Opposition Brief — Ellis v. Bradley County, Tennessee (No. 08-814)

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No. 08-814

OFFICE OF THE CLERK

In The

Supreme Court of the Anited States

DAVID ELLIS,

Petitioner,

Vv.

BRADLEY COUNTY, TENNESSEE,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

BRIEF IN OPPOSITION

Thomas E. LeQuire

Counsel of Record

David M. DiScenza

Spicer Flynn & Rudstrom, PLLC

537 Market Street, Ste. 203

Chattanooga, TN 37402

(423) 756-0262

Counsel for Respondent

QUESTIONS PRESENTED

1. Whether Petitioner has presented compelling

reasons to grant the Petition where the Sixth

Circuit's opinion affirming the District Court’s

dismissal pursuant to Federal Rule of Civil

Procedure 12(b)(6) does not present a departure

from the usual course of judicial proceedings as to

call for an exercise of this Court’s supervisory

power.

. Whether Petitioner has presented compelling

reasons why this Court should certify a question to

the Tennessee Supreme Court when there is no

uncertain question of state law whose resolution is

determinative to the disposition of the federal

claim.

il

PARTIES

The parties to this proceeding are accurately

set forth in the caption.

CORPORATE DISCLOSURE STATEMENT

PURSUANT TO SUPREME COURT RULE 29.6

Respondent, Bradley County, TN is a governmental

agency and there is no parent or publicly held

company that owns 10% or more of _ the

governmental corporation’s stock.

lil

TABLE OF CONTENTS

QUESTIONS PRESENTED...................00..-00s

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STATEMENT OF THE CASE. .................00002

REASONS FOR DENYING THE PETITION...

I.

II.

The 6% #£Circuit Court of Appeals

Affirmation of the District Court’s

Dismissal Pursuant to Fed. R. Civ. P.

12(b)(6) Did Not Depart From The

Accepted And Usual Course of Judicial

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The 6th Circuit Was Correct in Not

Certifying The Question of Who Was the

Plaintiffs Employer to The Tennessee

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1V

TABLE OF AUTHORITIES

CASES

Abercrombie v. City of Chattanooga,

313 S.W.2d 256 (Tenn.1958)............

Armbruster v. Quinn,

711 F.2d 1332 (6th Cir.1983).............

Bell Atlantic v. Twombly,

127 S.Ct. 1955, 560 U.S. 544 (2007)...

Bellotti v. Baird,

428 U.S. 132, 96 S.Ct. 2857 (1976)...

Bristol v. Board of Co. Commissioners of

the County of Clear Creek,

312 F.3d 1213 (10% Cir. 2002)..........

Burlington Industries, Inc. v. Ellerth,

524 U.S. 742, 118 S.Ct. 2257 (1998)...

Carver v. Sheriff of LaSalle County ,

Illinois, 243 F.3d 379 (7 Cir. 2001).

City of Houston v. Hill,

107 S.Ct. 2502, 482 U.S. 451 (1987)...

Cobb v. Sun Papers,

673 F.2d 337 (11% Cir. 1984)............

5, 6

6, 7

10

10

Hickey v. O’Bannon,

287 F.3d 656 (7th Cir. 2002)............

Lehman Brothers v. Schein,

94 S.Ct. 1741, 416 U.S. 386 (1974)....

Papasan Vv. Allain,

478 U.S. 265, 106 S.Ct. 2932 (1986)...

Welch v. Laney,

57 F.3d 1004 (11% Cir. 1995)............

Williams v. Meese,

926 F.2d 994 (10% Cir. 1991)............

STATUTES AND RULES

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OTHER AUTHORITIES

16B Charles Allan Wright et al.,

Federal Practice and Procedure

B4004. 3 (2d ed. 1987)..............0..cccccseseee. 4

5 C. Wright & A. Miller,

Federal Practice and Procedure

a ES ne 6

INTRODUCTION

Petitioner has presented no compelling

reasons for his Petition for Writ of Certiorari to be

granted by this Court. See Sup.Ct.R.10. Petitioner’s

attempt to comply with the court’s rules governing

review of lower court decisions is nothing more

than a veiled attempt to argue alleged

misapplication of a well stated rule of law.

Petitioner's claim that the court of appeals

deviated from the usual and accepted course of

judicial proceedings is without merit. Petitioner’s

argument is premised on the misguided theory that

a partys “employer” is a factual allegation

precluding dismissal under Fed. R. Civ. P. 12(b)(6).

For the purposes of federal employment statutes, a

party’s “employer” is a legal conclusion which is

determined as a matter of law by the cowt.

