Crugher v. Prelesnik

Filing 10

OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

COREY S. CRUGHER,
Plaintiff,
File No. 1:13-CV-416
v.
HON. ROBERT HOLMES BELL
WARDEN JOHN PRELESNIK, in his
Official and Individual capacity,
Defendant.
/
OPINION
This action alleging a violation of the Family Medical Leave Act is before the Court
on Defendant’s motion to dismiss. (Dkt. No. 5.) For the reasons that follow, the motion will
be granted.
I.
Plaintiff Corey S. Crugher began working for the Michigan Department of Corrections
(“MDOC”) in 1994. (Compl. ¶ 8.) In 1999, while employed at the Saginaw Correctional
Facility, Plaintiff developed a chronic medical condition identified as IBS and GAD disorder.
(Id. at ¶¶ 9-10.) This condition causes episodic flare-ups which prevent Plaintiff from
performing his normal job functions. (Id. at ¶ 10.) On March 6, 2007, Plaintiff was

approved for 30 days of intermittent FMLA leave to care for his medical condition.1 (Compl.
¶ 12; Compl. Ex. B.)
In November 2009, Plaintiff was transferred to the Ionia Maximum Correctional
Facility (“Ionia Max”). (Compl. ¶ 15.) Defendant John Prelesnik is the warden at Ionia
Max. (Id. at ¶ 3.) While employed at Ionia Max, Plaintiff continued to suffer from his
chronic medical condition and continued to take intermittent leave. (Id.at ¶ 16.) Plaintiff
was subjected to harassment and intimidation because of his periodic medical leaves. (Id.
at ¶ 17.) On February 10, 2010, Plaintiff was issued a written counseling memorandum
related to his use of sick time. (Id. at ¶ 18.) On April 15, 2010, Human Resources Manager
Constance Y. Partee advised Plaintiff that he was being placed on an interim rating for 90
days due to non-compliance with leave policies. (Id. at ¶ 19.) The Interim Employee Rating,
authored by Captain Lynn Sandborn, addressed Plaintiff’s time and attendance, and required
Plaintiff to provide medical documentation for each instance of sick-leave usage. (Id. at
¶ 20; Compl. Ex. E.) On September 17, 2010, Captain Sandborn commended Plaintiff for
adhering to the instructions of the Interim Rating. (Compl. ¶ 21; Compl. Ex. F.) In October
2010, Sergeant B. Wenzel drafted a second Interim Employee Rating stating that Plaintiff

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The FMLA entitles eligible employees to take up to 12 work-weeks of unpaid leave
per year for the employee’s own “serious health condition that makes the employee unable
to perform the functions” of his employment. 29 U.S.C. § 2612(a)(1)(D). Subsection (D)
is commonly referred to as the “self-care” provision. Diaz v. Mich. Dep’t of Corr., 703 F.3d
956, 960 (6th Cir. 2013).

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was placed back on interim rating for a period of 180 days because he had abused the time
and attendance policy by using sick leave in conjunction with regular days off and weekends
on 8 occasions between August 13, 2010, and October 20, 2010. (Compl. ¶ 22; Compl. Ex.
G.) This document was not presented to Plaintiff until after his termination and Plaintiff
questions whether he was ever actually placed on this second Interim Rating. (Compl. ¶¶
23, 27.)
On November 17, 2010, Plaintiff’s physician signed a certification of employee’s
serious health condition. (Id. at ¶ 24.) On November 22, 2010, Plaintiff was approved for
intermittent medical leave from November 22, 2010, through May 21, 2011. (Id. at ¶ 25;
Compl. Ex. I.)
On November 23, 2010, Partee notified Plaintiff of a Performance Rating Conference
before Warden Willie O. Smith and Captain Sandborn, on November 30, 2010, regarding an
alleged violation of the leave policies. (Compl. ¶ 26; Compl. Ex. J.) The notice references
DS#02-24-0029-10. (Compl. Ex. J.) On December 31, 2010, Captain Sandborn signed
Plaintiff’s annual Performance Management and Competency Rating Form and indicated that
Plaintiff “meets expectations.” (Compl. ¶ 28; Compl. Ex. K.) On January 11, 2011, Plaintiff
was notified in writing that the final disposition of the action resulting from his performance
conference was his separation from employment. (Compl. ¶ 29; Compl. Ex. L.) Plaintiff
was dismissed from State service “due to the outcome of DS-02-24-0029-10.” (Compl. Ex.
L.) Plaintiff grieved his termination through Step 3, contending that he was wrongfully

