Casey v. City of Glencoe, Alabama et al

Filing 39

MEMORANDUM OPINION as more fully set out in order. Signed by Magistrate Judge Harwell G Davis, III on 03/31/16. (SPT )

FILED
2016 Mar-31 PM 01:23
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION

SUSAN CASEY,

)
)
Plaintiff
)
)
vs.
)
)
CITY OF GLENCOE, ALABAMA, )
)
Defendant
)

Case No. 4:14-cv-00595-HGD

MEMORANDUM OPINION
The above-entitled civil action is before the court on the Motion for Summary
Judgment filed by defendant, City of Glencoe, Alabama. (Doc. 27). The parties have
consented to the jurisdiction of the undersigned magistrate judge pursuant to 28
U.S.C. § 636(c). (Doc. 38). Plaintiff has filed a response to the motion for summary
judgment (Doc. 33), and defendant has filed a reply (Doc. 36). The matter is now
ready for disposition.
PROCEDURAL BACKGROUND
Plaintiff, Susan Casey, filed the complaint in this action on April 1, 2014,
against the City of Glencoe, Alabama, and Charles Gilchrist. (Doc. 1). She asserts
claims of interference with her rights under the Family Medical Leave Act (FMLA)
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and retaliation for assertion of her FMLA rights. She also asserts a separate state law
claim for mental and emotional distress, based on the alleged failure of the City of
Glencoe to “permit[ ] her federally protected right under FMLA” and the fact that she
“was informed that she would not be re-appointed to her position the day after she
returned to work after hospitalization and was recuperating from a serious medical
condition.” (Id. at ¶ 42). Defendant Gilchrist filed a Motion for Judgment on the
Pleadings (Doc. 16). The undersigned entered a report and recommendation,
recommending that the motion be granted and that Gilchrist be dismissed with
prejudice as a defendant. (Doc. 25). The report and recommendation was adopted
and accepted by the district court, without objection. (Doc. 26).
SUMMARY JUDGMENT STANDARD
This matter is considered by the court pursuant to the provisions of Rule 56,
Fed.R.Civ.P. Summary judgment “shall [be granted] if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Rule 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247,
106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). Thus, summary judgment is
appropriate where the non-movant “fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 332, 106
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S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The substantive law governing the action
determines whether an element is essential. Liberty Lobby, 477 U.S. at 248, 106 S.Ct.
at 2510. A party seeking summary judgment always bears the initial responsibility
of informing the district court of the basis for its motion, identifying those portions
of the pleading, depositions, answers to interrogatories, and admissions on file, if any,
which it believes demonstrate the absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323, 106 S.Ct. at 2553; see Brown v. Crawford, 906 F.2d 667,
669 (11th Cir. 1990), cert. denied, 500 U.S. 933, 111 S.Ct. 2056, 114 L.Ed.2d 461
(1991).
This circuit clearly holds that summary judgment should be entered when the
moving party has sustained its burden of showing the absence of a genuine issue of
material fact when all the evidence is viewed in the light most favorable to the nonmoving party, Sweat v. Miller Brewing Co., 708 F.2d 655 (11th Cir. 1983); see also,
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89
L.Ed.2d 538 (1986). “The mere existence of a scintilla of evidence in support of the
plaintiff’s position will be insufficient; there must be evidence on which the jury
could reasonably find for the plaintiff.” Liberty Lobby, 477 U.S. at 252, 106 S.Ct. at
2512. The evidence of the non-movant is to be believed and all justifiable inferences
are to be drawn in his or her favor. Id. at 255, 106 S.Ct. at 2514, citing Adickes v. S.
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H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1608-09, 26 L.Ed.2d 142
(1970). However, “[a] court need not permit a case to go to a jury when the
inferences that are drawn from the evidence and upon which the non-movant relies
