                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  _____________

                                 No. 01-2006WM
                                 _____________

Susan C. Darby,                           *
                                          *
             Appellant,                   *
                                          *
       v.                                 *
                                          *
                                          *
Floyd Bratch; Kansas City, Missouri       *
Police Department; Kansas City            *
Board of Police Commissioners;            *
Joseph J. Mulvihill; Dennis C. Eckold; *
and Stacey Daniels, Dr.,                  *
                                          *
             Appellees,                   *   On Appeal from the United
                                          *   States District Court
Jeffrey J. Simon,                         *   for the Western District
                                          *   of Missouri.
             Defendant,                   *
                                          *
Kay Barnes; City of Kansas City,          *
Missouri; Doug Weishar, individually *
and in his official capacity as a         *
manager for the City of Kansas City,      *
Missouri, and the Kansas City,            *
Missouri, Police Department;              *
Rosilyn Allen, individually and in her *
official capacity as a manager for the    *
City of Kansas City, Missouri, and        *
the Kansas City, Missouri, Police         *
Department; Terrie Hagedorn,              *
individually and in her official capacity *
as a manager for the City of Kansas     *
City, Missouri, and the Kansas City,    *
Missouri, Police Department; and        *
Karl Zobrist,                           *
                                        *
             Appellees.                 *
                                   ___________

                             Submitted: January 17, 2002
                                Filed: April 11, 2002 (Corrected 4/22/02)
                                 ___________

Before WOLLMAN,1 Chief Judge, RICHARD S. ARNOLD and HANSEN,2 Circuit
      Judges.
                             ___________

RICHARD S. ARNOLD, Circuit Judge.


      Susan Darby brought this action alleging that the defendants, the Kansas City,
Missouri, Police Department, the Kansas City Board of Police Commissioners, the
City of Kansas City, Missouri, and several individual employees,3 violated the
Americans with Disabilities Act, 42 U.S.C. § 12112(a), and the Missouri Human


      1
       The Hon. Roger L. Wollman stepped down as Chief Judge of the United States
Court of Appeals for the Eighth Circuit at the close of business on January 31, 2002.
He has been succeeded by the Hon. David R. Hansen.
      2
      The Hon. David R. Hansen became Chief Judge of the United States Court of
Appeals for the Eighth Circuit on February 1, 2002.
      3
       These employees include Floyd Bratch, Joseph Mulvihill, Dennis Eckold,
Stacey Daniels, Jeffrey Simon, Kay Barnes, Doug Weishar, Rosilyn Allen, Terrie
Hagedorn, and Karl Zobrist. Doug Weishar, Rosilyn Allen, and Terrie Hagedorn
were sued individually and in their official capacity as managers for the city of
Kansas City, Missouri, and the Kansas City, Missouri, Police Department.

                                         -2-
Rights Act, Mo. Rev. Stat. § 213.055 (2000). She also claimed that the defendants
retaliated against her in violation of the Family and Medical Leave Act, 29 U.S.C.
§ 2601 et seq. In addition, the plaintiff brought claims for breach of her employment
contract and violation of her constitutional rights, contrary to 42 U.S.C. § 1983. The
defendants moved for summary judgment, and this motion was granted by the District
Court. Ms. Darby appeals from the order of the District Court.

       Specifically, Ms. Darby presents four major arguments on appeal:4 first, that
the District Court incorrectly determined that the defendant, the Kansas City Board
of Police Commissioners, was immune from suit pursuant to the Eleventh
Amendment; second, that the Court incorrectly held that plaintiff failed to establish
a prima facie case of retaliation under the Family and Medical Leave Act; third, that
the Court erred in determining that plaintiff failed to establish a prima facie case of
disability discrimination under the Americans with Disabilities Act; and fourth, that
the Court failed to apply the Missouri Human Rights Act to disability discrimination
in the area of employment. We affirm in part and reverse in part. We hold that the
Kansas City Board of Police Commissioners is not immune from suit under the
Eleventh Amendment, and that, on the present state of the record, triable issues of fact
were presented under the Family and Medical Leave Act. In addition, we hold that
the Missouri Human Rights Act does apply to disability discrimination in the area of
employment, but we affirm the judgment on that claim on other grounds. We also
affirm as to the claim under the Americans with Disabilities Act.



