Nicholas v. AG

2007 UT 62
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Lynn Nicholas, No. 20060297
Plaintiff and Appellant,
v.
F I L E D
Attorney General, State of Utah,
Defendant and Appellee. August 14, 2007
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Third District, Salt Lake
The Honorable Sheila K. McCleve
No. 050909664
Attorneys: Mary J. Woodhead, Salt Lake City, for plaintiff
Mark L. Shurtleff, Att’y Gen., Brent A. Burnett,
David V. Pena, Asst. Att’ys Gen., Salt Lake City,
for defendant
Benson L. Hathaway, Stephen W. Geary, Salt Lake City,
for amicus Utah Public Employees Association
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WILKINS, Associate Chief Justice:
¶1 Lynn Nicholas appeals the decision of the district
court, which granted the State’s motion to dismiss her complaint
against her former employer, the Attorney General of the State of
Utah. The question presented on appeal is whether Congress
validly abrogated state sovereign immunity when it passed the
self-care provision of the Family Medical Leave Act (“FMLA”) such
that the State of Utah can be sued for money damages by an
employee for violations of the Act. We conclude that the self-
care provision of the FMLA is not a valid abrogation of state
immunity. We accordingly affirm the decision of the district
court.
BACKGROUND
¶2 Ms. Nicholas was an Assistant Attorney General in the
Office of the Utah Attorney General when her daughter-in-law died
unexpectedly following childbirth. Ms. Nicholas was subsequently
diagnosed with post-traumatic stress disorder and, over the
course of several months, worked a reduced schedule and took

1 Because neither the death of a daughter-in-law nor the
assistance of a healthy adult child qualifies for family-care
leave, Ms. Nicholas could only qualify for leave under the self-
care provision of the FMLA.
2 The State disputes the fact that it placed impediments in
the way of Ms. Nicholas’ return to work. However, because the
case is before this court from a trial court’s grant of a motion
to dismiss, we interpret the facts in the light most favorable to
the non-moving party, in this case, Ms. Nicholas.
3 Foutz v. City of S. Jordan, 2004 UT 75, ¶ 8, 100 P.3d
1171.
4 29 U.S.C. § 2612(a)(1)(A).
No. 20060297 2
several leaves of absence to deal with her own illness and to
help support her son. These leaves were classified by the
Attorney General’s Office as family medical leave.1
¶3 According to Ms. Nicholas, at the end of her leave, the
Office of the Attorney General actively discouraged her from
coming back to work by placing numerous impediments in the way of
her return. Due in part to the conduct of her supervisors, Ms.
Nicholas experienced a deterioration of her condition and took
disability retirement.2
¶4 Ms. Nicholas commenced this action by filing a
complaint. The complaint alleged that the Attorney General
interfered with her rights under the FMLA. The State filed a
motion to dismiss, claiming immunity. After briefing and
argument, the trial court granted the motion to dismiss. This
appeal followed.
ANALYSIS
¶5 This court reviews the trial court’s grant of a motion
to dismiss for correctness, giving no deference to the
determination of the court below.3
¶6 The FMLA authorizes qualified employees to take leave
from their jobs in certain circumstances. The first three of
four categories of eligible leave, known as the “family-care
provisions,” relate to the care of family members, such as the
birth and care of a child;4 adoption of or foster care of a

