U.S. District Judge Howard McKibben threw out a lawsuit by former state worker William Hibbs on Wednesday.
Hibbs was fired in a dispute over how much leave he could take to care for his severely injured wife. Hibbs refused to return to his job in the State Human Resources Department in 1997, arguing he was entitled to 12 weeks more leave under the federal law. The state eventually fired him.
A nine-page ruling concluded the state was within the law in how it calculated the leave Hibbs was eligible for and granted the state's motion for summary judgment.
Defense counsel Robert Hager said they intend to appeal the ruling to the 9th Circuit Court of Appeals in San Francisco. He pointed out that McKibben also ruled for the state in the original claim, saying the state couldn't be sued under the Family Medical Leave Act because of state sovereignty. That ruling was eventually overruled.
"The judge is wrong," he said. "There's sufficient evidence for the case to be presented to a jury and we are optimistic a jury would find in favor of Mr. Hibbs."
Hibbs sued the state arguing the FMLA entitled him to at least 12 weeks of additional leave to care for his wife Dianne, who was severely injured in a 1997 car wreck. He claimed the state violated the law in ruling his FMLA leave ran concurrently with the leave the state had already granted.
Judge McKibben disagreed, pointing out the medical leave law specifically allows the state to run his paid and unpaid leave concurrently.
McKibben also pointed out in his ruling that Hibbs received five weeks of catastrophic leave followed by another four and a half weeks of supplemental leave. And he rejected claims by Hibbs that he was not properly informed of how the state was interpreting the rules.
In any event, McKibben said, Hibbs was actually off work more than 12 additional weeks while he argued his case.
"Ultimately, Hibbs undeniably received a total amount of leave that far exceeded the 12 weeks guaranteed by the FMLA," he said.
After Hibbs refused to return to work despite all those notices, state officials fired him.
Hager said there are still several state-law issues in the case but that the legal team's focus is now on the Ninth Circuit appeal. He said he believes they have a good chance.
The same appellate court overturned the original state claim Hibbs couldn't sue because Nevada was immune as a sovereign state. The U.S. Supreme Court agreed with the appellate court and ordered the state to face the suit on its merits.
The state moved for summary judgment, arguing the state met terms of the law and Hibbs has no legal grounds to sue.
Hibbs and the attorney general's office have been in negotiations since the case was returned to McKibben's court, but were unable to reach a settlement. Hibbs, who is still unemployed, wanted $3.5 million to settle, according to one report. But he also wanted his job back.
Contact reporter Geoff Dornan at nevadaappeal@sbcglobal.net or 687-8750.
