Wilkinson et al v. Greater Dayton Regional Transit Authority et al

Filing 75

REPORT AND RECOMMENDATIONS - IT IS THEREFORE RECOMMENDED THAT:1. Defendants' Motion for Judgment on the Pleadings (Doc. #24 ) be GRANTED, in part, and Plaintiffs' FMLA claims against Defendant McEntarfer be DISMISSED. 2. Defendants' Motion for Judgment on the Pleadings (Doc. #24 ) be otherwise DENIED. 3. Plaintiffs Motion for Leave to File Second Amended Complaint (Doc. #51 ) be GRANTED, and Plaintiffs be directed to file Second Amended Complaint within ten days of an Order adopting this recommendation. Objections to R&R due by 12/10/2012. Signed by Magistrate Judge Sharon L Ovington on 11/21/12. (kje1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON

MICHELE WILKINSON, et al.,
Plaintiffs,

:
:
:

v.

Case No. 3:11cv00247
District Judge Walter Herbert Rice
Magistrate Judge Sharon L. Ovington

GREATER DAYTON REGIONAL :
TRANSIT AUTHORITY, et al.,
:
Defendants.
:
REPORT AND RECOMMENDATIONS2

I.

Introduction
Plaintiffs Michele Wilkinson, Della Aydelott, Shalonda Egler, Brian Gray,

Rob Phillips, Doug Stauter, Alicia Washington, Rocquel Mitchell are current
employees or former employees of Greater Dayton Regional Transit Authority
(GDRTA). They bring this case against Defendant GDRTA and Defendant Jean
McEntarfer claiming violations of the Family Medical Leave Act of 1993 (FMLA),
as amended, 29 U.S.C. §2601, et seq. Plaintiffs also seek to bring this case a class

2

Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendations.

action, and their First Amended Complaint contains a separate discussion of their
class-action claims. (Doc. #21, PageID at 215-18).
The case is before the court on Defendants’ Motion for Judgment on the
Pleadings (Doc. # 24), Plaintiffs’ Memorandum in Opposition (Doc. #31),
Defendants’ Reply (Doc. # 35), and the record as a whole.

II.

The FMLA And Plaintiffs’ Main Claims
“The FMLA permits qualifying employees to take twelve weeks of unpaid

leave each year if, among other things, the employee suffers from a ‘serious health
condition that makes [her] unable to perform the functions of [her] position[.]’”
Novak v. MetroHealth Med. Ctr., 503 F.3d 572, 578 (6th Cir. 2007) (quoting, in
part, 29 U.S.C. § 2612(a)(1)(D) (brackets in Novak). Under the FMLA, it is
“‘unlawful for any employer to interfere with, restrain, or deny the exercise of or
the attempt to exercise any right provided [by this Act].’” Novak, 503 F.3d at 577
(quoting 29 U.S.C. § 2615(a)(1)).
Plaintiffs claim that Defendants have violated, and for some Plaintiffs,
continue to violate, their FMLA rights in two ways: first, by interfering with their
entitlement to medical leave or family leave; and second, by retaliating against
them for exercising their rights under the FMLA.

2

III.

Defendants’ Motion For Judgment
On The Pleadings And Applicable Standards
Defendants contend that they are entitled to judgment on the pleadings under

Fed. R. Civ. P. 12(c) mainly because they acted as the FMLA permits, because
they did not retaliate against Plaintiffs for exercising their rights under the FMLA,
and because Defendant McEntarfer cannot be held individually liable under the
FMLA.
The pleadings requirements and standards outlined in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 127 S.Ct. 1955 (2007) and Ashcroft v. Iqbal, 556 U.S.
662, 129 S.Ct. 1937 (2009) apply to the task of resolving motions for judgment on
the pleadings Fed. R. Civ. P. 12(c). HDC, LLC v. City of Ann Arbor, 675 F.3d 608,
611 (6th Cir. 2012); see Fritz v. Charter Tp. of Comstock, 592 F.3d 718, 722 (6th
Cir. 2010). The Court “construes the complaint in a light most favorable to the
plaintiff, accepts all factual allegations as true, and determines whether the
complaint states a plausible claim for relief.” HDC, LLC, 675 F.3d at 611
(citations omitted).
A complaint’s factual allegations “need to be sufficient to give notice to the
defendant as to what claims are alleged, and the plaintiff must plead ‘sufficient
factual matter’ to render the legal claim plausible, i.e., more than merely
possible.... However, ‘a legal conclusion couched as a factual allegation’ need not