5 Id. § 2612(a)(1)(B).
6 Id. § 2612(a)(1)(C).
7 Id. § 2612(a)(1)(D).
8 U.S. Const. amend. XI.
9 Touvell v. Ohio Dep’t of Mental Retardation &
Developmental Disabilities, 422 F.3d 392, 395 (6th Cir. 2005).
10 Id.
11 Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 726
(2003).
12 Touvell, 422 F.3d at 395.
3 No. 20060297
child;5 and care for a spouse, child, or parent who has a serious
health condition.6 The fourth and final category of the Act,
known as the “self-care provision,” is not directly related to
the care of family members, but rather allows leave due to “a
serious health condition that makes the employee unable to
perform the functions of the position of [her employment].”7
¶7 The FMLA allows individuals to sue their employer
for money damages based on violations of the Act. This raises
Eleventh Amendment concerns when the employer is a state. The
Eleventh Amendment to the United States Constitution8 recognizes
that states have sovereign immunity that “deprives [courts] of
jurisdiction to entertain a suit brought by an individual against
a nonconsenting State.”9
¶8 Congress may abrogate Eleventh Amendment state immunity
if “it (1) makes its intention to abrogate unmistakably clear in
the language of the statute, and (2) acts pursuant to a valid
exercise of its power under section 5 of the Fourteenth
Amendment.”10 The United States Supreme Court has concluded that
the clarity of Congress’ intent to abrogate state sovereign
immunity with regard to the provisions of the FMLA is “not fairly
debatable.”11 Therefore, this case turns on whether Congress
acted within its constitutional authority, under section 5 of the
Fourteenth Amendment, when it sought to abrogate the states’
immunity under the self-care provision of the FMLA.
¶9 “It remains the province of the courts . . . to
determine the Fourteenth Amendment’s substantive meaning,”12 and
whether the FMLA is valid under the Fourteenth Amendment has been

13 Brockman v. Wyo. Dep’t of Family Servs., 342 F.3d 1159,
1165 n.3 (10th Cir. 2003).
14 538 U.S. at 725.
15 Id. at 728.
16 Id. at 740.
17 Touvell, 422 F.3d at 400.
18 Id.; see also Toeller v. Wis. Dep’t of Corr., 461 F.3d
871, 879 (7th Cir. 2006); Brockman, 342 F.3d at 1165 n.3.
No. 20060297 4
seriously questioned by the courts, particularly in connection
with the self-care provision of the Act. As the Tenth Circuit
Court of Appeals noted, “[A]t least seven other circuits
[including ours] have held that either [the self-care provision]
alone or the entire FMLA violates sovereign immunity.”13
¶10 In Nevada Department of Human Resources v. Hibbs, the
United States Supreme Court set out to resolve “the question
whether an individual may sue a State for money damages in
federal court for violation of § 2612(a)(1)(C).”14 In a deeply
divided decision, the Court held that the family-care provisions
of the FMLA were intended by Congress to protect women from
gender-based discrimination in the workplace as guaranteed by the
Fourteenth Amendment.15 The Court concluded that Congress had
validly abrogated states’ immunity under section 2612(a)(1)(C),
one of the family-care provisions.16 Hibbs did not, however,
resolve whether the self-care provision of the FMLA is a valid
abrogation of states’ sovereign immunity.
¶11 Since the Hibbs decision, several courts have been
presented with the question of whether the self-care provision of
the FMLA is constitutional. The vast majority of courts have
concluded that although the family-care provisions of the FMLA
are valid under Hibbs, “the self-care provision of the FMLA is
unconstitutional insofar as it purports to abrogate state
sovereign immunity.”17 For example, the Sixth, Seventh, and
Tenth Circuits have all concluded that, in spite of Hibbs, the
self-care provision is invalid.18 The Tenth Circuit noted that
“at least seven other circuits have held that either subsection
(D) alone or the entire FMLA violates sovereign immunity. Some
of these decisions have been overruled by Hibbs with respect to
subsection (C), but the invalidation of the self-care provisions

19 Brockman, 342 F.3d at 1165 n.3.
20 No. 02-1998, 2003 U.S. App. LEXIS 15068 (4th Cir. July
30, 2003).
21 Touvell, 422 F.3d at 400 n.2.
22 Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 736
(2003).
23 Id. at 735, 737.
24 Touvell, 422 F.3d at 399.
5 No. 20060297
in subsection (D) stands.”19 In fact, it appears that the only
case that has held that the self-care provision of the FMLA is
valid is the Fourth Circuit’s unpublished per curiam decision in
Montgomery v. Maryland.20 However, in Touvell, in concluding
that the self-care provision is invalid, the Sixth Circuit noted
that the Fourth Circuit’s decision in Montgomery “gave no
explanation for [its conclusion], and we do not consider it
persuasive.”21 We agree.
¶12 We also agree with those courts that have concluded
that the self-care provision of the FMLA is unconstitutional and
an invalid attempt to abrogate states’ Eleventh Amendment
immunity.
¶13 Hibbs premised its holding that the family-care
provisions of the Act validly abrogate state sovereign immunity
on the heightened level of scrutiny afforded gender
discrimination.22 Hibbs concluded that “the States’ record of
unconstitutional participation in, and fostering of, gender-based
discrimination” justifies “Congress’ chosen remedy, the family-
care leave provision of the FMLA.”23
¶14 Whether the self-care provision was motivated by a
concern about gender discrimination is unclear. On one hand, the
Sixth Circuit has stated that “the self-care provision was not
motivated by a concern [about] gender discrimination, but rather
by a desire to alleviate the economic burdens to employees and
their families of illness-related job-loss, and to prevent
discrimination against those with serious health problems.”24
Additionally, while gender discrimination is afforded a
heightened degree of scrutiny, Congress’ stated purposes in
passing the self-care provision are afforded no such enhanced
review.

