United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
R. Herndon United States District Judge.
Introduction and Background Before the Court is
plaintiff's motion for preliminary injunction. (Doc. 52).
Specifically, plaintiff seeks to enjoin defendants from
“(1) terminating the plaintiff's continuing
appointment set to expire May 5, 2017; and (2) calling, and
sending intimidating messages and letters to the Plaintiff
about her continued employment with SIUE.” (Doc. 52,
pg. 1). For the reasons explained below, the Court DENIES
plaintiff's motion for preliminary injunction.
Janice LaRiviere, is a former Southern Illinois University
Edwardsville (hereinafter “SIUE”) employee who
served in an administrative position within the Department of
Facilities Management from 2005-2014. (Doc. 42, pg. 3-4). The
Court notes here that plaintiff makes conflicting statements
about her title and position during that time. (Doc. 42, pg.
3, ¶ 12 and Doc. 52, pg. 1). Plaintiff was hired
pursuant to a continuing appointment, which was to be renewed
automatically each year unless she was given notice. (Doc.
42, pg. 4). Employees appointed three or more times, of which
plaintiff is one, shall be given no less than one year's
notice of their non-reappointment. (Doc. 42, pg. 4). Again,
the Court notes that plaintiff makes conflicting statements
about the number of times she was reappointed. (Doc. 42, pg.
4, ¶ 12 and Doc. 52, pg. 2). Defendants Fuligni, Meyer,
and Neher are employed in supervisory positions at SIUE and
have direct authority over plaintiff. (Doc. 42, pg. 4).
Plaintiff has had a history of filing complaints and lawsuits
alleging discrimination, harassment and/or retaliation
against one or more of the defendants in both Illinois State
and Federal court since 2011. (Doc. 52, pg. 2; Doc 42, pg.
alleges on May 5, 2016, defendant SIUE terminated her
continuing appointment with no notice and simultaneously
converted it to a term appointment set to expire May 5, 2017.
(Doc. 42, pg. 7; Doc. 52, pg. 2). She claims this was because
it would then be possible to “remove the Plaintiff
before the end of the term appointment, without regard to
seniority, skills, knowledge, or abilities, and with as short
of notice as the Defendant deems necessary….”
(Doc. 52, pg. 2; Doc. 42, pg. 7-8). Plaintiff's term
appointment will conclude two years before she is eligible to
receive minimum retirement benefits. (Doc. 52, pg. 2; Doc.
42, pg. 7). Further, employees on term appointments may be
removed prior to the expiration of the term appointment for
“just cause and/or by appropriate notice as
reorganization or retrenchment may require.” SIUE
Admin. Prof. Staff Proc. Manual 2.3. Plaintiff contends that
she has never been required to undergo evaluation for
unsatisfactory performance, as required by SIUE
Administrative Professional Staff Procedure Manual 2.18,
because she has “never been disciplined, warned,
reprimanded, or even consulted about… her work product
or attitude….” (Doc. 52, pg. 3). She states that
without appropriate notice, she was “constructively
discharged and her job responsibilities were materially
altered” because she was “removed to a remote job
site and exposed to intolerable work conditions[, ]
inoperable toilets, no hot water, [and] inadequate
circulation….” (Doc. 52, pg. 3; Doc. 42, pg.
the termination of continuing appointment, plaintiff filed an
internal complaint with the University's Office of Equal
Opportunity, Access, and Title IX Coordination
(“EOC”) alleging race discrimination and
retaliation by defendants Fuligni, Meyer, and Neher. Doc. 52,
Pg. 3. There was an investigation conducted, a report
disseminated, and a conclusive finding that plaintiff's
duties were changed and that there was going to be a
reorganization of the department. (Doc. 52, pg. 3).
Furthermore, the investigation found that “the
determination to change the Complainant's contract status
to a term contract [was] an adverse employment action.”
(Doc. 52, pg. 3-4). This determination appears to have been
made as a result of plaintiff being the first administrative
professional changed to a term appointment, the “only
occupant” at her new job site, and there being four
administrative professional staff employees with less
seniority who did not feel similar effects on employment.
(Doc. 52, pg. 4).
plaintiff alleges that around March 3, 2017, defendant
Fuligni “began repeatedly calling Plaintiff and leaving
voicemail messages stating that although he was aware that
Plaintiff was out on sick leave until May 5, 2017, he wanted
her to clear out her office.” (Doc. 52, pg. 4). When
there was no response, defendant Fuligni mailed plaintiff a
letter dated March 27, 2017, advising her that her desktop
computer and telephone had been removed from her office and
that she needed to take the following actions: (1) remove all
of her personal items from her office, (2) provide to him
anything she has completed for her work assignments, (3)
return her P-card, (4) return all University keys, and (5)
return any other University property she has in her
possession. (Doc. 52, pg. 4).
order to obtain a preliminary injunction under Rule 65,
plaintiff must demonstrate the following: (1) her underlying
case has some likelihood of success on the merits, (2) no
adequate remedy at law exists, and (3) she will suffer
irreparable harm without the injunction. Woods v.
