Moore v. Consolidated Edison Co. of New York, Inc.

• Decision Date: 02 June 2005
• Docket Number: Docket No. 03-9281.
• Citation: 409 F.3d 506
• Parties: Matricia MOORE, Plaintiff-Appellant, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. and John Morrill, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

Page 506

409 F.3d 506

Matricia MOORE, Plaintiff-Appellant, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. and John Morrill, Defendants-Appellees.

Docket No. 03-9281.

United States Court of Appeals, Second Circuit.

Argued: February 14, 2005.

Decided: June 2, 2005.

Stephen T. Mitchell, New York, NY, for plaintiff-appellant.

Jonathan A. Fields (Mary Schuette and Eva Martinez, on the brief), New York, NY, for defendants-appellees.

Before: SOTOMAYOR and KATZMANN, Circuit Judges, and CEDARBAUM, District Judge.^*

SOTOMAYOR, Circuit Judge.

Plaintiff-appellant Matricia Moore ("plaintiff" or "Moore") appeals from a judgment entered in the United States District Court for the Southern District of New York (Michael B. Mukasey, J.) denying her motion for an order to show cause seeking a preliminary injunction pursuant to Federal Rule of Civil Procedure 65. Plaintiff also appeals the denial of an evidentiary hearing on her motion for preliminary relief. Because we agree with the district court that there is no evidence that defendants have intimidated plaintiff or other witnesses from participating in litigation, we hold that the court did not abuse its discretion in denying preliminary relief or the request for an evidentiary hearing.¹

BACKGROUND

Plaintiff, an African-American woman, filed a motion for preliminary injunctive relief in October 2003 in connection with two discrimination lawsuits before the United States District Court for the Southern District of New York. The first of these lawsuits, filed in September 2000 against Consolidated Edison Corp. ("Con Ed"), alleged violations of the Family and Medical Leave Act, see 29 U.S.C. § 2601 et seq., and 42 U.S.C. § 1981, as well as violations of New York State Executive Law § 296. Plaintiff filed the second lawsuit in February 2003 against her supervisor at Con Ed, John Morrill (collectively with Con Ed, "defendants") alleging violations of 42 U.S.C. § 1981, New York Executive Law § 296 and New York City Administrative Code § 8-502.²

The alleged conduct underlying the complaints involved years of racially and sexually offensive misconduct. For example, according to plaintiff, her white male supervisor spoke to her about sexual fantasies involving plaintiff and told her on one occasion that "back in the old days you would be having my baby." Plaintiff further alleges that defendants attempted to derail her career at the company after she complained about unlawful discrimination by refusing to assist her professional development, sabotaging her work and giving her an unjustifiably poor performance review. In one performance evaluation in the record, the employer criticized plaintiff for "perpetuating her claims of harassment and discrimination," which in the employer's view evinced an objective "to undermine the morale of [the] department, and to cause division in the office." The report referred to the discrimination claims as "unsubstantiated" and warned that "[u]ntil [plaintiff's] attitude changes . . . there will be no opportunity for future development in this organization." The evaluation also criticized plaintiff for being antagonistic at work, causing disruptions, disrespecting internal procedures, failing to respond promptly to requests from her managers and failing to complete projects assigned to her. The report described plaintiff's contributions to the department as "immaterial at best."

Shortly after receiving this negative evaluation, plaintiff sought a preliminary injunction enjoining defendants from "seeking to intimidate" her as a witness in federal civil rights litigation "by unlawfully disciplining her and terminating her from employment." She contended that defendants were threatening her and retaliating against her because she had agreed to serve as a witness in other cases against Con Ed. She alleged that the defendants sought to cause her "permanent harm" at a time when she suffered post-traumatic depression—a condition for which Con Ed had allegedly been found responsible in a workers' compensation proceeding. As part of her effort to secure a preliminary injunction, plaintiff also requested a hearing so that the district court would be "presented with a full and fair account of the defendants' efforts to intimidate witnesses."

The district court denied plaintiff's motion on October 31, 2003. Chief Judge Michael B. Mukasey rejected the request for a preliminary injunction primarily on the ground that plaintiff did not demonstrate irreparable injury. He further rejected the request for a hearing, holding that "[a]bsent any issue to try, there is no occasion for a hearing." Shortly after the district court denied the preliminary injunction, defendants terminated plaintiff's employment. Plaintiff filed a timely appeal.

