Mitchell v. Chapman

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 Mitchell v. Chapman, et al. No. 01-5571

ELECTRONIC CITATION: 2003 FED App. 0325P (6th Cir.)

File Name: 03a0325p.06 UNITED STATES DEPARTMENT OF JUSTICE, CIVIL

DIVISION, APPELLATE SECTION, Washington, D.C., for

Appellees. ON BRIEF: James M. Morris, MORRIS &

UNITED STATES COURT OF APPEALS MORRIS, Lexington, Kentucky, for Appellant. Sharon

Swingle, Mark B. Stern, UNITED STATES DEPARTMENT

FOR THE SIXTH CIRCUIT OF JUSTICE, CIVIL DIVISION, APPELLATE SECTION,

_________________ Washington, D.C., for Appellees.

JOEY L. MITCHELL , X _________________

Plaintiff-Appellant, -

- OPINION

- No. 01-5571 _________________

v. -

> PETER C. ECONOMUS, District Judge.

,

GLENN CHAPMAN , et al., - I. OVERVIEW

Defendants-Appellees. -

N The Appellant, Joey L. Mitchell (“Appellant” or

Appeal from the United States District Court “Mitchell”), appeals the district court’s grant of summary

for the Eastern District of Kentucky at Lexington. judgment to his employer, the United States Postal Service

No. 00-00179—Karl S. Forester, Chief District Judge. (“USPS”), and three USPS employees, in this action alleging

various civil rights claims.

Argued: February 7, 2003

Mitchell advances three arguments on appeal: (1) the

Decided and Filed: September 11, 2003 district court misapplied the doctrine of claim preclusion as a

means to bar the claims alleged against the defendants in the

Before: GILMAN and GIBBONS, Circuit Judges; defendants’ official capacities; (2) the district court should

ECONOMUS, District Judge.* have allowed his 42 U.S.C. § 1983 claims to proceed under

the holding of Bivens v. Six Unknown Federal Narcotics

_________________ Agents, 403 U.S. 388 (1971); and (3) the district court erred

in interpreting the Family and Medical Leave Act of 1993

COUNSEL (“FMLA”), 29 U.S.C. §§ 2601-2654 (1994), as to preclude

individual liability claims asserted against federal agency

ARGUED: James M. Morris, MORRIS & MORRIS, supervisors.

Lexington, Kentucky, for Appellant. Sharon Swingle,

For the reasons that follow, we AFFIRM the decision of

the district court.

*

The Honorable Peter C. Economus, United States District Judge for

the Northern District of Ohio, sitting by designation.

1

No. 01-5571 Mitchell v. Chapman, et al. 3 4 Mitchell v. Chapman, et al. No. 01-5571

II. BACKGROUND 173.) Mitchell further informed Chapman that he would have

to file for permanent disability if compelled to continue

A. FACTUAL HISTORY working as a letter carrier. (J.A., 40, 45, 116-17.) Ultimately,

Mitchell designated the eight hours as unscheduled sick leave.

On July 8, 1995, Mitchell began his employ as a letter (J.A., 24, 168.)

carrier at the United States Post Office located in Paris,

Kentucky (the “Paris Facility”). (J.A., 23, 166.) Prior to and Chapman immediately alerted Derrickson to Mitchell’s

throughout his employment, Mitchell suffered from chronic comments regarding the neck injury. (J.A., 77, 116-17.) In

neck pain arising from an injury that he sustained while response to this information, Derrickson instructed Mitchell

serving in the United States Navy. (J.A., 23, 54, 57-58,166.) to receive a medical fitness-for-duty examination (“FFD

Exam”).1 (J.A., 17, 24, 78-79, 117, 169.) Derrickson

On November 11, 1996, Mitchell’s treating physician, Dr. additionally transferred Mitchell from letter carrier to

Ballard Wright (“Dr. Wright”), certified that Mitchell’s neck temporary clerk duties pending the results of the FFD Exam.

pain was a chronic serious illness pursuant to the FMLA. (J.A., 24, 78, 117, 167-68.)

(J.A., 24, 54, 59, 166.) Dr. Wright’s certification indicated

that the neck injury required Mitchell’s occasional absence On May 15, 1997, Mitchell provided to Derrickson a letter

from work. (J.A., 24, 54, 59,166.) from Dr. Wright indicating that he was “medically cleared to

perform his duties as a letter carrier for the U.S. Postal

On February 12, 1997, Mitchell submitted a formal request Service with no restrictions.” (J.A., 12, 17, 24, 54, 60, 78-79,

to the Paris Facility Postmaster, Richard A. Derrickson 93, 168.) Dr. Wright’s letter further indicated that, “if a less

(“Derrickson”), requesting a transfer from his letter carrier physically strenuous position becomes available . . .

position to the position of clerk. (J.A., 16-17, 24, 77, 85.) [Mitchell should] be considered for such a position so as to

Derrickson took no immediate action on the transfer request. not exacerbate his head and neck pain.” ( J.A., 54, 60, 93.)

Derrickson refused to return Mitchell to the letter carrier

Several months later, on May 12, 1997, Mitchell failed to position pending the results of the FFD Exam. (J.A., 24, 79,

appear during his regularly scheduled shift. (J.A., 17, 24, 168.)

116.) When Mitchell returned to work the following day, his

acting supervisor, Glenn Chapman (“Chapman”), verbally On May 20, Mitchell’s collective bargaining representative,

reprimanded Mitchell for the non-excused absence. (J.A., 17, the National Association of Letter Carriers, AFL-CIO (the

24, 116, 167.) Chapman indicated to Mitchell that poor “Union”), filed a grievance (the “Grievance”) on Mitchell’s

attendance was a significant factor that could detrimentally behalf. The Grievance alleged violations of the FMLA and

impact Mitchell’s transfer request. (J.A., 45, 116, 167.) parallel provisions of the collective bargaining agreement (the

“CBA”) entered into between the Union and the USPS. (J.A.,

In response, Mitchell explained that his absence was the 17, 160, 169.)

result of a re-injury to his neck that he sustained while

carrying boxes of canned goods for a charity event. During

the ensuing volatile discussion, Mitchell declared his

intention to designate the absence as FMLA leave and 1

Postal regulations permitted management to order FFD Exams by

referred to Dr. Wright’s prior certification. (J.A., 24, 45, 167, a physician selected by the USPS “at any time and repeat as necessary, to

safeguard the emp loyee.” (J.A., 78, 89 -92.)

No. 01-5571 Mitchell v. Chapman, et al. 5 6 Mitchell v. Chapman, et al. No. 01-5571

On May 23, 1997, Dr. Robert Davenport (“Dr. Dr. Gilbert responded to Nickles’s request as follows:

Davenport”), a physician under contract with the USPS,

conducted a FFD Exam of Mitchell. (J.A., 13, 17, 24-25, 40, [B]ased on my exam and discussion with the patient and

45, 54, 61-66, 79, 169.) Dr. Davenport rendered three the fact that the patient tells me that he feels he can do

determinations regarding Mitchell’s condition: (1) Mitchell his job without restrictions, I feel this [sic] is not

maintained the ability to perform letter carrier duties so long unreasonable for him to perform his job without

as he refrained from carrying mail with a satchel; (2) Mitchell restrictions. If the [USPS] would like a more detailed

could continue to perform clerk duties and maintain a low risk assessment of restrictions, . . . we would need to proceed

for injury; and (3) Mitchell should be referred to a with a functional capacity evaluation done by a licensed

neurosurgeon, Dr. John Gilbert (“Dr. Gilbert”), for further physical therapist.

evaluation. (J.A., 25, 54, 66.)

I note in your records that [Mitchell] has said that the

That same day, the USPS denied the Grievance. (J.A., stresses from carrying a satchel cause him problems on

160.) Pursuant to the CBA, the Union initiated Step 2 of the his neck. If this is indeed true, then I would recommend

grievance procedure requesting that the USPS award Mitchell that he not carry the satchel. However, the patient did

backpay, sick / annual leave, and reinstatement to letter not tell me this. He told me he felt he could do his job

carrier duties. (J.A., 13, 161.) without restrictions. If you want to be on the safe side

and if it is true that the patient feels that the satchel’s

By letter dated June 9, 1997, the USPS denied the requested giving him problems, then we need to get rid of the

relief stating, “In the interest of the Grievant’s health and satchel.

safety, Management has taken [Mitchell] out of the situation

causing him physical problems, pending further evaluation. (J.A., 25, 55, 72.)

Therefore in the absence of any contractual violation, the

grievance is denied.” (J.A., 161.) The Union thereafter Nickles ultimately reported to Derrickson that Mitchell

initiated Step 3 of the grievance procedure. (J.A., 13, 162- “[c]ould continu[e] carrying mail if [Mitchell] doesn’t use [a]

64.) satchel.” (J.A., 55, 74, 79.) Derrickson did not, however,

return Mitchell to full letter carrier duties. (J.A., 79.)

