McGee v. Armstrong, et al
Filing
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Memorandum Opinion and Order: To the extent plaintiff's motion for TRO and preliminary injunction seeks a TRO, it is denied. (Doc. No. 7 ). The Court refers this action to Magistrate Judge Kathleen B. Burke to conduct the Case Management Conference in this case. Due to the fact that plaintiff will be actively deployed on January 9, 2012, the Court requests that, if at all possible, the CMC be conducted by no later than January 6, 2012, even if defendants have not yet filed a respons ive pleading by then. In addition, defendants are requested to file forthwith, at the very least, a notice of appearance so that the Court will be able to make contact with defendants' counsel electronically. The Court hereby refers this action to Magistrate Judge Burke for general pretrial supervision. This referral includes the preparation of reports and recommendations on dispositive motions. Judge Sara Lioi on 12/23/2011. (P,J)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
KEVIN V. MCGEE,
PLAINTIFF,
vs.
THOMAS L. ARMSTRONG, et al.,
DEFENDANTS.
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CASE NO. 5:11CV2751
JUDGE SARA LIOI
MEMORANDUM OPINION
AND ORDER
(Including Order of Reference)
Before the Court is plaintiff’s motion for temporary restraining order and
preliminary injunction. (Doc. No. 7.) The Court conducted an initial telephone conference with
counsel1 on December 21, 2011 for purposes of discussing the motion for TRO. Following that
conference, the Court indicated that it would take the motion for TRO under advisement
forthwith. For the reasons discussed herein, to the extent the motion seeks a TRO, it is DENIED.
I. BACKGROUND
On December 20, 2011, plaintiff filed a complaint against defendant Summit
County Developmental Disabilities Board (“the Board”) and two of its “manager[s] in the chain
of command,” Thomas Armstrong and Lisa Kamlowsky. The complaint sets forth federal causes
of action for discrimination and retaliation under Title VII, the Civil Rights Act (42 U.S.C. §
1983), and the Uniformed Services Employment and Reemployment Rights Act (“USERRA”)
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Attorney Michael McGee participated on behalf of plaintiff and Attorney Dave Kessler, who has not yet filed a
notice of appearance, participated on behalf of defendants. The proceedings were not recorded.
(38 U.S.C. § 4301, et seq.), as well as a state law civil rights claim, a breach of contract claim,
and a claim of violation of public policy.
Plaintiff is employed by the Board as Director of Marketing, Public Relations and
Specialty Businesses pursuant to the terms of an Employment Agreement (“the Agreement”).
(Compl. ¶¶ 20, 28.) He alleges that, because of his status as an active member of the Ohio Army
National Guard, which sometimes requires his absence pursuant to military orders of
deployment, he has been selectively disciplined, demoted, retaliated against, and treated
differently than his non-military peers. (Id. ¶ 22.)
Plaintiff further alleges that the Agreement includes provisions under which he is to
be paid during all required military duty. He alleges that he is entitled to “[f]ull pay for the first
31 days of military leave (through Feb. 2, 2012 in this case when 31 days of leave would be
exhausted); and Military Pay Differential of $215.90 per day, (in this case beginning on Feb. 3
and for each working day while absent on orders, through March 20, 2012).” (Compl. ¶ 28.)
Plaintiff has been summoned to military duty and will be required to muster out of state with the
Army on January 9, 2012. (Id. ¶ 29.) On November 11, 2011, he requested the contractual
allowances for military leave from his supervisor, defendant Armstrong. (Id.) On December 8,
2011, he was provided a response from the Board’s legal counsel and Assistant Superintendent,
defendant Kamlowsky, which indicated that the Board would not comply with the Employment
Agreement as it had in past years and would not pay plaintiff his differential pay during his
military duty. (Id.)
Along with his complaint, plaintiff filed the instant motion for TRO and
preliminary injunction aimed specifically at enjoining defendants from failing to pay him
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appropriately under the terms of the Agreement during his active duty deployment. He does not
seek immediate injunctive relief with respect to any other aspect of his complaint.
