F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 16 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
RETTA E. CORNFORTH,
Plaintiff-Appellee,
v.
No. 00-6119
UNIVERSITY OF OKLAHOMA
BOARD OF REGENTS, d/b/a
UNIVERSITY OF OKLAHOMA
HEALTH SCIENCES CENTER AT
OKLAHOMA CITY; BILL
BARRINGER,
Defendants-Appellants.
Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. CIV-99-1840-A)
Mark Hammons, (Heather Lake, with him on the brief), Hammons & Associates,
Oklahoma City, Oklahoma, for Plaintiff-Appellee.
Joseph Harroz, Jr., University of Oklahoma, Office of Legal Counsel, Norman,
Oklahoma, (Adam Buckley Cohan, University of Oklahoma, Office of Legal
Counsel, Norman, Oklahoma; Fred R. Gipson, University of Oklahoma, Health
Sciences Center, Oklahoma City, Oklahoma, with him on the briefs), for
Defendants-Appellants.
Before BRISCOE, MURPHY, Circuit Judges, and CROW, District Judge. *
MURPHY, Circuit Judge.
I. INTRODUCTION
After plaintiff-appellee, Retta Cornforth, was terminated from her position
as a medical staff secretary at the University of Oklahoma, she sued both the
Board of Regents of the University of Oklahoma (the “University”) and her
supervisor, Bill Barringer, alleging, inter alia, violations of the Pregnancy
Discrimination Act, Title VII of the Civil Rights Act of 1964, and the Family and
Medical Leave Act of 1993 (“FMLA”). Barringer filed a motion to dismiss the
FMLA claims and the motion was denied by the district court. Barringer then
brought this appeal. We affirm the denial of Barringer’s motion.
II. BACKGROUND
On May 26, 1999, Cornforth was terminated from her position as a medical
staff secretary. Cornforth thereafter filed a complaint in federal district court
naming both the University and Barringer as defendants. In the complaint, she
asserted three claims against the University and three claims against Barringer,
individually. Cornforth’s claims against Barringer consisted of (1) a state law
*
Honorable Sam A. Crow, District Judge, United States District Court for
the District of Kansas, sitting by designation.
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claim alleging intentional interference with an employment relationship, (2) a
constitutional claim arising under 42 U.S.C. § 1983, and (3) a claim that
Barringer acted in violation of FMLA.
The University and Barringer filed separate motions to dismiss. The
district court concluded that the FMLA claims Cornforth raised against the
University were barred by the Eleventh Amendment and granted the University’s
motion to dismiss those claims. 1 The district court’s conclusion was based on its
determination that FMLA does not abrogate the states’ sovereign immunity
because it is not a valid exercise of Congress’ enforcement powers under Section
Five of the Fourteenth Amendment. In his motion to dismiss, Barringer argued
that he is not an “employer” as that term is used in FMLA and thus cannot be held
liable in his individual capacity for violations of FMLA. Barringer also argued
that the Eleventh Amendment bars a federal court from hearing the FMLA claims
Cornforth has asserted against him. 2
The district court concluded that any FMLA claims asserted against
Barringer in his official capacity were barred by the Eleventh Amendment. The
1
“We have recognized that under Oklahoma law, the Board of Regents of
the University [of Oklahoma] is an arm of the state . . . .” Hensel v. Office of the
Chief Admin. Hearing Officer, 38 F.3d 505, 508 (10th Cir. 1994).
2
Barringer also moved to dismiss the state law claim Cornforth asserted
against him. The district court granted Barringer’s motion as to the state law
claim and the issue is irrelevant to this appeal.
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court then concluded that Barringer was an employer under the FMLA and could
be held individually liable for violations of the FMLA. The district court denied
Barringer Eleventh Amendment immunity from the FMLA claims asserted against
him in his individual capacity.
