Hibbs v. Dept. of Human Resouces, PLAINTIFF-APPELLANT

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Tashima
• Citation: 273 F.3d 844
• Parties: (9th Cir. 2001) WILLIAM HIBBS,, UNITED STATES OF AMERICA, INTERVENOR, v. DEPARTMENT OF HUMAN RESOURCES; CHARLOTTE CRAWFORD; NIKKI FIRPO,
• Decision Date: 11 December 2001
• Docket Number: DEFENDANTS-APPELLEES,PLAINTIFF-APPELLANT,No. 99-16321

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273 F.3d 844 (9th Cir. 2001) WILLIAM HIBBS, PLAINTIFF-APPELLANT, UNITED STATES OF AMERICA, INTERVENOR,
v.
DEPARTMENT OF HUMAN RESOURCES; CHARLOTTE CRAWFORD; NIKKI FIRPO, DEFENDANTS-APPELLEES. No. 99-16321 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted April 9, 2001
Submission Vacated April 10, 2001
Resubmitted May 1, 2001
Filed December 11, 2001

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Treva J. Hearne, Reno, Nevada, for the plaintiff-appellant.

Peter J. Smith, Civil Division, U.S. Department of Justice, Washington, D.C., for the intervenor.

Charles Hilsabeck, Deputy Attorney General, Reno, Nevada, for defendants-appellees.

Appeal from the United States District Court for the District of Nevada Howard D. McKibben, District Judge, Presiding D.C. No. CV 98-0205 HDM

Before: Reinhardt, Tashima,^* and Berzon, Circuit Judges.

Tashima, Circuit Judge:

William Hibbs brought suit in district court against the Nevada Department of Human Resources, its director, Charlotte Crawford, and Hibbs' supervisor, Nikki Firpo (collectively "Defendants"), for violations of the Family and Medical Leave Act of 1993 ( "FMLA"), 29 U.S.C.§§§§ 2601-2654, and 42 U.S.C. §§ 1983 and the Fourteenth Amendment, as well as various state-law claims. He timely appeals the district court's grant of Defendants' motion for summary judgment on his federal claims and the dismissal without prejudice of his state-law claims. We have jurisdiction under 28 U.S.C. §§ 1291, and we reverse.

I. BACKGROUND

Hibbs was an employee of the Nevada Department of Human Resources, Welfare Division (the "Welfare Division"). In April and May 1997, he requested leave to care for his ailing wife. His request was approved for the full 480 hours (12 weeks) of leave under the FMLA, to be used intermittently, as needed, between May 1, 1997, and December 31, 1997.

In June 1997, Hibbs requested 379.8 hours of "catastrophic leave," and he was granted 200 hours of such leave. He was informed that the leave would "be counted

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against[his] annual FMLA leave entitlement." In September 1997, Hibbs requested an additional 179.8 hours of catastrophic leave, and he was granted 180 hours of such leave.

The last day that Hibbs went to work was August 5, 1997; before then, he had already been using his leave time intermittently, as approved. In October 1997, the Welfare Division informed Hibbs that he had exhausted his 12 weeks of FMLA leave. Hibbs requested 200 more hours of catastrophic leave, but his request appears not to have been approved. ¹

By a hand-delivered letter of November 6, 1997, the Welfare Division informed Hibbs that no further leave time would be approved and that he was to report to work on November 12, 1997, or face disciplinary action. When Hibbs failed to report to work and did not call in to explain his absence, he was given a written reprimand in which the Welfare Division ordered him to report to work immediately or face"further disciplinary action up to and including termination."

On December 8, 1997, Hibbs was given a written "Specificity of Charges," which described the disciplinary charges against him, stated that the recommended disciplinary action was dismissal, and informed him that a predisciplinary hearing was scheduled. Hibbs appeared at the hearing, which took place on December 19, 1997; he was not represented by counsel at the hearing, but he had consulted with an attorney beforehand. Hibbs argued that the Welfare Division was misapplying the FMLA and that his unpaid FMLA leave should begin to run after his paid catastrophic leave ended, not concurrently with it. The hearing officer recommended Hibbs' dismissal. Effective December 22, 1997, Hibbs' employment with the Welfare Division was terminated.

On January 7, 1998, Hibbs filed a grievance with the Welfare Division. The grievance was rejected because the grievance procedure is available only to employees and, by then, Hibbs was no longer employed by the Welfare Division. Construing the grievance as an appeal of the decision of the predisciplinary hearing, the Welfare Division forwarded it to the Nevada Department of Personnel. The Nevada Personnel Commission dismissed the appeal with prejudice as untimely.

Hibbs then brought suit in federal district court against Defendants. He sought damages and injunctive and declaratory relief for violations of the FMLA and the Due Process Clause of the Fourteenth Amendment, as well as on several state-law grounds. On Defendants' motion for summary judgment, the district court concluded that the FMLA claim was barred by Nevada's Eleventh Amendment immunity and that Hibbs' Fourteenth Amendment rights had not been violated. Having granted summary judgment on the federal claims, the district court declined to exercise supplemental jurisdiction over the state-law claims and dismissed them without prejudice to their being pursued in state court. This timely appeal followed. On appeal, the United States has intervened to defend the validity of the FMLA's application to the states.

