Murphy v. Volt Information Sciences, Inc. et al

Filing 42

OPINION AND ORDER: I therefore ADOPT Judge Hubels Findings and Recommendations 35 as my own opinion. Signed on 9/24/13 by Judge Michael W. Mosman. (dls)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
SHERI MURPHY,
No. 3:13-cv-00086-HU
Plaintiff,
OPINION AND ORDER
v.
VOLT INFORMATION SCIENCES, INC., a
New York Company, UNITED STATES OF
AMERICA, acting by and through the
Department of Energy and Bonneville Power
Administration, and STEPHEN CHU, Secretary
of the Department of Energy,
Defendants.
MOSMAN, J.,
On June 25th, 2013, Magistrate Judge Hubel issued his Findings and Recommendation
(“F&R”) [35] in the above-captioned case, recommending that the United States and Secretary
Stephen Chu’s (“the Government”) motion to dismiss be denied. The Government objected [38],
and plaintiff responded [41].
DISCUSSION
The magistrate judge makes only recommendations to the court, to which any party may
file written objections. I am not bound by the recommendations of the magistrate judge; instead,
I retain responsibility for making the final determination. I am required to review de novo those
portions of the report or any specified findings or recommendations within it to which an
1 – OPINION AND ORDER

objection is made. 28 U.S.C. § 636(b)(1). However, I am not required to review, de novo or
under any other standard, the factual or legal conclusions of the magistrate judge as to those
portions of the F&R to which no objections are addressed. See Thomas v. Arn, 474 U.S. 140,
149 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). While the level
of scrutiny under which I am required to review the F&R depends on whether objections have
been filed, in either case I am free to accept, reject, or modify any part of the F&R. 28 U.S.C.
§ 636(b)(1).
Upon review, I agree with and adopt Judge Hubel’s F&R. I write further to address the
Government’s objection that Congress did not waive sovereign immunity with respect to “joint
employer” claims against federal agencies. (Objections to F&R [38] at 2–3.) The Government
argues that all employees of the Bonneville Power Administration (“BPA”) are either covered
under Title II of the Family Medical Leave Act or not covered at all. (Id. at 2, 5; Reply [27] at
2.) It accuses plaintiff of trying to use the “joint employer” provision of the implementing
regulations to bring a Title I suit against BPA, when BPA’s employees are categorically subject
to Title II. On this basis, it argues that Congress did not intend to waive sovereign immunity
with respect to “joint employer” claims against federal agencies.
The Government’s objection is chasing a red herring. Whether Title I or Title II applies
does not turn on the nature of the employer, but on the nature of the employee. Title II covers
federal civil service employees who meet certain statutory requirements. 5 U.S.C. §§ 2105(a),
6301(2), 6381(1); Russell v. U.S. Dep’t of the Army, 191 F.3d 1016, 1018 & n.1 (9th Cir. 1999).
All other employees of the federal government are covered by Title I. 29 U.S.C. § 2611(2)(B)(i);
29 C.F.R. § 825.109(c); Russell, 191 F.3d at 1018. As Judge Hubel noted, the parties agree that
plaintiff was not a Title II employee. (F&R [35] at 15.) It follows necessarily that she is covered

2 – OPINION AND ORDER

under Title I, if she can prove its eligibility requirements. From there, it follows further that she
can bring an FMLA cause of action against BPA if the agency was her “employer” under Title I.
Once plaintiff’s status as a Title I employee is established, that Murphy’s claim falls
under Title I’s waiver of sovereign immunity also becomes clear. Congress waived immunity as
to suits by Title I employees against “any employer,” including public agencies. 29 U.S.C.
§§ 2617(a)(1), (a)(2). The definition of “employer” includes federal agencies like BPA. 29
U.S.C. §§ 203(x), 2611(4)(A)(iii), (4)(B). The Government advances no reason to entertain the
notion that “any employer” does not include joint employers. Indeed, as Judge Hubel pointed
out, absent a specific exception, the waiver of immunity as to suits against “any employer”
necessarily encompasses suits against joint employers. (F&R [35] at 15.)
I therefore ADOPT Judge Hubel’s Findings and Recommendations [35] as my own
opinion.
IT IS SO ORDERED.
DATED this

24

day of September, 2013.

/s/Michael W. Mosman
MICHAEL W. MOSMAN
United States District Judge

3 – OPINION AND ORDER