WASHINGTON – A federal appeals court has held that Maryland is immune from lawsuits under the Family Medical Leave Act, which guarantees employees an identical job to the one they left temporarily for medical reasons.
A three-judge panel of the 4th U.S. Circuit Court of Appeals said Wednesday that the state enjoys sovereign immunity from such suits, even though state attorneys withdrew that defense when the state was sued by an Eastern Correctional Institute worker.
“In no other context of law would that sort of strategy be tolerable,” said Deborah Jeon, an attorney for the American Civil Liberties Union of Maryland, which joined in the case. “In other contexts, if you make a mistake and don’t raise a defense, sorry, you’re out of luck.”
Officials in the Maryland Attorney General’s Office did not return calls Thursday to discuss the ruling.
The case began in September 1999, when Sheila Montgomery of Pocomoke took medical leave from her job as administrative aide to the warden of ECI. When she returned to work after her surgery, she was reassigned to a position as secretary in the maintenance department.
There was no loss in pay, benefits or grade as a result of the job shift, but Montgomery claimed it was a retaliatory demotion because she took extended leave for her surgery. As such, she said, it was a violation of the Family Medical Leave Act and she sued the state, the warden and the assistant warden.
The state first argued in U.S. District Court in Baltimore that it was immune from suit under the 11th Amendment, but it later withdrew that defense. The lower court judge dismissed the suit, however, saying he had a “duty not to enforce unconstitutional statutes” and that the state’s withdrawal of its immunity claim did not allow it to be sued in federal court.
On appeal, the state’s attorneys said they would be invoking sovereign immunity against Montgomery’s suit. But Jeon said that claim came only in oral arguments and only after the court asked the state if it planned to use that defense.
The appellate panel dismissed the case, rejecting Montgomery’s argument that the state had waived its right to sovereign immunity when it withdrew the defense in the lower court. The appeals court said state law prohibits the attorney general from waiving the right of sovereign immunity from private suits.
The decision was assailed by Montgomery’s original attorney, Robin Cockey.
“The state of Maryland wants everybody to obey this law, but it isn’t necessarily going to abide by it,” Cockey said. “It’s now as if the state is saying, look, everybody should abide by the FMLA, except for us. Or at least, our compliance should be purely voluntary.”
But the appeals court said that, even without the question of sovereign immunity, the case had to be dismissed because Montgomery had not proved that she had suffered any real harm in the job shift.
“The ruling in the Montgomery case, unfortunately, erodes the employee’s expectations of what will happen when the employee gets back to work,” Cockey said.
Jeon said the matter could eventually wind up in the Supreme Court, but neither she nor Cockey could say what their next step would be until they have had a chance to study the Wednesday ruling.