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Plaintiffs face uphill battle for self-leave FMLA suits

By Steve Lash and Correy E. Stephenson

State employees seeking to file suit under the Family and Medical Leave Act’s self-care provision face an unlikely future after a recent U.S. Supreme Court ruling.

The court recently issued a plurality decision in Coleman v. Maryland Court of Appeals holding that Congress could not abrogate states’ sovereign immunity from suit without first documenting “a pattern of constitutional violations” and then creating “a remedy congruent and proportional to the documented violations,” Justice Anthony M. Kennedy wrote. “It failed to do so when it allowed employees to sue the state for violations of the FMLA’s self-care provision.”

In a statement, Maryland Attorney General Douglas F. Gansler, whose office represented the state, said that the “court’s opinion reaffirms the sovereignty of states that is so critical to Maryland and to the function of our country’s federal system of government.”

But Sarah Crawford, director of workplace fairness at the Washington-based National Partnership for Women & Families, called the decision “very troubling.”

“The court failed to appreciate what Congress was intending to do,” said Crawford, whose group submitted an amicus brief supporting the plaintiff. “Congress clearly intended to provide for state workers to validly exercise their rights to self-care leave.”

Charlotte Fishman, an employment law attorney and executive director of a discrimination research organization in San Francisco called Pick Up the Pace, noted that the decision will directly affect only state employees who are seeking monetary damages for a violation of FMLA’s self-care leave provisions and are not also covered by a comparable state law.

But the ruling will have a negative impact on individuals seeking self-care leave in states that do not provide for it, she said.

Gender discrimination and self-care

The case began when Daniel Coleman, once the executive director of procurement and contract administration at the Administrative Office of the Courts in Annapolis, Md., claimed he was illegally fired in August 2007 for requesting sick leave for a condition related to hypertension and diabetes.

After he was fired, Coleman filed suit. Both a U.S. District Court judge and the 4th Circuit dismissed his FMLA claim on sovereign immunity grounds.

The Supreme Court granted certiorari and heard oral arguments in January.

Under FMLA, Congress expressly provided that states can be sued for violating the statute’s self-care and family-care provisions.

In an earlier case, the Supreme Court upheld the right to sue states for violating the family-care provisions, based on evidence of gender discrimination before FMLA was enacted in 1993.

While Coleman is male, he argued that the same rationale supported a claim under the self-care provision.

But in ruling against him, the court said that Congress had insufficient evidence that state governments had discriminated against female employees who took sick leave to care for themselves and not covered family members.

Justice Ruth Bader Ginsburg issued a strong dissent from the majority plurality, which was made up of Justices Kennedy, Clarence Thomas, Samuel A. Alito Jr., and Chief Justice John G. Roberts Jr.

Reading her dissent from the bench, Ginsburg said self-care leave “is a key part of Congress’ endeavor to make it feasible for women to work and have families.”

Ginsburg’s dissent was joined by Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

Up to the states?

Michael L. Foreman, who represented Coleman before the court, said he was “disappointed and frustrated” with the decision.

In the plurality opinion, Kennedy “goes out of his way” to state that job discrimination against women is a “persistent, unfortunate reality,” said Foreman, who directs the civil rights appellate clinic at Pennsylvania State University’s Dickinson School of Law. “Yet [he] is unwilling to respect Congress’ ability to deal with it.”

The court’s decision creates a bifurcated analysis of the intent of the FMLA, providing that plaintiffs may recover damages in suits alleging violations of the family-leave provisions, but not the self-care provision, said Kara DelTufo, a partner at Hirsch, Roberts, Weinstein, an employment firm in Boston.

The decision “will cause a lot of states and state agencies to evaluate what their [leave] policies are and how to apply them,” she said.

But the lack of a financial remedy for these plaintiffs does not render the statute meaningless, said Frank Alvarez, a partner at the White Plains, N.Y., office of national employment law firm Jackson Lewis.

The decision “doesn’t authorize state employers to violate FMLA or give them a free pass to ignore the self-care provisions,” Alvarez said. “It just blocks suits for monetary relief.”

Injunctive and prospective relief is still available, Fishman said.

However, she contended that the court’s focus on the self-care leave provision alone, instead of in the context of the entire act, resulted in a disservice to plaintiffs.

“The plurality did not show much of an appreciation for the fact that employment discrimination remains a significant issue,” Fishman said.

Alvarez cautioned employers that four justices made clear in the minority opinion their position that rights must be expanded for all employees in order to combat gender discrimination.

The split among the justices is “one that will linger and may shape employment law” beyond the FMLA and Coleman decision, he said, on the issue of how to combat gender discrimination in the workplace.

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