Labor & Employment – FMLA – Federal Employee – Civil Practice – Subject Matter Jurisdiction – Res Judicata

(Lawyers Weekly No. 002-026-17, 10 pp.) (W. Earl Britt, S.J.) 5:14-cv-00260; E.D.N.C.

Holding: As a Non-Appropriated Fund employee of the Army, plaintiff is covered under Title II of the Family and Medical Leave Act and has no private right of action for enforcement against the federal government. Therefore, to the extent plaintiff brings an FMLA claim against the Department of the Army, this court lacks jurisdiction over her claim.

The court grants defendants’ motion to dismiss as to plaintiff’s FMLA claim but denies the motion as to her breach of contract claim.

The Fourth Circuit has not ruled on the issue of whether public employees can be sued in their individual capacities under the FMLA. District courts in the Fourth Circuit are split on this issue.

However, the district courts that have determined that FMLA liability can attach to public officials as individual persons have done so only in circumstances where an employee’s claim was governed by Title I of the FMLA. Given that plaintiff falls within the ambit of Title II of the FMLA, there is no waiver of sovereign immunity for her to bring a cause of action in this court against any of the defendants. Accordingly, plaintiff’s FMLA claim is dismissed for lack of subject matter jurisdiction.

Even though the complaint clearly discloses that plaintiff previously filed a lawsuit against Colonel Jeffrey Sanborn for barring her from Fort Bragg, since that lawsuit was dismissed without prejudice, the dismissal does not constitute a final judgment on the merits for purposes of res judicata.

Motion granted in part and denied in part.