University of Texas at El Paso v. Herrera

• Decision Date: 25 November 2008
• Docket Number: No. 08-06-00271-CV.,08-06-00271-CV.
• Parties: The UNIVERSITY OF TEXAS AT EL PASO, Appellant, v. Alfredo HERRERA, Appellee.
• Court: Texas Court of Appeals

281 S.W.3d 575

The UNIVERSITY OF TEXAS AT EL PASO, Appellant, v. Alfredo HERRERA, Appellee.

No. 08-06-00271-CV.

Court of Appeals of Texas, El Paso.

November 25, 2008.

Sean D. Jordan, Office of the Attorney General, Austin, TX, for Appellant.

John P. Mobbs, El Paso, TX, for Appellee.

Before CHEW, C.J., McCLURE, and CARR, JJ.

OPINION

ANN CRAWFORD McCLURE, Justice.

This is an interlocutory appeal from the trial court's denial of a plea to the jurisdiction filed by the University of Texas as El Paso ("UTEP"). At issue is the self-care provision of the Family and Medical Leave Act. For the reasons that follow, we affirm.

FACTUAL SUMMARY

Alfredo Herrera was employed by UTEP as a heating, ventilation, and air-conditioning technician from 2002 to 2006. In March 2005, Herrera suffered an on-the-job injury to his elbow and was on medical leave until he returned to work on January 4, 2006. Less than a week later, Herrera re-injured his elbow at work. On January 27, 2007, Herrera's employment was terminated for failure to cooperate with his supervisor, refusal to follow instructions, failure to adhere to established rules and regulations, and disorderly and disruptive conduct. Herrera brought an employment discrimination suit against UTEP complaining he was terminated in retaliation for taking leave under the self-care leave provision of the Family and Medical Leave Act.¹ UTEP filed a plea to the jurisdiction alleging Herrera's retaliation claim is barred by sovereign immunity. The trial court denied the plea to the jurisdiction and UTEP filed notice of appeal.

SOVEREIGN IMMUNITY

UTEP raises three issues challenging the trial court's denial of its plea to the jurisdiction. It argues that the State did not voluntarily waive its sovereign immunity either in the Texas Constitution or by statute, and the UTEP Handbook of Operating Procedures cannot waive the State's sovereign immunity. Further, UTEP asserts that Congress did not validly abrogate state sovereign immunity from suit under the FMLA's self-care provision, and therefore, the trial court erred by denying the plea to the jurisdiction.

Standard of Review

When a lawsuit is barred by sovereign immunity, the trial court lacks subject matter jurisdiction, and dismissal with prejudice is proper. City of Austin v. L.S. Ranch, Ltd., 970 S.W.2d 750, 752 (Tex. App.-Austin 1998, no pet.). A plea to the jurisdiction is a dilatory plea by which a party contests the trial court's authority to determine the subject matter of the cause of action. City of Saginaw v. Carter, 996 S.W.2d 1, 2 (Tex.App.-Fort Worth 1999, pet. dism'd w.o.j.); State v. Benavides, 772 S.W.2d 271, 273 (Tex.App.-Corpus Christi 1989, writ denied). The plaintiff has the burden to allege facts affirmatively demonstrating that the trial court has subject matter jurisdiction. Texas Association of Business v. Texas Air Control Board, 852 S.W.2d 440, 446 (Tex.1993); City of Saginaw, 996 S.W.2d at 2. Subject matter jurisdiction is a legal question which we review de novo. City of Saginaw, 996 S.W.2d at 2; Texas Department of Health v. Doe, 994 S.W.2d 890, 892 (Tex.App.-Austin 1999, pet. dism'd). We consider the allegations in the petition and accept them as true. See City of Saginaw, 996 S.W.2d at 2-3. The plaintiff's jurisdictional pleadings are to be construed liberally in the plaintiff's favor and we look to the pleader's intent. See Texas Association of Business, 852 S.W.2d at 446. When deciding a plea to the jurisdiction, a court is not required to look solely to the pleadings, but may consider evidence and must do so when necessary to resolve the jurisdictional issues raised. Bland Independent School District v. Blue, 34 S.W.3d 547, 555 (Tex.2000); see County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002).

Family and Medical Leave Act

The FMLA authorizes qualified employees to take up to 12-weeks of unpaid leave from their jobs during any 12-month period for one or more of the following reasons:

(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.

(E) Because of any qualifying exigency (as the Secretary shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.

29 U.S.C.A. § 2612(a)(1) (West 1999). Subsection (C) is often referred to as the family-care provision while Subsection (D) is referred to as the self-care provision. The FMLA makes it unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under the FMLA. 29 U.S.C.A. § 2615(a)(1). It is unlawful for any employer to discharge or otherwise discriminate against any individual opposing any practice made unlawful by the FMLA. 29 U.S.C.A. § 2615(a)(2). It also is unlawful for any employer to discharge or in any other manner discriminate against any individual because the individual has filed any charge, or has instituted or caused to be instituted any proceeding, under or related to the FMLA. 29 U.S.C.A. § 2615(b).

Sovereign Immunity

The Eleventh Amendment to the U.S. 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 does not create or grant immunity but rather recognizes that states as separate sovereigns can limit, with few exceptions, their susceptibility to suit. Hoff v. Nueces County, 153 S.W.3d 45, 48 (Tex.2004), citing Alden v. Maine, 527 U.S. 706, 728-29, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). Federal courts have no jurisdiction over federal or state law claims against a state or state agency unless Eleventh Amendment immunity has been expressly waived by the state or abrogated by Congress pursuant to proper constitutional authority. Hoff, 153 S.W.3d at 48. Further, Eleventh Amendment immunity protects nonconsenting states from being sued in their own courts for federal law claims. Id.

Abrogation of Sovereign Immunity by Congress

Congress may abrogate the States' sovereign immunity if it manifests its intention to abrogate in the language of the statute and if it acts pursuant to a valid exercise of its power under Section 5 of the Fourteenth Amendment. Nevada Department of Human Resources v. Hibbs, 538 U.S. 721, 726, 123 S.Ct. 1972, 1976, 155 L.Ed.2d 953 (2003). The FMLA 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.A. § 2617(a)(2). The FMLA defines public agency to include both the government of a state or political subdivision and any agency of a state or a political subdivision of a state. 29 U.S.C.A. § 203(x)(West Supp.2008); 29 U.S.C.A. § 2611(4)(A)(iii). Based on this language in the statute, the Supreme Court found in Hibbs that Congress made unmistakably clear its intention to abrogate the States' sovereign immunity. Hibbs, 538 U.S. at 726, 123 S.Ct. at 1977.

In addressing whether Congress acted within its constitutional authority when it sought to abrogate the State's immunity for purposes of the FMLA's family-leave provision found in § 2612(a)(1)(C), the Supreme Court noted that two provisions of the Fourteenth Amendment are relevant to the inquiry: Section 5 grants Congress the power to enforce the substantive guarantees of § 1, which includes equal protection of the laws, by enacting appropriate legislation. Hibbs, 538 U.S. at 726-27, 123 S.Ct. at 1977. Congress may, in the exercise of its § 5 power, do more than simply proscribe unconstitutional conduct. Id., 538 U.S. at 727, 123 S.Ct. at 1977. Its § 5 power to enforce the substantive guarantees of § 1 of the Fourteenth Amendment includes the authority to both remedy and deter violation of guaranteed rights by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden. Id. In other words, Congress may enact prophylactic legislation that proscribes facially constitutional conduct, in order to prevent and deter unconstitutional conduct. Id., 538 U.S. at 727-28, 123 S.Ct. at 1977. Section 5 legislation reaching beyond the scope of § 1's actual guarantees must be an appropriate remedy for identified constitutional violations, not an attempt to substantively redefine the State's legal obligations. Hibbs, 538 U.S. at 728, 123 S.Ct. at 1977. The legislation must exhibit congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. Id., 538 U.S. at 728, 123 S.Ct. at 1977-78.

UTEP asserts that in recent years the Supreme Court has used the proportionality and congruence test to invalidate several congressional attempts to exercise its § 5 power. We understand UTEP to argue that it is extremely difficult for Congress to successfully abrogate state sovereign immunity. In support of this argument, it cites City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627, 119 S.Ct. 2199, 144 L.Ed.2d 575 (1999), Kimel v. Florida Board of Regents, 528 U.S. 62, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000), and Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001). Unlike the...