           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                       2        Mitchell v. Chapman, et al.             No. 01-5571
        ELECTRONIC CITATION: 2003 FED App. 0325P (6th Cir.)
                    File Name: 03a0325p.06                               UNITED STATES DEPARTMENT OF JUSTICE, CIVIL
                                                                         DIVISION, APPELLATE SECTION, Washington, D.C., for
                                                                         Appellees. ON BRIEF: James M. Morris, MORRIS &
UNITED STATES COURT OF APPEALS                                           MORRIS, Lexington, Kentucky, for Appellant. Sharon
                                                                         Swingle, Mark B. Stern, UNITED STATES DEPARTMENT
                  FOR THE SIXTH CIRCUIT                                  OF JUSTICE, CIVIL DIVISION, APPELLATE SECTION,
                    _________________                                    Washington, D.C., for Appellees.

 JOEY L. MITCHELL ,               X                                                            _________________
           Plaintiff-Appellant,    -
                                   -                                                               OPINION
                                   -   No. 01-5571                                             _________________
            v.                     -
                                    >                                        PETER C. ECONOMUS, District Judge.
                                   ,
 GLENN CHAPMAN , et al.,           -                                         I.    OVERVIEW
         Defendants-Appellees. -
                                  N                                        The Appellant, Joey L. Mitchell (“Appellant” or
      Appeal from the United States District Court                       “Mitchell”), appeals the district court’s grant of summary
    for the Eastern District of Kentucky at Lexington.                   judgment to his employer, the United States Postal Service
  No. 00-00179—Karl S. Forester, Chief District Judge.                   (“USPS”), and three USPS employees, in this action alleging
                                                                         various civil rights claims.
                   Argued: February 7, 2003
                                                                           Mitchell advances three arguments on appeal: (1) the
            Decided and Filed: September 11, 2003                        district court misapplied the doctrine of claim preclusion as a
                                                                         means to bar the claims alleged against the defendants in the
        Before: GILMAN and GIBBONS, Circuit Judges;                      defendants’ official capacities; (2) the district court should
                 ECONOMUS, District Judge.*                              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
                           COUNSEL                                       (“FMLA”), 29 U.S.C. §§ 2601-2654 (1994), as to preclude
                                                                         individual liability claims asserted against federal agency
ARGUED: James M. Morris, MORRIS & MORRIS,                                supervisors.
Lexington, Kentucky, for Appellant. Sharon Swingle,
                                                                           For the reasons that follow, we AFFIRM the decision of
                                                                         the district court.
    *
     The Honorable Peter C. Economus, United States District Judge for
the Northern District of Ohio, sitting by designation.

                                  1
No. 01-5571                  Mitchell v. Chapman, et al.       3    4       Mitchell v. Chapman, et al.                      No. 01-5571

  II. BACKGROUND                                                    173.) Mitchell further informed Chapman that he would have
                                                                    to file for permanent disability if compelled to continue
  A. FACTUAL HISTORY                                                working as a letter carrier. (J.A., 40, 45, 116-17.) Ultimately,
                                                                    Mitchell designated the eight hours as unscheduled sick leave.
  On July 8, 1995, Mitchell began his employ as a letter            (J.A., 24, 168.)
carrier at the United States Post Office located in Paris,
Kentucky (the “Paris Facility”). (J.A., 23, 166.) Prior to and         Chapman immediately alerted Derrickson to Mitchell’s
throughout his employment, Mitchell suffered from chronic           comments regarding the neck injury. (J.A., 77, 116-17.) In
neck pain arising from an injury that he sustained while            response to this information, Derrickson instructed Mitchell
serving in the United States Navy. (J.A., 23, 54, 57-58,166.)       to receive a medical fitness-for-duty examination (“FFD
                                                                    Exam”).1 (J.A., 17, 24, 78-79, 117, 169.) Derrickson
   On November 11, 1996, Mitchell’s treating physician, Dr.         additionally transferred Mitchell from letter carrier to
Ballard Wright (“Dr. Wright”), certified that Mitchell’s neck       temporary clerk duties pending the results of the FFD Exam.
pain was a chronic serious illness pursuant to the FMLA.            (J.A., 24, 78, 117, 167-68.)
(J.A., 24, 54, 59, 166.) Dr. Wright’s certification indicated
that the neck injury required Mitchell’s occasional absence           On May 15, 1997, Mitchell provided to Derrickson a letter
from work. (J.A., 24, 54, 59,166.)                                  from Dr. Wright indicating that he was “medically cleared to
                                                                    perform his duties as a letter carrier for the U.S. Postal
  On February 12, 1997, Mitchell submitted a formal request         Service with no restrictions.” (J.A., 12, 17, 24, 54, 60, 78-79,
to the Paris Facility Postmaster, Richard A. Derrickson             93, 168.) Dr. Wright’s letter further indicated that, “if a less
(“Derrickson”), requesting a transfer from his letter carrier       physically strenuous position becomes available . . .
position to the position of clerk. (J.A., 16-17, 24, 77, 85.)       [Mitchell should] be considered for such a position so as to
Derrickson took no immediate action on the transfer request.        not exacerbate his head and neck pain.” ( J.A., 54, 60, 93.)
                                                                    Derrickson refused to return Mitchell to the letter carrier
   Several months later, on May 12, 1997, Mitchell failed to        position pending the results of the FFD Exam. (J.A., 24, 79,
appear during his regularly scheduled shift. (J.A., 17, 24,         168.)
116.) When Mitchell returned to work the following day, his
acting supervisor, Glenn Chapman (“Chapman”), verbally                On May 20, Mitchell’s collective bargaining representative,
reprimanded Mitchell for the non-excused absence. (J.A., 17,        the National Association of Letter Carriers, AFL-CIO (the
24, 116, 167.) Chapman indicated to Mitchell that poor              “Union”), filed a grievance (the “Grievance”) on Mitchell’s
attendance was a significant factor that could detrimentally        behalf. The Grievance alleged violations of the FMLA and
impact Mitchell’s transfer request. (J.A., 45, 116, 167.)           parallel provisions of the collective bargaining agreement (the
                                                                    “CBA”) entered into between the Union and the USPS. (J.A.,
  In response, Mitchell explained that his absence was the          17, 160, 169.)
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                    1
                                                                         Postal regulations permitted management to order FFD Exams by
referred to Dr. Wright’s prior certification. (J.A., 24, 45, 167,   a physician selected by the USPS “at any time and repeat as necessary, to
                                                                    safeguard the emp loyee.” (J.A., 78, 89 -92.)
No. 01-5571                  Mitchell v. Chapman, et al.       5    6      Mitchell v. Chapman, et al.                  No. 01-5571

