Susan C. Darby v. Floyd Bratch

Susan Darby brought this action alleging that the defendants, the Kansas City,
Missouri, Police Department, the Kansas City Board of Police Commissioners, the
City of Kansas City, Missouri, and several individual employees,3 violated the
Americans with Disabilities Act, 42 U.S.C. § 12112(a), and the Missouri Human Rights Act, Mo. Rev. Stat. § 213.055 (2000). She also claimed that the defendants
retaliated against her in violation of the Family and Medical Leave Act, 29 U.S.C.
§ 2601 et seq. In addition, the plaintiff brought claims for breach of her employment
contract and violation of her constitutional rights, contrary to 42 U.S.C. § 1983. The
defendants moved for summary judgment, and this motion was granted by the District
Court. Ms. Darby appeals from the order of the District Court.

Specifically, Ms. Darby presents four major arguments on appeal:4 first, that
the District Court incorrectly determined that the defendant, the Kansas City Board
of Police Commissioners, was immune from suit pursuant to the Eleventh
Amendment; second, that the Court incorrectly held that plaintiff failed to establish
a prima facie case of retaliation under the Family and Medical Leave Act; third, that
the Court erred in determining that plaintiff failed to establish a prima facie case of
disability discrimination under the Americans with Disabilities Act; and fourth, that
the Court failed to apply the Missouri Human Rights Act to disability discrimination
in the area of employment. We affirm in part and reverse in part. We hold that the
Kansas City Board of Police Commissioners is not immune from suit under the
Eleventh Amendment, and that, on the present state of the record, triable issues of fact
were presented under the Family and Medical Leave Act. In addition, we hold that
the Missouri Human Rights Act does apply to disability discrimination in the area of
employment, but we affirm the judgment on that claim on other grounds. We also
affirm as to the claim under the Americans with Disabilities Act.

I.

In 1993, Ms. Darby began working for the Kansas City Police Department
(KCPD) as a dispatcher in the communications unit. In 1994, she began experiencing
symptoms of thyroid disease, including migraine headaches, heavy menstrual
bleeding, weakness from loss of blood, difficulty concentrating, chills, digestive
problems, trouble sleeping, bloating, extreme fatigue, difficulty breathing, increased
heart rate, and anxiety. Ms. Darby was diagnosed with Graves’s disease, a form of
hyperthyroidism.

In March 1998, Ms. Darby applied for a transfer to the police academy. One
of her supervisors, Captain Doug Weishar, advised Ms. Darby that he would approve
this transfer if her use of sick leave decreased over the next six months. Soon after
this agreement was made, Captain Weishar was replaced by Captain Rosilyn Allen.
Captain Allen knew of the agreement between Ms. Darby and Captain Weishar, and
indicated that she would honor it. Both were aware of Ms. Darby’s diagnosis of
Graves’s disease. Between January 1998 and May 1998, Ms. Darby missed ten days
and one hour of work due to her thyroid disease. On May 18, 1998, Captain Allen
“disapproved” Ms. Darby’s transfer request and passed the request on to her
superiors, noting that “the monitoring of Dispatcher Darby’s work attendance will
continue . . ..” Appellant’s Appendix (App.) 289. Ms. Darby’s thyroid disease
continued to hinder her ability to attend work regularly.

Ms. Darby met with Captain Allen and Captain Terrie Hagedorn to discuss an
improper helicopter “ride-along” on September 18, 1998. In a “ride-along,” an
employee rides in a helicopter along with the pilot in order to observe the job the pilot
is doing. This can be a regular part of training. The defendants, however, contend
that the ride-along was improper because Ms. Darby did not obtain advance
permission for it. The plaintiff’s position is that the policy requiring advance
permission did not apply to the portion of the Police Department in which she worked. The policy as written, App. 203, appears to support plaintiff’s position. At
the meeting with Captain Allen and Captain Hagedorn, Ms. Darby was advised that
continued absences from work would not be tolerated. Ms. Darby was also informed
that she was being transferred to a new shift with a different zone assignment.5
During the meeting, Ms. Darby stated that she thought a transfer was discriminatory.
According to Ms. Darby’s testimony, Captain Allen responded, “I can show you
discrimination.” App. 291. The record indicates that Captain Allen knew of Ms.
Darby’s intention to use FMLA leave prior to this meeting.

