Gray v. Mallory et al

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
JOY GRAY 	PLAINTIFF
v. 	Case No. 4:25-cv-01057-LPR
RENEE MALLORY, in her Individual
capacity and in her Official capacity as
Secretary of the Arkansas Department of
Health; DON ADAMS, in his Individual
capacity and in his Official capacity as Chief
of Staff at the Arkansas Department of
Health; CASSIE COCHRAN, in her
Individual capacity and in her Official
capacity as Deputy Director of Programs at
the Arkansas Department of Health;
CRISTY SELLERS, in her Individual
capacity and in her Official capacity as
Director of Health Advancement at the
Arkansas Department of Health; and
REGGIE ROGERS, in his Individual
capacity and in his Official capacity as
Deputy Chief Legal Counsel at the Arkansas
Department of Health1 	DEFENDANTS
ORDER
Earlier this year, Charlie Kirk was assassinated. 	In the decade leading up to his
assassination, Mr. Kirk had become an influential and high-profile advocate for political, social,
and religious conservatism. It thus should be no surprise that many Americans felt a desire to say
1 The Complaint is brought against, among other people, “Don Adams, [i]n his Individual capacity and in his Official
capacity as Chief of Staff in the Office of the Governor.” Compl. (Doc. 1) at 1. But Mr. Adams does not have that
role, and he never did. Mr. Adams is the Chief of Staff at the Arkansas Department of Health. See Ex. 4 (Decl. of
Don Adams) to Defs.’ Resp. in Opp’n to Mot. for Prelim. Inj. (Doc. 17-4) at 1. The Court finds that Ms. Gray intended
to sue Mr. Adams, as opposed to the Governor’s Chief of Staff. Accordingly, the Court directs the Clerk to update
the caption and docket of this case to reflect Mr. Adams’ actual position. If Ms. Gray intended to sue the Governor’s
Chief of Staff—either instead of Mr. Adams or in addition to Mr. Adams—the Complaint will need to be amended
for that purpose. However, because there is a pending Motion to Dismiss (which is not the subject of today’s Order),
the Court suggests that Ms. Gray hold off on amending her Complaint for now. In resolving the Motion to Dismiss,
the Court may conclude that the Complaint has other deficiencies that Ms. Gray could potentially remedy through
amendment.
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their piece about his assassination. 	And, consistent with the law of truly large numbers, some
Americans chose to make comments that were incredibly insensitive to or dismissive of Mr. Kirk’s
murder, hateful towards Mr. Kirk personally, or supportive of political assassinations generally.
A subset of those people were fired from their jobs for making such comments.2
In the instant case, the Arkansas Department of Health fired Joy Gray after she made
comments on Facebook about Mr. Kirk’s assassination.3 All parties acknowledge that Ms. Gray’s
termination was linked to the nature of her comments.4 Ms. Gray, therefore, claims that her firing
constitutes unconstitutional retaliation for protected speech.5 	She brings suit against the
Department and a number of Department officials under 42 U.S.C. § 1983, 42 U.S.C. § 1985, and
section 16-123-106 of the Arkansas Civil Rights Act.6 	Currently pending before the Court is
Ms. Gray’s request for preliminary injunctive relief.7 Her primary request is that the Court order
2 Br. of Amicus Curiae American Civil Liberties Union of Arkansas (Doc. 26) at 4–6; accord Nicholas Bogel-
Burroughs & Bernard Mokam, A Broad Wave of Firings Followed Charlie Kirk’s Assassination, N.Y. T IMES (Sep.
26, 2025), https://www.nytimes.com/2025/09/26/us/kirk-critics-fired-free-speech.html (“More than 145 people in a
wide range of occupations have been fired or disciplined after they made statements about the assassination of Charlie
Kirk.”).
3 See Pl.’s Br. in Supp. of Mot. for Prelim. Inj. (Doc. 3) at 2–3; Aff. of Joy Gray (Doc. 6) at 3; Defs.’ Resp. in Opp’n
to Mot. for Prelim. Inj. (Doc. 17) at 1–2, 6, 10–11. Commenting on a Facebook post concerning Mr. Kirk, Ms. Gray
said, “Oh no, what if he’s ok?” Ex. 1 to Defs.’ Resp. in Opp’n to Mot. for Prelim. Inj. (Doc. 17-1) at 1. Then, in
response to another commenter characterizing Ms. Gray’s statement as “evil,” Ms. Gray said “[Y]eah[,] just like his
quote about needing some unfortunate deaths for the 2nd amendment. He knew the risks and was shot doing his evil
in the public.” Id. at 1–2. Other Facebook comments by Ms. Gray included: (1) “[W]ell[,] he died for his cause”; (2)
“I’m sure Charlie prayed all the time and look how that worked. Or did it? We’ll never know”; and (3) “I’m all for
reform and agendas at any time. But, meh on his death. I guess in a weird way maybe Charlie will have died for
reform to happen. Omg[,] maybe the prayers DID work[.]” Id. at 3–5.
4 See Pl.’s Br. in Supp. of Mot. for Prelim. Inj. (Doc. 3) at 2–3; Defs.’ Resp. in Opp’n to Mot. for Prelim. Inj. (Doc. 17)
at 1–2, 6, 10–11.
