Darby v. Bratch

Decision Date11 April 2002
Docket NumberNo. 01-2006WM.,01-2006WM.
Citation287 F.3d 673
PartiesSusan C. DARBY, Appellant, v. Floyd BRATCH; Kansas City, Missouri Police Department; Kansas City Board of Police Commissioners; Joseph J. Mulvihill; Dennis C. Eckold; and Stacey Daniels, Dr., Appellees, Jeffrey J. Simon, Defendant, Kay Barnes; City of Kansas City, Missouri; Doug Weishar, individually and in his official capacity as a manager for the City of Kansas City, Missouri, and the Kansas City, Missouri, Police Department; Rosilyn Allen, individually and in her official capacity as a manager for the City of Kansas City, Missouri, and the Kansas City, Missouri, Police Department; Terrie Hagedorn, individually and in her official capacity as a manager for the City of Kansas City, Missouri, and the Kansas City, Missouri, Police Department; and Karl Zobrist, Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

Dennis E. Egan, Kansas City, MO, for appellant.

Bryan E. Round, Kansas City, MO, for appellee.

Before WOLLMAN,1 Chief Judge, RICHARD S. ARNOLD and HANSEN,2 Circuit Judges.

RICHARD S. ARNOLD, Circuit Judge.

Susan Darby brought this action alleging that the defendants, the Kansas City, Missouri, Police Department, the Kansas City Board of Police Commissioners, the City of Kansas City, Missouri, and several individual employees,3 violated the Americans with Disabilities Act, 42 U.S.C. § 12112(a), and the Missouri Human Rights Act, Mo.Rev.Stat. § 213.055 (2000). She also claimed that the defendants retaliated against her in violation of the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. In addition, the plaintiff brought claims for breach of her employment contract and violation of her constitutional rights, contrary to 42 U.S.C. § 1983. The defendants moved for summary judgment, and this motion was granted by the District Court. Ms. Darby appeals from the order of the District Court.

Specifically, Ms. Darby presents four major arguments on appeal:4 first, that the District Court incorrectly determined that the defendant, the Kansas City Board of Police Commissioners, was immune from suit pursuant to the Eleventh Amendment; second, that the Court incorrectly held that plaintiff failed to establish a prima facie case of retaliation under the Family and Medical Leave Act; third, that the Court erred in determining that plaintiff failed to establish a prima facie case of disability discrimination under the Americans with Disabilities Act; and fourth, that the Court failed to apply the Missouri Human Rights Act to disability discrimination in the area of employment. We affirm in part and reverse in part. We hold that the Kansas City Board of Police Commissioners is not immune from suit under the Eleventh Amendment, and that, on the present state of the record, triable issues of fact were presented under the Family and Medical Leave Act. In addition, we hold that the Missouri Human Rights Act does apply to disability discrimination in the area of employment, but we affirm the judgment on that claim on other grounds. We also affirm as to the claim under the Americans with Disabilities Act.

I.

In 1993, Ms. Darby began working for the Kansas City Police Department (KCPD) as a dispatcher in the communications unit. In 1994, she began experiencing symptoms of thyroid disease, including migraine headaches, heavy menstrual bleeding, weakness from loss of blood, difficulty concentrating, chills, digestive problems, trouble sleeping, bloating, extreme fatigue, difficulty breathing, increased heart rate, and anxiety. Ms. Darby was diagnosed with Graves's disease, a form of hyperthyroidism.

In March 1998, Ms. Darby applied for a transfer to the police academy. One of her supervisors, Captain Doug Weishar, advised Ms. Darby that he would approve this transfer if her use of sick leave decreased over the next six months. Soon after this agreement was made, Captain Weishar was replaced by Captain Rosilyn Allen. Captain Allen knew of the agreement between Ms. Darby and Captain Weishar, and indicated that she would honor it. Both were aware of Ms. Darby's diagnosis of Graves's disease. Between January 1998 and May 1998, Ms. Darby missed ten days and one hour of work due to her thyroid disease. On May 18, 1998, Captain Allen "disapproved" Ms. Darby's transfer request and passed the request on to her superiors, noting that "the monitoring of Dispatcher Darby's work attendance will continue...." Appellant's Appendix (App.) 289. Ms. Darby's thyroid disease continued to hinder her ability to attend work regularly.

