John M. Heineke v. SANTA CLARA UNIVERSITY and QIANYUE EVELYN ZHANG

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN M. HEINEKE,
Plaintiff-Appellant,
v.
SANTA CLARA UNIVERSITY and
QIANYUE EVELYN ZHANG,
Defendants-Appellees.
No. 17-16876
D.C. No. 5:17-cv-05285-LHK
MEMORANDUM*
JOHN M. HEINEKE,
Plaintiff-Appellant,
v.
SANTA CLARA UNIVERSITY and JANE
DOE,
Defendants-Appellees.
No. 17-17408
D.C. No. 5:17-cv-05285-LHK
Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding
Argued and Submitted March 14, 2018
San Francisco, California
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
MAY 25 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Before: BERZON and BEA, Circuit Judges, and BERG,** District Judge.
Plaintiff John M. Heineke (Heineke), a long-serving tenured professor at
Santa Clara University, appeals the district court’s denial of a preliminary injunction
to lift his suspension from teaching and order his reinstatement. Heineke sought this
injunction after the university suspended him pending the results of an internal
investigation of a sexual harassment complaint by a former student. Along with his
claims for injunctive relief, Heineke brought suit for wrongful termination under the
Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623; due process
violations under 42 U.S.C. § 1983; intentional infliction of emotional distress;
negligent infliction of emotional distress; breach of contract; breach of the covenant
of good faith and fair dealing; and defamation.
The district court denied the preliminary injunction request,1 resting its
decision solely on a finding that Heineke had not established a substantial likelihood
** The Honorable Terrence Berg, United States District Judge for the Eastern
District of Michigan, sitting by designation.
1 Heineke appealed the denial of his preliminary injunction motion. Dkt. 13 (Case
No. 17-16876). While that appeal was pending, the university president affirmed
the initial finding that Heineke had sexually harassed a former student and
approved his termination. Heineke then filed a second motion for preliminary
injunction to enjoin his termination as well as an internal appeal of the president’s
decision to the faculty judicial board. Pending the outcome of that appeal, Heineke
remained on paid suspension. The district court denied Heineke’s second
preliminary injunction motion on the same grounds as the first, noting that his
“status has not changed since his first motion for a temporary restraining order or

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of irreparable harm. The district court failed to address the additional preliminary
injunction factors of likelihood of success on the merits, balance of the hardships
between the parties absent an injunction, and the public interest in granting the
injunction. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008). We review the
district court’s denial of a preliminary injunction for abuse of discretion. See Pom
Wonderful LLC v. Hubbard, 775 F.3d 1118, 1123 (9th Cir. 2014). We reverse and
remand for a complete application of the four-part preliminary injunction test.
The district court concluded that Heineke’s evidence of reputational damage,
loss of opportunity to pursue his chosen profession, and emotional distress did not
support a showing of irreparable harm. The district court read Sampson v. Murray,
415 U.S. 61 (1974), and this Circuit’s decisions applying Sampson, as rejecting
“assertions of irreparable harm stemming from lost income, reputational damage,
and psychological injury” that arise from an adverse employment decision. Citing
Sampson, 415 U.S. at 89–93 & n.68; Hartikka v. United States, 754 F.2d 1516 (9th
Cir. 1985); Kennedy v. Sec’y of Army, 191 F. 3d 460 (9th Cir. 1999). In Sampson,
the Court acknowledged that an extreme case of lost income or reputational harm
might constitute irreparable injury, but noted that generally “insufficiency of
savings or difficulties in obtaining other employment – external factors common to
preliminary injunction.” Heineke again appealed. Dkt. 7 (Case No. 17-17408). His
two appeals are consolidated.

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most discharged employees and not attributable to any unusual actions relating to
the discharge itself – will not support a finding of irreparable injury, however
severely they may affect a particular individual.” Sampson, 415 U.S. at 92 n. 68.
The district court erred when it interpreted this language in Sampson to
create a per se rule for all employment cases. Sampson specifically did not
foreclose the possibility that reputational damage and emotional distress may
represent irreparable harm.
The district court also erred by failing to address Chalk v. U.S. Dist. Court
Cent. Dist. of Cal., 840 F.2d 701 (9th Cir. 1988), in which we upheld an injunction
based on the finding that a school district’s decision to reassign a teacher to
administrative-only duties because of his AIDS diagnosis caused irreparable harm
in the form of loss of job satisfaction and emotional distress. Chalk, 840 F.2d at
709–10. Heineke has proffered evidence that he will experience emotional distress
and loss of job satisfaction as a result of his suspension. The district court therefore
abused its discretion by interpreting Sampson to create a per se rule for all
employment cases—that reputational damage, lost opportunity, and emotional
distress caused by a suspension or termination cannot constitute irreparable
harm—and by ignoring the impact of binding, relevant precedent from Chalk.
United States v. Hinkson, 585 F.3d 1247 (9th Cir. 2009).

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Moreover, the district court did not address all of the elements that must be
shown in order to support a preliminary injunction. In Chalk, we noted first that the
plaintiff demonstrated a likelihood of success on the merits of his Rehabilitation
Act claims, and second that the injuries of reputational harm, loss of opportunity,
and emotional distress resulting from that (likely provable) discrimination were the
type of non-compensable injury the law was designed to prevent. 840 F.2d at 704–
10. Chalk therefore suggests that in the employment discrimination context the
likelihood of success on the merits may inform the irreparable harm analysis.
Without any analysis regarding the likelihood of Plaintiff’s success on the merits—
including whether his suspension was discriminatory under the ADEA—the
district court could not evaluate what impact the strength of Plaintiff’s
discrimination claims had on the likelihood he would suffer an irreparable, non-
compensable injury absent an injunction.
On remand, the district court is therefore instructed to complete a full
analysis of the preliminary injunction factors to decide whether to issue the
preliminary injunction.
The district court’s order denying Plaintiff’s preliminary injunction motion
is thus REVERSED and REMANDED for consideration of all preliminary
injunction factors.

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