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KILVITIS v. COUNTY OF LUZERNE

June 25, 1999

MARY KILVITIS, PLAINTIFF
v.
COUNTY OF LUZERNE, COURT OF COMMON PLEAS OF LUZERNE COUNTY, AND JAMES TUPPER, DISTRICT JUSTICE.



The opinion of the court was delivered by: Vanaskie, District Judge.

  MEMORANDUM

On November 6, 1998, plaintiff Mary Kilvitis (Kilvitis) filed this action against defendants County of Luzerne, Court of Common Pleas of Luzerne County, and District Justice James Tupper (Tupper), contending that the defendants violated her rights under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601, et seq. (Dkt. Entry 1.) Claims were asserted against each of the defendants under the FMLA and the Civil Rights Act of 1871, 42 U.S.C. § 1983. On February 5, 1999, defendants Court of Common Pleas of Luzerne County and District Justice James Tupper filed a motion for judgment on the pleadings, asserting, inter alia, that because they are state instrumentalities, the Eleventh Amendment barred Kilvitis' claims against them. (Dkt. Entry 8.)

Whether the Eleventh Amendment precludes an FMLA action against a state governmental entity is apparently an issue of first impression in this Circuit. The majority of courts in other jurisdictions have concluded that Congress did not effectively abrogate Eleventh Amendment immunity in enacting the FMLA. I find the majority rationale persuasive. Because the FMLA did not effectively abrogate Eleventh Amendment immunity, defendant Court of Common Pleas of Luzerne County's motion for judgment on the pleadings will be granted as to the FMLA claim. For the same reasons, Tupper's motion for judgment on the pleadings will be granted on Kilvitis' official capacity FMLA claim against him. However, because the FMLA provides for individual liability, Tupper's motion for judgment on the pleadings will be denied with respect to Kilvitis' individual capacity FMLA claim against him.

Tupper and Luzerne County Court of Common Pleas have also moved for dismissal of the § 1983 claim. Because the FMLA provides a comprehensive remedial framework, enforcement of alleged FMLA violations through a § 1983 action is foreclosed. Therefore, defendants' motion for judgment on the pleadings will be granted as to Kilvitis' § 1983 claim.

I. BACKGROUND

Kilvitis was employed by Luzerne County as a secretary in the District Justice system from 1981 through 1990, when she voluntarily left her employment. (Complaint (Dkt. Entry 1) ¶ 12-13.) In 1992, Kilvitis was rehired by Luzerne County and the Court of Common Pleas of Luzerne County as a "floater secretary." (Id. ¶ 14.) In August of 1994, Kilvitis was assigned to Tupper's office. (Id. ¶ 15.) On September 7, 1996, Kilvitis was diagnosed as suffering from "severe anxiety." (Id. ¶ 17.) On September 17, 1996, Kilvitis sought and received medical leave from her employment based upon her medical condition. (Id. ¶ 18-20, 23.) On October 8, 1996, Kilvitis sought and received an extension of her medical leave time. (Id. ¶ 27.)*fn1 On November 5, 1996, Kilvitis received a third medical certification regarding her condition. (Id. Ex. C.)*fn2 On November 8, 1996, Tupper terminated Kilvitis' employment. (Id. Ex. D.)*fn3

II. DISCUSSION

A. Standard of Review

Under Federal Rule of Civil Procedure 12(c), any party may move for judgment after the pleadings are closed. Under Rule 12(c), a court must accept all factual averments as true and draw all reasonable inferences in favor of the nonmoving party. See Society Hill Civic Ass'n v. Harris, 632 F.2d 1045, 1054 (3d Cir. 1980). In deciding a Rule 12(c) motion, however, a court may take judicial notice of any matter of public record. Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3d Cir. 1994). A party moving for judgment on the pleadings under Rule 12(c) must demonstrate that there are no disputed material facts and that judgment should be entered as a matter of law. See Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289, 290-91 (3d Cir. 1988); Institute for Scientific Info., Inc. v. Gordon & Breach, 931 F.2d 1002, 1005 (3d Cir.), cert. denied, 502 U.S. 909, 112 S.Ct. 302, 116 L.Ed.2d 245 (1991). Judgment may only be entered where "no set of facts could be adduced to support the plaintiffs' claim for relief." Bryson v. Brand Insulations, Inc., 621 F.2d 556, 559 (3d Cir. 1980).

