Craig Ross et al v. The Board of Trustees of California State University

Filing 13

ORDER DENYING PLAINTIFFS EX PARTE APPLICATION FOR A TEMPORARY RESTRAININGORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION 1 . This Order is without prejudice to Plaintiffs exhausting their administrative remedies by Judge Otis D. Wright, II. (Made JS-6. Case Terminated.) (lc)

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JS-6

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United States District Court
Central District of California

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CRAIG ROSS; NATALIE OPERSTEIN,

Case № 2:16-cv-03778-ODW-JC

Plaintiffs,

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v.

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ORDER DENYING PLAINTIFFS’

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THE BOARD OF TRUSTEES OF

EX PARTE APPLICATION FOR A

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CALIFORNIA STATE UNIVERSITY,

TEMPORARY RESTRAINING

Defendant.

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ORDER AND ORDER TO SHOW

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CAUSE RE: PRELIMINARY

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INJUNCTION [1]

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I.

INTRODUCTION

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On May 31, 2016, Plaintiffs Craig Ross and Dr. Natalie Operstein applied ex

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parte for a temporary restraining order and an order to show cause re: preliminary

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injunction against Defendant Board of Trustees of California State University

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(“CSU”), which seeks to enjoin Defendant from terminating Dr. Operstein’s

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employment.

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application. (ECF No. 1.)

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For the reasons discussed below, the Court DENIES Plaintiffs’

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II.

DISCUSSION

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Plaintiffs state that this application for a temporary restraining order and

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preliminary injunction is made to prevent the termination of Dr. Natalie Operstein's

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employment pending completion of an ongoing Equal Employment Opportunity

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Commission (“EEOC”) investigation into the circumstances surrounding her dispute

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with her employer. However, this application is more accurately a request that the

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Court order CSU to: (1) reverse its June 1, 2015 decision to deny Dr. Operstein’s

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application for early tenure and promotion, (2) rescind its May 27, 2016 decision to

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end her Assistant Professor appointee employment with the university, and (3)

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reinstate her employment as a tenure-track professor.

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Dr. Operstein became a probationary faculty member at California State

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University at Fullerton in 2011. Probationary faculty are typically considered for

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tenure during their sixth probationary year, but are reviewed at regular intervals

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throughout the probationary period and must be reappointed in order to continue the

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probationary cycle. (Graboyes Decl. ¶ 5, ECF No. 12.) Probationary faculty may also

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request early tenure prior to their sixth probationary year. (Id. ¶ 6.)

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CSU’s tenure review process is required by California Education Code section

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89500. (Id. ¶ 4.) In addition, University Policy Statement (“UPS”) 210.000 defines

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the policies and procedures that govern retention, promotion, and tenure of faculty

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members (“RTP”).

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demonstrate continued excellence in teaching, regular publication of scholarly articles

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and notes, publication in peer-reviewed journals, and service. (Id. ¶ 9.)

(Id.)

UPS 210.000 provides that faculty members shall

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In order to be reappointed and continue in the probationary cycle, as well as to

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request tenure or early tenure, probationary faculty must submit a Portfolio and

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Appendices, which are then reviewed at various levels within the University. (Id.

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¶ 7.) The levels of review are conducted by the Department Personnel Committee, the

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Department Chair, the Dean, in certain circumstances the Faculty Personnel

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Committee, and finally the Provost. The Provost makes the final decision; all other

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levels are recommendations to the Provost. (Id.)

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The faculty member under review is given a copy of the recommendation and

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written reasons for it. (Id. ¶ 8.) The faculty member may then submit a rebuttal

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statement or response. A copy of the rebuttal statement or response accompanies the

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RTP File for all future levels of review. (Id.)

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On September 2, 2014, Dr. Operstein applied for early tenure and promotion.

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(Id. ¶ 11.) Dr. Operstein’s review took place between September 2, 2014 and June 1,

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2015. (Id. ¶ 12.) Based on a review of her RTP file, it was found that Dr. Operstein

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did not met the standards of UPS 210.000 and the standards of the Department of

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Personnel based on her lack of continued growth, failure to address concerns raised in

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past review cycles, and insufficient documentation of her accomplishments. (Id. ¶¶

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13, 15.)

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collegiality expected of a successful faculty member as described in UPS 24

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210.000.II.3.a. (Id. ¶ 14.)

In addition, it was found that Dr. Operstein had not demonstrated the

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On June 1, 2015, CSU sent Dr. Operstein a letter notifying her that she would

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not receive early tenure and would not be reappointed to a further probationary year.

