636 F.3d 245 (6th Cir. 2011), 09-3899, Lee v. The City of Columbus, Ohio

Docket Nº:09-3899.
Citation:636 F.3d 245
Opinion Judge:GRIFFIN, Circuit Judge.
Party Name:Lisa LEE, Individually and as class Representatives on behalf of those similarly situated; Paula Lee, Individually and as class Representatives on behalf of those similarly situated; Teresa Ruby, Individually and as class Representatives on behalf of those similarly situated; Cheri Bowman, Individually and as class Representatives on behalf of thos
Attorney:Paula J. Lloyd, City Attorney's Office, Columbus, Ohio, for Appellant. John Spenceley Marshall, Marshall & Morrow, Columbus, Ohio, for Appellees. Paula J. Lloyd, Pamela J. Gordon, City Attorney's Office, Columbus, Ohio, for Appellant. Michael G. Moore, Law Offices of Michael Moore, Columbus, Ohio...
Judge Panel:Before: SUHRHEINRICH, McKEAGUE, and GRIFFIN, Circuit Judges.
Case Date:February 23, 2011
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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636 F.3d 245 (6th Cir. 2011)

Lisa LEE, Individually and as class Representatives on behalf of those similarly situated; Paula Lee, Individually and as class Representatives on behalf of those similarly situated; Teresa Ruby, Individually and as class Representatives on behalf of those similarly situated; Cheri Bowman, Individually and as class Representatives on behalf of those similarly situated; Carrie Best, Individually and as class Representatives on behalf of those similarly situated; Veronica Conley, Plaintiffs-Appellees,

v.

The CITY OF COLUMBUS, OHIO, Defendant-Appellant,

Mitchell Brown, City of Columbus, Director of Public Safety, et al., Defendants.

No. 09-3899.

United States Court of Appeals, Sixth Circuit.

February 23, 2011

Argued: April 28, 2010.

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ARGUED:

Paula J. Lloyd, City Attorney's Office, Columbus, Ohio, for Appellant.

John Spenceley Marshall, Marshall & Morrow, Columbus, Ohio, for Appellees.

ON BRIEF:

Paula J. Lloyd, Pamela J. Gordon, City Attorney's Office, Columbus,

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Ohio, for Appellant.

Michael G. Moore, Law Offices of Michael Moore, Columbus, Ohio, Vivian B. Fisher, Chorpenning, Good & Pandora Co., LPA, Columbus, Ohio, for Appellees.

Daniel B. Kohrman, AARP Foundation Litigation, Washington, D.C., for Amicus Curiae.

Before: SUHRHEINRICH, McKEAGUE, and GRIFFIN, Circuit Judges.

OPINION

GRIFFIN, Circuit Judge.

In this class action suit, defendant City of Columbus, Ohio (" the City" ), appeals the district court's order granting in part and denying in part plaintiffs' motion for partial summary judgment, denying defendant's summary judgment motion, and granting plaintiffs' request for permanent injunctive relief. The plaintiffs consist of two certified classes, all of whom are current or former employees of the City of Columbus, Division of Police. Plaintiffs initiated the present action in December 2007 alleging that, as employees, they were subject to certain impermissible city Division Directives that mandate the procedures governing their return to regular duty following sick leave, injury leave, or restricted duty.

At issue in the present appeal is Directive 3.07 § III(H)(1)(c) (" the Directive" ), which requires returning employees to submit a copy of their physician's note, stating the " nature of the illness" and whether the employee is capable of returning to regular duty, " to your immediate supervisor." Upset by the mandatory disclosure and funneling of confidential medical information through immediate supervisors, plaintiffs asserted class claims, alleging that the Directive violates the Rehabilitation Act, 29 U.S.C. § 791 et seq., and the privacy provisions of the First, Fifth, and Fourteenth Amendments of the United States Constitution through 42 U.S.C. § 1983.1 The district court granted summary judgment in favor of plaintiffs on both claims and entered a permanent injunction prohibiting the City from enforcing Directive 3.07 § III(H)(1)(c). For the reasons that follow, we vacate the injunction and reverse and remand for the entry of judgment in the City's favor.

I.

The facts of this case are accurately set forth in the district court's decision:

This case was brought by several employees of the City of Columbus, Division of Police. Plaintiffs allege that Columbus Police Division Directive (" Directive" ) 3.07 § III(H)(1)(c) violates the Rehabilitation Act of 1973, 29 U.S.C. § 790 et seq. (" Rehabilitation Act" ) and the privacy provisions of the First, Fifth and Fourteen Amendments to the Constitution of the United States through 42 U.S.C. § 1983 (" Section 1983" ). Plaintiffs request a permanent injunction prohibiting enforcement of Directive 3.07 § III(1)(c) and Plaintiffs request damages for alleged harm caused to them by the enforcement of that Directive [ ].

