Stephen Laro v. State of New Hampshire

This case requires us to address the scope of congressional power under Section 5 of the Fourteenth Amendment to abrogate the immunity of the states from suit in federal court which the states would otherwise enjoy under the Eleventh Amendment and Supreme Court precedent. At issue is whether the creation of a private cause of action against a state for money damages under the personal medical leave provision of the Family and Medical Leave Act, 29 U.S.C. § 2612(a)(1)(D), validly abrogates that immunity as an exercise of Congress's Section 5 powers.

Following the analytic framework suggested by two recent Supreme Court decisions, Kimel v. Florida Board of Regents, 528 U.S. 62 (2000), and Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 121 S. Ct. 955 (2001), we hold that the FMLA's personal medical leave provision, 29 U.S.C. § 2612(a)(1)(D) (affording leave for serious personal health conditions), insofar as it authorizes private suits against states, does not validly abrogate the states' immunity.(1) Every circuit court which has addressed the personal medical leave provision of the FMLA in this context has held that that provision does not abrogate the immunity of the state as employer in the face of the Eleventh Amendment. Our holding is narrow: the present legislative record does not demonstrate that the personal medical leave provision of the FMLA is an appropriate response necessary to remedy or prevent unconstitutional gender discrimination practiced by the states as employers.

Stephen Laro was employed by the State of New Hampshire as a computer specialist for the New Hampshire Retirement System. In early 1998, he had heart bypass surgery. Because of his medical condition, following his surgery he requested and received leave under the FMLA, which leave began on March 6, 1998. Laro's physician provided the State with a certification which said that Laro's condition required him to be out of work for at least eight weeks, or until at least May 3, 1998. Apparently his employer understood that to mean he requested leave only until that day. When he did not return to work as of May 5, 1998, his employer inquired, and Laro explained that his physician had not yet cleared him to return to work. On May 8, 1998, the State wrote to Laro, informing him that his FMLA leave would expire as of May 29, 1998. Laro replied that he would not need any more time than that, and on May 18, 1998, he provided his employer with a letter from his physician authorizing his immediate return to work. Laro's employer then told him that before returning to work he had to meet with his supervisors, and asked him to schedule an appointment. At this time, Laro expected to return to work on Thursday, May 21, before the expiration of the twelve week FMLA period. Instead, he was given a termination letter, dated May 21, 1998, and setting an effective termination date of May 29, 1998. The termination letter stated that Laro had exhausted his accumulated leave balances and that he was unable to meet the New Hampshire Retirement System's attendance requirements. Other than that statement there is no explanation in the record for New Hampshire's about-face on Laro's ability to return to work.

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While we hold that the personal medical leave provision of the FMLA does not validly abrogate the Eleventh Amendment immunity of the states as employers from private damages actions, other remedies remain. As was the case in Garrett, see 531 U.S. at ---, 121 S. Ct. at 968 n.9, the United States may choose to pursue its own actions against New Hampshire (or other states violating the provisions) to enforce the FMLA and recover damages. See 29 U.S.C. § 2617(b)(2) (empowering the Secretary of Labor to bring civil actions to recover damages for violations of the FMLA). Private parties may also enforce the substantive requirements of the provision against states through injunctive actions against state officials rather than through suits for money damages. See, e.g., Garrett, 531 U.S. at ---, 121 S. Ct. at 968 n.9. Similarly, New Hampshire may voluntarily choose to provide for state employees the same privately enforceable right to FMLA personal medical leave enjoyed by most private sector employees (and many state employees, under state law), either by consenting to suit in federal court or providing an enforceable state remedy. But on this legislative record, Congress does not have the power to empower a federal court to force New Hampshire to pay damages to an employee for failing to provide such leave through a private enforcement action if the state has not consented or waived its immunity.

Affirmed. Each party to bear its own costs.

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