                        RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                     File Name: 14a0169p.06

                UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                   _________________


                                                  X
                                                   -
 COREY S. CRUGHER, an individual,
                                                   -
                        Plaintiff-Appellant,
                                                   -
                                                   -
                                                       No. 13-2425
            v.
                                                   ,
                                                    >
                                                   -
                                                   -
 JOHN PRELESNIK, Warden, in his official and

                           Defendant-Appellee. --
 individual capacity,

                                                  N
                     Appeal from the United States District Court
                for the Western District of Michigan at Grand Rapids.
               No. 1:13-cv-00416—Robert Holmes Bell, District Judge.
                                     Argued: May 8, 2014
                            Decided and Filed: August 1, 2014
       Before: BOGGS and CLAY, Circuit Judges; and COHN, District Judge.*

                                     _________________

                                          COUNSEL
ARGUED: Collin H. Nyeholt, FIXEL LAW OFFICES, PLLC, Okemos, Michigan, for
Appellant. Jeanmarie Miller, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellee ON BRIEF: Collin H. Nyeholt, Joni M. Fixel, FIXEL
LAW OFFICES, PLLC, Okemos, Michigan, for Appellant. Jeanmarie Miller, OFFICE
OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
     COHN, D.J., delivered the opinion of the court, in which BOGGS, J., joined.
CLAY, J. (pp. 13–19), delivered a separate dissenting opinion.




        *
          The Honorable Avern Cohn, Senior United States District Judge for the Eastern District of
Michigan, sitting by designation.


                                                1
No. 13-2425        Crugher v. Prelesnik                                          Page 2


                                 _________________

                                      OPINION
                                 _________________

       AVERN COHN, Senior District Judge. This is an employment discrimination
case. Plaintiff/Appellant Corey Crugher (“Crugher”), a Michigan Department of
Corrections (“MDOC”) employee working at the Ionia Correctional Facility (“ICF”),
brought this action against Defendant/Appellee John Prelesnik (“Prelesnik”), the warden
of the ICF, claiming that Crugher was retaliated against, subjected to harassment and
intimidation, and ultimately terminated after he took time off under the self-care
provision of the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2612(a)(1)(D). As
a form of relief, Crugher sought reinstatement at the ICF. The district court granted
Prelesnik’s motion to dismiss under Rules 12(b)(1) and (6) of the Federal Rules of Civil
Procedure on the grounds that the claim is barred by sovereign immunity or,
alternatively, is untimely under the two-year limitations period in the FMLA. Crugher
appeals.

       This appeal requires us to decide whether an action by a state employee seeking
prospective injunctive relief (reinstatement) against a state official under the FMLA’s
self-care provision applies the limitations period contained in the FMLA. We hold that
it does. We also agree with the district court that Crugher failed to state a willful
violation of the FMLA, and that allowing Crugher to amend his complaint to allege
willfulness—to take advantage of an extended three-year limitations period—would be
futile. Therefore, we affirm.

                                           I.

                                          A.

       On February 27, 1994, Crugher began employment for the MDOC as a
corrections officer assigned to the Saginaw Mound Correctional Facility in Detroit,
Michigan. Five years later, in 1999, Crugher developed irritable-bowel syndrome
(“IBS”) and generalized anxiety disorder (“GAD”). As a result of these chronic medical
No. 13-2425           Crugher v. Prelesnik                                                     Page 3


conditions, Crugher suffered abdominal pain, diarrhea, bleeding, cramping, and fatigue.
Crugher’s “flare-ups” lasted 24 hours once every six weeks, and it was necessary for him
to miss work during a flare-up.

        Crugher excelled as a corrections officer despite his medical conditions. He took
time off and intermittent FMLA leave when necessary.

        In November 2009, Crugher was transferred to ICF. While employed at ICF,
Crugher continued to take as-needed medical leaves pursuant to the self-care provision
of the FMLA.

        Crugher says he was subjected to harassment and intimidation at ICF because he
took FMLA leave. For example, on February 8, 2010, Crugher was given a written
counseling memorandum “for incurring lost time in four consecutive pay periods,”
specifically related to his “utilization of sick leave.” When using sick leave in the future,
Crugher was “instructed to provide medical documentation” from his physician
including “diagnosis and prognosis, the reason [he] could not work, and the expected
date of return to work.”

        On April 23, 2010, Crugher was placed on “interim rating,” where his
performance was closely monitored for 180 days, because his “time and attendance
issues” did not improve. Crugher was instructed that, “[i]n the future [his] time and
attendance will be closely monitored for unscheduled absences.” Crugher was further
reminded of the requirement to provide medical documentation “for each instance of
sick-leave usage per the conditions outlined in the February 8, 2010 counseling memo.”
Crugher’s follow-up rating at the conclusion of the 180 days commended him for having
“good time and attendance.”

