Petition for Writ of Certiorari — Reshard v. Burnley

87%~1978

NO. |

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

Connie Reshard,

Petitioner,

V.

Jim Burnely, Secretary

U.S. Department of Transportation,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Connie Reshard, Esq.

700 Seventh Street,SW

No. 725

Washington, D.C.

20024

202-488-3832

Petitioner Pro Se

QUESTIONS PRESENTED

I. Is the availability of interim injunc-

tive relief or declaratory judgment during

the pendency of litigation absolutely barred

under Title VII of the Civil Rights Act

of 1964, as amended, 42 U.S.C. 2000e, et

seq., against racial harassment, discrimination

and retaliation with loss of tangible job

benefits, e.g., suspensions without pay,

discharge, verbal abuse, where the employer

knows and sanctions such acts by a supervisor.

ii. Is it reversible error that the

District Court made clearly erroneous findings

of material facts regarding the nature of

derogatory statements with racial overtones,

racial harassment, and retaliation, which

clearly are not supported by the record.

rit, The Court of Appeals clearly

erred by granting summary affirmance to

the Respondent.

TABLE OF

QUESTIONS PRESENTED

TABLE OF CONTENTS

TABLE OF AUTHORITIES iii

OPINIONS BELOW 1

JURISDICTION D

STATUTES INVOLVED 3

STATEMENT OF THE CASE 3

REASONS FOR ALLOWING THE WRIT 21

CONCLUSION 41

APPENDIX eae

CONTENTS

Order of U.S. Court of Appeals Granting

Summary Affirmance.

App. 1-4

Order of U.S. Court of Appeals Denying

Petitioner's Motion for Stay. App. 5-6

U.S. District Court Order Denying Petition-

er's Motions for Stay, Temporary Restrain-

ing Order, Preliminary Injunction and

Declaratory Relief App. 7-15

U.S. District Court Order Denying Petition-

er's Motion for Temporary Restraining

Order App. 16-18

Excerpts from 42 U.S.C. 2000-e (2), (3),

(5), (16) App. 19-23

Section 1613.203 of 29 C.F.R. Ch.XIV (1987)

App. 24-25

DOT Procedures for Processing Complaints of

Discrimination in Employment Practices,

APP. 25

ii

TABLE OF AUTHORITIES

CASES:

Albermarle Paper Co. v. Mooody,

4Z U.S. 405, 95 S.Ct. 2562,

45 L.Ed.2s 280 (1975)

Brown v. G.S.A.,

425 U.S. 820 (1976)

DeMedina v. Reinhart,

686 F.2d 997, 222 U.S.App.D.C.

371 (D.C.Cir 1982)

Denton v. Secretary of the Air Force,

483 F.2d 21 (9th Cir 19/73), cert.

denied, 414 U.S. 1146, 94 S.Ct.

900, 39 L.Ed.2d 102 (1974)

EEOC v. Anchor Hocking Corp.,

66 F.2d 1037 (6th Cir. 1981)

EEOC v. City of Janesville,

630 Fd 1254 (7th Cir. 1980)

EEOC v. Pacific Press Publishers,

935 F.2d 1182 (9th Cir. 19/6)

Firefighters Institute for Racial

Equality v. City of St. Louis,

329 F.2d S06 (8th Cir. 1977)

Garcia v. Lawn,

805 F.2d 609 (9th Cir. 1986)

Gibson v. U.S. Immigration and

Naturalization Service,

3241 F.Supp 1311 (S.D.N.Y. 1982)

Holt v. Continental Group, Inc.,

708 F.2d 8/ (2d Cir. 1983), cert.

PAGE

24

38

25

30, 32

30

30

23

28

denied, 465 U.S. 1038, 104 S.Ct.

T316, 79 L.Ed.2d 712 (1984)

iii

CASES CONTINUED

Hyland v. Kenner products Co.

10 F.E.P. 36/7 (S.D.OH 1974)

Los Angeles Department of Water and

Power v. Manhart,

38/7 F.Supp 980 (D.C.CA 1975);

435 U.S. 702, 985 S.Ct. 1370,

55 L.Ed.2d 657 (1978)

Meritor Savings Bank, FSB v. Vinson,

106 S.Ct. 2399 (1986)

Metropolitan Area Transit Comm'n v.

Holiday Tours Inc.,

959 F.2d 841 (1971)

Middleton-Keirn v. Stone,

655 F.2d 609 (5th Cir. 1981)

National Assoc. of Greeting Cards

Publishers v. U.S. Postal Service,

662 F.2d /6/ (D.C.Cir. 1976)

Parker v. Baltimore & O.R. Co.,

652 F.2d 1012 (D.C.Cir. 1981)

Payne v. McLemore's Wholesale & Retail,

654 F.2d 1130 (5th Cir. 1981),

rehearing denied, 660 F.2d 497,

cert. denied, 455 U.S. 1000, 102

S.Ct. 1630, 71 L.Ed.2d 866 (1982)

Porter v. Adams,

639 F.2d 273 (5th Cir. 1981)

Rogers v. EEOC,

454 F.2d 234 (5th Cir. 1971)

Texas Department of Community Affairs

v. Burdine,

450 U.S. 248, 101 S.Ct. 1089,

L.Ed.2d 207 (1981)

iv

PAGE

29

24, 28

24

27

31

36

30

23

37

CASES CONTINUED

Walker v. Washington,

——< 697 F.2d 541 (D.C. Cir. 1980)

(per cuiram), cert. denied, 449

U.S. 994 (1980)

Womack v. Munson,

$10 F.2d 1292 (8th Cir. 1980)

STATUTES

Title VII, Civil Rights Act of

1964, 42 U.S.C. 2000e, et seq-

5 U.S.C. 7513(a)

29 C.F.R., Ch XIV, section

1613.203

MISCELLANEOUS

DOT Procedures for Processing

Complaints of Discrimination

in Employment Practices, DOT

T000.8A, paragraph 8(a) (3)

(7-10-76)

H.R. Rep. NO. 238, 92nd Cong. 2d

Sess., 2 reprinted in 1972 U.S.

Code Cong. & Ad. News, 215/

PAGE

33, 34

31

Passim

37

38

38

32

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1987

NO.

CONNIE RESHARD,

Petitioner,

JIM BURNLEY, SECRETARY

U.S. DEPARTMENT OF TRANSPORTATION,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Petitioner, Connie Reshard, petitions

for a Writ of Certiorari to the United States

(1)

Court of Appeals for the District of Columbia

Circuit to review the order filed April

6, 1988, in Reshard v. Burnley, D.C.Cir.

No. 88 - 5035.

OPINIONS BELOW

The order of the District Court filed

January 29, 1988, in C.A. No. 87-2794 (Penn,

J.), denying petitioner's Motion for Stay,

Temporary Restraining Order, Preliminary

Injunction, and Declaratory Relief in favor

of Defendant and Respondent, is unreported

and reproduced in the Appendix filed herein

("APP."), at 7-15.

The Order of the Court of Appeals fiied

April 6, 1988, in No. 88 - 5035 (Robinson,

S., Silberman, L., and Williams, S.), granting

Respondent 's Motion for Summary Affirmance

is unreported and reproduced at App. 1-4.

JURISDICTION

This Court's jurisdiction is invoked

pursuant to 28 U.S.C. 1254(1).

The order sought to be reviewed was

entered on April 6, 1988.

