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Brewster v. North Carolina Department of Secretary of State

United States District Court, E.D. North Carolina, Western Division

April 22, 2019

DIERDRA A. BREWSTER, Plaintiff,
v.
NORTH CAROLINA DEPARTMENT OF THE SECRETARY OF STATE, Defendant.

          MEMORANDUM AND RECOMMENDATION

          James E. Gates, United States Magistrate Judge.

         This 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.

         Initially, 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 denied.

         I. BACKGROUND

         This 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).

         II. APPLICABLE LEGAL PRINCIPLES

         A 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).

         The 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 pending trial.").

         III. ANALYSIS

         Because 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.

         As to 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.

         Second, 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.

         For 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.

         To be 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 ...


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