                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 14a0242n.06

                                               No. 13-3564                                         FILED
                                                                                            Mar 31, 2014
                            UNITED STATES COURT OF APPEALS                              DEBORAH S. HUNT, Clerk
                                 FOR THE SIXTH CIRCUIT


COLLEEN CIMERMAN,                                              )         ON APPEAL FROM THE
                                                               )         UNITED STATES DISTRICT
       Plaintiff-Appellant,                                    )         COURT FOR THE NORTHERN
                                                               )         DISTRICT OF OHIO
                 v.                                            )
                                                               )
GARY COOK,                                                     )
                                                               )
       Defendant-Appellee.                                     )
                                                               )



BEFORE: BOGGS, ROGERS, Circuit Judges, and STEEH, District Judge.*

       ROGERS, Circuit Judge. Colleen Cimerman, a former criminal bailiff, sued Judge Gary

Cook of the Lucas County Court of Common Pleas under the Family and Medical Leave Act

(“FMLA”) of 1993. Cimerman alleged that he violated her FMLA rights by refusing to let her

return to work and, ultimately, terminating her after she sought to return from FMLA leave.

Cimerman now appeals the district court’s dismissal of her claim seeking injunctive relief against

Judge Cook in his official capacity. Because state officials may be sued in their official capacities

for injunctive relief to remedy violations of the FMLA self-care provision, the district court erred

in dismissing Cimerman’s official capacity FMLA claim seeking prospective relief against Judge

Cook on the grounds that Judge Cook was “in effect, the Common Pleas Court.”



             *
             The Honorable George C. Steeh, III, United States District Judge for the Eastern District of
     Michigan, sitting by designation.
No. 13-3564, Cimerman v. Cook


       Starting in 1999, Cimerman worked as a bailiff for the Lucas County Court of Common

Pleas and, beginning in 2004, was assigned to work as a criminal bailiff for Judge Cook. In

December 2010, Cimerman took an approved medical leave pursuant to the FMLA for anxiety and

depression. Cimeman alleges that on or about December 17, 2010, while she was on leave, Judge

Cook called Cimerman at home and “screamed at her, demanding to know the meaning and source

of her anxiety and depression.” Cimerman returned to work on January 18, 2011, but was not

permitted to return to her courtroom.

       After two meetings with Judge Cook and Donald Colby, the Court Administrator, Cimerman

was placed on paid administrative leave and stripped of her duties as criminal bailiff. Cimerman

alleges that at the second meeting Judge Cook screamed at her and “lambasted [her] at length” for

work Cimerman had not done before and during her FMLA leave. Cimerman alleges that at their

third and final meeting, which was also attended by Cimerman’s legal counsel and Jim Walters of

the Lucas County Prosecutor’s Office, Judge Cook accused Cimerman of not opening mail that was

received during her leave and failing to process certain court items. On February, 11, 2011, Judge

Cook sent Cimerman a letter terminating her employment.

       Cimerman filed suit against Judge Cook, in both his official and individual capacities, under

the FMLA, 29 U.S.C. § 2601 et seq. Cimerman’s one-count complaint alleged that Judge Cook

violated her rights under the FMLA, in particular 29 U.S.C. § 2615, by interfering with, restraining,

or denying Cimerman the exercise of rights provided under the FMLA and/or retaliating against

Cimerman by discharging her for asserting or otherwise exercising her rights under the FMLA. The

complaint sought compensatory and liquidated damages, attorney’s fees and costs, and “such

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No. 13-3564, Cimerman v. Cook


equitable relief as is proper as compensation” for her lost opportunity to engage in gainful

employment.

        Judge Cook moved to dismiss the claims against him in his individual capacity and official

capacity, respectively. The district court granted the motion to dismiss all individual-capacity

claims, as well as the official-capacity claims for monetary relief, but denied the motion insofar as

the official-capacity FMLA claim sought injunctive relief.

        Judge Cook moved to reconsider, arguing that he does not qualify as an FMLA employer and

that this decision conflicted with another decision recently issued by the same court on the same

subject, Horen v. Cook, 910 F. Supp. 2d 1025 (N. D. Ohio 2012), aff'd on other grounds, No.

12-4544, 2013 WL 5583723 (6th Cir. Oct. 10, 2013). In that case, which involved an FMLA

retaliation claim for an alleged violation of FMLA family-care provisions, the district court held that

a judge did not qualify as an FMLA employer because “a suit in her official capacity amounts to a

suit against the court for which the judge serves” and in Ohio a court is not an entity sui juris.

Horen, 910 F. Supp. 2d at 1028–29. The district court also determined that the plaintiff in Horen

was not an FMLA employee. Id. at 1032.1

        The district court granted Judge Cook’s motion for reconsideration, vacated the portion of

the court’s prior decision denying Judge Cook’s motion to dismiss Cimerman’s official-capacity

FMLA claim, and granted the motion to dismiss. The district court determined that Judge Cook is

not subject to suit because, sued in his official capacity, he is, “in effect, the Common Pleas Court,”

               1
                  We affirmed the decision granting summary judgment in favor of the judge in that case. Horen
      v. Cook, 12-4544, 2013 WL 5583723 (6th Cir. Oct. 10, 2013). We held that plaintiff, a former law clerk,
      was a member of the judge’s “personal staff” and therefore not an “employee” for FMLA purposes, and
      declined to address whether the judge qualified as a FMLA “employer.” We thus did not address the
      district court’s reasoning on the point at issue in this case. Id. at 3–6.
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No. 13-3564, Cimerman v. Cook


which cannot sue or be sued in its own right. Cimerman timely appealed the district court order

granting Judge Cook’s motion for reconsideration. Cimerman concedes that the district court was

correct in dismissing her claims against Judge Cook in his individual capacity, and Cimerman seeks

only to establish that equitable relief can be awarded against Judge Cook under the FMLA in his

official capacity.

