Joey L. Mitchell v. Glenn Chapman

*The Honorable Peter C. Economus, United States District Judge for
the Northern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0325P (6th Cir.)
File Name: 03a0325p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
JOEY L. MITCHELL,
Plaintiff-Appellant,
v.
GLENN CHAPMAN, et al.,
Defendants-Appellees.
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No. 01-5571
Appeal from the United States District Court
for the Eastern District of Kentucky at Lexington.
No. 00-00179—Karl S. Forester, Chief District Judge.
Argued: February 7, 2003
Decided and Filed: September 11, 2003
Before: GILMAN and GIBBONS, Circuit Judges;
ECONOMUS, District Judge.*
_________________
COUNSEL
ARGUED: James M. Morris, MORRIS & MORRIS,
Lexington, Kentucky, for Appellant. Sharon Swingle,
2 Mitchell v. Chapman, et al. No. 01-5571
UNITED STATES DEPARTMENT OF JUSTICE, CIVIL
DIVISION, APPELLATE SECTION, Washington, D.C., for
Appellees. ON BRIEF: James M. Morris, MORRIS &
MORRIS, Lexington, Kentucky, for Appellant. Sharon
Swingle, Mark B. Stern, UNITED STATES DEPARTMENT
OF JUSTICE, CIVIL DIVISION, APPELLATE SECTION,
Washington, D.C., for Appellees.
_________________
OPINION
_________________
PETER C. ECONOMUS, District Judge.
I. OVERVIEW
The Appellant, Joey L. Mitchell (“Appellant” or
“Mitchell”), appeals the district court’s grant of summary
judgment to his employer, the United States Postal Service
(“USPS”), and three USPS employees, in this action alleging
various civil rights claims.
Mitchell advances three arguments on appeal: (1) the
district court misapplied the doctrine of claim preclusion as a
means to bar the claims alleged against the defendants in the
defendants’ official capacities; (2) the district court should
have allowed his 42 U.S.C. § 1983 claims to proceed under
the holding of Bivens v. Six Unknown Federal Narcotics
Agents, 403 U.S. 388 (1971); and (3) the district court erred
in interpreting the Family and Medical Leave Act of 1993
(“FMLA”), 29 U.S.C. §§ 2601-2654 (1994), as to preclude
individual liability claims asserted against federal agency
supervisors.
For the reasons that follow, we AFFIRM the decision of
the district court.

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No. 01-5571 Mitchell v. Chapman, et al. 3
II. BACKGROUND
A. FACTUAL HISTORY
On July 8, 1995, Mitchell began his employ as a letter
carrier at the United States Post Office located in Paris,
Kentucky (the “Paris Facility”). (J.A., 23, 166.) Prior to and
throughout his employment, Mitchell suffered from chronic
neck pain arising from an injury that he sustained while
serving in the United States Navy. (J.A., 23, 54, 57-58,166.)
On November 11, 1996, Mitchell’s treating physician, Dr.
Ballard Wright (“Dr. Wright”), certified that Mitchell’s neck
pain was a chronic serious illness pursuant to the FMLA.
(J.A., 24, 54, 59, 166.) Dr. Wright’s certification indicated
that the neck injury required Mitchell’s occasional absence
from work. (J.A., 24, 54, 59,166.)
On February 12, 1997, Mitchell submitted a formal request
to the Paris Facility Postmaster, Richard A. Derrickson
(“Derrickson”), requesting a transfer from his letter carrier
position to the position of clerk. (J.A., 16-17, 24, 77, 85.)
Derrickson took no immediate action on the transfer request.
Several months later, on May 12, 1997, Mitchell failed to
appear during his regularly scheduled shift. (J.A., 17, 24,
116.) When Mitchell returned to work the following day, his
acting supervisor, Glenn Chapman (“Chapman”), verbally
reprimanded Mitchell for the non-excused absence. (J.A., 17,
24, 116, 167.) Chapman indicated to Mitchell that poor
attendance was a significant factor that could detrimentally
impact Mitchell’s transfer request. (J.A., 45, 116, 167.)
In response, Mitchell explained that his absence was the
result of a re-injury to his neck that he sustained while
carrying boxes of canned goods for a charity event. During
the ensuing volatile discussion, Mitchell declared his
intention to designate the absence as FMLA leave and
referred to Dr. Wright’s prior certification. (J.A., 24, 45, 167,
4 Mitchell v. Chapman, et al. No. 01-5571
1Postal regulations permitted management to order FFD Exams by
a physician selected by the USPS “at any time and repeat as necessary, to
safeguard the employee.” (J.A., 78, 89 -92.)
173.) Mitchell further informed Chapman that he would have
to file for permanent disability if compelled to continue
working as a letter carrier. (J.A., 40, 45, 116-17.) Ultimately,
Mitchell designated the eight hours as unscheduled sick leave.
(J.A., 24, 168.)
Chapman immediately alerted Derrickson to Mitchell’s
comments regarding the neck injury. (J.A., 77, 116-17.) In
response to this information, Derrickson instructed Mitchell
to receive a medical fitness-for-duty examination (“FFD
Exam”).1 (J.A., 17, 24, 78-79, 117, 169.) Derrickson
additionally transferred Mitchell from letter carrier to
temporary clerk duties pending the results of the FFD Exam.
(J.A., 24, 78, 117, 167-68.)
On May 15, 1997, Mitchell provided to Derrickson a letter
from Dr. Wright indicating that he was “medically cleared to
perform his duties as a letter carrier for the U.S. Postal
Service with no restrictions.” (J.A., 12, 17, 24, 54, 60, 78-79,
93, 168.) Dr. Wright’s letter further indicated that, “if a less
physically strenuous position becomes available . . .
[Mitchell should] be considered for such a position so as to
not exacerbate his head and neck pain.” ( J.A., 54, 60, 93.)
Derrickson refused to return Mitchell to the letter carrier
position pending the results of the FFD Exam. (J.A., 24, 79,
168.)
On May 20, Mitchell’s collective bargaining representative,
the National Association of Letter Carriers, AFL-CIO (the
“Union”), filed a grievance (the “Grievance”) on Mitchell’s
behalf. The Grievance alleged violations of the FMLA and
parallel provisions of the collective bargaining agreement (the
“CBA”) entered into between the Union and the USPS. (J.A.,
17, 160, 169.)

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No. 01-5571 Mitchell v. Chapman, et al. 5
On May 23, 1997, Dr. Robert Davenport (“Dr.
Davenport”), a physician under contract with the USPS,
conducted a FFD Exam of Mitchell. (J.A., 13, 17, 24-25, 40,
45, 54, 61-66, 79, 169.) Dr. Davenport rendered three
determinations regarding Mitchell’s condition: (1) Mitchell
maintained the ability to perform letter carrier duties so long
as he refrained from carrying mail with a satchel; (2) Mitchell
could continue to perform clerk duties and maintain a low risk
for injury; and (3) Mitchell should be referred to a
neurosurgeon, Dr. John Gilbert (“Dr. Gilbert”), for further
evaluation. (J.A., 25, 54, 66.)
That same day, the USPS denied the Grievance. (J.A.,
160.) Pursuant to the CBA, the Union initiated Step 2 of the
grievance procedure requesting that the USPS award Mitchell
backpay, sick / annual leave, and reinstatement to letter
carrier duties. (J.A., 13, 161.)
By letter dated June 9, 1997, the USPS denied the requested
relief stating, “In the interest of the Grievant’s health and
safety, Management has taken [Mitchell] out of the situation
causing him physical problems, pending further evaluation.
Therefore in the absence of any contractual violation, the
grievance is denied.” (J.A., 161.) The Union thereafter
initiated Step 3 of the grievance procedure. (J.A., 13, 162-
64.)
A third physician, Dr. Gilbert, examined Mitchell on
June 30, 1997 and issued a report returning Mitchell to work
duty without restrictions. (J.A., 13, 17, 25, 69, 169.)
Subsequently, Naewana Nickles (“Nickles”), a USPS
Occupational Health Nurse Administrator responsible for
reviewing medical evaluations of USPS employees, received
Dr. Gilbert’s report. (J.A., 13, 25, 55.) Nickles found the
report deficient in several respects and requested that Dr.
Gilbert specifically address whether Mitchell could perform
“all of the essential functions of a City Carrier without risk of
hazard to self or others.” (J.A., 13, 18, 25, 55, 70-71, 169-
71.)
6 Mitchell v. Chapman, et al. No. 01-5571
Dr. Gilbert responded to Nickles’s request as follows:
[B]ased on my exam and discussion with the patient and
the fact that the patient tells me that he feels he can do
his job without restrictions, I feel this [sic] is not
unreasonable for him to perform his job without
restrictions. If the [USPS] would like a more detailed
assessment of restrictions, . . . we would need to proceed
with a functional capacity evaluation done by a licensed
physical therapist.
I note in your records that [Mitchell] has said that the
stresses from carrying a satchel cause him problems on
his neck. If this is indeed true, then I would recommend
that he not carry the satchel. However, the patient did
not tell me this. He told me he felt he could do his job
without restrictions. If you want to be on the safe side
and if it is true that the patient feels that the satchel’s
giving him problems, then we need to get rid of the
satchel.
(J.A., 25, 55, 72.)
Nickles ultimately reported to Derrickson that Mitchell
“[c]ould continu[e] carrying mail if [Mitchell] doesn’t use [a]
satchel.” (J.A., 55, 74, 79.) Derrickson did not, however,
return Mitchell to full letter carrier duties. (J.A., 79.)
On August 11, 1997, Mitchell submitted a second request
for transfer to a full-time clerk position. (J.A., 13, 18, 25, 80,
95.) Derrickson approved the request on August 19, 1997.
(J.A., 13, 25, 80, 95.)
On August 25, 1997, Dr. Gilbert issued a supplemental
report to the USPS indicating that Mitchell “can’t work with
a neck harness because it puts him at a high risk” for injury.
(J.A., 55, 75.) Dr. Gilbert further indicated that he examined
a model USPS waist harness for carrying mail that “transfers
the weight from the bag from the shoulder to the waist” and

