Chittister v. Dept. Comm. and Econ. Dev.

• Decision Date: 30 June 2000
• Docket Number: No. 00-3140,00-3140
• Citation: 226 F.3d 223
• Parties: (3rd Cir. 2000) DAVID D. CHITTISTER, Appellant v. DEPARTMENT OF COMMUNITY AND ECONOMIC DEVELOPMENT; DAVID BLACK; LARRY SEGAL Argued:
• Court: U.S. Court of Appeals — Third Circuit

Page 223

226 F.3d 223 (3rd Cir. 2000)

DAVID D. CHITTISTER, Appellant v. DEPARTMENT OF COMMUNITY AND ECONOMIC DEVELOPMENT; DAVID BLACK; LARRY SEGAL

No. 00-3140

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued: June 30, 2000

Filed August 30, 2000

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA, Dist. Court No. 97-cv-01946, District Court Judge: Sylvia H. Rambo

[Copyrighted Material Omitted]

Counsel for Appellants: Andrew J. Ostrowski (argued) 2080 Linglestown Road, Ste. 201 Harrisburg, PA 17110

Counsel for Appellees: D. Michael Fisher, Attorney General J. Bart DeLone, Deputy Attorney General Calvin R. Koons, Senior Deputy Attorney General John G. Knorr, III, Chief Deputy Attorney General (argued) Office of Attorney General Appellate Litigation Section 15th Fl., Strawberry Square Harrisburg, PA 17120

Before: ALITO and McKEE, Circuit Judges, and FULLAM, Senior District Judge.^*

OPINION OF THE COURT

ALITO, Circuit Judge:

In this case, we must decide whether Congress validly abrogated the states' Eleventh Amendment immunity when it enacted provisions of the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. SS 2601-54, that require a broad class of employers, including states, to provide their employees with 12 weeks of leave "[b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee" and that permit employees to sue in federal court for violations of the Act. We agree with the District Court in this case and with the other Courts of Appeals that have considered this question that Congress did not validly abrogate the states' Eleventh Amendment immunity when it enacted these provisions. See Hale v. Mann, No. 99-7326, 219 F.3d 61, 69 (2d Cir. May 25, 2000); Garrett v. University of Alabama at Birmingham Board of Trustees, 193 F.3d 1214, 1219 (11th Cir. 1999), cert. granted on different issue, 120 S. Ct. 1669 (2000). We therefore affirm the decision of the District Court.

I.

On February 14, 1997, David D. Chittister, an employee of the Pennsylvania Department of Community and Economic Development, requested sick leave. He was granted leave through May 2, 1997. For reasons not relevant to this appeal, approximately ten weeks later, on April 21, 1997, Chittister's leave was revoked, and he was fired.

Chittister then filed this action in federal district court against the Department and two state officials. Chittister asserted a claim under the FMLA, alleging that the defendants had improperly denied him leave and had fired him while he was on approved, paid sick leave. He also asserted a claim under 42 U.S.C. S 1983 on the ground that the defendants had retaliated against him for the exercise of his First Amendment rights. The District Court granted summary judgment for the defendants on Chittister's retaliation claim, and Chittister took a separate appeal from that order.¹ A jury trial on the FMLA claim resulted in a verdict in Chittister's favor, but the District Court granted judgment as a matter of law in favor of the Department, holding that Chittister's FMLA claim against the Department was barred by the Eleventh Amendment. Chittister then took this appeal.

II.

Under the Eleventh Amendment, a plaintiff other than the United States or a state may not sue a state in federal court without the latter state's consent unless Congress abrogates the state's Eleventh Amendment immunity pursuant to a constitutional provision granting Congress that power. See Kimel v. Florida Board of Regents, 120 S. Ct. 631, 643-44 (2000); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 59 (1996). The Fourteenth Amendment confers such power, Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976), but Article I of the Constitution does not. See Seminole Tribe, 517 U.S. at 63-73.

The FMLA requires an employer to provide "12 workweeks of leave"

(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. S 2612(a)(1) (emphasis added). The Act makes it unlawful for "any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right" provided under the Act. 29 U.S.C. S 2615(a)(1). The Act also grants state employees, among others, a private right of action against their employers for violations of the Act. See 29 U.S.C. S 2617(a)(2)(A). As noted, Chittister sued his employer, the Pennsylvania Department of Community and Economic Development, alleging that the Department's "termination of [his] employment without granting [him] the leave to which he is entitled [was] a violation of the FMLA." Complaint at 5.

