Miller v. Detroit Public Schools

Filing 79

ORDER GRANTING EMERGENCY MOTION TO STAY TRIAL COURT PROCEEDINGS 77 . Signed by District Judge Gershwin A. Drain. (DPar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
M. HEATHER MILLER,
Plaintiff,
Case No. 14-cv-12819
Honorable Gershwin A. Drain
v.

DETROIT PUBLIC SCHOOLS, et al.,
Defendants.
____________________________/

ORDER GRANTING EMERGENCY MOTION TO STAY TRIAL COURT
PROCEEDINGS [#77]
On May 27, 2016, this Court entered an Order granting the Plaintiff’s Motion
for Summary Judgment as to Liability on Count II and denied Defendants’ Motion for
Summary Judgment. Specifically, the Court concluded that Defendants were not
entitled to qualified immunity on Plaintiff’s First Amendment retaliation claim, nor
were they entitled to qualified immunity on Plaintiff’s claim under the Family Medical
Leave Act (“FMLA”). Trial is set to commence on June 21, 2016.
Presently before the Court is Defendants’ Emergency Motion to Stay Trial
Court Proceedings, filed on June 6, 2016. Plaintiff filed a Response to Defendants’
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motion on the same date. In their present motion, Defendants raise various reasons
in support of their request for a stay of these proceedings.

The only reason that

requires discussion is Defendants assertion that they will seek an immediate appeal
of this Court’s conclusion on their defense of qualified immunity.1
The United States Supreme Court has recognized that an immediate
interlocutory appeal is available based on the denial of a motion for summary
judgment on qualified immunity grounds. Mitchell v. Forsyth, 472 U.S. 511, 530
(1985).

However, where the denial of qualified immunity is based on a factual

dispute, the Sixth Circuit is without jurisdiction to consider the appeal. Skousen v.
Brighton High Sch., 305 F.3d 520, 525 (6th Cir. 1997). As such, there is authority
suggesting that a defendant’s right to appeal is not absolute and a district court may
certify the appeal as frivolous and proceed to trial. See Yates v. City of Cleveland, 941
F.2d 444, 448 (6th Cir. 1991). The Court has found two cases from the Eastern
District of Michigan wherein the court denied the defendant’s motion for stay pending
appeal of the denial of qualified immunity. See Jennings v. Fuller, No. 13-13308,
2015 U.S. Dist. LEXIS 118096,*8-9 (E.D. Mich. Sept. 4, 2015) (denying motion to

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Defendants also argue that they have filed an appeal of the MERC decision to the
Michigan Court of Appeals and the outcome of that appeal may impact the proofs in this case.
Defendants’ counsel further maintains that he will be in trial commencing on June 13, 2016, and
this will prevent him from adequately preparing for the instant matter. The Court notes that trial
in this matter has been set since November 24, 2015. Counsel should have raised his trial
schedule with the Court at an earlier time than the day before the Final Pretrial Conference.
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stay because the court’s decision did not turn on a question of law); see also Englar
v. Davis, No. 04-cv-73977, 2011 U.S. Dist. LEXIS 77033, *13-14 (E.D. Mich. Jul. 15,
2011) (denying motion to stay based on unresolved factual disputes that were not
cured upon remand).
Here, while the Court’s May 27, 2016 Order denied qualified immunity to
Defendants on Plaintiff’s FMLA claim based on the factual disputes in the record, it
denied qualified immunity as to Plaintiff’s retaliation claim on purely legal grounds.
As such, the Sixth Circuit Court of Appeals will more than likely dismiss the appeal
of the denial of qualified immunity on Plaintiff’s FMLA claim for lack of jurisdiction
since the denial was based on the existence of a genuine issue of material fact.
Skousen, 305 F.3d at 525; Jennings, 2015 U.S. Dist. LEXIS 118096, at *8-9; Englar,
2011 U.S. Dist. LEXIS 77033, at *13-14.
However, it will be a waste of judicial resources to separately try Plaintiff’s
FMLA claim from the First Amendment retaliation claim because many issues with
respect to damages will be identical for both claims. Moreover, the Court believes the
more prudent course is to allow the Sixth Circuit Court of Appeals to address whether
the denial of qualified immunity was an appealable final decision under 28 U.S.C. §
1291, rather than this Court certifying it as frivolous and proceeding to trial. See
Dickerson v. McClellan, 37 F.3d 251, 252 (6th Cir. 1994) (holding that “[t]his court

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must determine its own jurisdiction and is bound to do so in every instance.”) Lastly,
the Court notes that the Sixth Circuit “has neither explicitly endorsed nor rejected” the
procedure of certifying interlocutory appeals of the denial of qualified immunity as
frivolous and proceeding to trial. Robinson v. Barrow, No. 1-11-cv-01609, 2012 U.S.
Dist. LEXIS 38896, *3-4 n.2 (N.D. Ohio Mar. 22, 2012)
The Court has not reached this conclusion without considering the impact a stay
will have on Plaintiff and her right to have the merits of her claims adjudicated in a
timely manner. However, the Defendants were not dilatory in raising their qualified
immunity defense and the Court is not prepared to conclude that an appeal would be
wholly frivolous or undertaken for the sole purpose of delay. “The philosophical
underpinning of the doctrine of qualified immunity is a desire to avoid ‘the substantial
costs’ imposed on government, and society, by ‘subjecting officials to the risk of
trial.’” Vaughn v. United States Small Business Admin., 65 F.3d 1322, 1326 (6th Cir.
1995).
Accordingly, Defendants’ Emergency Motion to Stay Trial Court Proceedings
[#77] is GRANTED. This matter is STAYED until further order of this Court. In
order to expedite the appeal of this matter, Defendants shall file their Notice of Appeal
within seven days from the date of this Order. The Court will promptly set aside the
stay and proceed to trial should the Defendants fail to file a Notice of Appeal within

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seven days. The Clerk of the Court shall close this case for administrative purposes
only.
SO ORDERED.
Dated: June 8, 2016
/s/ Gershwin A. Drain
GERSHWIN A. DRAIN
UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of
record on
June 8, 2016, by electronic and/or ordinary mail.
/s/ Tanya Bankston
Deputy Clerk

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