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applying the same analysis under the FMLA to dismiss claims against individual defendants where the plaintiff did not allege defendants took any specific actions related to the FMLA violation
Summary of this case from Killion v. SketersOpinion
No. 99 C 8332
August 14, 2000
MEMORANDUM OPINION AND ORDER
Edward A. Evans has sued William Henderson, Rufus Porter, Teresa Crayton and Oliver Kimbrough (collectively "defendants") for violation of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601. All defendants are sued in their official capacities. In addition, Crayton is sued individually.
Defendants move to dismiss the complaint against them in their official capacities. Defendants urge dismissal on two grounds: (1) defendants were not timely served with process; and (2) defendants are protected by sovereign immunity; only the United States Postal Service is a proper defendant to the suit.
DISCUSSION
I. Service Complied with Rule 4(m)
Defendants allege that Evans failed to serve them with process within the 120-day requirement of Rule 4(m). Evans responds that service was timely or, in the alternative, that he has shown good cause for any delay.
Rule 4(m) of the Federal Rules of Civil Procedure provides, "[i]f service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion . . . shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period." There is a complicated factual dispute between the parties as to whether service was actually effected within 120 days. This court finds it unnecessary to resolve this dispute because the court finds good cause for any failure to serve.
It appears from the parties' motions that the latest that a defendant received service was on June 5, 2000. Accepting defendants' argument that the running of the 120 day period began on January 7, 2000, 120 days would expire on May 6, 2000. That means that the longest possible delay was a period of less than a month. Cf. Campell v. Ill. Dep't of Corrections, 907 F. Supp. 1173, 1178 (N.D.Ill. 1995) (under different factual circumstances, delay of nearly two years in service of process held to satisfy good cause under Rule 4(m)). Of course, if Evans' arguments are accepted, service of process occurred within the 120-day filing period.
Evans has given an explanation for the delay in the service of process. Given the fact that counsel was appointed on January 13th, and had to conduct an investigation prior to deciding whether to pursue the complaint or to file an amended complaint (an activity normally done prior to the filing of a complaint), it is understandable that some delay in the serving of process occurred. of course, it would be preferable had counsel at a minimum filed a request for extension of the period for service of process prior to the 120 day expiration.
In addition, the confusion of both parties over when the 120-day period began appears to be in good faith. Significantly, defendants have not alleged any bad faith or gamesmanship on the part of Evans in the delay in service. Even more significantly, defendants have not alleged any prejudice as the result of the delay. See Floyd v. U.S., 900 F.2d 1045, 1049 (7th Cir. 1990) ("[W]hen a plaintiff has offered an explanation for noncompliance with [Rule 4(m)] which could support a finding of `good cause,' the absence of prejudice to the defendant is a factor that ought to be considered in assessing whether the explanation offered justifies relief').
Finally, it is worth noting that dismissal for failure to serve process within the 120-day period will not end this case. It simply results in the necessity of re-filing, resulting in needless expense, delay and expenditure of judicial resources. Given that all defendants have now been served, and no prejudice is alleged, defendants' motion to dismiss on the grounds of failure to serve must be denied.
II. Clayton and Kimbrough as Defendants
Defendants allege they are not proper defendants under the FMLA because they are protected by the doctrine of sovereign immunity. Defendants rely on a district court opinion to support this proposition. Johnson v. Runyon, 1999 WL 893841 (W.D.Mich. 1999). Evans responds that the reasoning in Johnson is inapplicable, and cites the statutory language of the FMLA to support his position that individuals may be sued under the FMLA. Both parties' arguments are incorrect as a matter of law.
As an initial matter, there is an uncited wealth of case law and secondary research regarding the issue of whether individual liability exists under the FMLA. See, e.g. David R. Mellon, Individual Liabili as an `Employer' Under the Family and Medical Leave Act, 22 Am. J. Trial Advoc. 449 (1998); Michael L. Ripple, Supervisors Beware: The Family and Medical Leave Act May Be Hazardous to Your Health, 16 J. Contemp. Health L. Pol'y 273 (1999); Stubl v. T.A. Systems, Inc., 984 F. Supp. 1075 (E.D. Mich. 1997); Waters v. Baldwin County, 936 F. Supp. 860 (S.D.Ala. 1996); arid McKiernan v. Smith-Edwards-Dunlap Co., 1995 WL 311393 (E.D.Pa. 1995). This court has addressed the issue of individual liability under the FMLA in four separate cases. Freemon v. Foley, 911 F. Supp. 326 (N.D.Ill. 1995) (Aspen, C.J.); Beyer v. Elkay Mfg. Co., 1997 WL 587487 (N.D.Ill. 1997) (Reinhard, J.); Divizio v. Elmwood Care, Inc., 1998 WL 292982 (N.D.Ill. 1998) (Kocoras, J.), and Llante v. Am. NTN Bearing Mfg. Corp., 1999 WL 1045219 (N.D.Ill. 1999) (Norgle, J.).
