2000 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-30-2000

Chittister v. Department of Community & Econ

Development

Precedential or Non-Precedential:

Docket 00-3140

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Recommended Citation

"Chittister v. Department of Community & Econ Development" (2000). 2000 Decisions. Paper 183.

http://digitalcommons.law.villanova.edu/thirdcircuit_2000/183
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 

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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. 

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 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. 

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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). 

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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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