Professor Zolberg, the political science department chair, needs Pollis to teach a course in human rights to graduate students next year. Zolberg has obtained Pollis's commitment to teach during the fall semester. He hopes to persuade her to do so during the spring semester. While Pollis's title during the coming academic year will be the lesser one or adjunct professor, the evidence does not sustain the dismal picture Pollis paints of that existence: arriving from home, teaching the course, and then having to quit the institution's premises at once; being deprived of all library and computer facilities; being isolated from all the students, with no opportunity to advise or mentor them.
Provost Walzer testified, and I accept, that although space is chronically short at the New School, office space can be found for adjunct professors, although they may haze to share that space; that there is no policy or practice at the New School which precludes adjunct professors from making full use of the library or the computer facilities, including word processors and printers; and that Pollis would be expected to continue advising and supervising graduate students who, under Pollis's tutelage, are well along in their master's and doctoral theses and dissertations. Tr. 126, 186-87. Pollis herself acknowledged that in the fall she would continue to mentor a doctoral candidate and "a couple at the master's level." Tr. 100.
The present record does not allow a precise description of the conditions of Pollis's employment in the fall as an adjunct professor. That is because the parties have had no discussions on the subject. There is not so much a failure of communication as its absence. Each party blames the other. Pollis says that the New School administration has entirely failed to take the initiative in negotiating a humane post-retirement package of the sort Walzer described in a policy statement she drafted and distributed to the deans and department heads in 1988. PX 13. Walzer says that she intended to introduce these subjects during her December conference with Pollis, but abandoned the thought when Pollis stated unequivocally that she would not retire and, figuratively at least, slammed the door to the Provost's office on her way out. There is some substance to both perceptions, although the issue is not one of central importance. Judging at least by Zolberg's conduct as described by Pollis (Zolberg did not testify), the chair of the political science department had either never heard of the 1988 retirement policy statement, or chose to disregard it. On the other hand, Walzer attempted to keep the door open. In her letter to Pollis dated January 14, 1993, PX 3, Walzer urged Pollis to consider "part-time teaching after you have retired," and concluded: "Please let me know if there is anything I can do to help." That offer fell on deaf ears. Pollis responded by filing a EEOC complaint and commencing this litigation. It is difficult to negotiate terms with one who makes it clear there will be no agreement.
Notwithstanding my inability on the present record to predict the precise terms and conditions of Pollis's employment as an adjunct professor, I find on the basis of the evidence and the reasonable inferences it supports that Pollis will not be entirely deprived of office space, barred from any use of the library and computer facilities of the New School, and isolated from all the graduate students under her direction. She may very well lose her present student research assistant, whose activities appear to focus on Pollis's contracted-for book. Her office space will be reduced; she will teach fewer courses, and directly advise, supervise or "mentor" fewer graduate students. Her title, as it appears in the New School catalogues, will be changed in a manner which Pollis regards as demeaning and which she strongly resents.
The evidence shows, in short, not that condition of near-total academic deprivation and isolation Pollis described in her affidavits and direct testimony, but reductions and limitations. The New School proposes to change, not terminate, Pollis's participation in its faculty.
It follows that, to a significant degree, Pollis has failed to prove her theory of irreparable harm. That is the context in which the proof must be viewed at this state of the litigation. In a post-hearing letter brief, counsel for Pollis views the controversy about Pollis's post-retirement package (or lack of same) as implicating the doctrine of mitigation of damages, and argues that the New School has not satisfied Ford Motor Co. v. EEOC, 458 U.S. 219, 73 L. Ed. 2d 721, 102 S. Ct. 3057 (1982), with its references to the seeking or offering of comparable or substantially equivalent employment. But mitigation of damages has nothing to do with the instant case in its present posture. Mitigation of damages arises in discrimination cases after the employee has established the employer's liability; the employer may then reduce the award by proving, if it can, that the employee failed to mitigate damages. One way that an employer can do that, Ford Motor Co. holds, is to show that during the pendency of the claim the employee was offered the same or comparable employment, albeit without retroactive seniority. But the case at bar is nowhere near that stage. The case has just begun; plaintiff seeks a preliminary injunction; and she bears the burden of proving that failure to issue the injunction will cause her irreparable harm before the disputes are resolved by trial. To the extent that the proof at the hearing fails to sustain plaintiff's claims of irreparable harm, it militates against a holding that she has sustained that burden.
