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Robinson-Reeder v. American Council on Educ.

June 17, 2009

JACQUELINE T. ROBINSON-REEDER, PLAINTIFF,
v.
AMERICAN COUNCIL ON EDUC. DEFENDANT.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

This is a Title VII retaliation case brought by Jacqueline Robinson-Reeder ("plaintiff"), proceeding pro se, against her former employer, American Council on Education ("ACE" or "defendant"). Currently before the Court are a number of motions filed by plaintiff seeking: preliminary injunctive relief, appointment of counsel, sanctions against defendant's counsel, and leave to send defendant electronic delivery.*fn1 For the reasons stated below, the Court will deny plaintiff's motions.

I. Motions for Preliminary Injunctive Relief

Robinson-Reeder has filed [22] a motion for preliminary injunctive relief to prevent retaliation ("Pl.'s Mot. for Prelim. Inj.") and [26] an amendment to preliminary injunctive relief to prevent retaliation ("Pl.'s Am. Mot. for Prelim. Inj."). She contends that ACE has been retaliating against her by providing negative job references and telling prospective employers that she filed a charge of discrimination against ACE with the U.S. Equal Employment Opportunity Commission ("EEOC"). Pl.'s Mot. for Prelim. Inj. at 2. Robinson-Reeder seeks to enjoin this alleged conduct and she also asks the Court to order ACE "to give the plaintiff a simple standard job reference." Pl.'s Am. Mot. for Prelim. Inj. at 9. In response, ACE asserts that Robinson-Reeder cannot meet the legal standard for granting a preliminary injunction --particularly with respect to likelihood of success on the merits and irreparable harm. See Def.'s Opp'n to Mot. for Prelim. Inj. at 2-6.

"Injunctive relief, not usually available in employment cases, is an extraordinary remedy and must be sparingly granted." Rahman v. Johanns, 501 F. Supp. 2d 8, 19 (D.D.C. 2007). With that in mind, the standard for a preliminary injunction is well-established. To prevail, the moving party must demonstrate (1) a substantial likelihood of success on the merits, (2) that it would suffer irreparable harm without injunctive relief, (3) that an injunction would not substantially harm other interested parties, and (4) that issuance of the injunction is in the public interest. Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004); Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1317-18 (D.C. Cir. 1998).

It is particularly important for the moving party to demonstrate a substantial likelihood of success on the merits. See Am. Ass'n for Homecare v. Leavitt, 2008 WL 2580217, at *3 (D.D.C. June 30, 2008). Indeed, "[w]ithout any probability of prevailing on the merits, the Plaintiffs' purported injuries, no matter how compelling, do not justify preliminary injunctive relief." Am. Bankers Ass'n v. Nat'l Credit Union Admin., 38 F. Supp. 2d 114, 140 (D.D.C. 1999). The irreparable injury requirement also erects a very high bar for a movant. See Varicon Int'l v. OPM, 934 F. Supp. 440, 447 (D.D.C. 1996). A plaintiff must show that it will suffer harm that is "more than simply irretrievable; it must also be serious in terms of its effect on the plaintiff."

Gulf Oil Corp. v. Dept. of Energy, 514 F. Supp. 1019, 1026 (D.D.C. 1981). To warrant emergency injunctive relief the alleged injury must be certain, great, actual, and imminent. See Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985); see also Am. Ass'n for Homecare, 2008 WL 2580217, at *4. In this jurisdiction, harm that is "merely economic" in character is not sufficiently grave under this standard. See Wisconsin Gas, 758 F.2d at 674; Boivin v. US Airways, Inc., 297 F. Supp. 2d 110, 118 (D.D.C. 2003); Mylan Pharms., Inc. v. Shalala, 81 F. Supp. 2d 30, 42 (D.D.C. 2000).

