author: J. STEVEN STAFFORD, J.,

text:
    Laura Jan MELTON v. BNSF RAILWAY COMPANY.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Jan. 19, 2010 Session.
    Feb. 22, 2010.
    Application for Permission to Appeal Denied by Supreme Court Aug. 25, 2010.

      William C. Spencer, John G. Wheeler, William C. Spencer, Jr., Memphis, TN, and Wayne L. Robbins, Jr., Fort Worth, TX, for the appellant, BNSF Railway Company.
    John A. Day, Laura W. Bishop, Brent-wood, TN, Don R. Riddle, Houston, TX and Tom R. Letbetter, George R. Payne, Houston TX, for the appellee, Laura Jan Melton.

      . Attorneys John A. Day and Laura Bishop did not participate in the trial of this case for the appellee, but first appear in the record on Appellee's Response to Appellant’s Rule 50.02, 52.02, and 59.02 Motion, and were the attorneys who appeared at oral argument. Attorneys Don R. Riddle, Tom R. Letbetter, and George R. Payne were the attorneys of record for the appellee during the trial proceedings and also participated in this appeal.

   OPINION

J. STEVEN STAFFORD, J.,

delivered the opinion of the Court,

in which ALAN E. HIGHERS, P.J., W.S. and DAVID R. FARMER, J., joined.

This is an appeal from a jury verdict in favor of the Appellee in a case based on the Federal Employer’s Liability Act, 45 U.S.C. § 51 el seq. Appellee filed this case as the widow and personal representative of her husband, who died as a result of injuries he sustained while working for the Appellant. Appellant appeals, arguing that the trial court erred in not granting it a directed verdict, in not granting its motion for new trial, in making several evi-dentiary rulings during the trial, and in not granting its motions for mistrial. We affirm the trial court’s denial of the Appellant’s motions for directed verdict, finding that the Appellee presented sufficient proof to create a question for the jury. However, finding that the trial court erred in allowing the Appellant’s expert to be questioned on a non-testifying expert’s deposition, and that the jury was more likely than not guided by prejudice, passion, and bias, we reverse the trial court’s decision denying Appellant’s motion for new trial. Further, finding material facts in dispute, we reverse in part and affirm in part the trial court’s decision on Appellant’s motion for summary judgment. Reversed in part, affirmed in part and remanded.

On July 11, 2006, Ronald Melton (“Mr. Melton”) was struck by a rail car in the BNSF Tennessee Yard and died as a result of his injuries. At the time of his death, Mr. Melton was employed by Appel-lee, BNSF Railway Company(“BNSF”), as a “carman.” Mr. Melton and his co-worker, John Carnell (“Mr. Carnell”) had been instructed to locate and repair a rail car with a bent pin lifter. The car needing repair was located on track 301, a protected track. Mr. Melton and Mr. Carnell went to track 2051 (also referred to as Track 51)(“Track 51”) to look for the rail car needing repair. The parties dispute whether Pat Vaiden (“Mr. Vaiden”), a Leadman for BNSF and Mr. Melton’s supervisor, sent Mr. Melton and Mr. Carnell to Track 51 or Track 301.

Track 51 is a “bad order” track, where cars needing repair are sent. The rail cars on track 51 are “humped” onto the track — that is they are moved down an incline onto track 51, passing through “retarders,” which reduce the speed, and then roll freely until they are stopped by the force of gravity or until they come into contact with another car. The section of track 51 at issue is located in an area of the yard that is sloped on either side and referred to as the “bowl.”

Mr. Melton drove a BNSF road truck to locate the rail car needing repair. He parked the road truck between track 301 and track 51 with the rear of the road truck facing south. Two cars were coupled together on track 51, rail car AOK-181556 (“AOK”) and rail car FURX-824206 (“FURX”), adjacent to where Mr. Melton parked the road truck. There were several other rail cars north of these two coupled rail cars. Upon exiting the road car, Mr. Melton told Mr. Carnell to be careful as track 51 was a “live” track. Mr. Melton and Mr. Carnell then walked in a northerly direction up track 51, looking for the rail car needing repair. When they could not find it, they decided to return to their truck to call Mr. Vaiden for more information. Upon reaching the truck, Mr. Melton went towards the driver’s side and Mr. Carnell went towards the passenger side. After the two parted, Mr. Carnell saw a rail car approaching from the south on track 51 and yelled to warn Mr. Melton. The car Mr. Carnell saw was CEFX-30498(“CEFX”), which had been humped onto track 51. CEFX collided with FURX causing FURX and AOK to move forward. AOK struck Mr. Melton, causing his injuries. The parties dispute where exactly Mr. Melton was in relation to his road truck and the track when he was struck.

Mr. Melton’s wife, Laura Jan Melton (“Mrs. Melton”), Appellee, filed this suit against BNSF on October 9, 2006, based on the Federal Employer’s Liability Act (“FELA”), 45 U.S.C. § 51 et seq. BNSF answered the complaint on November 14, 2006, denying that it was negligent and raising as a defense the contributory negligence of Mr. Melton. Mrs. Melton subsequently, with leave of the court, amended her complaint, and BNSF filed an amended answer, raising preemption as an additional defense. Again with permission of the court, Mrs. Melton filed a second amended complaint adding the allegation that BNSF violated the Code of Federal Regulations, 49 Part 213.37 on vegetation. BNSF filed a second amended answer denying such violation.

On January 17, 2008, BNSF filed a Motion for Summary Judgment contending that there were no disputed material facts and that Mrs. Melton’s claims were preempted. On February 21, 2008 the trial court heard argument on BNSF’s Motion for Summary Judgment. The trial court entered an order on March 6, 2008, granting BNSF’s motion on the issues of vegetation and ballast and denying the motion as to all other issues.

An approximately two and a half week jury trial was held in September 2008. The jury returned a verdict finding BNSF negligent and Mr. Melton not negligent. The jury awarded one million dollars in pecuniary damages and four million dollars in damages for Mr. Melton’s conscious pain, suffering, and mental anguish. A final judgment was entered on October 9, 2008, reflecting this decision.

BNSF filed a motion pursuant to Tennessee Rule of Civil Procedure 50.02, 52.02 and 59.02, asking the trial court to set aside the verdict and the judgment entered, and to enter judgment in accordance with BNSF’s previous motions for summary judgment and directed verdict. BNSF argued that the trial court had erred in not granting summary judgment as “discovery had revealed no factual basis to support any of plaintiffs thirty one separate claims,” and that the plaintiffs claims were preempted. BNSF further argued that the trial court had erred in not granting it a directed verdict at the close of Mrs. Melton’s proof and again when BNSF renewed it’s motion at the close of all proof, as Mrs. Melton has failed to present any evidence in support of her claims. Also, BNSF requested that the trial court, pursuant to Tennessee Rule of Civil Procedure 52.02, amend the judgment to reflect Mr. Melton’s own negligence and to reflect a “more appropriate award of damages.” BNSF also requested a new trial, contending that the verdict was excessive; the verdict indicated “passion, prejudice or caprice on the part of the jury”; the verdict was against the clear weight of the evidence; that the trial court made numerous other errors in ruling on certain questions asked and comments made by Mrs. Melton’s counsel and other evidentiary issues; and that the trial court erred in denying BNSF’s multiple motions for mistrial. In the alternative, BNSF asked for a remittitur.