5 Compl. (Doc. 1) at 4; Pl.’s Br. in Supp. of Mot. for Prelim. Inj. (Doc. 3) at 4–7.
6 Compl. (Doc. 1) at 4–6. In addition to her retaliation-for-protected-speech allegation, Ms. Gray also claims that the
Department violated her procedural due process rights. Specifically, she claims that the Department failed to afford
her a pre-termination hearing to contest her termination and a post-termination hearing to clear her name. See id. at
4–5.
7 Pl.’s Mot. for Prelim. Inj. (Doc. 2).
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the Department to re-hire her (or at least continue paying her) for the pendency of this litigation.8
Her fallback request is that the Court order the Department to immediately provide her a “name-
clearing hearing” so that she can “explain herself and put out her side of [the story] and try to
maybe minimize the [reputational] damage[].”9
For the reasons set out in Parts I and II below, the Court denies Ms. Gray’s request for
preliminary relief in its entirety. But the Court wishes to emphasize that its denial should not be
misunderstood as a comment on the merits of Ms. Gray’s retaliation-for-protected-speech claim.
Given the embryonic state of the litigation, the current paucity of hard evidence on issues critical
to a fair application of Pickering,10 and the prospect of additional relevant evidence,11 Ms. Gray’s
retaliation-for-protected-speech claim may end up presenting an exceedingly difficult and close
merits question. The Court need not, and does not, make any predictions today about which party
is likely to ultimately prevail on the merits.
The reason the Court need not make any merits-related prediction concerning the
retaliation-for-protected-speech claim is that Ms. Gray has failed to show that she is likely to
experience irreparable harm in the absence of the preliminary injunctive relief she requested. And,
8 See Compl. (Doc. 1) at 6; Pl.’s Mot. for Prelim. Inj. (Doc. 2) at 1–2.
9 See Nov. 17, 2025 Hr’g Tr. (rough) at 12:05:18–12:06:25; Pl.’s Mot. for Prelim. Inj. (Doc. 2) at 1–2. A name-
clearing hearing is, admittedly, something of an odd duck. According to governing caselaw, a name-clearing hearing
provides an employee or former employee an opportunity to challenge “stigmatizing” statements an employer has
made public about the employee or former employee. See Winskowski v. City of Stephen, 442 F.3d 1107, 1110 (8th
Cir. 2006). The idea seems to be that “[a]n employee’s liberty interests are implicated where the employer levels
accusations at the employee that are so damaging as to make it difficult or impossible for the employee to escape the
stigma of those charges.” Id. (quoting Winegar v. Des Moines Indep. Cmty. Sch. Dist., 20 F.3d 895, 899 (8th Cir.
1994)). 	And, in such circumstances, the procedural due process protections of the Fourteenth Amendment “are
vindicated by ‘a name-clearing hearing at a meaningful time’ during which the employee can respond to the
employer’s accusations.” Id. (quoting Schleck v. Ramsey Cnty., 939 F.2d 638, 642 (8th Cir. 1991)); see also Codd v.
Velger, 429 U.S. 624, 627 (1977) (“[T]he remedy mandated by the Due Process Clause of the Fourteenth
Amendment . . . . where a[n] . . . employee has been stigmatized in the course of a decision to terminate his
employment is solely to provide the person an opportunity to clear his name.”) (quotation and citation omitted)).
10 Pickering v. Bd. of Educ., 391 U.S. 563 (1968).
11 See Nov. 17, 2025 Hr’g Tr. (rough) at 1:21:25–1:22:32.
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as the Eighth Circuit has clearly explained, “[t]he failure of a movant to show irreparable harm is
an ‘independently sufficient basis upon which to deny a preliminary injunction.’”12 Accordingly,
the Court will withhold forming and expressing an opinion on the merits of the retaliation-for-
protected-speech claim until the record is more fully developed.
I. 	The Absence of Irreparable Harm
The Supreme Court and the Eighth Circuit have long emphasized that “[a] preliminary
injunction is an ‘extraordinary and drastic remedy.’”13 This is especially so when a federal court
is being asked to enjoin an action of a state government. In such circumstances, both separation-
of-powers issues and federalism issues loom large. 	After all, plaintiffs are asking an unelected
federal judge to interfere with the operations of an elected branch of a state even though the federal
judge has not yet determined whether the state violated the Constitution or federal law.14
Judge Bibas, writing for the Third Circuit, puts it somewhat more poetically: “A preliminary
injunction forces a party to act or desist from acting, not because the law requires it, but because
the law might require it. In this sense, it is like judgment and execution before trial.”15 Judges
should think long and hard before they exercise that type of power.
The burden of proving entitlement to preliminary relief falls on a plaintiff. 	And the
Supreme Court and the Eighth Circuit have explained that a plaintiff is not entitled to a preliminary
12 Hotchkiss v. Cedar Rapids Cmty. Sch. Dist., 115 F.4th 889, 893 (8th Cir. 2024) (alteration in original) (quoting
Sessler v. City of Davenport, 990 F.3d 1150, 1156 (8th Cir. 2021)).
13 Tumey v. Mycroft AI, Inc., 27 F.4th 657, 664 (8th Cir. 2022) (alteration in original) (quoting Munaf v. Geren, 553
U.S. 674, 689 (2008)).