Buss, 496 F.3d 620, 622 (7th Cir. 2007); Fed.R.Civ.P.
65. If those three factors are shown, the Court must then
balance the harm to each party and to the public interest
from granting or denying the injunction. Id.;
Korte v. Sebelius, 735 F.3d 654, 665 (7th Cir.
2013); Cooper v. Salazar, 196 F.3d 809, 813 (7th
Cir. 1999). The United States Supreme Court has emphasized
that a “preliminary injunction is an extraordinary and
drastic remedy, one that should not be granted unless the
movant, by a clear showing, carries the burden of
persuasion.” Christian Legal Soc'y v.
Walker, 453 F.3d 853, 870 (7th Cir. 2006) (quoting
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)
(emphasis in original)).
does not meet the prong for showing that she will suffer
irreparable harm; therefore, regardless of whether the other
two prongs are met, the test for obtaining a preliminary
injunction fails. Thus, the Court will limit its analysis to
the irreparable harm prong. Under that prong, the kind of
harm that the Court is concerned about “is not harm
tout court but rather irreparable
harm.” Turnell v. CentiMark Corp., 796 F.3d
656, 666 (7th Cir. 2015); See also Roland
Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380,
386 (7th Cir. 1984). Only if the plaintiff will suffer harm
that cannot be prevented or fully rectified by the final
judgment after trial can he get a preliminary injunction.
Roland, 749 F.2d at 386. Thus, when it is only
damages that are sought, the adequate remedy and irreparable
harm requirements merge because the question becomes whether
the plaintiff will be made whole if he prevails on the merits
and is awarded the damages he or she seeks. Id. The
Seventh Circuit has held that to be inadequate, the damages
must be “seriously deficient as a remedy for the harm
employment context, the type of injury must “depart
from the harms common to most discharged employees.”
Bedrossian v. Northwestern Memorial Hosp., 409 F.3d
840, 845 (7th Cir. 2005) (citing Sampson v. Murray,
415 U.S. 61, 92 (1974)). Thus, humiliation, damages to
reputation, loss of income due to purportedly wrongful
termination, inability to find another job, or other
speculative injuries do not rise to the level of irreparable
harm. Id. at 845-46; See also East St.
Louis Laborers' Local 100 v. Bellon Wrecking &
Salvage Co., 414 F.3d 700, 704-05 (7th Cir. 2005) and
E.E.O.C. v. City of Janesville, 630 F.2d 1254, 1259
(7th Cir. 1980). Furthermore, even in the case of race or sex
discrimination, reinstatement pending trial is an
extraordinary remedy. E.E.O.C., 630 F.2d at 1259.
The purpose of the irreparable harm requirement is to
“take care of the case where although the ultimate
relief that the plaintiff is seeking is equitable, implying
that he has no adequate remedy at law, he can easily wait
till the end of trial to get that relief.”
Roland, 749 F.2d at 386.
contends that if defendants are not enjoined from terminating
her continuing appointment, she “will be unemployed and
not able to provide for herself or her family, [as] she is
ineligible to receive minimum retirement benefits after 15
years of employment with the University.” (Doc. 52, pg.
13). Plaintiff claims it is “highly unlikely if not
impossible to regain the professional status, position and
tenure with other employment as she has accumulated with the
University.” (Doc. 52, pg. 13). Lastly, plaintiff
states “it will be unduly burdensome… to pay for
the basic expenses incurred in pursuing this lawsuit”
and her “mental and emotional decline will be
accelerated and exacerbated if the Defendants are not
enjoined….” (Doc. 52, pg. 13).
defendants contend plaintiff's injuries relate “to
lost salary and benefits and thus are easily defined and
calculable.” (Doc. 54, pg. 6). In so contending,
defendants argue that plaintiff “has failed to set
forth any harm that depart[s] from the harms common to most
discharged employees.'” (Doc. 54, pg. 7). In
particular, defendants state that the injuries suffered are
“the exact type of damage that almost every terminated
employee suffers or claims to suffer.” (Doc. 54, pg.
the Court finds that plaintiff will not suffer harm that
cannot be prevented or fully rectified by a final judgment
after trial. Thus, a preliminary injunction is improper
because only damages are sought, plaintiff can be made whole
if she prevails on the merits of her claims, and the damages
will not be “seriously deficient as a remedy for the
harm suffered.” In particular, the types of injuries
complained of here do not “depart from the harms common
to most discharged employees.” Plaintiff is complaining
of injuries similar to those found not to be irreparable in
Bedrossian and Sampson, namely
unemployment, inability to provide for herself and her
family, ineligibility for retirement benefits, inability to
regain professional status, position and tenure in other
employment, inability to pay basic expenses for ...