STATUTES INVOLVED

Pertinent portions of Title VII of

the Civil Rights Act of 1964, as amended,

42 U.S.C. 2000e, et seq. (1982) are reproduced

at App. 19-23. Section 7513, 5 U.S.C. is

quoted in the text. [section 1613.203 of

29 C.F.R. Ch.XIV (1987) and paragraph 8(a) (3)

of DOT Procedures for Processing Complaints

of Discrimination in Employment Practices,

DOT Order 1000.8A, (7-10-76) are reproduced

in the App. at 24-25]

STATEMENT OF CASE

Petitioner Connie Reshard ("Reshard"),

a black female, was hired by the U.S. Depart-

ment of Transportation, Office of the Secretary

Office of the Assistant Secretary for Policy

and International Affairs (air transportation),

on September 6, 1977 as an Economist, G.S.

(3)

0110 - 11. Reshard has an advanced degree

in Economics.

In August 1981, after Reshard began

law school in the evening program at Georgetown

University Law Center, her first and second

level supervisor, Edward Oppler, undertook

certain harassment tactics against Reshard

because he believed that law school was

too ambitious an undertaking for a Black

person. He would check-up on uer when she

was on leave, questioned her ability to

do her job, be a single parent and attend

law school.

While on leave with her sick son on

March 15, 1982, Mr. Oppler and, at his in-

struction, a colleague telephoned Reshard

at home to give her one last chance to come

in and attend an impromptu meeting which

was being covered by Edward Robinson. When

Reshard raised the issue with Oppler, he

withdrew a pending promotion to the G.M.

14 on March 16, 1982, Ic had just been

[4]

=

resubmitted to the Office of Personnel after

an administrative delay (11/81 - 3/82) on

or about March 1, 1982. His reasons for

this act was that my job performances had

deteriorated because of law _ school. My

race was the reason.

Another factor played a role. Reshard

had raised concerns about her work assignments

being given to or taken credit for then,

by Rosalind Ellingsworth, a white consultant

with only a high school diploma. (G.S.

14) She was being trained to become a G.M.

- 15 supervisor in our unit.

Regarding the promotion, I complained

to Mr. Oppler's superior and to senior offi-

Cials, but sitll the promotion was delayed

until November 1982. As a result of the

promotion issue, the job situation worsen

and never recovered. A Black person could

not raise such issues. My white peers did,

and they were accommodated with joint foreign

travel along with Ellingsworth; Joint arrange-

[5]

ments for promotion to G.M. - 15 for Edward

Robinson and Ellingsworth. She was made

permanent in May 1984 at G.M. - 15, and

became my official supervisor. Robinson's

promotion soon followed.

Although part of the job function was

the negotiation of transportation treaties,

all my white peers conducted negotiations

in foreign countries, but I was not allowed

to travel. Some choice assignments were

directed from me to others, and myparticipation

was carefully conrolled. Mr. Oppler created

an appearance that this discriminatory treat-

ment was due to my poor job performance,

in one way, by co-authoring nearly all of

my work regardless of the degree of his

contribution. Later, I would learn that

Ellingsworth and Oppler actually told senior

officials that I could not do my job although

there was no legitimate basis for their

Statements. These actions were based on

racial discrimination and harassment. Ellings-

[6]

worth attempted to have me transferred to

another unit in 1984.

Between late 1984 and March 1985, virtu-

ally all of the major countries assigned

to me were given to a white male, G.M. -

L2, Edward Wilbur, despite the fact that

I had done an exceptional job, especially

with Japan. I considered a reassignment

and was forced to seek one because of an

escalation in harassment from my supervisors,

on April 14, 1985.

The reassignment was temporary in order

to determine whether we liked each other.

Immediately, Director Joe Canny told me

I could "camp out"' in the storage room

for an office. I was not wanted because

my former supervisors black listed me.

In June 1985, I applied for a G.M.

- 15 supervisory position under Oppler and

Ellingsworth, but I was not selected and

told that I did not rank high enough to

be referred for consideration. The candidate

(7 J

a

selected had no prior experience in treaty

negotiations and less formal education.

I had just graduated from law school in

May 1985. I had good job evaluations, above

the minimum fully meets requirements, and

I had broad overview of economic regulation

of interstate transportation as well.

In August 1985, Ellingsworth and Oppler

would use the performance based merit system

to effectuate racial discrimination. I

would receive a substantially lower rating

and certain due process violations occurred.

My temporary job was deliberately excluded

in the rating that covered August 1984 -

July 31, 1985. Salary increases are based

on these ratings and promotions or lateral

transfer require a current valid ienceise!

for consideration for a job in the merit

System for managers in G.M. 13 - G.M. -

14. Despite my protestations through oral

and written memoranda to my _ supervisors,

Office of Personnel, and even to Assistant

[8]

Secretary Matthew Scocozza, no relief was

granted and the appraisal was placed in

my personnel folder.

Because I was not wanted in Joe Canny's

office, I sought to return to my permanent

job; I was not allowed to do so. Instead,

I had to interview throughout the Office

cf the Assistant Secretary fo Policy and

International Affairs, just as if I were

a new hire. No unit would take me. As

a result, I was assigned to the immediate

staff of the Assistant Secretary Scocozza

in January 1986, a more prestigious assignment

on the special projects staff. This was

resented by many staff, including Cindy

Burbank who was my peer on the staff and

new supervisor. For example, Canny's office

requested my signature approval before Canny

rather than the reverse which was customary

for the higher level office. I became Bur-

bank's assistant and was given no major

assignment until May 1986, a position on

[9]

Secretary's Dole's task force on the national

air space plan by Scocozza. Deputy Assistant

Secretary for Budget Raymond Karam was the

chair of the group and would not take me.

My professional reputation had been impugned

because of my race.

Burbank wanted me transferred because

she did not consider a Black superior enough

for the position. My job evaluation criteria

and assessment for 1986 (August 1985 - July

31, 1986) would be conducted in secret by

Burbank and Canny, then handed to me when

it was due in the personnel office in September

1986. I refused to sign it and personnel

Chief, Vicki Novak, would extend the review

period to December 31, 1986. During this

period, Patrick Murphy, the new director

and my new supervisor beginning in August

1986 would not’ give me any work to do during

this period. In November, he advised that

I would be transferred to the Transportation

and Trade unit. He too did not want a black

on his staff. Again aT to Scocozza,

Director of Personnel Diana Ziedel and Secretary

Dole. Meanwhile, I had been physically

moved out by Murphy. I complied and continued

the protest. I complied with Bruce Butterworth

who was to be. my new supervisor, when he

requested that I complete new performance

standards on December 8, or forfeit prior

approved leave for the following day to

appear in court, not knowing that he was

withholding a memo for me from. personnel

authorizing my transfer to his division

on December 14 and giving me ninety days

from that time to be evaluated retroactively

for the August 1985 - July 31, 1986 period.

When I continued to object, I was threatened

with discipline and later given a letter

of warning on December 18, 1986, covering

failure to meet and communicate between

December 11 and i2. _I was not yet officially

on his” staff. I renewed contact with an

equal employment counselor on December 18,

1986. I had consulted counselors in 1984

[11]

and 1985.

The employment relationship steadily

deteriorated. It was extremely stressful

and humiliating. I was asked to do legal

analysis and, in return, I asked for a small

stipend to my salary in recognition of the

J.D. and enlargement of my job functions.