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discharged. His grievance was denied. (Compl. ¶¶ 30, 32; Compl. Ex. O.) Plaintiff’s union
decided not to take Plaintiff’s grievance to arbitration. (Compl. ¶ 36; Compl. Ex. P.)
Plaintiff alleges that he was terminated in retaliation for his exercise of his right to
intermittent medical leave guaranteed by the FMLA. (Compl. ¶ 47.)
II.
Defendant Warden John Prelesnik has moved to dismiss Plaintiff’s complaint pursuant
to Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure for lack of jurisdiction and
for failure to state a claim on which relief can be granted.
A. Jurisdiction
Defendant contends that this case is barred by sovereign immunity because the State
of Michigan is the real party at interest, and the Ex parte Young exception to sovereign
immunity does not apply because Plaintiff has not alleged any violation of his rights by
Defendant Prelesnik.
In Coleman v. Court of Appeals of Maryland, 132 S. Ct. 1327 (2012), the Supreme
Court determined that Congress did not abrogate the states’ Eleventh Amendment immunity
from suits for damages relating to the self-care provisions of the FMLA. Id. at 1338.
However, a state employee who has been terminated in violation of his right to FMLA
intermittent medical leave is not barred from bringing an action for prospective injunctive
relief such as reinstatement. Diaz v. Mich. Dep’t of Corr., 703 F.3d 956, 966 (6th Cir.
2013).

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Plaintiff contends that because he is only suing for prospective injunctive relief for
a continuing violation of the FMLA, his suit is authorized by Diaz. He contends that the
proper defendant in such a suit is not the MDOC official who fired him, but the official with
authority to re-hire him. In this case, he contends that the proper defendant is John Prelesnik,
the Warden of the Ionia Max Correctional Facility from which Plaintiff was terminated.
Although there is no dispute that Diaz authorizes an action for reinstatement for
violation of the FMLA, Diaz does not address who the proper defendant is in such an action.
“The Eleventh Amendment bars a suit against state officials when ‘the state is the real,
substantial party in interest.’” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101
(1984) (quoting Ford Motor Co. v. Dep’t of Treas., 323 U.S. 459, 464 (1945)). The Supreme
Court carved out an exception to the States’ constitutional immunity from suit in Ex parte
Young, 209 U.S. 123, 159-60 (1908). Ernst v. Rising, 427 F.3d 351, 367 (6th Cir. 2005). The
Ex parte Young doctrine permits federal courts to enjoin state officials from the future
enforcement of state legislation that violates federal law. Id.
Plaintiff’s contention that the proper defendant under Ex parte Young is not the state
official who caused the violation, but the state official who has authority to end the
continuing violation, lacks merit. As noted in Pennhurst, the theory of Ex parte Young was
that “an unconstitutional enactment is ‘void’ and therefore does not ‘impart to [the officer]
any immunity from responsibility to the supreme authority of the United States.’”
Pennhurst, 465 U.S. at 102 (quoting Ex parte Young, 209 U.S. at 160). “Since the State

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could not authorize the action, the officer was ‘stripped of his official or representative
character and [was] subjected to the consequences of his official conduct.’” Id. (quoting Ex
parte Young, 209 U.S. at 160). Because the rationale for the Ex parte Young exception is that
a state officer who violates federal law is stripped of his official character and thereby loses
the cloak of state immunity, it is clear that the proper defendant in an action brought pursuant
to the Ex parte Young exception to sovereign immunity is the state officer who allegedly
violated federal law.
The case law supports a requirement that an action authorized by Ex parte Young must
name the state official who allegedly violated the law. See, e.g., Hafer v. Melo, 502 U.S. 21,
30 (1991) (“[S]ince Ex parte Young . . . it has been settled that the Eleventh Amendment
provides no shield for a state official confronted by a claim that he had deprived another of
a federal right under the color of state law.”); Angel v. Kentucky, 314 F.3d 262, 265 (6th Cir.
2002) (citing Ex parte Young for the proposition that “in order to sue an officer of the state
to enjoin the enforcement of an act alleged to be unconstitutional, the officer must be
connected with the enforcement of the act”); Westside Mothers v. Haveman, 289 F.3d 852,
860 (6th Cir. 2002) (“Under the doctrine developed in Ex parte Young and its progeny, a suit
that claims that a state official’s actions violate the constitution or federal law is not deemed
a suit against the state, and so barred by sovereign immunity, so long as the state official is
the named defendant and the relief sought is only equitable and prospective.”).
Plaintiff does not contend that Defendant Prelesnik was involved in the violation of

