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Kevin L. Greenfield v. United States Marine Corps


April 4, 2012


The opinion of the court was delivered by: Honorable Janis L. SammartinoUnited States District Judge



Presently before the Court is Plaintiff Kevin L. Greenfield's ("Plaintiff") ex parte application for temporary restraining order ("TRO"). (TRO, ECF No. 3) Also before the Court are Defendants' opposition, (Resp. in Opp'n, ECF No. 6), and Plaintiff's reply in support, (Reply in Supp., ECF No. 8). Having considered the parties' arguments and the law, the Court DENIES Plaintiff's application.


Until recently, Plaintiff was employed as a civilian Captain in the Camp Pendleton Police Department, holding the position of Operations Officer. Beginning approximately one year after he was hired, from about April 2009 to July 2010, Plaintiff was allegedly subjected to a hostile work environment. Specifically, as alleged in the complaint, Plaintiff experienced acts of work-place violence that were not acted upon despite Plaintiff's reports to supervisors; his authority was undermined by certain Civilian Police Lieutenants, who directed malicious and racist statements toward and about Plaintiff; he was denied a salary adjustment though similarly situated white police officers were allowed to have their salaries reviewed and adjusted; and his cell phone was stolen in an attempt to inhibit his job performance.

In light of all this, Plaintiff began pursuing a hostile work environment claim by filing an Equal Employment Opportunity ("EEO") complaint. Soon after initiating the investigation of his EEO complaint, however, Plaintiff became the subject of several internal investigations regarding his job performance. Ultimately, in July 2011, he was placed on administrative leave pending an investigation, and, on December 16, 2011, Plaintiff was served with a notice of proposed removal from federal service. Hence, the instant action seeking, inter alia, to enjoin Defendants from terminating Plaintiff's employment. But, before the Court had a chance to rule on Plaintiff's application for a TRO to enjoin his termination, Defendants removed him from service.


Temporary restraining orders are governed by the standard applicable to preliminary injunctions. See Fed. R. Civ. P. 65. A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); see also Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir. 2009). Although all four factors must be met, they operate on a sliding scale. "Under this approach, the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another." Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). For example, "a stronger showing of irreparable harm to plaintiff might offset a lesser showing of likelihood of success on the merits." Id. at 1135.

A preliminary injunction is an "extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter, 555 U.S. at 22. The typical preliminary injunction is prohibitory, and seeks to "maintain the status quo pending a trial on the merits." Mastrovincenzo v. City of N.Y., 435 F.3d 78, 89 (2d Cir. 2006); see also Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 878--89 (9th Cir. 2009). A mandatory injunction, in contrast, "orders a responsible party to take action . . . [and] goes well beyond simply maintaining the status quo." Marlyn Nutraceuticals, 571 F.3d at 879 (citations omitted) (internal quotation marks omitted). Mandatory injunctions are particularly disfavored, and should not be granted "unless extreme or very serious damage will result." Id.


1. Mootness

Defendants' primary argument for why Plaintiff's application should be denied is that it is moot. (Resp. in Opp'n 3, ECF No. 6) Plaintiff's application for a TRO seeks to enjoin Defendants from terminating Plaintiff:

Plaintiff requests the Court . . . enjoin and restrain Defendants, its agents, servants, and employees from engaging in, committing, or performing, directly or indirectly, from terminating Plaintiff from his Federal Employment as a Civilian Police Captain in the United States Marine Corps Police Department, Camp Pendleton, until the conclusion of the litigation in this matter. (TRO 3, ECF No. 3) But, effective February 28, 2012, Plaintiff was terminated.*fn2 (Resp. in Opp'n 3, ECF No. 6) And so, according to Defendants, "injunctive relief is no longer available to Plaintiff," and his "application must be denied as moot." (Id.) Plaintiff counters that "[t]o allow Defendants to simply resolve the matter of the TRO by terminating Plaintiff prior to this Court's adjudication of the matter" would be inequitable. (Reply in Supp. 2, ECF No. 8)

The mootness doctrine "requires that an actual, ongoing controversy exist at all stages of federal court proceedings." Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1086 (9th Cir. 2011).

Thus, "if events subsequent to the filing of the case resolve the parties' dispute, [a court] must dismiss the case as moot." Id.; see also Friends of the Earth, Inc. v. Bergland, 576 F.2d 1377, 1379 (9th Cir. 1978) ("Where the activities sought to be enjoined have already occurred, and the [court] cannot undo what has already been done, the action is moot."). Importantly, however, "a case is not moot if the court has the ability to undo the effects of conduct that was not prevented by the time of the decision." Garcia v. Lawn, 805 F.2d 1400, 1402 (9th Cir. 1986) (internal quotation marks omitted).

