the University of Texas at El Paso v. Alfredo Herrera

IN THE SUPREME COURT OF TEXAS

════════════

No. 08-1049

════════════

The University of Texas at El

Paso, Petitioner,

v .

Alfredo Herrera,

Respondent

════════════════════════════════════════════════════

On Petition for Review from

the

Court of Appeals for the Eighth District of

Texas

════════════════════════════════════════════════════

Argued March 25,

2010

Justice Willett delivered

the opinion of the Court.

Justice Lehrmann did not

participate in the decision.

This case under the Family and Medical Leave Act (FMLA) raises two

important immunity issues: (1) did Congress validly abrogate Texas’ sovereign

immunity under the FMLA’s self-care provision; and if not (2) did the University

of Texas at El Paso (UTEP) waive the State’s immunity through a single sentence

in its Handbook of Operating Procedures? We hold that UTEP’s immunity was

neither validly abrogated nor voluntarily waived, and the court of appeals erred

in affirming the trial court’s denial of UTEP’s plea to the jurisdiction.

I. Background

Alfredo Herrera worked for UTEP as a heating, ventilation, and

air-conditioning technician. In March 2005 he sustained an on-the-job injury to

his left elbow. Herrera took approximately nine months leave and returned to

work in January 2006. UTEP terminated Herrera’s employment less than one month

later.

Herrera sued UTEP, claiming it fired him for (1) taking personal medical

leave under the self-care provision of the FMLA and (2) exercising his First

Amendment rights by complaining about unsafe work conditions. UTEP filed a plea

to the jurisdiction on the FMLA claim, contending it was barred by sovereign

immunity. The trial court denied the plea, and a divided court of appeals

affirmed, holding the self-care provision validly abrogated the States’

sovereign immunity. 1

The court of appeals anchored its holding on the United States Supreme

Court’s decision in Nevada Department of Human Resources v. Hibbs , 2 which concerned the FMLA’s

family -care provision related to ill spouses, children or parents. The

court of appeals reasoned that the self-care provision, like the family-care

provision in Hibbs , was intended to advance

equal-protection rights and was thus a valid exercise of Congress’s powers under

§ 5 of the Fourteenth Amendment. 3 The dissenting justice emphasized that

“[t] he majority opinion flies in the face of a mountain

of contrary and persuasive legal authority.” 4

II. Discussion

A. Does the Self-Care Provision Validly Abrogate State

Immunity?

Congress listed five purposes underlying the FMLA:

(1) to balance the demands of the

workplace with the needs of families, to promote the stability and economic

security of families, and to promote national interests in preserving family

integrity;

(2) to entitle employees to take

reasonable leave for medical reasons, for the birth or adoption of a child, and

for the care of a child, spouse, or parent who has a serious health

condition;

(3) to accomplish the purposes

described in paragraphs (1) and (2) in a manner that accommodates the legitimate

interests of employers;

(4) to accomplish the purposes described in paragraphs (1) and

(2) in a manner that, consistent with the Equal Protection Clause of the

Fourteenth Amendment, minimizes the potential for employment discrimination on

the basis of sex by ensuring generally that leave is available for eligible

medical reasons (including maternity-related disability) and for compelling

family reasons, on a gender-neutral basis; and

(5) to promote the goal of equal

employment opportunity for women and men, pursuant to such clause. 5

To achieve these purposes, the FMLA grants eligible employees 6 up to “12 workweeks of leave during any

12-month period” for various health-related reasons , 7 including an employee’s “serious health

condition,” 8 the so-called “self-care” provision at

issue in this case. Employees returning from FMLA leave are entitled to be

restored to their former position, or to a new position with equivalent

benefits, pay, and other terms and conditions of employment. 9

Two threshold issues are undisputed: (1) Herrera is an “eligible

employee” under the FMLA; and (2) the Act by its terms applies to state

employers like UTEP. 1 0 Today’s narrow dispute is whether

Congress overreached in exposing States to FMLA claims under the self-care

provision.

