IN THE SUPREME COURT OF IOWA 

No. 07–1879 

Filed May 25, 2012 

TINA LEE,

 Appellee, 

vs. 

STATE OF IOWA, POLK COUNTY CLERK OF COURT,

 Appellant. 

 On review from the Iowa Court of Appeals. 

 Appeal from the Iowa District Court for Polk County, James M. 

Richardson, Judge. 

 Further review of a decision by the court of appeals rejecting a 

claim of sovereign immunity and affirming a district court judgment on a 

jury verdict based on a claim under the Federal Family and Medical 

Leave Act by an employee against the State. DECISION OF COURT OF 

APPEALS VACATED; JUDGMENT OF DISTRICT COURT REVERSED; 

CASE REMANDED FOR FURTHER PROCEEDINGS. 

 Thomas J. Miller, Attorney General, Jeffrey S. Thompson, Deputy 

Attorney General, and Grant K. Dugdale, Assistant Attorney General, for 

appellant. 

 Paige E. Fiedler and Brooke C. Timmer of Fiedler & Timmer, 

P.L.L.C., Urbandale, for appellee. 
 2 

CADY, Chief Justice. 

 In this employment case, we must primarily decide whether the 

State of Iowa is immune from claims under the self-care provision of the 

Family and Medical Leave Act (FMLA) in state court. The district court 

denied the State’s posttrial motions for a judgment notwithstanding the 

verdict or a new trial asserting Eleventh Amendment sovereign immunity 

after a jury awarded damages to a state employee based on a claim for 

violating the Act. The Iowa Court of Appeals affirmed. On further review, 

we vacate the decision of the court of appeals, reverse the judgment of 

the district court, and remand for further proceedings. 

I. Background Facts and Prior Proceedings. 

 Tina Lee worked in the office of the Polk County Clerk of Court as a 

state employee. She began working for the clerk’s office in 1981 as a 

full-time employee in the traffic division. Lee received positive yearly 

performance evaluations throughout much of her employment and was 

promoted numerous times. At the time of her termination, she held the 

position of lead worker in the records department. 

 The employee policy handbook distributed by the office of the state 

court administrator contained a section governing the various forms of 

leave available to employees, including a section on family and medical 

leave under the FMLA. The policy read in part: 

Employees who have worked at least 12 months and at least 

1,250 hours during the previous 12 months may request up 

to 12 weeks of job protected leave in a fiscal year, pursuant 

to provisions of the federal Family and Medical Leave Act 

(FMLA) of 1993. 

(Emphasis added.) 

 The provisions also required employees approved for FMLA leave 

“due to the employee’s own serious health condition (including childbirth 
 3 

and recovery) . . . to exhaust all paid sick leave, vacation, and comp time 

before unpaid leave” would be granted. Throughout the section of the 

handbook entitled “Family and Medical Leave Act (FMLA),” the leave was 

described as “FMLA leave,” and the provisions repeatedly identified the 

FMLA as the source of the leave. The FMLA leave provisions were in 

place at all relevant times to this case. 

 In 1997, Lee was diagnosed with anxiety disorder.1 She 

periodically took time away from work when her anxiety disorder would 

lead to bouts of depression. In the fall of 2004, Lee requested FMLA 

leave to cope with stress-induced anxiety brought about by family 

turmoil. She submitted a completed FMLA request form on October 20, 

2004, after visiting with her treating physician. The form included her 

physician’s signature indicating Lee was experiencing a serious health 

condition that was expected to last until November. Lee believed this 

form enabled her to take time off work during the next month when she 

felt it was necessary until she recovered. As a result, she left work 

throughout the remainder of the month when she was unable to work 

due to her medical condition. Lee previously used FMLA leave while 

working at the clerk’s office to recover from neck surgery, care for her 

daughter, and for surgery on both of her feet. 

 On November 3, 2004, Lee returned to work after having been gone 

for several days. Following a meeting with her supervisor, Lee was 

demoted for failing to follow absentee policies by calling in to work each 

day she was absent. She was suspended for three days and asked to 

surrender her key to the office. On November 8, Lee called her 

supervisor because she was again unable to come to work. The following 

 1The parties have stipulated that Lee suffers from a serious health condition. 
 4 

day, Lee did not report to work and did not call. On November 10, Lee’s 

supervisor sent her a letter terminating her employment for job 

abandonment. 

