Larry McKlintic v. 37th Judicial Circuit Court, et al.

Larry McKlintic appeals from the district court's1 dismissal of his suit against
his employer, the 36th Judicial Circuit Court of the State of Missouri, seeking relief
under the provisions of the Family and Medical Leave Act (known as the FMLA)
granting a right to leave on account of the employee's own illness (known as the selfcare
provisions of the Act). The district court held that McKlintic's suit against the
State was barred by the Eleventh Amendment, which the court held, was not
abrogated by the FMLA's self-care provisions. McKlintic v. 36th Judicial Circuit
Court, 464 F. Supp. 2d 871, 875 (E.D. Mo. 2006).

In Townsel v. Missouri, 233 F.3d 1094 (8th Cir. 2000), we held that the FMLA
did not abrogate the states' Eleventh Amendment immunity. Townsel was overruled
in part when the Supreme Court held in Nevada Department of Human Resources v.
Hibbs, 538 U.S. 721 (2003), that the family-care provisions of the FMLA did abrogate
the states' Eleventh Amendment immunity. McKlintic argued that Hibbs should
extend to the self-care provisions of the FMLA as well, but after McKlintic filed this
appeal, we decided Miles v. Bellfontaine Habilitation Center, 481 F.3d 1106, 1107
(8th Cir. 2007) (per curiam), in which we held that the self-care provisions of the
FMLA did not abrogate the states' immunity.2 We are bound by the earlier decision
of a panel of our Court. South Dakota v. United States Dep't of Interior, 487 F.3d 548,
551 (8th Cir. 2007). Accordingly, we may not reconsider the question of whether the
Eleventh Amendment bars a suit against a state for violation of the self-care
provisions of the FMLA.

McKlintic further argues that the State waived its immunity to suit by offering
FMLA leave in its employee handbook. Specifically, he alleges in his complaint, "Mr.
McKlintic's request was in fact covered under the self-care provision of the Family and
Medical Leave Act as stated in the Missouri Circuit Courts Handbook." A state may
voluntarily waive its sovereign immunity from federal-court jurisdiction, but the
federal courts will only conclude that it has done so if the alleged waiver passes a
stringent test. College Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd.,
527 U.S. 666, 675 (1999). "Generally, we will find a waiver either if the State
voluntarily invokes our jurisdiction or else if the State makes a 'clear declaration' that
it intends to submit itself to [federal] jurisdiction." Id. at 675-76 (citations omitted).
A state does not waive its immunity from federal suit by consenting to suit in state
courts, by stating its intention to sue and be sued, or by authorizing suits against it in
"any court of competent jurisdiction." Id. at 676. Thus, a state's grant to an employee
of a substantive right with no mention of whether that right can be enforced against the
state in federal court does not effect a waiver of Eleventh Amendment immunity.

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http://www.ca8.uscourts.gov/opndir/07/11/063568P.pdf