Opinion
No. 96-CV-374 (RML), 02-CV-0256 (FB)(RML)
July 24, 2002
RALPH F. BOYD, JR., Assistant Attorney General, United States Department of Justice, Civil Rights Division, Washington, D.C., John M. Gadzichowski, Esq., Charles E. Leggott, Esq., Jodi B. Danis, Esq., for Plaintiff United States and the Federal Defendants.
MICHAEL D. HESS, Corporation Counsel of the City of New York, New York, N.Y., Norma A. Cote, Esq., for the Municipal Defendants.
CENTER FOR INDIVIDUAL RIGHTS, Washington, D.C., Michael E. Rosman, Esq., Co-Counsel for Intervenors and Plaintiffs.
McCARTER HIGGINS, Shrewsbury, N.J., George W. C. McCarter, Esq., Co-Counsel for Intervenors and Plaintiffs.
MEMORANDUM AND ORDER REPORT AND RECOMMENDATION
By Notice of Motion dated February 7, 2002, Intervenors in Case No. 96-0374 (the "1996 Case") and plaintiffs in Case No. 02-0256 (the "2002 Case") move, pursuant to Fed.R.Civ.P. 65, for the issuance of a preliminary injunction. For the reasons stated below, the motion is denied in the 1996 Case, and I respectfully recommend that the motion be denied in the 2002 Case.
By Stipulation dated June 2, 1999, the parties consented to have the 1996 Case referred to a Magistrate Judge for all purposes. See 28 U.S.C. § 636(c). By order dated April 22, 2002, the Honorable Frederic Block, United States District Judge, referred the motion in the 2002 Case to me for a Report and Recommendation.
PROCEDURAL HISTORY
In the 1996 Case, the United States brought claims against the New York City Board of Education (the "Board of Education"), the City of New York, Commissioner William J. Diamond, and the New York City Department of Citywide Administrative Services (collectively, the "Municipal Defendants") based on alleged violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000, et seq. Specifically, the suit challenged the Municipal Defendants' written examinations and recruitment practices for Custodian and Custodian Engineer positions in the New York City school system. The United States pursued two claims in this litigation: (1) a disparate impact claim on behalf of blacks and Hispanics, which challenged defendants' administration and use of written, competitive civil service examinations Nos. 5040 (given in 1985), 8206/8209 (given in 1989), and 1074 (given in 1993) for the positions of Custodian and Custodian Engineer (the "testing claim"); and (2) a disparate impact claim on behalf of blacks, Hispanics, women, and Asians, which challenged defendants' recruitment practices for the positions of Custodian and Custodian Engineer (the "recruitment claim").
The United States originally named as defendants the New York City Department of Personnel and the Personnel Director, in her official capacity. On February 1, 1999, the Department of Citywide Administrative Services and its Commissioner, in his official capacity, were substituted for those defendants.
At the time the 1996 Case was commenced, there were two separate job titles, known as "Custodian" and "Custodian Engineer." The job titles have since changed. The previous title of Custodian is now "Custodian Engineer, Level One," and the previous title of Custodian Engineer is now "Custodian Engineer, Level Two." For consistency, the court will continue to use the old job titles.
In February 1999, the United States and the Municipal Defendants reached a settlement of the 1996 Case (the "Agreement"), the details of which are described in this court's opinion, reported at 85 F. Supp.2d 130 (E.D.N.Y. 2000), familiarity with which is assumed. Among the central provisions of the Agreement was a requirement that the Municipal Defendants provide permanent civil service status to 43 identified blacks, Hispanics, Asians, and women who were already serving provisionally as Custodians and Custodian Engineers. In addition to converting 43 temporary or "provisional" employees to permanent employees, the Municipal Defendants were required to provide retroactive seniority, including retroactive pension relief, to 54 identified black, Hispanic, Asian, and female incumbent Custodians and Custodian Engineers (including the 43 provisional employees). The Agreement stipulated that these individuals, referred to as "Offerees," would receive retroactive seniority dates ranging from January 23, 1989 through June 28, 1996. (Settlement Agreement ¶¶ 12-19 and Appendix A.) The Agreement did not require the Board of Education to provide any back pay to the Offerees.
In their submissions in opposition to the motions, the Municipal Defendants refer to the Offerees, who have now received benefits under the Agreement, as "Beneficiaries." For the sake of simplicity and consistency, the court will continue to use the term "Offerees."
The retroactive seniority dates were determined based on a formula set forth in the Agreement.
Pursuant to 42 U.S.C. § 2000e-2(n), the parties provided notice of the Agreement to those persons whose interests might be affected. Although the union for Custodians and Custodian Engineers did not object to the Agreement, the court received approximately 321 individual objections, mostly from incumbents.