        In a subsequent follow-up rating sometime after October 20, 2010,1 Crugher was
placed back on interim rating for a period of 180 days. Crugher was criticized for his
continuous abuse of “time and attendance” from August 2010 through October 2010.


        1
          The interim employee rating is not signed or dated, but it refers to Crugher’s non-compliance
with the employee handbook as late as October 20, 2010.
No. 13-2425              Crugher v. Prelesnik                                                     Page 4


Crugher was warned that “[f]ailure to correct these deficiencies will result in further
disciplinary action up to and including dismissal.”2

         On November 17, 2010, Crugher presented to his doctor with severe abdominal
pain, diarrhea, bleeding, cramping, and fatigue. Following the doctor’s appointment,
Crugher submitted a request for FMLA leave. He was approved for intermittent FMLA
leave from November 22, 2010 through May 21, 2011.

         Subsequent to being approved for intermittent FMLA leave, on November 23,
2010, Crugher was notified that he was to attend a “Performance Rating Conference”
because of “non-compliance with the DOC Employee Handbook, Employment
Requirements, 3. Use of Leave.”3 On January 11, 2011, Crugher was discharged.

                                                    B.

         On January 14, 2011, Crugher’s union filed a grievance on his behalf claiming
that he was wrongfully terminated. It was ultimately determined that Crugher’s
termination was justified because he “continued to liquidate sick leave in conjunction
with regular days off and holidays. His unsatisfactory service occurred while on a
second unsatisfactory service rating and a last chance agreement.”

         On April 16, 2013, after exhausting his administrative remedies, Crugher filed
a one-count complaint claiming that he was terminated because of his protected FMLA
leave and seeking reinstatement to his position. Crugher relied on Ex parte Young, 209
U.S. 123 (1908), and Diaz v. Michigan Department of Corrections, 703 F.3d 956 (6th
Cir. 2013).

         As noted above, the district court dismissed the action on the grounds that
Prelesnik was not the proper defendant because he did not have anything to do with the



         2
          Crugher denies receiving the document placing him back on interim rating for 180 days. The
complaint states that “[t]here is question as to whether [Crugher] was ever actually placed on this second
Interim Rating, or whether it was considered and never acted upon.”
         3
             Crugher believes that he was not given this document.
No. 13-2425            Crugher v. Prelesnik                                                         Page 5


alleged violation of Crugher’s rights under the FMLA.4 As such, the district court
reasoned that the state was the real party in interest and that Eleventh Amendment
sovereign immunity precluded Crugher’s claim. Alternatively, the district court held
that Crugher’s claim was barred by the FMLA’s two-year statute-of-limitations period.

                                                     II.

         Prelesnik’s motion to dismiss was filed under Federal Rules of Civil Procedure
12(b)(1) and (6).

                                                    A.

         A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) “may either
attack the claim of jurisdiction on its face or it can attack the factual basis of
jurisdiction.” Golden v. Gorno Bros., Inc., 410 F.3d 879, 881 (6th Cir. 2005). Where,
as here, the district court did not resolve any factual disputes, “our review of the district
court’s application of the law to the facts is de novo.” Id.

                                                     B.

         A district court’s dismissal of a plaintiff’s complaint under Federal Rule of Civil
Procedure 12(b)(6) is also reviewed de novo. Lindsay v. Yates, 498 F.3d 434, 438 (6th
Cir. 2007). The complaint is construed in the light most favorable to the plaintiff, and
we accept the complaint’s allegations as true, drawing all reasonable inferences in favor
of the plaintiff. Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007) (citing Evans-
Marshall v. Bd. of Educ., 428 F.3d 223, 228 (6th Cir. 2005)). Ultimately, “[t]he
defendant has the burden of showing that the plaintiff has failed to state a claim for
relief.” Id. (citation omitted).




         4
           The court does not address this aspect of the district court’s holding because it is not necessary
to the resolution of this appeal.
No. 13-2425              Crugher v. Prelesnik                                                     Page 6


                                                    III.

         Under 29 U.S.C. § 2617(c)(1), FMLA actions must be brought “not later than 2
years after the date of the last event constituting the alleged violation for which the
action is brought.” This period is extended to three years if the plaintiff alleges a
“willful violation” of the FMLA. § 2617(c)(2). Crugher admits that the “last event
constituting the alleged violation for which the action is brought” is his termination from
employment that occurred on January 11, 2011. Crugher did not file this action until
April 16, 2013, over three months past the FMLA’s two-year limitations period.

         Crugher argues that the FMLA’s statute-of-limitations period does not apply
because his claim is brought “under Ex parte Young.”5                           Appellant Br. at 28.
Alternatively, Crugher argues that his claim falls within the FMLA’s three-year
limitations period for willful violations.

                                                     A.

