Opinion
CIVIL ACTION NO. 3:06cv1177 (SRU).
December 21, 2006
RULING
The defendants have moved to stay the preliminary injunction I issued on December 1, 2006. In that order, I prohibited the four defendants, administrators at Western Connecticut State University ("WCSU" or the "University"), from conditioning the continued employment of Rosalie Appel, a tenured professor, on her submission to an involuntary psychiatric examination. See Appel v. Spiridon, ___ F. Supp. 2d ___, 2006 WL 3479414 (D. Conn. Dec. 1, 2006). I concluded that the plaintiff had raised sufficiently serious questions going to the merits of her equal protection "class of one" claim, established irreparable harm, and that the balance of hardships decidedly tipped in her favor.
The defendants, sued in both their official and individual capacities, are: Charles Spiridon, Dean of Human Resources; Linda Vaden-Goad, Dean of the School of Arts and Sciences; Linda Rinker, Provost and Vice President for Academic Affairs; and James Schmotter, President of the University. For purposes of prospective injunctive relief, they have been sued in both their official and individual capacities.
I decline to stay the order.
I. Factual Background
Rosalie Appel is a tenured professor in the WCSU Art Department where she has been on the faculty since the 1960's. Last year her Art Department faculty colleagues signed a petition, objecting to her "unprofessional" conduct, which they described as "disruptive and accusatory." They requested outside assistance in order to improve the functioning of the Department.
In response, Vaden-Goad convened a special assessment committee ("SAC" or the "Committee") pursuant to the collective bargaining agreement between the Connecticut State University American Association of University Professors and the Board of Trustees for the Connecticut State University System.
The SAC conducted a review of Appel's work and interactions with students, faculty and staff members. The Committee attempted to meet with her, but Appel refused. In April 2006, the SAC issued a preliminary report, summarizing its findings and recommendations. The SAC found that Appel is capable of teaching well, but the Committee had reservations about "her ability to develop the rapport appropriate to effective teaching."
On June 30, 2006, the SAC issued its Plan for Remediation. In that final plan, the SAC identified several areas of remediation and recommended action to respond to each area. In general, the recommendations focused on Appel altering her interpersonal behavior with faculty, students, and staff; improving her syllabi; modifying the administration of student surveys; and finding accessible space for the public display of her students' work. In addition, the SAC recommended that Appel undergo "neuropsychological and projectives assessments to determine whether she has the capacity to alter the behaviors in this work setting that have been documented as problematic (yelling, accusing and needing instructions to be repeated many times)."
The University implemented the Plan for Remediation in its entirety. When Appel refused to submit to the battery of psychiatric tests and failed to attend an appointment scheduled by Spiridon at the Institute of Living, she was suspended without pay. In her motion for a preliminary injunction, Appel challenged only one aspect of the Plan for Remediation: the requirement that she submit to a psychiatric exam.
II. Procedural Background
In November, the parties appeared before me for a hearing on Appel's motion for a preliminary injunction. I granted that motion on December 1, 2006, finding that Appel had raised sufficiently serious questions going to her "class of one" equal protection claim. Two weeks later, Appel filed a motion for contempt because the defendants had failed to comply with the preliminary injunction order. After the contempt motion was filed, the defendants appealed the order.
III. Discussion
The defendants have moved under Federal Rule of Civil Procedure 62(c) and Federal Rule of Appellate Procedure 8(a)(1)(C) for an immediate stay. In deciding whether to stay the preliminary injunction order pending appeal, I must consider the following factors:
(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.Hilton v. Braunskill, 481 U.S. 770, 776 (1987). None of those factors favors a stay.
A. Strong Showing of Likelihood of Success on the Merits
The defendants have not shown that they are likely to succeed on the merits of their appeal.
The University administrators assert that there is no evidence in the record to support Appel's "class of one" equal protection claim. The defendants argue first that there is no evidence that they intentionally treated Appel differently from similarly situated individuals. Second, they argue that there is no evidence that their treatment of Appel was irrational. I disagree with both contentions.
The defendants also argue that Appel's motion for a preliminary injunction raised only a First Amendment claim. Although her complaint and motion were originally based on a claim of retaliation in violation of the First Amendment, she amended her complaint to include an equal protection claim. During a telephone conference on November 1, 2006, the parties and I discussed that amendment. Therefore, despite Appel's failure to amend her motion to reflect the additional constitutional claim, the defendants are mistaken when they assert that the equal protection claim was first raised in closing argument.
1. Intentional, Different Treatment from Similarly Situated Individuals
The standard for establishing an equal protection violation based on a "class of one" theory is stringent. Neilson v. D'Angelis, 409 F.3d 100, 105 (2d Cir. 2005). The first prong of a "class of one" claim requires the plaintiff to establish that she has been intentionally treated differently from others who are similarly situated. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2003). The Second Circuit Court of Appeals has elaborated on that requirement: "the standard for determining whether another person's circumstances are similar to the plaintiff's must be . . . whether they are prima facie identical." Neilson, 409 F.3d at 105 (internal citation and quotation marks omitted).
The defendants argue that my finding that no other faculty member had been subjected to an involuntary psychiatric examination as a prerequisite to continued employment "establishes that there is no other faculty member who is `prima facie identical.'" Def. Memo. in Supp. Motion to Stay (doc. # 50) ("Def. Memo.") at 2. The defendants are confused. The fact that the University administrators have treated Appel differently from other tenured faculty members who have been subjected to a special assessment is evidence in support of her "class of one" claim. Although at trial Appel may need to produce additional evidence relating to other professors whose circumstances are identical to hers in order for her claim to succeed, at this stage in the litigation, she has raised sufficiently serious questions going to the merits of her claim. Moreover, it would, no doubt, be impossible for Appel to identify other individuals whose treatment is identical to hers while establishing that she is in a class of one.
Although the current record lacks detail, there is sufficient evidence to establish serious questions regarding whether the defendants intentionally treated Appel differently from similarly situated individuals. As I noted in my earlier ruling, the relevant circumstances involved here are Appel's status as a WCSU tenured faculty member who has undergone a special assessment pursuant to the collective bargaining agreement and has been disciplined. The behavior identified as problematic did not involve violence or threats of violence, but centered around allegedly unprofessional interpersonal conduct.
The University administrators emphasized that Appel is not the only professor at WCSU who has been subject to a special assessment and remediation plan under the terms of the collective bargaining agreement. She is, however, the only professor who has been required to submit to a psychiatric examination in order to maintain her tenured position. With respect to the one other professor whose remediation plan involved "psychological counseling," Vaden-Goad testified that he or she was "very willing to participate" and that the professor's conduct involved "hitting walls or yelling at students." Tr. at 83-84. In other words, that professor was not forced to undergo a battery of psychiatric tests, like Appel, despite behavior that was more than merely unprofessional, and involved near-violent conduct, i.e., hitting walls or yelling at students.
Finally, the defendants cannot legitimate their imposition of discipline for failing to comply with the Plan for Remediation's requirement of a psychiatric exam ("No one else was suspended because no one else refused to go to a psych exam." Def. Memo. at 3.) without justifying the need for the exam in the first place. Otherwise, defendants could remove a tenured faculty member simply by imposed an onerous or humiliating condition and "disciplining" the faculty member for failing or refusing to comply with the condition.
2. Absence of Rational Basis
The second prong of an equal protection "class of one" claim requires a plaintiff to produce evidence showing that the disparate treatment was irrational or arbitrary. See Hayut v. State Univ. of New York, 352 F.3d 733, 754 (2d Cir. 2003). That inquiry focuses on "whether the official's conduct was rationally related to the accomplishment of the work of their agency." Bizzarro v. Miranda, 394 F.3d 82, 88-89 (2d Cir. 2005).
The University administrators have argued that I failed to apply the rational basis test when determining whether its decision to require Appel to submit to an involuntary psychiatric examination was arbitrary. Def. Memo. at 3-4.
In support of their argument that employers may require employees to submit to psychological fitness-for-duty evaluations, the defendants had pointed to several cases stemming from challenges under the Americans with Disability Act ("ADA"). My discussion of the ADA and those cases was intended to highlight the legal limitations on the type of demand that the defendants have imposed on Appel. See 42 U.S.C. § 12112(d) (prohibiting employers from requiring a medical examination "unless such examination or inquiry is shown to be job-related and consistent with business necessity"). The defendants appear to have confused my discussion of the ADA — a response to the cases they marshaled in support of the legality of their conduct — with my analysis of her "class of one" claim.
It is true that requiring an employee to submit to a mental health evaluation is not per se arbitrary and irrational. Cf., e.g., Brumley v. Pena, 62 F.3d 278-79 (8th Cir. 1995) (finding requirement that employee recovering from depression submit to psychological exam before returning to work was not a violation of Rehabilitation Act). Nevertheless, a fact-finder may conclude that in the circumstances present here — namely, when the problematic conduct consists of yelling, accusing, needing instructions to be repeated, and being perceived as moody, unpleasant, and angry — mandating that a tenured professor submit to a battery of psychiatric tests or lose her position is not rationally related to the accomplishment of the University's work.
The Second Circuit has expressly left open the question whether a plaintiff pursuing an Olech-type claim must produce evidence of ill will or malice in addition to intentionally different treatment. See, e.g., Bizzarro, 394 F.3d at 86-87. Accordingly, Appel need not produce evidence of malice or ill will in order to raise serious questions going to the merits of her claim.
3. Irreparable Harm
The defendants' argument that Appel has failed to produce any evidence of irreparable harm is also misguided.
As I noted in my earlier ruling, the violation of a constitutional right is itself irreparable harm. See, e.g., Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984) (Eighth Amendment); Parents' Ass'n of P.S. 16 v. Quinones, 803 F.2d 1235, 1242 (2d Cir. 1986) (Establishment Clause); see also 11A Wright, Miller Kane, Federal Practice and Procedure: Civil 2d § 2948.1, at 161 (2d ed. 1995) ("When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary."). Because Appel has produced evidence of a continuing violation of her right to equal protection, she has satisfied the required showing of irreparable harm to merit a preliminary injunction. Cf. United States v. New York City Bd. of Educ., 2002 WL 31663069, *3 (E.D.N.Y. Nov. 26, 2002) ("mere incantation" of an equal protection violation does not constitute irreparable harm).
B. Balance of Hardships
The second and third factors — whether WCSU will be irreparably injured absent a stay and whether the issuance of a stay will substantially injure Appel — also weigh against a stay of the injunction.
The defendants argue that the University will "suffer severe hardship" if the preliminary injunction is not stayed. Def. Memo. at 10. Specifically, the administrators assert that the "hardship on the [U]niversity will be felt in that Ms. Appel's behavior will continue to prevent the Art Department from functioning at an adequate level. . . . Disruption to working relations and an efficient administration should be recognized as an injury to the University. . . ." Id. The defendants apparently fail to recognize that the only aspect of the Plan for Remediation that has been affected by the preliminary injunction is the requirement that Appel undergo a psychiatric examination. Id. The University and the Art Department are not prohibited from requiring Appel's compliance with the other aspects of the Plan for Remediation or instituting discipline if she refuses to comply. It is silly to suggest that the "University will be left with no way of assuring that faculty take their professional responsibilities seriously" if WCSU is prohibited from conditioning Appel's employment on her submission to a psychiatric exam. Def. Memo. at 11.
In fact, their argument's focus on the alleged hardship to the University if Appel returns to work — i.e., not if they are precluded from conditioning her employment on a psychiatric evaluation — suggests that the imposition of a psychiatric exam may have been intended to force her off the faculty.
C. Public Interest
Finally, with respect to the fourth factor, the public interest does not lie with a University that appears to seek to oust a tenured faculty member — whom it recognizes is capable of teaching well — by conditioning her teaching on her submitting to a battery of psychiatric tests at a facility of its choice.
The defendants' motion to stay the preliminary injunction order (doc. # 50) is DENIED.
It is so ordered.