Cutcliffe v. Wright State University

Filing 10

REPORT AND RECOMMENDATION: 8 Plaintiff's Motion to Amend Complaint be DENIED. Objections to R&R due by 1/23/2018. Signed by Magistrate Judge Sharon L. Ovington on 1-9-18. (mcm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON

:
:
Plaintiff/Counterclaim Defendant, :
:
vs.
:
:
WRIGHT STATE UNIVERSITY,
:
Defendant/Counterclaim Plaintiff. :
:
JOHN CUTLIFFE,

Case No. 3:17-cv-00222
District Judge Thomas M. Rose
Magistrate Judge Sharon L. Ovington

REPORT AND RECOMMENDATION1
Plaintiff John Cutliffe’s Complaint asserts claims of sex discrimination, nationalorigin discrimination, and retaliation under Title VII of the Civil Rights Act of 1963, as
amended, 42 U.S.C. § 2000e-2, et seq. He also asserts a claim of constructive discharge.
Defendant Wright State University is his former employer.
Cutliffe presently seeks to amend his Complaint by adding a claim that Defendant
interfered with his rights under the Family and Medical Leave Act (FMLA) of 1993, as
amended, 29 U.S.C. § 2601, et seq. Defendant contends that Cutliffe should not be
granted leave to amend his Complaint because his proposed FMLA claim is futile.
Defendant reasons that it is a state instrumentality entitled to Eleventh-Amendmentsovereign immunity on Cutliffe’s claim for monetary damages under the FMLA’s selfcare provision.

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Attached hereto is NOTICE to the parties regarding objections to this Report and Recommendations.

Three foundational observations begin the analysis. First, although leave to
amend a pleading is freely granted as justice requires, see Fed. R. Civ. P. 15(a)(2), a
proposed amended complaint may be rejected as futile when its added claim would not
withstand a motion to dismiss under Fed. R. Civ. P. 12(b)(6). Kreipke v. Wayne State
University, 807 F.3d 768, 782 (2015); see Glazer v. Chase Home Finance LLC, 704 F.3d
453, 458 (6th Cir. 2013). Second, Cultliffe’s proposed FMLA-interference claim
involves his request for leave under the FMLA’s self-care provision (as opposed to its
family-care provisions). See generally Coleman v. Court of Appeals of Maryland, 566
U.S. 30, 33, 132 S.Ct. 1327, 1332 (2012) (plurality opinion2) (“The provision at issue
requires employers, including state employers, to grant unpaid leave for self care for a
serious medical condition, provided other statutory requisites are met….”) (citing 29
U.S.C. § 2612(a)(1)(d)). Third, Defendant is an arm or alter ego of the State of Ohio.
Dvorak v. Wright State Univ., No. 3:96cv109, 1997 WL 1764779, *8 (S.D. Ohio 1997)
(Rice, D.J.).
Because Defendant is an arm or alter ego of the State of Ohio, the Eleventh
Amendment extends sovereign immunity to shield it from Cutliffe’s claim for monetary
damages under the FMLA’s self-care provisions. See Coleman, 566 U.S. at 43-44; see
also Crugher v. Prelesnik, 761 F.3d 610, 614 (6th Cir. 2014); Diaz v. Michigan Dept. of
Corrections, 703 F.3d 956, 961-62 (6th Cir. 2013). But, sovereign immunity does not
apply to FMLA claims seeking prospective equitable relief, such as reinstatement or

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Four Justices concurred in the opinion; one Justice concurred in the Judgment. Justices Thomas, Scalia,
Ginsburg, Breyer, Sotomayor, and Kagan viewed Coleman as a plurality opinion. 566 U.S. at 44, 46-47.

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promotion, against a state official or entity “as long as the employee sufficiently alleges
‘an ongoing violation of federal law to maintain his equitable claim.’” Crugher, 761 F.3d
at 614 (quoting, in part, Diaz, 703 F.3d at 966). Defendant does not acknowledge this
limited exception to the application of sovereign immunity in FMLA cases, and Cutliffe
chose not to file a Reply, leaving the Court without the benefits that normally flow from
adversarial arguments. Forging on despite this reveals that Cutliffe’s proposed amended
complaint, in its prayer for relief, seeks reinstatement. (Doc. #8, PageID #363). But, this
does not end the matter because his proposed amended complaint alleges FMLA
violations that occurred before he was no longer employed by Defendant. As a result, the
proposed amended complaint fails to allege ongoing FMLA violations, as might occur,
for example, when a current-employee plaintiff seeks a promotion as a remedy for a
violation of FMLA’s interference or retaliation provisions.3
Accordingly, Cutliffe’s proposed FMLA claim is barred by the Eleventh
Amendment and is otherwise futile. Defendant’s Motion to Amend is therefore well
taken.
IT IS THEREFORE RECOMMENDED THAT:
Plaintiff’s Motion to Amend Complaint (Doc. #8) be DENIED.

January 9, 2018

s/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge

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Cutliffe may still seek reinstatement as a remedy for violations of Title VII. See 42 U.S.C. § 2000e5(g)(1).

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days after
being served with this Report and Recommendations. Such objections shall specify the
portions of the Report objected to and shall be accompanied by a memorandum of law in
support of the objections. If the Report and Recommendation is based in whole or in part
upon matters occurring of record at an oral hearing, the objecting party shall promptly
arrange for the transcription of the record, or such portions of it as all parties may agree
upon or the Magistrate Judge deems sufficient, unless the assigned District Judge
otherwise directs. A party may respond to another party’s objections within
FOURTEEN days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947,
949-50 (6th Cir. 1981).

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