Directive 3.07 § III(H) relates to the procedures for when an employee seeks to take sick leave prior to the start of his

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or her shift and provides in relevant part:

H. Returning to Regular Duty Following Sick Leave, Injury Leave, or Restricted Duty

1. All Personnel

a. Notify the Information Desk to mark up prior to returning to regular duty.

b. If any of the following conditions apply, forward a note from the attending physician to [the Employee Benefits Unit] upon returning to regular duty:

(1) More than three days of sick leave were used.

The physician's note must state the nature of the illness and that you are capable of returning to regular duty.

(2) Previously notified by a commander to do so.

The physician's note must state the nature of the illness and that you are capable of returning to regular duty.

(3) More than two days of sick leave were used due to illness in the immediate family.

The physician's note must state the nature of the family member's illness and that you were required to care for the family member.

Note: Consult the applicable work agreement for the definition of immediate family.

(4) You were assigned to restricted duty.

The physician's note must state that you are capable of returning to regular duty.

c. Submit a copy of the physician's note to your immediate supervisor.

Under these provisions, an employee who is returning to regular duty must under specified circumstances provide a note from his or her attending physician to his or her immediate supervisor. The physician's note must state the nature of the illness and that the employee is capable of returning to regular duty if the employee was off for more than three days of sick leave or was previously notified by a commander to do so. Directive 3.07 § III(H)(1)(b)(1), (2). If more than two days of sick leave were used due to illness in the immediate family, then the physician's note must state the nature of the family member's illness and that the employee was required to care for the family member. Directive 3.07 § III(h)(1)(b)(3). In all instances, the Directive requires the employee to submit a copy of the physician's note to his or her immediate supervisor. Directive 3.07 § III(H)(1)(c).

Two of the individually named Plaintiffs, Carrie Best and Cheri Bowman, moved this Court for preliminary injunctive relief against enforcement of Directive 3.07(H)(1)(c) against them. That motion was fully briefed and on June 24, 2008, this Court granted these two Plaintiffs' motion and issued a preliminary injunction, holding that Best and Bowman were substantially likely to succeed on the merits of their Rehabilitation Act claim and their constitutional challenges to Directive 3.07(h)(1)(c).

On May 21, 2008, Plaintiffs filed a motion to certify two plaintiff classes. That motion was fully briefed and on August 22, 2008, this Court granted class certification. Defendants subsequently filed a motion to modify the definition of one of the classes, which this Court granted. The classes are defined as follows:

CLASS I

All employees of the City of Columbus, Division of Police, subject to the enforcement of Division Directive 3.07, who, since December 4, 2005 through present,

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pursuant to the Directive, have been required to disclose confidential medical information to supervisory personnel.

CLASS II

All current employees of the City of Columbus, Division of Police, subject to the enforcement of Division Directive 3.07.

On September 9, 2008, Plaintiffs filed a motion requesting that the preliminary injunction prohibiting enforcement of Directive 3.07 § III(H)(1)(c) against [two individual plaintiffs] be extended to the Plaintiff Classes. This Court granted that motion on October 8, 2008.

(Citations to record and footnote omitted.)

The parties thereafter filed cross-motions for summary judgment on plaintiffs' class claims for injunctive relief under the Rehabilitation Act and § 1983. In addition, the City moved for summary judgment on plaintiffs' claim for compensatory damages. On July 15, 2009, the district court issued an opinion and order granting partial summary judgment in favor of plaintiffs on the Rehabilitation Act and § 1983 claims, denying the City's cross-motion, and permanently enjoining the City from enforcing Directive 3.07 § III(H)(1)(c). 2 See Lee v. City of Columbus, Ohio, 644 F.Supp.2d 1000 (S.D.Ohio 2009). The City now appeals.3

II.

" A party is entitled to a permanent injunction if it can establish that it suffered a constitutional violation and will suffer continuing irreparable injury for which there is no adequate remedy at law." Wedgewood Ltd. P'ship I v. Twp. of Liberty, Ohio, 610 F.3d 340, 349 (6th Cir.2010) (internal quotation marks and citation omitted). " In determining whether a district court has properly granted a permanent injunction, we review factual findings for clear error, legal conclusions de novo, and the scope of injunctive relief for abuse of discretion." Gibson Guitar Corp. v. Paul Reed Smith Guitars, LP, 423 F.3d 539, 546 (6th Cir.2005).

" Summary judgment is proper when, viewing the facts and drawing all inferences in the light most favorable to the nonmoving party, there is no genuine issue of material fact for trial and the moving party is entitled to judgment as a matter of law." Harris v. Metro. Gov't of Nashville & Davidson Cnty., Tenn., 594 F.3d 476, 482 (6th Cir.2010) (citing Federal Rule of Civil Procedure 56(c)). " The standard of review for cross-motions for summary judgment does not differ from the standard applied when a motion is filed by only one party to the litigation." Ferro Corp. v. Cookson Group, PLC, 585 F.3d 946, 949 (6th Cir.2009).

III.

The Rehabilitation Act provides that " [n]o otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, ... be...

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