Mann v. Haigh

• Decision Date: 20 January 1995
• Docket Number: No. 4:94-CV-142-H3.,4:94-CV-142-H3.
• Citation: 891 F. Supp. 256
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Joseph A. MANN, Plaintiff, v. D.N. HAIGH, Assistant Director, Morale, Welfare and Recreation Directorate at Marine Corps Air Station, Cherry Point, North Carolina, Individually and in his official capacity as Assistant Director of such organization; Morale, Welfare and Recreation Department, Marine Corps Air Station, Cherry Point, North Carolina, and United States of America, Defendants.

891 F. Supp. 256

Joseph A. MANN, Plaintiff, v. D.N. HAIGH, Assistant Director, Morale, Welfare and Recreation Directorate at Marine Corps Air Station, Cherry Point, North Carolina, Individually and in his official capacity as Assistant Director of such organization; Morale, Welfare and Recreation Department, Marine Corps Air Station, Cherry Point, North Carolina, and United States of America, Defendants.

No. 4:94-CV-142-H3.

United States District Court, E.D. North Carolina, New Bern Division.

January 20, 1995.

COPYRIGHT MATERIAL OMITTED

David Voerman, New Bern, NC, for plaintiff.

Rudy Renfer, Asst. U.S. Atty., Raleigh, NC, for defendants.

ORDER

MALCOLM J. HOWARD, District Judge.

This matter is before the court on plaintiff's motion for a temporary restraining order. The plaintiff, a civilian employee of the United States Marine Corps, brought this action to protest his discharge from employment. The plaintiff was granted leave under the Family and Medical Leave Act ("FMLA"), and contends that he is entitled to return to work pursuant to that statute. In a Memorandum and Recommendation ("M & R") entered on October 31, 1994, United States Magistrate Judge Charles K. McCotter, Jr., recommended that this court deny the plaintiff's motion for a temporary restraining order. Plaintiff filed a timely objection, and the defendants responded. This matter is ripe for ruling.

The magistrate judge found that this court could exercise jurisdiction over the plaintiff's case. However, the plaintiff is a federal employee covered by Title II, rather than Title I, of the FMLA. Title II of the FMLA lacks a provision creating a civil cause of action. The magistrate judge accordingly held that the defendants' actions were subject to review under the Administrative Procedure Act ("APA"). The APA requires the exhaustion of administrative remedies prior to judicial review. The magistrate judge therefore recommended that the plaintiff's motion for a temporary restraining order be denied.

As additional grounds for denying plaintiff's motion, the magistrate judge also analyzed the plaintiff's case for a temporary restraining order. The magistrate judge found that the balance of the harms did not tilt decidedly in favor of the plaintiff. He specifically found that the plaintiff would suffer no irreparable harm should injunctive relief be granted and that the defendants would suffer no irreparable harm if the injunction issued. The magistrate judge further found that plaintiff's likelihood of success on the merits was ambiguous, and that the public interest might favor the plaintiff. On these grounds, the magistrate judge found that issuance of the requested injunction would be inappropriate even if the court did have jurisdiction.

Plaintiff states that he makes no objections to the findings of fact contained in the M & R. The plaintiff contends, however, that an exception to the APA's exhaustion doctrine applies in this case because the issue before the court is a narrow question of statutory interpretation. Plaintiff's contention is undermined by his own arguments concerning the availability of injunctive relief: he disputes the magistrate judge's finding that he will suffer no irreparable harm without the temporary restraining order. For this reason alone, the "statutory interpretation exception" to the exhaustion doctrine does not apply.

In light of the court's treatment of the jurisdiction issue, there is no need to address the merits of the plaintiff's request for preliminary injunctive relief. In the event that plaintiff is unsuccessful in obtaining the relief he seeks, he is free to refile this action.

Upon a careful and complete review of the M & R and the objections thereto, the court hereby ADOPTS the M & R as its own. Plaintiff's motion for a temporary restraining order is DENIED. This action is DISMISSED without prejudice, and the clerk is directed to close this case.

MEMORANDUM AND RECOMMENDATION

McCOTTER, United States Magistrate Judge.

This matter is before the court on plaintiff's Motion for Temporary Restraining Order. A hearing was held on this motion on October 11, 1994, in New Bern. Plaintiff was represented by David P. Voerman, and defendants were represented by Assistant United States Attorney Rudolph A. Renfer. Counsel also submitted supplementary memoranda of law in support of their respective positions.

For the reasons offered below, the plaintiff's Motion for Temporary Restraining Order should be denied.