Analysis begins with the statute. Evans argues that defendants should be liable because their conduct falls within § 2615(b), which provides, "It shall be unlawful for any person to discharge or in any other manner discriminate against any other individual" (emphasis added) in retaliation for exercising his or her FMLA rights. Even assuming, arguendo, that the alleged acts by defendants are prohibited retaliation, this argument is irrelevant because § 2615 enumerates the acts prohibited by the FMLA. Just because an act is prohibited by the statute, it does not follow that the individual committing the act may be sued in an individual capacity.
Section 2617(a)(1) sets forth who may be liable for a violation of the FMLA. This section provides that, "Any employer who violates section 2615 of this title shall be liable to any eligible employee affected." Section 2611(4) defines "employer" as:
(i) any person engaged in commerce . . . who employs 50 or more employees. . .
(ii) includes — (I) any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer.
The definition of the word "employer" has been the subject of considerable litigation. Several district courts have concluded that no individual liability exists under the FMLA. See Johnson, 1999 WL 893841 (W.D.Mich. 1999); Frizzell v. Southwest Motor Freight, 906 F. Supp. 441 (E.D.Tenn. 1995); Carter v. Rental Uniform Service of Culpepper, Inc., 977 F. Supp. 753 (W.D.Vir. 1997). These courts have analogized liability under the FMLA to Title VII of the Civil Rights Act. See, e.g. Johnson, 1999 WL 893841 at 5. This analysis is flawed. Title VII defines an employer as a person engaged in an industry affecting commerce who employs a certain number of people, "and any agent of such person." 42 U.S.C. § 2000e(b). This language is not contained in the FMLA's definition of "employer."
In contrast, the language of the FMLA "tracks word for word the definition used in the Fair Labor Standards Act ("FLSA")." Freemon, 911 F. Supp. at 330. In addition, the FMLA may be more accurately characterized as a labor statute, akin to the ELSA, than as an anti-discrimination statute, such as Title VII or the Americans with Disabilities Act. See Mellon, supra, at 276. In addition, a Department of Labor regulation provides that individuals acting in the interest of the employer are individually liable under the FMLA. 29 C.F.R. § 825.104(d). For these reasons, this court applies the FLSA's "employer" standard, rather than those urged by Evans and defendants.
An individual may be liable in an ELSA action "provided the defendant had supervisory authority over the complaining employee and was responsible in whole or part for the alleged violation." Riordan v. Kempiners, 831 F.2d 690, 694 (7th Cir. 1987). "Thus, even if a defendant does not exercise exclusive control over all the day-to-day affairs of the employer, so long as he or she possesses control over the aspect of employment alleged to have been violated, the ELSA will apply to that individual." Freemon, 911 F. Supp. at 331 (citations omitted). In evaluating the complaint, the court accepts all well-pled facts alleged in the complaint as true and draws all reasonable inferences in favor of the plaintiff. Baxter Healthcare Corp. v. O.R. Concepts, Inc., 69 F.3d 785, 787 (7th Cir. 1995). Nonetheless, to withstand a motion to dismiss, a complaint must allege facts sufficiently setting forth the essential elements of the cause of action. Gray v. County of Dane, 854 F.2d 179, 182 (71h Cir. 1988). Evans asserts that his complaint alleges defendants committed acts that violate the FMLA. This is untrue. The complaint does not allege any actions taken by defendants Henderson and Porter. As a result, the motion to dismiss these defendants must be granted.
The complaint only alleges acts by defendants Crayton and Kimbrough. The actions alleged include termination of Evans in retaliation for exercising his statutory rights under the FMLA. Complaint, ¶ 28-29. Both Crayton and Kimbrough are alleged to have participated. This is sufficient to allege individual liability under the FMLA. In Freemon, one defendant recommended that the plaintiff be terminated because of an allegedly valid leave of absence under the FMLA. 911 F. Supp. at 331. A second defendant directed a third defendant to suspend the plaintiff.Id. Eventually, the third defendant fired the plaintiff at the direction of the second defendant. Id. The court held these acts to be sufficient for all three to be named individual defendants under the FMLA. Id. "Though [the three defendants] were not directors or officers . . . they nonetheless exercised sufficient control over Plaintiffs ability to take protected leave to qualify as employers under the FMLA." Id.
Similarly, Crayton and Kimbrough's alleged participation in Evans' termination is sufficient to subject them to individual liability under the FMLA. As a result, defendants Clayton and Kimbrough will not be dismissed from the case.
CONCLUSION
For the foregoing reasons, defendants' motion to dismiss for lack of timely service is denied. Defendants' motion to dismiss because the defendants are not proper defendants under the FMLA is granted with respect to defendants Henderson and Porter, and denied with respect to defendants Crayton and Kimbrough.