25 Hibbs, 538 U.S. at 735 (quoting Kimel v. Fla. Bd. of
Regents, 528 U.S. 62, 90 (2000)).
26 Touvell, 422 F.3d at 402.
27 It has been noted that pregnancy discrimination may
implicate a higher level of constitutional scrutiny than
disability discrimination and hence require a different analysis.
Toeller, 461 F.3d at 879.
No. 20060297 6
¶15 The United States Supreme Court has made clear that
discrimination against the disabled does not provide a sufficient
basis for a congressional abrogation of states’ Eleventh
Amendment immunity absent a showing of “not just the existence of
age- or disability-based state decisions, but a ‘widespread
pattern’ of irrational reliance on such criteria.”25 Congress
made no such showing in enacting the self-care provision. In
fact, “Congress adduced no evidence of a pattern of
discrimination on the part of the states regarding leave for
personal medical reasons.”26
¶16 Having failed to establish the required relationship
between the self-care provision and prevention of gender
discrimination, and also having failed to identify a widespread
pattern of state discrimination against the disabled, Congress
failed to properly support the enactment of the self-care
provision of the FMLA. Accordingly, the provision violates the
states’ Eleventh Amendment sovereign immunity protection and is
invalid.
¶17 This case illustrates the type of gender-neutral
condition for which self-care leave is often taken. Ms. Nicholas
was diagnosed with post-traumatic stress disorder, requiring her
to take extensive leave from work. Ms. Nicholas’ leave was not
required due to her status as a woman.27 She suffered from an
illness, one that does not discriminate based on gender. As
noted by the Sixth Circuit Court of Appeals:
Recent studies . . . indicate that men and
women are out on medical leave approximately
equally. Men workers experience an average
of 4.9 days of work loss due to illness or
injury per year, while women workers
experience 5.1 days per year. The evidence
also suggests that the incidence of serious
medical conditions that would be covered by
medical leave under the bill is virtually the
same for men and women. Employers will find

28 Touvell, 422 F.3d at 402 (quoting H.R. Rep. No. 101-
28(I), at 15 (1989)).
29 Although we conclude that the self-care provision is not
a valid abrogation of state immunity, that immunity “does not,
however, bar suits for money damages against an officer of the
state, nor does it bar claims for injunctive relief.” Brockman,
342 F.3d at 1165 (internal citations omitted).
7 No. 20060297
that women and men will take medical leave
with equal frequency.28
¶18 It seems that the great majority of requests for self-
care leave occur for the very reason Nicholas presents in this
case; that is, personal, short-term medical needs. There is no
evidence of record that women are more likely than men to have
this kind of medical need. Further, and most importantly,
Congress failed to show the necessary link between the self-care
provision of the FMLA and state discrimination.
CONCLUSION
¶19 We conclude that the self-care provision of the FMLA is
unconstitutional inasmuch as Congress attempts to abrogate state
sovereign immunity.29 Congress’ stated purpose in passing the
self-care provision of the FMLA was to protect the disabled
against discrimination. Because the provision is not clearly
directed at remedying past gender discrimination, Hibbs does not
apply. In addition, Congress failed to establish the requisite
history of state discrimination against the disabled necessary to
pass prophylactic legislation intended to curb such
discrimination. Accordingly, the provision cannot rest on
section 5 of the Fourteenth Amendment and is therefore invalid.
The State is immune from Nicholas’ suit for money damages.
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¶20 Judge Bench concurs in Associate Chief Justice Wilkins’
opinion.
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NEHRING, Justice, concurring in the result:
¶21 I join in the result announced by this court in Justice
Wilkins’ opinion. I write separately because I am convinced that
gender discrimination motivated Congress when it enacted the
Family Medical Leave Act’s self-care provision. See 29 U.S.C.
§ 2612(a)(1)(D) (2000). Two of my colleagues share this view,

