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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0937%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2008

## Text

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0937%3A2. Public record. Not legal advice.