Stern v. Shulkin

Filing 58

MEMORANDUM-DECISION AND ORDER denying 41 Motion for Preliminary Injunction. Signed by U.S. District Judge Mae A. D'Agostino on 12/18/2019. (ban)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
ERIN E. STERN,
Plaintiff,
vs.

5:18-CV-71
(MAD/TWD)

DAVID J. SHULKIN, M.D.,
Secretary of Veterans Affairs,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

KALBIAN HAGERTY, LLP
888 17th Street, N.W.
Ste 1000
Washington, DC 20006
Attorneys for Plaintiff

ERIC LEE SIEGEL, ESQ.
EVAN MICHAEL LISULL, ESQ.

OFFICE OF THE UNITED STATES
ATTORNEY - SYRACUSE
P.O. Box 7198
100 South Clinton Street
Syracuse, New York 13261-7198
Attorneys for Defendant

RANSOM P. REYNOLDS, III, ESQ.

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff commenced this action on January 17, 2018, alleging violations of the
Rehabilitation Act and Title VII of the Civil Rights Act of 1964. See Dkt. No. 1. Plaintiff later
obtained counsel and filed a second amended complaint. See Dkt. No. 21. In her second amended
complaint, Plaintiff alleges that Defendant subjected her to discrimination on the basis of her sex
and disability and retaliated against her for engaging in protected activities, in violation of Title

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VII and the Rehabilitation Act. See id. at 1. Plaintiff has filed a motion for a preliminary
injunction. See Dkt. No. 41. Specifically, Plaintiff seeks to prevent the execution of a Proposed
Removal Action issued by the Bureau of Veteran's Affairs (the "VA") and to prohibit certain
former and current supervisors from entering Plaintiff's home at any time during the pendency of
this action.1 See Dkt. No. 41-1 at 1. Oral argument on the motion was held on Tuesday,
December 10, 2019. For the following reasons, Plaintiff's motion is denied.
II. BACKGROUND
Plaintiff has been an employee of the VA since 2012. See Dkt. No. 41-1 at 8. The
complaint alleges repeated discrimination based upon Plaintiff's gender and disability, and
retaliation for engaging in protected activities. See Dkt. No. 21. In September 2017, Plaintiff
filed a formal EEOC discrimination complaint with the VA's Office of Resolution Management
(the "ORM") alleging a hostile work environment. 2 See Dkt. No. 21 at ¶¶ 60, 66. On October 17,
2017, the agency dismissed Plaintiff's complaint, finding that Plaintiff's complaint failed to state a
claim. See id. at ¶¶ 67-68. In January 2018, Plaintiff filed a second EEOC complaint with the
VA's ORM. See id. at ¶ 151. In that complaint, Plaintiff alleged a hostile work environment,
discrimination on the basis of gender and disability, and retaliation for engaging in a protected
activity. See id. at ¶ 153. On January 22, 2019, the VA proposed to remove Plaintiff from federal
service. See id. at ¶ 177. Plaintiff believed the VA's action was discriminatory. On January 31,
2019, the ORM completed its investigation and notified Plaintiff of her right to a hearing before

Plaintiff seeks to prevent the following individuals from having in-person contact with
her at her residence while she teleworks: Donna Mallia, Nick Pamperin, Antionette Zingdale,
Rebecca Celucci, Kevin Esslinger, and Kristen Swanson. See Dkt. No. 41-1 at 7.
1

Plaintiff also alleged violations of the Whistleblower Protection Act, but those claims
and related retaliation allegations are not part of this action. See Dkt. No. 21 at ¶ 60.
2

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the EEOC. See id. at ¶ 182. Plaintiff requested a hearing, but now seeks to pursue the same
claims in this action. See id. at ¶ 183.
Plaintiff also has a pending appeal with the Merit System Protection Board ("MSPB").
See Dkt. No. 41-1 at 8. Plaintiff claims that the appeal is related to her whistleblower allegations,
but indicates that other actions are being reviewed by the MSPB. See id.; Dkt. No. 41-2 at ¶ 5.
Additionally, as part of a prior MSPB appeal from a 2018 dismissal of her actions for failure to
exhaust administrative remedies, Plaintiff agreed to mediate a universal resolution of her MSPB
and EEO claims. See id. at 9. However, it appears that a settlement was not reached due to the
proposed removal action to terminate her employment. See id. Currently, Plaintiff's appeal is
pending before the MSPB and there is a stay on the proposed removal action in place from the
VA's Office of Accountability and Whistleblower Protection (the "OAWP"). See id. at 10.
III. DISCUSSION
A.

