Toeller, George S. v. WI Dept Corrections

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 05-4064

GEORGE S. TOELLER,

Plaintiff-Appellee,

v.

WISCONSIN DEPARTMENT OF CORRECTIONS,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 03-C-826—Aaron E. Goodstein, Magistrate Judge.

____________

ARGUED APRIL 4, 2006—DECIDED AUGUST 25, 2006

____________

Before POSNER, WOOD, and EVANS, Circuit Judges.

WOOD, Circuit Judge. This case reaches us on an inter-

locutory appeal by the Wisconsin Department of Corrections

(WDOC), challenging the district court’s decision to deny its

motion to dismiss based on the State’s Eleventh Amend-

ment immunity from suit. Although WDOC acknowledges

that the Supreme Court decided in Nevada Dep’t of Human

Res. v. Hibbs, 538 U.S. 721 (2003), that the family-care

provision of the federal Family and Medical Leave Act

(FMLA), 29 U.S.C. §§ 2602 et seq., validly abrogated the

State’s immunity, it argues that the self-care provisions of

the same statute must be evaluated separately. Once this

is done, the State continues, the applicable rule is the one

2 No. 05-4064

upholding the State’s Eleventh Amendment immunity in a

claim under Title I of the Americans with Disabilities Act

(ADA), which prohibits discrimination in employment

against qualified persons with a disability, 42 U.S.C.

§§ 12112(a), 12111(2), (5), (7). Bd. of Trs. of the Univ. of Ala.

v. Garrett, 531 U.S. 356 (2001). While we consider the

question a close one, in the end we agree with our sister

circuits that Garrett controls the self-care provision, and

thus that the State is entitled to immunity here. See

Touvell v. Ohio Dep’t of Mental Retardation and Develop-

mental Disabilities, 422 F.3d 392 (6th Cir. 2005), cert.

denied, 126 S.Ct. 1339 (2006); Brockman v. Wyo. Dep’t of

Family Servs., 342 F.3d 1159 (10th Cir. 2003). We therefore

reverse.

I

In 1996, WDOC hired George Toeller as a Facilities

Repair Worker at the Racine Correctional Institution. Two

years later, he was transferred to the Racine Youthful

Offender Facility. Between that time and 2000, he experi-

enced a number of traumatic events, including the deaths

of family members and close friends. He began to suffer

from stress anxiety and delusional disorder, which made it

impossible for him to work. As of July 2000, he began

to receive a series of letters from WDOC charging him

with various types of misconduct at the workplace and

attempting to schedule a medical evaluation. During this

time, Toeller was absent from work frequently; WDOC

repeatedly asked him to provide medical certification for

those absences, but he did not do so. He did, however, use

sick days as WDOC policy required, until he exhausted

them. Then, on October 5, 2000, he submitted a request

for unpaid leave under the FMLA until October 23, 2000,

when his doctor released him to work. WDOC never

expressly granted or denied this request, but under its

No. 05-4064 3

general policy, leave without pay is granted automatically

if it is not expressly granted or denied within two busi-

ness days.

When Toeller returned to work, on October 23, he was

suspended with pay pending an investigation of a variety of

infractions of workplace rules. On October 26, 2000, Toeller

received a written notice of termination from the Warden,

indicating that he was being fired for several reasons:

threatening and attempting to inflict bodily harm on

another person in July 2000; insubordination; and excessive

unexcused absences from work. Toeller claims that these

grounds were pretextual and that the real reason he was

fired was because he took unpaid medical leave under the

FMLA.

On August 29, 2003, he filed a complaint against WDOC

in federal court, alleging that WDOC had terminated his

employment in violation of the FMLA’s self-care provisions,

29 U.S.C. § 2612(a)(1)(D), and seeking money damages.

WDOC responded with a motion to dismiss on the ground

of the State’s Eleventh Amendment immunity from suit.

The district court denied that motion. After some discovery,

WDOC filed a motion for summary judgment on the merits,

in which it again raised its Eleventh Amendment defense.

The district court denied the motion, concluding that

Congress validly abrogated the State’s immunity in the

FMLA and thus that the suit could proceed. The State has

appealed from the second order denying its immunity

defense.

