Bryant v. Mississippi State University, 1:03 CV 577-D-D.

• Decision Date: 20 July 2004
• Docket Number: No. 1:03 CV 577-D-D.,1:03 CV 577-D-D.
• Citation: 329 F.Supp.2d 818
• Parties: Carron Leigh Williams BRYANT Plaintiff v. MISSISSIPPI STATE UNIVERSITY Defendant.
• Court: U.S. District Court — Northern District of Mississippi

329 F.Supp.2d 818

Carron Leigh Williams BRYANT Plaintiff v. MISSISSIPPI STATE UNIVERSITY Defendant.

No. 1:03 CV 577-D-D.

United States District Court, N.D. Mississippi, Eastern Division.

July 20, 2004.

Mary A. Connell, Mayo Mallette, PLLC, Oxford, MS, for Defendant.

Jim D. Waide, III, Waide & Associates, PA, Tupelo, MS, for Plaintiff.

OPINION GRANTING MOTION TO DISMISS

DAVIDSON, Chief Judge.

Presently before the Court is the Defendant's motion to dismiss. Upon due consideration the Court finds that the motion shall be granted.

A. Factual Background

The Plaintiff was employed by the Defendant for four years as a medical technologist. On June 6, 2003, the Plaintiff was injured in an automobile accident. As a result, the Plaintiff was absent from work from June 6-10 and June 17-20, 2003. The Plaintiff was placed on paid leave of absence from June 23-27, 2003. The Plaintiff was terminated on June 27, 2003.

The Plaintiff's claim is based upon the Family and Medical Leave Act ("FMLA" or "Act"). 29 U.S.C. §§ 2601 et seq. The Plaintiff asserts that she was terminated in violation of the FMLA's subsection that allows an employee leave from work when medically necessary. 29 U.S.C. § 2612(a)(1)(D). The Plaintiff is seeking damages stemming from the alleged FMLA violation along with reinstatement to her former position.¹

The Defendant has filed a motion to dismiss arguing that the Eleventh Amendment bars the Plaintiff's FMLA claim. In support of its position, the Defendant relies primarily on the Fifth Circuit's holding in Kazmier v. Widmann, 225 F.3d 519 (5th Cir.2000). Conversely, the Plaintiff insists that the Supreme Court's holding in Nev. Dept. of Human Res. v. Hibbs, 538 U.S. 721, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003), directly overruled Kazmier.

B. Standard for Review

A motion to dismiss under federal rule 12(b)(1) is employed to test the jurisdiction of the court. Pursuant to the federal rules of civil procedure, whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action. Fed.R.Civ.P. 12(h)(3). Of course, at any time the court may of its own volition examine potentially deficient subject matter jurisdiction. Burge v. Parish of St. Tammany, 187 F.3d 452, 465-66 (5th Cir.1999). Dismissal should not be granted unless it appears certain that there is no set of circumstances that would entitle the Plaintiff to relief. Benton v. U.S., 960 F.2d 19, 21 (5th Cir.1992).

C. Discussion

1. FMLA

The Family and Medial Leave Act of 1993 allows eligible employees to take up to twelve weeks of unpaid leave annually

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

29 U.S.C. § 2612(a)(1). The Act creates a private cause of action "against any employer in any Federal or State court of competent jurisdiction" who would "interfere with, restrain, or deny the exercise of" an employee's rights under the FMLA. 29 U.S.C. §§ 2617(a)(2), 2615(a)(1).

2. Development of Case Law

The Fifth Circuit held in Kazmier that FMLA's family-care subsection 2612(a)(1)(C) and self-care subsection 2612(a)(1)(D) did not validly "abrogate the States' Eleventh Amendment immunity." 225 F.3d at 526. In reaching this conclusion, the court utilized a bifurcated approach to analyze the constitutionality of the Act's subsections, rather than invalidating the Act's applicability to the states entirely. Kazmier, 225 F.3d at 525-27. The court found that inclusion of the family-care clause, subsection (C), was not based on any demonstrable evidence of public sector discrimination, and hence, was not a valid exercise of congressional power. Id. at 526. Additionally, the court held that there is no "evidence of a pattern of discrimination by the states against the temporarily disabled," thus, there is no "evil to which subsection (D) could possibly be congruent and proportional." Id. at 529.

Afterwards, the Supreme Court, recognizing a split among the Courts of Appeals, decided Hibbs, 538 U.S. 721, 123 S.Ct. 1972, 155 L.Ed.2d 953. Hibbs mentioned Kazmier to demonstrate the split of authority as to whether an "individual may sue a State for money damages in federal court for violation of 2612(a)(1)(C)." Hibbs, 538 U.S. at 725-26, 123 S.Ct. 1972. Affirming the Ninth Circuit's interpretation, the court held that subsection (C), the family-care provision, "is congruent and proportional to its remedial object" and, therefore, validly abrogates states' immunity. Id. at 740, 123 S.Ct. 1972.