  On May 23, 1997, Dr. Robert Davenport (“Dr.                           Dr. Gilbert responded to Nickles’s request as follows:
Davenport”), a physician under contract with the USPS,
conducted a FFD Exam of Mitchell. (J.A., 13, 17, 24-25, 40,             [B]ased on my exam and discussion with the patient and
45, 54, 61-66, 79, 169.) Dr. Davenport rendered three                   the fact that the patient tells me that he feels he can do
determinations regarding Mitchell’s condition: (1) Mitchell             his job without restrictions, I feel this [sic] is not
maintained the ability to perform letter carrier duties so long         unreasonable for him to perform his job without
as he refrained from carrying mail with a satchel; (2) Mitchell         restrictions. If the [USPS] would like a more detailed
could continue to perform clerk duties and maintain a low risk          assessment of restrictions, . . . we would need to proceed
for injury; and (3) Mitchell should be referred to a                    with a functional capacity evaluation done by a licensed
neurosurgeon, Dr. John Gilbert (“Dr. Gilbert”), for further             physical therapist.
evaluation. (J.A., 25, 54, 66.)
                                                                        I note in your records that [Mitchell] has said that the
  That same day, the USPS denied the Grievance. (J.A.,                  stresses from carrying a satchel cause him problems on
160.) Pursuant to the CBA, the Union initiated Step 2 of the            his neck. If this is indeed true, then I would recommend
grievance procedure requesting that the USPS award Mitchell             that he not carry the satchel. However, the patient did
backpay, sick / annual leave, and reinstatement to letter               not tell me this. He told me he felt he could do his job
carrier duties. (J.A., 13, 161.)                                        without restrictions. If you want to be on the safe side
                                                                        and if it is true that the patient feels that the satchel’s
  By letter dated June 9, 1997, the USPS denied the requested           giving him problems, then we need to get rid of the
relief stating, “In the interest of the Grievant’s health and           satchel.
safety, Management has taken [Mitchell] out of the situation
causing him physical problems, pending further evaluation.          (J.A., 25, 55, 72.)
Therefore in the absence of any contractual violation, the
grievance is denied.” (J.A., 161.) The Union thereafter               Nickles ultimately reported to Derrickson that Mitchell
initiated Step 3 of the grievance procedure. (J.A., 13, 162-        “[c]ould continu[e] carrying mail if [Mitchell] doesn’t use [a]
64.)                                                                satchel.” (J.A., 55, 74, 79.) Derrickson did not, however,
                                                                    return Mitchell to full letter carrier duties. (J.A., 79.)
  A third physician, Dr. Gilbert, examined Mitchell on
June 30, 1997 and issued a report returning Mitchell to work           On August 11, 1997, Mitchell submitted a second request
duty without restrictions. (J.A., 13, 17, 25, 69, 169.)             for transfer to a full-time clerk position. (J.A., 13, 18, 25, 80,
Subsequently, Naewana Nickles (“Nickles”), a USPS                   95.) Derrickson approved the request on August 19, 1997.
Occupational Health Nurse Administrator responsible for             (J.A., 13, 25, 80, 95.)
reviewing medical evaluations of USPS employees, received
Dr. Gilbert’s report. (J.A., 13, 25, 55.) Nickles found the            On August 25, 1997, Dr. Gilbert issued a supplemental
report deficient in several respects and requested that Dr.         report to the USPS indicating that Mitchell “can’t work with
Gilbert specifically address whether Mitchell could perform         a neck harness because it puts him at a high risk” for injury.
“all of the essential functions of a City Carrier without risk of   (J.A., 55, 75.) Dr. Gilbert further indicated that he examined
hazard to self or others.” (J.A., 13, 18, 25, 55, 70-71, 169-       a model USPS waist harness for carrying mail that “transfers
71.)                                                                the weight from the bag from the shoulder to the waist” and
No. 01-5571                       Mitchell v. Chapman, et al.              7   8        Mitchell v. Chapman, et al.                           No. 01-5571

that Mitchell was at a “low risk” of injury while using the                    On June 6, 1998, Mitchell filed a formal EEO complaint of
waist harness. (J.A., 13-14, 55, 75.) Consequently, Dr.                        discrimination (“EEO Complaint) with the USPS alleging
Gilbert “recommended releasing Mr. Mitchell to full duty                       disability discrimination “based on accommodation.”3 (J.A.,
restricted to using the harness provided to [him] by the                       12, 14, 26, 41, 47.)
[USPS] which transfers the weight of the bag to the waist
rather than the shoulder.” (J.A., 13-14, 55, 75.)                                The USPS dismissed as untimely Mitchell’s EEO
                                                                               Complaint, determining that Mitchell initiated contact with an
   Mitchell alleges that he attempted to withdraw his transfer                 EEO counselor beyond the forty-five day period provided in
request based on Dr. Gilbert’s recommendation -- however,                      29 C.F.R. 1614.105. (J.A., 12, 26, 45, 48-51.) Specifically,
Derrickson refused the withdrawal.           (J.A., 174-75.)                   the USPS determined that Mitchell had not consulted with the
Derrickson denies that Mitchell submitted such a request.                      EEO counselor until sixty-six days after the alleged
(J.A., 80.) Mitchell’s transfer to the clerk position became                   discriminatory refusal to reinstate him as a mail carrier, and
effective August 30, 1997. (J.A., 14, 25, 80, 96.)                             sixty days after the effective date of his transfer to a clerk
                                                                               position. (J.A., 45, 48-51.) Mitchell did not administratively
  B. PROCEDURAL HISTORY                                                        appeal the USPS’s decision.
  The EEO Proceedings
  Mitchell contacted an Equal Employment Opportunity
(“EEO”) counselor on October 30, 1997 alleging that                                       within 45 days of the effective date of the action.
Derrickson’s refusal to return him to his letter carrier position
constituted disability discrimination in violation of the FMLA                            (2) The agency or the Commission shall extend the 45-day
and the Disabled Veterans Act.2 (J.A., 11, 14, 25, 40, 42-46.)                            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 reaso nably should not have been known
    2                                                                                     that the discriminatory matter or personnel action occurred,
      Title twenty-nine of the Code of Federal Regulations, chapter
fourteen, part 1614, establishes an extensive dispute resolution process to               that despite due diligence he or she was prevented by
address a federal employee’s charge of disc rimination. T his dispute                     circumstances beyond his or her control from contacting the
resolution system requires “a compla ining pa rty to pursue administrative                counselor within the time limits, or for other reasons
relief prior to co urt action, thereby enco uraging mo re exped ient, less                considered sufficient by the agency or the Comm ission.
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        29 C.F.R. § 16 14.105 (20 03).
(1999). In particular, 29 C.F.R. § 161 4.10 5 provides, in relevant part:          3
                                                                                       Tw enty-nine C.F.R . §16 14.1 06 p rovid es, in pertinent part:
    (a) Aggrieved persons who believe they have been discriminated
    against on the basis of race, color, religion, sex, national origin,                (a) A comp laint must be filed with the agency that alleged ly
    age or handicap must consult a Counselor prior to filing a                     discrim inated against the com plainant.
    complaint in order to try to informally resolve the matter.
                                                                                       (b) A com plaint must be filed within 15 days of receipt of
         (1) An aggrieved person must initiate contact with a                      the notice required by § 1614.105 (d), (e) or (f) [provisions
         Counselor within 45 days of the date of the matter alleged                regarding the completion of informal meetings with an EEO
         to be discrimina tory or, in the case of personnel action,                counselor].
No. 01-5571                 Mitchell v. Chapman, et al.      9    10       Mitchell v. Chapman, et al.                        No. 01-5571

  Mitchell I                                                      42 U.S.C. §§ 2000a-2000h (1994); the FMLA; 42 U.S.C.
                                                                  § 1983; the Fourteenth Amendment to the United States
   On November 17, 1998, Mitchell filed a complaint in the        Constitution; and the Kentucky Civil Rights Act (“KCRA”),
United States District Court for the Eastern District of          KY . REV . STAT . ANN . §§ 344.010-.990. See Mitchell v.
Kentucky against the USPS and the Postmaster General,             Chapman (Mitchell II), No. 00-179 (E.D. Ky. filed May 15,
William Henderson (“Henderson”), alleging violations of the       2000), at (J.A., 6-22).
Rehabilitation Act of 1973, 29 U.S.C. §§ 700-796 (1994), and
the Americans With Disabilities Act of 1990 (“ADA”), 42             The defendants thereafter moved for the dismissal of the
U.S.C. §§ 12101-12213 (1994). See Mitchell v. Henderson           complaint pursuant to FED . R. CIV . P. 12 (b)(1), (2), (3), and
(“Mitchell I”), No. 98-469 (E.D. Ky. filed Nov. 1, 1998), at      (6), or in the alternative, for summary judgment pursuant to
(J.A., 97 - 104). Mitchell’s complaint sought relief predicated   FED . R. CIV . P. 56 (b).4 In response, Mitchell conceded that
on two events: (1) the defendants’ purported refusal of his       dismissal was proper as to all claims asserted against
request to return to letter carrier duties with the               Henderson and all ADA claims. (J.A., 138-39, 143, 149.)
accommodation of a waist harness; and (2) his transfer to a       The district court accordingly granted judgment in favor of
lesser-paying clerk’s position after requesting FMLA leave.       the defendants on the conceded claims. (J.A., 28.)
Mitchell I, at (J.A., 97 - 104).
                                                                    The district court further determined that the doctrine of
   The district court granted summary judgment in favor of        claim preclusion rendered its decision in Mitchell I as a bar to
the defendants, resting its determination on Mitchell’s failure   Mitchell’s subsequent claims against the USPS, and all claims
to contact an EEO Counselor within forty-five days of the         asserted against Chapman, Derrickson, and Nickles in their
allegedly discriminatory conduct. (J.A., 106-12.)                 official capacities. (J.A., 29-34.) The district court declined,
                                                                  however, to invoke claim preclusion as to Mitchell’s
  Resolution of the Grievance                                     individual capacity claims. (J.A., 30-32.)
  Several weeks later, on May 25, 1999, the Union and the           The district court then considered the individual liability of
USPS settled Mitchell’s Step 3 Grievance. (J.A., 165.) The        Chapman, Derrickson, and Nickles. The district court
terms of the settlement awarded Mitchell backpay during the       concluded that neither Title VII, the Rehabilitation Act, nor
period that he served as a temporary clerk, as well as
additional sick / vacation leave. (J.A., 165.)
                                                                       4
                                                                        Rule 12 of the Federal Rules of C ivil Pro cedure provid es, in
  Mitchell II                                                     pertine nt part:

  Nearly a year later, Mitchell filed a complaint in the United        If, on a motion asserting the defense numbered (6) to dismiss for
States District Court for the Eastern District of Kentucky             failure of the pleading to state a claim upon which relief may be
against the USPS, Henderson, Chapman, Derrickson, and                  granted, matters outside of the pleading are presented to and not
Nickles, where he re-asserted violations of the Rehabilitation         excluded by the court, the mo tion shall be treated as o ne for
                                                                       summary judgment and disposed of as provide in Rule 56.
Act and the ADA, as well as alleged additional claims
pursuant to Title VII of the Civil Rights Act of 1964, as         F ED . R. C IV . P. 12 (b)(6). As the district court considered a series of
amended by the Civil Rights Act of 1991 (“Title VII”),            affidavits and exhibits attached to the mo tion, it con verted the mo tion to
                                                                  one seeking summ ary jud gment.
No. 01-5571                  Mitchell v. Chapman, et al.       11    12       Mitchell v. Chapman, et al.                       No. 01-5571

Kentucky law imposed individual liability for discriminatory           IV.       LAW AND ANALYSIS
conduct. (J.A., 35-36.) Consequently, the district court
entered judgment in favor of the defendants on said claims.            A. Claim Preclusion

  The district court also awarded judgment to the defendants           Mitchell challenges the district court’s determination that
on Mitchell’s individual capacity FMLA claims. In so doing,          the principles of claim preclusion, or res judicata,5 rendered
the district court rejected Mitchell’s contention that the statute   the judgment in Mitchell I as a bar to Mitchell II. This Court
imposed individual liability on public employers. (J.A., 36-         reviews the dismissal of a case on claim preclusion grounds
37.)                                                                 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.,
  The district court further awarded judgment to the                 15 F.3d 573, 582 (6th Cir. 1994)).
defendants on Mitchell’s Section 1983 claims, reasoning:
(1) federal employees do not act “under color of state law” as           Claim preclusion is the doctrine by which a final judgment
required by the statute; and (2) Mitchell failed to comply with      on the merits in an action precludes a party from bringing a
the one-year statute of limitations for asserting Section 1983       subsequent lawsuit on the same claim or raising a new
claims. (J.A., 34-35.) Moreover, the district court held that        defense to defeat a prior judgment. See Montana v. United
the Fourteenth Amendment was inapplicable to claims arising          States, 440 U.S. 147, 153 (1979). It precludes not only
from actions of federal officials and employees. (J.A., 35.)         relitigating a claim previously adjudicated; it also precludes
                                                                     litigating a claim or defense that should have been raised, but
   Accordingly, the district court granted the defendants’           was not, in the prior suit. See Stern v. Mascio, 200 F.3d 600,
motion for summary judgment. The instant appeal ensued.              608 (6th Cir.2001) (citing Gargallo v. Merrill Lynch, Pierce,
(J.A., 39.)                                                          Fenner & Smith, Inc., 918 F.2d 658, 660-61 (6th Cir.1990)).
                                                                     Claim preclusion only arises, however, in the presence of the
  III. STANDARD OF REVIEW                                            following four elements: (1) where the prior decision was a
                                                                     final decision on the merits; (2) where the present action is
  This Court reviews a grant of summary judgment de novo.            between the same parties or their privies as those to the prior
See Brooks v.American Broadcasting Cos., 932 F.2d 495, 500           action; (3) where the claim in a present action should have
(6th Cir. 1991). Summary judgment is proper “if the                  been litigated in the prior action; and (4) where an identity
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.”           5
                                                                            In Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75
FED . R. CIV . P. 56 (c). When confronted with a properly            (1984), the United States Supreme Court expressed its preference for the
supported motion for summary judgment, the nonmoving                 use of the term “claim preclusion,” rather than the m ore traditiona lly
party must set forth specific facts showing that there is a          utilized term “res judicata.” Migra, 465 U .S. at 77 n.1. Re s judicata
                                                                     generally includes two separate concepts - claim preclusion and issue
genuine issue for trial. A genuine issue for trial exists “if the    preclusion. Claim preclusion, o r true res judicata, refers to effect o f a
evidence is such that a reasonable jury could return a verdict       prior judgme nt in foreclosing a subsequent claim that has never been
for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,           litigated, because of a determination that it should have b een advanced in
477 U.S. 242, 248 (1986).                                            an earlier action. Id. Issue preclusion, on the other hand, refers to the
                                                                     foreclosure of an issue previously litigated. Id.
No. 01-5571                        Mitchell v. Chapman, et al.             13     14        Mitchell v. Chapman, et al.                      No. 01-5571

exists between the prior and present actions. See Kane, 71                        limitations;8(2) a dismissal on statute of limitations grounds
F.3d at 560.                                                                      was an adjudication on the merits for claim preclusion
                                                                                  purposes;9 and (3) a dismissal of plaintiff’s claims for failure
  Here, the central dispute involves the first three elements of                  to contact an EEO counselor therefore was a final decision on
claim preclusion - whether there was a final decision on the                      the merits for claim preclusion purposes. (J.A., 29-30.)
merits, whether the two actions were filed against the same
parties or their privies, and whether the claims in Mitchell II                      The district court’s analysis rests on sound legal authority.
should have been brought in Mitchell I.6 The Court shall                          It is well-established that a party’s exhaustion of
address each element in turn.                                                     administrative processes for filing a claim of discrimination
                                                                                  is a condition precedent to filing suit in the district court,
     1.    Decision on the Merits                                                 rather than a jurisdictional prerequisite. See Zipes v. Trans
                                                                                  World Airlines, Inc., 455 U.S. 385, 394 (1982) (holding that
   The district court determined that its judgment in Mitchell I                  the administrative provisions requiring an employee to pursue
resting on Mitchell’s failure to fulfill a condition precedent to                 a charge of discrimination with the EEOC are conditions
suit -- specifically, Mitchell’s failure to pursue informal                       precedent to suit subject to waiver, tolling and estoppel); see
resolution with an EEO counselor within forty-five days of an                     also Irwin v. Dep’t of Veteran Affairs, 498 U.S. 89, 95 (1990)
alleged discriminatory act -- constituted a decision on the                       (extending Zipes to administrative requirements for federal
merits for claim preclusion purposes. In reaching this                            employees bringing suits against federal agencies). This
conclusion, the district court acknowledged the lack of                           Court has held that a federal employee’s administrative
precedent from this Court regarding whether a dismissal for                       obligation to consult with an EEO counselor within a
failing to fulfill a condition precedent is a decision on the                     particular time period is a precondition to filing suit subject
merits.7 (J.A., 29.) In the absence of controlling authority,                     to equitable tolling, waiver and estoppel. See Boddy, 821
the district court reasoned: (1) the deadline for consulting                      F.3d at 350 (citing Zipes, 455 U.S. 385). The distinction
with an EEO counselor was similar to a statute of                                 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.
    6
      Mitchell concedes the fourth eleme nt - whethe r there is an identity       1986) (“Normally, Rule 12(b)(6) judgments are dismissals on
between the claims asserted in Mitchell I and Mitchell II. Identity of            the merits and Rule 12(b)(1) dismissals are not.”) (Citation
causes of action mea ns an “identity of the facts creating the right of action    omitted).
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 com plaints in Mitchell I and Mitchell II allege identical facts, differing
only in the introductory paragraph s.

