In DeJesus v. Pete Geren, Acting Secretary of the Army, No. 3:08cv0043, 2008 U.S. Dist. LEXIS 48870 (M.D.Tenn. June 23, 2008), Dorthy DeJesus, a civilian employee of the United States Army, sued her employer alleging that she was impermissibly denied FMLA leave. The court granted the Army's motion to dismiss the claim. The court reasoned that, as a federal employee, DeJesus was covered by Title II of the FMLA, not Title I. Title I, the court found, specifically excluded federal employees from coverage. Because Title II does not allow federal employees to bring a civil action to enforce their rights, the court lacked jurisdiction to entertain the case.
Comment: The court was wrong. As a civilian in the military, DeJesus was covered by Title I of the FMLA, not Title II. As such, she had the right to sue the Army in federal court for monetary relief for violations of the FMLA.
Title I defines a covered employer to include a public agency. 29 USC 2611(4)(iii). A public agency is defined to include the government of the United States. 29 CFR 825.108, 825.800(public agency defined). Most federal employees, if they are covered by the FMLA, are covered by Title II. 29 CFR 825.109(a). However, "most" does not mean all.
The Title I regulations identify certain categories of federal employees who are covered by Title I of the FMLA, not Title II. See 29 CFR 825.109. For example, all Postal employees, if they are covered by the FMLA, are covered by Title I, not Title II. 29 CFR 825.109(b)1). The definition section of the DOL regulations expand on which federal employees are covered by Title I of the FMLA. See 29 CFR 825.800(employee defined). In pertinent part, the DOL defines an employee to include:
Any individual employed by the Government of the United States-- As a civilian in the military departments (as defined in section 102 of Title 5, United States Code). 29 CFR 825.800(employee defined)(2)(i)(A).
Section 102 of Title 5 defines the military departments as the Army, Navy, and Air Force.
This writer is at a loss to explain why the courts and the MSPB continue to flub this issue. The DOL Title I regulations have been in existence since January 6, 1995.