It is useful to reiterate at this paint the period of time with which I am concerned in deciding whether or not to issue a preliminary injunction. As the Second Circuit held in Citytrust, Pollis like any applicant for a preliminary injunction must demonstrate that she "is likely to suffer irreparable harm before a decision on the merits can be rendered." 756 F.2d at 275. In the case at bar, it is reasonable to assume that this Court will reach a decision on the merits of Pollis's Title VII claims by the end of the 1993-1994 academic year. If the EEOC rejects Pollis's administrative claim, this Court will become vested with full jurisdiction sometime in mid-fall. I will enter an order of expedited discovery if such order is applied for. Given the Court's presently limited jurisdiction, I cannot make such an order now; nor could I order the trial of the action on the merits to be advanced and consolidated with the recent hearing of the preliminary injunction application under Rule 65(a)(2). However, that rule provides that the evidence received on the application "becomes part of the record on the trial and need not be repeated upon the trial," and so a significant part of the trial record in this non-jury proceeding has been accomplished. Subject only to the exigencies of the criminal calendar and other emergency civil applications, I will give this case priority so that it should be ripe for decision during the spring of 1994.
Thus the question that is posed is whether Pollis will suffer irreparable harm during that period of time if she does not receive a preliminary injunction retaining her as a tenured full-time faculty member. It is to that position that she will be restored if she sustains her claims of discrimination at trial.
It is pertinent to note that an important aspect of Pollis's academic activities should not be adversely affected during this relatively brief period. As noted, Fell is has achieved world stature in her field; and it is illogical to assume that the New School's adverse action, unwelcome as it is to Pollis, will transform her overnight into a pariah or nonentity on that larger academic stage. By way of illustration, Frangos testified that Pollis is currently engaged in planning for a symposium to be held in San Francisco in the fall for the Modern Greek Studies Association. Tr. 9, 16. Thus it cannot be said that Pollis's removal from the full-time New School faculty for one academic year will exile her entirely from her profession.
I recognize that Pollis described herself as obsessed with this litigation, and unable to concentrate effectively on anything else. To the extent that this mind set supports a claim of irreparable injury, Pollis has an interest in exaggerating the condition. Some corroboration is found in the testimony of other witnesses. Frangos testified that "her work has been disrupted. I hesitate to say -- she is here -- but she has been really obsessed by it." Tr. 9. Dr. Jane Sweeney, another friend and colleague of Pollis's (Pollis was her dissertation mentor), testified that Pollis presently "is distracted, she is upset, she is depressed." Tr. 105.
Professor Nicholas Pollis, plaintiffs brother, gave somewhat more reassuring testimony with respect to the plaintiff's present condition. Nicholas Pollis teaches in Wisconsin. While he has not had "much time to see [his sister] physically functioning behaviorally, . . . from what I have seen aid from our discussions, aside from her obsession with the situation, she has been a little bit off center, not quite as focused as she normally is on other issues and other aspects." There was a recent family reunion in Greece; and Nicholas Pollis described his sister's behavior at that reunion, in comparison to how she usually acts with her family, as "not quite as effusive, not quite as capable of enjoying the superior food that is available." Tr. 66-67.
While mental anguish is arguably a factor to be considered in the context of irreparable harm, see discussion infra, I discount it in the case at bar for two reasons. First, the claim is not supported by professional medical or psychological opinion. Second, assuming that Pollis is "obsessed" with this litigation (I used the word in its vernacular rather than clinical sense), it is illogical to assume that the obsession will dissipate entirely if a preliminary injunction issues. Pollis's concentration upon this lawsuit is entirely understandable. Its outcome will determine her future. There can be nothing else as important to her. As the case proceeds through discovery to trial, it will continue to hold that central place in Pollis's awareness, waking and perhaps sleeping; and that will be true, it seems fair to assume, whether or not a preliminary injunction issues. Therefore granting an injunction will not entirely alleviate the condition.
I think that if at the end of the 1993-1994 academic year Pollis prevails on the merits and is restored to her tenured full-time position on the New School faculty, the stress of the interim period will be largely repaid by a sense, of triumph vindication. There is, I believe, a saying that revenge tastes best when eaten cold.
Having described the circumstances of the case as revealed by the present record, I turn to the pertinent case law.
The New School contends that the non-economic effects of which Pollis complains cannot as a matter of law, whether considered alone or in combination, constitute irrepdrable harm sufficient to justify injunctive relief. The New School relies upon a Supreme Court decision, Sampson v. Murray, 415 U.S. 61, 39 L. Ed. 2d 166, 94 S. Ct. 937 (1974), and two Second Circuit cases: Stewart v. United States Immigration and Naturalization Service, 762 F.2d 193 (2d Cir. 1985), and Holt v. Continental Group, Inc., 708 F.2d 87 (2d Cir. 1983), cert. denied, 465 U.S. 1030, 79 L. Ed. 2d 695, 104 S. Ct. 1294 (1984).
In Sampson, a probationary federal employee notified of her discharge complained that civil service regulations had not been followed and obtained a preliminary injunction from the district court pending an administrative appeal. In addition to deprivation of income, plaintiff alleged as a basis for relief "the humiliation and damage to her reputation which may ensue." Id. at 91. The Supreme Court, reversing the District of Columbia Circuit, observed that probationary federal employees were entitled to only limited substantive and procedural protection, 415 at 80-81, and also held:
Assuming for the purpose of discussion that [plaintiff] has 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 the 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.