    7
     See Rivers v. Barberton Bd. of Educ., 143 F.3d 1029, 1032 (6th Cir.               8
1998) (“Rivers urges that a dismissal for failure to satisfy a condition                   Citing Boddy v. Dean, 821 F.2d 34 6, 350 (6th Cir. 1987).
precedent should not be considered an adjudication on the merits for                   9
claim preclusion purposes . . . [W]e need not decide this question                     Citing Cemer v. Marathon Oil Co., 583 F.2d 83 0, 832 (6th Cir.
today.”).                                                                         1978).
No. 01-5571                   Mitchell v. Chapman, et al.       15    16     Mitchell v. Chapman, et al.                           No. 01-5571

   It further is well-established that conditions precedent are       condition, and re-file the civil action.10 Therefore, not all
similar to statutes of limitations. See Truitt v. County of           decisions finding that a plaintiff failed to fulfill a condition
Wayne, 148 F.3d 644, 646-47 (6th Cir. 1998) (“[W]e hold that          precedent are readily comparable to a finding that a party
[an administrative condition precedent requiring a plaintiff to       failed to comply with the statute of limitations.
file suit within ninety days of receiving a right to sue letter
from the EEOC] is not a jurisdictional requirement but,                  It is the potential overreaching of the district court’s
instead, is a timing requirement similar to a statute of              reasoning that warrants an express limitation. This Court
limitations, subject to waiver, estoppel and equitable                repeatedly has cautioned that a decision on the merits is one
tolling.”). Moreover, a dismissal for failing to comply with          that signifies the “death knell” of the litigation. See Wilkins
a statute of limitations is a decision on the merits for claim        v. Jakeway, 183 F.3d 528, 534 (6th Cir. 1999) (“[T]his is a
preclusion purposes. See Nathan v. Rowan, 651 F.2d 1223,              death knell for Plaintiff’s [False Claims Act] claims against
1226 (6th Cir. 1981). Therefore, the district court did not           the Defendants, in their individual capacities, and is
make an impermissible leap in analogizing a dismissal for             essentially a decision on the merits.”); Rogers, 798 F.2d at
failing to fulfill a condition precedent to a dismissal arising       916 (“Where a statutory right is being pursued, however, and
from a failure to comply with the statute of limitations.             the defense raised is that the plaintiff or defendant does not
                                                                      come within the purview of the statute, the judicial
  The limitations of the district court’s approach                    acceptance of this defense, . . . is the death knell of the
                                                                      litigation and has the same effect as a dismissal on the
  While the district court reached the correct conclusion --          merits.”). The underlying principle of this “death knell”
that is, a dismissal predicated on a federal employee’s failure       language is that a dismissal on the merits is one that
to consult with an EEO counselor within forty-five days is a          permanently forecloses a party from further advancing a claim
decision on the merits for claim preclusion purposes -- the           or defense.
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             10
                                                                              For example, 29 C.F.R. § 161 4.40 7 (a) requires an aggrieved party
comply with a statute of limitations. In either context,              to file suit within ninety days of receiving notice of the EEOC ’s final
whether the plaintiff fails to consult with the EEO counselor         action or dismissal of a com plaint. W hen the adm inistrative p rocess is
within forty-five days of the discriminatory event, or whether        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
the plaintiff fails to file suit within the statutorily prescribed    29 C.F.R. § 1614.109. Where the plaintiff files suit prior to receiving the
period, the party is permanently foreclosed from meeting the          right to sue letter, the district court is compelled to d ismiss the premature
condition or statutory requirement. Simply, the party is              action for failure to exhaust administrative remedies. See Graham-
unable to rewind the clock, fulfill the condition / file the          Hum phreys v. Mem phis Bro oks M useum of Art, Inc., 209 F.3d 552, 560
action within the requisite time period, and proceed to an            (6th Cir. 2000). It is well-settled that the ninety day right to sue provision
                                                                      is an administrative condition precedent, rather than a jurisdictional
adjudication of his or her claim. However, there are certain          prerequisite. See Truitt, 148 F.3d at 646-47. Consequently, the court
condition precedents where, although the party may not have           should dismiss the action pursuant to Rule 12 (b)(6), for failure to state a
fulfilled the condition prior to filing suit in the district court,   claim, rather than Rule 12 (b)(1), for lack of subject matter jurisdiction.
he or she may return to the administrative process, fulfill the       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.
No. 01-5571                  Mitchell v. Chapman, et al.       17    18    Mitchell v. Chapman, et al.                 No. 01-5571

   Here, the district court’s determination that Mitchell failed     precedent. As discussed supra, there is a significant
to meet with an EEO counselor within the requisite time              distinction between a dismissal for a failure to fulfill a
period permanently foreclosed Mitchell’s Rehabilitation Act          jurisdictional prerequisite and a dismissal for a failure to
claim. Mitchell could not, and will forever remain unable, to        fulfill a condition precedent. As such, Wilkins is inapposite
meet with an EEO counselor within forty-five days of the             to the matter sub judice.
discriminatory act as required by 29 C.F.R. § 1614.105.
However, not all dismissals for failing to meet a condition            The instant appeal falls squarely within this Court’s
precedent will have this permanently barring effect.                 precedent establishing that a decision on the merits is one that
Therefore, a dismissal for failing to file a condition precedent     permanently forecloses a party from advancing a claim or
is a decision on the merits only if the aggrieved party is           defense.     As Mitchell I permanently foreclosed Mitchell
permanently foreclosed from fulfilling the condition. As             from asserting claims pursuant to the Rehabilitation Act as a
Mitchell was permanently foreclosed from fulfilling the              result of Mitchell’s failure to meet with an EEOC counselor
requirements of 29 C.F.R. § 1614.105, the district court             during the requisite period, the dismissal was a decision on
correctly determined that its decision in Mitchell I was a           the merits for claim preclusion purposes.
decision on the merits.
                                                                          2.   Same Parties or Privies
  Mitchell nevertheless asserts that as the judgment in
Mitchell I was not one on the merits because the district court         The second element of claim preclusion operates to bar
relied on a “technicality” (Final Br. of Appellant, at 14) and,      successive claims among the same parties or their privies.
or, a “procedural defect” (Final Br. of Appellant, at 15). In        The district court expressly determined that its decision in
support of his contention, Mitchell relies on Wilkins,183 F.3d       Mitchell I barred all claims against the USPS because the
528, where a prior panel of this Court stated: “[A]lthough the       USPS was a named party to the prior action. (J.A., 30-31.)
district court’s dismissal was framed in terms of a Rule 12          Similarly, the district court determined that its judgment in
(b)(6) dismissal on the merits, in actuality, the court’s            Mitchell I barred all claims alleged against Chapman,
determination that the individual defendants were not                Derrickson, and Nickles in their official capacities because a
‘employers’ under the [False Claims Act] was jurisdictional          suit against a public employee in his or her official capacity
because it did not go to the merits of Plaintiff’s suit.” Wilkins,   is a suit against the agency itself. (J.A., 30-31); see also
183 F.3d at 534.                                                     Kentucky v. Graham, 473 U.S. 159 (1985); Monell v. Dep’t.
                                                                     of Social Servs., 436 U.S. 658, 690 n. 55 (1978). Neither
   Mitchell erroneously interprets the foregoing statements as       party disputes the district court’s determinations in these
requiring a judgment to reach the merits of a particular claim       respects.
in order to have a preclusive effect. The patent deficiency in
Mitchell’s assertion, as demonstrated supra, is that dismissals       The Appellees’ attempt to extend claim preclusion to
for failing to comply with “technicalities” such as a statute of     Mitchell’s individual capacity claims
limitations constitute decisions on the merits. Moreover,
Mitchell misplaces his reliance on Wilkins as there the Court          The Appellees nevertheless urge this Court to extend the
addressed the preclusive effect of a judgment in the context of      preclusive effect of Mitchell I to the individual capacity
a party’s failure to establish a jurisdictional prerequisite. In     claims asserted against Chapman, Derrickson, and Nickles.
contrast, Mitchell I addressed a failure to fulfill a condition      (Final Br. of Appellees, at 23-31.) In support of their
No. 01-5571                   Mitchell v. Chapman, et al.       19    20    Mitchell v. Chapman, et al.                       No. 01-5571

