Ekanem v. Health & Hosp. Corp. of Marion County

• Decision Date: 09 November 1978
• Docket Number: No. 78-2092,78-2092
• Citation: 589 F.2d 316
• Parties: 18 Fair Empl.Prac.Cas. 1417, 18 Empl. Prac. Dec. P 8739 Alfred EKANEM et al., Plaintiffs-Appellees, v. The HEALTH & HOSPITAL CORPORATION OF MARION COUNTY et al., Defendants-Appellants. . Heard
• Court: U.S. Court of Appeals — Seventh Circuit

Page 316

589 F.2d 316

18 Fair Empl.Prac.Cas. 1417, 18 Empl. Prac.

Dec. P 8739

Alfred EKANEM et al., Plaintiffs-Appellees, v. The HEALTH & HOSPITAL CORPORATION OF MARION COUNTY et al Defendants-Appellants.

No. 78-2092.

United States Court of Appeals Seventh Circuit.

Heard Nov. 9, 1978.

Decided Dec. 21, 1978.

Rehearing En Banc Denied Jan. 18, 1979.

Gregory J. Utken, Indianapolis, Ind., for defendants-appellants.

John O. Moss, Indianapolis, Ind., for plaintiffs-appellees.

Before CUMMINGS, SPRECHER and WOOD, Circuit Judges.

PER CURIAM.

Alfred Ekanem, a black, Mrs. Linda Marshall, a white, and two other individuals ¹ brought this class action ² against The Health & Hospital Corporation of Marion County, Indiana (the Corporation), five officials and six institutions. The suit was filed under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e Et seq.) and under 42 U.S.C. §§ 1981, 1983, 1985(3) and 1988. The complaint alleged both that the defendants engaged in a pattern of employment discrimination based on race and encompassing hiring, job assignments, transfers, promotions and the like, and that they unlawfully retaliated against the individual plaintiffs for protesting such discrimination. Specifically, plaintiff Ekanem asserted that he was the victim of retaliatory discharges, and plaintiff Marshall alleged retaliatory discrimination in working conditions.

The district court granted plaintiffs' motion for a preliminary injunction reinstating plaintiff Ekanem to his employment with the Corporation and prohibiting retaliation by the Corporation against plaintiff Marshall and other employees. Defendants appeal that order.

This suit arises out of a series of conflicts between the plaintiffs and their employer spanning several years. Mr. Ekanem was hired by the Corporation as an interviewer in its personnel department in October 1972, and was promoted to Assistant Personnel Director on January 1, 1974. In December 1974, however, he was involuntarily transferred to the position of Deputy Administrator of the Corporation's Community Development Health Program (CDHP). On December 12, 1974, a number of employees, including plaintiff Marshall, signed a petition protesting Ekanem's transfer from the personnel department. Plaintiff Ekanem filed a charge with the Equal Employment Opportunity Commission (EEOC) on February 11, 1975, alleging that his transfer was an unlawful retaliation for his having protested the Corporation's discriminatory policies. On March 3, 1977, the EEOC issued its determination that there was probable cause to believe the transfer had been retaliatory.

Plaintiff Marshall was first employed by the Corporation in February 1970. In September 1974, the National Association for the Advancement of Colored People (NAACP) filed a third-party charge with the EEOC, alleging racially discriminatory employment practices by the Corporation. Plaintiff Marshall was certified as one of the employees on whose behalf this third-party charge was filed. ³ In March 1976, Mrs. Marshall was transferred to the CDHP office at her own request.

On February 2, 1977, the CDHP office was closed and plaintiffs Marshall and Ekanem were terminated. On February 7 both of them filed charges with the EEOC, alleging they had been discharged "with no reason given." Mrs. Marshall's request to transfer to another department of the Corporation was granted, and she has been employed there since February 6, 1977. Mr. Ekanem, however, has been unable to find any regular employment.

In his February 1977 charge before the EEOC, Ekanem claimed that the Corporation discriminated against him because he had protested racial discrimination and had filed the previous EEOC charge against it in February 1975. Plaintiff Marshall's charge claimed that the Corporation discriminated against her because she had protested discriminatory practices and because of her white race.