3

be accepted as true on a motion to dismiss [or a Rule 12(c) motion], nor are
recitations of the elements of a cause of action sufficient.” Fritz, 592 F.3d at 722
(quoting, in part, Iqbal, 556 U.S. at 678-79 (other citations omitted). “In keeping
with these principles a court considering a motion to dismiss [or a Rule 12(c)
motion] can choose to begin by identifying pleadings that, because they are no
more than conclusions, are not entitled to the assumption of truth. While legal
conclusions can provide the framework of a complaint, they must be supported by
factual allegations. When there are well-pleaded factual allegations, a court should
assume their veracity and then determine whether they plausibly give rise to an
entitlement to relief.” Iqbal, 556 U.S. at 679. And, “[a]ccording to the Supreme
Court, ‘plausibility’ occupies that wide space between ‘possibility’ and
‘probability.’” Keys v. Humana, Inc., 684 F.3d 605, 610 (6th Cir. 2012) (quoting,
in part, Iqbal, 556 U.S. at 678). “If a reasonable court can draw the necessary
inference from the factual material stated in the complaint, the plausibility standard
has been satisfied.” Keys, 684 F.3d at 610.
IV.

Discussion
A.

Factual Sufficiency and Plausibility
1.

To state an FMLA interference claim, “a plaintiff must establish that (1) she
was an eligible employee as defined under the FMLA; (2) her employer was a
4

covered employer as defined under the FMLA; (3) she was entitled to leave under
the FMLA; (4) she gave the employer notice of her intention to take FMLA leave;
and (5) her employer denied FMLA benefits to which she was entitled.” Novak,
503 F.3d at 577-78 (citations omitted); see Wysong v. Dow Chemicals, 503 F.3d
441, 447 (6th Cir. 2012). The parties’ present dispute focuses mainly on the fifth
element of an FMLA-interference claim.
Defendants argue that Plaintiffs’ factual allegations, when accepted as true,
fail to show that GDRTA did anything to violate the FMLA. Defendants maintain
that they acted as permitted by FMLA regulations when they (1) advised Plaintiffs
that their medical certifications were incomplete, (2) asked Plaintiffs for additional
information, and (3) asked Plaintiffs for second or third opinions and
recertifications. Defendants conclude, “Thus, even when construed in Plaintiffs’
favor, the alleged facts in the Amended Complaint do not establish that the
[GD]RTA interfered with any of the Plaintiffs’ rights under the FMLA or retaliated
against any of the Plaintiffs for exercising FMLA rights.” (Doc. #24, PageID at
386).
2.
Plaintiffs structure their Amended Complaint by listing their various
theories. They claim, for example, that Defendants:

5

Wrongfully and willfully impos[ed] higher certifications and
notification requirements than permitted under the FMLA by
uniformly finding sufficient medical certifications to be insufficient
and not accepting employees’ notification of foreseeable need for
medical leave as required under the FMLA in order to prevent
employees from exercising their protected rights under the FMLA[.]
(Doc. #21, PageID at 201, ¶ 3(d)).
The Amended Complaint then alleges facts concerning each individual
Plaintiff, beginning with Michele Wilkinson. Plaintiffs’ allegations concerning
Wilkinson make at least one of their FMLA-interference theories plausible –
namely, their theory that Defendants interfered with Wilkinson’s FMLA rights by
wrongfully imposing higher medical-certification requirements than the FMLA
permits.
Accepting Wilkinson’s allegations as true, before 2009 she had taken FMLA
leave without any problem obtaining GDRTA’s approval. Things began to change
in or around January 2009 when Wilkinson “gave GDRTA notice of her continued
need for FMLA leave.” (Doc. #21, PageID at 204). She provided GDRTA with
medical certification sufficient to substantiate her need for FMLA leave due to her
own serious health condition. Id., PageID at 205. GDRTA notified Wilkinson that
it found her medical certification incomplete. It appears that GDRTA did not
approve Wilkinson’s request for FMLA leave at this time. See id.
Later, in or near December 2009, Wilkinson again gave GDRTA with notice
that she needed FMLA leave. One month later she gave GDRTA sufficient
6