On May 4, 1999, incumbents John Brennan, James Ahearn, and Kurt Brunkhorst (the "Intervenors") moved to intervene in the 1996 Case, seeking to challenge the retroactive seniority provisions of the Agreement. The court conducted a fairness hearing on the terms of the Agreement on May 27, 1999, and counsel for the Intervenors, all three of whom also filed timely objections to the Agreement, appeared at the hearing and argued on their behalf.
On February 9, 2000, this court approved all of the provisions of the Agreement and denied the motion to intervene. See United States v. New York City Bd. of Educ., 85 F. Supp.2d 130 (E.D.N.Y. 2000). Thereafter, in compliance with their obligations under the terms of the Agreement, and specifically the timetable set forth in paragraphs 39-41 thereof, the Municipal Defendants provided permanent status and retroactive seniority relief to those Offerees who had timely filed releases in March 2000. Forty-three Offerees, who were then working as provisional Custodians and Custodian Engineers, received permanent appointments and retroactive seniority. In addition, sixteen Offerees, who were formerly provisional but had already obtained permanent appointments as Custodians or Custodian Engineers, received retroactive seniority.
This court expanded the number of Offerees at the May 1999 fairness hearing. It is the court's understanding that there are currently 59 beneficiaries of the Agreement, eleven of whom were already permanent employees and therefore received only retroactive seniority.
Absent retroactive seniority, these Offerees would have started to accrue seniority on the date they received permanent appointments. (Lonergan Aff. ¶ 12.)
At the present time, the New York City Board of Education employs approximately 386 permanent Custodians, 411 permanent Custodian Engineers, and 2 provisional Custodian Engineers. (Lonergan Aff. ¶ 3.)
On August 3, 2001, the Second Circuit issued a decision holding that this court erred in denying the motion to intervene. Brennan v. New York City Bd. of Educ., 260 F.3d 123, 133 (2d Cir. 2001). The court ruled that "the merits can . . . be resolved only after [Brennan, Brunkhorst, and Ahearn] have an opportunity for discovery and the presentation of evidence as a party to this action," and it identified two specific interests that the Intervenors have under Fed.R.Civ.P. 24(a)(2): (1) an interest "in their [then] positions as provisional Custodian Engineers," and (2) an interest "in their seniority fights as Custodians and Custodian Engineers." Id. at 130, 133. It vacated this court's order denying the motion to intervene and approving the Agreement and remanded for further proceedings. Id. No discovery has yet taken place on the Intervenors' claims.
In January 2002, the three Intervenors in the 1996 Case and five other white, male incumbents (including Ernie Tricomi, Scott Spring, and Dennis Mortenson, who also seek to intervene in the 1996 Case) filed the 2002 Case, a collateral action in which they allege that the permanent status and retroactive seniority provisions of the Agreement violate their rights under the Constitution and Title VII. They seek declaratory and injunctive relief against both the Federal and Municipal Defendants, as well as monetary damages against the Municipal Defendants on behalf of two plaintiffs who allege that they were denied school transfers in favor of Offerees. Mssrs. Aheam, Brennan, Brunkhorst, Mitchell, and Schauer are permanent Custodian Engineers. Mssrs. Spring, Tricomi, and Mortensen are permanent Custodians. (Lonergan Aff. ¶¶ 33-36.)
This Memorandum and Order will not address the other pending motions in these cases.
On June 13, 2002, Brunkhorst filed a Notice of Voluntary Dismissal in the 2002 Case.
Intervenors Ahearn, Brennan, and Brunkhorst were provisional Custodian Engineers at the time the Agreement was approved. They have since received permanent Custodian Engineer positions.
DISCUSSION
The Intervenors state that they seek only "forward looking relief" and do not seek "to displace any current offeree/beneficiary from his or her current position, or to place any beneficiary in a position worse than if (s)he had never been offered (or had never accepted) the benefits of the Agreement." (Letter to the court from Michael E. Rosman, Esq., dated April 19, 2002.) Thus, the preliminary injunction motions apparently do not seek to rescind any Offeree's permanent status or school placement; they seek only to rescind the retroactive grants of seniority.
The movants have not been entirely clear on the preliminary injunctive relief they are seeking, but even if their motions were to be interpreted as seeking to enjoin the grant of permanent status to the Offerees, they would fail for the reasons stated infra.
The United States opposes the preliminary injunction motions as they pertain to twenty-seven of the Offerees, whose scores on one or more of the challenged written examinations fell below the effective cut-off scores used to hire for the Custodian and Custodian Engineer positions. Notwithstanding the fact that the United States negotiated relief for all the Offerees as the plaintiff in the 1996 Case, it does not oppose the current motions as they pertain to the remaining Offerees. The Municipal Defendants, for their part, oppose the motions in full. The motions fail in any event.
