The opinion of the court was delivered by: JAMES MOODY, District Judge
Pending before the Court is Defendant's Motion for Summary
Judgment, the response thereto, and Defendant's reply. Plaintiff
filed her complaint seeking relief under 42 U.S.C. § 2000 (e-2),
Title VII of the Civil Rights Act of 1964, as amended, and
28 U.S.C. § 2601 et. seq., the Family and Medical Leave Act (FMLA)
claiming that she was discriminated against because of her gender
in her opportunity for promotion and in her adverse working
conditions, and that Defendant interfered with her leave from
work Defendant moves for summary judgment. The Court hereby
denies Defendant's Motion for Summary Judgment.
As alleged in the complaint, Plaintiff is a female detective
and has been employed as a police officer by the City of
Jacksonville, Arkansas, since January 4, 1999. Plaintiff took
leave from work under FMLA when she delivered her second child by
cesarian section, with a date to return to work of August 25,
2003. On August 20, 2003, while on leave, Plaintiff was contacted
by Lieutenant Smiley of the Jacksonville Police Department and
informed she had to qualify with her pistol before she returned
to work from her maternity leave. See Defendant's Statement of
Uncontested Facts, p. 8, par. 58-59. The Plaintiff did qualify
on the firing range before returning to work on August 25, 2003.
The Plaintiff was scheduled for a promotional interview for
sergeant on August 27, 2003. Plaintiff had scored in the top
three (3) for eligibility in the test for promotion. On August
27, 2003, Plaintiff was directed to take the Essential Functions
test before her interview for sergeant. Id., at p. 2, par. 12.
After completing the essential functions test, which includes
running an obstacle course, jumping a fence, running up and down
stairs, shooting, pulling a 125-pound dummy from a car, and other
vigorous activities, Plaintiff was interviewed for the sergeant's
A panel of interviewers decided not to promote Plaintiff.
Included on the panel was Captain J.J. Martin of the Jacksonville
Police Department. According to the affidavits of Brian Keith
Henry and Jason Chrisman, Captain Martin had stated sometime in
1998 or 1999 that "real cops don't bleed once a month."
Affidavit of Brian Keith Henry, Exh. I to Plaintiff's Response
to Motion for Summary Judgment. At least one man was not
required to either qualify at the range or complete the essential
functions test prior to returning to full duty. Affidavit of
Jerry R. Keefer, Exh. K to Plaintiff's Response to Motion for
"Summary judgment is appropriate when the evidence, viewed in
the light most favorable to the nonmoving party, presents no
genuine issue of material fact and the moving party is entitled
to judgment as a matter of law." Fed.R.Civ.P. 56 (c); Turner
v. Gonzales, 421 F.3d 688 (8th Cir. 2005), citing (Hesse
v. Avis Rent A Car Sys., 394 F.3d 624, 629 (8th Cir. 2005)).
The initial inquiry is whether there are genuine factual issues
that can be properly resolved only by a finder of fact because
they may reasonably be resolved in favor of either party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250(1986). The burden is on
the moving party to show that the record does not disclose a
genuine dispute on a material fact. RSBI Aerospace, Inc. v.
Affiliated FM Ins. Co., 49 F.3d 399 (8th Cir. 1995).
The Eighth Circuit Court of Appeals has cautioned that summary
judgment should be invoked carefully so that no person will be
improperly deprived of a trial of disputed factual issues.
Inland Oil & Transport Co. v. United States, 600 F.2d 725
(8th Cir. 1979), cert. denied, 444 U.S. 991 (1979).
"Summary judgment should be cautiously granted in discrimination
cases because such cases often depend on inferences rather than
on direct evidence." Bradley v. Widnall, 232 F.3d 626,630-31
(8th Cir. 2000) (citing Crawford v. Runyon, 37 F.3d 1338,1341
(8th Cir. 1994). See also Breeding v. Arthur J. Gallagher &
Co., 164 F.3d 1151 (8th Cir. 1999). However, "there is no
"discrimination case exception" to the application of
Fed.R.Civ.P. 56, and it remains a useful pretrial tool to determine
whether or not any case, including one alleging discrimination,
merits a trial." Berg v. Norand Corp., 169 F.3d 1140, 1144
(8th Cir. 1999).
In a claim based upon discrimination, if the Plaintiff cannot
show direct evidence of discrimination, that is `evidence showing
a specific link between the alleged discriminatory animus and the
challenged decision, sufficient to support a finding by a
reasonable fact finder that an illegitimate criterion actually
motivated the adverse employment action', then an inference of
discrimination must be shown. Turner, 421 F.3d at 694. To
establish an inference of discrimination under the
burden-shifting analysis, the elements of a prima facie
discrimination claim for failure to promote are: 1) the employee
belonged to a protected class; 2) she sought a promotion; 3) she
was qualified for the promotion; and 4) the promotion was given
to another person who is not a member of the protected class.
Turner v. Honeywell Federal Mgf. & technologies, LLC,
336 F.3d 716 (8th Cir. 2003). Once the prima facie case of discrimination has been met, the
burden of production shifts to the defendant to show that it had
a legitimate, nondiscriminatory reason for its actions. Shannon
v. Ford Motor Co., 72 F.3d 678, 682 (8th Cir. 1996., [citing
Sprenger v. Fed. Home Loan Bank of Des Moines, 253 F.3d 1106,
111 (8th Cir. 2001) (citing St. Mary's Honor Center v.
Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 125 L.Ed. 2d 407
(1993))]. If this burden is met, the presumption of
discrimination disappears, requiring the plaintiff to prove that
the proffered justification is merely a pretext for
discrimination. Id. The burden of persuasion remains with the
plaintiff. St. Mary's, 509 U.S. at 507.
The Family and Medical Leave Act is codified at
29 U.S.C.A. § 2601 and states in pertinent part as follows:
Subject to section 2613 of this title, an eligible
employee shall be entitled to a total of 12 workweeks
of leave during any 12-month period for one or more
of the following: (A) because of the birth of a son
or daughter of the employee and in order to care for
such son or daughter . . . (D) Because of a serious
health condition that makes the employee unable to
perform the functions of the position of such
employee. 29 USC § 2612 (a)(1)(A)
* * *
As a condition of restoration under paragraph (1) for
an employee who has taken leave under section
2612(a)(1)(D) of this title, the employer may have a
uniformly applied practice or policy that requires
each such employee to receive certification from the
health care provider of the employee that the
employee is able to resume work, except that nothing
in this paragraph shall supersede a valid State or
local law or a collective bargaining agreement that
governs the return to work of such employees.
29 USC § 2614(a)(4) ANALYSIS
Plaintiff claims that the derogatory remarks made by one of the
interview panelists provides direct evidence of discrimination.
This Court agrees. Further, even if the remarks do not constitute
direct evidence, they cast doubt on the defendant's
nondiscriminatory reasons for failing to promote Plaintiff.
Another material question remains surrounding the allegation of
gender discrimination because at least one man states he was not
required to qualify at the range or take the essential functions
test prior to returning to duty after having been on FMLA leave.
Also, at issue is whether requiring the Plaintiff to qualify on
the range before being able to return to work with full pay was
an interference of her FMLA leave in violation of the Act.
The Plaintiff argues that another question under FMLA is
whether the Defendant considered the Plaintiff's leave time under
FMLA and other sick leave that should have been covered by FMLA
when deciding whether to promote her. The Defendant argues that
this allegation was not raised in the complaint, and therefore,
cannot be raised at this late date. The Court does not make ...