Opinion
2:98CV94-T
March 17, 1999
MEMORANDUM AND RECOMMENDATION
THIS MATTER is before the court upon the motions of defendants for summary judgment. Having carefully considered those motions, reviewed the pleadings, and conducted a hearing, the court enters the following findings, conclusions, and recommendation.
FINDINGS AND CONCLUSIONS
I. Background
The factual selling of this case is not in dispute; however, the legal import of those facts is contested. Plaintiff was the tax administrator of Cherokee County until his public employment was terminated after he returned from sick leave granted by the county under the Family Medical Leave Act.
Plaintiff was employed by Cherokee County between May 1989 and December 1996. During his tenure, he served as the county tax administrator — a position that combined the jobs of tax assessor and tax collector. Due to complaints plaintiff registered as to the workload, the county commissioners eliminated the position of tax administrator, removed plaintiff from the position of tax collector, and reappointed him as tax assessor without a decrease in pay or benefits.
In the fall of 1996, plaintiff took 30 days of medical leave. When he returned, he requested an additional 90 days, which initially was denied. After plaintiff's attorney wrote a letter to the county commissioners informing them that plaintiff was entitled to take the requested leave under the Family Medical Leave Act ("FMLA"), the commissioners reconsidered and granted the leave. Alerted to the law, however, the commissioners determined that plaintiff was a "key employee" under the FMLA and informed him that his job may not be waiting for him when he returned from leave, in the end, it was not. Defendants contend that the position of tax assessor is a key job in Cherokee County; they were required to have an assessor in place to send out tax bills in the fall of 1996; and, without an assessor, there would have been no revenue with which to run the county.
A backdrop to the leave problems plaintiff encountered in 1996 is the dispute concerning reevaluation of the tax values of real property. Cherokee County is among the North Carolina counties that contracts out the job of property reevaluation, and in 1995, it contracted with COTT Systems, Inc, to perform that task. When COTT submitted its reevaluations to the county, a number of the commissioners and the former tax appraiser, Deborah Coarsey, reviewed COTT's work by pulling the cards and noting on those cards any disagreements they had based on their personal knowledge of the property. It is plaintiff's contention that, within the system and without going to the press, he objected to the review process employed by the commissioners and the former tax appraiser, inasmuch as he believed that those individuals were unlawfully attempting to lower the valuation of their own property and the property of relatives through a means which put great pressure on the contractor to change those valuations, It is defendants' contention that plaintiff's concern was not with unlawful conduct, but with the commissioners using a review process that left him out of the loop. Plaintiff has asserted claims (1) under the first amendment for violation of his right to free speech, (2) under the Americans With Disabilities Act ("ADA") for the county's failure to reasonably accommodate his rheumatoid arthritis by affording him the full benefit of the FMLA, and (3) under the FMLA for the county's failure to hold his job open during the period he took FMLA leave. Plaintiff also seeks punitive damages. Defendants have moved for summary judgment as to all issues and parties. Defendants' motions for summary judgment will be discussed as they relate to all claims, seriatim.
II. Summary Judgment Standard Generally
On a motion for summary judgment, the moving party has the burden of production to show that there are no genuine issues for trial. Upon the moving party's meeting that burden, the nonmoving party has the burden of persuasion to establish that there is a genuine issue for trial.
When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. In the language of the Rule, the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving [sic] party, there is no "genuine issue for trial."Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87(1986) (citations omitted; emphasis in the original) (quoting Fed.R.Civ.P. 56). There must be more than just a factual dispute; the fact in question must be material and readily identifiable by the substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242(1986). The possibility, however remote, that plaintiff may have alleged a constitutional violation merits more than bald denials and summary dismissals. Wooten v. Shook, 527 F.2d 976, 977-78 (4th Cir. 1975).
By reviewing substantive law, the court may determine what matters constitute material facts. Anderson, supra. "Only disputes over facts that might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment." Id. at 248. A dispute about a material fact is "genuine" only if the evidence is such that "a reasonable jury could return a verdict for the nonmoving party." Id.