On October 9, 1998, Ms. Darby applied for Family and Medical Leave Act
leave. She met with Supervisors Hoskins and Hagedorn to discuss her request. At
this time, she was presented with an amended mid-year evaluation that included a
reference to an excessive use of sick time. As stated by the District Court, it is
“[u]ncontroverted in the record . . . that Allen instructed Hagedorn to amend the midyear
evaluation for Darby to include a reference to Darby’s absences due to her use
of sick time.” App. 292. These instructions were allegedly based on the attendance
policy at the KCPD, Policy 98-2. However, because the attendance policy did not
permit an employee to be disciplined for the use of sick leave, but did allow an
employee to be disciplined for the use of unpaid leave, Supervisor Hagedorn
recommended that Ms. Darby be terminated for her use of unpaid leave. According
to the defendants, Ms. Darby was also presented with two Incident Reports, one
relating to the helicopter ride-along and one relating to excessive use of sick time.

While on FMLA leave, Ms. Darby received an Incident Report citing her
absences from work and the use of her unpaid leave. The “Description of Allegation”
reads, “dispatcher Darby has continuously utilized unpaid leave each of the last three
years, in excess of the paid leave amount that the department grants employees of her
tenure.” App. 227. The report goes on to include the number of hours of unpaid
leave Ms. Darby was granted in 1996, 1997, and 1998.7 There was no
recommendation of discipline made in the revised Incident Report.

In April 1999, Ms. Darby planned to return to work. Because the Incident
Reports were still pending, she contacted Captain Allen to determine if Captain Allen
was planning to use the Reports to terminate her employment. When Ms. Darby met
with Captain Allen, she was informed that because of her use of sick time, she would
not be promoted. Ms. Darby then returned to work with the same job assignment and
the same rate of pay as she had before her FMLA leave. However, Ms. Darby
testified that after returning to work she was not placed on the schedule or on roster
lists used to circulate information.8 On April 28, 1999, Ms. Darby resigned from the
KCPD. Because the Incident Reports regarding Ms. Darby’s use of unpaid leave and
the ride-along are still pending, she is precluded from being rehired by the KCPD.

* * *

We first address Ms. Darby’s contention that the District Court erred in
granting Eleventh Amendment immunity to the Kansas City Board of Police
Commissioners. The District Court determined that the Kansas City Board of Police
Commissioners was a political subdivision of the state of Missouri, and was,
therefore, entitled to immunity. However, the District Court did not have the benefit
of this Court’s opinion in Gorman v. Easley, 257 F.3d 738 (8th Cir. 2001), cert.
denied, 122 S. Ct. 865 (2002). In that case, we held that the Kansas City Board of
Police Commissioners does “not constitute an arm of the state for purposes of
Eleventh Amendment immunity.” Id. at 745. We based our reasoning, in part, on the
Supreme Court’s ruling in Auer v. Robins, 519 U.S. 452 (1997), in which the Court
held that the St. Louis Board of Police was “not an arm of the state” for Eleventh
Amendment purposes. Gorman, 257 F.3d at 744 (internal quotations omitted).

Because our decision in Gorman is controlling on this issue, the District
Court’s determination that the Kansas City Board of Police Commissioners was
entitled to Eleventh Amendment immunity must be reversed.

* * *

Click the case caption above for the full text of the Court's opinion.

The judgment of the District Court is affirmed in part and reversed in part, and
this case is remanded to the District Court for further proceedings consistent with this
opinion.

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