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States and their agencies cannot be sued in federal court under the Family and Medical Leave Act because Congress did not validly “abrogate” the states’ 11th Amendment immunity rights when it passed the law, a federal appeals court has ruled. The decision by a unanimous three-judge panel of the 3rd U.S. Circuit Court of Appeals in Chittister v. Department of Community and Economic Development comes on the heels of a similar ruling last month in which the 3rd Circuit said states cannot be sued under the Americans with Disabilities Act. Both decisions rely heavily on the U.S. Supreme Court’s decision earlier this year in Kimel v. Florida Board of Regents that said states cannot be sued under the Age Discrimination in Employment Act. In Chittister, U.S. Circuit Judge Samuel A. Alito said Congress has the authority to abrogate 11th Amendment immunity pursuant to its power to enforce the 14th Amendment. But quoting from Kimel, Alito said that to invoke the power, Congress “must identify conduct transgressing the 14th Amendment’s substantive provisions, and must tailor its legislative scheme to remedying or preventing such conduct.” In the case of the FMLA, Alito said, Congress identified “the potential for employment discrimination on the basis of sex” in violation of the Equal Protection Clause. But Alito said the Supreme Court has held that in order for an exercise of Congress’s enforcement power under the 14th Amendment to be sustained, “there must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” Applying that rule of law to the FMLA, Alito said, “there must be ‘congruence and proportionality’ between ‘the potential for employment discrimination on the basis of sex’ and the FMLA’s provision of 12 weeks of leave to eligible employees.” Alito found that the test could not be met. In enacting the FMLA, he said, Congress found that it is “important … that fathers and mothers be able to participate in early childrearing and the care of family members who have serious health conditions” and that the “lack of employment policies to accommodate working parents can force individuals to choose between job security and parenting.” Legislators also found “inadequate job security” for those who take medical leave and that “the primary responsibility for family caretaking often falls on women” and has a greater effect on their work than it does on men. But Alito found that “notably absent is any finding concerning the existence, much less the prevalence, in public employment of personal sick leave practices that amounted to intentional gender discrimination in violation of the Equal Protection Clause.” Congress, he said, “did not find that public employers refused to permit as much sick leave as the FMLA mandates with the intent of disadvantaging employees of one gender.” Alito also found it was “doubtful that a practice of allowing less sick leave than the FMLA requires would even have a disparate impact on men and women.” But even if there were such findings or evidence, Alito said, “the FMLA provisions at issue here would not be congruent or proportional.” Unlike the Equal Protection Clause, he said, the FMLA “does much more than require nondiscriminatory sick leave practices; it creates a substantive entitlement to sick leave.” Such a requirement, he said, is “disproportionate to any unconstitutional conduct that conceivably could be targeted by the Act.” Quoting from the Supreme Court’s 1997 decision in City of Boerne v. Flores, Alito found that the FMLA is “so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior.” As a result, he said, the FMLA “cannot be said to be congruent or proportional to any identified constitutional harm, and it cannot be said to be tailored to preventing any such harm.” Alito, who was joined by U.S. Circuit Judge Theodore A. McKee and visiting Senior U.S. District Judge John P. Fullam, said the decision was in line with decisions from the 2nd and 11th circuits that also found Congress did not validly abrogate the states’ 11th Amendment immunity when it passed the FMLA. The plaintiff in the suit, David D. Chittister, was an employee of the Pennsylvania Department of Community and Economic Development. In 1997, Chittister requested and was granted sick leave but was fired 10 weeks later when the leave was revoked. Chittister sued under the FMLA, claiming he was illegally fired while he was on approved, paid sick leave. He also brought a civil rights claim, alleging that his employers had retaliated against him for the exercise of his First Amendment rights. U.S. District Judge Sylvia H. Rambo dismissed the retaliation claim but held a jury trial on the FMLA claim. However, after a jury handed up a verdict in Chittister’s favor, Rambo overturned the verdict and held that the FMLA claim was barred by the 11th Amendment. On appeal, Chittister argued that Pennsylvania consented to be sued under the FMLA because an administrative policy “instructs the Commonwealth to post the notices required by the FMLA and its implementing regulations and specifically instructs the employees of their right to file suit to enforce its provisions.” But Alito said “waiver of 11th Amendment immunity is found only where the state ‘voluntarily invokes’ federal jurisdiction or where the state ‘makes a clear declaration that it intends to submit itself’ to federal jurisdiction.” In Pennsylvania, Alito said, “only a command of the General Assembly is sufficient under Pennsylvania law to waive the Commonwealth’s immunity.” An administrative policy, he said, “cannot amount to a ‘clear declaration’ that Pennsylvania intends to submit itself to federal jurisdiction.” Chittister also argued that the state gave “constructive consent” to his suit by defending it on the merits and raising the issue of its immunity for the first time on appeal. But Alito said “it is settled, however, that 11th Amendment immunity may be raised for the first time on appeal even if the state defended the merits of the suit in the district court.”

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