Jurisdiction
In response to Plaintiff's motion for a preliminary injunction, the Government argues that

the Court does not have subject matter jurisdiction in this case. See Dkt. No. 47 at 4. The
Government suggests that the Civil Service Reform Act (the "CSRA") implicitly precludes federal
district court jurisdiction over Plaintiff's claims. See Dkt. No. 47 at 5 (citing Tilton v. SEC, 824
F.3d 276 (2d Cir. 2016)). Plaintiff argues that the Court has subject matter jurisdiction over her
Title VII and Rehabilitation Act claims. See Dkt. No. 49 at 2.
The CSRA "established a comprehensive system for reviewing personnel action taken
against federal employees." United States v. Fausto, 484 U.S. 439, 455 (1988). The Supreme
Court has found that the CSRA precludes extrastatutory review to those employees who are
granted administrative and judicial review under the CSRA. See Elgin v. Dep't of the Treasury,
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567 U.S. 1, 5 (2012). However, "[i]f [an] employee asserts no civil-service rights, invoking only
federal anti-discrimination law, the proper forum for judicial review. . . is a federal district court."
Perry v. MSPB, 137 S. Ct. 1975, 1979 (2017). However, "when an employee complains of a
personnel action serious enough to appeal to the MSPB and alleges that the action was based on
discrimination, she is said (by pertinent regulation) to have brought a 'mixed case.'" Id. at 1980
(quotation omitted) (emphasis in original. "[I]n mixed cases . . . in which the employee . . .
complains of serious adverse action prompted, in whole or in part, by the employing agency's
violation of federal antidiscrimination laws, the district court is the proper forum for judicial
review." Id. at 1988.
Plaintiff argues that she is not challenging any personnel actions and that this case invokes
only federal anti-discrimination law, thereby vesting this Court with jurisdiction. See Dkt. No. 49
at 1-2. However, even if the Government is correct that the CSRA interferes with traditional
notions of jurisdiction, this case would be a "mixed case." See Perry, 137 S. Ct. at 1980.
Therefore, jurisdiction may eventually lie with the Court for review. See Stewart v. U.S. I.N.S.,
762 F.2d 193, 198 (2d Cir. 1985) (holding "if the court eventually will have jurisdiction of the
substantive claim and an administrative tribunal has preliminary jurisdiction, the court has
incidental jurisdiction to grant temporary relief to preserve the status quo pending the repining of
the claim for judicial action on the merits"). Accordingly, the Court will consider the merits of
Plaintiff's motion for a preliminary injunction.
B.

Motion for a Preliminary Injunction
A preliminary injunction "is an extraordinary and drastic remedy, one that should not be

