Kelly v. Town of Abingdon

558 F.Supp.3d 289

Gregory Warren KELLY, Plaintiff,

v.TOWN OF ABINGDON, VIRGINIA, Defendant.

Case No. 1:19CV00032

United States District Court, W.D. Virginia, Abingdon Division.

Signed September 7, 2021

Monica L. Mroz, Strelka Employment Law, Roanoke, Virginia, for Plaintiff.

Cameron S. Bell and Ramesh Murthy, Penn, Stuart & Eskridge, Abingdon, Virginia, for Defendant.

OPINION AND ORDER

James P. Jones, Senior United States District Judge

In this employment-related civil case asserting claims under the Americans with Disabilities Act ("ADA") along with a state law breach of contract claim, the defendant has moved for summary judgment. For the reasons that follow, I will grant the motion as to the ADA claims but will deny the motion as to the breach of contract claim.

I.

The following facts are taken from the summary judgment record and, where disputed, are stated in the light most favorable to the plaintiff as nonmovant.

Plaintiff Gregory Kelly became the Town Attorney for the Town of Abingdon ("Town") in 2005. He was appointed Town Manager in September 2006. Town Council meeting minutes from that month summarize the terms of his employment as follows:

I. Compensation

a. $100,000 base salary with standard Town employee benefits. Salary to be reviewed at least yearly upon the adoption of each year's annual budget.

b. $3,100.00 (or such amount representative of the annual cost of health insurance) to be paid into an ICMA, VRS or equivalent retirement plan as designated by the Town Manager on November 1, 2006 and each fiscal year thereafter.

c. The guarantee to return to the position of Town Attorney should serving in the capacity of Town Manager not be successful.

d. Nine (9) Months severance pay at the current amount of the Town Manager's salary and benefits at the time of departure if serving in the capacity of Town Manager is not successful and the position of Town Attorney is not available.

II. Education Expenses

a. The Town will pay all educational and incidental expenses in the pursuit of a Master's Degree in Public Administration or related field.

b. The cost of all annual Continuing Legal Education and incidental expenses required by the Virginia State Bar to remain actively licensed to practice law in Virginia.

c. All membership fees, conference costs and incidental expenses for LGA, IMLA, ICMA and VML.

Mem/Supp. Mot. Summ. J. Ex. 1, Kelly Dep. Ex. W, ECF No. 63-1.

In his deposition, Kelly discussed how he had negotiated the terms of his employment with the Town Council at the time. Kelly requested that he be entitled to a severance payment equaling two years of his salary and benefits, and the Town Council countered by offering three months of severance pay. Some back and forth ensued, and the parties settled on a severance payment equal to nine months of Kelly's salary plus benefits. Regarding the "not successful" term stated in the meeting minutes, Kelly testified:

Basically, it was my understanding, and I think council's understanding, that if something didn't work out between either party that required me to walk away or for them to get rid of me, it would be deemed unsuccessful, and I would be entitled to nine months severance at the rate that I was earning at that time, not at the $100,000 rate.

Pl.’s Br. Opp'n Mot. Summ. J. Ex. 1, Kelly Dep. 20, ECF No. 72-1. Kelly testified that the minutes were simply a summary of the parties’ agreement and that the terms were later memorialized in a separate formal employment contract.

The signed final employment contract has either been lost or never existed. It was not produced in discovery, and no witness other than Kelly claims to have seen it. The mayor at the time who would have signed it on behalf of the Town is in declining health and was not deposed.

Kelly produced a draft employment contract that he says he prepared at the request of Vice Mayor Ed Morgan following the September 2006 Town Council meeting where the parties agreed on the terms of Kelly's employment. Kelly testified that the draft "reflects all the details of what the agreement between me and the town was upon being hired." Id. at 23. Kelly stated that Morgan gave him handwritten notes summarizing the terms discussed and instructed him to " ‘[g]o prepare contract and have a copy of the notes and contract put with the minutes of the town council.’ " Id. "Ed wrote large notes on small pieces of paper, and those notes were placed with ... the signed document, and was directed to be put in the vault where all the town contracts were to be kept and also with the minutes. That's one thing that Ed made sure was that he wanted a copy of this to be put with the minute book." Id. at 24. Kelly testified that he and the mayor at the time, Lois Humphreys, both signed the contract, and Humphreys was to place it with the minutes in the vault.

