De Novellis v. Shalala

• Decision Date: 22 November 1996
• Docket Number: No. C.A. 96-11655.,C.A. 96-11655.
• Citation: 947 F.Supp. 557
• Parties: Vincent DE NOVELLIS, Plaintiff, v. Donna E. SHALALA, Secretary, Department of Health and Human Services, Defendant. Paul H. KELLEY, Plaintiff, v. Donna E. SHALALA, Secretary, Department of Health and Human Services, Defendant. Laurentina JANEY-BURRELL, Plaintiff, v. Donna E. SHALALA, Secretary, Department of Health and Human Services, Defendant.
• Court: U.S. District Court — District of Massachusetts

947 F.Supp. 557

Vincent DE NOVELLIS, Plaintiff, v. Donna E. SHALALA, Secretary, Department of Health and Human Services, Defendant.

Paul H. KELLEY, Plaintiff, v. Donna E. SHALALA, Secretary, Department of Health and Human Services, Defendant.

Laurentina JANEY-BURRELL, Plaintiff, v. Donna E. SHALALA, Secretary, Department of Health and Human Services, Defendant.

No. C.A. 96-11655.

United States District Court, D. Massachusetts.

November 22, 1996.

Jodie Grossman, Boston, MA, for Vincent De Novellis, Paul H. Kelley.

Phyllis Fine Menken, Charlestown, MA, for Laurentina Janey-Burrell.

John A. Capin, Asst. U.S. Atty., George B. Henderson, U.S. Atty's Office, Boston, MA, for Donna E. Shalala.

GERTNER, District Judge.

MEMORANDUM RE: STAY PENDING APPEAL

I. BACKGROUND

Three related cases have been consolidated and are now before me.¹ All three involve long-time, management-level employees of the Administration for Children and Families ("ACF"), a division of the federal government's Department of Health and Human Services ("HHS"): Vincent De Novellis, Paul Kelley, and Laurentina Janey-Burrell.

The plaintiffs are all employees in the protected age group: Janey-Burrell is fifty-eight years old, Paul Kelley is sixty, and Vincent De Novellis, sixty-eight. Each is facing imminent, adverse employment action, either in the form of demotions to non-supervisory positions with a loss in pay, or reassignment to positions a considerable distance from their homes, or "voluntary" retirement. Each has filed administrative claims challenging these actions on the grounds of age discrimination under the Age Discrimination Act ("ADEA"),² and failure to abide by the Civil Service Reform Act ("CSRA").³ Janey-Burrell and De Novellis make an additional claim: that the instant employment action is itself in retaliation for prior EEO complaints. The plaintiffs have filed complaints for preliminary injunctive relief to enjoin these actions, pending administrative review of their various claims.

On September 30, 1996, Judge Patti B. Saris denied preliminary injunctive relief and the plaintiffs have appealed. In the interim, they have sought a stay of Judge Saris' ruling, which necessarily means enjoining the adverse employment action, pending appeal pursuant to Rule 62(c), Fed.R.Civ.Pro.

After additional briefing and argument, I hereby DENY the motion for stay pending appeal brought by De Novellis and Kelley. I hereby GRANT the motion for stay pending appeal brought by Janey-Burrell, and ENJOIN the government's directed reassignment with respect to Janey-Burrell.

II. INTRODUCTION

The centerpiece of Janey-Burrell's complaint is retaliation for protected activity. Janey-Burrell maintains that the same supervisor who was principally responsible for the decision at issue here was the very one against whom she filed two EEO complaints. In addition to the disruption occasioned by this transfer/demotion, there is, she claims, an additional and irreparable harm: Transfer or demotion will make it difficult if not impossible for her to continue to litigate her claims, and could well chill the protected activities of others.

As discussed below, cases involving claimed retaliation for engaging in protected opposition activity, like cases raising obstruction of justice, trigger concerns different from those present in the ordinary discrimination case. This genre of claims goes to the integrity of the grievance process, namely, that meritorious discrimination complaints will be discouraged.

I find both a likelihood of success on the merits with respect to that claim and a significant risk of irreparable harm if this Court does not step in to preserve the status quo.

III. JURISDICTION

As a preliminary matter, the government challenges this Court's subject matter jurisdiction because plaintiffs, it claims, have not exhausted their administrative remedies.

