## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 16 2001 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RETTA E. CORNFORTH,

Plaintiff-Appellee,

v. UNIVERSITY OF OKLAHOMA BOARD OF REGENTS, d/b/a UNIVERSITY OF OKLAHOMA HEALTH SCIENCES CENTER AT OKLAHOMA CITY; BILL BARRINGER,

Defendants-Appellants. No. 00-6119

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 Oklaho ma, Office of Legal Counsel, Norman, Oklahoma; Fred R. Gipson, Universi ty of Oklahoma, Health Sciences Center, Oklahoma City, Oklahoma, with him on the briefs), for Defendants-Appellants.* Honorable Sam A. Crow, District Judge, United State s District Court for

the District of Kansas, sitting by designation. -2- Before BRISCOE , MURPHY , Circuit Judges, and CROW , District Judge. *

MURPHY , Circuit Judge.

I. INTRODUCTION After plaintiff-appellee, Retta Cornforth, was ter minated from her position as a medical staff secretary at the University of O klahoma, 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 A ct of 1964, and the Family and Medical Leave Act of 1993 (“FMLA”). Barringer file d a motion to dismiss the FMLA claims and the motion was denied by the distri ct 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 comp laint in federal district court naming both the University and Barringer as defenda nts. In the complaint, she asserted three claims against the University and th ree claims against Barringer, individually. Cornforth’s claims against Barringerconsisted of (1) a state law1 “We have recognized that under Oklahoma law, the Bo ard 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. -3- claim alleging intentional interference with an emp loyment 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 Cornf orth raised against the University were barred by the Eleventh Amendment an d 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 state s’ sovereign immunity because it is not a valid exercise of Congress’ enf orcement 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 i n 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 fr om hearing the FMLA claims Cornforth has asserted against him. 2 The district court concluded that any FMLA claims a sserted against Barringer in his official capacity were barred by t he Eleventh Amendment. The3 Although the University is listed as an appellant i n this case, only

Barringer’s claim of entitlement to Eleventh Amendm ent immunity is properly before this court. -4- court then concluded that Barringer was an employerunder the FMLA and could be held individually liable for violations of the F MLA. The district court denied Barringer Eleventh Amendment immunity from the FMLAclaims 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 juri sdiction is limited, the sole issue before this court is whether the district cou rt 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 o ther relief allowed by the FMLA including liquidated damages.” An employe e who prevails in a civil4 The caption of Cornforth’s complaint simply names “ Bill Barringer, an

individual,” as a defendant. -5- suit brought pursuant to FMLA is entitled to both d amages and appropriate equitable relief, “including employment, reinstatem ent, 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 a nd reinstatement. It is unclear from the face of Cornforth’s complaint, how ever, whether the FMLA claims were brought against Barringer in his indivi dual capacity, his official capacity, or in both his individual and official capacities. 4 The district court apparently interpreted the compl aint 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, specificall y stating that “[Cornforth’s] claims against defendant Barringer in his individua l capacity under FMLA remain.” The district court also concluded that Barringer wa s “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 damag es from state officials in their official capacities are, in reality, suits against the state barred by the Eleventh5 The district court did not analyze whether the Ex parte Youngdoctrine

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 offic ial-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 Younglegal fiction, when an official of a state agency is sued in his official capacity for prospective equitable relief, he is generally not r egarded as ‘the state’ for purposes of the Eleventh Amendment and the case may proceed in federal court.”). -6- Amendment. 5 See Hafer v. Melo , 502 U.S. 21, 25 (1991) (holding a state official may be individually liable for damages based upon a ctions he takes in his official capacity). Cornforth has not appealed from this pa rtial grant of immunity to Barringer because she is unable to bring such an ap peal 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 gr ant of Eleventh Amendment immunity). Accordingly, we express no opinion on t he 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 Corn forth has asserted FMLA claims against Barringer in his official capacity those cl aims are not subject to this appeal. We therefore address only whether the FMLAclaims brought against Barringer in his individual capacity for both money damages and equitable relief are barred by the Eleventh Amendment. A. Claims for Damages6 See Okla. Stat. Ann. tit. 51, § 162. -7- 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 damag es from state officials in their individual capacities are not barred by the Elevent h 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 off icer in his individual capacity for unconstitutional or wrongful conduct f airly attributable to the officer himself, so long as the relief is sought not from t he 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 a ny award of damages will be satisfied from the individual’s personal assets andwill 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 Amendmentbars the suit. See Edelman v. Jordan , 415 U.S. 651, 663 (1974). Barringer initially argued that the State of Oklaho ma is obligated under state law to indemnify him for any FMLA violations 6 and, consequently, Cornforth’s claims against him for damages are barr ed by the Eleventh Amendment because any damage award Cornforth obtain s would be satisfied from-8-