Therefore, there is no departure from the usual and

accepted standards in the dismissal of the action

pursuant to Fed. R. Civ. P. 12(b)(6).

Petitioner’s argument that the case should

be certified to the Tennessee Supreme Court

likewise lacks merit. There is no uncertain

question of Tennessee law which would be

determinative in this action.

2

STATEMENT OF THE CASE

Plaintiff was employed as the administrator

of the Tennessee Election Commission sitting in

Bradley County, TN. (Pet.App. at 5a). On October

6, 2006, Plaintiff was terminated from his position

by the election commission. (Pet. App. at 5a).

On December 7, 2006, Plaintiff filed suit

against Bradley County, TN, alleging that his

termination was in violation of the Family and

Medical Leave Act of 1993, 29 U.S.C. §§ 2601, et

seq., the Americans with Disability Act of 1990, 42

U.S.C. §§ 1201, et seq., and multiple state law

causes of action. (Pet. App. at 5a). Plaintiffs

complaint makes the erroneous legal conclusion

that his “employer” was Bradley County, TN. (Pet.

App. at 25a).

On March 13, 2007, Defendant filed a motion

to dismiss pursuant to Fed. R. Civ. P. 12(b)(6)!. In

the motion, Defendant argued that Plaintiff was an

employee of the state of Tennessee, and therefore,

Bradley County was not the proper party for any

actions based on alleged illegal employment

actions. (Pet. App. at 4a).

On June 22, 2007, the district court for the

Eastern District of Tennessee granted Defendant’s

' Defendant’s motion also included a 12(b)(1) motion based on

sovereign immunity of the state of Tennessee under the 11"

Amendment. The district court did not address the 12(b)(1) motion on

the grounds that rendering an opinion on the 12(b)(1) motion would in

violation of court’s jurisdiction under Art. III of the United States

Constitution. (Pet. App. at 19a).

3

motion. (Pet.App. at 4a). After a review of

Tennessee Supreme Court and other case law,

Tennessee Attorney General opinions, federal case

law and Tennessee statutes, the court concluded

that Plaintiff was an employee of the state of

Tennessee, rather than Bradley County. (Pet. App.

at 15a).

On appeal, the 6 Circuit affirmed the

district court's dismissal of Plaintiffs claims

pursuant to Fed. R. Civ. P. 12(b)(6). (Pet. App. at

la). In its opinion, the 6‘ Circuit relied, in part,

upon the Tennessee Supreme Court’s holding in

Abercrombie v. City of Chattanooga, 313 S.W.2d

256, 258 (Tenn.1958), which stated that a county

election commission, “is not an arm of the county

government.” (Pet.App. at 3a).

The appellate court also found that the state

election commission, rather than Bradley County,

had the power to hire, fire, discipline and control

Ellis. (Pet. App. at 3a). The 6t Circuit concluded

that the various statutes regarding budgeting and

finance, state and federal case law, and general

agency principals resulted in Ellis being an

employee of the State of Tennessee for the purposes

of a federal employment law action. (Pet.App. at

3a).

4

REASONS FOR DENYING THE PETITION

The decision of the 6% Circuit Court of

Appeals presents no issues worthy of this Court’s

attention. Petitioner attempts to create an issue

regarding a dismissal pursuant to Fed. R. Civ. P.

12(b)(6) conflicting with Fed. R. Civ. P. 8(a) based

on the complaint’s contention the Defendant was

Plaintiffs “employer.” This argument ignores

differences between factual allegations and legal

conclusions. The 6‘ Circuit correctly affirmed the

dismissal of the complaint pursuant to Fed. R. Civ.

P. 12(b)(6) because the status of a Plaintiffs

“employer” is a legal conclusion which is properly

decided by the court on a motion to dismiss.

Petitioner’s argument that the case should

be certified to the Tennessee Supreme Court is also

lacking merit. Certification is only an appropriate

remedy when there is a controlling issue of state

law and there is no controlling precedent. Neither

of these two factors are present.

While Petitioner has failed to show any

deviation from the usual and accepted course of

judicial proceedings, even if there was such a

showing, the case would not be worthy of this

Court’s review. This case does not involve any

principles of importance to the public, but rather

has limited application only to the parties in this

dispute. See, 16B Charles Ann Wright et al.,

Federal Practice and Procedure § 4004.1, at 27 (2d

ed. 1987).

5

5. THE 6TH CIRCUIT COURT OF APPEALS’

AFFIRMATION OF THE DISTRICT

COURTS DISMISSAL PURSUANT TO

FED. R. CIV. P. 12(b)6) DID NOT

DEPART FROM THE ACCEPTED AND

USUAL COURSE OF JUDICIAL

PROCEEDINGS.