[T]he court is obliged to credit the factual asseverations contained in the material before it which favor the party resisting summary judgment and to draw inferences favorable to that party if the inferences are reasonable (however improbable they may seem).Cole v. Cole, 633 F.2d 1083, 1092 (4th Cir. 1980). Affidavits filed in support of a motion for summary judgment are to be used to determine whether issues of fact exist, not to decide the issues themselves. United States ex rel. Jones v. Rundle, 453 F.2d 147 (3d Cir. 1971). When resolution of issues of fact depends upon a determination of credibility, summary judgment is improper. Davis v. Zahradnick, 600 F.2d 458 (4th Cir. 1979).
III. Discussion
A. First Amendment Claim
Just as speech is not always protected under the first amendment, speech that has taken the form of a petition (be it a grievance made to a superior or a civil action filed in court) is not protectable unless it implicates other rights under the first amendment, such as to assemble, to associate, or to speak freely on a matter of legitimate public concern. In Day v. South Park Independent School Dist., 768 F.2d 696 (5th Cir. 1985), an untenured high-school teacher claimed that the school district violated her first-amendment rights when it refused to renew her contract after she filed a formal grievance attacking an unfavorable evaluation of her performance. In conducting its analysis, the Court of Appeals for the Fifth Circuit held, as follows:
When the [Supreme] Court has accorded protection to conduct under the petition clause, other first amendment rights, such as the right to assemble, to associate, or to speak freely on a matter of legitimate public concern, were implicated by the conduct in question and were principal concerns in the Court's decision that the conduct should be protected. None of the Supreme Court cases cited by Day support the proposition that her speech on a matter of personal concern, the act of an employee addressing her employment supervisors, is protected by the petition clause because she chose to clothe her address to them in a formal grievance, in the absence of any implication of the right to freely assemble or associate.
Other decisions that rest in part on the right-to-petition clause involve the exercise of first amendment rights in addition to the right to petition . . . . Other lower court cases evidence a similar admixture of the right to petition and the right to speak on matters of public concern.Id., at 701-02 (footnotes omitted). By requiring protectable speech, pure employment disputes can be weeded out from federal review. The well-reasoned opinion of Honorable Robert D. Potter, United States District Judge, in Baker v. Mecklenburg County, 853 F. Supp. 889 (W.D.N.C. 1994), aff'd, 48 F.3d 1215 (up., per curiam), 1995 WL 86436 (4th Cir. 1995), drives this point home:
Litigious expressions are among those expressions that are not automatically ascribed First Amendment shelter simply because they are filed. The assumption that all lawsuits are protected speech is a big one indeed. Just as to speak is not to sue, the Court believes that to sue is not to necessarily come under the rubric of the First Amendment's assorted rights to free expression. The notion that speaking is litigating is as much a non sequitur as the proposition that litigating is always speaking within the meaning of the First Amendment either as it was written, originally understood, or has since been interpreted. "Everyone exaggerates the importance of his or her own activity and it is therefore natural for lawyers to suppose that [behind] every legal pleading, however humble, comes trailing clouds of First Amendment glory." if public employee litigation is protected by the First Amendment at all, it must be because the lawsuit is of a character that involves the "public employee speak[ing] . . . as a citizen upon matters of public concern . . . ." Therefore, this Court must decide whether Plaintiff, as a public employee filing a lawsuit, was speaking as a citizen when he did so. Then the Court must also consider whether his lawsuit involved matters of public concern. Determining whether a lawsuit is of such a character that it implicates the public concern requires evaluating it by its, "content, form, and context . . . as revealed by the whole record." Id. This is an inquiry which must be determined as a matter of law, not fact.Id., at 893 (citations omitted). In this case, plaintiff contends that he made a grievance or voiced his concerns within proper channels concerning the actions of the commissioners. It is plaintiff's further contention that the subject matter of this grievance — misconduct of public officials — involved speech touching on a matter of public concern in that he believed the commissioners were self dealing. it is the right, if not the duty, of public employees to bring alleged unlawful conduct they perceive to the attention of proper authorities. Likewise, public employees should expect that they will not be penalized for such diligence. In this case, plaintiff's words are capable of two meanings: first, as defendants contend, they could have meant that plaintiff was upset that he had been bypassed in the review process; or second, as plaintiff contends, they could have meant that he was reporting unlawful conduct to the appropriate officials. Resolving all material issues of fact in plaintiff's favor, the court concludes that he has satisfied his burden of coming forward with cognizable evidence upon which a reasonable finder of fact could find in his favor. The undersigned, therefore, will recommend that defendants' motions for summary judgment as to plaintiff's first cause of action be denied.
