The Federal Sector FMLA Blog

Federal Court Applies Wrong FMLA Standard to Federal Civil Service Employee

In Cole v. Powell, No. 07-1829 (RJL), 2009 U.S. Dist. LEXIS 22087 (D.D.C. March 19, 2009), the court dismissed the employee's FMLA claims as lacking in merit.  In that case, Janie Cole was employed in the federal civil service as a GS-9 staffing assistant by the National Gallery of Art.  Pursuant to an EEO settlement, Cole would be promoted to a GS-11 position after 90 days if she demonstrated improved and sustained dependability regarding attendance, including the advance scheduling of leave.  Cole had to schedule leave 24 hours in advance and provide documentation justifying any unscheduled leave. 

Cole incurred three unscheduled absences during the 90-day period.  As a result, the Gallery denied Cole the promotion. Cole sued, alleging that the settlement agreement was unenforceable because it violated the FMLA.  Specifically, she alleged that the 24-hour notice and medical documentation requirements violated the FMLA.  The court disagreed.  Relying on 29 CFR 825.303(a) and 29 USC 2613, the court found that the 24-hour advance notice and medical documentation requirements were permitted by the FMLA.  As such, the court concluded that Cole had failed to demonstrate that the settlement agreement interfered with her FMLA rights.

Comment:  The decision reaches the correct result for the wrong reason.  Federal civil service employees are covered by Title II of the FMLA (the OPM regulations), not Title I (the DOL FMLA regulations).  The court's reliance on Title I (29 USC 2613) and the DOL FMLA regulations (29 CFR 825.303(a)) was incorrect.  The court should have simply dismissed the case for failure to state a claim because federal civil service employees, unlike their Title I counterparts, do not have the right to file a federal civil suit to enforce their Title II FMLA rights. 

FMLA Expansion Does Not Apply Equally to Federal Employees

The recent expansion of the FMLA does not apply equally to all federal employees.  The amendment of the FMLA adds two new situations permitting non-civil service federal employees covered by Title I of the FMLA (DOL regulations) to take up to 12 weeks of FMLA leave: (1) because of a qualifying exigency (to be defined by the DOL) arising out of the fact that a spouse, son, daughter, or parent is on or has been called to active duty; and to take up to 26 weeks of FMLA leave in a single year (2) to care for a spouse, son, daughter, parent, or next of kin who was injured while on active military duty.

The legislation, in contrast, modifies Title II of the FMLA (OPM regulations) to permit civil service federal employees to take up to to 26 weeks of FMLA leave in the second situation only.  The modification of Title II does not include leave because of a qualifying exigency due to active military duty.  No explanation is provided for the distinction.

Comment: There are four federal sector variants of the FMLA that apply to different federal employees.  While similar, the federal sector FMLA variants are not now nor have they ever been identical.  To comply with the FMLA it is critical to know which variant of the FMLA applies in any given situation.      

Civil Service Employees Do Not Have the Right to Sue for FMLA Violations

In Martinez v. Snow, No. 1:04-cv-6285-SMS, 2006 U.S. Dist. LEXIS 93191 (E.D.Cal. Dec. 12, 2006) the court dismissed the FMLA civil suit of an IRS employee on the basis of sovereign immunity and failure to exhaust administrative remedies.

Regarding the former, the Court noted that sovereign immunity was an important limitation on the subject matter jurisdiction of federal courts.  The United States, the court observed, is immune from suit unless it consents to be sued, and the terms of its consent to be sued in a court defines the court's jurisdiction to hear the suit.  The United States, as sovereign, can only be sued to the extent that it has waived its sovereign immunity. 

Here, the Court found that the right to enforce the FMLA for federal employees of under one year is governed by Title I of the FMLA.  Title I expressly provides for a private right of action to enforce the entitlement to leave and to obtain compensation for FMLA violations.  However, the provisions governing federal civil service employees with more than twelve months of service are governed by Title II of the FMLA.  Title II, the court found, does "not grant a private right of action to an aggrieved employee."  The failure, the court stated, "to include an express private right of action constitutes a bar to a claim such as Plaintiff's because there is no consent to suit or waiver of sovereign immunity."

The Court also found that, because of the comprehensive nature of the Civil Service Reform Act (CSRA), any avenue of relief for violation of Title II of the FMLA through the Administrative Procedure Act or via a Bivens suit was foreclosed. 

The Court also based its decision to dismiss the Title II FMLA claim on Plaintiff's failure to exhaust her administrative remedies.  The court found that, under the CSRA, the Plaintiff had two avenues to pursue her FMLA claim: through a statutory procedure or to seek relief through available union grievance procedures, but not both.  5 USC 7121(a)(1).  Here, Plaintiff elected to file a grievance, but abandoned that process before the matter went to arbitration.  The court found that by abandoning the grievance process Plaintiff failed to exhaust her administrative remedies.  According to the court, the "failure to exhaust her grievance completely results in Plaintiff's failing to establish jurisdiction or to state claim."

Comment:  The decision appears to have reached the correct result although the court's reasoning is questionable.  The court is correct that federal civil service employees do not have the right to maintain a private suit for violations of Title II of the FMLA.  It is also correct that federal civil service employees with 12 months of employment are covered by Title II.  The court's statement that federal employees with less than 12 months of service are covered by Title I of the FMLA and, therefore, have the right to file a civil action for FMLA violations is incorrect.  Title I covers all non-civil service federal employees.  A federal civil service employee with less than 12 months of employment simply has no right to FMLA leave.  Moreover, there are three eligibility requirements for Title I FMLA coverage one of which is that the employee have worked for the federal government for at least 12 months.

The court's finding that federal employee's were precluded from bringing an FMLA suit indirectly through the Administrative Procedure Act or a Bivens suit is correct.  In addition to the CSRA, most courts have found against such indirect FMLA suits because of the comprehensive nature of the FMLA remedial scheme itself. 

Finally, the court's determination that the employee's FMLA suit was precluded by the CSRA because she failed to exhaust her administrative remedies appears to be somewhat misleading.  Ms. Martinez did not suffer an adverse action within the meaning of the CSRA (the employer merely denied her request for FMLA leave).  As such, she did not have the right to file an MSPB appeal alleging solely based on a violation of the FMLA.  Accordingly, her only avenue of relief for violation of Title II of the FMLA was to file a grievance. When she abandoned her grievance, she lost the ability to seek relief for any FMLA violation.