      4
        It seems that the breach-of-contract and § 1983 claims are not pressed on
appeal. In any event, we find no error in the action of the District Court dismissing
these claims on summary judgment. In addition, plaintiff argues that the District
Court erred in dismissing her claim of retaliation for conduct protected by the
Americans with Disabilities Act. As defendants argue, this claim was not pleaded in
the District Court, nor did that Court’s opinion address it. We therefore decline to
reach it on appeal.

                                          -3-
                                           I.

       In 1993, Ms. Darby began working for the Kansas City Police Department
(KCPD) as a dispatcher in the communications unit. In 1994, she began experiencing
symptoms of thyroid disease, including migraine headaches, heavy menstrual
bleeding, weakness from loss of blood, difficulty concentrating, chills, digestive
problems, trouble sleeping, bloating, extreme fatigue, difficulty breathing, increased
heart rate, and anxiety. Ms. Darby was diagnosed with Graves’s disease, a form of
hyperthyroidism.

        In March 1998, Ms. Darby applied for a transfer to the police academy. One
of her supervisors, Captain Doug Weishar, advised Ms. Darby that he would approve
this transfer if her use of sick leave decreased over the next six months. Soon after
this agreement was made, Captain Weishar was replaced by Captain Rosilyn Allen.
Captain Allen knew of the agreement between Ms. Darby and Captain Weishar, and
indicated that she would honor it. Both were aware of Ms. Darby’s diagnosis of
Graves’s disease. Between January 1998 and May 1998, Ms. Darby missed ten days
and one hour of work due to her thyroid disease. On May 18, 1998, Captain Allen
“disapproved” Ms. Darby’s transfer request and passed the request on to her
superiors, noting that “the monitoring of Dispatcher Darby’s work attendance will
continue . . ..” Appellant’s Appendix (App.) 289. Ms. Darby’s thyroid disease
continued to hinder her ability to attend work regularly.

       Ms. Darby met with Captain Allen and Captain Terrie Hagedorn to discuss an
improper helicopter “ride-along” on September 18, 1998. In a “ride-along,” an
employee rides in a helicopter along with the pilot in order to observe the job the pilot
is doing. This can be a regular part of training. The defendants, however, contend
that the ride-along was improper because Ms. Darby did not obtain advance
permission for it. The plaintiff’s position is that the policy requiring advance
permission did not apply to the portion of the Police Department in which she

                                          -4-
worked. The policy as written, App. 203, appears to support plaintiff’s position. At
the meeting with Captain Allen and Captain Hagedorn, Ms. Darby was advised that
continued absences from work would not be tolerated. Ms. Darby was also informed
that she was being transferred to a new shift with a different zone assignment.5
During the meeting, Ms. Darby stated that she thought a transfer was discriminatory.
According to Ms. Darby’s testimony, Captain Allen responded, “I can show you
discrimination.” App. 291. The record indicates that Captain Allen knew of Ms.
Darby’s intention to use FMLA leave prior to this meeting.

       On October 9, 1998, Ms. Darby applied for Family and Medical Leave Act
leave. She met with Supervisors Hoskins and Hagedorn to discuss her request. At
this time, she was presented with an amended mid-year evaluation that included a
reference to an excessive use of sick time. As stated by the District Court, it is
“[u]ncontroverted in the record . . . that Allen instructed Hagedorn to amend the mid-
year evaluation for Darby to include a reference to Darby’s absences due to her use
of sick time.” App. 292. These instructions were allegedly based on the attendance
policy at the KCPD, Policy 98-2. However, because the attendance policy did not
permit an employee to be disciplined for the use of sick leave, but did allow an
employee to be disciplined for the use of unpaid leave, Supervisor Hagedorn
recommended that Ms. Darby be terminated for her use of unpaid leave. According
to the defendants, Ms. Darby was also presented with two Incident Reports, one
relating to the helicopter ride-along and one relating to excessive use of sick time.6




      5
       The defendants assert that the transfer was necessary due to a manpower
shortage. However, the record indicates that Ms. Darby was never actually
transferred to a new shift.
      6
       An Incident Report serves as a written reprimand in the KCPD. It can lead to
other forms of discipline, including termination of employment.

