Heineke v. Santa Clara University et al

Filing 22

ORDER by Judge Lucy H. Koh Finding as Moot 9 Motion for TRO; Denying 14 Motion for TRO; Denying 18 Motion for Leave to File Reply (lhklc1, COURT STAFF) (Filed on 9/15/2017)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10
SAN JOSE DIVISION

United States District Court
Northern District of California

11
12

JOHN M HEINEKE,
Plaintiff,

13
14
15
16

Case No. 17-CV-05285-LHK
ORDER DENYING EMERGENCY
MOTION FOR TEMPORARY
RESTRAINING ORDER OR
PRELIMINARY INJUNCTION

v.
SANTA CLARA UNIVERSITY, et al.,

Re: Dkt. Nos. 14, 18

Defendants.

17
18

On September 12, 2017, Plaintiff John Heineke filed a complaint against Defendants Santa

19

Clara University (“SCU”) and a named former student (“Student A”) alleging age discrimination,

20

wrongful termination, intentional infliction of emotional distress, negligent infliction of emotional

21

distress, breach of contract, breach of the covenant of good faith and fair dealing, and defamation.

22

ECF No. 1 (“Compl.”). On September 13, 2017, Plaintiff filed an emergency motion for a

23

temporary restraining order or preliminary injunction. ECF Nos. 9, 14 (“Mot.”). Counsel for

24

Plaintiff certified that he provided notice of the emergency motion to counsel for SCU. ECF No. 8

25

at 3. SCU’s counsel stated that SCU opposed the requested relief. Id. Also on September 13,

26

2017, the Court ordered SCU to respond to the emergency motion. ECF No. 16. SCU responded

27
28

1
Case No. 17-CV-05285-LHK
ORDER DENYING EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER OR PRELIMINARY
INJUNCTION

1

on September 14, 2017. ECF No. 17 (“Opp.”). Plaintiff filed a motion for leave to file a reply on

2

September 15, 2017, ECF No. 18. Because the reply exceeds the page limit set forth in Civil

3

Local Rules 7-3(c) and 7-4(b), the Court DENIES Plaintiff’s motion and STRIKES the reply.

4

However, the Court notes that the arguments in the reply would not have changed the Court’s

5

conclusion. Having considered the submissions of the parties, the relevant law, and the record in

6

this case, the Court DENIES Plaintiff’s emergency motion for a temporary restraining order or

7

preliminary injunction.

8

The standard for issuing a temporary restraining order is identical to the standard for
issuing a preliminary injunction. Henry Schein, Inc. v. Cook, 191 F. Supp. 3d 1072, 1076 (N.D.

10

Cal. 2016) (citing Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th

11
United States District Court
Northern District of California

9

Cir. 2001)). “A plaintiff seeking a preliminary injunction must establish that he is likely to

12

succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary

13

relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”

14

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (emphasis added). A plaintiff

15

must make “a certain threshold showing . . . on each factor.” Leiva-Perez v. Holder, 640 F.3d

16

962, 966 (9th Cir. 2011) (discussing Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127,

17

1131-32 (9th Cir. 2011)). The party seeking the injunction bears the burden of proving these

18

elements. Klein v. City of San Clemente, 584 F.3d 1196, 1201 (9th Cir. 2009). “A preliminary

19

injunction is ‘an extraordinary and drastic remedy, one that should not be granted unless the

20

movant, by a clear showing, carries the burden of persuasion.’” Lopez v. Brewer, 680 F.3d 1068,

21

1072 (9th Cir. 2012) (citation omitted) (emphasis in original).

22

Plaintiff is a 79-year-old tenured professor of economics at SCU. In 2015, Student A, then

23

a student of his, accused Plaintiff of sexual harassment and filed a complaint with SCU’s Office of

24

EEO & Title IX. Compl. ¶¶ 28, 32; Mot. at 2. Student A chose not to pursue the complaint at that

25

time. Compl. ¶ 33; Mot. at 2. Plaintiff denies the allegations.

26
27
28

In 2017, another student (“Student B”) of Plaintiff’s filed a complaint accusing him of
2
Case No. 17-CV-05285-LHK
ORDER DENYING EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER OR PRELIMINARY
INJUNCTION

1

sexual harassment. Mot. at 3; Mot. Exh. 8 at 1. SCU hired a neutral investigator to investigate the

2

charges. The investigator found that a preponderance of the evidence did not support Student B’s

3

allegations of sexual harassment. Mot. at 3; Exh. 8 at 1-3. In the course of the investigation into

4

Student B’s claims, however, the investigator learned of Student A’s complaint and interviewed

5

her. Mot. at 3; Mot. Exh. 9 at 2; Compl. ¶¶ 37-38. The investigator then opened a formal

6

investigation into Student A’s complaint.

