Hemminghaus v. Missouri
| Decision Date | 13 February 2013 |
| Docket Number | Case No. 4:11CV736 CDP |
| Parties | NADINE HEMMINGHAUS, Plaintiff, v. STATE OF MISSOURI and GARY GAERTNER, JR., Defendants. |
| Court | U.S. District Court — Eastern District of Missouri |
Plaintiff Nadine Hemminghaus began working as a court reporter in Missouri state court in 1997. She was terminated in 2009. She alleges that her supervisor, Judge Gary Gaertner, Jr., terminated her in violation of her First Amendment rights because she criticized the police and prosecutor for not prosecuting a former nanny for abusing her children. She also alleges that her requests for time off to care for her children following the abuse were denied, in violation of the Family Leave and Medical Act. I conclude that defendants are entitled to summary judgment. Hemminghaus was not covered by the FMLA because, under the particular employment arrangements for official division court reporters in the Missouri Circuit Courts, she qualified as non-covered personalstaff of an elected official. Judge Gaertner is entitled to qualified immunity on the First Amendment claims, and her claims for equitable relief are moot.
In deciding whether to grant summary judgment, I must view the facts and any inferences from those facts in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The movant bears the burden of establishing that: (1) there are no genuine issues of material fact, and (2) it is entitled to judgment as a matter of law. Rule 56, Fed. R. Civ. P.; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the movant has met this burden, however, the non-moving party may not rest on the allegations in its pleadings but must, by affidavit and other evidence, set forth specific facts showing that a genuine issue of material act exists. Fed. R. Civ. P. 56(e).
Hemminghaus began working as an official "swing" court reporter in the Circuit Court of St. Louis County in 1997. As a swing reporter, she was assigned to a different judge's division each week. At that time, the director of judicial administration supervised all the swing reporters. In 2005, Circuit Judge David Vincent appointed her to be the official reporter for his division. The following year, Hemminghaus applied for an opening in defendant Gaertner's division. InOctober 2006, Gaertner appointed Hemminghaus as the official court reporter for his division.
As Gaertner's official court reporter, Hemminghaus was responsible making a verbatim record of everything that occurred on the record in his court. In exchange, she earned a salary and benefits that were paid by the State of Missouri. Hemminghaus was supervised directly by Gaertner, and she worked in his division along with his court clerk and bailiff. Gaertner sometimes allowed her to work from home and sometimes allowed her time off, but Hemminghaus never took leave without asking Gaertner ahead of time.
In September 2008, Hemminghaus discovered that her two young sons had been abused by their nanny. The nanny admitted to police that she had slapped the children. Later, the children began making disclosures about sexual abuse, and they developed significant behavioral problems, including anxiety and severe tantrums. Hemminghaus was critical of how the police and prosecutors were investigating her children's abuse. She eventually learned that the prosecutor's office had declined to press charges against the nanny.
In December 2008, an assistant county prosecutor called Gaertner to tell him Hemminghaus' former nanny had contacted the police to complain that Hemminghaus had been harassing her with telephone calls. The assistant prosecutor also told Gaertner that Hemminghaus had almost been arrested and hadbeen escorted from the police department after she had gone there to demand that the police take action on her children's abuse case.
Gaertner then called a meeting with Hemminghaus. He asked Gail Crane, a senior probate division employee, to mediate. At that meeting, which took place December 2, 2008, Hemminghaus asked Gaertner for permission to talk to the media about her children's case. Hemminghaus believed that the nanny was a danger to society and that the prosecuting attorney was not doing his job. According to Hemminghaus' testimony, Gaertner told her not to go to the media or she would be fired.
But Hemminghaus had already spoken to a local reporter by that time. She continued her contact with the reporter after the December meeting and also emailed the host of a national television show to criticize the police and the prosecutor's office, and she expressed concern that the nanny could potentially harm other children. She engaged other court employees in conversations about the case. She blogged several hundred times about her children's abuse on a parental support website, as well as on a site hosted by a local media outlet. Though she occasionally mentioned her familiarity or employment with the justice system, she blogged anonymously.
That same month, the nanny filed an ex parte order of protection against Hemminghaus, but the nanny voluntarily dismissed it 12 days later.
Between December 2008 and April 2009, Hemminghaus continued working as Gaertner's official court reporter. According to her testimony, she made numerous requests for leave to take care of her children during that period, but Gaertner denied or ignored most of her requests.
On April 27, 2009, Hemminghaus spoke to Gaertner on the telephone and asked for time off that morning to care for her son. At first, Gaertner acquiesced to her request. Later, he called back and told Hemminghaus she needed to come to work because there was something on the record. After she arrived at work, Hemminghaus and Gaertner had two conversations. In her answers to interrogatories, Hemminghaus described those interactions this way:
(Pl.'s Ex. 1, Answers to Interrogs., ¶ 10, p. 10.) The next day, April 28, 2009, Crane knocked on Hemminghaus' office door and told her Gaertner wanted to have another meeting. Hemminghaus believed at the time that Gaertner was going to fire her, so she arranged to have her attorney on speakerphone when she came to Gaertner's chambers.2 When Hemminghaus announced that her attorney was on speakerphone, Gaertner hung up the phone. Hemminghaus stated that she refused to be unrepresented during the meeting, so she left and returned to her office. After that, Gaertner spoke with several court employees and family members, and ultimately decided to terminate Hemminghaus' employment.
According to his testimony, Gaertner would not have fired Hemminghaus if she had remained in his office after he hung up on her attorney. Gaertner stated:
. . . having any third person involved in the [April 28] conversation totally vitiated my ability to supervise Ms. Hemminghaus. . . . if Ms. Hemminghaus had sat there and stayed in the room after I had terminated the conversation with [her attorney], I don't think we would have ever gone down the path of terminating her on that day. I'm about a hundred percent certain. . . . But when she refused to talk to me without [her attorney] present, it just - the working - working situation between me and Ms. Hemminghaus was irreparably harmed at that point in time.
(Pl.'s Ex. 9, Gaertner Dep. 206:9-20.)
The next day Gaertner signed an Employee Information form showing that Hemminghaus had been dismissed for "Unsatisfactory job performance & conduct and behavior." (Pl.'s Ex. 16, p. 3.) He also wrote a termination letter to Hemminghaus. In that letter, he wrote that Hemminghaus had "engaged in unprofessional conduct while at work," failed to arrive at work on time, and "caused several serious disruptions" within his division. Gaertner also wrote that he had spoken with Hemminghaus about these issues, but her performance had not improved. He wrote that her refusal to stay at the April 28 meeting without her attorney had "irretrievably broken" their working relationship and that it "necessitate[d] the immediate termination" of her employment. (Def.'s Ex. 5, p. 1.)
Hemminghaus alleges that the State of Missouri - through its agent Gaertner - violated her FMLA rights by either denying her leave to care for her children or retaliating against her for taking such leave. In their summary judgment motion, defendants first argue that Hemminghaus was not eligible for FMLA leave for a variety of reasons. They argue that Gaertner, not the state, was her employer, and he did not have the necessary 50 employees. They also...
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