A third physician, Dr. Gilbert, examined Mitchell on

June 30, 1997 and issued a report returning Mitchell to work On August 11, 1997, Mitchell submitted a second request

duty without restrictions. (J.A., 13, 17, 25, 69, 169.) for transfer to a full-time clerk position. (J.A., 13, 18, 25, 80,

Subsequently, Naewana Nickles (“Nickles”), a USPS 95.) Derrickson approved the request on August 19, 1997.

Occupational Health Nurse Administrator responsible for (J.A., 13, 25, 80, 95.)

reviewing medical evaluations of USPS employees, received

Dr. Gilbert’s report. (J.A., 13, 25, 55.) Nickles found the On August 25, 1997, Dr. Gilbert issued a supplemental

report deficient in several respects and requested that Dr. report to the USPS indicating that Mitchell “can’t work with

Gilbert specifically address whether Mitchell could perform a neck harness because it puts him at a high risk” for injury.

“all of the essential functions of a City Carrier without risk of (J.A., 55, 75.) Dr. Gilbert further indicated that he examined

hazard to self or others.” (J.A., 13, 18, 25, 55, 70-71, 169- a model USPS waist harness for carrying mail that “transfers

71.) the weight from the bag from the shoulder to the waist” and

No. 01-5571 Mitchell v. Chapman, et al. 7 8 Mitchell v. Chapman, et al. No. 01-5571

that Mitchell was at a “low risk” of injury while using the On June 6, 1998, Mitchell filed a formal EEO complaint of

waist harness. (J.A., 13-14, 55, 75.) Consequently, Dr. discrimination (“EEO Complaint) with the USPS alleging

Gilbert “recommended releasing Mr. Mitchell to full duty disability discrimination “based on accommodation.”3 (J.A.,

restricted to using the harness provided to [him] by the 12, 14, 26, 41, 47.)

[USPS] which transfers the weight of the bag to the waist

rather than the shoulder.” (J.A., 13-14, 55, 75.) The USPS dismissed as untimely Mitchell’s EEO

Complaint, determining that Mitchell initiated contact with an

Mitchell alleges that he attempted to withdraw his transfer EEO counselor beyond the forty-five day period provided in

request based on Dr. Gilbert’s recommendation -- however, 29 C.F.R. 1614.105. (J.A., 12, 26, 45, 48-51.) Specifically,

Derrickson refused the withdrawal. (J.A., 174-75.) the USPS determined that Mitchell had not consulted with the

Derrickson denies that Mitchell submitted such a request. EEO counselor until sixty-six days after the alleged

(J.A., 80.) Mitchell’s transfer to the clerk position became discriminatory refusal to reinstate him as a mail carrier, and

effective August 30, 1997. (J.A., 14, 25, 80, 96.) sixty days after the effective date of his transfer to a clerk

position. (J.A., 45, 48-51.) Mitchell did not administratively

B. PROCEDURAL HISTORY appeal the USPS’s decision.

The EEO Proceedings

Mitchell contacted an Equal Employment Opportunity

(“EEO”) counselor on October 30, 1997 alleging that within 45 days of the effective date of the action.

Derrickson’s refusal to return him to his letter carrier position

constituted disability discrimination in violation of the FMLA (2) The agency or the Commission shall extend the 45-day

and the Disabled Veterans Act.2 (J.A., 11, 14, 25, 40, 42-46.) time limit in paragraph (a)(1) of this section when the

individual shows that he or she was not notified of the time

limits and was not otherwise aware of them, that he or she

did not know and reaso nably should not have been known

2 that the discriminatory matter or personnel action occurred,

Title twenty-nine of the Code of Federal Regulations, chapter

fourteen, part 1614, establishes an extensive dispute resolution process to that despite due diligence he or she was prevented by

address a federal employee’s charge of disc rimination. T his dispute circumstances beyond his or her control from contacting the

resolution system requires “a compla ining pa rty to pursue administrative counselor within the time limits, or for other reasons

relief prior to co urt action, thereby enco uraging mo re exped ient, less considered sufficient by the agency or the Comm ission.

formal, and less expensive resolution of disputes within the Federal

Governm ent and outside of court.” West v. Gibson, 527 U.S. 212, 218-19 29 C.F.R. § 16 14.105 (20 03).

(1999). In particular, 29 C.F.R. § 161 4.10 5 provides, in relevant part: 3

Tw enty-nine C.F.R . §16 14.1 06 p rovid es, in pertinent part:

(a) Aggrieved persons who believe they have been discriminated

against on the basis of race, color, religion, sex, national origin, (a) A comp laint must be filed with the agency that alleged ly

age or handicap must consult a Counselor prior to filing a discrim inated against the com plainant.

complaint in order to try to informally resolve the matter.

(b) A com plaint must be filed within 15 days of receipt of

(1) An aggrieved person must initiate contact with a the notice required by § 1614.105 (d), (e) or (f) [provisions

Counselor within 45 days of the date of the matter alleged regarding the completion of informal meetings with an EEO

to be discrimina tory or, in the case of personnel action, counselor].

No. 01-5571 Mitchell v. Chapman, et al. 9 10 Mitchell v. Chapman, et al. No. 01-5571

Mitchell I 42 U.S.C. §§ 2000a-2000h (1994); the FMLA; 42 U.S.C.

§ 1983; the Fourteenth Amendment to the United States

On November 17, 1998, Mitchell filed a complaint in the Constitution; and the Kentucky Civil Rights Act (“KCRA”),

United States District Court for the Eastern District of KY . REV . STAT . ANN . §§ 344.010-.990. See Mitchell v.

Kentucky against the USPS and the Postmaster General, Chapman (Mitchell II), No. 00-179 (E.D. Ky. filed May 15,

William Henderson (“Henderson”), alleging violations of the 2000), at (J.A., 6-22).

Rehabilitation Act of 1973, 29 U.S.C. §§ 700-796 (1994), and

the Americans With Disabilities Act of 1990 (“ADA”), 42 The defendants thereafter moved for the dismissal of the

U.S.C. §§ 12101-12213 (1994). See Mitchell v. Henderson complaint pursuant to FED . R. CIV . P. 12 (b)(1), (2), (3), and

(“Mitchell I”), No. 98-469 (E.D. Ky. filed Nov. 1, 1998), at (6), or in the alternative, for summary judgment pursuant to

(J.A., 97 - 104). Mitchell’s complaint sought relief predicated FED . R. CIV . P. 56 (b).4 In response, Mitchell conceded that

on two events: (1) the defendants’ purported refusal of his dismissal was proper as to all claims asserted against

request to return to letter carrier duties with the Henderson and all ADA claims. (J.A., 138-39, 143, 149.)

accommodation of a waist harness; and (2) his transfer to a The district court accordingly granted judgment in favor of

lesser-paying clerk’s position after requesting FMLA leave. the defendants on the conceded claims. (J.A., 28.)

Mitchell I, at (J.A., 97 - 104).

The district court further determined that the doctrine of

The district court granted summary judgment in favor of claim preclusion rendered its decision in Mitchell I as a bar to

the defendants, resting its determination on Mitchell’s failure Mitchell’s subsequent claims against the USPS, and all claims

to contact an EEO Counselor within forty-five days of the asserted against Chapman, Derrickson, and Nickles in their

allegedly discriminatory conduct. (J.A., 106-12.) official capacities. (J.A., 29-34.) The district court declined,

however, to invoke claim preclusion as to Mitchell’s

Resolution of the Grievance individual capacity claims. (J.A., 30-32.)

Several weeks later, on May 25, 1999, the Union and the The district court then considered the individual liability of

USPS settled Mitchell’s Step 3 Grievance. (J.A., 165.) The Chapman, Derrickson, and Nickles. The district court

terms of the settlement awarded Mitchell backpay during the concluded that neither Title VII, the Rehabilitation Act, nor

period that he served as a temporary clerk, as well as

additional sick / vacation leave. (J.A., 165.)

4

Rule 12 of the Federal Rules of C ivil Pro cedure provid es, in

Mitchell II pertine nt part:

Nearly a year later, Mitchell filed a complaint in the United If, on a motion asserting the defense numbered (6) to dismiss for

States District Court for the Eastern District of Kentucky failure of the pleading to state a claim upon which relief may be

against the USPS, Henderson, Chapman, Derrickson, and granted, matters outside of the pleading are presented to and not

Nickles, where he re-asserted violations of the Rehabilitation excluded by the court, the mo tion shall be treated as o ne for

summary judgment and disposed of as provide in Rule 56.

