Former state worker William Hibbs is back before the 9th U.S. Circuit Court of Appeals today, charging the state with sex discrimination for cutting short the time he took off to care for his severely injured wife.
Hibbs was fired when he refused to return to his job with the Human Resources Department. He said the federal Family Medical Leave Act entitled him to 12 weeks more leave to take care of her. The state argued his federal leave ran concurrently with his state leave and that Hibbs was out of time. He sued after the state fired him, charging a female worker would have been granted leave to care for a family member.
The lawsuit has been in the courts since 1997.
The state originally argued the case must be thrown out because it has sovereign immunity from such lawsuits under the 11th Amendment. U.S. District Judge Howard McKibben agreed and dismissed the suit. But both the 9th Circuit Court and the U.S. Supreme Court ruled for Hibbs. In a 6-3 opinion by Justice William Rehnquist, the Supreme Court said Congress had the right to exempt the Family Medical Leave Act from sovereign immunity.
And the opinion quoted testimony before Congress that states continue to rely on invalid gender stereotypes in administering leave benefits.
That sent the case back to district court to be heard on its merits and, again, Judge McKibben ruled for the state, granting summary judgment. He ruled the Family Leave law specifically allows the state to run his paid and unpaid medical leave concurrently.
And again Hibbs appealed to the 9th Circuit Court.
The case is scheduled for a hearing before a three-judge panel beginning at 9:30 a.m. today in San Francisco.
n Contact reporter Geoff Dornan at gdornan@nevadaappeal.com or 687-8750.