II. DISCUSSION
A.
Legal Standard
In considering whether to grant injunctive relief under Fed. R. Civ. P. 65, the
Court must consider the following four factors: (1) the movant’s likelihood of success on the
merits; (2) whether the movant will suffer irreparable harm without the injunction; (3) whether
granting the injunction will cause substantial harm to others; and (4) the impact of the injunction
on the public interest. Connection Distributing Company v. Reno, 154 F.3d 281, 288 (6th Cir.
1998).
“[T]he purpose of a TRO under Rule 65 is to preserve the status quo so that a
reasoned resolution of a dispute may be had.” Procter & Gamble Co. v. Bankers Trust Co., 78
F.3d 219, 226 (6th Cir. 1996). “The standard for issuing a temporary restraining order is
logically the same as for a preliminary injunction with emphasis, however, on irreparable harm
given that the purpose of a temporary restraining order is to maintain the status quo. Reid v.
Hood, No. 1:10CV2842, 2011 WL 251437, at *2 (N.D. Ohio Jan. 26, 2011) (citing Motor
Vehicle Bd. of Cal. v. Fox, 434 U.S. 1345, 1347 n. 2 (1977)). “If the balance of equities so
heavily favors the moving party that justice requires the court to intervene to secure the positions
until the merits of the action are ultimately determined, then there is cause to preserve the status
quo.” Id. (citing University of Texas v. Camenisch, 451 U.S. 390, 395 (1981)).
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B.
Analysis
1.
Likelihood of Success on the Merits
Plaintiff relies on the terms of the Agreement with the Board, as well as alleged
past practice, for his assertion that he is likely to succeed on the merits. He argues that the
Agreement provides for 31 days of full pay for the first 31 days of military leave, plus
“differential pay” for all additional days of military leave. He asserts that, in the past, the Board
has complied with these requirements. However, when he told the Board of his upcoming
deployment, he was advised by Memo dated December 19, 2011 (see Doc. No. 7-2), that he
would be paid for only 22 days of military leave and that his differential pay would be calculated
and paid “as soon as practicable” after receipt by the Human Resources Department of his
earnings statement for each time he is paid by the military. Plaintiff asserts that the Agreement
requires that he be paid every two weeks and, since he is able to tell the Board now what his
military pay will be, he should not be required to first supply copies of his military earnings
statements in order to receive his differential pay.
According to plaintiff, the Agreement under which he is employed is attached to
the complaint. See Doc. No. 1-1. It contains the following provisions which are relevant to
whether plaintiff is likely to succeed on the merits:
IV.
Compensation
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B.
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5.
Other Compensation - Fringe Benefits (A)
Military Leave -- The Employee shall be entitled to thirty-one (31)
days of military leave. In the event the Employee is called or
ordered to the uniformed services for longer than one month,
Employee is entitled, during the period designated in the order, to a
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leave of absence and to be paid, during each monthly pay period of
that leave of absence, the difference between the Employee’s gross
monthly salary and the sum of the Employee’s gross uniformed
pay and allowances received that month.
XI.
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General Provisions
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B.
Application of the Ohio Revised Code: Notwithstanding the
foregoing provisions of this contract, the parties agree to be bound
by the Ohio Revised Code, as hereinafter amended, including but
not limited to the provisions of Chapter 5126. A copy of the
relevant code sections is available at the Board administrative
office for the convenience of the Employee.
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E.
Savings Clause: If any portion of this contract is deemed to be
illegal due to conflict with state or federal law, the remainder of
the contract shall remain in full force and effect.
The reference in the Agreement to Ohio Rev. Code Chapter 5126 is to the section
of Ohio’s statutory law governing the services provided by County Boards of Development
Disabilities. Although not specifically mentioned in the Agreement, a section of the Ohio
Revised Code dealing with “Organized Militia” also applies. It provides in relevant part as
follows:
(A)
(1) Permanent public employees who are members of the Ohio organized
militia or members of other reserve components of the armed forces of the
United States, including the Ohio national guard, are entitled to a leave of
absence from their respective positions without loss of pay for the time
they are performing service in the uniformed services, for periods of up to
one month, for each calendar year in which they are performing service in
the uniformed services.