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

F.3d 776 (5th Cir. 1997) (holding that a prior suit against a       Indeed, Mitchell expressly alleged disability discrimination12
municipality does not bar a later suit against local officials in   and violations of the FMLA in both his Grievance and his
their individual capacity); Conner v. Reinhard, 847 F.2d 384,       EEO charge filed prior to Mitchell I. (J.A., 42, 160.)
395 (7th Cir.) (holding that a prior suit against a municipality
does not bar a subsequent suit against officials individually          In an effort to explain his failure to assert all of his potential
because official capacity and personal capacity suits involve       claims, Mitchell alleges he refrained from filing a FMLA
different legal theories and defenses), cert. denied, 488 U.S.      action in Mitchell I because that claim was the subject of the
856, 109 S. Ct. 147, 102 L. Ed. 2d 118 (1988); Headley v.           Grievance.13 As the district court noted, Mitchell fails to cite
Bacon, 828 F.2d 1272, 1277-79 (8th Cir. 1987)                       any provision of the CBA requiring him to submit FMLA
(distinguishing privity between principal and agent from            claims to binding arbitration prior to initiating a civil action.
privity between a governmental entity and officials sued in         (J.A., 33.) Assuming arguendo, that the CBA mandates
their individual capacities). See also Howell Hydrocarbons,         binding arbitration, it is well-established that the CBA must
Inc. v. Adams, 897 F.2d 183, 188 (5th Cir.1990) (“Res               contain a “clear and unmistakable waiver” of Mitchell’s
judicata does not apply when the parties appear in one action       FMLA rights to foreclose his entitlement to a judicial forum.
in a representative capacity and in a subsequent action in an       See Bratten v. SSI Servs., Inc., 185 F.3d 625, 631-632 (6th
individual capacity.”).                                             Cir. 1999) (citing Wright v. Universal Maritime Serv. Corp.,
                                                                    525 U.S. 70, 82 (1998)); Plumley v. Southern Container, Inc.,
  The rule of differing capacities therefore enables Mitchell       303 F.3d 364 (1st Cir. 2002) (applying the “clear and
to assert individual capacity claims against Chapman,               unmistakable” waiver standard to FMLA claims); Rogers v.
Derrickson, and Nickles.                                            New York University, 220 F.3d 73 (2d Cir. 2000) (same).
                                                                    Mitchell fails to demonstrate any provision of the CBA
    3. Was Or Should Have Been Litigated In The Prior               containing a clear and unmistakable waiver of his statutory
Action                                                              claims. Consequently, Mitchell fails to provide a sufficient
                                                                    justification for failing to file his statutory claims.14
   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          12
                                                                           Mitchell brought his Title VII claim on the basis of disability
U.S. 394, 398 (1981). The district court determined that            discrimination. Und er T itle VII, it is unlawful for an em ployer to
Mitchell could have brought his Title VII, FMLA, 42 U.S.C.          discharge or otherwise discriminate against an individual with resp ect “to
§ 1983, Fourteenth Amendment, and KCRA claims in                    compensation, terms, conditions or privileges of employment on the basis
                                                                    of the individual’s race, color, religion, sex or national origin.” See 42
Mitchell I. The record supports the district court’s finding.       U.S.C. § 2000e-2(a). Title VII does not address disability discrimination.

  It is undisputed that Mitchell was aware of all of the facts           13
                                                                           Mitchell provides no explanation as to his failure to assert the other
giving rise to his claims at the time he filed Mitchell I.          claims alleged in Mitchell II.

                                                                         14
                                                                           It 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
No. 01-5571                         Mitchell v. Chapman, et al.             23     24    Mitchell v. Chapman, et al.                   No. 01-5571

      4.    Conclusions regarding claim preclusion                                  B. Mitchell’s 42 U.S.C. § 1983 and Fourteenth
                                                                                   Amendment Claims
  The doctrine of claim preclusion thereby renders the district
court’s judgment in Mitchell I as a bar to the claims asserted                       Mitchell asserts that the district court should have
against the USPS, as well as the claims alleged against                            considered his 42 U.S.C. § 1983 and Fourteenth Amendment
Chapman, Derrickson, and Nickles in their official capacities.                     claims in light of Bivens, 403 U.S. 388.
Claim preclusion does not, however, extend to the individual
capacity claims asserted against Chapman, Derrickson, and                             Mitchell’s argument requires little analysis. In Bivens, the
Nickles because of the rule of differing capacities. As the                        Supreme Court recognized a right to recover damages against
district court correctly noted, Mitchell was not barred from                       federal officials who violate an individual’s constitutional
arguing the merits of his individual capacity claims alleged                       rights. See Bivens, 403 U.S. at 395. Mitchell did not allege
pursuant to Title VII, the Rehabilitation Act, the KCRA, the                       a Bivens claim in Mitchell II; rather, he averred claims
FMLA, 42 U.S.C. § 1983, and the Fourteenth Amendment.15                            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
FMLA Grievance was pending in Step 3 of the grievance procedure
                                                                                   1983 claim (or the purported Bivens action) nearly three years
during this period. The appropriate course of action in this scenario was          past the limitations period. (J.A., 34.)
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                 Furthermore, it is well-settled that USPS employees may
proceedings while awaiting the resolution of the grievance. See Church ill         not allege Bivens claims arising out of their employment
v. Star En ters., 183 F.3d 184, 192 (3d Cir. 1999) (“Attorneys sho uld             relationship with the USPS. See Harper v. Frank, 985 F.2d
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
                                                                                   285, 290 (6th Cir. 1993). See also Turner v. Holbrook, 278
the stay and seek leave to amend his complaint in order to allege the              F.3d 754 (8th Cir. 2002); Pipkin v. United States Postal
FMLA action. To do otherwise, creates the very risk presented herein of            Serv., 951 F.2d 272, 275 (10th Cir. 1991). Consequently,
obtaining a partial, yet preclusive , judgm ent.                                   Mitchell’s purported Bivens claim fails as a matter of law.
     15
        Mitchell wisely fails to p resent any argu ment on ap peal with             C. FMLA Individual Liability for Public Agency
respect to his T itle VII, the Re habilitation Act, or K CRA claim s. See          Employers
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)
                                                                                      Mitchell’s final assertion on appeal is that the district court
(holding that the Rehabilitation Act does not impose individual liability).        erroneously interpreted the FMLA as to preclude individual
Consequently, these claims are considered abandoned for the purposes of            liability claims against public agency employers. The issue
app eal. See Enertech v. Mahoning County Comm’rs, 85 F .3d 2 57 (6th               of whether the FMLA provides for individual liability against
Cir. 19 96).
No. 01-5571                 Mitchell v. Chapman, et al.     25    26    Mitchell v. Chapman, et al.                 No. 01-5571

