United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
matter is before the Court on the Court's request for
briefing regarding the question of whether Plaintiff is
entitled to a jury trial on her claim under the Family and
Medical Leave Act (“FMLA”) against the U.S.
Postal Service, which is effectively a claim against the
United States. After reviewing the parties' briefs and
the relevant legal authorities, the Court concludes that
Plaintiff has no right to a jury trial on her FMLA claim.
AND PROCEDURAL BACKGROUND
Vanessa Griego is a current employee of the United States
Postal Service (“USPS”). Doc. 14 at ¶ 7.
Defendant Megan J. Brennan is being sued in her capacity as
U.S. Postmaster General. Id. at ¶ 3.
Amended Complaint [Doc. 14], Griego alleges that starting in
October of 2005, she held several different positions with
the USPS. Griego alleges that she suffers from several
disabilities, including chronic migraines and chronic back
pain. She further alleges that her spouse is totally
disabled. According to the Amended Complaint, in 2012 the
USPS assigned her to the graveyard shift, which disturbed her
sleep cycle and exacerbated her migraines. Griego applied for
and received leave under the FMLA for her disabilities and
her spouse's condition. However, Griego alleges that
Defendant then retaliated against her by denying her overtime
shifts, refusing to put her on the swing shift, denying her
training opportunities and restricting her work hours,
despite the fact that Griego's physician had informed
Defendant that she had no physical restrictions to perform
her job duties. Griego further alleges that Defendant
discriminated against her on the basis of her race (Hispanic)
and her disabilities. Greigo filed an EEO complaint, which
she alleges resulted in further retaliation against her.
Amended Complaint, Griego asserts claims for violation of her
rights under the FMLA, unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964,
disability discrimination in violation of the Rehabilitation
Act, and retaliation in violation of the Rehabilitation Act.
January 17, 2017, the parties filed their Joint Status Report
[Doc. 17], which revealed that the parties disagree as to
whether Griego is entitled to a trial by jury on her FMLA
claim. Accordingly, on January 24, 2017, the Court ordered
the parties to brief the question, which they did.
See Docs. 24 and 26. Since that time, the Defendant
has filed a motion for summary judgment. Doc. 35.
preliminary matter, the Court notes that the U.S. Postal
Service is considered an arm of the executive branch of the
U.S. government, and therefore entitled to the protection of
sovereign immunity. See Dolan v. United States Postal
Service, 546 U.S. 481, 483-84 (2006). A suit against the
Postmaster General in her official capacity, as here, is
treated as a suit against the government employer.
Kentucky v. Graham, 473 U.S. 159, 166 (1985);
see also Buford v. Runyon, 160 F.3d 1199, 1201 n.3
(8th Cir. 1998) (suit against postmaster general equates to
suit against Postal Service for immunity purposes).
the doctrine of sovereign immunity, an action against the
United States is barred, and no subject matter jurisdiction
exists, if the United States has not explicitly waived its
immunity against such a suit. United States v.
Mitchell, 463 U.S. 206, 212 (1983); see also U.S.
Postal Serv. v. Flamingo Indus. (USA) Ltd., 540 U.S.
736, 744 (2004) (“the Postal Service is part of the
Government and that status indicates immunity unless there is
a waiver”). When suing the government, the plaintiff
bears the burden of showing that the government has waived
its sovereign immunity. McNutt v. General Motors
Acceptance Corp., 298 U.S. 178, 188 (1936); James v.
United States, 970 F.2d 750, 753 (10th Cir. 1992).
“Any waiver of immunity must be ‘unequivocally
expressed, ' and any limitations and conditions upon the
waiver ‘must be strictly observed and exceptions
thereto are not to be implied.'” Lehman v.
Nakshian, 453 U.S. 156, 160-61 (1981) (citations
omitted). See also United States v. Testan, 424 U.S.
392, 399 (1976) (“It long has been established, of
course, that the United States, as sovereign, ‘is
immune from suit save as it consents to be sued ... and the
terms of its consent to be sued in any court define that
court's jurisdiction to entertain the suit, '”
quoting United States v. Sherwood, 312 U.S. 584, 586
(1941)) (modification in Testan)).