III. DISCUSSION
This court’s jurisdiction over this interlocutory appeal arises pursuant to the
collateral order doctrine. See P. R. Aqueduct & Sewer Auth. v. Metcalf & Eddy,
Inc., 506 U.S. 139, 144-47, (1993); Innes v. Kan. State Univ., 184 F.3d 1275,
1277 (10th Cir. 1999). Questions involving Eleventh Amendment immunity are
questions of law that this court reviews de novo. See Sturdevant v. Paulsen, 218
F.3d 1160, 1164 (10th Cir. 2000). Because our jurisdiction is limited, the sole
issue before this court is whether the district court properly denied Barringer’s
motion to dismiss the FMLA claims on Eleventh Amendment immunity grounds. 3
See Garramone v. Romo , 94 F.3d 1446, 1452 (10th Cir. 1996). Before we can
meaningfully address this issue, it is necessary to determine the nature of
Cornforth’s FMLA claims against Barringer.
In her complaint, Cornforth seeks “all damages or other relief allowed by
the FMLA including liquidated damages.” An employee who prevails in a civil
Although the University is listed as an appellant in this case, only
3
Barringer’s claim of entitlement to Eleventh Amendment immunity is properly
before this court.
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suit brought pursuant to FMLA is entitled to both damages and appropriate
equitable relief, “including employment, reinstatement, and promotion.” 29
U.S.C. § 2617(a)(1). A fair reading of Cornforth’s complaint leads to the
conclusion that Cornforth is seeking both damages and reinstatement. It is
unclear from the face of Cornforth’s complaint, however, whether the FMLA
claims were brought against Barringer in his individual capacity, his official
capacity, or in both his individual and official capacities. 4
The district court apparently interpreted the complaint to include FMLA
claims against Barringer in both his individual and official capacities. The
district court denied Barringer’s motion to dismiss any FMLA claims asserted
against him in his individual capacity, specifically stating that “[Cornforth’s]
claims against defendant Barringer in his individual capacity under FMLA
remain.”
The district court also concluded that Barringer was “entitled to the
immunity granted to defendant [University] for any official capacity claims under
FMLA.” The district court based this conclusion on a Supreme Court case in
which the Court reiterated that suits seeking damages from state officials in their
official capacities are, in reality, suits against the state barred by the Eleventh
4
The caption of Cornforth’s complaint simply names “Bill Barringer, an
individual,” as a defendant.
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Amendment. 5 See Hafer v. Melo, 502 U.S. 21, 25 (1991) (holding a state official
may be individually liable for damages based upon actions he takes in his official
capacity). Cornforth has not appealed from this partial grant of immunity to
Barringer because she is unable to bring such an appeal at this stage of the
litigation. See Clemens v. Kansas, 951 F.2d 287, 288 (10th Cir. 1991) (holding
that no interlocutory appeal may be taken from a grant of Eleventh Amendment
immunity). Accordingly, we express no opinion on the merits of the district
court’s partial grant of Eleventh Amendment immunity to Barringer but discuss
the issue merely to clarify that to the extent Cornforth has asserted FMLA claims
against Barringer in his official capacity those claims are not subject to this
appeal. We therefore address only whether the FMLA claims brought against
Barringer in his individual capacity for both money damages and equitable relief
are barred by the Eleventh Amendment.
A. Claims for Damages
5
The district court did not analyze whether the Ex parte Young doctrine
applies to Cornforth’s claims for equitable relief brought against Barringer in his
official capacity. See Ex parte Young, 209 U.S. 123, 159-60 (1908) (holding that
the Eleventh Amendment generally does not bar official-capacity claims seeking
prospective injunctive relief from a state official); see also ANR Pipeline Co. v.
Lafaver, 150 F.3d 1178, 1188 (10th Cir. 1998) (“Under the Ex parte Young legal
fiction, when an official of a state agency is sued in his official capacity for
prospective equitable relief, he is generally not regarded as ‘the state’ for
purposes of the Eleventh Amendment and the case may proceed in federal
court.”).
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Eleventh Amendment immunity is available when suits seeking damages are
brought directly against a state. See Buchwald v. Univ. of N.M. Sch. of Med., 159
F.3d 487, 494 n.3 (10th Cir. 1998); Johns v. Stewart, 57 F.3d 1544, 1552 (10th
Cir. 1995). As a general rule, suits seeking damages from state officials in their
individual capacities are not barred by the Eleventh Amendment. See Hafer, 502
U.S. at 30-31; Papasan v. Allain, 478 U.S. 265, 277 n.11 (1986). “[A] suit for
money damages may be prosecuted against a state officer in his individual
capacity for unconstitutional or wrongful conduct fairly attributable to the officer
himself, so long as the relief is sought not from the state treasury but from the
officer personally.” Alden v. Maine, 527 U.S. 706, 757 (1999). The Eleventh
Amendment is not implicated in such suits because any award of damages will be
satisfied from the individual’s personal assets and will not be paid from the state
treasury. If the sovereign is obligated to pay any damage award entered against
the state official, however, the Eleventh Amendment bars the suit. See Edelman
v. Jordan, 415 U.S. 651, 663 (1974).
