Ricardo DIAZ, Plaintiff-Appellant, v. MICHIGAN DEPARTMENT OF CORRECTIONS; Roger Tijernia, in his official and personal capacity; John Prelesnik, Warden, in his official and personal capacity, Defendants-Appellees. Connie Boden, Plaintiff-Appellant, v. Michigan Department of Human Services, a department of the State of Michigan, jointly and severally; Deborah Cole, Defendants-Appellees.
Nos. 11-1075, 11-1213
United States Court of Appeals, Sixth Circuit
Jan. 7, 2013
703 F.3d 956
Every one of these factors is present here. As for the first two: Universal‘s violations were willful, and they prejudiced Allstate by preventing it from obtaining evidence essential to the preparation of its defense. The third factor is also met, notwithstanding Universal‘s argument before us that “there was no explicit warning of dismissal.” There is no magic-words prerequisite to dismissal under
“Every violation of the Rules has consequences; the question is who will bear them. Too often the consequences are borne only by the innocent party, who must live with the violation ... or else pay to brief and argue a motion to compel the offending party to do what the Rules required it to do all along.” R.C. Olmstead, Inc. v. CU Interface, LLC, 606 F.3d 262, 277-78 (6th Cir.2010) (concurring opinion). Here, even Allstate‘s repeated motions, and the court‘s own orders, were not enough to compel Universal to do what the Rules required. Universal‘s conduct violated the rules of civil procedure and common courtesy alike. On this record, “it was not only permissible, but salutary[,]” that the court imposed a sanction of dismissal. Id. at 277.
The district court‘s judgment is affirmed.
ON BRIEF: Joni M. Fixel, Fixel Law Offices, Okemos, Michigan, for Appellants. Michael O. King, Jr., Office of the Michigan Attorney General, Lansing, Michigan, for Appellees.
Before: ROGERS and KETHLEDGE, Circuit Judges; MARBLEY, District Judge.*
ALGENON L. MARBLEY, District Judge.
In Nevada Department of Human Resources v. Hibbs, the Supreme Court held that a state employee may recover money damages in federal court for a state‘s failure to comply with the family-care provision of the Family Medical Leave Act (“FMLA” or “the Act“). 538 U.S. 721, 725 (2003); see generally
In light of these precedents, Appellants Ricardo Diaz and Connie Boden attempt to bring
I.
A.
Appellant Ricardo Diaz was employed by the Michigan Department of Corrections (“MDOC“) when he was diagnosed with heart and abdominal conditions that forced him to take intermittent self-care leave. Diaz alleges he was fired for time and attendance violations after taking various intermittent leaves and informing his manager and the warden at MDOC that, as a result of his condition, it would be difficult to predict when he would need to take time off in the future.
Diaz sued MDOC, his manager, and the warden. He brought causes of action alleging: interference with his FMLA rights against the manager and the warden in their individual capacities in violation of
MDOC, the manager, and the warden filed a motion to dismiss all counts, which was granted by the district court. The district court dismissed counts I and II because the FMLA contains a comprehensive statutory remedial scheme that is more restrictive than the remedies provided under
addressing plaintiff‘s request for reinstatement would necessitate delving into the issue of whether defendants violated plaintiff‘s FMLA rights, whether there is a continuing violation, and whether reinstatement is appropriate. If this Court cannot look back to make a determination on the substantive FMLA issue, it cannot decide, as a prospective matter, if the alleged violation continues. The Eleventh Amendment therefore presents a jurisdictional bar as plaintiff cannot properly invoke the Ex Parte Young exception to Eleventh Amendment sovereign immunity.
09-cv-1109, Doc. 17 at 8-9. Diaz‘s state law claims were also dismissed by the district court, but Diaz does not contest the dismissal of those claims in this appeal.
B.
Appellant Connie Boden was employed by the Michigan Department of Human Services (“MDHS“) when she was placed on stress leave by her doctor. Boden alleges that her supervisor dramatically increased her workload and disciplined her for petty work-related infractions because of the self-care leave she took.