The trial court held a hearing on BNSF’s motion on December 4, 2008. Pri- or to hearing oral arguments the trial court stated that it was denying BNSF’s motion for a new trial or to set aside the jury verdict. The trial judge went on to explain her decision. The trial court stated that the jury must not have believed the railroad’s witnesses and that the jurors probably believed that Mr. Yaiden had given Mr. Melton the understanding that he was going to “make the phone call to alert the powers that be, that Mr. Melton was going to be in that area.” The trial court went on to state, “[t]he Court having that rationale that the jurors most likely felt there was a cover up by the railroad that there was some cover up by the railroad, their processing of that information.” The trial court then allowed the parties to argue on the issue of remittitur. Prior to arguing, counsel for BNSF asked for clarification that the trial court was denying its motion for the reasons stated in the record, and the trial court stated, “Right, there was a cover up by the railroad.” The parties then proceeded to argue on remittitur. The trial court then granted BNSF a remittitur reducing the award of damages for pain and suffering by one million dollars, making a total award of three million dollars for pain and suffering and reducing the total award from five million dollars to four million dollars. An order was entered reflecting the trial court’s denial of BNSF’s motion and the grant of remittitur on January 9, 2009. Mrs. Melton filed a Notice of Acceptance of Remittitur Under Protest on January 12, 2009. The trial court entered an amended final judgment reflecting the re-mittitur on January 16, 2009. BNSF timely filed an appeal on January 30, 2009.

On appeal BNSF raises the following issues as we restate them:

1. Whether the trial court erred in denying BNSF’s motions for directed verdict and motion for judgment in accordance with the motion for directed verdict?

2. Whether the trial court erred in denying the defendant’s motion for new trial?

3. Whether the trial court erred in the admission of evidence, warranting a new trial?

4. Whether the trial court erred in refusing to declare a mistrial?

Mrs. Melton raises one issue for our review:

1. Whether the trial court erred in granting BNSF summary judgment on the issues of vegetation and ballast?

Motion for Directed Verdict

BNSF first contends that the trial court erred when it denied BNSF’s motion for directed verdict at the close of Mrs. Melton’s evidence and then when BNSF renewed its motion at the close of all the evidence. The United States Supreme Court has consistently applied the federal standard in reviewing whether a directed verdict should be granted in a FELA case tried in state court. Blackburn v. CSX Transp., Inc., No. M2006-01352-CQA-R10-CV, 2008 WL 2278497, *10, 2008 Tenn.App. LEXIS 336, *27 (Tenn.Ct.App.2008)(relying on Rogers v. Missouri Pacific R.R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957); Lavender v. Kum, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916 (1946); and Brady v. Southern Ry. Co., 320 U.S. 476, 64 S.Ct. 232, 88 L.Ed. 239 (1943)). In determining whether to grant a directed verdict, the trial court must determine “whether, with reason, the conclusion may be drawn that the negligence of the employer played any part at all in the injury” of the employee. Rogers, 352 U.S. at 507, 77 S.Ct. 443. Only “where fair-minded jurors cannot honestly differ whether fault of the employer played any part in the employee’s injury,” may the trial court enter a directed verdict. Id. at 510, 77 S.Ct. 443.

In reviewing the trial court’s decision not to grant a directed verdict, we use the same standard the trial judge was required to use, and must determine whether sufficient evidence was presented to raise a material issue of fact. White v. Burlington Northern & Santa Fe Ry. Co., 364 F.3d 789, 794 (6th Cir.2004). In making this determination, we must draw all reasonable inferences in favor of the non-moving party. Id. We are not to make any credibility determinations or weigh the evidence, and “must disregard all evidence favorable to the moving party that the jury is not required to believe.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).

When making a claim under FELA, a plaintiff must prove the traditional common-law elements of negligence: duty, breach, foreseeability, and causation. Adams v. CSX Transp., Inc., 899 F.2d 536, 539 (6th Cir.1990). BNSF has a duty to provide its employees with a reasonably safe workplace under FELA. Id. As previously stated by this court:

This does not mean that the railroad has the duty to eliminate all workplace dangers, but it does have the “duty of exercising reasonable care to that end.” Van Gorder v. Grand Trunk W. R.R., Inc., 509 F.3d 265, 269 (6th Cir.2007) cert. denied, — U.S. -, 129 S.Ct. 489, 172 L.Ed.2d 356 (2008)(citing Baltimore & Ohio S.W.R. Co. v. Carroll, 280 U.S. 491, 496, 50 S.Ct. 182, 74 L.Ed. 566 (1930)). “A railroad breaches its duty to its employees when it fails to use ordinary care under the circumstances or fails to do what a reasonably prudent person would have done under the circumstances to make the working environment safe.” Id. (citing Tiller v. Atl. C.L.R. Co., 318 U.S. 54, 67, 63 S.Ct. 444, 87 L.Ed. 610 (1943); Aparicio v. Norfolk & W. Ry., 84 F.3d 803, 811 (6th Cir.1996)). In other words, “a railroad breaches its duty when it knew, or by the exercise of due care should have known that prevalent standards of conduct were inadequate to protect the plaintiff and similarly situated employees.” Id. at 269-70 (internal quotations omitted).

Jordan v. Burlington Northern Santa Fe Ry. Co., No. W2007-00436-COA-R3-CV, 2009 WL 112561, *8 (Tenn.Ct.App.2009).

We have reviewed the record in this case and find that the trial court did not err in refusing to grant BNSF a directed verdict either at the close of Mrs. Melton’s evidence or at the close of all the evidence. In support of her case, Mrs. Melton offered the testimony of Mr. Car-nell, that track 51 and 301 were an arm’s distance apart, that he and Mr. Melton were not foul of the track, and that in his opinion cars should not be humped onto track 51 when the men are working in the bowl. Mr. Carnell also testified that he thought he heard Mr. Vaiden send them to track 51. Mrs. Melton also presented proof that the supervisor was the one required to call the yardmaster to block out the tracks where men were working and Mr. Vaiden, the supervisor, admitted having not called the yardmaster himself. Further, Mrs. Melton presented evidence that the General Code of Operating Rules required that all unattended cars be secured. The jury heard evidence that the AOK was neither coupled to another car, nor had a brake applied to it. Additionally, there was testimony that some employees believed in a general rule that it was safe as long as the employee was clear of the rails. Mrs. Melton further elicited testimony that BNSF had a company initiative that cars were not to couple at a speed faster than four miles per hour.. Also, the jury heard testimony from a BNSF employee that there had been maintenance issues with the retarders, the devices used to slow the rail cars, on track 51. While BNSF presented its own evidence attempting to rebut this and other evidence of negligence, it is not our duty nor the trial court’s duty to weigh the evidence or make decisions regarding the credibility of the evidence. Drawing all reasonable inferences in favor of Mrs. Melton and disregarding all evidence favorable to BNSF that the jury was not required to believe, we find that she presented sufficient evidence to raise a question for the jury. Accordingly, we affirm the decision of the trial court denying BNSF’s motion for directed verdict and its renewed motion.

