Kazmier v. Widmann

• Decision Date: 25 August 2000
• Docket Number: No. 99-30242,BRYANT-BANK,I,99-30242
• Citation: 225 F.3d 519
• Parties: (5th Cir. 2000) JANICE KAZMIER, Plaintiff-Appellee, and UNITED STATES OF AMERICA, Intervenor Plaintiff-Appellee, v. MARY WIDMANN, individually and in her official capacity as Chief attorney for the Louisiana Department of Social Services; STEPHEN L. MAYER, individually and in his official capacity as General Counsel for the Louisiana Department of Social Services; GLORIAndividually and in her official capacity as Secretary of the Louisiana Department of Social Services; Defendants-Appellants
• Court: U.S. Court of Appeals — Fifth Circuit

Page 519

225 F.3d 519 (5th Cir. 2000)

JANICE KAZMIER, Plaintiff-Appellee and UNITED STATES OF AMERICA, Intervenor Plaintiff-Appellee, v. MARY WIDMANN, individually and in her official capacity as Chief attorney for the Louisiana Department of Social Services; STEPHEN L. MAYER, individually and in his official capacity as General Counsel for the Louisiana Department of Social Services; GLORIA BRYANT-BANKS, Individually and in her official capacity as Secretary of the Louisiana Department of Social Services; Defendants-Appellants.

No. 99-30242

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

August 25, 2000

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Appeal from the United States District Court for the Eastern District of Louisiana

Before GARWOOD, WIENER, and DENNIS, Circuit Judges.

WIENER, Circuit Judge:

Defendants-Appellants, all officials of the Louisiana Department of Social Services (collectively "LDSS"), appeal from the district court's denial of their motions to dismiss on grounds of sovereign immunity (sometimes, "Eleventh Amendment immunity") a complaint brought against LDSS by Plaintiff-Appellant Janice Kazmier under the Family and Medical Leave Act ("FMLA").¹ As we conclude that the particular provisions of the FMLA that are at issue in the instant case do not validly abrogate the State of Louisiana's sovereign immunity, we reverse and remand with instructions to dismiss Kazmier's action.

I Facts and Proceedings

Kazmier was fired by LDSS after she took several weeks leave during 1995: She took at least one month of leave beginning in May of 1995 after breaking her arm in a bicycling accident, and took at least one more week of leave at the beginning of October 1995 to care for her terminally ill father. In addition, after breaking her wrist later that month, Kazmier failed to return to work for the rest of the calendar year. As a result of Kazmier's absences, LDSS terminated her employment on January 4, 1996.

Kazmier filed suit against LDSS in federal district court early in 1997, alleging that LDSS's termination of her employment violated several provisions of the FMLA. LDSS filed a motion to dismiss, contending that Kazmier was barred by the Eleventh Amendment from prosecuting her suit in federal court. The United States intervened on Kazmier's side, arguing that the FMLA validly abrogates the States' Eleventh Amendment immunity. The district court denied LDSS's motion to dismiss, and this appeal followed.

II Analysis

The Eleventh Amendment is rooted in the principle, imprecisely stated in its text but implicit in the federal structure of the Constitution, that the federal courts do not have jurisdiction to hear suits brought by private individuals against nonconsenting States.² This jurisdictional bar is not, however, absolute: The States' sovereign immunity can be abrogated by Congress pursuant to its enforcement power under Section 5 of the Fourteenth Amendment.³ The validity of a purported abrogation is assessed judicially by applying a two-part test: First, "Congress must unequivocally express[] its intent to abrogate the immunity";⁴ and, second, Congress must act "pursuant to a valid exercise of power."⁵

Kazmier contends that the FMLA validly abrogates the States' Eleventh Amendment immunity, making LDSS amenable to suit in federal court. Conceding arguendo that in enacting the FMLA Congress unequivocally expressed its intent to abrogate such immunity, LDSS insists that Congress failed to effect the intended abrogation pursuant to a valid exercise of power. Thus, the only issue before us is whether Congress's intent to make the pertinent provisions of the FMLA applicable to the States was validly enacted into law pursuant to Congress's enforcement power under Section 5 of the Fourteenth Amendment.