B. Americans With Disabilities Act
A cause of action for discrimination in employment based upon disability is established where a plaintiff demonstrates that he or she (1) is an individual with a disability; (2) is otherwise qualified to perform job requirements, with or without reasonable accommodation; and (3) was discharged solely by reason of a handicap. Doe v. University of Maryland Medical Sys. Corp., 50 F.3d 1261, 1265 (4th Cir. 1995); 42 U.S.C. § 12112(a). Defendants contend that plaintiff's claim must be dismissed because he admitted during his deposition that his does not believe he was discharged because of his disability and, therefore, cannot satisfy the third element of an ADA claim.
To satisfy the first element, plaintiff must show that he was an individual with a disability. Plaintiff can satisfy that requirement by showing that he has an impairment that substantially limits one or more of the major life activities, a record of a disabling impairment, or that he was regarded by his employer as having such an impairment. 42 U.S.C. § 12102(2). In this case, plaintiff has presented evidence of a record of a disabling impairment: specifically, opinion letters from his doctors concerning his rheumatoid arthritis. Plaintiff has also presented evidence upon which a fact finder could determine that defendants perceived plaintiff to be a person with a disability in that they allowed him extensive medical leave. Whether plaintiff's rheumatoid arthritis or the limitations imposed actually amounted to a disabling condition is irrelevant. Plaintiff has satisfied his burden of coming forward with evidence on the first element, and there is no dispute as to the second element.
The troubling aspect of plaintiff's claim is not that he relies upon defendants' alleged failure to fully comply with the FMLA to show that they did not make a reasonable accommodation (a method allowable by the administratively created regulations), but that his sworn, unequivocal deposition testimony is that he does not believe he was terminated based upon his disability. The ADA requires a plaintiff to show that he was discharged solely by reason of his handicap. Doe v. University of Maryland Medical Sys. Corp., supra. The court must find that plaintiff's admission is fatal to further pursuit of a good-faith ADA claim and will recommend that defendants' motions for summary judgment on that claim be allowed.
C. Family Medical Leave Act Claim
The FMLA grants an "eligible employee" the right to 12 workweeks of leave over any period of 12 months: (1) because of the birth of the employee's child, in order to take care of the child; (2) because of the placement of a child with the employee for adoption or foster care; (3) in order to care for the employee's child, spouse or parent, if the child, spouse or parent has a serious health condition; or (4) because of a serious health condition that makes the employee unable to perform the functions of the employee's position. 29 U.S.C. § 2612(a)(1). It is undisputed in this case that when plaintiff returned from FMLA leave, his services were terminated and his position had already being filled by the former tax appraiser.
In seeking summary judgment on this claim, defendants contend that the termination of plaintiff's employment was appropriate as a matter of law because he was a key employee, his absence from his public post would have caused grievous harm to the county due to the fact it could not send out tax bills without a tax assessor in place, and no revenue could be collected if no tax bills were sent out. Plaintiff contends that he did not receive sufficient notice that he was a key employee, defendants have failed to comply with the statute to show that he is a key employee, and defendants failed to affirmatively show any grievous harm to the county that would have resulted had they reinstated him to his former position.
Congress enacted the Family Medical Leave Act ("FMLA"), 29, United States Code, Sections 2601 et seq., in order to afford individuals with serious health conditions up to 12 weeks of unpaid medical leave per year. See 29 U.S.C. § 2612(a)(1). When leave is required for a serious health condition of the employee or the employee's spouse, child or parent, the employee may take intermittent or reduced leave. 29 U.S.C. § 2612(b). The FMLA requires employers to reinstate employees to a same or similar position following their leave. 29 U.S.C. § 2614(a). If an employer fails to abide by this rule, liability results under Section 2615(a)(1). As an affirmative defense, an employer can assert that the position was eliminated:
The Court observes, however, that the FMLA provides employers with potential defenses to Section 2615(a)(1) claims. For instance, the FMLA imposes limitations on an employee's right to be reinstated after the employee completes her FMLA leave. § 2614(a)(3). Notably, an employee entitled to reinstatement is not entitled to "any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken leave." § 2614(a)(3)(B). The United States Department of Labor interprets this section as permitting an employer to deny reinstatement to an employee when the employer can prove that the employer would have laid the employee off even if the employee had not taken leave. 29 C.F.R. S 825.216(a) (1997). This is known as the "position-elimination defense."Cross v. Southwest Recreational Industries, Inc., 17 F. Supp.2d 1362, 1369 (N.D.Ga. 1998). This exception is found at 29, United States Code, Section 2614(b), which provides, as follows:
(b) Exemption concerning certain highly compensated employees
(1) Denial of restoration
An employer may deny restoration under subsection (a) of this section to any eligible employee described in paragraph (2) if —
(A) such denial is necessary to prevent substantial and grievous economic injury to the operations of the employer;
(B) the employer notifies the employee of the intent of the employer to deny restoration on such basis at the time the employer determines that such injury would occur; and
(C) in any case in which the leave has commenced, the employee elects not to return to employment after receiving such notice.
