Iowa/Mass.: Mixed results on FMLA immunity

The Iowa Court of Appeals and Massachusetts's federal district court recently reached opposite conclusions on sovereign immunity under the self-care provision of the Family Medical Leave Act (FMLA).

The Iowa Court of Appeals recently became the first court to hold that the self-care provision of the FMLA validly abrogates state sovereign immunity. The court concluded from its legislative history that, like the Act’s family leave provisions, it was intended to remedy gender discrimination. Lee v. State, 2009 WL 398330 (Iowa.App. Feb. 19, 2009) (Publication decision pending). But Massachusetts’s federal district court has reached the opposite conclusion, saying it is bound by First Circuit precedent. Wilson v. Exec. Office of Health & Hum. Servs., --- F.Supp.2d ---, 2009 WL 886229 (D.Mass. Apr. 1, 2009).

 

          Virtually every federal court to address the question has held that Nevada Dep't of Human Res. v. Hibbs, 538 U.S. 721 (2003), recognizes a valid abrogation of sovereign immunity only as to FMLA’s family-care provision, 29 U.S.C. § 2612(a)(1) (C). These lower courts have generally reasoned that Hibbs was based on remedying gender discrimination, and that the Act’s self-care provision, § 2612(a)(1)(D), has no relation to remedying gender discrimination and is instead simply economic legislation. See, e.g., Nelson v. Univ. Texas at Dallas, 535 F.3d 318 (5th Cir. 2008) (citing Sixth, Seventh and Tenth Circuit cases; summary); McKlintic v. 36th Judicial Circuit Court, 508 F.3d 875, 877 (8th Cir. 2007); Nicholas v. Att'y Gen., 168 P.3d 809 (Utah 2007). (In what had been the only apparent exception, the Fourth Circuit permitted a damages claim under the self-care provision to go forward in Montgomery v. Maryland, 72 Fed.Appx. 17 (4th Cir. 2003). The decisions reported here declined to rely on Montgomery because it was unpublished and offered no analysis of the issue.)

 

Iowa state court finds valid abrogation

 

          Lee v. State involves a county clerk employee who was effectively terminated after giving notice of her treatment for a medical condition. The Iowa court noted that neither Hibbs nor the FMLA itself state that Congress’s intent to remedy gender discrimination was limited to the family-care provision.  On the contrary, Congress stated that it intended to “minimize the potential for [sex] discrimination…by ensuring generally that leave is available for eligible medical reasons.” 29 U.S.C. § 2601(b)(4). The court further noted the FMLA record was “replete with references” to ties between medical leave policies and sex discrimination, and that the Hibbs opinion makes mention of that history. 538 U.S. at 732. Specifically, the Iowa court quoted the Senate report’s discussion of the disparate impact of job loss due to illness on women in low-paid jobs. See S.Rep. No. 103-3, at 11-12. The court also pointed to similar to discussion in the history of precursor legislation to the FMLA. See S. Rep. No. 102-68, at 26; H.R.Rep.  No. 103-8(II), at 25. The record also makes several references to the gender discrimination based on pregnancy and childbirth. The court therefore said it was “clear” that the self-care provision was motivated by the same gender-discrimination rationale as the family-care provision.

 

          The Iowa court rejected the conclusions of the lower federal courts, saying most had not carefully examined the legislative history. It further concluded that the self-care provision is a congruent and proportional remedy to gender discrimination, because it is subject to the same limitations discussed and found sufficient in Hibbs with regard to the family-care provision. 538 U.S. at 739.

 

          Alternatively, the court concluded that the state had waived its immunity from suit by promulgated regulations that afford state employees FMLA leave. See Anthony v. State, 632 N.W.2d 897, 902 (Iowa 2001).

 

Massachusetts court bound by circuit precedent

 

      Wilson v. Executive Office involves a series of disputes over the course of a year over plaintiff’s leave requests, first to care for his mother and later due to his own knee injury. The court said that the Iowa decision “raise[s] some interesting points,” but that the arguments in that case concerning FMLA’s legislative history “remain undeveloped by Plaintiff.” Moreover, the court said it was bound by the contrary holding of Laro v. New Hampshire, 259 F.3d 1 (1st Cir. 2001). Laro acknowledge some of this legislative history, as well as the heightened standard of review for gender discrimination, but nevertheless rejected abrogation, stating that “[t]here is no showing… that establishes any nexus between gender-neutral medical leave for one's own health conditions and the prevention of discrimination on the basis of gender on the part of states as employers.” The court said that since the First Circuit has not been called on to reconsider Laro, it remains binding.

The court dismissed Wilson’s self-care claims, but it also concluded that the complaint appeared to state claims under both the self-care and family-care provisions. To wit, plaintiff alleged that, prior to his own injury, defendant improperly ordered him to return to work and find someone else to care for his mother. Accordingly, Wilson’s damages claims would not be dismissed insofar as they arose under the family-care provision.