United States District Court, E.D. North Carolina, Western Division
DIERDRA A. BREWSTER, Plaintiff,
NORTH CAROLINA DEPARTMENT OF THE SECRETARY OF STATE, Defendant.
MEMORANDUM AND RECOMMENDATION
E. Gates, United States Magistrate Judge.
employment discrimination case comes before the court on a
motion (D.E. 38) by pro se plaintiff Dierdra A. Brewster
("plaintiff") for an order specifying the
information her former employer, defendant North Carolina
Department of the Secretary of State ("defendant"),
and any of its representatives provide to prospective future
employers of plaintiff inquiring about her. Specifically, she
asks the court to require defendant and its representatives
to provide only her start date and end date, and to do so
"with kindness, eagerness and warmth," but if asked
whether she would be rehired, to provide a statement that her
return to employment would be upon mutual agreement. Mot.
1-2. Plaintiff also asks the court to restrain defendant from
stating that she would not be welcomed back if she reapplied
for a position with it and "from making any tiresome
sighs of disapproval, sounds of disgust or making any
statements (directly or indirectly) that would impact
negatively and upon [her], (that is, her character, her
professionalism, her skills, knowledge and her practical
abilities)." Id. at 2. Although styled by
plaintiff as a motion to compel and restrain, the relief
sought is in the nature of a preliminary injunction.
defendant did not respond to the motion, but the court
directed it to file a response. See 13 Mar. 2019
Ord. (D.E. 41). It has since done so, indicating that it
opposes the motion. See Def.'s Resp. (D.E. 42).
The response is supported by an affidavit by Margaret Reader
("Reader Aff.") (D.E. 42-1), who identifies herself
as the Director of Human Resources Division for the North
Carolina Department of the Secretary of State (Reader Aff.
¶ 3). The motion is therefore ripe for ruling. For the
reasons set forth, it will be recommended that the motion be
case was commenced by plaintiff on 7 September 2018. Compl.
(D.E. 1). In her complaint and attached exhibits, plaintiff
alleges that defendant discriminated against her on the basis
of her age and religion, and retaliated against her for
filing an earlier Equal Employment Opportunity Commission
("EEOC") complaint. Id. §§ II,
III.D; EEOC Inquiry Information (D.E. 1-1) 3. As relief, she
seeks recovery of lost wages and benefits, and compensation
for emotional distress, estimated to total $500, 000.00.,
Stmt, of Claim (D.E. 1-2 at p. 2).
APPLICABLE LEGAL PRINCIPLES
preliminary injunction is an extraordinary remedy providing
injunctive relief pending resolution of the underlying
dispute. Johnson v. Stirling, No. CV 9:18-3028-RMG,
2019 WL 1568067, at *2 (D.S.C. 11 Apr. 2019) ("A
preliminary injunction is 'an extraordinary remedy
involving the exercise of a very far-reaching power, which is
to be applied only in the limited circumstances which clearly
demand it.'" (quoting Direx Israel, Ltd. v.
Breakthrough Med. Corp., 952 F.2d 802, 811 (4th Cir.
1991)). Four requirements must be met for issuance of a
preliminary injunction: (1) the movant is likely to succeed
on the merits of the underlying dispute; (2) the movant is
likely to suffer irreparable harm if the injunction is not
issued; (3) the balance of the equities tips in favor of the
movant; and (4) the injunction is in the public interest.
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7,
20 (2008). The burden is on the party moving for injunctive
relief to satisfy these elements. Dominici v.
Hendrix, No. 5;I8CVI28, 2018 WL 5077651, at *1 (N.D.
W.Va. 18 Oct. 2018).
injunctive relief provided by a preliminary injunction is
typically prohibitory, "intended to protect the status
quo and prevent irreparable harm during the pendency of a
lawsuit." Di Biase v. SPX Corp., 872 F.3d 224,
230 (4th Cir. 2017); SH Franchising, LLC v. Newlands
Homecare, LLC, No. CV CCB-18-2104, 2019 WL 356658, at *2
(D. Md. 29 Jan. 2019) ("The status quo is the 'last
uncontested status between the parties which preceded the
controversy.'" (quoting League of Women Voters
of North Carolina v. North Carolina, 769 F.3d 224, 236
(4th Cir. 2014))). But the relief may be mandatory. See,
e.g., Pashby v. Delia, 709 F.3d 307, 319 (4th Cir.
2013). Mandatory relief is particularly disfavored, and the
requirements for issuance of it are strictly applied. See
Pashby, 709 F.3d at 319; Torres v. Davis, No.
1:18-CV-314-FDW, 2019 WL 1332378, at *5 (W.D. N.C. 25 Mar.
2019) ("[A] mandatory injunction 'goes well beyond
simply maintaining the status quo pendent lite, is
particularly disfavored, and should not be issued unless the
facts and law clearly favor the moving party.'"
(quoting Taylor v. Freeman, 34 F.3d 266, 270 n. 2
(4th Cir. 1994))); Dominici, 2018 WL 5077651, at *1
("The demanding standard outlined above becomes even
more exacting when a plaintiff seeks a preliminary injunction
that mandates action, as contrasted with the typical form of
preliminary injunction that merely preserves the status quo
the relief sought by plaintiff goes beyond preservation of
the status quo, requiring defendant to provide specific
responses to certain inquiries, it is more in the nature of a
mandatory injunction than a prohibitory injunction.
Nonetheless, whether the requirements for a preliminary
injunction are applied in a particularly exacting fashion as
for a mandatory injunction, or less rigorously as for a
prohibitory injunction, plaintiff fails to demonstrate that
the requested preliminary injunction should issue.
the first requirement, likelihood of success on the merits,
plaintiff does not show that it is satisfied. The motion,
which is unsupported by a memorandum and any accompanying
evidence, does not show satisfaction of any of the
requirements. In fact, the motion does not directly address
this or any of the other requirements for the relief she
seeks. The exhibits to plaintiffs complaint, which is
unverified, also fail to show that she is likely to succeed
on the merits.
with respect to the likelihood of irreparable harm if the
relief is not granted, plaintiff again fails to make the
required showing. Indeed, she already has available to her
the substance of much of the relief she seeks.
example, defendant reports that its policy is to provide only
neutral references for employees with less than favorable
departures. Reader Aff. ¶ 7. The information provided by
defendant in such circumstances is limited to the starting
date of employment, ending date of employment, job title at
time of departure, and salary at time of departure.
Id. ¶ 8. While plaintiff would have defendant
not disclose her job title and salary, she has not shown that
inclusion of this information would cause her irreparable
harm. If asked about whether a former employee could be
rehired, defendant states that the person is eligible for
rehire unless a settlement agreement with the person provides
otherwise. Id. ¶ 9. This information appears to
be the functional equivalent of the rehiring language
plaintiff seeks-namely, that her return to employment would
be upon mutual agreement. Moreover, defendant acknowledges in
its response that it "should refrain from making any
noises intended to signal disapproval toward a former
employee." Def.'s Resp. 5. This acknowledgment
arguably addresses plaintiffs concern about the tone
defendant uses in communications with prospective employers
inquiring about her.
sure, North Carolina statutes provide public access to
certain portions of personnel files. See Reader Aff.
¶ 10 (citing N.C. Gen. Stat. §§ 126-22, -23).
But defendant provides such access only upon request and does
not offer such access. Id. Additionally, state law
requires that if a potential state or local government
supervisor is in the interview process and requests
performance management documents in the personnel file of a
former employee, the documents must be provided. Id.
¶ 11 (citing N.C. Gen. Stat. § 126-24(a)). While
compliance with these provisions could result in ...