14 It is true, of course, that part of the preliminary injunction analysis calls for a judge to look at a plaintiff’s likelihood
of success on the merits. But this factor is evaluated using either the “fair chance” standard or the “more likely than
not” standard. See Planned Parenthood Minn., N. D., S. D. v. Rounds, 530 F.3d 724, 730–33 (8th Cir. 2008) (en
banc). In the best of circumstances, a predictive guess (often based on very limited information) about whether it is
more likely than not that a state has violated the Constitution or federal law is significantly different (in degree and in
kind) from a full-and-final determination that a state actually has violated the Constitution or federal law.
15 Del. State Sportsmen’s Ass’n, Inc. v. Del. Dep’t of Safety & Homeland Sec., 108 F.4th 194, 200 (3d Cir. 2024)
(internal quotations and citations omitted), cert. denied sub nom., Gray v. Jennings, 145 S. Ct. 1049 (2025).
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injunction unless she shows that she “is likely to suffer irreparable harm in the absence of
preliminary relief.”16 	That is because “[t]he basis of injunctive relief in the federal courts has
always been irreparable harm and inadequacy of legal remedies.”17 	Said a little differently, a
plaintiff’s likelihood of suffering irreparable harm is the only thing that can justify the incredibly
aggressive use of judicial power to restrain the behavior of a defendant (especially a state
defendant) before it is conclusively proven that the defendant did anything unlawful.
Irreparable harm is harm for which “a party has no adequate remedy at law” because the
party’s “injuries cannot be fully compensated through an award of damages.”18 	And, on the
present record, Ms. Gray has not shown that she is likely to suffer irreparable harm in the absence
of a preliminary injunction. Harm, sure. But not irreparable harm. The loss of a job—yes, even
a government job—does not typically constitute irreparable harm in and of itself. That much has
been made crystal clear by the Supreme Court.19 It is also not particularly surprising—because a
terminated employee can be made whole by money damages (and perhaps reinstatement) if she
wins her case.20
Ms. Gray does not assert that she will be unable to be made whole by money damages at
the end of her case. 	Indeed, her Complaint affirmatively seeks such damages.21 	Nor does
Ms. Gray suggest any unique circumstance that might create an atypical irreparable harm related
to the loss of a job. 	Ms. Gray does not, for example, suggest that losing her job will lead to
16 Hotchkiss, 115 F.4th at 894 (quoting Benisek v. Lamone, 585 U.S. 155, 158 (2018) (per curiam)).
17 Id. at 893 (quoting Grasso Enters., LLC v. Express Scripts, Inc., 809 F.3d 1033, 1039 (8th Cir. 2016)).
18 Grasso, 809 F.3d at 1040 (quoting Gen. Motors Corp. v. Harry Brown’s, LLC, 563 F.3d 312, 319 (8th Cir. 2009)).
19 See Sampson v. Murray, 415 U.S. 61, 88–90 (1974).
20 See id. at 90 (“The possibility that adequate compensatory or other corrective relief will be available at a later date,
in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.” (quoting VA. Petroleum
Jobbers Ass’n v. Fed. Power Comm’n, 259 F.2d 921, 925 (D.C. Cir. 1958))).
21 See Compl. (Doc. 1) at 6.
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bankruptcy, or to an inability to obtain life-saving medication. 	Instead, dedicating only one
sentence of her briefing to irreparable harm, she places all her eggs in the presumption-of-
irreparable-harm basket.22 That is, Ms. Gray’s entire irreparable-harm argument boils down to a
quote from a Supreme Court plurality in Elrod v. Burns: “The loss of First Amendment freedoms,
for even minimal periods of time, unquestionably constitutes irreparable [harm].”23
Let’s call this the Elrod maxim. The Court can’t really fault Ms. Gray for pointing to the
Elrod maxim and just leaving it at that. As one legal scholar has noted, many courts do the exact
same thing.24 	“Courts employing the presumption [of irreparable harm] in constitutional cases
have not engaged in lengthy elaborations of the reasons for the presumption’s use.”25 	Instead,
“[t]hey simply cite[] the Supreme Court’s decision in Elrod v. Burns as grounds for the
presumption.”26 This unfortunate practice has left plaintiffs with the perception that a finding of
irreparable harm automatically flows from a finding of likelihood of success on the merits of a
First Amendment constitutional claim. 	But, as the Eighth Circuit has made clear, this
“interpretation of . . . Elrod is simply not the law . . . .”27
22 See Pl.’s Br. in Supp. of Mot. for Prelim. Inj. (Doc. 3) at 6.
23 Id. (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)).
24 See Anthony DiSarro, A Farewell to Harms: Against Presuming Irreparable Injury in Constitutional Litigation, 35
H ARV. J. L. & PUB . POL ’ Y 743, 763 (2012).