Our federal and state constitutional designs embody the principle of

state sovereignty that shields States from private suits in their own courts and

in the federal courts. 1 1 Herrera’s FMLA suit is thus barred by

sovereign immunity unless (1) Congress validly abrogates it,

or (2) the State voluntarily waives it. As for abrogation, federal

legislation can overcome the States’ immunity provided Congress (1)

unequivocally expresses its intent to do so, and (2) acts “pursuant to a

constitutional provision granting Congress the power to abrogate.” 1 2 The first part is undeniable in this

case; the text explicitly subjects States to FMLA claims , 1 3 and the Supreme Court has determined as

much. 1 4 The second part is what matters here:

did Congress have constitutional authority to abrogate the States’ immunity for

purposes of the FMLA’s self-care provision? 1 5

The principal source for abrogation authority is § 5 of the Fourteenth

Amendment: “The Congress shall have power to enforce, by appropriate

legislation, the provisions of this article.” 1 6 As the Supreme

Court has explained, “Section 5 grants Congress the power ‘to enforce’ the

substantive guarantees of § 1 — among them, equal protection of the laws — by

enacting ‘appropriate legislation.’” 1 7

Congress’s § 5 enforcement power is not limitless, however. If federal

legislation “ reach[ es ] beyond

the scope of § 1’s actual guarantees,” it can validly abrogate the States’

immunity only when it is “an appropriate remedy for identified constitutional

violations, not ‘an attempt to substantively redefine the States’ legal

obligations.’” 1 8

To pass constitutional muster, § 5 legislation must meet the two-part

test refined in City of Boerne v. Flores 1 9 — that is, it must (1) counter

identified constitutional injuries by the States and (2) exhibit “congruence and

proportionality between the injury to be prevented or remedied and the means

adopted to that end.” 2 0 The first prong

decides today’s case, as nothing shows Congress was thinking of gender

discrimination by the States when it enacted the self-care provision.

The court of appeals concluded Congress acted within its § 5 authority as

the FMLA’s legislative record identified unconstitutional gender bias by the

States in the administration of leave benefits. 2 1 According to the court of appeals,

Congress enacted the self-care provision to counter the stereotype that women

utilize leave policies more than men and to protect women from such

discrimination. 2 2

The court of appeals justified its holding by pointing both to the

congressional findings noted in Nevada Department of Human Resources v.

Hibbs 2 3 and the historical context in

which the FMLA was enacted. In Hibbs , which

concerned the Act’s family-care provision, the Supreme Court held that Congress

intended the FMLA to protect a right guaranteed by the Equal Protection Clause,

specifically the right to be free from gender discrimination in the

workplace. 2 4 The Court reasoned that Congress had

validly exercised its § 5 power to abrogate the States’ immunity with respect to

family-care claims because Congress had identified a pattern of gender

discrimination on the part of the States. 2 5 Notably, the Court was careful

throughout Hibbs to make clear it was deciding

the narrow issue of Eleventh Amendment immunity under the family-care provision,

nothing else. 2 6 The court of appeals pointed to Hibbs as proof that the Supreme Court already found

that “Congress had before it sufficient evidence of gender-based discrimination

in the administration of leave benefits to warrant the enactment of prophylactic

§ 5 legislation.” 2 7 But all the evidence of unconstitutional

State conduct cited in Hibbs concerned

discrimination rooted in the belief that women are more likely than men to take

leave to care for other family members, not themselves. 2 8 Indeed, the court of appeals recognized

that in Hibbs there was evidence that

the States relied on stereotypes that women’s family duties trumped their

workplace duties, caring for family members is “women’s work,” and men do not

have the same domestic responsibilities as women. 2 9 Such evidence regarding women taking

