Stewart v. United States INS

• Decision Date: 31 July 1984
• Docket Number: No. 83 Civ. 7322 (WK).,83 Civ. 7322 (WK).
• Citation: 591 F. Supp. 576
• Parties: Leroy STEWART, Omar Yusef and Rugilio Belgrave, Plaintiffs, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Defendant.
• Court: U.S. District Court — Southern District of New York

591 F. Supp. 576

Leroy STEWART, Omar Yusef and Rugilio Belgrave, Plaintiffs, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Defendant.

No. 83 Civ. 7322 (WK).

United States District Court, S.D. New York.

July 31, 1984.

Joseph Fleming, New York City, for plaintiffs.

Office of the U.S. Atty., S.D.N.Y. by Franklin H. Stone, Asst. U.S. Atty., New York City, for defendant.

MEMORANDUM & ORDER

WHITMAN KNAPP, District Judge.

Plaintiffs have brought this action pursuant to Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., alleging that their employer, the United States Immigration and Naturalization Service ("INS") has discriminated against them on the basis of their color and national origin. Before us now is a motion by one of the plaintiffs, Leroy Stewart (hereinafter "plaintiff" or "Stewart") for a preliminary injunction to prevent defendant "from discriminating against the plaintiff, subjecting the plaintiff to retaliatory harassment, continuing plaintiff's indefinite suspension without pay, or otherwise affecting the plaintiff's employment status, and directing that plaintiff be restored to his position as an Immigration Inspector with full pay and benefits retroactive" to the date on which he was suspended without pay. Although the question is a close one, we believe that plaintiff is entitled to a temporary injunction granting part of the relief he requests, he having shown (a) irreparable injury (b) serious questions going to the merits and suitable for litigation, and (c) a balance of hardships tipping decidedly in his favor.

FACTUAL BACKGROUND

On November 25, 1980, Stewart and his co-plaintiffs filed an administrative complaint charging defendant with discrimination on the basis of color and national origin. On October 4, 1983, no action having been taken in the administrative proceeding, plaintiffs filed this lawsuit. According to Stewart, he had been warned that such action would earn him reprisals by defendant. He now alleges that action taken by defendant on May 26, 1984 was indeed such retaliation, and asks us to enjoin it.

On August 20, 1983 plaintiff was employed by defendant, as he had been for the previous eleven years. Plaintiff was required to wear a uniform while on the job, and was authorized—although not required—to carry a gun (which he did). On the night of August 20, 1983 plaintiff left work without removing either his uniform or his gun — neither of which he was required to remove — and proceeded to a friend's house. At approximately 10:00 p.m. he headed home, stopping on his way at a deli. On leaving the deli he noticed several youths taking drugs on the street. He approached them, reprimanded them for engaging in unlawful and socially destructive behavior, and told them to leave his neighborhood. He was rewarded for this civic-minded activity by being beaten and robbed by the youths, at least one of whom was armed. Picking himself up despite his wounds, plaintiff drew his gun, gave chase and fired at the youths who were by then approximately a block away, hitting one in the foot or leg. The youths then turned on plaintiff, again beating him and taking his gun. They remained on the scene and complained to the police, who arrived shortly. Plaintiff could not provide identification upon the officer's demand, the youths having taken and still being in possession of his wallet; he was thereupon arrested and taken to the police station.

At the station plaintiff telephoned his immediate superior at the INS, Thomas Spellman, and requested that he come to identify him to the police — since he still had no identification — and to vouch for his good character and good work record, so that reasonable bail could be set. Spellman telephoned his own supervisor, James Jasey, who, according to plaintiff, told Spellman to "keep out of it." No identification or character support was given.

Eventually the matter was presented to a grand jury which was requested to return an indictment charging plaintiff with assault in the second degree and reckless endangerment in the first degree, both felonies. The grand jury refused this request and instead directed the filing of a prosecutor's information charging the misdemeanors of assault in the third degree and reckless endangerment in the second degree.¹ If convicted, plaintiff could be sentenced to a term of imprisonment.

On August 22, 1983, plaintiff was removed from his job and placed on "desk assignment." On May 26, 1984 — after the commencement of this action — plaintiff was informed that he was suspended without pay until the disposition of the criminal charges. These charges are still pending against plaintiff; and he remains suspended, indefinitely to anyone's knowledge, without pay.

