Day v. Cole County Commission
Filing
26
ORDER granting 19 Defendant Cole County Commission's Motion for Summary Judgment, and summary judgment is entered in its favor on all counts. Signed on 03/22/13 by District Judge Beth Phillips. (Duer, Tina)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
LISA DAY,
Plaintiff,
v.
COLE COUNTY COMISSION,
Defendant.
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Case No. 12-4051-CV-C-BP
ORDER
This case comes before the Court on Defendant Cole County Commission’s Motion for
Summary Judgment. (Doc. 19.) Cole County moves for summary judgment on each of Plaintiff
Lisa Day’s claims. Day alleges Cole County terminated her employment in violation of federal
statutes and state tort law. Cole County argues Day’s claims lack evidence, are barred by
sovereign immunity, or have been pleaded against the wrong political entity. Cole County’s
motion will be granted.
I.
Facts.
These facts are undisputed and are properly received here. Fed. R. Civ. P. 56(c). Day
suffers from heart trouble. In 2004, a doctor diagnosed Day with several heart conditions. These
conditions flare up in hot environments, and they pose severe health risks.
In 2006, Day began working for the Cole County Prosecuting Attorney’s Office as a legal
assistant. Day assisted with legal enforcement of child support obligations by managing between
200 and 300 open cases. Day’s supervising attorney was Holly Finch, and she knew of Day’s
heart problems at the time Day began working for the Office. Finch gave Day high marks during
a January 2008 performance review.
Day’s heart problems grew worse during her employment, and occasionally she was
hospitalized or otherwise missed work. In particular, Day was hospitalized on approximately
June 20, 2010. When Day returned to work a few days later, Finch recommended that she apply
for leave under the Family and Medical Leave Act (FMLA), because she had used up almost all
of her paid vacation and sick leave. Shortly thereafter, Day obtained an FMLA leave application
form. (FMLA Form, Def.’s App’x at 1-4, Doc. 20-1.) This form requires that an employee’s
doctor provide certain information. On June 24, 2010, Day sent her doctor this form using the
office fax machine. 1
Prior to mid-2010, Finch had no major concerns with Day’s work performance.
However, in May or June of that year, Finch began hearing from her staff that Day was neither
managing her case files nor returning phone calls. These comments reinforced Finch’s own
concerns, which arose from her review of Day’s cases during court appearances. Thus, on July
5, Finch came into work on a holiday solely to conduct a comprehensive review of Day’s case
files. Finch’s review turned up numerous deficiencies in Day’s files. Finch prepared a six-page
summary of these deficiencies and the corrective action they required. This summary lists a total
of 71 deficiencies; some of these deficiencies were major, and some dated back up to six months.
(July Summary, Def.’s App’x at 6-12.)
On July 6, Finch presented this summary to Cole County Prosecutor Mark Richardson.
Richardson asked Finch to revise her summary, because he was unfamiliar with the abbreviations
1
At times, Day contends she “applied” for FMLA leave on June 24, thereby implying she
submitted her FMLA application to Cole County on this date. This characterization is
inconsistent with the undisputed evidentiary record. The record shows that a Cole County
employee applies for FMLA leave by first having his or her doctor complete the FMLA form,
and then submitting that completed form to Cole County for approval. Consistent with this
practice, the undisputed evidence shows Day faxed her FMLA form to her doctor on June 24.
Then, after Day received the completed from her doctor on July 8, she submitted it to Cole
County. As a result, Day could not have “applied” for FMLA leave on June 24.
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and jargon she used in it. On July 8, Finch had revised her summary and was prepared to return
it to Richardson, when Day approached her. Day had in hand a completed FMLA form, signed
and dated July 8 by Day’s doctor. Cole County approved Day’s FMLA leave application later in
the day. Finch testified it was on this date – July 8 – that she first became aware of Day’s FMLA
application.
Also on July 8, Finch presented the revised summary of deficiencies and an explanatory
letter to Day. (Letter dated July 8, 2010, Def.’s App’x at 5.) Day acknowledged receiving the
summary and letter, and she has admitted the deficiencies listed on the summary are valid.
Initially, Finch instructed Day that each deficiency must be corrected within 30 days. However,
Finch subsequently changed course, instead instructing Day to address the deficiencies as
quickly as she could given her health conditions.
Day took intermittent FMLA leave throughout the remaining months of 2010.
Eventually, Day’s doctor recommended that she have heart surgery on December 22, 2010. Day
underwent surgery on that date, causing her to be absent from work until January 14, 2011.
While Day was away, Finch noticed an error in one of Day’s files as she was preparing
for court. As a result, Finch suspected Day still was not managing her case files. Finch
instructed her staff to review all of Day’s files. This review turned up numerous deficiencies,
some of which dated back many months. (Dec. Summary, Def.’s App’x 15-20.) Based on these
findings, Finch gave Day poor marks in a January 13 performance review.
Finch also
recommended that Richardson terminate Day’s employment.
Day returned to work on January 14. Upon her return, Day found the January 13
negative performance review.