Barringer initially argued that the State of Oklahoma is obligated under
state law to indemnify him for any FMLA violations 6 and, consequently,
Cornforth’s claims against him for damages are barred by the Eleventh
Amendment because any damage award Cornforth obtains would be satisfied from
6
See Okla. Stat. Ann. tit. 51, § 162.
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the state treasury. In his reply brief, Barringer concedes, as he must, that his
position is unconditionally foreclosed by Circuit precedent. See Griess v.
Colorado, 841 F.2d 1042, 1045-46 (10th Cir. 1988). Although state monies may
ultimately be used to satisfy a judgment obtained against a state official sued in
his individual capacity, a state cannot extend its sovereign immunity to its
employees by voluntarily assuming an obligation to indemnify them. See id.
Barringer next contends that an award of damages to Cornforth would
effectively compel the University to comply with FMLA. Thus, he argues, the
University is the real party in interest and the Eleventh Amendment bars federal
courts from hearing Cornforth’s FMLA claims against him for damages. See
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 n.11 (1984) (“[A]
suit is against the sovereign if the judgment sought would expend itself on the
public treasury or domain, or interfere with the public administration, or if the
effect of the judgment would be to restrain the Government from acting, or to
compel it to act.”). Presumably, Barringer believes that an award of damages
against him will prompt the University to comply with FMLA either to protect its
employees from personal liability or to avoid any obligation it may have to
indemnify its employees.
Barringer’s argument, however, is based purely on conjecture and he has
failed to demonstrate or even argue that a judgment against him individually for
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damages would legally require the University to comply with FMLA. The
University may choose to comply with FMLA for any number of reasons, and
Barringer has not demonstrated that a decision by the University to comply with
FMLA in the wake of a damage award against him is any less a voluntary act than
a state’s choice to indemnify its employees. The compliance and any attendant
costs would, in no way, be forced upon the University by the outcome of the
federal suit, but would constitute a purely voluntary choice on the part of the
University. Thus, Barringer’s argument that the University is the real party in
interest is essentially no different than the argument rejected by this court in
Griess.
Barringer’s arguments that the Eleventh Amendment bars the federal courts
from hearing Cornforth’s FMLA claims for damages against him in his individual
capacity are without merit. 7
B. Claims for Equitable Relief
Barringer advances three arguments in support of dismissal of Cornforth’s
FMLA claims against him individually for injunctive relief. Only two of those
arguments, however, involve assertions that the claims are barred by the Eleventh
7
On appeal, Barringer has not asserted any personal immunity defenses to
the claims against him for damages and, consequently, we do not address whether
any would apply in this case. See Kentucky v. Graham, 473 U.S. 159, 166-67
(1985) (“[A]n official in a personal-capacity action may, depending on his
position, be able to assert personal immunity defenses, such as objectively
reasonable reliance on existing law.”).
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Amendment. Barringer first contends that if he is ordered to reinstate Cornforth
or provide her with FMLA benefits in the future, the University will be coerced
into providing the relief, thereby eviscerating its Eleventh Amendment immunity.
This argument has been considered and rejected by the Supreme Court.
In the seminal case of Ex parte Young, the Supreme Court made it clear that
a private individual may sue a state official for prospective injunctive relief in
federal court even if the Eleventh Amendment bars such claims from being
brought against the state itself. See 209 U.S. 123, 159-60 (1908); see also Green
v. Mansour, 474 U.S. 64, 68 (1985) (holding that federal courts have jurisdiction
over claims against state officials seeking prospective injunctive relief “designed
to end a continuing violation of federal law”). Thus, Barringer’s argument that
the University’s immunity will be eviscerated if Cornforth obtains injunctive
relief from him is totally without merit.