a public employer is a matter of first impression for this          The FMLA expressly incorporates into its provisions the
Court.                                                            Fair Labor Standards Act’s (“FLSA”), 29 U.S.C. §§ 201-219
                                                                  (1994), definition of “employee.” See 29 U.S.C. § 2611(3)
   “Under accepted canons of statutory interpretation, we must    (“The terms ‘employ’, ‘employee’, and ‘State’ have the same
interpret statutes as a whole, giving effect to each word and     meanings given such terms in subsections (c), (e), and (g) of
making every effort not to interpret a provision in a manner      section 203 of this title [the FLSA].”). The FLSA defines
that renders other provisions of the same statute inconsistent,   employee as “any individual employed by an employer” and
meaningless or superfluous.” See Lake Cumberland Trust,           includes “any individual employed by the United States
Inc. v. United States Environmental Protection Agency, 954        Postal Service.” 29 U.S.C. § 203 (e)(1) & (2)(B). An
F.2d 1218, 1222 (6th Cir. 1992) (citation omitted). The plain     “eligible employee” under the FMLA is an “employee” who
meaning of the statute controls, except in rare cases in which    “has been employed for at least 12 months by the employer
the literal application of the statutory language would compel    with respect to whom leave is requested . . . ; and for at least
an odd result or produce a result demonstrably at odds with       1,250 hours of service with such employer during the
legislative intent. See Public Citizen v. United States Dep’t     previous 12-month period.” 29 U.S.C. § 2611(2)(A).
of Justice, 491 U.S. 440 (1989). We must begin with the
statute’s plain language, and may resort to a review of             The FMLA defines “employer” as follows:
congressional intent or legislative history only when the
language of the statute is not clear. See In re Comshare, Inc.,     (4) Employer
183 F.3d 542, 549 (6th Cir. 1999) (citing Consumer Prod.
Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108              (A) In general
(1980)).
                                                                       The term “employer” –
  Turning to the statute, the FMLA entitles “eligible
employees” to take up to twelve weeks of unpaid leave in any          (i) means any person engaged in commerce or in any
twelve-month period for qualifying medical or family                industry or activity affecting commerce who employs 50
reasons. See 29 U.S.C. § 2612(a)(1). The statute ensures            or more employees for each working day during each of
that the employee will be restored to the same or an                20 or more calendar workweeks in the current or
equivalent position upon returning to work. See 29 U.S.C.           proceeding calendar year;
§ 2614(a)(1).
                                                                       (ii) includes --
  The statute creates a private right of action entitling
“eligible employees” to seek both equitable relief and money             (I) any person who acts, directly or indirectly, in the
damages “against any employer (including a public agency)                interest of an employer to any employees of such
in any Federal or State court of competent jurisdiction,” 29             employer; and
U.S.C. § 2617(a)(2), should that employer “interfere with,               (II) any successor in interest of the employer;
restrain, or deny the exercise of” FMLA rights, 29 U.S.C.
§ 2615(a)(1).                                                         (iii) includes any “public agency”, as defined in
                                                                    section 203(x) of this title; and
No. 01-5571                     Mitchell v. Chapman, et al.          27    28     Mitchell v. Chapman, et al.                          No. 01-5571

    (iv) includes the General Accounting Office and the                      definition of “employer” in section 3(d) of the Fair
  Library of Congress.                                                       Labor Standards Act (FLSA), 29 U.S.C. 203(d), similarly
                                                                             includes any person acting directly or indirectly in the
  (B) Public agency.                                                         interest of an employer in relation to an employee. As
                                                                             under the FLSA, individuals such as corporate officers
  For purposes of subparagraph (A) (iii), a public agency                    “acting in the interest of an employer” are individually
  shall be considered to be a person engaged in commerce or                  liable for any violations of the requirements of the
  in an industry or activity affecting commerce.                             FMLA.
  29 U.S.C. § 2611.16                                                      29 C.F.R. § 825.104 (d);17see also Chandler v. Specialty
                                                                           Tires of Am., 283 F.3d 818, 827 (6th Cir. 2002) (recognizing
   The issue of whether the FMLA imposes individual                        that the provisions of the FMLA generally mirror those
liability turns on an interpretation of the term “employer.” Of            provided in the FLSA) (citation omitted). This Court has
particular pertinence, the FMLA defines an “employer,” in                  interpreted the FLSA’s “any person who acts, directly or
part, as “any person who acts, directly or indirectly, in the              indirectly, in the interest of the employer” language to impose
interest of the employer.” 29 U.S.C. § 2611(4)(A)(ii)(I). This             individual liability on private-sector employers. See United
language mirrors the FLSA’s definition of employer.                        States Dep’t of Labor v. Cole Enters., Inc., 63 F.3d 775 (6th
Compare 29 U.S.C. § 2611(4)(A)(ii)(I) with 29 U.S.C.                       Cir. 1995); Fegley v. Higgins, 19 F.3d 1126 (6th Cir. 1994).
§ 203(d) (“Employer includes any person acting directly or                 The presence of identical language in the FMLA tends to
indirectly in the interest of any employer in relation to an               support a similar finding. See Darby v. Bratch, 287 F.3d 673,
employee and includes a public agency, but does not include                681 (8th Cir. 2002) (comparing the FMLA and FLSA
a labor agency . . . .”). This is not a coincidence. The                   definitions of “employer” and determining that each statute
applicable regulations indicate:                                           imposes individual liability); see also Cantley v. Simmons,
                                                                           179 F. Supp. 2d 654, 655-58 (S.D. W. Va. 2002)
  An “employer” [under the FMLA] includes any person                       (“[I]ndividual liability is permitted under the FMLA.”);
  who acts directly or indirectly in the interest of an                    Brunelle v. Cyro Indus., 225 F. Supp. 2d 67, 82 (D. Me. 2002)
  employer to any of the employer’s employees. The                         (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)
    16
       The FMLA again borrows from FLSA for its definition of “public      (finding that the majority of the courts have found “that
agency.” Title 2 9 U .S.C. § 20 3(x), which is referenced in the FM LA’s
definition of “employer,” provides the following definition of “public
agency”:                                                                        17
         (x) “Public Agency” means the Government of the United                   The Secretary of Labor has the authority to issue regulations
         States; the government of a State or political subdivision        pertaining to the FMLA. See 29 U.S.C. § 265 4. Genera lly, we defer to
         thereo f; any agency of the United States (including the          the regulations when determining how to interpret a statute, as long as the
         United States Postal Service and Postal Rate Comm ission),        regulations present a reasonable interpretation of the statute. See Intermet
         a State, or a po litical subdivision of a State; or any           Corp. & Subsidiaries v. Comm issioner, 209 F.3d 901, 904 (6th Cir. 2000).
         interstate governmental agency.                                   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
29 U.S.C. § 20 3 (x).                                                      (1967).
No. 01-5571                   Mitchell v. Chapman, et al.       29    30    Mitchell v. Chapman, et al.                        No. 01-5571