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No. 01-5571 Mitchell v. Chapman, et al. 7
2Title twenty-nine of the Code of Federal Regulations, chapter
fourteen, part 1614, establishes an extensive dispute resolution process to
address a federal employee’s charge of discrimination. T his dispute
resolution system requires “a complaining pa rty to pursue administrative
relief prior to court action, thereby enco uraging mo re exped ient, less
formal, and less expensive resolution of disputes within the Federal
Governm ent and outside of court.” West v. Gibson, 527 U.S. 212, 218-19
(1999). In particular, 29 C.F.R. § 161 4.10 5 provides, in relevant part:
(a) Aggrieved persons who believe they have been discriminated
against on the basis of race, color, religion, sex, national origin,
age or handicap must consult a Counselor prior to filing a
complaint in order to try to informally resolve the matter.
(1) An aggrieved person must initiate contact with a
Counselor within 45 days of the date of the matter alleged
to be discrimina tory or, in the case of personnel action,
that Mitchell was at a “low risk” of injury while using the
waist harness. (J.A., 13-14, 55, 75.) Consequently, Dr.
Gilbert “recommended releasing Mr. Mitchell to full duty
restricted to using the harness provided to [him] by the
[USPS] which transfers the weight of the bag to the waist
rather than the shoulder.” (J.A., 13-14, 55, 75.)
Mitchell alleges that he attempted to withdraw his transfer
request based on Dr. Gilbert’s recommendation -- however,
Derrickson refused the withdrawal. (J.A., 174-75.)
Derrickson denies that Mitchell submitted such a request.
(J.A., 80.) Mitchell’s transfer to the clerk position became
effective August 30, 1997. (J.A., 14, 25, 80, 96.)
B. PROCEDURAL HISTORY
The EEO Proceedings
Mitchell contacted an Equal Employment Opportunity
(“EEO”) counselor on October 30, 1997 alleging that
Derrickson’s refusal to return him to his letter carrier position
constituted disability discrimination in violation of the FMLA
and the Disabled Veterans Act.2 (J.A., 11, 14, 25, 40, 42-46.)
8 Mitchell v. Chapman, et al. No. 01-5571
within 45 days of the effective date of the action.
(2) The agency or the Commission shall extend the 45-day
time limit in paragraph (a)(1) of this section when the
individual shows that he or she was not notified of the time
limits and was not otherwise aware of them, that he or she
did not know and reasonably should not have been known
that the discriminatory matter or personnel action occurred,
that despite due diligence he or she was prevented by
circumstances beyond his or her control from contacting the
counselor within the time limits, or for other reasons
considered sufficient by the agency or the Comm ission.
29 C.F.R. § 16 14.105 (20 03).
3Twenty-nine C.F.R . §16 14.1 06 p rovid es, in pertinent part:
(a) A comp laint must be filed with the agency that alleged ly
discrim inated against the com plainant.
(b) A com plaint must be filed within 15 days of receipt of
the notice required by § 1614.105 (d), (e) or (f) [provisions
regarding the completion of informal meetings with an EEO
counselor].
On June 6, 1998, Mitchell filed a formal EEO complaint of
discrimination (“EEO Complaint) with the USPS alleging
disability discrimination “based on accommodation.”3 (J.A.,
12, 14, 26, 41, 47.)
The USPS dismissed as untimely Mitchell’s EEO
Complaint, determining that Mitchell initiated contact with an
EEO counselor beyond the forty-five day period provided in
29 C.F.R. 1614.105. (J.A., 12, 26, 45, 48-51.) Specifically,
the USPS determined that Mitchell had not consulted with the
EEO counselor until sixty-six days after the alleged
discriminatory refusal to reinstate him as a mail carrier, and
sixty days after the effective date of his transfer to a clerk
position. (J.A., 45, 48-51.) Mitchell did not administratively
appeal the USPS’s decision.

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No. 01-5571 Mitchell v. Chapman, et al. 9
Mitchell I
On November 17, 1998, Mitchell filed a complaint in the
United States District Court for the Eastern District of
Kentucky against the USPS and the Postmaster General,
William Henderson (“Henderson”), alleging violations of the
Rehabilitation Act of 1973, 29 U.S.C. §§ 700-796 (1994), and
the Americans With Disabilities Act of 1990 (“ADA”), 42
U.S.C. §§ 12101-12213 (1994). See Mitchell v. Henderson
(“Mitchell I”), No. 98-469 (E.D. Ky. filed Nov. 1, 1998), at
(J.A., 97 - 104). Mitchell’s complaint sought relief predicated
on two events: (1) the defendants’ purported refusal of his
request to return to letter carrier duties with the
accommodation of a waist harness; and (2) his transfer to a
lesser-paying clerk’s position after requesting FMLA leave.
Mitchell I, at (J.A., 97 - 104).
The district court granted summary judgment in favor of
the defendants, resting its determination on Mitchell’s failure
to contact an EEO Counselor within forty-five days of the
allegedly discriminatory conduct. (J.A., 106-12.)
Resolution of the Grievance
Several weeks later, on May 25, 1999, the Union and the
USPS settled Mitchell’s Step 3 Grievance. (J.A., 165.) The
terms of the settlement awarded Mitchell backpay during the
period that he served as a temporary clerk, as well as
additional sick / vacation leave. (J.A., 165.)
Mitchell II
Nearly a year later, Mitchell filed a complaint in the United
States District Court for the Eastern District of Kentucky
against the USPS, Henderson, Chapman, Derrickson, and
Nickles, where he re-asserted violations of the Rehabilitation
Act and the ADA, as well as alleged additional claims
pursuant to Title VII of the Civil Rights Act of 1964, as
amended by the Civil Rights Act of 1991 (“Title VII”),
10 Mitchell v. Chapman, et al. No. 01-5571
4Rule 12 of the Federal Rules of C ivil Procedure provid es, in
pertine nt part:
If, on a motion asserting the defense numbered (6) to dismiss for
failure of the pleading to state a claim upon which relief may be
granted, matters outside of the pleading are presented to and not
excluded by the court, the mo tion shall be treated as one for
summary judgment and disposed of as provide in Rule 56.
FED. R. CIV. P. 12 (b)(6). As the district court considered a series of
affidavits and exhibits attached to the mo tion, it converted the mo tion to
one seeking summ ary judgment.
42 U.S.C. §§ 2000a-2000h (1994); the FMLA; 42 U.S.C.
§ 1983; the Fourteenth Amendment to the United States
Constitution; and the Kentucky Civil Rights Act (“KCRA”),
KY. REV. STAT. ANN. §§ 344.010-.990. See Mitchell v.
Chapman (Mitchell II), No. 00-179 (E.D. Ky. filed May 15,
2000), at (J.A., 6-22).
The defendants thereafter moved for the dismissal of the
complaint pursuant to FED. R. CIV. P. 12 (b)(1), (2), (3), and
(6), or in the alternative, for summary judgment pursuant to
FED. R. CIV. P. 56 (b).4 In response, Mitchell conceded that
dismissal was proper as to all claims asserted against
Henderson and all ADA claims. (J.A., 138-39, 143, 149.)
The district court accordingly granted judgment in favor of
the defendants on the conceded claims. (J.A., 28.)
The district court further determined that the doctrine of
claim preclusion rendered its decision in Mitchell I as a bar to
Mitchell’s subsequent claims against the USPS, and all claims
asserted against Chapman, Derrickson, and Nickles in their
official capacities. (J.A., 29-34.) The district court declined,
however, to invoke claim preclusion as to Mitchell’s
individual capacity claims. (J.A., 30-32.)
The district court then considered the individual liability of
Chapman, Derrickson, and Nickles. The district court
concluded that neither Title VII, the Rehabilitation Act, nor

