
and the
these factors
who would
retaliation
Neither
in
amount
to
an
sum
for her
nor
in
irreparable
injury on the facts of this case.
We start with
choice whether she
the obvious.
It
accepts the transfer to
is Janey-Burrell's
San Francisco or
whether she remains in
Boston at a
accepts the transfer,
of status.
If she
diminution
in pay,
perhaps other
under
there is no diminution in
stays
damages if she
which
constitute
in
but will
traditional Rule
income
may
reduced salary.
be
Boston, she
recover
recovered
irreparable injury.
suffer
that pay
prevails on the merits.
65 standards,
later
not
and
Even
temporary loss
does
she
pay or loss
will
all of
If
of
usually
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,
psychologically
the
fact
troubled by an
that
an
employee
adverse job action
may
be
does not
usually constitute
irreparable injury
warranting injunctive
-1313
relief.
See Soldevila v. Secretary of Agriculture, 512 F.2d

___ _________
________________________
427, 430 (1st Cir. 1975).
Janey-Burrell's assertion that she
will
status,
suffer
loss
of
even
if
true,
is
also
insufficient to show irreparable injury, as HHS has given her
perfectly plausible explanation as to
job action.
the reasons for the
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
unexplained discharge was
not enough
reputation from an
to create
irreparable
injury.
We
effect
and
counsel.
left
with
interference
with
The breadth of
has little
made in
are
attraction.
every case
the
arguments
the
ability
about chilling
to
work
with
these arguments proves too much and
chilling effect
alleging retaliation.
rule that
irreparable injury
bringing a
retaliation claim
may be
and then
argument may
It cannot be
established simply
saying that
be
the
by
interim
relief
from
is necessary to prevent others from being intimidated
contributing to
their own claims.
the plaintiff's
or from
effect nor did she argue
motions for preliminary injunction
pending appeal.4
filing
Here, Janey-Burrell did not offer one whit
of evidence as to any chilling
point in her
case
the
or for stay
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.
-1414
raised sua
issuing
sponte
the stay
by the
second
district court
pending appeal.
Plaintiff is
judge
in
basically
arguing for a per se rule that a conclusory assertion made by
the
plaintiff for
sufficient
to
the
first time
establish
injunctive relief.
a chilling
in
appellate briefs
effect
and
is
to obtain
We reject that notion and the notion that
plaintiff need adduce no evidence on this point.
This
is not
never give rise to a
that it
is a
to say
that a retaliation
claim may
showing of irreparable injury, but only
highly fact
specific inquiry.
See Holt
___ ____
v.
Continental Group, Inc., 708 F.2d

________________________
(allegations
in
87, 90-91 (2d
Cir. 1983)
of chilling effect subject to Sampson standards

_______
cases involving the
Hocking Corp.,
______________
666
federal government); EEOC

____
F.2d
1037,
1043-44
(6th
v. Anchor
______
Cir.
1981)
(examining allegations of chilling effect in light of facts);
Bonds v. Heyman, 950 F. Supp.

_____
______
(explaining Holt as
____
involving the
1202, 1215 n. 13 (D.D.C. 1997)
requiring that chilling effect
federal government
combination with other
must be
in cases
"likely" and,
in
circumstances, "extraordinary").5
In
____________________
5.
Cir.
The dissent
1987)
in
cites Marxe
_____
support
the
v. Jackson,
_______
position
833 F.2d
that
the
1121 (3d
potential
chilling
In
effect in this
Marxe, the
_____
case constitutes
irreparable harm.
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
See
___
potential chilling
id.
___
at
1124.
effect that
The
Third
might
otherwise
occur.
Circuit
reversed.
The court said that plaintiff had failed to adduce
-1515
any event, the chilling effect argument made by Janey-Burrell
goes
primarily
to
plaintiff's own
the effect
that
effect on
injury.
on third
the federal
judicial
the
In
third
government
with
will
deeply
its efforts
particularly
where
response to
pressure from
voters to
here to
viewed in
be
operations,
facts
support anything
the
to
arguments before
Judge
the context
do so.
Saris, we
is
There
than a
can
by
streamline its
streamlining
other
to
as to
affected
chilling effect, and that is plainly inadequate.
the
not
this case, that argument
parties must be
interference
parties,
in
are no
hypothetical
Considering
say with
confidence that she did not abuse her discretion in
great
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
irreparable
land.
chooses not
locations and
were designed
More
accept the
this effect.
There
is no
injury on this factor alone; many litigants have
counsel in other
Procedure
involves
Rules of
to permit discovery
importantly, it
transfer or
the Federal
is
stay
to accept the
Civil
throughout the
Janey-Burrell's choice
in Boston.
If
to
Janey-Burrell
transfer, she will be
located in
Boston with her counsel.
____________________
any
evidence that
a chilling
effect might
consequently there was no irreparable harm.

26.
-1616
occur
and that
See id. at 1125___ ___
C.
Probability of Success
______________________
Janey-Burrell has three claims under the ADEA:
transfers
would
effect
an
impermissible
the
discriminatory
impact; she suffered disparate treatment; and the decision to
transfer her
theory
was motivated by
warrants
retaliation.
much discussion.
As
to
theories, Judge Saris has appropriately noted:
Only
the
the third
first
two
[T]he
evidence
employees
demonstrates
over
while
two
group
leaders.
sixty
over sixty
The
Administrator is
One
forty-something
fifty-eight
were
were
retained as
Deputy
Regional
year old.
year
old
another was
year old
two
reassigned
a sixty-four
reassigned, while
A
that
was
retained.
was
reassigned
while a fifty-two year
old was retained.
These
not
statistics
support
an
reassignment
are
inference
decision
adequate
that
was
to
the
based
on
discriminatory age-based criterion.
DeNovellis
__________
v. Shalala,
_______
Sept.
1996)
30,
Other than the
(order
No. 96-11655-PBS
denying
at
8-9 (D.
preliminary
statistics, there is little
Mass.
injunction).
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.
Court stated
that the
Even so, in
avoidance
Sampson, the Supreme

_______
of the
disruption of
the
civil service administrative process was a significant factor

against issuing
service claims.
Bush v.
____
injunctive relief in
See Sampson,
___ _______
Lucas, 462 U.S.

_____
First Amendment
action which would circumvent

v. Kennedy, 416
_______
hearing
prior to
415 U.S. at 83-84;
367 (1983)
and declining
see also,
________
judicial cause
civil service review);
or
-1717
civil
(assuming violation
to create
U.S. 134 (1974) (no

suspension
cases involving
of
of
Arnett
______
constitutional right to
discharge from
government
As
probability of
existence of
EEO complaints
to the
retaliation claims,
success,
Janey-Burrell
must
a causal connection between her
and the
subsequent choice
make between transfer or demotion.7
118 F.3d 857,
in
F.3d 526,
535
show
establish
the
filing the two
she is
forced to
See Randlett v. Shalala,

___ ________
_______
862-63 (1st Cir. 1997); Fennell

_______
Design, Ltd., 83
_____________
order to
(1st Cir.
v. First Step
__________
1996).
Janey-
Burrell offers little evidence of such a causal relationship.
Mere conjecture and unsupported allegations will not suffice.
Rather,
that
she must demonstrate the existence of specific facts
would enable a finding that explanatory reasons offered
by the government for her proposed transfer were mere pretext
for
its true
motive of
Mary's Honor Ctr.

