Brockman v. Wyoming Dept. of Family Services

• Decision Date: 04 September 2003
• Docket Number: No. 01-8046.,01-8046.
• Citation: 342 F.3d 1159
• Parties: Kathleen Brockman, Plaintiff-Appellant, v. Wyoming Department of Family Services; and Glennda Lacey, Les Pozsgi, Merit Thomas, Robert D. Kuchera, Shirley R. Carson, and Dana Ward, each individually and in his/her official capacity with the Wyoming Department of Family Services, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

342 F.3d 1159

Kathleen Brockman, Plaintiff-Appellant, v. Wyoming Department of Family Services; and Glennda Lacey, Les Pozsgi, Merit Thomas, Robert D. Kuchera, Shirley R. Carson, and Dana Ward, each individually and in his/her official capacity with the Wyoming Department of Family Services, Defendants-Appellees.

No. 01-8046.

United States Court of Appeals, Tenth Circuit.

September 4, 2003.

COPYRIGHT MATERIAL OMITTED

Bruce T. Moats, of the Law Office of Bruce T. Moats, Cheyenne, WY, (Karen S. Beausoleil, Esq., Granite Canon, WY, with him on the briefs), for Plaintiff-Appellant.

Terry L. Armitage, Cheyenne, WY, for Defendants-Appellees.

Before HENRY, ANDERSON, and MURPHY, Circuit Judges.

HENRY, Circuit Judge.

Kathleen Brockman sued her former employer, the Wyoming Department of Family Services ("DFS"), and several employees of DFS in their individual and official capacities, claiming violations of various federal statutes and asserting state tort claims. Ms. Brockman appeals parts of the district court's order granting the defendants' motions for summary judgment on all of her claims. We exercised jurisdiction under 28 U.S.C. § 1291 and abated her appeal pending the Supreme Court's decision in Nevada Dep't of Human Resources v. Hibbs, ___ U.S. ___, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003). We now affirm.

I. BACKGROUND

Ms. Brockman worked full-time for DFS as a day-care licensor beginning in March of 1992. She received favorable job performance evaluations through 1996. During 1996, the manager of the office out of which Ms. Brockman worked allegedly began spreading rumors about Ms. Brockman's mental instability and accusing Ms. Brockman of being a lesbian. The manager apparently approached Ms. Brockman's supervisors with complaints regarding Ms. Brockman, and in the following months a number of meetings occurred at which Ms. Brockman alleges that she was targeted for unfair treatment by her supervisors. Starting in early 1997, Ms. Brockman began to receive negative job evaluations, and in response she filed multiple grievances objecting to the evaluations. Further problems ensued as Ms. Brockman and her supervisors engaged in discussions, short-lived agreements, warnings, and hostile exchanges.

In March of 1998, Ms. Brockman received a "needs improvement" evaluation. That year, Ms. Brockman began suffering the symptoms of post-traumatic stress disorder, the onset of which was allegedly triggered by the hostility of her supervisors. She later began seeing a counselor for depression, anxiety, and other physical symptoms.

During 1997 and 1998, Ms. Brockman had taken paid sick leave on a number of occasions. In a letter dated March 10, 1998, Ms. Brockman received notice that DFS was retroactively designating the paid sick leave that she had taken between February 10 and 27, 1998 as leave taken pursuant to the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. ("the FMLA"). DFS later retroactively counted an additional six weeks of leave towards Ms. Brockman's annual allowance of twelve weeks of FMLA leave. In January 1999, DFS informed Ms. Brockman that she had used her entire 12 weeks of FMLA leave and would have to work another 12-month period beginning January 22, 1999 to qualify for more leave time.

In February 1999, Ms. Brockman was suspended without pay for ten days for improper use of e-mail. At the end of that suspension, Ms. Brockman did not return to work. Instead, she notified DFS that she wished to take another twelve weeks of FMLA leave to treat the symptoms of her stress disorder. Allegedly, Ms. Brockman had on two occasions communicated to her supervisors her therapist's opinion that between one and three months of leave would allow her to recover and return to work. See Aplt's Reply Br. at 10. On April 19, 1999, DFS sent Ms. Brockman notice of its plan to terminate her employment, and she was terminated on May 17, 1999.

Ms. Brockman retained counsel and received a hearing before a Hearing Examiner in the Wyoming's Office of Administrative Hearings. The Examiner determined on summary judgment that DFS had established good cause for firing Ms. Brockman as required under state law. See Wyo. Stat. Ann. § 9-2-1019(a)(iii) (Michie 2003).