II. STANDARD OF REVIEW

We review the district court's grant of summary judgment de novo. Weiner v. San Diego County, 210 F.3d 1025, 1028 (9th Cir. 2000). The issue of whether a party is immune from suit under the Eleventh

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Amendment is reviewed de novo. Sofamor Danek Group, Inc. v. Brown, 124 F.3d 1179, 1183 n.2 (9th Cir. 1997); Harrison v. Hickel, 6 F.3d 1347, 1352 (9th Cir. 1993).

III. DISCUSSION

A. Eleventh Amendment Immunity and the FMLA

"Under the Eleventh Amendment, a state is immune from suit under state or federal law by private parties in federal court absent a valid abrogation of that immunity or an express waiver by the state." Mitchell v. Franchise Tax Bd. (In re Mitchell), 209 F.3d 1111, 1115-16 (9th Cir. 2000) (citing Coll, Sav. Bank v. Fla. Prepaid Post-secondary Educ. Expense Bd., 527 U.S. 666, 669-70 (1999); Seminole Tribe v. Florida, 517 U.S. 44, 64-68 (1996)). The same immunity also applies to state agencies. Fla. Dep't of State v. Treasure Salvors, Inc., 458 U.S. 670, 684 (1982).

Congress can abrogate state sovereign immunity if it both (1) unequivocally expresses its intent to do so, and (2) acts pursuant to a valid exercise of power. Seminole Tribe, 517 U.S. at 55 (citing Green v. Mansour, 474 U.S. 64, 68 (1985)). Congress cannot abrogate state sovereign immunity by means of its Article I powers. Id. at 72-73, 106 S. Ct. 423. It can, however, abrogate state sovereign immunity by means of its enforcement power under section 5 of the Fourteenth Amendment. Bd. of Trustees of the Univ. v. Garrett, 121 S. Ct. 955, 962 (2001); Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 80 (2000).

There is no case law in our circuit on the validity under the Eleventh Amendment of private FMLA suits against the states.² Seven other circuits have held that the FMLA was not enacted pursuant to a valid exercise of Congress' section 5 power. Laro v. New Hampshire, 259 F.3d 1, 11 (1st Cir. 2001); Townsel v. Missouri, 233 F.3d 1094, 1096 (8th Cir. 2000); Chittister v. Dep't of Cmty. & Econ. Dev., 226 F.3d 223, 229 (3d Cir. 2000); Kazmier v. Widmann, 225 F.3d 519, 526, 529 (5th Cir. 2000); Sims v. Univ. of Cincinnati, 219 F.3d 559, 566 (6th Cir. 2000); Hale v. Mann, 219 F.3d 61, 69 (2d Cir. 2000); Garrett v. Univ. of Ala. at Birmingham Bd. of Trustees, 193 F.3d 1214, 1220 (11th Cir. 1999), rev'd on other grounds, 121 S. Ct. 955 (2001). However, only Kazmier expressly involves the FMLA provision at issue in Hibbs' case, namely, §§ 2612(a)(1)(C), which provides for leave to care for a sick family member. See Kazmier, 225 F.3d at 525-26. The other cases either fail to state which provision of the FMLA is at issue or involve only §§ 2612(a)(1)(D), which provides for ordinary sick leave (i.e., leave occasioned by the employee's own illness). See Laro, 259 F.3d at 11; Townsel, 233 F.3d at 1095-96; Chittister, 226 F.3d at 225; Sims, 219 F.3d at 560-61; Hale, 219 F.3d at 65,

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69; Garrett, 193 F.3d at 1219.³ The difference matters because §§ 2612(a)(1)(C) can more plausibly be defended as an attempt to remedy gender discrimination. See Part III.A.3.d and e, infra. For this reason, none of our sister circuits' cases, except Kazmier, is particularly pertinent to the analysis of §§ 2612(a)(1)(C) under the Eleventh Amendment.

In Hibbs' case, the district court held that Nevada has not waived its Eleventh Amendment immunity. The court also held that the FMLA does not contain a sufficiently clear expression of congressional intent to abrogate Eleventh Amendment immunity, and that, in any case, the FMLA was not enacted pursuant to a valid exercise of the section 5 enforcement power. For the reasons given below, we conclude that the district court erred both in finding that congressional intent to abrogate is not sufficiently clear and in holding that the FMLA was not enacted pursuant to a valid exercise of Congress' section 5 power.

1. Waiver

Hibbs argues that Nevada has waived its immunity to private suits under the FMLA. Hibbs' argument is based on the following factual allegations: (1) Nevada has enacted a statute similar to the FMLA; (2) Nevada state agencies post information in their offices regarding their employees' rights under the FMLA; and (3) Nevada state agencies teach seminars informing their employees of their rights under the FMLA.

We do not agree. The Supreme Court has held that Eleventh Amendment immunity cannot be constructively waived. College Sav. Bank, 527 U.S. at 678 (describing with approval statements in prior cases that "there is `no place' for the doctrine of constructive waiver in our sovereign-immunity jurisprudence" and that the Court will " `find waiver only where stated by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable...