The opinion of the court was delivered by: Paul L. Friedman, District Judge.
This matter is before the Court on plaintiff Gordon Barrow's motion
for a temporary restraining order to prevent Carolyn Graham, Deputy
Mayor for Children, Youth and Families and Interim Director of the
Department of Human Services ("DHS"), and the District of Columbia from
terminating his employment effective today, Friday, December 15, 2000.
Plaintiff seeks an order that will preserve the status quo until such
time as the Court can make a determination on the merits of Mr. Barrow's
claim. Plaintiff's motion was filed on December 13, 2000, and defendants'
opposition was filed on December 14, 2000. Later on December 14, 2000,
the Court heard argument on plaintiff's motion. Upon consideration of
the arguments made by counsel for the parties in their briefs and at the
hearing, the Court will grant plaintiff's motion for a temporary
In response to a series of articles published in The Washington Post
detailing the problems with group homes run by MRDDA, including the
abuse of group home residents and the deaths of 116 of the residents
since 1993, Carolyn Graham announced that several high-ranking officials
at MRDDA would be fired. At a January 18, 2000 press conference, Mayor
Williams promised to overhaul MRDDA, including the termination of five
employees he felt were responsible for the problems in MRDDA group homes.
An article in The Washington Post reporting the Mayor's press conference
revealed that the District of Columbia intended to terminate Mr. Barrow.
On January 18, 2000, Ms. Graham sent Mr. Barrow a notice of proposed
termination enumerating seven different grounds for his termination. In
accordance with Section 1613 of the D.C. Personnel Regulations, Mr.
Barrow was granted an administrative review by a "disinterested
designee," Theresa Cusick, who after a hearing concluded that none of
the seven charges against Mr. Barrow was supported by the facts. On May
2, 2000, Ms. Graham sent Mr. Barrow a letter withdrawing the notice of
proposed termination subject to further investigation.
On September 7, 2000, Ms. Graham sent Mr. Barrow a second notice of
proposed termination setting forth three new charges supporting his
removal. Mr. Barrow denied these charges in a written response submitted
on September 14, 2000 and asked for a hearing. Ms. Graham originally
selected Robert James to be the "disinterested designee," but then
replaced Mr. James with Brian Godette. Mr. Barrow objected to the
selection of Mr. Godette and Mr. Godette therefore also was replaced.
Eventually Lori Parker was appointed as the third "disinterested
designee." Ms. Parker issued a report on November 28, 2000, agreeing
with Ms. Graham that Mr. Barrow should be terminated. On December 6,
2000, Mr. Barrow received a final notice of termination from Ms. Graham
setting December 15, 2000 as his termination date.
Plaintiff alleges that he first learned of Ms. Parker's appointment as
the "disinterested designee" on November 28, 2000, when he received her
report agreeing that he should be terminated. Ms. Parker did not hold a
hearing and did not contact or talk with Mr. Barrow before issuing her
report. Ms. Graham had represented in the September 7, 2000 notice that
Mr. Barrow may receive a hearing, but Ms. Parker explained that her
mandate did not require her to hold a hearing. Mr. Barrow contends that
Ms. Parker should have conducted a hearing because he satisfied the
requirements of Section 1613.4 of the D.C. Personnel Regulations, which
provides that an employee is entitled to a hearing if (1) the proposed
action is termination, (2) there is a dispute of material fact, and (3)
the employee requests a hearing.
In her report, Ms. Parker addressed the seven grounds enumerated in
the January 18, 2000 notice of proposed termination rather than the
three grounds listed in the September 7, 2000 notice. The report does
not appear to address Mr. Barrow's written response of September 14,
2000. Indeed, it is not clear whether Ms. Parker was even aware of the
second notice of proposed termination issued by Ms. Graham on September
7, 2000 or of Mr. Barrow's response to the charges submitted on
September 14, 2000. Ms. Parker's report does not make reference to or
even acknowledge Ms. Cusick's original report in which all seven grounds
for Mr. Barrow's termination were found to be without merit. It is
unclear whether Ms. Parker was even aware that this report existed.
