Mullendore v. City of Belding

Decision Date23 August 2017
Docket NumberNo. 16-2198.,16-2198.
Citation872 F.3d 322
Parties Margaret MULLENDORE, Plaintiff-Appellant, v. CITY OF BELDING; Dennis Cooper ; Thomas Jones; Mike Scheid, in their official capacities as members of the City of Council of Belding and in their personal capacities; Ronald Gunderson ; Jerome Lallo, in their official capacities as members of the City Council of Belding, Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

ARGUED: Sarah Riley Howard, PINSKY, SMITH, FAYETTE & KENNEDY, LLPL, Grand Rapids, Michigan, for Appellant. Mary Massaron, PLUNKETT COONEY, Bloomfield Hills, Michigan, for Appellees. ON BRIEF: Sarah Riley Howard, PINSKY, SMITH, FAYETTE & KENNEDY, LLPL, Grand Rapids, Michigan, for Appellant. Mary Massaron, Josephine A. DeLorenzo, PLUNKETT COONEY, Bloomfield Hills, Michigan, for Appellees.

Before: MERRITT, BATCHELDER, and CLAY, Circuit Judges.

OPINION

ALICE M. BATCHELDER, Circuit Judge.

Margaret Mullendore served as the City Manager for the City of Belding, Michigan. In January 2015, she notified the members of Belding's City Council—all five of whom are defendants—that she would be taking time off due to a surgery and indicated that she would be able to work remotely while recovering. While she was away from the office, the city council voted to terminate her employment, citing her role in causing political strife in the community. She sued under the Family and Medical Leave Act (FMLA). The district court granted summary judgment to the defendants, holding that Mullendore had not given sufficient notice that she would be taking FMLA leave, and that, in any event, the defendants provided a non-discriminatory reason for the termination. For the following reasons, we AFFIRM the district court's order granting summary judgment to the defendants.

I. BACKGROUND

Margaret Mullendore was hired as City Manager for the City of Belding, Michigan, in April 2013. Pursuant to her employment contract and the City Charter, the members of Belding's City Council could vote to terminate her employment at any time, subject to certain severance provisions. Her contract was renewed several times, including in November 2014, when the City Council voted to extend it by one year to expire in April 2016. But her tenure as City Manager was not without its speedbumps. For instance, Mullendore, in conjunction with the police chief, fired a city police officer who was involved in a fight while off-duty and who punched a woman who was eight months pregnant. The officer was later reinstated, and Mullendore endured the "extremely vocal" criticism of some citizens because of her decision.

As Mullendore states in her brief, "[o]perations of the Belding City Council are fairly described as being somewhat fraught with political drama." In November 2014, Joe Feuerstein, the City Council member who had made the motion to extend Mullendore's contract through April 2016, lost a recall election for his seat. Defendant Dennis Cooper won that election. Cooper had spoken at a City Council meeting earlier in 2014, voicing his displeasure with the direction of the City and advocating for a change in administration.

Cooper specifically wanted the City Council to terminate Mullendore's employment as City Manager. In December 2014, one month after he took his seat as a City Council member, he sent an email to other City Council members and local citizens. In that email, he stated, "It is no secret that I am not in favor of our city manager. She is an at will employee and can be terminated anytime for no reason at all ... I will push this issue as soon as the charter allows...."1 Mullendore received a copy of this email within several days, but she did not speak with Cooper about his scheme before the City Council's vote to terminate her.

On January 6, 2015—two weeks before being terminated—Mullendore provided each City Council member with a memorandum entitled "Personal Medical Issue." It read in part:

As some of you are aware, I sustained an injury to my ankle on October 27, 2014. Initially, this was identified as a significant sprain. However, as it failed to return to normal I was referred to an orthopedic for evaluation. Upon his review, including X-rays and an MRI he found damage that was not going to repair its self [sic] and would only continue to worsen if no remedial action was taken.
...
I will be having surgery on January 15th and will be off work until January 27th. Further, I will be limited to crutches and/or a knee wheeler for approximately 12 weeks. On the 26th of this month I will be put into a hard cast but I will not be allowed any weight bearing on my left leg until such time as the hard cast and boot cast (after the removal of the hard cast) are removed. City hall is not ADA compliant and I won't be able to do steps well, if at all. We evaluated using the police department's sergeant's office as that's the only ADA accessible part of the building. Having talked to our insurance company and looking at where I would have to park and going through snow and ice it has been advised by our claims agent that it would be best to work from home. This negates any liability the City would have should I fall trying to get into the building.
This precedent has been established by a previous manager as they [sic] were unable to raise their [sic] head due to a medical procedure and they [sic] worked from home for several weeks. We have a laptop we are setting up to access the network so that I will be able to work from home easily. I will schedule meetings that I can attend at the Depot as that is the easiest place for me to access during this time and the weather. I will not be attending the January 20th council meeting as the first ten to twelve days I will not be able to drive and will be on heavy pain medication. Kareen [Thomas, Belding City Clerk,] and I will have the agenda prepared and ready on Wednesday the 14th for council. Anything that needs extra attention will be presented by the appropriate staff member. During the time I am off Kareen will be tending to any areas needing my attention. We will be in constant contact through email, text, phone and FaceTime if necessary.
While I know this is not ideal, no time is the right time to have surgery and prolonging this only makes the diagnosis worse and possibly more in depth resulting in more time off. I will make sure that there is paperwork in my personnel file to substantiate my statements above.

After the January 6 City Council meeting, Mullendore and Ronald Gunderson, the City's Mayor, met to discuss her plans to work after the surgery. For instance, Mullendore and the City Clerk determined that they would not put any "major" items on the City Council meeting agenda while she was gone, and the various department heads could contact her if an issue were to arise. Additionally, she and Gunderson discussed the idea of her working from home. But, according to her deposition testimony, "it was never stipulated or intended or me stating that it would be a typical work week from home. It would be only on things that demanded immediate attention by me that nobody else could do." The City did, however, purchase a laptop for her use during her recovery so that she "could remotely access any of [her] files on the network" and for use while planning the City budget.

According to employees gathered at a staff meeting on or around January 6, Mullendore stated that she would not seek medical leave and declined to complete the City's FMLA paperwork.2 Becky Schlienz, then the City's finance director, also testified in her deposition that she asked Mullendore a week before this staff meeting if Mullendore wanted "to fill out the [relevant City] paperwork and get approved for FMLA...." Schlienz gave Mullendore the paperwork and stated that she did the same for any employee who would be out for FMLA-qualifying reasons. According to Schlienz, Mullendore "said she didn't want to take FMLA because she would just be taking off a few days and working from home." Schlienz and several other employees stated in their depositions, however, that they did not discuss Mullendore's comments concerning FMLA with the City Council members.

Cooper moved to terminate Mullendore's employment during the January 20, 2015, City Council meeting, though the motion was not on the agenda before the meeting. The motion passed. Although Defendant Thomas Jones voted in favor of the motion, the district court viewed a video of the meeting and, noting that Jones appeared hesitant to vote to terminate her, suggested that Jones's vote might have been different had Mullendore been at the meeting.

Following her termination, Mullendore sued, alleging violations of the FMLA by the City and the members of the City Council. The suit named Defendants Cooper, Jones, and Mike Scheid in both their individual and official capacities; it named Defendants Gunderson and Jerome Lallo in their official capacities only. The district court granted the defendants' motion for summary judgment from the bench following arguments by the parties. First, the district court found that a reasonable jury could not find that Mullendore's employer was on notice of her intent to take medical leave. Although the district court acknowledged that her memo indicated she would be taking time off for medical reasons, it found that "any reasonable reader of the memo" would find it to be a notification of her medical situation and a statement that she would be working from home. The district court called this an "accommodation," and said that it is "a fundamentally different thing than asking for a formal FMLA leave."

Second, the district court found that even if the memo did constitute sufficient FMLA notice, summary judgment was still warranted because a reasonable fact-finder could not "conclude that the proffered reason for the termination here, which is basically political controversy and distraction, was not the real reason, not a...

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