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 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.
*Honorable Sam A. Crow, District Judge, United States District Court for

the District of Kansas, sitting by designation.

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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
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).

2Barringer 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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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
3Although the University is listed as an appellant in this case, only

Barringer’s claim of entitlement to Eleventh Amendment immunity is properly

before this court.

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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
4The caption of Cornforth’s complaint simply names “Bill Barringer, an

individual,” as a defendant. 

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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
5The 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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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
6

See Okla. Stat. Ann. tit. 51, § 162. 

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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 violations6

 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
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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
7On 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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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
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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
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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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 capacity8

 or because the term
relief plaintiff requested could only be obtained against the defendant in his

official capacity). 

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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.