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No. 01-5571 Mitchell v. Chapman, et al. 11
Kentucky law imposed individual liability for discriminatory
conduct. (J.A., 35-36.) Consequently, the district court
entered judgment in favor of the defendants on said claims.
The district court also awarded judgment to the defendants
on Mitchell’s individual capacity FMLA claims. In so doing,
the district court rejected Mitchell’s contention that the statute
imposed individual liability on public employers. (J.A., 36-
37.)
The district court further awarded judgment to the
defendants on Mitchell’s Section 1983 claims, reasoning:
(1) federal employees do not act “under color of state law” as
required by the statute; and (2) Mitchell failed to comply with
the one-year statute of limitations for asserting Section 1983
claims. (J.A., 34-35.) Moreover, the district court held that
the Fourteenth Amendment was inapplicable to claims arising
from actions of federal officials and employees. (J.A., 35.)
Accordingly, the district court granted the defendants’
motion for summary judgment. The instant appeal ensued.
(J.A., 39.)
III. STANDARD OF REVIEW
This Court reviews a grant of summary judgment de novo.
See Brooks v.American Broadcasting Cos., 932 F.2d 495, 500
(6th Cir. 1991). Summary judgment is proper “if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.”
FED. R. CIV. P. 56 (c). When confronted with a properly
supported motion for summary judgment, the nonmoving
party must set forth specific facts showing that there is a
genuine issue for trial. A genuine issue for trial exists “if the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
12 Mitchell v. Chapman, et al. No. 01-5571
5In Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75
(1984), the United States Supreme Court expressed its preference for the
use of the term “claim preclusion,” rather than the m ore traditiona lly
utilized term “res judicata.” Migra, 465 U .S. at 77 n.1. Res judicata
generally includes two separate concepts - claim preclusion and issue
preclusion. Claim preclusion, or true res judicata, refers to effect o f a
prior judgme nt in foreclosing a subsequent claim that has never been
litigated, because of a determination that it should have b een advanced in
an earlier action. Id. Issue preclusion, on the other hand, refers to the
foreclosure of an issue previously litigated. Id.
IV. LAW AND ANALYSIS
A. Claim Preclusion
Mitchell challenges the district court’s determination that
the principles of claim preclusion, or res judicata,5 rendered
the judgment in Mitchell I as a bar to Mitchell II. This Court
reviews the dismissal of a case on claim preclusion grounds
de novo. See Kane v. Magna Mixer Co., 71 F.3d 555, 560
(6th Cir. 1995) (citing Black v. Ryder/P.I.E. Nationwide, Inc.,
15 F.3d 573, 582 (6th Cir. 1994)).
Claim preclusion is the doctrine by which a final judgment
on the merits in an action precludes a party from bringing a
subsequent lawsuit on the same claim or raising a new
defense to defeat a prior judgment. See Montana v. United
States, 440 U.S. 147, 153 (1979). It precludes not only
relitigating a claim previously adjudicated; it also precludes
litigating a claim or defense that should have been raised, but
was not, in the prior suit. See Stern v. Mascio, 200 F.3d 600,
608 (6th Cir.2001) (citing Gargallo v. Merrill Lynch, Pierce,
Fenner & Smith, Inc., 918 F.2d 658, 660-61 (6th Cir.1990)).
Claim preclusion only arises, however, in the presence of the
following four elements: (1) where the prior decision was a
final decision on the merits; (2) where the present action is
between the same parties or their privies as those to the prior
action; (3) where the claim in a present action should have
been litigated in the prior action; and (4) where an identity

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No. 01-5571 Mitchell v. Chapman, et al. 13
6Mitchell concedes the fourth element - whether there is an identity
between the claims asserted in Mitchell I and Mitchell II. Identity of
causes of action mea ns an “identity of the facts creating the right of action
and of the evidence necessary to sustain each action.” Westwood Chem.
Co. v. Kulick, 656 F.2d 1224, 1227 (6th Cir.1981). It is undisputed that
the complaints in Mitchell I and Mitchell II allege identical facts, differing
only in the introductory paragraphs.
7See Rivers v. Barberton Bd. of Educ., 143 F.3d 1029, 1032 (6th Cir.
1998) (“Rivers urges that a dismissal for failure to satisfy a condition
precedent should not be considered an adjudication on the merits for
claim preclusion purposes . . . [W]e need not decide this question
today.”).
exists between the prior and present actions. See Kane, 71
F.3d at 560.
Here, the central dispute involves the first three elements of
claim preclusion - whether there was a final decision on the
merits, whether the two actions were filed against the same
parties or their privies, and whether the claims in Mitchell II
should have been brought in Mitchell I.6 The Court shall
address each element in turn.
1. Decision on the Merits
The district court determined that its judgment in Mitchell I
resting on Mitchell’s failure to fulfill a condition precedent to
suit -- specifically, Mitchell’s failure to pursue informal
resolution with an EEO counselor within forty-five days of an
alleged discriminatory act -- constituted a decision on the
merits for claim preclusion purposes. In reaching this
conclusion, the district court acknowledged the lack of
precedent from this Court regarding whether a dismissal for
failing to fulfill a condition precedent is a decision on the
merits.7 (J.A., 29.) In the absence of controlling authority,
the district court reasoned: (1) the deadline for consulting
with an EEO counselor was similar to a statute of
14 Mitchell v. Chapman, et al. No. 01-5571
8Citing Boddy v. Dean, 821 F.2d 34 6, 350 (6th Cir. 1987).
9Citing Cemer v. Marathon Oil Co., 583 F.2d 83 0, 832 (6th Cir.
1978).
limitations;8(2) a dismissal on statute of limitations grounds
was an adjudication on the merits for claim preclusion
purposes;9 and (3) a dismissal of plaintiff’s claims for failure
to contact an EEO counselor therefore was a final decision on
the merits for claim preclusion purposes. (J.A., 29-30.)
The district court’s analysis rests on sound legal authority.
It is well-established that a party’s exhaustion of
administrative processes for filing a claim of discrimination
is a condition precedent to filing suit in the district court,
rather than a jurisdictional prerequisite. See Zipes v. Trans
World Airlines, Inc., 455 U.S. 385, 394 (1982) (holding that
the administrative provisions requiring an employee to pursue
a charge of discrimination with the EEOC are conditions
precedent to suit subject to waiver, tolling and estoppel); see
also Irwin v. Dep’t of Veteran Affairs, 498 U.S. 89, 95 (1990)
(extending Zipes to administrative requirements for federal
employees bringing suits against federal agencies). This
Court has held that a federal employee’s administrative
obligation to consult with an EEO counselor within a
particular time period is a precondition to filing suit subject
to equitable tolling, waiver and estoppel. See Boddy, 821
F.3d at 350 (citing Zipes, 455 U.S. 385). The distinction
between a jurisdictional prerequisite and a condition
precedent is of significant analytical import because a
dismissal for lack of subject matter jurisdiction is not a
dismissal on the merits for claim preclusion purposes. See
Rogers v. Stratton Indus., Inc., 798 F.2d 913, 916 (6th Cir.
1986) (“Normally, Rule 12(b)(6) judgments are dismissals on
the merits and Rule 12(b)(1) dismissals are not.”) (Citation
omitted).

