Stewart v. U.S. I.N.S.
| Decision Date | 13 May 1985 |
| Docket Number | D,No. 649,649 |
| Citation | 762 F.2d 193 |
| Parties | 37 Fair Empl.Prac.Cas. 1357, 37 Empl. Prac. Dec. P 35,273 Leroy STEWART, Plaintiff-Appellee, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Defendant-Appellant. ocket 84-6296. |
| Court | U.S. Court of Appeals — Second Circuit |
Joseph Fleming, New York City, for plaintiff-appellee.
Franklin H. Stone, New York City (Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., Jonathan A. Lindsey, Asst. U.S. Atty., New Before MANSFIELD and PIERCE, Circuit Judges and BARTELS, Senior District Judge. *
York City, of counsel), for defendant-appellant.
The United States Immigration and Naturalization Service ("INS") appeals from an order of the United States District Court for the Southern District of New York, Whitman Knapp, Judge, entered July 31, 1984, granting, in part, the motion of Leroy Stewart, an INS employee, for a preliminary injunction and directing it to pay Stewart his base salary pending the outcome of criminal proceedings against him. 591 F.Supp. 576.
INS argues that the district court lacked jurisdiction over appellee's claim of retaliatory discrimination and therefore was precluded from granting preliminary injunctive relief to appellee. In addition, INS contends that the district court erred in finding that Stewart had made an adequate showing that he would be irreparably harmed if a preliminary injunction were denied.
Stewart maintains that, pursuant to Holt v. Continental Group, Inc., 708 F.2d 87 (2d Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1294, 79 L.Ed.2d 695 (1984) and Sheehan v. Purolator Courier Corp., 676 F.2d 877 (2d Cir.1981), his claim relating to his suspension without pay was properly before the district court. He also contends that the district court correctly found the existence of irreparable harm sufficient to justify the granting of a preliminary injunction in a government employee discharge case.
We hold that the district court lacked jurisdiction over Stewart's claim relating to his suspension without pay. Moreover, even if the district court did have jurisdiction, by failing to apply the Supreme Court's holding in Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974), the court incorrectly found that he had suffered irreparable harm.
We therefore reverse the decision of the district court.
In May, 1973, Stewart began working for the INS and in August, 1976, he assumed a position as an inspector. On November 25, 1980, Stewart and two co-workers filed an administrative complaint against the INS with the Equal Employment Opportunity Commission ("EEOC") charging the INS with discriminating against them on the basis of color and national origin. They claimed that they were subjected to treatment and employment conditions and requirements that differed from those of their Caucasian co-workers, and that they were given performance ratings lower than the ratings given to their Caucasian co-workers, despite allegedly comparable performance and productivity. They also alleged that they were harassed by their superiors at the INS.
On October 5, 1983, there having been no action on his EEOC complaint alleging discrimination, Stewart and his co-workers commenced an action against the INS in the Southern District of New York. The complaint alleged discrimination on the basis of race and national origin in violation of title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sec. 2000e et seq. The complaint, generally tracking the charges made at EEOC, was limited to claims that the plaintiffs, unlike their Caucasian co-workers, had been assigned to undersirable work shifts, workplaces, and working hours, had been denied upgrading and promotion opportunities, had consistently and arbitrarily been given lower performance ratings and had been subjected to continuous harassment by their superiors. They sought an award of back pay, an upgrading of their employment status, and costs and attorneys' fees. Stewart and his co-plaintiffs In the meantime, on August 20, 1983, Stewart was arrested for conduct involving the use of his gun while off duty. 1 According to Stewart, on the evening of August 20, 1983, he left work without removing either his uniform or his gun and stopped to purchase some items in a store. Stewart was required to wear a uniform while performing inspections and was authorized, but not required, by the INS to carry a gun during the course of his inspections. Stewart claims that, upon leaving the store, he saw several individuals smoking marijuana and taking cocaine; that he "approached the group and informed them that they were in violation of the law and that they could have been arrested for taking drugs in an open street"; that he was then beaten by the individuals, who took his wallet; that upon being approached by one of the group who was holding a knife, he took out his revolver, pursued the group which had started to escape, and, when one individual stopped and turned with what appeared to be a gun in his hand, shot the individual in the leg; and that the group then fought with Stewart and took his gun. The police arrived, the individuals pressed charges against Stewart, and Stewart was arrested.
alleged that they had satisfied all conditions precedent to jurisdiction under section 706 of title VII, 42 U.S.C. Sec. 2000e-5(f)(3).