are ‘implausible.’” Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir.
1996) (quoting Matsushita Elec. Indus. Co., 475 U.S. at 593, 106 S.Ct. at 1359. It is,
therefore, under this standard that the court must determine whether the plaintiff can
meet her burden of coming forward with sufficient evidence as to each material
element of her claim sufficient to permit a reasonable jury to find in her favor.
FACTUAL BACKGROUND
The court finds the following undisputed facts. Where any facts are disputed,
they are viewed in the light most favorable to plaintiff.
The City of Glencoe is a municipal corporation that had more than 4000 and
less than 6000 inhabitants at all times relevant to this action. (Doc. 28-2: Blackerby
Aff., at ¶¶ 6-7 and Ex. 1). The City of Glencoe is recognized as a separate
governmental organization by the U.S. Census Bureau. (Id. at ¶ 7 and Ex.1). The
City of Glencoe does not have a civil service board. (Id. at ¶ 10). At all relevant
times, the City of Glencoe has had a proper FMLA notice from the U.S. Government
Printing Office (WH Publication 1420, entitled “Your Rights under the Family and
Medical Leave Act of 1993”) prominently posted at city hall, detailing the Act’s
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provisions (including enforcement) and where to obtain additional information. (Id.
at ¶ 8 and Ex. 2). The Personnel Handbook of the City of Glencoe, adopted in 2009,
includes FMLA eligibility, notice, and certification provisions. (Id. at ¶ 9). Plaintiff
was provided with a copy of the Personnel Handbook. The Personnel Handbook
specifically states that “The Family Medical Leave Act (FMLA) of 1993 requires
cities with fifty (50) or more employees to offer up to twelve (12) weeks of unpaid,
job-protected leave to eligible employees for certain family and medical reasons.”
(Doc. 33-1 at 26). The Personnel Handbook also states that an employee must
provide the mayor with 30 days’ written notice of the need for foreseeable or
predictable need for FMLA leave, or if emergency circumstances prevent 30 days’
written notice, the employee must notify the mayor as soon as possible. (Id. at 28).
In addition, the Personnel Handbook states that medical certification, by a qualified
health care provider, of the need for FMLA leave for medical reasons must be
provided, within 15 calendar days of the employee’s departure, unless it is not
practicable to do so despite the employee’s good faith efforts. However, if notice is
provided more than 15 days after, the employee must provide a reasonable
explanation for the delay, along with the certification. (Id. at 29).
At all relevant times, Charles Gilchrist served as Mayor of the City of Glencoe,
Alabama. (Doc. 1 at ¶¶ 8-9; Doc. 6, Gilchrist Answer, at ¶¶ 4, 8; Doc. 7, Glencoe
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Answer, at ¶¶ 4, 8). Plaintiff was initially elected by the Glencoe City Council to
serve as city clerk for a four-year term in 2004. (Doc. 1 at ¶¶ 9, 25; Doc. 6 at ¶ 4;
Doc. 7 at ¶ 4; Doc. 28-1, Casey Depo., at 64). Plaintiff was elected to a second
four-year term as city clerk in 2008. (Doc. 28-1, Casey Depo., at 64). Plaintiff’s
second term as city clerk expired in November 2012. (Id.). Plaintiff retained her
position as city clerk with full pay and full benefits until the expiration of her second
term, when the Glencoe City Council voted to elect Tashia Blackerby as city clerk.
(Doc. 28-2, Blackerby Aff., at ¶ 3).
As city clerk, plaintiff worked at Glencoe City Hall. (Doc. 28-1, Casey Depo.,
at 36). During plaintiff’s tenure as city clerk, the City of Glencoe employed between
30 and 40 employees. (Id. at 35). However, at no time relevant to this action did the
City of Glencoe have as many as 50 employees working at Glencoe City Hall or
within 75 miles of Glencoe City Hall. (Doc. 28-2, Blackerby Aff., at ¶ 5).1
While serving as city clerk, plaintiff suffered “illness, family bereavement and
repeated hospitalizations.” (Doc. 1 at ¶ 23). She was first hospitalized in 2009.
(Doc. 28-1, Casey Depo. at 66-67). She was admitted to UAB Hospital in 2011. (Id.
at 70-71). She underwent three surgical procedures in July 2012 and was absent from