         The self-care provision of the FMLA allows an employee “a total of
12 workweeks of leave during any 12-month period” for, inter alia, “. . . a serious health
condition that makes the employee unable to perform the functions of the position of
such employee.” 29 U.S.C. § 2612(a)(1)(D). To enforce a violation of the self-care
provision, an employee may bring an action for damages, id. at § 2617(a)(1)(A), or for
equitable relief “including employment, reinstatement, and promotion,” id. at
§ 2617(a)(1)(B).

         The Supreme Court, however, has determined that the FMLA’s self-care
provision is not enforceable in a private action seeking money damages against a state
official based on principles of Eleventh Amendment sovereign immunity. Coleman v.
Court of Appeals of Md., 132 S. Ct. 1327, 1332 (2012).6 We have since held that a state


         5
           Ex parte Young created an exception to a state’s sovereign immunity—a legal fiction—“that
when a federal court commands a state official to do nothing more than refrain from violating federal law,
he is not the State for sovereign-immunity purposes.” Va. Office for Prot. and Advocacy v. Stewart, 131
S. Ct. 1632, 1638 (2011) (citation omitted).
         6
             Four justices joined in the opinion. Justice Scalia concurred in the judgment.
No. 13-2425              Crugher v. Prelesnik                                                   Page 7


employee is permitted to seek prospective relief against a state official for violating the
self-care provision as long as the employee sufficiently alleges “an ongoing violation of
federal law to maintain his equitable claim.” Diaz v. Mich. Dep’t of Corrs., 703 F.3d
956, 966 (6th Cir. 2013).

         Crugher argues that, since he is bringing an “Ex parte Young claim,”7 the
FMLA’s two-year statute of limitations period does not apply to his claim. He states that
“the remedies available in an action for prospective injunctive relief, pursuant to Ex
parte Young, will not be the same as an action under the underlying federal claim.”
Appellant Br. at 28–29. Crugher, citing Seminole Tribe of Florida v. Florida, 517 U.S.
44 (1996), contends that we must look to analogous state law actions to determine the
appropriate limitations period. We disagree.

         Crugher’s claim is not an “Ex parte Young claim”; it is a FMLA claim seeking
prospective injunctive relief, expressly permitted by § 2617(a)(2) and (1)(B). Ex parte
Young simply allows Crugher’s claim for reinstatement, which would otherwise be
barred by sovereign immunity, to be brought against Prelesnik. Importantly, our
decision in Diaz stated that it is “not accurate” that state employees “have no rights
derived from the FMLA.” Diaz, 703 F.3d at 964 (emphasis added). The best reading of
Diaz—and the one most consistent with Supreme Court case law on the Ex parte Young
doctrine—is that equitable-relief suits are “derived from the FMLA” itself. Ibid. It is
true that in some instances federal courts must determine whether the Supremacy Clause
creates an implied right of action against a state official, where there is no express cause
of action, and where Congress intended to create a private right and private remedy. See,
e.g., Arendale v. City of Memphis, 519 F.3d 587, 596 (6th Cir. 2008) (citing Alexander
v. Sandoval, 532 U.S. 275, 286 (2001)). In these instances, there may not be a specific
statute setting a limitations period, and courts look elsewhere to determine the proper
limitations period.8 Indeed, in Ex parte Young, a state official was sued not for violating

         7
             Crugher sometimes refers to his claim as a “Diaz claim.”
         8
           The dissent relies on Chase Bank USA, N.A. v. City of Cleveland, 695 F.3d 548, 554 (6th Cir.
2012), for the proposition that Ex parte Young recognized an implied cause of action under the Supremacy
Clause. Chase Bank, however, identified only one explanation of causes of action in suits pursuant to Ex
No. 13-2425            Crugher v. Prelesnik                                                        Page 8


a statute but for violating the Constitution. Here, however, § 2617(a)(1)(B) of the
FMLA expressly permits Crugher to seek prospective injunctive relief for violations of
the FMLA’s self-care provision. Crugher’s attempt to apply an implied right of action
directly under Ex parte Young is without merit because his suit is pursuant to an express
right of action—the FMLA. See 29 U.S.C. § 2617(a)(2).

         The dissent reaches the wrong conclusion and misplaces its reliance on Mitchell
v. Chapman, 343 F.3d 811, 832 (6th Cir. 2003), stating that a suit against a state official
seeking prospective relief is not expressly permitted by the FMLA. We agree with the
dissent that Mitchell precludes FMLA claims against state employees in their individual
capacities. Id. at 825–26; see also Diaz, 703 F.3d at 961. However, Diaz clarified that
“[t]he Supreme Court and this Circuit barred suits for damages only, not for equitable
relief.” Diaz, 703 F.3d 964 (emphasis in original). We reasoned that the FMLA allows
for equitable relief including reinstatement, and that the Eleventh Amendment does not
bar “suits for equitable, prospective relief, such as reinstatement, against state officials
in their official capacity.” Id. at 964. And the FMLA expressly allows suit for equitable
relief “against any employer (including a public agency) in any Federal or State court.”
29 U.S.C. § 2617(a)(2) (emphasis added). The dissent erroneously concludes that the
FMLA’s definition of employer excludes suits against state officials. It does not. It
precludes suits against state officials in their individual capacities. The dissent’s
position that the FMLA does not allow official capacity suits against state officials for
injunctive relief because such suits are, in reality, nothing more than suits against the
agency itself, ignores what we squarely held in Diaz: the Eleventh Amendment does not
bar suits against state officials for equitable relief to enforce the FMLA’s self-care
provision. Diaz, 703 F.3d 964. Given our conclusion in Diaz and the FMLA’s
allowance of such suits, the dissent’s reliance on Mitchell is misplaced.