I was told that I was compelled to do the

work and I could leave. I was given assignment

by a peer and I was given itemized numeric

calculations as if I were a G.S.- 9. My

name was listed on division rosters at the

bottom after the lowest level employee.

Work submitted for typing was not returned

for review, but issued with errors or my

name would not be reflected as the author.

I sustained verbal abuse from Butterworth.

I was given the same assignment as a peer,

creating my embarassment when I _ contacted

industry persons or other agencies. Butter-

worth gave assignments deliberately with

impossible deadlines so I would have to

[12]

ask for an _ extension. In order to make

out a case of excessive leave use, he delib-

erately falsified my leave use on two occasions

in December 1986 and January 1987. He refused

to change one of them, despite the fact

that he did not report to work on the day

in question, and did not correct it until

June. This account demonstrates the collective

nature of harassment directed to me because

of my race and in retaliation.

Specifically, about the end of January

1987, while attending a staff meeting, Butter-

worth compared my ability to perform an

assignment on competitiveness in trade,

by stating that may be I could do the job

because may be I was as good as Dennis Marvich,

a white economist, G.M. - 13. I was embarassed

and humiliated in front of the _ staff. A

request for an apology in private was ignored.

In protest, I did not attend staff meetings

which were more social events than the actual

conducting of work.

A few days after my exit interview

with the equal employment counselor ended

informal settlement of my complaints, I

received a second letter of warning on March

10, 1987, for failure to attend staff meetings

and to perform legal work. I had actually

completed one legal task and asked to discuss

the inclusion of legal work. The outcome

was take it or leave.

On March 18, 1987, I filed a complaint

with DOT, setting forth these facts contained

here. After the complaint was accepted

in April, I would be threaten with discharge

if I did not accept DOT's proposed resolution

on the job evaluations, by an Office of

Civil Rights staff.

In June 1987, the Office of Personnel

withdrew the retroactive job evaluation

but insisted that I accept a six month review

for 1987. Past efforts to agree by stipulation

between the parties was not accepted by

DOT. On June 16, 1987, I received a letter

of reprimand incorporaf ing the two letters

of warning. The staff meeting issue and

failure to perform an assignment in which

I had actually completed were cited. On

June 25, 1987, I responded to the letter

of reprimand, again explaining the _ staff

meeting incident. I attached a copy of

the discrimination complaint. On or about

July 20, I attempted to discuss the issues

in the reprimand with Director Arnold Levine.

He declined, stating that he had not seen

it. I gave him a copy.

On July 20, 1987, I met with Assistant

Secretary Scocozza to seek permission to

apply for a G.M. - 15 trade policy analyst

position, which had been designed for Florie

Liser, a black recruited by Butterworth

in February 1987. A job evaluation no more

than one year old is a standard requirement

for vacancy in the merit’ system. I have

not had one since 1984. I raised the issues

in the letter of reprimand and the harassing

work environment. Scocozza agreed that

the staff meeting incident constituted miscon-

[15]

rl

duct by Butterworth and promised to correct

the various problems. I was allowed to apply

for the trade position and used the 1984 file.

Only Liser and I applied. I was never

seriously considered even though I am the

more qualified candidate. I was not even

notified of the selection on August 3, 1987,

but inquired on August 17. No explanation

was given despite my superior legal and

economic expertise. I had been discriminated

against in retaliation for filing a complaint.

I amended my complaint on August 17 and

asked Secretary Dole to intervene. She

referred me to the discrimination process

on August 25, 1987. I was emotionally devas-

tated and took about 11 days of sick leave

in early September. I was physically ill and

humiliated. Butterworth asked for a doctor's

slip, that I provided to Levine who told

me I would be sorry I had not cooperated

with their arrangements since December 1986.

When I took sick leave during the last

(16)

ete encanta

week of September, I was placed on restrictive

leave policy even though I[ had not taken

vacation leave, without notice of a change

in the general policy. On September 30,

Levine was supposed to give me notice but

did not because I left the office when the

day ended at 5:35. I had no knowledge of

the new policy when I left with a stress

headache. I was placed on absence without

leave for the next two days. On October

5, I asked Levine to meet with Butterworth

and Scocozza in order to call anend to the

state of affairs. I was suspended on October

6, 1987 for failure to attend staff meetings.

I requested leave for October 7, in order

to prepare a response and was again placed

on absence without leave.

In response to the rapidly deteriorating

situation, I filed this civil action in

United States District Court on October

a>. 1987; racial discrimination, harassment

/

and retaliation under 42 U.S.C. 2000e-16,

et seq. On October 19, 1987, I moved for

interim injunctive relief to enjoin DOT

from continuing Systematic and deliberate

harassment from December 1986 forward.

Immediately on October 21, DOT proposed

to suspend me for 14 days. All of the alleged

infractions had occured by October 7, except

the staff meeting issue. Butterworth claimed

rude and disrespectful behavior toward him

and Levine; failure to accept official corre-

spondence, violation of restrictive leave

policy mentioned above (5 days without pay),

locked myself in the office (told Butterworth

I was not in building, invertently locked

door), among other things. The district

court denied the Temporary Restraining Order

on October 21, Sua sponte.

On October 23, I responded to the proposed

14 day suspension by supplementing submissions

to the Motion for Preliminary Injunction.

I notified Butterworth and Levine. I denied or

explained the allegations. It was not rude

(18)

—————————

or disrespectful to return papers including

the invalid performance appraisal. In fact

the October 19 filing included explanations

for each of the incidents. The stress was

increasingly difficult.

On November 30, the District Court

held a hearing on the Preliminary Injunction

but tcok no action nor did it make any super-

visory comments, despite the fact DOT suspended

me for the 14 days in November.

On December 2, 1987, DOT proposed to

remove me from the competitive service for

not attending staff meetings, claiming insubor-

dination. I filed comments on December

18 through Assistant U.S. Attorney William

Dempster, repeating the staff meeting issue

and included another incident where Butterworth

gave me a complicated assignment, directing

me to get instructions on how to do it from

a peer. I asked Dempster to transmit the

decision and notified Levine of the same.

I never received the notice before it was

[19 ]

to become effective on January 4, 1988 from

Levine, the third level supervisor. [Dr.

Voyce Mack, Deputy Director and second level

supervisor did not sign any of the disciplinary

actions. He is Black. |

I asserted that I had not been removed..

DOT secured my office on January 5, and

confiscated my belongings. I was threaten

with arrest for trespass if I attempted

to enter the facility on January 6. My

long discriminatory treatment and hostile

work environment had been imposed to force

me to leave. When I did not comply, I was

fired.

The District Court still had not acted

on the preliminary injunction even though

adverse actions continued. The emotional

distress worsen. A status hearing on January

11, only resulted in a request for DOT

to explain its allegded removal, even though

it was the same issue that DOT had not denied

or explained. I supplemented my Motion

for Preliminary ss 7") Ne renewed a Temporary

20

Restraining Order, Moved for a stay and

sought declaratory judgment on these issues.

In its January 22, submission, DOT denied

the staff meeting account, stating that

I was asked to confer with Dennis Marvich.

App. at 8-9. A hearing was held that day

and on January 29, 1988, the District Court

denied all Motions. App. 7.

Petitioner filed an appeal on February

Js 1988, and moved for a mandatory stay

of the dismissal on February 8. The Court

of Appeals denied the’ stay on March 7, 1988.