When the Municipal Defendants implemented the Agreement's relief in 2000, the majority of the 27 test-taker Offerees had already been working in a provisional civil service status. (United States' Mem. at 20.)
Preliminary Injunction Standard
It is well-established that, generally speaking, a party seeking entry of a preliminary injunction has the burden of demonstrating (1) irreparable harm, and (2) either (a) likelihood of success on the merits, or (b) sufficiently serious questions going to the merits of the case to make them a fair ground for litigation and a balance of hardships tipping decidedly in its favor. Zervos v. Verizon New York, Inc., 252 F.3d 163, 172 (2d Cir. 2001); Forest City Daly Housing, Inc. v. Town of N. Hempstead, 175 F.3d 144, 149 (2d Cir. 1999). A preliminary injunction is considered an "extraordinary" remedy that should not be granted as a routine matter. JSG Trading Corp. v. Tray-Wrap. Inc., 917 F.2d 75, 80 (2d Cir. 1990); see also Hanson Trust PLC v. ML SCM Acquisition Inc., 781 F.2d 264, 273 (2d Cir. 1986) (preliminary injunction is "one of the most drastic tools in the arsenal of judicial remedies"); Medical Soc'y of the State of New York v. Toia, 560 F.2d 535, 538 (2d Cir. 1977) (preliminary injunction is "an extraordinary and drastic remedy which should not be routinely granted"); Wandyful Stadium, Inc. v. Town of Hempstead, 959 F. Supp. 585, 591 (E.D.N.Y. 1997) (accord). In addition, because the purpose of preliminary injunctive relief is to preserve the status quo pending resolution of the underlying controversy, the granting of a mandatory injunction — such as would compel rather than prohibit conduct — requires an even greater showing of necessity from the moving party. Jacobson Co., Inc. v. Armstrong Cork Co., 548 F.2d 438, 441 (2d Cir. 1977). Ultimately, the decision to grant or deny this "drastic" remedy rests in the district court's sound discretion. See American Exp. Fin. Advisors Inc. v. Thorley, 147 F.3d 229, 231 (2d Cir. 1998); Molloy v. Metropolitan Transp. Auth., 94 F.3d 808, 811 (2d Cir. 1996).
There is some dispute as to whether the movants seek to preserve the status quo pending a determination on the merits or to compel a change in the status quo by divesting the Offerees of their retroactive seniority rights. Because the movants cannot meet the basic showing of irreparable harm required for a preliminary injunction, this court need not decide whether a higher standard applies.
Irreparable Harm
A showing of irreparable harm is considered the "single most important requirement" in satisfying the preliminary injunction standard. Alliance Bond Fund, Inc. v. Grupo Mexicano de Desarrollo, S.A., 143 F.3d 688, 696 (2d Cir. 1998), rev'd on other grounds, 527 U.S. 308 (1999); see also Reuters Ltd. v. United Press Int'l, Inc., 903 F.2d 904, 907 (2d Cir. 1990) (recognizing that "`irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction'") (quoting Bell Howell: Mamiya Co. v. Masel Co., 719 F.2d 42, 54 (2d Cir. 1983)). "A moving party must show that the injury it will suffer is likely and imminent, not remote or speculative, and that such injury is not capable of being fully remedied by money damages." National Association for Advancement of Colored People. Inc. (NAACP) v. Town of East Haven, 70 F.3d 219, 224 (2d Cir. 1995) (citing Tucker Anthony Realty Corp. v. Schlesingeir, 888 F.2d 969, 975 (2d Cir. 1989)); see also Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982) ("The Court has repeatedly held that the basis for injunctive relief in the federal courts has always been irreparable injury and the indequacy of legal remedies").
At the outset, the court observes that the movants filed these preliminary injunctions in February 2002, two years after this court rendered its decision approving the Agreement and the Municipal Defendants implemented its provisions, as they were required to do under its terms. At no time did the Intervenors, who were represented by counsel when this court issued its decision, seek a stay of any of the Agreement's provisions. Indeed, the movants proffer no reasonable explanation for their failure to seek this relief earlier.
Although movants' counsel expressed surprise, at a conference before me in December 2001, that the permanent appointment and retroactive seniority provisions of the Agreement had been implemented during the course of their appeal to the Second Circuit, none of the movants themselves claim that they did not know that those benefits had been conferred. In fact, they could not do so in good faith, especially in light of the fact that one of the Intervenors in the 1996 Case is married to an Offeree who received such benefits. (See Lonergan Aff. ¶ 9.)