leave to care for others does not equate to evidence regarding women taking

leave to care for themselves. In Hibbs , the

Supreme Court made clear that Congress was required to show evidence of

pervasive gender discrimination by the States with regard to family

leave. 3 0 The same is

required for the self-care provision. We must assess each FMLA provision

separately, and abrogation of the States’ immunity under this provision must

rest on its own evidentiary basis; it cannot import evidence from the

family-care provision. 3 1 There simply is no evidence — either in

Congress’s findings or elsewhere in the FMLA’s legislative record — that women

took more personal medical leave, or were thought to, than men. 3 2

The court of appeals also examined the historical context in which the

FMLA was enacted , 3 3 concluding that Congress intentionally

included the self-care provision to counter the stereotype that women take more

advantage of leave policies than men and to provide women with protection from

gender discrimination that might result from more-targeted legislation providing

special protection only for pregnant women. 3 4

This argument suffers from myriad flaws. First, there is no evidence that

Congress, when it enacted the FMLA, was any more concerned with providing leave

benefits to pregnant women than to all medically eligible employees, no matter

their gender. 3 5 Second, there is no indication the

self-care provision was designed to combat workplace discrimination arising from

pregnancy-related complications, much less a pattern of such discrimination by

the States. 3 6 Third, there is no reason to believe the

self-care provision would in fact remove any disincentive to hire women that

might otherwise result from a pregnancy-specific provision. 3 7 Indeed, if employers are reluctant to

hire women because they believe women might become pregnant, or because they

believe women take personal leave more frequently than men, then mandating

twelve weeks of leave will only reinforce such views and make employers even

more disinclined to hire women. 3 8

In sum, the legislative record reveals no intention by Congress to remedy

unconstitutional gender discrimination through the self-care provision. 3 9 Nothing links

that provision to any pattern of sex-role stereotyping by the States as

employers. We agree with two States’ highest courts, 4 0 and nine federal circuit courts, 4 1 that Congress lacked the power to invoke

its § 5 abrogation power under the self-care provision. 4 2 Although Congress did cite evidence,

detailed in Hibbs , of pervasive stereotyping

about women as family caregivers, that evidence does not extend to the Act’s

self -care provision. There is no evidence of similar stereotypes when it

comes to personal medical leave; the legislative record in fact

demonstrates the contrary — that men and women take leave equally. 4 3

In fact, the record indicates two motivations underlying the self-care

provision, both unrelated to gender discrimination. First, Congress was trying

to alleviate economic burdens borne by employees and their families facing

health-related job loss. 4 4 Second, Congress was trying to curb

discrimination against any employee with a “serious health condition,” a term

broadly defined to include any “illness, injury, impairment, or physical

or mental condition” 4 5 that involves “inpatient care” at a

medical facility or “continuing treatment by a health care provider,” not just

those health conditions wholly or mostly experienced by women. 4 6 Nothing in the record connects these

two, gender-neutral motivations to unconstitutional workplace injuries inflicted

by the States. Similarly, the congressional finding most germane to the

self-care provision makes no male-female distinction, stating “there is

inadequate job security for employees who have serious health conditions that

prevent them from working for temporary periods.” 4 7

Because the self-care provision was not intended to combat gender bias by

the States, and thus does not satisfy City of Boerne ’s first prong, we

need not reach prong two regarding congruence and proportionality. Summing up:

Congress exceeded its § 5 abrogation authority when it subjected the States to

private-damages suits under the FMLA’s self-care provision.

B. Does UTEP’s Personnel Handbook Waive the State’s

Immunity?

Herrera alternatively argues that even if Congress did not abrogate the

State’s immunity, UTEP clearly and unambiguously waived it through its Handbook

of Operating Procedures, which states “[a]n eligible employee may also bring a

civil action against an employer for violations [of the FMLA].” We disagree.

UTEP’s policy manual certainly mentions employees’ FMLA rights, noting

that the FMLA makes it unlawful to discharge or discriminate against someone for

involvement in proceedings under the Act. The handbook also includes the “may

also bring a civil action” sentence, which Herrera says plainly permits FMLA

claims.

