

                  United States Court of Appeals                            United States Court of Appeals
                      For the First Circuit                                For the First Circuit

                                           

  No.  97-1090

                       VINCENT DENOVELLIS,

                      Plaintiff, Appellant,

                                v.

    DONNA E. SHALALA, SECRETARY OF HEALTH AND HUMAN SERVICES, 

                       Defendant, Appellee.
                                           

  No.  97-1091

                         PAUL H. KELLEY,

                      Plaintiff, Appellant,

                                v.

    DONNA E. SHALALA, SECRETARY OF HEALTH AND HUMAN SERVICES, 

                       Defendant, Appellee.
                                           

  No.  97-1092

                    LAURENTINA JANEY-BURRELL,

                      Plaintiff, Appellant,

                                v.

    DONNA E. SHALALA, SECRETARY OF HEALTH AND HUMAN SERVICES, 

                       Defendant, Appellee.
                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

            [Hon. Patti B. Saris, U.S. District Judge]                                                               
                                           

                              Before

                      Stahl, Circuit Judge,                                                    
                  Bownes, Senior Circuit Judge,                                                        

                    and Lynch, Circuit Judge.                                                      

                                           

       Phyllis Fine Menken for appellant  Janey-Burrell.  Jodie                                                                         
  Grossman for appellants DeNovellis and Kelley.                    

       John A. Capin, Assistant U.S. Attorney, with whom Donald                                                                         
  K. Stern, United States Attorney, was on brief for appellee.                    

                                           

                         January 29, 1998
                                           

                               -3-                                          3

            LYNCH,  Circuit  Judge.   During  the  course  of a                      LYNCH,  Circuit  Judge.                                            

  nationwide restructuring of  the United States Department  of

  Health and Human  Services (HHS) in 1996,  the Administration

  for  Children  and  Families  reorganized  its  ten  regional

  offices  into five major  "hub" offices and  adjunct offices.

  Although  Boston has been  affectionately referred to  as the

  "Hub of  the Universe," the  Boston field office lost  out to

  larger urban centers and was not designated a hub office.  As

  a result, the Boston office  was directed to shrink its size,

  and  did so  by reorganizing  from  two levels  of managerial

  employees  to  one,  accomplishing  this  by  eliminating its

  middle management positions. Five middle management employees

  in  the  Boston  office  were  given  the  option  of  either

  accepting  a demotion or  laterally transferring to  the same

  positions at locations other than Boston.  

            Three of these  employees, Vincent DeNovellis, Paul

  Kelley, and Laurentina Janey-Burrell, sued HHS for violations

  of Section 704 of Title VII of  the Civil Rights Act of 1964,

  42  U.S.C.   2000e-3(a), the Age Discrimination in Employment

  Act (ADEA), 29 U.S.C.    621-34, and the Civil Service Reform

  Act  of  1978 (CSRA),  Pub.  L.  No.  95-454, 92  Stat.  1111

  (codified as amended in various sections of 5 U.S.C.), saying

  that  the  proposed  reassignments  constituted  illegal  age

  discrimination by  forcing  them to  retire prematurely,  and

  that  HHS  violated  the  CSRA by  failing  to  follow proper

                               -3-                                          3

  procedures  for  a  reduction-in-force.    Janey-Burrell  and

  DeNovellis  also  said that  the reassignment  decisions were

  made in retaliation for prior EEO claims they had filed which

  alleged racial discrimination by their supervisor.  

            The plaintiffs have chosen as their battlefield the

  equitable plains  of preliminary injunctive relief, and there

  they falter.  All three lost in their applications before the

  district court for issuance  of preliminary injunctions under

  Fed. R. Civ. P. 60(b).   Although Janey-Burrell obtained from

  a different  district  court judge,  under  Fed. R.  Civ.  P.

  62(c), a stay pending appeal of the denial of the preliminary

  injunction, which the parties have treated as freezing Janey-

  Burrell  into  her  pre-reassignment  position  pending  this

  appeal,  that stay is  not the subject of  this appeal -- nor                                                                   -

  could it be by its own terms.  This appeal is from the denial

  of the preliminary injunctions under  Fed. R. Civ. P.  60(b).

  In the interim, DeNovellis and Kelley have retired.    

            We affirm.  The claims of DeNovellis and Kelley for

  preliminary injunctive relief  are now moot because  of their

  retirement.  As for Janey-Burrell, the district court did not

  abuse its discretion in denying the injunction.

                                I                                          I

            We  describe the facts as to Janey-Burrell; we need

  not  discuss DeNovellis and  Kelley because their  claims are

  moot.  

                               -4-                                          4

            In  1993,   Vice  President  Gore   instituted  the

  National Performance Review, which attempted  to make federal

  agencies  more cost-efficient and  responsive to  the public.

  Many HHS agencies  have since undergone extensive  review and

  reorganization, including the Administration for Children and

  Families (ACF),  which administers  over sixty federal  human

  service  programs, including Head  Start and Aid  to Families

  with Dependent  Children.  In  1994, HHS initiated a  plan to

  streamline  the ACF  bureaucracy by  reducing  the number  of

  administrative  centers from ten regional offices to five hub

  offices.   The  five  regional offices  not  selected as  hub

  offices,  including  Boston,   were  directed  to   eliminate

  management  positions and reorganize  so they would  have one

  level of  management instead  of the extant  two levels.   In

  October  1994,  the  Boston  office  implemented  a  plan  to

  reorganize  into five  goal-driven work-groups  in accordance

  with the five goals of the ACF reorganization plan.  The five

  goal  leaders  and  the  Deputy  Regional  Administrator  now

  comprise  the sole management level at the Boston ACF office.

  The five goal  leaders and the Deputy  Regional Administrator

  are all over forty years of age.

            Plaintiff Janey-Burrell was  a mid-level manager at

  ACF  at the  GS-14 level  prior  to the  reorganization.   In

  November  1993,  Janey-Burrell  had  filed  an EEO  complaint

  against her supervisor, Regional Administrator Hugh Galligan,

                               -5-                                          5

  and the  Assistant Regional Administrator,  Richard Stirling,

  alleging  race and  gender discrimination.    In April  1994,

  Regional Administrator Hugh Galligan reassigned Janey-Burrell

  from her position of record to a temporary assignment without

  specific duties.  In July 1994, Janey-Burrell filed  a second

  EEO   complaint  against  Galligan  when  he  placed  her  on

  temporary  assignment,  alleging  that  this  action  was  in

  retaliation  for having  filed her  first EEO complaint.   In

  October 1994, when the Boston regional office implemented its

  reorganization plan,  Janey-Burrell was  not chosen  to be  a

  goal leader.   Along  with the  other mid-level  managers not

  selected  to be  goal leaders, Janey-Burrell  was permanently

  placed  on  temporary   assignment  pending  reassignment  to

  another permanent position within  the agency.  Janey-Burrell

  was assigned  to the  Office of  Regional Director Philip  W.

  Johnston,  where  she  served  as the  Department's  Violence

  Prevention and Community Based Program Coordinator.  

            During  1995 and  1996, in  order  to continue  the

  streamlining  process, the Boston office sought volunteers to

  relocate to other offices around the country.  Four employees

  volunteered to  relocate, but  Janey-Burrell did  not.   This

  left  five  GS-14  mid-level managers  remaining  within  the

  Boston office who had not been chosen to be goal leaders  and

  whose positions were being eliminated by  the reorganization.

  In  June  1996,  Diann Dawson,  the  ACF  Regional Operations

                               -6-                                          6

  Director, decided to impose "directed reassignments" on those

  five  remaining GS-14  mid-level  managers, including  Janey-

  Burrell,  to equivalent positions  in the hub  offices around

  the country.  

            On June 11, 1996, Dawson wrote a letter to the five

  middle-managers in which she  proposed their reassignment  to

  different  locations.     Dawson's  letter  to  Janey-Burrell

  proposed that  Janey-Burrell fill a vacancy in the ACF office

  in San Francisco.  The others were asked to fill vacancies in

  Chicago, Dallas,  New York,  and Atlanta.   Dawson  requested

  that Janey-Burrell  and the  others respond  to the  proposed

  reassignments within fifteen  days of receipt of  the letter.

  Janey-Burrell responded by letter on  June 24, 1996, in which

  she rejected the reassignment.  Among her reasons was that it

  would  be harder  for her  to pursue  her EEO  claims against

  Galligan were she in San Francisco instead of Boston.

            On July  9, 1996,  Janey-Burrell received  Dawson's

  response.    Dawson  said  she  had  received Janey-Burrell's

  letter  and  had  considered  Janey-Burrell's  objections  to

  reassignment.  Dawson  wrote she had nevertheless  decided to

  reassign Janey-Burrell to San  Francisco effective August 18,

  1996.

            On August 13,  1996, Janey-Burrell was offered  the

  option of staying in Boston.  Before this date, one mid-level

  manager had enquired  as to whether she could  stay in Boston

                               -7-                                          7

  if  she took a downgrade to a non-supervisory GS-13 position.

  This request was  granted and Galligan, unsolicited,  wrote a

  letter to Janey-Burrell notifying her that this had happened.

  He concluded, "If  you are interested in doing  the same, let

  me  know."    For Janey-Burrell,  this  downgrade  would have

  allowed  her to  stay  in Boston  in  a GS-13  position at  a

  $13,000 reduction in annual pay.   On August 16, 1996, Janey-

  Burrell filed a complaint  with the district court seeking  a

  temporary restraining order and preliminary injunctive relief

  to prevent her  reassignment.  Chief Judge Tauro  granted the

  temporary restraining order.

            On   September   30,  1996,   Judge   Saris  denied

  plaintiff's   application  for   a  preliminary   injunction.

  Plaintiff  filed a  notice of  appeal and  a motion  for stay

  pending  appeal under Fed. R. Civ. P. 62(c).  On November 22,

  1996, the motion was heard by Judge Gertner, to whom the case

  had been transferred,  who granted the stay  pending appeal.1

  Janey-Burrell has remained in her GS-14 supervisory  position

  since  that time, even though ACF has otherwise completed its

                                                      

  1.  The dissent  argues that  Judge Gertner's  ruling was  in
  effect  a  reconsideration  of Judge  Saris's  denial  of the
  injunction under Fed R. Civ. P. 60(b).  But Judge Gertner did
  not purport  to grant relief under Rule 60(b); she explicitly
  stated that she was granting  relief pending the appeal under
  Rule  62(c).   A  new  district court  judge  in  a case  may
  reconsider a prior denial of  a preliminary injunction.  If a
  court wishes to  reconsider an earlier ruling under  the Rule
  60(b) power,  however, it should  be explicit about it.   The
  new district court  judge here explicitly did  not reconsider
  the prior ruling.