On February 6, 1984, a grand jury directed the filing of an information charging Stewart, with regard to the incident which occurred on August 20, 1983, with reckless endangerment in the second degree and assault in the third degree, charges which could result in a term of imprisonment. On February 29, 1984, the INS placed Stewart on administrative leave with full pay. However, shortly thereafter, on March 7, 1984, the day after the information was filed, the INS notified Stewart that it proposed to suspend him from duty indefinitely without pay, pending disposition of the criminal charges against him. The INS informed Stewart of his right to respond both orally and in writing to the proposal. After considering Stewart's responses, on May 26, 1984, the INS suspended Stewart indefinitely from duty and pay, pending disposition of the criminal charges against him.
On June 14, 1984, Stewart filed a petition with the Merit Systems Protection Board ("MSPB"), appealing the suspension without pay. A hearing was scheduled for August 7, 1984.
Thereafter, on July 11, 1984, Stewart applied to Judge Knapp in the pending title VII action for the preliminary injunction at issue which he sought on the ground that the INS' placement of him on administrative leave because of the pending criminal investigation and its May 26, 1984 suspension of him without pay after the filing of the information against him were in retaliation against him for having brought the discrimination charges against it. Stewart stated that the INS had "discriminat[ed] against [him], subjecting [him] to retaliatory harrassment [sic], continuing [his] indefinite suspension without pay, or otherwise affecting [his] employment status." According to Stewart, the INS' action caused him irreparable harm by degrading and humiliating him in the eyes of his peers, family, and community, thereby damaging his reputation and self-esteem, by causing his family to suffer undue hardship, and by preventing him from providing adequate food, clothing, and shelter for his family. Stewart sought an order from the district court directing the INS to restore him to his position as an immigration inspector with full pay and benefits retroactive to May 26, 1984, the effective date of his suspension without pay.
The INS responded to Stewart's motion with several affidavits and declarations by INS supervisory personnel. According to the INS, the decision to suspend Stewart was totally nondiscriminatory and was based solely on legitimate concerns. Moreover The district court found, with reference to the original administrative action filed with the EEOC against the INS in November, 1980, alleging discrimination in employment, that Stewart had exhausted his administrative remedies. In addition, the district court found that Stewart had suffered irreparable harm sufficient to justify preliminary injunctive relief, and also stated that irreparable harm might result if the INS suspension were upheld, since it could possibly have a chilling effect on the filing of complaints alleging discrimination. Finding further that Stewart had demonstrated a sufficiently serious question going to the merits to make it a fair ground for litigation, and concluding that the balance of hardships was in Stewart's favor, the district court, in an order dated July 31, 1984, granted Stewart's motion in part and ordered the INS to pay him his full salary with benefits until the criminal charges pending against him were resolved. The court did not, however, grant Stewart's motion for reinstatement.
the INS stated that the criminal complaint against Stewart provided evidence sufficient to form a reasonable belief that he had committed a crime for which a sentence of imprisonment could be imposed and that Stewart's alleged misconduct related directly to his employment, thereby making Stewart's suspension valid based upon section 2235 of the INS' Administrative Manual and 5 U.S.C. Sec. 7513(a), (b). In addition, the INS enumerated other instances in which INS officers with criminal charges pending against them had been similarly suspended.
Subsequently, on August 7, 1984, the INS appeared before the MSPB and requested that the hearing scheduled for that day be terminated. Preserving his right to refile, Stewart then moved to dismiss his MSPB appeal, which motion was granted. At some point during this sequence of events, the criminal charges against Stewart were dismissed and the INS placed Stewart back on its payroll. According to Stewart, however, the INS has instituted administrative...
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