Respondent's motion for summary affirmance

was granted on April 6, 1988, to which the

petition for review by writ of certiorari

is made.

REASONS FOR GRANTING WRIT OF CERTIORARI

Whether interim injunction or declaratory

judgment is available under Title VII has

lead a controversial history. The Circuits

have taken differing views and the issue

[21]

should be settled and explained by this

Court, especially since some courts are

treating Sampson v. Murray as a complete

bar to the grant of preliminary injunction

during the pendency of the litigation on

the merits. 94 S.Ct. 937 (1974), discussion

infra. Petitioner's case presents a hostile

work environment saturated with retaliation.

Here the issues include employee discharge

and other tangible adverse actionas as well

as intangible harassment which were known

and apparently sanctioned by senior officials.

Serious abuse of discretion and appli-

cation of improper principles of law governing

the hostile work environment and retaliation

were made, in part, because the findings

of material fact are not supported by the

record and are clearly erroneous, constituting

reversible error.

I. TITLE VIZ PROTECTS AGAINST EMPLOYER

HARASSMENT AND RETALIATION WHICH CAN

BE ENJOINED ON AN INTERIM AND PERMANENT

BASIS THROUGH APPROPRIATE EQUITABLE RELIEF.

Title VII of the Civil Rights Act of

1964 prohibits discrimination against any

individual with respect to his compensation,

terms, conditions, or privileges of employment,

because of such individual's race, color,

religion, sex, or national origin. 42 U.S.C.

2000e-2 (a) (1) (1982). These provisions

were extended to Federal workers under section

2000e-16. Courts have long recognized that

an offensive work environment because of

race can completely destroy the emotional

and psychological stability of the target

employee or group. Roger v. EEOC, 454 F.2d

234 (5th Cir. 1971); Firefighters Institute

for Racial Equality v. City of St. Louis,

949 F.2d 506, 514-515 (8th Cir. 1977).

This Court has recognized the hostile

work environment violates Title VII, noting

[23]

that Congress manifest an intent to include

the noneconomic psychological effects of

1/

unlawful discrimination.— Meritor Savings

Bank, FSB v. Vinson, 106 S+GEs. 2599, 2s

(1986) ; Los Angeles Department of Water

and Power v. Manhart, 435 U.S. 702; 707,

m. - 18, “SO S.Ce. 1370, 3573; 123, 35 Li Be.2e

657 (1978). In Meritor, this Court recognized

that the Equal Employment Opportunity Commission

("EEOC") administrative guidelines [on sex

discrimination] fully support the view that

harassment leading to noneconomic injury

can violate Title VII. Meritor cited EEOC

conclusion, "that Title VII affords employees

the right to work in an environment free

from discriminatory intimidation, ridicule,

and insult." Id. at 2405.

Surely a hostile work environment directed

1 For Federal employees, Title VII is the exclusive

remedy and monetary damages for emotional distress are

not permitted. [This strongly suggest that interim relief

should be available to these workers.] See Brown v.

General Services Administration, 425 U.S. 820 at 826

(1976).

[24]

eeeenieenenneeeteeimeatsinn

at Reshard because of her race and in retali-

ation is actionable under Title VII. The

seriousness of continuous violations during

the pendency of litigation before her discharge

should have been enjoined or declared invalid

by the District Court.

A. Congress Intended that

Interim Injunctive Relier Would Be

Available to Employees In Order To

Presesye the Integrity of Title

VII

Under section 2000e-5(g), 42 _U.S.C.,

“12 the Court finds that the respondent

has intentionally engaged in or is intention-

ally engaging in an unlawful practice charged

in the complaint, the court may enjoin

ee such conduct by injunction, appropriate

affirmative action; equitable relief, back

e/

~ The declaratory judgment is not specifically

mentioned but the arguments made are generally applicable.

No showing of irreparable harm is required to grant such

relief on the discharge and other issues. See Denton v.

Secretary of the Air Force, 483 F.2d 21 (9th Cir. 1973),

cert. denied, 414 U.S. 1146, 94 S.Ct. 900, 39 L.Ed.2d

102 (1974).

Nh

ui

a

pay, and reinstatement. This Court has

long recognized the equitable nature of

this remedy and the District Court must

fashion a remedy which will make the employee

whole. Albermarle Paper Co. v. Moody, 422

U.S. 405, 421, 95 S.Ct. 2362, 2373, 45 L.Ed.2d

280 (1975). The psychological effects of

a hostile work environment can only be remedied

through interim injunctive relief in order

to prevent permanent scars. Otherwise potential

litigants and witnesses in plaintiff's case

would be afraid to testify truthfully in

fear of retaliation against them. The integri-

ty of eliminating unlawful discrimination

under Title VII is compromised by the denial

of interim injunctive relief was not recognized

by the Court of Appeals in this case.

In the Title VII context, courts have

applied the traditional requirements for

injunctive relief - likelihood of success

on the merits, showing of irreparable harm,

adverse impact against others, and a showing

(26 |

en

that the relief is in the public interest.

Garcia v. Lawn, 805 F.2d 609 (9th Cir. 1986);

See Metropolitan Area Transit Comm'n. v.

Holiday Tours, Inc., 559 F.2d 841, 843 (1977).

While the District Court has discretion

in deciding whether to grant interim injunctive

relief, National Assoc. of Greeting Cards

Publishers v. U.S. Postal Service, 662 F.2d

767 (D.C. Cir. 1976), this discretion must

be guided by the overriding ameliorative

goals of Title VII, to discourage employers

from discriminating and to compensate discrimi-

nation victims as fully as_ possible. 95

S.Ct. at 2371.

B. Courts Are Divided On The

Availability Of The Interim

injunctive Device In Title VII

Cases.

Where retaliation is present, some

courts have not hesitated in granting interim

injunctive relief. Garcia v. Lawn, 805

F.2d 1400; Middleton-Keirn v. Stone, 655

F.2d 609, 612 (5th Cir. 1981); Gibson v.

[27]

U.S. Immigration and Naturalization Service,

541 F.Supp 1311 (S.D.N.Y. 1982); Manhart

v. City of Los Angeles Department of Water

and Power, 387 F.Supp 980 (D.C.CA. 1975).

These courts have found that a retaliatory

discharge or other adverse personnel action

carries a distinct rick that other employees

may be deterred from protecting their rights

under Title VII or in providing testimony

for the Plaintiff. Such risk are not specu-

lative and have been found to. constitute

irreparable harm against both private sector

and government sector defendants. In Garcia,

the Ninth Circuit stated, "retaliatory conduct

would have [adverse affect] on the exercise

of Title VII rights by other government

employees, a factor which courts and commen-

tators have deemed important in considering

the appropriateness of injunctive relief

under Title VII. citing, Holt v. Continental

Group, Inc., 708 F.2d 87, 91 (2d Cir. 1983),

cert. denied, 465 U.S. 1038, 104 S.Ct. 1316,

[28]

79 L.Ed.2d 712 (1984)(private sector case,

failure to exhaust state remedies )2/ ; Hyland

v. Kenner Products Co., id F.E&.P. 367, 3378

(S.D. OH. 1974); B. Schlei & P. Grossman,

Employment Discrimination Law 1063 (2d.

ed. 1983). 805 F.2d 1400, 1405. That court

noted, "The harm is a continuing one _ so

long as the retaliation remains in effect

Id at 1505-6. emphasis added. Every day

Petitioner's remains unemployed, the more

severe the chilling effect will be on witnesses

and potential litigants.