(2) Affected employees
An eligible employee described in paragraph (1) is a salaried eligible employee who is among the highest paid 10 percent of the employees employed by the employer within 75 miles of the facility at which the employee is employed.
The court agrees with plaintiff's argument that defendants' argument is in the nature of an affirmative defense and defendants have the burden of proving (1) notice of intent to terminate, (2) a showing of "substantial and grievous economic injury to the operations of the employer," and (3) a showing that plaintiff was within the top 10 percent of county employees in wage earnings. The first and third elements require objective showings; however, the second element is inherently subjective — just the type of issue juries were designed to resolve. Finding that genuine issues of material fact remain for the jury on this claim, the undersigned will recommend that plaintiff's FMLA claim go forward and defendants' motions for summary judgment be denied as to that claim.
D. Claim for Punitive Damages
In what is perhaps the clearest statement of the availability of punitive damages for constitutional and federal statutory torts, the Court of Appeals for the Fourth Circuit held in Cooper v. Paychex, Inc., 163 F.3d 598 (Table, Text in WESTLAW), Unpublished Disposition, 1998 WL 637274 (4th Cir. 1998), as follows:
Punitive damages are not warranted in every case of discrimination. See Stephens v. South Atl. Canners, Inc., 848 F.2d 484, 489-90 (4th Cir. 1988). Evidence sufficient to reach a jury on the issue of discrimination is not necessarily sufficient to warrant a punitive damages instruction. See Harris v. L L Wings. Inc., 132 F.3d 978, 982-83 (4th Cir. 1997). To warrant such an instruction, under both Title VII and 42 U.S.C. § 1981, the plaintiff must offer evidence which tends to show that defendant acted with "malice, an evil motive, or recklessness or callous indifference to a federally protected right." Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 306 (4th Cir. 1998) (quoting Stephens, 848 F.2d at 489).Id., 1998 WL 637274, at 11. A good-faith mistake in deciding whether plaintiff was a key employee under the FMLA would not satisfy Cooper however, if plaintiff is successful on his first-amendment claim, Cooper is again instructive, in that it found that defendants' conduct before the court could warrant the imposition of punitive damages:
Punitive damages may be warranted in discrimination cases when the employer (or its agent) deliberately deceives the court by consciously misrepresenting its true motives for an employment decision. See Merriweather v. Family Dollar Stores of Indiana, Inc., 103 F.3d 576, 582 (7th Cir. 1996); see, e.g., Cline, 144 F.3d at 306. Here the jury necessarily found that Reid lied when he testified about his reason for firing Cooper.Id., 1998 WL 637274, at 12. in this case, it is defendants' primary contention that they terminated plaintiff's employment not because of his exercise of any first-amendment right or right under the FMLA, but because his absence exposed the county to grievous financial loss. If the jury believes this, all is well; however, under Cooper, a jury could find for plaintiff and award punitive damages based upon defendants' conscious misrepresentation of their true motives. Plaintiff has stipulated that he does not seek punitive damages against the county. For these reasons, the undersigned will recommend that defendants' motions for summary judgment as to plaintiff's claim for punitive damages be denied.
