606 F.Supp.2d 160 (D.Mass. 2009), C. A. 08-30214, Wilson v. Executive Office of Health and Human Services

Docket NºCivil Action 08-30214-KPN.
Citation606 F.Supp.2d 160
Opinion JudgeNEIMAN, United States Magistrate Judge.
Party NameDuane WILSON, Plaintiff v. The EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES, Defendant.
AttorneyJeffrey S. Morneau, Donohue, Hyland & Donohue, PC, Holyoke, MA, for Plaintiff. Bart Q. Hollander, Attorney General's Office, Springfield, MA, for Defendant.
Case DateApril 01, 2009
CourtUnited States District Courts, 1st Circuit, District of Massachusetts

Page 160

606 F.Supp.2d 160 (D.Mass. 2009)

Duane WILSON, Plaintiff

v.

The EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES, Defendant.

Civil Action No. 08-30214-KPN.

United States District Court, D. Massachusetts.

April 1, 2009

Page 161

Jeffrey S. Morneau, Donohue, Hyland & Donohue, PC, Holyoke, MA, for Plaintiff.

Bart Q. Hollander, Attorney General's Office, Springfield, MA, for Defendant.

MEMORANDUM AND ORDER WITH REGARD TO DEFENDANT'S MOTION TO DISMISS (Document No. 7)

NEIMAN, United States Magistrate Judge.

Duane Wilson ("Plaintiff") brings this action against his employer, Massachusetts' Executive Office of Health and Human Services ("Defendant"), with regard to alleged violations of the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. Defendant, raising an interesting question of law-whether Congress's enactment of the " self-care" leave provision of the FMLA validly abrogated the Eleventh Amendment immunity of the states and their divisions from private damages actions-has moved to dismiss Plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. The parties have consented to the jurisdiction of this court. See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73.

For the reasons that follow, this court agrees with Defendant that Eleventh Amendment immunity bars Plaintiff's " self-care" leave claims. However, since the instant action also involves the " family-care" leave provision of the FMLA (for which Defendant agrees that Congress validly abrogated the states' Eleventh Amendment immunity), Defendant's motion to dismiss will be allowed in part only.

I. STANDARD OF REVIEW

In considering a Rule 12(b)(1) motion to dismiss, the court must " construe the Complaint liberally and treat all well-pleaded facts as true, according the plaintiff the benefit of all reasonable inferences." Murphy v. United States, 45 F.3d 520, 522 (1st Cir.1995). Unless the plaintiff can prove the existence of subject matter jurisdiction, his complaint should be dismissed. See id.

II. BACKGROUND

The following facts come directly from the complaint and are stated in a light most favorable to Plaintiff, the party opposing dismissal. See K.W. Thompson Tool Co. v. United States, 836 F.2d 721, 726 (1st Cir.1988). In summary, Plaintiff, a Level 1 worker, alleges that between July 10, 2007, and March 12, 2008, there were three events for which he missed work. (Complaint ¶ ¶ 7-33.)

First, on July 10, 2007, Plaintiff requested intermittent FMLA leave to care for his mother, so-called " family-care" leave. (Id. ¶ 11.) After Defendant granted that request, Plaintiff took intermittent FMLA leave until January 2, 2008, when Defendant advised him that his FMLA leave had been exhausted. (Id. ¶ 12-15.) On January 9, 2008, Plaintiff met with and informed Defendant that, in his opinion, he had not exhausted his FMLA leave. (Id.

Page 162

¶ ¶ 18-19.) Defendant disagreed and notified Plaintiff that if he did not report to work he would be fired. (Id. ¶ 20.) Faced with that ultimatum, Plaintiff made alternative arrangements for someone else to care for his mother and reported to work the next day, January 10, 2008. (Id. ¶ ¶ 21-22.)

The second event for which Plaintiff missed work occurred less than one week later. On January 15, 2008, Plaintiff requested FMLA leave because of an injury to his own knee, so-called " self care" leave. (Id. ¶ ¶ 23-24.) Defendant denied this second request, again notifying Plaintiff that, in its opinion, he did not have any FMLA leave remaining. (Id. ¶ 25.)

The third event began on February 16, 2008, when Plaintiff sustained an injury at work and was then out of work from February 20 through March 12, 2008. (Id. ¶ ¶ 26-27.) Although Plaintiff did not request FMLA leave for this third absence, on February 28, 2008, in the midst of that absence, Defendant again notified Plaintiff that his FMLA leave was exhausted. (Id. ¶ ¶ 28, 34.) Defendant also met with Plaintiff on March 7, 2008, to discuss his employment status and told him that if he did not report to work on March 12, 2008, he would be terminated. (Id. ¶ ¶ 29-32.)

On March 12, 2008, Plaintiff, again faced with the ultimatum of termination, reported to work. (Id. ¶ ¶ 33-34.) Defendant thereafter retroactively reduced Plaintiff's FMLA hours by 168, the import of which will be addressed below. (Id. ¶ 35.) For his part, Plaintiff claimed that, as of March 12, 2008, he actually had at least 92 hours of FMLA leave remaining. (Id. ¶ 36.)

Although Plaintiff's complaint raises two FMLA causes of action, neither makes any specific distinction between Plaintiff's " family-care" and " self-care" leave allegations. (Id. ¶ ¶ 37-45.) Rather, in Count 1, Plaintiff simply alleges that " Defendant interfered with, re[s]trained, or denied [him] the exercise or the attempt to exercise of his [FMLA] rights." (Id. ¶ 38.) In Count 2, Plaintiff simply alleges that " Defendant discriminated against [him] for opposing a practice made unlawful by [the FMLA]." (Id.) Plaintiff seeks money damages in both counts. (Id. ¶ ¶ 39, 45.)

III. DISCUSSION

This...

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