Opinion
Civil Action No. 1:03-CV-094-C.
July 12, 2004
MEMORANDUM OPINION AND ORDER
CAME ON FOR CONSIDERATION the Motion for Summary Judgment filed by Defendant, BIG SPRING STATE HOSPITAL ("Defendant" or "the Hospital"), on April 27, 2004, and the Response filed by Plaintiffs, CHARLES SOLLEY and DOLORES SOLLEY, on June 14, 2004. The Court further considered Defendant's Reply to Plaintiffs' Response, filed on June 28, 2004, without leave of the Court. See http://www.txnd.uscourts.gov/judges ¶ II.B, Requirements for District Judge Sam R. Cummings. After considering all the relevant arguments and evidence, this Court is of the opinion that Plaintiffs' Motion for Summary Judgment should be GRANTED in part and DENIED in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
On June 12, 2003, Plaintiffs sued Defendant for violations of the Family and Medical Leave Act ("FMLA"), for procedural due process and equal protection violations under the Fourteenth Amendment of the United States Constitution, and for state claims for intentional infliction of emotional distress and defamation. Plaintiffs were employed by the Hospital, which is a state entity under the control of the Texas Department of Mental Health and Mental Retardation. Plaintiffs allege that while employed by the Hospital, they were eligible for coverage under the FMLA but that they were subjected to practices by the Hospital which interfered with their exercise of their rights under the FMLA when they attempted to take leave for personal or family medical problems. Plaintiffs claim that they were disciplined, were subjected to performance counseling, and received unsubstantiated written reprimands, all because of their lawful use of medical leave. As a result, Plaintiffs filed a complaint in April of 2002 with the United States Department of Labor ("DOL") claiming that the Hospital was not complying with the FMLA.
Subsequent to filing their complaint with the DOL, Plaintiffs allege, the Hospital retaliated against them through harassment and eventually by wrongfully terminating Mrs. Solley based on a false charge of patient abuse. Furthermore, Plaintiffs allege that the hostility and harassment continued against Mr. Solley and that he was retaliated against by reprimanding him for a situation that was not under his control and placing him on Decision Making Leave, which is a form of discipline one step before termination. Plaintiffs allege that these actions by the Hospital caused Mr. Solley so much distress that he had to take anti-depressant medication and was advised by his doctor to resign. Plaintiffs allege that, eventually, Mr. Solley was constructively discharged when he was forced to resign due to the hostile environment created by the Hospital.
II. STANDARD
Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," when viewed in the light most favorable to the non-moving party, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (internal quotations omitted). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 248. In making its determination, the court must draw all justifiable inferences in favor of the non-moving party. Id. at 255. Once the moving party has initially shown "that there is an absence of evidence to support the nonmoving party's case," Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-movant must come forward, after adequate time for discovery, with significant probative evidence showing a triable issue of fact. FED.R. CIV.P. 56(e); State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). Conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation are not adequate substitutes for specific facts showing that there is a genuine issue for trial. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428 (5th Cir. 1996) (en banc); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993). To defeat a properly supported motion for summary judgment, the non-movant must present more than a mere scintilla of evidence. See Anderson, 477 U.S. at 251. Rather, the non-movant must present sufficient evidence upon which a jury could reasonably find in the non-movant's favor. Id. The court will not, "in the absence of any proof, assume that the non-moving party could or would prove the necessary facts." McCallum Highlands v. Washington Capital Dus, Inc., 66 F.3d 89, 92 (5th Cir. 1995), as modified, 70 F.3d 26 (5th Cir. 1995). Affidavits, or portions thereof, that are not based on personal knowledge or that are based merely on information and belief cannot be considered in deciding a motion for summary judgment. Richardson v. Oldham, 12 F.3d 1373, 1378-79 (5th Cir. 1994).Interpretations of statutory provisions that are dispositive and which raise only questions of law, there being no contest as to the operative facts, are particularly appropriate for summary judgment. Dobbs v. Costle, 559 F.2d 946, 947 (5th Cir. 1977).
III. DISCUSSION
FMLA Claims
Plaintiffs allege that the Hospital violated the FMLA by interfering with their exercise of their rights to leave under the Act, in violation of 29 U.S.C. § 2615(a)(1). Plaintiffs also allege that the Hospital violated 29 U.S.C. § 2615(a)(2) by retaliating against them for filing a complaint about that interference. The FMLA, in § 2612(a)(1), grants leave to an employee under four circumstances enumerated in four subsections: (A) for the birth of a child; (B) for the adoption of a child; (C) to care for a seriously ill spouse, parent or child; and (D) when an employee himself suffers a serious illness. Plaintiffs claim that the Hospital interfered with the exercise of their right to family-care leave and personal-medical leave as provided by subsections (C) and (D).