Act and the ADA, as well as alleged additional claims

pursuant to Title VII of the Civil Rights Act of 1964, as F ED . R. C IV . P. 12 (b)(6). As the district court considered a series of

amended by the Civil Rights Act of 1991 (“Title VII”), affidavits and exhibits attached to the mo tion, it con verted the mo tion to

one seeking summ ary jud gment.

No. 01-5571 Mitchell v. Chapman, et al. 11 12 Mitchell v. Chapman, et al. No. 01-5571

Kentucky law imposed individual liability for discriminatory IV. LAW AND ANALYSIS

conduct. (J.A., 35-36.) Consequently, the district court

entered judgment in favor of the defendants on said claims. A. Claim Preclusion

The district court also awarded judgment to the defendants Mitchell challenges the district court’s determination that

on Mitchell’s individual capacity FMLA claims. In so doing, the principles of claim preclusion, or res judicata,5 rendered

the district court rejected Mitchell’s contention that the statute the judgment in Mitchell I as a bar to Mitchell II. This Court

imposed individual liability on public employers. (J.A., 36- reviews the dismissal of a case on claim preclusion grounds

37.) de novo. See Kane v. Magna Mixer Co., 71 F.3d 555, 560

(6th Cir. 1995) (citing Black v. Ryder/P.I.E. Nationwide, Inc.,

The district court further awarded judgment to the 15 F.3d 573, 582 (6th Cir. 1994)).

defendants on Mitchell’s Section 1983 claims, reasoning:

(1) federal employees do not act “under color of state law” as Claim preclusion is the doctrine by which a final judgment

required by the statute; and (2) Mitchell failed to comply with on the merits in an action precludes a party from bringing a

the one-year statute of limitations for asserting Section 1983 subsequent lawsuit on the same claim or raising a new

claims. (J.A., 34-35.) Moreover, the district court held that defense to defeat a prior judgment. See Montana v. United

the Fourteenth Amendment was inapplicable to claims arising States, 440 U.S. 147, 153 (1979). It precludes not only

from actions of federal officials and employees. (J.A., 35.) relitigating a claim previously adjudicated; it also precludes

litigating a claim or defense that should have been raised, but

Accordingly, the district court granted the defendants’ was not, in the prior suit. See Stern v. Mascio, 200 F.3d 600,

motion for summary judgment. The instant appeal ensued. 608 (6th Cir.2001) (citing Gargallo v. Merrill Lynch, Pierce,

(J.A., 39.) Fenner & Smith, Inc., 918 F.2d 658, 660-61 (6th Cir.1990)).

Claim preclusion only arises, however, in the presence of the

III. STANDARD OF REVIEW following four elements: (1) where the prior decision was a

final decision on the merits; (2) where the present action is

This Court reviews a grant of summary judgment de novo. between the same parties or their privies as those to the prior

See Brooks v.American Broadcasting Cos., 932 F.2d 495, 500 action; (3) where the claim in a present action should have

(6th Cir. 1991). Summary judgment is proper “if the been litigated in the prior action; and (4) where an identity

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law.” 5

In Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75

FED . R. CIV . P. 56 (c). When confronted with a properly (1984), the United States Supreme Court expressed its preference for the

supported motion for summary judgment, the nonmoving use of the term “claim preclusion,” rather than the m ore traditiona lly

party must set forth specific facts showing that there is a utilized term “res judicata.” Migra, 465 U .S. at 77 n.1. Re s judicata

generally includes two separate concepts - claim preclusion and issue

genuine issue for trial. A genuine issue for trial exists “if the preclusion. Claim preclusion, o r true res judicata, refers to effect o f a

evidence is such that a reasonable jury could return a verdict prior judgme nt in foreclosing a subsequent claim that has never been

for the nonmoving party.” Anderson v. Liberty Lobby, Inc., litigated, because of a determination that it should have b een advanced in

477 U.S. 242, 248 (1986). an earlier action. Id. Issue preclusion, on the other hand, refers to the

foreclosure of an issue previously litigated. Id.

No. 01-5571 Mitchell v. Chapman, et al. 13 14 Mitchell v. Chapman, et al. No. 01-5571

exists between the prior and present actions. See Kane, 71 limitations;8(2) a dismissal on statute of limitations grounds

F.3d at 560. was an adjudication on the merits for claim preclusion

purposes;9 and (3) a dismissal of plaintiff’s claims for failure

Here, the central dispute involves the first three elements of to contact an EEO counselor therefore was a final decision on

claim preclusion - whether there was a final decision on the the merits for claim preclusion purposes. (J.A., 29-30.)

merits, whether the two actions were filed against the same

parties or their privies, and whether the claims in Mitchell II The district court’s analysis rests on sound legal authority.

should have been brought in Mitchell I.6 The Court shall It is well-established that a party’s exhaustion of

address each element in turn. administrative processes for filing a claim of discrimination

is a condition precedent to filing suit in the district court,

1. Decision on the Merits rather than a jurisdictional prerequisite. See Zipes v. Trans

World Airlines, Inc., 455 U.S. 385, 394 (1982) (holding that

The district court determined that its judgment in Mitchell I the administrative provisions requiring an employee to pursue

resting on Mitchell’s failure to fulfill a condition precedent to a charge of discrimination with the EEOC are conditions

suit -- specifically, Mitchell’s failure to pursue informal precedent to suit subject to waiver, tolling and estoppel); see

resolution with an EEO counselor within forty-five days of an also Irwin v. Dep’t of Veteran Affairs, 498 U.S. 89, 95 (1990)

alleged discriminatory act -- constituted a decision on the (extending Zipes to administrative requirements for federal

merits for claim preclusion purposes. In reaching this employees bringing suits against federal agencies). This

conclusion, the district court acknowledged the lack of Court has held that a federal employee’s administrative

precedent from this Court regarding whether a dismissal for obligation to consult with an EEO counselor within a

failing to fulfill a condition precedent is a decision on the particular time period is a precondition to filing suit subject

merits.7 (J.A., 29.) In the absence of controlling authority, to equitable tolling, waiver and estoppel. See Boddy, 821

the district court reasoned: (1) the deadline for consulting F.3d at 350 (citing Zipes, 455 U.S. 385). The distinction

with an EEO counselor was similar to a statute of between a jurisdictional prerequisite and a condition

precedent is of significant analytical import because a

dismissal for lack of subject matter jurisdiction is not a

dismissal on the merits for claim preclusion purposes. See

Rogers v. Stratton Indus., Inc., 798 F.2d 913, 916 (6th Cir.

6

Mitchell concedes the fourth eleme nt - whethe r there is an identity 1986) (“Normally, Rule 12(b)(6) judgments are dismissals on

between the claims asserted in Mitchell I and Mitchell II. Identity of the merits and Rule 12(b)(1) dismissals are not.”) (Citation

causes of action mea ns an “identity of the facts creating the right of action omitted).

and of the evidence necessary to sustain each action.” Westwood Chem.

Co. v. Kulick, 656 F.2d 1224, 1227 (6th Cir.1981). It is undisputed that

the com plaints in Mitchell I and Mitchell II allege identical facts, differing

only in the introductory paragraph s.

7

See Rivers v. Barberton Bd. of Educ., 143 F.3d 1029, 1032 (6th Cir. 8

1998) (“Rivers urges that a dismissal for failure to satisfy a condition Citing Boddy v. Dean, 821 F.2d 34 6, 350 (6th Cir. 1987).

precedent should not be considered an adjudication on the merits for 9

claim preclusion purposes . . . [W]e need not decide this question Citing Cemer v. Marathon Oil Co., 583 F.2d 83 0, 832 (6th Cir.

today.”). 1978).

No. 01-5571 Mitchell v. Chapman, et al. 15 16 Mitchell v. Chapman, et al. No. 01-5571

It further is well-established that conditions precedent are condition, and re-file the civil action.10 Therefore, not all

similar to statutes of limitations. See Truitt v. County of decisions finding that a plaintiff failed to fulfill a condition

Wayne, 148 F.3d 644, 646-47 (6th Cir. 1998) (“[W]e hold that precedent are readily comparable to a finding that a party

[an administrative condition precedent requiring a plaintiff to failed to comply with the statute of limitations.

file suit within ninety days of receiving a right to sue letter

from the EEOC] is not a jurisdictional requirement but, It is the potential overreaching of the district court’s

instead, is a timing requirement similar to a statute of reasoning that warrants an express limitation. This Court

limitations, subject to waiver, estoppel and equitable repeatedly has cautioned that a decision on the merits is one

tolling.”). Moreover, a dismissal for failing to comply with that signifies the “death knell” of the litigation. See Wilkins

a statute of limitations is a decision on the merits for claim v. Jakeway, 183 F.3d 528, 534 (6th Cir. 1999) (“[T]his is a

preclusion purposes. See Nathan v. Rowan, 651 F.2d 1223, death knell for Plaintiff’s [False Claims Act] claims against

1226 (6th Cir. 1981). Therefore, the district court did not the Defendants, in their individual capacities, and is

make an impermissible leap in analogizing a dismissal for essentially a decision on the merits.”); Rogers, 798 F.2d at

failing to fulfill a condition precedent to a dismissal arising 916 (“Where a statutory right is being pursued, however, and

from a failure to comply with the statute of limitations. the defense raised is that the plaintiff or defendant does not

come within the purview of the statute, the judicial

The limitations of the district court’s approach acceptance of this defense, . . . is the death knell of the

litigation and has the same effect as a dismissal on the

While the district court reached the correct conclusion -- merits.”). The underlying principle of this “death knell”

that is, a dismissal predicated on a federal employee’s failure language is that a dismissal on the merits is one that

to consult with an EEO counselor within forty-five days is a permanently forecloses a party from further advancing a claim

decision on the merits for claim preclusion purposes -- the or defense.

accuracy of district court’s rationale requires further

explanation. The specific condition precedent addressed by

the district court is readily akin to dismissal for failing to 10

For example, 29 C.F.R. § 161 4.40 7 (a) requires an aggrieved party

comply with a statute of limitations. In either context, to file suit within ninety days of receiving notice of the EEOC ’s final

whether the plaintiff fails to consult with the EEO counselor action or dismissal of a com plaint. W hen the adm inistrative p rocess is

within forty-five days of the discriminatory event, or whether complete, the EE OC issues to the aggrieved party a “right to sue letter”

and the party thereafter has ninety days in which to file a civil ac tion. See

the plaintiff fails to file suit within the statutorily prescribed 29 C.F.R. § 1614.109. Where the plaintiff files suit prior to receiving the

period, the party is permanently foreclosed from meeting the right to sue letter, the district court is compelled to d ismiss the premature

condition or statutory requirement. Simply, the party is action for failure to exhaust administrative remedies. See Graham-

unable to rewind the clock, fulfill the condition / file the Hum phreys v. Mem phis Bro oks M useum of Art, Inc., 209 F.3d 552, 560

action within the requisite time period, and proceed to an (6th Cir. 2000). It is well-settled that the ninety day right to sue provision

is an administrative condition precedent, rather than a jurisdictional

adjudication of his or her claim. However, there are certain prerequisite. See Truitt, 148 F.3d at 646-47. Consequently, the court

condition precedents where, although the party may not have should dismiss the action pursuant to Rule 12 (b)(6), for failure to state a

fulfilled the condition prior to filing suit in the district court, claim, rather than Rule 12 (b)(1), for lack of subject matter jurisdiction.

he or she may return to the administrative process, fulfill the Under the district court’s analysis, such a dismissal would be on the

merits for claim preclusion purpo ses, notwithstanding the aggrieved

party’s ability to return to the administrative process, await a right to sue

letter, and subsequently re-file the action.

No. 01-5571 Mitchell v. Chapman, et al. 17 18 Mitchell v. Chapman, et al. No. 01-5571

Here, the district court’s determination that Mitchell failed precedent. As discussed supra, there is a significant

to meet with an EEO counselor within the requisite time distinction between a dismissal for a failure to fulfill a

period permanently foreclosed Mitchell’s Rehabilitation Act jurisdictional prerequisite and a dismissal for a failure to

claim. Mitchell could not, and will forever remain unable, to fulfill a condition precedent. As such, Wilkins is inapposite

meet with an EEO counselor within forty-five days of the to the matter sub judice.

discriminatory act as required by 29 C.F.R. § 1614.105.

However, not all dismissals for failing to meet a condition The instant appeal falls squarely within this Court’s

precedent will have this permanently barring effect. precedent establishing that a decision on the merits is one that

Therefore, a dismissal for failing to file a condition precedent permanently forecloses a party from advancing a claim or

is a decision on the merits only if the aggrieved party is defense. As Mitchell I permanently foreclosed Mitchell

permanently foreclosed from fulfilling the condition. As from asserting claims pursuant to the Rehabilitation Act as a

Mitchell was permanently foreclosed from fulfilling the result of Mitchell’s failure to meet with an EEOC counselor

requirements of 29 C.F.R. § 1614.105, the district court during the requisite period, the dismissal was a decision on

correctly determined that its decision in Mitchell I was a the merits for claim preclusion purposes.

decision on the merits.

2. Same Parties or Privies

Mitchell nevertheless asserts that as the judgment in

Mitchell I was not one on the merits because the district court The second element of claim preclusion operates to bar

relied on a “technicality” (Final Br. of Appellant, at 14) and, successive claims among the same parties or their privies.

or, a “procedural defect” (Final Br. of Appellant, at 15). In The district court expressly determined that its decision in

support of his contention, Mitchell relies on Wilkins,183 F.3d Mitchell I barred all claims against the USPS because the

528, where a prior panel of this Court stated: “[A]lthough the USPS was a named party to the prior action. (J.A., 30-31.)

district court’s dismissal was framed in terms of a Rule 12 Similarly, the district court determined that its judgment in

(b)(6) dismissal on the merits, in actuality, the court’s Mitchell I barred all claims alleged against Chapman,

determination that the individual defendants were not Derrickson, and Nickles in their official capacities because a

‘employers’ under the [False Claims Act] was jurisdictional suit against a public employee in his or her official capacity

because it did not go to the merits of Plaintiff’s suit.” Wilkins, is a suit against the agency itself. (J.A., 30-31); see also

183 F.3d at 534. Kentucky v. Graham, 473 U.S. 159 (1985); Monell v. Dep’t.

of Social Servs., 436 U.S. 658, 690 n. 55 (1978). Neither

Mitchell erroneously interprets the foregoing statements as party disputes the district court’s determinations in these

requiring a judgment to reach the merits of a particular claim respects.

in order to have a preclusive effect. The patent deficiency in

Mitchell’s assertion, as demonstrated supra, is that dismissals The Appellees’ attempt to extend claim preclusion to

for failing to comply with “technicalities” such as a statute of Mitchell’s individual capacity claims

limitations constitute decisions on the merits. Moreover,

Mitchell misplaces his reliance on Wilkins as there the Court The Appellees nevertheless urge this Court to extend the

addressed the preclusive effect of a judgment in the context of preclusive effect of Mitchell I to the individual capacity

a party’s failure to establish a jurisdictional prerequisite. In claims asserted against Chapman, Derrickson, and Nickles.

contrast, Mitchell I addressed a failure to fulfill a condition (Final Br. of Appellees, at 23-31.) In support of their

No. 01-5571 Mitchell v. Chapman, et al. 19 20 Mitchell v. Chapman, et al. No. 01-5571

contention, the Appellees initially assert that the district court immunity extends only to a very limited class of officials,

erred in construing the complaint in Mitchell II as alleging “including the President of the United States, legislators

individual capacity claims. (J.A., 27-30.) carrying out their legislative functions, and judges carrying

out their judicial functions.” Hafer, 502 U.S. at 28. As most

In Moore v. City of Harriman, 272 F.3d 769 (6th Cir. public employees, including the Appellees, do not fall into

2001), this Court stated “while it is clearly preferable that this narrow class of officials, acts taken in the course of their

plaintiffs explicitly state whether a defendant is sued in his or official duties may serve as the basis for individual liability

her ‘individual capacity,’ failure to do so is not fatal if the claims.11 Therefore, the Appellees’ argument is without

course of proceedings otherwise indicates that the defendant merit.

received sufficient notice.” Id. (Internal citation and

quotation marks omitted). Harriman’s “course of the The Appellees alternatively assert that the judgment in

proceedings” test examines “the nature of the plaintiff’s Mitchell I precludes the individual capacity claims because

claims, requests for compensatory or punitive damages, and Chapman, Derrickson, and Nickles were in privity with the

the nature of any defenses raised in response to the complaint, USPS. (J.A., 22-27.) In the context of claim preclusion,

particularly claims of qualified immunity, to determine “privity . . . means a successor in interest to the party, one

whether the defendant had actual knowledge of the potential who controlled the earlier action, or one whose interests were

for individual liability.” Harriman, 272 F.3d at 772 n.1 adequately represented.” Sanders Confectionery Prods., Inc.