__________________
v.
retaliation against
Hicks, 509
_____
Mesnick v. General Elec. Co.,

_______
_________________
1991).
She falls short
U.S.
her.
See St.
___ ___
502 508-12
(1993);
950 F.2d 816, 822-29 (1st Cir.
of showing probability of success on
the present record.8
____________________
service even for a non-probationary employee).
7.
If plaintiff wins
compensated
and
her
on her retaliation claim, she

attorneys
will
receive
attorney's fees.
Congress has chosen the
attorneys
to
fees
successful
will be
reasonable
route of awarding
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
she
given
was
the
Francisco or staying
first act
of
Janey-Burrell
choice
1994, the second

between
in Boston.
claimed retaliation
coming when
transferring
Judge Saris
and
to
San
focused on the
appropriately
found
had not shown a probability of success because
-1818
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
accepting a downgrade.
of
accepting
Three
reassignment
or
of
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
treated
any
workers.
other
Galligan, that
differently
Further,
than a
animus did not
than
desire to
be a
her similarly
personal animosity may have
retaliate.
categorical, not individual.10
selected to
cause her
assignment in October
1994.
been placed
All five were
co-
many origins
The decision
All five GS-14
goal leader had
situated
to be
made was
managers not
on temporary
given the choice
of being reassigned to an equal position in another city or a
____________________
she was
ultimately assigned
to a
Violence Prevention and Community
significant position,
as
Based Program Coordinator,
in the office of former regional director Philip W. Johnston.
9.
lost
DeNovellis filed a
on the merits.
claim of discrimination which
he has
See DeNovellis v. Shalala, 124 F.3d 298

___ __________
_______
(1st Cir. 1997).
10.
Galligan
selected
to
made
be
recommendations
goal
leader
as
in
to
the
Galligan's affidavit states that he made
who
would
reorganized
be
ACF.
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
leaders are all

and
men,
Burrell
and
shows that
the five
selected to
over forty years of age,

both African-Americans
offers no
evidence
motivated by discriminatory
suggesting
include both women
and
whites.
that
animus or a desire
in making these recommendations.
-1919
be goal
Janey-
Galligan
was
to retaliate
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
influence).
prior claims
proof of
reassign
(even
assuming
Galligan
had
some
The Regional Director was also uninvolved in the
of discrimination.
causation is
Under
insufficient to
these circumstances,
show probability
success, as is required for preliminary injunctive relief.
of
III
III
After
losing
their
motions
for
chose to
preliminary
injunction, DeNovellis
and Kelley
retire.
claims for preliminary
injunctive relief are moot.
Their
See New
___ ___
Hampshire Right to Life Political Action Comm. v. Gardner, 99

______________________________________________
_______
F.3d 8, 17-18 (1st Cir. 1996).
IV
IV
The
preliminary
orders
of
the
district
court
denying
injunctive relief are affirmed; the "stay" as to
Janey-Burrell is ended.
Costs to appellees.
Dissent follows.
-2020
BOWNES,
BOWNES,
majority
Senior Circuit Judge

Senior Circuit Judge
______________________
concludes that
(dissenting).
(dissenting).
plaintiff Janey-Burrell
has failed
The
to
demonstrate
irreparable injury and probability of success on the
merits, both of which are, of course, necessary for a preliminary
injunction.
disagree with
the majority
on both
issues and
therefore respectfully dissent.
I
I
Before discussing the application of the
injury
requirement
disagreement
whether
to
Janey-Burrell,
must
first
note
my
with the standard the majority applies in assessing
a preliminary
injunction
asserting discrimination under
of
irreparable
1964 (Title
VII),
42
should be
granted in
Title VII of the Civil Rights Act
U.S.C.
2000e,
and
Discrimination in Employment Act (ADEA), 29 U.S.C.
a case
under the
Age
621-34.
believe a government employee in such cases should
be held to the
same standard as a private sector
like circumstances.
employees
The standard that should be
-- whether
private sector
-- is
they work
for the
the "familiar
the public interest.
There
is
applied to all
government or
for the
[four-factor] standard
issuance of preliminary injunctive relief":
likelihood of success
employee under
irreparable
for
injury,
on the merits, balancing the equities, and
See ante at 9.
___ ____
no
reason
to
treat
the
government
as
employer any differently than a private employer when it comes to
discrimination
under Title VII
governmental employers is
or the ADEA.
at least as serious
-2121
Discrimination by
as discrimination
by
non-governmental employers.
277 U.S. 438, 485 (1928) ("In
See Olmstead v.
___ ________
United States,
_____________
a government of laws, existence of
the government
will be imperiled if it
fails to observe the law
scrupulously.
Our
potent, the
teacher.
government is
the
omnipresent
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).
The majority
issuance
of
circumstances.
preliminary
injunction,
depending
for the
on
the
The "familiar [four-factor] standard," ante at 9,

____
without any additional
presumably
envisions three separate tests
hurdle, would apply to the ordinary case,
including a
discrimination
case against
private
sector employer.
The majority would
involving
government employees
claims under the Civil
apply a second standard
asserting
Service Reform Act
only "civil
in cases
service"
of 1978, Pub. L.
No.
95-454, 92 Stat. 1111 (codified as amended in various sections of
U.S.C.) (CSRA).
Such employees would
"genuinely extraordinary"
forth in Sampson
be required
showing of irreparable
v. Murray, 415
U.S. 61, 92
to make a
injury, as set
n.68 (1974).
See
_______
______
___
-2222
ante at 10.
____
I agree with the majority's analysis to this point.1
In between the foregoing
would
apply
third,
intermediate
two standards, the majority
standard
in the
case
of
____________________
1.
I believe,
however, that
the policies it
Sampson's heightened
_______
relies on are applicable only
probationary government employees.

____________
employees,
I would apply
at
9, the
employees.
Other
same
as
In cases of non-probationary
preliminary injunctive relief,"

would apply
held
to
See
___
non-governmental
that Sampson's
_______
injury applies only to
employee "type of case."

F.2d 707, 712
we
courts have
standard of irreparable
in the context of
nothing more than "the familiar [four-
factor] standard for issuance of

ante
____
standard and
heightened
the probationary
Oglala Sioux Tribe v. Andrus,

__________________
______
603
(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
Gately opinion cited by the majority.

______
than the same page
As we noted in Gately, the

______
Court in Sampson
_______
repeatedly
referred
to
nature of its holding.
the
fact-bound
For instance, the
Court stated that the plaintiff's showing

"falls
which
far short of
is
issuance
the type
a necessary
of
this type of case."