medical certification supporting her need to take FMLA leave. Yet Defendant
McEntarfer rejected Wilkinson’s medical certification because the health care
provider had not addressed whether Wilkinson was referred to other health care
providers for evaluation or treatment. Then, on “March 5, 2010, without a reason
for doubting the validity of the medical certification, [Defendants] advised
Wilkinson that it was requiring her to obtain a second opinion.” Id. Defendants
later required Wilkinson to obtain a third medical opinion, and then denied her
request for a brief extension of time to do so even though her physician was out of
town. On November 10, 2010, GDRTA refused to accept Wilkinson’s sufficient
medical certification. And, in the three years following March 2009, GDRTA had
yet to approve any of her post-January 2009 FMLA-leave requests. Id.
Plaintiffs’ allegations describe a series of events, supported by references to
reasonably specific dates, that are sufficient to show that GDRTA wrongfully
interfered with Wilkinson’s requests for FMLA leave after January 2009. “[W]hile
an employer remains free to develop and implement medical leave policies, any
company policy which is more restrictive than the requirements of the FMLA is
not enforceable against the employee.” Harcourt v. Cincinnati Bell Tel. Co., 383
F.Supp.2d 944, 953 (S.D. Ohio 2005) (citing Cavin v. Honda of Am. Mfg., Inc.,
346 F.3d 713, 722-23 (6th Cir. 2003)). “The employer may require an employee to
provide a doctor’s certification confirming the existence of a serious health

7

condition.” Novak, 503 F.3d at 578 (29 U.S.C. § 2613(a)). The FMLA (29 U.S.C.
§2613) and its applicable Regulation (29 C.F.R. §825.307(a)) “establish that the
medical certification provided by the employee is presumptively valid if it contains
the required information and is signed by the health care provider. The burden is
on the employer to establish that the certification is invalid or inauthentic. One of
the goals of the FMLA is to allow an employee to obtain needed medical leave in a
swift and expeditious manner upon presentation of an adequate certification.”
Harcourt, 383 F.Supp.2d at 955-56; see Novak, 503 F.3d at 578. Wilkinson’s
factual allegations, when accepted as true, are sufficient to trigger – at the pleading
stage of this case – the presumption that they provided valid medical certifications
to Defendants on or near certain dates. If discovery bears this out, the burden will
fall upon Defendants to show that Plaintiffs’ medical certifications were invalid or
inauthentic – an issue more appropriately resolved at the summary-judgment stage
of this case or at trial. See Harcourt, 383 F.Supp.2d at 955-56.
Wilkinson alleges that although her initial medical certifications were
sufficient to show her need for FMLA leave, Defendants refused to accept her
medical certifications or approve her FMLA-leave requests and instead required
her to obtain at least additional two medical opinions. In this manner, Defendants
allegedly subjected Wilkinson to higher standards than the FMLA permitted.

8

Plaintiffs’ allegations, therefore, suffice to state a plausible FMLA-interference
claim.
The remaining Plaintiffs’ likewise raise allegations that, when accepted as
true, are sufficient to show that Defendants interfered with their lawful attempts to
take FMLA leave. Detailed iteration of each Plaintiffs’ factual allegations is
unnecessary because for each, Plaintiffs have alleged a similar series of events,
supported by reasonably specific dates, that vary in detail only. It suffices to say at
this stage of the litigation that Plaintiffs have alleged enough facts to show that (1)
each Plaintiff notified Defendants of his or her need to take FMLA leave due to a
serious health condition; (2) each provided Defendants with sufficient medical
certification; (3) Defendants subjected each Plaintiff to higher certification and/or
leave standards than permitted by the FMLA; (4) Defendants required some
Plaintiffs to obtain one or more additional medical opinions, even though those
Plaintiffs had already provided a sufficient medical opinion; and (5) Defendants
denied or ultimately failed to approve each Plaintiff’s FMLA-supported leave
request. Accepting these allegations as true, the Amended Complaint contains
enough facts to render Plaintiffs’ FMLA interference claim “plausible, i.e., more
than merely possible ....” Fritz, 592 F.3d at 722; see Harcourt, 383 F.Supp.2d at
955-56 (“the medical certification provided by the employee is presumptively valid
if it contains the required information and is signed by the health care provider.
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The burden is on the employer to establish that the certification is invalid or
inauthentic.”); cf. Cavin, 346 F.3d at 720-26 (examining at the summary-judgment
stage whether the evidence was sufficient to show the plaintiff adequate notice of
his need for FMLA leave).
3.
Defendants focus on FMLA Regulations that generally permit employers to
take certain actions in response to an employee’s medical certification or request
for FMLA leave. Defendants describe Plaintiffs’ allegations as follows:


Plaintiffs allege that they or their family members suffered from
serious health conditions, and that they provided the [G]DRTA
with notice of their need for FMLA leave. (Am. Compl. ¶¶ 23,
38, 51, 65, 76, 97, 111).