the state treasury. In his reply brief, Barringer concedes, as he must, that his position is unconditionally foreclosed by Circuit p recedent. See Griess v. Colorado , 841 F.2d 1042, 1045-46 (10th Cir. 1988). Althoug h state monies may ultimately be used to satisfy a judgment obtained a gainst 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 FM LA. Thus, he argues, the University is the real party in interest and the El eventh Amendment bars federal courts from hearing Cornforth’s FMLA claims againsthim 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 sough t would expend itself on the public treasury or domain, or interfere with the pu blic administration, or if the effect of the judgment would be to restrain the Gov ernment from acting, or to compel it to act.”). Presumably, Barringer believe s that an award of damages against him will prompt the University to comply wi th FMLA either to protect its employees from personal liability or to avoid any o bligation it may have to indemnify its employees. Barringer’s argument, however, is based purely on c onjecture and he has failed to demonstrate or even argue that a judgmentagainst him individually for7 On appeal, Barringer has not asserted any personal immunity defenses to

the claims against him for damages and, consequentl y, 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 actio n may, depending on his position, be able to assert personal immunity defen ses, such as objectively reasonable reliance on existing law.”). -9- damages would legally require the University to comply with FMLA. The University may choose to comply with FMLA for any n umber 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 a ny less a voluntary act than a state’s choice to indemnify its employees. The c ompliance and any attendant costs would, in no way, be forced upon the Universi ty by the outcome of the federal suit, but would constitute a purely volunta ry choice on the part of the University. Thus, Barringer’s argument that the Un iversity is the real party in interest is essentially no different than the argum ent rejected by this court in
Griess

. Barringer’s arguments that the Eleventh Amendment b ars the federal courts from hearing Cornforth’s FMLA claims for damages ag ainst him in his individual capacity are without merit. 7 B. Claims for Equitable Relief Barringer advances three arguments in support of di smissal of Cornforth’s FMLA claims against him individually for injunctive relief. Only two of those arguments, however, involve assertions that the cla ims are barred by the Eleventh-10-

Amendment. Barringer first contends that if he is ordered to reinstate Cornforth or provide her with FMLA benefits in the future, th e University will be coerced into providing the relief, thereby eviscerating its Eleventh Amendment immunity. This argument has been considered and rejected by t he 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 p rospective injunctive relief in federal court even if the Eleventh Amendment bars s uch 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 prospec tive injunctive relief “designed to end a continuing violation of federal law”). Th us, Barringer’s argument that the University’s immunity will be eviscerated if Co rnforth obtains injunctive relief from him is totally without merit. Barringer, however, also contends that this case pr esents an exception to the general rule that federal courts have jurisdict ion over suits against state officials seeking prospective injunctive relief. T hat 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[] specia l 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-11-

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 fail ed to identify any such “special sovereignty interest” in this case but, instead, si mply asserts that a grant of injunctive relief against Barringer would effective ly require the University to comply with federal law. The Court has repeatedly held, however, that suits brought pursuant to Ex parte Youngseeking to end a continuing violation of federal law are not barred by the Eleventh Amendmen t. 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 assu ring the supremacy of that law.”). Thus, the injunctive relief sought by Corn forth against Barringer does not implicate a special sovereignty interest and the Coeur d’Alene exception is inapplicable. Barringer also argues that because the University w ill 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 Co urt 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 like ly have to spend money from the state treasury than if they had been left free to pursue their previous course of8 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 in dividual capacity because the -12- conduct. Such an ancillary effect on the state trea sury is a permissible and often an inevitable consequence of the principle announce d in Ex parte Young[].”) In addition to his Eleventh Amendment arguments, Ba rringer also asserts that Cornforth’s claims against him for injunctive relief should be dismissed because he is not an “employer” as that term is def ined 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). Bar ringer contends that the term “employer” should not be int erpreted to include individual supervisors. He argues that such an interpretationwould render the statute absurd because Barringer, in his individual capacity, is u nable to provide the injunctive relief Cornforth seeks. Our jurisdiction over this interlocutory appeal is strictly confined only to those issues involving the Eleventh Amendment. Bec ause Barringer’s argument does not involve a claim of Eleventh Amendment immu nity, 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 reli ef asserted against Barringer in his individual capacity should be dismissed eith er because Cornforth cannot obtain such relief against Barringer in his individ ual capacity 8 or because the termrelief plaintiff requested could only be obtained a gainst the defendant in his

official capacity). -13- “employer” as used in FMLA should not be interprete d to include individual supervisors. Barringer’s arguments are either foreclosed by Supr eme Court precedent or do not involve the Eleventh Amendment. We hold the re is no Eleventh Amendment bar to federal court jurisdiction over Co rnforth’s claims against Barringer for prospective injunctive relief.
IV. CONCLUSION That portion of the order entered by the district c ourt in which the court denied Barringer’s motion to dismiss the FMLA claim s asserted against him in his individual capacity on Eleventh Amendment grounds i s affirmed . Cornforth’s application to supplement her answer brief is denied because the issues addressed are not properly before this court.