Cohen v. Nebraska Dept. Administrative Services, 4:99CV3171.

• Decision Date: 08 February 2000
• Docket Number: No. 4:99CV3171.,4:99CV3171.
• Citation: 83 F.Supp.2d 1042
• Parties: Carol COHEN, Plaintiff, v. State of NEBRASKA, DEPARTMENT OF ADMINISTRATIVE SERVICES, DIVISION OF CENTRAL DATA PROCESSING; David Hattan, James Unverferth and George Gillespie; and Resource Support Associates, Inc.; Gerald Barton and Philip J. Rossi, Defendants.
• Court: U.S. District Court — District of Nebraska

83 F.Supp.2d 1042

Carol COHEN, Plaintiff, v. State of NEBRASKA, DEPARTMENT OF ADMINISTRATIVE SERVICES, DIVISION OF CENTRAL DATA PROCESSING; David Hattan, James Unverferth and George Gillespie; and Resource Support Associates, Inc.; Gerald Barton and Philip J. Rossi, Defendants.

No. 4:99CV3171.

United States District Court, D. Nebraska.

February 8, 2000.

Elaine A. Waggoner, Sean M. Reagan, Waggoner Law Firm, Lincoln, NE, for plaintiff.

Patrick J. Barrett, McGrath, North Law Firm, Omaha, NE, for defendants.

MEMORANDUM AND ORDER

KOPF, District Judge.

This is an action stemming from the termination of plaintiff Carol Cohen's employment after she took unpaid leave to care for her ailing father. Cohen brings claims under the Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601-2654 (1999) ("FMLA"), 42 U.S.C. § 1983 (Supp. 1999), 42 U.S.C. § 1985 (1994), and the Employment Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001, et seq. (1999) ("ERISA"), as well as state claims for breach of contract and tortious interference with a contractual relationship.

Pending before the court is a motion to dismiss (filing 49) filed by defendants State of Nebraska, Department of Administrative Services, Division of Central Data Processing ("State"); David Hattan; James Unverferth; and George Gillespie.

BACKGROUND

Carol Cohen's amended complaint (filing 46) alleges that Cohen, a Nebraska resident, was an employee of Resource Support Associates, Inc., ("RSA") a Colorado corporation that contracted with the State of Nebraska ("State") to provide staff members to perform computer work for the State. The contract provided that RSA would supply computer specialists and experts to the State and that such individuals would be supervised by the State, but paid by RSA. (Filing 46, Amended Complaint ¶ 13.) Cohen alleges that defendants Hattan, Unverferth, and Gillespie were State employees who worked in the Division of Central Data Processing and who "exercised supervisory responsibilities in regard to plaintiff and carried out the terms and conditions of the contract between Defendant State and Defendant RSA." (Id. ¶¶ 7-9.)

Cohen brings an FMLA claim against the State and section 1983 and 1985 claims against defendants Hattan, Gillespie, and Unverferth, requesting monetary damages in the form of back and front pay, compensatory damages, and punitive damages, as well as attorney fees. Specifically, Cohen alleges that the State violated the FMLA when it terminated Cohen after she requested leave to care for her ailing father; that defendants Hattan and Gillespie violated her due process and equal protection rights when her employment was terminated; that defendant Unverferth violated Cohen's due process and equal protection rights when he refused to accept her application to perform as an independent contractor for the State six months after she was terminated due to a change in unwritten State policy; and that Hattan, Gillespie, and Unverferth conspired to deprive Cohen of her due process and equal protection rights when they took the above actions.

Cohen's amended complaint contains no indication as to whether she sues the State defendants in their official or individual capacities. While Cohen's initial complaint (filing 1) explicitly stated the capacities in which the defendants were being sued, Cohen deleted all such references in her amended complaint. NELR 15.1 states that an amended pleading shall "supersede the pleading amended in all respects; no portion of the prior pleading may be incorporated into the proposed amended pleading by reference." Therefore, the complaint that is in effect is one that implicates the Eleventh Amendment and one that lacks a clear statement that state officials are being sued in their personal capacities. When faced with a complaint such as this, the Eighth Circuit Court of Appeals requires me to interpret the complaint as including only official-capacity claims. Murphy v. State of Arkansas, 127 F.3d 750, 754-55 (8th Cir. 1997) (absent clear statement that state officials were being sued in personal capacities, court will interpret complaint as raising only official-capacity claims, not only to provide notice to defendants, but because Eleventh Amendment presents jurisdictional limit on federal courts in civil rights cases against states and state employees; stating that "[a]lthough other circuits have adopted a more lenient pleading rule, we believe that our rule is more consistent with the Supreme Court's Eleventh Amendment jurisprudence" (internal citation omitted)); Nix v. Norman, 879 F.2d 429, 431 (8th Cir.1989) (same); Egerdahl v. Hibbing Community College, 72 F.3d 615, 619-20 (8th Cir.1995) (person wishing to sue state official in personal capacity must so specify in complaint; if complaint is silent regarding capacity in which plaintiff sues, court will interpret complaint as containing only official-capacity claims; "cryptic hint" in plaintiff's complaint regarding capacity not sufficient).

