Roberts v. Eastern Oklahoma Medical Center, Inc.
Filing
40
OPINION AND ORDER by Magistrate Judge Kimberly E. West : DENYING 31 Defendants' Motion to Dismiss. Plaintiff shall file a Second Amended Complaint no later than 4/2/14. (neh, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
MARY C. ROBERTS, an individual,
Plaintiff,
v.
LEFLORE COUNTY HOSPITAL
AUTHORITY d/b/a EASTERN
OKLAHOMA MEDICAL CENTER, INC.;
ROBERTA CHERYL CRAIG,
individually and in her
official capacity;
MELINDA DAVIS, individually
and in her official capacity;
and MICHELE D. OGELSBY,
individually and in her
official capacity,
Defendants.
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OPINION AND ORDER
This matter comes before the Court on Defendants’ Motion to
Dismiss (Docket Entry #31).
Plaintiff Mary C. Roberts (“Roberts”)
originally filed this action on April 26, 2013 and subsequently
amended
the
Complaint
Complaint
states
that
on
it
July
11,
“seeks
2013.
The
declaratory
First
Amended
relief,
actual,
equitable and liquidated damages, and costs and attorney fees, for
violations of the Family and Medical Leave Act, 29 U.S.C. §§ 2611,
et seq. and for unpaid wages under Oklahoma law.”
It further
states that each of the Defendants meet the definition under the
Family and Medical Leave Act (“FMLA”) of an “employer.”
Defendant
LeFlore County Hospital Authority d/b/a Eastern Oklahoma Medical
Center, Inc.1 (“EOMC”) allegedly meets the definition by employing
in excess of fifty (50) employees during each of twenty (20) or
more calendar workweeks in the current preceding calendar year.
Defendants Roberta Cheryl Craig (“Craig”), Melinda Davis (“Davis”),
and Michele D. Ogelsby (“Oglesby”)2 allegedly meet the definition
of an “employer” under 29 U.S.C. 2611(4)(A)(ii)(I) in that they
“acted, directly or indirectly, in the interest of an employer to
any of the employees, including Plaintiff, of such employer.”
In summary, Roberts alleges that on or about August 28, 2008,
she became employed by EOMC as Lead Sonographer.
On December 13,
2012, Roberts became ill and was admitted to the hospital on
December 14, 2012 for emergency surgery.
Roberts contends she
informed her manager, Craig, of her need for FMLA leave.
On
December 17, 2012, Oglesby, the Human Resources Manager for EOMC,
completed Roberts’ paperwork.
Roberts asserts she stayed in
contact with EOMC “periodically during her leave.”
On January 7, 2013, Roberts was released to return to work.
Roberts claims that upon her return, she was demoted, transferred
to Saturday, Sunday, and Wednesday night shifts, her hours were
1
Defendant EOMC states that Roberts erroneously identified this
Defendant as “Eastern Oklahoma Medical Center, Inc.” when the entity is,
in fact, not incorporated. Should this be the case, Roberts shall amend
the First Amended Complaint and correctly identify this Defendant.
2
Defendant Oglesby states in the Motion that she is mis-identified
in Robert’s First Amended Complaint as “Michele D. Ogelsby.” Presuming
this Defendant knows the correct spelling of her name, Roberts shall
amend the First Amended Complaint to correctly name this Defendant.
2
cut, and she was specifically advised by Craig that she was “going
to teach her to be a team player.”
Roberts states that she advised
EOMC that she could not work the night shifts “due to her family
situation.”
leave it.”
Roberts contends she was instructed to “take it or
Roberts alleges she had no alternative but to resign
her position with EOMC.
On January 9, 2012, she submitted a
resignation letter and reported the violations to Oglesby in the
Human Resources department.
She also alleges she reported the
problem to EOMC’s CEO, Davis.
On January 25, 2013, Davis upheld
the resignation after investigating Roberts’ complaint of FMLA
violations.
Roberts asserts she received a performance evaluation in July
of 2012 and was advised she would receive a 3% raise but never
received the additional amount.
provide
her
with
her
pay
She also alleges EOMC failed to
within
a
reasonable
time
of
her
termination of employment as required by the Oklahoma Wage and Hour
laws.