                                         -5-
       While on FMLA leave, Ms. Darby received an Incident Report citing her
absences from work and the use of her unpaid leave. The “Description of Allegation”
reads, “dispatcher Darby has continuously utilized unpaid leave each of the last three
years, in excess of the paid leave amount that the department grants employees of her
tenure.” App. 227. The report goes on to include the number of hours of unpaid
leave Ms. Darby was granted in 1996, 1997, and 1998.7 There was no
recommendation of discipline made in the revised Incident Report.

        In April 1999, Ms. Darby planned to return to work. Because the Incident
Reports were still pending, she contacted Captain Allen to determine if Captain Allen
was planning to use the Reports to terminate her employment. When Ms. Darby met
with Captain Allen, she was informed that because of her use of sick time, she would
not be promoted. Ms. Darby then returned to work with the same job assignment and
the same rate of pay as she had before her FMLA leave. However, Ms. Darby
testified that after returning to work she was not placed on the schedule or on roster
lists used to circulate information.8 On April 28, 1999, Ms. Darby resigned from the
KCPD. Because the Incident Reports regarding Ms. Darby’s use of unpaid leave and
the ride-along are still pending, she is precluded from being rehired by the KCPD.

                                          II.

     This Court reviews a grant of summary judgment de novo. Iowa Coal Min. Co.
v. Monroe County, 257 F.3d 846, 852 (8th Cir. 2001). After reviewing the record in

      7
      Ms. Darby was absent pursuant to her FMLA leave request on 39 days in
1998. App. 106.
      8
        In addition, Ms. Darby testified that before she returned to work, Captain
Allen told her that she was not welcome, and that, after returning to work, none of the
other employees would have anything to do with her. These circumstances, the
plaintiff argues, make out a genuine issue of material fact with respect to constructive
discharge. For reasons stated later, we disagree.

                                          -6-
the light most favorable to the nonmoving party, the Court will affirm the decision
if there are no genuine issues of material fact. Id.

                        A. Eleventh Amendment Immunity

       We first address Ms. Darby’s contention that the District Court erred in
granting Eleventh Amendment immunity to the Kansas City Board of Police
Commissioners. The District Court determined that the Kansas City Board of Police
Commissioners was a political subdivision of the state of Missouri, and was,
therefore, entitled to immunity. However, the District Court did not have the benefit
of this Court’s opinion in Gorman v. Easley, 257 F.3d 738 (8th Cir. 2001), cert.
denied, 122 S. Ct. 865 (2002). In that case, we held that the Kansas City Board of
Police Commissioners does “not constitute an arm of the state for purposes of
Eleventh Amendment immunity.” Id. at 745. We based our reasoning, in part, on the
Supreme Court’s ruling in Auer v. Robins, 519 U.S. 452 (1997), in which the Court
held that the St. Louis Board of Police was “not an arm of the state” for Eleventh
Amendment purposes. Gorman, 257 F.3d at 744 (internal quotations omitted).

       Because our decision in Gorman is controlling on this issue, the District
Court’s determination that the Kansas City Board of Police Commissioners was
entitled to Eleventh Amendment immunity must be reversed.

                        B. Family and Medical Leave Act

      Next, we address Ms. Darby’s argument that the District Court erred in
determining that she failed to establish a prima facie case of FMLA retaliation.




                                         -7-
       The FMLA provides eligible employees9 up to 12 workweeks of unpaid leave
during any 12-month period. 29 U.S.C. § 2612. An employee must provide notice
to an employer that she plans to take FMLA leave. 29 U.S.C. § 2612(e)(2). The
FMLA prohibits employers from discriminating against employees for asserting
rights under the Act. 29 U.S.C. § 2615(a)(2). This prohibition necessarily includes
consideration of an employee’s use of FMLA leave as a negative factor in an
employment action. To establish a prima facie case of FMLA retaliation, an
employee must show that she engaged in activity protected under the Act, that she
suffered an adverse employment action by the employer, and that a causal connection
existed between the employee’s action and the adverse employment action.
Richmond v. ONEOK, Inc., 120 F.3d 205, 208 (10th Cir. 1997).

      The District Court determined that Ms. Darby did not suffer an adverse
employment action. We disagree. Specifically, Ms. Darby points to three actions
taken by her employer that qualify as adverse employment actions.

       First, Ms. Darby was told upon returning to work in April 1999 that she would
not be promoted. This is sufficient under our precedent to find an adverse
employment action. See Davis v. Sioux City, 115 F.3d 1365 (8th Cir. 1997). In that
case, we held that the transfer of an employee to another position of greater salary yet
“ha[ving] fewer opportunities for salary increases” was a sufficiently adverse
employment action to sustain a retaliation claim under Title VII. Davis, 115 F.3d at
1369. Additionally, we have held that “[u]pon return from FMLA leave, employees
are entitled to reinstatement to the same or an equivalent position without the loss of



      9
        An eligible employee is defined as an employee “who has been employed —
(i) for at least 12 months by the employer with respect to whom leave is requested
under section 2612 of this title; and (ii) for at least 1,250 hours of service with such
employer during the previous 12-month period.” 29 U.S.C. § 2611(2)(A). There is
no dispute that Ms. Darby is an “eligible employee.”

                                          -8-
benefits . . ..” Spangler v. Federal Home Loan Bank of Des Moines, 278 F.3d 847,
851 (8th Cir. 2002).

       In the case at hand, Ms. Darby was specifically informed that she would not be
promoted because of her use of sick leave. At this time, Ms. Darby had missed 60
days pursuant to her FMLA leave request in 1999. The record indicates that she was
absent on unpaid leave for only five other days during 1999. App. 106. Though Ms.
Darby was reinstated to the same position as she had before taking FMLA leave, it
is apparent that she was reinstated with a definite loss of a benefit, namely the ability
to be promoted. There are three types of absences involved here: paid sick leave,
which presumably is a contractual right of the employee, FMLA leave, which is
unpaid, and other unpaid leave. Of course, an employer could discipline an employee
for taking sick leave when she is not sick, but there is no evidence in this record to
that effect. In addition, an employee could be disciplined for taking unpaid leave not
covered by the FMLA, but, as we have noted, there were only five such days during
1999. The employer does not argue, at least on this appeal, that its discipline was
based upon these five days.

       Second, Ms. Darby was otherwise disciplined for engaging in activity protected
by the FMLA. The Incident Report that she received while on FMLA leave
specifically listed “unpaid leave” as a problem. FMLA leave is a form of unpaid
leave. 29 U.S.C. § 2612. It was also for this reason that Supervisor Hagedorn
recommended her termination. When Ms. Darby exercised rights protected by the
Act (taking unpaid leave under the FMLA), she was disciplined by receiving a written
reprimand and was recommended for termination. These actions are also sufficiently
adverse to sustain a prima facie case for FMLA retaliation. We do not understand
defendants to be arguing that the discipline was based solely on the five days of non-
FMLA unpaid leave, or even that, but for those days, discipline would not have been
imposed. This issue is open for further development on remand.



