DeNovellis v. Shalala
| Decision Date | 03 September 1997 |
| Docket Number | P,JANEY-BURREL,Nos. 97-1090,s. 97-1090 |
| Citation | 135 F.3d 58 |
| Parties | 75 Fair Empl.Prac.Cas. (BNA) 1838, 72 Empl. Prac. Dec. P 45,253 Vincent DeNOVELLIS, Plaintiff, Appellant, v. Donna E. SHALALA, Secretary of Health and Human Services, Defendant, Appellee. Paul H. KELLEY, Plaintiff, Appellant, v. Donna E. SHALALA, Secretary of Health and Human Services, Defendant, Appellee. Laurentinalaintiff, Appellant, v. Donna E. SHALALA, Secretary of Health and Human Services, Defendant, Appellee. to 97-1092. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Phyllis Fine Menken, Charlestown, MA, for appellant Janey-Burrell.
Jodie Grossman, Boston, MA, for appellants DeNovellis and Kelley.
John A. Capin, Assistant U.S. Attorney, with whom Donald K. Stern, United States Attorney, Boston, MA, was on brief, for appellee.
Before STAHL, Circuit Judge, BOWNES, Senior Circuit Judge, and LYNCH, Circuit Judge.
During the course of a nationwide restructuring of the United States Department of Health and Human Services (HHS) in 1996, the Administration for Children and Families reorganized its ten regional offices into five major "hub" offices and adjunct offices. Although Boston has been affectionately referred to as the "Hub of the Universe," the Boston field office lost out to larger urban centers and was not designated a hub office. As a result, the Boston office was directed to shrink its size, and did so by reorganizing from two levels of managerial employees to one, accomplishing this by eliminating its middle management positions. Five middle management employees in the Boston office were given the option of either accepting a demotion or laterally transferring to the same positions at locations other than Boston.
Three of these employees, Vincent DeNovellis, Paul Kelley, and Laurentina Janey-Burrell, sued HHS for violations of Section 704 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-34, and the Civil Service Reform Act of 1978 (CSRA), Pub.L. No. 95-454, 92 Stat. 1111 (), saying that the proposed reassignments constituted illegal age discrimination by forcing them to retire prematurely, and that HHS violated the CSRA by failing to follow proper procedures for a reduction-in-force. Janey-Burrell and DeNovellis also said that the reassignment decisions were made in retaliation for prior EEO claims they had filed which alleged racial discrimination by their supervisor.
The plaintiffs have chosen as their battlefield the equitable plains of preliminary injunctive relief, and there they falter. All three lost in their applications before the district court for issuance of preliminary injunctions under Fed.R.Civ.P. 60(b). Although Janey-Burrell obtained from a different district court judge, under Fed.R.Civ.P. 62(c), a stay pending appeal of the denial of the preliminary injunction, which the parties have treated as freezing Janey-Burrell into her pre-reassignment position pending this appeal, that stay is not the subject of this appeal--nor could it be by its own terms. This appeal is from the denial of the preliminary injunctions under Fed.R.Civ.P. 60(b). In the interim, DeNovellis and Kelley have retired.
We affirm. The claims of DeNovellis and Kelley for preliminary injunctive relief are now moot because of their retirement. As for Janey-Burrell, the district court did not abuse its discretion in denying the injunction.
We describe the facts as to Janey-Burrell; we need not discuss DeNovellis and Kelley because their claims are moot.
In 1993, Vice President Gore instituted the National Performance Review, which attempted to make federal agencies more cost-efficient and responsive to the public. Many HHS agencies have since undergone extensive review and reorganization, including the Administration for Children and Families (ACF), which administers over sixty federal human service programs, including Head Start and Aid to Families with Dependent Children. In 1994, HHS initiated a plan to streamline the ACF bureaucracy by reducing the number of administrative centers from ten regional offices to five hub offices. The five regional offices not selected as hub offices, including Boston, were directed to eliminate management positions and reorganize so they would have one level of management instead of the extant two levels. In October 1994, the Boston office implemented a plan to reorganize into five goal-driven work-groups in accordance with the five goals of the ACF reorganization plan. The five goal leaders and the Deputy Regional Administrator now comprise the sole management level at the Boston ACF office. The five goal leaders and the Deputy Regional Administrator are all over forty years of age.