The Second Circuit has observed that "[p]reliminary injunctions are generally granted under the theory that there is an urgent need for speedy action to protect the [movants'] rights." Citibank, N.A. v. Citytrust, 756 F.2d 273, 275 (2d Cir. 1985). Thus, "[d]elay in seeking enforcement of those rights . . . tends to indicate at least a reduced need for such drastic, speedy action" and may "indicate an absence of the kind of irreparable harm required to support a preliminary injunction."Id. As a result, courts consistently deny injunctive relief where there has been a significant delay in seeking it. See Majorica v. R.H. Macy Co., 762 F.2d 7, 8 (2d Cir. 1985) ("Lack of diligence, standing alone, may . . . preclude the granting of preliminary injunctive relief"); ImOn, Inc. v. ImaginOn, Inc., 90 F. Supp.2d 345, 350 (S.D.N.Y. 2000) ("any presumption of irreparable harm `is inoperative if the plaintiff has delayed . . . in moving for preliminary injunction'") (quoting Marcy Playground, Inc. v. Capitol Records, Inc., 6 F. Supp.2d 277, 281 (S.D.N.Y. 1998)); The Media Group, Inc. v. Ontel Prods. Corp., No. CIVA300CV2034, 2001 WL 169776, at *4 (D. Conn. Feb. 14, 2001) (delay of four months in bringing suit and six months in seeking preliminary injunction "demonstrates that the harm suffered . . . was not irreparable"); Worldwide Sport Nutritional Supplements, Inc. v. Five Star Brands, LLC, 80 F. Supp.2d 25, 34-35 (N.D.N.Y. 1999) (seven month delay in seeking injunction in trade secret case sufficient to defeat motion for preliminary injunction); Ahmad v. Long Island Univ., 18 F. Supp.2d 245, 249 (E.D.N.Y. 1998) (plaintiff's fifteen-month delay in requesting preliminary injunction in employment discrimination case undermined his motion); Shady v. Tyson, S F. Supp.2d 102, 108 (E.D.N.Y. 1998) ("`This delay in seeking relief bolsters the Court's conclusion that there has been an insufficient showing of irreparable harm to justify issuance of a preliminary injunction'") (quoting Costello v. McEnery, 767 F. Supp. 72, 75 (S.D.N.Y. 1991), aff'd, 948 F.2d 1278 (2d Cir. 1992)); Ivy Mar Co., Inc. v. C.R. Seasons Ltd., 907 F. Supp. 547, 551 (E.D.N.Y. 1995) (ten month delay in seeking injunction justified denial of motion). Here, the movants' significant delay in seeking a preliminary injunction undermines their claim that the harm they allege is irreparable.
As James Lonergan, the Senior Director of Building Services for the Board of Education, explains, the only competitive job benefits that may be affected by the Agreement's retroactive seniority provisions are the voluntary transfers of Custodians and Custodian Engineers among schools. (Lonergan Aff. ¶ 14.) As explained in this court's previous opinion.
Custodians and Custodian Engineers compete for building assignments based on their relative seniority within seniority categories and their performance ratings. Lists of available openings, known as "Transfer Lists," are released approximately five times per year. Eligible employees then bid for the openings in which they are interested. A permanent Custodian or Custodian Engineer may request a transfer to any school that is listed as available for his or her job title. If more than one employee within the same 5-year seniority band bids to transfer to a particular school, an employee's performance rating is the first determinant for selection. Employees whose average performance ratings . . . are within .25 of each other are considered equivalent. Among employees with equivalent ratings, seniority then becomes the deciding factor in awarding the position. . . . The names of the top five bidders for any school on the Transfer List are then submitted to the community superintendent and the local school boards; the person who is number one on the list receives the transfer unless the superintendent or the school board objects.United States v. New York City Bd. of Educ., 85 F. Supp.2d at 139 (citations omitted.).
Not all permanent Custodians and Custodian Engineers are eligible to bid for transfers. For example, a Custodian or Custodian Engineer who has received a transfer within the previous two years may not bid again. (Lonergan Aff. ¶ 23.) Also, a Custodian or Custodian Engineer who is on probation or has a disciplinary matter pending against him or her is ineligible for a voluntary transfer. (Id.)