_________________
stated that
injunctive power . .
of
be
injunction
this holding,
"[u]se
of a
. , when
probationary employees
should
to the
in
__
And, in the footnote
immediately following
Court
of injury
predicate
a temporary
reserved for
of the
court's
discharge
is an
[the
the
issue,
genuinely
extraordinary] situation."
Gately,
______
2 F.3d at
1233
(emphasis and alterations
(quoting Sampson,
_______
in Gately).
______
415 U.S.
Thus, the
to which Sampson's
_______
heightened standard applies is
of
employee who
a probationary
has raised
at 91-92)
"type of case"
the discharge
only civil
service
claims.
-2323
"discrimination claims brought by
civil service claim
is involved."2
government employees where
Ante at 10.
no
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,
into consideration
'the wide latitude
traditionally granted the
government in dispatching its own internal affairs.'"
(quoting
Gately, 2
______
majority, if the
F.3d
at
1234).3
plaintiff happens to
rather than a private sector
taking
Thus,
Ante at 12
____
according to
be a government
the
employee
employee, a fifth factor gets added
to the "familiar" four-factor test for preliminary injunctions.
I recognize
that,
in a
employees
alleging discrimination,
latitude"
language quoted
by the
case
Gately
______
involving
did apply
majority.4
government
the "wide
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
U.S. 61
raises
the CSRA, as was the case
(1974), and
a discrimination
in Sampson v. Murray, 415

_______
______
so-called "civil
claim against
service" employee
a
who
governmental employer
under Title VII or the ADEA, as Janey-Burrell has.
3.
It is worth
the
rationale
noting that this "wide latitude"
extraordinary"
irreparable
injury showing that was required in pure CSRA cases.
See ante at
___ ____
10.
It
is
for
the
anomalous
"genuinely
was offered as
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,
______
_______
not think
the quotation
should apply
415 U.S. at 83).

in a discrimination
such as Gately was and the present case is.

______
do
case
-2424
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).
nor this court
Neither
the Supreme Court in Sampson

_______
in Gately discussed any
rationale for applying such language
in
______
the context of a pure discrimination
VII
contains no indication
afforded any special
the Act.
1975)
See Douglas
___ _______
that government employers
"latitude" when it comes
v. Hampton, 512
_______
("Congress clearly intended
same substantive
case, especially when Title
rights and
to enforcement of
F.2d 976, 981
to give public
remedies that
should be
(D.C.Cir.
employees the
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
before bringing suit for preliminary injunction).
____________________
employee
The quotation as
originally stated in Sampson

_______
Corbin on Contracts as its authority.
415 U.S. at 83.
cited
Perhaps
the quoted principle would be applicable in the context of a CSRA

civil service procedural
in
Sampson; the
_______
claim such as the one
"civil service"
claim may
action against a private employer

enforce
the
respect
to
seeking
VII or
preliminary
discrimination
is not
___
personal services."
Title VII or the
injunction
stereotyping.
statutes,
which supersede
do
"to
ADEA not to be
Janey-Burrell
statutory rights --
on
But
at
the
of
basis
[a]
alleged
contract
discriminated against based

were
any contracts for

seeking
to
created by
on
federal
personal services.
vindicate
"contract for personal
her
federal
contract -- I
services" gloss
applies in a discrimination case such as the present one.
-2525
for
her rights under
not to enforce her employment
not believe Gately's

______
least with
a plaintiff
enforce
Such rights
is
to an
of action,
She is seeking to enforce
invidious
Because
rules.
ADEA cause
seeking
be analogous
in which the employee seeks to
employer's procedural
a Title
before the Court
I think it fundamentally unfair
that a person who is
discriminated against by her or his employer should face a higher
hurdle
when seeking
because of
happens
to maintain
the mere
the status
fortuity that
to be the government.
quo
pending trial
the discriminating
To put it
employer
another way, I do not
believe the government as employer should be given more favorable
treatment when it
sector
employer.
comes to discrimination claims than
emphasize
that
vindicate more important governmental
Title
VII and
a private
the
ADEA
policy interests than mere
CSRA
"'procedural safeguards
in
effectuating the
discharge.'"
Gately, 2 F.3d at 1234 (quoting Sampson, 415 U.S. at 91).

______
_______
words of the
In the
Supreme Court, "[t]he prohibitions contained in the
Civil Rights Act of 1964
reflect an important national
United States Postal Serv. Bd. of Governors v.

____________________________________________
policy."
Aikens, 460 U.S.

______
711, 716 (1983); see General Tel. Co.

___ ________________
v. EEOC, 446 U.S. 318, 326

____
(1980).
the reason offered
The majority seems to agree:
majority
government
to explain
why its
intermediate
discrimination claims
"does not
by the
Gately standard
______
require
for
as high
showing of irreparable harm as
Sampson" requires for CSRA cases,

_______
is
policies
"because of
the different
attend discrimination cases."
Ante at
____
and circumstances
that
10-11 (citing Gately,

______
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
-2626
of
the
civil
service
system."5 See
___
ante
____
at
11.
And
such
discrimination by governmental
as discrimination
employers is at least
by non-governmental employers.
as serious
See Olmstead,
___ ________
277 U.S. at 485 (Brandeis, J., dissenting).
There
is
simply
no
principled
Burrell, a non-probationary government
years of service,
charge their
Janey-
employee with twenty-five
raising discrimination claims as well
claims, should be required to
injury than the
reason why
as CSRA
show a higher level of irreparable
ordinary, "familiar standard" for
employees who
non-governmental employers with discrimination.
would not treat the governmental employer any more leniently than
the
non-governmental,
stricter
standard
governmental
to
as
the
majority
government
employees when
does,
employees
they seek a
by
than
applying
to
non-
preliminary injunction
based
on
alleged
discrimination.
would
apply one
single
____________________
5.
The majority cites EEOC v. Astra USA, Inc., 94 F.3d 738

____
_______________
Cir.
1996), for the
issuance
of
proposition that
injunctive
plaintiff makes
relief
are
a discrimination
still satisfy the traditional test

relief."
agree
See ante at 11 n.2.

___ ____
"the rules
not
governing the
altered
claim.
(1st
because
Such plaintiffs
the
must
in order to obtain injunctive
Astra is inapposite here.

_____
I fully
that a Title VII or ADEA plaintiff "must still satisfy the
traditional
test"?
test," but the question is, what is the "traditional
The majority would
apply a different "traditional test"
to injunctions sought by government employees than it would apply

to
injunctions sought
government
subject
employee
by
non-governmental
claims discrimination,
her injunction motion
overcoming
the
"wide
employees:
the
traditionally
standard
for
cannot rely on Astra to

_____
government
employees,
and
simply
preliminary
injunction
employees.
applied
standard
to the
the
Ante at 12.
____
support its special
Astra
_____
the
hurdle of
granted
government in dispatching its own internal affairs."

Surely the majority
majority would
to Gately's additional
______
latitude
if
involved
ordinary
EEOC,
not
private
four-factor
a special,
heightened standard.
See Astra, 94 F.3d at 742.