In her first claim for relief entitled “Interference with a
Protected Right in Violation of 29 U.S.C. § 2615,” Roberts alleges
she was entitled to 12 weeks of leave because she suffered from a
serious health condition that made her unable to perform the
functions of her position. She alleges that she was terminated for
exercising this right to leave, seeking monetary damages and
reinstatement.
Roberts specifically states that she seeks money
3
damages against Craig, Davis, and Oglesby in their individual
capacities
and
a
claim
for
equitable
damages,
including
reinstatement, against Craig, Davis, and Oglesby in their official
capacities.
In her second claim for relief entitled “Termination in
Violation of 29 U.S.C. § 2615 et seq.,” Roberts claims that
Defendants terminated her employment after receiving notice of her
serious medical condition in violation of the FMLA.
She makes a
claim for money damages against Craig, Davis, and Oglesby in their
individual capacities and a claim for equitable damages, including
reinstatement, against Craig, Davis, and Oglesby in their official
capacities.
In her third claim for relief entitled “Unpaid Wages in
Violation of 20 O.S. § 165.3 - 165.9,” Roberts asserts EOMC has
failed to pay all of the wages she is due subsequent to her
termination. Roberts also seeks liquidated damages for the alleged
failure to pay wages as well as costs and attorney’s fees.
With all three claims, Roberts seeks (1) a declaration that
the conduct in which Defendants engaged violated Roberts’ rights;
(2) an injunction to prevent Defendants from engaging in the
conduct alleged; (3) a judgment for Roberts in an amount in excess
of $100,000.00 (with the exception of the third claim which seeks
an amount in excess of $10,000.00), costs, attorney’s fees, and
liquidated damages; and (4) with regard to the first two claims,
4
reinstatement to her former position or front pay in lieu of
reinstatement.
Through their pending Motion, Defendants first contend that
this Court lacks subject matter jurisdiction over Roberts’ First
and Second Claims for relief, asserting they are immune from
liability under the Self-Care Provision of the FMLA.
of
Eleventh
Amendment
immunity
implicates
the
An assertion
subject
matter
jurisdiction of the Court. Dismissal under this theory, therefore,
is sought pursuant to Fed. R. Civ. P. 12(b)(1).
motions generally take one of two forms:
Rule 12(b)(1)
(1) a facial attack on
the sufficiency of the complaint's allegations as to subject matter
jurisdiction; or (2) a challenge to the actual facts upon which
subject matter jurisdiction is based.
Holt v. United States, 46
F.3d 1000, 1002-03 (10th Cir. 1995) (citation omitted). Defendants
challenge the factual basis upon which Roberts asserts subject
matter jurisdiction.
Although it is unnecessary in relation to
this particular Motion, under Rule 12(b)(1), the court is given
wide discretion to consider affidavits, documents, and even hold a
limited evidentiary hearing in making appropriate factual findings
on jurisdictional issues. Wheeler v. Hurdman, 825 F.2d 257, 259 n.
5 (10th Cir. 1987).
As with any jurisdictional issue, the party
bringing suit bears the burden of proving that sovereign immunity
has been waived.
James v. United States, 970 F.2d 750, 753 (10th
Cir. 1992).
5
Defendants rely primarily upon the case of Coleman v. Court of
Appeals of Maryland, 132 S.Ct. 1327 (2012) to assert that the FMLA
does
not
represent
a
congressional
abrogation
of
a
state’s
sovereign immunity to be sued for violations of the Act.
It is
clear from the facts presented that Roberts only asserts a claim
under
the
FMLA’s
Self-Care
Provision
found
at
29
U.S.C.
§2612(a)(1)(D), which permits an employee to take leave “[b]ecause
of a serious health condition that makes the employee unable to
perform the functions of the position of such employee.”
In Coleman, the United States Supreme Court determined that
the Self-Care Provision of the FMLA did not abrogate a state’s
Eleventh Amendment sovereign immunity. In order to do so under the
Fourteenth Amendment, Congress is required to identify more than a
“theory for why abrogating the States’ immunity aids in, or
advances, a stated congressional purpose.” Instead, “Congress must
identify a pattern of constitutional violations and tailor a remedy
congruent and proportional to the documented violations.”
The
Supreme Court found Congress fell short in doing so under the SelfCare Provision of the FMLA.