        The district court’s analysis does not support immunity for Judge Cook in his official

capacity. “The only immunities that can be claimed in an official-capacity action are forms of

sovereign immunity that the entity, qua entity, may possess, such as the Eleventh Amendment.”

Kentucky v. Graham, 473 U.S. 159, 167 (1985). However, although the Eleventh Amendment bars

“any suit in law or equity, commenced or prosecuted against one of the United States,” Ex parte

Young permits official capacity suits against state officials for injunctive relief to stop violations of

federal law. 209 U.S. 123 (1908); Ernst v. Rising, 427 F.3d 351, 358 (6th Cir. 2005).

        This court has held that claims against state officials in their official capacity seeking

equitable, prospective relief in the form of reinstatement to enforce their purported FMLA rights to

self-care leave are permissible under the Ex parte Young exception to the Eleventh Amendment.

Diaz v. Michigan Dep’t of Corr., 703 F.3d 956, 964–66 (6th Cir. 2013); see also 29 U.S.C.

§ 2617(a)(1)(B). In Diaz, we explained that, even in cases against state officials involving the

FMLA’s self-care provision—which, unlike other FMLA provisions, did not abrogate state

sovereign immunity—“[t]he Supreme Court and this Circuit barred suits for damages only, not for

equitable relief.” Diaz, 703 F.3d at 964. Thus, assuming as we do that Cimerman’s claim falls

under the FMLA’s self-care provision, 29 U.S.C. § 2612(a)(1)(D), it is nonetheless clear that the

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No. 13-3564, Cimerman v. Cook


Eleventh Amendment does not bar Cimerman’s claim for prospective relief against a state official,

Judge Cook, in his official capacity for violations of the FMLA.

          The fact that the court cannot sue or be sued has no bearing on Judge Cook’s ability to be

sued in his official capacity. The Supreme Court of Ohio has long held that the Ohio Courts of

Common Pleas are not sui juris and are not eligible to sue or be sued absent specific statutory

authority. State ex rel. Cleveland Mun. Court v. Cleveland City Council, 34 Ohio St. 2d 120, 121

(1973). However, the theory of Ex parte Young distinguishes individuals from the state entity. The

Supreme Court has long held that “official-capacity actions for prospective relief are not treated as

actions against the State.” Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 n.10 (1989)

(quoting Kentucky v. Graham, 473 U.S. at 167 n.14). Indeed, in Ex parte Young, Attorney General

Young was an officer of a state where the state could not be sued. See Ex parte Young, 209 U.S. 123

(1908).

          In line with this distinction, suits against Ohio judges have been permitted to proceed when

plaintiffs allege violations of the FMLA and similar statutes. In one recent case, a former security

officer for the Hamilton County, Ohio Juvenile Court sued an Administrative Law Judge in her

official capacity, seeking injunctive relief for a violation of the FMLA’s self-care provision. There,

the district court permitted the official-capacity claim to proceed against the state judge to the extent

the plaintiff sought “proper prospective relief”—an injunction prohibiting further unlawful conduct

and prospective reinstatement—but dismissed all other FMLA claims against the judge “to the

extent [plaintiff sought] retroactive and compensatory damages.” Smith v. Grady, 1:11-CV-328,

2013 WL 249677, at *14, *17 (S.D. Ohio Jan. 23, 2013) (noting that the juvenile court is a

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No. 13-3564, Cimerman v. Cook


subdivision of the Hamilton County Court of Common Pleas). See also, Martin v. Licking Cnty.

Common Pleas Court Juvenile Div., 2005 WL 1073367 (S.D. Ohio Apr. 22, 2005); Stewart v. Lucas

Cnty. Juvenile Court, 2009 WL 3242053, at *4, *6 (N.D. Ohio Oct. 2, 2009).

       A district court in Pennsylvania also reached the same conclusion on facts similar to this

case. In Harter v. Cnty. of Washington, the court denied defendant’s motion to dismiss an official

capacity claim seeking prospective relief against the court administrator of a Pennsylvania county

court of common pleas for violation of the FMLA self-care provision. CIV.A. 11-588, 2011 WL

6116461, at *4 (W.D. Pa. Dec. 8, 2011). This outcome is instructive because, like Ohio state courts,

Pennsylvania state courts are not sui juris.

       The FMLA creates a private right of action to seek equitable relief and money damages

“against any employer (including a public agency) in any Federal or State court of competent

jurisdiction.” 29 U.S.C. § 2617(a)(2); Coleman v. Court of Appeals of Maryland, 132 S. Ct. 1327,

1332 (2012). Because the doctrine of Ex parte Young preserves the suit for equitable relief from

dismissal on immunity grounds, it was error to dismiss the suit in this case simply for lack of

capacity to be sued under state law.

       We decline to address several alternative bases that may support dismissal of this suit. These

may be considered by the district court on remand. In particular, we do not address Judge Cook’s

argument before us that he is not an employer under the FMLA. We also do not address whether

Cimerman, as Judge Cook’s court reporter, is not an eligible “employee” for FMLA purposes under

the exception for “personal staff.” In Horen v. Cook, we applied a multi-factor analysis and held

that a former law clerk of a different Judge Cook was a member of the judge’s “personal staff” and

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No. 13-3564, Cimerman v. Cook


thus was not covered under the FMLA. Horen, 2013 WL 5583723, at *4. Finally, we do not

address whether the termination of an employee constitutes a “continuing violation” of federal law.

“In order to fall within the Ex parte Young exception, a claim must seek prospective relief to end

a continuing violation of federal law.” Diaz, 703 F.3d at 964.

       The judgment of the district court is reversed and remanded for further proceedings

consistent with this opinion.




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