In Myles v. UT Health Science Center at San Antonio, No. 17-00871-XR, 2018 US Dist. LEXIS 5080 (W.D. Tex.), we see an instance in which the state employee successfully sued the state employer for a violation of the Family Medical Leave Act. Normally, a state employer is immune to a suit based on the FMLA, if the allegation is the employee had to stay home to care for herself. The state employer can simply cite its Eleventh Amendment immunity, and the lawsuit would end. But, in this case, the employee also sued the individual managers who were responsible for her termination.

Loretta Myles worked for UTHSC for many years, eventually rising to the manager level in the Human Resources department in 2009. In 2015, she requested FMLA leave to care for her ill husband. He suffered from prostrate cancer. But, Plaintiff’s supervisor, Ann Gaeke told her not to use FMLA leave. At one point, Ms. Gaeke warned Ms. Myles she should start looking for another job. The Plaintiff then took several weeks leave, saying she needed a break from harassment by her supervisor. On her first day back at work, Ms. Gaeke presented the employee with written discipline. Three days later, she was fired.

At the outset, the employer submitted a motion to dismisses citing Eleventh Amendment immunity. The Agency also argued that the two named defendants, Ann Gaeke and Heather Kobbe, are not “employers” as defined in the FMLA. But, the district court pointed to caselaw which did find that “employer” could include a public employee. Looking at Ms. Myles’ leave request as “self-care,” the court rightly noted that the Supreme Court has held that state employees cannot sue the state under the FMLA for taking care of oneself. But, the district court noted that Ms. Gaeke took sufficient actions against the plaintiff that her actions were in controversy. This was more than a supervisor simply carrying out state mandated requirements.

In its reply brief, the state raised the issue of qualified immunity regarding Ms. Gaeke. But, accepting the Plaintiff’s allegations as true, as the court must, the plaintiff has shown sufficient facts to indicate Ms. Gaeke violated clear statutory rights. Therefore, qualified immunity does not apply.

Well, I described the argument as a silly one, but it was not too silly for the Texas Supreme Court. In the case of Redus v. UIW, the Supreme Court ruled that the law enforcement department of a private university is a governmental body for purposes of qualified immunity. With qualified immunity, the law enforcement officers enjoy greater protection from lawsuits. As I indicated then, the Texas Supreme Court is remarkably friendly to defendants in suits for money damages. I previously wrote about the appeal here.

The court reasoned that charter schools are afforded governmental immunity. Although, charter schools are also expressly provided with governmental immunity by the statute creating charter schools. The court then pointed to the various functions performed by campus police officers which equate to the same functions performed by true governmental police officers.

The court notes that the Texas Tort Claims Act provides that to receive governmental immunity, an entity must be an “institution, agency or organ of government” and derive its status and authority as such from laws passed by the Legislature. The court then asks if the UIW campus police department is part of a larger governmental system. The court pointed to the statutory scheme that makes private charter schools part of the broader public school system in Texas. The statutory scheme that created charter schools expressly provides governmnental immunity to those schools. The Legislature did not say anything similar when it allowed private universities to establish campus police departments. But, said the court, the Legislature allowed private universities to use the same resources true governmental entities use to enforce laws: commissioned peace officers. The court concluded that the UIW police department satisfies the requirements of a governmental entity. It left to the court of appeals to determine the final question, whether sovereign immunity would apply to the lawsuit regarding the death of Cameron Redus in 2013. See the decision here. But, if UIW is now an “organ” of government, that result is essentially decided by this opinion.

No dissent was filed, so we assume the decision was unanimous. The court went to great lengths to reach its intended aim, limiting the lawsuit against UIW. No law gives UIW its status as an organ of government. The reasoning tends to suggest a result oriented decision. The court’s opinion would apparently not apply to private security guards, who are not commissioned peace officers. But, otherwise, it appears that any entity that hires commissioned peace officers for security may become a governmental entity for purposes of the Texas Tort Claims Act. That is a remarkable result. For example, under this reasoning, a celebrity passing through Texas who hires a commissioned peace officer for security would probably achieve governmental entity protections just like UIW.

It seems almost silly to argue, as the University of the Incarnate Word does, that UIW’s police force is a governmental body. Yet, that is the very argument the school made to the Texas Supreme Court yesterday. I previously wrote about this appeal here and here. UIW seeks the status of “qualified immunity.” With the sort of qualified immunity of a governmental entity, the lawsuit by the family of Cameron Redus would be dismissed. Young Mr. Redus was shot and killed by UIW police in 2013. He was killed by a UIW police officer.

The district court and the Fourth Court of Appeals sided with the Redus family. They found that UIW was not an arm of the government. But, the reality of the Texas Supreme Court is that no matter how silly the argument is, if that argument is made by the employer or by the defendant in a claim for damages, that argument might win. The Texas Supreme Court is remarkably biased in favor of the defendant, these days.

The heart of the argument appears not to have changed. UIW is still arguing that since their small police force must be licensed by the state, then it must be a governmental body. The attorney did specific that the school only argues the police force is a governmental body, not UIW in its entirety. See San Antonio Express News report.  . . .  Well, ok, glad that is cleared up. But, still, if state licensing makes a private sector entity public, then every licensed barber is equally an arm of the state government.

Frivolous lawsuits and frivolous defenses have always been around. We see one such frivolous defense in the appeal filed by University of the Incarnate Word. UIW is being sued by the family of Cameron Redus. Mr. Redus was shot by a UIW police officer in 2013 after a traffic stop. The family sued UIW. Now, UIW is making a silly claim. The university is claiming the UIW police department is a state entity, so as to be protected by “qualified immunity.” Qualified immunity means the state, which is normally immune from suit, has not passed a statute removing that immunity. If the UIW police department is immune from suit, then the lawsuit will be dismissed.

But, wait, isn’t UIW a private school? Yes, it is. It would be a huge stretch to turn the UIW police department into an arm of the state government. This is a frivolous appeal in the sense that the chances of success are extremely small. Very likely, this is simply an attempt to delay the lawsuit. UIW, like most defendants, hope to delay and just wear down the plaintiff. For better or for worse, that is our adversarial system of justice works.