LaRiviere v. Board of Trustees of Southern Illinois University et al
Filing
58
ORDER denying 52 Motion for Preliminary Injunction. See Order for details. Signed by Judge David R. Herndon on 6/8/17. (lmp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JANICE LARIVIERE,
Plaintiff,
vs.
BOARD OF TRUSTEES OF
SOUTHERN ILLINOIS UNIVERSITY,
Governing SOUTHERN ILLINOIS
UNIVERSITY – EDWARDSVILLE;
PAUL FULIGNI, DONNA MEYER,
and KENNETH NEHER, Individually
Case No. 16-cv-1138-DRH-SCW
Defendants.
MEMORANDUM and ORDER
HERNDON, District Judge:
I.
Introduction and Background
Before the Court is plaintiff’s motion for preliminary injunction. (Doc. 52).
Specifically, plaintiff seeks to enjoin defendants from “(1) terminating the
plaintiff’s continuing appointment set to expire May 5, 2017; and (2) calling, and
sending intimidating messages and letters to the Plaintiff about her continued
employment with SIUE.” (Doc. 52, pg. 1). For the reasons explained below, the
Court DENIES plaintiff’s motion for preliminary injunction.
Plaintiff, Janice LaRiviere, is a former Southern Illinois University
Edwardsville (hereinafter “SIUE”) employee who served in an administrative
position within the Department of Facilities Management from 2005-2014. (Doc.
42, pg. 3-4). The Court notes here that plaintiff makes conflicting statements
about her title and position during that time. (Doc. 42, pg. 3, ¶ 12 and Doc. 52,
pg. 1). Plaintiff was hired pursuant to a continuing appointment, which was to be
renewed automatically each year unless she was given notice. (Doc. 42, pg. 4).
Employees appointed three or more times, of which plaintiff is one, shall be given
no less than one year’s notice of their non-reappointment. (Doc. 42, pg. 4). Again,
the Court notes that plaintiff makes conflicting statements about the number of
times she was reappointed. (Doc. 42, pg. 4, ¶ 12 and Doc. 52, pg. 2). Defendants
Fuligni, Meyer, and Neher are employed in supervisory positions at SIUE and
have direct authority over plaintiff. (Doc. 42, pg. 4). Plaintiff has had a history of
filing complaints and lawsuits alleging discrimination, harassment and/or
retaliation against one or more of the defendants in both Illinois State and Federal
court since 2011. (Doc. 52, pg. 2; Doc 42, pg. 4-5).
Plaintiff alleges on May 5, 2016, defendant SIUE terminated her continuing
appointment with no notice and simultaneously converted it to a term
appointment set to expire May 5, 2017. (Doc. 42, pg. 7; Doc. 52, pg. 2). She
claims this was because it would then be possible to “remove the Plaintiff before
the end of the term appointment, without regard to seniority, skills, knowledge, or
abilities, and with as short of notice as the Defendant deems necessary….” (Doc.
52, pg. 2; Doc. 42, pg. 7-8). Plaintiff’s term appointment will conclude two years
before she is eligible to receive minimum retirement benefits. (Doc. 52, pg. 2; Doc.
42, pg. 7). Further, employees on term appointments may be removed prior to the
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expiration of the term appointment for “just cause and/or by appropriate notice as
reorganization or retrenchment may require.” SIUE Admin. Prof. Staff Proc.
Manual
2.3. Plaintiff contends that she has never been required to undergo
evaluation for unsatisfactory performance, as required by SIUE Administrative
Professional Staff Procedure Manual 2.18, because she has “never been
disciplined, warned, reprimanded, or even consulted about… her work product
or attitude….” (Doc. 52, pg. 3). She states that without appropriate notice, she
was “constructively discharged and her job responsibilities were materially
altered” because she was “removed to a remote job site and exposed to intolerable
work
conditions[,]
inoperable
toilets,
no
hot
water,
[and]
inadequate
circulation….” (Doc. 52, pg. 3; Doc. 42, pg. 15).
Following the termination of continuing appointment, plaintiff filed an
internal complaint with the University’s Office of Equal Opportunity, Access, and
Title IX Coordination (“EOC”) alleging race discrimination and retaliation by
defendants Fuligni, Meyer, and Neher. Doc. 52, Pg. 3. There was an investigation
conducted, a report disseminated, and a conclusive finding that plaintiff’s duties
were changed and that there was going to be a reorganization of the department.
(Doc. 52, pg. 3). Furthermore, the investigation found that “the determination to
change the Complainant’s contract status to a term contract [was] an adverse
employment action.” (Doc. 52, pg. 3-4). This determination appears to have been
made as a result of plaintiff being the first administrative professional changed to
a term appointment, the “only occupant” at her new job site, and there being four
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administrative professional staff employees with less seniority who did not feel
similar effects on employment. (Doc. 52, pg. 4).
Lastly, plaintiff alleges that around March 3, 2017, defendant Fuligni
“began repeatedly calling Plaintiff and leaving voicemail messages stating that
although he was aware that Plaintiff was out on sick leave until May 5, 2017, he
wanted her to clear out her office.” (Doc. 52, pg. 4). When there was no response,
defendant Fuligni mailed plaintiff a letter dated March 27, 2017, advising her that
her desktop computer and telephone had been removed from her office and that
she needed to take the following actions: (1) remove all of her personal items from
her office, (2) provide to him anything she has completed for her work
assignments, (3) return her P-card, (4) return all University keys, and (5) return
any other University property she has in her possession. (Doc. 52, pg. 4).
II.
