The opinion of the court was delivered by: Hogan, M.J.
The parties consented to final disposition of this action by the undersigned United States Magistrate Judge. (Doc. 6). The Court has jurisdiction over this matter pursuant to 28 U.S.C. §1331. On April 17, 2006, this matter came before the Court for a jury trial on Plaintiff's claims of retaliation under the Family Medical Leave Act (FMLA). On April 19, 2006, at the close of Plaintiff's case, Defendant moved this Court for judgment as a matter of law as to Plaintiff's retaliation claims. Plaintiff, not surprisingly, opposes Defendant's motions. The Court heard arguments on Defendant's motion. For the reasons set forth more fully below, and in accordance with this Court's ruling from the bench, Defendant's Motion for Judgment as a Matter of Law is DENIED.
Fed. R. Civ. P. 50 provides in pertinent part:
If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.
Fed. R. Civ. P. 50(a)(1). In order to survive Defendant's motion for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(a), Plaintiff must present sufficient evidence to establish that a controverted issue of fact exists upon which reasonable persons could differ. Zamlen v. City of Cleveland, Ohio 906 F.2d 209, 214 (6th Cir. 1990), cert. denied, 499 U.S. 936 (1991); Hersch v. United States, 719 F.2d 873, 876-77 (6th Cir. 1983). On a motion for judgment as a matter of law, the Court must construe the evidence in the light most favorable to the non-moving party and consider the motion without weighing the credibility of witnesses or judging the weight of the evidence. Zamlen, 906 F.2d at 214; Hill v. McIntyre, 884 F.2d 271, 274 (6th Cir. 1989). The motion may be granted only if it is clear from the evidence that reasonable minds could come to but one conclusion. Coffy v. Multi-County Narcotics Bureau, 600 F.2d 570, 579 (6th Cir. 1979).
The acts which support Plaintiff's claim of retaliation were the appointment of three others to the rank of Sergeant of the Montgomery Police Department, despite the fact that Plaintiff ranked first on the list from which the successful applicant could be chosen. Such appointments are, and were, made by Montgomery's City Manager, Cheryl Hilvert, and she is free to choose from among the top three candidates as determined by the ratings provided by an independent testing group, Daum and Associates, Montgomery's Civil Service Commission, seniority and performance reviews. These criteria are weighted in favor of the opinion provided by Daum and Associates. Plaintiff, a Montgomery Patrolman since November, 1991, applied for the position of Sergeant in the years 2002, 2003, and 2004, was the top-rated candidate each time and each time, three different patrolmen were elevated. Although Plaintiff claims foul as a result of each appointment, the Court believes that the last appointment is the most suspect for reasons to be set forth momentarily.
It is obvious that certain criteria, not involved in the rating procedure, are and were important to the City Manager as she considered the candidates from the pool of three as she was directed by a provision of Montgomery's City Charter. As her testimony disclosed, these considerations, among other things, were the candidate's level of education and the candidate's prior military service. The fact that neither were required for promotion to the rank of Sergeant is irrelevant. It is as obvious to this Court, as it was to City Manager Hilvert, that either criteria could be determinative among a group of relative equals.
The first promotion in 2002 went to Greg Vondenbenken, who possessed a bachelor's degree in criminal justice and prior military experience. Since Vondenbenken was the second-rated candidate and possessed two assets that Plaintiff lacked, it appears very doubtful to this Court that this jury would consider the Vondenbenken appointment to be discriminatory. In 2003, when a second vacancy occurred, Mrs. Hilvert appointed John Crowell to the position of Sergeant. Although Crowell did not possess an academic degree, he was a former Army Ranger. That an Army Ranger would be preferred over someone with no military experience in a quasi-military environment, such as a police department, is no particular surprise to this Court, nor would it likely appear irregular to this jury. In addition, Crowell was a member of the SWAT team, a position for which Plaintiff applied, but for which he was not able to qualify due to his inability to run a 7-minute mile.