Motion for New Trial

BNSF next submits that the trial court erred in denying its Motion for a New Trial. As previously held by this Court, we are to apply the federal standard to determine whether to grant a new trial in a FELA case. Blackburn v. CSX Transp., Inc., No. M2006-01352-COA-R10-CV, 2008 WL 2278497, *11, 2008 Tenn.App. LEXIS 336, *29 (Tenn.Ct.App.2008). Under the federal standard, the trial court “ ‘has the power and duty to order a new trial whenever, in its judgment, this action is required to prevent an injustice.’ ” Id. at *5, 2008 Tenn.App. LEXIS 336, at *13 (quoting 11 Wright, Miller & Kane, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2d § 2805 (1995)). “Common grounds for granting a new trial include the verdict is against the clear weight of the evidence, a prejudicial error of law, or misconduct affecting the jury.” Id. We review the trial court’s decisions on motions for new trial on an abuse of discretion standard. Id. at *16, 2008 Tenn.App. LEXIS 336, at *46; see also Toth v. Yoder, 749 F.2d 1190, 1197 (6th Cir.1984). “Abuse of discretion is defined as a definite and firm conviction that the trial court committed a clear error of judgment.” Logan v. Dayton Hudson Carp., 865 F.2d 789, (6th Cir.1989).

Evidentiary Rulings

BNSF’s contends that it was prejudiced by the erroneous admission of evidence and that it is, therefore, entitled to a new trial. Decisions regarding the admissibility of evidence rest within the sound discretion of the trial court. Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 442 (Tenn.1992) Accordingly, we review the trial court’s decision under an abuse of discretion standard. State Dep’t of Transp. v. Veglio, 786 S.W.2d 944, 948 (Tenn.Ct.App.1989). The abuse of discretion standard requires us to consider “(1) whether the decision has a sufficient evi-dentiary foundation, (2) whether the trial court correctly identified and properly applied the appropriate legal principles, and (3) whether the decision is within the range of acceptable alternatives.” State ex rel. Vaughn v. Kaatrude, 21 S.W.3d 244, 248 (Tenn.Ct.App.2000). “While we will set aside a discretionary decision if it rests on an inadequate evidentiary foundation or if it is contrary to the governing law, we will not substitute our judgment for that of the trial court merely because we might have chosen another alternative.” Id. If this Court finds error, we will only set aside the final judgement upon a finding that the error “more probably than not affected the judgment or would result in prejudice to the judicial process.” Tenn. R.App. P. 36(b).

BNSF submits that it was prejudiced when the trial court allowed Mrs. Melton’s counsel to read from and refer to the deposition of Foster Peterson (“Peterson”) during cross examination of BNSF’s expert, Dr. Elaine Serina (“Dr. Serina”). Peterson was an expert hired by BNSF after the accident to do an investigation. He did not testify at trial and his deposition was not introduced into evidence. BNSF argues that questioning Dr. Serina on Peterson’s deposition was improper as Dr. Serina did not rely on the deposition to form her opinion in this case.

In response, Mrs. Melton citing Steele v. Ft. Sanders Anesthesia Group P.C., 897 S.W.2d 270 (Tenn.Ct.App.1994), argues that an expert may be questioned about any information and data reviewed by that expert. In Steele, the testifying expert “acknowledged that he ha[d] read and considered [the non-testifying expert’s] discovery deposition when forming his opinion. He testified that he read and considered [the] deposition, but did not rely on it. He stated he rejected [it].” Id. at 275. This Court held that cross examination of the expert on the non-testifying expert’s deposition was proper because the expert had to rely on the deposition at issue for the “facts and data upon which he based his opinion.” Id. As this court stated, “[w]e are of the opinion that full cross examination of an expert can not and should not be curtailed simply by having the expert deny that he relied on any materials he reviewed and considered with which he disagrees.” Id. at 277.

At trial, Dr. Serina testified as to her conclusion on the cause of Mr. Melton’s injuries. She concluded, using the shape and measurements of the wheel of the rail car along with the rail, Mr. Melton’s body dimensions, and Mr. Melton’s injuries, that he was run over by the rail car. Dr. Serina testified that the imprint found on the shoulder of Mr. Melton matches the width of the rail. She explained that the flange of the wheel would explain the cut on his armpit large enough to see muscle coming out, and the fracture to the thighbone. In response to a question about amputation, Dr. Serina explained that the skin would stretch around the flange of the wheel, but the flange would cut through bone and muscle. This, she explained is why there was not a complete amputation, but as Mr. Melton’s injuries reflect, stretching of the skin and near amputation as the bone and muscle was cut. Further, Dr. Serina testified that the abrasions on his chest and torso were caused by the sideframes of the rail car moving over Mr. Melton. She testified that Mr. Melton would not have these injuries if he had not been on the rail. Dr. Serina further explained that it was not her job to determine where Mr. Melton was in relation to the AOK car, nor the speed of the rail cars.

Peterson testified in his deposition about an investigation he conducted after the accident, at the instruction of BNSF’s attorney. Peterson’s testimony apparently included his conclusion as to the speed at which he believed the rail cars were moving, his conclusion as to how far Mr. Melton was from the AOK car prior to it moving, and his measurements of Mr. Melton’s road truck.

Upon review of the record, we find Steele distinguishable from the case before us for several reasons. First, there is no indication in the record that Dr. Serina considered Peterson’s deposition for purposes of her opinion. Dr. Serina did testify that she read the Peterson deposition along with other material provided to her in order to understand what happened in the case. However, unlike in Steele, Dr. Serina did not rely on the deposition for the facts and data she used in forming her opinion as to how Mr. Melton was injured. Mrs. Melton’s counsel actually asked Dr. Serina, “Isn’t it true, Dr. Serina, that you had to rely upon the basic investigative facts that Foster Peterson provided, because you did not have any of your own?” Dr. Serina responded that she reviewed it, but did not rely on it for her opinion, indicating that her knowledge of the facts in the deposition was not necessary for her to form her opinion. As Dr. Serina stated, her opinions were based on the injuries to Mr. Melton, the geometry of the rail car and the body dimensions of Mr. Melton. In fact, Dr. Serina testified that she did not even receive the deposition at issue until after she wrote her report.

