The Univ. Of Tex. At El Paso v. Herrera

• Decision Date: 02 July 2010
• Docket Number: No. 08-1049.,08-1049.
• Citation: 322 S.W.3d 192
• Parties: The UNIVERSITY OF TEXAS AT EL PASO, Petitioner, v. Alfredo HERRERA, Respondent.
• Court: Texas Supreme Court

322 S.W.3d 192

The UNIVERSITY OF TEXAS AT EL PASO, Petitioner,

v.Alfredo HERRERA, Respondent.

Supreme Court of Texas. The UNIVERSITY OF TEXAS AT EL PASO, Petitioner,

v.Alfredo HERRERA, Respondent. No. 08-1049. Argued March 25, 2010.

Decided July 2, 2010.

Sean D. Jordan, Assistant Solicitor General, Greg W. Abbott, Attorney General of Texas, Clarence Andrew Weber, First Assistant Attorney General, David S. Morales, Office of the Attorney General of Texas, James C. Ho, Solicitor General of Texas, Timothy Earl Bray, General Litigation Division, Austin, TX, for University of Texas at El Paso.

John P. Mobbs, John Andrew Wenke, Law Office of John A. Wenke, El Paso, TX, for Alfredo Herrera.

Justice WILLETT delivered the opinion of the Court.

This case under the Family and Medical Leave Act (FMLA) raises two important immunity issues: (1) did Congress validly abrogate Texas' sovereign immunity under the FMLA's self-care provision; and if not (2) did the University of Texas at El Paso (UTEP) waive the State's immunity through a single sentence in its Handbook of Operating Procedures? We hold that UTEP's immunity was neither validly abrogated nor voluntarily waived, and the court of appeals erred in affirming the trial court's denial of UTEP's plea to the jurisdiction.

I. Background

Alfredo Herrera worked for UTEP as a heating, ventilation, and air-conditioning technician. In March 2005 he sustained an on-the-job injury to his left elbow. Herrera took approximately nine months leave and returned to work in January 2006. UTEP terminated Herrera's employment less than one month later.

Herrera sued UTEP, claiming it fired him for (1) taking personal medical leave under the self-care provision of the FMLA and (2) exercising his First Amendment rights by complaining about unsafe work conditions. UTEP filed a plea to the jurisdiction on the FMLA claim, contending it was barred by sovereign immunity. The trial court denied the plea, and a divided court of appeals affirmed, holding the self-care provision validly abrogated the States' sovereign immunity. ¹

The court of appeals anchored its holding on the United States Supreme Court's decision in Nevada Department of Human Resources v. Hibbs, ² which concerned the FMLA's family-care provision related to ill spouses, children or parents. The court of appeals reasoned that the self-care provision, like the family-care provision in Hibbs, was intended to advance equal-protection rights and was thus a valid exercise of Congress's powers under § 5 of the Fourteenth Amendment. ³ The dissenting justice emphasized that “[t]he majority opinion flies in the face of a mountain of contrary and persuasive legal authority.” ⁴

II. Discussion

A. Does the Self-Care Provision Validly Abrogate State Immunity?

Congress listed five purposes underlying the FMLA:

(1) to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity;

(2) to entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition;

(3) to accomplish the purposes described in paragraphs (1) and (2) in a manner that accommodates the legitimate interests of employers;

(4) to accomplish the purposes described in paragraphs (1) and (2) 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; and

(5) to promote the goal of equal employment opportunity for women and men, pursuant to such clause. ⁵

To achieve these purposes, the FMLA grants eligible employees ⁶ up to “12 workweeks of leave during any 12-month period” for various health-related reasons, ⁷ including an employee's “serious health condition,” ⁸ the so-called “self-care” provision at issue in this case. Employees returning from FMLA leave are entitled to be restored to their former position, or to a new position with equivalent benefits, pay, and other terms and conditions of employment. ⁹

Two threshold issues are undisputed: (1) Herrera is an “eligible employee” under the FMLA; and (2) the Act by its terms applies to state employers like UTEP. ¹⁰ Today's narrow dispute is whether Congress overreached in exposing States to FMLA claims under the self-care provision.

Our federal and state constitutional designs embody the principle of state sovereignty that shields States from private suits in their own courts and in the federal courts. ¹¹ Herrera's FMLA suit is thus barred by sovereign immunity unless (1) Congress validly abrogates it, or (2) the State voluntarily waives it. As for abrogation, federal legislation can overcome the States' immunity provided Congress (1) unequivocally expresses its intent to do so, and (2) acts “pursuant to a constitutional provision granting Congress the power to abrogate.” ¹² The first part is undeniable in this case; the text explicitly subjects States to FMLA claims, ¹³ and the Supreme Court has determined as much. ¹⁴ The second part is what matters here: did Congress have constitutional authority to abrogate the States' immunity for purposes of the FMLA's self-care provision? ¹⁵

The principal source for abrogation authority is § 5 of the Fourteenth Amendment: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” ¹⁶ As the Supreme Court has explained, “ Section 5 grants Congress the power ‘to enforce’ the substantive guarantees of § 1-among them, equal protection of the laws-by enacting ‘appropriate legislation.’ ” ¹⁷

Congress's § 5 enforcement power is not limitless, however. If federal legislation “reach[es] beyond the scope of § 1's actual guarantees,” it can validly abrogate the States' immunity only when it is “an appropriate remedy for identified constitutional violations, not ‘an attempt to substantively redefine the States' legal obligations.’ ” ¹⁸

To pass constitutional muster, § 5 legislation must meet the two-part test refined in City of Boerne v. Flores ¹⁹ -that is, it must (1) counter identified constitutional injuries by the States and (2) exhibit “congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” ²⁰ The first prong decides today's case, as nothing shows Congress was thinking of gender discrimination by the States when it enacted the self-care provision.

The court of appeals concluded Congress acted within its § 5 authority as the FMLA's legislative record identified unconstitutional gender bias by the States in the administration of leave benefits. ²¹ According to the court of appeals, Congress enacted the self-care provision to counter the stereotype that women utilize leave policies more than men and to protect women from such discrimination. ²²

The court of appeals justified its holding by pointing both to the congressional findings noted in Nevada Department of Human Resources v. Hibbs ²³ and the historical context in which the FMLA was enacted. In Hibbs, which concerned the Act's family-care provision, the Supreme Court held that Congress intended the FMLA to protect a right guaranteed by the Equal Protection Clause, specifically the right to be free from gender discrimination in the workplace. ²⁴ The Court reasoned that Congress had validly exercised its § 5 power to abrogate the States' immunity with respect to family-care claims because Congress had identified a pattern of gender discrimination on the part of the States. ²⁵ Notably, the Court was careful throughout Hibbs to make clear it was deciding the narrow issue of Eleventh Amendment immunity under the family-care provision, nothing else. ²⁶ The court of appeals pointed to Hibbs as proof that the Supreme Court already found that “Congress had before it sufficient evidence of gender-based discrimination in the administration of leave benefits to warrant the enactment of prophylactic § 5 legislation.” ²⁷ But all the evidence of unconstitutional State conduct cited in Hibbs concerned discrimination rooted in the belief that women are more likely than men to take leave to care for other family members, not themselves. ²⁸ Indeed, the court of appeals recognized that in Hibbs there was evidence that the States relied on stereotypes that women's family duties trumped their workplace duties, caring for family members is “women's work,” and men do not have the same domestic responsibilities as women. ²⁹ Such evidence regarding women taking leave to care for others does not equate to evidence regarding women taking leave to care for themselves. In Hibbs, the Supreme Court made clear that Congress was required to show evidence of pervasive gender discrimination by the States with regard to family leave. ³⁰ The same is required for the self-care provision. We must assess each FMLA provision separately, and abrogation of the States' immunity under this provision must rest on its own evidentiary basis; it cannot import evidence from the family-care provision. ³¹ There simply is no evidence-either in Congress's findings or elsewhere in the FMLA's legislative record-that women took more personal medical leave, or were thought to, than men. ³²

The court of appeals also examined the historical context in which the FMLA was enacted, ³³ concluding that Congress intentionally included the self-care provision to counter the stereotype that women take more advantage of leave policies than men and to provide women with protection from gender discrimination that might result from more-targeted legislation providing special protection only for pregnant women. ³⁴ This argument suffers from myriad flaws. First, there is no...