Opinion
C.A. No. N13C-03-222 FSS
06-04-2015
RE: Marianne Watson-Pedrys v. Brandywine School District, et al
Albert M. Greto, Esquire Law Offices of Albert M. Greto 715 North Tatnall Street P.O. Box 756 Wilmington, DE 19899-0756 Marc S. Casarino, Esquire White & Williams, LLP 824 North Market Street, Suite 902 P.O. Box 709 Wilmington, DE 19899-0709
FRED S. SILVERMAN JUDGE Albert M. Greto, Esquire
Law Offices of Albert M. Greto
715 North Tatnall Street
P.O. Box 756
Wilmington, DE 19899-0756
Marc S. Casarino, Esquire
White & Williams, LLP
824 North Market Street, Suite 902
P.O. Box 709
Wilmington, DE 19899-0709
Upon Defendant's Cross-Motion for Summary Judgment - GRANTED. Dear Counsel:
Plaintiff claims that by failing to offer her a suitable replacement job, her employer, referred to here collectively as "Defendant," retaliated when she filed for workers' compensation and other benefits after becoming disabled. In its May 27, 2015 letter/order, the court denied Plaintiff's motion for summary judgment, but on May 29, 2015 it held oral argument on Defendant's cross-motion. Although this case is fact-intensive, the dispositive facts are undisputed. While denying it, Defendant contends that even if it bore Plaintiff ill-will, as a matter of law, Plaintiff suffered no wrong at Defendant's hands. Plaintiff is back to work, and any delay in that is legally attributable to her.
I.
On February 24, 2011, Plaintiff was undeniably injured on the job. In March 2011, she claimed workers' compensation and short-term disability benefits. The latter came through a State program. While now the court must believe Plaintiff's accusation about Defendant's retaliatory motive, it is agreed nonetheless that in July 2011, even as she was recovering from surgery, Defendant offered Plaintiff a para-professional job, starting August 24, 2011.
Short Term Disability Plan for State of Delaware, at p. 9 ("The Employer is responsible for making payment for benefits . . . .").
By August 13, 2011, Plaintiff's doctor had cleared her for sedentary work and everyone expected that Plaintiff's return was imminent. As it turned out, Plaintiff could not take the job because on September 12, 2011, her doctor announced that Plaintiff was not physically up to it. When her short-term disability benefits ran out ten days later, Plaintiff went on long-term disability. The ten day interval is where Plaintiff's damages claim begins, at the earliest.
Plaintiff alleges that Defendant only offered her the para-professional position because her lawyer threatened suit. She further alleges that after she could not take the offered position, Defendant out of animus did not immediately offer her a job within her restrictions. She alleges, in effect, that if only Defendant had offered her a different position within ten days of her declining the offered position, she would have gone to work in a sedentary job and she would not have had to go on long-term disability. In that way, Plaintiff blames Defendant for her going on long-term disability and remaining on long-term disability until she had received the maximum, two years later, as she did. The difference between her full pay and disability benefits is the core of her damages claim.
II.
Whether her decision to go on long-term disability was coerced as she claims, or not, the decision has significant legal impact. By law, once she exhausted her short-term disability benefits and she went on long-term disability, Plaintiff was no longer a state employee. And, although Delaware law gave her certain procedural rights in connection with being rehired after her disability ended, the rehire process, at least initially, is employee-driven.
21 Del. C. §5253(c)(5).
The statute is not explicit. But, the court holds that when a former employee who has been on disability is ready and able to return to work, she must initiate the process through the Office of Management and Budget, and go through an administrative process with OMB to determine whether she is, in fact, eligible to return. Only then is she entitled to certain legal protections relating to rehire.
See 21 Del. C. §5257: "Once an individual has been determined to have the ability to return to employment by the committee, the individual will receive the following assistance: . . . ."
Just as it now believes Plaintiff's allegation about Defendant's animus, it also believes Plaintiff's allegation that Defendant had many sedentary jobs available for Plaintiff while she was on disability. Even so, it is undisputed that Plaintiff took no legal step to return until after her long-term disability benefits expired. Then, on February 18, 2014, she sent an email to OMB.
The record shows that Plaintiff's last contact with OMB, which she recalls, before her February 2014 email was in July 2011, before her surgery. Although she may have called the OMB coordinator once or twice after September 2013, and perhaps did other things informally, she nonetheless did not ask to return to work and OMB did not qualify her to return to work until after February 2014.
As to that, even though it is not the agency that is going to offer her the job, OMB plays a pivotal role in the rehire process. By law, Plaintiff had to be cleared by OMB before her former employer, Defendant, rehired her. Jumping ahead, the court mentions that a foundation of Plaintiff's position is her contention that, as a matter of law, even before she had asked to return to work and before OMB cleared her, Defendant was legally obligated to notify her of potential jobs.
29 Del.C. § 5257: "Former nonmerit employees enrolled in and previously deemed eligible for the Long-Term Disability Program will be placed by their previous employer into a vacant position within their respective agency for which they qualify."