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his rights under the FMLA. Plaintiff merely asserts that Defendant Prelesnik, as the warden
of Ionia Max, is the individual who can be enjoined to rehire Plaintiff. Because Plaintiff has
not alleged a causal connection between Defendant Preslesnik and the wrong alleged to have
been committed, Plaintiff’s claim is not authorized by Ex parte Young. Plaintiff’s claim is
more properly viewed as a claim against the State, and such a claim is clearly barred by the
Eleventh Amendment.
Plaintiff has requested an opportunity to conduct discovery so that he can properly
name the defendant who has authority to rehire him. As noted above, the proper defendant
to this lawsuit is the individual alleged to have committed the violation of federal law.
Therefore, granting Plaintiff leave to amend his complaint after the close of discovery to
name the individual who has the power to reinstate Plaintiff would be futile. The Court
concludes that Plaintiff’s complaint is subject to dismissal for lack of jurisdiction and/or for
failure to state a claim against Defendant Prelesnik.
B. Statute of Limitations
Even if Plaintiff’s complaint were viable under Ex parte Young, it would nevertheless
be barred by the applicable statute of limitations.
Under the FMLA, an employee has two years within which to file an FMLA claim.
29 U.S.C. § 2617(c)(1). The Act states that “an action may be brought under this section not
later than 2 years after the date of the last event constituting the alleged violation for which
the action is brought.” Id. Plaintiff was terminated on January 11, 2011, and did not file this

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action until April 16, 2013, more than three months after the expiration of the limitations
period.
Plaintiff contends that the FMLA limitations period is not applicable to this case
because this is not an FMLA enforcement action, but an Ex Parte Young action for equitable
relief enjoining the continuing violation of the right conferred by the FMLA statute.
According to Plaintiff, there is no federal limitations period for Ex parte Young actions, so
the Court must look to the limitations period for bringing a comparable action for injunctive
relief under Michigan law. Michigan does not have a specific limitations period that applies
to actions for injunctive relief. Plaintiff contends that in this situation, the applicable
limitations period is the catch-all six-year period. See Mich. Comp. Laws § 600.5813
(providing that “[a]ll other personal actions shall be commenced within the period of 6 years
after the claims accrue and not afterwards unless a different period is stated in the statutes”).
Plaintiff’s argument lacks merit. Ex parte Young does not create a new cause of
action with its own statute of limitations. It simply provides a limited exception to sovereign
immunity. To be successful in an Ex parte Young action, a plaintiff must prove the
underlying violation of federal law. Plaintiff’s cause of action is his claim that Defendant
violated the FMLA. Accordingly, the FMLA statute of limitations rather than a state statute
of limitations for injunctive relief applies.
Plaintiff contends, in the alternative, that even if this case is governed by the FMLA
limitations period, Plaintiff’s claim is not barred because the circumstances alleged support

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a claim that Plaintiff’s termination was willful and that the FMLA’s three-year limitations
period for willful violations applies. See 29 U.S.C. § 2617(c)(2) (“In the case of such action
brought for a willful violation of section 2615 of this title, such action may be brought within
3 years of the date of the last event constituting the alleged violation for which such action
is brought.”)
“An employer commits a willful violation of the FMLA when it acts with knowledge
that its conduct is prohibited by the FMLA or with reckless disregard of the FMLA’s
requirements.” Ricco v. Potter, 377 F.3d 599, 602 (6th Cir. 2004); see also McLaughlin v.
Richland Shoe Co., 486 U.S. 128, 132 (1988) (noting that Congress intended to draw a
“significant distinction” between ordinary violations and willful violations).
Plaintiff contends that the specific facts alleged in his complaint are sufficient to allow
a reasonable trier of fact to determine that the termination was a “willful” violation. The
Court disagrees.
Plaintiff’s complaint neither uses the word “willful” nor does it allege any facts that
would show willful conduct. Failure to plead “willfulness” in a complaint properly subjects
this claim to dismissal under Fed. R. Civ. P. 12(b)(6). See Oates v. Target Corp., No. 11CV-14837, 2012 WL 4513723, at *2 n.1 (E.D. Mich. 2012) (holding that alleging “willful”
violation for the first time in response to a motion to dismiss to be insufficient since the
plaintiff did not plead the allegation in her amended complaint); see also Rowlett v.Michigan
Bell, No. 1:11–CV–1269, 2012 WL 6932328, at *4 (W.D. Mich. 2012) (Carmody, M.J. )

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(recommending dismissal of Plaintiff’s complaint for failure to allege sufficient factual
matter to support a “willful” violation). Plaintiff did not plead a willful violation that would
trigger the three-year statute of limitations.
Although Plaintiff has requested leave to file an amended complaint to allege that
Defendant acted “willfully,” amending the complaint as suggested by Plaintiff would be
futile as Plaintiff is not suggesting that he would allege that Defendant knew that his conduct
was prohibited by the FMLA, or that he acted with reckless disregard of the FMLA’s
requirements.
In conclusion, because Plaintiff’s claim against Defendant Prelesnik is barred by
sovereign immunity, and, alternatively, is barred by the statute of limitations, and because
Plaintiff’s proposed amendments would be futile, Defendant’s motion to dismiss will be
granted.
An order consistent with this opinion will be entered.

Dated: October 10, 2013

/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE

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