Ms. Meadows similarly states in her affidavit that "unless an injunction is issued the harassment will not abate and I will continue to be punished for exercising my First Amendment rights to point out the inequities in the education of male and female students." Id., Exh. 14, P 9.
Although Ms. Meadows has tenure and therefore cannot be non-renewed, she alleges that Defendants have made "it impossible to remain employed," id. at 2, by, inter alia, pressuring her to take on the position of women's head basketball coach, a position that she left a few years ago upon her doctor's advisement due to a medical condition. Id., Exh. "5".
Ms. Meadows further alleges that Defendants have retaliated against her by taking away her deanship position, denying her access to an athletic building for which she had previously been issued keys, and attempting to "drive a wedge between her and the male coaches." Id. at 3.
Plaintiffs brought the underlying action pursuant to Title IX, 20 U.S.C. §§ 1681 et seq.; 42 U.S.C. §§ 1983, 1985 (3) and 1986; the First Amendment to the United States Constitution, N.Y. Civ. Serv. Law § 75-b, and N.Y. Exec. Law § 290 et seq. Apparently, Plaintiffs seek injunctive relief pursuant only to 42 U.S.C. § 1983, based on their allegations of deprivation of their First Amendment rights.
In resolving this motion, the court notes first that if Plaintiffs' allegations are bona fide, they indicate an intolerable atmosphere for an educational institution. The court therefore hopes that the merits of this case will be resolved as expeditiously as possible. Be that as it may, the court is constrained to deny Plaintiffs' motion, as Plaintiffs have failed to show irreparable harm under the facts when analyzed under the relevant case law in this circuit.
It is well established in the Second Circuit that a party seeking a preliminary injunction must establish (1) irreparable injury and (2) a likelihood of success on the merits or a sufficiently serious question going to the merits and a balance of hardships tipping decidedly in the moving party's favor. See, e.g., American Postal Workers Union, AFL-CIO v. United States Postal Service, 766 F.2d 715, 721 (2d Cir. 1985), cert. denied, 475 U.S. 1046, 89 L. Ed. 2d 572, 106 S. Ct. 1262 (citing Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979)). Thus, a showing of irreparable harm is a threshold requirement Plaintiffs must establish in order to obtain a preliminary injunction.
1. Irreparable Harm
It is well established that, absent extraordinary circumstances, loss of income and/or other purely financial concerns do not constitute irreparable harm. E.g., Holt v. Continental Group, Inc., 708 F.2d 87, 90-91 (2d Cir. 1983) (citations omitted). Thus, Plaintiffs must assert more than this to satisfy the irreparable harm standard.
Plaintiffs contend that an injunction is warranted here in that "upon information and belief, the threatened acts of retaliation will have a chilling effect on the exercise of First Amendment rights by Plaintiffs and other employees of [SUNY Oswego]." Id. at P 10. Their basis for irreparable harm therefore appears to be that Defendants' alleged retaliatory actions against Plaintiffs for having made discrimination claims against Defendants have produced, and will continue to produce, a "chilling effect" on their First Amendment rights.
In support of this contention, Plaintiffs allege that "the defendants have discriminated against and harassed plaintiffs in order to silence them," Plaintiffs' Suppl. Memo. at 5, and that "such actions have resulted in a 'chill' of the plaintiff's [sic] First Amendment rights which is unconstitutional whether or not it has succeeded in silencing the plaintiffs." Id. In their original papers, Plaintiffs appeared to assert the First Amendment rights of other faculty members in addition to their own as a basis for irreparable harm; upon request by the court for clarification of this, however, Plaintiffs stated that they
do not allege that they have standing to assert the First Amendment rights of other faculty members as part of their proof of entitlement to a preliminary injunction. Claims by other employees of the defendant university, however, that they have been influenced by the "chill" emanating from the defendant's retaliatory discrimination against the plaintiffs are directly relevant to the plaintiffs' "claim of specific present objective harm . . . Evidence of chill would be relevant to the plaintiff's claim that the defendant's activities did in fact result in an unconstitutional restraint on protected speech and conduct."
Plaintiffs' Suppl. Memo., Doc. 23 at 5-6 (citing Trotman v. Board of Trustees of Lincoln University, 635 F.2d 216, 228 (3d Cir. 1980), cert. denied, 451 U.S. 986
, 68 L. Ed. 2d 844, 101 S. Ct. 2320 (1981)).
The Supreme Court has held that "the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 2690, 49 L. Ed. 2d 547 (1976) (citation omitted). In Elrod, the plaintiffs, employees of the Cook County, Illinois Sheriff's Office, alleged that they were fired or threatened with dismissal for refusing to change their political affiliations, and that this violated their constitutional rights secured by the First and Fourteenth Amendments. Id. at 351, 96 S. Ct. at 2678. The Supreme Court affirmed the Seventh Circuit's decision that injunctive relief was appropriate, in that First Amendment interests were either threatened or being impaired at the time relief was sought. Id. at 373, 96 S. Ct. at 2690. In so doing, the Court affirmed the Seventh Circuit's finding that the plaintiffs had shown sufficient irreparable injury to fulfill the threshold requirement of a preliminary injunction.
Contrasted with Elrod is a case in which the Second Circuit refused to grant a preliminary injunction. Savage v. Gorski, 850 F.2d 64 (2d Cir. 1988). In Savage, the plaintiffs, employees of Erie County, New York, brought suit against Gorski, the newly-elected County Executive, alleging that they were discharged from employment because of their political affiliations in violation of the First Amendment. However, the Savage plaintiffs did not allege, nor did the court find, that they were being coerced into another political party; they claimed only that they were associated with an administration with whose philosophy and beliefs the County Executive disagreed. Id. at 67.
The district court granted the Savage plaintiffs' motion for preliminary injunction, finding, inter alia, that the employees' political affiliation "was a 'substantial' or 'motivating' factor for their discharge." Id. The Second Circuit, in reversing the district court, stated that
the precise question thus becomes whether appellees' discharge pending the outcome of their case before the district court would have a chilling effect on appellees' First Amendment rights sufficient to constitute irreparable harm. Since the Source of the "chill" is the permanent loss of appellees' jobs, retaining those positions pending resolution of the case will do nothing to abate that effect.