West v. Wayne Cnty.

• Decision Date: 30 November 2016
• Docket Number: Case No. 16-1419
• Parties: CAVEN WEST, Plaintiff-Appellant, v. WAYNE COUNTY; CATHY M. GARRETT, Individually and in her capacity as Wayne County Clerk, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

CAVEN WEST, Plaintiff-Appellant, v. WAYNE COUNTY; CATHY M. GARRETT, Individuallyand in her capacity as Wayne County Clerk, Defendants-Appellees.

Case No. 16-1419

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

November 30, 2016

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 16a0632n.06

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

BEFORE: DAUGHTREY, CLAY, and COOK, Circuit Judges.

COOK, Circuit Judge. Caven West sued Wayne County ("County") and its County Clerk, Cathy Garrett, alleging that their termination of his employment violated the Family and Medical Leave Act ("FMLA" or "Act"), his First Amendment free speech and political association rights, and Michigan's Whistleblowers Protection Act. The district court granted summary judgment in favor of Garrett and the County on all three counts. West appeals. For the reasons set forth below, we AFFIRM.

I.

Before his termination, West served as Chief of Staff and Chief Deputy Clerk to Wayne County's elected Clerk, Cathy M. Garrett. His work consisted of managing projects and running the day-to-day operations for the Clerk's office.

In October 2013, Garrett demanded that West fire Lynn Wade, another County employee, when Wade returned from FMLA leave. West refused because he believed firing her would violate Wade's FMLA rights. When Garrett renewed her command weeks later, West again rebuffed her. Garrett then learned that Wade was negotiating with the County to settle a potential employment suit. The day before the County Commissioners' vote on the settlement, Garrett ordered West to attend the Commissioners' meeting and oppose the resolution. West rejected her directive, and the Commissioners approved the settlement on December 5, 2013. Shortly after, West left for a pre-approved vacation.

Upon West's return in January 2014, Garrett fired him. West sued the Country and Garrett, alleging that his termination for opposing Wade's firing violated the FMLA, 29 U.S.C. §§ 2601-2654; infringed upon his First Amendment free speech and political association rights pursuant to 42 U.S.C. § 1983; and contravened Michigan's Whistleblowers Protection Act, Mich. Comp. Laws § 15.361. Garrett and the County moved for summary judgment, and the district court granted their motion. West timely appealed.

II.

"We review de novo the district court's grant of summary judgment." Thomas M. Cooley Law Sch. v. Kurzon Strauss, LLP, 759 F.3d 522, 526 (6th Cir. 2014) (citing Geiger v. Tower Auto., 579 F.3d 614, 620 (6th Cir. 2009)). "Summary judgment is appropriate if, after examining the record and drawing all inferences in the light most favorable to the non-moving party, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Renfro v. Ind. Mich. Power Co., 497 F.3d 573, 575 (6th Cir. 2007) (citing Martin v. Ind. Mich. Power Co., 381 F.3d 574, 578 (6th Cir. 2004)). The non-moving party mustset forth more than a mere "scintilla of evidence" to rebut a summary judgment motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

A. The FMLA Claim

West alleges that Garrett fired him because he defended Wade's FMLA rights, thereby violating the FMLA's prohibition against retaliation. Garrett and the County assert that his claim fails because the FMLA plainly excludes the personal staff of elected officials from the category of employees eligible to sue. West offers two counterarguments. First, he urges this court to go beyond the plain language of the statute and expand the class of plaintiffs entitled to sue. Second, he disputes whether he falls under the FMLA's "personal staff" exclusion. We reject West's reasoning on both points and agree with the district court that he is not entitled to sue under the FMLA.

i. Cause of action under the FMLA

The FMLA forbids an employer from firing or otherwise "discriminat[ing] against any individual for opposing any practice made unlawful by this subchapter." 29 U.S.C. § 2615(a)(2). For a person to recover damages or equitable relief under the Act, however, he or she must be an "eligible employee." See 29 U.S.C. § 2617(a)(1); see also id. § 2617(a)(2); Horen v. Cook, 546 F. App'x 531, 533-4, 537 (6th Cir. 2013) (affirming summary judgment against plaintiff because she did not qualify as "an eligible employee" under the FMLA).

