Nelson v. University of Texas at Dallas

• Decision Date: 10 July 2008
• Docket Number: No. 07-10660.,07-10660.
• Citation: 535 F.3d 318
• Parties: Robert T. NELSON. Plaintiff-Appellant, v. UNIVERSITY OF TEXAS AT DALLAS; David E. Daniel, as Administrative Head of the University of Texas at Dallas; Karen M. Jarrell, Individually; Vivian Rutlege, Individually, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

535 F.3d 318

Robert T. NELSON. Plaintiff-Appellant, v. UNIVERSITY OF TEXAS AT DALLAS; David E. Daniel, as Administrative Head of the University of Texas at Dallas; Karen M. Jarrell, Individually; Vivian Rutlege, Individually, Defendants-Appellees.

No. 07-10660.

United States Court of Appeals, Fifth Circuit.

July 10, 2008.

Robert Joseph Wiley (argued), Dallas, TX, for Plaintiff-Appellant.

Bill L. Davis (argued), Lars Hagen, General Litigation Div., Austin, TX, for Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Texas.

Before SMITH and PRADO, Circuit Judges, and YEAKEL, District Judge.^*

PRADO, Circuit Judge:

In this case, we must decide whether a claim for reinstatement under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601-54, is sufficient to bring a case within the Ex parte Young exception to Eleventh Amendment sovereign immunity. We conclude that it is and therefore REVERSE the judgment of the district court and REMAND for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff-Appellant Robert Nelson ("Nelson") was employed by Defendant-Appellee the University of Texas at Dallas ("UTD") for approximately one year. After being severely injured in a car accident and suffering the suicide of his son, Nelson went on FMLA leave on April 25, 2005. Nelson's doctor informed UTD that Nelson would need intermittent leave for at least four to six weeks in order to fully recover. UTD approved the request for leave, subject to its standard FMLA policies, which require notice of the timing and duration of the leave. On June 7, 2005, and prior to the expiration of the twelve weeks of leave guaranteed by the FMLA, UTD terminated Nelson for absenteeism when he did not call in or report to work for three consecutive days. Despite Nelson's request for reinstatement, UTD refused to reinstate him.

As a result, Nelson filed suit against UTD on August 29, 2005, for violations of the FMLA, seeking both damages and reinstatement. Nelson soon amended his complaint to include FMLA claims against Defendants-Appellees David Daniel ("Daniel") as the administrative head of UTD, Karen Jarrell ("Jarrell"), and Vivian Rutlege ("Rutlege").¹ All of the defendants filed motions to dismiss. The district court granted the motions brought by UTD, Jarrell, and Rutlege, holding that UTD was protected by Eleventh Amendment immunity and that Jarrell and Rutlege were not "employers" under the FMLA. Nelson has not appealed the dismissal of these parties. However, because Nelson sued Daniel in his official capacity, the district court did not grant Daniel's motion to dismiss at that time, given that the motion was premised on a suit against Daniel in his individual capacity.

Daniel then filed a motion to dismiss the suit brought against him in his official capacity on the ground of Eleventh Amendment immunity, which the district court granted. The district court ruled that Nelson's request for reinstatement did not fall within the Ex parte Young exception to Eleventh Amendment immunity because Nelson failed to allege a "continuing violation" of federal law. The district court reaffirmed its ruling when it denied Nelson's motion to vacate the judgment. Nelson timely appealed the dismissal of his suit against Daniel.

We have jurisdiction pursuant to 28 U.S.C. § 1291, as a final judgment has been entered. We review rulings on motions to dismiss de novo. Kennedy v. Chase Manhattan Bank USA, N.A., 369 F.3d 833, 839 (5th Cir.2004).

II. DISCUSSION

Because Nelson sued Daniel in his official capacity as head of UTD, Nelson's suit is treated as one against the State of Texas which, absent an exception to immunity, is barred by the Eleventh Amendment.² See McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407, 412 (5th Cir.2004) ("[T]he principle of state-sovereign immunity generally precludes actions against state officers in their official capacities ...."). To avoid Eleventh Amendment immunity, Nelson relies on the Supreme Court's decision in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), which created an exception to Eleventh Amendment immunity for claims for prospective relief against state officials who have been sued in their official capacities. Thus, the sole question in this appeal is whether Nelson's request for reinstatement is sufficient to invoke the Ex parte Young exception to Eleventh Amendment immunity.

