Keen v. Brown, 3:95cv2396 (JBA).

• Decision Date: 21 March 1997
• Docket Number: No. 3:95cv2396 (JBA).,3:95cv2396 (JBA).
• Citation: 958 F.Supp. 70
• Court: U.S. District Court — District of Connecticut
• Parties: Hermaline KEEN v. Jesse BROWN, Secretary of Veterans Affairs, et al.

958 F.Supp. 70

Hermaline KEEN v. Jesse BROWN, Secretary of Veterans Affairs, et al.

No. 3:95cv2396 (JBA).

United States District Court, D. Connecticut.

March 21, 1997.

W. Martyn Philpot, Jr., Law Office of Martyn Philpot, New Haven, CT, for Hermaline Keen.

Carolyn Aiko Ikari, U.S. Attorney's Office, New Haven, CT, for Jessie Brown, Dept. of Veterans Affairs, Vincent Ng, Venita Godfrey.

RULING ON DEFENDANT'S MOTION TO DISMISS (DOC. # 11)

ARTERTON, District Judge.

I. Introduction

Plaintiff Hermaline Keen brought suit for violations of federal employment laws against the defendants the Department of Veterans Affairs ("VA"); Jesse Brown, Secretary of the Department of Veterans Affairs; Vincent Ng, the Medical Center Director for the Department's Medical Center in West Haven, Connecticut ("VA Medical Center"); and Venita Godfrey, Textile Care Foreman for the VA Medical Center. In particular, plaintiff alleges that the defendants violated the Family and Medical Leave Act by terminating her employment, and that in doing so they were motivated by illicit considerations of the plaintiffs race in violation of 42 U.S.C. §§ 1985 and 1986. Defendants have moved to dismiss both counts of the complaint against all defendants for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. For the following reasons, defendants' motion (Doc. # 11) is GRANTED.

II. Facts

For the purposes of this motion, the following facts are accepted as alleged. Hermaline Keen has been employed by the VA Medical Center for 13 years in a variety of capacities, the most recent being as a laundry service worker under the supervision of Venita Godfrey. She apparently is represented by a union, the American Federation of Government Employees (AFGE). Prior to December 1994, the plaintiff notified defendant Godfrey that she was pregnant, and that she might experience medical complications as a result of her pregnancy. On two occasions in December 1994, the plaintiff experienced emergency medical problems, confirmed by her physician, and missed work as a result, once for an eight hour shift and once for half an hour. Plaintiff ceased working on December 28, 1994, and on January 5, 1995, she requested in writing a medical leave due to pregnancy complications. On January 20, 1995 plaintiff was terminated from her position ostensibly due to her failure to report to work on the two occasions in December when she reported she was experiencing medical problems as a result of her pregnancy.

The VA Medical Center justified her termination on the grounds that Ms. Keen had violated a "Last Chance Agreement" which the plaintiff had signed on October 19, 1994. The agreement required that the plaintiff provide notification and certification of any absences for emergency or medical reasons. Under the agreement, failure to comply with the conditions would constitute just cause for discharge. Further, section G of the Agreement provided that:

Ms. Keen hereby voluntarily waives all rights to challenge, and all procedural rights for, any removal action taken as a result of the breach of this agreement. The waived rights include, but are not limited to, the rights to appeal to the Merit Systems Protection Board, to file a grievance, or to file a civil action in any court....

It appears that Ms. Keen's employee representative also signed the agreement.

Defendants move to dismiss plaintiff's entire complaint for failure to state a claim upon which relief can be granted and for lack of subject matter jurisdiction. Specifically, defendants argue that: 1) plaintiff's claim must be dismissed because the plaintiff is expressly excluded from coverage of Title I of the Family and Medical Leave Act (FMLA), 2) plaintiff does not have a private right of action under the FMLA as a federal employee, and 3) Title VII provides the exclusive remedy for a federal employee who suffers racial discrimination, thus barring plaintiff's claim under §§ 1985 and 1986. Plaintiff alleges that this Court can hear her claim under Title II of the FMLA, but has withdrawn voluntarily the remaining claim.

III. Discussion

1. Standard

A motion to dismiss pursuant to Rule 12(b)(1) must be granted if the plaintiff fails to establish jurisdiction, while dismissal under 12(b)(6) for failure to state a claim is appropriate "only when, construing the allegations in the complaint in a light most favorable to plaintiff, it appears beyond doubt he can prove no set of facts in support of the claim that would entitle him to relief." Patton v. Dole, 806 F.2d 24, 30 (2d Cir.1986). Though the plaintiff and the defendant use the terms "subject matter jurisdiction" and "cause of action" almost interchangeably, it seems clear that the dispositive issue is whether plaintiff has a private right of action to enforce the Family and Medical Leave Act (FMLA) in federal court.

