United States District Court, D. Arizona
G. Campbell United States District Judge
Irina Beloozerova filed a complaint in state court against
Defendant Dignity Health, doing business at Barrow
Neurological Institute (“BNI”), alleging various
claims related to Defendant's intention to terminate her
employment on July 1, 2018. Doc. 1-1 at 14-32. Defendant
removed the action to this Court based on diversity
jurisdiction. Doc. 1. At a hearing on June 29, 2018, the
Court granted a temporary restraining order
(“TRO”) that prevented Defendant from taking any
adverse employment action against Plaintiff. Doc. 13. On July
24, 2018, the Court held an evidentiary hearing on
Plaintiff's motion for a preliminary injunction. Doc. 31.
After considering evidence submitted at the hearing and
arguments made in writing and at the hearing, the Court will
deny the motion and dissolve the TRO.
is a biologist who specializes in brain physiology and has
worked as a researcher at BNI since 2000. Doc. 6-1
¶¶ 3-4. The 1999 letter offering Plaintiff a job at
BNI stated that her employment would be “at
will.” Ex. 53 at 3. BNI's Appointments and
Promotions Policy (the “Policy”) states, however,
that Plaintiff and others in her position can eventually
obtain “standing, ” and describes procedures BNI
must follow to terminate such employees. Ex. 9 at 13-16.
Plaintiff and Defendant disagree on whether Plaintiff can be
terminated at will or enjoys greater job protections under
condition of her research position, Plaintiff is required to
obtain external funding in the form of grants from
governmental or other research-funding organizations to cover
half of her salary, half of her fringe benefits,
administrative costs,  and the full cost of running her
laboratory. Court's Livenote Tr. dated July 24, 2018
(“Tr.”) at 54-57; Doc. 6-1 ¶ 12; Doc. 12-2
at 2, ¶ 5. Plaintiff obtained such a grant from the
National Institutes of Health (“NIH”) during some
years of her employment, but the NIH funding ended in 2012.
Doc. 12-2 at 3, ¶¶ 11-12. Since that time,
Plaintiff's salary and research have been covered by
“gap funding” provided by BNI and related
entities. Id. “Gap funding is provided, when
available, and when in BNI strategic interests, if an
individual who has had sustained, external support should
temporarily lose that funding.” Ex. 1 at 1. Gap funding
“cannot continue indefinitely.” Id.
August 17, 2017, Plaintiff had not secured external funds to
replace the NIH grant. Doc. 12-2 at 3, ¶¶ 11-12.
BNI therefore gave Plaintiff notice of its intent to
terminate her employment:
In accordance with appointments and promotions and with gap
funding policies, and after much deliberation, this letter
shall serve as notice that your employment as an Associate
Professor in the Division of Neurobiology will end once funds
on hand to support your full-time employment have been
exhausted (the “Separation Date”), which is
projected to be no later than July 1, 2018.
Ex. 1 at 1. Plaintiff initially did not challenge this
decision. Indeed, Plaintiff testified at the hearing that
Defendant was entitled to terminate her for this reason.
See Tr. at 58-59.
December 2017, Plaintiff secured a three-year grant from the
National Science Foundation (“NSF”). Doc. 6-1
¶ 19. The NSF grant totaled $450, 000, payable at the
rate of $150, 000 per year. Tr. at 64. Plaintiff immediately
informed Defendant of this award in an effort to reverse the
termination decision. Doc. 6-1 ¶ 22. Dr. Ronald Lukas,
Vice President for Research at BNI, congratulated Plaintiff
and suggested that the award appeared to cover
Plaintiff's expenses through the end of 2018. Doc. 12-2
at 9. But Dr. Lukas also expressed concern that additional
funding would be required to maintain Plaintiff's
position. Id. After reviewing the NSF grant,
BNI's Research Oversight Committee (“ROC”)
concluded that it was not sufficient to “sustain a
competitive research program” and that Plaintiff would
be terminated as scheduled on July 1, 2018. Doc. 12-2 at 3,
¶ 16. Plaintiff appealed the ROC's decision in March
2018, but Defendant affirmed the decision on May 14, 2018.
Ex. 23. Plaintiff then filed this action alleging breach of
contract and other wrongs. Plaintiff obtained the TRO, and
seeks a preliminary injunction, on the basis of her breach of
preliminary injunction is ‘an extraordinary remedy
never awarded as of right.'” Benisek v.
Lamone, 138 S.Ct. 1942, 1943 (2018) (per curiam)
(quoting Winter v. Nat. Res. Def. Council, Inc., 555
U.S. 7, 24 (2008)). Such an injunction “should not be
granted unless the movant, by a clear showing,
carries the burden of persuasion.'” Lopez v.
Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (emphasis in
original) (quoting Mazurek v. Armstrong, 520 U.S.
968, 972 (1997) (per curiam)). The movant must
“establish that [she] is likely to succeed on the
merits, that [she] is likely to suffer irreparable harm in
the absence of preliminary relief, that the balance of
equities tips in [her] favor, and that an injunction is in
the public interest.” Winter, 555 U.S. at 20.
if a plaintiff can only show that there are ‘serious
questions going to the merits' - a lesser showing than
likelihood of success on the merits - then a preliminary
injunction may still issue if the ‘balance of hardships
tips sharply in the plaintiff's favor,' and
the other two Winter factors are satisfied.”
Shell Offshore, Inc. v. Greenpeace, Inc.,
709 F.3d 1281, 1291 (9th Cir. 2013) (emphasis in original)
(quoting Alliance for the Wild Rockies v. Cottrell,
632 F.3d 1127, 1135 (9th Cir. 2011)); see Short v.
Brown, 893 F.3d 671, 675 (9th Cir. 2018). The Ninth
Circuit has explained:
For the purposes of injunctive relief, “serious
questions” refers to questions which cannot be resolved
one way or the other at the hearing on the injunction and as
to which the court perceives a need to preserve the status
quo lest one side prevent resolution of the questions or
execution of any judgment by altering the status quo. Serious
questions are substantial, difficult and doubtful, as to make
them a fair ground for litigation and thus for more
deliberative investigation. Serious questions need not
promise a certainty of success, nor even present a
probability of success, but must involve a fair chance of
success on the merits.
Rep. of the Phil. v. Marcos, 862 F.2d 1355, 1362
(1988) (en banc) (internal quotation marks and ...