Thomson v. Ohio State University Hosp., C2-97-189.

• Decision Date: 08 May 1998
• Docket Number: No. C2-97-189.,C2-97-189.
• Citation: 5 F.Supp.2d 574
• Parties: Mary Ann THOMSON, Plaintiff, v. The OHIO STATE UNIVERSITY HOSPITAL, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

5 F.Supp.2d 574

Mary Ann THOMSON, Plaintiff, v. The OHIO STATE UNIVERSITY HOSPITAL, et al., Defendants.

No. C2-97-189.

United States District Court, S.D. Ohio, Eastern Division.

May 8, 1998.

Kevin J. O'Brien, O'Brien & Lease, Columbus, OH, for Plaintiff.

Keith W. Schneider, Maguire & Schneider, Columbus, OH, for Defendant.

MEMORANDUM OPINION AND ORDER

GRAHAM, District Judge.

Plaintiff Mary Ann Thomson brings this action against defendants The Ohio State University Hospital and The Ohio State University under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq. The matter is before the Court on the motion of the defendants to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).

I.

There are generally two varieties of motions challenging subject matter jurisdiction under Rule 12(b)(1). The first possibility, that defendants interpose a facial attack on the subject matter jurisdiction alleged in the complaint, merely questions the sufficiency of the pleading. When reviewing a facial attack, the district court liberally takes the allegations in the complaint as true. Murphy v. United States, 45 F.3d 520 (1st Cir. 1995); Sanner v. Board of Trade of City of Chicago, 62 F.3d 918 (7th Cir.1995); see generally Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350, at 218-220 (West 1990). The second possibility is that defendants are arguing the existence or non-existence of certain facts which deprive the court of subject matter jurisdiction. When a court reviews a complaint under a factual attack, no presumptive truthfulness applies to the factual allegations. Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990). A factual attack on subject matter jurisdiction commonly has been referred to as a "speaking motion." See generally Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1364, at 468-69 (West 1990). Where a factual controversy exists, the district court must weigh the conflicting evidence to arrive at the factual predicate that subject matter jurisdiction exists or does not exist. The trial court has wide discretion to allow affidavits, documents and even a limited evidentiary hearing to resolve disputed jurisdictional facts. Ohio Nat'l Life Ins. Co., 922 F.2d at 325. See also Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3rd Cir.1977).

The present motion is clearly of the former variety. Therein, defendants do not take issue with the facts of the case as alleged by plaintiff. Rather, defendants argue that plaintiff's complaint fails, on its face, to vest subject matter jurisdiction in this Court. Plaintiff's sole claim is brought under the FMLA, to which defendants argue they are immune from suit in this Court under the Eleventh Amendment to the United States Constitution. Accordingly, the allegations in plaintiff's complaint as taken as true.

II.

Plaintiff alleges in her complaint that she was an Administrative Assistant in the Psychiatric Services Department of The Ohio State University Hospital from April, 1994 to February 29, 1996. Plaintiff alleges that in November, 1995 her father was diagnosed with Alzheimer's disease and that she at that time undertook an effort to find long-term care for him. Plaintiff met with her supervisors, explained the situation, and requested unpaid leave for some unspecified period for the purpose of finding a health care provider for her father. Plaintiff's request was denied. Plaintiff tendered a resignation to defendants on or about February 1, 1996 which was effective February 29, 1996. Plaintiff alleges that on February 2, 1996, she was informed by a Robbin Kirkland in defendants' Human Resources Department of the provisions of the FMLA. On February 5, 1996, plaintiff tendered a document to defendants in which she purported to withdraw her resignation and she simultaneously she made another request for leave which was supported by documents detailing her father's condition. According to plaintiff, on or about February 27, 1996, she was called to a meeting in the office of the Director of Psychiatric Services at which her supervisors took the position that the FMLA did not require the provision of leave under these circumstances. Plaintiff alleges that, notwithstanding the provisions of the FMLA, her second request for leave was denied. Thereafter plaintiff resigned from her position.

On February 14, 1997, plaintiff filed this suit alleging a violation of the FMLA. On October 31, 1997, defendants filed the present motion seeking dismissal on the grounds that the Eleventh Amendment bars an action under the FMLA against the state and its instrumentalities.

III.