                               -8-                                          8

  reorganization.  The defendants have informed this court that

  the choice of  going to San Francisco or  remaining in Boston

  as a GS-13 employee is still open to her. 

                                II                                          II

            Janey-Burrell's  claim   fails  for  a   number  of

  reasons.     As  the  district   court  found,  she  has  not

  demonstrated  irreparable  injury  and, save  for  her  civil

  service  claims (as  to  which  she  has  not  exhausted  her

  administrative   remedies),   she    has   not   demonstrated

  probability of  success on  the merits. We  do not  reach the

  other criteria for injunctive relief.  

  A.  Preliminary Injunction Standard                                               

            We  repeat and apply here the familiar standard for

  issuance  of preliminary injunctive relief.  A district court

  must weigh four factors:   (1) the likelihood of the movant's

  success on the merits; (2) the potential for irreparable harm

  to the  movant; (3)  a balancing  of  the relevant  equities,

  i.e., the hardship to the nonmovant  if the injunction issues

  as  contrasted with  the hardship  to  the movant  if interim

  relief is withheld; and (4) the effect on the public interest

  of  a grant  or denial  of  the injunction.    See Gately  v.                                                                     

  Massachusetts, 2 F.3d 1221, 1224  (1st Cir. 1993).  The party                         

  appealing a grant or denial of a preliminary injunction bears

  the heavy burden of showing that the district court committed

  a mistake of law or abused its discretion.  See id. at 1225.                                                               

                               -9-                                          9

            This case implicates two  related standards for the

  issuance of injunctive  relief in employment law  cases.  The

  first  standard  governs  issuance  of  injunctive relief  on

  claims  by  federal  government  employees  that  their civil

  service rights  have been violated.   This  is controlled  by

  Sampson v. Murray, 415 U.S.  61 (1974), which requires a very                             

  strong showing of irreparable injury.  This strong showing is

  on  account of the "well-established rule that the Government

  has traditionally  been granted  the widest  latitude in  the

  dispatch of its  own internal affairs."  Id.  at 83 (citation                                                        

  and  internal quotation marks  omitted).  Sampson  stands for                                                             

  the  proposition that,  before enjoining a  government agency

  from   dismissing  a  civil  service  employee  who  has  not

  exhausted her administrative remedies, a court must find that

  the   facts   underlying   the   employee's  allegations   of

  irreparable  harm are genuinely extraordinary.  See Gately, 2                                                                      

  F.3d at  1232; see also,  Chilcott v. Orr,  747 F.2d  29 (1st                                                     

  Cir. 1984) (applying  Sampson in denial of  injunction sought                                         

  by plaintiffs  being discharged  from Air Force  who did  not

  first seek relief before appropriate Air Force administrative

  boards); cf. United  States v. Fausto,  484 U.S. 439,  454-55                                                 

  (1988) (applying similar  principles in claim for  back pay);

  Bush v. Lucas, 462 U.S. 367, 388-389 (1983) (applying similar                         

  principles in claim to reverse demotion).

                               -10-                                          10

            The second standard  governs issuance of injunctive

  relief  in   discrimination  claims  brought   by  government

  employees where no civil service  claim is involved.  In this

  circuit, this is controlled by Gately, which does not require                                                 

  as high  a showing of irreparable  harm as Sampson.   That is                                                              

  because  of  the  different policies  and  circumstances that

  attend discrimination cases,  particularly where no interests

  in protecting the processes  of the civil service system  are

  involved. See Gately, 2 F.3d at 1233-34.2                                  

                                                      

  2.  We  agree that  there  is  a  strong  legislative  policy
  prohibiting  discrimination based on  age and other forbidden
  factors.   The prohibiting  of retaliation against  those who
  bring discrimination claims,  while not primarily vindicating
  such   anti-discrimination   policies,    is   important   in
  effectuating them.   See Tanca v. Nordberg, 98  F.3d 680 (1st                                                      
  Cir. 1996)  (mixed motive provisions  of Civil Rights  Act of
  1991, which apply to  discrimination claims, do not  apply to
  retaliation claims).   The issue  here is  not whether  these
  policies are important,  they plainly are, but the  extent to
  which  they alter  the rules  as to  issuance  of preliminary
  injunctive relief where the full  array of remedies to combat
  age discrimination and  retaliation is available  after trial
  on the merits.  
      In  this circuit,  the rules  governing  the issuance  of
  injunctive relief are not altered because the plaintiff makes
  a discrimination claim.   Such plaintiffs must  still satisfy
  the  traditional test in  order to obtain  injunctive relief.
  See Equal Employment  Opportunity Comm'n v. Astra  USA, Inc.,                                                                        
  94 F.3d  738 (1st  Cir. 1996).   In  Astra, the  question was                                                      
  whether the  EEOC was required  to meet the  traditional test
  for injunctive relief or whether  it needed only satisfy  the
  criteria  established  in    706(f)(2)  of  Title  VII, which
  authorized the agency to seek injunctive relief in the public
  interest.   We flatly  rejected the  views of  other circuits
  that the traditional test could be relaxed in that situation,
  holding  that even the EEOC was  required to show irreparable
  harm and the inadequacy of  legal remedies in order to obtain
  a preliminary  injunction.   See Astra, 94  F.3d at  743; see                                                                         
  also Cohen v. Brown University,  991 F.2d 888 (1st Cir. 1988)                                          
  (requiring  traditional  test  to be  satisfied  in  Title IX

                               -11-                                          11

            Gately holds  that a  government-employee plaintiff                            

  may  obtain  injunctive  relief,  in   the  district  court's

  discretion, upon  demonstrating sufficient  irreparable harm,

  taking  into consideration  "the wide  latitude traditionally

  granted  the  government  in  dispatching  its  own  internal

  affairs."  Gately, 2 F.3d at 1234.  In contrast, here, we are                             

  faced with the question of whether the  district court abused

  its discretion in refusing to grant injunctive relief against                                      

  the government -- a much easier question.

            In  this case involving  both civil  service claims

  and  discrimination claims,  the  question may  arise whether

  Sampson or Gately presents the proper standard for a district                             

  court to apply.3  We need not consider this question until it

  is  squarely  before  us.    Even  under  the  lesser  Gately                                                                         

  standard, the district  court was well within  its discretion

  in refusing  to grant  a preliminary  injunction against  the

  government in this case.

  B.  Irreparable Injury                                  

            On  appeal,   Janey-Burrell  bases  her   claim  of

  irreparable injury on five grounds:  she will suffer a salary

                                                      

  suit); Castro v. United States,  775 F.2d 399 (1st Cir. 1985)                                          
  (requiring  traditional test to  be satisfied in  ADEA suit).
  If the EEOC itself is  required to meet the traditional test,
  then Janey-Burrell must be as well.

  3.  Gately squarely holds that  Sampson's heightened standard                                                   
  is not limited to probationary employees, see id. at 1232-33,                                                             
  as the dissent would have.

                               -12-                                          12

  loss  of $13,000  if she  stays  in Boston;  she will  suffer

  emotional distress;  there will  be a  loss of  prestige; her

  ability to work with counsel on pursuit of her claims will be

  impaired if  she is  in San  Francisco;  and the  lack of  an

  injunction will  have a chilling  effect on others  who would

  understand  this  job action  to  be in  retaliation  for her

  complaints   of  discrimination.    Neither  in  sum  nor  in

  individual  parts  do  these factors  amount  to  irreparable

  injury on the facts of this case.

            We start with  the obvious.  It  is Janey-Burrell's

  choice whether she  accepts the transfer to  San Francisco or

  whether she remains in  Boston at a  reduced salary.  If  she

  accepts the transfer,  there is no diminution in  pay or loss

  of status.    If she  stays  in  Boston, she  will  suffer  a

  diminution  in pay,  but will  recover  all of  that pay  and

  perhaps other  damages if she  prevails on the merits.   Even

  under  traditional Rule  65 standards,  a  temporary loss  of

  income   which  may  be  recovered  later  does  not  usually

  constitute  irreparable injury.  See Sampson, 415 U.S. at 89-                                                        

  92; Gately, 2 F.3d at 1232.                        

            In  addition,   while  Janey-Burrell   may  recover

  compensation for her emotional distress claim if she prevails

  on   the  merits,   the   fact  that   an  employee   may  be

  psychologically  troubled by an  adverse job action  does not

  usually constitute  irreparable injury  warranting injunctive

                               -13-                                          13

  relief.   See Soldevila v. Secretary of Agriculture, 512 F.2d                                                               

  427, 430 (1st Cir. 1975).  Janey-Burrell's assertion that she

  will  suffer  a  loss  of  status,  even  if  true,  is  also

  insufficient to show irreparable injury, as HHS has given her

  a  perfectly plausible explanation as to  the reasons for the

  job action.  This case, where a plausible explanation for the

  job loss is given, is considerably weaker than Sampson, where                                                                  

  no explanation was  given and the harm to  reputation from an

  unexplained discharge was  not enough  to create  irreparable

  injury. 

            We  are  left  with  the  arguments  about chilling

  effect  and  interference  with  the  ability  to  work  with

  counsel.  The breadth of  these arguments proves too much and

  has little  attraction.  A  chilling effect  argument may  be

  made in  every case  alleging retaliation.  It cannot be  the

  rule that  irreparable injury  may be  established simply  by

  bringing a  retaliation claim  and then  saying that  interim

  relief  is necessary to prevent others from being intimidated

  from  contributing to  the plaintiff's  case  or from  filing

  their own claims.  Here, Janey-Burrell did not offer one whit

  of evidence as to any chilling  effect nor did she argue  the

  point in her  motions for preliminary injunction  or for stay

  pending appeal.4  Rather, the chilling effect issue was first

                                                      

  4.  We do not reach the question of whether Janey-Burrell has
  waived this argument in light of our disposition. 

                               -14-                                          14

  raised sua  sponte  by the  second  district court  judge  in

  issuing  the stay  pending appeal.    Plaintiff is  basically

  arguing for a per se rule that a conclusory assertion made by

  the  plaintiff for  the  first time  in  appellate briefs  is

  sufficient  to  establish  a chilling  effect  and  to obtain

  injunctive relief.  We reject that notion and the notion that

  plaintiff need adduce no evidence on this point.

