Darby v. BratchDarby v. Bratch
Bryan E. Round, Kansas City, MO, for appellee.
Before WOLLMAN,1 Chief Judge, RICHARD S. ARNOLD and HANSEN,2 Circuit Judges.
RICHARD S. ARNOLD, Circuit Judge.
Susan Darby brought this action alleging that the defendants, the Kansas City, Missouri, Police Department, the Kansas City Board of Police Commissioners, the City of Kansas City, Missouri, and several individual employees,3 violated the Americans with Disabilities Act,
Specifically, Ms. Darby presents four major arguments on appeal:4 first, that the District Court incorrectly determined that the defendant, the Kansas City Board of Police Commissioners, was immune from suit pursuant to the Eleventh Amendment; second, that the Court incorrectly held that plaintiff failed to establish a prima facie case of retaliation under the Family and Medical Leave Act; third, that the Court erred in determining that plaintiff failed to establish a prima facie case of disability discrimination under the Americans with Disabilities Act; and fourth, that the Court failed to apply the Missouri Human Rights Act to disability discrimination in the area of employment. We affirm in part and reverse in part. We hold that the Kansas City Board of Police Commissioners is not immune from suit under the Eleventh Amendment, and that, on the present state of the record, triable issues of fact were presented under the Family and Medical Leave Act. In addition, we hold that the Missouri Human Rights Act does apply to disability discrimination in the area оf employment, but we affirm the judgment on that claim on other grounds. We also affirm as to the claim under the Americans with Disabilities Act.
In 1993, Ms. Darby began working for the Kansas City Police Department (KCPD) as a dispatcher in the communications unit. In 1994, she began experiencing symptoms of thyroid disease, including migraine headaches, heavy menstrual bleeding, weakness from loss of blood, difficulty concentrating, chills, digestive problems, trouble sleeping, bloating, extreme fatigue, difficulty breathing, increased heart rate, and anxiety. Ms. Darby was diagnosed with Graves‘s disease, a form of hyperthyroidism.
In March 1998, Ms. Darby applied for a transfer to the police academy. One of her supervisors, Captain Doug Weishar, advised Ms. Darby that he would approve this transfer if her use of sick leave decreased over the next six months. Soon after this agreement was made, Captain Weishar was replaced by Captain Rosilyn Allen. Captain Allen knew of the agreement between Ms. Darby and Captain Weishar, and indicated that she would honor it. Both were aware of Ms. Darby‘s diagnosis of Graves‘s disease. Between January 1998 and May 1998, Ms. Darby missed ten days and one hour of work due to her thyroid disease. On May 18, 1998, Captain Allen disapproved her transfer request and passed the request on to her superiors, noting that the monitoring of Dispatcher Darby‘s work attendance will continue.... Aрpellant‘s Appendix (App.) 289. Ms. Darby‘s thyroid disease continued to hinder her ability to attend work regularly.
Ms. Darby met with Captain Allen and Captain Terrie Hagedorn to discuss an improper helicopter ride-along on September 18, 1998. In a ride-along, an employee rides in a helicopter along with the pilot in order to observe the job the pilot is doing. This can be a regular part of training. The defendants, however, contend that the ride-along was improper because Ms. Darby did not obtain advance permission for it. The plaintiff‘s position is that the policy requiring advance permission did not apply to the portion of the Police Department in which she worked. The policy as written, App. 203, appears to support plaintiff‘s position. At the meeting with Captain Allen and Captain Hagedorn, Ms. Darby was advised that continued absences from work would not be tolerated. Ms. Darby was also informed that she was being transferred to a new shift with a different zone assignment.5 During the meeting, Ms. Darby stated that she thought a transfer was discriminatory. According to Ms. Darby‘s testimony, Captain Allen responded, I can show you discrimination. App. 291. The record indicates that Captain Allen knew of Ms. Darby‘s intention to use FMLA leave prior to this meeting.
