Title Chittister v. Department of Community and Economic Development
Date 2000
By Alito
Subject Misc
Contents
Page 1
96 of 238 DOCUMENTS
DAVID D. CHITTISTER, Appellant v. DEPARTMENT OF COMMUNITY AND ECONOMIC DEVELOPMENT; DAVID BLACK; LARRY SEGAL
No. 00-3140
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
226 F.3d 223; 2000 U.S. App. LEXIS 22229; 141 Lab. Cas. (CCH) P34,118; 78 Empl. Prac. Dec. (CCH) P40,169; 25 Employee Benefits Cas. (BNA) 1025; 6 Wage & Hour Cas. 2d (BNA)
545
June 30, 2000, Argued
August 30, 2000, Filed
PRIOR HISTORY: **1 ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA. (Dist. Court No. 97-cv--01946). District Court Judge: Sylvia H. Rambo.
DISPOSITION: Affirmed.
CASE SUMMARY:
PROCEDURAL POSTURE: Plaintiff appealed from the judgment of the United States District Court for the Middle District of Pennsylvania, which granted judgment as a matter of law to defendant employer, a state agency, in plaintiff's action under the Family and Medical Leave Act of 1993, 29 U.S.C.S. §§ 2601-54.
OVERVIEW: Plaintiff brought an action under the
Family and Medical Leave Act of 1993 (FMLA), 29
U.S.C.S. §§ 2601-54, alleging that defendant employer, a state agency, improperly denied him leave and fired him while he was on approved, paid sick leave. Although a jury found in plaintiff's favor, the lower court granted judgment as a matter of law to defendant, holding that plaintiff's FMLA claim against defendant was barred by U.S. Const. amend. XI. Plaintiff appealed, and the court affirmed. Defendant was permitted to raise the immu- nity claim for the first time on appeal. Pennsylvania had sovereign immunity under Pa. Const. art. I, § 11, and did not consent to suit. Congress clearly intended to abrogate states' immunity when it enacted the FMLA, and based its authority to do so on its power to enforce the Equal Protection Clause of U.S. Const. amend. XIV. Congress, however, failed to make any finding concerning the exis- tence in public employment of personal sick leave prac- tices that amounted to intentional gender discrimination in violation of the Equal Protection Clause. The FMLA
provisions at issue were not a valid exercise of Congress's power.
OUTCOME: Judgment was affirmed, because the pro- visions of the Family and Medical Leave Act concern- ing personal sick leave practices were not a valid exer- cise of Congress's power, and did not abrogate the state's sovereign immunity.
LexisNexis(R) Headnotes
Civil Procedure > State & Federal Interrelationships > Amendment 11
Constitutional Law > State Autonomy
HN1 Under U.S. Const. amend. XI, a plaintiff other than the United States or a state may not sue a state in federal court without the latter state's consent unless Congress ab- rogates the state's immunity under U.S. Const. amend. XI pursuant to a constitutional provision granting Congress that power. U.S. Const. amend. XIV confers such power, but U.S. Const. art. I does not.
Pensions & Benefits Law > Family & Medical Leave Act
Labor & Employment Law > Leaves of Absence > Family
& Medical Leave
HN2 The Family and Medical Leave Act of 1993, 29
U.S.C.S. §§ 2601-54, requires an employer to provide 12 workweeks of leave because of the birth of a son or daugh- ter of the employee and in order to care for such son or daughter; because of the placement of a son or daughter with the employee for adoption or foster care; in order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition; and because of a serious health condition that makes the employee unable to perform the functions of the position of such employee. 29 U.S.C.S.
§ 2612(a)(1).
226 F.3d 223, *; 2000 U.S. App. LEXIS 22229, **1;
141 Lab. Cas. (CCH) P34,118; 78 Empl. Prac. Dec. (CCH) P40,169
Page 2
Pensions & Benefits Law > Family & Medical Leave Act
Labor & Employment Law > Leaves of Absence > Family
& Medical Leave
HN3 The Family and Medical Leave Act of 1993 (Act),
29 U.S.C.S. §§ 2601-54, makes it unlawful for any em- ployer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under the Act. 29 U.S.C.S. § 2615(a)(1). The Act also grants state employees, among others, a private right of action against their employers for violations of the Act. 29 U.S.C.S. §
2617(a)(2)(A).