Day also received a letter from Richardson, stating he was
considering terminating her employment. (Letter dated Jan. 14, 2011, Def.’s App’x 21.) On
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January 18, Richardson held a “pre-termination hearing” with Day.
During this hearing,
Richardson asked Day why she was unable to complete her duties while she was at work.
Richardson did not ask about what occurred while Day was on leave. Day responded that
worrying about personal issues – including her marriage, her medical problems, and her mother’s
well-being – was interfering with her work performance. Day later supplemented her response
in writing, in which she made similar statements.
Ultimately, Richardson concluded Day was not completing her duties while she was
present at work. Richardson made this decision based on the pre-termination hearing, interviews
with Day’s co-workers, and Finch’s response to Day’s supplement. On February 4, Richardson
terminated Day’s employment.
Day filed this case against the Cole County Commission, alleging it unlawfully
terminated her employment.
Day’s Complaint contains four counts.
retaliation under the FMLA. 2
Count One alleges
Count Two alleges both discrimination and failure to
accommodate under the Americans with Disabilities Act (ADA).
Count Three alleges
intentional infliction of emotional distress. Count Four alleges negligent infliction of emotional
distress. Cole County moves for summary judgment on each of these claims.
II.
Standard for Summary Judgment.
A party is entitled to summary judgment when the evidentiary record shows there is no
genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
Fed R. Civ. P. 56(a); Heacker v. Safeco Ins. Co. of Am., 676 F.3d 724, 726-27 (8th Cir. 2012).
When a party moves for summary judgment, the court’s role is to determine whether the
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Cole County interpreted Count One as also asserting an FMLA interference claim. In her
briefing, Day makes clear she is not alleging this claim. (Pl.’s Opp. at 9, Doc. 23.) Thus, the
Court finds this claim is not at issue in this case.
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evidentiary record contains genuine issues of material fact. Connolly v. Clark, 457 F.3d 872, 876
(8th Cir. 2006). The court makes this determination by viewing the facts and drawing all
reasonable inferences in favor of the nonmoving party. Heacker, 676 F.3d at 726-27.
III.
Discussion.
Cole County’s summary judgment motion contains two parts. First, Cole County argues
each of Day’s claims fails on its merits. Second, Cole County argues Day’s claims also fail
because she has not sued the proper political entity. The Court takes up each argument below.
a.
FMLA retaliation
Count One alleges Cole County retaliated against Day for exercising her FMLA rights.
See 29 U.S.C. § 2615(a)(2); Phillips v. Mathews, 547 F.3d 905, 909 (8th Cir. 2008) (discussing
cause of action). To prevail on this claim, Day must show Cole County’s termination was
“motivated by retaliatory intent.” Wierman v. Casey’s Gen. Stores, 638 F.3d 984, 999 (8th Cir.
2011). Day has not presented any direct evidence Cole County terminated her in retaliation for
taking FMLA leave. Thus, the Court analyzes Day’s indirect evidence of retaliation under the
familiar McDonnell-Douglas three-step burden-shifting framework. Phillips, 547 F.3d at 913.
Cole County argues Day’s claim fails under this framework’s third inquiry. Cole County
contends there is no genuine issue its proffered reason for terminating Day – that she was not
completing her duties while at work – was mere pretext for FMLA retaliation. Wierman, 638
F.3d at 999. To rebut this argument, Day must present “enough admissible evidence to raise
genuine doubt as to the legitimacy of” Cole County’s proffered reason. Id. at 995.
Day makes two major arguments that there are genuine issues of pretext. In the first, Day
relies upon the timeline of events. However, Day’s timeline contains an unsupported conclusion.
Day contends Cole County should have known of her FMLA leave as of June 24, 2010, when
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she used the office’s fax machine to send her doctor the FMLA form. However, Day herself sent
this fax, and there is no evidence she informed any Cole County employee of it. Day does not
explain how merely sending this fax put Cole County on notice of her FMLA leave, and it is not
reasonable to infer that it did. Thus, the undisputed record shows that Finch first learned of
Day’s FMLA form on July 8, when Day presented her completed form. 3
After reviewing a proper timeline, the Court finds that Day’s argument fails. Initially,
Day’s focuses on Finch’s July 5 review of her case files.
Day contends this review was
retaliatory. But as established above, Finch did not learn of Day’s FMLA application until July
8. This sequence negates any inference of retaliation. Arraleh v. Cnty. of Ramsey, 461 F.3d 967,
978 (8th Cir. 2006) (no evidence of pretext where employee’s deficiencies were identified before
employee asserted rights); see Chivers v. Wal-Mart Stores, Inc., 641 F.3d 927, 933 (8th Cir.
2011) (no causation where employer’s adverse actions occurred before employee’s protected
activity). Day also argues that by changing the deadline for each case file deficiency to be
corrected, Finch gave Day no guidance about her duties. Thus, Day argues Finch set up the
grounds for her eventual termination. The record does not support this conclusion. Instead, the
record shows Finch revised this deadline in order to accommodate Day’s medical issues. Day
does not explain how this decision was retaliatory or is evidence of prextext.
