Krohn v. Forsting

Decision Date17 July 1998
Docket NumberNo. 4:97-CV-413 CAS.,4:97-CV-413 CAS.
PartiesMarsha KROHN, Plaintiff, v. Jack W. FORSTING, et al., Defendants.
CourtU.S. District Court — Eastern District of Missouri
11 F.Supp.2d 1082
Marsha KROHN, Plaintiff,
Jack W. FORSTING, et al., Defendants.
No. 4:97-CV-413 CAS.
United States District Court, E.D. Missouri, Eastern Division.
July 17, 1998.

Page 1083


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Rick Barry, Rick Barry Law Office, Clayton, MO, for Plaintiff.

Elbert A. Walton, Jr., St. Louis, MO, for Defendants.


SHAW, District Judge.

This matter is before the Court on defendants Jack W. Forsting and the City of Berkeley, Missouri's motion to dismiss for lack of subject matter jurisdiction, and amended motion for summary judgment. Plaintiff opposes the motions.

Plaintiff Marsha Krohn brings this claim pursuant to the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. §§ 2601-2654. Plaintiff alleges that defendants Forsting, Joshua Richardson and the City of Berkeley ("City") denied her request for medical leave after she suffered an injury during her employment, and subsequently terminated her employment because of her FMLA leave request. Defendants Forsting and the City (collectively, the "defendants") move to dismiss for lack of subject matter jurisdiction on the basis that plaintiff has failed to exhaust her administrative remedies. These defendants also move for summary judgment on several grounds.1

I. Motion to Dismiss.

The Court will first address the issue of its subject matter jurisdiction.

A. Standard of Review.

"In order to properly dismiss an action for lack of subject matter jurisdiction under Rule 12(b)(1), the complaint must successfully be challenged on its face or on the factual truthfulness of its averments." Titus v. Sullivan, 4 F.3d at 590, 593 (8th Cir.1993) (citing Osborn v. United States, 918 F.2d 724, 729 n. 6 (8th Cir.1990) (citation omitted)). Distinguishing between a facial and factual challenge is critical to determining how the Court should proceed when resolving a motion to dismiss for lack of subject matter jurisdiction.

Under a facial challenge to jurisdiction all of the factual allegations in the plaintiff's complaint are presumed to be true, while under a factual challenge no presumptive truthfulness attaches to the allegations in the complaint. See Titus, 4 F.3d at 593 & n. 1. Further, under a factual challenge the district court is afforded the unique power to make factual findings which are decisive of its jurisdiction. See Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981). As noted by the United States Court of Appeals for the Eighth Circuit,

Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction—its very power to hear the case—there is substantial authority that the trial court is free to weigh the evidence and satisfy for itself as to the existence of its power to hear the case.

Titus, 4 F.3d at 593 n. 1.

The Court concludes that defendants have made a factual challenge to the plaintiff's complaint. Consequently, the Court is not limited to an inquiry into undisputed facts, but may hear conflicting evidence and decide for itself the factual issues which determine jurisdiction. Williamson, 645 F.2d at 413.

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B. Discussion.

Defendants move to dismiss, asserting that the Berkeley City Charter granted plaintiff the right to an administrative review of her alleged denial of leave under the FMLA, she did not exercise that right, and therefore the Court lacks subject matter jurisdiction over this action. In support, defendants cite cases interpreting the Missouri Administrative Procedure and Review Act, RSMo. §§ 536.010 et seq., and two FMLA cases, Mann v. Haigh, 891 F.Supp. 256 (E.D.N.C.1995), aff'd, 120 F.3d 34 (4th Cir. 1997), and Ladd v. Second Nat'l Bank of Warren, 941 F.Supp. 87 (N.D.Ohio 1996).

In response, plaintiff states that she attempted to appeal her termination to the City's Civil Service Board but her appeal was refused, and she challenges the adequacy of procedural due process available through the Civil Service Board. Plaintiff also contends that any appeal would have been futile, but does not specify why. Plaintiff urges the Court to assume jurisdiction over the case to resolve disputed factual issues, and assails the City's lack of effort to implement the FMLA by posting notices, establishing procedures, or educating its employees about their rights under the FMLA. Plaintiff also relies on McCarthy v. Madigan, 503 U.S. 140, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992), for the proposition that a balancing of interests test should be utilized to determine whether exhaustion should be required, but does not provide any evidence or make any arguments concerning the interests to be balanced.

As an initial matter, the Court rejects as meritless defendants' unsupported argument that the requirements of Missouri administrative procedure law should be grafted onto plaintiff's federal claim.

