
USCA1 Opinion

	




                            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 & Chem. Workers of Quincy, Inc.                        ___ _______________________________________________          v. Procter & 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 & 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 & 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 & 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