This cursory language does not remotely constitute voluntary consent to

suit, much less “clear and unambiguous” consent. 4 8 Putting aside the issue of whether UTEP

(as opposed to the Legislature) can waive its immunity by declaration in a

handbook, 4 9 UTEP’s manual actually reveals nothing

about an intent to waive immunity. 5 0 The handbook states that employees may

sue for violations of the FMLA, but makes no attempt to expand the universe of

actionable violations by explicitly waiving immunity that UTEP otherwise enjoys.

Indeed, it is impossible to grasp how fleeting language in a policy manual can

“clearly and unambiguously” waive immunity when far more overt declarations in

statutes enacted by the Legislature fall short. 5 1

III. Conclusion

The State of Texas cannot be sued under the FMLA’s self-care provision.

As for abrogation, nothing in the legislative record suggests that gender bias

by the States was the constitutional evil underlying the self-care provision.

Congress’s power under the Fourteenth Amendment to overcome the States’ immunity

is limited, and its attempt to do so here was an unconstitutional exercise of

its § 5 power. As for waiver, a stray line in UTEP’s policy manual that

employees may “bring a civil action against an employer” is insufficient to

waive state immunity. The trial court erroneously denied UTEP’s plea to the

jurisdiction. We reverse the court of appeals’ judgment and dismiss Herrera’s

FMLA claim for lack of subject-matter jurisdiction.

_________________________________

Don R. Willett

Justice

OPINION

DELIVERED: July 2, 2010

1 281 S.W.3d 575, 585 .

2 538 U.S. 721 (2003).

3 281 S.W.3d at 584 . Because the court of appeals held that sovereign

immunity had been abrogated on this ground, it did not address the alternative

argument that UTEP waived its immunity through a statement in its Handbook of

Operating Procedures.

4

Id. at

592 (Carr, J., dissenting). Justice Carr’s dissent on a material question of law

gives us jurisdiction over this interlocutory appeal. Tex. Gov’t Code § 22.225(c).

5

29 U.S.C. § 2601 (b )( 1)–(5).

6

Id. §

2611(2 )( A).

7

Id. §

2612(a )( 1). The FMLA guarantees leave to eligible

employees for the following reasons:

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

employee and in order to care for such son or daughter.

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

the employee for adoption or foster care.

(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. After this

case was filed, Congress added subsection (E), allowing leave for exigencies

arising from a family member’s active duty in the Armed Forces.

8

Id. §

2612(a )( 1)(D).

9

Id. §

2614(a )( 1).

10 Id. §§

2611(4 )( A)(iii), 203(x). The Act confers a private

right of action “to recover [] damages or equitable relief . . . against any

employer (including a public agency) in any Federal or State court of competent

jurisdiction . . . .” Id. § 2617(a )( 2).

11 See Alden

v. Maine , 527 U.S. 706, 754 (1999);

Nev. Dep’t of Human Res. v. Hibbs , 538 U.S.

721, 726 (2003) (“[T]he Constitution does not provide for federal jurisdiction

over suits against nonconsenting States.”); Tooke

v. City of Mexia , 197 S.W.3d 325, 331 (Tex. 2006);

Hoff v. Nueces County , 153 S.W.3d 45, 48 (Tex. 2004) (per curiam ).

12 Seminole Tribe of Fla. v. Florida , 517 U.S. 44, 55, 59 (1996).

13 29 U.S.C. §

2617 (a )( 2) (enabling employees to seek damages “against

any employer (including a public agency) in any Federal or State court of

competent jurisdiction”); id. §§ 2611(4 )( A)(iii), 203(x) (defining “public agency” to include both

“the government of a State or political subdivision thereof” and “any agency of

. . . a State, or a political subdivision of a State”).

14 Hibbs , 538 U.S. at 726 .

15 See

id.

16 U.S. Const. amend . XIV,

§ 5.

17 Hibbs , 538 U.S. at 727 .

18 Id. at 728

(quoting Kimel v. Fla. Bd. of Regents , 528 U.S.

62, 88 (2000)).

19 521 U.S. 507 (1997).

20 Hibbs ,

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

520 ).