Plaintiffs Wilkinson, Aydelott, Washington, and Mitchell allege
that [G]DRTA approved their requests for leave. (Am. Compl.
¶¶21, 38, 102, 125).



Plaintiffs Wilkinson, Egler, Gray, and Mitchell allege that the
[G]DRTA advised them that one of their medical certifications
were incomplete or that the [G]DRTA needed additional
information. (Am. Compl. ¶¶ 24, 56, 67, 72, 124).



Plaintiffs Wilkinson, Aydelott, Egler, and Gray allege that the
[G]DRTA requested second or third opinions after they
submitted medical certifications (Am. Compl. ¶¶ 27, 30, 37, 41,
46, 58, 61, 67, 137).



Plaintiffs Wilkinson and Gray allege that they [G]DRTA
requested recertification of their need for FMLA leave. (Am.
Compl.¶¶ 31, 68).
10



Plaintiffs Stauter alleges that he was terminated for reaching the
maximum amount of chargeable absences permissible under the
ACP in June 2010. (Am. Compl. ¶¶ 93, 99).



Plaintiff Washington alleges that she received chargeable
absences under the ACP following her use of FMLA leave.
(Am. Compl. ¶ 106)

(Doc. #24, PageID at 385-86). Defendants then argue that accepting these facts as
true fails to show that GDRTA did anything to violate Plaintiffs’ rights under the
FMLA. Defendants reason that FMLA Regulations allowed them (1) to advise
Plaintiffs that their certifications were incomplete, (2) to ask Plaintiffs for
additional information, (3) to ask Plaintiffs for second or third medical opinions,
and (4) to require Plaintiffs to recertify their need for FMLA leave.
The FMLA allows an employer to take one or more of these steps in only
limited circumstances. See Harcourt, 383 F.Supp.2d at 955-56 (“[T]he medical
certification provided by the employee is presumptively valid if it contains the
required information and is signed by the health care provider. The burden is on
the employer to establish that the certification is invalid or inauthentic.”).
Defendants overlook that Plaintiffs’ Amended Complaint, when construed in their
favor, contains sufficient allegations to show that each Plaintiff submitted to
GDRTA one or more medical certifications that were sufficient to demonstrate
their eligibility for, and need to take, FMLA leave. The plausibility of Plaintiffs’
FMLA-interference claim arises from their allegations that despite the sufficiency
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of their medical certifications, Defendants went beyond what the FMLA and its
Regulations permitted by imposing greater medical-certification requirements and
by rejecting their sufficient medical certification. Plaintiffs could certainly have
pled more factual detail in support of their FMLA interference claims, and doing
so might well have advanced the interests of resolving this case in a just, speedy,
and efficient manner. Still, their allegations and Amended Complaint contain “a
short and plain statement…,” Fed. R. Civ. P. 8(a)(2), notifying Defendants of the
factual basis of their plausible FMLA-interference claims. “Although Twombly
and Iqbal clarified that a complaint must state a plausible claim – not just a
possible claim – [the United States Court of Appeals for the Sixth Circuit] has
cautioned against reading ‘Twombly and Iqbal so narrowly as to be the death of
notice pleading….’” Rhodes v. R&L Carriers, Inc., __, Fed.Appx. __, 2012 WL
3156437 at *4 (quoting, Keys v. Humana, Inc., 684 F3d. 605, 609 (6th Cir. 2012)
(other citation omitted). Plaintiffs’ Amended Complaint contains enough facts and
specificity to “nudge[ ] their claims across the line from conceivable to plausible
….” Twombly, 550 U.S. at 569.
4.
Defendants argue that Tucker v. Middleburg-Legacy Health Place, LLC, 539
F.3d 545 (6th Cir. 2008) requires dismissal of Plaintiffs’ FMLA claims. Tucker
involved an employee who was terminated after she took approved FMLA leave.
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The plaintiff claimed that she was terminated for failing to present her employer
with a fitness-for-duty certificate. This was problematic, according to the plaintiff,
because her employer had failed to provide her with the written notice – required
by FMLA Regulation, 28 C.F.R. §825.301 – detailing her obligations to provide a
fitness-for-duty certificate. Tucker, 539 F.3d at 547-49. Without such notice, the
Regulation precludes an employer from taking “action against an employee .…”
Tucker, 539 F.3d at 549 (quoting 29 C.F.R. §825.301(f)).
The Sixth Circuit Court of Appeals concluded in Tucker that judgment on
the pleadings was warranted because the amended complaint failed to contain
sufficient allegations to show that the employer either had a policy that required its
employees to present a fitness-for-duty certificate before returning from FMLA
leave or actually required the plaintiff to provide such a certificate. Without such
allegations, 29 C.F.R. §825.301(f) did not apply to the plaintiff’s situation and did
not prevent the employer from terminating her employment. Tucker, 539 F.3d at
551.
The instant case is distinguished from Tucker in one main way. Plaintiffs,
here, do not raise allegations concerning fitness-for-duty certificates or otherwise
raise a claim under 29 U.S.C. §825.301(f). Consequently, the inadequate factual
allegations in Tucker have no direct correlation with Plaintiffs’ sufficient factual

13

allegations and plausible FMLA claims. And, unlike the plaintiff in Tucker,
Plaintiffs in the instant case have alleged sufficient facts to support their plausible
FMLA-interference claim, as explained previously. As a result, contrary to
Defendants’ contention, Tucker does not require dismissal of Plaintiffs’ Amended
Complaint.
5.
Defendants contend that Plaintiffs’ claims of FMLA interference or
retaliation must be dismissed because they do not allege facts showing they
suffered discipline, prejudice, or a materially adverse action. Defendants argue
that the mere technical infringement of an employee’s FMLA rights does not itself
constitute prejudice, and the employer must take some adverse action based on a
technical violation before an FMLA interference claim becomes viable. These
contentions lack merit.
Plaintiffs have alleged more than mere technical FMLA violations; they
have set forth facts, if true, are sufficient to show that (1) Defendants imposed
higher standards upon Plaintiffs than the FMLA or its Regulations permitted and,
(2) in doing so, they attempted to discourage or chill Plaintiffs from exercising
their FMLA rights. FMLA Regulations specifically provide, “‘Interfering with’
the exercise of an employee’s rights would include, for example, not only refusing
to authorize FMLA leave, but discouraging an employee from using such leave.”
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29 C.F.R. § 825.220(b). Plaintiff Aydelott alleges that although she had taken
approved FMLA leave for several years and in October 2010 provided Defendants
with proper medical certification of her need for continued FMLA leave,
Defendants required her to obtain a second medical opinion without explanation
and without paying her out-of-pocket expenses. Plaintiff Aydelott further alleges
that she provided Defendants with three physicians’ opinions supporting her need
to take FMLA leave, but Defendants asked her to obtain another medical opinion
without providing an explanation. (Doc. #21, PageID at 206-07). Similarly,
Defendants allegedly sought repeated medical opinions without explanation in
violation of the FMLA as to other Plaintiffs who had provided sufficient medical
certifications, including, for example, Plaintiffs Egler and Grey. Id., PageID at
207-10. In this manner, Plaintiffs have supported their FMLA-interference claims
with sufficient allegations to show that Defendants deprived Plaintiffs of leave they
were due under the FMLA and to show that Defendants acted so as to discourage
Plaintiffs from exercising their right to take FMLA leave when it was medically
justified. See Novak, 503 F.3d at 577-78 (identifying element 5 of an FMLAinterference claim as “employer denied FMLA benefits to which she was
entitled.”); see also Saroli v. Automation & Modular Comp., Inc., 405 F.3d 446,
454 (6th Cir. 2004); Harcourt, 383 F.Supp.2d at 961-62.

15

Defendants further maintain that Plaintiffs have failed to allege any adverse
action in support of their FMLA-retaliation claim. Defendants emphasize that a
“mere inconvenience” or a “bruised ego” is not a materially adverse employment
action. (Doc. #24, PageID at 390). Plaintiffs, however, have done enough to
show, at this stage of the litigation, that Defendants’ misconduct resulted in
adverse employment action. Plaintiffs allege that Defendants terminated Plaintiff
Stauter’s employment for exceeding the number of absences allowed under
GDRTA’s leave policies even though he sought and was entitled to take FMLA
leave. Termination of employment is perhaps the most adverse employment action
an employer can take. In addition, Plaintiffs Egler and Mitchell have allegedly
suffered financial harm because GDRTA has not reimbursed them for the out-ofpocket expenses they incurred in obtaining additional medical opinions.
Defendants have allegedly imposed involuntary FMLA leave on Plaintiff Mitchell,
thus causing her to lose pay during those work absences. Given these and other
allegations in Plaintiffs’ Amended Complaint, they have raised enough factual
allegations to show adverse employment action.
B.