B. Defendant Court of Common Pleas of Luzerne County

1. Eleventh Amendment Immunity and the FMLA

The Eleventh Amendment to the Constitution of the United States of America provides:

    The Judicial Power of the United States shall not be
  construed to extend to any suit in law or equity
  commenced or prosecuted against one of the United
  States by Citizens of another State, or by Citizens or
  Subjects of any Foreign State.

U.S. Coast. amend. XI. The Eleventh Amendment prohibits suits against a state by its own citizens or citizens of another state. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890); see also Thomson v. Ohio State Univ. Hosp., 5 F. Supp.2d 574, 576 (S.D.Ohio 1998) ("It is well established that the Eleventh Amendment to the United States Constitution prevents a federal court from entertaining a suit brought by a citizen against his own state.").*fn4 There are two circumstances in which the Eleventh Amendment will not bar suit against a state: (1) where a state has waived its immunity; and (2) where Congress has abrogated the states' Eleventh Amendment immunity. See College Sav. Bank v. Florida Pre paid Postsecondary Expense Bd., ___ U.S. ___, 119 S.Ct. 2219, 2222, ___ L.Ed.2d ___ (1999); Driesse v. Florida Bd. of Regents, 26 F. Supp.2d 1328, 1331 (M.D.Fla. 1998); McGregor v. Goord, 18 F. Supp.2d 204, 205 (N.D.N.Y. 1998); Thomson, 5 F. Supp.2d at 576; Biddlecome v. University of Tax., No. 96-1872, 1997 WL 124220, at *2 (S.D.Tex. Mar. 13, 1997) (noting that there are only "two specific and deliberate mechanisms" that can abrogate the Eleventh Amendment). Kilvitis has not argued that Pennsylvania has waived its Eleventh Amendment sovereign immunity in relation to her claims. Rather, Kilvitis argues that Congress, in passing the FMLA, abrogated Pennsylvania's Eleventh Amendment immunity.

In order to find that Congress abrogated the states' Eleventh Amendment immunity, a court must find: (1) that Congress has "`unequivocally expresse[d] its intent to abrogate the immunity,'" and (2) that Congress acted pursuant to a valid exercise of its power. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996); see also Wheeling & Lake Erie Railway Co. v. Public Utility Comm'n of Pa., 141 F.3d 88, 91 (3d Cir. 1998); College Sav. Bank v. Florida Pre paid Postsecondary Ed. Expense Bd., 131 F.3d 353, 357 (3d Cir. 1997), aff'd, ___ U.S. ___, 119 S.Ct. 2219, ___ L.Ed.2d ___ (1999). Congressional intent to abrogate must be obvious, i.e., a clear legislative statement. Seminole Tribe, 517 U.S. at 55, 116 S.Ct. 1114; Wheeling, 141 F.3d at 92; College Sav. Bank, 131 F.3d at 357. For instance, in Seminole Tribe, the United States Supreme Court determined that the mere fact that Congress bad authorized suit against a state in federal court was not sufficient to abrogate the Eleventh Amendment. Id. at 56, 116 S.Ct. 1114 (finding such authorization for suit against a state did not evince an "unmistakably clear" intent to abrogate the Eleventh Amendment).