Boden sued MDHS and her supervisor, alleging: interference with her FMLA rights against her supervisor in her individual capacity in violation of
MDHS and the supervisor filed a motion to dismiss all counts, which was granted by the district court. “For reasons stated in detail in the hearing,” the district court concluded that it lacked subject matter jurisdiction over counts I-III, and declined to exercise supplemental jurisdiction over Boden‘s state law claims. 09-cv-1144, Doc. 12 at 1.
II.
We have jurisdiction over this appeal pursuant to
III.
We review a district court‘s decision dismissing a complaint under
IV.
A.
Appellants argue that they have a right to self-care leave under the FMLA, but that Touvell has left them a “right without a remedy.” See Touvell, 422 F.3d at 400. They should be able to use
The FMLA entitles eligible employees to take up to 12 work weeks of unpaid leave per year for: (A) “the birth of a son or daughter in order to care for such son or daughter,” (B) “the placement of a son or daughter with the employee for adoption or foster care,” (C) the care of a “spouse, or a son, daughter, or parent” with a “serious health condition,” and (D) the employee‘s own “serious health condition that makes the employee unable to perform the functions” of their employment.
In Hibbs, the Supreme Court held that Congress could subject states to suit for violations of subparagraph (C), which is commonly referred to as the “family-care” provision. 538 U.S. at 725, 123 S.Ct. 1972; see generally
The Hibbs Court found that the “clarity of Congress’ intent” with respect to the FMLA was “not fairly debatable” because the Act enables employees to sue employers, including public agencies, id.; see
Our Circuit held, thereafter, that the reasoning articulated in Hibbs did not apply in the context of the FMLA‘s self-care provision. Touvell, 422 F.3d at 400, 405. “[W]hile Hibbs found that Congress had adduced sufficient concrete evidence of discrimination by the states regarding the availability and consequences of family-care leave, there is no equivalent evidence that the self-care provision of the FMLA was intended to, or did, target similar discrimination.” Id. at 405. The self-care provision, rather, appears to be “social legislation designed to protect the seriously ill and their families regardless of gender.” Id. Although an “admirable goal, it is not one that permits Congress to abrogate the Eleventh Amendment immunity of the states from private suit for damages.” Id.
After Touvell, the Supreme Court held that suits against states for money damages under the self-care provision are barred by the doctrine of sovereign immunity. Coleman, 132 S.Ct. at 1332. The Court noted that its decision was “[i]n agreement with every Court of Appeals [decision] to have addressed this question,” including Touvell. Id. (citations omitted). Unlike the legislative history of the family-care provision, which indicated that “Congress relied upon evidence of a well-documented pattern of sex-based discrimination in family-leave policies,” id. at 1334 (citing Hibbs, 538 U.S. at 730-31, 123 S.Ct. 1972), the legislative history of the self-care provision “reveals a concern for the economic burdens on the employee and the employee‘s family resulting from illness-related job loss and a concern for discrimination on the basis of illness, not sex.” Id. at 1335 (citing S.Rep. No. 103-3, at 11-12 (1993), reprinted in 1993 U.S.C.C.A.N. 3, 11-12; H.R.Rep. No. 101-28, at 23 (1989)).