Contrary to this court's earlier suggestion, the retroactive grants of seniority in this case apparently do not affect "temporary care" assignments, which occur when a school building becomes vacant, meaning that there is no full-time permanent Custodian or Custodian Engineer, provisional Custodian or Custodian Engineer, or private contractor in attendance. Under the temporary care system, a Custodian or Custodian Engineer is responsible for both his or her permanent assignment and the temporary assignment, and is paid for both. For the first six months of a temporary care assignment, a Custodian or Custodian Engineer receives 75 percent of double salary while devoting no extra time to the job; thereafter he or she receives a full double salary. Each borough office maintains a temporary care list for the district in which the school is located. Permanent Custodians and Custodian Engineers become eligible for temporary care assignments after one year of service in the position. An employee's position on the list is determined by the date on which he or she completed probation, and not by his or her seniority date. (Lonergan Aff. ¶ 17.) Thus, an Offeree who already had permanent status and had completed probation was not given an earlier completion-of-probation date and was not moved up on the eligibility list for temporary care assignments. (Id.)
The movants therefore argue, in essence, that they may apply for school transfers at some point in the future and, if they do, they face the possibility that the transfers will be denied and instead given to Offerees who received grants of retroactive seniority through the Agreement. A school transfer can affect one's salary. Each school has a maximum permissible salary, which is primarily a function of the size of the building; the larger the square footage of the building, the higher the maximum permissible salary. New York City Bd. of Educ., 85 F. Supp.2d at 138.
However, the competition for school transfers is not stiff, especially among Custodian Engineers. Since the Agreement was implemented in March 2000, the Board of Education has released six vacancy lists, each containing, on average, 185 vacancies for Custodian Engineers and fifteen vacancies for Custodians. (Lonergan Aff. ¶ 22.) According to Mr. Lonergan, there has been "no competition whatsoever" for "the vast majority of the schools on the Vacancy Lists issued since the Settlement was implemented." Id. ¶ 28. As explained, in the rare instances where there is more than one bidder for a particular school, a bidder's performance rating from the previous two years is the first determinant for selection. New York City Bd. of Educ., 85 F. Supp.2d at 139. Only if the top applicants are tied in performance ratings (meaning that their ratings are within .25 of each other on a five point scale), does the Board of Education use seniority as a tie breaker. (Lonergan Aff. ¶ 30.)
The far greater number of vacancies for Custodian Engineers reflects the Board of Education's severe and persistent shortage of Custodian Engineers. (Lonergan Aff. ¶ 22.)
Of the Intervenors and proposed Intervenors in the 1996 Case, only one — Dennis Mortensen — has applied for a transfer since implementation of the Agreement (id. ¶ 33), although most of them state that they intend to apply for transfers at some undetermined time in the future. (Declaration of James Aheam, dated January 31, 2002, ¶ 3; Declaration of John Brennan, dated February 1, 2002, ¶ 3; Declaration of Kurt Brunkhorst, dated February 4, 2002, ¶ 3; Declaration of Scott Spring, dated January 31, 2002, ¶ 3; Declaration of Dennis Mortensen, dated January 31, 2002.) Mr. Mortensen, a Custodian, obtained a transfer to a school of his choice in May 2000 and is now eligible to apply again. (Id. ¶ 34.) Mssrs. Mitchell and Schauer, permanent Custodian Engineers who are plaintiffs in the 2002 Case, have bid on eight schools and fifteen schools, respectively, since implementation of the Agreement. (Id. ¶¶ 35, 36.) Each lost one school to an Offeree who gained higher seniority through the Agreement, and neither school was Mr. Mitchell's or Mr. Schaucr's first choice. (Id. ¶¶ 37, 38.) There is no evidence in the record that any one of the movants currently has a transfer application pending.
Plaintiff and proposed Intervenor Ernie Tricomi did not submit a declaration on this point.
The movants claim that they will suffer two types of irreparable injury if the preliminary injunction is not granted: (1) they claim that they will be discriminated against on the basis of their race (white) and sex (male); and (2) they contend that they will be threatened with irreparable economic injury" because it will be "impractical for them to seek damages later for any transfers they are denied as a result of the Agreement." (Memorandum of Law in Support of Plaintiff's Motion for a Preliminary Injunction, filed February 11, 2001 ("P/I Mem. of Law") at 11.) As an initial matter, the court is hard-pressed to understand how the movants can demonstrate that they are facing any "likely and imminent" injury from the grant of retroactive seniority to the Offerees when none of them currently has a transfer application pending. Although most of the movants claim that they intend to apply for transfers someday, most of them have not applied for school transfers in the past two years; nor have they stated when in the future they expect to do so. If and when they do apply for transfers, it is by no means certain that they will be competing against any of the Offerees.