Here, Plaintiff's application for a TRO seeks only to enjoin Defendants from terminating him. (TRO 3, ECF No. 3) Because his termination has already occurred, the specific relief requested would appear to be moot. See Bergland, 576 F.2d at 1379. However, "'[i]t has long been established that where a defendant with notice in an injunction proceeding completes the acts sought to be enjoined the court may by mandatory injunction restore the status quo.'" Garcia, 805 F.2d at 1402 (quoting Porter v. Lee, 328 U.S. 246, 251 (1946)). As such, the Court interprets Plaintiff's application as requesting the Court to maintain the status quo, rather than specifically requesting it to enjoin Plaintiff's termination, which has already occurred. Interpreted this way, Plaintiff's application is not moot.

"The status quo is the last uncontested status which preceded the pending controversy." Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804, 808 (9th Cir. 1963) (internal quotation marks omitted). Here, the status quo preceding Plaintiff's complaint and application was that Plaintiff was employed as a Civilian Police Captain in the U.S. Marine Corps Police Department at Camp Pendleton, but that he was on administrative leave. (Compl. ¶ 40, ECF No. 1); (TRO 2, ECF No. 3) At the time the TRO application was filed, the decision regarding Plaintiff's proposed termination was still pending. (TRO 2, ECF No. 3) Thus, the Court views Plaintiff's application as requesting to maintain this status quo: reinstatement into his position as a Civilian Police Captain, but maintenance of his status as being on administrative leave. See Garcia, 805 F.2d at 1403. Accordingly, the relief requested is still available to Plaintiff, and this application is not moot. Id. at 1404 ("This appeal is not moot because the termination is not irreversible.").

2. Exhaustion of Administrative Remedies

A. Legal Standard

In order for the Court to have subject matter jurisdiction over Plaintiff's Title VII claim, Plaintiff must have exhausted his administrative remedies. B.K.B. v. Maui Police Dep't, 276 F.3d 1091, 1099 (9th Cir. 2002). "Under Title VII, a plaintiff must exhaust her administrative remedies by filing a timely charge with the EEOC . . . thereby affording the agency an opportunity to investigate the charge." Id. (citing 42 U.S.C. § 2000e-5(b)).

A court's "[s]ubject matter jurisdiction extends over all allegations of discrimination that either 'fell within the scope of the EEOC's actual investigation or an EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.'" Id. at 1100 (quoting EEOC v. Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir. 1994)). In determining the scope of a court's jurisdiction, a court must "construe the charge liberally," Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir. 1990), and may consider "allegations occurring not only before, but also after the filing of [the] EEOC charge," id. at 1456--57 (citing Chung v. Pomona Valley Cmty. Hosp., 667 F.2d 788, 792 (9th Cir. 1982)); see also Oubichon v. N. Am. Rockwell Corp., 482 F.2d 569, 571 (9th Cir. 1973) ("When an employee seeks judicial relief for incidents not listed in his original charge to the EEOC, the judicial complaint nevertheless may encompass any discrimination like or reasonably related to the allegations of the EEOC charge, including new acts occurring during the pendency of the charge before the EEOC.").

B. Analysis

Here, Plaintiff filed his first EEO complaint in December 2010, and a second EEO complaint in December 2011. (Compl. ¶ 30, ECF No. 1) Neither party has furnished copies of the EEO complaints to enable the Court to evaluate the appropriate scope of Plaintiff's claim.

According to Defendants, Plaintiff's prior EEO complaints "do not suffice for exhaustion as those complaints alleged discrimination and reprisal stemming from different adverse actions, and both EEO complaints were filed prior to Plaintiff's removal from employment." (Resp. in Opp'n 4, ECF No. 6) Moreover, Defendants contend "Plaintiff's removal is not like or reasonably related to his prior EEO claims as these adverse actions involve completely different events, dates, and different management officials, and Plaintiff's removal claim falls outside the scope of the Agency's prior EEOC investigation which was limited to his claims of race discrimination and retaliation." (Id. at 4 n.2)

According to Plaintiff, however, the first EEO complaint alleged that "Plaintiff's superiors have cause and/ or allowed a hostile work environment based on race to exist under their command, and further have caused and/ or allowed Plaintiff, and/ or Plaintiff's witnesses to be retaliated against for making and/or supporting said claims." (Compl. ¶ 30, ECF No. 1) Assuming the truth of this allegation and construing it liberally, Plaintiff's termination could fall within the scope of his prior EEO complaints, given that he alleged retaliation for pursuing his hostile work environment claims. The fact that the allegedly retaliatory termination did not take place until after the EEO complaint was filed is not determinative; the scope of the charge can encompass subsequent acts "like or reasonably related" to the initial allegations. Oubichon, 482 F.2d at 571.