In terms of the FMLA, the definition of an "employer" includes any "public agency" as defined in section 203(x) of Title 29. 29 U.S.C. § 2611 (4)(A)(iii). Section 203(x), which is part of the Fair Labor Standards Act (FLSA), provides that a "public agency" includes "the government of a State or political subdivision thereof; any agency of . . . a State, or political subdivision of a State." 29 U.S.C. § 203 (x). Moreover, the FMLA provides an employee with the right to maintain a suit for damages "against any employer (including a public agency) in any Federal or State court of competent jurisdiction." 29 U.S.C. § 2617 (a)(2). In considering this language, most district courts have found that these provisions provide sufficient evidence of Congress' intent to abrogate the Eleventh Amendment. See McGregor, 18 F. Supp.2d at 207 ("[T]his language functions as a clear statement of congressional intent to abrogate the states' immunity from suit under the Eleventh Amendment."); Thomson, 5 F. Supp.2d at 577 ("Congress clearly expressed an intention to abrogate the immunity of state governments to the FMLA when it included state and local governments as proper employer-defendants under the act."); Biddlecome, 1997 WL 124220, at *3 ("[T]his Court finds that Congress intended to abrogate state sovereign immunity under the FMLA and that this intent is present in the unmistakable language of the statute itself."); Jolliffe v. Mitchell, 986 F. Supp. 339, 342 (W.D.Va. 1997) ("The FMLA clearly expresses an intent to abrogate sovereign immunity."); Knussman v. State of Md., 935 F. Supp. 659, 663 (D.Md. 1996) (finding unequivocal textual evidence in the FMLA that Congress intended to abrogate the Eleventh Amendment). But see Driesse, 26 F. Supp.2d at 1331 ("Congress did not provide a clear statement of intent to abrogate sovereign immunity in the FMLA.").*fn5

Whether Congress evinced an intention to abrogate Eleventh Amendment immunity is a close call. A decision on this issue need not be made, however, because it is clear that, assuming such an intention, congressional abrogation of Eleventh Amendment immunity for FMLA suits exceeded congressional authority.

As to whether Congress acted within the scope of its authority, a threepart test must be conducted: (1) whether the statute may be regarded as an enactment to enforce the Equal Protection Clause of the Fourteenth Amendment; (2) whether the statute is plainly adapted to its enforcement goal; and (3) whether the statute is consistent with the Constitution. Katzenbach v. Morgan, 384 U.S. 641, 651, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966); see also Wheeling, 141 F.3d at 92.*fn6

As to the first part, the language within the FMLA makes clear that Congress intended to invoke the Equal Protection Clause. As recently noted by one court:

  In enacting [the] FMLA, Congress sought to promote the
  stability and economic security of the family "in a
  manner consistent with the Equal Protection Clause of
  the Fourteenth Amendment, minimize[] the potential for
  employment discrimination on the basis of sex" and to
  "promote the goal of equal employment opportunity for
  women and men."

McGregor, 18 F. Supp.2d at 207 (quoting 29 U.S.C. § 2601 (b)(4) & (5)). Based upon this language, those courts which have considered the question have agreed that the FMLA meets the first prong of the Katzenbach test. See Driesse, 26 F. Supp.2d at 1333 (finding that the FMLA, on its face, provides that it is an attempt to enforce the Equal Protection Clause); McGregor, 18 F. Supp.2d at 208 ("These statements show that the FMLA was at least ostensibly an attempt to enforce the Fourteenth Amendment's guarantee of equal protection."); Thomson, 5 F. Supp.2d at 578 ("The Court concludes that the FMLA may be regarded, on its face, as an attempt to enforce the Equal Protection Clause.").

In terms of the second prong, it must be determined whether the statute was "plainly adapted" to enforcement of the equal protection clause of the Fourteenth Amendment. Under section 5 of the Fourteenth Amendment,*fn7 Congress has the power to enforce the Fourteenth Amendment, but, in doing so, cannot change or define substantive law. See College Sav. Bank, 119 S.Ct. at 2224 ("[T]he term `enforce' is to be taken seriously. [T]he object of valid § 5 legislation must be carefully delimited remediation or prevention of constitutional violations."); City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 2164, 138 L.Ed.2d 624 (1997) ("Congress does not enforce a constitutional right by changing what the right is. It has been given the power `to enforce,' not to determine what constitutes a constitutional violation."); see also College Sav. Bank, 131 F.3d at 359 ("Therefore, while Congress has broad remedial power under the Fourteenth Amendment, it does not have a basis for enacting substantive, nonremedial measures."); Thomson, 5 F. Supp.2d at 579 ("Legislation creating a new substantive right cannot be passed pursuant to the Fourteenth Amendment because Congress' enforcement authority under § 5 is limited to action which is `remedial and preventive' in nature."). As noted by the United States Supreme Court:

  While the line between measures that remedy or prevent
  unconstitutional actions and measures that make a
  substantive change in the governing law is not easy to
  discern, and Congress must have wide latitude in
  determining where it lies, the distinction exists and
  must be observed. There must be a congruence and
  ...

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