parte Young, and it expressly recognized that these questions are a “matter of debate.” Id. at 554 n.4.
Additionally, Chase Bank involved a question of federal preemption. Even if the Supremacy Clause did
create an implied cause of action in such suits, Chase Bank simply does not indicate that it creates a cause
of action where a federal statute expressly provides the plaintiff a cause of action for equitable relief.
No. 13-2425        Crugher v. Prelesnik                                            Page 9


       So too is Crugher’s reliance on Seminole Tribe and Diaz for his position that “the
remedies available in an action to enforce a right conferred by statute pursuant to Ex
parte Young are not the same as the remedies conferred by the federal statute itself.”
Appellant Br. at 31 (emphasis in original). Diaz did not authorize a remedy different
than the remedy available in the FMLA: reinstatement. Rather, Diaz clarified that state
officials could be sued under the FMLA for reinstatement, despite Coleman, because
§ 2617(a)(1)(B) was a constitutional exercise of Congress’s powers as applied to state
officials. Diaz, 703 F.3d at 964. The remedy Crugher seeks here is reinstatement to his
position; section 2617(a)(1)(B) of the FMLA expressly provides for this remedy.

       Crugher reads Coleman too broadly. Coleman did not invalidate the entirety of
the FMLA’s remedial scheme. The Supreme Court in Coleman held that the portion of
the FMLA allowing for money damages under the self-care provision was
unconstitutional because Congress did not validly abrogate states’ sovereign immunity.
132 S. Ct. at 1338. The Supreme Court did not say anything about the portion of the
self-care provision allowing for equitable claims including reinstatement. Therefore, we
“refrain from invalidating more of the statute than is necessary.” Regan v. Time, Inc.,
468 U.S. 641, 652 (1984). Indeed, Crugher’s argument is foreclosed by Diaz where we
explicitly stated that § 2617(a)(1)(B) providing for equitable relief is constitutional:

       Congress did not have to abrogate sovereign immunity where a state
       employee sues a state official in his or her official capacity seeking
       equitable, prospective relief in the form of reinstatement for violations
       of the self-care provision because the Eleventh Amendment does not act
       as a bar to such suits in the first instance. Section 2617(a)(1)(B) was,
       therefore, a constitutional exercise of Congress’s powers.

Diaz, 703 F.3d at 964 (emphasis added). Diaz thus indicates that Crugher’s claim is not
an “Ex parte Young claim,” but rather a claim by a state employee seeking reinstatement
directly under § 2617(a)(1)(B).

       Finally, accepting Crugher’s position would accord a reinstatement action by a
state employee against a state official a longer statute-of-limitations period than an
action brought by a private employee against a private employer. There is no basis for
No. 13-2425           Crugher v. Prelesnik                                                    Page 10


this distinction. Indeed, the Ex parte Young exception is based on a legal fiction that “a
state official who enforces [a] law ‘comes into conflict with the superior authority of
[the] Constitution,’ and therefore is ‘stripped of his official or representative character
and is subjected in his person to the consequences of his individual conduct.” Stewart,
131 S. Ct. 1632 (second bracket in original). It follows, then, that the official who is
now treated as an individual based on Ex parte Young should be subjected to the same
statute-of-limitations period as any other private employer. Thus, because the FMLA
expressly provides a cause of action for equitable relief, it is appropriate to apply the
statute of limitations in the FMLA instead of looking to an analogous state statute or the
general federal statute of limitations for civil actions contained in 28 U.S.C. § 1658(a).

         For these reasons, we hold that the two-year statute of limitations period
contained in the FMLA applies to reinstatement claims brought by state employees
against state officials under § 2617(a)(1)(B).

                                                  B.

         In an attempt to overcome the fact that he did not file his claim within the two-
year limitations period required under the FMLA, Crugher says that he alleged a willful
violation allowing him to take advantage of the FMLA’s three-year limitations period.
This argument lacks merit.

