Crugher v. Prelesnik

761 F.3d 610

Corey S. CRUGHER, an individual, Plaintiff–Appellant,

v.John PRELESNIK, Warden, in his official and individual capacity, Defendant–Appellee.

No. 13–2425.

United States Court of Appeals, Sixth Circuit.

Argued: May 8, 2014.

Decided and Filed: Aug. 1, 2014.

ARGUED:Collin H. Nyeholt, Fixel Law Offices, PLLC, Okemos, Michigan, for Appellant. Jeanmarie Miller, Office of the Michigan Attorney General, Lansing, Michigan, for Appellee ON BRIEF:Collin H. Nyeholt, Joni M. Fixel, Fixel Law Offices, PLLC, Okemos, Michigan, for Appellant. Jeanmarie Miller, Office of the Michigan Attorney General, Lansing, Michigan, for Appellee.

Before: BOGGS and CLAY, Circuit Judges; and COHN, District Judge. ^*

COHN, D.J., delivered the opinion of the court, in which BOGGS, J., joined. CLAY, J. (pp. 618–22), delivered a separate dissenting opinion.

OPINION

AVERN COHN, Senior District Judge.

This is an employment discrimination case. Plaintiff/Appellant Corey Crugher (“Crugher”), a Michigan Department of Corrections (“MDOC”) employee working at the Ionia Correctional Facility (“ICF”), brought this action against Defendant/Appellee John Prelesnik (“Prelesnik”), the warden of the ICF, claiming that Crugher was retaliated against, subjected to harassment and intimidation, and ultimately terminated after he took time off under the self-care provision of the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2612(a)(1)(D). As a form of relief, Crugher sought reinstatement at the ICF. The district court granted Prelesnik's motion to dismiss under Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure on the grounds that the claim is barred by sovereign immunity or, alternatively, is untimely under the two-year limitations period in the FMLA. Crugher appeals.

This appeal requires us to decide whether an action by a state employee seeking prospective injunctive relief (reinstatement) against a state official under the FMLA's self-care provision applies the limitations period contained in the FMLA. We hold that it does. We also agree with the district court that Crugher failed to state a willful violation of the FMLA, and that allowing Crugher to amend his complaint to allege willfulness—to take advantage of an extended three-year limitations period—would be futile. Therefore, we affirm.

I.

A.

On February 27, 1994, Crugher began employment for the MDOC as a corrections officer assigned to the Saginaw Mound Correctional Facility in Detroit, Michigan. Five years later, in 1999, Crugher developed irritable-bowel syndrome (“IBS”) and generalized anxiety disorder (“GAD”). As a result of these chronic medical conditions, Crugher suffered abdominal pain, diarrhea, bleeding, cramping, and fatigue. Crugher's “flare-ups” lasted 24 hours once every six weeks, and it was necessary for him to miss work during a flare-up.

Crugher excelled as a corrections officer despite his medical conditions. He took time off and intermittent FMLA leave when necessary.

In November 2009, Crugher was transferred to ICF. While employed at ICF, Crugher continued to take as-needed medical leaves pursuant to the self-care provision of the FMLA.

Crugher says he was subjected to harassment and intimidation at ICF because he took FMLA leave. For example, on February 8, 2010, Crugher was given a written counseling memorandum “for incurring lost time in four consecutive pay periods,” specifically related to his “utilization of sick leave.” When using sick leave in the future, Crugher was “instructed to provide medical documentation” from his physician including “diagnosis and prognosis, the reason [he] could not work, and the expected date of return to work.”

On April 23, 2010, Crugher was placed on “interim rating,” where his performance was closely monitored for 180 days, because his “time and attendance issues” did not improve. Crugher was instructed that, “[i]n the future [his] time and attendance will be closely monitored for unscheduled absences.” Crugher was further reminded of the requirement to provide medical documentation “for each instance of sick-leave usage per the conditions outlined in the February 8, 2010 counseling memo.” Crugher's follow-up rating at the conclusion of the 180 days commended him for having “good time and attendance.”

In a subsequent follow-up rating sometime after October 20, 2010, ¹ Crugher was placed back on interim rating for a period of 180 days. Crugher was criticized for his continuous abuse of “time and attendance” from August 2010 through October 2010. Crugher was warned that “[f]ailure to correct these deficiencies will result in further disciplinary action up to and including dismissal.” ²

On November 17, 2010, Crugher presented to his doctor with severe abdominal pain, diarrhea, bleeding, cramping, and fatigue. Following the doctor's appointment, Crugher submitted a request for FMLA leave. He was approved for intermittent FMLA leave from November 22, 2010 through May 21, 2011.