granted unless the movant, by a clear showing, carries the burden of persuasion." Moore v.
Consol. Edison Co., 409 F.3d 506, 510 (2d Cir. 2005) (citation omitted). "A decision to grant or
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deny a preliminary injunction is committed to the discretion of the district court." Polymer Tech.
Corp. v. Mimran, 37 F.3d 74, 78 (2d Cir. 1994) (citation omitted).
A party seeking a preliminary injunction must establish "'a threat of irreparable injury and
either (1) a probability of success on the merits or (2) sufficiently serious questions going to the
merits of the claims to make them a fair ground of litigation, and a balance of hardships tipping
decidedly in favor of the moving party.'" Allied Office Supplies, Inc. v. Lewandowski, 261 F.
Supp. 2d 107, 108 (D. Conn. 2003) (quoting Motorola Credit Corp. v. Uzan, 322 F.3d 130, 135
(2d Cir. 2003)).
The Supreme Court has observed that the decision of whether to award preliminary
injunctive relief is often based on "procedures that are less formal and evidence that is less
complete than in a trial on the merits." Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981).
Consonant with this view, the Second Circuit has held that a district court may consider hearsay
evidence when deciding whether to grant preliminary injunctive relief. See Mullins v. City of New
York, 626 F.3d 47, 52 (2d Cir. 2010). Therefore, the strict standards for affidavits under the
Federal Rules of Evidence and in support of summary judgment under Rule 56(c)(4) of the
Federal Rules of Civil Procedure requiring that an affidavit be made on personal knowledge are
not expressly applicable to affidavits in support of preliminary injunctions. See Mullins v. City of
New York, 634 F. Supp. 2d 373, 384 (S.D.N.Y. 2009) (citations omitted). Nevertheless, courts
have wide discretion to assess the affidavit's credibility and generally consider affidavits made on
information and belief to be insufficient for a preliminary injunction. See 11A Charles Alan
Wright et al., Federal Practice and Procedure § 2949 (2d ed. 1995); Mullins, 634 F. Supp. 2d at
373, 385, 390 n.115 (declining to fully credit the "defendants' hearsay affidavit" and noting that
while the court "may consider hearsay evidence in a preliminary injunction hearing . . . , a court
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may weigh evidence based on whether such evidence would be admissible under the Federal
Rules of Evidence").
Even if the plaintiff demonstrates irreparable harm and a likelihood of success on the
merits the remedy of preliminary injunctive relief may still be withheld if equity so requires. "An
award of an injunction is not something a plaintiff is entitled to as a matter of right, but rather it is
an equitable remedy issued by a trial court, within the broad bounds of its discretion, after it
weighs the potential benefits and harm to be incurred by the parties from the granting or denying
of such relief." Ticor Title Ins. Co. v. Cohen, 173 F.3d 63, 68 (2d Cir. 1999) (citation omitted).
1. Administrative Action
In Sampson v. Murray, 415 U.S. 61, 83-84 (1974), the Supreme Court explained that court
interference in unresolved administrative procedures has an "obviously disruptive effect" and that
"the Government has traditionally been granted the widest latitude in the dispatch of its own
internal affairs."
In addition to her current action in this court, Plaintiff also has matters pending before the
VA's OAWP and the MSPB. See Dkt. No. 41-1 at 8-9. At oral argument, Plaintiff indicated that
the appeal pending before the MSPB included a review of the proposed removal order at issue in
this motion. See Transcript of Oral Argument ("Tr.") at 11. As part of that appeal, it appears that
Plaintiff has sought a stay of the removal order from the MSPB on multiple occasions. See Dkt.
No. 47 at 3. Plaintiff states that these requests were denied because there is already a stay of the
proposed removal order in place from another agency addressing complaints by Plaintiff. See
Dkt. No. 41-1 at 10. Given that a stay is already in place, the Court is particularly disinclined to
interfere with an ongoing government personnel action.