II

Before considering the merits of WDOC’s appeal, we must

resolve a preliminary question of appellate jurisdiction.

WDOC argues that this court has jurisdiction over the

district court’s order rejecting its defense, noting that it is

established that “States . . . may take advantage of the

4 No. 05-4064

collateral order doctrine to appeal a district court order

denying a claim of Eleventh Amendment immunity.” Nanda

v. Bd. of Trs. of Univ. of Ill., 303 F.3d 817, 821 (7th Cir.

2002) (quoting Puerto Rico Aqueduct & Sewer Auth. v.

Metcalf & Eddy, Inc., 506 U.S. 139, 147 (1993)). Toeller

acknowledges this rule, but he argues that WDOC failed

to file its notice of appeal within the time permitted by FED.

R. APP. P. 4(a)—a step that is also required before this court

may entertain the appeal.

Toeller’s position, however, rests on the mistaken premise

that WDOC had one and only one opportunity to take an

interlocutory appeal on this issue. He believes that this

opportunity arose after the district court’s initial denial of

the State’s motion to dismiss, which was docketed on

December 23, 2003. But Behrens v. Pelletier, 516 U.S. 299

(1999), held to the contrary, in the closely-related area of

interlocutory appeals from denials of motions to dismiss on

qualified immunity grounds. See id. at 307. We see no

reason why the rationale of Behrens should not apply with

equal force to interlocutory appeals of Eleventh Amendment

immunity claims. From that standpoint, WDOC’s notice of

appeal easily satisfied Rule 4(a). The district court denied

WDOC’s motion for summary judgment (which included its

renewed Eleventh Amendment defense) on September 29,

2005, and the State filed its notice of appeal comfortably

within the 30-day period allowed by the rule, on October 17,

2005. We conclude that we have jurisdiction over this

appeal and thus may proceed to the merits.

III

The first question we must reach—and as it turns out the

last one—is whether WDOC is entitled to immunity from

suit here. That is the question that is properly before us on

interlocutory appeal. In addition, state sovereign immunity

No. 05-4064 5

is the kind of preliminary question that should be resolved

before the merits of the claim.

As the Supreme Court stated in Garrett, “[t]he ultimate

guarantee of the Eleventh Amendment is that non-

consenting States may not be sued by private individuals in

federal court. . . . We have recognized, however, that

Congress may abrogate the States’ Eleventh Amendment

immunity when it both unequivocally intends to do so and

act[s] pursuant to a valid grant of constitutional authority.”

531 U.S. at 363 (citations and quotation marks omitted). In

a number of cases decided over the last ten years, the Court

has upheld the immunity of the states in a variety of

settings. See, e.g., Garrett, supra (immunity from suit under

Title I of the ADA); Kimel v. Fla. Bd. of Regents, 528 U.S.

62 (2000) (immunity from suit under the Age Discrimina-

tion in Employment Act); Coll. Savs. Bank v. Fla. Prepaid

Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999)

(immunity in suit brought under federal Lanham Act for

unfair competition); Seminole Tribe of Fla. v. Florida, 517

U.S. 44 (1996) (immunity from suit under Indian Gaming

Regulatory Act). On the other hand, the Court has rejected

immunity claims also, where it has found that Congress

validly abrogated the States’ sovereign immunity. See, e.g.,

Cent. Va. Cmty. Coll. v. Katz, 126 S.Ct. 990 (2006) (holding

that suit to set aside preferential transfer in bankruptcy is

not barred by state sovereign immunity, because federal

supremacy was part of the original constitutional plan);

United States v. Georgia, 126 S.Ct. 877 (2006) (holding that

Title II of the ADA validly abrogates state sovereign

immunity insofar as the lawsuit addresses conduct that

actually violates the Fourteenth Amendment); Tennessee v.