The February 1977 charges resulted in both plaintiffs receiving right-to-sue letters from the Department of Justice authorizing them to institute suit under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e Et seq.). However, no finding was made as to probable cause to believe that discrimination had occurred with regard to these charges. The letters were dated April 27, 1978, and received about April 29, 1978. Plaintiffs had filed the complaint in this action on April 18, 1977. As a result of receiving the April 27 right-to-sue letters, plaintiffs filed a motion for a preliminary injunction on June 12, 1978, and two days thereafter requested leave to file their amended complaint to include references to those letters. ⁴ The motion for preliminary injunction was supported by an affidavit of Ekanem stating that he was discharged because he was black and because he encouraged the Corporation to follow non-discriminatory employment practices and that Mrs. Marshall was discharged because she encouraged the Corporation to follow non-discriminatory employment practices. Ekanem also alleged in his affidavit that in contrast to other employees of phased-out departments of the Corporation, he was not absorbed elsewhere in the Corporation and had remained unemployed ever since his February 1977 discharge.

Commencing July 5, 1978, the district court conducted an evidentiary hearing with respect to plaintiffs' motion for a preliminary injunction. At the close of the five-and-one-half day hearing, Judge Steckler requested counsel for plaintiffs to prepare findings of fact and conclusions of law to support the issuance of a preliminary injunction ordering Ekanem to be reinstated in a position comparable to the one he had held and restraining the Corporation from taking any retaliatory measures against Mrs. Marshall or other employees who might engage in activities protected by Title VII of the Civil Rights Act of 1964.

On August 18, 1978, the district court entered a preliminary injunction order in plaintiffs' favor, together with supporting findings of fact and conclusions of law. According to the findings of fact prepared by plaintiffs' counsel and adopted by the district court, in late 1973 and throughout 1974 Mrs. Marshall engaged in activities protesting alleged discriminatory employment practices of the Corporation. Specifically, on September 5, 1974, she participated in the filing of the NAACP third-party charge before the EEOC against the Corporation and on December 12, 1974, she signed the petition requesting the reinstatement of Ekanem to his position as Assistant Personnel Director. ⁵ The district court also found that Mrs. Marshall had voluntarily transferred to the Corporation's CDHP department on March 8, 1976.

The findings also traced Ekanem's employment record with the Corporation, stating that the Corporation had terminated him from his position as Assistant Personnel Director in retaliation for his opposition to the Corporation's employment practices. ⁶ The court also found that on February 2, 1977, the Corporation terminated Ekanem's, Mrs. Marshall's and Donald Kemp's ⁷ employment when it phased out its CDHP department while absorbing the other three employees of that department. According to the findings of fact, Ekanem suffered irreparable harm since February 2, 1977, in that he had not obtained comparable employment and had been restricted from membership in certain professional societies because of his loss of active employment. Judge Steckler concluded that the loss of professional associations was not "subject to measurement and monetary compensation." Moreover, he found that the Corporation would not be harmed if required to reinstate Ekanem and concluded that he should be reinstated to a position comparable to the one he held immediately prior to his discharge. Finally, the court found that defendants should be enjoined from discriminating against Mrs. Marshall and any other employees of the Corporation who had protested its alleged discriminatory employment practices. Consequently a preliminary injunction was entered with respect to Ekanem's reinstatement and forbidding retaliation against Mrs. Marshall.

Defendants have appealed from the preliminary injunction order. Because their application for a stay pending appeal was denied, Ekanem has been reemployed by the Corporation. The gravamen of the appeal is that the district court abused its discretion in granting preliminary relief to plaintiffs. We agree that plaintiffs failed to establish necessary elements for the granting of a preliminary injunction and therefore reverse. Indeed the district judge forecast our action (Tr. 909).

The plaintiffs emphasize that most of the cases supporting the defendants' contention that the injunction was improper involved refusals by district courts to grant preliminary injunctions. ⁸ They contrast that situation with the present one, where the district court has exercised its equitable powers, and stress that reviewing courts hold that the decision to grant or deny interlocutory injunctive relief is one of judicial discretion. See, E. g., Kolz v. Board of Education, 576 F.2d 747 (7th Cir. 1978). But to say that a district court may exercise discretion is not to say that such discretion is unreviewable. Discretionary choices "are not left to a court's 'inclination, but to its judgment; and its judgment is to be guided by sound legal principles'." Albemarle Paper Co. v. Moody, 422 U.S. 405, 416, 95 S.Ct. 2362, 2371, 45 L.Ed.2d 280.

To succeed in obtaining a preliminary injunction, a plaintiff seeking reinstatement in an employment case, like any other plaintiff, "must establish a reasonable probability of success on the merits, irreparable injury, the lack of serious adverse effects on others, and sufficient public interest." Kolz v. Board of Education, supra at 748; 11 Wright and Miller, Federal Practice and Procedure, § 2948. The legal principles as to what must be established for a plaintiff to prevail on the merits and as to what...