The FMLA draws its definition of "employee" from the Fair Labor Standards Act ("FLSA"). See 29 U.S.C. § 2611(3) (referring to § 203(e) of the FLSA for definition of "employee"). The FLSA generally defines "employee" as "any individual employed by an employer," but then outlines several exceptions. 29 U.S.C. § 203(e)(1). Of relevance to West,"employee" excludes any individual "selected by the holder of . . . an [elective] office to be a member of his personal staff." Id. § 203(e)(2)(C)(ii)(II).

Garrett and the County argue that the statute disallows a suit by West because, as a member of Garrett's personal staff, West is not an "employee" eligible to sue under the FMLA. Perhaps recognizing that the plain language of the FMLA precludes his suit, West makes several attempts to evade § 2617.

First, West proposes to "harmoniz[e]" a supposed incongruity between "the broad, remedial goals of the FMLA anti-retaliation provision [in § 2615]" and § 2617's restriction on who can bring suit. Noting that § 2615 prohibits unlawful discrimination against "any individual," he posits that Congress would not protect an individual from retaliation without giving that same individual a right of action with which to protect himself. He then proposes that the court read a right of action into § 2615 by ignoring the exceptions (including the "personal staff" exception) built into the definition of "employee." Under West's rendering, "any individual employed by an employer" could bring suit under § 2615. § 203(e)(1) (emphasis added).

West's interpretation falls flat because it relies on a false conflict for its opening premise. Congress could reasonably intend to broaden who would be protected against retaliation while simultaneously restricting which parties may seek damages or equitable relief for that retaliation. Cf. Roberts v. Hamer, 655 F.3d 578, 582-84 (6th Cir. 2011) (denying children of lessee statutory standing to sue where statutory language explicitly gives standing only to a "purchaser or lessee"). Following West's reading of the statute would mean disregarding the plain and unambiguous language of § 2617, which expressly reserves a private right of action only for "eligible employees." See Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530U.S. 1, 6 (2000) ("[W]hen "the statute's language is plain, the sole function of the courts . . . is to enforce it according to its terms" (citation and internal quotation marks omitted)). We accord the statutory language its plain meaning.

Second, West argues that the Department of Labor's regulation in 29 C.F.R. § 825.220 supports a broad interpretation of § 2615 that encompasses a right of action for "individuals" like West. Section 825.220(e) declares that "[i]ndividuals, and not merely employees, are protected from retaliation for opposing . . . any practice which is unlawful under the Act." West asserts that we must give Chevron deference to this interpretation. His argument fails here for reasons similar to the ones articulated above. Chevron's doctrine of deference to reasonable agency interpretation applies only where "the statute is silent or ambiguous with respect to the specific issue." Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984) (emphasis added). Although § 2615—and the Labor Department's interpretation—speaks to broad protection against retaliation, it says nothing about the specific issue of whether § 2617 gives West a right to sue. Additionally, West has identified no silence or ambiguity in the term "individual" or "employee" that warrants turning to an agency interpretation.

Finally, West attempts to graft Title VII's allowance of "third-party claims" onto the FMLA. He points to Thompson v. North American Stainless, LP, 562 U.S. 170 (2011), where the Supreme Court held that Title VII allows a third-party to sue when that party falls within the "zone of interests sought to be protected by Title VII." Id. at 178. Although we often apply Title VII frameworks to FMLA cases, the difference in statutory language here bars us from treading that worn path. See Hunter v. Valley View Local Sch., 579 F.3d 688, 691 ("Title VII decisions do not automatically control the construction of other employment discrimination statutes." (citing Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 173 (2009))). The statutory language ofTitle VII gives a right of action to "persons aggrieved," 42 U.S.C. § 2000e-5(b), (f)—a term broad enough to encompass third parties—while the FMLA limits recovery to "employee[s]," a term it defines specifically. 29 U.S.C. §§ 2611(3); 2617(a); 203(e). Thus, based on the plain language and facts before us, we find Title VII's third-party analysis inapplicable to the right-of-action question under § 2617.

ii. The FMLA's "personal staff" exception

Faced with the unambiguous language of the statute, West contends that he does not fall under the personal-staff exclusion. Garrett and the County argue that West functioned as a member of Garrett's personal staff and therefore has no cause of action. West disagrees. We find the appellees' arguments more persuasive.

To determine whether West was a part of Garrett's personal staff, we analyze a non-exhaustive list of six factors:

(1) whether the elected official has plenary powers of appointment and removal, (2) whether the person in the position at issue is personally accountable to only that elected official, (3) whether the person in the position at issue represents the elected official in the eyes of the public, (4) whether the elected official exercises a considerable amount of

...