            This  is not  to say  that a retaliation  claim may

  never give rise to a  showing of irreparable injury, but only

  that it  is a  highly fact  specific inquiry.    See Holt  v.                                                                     

  Continental Group,  Inc., 708 F.2d  87, 90-91 (2d  Cir. 1983)                                    

  (allegations  of chilling effect subject to Sampson standards                                                               

  in  cases involving the  federal government); EEOC  v. Anchor                                                                         

  Hocking  Corp.,  666  F.2d  1037,  1043-44  (6th  Cir.  1981)                          

  (examining allegations of chilling effect in light of facts);

  Bonds v. Heyman, 950 F. Supp.  1202, 1215 n. 13 (D.D.C. 1997)                           

  (explaining Holt as  requiring that chilling effect  in cases                            

  involving the  federal government  must be  "likely" and,  in

  combination with other  circumstances, "extraordinary").5  In

                                                      

  5.  The dissent  cites Marxe  v. Jackson,  833 F.2d  1121 (3d                                                    
  Cir.  1987)  in  support  the  position  that  the  potential
  chilling  effect in this  case constitutes  irreparable harm.
  In  Marxe, the  plaintiff was  fired by her  employer against                     
  whom she had previously filed  EEO charges.  She subsequently
  brought  suit for  retaliatory firing.    The district  court
  granted a preliminary injunction and required the employer to
  reinstate the plaintiff during the litigation in part because
  of concern  about the  potential chilling  effect that  might
  otherwise  occur.   See  id.  at  1124.   The  Third  Circuit                                        
  reversed.  The court said that plaintiff had failed to adduce

                               -15-                                          15

  any event, the chilling effect argument made by Janey-Burrell

  goes  primarily  to  the  effect on  third  parties,  not  to

  plaintiff's own  injury.  In  this case, that argument  as to

  the effect  on third  parties must be  viewed in  the context

  that  the federal  government  will  be  deeply  affected  by

  judicial  interference  with  its efforts  to  streamline its

  operations,  particularly   where  the  streamlining   is  in

  response to  pressure from  voters to  do so.   There  are no

  facts  here to  support anything  other  than a  hypothetical

  chilling effect, and that is plainly inadequate.  Considering

  the  arguments before  Judge  Saris, we  can  say with  great

  confidence that she did not abuse her discretion in  refusing

  to grant interim equitable relief.

            As to the  effect of a transfer  on Janey-Burrell's

  ability to work with counsel, every case involving a transfer

  to  another  location  involves  this effect.    There  is no

  irreparable  injury on this factor alone; many litigants have

  counsel in other  locations and  the Federal  Rules of  Civil

  Procedure  were designed  to permit discovery  throughout the

  land.   More  importantly, it  is  Janey-Burrell's choice  to

  accept the  transfer or  stay  in Boston.   If  Janey-Burrell

  chooses not  to accept the  transfer, she will be  located in

  Boston with her counsel.

                                                      

  any  evidence that  a chilling  effect might  occur  and that
  consequently there was no irreparable harm.  See id. at 1125-                                                                
  26.

                               -16-                                          16

  C.  Probability of Success                                      

            Janey-Burrell has three claims under the ADEA:  the

  transfers  would   effect  an   impermissible  discriminatory

  impact; she suffered disparate treatment; and the decision to

  transfer her  was motivated by  retaliation.  Only  the third

  theory  warrants  much discussion.    As  to  the  first  two

  theories, Judge Saris has appropriately noted: 

            [T]he  evidence  demonstrates   that  two
            employees  over  sixty   were  reassigned
            while  two  over sixty  were  retained as
            group  leaders.     The  Deputy  Regional
            Administrator is  a sixty-four  year old.
            One   forty-something   year    old   was
            reassigned, while  another was  retained.
            A  fifty-eight  year old  was  reassigned
            while a fifty-two year  old was retained.
            These  statistics  are  not  adequate  to
            support    an    inference    that    the
            reassignment   decision   was   based  on
            discriminatory age-based criterion.

  DeNovellis  v. Shalala,  No. 96-11655-PBS  at  8-9 (D.  Mass.                                  

  Sept.  30,  1996)  (order  denying  preliminary  injunction).

  Other than the  statistics, there is little  evidence, direct

  or indirect, of discriminatory intent.6

                                                      

  6.  We note the civil service process may work to plaintiff's
  favor   in  that  she  may  have  an  administrative  remedy.
  Notably, Judge Saris found Janey-Burrell had a probability of
  success on her CSRA claim.  Even so, in  Sampson, the Supreme                                                            
  Court stated  that the  avoidance  of the  disruption of  the
  civil service administrative process was a significant factor
  against issuing  injunctive relief in  cases involving  civil
  service claims.   See Sampson,  415 U.S. at 83-84;  see also,                                                                        
  Bush v.  Lucas, 462 U.S.  367 (1983)  (assuming violation  of                          
  First Amendment  and declining  to create  judicial cause  of
  action which would circumvent  civil service review);  Arnett                                                                         
  v. Kennedy, 416  U.S. 134 (1974) (no  constitutional right to                      
  hearing  prior to  suspension  or  discharge from  government

                               -17-                                          17

            As  to the  retaliation claims,  in  order to  show

  probability of  success,  Janey-Burrell  must  establish  the

  existence of  a causal connection between her  filing the two

  EEO complaints  and the  subsequent choice  she is  forced to

  make between transfer or demotion.7  See Randlett v. Shalala,                                                                        

  118 F.3d 857,  862-63 (1st Cir. 1997); Fennell  v. First Step                                                                         

  Design,  Ltd., 83  F.3d 526,  535  (1st Cir.  1996).   Janey-                         

  Burrell offers little evidence of such a causal relationship.

  Mere conjecture and unsupported allegations will not suffice.

  Rather,  she must demonstrate the existence of specific facts

  that  would enable a finding that explanatory reasons offered

  by the government for her proposed transfer were mere pretext

  for  its true  motive of  retaliation against  her.   See St.                                                                         

  Mary's  Honor Ctr.  v.  Hicks, 509  U.S.  502 508-12  (1993);                                         

  Mesnick v. General Elec. Co.,  950 F.2d 816, 822-29 (1st Cir.                                        

  1991).  She falls short  of showing probability of success on

  the present record.8  

                                                      

  service even for a non-probationary employee).

  7.  If plaintiff wins  on her retaliation claim, she  will be
  compensated  and  her   attorneys  will  receive   reasonable
  attorney's fees.   Congress has chosen the  route of awarding
  attorneys   fees   to   successful   plaintiffs   to   dispel
  disincentives to the bringing of meritorious suits.

  8.  Janey-Burrell  claims  she  was subject  to  two  acts of
  retaliation, the first coming when Galligan detailed her to a
  temporary  assignment in April  1994, the second  coming when
  she   was  given  the  choice  between  transferring  to  San
  Francisco or staying  in Boston.  Judge Saris  focused on the
  first act  of  claimed retaliation  and  appropriately  found
  Janey-Burrell  had not shown a probability of success because

                               -18-                                          18

            On the same date  that Janey-Burrell was reassigned

  to San Francisco, the four other middle managers on temporary

  assignment were also  reassigned to other  cities.  Each  was

  given  the  same  choice  of  accepting  reassignment  or  of

  accepting a downgrade.  Three  of the five had not previously

  filed any discrimination complaint.9  Even if the evidence is

  read to suggest a degree of personal animosity between Janey-

  Burrell and  Galligan, that  animus did not  cause her  to be

  treated  any  differently  than  her similarly  situated  co-

  workers.  Further,  personal animosity may have  many origins

  other  than a  desire to  retaliate.   The decision  made was

  categorical, not individual.10   All five GS-14  managers not

  selected to  be a  goal leader had  been placed  on temporary

  assignment in October  1994.  All five were  given the choice

  of being reassigned to an equal position in another city or a

                                                      

  she was  ultimately assigned  to a  significant position,  as
  Violence Prevention and Community  Based Program Coordinator,
  in the office of former regional director Philip W. Johnston.

  9.  DeNovellis filed a  claim of discrimination which  he has
  lost  on the merits.  See DeNovellis v. Shalala, 124 F.3d 298                                                           
  (1st Cir. 1997).

  10.  Galligan  made  recommendations  as  to   who  would  be
  selected  to  be  a  goal  leader  in  the  reorganized  ACF.
  Galligan's affidavit states that he made  the recommendations
  without regard to age, race, or ethnicity, and without regard
  to whether any of the candidates had filed EEO claims against
  him.   The record  shows that  the five  selected to  be goal
  leaders are all  over forty years of age,  include both women
  and  men,  and  both African-Americans  and  whites.   Janey-
  Burrell  offers no  evidence  suggesting  that  Galligan  was
  motivated by discriminatory  animus or a desire  to retaliate
  in making these recommendations.

                               -19-                                          19

  demotion  while staying  in Boston  in June  1996.   All were

  given the opportunity to respond to the proposed reassignment

  as  well.   Those  responses  were reviewed  by  the Regional

  Director, not Galligan, and she, not Galligan, made the final

  decision   to  reassign  (even  assuming  Galligan  had  some

  influence).  The Regional Director was also uninvolved in the

  prior claims  of discrimination.  Under  these circumstances,

  proof of  causation is  insufficient to  show probability  of

  success, as is required for preliminary injunctive relief.

                                III                                          III

            After   losing   their  motions   for   preliminary

  injunction, DeNovellis  and Kelley  chose to  retire.   Their

  claims for preliminary  injunctive relief are moot.   See New                                                                         

  Hampshire Right to Life Political Action Comm. v. Gardner, 99                                                                     

  F.3d 8, 17-18 (1st Cir. 1996).

                                IV                                          IV

            The  orders   of   the   district   court   denying

  preliminary  injunctive relief are affirmed; the "stay" as to

  Janey-Burrell is ended.  Costs to appellees.

                                Dissent follows.

                               -20-                                          20

            BOWNES,  Senior  Circuit  Judge  (dissenting).    The                      BOWNES,  Senior  Circuit  Judge  (dissenting).                                                     

majority  concludes that  plaintiff Janey-Burrell  has failed  to

demonstrate  irreparable injury and probability of success on the

merits, both of which are, of course, necessary for a preliminary

injunction.   I  disagree with  the majority  on both  issues and

therefore respectfully dissent.

                                I                                          I

            Before discussing the application of the  irreparable

injury  requirement  to  Janey-Burrell,  I  must  first  note  my

disagreement  with the standard the majority applies in assessing

whether  a preliminary  injunction  should be  granted in  a case

asserting discrimination under  Title VII of the Civil Rights Act

of  1964 (Title  VII),  42  U.S.C.    2000e,  and  under the  Age

Discrimination in Employment Act (ADEA), 29 U.S.C.    621-34.