In 2004, however, when Plaintiff again applied for the position of Sergeant and again finished first on the rating scale, Patrolman Greg Harris, the third-rated candidate was selected and promoted. There are several factors which lead this Court to conclude that there are significant reasons why the jury might conclude, and in this Court's view probably will conclude, that Plaintiff's failure to succeed on that third promotional opportunity was the result of a poisoned environment. First, Plaintiff had previously been denied promotion twice, although the Court believes that these denials were not the result of a discriminatory animus.
Second, neither Harris nor Plaintiff had an academic degree or military service and neither stood out in City Manager Hilvert's mind. Third and most importantly, there was a police departmental misunderstanding of Plaintiff's rights under the FMLA and when the City Manager decided to seek a consensus among the police department supervisors as a method of distinguishing between candidates Harris and Wells, the table was set for a successful retaliation claim by Plaintiff Wells.
Plaintiff Wells took FMLA leave for the births of three of his children, Victoria in 1999, Benjamin in 2000 and Brooke in 2002. There is no question that the periods of leave were granted by the City of Montgomery and were properly characterized as FMLA leave, rather than other forms of leave, such as sick leave, personal days or vacation. There is also no question that the periods of leave, approximately 2 and 1/2 weeks in 1999 and 6 and 1/2 weeks in both 2000 and 2002 were permitted under the FMLA. It is significant to note that Plaintiff's mother died in the year 2000 and his wife's mother was employed and unable to provide the assistance that a person, who had just given birth, needs upon returning home from the hospital. It is also significant that Brooke had medical problems at birth, related to her respiratory system, and was an infant requiring special care. Thus, the need for the extended period of leave for the last two children is apparent or at the least, arguably apparent.
The fact that Plaintiff took advantage of the FMLA did not endear him to some of his colleagues on the police force, evidently because others had to work longer hours or more days until Plaintiff returned. The evidence was that a former chief approached Plaintiff in the presence of at least one other officer and remarked: "Congratulations for taking the most time off for having a baby and not actually having the baby." The Court strongly disapproves of such behavior and considers it unprofessional in the extreme, especially in a quasi-military environment where officers are dependent upon each other for their safety. There was evidence that the second in command, one Lt. Beitman, repeatedly shunned Plaintiff in the presence of other subordinates, thus giving tacit approval to the harboring of resentment toward Plaintiff for the exercise of a federally-protected right. That such "leadership" had its effect was apparent from the testimony of Sgt. Vondenbenken, who concluded that as a result of a consensus meeting of police supervisors, called to influence the undecided City Manager as to the department's preference for promotion to Sergeant, that Plaintiff had abused "sick time." The Court is impressed with the sincere attempt of Mrs. Hilvert to promote the best-qualified person, including the technique of a consensus group. However, she had no idea that what appeared to be a legitimate technique for breaking a logjam would provide the basis for a decision unknowingly influenced by negative feelings toward Plaintiff as a result of his use of leave, which was not only federally permitted, but freely granted by the City itself.
While the promotional decision was the sole prerogative of the City Manager, the decision was more likely than not influenced by the feeling of police supervisors, especially Lt. Beitman. While the evidence shows that Beitman and Plaintiff lacked mutual admiration from the start, the evidence suggests that the negative attitude toward Plaintiff increased on Beitman's behalf after Plaintiff started to take FMLA leave. Detective LaCalamento, for example, testified that Beitman would make facial expressions and gestures to indicate his disapproval of Plaintiff and at one time remarked "I hate that SOB," referring to Plaintiff.
In order to prove retaliation under the FMLA, Plaintiff has the burden to establish: (1) He took leaves of absence protected by the FMLA, (2) Defendant City knew that Plaintiff had taken such leave, (3) Defendant made an employment decision adversely affecting Plaintiff and (4) there was a causal link between Plaintiff's protected activity and the adverse employment action. The first three elements were not contested in this trial. The triable issue is the one on which there is a disputed fact. The causal link is disputed because there is evidence tending to prove that police supervisors considered FMLA leave in the course of making their recommendation to City Manager Hilvert. Accordingly, a Rule 50 ...