7

Following an investigation that included interviewing Plaintiff, Student A, and seven
witnesses, and reviewing emails between Plaintiff and Student A, the investigator issued a report

9

on June 19, 2017. Mot. Exh. 9. The investigator found based on a preponderance of the evidence

10

that Plaintiff violated SCU’s Gender-Based Discrimination and Sexual Misconduct Policy as well

11
United States District Court
Northern District of California

8

as Policy 311 of the Staff Policy Manual. Id. at 54. SCU’s EEO and Title IX Coordinator adopted

12

this finding on June 23, 2017. Id. at 55. The investigator issued an addendum on August 9, 2017,

13

to respond to objections raised by Plaintiff. The investigator’s conclusions remained the same.

14

Mot. Exh. 10 at 50. Plaintiff then submitted an “addendum to the addendum.” Mot. Exh. 13 at 1.

15

On August 20, 2017, SCU Provost Dennis Jacobs accepted the findings of the

16

investigation. Id. In a letter, Jacobs informed Plaintiff that Plaintiff’s “unwelcome, sexual, verbal,

17

written, online and physical contact amounts to gross misconduct and subjects [Plaintiff] to

18

dismissal from the university and loss of tenure, effective Sept. 5, 2017.” Id. at 2. The letter

19

provided that Plaintiff could appeal the decision by submitting a written appeal within ten days.

20

Id. Pursuant to an extension granted by SCU, Plaintiff submitted an appeal on September 12,

21

2017. Compl. ¶ 45; Guthrie Decl. ¶¶ 8-9; Exh. 3 to Guthrie Decl. SCU granted Plaintiff until the

22

close of business on September 29, 2017 to submit any additional materials he would like to be

23

considered as part of his appeal. Guthrie Decl. ¶ 9; Exh. 4 to Guthrie Decl. SCU suspended

24

Plaintiff with pay pending the resolution of his appeal. Compl. ¶ 46; Mot. at 9; Guthrie Decl. ¶ 8;

25

Exh. 3 to Guthrie Decl.

26
27
28

The fall quarter begins on September 18, 2017. Mot. at 9; Compl. at ¶ 46. Plaintiff
3
Case No. 17-CV-05285-LHK
ORDER DENYING EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER OR PRELIMINARY
INJUNCTION

1

contends that SCU has already announced that Plaintiff is “on leave” for the fall quarter. Mot. at

2

9. SCU states that it has arranged for other professors to teach Plaintiff’s classes, Guthrie Decl.

3

¶ 10, but that it has not disclosed Plaintiff’s suspension to anyone without a business need to

4

know, Opp. at 20.

5

Plaintiff argues that, in the absence of a temporary restraining order or preliminary

6

injunction, SCU’s suspension of him pending his appeal’s resolution will cause irreparable harm

7

to his reputation and career. Mot. at 9. First, Plaintiff contends that, given his age, any suspension

8

or termination will eliminate any other employment opportunities. Mot. at 13-14. Plaintiff also

9

contends that “given the nature of the false accusations alleged against him, the damage to his

10

United States District Court
Northern District of California

11

reputation likely also forecloses any other employment opportunities.” Id. at 14.
The Court concludes that Plaintiff has failed to establish a threshold showing of irreparable

12

harm. This conclusion is supported by ample precedent from the United States Supreme Court,

13

the Ninth Circuit, this Court, and other federal courts. The U.S. Supreme Court’s decision in

14

Sampson v. Murray, 415 U.S. 61 (1974), is instructive. In Sampson, a federal employee sought to

15

enjoin her dismissal pending resolution of her administrative appeal. Id. at 63. The employee

16

argued that, absent an injunction, she would be irreparably harmed because “spurious and

17

unrebutted charges against her might remain on the record” and “she would suffer the

18

embarrassment of being wrongfully discharged in the presence of her coworkers.” Id. at 89. The

19

federal employee also argued that she would be irreparably harmed because she would be denied

20

an income. Id. The D.C. Circuit “intimated that either loss of earnings or damage to reputation

21

might afford a basis for finding irreparable injury,” but the U.S. Supreme Court disagreed, saying

22

that a showing of lost earnings and reputational harm “falls far short of the type of irreparable

23

injury which is a necessary predicate to the issuance of a temporary injunction.” Id. at 91-92. In a

24

footnote, the U.S. Supreme Court observed, “We have held that . . . difficulties in immediately

25

obtaining other employment—[an] external factor[] common to most discharged employees and

26

not attributable to any unusual actions relating to the discharge itself—will not support a finding

27
28

4
Case No. 17-CV-05285-LHK
ORDER DENYING EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER OR PRELIMINARY
INJUNCTION

1

of irreparable injury, however severely they may affect a particular individual.” Id. at 93 n.68.