1

Ms. Blackerby attests to this evidence as city clerk for the City of Glencoe, as custodian of
records for the City of Glencoe, and based upon her review of payroll records for the City of
Glencoe. (Doc. 28-2, Blackerby Aff., at ¶¶ 2, 5).
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work. (Id. at 85-87). Plaintiff testified that she has migraine headaches, depression
and anxiety. (Id. at 108). Her father passed away on September 17, 2012. (Id. at
124). However, plaintiff never submitted either a written notice of the need to be
absent for FMLA purposes or medical certification of the need for FMLA leave. (Id.
at 65). Plaintiff has been aware of the FMLA since at least 2008. (Id. at 100-02).
However, plaintiff testified that she discussed the need to take some time off for
medical reasons with Gilchrist after she returned to work and at other times thereafter.
(Id. at 79, 82, 85, 88-91, 93, 97, 113, 118-20, 132).
Plaintiff received a performance evaluation dated February 16, 2009, in which
she received a score of 80 out of 100, indicating she met standards. It was
recommended that plaintiff work on her accuracy, co-worker relations and computer
skills, and she received a raise. (Doc. 33-2 at 5-6). A performance evaluation dated
February 11, 2011, shows that plaintiff exceeded standards, and she was given a raise.
However, Gilchrist stated he was concerned about plaintiff’s health but that he had
no complaints about her job performance. (Doc. 33-2 at 7-8). At plaintiff’s next
performance evaluation, dated February 8, 2012, Gilchrist gave her a score of 70 out
of 100, indicating she met standards, and gave her a raise. The evaluation decreased
her scores in quality and quantity of her work as compared to previous evaluations,
and Gilchrist noted plaintiff was “late alots” and “out a good bit” and he sometimes
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wondered if her mind was on doing a good job. He recommended that plaintiff arrive
for work on time, take less time away from the job, let Gilchrist know when she was
going to be off or leave early, and make her job a priority. (Doc. 33-2 at 9-10).
Plaintiff suffered a stroke on or about December 27, 2011. (Doc. 28-1, Casey
Depo., at 74). She was hospitalized two or three days as a result of the stroke. (Id.
at 76). She returned to work the same week. (Id. at 78). Plaintiff never specifically
requested that the hospitalization be treated as FMLA leave. (See Doc. 1 at ¶ 23;
Doc. 28-1, Casey Depo., at 95-96,100-02). When plaintiff returned to work in late
December 2011, she requested two weeks off (from late December 2011 into
mid-January 2012). (Doc. 28-1, Casey Depo., at 89). Specifically, she requested
vacation leave, not FMLA leave. (Id. at 90). She advised Mayor Gilchrist that she
wanted the vacation leave “to recover and try to gather myself.” (Id. at 91). Plaintiff
was advised by Mayor Gilchrist that the City of Glencoe could not handle plaintiff
taking extended leave at that time because the assistant city clerk was already taking
leave during that time frame. (Id.).
In mid-January 2012, plaintiff requested “to take a week off” for “health
related” reasons. (Id. at 93). Plaintiff was advised that she could not take extended
leave due to the assistant city clerk already being out on leave. (Id. at 93-94).
Plaintiff claims FMLA interference because she was neither granted vacation leave
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nor offered FMLA leave in December 2011 and January 2012. (Id. at 136-37). For
some time following her stroke, plaintiff describes herself as “an emotional wreck.”
(Id. at 80-81). After a doctor’s appointment at some time in January 2012, plaintiff
was able to resume her normal work duties. (Id. at 81, 83).
On or about January 24, 2012, plaintiff received a negative job performance
notice for failing to pay a city credit card bill in a timely fashion. (Doc. 1 at ¶ 15;
Doc. 29-1, Notice of Corrective Action). The bill was due by December 28, 2011, the
day after plaintiff had a stroke. (Doc. 29-1). Plaintiff contends that the tardy bill
payment was due to her hospitalization in December 2011. “[G]etting written up for
not doing something while you’re in the hospital” is the basis for plaintiff’s FMLA
retaliation claim. (Doc. 28-1, Casey Depo., at 140). She also contends she was not
reappointed to the city clerk position in retaliation for her attempts to take FMLA
leave. (Doc. 33, Plaintiff’s Brief, at 15-17).
After returning to work after her stroke, plaintiff missed single days of work
from time to time for doctor appointments or when feeling bad. (Doc. 28-1, Casey
Depo., at 71). Plaintiff would take a day off when she “was tired and needed time
off.” (Id. at 81-82). Her doctors did not recommend extended medical treatment of
any kind. (Id. at 71). There was no mention of inpatient care (after being discharged
from the hospital in December 2011 as stated above). (Id. at 72-73). Her doctors
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recommended that she go about her normal activities, including work, “at a slower
pace.” (Id. at 72). Plaintiff recalls no doctor providing her with a work excuse or
prescribing time off from work. (Id. at 73). The assistant city clerk returned from her
extended leave on January 23, 2012. (Doc. 28-2, Blackerby Aff., at ¶ 11).