Lane, 541 U.S. 509 (2004) (Title II of the ADA validly

abrogates state sovereign immunity); Tenn. Student

Assistance Corp. v. Hood, 541 U.S. 440 (2004) (bankruptcy

court’s exercise of its in rem jurisdiction to discharge a

student loan is not barred by state sovereign immunity);

6 No. 05-4064

Hibbs, supra, 538 U.S. 721 (2003) (family-care provision of

the FMLA validly abrogated the state’s immunity).1

A number of general principles emerge from this develop-

ing jurisprudence. First, the sovereign immunity of the

States is a fundamental feature of the constitutional design.

Justice Thomas summarized this basic point in Northern

Ins. Co. of N.Y. v. Chatham County, Ga., 126 S.Ct. 1689

(2006), a case in which the Court held that counties do not

have the right to claim this immunity:

This Court’s cases have recognized that the immunity

of States from suit “is a fundamental aspect of the

sovereignty which the States enjoyed before the ratifica-

tion of the Constitution, and which they retain today .

. . except as altered by the plan of the Convention or

certain constitutional Amendments.” Alden v. Maine,

527 U.S. 706, 713 (1999); see Seminole Tribe of Fla. v.

Florida, 517 U.S. 44, 55-56 (1996); Principality of

1

These cases, taken as a whole, demonstrate that the Court has

taken care to draw important, and sometimes subtle, constitu-

tional lines in this area. Both for that reason, and for reasons

requiring basic courtesy to the courts, we find much of the rhetoric

in WDOC’s brief to be entirely out of line. It is not up to Attorney

General Peggy A. Lautenschlager or Assistant Attorney General

Richard B. Moriarty to accuse Justices of the Supreme Court of

making “remarkably intransigent statements,” or to use a

disrespectful tone in criticizing dissenting Justices merely for the

fact that they wrote a dissent, or to opine about “polarizing

declarations.” The tradition of writing dissenting opinions has

existed in the United States Supreme Court since the beginning

of the Republic, and every Justice on the Court avails himself or

herself of that privilege when he or she deems it appropriate.

Counsel’s brief is also less than helpful where it draws bizarre

analogies to opinions about the current presence of American

troops in Iraq, which has absolutely nothing to do with this case.

We trust that the State of Wisconsin will adopt a more appropri-

ate tone in future briefs filed with this court.

No. 05-4064 7

Monaco v. Mississippi, 292 U.S. 313, 322-23 (1934).

Consistent with this recognition, which no party asks

us to reexamine today, we have observed that the

phrase “ ‘Eleventh Amendment immunity’ . . . is conve-

nient shorthand but something of a misnomer, for the

sovereign immunity of the States neither derives from,

nor is limited by, the terms of the Eleventh Amend-

ment.” Alden, supra, at 713.

126 S.Ct. at 1693. The Court has recognized that the

constitutional plan includes the power of Congress to

abrogate the States’ sovereign immunity, “when it both

unequivocally intends to do so and acts pursuant to a valid

grant of constitutional authority.” Garrett, 531 U.S. at

363 (quotations omitted). If and to the extent that a con-

gressional enactment meets those criteria, then a private

party is entitled to sue the State under the federal law in

question. See United States v. Georgia, supra, 126 S.Ct. at

881-82.

The Court has found in a number of instances that

Congress has satisfied the clear statement rule. See, e.g.,

Garrett, 531 U.S. at 364 (ADA); Kimel, 528 U.S. at 73-74

(ADEA). Importantly for the present case, one of those

statutes is the FMLA. See Hibbs, 538 U.S. at 726. Nothing

in that part of Hibbs suggests that the Court’s ruling

covered anything less than the entire statute. We therefore

take as established the fact that the FMLA passes that first

hurdle.

At least in recent years, since Congress has learned that

the Court will be satisfied with nothing less than language

that “mak[es] its intention [to abrogate] unmistakably

clear,” Kimel, 528 U.S. at 73 (quotations omitted), applica-

tion of the clear statement criterion has been relatively

straightforward. It is the second inquiry, whether Congress

has acted pursuant to a valid grant of constitutional

authority, that has been more difficult. One such valid

8 No. 05-4064

grant is contained in section 5 of the Fourteenth Amend-

ment, when Congress acts to enforce the substantive

guarantees of that amendment and, if it has acted pro-

phylactically, the legislation exhibits “congruence and

proportionality between the injury to be prevented or

remedied and the means adopted to that end.” See Hibbs,

538 U.S. at 728 (quoting City of Boerne v. Flores, 521 U.S.

507, 520 (1997)); see also United States v. Georgia, 126 S.Ct.

at 881.

