# the University of Texas at El Paso v. Alfredo Herrera

> Texas Supreme Court · July 2, 2010

URL: https://www.frixlaw.com/law-library/cases/3008301

## Case

- **Court:** Texas Supreme Court
- **Decided:** July 2, 2010
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3008301. Public record. Not legal advice.