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No. 01-5571 Mitchell v. Chapman, et al. 15
It further is well-established that conditions precedent are
similar to statutes of limitations. See Truitt v. County of
Wayne, 148 F.3d 644, 646-47 (6th Cir. 1998) (“[W]e hold that
[an administrative condition precedent requiring a plaintiff to
file suit within ninety days of receiving a right to sue letter
from the EEOC] is not a jurisdictional requirement but,
instead, is a timing requirement similar to a statute of
limitations, subject to waiver, estoppel and equitable
tolling.”). Moreover, a dismissal for failing to comply with
a statute of limitations is a decision on the merits for claim
preclusion purposes. See Nathan v. Rowan, 651 F.2d 1223,
1226 (6th Cir. 1981). Therefore, the district court did not
make an impermissible leap in analogizing a dismissal for
failing to fulfill a condition precedent to a dismissal arising
from a failure to comply with the statute of limitations.
The limitations of the district court’s approach
While the district court reached the correct conclusion --
that is, a dismissal predicated on a federal employee’s failure
to consult with an EEO counselor within forty-five days is a
decision on the merits for claim preclusion purposes -- the
accuracy of district court’s rationale requires further
explanation. The specific condition precedent addressed by
the district court is readily akin to dismissal for failing to
comply with a statute of limitations. In either context,
whether the plaintiff fails to consult with the EEO counselor
within forty-five days of the discriminatory event, or whether
the plaintiff fails to file suit within the statutorily prescribed
period, the party is permanently foreclosed from meeting the
condition or statutory requirement. Simply, the party is
unable to rewind the clock, fulfill the condition / file the
action within the requisite time period, and proceed to an
adjudication of his or her claim. However, there are certain
condition precedents where, although the party may not have
fulfilled the condition prior to filing suit in the district court,
he or she may return to the administrative process, fulfill the
16 Mitchell v. Chapman, et al. No. 01-5571
10For example, 29 C.F.R. § 161 4.40 7 (a) requires an aggrieved party
to file suit within ninety days of receiving notice of the EEOC ’s final
action or dismissal of a com plaint. W hen the administrative p rocess is
complete, the EE OC issues to the aggrieved party a “right to sue letter”
and the party thereafter has ninety days in which to file a civil ac tion. See
29 C.F.R. § 1614.109. Where the plaintiff files suit prior to receiving the
right to sue letter, the district court is compelled to d ismiss the premature
action for failure to exhaust administrative remedies. See Graham-
Hum phreys v. Mem phis Bro oks M useum of Art, Inc., 209 F.3d 552, 560
(6th Cir. 2000). It is well-settled that the ninety day right to sue provision
is an administrative condition precedent, rather than a jurisdictional
prerequisite. See Truitt, 148 F.3d at 646-47. Consequently, the court
should dismiss the action pursuant to Rule 12 (b)(6), for failure to state a
claim, rather than Rule 12 (b)(1), for lack of subject matter jurisdiction.
Under the district court’s analysis, such a dismissal would be on the
merits for claim preclusion purpo ses, notwithstanding the aggrieved
party’s ability to return to the administrative process, await a right to sue
letter, and subsequently re-file the action.
condition, and re-file the civil action.10 Therefore, not all
decisions finding that a plaintiff failed to fulfill a condition
precedent are readily comparable to a finding that a party
failed to comply with the statute of limitations.
It is the potential overreaching of the district court’s
reasoning that warrants an express limitation. This Court
repeatedly has cautioned that a decision on the merits is one
that signifies the “death knell” of the litigation. See Wilkins
v. Jakeway, 183 F.3d 528, 534 (6th Cir. 1999) (“[T]his is a
death knell for Plaintiff’s [False Claims Act] claims against
the Defendants, in their individual capacities, and is
essentially a decision on the merits.”); Rogers, 798 F.2d at
916 (“Where a statutory right is being pursued, however, and
the defense raised is that the plaintiff or defendant does not
come within the purview of the statute, the judicial
acceptance of this defense, . . . is the death knell of the
litigation and has the same effect as a dismissal on the
merits.”). The underlying principle of this “death knell”
language is that a dismissal on the merits is one that
permanently forecloses a party from further advancing a claim
or defense.

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No. 01-5571 Mitchell v. Chapman, et al. 17
Here, the district court’s determination that Mitchell failed
to meet with an EEO counselor within the requisite time
period permanently foreclosed Mitchell’s Rehabilitation Act
claim. Mitchell could not, and will forever remain unable, to
meet with an EEO counselor within forty-five days of the
discriminatory act as required by 29 C.F.R. § 1614.105.
However, not all dismissals for failing to meet a condition
precedent will have this permanently barring effect.
Therefore, a dismissal for failing to file a condition precedent
is a decision on the merits only if the aggrieved party is
permanently foreclosed from fulfilling the condition. As
Mitchell was permanently foreclosed from fulfilling the
requirements of 29 C.F.R. § 1614.105, the district court
correctly determined that its decision in Mitchell I was a
decision on the merits.
Mitchell nevertheless asserts that as the judgment in
Mitchell I was not one on the merits because the district court
relied on a “technicality” (Final Br. of Appellant, at 14) and,
or, a “procedural defect” (Final Br. of Appellant, at 15). In
support of his contention, Mitchell relies on Wilkins,183 F.3d
528, where a prior panel of this Court stated: “[A]lthough the
district court’s dismissal was framed in terms of a Rule 12
(b)(6) dismissal on the merits, in actuality, the court’s
determination that the individual defendants were not
‘employers’ under the [False Claims Act] was jurisdictional
because it did not go to the merits of Plaintiff’s suit.” Wilkins,
183 F.3d at 534.
Mitchell erroneously interprets the foregoing statements as
requiring a judgment to reach the merits of a particular claim
in order to have a preclusive effect. The patent deficiency in
Mitchell’s assertion, as demonstrated supra, is that dismissals
for failing to comply with “technicalities” such as a statute of
limitations constitute decisions on the merits. Moreover,
Mitchell misplaces his reliance on Wilkins as there the Court
addressed the preclusive effect of a judgment in the context of
a party’s failure to establish a jurisdictional prerequisite. In
contrast, Mitchell I addressed a failure to fulfill a condition
18 Mitchell v. Chapman, et al. No. 01-5571
precedent. As discussed supra, there is a significant
distinction between a dismissal for a failure to fulfill a
jurisdictional prerequisite and a dismissal for a failure to
fulfill a condition precedent. As such, Wilkins is inapposite
to the matter sub judice.
The instant appeal falls squarely within this Court’s
precedent establishing that a decision on the merits is one that
permanently forecloses a party from advancing a claim or
defense. As Mitchell I permanently foreclosed Mitchell
from asserting claims pursuant to the Rehabilitation Act as a
result of Mitchell’s failure to meet with an EEOC counselor
during the requisite period, the dismissal was a decision on
the merits for claim preclusion purposes.
2. Same Parties or Privies
The second element of claim preclusion operates to bar
successive claims among the same parties or their privies.
The district court expressly determined that its decision in
Mitchell I barred all claims against the USPS because the
USPS was a named party to the prior action. (J.A., 30-31.)
Similarly, the district court determined that its judgment in
Mitchell I barred all claims alleged against Chapman,
Derrickson, and Nickles in their official capacities because a
suit against a public employee in his or her official capacity
is a suit against the agency itself. (J.A., 30-31); see also
Kentucky v. Graham, 473 U.S. 159 (1985); Monell v. Dep’t.
of Social Servs., 436 U.S. 658, 690 n. 55 (1978). Neither
party disputes the district court’s determinations in these
respects.
The Appellees’ attempt to extend claim preclusion to
Mitchell’s individual capacity claims
The Appellees nevertheless urge this Court to extend the
preclusive effect of Mitchell I to the individual capacity
claims asserted against Chapman, Derrickson, and Nickles.
(Final Br. of Appellees, at 23-31.) In support of their

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No. 01-5571 Mitchell v. Chapman, et al. 19
contention, the Appellees initially assert that the district court
erred in construing the complaint in Mitchell II as alleging
individual capacity claims. (J.A., 27-30.)
In Moore v. City of Harriman, 272 F.3d 769 (6th Cir.
2001), this Court stated “while it is clearly preferable that
plaintiffs explicitly state whether a defendant is sued in his or
her ‘individual capacity,’ failure to do so is not fatal if the
course of proceedings otherwise indicates that the defendant
received sufficient notice.” Id. (Internal citation and
quotation marks omitted). Harriman’s “course of the
proceedings” test examines “the nature of the plaintiff’s
claims, requests for compensatory or punitive damages, and
the nature of any defenses raised in response to the complaint,
particularly claims of qualified immunity, to determine
whether the defendant had actual knowledge of the potential
for individual liability.” Harriman, 272 F.3d at 772 n.1
(citations omitted).
The Appellees acknowledge that the caption of the
complaint identifies Chapman, Derrickson, and Nickles as
subject to suit in their official and individual capacities. (J.A.,
27-30.) The Appellees contend, however, that the allegations
of the complaint demonstrate that all of the alleged conduct
committed by Chapman, Derrickson, and Nickles occurred
while the defendants acted in their official capacities as postal
service employees. (J.A., 27-30.) Consequently, the
Appellees argue that this “official conduct” cannot give rise
to individual liability claims.
In Hafer v. Melo, 502 U.S. 21 (1991), the United States
Supreme Court rejected the argument advanced by the
Appellees that “officials may not be held liable in their
personal capacity for actions they take in their official
capacity.” Hafer, 502 at 27. The Court reasoned that such a
theory “would absolutely immunize state officials from
personal liability for acts within their authority and necessary
to fulfilling governmental responsibilities.” Hafer, 502 U.S.
at 28. The Court further reasoned that such absolute
20 Mitchell v. Chapman, et al. No. 01-5571
11In addition, the unique waiver o f sovereign immunity applicable
to actions against the USPS allows for official capacity claims against
USP S emp loyees. See 39 U.S.C. § 40 1 (“The Po stal Service shall have
the following general powers - (1) to sue and be sued in its official
name.”). Therefore, USPS employees are not cloaked with absolute
immunity for their actions.
immunity extends only to a very limited class of officials,
“including the President of the United States, legislators
carrying out their legislative functions, and judges carrying
out their judicial functions.” Hafer, 502 U.S. at 28. As most
public employees, including the Appellees, do not fall into
this narrow class of officials, acts taken in the course of their
official duties may serve as the basis for individual liability
claims.11 Therefore, the Appellees’ argument is without
merit.
The Appellees alternatively assert that the judgment in
Mitchell I precludes the individual capacity claims because
Chapman, Derrickson, and Nickles were in privity with the
USPS. (J.A., 22-27.) In the context of claim preclusion,
“privity . . . means a successor in interest to the party, one
who controlled the earlier action, or one whose interests were
adequately represented.” Sanders Confectionery Prods., Inc.
v. Heller, 973 F.2d 474, 481 (6th Cir. 1992). The Appellees
fail to acknowledge, however, that the rule of differing
capacities provides that “[a] party appearing in an action in
one capacity, individual or representative, is not thereby
bound by or entitled to the benefits of the rules of res judicata
in a subsequent action in which he appears in another
capacity.” RESTATEMENT SECOND OF JUDGMENTS § 36(2)
(1982). The rule of differing capacities generally operates to
allow a subsequent individual capacity suit against a
governmental official even where a prior suit alleged an
official capacity claim against the same official. See
Wilkins,183 F.3d at 534-35 (recognizing the distinction
between individual and official capacity claims and applying
the rule of differing capacities -- albeit without explicitly
referring to the rule); see also Warnock v. Pecos County, 116