Plaintiff Stauter’s Allegations

According to Defendants, Plaintiff Stauter’s own allegations show that he
cannot state a claim for FMLA interference or retaliation because he admittedly
did not request leave until one month after the absences that led to his termination.
16

Defendants, however, overlook that GDRTA terminated Stauter’s employment
because of his absenteeism without considering his pending application for FMLA.
If that application had been approved, under Plaintiffs’ version of the events, it
would have covered at least some of the absences in June 2010 that led to Stauter’s
termination. Plaintiffs’ allegations are therefore sufficient to raise plausible claims
that Defendants interfered with Stauter’s FMLA rights by not considering or
granting his request for FMLA leave and retaliated against him because he sought
FMLA leave, an inference made reasonable by the allegation that Defendants
terminated Stauter’s employment at or very near the time he sought FMLA leave.
In order to prevail on an FMLA interference claim, an employee must give
her employer notice of her intent to take FMLA leave. Novak, 503 F.3d at 577-78.
Defendants argue that because the Complaint shows that Plaintiff Stauter did not
give timely notice, as is required by the FMLA, his interference claim must be
dismissed. However, Plaintiffs’ Complaint sets out allegations that, if true, might
alleviate Stauter’s need to have provided GDRTA with notice. In their Complaint,
Plaintiffs allege that “GDRTA requires its employees to incur an absence before
employees are allowed to apply for FMLA” leave. (Doc. # 21 at ¶ 85). Assuming,
without deciding, that Stauter did not provide timely notice to GDRTA, it is
plausible that the above GDRTA policy could have prevented Stauter from giving
notice within the period that is normally considered timely under the FMLA.

17

Therefore, because GDRTA’s own policy might have prevented Stauter from
giving timely notice, Defendants’ contention that Plaintiff Stauter’s interference
claim must be dismissed is not well taken.

C.

Defendant McEntarfer

A person may be individually liable under the FMLA if he or she meets the
FMLA’s definition of an “employer.” Mitchell v. Chapman, 343 F.3d 811, 827
(6th Cir. 2003). Such individual liability can arise because the FMLA defines
“employer,” in part, as “‘any person who acts, directly or indirectly, in the interest
of the employer.’” Mitchell, 343 F.3d at 827 (citation omitted).
But, “the FMLA’s individual liability provision does not extend to public
agencies.” Mitchell, 343 F.3d at 832. The individual defendants in Mitchell were
employees of the U.S. Postal Service. Because the U.S. Postal Service was within
the FMLA’s definition of “public agency,” the FMLA’s individual liability
provisions did not expose them to individual liability. Id. at 832-33.
Relying on Mitchell, and a number of federal cases within the Southern
District of Ohio, Defendants argue that Plaintiffs claims against Defendant
McEntarfer fail because the FMLA’s individual liability provisions do not extend
to employees of public agencies, including Defendant McEntarfer.
Plaintiffs contend that Defendant McEntarfer is an employee of a Regional
Transit Authority, not a public agency, and she can therefore be held individually
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liable under the FMLA. Plaintiffs point out that the individual defendants in
Mitchell were employees of a public agency – the U.S. Postal Service – “clearly a
‘public agency’ as defined by the FMLA.” In contrast, GDRTA “is not a pure
‘public agency’ under the Act.” (Doc. #31, PageID at 692).
The issue presented is whether GDRTA is a “public agency” as defined
under the FMLA. If so, Defendant McEntarfer’s status as a GDRTA employee
excludes her from incurring individual liability under the FMLA. Mitchell, 343
F.3d at 832-33.
The FMLA defines “public agency” as follows:
“Public agency” means the Government of the United States,
the government of a State or political subdivision thereof; any agency
of the United States (including that United States Postal Service and
Postal Rate Commission), a State, or a political subdivision of a State;
or any interstate governmental agency.
29 U.S.C. §203(x); see 29 U.S.C. §2611(4)(A)(iii).
In Mitchell, the individual potentially liable under the FMLA was a
supervisor with the defendant United States Postal Service. Because the
United States Postal Service fell squarely within the definition of “public
agency” under 29 US.C. §203(x), Mitchell itself provides no insight into
whether GDRTA is a “public agency” or, in turn, whether a Regional Transit
Authority employee or supervisor like McEntarfer benefits from Mitchell’s
no-individual-liability rule. The same is true of many of the cases