Defendant argues that the Eleventh Amendment provides it with immunity to Plaintiffs' claims for monetary damages for violations under § 2612(a)(1)(D). The Eleventh Amendment provides states with immunity from suit, absent a state's consent or Congress' express abrogation of immunity. Congressional abrogation of state immunity requires a clear expression of Congress' intent to abrogate and a valid exercise of congressional power pursuant to Section 5 of the Fourteenth Amendment. Seminole Tribe v. Florida, 517 U.S. 44, 55 (1996). The Section 5 power to enforce the Fourteenth Amendment is remedial in nature and limits Congress to correcting violations of rights guaranteed by that amendment. City of Boerne v. Flores, 521 U.S. 507, 519 (1997). Where Congress elects to invoke its Section 5 powers, the remedy it supplies must be congruent and proportional to the violation Congress seeks to correct. Id. at 520. Defendant's argument is based on the Fifth Circuit's decision in Kazmier v. Widmann and the Supreme Court's subsequent ruling in Nevada Department of Human Resources v. Hibbs.
Defendant's Motion for Summary Judgment does not assert Eleventh Amendment immunity for Plaintiffs' claims based on § 2612(a)(1)(C). Consequently, the Court will treat this as a motion for partial summary judgment, leaving for trial the issue of whether Defendant violated Plaintiffs' rights under subsection (C).
In Kazmier, the Fifth Circuit analyzed the FMLA's legislative history to determine whether there was sufficient finding of an actual violation of the constitutional protections of the Fourteenth Amendment to justify Congress' invocation of its Section 5 powers and whether the remedy supplied by the FMLA was congruent and proportional to that violation. Kazmier v. Widmann, 225 F.3d 519 (5th Cir. 2000). In particular, the court in Kazmier subjected both subsection (C) and (D) to the congruence and proportionality analysis. The court determined that Congress' general finding that discrimination based on sex was widespread in the private sector did not justify the application of the FMLA's prophylactic legislation regarding family-care leave to states, where Congress had produced no evidence of sex discrimination in the public sector. Id. at 526. The Kazmier court concluded that "Congress did not validly enact subsection (C) pursuant to its enforcement powers under Section 5; that subsection (C) does not abrogate the States' Eleventh Amendment immunity[.]" Id.
In analyzing the personal-medical leave provision of subsection (D), the Kazmier court interpreted that subsection to be designed to prevent discrimination based on temporary disability. Id. at 528. Again, the court determined that
the legislative record for the FMLA is devoid of any evidence of a pattern of discrimination by the States against the temporarily disabled; and the public sector cannot be tarred with the brush of private sector discrimination to create an inference of unconstitutional discrimination by the States . . . [and] there simply is no `Fourteenth Amendment evil' to which subsection (D) could possibly be congruent and proportional.Id. at 529. Consequently, the Fifth Circuit in Kazmier also held "that Congress did not validly enact subsection (D) pursuant to its enforcement power under Section 5; that subsection (D) does not abrogate the States' Eleventh Amendment immunity[.]" Id.
Subsequent to the Fifth Circuit's decision in Kazmier, the Supreme Court granted certiorari in Nevada Department of Human Resources v. Hibbs in order "to resolve . . . the question whether an individual may sue a State for money damages in federal court for violation of § 2612(a)(1)(C)." Nevada Dep't of Human Resources v. Hibbs, 538 U.S. 721, 725, 123 S. Ct. 1972, 1976, 155 L. Ed. 2d 953 (2001). Contrary to the Fifth Circuit's determination in Kazmier, the Supreme Court's analysis of the legislative history of the FMLA found that "the States' record of unconstitutional participation in, and fostering of, gender-based discrimination in the administration of leave benefits [was] weighty enough to justify the enactment of prophylactic § 5 legislation." Id. at 735. However, the Supreme Court applied that analysis on to the provisions of subsection (C), stating that "Congress' chosen remedy, the family-care leave provision of the FMLA, is congruent and proportional to the targeted violation," Id. (internal quotation marks omitted). The Court then concluded its opinion by again stating that "§ 2612(a)(1)(C) is congruent and proportional to its remedial object, and can be understood as responsive to, or designed to prevent, unconstitutional behavior." Id. at 740. In the entirety of the opinion, the Court in Hibbs constantly refers to the family-care leave provisions of subsection (C) as being designed to remedy or prevent unconstitutional discrimination based on sex. Never once does the Court discuss congruence or proportionality with regard to the personal-medical leave provisions of subsection (D). Accordingly, Defendant argues, this Court is not bound to find that state immunity is abrogated under subsection (D) simply because the Supreme Court in Hibbs held there was a valid abrogation of immunity under subsection (C). Defendant contends instead that the Fifth Circuit's holding in Kazmier that subsection (D) is not a valid abrogation of state immunity is not disturbed by the Supreme Court's opinion in Hibbs and is still binding on this Court.