It is undisputed that, in order for an incumbent Custodian or Custodian Engineer to lose a transfer to one of the Offerees, both must request a transfer to the same school. In addition, the Offeree and the incumbent must have the same job title and their performance ratings must be within .25 points of each other. If the incumbent has a higher performance rating, then he will outrank the Offeree, regardless of seniority. Correspondingly, if the Offeree has a higher rating, then it will be that rating, and not his or her relative seniority, that will place the Offeree ahead of the incumbent in the competition for that school. In other words, the outcome of future transfer requests is unpredictable. Considering all of the variables that would have to fall into place in order for one of the movants to lose a bid to one of the Offerees, that possibility, while existent, cannot be deemed sufficiently "likely and imminent" to warrant the drastic and extraordinary remedy of a preliminary injunction. See Borey v. National Union Fire Ins. Co. of Pittsburgh, 934 F.2d 30, 34 (2d Cir. 1991) ("A mere possibility of irreparable harm is insufficient to justify the drastic remedy of a preliminary injunction").
Moreover, even if such a scenario were "likely and imminent," the movants cannot show that the injury they would suffer is incapable of being fully remedied by money damages. The movants do not argue that there are any unique advantages to some schools that are unavailable in others, or that they have suffered or expect to suffer some kind of emotional or psychological trauma, stigma, or injury to their dignity from the grant of retroactive seniority to the Offerees. Nor do they claim that they face any impending financial hardship resulting from the Agreement. Their complaint is that they may be denied future increases in pay if they apply for and are denied transfers to larger schools. If the movants are ultimately successful in proving that the Agreement is not lawful, fair, reasonable, adequate, and consistent with the public interest (see New York City Bd. of Educ., 85 F. Supp.2d at 136 (citing EEOC v. Hiram Walker Sons, Inc., 768 F.2d 884, 889 (7th Cir. 1985); Vulcan Soc'y of the New York City Fire Dep't. Inc. v. City of New York, 96 F.R.D. 626, 629 (S.D.N.Y. 1983)), and that they lost school transfers to the Offerees as a result of the retroactive seniority grants, then the loss of the difference in pay can be remedied. The movants do not argue that their financial losses would be impossible to calculate, only that such calculations would be "impracticable." Even assuming the truth of this disputed assertion, the mere impracticability of measuring money damages is not enough to show the absence of a legal remedy. See Eastman Kodak Co. v. Southern Photo Materials Co., 273 U.S. 359, 379 (1927) ("Damages are not rendered uncertain because they cannot be calculated with absolute exactness'");General Textile Printing Processing Corp. v. Expromtorg Int'l Corp., 862 F. Supp. 1070, 1075 (S.D.N.Y. 1994) ("[T]he mere necessity of making an informed approximation of damages should not preclude the adequacy of a legal remedy") (internal citation and quotes omitted)). See also C A Carbone, Inc. v. Town of Clarkstown, 770 F. Supp. 848, 854 (S.D.N.Y. 1991) ("The importance to the movant of demonstrating clearly and convincingly exactly why money damages are inadequate cannot be overstated").
Regardless, some courts have held that even "a showing of imminent financial ruin is legally insufficient to establish the irreparable harm necessary to confer equitable jurisdiction on the district court." Altman v. Commissioner of Internal Revenue, No. 91 Civ. 8389, 1993 WL 119684, at *3 (S.D.N.Y. Apr. 14, 1993) (citing Brewer v. United States, 764 F. Supp. 309, 312 (S.D.N.Y. 1991); Greenhouse v. United States, 738 F. Supp. 709, 713 (S.D.N.Y. 1990); Hughes v. United States, 953 F.2d 531, 536 (9th Cir. 1992); Elias v. Connett, 908 F.2d 521, 526 (9th Cir. 1990)).
Although the movants complain of a "domino effect," which can make it difficult to reconstruct the possible indirect consequences of the exercise of seniority, Mr. Lonergan explains that the voluntary transfer system "does not result in the movement of large numbers of permanent Custodians or Custodian Engineers, either in absolute terms or relative to the size of the permanent workforce." (Lonergan Aff. ¶ 42.) Since school staffing appears fairly stable, the potential for harm due to the complained-of "domino effect" is relatively small, and certainly is not incapable of being remedied by money damages. See Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir. 1989) ("A monetary loss will not suffice [to justify a preliminary injunction] unless the movant provides evidence of damage that cannot be rectified by financial compensation").