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No. 01-5571 Mitchell v. Chapman, et al. 21
F.3d 776 (5th Cir. 1997) (holding that a prior suit against a
municipality does not bar a later suit against local officials in
their individual capacity); Conner v. Reinhard, 847 F.2d 384,
395 (7th Cir.) (holding that a prior suit against a municipality
does not bar a subsequent suit against officials individually
because official capacity and personal capacity suits involve
different legal theories and defenses), cert. denied, 488 U.S.
856, 109 S. Ct. 147, 102 L. Ed. 2d 118 (1988); Headley v.
Bacon, 828 F.2d 1272, 1277-79 (8th Cir. 1987)
(distinguishing privity between principal and agent from
privity between a governmental entity and officials sued in
their individual capacities). See also Howell Hydrocarbons,
Inc. v. Adams, 897 F.2d 183, 188 (5th Cir.1990) (“Res
judicata does not apply when the parties appear in one action
in a representative capacity and in a subsequent action in an
individual capacity.”).
The rule of differing capacities therefore enables Mitchell
to assert individual capacity claims against Chapman,
Derrickson, and Nickles.
3. Was Or Should Have Been Litigated In The Prior
Action
The central purpose of claim preclusion is to prevent the
“relitigating of issues that were or could have been raised in
[a prior] action.” Federated Dep’t Stores, Inc., v. Moitie, 452
U.S. 394, 398 (1981). The district court determined that
Mitchell could have brought his Title VII, FMLA, 42 U.S.C.
§ 1983, Fourteenth Amendment, and KCRA claims in
Mitchell I. The record supports the district court’s finding.
It is undisputed that Mitchell was aware of all of the facts
giving rise to his claims at the time he filed Mitchell I.
22 Mitchell v. Chapman, et al. No. 01-5571
12Mitchell brought his Title VII claim on the basis of disability
discrimination. Und er T itle VII, it is unlawful for an em ployer to
discharge or otherwise discriminate against an individual with resp ect “to
compensation, terms, conditions or privileges of employment on the basis
of the individual’s race, color, religion, sex or national origin.” See 42
U.S.C. § 2000e-2(a). Title VII does not address disability discrimination.
13Mitchell provides no explanation as to his failure to assert the other
claims alleged in Mitchell II.
14It must be acknowledged, however, that the stringent timing
requirements of 29 C.F.R. § 16 14.1 01, et seq., present potential perils for
a party alleging multiple claims in separate administrative fora. Here,
Mitchell was required to file Mitchell I within ninety days of his receipt
of the right to sue letter, dated August 19, 19 99. A dmittedly, Mitchell’s
Indeed, Mitchell expressly alleged disability discrimination12
and violations of the FMLA in both his Grievance and his
EEO charge filed prior to Mitchell I. (J.A., 42, 160.)
In an effort to explain his failure to assert all of his potential
claims, Mitchell alleges he refrained from filing a FMLA
action in Mitchell I because that claim was the subject of the
Grievance.13 As the district court noted, Mitchell fails to cite
any provision of the CBA requiring him to submit FMLA
claims to binding arbitration prior to initiating a civil action.
(J.A., 33.) Assuming arguendo, that the CBA mandates
binding arbitration, it is well-established that the CBA must
contain a “clear and unmistakable waiver” of Mitchell’s
FMLA rights to foreclose his entitlement to a judicial forum.
See Bratten v. SSI Servs., Inc., 185 F.3d 625, 631-632 (6th
Cir. 1999) (citing Wright v. Universal Maritime Serv. Corp.,
525 U.S. 70, 82 (1998)); Plumley v. Southern Container, Inc.,
303 F.3d 364 (1st Cir. 2002) (applying the “clear and
unmistakable” waiver standard to FMLA claims); Rogers v.
New York University, 220 F.3d 73 (2d Cir. 2000) (same).
Mitchell fails to demonstrate any provision of the CBA
containing a clear and unmistakable waiver of his statutory
claims. Consequently, Mitchell fails to provide a sufficient
justification for failing to file his statutory claims.14

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No. 01-5571 Mitchell v. Chapman, et al. 23
FMLA Grievance was pending in Step 3 of the grievance procedure
during this period. The appropriate course of action in this scenario was
for Mitchell to timely file his civil action, alert the district court as to the
pendency of the FM LA G rievance, and request a stay of the judicial
proceedings while awaiting the resolution of the grievance. See Church ill
v. Star En ters., 183 F.3d 184, 192 (3d Cir. 1999) (“Attorneys sho uld
organize litigation that they are pursuing to avoid claim preclusion.”).
Up on resolution of the grievance, M itchell could req uest the court to lift
the stay and seek leave to amend his complaint in order to allege the
FMLA action. To do otherwise, creates the very risk presented herein of
obtaining a partial, yet preclusive , judgm ent.
15Mitchell wisely fails to p resent any argument on ap peal with
respect to his T itle VII, the Re habilitation Act, or K CRA claim s. See
Wathen, 115 F.3d at 404-05 n.6 (6th Cir. 1997) (reaffirming that Title VII
does not provide for individual liability and the K CRA does no t impose
individual liability); Hiller v. Brown, 177 F.3d 542 ( 6th Cir. 1999)
(holding that the Rehabilitation Act does not impose individual liability).
Consequently, these claims are considered abandoned for the purposes of
app eal. See Enertech v. Mahoning County Comm’rs, 85 F.3d 2 57 (6th
Cir. 19 96).
4. Conclusions regarding claim preclusion
The doctrine of claim preclusion thereby renders the district
court’s judgment in Mitchell I as a bar to the claims asserted
against the USPS, as well as the claims alleged against
Chapman, Derrickson, and Nickles in their official capacities.
Claim preclusion does not, however, extend to the individual
capacity claims asserted against Chapman, Derrickson, and
Nickles because of the rule of differing capacities. As the
district court correctly noted, Mitchell was not barred from
arguing the merits of his individual capacity claims alleged
pursuant to Title VII, the Rehabilitation Act, the KCRA, the
FMLA, 42 U.S.C. § 1983, and the Fourteenth Amendment.15
24 Mitchell v. Chapman, et al. No. 01-5571
B. Mitchell’s 42 U.S.C. § 1983 and Fourteenth
Amendment Claims
Mitchell asserts that the district court should have
considered his 42 U.S.C. § 1983 and Fourteenth Amendment
claims in light of Bivens, 403 U.S. 388.
Mitchell’s argument requires little analysis. In Bivens, the
Supreme Court recognized a right to recover damages against
federal officials who violate an individual’s constitutional
rights. See Bivens, 403 U.S. at 395. Mitchell did not allege
a Bivens claim in Mitchell II; rather, he averred claims
pursuant to Section 1983. There lacks any authority in
support of Mitchell’s blanket proposition that a court must
convert a Section 1983 claim asserted against federal officials
to one asserting Bivens violations. Assuming arguendo, that
this Court were to place such a requirement on the district
courts, Mitchell’s claim nevertheless fails. Bivens claims
have a one year statute of limitations under Kentucky law. See
McSurely v. Hutchinson, 823 F.2d 1002 (6th Cir. 1987). As
the district court acknowledged, Mitchell filed his Section
1983 claim (or the purported Bivens action) nearly three years
past the limitations period. (J.A., 34.)
Furthermore, it is well-settled that USPS employees may
not allege Bivens claims arising out of their employment
relationship with the USPS. See Harper v. Frank, 985 F.2d
285, 290 (6th Cir. 1993). See also Turner v. Holbrook, 278
F.3d 754 (8th Cir. 2002); Pipkin v. United States Postal
Serv., 951 F.2d 272, 275 (10th Cir. 1991). Consequently,
Mitchell’s purported Bivens claim fails as a matter of law.
C. FMLA Individual Liability for Public Agency
Employers
Mitchell’s final assertion on appeal is that the district court
erroneously interpreted the FMLA as to preclude individual
liability claims against public agency employers. The issue
of whether the FMLA provides for individual liability against

