Wilson v. Executive Office of Health and Human

606 F.Supp.2d 160

Duane WILSON, Plaintiff v. The EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES, Defendant.

Civil Action No. 08-30214-KPN.

United States District Court, D. Massachusetts.

April 1, 2009.

Jeffrey S. Morneau, Donohue, Hyland & Donohue, PC, Holyoke, MA, for Plaintiff.

Bart Q. Hollander, Attorney General's Office, Springfield, MA, for Defendant.

MEMORANDUM AND ORDER WITH REGARD TO DEFENDANT'S MOTION TO DISMISS (Document No. 7)

NEIMAN, United States Magistrate Judge.

Duane Wilson ("Plaintiff") brings this action against his employer, Massachusetts' Executive Office of Health and Human Services ("Defendant"), with regard to alleged violations of the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. Defendant, raising an interesting question of law—whether Congress's enactment of the "self-care" leave provision of the FMLA validly abrogated the Eleventh Amendment immunity of the states and their divisions from private damages actions—has moved to dismiss Plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. The parties have consented to the jurisdiction of this court. See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73.

For the reasons that follow, this court agrees with Defendant that Eleventh Amendment immunity bars Plaintiff's "self-care" leave claims. However, since the instant action also involves the "familycare" leave provision of the FMLA (for which Defendant agrees that Congress validly abrogated the states' Eleventh Amendment immunity), Defendant's motion to dismiss will be allowed in part only.

I. STANDARD OF REVIEW

In considering a Rule 12(b)(1) motion to dismiss, the court must "construe the Complaint liberally and treat all wellpleaded facts as true, according the plaintiff the benefit of all reasonable inferences." Murphy v. United States, 45 F.3d 520, 522 (1st Cir.1995). Unless the plaintiff can prove the existence of subject matter jurisdiction, his complaint should be dismissed. See id.

II. BACKGROUND

The following facts come directly from the complaint and are stated in a light most favorable to Plaintiff, the party opposing dismissal. See K.W. Thompson Tool Co. v. United States, 836 F.2d 721, 726 (1st Cir.1988). In summary, Plaintiff, a Level 1 worker, alleges that between July 10, 2007, and March 12, 2008, there were three events for which he missed work. (Complaint ¶¶ 7-33.)

First, on July 10, 2007, Plaintiff requested intermittent FMLA leave to care for his mother, so-called "family-care" leave. (Id. ¶ 11.) After Defendant granted that request, Plaintiff took intermittent FMLA leave until January 2, 2008, when Defendant advised him that his FMLA leave had been exhausted. (Id. ¶ 12-15.) On January 9, 2008, Plaintiff met with and informed Defendant that, in his opinion, he had not exhausted his FMLA leave. (Id. ¶¶ 18-19.) Defendant disagreed and notified Plaintiff that if he did not report to work he would be fired. (Id. ¶ 20.) Faced with that ultimatum, Plaintiff made alternative arrangements for someone else to care for his mother and reported to work the next day, January 10, 2008. (Id. ¶¶ 21-22.)

The second event for which Plaintiff missed work occurred less than one week later. On January 15, 2008, Plaintiff requested FMLA leave because of an injury to his own knee, so-called "self care" leave. (Id. ¶¶ 23-24.) Defendant denied this second request, again notifying Plaintiff that, in its opinion, he did not have any FMLA leave remaining. (Id. ¶ 25.)

The third event began on February 16, 2008, when Plaintiff sustained an injury at work and was then out of work from February 20 through March 12, 2008. (Id. ¶¶ 26-27.) Although Plaintiff did not request FMLA leave for this third absence, on February 28, 2008, in the midst of that absence, Defendant again notified Plaintiff that his FMLA leave was exhausted. (Id. ¶¶ 28, 34.) Defendant also met with Plaintiff on March 7, 2008, to discuss his employment status and told him that if he did not report to work on March 12, 2008, he would be terminated. (Id. ¶¶ 29-32.)

On March 12, 2008, Plaintiff, again faced with the ultimatum of termination, reported to work. (Id. ¶¶ 33-34.) Defendant thereafter retroactively reduced Plaintiffs FMLA hours by 168, the import of which will be addressed below. (Id. ¶ 35.) For his part, Plaintiff claimed that, as of March 12, 2008, he actually had at least 92 hours of FMLA leave remaining. (Id. ¶ 36.)

Although Plaintiff's complaint raises two FMLA causes of action, neither makes any specific distinction between Plaintiffs "family-care" and "self-care" leave allegations. (Id. ¶¶ 37-45.) Rather, in Count 1, Plaintiff simply alleges that "Defendant interfered with, re[s]trained, or denied [him] the exercise or the attempt to exercise of his [FMLA] rights." (Id. ¶ 38.) In Count 2, Plaintiff simply alleges that "Defendant discriminated against [him] for opposing a practice made unlawful by [the FMLA]." (Id.) Plaintiff seeks money damages in both counts. (Id. ¶¶ 39, 45.)

III. DISCUSSION

This case converges at the intersection of the FMLA's family-care and self-care leave provisions and the states' immunity from suit under the Eleventh Amendment. Describing this as a pure self-care case, Defendant argues that Congress has not validly abrogated the Eleventh Amendment immunity of the states from such private damages actions. Plaintiff disagrees and argues as well that this action also involves family-care leave allegations. The court, for its part, agrees with Defendant that Plaintiff's self-care claims should be dismissed but has determined that Plaintiffs family-care claims should survive.

There is no dispute that Defendant is a state agency for Eleventh Amendment immunity analysis. Nor is there any dispute that the Eleventh Amendment prevents private individuals from suing nonconsenting states for damages in federal court. See Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 363, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001). To be sure, Congress can abrogate the states' Eleventh Amendment immunity, but only 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." Nevada Dep't. of Human Res. v. Hibbs, 538 U.S. 721, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003).

Here, the issue is not whether Congress has made its intention to abrogate unmistakably clear. It has. As Plaintiff observes the FMLA specifically enables employees to seeks damages "against any employer (including a public agency) in any Federal or State court of competent jurisdiction." 29 U.S.C. § 2617(a)(2). Congress has 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." 29 U.S.C. §§ 203(x), 2611(4)(A)(iii). Rather, the issue is whether, in enacting the FMLA, Congress acted pursuant to a valid exercise of its Fourteenth Amendment, section 5 power, more particularly, its section 5 power to address gender-based discrimination. Accordingly, the court turns to that question.

The FMLA entitles eligible employees to a certain amount of unpaid leave per year in four specified instances: (1) the birth of a child, (2) the adoption of a child or placement of a foster child, (3) the need to care for a parent, child or spouse with a serious health condition (the "family-care" leave provision), and (4) the inability to work due to the employee's own serious health condition (the "self-care" leave provision). 29 U.S.C. § 2612(a)(1)(A)-(D). In Laro v. New Hampshire, 259 F.3d 1 (1st Cir.2001), the First Circuit held that Congress did not validly abrogate the states' Eleventh Amendment immunity when it enacted the self-care leave provision of the FMLA contained in 29 U.S.C. § 2612(a)(1)(D).

Laro involved a suit by an employee of New Hampshire's Retirement System who requested and was granted FMLA leave following his heart bypass surgery, but who later claimed that the state had violated 29 U.S.C. § 2615 by terminating his employment before the expiration of the period of unpaid leave provided by the FMLA. Laro, 259 F.3d at 4. The First Circuit noted that the only issue before it concerned "the availability of private damages actions against states under the final provision [of the FMLA], 29 U.S.C. § 2612(a)(1)(D), which affords an employee the right to unpaid leave for inability to work due to his or her own serious health condition." Laro, 259 F.3d at 9. Following the analytic framework described in Kimel v. Florida Board of Regents, 528 U.S. 62, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000) and Garrett, 531 U.S. 356, 121 S.Ct. 955, the First Circuit determined that the self-care provision of the FMLA, 29 U.S.C. § 2612(a)(1)(D), did not "exhibit a sufficient congruence to the prevention of unconstitutional state discrimination to validly abrogate the states' Eleventh Amendment immunity." Laro, 259 F.3d at 16. In other words, the First Circuit found in the self-care provision of the FMLA "no direct connection to preventing unconstitutional gender discrimination by state employers." Id. Thus, the First Circuit joined "every circuit that has addressed the issue with regard to 29 U.S.C. § 2612(a)(1)(D)," in holding that "the [self-care] leave provision of FMLA does not validly abrogate the Eleventh Amendment immunity of the states as employers from private damages actions." Id. at 16-17 (citing Lizzi v. Alexander, 255 F.3d 128 (4th Cir.2001); Chittister v. Dep't of Cmty. & Econ. Dev., 226 F.3d 223 (3rd Cir.2000); Townsel v. Missouri, 233 F.3d 1094 (8th Cir.2000); Kazmier v. Widmann, 225 F.3d 519, 527-29 (5th Cir.2000); Sims v. Univ. of Cincinnati, 219 F.3d 559, 566 (6th Cir.2000); Hale v. Mann, 219 F.3d 61, 69 (2nd Cir.2000); and Garrett v. Univ. Ala. Bd. of Trustees, 193 F.3d 1214, 1219 (11th Cir.1999), rev'd on other grounds, 531 U.S. 356, 121 S.Ct. 955...