
    Cynthia HOLLIDAY v. BOARD OF SUPERVISORS OF LSU AGRICULTURAL AND MECHANICAL COLLEGE, etc.
    No. 2014-CC-0585.
    Supreme Court of Louisiana.
    Oct. 15, 2014.
    James D. Caldwell, Attorney General, Tanya L. Irvin, Phyllis E. Glazer, Assistant Attorneys General, for Applicant.
    Leonard Louis Levenson, New Orleans, LA, Venezia and Associates APLC, John Armand Venezia, Metairie, LA, Weigand & Levenson, Christian W. Helmke, New Orleans, LA, for Respondent.
   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 |2below, 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, — U.S.-, 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. 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 ^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 them-' selves 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 |4expressly 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. 
      
      . 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.
     