Petitioner attempts to create confusion

regarding the dismissal pursuant to Fed. R.

12(b)(6) by arguing that the complaint met the

minimum pleading requirement of Fed. R. Civ. P.

8(a). (Pet. at 9). However, Rule 8(a) was never the

grounds for any motion by Defendant, or ruling by

any of the lower courts. (Pet. App. at la — 19a).

The only actual issue regarding the dismissal of

Plaintiffs complaint concerns whether the bare

assertion that a defendant is a party’s “employer”

precludes dismissal pursuant to Rule 12(b)(6).

Plaintiffs writ clearly fails to recognize the

distinction between factual allegations and legal

conclusions and the significance in the disposition

of a motion to dismiss pursuant to Fed. R. Civ. P.

12(b)(6).

While a complaint attacked on a Rule

12(b)(6) motion to dismiss does not need detailed

factual allegations, the complaint must contain

more than labels and conclusions in order to

provide grounds for entitlement to relief. Be//

Atlantic Co. v. Twombly, 127 S.Ct. 1955, 1964-65,

550 U.S. 544 (2007) (quoting, Papasan v. Allain,

478 U.S. 265, 286, 106 S.Ct. 2932 (1986)). When

the allegations in a complaint, however true, could

6

not raise a claim of entitlement to relief, “this basic

deficiency should... be exposed at the point in time

of minimum expenditure of time and money by the

parties and the court.” 7wombly, 127 S.Ct. 1955 at

1966 (quoting, 5 C. Wright & A. Miller, Federal

Practice & Procedure § 1216, pp. 233-234 (3d

ed.2004)).

On a motion to dismiss, a court is not bound

to accept a legal conclusion couched in terms of a

factual allegation as true. Twombly, 127 S.Ct. 1955

at 165 (citing, Papasan, 478 U.S. 265 at 286).

Whether a particular defendant is an “employer” in

a federal civil rights case is a legal conclusion

rather than a factual allegation which is properly

decided by a court in a Rule 12(b)(6) motion.

Hickey v. O’Bannon, 287 F.3d 656, 657-658 (7¢» Cir.

2002); Montgomery v. Brookshire, 34 F.3d 291, 295

(5th Cir. 1994); Williams v. Meese, 926 F.2d 994,

997 (10% Cir.1991); Armbruster v. Quinn, 711 F.2d

1332, 1339 (6% Cir. 1983); Cobb v. Sun Papers, 673

F.2d 337, 339 (11* Cir.), cert. dented, 459 U.S. 874,

103 S.Ct. 163 (1984).

In Bristo/] v. Board of County Commissioners

of the County of Clear Creek, 312 F.3d 1213 (10%

Cir. 2002), the 10 Circuit was examining a district

courts dismissal as a matter of law of an

Americans with Disabilities Act claim on the basis

that the Defendant, the county board of

commissioners, were not the Plaintiffs employer.

The Plaintiff claimed that the employment actions

of the Sheriff violated the A.D.A. and filed suit

against the county /J/d.,at 1215. The county sought

dismissal on the grounds that it was not the

Plaintiffs “employer” for the action.

The 10% Circuit examined such factors as

who had ability to control or fire the Plaintiff, the

state constitution and state budgetary statutes to

determine, as a matter of law, whether the county

was the proper defendant. Id., at 1219.

Ultimately, the court found that the Sheriff, not the

county board, had the ultimate authority to hire or

fire the Plaintiff and therefore, the Plaintiffs

“employer” was the Sheriff, not the county. Jd. at

1220.

| The 11 Circuit has used the equivalent

analysis in determining a Plaintiffs “employer” ina

federal employment action. In Welch v. Laney, the

court’s dismissal was based on whether the alleged

employer had the power to fire, hire, or modify the

employment condition of the employee. Welch v.

Laney, 57 F.3d 1004, 1011 (11 Cir. 1995). In

Welch, the court affirmed the district court’s

dismissal of the county defendant pursuant to Rule

12(b)(6) on the basis that the county “had no direct

control over Welch [plaintiff].” Jd.

The district court and 6 Circuit in the case

at bar undertook the same accepted analysis for

determining Plaintiffs “employer” for the purposes

of Plaintiffs federal civil rights claims. (Pet. App.at

la — 19a). In its comprehensive analysis, the

district court accepted all factual allegations in

Plaintiffs complaint as true, and then determined

8

whether Defendant was Plaintiffs “employer” as a

matter of law. (Pet. App. at 6a-7a).

