                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 14a0161n.06
                                                                                    FILED
                                         No. 13-1844                          Feb 27, 2014
                                                                          DEBORAH S. HUNT, Clerk

                         UNITED STATES COURTS OF APPEALS
                              FOR THE SIXTH CIRCUIT

DAVID KATOULA and NAHLA KATOULA,                       )
                                                       )
       Plaintiffs-Appellants,                          )
                                                       )
v.                                                     )      ON APPEAL FROM THE
                                                       )      UNITED STATES DISTRICT
DETROIT ENTERTAINMENT, LLC, dba Motor                  )      COURT FOR THE EASTERN
City Casino,                                           )      DISTRICT OF MICHIGAN
                                                       )
       Defendant-Appellee.                             )
                                                       )



BEFORE:       GUY, GIBBONS, and ROGERS, Circuit Judges.

       ROGERS, Circuit Judge. David and Nahla Katoula appeal the district court’s grant of

MotorCity Casino’s motion to dismiss the Katoulas’ FMLA complaint. MotorCity fired David

Katoula after he requested leave from work, pursuant to a previously authorized intermittent

leave, to take his mother to the doctor, but failed to do so because his car was stolen. The

Katoulas filed their complaint after the FMLA’s two-year statute of limitations period elapsed.

In order to take advantage of the FMLA’s three-year limitations period for willful violations,

they were required to prove that MotorCity’s actions willfully violated the FMLA. MotorCity

did not willfully violate the FMLA by denying FMLA leave to Katoula for the day he took off.

Furthermore, the Katoulas’ theory that MotorCity coerced Katoula into lying about why he had

missed work so that the casino would have a pretext for firing him for taking FMLA leave is not
No. 13-1844
David Katoula v. Detroit Entertainment, LLC

plausible. Accordingly, the district court properly determined that the Katoulas’ claim was time-

barred.

          David Katoula worked for MotorCity Casino as a dealer and floor supervisor. On an

unspecified date prior to the incidents that gave rise to this lawsuit, Katoula received permission

to take intermittent FMLA leave to care for his mother. See 29 U.S.C. § 2612(a)(1)(C). On July

31, 2009, Katoula needed to take his mother to the doctor. But before Katoula could inform

anyone at MotorCity that he would miss work to care for his mother, Katoula learned that his car

had been stolen. Katoula then called MotorCity and said that he would not be at work because

he needed to take his mother to the doctor and deal with the stolen car. Katoula made a police

report, and reported to work thereafter. But because of the delay caused by filing the police

report, Katoula never took his mother to the doctor’s office.

          When Katoula arrived at work, he explained what happened to his supervisor, Scott

Romano. Romano then allegedly told Katoula to fill out a form and write that Katoula had

missed work for an approved FMLA purpose. The next day, MotorCity supervisors called

Katoula into an office and proceeded to interrogate him about why he had missed work.

According to Katoula, due to the stress of the interrogation, Katoula wrote a statement that

explained that his previous statement had been mistaken—he had not missed work for an

approved FMLA purpose. Later that day, MotorCity supervisors informed Katoula that he could

be subject to discipline for lying, interrogated him further, and gave him an opportunity to make

an additional statement. Katoula chose to make a full written statement that essentially recited

the above facts. After the meeting ended, MotorCity suspended Katoula and eventually fired

him.




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No. 13-1844
David Katoula v. Detroit Entertainment, LLC

       Approximately two-and-a-half years later, the Katoulas sued MotorCity. Their complaint

alleged that MotorCity had violated David Katoula’s rights under the FMLA, and Nahla Katoula

alleged loss of consortium. MotorCity moved to dismiss because the Katoulas filed suit after the

two-year statute of limitations period had expired and had not alleged that MotorCity acted

willfully, which would have extended the limitations period to three years. The district court

agreed, but gave the Katoulas an opportunity to cure their deficient complaint. The Katoulas

filed an amended complaint containing additional facts, and MotorCity again moved to dismiss.

The district court granted the motion because the court concluded that the amended complaint

did not contain facts that presented a plausible claim that MotorCity acted willfully. The court

also reasoned that the complaint did not allege facts that could support a prima facie claim under

the FMLA. The Katoulas appealed.

       The district court properly granted MotorCity’s motion to dismiss. The Katoulas filed

their complaint after the two-year limitations period elapsed, and have not plausibly alleged

sufficient facts to show that MotorCity willfully violated the FMLA. 29 U.S.C. § 2617(c)(1)–

(2). The Katoulas argue that the complaint established that MotorCity supervisors understood

that they could not terminate Katoula for exercising his rights under the FMLA, and that

supervisors intentionally coerced Katoula into changing his story so that they could fire him for

lying as a pretext for Katoula’s declaring his intention to take FMLA leave. They argue that

these facts state a claim for relief under both an interference and a retaliation theory. Appellant’s

Br. at 14–15; see also Edgar v. JAC Prods., Inc., 443 F.3d 501, 507 (6th Cir. 2006).

       The plaintiffs’ interference claim fails because it is not plausible that MotorCity willfully

interfered with Katoula’s FMLA rights. An interference claim turns on whether an employer

failed to provide its employee benefits guaranteed by the FMLA. JAC Prods., 443 F.3d at 507.


