United States District Court, S.D. Ohio, Western Division, Dayton
M. Rose District Judge
L. Ovington United States Magistrate Judge
AND RECOMMENDATION 
John Cutliffe's Complaint asserts claims of sex
discrimination, national-origin 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.
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-Amendment-sovereign immunity on Cutliffe's claim
for monetary damages under the FMLA's self-care
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 opinion) (“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.).
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
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.
Cutliffe's proposed FMLA claim is barred by the Eleventh
Amendment and is otherwise futile. Defendant's Motion to
Amend is therefore well taken.
IS THEREFORE RECOMMENDED THAT:
Motion to Amend Complaint (Doc. #8) be DENIED.
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.
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. ...