                                          -9-
        Third, because the Incident Report regarding Ms. Darby’s use of unpaid leave
is currently pending, KCPD policies make it impossible for her to be rehired. This
too is sufficiently adverse to Ms. Darby’s employment to sustain a claim of retaliation
under the FMLA. Again, the Incident Report focused on the use of unpaid leave by
Ms. Darby, an activity protected by statute.10

       For these reasons, we conclude that the plaintiff presented sufficient evidence
to create a genuine issue of material fact on the question whether defendants
retaliated against her for her use of FMLA leave. She did not have an exemplary
attendance record, to say the least, but her statutory rights, together with her
contractual right to sick leave, must be respected. On the record presently before us,
a reasonable juror could conclude that there was a causal connection between adverse
employment actions suffered by the plaintiff and her use of FMLA leave. Summary
judgment is therefore inappropriate on this question.

       The next issue that must be addressed is whether a retaliation claim under the
FMLA can be brought against public officials in their individual capacities.11 This
issue is one of first impression for our Court. Other courts have analyzed this issue
by comparing the definition of employer under the FMLA to the definition of
employer under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq.12 The

      10
         Another Incident Report, relating to the allegedly improper ride-along, is also
still pending, but, as we have noted, there is a legitimate issue as to whether the ride-
along policy relied upon applied to Ms. Darby. If it did not, the use of this Incident
Report might be pretextual.
      11
           This issue affects only the defendants Weishar, Allen, and Hagedorn.
      12
         See Wascura v. Carver, 169 F.3d 683 (11th Cir. 1999) (holding public
officials in their individual capacities are not employers under the FLSA or the
FMLA). But see Luder v. Endicott, 253 F.3d 1020, 1022 (7th Cir. 2001) (holding,
under the FLSA, that Wascusa is inconsistent with Hafer v. Melo, 502 U.S. 21, 28
(1991); Morrow v. Putnam, 142 F. Supp. 2d 1271 (D. Nev. 2001) (disagreeing with

                                          -10-
FMLA defines employer as “any person who acts, directly or indirectly, in the interest
of an employer to any of the employees of such employer[.]” 29 U.S.C.
§ 2611(4)(A)(ii)(I). This language is very similar to the definition of employer under
the FLSA. Under the FLSA, an employer is defined as “any person acting directly
or indirectly in the interest of an employer in relation to an employee . . ..” 29 U.S.C.
§ 203(d). The implementing regulations of the FMLA recognize the similarities of
the FMLA and FLSA definitions of employer. 29 C.F.R. § 825.104(d). These
regulations also suggest that individual liability arises under the FMLA. Ibid.

       This Court has addressed the issue of personal liability of an employer under
the FLSA in Rockney v. Blohorn, 877 F.2d 637 (8th Cir. 1989). In that case, the
Court decided whether personal liability for an employer exists under ERISA. In the
course of our discussion, we compared the definition of employer under ERISA to
that under the FLSA. We implicitly assumed in Rockney that individual liability does
exist under the FLSA. However, we have not directly addressed the issue of
individual liability for public officials under either the FLSA or the FMLA.



the Eleventh Circuit and stating public officials in their individual capacities are
employers under the FLSA and FMLA); Longstreth v. Copple, 101 F. Supp. 2d 776
(N.D. Iowa 2000) (holding private employers in their individual capacities are
employers under FMLA); Kilvitis v. County of Luzerne, 52 F. Supp. 2d 403 (M.D.
Pa. 1999); Meara v. Bennett, 27 F. Supp. 2d 288, 291 (D. Mass. 1998) (noting that
the definition of employer under the FMLA “suggests that individuals are
contemplated as defendants”); Knussman v. Maryland, 935 F. Supp. 659 (D. Md.
1996).

       Regulations under the FMLA, 29 C.F.R. § 825.104(d) (2001), also take the
position that an “employer” includes “individuals . . . ‘acting in the interest of an
employer’,” and states that such individuals “are individually liable for any violations
of the requirements of FMLA.” The example given in the regulations is from the
private sector (“corporate officers”), but, as the Seventh Circuit observed in Luder,
a distinction between the public and private sectors in this regard cannot be sustained.

