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.

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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.)

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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

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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].

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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.

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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.

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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).

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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.

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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

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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.

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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

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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).

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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

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(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).

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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 ).

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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).

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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.

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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 .

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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.