1The Honorable Nanette K. Laughrey, United States District Judge for the

Western District of Missouri.

2Plaintiff also sought to recover under the Americans with Disabilities Act

(ADA), but she later conceded that Defendant enjoyed Eleventh Amendment immunity

from this claim under our decision in Alsbrook v. City of Maumelle, 184 F.3d 999,

1010 (8th Cir. 1999) (en banc) (Congress lacked power to abrogate states’ Eleventh

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 99-3873

___________

Regenia G. Townsel, *

*

Appellant, *

* On Appeal from the United States

v. * District Court for the

* Western District of Missouri.

State of Missouri, *

*

Appellee. *

___________

 Submitted: November 13, 2000

 Filed: December 5, 2000

___________

Before RICHARD S. ARNOLD, HANSEN, and BYE, Circuit Judges.

___________

RICHARD S. ARNOLD, Circuit Judge.

Regenia Townsel appeals the District Court’s1 adverse grant of judgment on the

pleadings in her suit under the Family Medical Leave Act (FMLA) against her former

employer, the State of Missouri.2 We affirm.
Amendment immunity under Title II of ADA).

3Certiorari has been granted on the issue whether the Eleventh Amendment bars

ADA suits by private citizens in federal court against nonconsenting states. See 68

U.S.L.W. 3649 (Apr. 17, 2000).

-2-

Upon de novo review of the record before us, see Porous Media Corp. v. Pall

Corp., 186 F.3d 1077, 1079 (8th Cir. 1999), and consideration of the parties’

submissions on appeal, we conclude that the District Court properly dismissed

Plaintiff’s FMLA claim against Defendant as barred by Eleventh Amendment

immunity. See Chittister v. Department of Community and Econ. Dev., 226 F.3d 223,

228-29 (3d Cir. 2000) (legislative scheme of FMLA is not congruent or proportional

to any identified constitutional harm; noticeably absent from legislative history is

finding that sick-leave practices in public employment amount to intentional gender

discrimination in violation of equal protection; FMLA provisions do not represent valid

exercise of Congress’s power to enforce Fourteenth Amendment and therefore FMLA

does not abrogate Eleventh Amendment immunity); Kazmier v. Widmann, 225 F.3d

519, 527-29 (5th Cir. 2000) (section of FMLA allowing leave for plaintiff’s own

“serious health condition” does not effectively abrogate states’ Eleventh Amendment

immunity; FMLA “prohibits substantially more state employment decisions than would

likely be held unconstitutional under the applicable equal protection, rational basis

standard” (quoting Kimel v. Florida Bd. of Regents, 120 S. Ct. 631, 647 (2000)); Sims

v. University of Cincinnati, 219 F.3d 559, 566 (6th Cir. 2000) (FMLA is not valid

exercise of Congress’s power under Section Five of Fourteenth Amendment); Hale v.

Mann, 219 F.3d 61, 69 (2d Cir. 2000) (Congress did not have authority to abrogate

sovereign immunity under provisions of FMLA at issue (provisions for medical leave

to deal with one’s own serious health condition)); Garrett v. University of Ala. at

Birmingham Bd. of Trustees, 193 F.3d 1214, 1219 (11th Cir. 1999) (same), cert.

granted,

3

 120 S. Ct. 1669 (2000); Cohen v. Nebraska Dep’t of Admin. Servs., 83 F.

Supp. 2d 1042, 1045 (D. Neb. 2000) (of circuits and district courts to consider issue
-3-

since 1998, all have concluded that Congress lacked power to abrogate states’

immunity from suit under FMLA). 

The key point is that the FMLA makes illegal a great deal of conduct not even

arguably prohibited by the Fourteenth Amendment, and provides for remedies a great

deal more extensive than the Fourteenth Amendment could even arguably require.

Accordingly, we hold 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.' " Kimel v. Florida Board of Regents, supra, 120

S. Ct. at 647, quoting City of Boerne v. Flores, 521 U.S. 507, 537 (1997). The

enactment of the FMLA cannot fairly be said to be an exercise of Congress's power to

"enforce . . . the provisions of" the Fourteenth Amendment, in a way authorized by §5

of that Amendment. 

Accordingly, we affirm the decision of the District Court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.