         Under our precedents, the central inquiry in determining whether a violation of
the FMLA is willful is “whether the employer intentionally or recklessly violated the
FMLA.” Hoffman v. Prof’l Med Team, 394 F.3d 414, 417 (6th Cir. 2005). A plaintiff
“must do more than make the conclusory assertion that a defendant acted willfully.”
Katoula v. Detroit Entm’t, LLC, ___ F. App’x ___, 2014 WL 783099, at *2 (6th Cir.
Feb. 27, 2014).9 Indeed, “[a]s we have explained in a non-FMLA context, although
conditions of a person’s mind may be alleged generally, ‘the plaintiff still must plead
facts about the defendant’s mental state, which, accepted as true, make the state-of-mind


         9
           Although in Ricco v. Potter, 377 F.3d 599 (6th Cir. 2004) we held that a conclusory statement
of willfulness was sufficient to survive a motion to dismiss, Ricco predated Iqbal and Twombly. See
Katoula, 2014 WL 783099, at *2 n.1.
No. 13-2425        Crugher v. Prelesnik                                           Page 11


allegation ‘plausible on its face.’ ” Id. (quoting Republic Bank & Trust Co. v. Bear
Stearns & Co., 683 F.3d 239, 247 (6th Cir. 2012)).

       Here, Crugher’s complaint is devoid of any allegations supporting a finding of
willfulness. The allegations in the complaint, if accepted as true, only establish a causal
connection between Crugher’s termination and his FMLA leave. There are no factual
allegations that Prelesnik, or any other MDOC employee, acted intentionally or
recklessly to violate Crugher’s rights under the FMLA. At best, the complaint can be
read to state a claim that MDOC employees were negligent in interpreting Crugher’s
rights under the FMLA as they interrelated with his use of sick leave. This is not enough
to support a finding of willfulness.

                                            C.

       Alternatively, Crugher says that the district court erred in denying his motion to
amend to allege willfulness. Crugher says that had he been able to amend the complaint,
he would have supported his allegations of willfulness with an e-mail authored by
Prelesnik in 2007 when he was employed as warden of the Richard A. Handlon
Correctional Facility. In the e-mail Prelesnik sent to department heads, he stated:

       Time and attendance has once again become a problem on the part of
       some staff. I am directing all supervisors to monitor staffs patterns of
       sick leave and or annual leave abuse. . . I do not like the negative
       approach but I intend to hold abusers accountable. Supervisors are to use
       progressive discipline to help resolve this problem.
       Personnel will monitor abuse of the family medical act. . . We will be
       asking the medical provider if the pattern of use is consistent with the
       employees medical need. We will repeat this process ever[y] thirty days
       as the employee renews the leave. . .
       Medical appointments must be made thirty days in advance of use and
       given to the supervisors. The family medical act allows the employer to
       know 30 days in advance of scheduled medical appointments to allow the
       employer to plan its operations. Last minute call in for a medical
       appointment will not qualify under the family medical act.

       Unfortunately for Crugher, even if he were permitted to amend his complaint to
add facts relevant to Prelesnik’s e-mail, he fails to establish a plausible claim of
No. 13-2425        Crugher v. Prelesnik                                          Page 12


willfulness. First, the substance of the e-mail does not support a finding of willfulness.
The e-mail merely shows that Prelesnik was attempting to limit abuses of FMLA leave.
Second, the e-mail does not relate to anything done at ICF relating to Crugher.
Therefore, as the district court correctly found, allowing Crugher to amend his complaint
would be futile.

                                           IV.

       For the reasons stated above, we AFFIRM the district court’s opinion.
No. 13-2425        Crugher v. Prelesnik                                           Page 13


                                  _________________

                                        DISSENT
                                  _________________

        CLAY, Circuit Judge, dissenting. The majority concludes that this action is
untimely pursuant to the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601
et seq., even though it was brought under Ex parte Young, 209 U.S. 123 (1908). The
majority is wrong on two counts. First, Plaintiff has pleaded a willful violation of the
FMLA, and therefore his complaint is timely under the applicable three-year statute of
limitations, 29 U.S.C. § 2617(c)(2). Second, in the alternative, this Court should hold
that Congress’ default four-year statute of limitations, 28 U.S.C. § 1658(a), applies to
Ex parte Young claims asserting violations of the FMLA. Because this action as pleaded
was timely, I respectfully dissent.

                                      BACKGROUND

        Plaintiff Corey Crugher started work for the Michigan Department of Corrections
(“MDOC”) in 1994. In 1999, Plaintiff developed a chronic medical condition, identified
as generalized anxiety disorder and irritable bowel syndrome, that caused periodic flare-
ups, preventing him from performing his usual job responsibilities. Plaintiff first took
leave in March 2007 under the FMLA’s self-care provision, 29 U.S.C. § 2612(a)(1)(D).
In November 2009, Plaintiff was transferred to Ionia Maximum Correctional Facility
(“Ionia”), where Defendant John Prelesnik is warden. Defendant had a history of
scrutinizing employees who availed themselves of FMLA leave. In June 2007, while
Defendant was the warden of a different MDOC facility, he sent the following e-mail to
his staff:

        Time and attendance has once again become a problem on the part of
        some staff. I am directing all supervisors to monitor staffs patterns of
        sick leave and or annual leave abuse. The State budget is in poor
        condition and over time is up at [the correctional facility] that is not in
        our budget. There are no funds to supplement the budget. As such I am
        directing a close review of abusive patterns. . . . Personnel will monitor
        abuse of the family medical act [sic].
No. 13-2425        Crugher v. Prelesnik                                           Page 14


(R. 8-1, Pl.’s Mot. to Dismiss Opp’n Ex. A, at 124.)