Although at one point it seemed as if constitutional

provisions added after the effective date of the Eleventh

Amendment, such as the Fourteenth Amendment, were

the only possible source of valid constitutional authority for

Congress, the Supreme Court corrected that impression in

its decision in Central Virginia Community College v. Katz,

supra, 126 S.Ct. 990. In keeping with the Court’s broader

recognition that the Eleventh Amendment neither created

nor limited the States’ sovereign immunity, see Northern

Ins., supra, the Court clarified in Katz that other provisions

of the Constitution might also provide a source of authority

for Congress in this area. In Katz, the Court concluded that

the Bankruptcy Clause of Art. I, sec. 8, was such a provi-

sion:

It is appropriate to presume that the Framers of the

Constitution were familiar with the contemporary legal

context when they adopted the Bankruptcy Clause—a

provision [that] . . . reflects the States’ acquiescence in

a grant of congressional power to subordinate to the

pressing goal of harmonizing bankruptcy law sovereign

immunity defenses that might have been asserted in

bankruptcy proceedings. The history of the Bankruptcy

Clause, the reasons it was inserted in the Constitution,

and the legislation both proposed and enacted under its

auspices immediately following ratification of the

Constitution demonstrate that it was intended not just

as a grant of legislative authority to Congress, but also

to authorize limited subordination of state sovereign

immunity in the bankruptcy arena.

No. 05-4064 9

126 S.Ct. at 996. Later in the opinion, the Court made clear

that the States had agreed to this part of the constitutional

plan when they ratified the 1787 Constitution, just as they

agreed to limitations on their sovereignty in 1868 almost

eighty years later when they ratified the Fourteenth

Amendment:

Insofar as orders ancillary to the bankruptcy courts’ in

rem jurisdiction, like orders directing turnover of

preferential transfers, implicate States’ sovereign

immunity from suit, the States agreed in the plan of the

Convention not to assert that immunity.

Id. at 1002.

Although we are thus well aware of the fact that section

5 of the Fourteenth Amendment is not the only possible

source of congressional power to abrogate the States’

sovereign immunity, we see no other candidate in this case.

Neither of the parties has suggested any alternative, nor

are we inclined to reach out and propose one on our own.

The analysis in Hibbs focuses exclusively on section 5 as the

relevant provision for purposes of the FMLA. We therefore

turn to the analysis of Toeller’s FMLA claim on the assump-

tion that it can go forward only if it rests on a valid exercise

of section 5 power.

The operative language of the Family and Medical Leave

Act, 29 U.S.C. § 2612, protects an employee’s right to take

leave for several reasons:

Subject to section 2613 of this title, an eligible employee

shall be entitled to a total of 12 workweeks of leave

during any 12-month period for one or more of the

following:

(A) Because of the birth of a son or daughter of the

employee and in order to care for such son or daugh-

ter.

(B) Because of the placement of a son or daughter

with the employee for adoption or foster care.

10 No. 05-4064

(C) In order to care for the spouse, or a son, daughter,

or parent, of the employee, if such spouse, son,

daughter, or parent has a serious health condition.

(D) Because of a serious health condition that makes

the employee unable to perform the functions of the

position of such employee.

Id. § 2612(a)(1). In Hibbs, the Supreme Court was con-

cerned with subpart (C), which is known as the family-leave

provision. Toeller’s case, in contrast, arises under subpart

(D), the self-care provision. We must decide here whether

that makes a difference in the outcome.