(citations omitted). v. Heller, 973 F.2d 474, 481 (6th Cir. 1992). The Appellees

fail to acknowledge, however, that the rule of differing

The Appellees acknowledge that the caption of the capacities provides that “[a] party appearing in an action in

complaint identifies Chapman, Derrickson, and Nickles as one capacity, individual or representative, is not thereby

subject to suit in their official and individual capacities. (J.A., bound by or entitled to the benefits of the rules of res judicata

27-30.) The Appellees contend, however, that the allegations in a subsequent action in which he appears in another

of the complaint demonstrate that all of the alleged conduct capacity.” RESTATEMENT SECOND OF JUDGMENTS § 36(2)

committed by Chapman, Derrickson, and Nickles occurred (1982). The rule of differing capacities generally operates to

while the defendants acted in their official capacities as postal allow a subsequent individual capacity suit against a

service employees. (J.A., 27-30.) Consequently, the governmental official even where a prior suit alleged an

Appellees argue that this “official conduct” cannot give rise official capacity claim against the same official. See

to individual liability claims. Wilkins,183 F.3d at 534-35 (recognizing the distinction

between individual and official capacity claims and applying

In Hafer v. Melo, 502 U.S. 21 (1991), the United States the rule of differing capacities -- albeit without explicitly

Supreme Court rejected the argument advanced by the referring to the rule); see also Warnock v. Pecos County, 116

Appellees that “officials may not be held liable in their

personal capacity for actions they take in their official

capacity.” Hafer, 502 at 27. The Court reasoned that such a 11

In addition, the un ique waiver o f sovereign immunity applicable

theory “would absolutely immunize state officials from to actions against the USPS allows for official capacity claims against

personal liability for acts within their authority and necessary USP S emp loyees. See 39 U.S.C. § 40 1 (“The Po stal Service shall have

to fulfilling governmental responsibilities.” Hafer, 502 U.S. the following general powers - (1) to sue and be sued in its official

at 28. The Court further reasoned that such absolute name.”). Therefore, USPS employees are not cloaked with absolute

immunity for their actions.

No. 01-5571 Mitchell v. Chapman, et al. 21 22 Mitchell v. Chapman, et al. No. 01-5571

F.3d 776 (5th Cir. 1997) (holding that a prior suit against a Indeed, Mitchell expressly alleged disability discrimination12

municipality does not bar a later suit against local officials in and violations of the FMLA in both his Grievance and his

their individual capacity); Conner v. Reinhard, 847 F.2d 384, EEO charge filed prior to Mitchell I. (J.A., 42, 160.)

395 (7th Cir.) (holding that a prior suit against a municipality

does not bar a subsequent suit against officials individually In an effort to explain his failure to assert all of his potential

because official capacity and personal capacity suits involve claims, Mitchell alleges he refrained from filing a FMLA

different legal theories and defenses), cert. denied, 488 U.S. action in Mitchell I because that claim was the subject of the

856, 109 S. Ct. 147, 102 L. Ed. 2d 118 (1988); Headley v. Grievance.13 As the district court noted, Mitchell fails to cite

Bacon, 828 F.2d 1272, 1277-79 (8th Cir. 1987) any provision of the CBA requiring him to submit FMLA

(distinguishing privity between principal and agent from claims to binding arbitration prior to initiating a civil action.

privity between a governmental entity and officials sued in (J.A., 33.) Assuming arguendo, that the CBA mandates

their individual capacities). See also Howell Hydrocarbons, binding arbitration, it is well-established that the CBA must

Inc. v. Adams, 897 F.2d 183, 188 (5th Cir.1990) (“Res contain a “clear and unmistakable waiver” of Mitchell’s

judicata does not apply when the parties appear in one action FMLA rights to foreclose his entitlement to a judicial forum.

in a representative capacity and in a subsequent action in an See Bratten v. SSI Servs., Inc., 185 F.3d 625, 631-632 (6th

individual capacity.”). Cir. 1999) (citing Wright v. Universal Maritime Serv. Corp.,

525 U.S. 70, 82 (1998)); Plumley v. Southern Container, Inc.,

The rule of differing capacities therefore enables Mitchell 303 F.3d 364 (1st Cir. 2002) (applying the “clear and

to assert individual capacity claims against Chapman, unmistakable” waiver standard to FMLA claims); Rogers v.

Derrickson, and Nickles. New York University, 220 F.3d 73 (2d Cir. 2000) (same).

Mitchell fails to demonstrate any provision of the CBA

3. Was Or Should Have Been Litigated In The Prior containing a clear and unmistakable waiver of his statutory

Action claims. Consequently, Mitchell fails to provide a sufficient

justification for failing to file his statutory claims.14

The central purpose of claim preclusion is to prevent the

“relitigating of issues that were or could have been raised in

[a prior] action.” Federated Dep’t Stores, Inc., v. Moitie, 452 12

Mitchell brought his Title VII claim on the basis of disability

U.S. 394, 398 (1981). The district court determined that discrimination. Und er T itle VII, it is unlawful for an em ployer to

Mitchell could have brought his Title VII, FMLA, 42 U.S.C. discharge or otherwise discriminate against an individual with resp ect “to

§ 1983, Fourteenth Amendment, and KCRA claims in compensation, terms, conditions or privileges of employment on the basis

of the individual’s race, color, religion, sex or national origin.” See 42

Mitchell I. The record supports the district court’s finding. U.S.C. § 2000e-2(a). Title VII does not address disability discrimination.

It is undisputed that Mitchell was aware of all of the facts 13

Mitchell provides no explanation as to his failure to assert the other

giving rise to his claims at the time he filed Mitchell I. claims alleged in Mitchell II.

14

It must be acknowledged, however, that the stringent timing

requirements of 29 C.F.R. § 16 14.1 01, et seq., present potential perils for

a party alleging multiple claims in separate administrative fora. Here,

Mitchell was required to file Mitchell I within ninety days of his receipt

of the right to sue letter, dated August 19, 19 99. A dmittedly, Mitchell’s

No. 01-5571 Mitchell v. Chapman, et al. 23 24 Mitchell v. Chapman, et al. No. 01-5571

4. Conclusions regarding claim preclusion B. Mitchell’s 42 U.S.C. § 1983 and Fourteenth

Amendment Claims

The doctrine of claim preclusion thereby renders the district

court’s judgment in Mitchell I as a bar to the claims asserted Mitchell asserts that the district court should have

against the USPS, as well as the claims alleged against considered his 42 U.S.C. § 1983 and Fourteenth Amendment

Chapman, Derrickson, and Nickles in their official capacities. claims in light of Bivens, 403 U.S. 388.

Claim preclusion does not, however, extend to the individual

capacity claims asserted against Chapman, Derrickson, and Mitchell’s argument requires little analysis. In Bivens, the

Nickles because of the rule of differing capacities. As the Supreme Court recognized a right to recover damages against

district court correctly noted, Mitchell was not barred from federal officials who violate an individual’s constitutional

arguing the merits of his individual capacity claims alleged rights. See Bivens, 403 U.S. at 395. Mitchell did not allege

pursuant to Title VII, the Rehabilitation Act, the KCRA, the a Bivens claim in Mitchell II; rather, he averred claims

FMLA, 42 U.S.C. § 1983, and the Fourteenth Amendment.15 pursuant to Section 1983. There lacks any authority in

support of Mitchell’s blanket proposition that a court must

convert a Section 1983 claim asserted against federal officials

to one asserting Bivens violations. Assuming arguendo, that

this Court were to place such a requirement on the district

courts, Mitchell’s claim nevertheless fails. Bivens claims

have a one year statute of limitations under Kentucky law. See

McSurely v. Hutchinson, 823 F.2d 1002 (6th Cir. 1987). As

the district court acknowledged, Mitchell filed his Section

FMLA Grievance was pending in Step 3 of the grievance procedure

1983 claim (or the purported Bivens action) nearly three years

during this period. The appropriate course of action in this scenario was past the limitations period. (J.A., 34.)

for Mitchell to timely file his civil action, alert the district court as to the

pendency of the FM LA G rievance, and request a stay of the judicial Furthermore, it is well-settled that USPS employees may

proceedings while awaiting the resolution of the grievance. See Church ill not allege Bivens claims arising out of their employment

v. Star En ters., 183 F.3d 184, 192 (3d Cir. 1999) (“Attorneys sho uld relationship with the USPS. See Harper v. Frank, 985 F.2d

organize litigation that they are pursuing to avoid claim preclusion.”).

Up on resolution of the grievance, M itchell could req uest the court to lift

285, 290 (6th Cir. 1993). See also Turner v. Holbrook, 278

the stay and seek leave to amend his complaint in order to allege the F.3d 754 (8th Cir. 2002); Pipkin v. United States Postal

FMLA action. To do otherwise, creates the very risk presented herein of Serv., 951 F.2d 272, 275 (10th Cir. 1991). Consequently,

obtaining a partial, yet preclusive , judgm ent. Mitchell’s purported Bivens claim fails as a matter of law.