individuals can be subject to liability under the FMLA”);             N.Y. 1996) (holding that “employer” in the FMLA mirrors
Morrow v. Putnam, 142 F. Supp. 2d 1271, 1275-76 (D. Nev.              that used in the FLSA which imposes individual liability);
2001) (holding that individual liability exists under the             Freemon v. Foley, 911 F. Supp. 326 (N.D. Ill. 1991) (same).18
FMLA); Longstreth v. Copple, 101 F. Supp. 2d 776, 780
(N.D. Iowa) (same); Carter v. Refrigeration Sales Corp., 49              However, the narrow issue before this Court is whether the
F. Supp. 2d 1028, 1030 (N.D. Ohio 1999) (recognizing that             FMLA imposes individual liability on public agency
the majority of courts extend individual liability in FMLA            employers. The FMLA’s definition of “employer” segregates
claims); Meara v. Bennett, 27 F. Supp. 2d 288, 290 (D. Mass.          the specific provision regarding individual liability (i.e., the
1998) (“Although the court has not been able to locate any            “directly or indirectly” clause), see 29 U.S.C.
Court of Appeals decisions addressing the issue of individual         § 2611(4)(A)(ii)(I) (hereinafter the “individual liability
liability under the recently enacted FMLA, the decisional law         provision”), from the specific provision addressing “public
developing at the district court level appears to favor               agency” employers, see 29 U.S.C. § 2611(4)(A)(iii)
individual liability.”); Bryant v. Delbar Prods., Inc., 18 F.         (hereinafter the “public agency provision”). The Court of
Supp. 2d 799, 807-09 (M.D. Tenn. 1998) (noting that “the              Appeals for the Eighth Circuit has determined that this
majority of courts have determined that the FMLA extends              separation is of little interpretative import, noting that it did
individual liability to those who control a plaintiff’s ability to    not see “‘why public officials should be exempted from
take a leave of absence”); Mercer v. Borden, 11 F. Supp. 2d           liability while managers in the private sector are not.’”
1190, 1190 (C.D. Cal. 1998) (“Since the definition of                 Darby, 287 F.3d at 681 (quoting Morrow, 142 F. Supp. 2d at
‘employer’ in the FMLA is identical to the definition of              1275). In contrast, the Court of Appeals for the Eleventh
‘employer’ in the [Fair Labor Standards Act], the Court holds         Circuit has determined that the FMLA does not impose
that individuals are potentially subject to liability under the       individual liability on employees of public agencies. See
FMLA. The plain language of the FMLA compels this                     Wascura v. Carver, 169 F.3d at 683, 686 (11th Cir. 1999).
result.”); Rupnow v. TRC, Inc., 999 F. Supp. 1047, 1048
(N.D. Ohio 1998) (“[T]he weight of authority favors                     Notwithstanding the guidance from these decisions, we
individual liability for a supervisor where the ‘supervisor           respectfully note that neither Darby nor Wascura attempt a
exercise[s] sufficient control over the plaintiff’s ability to take   textual analysis of the FMLA. The court in Darby limited its
protected leave.’”); Stubl v. T.A. Systems, Inc., 984 F. Supp.        reasoning to the general proposition that public and private
1075, 1083 (E.D. Mich. 1997) (“Although reasonable                    employers should not be treated separately under the statute.
arguments could be made that the policy rationale underlying          See Darby, 287 F.3d at 681. The Wascura court concluded
the Title VII decisions finding no individual liability should        that it was constrained by a prior decision of that court that
dictate the same result under the FMLA, the plain language of         did not extend individual liability under the FLSA to public
the statute and the regulations mandate otherwise.”); Waters          agency employers. See Wascura, 169 F.3d at 686 (citing
v. Baldwin County, 936 F. Supp. 860, 863 (S.D. Ala. 1996)             Welch v. Laney, 57 F.3d 1004 (11th Cir. 1995)). By
(finding that “employer” as used in the FMLA parallels
“employer” in the FLSA; therefore, individual liability exists             18
under the FMLA); Knussman v. Maryland, 935 F. Supp. 659,                      But see Carter v. Uniform Rental Serv. Of Culpepper, Inc., 977 F.
664 (D. Md. 1996) (“Liability of individual defendants in             Supp. 753, 759 (W.D . Va. 1997) (following Title VII case law and finding
                                                                      no individua l liability under the FMLA); Frizzel v. Southwest Motor
their individual capacities is not foreclosed under the               Freight, Inc., 906 F. Supp . 441 (E.D. T enn. 1995) (analogizing the FMLA
FMLA.”); Johnson v. A.P. Prod., Ltd., 934 F. Supp. 625 (S.D.          to Title VII and rejecting individual liability under the FMLA ).
No. 01-5571                     Mitchell v. Chapman, et al.          31    32     Mitchell v. Chapman, et al.                           No. 01-5571

addressing the issue in terms of the FLSA, the Eleventh                    “employer.”20 Therefore, the plain text of the statute provides
Circuit avoided the potential interpretive dilemma posed in 29             the following definition of “employer”:
U.S.C. § 2611(4).
                                                                             (1) An employer means any person engaged in
   Similarly, the district courts have resolved the issue with               commerce or in any industry or activity affecting
conflicting results. See Morrow, 142 F. Supp. 2d at 1273                     commerce who employs 50 or more employees for each
(allowing FMLA suit against individual postal supervisors);                  working day during each of the 20 or more calendar
Keene, 127 F. Supp. 2d at 776 (holding no governmental                       workweeks in the current or proceeding calendar year.
individual liability under the FMLA); Klivitis v. County of                  See 29 U.S.C. § 2611 (4)(A)(i).
Luzerne, 52 F. Supp. 2d 403, 412 (allowing FMLA suit
against district justice in individual capacity); Meara, 27 F.               (2) An employer includes any person who acts directly
Supp. 2d at 291 (allowing FMLA suit against the district                     or indirectly in the interest of an employer to any of the
attorney in his individual capacity); Knussman, 935 F. Supp.                 employees of such employer; and an employer includes
at 664 (allowing FMLA individual capacity suit against                       any successor in interest of an employer. See 29 U.S.C.
officers in state highway patrol); Freemon, 911 F. Supp. at                  § 2611 (4)(A)(ii).
330-31 (allowing FMLA supervisory liability claim against
state hospital employee); Frizzell, 906 F. Supp. at 449                      (3) An employer includes any “public agency” as that
(determining no supervisory liability for public officials under             term is defined in the FLSA. See 29 U.S.C. § 2611
the FMLA).                                                                   (4)(A)(iii).

   Our independent examination of the FMLA’s text and                        (4) An employer includes the General Accounting Office
structure reveals that the statute does not impose individual                and the Library of Congress.21 See 29 U.S.C. § 2611
liability on public agency employers. Three factors compel                   (4)(A)(iv).
this conclusion.
                                                                              The relationship between “employer” and clauses (i) -(iv)
  First, the section defining “employer,” 29 U.S.C.                        is not in contention.        Rather, it is the purported
§ 2611(4)(A), explicitly separates the individual liability                interrelationship among clauses (i)-(iv) that yields conflicting
provision and public agency provision into two distinct                    views regarding whether the FMLA imposes individual
clauses. Section 2611(4)(A)19 commences with “‘The term                    liability on public agency employers. Compare Keene, 127
employer -- ’”, and follows with four clauses addressing what              F. Supp. 2d at 775 (explaining that Congress separated the
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               20
                                                                                   Througho 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 .

    19                                                                          21
      All further citations to “Section” shall refe r to Title 29 of the         Congress added Section 261 1(4)(A)(iv) several years following the
United States Code.                                                        enactment o f the FM LA. See Pub.L. 104-1, § 20 2(c)(1)(A) (1995).
No. 01-5571                  Mitchell v. Chapman, et al.       33    34    Mitchell v. Chapman, et al.                   No. 01-5571

individual liability provision from the public agency                employer “means” what is included in clause (i) and
provision in an effort to clarify the “commingling” of public        “includes” what is provided in clauses (ii), (iii), and (iv). On
agency and private employers evident in the FLSA) with               the other hand, the commingling of clauses (i)-(iv) into the
Morrow, 142 F. Supp. 2d at 1273 (interpreting the individual         term “employer” yields an interpretation that renders other
liability provision and public agency provision as inter-            provisions of the statute superfluous, as well as creates
related.) An examination of Section 2611(4)(A)’s text and            several oddities.
structure demonstrates that the individual liability provision
and public agency provision are separate and distinct.                   Initially, an interpretation that commingles clauses (i) and
                                                                     (ii) into the definition of employer presents little difficulty.
   As noted earlier, the FMLA introduces related provisions          For instance: “The term employer means any person engaged
through the use of the em dash. In accordance with this              in interstate commerce . . . who employees 50 or more
practice, Section 2611(4)(A) implements the em dash into its         employees . . .; and includes any person who acts directly or
definition of employer. See 29 U.S.C. § 2611(4)(A).                  indirectly in the interest of any person engaged in interstate
Similarly, Section 2611(4)(A)(ii) utilizes the em dash to            commerce who employs 50 or more employees . . . ; and any
establish a relationship between the individual liability            successor in interest of any person engaged in interstate
provision and the provision addressing successors in interest.       commerce . . . who employs fifty or more employees . . . .”22
See 29 U.S.C. § 2611(4)(A)(ii). Notwithstanding this                 See 29 U.S.C. § 2611(4)(A)(i) & (ii). However, when the
repeated and consistent use of the em dash, Section                  public agency provision is introduced into an interpretation
2611(4)(A) lacks any punctuation demonstrating an inter-             with clauses (i) and (ii), the statute provides -- “the term
relationship between clauses (ii)-(iv). Indeed, the separation       employer means any person engaged in interstate commerce
of otherwise related concepts (i.e., what the term “employer”        . . . who employees 50 or more employees . . .; and includes
“includes”) into distinctly enumerated clauses compels an            any person who acts directly or indirectly in the interest of
interpretation that treats each clause in an independent             any person engaged in interstate commerce . . .who employs
manner. This is particularly the case in light of clause (ii)’s      50 or more employees . . . ; and any successor in interest of
inclusion of an em dash preceding the individual liability           any person engaged in interstate commerce . . . who employs
provision and successor in interest provision. See 29 U.S.C.         fifty or more employees; and includes any public agency
§ 2611 (4)(A)(ii). It stands to reason that if clauses (ii) - (iv)   engaged in interstate commerce . . . who employs 50 or more
are similarly inter-related, the text of the statute would           employees . . .; and includes any person who acts directly or
likewise provide punctuation or analogous language linking           indirectly, in the interest of the public agency engaged in
the clauses. In the absence of such guidance, and in                 interstate commerce . . . who employs fifty or more
accordance with the plain text’s separation of the clauses into      employees; and any successor in interest of the public agency
distinct provisions, the structure of Section 2611(4)(A)             . . .engaged in interstate commerce . . . who employs fifty or
patently demonstrates that the individual liability provision        more employees . . . .” See 29 U.S.C. 2611(4)(A)(i),(ii), &
and public agency provision are separate and distinct.               (iii).
  The text of Section 2611(4)(A) further compels an
interpretation that separates the individual liability provision
from the public agency provision. The straightforward                     22
                                                                          This interpretation underlies our prior determination that the
interpretation advanced supra, demonstrates that the term            FM LA extends individ ual liability to p rivate-sector emplo yers.
No. 01-5571                       Mitchell v. Chapman, et al.            35     36     Mitchell v. Chapman, et al.                          No. 01-5571

