United States District Court, N.D. Oklahoma
LINDA G. SCHUMAN, Plaintiff,
RICK PERRY, in his capacity as the United States Secretary of Energy, Defendants.
OPINION AND ORDER
E. DOWDELL UNITED STATES DISTRICT JUDGE
alleged in the Complaint, plaintiff is a 63-year-old female,
and she was a federal employee. She asserts claims of age
discrimination (29 U.S.C. §§ 621 et seq.), gender
discrimination (42 U.S.C. §§ 2000e et seq.),
violation of the Family Medical Leave Act (FMLA) (5 U.S.C.
§§ 6381 et seq.), and retaliation in violation of
42 U.S.C. § 2000e-3(a), 29 U.S.C. § 623(d), and 5
U.S.C. § 6385.
began working in the Human Resources Department for the
Western Area Power Administration in February of 2007. She
transferred to the Southwestern Power Administration (SWPA)
in September 2008. SWPA is a federal agency of the United
States within the Department of Energy. Defendant Keith
Blackstone became the Director of Human Resources, and
plaintiff's supervisor, at SWPA in November 2013.
Plaintiff alleges that, once Blackstone became her
supervisor, she was subjected to discriminatory treatment,
based on her age and gender. She further alleges that
Blackstone interfered with her FMLA leave and that he
retaliated against her for engaging in protected activity. As
a result, plaintiff was allegedly forced into early
retirement. Plaintiff alleges that her position is now held
by a younger and less qualified male employee.
United States of America seeks dismissal of plaintiff's
FMLA claims and dismissal of all defendants except the
Secretary of Energy. (Doc. 9).
Plaintiff's FMLA Claims
FMLA permits employees to take leave from their jobs for
various health and family-related reasons. The FMLA was
enacted under two titles. Title I is codified at 29 U.S.C.
§§ 2601- 2916, while Title II is found at 5 U.S.C.
§§ 6381-6387. Title I governs leave for private
employees and federal employees not covered by Title II.
Title II defines “employee” as “any
individual who (A) is an ‘employee' as defined by
section 6301(2) . . . and (B) has completed at least 12
months of service as an employee.” 5 U.S.C. §
6381(1)(A). Section 6301(2) refers to 5 U.S.C. §
2105's definition of “employee.” That statute
generally defines an “employee” to include most
civil service employees who perform a federal function and
are supervised by another appointed employee. It is
undisputed in this case that plaintiff was a Title II
employee. The allegations of her Complaint establish that
fact. For example, plaintiff cites the Title II FLMA
provisions, 5 U.S.C. §§ 6381 et seq., as the bases
for her FMLA interference and retaliation claims.
(See Complaint, Doc. 2 at ¶¶ 7, 8, and
Count III at 16).
Title I and Title II employees are afforded equivalent rights
to family and medical leave, only Title I authorizes a
private right of action. Title II does not. Title I provides
that employers who violate § 2615 will “be liable
to any eligible employee” for damages and equitable
relief, and provides employees a private right of action. 29
U.S.C. § 2617(a). Title II of the FMLA does not have an
analogous provision providing a Title II employee a private
right of action. For this reason, the Third, Fourth, Ninth,
and Eleventh Circuits have determined that the United States
has not waived sovereign immunity for FMLA claims by Title II
employees, such that FMLA claims by Title II employees are
barred. See, e.g., Mann v. Haigh, 120 F.3d 34, 37
(4th Cir. 1997); Russell v. United States Dep't of
the Army, 191 F.3d 1016, 1019 (9th Cir. 1999); Burg
v. United States Dep't of Health and Human Servs.,
387 F. App'x 237 (3d Cir. 2010) (unpublished);
Cavicchi v. Secretary of the Treasury, No.
01-3406-CV-JEM, 2004 WL 4917357, *6 (11th Cir. 2004)
(unpublished). While it does not appear that the Tenth
Circuit has addressed the issue, district courts within this
Circuit have determined that Title II employees may not
maintain private actions for alleged violations of the FMLA.
See Sanders v. Shinseki, No. 11-4179-JTM, 2012 WL
5985469, *4-5 (D. Kan. Nov. 29, 2012) (unpublished);
Mattson v. Chertoff, No. 07-CV-2432-PAB-BNB, 2009 WL
564289, *1, 4-6 (D. Colo. Mar. 5, 2009) (unpublished);
Berry v. Federal Aviation Administration, No.
05-CV-779-WYD-CBS, 2006 WL 446080, *2-3 (D. Colo. Feb. 21,
upon the statutory language of Title II and the foregoing
authorities, the Court concludes that Title II of the FMLA
does not create an express or implied right of action
permitting Title II employees to sue under the FMLA.
Accordingly, plaintiff's FMLA interference claim (Count
III) is dismissed with prejudice. In addition, the portion of
Count IV which alleges a retaliation claim under the FMLA
must be dismissed, as it is also premised upon Title II.
(See Complaint, Doc. 2 at 17, citing 5 U.S.C. §
6385). As Title II employees have no private right of action
under the FMLA, they may not maintain FMLA retaliation
claims. See Cavicchi, 2004 WL 4917357, at *6
(affirming summary judgment on FMLA retaliation claim that
was purportedly premised upon 5 U.S.C. § 6385).
Dismissal of Certain Defendants
42 U.S.C. § 2000e-16(c), the United States argues that
the Secretary of Energy is the only properly named defendant
in this action. The Court agrees. The applicable statute
provides that a federal employee alleging discrimination may
file a civil action, in which “the head of the
department, agency, or unit, as appropriate, shall be the
defendant.” 42 U.S.C. § 2000e-16(c). The only
proper defendant in such a suit is the head of the relevant
federal agency or department which employed the plaintiff.
See Owens v. United States, 822 F.2d 408, 410 (3rd
Cir. 1987); Wilder v. Marsh, No. 90-2272, 1991 WL
145349, at *2 (10th Cir. Aug. 1, 1991) (“The only
proper defendant in such an action is the head of the agency
or department in which the plaintiff is employed.”).
The Secretary of Energy is the only proper defendant, and the
other defendants will be dismissed.
foregoing reasons, the United States of America's Partial
Motion to Dismiss (Doc. 9) is granted. The plaintiffs FMLA
claims (Count III and the part of Count IV that asserts an
FMLA retaliation claim) are dismissed with prejudice. In
addition, the only proper defendant in this action is the
United States ...