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McKlintic v. 36th Judicial Circuit Court: EMPLOYMENT LAW | 11TH AMENDMENT - FMLA self-care parts don't abrogate states' 11th Amendment immunity

1The Honorable Lewis M. Blanton, United States Magistrate Judge for the
Eastern District of Missouri. The parties consented to have a Magistrate Judge
conduct the proceedings in the district court. See 28 U.S.C. 636(c)(1).
United States Court of Appeals
No. 06-3568
Larry McKlintic, **
Plaintiff/Appellant, *
v. * Appeal from the United States
* District Court for the Eastern
36th Judicial Circuit Court, Juvenile * District of Missouri.
Division, State of Missouri, employer; *
State of Missouri, employer, * [PUBLISHED]
Defendants/Appellees. *
Submitted: May 16, 2007
Filed: November 28, 2007
Before WOLLMAN, BRIGHT, and JOHN R. GIBSON, Circuit Judges.
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
2The only precedential opinions of circuit courts on the issue are unanimous in
holding that the FMLA self-care provisions did not abrogate the states' immunity.
Toeller v. Wis. Dep't of Corr., 461 F.3d 871, 873, 879 (7th Cir. 2006) (no abrogation
in the case at bar, but reserving question of whether FMLA abrogates state immunity
from claims of self-care in context of pregnancy); Touvell v. Ohio Dep't of Mental
Retardation & Developmental Disabilities, 422 F.3d 392, 405 (6th Cir. 2005), cert.
denied, 546 U.S. 1173 (2006); Brockman v. Wyo. Dep't of Family Servs., 342 F.3d
1159, 1165 (10th Cir. 2003); see also Bryant v. Miss. State Univ., 329 F. Supp. 2d
818, 827 (N.D. Miss. 2004); Nicholas v. Att'y Gen., P.3d, 2007 WL 2302093, at
*4 (Utah Aug. 14, 2007).
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.
We affirm the judgment of the district court.
BRIGHT, Circuit Judge, concurring.
I concur in the courts opinion. I agree that we are bound by this courts holding
in Miles v. Bellfontaine Habilitation Ctr., 481 F.3d 1106, 1107 (8th Cir. 2007) (holding
that the self-care provision of the Family and Medical Leave Act (FMLA) did not
abrogate the states Eleventh Amendment immunity). See also Toeller v. Wis. Dept
of Corr., 461 F.3d 871, 879-80 (7th Cir. 2006); Touvell v. Ohio Dept of Mental
Retardation & Developmental Disabilities, 422 F.3d 392, 405 (6th Cir. 2005);
Brockman v. Wyo. Dept of Family Servs., 342 F.3d 1159, 1165 (10th Cir. 2003). But
see Montgomery v. Md., 2003 WL 21752919, at *1 (4th Cir. July 30, 2003) (holding
that in light of Nev. Dept of Human Res. v. Hibbs, 538 U.S. 721 (2003), sovereign
immunity does not protect the states in FMLA actions).
I write separately to observe that an argument can be made that the self-care
provision of the FMLA permits a suit against the State. Such issue needs resolution
by the United States Supreme Court.


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