19

Defendants cite because the defendant entities in those cases – e.g., the Ohio
Department of Mental Health, the Ohio Department of Rehabilitations and
Corrections – fit squarely within the state or state-agency categories of the
“public agency” definition. See Doc. #24, PageID at 393 (and cases cited
therein); see also Doc. #35, PageID at 716-17 (and cases cited therein).
And, the FMLA’s “public agency” definition, 29 U.S.C. §203(x), does not
specifically include or exclude a Regional Transit Authority, like GDRTA.
So, the issue persists: Is GDRTA a “public agency” within the
meaning of the FMLA? It is obviously not within the federal categories in
29 U.S.C. §203(x): it is neither the Government of the United States nor an
agency of the United States. Yet, it might be a political subdivision of the
State of Ohio. Ohio statutory law leans towards this result.
Under Ohio Rev. Code §306.31, “A regional transit authority may be
created in the manner provided in section 306.32 of the Revised Code, for
any one or more of the following purposes: . . . accepting assignment of and
exercising a right to purchase a transit system in accordance with the
acquisition terms of an existing franchise agreement. A regional transit so
created is a political subdivision of the state ….”
Plaintiffs contend, “Ohio courts have held that employees of a regional
transit authority are not public employees, except for the limited purpose of sharing

20

the benefits of the Public Employees Retirement Systems.” (Doc. #31, PageID at
692). Plaintiffs argue, quoting Spitaleri v. Metro RTA, 67 Ohio App.2d 57, 61-62
(1980), “Here [GDRTA] is a regional transit authority created by O.R.C. §306.31,
and thus is a ‘hybrid entity which purposefully defies categorization.’ Given that
[GD]RTA’s status as a ‘public agency’ under the FMLA is hybrid, the holding in
Spitaleri, and that McEntarfer was acting directly or indirectly in the interest of
[GDRTA] in the corporate sense, Mitchell does not provide the safe harbor that
McEntarfer seeks.” (Doc. #31, PageID at 692).
Plaintiffs’ reliance on Spitaleri is misplaced. Spitaleri did not specifically
address whether the GDRTA qualified as a political subdivision under Ohio Rev.
Code §306.31 for all purposes. Instead, the analysis in Spitaleri began with the
recognition that Metro, a Regional Transit Authority, “is a political subdivision of
the state ([Ohio] R.C. 306.31) with broad ‘government-like’ powers and duties
([Ohio] R.C. 306.35(H), (I), (J), and (K)).” 67 Ohio App.3d at 60. This did not
resolve the issues in Spitaleri: whether certain employees of Metro were entitled
statutory benefits (e.g., vacation leave or sick leave) available under Ohio statutory
law to public employees of the State of Ohio.
In contrast, the issue in the present case concerns the meaning of “public
agency” and “political subdivisions” under the FMLA, issues of federal law that

21

are distinct from the particular issues of Ohio law Spitaleri resolved.1 In other
words, Spitaleri did not address the specific issue presented here: whether
GDRTA fits the definition of a “public agency” under the FMLA, 29 U.S.C. §§
203(x), 2611(4)(A)(iii). This federal-definitional issue presents a question of
federal law. Cf. Moir v. Greater Cleveland Regional Transit Authority, 895 F.2d
266, 270 (6th Cir. 1990)(“Federal law governs the determination of whether an
‘entity created under state law is a ‘political subdivision’ of the State, and therefore
exempt from ‘employer’ status under the NLRA [National Labor Relations Act],
29 U.S.C. §185(a).” (quoting, in part, National Labor Relations Board v. Natural
Gas Utility Dist. of Hawkins Cnty., Tenn., 402 U.S. 600, 603 (1971)).2
Few cases address whether a Regional Transit Authority or similar entity
created under state law constitutes a “public agency” or a state “political
subdivision” under the FMLA. Instructive cases, such as Natural Gas, 402 U.S. at
603 and Moir v. Greater Regional Transit Authority, 895 F.2d 266, 271-72 (6th
Cir. 1990) arise in the context of federal labor law. The analysis in those cases of
whether an entity is a “political subdivision” considers if the entity was “‘(1)

1

The same FMLA-grounded conclusion applies to the other Ohio case upon which Plaintiffs
rely. See Gehring v. Miami Valley Regional Transit Authority, 1983 WL 4896 (Ohio Ct. App.,
2nd Dist., 1983).
2

“Public employees of the political subdivisions of a state are not governed by the federal labor
laws.” N.A.A.C.P. v. Detroit Police Officers Assn., 821 F.2d 328, 332 (6th Cir. 1987).

