Lee v. City of Columbus, Ohio

• Decision Date: 15 July 2009
• Docket Number: Case No. 2:07-cv-1230.
• Citation: 644 F.Supp.2d 1000
• Parties: Lisa LEE, et al., Plaintiffs, v. The CITY OF COLUMBUS, OHIO, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

644 F.Supp.2d 1000

Lisa LEE, et al., Plaintiffs, v. The CITY OF COLUMBUS, OHIO, et al., Defendants.

Case No. 2:07-cv-1230.

United States District Court, S.D. Ohio, Eastern Division.

July 15, 2009.

Opinion Denying Stay September 4, 2009.

Michael Garth Moore, Michael W. Dewitt, Chorpenning Good & Pandora Co. LPA, Columbus, OH, for Plaintiffs.

Pamela J. Gordon, Paula Jennings Lloyd, Columbus City Attorney's Office, Columbus, OH, for Defendants.

OPINION AND ORDER

GREGORY L. FROST, District Judge.

This matter is before the Court on Plaintiff Classes' motion for partial summary judgment ("Plaintiff Classes' Motion") (Doc. # 103), Defendant the City of Columbus' ("the city" or "Defendant") memorandum in opposition to Plaintiff Classes' Motion (Doc. #127), and Plaintiff Classes' reply memorandum (Doc. # 150); Defendant's motion for summary judgment ("Defendant's Motion") (Doc. # 142), Plaintiffs' memorandum in opposition to Defendant's Motion (Doc. #156), and Defendant's reply memorandum (Doc. # 172); and, Defendant's Motion to Strike Declarations (Doc. # 127). For the reasons that follow, the Court DENIES both Defendant's Motion and Defendant's Motion to Strike Declarations, and DENIES IN PART and GRANTS IN PART Plaintiff Classes' Motion.

I. Background

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 Fourteenth Amendments to the Constitution of the United States through 42 U.S.C. § 1983 ("Section 1983").¹ (See Doc. # 109, Third Amended Complaint). Plaintiffs request a permanent injunction prohibiting enforcement of Directive 3.07 § III(H)(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 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.

(Doc. # 103-2 at 8) (emphasis in original).

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 § III(H)(1)(c) against them. (Doc. #7.) That motion was fully briefed and on June 24, 2008, 2008 WL 2557255, 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 § III(H)(1)(c). (Doc. # 32.)

On May 21, 2008, Plaintiffs filed a motion to certify two plaintiff classes. (Doc. # 26.) That motion was fully briefed and on August 22, 2008, 2008 WL 3981459 this Court granted class certification. (Doc. #39.) Defendants subsequently filed a motion to modify the definition of one of the classes, which this Court granted. (Docs. # 59, 66.) 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, 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.

(Doc. # 66 at 1, 6.)

On September 9, 2008, Plaintiffs filed a motion requesting that the preliminary injunction prohibiting enforcement of Directive 3.07 § III(H)(1)(c) against Best and Bowman be extended to the Plaintiff Classes. (Doc. # 40.) This Court granted that motion on October 8, 2008. (Doc. #48.)

Defendant and Plaintiff Classes now present the issue of the legality of Directive 3.07 § III(H) to the Court for determination on the merits.

II. Standard

Fed.R.Civ.P. 56 provides in pertinent part:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Fed.R.Civ.P. 56(c). In determining whether there is a genuine issue as to any material fact, the evidence "must be viewed in the light most favorable" to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Summary judgment will not lie if the dispute about a material fact is genuine, "that is, if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, summary judgment is appropriate if the opposing party "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, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The "mere existence of a scintilla of evidence in support of the [opposing party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [opposing party]." Anderson, 477 U.S. at 252, 106 S.Ct. 2505. The Court, however, may not make credibility determinations or weigh the evidence. Anderson, 477 U.S. at 255, 106 S.Ct. 2505.

III. Analysis²

Plaintiff Classes and Defendant both request summary judgment on the class claims for injunctive relief and Defendant also requests summary judgment on the Class I claims for compensatory damages.

The Court initially notes that throughout Defendant's briefing of its motion and its supporting memoranda, as well as in its memorandum opposing Plaintiff Classes' Motion, Defendant brings issues before the Court upon which this Court has already definitively ruled. However, instead of indicating that it believes that this Court's previous rulings were incorrect, submitting argument as to why the rulings were incorrect, and/or how these decisions should be amended or vacated, or why Defendant should be granted relief from them, Defendant simply puts forth page after page of argument as if it were before the Court for the first time. The Court frowns upon this course of action because of the waste of time and resources it has necessitated. There are a appropriate vehicles by which a party my request reconsideration of an order or gain relief from an order of this Court. Re-argument on dispositive motions is not one of them.

The Court will first address the issues upon which it has previously ruled. The Court next considers Defendant's Motion to Strike Declarations. Last, the Court will address the remaining issues that are appropriately brought before it on the parties' motions for summary judgment.

A. Defendants' Previous Arguments

Defendant argues the following issues upon which this Court has already ruled (1) whether the class representatives appropriately represent the class; (2) whether the collective bargaining agreements to which class members are subject prevent this Court from ruling on the legality of Directive 3.07 § III(H); and (3) whether the evidence of harm before the Court is sufficient to uphold injunctive and/or declaratory relief.

1. The class representatives appropriately represent Plaintiff Classes.

Defendant contends that the class representatives' claims are not typical of the class claims because the classes include a diverse array of employees and the employees are members of four different bargaining units covered by four different collective bargaining agreements. On August 22, 2008, this Court issued an Opinion and Order which granted Plaintiffs' request to certify this action as a class action and to define...