Governments > State & Territorial Governments > Claims By & Against
Constitutional Law > State Autonomy
HN4 The Pennsylvania Constitution provides that the Commonwealth may be sued only in such manner, in such courts, and in such cases as the legislature may by law direct. Pa. Const. art. I, § 11. The Pennsylvania leg- islature has directed that the Commonwealth retains its sovereign immunity. 1 Pa. Cons. Stat. Ann. § 2310 (West Supp. 2000).
Governments > State & Territorial Governments > Claims By & Against
Constitutional Law > State Autonomy
HN5 See 1 Pa. Cons. Stat. Ann. § 2310 (West Supp.
2000).
Governments > State & Territorial Governments > Claims By & Against
Constitutional Law > State Autonomy
HN6 The Commonwealth of Pennsylvania has waived immunity only for certain specified tort claims in suits for damages in state court. 42 Pa. Cons. Stat. Ann. §
8522. The Supreme Court of Pennsylvania has held that the Commonwealth's immunity is otherwise intact. The Pennsylvania General Assembly further provided that nothing contained in the subchapter including § 8522 shall be construed to waive the immunity of the Commonwealth from suit in federal courts guaranteed by U.S. Const. amend. XI. 42 Pa. Cons. Stat. Ann. § 8521(b). Thus, Pennsylvania has not consented to suit in federal court. Governments > State & Territorial Governments > Claims By & Against
Constitutional Law > State Autonomy
HN7 Waiver of immunity under U.S. Const. amend. XI is found only where the state voluntarily invokes fed- eral jurisdiction or where the state makes a clear declara- tion that it intends to submit itself to federal jurisdiction. Because only a command of the Pennsylvania General Assembly is sufficient under Pennsylvania law to waive the Commonwealth's immunity, an administrative policy cannot amount to a "clear declaration" that Pennsylvania intends to submit itself to federal jurisdiction.
Civil Procedure > State & Federal Interrelationships > Amendment 11
Constitutional Law > State Autonomy
HN8 Immunity under U.S. Const. amend. XI may be raised for the first time on appeal even if the state de- fended the merits of the suit in the district court.
Civil Procedure > State & Federal Interrelationships > Amendment 11
Constitutional Law > State Autonomy
HN9 Where a state has not consented to suit, it may be sued in federal court only if Congress validly abrogated its immunity under U.S. Const. amend. XI. In order to ab- rogate immunity under U.S. Const. amend. XI, Congress must make its intention to do so unmistakably clear in the language of the statute.
Pensions & Benefits Law > Family & Medical Leave Act
Labor & Employment Law > Leaves of Absence > Family
& Medical Leave
HN10 See 29 U.S.C.S. § 2617(a)(1)(A).
Pensions & Benefits Law > Family & Medical Leave Act
Labor & Employment Law > Leaves of Absence > Family
& Medical Leave
HN11 See 29 U.S.C.S. § 2617(a)(2)(A).
Pensions & Benefits Law > Family & Medical Leave Act
Labor & Employment Law > Leaves of Absence > Family
& Medical Leave
HN12 The term "public agency," with respect to an ac- tion against an employer under the Family and Medical Leave Act of 1993, 29 U.S.C.S. §§ 2601-54, includes the government of a state or political subdivision thereof and any agency of a state, or a political subdivision of a state.
29 U.S.C.S. § 203(x).
Pensions & Benefits Law > Family & Medical Leave Act
Labor & Employment Law > Leaves of Absence > Family
& Medical Leave
HN13 The Family and Medical Leave Act of 1993, 29
U.S.C.S. §§ 2601-54, attempts to abrogate the states' im- munity under U.S. Const. amend. XI.
Civil Procedure > State & Federal Interrelationships > Amendment 11
Constitutional Law > State Autonomy
HN14 Congress has the authority to abrogate immunity under U.S. Const. amend. XI pursuant to its power to enforce U.S. Const. amend. XIV. In order to invoke this, Congress must identify conduct transgressing the sub- stantive provisions of U.S. Const. amend. XIV, and must tailor its legislative scheme to remedying or preventing such conduct.
