Lizzi v. Alexander , 255 F.3d 128 ( 2001 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CHRISTOPHER T. LIZZI, 
Plaintiff-Appellee,
v.
ROBERT ALEXANDER; CHARLES
THOMAS; PHILLIP WALLACE; ANTHONY
JOHNSON; AL MCCOY; DENNISE
KURTZ,
Defendants-Appellants,  No. 00-2103
and
WASHINGTON METROPOLITAN AREA
TRANSIT AUTHORITY; JACK BYRD;
MICHAEL KURTZ,
Defendants.
UNITED STATES OF AMERICA,
Movant.

2 LIZZI v. ALEXANDER
CHRISTOPHER T. LIZZI, 
Plaintiff-Appellant,
v.
ROBERT ALEXANDER; CHARLES
THOMAS; PHILLIP WALLACE; ANTHONY
JOHNSON; AL MCCOY; DENNISE
KURTZ; WASHINGTON METROPOLITAN
AREA TRANSIT AUTHORITY; JACK
BYRD,
 No. 00-2104
Defendants-Appellees,
and
MICHAEL KURTZ,
Defendant.
UNITED STATES OF AMERICA,
Movant.

LIZZI v. ALEXANDER 3
CHRISTOPHER T. LIZZI, 
Plaintiff-Appellee,
v.
ROBERT ALEXANDER; CHARLES
THOMAS; PHILLIP WALLACE; ANTHONY
JOHNSON; AL MCCOY; DENNISE
KURTZ,
Defendants-Appellants,  No. 00-2126
and
WASHINGTON METROPOLITAN AREA
TRANSIT AUTHORITY; JACK BYRD;
MICHAEL KURTZ,
Defendants.
UNITED STATES OF AMERICA,
Movant.

Appeals from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CA-98-2660-DKC)
Argued: April 4, 2001
Decided: June 20, 2001
Before WILKINSON, Chief Judge, and LUTTIG and
GREGORY, Circuit Judges.
Affirmed in part, reversed in part, and remanded by published opin-
ion. Chief Judge Wilkinson wrote the opinion, in which Judge Luttig
and Judge Gregory joined.
4 LIZZI v. ALEXANDER
COUNSEL
ARGUED: Gerard J. Stief, Associate General Counsel, WASHING-
TON METROPOLITAN AREA TRANSIT AUTHORITY, Washing-
ton, D.C., for Appellants. Paul Francis Evelius, WRIGHT,
CONSTABLE & SKEEN, L.L.P., Baltimore, Maryland, for Appellee.
ON BRIEF: Cheryl C. Burke, General Counsel, Robert J. Kniaz,
Deputy General Counsel, Sonia A. Bacchus, Assistant General Coun-
sel, WASHINGTON METROPOLITAN AREA TRANSIT
AUTHORITY, Washington, D.C., for Appellants.
OPINION
WILKINSON, Chief Judge:
In this case, we must decide whether the Eleventh Amendment
shields the Washington Metropolitan Area Transit Authority
(WMATA), an agency created by interstate compact, from plaintiff
Christopher Lizzi’s assertions that the agency violated the Family and
Medical Leave Act (FMLA), 29 U.S.C. §§ 2601 et seq. (1994). We
also must decide the related question of whether sovereign immunity
bars Lizzi’s allegation that several individual employees of WMATA
violated the FMLA and are thus subject to personal liability for the
alleged damages. The district court held that the Eleventh Amend-
ment bars Lizzi’s claims against WMATA, but that the FMLA per-
mits Lizzi to bring an action against the employees of WMATA in
their individual capacities. Because sovereign immunity extends to
WMATA, and because the claims against the WMATA employees
are in reality claims against the agency itself, we affirm in part,
reverse in part, and remand with directions to dismiss the action.
I.
A.
Plaintiff Christopher Lizzi worked as a bus wheelchair lift
mechanic for WMATA until September, 1997. WMATA fired Lizzi
for allegedly combining sick days and vacation leave to miss work for
LIZZI v. ALEXANDER 5
the entire summer. WMATA maintained that Lizzi fabricated his sick
leave and did not submit to a medical exam, as required by the agen-
cy’s policies. Lizzi contested this, and filed suit under the FMLA
alleging that WMATA terminated him in violation of the Act.