___ _____
-2727
"traditional
test"
to
all
Title
VII
or
ADEA
plaintiffs,
majority's
distinction
regardless of who their employer is.
B
B
between
how
also
it
disagree
treats
with
the
"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
as to which
the majority, "the question
standard would apply, the
or the intermediate Gately test, in

______
plaintiff
claim.
has brought
Ante at 12.
____
consider this question
both a
____
a case such as this where
and
a CSRA
concludes that "[w]e need not
until it is squarely before us."
me, there is no legitimate question
claim would be
stricter Sampson standard

_______
discrimination claim
The majority
may arise"
here:
Id.
___
even though the
subject to Sampson's requirement of

_______
To
CSRA
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
apparent when we
intermediate
of
this
consider an example.
single Title VII (or ADEA)
the
nature
Gately
______
If a
possibility
becomes
plaintiff alleges a
claim alone, the majority would apply
standard
-2828
of
irreparable
injury
in
deciding her motion
would
apply
this
for a preliminary injunction.
intermediate
standard,
and
The majority
not
Sampson's
_______
"extraordinary" showing standard,
in part because Title
the ADEA vindicate more important
governmental policy interests,
see
___
ante
____
at
11;
Aikens,
______
460
U.S. at
"'procedural safeguards in effectuating
716,
than
VII and
mere
CSRA
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
(Sampson's
_______
benefit
"genuinely
injury instead
of
a more
____
advantageous
extraordinary"
showing
of
standard
irreparable
of the intermediate Gately standard) when a court

______
evaluates whether to maintain the
majority leaves
(to it)
this question
status quo pending trial?
open, ante at
____
12, implying
The
that
this court might, in some future case, answer the question in the
affirmative.
But
national
such an answer
policy that
employers
would totally ignore
not discriminate
employees based on race, gender, or age.
the strong
against their
See Aikens, 460 U.S. at
___ ______
716; General Tel. Co., 446

_________________
test, the Gately "wide

______
U.S. at 326.
any extra
weight --
the majority's
latitude" test should be applied,
than the traditional four-factor test that
sector employees.
Under
Ante at 12.
____
is applied to private
That latitude should
should not be
-2929
rather
not carry
permitted to ratchet
up the
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
additional (CSRA) claim.
violating
second
alone or is joined
I would not reward
federal
law
(the
CSRA)
to an
the government for
in
addition
to
violating Title VII or the ADEA.
II
II
The majority
demonstrate
standard
or
irreparable
concludes that Janey-Burrell
injury,
the intermediate
whether
Gately
______
Sampson's
_______
standard is
failed to
heightened
applied.
disagree with this conclusion as
that Janey-Burrell
has demonstrated
her allegation that the
her could well
be
In particular, I believe
irreparable injury
through
Secretary's alleged retaliation
against
intimidate potential witnesses to
discrimination claims.
will
well.
retaliated
her underlying
If potential witnesses fear that they too
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
-3030
analysis to Judge
that,
Saris's ruling, the majority
upon reconsideration,
considered both irreparable
the
district
ignores the fact
court (Gertner,
injury and likelihood of
J.)
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
motion
the district
for a preliminary
court's final word
injunction.
memorandum opinion addresses
pending
court
appeal, it
is being
to
Although
Judge Gertner's
the plaintiffs' motions for
recognized that,
asked
on Janey-Burrell's
"[i]n effect,
reconsider
Judge
Saris'
court
"plenary
a stay
. . .
this
thoughtful
analysis."
The
district
reconsider its own
rulings if it
has
believes it has erred,
grant a motion it had previously denied.
v.
The M/Y Johanny,

_______________
36 F.3d 136,
National Metal Finishing Co.

______________________________
Inc.,
____
899 F.2d
119,123 (1st
authority"
to
and to
El Fenix de Puerto Rico

_______________________
140 n.2 (1st
Cir. 1994); cf.

___
v. Barclays American/Commercial,
______________________________
Cir.
1990) (Even
after entry
of
judgment, the purpose
of Rule 52(b) is
in order to "correct[]
Once
the case
Gertner,
purposes of
. . . manifest errors of
had been
the latter
transferred from
constituted
this case.
the
stood in
entertain
motions to
law or fact.").
Judge Saris
district
court
to Judge
for
the
Santiago v. Group Brasil, Inc., 830 F.2d

________
__________________
413, 415 n.2 (1st Cir. 1987) (Second
reassigned
to allow reconsideration
shoes
of
judge to whom case had been
first judge,
reconsider previous
-3131
and
rulings
"was free
to the
to
same
extent
as [first
judge]
would have
been.");
Pennsylvania Truck Lines, Inc., 131 F.3d 21, 25

_______________________________
see Flibotte
___ ________
v.
(1st Cir. 1997)
(same).
Undertaking
explicitly considered
that
the
merits of
claim and the chilling effect
Janey-Burrell was
would
reconsideration,
likely to succeed
regarding the
injunction test;
and she
other
relevant
Gertner
retaliation
it would have; she determined that
suffer irreparable injury
findings
the
Judge
on the merits and
that she
without a restrainer;
she made
two
prongs
of
granted Janey-Burrell
the
preliminary
a stay
pending
appeal.
do
not believe
we
abused her discretion in making
stay,
can hold
that
Judge Gertner
these findings and granting
the
which she realized in effect constituted a reconsideration
of Judge Saris's decision denying a
Janey-Burrell.
Even
if
Judge
given no effect, I would hold,
preliminary injunction as to
Gertner's reconsideration
were
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
to review
an appellate
the ruling
court will
abdicate its
responsibility
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
analyze Judge
would apply
Gertner's grant of
_____
a fortiori if
___________
we were
a restraining order
to
under the
abuse of discretion standard.
-3232
Direx Israel, Ltd.

__________________
815
(4th Cir.
v. Breakthrough Medical Corp.,

__________________________
1992) (Appellate
review
of grant
952 F.2d 802,
or denial
of
temporary injunction should not be a "mere rubber-stamp[]."); cf.

___
Gasperini v. Center for Humanities, Inc., 116 S.

_________
____________________________
(1996) (reaffirming authority
abuse of
aside
of appellate courts to
discretion a district
jury verdict as
Ct. 2211, 2223
review for
court's denial of motion
excessive).
Indeed,
to set
"[p]erhaps the most
important area where parroting the discretion phrase is likely to
lead to wrong decisions
is the review of the grant
preliminary injunctions."
J.
773
Direx, 952
_____
F.2d at 814 (quoting Henry
Friendly, Indiscretion About Discretion, 31

_____________________________
(1982)).
subserve
justice."
Discretion
and not
Sturman
_______
must
to impede
v. Socha,
_____
be exercised
or defeat
463
or denial of
Emory L. J. 747,
"in
the ends
A.2d 527,
a manner
to
of substantial
531 (Conn.
1983)
(internal
Corp.,
_____
quotation marks omitted); see Allegro v. Afton Village

___ _______
_____________
87
A.2d
discretion,
430,
a court
objective" of
432
should
(N.J.
1952)
not lose
(In
sight
exercising
of its
"paramount
rendering justice.); cf. Gasperini, 116

___ _________
2223 (Appellate review is "a
its
S. Ct. at
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
Likewise,
Cir.
1986)
(quoting
"misapplication of the
abuse of discretion."
Bellotti,
________
641
F.2d
law to particular
Camel Hair, 799 F.2d at 13.