15

Mitchell wisely fails to p resent any argu ment on ap peal with C. FMLA Individual Liability for Public Agency

respect to his T itle VII, the Re habilitation Act, or K CRA claim s. See Employers

Wathen, 115 F.3d at 404-05 n.6 (6th Cir. 1997) (reaffirming that Title VII

does not provide for individual liability and the K CRA does no t impose

individual liability); Hiller v. Brown, 177 F.3d 542 ( 6th Cir. 1999)

Mitchell’s final assertion on appeal is that the district court

(holding that the Rehabilitation Act does not impose individual liability). erroneously interpreted the FMLA as to preclude individual

Consequently, these claims are considered abandoned for the purposes of liability claims against public agency employers. The issue

app eal. See Enertech v. Mahoning County Comm’rs, 85 F .3d 2 57 (6th of whether the FMLA provides for individual liability against

Cir. 19 96).

No. 01-5571 Mitchell v. Chapman, et al. 25 26 Mitchell v. Chapman, et al. No. 01-5571

a public employer is a matter of first impression for this The FMLA expressly incorporates into its provisions the

Court. Fair Labor Standards Act’s (“FLSA”), 29 U.S.C. §§ 201-219

(1994), definition of “employee.” See 29 U.S.C. § 2611(3)

“Under accepted canons of statutory interpretation, we must (“The terms ‘employ’, ‘employee’, and ‘State’ have the same

interpret statutes as a whole, giving effect to each word and meanings given such terms in subsections (c), (e), and (g) of

making every effort not to interpret a provision in a manner section 203 of this title [the FLSA].”). The FLSA defines

that renders other provisions of the same statute inconsistent, employee as “any individual employed by an employer” and

meaningless or superfluous.” See Lake Cumberland Trust, includes “any individual employed by the United States

Inc. v. United States Environmental Protection Agency, 954 Postal Service.” 29 U.S.C. § 203 (e)(1) & (2)(B). An

F.2d 1218, 1222 (6th Cir. 1992) (citation omitted). The plain “eligible employee” under the FMLA is an “employee” who

meaning of the statute controls, except in rare cases in which “has been employed for at least 12 months by the employer

the literal application of the statutory language would compel with respect to whom leave is requested . . . ; and for at least

an odd result or produce a result demonstrably at odds with 1,250 hours of service with such employer during the

legislative intent. See Public Citizen v. United States Dep’t previous 12-month period.” 29 U.S.C. § 2611(2)(A).

of Justice, 491 U.S. 440 (1989). We must begin with the

statute’s plain language, and may resort to a review of The FMLA defines “employer” as follows:

congressional intent or legislative history only when the

language of the statute is not clear. See In re Comshare, Inc., (4) Employer

183 F.3d 542, 549 (6th Cir. 1999) (citing Consumer Prod.

Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (A) In general

(1980)).

The term “employer” –

Turning to the statute, the FMLA entitles “eligible

employees” to take up to twelve weeks of unpaid leave in any (i) means any person engaged in commerce or in any

twelve-month period for qualifying medical or family industry or activity affecting commerce who employs 50

reasons. See 29 U.S.C. § 2612(a)(1). The statute ensures or more employees for each working day during each of

that the employee will be restored to the same or an 20 or more calendar workweeks in the current or

equivalent position upon returning to work. See 29 U.S.C. proceeding calendar year;

§ 2614(a)(1).

(ii) includes --

The statute creates a private right of action entitling

“eligible employees” to seek both equitable relief and money (I) any person who acts, directly or indirectly, in the

damages “against any employer (including a public agency) interest of an employer to any employees of such

in any Federal or State court of competent jurisdiction,” 29 employer; and

U.S.C. § 2617(a)(2), should that employer “interfere with, (II) any successor in interest of the employer;

restrain, or deny the exercise of” FMLA rights, 29 U.S.C.

§ 2615(a)(1). (iii) includes any “public agency”, as defined in

section 203(x) of this title; and

No. 01-5571 Mitchell v. Chapman, et al. 27 28 Mitchell v. Chapman, et al. No. 01-5571

(iv) includes the General Accounting Office and the definition of “employer” in section 3(d) of the Fair

Library of Congress. Labor Standards Act (FLSA), 29 U.S.C. 203(d), similarly

includes any person acting directly or indirectly in the

(B) Public agency. interest of an employer in relation to an employee. As

under the FLSA, individuals such as corporate officers

For purposes of subparagraph (A) (iii), a public agency “acting in the interest of an employer” are individually

shall be considered to be a person engaged in commerce or liable for any violations of the requirements of the

in an industry or activity affecting commerce. FMLA.

29 U.S.C. § 2611.16 29 C.F.R. § 825.104 (d);17see also Chandler v. Specialty

Tires of Am., 283 F.3d 818, 827 (6th Cir. 2002) (recognizing

The issue of whether the FMLA imposes individual that the provisions of the FMLA generally mirror those

liability turns on an interpretation of the term “employer.” Of provided in the FLSA) (citation omitted). This Court has

particular pertinence, the FMLA defines an “employer,” in interpreted the FLSA’s “any person who acts, directly or

part, as “any person who acts, directly or indirectly, in the indirectly, in the interest of the employer” language to impose

interest of the employer.” 29 U.S.C. § 2611(4)(A)(ii)(I). This individual liability on private-sector employers. See United

language mirrors the FLSA’s definition of employer. States Dep’t of Labor v. Cole Enters., Inc., 63 F.3d 775 (6th

Compare 29 U.S.C. § 2611(4)(A)(ii)(I) with 29 U.S.C. Cir. 1995); Fegley v. Higgins, 19 F.3d 1126 (6th Cir. 1994).

§ 203(d) (“Employer includes any person acting directly or The presence of identical language in the FMLA tends to

indirectly in the interest of any employer in relation to an support a similar finding. See Darby v. Bratch, 287 F.3d 673,

employee and includes a public agency, but does not include 681 (8th Cir. 2002) (comparing the FMLA and FLSA

a labor agency . . . .”). This is not a coincidence. The definitions of “employer” and determining that each statute

applicable regulations indicate: imposes individual liability); see also Cantley v. Simmons,

179 F. Supp. 2d 654, 655-58 (S.D. W. Va. 2002)

An “employer” [under the FMLA] includes any person (“[I]ndividual liability is permitted under the FMLA.”);

who acts directly or indirectly in the interest of an Brunelle v. Cyro Indus., 225 F. Supp. 2d 67, 82 (D. Me. 2002)

employer to any of the employer’s employees. The (holding that individual liability under the FMLA arises from

a similar definition of employer under the FLSA); Richardson

v. CVS Corp., 207 F. Supp. 2d 733, 741-44 (E.D. Tenn. 2001)

16

The FMLA again borrows from FLSA for its definition of “public (finding that the majority of the courts have found “that

agency.” Title 2 9 U .S.C. § 20 3(x), which is referenced in the FM LA’s

definition of “employer,” provides the following definition of “public

agency”: 17

(x) “Public Agency” means the Government of the United The Secretary of Labor has the authority to issue regulations

States; the government of a State or political subdivision pertaining to the FMLA. See 29 U.S.C. § 265 4. Genera lly, we defer to

thereo f; any agency of the United States (including the the regulations when determining how to interpret a statute, as long as the

United States Postal Service and Postal Rate Comm ission), regulations present a reasonable interpretation of the statute. See Intermet

a State, or a po litical subdivision of a State; or any Corp. & Subsidiaries v. Comm issioner, 209 F.3d 901, 904 (6th Cir. 2000).

interstate governmental agency. That is, the regulation must “implement the congressiona l mandate in

some reasonable manner.” Un ited States v. C orrell, 389 U.S. 299, 307

29 U.S.C. § 20 3 (x). (1967).

No. 01-5571 Mitchell v. Chapman, et al. 29 30 Mitchell v. Chapman, et al. No. 01-5571

individuals can be subject to liability under the FMLA”); N.Y. 1996) (holding that “employer” in the FMLA mirrors

Morrow v. Putnam, 142 F. Supp. 2d 1271, 1275-76 (D. Nev. that used in the FLSA which imposes individual liability);

2001) (holding that individual liability exists under the Freemon v. Foley, 911 F. Supp. 326 (N.D. Ill. 1991) (same).18

FMLA); Longstreth v. Copple, 101 F. Supp. 2d 776, 780

(N.D. Iowa) (same); Carter v. Refrigeration Sales Corp., 49 However, the narrow issue before this Court is whether the

F. Supp. 2d 1028, 1030 (N.D. Ohio 1999) (recognizing that FMLA imposes individual liability on public agency

the majority of courts extend individual liability in FMLA employers. The FMLA’s definition of “employer” segregates

claims); Meara v. Bennett, 27 F. Supp. 2d 288, 290 (D. Mass. the specific provision regarding individual liability (i.e., the

1998) (“Although the court has not been able to locate any “directly or indirectly” clause), see 29 U.S.C.