2

In the instant case, like in Sampson, Plaintiff alleges that he will suffer irreparable harm

3

from the allegedly false accusations against him and from the injury to his reputation from being

4

suspended. Unlike in Sampson, however, Plaintiff will be suspended with full pay pending the

5

outcome of his administrative appeal. As a result, Plaintiff’s claim to injury in the instant case is

6

even weaker than the federal employee’s claim in Sampson, which the U.S. Supreme Court held

7

was insufficient to support injunctive relief.
Applying Sampson, the Ninth Circuit has rejected assertions of irreparable harm stemming

8
9

from lost income, reputational damage, and psychological injury. In Hartikka v. United States,
754 F.2d 1516 (9th Cir. 1985), the Ninth Circuit held that lost income, lost retirement and

11
United States District Court
Northern District of California

10

relocation pay, and damage to a military service member’s reputation resulting from the stigma of

12

a less-than-honorable discharge did not constitute irreparable harm. Id. at 1518. Similarly, in

13

Kennedy v. Secretary of Army, 191 F.3d 460 (9th Cir. 1999) (unpublished table decision), the

14

Ninth Circuit held that lost military benefits, damage to the service member’s reputation, and

15

damage to his mental health would not support a finding of irreparable harm.1 Id. at *2; see also

16
17
18
19
20
21
22
23
24
25
26
27
28

1

In his reply, Plaintiff relies on Arizona Dream Act Coalition v. Brewer, 757 F.3d 1053 (9th Cir.
2014), Herb Reed Enterprises, LLC v. Florida Entertainment Management., Inc., 736 F.3d 1239
(9th Cir. 2013), and Cassim v. Bowen, 824 F.2d 791 (9th Cir. 1987) for the proposition that
reputational injury and “loss of opportunity to pursue one’s profession” constitute irreparable
harm. These cases are distinguishable. First, in Arizona Dream Act Coalition, the Ninth Circuit
stated that “[t]he loss of opportunity to pursue [Plaintiffs’] chosen profession[s] constitutes
irreparable harm.” 757 F.3d at 1068 (internal quotation marks omitted) (alterations in original).
The Court finds that any such lost opportunity in the instant case is speculative at best. Plaintiff’s
administrative appeal is still pending and a successful outcome in that appeal or in the instant case
could result in his reinstatement. See Singh v. Sch. Dist. of Phila., No. 10-2028, 2010 WL
3220336, at *6-7 (E.D. Penn. Aug. 11, 2010). In addition, Plaintiff has not submitted any
evidence that he would be unable to obtain other employment, making his assertions to that effect
speculative. See Holcomb v. Cal. Board of Psychology, No. 2:15-cv-02154, 2015 WL 7430625, at
*4 (E.D. Cal. Nov. 23, 2015); Brown v. District of Columbia, 888 F. Supp. 2d 28, 31-34 (D.D.C.
2012). Second, Herb Reed was a trademark case dealing with a company’s business reputation
and goodwill. 736 F.3d at 1250. Plaintiff cites no authority to suggest that the standards for
analyzing harm to business reputation and harm to an individual’s professional reputation are the
same—indeed, Samson, Hartikka, and Kennedy show that it is not. Finally, in Cassim, the Ninth
Circuit summarily stated that Cassim, a surgeon who was suspended from the Medicare program,
“has shown the possibility of irreparable injury.” 824 F.2d at 796. Cassim provides little support
to Plaintiff, however, because it was abrogated by the U.S. Supreme Court’s decision in Winter,
5
Case No. 17-CV-05285-LHK
ORDER DENYING EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER OR PRELIMINARY
INJUNCTION

1

Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1320 (9th Cir. 1994) (holding that plaintiff had adequate

2

remedy at law for claims seeking money damages and back pay for the loss of her job); Loft v.

3

Stationary Engineers, Local 39, 2014 WL 709980, at *4 (N.D. Cal. Feb. 24, 2014) (finding loss of

4

job and pension benefits is not irreparable); Belzer v. American Airlines, 2007 WL 685865, at *2

5

(E.D. Cal. Mar. 5, 2007) (finding no irreparable harm where airline pilot alleged he would suffer

6

loss of employment and health benefits).