Section 1 of the Fourteenth Amendment states that "[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."⁶ Section 5 of the Fourteenth Amendment provides that "[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article."⁷ Kazmier and the United States argue that the FMLA is a valid congressional enforcement of the Fourteenth Amendment's guarantee that "[n]o State shall... deny to any person within its jurisdiction the equal protection of the laws."

"It is for Congress in the first instance to determine whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment, and its conclusions are entitled to much deference."⁸ The Supreme Court has noted, however, that "the same language that serves as the basis for the affirmative grant of congressional power also serves to limit that power."⁹ "Congress cannot decree the substance of the Fourteenth Amendment's restriction on the States.... It has been given the power 'to enforce,' not the power to determine what constitutes a constitutional violation."¹⁰ Thus, Congress's exercise of its Section 5 enforcement power is always authorized when enacting strictly remedial legislation that narrowly targets clearly unconstitutional State conduct.¹¹ In contrast, Congress can enact broad prophylactic legislation that prohibits States from engaging in conduct that is constitutional only when there is "a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end."¹²

The Supreme Court's recent decision in Kimel v. Florida Board of Regents¹³ provides the clearest guidance for determining whether legislation that purports to enforce the Fourteenth Amendment's Equal Protection Clause against the States is "congruent and proportional." A two part test emerges from Kimel. At the first step, we begin our analysis by determining what type of constitutional violation the statute under review is designed to prevent. The outermost limits of Congress's potential authority to enact prophylactic legislation is directly linked to the level of scrutiny that we apply in assessing the validity of discriminatory classifications of the targeted type. If legislation "prohibits substantially more state employment decisions and practices than would likely be held unconstitutional under the applicable equal protection... standard,"¹⁴ the legislation will not be considered congruent and proportional. Thus, Congress's authority is most broad when "we require a tight[] fit between [the discriminatory classifications in question] and the legitimate ends they serve," as we do with classifications that are based on race or sex.¹⁵ Conversely, congressional authority is most narrow when Congress tackles discrimination on the basis of classifications that are not constitutionally suspect: "States may discriminate on the basis of [such classifications] without offending the Fourteenth Amendment if the... classification in question is rationally related to a legitimate state interest."¹⁶

Having established, at Kimel's first step, the limits of Congress's potential authority under Section 5, we examine, at Kimel's second step, the legislative record of the statute under review to see whether it contains evidence of actual constitutional violations by the States sufficient to justify the full scope of the statute's provisions.¹⁷ The respect that must be accorded the States as independent sovereigns within our federal system prevents Congress from restraining them from engaging in constitutionally permissible conduct based on nothing more than the mere invocation of perceived constitutional bogeymen: Legislation that abrogates immunity must be proportional with and congruent to an identified pattern of actual constitutional violations by the States.¹⁸ If Congress "fail[s] to [include in the legislative record of a prophylactic statute any evidence of a] significant pattern of unconstitutional discrimination" by the States, then the statute will not be held to abrogate the States' sovereign immunity.¹⁹

A. Scope of Review

Section 2612(a)(1) of the FMLA²⁰ entitles eligible employees to take leave totaling twelve weeks per calendar year:

(A) Because of the birth of a son or daughter 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.

Kazmier has alleged that her employment with LDSS was terminated because she took leave (1) to care for her terminally father and (2) to recuperate from personal injuries. Consequently, of the section's four justifications for leave under the FMLA, only subsections (C) and (D) are implicated in the instant case.

As subsections (C) and (D) clearly authorize leave on different substantive grounds, logic dictates that each must be subjected to an independent "congruence and proportionality" analysis. Although we have been unable to locate any case law expressly addressing the issue of severability in the context of congruence and proportionality analysis,²¹ we discern no reason why the provisions of one of the FMLA's subsections could not validly abrogate the States' Eleventh Amendment immunity even if the provisions of some or all of the remaining subsections fail to do so. We shall therefore evaluate the congruence and proportionality of subsections (C) and (D) separately.

B. Subsection (C)

This subsection requires employers to permit each eligible employee to take some or all of his 12 weeks FMLA annual leave to provide care for family members suffering from serious health...