In its examination, the district court in this

case reviewed various Tennessee _ statutes,

Tennessee Supreme Court and other case law, as

well as common-law agency principles. (Pet. App. at

7a- 15a). The court ultimately concluded that

Plaintiff was an employee of the state of Tennessee,

and therefore Defendant was not Plaintiffs

employer. (Pet. App. at 18a-19a).

In affirming the district court’s dismissal,

the 6t Circuit lkewise considered the various

statutes and case law. (Pet. App. at 3a). In its

analysis, the 6 Circuit found, “Because the

Bradley County Election Commission members are

hired, fired and disciplined by the state election

commission, Bradley County did not have the

authority to hire, fire or discipline Ellis.” (Pet. App.

at 3a). The 6t» Circuit affirmed the district court’s

dismissal on the basis that Bradley County was not

Plaintiffs employer, and therefore not a proper

defendant. (Pet. App. at 3a).

Petitioner has failed to show any departure

from the accepted and usual course of judicial

proceeding in the 6 Circuit’s affirmation of the

district court’s dismissal of Plaintiffs complaint

pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiffs

allegation that the county was his employer is a

legal conclusion which is properly decided by the

court as a matter oflaw.

9

Even if there were deviations from the

accepted standard regarding dismissal pursuant to

Fed. R. Civ. P. 12(b)(6), Petitioner has presented no

“compelling reasons” worthy of this Court’s review.

The specific issue in this case has _ limited

application to anyone other than Petitioner, and

therefore, does not raise any issue of national

interest.

IT. THE 6% CIRCUIT WAS CORRECT IN

NOT CERTIFYING THE QUESTION OF

WHO WAS PLAINTIFF’S EMPLOYER TO

THE TENNESSEE SUPREME COURT.

—€ertification is only appropriate when there

is an uncertain question of state law that would

affect the resolution of the federal claim. City of

Houston v. Hill, 107 S.Ct. 2502, 2514, 482 U.S. 451

(1987)(citing, Bellotti v. Baird, 428 U.S. 132, 96

S.Ct. 2857 (1976)). However, as the court in City of

Houston stated, “It would be manzrfestly

inappropriate to certify a question in a case where,

as here, there is no uncertain question of state law

whose resolution might affect the pending federal

claim.” Jd(emphasis added).

In Tennessee, certification is controlled by

Rule 23 of the Tennessee Supreme Court. Under

Rule 23, certification may only be invoked when

there are questions of law which will be

determinative and as to which it appears that there

is no controlling precedent in the decisions of the

10

Supreme Court of Tennessee. 7ennessee Rules of

the Supreme Court § 23.

“If a district court or court of appeals

believed that it can resolve an issue of state law

with available research materials already at hand,

and makes the effort to do so, its determination

should not be disturbed simply because the

certification procedure existed but was not used.”

Lehman Brothers v. Schein, 94 S.Ct. 1741, 1746,

416 U.S. 386 (1974).

In the case at bar, there are no uncertain

questions of state law which are determinative. As

both the district court and 6 Circuit pointed out,

the Tennessee Supreme Court has_ specifically

found the county election commission not to be an

arm of the county government. (Pet. App. at 3a,

10a-1lla); See, Abercrombie v. City of Chattanooga,

313 S.W.2d 256, 262 (Tenn.1958).

In addition to the clear Tennessee Supreme

Court precedent, any such state labels are not

determinative in the identity of Plaintiffs

“employer” in the current action. The identification

of an employer for purposes of federal employment

discrimination acts “is a question of federal law.”

Carver v. Sheriff of LaSalle County, Illinois, 243

F.3d 379, 382 (7% Cir. 2001)(citing, Burlington

Industries, Inc. v. Ellerth, 524 U.S. 742, 754-55,

118 S.Ct. 2257 (1998)).

Certification in this case would be completely

inappropriate. The Tennessee Supreme Court has

established precedent that the election commission

11

is not an arm of the county government. In

addition, any such determination by the Tennessee

Supreme Court is not determinative because

Plaintiffs “employer” for a federal civil rights case

is determined according to federal Jaw rather than

state labels.

CONCLUSION

The Petitioner has failed to establish any

compelling reasons to warrant this Court’s review.

The petition for writ of certiorari should be denied.

Respectfully submitted,

Thomas E. LeQuire, TN BAR #06875

Counsel of Record

David M. DiScenza, TN BAR #21863

SPICER, FLYNN & RUDSTROM, PLLC

537 Market Street, Ste. 203

Chattanooga, TN 37402

Telephone: (423) 756-0262

Fax: (423) 756-8489

E-mail: tel@sfrlaw.com

E-mail: dmd@sfrlaw.com

Counsel for Respondent

Bradley County, Tennessee

February 16, 2009