E. Mitigation of Damages
"[M]itigation is ordinarily considered an affirmative defense that must be pleaded and proved by the employer." White v. Bloomberg, 501 F.2d 1379 (4th Cir. 1974). The undersigned can see no reason to grant summary judgment to defendants as to an affirmative defense on which they bear the burden of proof. Even so, in response to defendant's motion, plaintiff has provided some evidence of mitigation in showing that he let friends and business associates in the community know he needed a job, he sent out resumes, but was otherwise not able to seek further employment due to his degenerative arthritis. The undersigned will recommend that this request for summary judgment be denied.
F. Dismissal of Individual Defendants
1. Qualified immunity
The individual defendants seek dismissal of the claims asserted against them, contending that they are entitled to qualified immunity. "[T]he test for qualified immunity for executive officers is one of `objective legal reasonableness' — whether an official acting under the circumstances at issue reasonably could have believed that his action did not violate the constitutional rights asserted." Sevigny v. Dicksey, 846 F.2d 953, 956 (4th Cir. 1988) (citation omitted). And "[t]he contours of the right [violated by the officer] must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640(1987). In Robinson v. Balog, 160 F.3d 183 (4th Cir. 1998), the Court of Appeals for the Fourth Circuit held, as follows:
[A] reasonable government official would have known that Robinson and Marc's speech was entitled to constitutional protection under clearly established law at the time. Because the speech concerned the corrupt misuse of public funds, and because plaintiffs were called to provide their statements both by federal law enforcement officers and by a governmental board, it should have been apparent that the speech was constitutionally protected. We therefore hold that Balog, Guston, and Addison are not entitled to qualified immunity on the basis set forth by the district court.Id., at 185 (citation omitted). Assuming plaintiff's allegations of corruption are true, the individual defendants cannot contend that the law allowed any room for discharging a public employee who "blew the whistle" on such activity. As to dismissal of the individual defendants on the first cause of action, the undersigned will recommend denial of that request.
2. Individual Liability As to Statutory Employment Law Claims
The court agrees with the individual defendants that the reasoning of the Court of Appeals for the Fourth Circuit in Lissau v. Southern Food Service, Inc., 159 F.3d 177 (4th Cir. October 28, 1998), was that Title VII did not subject offending supervisory employees to suit because they were not "employers." Based on the broad extension of Title VII jurisprudence to other federal employment discrimination laws, the court believes that the reasoning of Lissau would be extended to the ADA and FMLA. See Williams v. Virginia Nat. Guard Bureau, 914 F.2d 250 (Table, Text in WESTLAW), Unpublished Disposition, 1990 WL 135860 (4th Cir. 1990).
In any event, plaintiff stipulated at the hearing that the ADA claim was not asserted against the individual defendants in any capacity and that the FMLA claim was only asserted against the individuals in their official capacities. Inasmuch as an official-capacity suit is, in reality, a suit against the county, the undersigned will recommend that any ADA claim asserted against the individual defendants in their official and individual capacities be dismissed (which is in the alternative to the earlier recommendation that the ADA claim be dismissed in its entirety), and that any FMLA claim asserted against the individual defendants in their individual capacities be dismissed.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that the motions of defendants for summary judgment be GRANTED in part and DENIED in part, as follows:
(1) DENIED as to plaintiff's first-amendment claim asserted under 42, United States Code, Section 1983;
(2) GRANTED as to plaintiff's ADA claim;
(3) DENIED as to plaintiff's FMLA claim;
(4) DENIED as to plaintiff's claim for punitive damages;
(5) DENIED as to defendants' affirmative defense of failure to mitigate damages;
(6) DENIED on the basis of qualified immunity;
(7) GRANTED as to any ADA claim asserted against the individual defendants in their official and individual capacities (which is an alternative recommendation to the earlier recommendation that the ADA claim be dismissed in its entirety); and
(8) GRANTED as to any FMLA claim asserted against the individual defendants in their individual capacities.
The parties are hereby advised that, pursuant to 28, United States Code, Section 636(b)(1)(C), written objections to the findings of fact, conclusions of law, and recommendation contained herein must be filed within ten (10) days of service of same. Failure to file objections to this Memorandum and Recommendation with the district court will preclude the parties from raising such objections on appeal. Thomas v. Arn, 474 U.S. 140 (1985), reh'g denied, 474 U.S. 1111(1986); United States v. Schronce, 727 F.2d 91 (4th Cir.), cert. denied, 46 U.S. 1208(1984).
This Memorandum and Recommendation is entered in response to the motions of defendants for summary judgment (#20 and #22).