                         Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                         NEWS RELEASE #051


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 15th day of October, 2014, are as follows:



BY KNOLL, J.:


2014-CC-0585      CYNTHIA HOLLIDAY v. BOARD OF SUPERVISORS OF LSU AGRICULTURAL AND
                  MECHANICAL COLLEGE, ETC. (Parish of Orleans)

                  For the foregoing reasons, the judgment of the district court is
                  reversed. We hereby grant defendant’s Exception of No Cause of
                  Action. This matter is remanded to district court to allow the
                  plaintiff the opportunity to amend her petition to state a valid
                  cause of action if she can.
                  REVERSED AND REMANDED.
10/15/14




                     SUPREME COURT OF LOUISIANA

                                NO. 2014-CC-0585

                             CYNTHIA HOLLIDAY

                                     VERSUS

           BOARD OF SUPERVISORS OF LSU AGRICULTURAL
                AND MECHANICAL COLLEGE, ETC.


      ON SUPERVISORY WRITS TO THE CIVIL DISTRICT COURT
                 FOR THE PARISH OF ORLEANS
KNOLL, JUSTICE

      This case concerns the State’s sovereign immunity from suit based on a

federal cause of action. A claim for damages was filed against the Board of

Supervisors of LSU Agricultural and Mechanical College, Etc. (State) pursuant to

the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601, et seq. (FMLA).

Plaintiff, Cynthia Holliday, alleges she was unlawfully terminated from her

employment with the State while on leave in 2009, in violation of the FMLA’s

“self-care” provision, which entitles an employee to take up to 12 work weeks of

unpaid leave per year under certain circumstances, including having a serious

health condition which interferes with the employee's ability to perform. 29 U.S.C.

§ 2612(a)(1). The FMLA creates a private right of action to seek money damages

“against any employer (including a public agency) in any Federal or State court of

competent jurisdiction.” Id. at § 2617(a)(2).

      On May 5, 2010, Holliday filed her “Petition for Damages for Violations of

the Family Medical Leave Act” in district court. The State filed an Exception of

No Cause of Action on the basis of sovereign immunity, which the district court

denied. The Fourth Circuit denied Supervisory Writs. For the reasons articulated

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below, we find the trial court erred as matter of law in denying the State’s

Exception of No Cause of Action.

       As noted by the United States Supreme Court in Coleman v. Court of

Appeals of Maryland, 132 S.Ct. 1327, 1333, 182 L.Ed.2d 296 (2012), “A

foundational premise of the federal system is that States, as sovereigns, are

immune from suits for damages, save as they elect to waive that defense. See

Kimel v. Florida Bd. of Regents, 528 U.S. 62, 72–73, 120 S.Ct. 631, 145 L.Ed.2d

522 (2000); Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 144 L.Ed.2d 636

(1999).” The only exception to the rule of the States’ sovereign immunity comes

with a valid exercise of congressional power under § 5 of the Fourteenth

Amendment. Id. Such an exercise of congressional power requires identification of

a pattern of constitutional violations by the States and creation of a congruent and

proportional remedy to address those violations. Id. at 1334. In Coleman, a

plurality of the Supreme Court found the self-care provision at issue in the present

case, 26 U.S.C. § 2612(a)(1)(D), was not well-tailored to address a pattern of

constitutional violations and, therefore, was an invalid abrogation of the States’

sovereign immunity.1 Id. at 1338.


       Plaintiff argues, however, that Louisiana has elected to waive its sovereign

immunity by virtue of Article 12 § 10(A) of its Constitution, which states:


       No immunity in contract or tort. Neither the state, nor a state agency,
       nor a political subdivision shall be immune from suit and liability in
       contract or for injury to person or property. [Emphasis added].
       Holliday asserts the employment relationship required for claims under the

FMLA is essentially a contract, and, therefore, the State’s sovereign immunity is

waived in this case. However, La. Const. art. 12 § 10(A) does not waive or cede

1
 Justice Scalia, concurring in the plurality’s judgment, would further limit Congress’s power
under § 5 “to the regulation of conduct that itself violates the Fourteenth Amendment.” Coleman
at 1338.



                                               2
Louisiana’s sovereign immunity in the federal system to unlimited Congressional

power over State contracts. Nor does this constitutional provision evidence a

waiver of sovereign immunity for the purposes of the FMLA’s self-care provision

as contemplated by Coleman. Justice Kennedy, in his opinion announcing the

judgment of the Court in Coleman, stated, “If the State agrees with petitioner that

damages liability for violations of the self-care provision is necessary to combat

discrimination against women, the State may waive its immunity or create a

parallel state law cause of action.” Coleman at 1337-8. Notably, the state at issue in

the Coleman case, Maryland, already had provisions in place similar to Louisiana’s

waiving immunity from suit in contract and tort. Md. Code Ann., State Gov’t § 12-

104, 201.


      The Court in Coleman forcefully reiterated the States' sovereignty in the

federal system with respect to the limitations on Congress's authority to control the

operations of the States. Indeed, if this suit had been brought in federal court, it

would have been dismissed with prejudice. See Paulin v. Dept. of Health and

Hospitals, CIV.A. 13-5447, 2013 WL 6405021 at 2 (E.D. La. Dec. 9, 2014)

(dismissing FMLA self-care claim for monetary relief in light of Coleman), Colvin

v. Bd. of Sup’rs of Univ. of Louisiana, 12-1829, 2014 WL 108919 at 2 (W.D. La.

Jan. 9, 2014) (granting Motion for Summary Judgment dismissing FMLA claims in

light of Coleman).


       While Louisiana may have waived sovereign immunity with respect to

some claims, La. Const. art. 1 § 26 makes it clear the State has not waived its

sovereignty within the federal system. To the contrary:


      The people of this state have the sole and exclusive right of governing
      themselves as a free and sovereign state; and do, and forever hereafter
      shall, exercise and enjoy every power, jurisdiction, and right,
      pertaining thereto, which is not, or may not hereafter be, by them


                                          3
      expressly delegated to the United States of America in congress
      assembled.
We find the trial court erred as a matter of law in determining the State had elected

to waive its sovereign immunity for purposes of the FMLA by virtue of La. Const.

art. 12 § 10(A). The judgment of the trial court is reversed. In accordance with La.

C.C.P. art. 934, plaintiff will be given an opportunity to amend her petition to state

a valid cause of action if she can.


                                       DECREE

      For the foregoing reasons, the judgment of the district court is reversed. We

hereby grant defendant’s Exception of No Cause of Action. This matter is

remanded to district court to allow the plaintiff the opportunity to amend her

petition to state a valid cause of action if she can.


REVERSED AND REMANDED.




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