Oliver v. New York State Police ( 2020 )

19-1493-cv
Oliver v. New York State Police, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 21st day of July, two thousand twenty.
PRESENT: JOSÉ A. CABRANES,
RAYMOND J. LOHIER, JR.,
STEVEN J. MENASHI,
Circuit Judges.
JEAN C. OLIVER,
Plaintiff-Appellant, 19-1493-cv
v.
NEW YORK STATE POLICE, JOSEPH D’AMICO, IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY, FRANCIS
CHRISTENSEN, IN HIS INDIVIDUAL AND OFFICIAL
CAPACITY, MICHAEL CERRETTO, IN HIS INDIVIDUAL
AND OFFICIAL CAPACITY, WAYNE OLSON, IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY, STEVEN
NIGRELLI, IN HIS INDIVIDUAL AND OFFICIAL
CAPACITY, MARTIN MCKEE, IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY, TIMOTHY OWENS, IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY, PAUL KELLY,
IN HIS INDIVIDUAL AND OFFICIAL CAPACITY,
TIMOTHY BOUR, IN HIS INDIVIDUAL AND OFFICIAL
CAPACITY, GARY KOPACZ, IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY,
Defendants-Appellees.
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FOR PLAINTIFF-APPELLANT: JEAN C. OLIVER, pro se, Elma, NY.
FOR DEFENDANTS-APPELLEES
New York State Police, Joseph D’Amico,
Francis Christensen, Michael Cerretto,
Wayne Olson, Steven Nigrelli, Timothy Owens,
Paul Kelly, Timothy Bour and Gary Kopacz: DANIEL J. MOORE, Harris Beach LLC,
Pittsford, NY.
FOR DEFENDANT-APPELLEE Martin McKee: LISA F. JOSLIN, Gleason, Dunn, Walsh &
O’Shea, Albany, NY.
Appeal from a May 6, 2019 order of the United States District Court for the Northern
District of New York (Brenda K. Sannes, Judge).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order of the District Court be and hereby is
AFFIRMED.
Appellant Jean Oliver sued her former employer, the New York State Police (“NYSP”), its
former superintendent, Joseph D’Amico, and others for employment discrimination and retaliation.
She generally alleged she was sexually harassed and fired based on falsified disciplinary charges when
she complained about the harassment, and that the NYSP failed to properly follow its procedures
for disciplinary hearings. In 2019, four months after deposing D’Amico and learning that he had
failed to follow those procedures, Oliver moved, pro se, for a preliminary injunction seeking
reinstatement to her former position as an NYSP investigator. The District Court denied the
injunction because Oliver had not shown irreparable harm and her delay in filing her motion
undermined any argument that she would suffer irreparable harm. We assume the parties’ familiarity
with the underlying facts, the procedural history of the case, and the issues on appeal.
We have jurisdiction to review an interlocutory appeal from the denial of a preliminary
injunction. See 28 U.S.C. § 1292(a)(1). We review a decision on a motion for a preliminary injunction
for abuse of discretion. Grand River Enter. Six Nations, Ltd.v. Pryor, 481 F.3d 60, 66 (2d Cir. 2007). A
district court abuses its discretion if it relies on a clearly erroneous evaluation of the evidence or
applies the wrong legal standard. Id.
The District Court did not abuse its discretion by denying Oliver’s motion for a preliminary
injunction. A party seeking a preliminary injunction against governmental action must demonstrate
(1) that it is likely to suffer irreparable harm absent an injunction and (2) a likelihood of succeeding
on the merits. Trump v. Deutsche Bank AG, 943 F.3d 627, 635–37 (2d Cir. 2019), vacated on other
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grounds, --- S. Ct. ----, 2020 WL 3848061 (2020). Irreparable harm “is the single most important
prerequisite.” Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009) (internal
quotation marks omitted).
To show irreparable harm, “[t]he movant must demonstrate an injury that is neither remote
nor speculative, but actual and imminent and that cannot be remedied by an award of monetary
damages.” Rodriguez ex rel. Rodriguez v. DeBuono, 175 F.3d 227, 234 (2d Cir. 1999) (internal quotation
marks omitted). Irreparable harm exists “where, but for the grant of equitable relief, there is a
substantial chance that upon final resolution of the action the parties cannot be returned to the
positions they previously occupied.” Brenntag Int’l Chems., Inc. v. Bank of India, 175 F.3d 245, 249–50
(2d Cir. 1999).
The District Court applied the correct legal standard. We need not decide whether it was an
abuse of discretion for the District Court to conclude that Oliver’s delay in seeking a preliminary
injunction alone undermined a claim of irreparable harm because we conclude that, even absent
delay, her injuries were not irreparable. “As a general matter, because monetary injury can be
estimated and compensated, the likelihood of such injury usually does not constitute irreparable
harm.” Brenntag Int’l Chems., Inc., 175 F.3d at 249. However, the irreparable-harm requirement might
be satisfied if a monetary award would cause the movant to go bankrupt absent interim relief. Miss
Am. Org. v. Mattel, Inc., 945 F.2d 536, 546 (2d Cir. 1991).
Oliver argues that, absent a preliminary injunction, she (1) was unlikely to be reinstated by
the NYSP in time to earn a pension; (2) had been unable to secure employment by other law
enforcement agencies and suffered from a loss of reputation as a result of her termination; (3) had
been forced to start a small business as a result of her termination, but might lose the business if she
was not reinstated; and (4) had been forced to take work in the military and live separately from her
family while on tours of duty. But “irreparable harm is not [generally] established in employee
discharge cases by financial distress or inability to find other employment, unless truly extraordinary
circumstances are shown.” Holt v. Continental Grp., Inc., 708 F.2d 87, 90–91 (2d Cir. 1983) (citing
Sampson v. Murray, 415 U.S. 61, 91–92 & n.68 (1974)). Although irreparable harm may be shown in
retaliatory discharge cases where there is evidence that the plaintiff’s termination chilled other
employees’ ability to report discrimination or from providing the plaintiff with evidence to support
her claim, see id. at 91, no such argument is made here. Nor does Oliver argue that she was facing
bankruptcy or financial insolvency as a result of her unemployment. Oliver has maintained
employment in the military and runs a small business with her family. Oliver’s loss of reputation and
difficulty finding other employment also does not constitute an irreparable injury. Sampson, 415 U.S.
at 91–92; Guitard v. U.S. Sec’y of Navy, 967 F.2d 737, 742 (2d Cir. 1992). Although Oliver’s separation
from her family may be the type of “extraordinary circumstance[]” contemplated in Holt, we are not
persuaded that such circumstances were demonstrated in this case.
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Because Oliver did not show irreparable harm, which is “an absolute requirement for a
preliminary injunction,” Holt, 708 F.2d at 90, the District Court did not abuse its discretion by
denying her motion.
In short, we are affirming the District Court’s denial of a preliminary junction because, under
our standard for obtaining a preliminary injunction, Oliver still has available to her a remedy at law
in the form of money damages. We note, however, that nothing in this order should be construed as
our casting any doubt on the merits of Oliver’s claims in the underlying litigation. Indeed, we found
entirely plausible Oliver’s explanation for the four-month delay in seeking an injunction. We
expressly reject the proposition stated by counsel for Appellees at oral argument that the issues in
this appeal were “mooted” by the District Court’s grant of summary judgment to Appellees with
respect to Oliver’s wrongful discharge claim. Accordingly, particularly because Oliver has retaliation
claims that are still pending before the District Court, this order does not foreclose any potential
remedies available to Oliver when the case proceeds upon remand, including reinstatement.
CONCLUSION
For the foregoing reasons, we AFFIRM the May 6, 2019 order of the District Court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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