BOWNES, Senior (circuit Judge (dissenting).

The 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

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 62.

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 by non-governmental employers. See Olmstead v. United States, 277 U.S. 438, 485, 48 S.Ct. 564, 575, 72 L.Ed. 944 (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

The majority envisions three separate tests for the issuance of a preliminary injunction, depending on the circumstances. The "familiar [four-factor] standard," ante at 62, 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, 94 S.Ct. 937, 953-54 n. 68, 39 L.Ed.2d 166 (1974). See ante at 62-63. I agree with the majority's analysis to this point.

In between the foregoing two standards, the majority would apply a third, intermediate standard in the case of "discrimination claims brought by government employees where no civil service claim is involved." Ante at 62-63. 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 63 (quoting Gately, 2 F.3d at 1234). 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. I also recognize 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).

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, 94 S.Ct. at 953). 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, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983); see General Tel. Co. v. EEOC, 446 U.S. 318, 326, 100 S.Ct. 1698, 1704, 64 L.Ed.2d 319 (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 62-63 (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 of the civil service system." See ante at 63. And such discrimination by governmental employers is at least as serious as discrimination by non-governmental employers. See Olmstead, 277 U.S. at 485, 48 S.Ct. at 575 (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 "traditional test" to all Title VII or ADEA plaintiffs, regardless of who their employer is.

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 62-63, 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 63. 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 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 63; Aikens, 460 U.S. at 716, 103 S.Ct. at 1482, than mere CSRA "'procedural safeguards in effectuating the discharge,'" Gately, 2 F.3d at 1234 (quoting Sampson, 415 U.S. at 91, 94 S.Ct. at 953).

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 63, 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, 103 S.Ct. at 1482; General Tel. Co., 446 U.S. at 326, 100 S.Ct. at 1704. 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 ___. That latitude should not carry any extra weight — should not be permitted to ratchet up the 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

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 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. Barclaysamerican/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 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.

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); 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.,___ U.S. ___, ___, 116 S.Ct. 2211, 2223, 135 L.Ed.2d 659 (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, 191 Conn. 1, 463 A.2d 527, 531 (1983) (internal quotation marks omitted); see Allegro v. Afton Village Corp., 9 N.J. 156, 87 A.2d 430, 432 (1952) (In exercising its discretion, a court should not lose sight of its "paramount objective" of rendering justice.); cf. Gasperini, 518 U.S. at ___, 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, 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. See Sampson, 415 U.S. at 91-92, 94 S.Ct. at 953-54; 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.

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, 96 S.Ct. 2673, 2689-90, 49 L.Ed.2d 547 (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 Co., 466 U.S. 54, 69, 104 S.Ct. 1621, 1631, 80 L.Ed.2d 41 (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, 100 S.Ct. at 1704; 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 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 65 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.

The majority notes that Janey-Burrell could choose not to be transferred, simply by accepting a demotion in grade and status in Boston. Ante at 63-64. 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 nonsupervisory 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 the plaintiff's case" out of fear of retaliation. See ante at 64. 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. 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 75. 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, 94 S.Ct. at 953). In addition to 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 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 lights 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

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 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"). 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."

Whether we agree or disagree with the foregoing analysis, 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 e 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 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).

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 65. 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, 103 S.Ct. at 1482. 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 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, 411 U.S. 792, 804, 93 S.Ct. 1817, 1825, 36 L.Ed.2d 668 (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. 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 assessing discriminatory motive. See Reno v. Bossier Parish Sch. Bd., ___ U.S. ___, ___, 117 S.Ct. 1491, 1503, 137 L.Ed.2d 730 (1997) (quoting Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 563-64, 50 L.Ed.2d 450 (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 66 (emphasis added). The majority ignores the critical fact that the Secretary, acting primarily through Galligan, made a conscious choice as to which 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

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, 100 S.Ct. at 1704, 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 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 court can provide an effective remedy to civil servants who, like Janey-Burrell, have devoted decades of service to the government. I respectfully dissent.