Mosley v. Douglas County Correctional Center, 8:99CV78 (D. Neb. 2000)

• Decision Date: 01 May 2000
• Docket Number: 8:99CV78.
• Parties: DENISE MOSLEY v. DOUGLAS COUNTY CORRECTIONAL CENTER and DOUGLAS COUNTY NEBRASKA, GOVERNMENTAL SUBDIVISIONS, WILLIAM McPHILLIPS Individually, TIMOTHY DEMPSEY, Individually, JOHN M. TAYLOR, II, Individually.
• Court: U.S. District Court — District of Nebraska

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DENISE MOSLEY v. DOUGLAS COUNTY CORRECTIONAL CENTER and DOUGLAS COUNTY NEBRASKA, GOVERNMENTAL SUBDIVISIONS, WILLIAM McPHILLIPS Individually, TIMOTHY DEMPSEY, Individually, JOHN M. TAYLOR, II, Individually.

8:99CV78.

United States District Court, D. Nebraska.

May __, 2000.

MEMORANDUM AND ORDER

JOSEPH F. BATAILLON, District Judge.

Introduction

This matter is before the Court on defendants' motion to dismiss (Filing No. 36). Defendants William McPhillips, Timothy Dempsey and John Taylor, II, request the Court to dismiss claims against them in their individual capacities. The Douglas County Correctional Center requests that this Court dismiss all claims against it on the grounds that it is not an entity that can be sued but is a department within Douglas County. Douglas County is already a named defendant in this case.

I have reviewed the record, the motion to dismiss, the brief in support of the motion to dismiss, and the objection and brief in opposition to the motion to dismiss, as well as the relevant case law. With regard to the three individually named defendants, I find that the motion to dismiss should be denied at this time, and that the issues can be raised again at the summary judgment stage, after completion of pertinent discovery. With regard to defendant Douglas County Correctional Center, I find that the motion to dismiss should be granted. The defendant contends that it is a department within the defendant Douglas County. The plaintiff did not contest this in either the objection to motion to dismiss or the brief in support of the objection. In addition, I shall order the plaintiff to file an amended complaint that briefly outlines the role of the defendants sued in their individual capacities and alleges why they are to be considered employers within the meaning of the Family Medical Leave Act, 29 U.S.C. § 2611(4)(A).

Statement of the Case

An amended complaint was filed in this case (Filing No. 17) alleging violations which include gender and race discrimination in violation of Title VII, 42 U.S.C. § 2000(e), et seq.; 42 U.S.C. § 1981; 42 U.S.C. § 1983; and the Nebraska Fair Employment Practice Act, Neb. Rev. Stat. § 48-1101, et seq. In the amended complaint plaintiff also alleged a violation of the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601, et seq.

Plaintiff is a black female who during the time in question was employed at the Douglas County Correctional Facility. She contends that she was discriminated in training opportunities after she filed a grievance, and that she was denied "light duty" after she found out she was pregnant, even though this opportunity was afforded to both male and white female employees. She further contends that she was forced to sign a family medical leave request form and later was terminated from her job. She filed an administrative claim with the Equal Opportunity Commission who issued her a right to sue letter.

Standard of Review

A complaint may not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts sufficient to support the claim. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); McCormack v. Citibank, 979 F.2d 643, 646 (8th Cir. 1992); Ronwin v. Smith Barney, 807 F. Supp. 87, 89 (D. Neb. 1992). A complaint in federal court need only contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Schmedding v. Tnemec Co., 187 F.3d 862, 864 (8th Cir. 1999). The Court must take the allegations as true and allow all reasonable inferences arising therefrom in favor of Mosley. Schmedding, at 864; Doe v. Norwest Bank, 107 F.3d 1297, 1303-04 (8th Cir. 1997). We construe the complaint liberally in the light most favorable to the plaintiff. Coleman v. Watt, 40 F.3d 255, 258 (8th Cir. 1994). We must accept the allegations set forth in the complaint as true. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). The Court will only grant a dismissal of a complaint where it is clear that there is a bar to relief. Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir. 1995).