            I  believe a government employee in such cases should

be held to the  same standard as a private sector  employee under

like circumstances.   The standard that should be  applied to all

employees  -- whether  they work  for the  government or  for the

private sector  -- is  the "familiar  [four-factor] standard  for

issuance of preliminary injunctive relief":  irreparable  injury,

likelihood of success  on the merits, balancing the equities, and

the public interest.  See ante at 9.                                        

            There  is  no  reason  to  treat  the  government  as

employer any differently than a private employer when it comes to

discrimination  under Title VII  or the ADEA.   Discrimination by

governmental employers is  at least as serious  as discrimination

                               -21-                                          21

by  non-governmental employers.   See Olmstead v.  United States,                                                                          

277 U.S. 438, 485 (1928) ("In  a government of laws, existence of

the government  will be imperiled if it  fails to observe the law

scrupulously.   Our  government is  the  potent, the  omnipresent

teacher.  For good or for ill, it teaches the whole people by its

example. . . .  If the government becomes a lawbreaker, it breeds

contempt for law.") (Brandeis, J., dissenting).   

                                A                                          A

            The majority  envisions three separate tests  for the

issuance   of  a   preliminary  injunction,   depending  on   the

circumstances.  The "familiar [four-factor] standard," ante at 9,                                                                     

without any additional  hurdle, would apply to the ordinary case,

presumably  including a  discrimination  case against  a  private

sector employer.  

            The majority would  apply a second standard  in cases

involving  government employees  asserting  only "civil  service"

claims under the Civil  Service Reform Act  of 1978, Pub. L.  No.

95-454, 92 Stat. 1111 (codified as amended in various sections of

5  U.S.C.) (CSRA).   Such employees would  be required  to make a

"genuinely extraordinary"  showing of irreparable  injury, as set

forth in Sampson  v. Murray, 415  U.S. 61, 92  n.68 (1974).   See                                                                           

                               -22-                                          22

ante at 10.  I agree with the majority's analysis to this point.1              

            In between the foregoing  two standards, the majority

would  apply  a  third,  intermediate  standard  in the  case  of
                                                  

1.  I believe,  however, that  Sampson's heightened  standard and                                                
the policies it  relies on are applicable only  in the context of
probationary government employees.   In cases of non-probationary                      
employees,  I would apply  nothing more than "the familiar [four-
factor] standard for issuance of  preliminary injunctive relief,"
ante  at  9, the  same  as  we  would apply  to  non-governmental              
employees.   Other  courts have  held  that Sampson's  heightened                                                             
standard of irreparable  injury applies only to  the probationary
employee "type of case."  See  Oglala Sioux Tribe v. Andrus,  603                                                                     
F.2d 707, 712  (8th 1979); Garza v. Texas Educ.  Found., 565 F.2d                                                                 
909, 911 (5th Cir. 1978). 

            According  to the  majority,  "Gately squarely  holds                                                           
that Sampson's heightened standard is not limited to probationary                      
employees."   Ante at 12 n.3 (citing  Gately, 2 F.3d at 1232-33).                                                      
Gately's holding is not so clear as the majority would like it to                
be.  Gately relied heavily on Sampson, 415 U.S. at 83, 91-92, and                                               
probationary  employees constituted the  "type of case"  to which
Sampson applied.                    

            One need  look no further  than the same page  of the
Gately opinion cited by the majority.  As we noted in Gately, the                                                                      
Court in Sampson                           

            repeatedly  referred  to  the  fact-bound
            nature of its holding.  For instance, the
            Court stated that the plaintiff's showing
            "falls  far short of  the type  of injury
            which  is  a necessary  predicate  to the
            issuance  of  a temporary  injunction  in                                                               
            this type of case."  And, in the footnote                                       
            immediately following  this holding,  the
            Court  stated that  "[u]se  of a  court's
            injunctive power . .  . , when  discharge
            of  probationary employees  is an  issue,
            should  be  reserved for  [the  genuinely
            extraordinary] situation."

Gately,  2 F.3d at  1233   (quoting Sampson,  415 U.S.  at 91-92)                                                     
(emphasis and alterations  in Gately).  Thus, the  "type of case"                                              
to which Sampson's  heightened standard applies is  the discharge                          
of  a probationary  employee who  has raised  only civil  service
claims.

                               -23-                                          23

"discrimination claims brought by  government employees where  no

civil service claim  is involved."2  Ante at 10.   Such employees                                                   

must meet a higher standard than they would if the discriminating

employer  had  been  a nongovernmental  entity:    the government

employee must "demonstrat[e] sufficient irreparable harm,  taking

into consideration  'the wide latitude  traditionally granted the

government in dispatching its own internal affairs.'"  Ante at 12                                                                     

(quoting  Gately, 2  F.3d  at  1234).3   Thus,  according to  the                          

majority, if the  plaintiff happens to  be a government  employee

rather than a private sector  employee, a fifth factor gets added

to the "familiar" four-factor test for preliminary injunctions.

            I recognize  that,  in a  case  involving  government

employees  alleging discrimination,  Gately  did apply  the "wide                                                     

latitude"  language quoted  by the  majority.4  I  also recognize

                                                  

2.  Perhaps some difficulty in this area of  the law is caused by
the dual meaning of the term "civil service."  It is important to
distinguish between a government employee raising a civil service
claim under  the CSRA, as was the case  in Sampson v. Murray, 415                                                                      
U.S. 61  (1974), and  a  so-called "civil  service" employee  who
raises  a discrimination  claim against  a  governmental employer
under Title VII or the ADEA, as Janey-Burrell has.

3.  It is worth  noting that this "wide latitude"  was offered as
the  rationale  for  the  "genuinely  extraordinary"  irreparable
injury showing that was required in pure CSRA cases.  See ante at                                                                        
10.    It  is  anomalous  that  it   reappears  as  part  of  the
intermediate Gately standard.                             

4.  In  addition,  Gately  would  appear  to  require  government                                   
employees attempting to establish irreparable harm also to "point
to factors sufficient to  overcome 'the traditional unwillingness
of courts of equity to enforce contracts for personal services.'"
Gately, 2 F.3d at 1234 (quoting Sampson,  415 U.S. at 83).  I  do                                                 
not think  the quotation  should apply  in a discrimination  case
such as Gately was and the present case is.                        

                               -24-                                          24

that, in the absence of an en banc panel, we are bound by a prior                                            

precedent.  Nevertheless, Gately took that language from Sampson,                                                                          

a case which involved only a CSRA claim (and only  a probationary                                    

employee).  Neither  the Supreme Court in Sampson  nor this court                                                           

in Gately discussed any  rationale for applying such language  in                   

the context of a pure discrimination  case, especially when Title

VII  contains no indication  that government employers  should be

afforded any special  "latitude" when it comes  to enforcement of

the Act.   See Douglas  v. Hampton, 512  F.2d 976, 981  (D.C.Cir.                                            

1975)  ("Congress clearly intended  to give public  employees the

same substantive  rights and  remedies that  had previously  been

provided for employees in the private sector."); Martinez v. Orr,                                                                          

738 F.2d 1107, 1110 (10th Cir. 1984) (same); Porter v. Adams, 639                                                                      

F.2d 273, 278 (5th Cir. 1981) (same; also holding that exhaustion

of  administrative remedies  not  required  by  federal  employee

before bringing suit for preliminary injunction). 

                                                  

            The quotation as  originally stated in Sampson  cited                                                                    
Corbin on Contracts as its authority.   415 U.S. at 83.   Perhaps
the quoted principle would be applicable in the context of a CSRA
civil service procedural  claim such as the one  before the Court
in  Sampson; the  "civil service"  claim may  be analogous  to an                     
action against a private employer  in which the employee seeks to
enforce  the  employer's procedural  rules.   But  at  least with
respect  to  a Title  VII or  ADEA cause  of action,  a plaintiff
seeking   a  preliminary  injunction  on  the  basis  of  alleged
discrimination  is not  seeking  "to  enforce  [a]  contract  for                                
personal services."   She is seeking to enforce  her rights under
Title VII or the  ADEA not to be  discriminated against based  on
invidious  stereotyping.   Such rights  were  created by  federal
statutes,  which supersede  any contracts for  personal services.
Because  Janey-Burrell  is  seeking  to   vindicate  her  federal
statutory rights --  not to enforce her employment  contract -- I
do  not believe Gately's  "contract for personal  services" gloss                                
applies in a discrimination case such as the present one.

                               -25-                                          25

            I think it fundamentally unfair  that a person who is

discriminated against by her or his employer should face a higher

hurdle  when seeking  to maintain  the status  quo  pending trial

because of  the mere  fortuity that  the discriminating  employer

happens  to be the government.   To put it  another way, I do not

believe the government as employer should be given more favorable

treatment when it  comes to discrimination claims than  a private

sector  employer.   I  emphasize  that  Title  VII and  the  ADEA

vindicate more important governmental  policy interests than mere

CSRA  "'procedural safeguards  in  effectuating the  discharge.'"

Gately, 2 F.3d at 1234 (quoting Sampson, 415 U.S. at 91).  In the                                                 

words of the  Supreme Court, "[t]he prohibitions contained in the

Civil Rights Act of 1964  reflect an important national  policy."

United States Postal  Serv. Bd. of Governors v.  Aikens, 460 U.S.                                                                 

711, 716 (1983); see General Tel. Co.  v. EEOC, 446 U.S. 318, 326                                                        

(1980).  The majority seems to agree:  the reason offered  by the

majority  to explain  why its  intermediate  Gately standard  for                                                             

government  discrimination claims  "does not  require  as high  a

showing of irreparable harm as  Sampson" requires for CSRA cases,                                                 

is  "because of  the different  policies  and circumstances  that

attend discrimination cases."   Ante at  10-11 (citing Gately,  2                                                                       

F.3d at 1233-34).