Pensions & Benefits Law > Family & Medical Leave Act
Labor & Employment Law > Leaves of Absence > Family
226 F.3d 223, *; 2000 U.S. App. LEXIS 22229, **1;
141 Lab. Cas. (CCH) P34,118; 78 Empl. Prac. Dec. (CCH) P40,169
Page 3
& Medical Leave
HN15 In enacting the Family and Medical Leave Act of 1993, 29 U.S.C.S. §§ 2601-54, Congress identified the conduct transgressing U.S. Const. amend. XIV as the po- tential for employment discrimination on the basis of sex in violation of the Equal Protection Clause. 29 U.S.C.S.
§ 2601(b)(4).
Labor & Employment Law > Leaves of Absence > Family
& Medical Leave
Constitutional Law > State Autonomy
HN16 In order for an exercise of Congress's enforce- ment power under U.S. Const. amend. XIV to be sus- tained, there must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. With respect to the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C.S.
§§ 2601-54, consequently, there must be congruence and proportionality between the potential for employment dis- crimination on the basis of sex and the FMLA's provision of 12 weeks of leave to eligible employees.
Pensions & Benefits Law > Family & Medical Leave Act Constitutional Law > Equal Protection > Scope of Protection
HN17 In enacting the Family and Medical Leave Act of
1993, 29 U.S.C.S. §§ 2601-54, Congress explicitly relied on the Equal Protection Clause of U.S. Const. amend. XIV. 29 U.S.C.S. § 2601(b)(4).
Pensions & Benefits Law > Family & Medical Leave Act
Labor & Employment Law > Leaves of Absence > Family
& Medical Leave
HN18 In enacting the Family and Medical Leave Act of
1993, 29 U.S.C.S. §§ 2601-54, Congress found, among other things, that it is important that fathers and mothers be able to participate in early childrearing and the care of family members who have serious health conditions, that the lack of employment policies to accommodate working parents can force individuals to choose between job se- curity and parenting, that there is inadequate job security for persons who might take medical leave, and that the primary responsibility for family caretaking often falls on women and has a greater effect on their work than it does on men. 29 U.S.C.S. § 2601(a)(2)-(5). Notably absent is any finding concerning the existence, much less the prevalence, in public employment of personal sick leave practices that amounted to intentional gender discrimina- tion in violation of the Equal Protection Clause of U.S. Const. amend. XIV.
Constitutional Law > Equal Protection > Scope of
Protection
Labor & Employment Law > Leaves of Absence > Family
& Medical Leave
Constitutional Law > State Autonomy
HN19 Unlike the Equal Protection Clause of U.S. Const. amend. XIV, which the Family and Medical Leave Act of
1993 (FMLA), 29 U.S.C.S. §§ 2601-54, is said to enforce, the FMLA does much more than require nondiscrimina- tory sick leave practices; it creates a substantive entitle- ment to sick leave. This requirement is disproportionate to any unconstitutional conduct that conceivably could be targeted by the FMLA. It is so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, un- constitutional behavior. For these reasons, the legislative scheme cannot be said to be congruent or proportional to any identified constitutional harm, and it cannot be said to be tailored to preventing any such harm. Accordingly, FMLA provisions concerning sick leave do not represent a valid exercise of Congress's power to enforce U.S. Const. amend. XIV and the FMLA does not abrogate U.S. Const. amend. XI immunity.
COUNSEL: Andrew J. Ostrowski (argued), Harrisburg, PA, Counsel for Appellants.
D. Michael Fisher, Attorney General, J. Bart DeLone, Deputy Attorney General, Calvin R. Koons, Senior Deputy Attorney General, John G. Knorr, III, Chief Deputy Attorney General (argued), Office of Attorney General, Appellate Litigation Section, Harrisburg, PA, Counsel for Appellees.
JUDGES: Before: ALITO and McKEE, Circuit Judges, and FULLAM, Senior District Judge. *
* The Honorable John P. Fullam, United States District Court for the Eastern District of Pennsylvania, sitting by designation.
OPINIONBY: ALITO
OPINION:
OPINION OF THE COURT
*225 ALITO, Circuit Judge:
In this case, we must decide whether Congress validly abrogated the states' Eleventh Amendment immunity when it enacted provisions of the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. §§ 2601-54, that require a broad class of employers, including states, to provide their employees with 12 weeks of leave "be- cause of a serious health condition **2 that makes the employee unable to perform the functions of the position of such employee" and that permit employees to sue in federal court for violations of the Act. We agree with the District Court in this case and with the other Courts of
226 F.3d 223, *225; 2000 U.S. App. LEXIS 22229, **2;
141 Lab. Cas. (CCH) P34,118; 78 Empl. Prac. Dec. (CCH) P40,169
Page 4
Appeals that have considered this question that Congress did not validly abrogate the states' Eleventh Amendment immunity when it enacted these provisions. See Hale v. Mann, 219 F.3d 61, 2000 WL 675209, at *7 (2d Cir. 2000); Garrett v. University of Alabama at Birmingham Board of Trustees, 193 F.3d 1214, 1219 (11th Cir. 1999), cert. granted on different issue, 120 S. Ct. 1669 (2000). We therefore affirm the decision of the District Court.