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No. 01-5571 Mitchell v. Chapman, et al. 25
a public employer is a matter of first impression for this
Court.
“Under accepted canons of statutory interpretation, we must
interpret statutes as a whole, giving effect to each word and
making every effort not to interpret a provision in a manner
that renders other provisions of the same statute inconsistent,
meaningless or superfluous.” See Lake Cumberland Trust,
Inc. v. United States Environmental Protection Agency, 954
F.2d 1218, 1222 (6th Cir. 1992) (citation omitted). The plain
meaning of the statute controls, except in rare cases in which
the literal application of the statutory language would compel
an odd result or produce a result demonstrably at odds with
legislative intent. See Public Citizen v. United States Dep’t
of Justice, 491 U.S. 440 (1989). We must begin with the
statute’s plain language, and may resort to a review of
congressional intent or legislative history only when the
language of the statute is not clear. See In re Comshare, Inc.,
183 F.3d 542, 549 (6th Cir. 1999) (citing Consumer Prod.
Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108
(1980)).
Turning to the statute, the FMLA entitles “eligible
employees” to take up to twelve weeks of unpaid leave in any
twelve-month period for qualifying medical or family
reasons. See 29 U.S.C. § 2612(a)(1). The statute ensures
that the employee will be restored to the same or an
equivalent position upon returning to work. See 29 U.S.C.
§ 2614(a)(1).
The statute creates a private right of action entitling
“eligible employees” to seek both equitable relief and money
damages “against any employer (including a public agency)
in any Federal or State court of competent jurisdiction,” 29
U.S.C. § 2617(a)(2), should that employer “interfere with,
restrain, or deny the exercise of” FMLA rights, 29 U.S.C.
§ 2615(a)(1).
26 Mitchell v. Chapman, et al. No. 01-5571
The FMLA expressly incorporates into its provisions the
Fair Labor Standards Act’s (“FLSA”), 29 U.S.C. §§ 201-219
(1994), definition of “employee.” See 29 U.S.C. § 2611(3)
(“The terms ‘employ’, ‘employee’, and ‘State’ have the same
meanings given such terms in subsections (c), (e), and (g) of
section 203 of this title [the FLSA].”). The FLSA defines
employee as “any individual employed by an employer” and
includes “any individual employed by the United States
Postal Service.” 29 U.S.C. § 203 (e)(1) & (2)(B). An
“eligible employee” under the FMLA is an “employee” who
“has been employed for at least 12 months by the employer
with respect to whom leave is requested . . . ; and for at least
1,250 hours of service with such employer during the
previous 12-month period.” 29 U.S.C. § 2611(2)(A).
The FMLA defines “employer” as follows:
(4) Employer
(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
proceeding calendar year;
(ii) includes --
(I) any person who acts, directly or indirectly, in the
interest of an employer to any employees of such
employer; and
(II) any successor in interest of the employer;
(iii) includes any “public agency”, as defined in
section 203(x) of this title; and

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No. 01-5571 Mitchell v. Chapman, et al. 27
16The FMLA again borrows from FLSA for its definition of “public
agency.” Title 29 U.S.C. § 20 3(x), which is referenced in the FM LA’s
definition of “employer,” provides the following definition of “public
agency”:
(x) “Public Agency” means the Government of the United
States; the government of a State or political subdivision
thereo f; any agency of the United States (including the
United States Postal Service and Postal Rate Comm ission),
a State, or a po litical subdivision of a State; or any
interstate governmental agency.
29 U.S.C. § 20 3 (x).
(iv) includes the General Accounting 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. § 2611.16
The issue of whether the FMLA imposes individual
liability turns on an interpretation of the term “employer.” Of
particular pertinence, the FMLA defines an “employer,” in
part, as “any person who acts, directly or indirectly, in the
interest of the employer.” 29 U.S.C. § 2611(4)(A)(ii)(I). This
language mirrors the FLSA’s definition of employer.
Compare 29 U.S.C. § 2611(4)(A)(ii)(I) with 29 U.S.C.
§ 203(d) (“Employer includes any person acting directly or
indirectly in the interest of any employer in relation to an
employee and includes a public agency, but does not include
a labor agency . . . .”). This is not a coincidence. The
applicable regulations indicate:
An “employer” [under the FMLA] includes any person
who acts directly or indirectly in the interest of an
employer to any of the employer’s employees. The
28 Mitchell v. Chapman, et al. No. 01-5571
17The Secretary of Labor has the authority to issue regulations
pertaining to the FMLA. See 29 U.S.C. § 265 4. Generally, we defer to
the regulations when determining how to interpret a statute, as long as the
regulations present a reasonable interpretation of the statute. See Intermet
Corp. & Subsidiaries v. Comm issioner, 209 F.3d 901, 904 (6th Cir. 2000).
That is, the regulation must “implement the congressiona l mandate in
some reasonable manner.” Un ited States v. C orrell, 389 U.S. 299, 307
(1967).
definition of “employer” in section 3(d) of the Fair
Labor Standards Act (FLSA), 29 U.S.C. 203(d), similarly
includes any person acting directly or indirectly in the
interest of an employer in relation to an employee. As
under the FLSA, individuals such as corporate officers
“acting in the interest of an employer” are individually
liable for any violations of the requirements of the
FMLA.
29 C.F.R. § 825.104 (d);17see also Chandler v. Specialty
Tires of Am., 283 F.3d 818, 827 (6th Cir. 2002) (recognizing
that the provisions of the FMLA generally mirror those
provided in the FLSA) (citation omitted). This Court has
interpreted the FLSA’s “any person who acts, directly or
indirectly, in the interest of the employer” language to impose
individual liability on private-sector employers. See United
States Dep’t of Labor v. Cole Enters., Inc., 63 F.3d 775 (6th
Cir. 1995); Fegley v. Higgins, 19 F.3d 1126 (6th Cir. 1994).
The presence of identical language in the FMLA tends to
support a similar finding. See Darby v. Bratch, 287 F.3d 673,
681 (8th Cir. 2002) (comparing the FMLA and FLSA
definitions of “employer” and determining that each statute
imposes individual liability); see also Cantley v. Simmons,
179 F. Supp. 2d 654, 655-58 (S.D. W. Va. 2002)
(“[I]ndividual liability is permitted under the FMLA.”);
Brunelle v. Cyro Indus., 225 F. Supp. 2d 67, 82 (D. Me. 2002)
(holding that individual liability under the FMLA arises from
a similar definition of employer under the FLSA); Richardson
v. CVS Corp., 207 F. Supp. 2d 733, 741-44 (E.D. Tenn. 2001)
(finding that the majority of the courts have found “that