DISCUSSION

A. FMLA Claim Against State

The defendant State moves to dismiss Cohen's FMLA claim against it for the reason that this claim is barred by the doctrine of sovereign immunity. By virtue of the Eleventh Amendment¹, a state is immune from suits brought in federal court by its own citizens and by citizens of other states unless (1) the state has unequivocally waived its sovereign immunity and has consented to suit in federal court, or (2) Congress has unequivocally, by legislation, abrogated state immunity in order to effectuate the provisions of the Fourteenth Amendment. Kentucky v. Graham, 473 U.S. 159, 169, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 97-100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); Burk v. Beene, 948 F.2d 489, 492-494 (8th Cir.1991). The parties in this case agree that the State of Nebraska has not generally waived its sovereign immunity, nor has it explicitly waived its Eleventh Amendment immunity with regard to FMLA cases brought against it.

Thus, the question in this case is whether Congress, in enacting the FMLA, unequivocally abrogated the states' immunity, a question which requires resolving two questions: (1) did Congress unequivocally express its intent to abrogate the states' immunity; and (2) if it did, whether Congress acted pursuant to a valid grant of constitutional authority. Kimel v. Florida Bd. of Regents, ___ U.S. ____, 120 S.Ct. 631, 640, 145 L.Ed.2d 522 (2000) (citing Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55, 116 S.Ct. 1114, 145 L.Ed.2d 252 (1996)). Both parties in this case agree that the FMLA expresses a clear intent to abrogate the states' sovereign immunity; however, they differ regarding whether Congress acted pursuant to a valid grant of constitutional authority when it enacted the FMLA.

The only circuit court and all of the district courts that have considered this issue since 1998 have concluded that Congress lacked the power to abrogate the states' immunity from suit under the FMLA. Garrett v. University of Alabama at Birmingham Bd. of Trustees, 193 F.3d 1214 (11th Cir.1999) (Congress lacked authority to abrogate sovereign immunity of states on claim arising under FMLA provision dealing with leave for employee due to employee's own serious health condition), pet. for cert. filed, No. 99-1240 (Jan. 24, 2000); Kilvitis v. County of Luzerne, 52 F.Supp.2d 403, 409 (M.D.Pa.1999) (assuming Congress evinced clear intention to abrogate Eleventh Amendment immunity, abrogation of such immunity for FMLA suits exceeded congressional authority; rather than attempting only to enforce Equal Protection Clause in FMLA, Congress created statutory entitlement to 12 weeks of leave for eligible employees; "This is patently the sort of substantive legislation that exceeds the proper scope of Congress' authority under § 5."); Sims v. University of Cincinnati, 46 F.Supp.2d 736 (S.D.Ohio 1999) (Congress did not effectively abrogate states' immunity from suit under FMLA); Post v. State, 1998 WL 928677 (D.Kan. Dec.10, 1998) (Eleventh Amendment bars FMLA claims against state agencies); Driesse v. Florida Bd. of Regents, 26 F.Supp.2d 1328 (M.D.Fla.1998) (Congress failed both prongs of Seminole Tribe in enacting FMLA; FMLA not congruent and proportional to goal of preventing gender discrimination in workplace; by providing valuable economic benefit to employees, Congress enacted substantive legislation that exceeded its enforcement powers under section 5 of Fourteenth Amendment); McGregor v. Goord, 18 F.Supp.2d 204 (N.D.N.Y.1998) (Congress, in passing FMLA, failed to properly abrogate states' Eleventh Amendment immunity; rather than enforcing Equal Protection Clause, Congress attempted to define equal protection as 12 weeks of leave for eligible employees); Thomson v. Ohio State Univ. Hosp., 5 F.Supp.2d 574, 580 (S.D.Ohio 1998) (same; noting that "the FMLA does not merely make it illegal for employers to treat requests for leave differently on the basis of gender, but instead mandates that employers provide employees with a new and valuable benefit").²

I have carefully examined each of the above decisions, as well as the abrogation analysis contained in recent decisions by the United States Supreme Court and the Eighth Circuit Court of Appeals³ as applied to other acts, and I conclude, for the reasons stated in the above cases, that Congress did not effectively abrogate the states' sovereign immunity from suit under the FMLA, and the Eleventh Amendment therefore bars Plaintiff's FMLA claim against the State. Accordingly, the State's motion to dismiss Plaintiff's FMLA claim against it must be granted.

B.1983 and 1985 Claims Against Hattan, Gillespie, and Unverferth

As stated above, Cohen brings claims under 42 U.S.C. §§ 1983 and 1985 against defendants Hattan, Gillespie, and Unverferth, seeking monetary damages. These defendants move to dismiss Cohen's section 1983 and 1985 claims against them for...