21 281 S.W.3d 575, 582 .

22 Id. at

584.

23 538 U.S. 721 (2003).

24 Id. at

728.

25 Id. at 735

(“[T]he 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.”).

26 Nelson v.

Univ. of Tex. at Dallas , 535 F.3d 318,

321 (5th Cir. 2008); Brockman v. Wyo. Dep’t of Family Servs . , 342 F.3d 1159, 1164 (10th Cir. 2003) (“Because

the Supreme Court’s analysis in Hibbs turned on

the gender-based aspects of the FMLA’s § 2612(a )( 1)(C),

the self-care provision in subsection (D) is not implicated by that

decision.”).

27 281 S.W.3d at 584 .

28 Touvell v. Ohio Dep’t of Mental Retardation & Developmental

Disabilities , 422 F.3d 392 , 400–01 (6th

Cir. 2005). See Hibbs , 538 U.S. at 729 n.2 (“Congress found that, ‘due

to the nature of the roles of men and women in our society, the primary

responsibility for family caretaking often falls on women, and such

responsibility affects the working lives of women more than it affects the

working lives of men.’”) ( internal citation omitted);

id. at 730–31 (citing evidence of overt discrimination in the maternity

and paternity leave benefits offered by both private and public employers);

id. at 732 (citing evidence that even facially

neutral policies were applied in a discriminatory way, and noting “serious

problems with the discretionary nature of family leave”); id. at 736 (identifying the “impact of the discrimination

targeted by the FMLA” as the “denial or curtailment of women’s employment

opportunities [due] to the pervasive presumption that women are mothers first,

and workers second.”) ( internal citation omitted);

id. at 731 (noting “the pervasive sex-role

stereotype that caring for family members is women’s work”).

29 281 S.W.3d at 581 .

30 Hibbs , 538 U.S. at 729 .

31 See Touvell , 422 F.3d

at 399 n.2 .

32 See

id. at 402,

405; H.R. Rep. No. 101-28, pt. 1,

at 15 (1989) (“Recent studies . . . indicate that men and women are out on

medical leave approximately equally. Men workers experience an average of 4.9

days of work loss due to illness or injury per year, while women workers

experience 5.1 days per year. The evidence also suggests that the incidence of

serious medical conditions that would be covered by medical leave under the bill

is virtually the same for men and women. Employers will find

that women and men will take medical leave with equal frequency.”); see also

Laro v. New Hampshire , 259 F.3d 1,

12 (1st Cir. 2001) (“The argument that [the self-care] provision validly

abrogates New Hampshire’s Eleventh Amendment immunity founders on this lack of

congruence between the personal medical leave provision at issue here and the

prevention of gender-based discrimination by states as employers, because

Congress has not found the states to have engaged in the specific gender-based

discriminatory practices this provision was designed to prevent.”); Bryant v.

Miss. State Univ. , 329 F. Supp. 2d 818, 827 (N.D. Miss. 2004) (“There is no

indication that women require more actual personal medical leave than men. Nor

is there any evidence that women have suffered disparate treatment due to a

false perception that they require more personal medical leave than men. . . .

[T]here is simply no evidence to this Court’s knowledge that women and men have

been subjected to different standards for personal medical leave.”). But see

Parental and Medical Leave Act of 1987: Hearing on S. 249 Before the Subcomm . on Children, Family, Drugs and Alcoholism of the S.

Comm. on Labor and Human Resources , 100th Cong., 1st Sess., pt. 2, at 170

(1987) (testimony of Peggy Montes, Mayor’s Comm’n on

Women’s Affairs, City of Chicago) (“[M] ost workplaces

have not yet adjusted to meet the needs of the increasing number of women in the

labor force. . . . The lack of uniform parental and medical leave policies in

the workplace has created an environment where discrimination is

rampant.”).

33 281 S.W.3d at 582 .

