Marxe v. Jackson, 87-5074

• Decision Date: 05 January 1988
• Docket Number: No. 87-5074,87-5074
• Citation: 833 F.2d 1121
• Parties: 45 Fair Empl.Prac.Cas. 557, 45 Empl. Prac. Dec. P 37,591, 56 USLW 2335 Francine MARXE v. C.W. JACKSON, C.E. Yates, and AT & T Communications, Inc., Appellants.
• Court: U.S. Court of Appeals — Third Circuit

Page 1121

833 F.2d 1121

45 Fair Empl.Prac.Cas. 557,

45 Empl. Prac. Dec. P 37,591, 56 USLW 2335

Francine MARXE v. C.W. JACKSON, C.E. Yates, and AT & T Communications, Inc., Appellants.

No. 87-5074.

United States Court of Appeals, Third Circuit.

Argued July 21, 1987.

Decided Nov. 24, 1987.

Rehearing and Rehearing En Banc Denied Jan. 5, 1988.

Nadine Taub, Rutgers Women's Rights Litigation Clinic, Newark, N.J., for amicus

curiae American Civil Liberties Union of New Jersey, et al

Francis X. Dee (argued), Patrick G. Brady, Kevin C. Donovan, Laurence Reich, Carpenter, Bennett & Morrissey, Newark, N.J., Christine L. Miniman Morristown, N.J., Joseph V. Ippolito, AT & T Communications, Inc., Basking Ridge, N.J., for appellant.

Paul Schachter (argued), Denise Reinhardt, Reinhardt & Schachter, P.C., Newark, N.J., for appellee.

Charles A. Shanor, Gen. Counsel, Lorraine C. Davis, Acting Associate Gen. Counsel, Susan Buckingham Reilly, Asst. Gen. Counsel, E.E.O.C., Washington, D.C., for amicus curiae E.E.O.C.

Before BECKER, STAPLETON, and HUNTER, Circuit Judges

OPINION OF THE COURT

STAPLETON, Circuit Judge:

This appeal involves a challenge to a preliminary injunction granted by the district court in a title VII retaliation case. Appellants, Charles Jackson, Charles Yates, and American Telephone & Telegraph Communications Company (collectively AT & T), contend that the preliminary injunction was erroneously granted. They argue that the appellee, Francine Marxe, failed to demonstrate either likelihood of success on the merits or a threat of irreparable harm to herself. Marxe disagrees, contending that the district court correctly found both requirements to have been met. We conclude that while the record supports the finding of a likelihood of success on the merits, it does not support the finding of irreparable injury to Marxe. Accordingly, we will reverse.

I. FACTS

Francine Marxe worked for AT & T for more than 19 years and rose steadily through the AT & T ranks. On Jan. 1, 1975, after six years of employment, Marxe became an AT & T staff associate and in 1976, she was promoted to Level 3 status. She received a third promotion in January 1978, this time to Level 4, making her a division manager. Throughout this period of time, Marxe was regarded as well-qualified and received consistently positive evaluations.

By the fall of 1982, shortly after her transfer to Marketing Project Management, Marxe began experiencing what she perceived to be discriminatory treatment. According to her affidavit, Marxe requested a transfer in the summer of 1983, because of allegedly "differential" treatment she received from Charles Jackson, her immediate supervisor at the time, Charles Yates, and other agents of AT & T. She was not transferred. Because she felt that her supervisors did not respond adequately to her complaints, Marxe filed her initial charge with the Equal Employment Opportunity Commission (EEOC) in June 1985. The complaint enumerated ten manifestations of the perceived discrimination and charged that "[r]espondents have refused to remedy the discriminatory treatment afforded [me]." App. at 71.

Within six months of her first EEOC charge, Marxe was described as only "marginally satisfactory." Marxe felt that, after she filed the charge, Jackson viewed her with increasing hostility, and that he scrutinized her more closely and began to undercut her in public. In January 1986, Marxe filed a second EEOC charge. She filed this suit in the United States District Court for the District of New Jersey at about the same time.

Shortly thereafter Marxe was transferred to a new department, ostensibly so that her competence could be assessed by a new supervisor. She worked under two supervisors, Louis Golm initially and Francis Ianna after Golm received a promotion. Golm stated in his affidavit that he told Marxe "the performance [he] had seen ... was directionally correct and ... [that] if this type and level of performance were to continue, [he] would be pleased." App. at 217. Ianna was also satisfied with Marxe's performance.

On July 11, 1986, while Marxe's EEOC charges were pending, she was evicted from her office on little more than an hour's notice. She was allowed to take with her only her personal belongings and papers she needed that day. She was not permitted to return to her office until the end of the day. AT & T insists that the short-notice eviction was necessary to facilitate effective compliance with Marxe's discovery requests.