Definition of "Employer" under the FMLA

The individual defendants contend that they do not meet the statutory definition of employer under the FMLA. The FMLA provides that an employer who interferes with or denies the rights provided to any employee under the act is liable for damages. 29 U.S.C. § 2617(a). Defendants contend that the Eleventh Circuit has addressed this issue and concluded:

We hold that a public official sued in his or her individual capacity is not an "employer" under the FMLA, and therefore there is no federal subject matter jurisdiction over such a claim. The district court should have dismissed the FMLA claim insofar as it is asserted against the defendants in their individual capacities.

Wascura v. Carter, 169 F.3d 683, 687 (11^th Cir. 1999). Further, defendants contend that the FMLA and the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., define employer in a similar manner as noted in Welch v. Laney, 57 F.3d 1004, 1011 (11^th Cir. 1995). The court in Welch indicated that an official, in his individual capacity, has no control over the employee's employment and consequently is not an employer under the act. Id. See also, Carter v. Rental Uniform Serv. of Culpepper, Inc., 977 F. Supp. 753, 759 (W.D. Va. 1997) (FMLA defendant could not be sued in individual capacity); Frizzell v. Southwest Motor Freight, Inc., 906 F. Supp. 441, 449 (E.D. Tenn. 1995) (term "employer" does not provide liability for individuals). Defendants argue that the same analysis applies to them in this case.

Plaintiff agrees that this Court should look to cases under the FLSA for interpretation of the definition of "employer." However, plaintiff argues that the Wascura court did not decide as a matter of law that an individual governmental employee is immune from suit. The court found, argues plaintiff, that the individuals in question were not employers because none of them had control over the plaintiff's employment. Plaintiff cites to other case law in support of this proposition that a public actor must have control over the employee to be individually liable under the FLSA. See Lee v. Coahoma County, Mississippi, 937 F.2d 220, 226 (5^th Cir. 1991) (county sheriff found to be an employer); Barfield v. Madison County, Mississippi, 984 F. Supp. 491, 497 (S.D. Miss. 1997) (county sheriff can be held individually liable), where court held:

Furthermore, after researching this issue exhaustively, it appears that the majority of cases have concluded that public officials, just like their counterparts in the private sector, may be held individually liable for violations of the FLSA. Id.

Other cases relied on by the plaintiff consider factors such as whether the individual controls hiring and firing of employees, controls the manner in which the work is performed, and the fixing of wages. Wirtz v. Pure Ice Co., 322 F.2d 259 (8^th Cir. 1963); Freemon v. Foley, 911 F. Supp. 326, 329-32 (N.D. Ill. 1995). Judge Cambridge likewise held that the FMLA applies to individual defendants as interpreted through the use of the FLSA. Hauer v. Mid-America Council Boy Scouts of America, No. 97CV230, slip op. at 6-7 (D. Neb. Dec. 11, 1997) (relying on cases that held individuals may be employers within the meaning of 29 U.S.C. § 2611(4)(A)(ii)(I), citations omitted).

I find that the case law clearly allows for personal individual liability under the FLSA and hence the FMLA. Likewise, I find that a state actor can be sued in his individual capacity just as a private actor. See Luder v. Endicott, 86 F. Supp.2d 854, 860 (W.D. Wis. 2000) (correctional officials qualified as employers in their individual capacities); Baker v. Stone County, 41 F. Supp.2d 965, 978-81 (W.D. Mo. 1999) (finding county sheriff liable as an "employer" under the FLSA); Meara v. Bennett, 27 F. Supp.2d 288, 291 (D. Mass. 1998) (finding district attorney subject to individual liability as an employer); Waters v. Baldwin Co., 936 F. Supp. 860, 863-64 (S.D. Ala. 1996) (finding county...