The draft Kelly produced had been located in a file folder in his garage that also contained his resume and other materials from when he applied for the Town Manager job. At various points, Kelly and several Town Council members searched for the signed contract in the Town vault, but it was never found. The evidence suggests that access to the vault was not tightly controlled and many people could have gained access over the years.

Regarding the length of time for which the employment contract would be in effect, Kelly testified:

It was my understanding that it was perpetual as long as I was town manager, and upon me leaving, it would be enforced by either party. If they choose they didn't want me around, they could simply pay me or put me back in the position of town attorney if it was still available. Likewise, I had that right as well, to walk away, take the severance, or go back to the town attorney position, if it was available.

Id. at 29–30. Kelly stated that it was his understanding that even if he voluntarily retired from his role as Town Manager, he would still be entitled to the severance payment. He referenced a situation in the neighboring City of Bristol, Virginia, where an outgoing City Manager had received a severance payment equal to two years’ salary and benefits upon his retirement, which had occurred not long before Kelly's appointment as Town Manager. That situation had garnered negative press attention, so the Town Council did not want to grant Kelly such a large "golden parachute" severance package. Id. at 33–34. As a result, the parties agreed on the smaller amount of nine months’ salary and benefits. According to Kelly, the availability of the severance payment was the same, however: he would be entitled to it when his employment ended, regardless of the reason or manner in which it ended. Kelly stated that the severance payment was intended to account for the time it would take him to secure legal, managerial, or other employment following his departure from the Town.

Kelly testified that he had intended to work for the Town of Abingdon for the remainder of his career. In his view, the fact that his working conditions forced him to leave his employment rendered his service as Town Manager "not successful" as stated in the meeting minutes. The position of Town Attorney was not available at the time Kelly's employment as Town Manager ended.

The draft agreement that Kelly produced does not include the phrase "not successful" or anything similar. Instead, it states that should Kelly "cease to be employed by the Town of Abingdon, Virginia, regardless of reason (i.e. resignation, termination, or retirement, etc.), he shall be entitled to nine (9) months of severance pay at the rate of his salary at the time of ceasing employment." Pl.’s Br. Opp'n Mot. Summ. J. Ex. 12, Employment Contract 3, ECF No. 72-12. The draft agreement also states that "a copy of the adopted minutes of the Council meeting" reflecting Kelly's appointment as Town Manager "shall be attached to this employment contract and be incorporated herein by said reference." Id. The draft contract states that its terms are "perpetual in nature" but can be modified by mutual written agreement. Id. The draft contract further states, "Should either party breach this agreement, the non-breaching party shall be entitled to recover from the breaching party all costs and reasonable attorney's fees associated with the enforcement of this agreement." Id.

The draft contract that Kelly produced was printed on lined legal bond paper. He testified that when he was hired as Town Attorney, he used that paper for any legal documents he was preparing for the Town. The Town stopped using legal bond paper around the time Deborah Icenhour became Town Attorney in 2006.

Kelly testified that Town Council member Cathy Lowe periodically made statements to the effect that if Kelly left, the Town would have to pay him nine months’ salary as severance pay. Kelly says she made these statements 10 to 20 times, including on the day that he tendered his resignation. He testified that Council member Rick Humphreys made similar statements.

Kelly served as Town Manager for approximately 12 years. Following his departure, the Town paid Kelly for his accrued leave time but did not issue him any severance payment.

Kelly was diagnosed with anxiety at least as early as 2014 and with high blood pressure at least as early as 2016. Several employees witnessed visible symptoms of his high blood pressure, including profuse sweating and a red face. Former Council members expressed concern for his health and told him to go home when he was not feeling well.

Beginning in 2014 or 2015, local controversy arose regarding a proposed commercial development known as the Meadows. In 2016, two new Town Council members were elected: Cindy Patterson and Wayne Craig. Patterson and Craig were both members of a group called Friends of Abingdon ("FOA"), which was formed to oppose the Meadows project. Patterson ran on an open-government and anti-development platform. Craig publicly objected to aspects of how the Meadows project had been handled. They joined Council members...