Tennessee Rule of Evidence 705 provides that an expert may be required to disclose the underlying facts or data of her opinion on cross examination. In Steele, this Court was faced with an expert who admitted reading and considering a deposition to obtain the facts and data upon which his opinion was based. The Steele expert denied relying on the deposition, contending that he rejected it. That is not the situation we have before us. While we do not want to create a situation where an expert may simply deny that he relied on material provided to him in forming his opinion in order to curtail cross-examination, there must be some indication that the material upon which cross-examination is sought provides, at least in part, the underlying facts and data upon which the expert’s opinion is based. In this case, there is simply no indication that any material from the Peterson deposition, while read, underlies Dr. Serina’s opinion. Therefore, we find that cross examination based on the Peterson deposition was improper.

Assuming, arguendo that cross examination based on the Peterson deposition was proper because Dr. Serina read the deposition, this Court still finds the situation distinguishable from Steele and finds the cross examination improper. In Steele, the plaintiffs counsel was attempting to use the deposition to impeach the testifying expert. Steele, 897 S.W.2d at 278. In this case it appears abundantly clear that Mrs. Melton’s counsel was not attempting to impeach Dr. Serina with the Peterson deposition, but instead was attempting to utilize Dr. Serina to present the Peterson deposition testimony to the jury. Mrs. Melton’s counsel asked Dr. Serina about the speed of the rail car at issue and how long Mr. Melton would have to react if the AOK car was moving at eight miles per hour. Prior to this, the only evidence of the speed of the AOK car was the testimony of Ryan Schoener that the CEFX car, the rail car initially humped onto track 51, was going 10.7 miles per hour as measured at a switch an undetermined distance from the accident. When BNSF objected to this question, counsel for Mrs. Melton explained that Peterson had testified that the rail car was moving at eight miles per hour. The trial court overruled the objection and after another objection concerning whether Dr. Serina relied on the Peterson deposition, cross examination continued. Counsel for Mrs. Melton then read to Dr. Serina Peterson’s deposition where he testified that the rail car was moving at eight miles per hour and counsel commented that Peterson had testified that the AOK car would be going at essentially the same speed. However, the speed of the car and the amount of time Mr. Melton had to react had nothing to do with Dr. Serina’s opinion that Mr. Melton’s injuries were caused by being run over by a rail car and any such questions were completely irrelevant. Dr. Serina testified that she did not have an opinion as to speed. Because this line of questioning was not impeachment and because the Peterson deposition had not been entered into evidence, this line of questioning was improper.

Finally, this situation is also distinguishable from Steele as the Steele court found the cross-examination at issue to be immaterial. Id. at 278. The Steele court explained that the questioning at issue was only heard for a short period of time during a two and a half week trial, was only used for impeachment after a strong cautionary instruction was given to the jury, was cumulative to direct evidence in the record, and it was not referenced during closing arguments. The case before this Court presents a starkly different situation. The cross examination based on the Peterson deposition, including the attorneys’ objections, spans the majority of approximately one hundred pages of transcript. The questioning was not used for impeachment, but rather as a means to place before the jury Peterson’s estimate of how far Mr. Melton was from the AOK car, the speed of the rail cars and the measurements of the road truck taken by Peterson. None of these matters were related to the opinion and testimony of Dr. Serina. There was no instruction given to the jury concerning the use of Peterson’s deposition. Additionally, counsel for Mrs. Melton told the jury in closing arguments, “you folks can figure out how far does that AOK car move in a second if its going eight miles an hour,” even though the only evidence that the car was moving at eight miles an hour came from Peterson’s deposition. Accordingly, we can not find that the use of Peterson’s deposition by Mrs. Melton’s counsel to cross examine Dr. Ser-ina was immaterial.

This court has previously held that, when an expert bases her opinion on inadmissible facts, the trial court should either prohibit the jury from hearing the testimony or deliver a cautionary instruction that the jury is not to use the information as substantive evidence. Benson v. Tenn. Valley Electric Co-op., 868 S.W.2d 630, 641 (Tenn.Ct.App.1993). Peterson’s deposition was not entered into evidence and appears to be inadmissible hearsay. A deposition is often admissible as an exception to the hearsay rule. See Tenn. R. Evid. 804. However, there is no indication or argument in the record that Peterson was unavailable as defined by our rules of evidence. Here the trial court repeatedly allowed questioning on Peterson’s deposition, which included reading the deposition to the jury and summarizing what Peterson testified to, but did not deliver a cautionary instruction to the jury regarding its use of Peterson’s deposition. In fact, the trial court did eventually find the deposition to be hearsay, but not until after numerous questions had been asked and answered, and objections made. Consequently, we find that the trial court erred in allowing Mrs. Melton’s counsel to use, comment on, and read from Peterson’s deposition when cross examining Dr. Seri-na.

As stated above, we will not set aside a final judgment unless the error “more probably than not affected the judgment or would result in prejudice to the judicial process.” Tenn. R.App. P. 36(b). We are mindful of the respect to be given to a jury verdict and are hesitant to set the verdict of the jury aside. However, upon reviewing the record, we find that due to the pervasiveness of this line of questioning in the record, the fact that counsel referred to the estimate of eight miles an hour in his closing argument, the fact that the theory that the rail car was moving at eight miles an hour does not appear anywhere else in evidence, the lack of a cautionary instruction to the jury, and because Mrs. Melton’s claim was based in part on the allegation that BNSF was negligent with regard to the speed of the rail car, we find that the error “more probably than not affected the judgment or would result in prejudice to the judicial process.” Consequently, we find that the trial court erred in not granting a new trial based on the evidentiary errors.

Prejudice

BNSF further submits that it is entitled to a new trial because the jury was guided by “bias, passion, and prejudice.” BNSF contends that the jury was prejudiced by Mrs. Melton’s counsel’s continued questions and comments on inadmissible evidence, prior accidents, BNSF’s post-accident investigation which the trial court held to be protected work product, and suggestions of concealment and cover-up by BNSF. “Misconduct by an attorney that results in prejudice may serve as a basis for new trial. The burden of showing prejudice rests with the party seeking the new trial, and [the trial courts] have broad discretion in deciding whether to grant a motion for new trial.” Maday v. Public Libraries of Saginaw, 480 F.3d 815, 819 (6th Cir.2007) (citations omitted). To be entitled to a new trial on the basis that the trial was unfair, the moving party must show that the jury was influenced by prejudice or bias. Holmes v. City of Massillon, Ohio, 78 F.3d 1041, 1045 (6th Cir.1996). This Court must “determine ‘whether there is a reasonable probability that the verdict of the jury has been influenced by improper conduct.’ ” Maday, 480 F.3d at 819 (citations omitted). The reviewing court must consider the totality of the circumstances, considering the number of comments, the nature of the comments, possible relevance to the issues, and the manner in which the parties and the court treated the comments. Id.