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2. Irreparable Harm
"Irreparable harm is the single most important prerequisite for the issuance of a
preliminary injunction." Rodriguez ex rel. Rodriguez v. DeBuono, 175 F.3d 227, 233-34 (2d Cir.
1999) (internal quotations omitted). "[I]n Sampson, . . . the Supreme Court articulated a
particularly stringent standard for irreparable injury in government personnel cases." Stewart, 762
F.2d at 199. "The Sampson Court held that, except in a 'genuinely extraordinary situation,'
irreparable harm is not shown in employee discharge cases simply by a showing of financial
distress or difficulties in obtaining other employment 'however severely they may affect a
particular individual.'" Id. (quotation and other citations omitted). The Second Circuit has held
that this heightened requirement applies in Title VII actions as well. See id. One court
considering a motion for a preliminary injunction in an employment discharge case described
factors which have been deemed to constitute "extraordinary circumstances." Williams v. State
University of New York, 635 F. Supp. 1243, 1248 (E.D.N.Y. 1986). The court, in Williams,
explained:
Culling the factors from cases on point which have been deemed to
constitute "extraordinary circumstances," this Court concludes that a
discharged plaintiff must show that she (1) has very little chance of
securing further employment; (2) has no personal or family
resources at her disposal; (3) lacks private unemployment insurance;
(4) is unable to obtain a privately financed loan; (5) is ineligible for
any type of public support or relief[;] and (6) any other compelling
circumstances which weigh heavily in favor of granting interim
equitable relief.
Id.
"Where money damages are adequate compensation, a preliminary injunction will not
issue." Loveridge v. Pendleton Woolen Mills, Inc., 788 F.2d 914, 918 (2d Cir. 1986). "Nor will
damage to reputation and self esteem, or hardship imposed on a plaintiff's family . . . merit a
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preliminary injunction." Williams, 635 F. Supp. at 1247-48 (citing Stewart, 762 F.2d at 200).
"'[T]he injuries that generally attend a discharge from employment – loss of reputation, loss of
income and difficulty in finding other employment – do not constitute the irreparable harm
necessary to obtain a preliminary injunction.'" Oliver v. New York State Police, No. 1:15-CV-444,
2019 WL 2009182, *7 (N.D.N.Y. May 6, 2019) (citing Guitard v. U.S. Sec'y of Navy, 967 F.2d
737, 742 (2d Cir. 1992)).
Plaintiff argues that she would suffer irreparable harm under extraordinary circumstances.
See Dkt. No. 41-1 at 12. Specifically, Plaintiff claims that she would be unable to make enough
money to pay for costs associated with raising two young children, pay for her mortgage and two
car payments, or afford to heat her home in the winter. See id. at 12-13. While the Court
recognizes that these are hardships, the Second Circuit has held that financial distress associated
with losing employment does not constitute irreparable harm absent "extraordinary
circumstances." Holt v. Continental Group, 708 F.2d 87, 91 (2d Cir. 1983) (holding that
"irreparable harm is not established in employee discharge cases by financial distress or inability
to find other employment, unless truly extraordinary circumstances are shown"); Stewart, 762
F.2d at 199 (finding a plaintiff's damage to his reputation and self-esteem and that he would be
unable to adequately provide for his family insufficient to constitute irreparable harm); Oliver,
2019 WL 2009182, at *7-8 (finding that financial distress and stigma associated with loss of
employment, losses associated with defamation, and difficulty obtaining other employment did
not constitute irreparable harm); Bagley v. Yale University, No. 3:13-CV-1890, 2014 WL
7370021, *7 (D. Conn. Dec. 29, 2014) (finding loss of reputation, stress and anxiety associated
with relocation, and chilling effect on co-workers insufficient did not rise to the level of
irreparable harm). Further, the injuries which Plaintiff claims would result from denial of her
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motion are compensable by money damages should she be successful on her claims. Plaintiff has
failed to establish that she will suffer irreparable harm under the traditional standard, and has
certainly failed to establish "a genuinely extraordinary situation" as is required in cases brought by
federal employees. See Sampson, 415 U.S. at 91-92.
Further, "[t]he irreparable injury prerequisite for a preliminary injunction requires proof of
harm that is 'actual and imminent' and not remote or speculative.'" Pisarri v. Town Sports Int'l,
LLC, 758 Fed. Appx. 188, 190 (2d Cir. 2019). Here, Plaintiff seeks an injunction preventing the
VA from carrying out its proposed removal action in the event that the existing stay from the
OAWP is lifted. See Dkt. No. 41-1 at 11-12. At oral argument, Plaintiff argued that irreparable
harm is actual and imminent because the VA has commenced the process of terminating her
employment by filing the proposed removal order. Tr. at 12-13. However, when that order will
be executed, if at all, is unknown. Plaintiff's counsel indicated that the matter pending before the
MSPB includes a review of the proposed removal action. See id. at 11. The MSPB could decide
to vacate the proposed removal order or issue a stay of its execution, as Plaintiff has requested on
multiple occasions. See Dkt. No. 47 at 3. This uncertainty is exactly the type which makes
Plaintiff's claimed injury speculative. See Peck v. Montefiore Med. Ctr., 987 F. Supp. 2d 405,
410-11 (S.D.N.Y. 2013) (finding request to terminate employee was not actual or imminent when
there were review procedures in place through which the employee could challenge her
termination and such review was incomplete). Further, as previously discussed, the Court is
hesitant to intervene into unresolved administrative matters which address this exact issue. See
Sampson, 415 U.S. at 83-84.
Finally, "preliminary injunctions are generally granted under the theory that there is an
urgent need for speedy action to protect the plaintiffs' rights. Delay in seeking enforcement of
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those rights, however, tends to indicate at least a reduced need for such drastic, speedy action."
Citibank N.A. v. Citytrust, 756 F.2d 273, 276 (2d Cir. 1985). Here, there was an nine-month delay
between the issuance of the proposed removal action and the filing of Plaintiff's motion, thereby
cutting against Plaintiff's argument that emergency relief is necessary. 3 See Citibank, N.A., 756
F.2d at 276; see also Hornig v. Trustees of Columbia Univ., No. 17-CV-3602, 2018 WL 5800801,
*7 (S.D.N.Y. Nov. 5, 2018) (finding that the plaintiff's two-and-a-half-month delay in bringing a
motion for preliminary injunction in employment discrimination case undermined "a finding [o]f
irreparability because courts typically decline to grant preliminary injunctions in the face of
unexplained delays of more than two months") (quotation omitted). At oral argument, Plaintiff
was unable to provide the Court with any reason which would justify the delay and stated only
that it was the "result of failed negotiations." Tr. at 18. This unjustified delay weighs against the
necessity of injunctive relief.
In the alternative, Plaintiff argues that there will be a chilling effect which would dissuade
others from speaking out about wrongdoing at the VA should the Court deny her motion, thereby
constituting irreparable harm. See Dkt. No. 41-1 at 13-14. "A retaliatory discharge carries with it
the distinct risk that other employees may be deterred from protecting their rights . . . or providing
testimony for the plaintiff in her effort to protect her rights. [Such] risks may be found to
constitute irreparable injury." Holt, 708 F.2d at 91. However, there is not "irreparable injury
sufficient to warrant a preliminary injunction in every retaliation case." Id. "This theory, to be
worthy of consideration as a basis for a preliminary injunction, must be backed up by evidence
sufficient to allow the district court to make 'an explicit determination as to whether in the

