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WAGNER v. LONG ISLAND UNIV.

September 1, 1976

Jean K. Wagner, Plaintiff
v.
Long Island University et al., Defendants


Pratt, D.J.


The opinion of the court was delivered by: PRATT

PRATT, D.J.:

Plaintiff is an assistant professor in the department of Sociology and Anthropology at the C.W. Post Center of Long Island University (the college). On the day that this decision is being prepared, her present employment contract terminates, since after review by the faculty and administrative procedures, the college determined not to grant her tenure. Notice of that decision was given to plaintiff in the spring of 1975, and she declined to have her status reconsidered during the 1975/76 school year.

 Claiming that her denial of tenure resulted from unlawful sex discrimination, plaintiff brought this action under 42 U.S.C. § 2000e-5(f)(3) and 29 U.S.C. § 185(a) seeking to eliminate all unlawful sex discrimination with respect to her employment and to compel the college to reappoint her to the faculty with tenure. The action has been pending since December, 1975; although extensive discovery has already taken place, plaintiff has indicated that further pretrial proceedings will take until approximately January, 1977 at which time plaintiff will be prepared to try the case on the merits.

 Since plaintiff's present contract with Post terminates as of August 31, 1976, plaintiff has moved for a preliminary injunction directing the college to continue her in their employment as an assistant professor of anthropology.

 The court has twice heard arguments on various aspects of the parties' positions and in addition held an evidentiary hearing which ran for some three hours commencing at approximately 5:00 P.M. on August 30, 1976. That hearing, as ordered by the court after considering the other arguments of the parties, focused upon the questions of irreparable harm, balancing of hardships, and the relative equities of the parties' positions.

 The Court of Appeals for the Second Circuit has recently commented on the standards for a preliminary injunction as follows:

 
The purpose of a preliminary injunction is to maintain the status quo pending a final determination on the merits. It provides relief which is 'interlocutory, tentative, provisional, ad interim, impermanent, mutable, not fixed or final or conclusive, characterized by its for-the-time-beingness.' It should not be used as a device for creating a new contract between the parties or deciding questions of contract breach, properly determinable after trial. It is not an adjudication on the merits, and it should not grant relief properly awarded only in a final judgment.
 
Furthermore, it is well settled that a preliminary injunction is an extraordinary remedy that should not be granted except upon a clear showing that there is a likelihood of success and irreparable injury, or that there is an important and difficult issue to be determined justifying more deliberate investigation and that the ' balance of hardships tips decidedly toward the party requesting the temporary relief '. Diversified Mortgage Investors v. U.S. Life Title Insurance Company of New York, 544 F.2d 571, 576 (1976) (emphasis supplied) (citations omitted).

 As a result of the arguments of the parties and the extensive documentation furnished in connection with this motion, as well as the other papers on file with the clerk, I have concluded that the underlying question of sex discrimination raised by the plaintiff cannot be disposed of at this stage, but is a difficult, complex issue requiring detailed analysis and extensive testimony. Nor could it be said that the issue is unimportant, since it charges one of Long Island's major educational institutions with direct and flagrant violations of federal laws against discrimination in employment based on sex. Accordingly, the court finds that there is present here an important and difficult issue which must ultimately be determined and which certainly justifies more deliberate investigation than could be afforded at this preliminary stage of the lawsuit. The question on this motion, therefore, becomes one of the "balance of hardships". Applying to the facts of this case a balance of hardships standard is not an easy task. As will be seen from the discussion that follows, the verbal standards offered to us by the reported decisions do not easily fit the circumstances here.

 Plaintiff contends that she will be irreparably harmed if her employment by the college is permitted to terminate while this action is still pending. She argues that the college's discrimination against women will eventually be established and that the court must order her reinstatement. The hardship and injury which she claims include the following:

 1. She would be out of a job. Plaintiff has withdrawn any claim of economic hardship, but her psychiatrist has submitted an affidavit to the effect that her own psychological condition makes it essential that she continue teaching.

 2. She most likely would be unable to obtain another job in her field of teaching anthropology. She has contacted at least four other local colleges, none of whom have openings at the present time.

 3. She would suffer a distinct loss of professional standing. She claims that her professional reputation depends upon a continuity of employment, and that a disruption of that continuity at this time would not only affect her standing in the field, but would also disrupt her relationships with the faculty, her students, and with various publications, professional associations, and committees at the college.

 4. She would suffer a loss of her innovative teaching techniques and of new courses which she has prepared for teaching ...


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