Conceding that the self-care provision did offer some women a benefit by allowing them to take leave for pregnancy-related illnesses, the Court nevertheless reasoned that the remedy in the provision “is not congruent and proportional to any identified constitutional violations.” Id. For example, “[a]t the time of the FMLA‘s enactment, ‘ninety-five percent’ of state employees had paid sick-leave plans at work, and ‘ninety-six percent’ had short-term disability protection,” and thus, “state employees presumably could take leave for pregnancy-related illnesses under these policies.” Id. Suits against a state under
While Appellants attempt to bring
Moreover, Appellants do not have a right to sue state officials for monetary damages for alleged violations of the self-care provision of the FMLA. See Coleman, 132 S.Ct. at 1332; Touvell, 422 F.3d at 400. Without the right to bring suit against state officials for monetary damages under the Act‘s self-care provision, Appellants have no rights that can be enforced through
Even if Appellants had the right to seek damages from state officials for alleged violations of the FMLA‘s self-care provision, the Sea Clammers/Rancho Palos Verdes doctrine would prevent Appellants from enforcing that right using a
The Supreme Court held that plaintiffs could not use federal common law or
Similar to the FWPCA and MPRSA, the Telecommunication Act of 1996 (“TCA“), 110 Stat. 56, which was at issue in Rancho Palos Verdes, permits private parties to seek redress through administrative channels and injunctive relief, but not through monetary damages. See Rancho Palos Verdes v. Abrams, 544 U.S. 113, 116, 118, 125 S.Ct. 1453, 161 L.Ed.2d 316 (2005). The Supreme Court held that Congress must have intended for the remedies under the TCA to be the exclusive relief available to plaintiffs alleging a TCA violation because the TCA‘s remedy was more restrictive than the remedy in a
As a result of the Sea Clammers/Rancho Palos Verdes precedent, we must examine whether (1) the FMLA‘s remedial provisions are comprehensive, which would indicate that Congress intended to exclude other remedies; and (2) whether the FMLA‘s remedies are more restrictive than
The FMLA‘s remedial provisions are comprehensive on their face. See
It is apparent from the plain language of the FMLA remedial provisions that Congress intended to exclude other remedies. The FMLA therefore precludes resort to
The district court in Diaz‘s case dismissed Diaz‘s FMLA claims on the basis that a
Appellants’ purpose and logic argument is unpersuasive because, as explained supra, they do not have the right to bring suit for monetary damages against their state officials under the self-care provision of the FMLA. As explained in Coleman, if Congress wants to abrogate states’ immunity under the self-care provision, it must do so through a valid exercise of its power under § 5 of the Fourteenth Amendment. 132 S.Ct. at 1338. Appellants may not circumvent sovereign immunity by bringing
B.
Appellants argue that they can seek prospective relief against state officials, in their official capacity, in the form of reinstatement to their positions, through Ex parte Young. Appellants contend that termination in retaliation for taking self-care leave under the FMLA is an ongoing violation and reinstatement into their positions is prospective relief.
Our examination of the record reveals that only Appellant Diaz was terminated and seeks reinstatement. Appellant Boden‘s amended complaint contains no allegations that she was terminated in retaliation for taking self-care leave. Boden did seek prospective relief in the form of an injunction for further acts of discrimination and retaliation (count III), but she does not make any arguments on appeal related to count III. We therefore address only Diaz‘s argument here.6
The requested reinstatement remedy forces us to examine the extent to which the Ex parte Young doctrine saves a FMLA claim for prospective relief from the Eleventh Amendment bar. While on its face the Eleventh Amendment bars “any suit in law or equity, commenced or prosecuted against one of the United States,” the Supreme Court announced an exception to Eleventh Amendment sovereign immunity in Ex parte Young for claims for injunctive relief against individual state officials in their official capacities. See 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). In order to fall within the Ex parte Young exception, a claim must seek prospective relief to end a continuing violation of federal law. See MacDonald v. Vill. of Northport, Mich., 164 F.3d 964, 970-72 (6th Cir.1999). Retroactive relief is barred by the Eleventh Amendment. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 103, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). Importantly, in Carten v. Kent State University, this Circuit held that “claims for reinstatement are prospective in nature and appropriate subjects for Ex parte Young actions.” 282 F.3d 391, 396 (6th Cir.2002) (citing Turker v. Ohio Dep‘t. of Rehab. & Corrs., 157 F.3d 453, 459 (6th Cir.1998)).
The FMLA‘s remedial provisions state that an employer who violates the FMLA may be liable to an eligible employee “for such equitable relief as may be appropriate, including employment, reinstatement, and promotion.”