            In my view, rooting out discrimination based on race,

gender, or age far outweighs any need to "protect[] the processes

                               -26-                                          26

of  the  civil  service  system."5 See  ante  at  11.   And  such                                                      

discrimination by governmental  employers is at least  as serious

as discrimination  by non-governmental employers.   See Olmstead,                                                                          

277 U.S. at 485 (Brandeis, J., dissenting). 

            There  is  simply  no  principled  reason why  Janey-

Burrell, a non-probationary government  employee with twenty-five

years of service,  raising discrimination claims as well  as CSRA

claims, should be required to  show a higher level of irreparable

injury than the  ordinary, "familiar standard" for  employees who

charge their  non-governmental employers with discrimination.   I

would not treat the governmental employer any more leniently than

the  non-governmental,  as  the  majority  does,  by  applying  a

stricter   standard  to   government   employees  than   to  non-

governmental  employees when  they seek a  preliminary injunction

based  on  alleged  discrimination.   I  would  apply one  single

                                                  

5.  The majority cites EEOC v. Astra USA, Inc., 94 F.3d 738  (1st                                                        
Cir.  1996), for the  proposition that  "the rules  governing the
issuance  of  injunctive  relief  are  not  altered  because  the
plaintiff makes  a discrimination  claim.   Such plaintiffs  must
still satisfy the traditional test  in order to obtain injunctive
relief."  See ante at 11 n.2.  Astra is inapposite here.  I fully                                              
agree  that a Title VII or ADEA plaintiff "must still satisfy the
traditional  test," but the question is, what is the "traditional
test"?   The majority would  apply a different "traditional test"
to injunctions sought by government employees than it would apply
to  injunctions sought  by  non-governmental  employees:    if  a
government  employee  claims discrimination,  the  majority would
subject  her injunction motion  to Gately's additional  hurdle of                                                   
overcoming   the  "wide   latitude   traditionally  granted   the
government in dispatching its own internal affairs."  Ante at 12.                                                                    
Surely the majority  cannot rely on Astra to  support its special                                                   
standard  for  government  employees.    Astra  involved  private                                                        
employees,   and   simply   applied   the  ordinary   four-factor
preliminary  injunction  standard  to the  EEOC,  not  a special,
heightened standard.  See Astra, 94 F.3d at 742.                                         

                               -27-                                          27

"traditional  test"  to   all  Title  VII  or   ADEA  plaintiffs,

regardless of who their employer is. 

                                B                                          B

            I  also  disagree  with  the  majority's  distinction

between   how  it  treats   "discrimination  claims   brought  by

government employees where  no civil service claim  is involved,"

ante at 10, and those discrimination claims which are joined with              

a claim under the CSRA.

            According to  the majority, "the question  may arise"

as to which  standard would apply, the  stricter Sampson standard                                                                  

or the intermediate Gately test, in  a case such as this where  a                                    

plaintiff  has brought  both a  discrimination claim  and  a CSRA                                      

claim.   Ante at 12.  The majority  concludes that "[w]e need not                       

consider this question  until it is squarely before us."  Id.  To                                                                       

me, there is no legitimate question  here:  even though the  CSRA

claim would be  subject to Sampson's requirement of  a "genuinely                                            

extraordinary" showing of irreparable injury, the Title VII claim

should not be; the highest hurdle to which those claims should be

subjected is  Gately's intermediate test.   I cannot  imagine why                              

the majority leaves open the possibility that the "extraordinary"

Sampson standard would ever be applied to a discrimination claim,                                     

regardless of whether it was joined to an additional CSRA claim.

            The anomalous  nature  of  this  possibility  becomes

apparent when we  consider an example.  If a  plaintiff alleges a

single Title VII (or ADEA)  claim alone, the majority would apply

the  intermediate  Gately  standard  of  irreparable   injury  in                                   

                               -28-                                          28

deciding her motion  for a preliminary injunction.   The majority

would  apply  this  intermediate   standard,  and  not  Sampson's                                                                         

"extraordinary" showing standard,  in part because Title  VII and

the ADEA vindicate more important  governmental policy interests,

see  ante  at  11;  Aikens,  460  U.S. at  716,  than  mere  CSRA                                    

"'procedural safeguards in effectuating  the discharge,'" Gately,                                                                          

2 F.3d at 1234 (quoting Sampson, 415 U.S. at 91).                                         

            Assume  now that  the same  plaintiff  adds a  second

cause of action stating, in addition to race discrimination, that

the government also violated her civil service procedural rights.

Should the government -- by allegedly violating an additional law

--  get the  benefit  of  a more  advantageous  (to it)  standard                                          

(Sampson's  "genuinely  extraordinary"   showing  of  irreparable                  

injury instead  of the intermediate Gately standard) when a court                                                    

evaluates whether to maintain the  status quo pending trial?  The

majority leaves  this question  open, ante at  12, implying  that                                                    

this court might, in some future case, answer the question in the

affirmative.

            But  such an answer  would totally ignore  the strong

national  policy that  employers  not discriminate  against their

employees based on race, gender, or age.  See Aikens, 460 U.S. at                                                              

716; General  Tel. Co., 446  U.S. at 326.   Under  the majority's                                

test, the Gately "wide  latitude" test should be applied,  rather                          

than the traditional four-factor test that  is applied to private

sector employees.   Ante at 12.   That latitude should  not carry                                  

any extra  weight --  should not be  permitted to ratchet  up the

                               -29-                                          29

standard to the "extraordinary" Sampson test -- merely because an                                                 

additional violation  (of the CSRA)  is added  to the  employee's

complaint.    

            In short, the analysis should not change depending on

whether a  discrimination claim stands  alone or is joined  to an

additional (CSRA) claim.   I would not reward  the government for

violating  a  second  federal  law  (the  CSRA)  in  addition  to

violating Title VII or the ADEA.

                                II                                          II

            The majority  concludes that Janey-Burrell  failed to

demonstrate  irreparable  injury,  whether  Sampson's  heightened                                                             

standard  or  the intermediate  Gately  standard is  applied.   I                                                

disagree with this conclusion as  well.  In particular, I believe

that Janey-Burrell  has demonstrated  irreparable injury  through

her allegation that the  Secretary's alleged retaliation  against

her could well  intimidate potential witnesses to  her underlying

discrimination claims.  If potential witnesses fear that they too

will  be  retaliated  against  if  they  testify  to  the alleged

discrimination against Janey-Burrell, then those witnesses may be

"chilled" in their willingness to testify candidly in relation to

her  claims.    This chilling  effect  could  leave Janey-Burrell

unable to prove her case either at the administrative level or in

district court.   Even if  her discrimination claims  have merit,

she could well be unable to win any remedy for it.

            The majority concludes that Judge Saris did not abuse

her discretion in finding no irreparable injury.  In limiting its

                               -30-                                          30

analysis to Judge  Saris's ruling, the majority  ignores the fact

that,  upon reconsideration,  the  district  court (Gertner,  J.)

considered both irreparable  injury and likelihood of  success on

the merits of the relevant retaliation claim, and determined that

Janey-Burrell was entitled to  a stay pending appeal.  It  can be

cogently argued that Judge Gertner's decision, not Judge Saris's,

constituted  the district  court's final word  on Janey-Burrell's

motion  for a preliminary  injunction.  Although  Judge Gertner's

memorandum opinion addresses  the plaintiffs' motions for  a stay

pending  appeal, it  recognized that,  "[i]n effect,  . . .  this

court  is being  asked  to  reconsider  Judge  Saris'  thoughtful

analysis."  

            The  district   court  has  "plenary   authority"  to

reconsider its own  rulings if it  believes it has erred,  and to

grant a motion it had previously denied.  El Fenix de Puerto Rico                                                                           

v.  The M/Y Johanny,  36 F.3d 136,  140 n.2 (1st  Cir. 1994); cf.                                                                           

National  Metal Finishing  Co.  v. Barclays  American/Commercial,                                                                           

Inc.,  899 F.2d  119,123 (1st  Cir.  1990) (Even  after entry  of              

judgment, the purpose  of Rule 52(b) is  to allow reconsideration

in order to "correct[]  . . . manifest errors of  law or fact.").

Once  the case  had been  transferred from  Judge Saris  to Judge

Gertner,  the latter  constituted  the  district  court  for  the

purposes of  this case.  Santiago v. Group Brasil, Inc., 830 F.2d                                                                 

413, 415 n.2 (1st Cir. 1987) (Second  judge to whom case had been

reassigned  stood in  shoes  of  first judge,  and  "was free  to

entertain  motions to  reconsider previous  rulings  to the  same

                               -31-                                          31

extent  as [first  judge]  would have  been.");  see Flibotte  v.                                                                       

Pennsylvania Truck Lines,  Inc., 131 F.3d 21, 25  (1st Cir. 1997)                                         

(same).

            Undertaking  that   reconsideration,  Judge   Gertner

explicitly considered  the  merits of  the  relevant  retaliation

claim and the chilling effect  it would have; she determined that

Janey-Burrell was  likely to succeed  on the merits and  that she

would  suffer irreparable injury  without a restrainer;  she made

findings  regarding the  other  two  prongs  of  the  preliminary

injunction test;  and she  granted Janey-Burrell  a stay  pending

appeal.  

            I  do  not believe  we  can hold  that  Judge Gertner

abused her discretion in making  these findings and granting  the

stay,  which she realized in effect constituted a reconsideration

of Judge Saris's decision denying a  preliminary injunction as to

Janey-Burrell.   Even  if  Judge  Gertner's reconsideration  were

given no effect, I would hold,  for the reasons set forth in  the

remainder of this opinion, that Judge Saris abused her discretion

in denying Janey-Burrell's motion for a preliminary injunction.6

            I recognize that abuse of discretion is a deferential

standard, but  that does  not mean that  an appellate  court will

abdicate its  responsibility  to review  the ruling  of the  nisi

prius court.  See Independent Oil &amp; Chem. Workers of Quincy, Inc.                                                                           

v. Procter &amp; Gamble Mfg. Co., 864  F.2d 927, 929 (1st Cir. 1988);                                      
                                                  

6.  The  same reasoning  would apply  a  fortiori if  we were  to                                                           
analyze Judge  Gertner's grant of  a restraining order  under the                                        
abuse of discretion standard.

                               -32-                                          32

Direx Israel, Ltd.  v. Breakthrough Medical Corp.,  952 F.2d 802,                                                           

815  (4th Cir.  1992) (Appellate  review  of grant  or denial  of

temporary injunction should not be a "mere rubber-stamp[]."); cf.                                                                           

Gasperini v. Center  for Humanities, Inc., 116 S.  Ct. 2211, 2223                                                   

(1996) (reaffirming authority  of appellate courts to  review for

abuse of  discretion a district  court's denial of motion  to set

aside  jury verdict as  excessive).  Indeed,  "[p]erhaps the most

important area where parroting the discretion phrase is likely to

lead to wrong decisions  is the review of the grant  or denial of

preliminary injunctions."  Direx, 952  F.2d at 814 (quoting Henry                                          

J.  Friendly, Indiscretion About Discretion, 31  Emory L. J. 747,                                                     

773  (1982)).   Discretion  must  be exercised  "in  a manner  to

subserve  and not  to impede  or defeat  the ends  of substantial

justice."   Sturman  v. Socha,  463  A.2d 527,  531 (Conn.  1983)                                       

(internal  quotation marks omitted); see Allegro v. Afton Village                                                                           

Corp.,  87  A.2d   430,  432  (N.J.  1952)  (In   exercising  its               

discretion,  a court  should  not lose  sight  of its  "paramount

objective" of  rendering justice.); cf. Gasperini, 116  S. Ct. at                                                           

2223 (Appellate review is "a  control necessary and proper to the

fair administration of justice.").

