than Brenner, or McCann, or Ranieri, each of them younger than plaintiff, each male, and each retained.
Plaintiff has thus established a substantial likelihood of success on the merits of her claim that she was discharged on the basis of her sex and/or age. I therefore need not decide, whether there is a substantial likelihood that she will prevail on her claim that her discharge was in retaliation for her filing of sex and age discrimination claims with federal authorities.
Plaintiff has also demonstrated that she will suffer irreparable injury if her petition for a preliminary injunction is denied. While under general rules of equity, mere loss of employment and attendant loss of reputation and flow of current income may not entitle a claimant to reinstatement by means of a preliminary injunction, see Sampson v. Murray, 415 U.S. 61, 94 S. Ct. 937, 39 L. Ed. 2d 166 (1974),
plaintiff has shown other harms which she is suffering because of her termination. She has presented credible evidence of nervous and emotional problems brought on by her dismissal, and which have created difficulties for her in other areas of life. The opinion of the Court in Sampson v. Murray, id. at 92 n. 68, 94 S. Ct. at 953 "recognize(s) that cases may arise in which the circumstances surrounding an employee's discharge, together with the resultant effect on the employee, may so far depart from the normal situation that irreparable injury might be found. Such extraordinary cases are hard to define in advance of their occurrence."
Plaintiff's evidence that her health has suffered and will continue to suffer because of the trauma of the loss of her job goes beyond the monetary injury, which can be made up by a back pay award, and injury to reputation, which may be repaired by an ultimate adjudication that dismissal from employment was contrary to law. Cf. Sampson v. Murray, supra. The injury concurrently being suffered by plaintiff cannot be cured by retrospective relief; and plaintiff requires a preliminary injunction to halt this continuing injury.
A further indication that plaintiff is suffering the irreparable injury required before a preliminary injunction may issue is that she has shown a substantial likelihood that she has been the victim of sex and/or age discrimination practiced by a governmental entity in violation of statutory command. Irreparable injury sufficient to support issuance of a preliminary injunction is demonstrated where a plaintiff has shown that termination of employment was an infringement of the First Amendment. "The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976). Although sex or age discrimination Per se will not always result in irreparable injury, "a denial of equal protection rights may be more or less serious depending upon the other injuries which accompany such deprivation." Constructors Association of Western Pennsylvania v. Kreps, 573 F.2d 811, 820 n. 33 (3d Cir. 1978).
Plaintiff has not made out a Prima facie claim under Section 1983, which means that the grievances of which plaintiff has made Prima facie proof are not of constitutional dimension. Nonetheless, many of the same considerations which led the Supreme Court to state that a loss of First Amendment freedoms constitutes irreparable injury, and which led the Court of Appeals for the Third Circuit to suggest that the denial of equal protection is a factor to be considered in weighing a claim of irreparable injury, have application here. Unequal treatment of the basis of arbitrary criteria (here, age and/or sex) practiced by officials of a government agency may be in and of itself more humiliating than the same conduct practiced by a private individual. Such conduct is certainly destructive of the proper relationship between government and the citizenry. And, in this case, the harm of the discrimination itself is exacerbated by the mental and physical harms to which the plaintiff has testified.
The defendant has made no showing that it will be "substantially harmed," A. O. Smith Corp. v. F. T. C., supra, by a requirement that it reemploy plaintiff pending the outcome of this suit. The balance of hardship thus tips heavily in favor of the plaintiff. Further, there is no public interest in allowing defendant to continue what, on the preliminary record, appears to be a discriminatory course of conduct, by allowing it to operate without reinstating plaintiff.
A preliminary injunction will therefore issue, ordering the defendant to reinstate plaintiff either as Programmer Trainee or Documentation Technician, as the needs of the Unit dictate, pending the final disposition of this litigation. The parties are requested to present a form of order to the Court.