United States District Court, D. Colorado
T. Babcock, Judge
case is before me on Plaintiff the EEOC's Motion for
Preliminary Injunction [Doc # 202]. After consideration of
the motion, all related pleadings, and the case file, as well
as the arguments presented at the hearing held on April 30,
2019, I deny the EEOC's motion as set forth below.
March 25, 2013, Defendant CollegeAmerica filed a state court
action (the “Larimer County Case”) against Debbi
D. Potts, whose interests the EEOC represents in this case,
alleging that she breached her Separation Agreement and
demanding the return of $7, 000 paid to her under the
Agreement. The Larimer County Case was stayed upon the filing
of this action by the EEOC and remained so until late 2018.
Prior to trial in this case, the Court dismissed the
EEOC's claim for unlawful interference with statutory
rights pursuant to § 7(f)(4) of the ADA. The case
proceeded to trial on the EEOC's retaliation claim, and
the jury returned a verdict in favor of CollegeAmerica. The
EEOC filed a post-trial appeal of the dismissal of § its
7(f)(4) claim, and the Tenth Circuit reversed the dismissal
based on a new legal theory that CollegeAmerica presented at
trial when it argued that Ms. Potts breached the Separation
Agreement by reporting adverse information to the EEOC
without first notifying CollegeAmerica. This case is
currently set for a 3-day court trial on the EEOC's
§ 7(f)(4) claim commencing November 18, 2019.
Larimer County Case is set for trial on May 13-14, 2019. On
March 22, 2019, the Larimer County Court ordered that trial
will proceed on that date “with the exception of
hospitalization or death of [a party], counsel, or
counsel's immediate family.” The Larimer County
Court further ordered that any filings other than trial
related materials will be stricken. In its statement of the
case filed in the Larimer County Case on March 26, 2019,
CollegeAmerica stated that the case involved Ms. Potts'
promise that she would not “intentionally with
malicious intent (publicly or privately) disparage the
reputation of CollegAmerica or any of its related
entities” and that she breached this promise in
statements made to former CollegeAmerica employee, Ken
Barnhart, through the social networking site LinkedIn and in
the motion filed March 26, 2019, the EEOC requests that
CollegeAmerica be preliminarily enjoined from asserting any
breach of contract claim under the Separation Agreement, or
from otherwise using the Separation Agreement to pursue a
claim or judgment against Ms. Potts, including in the pending
Larimer County Case.
preliminary injunction serves to preserv[e] the relative
positions of the parties until a trial on the merits can be
held.” DTC Energy Grp., Inc. v. Hirschfeld,
912 F.3d 1263, 1269-70 (10th Cir. 2018). “A preliminary
injunction is an extraordinary remedy never awarded as of
right.” Winter v. Natural Res. Def. Council,
555 U.S. 7, 24 (2008). A party may be granted a preliminary
injunction only when “the right to relief [is] clear
and unequivocal.” Schrier v. Univ. of Colo.,
427 F.3d 1253, 1258 (10th Cir. 2005) (quotations omitted).
Under Fed.R.Civ.P. Rule 65, a party seeking a preliminary
injunction must show: “(1) the movant is substantially
likely to succeed on the merits; (2) the movant will suffer
irreparable injury if the injunction is denied; (3) the
movant's threatened injury outweighs the injury the
opposing party will suffer under the injunction; and (4) the
injunction would not be adverse to the public
interest.” Fish v. Kobach, 840 F.3d 710, 723
(10th Cir. 2016)).
“ ‘[B]ecause a showing of probable irreparable
harm is the single most important prerequisite for the
issuance of a preliminary injunction, the moving party must
first demonstrate that such injury is likely before the other
requirements will be considered.” First W. Capital
Mgmt. Co. v. Malamed, 874 F.3d 1136, 1141 (10th Cir.
2017) (quoting Dominion Video Satellite, Inc. v. Echostar
Satellite Corp., 356 F.3d 1256, 1260 (10th Cir. 2004)).
“Demonstrating irreparable harm is ‘not an easy
burden to fulfill.'” Id. (quoting
Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250,
1258 (10th Cir. 2003)). “[T]he movant ‘must
demonstrate a significant risk that he or she will experience
harm that cannot be compensated after the fact by money
damages.'” Id. (quoting Fish, 840
F.3d at 751).
EEOC argues that Ms. Potts will suffer irreparable harm if
the Larimer County Case proceeds to trial before the trial in
this case because she is unable to pay a $7, 000 judgment;
would likely lose job opportunities if judgment is entered
against her; and could face exacerbated harms of wasted time,
stress, and reputational harm if the Larimer County Case had
to be tried a second time based on the outcome of trial in
this case. The identified potential harms to Ms. Potts are
largely speculative and fairly typical of those faced by any
defendant who has judgment entered against them.
EEOC also argues that the Larimer County Case is likely to
have a chilling effect on other CollegeAmerica employees'
willingness to file charges or cooperate with it. As
reflected in CollegeAmerica's Amended Complaint, its
statement of the case filed with the Larimer County Court,
and representations made on the record to this Court,
CollegeAmerica's claim against Ms. Potts in the Larimer
County Case is limited to the question of whether she
breached the Separation Agreement by making disparaging
comments against it to its former employee, Ken Barnhart,
through the social networking site LinkedIn and in email. By
way or relief, CollegeAmerica seeks to recover the $7, 000 it
paid to Ms. Potts under the terms of the Separation
Agreement. It is highly unlikely and speculative that
resolution of this limited claim would have a chilling effect
on other CollegeAmerica employees or negatively impact the
EEOC's ability to pursue its § 7(f)(4) claim in this
case. While the EEOC rightly notes that CollegeAmerica has
changed its position on the nature of its claim against Ms.
Potts throughout the history of this case, Ms. Potts is not
without recourse from both this Court and the Larimer County
Court should it attempt to do so again in the trial of the
Larimer County Case.
Because the EEOC has failed to show that either the EEOC or
Ms. Potts would suffer irreparable harm if CollegeAmerica was
to prevail on its claim in the Larimer County Case before the
merits of the EEOC's claim in this case were decided, it
is not entitled to the extraordinary remedy of injunctive
relief, and I need not give further ...