Upon review of the record, we find numerous instances where Mrs. Melton’s counsel referred to inadmissible evidence and BNSF’s post-accident investigation, and inferred that BNSF was concealing evidence. In his opening statement for Mrs. Melton, her counsel told the jury that BNSF had hired an expert that the jury would likely not hear from, and that counsel had subpoenaed some evidence from BNSF, which had not been provided. Upon objection by BNSF, the court admonished counsel and warned that too many more mistakes would result in a mistrial. In questioning Charles Trailor (“Mr. Trai-lor”), head claims agent for BNSF, counsel referenced interrogatories requesting statements and then asked if Mr. Trailor was aware they had only received some statements the day before. Mr. Trailor was also asked about the number of times Everett Gibson, an attorney for BNSF, had been hired to defend BNSF and the number of times BNSF had hired Peterson to investigate accidents, despite the trial court’s previous ruling that the post-accident investigation was not admissible. BNSF objected and the court sustained the objection. The parties then entered into a stipulation that there had been an investigation after the accident by BNSF. When questioning Grady Carr (“Mr. Carr”), yardmaster for BNSF, Mrs. Melton’s counsel asked Mr. Carr if Mrs. Melton’s counsel had been “secluded and prevented from talking with [him].” BNSF objected and the Court admonished counsel for Mrs. Melton. Then, when questioning Roy Logan (“Mr. Logan”), a BNSF car inspector, Mrs. Melton’s counsel referenced a prior accident Mr. Logan had and a claim he made against BNSF. Counsel then asked Mr. Logan if BNSF ever took an inconsistent position with the rule that foul of the track was four feet of the rails. BNSF objected and, in sustaining the objection, the trial court stated that, had Mr. Logan answered, it would have been a mistrial. When Ryan Schoener (“Mr. Schoener”), an employee of BNSF, testified that the speed limit on the track was twenty miles per hour, Mrs. Melton’s counsel challenged Mr. Schoener to produce the timetables from the stand. BNSF objected. The trial court sustained the objection, noting that discovery disputes were not to be placed before the jury, but also noting that BNSF probably should have provided the timetables. In examination of Andrew Corbet, a signal maintainer for BNSF, Mrs. Melton’s counsel referenced a letter from BNSF’s counsel sent during discovery, discussing missing attachments. Before making this reference during examination, Mrs. Melton’s counsel had asked the court if he could inform the jury as to where he had obtained the exhibit so that the jury would be aware that some parts were not provided. The trial court denied this request, explaining to counsel that discovery disputes needed to have been brought to the court prior to trial and not litigated in front of the jury. These are only some of the specific objections to improper questions and comments. The cumulative effect of these and other occurrences in the record indicate that the jury may have been guided by bias, prejudice, or passion.

Further and more importantly, as this Court has previously stated, “[i]n deciding a motion for new trial, the ... judge is not bound to give any reasons, any more than the jury itself is bound to do so.” Bellamy v. Cracker Barrel Old Country Store, No. M2008-00294-COA-R3-CV, 2008 WL 5424015 at *3 (Tenn.Ct.App.2008)(rev’d on other grounds) (citations omitted). If the trial judge makes no comments, we must assume that the trial judge properly performed her role. Id. For these reasons, we suggest, as we have previously, that “when a trial judge overrules a motion for new trial, ... [she] simply state that [she] has reviewed the evidence relevant to the issues and approves the verdict. Anything more unnecessarily runs the risk of an unwanted new trial.” Id. In the unfortunate circumstance that the trial judge fails to follow our advice, and makes comments concerning the ruling on a motion for new trial, this Court is forced to consider those comments and determine whether the trial judge was satisfied with the verdict. Id. “If it appears from any reasons assigned or statements made in passing on a motion for new trial that the judge was not actually satisfied with the verdict, it is the duty of the appellate courts to grant a new trial.... ” Id. (citations omitted).

In this case, the trial judge denied the motion for new trial and then proceeded to explain why she was denying the motion. The trial judge first explained her rationale, “that the jurors most likely felt there was a cover up by the railroad that there was some cover up by the railroad, their processing of that information,” without questions or comments from counsel. When asked for clarification for the record, the following occurred:

Mr. Wheeler (counsel for BNSF): Just so the record is clear we’ve been ready to argue all of the motions before the Court. We understand and accept the Court’s rulings. As I understand the Court has ruled on our Rule 50 Motion for A Judgment Notwithstanding A Verdict?
The Court: That’s exactly right.
Mr. Wheeler: And has ruled on the Rule 59 Motion for A New Trial.
The Court: That’s right, denying those motions.
Mr. Wheeler: On the basis that the Court has given in the record[ ] today?
The Court: Right, there was a cover up by the railroad.

It appears to this Court from the comments by the trial judge, that the trial judge firmly believed that the jury’s verdict was based on its belief that BNSF was involved in a conspiracy and coverup to hide the truth. In reviewing the trial court’s decision, this Court must consider her comments. Because of her belief that the jury’s verdict was based on a conspiracy or coverup by BNSF, the trial judge should not have been satisfied with the verdict and should have granted a new trial. The theory that questions and comments by Mrs. Melton’s counsel suggested that BNSF conspired to coverup the truth or hide evidence was a basis for BNSF’s motion for new trial and subsequent appeal. The trial court apparently agreed, yet denied the motion for new trial. After reviewing the record, we find that the numerous questions and comments by counsel for Mrs. Melton referring to hidden evidence; an investigation by BNSF, which the trial court had already ruled inadmissible as work product; and other suggestions of coverup and concealment by BNSF, support the trial court’s belief. In considering the totality of the circumstances, we find that there were numerous inappropriate questions and comments by counsel for Mrs. Melton, and that these questions continued despite objections from BNSF and in some instances after the trial court sustained the objections and warned counsel. Also, we find that there were few curative instructions to the jury. Finally, we find that the questions and comments regarding hidden evidence and an investigation by BNSF had absolutely no relevance to the issues before the jury, and the trial judge found that the jury believed BNSF had conspired and attempted to coverup. Consequently, we find there is a reasonable probability the verdict was influenced by improper questions and comments, and that the trial court abused her discretion in not granting a new trial after finding that the jury’s verdict was based on its belief that BNSF was involved in a conspiracy and coverup. Accordingly, BNSF is entitled to a new trial.

Summary Judgment

Both parties submit that the trial court erred in ruling on the BNSF’s Motion for Summary Judgment. Mrs. Melton argues that the trial court erred in granting BNSF summary judgment on the issues of vegetation and ballast. BNSF argues that the trial court erred in not granting it summary judgment on the remaining issues. In determining whether a party in an FELA case is entitled to summary judgment Tennessee Rule of Civil Procedure 56 applies. Mills v. CSX Transportation, 300 S.W.3d 627 (Tenn.2009).

