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Public agencies can not be obliged under the Family and Medical Leave Act to provide 12 weeks of leave to employees who need to attend to their own illnesses, the 2nd U.S. Circuit Court of Appeals has decided. While other benefits of the FMLA, which became law in 1993, must be provided by government employers — with the employee having a remedy in court if it is not — the refusal to grant leave for the employee’s own illness can not be the subject of a lawsuit, the three-judge panel concluded. That is because, unlike the bulk of benefits mandated by the FMLA, the own-illness leave does not connect with the remedial nature of the law, the court said in an opinion by Circuit Judge Roger J. Miner. In Hale v. Mann, 99-7326, the plaintiff was the former youth facility director of the New York Secure Center in Goshen, and was an employee of the state Office of Children and Family Services. Plaintiff Monroe Hale said he was discharged without regard to his right to 12 weeks’ leave to attend to his illness, described as “job-related stress.” Hale also said that he was demoted from his tenured position in retaliation for exercise of his First Amendment free speech rights. The FMLA requires employers to provide 12 weeks leave for child care or the illness of a family member. The provisions of the Family Medical Leave Act were made to apply to government agencies such as state Children and Youth Services, and the law includes language lifting such agencies’ constitutional immunity from suit. The Eleventh Amendment to the U.S. Constitution, which gives immunity from suit to governmental units, may be lifted by an act of Congress. The appeals court said that Congress intended to make the FMLA generally enforceable against public agencies and provided a legal remedy for employees to vindicate that right. Under the terms of the FMLA, governmental immunity was lifted because of a Congressional finding that the act was needed to ameliorate family and gender discrimination. That Congressional finding, reasoned Miner, does not support a lifting of governmental immunity for a violation of the mandate to provide leave for an employee’s personal illness. “In light of Congress’ failure to specifically find that women are disproportionately affected by ‘serious health conditions,’ this gender-neutral grant of leave [to sue the public agency] is overbroad,” Miner said. “There is no evidence that this conferment of federally-protected leave is tailored to remedy sex-based employment discrimination.” Judges Amalya L. Kearse and Jose A. Cabranes joined Miner in the unanimous decision. The court upheld New York Southern District Judge Charles L. Brieant III, who granted summary judgment to the state agency on the FMLA issue. However, the appellate panel sent the case back to Brieant for possible trial on the First Amendment claims. Miner said that Hale had produced enough evidence to create a genuine issue of material fact as to whether he was demoted because he criticized policies adopted by his superiors in the agency. Cabranes dissented from this portion of the ruling. Michael H. Sussman of Goshen, N.Y., argued the case for the plaintiff. Assistant New York Attorney General Marion R. Buchbinder handled the case for the state Office of Children and Family Services.

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