Ms. Brockman did not appeal the result of her administrative hearings. She filed suit in federal district against the State of Wyoming¹ and the DFS employees allegedly involved in creating the conditions that led to the onset of her symptoms and her firing, asserting a variety of claims under federal and state law. The district court granted the defendants' motion for summary judgment on all claims and awarded costs to the defendants.

Ms. Brockman appeals the following rulings by the district court: (1) dismissal, on the basis of collateral estoppel, of her claim for interference with, and denial of, medical leave under the self-care provision of the FMLA; (2) dismissal of her claim under the Rehabilitation Act that DFS failed to accommodate Ms. Brockman's disability and committed wrongful discharge; and (3) dismissal of Ms. Brockman's pendent state tort claim against the individual defendants for intentional infliction of emotional distress. Ms. Brockman also argues that sovereign immunity does not bar her claims under either the FMLA or the Rehabilitation Act. Finally, Ms. Brockman argues that it was "unconscionable" for the district court to award costs against her.

II. ANALYSIS

The district court granted summary judgment for the defendants on all of Ms. Brockman's claims. We review the grant of summary judgment de novo. Goldsmith v. Learjet, Inc., 90 F.3d 1490, 1493 (10th Cir.1996). Summary judgment is appropriate only if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

We analyze below each of the four substantive issues that Ms. Brockman raises on appeal: (1) FMLA claims, (2) Rehabilitation Act claims, (3) state tort claims, and (4) the award of costs to the defendants. Because state sovereign immunity is a threshold jurisdictional issue, we must address it first when it is asserted by a defendant. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (rejecting the doctrine of hypothetical jurisdiction and instructing that challenges to Article III jurisdiction must be resolved before a panel may address the merits of the underlying claims). For the FMLA and Rehabilitation Act claims, we therefore first consider the State's assertion of sovereign immunity before proceeding to the merits of each issue.²

As we discuss below, because we conclude that Ms. Brockman's FMLA claim against DFS is barred, we do not reach the merits of that claim. We do, however, consider her FMLA claim against the named individual defendants and her claim against the State for reinstatement. Similarly, we must consider whether the State is protected by sovereign immunity against claims under the Rehabilitation Act. Concluding that the State waived its immunity, we consider Ms. Brockman's challenge to the merits of the district court's ruling on those claims. We then consider the district court's ruling on Ms. Brockman's state tort claim. Finally, we consider the award of costs to the defendants.

A. Family and Medical Leave Act (FMLA) Claims

The district court held that Ms. Brockman's FMLA claims against all defendants were barred by collateral estoppel, reasoning that the results of the administrative hearing precluded the same issues from being retried in a federal court. We consider first the threshold question of whether Ms. Brockman's claims are barred by sovereign immunity and conclude that sovereign immunity is a bar only to Ms. Brockman's FMLA claims against DFS. Accordingly, we then address, and ultimately affirm, the district court's grant of summary judgment based on collateral estoppel.

Sovereign Immunity

The Family and Medical Leave Act authorizes qualified employees to take leave from their jobs in certain circumstances. Three of the four categories of eligibility relate to the care of family members: birth and care of a child, see 29 U.S.C. § 2612(a)(1)(A), adoption or foster care of a child, see § 2612(a)(1)(B), and care for a spouse, child, or parent who has a serious health condition, see § 2612(a)(1)(C). The final category is not directly related to the care of family members, allowing leave "[b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee." § 2612(a)(1)(D).

In Hibbs, the Supreme Court addressed whether the FMLA's third provision, for care of a close family member, validly abrogated states' sovereign immunity. See ___ U.S. at ___ _ ___, 123 S.Ct. at 1977-84. In concluding that § 2612(a)(1)(C) was a valid abrogation of sovereign immunity, the Court focused exclusively on the gender discrimination that motivated Congress's enactment of the FMLA. See, e.g., id. at 1979 (describing the pre-existing state leave policies as being attributable to "the pervasive sex-role stereotype that caring for family members is women's work"); id. at 1983 ("[S]tate practices continue to reinforce the stereotype of women as caregivers."). Accordingly, the Court's holding rested squarely on the "heightened level of scrutiny" afforded gender discrimination, id. at 1982, requiring that congressional remedies be narrowly targeted to alleviate the effects of such discrimination. See id. at 1983 ("The FMLA is narrowly targeted at the fault line between work and family — precisely where sex-based overgeneralization has been and remains strongest.")

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. The legislative history accompanying the passage of the FMLA reveals two motivations for the inclusion of the...