O'Reilly v. Montgomery County, Cause No. 1:02-cv-1242-DFH as JUDGE (S.D. Ind. 2/24/2003)
| Decision Date | 24 February 2003 |
| Docket Number | Cause No. 1:02-cv-1242-DFH as JUDGE. |
| Parties | KIMBERLY O'REILLY, Plaintiff, v. MONTGOMERY COUNTY and MONTGOMERY COUNTY PROBATION DEPARTMENT; MONTGOMERY COUNTY BOARD of COMMISSIONERS; CIRCUIT, SUPERIOR and COUNTY COURTS of MONTGOMERY COUNTY; HON. RAYMOND M. KIRTLEY, individually and in his official capacity COUNTY COURT OF MONTGOMERY; HON. THOMAS K. MILLIGAN, individually and in his official capacity as JUDGE, CIRCUIT COURT OF MONTGOMERY COUNTY; HON. DAVID A. AULT, individually and in his official capacity as JUDGE, SUPERIOR COURT OF MONTGOMERY COUNTY, and; MICHAEL P. KAZJER, individually and in his official capacity as CHIEF PROBATION OFFICER in MONTGOMERY COUNTY, Defendants. |
| Court | U.S. District Court — Southern District of Indiana |
This case concerns the termination of plaintiff Kimberly O'Reilly from her position as a probation officer in Montgomery County, Indiana. The defendants are the Montgomery County Probation Department ("the Probation Department"); Montgomery County, being sued as the Montgomery County Board of Commissioners ("Montgomery County"); the Circuit, Superior, and County Courts of Montgomery County; the Hon. Raymond M. Kirtley; the Hon. Thomas K. Milligan; the Hon. David A. Ault (the courts and the judges are referred to collectively as "the judicial defendants"); and Michael P. Kazjer, the Chief Probation Officer of Montgomery County. The court has jurisdiction pursuant to 28 U.S.C. § 1331.
In Count 1, O'Reilly alleges that Montgomery County, the Probation Department, and the judicial defendants violated the pregnancy discrimination provisions of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. In Count 2, she alleges that Montgomery County, the Probation Department, and the judicial defendants violated her rights under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. In Counts 3 and 4, O'Reilly alleges that Montgomery County and the Probation Department violated the Americans with Disabilities Act ("ADA"), 42 U.S.C § 12111 et seq. Finally, in Count 5, O'Reilly alleges that her rights under the Equal Protection Clause of the Fourteenth Amendment were violated and has stated claims under 42 U.S.C. § 1983 against the judges and Chief Probation Officer Kazjer in their individual capacities.
Defendants Montgomery County and the Probation Department filed a partial motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) and for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6). Defendant Kazjer, the Chief Probation Officer, joined in this motion and filed an additional motion for judgment on the pleadings, adopting the briefs submitted by Montgomery County and the Probation Department.
The judicial defendants also filed a motion to dismiss for lack of subject matter jurisdiction, for failure to file suit within the 90-day statutory limitation period, for failure to name them as defendants in the Equal Employment Opportunity Commission ("EEOC") charge, and because they are not "persons" within the meaning of Section 1983.
For the reasons stated below, the defendants' motions to dismiss are granted with respect to all of O'Reilly's claims except the Section 1983 claims against Kazjer and the judges in their individual capacities.
For purposes of a motion to dismiss under Rule 12(b)(6), the court takes as true the plaintiff's factual allegations and draws all reasonable inferences in favor of that party. Veazey v. Communications & Cable of Chicago, Inc., 194 F.3d 850, 853 (7th Cir. 1999). "Dismissal under Rule 12(b)(6) is proper only if the plaintiff could prove no set of facts in support of his claims that would entitle [her] to relief." Chavez v. Illinois State Police, 251 F.3d 612, 648 (7th Cir. 2001).
Taking the well-pleaded factual allegations as true, plaintiff O'Reilly began employment as a probation officer on March 3, 1999. Am. Cplt. ¶ 18. She alleges that she suffers from mental impairments that affect her ability to work. Id., ¶ 19. In late 2000, she became pregnant. On March 5, 2001, she suffered from medical complications requiring her to be placed on bed rest. Id., ¶ 24. In the twelve months immediately preceding March 5, 2001, O'Reilly worked more than 1,250 hours and had not exhausted twelve weeks of FMLA leave. Id., ¶¶ 26-24. She was released by her physician to return to work on a part-time basis beginning April 30, 2001. Id., ¶ 29.