Court of Appeals decisions addressing the issue of individual § 2611(4)(A)(ii)(I) (hereinafter the “individual liability

liability under the recently enacted FMLA, the decisional law provision”), from the specific provision addressing “public

developing at the district court level appears to favor agency” employers, see 29 U.S.C. § 2611(4)(A)(iii)

individual liability.”); Bryant v. Delbar Prods., Inc., 18 F. (hereinafter the “public agency provision”). The Court of

Supp. 2d 799, 807-09 (M.D. Tenn. 1998) (noting that “the Appeals for the Eighth Circuit has determined that this

majority of courts have determined that the FMLA extends separation is of little interpretative import, noting that it did

individual liability to those who control a plaintiff’s ability to not see “‘why public officials should be exempted from

take a leave of absence”); Mercer v. Borden, 11 F. Supp. 2d liability while managers in the private sector are not.’”

1190, 1190 (C.D. Cal. 1998) (“Since the definition of Darby, 287 F.3d at 681 (quoting Morrow, 142 F. Supp. 2d at

‘employer’ in the FMLA is identical to the definition of 1275). In contrast, the Court of Appeals for the Eleventh

‘employer’ in the [Fair Labor Standards Act], the Court holds Circuit has determined that the FMLA does not impose

that individuals are potentially subject to liability under the individual liability on employees of public agencies. See

FMLA. The plain language of the FMLA compels this Wascura v. Carver, 169 F.3d at 683, 686 (11th Cir. 1999).

result.”); Rupnow v. TRC, Inc., 999 F. Supp. 1047, 1048

(N.D. Ohio 1998) (“[T]he weight of authority favors Notwithstanding the guidance from these decisions, we

individual liability for a supervisor where the ‘supervisor respectfully note that neither Darby nor Wascura attempt a

exercise[s] sufficient control over the plaintiff’s ability to take textual analysis of the FMLA. The court in Darby limited its

protected leave.’”); Stubl v. T.A. Systems, Inc., 984 F. Supp. reasoning to the general proposition that public and private

1075, 1083 (E.D. Mich. 1997) (“Although reasonable employers should not be treated separately under the statute.

arguments could be made that the policy rationale underlying See Darby, 287 F.3d at 681. The Wascura court concluded

the Title VII decisions finding no individual liability should that it was constrained by a prior decision of that court that

dictate the same result under the FMLA, the plain language of did not extend individual liability under the FLSA to public

the statute and the regulations mandate otherwise.”); Waters agency employers. See Wascura, 169 F.3d at 686 (citing

v. Baldwin County, 936 F. Supp. 860, 863 (S.D. Ala. 1996) Welch v. Laney, 57 F.3d 1004 (11th Cir. 1995)). By

(finding that “employer” as used in the FMLA parallels

“employer” in the FLSA; therefore, individual liability exists 18

under the FMLA); Knussman v. Maryland, 935 F. Supp. 659, But see Carter v. Uniform Rental Serv. Of Culpepper, Inc., 977 F.

664 (D. Md. 1996) (“Liability of individual defendants in Supp. 753, 759 (W.D . Va. 1997) (following Title VII case law and finding

no individua l liability under the FMLA); Frizzel v. Southwest Motor

their individual capacities is not foreclosed under the Freight, Inc., 906 F. Supp . 441 (E.D. T enn. 1995) (analogizing the FMLA

FMLA.”); Johnson v. A.P. Prod., Ltd., 934 F. Supp. 625 (S.D. to Title VII and rejecting individual liability under the FMLA ).

No. 01-5571 Mitchell v. Chapman, et al. 31 32 Mitchell v. Chapman, et al. No. 01-5571

addressing the issue in terms of the FLSA, the Eleventh “employer.”20 Therefore, the plain text of the statute provides

Circuit avoided the potential interpretive dilemma posed in 29 the following definition of “employer”:

U.S.C. § 2611(4).

(1) An employer means any person engaged in

Similarly, the district courts have resolved the issue with commerce or in any industry or activity affecting

conflicting results. See Morrow, 142 F. Supp. 2d at 1273 commerce who employs 50 or more employees for each

(allowing FMLA suit against individual postal supervisors); working day during each of the 20 or more calendar

Keene, 127 F. Supp. 2d at 776 (holding no governmental workweeks in the current or proceeding calendar year.

individual liability under the FMLA); Klivitis v. County of See 29 U.S.C. § 2611 (4)(A)(i).

Luzerne, 52 F. Supp. 2d 403, 412 (allowing FMLA suit

against district justice in individual capacity); Meara, 27 F. (2) An employer includes any person who acts directly

Supp. 2d at 291 (allowing FMLA suit against the district or indirectly in the interest of an employer to any of the

attorney in his individual capacity); Knussman, 935 F. Supp. employees of such employer; and an employer includes

at 664 (allowing FMLA individual capacity suit against any successor in interest of an employer. See 29 U.S.C.

officers in state highway patrol); Freemon, 911 F. Supp. at § 2611 (4)(A)(ii).

330-31 (allowing FMLA supervisory liability claim against

state hospital employee); Frizzell, 906 F. Supp. at 449 (3) An employer includes any “public agency” as that

(determining no supervisory liability for public officials under term is defined in the FLSA. See 29 U.S.C. § 2611

the FMLA). (4)(A)(iii).

Our independent examination of the FMLA’s text and (4) An employer includes the General Accounting Office

structure reveals that the statute does not impose individual and the Library of Congress.21 See 29 U.S.C. § 2611

liability on public agency employers. Three factors compel (4)(A)(iv).

this conclusion.

The relationship between “employer” and clauses (i) -(iv)

First, the section defining “employer,” 29 U.S.C. is not in contention. Rather, it is the purported

§ 2611(4)(A), explicitly separates the individual liability interrelationship among clauses (i)-(iv) that yields conflicting

provision and public agency provision into two distinct views regarding whether the FMLA imposes individual

clauses. Section 2611(4)(A)19 commences with “‘The term liability on public agency employers. Compare Keene, 127

employer -- ’”, and follows with four clauses addressing what F. Supp. 2d at 775 (explaining that Congress separated the

the term “employer” “means” and “includes.” See 29 U.S.C.

§ 2611(4)(A). The use of an em dash following “employer”

indicates that clauses (i), (ii), (iii), and (iv) modify the term 20

Througho ut the FM LA, the use of the em dash indicates that the

provisions following the em dash mod ify the immediately preceding

provision or term. See, e.g., 29 U.S.C. § 260 1(a) & (b); § 2611 (2)(A) &

(B), (6), (11), (12); § 2612 (b)(2),(e)(2), (f);§ 2613(b); § 261 4(a), (c)(2),

(3); § 261 5(b); § 26 17; § 261 8; § 2 632 .

19 21

All further citations to “Section” shall refe r to Title 29 of the Congress added Section 261 1(4)(A)(iv) several years following the

United States Code. enactment o f the FM LA. See Pub.L. 104-1, § 20 2(c)(1)(A) (1995).

No. 01-5571 Mitchell v. Chapman, et al. 33 34 Mitchell v. Chapman, et al. No. 01-5571

individual liability provision from the public agency employer “means” what is included in clause (i) and

provision in an effort to clarify the “commingling” of public “includes” what is provided in clauses (ii), (iii), and (iv). On

agency and private employers evident in the FLSA) with the other hand, the commingling of clauses (i)-(iv) into the

Morrow, 142 F. Supp. 2d at 1273 (interpreting the individual term “employer” yields an interpretation that renders other

liability provision and public agency provision as inter- provisions of the statute superfluous, as well as creates

related.) An examination of Section 2611(4)(A)’s text and several oddities.

structure demonstrates that the individual liability provision

and public agency provision are separate and distinct. Initially, an interpretation that commingles clauses (i) and

(ii) into the definition of employer presents little difficulty.

As noted earlier, the FMLA introduces related provisions For instance: “The term employer means any person engaged

through the use of the em dash. In accordance with this in interstate commerce . . . who employees 50 or more

practice, Section 2611(4)(A) implements the em dash into its employees . . .; and includes any person who acts directly or

definition of employer. See 29 U.S.C. § 2611(4)(A). indirectly in the interest of any person engaged in interstate

Similarly, Section 2611(4)(A)(ii) utilizes the em dash to commerce who employs 50 or more employees . . . ; and any

establish a relationship between the individual liability successor in interest of any person engaged in interstate

provision and the provision addressing successors in interest. commerce . . . who employs fifty or more employees . . . .”22

See 29 U.S.C. § 2611(4)(A)(ii). Notwithstanding this See 29 U.S.C. § 2611(4)(A)(i) & (ii). However, when the

repeated and consistent use of the em dash, Section public agency provision is introduced into an interpretation

2611(4)(A) lacks any punctuation demonstrating an inter- with clauses (i) and (ii), the statute provides -- “the term

relationship between clauses (ii)-(iv). Indeed, the separation employer means any person engaged in interstate commerce

of otherwise related concepts (i.e., what the term “employer” . . . who employees 50 or more employees . . .; and includes

“includes”) into distinctly enumerated clauses compels an any person who acts directly or indirectly in the interest of

interpretation that treats each clause in an independent any person engaged in interstate commerce . . .who employs

manner. This is particularly the case in light of clause (ii)’s 50 or more employees . . . ; and any successor in interest of

inclusion of an em dash preceding the individual liability any person engaged in interstate commerce . . . who employs

provision and successor in interest provision. See 29 U.S.C. fifty or more employees; and includes any public agency

§ 2611 (4)(A)(ii). It stands to reason that if clauses (ii) - (iv) engaged in interstate commerce . . . who employs 50 or more

are similarly inter-related, the text of the statute would employees . . .; and includes any person who acts directly or

likewise provide punctuation or analogous language linking indirectly, in the interest of the public agency engaged in

the clauses. In the absence of such guidance, and in interstate commerce . . . who employs fifty or more

accordance with the plain text’s separation of the clauses into employees; and any successor in interest of the public agency

distinct provisions, the structure of Section 2611(4)(A) . . .engaged in interstate commerce . . . who employs fifty or

patently demonstrates that the individual liability provision more employees . . . .” See 29 U.S.C. 2611(4)(A)(i),(ii), &

and public agency provision are separate and distinct. (iii).