Barringer, however, also contends that this case presents an exception to
the general rule that federal courts have jurisdiction over suits against state
officials seeking prospective injunctive relief. That exception, first articulated by
the Supreme Court in Idaho v. Coeur d’Alene Tribe, 521 U.S. 261 (1997), bars
suits seeking relief that would “implicate[] special sovereignty interests.” Id. at
281; see also Buchwald, 159 F.3d at 495 n.6. This court has held that Coeur
d’Alene applies when the injunctive relief sought is “the functional equivalent to
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a form of legal relief against the state that would otherwise be barred by the
Eleventh Amendment.” ANR Pipeline Co. v. Lafaver, 150 F.3d 1178, 1190 (10th
Cir. 1998) (quotation omitted). Barringer has failed to identify any such “special
sovereignty interest” in this case but, instead, simply asserts that a grant of
injunctive relief against Barringer would effectively require the University to
comply with federal law. The Court has repeatedly held, however, that suits
brought pursuant to Ex parte Young seeking to end a continuing violation of
federal law are not barred by the Eleventh Amendment. See, e.g., Green, 474
U.S. at 68 (“Remedies designed to end a continuing violation of federal law are
necessary to vindicate the federal interest in assuring the supremacy of that
law.”). Thus, the injunctive relief sought by Cornforth against Barringer does not
implicate a special sovereignty interest and the Coeur d’Alene exception is
inapplicable.
Barringer also argues that because the University will bear the ancillary
costs of Barringer’s compliance with any injunction, the University is the real
party in interest and the claims are barred by the Eleventh Amendment.
Barringer’s argument was rejected by the Supreme Court in Edelman v. Jordan.
See 415 U.S. at 665 (“State officials, in order to shape their official conduct to
the mandate of the Court’s decrees, would more likely have to spend money from
the state treasury than if they had been left free to pursue their previous course of
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conduct. Such an ancillary effect on the state treasury is a permissible and often
an inevitable consequence of the principle announced in Ex parte Young [].”)
In addition to his Eleventh Amendment arguments, Barringer also asserts
that Cornforth’s claims against him for injunctive relief should be dismissed
because he is not an “employer” as that term is defined in FMLA. Compare
Kilvitis v. County of Luzerene, 52 F. Supp. 2d 403, 411-16 (M.D. Pa. 1999), with
Keene v. Rinaldi, 127 F. Supp. 2d 770, 774-78 (M.D.N.C. 2000). Barringer
contends that the term “employer” should not be interpreted to include individual
supervisors. He argues that such an interpretation would render the statute absurd
because Barringer, in his individual capacity, is unable to provide the injunctive
relief Cornforth seeks.
Our jurisdiction over this interlocutory appeal is strictly confined only to
those issues involving the Eleventh Amendment. Because Barringer’s argument
does not involve a claim of Eleventh Amendment immunity, it is not properly
before this court. Accordingly, we can not, and do not, express any opinion on
whether Cornforth’s FMLA claims for injunctive relief asserted against Barringer
in his individual capacity should be dismissed either because Cornforth cannot
obtain such relief against Barringer in his individual capacity 8 or because the term
8
See, e.g., Hill v. Shelander, 924 F.2d 1370, 1374 (7th Cir. 1991)
(“[I]njunctive relief against a state official may be recovered only in an official
capacity suit.”); Smith v. Plati, 56 F. Supp. 2d 1195, 1203 (D. Colo. 1999)
(dismissing claims against state official in his individual capacity because the
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“employer” as used in FMLA should not be interpreted to include individual
supervisors.
Barringer’s arguments are either foreclosed by Supreme Court precedent or
do not involve the Eleventh Amendment. We hold there is no Eleventh
Amendment bar to federal court jurisdiction over Cornforth’s claims against
Barringer for prospective injunctive relief.
IV. CONCLUSION
That portion of the order entered by the district court in which the court
denied Barringer’s motion to dismiss the FMLA claims asserted against him in his
individual capacity on Eleventh Amendment grounds is affirmed. Cornforth’s
application to supplement her answer brief is denied because the issues addressed
are not properly before this court.
relief plaintiff requested could only be obtained against the defendant in his
official capacity).
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