When a motion for summary judgment is made, the moving party has the burden of showing that “there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Tenn. R. Civ. P. 56.04. The moving party may accomplish this by either: (1) affirmatively negating an essential element of the non-moving party’s claim; or (2) showing that the non-moving party will not be able to prove an essential element at trial. Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 8-9 (Tenn.2008). However, “[i]t is not enough for the moving party to challenge the nonmoving party to ‘put up or shut up’ or even to cast doubt on a party’s ability to prove an element at trial.” Id. at 8. If the moving party’s motion is properly supported, “The burden of production then shifts to the nonmoving party to show that a genuine issue of material fact exists.” Id. at 5(citing Byrd v. Hall, 847 S.W.2d 208, 215(Tenn.1993)). The non-moving party may accomplish this by: “(1) pointing to evidence establishing material factual disputes that were overlooked or ignored by the moving party; (2) rehabilitating the evidence attacked by the moving party; (3) producing additional evidence establishing the existence of a genuine issue for trial; or (4) submitting an affidavit explaining the necessity for further discovery pursuant to Tenn. R. Civ. P., Rule 56.06.” Martin v. Norfolk Southern Railway Co., 271 S.W.3d 76, 84 (Tenn.2008) (citations omitted).

A trial court’s decision to grant a motion for summary judgment presents a question of law. Our review is therefore de novo with no presumption of correctness afforded to the trial court’s determination. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.1997). “This Court must make a fresh determination that the requirements of Tenn. R. Civ. P. 56 have been satisfied.” Mathews Partners, LLC v. Lemme, No. M2008-01036-COA-R3-CV, 2009 WL 3172134 at *3 (citing Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.1997)).

When reviewing the evidence, we must determine whether factual disputes exist. In evaluating the trial court’s decision to grant summary judgment, we review the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in the nonmoving party’s favor. Stovall v. Clarke, 118 S.W.3d 715, 721 (Tenn.2003). If we find a disputed fact, we must “determine whether the fact is material to the claim or defense upon which summary judgment is predicated and whether the disputed fact creates a genuine issue for trial.” Mathews Partners, 2009 WL 3172134 at *3 (citing Byrd, 847 S.W.2d at 214). “A disputed fact is material if it must be decided in order to resolve the substantive claim or defense at which the motion is directed.” Byrd, 847 S.W.2d at 215. A genuine issue exists if “a reasonable jury could legitimately resolve the fact in favor of one side or the other.” Id.

Vegetation and Ballast Claims

Mrs. Melton submits on appeal that the trial court erred in granting BNSF summary judgment on the issue of vegetation and ballast as there were material issues of fact in dispute. In response, BNSF contends that the trial court correctly found that “submission of said claims to a jury would not be probative.” BNSF claims that the basis for its motion was that the claims of improper vegetation and ballast were preempted, and that the plaintiff did not present any proof that the vegetation and ballast played any role in the accident.

To be entitled to summary judgment, BNSF must either: (1) affirmatively negate an essential element of the non-moving party’s claim; or (2) show that the non-moving party will not be able to prove an essential element at trial. Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 8-9 (Tenn.2008). It is not enough for BNSF to challenge Mrs. Melton to a “put up or shut up,” by claiming she will not be able to prove her claim. Id. at 8. However, that appears to be what BNSF attempted to do and the reason the trial court granted its motion. As stated by BNSF in its statement of undisputed facts, “Plaintiff has presented no evidence or other proof that the accident was proximately caused by any negligence of BNSF.” In its memorandum in support of its motion, BNSF states, “the plaintiff has produced no documentation, testimony or other credible proof which demonstrates BNSF is liable to her for any damages whatsoever.” In no way did BNSF affirmatively negate an element of Mrs. Melton’s claim or come forward with its own evidence demonstrating that Mrs. Melton would not be able to prove an element of her claim

Because BNSF did not make the proper showing, the burden to demonstrate a material issue of fact never shifted to Mrs. Melton. Despite the fact that the burden did not shift, Mrs. Melton did come forward with evidence indicating that there were material issues of fact in dispute. Specifically, Mrs. Melton provided the trial court with depositions which indicate that there were material issues of fact in dispute. Jason Dowdy, a roadmaster for BNSF, testified that, if track inspectors had seen the vegetation as it existed at the time of the accident, they should have taken the track out of service as the vegetation was outside the crossties. Carl Kinder, a BNSF employee, testified in his deposition that on the day of the accident he observed weeds thirteen or fourteen inches tall along track 51. Roy Logan (“Mr. Logan”), a carman for BNSF, testified that he had seen and reported weeds in the area of the accident, and that he reported them because the vegetation would cause problems for employees walking. Mr. Logan further testified that in his opinion, BNSF would be negligent if it did not address the vegetation. Mr. Logan also testified that he had seen big rocks in the area which could create a tripping hazard, and he had reported this to BNSF. Richard Renner (“Mr. Ren-ner”), a BNSF employee, also testified that federal regulations required the vegetation be controlled, that BNSF required employees to report vegetation issues, and that if BNSF inspectors had seen the vegetation depicted in photographs the track should have been taken out of service. Mr. Renner further testified that improper ballast was a tripping hazard, and that BNSF required ballast in the yard to be between one-half inch and one inch. Mr. Schoener, a terminal manager for BNSF, testified that weeds or grass could be a stumbling hazard. Daniel Tucker, a BNSF maintenance employee testified that the weeds in the picture he was provided, were not in proper condition and showed ballast as large as two inches. William Dunavant, a leadman for BNSF, testified that ballast of unequal size could make you feel like you were walking on marbles. Accordingly, this Court finds that, while BNSF never shifted the burden to Mrs. Melton requiring her to present proof of disputed facts, the record shows that there are material issues of fact in dispute which make the grant of summary judgment to BNSF on the issues of vegetation and ballast improper.

However, this does not end the required analysis as BNSF claims that the vegetation and ballast claims are preempted. The Sixth Circuit Court of Appeals has recently held that, “the uniformity demanded by the [Federal Railway Safety Act, 49 U.S.C. § 20101, et seq. (“FRSA”) ] can be achieved only if federal rail safety regulations are applied similarly to a FELA plaintiffs negligence claim....” Nickels v. Grand Trunk Western R.R., Inc., 560 F.3d 426, 430 (6th Cir.2009)(citing Lane v. R.A. Sims, Jr., Inc., 241 F.3d 439, 443 (5th Cir.2001); and Waymire v. Norfolk & W. Ry. Co., 218 F.3d 773, 776 (7th Cir.2000)). Thus, if there is a federal regulation prescribed under FRSA, plaintiffs claims are preempted. As noted by the Nickels court, the Secretary of Transportation has promulgated a regulation on ballast and, therefore, negligence claims based on ballast may be preempted. Id. (citing 49 C.F.R. § 213.103). Similarly, there is also a regulation under FRSA on vegetation and claims based on vegetation consequently, may also be preempted. See 49 C.F.R. § 213.37.

