Sims v. The University of Cincinnati

• Decision Date: 25 April 2000
• Docket Number: No. 99-3274,99-3274
• Citation: 219 F.3d 559
• Parties: (6th Cir. 2000) Naomi L. Sims, Plaintiff-Appellant, United States of America, Intervenor, v. The University of Cincinnati, Defendant-Appellee. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 559

219 F.3d 559 (6th Cir. 2000)

Naomi L. Sims, Plaintiff-Appellant, United States of America, Intervenor, v. The University of Cincinnati, Defendant-Appellee.

No. 99-3274

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: April 25, 2000

Decided and Filed: July 17, 2000

Appeal from the United States District Court for the Southern District of Ohio at Cincinnati; No. 96-00846--Herman J. Weber, District Judge.

Mark Joseph Byrne, JACOBS, KLEINMAN, SEIBEL & MCNALLY, Cincinnati, Ohio, for Appellant.

Robert J. Townsend, David H. Peck, TAFT, STETTINIUS & HOLLISTER, Cincinnati, Ohio, Stephen P. Carney, OFFICE OF THE ATTORNEY GENERAL OF OHIO, Columbus, Ohio, for Appellee.

Peter J. Smith, Mark B. Stern, U.S. DEPARTMENT OF JUSTICE, CIVIL DIVISION, APPELLATE STAFF, Washington, D.C., for Intervenor.

Before: GUY, NORRIS, and BATCHELDER, Circuit Judges.

OPINION

ALICE M. BATCHELDER, Circuit Judge.

This case requires us to decide whether the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. §§ 2601 et seq., is a valid exercise of Congress's power to enforce the Fourteenth Amendment and thus abrogates the States' Eleventh Amendment immunity. We hold that it is not and does not.

I

Naomi L. Sims worked as a medical secretary at the University of Cincinnati, where she was represented by District 925 Service Employees International Union. The Union and the University had concluded a collective bargaining agreement which reserved to the University the right to terminate any employee who accepted other employment without approval while on authorized leave. The University granted Sims a paid medical leave in early January 1994. During her leave, Sims was observed catering a wedding reception. The University discharged her for violating the collective bargaining agreement, and the decision was upheld after arbitration.

Sims filed a complaint in the district court alleging that the University had discharged her in violation of the FMLA and sections 4112.02(A) and 4112.99 of the Ohio Revised Code. The district court dismissed the state law claims without prejudice. On February 24, 1999, the district court dismissed the complaint for lack of subject matter jurisdiction, reasoning that the FMLA did not validly abrogate the Eleventh Amendment immunity of the University, an arm of the State of Ohio. Sims timely appeals. The United States has intervened to defend the constitutionality of the FMLA.

II

The FMLA entitles eligible employees to take leave for a total of twelve weeks per calendar year:

(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. § 2612(a)(1). Eligible employees are those who have been employed for a minimum of twelve months by the employer from whom leave is requested and who have performed a threshold 1250 hours of service. Id. § 2611(2)(A)(i) and (ii). Employees who return from FMLA leave are entitled to be restored by the employer to the same position they held before taking leave with equivalent benefits, pay and other terms and conditions of employment. Id. § 2614(a)(1). The employer may not otherwise retaliate against the employee for taking leave under the FMLA. Id. § 2615.

The FMLA authorizes employees to sue employers who violate the Act for damages and equitable relief. See 29 U.S.C. § 2617(a). The FMLA applies to employers who simultaneously employ at least fifty workers for at least twenty weeks during a calendar year, and expressly applies to state employers. See id. §§ 2611(4)(A)(iii), 203(x). These provisions seek "to promote the goal of equal employment opportunity for women and men, pursuant to [the Equal Protection] [C]lause." Id. § 2601(b)(5). The FMLA purports "to balance the demands of the workplace with the needs of families . . . in a manner that, consistent with the Equal Protection Clause of the Fourteenth Amendment, minimizes the potential for employment discrimination on the basis of sex by ensuring generally that leave is available for eligible medical reasons (including maternity-related disability) and for compelling family reasons, on a gender-neutral basis . . . ." Id. § 2601(b)(1), (4).

III

We review de novo the district court's order granting the defendant's motion to dismiss on Eleventh Amendment grounds. See Timmer v. Michigan Dep't of Commerce, 104 F.3d 833, 836 (6th Cir. 1997).

A

The Eleventh Amendment to the United States Constitution provides:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

U.S. Const. amend. XI. Through its provision of sovereign immunity, the Eleventh Amendment denies the federal courts jurisdiction to entertain a suit brought by an individual against a nonconsenting State. See Seminole Tribe v. Florida, 517 U.S. 44, 54 (1996); Hans v. Louisiana, 134 U.S. 1, 15 (1890). Congress may, however, abrogate the States' Eleventh Amendment sovereign immunity, so long as: (1) it unequivocally expresses its intent to abrogate the immunity; and (2) it acts "pursuant to a constitutional provision granting Congress the power to abrogate." Seminole Tribe, 517 U.S. at 55. We agree with the parties and the lower court that Congress has clearly expressed its intent to abrogate the States' Eleventh Amendment immunity to actions under the FMLA, thus satisfying the first of these two requirements. See 29 U.S.C. §§ 2611(4)(A)(iii), 203(x).

The second requirement demands that we determine whether the FMLA is appropriate legislation under § 5 of the Fourteenth Amendment, since this provision of the Constitution is the only currently recognized authority for Congress to abrogate the States' sovereign immunity. See Seminole Tribe, 517 U.S. at 59, 72-73. The Fourteenth Amendment provides, in relevant part:

Section 1. ... No 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.

....

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

U.S. Const. amend. XIV. Congress's enforcement authority under § 5 of the Fourteenth Amendment is remedial and preventative in nature. See City of Boerne v. Flores, 521 U.S. 507, 524 (1997). Section 5 grants Congress "the power to make the substantive constitutional prohibitions against the States effective" but does not award Congress the authority to substantively change the nature of constitutional rights. Id. at 519-522. Accordingly, legislation is plainly adapted to enforcing the Equal Protection Clause when there is "congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Id. at 520.

A pair of recent Supreme Court cases, Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank and Kimel v. Florida Board of Regents, have explored the contours of the "congruence and proportionality" test. In Florida Prepaid, the Court considered whether the Patent and Plant Variety Protection Remedy Clarification Act ("Patent Remedy Act"), 35 U.S.C. §§ 271(h), 296(a), which subjected States to suit for claims of patent infringement, validly abrogated the States' sovereign immunity. Florida Prepaid, 119 S. Ct. 2199, 2202 (1999). "[W]e must first identify the Fourteenth Amendment 'evil' or 'wrong' that Congress intended to remedy," the Court stated. Id. at 2207. Concluding that unremedied patent infringement by the States must give rise to the constitutional violation that Congress sought to redress, the Court then canvassed the statute's legislative history to determine whether the Patent Remedy Act responded to a history of widespread deprivation of constitutional rights of the sort Congress has faced in enacting proper prophylactic § 5 legislation. Id. at 2207-2210. Finding that "Congress identified no pattern of patent infringement by the States, let alone a pattern of constitutional violations," the Court held that the Act's provisions could not be understood as responsive to, or designed to prevent, unconstitutional behavior. Id. at 2207, 2210.

Kimel took up the Age Discrimination in Employment Act ("ADEA"), which made it unlawful for a state employer "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." Kimel, 120 S. Ct. 631, 637 (2000) (quoting 29 U.S.C. § 623(a)(1)). The Kimel Court began by judging this provision against the sweep of the Fourteenth Amendment's own command with regard to age discrimination. Because States may discriminate on the basis of age without offending the Equal Protection Clause if the age classification in question is rationally related to a legitimate state interest, the Court observed, the ADEA prohibited substantially more state employment decisions and practices than would be held unconstitutional under the applicable constitutional standard. Id. at 647. Acknowledging that § 5 does not preclude Congress from enacting reasonably prophylactic legislation, the Court next turned to the ADEA's legislative record to determine whether the statute was an appropriate remedy or, instead, "an attempt to substantively...