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AGUILAR v. BAINE SERV. SYS.

March 22, 1982

CARLOS AGUILAR; EUGENIA BALCARCEL; DALTON CASTELLANO; RALPH DEGRACIA; APOLONIO PALENCIA; BLANCA RIVERA; and ENRIQUE VALDERAMA, Plaintiffs,
v.
BAINE SERVICE SYSTEMS, INC.; PAUL BAINE, individually and as President, Defendants



The opinion of the court was delivered by: DUFFY

MEMORANDUM & ORDER

Plaintiffs Carlos Aguilar, Eugenia Balcarcel, Dalton Castellano, Ralph Degracia, Apolonio Palencia, Blanca Rivera and Enrique Valderama, Hispanic employees of defendant Baine Service Systems, Inc. ("Baine"), seek a preliminary injunction ordering the defendants to retain the plaintiffs in their employ. Defendant Baine and defendant Paul Baine, sued individually and as President of Baine, cross move to dismiss plaintiffs' complaint.

 The complaint alleges that the plaintiffs have been employed by Baine since December, 1979. The plaintiffs charge that the defendants engaged in discriminatory practices based on the plaintiffs' Hispanic origin consisting of persistent denial of days and holidays off and harassment. These practices culminated in the filing of complaints with the New York State Division of Human Rights by all plaintiffs between November 30, 1981 and December 3, 1981. On January 8, 1982 all the plaintiffs, except Ralph Degracia, received a letter from Paul Baine suspending their employment due to "willful, malacious [sic] and untrue accusations concerning your employer." See letters attached to plaintiffs' Notice of Motion for a Preliminary Injunction. Mr. Baine sent subsequent letters to the suspended plaintiffs on January 11, 1982 offering re-employment under the same terms and conditions at a nearby facility. It appears that this letter might have been sent with ulterior motives as all of the plaintiffs unsuccessfully attempted to renew their employment and were denied unemployment benefits on account of the outstanding job offer.

 The instant action was filed on February 17, 1982. *fn1" Plaintiffs were subsequently reinstated pending resolution of this motion.

 I.

 The threshold inquiry in this case is whether plaintiffs' failure to obtain a "right to sue" letter from the Equal Employment Opportunity Commission ("EEOC") precludes any action for injunctive relief. Plaintiffs' complaint avers discriminatory behavior in violation of Title VII, which requires that plaintiffs obtain a right to sue letter, issued by the EEOC to allow a civil action to proceed, prior to commencing litigation. 42 U.S.C. § 2000e-5. Plaintiffs concede that no such letter was obtained.

 Plaintiffs filed their complaints with the New York State Division of Human Rights and it appears from the complaints themselves that they were then referred to the EEOC. No right to sue letter has been forthcoming.

 The Second Circuit recently decided in a case on point that "the court is entitled to use its inherent equity power to award temporary injunctive relief, in appropriate circumstances, in order to maintain the status quo prior to the EEOC's issuance of a right to sue letter." Sheehan v. Purolator Courier Corporation and Purolator, Inc., 676 F.2d 877, 881 (2d Cir. 22, 1982). The congressional goal underlying the enactment of Title VII and its 1972 Amendments was to strengthen the remedies available to a discriminated employee to eradicate discrimination from the workplace. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). It would be inconsistent with this goal to construe the technical requirements of Title VII rigidly to foreclose the possibility of immediate relief for an aggrieved plaintiff. The Sheehan decision recognizes the importance of observing the policy goals of Title VII and thus places this Circuit in accord with the Fifth, Eighth and Ninth Circuits' holdings that a right to sue letter is not a jurisdictional prerequisite to preliminary relief. McNail v. Amalgamated Meat Cutters and Butcher Workmen, 549 F.2d 538 (8th Cir. 1977); Berg v. Richmond Unified School District, 528 F.2d 1208 (9th Cir. 1975); Drew v. Liberty Mutual Insurance Co., 480 F.2d 69 (5th Cir. 1973), cert. denied, 417 U.S. 935, 41 L. Ed. 2d 239, 94 S. Ct. 2650 (1974). Resolution of this preliminary issue allows me to address the merits of plaintiffs' preliminary injunction.

 II.

 Issuance of a preliminary injunction in the Second Circuit is governed by the standard enunciated in Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70 (2d Cir. 1979). Plaintiffs must show:

 
(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.

 596 F.2d at 72. The material facts in this case are not in dispute. Defendants concede that the plaintiffs were fired; that letters of suspension were mailed to all the plaintiffs except Mr. Degracia; that written offers of re-employment were made and that the plaintiffs were reinstated pending this court's decision. The affidavits submitted by the defendants dispute the plaintiffs' allegations of discriminatory practices, however, these allegations are not germane to resolution of a preliminary injunction motion based on a Title VII retaliatory claim. This motion, therefore, does not raise issues of facts requiring an evidentiary hearing. See Forts v. Ward, 566 F.2d 849, 852 (2d Cir. 1977); Securities and Exchange Commission v. Frank, 388 F.2d 486, 492 (2d Cir. 1968).

 1. Irreparable Harm

 If a preliminary injunction is not issued, plaintiffs will lose their jobs and sole means of financial support. See affidavits attached to Plaintiffs' Motion for Preliminary Injunction. The opportunity for unemployment insurance only exists if the defendants do not renew their allegedly empty promises of reemployment. The general rule is that an injunction should not issue when the remedy at law is adequate, Jackson Dairy, supra, 596 F.2d at 72. However, the harm generated by loss of employment extends beyond financial boundaries. The plaintiffs face eviction, cut-off of their utilities and the inability to provide for their children. "[In] many cases the effect on the complainant of several months without work... will constitute harm ...


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