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No. 13-1844
David Katoula v. Detroit Entertainment, LLC

To prove willfulness, the Katoulas would need to show that MotorCity “act[ed] with knowledge

that its conduct is prohibited by the FMLA or with reckless disregard of the FMLA’s

requirements.” Ricco v. Potter, 377 F.3d 599, 602 (6th Cir. 2004). Furthermore, after the

Supreme Court’s decisions in Iqbal and Twombly,1 a plaintiff must do more than make the

conclusory assertion that a defendant acted willfully. The Supreme Court specifically addressed

state-of-mind pleading in Iqbal, and explained that Rule 9(b)—which allows a plaintiff to plead

“[m]alice, intent, knowledge, and other conditions of a person’s mind . . . generally”—does not

give a plaintiff license to “plead the bare elements of his cause of action . . . and expect his

complaint to survive a motion to dismiss.” Iqbal v. Ashcroft, 556 U.S. 662, 678, 79 (2009). As

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 allegation ‘plausible on its face.’” Republic Bank &

Trust Co. v. Bear Stearns & Co., 683 F.3d 239, 247 (6th Cir. 2012) (quoting Iqbal, 556 U.S. at

678).

        The Katoulas’ complaint contains no facts that allow a court to infer that MotorCity knew

or acted with reckless disregard of the fact that it was interfering with Katoula’s rights. An

employee cannot prevail on an interference claim without demonstrating that an employer denied

the employee a right he or she was entitled to under the FMLA. See Hoge v. Honda of Am. Mfg.,

Inc., 384 F.3d 238, 244 (6th Cir. 2004). It is not clear whether Katoula was in fact entitled to

leave on July 31 given the fact that he did not actually use that time to care for his mother. The

FMLA entitles eligible employees to up to twelve weeks of leave to “care for the spouse, or a


1
 Although we held in Ricco, 377 F.3d at 603, that a statement of willfulness was sufficient, that
case preceded Iqbal and Twombly.

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No. 13-1844
David Katoula v. Detroit Entertainment, LLC

son, daughter, or parent, of the employee . . . [if that family member] has a serious health

condition.” 29 U.S.C. § 2612(a)(1)(C). The FMLA does not entitle an employee to leave for a

purpose not enumerated in the statute (e.g., reporting a stolen car to the police). Courts have so

held, for instance in the cases of taking leave to go a sister’s wedding, see Alsoofi v.

Thyssenkrupp, No. 09-cv-12869, 2010 WL 973456 (E.D. Mich. Mar. 15, 2010), and using leave

to go camping, see Williamson v. Parker Hannifin Corp., 208 F. Supp. 2d 1248, 1250 (N.D. Ala.

2002). In Morris v. Family Dollar Stores of Ohio, Inc., 320 F. App’x 330, 337 (6th Cir. 2009),

we concluded that an employee’s interference claim failed because the employee was not entitled

to FMLA leave to care for his mother because she did not have a serious health condition.

Similarly, Katoula was not entitled to FMLA leave because he did not care for his mother. It is

possible that an employee may be able to maintain an interference claim when that employee had

a good-faith intention to miss work for an approved purpose, but was prevented from

accomplishing that purpose because of some independent force. But the Katoulas have cited,

and we have found, no cases that support that proposition. In any event, we need not resolve that

question because if it is at least unclear whether Katoula was entitled to FMLA leave for his

attempt to care for his mother, then MotorCity could not have knowingly or recklessly

disregarded the Act’s requirements by denying or otherwise interfering with his attempt at doing

so.

       The Katoulas argue in the alternative that their complaint asserted a retaliation claim.

The Katoulas are not clear about what conduct was the protected activity, and the complaint does

not say whether the protected activity was his giving notice and missing work on July 31, or his

initial request for permission to take intermittent leave. Either way, a willful retaliation claim

fails. First, MotorCity could not have recklessly disregarded its FMLA obligations where the act


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No. 13-1844
David Katoula v. Detroit Entertainment, LLC

of missing work on July 31 was not clearly protected activity in the first place. In Morris, after

concluding that the plaintiff was not entitled to FMLA leave, we concluded that the plaintiff

could not maintain a retaliation claim because she did not engage in protected activity. 320 F.

App’x at 338. As discussed above, Katoula was not entitled to leave for his July 31 absence (or

at least he was not so obviously entitled to leave that MotorCity’s actions could be considered

willful). Because he was not entitled to leave, it is not plausible that MotorCity acted with

reckless disregard of its FMLA obligations so as to constitute a willful violation.

       The Katoulas’ retaliation claim is also not plausible if we strain to read the complaint as

asserting that the relevant request was the initial request for intermittent leave that Katoula made

before the events of July 31. The complaint does not specifically assert this. For such an

argument to pass muster, this court would have to accept that it was plausible that MotorCity had

been seeking a pretext for firing Katoula since it initially approved his request for intermittent

leave, and then realized that such an excuse had presented itself when Katoula missed work on

July 31. To capitalize on Katoula’s tardiness, the supervisors necessarily would have willfully

intimidated and bullied him into changing his story so that they could actually fire him for

originally getting approval for intermittent leave. There is no allegation that intermittent leave

had even been taken previously. This theory, while not outside of the realm of the possible, is

not supported by enough facts so as to make it plausible as required by Iqbal and Twombly.

       For the foregoing reasons, the judgment of the district court is AFFIRMED.




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