Next, Day focuses on Finch’s second review of Day’s case files, her January 13 negative
performance, and her recommendation that Day be terminated. Day contends these actions were
retaliation for taking FMLA leave for her December 22 surgery. This argument is unavailing.
The record shows that Finch reviewed Day’s case files only after she found another error in
them. Thus, Finch’s legitimate reason for reviewing Day’s case files (finding an error) coincides
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Day does not argue that Finch’s mid-June suggestion that Day apply for FMLA leave was itself
sufficient to give notice that Day sought FMLA leave.
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with the allegedly pretextual motive (retaliating for taking FMLA leave).
This temporal
coincidence undermines any inference of pretext. Id. Moreover, the record shows Finch had
been concerned with Day’s work performance for many months. Finch’s pre-existing concerns
further undercut any inference of pretext. Id. 4
In her second argument, Day contends she was singled out among her co-workers. Day
notes that Finch reviewed only her case files on July 5. Thus, Day argues she was treated
differently than her fellow legal assistants. However, to be similarly situated employees must be
alike in all relevant respects, including by being accused of the same misconduct. Id. at 994.
Here, the record shows Day was different from her co-workers in one crucial respect: only Day
was accused of failing to manage her case files. Indeed, there is no evidence that any of the
office’s other legal assistants failed to complete their duties while at work. This distinguishes
Day from those employees, so that they are not similarly situated. Thus, Finch’s failure to also
review their case files does not create a genuine issue of pretext.
As set forth above, Day has not presented any evidence that creates a genuine issue of the
legitimacy of Cole County’s proffered reason for termination. Thus, there is no genuine issue
this reason was mere pretext. Cole County is entitled to summary judgment on Day’s FMLA
retaliation claim.
b.
ADA discrimination
Count Two alleges Cole County discriminated against Day for being disabled. Fenney v.
Dakota, Minn. & E. R.R. Co., 327 F.3d 707, 711 (8th Cir. 2003) (discussing cause of action).
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To the extent Day also argues that Finch’s actions were retaliation for Day submitting her July
8 FMLA leave application, this argument fails. Approximately five months passed between
Day’s application and Finch’s actions. This period is too long to create a genuine issue of
pretext. See Chivers, 641 F.3d at 933 (temporal proximity between two events must be “close”
to establish causation).
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Day has presented no direct evidence of disability discrimination, and so the Court analyzes this
claim under the McDonnell Douglas framework. Epps v. City of Pine Lawn, 353 F.3d 588, 591
(8th Cir. 2003). As with Day’s FMLA claim, the parties focus on whether Cole County’s
proffered reason for terminating her employment was pretextual.
Day contends there are
genuine issues on this point, by making the same arguments discussed above. The Court rejects
these arguments for the reasons previously given. Cole County is entitled to summary judgment
on Day’s ADA discrimination claim.
c.
ADA failure to accommodate
Count Two also alleges Cole County failed to accommodate Day’s disability. In her
briefing, Day concedes the record contains insufficient evidence of this claim and she voluntarily
dismisses it. (Pl.’s Opp. at 9.) Accordingly, Cole County is entitled to summary judgment on
Day’s ADA failure to accommodate claim.
d.
Infliction of emotional distress
Count Three alleges intentional infliction of emotional distress, and Count Four alleges
negligent infliction of emotional distress. Cole County argues these state law tort claims fail as a
matter of law, because it is entitled to sovereign immunity. Mo. Rev. Stat. § 537.600.1. In her
briefing, Day concedes Cole County is entitled to sovereign immunity and she voluntarily
dismisses these claims. Accordingly, Cole County is entitled to summary judgment on Day’s
state law tort claims.
e.
Failure to sue the proper political entity
Finally, Cole County argues each of Day’s claims fail for the additional reason that Day
has not sued the proper political entity. Day pleaded her claims against the Cole County
Commission. Cole County argues the Commission is not a juridical entity that can sue and be
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sued. Thus, Cole County argues it is entitled to summary judgment. However, the Court has
already found that Cole County is entitled to summary judgment on the merits of Day’s claims.
Therefore, the Court need not take up this issue. 5
IV.
Conclusion.
For the reasons set for above, Defendant Cole County Commission’s Motion for
Summary Judgment (Doc. 19) is GRANTED, and summary judgment is entered in its favor on
all counts.
IT IS SO ORDERED.
/s/ Beth Phillips
BETH PHILLIPS, JUDGE
UNITED STATES DISTRICT COURT
DATE: March 22, 2013
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Even if the Court were to take up this issue and resolve it against Day, it is unlikely the Court
would grant Cole County summary judgment, because that result would be unduly harsh.
Instead, the Court would consider allowing Day to amend her Complaint. Fed. R. Civ. P.
15(a)(2). This course is more appropriate for the facts of this case, as there is no evidence that
naming Cole County Commission as the defendant caused prejudice of any kind. See Fed. R.
Civ. P. 15(c).
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