The purpose of a temporary restraining order is to preserve the status
quo for a limited period of time until the Court has the opportunity to
pass on the merits of the demand for a preliminary injunction. See
Warner Bros. Inc. v. Dae Rim Trading, Inc., 877 F.2d 1120, 1125 (2d Cir.
1989); Fernandez-Roque v. Smith, 671 F.2d 426, 429 (11th Cir. 1982). In
the absence of facts that would enable a court fully to assess the
merits of the parties' respective positions, a TRO may issue to preserve
the status quo and to prevent imminent harm until a hearing on the
request for a preliminary injunction may be held. See Warner Bros. Inc.
v. Dae Rim Trading, Inc., 877 F.2d at 1124. While the Court must still
consider the traditional four-part test for injunctive relief even at
the TRO stage, the short duration of a TRO, the imminence of the harm
and the failure of a respondent to provide any facts to counter a
petitioner's claims, taken together, may justify the grant of a TRO to
preserve the status quo.
While plaintiff raises numerous grounds for relief in his complaint
and motion for temporary restraining order, the Court need not reach
most of those issues until the preliminary injunction hearing. What
deeply troubles the Court at this stage, however, is the apparent total
lack of process afforded Mr. Barrow with respect to the decision to
terminate. If plaintiff's assertions of fact are true, Ms. Parker was
either totally unaware of or completely ignored the second notice of
proposed termination and Mr. Barrow's response to the three enumerated
charges. She denied Mr. Barrow a hearing despite the Personnel
Regulation's provision that he was entitled to one, and she made a
decision based on old facts and old allegations, all of which had been
rejected by a prior disinterested designee. It appears that Ms. Parker
did not have either the "complaint" setting forth the new charges or the
"answer" to those charges and failed to provide a hearing as required.
She nevertheless rendered a decision that will lead to Mr. Barrow's
termination today. If Mr. Barrow's allegations are true, the District
provided him no process at all before deciding to terminate his
employment. Moreover, because the defendants have had so little time to
respond to plaintiff's motion — and refused to grant a brief delay of the
effective date of termination in order to give itself time — counsel who
appeared in Court had no facts at their command and could not advise the
Court whether Mr. Barrow's assertions are true, partly true or false.
If the facts are as Mr. Barrow represents, there is a very high
likelihood that he will succeed on the merits of his claim. Under
plaintiff's version of the facts, the District utterly failed to provide
him with the process to which he was due both under the Constitution and
under the District of Columbia's own regulations. If Mr. Barrow is
correct, Ms. Parker did not consider the charges leveled against him in
the second notice of proposed termination or Mr. Barrow's response to
those charges. Instead, without the benefit of a hearing or without even
speaking to Mr. Barrow, Ms. Parker based her decision on the seven
charges that had already been found to be without merit by Ms. Cusick —
who had held a hearing — and that were withdrawn by Ms. Graham. Because
defendants refused to accept the Court's invitation to voluntarily
provide an administrative stay of termination and set a reasonable
briefing and argument schedule, defendants have put themselves in a
position where they are unable to refute these allegations. Because of
the high likelihood that Mr. Barrow will prevail on his procedural due
process claim under the facts as currently presented, this prong of the
four-part test weighs heavily in favor of granting the TRO.
The Court also finds that Mr. Barrow will suffer imminent and
irreparable harm if the Court does not grant his motion for a TRO. He
will lose his job today without the benefit of any due process
protections whatsoever. While this harm arguably may be insufficient to
meet the heightened standard required to prove irreparable
harm in government employment termination cases for the purposes of a
preliminary injunction, see Sampson v. Murray, 415 U.S. 61, 83-84,
94 S.Ct. 937, 39 L.Ed.2d 166 (1974), at the temporary restraining order
stage the harm alleged is sufficient. Because all that is involved here
is the preservation of the status quo for a short period of time until
the parties can fully brief the merits and marshal the evidence, the
possibility that government services will be disrupted is minimal and
the concerns expressed by the Supreme Court in Sampson are ...