The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
CARRIE LORIMER, ) CASE NO. 1:23-CV-1695
)
Plaintiff, ) JUDGE CHARLES E. FLEMING
)
vs. )
) MEMORANDUM OPINION
MAYFIELD CITY SCHOOL DISTRICT ) AND ORDER
BOARD OF EDUCATION, et al., )
)
Defendants. )
)
I. Procedural History
Before the Court is Defendants’ motion to partially dismiss Plaintiff’s complaint. (ECF
No. 8). On August 29, 2023, Plaintiff filed a collective action complaint for violations of the Fair
Labor Standards Act (“FLSA”), the Ohio Minimum Fair Wages Standards Act (“OMFWSA”), the
Ohio Prompt Pay Act (“OPPA”), and retaliation. (ECF No. 1). On November 15, 2023,
Defendants moved to dismiss the overtime components of counts one and two, count three in its
entirety, and count five as to Defendants Nedlik and Engoglia. (ECF No. 8).
On December 8, 2023, Plaintiff partially opposed Defendants’ motion. (ECF No. 10).
Plaintiff does not oppose, “(1) the dismissal of any claim for overtime and (2) the dismissal of her
Ohio Prompt Pay Act (“OPPA”) claim (Count III).” (Id. at PageID #134). Accordingly, the Court
DISMISSES the overtime claims in counts one and two WITH PREJUDICE and DISMISSES
count three WITH PREJUDICE. The remaining issue is whether Plaintiff can raise a retaliation
claim under count five against Defendants Nedlik and Engoglia. Plaintiff argues that a plain text
reading of the definition of employer does not exclude employees of a public agency from liability,
so the retaliation claims against Defendants Nedlik and Engoglia should survive. (Id. at PageID
#136–40).
On December 22, 2023, Defendants replied in support of their motion. (ECF No. 11).
Defendants argue that the FLSA definition of “employer” is not inclusive of individual public
employees, so the anti-retaliation provision in Ohio Cont. Art. II, §34a does not extend to
individual public employees such as Defendants Nedlik and Engoglia. (Id. at PageID #144–45).
II. Legal Standard
To survive a Fed. R. Civ. P. 12(b)(6) motion to dismiss, a complaint must “contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). A claim is plausible on its face when “the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. at 678. The “complaint must contain direct or inferential allegations respecting all the material
elements under some viable legal theory.” Commercial Money Center, Inc. v. Illinois Union Ins.
Co., 508 F.3d 327, 336 (6th Cir. 2007). In assessing plausibility, the Court construes factual
allegations in the complaint in the light most favorable to Plaintiff, accepts the allegations of the
complaint as true, and draws all reasonable inferences in Plaintiff’s favor. Directv, Inc. v. Treesh,
487 F.3d 471, 476 (6th Cir. 2007).
III. Analysis
Count five of Plaintiff’s complaint asserts a claim of retaliation based on protected wage
complaints in violation of Article II, Section 34a of the Ohio Constitution against all Defendants.
(ECF No. 1, PageID #10). The relevant portion of Article II, Section 34a states, “[n]o employer
shall discharge or in any other manner discriminate or retaliate against an employee for exercising
any right under this section or any law or regulation implementing its provisions or against any
person for providing assistance to an employee or information regarding the same.” The term
“employer” is identified in the section as having the same meaning “as under the federal Fair Labor
Standards Act or its successor law” and “shall also include the state and every political
subdivision.” OH Const. Art. II, §34a. The FLSA defines employer as, “any person acting directly
or indirectly in the interest of an employer in relation to an employee and includes a public agency,
but does not include any labor organization (other than when acting as an employer) or anyone
acting in the capacity of officer or agent of such labor organization.” 29 U.S.C. § 203(d). The
FLSA further defines “person” as “an individual, partnership, association, corporation, business
trust, legal representative, or any organized group of persons.” 29 U.S.C. § 203(a).
Defendants argue that the FLSA definition of employer does not include employees of a
public agency. (ECF No. 8, PageID #44). Defendants cite to Mitchell v. Chapman, 343 F.3d 811,
832 (6th Cir. 2003), which held that public employees are not individually liable under the Family
and Medical Leave Act (“FMLA”). (Id. at PageID #44–45). Plaintiff responds that a reading of
the plain language of the FLSA definition of employer does not preclude individual liability
against public employees. (ECF No. 10, PageID #136). Plaintiff notes that the definition of
employer under FMLA is different than the definition provided by the FLSA, so the holding in
Chapman should not be extended to FLSA. (Id. at PageID #140). Defendants reply that the Sixth
Circuit has never extended the FLSA definition of employer to encompass individual public
employees. (ECF No. 11, PageID #143).
Defendants are correct that the Sixth Circuit has not weighed in on whether the FLSA
definition of employer extends to individual public employees. In Mitchell v. Chapman, the Sixth
Circuit considered individual liability of public employees in a related statute, FMLA. 343 F.3d
811 (6th Cir. 2003). The relevant section of the FMLA reads:
(A) The term “employer”—
(i) means any person engaged in commerce or in any industry or activity
affecting commerce who employs 50 or more employees for each working
day during each of 20 or more calendar workweeks in the current or
preceding calendar year;
(ii) includes—
(I) any person who acts, directly or indirectly, in the interest of
an employer to any of the employees of such employer; and
(II) any successor in interest of an employer;
(iii) includes any “public agency,” as defined in section 203(x) of this title;
and
(iv) includes the Government Accountability Office and the Library of
Congress.