25 Id.
26 Id. (footnote omitted).
27 Hotchkiss, 115 F.4th at 894. 	Courts blindly and blithely relying on the presumption of irreparable harm in
constitutional cases presents real danger. “The presumption obscures the perhaps discomforting reality that many
constitutional infractions produce either no injury or one that damages can adequately redress.” DiSarro, supra note
24, at 746. 	The presumption thus “invites applications for preliminary injunctions in constitutional cases by
eliminating what is usually the most difficult element for a plaintiff to satisfy.” Id. at 747. And this opens the door
to judicial tyranny. Cf. Trump v. CASA, Inc., 606 U.S. 831, 857–58 (2025) (equating attempts to “[w]av[e] away
attention to the limits on judicial power” with “embracing an imperial Judiciary”); see also DiSarro, supra note 24, at
750 (“There is no power, the exercise of which is more delicate, which requires greater caution, deliberation, and
sound discretion, or is more dangerous in a doubtful case, than the issuing [of] an injunction. It is the strong arm of
equity, that never ought to be extended, unless to cases of great injury where courts of law cannot afford an adequate
or commensurate remedy in damages.” (quoting 2 JOSEPH STORY, COMMENTARIES ON E QUITY J URISPRUDENCE AS
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To be sure, in the Eighth Circuit, showing a likelihood of success on the merits in a
constitutional case—whether under the First Amendment or some other Amendment—usually
indicates irreparable harm is likely in the absence of a preliminary injunction. 	That is because,
“[i]n most instances, constitutional violations constitute irreparable harm.”28 But most is not all,
and “the assertion of a possible constitutional violation does not release plaintiffs from their burden
of showing that irreparable harm” is likely to occur in the absence of preliminary relief.29 This is
true whether or not we happen to be in the First Amendment context. Indeed, the Eighth Circuit
has explicitly rejected the universal application of the Elrod maxim in a First Amendment case.30
The real question to be answered—inside and outside the First Amendment context—is
whether a plaintiff can show that the challenged state action will likely threaten or violate her
constitutional rights in the absence of preliminary relief.31 And, logically speaking, that is only
possible where the constitutional harm is presently occurring or set to occur in the imminent future.
A DMINISTERED IN E NGLAND AND A MERICA, § 959b, at 172 n.1 (11th ed. 1873))). But the danger goes beyond the
academic:
In preliminary injunction proceedings, important constitutional questions will be decided tentatively
and usually upon an incomplete evidentiary record produced at abbreviated and rushed hearings.
They will lead to appeals that apply the least rigorous appellate standard. 	Final judgments on
constitutional questions, by contrast, will produce definitive holdings and be subject to
nondeferential appellate review.
DiSarro, supra note 24, at 747. This Court is not the only one—and certainly not the most eloquent one—to recognize
the serious risks that the presumption of irreparable harm poses to our constitutional order. See generally Del. State
Sportsmen’s Ass’n, 108 F.4th 194.
28 Morehouse Enters., LLC v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 78 F.4th 1011, 1017 (8th Cir.
2023) (citing Powell v. Ryan, 855 F.3d 899, 904 (8th Cir. 2017)).
29 Id. (citing Sessler, 990 F.3d at 1156).
30 See Hotchkiss, 115 F.4th at 893–94; accord Rodgers v. Bryant, 942 F.3d 451, 466 (8th Cir. 2019) (Stras, J.,
dissenting in part) (“To be sure, as the court claims, showing a strong likelihood of success on the merits generally
entitles a plaintiff to a preliminary injunction in First Amendment cases. But this maxim is not absolute and only gets
the court so far. After all, a preliminary injunction ‘does not follow as a matter of course from a plaintiff’s showing
of a likelihood of success on the merits,’ even in First Amendment cases, and the district court must still consider the
other factors and show its work.” (first citing Telescope Media Grp. v. Lucero, 936 F.3d 740, 762 (8th Cir. 2019); and
then quoting Benisek, 585 U.S. at 158)).
31 See Morehouse, 78 F.4th at 1017–18 (“The plaintiffs have not clearly shown how the Final Rule will prevent them
from engaging in constitutionally protected conduct.”).
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Accordingly, rightly understood, the Elrod maxim is limited to cases where “First Amendment
interests were either threatened or in fact being impaired at the time relief was sought.”32
The reason the Elrod maxim holds true in most First Amendment cases is that most First
Amendment cases seek to enjoin a law or regulation that is actively chilling a plaintiff’s speech.
Think of the paradigmatic speech case. A plaintiff seeks to enjoin a law that threatens her with
criminal sanctions for advocating pro-life positions near an abortion clinic. 	In the absence of a
preliminary injunction, the law would continue to be effective and thus continue to chill the
plaintiff’s speech every day until the end of the trial. Each moment the law remained in effect, the
law would actively impact the plaintiff’s ability to speak. It is that type of harm—the active loss
of the ability to engage in protected speech—that courts consider irreparable. And it is that type
of present and future harm that is at issue in the overwhelming majority of First Amendment cases.
So, in the overwhelming majority of cases, the Elrod maxim makes eminent sense.
Our case is different. 	Ms. Gray’s challenge is not to a current or prospective law,
regulation, or similar government action that is actively chilling (or imminently will begin chilling)
her speech. Instead, Ms. Gray is challenging the Department’s decision to terminate her from her
job. 	That is a single, discrete act that took place entirely in the past. 	The Department is not
currently chilling her speech. It can’t be; she is no longer working for the Department. Therefore,
32 Hotchkiss, 115 F.4th at 894 (quoting Elrod, 427 U.S. at 373); see also Nat’l Treasury Emps. Union v. United States,
927 F.2d 1253, 1254 (D.C. Cir. 1991) (“A preliminary injunction is not appropriate, however, ‘unless the party seeking
it can demonstrate that First Amendment interests are either threatened or in fact being impaired at the time relief is
sought.’” (quoting Wagner v. Taylor, 836 F.2d 566, 577 n.76 (D.C. Cir. 1987))).