  Beyond the obvious redundancy in this interpretation, the                     public agencies in general,24 it is an exercise in absurdity to
commingling of clause (i) and (ii) with the public agency                       consider that the FMLA sought to protect employees of two
provision renders superfluous Section 2611(4)(B). See 29                        long-standing federal entities from threats posed by any future
U.S.C. 2611(4)(B) (“[A] public agency shall be considered to                    successors in interest.25 Accordingly, we must reject an
be a person engaged in commerce or in an industry or activity                   interpretation that creates such a result.          See Lake
affecting commerce.”). In addition, it is well-settled that a                   Cumberland Trust, 954 F.2d at 1222.
public agency does not have to meet the 50 employee
requirement to be considered an employer under the statute.                       A third factor also undermines an interpretation of
See 29 C.F.R. § 825.104(a) (“Public agencies are covered                        employer that extends the individual liability provision to
employers without regard to the number of employees                             public agencies. A definition of employer that incorporates
employed.”). Consequently, an interpretation commingling                        the individual liability provision and public agency provision
clauses (i), (ii), and (iii) into the FMLA’s definition of                      into a single clause is substantially similar to, if not identical,
employer cannot be sustained. See Lake Cumberland Trust,                        to the FLSA’s definition of employer. Cf. 29 U.S.C. § 203
954 F.2d at 1222.                                                               (d) (“Employer includes any person acting directly or
                                                                                indirectly in the interest of any employer in relation to an
   The result is similarly untenable when the interpretation                    employee and includes a public agency, . . .”). As discussed
aggregates clause (iv) with clauses (i) and (ii).23 The result                  supra, the FMLA adopts several of the FLSA’s provisions.
yields the following: “The term employer means any person                       However, in each instance where the FMLA adopts a
engaged in interstate commerce . . . who employs 50 or more                     provision of the FLSA, the FMLA refers directly to the
employees . . .; and includes any person who acts, directly or                  FLSA, rather than provides a restatement of the FLSA’s
indirectly, in the interest of any person in interstate commerce                provision. The court in Keene explained the significance of
. . . who employs fifty or more employees. . . ; and includes                   the FMLA’s modification of the FLSA’s “employer”:
a successor in interest of any person engaged in interstate
commerce . . . who employs fifty or more employees . . . ;                        In 1974 Congress merely engrafted “Public Agency” into
and includes the General Accounting Office and the Library                        the FLSA by adding to an existing definition for private
of Congress; and includes a successor in interest of the                          employers. This did create an ambiguous situation
General Accounting Office and the Library of Congress.” See                       concerning the liability of public agency employees.
29 U.S.C. § 2611(4)(A)(i), (ii), & (iv). This interpretation                      But, in the FMLA, Congress explicitly took “Public
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                        24
                                                                                        Notwithstanding the relatively unique factual scenario addressing
consider, albeit skeptically, an interpretation of the FMLA                     successive public entities, the Morrow court successfully endeavo red to
that included protections against a successor in interest of                    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)).
    23
       A plain text interpretation of the statute would require                      25
commingling (i), (ii), (iii), and (iv). In the interests of convenience and             The Library of Congress, established in 1800, is the nation’s oldest
brevity, the Co urt shall proceed with its analysis of (iv) by omitting (iii)   federal cultural institution. The Budget and Accounting Act of 1921, 42
as the difficulties of clau se (iii) have bee n previously d iscussed .         Stat. 20 , created the G AO .
No. 01-5571                       Mitchell v. Chapman, et al.           37     38     Mitchell v. Chapman, et al.                           No. 01-5571

  Agency” out of the private employer definition and                           covered employer to any of the employees of the employer,
  disconnected it from liability based on a person acting                      any successor in interest of a covered employer, and any
  directly or indirectly in the interest of an employer.                       public agency.” 29 C.F.R. § 825.104(a). The regulation’s
  Therefore, a better way to view the situation is that the                    express separation between public agency and the “directly or
  FMLA corrected the ambiguity of the FLSA, as opposed                         indirectly” language supports our similar interpretation of
  to letting the ambiguity of the FLSA control the                             Section 2611(4)(A). In addition, the example of individual
  interpretation of the FMLA.                                                  liability provided in the regulations exclusively pertains to the
                                                                               corporate setting, thereby evincing an intent to limit such
Keene, 127 F. Supp.2d at 775.26 This rationale is entirely                     liability to the private sector. See 29 C.F.R. § 825.104 (d)
persuasive in light of the FMLA’s text and framework.                          (“As under the FLSA, individuals such as corporate officers
                                                                               ‘acting in the interest of an employer’ are individually liable
  We therefore conclude that the FMLA’s individual liability                   for any violations of the requirements of the FMLA.”). In
provision does not extend to public agencies. Three factors                    that same vein, we note that this Court has never extended
emanating from the text and framework of the statute support                   individual liability to public employees under the FLSA.27
this conclusion. First, Section 2611(4)(A) segregates the                      Consequently, in addition to the text and structure of the
provision imposing individual liability from the public agency                 statute, the regulations interpreting the FMLA and this
provision. Second, an interpretation that commingles the                       Court’s lack of precedent to the contrary, compel the
individual liability provision with the public agency provision                conclusion that the FMLA does not impose individual
renders certain provisions of the statute superfluous and                      liability on public agency employers.
results in several oddities. Finally, as evidenced by other
provisions of the statute, the FMLA distinguishes its                            Accordingly, we conclude that the district court correctly
definition of employer from that provided in the FLSA by                       interpreted the FMLA as to preclude Mitchell’s individual
separating the individual liability and public agency                          capacity claims under the statute.
provisions.
                                                                                 V.
  We note in passing that several factors extending beyond
the plain text of the statute support our conclusion against                     For the foregoing reasons, the decision of the district court
individual liability for public employers.           First, our                granting summary judgment in favor of the defendants is
interpretation is in accord with the regulations propounded by                 AFFIRMED.
the Secretary of Labor. Title twenty nine C.F.R. § 825.104(a)
provides that “employers covered by FMLA also include any
                                                                                    27
person acting, directly or indirectly, in the interest of a                            In 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 c laim asserted against administrators o f a state college
    26
                                                                               and ultimately concluded that the claim lacked merit. As an unpublished
        The Keene court’s analysis of the legislative history of the FLSA ’s   opinion, the decisio n is not binding precedent. See Bell v. Johnson, 308
pub lic agency provision is in accord with prior decisions of the United       F.3d 594 (6th Cir. 2002). Moreover, in light of the ultimate disposition
States Supreme Court, as well as the de cisions o f this Cou rt. See, e.g.,    of the case, the issue of individual liability for public agency employers
Ga rcia v. San Antonio Metro. Transit Auth., 469 U.S . 528 (1985 );            was of little relevance. Simply, this Court has not addressed a textual
Ma rshall v. Owensbo ro-Daviess Co unty H osp., 581 F.2d 116 (6th Cir.         analysis of whether the F LSA impo ses individual liability on public
197 8).                                                                        agency employers.