Lizzi sued WMATA as well as seven individual supervisors at
WMATA. The complaint stated that "Plaintiff Christopher T. Lizzi
sues defendants Washington Metropolitan Area Transit Authority,
Robert Alexander, Charles Thomas, Anthony Johnson, Michael
Kurtz, Phillip Wallace, Al McCoy, and Jack Byrd." The complaint
further declared that the individual defendants "have, at all relevant
times, been employees of WMATA." The complaint also noted the
supervisory positions of some of these defendants. McCoy and Byrd
were Garage Shift Supervisors; Johnson oversaw the Garage Shift
Supervisors; Alexander was WMATA’s Absenteeism Supervisor; and
Kurtz was WMATA’s Bus Maintenance Superintendent. The com-
plaint did not specify the positions of either Thomas or Wallace. Lizzi
asked for, inter alia, reinstatement, back pay, damages, and an order
prohibiting the defendants from violating the FMLA.
The district court granted summary judgment for WMATA on
Eleventh Amendment grounds, but kept the individual defendants in
the case. The lower court held that the WMATA compact does not
waive the agency’s Eleventh Amendment immunity, and that the
FMLA is not a valid exercise of Congress’ Fourteenth Amendment,
§ 5 power. But the court also held that the FMLA specifically defines
"employer" to include supervisors, and thus the plain language of the
FMLA authorizes suits against the individual employees in their indi-
vidual capacities. The district court certified for interlocutory appeal
the issues of WMATA’s waiver of immunity and the liability of the
individual defendants under the FMLA. WMATA appeals the deci-
sion to keep the individual supervisors in the case, and Lizzi cross-
appeals the district court’s decision that the compact does not waive
WMATA’s sovereign immunity.
B.
WMATA is an interstate compact agency and instrumentality of
Maryland, Virginia, and the District of Columbia. Its purpose is to
ensure the proper functioning and operation of a mass transit system
6 LIZZI v. ALEXANDER
in the Washington, D.C. metropolitan area. See Morris v. WMATA,
781 F.2d 218, 219 (D.C. Cir. 1986). WMATA receives approximately
44% of its budget from the signatory states. The WMATA compact
was approved by Congress in 1966. See Washington Metropolitan
Area Transit Authority Compact, Pub. L. No. 89-774, 80 Stat. 1324(1966).
Three sections of the compact are at the heart of this case. First,
§ 12 states that WMATA may "[s]ue and be sued." Id. at 1328. Sec-
ond, § 80 declares that WMATA
shall be liable for its contracts and for its torts and those of
its Directors, officers, employees and agent [sic] committed
in the conduct of any proprietary function, in accordance
with the law of the applicable signatory (including rules on
conflict of laws), but shall not be liable for any torts occur-
ring in the performance of a governmental function. The
exclusive remedy for such breach of contracts and torts for
which the Authority shall be liable, as herein provided, shall
be by suit against the Authority. Nothing contained in this
title shall be construed as a waiver by the District of Colum-
bia, Maryland, Virginia, and the counties and cities within
the zone of any immunity from suit.
Id. at 1350. Third, § 81 says in pertinent part:
The United States District Courts shall have original juris-
diction, concurrent with the Courts of Maryland and Vir-
ginia, of all actions brought by or against [WMATA] and to
enforce subpoenas issued under [this compact]. Any such
action initiated in a State Court shall be removable to the
appropriate United States District Court.
Id.
II.
A.
We note at the outset that WMATA possesses Eleventh Amend-
ment immunity. The signatories of the compact intended to confer
LIZZI v. ALEXANDER 7
Eleventh Amendment immunity on WMATA. See Delon Hampton &
Assoc. v. WMATA, 943 F.2d 355, 359 (4th Cir. 1991). Further, both
this circuit and the D.C. Circuit have held that Eleventh Amendment
immunity may attach to WMATA’s actions. See id. at 359; Morris,
781 F.2d at 220. WMATA is a state agency, subject to all the benefits
and liabilities of a state itself, including sovereign immunity. See
Morris, 781 F.2d at 219-20. It does not matter that WMATA was cre-
ated by interstate compact, as opposed to being an agency of one state
alone. See Delon Hampton, 943 F.2d at 359; Jones v. WMATA, 205
F.3d 428, 432 (D.C. Cir. 2000).
In Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30 (1994), the
Supreme Court held that the Port Authority Trans-Hudson, an inter-
state compact entity, could not claim sovereign immunity. See Hess,
513 U.S. at 52-53. But the Court in Hess relied heavily on the fact
that the Port Authority did not receive any funding from any state.
Instead, it was a "self-sustaining" agency. Id. at 50. Indeed, the Court
in Hess specifically distinguished the Port Authority from WMATA
because WMATA was not self-sufficient. Id. at 49-50. Thus, the con-
ferral of Eleventh Amendment immunity on WMATA "is compati-
ble" with the holding in Hess. Id. at 50 n.20.
B.
Lizzi argues that under Port Auth. Trans-Hudson Corp. v. Feeney,
495 U.S. 299 (1990), §§ 12 and 81 of the WMATA Compact read
together effect a waiver of the agency’s Eleventh Amendment immu-
nity.
In Feeney, the Supreme Court ruled that an interstate compact
entity, the Port Authority Trans-Hudson, had given its consent to suit
in federal court. See 495 U.S. at 308-09. The statutory consent to suit
provision in Feeney proclaimed that the states gave "consent to suits,
actions, or proceedings of any form or nature at law, in equity or oth-
erwise . . . against the Port of New York Authority." Id. at 306 (inter-
nal quotations omitted) (alteration in original). This provision
standing alone, although "broadly framed," may have reflected "only
a State’s consent to suit in its own courts." Id. The Court thus looked
at the venue provision of the compact, which stated that venue "shall
be laid within a county or judicial district, established by one of said
8 LIZZI v. ALEXANDER
States or by the United States . . . ." Id. at 307 (internal quotations
omitted). Since the venue provision explicitly referred to federal
courts, the Court held that the statutory consent to suit provision must
encompass both federal and state courts. See id. at 307-09.
Lizzi argues that the similar provisions in the WMATA compact
also effect a waiver of Eleventh Amendment immunity. Section 12
states that WMATA may "[s]ue and be sued." 80 Stat. at 1328. And
§ 81 makes clear that venue is proper in federal court. Thus, Lizzi
maintains that under the reasoning of Feeney, WMATA must have
waived its Eleventh Amendment immunity.
We disagree. Even were we to assume that WMATA’s consent to
suit provision is coextensive with the broader consent to suit provi-
sion in Feeney, Lizzi’s argument has one fatal flaw: § 80 of the
WMATA compact "specifically and expressly delineates the scope of
WMATA’s consent to be sued." Morris, 781 F.2d at 222 n.3. Feeney
is not applicable here because it did not confront the situation in this
case — a compact containing another clause specifically addressing
the extent to which an agency waives its sovereign immunity. Morris
involved a suit brought by an officer contending that WMATA dis-
criminatorily discharged him. The Morris court disallowed the plain-
tiff’s suit, even though the case arose under federal law, because § 80
did not waive WMATA’s Eleventh Amendment immunity. See id. at
219-21. Since Morris, the District of Columbia Circuit has consis-
tently held that the WMATA compact does not waive the agency’s
Eleventh Amendment immunity. See, e.g., Jones, 205 F.3d at 432(suit brought under the ADEA dismissed due to WMATA’s Eleventh
Amendment immunity); Beebe v. WMATA, 129 F.3d 1283, 1285-86
(D.C. Cir. 1997) (suit alleging, inter alia, constructive discharge dis-
missed due to WMATA’s sovereign immunity); Souders v. WMATA,
48 F.3d 546, 551 (D.C. Cir. 1995) (nuisance suit dismissed due to
WMATA’s Eleventh Amendment immunity); Sanders v. WMATA,
819 F.2d 1151, 1153-56 (D.C. Cir. 1987) (suit alleging negligent ter-
mination and violation of federal statute dismissed due to WMATA’s
sovereign immunity).