34 Id. at

584. The court of appeals surmised

the self-care provision was enacted to meet a perceived need not addressed by

Title VII and the Pregnancy Discrimination Act (PDA). Id. at 583 . The Pregnancy Discrimination Act of 1978

amended Title VII to prohibit sex discrimination on the basis of pregnancy by

amending the definition of the terms “because of sex” or “on the basis of sex”

to include pregnancy, childbirth, and related medical conditions. See 42

U.S.C. § 2000e( k). Under the PDA, women may not be

treated differently in employment because of conditions related to pregnancy or

childbirth. But the PDA does not require pregnancy-related leave by employers

who offer no benefit provisions for leave at all. The court of appeals believed

that the PDA had an unintended negative impact on women’s opportunities in the

workplace because “employers might find it cost-effective to discriminate

against married women of child-bearing age.” 281 S.W.3d at 583 (quoting S. Rep. No. 102-68, at 73

(1991)).

35 Touvell ,

422 F.3d at 404 . The self-care provision allows for

personal medical leave when a “serious health condition” prevents any employee

from performing his or her job. 29 U.S.C. § 2612 (a )( 1)(D). And the term “serious health condition” in the

self-care provision is not limited to or focused on those health conditions

wholly or predominantly experienced by female workers, but rather is broadly

defined to include any “illness, injury, impairment, or physical or mental

condition” that involves “inpatient care” at some type of medical facility or

“continuing treatment by a health care provider.” Id. § 2611(11); Touvell , 422 F.3d at 403 (“[T]he same Senate Report

that lists various pregnancy-related conditions as examples of medical

conditions that would be covered under the self-care provision also lists

thirteen other types of conditions, including heart conditions, strokes, ‘most

cancers,’ and accidents on or off the job.”). See S. Rep. No. 103-3, at 29 (1993); see

also, e.g. , id. at 12 (citing testimony that

a quarter of all cancer survivors face “some form of employment

discrimination”).

36 Touvell ,

422 F.3d at 404 .

37 Id.

38 See Kazmier v. Widmann , 225 F.3d 519, 528 (5th Cir. 2000), overruled in

part by Hibbs , 538 U.S. 721 (“[W]e find it

virtually impossible to conceive how requiring employers to permit employees to

take 12 weeks of leave for serious health conditions could possibly have the

effect of preventing sex discrimination in hiring practices . If the

United States is correct in surmising that employers are reluctant to hire women

for fear that they will become pregnant and ‘leave the labor market,’ then the

only possible effect on hiring practices of expressly mandating leave for

pregnancy (among other serious health conditions) would be to reinforce

such fears and make employers even more reluctant to hire women. A

provision mandating that employers grant leave for serious health conditions

cannot be viewed as reasonably calculated to achieve the objective of making

employers less disinclined to hire women.”).

39 In this

context, we consult the congressional record to discern whether Congress validly

abrogated the States’ immunity. See Hibbs , 538

U.S. at 729 (“We now inquire whether Congress had evidence of a pattern of

constitutional violations on the part of the States in this area.”); Kimel , 528 U.S. at 88 (“Our task is to determine

whether the [statute] is in fact just such an appropriate remedy or, instead,

merely an attempt to substantively redefine the States’ legal obligations with

respect to age discrimination. One means by which we have made such a

determination in the past is by examining the legislative record containing the

reasons for Congress’ action.”); Fla. Prepaid Postsecondary Educ. Expense Bd.

v. Coll. Sav . Bank , 527 U.S. 627, 639 (1999)

(“[F]or Congress to invoke § 5, it must identify conduct transgressing the

Fourteenth Amendment’s substantive provisions, and must tailor its legislative

scheme to remedying or preventing such conduct. [The statute] failed to meet

this test because there was little support in the record for the concerns that

supposedly animated the law.”); Kazmier , 225

F.3d at 524–25 (“[W]e examine . . . the legislative record of the statute under

review to see whether it contains evidence of actual constitutional

violations by the States sufficient to justify the full scope of the

statute’s provisions. The respect that must be accorded the States as

independent ftlinesovereigns within our federal system

prevents Congress from restraining them from engaging in constitutionally

permissible conduct based on nothing more than the mere invocation of perceived

constitutional bogeymen . . . . If Congress fails to include in the legislative

record of a prophylactic statute any evidence of a significant pattern of

unconstitutional discrimination by the States, then the statute will not be held

to abrogate the States’ sovereign immunity.”) ( footnotes , brackets, internal quotation marks omitted). It

merits mention that this record-intensive inquiry, mandated by controlling caselaw , is unlike our ordinary statutory-construction

cases, where clear text is determinative and leaves no room for legislative

history.