            Application  of an improper legal standard is "'never

within the district court's discretion.'"  Camel  Hair &amp; Cashmere                                                                           

Inst. of America, Inc. v. Associated Dry Goods Corp., 799 F.2d 6,                                                              

13  (1st  Cir.  1986)  (quoting  Bellotti,  641  F.2d  at  1009).                                                   

Likewise,  "misapplication of the  law to particular  facts is an

abuse of discretion."   Camel Hair, 799 F.2d at 13.  For example,                                            

                               -33-                                          33

we will reverse a decision  for abuse of discretion if  the court

below ignored  "a material factor deserving  significant weight,"

relied   upon  an  improper  factor,  or,  though  assessing  all

appropriate and no inappropriate factors, made "a serious mistake

in weighing these factors."   Procter &amp; Gamble, 864 F.2d  at 929.                                                        

I believe the district court (Saris, J.) abused its discretion in

finding no irreparable injury here.

            I  agree with  the majority  and  the district  court

that, standing alone, the loss  of pay and prestige entailed when

one loses  a management  job fails to  meet the  irreparable harm

standard; such  harms -- including  the temporary reversion  to a

GS-13 grade in order to remain in Boston pendente lite  -- can be

compensated by  money damages  if plaintiff  prevails at  trial.7

See Sampson,  415 U.S. at  91-92; Gately, 2  F.3d at 1233-34.   I                                                  

believe  it  was  error,  however,  for  the  district  court  to

conclude, on this basis, that Janey-Burrell failed to demonstrate

irreparable  injury.    Judge Saris  ignored  "a  material factor

deserving  significant  weight"  (which  Judge Gertner  correctly

found applicable),  namely  the chilling  effect  of  retaliatory

actions; as a result, Judge  Saris erred in weighing the relevant

factors.  See Procter &amp; Gamble, 864 F.2d at 929.                                        
                                                  

7.  But see Squires v.  Bonser, 54 F.3d  168, 173 (3d Cir.  1995)                                        
("'When a person loses his job, it is at best disingenuous to say
that money damages can  suffice to make that  person whole.   The
psychological benefits of work  are intangible.'") (quoting Allen                                                                           
v.  Autauga County Bd.  of Educ., 685 F.2d  1302, 1306 (11th Cir.                                          
1982)).   A person  also gains valuable  experience from working,
including staying  current with issues  related to her job.   See                                                                           
DeLaughter v.  United States  Postal Service,  3 F.3d  1522, 1524                                                      
(Fed. Cir. 1993); Gately, 2 F.3d at 1234.                                  

                               -34-                                          34

            It  is  well  established that,  "[i]f  the plaintiff

suffers a substantial injury that is not accurately measurable or

adequately  compensable by money  damages, irreparable harm  is a

natural  sequel.   Thus, a  cognizable  threat of  such harm  can                                                        

support a  restraining order."   Ross-Simons of Warwick,  Inc. v.                                                                        

Baccarat, Inc., 102 F.3d 12,  19 (1st Cir. 1996) (emphasis added)                        

(citations omitted); cf. Elrod v. Burns, 427 U.S. 347, 373 (1976)                                                 

(Deprivation of a constitutional right, "for even minimal periods

of time, unquestionably constitutes irreparable injury.").

            In this case,  Janey-Burrell would suffer irreparable

harm sufficient to sustain an injunction, whether the ordinary or

the heightened  standard applies:   she would  be damaged  in her

ability to pursue  her EEO complaint -- and the  integrity of the

complaint process would  be concomitantly damaged --  if apparent

retaliation were permitted  to go unchecked.   Other courts  have

held  that  "a  Title  VII  suit  involving  alleged  retaliation

presents a  situation calling  for increased  sensitivity on  the

part of a court."   Marxe v. Jackson, 833 F.2d  1121, 1125-26 (3d                                              

Cir.  1987).   Adverse employment  actions  "can cause  potential

witnesses to infer that their employer has retaliated and thereby

discourage  their cooperation with aggrieved plaintiffs."  Marxe,                                                                          

833 F.2d at 1126;  cf. EEOC v. Astra USA, Inc.,  94 F.3d 738, 744                                                        

(1st Cir. 1996)  ("To fulfill the core purposes  of the statutory

scheme,  'it is crucial  that the [Equal  Employment Opportunity]

Commission's   ability  to   investigate   charges  of   systemic

discrimination not  be impaired.'")  (quoting EEOC  v. Shell  Oil                                                                           

                               -35-                                          35

Co.,  466 U.S.  54, 69  (1984)).   Similarly,  where a  plaintiff             

alleges  retaliation  for  filing an  EEO  complaint,  failure to

preserve the  status quo  can have a  "deleterious effect  on the

exercise of these rights by others," and can chill the legitimate

oppositional  activities of others similarly situated.  Garcia v.                                                                        

Lawn, 805 F.2d  1400, 1405 (9th Cir.  1986).  We must  not forget              

that the enforcement  of antidiscrimination laws serves  not only

the interests of  the private parties but  also "vindicate[s] the

public   interest  in   preventing  employment   discrimination."

General Tel. Co.  v. EEOC, 446 U.S. at 326; Astra, 94 F.3d at 745                                                           

(public  policy  "clearly  favors the  free  flow  of information

between victims of [sexual] harassment and [the EEOC,] the agency

entrusted with righting the wrongs inflicted upon them").

            As the Second Circuit observed:

            A retaliatory  discharge carries  with it
            the  distinct risk  that other  employees
            may  be  deterred from  protecting  their
            rights under  the Act  or from  providing                                                               
            testimony for the plaintiff in her effort                                                               
            to protect her  own rights.   These risks                                                
            may  be found  to constitute  irreparable
            injury.

Holt v.  Continental Group, Inc., 708 F.2d  87, 91 (2d Cir. 1983)                                          

(emphasis added).

            I agree with  our sister circuits on  this point, and

would hold  that,  in appropriate  circumstances,  the  potential

chilling effect  of retaliation  on the  ability of  employees to

protect their  rights under  the antidiscrimination  laws may  be

found  to constitute sufficient  irreparable injury to  warrant a

preliminary  injunction, even  under the  heightened standard  of

                               -36-                                          36

Sampson  v.  Murray.    The majority  opinion  alludes  to  these                             

decisions,  but does  not make  it clear  whether and  under what

circumstances  it  believes   such  a  chilling  effect   may  be

sufficient  to satisfy the  irreparable injury requirement  for a

preliminary injunction in circumstances such as these.

            In   minimizing   Janey-Burrell's   chilling   effect

argument,  the majority notes that "Congress has chosen the route

of awarding  attorneys fees  to successful  plaintiffs to  dispel

disincentives to the bringing of  meritorious suits."  Ante at 17                                                                     

n.7.  But  attorneys fees only dispel disincentives  based on the

high cost of litigation; attorneys  fees do nothing to dispel the

disincentive of  an  employer's retaliatory  vendetta  which  can

intimidate potential  witnesses and thereby  prevent a  plaintiff

from adequately prosecuting even a meritorious claim.

            In  this  case,   Janey-Burrell  has  articulated   a

sufficient  expectation that  she will  suffer  the same  type of

irreparable harm  described by the  Second Circuit in Holt:   the                                                                    

deterrence of other employees from testifying on behalf of Janey-

Burrell (or from  protecting their own rights).   Janey-Burrell's

transfer across the  continent "can cause potential  witnesses to

infer that their  employer has retaliated and  thereby discourage

their cooperation with  [the] aggrieved plaintiff[]" for  fear of

suffering a  similarly adverse  fate.  Marxe,  833 F.2d  at 1126.                                                      

This potential for intimidation  will be reduced to  some degree,

"if potential  witnesses observe  that the  courts afford  prompt

relief from retaliatory action."  Id.                                                

                               -37-                                          37

            The  majority notes  that Janey-Burrell  could choose

not to  be transferred, simply  by accepting a demotion  in grade

and status in Boston.8  Ante at 13.  It is true that the monetary                                      

aspect of such a demotion can  be remedied after trial if  Janey-                                                                   

Burrell prevails.   But  the chilling effect  of the  demotion on

witnesses cannot be  remedied so easily.  The  chilling effect on

witnesses  is not dependent  on whether the  retaliation comes in

the  form  of an  involuntary  transfer  to  San Francisco  or  a

demotion to a GS-13-grade non-supervisory job in Boston.  Indeed,

many  potential witnesses and complainants might be deterred more

by  the threat  that their  speaking  out could  result in  their

demotion in pay and status than by the threat of  a transfer to a

distant city.  If Janey-Burrell loses her underlying case because

no witnesses  are willing to  come forward and testify,  then she

will never be  remedied for her monetary losses  arising from the

allegedly retaliatory demotion.  

            I  share  the  majority's   concern  that  not  every

plaintiff who alleges retaliation by her employer should be  able

to  obtain  a  preliminary injunction  merely  by  asserting that

witnesses might conceivably be "intimidated from contributing  to

                                                  

8.  It should be noted that HHS offered Janey-Burrell this Boston
option only on the eve of the hearing on plaintiffs' motion for a
temporary restraining order.   The Boston option  was not offered
at  the  same time  (June  11) that  HHS  ordered Janey-Burrell's
transfer to  California, but on  August 13, more than  two months
later.    This was  six  days before  the  effective date  of her
transfer (two days before DeNovellis's) and more than three weeks
after  DeNovellis filed a  Formal (Stage 2)  Grievance protesting
his transfer out of state.

                               -38-                                          38

the plaintiff's case" out of  fear of retaliation.9  See  ante at                                                                        

14.  On the other hand, we should be at least as vigilant against

the risk that a plaintiff whose claim has merit will nevertheless

be  unable  to  prove  her  claim because  she  cannot  meet  the

majority's  standard  for  demonstrating  with  specificity  that

material witnesses who  might have otherwise testified  to actual

discrimination  by the  employer against  the  plaintiff are  now

afraid to testify  based on the employer's  allegedly retaliatory

transfer of the plaintiff to an office  3,000 miles away.  I find

it highly  unlikely that a  witness who is intimidated  enough to

refuse  to  testify   on  the  underlying  discrimination   would

nevertheless  be willing to jeopardize  her own career by signing

an  affidavit attesting  that she  is reluctant  to tell  all she

knows   because  of  the   chilling  effect  of   the  employer's

retaliation against the initial plaintiff.