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No. 01-5571 Mitchell v. Chapman, et al. 29
individuals can be subject to liability under the FMLA”);
Morrow v. Putnam, 142 F. Supp. 2d 1271, 1275-76 (D. Nev.
2001) (holding that individual liability exists under the
FMLA); Longstreth v. Copple, 101 F. Supp. 2d 776, 780
(N.D. Iowa) (same); Carter v. Refrigeration Sales Corp., 49
F. Supp. 2d 1028, 1030 (N.D. Ohio 1999) (recognizing that
the majority of courts extend individual liability in FMLA
claims); Meara v. Bennett, 27 F. Supp. 2d 288, 290 (D. Mass.
1998) (“Although the court has not been able to locate any
Court of Appeals decisions addressing the issue of individual
liability under the recently enacted FMLA, the decisional law
developing at the district court level appears to favor
individual liability.”); Bryant v. Delbar Prods., Inc., 18 F.
Supp. 2d 799, 807-09 (M.D. Tenn. 1998) (noting that “the
majority of courts have determined that the FMLA extends
individual liability to those who control a plaintiff’s ability to
take a leave of absence”); Mercer v. Borden, 11 F. Supp. 2d
1190, 1190 (C.D. Cal. 1998) (“Since the definition of
‘employer’ in the FMLA is identical to the definition of
‘employer’ in the [Fair Labor Standards Act], the Court holds
that individuals are potentially subject to liability under the
FMLA. The plain language of the FMLA compels this
result.”); Rupnow v. TRC, Inc., 999 F. Supp. 1047, 1048
(N.D. Ohio 1998) (“[T]he weight of authority favors
individual liability for a supervisor where the ‘supervisor
exercise[s] sufficient control over the plaintiff’s ability to take
protected leave.’”); Stubl v. T.A. Systems, Inc., 984 F. Supp.
1075, 1083 (E.D. Mich. 1997) (“Although reasonable
arguments could be made that the policy rationale underlying
the Title VII decisions finding no individual liability should
dictate the same result under the FMLA, the plain language of
the statute and the regulations mandate otherwise.”); Waters
v. Baldwin County, 936 F. Supp. 860, 863 (S.D. Ala. 1996)
(finding that “employer” as used in the FMLA parallels
“employer” in the FLSA; therefore, individual liability exists
under the FMLA); Knussman v. Maryland, 935 F. Supp. 659,
664 (D. Md. 1996) (“Liability of individual defendants in
their individual capacities is not foreclosed under the
FMLA.”); Johnson v. A.P. Prod., Ltd., 934 F. Supp. 625 (S.D.
30 Mitchell v. Chapman, et al. No. 01-5571
18But see Carter v. Uniform Rental Serv. Of Culpepper, Inc., 977 F.
Supp. 753, 759 (W.D . Va. 1997) (following Title VII case law and finding
no individual liability under the FMLA); Frizzel v. Southwest Motor
Freight, Inc., 906 F. Supp . 441 (E.D. T enn. 1995) (analogizing the FMLA
to Title VII and rejecting individual liability under the FMLA ).
N.Y. 1996) (holding that “employer” in the FMLA mirrors
that used in the FLSA which imposes individual liability);
Freemon v. Foley, 911 F. Supp. 326 (N.D. Ill. 1991) (same).18
However, the narrow issue before this Court is whether the
FMLA imposes individual liability on public agency
employers. The FMLA’s definition of “employer” segregates
the specific provision regarding individual liability (i.e., the
“directly or indirectly” clause), see 29 U.S.C.
§ 2611(4)(A)(ii)(I) (hereinafter the “individual liability
provision”), from the specific provision addressing “public
agency” employers, see 29 U.S.C. § 2611(4)(A)(iii)
(hereinafter the “public agency provision”). The Court of
Appeals for the Eighth Circuit has determined that this
separation is of little interpretative import, noting that it did
not see “‘why public officials should be exempted from
liability while managers in the private sector are not.’”
Darby, 287 F.3d at 681 (quoting Morrow, 142 F. Supp. 2d at
1275). In contrast, the Court of Appeals for the Eleventh
Circuit has determined that the FMLA does not impose
individual liability on employees of public agencies. See
Wascura v. Carver, 169 F.3d at 683, 686 (11th Cir. 1999).
Notwithstanding the guidance from these decisions, we
respectfully note that neither Darby nor Wascura attempt a
textual analysis of the FMLA. The court in Darby limited its
reasoning to the general proposition that public and private
employers should not be treated separately under the statute.
See Darby, 287 F.3d at 681. The Wascura court concluded
that it was constrained by a prior decision of that court that
did not extend individual liability under the FLSA to public
agency employers. See Wascura, 169 F.3d at 686 (citing
Welch v. Laney, 57 F.3d 1004 (11th Cir. 1995)). By

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No. 01-5571 Mitchell v. Chapman, et al. 31
19All further citations to “Section” shall refer to Title 29 of the
United States Code.
addressing the issue in terms of the FLSA, the Eleventh
Circuit avoided the potential interpretive dilemma posed in 29
U.S.C. § 2611(4).
Similarly, the district courts have resolved the issue with
conflicting results. See Morrow, 142 F. Supp. 2d at 1273
(allowing FMLA suit against individual postal supervisors);
Keene, 127 F. Supp. 2d at 776 (holding no governmental
individual liability under the FMLA); Klivitis v. County of
Luzerne, 52 F. Supp. 2d 403, 412 (allowing FMLA suit
against district justice in individual capacity); Meara, 27 F.
Supp. 2d at 291 (allowing FMLA suit against the district
attorney in his individual capacity); Knussman, 935 F. Supp.
at 664 (allowing FMLA individual capacity suit against
officers in state highway patrol); Freemon, 911 F. Supp. at
330-31 (allowing FMLA supervisory liability claim against
state hospital employee); Frizzell, 906 F. Supp. at 449
(determining no supervisory liability for public officials under
the FMLA).
Our independent examination of the FMLA’s text and
structure reveals that the statute does not impose individual
liability on public agency employers. Three factors compel
this conclusion.
First, the section defining “employer,” 29 U.S.C.
§ 2611(4)(A), explicitly separates the individual liability
provision and public agency provision into two distinct
clauses. Section 2611(4)(A)19 commences with “‘The term
employer -- ’”, and follows with four clauses addressing what
the term “employer” “means” and “includes.” See 29 U.S.C.
§ 2611(4)(A). The use of an em dash following “employer”
indicates that clauses (i), (ii), (iii), and (iv) modify the term
32 Mitchell v. Chapman, et al. No. 01-5571
20Througho ut the FM LA, the use of the em dash indicates that the
provisions following the em dash mod ify the immediately preceding
provision or term. See, e.g., 29 U.S.C. § 260 1(a) & (b); § 2611 (2)(A) &
(B), (6), (11), (12); § 2612 (b)(2),(e)(2), (f);§ 2613(b); § 261 4(a), (c)(2),
(3); § 261 5(b); § 26 17; § 261 8; § 2 632 .
21Congress added Section 261 1(4)(A)(iv) several years following the
enactment o f the FM LA. See Pub.L. 104-1, § 20 2(c)(1)(A) (1995).
“employer.”20 Therefore, the plain text of the statute provides
the following definition of “employer”:
(1) An employer 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 the 20 or more calendar
workweeks in the current or proceeding calendar year.
See 29 U.S.C. § 2611 (4)(A)(i).
(2) An employer includes any person who acts directly
or indirectly in the interest of an employer to any of the
employees of such employer; and an employer includes
any successor in interest of an employer. See 29 U.S.C.
§ 2611 (4)(A)(ii).
(3) An employer includes any “public agency” as that
term is defined in the FLSA. See 29 U.S.C. § 2611
(4)(A)(iii).
(4) An employer includes the General Accounting Office
and the Library of Congress.21 See 29 U.S.C. § 2611
(4)(A)(iv).
The relationship between “employer” and clauses (i) -(iv)
is not in contention. Rather, it is the purported
interrelationship among clauses (i)-(iv) that yields conflicting
views regarding whether the FMLA imposes individual
liability on public agency employers. Compare Keene, 127
F. Supp. 2d at 775 (explaining that Congress separated the

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No. 01-5571 Mitchell v. Chapman, et al. 33
individual liability provision from the public agency
provision in an effort to clarify the “commingling” of public
agency and private employers evident in the FLSA) with
Morrow, 142 F. Supp. 2d at 1273 (interpreting the individual
liability provision and public agency provision as inter-
related.) An examination of Section 2611(4)(A)’s text and
structure demonstrates that the individual liability provision
and public agency provision are separate and distinct.
As noted earlier, the FMLA introduces related provisions
through the use of the em dash. In accordance with this
practice, Section 2611(4)(A) implements the em dash into its
definition of employer. See 29 U.S.C. § 2611(4)(A).
Similarly, Section 2611(4)(A)(ii) utilizes the em dash to
establish a relationship between the individual liability
provision and the provision addressing successors in interest.
See 29 U.S.C. § 2611(4)(A)(ii). Notwithstanding this
repeated and consistent use of the em dash, Section
2611(4)(A) lacks any punctuation demonstrating an inter-
relationship between clauses (ii)-(iv). Indeed, the separation
of otherwise related concepts (i.e., what the term “employer”
“includes”) into distinctly enumerated clauses compels an
interpretation that treats each clause in an independent
manner. This is particularly the case in light of clause (ii)’s
inclusion of an em dash preceding the individual liability
provision and successor in interest provision. See 29 U.S.C.
§ 2611 (4)(A)(ii). It stands to reason that if clauses (ii) - (iv)
are similarly inter-related, the text of the statute would
likewise provide punctuation or analogous language linking
the clauses. In the absence of such guidance, and in
accordance with the plain text’s separation of the clauses into
distinct provisions, the structure of Section 2611(4)(A)
patently demonstrates that the individual liability provision
and public agency provision are separate and distinct.
The text of Section 2611(4)(A) further compels an
interpretation that separates the individual liability provision
from the public agency provision. The straightforward
interpretation advanced supra, demonstrates that the term
34 Mitchell v. Chapman, et al. No. 01-5571
22This interpretation underlies our prior determination that the
FM LA extends individual liability to p rivate-sector emplo yers.
employer “means” what is included in clause (i) and
“includes” what is provided in clauses (ii), (iii), and (iv). On
the other hand, the commingling of clauses (i)-(iv) into the
term “employer” yields an interpretation that renders other
provisions of the statute superfluous, as well as creates
several oddities.
Initially, an interpretation that commingles clauses (i) and
(ii) into the definition of employer presents little difficulty.
For instance: “The term employer means any person engaged
in interstate commerce . . . who employees 50 or more
employees . . .; and includes any person who acts directly or
indirectly in the interest of any person engaged in interstate
commerce who employs 50 or more employees . . . ; and any
successor in interest of any person engaged in interstate
commerce . . . who employs fifty or more employees . . . .”22
See 29 U.S.C. § 2611(4)(A)(i) & (ii). However, when the
public agency provision is introduced into an interpretation
with clauses (i) and (ii), the statute provides -- “the term
employer means any person engaged in interstate commerce
. . . who employees 50 or more employees . . .; and includes
any person who acts directly or indirectly in the interest of
any person engaged in interstate commerce . . .who employs
50 or more employees . . . ; and any successor in interest of
any person engaged in interstate commerce . . . who employs
fifty or more employees; and includes any public agency
engaged in interstate commerce . . . who employs 50 or more
employees . . .; and includes any person who acts directly or
indirectly, in the interest of the public agency engaged in
interstate commerce . . . who employs fifty or more
employees; and any successor in interest of the public agency
. . .engaged in interstate commerce . . . who employs fifty or
more employees . . . .” See 29 U.S.C. 2611(4)(A)(i),(ii), &
(iii).