       Plaintiff continued to suffer from his medical condition while at Ionia, and
continued to take periodic FMLA leave. But in February 2010, Plaintiff received a
memo chiding him for taking too much time off. On April 15, 2010, Constance Partee,
Ionia’s human resources manager, placed Plaintiff on “interim rating” for improperly
taking FMLA leave. The interim rating warned Plaintiff that his “time and attendance
will be closely monitored for unscheduled absences.” (R. 1-5, Compl. Ex. E., at 20.)
On September 17, 2010, Plaintiff’s supervisor “commend[ed]” Plaintiff for his
compliance with the interim rating. (R. 1-6, Compl. Ex. F, at 23.) But in approximately
October 2010, Plaintiff was apparently placed back on interim rating for a period of 180
days. This interim rating was written by “Sgt. B. Wenzel,” and is unsigned and undated.
Sgt. Wenzel accused Plaintiff of repeatedly violating time and attendance requirements
by taking leave on several occasions from August to October 2010. Plaintiff alleges that
he was not presented with this document until after his termination and asserts that he
was never placed on a second interim rating.

       On November 22, 2010, Plaintiff was approved for intermittent FMLA leave for
a six-month period. Plaintiff supported his application for leave with a Certification of
Employee’s Serious Health Condition completed by Dr. David Mohlman. Dr. Mohlman
certified that he had treated Plaintiff on multiple occasions for his medical condition;
that Plaintiff would probably be afflicted for the rest of his life; and that Plaintiff’s
symptoms included “severe abdominal pain, diarrhea, bleeding, cramping, [and]
fatigue.” (R. 1-8, Compl. Ex. H, at 29.) Despite this certification, on November 23,
2010, Partee placed Plaintiff on another interim rating for noncompliance with MDOC
leave policies. Plaintiff alleges that he also was not presented with this interim rating.

       On December 31, 2010, Plaintiff received his annual rating—“Meets
Expectations.” (R. 1-11, Compl. Ex. K, at 36.) Among other things, Plaintiff was given
this satisfactory rating for his integrity and honesty, defined as “displaying high
standards of ethical conduct and understanding the impact of violating these standards
on the organization, staff, and others; being trustworthy.” (Id. at 39.) Nevertheless, on
No. 13-2425            Crugher v. Prelesnik                                                       Page 15


January 11, 2011, Plaintiff was terminated from his position at MDOC, ostensibly as a
final resolution of his second interim rating. Plaintiff’s union filed a grievance, but that
process ended with the conclusion that Plaintiff was fired for failing to improve his
behavior during his second interim rating.

         On April 16, 2013, two years and three months after he was fired, Plaintiff filed
a one-count complaint in the Western District of Michigan seeking reinstatement for
violations of the FMLA pursuant to Ex parte Young. Defendant moved to dismiss
pursuant to Fed. R. Civ. P. 12(b)(1) and (b)(6), and the district court granted the motion.
Crugher v. Prelesnik, No. 13-CV-416, 2013 WL 5592969 (W.D. Mich. Oct. 10, 2013).
The district court held that Defendant was not the proper target for an Ex parte Young
suit since Defendant was not personally “involved in the violation of [Plaintiff’s] rights
under the FMLA.”1 Id. at *3. The district court further held that Plaintiff’s suit was
barred by the FMLA’s statute of limitations. See id. at *3–4. This appeal timely
followed.

                                            DISCUSSION

         The FMLA’s self-care provision allows an eligible employee to take up to twelve
weeks of leave “[b]ecause of a serious health condition that makes the employee unable
to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D).
States are immune from suit for violations of the self-care provision. See Coleman v.
Court of Appeals of Md., 132 S. Ct. 1327, 1332 (2012). But plaintiffs can bring suit for
these violations against individual state officers for prospective relief—including
reinstatement—under Ex parte Young. See Diaz v. Mich. Dep’t of Corr., 703 F.3d 956,
966 (6th Cir. 2013). The statute of limitations for FMLA actions is two years; three
years if the violation is willful. See 29 U.S.C. § 2617(c). The majority concludes that
the FMLA’s statute of limitations applies to Plaintiff’s Ex parte Young claim. Even if
         1
           The majority does not address this prong of the district court’s ruling, which is undoubtedly
incorrect. Plaintiff’s Ex parte Young claim seeks reinstatement to remedy a “continuing violation of
federal law.” Green v. Mansour, 474 U.S. 64, 68 (1985) (emphasis added). Determining whether Plaintiff
is entitled to reinstatement requires an examination of historical events, but the relief sought is entirely
prospective. See Diaz v. Mich. Dep’t of Corr., 703 F.3d 956, 965 (6th Cir. 2013); Carten v. Kent State
Univ., 282 F.3d 391, 396 (6th Cir. 2002). I would therefore hold that the proper defendant in an Ex parte
Young action for reinstatement is not the official personally involved in a plaintiff’s termination, but the
official that has the authority under state law to reinstate the plaintiff.
No. 13-2425        Crugher v. Prelesnik                                           Page 16


this were correct, the FMLA’s limitations scheme still mandates reversal since Plaintiff
has pleaded a willful violation of the statute.

