Morrow v. Putnam

• Decision Date: 12 June 2001
• Docket Number: No. CV-N-00-0665 HDM (VPC).,CV-N-00-0665 HDM (VPC).
• Parties: Scott D. MORROW, Plaintiff, v. Andrew PUTNAM, Joshua Kopf, Judy Walls, William Thompson, and William Henderson, et al., Defendants.
• Court: U.S. District Court — District of Nevada

Page 1271

142 F.Supp.2d 1271

Scott D. MORROW, Plaintiff, v. Andrew PUTNAM, Joshua Kopf, Judy Walls, William Thompson, and William Henderson, et al., Defendants.

No. CV-N-00-0665 HDM (VPC).

United States District Court, D. Nevada.

June 12, 2001.

Scott D. Morrow, Reno, NV, for Plaintiff.

Shirley Smith, U.S. Attorney — Reno, Reno, NV, for Defendants.

ORDER

McKIBBEN, Chief Judge.

Before the court is Defendants' Motion to Dismiss (# 12). Plaintiff Scott D. Morrow ("Plaintiff") alleges that after he took medical leave from his job at the United States Postal Service ("Postal Service"), he was not returned to an "equivalent" position. His pro se complaint alleges violations under the Family Medical Leave Act of 1993 ("FMLA" or "Act"), 29 U.S.C. § 2601, et seq. (1994), and seeks equitable and other relief. Defendants are all Postal Service employees, including the Postmaster General. The complaint does not specify whether Defendants are sued in their official or individual capacities.

Motion to Dismiss

Defendants contend that the FMLA does not authorize suit against individuals working for public agencies. This question is a matter of first impression in the Ninth Circuit. Defendants concede that the FMLA allows suit against public agency employers such as the Postal Service, as well as supervisory personnel, see, e.g., Mercer v. Borden, 11 F.Supp.2d 1190, 1191 (C.D.Cal.1998). Defendants nonetheless argue that the FMLA's definition of employer provides an implicit exemption from individual liability for individuals in public service, and that such a result is consistent with both the purpose of the FMLA and its regulatory interpretation.

When interpreting the meaning of a statute, the court looks first to the language of the statute itself. See United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989). The plain meaning of the statute controls, except in rare cases in which the literal application of the statutory language would compel an odd result or produce a result demonstrably at odds with legislative intent. See Public Citizen v. United States Dep't of Justice, 491 U.S. 440, 454, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989); Ron Pair, 489 U.S. at 242, 109 S.Ct. 1026.

The FMLA provides a private cause of action against employers who violate the substantive protections of the Act. See 29 U.S.C. § 2617(a). The FMLA defines employer in the following way:

(4) Employer

(A) In general

The term "employer" —

(i) means any person engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year;

(ii) includes —

(I) any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer; and

(II) any successor in interest of an employer;

(iii) includes any "public agency", as defined in section 203(x) of this title; and

(iv) includes the General Accounting Office and the Library of Congress.

(B) Public agency. For purposes of subparagraph (A)(iii), a public agency shall be considered to be a person engaged in commerce or in an industry or activity affecting commerce.

29 U.S.C. § 2611(4) (1994).

A plain reading of the statute indicates that supervisory government employees may be considered employers under the FMLA. Clause (I) of subparagraph 4(A)(ii) defines employer to include "any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer." The very next subparagraph, 4(A)(iii), explicitly includes public agencies as employers. While this statute becomes recursive when applied to supervisory personnel, because the definition of employer refers back to the word employer itself, there is no reason to assume that the term "employer" in subparagraph 4(A)(ii) means anything other than what Congress defined it to mean in the various definitions of paragraph 4(A). Therefore, under a straightforward reading of the statute, individuals employed by a public agency may be considered employers for the purposes of the FMLA if they meet the requirements of subparagraph 4(A)(ii).

Defendants advance a number of arguments for why the term "employer" in subparagraph 4(A)(ii) should be interpreted more narrowly. These arguments roughly follow the logic of the Recommendation of the United States Magistrate Judge adopted by the district court in Keene v. Rinaldi, 127 F.Supp.2d 770 (M.D.N.C.2000). First, Defendants suggest that subparagraph (ii) cannot modify "public agency," which appears later in the definition at subparagraph (iii), because subparagraph (ii) can only apply to the earlier subparagraph (i), which discusses private employers. However, the grammatical structure of paragraph 4(A) suggests that each of the subparagraphs modifies the term employer rather than each other. A plain reading shows that the term employer "means" what is provided for in subparagraph (i) and "includes" what is provided for in subparagraphs (ii), (iii), and (iv). The use of the em dash after the word employer also suggests such a parallel construction, especially considering that similar punctuation was used to set off parallel provisions in numerous other places in section 2611, including subparagraph (ii) itself. See 29 U.S.C. § 2611(2)(A), (2)(B), (6), (11), (12). Congress further reinforced this parallel structure by beginning each of subparagraphs (ii), (iii), and (iv) with the same word.