Coleman, 132 S.Ct. at 1338.
As a
result, it is clear Roberts cannot seek monetary damages against
the admitted agency of the State of Oklahoma, EOMC.
Roberts
has
attempted,
however,
remedies sought in this action.
to
carefully
craft
the
She only seeks monetary damages
from EOMC in her Third Claim for Relief based upon a violation of
6
state law - the non-payment of wages under the protections of Okla.
Stat. tit. 40 §§ 165.3-165.9.
Despite some inarticulate language
in the prayers of the First and Second Claims for Relief in the use
of the term “Defendants”, Roberts expressly limits her relief under
the FMLA to the individual Defendants acting individually and
officially.
The relief sought from the individual Defendants has two
components - monetary damages against them in their individual
capacities and prospective equitable relief against them in their
official
capacities.
Each
perspective
will
be
examined
for
viability under the theory espoused in Coleman.
The Tenth Circuit has not squarely answered the question
presented as to whether a public employee can be held individually
liable for monetary damages under the FMLA.
Currently, a split
exists between the Circuits on this issue.
Compare Modica v.
Taylor, 465 F.3d 174, 184–86 (5th Cir. 2006) (individual public
employees fall within (ii)(I) and may be liable), and Darby v.
Bratch, 287 F.3d 673, 680–81 (8th Cir. 2002), with Mitchell v.
Chapman, 343 F.3d 811, 832 (6th Cir. 2003) (individual public
employees do not fall within (ii)(I) and may not be liable), and
Wascura v. Carver, 169 F.3d 683, 687 (11th Cir. 1999).
See also
Gray v. Baker, 399 F.3d 1241, 1246–47 (10th Cir. 2005)(court lacked
interlocutory
appellate
jurisdiction
over
issue
of
individual public employees may be liable under FMLA).
7
whether
The question turns upon whether the FMLA’s definition of an
employer encompasses individual supervisors and other such persons
with managerial authority.
The FMLA specifically defines an
“employer” as follows:
(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 Government Accountability 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).
Before
Coleman,
the
Tenth
Circuit
determined
that
state
employees from whom monetary damages are sought in their individual
capacities under the FMLA cannot enjoy Eleventh Amendment immunity
simply because the state may ultimately satisfy any judgment
8
against them. Cornforth v. Univ. of Okla. Bd. of Regents, 263 F.3d
1129, 1132-33 (10th Cir. 2001).
The court, however, did not reach
the issue of whether the public employee could be held individually
liable, although it would appear to be an academic exercise to
reach the conclusion in Conforth if individual liability could not
be conferred on public employees.3
This Court finds persuasive the arguments contained in the
unpublished case of Jeffers v. Redlands Comm. College Bd. of
Regents, 2012 WL 137412 (W.D. Okla.) on this issue.
The court in
Jeffers sided with the Eighth and Fifth Circuits in finding the
FMLA’s definition of “employer” to be inclusive and, therefore,
permitting a suit against individuals, presuming they factually
meet the definition of one who “acts, directly or indirectly, in
the interest of a[] [public] employer to any of the employees of
such employer.”
748
F.Supp.2d
See also Saavedra v. Lowe’s Home Centers, Inc.,
1273,
1291
(D.N.M.
2010)(“The
breadth
of
the
statute's plain language suggests that almost any person who ‘acts
. . . in the interest of the employer’ as to ‘any of the employees’
would
qualify
as
an
‘employer.’”).
This
Court,
therefore,
concludes that Roberts may pursue Craig, Davis, and Oglesby in
3
In a similar vein, the Tenth Circuit in Gray v. Baker, 399 F.3d
1241 (10th Cir. 2005) declined to exercise interlocutory appellate
jurisdiction over a case in which this same issue arose.
9
their individual capacities for monetary damages under the FMLA.4
Roberts also seeks prospective equitable relief against Craig,
Davis, and Oglesby in their official capacities.
In order to fall
within an exception for Eleventh Amendment immunity, the relief
sought
must
doctrine.
satisfy
the
exception
under
the
Ex
Parte
Young5
Under Ex Parte Young, a claim which seeks prospective
relief to end a continuing violation of federal law against an
official acting in his official capacity is not barred by the
Eleventh Amendment. Diaz v. Michigan Dept. of Corr., 703 F.3d 956,
964 (6th Cir. 2013).