After the assistant city clerk returned to work, plaintiff was never again denied
any requested leave. (Doc. 28-1, Casey Depo., at 95). Plaintiff’s salary was never cut
due to work absences of any kind. Plaintiff received her full salary and benefits
during her entire tenure as city clerk. All of her leave was paid leave. (Id. at 95; Doc.
28-2, Blackerby Aff., at ¶ 3).
Elections occurred on August 12, 2012, and Gilchrist was up for re-election as
mayor. Gilchrist’s opponent in the election was Chris Hare, who had a family
connection to plaintiff. Plaintiff’s family supported Hare in the election. Plaintiff
testified that Gilchrist “knew I had a family interest in [Hare] being elected as
mayor.” Gilchrist was re-elected as mayor. (Doc. 28-1, Casey Depo., at 149-51).
However, plaintiff denies she ever campaigned against Gilchrist or was asked about
the election. (Id. at 149-51). She testified that she was told by her brother, David
Gorham, and Tim Langdale that Gilchrist said she had been let go because she
campaigned against Gilchrist. (Id. at 149-53). Mr. Gorham has submitted an
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affidavit in which he attests that he was told by Gilchrist that Gilchrist let plaintiff go
because plaintiff and Gorham had campaigned against him, and Gilchrist did what he
considered right for the City of Glencoe. (Doc. 33-2 at 14-15, Gorham Aff.).
On or about October 1, 2012, plaintiff was called to a meeting with Mayor
Gilchrist and Councilman Danny Wagnon. (Doc. 28-1, Casey Depo., at 125-26). In
the meeting, Gilchrist told plaintiff that she “was too emotional,” that Gilchrist “was
recommending that I [plaintiff] take my things and take administrative leave until the
council would reappoint a city clerk or make all their appointments,” and that
Gilchrist “was not going to recommend that I [plaintiff] be reappointed because I
[plaintiff] was too emotional”2 and because of “the campaigning against me
[Gilchrist].” (Id. at 125). The term “fired” was never used; the term “terminated”
was never used; and plaintiff was advised that she could continue to do her job if she
could do so without being overcome by her emotions. (Id. at 127-28). Following the
conversation on October 1, 2012, plaintiff took her personal belongings, left city hall,
and never returned. (Id. at 142). From October 1, 2012, until the end of her term as
city clerk, plaintiff did not work, but received full pay and benefits. (Id. at 142-43).

2

Plaintiff’s father had recently passed away, and she was “struggling” with her duties as city
clerk. (Doc. 28-1, Casey Depo., at 128).
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On November 5, 2012, the Glencoe City Council voted to elect Tashia
Blackerby as city clerk. (Doc. 28-2, Blackerby Aff., at ¶ 3). According to the
affidavits of Johnny Chambers, Brent Lang, Wayne Farley, Danny Wagnon and Chris
Sims (members of the Glencoe City Council), they voted for Blackerby because they
thought she was the best person for the job, based on her educational background,
work experience and demeanor. (Doc. 28-3; Doc. 28-4; Doc. 28-5; Doc. 28-6; Doc.
28-7). All deny knowing if plaintiff requested or needed FMLA leave, and all deny
their vote for Blackerby was motivated by any request or need for such leave. (Id.).
Danny Wagnon specifically states that plaintiff’s work performance and office
demeanor had deteriorated throughout 2012, that other employees had complained
about plaintiff, and that he was aware plaintiff’s family had supported Gilchrist’s
opponent while Wagnon had supported Gilchrist. (Doc. 28-6, Wagnon Aff., at ¶ 4).
Plaintiff is now disabled and receiving Social Security Disability benefits.
(Doc. 28-1, Casey Depo., at 102). In her application for disability benefits, plaintiff
asserted that she can no longer do the work of a city clerk and became disabled
effective November 1, 2012, after she was not reappointed as city clerk. (Id. at 109).
Plaintiff admits that she has been disabled since November 1, 2012, admits she can
no longer do the job of city clerk, admits she has been unable to do the job since
November 1, 2012, and admits that she is unable to return to work. (Id. at 108-09).

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However, she was able to perform her city clerk job duties after her doctor’s
appointment in January 2012 until November 1, 2012, despite being tired and needing
some time off. (Id. at 81).
DISCUSSION
I.

FMLA Interference and Retaliation
The FMLA makes it illegal “for any employer to interfere with, restrain, or

deny the exercise of or the attempt to exercise, any right provided under this
subchapter.” 29 U.S.C. § 2615(a)(1). A plaintiff claiming interference must
demonstrate by a preponderance of the evidence that she was denied a benefit to
which she was entitled. Pereda v. Brookdale Senior Living Cmtys., Inc., 666 F.3d
1269, 1273-74 (11th Cir. 2012). An “employer” for purposes of the FMLA includes
any “public agency” such as the City of Glencoe. 29 U.S.C. § 2611(4)(iii).
The protections of the FMLA only apply if the plaintiff is an aggrieved
“eligible employee.” See Pereda, 666 F.3d at 1272; 29 U.S.C. § 2612(a)(1) (stating
that only an “eligible employee” shall be entitled to FMLA leave); 29 U.S.C. §
2617(a)(1) (providing that an employer who violates § 2615 shall be liable in a civil
action to any “eligible employee”). The FMLA defines the term “eligible employee”
to exclude “any employee of an employer who is employed at a worksite at which
such employer employs less than 50 employees if the total number of employees