__________
at
1009).
facts is an
For example,
-3333
we will reverse a decision
for abuse of discretion if
below ignored
"a material factor deserving
relied
an
upon
improper
factor,
or,
the court
significant weight,"
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.
agree with
the majority
that, standing alone, the loss
one loses
a management
standard; such
and
the district
of pay and prestige entailed when
job fails to
harms -- including
meet the
irreparable harm
the temporary reversion
GS-13 grade in order to remain in Boston pendente lite
compensated by
See Sampson,
___ _______
believe
it
money damages
415 U.S. at
was
error,
court
if plaintiff
91-92; Gately, 2
______
however,
for
the
-- can be
prevails at
trial.7
F.3d at 1233-34.
district
to a
court
to
conclude, on this basis, that Janey-Burrell failed to demonstrate
irreparable
deserving
injury.
Judge Saris
significant
found applicable),
weight"
namely
ignored
(which
the chilling
"a
material factor
Judge Gertner
effect
of
correctly
retaliatory
actions; as a result, Judge
factors.
Saris erred in weighing the relevant
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
psychological benefits of work

v.
A person
including staying
DeLaughter v.
__________
The
are intangible.'") (quoting Allen

_____
Autauga County Bd. of Educ., 685 F.2d

____________________________
1982)).
person whole.
also gains valuable

current with issues
1302, 1306 (11th Cir.
experience from working,

related to her job.
United States Postal Service,

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

______
-3434
3 F.3d
See
___
1522, 1524
It
is
well
established that,
"[i]f
the plaintiff
suffers a substantial injury that is not accurately measurable or
adequately
natural
support a
compensable by money
sequel.
Thus, a
cognizable threat of
__________________
restraining order."
Baccarat, Inc., 102 F.3d 12,

______________
damages, irreparable harm
such harm
is a
can
Ross-Simons of Warwick, Inc. v.

_____________________________
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:
ability to pursue
she would
her EEO complaint -- and the
complaint process would
to go unchecked.
held
suit
presents a
"a
Title
situation calling
part of a court."
Cir.
1987).
VII
involving
alleged
have
retaliation
sensitivity on
Marxe v. Jackson, 833 F.2d

_____
_______
actions
if apparent
Other courts
for increased
Adverse employment
in her
integrity of the
be concomitantly damaged --
retaliation were permitted
that
be damaged
the
1121, 1125-26 (3d
"can cause
potential
witnesses to infer that their employer has retaliated and thereby
discourage
their cooperation with aggrieved plaintiffs."
833 F.2d at 1126;
cf. EEOC v. Astra USA, Inc.,

___ ____
_______________
Marxe,
_____
94 F.3d 738, 744
(1st Cir. 1996)
scheme,
("To fulfill the core purposes
'it is crucial
Commission's
ability
discrimination not
that the [Equal
to
investigate
be impaired.'")
of the statutory
Employment Opportunity]
charges
(quoting EEOC
____
of
systemic
v. Shell Oil
__________
-3535
Co.,
___
466 U.S.
54, 69
(1984)).
Similarly,
where a
plaintiff
alleges
retaliation
preserve the
for
status quo
filing an
EEO
can have a
complaint,
failure to
"deleterious effect
on the
exercise of these rights by others," and can chill the legitimate
oppositional
activities of others similarly situated.
Lawn, 805 F.2d

____
1400, 1405 (9th Cir.
that the enforcement
the interests of
public
interest
General Tel. Co.

________________
(public
policy
1986).
not forget
of antidiscrimination laws serves
the private parties but
in
We must
Garcia v.
______
preventing
not only
also "vindicate[s] the
employment
discrimination."
v. EEOC, 446 U.S. at 326; Astra, 94 F.3d at 745

____
_____
"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
the
distinct risk
may
be
that other
deterred from
rights under
the Act
with it
employees
protecting
their
or from providing
__________________
testimony for the plaintiff in her effort

_________________________________________
to protect her own rights.
__________________________
These risks
may
irreparable
be found
to constitute
injury.
Holt v.
____
Continental Group, Inc., 708 F.2d

_______________________
87, 91 (2d Cir. 1983)
(emphasis added).
I agree with
would hold
that,
chilling effect
protect their
found
our sister circuits on
in appropriate
of retaliation
rights under
injunction, even
circumstances,
on the
ability of
the antidiscrimination
to constitute sufficient
preliminary
this point, and
the
employees to
laws may
irreparable injury to
under the
potential
be
warrant a
heightened standard
of
-3636
Sampson
_______
v.
decisions,
Murray.
______
but does
circumstances
sufficient
it
The majority
not make
believes
to satisfy the
opinion
it clear
such
alludes
whether and
chilling
to
these
under what
effect
irreparable injury requirement
may
be
for a
preliminary injunction in circumstances such as these.
In
minimizing
Janey-Burrell's
chilling
effect
argument,
of awarding
the majority notes that "Congress has chosen the route
attorneys fees
to successful
disincentives to the bringing of
n.7.
But
plaintiffs to
meritorious suits."
attorneys fees only dispel disincentives
high cost of litigation; attorneys
disincentive of
an
intimidate potential
dispel
Ante at 17
____
based on the
fees do nothing to dispel the
employer's retaliatory
vendetta
witnesses and thereby
prevent a
which
can
plaintiff
from adequately prosecuting even a meritorious claim.
In
sufficient
this
case,
expectation that
irreparable harm
Janey-Burrell
she will
described by the
has
suffer
articulated
the same
type of
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
infer that their
continent "can cause potential
employer has retaliated and
their cooperation with
suffering a
thereby discourage
[the] aggrieved plaintiff[]" for
similarly adverse
fate.
This potential for intimidation
"if potential
witnesses to
Marxe,
_____
833 F.2d
will be reduced to
witnesses observe
relief from retaliatory action."
that the
Id.
___
-3737
fear of
at 1126.
some degree,
courts afford
prompt
The
not to
majority notes
be transferred, simply
and status in Boston.8
But
witnesses cannot be
the
of an
form
be remedied after trial if