The text of Section 2611(4)(A) further compels an

interpretation that separates the individual liability provision

from the public agency provision. The straightforward 22

This interpretation underlies our prior determination that the

interpretation advanced supra, demonstrates that the term FM LA extends individ ual liability to p rivate-sector emplo yers.

No. 01-5571 Mitchell v. Chapman, et al. 35 36 Mitchell v. Chapman, et al. No. 01-5571

Beyond the obvious redundancy in this interpretation, the public agencies in general,24 it is an exercise in absurdity to

commingling of clause (i) and (ii) with the public agency consider that the FMLA sought to protect employees of two

provision renders superfluous Section 2611(4)(B). See 29 long-standing federal entities from threats posed by any future

U.S.C. 2611(4)(B) (“[A] public agency shall be considered to successors in interest.25 Accordingly, we must reject an

be a person engaged in commerce or in an industry or activity interpretation that creates such a result. See Lake

affecting commerce.”). In addition, it is well-settled that a Cumberland Trust, 954 F.2d at 1222.

public agency does not have to meet the 50 employee

requirement to be considered an employer under the statute. A third factor also undermines an interpretation of

See 29 C.F.R. § 825.104(a) (“Public agencies are covered employer that extends the individual liability provision to

employers without regard to the number of employees public agencies. A definition of employer that incorporates

employed.”). Consequently, an interpretation commingling the individual liability provision and public agency provision

clauses (i), (ii), and (iii) into the FMLA’s definition of into a single clause is substantially similar to, if not identical,

employer cannot be sustained. See Lake Cumberland Trust, to the FLSA’s definition of employer. Cf. 29 U.S.C. § 203

954 F.2d at 1222. (d) (“Employer includes any person acting directly or

indirectly in the interest of any employer in relation to an

The result is similarly untenable when the interpretation employee and includes a public agency, . . .”). As discussed

aggregates clause (iv) with clauses (i) and (ii).23 The result supra, the FMLA adopts several of the FLSA’s provisions.

yields the following: “The term employer means any person However, in each instance where the FMLA adopts a

engaged in interstate commerce . . . who employs 50 or more provision of the FLSA, the FMLA refers directly to the

employees . . .; and includes any person who acts, directly or FLSA, rather than provides a restatement of the FLSA’s

indirectly, in the interest of any person in interstate commerce provision. The court in Keene explained the significance of

. . . who employs fifty or more employees. . . ; and includes the FMLA’s modification of the FLSA’s “employer”:

a successor in interest of any person engaged in interstate

commerce . . . who employs fifty or more employees . . . ; In 1974 Congress merely engrafted “Public Agency” into

and includes the General Accounting Office and the Library the FLSA by adding to an existing definition for private

of Congress; and includes a successor in interest of the employers. This did create an ambiguous situation

General Accounting Office and the Library of Congress.” See concerning the liability of public agency employees.

29 U.S.C. § 2611(4)(A)(i), (ii), & (iv). This interpretation But, in the FMLA, Congress explicitly took “Public

implies that the FMLA extends specific protection to

employees of the GAO and the Library of Congress from

future successors in interest. While the Court would at least 24

Notwithstanding the relatively unique factual scenario addressing

consider, albeit skeptically, an interpretation of the FMLA successive public entities, the Morrow court successfully endeavo red to

that included protections against a successor in interest of provide a specific instance where an FM LA suit was allowed against the

Federal Deposit Insurance Corporation as a successor in interest to the

Reso lution Trust Co rporation. See Morrow, 142 F. Supp. 2d at 1273

(citing Rhoa ds v. FDIC, 956 F. Sup p. 12 39, 1 254 ( D. M d. 19 97)).

23

A plain text interpretation of the statute would require 25

commingling (i), (ii), (iii), and (iv). In the interests of convenience and The Library of Congress, established in 1800, is the nation’s oldest

brevity, the Co urt shall proceed with its analysis of (iv) by omitting (iii) federal cultural institution. The Budget and Accounting Act of 1921, 42

as the difficulties of clau se (iii) have bee n previously d iscussed . Stat. 20 , created the G AO .

No. 01-5571 Mitchell v. Chapman, et al. 37 38 Mitchell v. Chapman, et al. No. 01-5571

Agency” out of the private employer definition and covered employer to any of the employees of the employer,

disconnected it from liability based on a person acting any successor in interest of a covered employer, and any

directly or indirectly in the interest of an employer. public agency.” 29 C.F.R. § 825.104(a). The regulation’s

Therefore, a better way to view the situation is that the express separation between public agency and the “directly or

FMLA corrected the ambiguity of the FLSA, as opposed indirectly” language supports our similar interpretation of

to letting the ambiguity of the FLSA control the Section 2611(4)(A). In addition, the example of individual

interpretation of the FMLA. liability provided in the regulations exclusively pertains to the

corporate setting, thereby evincing an intent to limit such

Keene, 127 F. Supp.2d at 775.26 This rationale is entirely liability to the private sector. See 29 C.F.R. § 825.104 (d)

persuasive in light of the FMLA’s text and framework. (“As under the FLSA, individuals such as corporate officers

‘acting in the interest of an employer’ are individually liable

We therefore conclude that the FMLA’s individual liability for any violations of the requirements of the FMLA.”). In

provision does not extend to public agencies. Three factors that same vein, we note that this Court has never extended

emanating from the text and framework of the statute support individual liability to public employees under the FLSA.27

this conclusion. First, Section 2611(4)(A) segregates the Consequently, in addition to the text and structure of the

provision imposing individual liability from the public agency statute, the regulations interpreting the FMLA and this

provision. Second, an interpretation that commingles the Court’s lack of precedent to the contrary, compel the

individual liability provision with the public agency provision conclusion that the FMLA does not impose individual

renders certain provisions of the statute superfluous and liability on public agency employers.

results in several oddities. Finally, as evidenced by other

provisions of the statute, the FMLA distinguishes its Accordingly, we conclude that the district court correctly

definition of employer from that provided in the FLSA by interpreted the FMLA as to preclude Mitchell’s individual

separating the individual liability and public agency capacity claims under the statute.

provisions.

V.

We note in passing that several factors extending beyond

the plain text of the statute support our conclusion against For the foregoing reasons, the decision of the district court

individual liability for public employers. First, our granting summary judgment in favor of the defendants is

interpretation is in accord with the regulations propounded by AFFIRMED.

the Secretary of Labor. Title twenty nine C.F.R. § 825.104(a)

provides that “employers covered by FMLA also include any

27

person acting, directly or indirectly, in the interest of a In Wong-Op asi v. Tennessee State Univ., Nos. 99-5658, 99-5660,

2000 U.S. App. LE XIS 21242, filed Aug. 16, 2000, this Court addressed,

inter alia, an FLSA c laim asserted against administrators o f a state college

26

and ultimately concluded that the claim lacked merit. As an unpublished

The Keene court’s analysis of the legislative history of the FLSA ’s opinion, the decisio n is not binding precedent. See Bell v. Johnson, 308

pub lic agency provision is in accord with prior decisions of the United F.3d 594 (6th Cir. 2002). Moreover, in light of the ultimate disposition

States Supreme Court, as well as the de cisions o f this Cou rt. See, e.g., of the case, the issue of individual liability for public agency employers

Ga rcia v. San Antonio Metro. Transit Auth., 469 U.S . 528 (1985 ); was of little relevance. Simply, this Court has not addressed a textual

Ma rshall v. Owensbo ro-Daviess Co unty H osp., 581 F.2d 116 (6th Cir. analysis of whether the F LSA impo ses individual liability on public

197 8). agency employers.