TO: Richard Stokes, MTAS Human Resources Consultant
FROM: Sid Hemsley, MTAS Senior Law Consultant
DATE: November 2, 2005
RE: 11th Amendment Immunity
You have the following question: What is MTAS's position with respect to Touvell v. Ohio Department of Mental Retardation and Developmental Disabilities, 422 F.3d 392 (6th Cir. 2005). In that case, Touvell took leave under the FMLA for medical problems of her own ( "self-care."). She claimed that her employer, the State of Ohio, retaliated against her for taking the leave.
The U.S. Sixth Circuit Court of Appeals, whose ruling apply to Tennessee, held that the State of Ohio was immune from suit by Touvell under the Eleventh Amendment to the U.S. Constitution. The Eleventh Amendment provides as follows:
The judicial power of the United States shall not be construed to extend to any suit in law or in equity, commenced or prosecuted against one of the United States by the Citizens of another State, or by Citizens or Subjects of any Foreign State.
Congress has the power under the Fourteenth Amendment to the U.S. Constitution to abrogate the immunity of the state if it has made that intention unmistakably clear in the language of the statute at issue and other acts, said the court. It acknowledged that the U.S. Supreme Court had held in Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003)], that the FMLA had abrogated the immunity of states with respect to its family care provisions, but declared that case did not apply to the self-care provisions in the FMLA.
But we need go no further in the analysis of Touvell, because it has been repeatedly held by the U.S. Supreme Court, that state immunity under the Eleventh Amendment does not apply to the political subdivisions of a state, except in the rare circumstances when the political subdivision is acting as an agent of the state. [See Pennhurst State School & Hospital v Halderman, 465 U.S. 89 (1984); Mt. Healthy City School District v. Doyle, 429 U.S. 274 (1977); Lake County Estates, Inc. v. Tahoe Regional Planning Agency , 440 U.S. 291 (1979); Lincoln County v. Luning, 133 U.S. 529 (1890).]
The same rule has been announced by the U.S. Sixth Circuit Court of Appeals. In Hall v. Medical College of Ohio at Toledo, 742 F.2d 299 (6th Cir. 1984), it is said that:
When an action is brought against a public agency or institution, and/or the officials thereof, the application of the Eleventh Amendment turns on whether said agency or institution can be characterized as an arm or alter ego of the state, or whether it should be treated instead as a political subdivision of the state. [Citations omitted.] Municipalities, counties and other political subdivisions (e.g., public school districts) do not partake of the state's Eleventh Amendment immunity. [Citations omitted.] [At 301]
For the above reasons, it does not appear to me that Tennessee municipalities are affected by Touvell. In fact, even if the U.S. Supreme Court overturns Touvell and holds that Congress did intend to abrogate the Eleventh Amendment immunity of states with respect to FMLA's self-care provisions, that result would not appear to me to change FMLA's application to local governments.