IRREPARABLE INJURY

The injury claimed by plaintiff is not only the loss of his income during his suspension without pay (which money would ultimately be refunded to him in the event of his success on the merits of his discrimination claim). In addition, he has alleged disruption of his family life and an inability to provide for his wife and children.

This seems to us an injury which is "irreparable" in the traditional sense of the word. The Government, however, contends that the Supreme Court in Sampson v. Murray (1974) 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166, establishes a peculiarly drastic standard for irreparable injury in all cases dealing with termination of employment, including Title VII and other civil rights actions. Although neither party has cited us to any relevant case in this Circuit or this District, we are aware that our Court of Appeals has recently rejected defendant's position in a Title VII case stating—albeit without reference to Sampson — that "in many cases the effect on the complainant of several months without work ... will constitute harm that cannot adequately be remedied by a later award of damages." Sheehan v. Purolator Courier Corp. (2d Cir.1981) 676 F.2d 877. One example of such a case given by another Judge in this District in a Title VII action is "the inability of a plaintiff to provide for his children," Aguilar v. Baine Service Systems, Inc. (S.D.N.Y.1982) 538 F.Supp. 581, 584 — precisely the harm alleged by plaintiff here.

We have discovered, through our own research, one case in which our Court of Appeals has held that Sampson precludes a finding in a Title VII case of irreparable injury from mere loss of income. Holt v. Continental Group, Inc. (2d Cir.1983) 708 F.2d 87. Neither that nor any other opinion of our Court of Appeals of which we are aware, however, has actually analyzed the Sampson opinion or its applicability to Title VII cases.² We think that such an analysis would not in fact support defendant's position.

Sampson dealt with allegations of lack of procedural due process and discharge in violation of Civil Service regulations. No claim of discrimination, under Title VII or otherwise, was there invoked. Although the language of that case, relied upon by defendants, is admittedly broad, we note that Justice Rehnquist did not set forth a blanket rule that loss of income or reputation could not be the source of irreparable injury. Rather, he was at great pains to point out that the case before him involved Civil Service Regulations, but for which plaintiff — a probationary employee, unlike plaintiff here — could have been discharged with no showing of cause. The two references to the inadequacy of loss of income or reputation as a basis for a finding of irreparable injury, on which defendant heavily relies, both refer to "this type of case," 415 U.S. at 90, 92, 94 S.Ct. at 952, 953, which we think may fairly be taken to refer to the specific factual circumstances before the Court. This assumption, we think, is bolstered by the Court's reiteration of those circumstances in the very footnote relied upon by defendants:

We have held that an insufficiency of savings or difficulties in immediately obtaining other employment — external factors common to most discharged employees and not attributable to any unusual actions relating to the discharge itself — will not support a finding of irreparable injury, however severely they may affect a particular individual. But we do not wish to be understood as foreclosing relief in the genuinely extraordinary situation. Use of the court's injunctive power, however, when discharge of probationary employees is an issue, should be reserved for that situation rather than employed in the routine case.

415 U.S. at 92, n. 68, 94 S.Ct. at 953, n. 68 (emphasis supplied).

The above-quoted language provides yet another reason why the holding of Sampson should not apply to Title VII cases where, as here, allegations are made that employment action was taken in retaliation for complaints of discrimination. In such a situation, it cannot be said that the injury — removal of plaintiff from his position without pay, as in the situation at bar — is an "external factor common to most discharged employees and not attributable to any unusual actions relating to the discharge itself." In fact, quite the opposite is true. Both our Court of Appeals and at least one court in this District have differentiated for purposes of preliminary relief between cases which allege retaliatory action and those which do not. Holt v. Continental Group, Inc., supra, 708 F.2d at 91; Cuesta v. State of N.Y. Office of Court Admin. (S.D.N.Y.1983) 571 F.Supp. 392, 394. We note further that these cases have remarked upon the possibility of a kind of irreparable injury to the community at large which stems directly from discriminatory retaliation: namely, the possibility that others will fail to assert their rights or to come forward on behalf of a plaintiff, for fear that they too may be subject to unfavorable action. We think that, although plaintiff has alleged no such fear, such an occurrence is well within the realm of possibility given the circumstances of plaintiff's arrest and the "hand...