UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
August 6, 1982
STEPHANIE ROBINSON-PITTS, Plaintiff,
BOARD OF EDUCATION OF THE CITY OF NEW YORK, et al., Defendants
The opinion of the court was delivered by: GLASSER
MEMORANDUM AND ORDER
GLASSER, United States District Judge:
Plaintiff, Stephanie Robinson-Pitts, filed this action on May 25, 1982, challenging her termination as Director of the Reach Out Drug Counseling Program for New York City Community School District # 19.
The plaintiff was hired as Director of the Program on July 7, 1981, and was terminated on May 10, 1982. The complaint alleges that her termination was the result of race and sex discrimination in violation of 42 U.S.C. §§ 1981 and 1983. The plaintiff names as defendants the Board of Education of the City of New York and its President, the President and Superintendent of Community School District # 19, the United Federation of Teachers and its Director, and the State of New York Division of Substance Abuse Services and its Director.
The plaintiff has moved for a preliminary injunction, and the defendants have cross-moved to dismiss the complaint. This memorandum and order is concerned solely with the plaintiff's motion for preliminary relief. The defendants' motions will be determined at a later date. For the reasons that follow, the motion for a preliminary injunction is denied.
The plaintiff has moved, by way of order to show cause, for a preliminary injunction granting the following relief: (1) ordering the defendants to restore the plaintiff to her former position with full seniority, vacation pay and salary, and with appropriate seniority, vacation and salary increments; (2) requiring the defendants to withdraw their opposition (if any) to the plaintiff's claim for unemployment insurance benefits due her during her period of involuntary unemployment; and (3) enjoining the defendants from disseminating any information concerning the plaintiff "other than information based solely on the quality of her work product and performance as can be verified in her employment file."
The law in this Circuit is that the plaintiff is entitled to a preliminary injunction only upon showing (a) that she would otherwise suffer irreparable injury, and (b) either (1) a likelihood of sucess on the merits or (2) sufficiently serious questions going to the merits to make them fair ground for litigation and a balance of hardships tipping decidedly in her favor. Doe v. New York University, 666 F.2d 761, 773 (2d Cir. 1981). Accord, Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979); Caulfield v. Board of Education, 583 F.2d 605 (2d Cir.1978). Thus, under either standard, irreparable harm is a prerequisite to injunctive relief. See Triebwasser & Katz v. American Tel. & Tel. Co., 535 F.2d 1356 (2d Cir. 1976); WGBH Educational Foundation, Inc. v. Penthouse International, Ltd., 453 F. Supp. 1347 (S.D.N.Y. 1978), aff'd, 598 F.2d 610 (2d Cir. 1979). In order to establish irreparable harm, a plaintiff must demonstrate that even if it prevails in obtaining a permanent injunction, "its interim damages cannot be calculated with sufficient accuracy to make damages an adequate substitute." Ives Laboratories, Inc. v. Darby Drug Co., Inc., 601 F.2d 631, 644 (2d Cir. 1979).
After thoroughly reviewing the plaintiff's complaint, affidavits, and other supporting materials, this Court concludes that she has failed to demonstrate such irreparable harm.
In the course of these proceedings, the plaintiff has submitted three affidavits. The first affidavit, dated May 20, 1982, accompanied the plaintiff's order to show cause. This affidavit fails to allege any irreparable harm. The plaintiff's second affidavit, dated June 22, 1982, alleges irreparable harm solely in para. 18. In this paragraph, the plaintiff alleges that if she is not reinstated she will face unemployment, damage to her professional reputation, and reduced opportunities for future employment. In the plaintiff's third affidavit, dated July 5, 1982, the plaintiff offers no new allegations of irreparable harm, but merely suggests that the Court "see the court reporters' memo for statements on irreparable harm." para. 14.
Since para. 18 of the second affidavit contains the only specific allegations of irreparable injury, it is upon these allegations that the question must be determined.
Under established principles of equity, "mere loss of employment and attendant loss of reputation and flow of current income may not entitle a claimant to reinstatement by means of a preliminary injunction." Oshiver v. Court of Common Pleas, 469 F. Supp. 645, 653 (E.D. Pa. 1979). In Sampson v. Murray, 415 U.S. 61, 39 L. Ed. 2d 166, 94 S. Ct. 937, (1973), the Supreme Court observed:
"It seems clear that the temporary loss of income, ultimately to be recovered, does not usually constitute irreparable injury.
Assuming for the purpose of discussion that respondent had made a satisfactory showing of loss of income and had supported the claim that her reputation would be damaged as a result of the challenged agency action, we think this showing falls far short of the type of irreparable injury which is a necessary predicate to the issuance of a temporary injunction in this type of case." Id. at 91-92.
As these authorities indicate, the plaintiff in the instant case has failed to adequately demonstrate that she will suffer irreparable harm in the absence of the issuance of the injunction. As the court observed in Moore v. Kibbee, 381 F. Supp. 834, 837 (E.D.N.Y. 1974):
"If plaintiff ultimately prevails herein, there is no question but that she will not only be rehired, but also that she will be fully recompensed for whatever pay she may have lost in the interim, and awarded whatever other damages she may establish and be entitled to under law. Whatever injury she may sustain would therefore appear not to be 'irreparable' as that term is generally understood in this type of action."
See also Faro v. New York University, 502 F.2d 1229 (2d Cir. 1974). Regarding the claim of damages to reputation, since the plaintiff has already been discharged, any damage to her reputation that will not be remedied by reinstatement has already taken place.
The plaintiff having failed to satisfy the requirements for a preliminary injunction, the motion is denied.
Should the plaintiff's complaint survive the defendants' motion to dismiss, the case will be set down for an early trial date.