Toeller v. Wisconsin Dept. of Corrections

• Decision Date: 25 August 2006
• Docket Number: No. 05-4064.,05-4064.
• Citation: 461 F.3d 871
• Parties: George S. TOELLER, Plaintiff-Appellee, v. WISCONSIN DEPARTMENT OF CORRECTIONS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

461 F.3d 871

George S. TOELLER, Plaintiff-Appellee, v. WISCONSIN DEPARTMENT OF CORRECTIONS, Defendant-Appellant.

No. 05-4064.

United States Court of Appeals, Seventh Circuit.

Argued April 4, 2006.

Decided August 25, 2006.

Robert M. Mihelich (argued), New Berlin, WI, for Plaintiff-Appellee.

Richard Briles Moriarty (argued), Office of the Attorney General Wisconsin Department of Justice, Madison, WI, for Defendant-Appellant.

Before POSNER, WOOD, and EVANS, Circuit Judges.

WOOD, Circuit Judge.

This case reaches us on an interlocutory appeal by the Wisconsin Department of Corrections (WDOC), challenging the district court's decision to deny its motion to dismiss based on the State's Eleventh Amendment immunity from suit. Although WDOC acknowledges that the Supreme Court decided in Nevada Dep't of Human Res. v. Hibbs, 538 U.S. 721, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003), that the family-care provision of the federal Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2602 et seq., validly abrogated the State's immunity, it argues that the self-care provisions of the same statute must be evaluated separately. Once this is done, the State continues, the applicable rule is the one upholding the State's Eleventh Amendment immunity in a claim under Title I of the Americans with Disabilities Act (ADA), which prohibits discrimination in employment against qualified persons with a disability, 42 U.S.C. §§ 12112(a), 12111(2), (5), (7). Bd. of Trs of the Univ. of Ala. v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001). While we consider the question a close one, in the end we agree with our sister circuits that Garrett controls the self-care provision, and thus that the State is entitled to immunity here. See Touvell v. Ohio Dep't of Mental Retardation and Developmental Disabilities, 422 F.3d 392 (6th Cir.2005), cert. denied, ___ U.S. ___, 126 S.Ct. 1339, 164 L.Ed.2d 54 (2006); Brockman v. Wyo. Dep't of Family Servs., 342 F.3d 1159 (10th Cir.2003). We therefore reverse.

I

In 1996, WDOC hired George Toeller as a Facilities Repair Worker at the Racine Correctional Institution. Two years later, he was transferred to the Racine Youthful Offender Facility. Between that time and 2000, he experienced a number of traumatic events, including the deaths of family members and close friends. He began to suffer from stress anxiety and delusional disorder, which made it impossible for him to work. As of July 2000, he began to receive a series of letters from WDOC charging him with various types of misconduct at the workplace and attempting to schedule a medical evaluation. During this time, Toeller was absent from work frequently; WDOC repeatedly asked him to provide medical certification for those absences, but he did not do so. He did, however, use sick days as WDOC policy required, until he exhausted them. Then, on October 5, 2000, he submitted a request for unpaid leave under the FMLA until October 23, 2000, when his doctor released him to work. WDOC never expressly granted or denied this request, but under its general policy, leave without pay is granted automatically if it is not expressly granted or denied within two business days.

When Toeller returned to work, on October 23, he was suspended with pay pending an investigation of a variety of infractions of workplace rules. On October 26, 2000, Toeller received a written notice of termination from the Warden, indicating that he was being fired for several reasons: threatening and attempting to inflict bodily harm on another person in July 2000; insubordination; and excessive unexcused absences from work. Toeller claims that these grounds were pretextual and that the real reason he was fired was because he took unpaid medical leave under the FMLA.

On August 29, 2003, he filed a complaint against WDOC in federal court, alleging that WDOC had terminated his employment in violation of the FMLA's self-care provisions, 29 U.S.C. § 2612(a)(1)(D), and seeking money damages. WDOC responded with a motion to dismiss on the ground of the State's Eleventh Amendment immunity from suit. The district court denied that motion. After some discovery, WDOC filed a motion for summary judgment on the merits, in which it again raised its Eleventh Amendment defense. The district court denied the motion, concluding that Congress validly abrogated the State's immunity in the FMLA and thus that the suit could proceed. The State has appealed from the second order denying its immunity defense.

II

Before considering the merits of WDOC's appeal, we must resolve a preliminary question of appellate jurisdiction. WDOC argues that this court has jurisdiction over the district court's order rejecting its defense, noting that it is established that "States . . . may take advantage of the collateral order doctrine to appeal a district court order denying a claim of Eleventh Amendment immunity." Nanda v. Bd. of Trs. of Univ. of Ill., 303 F.3d 817, 821 (7th Cir.2002) (quoting Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 147, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993)). Toeller acknowledges this rule, but he argues that WDOC failed to file its notice of appeal within the time permitted by FED. R. APP. P. 4(a)—a step that is also required before this court may entertain the appeal.

Toeller's position, however, rests on the mistaken premise that WDOC had one and only one opportunity to take an interlocutory appeal on this issue. He believes that this opportunity arose after the district court's initial denial of the State's motion to dismiss, which was docketed on December 23, 2003. But Behrens v. Pelletier, 516 U.S. 299, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996), held to the contrary, in the closely-related area of interlocutory appeals from denials of motions to dismiss on qualified immunity grounds. See id. at 307, 116 S.Ct. 834. We see no reason why the rationale of Behrens should not apply with equal force to interlocutory appeals of Eleventh Amendment immunity claims. From that standpoint, WDOC's notice of appeal easily satisfied Rule 4(a). The district court denied WDOC's motion for summary judgment (which included its renewed Eleventh Amendment defense) on September 29, 2005, and the State filed its notice of appeal comfortably within the 30-day period allowed by the rule, on October 17, 2005. We conclude that we have jurisdiction over this appeal and thus may proceed to the merits.

III

The first question we must reach—and as it turns out the last one—is whether WDOC is entitled to immunity from suit here. That is the question that is properly before us on interlocutory appeal. In addition, state sovereign immunity is the kind of preliminary question that should be resolved before the merits of the claim.

As the Supreme Court stated in Garrett, "[t]he ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not be sued by private individuals in federal court. . . . We have recognized, however, that Congress may abrogate the States' Eleventh Amendment immunity when it both unequivocally intends to do so and act[s] pursuant to a valid grant of constitutional authority." 531 U.S. at 363, 121 S.Ct. 955 (citations and quotation marks omitted). In a number of cases decided over the last ten years, the Court has upheld the immunity of the states in a variety of settings. See, e.g., Garrett, supra (immunity from suit under Title I of the ADA); Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000) (immunity from suit under the Age Discrimination in Employment Act); Coll. Savs. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999) (immunity in suit brought under federal Lanham Act for unfair competition); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (immunity from suit under Indian Gaming Regulatory Act). On the other hand, the Court has rejected immunity claims also, where it has found that Congress validly abrogated the States' sovereign immunity. See, e.g., Cent. Va. Cmty. Coll. v. Katz, ___ U.S. ___, 126 S.Ct. 990, 163 L.Ed.2d 945 (2006) (holding that suit to set aside preferential transfer in bankruptcy is not barred by state sovereign immunity, because federal supremacy was part of the original constitutional plan); United States v. Georgia, ___ U.S. ___, 126 S.Ct. 877, 163 L.Ed.2d 650 (2006) (holding that Title II of the ADA validly abrogates state sovereign immunity insofar as the lawsuit addresses conduct that actually violates the Fourteenth Amendment); Tennessee v. Lane, 541 U.S. 509, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004) (Title II of the ADA validly abrogates state sovereign immunity); Tenn. Student Assistance Corp. v. Hood, 541 U.S. 440, 124 S.Ct. 1905, 158 L.Ed.2d 764 (2004) (bankruptcy court's exercise of its in rem jurisdiction to discharge a student loan is not barred by state sovereign immunity); Hibbs, supra, 538 U.S. 721, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003) (family-care provision of the FMLA validly abrogated the state's immunity).¹

A number of general principles emerge from this developing jurisprudence. First, the sovereign immunity of the States is a fundamental feature of the constitutional design. Justice Thomas summarized this basic point in Northern Ins. Co. of N.Y. v. Chatham County, Ga., ___ U.S. ___, 126 S.Ct. 1689, 164 L.Ed.2d 367 (2006), a case in which the Court held that counties do not have the right to claim this immunity:

This Court's cases have recognized that the immunity of States from suit "is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today . . . except as altered by the plan of the Convention or certain constitutional Amendments." Alden v. Maine, 527 U.S. 706, 713, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999); see Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55-56, 116 S.Ct. 1114, 134 L.Ed.2d 252 (199...