COVID-19 virus photo

Federal suit involves COVID-19, childcare

by Robin Kemp

A former City of Jonesboro probation officer is suing City Manager Ricky L. Clark, Jr, former Interim Police Chief Wilfred Norwood, and the City of Jonesboro in federal court after Clark allegedly fired her when she was unable to get a babysitter for her child, who had been exposed to COVID-19. Norwood no longer works for the city.

The case was reassigned today to federal Magistrate Judge J. Elizabeth McBath under the case number 1:21-1:21-cv-03854-ELR-JEM. McBath was sworn in today to replace retired Chief Magistrate Judge Alan J.  Braverman.

According to the suit, which was filed in the U.S. Northern District Court of Georgia on September 17, 2021, Nadine Lee alleged that Clark retaliated against her in violation of the Family Medical Leave Act (FMLA) and the Families First Coronavirus Response Act (FFCRA).

Lee, a single mother, had worked for the city as a probation officer since 2013. On July 2, 2020, while she was on a two-day vacation, Lee’s babysitter told her she had COVID-19 and that both Lee and her child had been exposed to the virus.

Lee “informed her supervisor [Cathy Graham] immediately upon learning of the exposure,” according to the complaint. On Monday, July 6, she again contacted her immediate supervisor, “reminding her supervisor that she had been exposed to COVID-19 less than 14 days prior and was taking ‘Public Health Leave’ in accordance with [city] employee policies.” The soonest she could get a doctor’s appointment was June 10. At that time, Lee’s doctor gave her a note “instructing [her] to quarantine until Monday, July 23, 2020.” Lee immediately sent a photo of the note to her supervisor. Clark then contacted her, telling Lee “to submit a request for leave and to send the aforementioned doctor’s note to him directly.” Lee did so on Sunday, July 12.

On Wednesday, Clark sent a memo to Lee, Mayor Joy Day, Norwood, and Lee’s supervisor, also placing a copy in her personnel file, telling Lee “that she was set to use the last of her Public Health Leave on Friday, July 17, 2020, and that she would be expected back in the office on Monday, July 20, 2020.”

During this time, Lee looked for a babysitter from July 2 through 15, but could not get one. Several told her they were not taking any new children because of the COVIDS-19 pandemic, or that they would not take her child “due to the child’s recent exposure to COVID-19.”

On July 19, Lee told Clark she had not been able to find a sitter and wanted to use FMLA leave until she could get childcare. Under FFCRA, which amended FMLA, Lee would have been able to get two weeks’ unpaid leave, followed by ten paid weeks’ at two-thirds of her salary. The policy is specifically meant to help  parents of minor children “if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.”

At $17.60 per hour full time, Lee made $704 per week before taxes. Her pay would have been just under $469 per week before taxes under FFCRA in weeks three to 12 of any leave, and she would have gotten no pay at all during weeks one and two.

Clark allegedly replied, “FMLA is for personal medical needs or to care for a family member dealing with medical issues. I do not see FMAL [sic] as an option for having no available childcare.” He added, “If you fail to return to work on Monday, July 20, 2020, and/or submit necessary doctor notices, as per Section D: (Abandonment) of our Personal [sic] Policies and Procedures, failure to report to work without valid reason and without prior authorization for two (2) consecutive work days may result in separating an employee from the payroll and reporting the employee as having abandoned their position.”

As a result, Lee turned in a letter of resignation on July 20 “to avoid having a termination for cause on her record.” She spent more than a year trying to find a similar position before filing suit. She had never been disciplined for any workplace infractions, according to the complaint.

Clark fired Lee on July 20, 2020, although Norwood had disciplinary authority, including the power to terminate her employment. The suit alleges that Clark did not consult an FMLA or FFCRA expert before making his decision.

The suit is seeking back pay and benefits and reinstatement. If reinstatement is not possible, Lee is asking for front pay and benefits “for a reasonable period of time” so she can “acquire comparable subsequent employment,” as well as attorney’s fees, liquidated damages, and interest.

In their response dated November 21, 2021, Clark and Norwood denied any wrongdoing. Their attorneys “assert[ed] the defense of official function, discretionary immunity and [will] show that at no time did [Clark or Norwood] act with actual malice or actual intent to injure plaintiff equivalent to a deliberate intention to do wrong.”

According to the defense, “on July 15, 2020, [Clark] informed [Lee] that [she had] exhausted all of her public health leave on July 17, 2020 and that if she was unable to return to work on July 20, 2020, she would be required to use three days of regular sick tim

On March 21, the case was consolidated into an identical complaint, due to a clerical error in the initial filing.

Norwood and Clark were scheduled to be deposed on March 30, as was the city’s representative on March 31.

See selected court documents for free on RECAP.

Robin Kemp is executive editor and CEO of The Clayton Crescent, which she founded in 2020. She has worked for Gambit, CNN, The Weather Channel, Clayton News, Henry Herald, and numerous freelance outlets....

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