Subsequent to being approved for intermittent FMLA leave, on November 23, 2010, Crugher was notified that he was to attend a “Performance Rating Conference” because of “non-compliance with the DOC Employee Handbook, Employment Requirements, 3. Use of Leave.” ³ On January 11, 2011, Crugher was discharged.

B.

On January 14, 2011, Crugher's union filed a grievance on his behalf claiming that he was wrongfully terminated. It was ultimately determined that Crugher's termination was justified because he “continued to liquidate sick leave in conjunction with regular days off and holidays. His unsatisfactory service occurred while on a second unsatisfactory service rating and a last chance agreement.”

On April 16, 2013, after exhausting his administrative remedies, Crugher filed a one-count complaint claiming that he was terminated because of his protected FMLA leave and seeking reinstatement to his position. Crugher relied on Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), and Diaz v. Michigan Department of Corrections, 703 F.3d 956 (6th Cir.2013).

As noted above, the district court dismissed the action on the grounds that Prelesnik was not the proper defendant because he did not have anything to do with the alleged violation of Crugher's rights under the FMLA.⁴ As such, the district court reasoned that the state was the real party in interest and that Eleventh Amendment sovereign immunity precluded Crugher's claim. Alternatively, the district court held that Crugher's claim was barred by the FMLA's two-year statute-of-limitations period.

II.

Prelesnik's motion to dismiss was filed under Federal Rules of Civil Procedure 12(b)(1) and (6).

A.

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) “may either attack the claim of jurisdiction on its face or it can attack the factual basis of jurisdiction.” Golden v. Gorno Bros., Inc., 410 F.3d 879, 881 (6th Cir.2005). Where, as here, the district court did not resolve any factual disputes, “our review of the district court's application of the law to the facts is de novo.” Id.

B.

A district court's dismissal of a plaintiff's complaint under Federal Rule of Civil Procedure 12(b)(6) is also reviewed de novo. Lindsay v. Yates, 498 F.3d 434, 438 (6th Cir.2007). The complaint is construed in the light most favorable to the plaintiff, and we accept the complaint's allegations as true, drawing all reasonable inferences in favor of the plaintiff. Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir.2007) (citing Evans–Marshall v. Bd. of Educ., 428 F.3d 223, 228 (6th Cir.2005)). Ultimately, “[t]he defendant has the burden of showing that the plaintiff has failed to state a claim for relief.” Id. (citation omitted).

III.

Under 29 U.S.C. § 2617(c)(1), FMLA actions must be brought “not later than 2 years after the date of the last event constituting the alleged violation for which the action is brought.” This period is extended to three years if the plaintiff alleges a “willful violation” of the FMLA. § 2617(c)(2). Crugher admits that the “last event constituting the alleged violation for which the action is brought” is his termination from employment that occurred on January 11, 2011. Crugher did not file this action until April 16, 2013, over three months past the FMLA's two-year limitations period.

Crugher argues that the FMLA's statute-of-limitations period does not apply because his claim is brought “under Ex parte Young.” ⁵ Appellant Br. at 28. Alternatively, Crugher argues that his claim falls within the FMLA's three-year limitations period for willful violations.

A.

The self-care provision of the FMLA allows an employee “a total of 12 workweeks of leave during any 12–month period” for, inter alia, “... a serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). To enforce a violation of the self-care provision, an employee may bring an action for damages, id. at § 2617(a)(1)(A), or for equitable relief “including employment, reinstatement, and promotion,” id. at § 2617(a)(1)(B).

The Supreme Court, however, has determined that the FMLA's self-care provision is not enforceable in a private action seeking money damages against Coleman v. Court of Appeals of Md., ––– U.S. ––––, 132 S.Ct. 1327, 1332, 182 L.Ed.2d 296 (2012).⁶ We have since held that a state employee is permitted to seek prospective relief against a state official for violating the self-care provision as long as the employee sufficiently alleges “an ongoing violation of federal law to maintain his equitable claim.” Diaz v. Mich. Dep't of Corrs., 703 F.3d 956, 966 (6th Cir.2013).

Crugher argues that, since he is bringing an “ Ex parte Young claim,” ⁷ the FMLA's two-year statute of limitations period does not apply to his claim. He states that “the remedies available in an action for prospective injunctive relief, pursuant to Ex parte Young, will not be the same as an action under the underlying federal claim.” Appellant Br. at 28–29....