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Filed August 30, 2000
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 00-3140
DAVID D. CHITTISTER,
Appellant
v.
DEPARTMENT OF COMMUNITY AND ECONOMIC
DEVELOPMENT; DAVID BLACK; LARRY SEGAL
ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(Dist. Court No. 97-cv-01946)
District Court Judge: Sylvia H. Rambo
Argued: June 30, 2000
Before: ALITO and McKEE, Circuit Judges, and
FULLAM, Senior District Judge.*
(Filed: August 30, 2000)
Andrew J. Ostrowski (argued)
2080 Linglestown Road, Ste. 201
Harrisburg, PA 17110
Counsel for Appellants
_________________________________________________________________
* The Honorable John P. Fullam, United States District Court for the
Eastern District of Pennsylvania, sitting by designation.
D. Michael Fisher, Attorney General
J. Bart DeLone, Deputy Attorney
General
Calvin R. Koons, Senior Deputy
Attorney General
John G. Knorr, III, Chief Deputy
Attorney General (argued)
Office of Attorney General
Appellate Litigation Section
15th Fl., Strawberry Square
Harrisburg, PA 17120
Counsel for Appellees
OPINION OF THE COURT
ALITO, Circuit Judge:
In this case, we must decide whether Congress validly
abrogated the states' Eleventh Amendment immunity when
it enacted provisions of the Family and Medical Leave Act of
1993 ("FMLA"), 29 U.S.C. SS 2601-54, that require a broad
class of employers, including states, to provide their
employees with 12 weeks of leave "[b]ecause of a serious
health condition that makes the employee unable to
perform the functions of the position of such employee" and
that permit employees to sue in federal court for violations
of the Act. We agree with the District Court in this case and
with the other Courts of Appeals that have considered this
question that Congress did not validly abrogate the states'
Eleventh Amendment immunity when it enacted these
provisions. See Hale v. Mann, No. 99-7326, 2000 WL
675209, at *7 (2d Cir. May 25, 2000); Garrett v. University
of Alabama at Birmingham Board of Trustees, 193 F.3d
1214, 1219 (11th Cir. 1999), cert. granted on different
issue, 120 S. Ct. 1669 (2000). We therefore affirm the
decision of the District Court.
I.
On February 14, 1997, David D. Chittister, an employee
of the Pennsylvania Department of Community and
2
Economic Development, requested sick leave. He was
granted leave through May 2, 1997. For reasons not
relevant to this appeal, approximately ten weeks later, on
April 21, 1997, Chittister's leave was revoked, and he was
fired.
Chittister then filed this action in federal district court
against the Department and two state officials. Chittister
asserted a claim under the FMLA, alleging that the
defendants had improperly denied him leave and hadfired
him while he was on approved, paid sick leave. He also
asserted a claim under 42 U.S.C. S 1983 on the ground that
the defendants had retaliated against him for the exercise
of his First Amendment rights. The District Court granted
summary judgment for the defendants on Chittister's
retaliation claim, and Chittister took a separate appeal from
that order.1 A jury trial on the FMLA claim resulted in a
verdict in Chittister's favor, but the District Court granted
judgment as a matter of law in favor of the Department,
holding that Chittister's FMLA claim against the
Department was barred by the Eleventh Amendment.
Chittister then took this appeal.
II.
Under the Eleventh Amendment, a plaintiff other than
the United States or a state may not sue a state in federal
court without the latter state's consent unless Congress
abrogates the state's Eleventh Amendment immunity
pursuant to a constitutional provision granting Congress
that power. See Kimel v. Florida Board of Regents, 120 S.
Ct. 631, 643-44 (2000); Seminole Tribe of Florida v. Florida,
517 U.S. 44, 59 (1996). The Fourteenth Amendment confers
such power, Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976),
but Article I of the Constitution does not. See Seminole
Tribe, 517 U.S. at 63-73.
The FMLA requires an employer to provide "12
workweeks of leave"
(A) Because of the birth of a son or daughter of the
_________________________________________________________________
1. We resolve that appeal, No. 99-3425, in a separate opinion.
3
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.
29 U.S.C. S 2612(a)(1) (emphasis added). The Act 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 Act. 29 U.S.C. S 2615(a)(1). The Act also
grants state employees, among others, a private right of
action against their employers for violations of the Act. See
29 U.S.C. S 2617(a)(2)(A). As noted, Chittister sued his
employer, the Pennsylvania Department of Community and
Economic Development, alleging that the Department's
"termination of [his] employment without granting [him] the
leave to which he is entitled [was] a violation of the FMLA."
Complaint at 5.
It is not disputed that the Department is an arm of the
Commonwealth and is within the protection of the Eleventh
Amendment. Moreover, although Chittister argues
otherwise, it is clear that Pennsylvania has not consented
to suit under the FMLA. The Pennsylvania Constitution
provides that the Commonwealth may be sued only"in
such manner, in such courts and in such cases as the
Legislature may by law direct." Pa. Const. art. I, S 11
(emphasis added). The legislature has directed that the
Commonwealth retains its sovereign immunity. See 1 Pa.
Cons. Stat. Ann. S 2310 (West Supp. 2000) ("[I]t is hereby
declared to be the intent of the General Assembly that the
Commonwealth . . . shall continue to enjoy sovereign
immunity and official immunity and remain immune from
suit except as the General Assembly shall specifically waive
the immunity."). It has waived immunity only for certain
specified tort claims in suits for damages in state court. See
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42 Pa. Cons. Stat. Ann. S 8522. The Supreme Court of
Pennsylvania has held that the Commonwealth's immunity
is otherwise intact. See Dean v. Commonwealth , 751 A.2d
1130, 1132 (Pa. 2000). The General Assembly has further
provided that "[n]othing contained in this subchapter
[including S 8522] shall be construed to waive the immunity
of the Commonwealth from suit in Federal courts
guaranteed by the Eleventh Amendment of the Constitution
of the United States." S 8521(b). Thus, we have held that
Pennsylvania has not consented to suit in federal court. See
Wheeling & Lake Erie Ry. v. Public Util. Comm'n, 141 F.3d
88, 91 (3d Cir. 1998); Laskaris v. Thornburgh , 661 F.2d 23,
25 (3d Cir. 1981).
Chittister asserts that Pennsylvania consented to suit
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." Appellant Br. at 29. However, waiver of
Eleventh 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. College Sav. Bank v. Florida
Prepaid Postsecondary Educ. Expense Bd., 119 S. Ct. 2219,
2226 (1999) (quotation marks omitted). Because only a
command of the General Assembly is sufficient under
Pennsylvania law to waive the Commonwealth's immunity,
an administrative policy cannot amount to a "clear
declaration" that Pennsylvania intends to submit itself to
federal jurisdiction.
Chittister also asserts that Pennsylvania gave
constructive consent to his suit by defending it on the
merits and raising the issue of its immunity for thefirst
time on appeal. It is settled, however, that Eleventh
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. See Edelman v. Jordan, 415 U.S. 651,
677-78 (1974); Wheeling & Lake Erie Ry., 141 F.3d at 91;
College Sav. Bank v. Florida Prepaid Postsecondary Educ.
Expense Bd., 131 F.3d 353, 365 (3d Cir. 1997) ("Because
the immunity issue sufficiently partakes of the nature of a
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jurisdictional bar, it is an issue that may be raised any time
during the pendency of the case. Merely because a state
appears and offers defenses on the merits of the case, it
does not automatically waive Eleventh Amendment
immunity.") (citations and quotation marks omitted). Thus,
Chittister's contention that the Commonwealth consented
to suit under the FMLA is without merit.
III.
Because the Commonwealth has not consented to suit, it
may be sued in federal court only if Congress validly
abrogated its Eleventh Amendment immunity. In order to
abrogate Eleventh Amendment immunity, Congress must
make its intention to do so "unmistakably clear in the
language of the statute." Kimel, 120 S. Ct. at 640. The
FMLA provides that "[a]ny employer who violates section
2615 of this title shall be liable to any eligible employee
affected for damages . . . ." 29 U.S.C. S 2617(a)(1)(A). The
Act then grants a private right of action to eligible
employees: "An action to recover damages or equitable relief
. . . may be maintained against any employer (including a
public agency) . . . by any one or more employees for and
in behalf of the employees." See 29 U.S.C. S 2617(a)(2)(A)
(emphasis added).2
The language in the Age Discrimination in Employment
Act that provides for a private right of action is almost
identical to the enforcement language in the FMLA. See
29 U.S.C. S 216 (b) ("An action to recover the liability [under
the ADEA] prescribed in either of the preceding sentences
may be maintained against any employer (including a public
agency) . . . by any one or more employees for and in behalf
of himself or themselves . . . .") (emphasis added). In Kimel,
the Court held that this language in the ADEA represented
an "unmistakably clear" attempt by Congress to abrogate
the states' Eleventh Amendment immunity. Kimel , 120 S.
Ct. at 640. We therefore hold that the FMLA attempts to
abrogate the states' Eleventh Amendment immunity.
_________________________________________________________________
2. The term "public agency" includes "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.S 203(x).
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IV.
As noted, Congress has the authority to abrogate
Eleventh Amendment immunity pursuant to its power to
enforce the Fourteenth Amendment. See Kimel, 120 S. Ct.
at 643-44. In order to invoke this, Congress "must identify
conduct transgressing the Fourteenth Amendment's
substantive provisions, and must tailor its legislative
scheme to remedying or preventing such conduct." Florida
Prepaid Postsecondary Educ. Expense Bd. v. College Sav.
Bank, 119 S. Ct. 2199, 2207 (1999). Here, Congress has
identified the conduct transgressing the Fourteenth
Amendment as "the potential for employment
discrimination on the basis of sex" in violation of the Equal
Protection Clause.3 29 U.S.C.S 2601(b)(4). In City of Boerne
v. Flores, 117 S. Ct. 2157 (1997), the Court held that, in
order for an exercise of Congress's enforcement power
under the Fourteenth Amendment to be sustained,"[t]here
must be a congruence and proportionality between the
injury to be prevented or remedied and the means adopted
to that end." See id. at 2164. In the present case,
consequently, 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.
It is apparent that this standard cannot be met here. In
enacting the FMLA, Congress found, among other things,
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," 29 U.S.C.
S 2601(a)(2), that the "lack of employment policies to
_________________________________________________________________
3. Chittister asserts that the abrogation of Pennsylvania's immunity is a
valid exercise of Congress's power to enforce the guarantees of
substantive due process under the Fourteenth Amendment. In Florida
Prepaid, the Court refused to entertain an alternative basis for the
legislation in question there because "Congress was so explicit about
invoking its authority under Article I and its authority . . . under the
Fourteenth Amendment." Florida Prepaid Postsecondary Educ. Expense
Bd., 119 S. Ct. at 2208 n.7. In enacting the FMLA, Congress explicitly
relied on the Equal Protection Clause of the Fourteenth Amendment. See
29 U.S.C. S 2601(b)(4). We, therefore, decline to consider the Due Process
Clause as an alternative basis for the FMLA.
7
accommodate working parents can force individuals to
choose between job security and parenting," S 2601(a)(3),
that "there is inadequate job security" for persons who
might take medical leave, S 2601(a)(4), 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, S 2601(a)(5). Notably absent is anyfinding
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. For example, Congress 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. (Indeed, it is
doubtful that a practice of allowing less sick leave than the
FMLA requires would even have a disparate impact on men
and women.). Nor are we aware of any substantial evidence
of such violations in the legislative record.
Moreover, even if there were relevant findings or evidence,
the FMLA provisions at issue here would not be congruent
or proportional. Unlike the Equal Protection Clause, which
the FMLA is said to enforce, the FMLA does much more
than require nondiscriminatory sick leave practices; it
creates a substantive entitlement to sick leave. This
requirement is "disproportionate to any unconstitutional
conduct that conceivably could be targeted by the Act."
Kimel, 120 S. Ct. at 645. It 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." City of Boerne , 117 S. Ct. at
2170. For these reasons, the legislative scheme 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. Accordingly, we hold that the
FMLA provisions at issue here do not represent a valid
exercise of Congress's power to enforce the Fourteenth
Amendment and that the FMLA does not abrogate Eleventh
Amendment immunity. Cf. Lavia v. Commonwealth of
Pennsylvania, Department of Corrections, No. 99-3863 (3d
Cir., filed Aug. 8, 2000) (Title I of ADA).
8
V.
For the reasons stated above, the judgment of the District
Court is affirmed.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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