The Supreme Court began its discussion of the FMLA

in Hibbs with the observation that the statute “aims to

protect the right to be free from gender-based discrimina-

tion in the workplace.” 538 U.S. at 728. It went on to

reaffirm that “statutory classifications that distinguish

between males and females are subject to heightened

scrutiny.” Id. Such classifications are valid only if they

serve important governmental objectives and employ

measures that are substantially related to the achieve-

ment of those objectives. Id. Congress had already re-

acted to the long history of laws limiting women’s employ-

ment opportunities with the passage of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e-2(a), which the Court

had upheld as a valid exercise of the section 5 power in

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). See 538 U.S. at

729-30. But, the Court observed, “state gender discrimina-

tion did not cease.” Id. at 730. One particular area of

concern, about which Congress had extensive informa-

tion before it passed the FMLA, had to do with the adminis-

tration of leave benefits. One area where discrepancies were

patent had to do with maternity and paternity leaves: 37

percent of surveyed private-sector employers gave mater-

nity leave, but only 18 percent gave paternity leave; the

pattern in the public sector was the same. Id. This

No. 05-4064 11

was explained not by any differential physical needs of men

and women, but rather by “the pervasive sex-role stereotype

that caring for family members is women’s work.” Id. at

731. Congress also had evidence before it that facially

nondiscriminatory leave policies were applied in

a discriminatory fashion, again relying on unexamined

stereotypes about sex roles. See id. at 732. The Court

concluded, based on this extensive record, that “the States’

record of unconstitutional participation in, and fostering of,

gender-based discrimination in the administration of leave

benefits is weighty enough to justify the enactment of

prophylactic § 5 legislation.” Id. at 735.

Importantly for present purposes, the Court went on to

explain why it had come to the opposite conclusion with

respect to state sovereign immunity in Garrett and Kimel,

which dealt with the ADA and the ADEA, respectively.

Neither disability-based distinctions nor age-based dis-

tinctions, under the Court’s cases, are subject to heightened

scrutiny; instead, both are acceptable if the State has a

rational basis for its classification. See Cleburne v. Cleburne

Living Center, Inc., 473 U.S. 432 (1985) (distinctions based

on mental disabilities judged under the rational basis test);

Gregory v. Ashcroft, 501 U.S. 452 (1991) (upholding consti-

tutionality of state law establishing mandatory retirement

age for judges using rational basis test). When the rational

basis test applies, “Congress must identify, not just the

existence of age- or disability-based state decisions, but a

‘widespread pattern’ of irrational reliance on such criteria.”

538 U.S. at 735 (quoting Kimel, 538 U.S. at 90). Kimel and

Garrett found no such showing with respect to either the

ADEA or Title I of the ADA.

Title II of the ADA was another matter, however, as the

Court’s later decision in Tennessee v. Lane, supra, demon-

strated. Title II is about access to public services. In Lane,

the Court noted that Title II addresses not only irrational

discrimination based on disability, but also the enforcement

12 No. 05-4064

of a number of other constitutional guarantees that are

subject to more searching judicial review, such as the right

of access to courts guaranteed by the Due Process Clause of

the Fourteenth Amendment, the right to confront witnesses

assured by the Confrontation Clause of

the Sixth Amendment, and the right to attend court

protected by the First Amendment. 541 U.S. at 522-23.

Explaining why it upheld Title II of the ADA as legislation

that, under those circumstances, validly abrogated the

State’s sovereign immunity, the Court said:

Congress enacted Title II against a backdrop of perva-

sive unequal treatment in the administration of state

services and programs, including systematic depriva-

tions of fundamental rights. For example, [a]s of 1979,

most States . . . categorically disqualified ‘idiots’ from

voting, without regard to individual capacity. The

majority of these laws remain on the books, and have

been the subject of legal challenge as recently as 2001.

Similarly, a number of States have prohibited and

continue to prohibit persons with disabilities from

engaging in activities such as marrying and serving

as jurors. The historical experience that Title II reflects

is also documented in this Court’s cases, which have

identified unconstitutional treatment of disabled

persons by state agencies in a variety of settings . . . .

541 U.S. at 524-25 (footnotes and quotations omitted).

We are not the first to be asked to decide, in the light of

Hibbs, whether the self-care provision of the FMLA is

another valid abrogation of the State’s sovereign immunity.

Both the Tenth Circuit and the Sixth Circuit have con-

cluded, based on the emphasis the Hibbs Court placed on

the gender-based aspects of the family-care provision and

the lack of an analogous rationale for the self-care provision

that the States cannot be sued under the latter subsection.