While the Second circuit has not directly

ruled on the issue, it has recognized that

retaliation can meet the requirements of

irreparable harm. 708 F.2d 87, 91.

The Ninth Circuit has granted interim

injunctive relief in the private sector

without a showing of irreparable harm.

3/

~ Petitioner exhausted administrative

remedies under 42 U.S.C. 2000e-16(c), because

the agency had not made a final decision after

the expiration of 180 days after the complaint.

[29]

ee

EEOC v. Pacific Pres Publishers, 535 F.2d

1182 (9th Cir. 1976). Other Circuits have

been reluctant to grant such relief in

either the private or public sector case.

See EEOC v. Anchor Hocking Corp., 66 F.2d

1037 (6th Cir. 1981); Porter v. Adams,

639 F.2d 273 (5th Cir. 1981) (decided after

Middleton-Keirn v. Stone)

The Seventh Circuit rejected a non-

retaliatory claim in an age discrimination

claim because the involuntary retirement

conferred retirement benefits, which, in

its view, removed the loss of morale or

skill factor (noneconomic loss). EEOC

v. City of Janesville, 630 F.2d 1254, 1259

(7th Cir. 1980). Quite the contrary, Reshard

has no source of income and because of

DOT's illegal conduct regarding her job

evaluations, she cannot meet that part

of the criteria for similar jobs in the

Federal service.

Some courts have distinguished those

[30]

plaintiffs who have had prior successfully

adjudicated discrimination claims, granted

interim injunctive relief for subsequent

retaliation claims. 805 F.2d 1400; 541

F.Supp 1311. This comparison should be

irrelevant because the underlying Title

VII claim is unimportant in a retaliation

case. Parker v. Baltimore & O. R. Co.,

652 F.2d 1012, 1018-19 (D.C. Cir. 1981);

Womack v. Munson, 619 F.2d 1292, 1297

(8th Cir. 1980).

The reason for the complexiity and

varying views on the availability of interim

injunctive relief is Sampson v. Murray,

415 U.S. 61. That Court held that courts

should not ordinarily interfere with internal

government processes in an employment discharge

case during the pendency of administrative

process. The case involved the discharge

of a temporary employee who had few vested

rights to Federal employment, unlike Reshard

who has ten years of service. That plaintiff

(31]

el

objected to procedures applied in her dismiss-

al. Still, some courts have applied Sampson

as if it were a per se rule againstinterim

injunctive relief in employee discharge

cases. EEOC v. Anchor Hocking Corp., 666

F.2d 1037. Other courts have taken the

better view. Garcia states, "In Title VII

Congress has clearly lessened the latitude

traditionally granted the government in

conducting its internal affairs. 805 F.2d

at 1405; See also, Gibson_v. U.S. Immigration

and Naturalization Service, 541 F.Supp 1311.

A per se rule under Sampson would preclude

all interim injunctive relief and that is

not what Congress intended under section

2000e-5. The legislative history is suppor-

tive.

"The Federal Service is an area where

equal employment opportunity is of para-

mount significance. Americans rely

upon the maxim, "government of the people,"

and traditionally measure the quality

of their democracy by the opportunity

they have to participate in governmental

processes. It is therefore imperative

that equal opportunity be the _ touch-

[32]

nate eereeeeesil

stone of the Federal System." H.R.

Rep. No. 238, 92d Cong., 2d Sess. 2

reprinted in 1972 U.S. Code Cong. & Ad.

News, at 215/.

Under the present state of the law

in the Circuits, this Court should grant

the Writ of Certiorari in order to settle

the law and give perscriptive guidance to

lower courts.

II. GRANTING SUMMARY AFFIRMANCE WAS ABUSE

OF DISCRETION.

The Court of Appeals summarily affirmed

the District Court's decision which is permitted

only if it is clear that further proceedings

will materially benefit the review. Walker

v. Washington, 627 F.2d 541, 545 (D.C.Cir.

(per curiam), cert. denied, 449 U.S. 994

(1980). Here the District Court made erroneous

findings of fact which are not’ supported

by the record, and applied the wrong law

and abused its discretion. The court's

action yields an unjust result - justice

delayed is justice denied.

[33]

a _—

4

‘

A. Erroneous Findings of Fact.

The District Court states that Mr.

Butterworth asked Ms. Reshard to confer

with Mr. Marvich. App. at 8 That statement

was made by Mr. Butterworth and Mr. Marvich

which is contained in their Affidavits first

made on January 22, 1988 on the basis of

their knowledge and belief. The record

reflects this account. With respect to

the discharge, Petitioner had a legitimate

reason for mot attending staff meetings.

The facts reflect the same for other findings

made by the District Court. Further, Reshard

repeatedly responded to DOT on all of the

allegations of misconduct; the implementation

of the adverse personnel actions underscore

the conclusion that DOT did not’ consider

her comments. These facts contrast dramatically

with the facts in Walker v. Washington,

that plaintiff refused to submit records

which were required to be conducted as a

part of his job. He had no legitimate reason

[34 ]

}

se ee

to refuse to complete them. Id. at 545.

The District Court ruled that constructive

notice of the decision to discharge had

been made. App. at 11. Petitioner did

not have actual notice before January 5,

1°88. Soth DOT and Assistant U.S. Attorney

Dempster could have delivered the notice

through Dempster. Comments were submitted

through Dempster and he discussed such arrange-

ment with Reshard.

The District Court made no findings

of fact regarding the hostile environment

with respect to the various examples’ provided

by Reshard. Retaliation was not mentioned.

App. at 7-15.

These examples of clearly erroneous

findings of fact are prejudicial and the

decision shoulc be reversed.

2. Improver Law Was Appled.

——

It has been held that to engage in

protective activity under section 2000e-

3, 42 U.S.C., bars the discnarge, suspensions,

(35)

harassment, and retaliation. Payne v. McLe-

more's Wholesale &Retail Stores, 654 F.2d

1130 (5th Cir. 1981), rehearing denied,

660 F.2d 497, cert. denied, 455 U.S. 1000,

102 S.Ct. 1630, 4/1 L.Ed.2d 866 (1982).

Reshard engaged in protective protestations

in the matter of the adverse personnel actions.

Yet, the District Court found that Petitioner

would be a disruption to the DOT. App. at

13. It was DOT whose conduct over the years

has been designed to constructively force

Reshard to resign. She did not, and the

DOT illegally discharged her. It was DOT

which attempted to force Reshard to accept

another invalid job evaluation for 1987,

prepared over six months rather than 12.

It has been placed in her personnel file.

DOT was aware of the state of affairs at

the highest level within the agency and

apparently sanctioned this conduct, by not

taking action to resolve.

Even in the absence of racial harassment

[ 36 ]

and retaliation, the discharge was inconsistent

with 5 U.S.C. 7513 (a). It states that the

decision to remove or suspend an employee

for 14 days or more can only be done, "for

such cause as will promote the efficiency

of the service." The staff meetings did

not affect Reshard's work or that of other -

employees. Her assignments from Butterworth

were submitted “n writing on most occasions.

The decision to remove was not timely, and

it was arbitrary and capricious. In fact

DOT states that Reshard disobeyed a direct

order of her supervisor. Who was harmed?

