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finding that a "claim for prospective injunctive relief permitted by Ex Parte Young . . . would be brought against state officers or agency employees in their official capacities"
Summary of this case from Bartlett v. S.C. Dep't of Corr.Opinion
C/A No. 3:18-cv-00834-MGL-KDW
04-18-2019
Cynthia B. Woods, Plaintiff, v. S. C. Department of Health & Human Services, Mona Sechrest, Marsha Brown, Kim Backman, and Dr. Pete Liggett, Defendants.
REPORT AND RECOMMENDATION
Plaintiff, proceeding pro se and in forma pauperis, brings this employment action against her former employer, South Carolina Department of Health and Human Services ("SCDHHS"), as well as SCDHHS employees—Defendants Mona Sechrest, Marsha Brown, Kim Backman, and Dr. Pete Liggett (collectively, "Individual Defendants"), who were Plaintiff's supervisors (Sechrest and Liggett) and Defendant's Human Resources managers (Brown and Backman). This matter is before the undersigned pursuant to 28 U.S.C. § 636(b)(1), and Local Civil Rule 73.02(B)(2)(e) (D.S.C.) for a Report and Recommendation ("R&R") on Defendant's Motion to Dismiss Plaintiff's Amended Complaint. ECF No. 71. Plaintiff responded to the Motion, ECF No. 74, and Defendant submitted a Reply, ECF No. 75. Having reviewed the pleadings and filings in the case and applicable law, the undersigned recommends Defendant's Motion to Dismiss, ECF No. 71, be granted and this matter be ended. I. Background
Previously, after the undersigned's initial review of Plaintiff's initial proper-form Complaint, ECF No. 1-6, United District Judge Mary G. Lewis adopted the undersigned's R&R and issued an order permitting service of some, but not all, of the claims in that Complaint. ECF No. 34. Plaintiff's claim for injunctive relief brought pursuant to the Americans with Disabilities Act ("ADA") and the Family Medical Leave Act ("FMLA") was served on SCDHHS; Plaintiff's FMLA claim was served as to the Individual Defendants in their individual capacities. Other claims brought by Plaintiff in her Proper Form Complaint, ECF No. 1-6 were dismissed without prejudice and without service of process. Defendants moved to dismiss that Complaint. After considering the parties' arguments and applicable law, the undersigned issued an R&R recommending that Defendants' Motion to Dismiss be granted, and Plaintiff's Complaint be dismissed. ECF No. 60 ("October 2018 R&R"). Plaintiff was advised of her right to submit objections to the R&R. Instead, Plaintiff filed what she called an "Amended Complaint." ECF No. 64. United States District Judge Mary G. Lewis liberally construed Plaintiff's filing as a Motion to Amend the Complaint and gave Defendant time to respond to that motion, ECF No. 65, which it did, ECF No. 67. "In an abundance of caution," Judge Lewis granted Plaintiff's Motion to Amend, mooted then then-pending R&R and the motion to dismiss the earlier Complaint, and returned the matter to the undersigned for further proceedings. ECF No. 68. Defendant's motion to dismiss the Amended Complaint is now under consideration.
Plaintiff's Complaint as served included a claim for injunctive relief brought pursuant to the Americans with Disabilities Act ("ADA") and the Family Medical Leave Act ("FMLA") as to Defendant SCDHHS and an FMLA cause of action against the Individual Defendants in their individual capacities. See ECF Nos. 1-6, 25, 34. Plaintiff's purported claims brought pursuant to Title VII of the Civil Rights Act of 1964, her claims for monetary relief against SCDHHS under the ADA and FMLA, her ADA claims against the Individual Defendants, and her claim against another defendant were summarily dismissed without being served. See ECF No. 34; 28 U.S.C. § 1915(e)(2)(B) (noting claims by indigent defendants may be dismissed sua sponte and without service of process if they are based on meritless legal theories).