See Touvell, 422 F.3d at 400-01; Brockman, 342 F.3d at

No. 05-4064 13

1164. Other circuits, the Sixth Circuit pointed out in

Touvell, had found that state sovereign immunity applied

to the FMLA’s self-care provision before Hibbs was decided.

See 422 F.3d at 397 (citing Laro v. New Hampshire, 259

F.3d 1, 17 (1st Cir. 2001); Lizzi v. Alexander, 255 F.3d 128,

136 (4th Cir. 2001); Hale v. Mann, 219 F.3d 61, 69 (2d Cir.

2000)).

The Tenth Circuit acknowledged in Brockman that

“[t]here is a colorable argument to the effect that the self-

care provision of the FMLA must be viewed as part of the

Act as a whole, and that it would therefore be a valid

abrogation of states’ sovereign immunity.” 342 F.3d at 1164.

The court rejected that reading, however, because it could

not find in the FMLA’s legislative history sufficient evi-

dence that Congress was linking the self-care leave provi-

sions to the elimination of gender discrimination. In reading

the FMLA that way, both the Tenth Circuit and the Sixth

Circuit implicitly decided that the Supreme Court would be

willing to evaluate the statute not only on a title by title

basis, as the Court had done with the ADA in Garrett and

Lane, but on a subsection by subsection basis.

The message that we derive from the many Supreme

Court decisions in this area is that we should—indeed

must—look at each provision of the law separately, even

though we should also evaluate each provision in con-

text. We note as well that the Supreme Court was care-

ful throughout Hibbs to state that it was deciding a case

about the family-leave part of the FMLA; one would be

hard-pressed to find anything in that opinion hinting that

the ruling extended to all of § 2612(a). If, therefore, the

holding in Hibbs should be extended to the self-care

subsection, we must find comparable justification in the

statute for self-care to that which persuaded the Court for

family-care.

14 No. 05-4064

In fact, there may be reasons why Congress placed the

self-leave provision at the end of the list of permissible

reasons for leave that 29 U.S.C. § 2612(a) sets forth. How,

for example, should pregnancy leave be characterized, when

it is the woman who seeks it? In a sense, of course, it is self-

care, as even in a normal, healthy pregnancy the expectant

mother has personal health needs that are not shared by

her male partner. In a sense, it relates to care of other(s),

since the period immediately after the birth of the child is

consumed not only with the mother’s recovery from preg-

nancy, but also with round-the-clock care of the newborn

baby. The Hibbs Court singled out maternity leave and

paternity leave as an example of dissimilar treatment along

gender lines, apparently because it was focusing on the risk

of stereotypes that assume that only women will be effective

caregivers for new offspring. For that reason, we express no

opinion about the way in which a request for self-care leave

submitted by a pregnant woman, for medical needs associ-

ated with her pregnancy, should be assessed for the purpose

of state sovereign immunity. We note only that pregnancy

discrimination (as a subset of sex discrimination) implicates

a higher level of constitutional scrutiny than disability

discrimination, and hence requires a different analysis.

On the other hand, although we have not conducted a

statistical survey on the point, it seems obvious that the

great majority of requests for self-care leave occur for

exactly the kind of reason Toeller presented: that is, a

short-term medical need (unrelated to pregnancy) that

the individual has that must be addressed. We know of

no reason why women would be more likely to have this

kind of medical problem than men. Furthermore, whether

we know about it is not the point in the end: what counts is

that we see nothing in either the text or the legislative

history of the FMLA to indicate that Congress found this to

be the case.

No. 05-4064 15

IV

For these reasons, we conclude that Toeller cannot

use the self-leave provision of the FMLA, 29 U.S.C.

§ 2612(a)(1)(D), in his suit for money damages against an

arm of the State, because, like Title I of the ADA in Garrett,

his suit cannot rest on section 5 of the Fourteenth Amend-

ment. WDOC, as an arm of the State of Wisconsin, is

entitled to invoke the State’s sovereign immunity in

this case, and thus the district court should have dismissed

Toeller’s lawsuit against it. We therefore REVERSE the

judgment of the district court and REMAND for dismissal of

this action.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—8-25-06