Opinion
CASE NO. 4:21CV111
2021-06-25
Sabrina BOLEN, Plaintiff, v. The Honorable Theresa DELLICK, Defendant.
Christopher J. Lalak, Doston B. Jones, Jeffrey J. Moyle, Nilges Draher, Cleveland, OH, for Plaintiff. Benjamin D. Humphrey, Isaac Wiles Burkholder & Teetor, Columbus, OH, for Defendant.
Christopher J. Lalak, Doston B. Jones, Jeffrey J. Moyle, Nilges Draher, Cleveland, OH, for Plaintiff.
Benjamin D. Humphrey, Isaac Wiles Burkholder & Teetor, Columbus, OH, for Defendant.
ORDER
[Resolving ECF No. 14 ]
Benita Y. Pearson, United States District Judge
Pending before the Court is Defendant's fully briefed Motion for Judgment on the Pleadings. ECF Nos. 14, 18, 19. For the foregoing reasons, the motion is denied as to the Family and Medical Leave Act ("FMLA") claims and granted as to the state law claim.
In future briefing, counsel shall not relegate basic citations, such as single case and statutory citations, to the footnotes. Footnotes are appropriately utilized for string-cites or substantive, but tangential, argument.
Background
"Plaintiff was employed by Defendant as a Licensed Practical Nurse in the Mahoning County Juvenile Detention Center ("JDC") from approximately April 2016 until her termination on or about August 31, 2020." ECF No. 1 at PageID #: 2. "At the time of Plaintiff's termination, she was approximately seven months pregnant and was planning to go on a leave of absence under the Family [and] Medical Leave Act for the birth of her child." Id. at PageID #: 3. Prior to her termination, "Plaintiff informed Defendant of her need for leave under the FMLA for the birth of her child." Id. at PageID #: 4. The other circumstances surrounding Plaintiff's termination are not relevant to the pending motion.
Plaintiff brings two claims under the FMLA, alleging retaliation and unlawful interference, and a third claim under state law. Defendant moves to dismiss all claims, asserting that the Eleventh Amendment shields her from liability under the three causes of action.
Standard of Review
The standard for deciding a motion for judgment on the pleadings under Fed. R. Civ. P. 12(c) is indistinguishable from the standard for dismissals based on failure to state a claim under Fed. R. Civ. P. 12(b)(6) . U.S. ex rel. Bledsoe v. Cmty. Health Sys., Inc. , 342 F.3d 634, 643 (6th Cir. 2003) ; Ziegler v. IBP Hog Mkt., Inc. , 249 F.3d 509, 511–12 (6th Cir. 2001) (citing Mixon v. State of Ohio , 193 F.3d 389, 399–400 (6th Cir. 1999) ). In deciding a motion to dismiss pursuant to Rule 12(b)(6), or a motion for judgment on the pleadings under Rule 12(c), the Court must take all well-pleaded allegations in the complaint as true and construe those allegations in a light most favorable to the plaintiff. Erickson v. Pardus , 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (citations omitted). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).
The Eleventh Amendment
Under the Eleventh Amendment, federal courts generally lack the authority to adjudicate lawsuits against the States. However, using its power under Section 5 of the Fourteenth Amendment, Congress may explicitly carve out specific exceptions where suits against the States will be permitted:
Whether a congressional Act passed under § 5 can impose monetary liability upon States requires an assessment of both the ‘evil’ or ‘wrong’ that Congress intended to remedy, and the means Congress adopted to address that evil. Legislation enacted under § 5 must be targeted at conduct transgressing the Fourteenth Amendment's substantive provisions. And there must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.
Coleman v. Ct. of Appeals of Maryland , 566 U.S. 30, 132 S.Ct. 1327, 182 L.Ed.2d 296 (2012) (internal citation omitted). Defendant argues that all claims in this case are barred by the Eleventh Amendment and that no exceptions apply.
FMLA
The FMLA entitles an employee to take up to 12 work weeks of unpaid leave per year for (A) "the birth of a son or daughter of the employee and in order to care for such son or daughter[,]" (B) the adoption or foster-care placement of a child with the employee, (C) the care of a "spouse ... son, daughter, or parent" with "a serious health condition," or (D) the employee's own serious health condition when the condition interferes with the employee's ability to perform at work. 29 U.S.C. § 2612(a)(1) . The FMLA also creates a private right of action for equitable relief and damages "against any employer (including a public agency) in any Federal or State court." 29 U.S.C. § 2617(a)(2) .
