Walker v. Elmore County Bd. of Educ.

• Decision Date: 24 September 2002
• Docket Number: No. CIV.A. 01-T-067-N.,CIV.A. 01-T-067-N.
• Citation: 223 F.Supp.2d 1255
• Parties: Brandi Hare WALKER, Plaintiff, v. ELMORE COUNTY BOARD OF EDUCATION, Defendant.
• Court: U.S. District Court — Middle District of Alabama

Page 1255

223 F.Supp.2d 1255

Brandi Hare WALKER, Plaintiff, v. ELMORE COUNTY BOARD OF EDUCATION, Defendant.

No. CIV.A. 01-T-067-N.

United States District Court, M.D. Alabama, Northern Division.

September 24, 2002.

David B. Bryne, III, Beasley, Allen, Crow, Methvin, Portis & Miles, PC, Montgomery, AL, George Lamar Beck, Jr., Gregory M. Biggs, Terrie Scott Biggs, Montgomery, AL, Brenton L. Dean, Walton Law Firm PC, Auburn, AL, for Plaintiff.

G. Houston Howard, II, Howard, Dunn, Howard & Howard, Wetumpka, Al, for Defendant.

OPINION

MYRON H. THOMPSON, District Judge.

In this lawsuit, plaintiff Brandi Hare Walker charges that defendant Elmore County Board of Education violated her rights under the Family and Medical Leave Act, 29 U.S.C.A. §§ 2601-2654, frequently referred to as the FMLA. Jurisdiction is proper under 29 U.S.C.A. § 2617(2). This case is now before the court on the school board's motion to dismiss and alternative motion for summary judgment. For the reasons stated below, the dismissal motion will be denied and the summary-judgment motion granted.¹

I. BACKGROUND

Walker was hired by the Elmore County Board of Education as a non-tenured third-grade teacher on August 9, 1999. Although her contract was not approved until August 30, and her contract was not signed until September 8, her formal start date, noted on her contract, was August 9, 1999.

In early December 1999, she informed her school principal that she was pregnant. In early April 2000, she again brought her pregnancy to the attention of the school principal. The principal responded that she would not discuss Walker's employment status or maternity leave because Walker was a non-tenured employee. The principal stated that there would be a meeting of the school board sometime later in the spring to discuss re-employment of non-tenured staff. The principal did ask about Walker's due date, and Walker told her she was due on August 2, 2000. The principal wrote this information on a piece of paper. Walker orally requested maternity leave from the principal Dixon, but never received a response or confirmation that she was eligible for FMLA leave.

On or about May 12, 2000, the school principal informed Walker that she would not be re-hired. Later, the principal informed Walker that she would be replaced. Around May 17, Walker was served with a letter confirming her termination. Walker gave birth on July 27. Although Walker's teaching contract was not renewed, she continued to receive paychecks and health benefits through the end of August 2000.

II. DISCUSSION

A. Motion to Dismiss

Because the court is considering evidence outside Walker's complaint, the court will deny the school board's dismissal motion and consider only its alternative summary-judgment motion.

B. Summary-Judgment Motion

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Once the party seeking summary judgment has informed the court of the basis for its motion, the burden shifts to the nonmoving party to demonstrate why summary judgment would be inappropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); see also Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-17 (11th Cir.1993). In making a determination, the court must view all the evidence and any factual inferences in a light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).

The party seeking summary judgment has the initial burden of informing the court of the basis for the motion and of establishing, based on relevant "portions of `the pleadings, depositions, answers to interrogatories, and admissions in the file, together with affidavits, if any,'" that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. at 2553. Once this initial demonstration under Rule 56(c) is made, the burden of production, not persuasion, shifts to the nonmoving party. The nonmoving party must "go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Id. at 324, 106 S.Ct. at 2553; see also Fed.R.Civ.P. 56(e).