22

created directly by the state, so as to constitute departments or administrative arms
of the government, or (2) administered by individuals who are responsible to
public officials or to the general electorate.’” Moir, 895 F.2d at 271 (quoting
Natural Gas, 402 U.S. at 604-05). GDRTA was created by the same Ohio statute
as the Cleveland Regional Transit Authority in Moir as “a political subdivision of
the state.” Moir, 895 F.2d at 271 (quoting Ohio Rev. Code §306.31). This
“weighs heavily in favor of finding” that GDRTA is a political subdivision under
the FMLA. See id. In addition, like the Cleveland Regional Transit Authority in
Moir, GDRTA is responsible to a board of trustees appointed by various county
and municipal officials. See Ohio Rev. Code §306.33; see also Moir, 895 F.2d at
271-72. Consequently, GDRTA is a “political subdivision” and hence a “public
agency” under the FMLA (29 U.S.C. §203(x)). See Moir, 895 F.2d at 271-72; see
also Broyles v. City of Dayton, 1997 WL 1764763 at *10 n.11 (S.D. Ohio 1997)
(Rice, D.J.) (“Defendant RTA is a regional transit authority created pursuant to
O.R.C. §306.31, and is therefore a ‘political subdivision of the state.’...”); Kollstedt
v. Princeton City Sch. Bd. of Educ., 2010 WL 597825 at *4 (S.D. Ohio Feb. 17,
2010)(Spiegel, D.J.) (“[T]he Sixth Circuit’s decision in Mitchell is a reasoned one,
grounded in statutory analysis and informed by views to the contrary in other
circuits. This Court cannot simply ignore it on the basis that other circuits have
engaged in the same process to reach the opposite result.”).

23

Accordingly, the FMLA’s individual liability provision does not apply to
Defendant McEntarfer because she is an employee of a public agency, GDRTA.
See Mitchell, 343 F.3d at 832; see also Moir, 895 F.2d at 271-72; Broyles, 1997
WL 1764763 at *10 n.11.

V.

Motion For Leave To Amend Complaint
Plaintiffs have filed a Motion for Leave to File Second Amended Complaint

(Doc. #51), to which Defendants have not specifically responded. Plaintiffs seek
to amend their First Amended Complaint to (1) remove Plaintiff Rob Phillips and
(2) raise claims of discriminatory discharge and retaliation concerning Plaintiffs
Brian Gray and Rocquel Mitchell.
In the absence of a specific response by Defendants, and because leave to
amend a complaint is freely granted as justice so requires, see Fed. R. Civ. P.
15(a), Plaintiffs’ Motion for Leave to Amend is well taken.
IT IS THEREFORE RECOMMENDED THAT:
1.

Defendants’ Motion for Judgment on the Pleadings (Doc. #24) be
GRANTED, in part, and Plaintiffs’ FMLA claims against Defendant
McEntarfer be DISMISSED;

2.

Defendants’ Motion for Judgment on the Pleadings (Doc. #24) be
otherwise DENIED; and

3.

Plaintiffs’ Motion for Leave to File Second Amended Complaint
(Doc. #51) be GRANTED, and Plaintiffs be directed to file their

24

Second Amended Complaint within ten days of an Order adopting this
recommendation.

November 21, 2012
s/ Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge

25

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within fourteen days after
being served with this Report and Recommendations. Pursuant to Fed. R. Civ. P.
6(d), this period is extended to seventeen days because this Report is being served by
one of the methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F).
Such objections shall specify the portions of the Report objected to and shall be
accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record
at an oral hearing, the objecting party shall promptly arrange for the transcription of
the record, or such portions of it as all parties may agree upon or the Magistrate Judge
deems sufficient, unless the assigned District Judge otherwise directs. A party may
respond to another party’s objections within fourteen days after being served with a
copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights
on appeal. See United States v. Walters, 638 F.2d 947 (6th Cir. 1981); Thomas v.
Arn, 474 U.S. 140 (1985).

26