                                          -11-
        It seems to us that the plain language of the statute decides this question.
Employer is defined as “any person who acts, directly or indirectly, in the interest of
an employer to any of the employees of such employer[.]” 29 U.S.C.
§ 2611(4)(A)(ii)(I). This language plainly includes persons other than the employer
itself. We see no reason to distinguish employers in the public sector from those in
the private sector. See Morrow, 142 F. Supp. 2d at 1275 (stating that opinions which
hold public officials are not subject to individual liability “do not explain why public
officials should be exempted from liability while managers in the private sector are
not.”). If an individual meets the definition of employer as defined by the FMLA,
then that person should be subject to liability in his individual capacity.

       The individual defendants in this case also assert the defense of qualified
immunity. This argument is without merit. The Family and Medical Leave Act
creates clearly established statutory rights, including the right to be free of
discrimination or retaliation on account of one’s exercise of leave rights granted by
the statute.13 Qualified immunity is also asserted as a defense to the claim under 42
U.S.C. § 1983, but we have already held that the District Court correctly dismissed
this claim.

                         C. Americans with Disabilities Act

       We next address Ms. Darby’s contention that the District Court erred in
determining that she failed to present a prima facie case under the ADA. The ADA
prohibits employers from discriminating “against a qualified individual with a
disability because of the disability of such individual . . ..” 42 U.S.C. § 12112(a).




      13
       Defendants have not argued that they should receive qualified immunity
because of uncertainty over the individual liability of public officials.

                                         -12-
       In order to establish a prima facie case of ADA discrimination, Ms. Darby must
show that: (1) she is disabled as defined by the ADA; (2) she is qualified to perform
the essential functions of her job with or without reasonable accommodation; and (3)
she suffered an adverse employment action due to her disability. Fjellestad v. Pizza
Hut of America, Inc., 188 F.3d 944, 948 (8th Cir. 1999).

       The District Court held that Ms. Darby is “disabled within the meaning of the
ADA,” and there seems to be no dispute about that. App. 299. Defendants assert,
however, that she was not qualified to perform the essential functions of the job, one
of which is regular attendance. We must agree with defendants in part. Presence at
the job is no doubt essential, except in cases where the job could be done from home,
which is not claimed here. See Nesser v. Trans World Airlines, Inc., 160 F.3d 442,
445-46 (8th Cir. 1998). Ms. Darby says that transfer to the police academy would
have been a reasonable accommodation, but again, attendance would surely be
essential.

      As we understand plaintiff’s ADA claim, it is that she was discharged on
account of her disability. The difficulty is that plaintiff was not discharged. She
voluntarily resigned. Defendants had taken her back as an employee, and she had
been on the job for only a few days when she quit. Constructive discharge would be
a theoretically sound response to this argument, except that plaintiff had been back
at work for only a short period of time. We do not believe a reasonable trier of fact
could have found that plaintiff had stuck it out long enough to conclude reasonably
that working conditions were intolerable. Accordingly, the dismissal of the ADA
claim will be affirmed.

                          D. Missouri Human Rights Act

    Ms. Darby also argues that the District Court failed to apply the Missouri
Human Rights Act to the area of employment and limited its application to

                                        -13-
discrimination in housing. Defendants concede that the MHRA does apply to
discrimination in employment and that the District Court erred in ruling to the
contrary. Appellee’s Brief at 10. We agree. However, a claim under the MHRA is
analyzed in the same manner as a claim under the ADA. See Nesser, 160 F.3d at 445.
Therefore, if summary judgment is appropriate on Ms. Darby’s ADA claim, it is
appropriate on her MHRA claim. Because we agree with the District Court that Ms.
Darby failed to present sufficient evidence for a reasonable juror to conclude that Ms.
Darby was discriminated against under the ADA, we affirm the Court’s grant of
summary judgment on Ms. Darby’s MHRA claim.

                                          III.

       The judgment of the District Court is affirmed in part and reversed in part, and
this case is remanded to the District Court for further proceedings consistent with this
opinion.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                         -14-
