UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

PAUL HARKER,

Plaintiff, 

v. 

MIAMI UNIVERSITY, et al., 

Defendants. 

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CASE NO. 1:17CV00830

JUDGE SUSAN DLOTT 

MAGISTRATE JUDGE KAREN L. 

LITKOVITZ 

MOTION TO DISMISS OF 

DEFENDANTS CHUCK MARTIN, 

STEVEN BROCKELBANK, AND 

DAVID SAYLER 

Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), Defendants Chuck Martin, Steven 

Brockelbank, and David Sayler (the “Individual Defendants”) move this Court for an Order 

dismissing Counts I and II of the Complaint. The Complaint fails to state a claim upon which relief 

may be granted against the Individual Defendants. Individual public employees sued in either their 

individual or official capacity are not “employers” subject to liability under the Family and Medical 

Leave Act. 

Respectfully submitted, 

/s/ Thomas B. Allen (0063956) 

Deborah S. Adams (0005607) 

FROST BROWN TODD LLC 

3300 Great American Tower 

301 E. Fourth Street 

Cincinnati, OH 45202 

(513) 651-6800 / (513) 651-6981 (Fax) 

dadams@fbtlaw.com

Thomas B. Allen (0063956) 

FROST BROWN TODD LLC 

9277 Centre Pointe Drive, Suite 300 

West Chester, OH 45069 

(513) 870-8225 / (513) 870-0999 (Fax) 

tallen@fbtlaw.com 

Trial Attorneys for Defendants 

Miami University, Chuck Martin, Steven 

Brockelbank, and David Sayler

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MEMORANDUM IN SUPPORT 

I. INTRODUCTION AND FACTUAL ALLEGATIONS 

Plaintiff Paul Harker has filed an action under the Family & Medical Leave Act (29 

U.S.C. §§ 2615(a)(1) and (a)(2)), against Miami University and three Individual Defendants. This 

motion is directed toward the claims against the Individual Defendants because they are not subject 

to suit under the FMLA. 

II. STANDARD OF REVIEW 

In response to a motion to dismiss, this Court will construe the Complaint in the light 

most favorable to the Plaintiff, and accept all of the Complaint’s factual allegations as true. This 

Court must also determine whether the facts alleged state “a plausible claim for relief.” Ashcroft 

v. Iqbal, 556 U.S. 662, 679 (2009). The Complaint does not state a plausible claim for relief, in 

light of the Sixth Circuit’s decision in Mitchell v. Chapman, 343 F.3d 811 (6th Cir. 2003). 

III. ANALYSIS 

A. Count I (Seeking Damages For Alleged Violation of FMLA Rights) Fails To 

State A Claim Against The Individual Defendants In Their Individual 

Capacity. 

Count I is a claim that all of the Defendants took action against Plaintiff for exercising his 

FMLA rights under 29 U.S.C. § 2615(a)(1). Complaint, ¶¶ 61-66 [ECF Doc. No. 1]. Under 

current caselaw, Count I fails to state a claim against the Individual Defendants. Only 

‘employers’ are liable for FMLA violations. Mitchell v. Chapman, 343 F.3d 811, 832 (6th Cir. 

2003) (“[T]he FMLA’s individual liability provision does not extend to public agencies.”). 

Individual employees of public agencies are not ‘employers’ for purposes of FMLA liability. 

Id.; see also Black v. Hamilton Cty. Pub. Def. Comm'n, S.D. Ohio No. 1:12-CV-503, 2015 WL 

3903706, *10 (Litkovitz, Magistrate Judge), report and recommendation adopted, S.D. Ohio No. 

1:12CV503, 2015 WL 5698503 (Dlott, Judge). 

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Plaintiff concedes the bar presented by Mitchell and filed the damage claims against the 

individuals merely “to preserve the issue.” See Complaint, ¶ 6, fn. 1 [ECF Doc. No. 1]. 

B. Count II (Seeking Damages For Alleged Retaliation For The Exercise Of 

FMLA Rights) Fails To State A Claim Against The Individual Defendants In 

Their Individual Capacity. 

Count II is a claim brought against all the defendants for alleged retaliation against 

Plaintiff for exercising his FMLA rights under 29 U.S.C. § 2615(a)(2). Id. ¶¶ 67-74. Mitchell

bars FMLA retaliation claims against individual employees of public agencies as well. See

Mitchell, 343 F.3d at 832. Accordingly, the Individual Defendants hereby move to dismiss 

Count II as well. 

C. All Claims Brought Against The Individual Defendants In Their Official 

Capacity Are Barred As A Matter of Law. 

Finally, Plaintiff also seeks equitable relief against the Individual Defendants in their 

official capacity. Complaint, ¶¶ 6-8. Official capacity claims are treated as claims against the 

public entity itself. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). Where a public entity 

has been named a defendant, official capacity claims against the individual employees of that 

defendant are redundant and must be dismissed. See id. at 166 (“As long as the government 

entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects 

other than name, to be treated as a suit against the entity.”). 

These official capacity claims against the Individual Defendants must be dismissed, 

because their employer (Miami University) is also a named Defendant. Id. (“[A] plaintiff 

seeking to recover on a damages judgment in an official-capacity suit must look to the 

government entity itself.”). 

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IV. CONCLUSION 

In light of Mitchell and Graham, both counts of the Complaint against the Individual 

Defendants must be dismissed, as a matter of law. 

Respectfully submitted, 

/s/ Thomas B. Allen (0063956) 

Deborah S. Adams (0005607) 

FROST BROWN TODD LLC 

3300 Great American Tower 

301 E. Fourth Street 

Cincinnati, OH 45202 

(513) 651-6800 / (513) 651-6981 (Fax) 

dadams@fbtlaw.com

Thomas B. Allen (0063956) 

FROST BROWN TODD LLC 

9277 Centre Pointe Drive, Suite 300 

West Chester, OH 45069 

(513) 870-8225 / (513) 870-0999 (Fax) 

tallen@fbtlaw.com

Trial Attorneys for Defendants 

Miami University, Chuck Martin, Steven 

Brockelbank, and David Sayler 

CERTIFICATE OF SERVICE 

I hereby certify that on February 9, 2018, I electronically filed the foregoing with the 

Clerk of the Court using the CM/ECF system, which will send notification to all counsel of 

record. 

/s/ Thomas B. Allen (0063956) 

0137873.0655987 4851-2905-4811v2 

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