The proposed removal action was issued on January 22, 2019 and the motion was filed
on September 30, 2019. See Dkt. No. 41-1 at 9, 16.
3

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particular circumstances therein, the risk of irreparable harm existed as the result of a potential
chilling effect.'" Bagley, 2014 WL 7370021, at *11 (citing Stewart, 762 F.2d at 200).
Here, Plaintiff's arguments are supported only by her affirmation that she has been told
that other individuals will not come forward with complaints of harassment or retaliation for fear
of reprisal. See Dkt. No. 41-1 at 13-14. Such unsupported claims are insufficient for the Court to
determine that any chilling effect is anything but speculative. See Moore, 409 F.3d at 512
(finding an alleged chilling effect insufficient where there were no allegations of witness
intimidation and little evidence supporting allegations of fear of retaliation); Victorio v. Sammy's
Fishbox Reality Co., LLC., No. 14-CV-8678, 2014 WL 7180220, * 5-6 (S.D.N.Y. Dec. 12, 2014)
(finding allegations that the defendants attempted to persuade employees not to assist with a law
suit insufficient to establish irreparable injury absent evidentiary support of such claims). Thus,
the Court finds that Plaintiff has failed to establish irreparable harm as a result of a potential
chilling effect.
Finally, Plaintiff seeks an injunction preventing certain supervisors from entering her
home. Plaintiff explains that one of the named individuals came to her house to conduct a
"telework inspection." See Dkt. No. 41-2 at ¶ 36. Plaintiff claims that an injunction preventing
the named individuals from going to her home would prevent "potential triggers of panic attacks."
See id. at ¶ 41. While such injuries can constitute irreparable harm, Plaintiff's conclusory
allegations of injury do not suffice. See Miller v. Miller, No. 3:18-CV-1067, 2018 WL 3574867,
*3 (D. Conn. July 25, 2018); Lore v. City of Syracuse, No. 00-CV-1833, 2001 WL 263051, *5
(N.D.N.Y. Mar. 9, 2001) (finding the plaintiff's claims of "fear, anxiety, humiliation, indignity and
shame" insufficient to establish irreparable harm).

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Based on the reasons described above, the Court finds that Plaintiff has failed to establish,
by a clear showing, irreparable harm absent injunctive relief. Accordingly, Plaintiff's motion is
denied.
IV. CONCLUSION
After careful review of the record, the parties' arguments, and the applicable law, the Court
hereby
ORDERS that Plaintiffs' motion to for a preliminary injunction (Dkt. No. 41) is
DENIED; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: December 18, 2019
Albany, New York

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