       “An employer commits a willful violation of the FMLA when it acts with
knowledge that its conduct is prohibited by the FMLA or with reckless disregard of the
FMLA’s requirements; therefore, the determination of willfulness involves a factual
question.” Ricco v. Potter, 377 F.3d 599, 602 (6th Cir. 2004). Plaintiff alleges that he
received permission to take FMLA leave, received positive performance reviews, and
was commended for adhering to the interim rating he received for leave-related
irregularities. Nevertheless, Plaintiff was terminated—apparently for failing to improve
his behavior after receiving a second interim rating. But Plaintiff alleges that he never
received this interim rating, or the follow-up communication from Partee.             The
documentary evidence supports Plaintiff’s allegation. The second interim rating was not
signed by the officer who supposedly authored it, nor was it signed by Plaintiff to
indicate receipt. The Partee memo was issued just one day after Plaintiff was formally
approved for FMLA leave. These allegations and the supporting documentary evidence
“allow[] [us] to draw the reasonable inference” that Plaintiff’s employer was assembling
a bogus dossier with the intent to fire him. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In other words, Plaintiff has plausibly alleged that Defendant was aware of his
obligations under the FMLA, but tried to “affirmatively evade[] them.” Hoffman v.
Prof’l Med Team, 394 F.3d 414, 419 (6th Cir. 2005). Because Plaintiff has pleaded a
willful violation of the statute and has brought his claim within three years of his
termination, I would reverse the district court and remand for further proceedings.

       But even if the majority were correct and the alleged violation was not willful,
we should still reverse on the basis that this is an Ex parte Young cause of action, not an
FMLA cause of action. The Eleventh Amendment bars private suits against a state
“regardless of the nature of the relief sought,” Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100 (1984), but subject to exceptions. A state may consent to
suit, or Congress may abrogate state sovereign immunity pursuant to § 5 of the
Fourteenth Amendment. See Coleman, 132 S. Ct. at 1333. In addition, under Ex parte
No. 13-2425            Crugher v. Prelesnik                                                     Page 17


Young, a plaintiff can bring a suit against a state official for prospective relief to end an
“ongoing violation of federal law.” Verizon Md. Inc. v. Pub. Serv. Comm’n of Md.,
535 U.S. 635, 645 (2002) (quotation marks omitted). Ex parte Young does not simply
provide a jurisdictional exception with regard to the Eleventh Amendment—it
recognizes that a “cause of action” to ensure compliance with a federal statute “is
implied under the Supremacy Clause.” Chase Bank USA, N.A. v. City of Cleveland, 695
F.3d 548, 554 (6th Cir. 2012).2

         Even though the Ex parte Young cause of action springs from a constitutional
source, Congress can regulate its contours with respect to particular statutory rights. On
one extreme, “where Congress has prescribed a detailed remedial scheme for the
enforcement against a State of a statutorily created right,” this fact militates against
recognizing an Ex parte Young cause of action to enforce the same statute. Seminole
Tribe of Fla. v. Florida, 517 U.S. 44, 74 (1996). We held in Diaz that the FMLA’s
remedial scheme was not robust enough to crowd out an Ex parte Young remedy. See
Diaz, 703 F.3d at 966. But we did not affirmatively address whether Congress intended
to regulate procedures for Ex parte Young actions to enforce FMLA rights. Seminole
Tribe suggests that to answer this question, we should consider whether the regulatory
scheme refers only to duties and remedies applied to states as entities, or whether the
scheme “is broad enough to encompass both a suit against a State (under [a Fourteenth
Amendment] abrogation theory) and a suit against a state official (under an Ex parte
Young theory).” Seminole Tribe, 517 U.S. at 75 n.17. Thus a statute that authorizes suit
against a state official, a state’s governor, or even “‘any person,’” would mean that
Congress intended to allow an Ex parte Young suit and regulate the procedures for
bringing it. Id. (quoting 33 U.S.C. § 1365(a)).