Plaintiff's Amended Complaint lists the same Defendants served with the original Complaint—SCDHHS, Sechrest, Brown, Backman, and Liggett—and includes causes of action under the ADA and the FMLA. Am. Compl., ECF No. 64. Essentially, Plaintiff claims that Defendants violated the ADA and FMLA by failing to accommodate her medical condition related to fragrance sensitivity. Plaintiff had been accommodated by being placed in a closed office; however, during renovation of her workspace she was moved to an open cubicle. Plaintiff sought accommodations of being moved to a closed office or being permitted to telecommute. See EEOC Charge, ECF No. 1-6 at 40 (attached to Compl. but not Am. Compl.). Based on the "denial of an effective accommodation," Plaintiff "was forced to go on medical leave related to [her] condition." Id. She alleges her employment was terminated as of November 4, 2015, because she was unable to return to work. Id. Plaintiff's list of damages sought is slightly different from those sought in her original Complaint but includes requests for both injunctive and monetary relief. Am. Compl. 18. In the Amended Complaint, Plaintiff seeks to be reinstated to her position with SCDHHS; to have her personnel file "clear of all negative documentation" regarding attendance since October 2015; to be reimbursed for out-of-pocket expenses since October 2015; to be awarded "maximum damages allowed for exemplary & compensatory for mental & emotional pain & suffering" since that time; and to recover interest, expenses, and other damages allowed by law. Id.; cf. ECF No. 1-6 at 48 (in which Plaintiff sought back pay, seniority that allowed her to receive retiree benefits, an indication in her personnel record that she retired with full benefits, out-of-pocket medical expenses, and "maximum damages allowed for exemplary, compensatory for mental/emotional pain and suffering"). The Amended Complaint, comprised of 21 handwritten pages and several attachments, does not clearly delineate what claims are brought against what defendant(s). Instead, much of the Amended Complaint focuses on reasons Plaintiff believes each Individual Defendant ought to be held responsible for her termination. See Am. Compl. 6-18. Many of the documents attached to the Complaint were also attached to the Amended Complaint. Except where clearly stated otherwise in the Amended Complaint the undersigned interprets Plaintiff's causes of action in the Amended Complaint to be the same as those permitted to be served in her earlier Complaint. II. Standard of Review
Defendants seek dismissal pursuant to Rules 12(b)(1) and 12(b)(6). ECF No. 51. Much of Defendants' argument is based on Eleventh Amendment immunity and the argument that the court has no jurisdiction over Plaintiff's claims. As federal courts are courts of limited jurisdiction, there is no presumption that the court has jurisdiction. See Pinkley, Inc. v. City of Fredrick, Md., 191 F.3d 394, 399 (4th Cir. 1999). Typically, the burden of proving subject-matter jurisdiction is on the plaintiff, the party asserting jurisdiction. See Richmond, Fredericksburg & Potomac R.R. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). "[W]here a party challenges the subject matter jurisdiction of the court on the grounds that the party is an arm of the state entitled to sovereign immunity, the burden of persuasion lies with the party asserting the immunity." Hutto v. S.C. Ret. Sys., 899 F. Supp. 2d 457, 466 (D.S.C. 2012) (citing Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 237 (2d Cir. 2006)).
To the extent Defendants seek dismissal for failure to state a claim, such a motion should not be granted unless it appears certain that Plaintiff can prove no set of facts that would support her claim and would entitle her to relief. Fed. R. Civ. P. 12(b)(6). "A motion filed under Rule 12(b)(6) challenges the legal sufficiency of a complaint." Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). When considering this motion, the court "must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94 (2007). The court is also to "'draw all reasonable inferences in favor of the plaintiff.'" E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (quoting Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009)). Although a court must accept all facts alleged in the complaint as true, this is inapplicable to legal conclusions, and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). II. Discussion
A. Plaintiff may not pursue claims for monetary damages against SCDHHS.
Upon initial review of the Complaint (ECF No. 1 and its attachments), the court sua sponte dismissed Plaintiff's FMLA and ADA claims for monetary damages as to SCDHHS because "such claims against state governmental entities such as SCDHHS are barred by the Eleventh Amendment to the United States Constitution." ECF No. 25 at 3. See, e.g., Coleman v. Md. Court of Appeals, 560 U.S. 30, 33 (2012) ("In agreement with every Court of Appeals to have addressed this question, this Court now holds that suits against States under [the FMLA's self-care provision] are barred by the States' immunity as sovereigns in our federal system"); Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) (holding state employees were barred by Eleventh Amendment from recovering monetary damages from state employer for failure to comply with Title I of the ADA). See also Order, ECF No. 34 (adopting ECF No. 25). For these same reasons, to the extent Plaintiff's Amended Complaint is construed as containing ADA or FMLA claims for monetary damages against SCDHHS, such claims should be dismissed.
