The opinion of the court was delivered by: Garnett Thomas Eisele United States District Court
Before the Court is Plaintiff's request for remand of this action back to Pulaski County Circuit Court, from which it was removed. The Defendants have responded to the Court's Order to Show Cause, dated June 2, 2006. The Court is ready to resolve the jurisdictional issues presented. For the reasons stated below, the Court concludes that it will postpone a final decision on whether to remand the state law claims pending further resolution of the Plaintiff's alleged claim pursuant to the Family Medical Leave Act ("FMLA"), consideration of which the Court intends to expedite.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff filed his Complaint in Pulaski County Circuit Court on March 24, 2006. Defendants filed their Answer in the Circuit Court on April 18, 2006, and subsequently filed their Notice of Removal on May 1, 2006.
The primary purpose of Plaintiff's Complaint is to reverse and vacate a decision of the North Little Rock Civil Service Commission. Plaintiff seeks a de novo review of the North Little Rock Civil Service Commission's decision upholding Plaintiff's three-day suspension. Plaintiff alleges that a motivating factor in the punishment "was the time he has spent off work which qualified for family medical leave, caring for his child or medical problems of his own." (Complaint at ¶ 10).
Attached to Plaintiff's Complaint is a copy of the transcript from the hearing, held on March 9, 2006. A review of the transcript indicates that the North Little Rock Police Department pursued a three-day suspension against Officer Miller. For cause, NLRPD contended that while Officer Miller was on paid sick leave from June 12-20 due to a knee injury he sustained off duty, he worked an off-duty job on June 14th through June 17th at the Little Rock K-9 Academy. When Officer Miller returned to work, he is alleged to have completed falsely an NLRPD mandatory report asking if he had engaged in off-duty employment while off sick, by indicating that the had not done so.
Officer Miller requested at the hearing that the suspension be reduced to a letter of reprimand. For cause, he contended that he did not believe that this secondary employment, which he had engaged in for a number of years, required prior approval or was covered within the meaning of "other off-duty work." Officer Miller also relied on the fact that his work as an instructor at the K9 Academy was performed between 2:30 pm. and 9:00 p.m., hours that would not have interfered with his normal working hours with the NLRPD.
During Plaintiff's testimony an issue arose about Sergeant Neff coming to Officer Miller's residence on September 12th to question him about the use of a "sickness in family" day to take care of his daughter, who had "croup." The Commission sustained the NLRPD's objection to the testimony on relevancy grounds. Plaintiff attempted to elicit information about this event because it precipitated his subsequent visit to Lieutenant Tyree's house, apparently to complain about Sergeant Neff's visit. It was during this visit that Lieutenant Tyree allegedly advised Plaintiff that Sergeant Neff was looking into the fact that Plaintiff had worked off duty while on sick leave and directed Plaintiff to write a explanatory letter to Sergeant Neff regarding the incident, which Plaintiff failed to do.
On March 14, 2006, the North Little Rock Civil Service Commission upheld the three day suspension. Specifically, the Commission found that Officer Miller violated Standard of Conduct # 17, by failing to receive permission for his off-duty employment and by working at his off-duty employment during the time he was on paid sick leave from the NLRPD.
Plaintiff alleges in his Complaint that a "motivating factor in the investigation of the Plaintiff and his punishment was a complaint made by Plaintiff's wife about the conduct of Sgt. Tony Neff with the North Little Rock Police Department coming to her home and going to her place of employment while she was caring for Plaintiff's minor child who was ill." (Complaint at ¶ 3). Plaintiff also complains that a motivating factor in his punishment "was the time he has spent off work which qualified for family medical leave time, caring for his child or medical problems of his own." (Complaint at ¶ 10).
Plaintiff's Family and Medical Leave Act violation is more specifically premised on the following allegation:
The Plaintiff was at his residence in September, 2005 after taking his daughter to the doctor and was there because of the need to care for her, when the North Little Rock Police Department, in violation of the Family and Medical Leave Act, 29 U.S.C. § 2601, et seq., St. Neff came to his house which is not a permissible action to verify Family and Medical Leave usage. (Complaint at ¶ 11).
During the hearing, Lieutenant Tyree testified that he was aware that Sergeant Neff had been to see the Plaintiff in September and that the visit was made because of Officer Miller's excessive use of sick leave in 2005.
Plaintiff seeks an Order reversing and vacating the decision of the North Little Rock Civil Service Commission and an award of attorney's fees and costs. While the Complaint alleges that the Plaintiff has suffered mental anguish and loss of pay, it does not specifically pray for damages for such losses; nor does it allege the legal authority for recovery of such damages, assuming he is attempting to recover ...