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the Department no longer has any power over her or her speech.33 At present, Ms. Gray can speak
her mind without any fear of retribution from the Department of Health.34
The Court acknowledges, of course, that Ms. Gray may currently be feeling the sting of
losing her job, and that sting may lead her to rein in her social commentary. Indeed, one element
of a First Amendment retaliation claim is that the Government’s action must be severe enough to
“chill a person of ordinary firmness from continuing [to speak].”35 	But the sting of a past
termination is not the same as the fear of a future termination. The latter actively chills speech.
The former does not.
In fact, if the Court were to preliminarily reinstate Ms. Gray, the Court might actually be
manufacturing irreparable harm instead of mitigating it. Imagine Ms. Gray back at the Department
with the knowledge that the Department wants to fire her for the comments she made about
Mr. Kirk. 	Ms. Gray would know that, at the end of this case (depending on its outcome), the
33 Things would be different, of course, if Ms. Gray were still working at the Department and the Department were
threatening to fire her for what she said about Mr. Kirk. In that situation, the Department’s threat would be currently
chilling her from engaging in further speech related to Mr. Kirk’s assassination—because she would reasonably
surmise that further speech on the subject would likely result in her termination. But that is not the case at bar.
34 In any event, the Court notes that Ms. Gray has not even suggested that she wants to speak further concerning
Mr. Kirk. 	She has not said it in her Complaint, in her preliminary injunction request, in her affidavit, or at the
preliminary injunction hearing. Then-Judge Thomas, writing for the D.C. Circuit, found a similar point important
when considering the limits of the Elrod maxim:
The appellants assert that they are entitled to preliminary relief because the ban would discourage
them from appearing, speaking, or writing. 	They correctly point out that “[t]he loss of First
Amendment freedoms, for even minimal periods of time,” may constitute irreparable injury. A
preliminary injunction is not appropriate, however, “unless the party seeking it can demonstrate that
‘First Amendment interests [are] either threatened or in fact being impaired at the time relief [is]
sought.’” The appellants have shown neither. Nothing in the record convinces us that the appellants
will cease speaking or writing before the district court resolves their constitutional challenges.
Nat’l Treasury Emps. Union, 927 F.2d at 1254–55 (alterations in original) (internal citations omitted).
35 Aldridge v. City of St. Louis, 75 F.4th 895, 899 (8th Cir. 2023) (quoting Molina v. City of St. Louis, 59 F.4th 334,
338 (8th Cir. 2023)); see also Gonzalez v. Bendt, 971 F.3d 742, 745 (8th Cir. 2020) (“To establish a claim for First
Amendment retaliation, [a plaintiff] must prove ‘(1) he engaged in a protected activity, (2) [the Government] took
adverse action against him that would chill a person of ordinary firmness from continuing in the activity, and (3) the
adverse action was motivated at least in part by the exercise of the protected activity.’” (quoting Spencer v. Jackson
Cnty., 738 F.3d 907, 911 (8th Cir. 2013))).
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Department might be free to fire her based on her past comments or any further similar comments
she makes. In that scenario, Ms. Gray’s speech is very likely to be chilled. The Court is not going
to interfere with the employment decision of a state agency (or require it to expend money it will
never recoup) where doing so could increase the irreparable harm faced by Ms. Gray.
It’s worth noting that the Eighth Circuit is not the only circuit to acknowledge that the
Elrod maxim is more limited than it seems at first blush. The D.C. Circuit “has construed Elrod
to require movants to do more than merely allege” a First Amendment violation “to satisfy the
irreparable [harm] prong of the preliminary injunction frame-work.”36 Among other things, they
must “establish they are or will be engaging in constitutionally protected behavior” and “that the
allegedly 	impermissible 	government 	action 	would 	chill 	allowable 	individual 	conduct.”37
Similarly, in the Sixth Circuit, the Elrod maxim is just a “general rule” and “does not do away
with the ‘indispensable’ prerequisite of showing a likelihood of immediate and irreparable
harm.”38 	So “[e]ven if [p]laintiffs present a winning case on the merits, they must show that,
absent the court’s intervention,” the government action being challenged is “likely to be applied
to them while the case proceeds.”39 The Third Circuit seems to travel the same path, looking for
an active, current, and ongoing chill of speech by way of threatened government action.40
36 Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 301 (D.C. Cir. 2006).
37 Id.
38 Moms for Liberty - Wilson Cnty. v. Wilson Cnty. Bd. of Educ., 155 F.4th 499, 513 (6th Cir. 2025) (citing D.T. v.
Sumner Cnty. Schs., 942 F.3d 324, 326–27 (6th Cir. 2019)).
39 Id. at 514 (citing Sumner Cnty. Schs., 942 F.3d at 327–28).
40 See Hohe v. Casey, 868 F.2d 69, 72–73 (3d Cir. 1989) (“It is well-established that the loss of First Amendment
freedoms, for even minimal periods of time, unquestionably constitutes irreparable [harm]. But the assertion of First
Amendment rights does not automatically require a finding of irreparable [harm] . . . . Rather[,] the plaintiffs must
show a chilling effect on free expression.” (internal citations and quotations omitted)); see also Del. State Sportsmen’s
Ass’n, 108 F.4th at 203, 204 (noting that “[c]onstitutional harm is not necessarily synonymous with the irreparable
harm necessary for issuance of a preliminary injunction[,]” and, thus, a plaintiff “must show that, without a preliminary
injunction, they will more likely than not suffer irreparable [harm] while proceedings are pending.” (emphasis added)
(first quoting Hohe, 868 F.2d at 73; and then citing Reilly v. City of Harrisburg, 858 F.3d 173, 179 (3d Cir. 2017))).