Notably, the holdings in both Touvell and Coleman7 are narrower than both parties acknowledge. For example, Appellees argue that: “Appellants have no rights derived from FMLA. This Court has held that the self-care provisions of FMLA are unconstitutional as applied to the states.” Appellee Br. at 17. This characterization of precedent is not accurate. The Supreme Court and this Circuit barred suits for damages only, not for equitable relief. Coleman, 132 S.Ct. at 1338 (holding that Congress did not validly abrogate states’ sovereign immunity from suits for money damages in enacting FMLA‘s self-care provision); Touvell, 422 F.3d at 400 (“[W]e agree ... Hibbs does not apply to the self-care provision of the FMLA, and that private suits for damages may not be brought against states for alleged violations of the Act arising from claimed entitlement to leave under § 2612(a)(1)(D)“) (emphasis added). FMLA‘s provision providing a right of action against public agencies for equitable relief has not, therefore, been deemed unconstitutional. See
The district court dismissed Diaz‘s claim for reinstatement, reasoning that “[i]f this Court cannot look back to make a determination on the substantive FMLA issue, it cannot decide, as a prospective matter, if the alleged violation continues.” (09-cv-1109, Doc. 17 at 8-9.) To support its reasoning, the district court quoted Verizon Maryland Inc. v. Public Service Commission of Maryland, in which the Supreme Court explained that “a court need only conduct a straightforward inquiry into whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective” to determine whether the Ex parte Young doctrine avoids an Eleventh Amendment bar to suit. 535 U.S. 635, 645, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002) (internal citations and quotation marks omitted).
The district court‘s reasoning is flawed, as is Appellees’ unsupported contention that “any inquiry into whether there is a continuing violation of a federal law would require the trial court to examine the merits of Appellants’ alleged FMLA violations” and “is barred by the Eleventh Amendment.” Appellee Br. at 18. The Eleventh Amendment bars a plaintiff from seeking retrospective relief against a state official in his or her official capacity, but it does not bar the district court from examining the allegations to determine whether there is an ongoing violation of federal law. This Court has held that a claim for reinstatement is prospective relief, Carten, 282 F.3d at 396, and, neither Touvell nor Coleman bars this inquiry.
In Seminole Tribe of Florida v. Florida, the Supreme Court held that, “where Congress has prescribed a detailed remedial scheme for the enforcement against a state of a statutorily created right, a court should hesitate before casting aside those limitations and permitting an action against a state officer based upon Ex parte Young.” 517 U.S. 44, 74, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). Appellees argue that Diaz‘s claim for reinstatement is barred by Seminole Tribe.
The Seminole Tribe precedent does not prevent Diaz from bringing his claim for reinstatement. The Seminole Tribe Court explained that, although the Supreme Court often found “federal jurisdiction over a suit against a state official when that suit [sought] only prospective injunctive relief in order to ‘end a continuing violation of federal law,‘” the situation presented in Seminole Tribe was “sufficiently different from that giving rise to the traditional Ex parte Young action so as to preclude the availability of that doctrine.” Id. at 73, 116 S.Ct. 1114 (citing Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985)). The Court‘s holding that Ex parte Young did not apply was based on specific language in the Indian Gaming Regulatory Act,
For example, under
The FMLA‘s remedial provision simply states that an employer who violates the FMLA shall be liable for “for such equitable relief as may be appropriate, including employment, reinstatement, and promotion.” See
Thus, the district court erred when it dismissed Diaz‘s claim for equitable, prospective relief in the form of reinstatement. The appropriate inquiry on remand is whether Diaz sufficiently alleged an ongoing violation of federal law to maintain his equitable claim.
V. CONCLUSION
We AFFIRM the district court‘s decision dismissing all of Boden‘s claims. We also AFFIRM the district court‘s decision dismissing Diaz‘s FMLA claims brought under