In making this recommendation, the undersigned notes and has reviewed arguments presented by Plaintiff in her opposition to Defendant's Motion. For example, Plaintiff indicates she does not agree that Garrett forecloses an ADA claim against SCDHHS, citing a 2002 article from the National Council on Disability's ("NCD") website. Pl. Mem. 4-5, ECF No. 74-1 (copy of NCD article). The portion of the article on which Plaintiff relies however, indicates that monetary relief for ADA violations may be sought by the United States government, not individual Plaintiffs. See ECF No. 74-1 at 8. Here the United States is not the Plaintiff. Binding Supreme Court precedent requires that Plaintiff's claim for monetary damages against SCDHHS be dismissed. Similarly unavailing is Plaintiff's argument that the court should "decide change is needed" and permit Plaintiff to bring an FMLA claim against SCDHHS. See Pl. Mem. 11. Binding precedent requires dismissal of any ADA or FMLA claims for monetary damages brought against SCDHHS. This court cannot overrule Supreme Court precedent.
The NDA article indicates that injunctive relief from ADA violations may be pursued by individuals. ECF No. 74-1 at 8. Plaintiff's claim for injunctive relief against SCDHHS is discussed below.
Finally, in her Amended Complaint Plaintiff requests that "if the Court believes it is without jurisdiction to consider [] any portion of Plaintiff's ADA or FMLA claims brought against [SCDHHS]—including any claim for injunctive relief," then "the Court [should] remand the case to the state court so that the state court may thereupon proceed with the case." Am. Compl. 3-4. Plaintiff filed this case in this court, not state court. Remand is not an option, so this request need not be considered further.
B. Plaintiff may not pursue ADA claims against the Individual Defendants.
The court previously dismissed ADA claims against the Individual Defendants—SCDHHS employee/supervisors Sechrest, Brown, Backman, and Liggett. ECF No. 34 at 3, ECF No. 25 at 6. See, e.g., Baird ex rel. Baird v. Rose, 192 F.3d 462, 472 (4th Cir. 1999) (finding that neither Title VII nor the ADA provides for actions against individual defendants for violation of its provisions); Silk v. City of Chicago, 194 F.3d 788, 797 n.5 (7th Cir. 1999) (ADA, no individual liability of supervisor for retaliation); Mason v. Stallings, 82 F.3d 1007, 1009 (11th Cir. 1996) (same); Jones v. Sternheimer, 387 F. App'x 366, 368 (4th Cir. 2010) (affirming summary dismissal of pro se, in forma pauperis complaint as to Title VII, ADA, and ADEA claims against individual employees).
Plaintiff's argument that a state agency's receipt of federal funds waives the State's Eleventh Amendment immunity as to ADA claims, see Pl. Mem. 5, is also unavailing. See Squires v. S.C. Dep't of Health & Envtl. Control, No. 4:16-CV-02414-RBH, 2017 WL 874986, at *3-5 (D.S.C. Mar. 6, 2017) (noting cases discussing receipt of federal funding as waiving immunity focused on Title VII or Rehabilitation Act claims and agreeing with view of courts that have considered the issue to find that a state agency's "alleged acceptance of federal funds does not constitute a waiver of its Eleventh Amendment immunity for its alleged violations of Title I of the ADA."). Plaintiff's earlier Title VII claims were summarily dismissed. Plaintiff has not brought a claim under the Rehabilitation Act.
For these reasons, to the extent Plaintiff's Amended Complaint is construed as containing ADA claims against the Individual Defendants, such claims should be dismissed.
C. Plaintiff has not pleaded a plausible FMLA claim against the Individual Defendants.
In initial review of Plaintiff's original Complaint, the court permitted service of Plaintiff's individual-capacity FMLA claim against the Individual Defendants—SCDHHS employees Sechrest, Brown, Backman, and Liggett. See ECF No. 25 at 6 (citing Jones v. Sternheimer, 387 F. Appx. 366, 368-69 (4th Cir. 2010)). In Jones the Fourth Circuit found that the district court's summary dismissal of FMLA claim as to individual employees of a nongovernmental employer was an abuse of discretion because "whether the FMLA imposes liability on employee supervisors in their individual capacities is an open question in this circuit."). The undersigned expressly noted, however, that, like the court in Jones, permitting this portion of Plaintiff's FMLA claim to be served on these Defendants was not intended as an opinion as to whether these claims might survive a Rule 12(b) motion filed after service. ECF No. 25 at 6 n.1.
