Appeal from an order of the United States District Court for the Southern District of New York, Knapp, Judge, granting, in part, appellee's motion for a preliminary injunction and directing the Immigration and Naturalization Service to pay appellee Stewart his base salary pending the outcome of criminal proceedings against him. Reversed.
Mansfield and Pierce, Circuit Judges and Bartels, Senior District Judge.*fn*
The United States Immigration and Naturalization Service ("INS") appeals from an order of the United States District Court for the Southern District of New York, Whitman Knapp, Judge, entered July 31, 1984, granting, in part, the motion of Leroy Stewart, an INS employee, for a preliminary injunction and directing it to pay Stewart his base salary pending the outcome of criminal proceedings against him.
INS argues that the district court lacked jurisdiction over appellee's claim of retaliatory discrimination and therefore was precluded form granting preliminary injunctive relief to appellee. In addition, INS contends that the district court erred in finding that Stewart had made an adequate showing that he would be irreparably harmed if a preliminary injunction were denied.
Stewart maintains that, pursuant to Holt v. Continental Group, Inc., 708 F.2d 87 (2d Cir. 1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1294, 79 L. Ed. 2d 695 (1984) and Sheehan v. Purolator Courier Corp., 676 F.2d 877 (2d Cir. 1981), his claim relating to his suspension without pay was properly before the district court. He also contends that the district court correctly found the existence of irreparable harm sufficient to justify the granting of a preliminary injunction in a government employee discharge case.
We hold that the district court lacked jurisdiction over Stewart's claim relating to his suspension without pay. Moreover, even if the district court did have jurisdiction, by failing to apply the Supreme Court's holding in Sampson v. Murray, 415 U.S. 61, 39 L. Ed. 2d 166, 94 S. Ct. 937 (1974), the court incorrectly found that he had suffered irreparable harm.
We therefore reverse the decision of the district court.
In May, 1973, Stewart began working for the INS and in August, 1976, he assumed a position as an inspector. On November 25, 1980, Stewart and two co-workers filed an administrative complaint against the INS with the Equal employment Opportunity Commission ("EEOC") charging the INS with discriminating against them on the basis of color and national origin. They claimed that they were subjected to treatment and employment conditions and requirements that differed form those of their Caucasian co-workers, and that they were given performance ratings lower than the ratings given to their Caucasian co-workers, despite allegedly comparable performance and productivity. They also alleged that they were harassed by their superiors at the INS.
On October 5, 1983, there having been no action on his EEOC complaint alleging discrimination, Stewart and his co-workers commenced an action against the INS in the Southern District of New York. The complaint alleged discrimination on the basis of race and national origin in violation of title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. The complaint, generally tracking the charges made at EEOC, was limited to claims that the plaintiffs, unlike their Caucasian co-workers, had been assigned to undesirable work shifts, workplaces, and working hours, had been denied upgrading and promotion opportunities, had consistently and arbitrarily been given lower performance ratings and had been subjected to continuous harassment by their superiors. The sought an award of back pay, an upgrading of their employment status, and costs and attorneys' fees. Stewart and his co-plaintiffs alleged that they had satisfied all conditions precedent to jurisdiction under section 706 of title VII, 42 U.S.C. § 2000e-5(f) (3).
In the meantime, on August 20, 1983, Stewart was arrested for conduct involving the use of his gun while off duty.*fn1 According to Stewart, on the evening of August 20, 1983, he left work without removing either his uniform or his gun and stopped to purchase some items in a store. Stewart was required to wear a uniform while performing inspections and was authorized, but not required, by the INS to carry a gun during the course of his inspections. Stewart claims that, upon leaving the store, he saw several individuals smoking marijuana and taking cocaine; that he "approached the group and informed them that they were in violation of the law and that they could have been arrested for taking drugs in an open street"; that he was then beaten by the individuals, who took his wallet; that upon being approached by one of the group who was holding a knife, he took out his revolver, pursued the group which had started to escape, and, when one individual stopped and turned with what appeared to be a gun in his hand, shot the individual in the leg; and that the group then fought with Stewart and took his gun. The police arrived, the individuals pressed charges against Stewart, and Stewart was arrested.
On February 6, 1984, a grand jury directed the filing of an information charging Stewart, with regard to the incident which occurred on August 20, 1983, with reckless endangerment in the second degree and assault in the third degree, charges which could result in a term of imprisonment. On February 29, 1984, the INS placed Stewart on administrative leave with full pay. However, shortly thereafter, on March 7, 1984, the day after the information was filed, the INS notified Stewart that it proposed to suspend him from duty indefinitely without pay, pending disposition of he criminal charges against him. The INS informed Stewart of his right to respond both orally and in writing to the proposal. After considering Stewart's responses, on May 26, 1984, the INS suspended Stewart indefinitely from duty and pay, pending disposition of the criminal charges against him.
On June 14, 1984, Stewart filed a petition with the Merit Systems Protection Board ("MSPB"), appealing the suspension without pay. A ...