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The Second Circuit is even clearer about the limits of the Elrod maxim in public
termination cases.41 	After acknowledging that “the threat of permanent discharge can cause
irreparable harm in the First Amendment context[,]” the Second Circuit explained that there is no
such irreparable harm after a termination has already occurred:
Appellants filed the at-issue motions for preliminary injunctions after they were
terminated. Therefore, they cannot show the “specific present objective harm or a
threat of specific future harm” required of them. 	Appellants’ reliance on the
Supreme Court’s decision in Elrod for the proposition that ongoing irreparable
harm can exist post-termination is inapt. . . . 	Although it is true that most Elrod
plaintiffs had already been terminated, the Elrod Court did not find irreparable harm
as to the post-termination plaintiffs. It found irreparable harm only for “one of the
respondents 	[who] 	was 	. 	. 	. 	threatened 	with 	discharge” 	and 	other 	“class
respondents . . . threatened with discharge or [who] had agreed to provide support
for the Democratic Party in order to avoid discharge.” Because harm for these still-
employed plaintiffs was “both threatened and occurring at the time of [their]
motion” for a preliminary injunction, these plaintiffs could demonstrate irreparable
harm. Elrod instructs that because Appellants here had already been terminated at
the time of their preliminary injunction motions, they were not suffering ongoing
harms or threats of harm. 	Having already been discharged, their harm is
compensable, not irreparable. 	Therefore, we deny Appellants’ request for
injunctive relief in the form of reinstatement and backpay.42
The bottom line of all this is that Ms. Gray cannot just point to Elrod and call it a day. To
show that irreparable harm is likely in the absence of a preliminary injunction, more is required of
her. And she has not given us anything more. So, she cannot make out this indispensable part of
the preliminary injunction framework. This means she is not entitled to a preliminary injunction,
41 See New Yorkers for Religious Liberty, Inc. v. City of New York, 125 F.4th 319, 328–29 (2d Cir. 2025), petition for
cert. filed, No. 25-126 (U.S. Aug. 1, 2025).
42 Id. (internal citations omitted). Relatedly, the Second Circuit noted that a preliminary injunction ordering a fired
public employee back to work “do[es] nothing to abate” the chill on speech because “the source of the ‘chill’ is the
permanent loss of” employment. Savage v Gorski, 850 F.2d 64, 67–68 (2d Cir. 1988); see also Am. Postal Workers
Union, AFL-CIO v. USPS, 766 F.2d 715, 722 (2d Cir. 1985) (“[W]e fail to understand how a chilling of the right to
speak or associate could logically be thawed by the entry of an interim injunction, since the theoretical chilling of
protected speech . . . stems . . . from the threat of permanent discharge, which is not vitiated by an interim injunction.”).
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even if the other Dataphase factors were to cut strongly in her favor.43 Accordingly, the Court
may (and does) deny her request without considering those other factors.
II. Ms. Gray’s Request for an Immediate Name-Clearing Hearing
The Court now turns to Ms. Gray’s request for preliminary relief on her name-clearing-
hearing claim. 	With regard to that request, the Court’s analysis primarily focuses on whether
Ms. Gray has shown a likelihood of success on the merits of her claim. 	This Dataphase factor
often has an outsized role to play in the preliminary injunction framework. In the Court’s view,
Ms. Gray is very unlikely to succeed on the merits of her claim.44 She lacks even a fair chance of
success. This is for several reasons.
First, Ms. Gray did not properly present this issue in her preliminary injunction request.
To 	be 	sure, 	the 	Motion 	itself 	requests 	that 	the 	Court: 	(1) 	“enjoin[] 	Defendants
from . . . disseminating stigmatizing reasons [for Ms. Gray’s termination] without offering a
constitutionally adequate name-clearing hearing”; and (2) “[o]rder Defendants to provide a
prompt, neutral name-clearing hearing if they continue to publish or rely on stigmatizing
accusations . . . .”45 	And the attached brief quickly mentions a name-clearing hearing in the
Introduction and Factual Background sections.46 	But the brief does not include any legal
43 See Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981) (“Whether a preliminary injunction
should issue involves consideration of (1) the threat of irreparable harm to the movant; (2) the state of the balance
between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability
that movant will succeed on the merits; and (4) the public interest.”).
44 In the Eighth Circuit, “establish[ing] a procedural due process claim against a state employer for deprivation of a
protected liberty interest in a public employee’s reputation” requires a plaintiff to satisfy the following four elements:
“(1) an official made a defamatory statement that resulted in a stigma; (2) the defamatory statement occurred during
the course of terminating the employee; (3) the defamatory statement was made public; and (4) an alteration or
extinguishment of a right or legal status.” Crooks v. Lynch, 557 F.3d 846, 849 (8th Cir. 2009) (quoting Brown v.
Simmons, 478 F.3d 922, 923 (8th Cir. 2007)). In addition to these elements, a plaintiff “must prove he requested and
was denied a name-clearing hearing.” Id. (citing Winskowski, 442 F.3d at 1112).