I.
On February 14, 1997, David D. Chittister, an em- ployee of the Pennsylvania Department of Community and Economic Development, requested sick leave. He was granted leave through May 2, 1997. For *226 rea- sons not relevant to this appeal, approximately ten weeks later, on April 21, 1997, Chittister's leave was revoked, and he was fired.
Chittister then filed this action in federal district court against the Department and two state officials. Chittister asserted a claim **3 under the FMLA, alleging that the defendants had improperly denied him leave and had fired him while he was on approved, paid sick leave. He also asserted a claim under 42 U.S.C. § 1983 on the ground that the defendants had retaliated against him for the exercise of his First Amendment rights. The District Court granted summary judgment for the defendants on Chittister's retaliation claim, and Chittister took a separate appeal from that order. n1 A jury trial on the FMLA claim resulted in a verdict in Chittister's favor, but the District Court granted judgment as a matter of law in favor of the Department, holding that Chittister's FMLA claim against the Department was barred by the Eleventh Amendment. Chittister then took this appeal.
n1 We resolve that appeal, No. 99-3425, in a separate opinion.
II.
HN1 Under the Eleventh Amendment, a plaintiff other than the United States or a state may not sue a state in federal court without the latter state's consent unless Congress abrogates the **4 state's Eleventh Amendment immunity pursuant to a constitutional provi- sion granting Congress that power. See Kimel v. Florida Board of Regents, 528 U.S. 62, 120 S. Ct. 631, 643-44,
145 L. Ed. 2d 522 (2000); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 59, 134 L. Ed. 2d 252, 116 S. Ct.
1114 (1996). The Fourteenth Amendment confers such power, Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 49 L. Ed. 2d 614, 96 S. Ct. 2666 (1976), but Article I of the Constitution does not. See Seminole Tribe, 517 U.S. at
63-73.
HN2 The FMLA requires an employer to provide
"12 workweeks of leave"
(A) Because of the birth of a son or daughter of the employee and in order to care for such son or daughter.
(B) Because of the placement of a son or daughter with the employee for adoption or foster care.
(C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.
(D) Because of a serious health condi- tion that makes the employee unable to per- form the functions of the position of such employee.
29 U.S.C. § 2612(a)(1) (emphasis **5 added). HN3 The Act makes it unlawful for "any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right" provided under the Act. 29 U.S.C. §
2615(a)(1). The Act also grants state employees, among others, a private right of action against their employers for violations of the Act. See 29 U.S.C. § 2617(a)(2)(A). As noted, Chittister sued his employer, the Pennsylvania Department of Community and Economic Development, alleging that the Department's "termination of his em- ployment without granting him the leave to which he is entitled was a violation of the FMLA." Complaint at 5. It is not disputed that the Department is an arm of the Commonwealth and is within the protection of the Eleventh Amendment. Moreover, although Chittister ar- gues otherwise, it is clear that Pennsylvania has not con- sented to suit under the FMLA. HN4 The Pennsylvania Constitution provides that the Commonwealth may be sued only "in such manner, in such courts and in such cases as the Legislature may by law direct." Pa. Const. art. I, § 11 (emphasis added). The legislature has directed that the Commonwealth retains its **6 sovereign im- munity. See 1 Pa. Cons. Stat. Ann. § 2310 (West Supp.