 Lee filed a petition against the State of Iowa in the Polk County 

District Court under 29 U.S.C. § 2612(a)(1)(D) (2000), the self-care 

provision of the FMLA. In its answer, the State asserted the affirmative 

defense of sovereign immunity under the Eleventh Amendment of the 

United States Constitution and filed a motion for summary judgment on 

the same grounds. In addition to claiming its constitutionally based 

immunity was not abrogated by Congress in enacting the self-care 

provision of the FMLA, the State asserted summary judgment was proper 

because it did not otherwise expressly waive its immunity and did not 

impliedly waive its immunity by placing the FMLA provisions in its 

handbook. Relying on the United States Supreme Court decision in 

Nevada Department of Human Resources v. Hibbs, 538 U.S. 721, 726, 

123 S. Ct. 1972, 1976, 155 L. Ed. 2d 953, 962 (2003), and the overall 

purpose of the FMLA, the district court found Congress abrogated the 

State’s sovereign immunity in state court by enacting the self-care leave 

provisions. Consequently, the district court did not address the issue of 

express or implied waiver. 

 The case was tried and submitted to a jury on two legal theories. 

Lee claimed wrongful termination and retaliatory discharge for exercising 

her rights under the FMLA. The jury ultimately returned a verdict in 

favor of Lee for $165,122. 

 The State filed a motion requesting the court either enter a 

judgment notwithstanding the verdict or grant a new trial. Lee also filed 

several posttrial motions, including a motion for reinstatement of her 
 5 

employment and other relief in the form of liquidated damages, front pay, 

and attorney fees. 

 In the motion for judgment notwithstanding the verdict, the State 

reiterated its position that Lee’s claims were barred by the State’s 

constitutionally based sovereign immunity. It also argued that it neither 

expressly nor constructively waived its immunity by placing the FMLA 

provisions in its employee handbook and notices around the workplace. 

Lee asserted the State constructively waived its immunity by failing to 

inform its employees that it was retaining its immunity. Lee also argued 

the State waived its immunity through its conduct in implementing the 

FMLA provisions with knowledge that they were enforceable. Lee argued 

that her FMLA rights would be lost without a right to sue for money 

damages. 

The district court denied the motion for judgment notwithstanding 

the verdict. It again held Congress abrogated the State’s immunity. 

Additionally, it found the State constructively waived its immunity by 

placing the FMLA provisions in the handbook and posting notice of the 

right to take FMLA leave. It stated: 

The FMLA is explained in their personnel policies handbook 

and posted in the Clerk of Court’s office. Employees are 

aware that they have the right under the FMLA to take leave 

for their own illnesses. Nowhere did Defendants indicate 

that one specific type of leave, self-care leave, is not 

permitted or that employees would have no recourse if they 

were terminated or retaliated against for taking self-care 

leave. Furthermore, the state employees testified they knew 

it was illegal to terminate or retaliate against someone for 

using FMLA leave. Thus, the State has waived any immunity 

through its conduct. 

The district court entered judgment against the State for the back-pay 

damages as determined by the jury, in addition to reinstatement of 
 6 

employment and benefits, front pay, liquidated damages, attorney fees, 

and educational training for supervisors. 

 The State appealed. In a separate proceeding, we granted the 

State’s motion to stay the judgment pending this appeal. We transferred 

the case to the court of appeals. The court of appeals determined that 

Congress validly exercised its power in Section Five of the Fourteenth 

Amendment to abrogate the State’s immunity to suit under the self-care 

provision of the FMLA. It further found the State impliedly waived its 

immunity to suit through the actions of the executive branch in allowing 

State employees FMLA leave. 

 The State requested further review, which we granted. We 

subsequently held the case in abeyance pending a decision by the 

Supreme Court of the United States in Coleman v. Court of Appeals of 

Maryland, ___ U.S. ___, 132 S. Ct. 1327, ___ L. Ed. 2d ___ (2012). 

II. Standard of Review. 

 We review a district court’s decision to deny a motion for judgment 

notwithstanding the verdict for errors at law. Van Sickle Constr. Co. v. 

Wachovia Commercial Mortg., Inc., 783 N.W.2d 684, 687 (Iowa 2010). In 

reviewing the court’s decision, we must determine whether sufficient 

evidence existed to justify submitting the case to the jury at the 

conclusion of the trial. Id. We view the evidence in the light most 

favorable to the nonmoving party. Id. 