45 Pl.’s Mot. for Prelim. Inj. (Doc. 2) at 1–2.
46 See Pl.’s Br. in Supp. of Mot. for Prelim. Inj. (Doc. 3) at 2, 3.
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arguments whatsoever about the name-clearing-hearing claim. 	The Argument section focuses
exclusively on the retaliation-for-protected-speech claim.47 	That section makes arguments
concerning the likelihood of success on the merits, irreparable harm, balance of the equities, and
the public interest with respect to the retaliation-for-protected speech claim. But there’s not a peep
with respect to the name-clearing-hearing claim. It is true that Ms. Gray’s reply brief addresses
the name-clearing-hearing claim.48 But a plaintiff can’t raise issues in a reply brief that were never
developed in her opening brief.
Second, Ms. Gray does not appear to have ever requested a name-clearing hearing. There
is evidence in the record that she inquired about, was informed about, and pursued the
Department’s grievance/appeal process.49 	Her grievance/appeal was denied.50 	But there is no
evidence in the record to suggest that she then (or ever) requested a name-clearing hearing. And
the Eighth Circuit has made clear that a person is only entitled to a name-clearing hearing if they
request one.51 Ms. Gray’s position appears to be that her inquiries about the grievance and appeal
process were close enough to count as a request for a name-clearing hearing.52 Based on the very
limited evidentiary record currently before the Court, the Court does not agree. Perhaps additional
evidence will come to light to change the Court’s mind, but right now that appears highly unlikely.
Third, the Court is far—very far—from being persuaded that the statements made by the
Department were “so damaging as to make it difficult or impossible for [Ms. Gray] to escape the
47 See id. at 3–7.
48 See Pl.’s Reply Br. in Supp. of Mot. for Prelim. Inj. (Doc. 23) at 9–10.
49 See Compl. (Doc. 1) at 3; Pl.’s Reply Br. in Supp. of Mot. for Prelim. Inj. (Doc. 23) at 10; Aff. of Joy Gray (Doc.
6) at 3–4.
50 See supra note 49.
51 See Crooks, 557 F.3d at 849 (a plaintiff “must prove he requested and was denied a name-clearing hearing”).
52 See Nov. 17, 2025 Hr’g Tr. (rough) at 11:59:00–12:00:29.
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stigma of those charges.”53 	If the statements don’t meet that threshold, they don’t count as
stigmatizing and thus don’t trigger the name-clearing-hearing requirement. The Eighth Circuit has
explained that “[t]he stigma must be significant, and it usually involves allegations of dishonesty,
immorality, racism, or a similar character-demeaning charge.”54 Indeed, the Eighth Circuit has
“distinguished claims of general misconduct or unsatisfactory performance from claims involving
direct dishonesty, immorality, criminality[,] or racism.”55 	Only the latter meet the necessary
stigma threshold.
The Court is not exactly clear which statement or statements Ms. Gray alleges to be the
stigmatizing ones. 	Perhaps she is referring to the Notice of Disciplinary Action, which says
Ms. Gray was discharged because she “posted on social media unprofessional posts/comments to
a public incident that had occurred on Wednesday, September 10, 2025.”56 The Notice also notes
that “the [Department] received a complaint regarding social media posts by [Ms.] Gray.”57 These
statements—which do not discuss even generally the content or viewpoint of Ms. Gray’s social
media comments—come nowhere close to meeting the “so damaging” threshold. 	Generically
accusing someone of posting unprofessional comments is not the same as accusing them of
“dishonesty, immorality, criminality[,] or racism.”58
53 Winskowski, 442 F.3d at 1110 (quoting Winegar v. Des Moines Indep. Cmty. Sch. Dist., 20 F.3d 895, 899 (8th Cir.
1994)).
54 Correia v. Jones, 943 F.3d 845, 848 (8th Cir. 2019) (quoting Crews v. Monarch Fire Prot. Dist., 771 F.3d 1085,
1092 (8th Cir. 2014)).
55 Id. (quoting Crews, 771 F.3d at 1092).
56 Ex. C (Termination Communication) to Aff. of Joy Gray (Doc. 8) at 8.
57 Id.
58 Correia, 943 F.3d at 848 (quoting Crews, 771 F.3d at 1092).
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The Notice of Disciplinary Action included an attachment that listed the policies that the
Department believed to be violated by Ms. Gray’s posts.59 One policy prohibited “[t]he use of
threatening or abusive language or actions, posting [of] offensive material, any harassment, or
discourteous, indecent, or immoral conduct.”60 This is not stigmatizing under the Eighth Circuit’s
standard. Part of the policy prohibits posting offensive material or acting in a discourteous way.
And it is this part that logically lines up with the Notice of Disciplinary Action’s accusation that
Ms. Gray made unprofessional social media posts/comments. In context, the Notice’s reference
to this policy would not reasonably suggest to a future employer (or anyone else) that Ms. Gray
used threatening or abusive language, or engaged in harassment, indecent conduct, or immoral
conduct.