O'Reilly alleges that when she returned to work on April 30, 2001, her direct supervisor, defendant Kazjer, inquired into her medical complications and plans for taking maternity leave. Id., ¶ 32. On May 3, 2001, she received a letter bearing the signatures of defendants Kazjer, Judge Kitley, Judge Milligan, and Judge Ault stating that she was being terminated immediately for errors found in her work while she was on medical leave. Id., ¶¶ 33-34. O'Reilly denies making mistakes serious enough to warrant dismissal. Id., ¶ 36.
In their motion to dismiss, the county defendants argue that the Board of Commissioners of Montgomery County and Montgomery County were not O'Reilly's "employer" under Title VII, the ADA, or the FMLA. Identification of an employer for purposes of the federal employment discrimination acts "is a question of federal law." Carver v. Sheriff of LaSalle County, Illinois, 243 F.3d 379, 382 (7th Cir. 2001), citing Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 754-55 (1998).
Under Title VII and the ADA, an employer is defined in general terms as "a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year." 42 U.S.C. § 12111(5); 42 U.S.C. § 2000e(b). Similarly, an employer under the FMLA is any person engaged in commerce or industry affecting commerce who employs 50 or more employees and any "public agency" as defined in 29 U.S.C. § 203(x). 29 U.S.C. § 2611(4). Under all three acts, an employee is defined tautologically as an individual "employed by an employer," with certain limited exceptions. See 42 U.S.C. § 2000e(f) (Title VII); 42 U.S.C. § 12111(4) (ADA); 29 U.S.C. § 2611(3) and 203(e) (FMLA).1
The identity of O'Reilly's employer is important because of the Eleventh Amendment and sovereign immunity. If the employer was the local county government, then the Eleventh Amendment is not a factor. See Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 369 (2001). If, however, her employer was the state judiciary, then the Eleventh Amendment's grant of sovereign immunity would bar suit under the ADA and the FMLA. See, e.g., id. at 367-68.
O'Reilly argues that the identity of her employer is a question of fact that cannot properly be decided on a motion to dismiss pursuant to Rule 12(b)(6). Her amended complaint alleges that Montgomery County was her employer for purposes of the ADA, FMLA, and Title VII. Am. Cplt. ¶ 13. O'Reilly argues that the court must accept this allegation as true at this stage. However, the allegation is a legal conclusion, which the court is "not obliged to accept as true." Hickey v. O'Bannon, 287 F.3d 656, 657-58 (7th Cir. 2002) (). Also, this issue is one properly decided on a motion to dismiss because the main indicia of employment, the right to control, is prescribed by Indiana statute.
The controlling standards in the Seventh Circuit were established in Alexander v. Rush North Shore Medical Center, 101 F.3d 487 (7th Cir. 1996). In Alexander, the plaintiff had staff privileges as an anesthesiologist at Rush North Shore Medical Center. As a condition of his privileges, he was required to spend a certain amount of time per week "on call" for the hospital's emergency room. Id. at 489. When the hospital later revoked his staff privileges for violation of the on-call policy, Dr. Alexander filed a lawsuit claiming that the hospital had discriminated against him because of his religion and national origin in violation of Title VII. Id. at 489-90. The hospital asserted that Dr. Alexander had no claim under Title VII because there was no employer-employee relationship.
The Seventh Circuit identified five factors to consider in deciding whether an individual is an employee: "(1) the extent of the employer's control and supervision over the worker, including directions on scheduling and performance of work, (2) the kind of occupation and nature of skill required, including whether skills are obtained in the workplace, (3) responsibility for the costs of operation, such as equipment, supplies, fees, licenses, workplace, and maintenance of operations, (4) method and form of payment and benefits, and (5) length of job commitment and/or expectations." Id. at 492, citing Ost v. West Suburban Travelers Limousine, Inc., 88 F.3d 435, 440 (7th Cir. 1996).
Of those factors, the employer's right to control is the most important. Alexander, 101 F.3d at 492-93. "If an employer has the right to control and direct the work of an individual not only as to the result to be achieved, but also as to the details by which that result is achieved, an employer/employee relationship is likely to exist." Id. at 493 (citations omitted). Indiana state law provides:
Probation officers shall serve at the pleasure of the appointing court and are directly responsible to and subject to the orders of the court. The amount and time of payment of salaries of probation officers shall be fixed by the court consistent with section 8 of this chapter to be paid out of the county or city treasury by the county auditor or city controller.
Ind. Code § 11-13-1-1(c) (emphasis added). Thus, in the case of a...
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