It is not disputed that the Department is an arm of the Commonwealth and is within the protection of the Eleventh Amendment. Moreover, although Chittister argues otherwise, it is clear that Pennsylvania has not consented to suit under the FMLA. The Pennsylvania Constitution provides that the Commonwealth may be sued only "in such manner, in such courts and in such cases as the Legislature may by law direct." Pa. Const. art. I, S 11 (emphasis added). The legislature has directed that the Commonwealth retains its sovereign immunity. See 1 Pa. Cons. Stat. Ann. S 2310 (West Supp. 2000) ("[I]t is hereby declared to be the intent of the General Assembly that the Commonwealth . . . shall continue to enjoy sovereign immunity and official immunity and remain immune from suit except as the General Assembly shall specifically waive the immunity."). It has waived immunity only for certain specified tort claims in suits for damages in state court. See 42 Pa. Cons. Stat. Ann. S 8522. The Supreme Court of Pennsylvania has held that the Commonwealth's immunity is otherwise intact. See Dean v. Commonwealth, 751 A.2d 1130, 1132 (Pa. 2000). The General Assembly has further provided that "[n]othing contained in this subchapter [including S 8522] shall be construed to waive the immunity of the Commonwealth from suit in Federal courts guaranteed by the Eleventh Amendment of the Constitution of the United States." S 8521(b). Thus, we have held that Pennsylvania has not consented to suit in federal court. See Wheeling & Lake Erie Ry. v. Public Util. Comm'n, 141 F.3d 88, 91 (3d Cir. 1998); Laskaris v. Thornburgh, 661 F.2d 23, 25 (3d Cir. 1981).

Chittister asserts that Pennsylvania consented to suit because an administrative policy "instructs the Commonwealth to post the notices required by the FMLA and its implementing regulations and specifically instructs the employees of their right to file suit to enforce its provisions." Appellant Br. at 29. However, waiver of Eleventh Amendment immunity is found only where the state "voluntarily invokes" federal jurisdiction or where the state "makes a clear declaration that it intends to submit itself" to federal jurisdiction. College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 119 S. Ct. 2219, 2226 (1999) (quotation marks omitted). Because only a command of the General Assembly is sufficient under Pennsylvania law to waive the Commonwealth's immunity, an administrative policy cannot amount to a "clear declaration" that Pennsylvania intends to submit itself to federal jurisdiction.

Chittister also asserts that Pennsylvania gave constructive consent to his suit by defending it on the merits and raising the issue of its immunity for the first time on appeal. It is settled, however, that Eleventh Amendment immunity may be raised for the first time on appeal even if the state defended the merits of the suit in the district court. See Edelman v. Jordan, 415 U.S. 651, 677-78 (1974); Wheeling & Lake Erie Ry., 141 F.3d at 91; College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 131 F.3d 353, 365 (3d Cir. 1997) ("Because the immunity issue sufficiently partakes of the nature of a jurisdictional bar, it is an issue that may be raised any time during the pendency of the case. Merely because a state appears and offers defenses on the merits of the case, it does not automatically waive Eleventh Amendment immunity.") (citations and quotation marks omitted). Thus, Chittister's contention that the Commonwealth consented to suit under the FMLA is without merit.

III.

Because the Commonwealth has not consented to suit, it may be sued in federal court only if Congress validly abrogated its Eleventh Amendment immunity. In order to abrogate Eleventh Amendment immunity, Congress must make its intention to do so "unmistakably clear in the language of the statute." Kimel, 120 S. Ct. at 640. The FMLA provides that "[a]ny employer who violates section 2615 of this title shall be liable to any eligible employee affected for damages . . . ." 29 U.S.C. S 2617(a)(1)(A). The Act then grants a private right of action to eligible employees: "An action to recover damages or equitable relief . . . may be maintained against any employer (including a public agency) . . . by any one or more employees for and in behalf of the employees." See 29 U.S.C. S 2617(a)(2)(A) (emphasis added).²

The language in the Age Discrimination in Employment Act that provides for a private right of action is almost identical to the enforcement language in the FMLA. See 29 U.S.C. S 216 (b) ("An action to recover the liability [under the ADEA] prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) . . . by any one or more employees for and in behalf of himself or themselves . . . .") (emphasis added). In Kimel, the Court held that this language in the ADEA represented an ...