At oral argument, the Court pressed both sides for more information regarding the EEO proceedings, but to no avail. But it is difficult to evaluate the scope of Plaintiff's EEO complaint to determine whether he satisfied the exhaustion requirement without more information regarding the EEO proceedings. Because of this lack of information and because the Court ultimately finds that a TRO should not be issued, see infra, the Court will not speculate as to whether Plaintiff has exhausted his administrative remedies.*fn3 // //

3. TRO

A. Likelihood of Irreparable Harm

The governing standard requires the Court to first determine whether Plaintiff is likely to suffer irreparable harm in the absence of a TRO. See Winter, 555 U.S. at 20; Cottrell, 632 F.3d at 1135. Generally, "economic injury alone does not support a finding of irreparable harm, because such injury can be remedied by a damage award." Rent-A-Center, Inc. v. Canyon Television & Appliance Rental, Inc., 944 F.2d 597, 603 (9th Cir. 1991). And, in context of termination from employment, it has been held that "the temporary loss of income, ultimately to be recovered, does not usually constitute irreparable injury." Sampson v. Murray, 415 U.S. 61, 90 (1974).

A careful look at the alleged irreparable harm is necessary in the instant case. The requirements of a showing of irreparable harm in this context-i.e. a Title VII action against a government employer-were addressed by the Ninth Circuit in Garcia, 805 F.2d 1404--06.*fn4

There, the court stated that a plaintiff able to show only economic loss as the result of a discharge would rarely prevail in a claim for injunctive relief to retain employment. . . . This case, however, involves more than a claim of harm to the plaintiff and his family as the result of the termination. The claimed violation of the law in this case is retaliatory action for the exercise of Title VII rights, action which, if plaintiff is correct, will have a deleterious effect on the exercise of these rights by others.

Id. at 1405.

Although the Ninth and other circuits have recognized the "chilling effect" retaliatory discharges may have on other employees from protecting their rights under Title VII or from participating as witnesses in pending Title VII actions, none have held that as a result irreparable harm is automatically established. To the contrary, those courts that have addressed the issue have uniformly held that a Title VII plaintiff must prove the chilling effect. See id.; Moore v. Consol. Edison Co. of N.Y., Inc., 409 F.3d 506, 512 (2d Cir. 2005) (citing Holt v. Cont'l Grp., 708 F.2d 87, 91 (2d Cir. 1983)); Adam-Mellang v. Apartment Search, 96 F.3d 297, 301 (8th Cir. 1996); Marxe v. Jackson, 833 F.2d 1121, 1128--29 (3d Cir. 1987).

Here, Plaintiff not only alleges that he personally was aggrieved-monetarily and emotionally, (Compl. ¶¶ 48--49, ECF No. 1)-by his employer's conduct, but he also alleges that retaliatory actions were taken against one of his witnesses. Specifically, Plaintiff alleges that after a list of witnesses to his hostile work environment claim was inadvertently disclosed,*fn5 Plaintiff's superiors audited one of the witnesses' payroll records in retaliation for his participation in Plaintiff's action. (Id. ¶¶ 30, 32) Moreover, Plaintiff alleges that his co-workers were aware that Plaintiff's superiors actively sought out reasons to terminate Plaintiff's employment in retaliation for his pursing his hostile work environment claim. (Id. ¶¶ 24, 32, 36) Thus, those employees may be chilled from pursuing their own meritorious Title VII claims for fear of like retaliation. Cf. Moore, 409 F.3d at 512 (finding no irreparable harm where "plaintiff did not allege that other employees were aware of [the retaliation], much less intimidated by it"). Accordingly, the Court finds that the alleged third-party chilling effect constitutes an irreparable injury under the facts of this case.

B. Likelihood of Success on the Merits

Relevant here, Plaintiff alleges that he was retaliated against in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-1 to e-17. To establish a Title VII retaliation claim, Plaintiff must show "(1) involvement in a protected activity, (2) an adverse employment action[,] and (3) a causal link between the two." Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000). "[A]n adverse employment action is adverse treatment that is reasonably likely to deter employees from engaging in protected activity." Ray v. Henderson, 217 F.3d 1234, 1237 (9th Cir. 2000). To establish causation, a plaintiff must show that engaging in the protected activity was one of the reasons for the adverse employment action and that but for such activity the adverse employment action would not have occurred. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1064--65 (9th Cir. 2002).

Here, if the Court accepts as true Plaintiff's version and interpretation of the circumstances of his employment and termination, he has stated a prima facie case for retaliation. First, Plaintiff alleges that he was involved in protected activity by pursuing his hostile work environment claim and by complaining to his superiors. Second, he alleges that he suffered adverse employment action by being subjected to pretextual investigations, being placed on administrative leave, and being proposed for removal and ultimately removed from federal service. Third, Plaintiff has alleged a causal link between his protected activity and the adverse employment action, bolstered by the proximity in time between the events. See Jordan v. Clark, 847 F.2d 1368, 1376 (9th Cir. 1988).

Defendants contend, however, that Plaintiff was terminated not on the basis of his race or in retaliation for his protected activities, but because of his own "improper conduct." (Resp. in Opp'n 7, ECF No. 6) In support of this argument, Defendants attached as Exhibit A to their opposition the February 28, 2012, Notice of Decision to Effect Removal From Federal Service, explaining that Plaintiff's removal was based on his "Violation of the Standards of Conduct (Ethics) with two specifications, Failure to Properly Protect Personal Identification Information (PII) with one specification, and Lack of Candor during an Official Administrative Inquiry with [two*fn6 ] specifications." (Ex. A at 1, ECF No. 6) Although the letter does not address with specificity the conduct leading to Plaintiff's removal, it exhaustively explains the rationale for terminating Plaintiff in light of the listed violations. For example, it states that Plaintiff's violations preclude him from maintaining the role of a supervisory police officer because his supervisors can no longer trust him to abide by and enforce the rules and regulations of the U.S. Marine Corps. Moreover, because Plaintiff did not accept responsibility for his actions, his potential for rehabilitation was low, necessitating his permanent removal from employment. (Id. at 2--5) As such, Defendants contend that Plaintiff's removal was based on legitimate, non-discriminatory, non-retaliatory reasons.

Despite the apparently legitimate rationale for termination presented by Defendants, Plaintiff asserts that his "superiors consistently look[ed] through Plaintiff's training records, looking for reasons to terminate Plaintiff's employment with the police department," (Compl. ¶ 24, ECF No.1), suggesting that Defendants' rationale is merely pretext. Plaintiff notes the timing of the investigation and charges against him, asserting that whatever the alleged basis for the charges, they were really brought only in retaliation for his protected activity.

With such a contested factual scenario, "a court should not grant [injunctive relief] unless the moving party makes a further showing sufficient to demonstrate that he will probably succeed on the merits." K-2 Ski Co. v. Head Ski Co., 467 F.2d 1087, 1089 (9th Cir. 1972); see also Dymo Indus., Inc. v. Tapeprinter, Inc., 326 F.2d 141, 143 (9th Cir. 1964) ("[O]n application for preliminary injunction the court is not bound to decide doubtful and difficult questions of law or disputed questions of fact."). Based on the contested facts present here, the Court cannot conclude that Plaintiff is likely to succeed on the merits; it seems at least as likely that Defendants will prevail.

C. Balance of Equities & Public Interest

In determining whether to grant preliminary relief, a court should consider the relative impact any injunction would have on the defendant if it were issued, or on the plaintiff if it were not. Friends of the Earth v. Coleman, 518 F.2d 323, 330 (1975). The Court also considers the public interest, including whether a TRO would further the purposes of Title VII.

Defendants argue this balance tips in its favor because the military's interest in preventing the type of "inappropriate behavior" that Plaintiff engaged in outweighs Plaintiff's individual interest in not being terminated. (Resp. in Opp'n 8, ECF No. 6) Defendants' contentions focus on the inappropriateness of allowing Plaintiff to "continue working as a supervisory police officer despite the Command's belief that Plaintiff engaged in . . . highly improper conduct." (Id.)

As Plaintiff points out, however, he is not requesting to be placed back in an active role as a Civilian Police Captain, but rather to remain on administrative leave. (Reply in Supp. 3, ECF No. 8) Under these circumstances, it would appear the balance tips toward Plaintiff. A TRO would not require that Defendants place Plaintiff back in an active supervisory police officer role; rather, Plaintiff would retain his passive role on administrative leave,*fn7 avoiding the issues Defendants raise.

In response to the Court's questioning at oral argument, however, Defendants raised other compelling concerns regarding a TRO that would place Plaintiff back on administrative leave. Defendants point out that if Plaintiff is on paid administrative leave, Defendants cannot hire a replacement to fill his position. This would leave Defendants short one civil police officer throughout the pendency of this lawsuit, which is still in its infancy. The Court agrees that this is not only detrimental to Defendants' operations, but is also against the public's interest.


Balancing the four factors analyzed above, the Court finds that a TRO is not warranted under these circumstances. Though Plaintiff has demonstrated an irreparable harm, that third-party harm is not so strong to offset Plaintiff's weaker showing as to the likelihood of success on the merits and the fact that the balance of equities appears to fall in Defendants' favor. Thus, Plaintiff's ex parte application for a TRO is DENIED.


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