In a  suit by an employee of the University of Texas at El Paso (UTEP), a State employee, under the federal Family & Medical Leave Act (FMLA), a federal law granting covered employees up to 12 weeks of unpaid leave to care for a serious medical condition of themselves or their immediate family, the employee claimed that UTEP fired him for taking personal medical leave under the self-care provision of the FMLA.  UTEP filed a plea to the jurisdiction on the FMLA claim contending it was barred by sovereign immunity.  The FMLA has two main provisions which are (1) the self-care provision which allows the employee to take off up to 12 weeks for their own care and (2) the family-care provision which allows an employee to take off to care for their immediate family (including parents who are dependent upon them).  The trial court denied the plea and the court of appeals affirmed.  States are protected from private suits in their own courts and in the federal courts by the Eleventh Amendment unless Congress has validly abrogated that right by a statute or the State validly waives it.  Federal legislation can overcome the immunity provided Congress (1) unequivocally expresses its intent to do so, and (2) acts pursuant to a constitutional provision granting Congress the power to abrogate.  Last week, the Texas Supreme Court in UTEP v. Gerrera  held that even though Congress unequivocally subjected States to FMLA claims, Congress did not have the authority to abrogate the State’s immunity for purposes of the self-care provision.  The United States Supreme Court in Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721 (2203) ruled that the family-care provision was a valid exercise of  Congress’ power based on the right granted by the Equal Protection Clause of the U.S. Constitution because Congress identified a pattern of gender discrimination on the part of the States in that women were more likely to be off to care for family members than men.  Regarding the self-care provision, the Texas Supreme Court ruled that there is no evidence, either in the Congressional findings or elsewhere in the FMLA’s legislative record, that women took more personal medical leave than men.  Therefore, the Court ruled that there is no evidence in the record that Congress intended to remedy unconstitutional gender discrimination through the self-care provisions.  Based on this finding, the Court ruled that the FMLA self-care provision could not be used by State of Texas employees against the State of Texas.  The Court also held that the State of Texas has not validly waived its sovereign immunity to be sued under the FMLA for the self-care provisions.  Therefore, a State employee can be off for 12 week to take care of a family member but not themselves.  (So, the practical effect of this is that while the State may give an employee personal medical leave there is no guarantee that the employee will not be fired or retaliated against for taking the leave. Fortunately, this does not affect the self-care provisions for private employees and private employers.)