 III. Discussion. 

 The Family and Medical Leave Act was enacted by Congress in 

1993. Family and Medical Leave Act of 1993, Pub. L. No. 103–3, 107 

Stat. 6 (1993) (codified at 29 U.S.C. ch. 28). It entitles eligible employees 

to take unpaid leave from their jobs for a number of qualifying reasons 

for a period of up to twelve work weeks each year with guaranteed job 
 7 

protection. 29 U.S.C.A. § 2612(a)(1) (West, Westlaw through P.L. 112–

104 (excluding P.L. 112–96 and 112–102)).2 The first three reasons that 

permit leave are typically collectively referred to as the “family-care 

provisions.” They authorize a worker to take leave to care for family 

members during the birth and care of a child, adoption of or foster care 

of a child, or care of a spouse, child, or parent who has a “serious health 

condition.” The fourth reason is referred to as the “self-care provision.” 

It allows an employee to take leave due to the employee’s own “serious 

health condition” that makes the employee unable to perform the 

functions of his or her job. 

 The Act also creates a private right of action for employees to sue 

employers in court for violating the law. Id. § 2617(a)(2). Both equitable 

relief and money damages are available against employers who interfere 

with the exercise of the rights of employees. Id. Moreover, Congress 

expressly authorized employees to bring suit against any employer, 

including a state or public agency, in state or federal court. Id. 

 2The qualifying reasons include: 

(A) Because of the birth of a son or daughter of the 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. 

(E) Because of any qualifying exigency (as the Secretary shall, by 

regulation, determine) arising out of the fact that the spouse, or a son, 

daughter, or parent of the employee is on covered active duty (or has 

been notified of an impending call or order to covered active duty) in the 

Armed Forces. 

29 U.S.C.A. § 2612(a)(1). 
 8 

 The portion of the Act that authorizes employees to bring suit 

against a state gives rise to the issues presented in this case. The 

Eleventh Amendment to the United States Constitution, in part, protects 

nonconsenting states from private suit in their own courts over federal 

law claims. This principle is a component of the broader doctrine of 

sovereign immunity. Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 

356, 363, 121 S. Ct. 955, 962, 148 L. Ed. 2d 866, 877 (2001). Yet, such 

immunity can be waived by consent of the state or may be abrogated by 

a valid act of Congress. Id. Both doctrines are raised in this case to 

support the claim brought by Lee against the State. 

 The parties dispute whether the State’s waiver or consent to being 

sued under the FMLA can be implied from the judicial branch policies 

that allow FMLA leave and whether Congress properly abrogated the 

State’s immunity. The State argues it is immune from private suit in 

state court unless it expressly consents. Lee acknowledges the State’s 

general immunity, but asserts it waived its immunity by its conduct in 

this case. 

 The question of sovereign immunity involves the jurisdiction of the 

court to resolve disputes between private citizens and their state. See

Caleb Nelson, Sovereign Immunity as a Doctrine of Personal Jurisdiction, 

115 Harv. L. Rev. 1559, 1609 (2002) (recognizing the United States 

Supreme Court’s sovereign immunity jurisprudence is composed of a 

hybrid of personal and subject matter jurisdiction principles). If the 

State is cloaked with immunity from suit in state court from claims 

under the self-care provision, injured employees are precluded from 

suing for monetary relief. See Coleman, ___ U.S. at ___, 132 S. Ct. at 

1350, ___ L. Ed. 2d at ___ (Ginsburg, J., dissenting). 
 9 

 A. Sovereign Immunity. 

 1. History and origin. At the outset, we note the current state of 

the principle of sovereign immunity is complex and overall controversial. 

See Jesse H. Choper & John C. Yoo, Who’s Afraid of the Eleventh 

Amendment? The Limited Impact of the Court’s Sovereign Immunity 

Rulings, 106 Colum. L. Rev. 213, 214 (2006) (noting “[t]he Court’s 

Eleventh Amendment jurisprudence has come in for heavy scholarly 

criticism”). The general notion of sovereign immunity originated from the 

sixteenth-century English maxim that “the king can do no wrong.” Note, 

Separation of Powers and the Discretionary Function Exception: Political 

Question in Tort Litigation Against the Government, 56 Iowa L. Rev. 930, 

933 (1971). In the absence of a monarchy, the principle of governmental 

immunity was adopted by American courts using a different rationale, 

“[T]hat there could be no legal right against the sovereign authority that 

makes the law on which the right depends.” Id. 

 Early cases applying sovereign immunity in our country were 

generally in tort. See State v. Sharp, 189 P. 631, 632 (Ariz. 1920) 

(dismissing claim against state of Arizona for injuries sustained by state 

employee doing construction), overruled by Stone v. Ariz. Highway 

Comm’n, 381 P.2d 107, 109, 112 (Ariz. 1963); Mower v. Inhabitants of 

Leicester, 9 Mass. 247, 250 (1812) (dismissing claim of private citizen 

against city for injuries on city bridge). Iowa courts recognized and 

applied the rule of immunity as early as 1855. Chance v. Temple, 1 Iowa 

179, 201 (1855). The doctrine departed from its absolute terms in 1973, 

when we determined sovereign immunity may be impliedly waived by the 

State in certain cases. Kersten Co. v. Dep’t of Soc. Servs., 207 N.W.2d 

117, 119 (Iowa 1973). We recognized immunity in our state courts was 

“judicially created,” and as a result, the rule could be “judicially 
 10 

renounce[ed].” Id. at 118. We subsequently affirmed the principle that 

“consent to suit or waiver of sovereign immunity need not always be 

restricted to legislative enactment.” State v. Dvorak, 261 N.W.2d 486, 

489 (Iowa 1978). In both instances, the rule of immunity was waived 

because the State had voluntarily created legal relationships with private 

citizens that subjected it to liability. Id. (concluding, since the State 

voluntarily became a landowner, it must accept the obligations of any 

other landowner); Kersten, 207 N.W.2d at 120 (“[T]he State, by entering 

into a contract, agrees to be answerable for its breach and waives its 

immunity from suit to that extent.”). 

 Iowa was not the only state to advance the notion of government 

liability for common law claims in state courts. See Backus v. State, 203 

P.3d 499, 502 (Ariz. 2009) (recognizing the legislature’s intent to enact a 

presumption against general governmental immunity); see also Hargrove 

v. Town of Cocoa Beach, 96 So. 2d 130, 133 (Fla. 1957) (holding 

municipality could be liable for negligent acts of its police officers); Pierce 

v. Yakima Valley Mem’l Hosp. Ass’n, 260 P. 2d 765, 774 (Wash. 1953). 

Yet, until the United States Supreme Court’s decision in Alden v. Maine, 

527 U.S. 706, 119 S. Ct. 2240, 144 L. Ed. 2d 636 (1999), the issue of 

whether a state could be sued without its consent in its own courts for 

the enforcement of federal rights was not broadly discussed. Roger C. 

Hartley, Alden Trilogy: Praise and Protest, 23 Harv. J.L. & Pub. Pol’y 323, 

337 (2000) [hereinafter Hartley]. In Alden, the Court recognized states 

obtained their immunity from suit under federal statutes from the 

structure of the Federal Constitution. Alden, 527 U.S. at 749–50, 119 

S. Ct. at 2264, 144 L. Ed. 2d at 675. It reasoned the rule of immunity 

was built into the Constitution to prevent “ ‘the indignity of subjecting a 

State to the coercive process of judicial tribunals at the instance of 
 11 

private parties’ . . . regardless of the forum.” Id. at 749, 119 S. Ct. at 

2264, 144 L. Ed. 2d at 675 (quoting In re Ayers, 123 U.S. 443, 505, 8 

S. Ct. 164, 183, 31 L. Ed. 216, 229 (1887)). The Court’s interpretation 

cited historical evidence to support its focus on the importance of “state 

autonomy, fiscal predictability, and political accountability” and its 

corresponding disapproval of “individuals’ ability to influence the course 

of government through litigation.” Hartley, 23 Harv. J.L. & Pub. Pol’y at 

350. On the same day, the Court rejected the principle of constructive 

waiver of sovereign immunity in federal courts as unconstitutional. Coll. 

Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 

666, 682, 119 S. Ct. 2219, 2229, 144 L. Ed. 2d 605, 620 (1999). This 

backdrop frames the substantive issues presented on appeal. 

 2. Preservation of error. Before addressing the substantive issues, 

we first consider the argument by Lee that the State failed to preserve 

error because it did not allege Tenth Amendment sovereign immunity in 

district court. Instead, the State alleged only Eleventh Amendment 

sovereign immunity, which it asserts applies equally in state court and 

federal court. Even though the district court recognized the State’s 

argument as an assertion of immunity, Lee argues it was not properly 

raised, and as a result, it is not preserved for our review. 

 In addressing the source of states’ sovereign immunity to suit 

under federal statutes in state court, the United States Supreme Court 

has said: 

We have . . . sometimes referred to the States’ immunity 

from suit as “Eleventh Amendment immunity.” The phrase 

is convenient shorthand but something of a misnomer, for 

the sovereign immunity of the States neither derives from, 

nor is limited by, the terms of the Eleventh Amendment. 

Rather, as the Constitution’s structure, its history, and the 

authoritative interpretations by this Court make clear, the 

States’ immunity from suit is a fundamental aspect of the 
 12 

sovereignty which the States enjoyed before the ratification 

of the Constitution, and which they retain today . . . except 

as altered by the plan of the Convention or certain 

constitutional Amendments. 

Alden, 527 U.S. at 713, 119 S. Ct. at 2246–47, 144 L. Ed. 2d at 652. In 

Alden, suit was commenced against the State of Maine in its own state 

court under the Federal Fair Labor Standards Act. Id. at 711–12, 119 

S. Ct. at 2246, 144 L. Ed. 2d at 651–52. The State of Maine declared it 

was immune from suit under the Eleventh Amendment. Id. The United 

States Supreme Court found the general principle of sovereign immunity 

applied in state courts as reflected in the Eleventh Amendment. Id. at 

733, 119 S. Ct. at 2256, 144 L. Ed. 2d at 665. 

 In this case, the argument by the State identifies the Eleventh 

Amendment as the source of its defense. The substance of the State’s 

argument is generally that it is immune from claims against it under the 

self-care provision of the FMLA in state court. This argument is identical 

to the argument made by the State of Maine in Alden, in which the 

United States Supreme Court decided the Eleventh Amendment reflected 

a broad constitutional principle of sovereignty that should apply both in 

state and federal courts. Id. 

 We recognize the fundamental doctrine of appellate review that 

issues must be raised in the district court before we may review them on 

appeal. Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). Yet, the 

underlying purpose of our error preservation rule provides guidance to 

us in determining whether an issue has been raised and decided prior to 

appeal. State v. Mann, 602 N.W.2d 785, 790 (Iowa 1999). In particular, 

“ ‘the requirement of error preservation gives opposing counsel notice 

and an opportunity to be heard on the issue and a chance to take proper 

corrective measures or pursue alternatives in the event of an adverse 
 13 

ruling.’ ” Id. (quoting State v. Tobin, 333 N.W.2d 842, 844 (Iowa 1983)). 

We will not exalt form over substance when the objectives of our error 

preservation rules have been met. Id. at 791. 

 We find the State preserved its sovereign immunity argument. The 

State generally argued it is immune from suit in its own court for claims 

under the FMLA. Lee disputed this argument by asserting implied 

waiver of immunity and congressional abrogation. The district court 

considered both arguments in its ruling and found the State was 

generally immune, but that its immunity had been abrogated by 

Congress under the self-care provision of the FMLA. Nothing in the 

proceedings would have been altered had the State argued the source of 

its immunity differently. Because we find the objectives of the error 

preservation rules are met, we proceed with merits of the appeal. We 

first consider whether or not Congress abrogated sovereign immunity of 

states when it enacted the self-care provision of the FMLA. 

B. Congressional Abrogation of Immunity. The district court 

denied the State’s claim of immunity based on its finding that Congress 

abrogated the sovereign immunity of states when it enacted the self-care 

provision of the FMLA and entered judgment against the State based on 

the jury verdict. The State argues the judgment must be reversed 

because Congress did not act pursuant to a proper grant of power under 

the Federal Constitution to abrogate the State’s immunity under the 

FMLA self-care provision. 