Lehman v. Nakshian, 453 U.S. 156 (1981), the Supreme
Court addressed the circumstances under which the government
has consented to be tried by a jury. It explained: “It
has long been settled that the Seventh Amendment right to
trial by jury does not apply in actions against the Federal
Government.” Id. at 160. The Court noted that
the government is immune from suit except to the extent it
consents to be sued, and “[t]hus, [that] if Congress
waives the Government's immunity from suit . . . the
plaintiff has a right to a trial by jury only where that
right is one of ‘the terms of [the Government's]
consent to be sued.' ” Id. at 160 (quoting
Testan, 424 U.S. at 399). The Court reiterated that
the government's consent must be unambiguous.
Id. Applying these principles, the Supreme Court
concluded that a provision in the Age Discrimination in
Employment Act stating that aggrieved federal employees
“may bring a civil action in any Federal district court
of competent jurisdiction for such legal or equitable relief
as will effectuate the purposes” of the act did not
provide a jury trial right. Id. at 168-69.
Griego has failed to meet her burden to show that the
government has unambiguously consented to a jury trial on an
FMLA claim. She has pointed the Court to no language in the
FMLA or in any judicial precedent that supports a finding of
a right to a jury trial in FMLA actions against the United
States. Nowhere does she adequately address the central issue
of the abrogation of sovereign immunity, or overcome the
distinction between the right to a jury against government
defendants as opposed to private entities. The case upon
which Griego primarily relies, Smith v. Diffee
Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 965 (10th Cir.
2002), is inapplicable because the defendant was a private
company, not the federal government. Thus, the court's
analysis in Smith has no bearing here. Griego
further contends that she has a right to a jury trial because
the Tenth Circuit has not determined that federal employees
have no such right. This position misapprehends the
applicable standard, shifting it to an assumption that an
individual has a right to a jury trial against the government
unless there is authority to the contrary. In fact, the
opposite is true-absent an affirmative showing of explicit
waiver of sovereign immunity, the default is a non-jury trial
against the government.
the parties agree that Griego's Title VII and
Rehabilitation Act claims are triable to a jury because those
statutes provide for jury actions against the United States
under their own specific terms, pursuant to amendments made
in the Civil Rights Act of 1991, 42 U.S.C. §§
1981a(a)(1) (race and national origin discrimination),
1981a(a)(2) (disability discrimination), 1981a(c). Section
1981a(c) provides for jury trials in damages actions under
both 1981a(a)(1) and 1981a(a)(2). Section 1981a(a)(1) states
that compensatory and punitive damages may be pursued under
42 U.S.C. § 2000e-16, a provision that governs suits
against the United States. In contrast, the text of the FMLA
does not explicitly abrogate the government's sovereign
immunity regarding jury trials in actions brought by federal
employees. This statutory recognition of jury trial rights in
actions against the United States in Title VII and
Rehabilitation Act cases contrasts with the FMLA, a remedial
statute similar in purpose in some ways to Title VII and the
Rehabilitation Act, but one that courts continue to maintain
does not provide for jury rights in actions against the
United States. For this reason, federal courts that have
examined the issue have concluded that in the absence of an
explicit waiver, there is no right to a jury trial for an
FMLA claim against the government. See, e.g., Bonzani v.
Shinseki, 895 F.Supp.2d 1003, 1011 (E.D. Cal. 2012)
(“Because the FMLA does not contain any express
provisions granting a right to a jury trial, the government
has not consented to a trial by jury in FMLA claims against
the government.”); Steinhardt v. Potter, 326
F.Supp.2d 449, 451 (S.D.N.Y. 2004) (citing Davis v.
Henderson, 238 F.3d 420, 2000 WL 1828476 (6th Cir. 2000)
(unpublished); Viveros v. Donahoe, No. 10-cv-8593,
2012 WL 12883966, at *4 (C.D. Cal. May 22, 2012)
(unpublished). For the same reasons set forth by these these
courts, this Court concludes that Congress has not explicitly
granted FMLA claimants the right to a jury trial against the
the Court is unpersuaded by Griego's argument that trying
the FMLA claim to the Court while trying the other claims to
the jury will result in undue jury confusion. First, this
concern can hardly be considered to outweigh the principles
of sovereign immunity outlined herein. Second, the Court is
convinced that the trial can be conducted in a manner such
that juror confusion can be kept to a minimum.
IS THEREFORE ORDERED that Plaintiffs FMLA claim will
be tried ...