40 Lizzi v. Wash. Metro. Area Transit Auth. , 862 A.2d 1017 (Md. 2004); Nicholas v.

Attorney Gen. , 168 P.3d 809 (Utah

2007).

41 See Laro , 259 F.3d at 16 (“[T]he personal medical leave

provision of the FMLA does not exhibit a sufficient congruence to the prevention

of unconstitutional state discrimination to validly abrogate the states’

Eleventh Amendment immunity.”); Hale v. Mann , 219 F.3d 61, 69 (2d Cir.

2000) (“There is no evidence that this conferment of federally protected

[self-care] leave is tailored to remedy sex-based employment discrimination. . .

. Thus, we find that Congress did not have the authority to abrogate the

sovereign immunity of the states on claims arising under the [self-care

provision] at issue here. Its attempt to do so was not

congruent or proportional to the harms targeted by the Fourteenth Amendment.”);

Banks v. Court of Common Pleas FJD. , 342 F. App’x 818, 821 (3d Cir. 2009) (per curiam ) (“In Chittister

v. Dep’t of Cmty . and Econ. Dev. , 226 F.3d 223, 229 (3d Cir. 2000), we

ruled that Congress did not validly abrogate the states’ Eleventh Amendment

immunity when it enacted provisions of the FMLA. Although the ‘family-care’ provisions of

the FMLA were upheld by the Supreme Court in [ Hibbs ], private suits still may not be brought

against states where the self-care provisions of the Act are implicated.”);

Nelson , 535 F.3d at 321 (“[W]e agree with the rationale of the Sixth,

Seventh, and Tenth Circuits that the Supreme Court’s ruling in Hibbs applies only to subsection C. Therefore, this

court’s decision in Kazmier still remains the

law of this circuit with respect to subsection D.”); Touvell , 422 F.3d at 402 (“Congress adduced no

evidence of a pattern of discrimination on the part of the states regarding

leave for personal medical reasons sufficient to permit the abrogation of state

sovereign immunity.”); Toeller v. Wis. Dep’t

of Corr. , 461 F.3d 871, 879 (7th Cir. 2006) (“We know of no reason why women

would be more likely to have [a short-term] 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.”); Miles v. Bellfontaine Habilitation Ctr. , 481 F.3d 1106, 1107 (8th

Cir. 2007) (“The district court properly dismissed with prejudice Miles’s FMLA

claim, which was brought under FMLA’s self-care provisions. As an agency of the

state of Missouri, the Center is entitled to Eleventh Amendment immunity from

the claim.”) (citations omitted); Brockman , 342 F.3d at 1164–65 (“The

legislative history does not, however, identify as the basis for subsection (D)

a link [to] any pattern of discriminatory stereotyping on the part of the states

as employers.”); Batchelor v. S. Fla. Water

Mgmt. Dist. , 242 F. App’x 652, 653 (l1th Cir.

2007) (per curiam ) (unpublished) (“Our holding in

Garrett that Congress is without authority to abrogate state sovereign

immunity for claims arising under the self-care provision of the FMLA remains

the law of this Circuit.”).

42 Nelson , 535 F.3d at 321 .

43 See

supra note 32.

44 S. Rep.

No. 103-3, at 11 (1993) (“The

fundamental rationale for [a personal medical leave] policy is that it is unfair

for an employee to be terminated when he or she is struck with a serious illness

and is not capable of working. Job loss because of illness has a particularly

devastating effect on workers who support themselves and on families where two

incomes are necessary to make ends meet or where a single parent heads the

household.”); H.R. Rep. No.

