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Marxe v. Jackson

argued: July 21, 1987.


On Appeal from the United States District Court For the District of New Jersey, Trenton, C.A. No. 86-0555.

Becker, Stapleton, and Hunter, Circuit Judges.

Author: Stapleton


STAPLETON, Circuit Judge:

This appeal involves a challenge to a preliminary injunction granted by the district court in a title VII retaliation case. Appellants, Charles Jackson, Charles Yates, and American Telephone & Telegraph Communications Company (collectively AT&T), contend that the preliminary injunction was erroneously granted. They argue that the appellee, Francine Marxe, failed to demonstrate either likelihood of success on the merits or a threat of irreparable harm to herself. Marxe disagrees, contending that the district court correctly found both requirements to have been met. We conclude that while the record supports the finding of a likelihood of success on the merits, it does not support the finding of irreparable injury to Marxe. Accordingly, we will reverse.


Francine Marxe worked for AT&T for more than 19 years and rose steadily through the AT&T ranks. On Jan. 1, 1975, after six years of employment, Marxe became an AT&T staff associate and in 1976, she was promoted to Level 3 status. She received a third promotion in January 1978, this time to Level 4, making her a division manager. Throughout this period of time, Marxe was regarded as well-qualified and received consistently positive evaluations.

By the fall of 1982, shortly after her transfer to Marketing Project Management, Marxe began experiencing what she perceived to be discriminatory treatment. According to her affidavit, Marxe requested a transfer in the summer of 1983, because of allegedly "differential" treatment she received from Charles Jackson, her immediate supervisor at the time, Charles Yates, and other agents of AT&T. She was not transferred. Because she felt that her supervisors did not respond adequately to her complaints, Marxe filed her initial charge with the Equal Employment Opportunity Commission (EEOC) in June 1985. The complaint enumerated ten manifestations of the perceived discrimination and charged that "[r]espondents have refused to remedy the discriminatory treatment afforded [me]." App. at 71.

Within six months of her fist EEOC charge, Marxe was described as only "marginally satisfactory." Marxe felt that, after she filed the charge, Jackson viewed her with increasing hostility, and that he scrutinized her more closely and began to undercut her in public. In January 1986, Marxe filed a second EEOC charge. She filed this suit in the United States District Court for the District of New Jersey at about the same time.

Shortly thereafter Marxe was transferred to a new department, ostensibly so that her competence could be assessed by a new supervisor. She worked under two supervisors, Louis Golm initially and Francis Ianna after Golm received a promotion. Golm stated in his affidavit that the told Marxe "the performance [he] had seen . . . was directionally correct and . . . [that] if this type and level of performance were to continue, [he] would be pleased." App. at 217. Ianna was also satisfied with Marxe's performance.

On July 11, 1986, while Marxe's EEOC charges were pending, she was evicted from her office on little more than an hour's notice. She was allowed to take with her only her personal belongings and papers she needed that day. She was not permitted to return to her office until the end of the day. AT&T insists that the short-notice eviction was necessary to facilitate effective compliance with Marxe's discovery requests.

Marxe continued to work at AT&T during the pendency of her complaints and her suit. In the fall of 1986, she twice brought a tape recorder, which she kept in a handbag, to meetings with Ianna. Marxe surreptitiously taped conversations concerning her job responsibilities and a work-force reduction plan that AT&T was implementing at that time. She testified at her deposition that her primary motivation in making the tapes was to enhance her job performance. She later realized that the tapes might prove useful in her lawsuit and delivered them to her attorney.

AT&T learned of the existence of the tapes on December 3, 1986, when Marxe produced copies of them in response to AT&T's discovery requests. Ianna and Bridget Manzi, a director-level executive assistant, confronted Marxe six days later and demanded an explanation of the taping. Ianna suspended Marxe shortly after she had completed her explanation. He confiscated her security badge and ushered her out of the building, treatment which, Marxe contends and AT&T disputes, ordinarily was accorded only employees guilty of serious crimes, such as theft or embezzlement, or who were leaving to join competing communications companies.

On December 12, 1986, nine days after having received the tapes, AT&T formally fired Marxe. Ianna read her the contents of a discharge letter over ...

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