Legal Standard
In order to obtain a preliminary injunction under Rule 65, plaintiff must
demonstrate the following: (1) her underlying case has some likelihood of success
on the merits, (2) no adequate remedy at law exists, and (3) she will suffer
irreparable harm without the injunction. Woods v. Buss, 496 F.3d 620, 622 (7th
Cir. 2007); Fed. R. Civ. P. 65. If those three factors are shown, the Court must
then balance the harm to each party and to the public interest from granting or
denying the injunction. Id.; Korte v. Sebelius, 735 F.3d 654, 665 (7th Cir. 2013);
Cooper v. Salazar, 196 F.3d 809, 813 (7th Cir. 1999). The United States Supreme
Court has emphasized that a “preliminary injunction is an extraordinary and
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drastic remedy, one that should not be granted unless the movant, by a clear
showing, carries the burden of persuasion.” Christian Legal Soc’y v. Walker, 453
F.3d 853, 870 (7th Cir. 2006) (quoting Mazurek v. Armstrong, 520 U.S. 968, 972
(1997) (emphasis in original)).
III.
Preliminary Injunction
Plaintiff does not meet the prong for showing that she will suffer irreparable
harm; therefore, regardless of whether the other two prongs are met, the test for
obtaining a preliminary injunction fails. Thus, the Court will limit its analysis to
the irreparable harm prong. Under that prong, the kind of harm that the Court is
concerned about “is not harm tout court but rather irreparable harm.” Turnell v.
CentiMark Corp., 796 F.3d 656, 666 (7th Cir. 2015); See also Roland Machinery
Co. v. Dresser Industries, Inc., 749 F.2d 380, 386 (7th Cir. 1984). Only if the
plaintiff will suffer harm that cannot be prevented or fully rectified by the final
judgment after trial can he get a preliminary injunction. Roland, 749 F.2d at 386.
Thus, when it is only damages that are sought, the adequate remedy and
irreparable harm requirements merge because the question becomes whether the
plaintiff will be made whole if he prevails on the merits and is awarded the
damages he or she seeks. Id. The Seventh Circuit has held that to be inadequate,
the damages must be “seriously deficient as a remedy for the harm suffered.” Id.
In the employment context, the type of injury must “depart from the harms
common to most discharged employees.” Bedrossian v. Northwestern Memorial
Hosp., 409 F.3d 840, 845 (7th Cir. 2005) (citing Sampson v. Murray, 415 U.S.
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61, 92 (1974)). Thus, humiliation, damages to reputation, loss of income due to
purportedly wrongful termination, inability to find another job, or other
speculative injuries do not rise to the level of irreparable harm. Id. at 845-46; See
also East St. Louis Laborers’ Local 100 v. Bellon Wrecking & Salvage Co., 414
F.3d 700, 704-05 (7th Cir. 2005) and E.E.O.C. v. City of Janesville, 630 F.2d
1254, 1259 (7th Cir. 1980). Furthermore, even in the case of race or sex
discrimination, reinstatement pending trial is an extraordinary remedy. E.E.O.C.,
630 F.2d at 1259. The purpose of the irreparable harm requirement is to “take
care of the case where although the ultimate relief that the plaintiff is seeking is
equitable, implying that he has no adequate remedy at law, he can easily wait till
the end of trial to get that relief.” Roland, 749 F.2d at 386.
Plaintiff contends that if defendants are not enjoined from terminating her
continuing appointment, she “will be unemployed and not able to provide for
herself or her family, [as] she is ineligible to receive minimum retirement benefits
after 15 years of employment with the University.” (Doc. 52, pg. 13). Plaintiff
claims it is “highly unlikely if not impossible to regain the professional status,
position and tenure with other employment as she has accumulated with the
University.” (Doc. 52, pg. 13). Lastly, plaintiff states “it will be unduly
burdensome… to pay for the basic expenses incurred in pursuing this lawsuit”
and her “mental and emotional decline will be accelerated and exacerbated if the
Defendants are not enjoined….” (Doc. 52, pg. 13).
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Conversely, defendants contend plaintiff’s injuries relate “to lost salary and
benefits and thus are easily defined and calculable.”(Doc. 54, pg. 6). In so
contending, defendants argue that plaintiff “has failed to set forth any harm that
depart[s] from the harms common to most discharged employees.’” (Doc. 54, pg.
7). In particular, defendants state that the injuries suffered are “the exact type of
damage that almost every terminated employee suffers or claims to suffer.” (Doc.
54, pg. 7).
Here, the Court finds that plaintiff will not suffer harm that cannot be
prevented or fully rectified by a final judgment after trial. Thus, a preliminary
injunction is improper because only damages are sought, plaintiff can be made
whole if she prevails on the merits of her claims, and the damages will not be
“seriously deficient as a remedy for the harm suffered.” In particular, the types of
injuries complained of here do not “depart from the harms common to most
discharged employees.” Plaintiff is complaining of injuries similar to those found
not to be irreparable in Bedrossian and Sampson, namely unemployment,
inability to provide for herself and her family, ineligibility for retirement benefits,
inability to regain professional status, position and tenure in other employment,
inability to pay basic expenses for this suit, and the decline of her mental and
emotional facilities. The Court chooses not to go against the well-established
authority that holds these claims of injury are easily calculable and reparable by a
final judgment.
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IV.
Conclusion
For the foregoing reasons, the Court DENIES plaintiff’s motion for
preliminary injunction. (Doc. 52).
IT IS SO ORDERED.
Signed this 8th day of June 2017.
Digitally signed by Judge David
R. Herndon
Date: 2017.06.08 16:05:03
-05'00'
United States District Judge
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