2000) HN5 ("It is hereby declared to be the intent of the General Assembly that the Commonwealth *227
. . . shall continue to enjoy sovereign immunity and of- ficial immunity and remain immune from suit except as the General Assembly shall specifically waive the immu- nity."). HN6 It has waived immunity only for certain specified tort claims in suits for damages in state court. See 42 Pa. Cons. Stat. Ann. § 8522. The Supreme Court of Pennsylvania has held that the Commonwealth's immu- nity is otherwise intact. See Dean v. Commonwealth, 561
Pa. 503, 751 A.2d 1130, 1132 (Pa. 2000). The General
226 F.3d 223, *227; 2000 U.S. App. LEXIS 22229, **6;
141 Lab. Cas. (CCH) P34,118; 78 Empl. Prac. Dec. (CCH) P40,169
Page 5
Assembly has further provided that "nothing contained in this subchapter including § 8522 shall be construed to waive the immunity of the Commonwealth from suit in Federal courts guaranteed by the Eleventh Amendment of the Constitution of the United States." § 8521(b). Thus, we have held that Pennsylvania has not consented to suit in federal court. See Wheeling & Lake Erie Ry. v. Public Util. Comm'n, 141 F.3d 88, 91 (3d Cir. 1998); Laskaris v. Thornburgh, 661 F.2d 23, 25 (3d Cir. 1981).
Chittister asserts that Pennsylvania **7 consented to suit because an administrative policy "instructs the Commonwealth to post the notices required by the FMLA and its implementing regulations and specifically instructs the employees of their right to file suit to enforce its pro- visions." Appellant Br. at 29. However, HN7 waiver of Eleventh Amendment immunity is found only where the state "voluntarily invokes" federal jurisdiction or where the state "makes a clear declaration that it intends to sub- mit itself" to federal jurisdiction. College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 144
L. Ed. 2d 605, 119 S. Ct. 2219, 2226 (1999) (quotation marks omitted). Because only a command of the General Assembly is sufficient under Pennsylvania law to waive the Commonwealth's immunity, an administrative policy cannot amount to a "clear declaration" that Pennsylvania intends to submit itself to federal jurisdiction.
Chittister also asserts that Pennsylvania gave con- structive consent to his suit by defending it on the merits and raising the issue of its immunity for the first time on appeal. It is settled, however, that HN8 Eleventh Amendment immunity may be raised for the first time on appeal even if the state **8 defended the merits of the suit in the district court. See Edelman v. Jordan, 415 U.S.
651, 677-78, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974); Wheeling & Lake Erie Ry., 141 F.3d at 91; College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 131 F.3d 353, 365 (3d Cir. 1997) ("Because the im- munity issue sufficiently partakes of the nature of a juris- dictional bar, it is an issue that may be raised any time during the pendency of the case. Merely because a state appears and offers defenses on the merits of the case, it does not automatically waive Eleventh Amendment im- munity.") (citations and quotation marks omitted). Thus, Chittister's contention that the Commonwealth consented to suit under the FMLA is without merit.
III.
HN9 Because the Commonwealth has not consented to suit, it may be sued in federal court only if Congress validly abrogated its Eleventh Amendment immunity. In order to abrogate Eleventh Amendment immunity, Congress must make its intention to do so "unmistak- ably clear in the language of the statute." Kimel, 120 S.
Ct. at 640. The FMLA provides that HN10 "any em- ployer who violates section 2615 of this title shall **9 be liable to any eligible employee affected for damages
. . . ." 29 U.S.C. § 2617(a)(1)(A). The Act then grants a private right of action to eligible employees: HN11
"An action to recover damages or equitable relief . . . may be maintained against any employer (including a public agency) . . . by any one or more employees for and in behalf of the employees." See 29 U.S.C. § 2617(a)(2)(A)
*228 (emphasis added). n2
n2 HN12 The term "public agency" includes
"the government of a State or political subdivision thereof" and "any agency of . . . a State, or a political subdivision of a State." 29 U.S.C. § 203(x).
The language in the Age Discrimination in Employment Act that provides for a private right of ac- tion is almost identical to the enforcement language in the FMLA. See 29 U.S.C. § 216 (b) ("An action to recover the liability under the ADEA prescribed in either of the preceding sentences may be maintained against any em- ployer **10 (including a public agency) . . . by any one or more employees for and in behalf of himself or themselves . . . .") (emphasis added). In Kimel, the Court held that this language in the ADEA represented an "un- mistakably clear" attempt by Congress to abrogate the states' Eleventh Amendment immunity. Kimel, 120 S. Ct. at 640. We therefore hold that HN13 the FMLA attempts to abrogate the states' Eleventh Amendment immunity.
IV.