Despite the importance of likelihood of success on the merits and irreparable harm, the four factors "are not considered in isolation from one another, and no one factor is necessarily dispositive as to whether preliminary injunctive relief is warranted. Rather, the factors interrelate on a sliding scale and must be balanced against each other." Morgan Stanley DW Inc. v. Rothe, 150 F. Supp. 2d 67, 72 (D.D.C. 2001) (internal quotations and citations omitted). "If the plaintiff makes a particularly weak showing on one factor, however, the other factors may not be enough to 'compensate.'" Id. at 73; see also Hunter v. FERC, 527 F. Supp. 2d 9, 14 (D.D.C. 2007); Dodd v. Fleming, 223 F. Supp. 2d 15, 20 (D.D.C. 2002).

Injunctive relief is not warranted here because Robinson-Reeder can demonstrate neither a substantial likelihood of success on the merits nor irreparable harm. Robinson-Reeder has presented no evidence in support of her claim that ACE has been providing negative job references. All that she has presented is inadmissible hearsay and her own speculative and unsupported assertions. See, e.g., Pl.'s Mot. for Prelim. Inj. at 3 ("Plaintiff has been informed by employment agencies" that ACE has posted "injurious information of plaintiff being fired for rude and unprofessional behavior" on an internet database used for checking references.); Pl.'s Am. Mot. for Prelim. Inj. at 5 (claiming that a prospective employer's communication with Coleen Collins, ACE's Assistant Vice President, Human Resources and Operations Services, "caused the non-hire of plaintiff"); Pl.'s Mot. for Prelim. Inj. at 3 ("The defendant has hidden behind doors of the Human Resources Department on 1 Dupont Circle, N.W., Washington, D.C., informing potential employers during reference checks of the plaintiff's protected activity 'EEOC complaint filed.'"). By contrast, ACE has provided a sworn declaration from Collins stating that "ACE has not given any negative references regarding Ms. Robinson-Reeder to prospective employers." Collins Decl. ¶ 6. Consequently, plaintiff has failed to demonstrate any, let alone a substantial, likelihood of success on the merits.

As this Court has recognized, when a plaintiff "has not established a likelihood of success on the merits, its showing of irreparable harm must be very strong." Apotex, Inc. v. FDA, Civ. A. No. 06-0627, 2006 WL 1030151, at *16 (D.D.C. Apr. 19, 2006). Robinson-Reeder cannot make such a showing. According to Robinson-Reeder, her injuries stem from the alleged negative job references given by ACE and its refusal to provide a "standard job reference," which have, in her view, prevented her from finding employment. She asserts that injunctive relief "is necessary to preserve the ability to gain employment/income." Pl.'s Mot. for Prelim.

Inj. at 5. Hence, this case is, as ACE correctly asserts, a typical case for economic damages. See Def.'s Opp'n to Mot. for Prelim Inj. at 5. In the absence of exceptional circumstances, which are not present here, the law is clear that injunctive relief is simply not appropriate in this type of case. See Wisconsin Gas, 758 F.2d at 674.

Given Robinson-Reeder's failure to demonstrate any likelihood of success on the merits or any irreparable harm, even a substantial showing on the remaining two factors would be insufficient to justify the extraordinary relief that she seeks.*fn2 Therefore, her motions for injunctive relief will be denied.

II. Motions for Court Appointed Counsel

Plaintiff has also filed [29] a motion for court appointed attorney ("Pl.'s Mot. for Court Appointed Atty.") and [44] a motion for court appointed attorney for discovery and extension of time for replying to required disclosures ("Pl.'s Sec. Mot. for Court Appointed Atty.").*fn3 ACE has not opposed either of these motions. Nevertheless, the Court must examine whether Robinson-Reeder is entitled to have counsel appointed pursuant to the relevant provision of Title VII, 42 U.S.C. ยง 2000e--5(f)(1). That provision states that "[upon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant." Although this "provision gives plaintiffs a right to request representation, it does not create a statutory right to have counsel actually appointed." Poindexter v. Fed. Bureau of Investigation, 737 F.2d 1173, 1179 (D.C. Cir. 1984). Rather, "[the decision to appoint rests in the sound discretion of the trial judge." Id. The language of the statute, however, "offers little direction to lower courts confronted with such requests." Id. Due to this lack of statutory guidance, the D.C. Circuit has articulated several factors for courts to consider when ...


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