Anyway, in response to her formal request to return to work in February 2014, Defendant met with Plaintiff on May 27, 2014 to evaluate her return options. On June 19, 2014, Defendant returned Plaintiff to casual and seasonal work, and she became a full-time employee on September 2, 2014. For now, Plaintiff does not allege inordinate delay between her request to return to work in February 2014, her interim employment in June 2014, and her full return in September 2014. Again, Plaintiff's damages claim begins, at the earliest, on September 12, 2011 when her doctor disqualified her, and it ends, at the latest, on February 18, 2014 when she successfully triggered § 5257.
III.
First, procedurally both sides get forgiveness. Defendant never filed a formal answer, and Plaintiff never made a formal "§1983" claim. Substantively, Plaintiff's actual, first amended complaint falls into two counts. One, she indirectly claims Defendant deprived her of the right to due process under color of law. Specifically, she claims, as a matter of law, she was entitled to a replacement job within her restrictions, which Defendant schemed to deny her. Two, Plaintiff claims she was entitled to rehire under state law, and she is entitled to statutory damages because Defendant retaliated against her by not offering her a replacement job sooner. While Defendant disputes Plaintiff's factual allegations about its motives and ill-will, Defendant stands firmly on its argument that based on undisputed facts and the law, it is entitled to summary judgment on both accounts. Defendant is right.
A.
The due process claim fails for several reasons. First, as a quasi-state agency, the school district is not subject to suit under 42 U.S.C. § 1983. The school district can be "held liable only for those deprivations resulting from the decisions of . . . those officials whose acts may fairly be said to be those of the [school district]." Other than in conclusory fashion, at most, Plaintiff has identified neither a policy nor a single-decision by a policymaker specifically authorizing Plaintiff's alleged deprivation. A policymaker is someone with final, unreviewable discretion to act, i.e. a superintendent. Accordingly, Plaintiff's calling Kim Doherty, the human resources director, a policymaker falls short. Had Plaintiff had evidence that the district had a policy, which she did not, Doherty would merely have been its henchman, at worst.
See Santora v. Red Clay Consol. School Dist., 901 F.Supp.2d 482 (D.Del. 2012), aff'd, 580 Fed.Appx. 59 (3d Cir. 2014).
Id. at 487 (citing Bd. of Cnty. Comm'rs v. Brown, 520 U.S. 397, 403-04 (1997)).
See Santora, 901 F.Supp.2d at 487; see also, Andrews v. City of Phila., 895 F.2d 1469, 1481 (3d Cir. 1990).
Second, Plaintiff had no protected interest in a replacement job before February 2014, when she triggered the § 5257 process. In closing as to due process, it bears mention that the period covered by the due process claim is only one month in 2011. At that point, Plaintiff left state employment and did not ask to be rehired until 2014, as discussed above.
See Albrechta v. Borough of White Haven, 810 F.Supp. 139, 142 (M.D.Pa. 1992), aff'd, 91 F.3d 122 (3d Cir. 1996) (finding a valid property interest where a state statute between the employer and employee establishes such an interest); see also, 29 Del.C. § 5257. --------
B.
As to Plaintiff's retaliation claim, the law does not contain conditions Plaintiff seeks to impose on Defendant. Defendant had no legal duty to notify Plaintiff about available positions in the last ten days she was on short-term disability, especially not after she had just refused a presumptively suitable position. Similarly, as mentioned, Plaintiff did not meet the statute's rehire conditions before February 2014. Specifically, as Defendant tacitly conceded at oral argument, Plaintiff had to formally ask to be rehired, followed by her being cleared by OMB. As a matter of law, Plaintiff was not eligible for rehire until the point where Defendant rehired her in 2014. There was no unlawful delay.
The need for a formal process is obvious, and by-passing it invites confusion and litigation. The administrative procedure protects everyone. It prevents state employers from wrongly claiming former employees were not truly ready for rehire. Only when OMB says an employee is ready to return from short-term disability or a former employer is ready for rehire, is she ready to return or be rehired. By the same token, the process prevents a former employee from obtaining maximum disability benefits for as long as allowed, and then suing for lost wages, penalties, attorneys' fees, etc., all for a job the former employee did not truly want while benefits were available. The process provides a bright threshold.
Similarly, a state-employer is not legally required to maintain and distribute to former employees a list of available positions that may be suited to the former employee's needs. (Actually, there is evidence suggesting not only that available jobs were listed online, but the OMB coordinator sent Plaintiff return-to-work information in July 2011, when Plaintiff first wanted to return and was in direct touch with OMB.) Nor are state-employers required to otherwise counsel former employees about coming off disability and returning to work before they are cleared by the committee. Again, as a matter of law, while a former employee has a right to be considered for rehire, the return from disability process is employee-triggered.
IV.
To reiterate, the court has assumed that Defendant acted in bad faith toward Plaintiff, as alleged. Nevertheless, after Defendant correctly offered to re-employ Plaintiff in 2011, she failed to take the job due to her health, and ten days later she took long-term disability. When her benefits expired two years later, she again asked to return, went through the process, and was promptly rehired. Accordingly, there now is no need for fact-finding.
For the foregoing reasons, Defendant's Cross-Motion for Summary Judgment is GRANTED.
IT IS SO ORDERED.
Very truly yours,
/s/ Fred S. Silverman FSS:mes
oc: Prothonotary (Civil)