         2
           We are not alone in this holding. See New Orleans & Gulf Coast Ry. v. Barrois, 533 F.3d 321,
330 (5th Cir. 2008); Joseph A. ex rel. Wolfe v. Ingram, 275 F.3d 1253, 1265 (10th Cir. 2002); Burgio &
Campofelice, Inc. v. N.Y. State Dep’t of Labor, 107 F.3d 1000, 1006 (2d Cir. 1997); Guar. Nat’l Ins. Co.
v. Gates, 916 F.2d 508, 512 (9th Cir. 1990). The majority’s jurisdiction-only interpretation of Ex parte
Young closely tracks Justice Souter’s opinion in Seminole Tribe of Florida v. Florida, 517 U.S. 44, 177–78
(1996) (Souter, J., dissenting). One small point—Justice Souter lost. And as explained below—and
contrary to the contention in footnote 8 of the majority opinion—the FMLA does not expressly provide
a cause of action for equitable relief to enforce the statute’s self-care provision.
No. 13-2425         Crugher v. Prelesnik                                           Page 18


        Looking at the FMLA through the Seminole Tribe lens, we see that the statute
imposes duties that tend to be the “sort likely to be performed by an individual state
executive officer.” Id. But any notion that the FMLA itself authorizes suits against
individual state officials begins and ends with our decision in Mitchell v. Chapman, 343
F.3d 811 (6th Cir. 2003). In Mitchell, we performed a detailed textual analysis of the
FMLA’s definition of “employer,” which includes “a public agency,” as well as “any
person who acts, directly or indirectly, in the interest of an employer to any of the
employees of such employer.” 29 U.S.C. § 2611(4). Since the statute also allows for
suits seeking “damages or equitable relief . . . against any employer (including a public
agency),” 29 U.S.C. § 2617(a)(2), a casual reader might conclude that the FMLA
authorizes suits against the agents of public agencies. Wrong. The FMLA’s definition
of employer excludes these public officers. See Mitchell, 343 F.3d at 832. The majority
brushes off Mitchell’s textual analysis, and claims that even though individual state
officials cannot be sued for damages, the FMLA allows equitable suits against them in
their representative capacities. Wrong again. A suit against a state officer in his official
capacity is nothing more than a suit against the agency itself. See Will v. Mich. Dep’t
of State Police, 491 U.S. 58, 71 (1989). Since the Eleventh Amendment bars suits
against a state to enforce the FMLA’s self-care provision, it equally bars suits against
a state’s alter ego—and remember, the Eleventh Amendment bars equitable suits just as
it bars suits for damages. See Pennhurst, 465 U.S. at 100. It is only through Ex parte
Young that an officer acquires a quantum state—at once “stripped of his official or
representative character,” Ex parte Young, 209 U.S. at 160, and “responsible in his
official capacity for enforcing a state law.” Carten v. Kent State Univ., 282 F.3d 391,
396 (6th Cir. 2002). This necessary legal fiction is nowhere to be found in the FMLA.

        Even though interpreting the FMLA with reference to Ex parte Young is not
without difficulty, we should be guided above all by the statute’s text. The FMLA does
not allow suits against state officials in their individual capacities, and does not discuss
suits against them in their representative capacities. We should therefore hold that the
procedures of the FMLA do not apply to Ex parte Young actions that seek to enforce the
No. 13-2425         Crugher v. Prelesnik                                          Page 19


statute’s substantive provisions. As a result, the FMLA’s limitations scheme would not
apply to Plaintiff’s Ex parte Young cause of action.

       If the FMLA’s statute of limitations would not apply to Plaintiff’s claim of its
own force, we must look to some other source for the rule. Traditionally, we would
borrow the analogous statute of limitations from state law, see Wilson v. Garcia,
471 U.S. 261, 275 (1985), or perhaps from federal law, if the state limitations period
would “frustrate or interfere with the implementation of national policies, or be at odds
with the purpose or operation of federal substantive law.” N. Star Steel Co. v. Thomas,
515 U.S. 29, 34 (1995) (quotation marks and citations omitted). But Congress has done
away with the need to search for analogous laws by enacting a default four-year statute
of limitations that applies to all claims “arising under an Act of Congress enacted after”
December 1, 1990. 28 U.S.C. § 1658(a). Even though Ex parte Young provides the
remedial vehicle, Plaintiff’s claim still arises under the FMLA, insofar as his hoped-for
“relief necessarily depends on resolution of a substantial question of federal law.”
Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 690 (2006) (quotation
marks omitted) (construing 28 U.S.C. § 1331); see also Jones v. R.R. Donnelley & Sons
Co., 541 U.S. 369, 382 (2004) (holding that § 1658(a) applies if the plaintiff’s claim
“was made possible by a post-1990 enactment”). The FMLA was enacted after
December 1, 1990, and Plaintiff’s Ex parte Young claim arises under that statute.
Plaintiff’s claim is thus timely under the four-year statute of limitations of § 1658(a).

                                    CONCLUSION

       Plaintiff has pleaded a willful violation of the FMLA and therefore his complaint
is timely. In the alternative, this claim is timely under Congress’ default four-year
statute of limitations. I therefore respectfully dissent.