No. 20060297 8
and on this point I speak for the court. I disagree with the
lead opinion’s defense of state sovereign immunity which is tied
to a misapprehension that Congress did not enact the self-care
provision in response to a concern about gender discrimination.
In my view, sovereign immunity insulates the State from
Ms. Nicholas’ claim brought under the self-care provision of the
Act only because Congress failed to complement its gender-based
statutory rationale for self care with evidence that states have
practiced gender-based discrimination related to self care.
¶22 Congress possesses expansive authority through the
Fourteenth Amendment to enact legislation that enforces the
provision’s substantive guarantees. See U.S. Const. amend. XIV,
§ 5. This power includes the ability to subject states to
private suits for monetary damages. For our purposes, the
exclusive leash on congressional power in this arena is the
requirement that a statute provide an appropriate remedy for an
identified constitutional violation and not merely “attempt to
substantively redefine the States’ legal obligations.” Kimel v.
Fla. Bd. of Regents, 528 U.S. 62, 88 (2000). A reviewing court
assessing the merits of a sovereign immunity challenge to the
validity of a federal statute must both identify the scope of the
constitutional right at issue and determine whether Congress
demonstrated a “pattern of constitutional violations on the part
of the States in this area.” Nev. Dep’t of Human Res. v. Hibbs,
538 U.S. 721, 729 (2003). Finally, a reviewing court must
consider whether the statute provides an appropriate remedy. Id.
¶23 To me, the relevant legislative history and statutory
language display unmistakable links between the Act’s self-help
provision and the right to be free from gender discrimination
with regard to unpaid leave, a permissible exercise of Fourteenth
Amendment congressional power. See, e.g., 29 U.S.C. § 2601(b)(4)
(expressing a desire to “minimize[] the potential for employment
discrimination on the basis of sex by ensuring generally that
leave is available for eligible medical reasons (including
maternity-related disability) . . . on a gender-neutral basis”).
The Act entitles a qualifying employee to a maximum of twelve
weeks of unpaid leave due to a serious health condition, id.
§ 2612(a)(1)(D), and features a complementary cause of action
against employers who might interfere with the exercise of that
right, id. §§ 2615(a)(1), 2617(a)(2). Congress considered the
term “serious health condition” to include “ongoing pregnancy,
miscarriages, complications or illnesses related to pregnancy,
such as severe morning sickness, the need for prenatal care,
childbirth and recovery from childbirth.” S. Rep. No. 103-3, at
29 (1993). Congress voiced its concern that pregnant women--who
are “generally under continuing medical supervision before
childbirth” and may require “several days off for severe morning

9 No. 20060297
sickness or other complications” or “additional time off during
the recovery period from childbirth”--may suffer from employment
discrimination. Id.; cf. id. at 29 (referencing the Pregnancy
Discrimination Act’s legislative history and discussing the
lengthy medical recovery period associated with even a normal
childbirth, “with a longer period where surgery is necessary or
other complications develop”). These expressions of
congressional intent regarding health conditions unique to women
make not fairly debatable that the self-help provisions of the
Act were motivated by a concern for gender discrimination.
¶24 Were this all that mattered, the Act would likely
displace the State’s sovereign immunity. But to lawfully
abrogate sovereign immunity, Congress must have compiled an
adequate record of discrimination by state employers. Congress
did not make this case. On this point, the lead opinion and I
are in full agreement, and that is enough to preserve sovereign
immunity and decide this case.
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¶25 Justice Durrant and Justice Parrish concur in Justice
Nehring’s opinion.
¶26 Having disqualified herself, Chief Justice Durham does
not participate herein; Court of Appeals Judge Russell W. Bench
sat.