Alaska Employment Law

Judge Burgess: the Employee’s Intangible Losses are not Irreparable

Barbara Flory works at Wal-Mart in Anchorage as a greeter.  Because of pain, she requested accommodations, but Wal-Mart denied them.  She then filed disability discrimination charges against Wal-Mart, and shortly thereafter a Complaint in federal court. 

Flory filed her charges with the Anchorage Equal Rights Commission and the EEOC.  Neither agency has apparently finished processing her charges, but that didn’t prevent the Court from taking action.  Under Ninth Circuit precedent, “a district court has jurisdiction to grant a preliminary injunction in a Title VII case before the completion of the administrative process in order to maintain the status quo.”  Duke v. Langdon, 695 F.2d 1136, 1137 (9th Cir. 1983). 

Flory initially sought an order allowing her to return to work with various accommodations.  After Wal-Mart returned her to work with a different accommodation, Flory asked for a preliminary injunction “to prohibit Wal-Mart from engaging in any retaliatory or discriminatory actions while her claims are investigated by the EEOC.”  She argued that, absent the injunction, she would incur harm, because “working enables her to get out of the house, meet new people, and generally be a productive and contributing member of society.”

Judge Burgess has now denied Flory’s request, holding:

the court finds that these intangible losses do not constitute irreparable harm. Such opportunities remained available to Plaintiff outside of a work environment.  Furthermore, ‘[t]he possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.’  [Citation omitted.]  The Court agrees with Defendant that there is no risk of irreparable injury in this case.  If Plaintiff has further lost wages due to inappropriate conduct by Wal-Mart, lost wages can be recouped in the form of back-pay once the EEOC reaches the merits of her claim.

 Flory v. Wal-Mart Stores, Inc., 3:06-cv-00269-TMB (D.Alaska Oct. 9, 2007)(Docket # 69).

Flory is represented by Anne-Marie Cotter, Jacob Kammermeyer, and Megan Allison from the Disability Law Center of Alaska.  Rudy Englund (Seattle) and Peter Partnow (Anchorage) of Lane Powell represent Wal-Mart.