Wednesday, November 10, 2010

Sovereign immunity bars FMLA claims based on the self-care provision, Fourth Circuit rules

When the United States Supreme Court ruled in Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003), that Congress validly abrogated state sovereign immunity under one of the FMLA's family care provisions, it left wide open the possibility that claims under the self-care provision might be barred.

Today, the Fourth Circuit joined the Fifth, Sixth, Seventh and Tenth Circuits in holding that Congress did not validly abrogate states' sovereign immunity as to the FMLA's self-care provision.  Coleman v. Maryland Court of Appeals, No. 09-1582 (4th Cir. Nov. 10, 2010) (published) (PDF).

The FMLA authorizes qualified employees to take up to 12 weeks of unpaid leave annually in five circumstances.  Four of these circumstances concern caring for family members, and are sometimes collectively referred to as the "family care provisions." See 29 U.S.C. § 2612(a)(1)(A) (relating to an employee's leave for bearing and caring for a child), §2612(a)(1)(B) (relating to leave for adopting or providing foster care for a child), §2612(a)(1)(C) (relating to leave for caring for a spouse, child, or parent with a serious health condition); and § 2612(a)(1)(E) (relating to leave because of an exigency arising out of an employee’s spouse, child, or parent being called to active duty, or being notified of an impending call to such duty in the armed forces).

The fifth circumstance concerns employees taking leave for their own "serious health condition that makes [them] unable to perform the functions of [their] position"  Id. at 2612(a)(1)(D).  This is commonly referred to as the "self-care" provision.

The Coleman case involved a suit by a former employee of the Maryland Court of Appeals alleging that he was fired for requesting sick leave and because he is black.  He sued under Title VII and the FMLA.  The case was dismissed for failure to state a claim, and, as to the FMLA claim, because state sovereign immunity barred the claim.

Like the other circuit courts of appeal who have addressed the issue, the Fourth Circuit found that the Hibbs ruling of no sovereign immunity did not extend to claims brought under self-care provision of § 2612(a)(1)(D).

Generally, the Eleventh Amendment bars suit in federal court against an unconsenting state (and any governmental units that are arms of the state) unless Congress has abrogated the immunity.  To abrogate the immunity, Congress must do two things: (1) it must unequivocally declare its intent to abrogate, and (2) it must act pursuant to a valid exercise of its power.

The Fourth Circuit had no doubt that the first element was satisfied here.  See Nevada Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 726 (2003) (explaining that "[t]he clarity of Congress’ intent" to abrogate the states’ immunity to FMLA suits "is not fairly debatable").  But the second element was not satisfied.

The Supreme Court has held that while Congress cannot validly abrogate a state’s immunity from private suit under its Article I powers, it can do so under its Fourteenth Amendment, § 5 authority. See Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 364 (2001).

Hibbs held that the second element was satisfied as to one of the FMLA's family care provisions because Congress had enacted that provision in response to "the States’ record of unconstitutional participation in, and fostering of, gender-based discrimination in the administration of leave benefits." Hibbs, 538 U.S. at 735; see also id. at 731 (describing the gender gap in state leave policies as being the result of "the pervasive sex-role stereotype that caring for family members is women’s work").

However, the Fourth Circuit (Chief Judge Traxler, writing for the unanimous panel) held that this reasoning does not extend to the self-care provision:
The Court’s analysis, focused as it is on the gender-related nature of § 2612(a)(1)(C), does not support the validity of Congress’s abrogation of sovereign immunity for violations of § 2612(a)(1)(D). And, the legislative history accompanying the FMLA shows that preventing gender discrimination was not a significant motivation for Congress in including the self-care provision; rather, Congress included that provision to attempt to alleviate the economic effect on employees and their families of job loss due to sickness and also to protect employees from being discriminated against because of their serious health problems.

The Court also rejected the argument that it was splitting hairs (my words) by singling out the self-care provision for different treatment.  It noted that "the Hibbs Court took pains throughout its opinion to make clear that the case it was deciding concerned only the family-leave portion of the FMLA."

Accordingly, the court affirmed the district court's ruling that Eleventh Amendment immunity barred the FMLA claim against the State of Maryland.