(B) Public Agency
For purposes of subparagraph (A)(iii), a public agency shall be considered
to be a person engaged in commerce or in an industry or activity affecting
commerce.
29 U.S.C. § 2611(4). The Sixth Circuit concluded that the FMLA’s individual liability provision
does not extend to public agencies. Mitchell, 343 F.3d at 832. One of the three reasons that the
court cited was, “the FMLA distinguishes its definition of employer from that provided in the
FLSA by separating the individual liability and public agency provisions.” Id. The Sixth Circuit
noted in that decision that they had “never extended individual liability to public employees under
the FLSA.” Id.
Since Mitchell, district courts within the Sixth Circuit have come down in favor of and
against extending individual liability to public employees under the FLSA. Defendants cite to
Millington v. Morrow County Board of Commissioners, No. 2:06-cv-347, 2007 WL 2908817, at
*14 (S.D. Ohio Oct. 4, 2007) and Campbell v. Kelly, No. 3:09-cv-435, 2011 WL 3862019, at *5
(S.D. Ohio Aug. 31, 2011). Plaintiff argues the Court should follow Fraternal Order of Police
Barkley Lodge #60, Inc. v. Fletcher, 618 F.Supp.2d 712, 721 (W.D. Ky. 2008) and Stephen v.
Creal, No. 2:04-cv-648, 2005 WL 1159411 (S.D. Ohio May 17, 2005).
In Millington, the Southern District of Ohio reasoned, “[t]he fact that Congress indicated
an intent not to hold individual public agency officials liable under a similar definition in the
FMLA suggests that Congress likewise never intended to impose individual liability on public
employees under the FLSA.” 2007 WL 2908817, at *14. However, the court did not reach any
conclusion as to whether the definition of employer in the FLSA encapsulates public employees;
it found, “grounds for imposing individual liability have not been shown in this case.” Id.
In Campbell, the Southern District of Ohio found that the FLSA precludes claims against
public employers in their individual capacities. 2011 WL 3862019, at *5. As reasoning, the court
cited, “the obviously cobbled and imprecise language in the FLSA together with the intentional
similarities between it and the FMLA.” Id. The court determined, “[i]t would be incongruous to
permit FLSA claims against individual public employers, but not claims under the FMLA, which
was specifically modeled on the former.” Id. The Court does not find this reasoning to be
persuasive.
In Fraternal Order of Police, the Western District of Kentucky found no ambiguity in the
FLSA employer definition and held, “[t]he simplest and plain reading of the FLSA leads the Court
to conclude that public employees who act directly or indirectly in the interest of an employer,
including a public agency employer, in relation to an employee, may be held individually liable
under the FLSA.” 618 F.Supp.2d. at 721. The court noted it, “senses that the Courts who have
ruled otherwise have not based their decision on the plain language of the statute.” Id.
In Stephen, the Southern District of Ohio found that just because the Sixth Circuit has not
extended individual liability to public employees under the FLSA does not mean that the law
forbids the court from doing so. 2005 WL 1159411, at *4. In looking at the definition of employer
under the FLSA, the court held that a public official can be sued in their individual capacity for
violations of the Equal Pay Act. Id. at *6.
The courts that applied the Mitchell FMLA reasoning to the FLSA employ an unwarranted
mirroring technique. They argue that the FMLA is based on the FLSA and the FMLA resolves an
ambiguity within the FLSA, so the FLSA’s definition of employer should mirror the FMLA. See
Millington v. Morrow County Board of Commissioners, No. 2:06-cv-347, 2007 WL 2908817, at
*14 (S.D. Ohio, Oct. 4, 2007) (“The fact that Congress indicated an intent not to hold individual
public agency officials liable under a similar definition in the FMLA suggests that Congress
likewise never intended to impose individual liability on public employees under the FLSA.”).
However, that reasoning requires the Court to assume that Congress chose to change the definition
of employer in FMLA, rather than amending the FLSA, and assumed that courts would
retroactively apply that clarification to the FLSA.
The Court does not identify any ambiguity in the definition of employer provided in 29
U.S.C. § 203(d). The definition encapsulates liability for private employees and does not carve
out exceptions for employees of a public agency. Without clear, binding precedent to the contrary,
the Court finds that Section 34a applies to Defendants Nedlik and Engoglia.
IV. Conclusion
Defendants’ motion to partially dismiss Plaintiff’s complaint is GRANTED in part and
DENIED in part. (ECF No. 8). The Court GRANTS Defendants’ motion with respect to counts
one, two, and three, and DISMISSES the overtime claims in counts one and two WITH
PREJUDICE and DISMISSES count three WITH PREJUDICE. Defendants’ motion with
respect to count five is DENIED.
IT ISSO ORDERED.
Date: August 21, 2024 O“Vadd Hoang
CHARLES E.FLEMING
UNITED STATES DISTRICT JUDGE