__
remedied so easily.
is not dependent
transfer
of the
The
on whether the
involuntary
in grade
It is true that the monetary
the chilling effect
witnesses
could choose
by accepting a demotion
Ante at 13.
____
aspect of such a demotion can
Burrell prevails.
that Janey-Burrell
to
demotion on
chilling effect on
retaliation comes in
San Francisco
demotion to a GS-13-grade non-supervisory job in Boston.
many
by
Janey-
or
Indeed,
potential witnesses and complainants might be deterred more
the threat
that their
speaking
out could
result in
their
demotion in pay and status than by the threat of
distant city.
no witnesses
If Janey-Burrell loses her underlying case because
are willing to
will never be
a transfer to a
come forward and testify,
remedied for her monetary losses
then she
arising from the
allegedly retaliatory demotion.
share
the
majority's
concern
that
not
every
plaintiff who alleges retaliation by her employer should be
to
obtain
merely
by
able
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.
at
the
same time
transfer to
(June
The Boston option
11) that
California, but on
HHS
was not offered
ordered Janey-Burrell's
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.
-3838
the plaintiff's case" out of
14.
fear of retaliation.9
See
___
ante at
____
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
material witnesses who
might have otherwise testified
discrimination
employer against
by the
afraid to testify
based on the employer's
transfer of the plaintiff to an office
it highly
refuse
unlikely that a
to
nevertheless
an
testify
on
because
of
the
plaintiff are
I find
enough to
discrimination
would
her own career by signing
is reluctant
chilling
now
allegedly retaliatory
3,000 miles away.
underlying
that she
the
to actual
witness who is intimidated
be willing to jeopardize
affidavit attesting
knows
the
that
effect
to tell
of
the
all she
employer's
retaliation against the initial plaintiff.
Wishing
underinclusive, I
to
be
neither
overinclusive
would conduct an individualized
nor
assessment of
all relevant factors.
give
Janey-Burrell
In the circumstances of this case, I would
the
benefit
adequacy of her showing that
the
chilling
effect
of
her
of
the
doubt
regarding
the
she would be irreparably injured by
employer's
alleged
retaliation.
____________________
9.
for
The majority asserts that Janey-Burrell "is basically arguing

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
Ante at 14.
____
The fact is, however, Judge Gertner, who was sitting
as the
and to
district court in this case
such a chilling
effect.
As
obtain injunctive
relief."
at the time, expressly found
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.
-3939
Janey-Burrell
is a
years of exemplary
non-probationary
employee with
service in the Boston office.
twenty-five
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.
sought
would simply
maintain
the
without
causing any
serious
harm
reorganization or operations.
Importantly,
status
to
her
See Wetzel
___ ______
the injunction
quo
pendente
employer's
she
lite,
overall
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
Gately.
______
result is not
There, we
allegations
that
found such
went
reputational injury."
beyond
inconsistent with the
irreparable harm
"temporary
loss
result in
in plaintiffs'
of
pay
or
2 F.3d at 1233-34 (citations omitted).
We
emphasized the fact that the Gately plaintiffs were "arguing that
______
their statutorily-based
not merely
civil rights
"claiming that
they [were]
[would] be
violated," and
'entitled to
procedural safeguards in effectuating the discharge.'"
F.3d at 1234
(quoting Sampson, 415 U.S. at 91)).

_______
additional
Gately, 2
______
In addition to
-4040
these two "significant
respects" in which the
Gately facts were

______
distinguishable
plaintiffs
were not
completion of
district court
requested
from Sampson's facts,

_______
seeking interim
an administrative
provisions of the ADEA).
relief"
the Gately
______
injunctive relief
appeals process,
"unquestionably had
equitable
we noted that
the authority
(citing
the
pending
and that
the
to issue
the
judicial
relief
Gately, 2 F.3d at 1233-34.

______
Similarly, Janey-Burrell's case involves claims under
federal
civil
procedural
rights
claims, and
statutes
in
those civil
court the authority to reinstate
addition
rights
to
her
merely
statutes grant
the
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
administrative remedies
Gately factors.
______
Murray,
the
fundamental
that Janey-Burrell has not
and thus
has not satisfied
one of
the
Nevertheless, she is distinguishable from Jeanne
plaintiff
in
Sampson
_______
respect, not listed
v.
was a
probationary employee who
government
for a
mere four
months.
precluding her dismissal from her
Murray,
______
among the four
Ms. Murray
litigation,
exhausted her
in
Gately factors.
______
had worked
She sought
job during the pendency of the
have lasted
(and did last)
Equitable considerations
surely cast
her in
who had
for the
an injunction
which could
than Janey-Burrell,
another
worked for HHS
for years.
a different
in Boston
light
for more
-4141
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
can
the
rights
of
the
investigated and determined."
parties
be
fairly
and
fully
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.
merely
sought
to
1955)).
When Janey-Burrell sought a
precluding her involuntary
preserve
the
status
quo,
transfer, she
even though
her
administrative charge had not yet
been resolved.
contrast, would have required the
Court to strain the meaning of
the "status
quo" beyond recognition
if the Court
Ms. Murray, in
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
______
maintaining
plaintiffs,
who
were
____
the status quo pendente
entitled
to
an
injunction
lite, than to the plaintiff
in Sampson who was not so entitled.

_______
III
III
Finally, I
that
on
disagree with
the majority's
conclusion
Janey-Burrell failed to demonstrate a likelihood of success
the merits
of her
retaliation claim.
-4242
Janey-Burrell
filed
three
EEO
complaints,
retaliation.
two
of
Her second EEO
which
involved
complaint alleged
claims
that, in
of
April
1994, she was assigned to a temporary "detail" in retaliation for
her
having
filed
discrimination.
involuntary
her
Her
transfer
first
complaint
third
EEO
from
Boston
of
complaint
to
San
race
and
alleged
gender
that
Francisco
was
her
in
retaliation for her having filed her first two complaints.
Although
injunction
the
present
motion
for
preliminary
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
retaliation claims is the following:
to
a position
office
of
Johnston
the
stated
of great
in
significant
in the
director,
his affidavit
detail in response to Johnston's
Burrell's
"Janey-Burrell was detailed
significance
former regional
of Janey-Burrell's
that
community in
the
Philip
W. Johnston.
Galligan
proposed the
request for someone with Janey-
expertise.
That
hardly
sounds
like
retaliation."
____________________
10.
Judge
succeed
on
Saris did
the
find
merits of
however, that, because the
that
her
Janey-Burrell
CSRA
claim.
CSRA cause of action
was
The
likely
to
court held,
asserted merely
procedural flaws in the process by which her involuntary transfer
came
about, Janey-Burrell had
showing
required to meet
justify
a preliminary
failed to satisfy
the heightened
the irreparable injury
requirement to
injunction in
that
type of
case.
See
___
Sampson v. Murray, 415 U.S. 61, 91 (1974).

_______
______
-4343
Whether
analysis,11 it
Burrell
seeks
involuntary
we agree
addresses the
preliminary
transfer
to
or
disagree
with
wrong retaliation
injunction
San Francisco;
she
the
foregoing
claim.
against
claims
Janey-
her
1996
that that
____
transfer,
after almost
twenty-five years
Boston, was retaliatory.
of service at
The motion presently before
has nothing to do
with the 1994 temporary detail.
opinion erred
a matter
as
of
law by
HHS in
the court
Judge Saris's
failing to
analyze
likelihood that Janey-Burrell will succeed on the merits of
the
this
last retaliation claim.
Applying
complaint (her
our
precedents
second retaliation
to
Janey-Burrell's
claim) leads
me to
third
disagree
with the majority and to conclude that Janey-Burrell is likely to

__
succeed
on
retaliation,
engaged
the merits.
Janey-Burrell
To establish
had
in protected conduct;
employment
decision; and
(3)
to
prima facie
demonstrate
(2) she suffered
the
protected
that
case of
(1)
she
from an adverse
conduct
and
the
adverse action were
Designs, Ltd., 83
_____________
Title
causally connected.
F.3d 526, 535 (1st
Fennell v. First Step

_______
___________
Cir. 1996).
The
ADEA and
VII of the Civil Rights Act of 1964 analogously protect an
individual
therefor.
who has
filed
an
See id. at 535 n.9.