The Individual Defendants now seek dismissal, arguing dismissal is appropriate because the law is settled that Eleventh-Amendment immunity bars FMLA claims against individual state-agency employees. Def. Mem. 3-4. Defendants submit that Lizzi v. Alexander, 255 F.3d 128 (4th Cir. 2001) (overruled in part on other grounds by Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003)), informs this analysis. Lizzi provides that state employee supervisors sued for violating an employee's FMLA rights enjoy the same immunity from suit that the state itself enjoys because the state is the real party in interest. See also Martin v. Wood, 772 F.3d 192 (4th Cir. 2014) (citing Lizzi, 255 F.3d at 136-17 and finding Eleventh Amendment barred Fair Labor Standards Act (FLSA) claim brought against supervisors in their individual capacities). Accordingly, the argument goes, the Eleventh Amendment forecloses Plaintiff's attempt to pursue an individual capacity FMLA claim against the Individual Defendants because, as in Lizzi and Martin, the Individual Defendants' complained-of actions "were inextricably tied to their official duties." Lizzi, 255 F.3d at 136; see Martin, 772 F.3d at 193 ("Because the actions of [plaintiff's] supervisors, as alleged in the complaint, were inextricably tied to their official duties, we conclude that the [state] is the real party in interest in this action.").
In Lizzi the Fourth Circuit found plaintiff's FMLA claims against his supervisors individually was barred by the Eleventh Amendment. The court explained that where the alleged actions of state employee defendants on which an FMLA plaintiff relies to support an individual capacity FMLA claim against them were all "tied inextricably to [the natural defendants'] official duties," the State was the real party in interest, regardless of whether the complaint alleged that the defendants were sued in their individual capacities and regardless of the fact that the complaint was sprinkled with conclusory allegations "that the defendants were motivated by spite and ill will." Lizzi, 255 F.3d at 136-37 (internal quotations omitted). "The FMLA does not permit a plaintiff to evade the strictures of sovereign immunity by suing . . . individual [state employees] as the employer rather than the State." 255 F.3d at 138. In Brown v. Lieutenant Governor's Office on Aging, 697 F. Supp. 2d 632, 638 (D.S.C. 2010), the court applied Lizzi's holding that "because the State enjoys Eleventh Amendment immunity for claims brought under the FMLA, the individual supervisors . . . are protected by that same immunity." (internal quotations omitted); see also McKay v. Med. Univ. of S.C., No. CV 2:17-45-RMG, 2017 WL 3477799, at *3 (D.S.C. Aug. 14, 2017) ("Controlling Fourth Circuit authority holds claims against state employees in their individual capacities under the FMLA are barred by Eleventh Amendment immunity when the state is the real party in interest. The state is the real party in interest when "the allegedly unlawful actions of the state officials [were] 'tied inextricably to their official duties.'" (citing and quoting Martin, 772 F.3d at 196)); Williams v. Dorchester Cnty. Det'n. Ctr., 987 F. Supp. 2d 690, 693 (D.S.C. 2013) (same).
In her Amended Complaint, Plaintiff avers the Individual Defendants were involved in the wrongful denial of accommodations (which would be related to the subject-to-dismissal ADA claim) and, to a lesser extent, Plaintiff submits the Individual Defendants mishandled Plaintiff's FMLA paperwork and violated SCDHHS policies. See, e.g., Am. Compl. 5-14. In her opposition to the Motion to Dismiss, Plaintiff argues that the complained-of actions allegedly committed by the Individual Defendants were "'not inextricably tied to their official duties,' but were tied instead to their individual understandings of their right as supervisors to decide what the Plaintiff was entitled to under federal law." Pl. Mem. 12. In support of her argument, Plaintiff seems to look to commentary and case law regarding 42 U.S.C. § 1983 and a district court decision from the Eastern District of Pennsylvania. She also cites to various articles and cases that she attaches to her memorandum without more fully discussing them or how they apply to her particular case in this court. Id. at 12-21.
On Reply, Defendants submit Plaintiff's arguments are unavailing based on Lizzi. Reply 3-3. Further, Defendants appropriately note that neither Plaintiff's Complaint or her Amended Complaint purport to include a 42 U.S.C. § 1983 cause of action. Id. at 4-5. Defendants alternatively argue that they are entitled to qualified immunity and that she cannot show prejudice as to any alleged violation of her FMLA rights. Id. at 5-7.