The Supreme Court considered the Eleventh Amendment implications as to a claim asserted under subparagraph (C) in Nevada Dep't of Hum. Res. v. Hibbs , 538 U.S. 721, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003). "Subparagraph (C), like (A) and (B) , grants leave for reasons related to family care, and those three provisions are referred to here as the family-care provisions." Coleman , 566 U.S. at 34, 132 S.Ct. 1327 (emphasis added). " Hibbs held that Congress could subject the States to suit for violations of subparagraph (C)[.]" Id. "That holding rested on evidence that States had family-leave policies that differentiated on the basis of sex and that States administered even neutral family-leave policies in ways that discriminated on the basis of sex." Id. (citing Hibbs, 538 U.S. at 730–732, 123 S.Ct. 1972 ).
States retain their Eleventh Amendment immunity against suit under subsection D, the "self-care" provision of the FMLA. Coleman , 566 U.S. at 43, 132 S.Ct. 1327. Because the self-care provision covers a wide variety of claims unrelated to pregnancy or other conditions traditionally associated with gender discrimination, implementation of the self-care provision "is not a congruent and proportional remedy[,]" sufficient to abrogate Eleventh Amendment Immunity, based on State sick-leave policies at the time of the FMLA's enactment. Id. at 39, 132 S.Ct. 1327.
Defendant argues that because Plaintiff was to physically give birth, that any pregnancy-related leave falls within the self-care, rather than family-care, provision of the FMLA. Defendant insists that it follows that Plaintiff is not permitted to characterize her claim as one under subsection A rather than subsection D. The Court is not persuaded.
Rather, the Court agrees with the judges of other districts who have concluded that pregnant women are entitled to, and may have sought, leave for the birth and care of newborns covered under subsection A, and thus may proceed against the state. Craig v. Univ. of Connecticut Health Ctr. , No. 3:13CV00281, 2014 WL 4364530, at *3 (D. Conn. Sept. 3, 2014) ("[C]onsidering that plaintiff was approaching full term pregnancy and drawing all reasonable inferences in favor of plaintiff, the Court finds that plaintiff may qualify under 29 U.S.C. § 2612(a)(1)(A), the family—care provision relating to the birth and care for a son or daughter. Accordingly, defendant's motion to dismiss will be denied with respect to plaintiff's FMLA claim."); Marsal v. E. Carolina Univ. , No. 4:09CV126, 2011 WL 13233595, at *10 (E.D.N.C. Apr. 15, 2011) ("But part of plaintiff's leave likely was also allowed under § 2612(a)(1)(A), governing care of a newborn child. ... [which] presumably is a valid abrogation of sovereign immunity[.]"); Kindred v. State of Okl. ex rel. Bd. of Regents for Oklahoma Agric. & Mech. Colleges , No. 5:05CV306, 2006 WL 752869, at *1 (W.D. Okla. Mar. 23, 2006) ("Plaintiff makes clear in her response that her FMLA claim is based on the need to take leave to care for her infant son. Accordingly, the Eleventh Amendment has no impact on her claim."); Malone v. Shenandoah Cty. Dep't of Soc. Servs. , No. 5:04CV114, 2005 WL 1902857, at *4 (W.D. Va. Aug. 9, 2005) ("The court disagrees with the defendants’ assertion that maternity leave is covered under the self-care provision of the FMLA[.]").
Defendant argues that the Court should not find Craig , as quoted above at the motion to dismiss stage, persuasive, because the Craig Court, at summary judgment, concluded that the FMLA did not apply to the action. ECF No. 19 at PageID #: 119-20. The summary judgment decision was based on the fact that Craig, as a factual matter, "had not worked enough during the preceding twelve months[ ]" to qualify for FMLA protections. Craig v. Univ. of Connecticut Health Ctr. , No. 3:13CV281, 2016 WL 4536440, at *4 (D. Conn. Aug. 30, 2016). The Eleventh Amendment issue was litigated at the Motion to Dismiss stage, and Craig remains persuasive on that issue.
Defendant's attempts to distinguish Malone are unavailing. ECF No. 19 at PageID #: 118-19. That the Court was addressing a claim of FMLA retaliation based on Malone's support of another employee's FMLA rights played no part in the court's decision to analyze the retaliation under the family-care rather than self-care provisions of the Act.