___ ___
EEO
complaint
from
retaliation
The underlying complaint does not
____________________
11.
It was not until three months
her
second
temporary
EEO
complaint
detail
to
an
--
after Janey-Burrell had filed

_____
alleging
that
unclassified position
the removal
with
and
undefined
duties were retaliatory -- that former Regional Director Johnston

requested that
Galligan assign someone
like her to
project, and Janey-Burrell was so detailed.
-4444
his special
have
to be correct or successful.
context, "there is
that the charges
nothing in [the statute's]
be valid, nor even an
they
be reasonable."
(1st
Cir. 1994)
that
[the
As we noted in the Title VII
wording requiring
implied requirement that
Wyatt v. City of Boston, 35

_____
_______________
(citations omitted).
retaliation
provisions]
"[I]t is
protect[]
regardless of the merit of his or her EEOC charge."
Sias v.
____
City Demonstration Agency,

_________________________
F.3d 13, 15
'well settled'
an
employee
Id. (quoting
___
588 F.2d 692, 695
(9th Cir.
1978)).
Janey-Burrell's
protected
conduct.
protecting such
filing of
See 42
___
U.S.C.
conduct); Oliver
______
an EEO
claim constituted
2000e-3(a)
(specifically
v. Digital Equip. Corp.,

_____________________
F.2d 103, 110 (1st Cir. 1988).
And both the reassignment
Francisco
to
and
the
circumstances,
Wyatt,
_____
transfers
_________
negative
undoubtedly
35 F.3d
covered
by
at 15-16
Title
or
demotion
VII
adverse
(pointing
"such
assignments,
job evaluations and
as
refusals
GS-13
were,
employment
846
to San
under
actions.
the
See
___
to "other
adverse actions"
demotions,
_________
disadvantageous
_______________
to
promote,
unwarranted
toleration of harassment
by other
employees") (emphasis added); Dominic v. Consolidated Edison Co.

_______
________________________
of New York, Inc. 822 F.2d

_________________
an
unfavorable transfer
decision);
1997)
to
DeNovellis v.
__________
(noting that
employee,
1249, 1254-55 (2d Cir. 1987) (holding
taking
including
constitute
Shalala, 124
_______
something
divesting
an
adverse
employment
F.3d 298, 306
(1st Cir.
of
consequence
her
of
from
significant
responsibilities, constitutes an adverse employment action).
-4545
an
The
majority
concludes
succeed on the merits because
causal
demotion."
inferences
seldom
and
processes."
between transfer or
But in many cases such as this one, the
be shown through
circumstantial
be eyewitness
cannot
the two EEO complaints and
she is forced to make
Ante at 17.
____
causal connection must
Janey-Burrell
she "offers little evidence" of "a
connection between her filing
the subsequent choice
that
testimony
indirect means such
evidence because
as
to
See Aikens, 460 U.S. at 716.

___ ______
the
"[t]here
employer's
as
will
mental
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
I find
facts
to show probability of success.
the evidence and
set forth in
the government
months of her
I disagree.
inferences here -- among
other things,
Janey-Burrell's affidavit and
undisputed by
-- to
be sufficiently persuasive.
filing her first EEO complaint
gender-based discrimination
Regional Administrator
on the
of ACF
part of
for Region
Within
five
alleging race- and
Hugh Galligan,
I,
the
Galligan removed
Janey-Burrell from her supervisory position and detailed her to a
temporary undefined position.
1994,
Galligan
personally
Burrell,
announcing
following
Monday.
belongings
by
the
Significantly, on Friday, April 8,
delivered
removal
and
Galligan instructed
that Monday,
April
11.
memorandum
detail
her
to
to
Janey-
effective
the
move all
her
When Monday
arrived,
Galligan personally appeared at Janey-Burrell's office
door with
-4646
a hand-cart and began to
this kind
official
move her belongings.
of personal involvement
of Galligan's
rank.
Mesnick v. General Elec. Co., 950

_______
_________________
It
was unusual
reeks of
Needless
to say,
behavior for
retaliation.
F.2d 816, 828 (1st Cir.
an
See
___
1991)
(evidence
of
supervisor's
suggest a retaliatory
("A showing
preoccupation"
animus); see also Oliver, 846

________ ______
of discharge soon
activity specifically
"vengeful
F.2d at 110
after the employee engages
protected by
indirect proof of a causal
would
. .
. Title
VII .
in an
. .
is
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
Galligan told
her "It's
bad
her reassignment to San
news.
You're not
Francisco.
going to
like
this."
As its legitimate
its
actions, the government
regarding Janey-Burrell were
non-discriminatory explanation for
asserts that its
personnel actions
related to a reorganization
of its
offices,
intended to
efficient.
streamline
the agency
and
The government, of course, is entitled
its offices,
and efficiency is
make it
more
to reorganize
certainly a laudable goal.
But
the government may not use its reorganization/improved-efficiency
rationale
as
pretext
retaliation; the mere
is not
invidious
to
mask
actual
discrimination
incantation of the mantra
talisman insulating
discrimination.
an
employer from
or
of "efficiency"
liability
for
See McDonnell Douglas Corp. v. Green,

___ _______________________
_____
-4747
411 U.S.
792, 804 (1973).
As discussed supra, Galligan, who was

_____
the object of Janey-Burrell's EEO
the
charges, was a major player in
decision concerning how the department would be reorganized,
which jobs were to be eliminated
and who was to
and which were to be
be assigned to which location.12
retained,
And Galligan's
personal involvement in the mechanics of Janey-Burrell's physical
relocation
bespeaks
objective
efficiency.
rebutted
by the
Janey-Burrell
an
emotional
It is
government,
was causally
involvement
a fair
that
beyond
inference, not
seriously
Galligan's animosity
connected to
her
mere
toward
having filed
EEO
charges
against him,
transfer her
and
were retaliatory.
Oliver, 846 F.2d at 110.

