UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

LAFAYETTE DIVISION

ERIC McCARTY, )

) 

Plaintiff, )

)

v. ) No: 4:13 CV 54

)

PURDUE UNIVERSITY BOARD )

OF TRUSTEES, et al. )

) 

Defendants. )

OPINION and ORDER

This matter is before the court on a motion to dismiss filed by The Trustees of

Purdue University, Gregory W. Hedrick II, and David Shaw (collectively, “defendants”).

(DE # 40.) Defendants bring their motion pursuant to Federal Rules of Civil Procedure

12(b)(1) and 12(c) on the grounds that Eleventh Amendment sovereign immunity bars

plaintiff’s suit. (DE # 41 at 1–2.) Plaintiff has filed an expedited response (DE # 44) and

the court will now review the motion.

I. LEGAL STANDARD

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) asserts that

the court lacks jurisdiction over the subject matter. “Subject-matter jurisdiction is the

first question in every case, and if the court concludes that it lacks jurisdiction it must

proceed no further.” Illinois v. City of Chicago, 137 F.3d 474, 478 (7th Cir. 1998); see Fed.

R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter

jurisdiction, the court must dismiss the action.”). Additionally, Eleventh Amendment

sovereign immunity presents a “jurisdictional bar” and may be raised at any time
during the pendency of litigation—even for the first time during appeal. Edelman v.

Jordan, 415 U.S. 651, 677–78 (1974).1

A Rule 12(b)(1) motion can present either a facial or factual challenge to subjectmatter jurisdiction. Villasenor v. Indus. Wire & Cable, Inc., 929 F. Supp. 310, 312 (7th Cir.

1996). A facial attack is a challenge to the sufficiency of the pleading itself. Id. When

such a challenge has been presented, the court takes all well-pleaded factual allegations

as true and draws all reasonable inferences in favor of the plaintiff. Long v. Shorebank

Dev. Corp., 182 F.3d 548, 554 (7th Cir. 1999).

In the case at hand, however, defendants do not challenge the sufficiency of the

complaint; rather, they present a factual challenge to the existence of subject matter

jurisdiction based upon the evidence in the record. See Villasenor, 929 F. Supp. at 312

(7th Cir. 1996). “Where evidence pertinent to subject matter jurisdiction has been

submitted . . . the district court may properly look beyond the jurisdictional allegations

of the complaint . . . to determine whether in fact subject matter jurisdiction exists.”

 It is undecided whether or not Eleventh Amendment sovereign immunity raises 1

a jurisdictional issue. Mexicana v. Indiana, No. 2:11-CV-482 JD, 2013 WL 4088690, at *3–4

(N.D. Ind. Aug. 13, 2013) (citing Wisconsin Dep’t of Corr. v. Schacht, 524 U.S. 381, 391

(1998). So, it is similarly undecided whether this court should apply the Rule 12(b)(1)

standard or the standard as provided by Rules 12(b)(6) or 12(c). However, the

applicable standard ultimately makes no difference in this case. Defendants concede

that the complaint was facially sufficient as to the Eleventh Amendment argument, so

defendants’ motion would fail under the standard of Rules 12(b)(6) and 12(c) which

only requires the court to assess the adequacy of the pleadings. (See DE # 41 at 15.)

Furthermore, for the reasons stated below, sovereign immunity does not apply even

when the issue is reviewed under the more inclusive 12(b)(1) standard for a factual

challenge. Therefore, regardless of the standard the court applies in this case, the

motion will be denied.

2
Sapperstein v. Hager, 188 F.3d 852, 855 (7th Cir. 1999) (internal quotation marks omitted).

Here, the plaintiff has the obligation to establish jurisdiction by competent proof. Id.

A motion pursuant to Rule 12(c) is a motion for judgment on the pleadings. Fed.

R. Civ. P. 12(c). In evaluating such a motion, the court views the facts in the complaint

in the light most favorable to the nonmoving party and should not grant the motion

“unless it appears beyond doubt that the plaintiff cannot prove any facts that would

support his claim for relief.” Austin v. Wal-Mart Stores, Inc., 20 F. Supp. 1254, 1255–56

(N.D. Ind. 1998).

II. DISCUSSION

In his complaint, plaintiff alleges he took family leave under the Family and

Medical Leave Act, 29 U.S.C. § 2615 (“FMLA”) for the birth of his child in 2012. (DE

# 1.) Plaintiff alleges he returned to work on December 10, 2012, and the following day

he was informed that he would not be retaining the position he held prior to his period

of leave. (DE # 22-14 ¶ 9–10.)