A. The FMLA and Sovereign Immunity

Before reaching the merits of this appeal, we first pause to make clear that Nelson's FMLA claim is, in fact, subject to an Eleventh Amendment immunity defense. In pertinent part, the FMLA guarantees eligible employees twelve workweeks of leave during any twelve month period 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.

29 U.S.C. § 2612(a)(1).³ In this case, Nelson claims he was entitled to leave pursuant to subsection D.

This court in Kazmier v. Widmann declared that the Eleventh Amendment immunized states from suits for money damages brought under subsections C and D of § 2612(a)(1). 225 F.3d 519, 526-29 (5th Cir.2000). Several years later, however, the Supreme Court ruled that Congress had validly exercised its power under § 5 of the Fourteenth Amendment to abrogate the states' Eleventh Amendment immunity with respect to subsection C by enacting it to combat historic gender discrimination. Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 735, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003) (referencing "the States' record of unconstitutional participation in, and fostering of, gender-based discrimination in the administration of leave benefits"). The Court specifically noted evidence that the gender gap regarding leave was due to "the pervasive sex-role stereotype that caring for family members is women's work." Id. at 731, 123 S.Ct. 1972. Because Hibbs concerned only subsection C of § 2612(a)(1), the Court made no comment on whether Congress validly abrogated sovereign immunity under subsection D.

Since that time, the Sixth, Seventh, and Tenth Circuits have recognized that, despite the ruling in Hibbs, states may still assert an Eleventh Amendment immunity defense to claims brought pursuant to subsection D. Toeller v. Wis. Dep't of Corr., 461 F.3d 871, 877-80 (7th Cir.2006); Touvell v. Ohio Dep't of Mental Retardation & Developmental Disabilities, 422 F.3d 392, 400-05 (6th Cir.2005); Brockman v. Wyo. Dep't of Family Servs., 342 F.3d 1159, 1164-65 (10th Cir.2003). The rationale behind these decisions is that subsection D, which concerns leave for purposes of self-care as opposed to the care of family members, does not appear to be in response to any nationwide history of gender discrimination that would permit Congress to act under § 5 of the Fourteenth Amendment. See, e.g., Touvell, 422 F.3d at 400-05; Brockman, 342 F.3d at 1164. Therefore, those circuits concluded that Congress lacked the power to legislatively remove the states' immunity under subsection D. Toeller, 461 F.3d at 879-80; Touvell, 422 F.3d at 405; Brockman, 342 F.3d at 1165.

Although neither party to this appeal challenges whether sovereign immunity still protects states from liability for suits brought under subsection D, we 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. Consequently, Daniel may assert the defense of sovereign immunity in Nelson's suit against him in his official capacity under subsection D.

B. Reinstatement and Ex parte Young

Because the Eleventh Amendment bars suits against states for money damages incurred as a result of violating 29 U.S.C. § 2612(a)(1)(D), we must dismiss Nelson's claim against Daniel in his official capacity unless Nelson can demonstrate an exception to immunity. As noted above, Nelson relies on the exception to Eleventh Amendment immunity created by the Supreme Court in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Pursuant to the Ex parte Young exception, the Eleventh Amendment is not a bar to suits for prospective relief against a state employee acting in his official capacity. Stroman Realty, Inc. v. Wercinski, 513 F.3d 476, 482 (5th Cir.2008), petition for cert. filed, 76 U.S.L.W. 3611 (U.S. May 5, 2008) (No. 07-1387). Thus, "prospective injunctive or declaratory relief against a state [official] is permitted ... but retrospective relief in the form of a money judgment in compensation for past wrongs ... is barred." Brennan v. Stewart, 834 F.2d 1248, 1253 (5th Cir.1988). Nelson argues that his request for reinstatement is the sort of prospective relief that is permitted by the Ex parte Young doctrine.

As shown by Nelson, this circuit has always treated Ex parte Young as an appropriate vehicle for pursuing reinstatement to a previous job position. In Warnock v. Pecos County, we considered a district court's dismissal of a § 1983 action on the basis of Eleventh Amendment immunity. 88 F.3d 341 (5th Cir.1996). There, the plaintiff sought damages, reinstatement, and attorneys' fees from two state judges when they failed to reappoint her to a position that she had previously held. Id. at 343. We agreed that the suit for damages was barred by the Eleventh Amendment, but held that the claim for reinstatement could go forward because it was a claim for prospective relief. Id. Specifically...