(2) As used in this section:
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(b) “Month” means twenty-two eight-hour work days or one hundred
seventy-six hours, or for a public safety employee, seventeen twenty-fourhour days or four hundred eight hours, within one calendar year.
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(B)
Except as otherwise provided in division (D) of this section, any
permanent public employee who is employed by a political subdivision,
who is entitled to the leave provided under division (A) of this section, and
who is called or ordered to the uniformed services for longer than a month,
for each calendar year in which the employee performed service in the
uniformed services, because of an executive order issued by the president
of the United States, because of an act of congress, or because of an order
to perform duty issued by the governor pursuant to section 5919.29 of the
Revised Code is entitled, during the period designated in the order or act,
to a leave of absence and to be paid, during each monthly pay period of
that leave of absence, the lesser of the following:
(1) The difference between the permanent public employee’s gross
monthly wage or salary as a permanent public employee and the sum of
the permanent public employee’s gross uniformed pay and allowances
received that month;
(2) Five hundred dollars.
Ohio Rev. Code § 5923.05. There is no dispute that plaintiff is a “permanent public employee”
and that he has been called to active duty in “the Ohio national guard” for a period “longer than a
month.” During the telephone conference conducted on December 21, 2011, defendants’ counsel
represented to the Court, without opposition from plaintiff’s counsel, that the Board is a
“political subdivision” within the meaning of the statute.
The dispute as it relates to the TRO involves interpretation of the Agreement in
light of § 5923.05. Plaintiff argues that the Agreement entitles him to 31 days of military leave,
which he interprets as 31 work days, at full pay before the so-called “differential pay” kicks in.
The statute, on the other hand, is clear that a “month” is 22 eight-hour work days. The Memo
dated December 19, 2011, sent by the Board to plaintiff, explains that “the correct interpretation
of the military leave provision contained in [the] employment contract and agency policy[]” is
that plaintiff will receive full pay for a period of 22 work days. This 22-day period covers
“January 9, 2012 through and including February 8, 2012[]”(which is 31 calendar days), but
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excludes the federal holiday on January 16, 2012, “which is not counted as a day of paid
leave[.]” (Doc. No. 7-2.) The Board’s position is not inconsistent with either the Agreement or
the statute.
The Board is constrained by the terms of the statute to pay plaintiff only the
amount of full pay he is entitled to.2 Plaintiff, however, points to § 5923.05(G) as proof that the
22 days is merely the minimum, not the maximum, the Board can pay. Subsection (G) provides:
“Any permanent public employee of a political subdivision whose employment is governed by a
collective bargaining agreement with provision for the performance of service in the uniformed
services shall abide by the terms of that collective bargaining agreement with respect to the
performance of that service, except that no collective bargaining agreement may afford fewer
rights and benefits than are conferred under this section.” The problem with plaintiff’s reliance
on this subsection is that his employment contract is not a collective bargaining agreement. In
addition, his contract provides that “[i]f any portion of this contract is deemed to be illegal due to
conflict with state or federal law, the remainder of the contract shall remain in full force and
effect.” (Doc. No. 1-1, § XI, E.) Therefore, if the Agreement is construed as providing 31 days of
paid military leave, that section cannot stand in light of the statutory provision that paid leave is
only for 22 days.3
The Court concludes that plaintiff has not shown a likelihood of success on the
merits with respect to this issue.
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The Court also notes that during this period of full pay from the Board, plaintiff will also be receiving his full
military pay. Therefore, he will actually be earning more than he is accustomed to for this first 31-day period.
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During the telephone conference on December 21, 2012, plaintiff’s counsel conceded that, if the statute is
interpreted as the maximum that can be paid, plaintiff’s position cannot stand. Plaintiff’s counsel was unable to
supply the Court with any case law that supports his position that 22 days of fully paid military leave is the
minimum, not the maximum.