Plaintiffs argue that, even though the Supreme Court did not analyze subsection (D) in its Hibbs opinion, that Court was not required to measure the full breadth of the FMLA against the constitutional right it was established to enforce, citing Tennessee v. Lane, 541 U.S. ___, 124 S.Ct 1978, 1993 n. 18 (2004). Plaintiffs contend that this Court should not "dissect" and "distinguish between mere subsections" of the FMLA as closely as Defendant argues that Fifth Circuit precedent in Kazmier obligates this Court so to do. However, even the Lane opinion recognized that "the distinction exists and must be observed" between legislation that is valid remedial legislation under Section 5 of the Fourteenth Amendment and that which is not, Lane, 124 S. Ct. at 1986, and in its own analysis parsed the provisions of the ADA. Consequently, this Court will observe the distinction, and determines that the Fifth Circuit's holding in Kazmier, as applied to subsection (D), has not been overturned by the Supreme Court's decision in Hibbs, and is binding on this Court. Eleventh Amendment immunity exists for Defendant against Plaintiffs' claims for monetary damages against Defendant for violation of the FMLA, 29 U.S.C. § 2615(a)(1), for interfering with their rights pursuant to the personal-medical leave provisions of § 2612(a)(1)(D). Defendant is entitled to summary judgment as a matter of law on those claims.
The Lane opinion held that Title II of the ADA was a valid exercise of Congress' Section 5 powers while reiterating its earlier holding in Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 121 S. Ct. 955, 148 L. Ed. 2d 866 (2001) that Title I of the ADA was not. The Supreme Court made this distinction because, although in Garrett it had found that Congress had produced no evidence of a widespread pattern of unconstitutional disability discrimination in public employment to justify the employment provisions of Title I, there was legislative history to support a finding that states had discriminated against the disabled in the provision of public services and programs to justify the public services provisions of Title II, Lane, 124 S. Ct. at 1987-92. Further, the Supreme Court stated in Lane that "nothing in our case law requires us to consider Title II, with its wide variety of applications, as an undifferentiated whole." Id. at 1992.
This view that subsection (D) does not abrogate Eleventh Amendment immunity is shared by at least seven other circuits. See Brockman v. Wyoming Dep't of Family Servs., 342 F.3d 1159, 1165 n. 3 (10th Cir. 2003).
This Court analyzes the question of whether Congress has abrogated states' Eleventh Amendment immunity under the retaliation provision of the FMLA, 29 U.S.C. § 2615(a)(2), by following the same reasoning the Court has applied to the question of the validity of abrogation of the underlying family-care and personal-medical leave provisions of the FMLA. Accordingly, the Court concludes that the Eleventh Amendment bars Plaintiffs' claims for monetary damages against Defendant for violations of the FMLA, 29 U.S.C. § 2615(a)(2), for retaliating against them for exercising their rights to personal medical leave under § 2612(a)(1)(D). See Hale v. Mann, 219 F.3d 61 (2d Cir. 2000) (analyzing together the retaliation and related leave provisions and determining Eleventh Amendment bars retaliation claims when used in conjunction with personal-medical leave provisions of Section 2612(a)(1)(D)). Defendant is entitled to summary judgment as a matter of law on those claims.
