The opinion of the court was delivered by: D. Brooks Smith, District Judge.
Diane Murray's fourth motion for a preliminary injunction was
the subject of an evidentiary hearing held on February 11,
1991.*fn1 Having received plaintiff's post hearing letter brief
and defendants' proposed findings of fact, we proceed to rule on
the questions presented by the motion.
Plaintiff's eleventh-hour motion seeking a court order
restraining a proposed psychiatric examination was based on
allegations that the motivation for the examination was to
retaliate against her, presumably for bringing a civil rights
suit against the Pittsburgh Board of Education and several of
plaintiff's supervisors. Plaintiff also raised the argument that
a compelled psychiatric examination is an unconstitutional search
and seizure in violation of the Fourth and Fourteenth Amendments.
Neither of these two contentions was supported. We therefore
deny plaintiff Diane Murray's motion for a preliminary
injunction, forfeit plaintiff's security bond, and dissolve the
temporary restraining order. Defendants may make any application
necessary for costs in excess of the amount posted as bond within
ten days of this Order.
We look first to the showing required of a plaintiff who seeks
issuance of a preliminary injunction.
In order to support a preliminary injunction,
plaintiff must show both a likelihood of success on
the merits and a probability of irreparable harm.
Hohe v. Casey, 868 F.2d 69, 72 (3d Cir.) cert.
denied, ___ U.S. ___, 110 S.Ct. 144, 107 L.Ed.2d 102
(1989). Additionally, the district court should
consider the effect of the issuance of a preliminary
injunction on other interested persons and the public
interest. See Arthur Treacher's Fish & Chips, Inc.
v. A & B Management Corp., 689 F.2d 1137, 1143 (3d
Bradley v. Pittsburgh Board of Education, 910 F.2d 1172, 1175
(3d Cir. 1990). We examine first the evidence presented in
support of Diane Murray's claim that she is likely to succeed on
Plaintiff alleged that Lee B. Nicklos, personnel director for
the Pittsburgh Board of Education, embarked on a deliberate "plan
of retaliation",*fn2 Motion, Paragraph 3, which was to be
carried out by subjecting Murray to accusations of mental
disability with the ultimate goal of "driv[ing] Murray from the
school system." Id. Plaintiff did not in her motion allege why
it was that defendants were retaliating against her, nor did she
address the subject in her hearing testimony. The only time
plaintiff even departs from allegations of retaliation "in the
air" and touches on a concrete question of motivation is in the
potboiler fiction style prose of plaintiff's memorandum:
All that is left for the Defendant [again
unidentified] herein is Murray's outspokenness and
her staunch belief in her constitutional rights. This
is not an acceptable reason. Psychiatric studies are
not called for simply because a person is a
Memorandum on Privacy Issue, 8. It is absolutely repugnant to
this Court that a charge of Soviet-style psychiatric oppression
for purposes of retaliating against a dissident should be leveled
at the defendants in a lawsuit when no attempt is then made to
support such an accusation.
The evidence which the Court heard shows the following: in late
November, 1990, Mrs. Spolar, the associate director of employee
relations for the Pittsburgh Board of Education, received a
telephone call from deputy superintendent Helen Faison about an
incident between Diane Murray and another employee at the Letsche
Alternative School which arose at a parent-teacher conference.
Spolar, whose testimony impressed us as credible and accurate,
told Dr. Faison that there was not much that could be done
because the contretemps between Murray and Johnson, the other
employee, had been a matter of words exchanged without an
administrator present and that in such matters it was difficult
to prove who was responsible. Later, Faison sent Spolar a report
from Vernon Phillips, the Letsche principal whom we have heard
and found to be reliable in an earlier proceeding. Because of
Phillips' reported growing concern about Murray's ability to
interact with others and fitness to teach, and because of
Murray's almost unique history of prolonged absences from work,
Spolar decided to obtain a comprehensive medical evaluation of
Spolar discussed the idea of an examination with Faison and
with the Board's special labor counsel, Mr. Bruce Campbell.
Spolar also notified Mrs. Lee B. Nicklos of her plan when Nicklos
returned to the office after a vacation in late November. Spolar
made arrangements for a mental and physical evaluation of Diane
Murray with Dr. David Spence, a psychiatrist associated with the
Sewickley Valley Hospital. Nicklos scheduled a meeting with
Murray for December 20, 1990, but Murray did not attend, claiming
that she had a pinched nerve in her neck. Murray notified Nicklos
personally and through her union representative that she would
not be attending. On January 4, 1991, Nicklos finally met with
Murray, and instructed her that she should attend a psychiatric
evaluation with Dr. Spence on January 9, 1991. Plans which had
been made for physical examinations on the same day had to be
changed because of Murray's failure to attend the pre-Christmas
meeting, but it was clear to everyone at all times that both
physical and psychiatric examinations were planned. At 6:25 p.m.
on the night before the first examination was scheduled,
plaintiff submitted her motion for a restraining order.
Plaintiff raises a variety of reasons why this Court should
prevent her from being examined by the School Board. First,
Murray asserts that a compelled psychiatric examination is an
unconstitutional invasion of privacy. Secondly, she continues to
allege that the motive for the examinations is retaliatory, again
without specifying which of her actions or conduct evoked the
response.*fn3 Finally, she alleges certain defects in the
Board's procedure under what she alleges is the controlling
statute, the Pennsylvania School Code, 24 P.S. § 14-1401 et seq.
The controlling authority in this Circuit on the issue of
employee privacy stems from two opinions authored by Chief Judge
(then Judge) Sloviter, United States v. Westinghouse Electric
Corp., 638 F.2d 570 (3d Cir. 1980) and F.O.P., Lodge 5 v. City
of Philadelphia, 812 ...