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2.
Whether Plaintiff Will Suffer Irreparable Harm
Even if plaintiff were able to show likelihood of success on the merits, for a TRO
to issue (in order to maintain the status quo), he must also show that he will suffer irreparable
harm absent immediate injunctive relief. “When courts consider irreparable harm, ‘[t]he key
word ... is irreparable,’ and ‘[t]he possibility that adequate compensatory or other corrective
relief will be available at a later date ... weighs heavily against [the] claim.’” Brake Parts, Inc. v.
Lewis, No. 10-6531, 2011 WL 3510225, at *5 (6th Cir. Aug. 11, 2011) (omissions in original)
(quoting Sampson v. Murray, 415 U.S. 61, 90 (1974)). Here, if plaintiff prevails as to his
interpretation of the Agreement with respect to military leave and past practices of the Board
with respect to the documentation required for differential pay, compensatory damages will
make him whole.
During the telephone conference, plaintiff’s counsel asserted that plaintiff needs
his anticipated full pay to meet his obligations, in particular, child support and mortgage
payments. He argued that, if plaintiff receives the lesser pay that defendants plan to give while he
is away on active duty, he might become embroiled in a domestic relations lawsuit or a
foreclosure proceeding. However, irreparable harm is harm that is “actual and imminent” as
opposed to “speculative or unsubstantiated.” Abney v. Amgen, Inc., 443 F.3d 540, 552 (6th
Cir.2006). That the harm is particularly speculative in this case is borne out by the fact that any
of the possible actions that plaintiff fears might be filed against him should be forestalled by
application of the Servicemembers Civil Relief Act, 50 U.S.C. app. § 501, et seq.
The Court concludes that plaintiff has not established irreparable harm which, as
already noted, is a key factor in the analysis when deciding whether to issue a TRO.
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3.
Whether an Injunction Will Cause Others Substantial Harm
The Court need not examine this factor very closely. It seems rather evident that,
should injunctive relief be granted and plaintiff’s position is ultimately proven wrong, any
overpayment of salary under the Contract and/or the statute could be recouped by the defendants
through payroll adjustments.
4.
The Impact of an Injunction on the Public Interest
The public interest in affording appropriate compensation and benefits for public
employees who are engaged in active military service favors plaintiff. However, the equally
strong public interest in requiring political subdivisions to uphold statutory provisions favors
defendants. Therefore, this element is balanced in favor of both parties.
III. CONCLUSION
For the reasons set forth herein, the Court concludes that plaintiff is unable to
make the showing necessary for the issuance of a temporary restraining order. Accordingly, to
the extent Doc. No. 7 seeks that relief, it is DENIED.
IV. ORDER OF REFERENCE
The Court refers this action to Magistrate Judge Kathleen B. Burke to conduct the
Case Management Conference in this case. Due to the fact that plaintiff will be actively deployed
on January 9, 2012, the Court requests that, if at all possible, the CMC be conducted by no later
than January 6, 2012, even if defendants have not yet filed a responsive pleading by then. In
addition, defendants are requested to file forthwith, at the very least, a notice of appearance so
that the Court will be able to make contact with defendants’ counsel electronically.
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Additionally, the Court hereby refers this action to Magistrate Judge Burke for
general pretrial supervision. This referral includes the preparation of reports and
recommendations on dispositive motions. Hereafter all filings in this action shall bear the names
of both Judge Sara Lioi and Magistrate Judge Kathleen B. Burke.
The Court reserves the right to rule directly on any matter in this case.
The parties may still exercise their right to consent to the exercise of full
jurisdiction by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1) and Local Rule 73.1, and
this order does not alter the parties’ responsibility to file their election with the Court with
reference to such consent, if they have not already done so.
This action shall be returned to this Court when ready for trial unless all parties
consent to trial before Magistrate Judge Burke.
IT IS SO ORDERED.
Dated: December 23, 2011
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE
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