As noted, HN14 Congress has the authority to ab- rogate Eleventh Amendment immunity pursuant to its power to enforce the Fourteenth Amendment. See Kimel,
120 S. Ct. at 643-44. In order to invoke this, Congress
"must identify conduct transgressing the Fourteenth Amendment's substantive provisions, and must tailor its legislative scheme to remedying or preventing such con- duct." Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627, 119 S. Ct. 2199,
2207, 144 L. Ed. 2d 575 (1999). Here, HN15 Congress has identified the conduct transgressing the Fourteenth Amendment as "the potential for employment discrim- ination on the basis of sex" in violation of the Equal Protection Clause. n3 29 U.S.C. § 2601 **11 (b)(4). In City of Boerne v. Flores, 521 U.S. 507, 117 S. Ct. 2157,
138 L. Ed. 2d 624 (1997), the Court held that, HN16 in order for an exercise of Congress's enforcement power under the Fourteenth Amendment to be sustained, "there must be a congruence and proportionality between the in- jury to be prevented or remedied and the means adopted to that end." See 117 S. Ct. at 2164. In the present case,
226 F.3d 223, *228; 2000 U.S. App. LEXIS 22229, **11;
141 Lab. Cas. (CCH) P34,118; 78 Empl. Prac. Dec. (CCH) P40,169
Page 6
consequently, there must be "congruence and proportion- ality" between "the potential for employment discrimina- tion on the basis of sex" and the FMLA's provision of 12 weeks of leave to eligible employees.
n3 Chittister asserts that the abrogation of Pennsylvania's immunity is a valid exercise of Congress's power to enforce the guarantees of substantive due process under the Fourteenth Amendment. In Florida Prepaid, the Court refused to entertain an alternative basis for the legislation in question there because "Congress was so explicit about invoking its authority under Article I and its authority . . . under the Fourteenth Amendment." Florida Prepaid Postsecondary Educ. Expense Bd.,
119 S. Ct. at 2208 n.7. HN17 In enacting the FMLA, Congress explicitly relied on the Equal Protection Clause of the Fourteenth Amendment. See 29 U.S.C. § 2601(b)(4). We, therefore, decline to consider the Due Process Clause as an alternative basis for the FMLA.
**12
It is apparent that this standard cannot be met here.
HN18 In enacting the FMLA, Congress found, among other things, that it is "important . . . that fathers and mothers be able to participate in early childrearing and the care of family members who have serious health con- ditions," 29 U.S.C. § 2601(a)(2), that the "lack of employ- ment policies to accommodate working parents can force individuals to choose between job security and parent- ing," § 2601(a)(3), that "there is inadequate job security" for persons who might take medical leave, § 2601(a)(4), and that "the primary responsibility for family caretaking often falls on women" and has a greater effect on their work than it does on men, § 2601(a)(5). Notably absent is any finding concerning the existence, much less the prevalence, in public employment of personal sick leave
practices that amounted to intentional gender discrimina- tion in violation *229 of the Equal Protection Clause. For example, Congress did not find that public employ- ers refused to permit as much sick leave as the FMLA mandates with the intent of disadvantaging employees of one gender. (Indeed, it is doubtful that a practice of al- lowing less sick **13 leave than the FMLA requires would even have a disparate impact on men and women.). Nor are we aware of any substantial evidence of such violations in the legislative record.
Moreover, even if there were relevant findings or ev- idence, the FMLA provisions at issue here would not be congruent or proportional. HN19 Unlike the Equal Protection Clause, which the FMLA is said to enforce, the FMLA does much more than require nondiscriminatory sick leave practices; it creates a substantive entitlement to sick leave. This requirement is "disproportionate to any unconstitutional conduct that conceivably could be targeted by the Act." Kimel, 120 S. Ct. at 645. It is "so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior." City of Boerne, 117 S. Ct. at 2170. For these reasons, the legisla- tive scheme cannot be said to be congruent or proportional to any identified constitutional harm, and it cannot be said to be tailored to preventing any such harm. Accordingly, we hold that the FMLA provisions at issue here do not represent a valid exercise of Congress's power to enforce
**14 the Fourteenth Amendment and that the FMLA does not abrogate Eleventh Amendment immunity. Cf. Lavia v. Commonwealth of Pennsylvania, Department of Corrections, 224 F.3d 190, 2000 U.S. App. LEXIS 18989
(3d Cir., 2000) (Title I of ADA). V.
For the reasons stated above, the judgment of the
District Court is affirmed.
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