Marxe continued to work at AT & T during the pendency of her complaints and her suit. In the fall of 1986, she twice brought a tape recorder, which she kept in a handbag, to meetings with Ianna. Marxe surreptiously taped conversations concerning her job responsibilities and a work-force reduction plan that AT & T was implementing at that time. She testified at her deposition that her primary motivation in making the tapes was to enhance her job performance. She later realized that the tapes might prove useful in her lawsuit and delivered them to her attorney.

AT & T learned of the existence of the tapes on December 3, 1986, when Marxe produced copies of them in response to AT & T's discovery requests. Ianna and Bridget Manzi, a director-level executive assistant, confronted Marxe six days later and demanded an explanation of the taping. Ianna suspended Marxe shortly after she had completed her explanation. He confiscated her security badge and ushered her out of the building, treatment which, Marxe contends and AT & T disputes, ordinarily was accorded only employees guilty of serious crimes, such as theft or embezzlement, or who were leaving to join competing communications companies.

On December 12, 1986, nine days after having received the tapes, AT & T formally fired Marxe. Ianna read her the contents of a discharge letter over the phone. The letter stated, in part:

Your actions in secretly tape recording conversations with your supervisor and others while conducting business matters presents the company with a serious problem.... The above actions have unilaterally destroyed the trust which must exist as the foundation of the employer/employee relationship.... AT & T Communications, Inc., has considered the needs of the business and your stated reasons for the secretive tape recordings ... and has concluded that your services will no longer be required by the corporation.

App. at 214-215.

Thereafter Marxe petitioned the district court for preliminary relief, alleging that she had been fired in retaliation for her employment discrimination claims in violation of Section 704(a) of Title VII of the Civil Rights Act of 1964. ¹ Based on affidavits filed by the parties, the court concluded that Marxe had demonstrated a likelihood of success:

... I do not believe in good conscience they ... would have discharged her but for the fact that she was engaging in litigation, which is protected. I feel that they would not have ordinarily discharged someone else under the same circumstances.

App. at 299.

With respect to the existence of an imminent threat of irreparable harm to Marxe, the district court concluded that:

I do believe that in the context of this litigation, that there will be an injury which would be difficult, if not impossible for the plaintiff to carry this litigation forward if she were not reinstated. Any grown person of wide human experience in Title VII type of litigation has got to know that a crucial part of putting a case forward is the ability to marshal witnesses, obtain evidence, even to obtain insights from fellow employees.

I think her ability to do that would be nil if she were in a position where it was perceived by other employees that she incurred the wrath of the company and she was consigned to the unemployment ranks.

App. at 299-300. The court granted Marxe's request for preliminary relief, which it stayed pending resolution of this appeal.

II. ANALYSIS

"We have consistently held that our review of the grant or denial of preliminary injunctions is limited to determining whether there has been an abuse of discretion, an error of law, or a clear mistake in the consideration of the proof." Moteles v. University of Pennsylvania, 730 F.2d 913, 918 (3d Cir.), cert. denied 469 U.S. 855, 105 S.Ct. 179, 83 L.Ed.2d 114 (1984). This court has explained that "limited review is necessitated because the grant or denial of a preliminary injunction is almost always based on an abbreviated set of facts, requiring a delicate balancing ... [that] is the responsibility of the district judge." United States Steel Corp. v. Fraternal Ass'n of Steelhaulers, 431 F.2d 1046, 1048 (3d Cir.1970).

A. Likelihood of Success

Accordingly, if a study of the record suggests the district court did not completely miss the mark in its conclusion that Marxe is likely to succeed on the merits of her case, we must uphold the court's finding on that criterion. We conclude that the district court did not abuse its discretion and we uphold its finding.

The record contains evidence from which a trier of fact could conclude that (1) Marxe gave almost two decades of service to AT & T during the vast majority of which she was consistently rated as an above-average performer and repeatedly promoted, ultimately to a level of substantial management responsibility, (2) there were no complaints about her performance until after she had filed her first EEOC complaint, (3) after that filing, Jackson's hostility to Marxe increased and he repeatedly accused her of challenging his supervisory authority, (4) within six months of the filing of the first EEOC complaint, her evaluations had dropped to a rating of "marginally satisfactory," (5) Marxe filed a second EEOC complaint and a lawsuit, (6) AT & T's response to her request for production of documents and the manner in which AT & T ultimately escorted her from its premises evidenced hostility towards Marxe, and (7) given the fact that Marxe had not...