The movants argue that irreparable harm should be presumed here because they "will likely suffer race and sex discrimination in violation of the Constitution if a preliminary injunction is not issued" and such discrimination "constitutes irreparable harm per se." (P/I Mem. of Law at 11.) There is no question that a preliminary injunction is appropriate if constitutional interests are threatened or in fact being impaired at the time injunctive relief is sought. See, e.g., Elrod v. Burns, 427 U.S. 347, 373-74 (1976) (threat of discharge if plaintiffs refused to support Democratic Party warranted injunctive relief to prevent irreparable harm to first and fourteenth amendment freedoms); Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) (recognizing a "presumption of irreparable injury that flows from a violation of constitutional rights" in Eighth Amendment case and granting inmate preliminary injunctive relief requiring prison officials to release him from "medical keeplock" during pendency of suit); Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984) ("[w]hen an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary"). However, irreparable injury sufficient to warrant a preliminary injunction does not exist in every case alleging discrimination. See Pinckney v. Board of Educ., 920 F. Supp. 393, 400 (E.D.N.Y. 1996) ("the mere allegation of a constitutional infringement in and of itself does not constitute irreparable harm"); see also Public Serv. Co. of N.H. v. Town of W. Newbury, 835 F.2d 380, 382 (1st Cir. 1987) (recognizing that not all allegations of constitutional violations are sufficient to be irremediable by subsequent relief). Rather, courts must evaluate each case individually and "determine irreparable injury by considering what adverse factual consequences the plaintiff apprehends if an injunction is not issued. . . ." Time Warner Cable v. Bloomberg, LP, 118 F.3d 917, 924 (2d Cir. 1997). If the movant can be made whole with money damages, then a preliminary injunction will not issue, regardless of the nature of the violations alleged. See Pinckney, 920 F. Supp. at 400.
Even assuming that such a presumption of irreparable harm would ordinarily apply here, the presumption is "inoperative if the [movant] has delayed . . . in . . . moving for preliminary injunctive relief."Tough Traveler, Ltd. v. Outbound Prods., 60 F.3d 964, 968 (2d Cir. 1995).
The cases movants cite for the proposition that racial classifications constitute irreparable harm per se all appear outside of the employment context and are wholly distinguishable. See Shaw v. Hunt, 517 U.S. 899 (1996) (no preliminary injunction involved); Brewer v. West Irondequoit Cent. Sch. Dist., 212 F.3d 738 (2d Cir. 2000) (upholding finding of irreparable harm, but vacating preliminary injunction on other grounds, in case with "unique and somewhat outrageous facts" in which fourth grader challenging race-based school transfer policy was twice told she could attend school in neighboring district and the offers were later withdrawn); Mitchell v. Cuomo, 748 F.2d 804 (2d Cir. 1984) (upholding preliminary injunction in Eighth Amendment case where prison inmates challenged plan to close prison on grounds that closure would lead to dangerous overcrowding); Gresham v. Windrush Partners, Ltd., 730 F.2d 1417, 1423 (11th Cir. 1984) (upholding preliminary injunction against apartment complex accused of engaging in racially discriminatory housing practices because available housing would likely have been filled during the pendency of the lawsuit, making corrective relief "nearly impossible to enter"); Monterey Mech. Co. v. Wilson, 125 F.3d 702, 714-15 (9th Cir. 1997) (reversing denial of preliminary injunction after finding, as a matter of law, that challenged statute setting out construction bidding process contained unconstitutional racial and sexual preferences); Back v. Carter, 933 F. Supp. 738, 754 (N.D. Ind. 1996) (attorney showed irreparable injury from law imposing minority and gender quotas on judicial nominating commission of which he had been member, where plaintiff prematurely lost his seat so that elections could be held in implementation of law); Equal Open Enrollment Ass'n v. Board of Educ. of Akron, 937 F. Supp. 700 (N.D. Ohio 1996) (granting preliminary injunction to students challenging school district policy prohibiting white students from transferring schools after finding that policy was not narrowly tailored to achieve state interest and would cause "pragmatic difficulties" for students); Milwaukee County Payers Ass'n v. Fiedler, 707 F. Supp. 1016, 1032-33 (W.D. Wis. 1989) (granting preliminary injunction to highway contractors challenging construction bidding rules where plaintiffs had no adequate remedy at law because Eleventh Amendment posed a bar to any award of money damages).