The other policy included in the attachment is so broadly worded that it also does not add
anything to the mix in terms of stigma. 	An employee could violate this policy by “engag[ing]
in . . . conduct . . . that may be injurious to the [Department], or which interferes with [its] efficient
operations,” or which “damages the reputation of [the Department],” or which “interferes with the
[Department’s] ability to serve customers and the public . . . .”61 Once again, this policy’s inclusion
as an attachment to the Notice of Disciplinary Action would not reasonably suggest to anyone that
Ms. Gray engaged in conduct that amounted to “dishonesty, immorality, criminality[,] or
racism.”62
Ms. Gray’s Complaint, affidavit, and preliminary injunction motion imply that the
Department’s response to her grievance was stigmatizing. 	But the Court finds nothing in the
59 Ex. C (Termination Communication) to Aff. of Joy Gray (Doc. 8) at 10.
60 Id.
61 Id.
62 Correia, 943 F.3d at 848 (quoting Crews, 771 F.3d at 1092).
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Department’s response stigmatizing at all.63 	There is no reference to the underlying reason
Ms. Gray was terminated. In her affidavit, Ms. Gray does say that the Department “denied [her]
grievance and asserted, incorrectly, that [she] had ‘refused’ to submit a rebuttal.”64 Ms. Gray also
says that the Department “cited” as a reason for her termination the “reaction” she had in a meeting
with the Department’s Legal Counsel and the Director of Health Advancement.65 Putting aside
the lack of documentary evidence to back up these assertions, there is no evidence that these two
statements were made part of her file or otherwise publicized. And, in any event, they too do not
directly imply “dishonesty, immorality, criminality[,] or racism.”66
Lastly, Ms. Gray’s affidavit notes that she “was not afforded a name[-]clearing hearing to
rebut stigmatizing reasons disseminated within the agency and to prospective employers, including
insinuations about [her] honesty, temperament, and fitness for public service.”67 To the extent this
is supposed to be affirmative evidence of such statements, the Court gives it no weight. Ms. Gray’s
assertion is entirely conclusory. What specific statements concerning honesty, temperament, and
fitness for public service is she talking about, and to whom were they made? We do not know,
because Ms. Gray does not tell us.68
63 Ex. D (Grievance Submissions and Denial) to Aff. of Joy Gray (Doc. 8) at 12.
64 Aff. of Joy Gray (Doc. 6) at 3.
65 Id. at 3–4.
66 Correia, 943 F.3d at 848 (quoting Crews, 771 F.3d at 1092).
67 Aff. of Joy Gray (Doc. 6) at 4.
68 The only other possible statement of which Ms. Gray might be complaining is a statement made by the Department’s
Legal Counsel in a meeting with Ms. Gray and her supervisor. 	See Aff. of Joy Gray (Doc. 6) at 3. 	Referring
collectively to Ms. Gray’s social media comments concerning Mr. Kirk, the Department’s Legal Counsel accused
Ms. Gray of “victim-blaming.” See id. Putting aside the fact that there is no evidence this statement was published
or disseminated widely within the Department, this statement does not suggest “dishonesty, immorality, criminality[,]
or racism.” Correia, 943 F.3d at 848 (quoting Crews, 771 F.3d at 1092). And, of course, to the extent Ms. Gray is
claiming stigma from the social media posts themselves, she made those statements. The mere fact that a spotlight
was put on her social media comments because of her termination does not transform those comments into stigmatizing
statements made by the Department.
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To make a long story short, Ms. Gray has not shown a likelihood of success on the merits
of her name-clearing-hearing claim.69 Indeed, Ms. Gray is so far from a likelihood of success on
the merits—which courts generally understand to be the most important factor of the preliminary
injunction framework—that the Court would exercise its discretion not to issue a preliminary
injunction even if the other factors cut as strongly as possible in her favor. As many a court has
made plain, “the absence of a likelihood of success on the merits strongly suggests that preliminary
injunctive relief should be denied . . . .” 70
Ms. Gray’s analysis of the other three factors is paper-thin. 	She says only this: “As to
irreparable harm, Plaintiff needs to get her side of this story out. As to injury to Defendants, there
will be none by having a hearing. 	It is in the public interest for constitutional rights to be
observed.”71 Ms. Gray’s single-sentence argument for each of the non-merits-related Dataphase
factors is insufficient to carry her burden on those factors. 	But, again, even if she had met her
burden on those factors, and even if they all strongly cut in her favor, the Court would not grant a
preliminary injunction, because Ms. Gray’s chance of success on the merits of her name-clearing-
hearing claim is close to zero.
CONCLUSION
For the reasons stated above, the Court DENIES the Motion for Preliminary Injunction in
its entirety.
69 Given what the Court has already said about the merits of the name-clearing-hearing claim, the Court need not
determine whether placing stigmatizing information into a personnel file on its own constitutes publication.
70 CDI Energy Servs. v. W. River Pumps, Inc., 567 F.3d 398, 402 (8th Cir. 2009) (emphasis added); see also Craig v.
Simon, 980 F.3d 614, 617 (8th Cir. 2020) (“The likelihood of success on the merits is ‘[t]he most important of the
Dataphase factors.’” (quoting Shrink Mo. Gov’t PAC v. Adams, 151 F.3d 763, 764 (8th Cir. 1998))); Baird v. Bonta,
81 F.4th 1036, 1040 (9th Cir. 2023) (“[Likelihood of success on the merits] is the most important factor. . . . Thus, a
court need not consider the other factors if a movant fails to show a likelihood of success on the merits.” (internal
quotation marks and citations omitted)).
71 Pl.’s Reply Br. in Supp. of Mot. for Prelim. Inj. (Doc. 23) at 10 (cleaned up).
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IT IS SO ORDERED this 21st day of November 2025.
________________________________
LEE P. RUDOFSKY
UNITED STATES DISTRICT JUDGE
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