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No. 01-5571 Mitchell v. Chapman, et al. 35
23A plain text interpretation of the statute would require
commingling (i), (ii), (iii), and (iv). In the interests of convenience and
brevity, the Co urt shall proceed with its analysis of (iv) by omitting (iii)
as the difficulties of clause (iii) have bee n previously d iscussed .
Beyond the obvious redundancy in this interpretation, the
commingling of clause (i) and (ii) with the public agency
provision renders superfluous Section 2611(4)(B). See 29
U.S.C. 2611(4)(B) (“[A] public agency shall be considered to
be a person engaged in commerce or in an industry or activity
affecting commerce.”). In addition, it is well-settled that a
public agency does not have to meet the 50 employee
requirement to be considered an employer under the statute.
See 29 C.F.R. § 825.104(a) (“Public agencies are covered
employers without regard to the number of employees
employed.”). Consequently, an interpretation commingling
clauses (i), (ii), and (iii) into the FMLA’s definition of
employer cannot be sustained. See Lake Cumberland Trust,
954 F.2d at 1222.
The result is similarly untenable when the interpretation
aggregates clause (iv) with clauses (i) and (ii).23 The result
yields the following: “The term employer means any person
engaged in interstate commerce . . . who employs 50 or more
employees . . .; and includes any person who acts, directly or
indirectly, in the interest of any person in interstate commerce
. . . who employs fifty or more employees. . . ; and includes
a successor in interest of any person engaged in interstate
commerce . . . who employs fifty or more employees . . . ;
and includes the General Accounting Office and the Library
of Congress; and includes a successor in interest of the
General Accounting Office and the Library of Congress.” See
29 U.S.C. § 2611(4)(A)(i), (ii), & (iv). This interpretation
implies that the FMLA extends specific protection to
employees of the GAO and the Library of Congress from
future successors in interest. While the Court would at least
consider, albeit skeptically, an interpretation of the FMLA
that included protections against a successor in interest of
36 Mitchell v. Chapman, et al. No. 01-5571
24Notwithstanding the relatively unique factual scenario addressing
successive public entities, the Morrow court successfully endeavo red to
provide a specific instance where an FM LA suit was allowed against the
Federal Deposit Insurance Corporation as a successor in interest to the
Reso lution Trust Co rporation. See Morrow, 142 F. Supp. 2d at 1273
(citing Rhoa ds v. FDIC, 956 F. Sup p. 12 39, 1 254 ( D. M d. 19 97)).
25The Library of Congress, established in 1800, is the nation’s oldest
federal cultural institution. The Budget and Accounting Act of 1921, 42
Stat. 20 , created the G AO .
public agencies in general,24 it is an exercise in absurdity to
consider that the FMLA sought to protect employees of two
long-standing federal entities from threats posed by any future
successors in interest.25 Accordingly, we must reject an
interpretation that creates such a result. See Lake
Cumberland Trust, 954 F.2d at 1222.
A third factor also undermines an interpretation of
employer that extends the individual liability provision to
public agencies. A definition of employer that incorporates
the individual liability provision and public agency provision
into a single clause is substantially similar to, if not identical,
to the FLSA’s definition of employer. Cf. 29 U.S.C. § 203
(d) (“Employer includes any person acting directly or
indirectly in the interest of any employer in relation to an
employee and includes a public agency, . . .”). As discussed
supra, the FMLA adopts several of the FLSA’s provisions.
However, in each instance where the FMLA adopts a
provision of the FLSA, the FMLA refers directly to the
FLSA, rather than provides a restatement of the FLSA’s
provision. The court in Keene explained the significance of
the FMLA’s modification of the FLSA’s “employer”:
In 1974 Congress merely engrafted “Public Agency” into
the FLSA by adding to an existing definition for private
employers. This did create an ambiguous situation
concerning the liability of public agency employees.
But, in the FMLA, Congress explicitly took “Public

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No. 01-5571 Mitchell v. Chapman, et al. 37
26The Keene court’s analysis of the legislative history of the FLSA ’s
public agency provision is in accord with prior decisions of the United
States Supreme Court, as well as the decisions o f this Court. See, e.g.,
Ga rcia v. San Antonio Metro. Transit Auth., 469 U.S . 528 (1985 );
Ma rshall v. Owensbo ro-Daviess Co unty H osp., 581 F.2d 116 (6th Cir.
197 8).
Agency” out of the private employer definition and
disconnected it from liability based on a person acting
directly or indirectly in the interest of an employer.
Therefore, a better way to view the situation is that the
FMLA corrected the ambiguity of the FLSA, as opposed
to letting the ambiguity of the FLSA control the
interpretation of the FMLA.
Keene, 127 F. Supp.2d at 775.26 This rationale is entirely
persuasive in light of the FMLA’s text and framework.
We therefore conclude that the FMLA’s individual liability
provision does not extend to public agencies. Three factors
emanating from the text and framework of the statute support
this conclusion. First, Section 2611(4)(A) segregates the
provision imposing individual liability from the public agency
provision. Second, an interpretation that commingles the
individual liability provision with the public agency provision
renders certain provisions of the statute superfluous and
results in several oddities. Finally, as evidenced by other
provisions of the statute, the FMLA distinguishes its
definition of employer from that provided in the FLSA by
separating the individual liability and public agency
provisions.
We note in passing that several factors extending beyond
the plain text of the statute support our conclusion against
individual liability for public employers. First, our
interpretation is in accord with the regulations propounded by
the Secretary of Labor. Title twenty nine C.F.R. § 825.104(a)
provides that “employers covered by FMLA also include any
person acting, directly or indirectly, in the interest of a
38 Mitchell v. Chapman, et al. No. 01-5571
27In Wong-Op asi v. Tennessee State Univ., Nos. 99-5658, 99-5660,
2000 U.S. App. LE XIS 21242, filed Aug. 16, 2000, this Court addressed,
inter alia, an FLSA claim asserted against administrators o f a state college
and ultimately concluded that the claim lacked merit. As an unpublished
opinion, the decisio n is not binding precedent. See Bell v. Johnson, 308
F.3d 594 (6th Cir. 2002). Moreover, in light of the ultimate disposition
of the case, the issue of individual liability for public agency employers
was of little relevance. Simply, this Court has not addressed a textual
analysis of whether the F LSA impo ses individual liability on public
agency employers.
covered employer to any of the employees of the employer,
any successor in interest of a covered employer, and any
public agency.” 29 C.F.R. § 825.104(a). The regulation’s
express separation between public agency and the “directly or
indirectly” language supports our similar interpretation of
Section 2611(4)(A). In addition, the example of individual
liability provided in the regulations exclusively pertains to the
corporate setting, thereby evincing an intent to limit such
liability to the private sector. See 29 C.F.R. § 825.104 (d)
(“As under the FLSA, individuals such as corporate officers
‘acting in the interest of an employer’ are individually liable
for any violations of the requirements of the FMLA.”). In
that same vein, we note that this Court has never extended
individual liability to public employees under the FLSA.27
Consequently, in addition to the text and structure of the
statute, the regulations interpreting the FMLA and this
Court’s lack of precedent to the contrary, compel the
conclusion that the FMLA does not impose individual
liability on public agency employers.
Accordingly, we conclude that the district court correctly
interpreted the FMLA as to preclude Mitchell’s individual
capacity claims under the statute.
V.
For the foregoing reasons, the decision of the district court
granting summary judgment in favor of the defendants is
AFFIRMED.

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