To be sure, the plaintiffs have not exhausted their administrative remedies with respect to their challenge to the adverse decisions at issue here. However, that failure does not preclude jurisdiction for preliminary injunctive relief, designed to preserve the status quo pending exhaustion of those remedies. Preliminary equitable relief is unquestionably available under the CSRA, Sampson v. Murray, 415 U.S. 61, 93-94, 94 S.Ct. 937, 954-55, 39 L.Ed.2d 166 (1974); under the ADEA, 29 U.S.C. 626(b), Gately v. Commonwealth of Mass., 2 F.3d 1221, 1224-25 (1st Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1832, 128 L.Ed.2d 461 (1994); and for retaliation claims under Title VII, 42 U.S.C. § 2000e-16. See Sheehan v. Purolator Courier Corp., 676 F.2d 877, 887 (2d Cir.1981); Bailey v. Delta Air Lines, Inc., 722 F.2d 942, 944 (1st Cir. 1983).

IV. STANDARD FOR STAY PENDING APPEAL

The standard for a stay pending appeal, set out by the Supreme Court in Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 2119, 95 L.Ed.2d 724 (1987), is as follows:

the factors regulating the issuance of a stay are ...: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.

Id. (citations omitted). See Rivera-Vega v. ConAgra, Inc., 879 F.Supp. 165, 166 (D.P.R.), aff'd 70 F.3d 153 (1st Cir.1995). Apart from heightening the required showing on the "success on the merits" prong from "likely" to "strong," this standard is in almost all relevant respects the same as the standard for preliminary injunction. See Gately, 2 F.3d at 1224.

In effect, given the obvious similarity of the preliminary injunctive standard and the stay standard, this court is being asked to reconsider Judge Saris' thoughtful analysis. (To be sure, the stay sought here covers a more limited period than did the injunction sought before Judge Saris — namely, a stay pending the parties' appeal of the denial of preliminary injunctive relief to the First Circuit).

A. Janey-Burrell

1. Likelihood of Success on the Merits

The ACF administers human service programs including Head Start and Aid to Families with Dependent Children. Beginning in 1993, Vice President Gore implemented a National Performance Review of federal government, designed to streamline the government. At the same time, HHS, of which ACF is a part, had begun its own reorganization program, likewise intended to scale down the size of its operation. The National Performance Review was formally completed in 1996; results were announced in the Federal Register on April 24, 1996. In HHS, each Region was to configure its own reorganization. By June of 1996, reorganization of the Boston office of ACF was implemented.

In Boston (Region I), as of September, 1994, there were eight grade 14 ACF employees designated managers. The reorganization ultimately required that five of these mid-level managers, including plaintiffs, all grade 14 employees who are more than forty years old, be reassigned to existing grade 14 supervisory positions currently vacant in larger regions, concededly remote from their homes (including San Francisco, Dallas, and Chicago). The plaintiffs are all long-time residents of the Boston area. In lieu of reassignment to offices outside Region I, plaintiffs were given the difficult choice between "voluntarily" retiring or "voluntarily" accepting demotions to non-supervisory grade 13, step 10 positions, in order to stay in Boston; accepting such a demotion would entail an approximately $13,000 cut in salary.

At least one grade 14 manager was made a "Goal Leader": a status that apparently allowed one to keep a supervisory position in Boston, without demotion or loss in pay.⁴

Janey-Burrell alleges that the decision to reassign her was made for unlawful reasons, namely: 1) in retaliation for her EEO complaints against one of the decisionmakers, Hugh Galligan, ACF Regional Administrator for Region I; and 2) was a violation of the procedural standards set forth by the Federal Personnel Manual.

Judge Saris agreed, but only as to the latter point. HHS Instruction 335-1-30 reads in pertinent part: "Reassignment will not be made to coerce employees into resigning or retiring." The government does not dispute the claim that reassignment for the purpose of "attriting" employees to meet staff ceilings would be unlawful. See Order Re: Application For Preliminary Injunction, at p. 14, CA # 96-11655 (September 30, 1996) (Saris, J.). Judge Saris concluded that the circumstances of this reassignment/demotion met the likelihood of success on the merits standard with respect to the plaintiffs' claims that the primary purpose of the reassignments was attrition, and thus unlawful. See id. at 14-15.

The Court ruled against Janey-Burrell, however, on her claim of retaliation, holding that she failed to demonstrate a causal connection between her forced reassignment/demotion and her having brought discrimination claims against her ACF superiors. See id. at 9-10; see also Fennell v. First Step Designs, Ltd., 83 F.3d 526, 535 (1st Cir.1996) (to establish prima facie retaliation, plaintiff must show causal connection between protected conduct under Title VII (or its equivalent) and the adverse employment action).

The Court found that after Janey-Burrell had filed EEO claims, a protected activity under Title VII, she was then assigned to what appeared to be a good, high-status position, suggesting that she was not being retaliated against.⁵ This position, however, was a temporary one; she was assigned to it — rather than to a "Goal Leader" position which would have protected her job.

The relevant retaliation, however, is the current retaliation: being reassigned to San Francisco after almost twenty-five years of outstanding service as a federal employee at HHS in Boston. I find that this reassignment to San Francisco, under the...