Here, petitioner engaged in protective

activity and suffered adverse actions and

treatment, and a causal connection existed

between petitioner's protestations and _ the

adverse actions. See Texas Department of

Community Affairs v. Burdine, 450 U.S. 248,

254 ne/, 101 &.CO. 1085, 16M n.7, 67 L. 8d. 26

207 (1981). The manifestation of racial

harassment and discrimination can be inferred

[37]

from these facts pursuant to sections 2000e-

3, 5, and 16, 42 u.s.c.4/ Id; App. at 19-

While employment discrimination cases

are viewed under a clearly erroneous standard,

if findings of fact are based on mistaken

impression, the Court of Appeals was

not bound by clearly erroneous’~ standard.

De Medina v. Reinhardt, 686 F.2G@ 397, ° 222

U.S.App.D.C. 371, 375 (D.C.Cir. 1982).

C. Court Abused Its Discretion.

In this case, the Court of Appeals

and the District Court’ state that they

relied on the principles for granting interim

injunctive relief set forth in Washington

Metropolitan Area Transit Comm'n. v. Holiday

Tours, Inc., 559 F.2d 841. App. at 2 and

4/ sdditionally, section 1613.203, 29 C.F.R. Ch. XIV

(1987) requires that the Secretary Burley take personal

leadershipin Title VII issues. App. at 24. The

action to discharge should have been reviewed by

him or the equal employment opportunity officer pursuant

to paragraph &(a)(3) of DOT Procedures for Processing

Complaints of Discrimination in Employment Practices,

DOT Order 1000.8A a eae p. at 25.

L

Re ee a eee eT

12, respectively. In sustaining the grant

of a Stay against permanent injunction,

that court rejected a strict probability

of success in favor of an,

"Analysis under which the necessary

showing on the merits is governed by

the balance of equities as_ revealed

through an examination of the other

three factors."" Id. at 844.

# # # #

"Generally, such relief is preventative

or protective; it seeks to maintain

the status quo pending a final determi-

nation of the merits of the suit.

An order maintaining the status quo

is appropriate when serious legal question

is presented, when little if any harm

will befall other interested persons

or the public and when denial of the

order would inflict irreparable injury

on the movant. There is substantial

equity, and need for judicial protection,

whether or not movant has shown a math-

ematical probability of success."

Id.

Here the baiance of equities must fall decidely

in favor of Reshard. Not only did she Lose

her income, she can not obtain comparable

job in the Federal service because of DOT's

clearly illegal conduct in not providing

the required current job evaluation. This

[39]

is a serious matter raised in this lawsuit.

The stress of unemployment coupled with

the distinct advantage conferred to DOT

by reducing Reshard's financial ability

to wage this litigation.

Additionally, petitioner made a substantial

showing on the merits that she was the victim

of retaliation and harassment. She applied

for injunctive relief on October 19, 1987,

long before she was discharged, and immediately

suspended for 14 days on October 21, 1987.

The closeness in time and space of the adverse

actions supports the retaliation charge.

The District Court took no action. DOT

was aware of all these issues Reshard raised

in her lawsuit. It should not be affored

protection by claiming that it would be

harmed by Reshard's reinstatement, back

pay, and an unhostile work environment free

from harassment and retaliation. The chilling

effect of the retaliatory acts on potential

complainants and witnesses in my case is

[40 ]

real and substantial. App. at 5. Accordingly,

the Court of Appeals erred by granting Respond-

ent's Motion for Summary Affirmance.

CONCLUSIONS

The availability of interim equitable

relief in Title VII cases would benefit

many persons, without flooding the courts

with an increase in lawsuits. Instead,

its availability, whether injunctive or

declaratory relief, would act as a deterrent

to employer abuse (self policing carries

an inherent conflict of interest at the

agency). More often than not, the employer

is motivated to undertake harassment, with

the intent of discouraging present and future

litigants. The law needs to be clarified

in order to correct this usage. An unjust

result in this case should be removed.

Respectfully submitted,

Dated May 23, 1988 Connie Reshard, Esq.

Washington, D.C. 700-725 Seventh St., SW

Washington, D.C. 20024

202-488-3832

[41]

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

NO. 88-5035 SEPTEMBER TERM, 1987

C.A. No. 87-02794

Connie Reshard, Filed Apr.6 1988

Appellant,

V.

Jim Burnley, Secretary,

U.S. Department of Transportation,

Appellee.

BEFORE: Robinson, Silberman and

Williams, Circuit Judges

ORDER

Upon consideration of appellee's Motion

for Summary Affirmance, and the response

thereto, it is

ORDERED by the court that the motion

be granted for the reasons stated in the

accompanying memorandum. The district court's

order filed January 29, 1988 is summarily

affirmed.

[1la

The clerk is directed to withhold issuance

of the mandate herein until seven days after

disposition of any timely petition for re-

hearing. See D.C. Cir. Rule 15.

Per Curiam

# # # #

MEMORANDUM -

The district court's decision denying

the temporary restraining order, preliminary

injunction, and stay motions is reversible

only for an abuse of discretion. See National

Audubon Soc. v. Hester, 801 F.2d 405, 407

(D.C. Cir. 1986) (per curiam). Although

this standard is deferential, the district

court's decision may be reversed if it is

based on an erroneous view of the law.

Id. Here, the district has properly applied

the law for consideration of these motions.

See Washington Metropolitan Area Transit

Comm'n v. Holiday Tours, Inc., 559 F.2d

No. 88-5035 - Reshard v. Burnley

[2]a

—— ————————OOOOeeeeeeeeeeeee—eeee—eeeEeEeeEeEeEeEOEe—=eeeeeee

No. 88-5035 - Reshard v. Burnley

841, 843 (D.C. Cir. 1977). All of the factors

were considered carefully, and an evaluation

made based on the court's review of two

days of testimony. We conclude that the

district court has not abused its discretion

in denying preliminary relief.

The district court's decision on the

motion for declaratory judgement is reversible

only for abuse of discretion as well; that

the district court has considerable discretion

to withhold such relief is clearly established.

See National Wildlife Federation v. U.S.,

626 F.2d 917, 923 (D.C. Cir. 1980). It

appears that Reshard is attempting to obtain

the remedy of a declaratory judgment as

a final adjudication on the merits. Because

the case on the merits is still pending,

however, such a determination would be pre-

mature. Therefore, such a remedy would

be inappropriate at this stage, and the

district court was well within its discretion

[3]a

to deny the motion.

Because the merits of this appeal are

so clear as to justify expedited action,

we summarily affirm the district court's

decision. See Walker v. Washington, 627

F.2d 541, 545 (D.C. Cir.) (per curiam), cert.

denied, 449 U.S. 994 (1980).

No. 88-5035 - Reshard v. Burnley

[4]a

a a

ad

ee eM 6 ta

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 88-5035 SEPTEMBER TERM, 1987

C.A. No. 87-02794

Connie Reshard, FILED Mar 7 1988

Appellant,

V.

Jim Burnley, Secretary

U.S. Department of Transportation,

Appellee.

BEFORE: Robinson, Silberman and

Williams, Circuit Judges

ORDER

Upon consideration of appellant's

Emergency Motion for Stay of Order, and

the response thereto, and appellant's Motion

to Expedite, it is

ORDERED by the court that the Emergency

Motion for Stay of order be denied. See

Wisconsin Gas Co. v. FERC, 758 F.2d 669,

674 (D.C. Cir. 1985). The arguments advanced

(Sa

No. 88-5035 - Reshard v. Burnley

by appellant in this motion will be considered

as arguments on the merits along with the

other arguments made by both parties regarding

the appellee's Motion for Summary Affirmance.