2. The Plaintiff does not have a right of action under Title II of the Family and Medical Leave Act.

i) Statutory Language and Structure:

Plaintiff initially brought her action under Title I of the FMLA, 29 U.S.C. §§ 2601 et seq. However, the enforcement remedies in Title I apply only to "eligible employees." 29 U.S.C. § 2617. Plaintiff concedes that she does not fall within this definition, and that she is covered instead by Title II, codified as 5 U.S.C. §§ 6381 et seq., which guarantees the same substantive rights to federal employees. (Mem. Opp. at 4). Nonetheless, plaintiff asserts that read in a light most favorable, her complaint does in fact state a claim under the FMLA. Therefore, the court must determine whether the plaintiff has a cause of action under Title II of the FMLA.

The first step in interpreting a statute is to look at its plain and ordinary meaning. Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 314, 62 L.Ed.2d 199 (1979). On its face, the statute does not provide a private right of action to federal employees to enforce the provisions of the FMLA. Title I and Title II parallel each other in terms of the substantive rights provided for employees. Both titles provide 12 weeks unpaid leave for the birth or adoption of a child, in order to care for a family member, or because of a serious health condition that makes the employee unable to perform the functions of his or her position. 5 U.S.C. § 6382(a)(1) (Title II); 29 U.S.C. § 2612 (Title I). Both titles require the continuation of health insurance, and allow an employer to require medical certification of the need for leave. However, the two provisions differ in one critical respect: while Title I provides for a private right of action for employees that suffer violations under the Act, Title II includes no such enforcement remedy. Compare 29 U.S.C. § 2617 (Title I) with 5 U.S.C. § 6381, et seq. (Title II).

The language of the implementing regulations also highlights this difference. The regulations promulgated by the Office of Personnel Management (OPM) pursuant to Title II state that:

"This subpart provides regulations to implement sections 6381 through 6387 of title 5, U.S.Code. This subpart must be read together with those sections of law. Sections 6381 through 6387 ... provide a standard approach to providing family and medical leave to Federal employees by prescribing an entitlement to a total of 12 administrative workweeks of unpaid leave...."

5 CFR § 630.1201. These regulations do not reference any means of enforcement, while the regulations promulgated by the Department of Labor implementing Title I include a subpart entitled "What Enforcement Mechanisms Does FMLA Provide?" 29 CFR § 825.400. This provision outlines the options for employees who believe their rights have been violated, and includes "(1) Filing, or having another person file on his or her behalf, a complaint with the Secretary of Labor, or (2) Filing a private lawsuit pursuant to section 107 of FMLA." Id.

The language used in the Federal Register further supports the conclusion that the statute does not provide an explicit private right of action for federal employees. The interim regulations issued by the Office of Personnel Management (OPM) state that "[i]f an employee believes an agency has not fully complied with the rights and requirements provided under sections 6381 through 6387 of title 5, United States Code, and the regulations set forth below, the employee may file a grievance under an agency's administrative grievance procedures or negotiated grievance procedures." 581 Fed.Reg. 39,602.

It is this statutory and regulatory language on which the two district courts that have addressed this question have relied. In Sutherland v. Bowles, after a summary discussion of the wording of the statute, the Eastern District of Michigan stated that "[b]ecause Title II does not create a private right of action or waive federal sovereign immunity, Sutherland's suit must be dismissed if he is covered by Title II rather than Title I." 1995 WL 367937 *2. The Eastern District of North Carolina similarly relied on the statutory language when it adopted a Magistrate's recommendation that a civilian Marine Corps employee was excluded from the coverage of Title I, and thus dismissed his complaint. Mann v. Haigh, 891 F.Supp. 256, 258 (E.D.N.C.1995).

ii) Implied right of Action:

In the absence of an express right of action, the focus then turns to whether the court should imply a cause of action for federal employees under the statute. Plaintiff notes that "remedial statutes are to be liberally construed to effectuate their purposes." Parise v. Riccelli Haulers, Inc., 672 F.Supp. 72, 74, (N.D.N.Y.1987). She argues that the FMLA should be liberally interpreted in favor of protecting employees who need family or medical leave, and that the legislative history supports the contention that Congress intended to provide federal employees with a right of action. While the remedial aspects of the FMLA are apparent, an examination of the legislative intent...