Section 1983 Claims
Plaintiffs claim that Defendant violated their constitutional rights to due process and equal protection. Plaintiffs' claim fails, however, because they fail to asset any statutory basis, pursuant to 42 U.S.C. § 1983, for their claim. See Burns-Toole v. Byrne, 11 F.3d 1270, 1273 (5th Cir. 1994). Nevertheless, Plaintiffs request this Court to permit them to amend their constitutional claims in order to state the necessary statutory basis under § 1983. In deciding whether to allow an amendment, this Court "may consider such factors as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, and futility of amendment." In re Southmark Corp., 88 F.3d 311, 314 (5th Cir. 1996). Even were the Court to construe Plaintiffs' request as a properly submitted motion for leave to amend their pleadings, they missed the deadline imposed by this Court by seven months. Further, "a litigant's failure to assert a claim as soon as he could have is properly a factor to be considered in deciding whether to grant leave to amend." Carson v. Polley, 689 F.2d 562, 584 (5th Cir. 1982). All relevant facts were known to Plaintiffs before the deadline and Plaintiffs' counsel should have been well aware of the fact that constitutional claims must be asserted under the appropriate statutory basis. The Court finds the delay particularly unjustifiable because Plaintiffs did not make their request until they filed their response to a motion for summary judgment.
Plaintiffs' request for the Court to allow them to amend their Complaint to assert their constitutional claims under § 1983 does not comply with requirements for amending pleadings under Federal Rule of Civil Procedure 15(a). Plaintiffs neither requested leave of the Court to amend nor did they get the written consent of Defendant to do so.
In addition, the Court notes the ultimate futility of such an amendment. Granting Plaintiffs' request would be pointless because Congress has not abrogated states' Eleventh Amendment immunity to private suits for monetary damages under § 1983, Pennhurst State School and Hospital v. Haldermann, 465 U.S. 89, 99, 104 S. Ct. 900, 907, 79 L. Ed. 2d 67 (1984), and because neither states nor state agencies are "persons" who may be sued within the meaning of § 1983, Will v. Michigan Department of State Police, 491 U.S. 58, 70, 109 S. Ct. 2304, 2312, 105 L. Ed. 2d 45 (1989). Plaintiffs' request to amend their Complaint to assert the proper statutory basis for their constitutional due process and equal protection claims is denied. Therefore, Defendant is entitled to summary judgment as a matter of law on all Plaintiffs' claims for relief for violations of their constitutional rights to due process and equal protection, whether asserted pursuant to § 1983 or not. State Law Claims
Although Plaintiffs' claims for monetary damages would be barred even were the Court to grant leave to Plaintiffs to amend their Complaint to properly assert their constitutional claims under § 1983, Plaintiffs' claims for injunctive relief would not be barred. However, because injunctive relief is still available to Plaintiffs for their claims pursuant to the FMLA, the Court determines that Plaintiffs are not prejudiced by the Court's refusal to grant leave to amend so long after the deadline for amendments.
The Court determines, and Plaintiffs concede, that Defendant enjoys Eleventh Amendment immunity from Plaintiffs' state-law claims for intentional infliction of emotional distress and defamation. Summary judgment is therefore appropriate for Defendant on those claims for relief, and Plaintiffs' request to the Court that they be allowed to amend their Complaint to exclude these claims is moot.
IV. CONCLUSION
After considering all the relevant arguments and evidence, and for the reasons stated above, this Court is of the opinion that Defendant's Motion for Partial Summary Judgment should be GRANTED for Defendant and against Plaintiffs on the following:
1. Plaintiffs' claims for monetary damages against Defendant for violations of the FMLA, 29 U.S.C. § 2615(a)(1), by interfering with their rights pursuant to the personal-medical leave provisions of § 2612(a)(1)(D);
2. Plaintiffs' claims for monetary damages against Defendant for violations of the FMLA, 29 U.S.C. § 2615(a)(2), by retaliating against them for exercising their rights under § 2612(a)(1)(D).
3. All Plaintiffs' claims for relief of any kind against Defendant for violations of their constitutional rights to due process and equal protection, whether asserted pursuant to § 1983 or not; and
4. All Plaintiffs' state-law claims for relief of any kind against Defendant for intentional infliction of emotional distress and defamation.
Defendant did not move for summary judgment on Plaintiffs' claims for declaratory and injunctive relief for violations of the FMLA. Those claims, together with Plaintiffs' claims for monetary damages against Defendant for violations of the FMLA, 29 U.S.C. § 2615(a)(1), by interfering with their rights pursuant to the family-care leave provisions of § 2612(a)(1)(C), and for violations of the FMLA, 29 U.S.C. § 2615(a)(2), by retaliating against them for exercising their rights pursuant to 29 U.S.C. § 2612(a)(1)(C), remain pending and set for trial on September 7, 2004.
Furthermore, Plaintiffs' request for leave to amend their Complaint is DENIED.
All relief not requested is DENIED.
SO ORDERED.