It is

FURTHER ORDERED that the Motion to

Expedite be denied. Appellant has not

demonstrated "strongly compelling"’ reasons

for expedition. See D.C. Cir. Handbook

of Practice and Internal Procedures 40 (1987).

Per Curiam

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CONNIE RESHARD,

PLAINTIFF,

V. C.A. No. 87-2794

JIM BURNLEY, SECRETARY

U.S. DEPARTMENT OF TRANSPORTATION

DEFENDANT.

MEMORANDUM ORDER

The plaintiff filed this action pursuant

to Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. s2000e et seq.

The case is now before the Court on

plaintiff's motion for a preliminary in-

junction, plaintiff's motion for a_ stay,

plaintiff's motion for temporary restraining

order, and plaintiff's motion for declaratory

judgment. The Court heard arguments. on

January ll, 1988 and January 22, 1988.

After giving careful consideration to _ the

motions, the oppositions thereto, the record

in this case, in this case, and the arguments

[7la

of counsel} the Court concludes that the

plaintiff's motions must be denied.

I

The plaintiff, who is black, contends

that she is the victim of discrimination

based on her race. She is an Economist,

GM-0110-14, in the Trade, Facilitation and

Technical Issues Division, Office of Inter-

national Transportation and Trade, Department

of Transportation. It appears from _ the

record that her claim of discrimination

is based primarily on an incident, in which

a supervisor suggested that she discuss

a matter of economics with M. Dennis Marvich,

who —ts--a GM-0110-13, Economist, in the same

Division. During oral argument on one of

motions, the plaintiff stated that she felt

it was a "racial slur" to ask her to solicit

lithe plaintiff, pro se, is an attorney.

She represents that she graduated from the Georgetown

Law Center and that she is a member of the bar of the

State of Pennsylvania.

comments Or advice from Mr. Marvich, who

is white and has a lower grade. Mr. Marvich

is currently a doctoral candidate in Economics

at George Washington University, and is

currently writing his doctoral thesis.

The plaintiff refers to this "racial slur"

in a number of her papers.

The plaintiff was suspended from duty

and pay for a period of 14 calendar days

in October 1987 for, among other things,

rude, disrepectful, and insubordinate conduct

toward the Director,"' "refusal to accept

and/or acknowledge official correspondence

from both (her | first and second level

TT

supervisors," failure to attend staff meetings

as directed,""' and absence without’ leave."'

Defendant's Motion Exhibit 1 Plaintiff

admits to her failure to attend staff meetings,

and it appears that she does not deny most

of the other allegations. With respect

to her refusal to attend staff meetings

she advised her supervisor that she would

be "pleased to attend staff meetings that

[9 Ja

LS

7 Po

[her supervisor has! seen fit to advise

[her | of on several different occasions,

provided that [she] receive a written apology

from [her supervisor] and that this written

apology is read to the staff."" Defendant's

Motion Exhibit 2, Attachment 1. The apology

she seeks is for the incident involving

Mr. Marvich.

Plaintiff's allegations concerning

her treatment at the agency are _ set forth

in her memorandum addressed to Arnold Levine

dated October 5, 1987. Defendant's Motion

Exhibit 1, Attachment.

After the action was filed, plaintiff

moved from a temporary restraining order

complaining that the defendant wrongfully

placed her on absent without leave status

and that the defendant's staff engaged in

intentional and systematic harassment against

her. The Court denied the motion without

a hearing. See Order filed October 22,

1987.

(10]a

When the plaintiff continued to refuse

to attend staff meetings and allegedly disobey-

ed other orders from her supervisors, the

defendant sent her a "Decision to _ Remove"

notice dated December 21, 1987. A copy

was placed on plaintiff's desk, another

copy was sent to her at her home, certified

mail, and another copy was left with the

receptionist at her apartment building.

Plaintiff would not accept any of the packages,

although it appears that she had _ physical

possession of at least one of them and that

she simply refused to open the package.

She seeks the same relief in all of

her motions; reinstatement to her job.

II

In order to be entitled to injunctive

relief or a stay, the plaintiff must demon-

strate that she is likely to prevail on

the merits, that she will suffer irreparable

harm if injunctive relief is denied, that

the other parties will not suffer substantial

[1l1ja

ee ee ae ea ee eT

injury if injury if injunctive relief is

granted, and that the public interest favors

the granting of such relief is not adverse

to the public interest. Washington Metro-

politan Area Transit Commission v. Holiday

70ure,., I96<.; 182 U.S.App.D.C. 220, 222,

559 F.2d 841, 843 (1977).

Thus far, plaintiff has failed to

demonstrate that she is likely to prevail

on the merits. This Court has repeatedly

asked her to state the nature of the alleged

"racial slurs'' referred to in her papers.

In response, the plaintiff refers the Court

to the incident involving Mr. Marvich.

Additionally, the plaintiff, while

for the most part conceding that she has

disobeyed orders from her supervisors and

refused to attend staff meetings, fails

to demonstrate that the requests of her

supervisors were umreasonabie or different

from requests made of other employees in

her office.

Finally, at this point in time, it

appears that the plaintiff has been properly

served with the Decision to Remove.

With respect to the likelihood of

irreparable harm, it appears that the plaintif

has an adequate remedy at law. If she

ultimately prevails in this action, the

Court can order her reinstated and awarded

all back pay and allowances. See Sampson

v. Murray, 415 U.S. 61, 94 S.Ct. 937 (1974).

The Court is concerned that, without

a change in attitude on the part of the

plaintiff, that her return to work could

lead to disruption of her office, and in

the long run, may prove counterproductive

to her cause.

“The Court does not suggest that the

Plaintiff will be unable to prevail in this

case or that ner case lacks merits. But, not-

withstanding that the parties are in litigation,

there seems no reason why the plaintiff could

not have complied with the reasonable directives

of her supervisors during the pendency of this

action.

[13]a

Last, the public interest does not

require her return to work.

For all of the above reasons, the Court

concludes that the plaintiff's motions for

preliminary injunction, temporary restraining

order and for a stay must’ be denied. The

plaintiff's motion for declaratory judgment

must also be denied.

III

This Court is not without sympathy

for the plaintiff's plight. In an effort

to bring the parties together, the, Court

on January 28, 1988, held two on the record

telephone conversations, by conference calls

with the plaintiff and counsel for _ the

defendants. The Court proposed that it

hold the motions in abeyance and make arrange-

ments for them to meet with a Senior District

Judge or a Magistrate to determine whether

they cannot agree to a resolution of this

[14]a

1

case. The parties took several hours to

consider the Court's suggestion. Counsel

for the defendant advised the Court that

the defendant is willing to have the motions

held in abeyance and engage in discussions

with the plaintiff, while the plaintiff

advised the Court that she wanted a ruling

on the motions first, but that thereafter,

she is willing to engage in a meeting to

discuss settlement.

The Court will seek to arrange a settle-

ment conference for the parties.

It is hereby

Ordered that the plaintiff's motions

for a sty, a preliminary injunction, and

a temporary restraining order and for

declaratory judgment are denied.