A claim for reinstatement constitutes
prospective relief. Id. Roberts’ claims against Craig, Davis, and
Oglesby in their official capacities meet the Ex Parte Young
criteria as they are expressly limited to prospective equitable
relief in the form of reinstatement and injunctive relief to
preclude future violations of her FMLA rights.
Defendants also raise a claim for dismissal based in Fed. R.
Civ. P. 12(b)(6) which is strikingly identical to that raised under
Rule 12(b)(1) except it employs the plausibility standard utilized
in analyzing dismissal under that Rule 12(b)(6). Defendants employ
the old standard for evaluating Rule 12(b)(6) motions of the
4
For the first time in their reply, Defendants contend their
positions did not function in such a way as to qualify them as
“employers” under the FMLA.
This Court lacks sufficient factual
development to reach this question. The First Amended Complaint contains
sufficient information to conclude the individual Defendants meet the
definition of under the FMLA.
5
209 U.S. 123 (1908).
10
inability to prove no set of facts to support the claims in the
complaint.
The correct standard for evaluating Roberts’ First
Amended Complaint is the plausibility standard enunciated in United
States Supreme Court cases of Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009).
Clearly, Bell Atlantic changed the legal analysis applicable
to dismissal motions filed under Fed. R. Civ. P. 12(b)(6), creating
a “refined standard” on such motions.
Khalik v. United Airlines,
671 F.3d 1188, 1191 (10th Cir. 2012)(citation omitted).
Bell
Atlantic stands for the summarized proposition that “[t]o survive
a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim for relief that is
plausible on its face.’”
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949
(2009) quoting Bell Atlantic, 550 U.S. at 570.
The Supreme Court
did not parse words when it stated in relation to the previous
standard that “a complaint should not be dismissed for failure to
state a claim unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle
him to relief” is “best forgotten as an incomplete, negative gloss
on an accepted pleading standard.”
Bell Atlantic,
550 U.S. at
546.
The Tenth Circuit has interpreted the plausibility standard as
referring “to the scope of the allegations in the complaint:
if
they are so general that they encompass a wide swath of conduct,
11
much of it innocent, then the plaintiffs ‘have not nudged their
claims across the line from conceivable to plausible.’” Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008).
The Bell Atlantic
case, however, did not intend the end of the more lenient pleading
requirements of Fed. R. Civ. P. 8(a)(2). Khalik, 671 F.3d at 1191.
Rather, in Khalik, the Tenth Circuit recognized the United States
Supreme Court’s continued endorsement of Rule 8's “short and plain
statement” requirement in the case of Erickson v. Pardus, 551 U.S.
89 (2007) wherein the Supreme Court found “[s]pecific facts are not
necessary; the statement need only ‘give the defendant fair notice
of what the . . . claim is and the grounds upon which it rests.’”
Id. at 93. Against this backdrop, Roberts’ First Amended Complaint
meets the plausibility standard and is not subject to dismissal
under Rule 12(b)(6).
Moreover, given this Court’s ruling on the
legal viability of the claims against Defendant, the First Amended
Complaint is not subject to dismissal as a matter of law.
Again for the first time, the individual Defendants raise
qualified immunity as a defense in their reply to their Motion.
Proceeding on a new issue in this fashion is prohibited by this
Court’s local rules.
EDOK LcvR 7.1(k)(“Reply briefs regarding new
matter in the response brief may be filed . . . .”).
Qualified
immunity was not raised in either the Motion or Roberts’ Response.
Even
if
this
Court
were
inappropriate at this time.
to
consider
the
issue,
it
is
The individual Defendants raise
12
qualified immunity in the context of Roberts’ having no legal basis
for bringing a claim for monetary relief against them in light of
Coleman. This Court has found such legal authority does exist and,
therefore, the claim of qualified immunity in the manner and form
raised by the individual Defendants is not appropriate.
IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss
(Docket Entry #31) is hereby DENIED.
IT IS FURTHER ORDERED that Plaintiff Mary C. Roberts shall
file
a
Second
Amended
Complaint
correcting
the
spelling
and
identity of the named Defendants as further explained herein no
later than APRIL 2, 2014.
IT IS SO ORDERED this 26th day of March, 2014.
______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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