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(Id. ¶ 15.) Instead, the letter stated that her employment as an academic appointee

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would be terminated effective May 27, 2016, which was the close of the next

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academic year. (Id. ¶ 17.) Dr. Operstein confirmed receipt of the letter on June 13,

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2015. (Id.)

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In 2012, Dr. Operstein claims that CSU instituted a new policy of changing the

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ethnicity of campus faculty to mirror that of the student body (dominated mostly by

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Hispanic students), and that she has been systematically and continually harassed and

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discriminated against by CSU’s officials, supervisors, and employees. (Memorandum

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of Points and Authorities (“Mem. P. & A.”) 4, ECF No. 2.) However, Dr. Operstein

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provides little to no evidence for either of these propositions.

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She claims that her purported lack of progress was simply a pretext for CSU

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denying her promotion and tenure and ultimately terminating her. (Id.) Indeed, she

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claims that during the whole period of the tenure-track contract, she demonstrated

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strong and impeccable performance in each of the three required areas—scholarship,

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teaching, and service to profession, university, and community. (Id. at 4.)

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Between March 2013 and May 2014, Dr. Operstein made several internal

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discrimination complaints regarding a male coworker, and in January 2015, February

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2015, and May 2015, she claimed that her negative evaluations were discriminatory

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and retaliatory. (Id. at 13.) In March 2015, she filed discrimination complaint with

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the EEOC, and in May 2015, she filed a retaliation complaint with the EEOC.

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14.) On May 16, 2016, she requested that the EEOC seek a preliminary injunction

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preventing CSU from terminating her employment. (Ross Decl. ¶ 6, ECF No. 3.) Dr.

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Operstein is yet to receive a response. (Id.) In addition, Plaintiffs have not yet

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received a right to sue letter from the EEOC, and as such, Plaintiffs cannot file a

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Complaint with this Court.

(Id.

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On May 31, 2016, Plaintiffs filed this ex parte application for a temporary

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restraining order and order to show cause re: preliminary injunction, seeking to

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maintain the status quo of Dr. Operstein’s employment as it existed on or before May

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27, 2016. (ECF No. 1.) That application is now before the Court for consideration.

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The law of the circuit is that in a “limited class of cases” a district court has

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jurisdiction to grant a preliminary injunction in a Title VII case before the completion

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of the administrative process in order to maintain the status quo. Duke v. Langdon,

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695 F.2d 1136, 1137 (9th Cir. 1983). This rule applies to federal employees as well as

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to private employees. See Porter v. Adams, 639 F.2d 273, 278 (5th Cir. 1981);

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McGinnis v. United States Postal Service, 512 F. Supp. 517, 521 (N.D. Cal. 1980).

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“The usual tests for a preliminary injunction apply to employment

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discrimination cases.” Anderson v. United States, 612 F.2d 1112, 1116 (9th Cir.

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1980). In addition, “the standard for issuing a temporary restraining order is identical

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to the standard for issuing a preliminary injunction.” Lockheed Missile & Space Co.

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v. Hughes Aircraft Co., 887 F. Supp. 1320, 1323 (N.D. Cal. 1995). As such, one

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moving for a preliminary injunction must demonstrate either probable success on the

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merits and irreparable injury, or that serious questions are raised and the balance of

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hardships are tipped sharply in his favor. Anderson, 612 F.2d at 1115.

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The Court need not address whether Dr. Operstein has made a showing of

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probable success on the merits or whether serious questions are raised because the

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Court finds that she has not demonstrated either irreparable injury or that the balance

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of hardships tips sharply in her favor. Weighing the hardships of the parties, it is

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apparent that if Dr. Operstein ultimately prevails, she can regain her job with back

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pay, and thus will have suffered no irreparable harm absent the injunction. However,

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if CSU ultimately prevails, then forcing the University to retain a potentially

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undesirable employee could adversely affect the public interest in ways that could not

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subsequently be remedied. In addition, CSU may suffer the loss of benefit of some

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other employee’s services and loss of morale from having to retain an employee

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beyond the time it wished to discharge her.

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The Court has reviewed the declarations presented by Plaintiffs in support of

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the ex parte application, and concludes that there is no such showing of irreparable

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injury or hardship so as to entitle her to an injunction. Therefore, this Court DENIES

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Plaintiffs’ ex parte application for a temporary restraining order and preliminary

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injunction. (ECF No. 1.) This Order is without prejudice to Plaintiffs exhausting their

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administrative remedies.

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IT IS SO ORDERED.

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June 14, 2016

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____________________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE

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