Jan 29 1988 /s/

i: 36 Pee. John Garrett Penn

U.S. District Judge

sSince this case is non-jury, the Court

will not discuss settlement with the parties.

x —

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CONNIE RESHARD,

PLAINTIFF,

VS. Civil No. 87-2794

JIM BURNLEY, FILED

ACTING SECRETARY, U.S. Oct 22 1987

DEPT. OF TRANSPORTATION,

DEFENDANT.

ORDER

This comes before the Court on the

motion for a temporary restraining order

filed by plaintiff. In her complaint filed

October 15, 1987, she claims that she is

the victim of discrimination because of

her race, in violation of Title VII of the

Civil Rights Act of 1964, as amended, 42

U.S.C. s2000e et seg. In her motion, she

seeks to compel the defendant to pay the

plaintiff for forty-eight hours that _ she

alleges defendant wrongfully placed her

on absent without leave status and to prohibit

the defendant from continuing alleged in-

[16Ja |

tentional and systematic harassment in re-

taliation of plaintiff's racial discrimination

complaint.

After giving careful consideration

to the motion, the Court concludes’ that

the motion should be denied.

In order to prevail on the motion the

plaintiff must demonstrate that she is likely

to prevail on the merits, that she will

suffer irreparable harm if injunctive relief

is denied, that the other party will not

suffer substantial in jury if injunctive

relief is granted and that the public interest

favors or is at least not opposed to the

granting of the injunction. See Washington

Metropolitan Area Transit Commission v.

Holiday Tours, Inc., 182 U.S.App.D.C. 220,

222, 559 F.2d 841, 843 (1977).

Here, on the face of the complaint

and in the motion, the plaintiff has failed

to demonstrate that she will suffer irreparable

injury. While the Court accepts, for the

[17]a

purpose of the motion, the reasons why she

feels that defendants actions have harmed

her, these are matters that can be remedied

if she ultimately prevails in this case.

Moreover, the harm alleged in her motion

for a temporary restraining order is. sub-

stantially the harm described in her initial

complaint, therefore plaintiff does have

an adequate remedy at law.

In view of the above, it is hereby

ORDERED~ that plaintiff's motion for

a temporary restraining order is denied. !

Oct. 21, 1987 /s/

6:48 P.M. JOHN GARRETT PENN

UNITED STATES DISTRICT

COURT

1

The Court concludes that a hearing is not

required. Plaintiff submitted her motion on

the papers.

(18 ]a

EXCERPTS FROM 42 U.S.C. 2000e

Section 2000e-2 Unlawful employment practices

(a) It shall be an unlawful employment

practice for an employer -

(1) to fail or refuse to hire or to

discharge any individual, or otherwise to

discriminate against any individual with

respect to his compensation, terms, conditions

or privileges of employment, because of

such individual's race, color, religion,

sex, or national origin; or

(2) to limit, segregate, or classify

his employees or applicants for employment

in any way which would deprive or tend to

deprive any — individual of employment opport-

unities or otherwise adversely affect his

status as an employee, because of such in-

dividual's race, color, religion, sex, or

national origin.

Section 2000e-3 Other unlawful employment

pracitices

(a ) It shall be an unlawful employment

[19] a

practices for an employer to discriminate

against any of his employees or applicants

for employment, for an employment agency,

or joint labor-management committee controlling

apprenticeship or other training or retraining,

including on-the-job training programs,

to discriminate against any individual,

or for a labor organization to discriminate

against any member thereof or applicant

for membership, because he has’ opposed any

practice made unlawful employment practice

by this subchapter, or because he has made

a charge, testified, assisted, or participated

in any manner in an investigation, proceeding,

or hearing under this subchapter.

Section 2000e-5 Enforcement provisions

(g) If the court finds that the respondent

has intentionally engaged in or is in-

tentionally engaging in an unlawful employment

practice charged in the complaint, the court

may enjoin the respondent from engaging

in such unlawful employment practice, and

[20]a4

order such affirmative action as may be

appropriate, which may include, but is not

limited to, reinstatement or hiring of em-

ployees, with or without back pay (payable

by the employer, employment agency, or labor

Organization, as the case may be, responsible

for the unlawful employment practice), or

any other equitable relief as the court

deems appropriate. Back pay liability shall

not accrue from a date more than two years

prior to the filing of a charge with the

Commission.

Section 2000e-16 Employment by Federal

Government

(a) All personnel actions affecting

employees or applicants for employment (except)

with regard to aliens employed outside the

limits of the United States) in military

departments as defined in section 102 of

Title 5 , im executive agencies as defined

in section 105 of Title 5 (including employees

and applicants for employment who are paid

from — re 2 pad in the United

21

States Postal Service and the Postal Rate

Commission, in those units of the Government

of the District of Columbia having positions

in the competitive service, and in those

units of the legislative and judicial branches

of the Federal Government having positions

in the competitive service, and in the Library

Congress shall be made free from any

.@)

rh

discrimination based on race, color, religion,

sex, or national origin.

(b) Except as otherwise provided in

this subsection, the Equal Employment

Opportunity Commission shall have authority

to enforce the provisions of subsection

(a) of this section through appropriate

remedies, including reinstatement. . .

(c) Within thirty days of receipt of

notice of final action taken by a department,

agency, or unit referred to in subsection

(a) of this section, or by the Equal Employment

Opportunity Commission upon an appeal from

a decision or order of such department,

[22h

—————&&<<m<mmo lm

agency, or unit on a complaint of discrimi-

mation based on race, color, religion, sex

or national origin, brought pursuant to

subsection (a) of this section, Executive

Order 11478 or any succeeding Executive

orders, or after one hundred and eighty

days from the filing of the initial charge

with the department, agency, or unit or

with the Equal Employment Opportunity

Commission on appeal from a decison or order

of such department, agency, or unit until

such time as final action may- be taken by

a department, agency, or unit, an employee

or applicant for employment, if aggrieved

by the final disposition of his complaint,

or by the failure to take final action on

his complaint, may file a civil action as

provided in section 2000e5 of this title,

in which civil action the head of the depart-

ment, agency, or unit, as appropriate, shall

be the defendant.

Section 1613.203 of 29 C.F.R. Ch.XIV (1987)

The head of each agency shall exercise personal

leadership in establishing, maintaining,

and carrying out a continuing affirmative

program designed to promote equal opport-

unity in every aspect of agency personnel

policy and practice in the employment, develop-

ment, advancement, and treatment of employees.

Under the treatment of employees. “Under

the terms of its program, an agency shall:

(b) Conduct a continuing campaign to eradicate

every form of prejudice or discrimination

based upon race, color, religion sex, national

origin, from the agency's personnel policies

and practices and working conditions, including

disciplinary action against employees who

engage in discriminatory practices.

(g) Review, evaluate, and control managerial

and supervisory performance in such a manner

as to insure a continuing affirmative appli-

cation and vigorous enforcement of the policy

of equal opportunity, and provide orietation,

[24]a

training, and advice to managers and supervisor

to assure their understanding and implementation

of the equal employment opportunity policy

and program.

* ££ ©

Department of Transportation Procedures

for Processing Complaints of Discrimination

in Employment Practices, DOT Order 1000.8A,

(7-10-76) Paragraph 8(a) (3)

No action adverse to an employee shall be

initiated and no change shall be made in

the duties, assignments or supervision of

any employeee after that employee seeks

counseling with Equal Employment Opportunity

Counselor without prior consultation with

the appropriate Equal Employment Opportunity

Officer.