On October 9, 1998, Ms. Darby applied for Family and Medical Leave Act leave. She met with Supervisors Hoskins and Hagedоrn to discuss her request. At this time, she was presented with an amended mid-year evaluation that included a reference to an excessive use of sick time. As stated by the District Court, it is [u]ncontroverted in the record... that Allen instructed Hagedorn to amend the mid-year evaluation for Darby to include a reference to Darby‘s absences due to her use of sick time. App. 292. These instructions were allegedly based on the attendance policy аt the KCPD, Policy 98-2. However, because the attendance policy did not permit an employee to be disciplined for the use of sick leave, but did allow an employee to be disciplined for the use of unpaid leave, Supervisor Hagedorn recommended that Ms. Darby be terminated for her use of unpaid leave. According to the defendants, Ms. Darby was also presented with two Incident Reports, one relating to the helicopter ride-along and one relating to excessive use of sick time.6
While on FMLA leave, Ms. Darby received an Incident Report citing her absences from work and the use of her unpaid leave. The Description of Allegation reads, dispatcher Darby has continuously utilized unpaid leave each of the last three years, in excess of the paid leave amount that the department grants employees of her tenure. App. 227. Thе report goes on to include the number of hours of unpaid leave Ms. Darby was granted in 1996, 1997, and 1998.7 There was no recommendation of discipline made in the revised Incident Report.
In April 1999, Ms. Darby planned to return to work. Because the Incident Reports were still pending, she contacted Captain Allen to determine if Captain Allen was planning to use the Reports to terminate her employment. When Ms. Darby met with Captain Allen, she was informed that bеcause of her use of sick time, she would not be promoted. Ms. Darby then returned to work with the same job assignment and the same rate of pay as she had before her FMLA leave. However, Ms. Darby testified that after returning to work she was not placed on the schedule or on roster lists used to circulate information.8 On April 28, 1999, Ms. Darby resigned from the KCPD. Because the Incident Reports regarding Ms. Darby‘s use of unpaid leave and the ride-along are still pending, she is precluded from being rehired by the KCPD.
This Court reviews a grant of summary judgment de novo. Iowa Coal Min. Co. v. Monroe County, 257 F.3d 846, 852 (8th Cir. 2001). After reviewing the record in the light most favorable to the nonmoving party, the Court will affirm the decision if there are no genuine issues of material fact. Id.
A. Eleventh Amendment Immunity
We first address Ms. Darby‘s contention that the District Court erred in granting Eleventh Amendment immunity to the Kansas City Board of Police Commissioners. The District Court determined that the Kansas City Board of Police Commissioners was a political subdivision of the state of Missouri, and was, thereforе, entitled to immunity. However, the District Court did not have the benefit of this Court‘s opinion in Gorman v. Easley, 257 F.3d 738 (8th Cir. 2001), cert. denied, 122 S.Ct. 865, 151 L.Ed.2d 739 (2002). In that case, we held that the Kansas City Board of Police Commissioners does not constitute an arm of the state for purposes of Eleventh Amendment immunity. Id. at 745. We based our reasoning, in part, on the Supreme Court‘s ruling in Auer v. Robbins, 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997), in which the Court held that the St. Louis Board of Police was not an arm of the state for Eleventh Amendment purposes. Gorman, 257 F.3d at 744 (internal quotations omitted).
Because our decision in Gorman is controlling on this issue, the District Court‘s determination that thе Kansas City Board of Police Commissioners was entitled to Eleventh Amendment immunity must be reversed.
B. Family and Medical Leave Act
Next, we address Ms. Darby‘s argument that the District Court erred in determining that she failed to establish a prima facie case of FMLA retaliation.
The FMLA provides eligible employees9 up to 12 workweeks of unpaid leave during any 12-month period.
The District Court determined that Ms. Darby did not suffer an adverse employment action. We disagree. Specifically, Ms. Darby points to three actions taken by her employer that qualify as adverse employment actions.
First, Ms. Darby was told upon returning to work in April 1999 that she would not be promoted. This is sufficient under our precedent to find an adverse employment action. See Davis v. Sioux City, 115 F.3d 1365 (8th Cir. 1997). In that case, we held that the transfer of an employee to another position of greater salary yet ha[ving] fewer opportunities for salary increases was a sufficiently adverse employment action to sustain a retaliation claim under Title VII. Davis, 115 F.3d at 1369. Additionally, we have held that [u]pon return from FMLA leave, employees are entitled to reinstatement to the same or an equivalent position without the loss of benefits.... Spangler v. Federal Home Loan Bank of Des Moines, 278 F.3d 847, 851 (8th Cir. 2002).
In the case at hand, Ms. Darby was specifically informed that she would not be promoted because of her use of sick leave. At this time, Ms. Darby had missed 60 days pursuant to her FMLA leave request in 1999. The record indicates that she was absent on unpaid leave for only five other days during 1999. App. 106. Though Ms. Darby was reinstated to the same position as she had before taking FMLA leave, it is apparent that she was reinstated with a definite loss of a benefit, namеly the ability to be promoted. There are three types of absences involved here: paid sick leave, which presumably is a contractual right of the employee, FMLA leave, which is unpaid, and other unpaid leave. Of course, an employer could discipline an employee for taking sick leave when she is not sick, but there is no evidence in this record to that effect. In addition, an employee could be disciplinеd for taking unpaid leave not covered by the FMLA, but, as we have noted, there were only five such days during 1999. The employer does not argue, at least on this appeal, that its discipline was based upon these five days.
