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United States District Court, Southern District of New York

September 10, 2003


The opinion of the court was delivered by: Gabriel Gorenstein, Magistrate Judge


Joseph Cooney is a former employee of Consolidated Edison of New York, Inc. ("Con Edison") who filed a complaint pro se against Con Edison alleging discrimination in the terms and conditions of his employment on the basis of disability and alleging that Con Edison retaliated against him for engaging in protected acts under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12112-12117. See Amended Complaint, filed June 5, 2003 ("Am. Compl.") (Docket #11).

The complaint was brought while Cooney was an employee of Con Edison but on sick leave. On August 2, 2003, Cooney sought an order to show cause seeking injunctive relief and a temporary restraining order under Fed.R.Civ.P. 65. See Order to Show Cause for Preliminary Injunction and Temporary Restraining Order, filed August 6, 2003 (Docket #17). He asked that the Court: a) enjoin Con Edison from terminating him during the pendency of this action, and b) order Con Edison to give him an appointment with its Occupational Health Department ("OHD"). For the reasons stated below, Cooney's motion should be denied. Page 2


Joseph Cooney has been employed by Con Edison since 1990, most recently as an "Outplant Mechanic A." See Am. Compl. ¶¶ 4-5. Cooney identifies his disability as CFIDS, an acronym for Chronic Fatigue Immune Deficiency Syndrome. Id. ¶ 2. From January 9, 2003 to August 11, 2003, Cooney was absent from work on non-occupational sick leave. During that time, Cooney continued to receive normal pay and benefits pursuant to the collective bargaining agreement between Con Edison and the Utility Workers' Union of America, AFL-CIO, Local No. 1-2, of which Cooney was a member. See 2000-2004 Collective Bargaining Contract (annexed to Affirmation of Rory Schnurr, undated, ("Schnurr Affirm."), Ex. A), at 40-41. In June, Cooney was notified that August 11, 2003 was the last day he was entitled to sick leave benefits under the contract. See Letter from Alfredia Sales-Fairnot, dated June 18, 2003 (reproduced in Plaintiff's Reply For Motion For A Preliminary Injunction And Temporary Restraining Order, filed August 21, 2003 ("Reply") (Docket # 22), Ex. 1). When Cooney's sick leave expired on August 12, 2003, Con Edison terminated Cooney's employment. Schnurr Affirm. ¶ 14.

Cooney submitted the instant request for an order to show cause on August 2, 2003, prior to his termination. His motion sought to require OHD to examine him so that it could give clearance for his return to work. Cooney alleges that OHD refused to give him an appointment prior to his termination even though he submitted documentation from seven of his own physicians stating his ability to return to work. See Affidavit of Joseph Cooney, dated August 2, 2003 ("Pl. Aff."). In response, Con Edison has submitted an affidavit from the acting Medical Director of OHD asserting that whether an employee returns to duty following absence due to Page 3 sickness is in the sole discretion of OHD, which is "guided[] but is not bound by" recommendations made by an employee's own physicians. Affidavit of Lynne M. Hildebrand, M.D., dated August 13, 2003 ("Hildebrand Aff.") ¶ 6. Because OHD honored the recommendations of Cooney's doctors in allowing Cooney to use his sick leave, Cooney regards OHD's decision not to honor those same doctors' recommendations that he return to work as an act of retaliation for bringing this lawsuit. See Reply ¶ 2.

Cooney was last evaluated by an OHD physician on July 17, 2003. Hildebrand Aff. ¶ 16. After evaluating him on that date, Dr. Darlene Mitera, the Chief Psychiatric Consultant for OHD, noted in her report that Cooney "demonstrates continued mood instability impairing his ability to return to duty. P[atient] states that he cannot see himself able to return to duty. P[atient] aware benefits terminate 8/12. Unlikely that p[atient] will recover in three weeks before benefits expire." Report of Dr. Mitera, dated July 17, 2003 (reproduced in Hildebrand Aff., Ex. B). On the basis of this statement, OHD determined that no further appointments were necessary prior to Cooney's termination. Hildebrand Aff. ¶¶ 16, 25. OHD did not believe that the medical notes submitted by Cooney provided any additional information that would indicate otherwise. Id. ¶ 25. Cooney denies telling Dr. Mitera that he would not be able to return to work and claims Dr. Mitera "harassed and ridiculed" him in retaliation for naming her in his complaint. Reply ¶ 15.

On a motion for a preliminary injunction, a court may hold an evidentiary hearing to adjudicate the factual issues raised by the parties. See Fed.R.Civ.P. 52(a). When the relevant facts are not in dispute or the disputed facts are amenable to resolution on a paper record, however, no hearing is required. See Charette v. Town of Oyster Bay, 159 F.3d 749, 755 (2d Cir. 1998) (citations omitted); accord Larouche v. Webster, 566 F. Supp. 415, 419 n. 5 (S.D.N.Y. Page 4 1983) (no hearing required where "the written evidence shows the lack of a right [to requested relief] so clearly that receiving further evidence would be manifestly pointless"). As discussed below, resolution of disputed issues of fact is not necessary for the determination of the instant motion. Accordingly, no evidentiary hearing is required.