Accordingly, courts are loathe to grant preliminary injunctions in employment cases where other remedies are available. See id. (denying preliminary injunction despite constitutional due process claim where lawsuit was "at its core" a "claim for money damages"); Snead v. Burstein 635 F. Supp. 808, 811 (N.D.N.Y. 1986) (employee's lost opportunity to compete for higher grade position and his demotion to lower grade position following his failure of civil service examination that arguably had racially adverse impact did not constitute irreparable harm). In fact, courts repeatedly have held that even termination from employment does not rise to the level of "irreparable harm" required to grant a preliminary injunction. See Sampson v. Murray, 415 U.S. 61, 89-92 (1974) (injuries generally associated with a discharge from employment — loss of reputation, loss of income and difficulty in finding other employment — do not constitute the "irreparable harm" necessary to obtain a preliminary injunction); Savage v. Gorski, 850 F.2d 64, 67 (2d Cir. 1988) (loss of employment does not in and of itself constitute irreparable injury); Faro v. New York University, 502 F.2d 1229, 1232 (2d Cir. 1974) (university faculty member whose employment was terminated following termination of research grant and who alleged sex discrimination did not show such irreparable harm as would warrant preliminary injunction); Hartzog v. Reebok Int'l Ltd., 77 F. Supp.2d 475, 477 (S.D.N.Y. 1999) (employee alleging employment discrimination did not suffer immediate and irreparable injury as result of his suspension without pay so as to warrant injunctive relief of reinstatement pendente lite, even if job was his sole source of economic support); Ahmed v. Long Island Univ., 18 F. Supp.2d 245, 249 (E.D.N.Y. 1998) (denying request for TRO where university professor sued state university, alleging race and national-origin employment discrimination in violation of Title VII and state human rights law, because imminent termination of professor's employment did not rise to level of "irreparable harm"); Pollis v. The New School for Social Research, 829 F. Supp. 584, 591 (S.D.N.Y. 1993) (70-year-old tenured professor who was forced to retire and brought action alleging violation of Age Discrimination in Employment Act and Title VII was not entitled to preliminary injunction because financial distress does not constitute irreparable harm); Robinson-Pitts v. Board of Educ. of the City of N.Y., 544 F. Supp. 187, 188 (E.D.N.Y. 1982) (plaintiff who alleged that the termination of her employment was the result of race and sex discrimination was not entitled to preliminary injunction to restore her to former position, since plaintiffs allegations of loss of employment and attendant loss of reputation and flow of current income were insufficient to establish irreparable harm). See also Shady v. Tyson, 5 F. Supp.2d 102, 109 (E.D.N.Y. 1998) (discussing the requisite showing a movant must make to establish irreparable injury in the context of employment discrimination and holding that "`[i]n essence, the [movant] must quite literally find [himself or herself] being forced into the streets or facing the spectre of bankruptcy before a court can enter a finding of irreparable harm'") (quoting Williams v. State Univ. of N.Y., 635 F. Supp. 1243, 1248 (E.D.N.Y. 1986)). If actual termination does not suffice to demonstrate irreparable harm, then certainly the grant of retroactive seniority to other employees cannot do so. Because the movants can be adequately compensated by monetary damages and other post-litigation relief, they have failed to satisfy the irreparable harm prong for a preliminary injunction.
Likelihood of Success on the Merits
The second step of the inquiry requires that the movants demonstrate a likelihood of success on the merits or sufficiently serious questions going to the merits of the case to make them a fair ground for litigation and a balance of hardships tipping decidedly in their favor. Before engaging in this analysis, the court would ordinarily be required to determine whether the movants are required to make an ordinary showing of likelihood of success or a more heightened showing. In addition, the Municipal Defendants argue that the movants cannot rely on the "balance of hardships" standard because that standard is not available when an injunction "seeks to prevent government action taken pursuant to statutory authority, which is presumed to be in the public interest."Molloy v. Metro. Transp. Auth., 94 F.3d 808, 811 (2d Cir. 1996). However, the court need not undertake such an analysis. As stated above, the movants clearly are unable to establish irreparable harm. Accordingly, they are not entitled to equitable relief no matter how likely their chances of success on the merits and regardless of whether the balance of hardships tips in their favor.
I am constrained to note, nonetheless, that the movants appear to misapprehend their burden on the merits. As explained at great length in this court's earlier opinion, voluntary settlements in Title VII cases are entitled to a "presumption of validity." As the parties seeking to overcome that presumption, the movants will have the ultimate burden of proving that the Agreement "contains provisions which are unreasonable, illegal, unconstitutional, or against public policy." New York City Bd. of Educ., 85 F. Supp.2d at 136. of course, they will be given every reasonable opportunity to conduct discovery and present evidence to support their claims, but they cannot shift their burden to the United States or the Municipal Defendants. The movants are also reminded that, to the extent any of the remedies in the Agreement can be considered race or sex-conscious, "a showing of a prima facie case of employment discrimination through a statistical demonstration of disproportionate racial impact constitutes a sufficiently serious claim of discrimination to serve as a predicate for a voluntary compromise containing race-conscious remedies." Kirkland v. New York State Dep't of Correctional Servs., 711 F.2d 1117, 1130 (2d Cir. 1983).
CONCLUSION
For the reasons stated above, the motion for a preliminary injunction is denied in the 1996 Case, and I respectfully recommend that the motion be denied in the 2002 Case. Any objections to the Report and Recommendation in the 2002 Case must be filed within ten (10) days, with a courtesy copy to Judge Block, in order to preserve appellate review. See 28 U.S.C. § 636(b)(1).So Ordered and Respectfully submitted,