______
letters
that his
in the
record
decisions
See Mesnick,
___ _______
to reassign
950 F.2d
and
at 828;
This is especially true in light of the
from
a wide
governmental leaders attesting
variety
of community
to the quality and
and
importance of
Janey-Burrell's work in Boston neighborhoods.
sequence'"
Moreover, "'[d]epartures
from the
normal procedural
are
may
among
the
factors
court
consider
in
____________________
12.
The
majority emphasizes the fact that
final decision-maker,
that ACF
Director of
Galligan was not the
Regional Operations
Diann Dawson could
have overridden his selections and Ms. Dawson
had no retaliatory
animus.
persuasive.
government does
Galligan's
determining
The
Ante at 18-19.
____
not
This argument is not
seriously
dispute that
recommendations to Ms. Dawson carried great weight in

which employees
should be
retained in
supervisory
positions in Boston and which five should be transferred to other

regions.
Ms.
Dawson
had
only
approximately one month and was

had
in
her
position
for
located in Washington, D.C.
She
little reason to quarrel with Galligan's decisions, as might
have been the case

to
been
put
if she in fact knew
Janey-Burrell
on
the transfer
that Galligan's decision

list
rather
than
the
retention list might have been motivated by retaliation.
-4848
assessing discriminatory motive.
Bd., 117 S.
___
See Reno v. Bossier Parish Sch.

___ ____
___________________
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.
procedural
procedure
To the extent that her
claims prove to be true, such deviations from regular
would constitute
further
circumstantial evidence
of
discriminatory motivation.
To counter this inference,
there
were ten
Office,
out
similarly
and only five of
of the
positions in
area;
the
situated
managers
in
the
Regional
them were given directed reassignments
other five
the Boston Region.
transferees had filed
the government notes that
prior EEO
were
retained in
Moreover,
complaints.
permanent
only two of the five
These numbers
do
nothing to negate the claim
not
address the
question
of retaliation.
more relevant
of whether
anyone
(though
who
had
still not
categorical,
the majority states:
not
individual.
All
dispositive)
previously filed
complaint ended up with one of the permanent
moreover, that
The government does
"[t]he
five
positions.
an
I note,
decision made
GS-14
EEO
managers
was
not
___
selected to be a goal leader . . . were given the choice of being

____________________________
reassigned to
an equal
while staying
in Boston."
majority ignores
position in another
Ante
____
the critical
primarily through Galligan,
at 19
fact that
city or
(emphasis added).
the Secretary,
made a conscious choice
-4949
a demotion
The
acting
as to which
five employees
would retain
their rank
and location
five would suffer
an adverse action (i.e., a
adverse actions).
I think
and which
choice between two
the record contains facts giving rise
to a fair inference that retaliation was the reason Janey-Burrell
was one of the five selected
therefore,
for a transfer.
that Janey-Burrell has
I would
made a sufficient
conclude,
showing of
likelihood of success on the merits of her claim of retaliation.
IV
IV
In sum,
I believe
likelihood of success on the
Janey-Burrell has
merits of her retaliation claim and
irreparable injury as to that claim.
"public
interest
in
preventing
General Tel. Co. v. EEOC, 446

_________________
____
assuring the
the bud,
F.2d at 91.
As
twenty-five
years of
employment
U.S. at 326, and
discrimination,"
particularly in
asks to
see Lawn, 805

___ ____
F.2d at 1405;
Holt, 708
____
for balancing the equities, Janey-Burrell, after
exemplary service
to
the Boston
maintain
the
status quo
at 286.
She
asks this not merely
Wetzel, 635 F.2d

______
proposed
As noted, there is a strong
integrity of the enforcement process by nipping any
retaliation in
simply
demonstrated a
transfer
would
cause her
own
pendente
office,
lite.
See
___
because the
dislocation,
but also
because she
is the
whose natural
Francisco
legal guardian
mother lives
would
create
for her asthmatic
in Boston, and
serious
obstacles
the transfer
in
effort to reunite her grandson with his mother.
injury to the government would
granted:
HHS would
simply be
grandson,
to San
Janey-Burrell's
In contrast, the
be minimal if the injunction were
ordered to
-5050
do what
it has
the
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
process
entire government
in
its
tracks,
reorganization/improved-efficiency
specter
that
the
government
disingenuously conjured up in opposing the motion for preliminary
injunction.
The
outweigh the
government's
potential harm to
inconvenience
can
in
Janey-Burrell and to
no
way
the public
interest.
In
injunction,
caused
evaluating
"[t]he heart
plaintiff
plaintiff's
of
without
likelihood
an
of
application
the matter
the
is
injunction,
eventual
success
for
preliminary
whether 'the
in
on
light
the
of
harm
the
merits,
outweighs
the
harm
the
injunction
United Steelworkers of America v.

_______________________________
(1st Cir.
1987) (quoting
160, 162 (1st Cir. 1987)).
in favor of
abused
will
cause
defendants.'"
Textron, Inc., 836 F.2d

_____________
Vargas-Figueroa v.
_______________
Saldana, 826
_______
6, 7
F.2d
Because this balance weighs decidedly
Janey-Burrell, I would hold that
the district court
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
claims joined with CSRA claims.
discrimination
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
-5151
court can provide an effective remedy to civil servants who, like
Janey-Burrell, have devoted decades of service to the government.
I respectfully dissent.
-5252

Kelley v. Shalala, 1st Cir. (1998)

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Kelley v. Shalala, 1st Cir. (1998)

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USCA1 Opinion

United States Court of Appeals

DONNA E. SHALALA, SECRETARY OF HEALTH AND HUMAN SERVICES,

DONNA E. SHALALA, SECRETARY OF HEALTH AND HUMAN SERVICES,

DONNA E. SHALALA, SECRETARY OF HEALTH AND HUMAN SERVICES,

APPEAL FROM THE UNITED STATES DISTRICT COURT

[Hon. Patti B. Saris, U.S. District Judge]

Stahl, Circuit Judge,

Bownes, Senior Circuit Judge,

and Lynch, Circuit Judge.

Phyllis Fine Menken for appellant

Grossman for appellants DeNovellis and Kelley.

John A. Capin, Assistant U.S. Attorney, with whom Donald

January 29, 1998

Health and Human

"hub" offices and

Boston has been

the Universe," the

the United States Department

Services (HHS) in 1996,

into five major

Boston field office lost

larger urban centers and was not designated a hub office.

a result, the Boston office

was directed to shrink its size,

middle management positions. Five middle management employees

positions at locations other than Boston.

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,

2000e-3(a), the Age Discrimination in Employment

Act (ADEA), 29 U.S.C.

621-34, and the Civil Service Reform

(codified as amended in various sections of 5 U.S.C.), saying

alleged racial discrimination by their supervisor.

The plaintiffs have chosen as their battlefield the

of preliminary injunctive relief, and there

All three lost in their applications before the

district court for issuance

Fed. R. Civ. P. 60(b).

of preliminary injunctions under

Although Janey-Burrell obtained from

62(c), a stay pending appeal of the denial of the preliminary

injunction, which the parties have treated as freezing Janey-

not the subject of

could it be by its own terms.

this appeal -- nor

This appeal is from the denial

of the preliminary injunctions under

In the interim, DeNovellis and Kelley have retired.

The claims of DeNovellis and Kelley for

preliminary injunctive relief

are now moot because

As for Janey-Burrell, the district court did not

abuse its discretion in denying the injunction.

describe the facts as to Janey-Burrell; we need

discuss DeNovellis and