States closely watch Nevada case before Supreme Court

Benjamin Grove

Wednesday, Jan. 15, 2003 | 11:24 a.m.

WASHINGTON -- For William Hibbs of tiny McGill, the six years since his wife's car accident have been an emotionally and financially draining series of legal skirmishes with his former employer -- the state of Nevada.

Fired from his job after taking time off to care for his ailing wife, Hibbs has a seemingly simple request.

"I want my job back," the 46-year-old former Nevada Welfare Division employee said in an interview Tuesday. "(The state has) had every opportunity at every level of this fight to give me my job back, and they have refused."

After years of battling with the state through the court system, Hibbs' case arrived this morning at a high-stakes hearing in front of the U.S. Supreme Court. The case, state officials argue, has bigger implications than Hibbs' job. It tests whether the state has blanket immunity from lawsuits under the 11th Amendment or whether Congress intended states to be vulnerable to lawsuit under the 1993 Family and Medical Leave Act.

Nevada officials say if the court allows states to be sued under the act, state treasuries could be subject to multimillion dollar judgments.

The act was designed by Congress to allow employees -- both men and women -- 12 weeks of unpaid leave to care for an ailing parent, child or spouse.

After a rear-end collision left his wife permanently disabled, Hibbs said he had worked out a deal with his bosses to use up "catastrophic" leave time donated by his colleagues. He said he agreed to return to work in early January 1998.

But he said he was fired before he had ever used 12 weeks of unpaid leave he was entitled to under the 1993 act.

State lawyers say Hibbs used 900 hours of leave, both paid leave and unpaid leave under the act, and said he was not eligible for more.

"Anyone can empathize with the guy -- he's really in a tough spot with regard to his wife's health," state attorney general's office spokesman Tom Sargent said. "But there is an upper limit to the benefit. You can't continue to remain away from work without some kind of consequence."

Hibbs sued in U.S. District Court in Reno, alleging in part that the state did not properly account for his leave time. The court ruled against him, saying states had sovereign immunity from such suits.

But on appeal, the 9th U.S. Circuit Court of Appeals ruled in Hibbs' favor, saying Congress intended for states to be liable under the leave act.

Nevada appealed to the Supreme Court, where Nevada Assistant Attorney General Paul Taggart presented the state's case today. He argued to the nine justices that the act was not designed by Congress to be used as a remedy by employees in gender discrimination cases but was merely a leave benefit law.

"We're confident the court will take all our arguments under consideration," Taggart said on the steps of the court after the one-hour hearing. "We don't think this case is about discrimination. It's about economic benefits, like the minimum wage law."

Hibbs disagreed. He said he felt discriminated against because women in his office had been granted far more leave.

Women are traditionally seen as more likely to take time off to care for family -- a stereotype the act was designed to change, said Hibbs' attorney, Cornelia Pillard, a Georgetown University professor. She said she was confident the court would rule with Hibbs.

Pillard had argued that Congress intended for states to be vulnerable to lawsuits because they wanted all employers to be liable under the act.

Two Democratic senators, Charles Schumer of New York, and Chris Dodd of Connecticut, attended the court session and made the same argument after the hearing today.

"If the court sides with Nevada, and big business sees that states can get out of providing this benefit, they're going to start demanding to get out of it, too," Schumer said.

In general, individuals cannot sue states, according to the 11th Amendment, but the Supreme Court has ruled that in certain cases Congress can take away state immunity from lawsuits under a section of the 14th Amendment.

Nevada may have an edge in the case in that the Supreme Court has sided with states in similar cases under the Americans with Disabilities Act and the Age Discrimination in Employment Act, several observers noted.

"If you are looking for a trend, the trend is obviously in favor of states' rights against being sued by individuals," said Joshua Hawks-Ladds, a Connecticut lawyer who specializes in employment law. Hawks-Ladds, who analyzed the Hibbs case for the legal publication Preview, predicted the court would side with Nevada.

The case could have lasting effects not just on state treasuries, but on future discrimination cases, said University of Nevada, Las Vegas law professor Ann McGinley, who teaches employment law. The court would undermine the Family and Medical Leave Act if it rules with Nevada, McGinley said, setting the stage for future cases, including racial discrimination cases.

"It could bode very poorly for state employees in the future," McGinley said.

The court's decision in the Hibbs case is being closely watched by financially strapped states, which employ nearly 5 million workers.

The lawsuit has divided state attorneys general, and even the lawmakers who crafted the federal act. States that have backed Hibbs in friends of the court briefs include New York, Connecticut, Illinois, Minnesota, New Mexico and Washington.

States that back Nevada include Alabama, Alaska, Delaware, Hawaii, Indiana, Nebraska, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Utah and Virginia.

Hibbs, his wife and their original lawyer, Treva Hearne of Reno, were on hand for the arguments today.

The small team of lawyers who prepared Hibbs' case were organized by the National Partnership for Women & Families, which had been the primary force behind the Family and Medical Leave Act. The group's lawyers, plus Georgetown's Pillard took the case pro bono.

Hibbs said the legal battle has drained his family's savings. They moved from a $200,000 house near Reno to a house Hibbs bought for $6,000 in McGill, north of Ely. Ultimately, Hibbs wants the courts to give him his job back, plus back pay and damages.

"This job was my security, my retirement, my medical benefits," Hibbs said. "That's the main reason I worked for the state -- the medical benefits."

Hibbs said he was encouraged by today's hearing.