Cooney's original motion papers sought to enjoin Con Edison from terminating him. Since the time of the filing of those papers, however, Cooney was terminated from his employment. In its opposition papers, Con Edison argues that Cooney's request is therefore moot. See Memorandum of Law in Opposition to Plaintiff's Motion for a Preliminary Injunction and Temporary Restraining Order, filed August 18, 2003 ("Opp. Mem.") (Docket #19), at 2. While the request as filed is arguably moot, the Court has an obligation to give Cooney's papers a liberal construction as befits a pro se litigant. See, e.g., Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Thus construed, it is plain that the relief Cooney sought was his continued employment at Con Edison — not merely the halting of the then-potential termination. Thus, we construe his motion as seeking reinstatement pending the outcome of this litigation.

The standard for obtaining a preliminary injunction is well established. The moving party must show irreparable injury in the absence of injunctive relief and "either (a) likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation plus a balance of hardships tipping decidedly in [the moving party's] favor." Wisdom Import Sales, LLC v. Labatt Brewing Co., 339 F.3d 101, 108 (2d Cir. 2003) (quoting TCPIP Holding Co. v. Haar Communications, Inc., 244 F.3d 88, 92 (2d Cir. 2001)). Where a prohibitory injunction is sought — that is, an injunction that will alter rather than maintain the Page 5 status quo — a heightened standard applies. See, e.g., Beal v. Stern, 184 F.3d 117, 122-23 (2d Cir. 1999). Under this standard, a moving party must make a "strong" showing of irreparable harm, Doe v. New York Univ., 666 F.2d 761, 773 (2d Cir. 1981), and a "clear" or "substantial" showing of likelihood of success on the merits, Tom Doherty Assocs., Inc. v. Saban Entm't, Inc., 60 F.3d 27, 34 (2d Cir. 1995).

Showing irreparable harm is "the single most important prerequisite for the issuance of a preliminary injunction." Reuters Ltd. v. United Press Int'l, Inc., 903 F.2d 904, 907 (2d Cir. 1990) (citation omitted). The Supreme Court addressed the issue of irreparable harm in the context of termination of employment in Sampson v. Murray, 415 U.S. 61, 89-92 (1974). In Sampson, the Court held that injuries such as loss of income, damage to reputation, and difficulty in finding other employment do not rise to the level of irreparable injury necessary to obtain a preliminary injunction. Id. The logic supporting the rule of Sampson is that the discharged employee may be awarded back pay, the value of any lost benefits or earnings, and reinstatement if the employee prevails on the merits of the claim. See Ahmad v. Long Island Univ., 18 F. Supp.2d 245, 249 (E.D.N.Y. 1998). Thus, a party seeking injunctive relief who alleges only loss of earnings and other related harm fails to establish irreparable injury because "a harm that can be remedied by payment of damages is not irreparable." Berman v. New York City Ballet, 616 F. Supp. 555, 557 (S.D.N.Y. 1985) (citations omitted). The Sampson rule has been consistently applied in this Circuit. E.g., Savage v. Gorski, 850 F.2d 64, 67 (2d Cir. 1988) ("Loss of employment does not in and of itself constitute irreparable injury."); Holt v. Continental Group, Inc., 708 F.2d 87, 90-91 (2d Cir. 1983) ("[I]rreparable harm is not established in employee discharge cases by financial distress or inability to find other Page 6 employment, unless truly extraordinary circumstances are shown."), cert. denied, 465 U.S. 1030 (1984); Shady v. Tyson, 5 F. Supp.2d 102, 109-10 (E.D.N.Y. 1998); Berman, 616 F. Supp. at 557.

This is not to say that preliminary relief is never available for a terminated employee. See Sampson, 415 U.S. at 92 n. 68 (reserving use of the court's injunctive power for the "genuinely extraordinary situation"); Holt, 708 F.2d at 90-91 (irreparable harm may be available in "truly extraordinary circumstances"). This standard, however, is difficult to meet. The court in Shady articulated the standard as follows:

With respect to the plaintiff's employment opportunities and professional reputation . . . [i]rreparable injury along these lines can only be established by a clear demonstration that the plaintiff (1) has little chance of securing future employment; (2) has no personal or family resources; (3) has no private unemployment insurance; (4) is unable to finance a loan privately; (5) is ineligible for public assistance; and (6) there are other compelling circumstances weighing heavily in favor of interim relief.
Shady, 5 F. Supp.2d at 109; cf. Aguilar v. Baine Serv. Sys., Inc., 538 F. Supp. 581, 584 (S.D.N.Y. 1982) (holding that irreparable injury had been shown where plaintiffs faced eviction, their utilities' being turned off, and the inability to provide for their children).

Cooney's submissions provide no evidence of any irreparable harm. The sole allegations on this score are his statements that he faces being "unemployed with loss of medical benefits and loss of wages," Pl. Aff. at 2, and that a termination will result in "defamation of plaintiff's professional and moral character," Am. Compl. ¶ 1. Con Edison argued in its opposition papers that Cooney's injuries are not irreparable inasmuch as reinstatement and back pay are available remedies. See Opp. Mem. at 5. Nonetheless, Cooney in his reply provided no additional evidence to support his contention that he faced irreparable harm. Thus, Cooney has not Page 7 provided evidence sufficient to support a finding of irreparable injury. See Sampson, 415 U.S. at 92 n. 68.

Because Cooney has not made a showing of irreparable injury, he is not entitled to obtain an injunction mandating that Con Edison take action to return him to his employment — either by reinstating him or by requiring that he be examined by OHD pending the outcome of this litigation.


For the foregoing reasons, Cooney's motion for a preliminary injunction should be denied.


Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report to file any objections. See also Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Honorable Kimba M. Wood, 500 Pearl Street, New York, New York 10007, and to the undersigned at 40 Centre Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Wood. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Am, 474 U.S. 140 (1985).

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