Lizzi argues in response to this multitude of cases that the D.C.
Circuit is wrong, and that § 80 is applicable only to claims arising
under state law. We agree with the Morris line of cases, however.
LIZZI v. ALEXANDER 9
Any waiver of Eleventh Amendment immunity must be clear and
unequivocal. See Edelman v. Jordan, 415 U.S. 651, 673 (1974). The
text of § 80 indicates that the WMATA compact provides only for a
limited waiver of sovereign immunity. The compact explicitly waives
WMATA’s sovereign immunity for breaches of contract and for torts
"committed in the conduct of any proprietary function." 80 Stat. at
1350. There is no contention that the exercise of authority at issue in
this suit was in any sense a tort or a contract "committed in the con-
duct of any proprietary function." Rather, hiring, training, and super-
vision practices are governmental functions. See Beebe, 129 F.3d at
1287. This case therefore does not fit within the scope of WMATA’s
limited waiver of sovereign immunity.
The compact evinces an intent that the agency does not waive its
immunity in all other cases. It is thus unavailing to argue that §§ 12
and 81 effected a broad waiver of Eleventh Amendment immunity
when § 80 makes so clear the limited nature of any such waiver. Reli-
ance solely upon the sue and be sued clause and the venue clause, as
Lizzi urges us to do, "would be particularly inappropriate" in this case
because "another section of the Compact, § 80," delineates the entire
scope of WMATA’s waiver of its sovereign immunity. Morris, 781
F.2d at 222 n.3. Lizzi cannot use the combination of §§ 12 and 81 to
create a waiver that § 80 itself does not provide. Indeed, "it is a com-
monplace of statutory construction that the specific governs the gen-
eral." Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384
(1992). Finally, we agree with the D.C. Circuit that nothing in the
WMATA compact purports to waive the agency’s Eleventh Amend-
ment immunity in all cases under federal law. See Jones, 205 F.3d at
430; Morris, 781 F.2d at 221. Our reading of the compact is not only
faithful to its language; it also renders circuit law consistent in the two
federal circuits most likely to hear cases in which WMATA is a party.
C.
The only remaining reason why WMATA would be subject to suit
is if the FMLA validly abrogates the agency’s Eleventh Amendment
immunity. The district court ruled that the FMLA did not abrogate
WMATA’s Eleventh Amendment immunity. We agree.
The Supreme Court has enunciated a two-part test for determining
whether an act of Congress abrogates a state’s Eleventh Amendment
10 LIZZI v. ALEXANDER
immunity. First, Congress must unequivocally declare an intent to
abrogate. Second, Congress must act pursuant to a valid exercise of
its power. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55
(1996). We assume for purposes of this decision that Congress has
declared its unequivocal intent to abrogate. The FMLA states that an
action may be maintained "against any employer (including a public
agency) in any Federal or State court of competent jurisdiction. . . ."
29 U.S.C. § 2617(a)(2). Cf. Kimel v. Florida Bd. of Regents, 528 U.S.
62, 73-74 (2000) (holding that identical language in the Age Discrim-
ination in Employment Act constitutes an unmistakably clear attempt
by Congress to abrogate a state’s Eleventh Amendment immunity).
Congress must also have the proper constitutional authority to
abrogate, however. Since Seminole Tribe, the Court has made clear
that Congress cannot abrogate Eleventh Amendment immunity using
its Article I powers. See, e.g., Board of Tr. of the Univ. of Ala. v. Gar-
rett, 121 S. Ct. 955, 962 (2001) ("Congress may not, of course, base
its abrogation of the States’ Eleventh Amendment immunity upon the
powers enumerated in Article I."); id. (collecting cases since Seminole
Tribe); see also South Carolina State Ports Auth. v. Federal Mar.
Comm’n, 243 F.3d 165, 168 (4th Cir. 2001). Only under its Four-
teenth Amendment, § 5 power can Congress validly abrogate a state’s
immunity from private suit. See Garrett, 121 S. Ct. at 962; South Car-
olina Ports, 243 F.3d at 177.
Legislation properly enacted under § 5 must be congruent and pro-
portional to the Fourteenth Amendment injury being remedied. City
of Boerne v. Flores, 521 U.S. 507, 520 (1997); Kimel, 528 U.S. at 81;
Garrett, 121 S. Ct. at 963. The Supreme Court has held that both the
Age Discrimination in Employment Act and the Americans With Dis-
abilities Act were not validly enacted under Congress’ § 5 power
because "the remedy imposed by Congress" was not "congruent and
proportional to the targeted violation." Garrett, 121 S. Ct. at 967-68(ADA); accord Kimel, 528 U.S. at 82-83 (ADEA).
Thus, the issue here is whether the FMLA is congruent and propor-
tional to the identified Fourteenth Amendment violation — employ-
ment discrimination on the basis of sex. The statute identifies gender
discrimination as the constitutional harm to be remedied by the
FMLA. The FMLA states that its purpose is to "minimize[ ] the
LIZZI v. ALEXANDER 11
potential for employment discrimination on the basis of sex by ensur-
ing generally that leave is available for eligible medical reasons
(including maternity-related disability) and for compelling family rea-
sons, on a gender neutral basis" and in a manner "consistent with the
Equal Protection Clause of the Fourteenth Amendment." 29 U.S.C.
§ 2601(b)(4); see also Chittister v. Department of Cmty. and Econ.
Dev., 226 F.3d 223, 228 (3d Cir. 2000). In making this finding of pur-
pose, Congress did not identify, as it is required to do, any pattern of
gender discrimination by the states with respect to the granting of
employment leave for the purpose of providing family or medical
care. See Garrett, 121 S. Ct. at 964-65. As the Third Circuit has
stated, "Notably absent is any finding concerning the existence, much
less the prevalence, in public employment of personal sick leave prac-
tices that amounted to intentional gender discrimination in violation
of the Equal Protection Clause." Chittister, 226 F.3d at 228-29.
Moreover, the FMLA is simply not narrowly tailored to redress the
asserted Fourteenth Amendment harm of gender discrimination.
While Congress has broad latitude to act, it does not have the consti-
tutional power to pass such a sweeping statute on the basis of the pur-
ported Fourteenth Amendment violation. The difficulty is that the
FMLA bestows on private parties a broad-ranging substantive entitle-
ment to sue states for a range of personnel practices without any find-
ing that the states were culpable of an Equal Protection violation to
begin with. That the FMLA sweeps far beyond the redress of gender
discrimination is evident in the breadth of the entitlement to subject
a state to suit. Instead of attempting to remedy the identified violation,
Congress attempted to redefine the right. As the district court noted,
the FMLA "exceeds Congress’s power under the Fourteenth Amend-
ment by attempting to define specifically what equal protection means
rather than merely remedy an existing constitutional violation."
The FMLA "does much more than require nondiscriminatory sick
leave practices; it creates a substantive entitlement to sick leave."
Chittister, 226 F.3d at 229. The Act imposes on the states a federally
devised standard entitling employees to "12 workweeks of leave dur-
ing any 12-month period." 29 U.S.C. § 2612(a)(1). The Act also
allows any person to subject a state to private suit for violating the
statute. Id. § 2617(a)(2). The Fourteenth Amendment does not allow
Congress to prescribe a privately enforceable guarantee to all state
12 LIZZI v. ALEXANDER
employees of at least twelve weeks of leave per year. See, e.g., Chit-
tister, 226 F.3d at 228-29; Garrett v. University of Ala. at Birming-
ham Bd. of Tr., 193 F.3d 1214, 1219 (11th Cir. 1999), rev’d on other
grounds, 121 S. Ct. at 968.
In sum, the substantive requirements of the FMLA are "‘so out of
proportion to a supposed remedial or preventive object that it cannot
be understood as responsive to, or designed to prevent, unconstitu-
tional behavior.’" Kimel, 528 U.S. at 82 (quoting City of Boerne, 521
U.S. at 532). Indeed, every circuit to examine this issue has identified
this fundamental lack of proportionality as a main reason why the
FMLA is not a valid abrogation of a state’s Eleventh Amendment
immunity from suit. See, e.g., Townsel v. Missouri, 233 F.3d 1094,
1095 (8th Cir. 2000); Chittister, 226 F.3d at 229 (legislative scheme
not "tailored to preventing any [constitutional] harm"); Kazmier v.
Widmann, 225 F.3d 519, 526 (5th Cir. 2000) ("Broad, prophylactic
legislation must be congruent with and proportional to actual, identi-
fied constitutional violations by the States."); Sims v. University of
Cincinnati, 219 F.3d 559, 566 (6th Cir. 2000); Hale v. Mann, 219
F.3d 61, 69 (2d Cir. 2000) ("There is no evidence that this conferment
of federally protected leave is tailored to remedy sex-based employ-
ment discrimination."); Garrett, 193 F.3d at 1219. We agree with all
of our sister circuits. The FMLA does not validly abrogate a state’s
Eleventh Amendment immunity from suit.
III.
WMATA and the individual defendants appeal the district court’s
determination that the FMLA allows suits against individual supervi-
sors in their individual capacities. In support of this result, the district
court pointed to the fact that the FMLA’s definition of "employer"
includes "any person who acts, directly or indirectly, in the interest
of an employer to any of the employees of such employer." 29 U.S.C.
§ 2611(4)(A)(ii)(I). WMATA argues preliminarily, however, that the
individual defendants in essence have been sued for damages in their
official capacities rather than their individual capacities.1
1
In view of our resolution of this issue, we do not address the question
of whether, in an action against a private employer, an individual super-
visor is subject to personal liability for violating the FMLA.
LIZZI v. ALEXANDER 13
"Only States and state officers acting in their official capacity are
immune from suits for damages in federal court." Buckhannon Board
& Care Home, Inc. v. West Virginia Dept. of Health and Human
Resources, 532 U.S. ___, No. 99-1848, slip op. at 10 n.10 (May 29,
2001) (citing Edelman v. Jordan, 415 U.S. 651 (1974)). The Supreme
Court has declared that the "Eleventh Amendment bars a suit against
state officials when ‘the state is the real, substantial party in interest.’"
Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 101
(1984) (quoting Ford Motor Co. v. Department of Treas. of Ind., 323
U.S. 459, 464 (1945)). The Supreme Court has also made clear that
a suit for damages against individual officers in their official capaci-
ties is treated like a suit against the state itself. See, e.g., Pennhurst,
465 U.S. at 101; Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S.
261, 270 (1997). Thus, if Lizzi has sued the individual supervisors in
their official capacities, the employees would be entitled to the same
Eleventh Amendment immunity that WMATA itself retains.
Here, Lizzi’s complaint makes clear that the state is the real party
in interest. Lizzi’s complaint named seven individuals as well as
WMATA. The complaint, however, never stated whether the individ-
uals were being sued in their official or individual capacities. More-
over, the allegations in the complaint recounted how WMATA as an
agency decided to fire Lizzi. Any actions of the individual defendants
were tied inextricably to their official duties. For example, the com-
plaint recounted that "WMATA told [Lizzi]" that he was under inves-
tigation after "defendant Alexander, WMATA’s Absenteeism
Supervisor, recommended in writing to defendant Kurtz, WMATA’s
Bus Maintenance Superintendent, that plaintiff be terminated." The
complaint made no showing of any ultra vires action taken by any
individual employee. And a conclusory allegation that the "defen-
dants" were motivated by "spite" and "ill will" is not enough, standing
alone, to maintain an FMLA action against these supervisors in their
individual capacities.
Indeed, even if Lizzi had actually used the phrase "individual
capacity," his complaint could not stand. In Bender v. Williamsport
Area Sch. Dist., 475 U.S. 534 (1985), the Supreme Court emphasized
that the mere incantation of the term "individual capacity" is not
enough to transform an official capacity action into an individual
capacity action. See 475 U.S. at 543. Here, Lizzi’s complaint is
14 LIZZI v. ALEXANDER
weaker than Bender’s because the complaint does not even state that
the defendants are being sued in their individual capacities. Rather,
the complaint used the defendants’ work address as the address of
record and spoke of the individual defendants by name only passingly
and in relation to the jobs that they performed at WMATA. The other
court to examine the individual-capacity question with regard to
FMLA suits against state employees had no difficulty in holding that
the real party in interest in these lawsuits is the state, not the individ-
ual defendants. See Kazmier, 225 F.3d at 533 n.65.
Lizzi argues, however, that Hafer v. Melo, 502 U.S. 21 (1991),
requires that the claims against the individual supervisors should be
treated as an individual-capacity suit. In Hafer, the Court held that 42
U.S.C. § 1983 permits individual capacity suits against state officers
for damages arising from official acts. See Hafer, 502 U.S. at 23. We
think, however, that Hafer is inapposite. Hafer was based on "the
broad language of § 1983." Id. at 28. Unlike § 1983, the FMLA is not
focused against those who carry the "badge of authority of a State."
Hafer, 502 U.S. at 28 (internal quotations omitted). Whereas § 1983
is intended as a broad enforcement vehicle to bring suit against state
officials for violations of all other federal statutory and constitutional
rights, the FMLA is focused on creating a set of statutory entitlements
in its own right. See, e.g., 29 U.S.C. § 2612(a). Moreover, the text of
the FMLA does not contain the well established system of immunities
which § 1983 defendants can assert.2
Other considerations militate against interpreting the FMLA to
hold individual state employees personally liable for official acts. To
hold that individual supervisors, as "employers," may be sued under
the statute while also holding that the Constitution prohibits the state
2
The issue of whether the FMLA’s remedial scheme is so comprehen-
sive that it preempts the use of § 1983 actions is of course not before us.
See, e.g., Blessing v. Freestone, 520 U.S. 329, 341 (1997) (Congress may
forbid recourse to § 1983 by, inter alia, "creating a comprehensive
enforcement scheme that is incompatible with individual enforcement
under § 1983."); Kilvitis v. County of Luzerne, 52 F. Supp.2d 403, 419
(M.D. Pa. 1999) (The FMLA provides "comprehensive remedial mea-
sures that evinces Congress’ intent to foreclose the use of a § 1983
action.").
LIZZI v. ALEXANDER 15
itself from being sued would undermine the Supreme Court’s deci-
sions in Garrett, Kimel, and Seminole Tribe. Plaintiffs like Lizzi
would easily be able to evade the Eleventh Amendment prohibition
against suing a state merely by naming the individual supervisor as
the employer. We refuse to create such an anomaly. The state would
still suffer the indignity of having each discrete decision regarding
personnel or organizational matters subject to second-guessing by a
federal court. "The real interests served by the Eleventh Amendment
are not to be sacrificed to elementary mechanics of captions and
pleadings." Coeur d’Alene, 521 U.S. at 270.
A rule permitting such individual liability would do nothing more
than "adhere to an empty formalism and [would] undermine the prin-
ciple, reaffirmed . . . in Seminole Tribe, that Eleventh Amendment
immunity represents a real limitation on a federal court’s federal-
question jurisdiction." Id. Because WMATA enjoys Eleventh Amend-
ment immunity for claims brought under the FMLA, the individual
supervisors under the FMLA are protected by that same immunity.
See Beebe, 129 F.3d at 1288-89 (individual supervisors of WMATA
have immunity for alleged wrongful termination of employee).
WMATA’s Eleventh Amendment immunity transfers to the supervi-
sors because the individuals were sued in their official capacities for
their official acts.
IV.
The WMATA compact does not waive the agency’s Eleventh
Amendment immunity from suit. And the FMLA does not validly
abrogate a state’s Eleventh Amendment immunity. Consequently,
Lizzi’s claims against WMATA must be dismissed for lack of subject
matter jurisdiction. Similarly, Lizzi’s claims against the individual
supervisors at WMATA must be dismissed as well because these
claims were in reality an action against the agency itself. The FMLA
does not permit a plaintiff to evade the strictures of sovereign immu-
nity by suing the individual defendants as the employer rather than
the state. For the foregoing reasons, the judgment of the district court
is affirmed in part, reversed in part, and remanded with directions to
dismiss it.
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED