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D ock e t 00-3140

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. e du/thir dc ir c uit_2000/183Filed 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 Distr ict Court for the Eastern District of Pennsylvania, sitting by design ation.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 valid ly abrogated the states' Eleventh Amendment immunity w hen it enacted provisions of the Family and Medical Lea ve Act of 1993 ("FMLA"), 29 U.S.C. SS 2601-54, that require a broad class of employers, including states, to provide th eir employees with 12 weeks of leave "[b]ecause of a se rious health condition that makes the employee unable to perform the functions of the position of such emplo yee" and that permit employees to sue in federal court for v iolations of the Act. We agree with the District Court in thi s case and with the other Courts of Appeals that have consider ed 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. Un iversity of Alabama at Birmingham Board of Trustees, 193 F.3 d 1214, 1219 (11th Cir. 1999), cert. granted on diffe rent issue, 120 S. Ct. 1669 (2000). We therefore affirm the
decision of the District Court.

I.

On February 14, 1997, David D. Chittister, an emplo yee of the Pennsylvania Department of Community and

2Economic Development, requested sick leave. He was

granted leave through May 2, 1997. For reasons not relevant to this appeal, approximately ten weeks la ter, on April 21, 1997, Chittister's leave was revoked, and he was
fired.

Chittister then filed this action in federal distri ct court against the Department and two state officials. Chi ttister asserted a claim under the FMLA, alleging that the defendants had improperly denied him leave and hadf ired him while he was on approved, paid sick leave. He a lso asserted a claim under 42 U.S.C. S 1983 on the grou nd that the defendants had retaliated against him for the e xercise of his First Amendment rights. The District Court g ranted summary judgment for the defendants on Chittister's retaliation claim, and Chittister took a separate a ppeal from that order.1 A jury trial on the FMLA claim resulte d in a verdict in Chittister's favor, but the District Cou rt granted judgment as a matter of law in favor of the Departm ent, 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 tha n the United States or a state may not sue a state in federal
court without the latter state's consent unless Con gress abrogates the state's Eleventh Amendment immunity pursuant to a constitutional provision granting Con gress 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 co nfers such power, Fitzpatrick v. Bitzer, 427 U.S. 445, 45 6 (1976),
but Article I of the Constitution does not. See Sem inole 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 daught er of the

___________________________________________________ ______________

1. We resolve that appeal, No. 99-3425, in a separa te opinion.

3employee and in order to care for such son o r

daughter.

(B) Because of the placement of a son or da ughter with the employee for adoption or foster car e.

(C) In order to care for the spouse, or a s on, daughter, or parent, of the employee, if suc h spouse, son, daughter, or parent has a serious healt h
condition.

(D) Because of a serious health condition t hat 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 ma kes it unlawful for "any employer to interfere with, restr ain, or deny the exercise of or the attempt to exercise, an y right" provided under the Act. 29 U.S.C. S 2615(a)(1). The Act also grants state employees, among others, a private rig ht of action against their employers for violations of th e Act. See 29 U.S.C. S 2617(a)(2)(A). As noted, Chittister sue d 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 El eventh Amendment. Moreover, although Chittister argues otherwise, it is clear that Pennsylvania has not co nsented to suit under the FMLA. The Pennsylvania Constituti on provides that the Commonwealth may be sued only"in such manner, in such courts and in such cases as th e 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 t hat the Commonwealth . . . shall continue to enjoy sovereig n immunity and official immunity and remain immune fr om suit except as the General Assembly shall specifica lly waive the immunity."). It has waived immunity only for ce rtain specified tort claims in suits for damages in state court. See

442 Pa. Cons. Stat. Ann. S 8522. The Supreme Court o f

Pennsylvania has held that the Commonwealth's immun ity is otherwise intact. See Dean v. Commonwealth , 751 A.2d 1130, 1132 (Pa. 2000). The General Assembly has fur ther provided that "[n]othing contained in this subchapt er [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 Constit ution of the United States." S 8521(b). Thus, we have hel d that Pennsylvania has not consented to suit in federal c ourt. See Wheeling & Lake Erie Ry. v. Public Util. Comm'n, 14 1 F.3d 88, 91 (3d Cir. 1998); Laskaris v. Thornburgh , 661 F.2d 23, 25 (3d Cir. 1981).

Chittister asserts that Pennsylvania consented to s uit because an administrative policy "instructs the Commonwealth to post the notices required by the FM LA and its implementing regulations and specifically i nstructs the employees of their right to file suit to enforc e its provisions." Appellant Br. at 29. However, waiver o f 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 immuni ty, an administrative policy cannot amount to a "clear declaration" that Pennsylvania intends to submit it self 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 th efirst time on appeal. It is settled, however, that Eleven th 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 a t 91; College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 131 F.3d 353, 365 (3d Cir. 1997) ("Bec ause the immunity issue sufficiently partakes of the nat ure of a

5jurisdictional bar, it is an issue that may be rais ed any time

during the pendency of the case. Merely because a s tate appears and offers defenses on the merits of the ca se, it does not automatically waive Eleventh Amendment immunity.") (citations and quotation marks omitted) . Thus,
Chittister's contention that the Commonwealth conse nted
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 valid ly 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 sec tion 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 eligib le employees: "An action to recover damages or equitab le relief . . . may be maintained against any employer (inclu ding a public agency) . . . by any one or more employees f or 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 Employmen t 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 liab ility [under the ADEA] prescribed in either of the preceding sen tences 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 repre sented an "unmistakably clear" attempt by Congress to abro gate the states' Eleventh Amendment immunity. Kimel , 12 0 S. Ct. at 640. We therefore hold that the FMLA attempt s to abrogate the states' Eleventh Amendment immunity.

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2. The term "public agency" includes "the governmen t 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 ).

6IV.

As noted, Congress has the authority to abrogate Eleventh Amendment immunity pursuant to its power t o 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 legisla tive scheme to remedying or preventing such conduct." Fl orida 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 t hat, in order for an exercise of Congress's enforcement pow er under the Fourteenth Amendment to be sustained,"[t] here must be a congruence and proportionality between th e injury to be prevented or remedied and the means ad opted to that end." See id. at 2164. In the present case, consequently, there must be "congruence and proportionality" between "the potential for employm ent
discrimination on the basis of sex" and the FMLA's provision of 12 weeks of leave to eligible employee s.

It is apparent that this standard cannot be met her e. In enacting the FMLA, Congress found, among other thin gs, that it is "important . . . that fathers and mother s be able to participate in early childrearing and the care o f family members who have serious health conditions," 29 U.S .C. S 2601(a)(2), that the "lack of employment policies to

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3. Chittister asserts that the abrogation of Pennsy lvania's immunity is a valid exercise of Congress's power to enforce the g uarantees of substantive due process under the Fourteenth Amendm ent. In Florida Prepaid, the Court refused to entertain an alternat ive basis for the legislation in question there because "Congress was so explicit about invoking its authority under Article I and its auth ority . . . under the Fourteenth Amendment." Florida Prepaid Postsecondar y Educ. Expense Bd., 119 S. Ct. at 2208 n.7. In enacting the FMLA, Congress explicitly relied on the Equal Protection Clause of the Fourte enth Amendment. See 29 U.S.C. S 2601(b)(4). We, therefore, decline to c onsider the Due Process
Clause as an alternative basis for the FMLA.

7accommodate working parents can force individuals t o

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 "t he 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 vi olation of the Equal Protection Clause. For example, Congre ss 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 leav e than the FMLA requires would even have a disparate impact on men and women.). Nor are we aware of any substantial ev idence of such violations in the legislative record.

Moreover, even if there were relevant findings or e vidence, the FMLA provisions at issue here would not be cong ruent or proportional. Unlike the Equal Protection Clause , which the FMLA is said to enforce, the FMLA does much mor e than require nondiscriminatory sick leave practices ; it
creates a substantive entitlement to sick leave. Th is requirement is "disproportionate to any unconstitut ional conduct that conceivably could be targeted by the A ct." Kimel, 120 S. Ct. at 645. It is "so out of proporti on to a supposed remedial or preventive object that it cann ot 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 can not be said to be congruent or proportional to any identif ied constitutional harm, and it cannot be said to be ta ilored to preventing any such harm. Accordingly, we hold that the FMLA provisions at issue here do not represent a va lid exercise of Congress's power to enforce the Fourtee nth Amendment and that the FMLA does not abrogate Eleve nth Amendment immunity. Cf. Lavia v. Commonwealth of Pennsylvania, Department of Corrections, No. 99-386 3 (3d Cir., filed Aug. 8, 2000) (Title I of ADA).

8V.

For the reasons stated above, the judgment of the D istrict
Court is affirmed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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