The Defendant supports its motion by suggesting that Hibbs overruled Kazmier's holding only as to the family-care provision of the FMLA. In other words, the Defendant narrowly construes Hibbs' holding to read that the FMLA validly abrogates states' immunity only with regard to subsection (C), family-care, leaving the validity of the self-care provision, subsection (D), unresolved. The Defendant's interpretation is based, in part, on the Tenth Circuit's post-Hibbs decision in Brockman v. Wyo. Dept. of Family Serv., 342 F.3d 1159 (10th Cir.2003).

Facing factual circumstances similar to the case sub judice, the Brockman court held that subsection (D), self-care, was not implicated by the Hibbs decision. 342 F.3d at 1164. The court then determined that "Congress did not effect a valid abrogation of state sovereign immunity" regarding the inclusion of the self-care provision. Id. at 1165. The Tenth Circuit correctly noted that the result reached in Hibbs"rested squarely on the `heightened level of scrutiny' afforded gender discrimination." Brockman, 342 F.3d at 1164. Distinguishing the two cases, the Brockman court found that the family-care clause was intended to combat gender discrimination, but no such justification could sustain the self-care clause. Id.

The Plaintiff offers that the Hibbs decision effectively overruled Kazmier's holding. Noticeably absent from the Plaintiff's response is any reference to the Tenth Circuit's Brockman holding. Criticizing the Defendant's argument as "Clintonesque parsing," the Plaintiff further interprets Hibbs as a providing blanket abrogation of states' immunity where the FMLA is implicated. For support, the Plaintiff points to Toeller v. State of Wis. Dept. of Corr., 296 F.Supp.2d 946 (E.D.Wis.2003).

In Toeller, one of but a few post-Hibbs decisions², the plaintiff brought suit against his former state employer for violation of the FMLA self-care provision. Toeller, 296 F.Supp.2d at 947. The district court ruled on the precise issue that faced the Hibbs court and that this Court faces today; whether the FMLA is a valid exercise of congressional power that renders states amenable to suit. The Toeller court chose to extend Hibbs' narrow holding and held that "Congress's enactment of the self-care/medical provision of the FMLA is a proper exercise of its remedial authority under § 5 of the Fourteenth Amendment." Toeller, 296 F.Supp.2d at 950. For several reasons discussed below, the Court finds the Toeller approach unpersuasive and Brockman's result a more accurate interpretation of Hibbs.

In any event, the Plaintiff would afford the Hibbs holding greater latitude than its authors intended. Though severability of the FMLA has not been expressly addressed, the "Clintonesque parsing" of which the Plaintiff complains has, at least, been impliedly approved by the Supreme Court. There are numerous indications within the Hibbs opinion to support the conclusion that the court, too, participated in "Clintonesque parsing" of the FMLA's leave provisions. 538 U.S. at 725, 726, 737, 740 ("We hold that employees of the State of Nevada may recover money damages in the event of the State's failure to comply with the family-care provision of the Act;" "We grant certiorari to resolve a split ... whether an individual may sue a State for money damages in federal court for violation of § 2612(a)(1)(C);" framing the issue as "whether Congress acted within its constitutional authority when it sought to abrogate the States' immunity for purposes of the FMLA's family-leave provision;" "We believe that Congress' chosen remedy, the family-care leave provision of the FMLA, is `congruent and proportional to the targeted violation;'" "we conclude that 2612(a)(1)(C) is congruent and proportional to its remedial object.") (emphases added). Also, more recently, the Supreme Court seems to have acknowledge its own severance of the FMLA family-care provision in Tenn. v. Lane, ___ U.S. ___, 124 S.Ct. 1978, 1981, 1991, 158 L.Ed.2d 820 (2004) (recognizing "the Court approved the family-care leave provision of the Family and Medical Leave Act of 1993" and "we approved the family-care leave provision of the FMLA.") (emphases added). Furthermore, the Tenth Circuit offers additional support for this bifurcated approach. In Brockman, the court expressly noted that Hibbs did not overrule courts' prior invalidation of the self-care provision. Brockman, 342 F.3d at 1165 n. 3. Frankly, it would be utterly unreasonable to assume that the Supreme Court intended to make a broad sweeping approval of the FMLA's attempted abrogation of states' immunity in light of the precise and specific analysis related wholly to subsection (C) and the court's carefully worded holding. Thus, this Court declines to interpret Hibbs any more broadly than the Supreme Court so clearly intended.

3. Sovereign Immunity

The Eleventh Amendment bars private law suits in federal court against an unconsenting state. Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73, 120 S.Ct. 631, 145 L.Ed.2d 522...