The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge
ORDER RE:DEFENDANT'S MOTION TODISMISS AND MOTION TO RAYMOND MABUS, SECRETARY STRIKE [Doc. No. 7]
On October 7, 2011 Defendant Raymond Mabus, Secretary for the Department of the United States Navy, filed a motion to dismiss the unnamed Doe Defendants in this action and Plaintiff Marivic Luat's fourth cause of action for alleged violations of the Family Medical Leave Act ("FMLA"), as well as a motion to strike Plaintiff's demands for punitive and exemplary damages. [Doc. No. 7.] Plaintiff filed an opposition, and Defendant filed a reply. [Doc. Nos. 8, 9.] On November 14, 2011, the Court found the motions suitable for determination on the merits and without oral argument pursuant to Civil Local Rule 7.1(d)(1). [Doc. No. 10.] For the reasons set forth below, the Court (i) GRANTS Defendant's motion to dismiss the Doe Defendants; (ii) STRIKES Plaintiff's FMLA claim as redundant, and DENIES Defendant's motion to dismiss the FMLA claim AS MOOT, and (iii) DENIES Defendant's motion to strike Plaintiff's demand for punitive and exemplary damages.
Plaintiff alleges she was discriminated against and sexually harassed while working as a Contract Specialist for the United States Navy. According to Plaintiff, her supervisor Mr. McCormick made at least two inappropriate sexual advances toward her, but when Plaintiff reported the conduct to supervising personnel they took no corrective action. Plaintiff further alleges her supervisors retaliated against her for reporting the wrongful conduct, and ultimately removed her from her position as a Contract Specialist in July 2009.
On March 11, 2011, Plaintiff initiated this action against the Department of the Navy, asserting four causes of action against Secretary of the Navy, Raymond Mabus. [Doc. No. 1.] Claims one through three assert violations of Title VII, and claim four alleges violations of the Family Medical Leave Act. In addition to various forms of compensatory relief, Plaintiff also demands punitive and exemplary damages. On October 7, 2011, Defendant moved to dismiss Plaintiff's fourth cause of action for violations of the FMLA, and all unnamed Doe Defendants because Mabus is the only proper defendant. [Doc. No. 7.] Defendant also moved to strike all references in the complaint to punitive and exemplary damages, asserting Plaintiff cannot recover such damages as a matter of law.
I. PLAINTIFF CANNOT STATE A FMLACLAIM AGAINST THE NAVY
Defendant moves to dismiss Plaintiff's fourth cause of action for violations of the FMLA under Federal Rule of Civil Procedure 12(b)(1) for lack of jurisdiction. "It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction." United States v. Mitchell, 463 U.S. 206, 212 (1983). "Federal sovereign immunity insulates the United States from suit in the absence of an express waiver of this immunity by Congress." Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009). Accordingly, Plaintiff cannot pursue her FMLA claim against the Secretary of the Navy unless Congress has expressly revoked the Navy's immunity for such claims. See Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985) ("the bar of sovereign immunity cannot be avoided by naming officers and employees of the United States as defendants") (citation omitted).
"The FMLA grants private and federal employees an entitlement to periods of leave for certain enumerated circumstances." Taylor v. Donley, 2010 U.S. Dist. LEXIS 21780 *14 (E.D. Cal. Mar. 10, 2010) (citing Russell v. U.S. Dep't of the Army, 191 F.3d 1016, 1018 (9th Cir. 1999)). However, only certain types of employees may bring an FMLA claim against their federal employer. "Title II of the FMLA, 5 U.S.C. § 6381 et seq., governs leave for federal civil service employees with more than twelve months of service." Russell, 191 F.3d at 1018. Title I governs a more limited group of employees, namely, those who are not covered by Title II. Id.; See 29 U.S.C. § 2611(2). "While Title I and Title II employees under the FMLA are afforded equivalent rights to leave time, Title I expressly provides a private right of action to remedy employer action violating FMLA rights. Title II contains no analogous provision" Id. (internal citations omitted); compare 29 U.S.C. § 2617(a)(2) (Title I) with 5 U.S.C. §§ 6381-6387 (Title II). Accordingly, a consensus among the circuits has evolved that, "the absence of an express waiver of the government's sovereign immunity in Title II of the FMLA bars private suits for violations of its provisions." Id. at 1019.*fn1
Here, Defendant contends Plaintiff is a Title II employee, and therefore, cannot maintain an FMLA claim against the Navy. [Doc. No. 7, p.3-4.] Plaintiff's vague allegations in her complaint-that she worked as a Contract Specialist for the Navy for several years-prevents the Court from determining whether Plaintiff should be classified as a Title I or Title II employee. [See Doc. No. 1, ¶¶3, 9.] As the party seeking to sue a federal agency, however, Plaintiff bears the burden of identifying an unequivocal waiver of immunity. Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983). Because Plaintiff's limited allegations do not establish she qualifies as a Title I employee, she has failed to identify any applicable waiver of the government's sovereign immunity.
In addition, Plaintiff does not dispute Defendant's assertion that she is a Title II employee. [Doc. No. 8, 9-10.] Instead, Plaintiff argues her fourth cause of action is actually a Title VII claim for discrimination, not an FMLA claim, because she alleges "Defendant discriminated against [her] by denying her sick/medical leave and terminating her." [Id.; Doc. No. 1, ¶29.] In Liu v. Amway Corp. the Ninth Circuit explained the difference between an FMLA claim and one for discrimination where the allegations are intertwined.
[T]he statutory and regulatory language of FMLA makes clear that where an employee is subjected to negative consequences simply because [s]he has used FMLA leave, the employer has interfered with the employee's FMLA rights under 29 C.F.R. § 825.220(a)(1).
In contrast, where an employee is punished for opposing unlawful practices by the employer, the issue then becomes one of discrimination and retaliation. In a similar determination made by the Seventh Circuit in Diaz v. Fort Wayne Corp., 131 F.3d 711 (7th Cir. 1997), the court explained that FMLA claims do not depend on discrimination since the issue is not that the employer treated one employee worse ...