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employed by that employer within 75 miles of that worksite is less than 50.” 29
U.S.C. § 2611(2)(B)(ii). Thus, in order for the FMLA to apply, the “employer(s) at
issue must have at least 50 employees within a 75 mile radius of the worksite.”
Morrison v. Magic Carpet Aviation, 383 F.3d 1253, 1254 (11th Cir. 2004). This
“worksite requirement” is both a threshold jurisdictional issue and a required element
of a plaintiff’s claim. See Morrison v. Amway Corp., 323 F.3d 920, 923 (11th Cir.
2003). Whether the worksite requirement is met is determined as of the date the
employee gives notice of the need for leave. 29 C.F.R. § 825.110(e).
Thus, in order to demonstrate that the FMLA is applicable, plaintiff has the
burden of showing that the City of Glencoe employed at least 50 employees at her
work site or within 75 miles. 29 U.S.C. §§ 2611(2)(B)(ii) and 2612; 29 C.F.R. §§
825.102, 825.104 and 825.108(d).

Plaintiff argues that “defendant offers no

substantive evidence that the City of Glencoe did not meet the statutorily
demonstrated requirement of a public agency that employs 50 or more employees for
each working day during each of 20 or more calendar workweeks in the current or
preceding calendar year.” (Doc. 33, Plaintiff’s Brief, at 10). However, the burden is
on plaintiff to establish that the City of Glencoe employed at least 50 employees at
her work site or within 75 miles thereof, not on the City of Glencoe to establish it did
not. Further, the deposition testimony of plaintiff and the affidavit testimony of

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Tashia Blackerby establish that the City of Glencoe employed between 30 and 40
employees and that it never employed 50 employees at plaintiff’s work site or within
75 miles of the site during the period relevant to this action. While plaintiff has
described Ms. Blackerby’s affidavit as “hearsay,” the rules of evidence provide
otherwise. See Fed.R.Evid. 602, 803(6); 902(4)(A). Therefore, plaintiff was not
eligible for FMLA leave.
The Eleventh Circuit has held that an employee must actually qualify for
FMLA leave in order to bring a claim of FMLA interference or retaliation. Hurley
v. Kent of Naples, Inc.,, 746 F.3d 1161, 1166-67 (11th Cir. 2014). Because plaintiff
has not brought forth evidence to create even a genuine issue of material fact as to
whether she was an “eligible employee” entitled to FMLA leave, she cannot establish
that defendant either interfered with her FMLA rights or retaliated against her for
attempting to exercise FMLA rights.
Mental and Emotional Distress
Plaintiff claims that defendant is liable for mental and emotional distress. This
cause of action was recognized by the Alabama Supreme Court in American Road
Serv. v. Inmon, 394 So.2d 361 (Ala. 1980), and described as follows:
one who by extreme and outrageous conduct intentionally or recklessly
causes severe emotional distress to another is subject to liability for such
emotional distress and for bodily harm resulting from the distress. The
emotional distress thereunder must be so severe that no reasonable
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person could be expected to endure it. Any recovery must be reasonable
and justified under the circumstances, liability ensuing only when the
conduct is extreme. Comment, Restatement, supra, at 78. By extreme
we refer to conduct so outrageous in character and so extreme in degree
as to go beyond all possible bounds of decency, and to be regarded as
atrocious and utterly intolerable in a civilized society.
Id. at 365. By definition, it is an intentional tort. However, a municipality such as
the City of Glencoe cannot be liable for the tort of intentional infliction of mental or
emotional distress. See Ala. Code § 11-47-190 (“No city or town shall be liable for
damages for injury done to or wrong suffered by any person or corporation, unless
said injury or wrong was done or suffered through the neglect, carelessness or
unskillfulness of some agent, officer or employee of the municipality engaged in
work therefor and while acting in the line of his duty. . . .”). Further, in the report and
recommendation on defendant Gilchrist’s Motion for Judgment on the Pleadings,
which was adopted and accepted by the district court, the undersigned found that
plaintiff failed to state a claim for intentional infliction of emotional distress. See
Doc. 25 at 6.
CONCLUSION
Based on the foregoing, the court finds that there are no genuine issues of
material fact and that defendant’s Motion for Summary Judgment is due to be granted
and this action dismissed with prejudice. A separate order in conformity with this
Memorandum Opinion will be entered contemporaneously herewith.
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DONE this 31st day of March, 2016.

HARWELL G. DAVIS, III
UNITED STATES MAGISTRATE JUDGE

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