The Supreme Court of the United States recently held that suits 

against states under the self-care provision of the FMLA are barred by 

sovereign immunity because Congress failed to validly abrogate the 

states’ immunity from suit. Coleman, ___ U.S. at ___, 132 S. Ct. at 1332–

33, ___ L. Ed. 2d at ___. The Court found there was insufficient evidence 
 14 

to show Congress enacted the self-care provision of the FMLA to enforce 

the constitutional guarantees of equal protection by remedying or 

preventing sex discrimination or sex stereotyping. Id. at ___, 132 S. Ct. 

at 1335, ___ L. Ed. 2d at ___. Consequently, Congress has not abrogated 

Iowa’s immunity from suit under the self-care provision of the FMLA, and 

we turn to consider whether the State has waived that defense. 

B. Consent or Waiver of Immunity. The State argues the district 

court erred by finding it constructively waived immunity under the FMLA 

self-care provision by informing its employees of the availability of FMLA 

leave. Lee responds by further asserting the State expressly waived suit 

under the self-care provision of the FMLA by enacting Iowa Code chapter 

97B governing the Iowa Public Employees’ Retirement System. We 

decline to address the issue of express waiver because it was not 

presented to or ruled upon by the district court. See Meier, 641 N.W.2d 

at 537 (“[I]ssues must ordinarily be both raised and decided by the 

district court before we will decide them on appeal.”). As a result, we 

proceed to address the constructive waiver arguments. 

We first recognized constructive waiver of sovereign immunity in 

Kersten, a case in which the State appealed from a district court decision 

refusing to grant its special appearance asserting the defense of 

sovereign immunity in a suit based on the alleged breach of contract 

between the department of social services and a private corporation. 207 

N.W.2d at 118. We departed from our prior precedent that declared only 

the legislature, through an express statute, could give consent for the 

State to be sued. Id. at 119. We recognized that contracts impose 

corresponding obligations on parties, and we were unwilling to permit 

the State to maintain it was immune from suit for breach of its 

obligations. See id. at 119–20. Our court reasoned that allowing the 
 15 

State to avoid liability for breaching a contract would ascribe “bad faith 

and shoddy dealing” to a sovereign. Id. at 120. Thus, we concluded the 

State waives its immunity from breach-of-contract suits by entering into 

a contract. Id. at 122. Additionally, following Kersten, we held sovereign 

immunity could not prevent the State from being called into state court 

to accept the legal obligations and duties attendant to voluntarily 

becoming a landowner. Dvorak, 261 N.W.2d at 489. The two cases 

reflected our belief that the State is answerable for the legal relationships 

it voluntarily creates. See Swanger v. State, 445 N.W.2d 344, 349 (Iowa 

1989) (recognizing Kersten and Dvorak were premised on the State 

voluntarily undertaking legal relationships). If the legislature has 

developed an exclusive and comprehensive system for private suit on 

particular types of claims, we have made it clear that we strictly follow 

the statutory guidelines waiving the State’s immunity. Id. 

Ten years after we decided Swanger, the United States Supreme 

Court decided College Savings Bank, which held that conduct by a state 

was insufficient to waive its constitutional right to be sovereign. 527 

U.S. at 682, 119 S. Ct. at 2229, 144 L. Ed. 2d at 620. In College Savings 

Bank, an agency of the State of Florida was sued by a bank in federal 

court under the Lanham Act. Id. at 671, 119 S. Ct. at 2223–24, 144 

L. Ed. 2d at 613. The Act provided a private cause of action for conduct 

by a state involving interstate marketing and administration of a 

program. Id. at 670, 119 S. Ct. at 2223, 144 L. Ed. 2d at 613. The 

Court found the effort by Congress to define the conduct by states that 

would constitute waiver of immunity ineffective. Id. at 681, 119 S. Ct. at 

2228, 144 L. Ed. 2d at 619. The Court emphasized that sovereign 

immunity was grounded in the Constitution and that the “classic 

description of an effective waiver of a constitutional right is the 
 16 

‘intentional relinquishment or abandonment of a known right or 

privilege.’ ” Id. at 682, 119 S. Ct. at 2229, 144 L. Ed. 2d at 620 (quoting 

Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 

1461, 1466 (1938)). Thus, the test for whether a state has waived its 

sovereign immunity in federal court requires evidence of express consent 

to suit, a “clear declaration” that the state intends to submit itself to 

federal court jurisdiction. Id. at 676, 119 S. Ct. at 2226, 144 L. Ed. 2d at 

616. Implied or constructive waiver is insufficient to waive the state’s 

constitutional right. Id. at 680, 119 S. Ct. at 2228, 144 L. Ed. 2d at 619. 

 We applied the express waiver standard in Anthony v. State, 632 

N.W.2d 897, 900 (Iowa 2001). In Anthony, state employees sued the 

department of public safety for overtime pay requirements under the Fair 

Labor Standards Act (FLSA). 632 N.W.2d at 899. In noting the strong 

presumption of state sovereignty expressed by the Constitution, we 

examined post-Alden decisions from other state courts that found 

express waiver sufficient to waive immunity. Id. at 900. We applied the 

broad understanding of constitutionally protected immunity reflected by 

the Eleventh Amendment and confirmed by the Tenth Amendment to our 

analysis and ultimately found the Iowa Wage Payment Collection Law 

expressly waived the state’s immunity under the FLSA. Id. at 901–02. 

We subsequently affirmed the application of these principles in Raper v. 

State, 688 N.W.2d 29, 54 (Iowa 2004). 

 The State argues the development of our law since Kersten and 

Dvorak reveals constructive waiver of sovereign immunity could not apply 

under the FMLA because it was acting to implement a comprehensive 

federal mandate. Instead, the State argues only express waiver could 

apply under the FMLA, which Lee failed to raise. 
 17 

 We reject the argument by the State that we no longer recognize 

constructive waiver of immunity. We adopted the doctrine of 

constructive waiver in Kersten based on the public policy that it would be 

abhorrent to permit the State to enter into contracts with no 

corresponding obligation to perform its promises under the contract. The 

same public policy grounds that supported the adoption of the doctrine 

at that time exist today, and our constructive-waiver doctrine similarly 

remains viable today despite the federal approach to limit waiver of 

sovereign immunity to express waiver. Thus, we turn to examine if the 

district court was correct to find constructive waiver of immunity in this 

case. 

The district court in this case found the judicial branch 

constructively waived the State’s immunity “through its conduct.” This 

conduct was identified in three ways. First, the judicial branch used its 

employee handbook to inform employees of their right to take self-care 

leave under the FMLA. Second, the judicial branch failed to inform the 

employees they could not sue the State for money damages if they were 

terminated for taking self-care leave. Third, supervising employees of the 

judicial branch knew it was illegal to terminate employees for taking selfcare leave. 

As to the first type of conduct identified by the district court, our 

law recognizes that provisions contained in state employee handbooks 

can support constructive waiver of sovereign immunity. Employee 

handbooks can create contracts between employers and employees. 

Anderson v. Douglas & Lomason Co., 540 N.W.2d 277, 283 (Iowa 1995). 

Although the State is generally immune from suits for money damages, 

see Montandon v. Hargrave Constr. Co., 256 Iowa 1297, 1299, 130 

N.W.2d 659, 660 (Iowa 1964) (recognizing the general common law rule 
 18 

of immunity), the State may constructively waive its immunity by 

entering into a contract. Kersten, 207 N.W.2d at 120. Thus, if a state 

employee handbook creates a contract, the State constructively waives 

its immunity from suit over that contract. 

Yet, Lee did not bring a breach-of-contract claim, and she never 

sought to establish that the handbook created a contract.3 Thus, this 

case is distinguished from Kersten because the State in that case did not 

dispute the existence of a contract, but only asserted it should be 

immune from suit for breach of contract. 

Nevertheless, we have not confined the constructive waiver of 

immunity doctrine to contracts entered into by the State, but have 

applied it in other circumstances where the State voluntarily assumes 

legal consequences. See Dvorak, 261 N.W.2d at 489. Thus, in addition 

to conduct by the State in entering into a contract, other conduct of the 

State can give rise to constructive waiver of immunity. Therefore, we 

must review the findings of the district court to determine if they support 

 3The summary judgment record and trial record show this case was tried and 

submitted to the fact finder on Lee’s claims of interference with FMLA rights and 

retaliatory discharge for taking FMLA leave. The verdict, accordingly, revealed no 

finding the FMLA leave provisions of the handbook created a contract. Additionally, the 

district court made no such separate finding. The district court made no such finding 

because the issue was never presented. Instead, the focus of the underlying claims 

litigated at trial was the FMLA constituted federal law that state employers were 

required to follow. The issue of implied waiver of immunity was only raised by Lee as 

an alternative legal argument in response to the State’s legal defense that it was 

immune from suit because Congress never intended to abrogate states’ immunity in 

enacting the FMLA. 

Consequently, the district court addressed Lee’s implied-waiver argument and 

accepted it by concluding the conduct of the State in putting the FMLA leave provisions 

in the handbook constituted implied waiver of immunity. Thus, we can only review 

whether this legal conclusion by the district court was legal error based on the issues 

presented by the parties. We therefore do not consider the issue of whether the 

handbook was an implied contract under Iowa law, a claim not presented to the district 

court. 
 19 

the legal conclusion that the State constructively waived its immunity 

based on the conduct identified by the district court. 

We begin our review of the district court decision with two 

important legal considerations. First, under 29 C.F.R. § 825.300–

.301(a)(1) (2003), employers covered by the FMLA were required to post 

notice of employees’ rights under the Act in prominent places on the 

premises and in employee handbooks. Second, under the FMLA, 

Congress exercised its federal supremacy powers over the states to 

provide self-care leave to state employees. Thus, the states were not only 

required to provide self-care leave to their employees under the FMLA, 29 

U.S.C. § 2612(a)(1)(D), they were also directed to inform employees about 

the self-care provisions by placing notice of the provisions in employee 

handbooks. 29 C.F.R. § 825.300–.301(a)(1). Yet, Lee presented no 

evidence to suggest that the inclusion of the self-care leave provisions in 

the handbook was for any purpose other than to comply with the federal 

regulation implementing the FMLA. It was incumbent on Lee to produce 

evidence to show the State did not place the provisions in its handbook 

to comply with federal law. See Race v. Iowa Elec. Light & Power Co., 257 

Iowa 701, 706, 134 N.W.2d 335, 338 (Iowa 1965) (“A party having the 

affirmative of a proposition is always required to prove it.”). 

The district court also supported its decision by finding the State, 

in implementing the FMLA through the employee handbook, failed to 

inform workers that its immunity would be retained. Lee, however, had 

the burden to show that the exclusion of the language was designed to 

waive sovereign immunity. Again, Lee failed to produce any such 

evidence. 

Likewise, knowledge by judicial branch employees that it would be 

illegal to terminate an employee for using FMLA leave does not tend to 
 20 

make the conduct of implementing the federal mandate voluntary. 

Knowledge of the federal supremacy doctrine does not make 

implementation of a federal statute prima facie proof of a voluntary offer 

to pay money damages for the statute’s violation. 

We conclude the district court erred as a matter of law in 

concluding the State constructively waived its immunity by placing FMLA 

leave provisions in its employee handbook. The circumstances of this 

case are vastly different from Kersten and Dvorak and cannot support 

constructive waiver of immunity protected under the constitution. 

IV. Conclusion. 

 The cloak of immunity granted to the State precludes state 

employees from suing the state for monetary relief when denied self-care 

leave under the FMLA. Coleman, ___ U.S. at ___, 132 S. Ct. at 1350, ___ 

L. Ed. 2d at ___ (Ginsburg, dissenting). Nevertheless, states are bound to 

follow the self-care provisions of the FMLA, and state employees who are 

wrongfully denied self-care leave are still permitted to seek injunctive 

relief against the responsible state official. Id. (citing Ex parte Young, 209 

U.S. 123, 155–56, 28 S. Ct. 441, 452, 52 L. Ed. 714, 727 (1908) 

(establishing proposition that suit for injunctive relief against state 

official does not offend sovereign immunity)). Additionally, the U.S. 

Department of Labor may bring actions for damages or an injunction on 

behalf of an employee against a state for violating the self-care 

provisions. See 29 U.S.C.A. § 2617(b)(2)–(3), (d). 

 In this case, the judgment entered by the district court was 

predicated on legal error. Accordingly, the noninjunctive relief granted in 

the judgment cannot stand, and we must reverse the district court. We 

remand the case to the district court to determine what relief granted in 

its judgment is still available to Lee within the framework of this lawsuit, 
 21 

findings of the jury at trial, and the cloak of immunity protecting the 

State. The district court shall permit the parties to be heard on this 

issue and enter a new final judgment for such relief. We do not retain 

jurisdiction. Costs are assessed to Lee. 

DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF 

DISTRICT COURT REVERSED; CASE REMANDED FOR FURTHER 

PROCEEDINGS. 

 All justices concur except Mansfield, J., who takes no part.