With respect to federal causes of action, where Congress specifically mandates exhaustion of administrative remedies, exhaustion is required. McCarthy v. Madigan, 503 U.S. at 144, 112 S.Ct. 1081 (citing Coit Independence Joint Venture v. FSLIC, 489 U.S. 561, 579, 109 S.Ct. 1361, 103 L.Ed.2d 602 (1989)). Where Congress has not clearly required exhaustion, however, "sound judicial discretion governs." Id.

The FMLA does not contain an exhaustion requirement. See 29 U.S.C. §§ 2601 et seq.; 29 C.F.R. § 825.400(a); Danfelt v. Board of County Commissioners of Washington Co., 998 F.Supp. 606, 609 (D.Md.1998); Spurlock v. NYNEX, 949 F.Supp. 1022, 1030 (W.D.N.Y.1996). The cases cited by defendants are easily distinguished on the facts. In Mann v. Haigh, 891 F.Supp. 256 (E.D.N.C.1995), a civilian employee of the U.S. Marine Corps brought an action under the FMLA. The district court concluded that the plaintiff was a federal employee governed by Title II of the FMLA. Title II, unlike Title I which applies to the private sector and non-federal governments, does not provide a private cause of action. As a result, the district court concluded the plaintiff must pursue his administrative remedies prior to obtaining judicial review. Because Title I applies to the plaintiff in the instant case, Mann is inapposite.

In Ladd v. Second Nat'l Bank of Warren, 941 F.Supp. 87 (N.D.Ohio 1996), a former employee of a bank placed into receivership by the Resolution Trust Corporation and succeeded by the Federal Deposit Insurance Corporation sued under the FMLA. The FDIC as defendant moved for dismissal, asserting that the district court lacked subject matter jurisdiction because the plaintiff had not exhausted her administrative remedies as required by the Financial Institutions Reform, Recovery and Enforcement Act ("FIRREA"), 12 U.S.C. § 1821(d). The district court relied on the uniform body of law interpreting of the applicable FIRREA provision, and held that no jurisdiction exists over claims against a failed banking institution for which the RTC or FDIC has been appointed receiver, unless administrative procedures are complied with. Id. at 90-91. Thus, the Ladd decision is also readily distinguished and does not apply to the instant case.

Therefore, the Court must determine in the exercise of its discretion whether plaintiff should be required to exhaust administrative remedies prior to bringing suit under the FMLA.

Substantial interests underlie the exhaustion doctrine, including that disputes be resolved and errors corrected in the first

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instance by the parties involved rather than the courts, and that judicial efficiency be promoted by informal resolution of disputes or, at minimum, the creation of a useful record for subsequent judicial consideration. McCarthy, 503 U.S. at 145, 112 S.Ct. 1081. Nonetheless, "federal courts are vested with a `virtually unflagging obligation' to exercise the jurisdiction given them", id. at 146, 112 S.Ct. 1081 (quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817-18, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976)), which can weigh against imposition of an exhaustion requirement.

Therefore, the Court must determine whether exhaustion is required, balancing plaintiff's interest in retaining prompt access to a federal judicial forum against the countervailing interests favoring exhaustion. See McCarthy, 503 U.S. at 146, 112 S.Ct. 1081. "[A]dministrative remedies need not be pursued if the litigant's interests in immediate judicial review outweigh the government's interests in the efficiency or administrative autonomy that the exhaustion doctrine is designed to further." Id. (citation omitted). In making this determination, the Court should examine both the nature of the claim presented and the characteristics of the particular administrative procedure provided. Id.

The FMLA claim presented in this case asserts the wrongful termination of plaintiff's employment as a firefighter after her legitimate request for leave under the FMLA was wilfully denied. Plaintiff seeks reinstatement to her position, with back wages, and restoration of seniority and other benefits of employment, double damages for defendants' willful action, and reasonable attorney's fees.

In support of an exhaustion requirement, defendants point to Article VII, Section 5 of the Charter of the City of Berkeley, which states that an employee in the City's classified service (which included the plaintiff), who has been suspended, discharged or reduced in rank "shall, ... have the privilege of a public hearing before the Civil Service Board." (See Ex. A to Defs.' Mot. Dismiss.) The Charter does not state that an employee must exercise this "privilege" in order to bring legal action against the City.

Defendants also contend that a three-step grievance procedure for the appeal of disciplinary reprimands in the City's Personnel Rules and Regulations is applicable to plaintiff. Under this procedure, any employee who has been subjected to discipline "may" (i) orally request a review of the action...

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