In their motion to dismiss, defendants contest plaintiff’s characterization of

events. (DE # 41.) They assert that immediately prior to this alleged demotion, plaintiff

had taken a period of “self-care leave”— as opposed to “family leave”— from

November 30, 2012 to December 10, 2012. (DE ## 41 at 2, 41-2 ¶ 8.) According to

defendants, this distinction between types of leave has bearing on whether or not

plaintiff may move forward with his suit. This is because Congress has not abrogated a

state’s immunity to suit under this self-care provision of the FMLA, and thus Eleventh

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Amendment sovereign immunity precludes FMLA claims against states based on this

type of leave. Coleman v. Court of Appeals of Maryland, 566 U.S. 30, 36–44 (2012).

Given this evidence, the court must analyze plaintiff’s claims to see if they are

based on self-care leave, in which case they would be barred by sovereign immunity.

First, plaintiff brings an interference claim under the FMLA. (DE # 1 at 5.) To present a

claim for interference, plaintiff must demonstrate that defendants failed to restore him

to his pre-leave position, or its equivalent, following his leave. (See DE # 41.) While

plaintiff does not deny that his alleged demotion occurred immediately following a

period of self-care leave, he argues that his interference claim is nonetheless based on

the failure to restore his position following family leave. (DE # 44 at 3.)

To determine whether competent proof exists to support plaintiff’s argument, the

court looks to the evidence in the record regarding the exact scope of the family leave.

According to plaintiff, he “applied and was certified for both continuous and

intermittent leave under the FMLA from October 15, 2012 through October 14, 2013.”

(DE # 22-1 ¶ 1.) This assertion is supported by the record, as provided in a document

titled “Family and Medical Leave Act Request and Notice.” (DE # 18-17.) Although

plaintiff was absent for multiple separate periods of time over this year (see DE # 41 at

7), the entire span of intermittent leave still counts as one block of FMLA leave. See

Barron v. Runyon, 11 F. Supp. 2d 676, 681 (E.D. Va. 1998) (“Leave that is taken

intermittently must, by definition, comprise periods in which the employee is absent

from work and periods in which the employee is present at work. . . . [I]f each absence

were deemed a separate period of leave, then there would be no such thing as

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intermittent leave.”) Accordingly, plaintiff has provided competent proof supporting

the notion that he was still on a year-long period of intermittent FMLA family leave at

the time he was demoted in December 2012. 

Since evidence in the record demonstrates that plaintiff was demoted before his

intermittent family leave ended, there is competent proof to support plaintiff’s

interference claim as based upon the family leave alone (regardless of the self-care

leave). Therefore, this claim is not precluded by sovereign immunity. Cf. Deka v.

Countryside Ass’n For People With Disabilities, Inc., 140 F. Supp. 3d 698, 707 (N.D. Ill. 2015)

(finding that an employee was not precluded from alleging FMLA interference when

she was terminated after requesting intermittent leave, but before utilizing any of the

leave).

Next, regarding plaintiff’s retaliation and discrimination claims, the court agrees

with plaintiff that the survival of these claims is entirely unaffected by the revelation

that plaintiff took a period of self-care leave. It is undisputed that plaintiff took at least

some period of family leave, and plaintiff’s allegations and evidence both purport that

plaintiff was discriminated or retaliated against due to that leave alone, not due to the

self-care leave. (DE ## 1; 22-14.)

In sum, defendants are correct that, to the extent plaintiff bases his FMLA claims

on the period of self-care leave, his claims are barred by the Eleventh Amendment.

However, plaintiff’s claims appear to be based not on that period, but instead, on the

period of intermittent leave which encompassed the date that plaintiff was allegedly

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demoted. (See DE ## 1, 22-1 ¶¶ 1–4.) Therefore, the Eleventh Amendment does not bar

plaintiff’s claims.

Lastly, in a short footnote, defendants move to dismiss plaintiff’s individual

capacity claims against Hedrick and Shaw under Rule 12(c). (DE # 41 at 15 n. 6.)

Defendants argue, briefly, that plaintiff has not alleged Hedrick and Shaw violated the

FMLA outside of their official capacities. (Id.)

Plaintiff disagrees. (DE # 44 at 6.) He points to his allegations that both

individual defendants were personally involved in the decision not to hire plaintiff as a

Security Architect. (See DE # 1 ¶¶ 28, 32–37.) At least one court has found that a public

employee may be held individually liable under the FMLA if the employee acts directly

or indirectly in the interest of the employer. See Barnes v. LaPorte County, 621 F. Supp. 2d

642, 645 (N.D. Ind. 2008). Furthermore, the court previously denied summary judgment

on these same individual capacity claims (see DE # 30), and defendants do not argue

that anything has changed regarding these claims since that order was issued.

Therefore, the court will deny defendants’ motion as to the individual capacity claims.

III. CONCLUSION 

For the foregoing reasons, the Motion to Dismiss (DE # 40) is DENIED.

SO ORDERED.

Date: June 27, 2017

s/James T. Moody________________

JUDGE JAMES T. MOODY

UNITED STATES DISTRICT COURT

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