            Wishing    to    be   neither    overinclusive    nor

underinclusive, I  would conduct an individualized  assessment of

all relevant factors.  In the circumstances of this case, I would

give  Janey-Burrell  the  benefit  of  the  doubt  regarding  the

adequacy of her showing that  she would be irreparably injured by

the  chilling  effect  of  her  employer's  alleged  retaliation.
                                                  

9.  The majority asserts that Janey-Burrell "is basically arguing
for  a per  se  rule  that a  conclusory  assertion made  by  the
plaintiff for the first time in appellate briefs is sufficient to
establish a  chilling effect  and to  obtain injunctive  relief."
Ante at 14.  The fact is, however, Judge Gertner, who was sitting              
as the  district court in this case  at the time, expressly found
such a chilling  effect.  As  I note below,  I would affirm  this
finding based on an individualized assessment of the facts before
the district court, not based on a per se rule.

                               -39-                                          39

Janey-Burrell  is a  non-probationary  employee with  twenty-five

years of exemplary  service in the Boston office.   Shortly after

she filed complaints of discrimination, her supervisor personally

interjected  himself  in the  implementation  of  adverse actions

against her in a manner that is highly unusual for someone of his

rank.   See  infra at  45-46.   Importantly,  the injunction  she                            

sought  would simply  maintain  the  status  quo  pendente  lite,

without  causing any  serious  harm  to  her  employer's  overall

reorganization or operations.   See Wetzel  v. Edwards, 635  F.2d                                                                

283, 286  (4th Cir. 1980)  (Because the purpose of  a preliminary

injunction is to preserve the status quo until the  rights of the

parties can be adjudicated, the courts have distinguished between

a motion for preliminary injunctive relief to maintain the status

quo  and   one  to  provide  mandatory  relief.).    Given  these

circumstances, I would hold that Janey-Burrell has demonstrated a

"cognizable threat" of irreparable harm, Baccarat, Inc., 102 F.3d                                                                 

at 19, and should have been granted a restraining order.

            This  result is not  inconsistent with the  result in

Gately.   There, we  found such  irreparable harm  in plaintiffs'                

allegations   that  went  beyond   "temporary  loss  of   pay  or

reputational injury."  2 F.3d at 1233-34 (citations omitted).  We

emphasized the fact that the Gately plaintiffs were "arguing that                                             

their statutorily-based  civil rights  [would] be  violated," and

not merely  "claiming that  they [were]  'entitled to  additional

procedural safeguards in effectuating the discharge.'"  Gately, 2                                                                        

F.3d at 1234  (quoting Sampson, 415 U.S. at 91)).  In addition to                                        

                               -40-                                          40

these two "significant  respects" in which the  Gately facts were                                                                

distinguishable  from Sampson's facts,  we noted that  the Gately                                                                           

plaintiffs  were not  seeking interim  injunctive relief  pending

completion of  an administrative  appeals process,  and that  the

district court  "unquestionably had  the authority  to issue  the

requested   equitable   relief"  (citing   the   judicial  relief

provisions of the ADEA).  Gately, 2 F.3d at 1233-34.                                          

            Similarly, Janey-Burrell's case involves claims under

federal  civil  rights   statutes  in  addition  to   her  merely

procedural  claims, and  those civil  rights  statutes grant  the

court the authority to reinstate  illegally discharged employees.

Moreover, Janey-Burrell has adequately  asserted irreparable harm

that goes beyond mere loss of pay or reputational injury, thereby

satisfying three of the four Gately distinguishing factors.                                             

            It is true  that Janey-Burrell has not  exhausted her

administrative remedies  and thus  has not satisfied  one of  the

Gately factors.  Nevertheless, she is distinguishable from Jeanne                

Murray,   the  plaintiff  in   Sampson  v.  Murray,   in  another                                                            

fundamental  respect, not listed  among the four  Gately factors.                                                                  

Ms. Murray  was a  probationary employee who  had worked  for the

government  for a  mere four  months.   She sought  an injunction

precluding her dismissal from her  job during the pendency of the

litigation,  which could  have lasted  (and did last)  for years.

Equitable considerations  surely cast  her in  a different  light

than Janey-Burrell,  who had  worked for HHS  in Boston  for more

                               -41-                                          41

than twenty-five years before the agency proposed to transfer her

across the country.  

            This  difference is  amplified when  we consider  the

purpose of a preliminary injunction:  "to preserve the status quo

until  the  rights  of  the  parties  can  be  fairly  and  fully

investigated and determined."  Wetzel, 635 F.2d at 286 (quotation                                               

omitted); Omega  Importing Corp.  v. Petri-Kine  Camera Co.,  451                                                                     

F.2d 1190, 1197 (2d Cir. 1971) (citing 7 James Wm. Moore, Federal                                                                           

Practice   65.04[1] (2d ed.  1955)).  When Janey-Burrell sought a                  

preliminary injunction  precluding her involuntary  transfer, she

merely  sought  to  preserve  the  status  quo,  even though  her

administrative charge had not yet  been resolved.  Ms. Murray, in

contrast, would have required the  Court to strain the meaning of

the "status  quo" beyond recognition  if the Court  had permitted

her to bootstrap her four-month tenure into several years' court-

ordered employment.  The irreparable injury to Murray's employer,

if the Court had affirmed the restraining order in Sampson, would                                                                    

have outweighed the irreparable injury Murray would suffer if the

restrainer were denied.  In  short, Janey-Burrell is more akin to

the  Gately  plaintiffs,  who  were  entitled  to  an  injunction                                             

maintaining  the status quo pendente  lite, than to the plaintiff

in Sampson who was not so entitled.                    

                               III                                         III

            Finally, I  disagree with  the majority's  conclusion

that  Janey-Burrell failed to demonstrate a likelihood of success

on  the merits  of her  retaliation claim.   Janey-Burrell  filed

                               -42-                                          42

three  EEO   complaints,  two   of  which   involved  claims   of

retaliation.   Her second EEO  complaint alleged  that, in  April

1994, she was assigned to a temporary "detail" in retaliation for

her  having  filed  her  first  complaint  of   race  and  gender

discrimination.    Her  third  EEO  complaint  alleged  that  her

involuntary   transfer  from  Boston  to  San  Francisco  was  in

retaliation for her having filed her first two complaints.

            Although   the   present   motion   for   preliminary

injunction  relates to the latter complaint, Judge Saris analyzed

Janey-Burrell's likelihood of success on her retaliation claim by

considering only the first such claim (the temporary "detail").10

Judge  Saris's entire analysis  of the merits  of Janey-Burrell's

retaliation claims is the following:  "Janey-Burrell was detailed

to  a position  of great  significance  in the  community in  the

office  of  the  former regional  director,  Philip  W. Johnston.

Johnston  stated  in  his affidavit  that  Galligan  proposed the

detail in response to Johnston's  request for someone with Janey-

Burrell's  significant  expertise.    That   hardly  sounds  like

retaliation."

                                                  

10.  Judge  Saris did  find  that  Janey-Burrell  was  likely  to
succeed  on  the  merits of  her  CSRA  claim.   The  court held,
however, that, because the  CSRA cause of action  asserted merely
procedural flaws in the process by which her involuntary transfer
came  about, Janey-Burrell had  failed to satisfy  the heightened
showing  required to meet  the irreparable injury  requirement to
justify  a preliminary  injunction in  that  type of  case.   See                                                                           
Sampson v. Murray, 415 U.S. 61, 91 (1974).                             

                               -43-                                          43

            Whether  we agree  or  disagree  with  the  foregoing

analysis,11 it  addresses the  wrong retaliation  claim.   Janey-

Burrell  seeks   a  preliminary   injunction  against   her  1996

involuntary  transfer  to  San Francisco;  she  claims  that that                                                                           

transfer,  after almost  twenty-five years  of service at  HHS in

Boston, was retaliatory.   The motion presently before  the court

has nothing to do  with the 1994 temporary detail.  Judge Saris's

opinion erred  as  a matter  of  law by  failing to  analyze  the

likelihood that Janey-Burrell will succeed on the merits of  this

last retaliation claim.

            Applying  our  precedents  to  Janey-Burrell's  third

complaint (her  second retaliation  claim) leads  me to  disagree

with the majority and to conclude that Janey-Burrell is likely to                                                                 

succeed  on  the merits.    To establish  a  prima facie  case of

retaliation,  Janey-Burrell  had  to  demonstrate  that  (1)  she

engaged  in protected conduct;  (2) she suffered  from an adverse

employment  decision; and  (3)  the  protected  conduct  and  the

adverse action were  causally connected.   Fennell v. First  Step                                                                           

Designs, Ltd., 83  F.3d 526, 535 (1st  Cir. 1996).  The  ADEA and                       

Title  VII of the Civil Rights Act of 1964 analogously protect an

individual  who has  filed  an  EEO  complaint  from  retaliation

therefor.  See id. at 535 n.9.  The underlying complaint does not                            

                                                  

11.  It was not until three months  after Janey-Burrell had filed                                                   
her  second  EEO  complaint  --  alleging  that  the removal  and
temporary  detail  to  an  unclassified position  with  undefined
duties were retaliatory -- that former Regional Director Johnston
requested that  Galligan assign someone  like her to  his special
project, and Janey-Burrell was so detailed.

                               -44-                                          44

have  to be correct or successful.   As we noted in the Title VII

context, "there is  nothing in [the statute's]  wording requiring

that the charges  be valid, nor even an  implied requirement that

they  be reasonable."   Wyatt v. City  of Boston, 35  F.3d 13, 15                                                          

(1st  Cir. 1994)  (citations omitted).   "[I]t is  'well settled'

that   [the   retaliation  provisions]   protect[]   an  employee

regardless of the merit of his or her EEOC charge."  Id. (quoting                                                                  

Sias v.  City Demonstration Agency,  588 F.2d 692, 695  (9th Cir.                                            

1978)).  

            Janey-Burrell's  filing of  an EEO  claim constituted

protected  conduct.   See 42  U.S.C.    2000e-3(a)  (specifically                                   

protecting such  conduct); Oliver  v. Digital  Equip. Corp.,  846                                                                     

F.2d 103, 110 (1st Cir. 1988).  And both the reassignment  to San

Francisco  and   the  demotion  to   a  GS-13  were,   under  the

circumstances,  undoubtedly  adverse  employment  actions.    See                                                                           

Wyatt,  35 F.3d  at 15-16  (pointing  to "other  adverse actions"               

covered  by   Title  VII  "such  as   demotions,  disadvantageous                                                                           

transfers  or  assignments,  refusals   to  promote,  unwarranted                   

negative  job evaluations and  toleration of harassment  by other

employees") (emphasis added); Dominic v. Consolidated Edison  Co.                                                                           

of New York, Inc. 822 F.2d  1249, 1254-55 (2d Cir. 1987) (holding                           

an  unfavorable transfer  to  constitute  an  adverse  employment

decision);  DeNovellis v.  Shalala, 124  F.3d 298, 306  (1st Cir.                                            

1997)  (noting that  taking  something  of  consequence  from  an

employee,    including     divesting    her     of    significant

responsibilities, constitutes an adverse employment action).