Ms. Darby met with Captain Allen and Captain Terrie Hagedorn to discuss an improper helicopter "ride-along" on September 18, 1998. In a "ride-along," an employee rides in a helicopter along with the pilot in order to observe the job the pilot is doing. This can be a regular part of training. The defendants, however, contend that the ride-along was improper because Ms. Darby did not obtain advance permission for it. The plaintiff's position is that the policy requiring advance permission did not apply to the portion of the Police Department in which she worked. The policy as written, App. 203, appears to support plaintiff's position. At the meeting with Captain Allen and Captain Hagedorn, Ms. Darby was advised that continued absences from work would not be tolerated. Ms. Darby was also informed that she was being transferred to a new shift with a different zone assignment.5 During the meeting, Ms. Darby stated that she thought a transfer was discriminatory. According to Ms. Darby's testimony, Captain Allen responded, "I can show you discrimination." App. 291. The record indicates that Captain Allen knew of Ms. Darby's intention to use FMLA leave prior to this meeting.

On October 9, 1998, Ms. Darby applied for Family and Medical Leave Act leave. She met with Supervisors Hoskins and Hagedorn to discuss her request. At this time, she was presented with an amended mid-year evaluation that included a reference to an excessive use of sick time. As stated by the District Court, it is "[u]ncontroverted in the record... that Allen instructed Hagedorn to amend the mid-year evaluation for Darby to include a reference to Darby's absences due to her use of sick time." App. 292. These instructions were allegedly based on the attendance policy at the KCPD, Policy 98-2. However, because the attendance policy did not permit an employee to be disciplined for the use of sick leave, but did allow an employee to be disciplined for the use of unpaid leave, Supervisor Hagedorn recommended that Ms. Darby be terminated for her use of unpaid leave. According to the defendants, Ms. Darby was also presented with two Incident Reports, one relating to the helicopter ride-along and one relating to excessive use of sick time.6

While on FMLA leave, Ms. Darby received an Incident Report citing her absences from work and the use of her unpaid leave. The "Description of Allegation" reads, "dispatcher Darby has continuously utilized unpaid leave each of the last three years, in excess of the paid leave amount that the department grants employees of her tenure." App. 227. The report goes on to include the number of hours of unpaid leave Ms. Darby was granted in 1996, 1997, and 1998.7 There was no recommendation of discipline made in the revised Incident Report.

In April 1999, Ms. Darby planned to return to work. Because the Incident Reports were still pending, she contacted Captain Allen to determine if Captain Allen was planning to use the Reports to terminate her employment. When Ms. Darby met with Captain Allen, she was informed that because of her use of sick time, she would not be promoted. Ms. Darby then returned to work with the same job assignment and the same rate of pay as she had before her FMLA leave. However, Ms. Darby testified that after returning to work she was not placed on the schedule or on roster lists used to circulate information.8 On April 28, 1999, Ms. Darby resigned from the KCPD. Because the Incident Reports regarding Ms. Darby's use of unpaid leave and the ride-along are still pending, she is precluded from being rehired by the KCPD.

II.

This Court reviews a grant of summary judgment de novo. Iowa Coal Min. Co. v. Monroe County, 257 F.3d 846, 852 (8th Cir.2001). After reviewing the record in the light most favorable to the nonmoving party, the Court will affirm the decision if there are no genuine issues of material fact. Id.

A. Eleventh Amendment Immunity

We first address Ms. Darby's contention that the District Court erred in granting Eleventh Amendment immunity to the Kansas City Board of Police Commissioners. The District Court determined that the Kansas City Board of Police Commissioners was a political subdivision of the state of Missouri, and was, therefore, entitled to immunity. However, the District Court did not have the benefit of this Court's opinion in Gorman v. Easley, 257 F.3d 738 (8th Cir.2001), cert. denied, ___ U.S. ___ 122 S.Ct. 865, 151 L.Ed.2d 739 (2002). In that case, we held that the Kansas City Board of Police Commissioners does "not constitute an arm of the state for purposes of Eleventh Amendment immunity." Id. at 745. We based our reasoning, in part, on the Supreme Court's ruling in Auer v. Robbins, 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997), in which the Court held that the St. Louis Board of Police was "not an arm of the state" for Eleventh Amendment purposes. Gorman, 257 F.3d at 744 (internal quotations omitted).

Because our decision in Gorman is controlling on this issue, the District Court's determination that the Kansas City Board of Police Commissioners was entitled to Eleventh Amendment immunity must be reversed.

B. Family and Medical Leave Act

Next, we address Ms. Darby's argument that the District Court erred in determining that she failed to establish a prima facie case of FMLA retaliation.

The FMLA provides...

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