7

The particular circumstances of Plaintiff’s case that might distinguish it from Sampson,
Hartikka, and Kennedy—the nature of Plaintiff’s employment as a tenured professor, the nature of

9

the allegations against him, Plaintiff’s advanced age, and his alleged emotional distress—do not

10

require a different result. First, other courts have regularly held in the context of academia that

11
United States District Court
Northern District of California

8

damage to a professor’s professional reputation resulting from adverse tenure or employment

12

decisions or disciplinary proceedings does not constitute irreparable harm for the purposes of a

13

preliminary injunction. See Bagley v. Yale Univ., No. 3:13–cv–1890, 2014 WL 7370021, at *5-6,

14

10 (D. Conn. Dec. 29, 2014) (finding damage to professional reputation, including in academia, to

15

be both speculative and compensable by money damages at trial); Weathers v. Univ. of N.C. at

16

Chapel Hill, 2008 WL 5110952, at *3-4 (M.D.N.C. Dec. 4, 2008) (finding no irreparable harm

17

where refusal to grant tenure would cause professor to lose status as principal investigator on a

18

grant and would damage her reputation and employability); Halikas v. Univ. of Minn., 856 F.

19

Supp. 1331, 1334 (D. Minn. 1994) (finding no irreparable harm where professor of medicine

20

claimed reputational damage from university’s investigation into and suspension of his research).

21

Second, in Choudhry v. Regents of University of California, No. 16-cv-5281, 2016 WL

22

6611067 (N.D. Cal. Nov. 9, 2016), which bears some strong factual similarities to the instant case,

23

the court found that there was no irreparable harm where a university dean remained a tenured,

24
25
26
27
28

which required that a plaintiff show that irreparable harm is likely, not just possible. See Winter,
555 U.S. at 22. Accordingly, the Court finds that Sampson, Hartikka, Kennedy, and the other
cases discussed above below are more directly on point and more persuasive than those relied on
by Plaintiff.
6
Case No. 17-CV-05285-LHK
ORDER DENYING EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER OR PRELIMINARY
INJUNCTION

1

paid faculty member but had no teaching responsibilities during the pendency of a sexual

2

harassment investigation. Id. at *2, 7. Moreover, it is undisputed that Plaintiff’s appeal within

3

SCU is still pending, and presumably any reputational injury would “be largely negated should

4

[h]e ultimately prevail” in that appeal or in the instant case. Hines v. Cal. Public Utilities

5

Comm’n, No. C–10–2813, 2011 WL 724658, at *2 (N.D. Cal. Feb. 23, 2011).

6

Third, other courts have rejected the assertion that a plaintiff’s advanced age will make

7

finding a new job difficult or impossible, thereby rendering an adverse employment action

8

irreparable. See Holcomb v. Cal. Board of Psychology, No. 2:15-cv-02154, 2015 WL 7430625, at

9

*4 (E.D. Cal. Nov. 23, 2015) (finding no irreparable harm where plaintiff alleged that in the
absence of a temporary restraining order she would lose her job, be unable to find employment

11
United States District Court
Northern District of California

10

due to her advanced age, and possibly become homeless as a result); Brown v. District of

12

Columbia, 888 F. Supp. 2d 28, 31-34 (D.D.C. 2012) (finding no irreparable harm where professor

13

was denied tenure despite alleged harm to her professional reputation, an effective end to her

14

teaching career, a loss of income, and a difficult transition period due to her age and health); Singh

15

v. Sch. Dist. of Phila., No. 10-2028, 2010 WL 3220336, at *6-7 (E.D. Penn. Aug. 11, 2010)

16

(finding no irreparable harm where 59-year-old tenured teacher was allegedly illegally dismissed

17

because economic harm cannot constitute irreparable harm and reinstatement was available as a

18

remedy at trial).

19

Fourth, other courts have refused to find irreparable harm based on emotional distress

20

caused by adverse employment decisions. See Kennedy, 191 F.3d 460 at *2; DeNovellis v.

21

Shalala, 135 F.3d 58, 64 (1st Cir. 1998) (“[T]he fact that an employee may be psychologically

22

troubled by an adverse job action does not usually constitute irreparable injury warranting

23

injunctive relief.”); Brown, 888 F. Supp. 2d at 31-32; Pollis v. New School for Social Research,

24

829 F. Supp. 584, 591-601 (S.D.N.Y. 1993) (finding no irreparable harm when 70-year-old

25

professor claimed emotional and psychological distress from being forced to transition from a full-

26

time professorship to an adjunct position).

27
28

7
Case No. 17-CV-05285-LHK
ORDER DENYING EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER OR PRELIMINARY
INJUNCTION

1

Because Plaintiff has not made the required threshold showing of irreparable harm, the

2

Court need not address the other three Winter factors. See Bagley, 2014 WL 7370021, at *5 (“If a

3

plaintiff does not or cannot demonstrate irreparable harm if a preliminary injunction is not granted,

4

the injunction will not be granted.”). Accordingly, Plaintiff’s motion for a temporary restraining

5

order or preliminary injunction is DENIED.

6

IT IS SO ORDERED.

7
8
9
10

Dated: September 15, 2017
______________________________________
LUCY H. KOH
United States District Judge

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

8
Case No. 17-CV-05285-LHK
ORDER DENYING EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER OR PRELIMINARY
INJUNCTION