Plaintiff Janey-Burrell was a mid-level manager at ACF at the GS-14 level prior to the reorganization. In November 1993, Janey-Burrell had filed an EEO complaint against her supervisor, Regional Administrator Hugh Galligan, and the Assistant Regional Administrator, Richard Stirling, alleging race and gender discrimination. In April 1994, Regional Administrator Hugh Galligan reassigned Janey-Burrell from her position of record to a temporary assignment without specific duties. In July 1994, Janey-Burrell filed a second EEO complaint against Galligan when he placed her on temporary assignment, alleging that this action was in retaliation for having filed her first EEO complaint. In October 1994, when the Boston regional office implemented its reorganization plan, Janey-Burrell was not chosen to be a goal leader. Along with the other mid-level managers not selected to be goal leaders, Janey-Burrell was permanently placed on temporary assignment pending reassignment to another permanent position within the agency. Janey-Burrell was assigned to the Office of Regional Director Philip W. Johnston, where she served as the Department's Violence Prevention and Community Based Program Coordinator.
During 1995 and 1996, in order to continue the streamlining process, the Boston office sought volunteers to relocate to other offices around the country. Four employees volunteered to relocate, but Janey-Burrell did not. This left five GS-14 mid-level managers remaining within the Boston office who had not been chosen to be goal leaders and whose positions were being eliminated by the reorganization. In June 1996, Diann Dawson, the ACF Regional Operations Director, decided to impose "directed reassignments" on those five remaining GS-14 mid-level managers, including Janey-Burrell, to equivalent positions in the hub offices around the country.
On June 11, 1996, Dawson wrote a letter to the five middle-managers in which she proposed their reassignment to different locations. Dawson's letter to Janey-Burrell proposed that Janey-Burrell fill a vacancy in the ACF office in San Francisco. The others were asked to fill vacancies in Chicago, Dallas, New York, and Atlanta. Dawson requested that Janey-Burrell and the others respond to the proposed reassignments within fifteen days of receipt of the letter. Janey-Burrell responded by letter on June 24, 1996, in which she rejected the reassignment. Among her reasons was that it would be harder for her to pursue her EEO claims against Galligan were she in San Francisco instead of Boston.
On July 9, 1996, Janey-Burrell received Dawson's response. Dawson said she had received Janey-Burrell's letter and had considered Janey-Burrell's objections to reassignment. Dawson wrote she had nevertheless decided to reassign Janey-Burrell to San Francisco effective August 18, 1996.
On August 13, 1996, Janey-Burrell was offered the option of staying in Boston. Before this date, one mid-level manager had enquired as to whether she could stay in Boston if she took a downgrade to a non-supervisory GS-13 position. This request was granted and Galligan, unsolicited, wrote a letter to Janey-Burrell notifying her that this had happened. He concluded, "If you are interested in doing the same, let me know." For Janey-Burrell, this downgrade would have allowed her to stay in Boston in a GS-13 position at a $13,000 reduction in annual pay. On August 16, 1996, Janey-Burrell filed a complaint with the district court seeking a temporary restraining order and preliminary injunctive relief to prevent her reassignment. Chief Judge Tauro granted the temporary restraining order.
On September 30, 1996, Judge Saris denied plaintiff's application for a preliminary injunction. Plaintiff filed a notice of appeal and a motion for stay pending appeal under Fed.R.Civ.P. 62(c). On November 22, 1996, the motion was heard by Judge Gertner, to whom the case had been transferred, who granted the stay pending appeal. 1 Janey-Burrell has remained in her GS-14 supervisory position since that time, even though ACF has otherwise completed its reorganization. The defendants have informed this court that the choice of going to San Francisco or remaining in Boston as a GS-13 employee is still open to her.
Janey-Burrell's claim fails for a number of reasons. As the district court found, she has not demonstrated irreparable injury and, save for her civil service claims (as to which she has not exhausted her administrative remedies), she has not demonstrated probability of success on the merits. We do not reach the other criteria for injunctive relief.
We repeat and apply here the familiar standard for issuance of preliminary injunctive relief. A district court must weigh four factors: (1) the likelihood of the movant's success on the merits; (2) the potential for irreparable harm to the movant; (3) a balancing of the relevant equities, i.e., the hardship to the nonmovant if the injunction issues as contrasted with the hardship to the movant if interim relief is withheld; and (4) the effect on the public interest of a...
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