PROPOSED FINDINGS OF FACT

1. Plaintiff Joseph Mann was employed as the MIS Manager, Fiscal Department, at the Morale, Welfare and Recreation Directorate ("MWR"), Marine Corps Air Station, Cherry Point, North Carolina. He had been employed at MWR for sixteen (16) years. He was removed from his position on September 30, 1994.

2. Defendant D.N. Haigh is the Assistant Director of MWR at Cherry Point; the defendant MWR is a non-appropriated fund instrumentality ("NAFI") operating aboard the Marine Corps Air Station at Cherry Point, providing retail, recreation, and entertainment services to military personnel; and the United States is a named defendant because MWR is a non-appropriated fund activity, and is considered a part of the U.S. Government.

3. On November 18, 1992, N.G. Wall, the Fiscal Officer in the Fiscal Department of MWR issued a Letter of Requirement to Plaintiff. The letter complained of Plaintiff's "repetitive, excessive, and extended absences from work due to chemical dependency" and set forth five requirements for Plaintiff to meet in the future. The letter warned, "Your continued employment is contingent upon the following requirements." The requirements demanded that Plaintiff (a) consistently meet his work schedule and perform his duties, (b) provide a doctor's certification for any unscheduled absence from work or sick leave beyond one day in duration, (c) notify N.G. Wall personally when Plaintiff needed to be absent from work, or the next level of supervision if Wall wasn't available, (d) have no recurrence of excessive and extended absence from work due to chemical dependency, and (e) avail himself of the services of a counseling service, and attend all counseling meetings.

4. Plaintiff has, from time to time, engaged in the excessive use of alcohol, which resulted in his taking absences from work. Plaintiff alleges this alcohol abuse is related to his bipolar disorder, for which he is receiving medical care and prescription medicine.

5. On August 16, 1994, N.G. Wall issued a Notification of Proposed Removal from Employment letter to Plaintiff. This Notification set forth the reasons for the proposed removal of the Plaintiff, gave Plaintiff seven (7) days to answer the notice, and stated that Plaintiff's removal, if effected, would occur no earlier than August 31, 1994. The reasons given for the proposed removal were:

a. On July 25, 1994, Plaintiff called in sick, and called Wall several times during the following week to let Wall know Plaintiff was still sick. Plaintiff remained out of work the week of July 25-29, 1994.

b. On August 1, 1994, Wall was informed that Plaintiff was apparently drinking heavily again. Wall spoke to Plaintiff's wife on August 2, 1994, and she indicated that Plaintiff had been drinking for over a week and had talked about killing himself. Plaintiff's wife reported that she had taken Plaintiff to the hospital and had him admitted with a reported blood alcohol level of .47. Wall contacted the counseling center and requested help. Ben Horton at the counseling center called Wall back later in the day to report that Horton and a Deputy Sheriff had gone to Plaintiff's house, where Plaintiff had refused to commit himself for treatment. Plaintiff reportedly continued to drink while Horton was at his house, and passed out during that time.

c. On August 3, 1994, Wall spoke with Horton again, and Horton reported that he had gone to Plaintiff's house again that morning, and Plaintiff agreed to be admitted for treatment. Horton made arrangements for treatment in Newport News, Virginia, and Plaintiff was taken to that facility for treatment.

The Notification also referenced several earlier episodes of either treatment for chemical dependency or absences from work due to such dependency.

6. Plaintiff was presented the above-described Notification on August 16, 1994, when he returned to MWR after treatment in Virginia. At that time, he did not offer a medical certificate or release concerning his absence from work. Plaintiff was placed on administrative leave from August 16, 1994, onward.

7. By letter dated August 29, 1994, Plaintiff applied for leave under the Family Medical Leave Act for the period July 25, 1994 to August 16, 1994. Plaintiff's attorney, Mr. David Voerman, also requested an extension of time to reply to the Notification on August 29, 1994. Defendant Haigh refused this request.

8. On September 7, 1994, Plaintiff and Mr. Voerman responded to the Notification by letter. This letter stated that Plaintiff suffers from alcoholism, and that alcoholism is a disease or disability recognized and protected by the Family Medical Leave Act, or in the alternative, the Americans with Disabilities Act. Plaintiff also requested, as reasonable accommodation under the Americans with Disabilities Act, that he be allowed to take a reasonable time as sick leave or vacation in order to obtain treatment for his disease. Included with the September 7 letter was an August 29, 1994, letter from Dr. Sharon Willingham, who diagnosed Plaintiff as suffering from Alcohol Dependency. Dr. Willingham certified that Plaintiff has a serious long term chronic condition (alcoholism) which cannot be cured, and which incapacitated him from work during the time period in question. Plaintiff also submitted in support of his response a series of job performance evaluations and letter or certificates of appreciation covering a number of prior years when Plaintiff was employed...