Third, because the Incident Report regarding Ms. Darby‘s use of unpaid leave is currently pending, KCPD policies make it impossible for her to be rehired. This too is sufficiently adverse to Ms. Darby‘s employment to sustain a claim of retaliation under the FMLA. Again, the Incident Repоrt focused on the use of unpaid leave by Ms. Darby, an activity protected by statute.10
For these reasons, we conclude that the plaintiff presented sufficient evidence to create a genuine issue of material fact on the question whether defendants retaliated against her for her use of FMLA leave. She did not have an exemplary attendance record, to say the least, but her statutory rights, together with her contractuаl right to sick leave, must be respected. On the record presently before us, a reasonable juror could conclude that there was a causal connection between adverse employment actions suffered by the plaintiff and her use of FMLA leave. Summary judgment is therefore inappropriate on this question.
The next issue that must be addressed is whether a retaliation claim under the FMLA can be brought against public officials in their individual capacities.11 This issue is one of first impression for our Court. Other courts have analyzed this issue by comparing the definition of employer under the FMLA to the definition of employer under the Fair Labor Standards Act (FLSA),
This Court has addressed the issue of personal liability of an employer under the FLSA in Rockney v. Blohorn, 877 F.2d 637 (8th Cir. 1989). In that case, the Court decided whether personal liability for an employer exists under ERISA. In the course of our discussion, we compared the definition of employer under ERISA to that under the FLSA. We implicitly assumed in Rockney that individual liability does exist under the FLSA. However, we have not directly addressed the issue of individual liability for public officials under either the FLSA or the FMLA.
It seems to us that the plain language of the statute decides this question. Employer is defined as any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer[.]
C. Americans with Disabilities Act
We next address Ms. Darby‘s contention that the District Court erred in determining that she failed to present a prima facie case under the ADA. The ADA prohibits employers from discriminating against a qualified individual with a disability because of the disability of such individual....
In order to establish a prima facie case of ADA discrimination, Ms. Darby must show that: (1) she is disabled as defined by the ADA; (2) she is qualified to pеrform the essential functions of her job with or without reasonable accommodation; and (3) she suffered an adverse employment action due to her disability. Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944, 948 (8th Cir. 1999).
The District Court held that Ms. Darby is disabled within the meaning of the ADA, and there seems to be no dispute about that. App. 299. Defendants assert, however, that she was not qualified to perform the essential functions of the job, one of which is regular attendance. We must agree with defendants in part. Presence at the job is no doubt essential, except in cases where the job could be done from home, which is not claimed here. See Nesser v. Trans World Airlines, Inc., 160 F.3d 442, 445-46 (8th Cir. 1998). Ms. Darby says that transfer to the police academy would have been a reasonable accommodation, but again, attendance would surely be essential.
As we understand plaintiff‘s ADA claim, it is that she was discharged on account of her disability. The difficulty is that plaintiff was not discharged. She voluntarily resigned. Defendants had taken her back as an employee, and she had been on the job for only a few days when she quit. Constructive discharge would be a theoretically sound response to this argument, except that plaintiff had been back at work for only a short period of time. We do not believe a reasonable trier of fact could have found that plaintiff had stuck it out long enough to conclude reasonably that working conditiоns were intolerable. Accordingly, the dismissal of the ADA claim will be affirmed.
D. Missouri Human Rights Act
Ms. Darby also argues that the District Court failed to apply the Missouri Human Rights Act to the area of employment and limited its application to discrimination in housing. Defendants concede that the MHRA does apply to discrimination in employment and that the District Court erred in ruling to the contrary. Appellee‘s Brief at 10. We agree. However, a claim under the MHRA is analyzed in the samе manner as a claim under the ADA. See Nesser, 160 F.3d at 445. Therefore, if summary judgment is appropriate on Ms. Darby‘s ADA claim, it is appropriate on her MHRA claim. Because we agree with the District Court that Ms. Darby failed to present sufficient evidence for a reasonable juror to conclude that Ms. Darby was discriminated against under the ADA, we affirm the Court‘s grant of summary judgment on Ms. Darby‘s MHRA claim.
III.
The judgment of the District Court is affirmed in part and reversed in part, and this case is remanded to the District Court for further proceedings consistent with this opinion.