However, to be preempted the railroad must be in compliance with the federal regulations. Michael v. Norfolk Southern Ry. Co., 74 F.3d 271, 273 (11th Cir.1996). If the railroad is not in compliance, then the claim is not preempted. Id. While preemption is a question of law, Nickels, 560 F.3d at 429, whether the railroad was complying with the federal regulation at issue is a question of fact. Id. For purposes of summary judgment, BNSF has not affirmatively shown that it was in compliance with the federal regulations. Therefore, BNSF is not entitled to summary judgment on the issues of vegetation and ballast based on BNSF’s defense of preemption. Consequently, we find that the trial court erred when it granted BNSF summary judgment on the issues of vegetation and ballast.

Speed

BNSF submits that the trial court erred in not granting it summary judgment on the issue of speed as the claim is preempted because speed is governed by 49 C.F.R. § 213.9. The trial court denied BNSF’s motion for summary judgment on the issue of speed. The order entered does not reflect a reason for this decision, but during the hearing, the trial court stated that Mrs. Melton’s claim of negligence based on speed was not preempted.

The trial court’s decision on preemption, as a matter of law, was error. As stated in Nickels, uniformity demanded by FRSA can only be achieved if the federal rail safety regulations are applied to FELA claims. Nickels, 560 F.3d at 430. While the Nickels court was addressing a ballast issue, we believe the reasoning of Nickels is analogous to a claim for negligence based on speed. In fact, the Nickels court relied on the reasoning from cases in two other circuits, which found that FELA claims based on speed were preempted. Id. However, question of facts still exist as to the speed limit of track 51 and whether the rail car was within that speed limit. We note that Mrs. Melton argues that BNSF had an internal policy that the rail cars only be moving at four miles per hour. However, for the purposes of preemption, internal regulations are irrelevant. Michael, 74 F.3d at 274; see also St. Louis Southwestern Ry. Co. v. Pierce, 68 F.3d 276, 278 (8th Cir.1995). For purposes of summary judgment, BNSF must demonstrate that there are no disputed facts as to the speed limit of track 51 based on 49 C.F.R. § 213.9, and the speed at which the rail car was moving. BNSF must also show that the rail car was within federal regulations. Because there are disputed material facts as to the speed limit and the speed of the car, we affirm the trial court’s denial of summary judgment on the issue of speed.

Conclusion

In sum, we affirm the trial court’s denial of a directed verdict. However, we reverse the trial court’s denial of BNSF’s motion for new trial. Also, we reverse the trial court’s grant of summary judgment to BNSF on the issues of vegetation and ballast, and affirm the trial court’s denial of summary judgment on all remaining issues. All other issues are pretermitted. We remand to the trial court for further proceedings consistent with this opinion. Costs of this appeal are taxed one-half to Appellant, BNSF Railway Company, and it surety, and one-half to Appellee, Laura Jan Melton for which execution may issue if necessary.

      . A protected track is one that has been blocked so that cars will not be moving on it.

      . Coupled refers to when two rail cars are connected together.

      . BNSF's Motion for Summary Judgment was heard and decided by Judge Bailey. It appears from the record that the case was subsequently transferred to Judge Robilio. Although the parties in their briefs reference a previous mistrial, the record does not indicate a reason for the transfer.

      . Ballast refers to the rocks and gravel in and around the tracks.

      . As required by Tenn. R.App. P. 3, all issues raised on appeal were first raised in the motion for new trial.

      . The definition of "foul of the track” is disputed by the parties, but refers to the distance from the track one must be in order to be safe and clear from moving rail cars. BNSF asserts that foul of the track is four feet from the rails.

      . It is not clear from the record whether Peterson's deposition was an evidentiary deposition or a discovery deposition.

      . Tenn. R. Evid. 705 reads:
      The expert may testify in terms of opinion or inference and give reasons without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross examination.

      . We note that BNSF's brief indicates that the deposition testimony was put on a screen and shown to the jury. The record, however, does not indicate this.

      . We note that Mr. Trailor is referred to as Troy Traylor in BNSF’s brief. We conclude Troy and Charles are the same person despite the differences in spelling of the last name because Mr. Trailor stated his name on the record as Charles Troy Trailor.

      . We further note that when ruling on the motion for new trial, the trial court also made comments on the evidence that, after reviewing the record, we find to be incorrect. The trial court stated that there was evidence that Mr. Vaiden had told Mr. Melton that he would alert "the powers that be" that Mr. Melton and Mr. Carnell would be working on track 51. While evidence was presented and argument was made, that Mr. Vaiden had a duty to notify the yardmaster that Mr. Melton was working on track 51, Mr. Vaiden unequivocally testified that he did not notify the yardmaster and never testified that he told Mr. Melton he had. Further, the trial court stated that the evidence showed that Mr. Vai-den was an EMS and did nothing to help Mr. Melton. We find that the evidence does not show that Mr. Vaiden was an EMS, but that Mr. Vaiden had CPR training and that he testified that Mr. Melton was conscious and breathing, and therefore not in need of CPR.


source: Caselaw Access Project

author: Justice WILLETT

license: Public Domain

text:
    The UNIVERSITY OF TEXAS AT EL PASO, Petitioner, v. Alfredo HERRERA, Respondent.
    No. 08-1049.
    Supreme Court of Texas.
    Argued March 25, 2010.
    Decided July 2, 2010.

      Sean D. Jordan, Assistant Solicitor General, Greg W. Abbott, Attorney General of Texas, Clarence Andrew Weber, First Assistant Attorney General, David S. Morales, Office of the Attorney General of Texas, James C. Ho, Solicitor General of Texas, Timothy Earl Bray, General Litigation Division, Austin, TX, for University of Texas at El Paso.
    John P. Mobbs, John Andrew Wenke, Law Office of John A. Wenke, El Paso, TX, for Alfredo Herrera.
   Justice WILLETT

delivered the opinion of the Court.

This case under the Family and Medical Leave Act (FMLA) raises two important immunity issues: (1) did Congress validly abrogate Texas’ sovereign immunity under the FMLA’s self-care provision; and if not (2) did the University of Texas at El Paso (UTEP) waive the State’s immunity through a single sentence in its Handbook of Operating Procedures? We hold that UTEP’s immunity was neither validly abrogated nor voluntarily waived, and the court of appeals erred in affirming the trial court’s denial of UTEP’s plea to the jurisdiction.

I. Background

Alfredo Herrera worked for UTEP as a heating, ventilation, and air-conditioning technician. In March 2005 he sustained an on-the-job injury to his left elbow. Herrera took approximately nine months leave and returned to work in January 2006. UTEP terminated Herrera’s employment less than one month later.