                               -45-                                          45

            The  majority  concludes  that  Janey-Burrell  cannot

succeed on the merits because  she "offers little evidence" of "a

causal  connection between her filing  the two EEO complaints and

the subsequent choice  she is forced to make  between transfer or

demotion."   Ante at 17.  But in many cases such as this one, the                           

causal connection must  be shown through  indirect means such  as

inferences  and  circumstantial  evidence because  "[t]here  will

seldom  be eyewitness  testimony  as  to  the  employer's  mental

processes."  See Aikens, 460 U.S. at 716.  Such indirect evidence                                 

may be sufficient to demonstrate the requisite causal connection.

Id.             

            The majority finds Janey-Burrell's proof of causation

to be insufficient  to show probability of success.   I disagree.

I find  the evidence and  inferences here -- among  other things,

facts  set forth in  Janey-Burrell's affidavit and  undisputed by

the government  -- to  be sufficiently persuasive.   Within  five

months of her  filing her first EEO complaint  alleging race- and

gender-based discrimination  on the  part of  Hugh Galligan,  the

Regional Administrator  of ACF  for Region  I,   Galligan removed

Janey-Burrell from her supervisory position and detailed her to a

temporary undefined position.  Significantly, on Friday, April 8,

1994,  Galligan  personally  delivered  a  memorandum  to  Janey-

Burrell,  announcing   the  removal  and  detail   effective  the

following  Monday.    Galligan instructed  her  to  move all  her

belongings  by  that Monday,  April  11.    When Monday  arrived,

Galligan personally appeared at Janey-Burrell's office  door with

                               -46-                                          46

a hand-cart and began to  move her belongings.  Needless  to say,

this kind  of personal involvement  was unusual  behavior for  an

official  of Galligan's  rank.   It  reeks of  retaliation.   See                                                                           

Mesnick v. General Elec. Co., 950  F.2d 816, 828 (1st Cir.  1991)                                      

(evidence  of  a  supervisor's  "vengeful  preoccupation"   would

suggest a retaliatory  animus); see also Oliver, 846  F.2d at 110                                                         

("A showing  of discharge soon  after the employee engages  in an

activity specifically  protected by  . .  . Title  VII .  . .  is

indirect proof of a causal  connection between the firing and the

activity because it is strongly suggestive of retaliation.").

            Galligan's intense personal interest in Janey-Burrell

was highlighted again  in June 1996, when he personally delivered

to her the letter containing  her reassignment to San  Francisco.

Galligan told  her "It's  bad  news.   You're not  going to  like

this."

            As its legitimate  non-discriminatory explanation for

its  actions, the government  asserts that its  personnel actions

regarding Janey-Burrell were  related to a reorganization  of its

offices,  intended to  streamline  the agency  and  make it  more

efficient.  The government, of course, is entitled  to reorganize

its offices,  and efficiency is  certainly a laudable goal.   But

the government may not use its reorganization/improved-efficiency

rationale  as  a   pretext  to  mask  actual   discrimination  or

retaliation; the mere  incantation of the mantra  of "efficiency"

is not  a  talisman insulating  an  employer from  liability  for

invidious  discrimination.  See McDonnell Douglas Corp. v. Green,                                                                          

                               -47-                                          47

411 U.S.  792, 804 (1973).  As discussed supra, Galligan, who was                                                        

the object of Janey-Burrell's EEO  charges, was a major player in

the  decision concerning how the department would be reorganized,

which jobs were to be eliminated  and which were to be  retained,

and who was to  be assigned to which location.12   And Galligan's

personal involvement in the mechanics of Janey-Burrell's physical

relocation   bespeaks  an   emotional  involvement   beyond  mere

objective  efficiency.   It is  a fair  inference, not  seriously

rebutted  by the  government,  that  Galligan's animosity  toward

Janey-Burrell  was causally  connected to  her  having filed  EEO

charges  against him,  and  that his  decisions  to reassign  and

transfer her  were retaliatory.   See Mesnick,  950 F.2d  at 828;                                                       

Oliver, 846 F.2d at 110.  This is especially true in light of the                

letters  in the  record  from  a wide  variety  of community  and

governmental leaders attesting  to the quality and  importance of

Janey-Burrell's work in Boston neighborhoods.

            Moreover, "'[d]epartures  from the  normal procedural

sequence'"  are  among  the  factors  a  court  may  consider  in

                                                  

12.  The  majority emphasizes the fact that  Galligan was not the
final decision-maker,  that ACF  Director of  Regional Operations
Diann Dawson could  have overridden his selections and Ms. Dawson
had no retaliatory  animus.  Ante at 18-19.  This argument is not                                           
persuasive.    The  government does  not  seriously  dispute that
Galligan's  recommendations to Ms. Dawson carried great weight in
determining  which employees  should be  retained in  supervisory
positions in Boston and which five should be transferred to other
regions.    Ms.  Dawson  had   only  been  in  her  position  for
approximately one month and was  located in Washington, D.C.  She
had  little reason to quarrel with Galligan's decisions, as might
have been the case  if she in fact knew  that Galligan's decision
to  put  Janey-Burrell  on  the transfer  list  rather  than  the
retention list might have been motivated by retaliation. 

                               -48-                                          48

assessing discriminatory motive.  See Reno v. Bossier Parish Sch.                                                                           

Bd., 117 S.  Ct. 1491, 1503 (1997) (quoting  Arlington Heights v.                                                                        

Metropolitan Hous. Dev. Corp., 429 U.S. 252, 266 (1977)).  Janey-                                       

Burrell argues that the Department refused to follow the CSRA and

its own regulations pertaining to RIFs and to her reassignment to

a position in a different commuting area.  To the extent that her

procedural  claims prove to be true, such deviations from regular

procedure  would constitute  further  circumstantial evidence  of

discriminatory motivation.

            To counter this inference,  the government notes that

there  were ten  similarly  situated  managers  in  the  Regional

Office,  and only five of  them were given directed reassignments

out  of the  area;  the  other five  were  retained in  permanent

positions in  the Boston Region.  Moreover,  only two of the five

transferees had filed  prior EEO  complaints.   These numbers  do

nothing to negate the claim  of retaliation.  The government does

not  address the  more relevant  (though  still not  dispositive)

question  of whether  anyone  who  had  previously filed  an  EEO

complaint ended up with one of the permanent  positions.  I note,

moreover, that  the majority states:   "[t]he  decision made  was

categorical,  not  individual.    All  five  GS-14  managers  not                                                                           

selected to be a goal leader . . . were given the choice of being                                      

reassigned to  an equal  position in another  city or  a demotion

while staying  in Boston."   Ante  at 19  (emphasis added).   The                                           

majority ignores  the critical  fact that  the Secretary,  acting

primarily through Galligan,  made a conscious choice  as to which

                               -49-                                          49

five employees  would retain  their rank  and location  and which

five would suffer  an adverse action (i.e., a  choice between two

adverse actions).  I think  the record contains facts giving rise

to a fair inference that retaliation was the reason Janey-Burrell

was one of the five selected  for a transfer.  I would  conclude,

therefore,  that Janey-Burrell has  made a sufficient  showing of

likelihood of success on the merits of her claim of retaliation.

                                IV                                          IV

            In sum,  I believe  Janey-Burrell has  demonstrated a

likelihood of success on the  merits of her retaliation claim and

irreparable injury as to that claim.  As noted, there is a strong

"public  interest   in  preventing   employment  discrimination,"

General Tel.  Co. v. EEOC, 446  U.S. at 326, and  particularly in                                   

assuring the  integrity of the enforcement process by nipping any

retaliation in  the bud,  see Lawn, 805  F.2d at 1405;  Holt, 708                                                                      

F.2d at 91.  As  for balancing the equities, Janey-Burrell, after

twenty-five  years of  exemplary service  to  the Boston  office,

simply  asks to  maintain  the  status quo  pendente  lite.   See                                                                           

Wetzel, 635 F.2d  at 286.  She  asks this not merely  because the                

proposed  transfer  would  cause her  own  dislocation,  but also

because she  is the  legal guardian  for her asthmatic  grandson,

whose natural  mother lives  in Boston, and  the transfer  to San

Francisco  would  create  serious  obstacles  in  Janey-Burrell's

effort to reunite her grandson with his mother.  In contrast, the

injury to the government would  be minimal if the injunction were

granted:   HHS would  simply be  ordered to  do what  it has  the

                               -50-                                          50

discretion to do and retain Janey-Burrell at her pay and grade in

the Boston office until the  merits of her claims are determined.

Neither the agency nor the government at large would be forced to

derail the  entire government  reorganization/improved-efficiency

process   in  its   tracks,  a   specter   that  the   government

disingenuously conjured up in opposing the motion for preliminary

injunction.    The  government's  inconvenience  can  in  no  way

outweigh the  potential harm to  Janey-Burrell and to  the public

interest.  

            In  evaluating  an   application  for  a  preliminary

injunction,  "[t]he heart  of  the matter  is  whether 'the  harm

caused   plaintiff  without  the  injunction,  in  light  of  the

plaintiff's  likelihood  of  eventual  success  on  the   merits,

outweighs  the  harm  the  injunction  will  cause  defendants.'"

United Steelworkers  of America v.  Textron, Inc., 836 F.2d  6, 7                                                           

(1st Cir.  1987) (quoting  Vargas-Figueroa v.  Saldana, 826  F.2d                                                                

160, 162 (1st Cir. 1987)).  Because this balance weighs decidedly

in favor of  Janey-Burrell, I would hold that  the district court

abused  its discretion in failing to grant Janey-Burrell's motion

for a preliminary injunction.

            The majority opinion makes it extremely difficult for

government employees  to preserve  the status  quo pendente  lite

through a preliminary injunction, more difficult than it would be

for their non-governmental  counterparts who file  discrimination

claims joined with CSRA claims.  The majority opinion permits the

government to reap the benefits of its alleged discrimination for

long periods of  time, and imposes  a very  high hurdle before  a

                               -51-                                          51

court can provide an effective remedy to civil servants who, like

Janey-Burrell, have devoted decades of service to the government.

I respectfully dissent.

                               -52-                                          52