The FMLA and the regulations promulgated to enforce it provide "for two types of broad protections to employees. The first protections ... confer new and affirmative entitlements and thus are essentially prescriptive." Peters v. Community Action Committee, Inc. 977 F.Supp. 1428, 1432 (M.D.Ala.1997). For example, "[s]ubsection (a)(1) of § 2612 provides, in part, that `an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period ... [b]ecause of the birth of a son or daughter of the employee and in order to care for the son or daughter.'" Id. "The second FMLA protections ... bar certain discriminatory conduct and thus are essentially proscriptive." Id. Thus, for example, "[a]n employer is prohibited from discriminating against employees or prospective employees who have used FMLA leave." 29 C.F.R. § 825.220(c). Walker asserts both prescriptive and proscriptive claims.

Prescriptive Claim: Walker claims that, because she received paychecks and health care benefits for twelve months, she was eligible for FMLA leave benefits. The court does not agree.

The FMLA defines an eligible employee as an employee who has been employed "(i) for at least 12 months by the employer with respect to whom leave is requested under section 2612 of this title; and (ii) for at least 1,250 hours of service with such employer during the previous 12-month period." 29 U.S.C.A. § 2611(2)(A). Walker claims she was an FMLA-eligible employee because she was on Elmore County's payroll for a year. Specifically, she claims that, because her start date was August 9, 1999, and her final paycheck was dated August 30, 2000, and that she received health benefits until August 30, 2000, she was an eligible employee. The school board responds that Walker was not an eligible employee at the time her leave would have commenced because she had not worked 52 weeks, and asserts that she worked only the approximately nine months that cover a school year.

In addition, the court notes that Walker was a probationary, not a tenured, teacher. In Alabama, a teacher becomes tenured when she has served under contract for three consecutive school years. 1975 Ala. Code § 16-24-2; Lawrence v. Birmingham Bd. of Ed., 669 So.2d 910, 911 (Ala. Civ.App.1995). "Non-tenured or probationary teachers do not have the right to be reemployed." Id. at 912. In accordance with state law, Walker's employment contract specified that her "employment shall not constitute a contract beyond this one school year." The contract further specified that it was for "182 days." The school session was 182 days. The school board's policy concerning payroll stated that teacher's "salaries are earned in nine (9) months, but are distributed over twelve (12) months." The school board's sick leave policy, however, defined the "scholastic year" as July 1 through June 30. In addition, the parties do not dispute that Walker received health care benefits and paychecks through August 2000.

These facts are insufficient, as a matter to law, to support Walker's prescriptive claim. Even if Walker ultimately was employed for twelve months (assuming as she alleges that her start date was August 9, 1999), the denial of her FMLA leave clearly took place well before she had been employed for twelve months: either in May 2000, when her contract was not renewed; in July 2000, when she delivered her child; or on August 2, 2002, the due-date she gave her school principal. Each of these dates occurred before Walker had worked twelve months. As such, she was not an eligible employee and therefore she has no prescriptive claim.

Walker argues that she was entitled to six days of sick leave that she would have been able to use if she had not been terminated. But the sick leave would not have made any difference. Whether she did or did not take sick leave does not detract from the fact that, at the time she had her baby or was scheduled to have her baby, she was not an FMLA eligible employee entitled to FMLA leave.

Walker attempts to work around the absence of twelve-month's employment by arguing that she is covered by 29 C.F.R. § 825.111(b), which states that, "For purposes of determining whether intermittent/occasional/casual employment qualifies as "at least 12 months, 52 weeks is deemed to be equal to 12 months." Yet this regulation does not help Walker. By the plain language of this regulation, it applies the 52-week safe harbor to intermittent, occasional, or casual employees, which Walker was not. And again, and more importantly, at the time she had her baby or was scheduled to have her baby, she had not worked for 52 weeks and thus was not an FMLA eligible employee entitled to FMLA leave.

Proscriptive claim. As stated, in addition to prescriptive claims, the FMLA allows proscriptive claims and prohibits an employer "from discriminating against employees or prospective employees who have used FMLA leave." 29 C.F.R. § 825.220(c). The court must therefore address separately whether Walker's claim that she was not offered a contract for the 2000-2001 school year in retaliation for her request for FMLA leave warrants a trial.

A number of federal courts that have considered the issue have found that there can be no retaliation under the FMLA unless and until an employee becomes eligible under the FMLA. In Coleman v. Prudential Relocation, 975 F.Supp. 234 (W.D.N.Y.1997), the court found that the plaintiff could not sustain a retaliation charge...