Touvell v. Ohio Dept. of Mental Retardation

• Decision Date: 09 September 2005
• Docket Number: No. 04-4011.,04-4011.
• Citation: Touvell v. Ohio Dept. of Mental Retardation, 422 F.3d 392 (6th Cir. 2005)
• Parties: Mary TOUVELL, Plaintiff-Appellant, v. OHIO DEPARTMENT OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

422 F.3d 392

Mary TOUVELL, Plaintiff-Appellant, v.OHIO DEPARTMENT OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES, Defendant-Appellee.

No. 04-4011.

United States Court of Appeals, Sixth Circuit.

Argued: July 21, 2005.

Decided and Filed: September 9, 2005.

ARGUED:

John S. Marshall, Marshall & Morrow, Columbus, Ohio, for Appellant.Diane Richards Brey, Office of the Attorney General, Columbus, Ohio, for Appellee.

ON BRIEF:

John S. Marshall, Louis A. Jacobs, Marshall & Morrow, Columbus, Ohio, for Appellant.Diane Richards Brey, Stephen P. Carney, Douglas R. Cole, Office of the Attorney General, Columbus, Ohio, for Appellee.

Before: BOGGS, Chief Judge; BATCHELDER, Circuit Judge; and GADOLA, District Judge.^*

OPINION

BOGGS, Chief Judge.

Mary Touvell appeals the district court's dismissal for lack of subject matter jurisdiction of her claim against the Ohio Department of Mental Retardation and Developmental Disabilities("the Department") under the Family and Medical Leave Act("FMLA"), 29 U.S.C. §§ 2601 et seq.The district court held that the FMLA's purported abrogation of Ohio's Eleventh Amendment immunity was unconstitutional as it related to the "self-care" provision of the FMLA under which Touvell sought leave, and that Ohio was accordingly immune from suit.For the reasons that follow, we affirm the judgment of the district court.

I

Mary Touvell was an unclassified Therapeutic Program Worker employed at the Cambridge Developmental Center, an institution for the mentally retarded operated by the Department.There is no dispute that the Department is a state agency for the purpose of Eleventh Amendment immunity analysis.

Touvell began work at the Developmental Center on September 9, 2002.One of her duties was to lift patients.According to her complaint, she began to experience back problems in November 2002.On or about September 5, 2003, Touvell's physician excused her from work because of her back pain.Touvell returned to work on September 16, 2003, but the lifting demands of her job continued to cause her distress, so her physician excused her from work from September 19 through October 17, 2003.Touvell was terminated on September 29, 2003, for excessive absenteeism.

Touvell brought this case under the FMLA, alleging that the Department interfered with her entitlement to leave under 29 U.S.C. § 2612(a)(1)(D), which requires employers to allow employees to take unpaid leave to care for their own serious health conditions, and that the Department retaliated against her for having taken leave, in violation of 29 U.S.C. § 2615(a)(1).For the purposes of this appeal we must assume that Touvell's leave was in fact protected by the FMLA.SeeR.S.W.W., Inc. v. City of Keego Harbor,397 F.3d 427, 433(6th Cir.2005)("In reviewing a motion to dismiss, we must construe the complaint in the light most favorable to the plaintiff. . . .").

On July 30, 2004, the district court dismissed the case for lack of subject matter jurisdiction, on the sole ground that the FMLA's purported abrogation of Ohio's Eleventh Amendment immunity was unconstitutional.The district court acknowledged that the Supreme Court had held in Nevada Department of Human Resources v. Hibbs,538 U.S. 721, 123 S.Ct. 1972, 155 L.Ed.2d 953(2003), that the "family-care" provision of the Act, § 2612(A)(1)(C), which entitles employees to take leave to care for seriously ill family members, abrogated state immunity, but held that the reasoning of Hibbs did not apply to the "self-care" provision under which Touvell claimed to be entitled to leave.Touvell timely appealed.

II

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

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.The Eleventh Amendment provides a type of sovereign immunity, and deprives the federal courts of jurisdiction to entertain a suit brought by an individual against a nonconsenting State.SeeHibbs,538 U.S. at 726, 123 S.Ct. 1972;Hans v. Louisiana,134 U.S. 1, 15, 10 S.Ct. 504, 33 L.Ed. 842(1890).

Congress may, however, abrogate such immunity if it (1) makes its intention to abrogate unmistakably clear in the language of the statute, and (2) acts pursuant to a valid exercise of its power under § 5 of the Fourteenth Amendment.SeeHibbs,538 U.S. at 726, 123 S.Ct. 1972.Section 5 of the Fourteenth Amendment grants Congress the power "to enforce" the substantive guarantees of § 1 of the Amendment, among them equal protection of the laws, by enacting "appropriate legislation.""Congress may, in the exercise of its § 5 power, do more than simply proscribe conduct that [the Supreme Court has] held unconstitutional."Hibbs,538 U.S. at 728, 123 S.Ct. 1972;see alsoBd. of Trustees of Univ. of Ala. v. Garrett,531 U.S. 356, 363, 121 S.Ct. 955, 148 L.Ed.2d 866(2001)("`Congress' power "to enforce"the Amendment includes the authority both to remedy and to deter violation of rights guaranteed thereunder by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment's text.'")(quotingKimel v. Fla. Bd. of Regents,528 U.S. 62, 81, 120 S.Ct. 631, 145 L.Ed.2d 522(2000))."In other words, Congress may enact so-called prophylactic legislation that proscribes facially constitutional conduct, in order to prevent and deter unconstitutional conduct."Hibbs,538 U.S. at 727-28, 123 S.Ct. 1972.

It remains the province of the courts, however, to determine the Fourteenth Amendment's substantive meaning and define the substance of constitutional guarantees.Id. at 728, 123 S.Ct. 1972.Furthermore, § 5legislation that reaches beyond the scope of § 1's specific guarantees must be an appropriate remedy for identified constitutional violations, not "an attempt to substantively redefine the States' legal obligations."Ibid.(citingKimel,528 U.S. at 88, 120 S.Ct. 631).Hibbs reaffirmed that we must distinguish appropriate prophylactic legislation from an impermissible redefinition of substantive rights by applying the test set forth in City of Boerne v. Flores,521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624(1997): valid § 5legislation must exhibit "congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end."Hibbs,538 U.S. at 728, 123 S.Ct. 1972(quotingCity of Boerne,521 U.S. at 520, 117 S.Ct. 2157).

The clarity of Congress's intent to abrogate state sovereign immunity with regard to the provisions of the FMLA is "not fairly debatable."Ibid.The Act enables employees to seek damages "against any employer (including a public agency) in any Federal or State court of competent jurisdiction,"29 U.S.C. § 2617(a)(2), and Congress defined "public agency" to include both "the government of a State or political subdivision thereof" and "any agency of . . . a State, or a political subdivision of a State,"§§ 203(x),2611(4)(A)(iii).This case therefore turns on whether Congress acted within its constitutional authority when it sought to abrogate the states' immunity for purposes of § 2612(a)(1)(D), the self-care provision of the Act under which Touvell claimed to be entitled to leave.

III

In Sims v. University of Cincinnati,219 F.3d 559(6th Cir.2000), we held that the FMLA as a whole was not a valid exercise of Congress's power under § 5 of the Fourteenth Amendment because, while Congress had clearly expressed its intent to abrogate state sovereign immunity, the legislative history of the FMLA "discloses no pattern of discrimination by the States, let alone a pattern of constitutional violations."Id. at 564.Rejecting arguments by the United States, an intervenor in the case, that the purpose of the FMLA was to remedy and prevent employment discrimination against women and against individuals with serious health conditions, we stated that "the most relevant legislative history, the committee reports from the 1993bill that was finally enacted into law, reveals that Congress had little concern with gender-related discrimination, and none at all with discrimination against persons with serious medical conditions."Rather, we concluded, the legislative history of the Act"suggest[s] that Congress was crafting a piece of social legislation rather than a remedy for ongoing state violations of the Equal Protection Clause."Ibid.

We acknowledged that "Congress' power `to enforce'the Amendment includes the authority both to remedy and to deter violation of rights guaranteed thereunder by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment's text."Kimel,120 S.Ct. at 644.But we also noted that Kimel"makes clear that Congress may not enact broad prophylactic legislation where it has failed to uncover any significant pattern of unconstitutional discrimination by the States."Sims,219 F.3d at 565.And, because Congress had failed, in our opinion, to uncover such a pattern with regard to the FMLA, we held that the Act was unconstitutionally overbroad.Ibid.

We identified two aspects of the FMLA that led to this conclusion.First, we noted that state employers could, consistently with the Fourteenth Amendment, discriminate with regard to employee leave on the basis of gender provided that such discrimination "serves important governmental objectives and the discriminatory means employed are substantially related to the achievement of those objectives."Ibid.(citingMiss. Univ. for Women v. Hogan,458 U.S. 718, 724, 102 S.Ct. 3331, 73 L.Ed.2d 1090(1982)).The FMLA, however, mandates leave for all covered...