The undersigned agrees with Defendants that dismissal of Plaintiff's FMLA claim as to the Individual Defendants is appropriate based on Lizzi. As an initial matter, to the extent that Plaintiff calls her claim one against the Individual Defendants in their "individual" as opposed to "official" capacities is of no real moment. See Lizzi, 255 F.3d at 137 ("The mere incantation of the term 'individual capacity' is not enough to transform an official capacity action into an individual capacity action." (citing Bender v. Williamsport Area Sch. Dist. 475 U.S. 534, 543 (1986)). Further, anything the Individual Defendants did (or did not do) regarding Plaintiff's request for FMLA leave would necessarily be "tied to their official duties." Compare McKay, 2017 WL 3477799, at *3 (noting the "tie between" the individual defendant's actions such as not properly processing FMLA leave requests and their official duties "could not be more obvious."). Here, that the Individual Defendants' "understandings of their right as supervisors to decide what the Plaintiff was entitled to" (Pl. Mem. 12) did not comport with the result Plaintiff sought does not negate the tie between their actions and their duties as Plaintiff's supervisors and human resources representatives. SCDHHS is the real party in interest. Like SCDHHS, the Individual Defendants are entitled to Eleventh Amendment immunity. Claims against them in their individual capacities should be dismissed.
Based on this recommended ruling, arguments concerning qualified immunity need not be considered. Further, Plaintiff's pleadings—already amended once—include no reference to § 1983. The court need not consider arguments based on that separate statutory scheme herein.
B. FMLA and ADA claims for injunctive relief
As discussed in the October 2018 R&R, Eleventh Amendment immunity protects Defendant SCDHHS from claims for injunctive relief for the same reasons the court is without jurisdiction to consider claims for monetary damage against the agency. As the court of appeals explained in McCray v. Maryland Department of Transportation, 741 F.3d 480 (4th Cir. 2014): "[A]n unconsenting State is immune from suits brought in federal court by her own citizens. This protection extends to state agencies. Therefore, absent abrogation of [Eleventh Amendment] sovereign immunity or consent from [the defendant State], [plaintiff] cannot seek injunctive or monetary relief from her former state agency employer." 741 F.3d at 483 (internal quotations and citations omitted) (ADA).The State of South Carolina has not consented to this suit, see S.C. Code Ann. § 15-78-20 (e) (expressly reserving the State's and its departments' Eleventh Amendment immunity), nor has its Eleventh Amendment immunity been validly abrogated by either Title I of the ADA, see Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001), or by the self-care provision of the FMLA, Coleman v. Court of Appeals of Md., 566 U.S. at 33. Accordingly, to the extent Plaintiff seeks injunctive relief against SCDHHS itself, such claims should be dismissed.
Rather, any liability for injunctive relief sought by Plaintiff would be against the Individual Defendants based on the doctrine introduced by Ex parte Young, 209 U.S. 123 (1908). See ECF No. 60 at 9-10. As the Supreme Court explained in Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993), the Ex parte Young exception to the States' Eleventh Amendment immunity
is narrow: It applies only to prospective relief, does not permit judgments against state officers declaring that they violated federal law in the past, and has no application in suits against the States and their agencies, which are barred regardless of the relief sought . . . . [S]uits [under Ex parte Young] are deemed to be against officials and not the States or their agencies, which retain their immunity against all suits in federal court.506 U.S. at 146.
In her Amended Complaint Plaintiff seeks the injunctive relief of getting her "job back," having her personnel records "clear of negative documentation . . . beginning in October 2015 until the present . . .," and "permanent injunctive relief to prevent any recurrence of the [ADA] and [FMLA] violations alleged herein[.]" Am. Compl. 19-20.
As to the request to be reinstated to her job only, Defendants concede that to be a type of prospective injunctive relief permitted by Ex parte Young. Def. Mem. 5-6 (citing Montgomery v. Maryland, 266 F.3d 334, 339-41 (4th Cir. 2001), vacated on unrelated grounds 535 U.S. 1075 (2002)). Such a claim would be brought against state officers or agency employees in their official capacities. However, in this case, Defendants argue dismissal is appropriate because Plaintiff has not set out a plausible claim pursuant to Ex parte Young. Id. A plaintiff seeking such relief under Ex parte Young must do more than simply name an employee or official of his former employer as a defendant in his suit. See Oliver v. Va. Bd. of Bar Exmrs., 312 F. Supp. 3d 515, 522 (E.D. Va. 2018). Rather, a plaintiff must show a special relationship between the state official or employee sued and the actions sought to be prospectively enjoined. Kobe v. Haley, 666 F. App'x 281, 299 (4th Cir. 2016). Practically speaking, a plaintiff must name as a defendant one or more state officials or employees who has both the responsibility for the alleged ongoing violations of federal law and the authority to provide prospective redress for those alleged ongoing violations, i.e., the authority to end the alleged ongoing violations. See id. at 299-300; see also Allen v. Coll. of William and Mary, 245 F. Supp. 2d 777, 791 (E.D. Va. 2003) (noting Ex parte Young relief may only be pursued against a state official if that official has the authority to provide the relief sought). Where these requirements are not met, the Ex parte Young exception does not apply and the Eleventh Amendment entitles the defendant state officers or employees to dismissal of the action. See Hutto v. S.C. Retirement Sys., 773 F.3d 536, 550-51 (4th Cir. 2014) (because state officials sued in their official capacities lacked required special relationship to state action sought to be enjoined by plaintiff as violative of federal law, Ex parte Young was inapplicable and defendants were entitled to Eleventh Amendment immunity from suit); see also Kobe, 666 F. App'x at 298- 300 (because Governor lacked responsibility for actions challenged as violative of federal law or authority to change those actions, purported Ex parte Young claim against her failed as a matter of law and district court properly dismissed official capacity claim against her as barred by Eleventh Amendment).