Furthermore, even if subparagraph (ii) only applied to subparagraph (i)'s "any person engaged in commerce or an industry or activity affecting commerce," paragraph 4(B) states that a public agency "shall be considered to be person engaged in commerce or an industry affecting or activity affecting commerce." Therefore, by the force of Defendants' own logic, a supervisor in a public agency could be considered an employer under the FMLA.

Second, Defendants argue that the parallel structure of subparagraph 4(A)(ii) suggests that public employees may not be considered employers under the FMLA. Subparagraph 4(A)(ii) is composed of two clauses. Clause (I) covers persons acting in the interest of their employers, and clause (II) extends the definition of employer to "any successor in interest of an employer." Defendants contend that the definition in clause (II) could only apply to private persons or organizations because public agencies do not ordinarily have successors in interest in labor situations. According to Defendants, the parallel placement of these clauses suggests that clause (I) also applies only to private employers. However, any logical rationale for this reading disappears when the sharp distinction between clause (II) and public agencies is blurred, which happens when a public agency becomes a successor in interest to a private employer, see, e.g., Rhoads v. FDIC, 956 F.Supp. 1239, 1254 (D.Md.1997) (allowing FMLA suit against the Federal Deposit Insurance Corporation as successor in interest to the Resolution Trust Corporation, which had been appointed the receiver of a private bank).

For all of these reasons, the court finds no implicit public agency exception to individual liability under the FMLA. Like their peers in the private sector, supervisory personnel within a public agency may be considered employers under 29 U.S.C. § 2611(A)(4)(ii)(I) when they act in the interest of the employer to any of the employees of such employer.

Applying this plain meaning to the words of Congress produces a result that is neither odd nor contrary to the FMLA's goal of entitling employees to take reasonable leave while accommodating the legitimate interests of employers.¹ See 29 U.S.C. § 2601(b) (1994). Reasonable minds could disagree about whether allowing employees to sue supervisors who violate the substantive protections of the FMLA is the best approach for meeting the FMLA's statutory purposes. However, that is for the legislature, not the court to decide.

This holding is also in line with other courts that have looked beyond the words of the statute and concluded that the FMLA allows employees to sue supervisory employees of public agencies in their individual capacities. See Kilvitis v. County of Luzerne, 52 F.Supp.2d 403, 412-13 (M.D.Pa.1999); Meara v. Bennett, 27 F.Supp.2d 288, 291 (D.Mass.1998); Knussman v. Maryland, 935 F.Supp. 659, 664 (D.Md.1996). As one consideration, these courts have noted the similarity between the statutory definitions of employer in the FMLA and the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 203(d) (1994). In both the FLSA and FMLA, Congress included a nearly identical definition of an employer² as any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer. 29 U.S.C. §§ 203(d), 2611(4)(A)(ii)(1). The Department of Labor's regulations implementing the FMLA also recognize this parallel phrasing and suggest that "As under the FLSA, individuals ... are liable for violations of the requirements of the FMLA." 29 C.F.R. § 825.104(d) (2000). The Ninth Circuit has employed this comparative approach when ascertaining whether liability extends to managing individuals under other federal laws. See Miller v. Maxwell's Int'l Inc., 991 F.2d 583, 587 (9th Cir.1993).

Most circuit courts have held that the FLSA extends liability to supervisory personnel. See Baystate Alternative Staffing, Inc. v. Herman, 163 F.3d 668, 676-79 (1st Cir.1998); United States Dep't of Labor v. Cole Enters., Inc., 62 F.3d 775, 778-79 (6th Cir.1995); Brock v. Hamad, 867 F.2d 804, 808 (4th Cir.1989); Donovan v. Grim Hotel Co., 747 F.2d 966, 971-72 (5th Cir.1984). Supervisory personnel liable under the FLSA include those who are employed by public agencies. See, e.g., Lee v. Coahoma County, 937 F.2d 220, 226 (5th Cir.1991) (allowing suit against Sheriff as an "employer" under the FLSA), mandate reissued as...