101-28, pt. 1, at 23 (“The temporary medical leave requirement is intended to

provide basic, humane protection to the family unit when it is most in need of

help. It will also help reduce the societal cost born[e] by government and

private charity.”); see also Touvell , 422 F.3d

at 401 (“One purpose of [the self-care provision] was alleviating the economic

burdens on employees and their families of illness-related job loss.”);

Brockman , 342 F.3d at 1164 (same); Laro ,

259 F.3d at 12 (“Attention to the legislative history reveals that Congress’s

primary motivation for including the personal medical leave provision contained

in subsection (D) was to protect families from the economic dislocation caused

by a family member losing his or her job due to a serious medical

problem.”).

In any event, this concern implicates the Commerce

Clause rather than § 5 of the Fourteenth Amendment, and Congress cannot abrogate

the States’ immunity through the Commerce Clause. Bd. of

Trs . of Univ. of Ala. v. Garrett , 531 U.S. 356,

364 (2001).

45 29 U.S.C. § 2611 (11).

46 See, e.g. ,

S. Rep. No. 103-3, at 12 (citing testimony that a quarter of all

cancer survivors face “some form of employment discrimination” and that “such

discrimination against qualified employees costs society millions of dollars in

lost wages, lost productivity and needless disability payments”); H.R. Rep. No. 101-28, pt. 1, at 23

(“[A] worker who has lost a job due to a serious health condition often faces

future discrimination in finding a job which has even more devastating

consequences for the worker and his or her family.”); see also Touvell , 422 F.3d at 401 (“The other purpose of the

self-care provision was to prevent employment discrimination against those with

serious health problems.”); Brockman , 342 F.3d at 1164 (“The legislative

history accompanying the passage of the FMLA reveals two motivations for the

inclusion of the self-care provision. . . . Second, Congress was attempting to

prevent those with serious health problems from being discriminated against by

their employers.”) ( citations omitted); Laro , 259 F.3d at 12 (“A secondary motivation that

appears in the legislative history is a concern to protect workers who were

temporarily disabled by serious health problems from discrimination on account

of their medical condition.”).

47 29 U.S.C. §

2601 (a )( 4).

48 See Tooke

v. City of Mexia , 197 S.W.3d 325 , 328–29 & n.2 (Tex. 2006) (noting

that sovereign and governmental immunity are “waived only by clear and

unambiguous language”).

49 See Tex.

Natural Res. Conservation Comm’n v.

IT-Davy , 74 S.W.3d 849, 853 (Tex. 2002)

(“This Court has long recognized that ‘it is the Legislature’s sole province to

waive or abrogate sovereign immunity.’” ( quoting

Fed. Sign v. Tex. S. Univ. , 951 S.W.2d 401, 409 (Tex. 1997))); but

see Tooke , 197 S.W.3d at 344 (“[I]t could be argued that a city lacks

authority to waive its own immunity from suit by ordinance or charter. But we

need not address that argument here because the quoted provision is not a clear

and unambiguous waiver of immunity.”); Reata

Constr. Corp. v. City of Dallas , 197 S.W.3d 371, 375, 377 (Tex. 2006)

(noting that “[w]e have generally deferred to the Legislature to waive

immunity,” but holding that City was not immune from “claims against it which

are germane to, connected with and properly defensive to claims the City

asserts”).

50 See

Tooke , 197 S.W.3d at 342 (holding that a ten-word sentence that revealed

nothing about an intent to waive immunity did not waive

City’s immunity from suit).

51 Id. (holding

that phrases in Texas statutes stating a governmental entity may “sue and be

sued” or “plead and be impleaded ” were not clear and

unambiguous waivers of sovereign immunity within the meaning of Tex. Gov’t Code § 311.034); see also

id. at 347–55 (“Appendix” listing Texas statutes

containing “sue and be sued” or “plead and be impleaded ”

language).