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March 6, 1991


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
  Cir. 1982).

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 the merits.

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 Diane Murray.

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 retaliatory 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 ...

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