The Individual Defendants, none of whom is the Director of SCDHHS, argue dismissal is required because they lack the authority to grant the relief Plaintiff seeks. South Carolina law vests the Director of SCDHHS alone with the exclusive authority to hire agency employees. See S.C. Code Ann. § 44-6-100. ("The director shall have sole authority to employ and discharge employees [of SCDHHS] . . . .") (emphasis added).
In response to this argument, Plaintiff looks to SCDHHS's internal grievance procedure to support her argument that Individual Defendant Liggett, as SCDHHS's Deputy Director, has the authority to reinstate her because the internal grievance policy gave Liggett the authority to overturn Plaintiff's recommended termination during the grievance period. Pl. Mem. 22-24. Defendant does not respond to this portion of Plaintiff's argument on reply. This argument, while well-reasoned, does not salvage Plaintiff's request for reinstatement.
While internal SCDHHS policy may well give Deputy Director Liggett a deciding role in the grievance process South Carolina statutory law vests another individual—the unnamed SCDHHS Director—with sole statutory authority "to employ and discharge employees." S.C. Code § 44-6-100. Accordingly, Liggett does not have the ultimate authority to reinstate Plaintiff. For this reason, no Ex parte Young claim could lie against him or any other Defendant. Plaintiff's request for the prospective injunctive relief of reinstatement should be dismissed for failure to state a claim.
As to the other forms of injunctive relief sought by Plaintiff, the undersigned agrees that Ex parte Young would not allow them. The relief concerning the "cleaning up" of Plaintiff's personnel file would involve removal of documentation already included in her file, making it a request that plainly does not fall within the narrow Ex parte Young exception to Eleventh Amendment immunity for officials. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 105 (1984) (noting the Ex parte Young exception does not extend to "encompass retroactive relief").
Plaintiff's prayer requests a "permanent injunction" to prevent any recurrence of the alleged violations of the FMLA and ADA when alleging ongoing violations of federal law. However, mere reallegation of prior alleged violations does not fall within the narrow Ex parte Young exception. See Tani v. St. Mary's Cty., Md., No. CIV. PJM 08-1950, 2011 WL 3821058, at *4 (D. Md. Aug. 25, 2011) (dismissing claim for injunction against "recurrence" of alleged violations).
Defendant also argues that, to the extent Plaintiff seeks relief for violations of purely state law, dismissal is appropriate. Def. Mem. 6-7. It is not clear to the undersigned that Plaintiff seeks such relief. However, she does aver that Defendants "did not follow the state's attendance policy nor its FMLA policy in its entirety therefore leading to the Plaintiff's rights under these policies denied." Am. Compl. 17. To the extent Plaintiff's Amended Complaint is construed to seek Ex parte Young relief from the Individual Defendants for violations of purely state law, those claims fail. See Pennhurst State Sch. & Hosp, 465 U.S. at 106 (noting the reasons for the Ex parte Young exception "are inapplicable in a suit against state officials on the basis of state law").
It is recommended that Plaintiff's claims for injunctive relief against the Individual Defendants be dismissed as a matter of law. IV. Recommendation
Based on this recommendation, the undersigned does not analyze Defendant's final alternative ground for dismissal related to lack of prejudice for FMLA violation. See ECF No. 71-1.
Accordingly, it is recommended that the district court grant Defendants' Motion to Dismiss, ECF No. 71, and end this case.
IT IS SO RECOMMENDED. April 18, 2019
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).