DISCUSSION

We address first an Article III jurisdictional issue.³ Both parties agree that shortly after the district court denied the preliminary injunction, defendants terminated plaintiff's employment. This raises the issue of mootness, because "`[i]n general, an appeal from the denial of a preliminary injunction is mooted by the occurrence of the action sought to be enjoined.'" Knaust v. City of Kingston, 157 F.3d 86, 88 (2d Cir.1998) (quoting Bank of New York Co. v. Northeast Bancorp, Inc., 9 F.3d 1065, 1067 (2d Cir.1993)); see Altman v. Bedford Cent. Sch. Dist., 245 F.3d 49, 69 (2d Cir.2001) ("[I]f the plaintiff loses standing at any time during the pendency of the proceedings in the district court or in the appellate courts, the matter becomes moot, and the court loses jurisdiction.").

A possible exception to this rule exists, however, where a court can feasibly restore the status quo. See Garcia v. Lawn, 805 F.2d 1400, 1402-04 (9th Cir.1986) (holding that appeal from the denial of preliminary injunction was not rendered moot by the termination of appellant's employment, because the court retained the power to reinstate the employment); Bastian v. Lakefront Realty Corp., 581 F.2d 685, 691 (7th Cir.1978) (holding that appeal from denial of preliminary injunction is not rendered moot where district court has power to restore status quo); see also Garcia, 805 F.2d at 1403 ("[T]he question is not whether the precise relief sought at the time the application for an injunction was filed is still available. The question is whether there can be any effective relief."). This Court has reserved the question of whether to recognize such an exception to the mootness doctrine. See Savoie v. Merchs. Bank, 84 F.3d 52, 59 n. 5 (2d Cir.1996) (citing Bank of New York Co., 9 F.3d at 1067); see also Knaust, 157 F.3d at 88 n. 1. We now hold that under the facts of the instant case, such an exception exists.

The occurrence of the action sought to be enjoined normally moots the request for preliminary injunctive relief because this Court has "`no effective relief to offer'" once the action has occurred. Id. at 88 (quoting CMM Cable Rep., Inc. v. Ocean Coast Props., Inc., 48 F.3d 618, 621 (1st Cir.1995)). In this case, however, we do not lack the ability to offer effective relief, because an order of injunctive relief requiring reinstatement of plaintiff could negate or at least substantially mitigate the adverse effects of one of the "irreparable harms" the plaintiff fears—the intimidation of witnesses in her ongoing litigation against defendants—by signaling to employees that defendants may not legally fire them for offering to testify in a discrimination suit. See Holt v. Cont'l Group, Inc., 708 F.2d 87, 90-91 (2d Cir.1983) (holding that a district court may in some circumstances grant a preliminary injunction ordering that a defendant in a discrimination case reinstate a plaintiff employee who has already been fired if court finds that defendant's firing of plaintiff presents risk of intimidating other employees from testifying against defendant). Under these circumstances, the typical concerns requiring a dismissal on mootness grounds do not apply. Compare, e.g., United States v. Ciccone, 312 F.3d 535, 544 (2d Cir.2002) (dismissing an appeal as moot because "it would be impossible" for the Court "to grant any effectual relief whatever" to the appealing party (emphasis added) (citation and internal quotation marks omitted)).⁴ We therefore hold that the instant appeal is not moot.

We turn next to the merits of plaintiff's request for preliminary injunctive relief. District courts may ordinarily grant preliminary injunctions when the party seeking the injunction demonstrates (1) that he or she will suffer irreparable harm absent injunctive relief, and (2) either (a) that he or she is likely to succeed on the merits, or (b) "`that there are sufficiently serious questions going to the merits to make them a fair ground for litigation, and that the balance of hardships tips decidedly in favor of the moving party.'" No Spray Coalition, Inc. v. City of New York, 252 F.3d 148, 150 (2d Cir.2001) (per curiam) (quoting Otokoyama Co. v. Wine of Japan Import, Inc., 175 F.3d 266, 270 (2d Cir.1999)). Such relief, however, "`is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.'" Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (emphasis and citation omitted). Where there is an adequate remedy at law, such as an award of money damages, injunctions are unavailable except in extraordinary circumstances. See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 381, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992); see also Metro. Opera Ass'n, Inc. v. Local 100, Hotel Employees & Rest Employees Int'l Union, 239 F.3d 172, 177 (2d Cir.2001). The district court has wide discretion in determining whether to grant a preliminary injunction, and this Court reviews the district court's determination only for abuse of discretion. See Green Party of N.Y. v. N.Y. State Bd. of Elections, 389 F.3d 411, 418 (2d Cir.2004); Columbia Pictures Indus.,...