In the only case the Court has located in which a court affirmatively concluded that pregnancy-related leave is covered under the self-care, rather than family-care provision of the FMLA, all of the leave at issue was taken prior to the child's birth. Hall v. Louisiana Workforce Comm'n , No. 3:15CV533, 2016 WL 1756897, at *3 (M.D. La. Apr. 29, 2016) ("Since Plaintiff's claim is due to pregnancy-related illness , her claim falls under the self-care provision[.]") (emphasis added, factual underpinnings confirmed by review of underlying briefing). There is no suggestion, at this stage of the litigation, that Plaintiff either sought to use the FMLA leave at issue solely in advance of her child's birth, or that she was either acting as a surrogate, or intended that the child she birthed was to be immediately raised by others, such that she would not be involved in the newborn's care. Such factual scenarios could be more properly evaluated as "self-care" claims, resulting in the application of Eleventh Amendment Immunity, but the Court need not reach that issue on the record before it. Second, while Defendant is correct that neither the Sixth Circuit nor the Supreme Court has directly addressed Subsection A, the logic of Hibbs applies with equal or greater force to leave related to the care of newborns, as opposed to subsection C, which addresses care for older family members:
The Seventh Circuit has noted that self-care claims specifically related to pregnancy may call for a different analysis than non-pregnancy-related self-care claims:
How, for example, should pregnancy leave be characterized, when it is the woman who seeks it? In a sense, of course, it is self-care, as even in a normal, healthy pregnancy the expectant mother has personal health needs that are not shared by her male partner. In a sense, it relates to care of other(s), since the period immediately after the birth of the child is consumed not only with the mother's recovery from pregnancy, but also with round-the-clock care of the newborn baby. The Hibbs Court singled out maternity leave and paternity leave as an example of dissimilar treatment along gender lines, apparently because it was focusing on the risk of stereotypes that assume that only women will be effective caregivers for new offspring. For that reason, we express no opinion about the way in which a request for self-care leave submitted by a pregnant woman, for medical needs associated with her pregnancy, should be assessed for the purpose of state sovereign immunity. We note only that pregnancy discrimination (as a subset of sex discrimination) implicates a higher level of constitutional scrutiny than disability discrimination, and hence requires a different analysis.
Toeller v. Wisconsin Dep't of Corr. , 461 F.3d 871, 879 (7th Cir. 2006).
By creating an across-the-board, routine employment benefit for all eligible employees, Congress sought to ensure that family-care leave would no longer be stigmatized as an inordinate drain on the workplace caused by female employees, and that employers could not evade leave obligations simply by hiring men. By setting a minimum standard of family leave for all eligible employees, irrespective of gender, the FMLA attacks the formerly state-sanctioned stereotype that only women are responsible for family caregiving, thereby reducing employers’ incentives to engage in discrimination by basing hiring and promotion decisions on stereotypes.
Hibbs , 538 U.S. at 737, 123 S.Ct. 1972. The Sixth Circuit, albeit in dicta , has expressly described Hibbs as solving for discrimination related to newborn care, implicitly invoking Hibbs ’ application to Subsection A cases: "The [Supreme] Court also explained exactly how the family-care provision of the Act would solve this problem. By enabling fathers to take leave to care for a newborn or other family-member, the Act would decrease the gap between the incidence of such leave taken by men and women, and thereby reduce the incentive to hire men over women for fear that women would take more time off to care for family-members." Touvell v. Ohio Dep't of Mental Retardation & Developmental Disabilities , 422 F.3d 392, 404–05 (6th Cir. 2005) (emphasis added).
Defendant is free, at summary judgment, to submit evidence she has that Plaintiff's FMLA request was based solely on a need to care for herself rather than for "the birth" of her child and "to care for" that newborn. Until then, Plaintiff has pled, and argued, claims under subsection A, and cannot be denied remedies she is entitled to under that provision simply because she may have independently been entitled to leave (although not redress against the State for a denial of that leave) under subsection D. Acceptance of Defendant's argument would mean that the State could only be held accountable for denial of leave related to the care of newborns when it discriminated against adoptive parents, parents who engage a surrogate, or fathers generally, but not against birthing mothers. The Court will not endorse such an illogical result.
If Plaintiff wishes to amend her complaint to expressly allege that her request for leave "for the birth of her child[,]" ECF No. 1 at ¶ 18, 23, 30, incorporated time to care for the child immediately following its birth, she may do so within 7 days of the issuance of this ruling. Defendant may respond within 7 days of that filing.
State Law Claim
In her response to the pending motion, Plaintiff does not contest that Defendant is entitled to immunity as to the state law claim. Because a plaintiff abandons undefended claims, the Court dismisses the state law claim. Doe v. Bredesen , 507 F.3d 998, 1007–08 (6th Cir. 2007) (affirming the district court's conclusion that the plaintiff abandoned certain claims by failing to raise them in his brief opposing the government's motion to dismiss); Meredith v. Allen Cty. War Memorial Hosp. Comm'n , 397 F.2d 33, 34 n.2 (6th Cir. 1968) ("Plaintiff also alleged in his complaint that jurisdiction existed under the antitrust laws, but this allegation was not advanced either in opposition [to] defendants’ motion to dismiss or on appeal, and we therefore assume that the claim of antitrust violation has been abandoned.")
Conclusion
For the reasons stated herein, Defendant's Motion for Judgment on the Pleadings (ECF No. 14 ) is denied as to the Family and Medical Leave Act claims and granted as to the state law claim.
IT IS SO ORDERED.