It is well established that the Eleventh Amendment to the United States Constitution prevents a federal court from entertaining a suit brought by a citizen against his own state. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). The Eleventh Amendment also protects instrumentalities of the state where they are "arm[s] or alter ego[s] of the state." Regents of University of California v. Doe, 519 U.S. 425, ___, 117 S.Ct. 900, 903, 137 L.Ed.2d 55 (1997); Hall v. Medical College of Ohio, 742 F.2d 299, 301 (6th Cir.1984).

The Eleventh Amendment bars suits against a state and its agencies unless the state has waived its sovereign immunity or Congress has overridden it by abrogation. Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979); Whittington v. Milby, 928 F.2d 188 (6th Cir.1991).

The state of Ohio has not clearly waived its sovereign immunity from suit in the case of claims brought under the FMLA. As a general matter, the state of Ohio has only consented to being sued in the Ohio Court of Claims pursuant to Ohio Rev.Code § 2743.02. Under Article I, § 16 of the Ohio Constitution, only the Ohio General Assembly may waive Ohio's sovereign immunity through legislative action. State of Ohio v. Madeline Marie Nursing Homes, 694 F.2d 449, 460 (6th Cir.1982). Plaintiff points to no statutory enactment whereby the General Assembly has done so in FMLA cases. Instead, plaintiff argues that Congress has abrogated the sovereign immunity of the state of Ohio to FMLA suits pursuant to its power under § 5 of the Fourteenth Amendment.

In determining whether Congress has effectively abrogated a state's sovereign immunity, the Court must determine: (1) whether Congress has unequivocally expressed its intent to abrogate immunity; and (2) whether Congress has acted pursuant to a valid exercise of power, that is, whether the law was passed pursuant to a constitutional provision which grants Congress the power to abrogate. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54-58, 116 S.Ct. 1114, 1123-1125, 134 L.Ed.2d 252 (1996).

The first prong of the Seminole test is not a novel concept in Supreme Court jurisprudence. It has been plainly established that for Congress to abrogate a state's Eleventh Amendment immunity it must express its intention to do so in unmistakable language within a statute. Atascadero State Hospital v. Scanlon, 473 U.S. 234, 243, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985). Congress clearly expressed an intention to abrogate the immunity of state governments to the FMLA when it included state and local governments as proper employer-defendants under the act. Under the FMLA, the term "employer" includes any "public agency" "as defined in section 203(x) of this title." 29 U.S.C. § 2611(4)(A)(iii). Title 29 U.S.C. § 203(x), which is the definitions section of the Fair Labor Standards Act, defines "public agency," in pertinent part, as "the Government ... of a State or political subdivision thereof; any agency of ... a State, or a political subdivision of a State[.]" In addition, the FMLA provides that an action to recover damages or equitable relief may be maintained against an employer in federal or state court. 29 U.S.C. § 2617(a)(2). Congress has clearly expressed its intent to abrogate the states' Eleventh Amendment immunity to actions under the FMLA.

In regard to the second prong of the Seminole test, the only currently recognized authority for Congress to abrogate the states' sovereign immunity, as indicated in Seminole, 116 S.Ct. at 1125, consists of Congress' enactment of legislation pursuant to its enforcement powers under § 5 of the Fourteenth Amendment of the United States Constitution. Section 5 of the Fourteenth Amendment provides that "Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

The Supreme Court has developed a test for determining whether legislation was properly enacted pursuant to `Congress' power under § 5 of the Fourteenth Amendment: (1) whether the statute may be regarded as an enactment to enforce the Equal Protection Clause; (2) whether it is plainly adapted to that end; and (3) whether it is not prohibited by, but is consistent with, the letter and the spirit of the constitution. Katzenbach v. Morgan, 384 U.S. 641, 651, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966); Wilson-Jones v. Caviness, 99 F.3d 203, 209 (6th Cir.1996). The Sixth Circuit Court of Appeals went on to point out in Wilson-Jones that:

It is clear to us that these three Katzenbach factors cannot be kept so permissive as to make them collapse into the "rationally related" test generally used for the enforcement clauses of other constitutional amendments. The Fourteenth Amendment contains rather specific constitutional goals, such as the elimination of race discriminatory by state actors, and also more general goals, such as the guarantee to every citizen of equal protection of the laws. The general goal of equal protection of law encompasses every facet of a citizen's interaction with government. If we were to say that an act is valid if it is rationally related to achieving...