Because CEPA is a relatively new statute with sparse case law, the court has decided to consider in the alternative whether plaintiff would be entitled to an injunction if the Act protects employees fired in retaliation for filing discrimination claims. In order to support a motion for preliminary injunction, the moving party must demonstrate that (1) she will suffer irreparable harm if the relief is not granted and (2) that there is a reasonable probability of success on the merits. Continental Group, Inc. v. Amoco Chem. Corp., 614 F.2d 351, 356-57 (3d Cir. 1980). In addition, the court must "weigh the possibility of harm to the nonmoving party as well as to any other interested persons and, when relevant, harm to the public." Id. at 357. Finally, in determining whether plaintiff has suffered irreparable harm or whether plaintiff may have a reasonable probability of success on the merits, this court must examine New Jersey law. Id. at 357 n. 10 ("state law would define what injury is cognizable and would control any assessment of the moving party's probability of success on the merits").
An injunction will not be granted unless the moving party demonstrates irreparable injury that cannot be adequately compensated by damages. Ecri v. McGraw-Hill, Inc., 809 F.2d 223, 226 (3rd Cir. 1987). A plaintiff must establish more than a risk of irreparable harm. Id. It is plaintiff's burden of proving a "clear showing of immediate irreparable injury." Id. (quoting Continental Group, 614 F.2d at 359).
Plaintiff makes a two-fold argument with respect to her showing of irreparable harm. First, plaintiff contends that she has suffered irreparable harm. In addition, plaintiff argues that under CEPA irreparable harm can be shown by injury to third parties based on a chilling effect of retaliatory activity. Due to the recent enactment of the statute, plaintiff offers no direct case law to support her arguments under CEPA. Thus, the court will examine analogous actions in determining the appropriate showing of irreparable harm. The case law under wrongful discharge and Title VII cases provides an appropriate mechanism to evaluate plaintiff's claims.
It is clear that under the Supreme Court's holding in Sampson v. Murray, a plaintiff in a wrongful discharge must allege more than a loss of income and damage of reputation to meet the requirement of irreparable harm. 415 U.S. 61, 91, 92, 39 L. Ed. 2d 166, 94 S. Ct. 937 (1974). In addition, the Supreme Court noted that "insufficiency of savings or difficulties in immediately obtaining other employment" will not support a finding of irreparable injury. Id. at 92 n.68. Similarly, in Moteles v. University of Pennsylvania, the Third Circuit held that a showing of irreparable injury was a prerequisite for preliminary injunctive relief under Title VII. 730 F.2d 913, 918 (3d Cir.), cert. denied, 469 U.S. 855, 105 S. Ct. 179, 83 L. Ed. 2d 114 (1984). Applying the rationale of these cases to the issue at hand, this court holds that under CEPA a plaintiff must make the same showing of irreparable harm in order to support the issuance of a preliminary injunction. This court finds that plaintiff has made no affirmative showing of such injury.
Plaintiff, however, also claims that her firing caused irreparable harm to third parties. She argues that by virtue of New Jersey's "deep commitment to the protection of its employee citizenry and its repugnance to employer retaliation, and by virtue of the devastating effect the denial of the instant motion would have on Smith, other TMS employees and the public interest, there is sufficient irreparable harm to mandate the issuance of a preliminary injunction." Supplemental Brief for Plaintiff at 9-10. Plaintiff urges the court to apply under CEPA the approach adopted by the Ninth Circuit in Garcia v. Lawn, 805 F.2d 1400 (9th Cir. 1986). In Garcia, the court held that a retaliatory action's deleterious effect on the exercise of Title VII rights of others can constitute irreparable harm in a Title VII action. 805 F.2d at 1405. See also Holt v. Continental Group, Inc., 708 F.2d 87, 91 (2d Cir. 1983), cert. denied, 465 U.S. 1030, 79 L. Ed. 2d 695, 104 S. Ct. 1294 (1984) (recognizing that the "risks that other employees may be deterred from protecting their rights . . . or providing testimony" may constitute irreparable harm).
This court does not accept plaintiff's assertion that there is a presumption of irreparable injury in an action by a plaintiff alleging retaliatory discharge under CEPA. In addition, under the third-party chilling approach, this court agrees that to support such an argument, affirmative evidence must be introduced. See Holt, 708 F.2d at 91. Because plaintiff failed to make any affirmative showing of third-party chilling, her motion must be denied.
This court holds that plaintiff's individual claim does not fall under the protections of the Conscientious Employee Protection Act. In the alternative, this court rules that if plaintiff's action did fall under CEPA, plaintiff has failed to meet her burden in demonstrating the requisite irreparable harm. Accordingly, plaintiff's motion for a preliminary injunction is denied.
An appropriate order will be entered.
Dated: November 23, 1988
For the reasons set forth in this court's opinion filed even date;
IT IS on this 23rd day of November, 1988 ORDERED that plaintiff's motion for a preliminary injunction is DENIED.