October 4, 2010 - 12:30am
Fourth Circuit Holds that Sovereign Immunity Bars FMLA Claims Based on Self-Care Provision Posted by:


Recently, a panel of the United States Court of Appeals for the Fourth Circuit held that Congress has not abrogated the states’ sovereign immunity as to the self-care provision of the Family Medical Leave Act (“FMLA”).  Coleman v. Md. Ct. of App., 2010 U.S. App. LEXIS 23291 (Nov. 10, 2010).  The plaintiff, a former employee of the Maryland Court of Appeals, brought a complaint under Title VII and the FMLA alleging that he was fired because of his race and for requesting sick leave due to his own illness.  The district court dismissed the plaintiff’s Title VII race-discrimination claim on the grounds that the plaintiff did not plead sufficient facts to sustain the claim and dismissed the FMLA claim on the grounds that it was barred by Eleventh Amendment immunity.


After affirming dismissal of the plaintiff’s Title VII claim, the panel analyzed whether Congress, in enacting the FMLA, abrogated the states’ Eleventh Amendment immunity with respect to the FMLA’s self-care provision.  The FMLA authorizes qualified employees to take up to twelve weeks of unpaid leave annually for certain reasons, including to care for a spouse, child, or parent with a serious health condition or when an employee’s own serious health condition makes him unable to perform his job.  29 U.S.C. § 2616(a).  The FMLA creates a private right of action for equitable relief or monetary damages against any employer that denies its employee FMLA rights.  Id. §§2615(a), 2617(a).   The issue in Coleman was whether Congress validly abrogated the states’ Eleventh Amendment immunity with regard to the FMLA’s self-care provision, allowing the plaintiff to bring his claim against a state entity—the Maryland Court of Appeals.


The Eleventh Amendment bars suit in federal court against an un-consenting state and any governmental units deemed to be arms of the state unless Congress has expressly, and validly, abrogated that immunity.  Alden v. Maine, 527 U.S. 706, 755-57 (1999).  The inquiry, accordingly, has two parts:  (1) In passing the Act, did Congress evince an unambiguous intention to abrogate state sovereign immunity; and (2) Was the Act in question passed pursuant to a constitutional provision granting Congress the power to abrogate?  See, e. g., Fitzpatrick v. Bitzer, 427 U.S. 445, 452-456 (1976).  


Applying the test, the court noted that the FMLA’s self-care provision clearly expresses an unequivocal intent to abrogate.  See Nevada Dep’t of Human Resources v. Hibbs, 538 U.S. 721, 726 (2003) (“The clarity of Congress’ intent [to abrogate the states’ immunity to FMLA suits] is not fairly debatable”).


With regard to the second prong of the test, the court noted that Congress can validly abrogate the states’ immunity from private suit under the Fourteenth Amendment.  Board of Trustees v. Garrett, 531 U.S. 356, 364 (2001).  To do so, however, “there must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.”  City of Boerne v. Flores, 521 U.S. 507, 520 (1997).  Accordingly, the self-care provision would be constitutional only if there was some Fourteenth Amendment injury that Congress sought to remedy with its enactment and only if the self-care provision was a proportional remedy to that injury.


In Hibbs, the Supreme Court held that the FMLA provision relating to caring for a family member with a serious health condition constituted a valid abrogation of the states’ sovereign immunity.  Id. at 735.  In reaching that conclusion, the Court determined that Congress enacted the FMLA in response to “the States’ record of unconstitutional participation in, and fostering of, gender-based discrimination in the administration of leave benefits.”  Id.  In addition, allowing leave to care for a sick family member “narrowly targeted at the faultline between work and family—precisely where sex-based overgeneralization has been and remains strongest.”  Id. at 738. 


Hibbs, however, did not address whether Congress validly abrogated states’ immunity with regard to the self-care provision.  In concluding that it did not, the Fourth Circuit panel reasoned that preventing gender discrimination was not a significant motivation for Congress in including the self-care provision.  Rather, Congress included that provision in order to alleviate the economic effect on employees and their families of job loss due to sickness and to protect employees from being discriminated against because of their serious health condition.  See Brockman v. Wyoming Dep’t of Family Servs., 342 F.3d 1159, 1164 (10th Cir. 2003); S. Rep. No. 103-3, at 11-12 (1993), reprinted in 1993 U.S.C.C.A.N. 3, 13-14; H.R. Rep. No. 101-28(I) (1990).  Accordingly, the court concluded that the self-care provision cannot pass the congruence-and-proportionality test.  In addition, the court rejected the plaintiff’s argument that the court should evaluate the FMLA’s immunity abrogation as a whole rather than considering the self-care provision individually.


With this decision, the Fourth Circuit joins the Fifth, Sixth, and Seventh Circuits in holding that Congress did not validly abrogate the states’ immunity with regard to the self-care provision of the FMLA.