Herrera sued UTEP, claiming it fired him for (1) taking personal medical leave under the self-care provision of the FMLA and (2) exercising his First Amendment rights by complaining about unsafe work conditions. UTEP filed a plea to the jurisdiction on the FMLA claim, contending it was barred by sovereign immunity. The trial court denied the plea, and a divided court of appeals affirmed, holding the self-care provision validly abrogated the States’ sovereign immunity.

The court of appeals anchored its holding on the United States Supreme Court’s decision in Nevada Department of Human Resources v. Hibbs, , which concerned the FMLA’s family-care provision related to ill spouses, children or parents. The court of appeals reasoned that the self-care provision, like the family-care provision in Hibbs, was intended to advance equal-protection rights and was thus a valid exercise of Congress’s powers under § 5 of the Fourteenth Amendment. The dissenting justice emphasized that “[t]he majority opinion flies in the face of a mountain of contrary and persuasive legal authority.”

II. Discussion

A. Does the Self-Care Provision Validly Abrogate State Immunity?

Congress listed five purposes underlying the FMLA:

(1) to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity;
(2) to entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition;
(3) to accomplish the purposes described in paragraphs (1) and (2) in a manner that accommodates the legitimate interests of employers;
(4) to accomplish the purposes described in paragraphs (1) and (2) in a manner that, consistent with the Equal Protection Clause of the Fourteenth Amendment, minimizes the potential for employment discrimination on the basis of sex by ensuring generally that leave is available for eligible medical reasons (including maternity-related disability) and for compelling family reasons, on a gender-neutral basis; and
(5)to promote the goal of equal employment opportunity for women and men, pursuant to such clause.

To achieve these purposes, the FMLA grants eligible employees up to “12 workweeks of leave during any 12-month period” for various health-related reasons, including an employee’s “serious health condition,” the so-called “self-care” provision at issue in this case. Employees returning from FMLA leave are entitled to be restored to their former position, or to a new position with equivalent benefits, pay, and other terms and conditions of employment.

Two threshold issues are undisputed: (1) Herrera is an “eligible employee” under the FMLA; and (2) the Act by its terms applies to state employers like UTEP. Today’s narrow dispute is whether Congress overreached in exposing States to FMLA claims under the self-care provision.

Our federal and state constitutional designs embody the principle of state sovereignty that shields States from private suits in their own courts and in the federal courts. Herrera’s FMLA suit is thus barred by sovereign immunity unless (1) Congress validly abrogates it, or (2) the State voluntarily waives it. As for abrogation, federal legislation can overcome the States’ 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.” The first part is undeniable in this case; the text explicitly subjects States to FMLA claims, and the Supreme Court has determined as much. The second part is what matters here: did Congress have constitutional authority to abrogate the States’ immunity for purposes of the FMLA’s self-care provision?

The principal source for abrogation authority is § 5 of the Fourteenth Amendment: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” As the Supreme Court has explained, “Section 5 grants Congress the power ‘to enforce’ the substantive guarantees of § 1 — among them, equal protection of the laws — by enacting ‘appropriate legislation.’ ”

Congress’s § 5 enforcement power is not limitless, however. If federal legislation “reachfes] beyond the scope of § l’s actual guarantees,” it can validly abrogate the States’ immunity only when it is “an appropriate remedy for identified constitutional violations, not ‘an attempt to substantively redefine the States’ legal obligations.’ ”

To pass constitutional muster, § 5 legislation must meet the two-part test refined in City of Boerne v. Flores — that is, it must (1) counter identified constitutional injuries by the States and (2) exhibit “congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” The first prong decides today’s case, as nothing shows Congress was thinking of gender discrimination by the States when it enacted the self-care provision.

The court of appeals concluded Congress acted within its § 5 authority as the FMLA’s legislative record identified unconstitutional gender bias by the States in the administration of leave benefits. According to the court of appeals, Congress enacted the self-care provision to counter the stereotype that women utilize leave policies more than men and to protect women from such discrimination.

The court of appeals justified its holding by pointing both to the congressional findings noted in Nevada Department of Human Resources v. Hibbs and the historical context in which the FMLA was enacted. In Hibbs, which concerned the Act’s family-care provision, the Supreme Court held that Congress intended the FMLA to protect a right guaranteed by the Equal Protection Clause, specifically the right to be free from gender discrimination in the workplace. The Court reasoned that Congress had validly exercised its § 5 power to abrogate the States’ immunity with respect to family-care claims because Congress had identified a pattern of gender discrimination on the part of the States. Notably, the Court was careful throughout Hibbs to make clear it was deciding the narrow issue of Eleventh Amendment immunity under the family-care provision, nothing else. The court of appeals pointed to Hibbs as proof that the Supreme Court already found that “Congress had before it sufficient evidence of gender-based discrimination in the administration of leave benefits to warrant the enactment of prophylactic § 5 legislation.” But all the evidence of unconstitutional State conduct cited in Hibbs concerned discrimination rooted in the belief that women are more likely than men to take leave to care for other family members, not themselves. Indeed, the court of appeals recognized that in Hibbs there was evidence that the States relied on stereotypes that women’s family duties trumped their workplace duties, caring for family members is “women’s work,” and men do not have the same domestic responsibilities as women. Such evidence regarding women taking leave to care for others does not equate to evidence regarding women taking leave to care for themselves. In Hibbs, the Supreme Court made clear that Congress was required to show evidence of pervasive gender discrimination by the States with regard to family leave. The same is required for the self-care provision. We must assess each FMLA provision separately, and abrogation of the States’ immunity under this provision must rest on its own evidentiary basis; it cannot import evidence from the family-care provision. There simply is no evidence — either in Congress’s findings or elsewhere in the FMLA’s legislative record — that women took more personal medical leave, or were thought to, than men.

The court of appeals also examined the historical context in which the FMLA was enacted, concluding that Congress intentionally included the self-care provision to counter the stereotype that women take more advantage of leave policies than men and to provide women with protection from gender discrimination that might result from more-targeted legislation providing special protection only for pregnant women.

This argument suffers from myriad flaws. First, there is no evidence that Congress, when it enacted the FMLA, was any more concerned with providing leave benefits to pregnant women than to all medically eligible employees, no matter their gender. Second, there is no indication the self-care provision was designed to combat workplace discrimination arising from pregnancy-related complications, much less a pattern of such discrimination by the States. Third, there is no reason to believe the self-care provision would in fact remove any disincentive to hire women that might otherwise result from a pregnancy-specific provision. Indeed, if employers are reluctant to hire women because they believe women might become pregnant, or because they believe women take personal leave more frequently than men, then mandating twelve weeks of leave will only reinforce such views and make employers even more disinclined to hire women.

In sum, the legislative record reveals no intention by Congress to remedy unconstitutional gender discrimination through the self-care provision. Nothing links that provision to any pattern of sex-role stereotyping by the States as employers,

We agree with two States’ highest courts, and nine federal circuit courts, that Congress lacked the power to invoke its § 5 abrogation power under the self-care provision. Although Congress did cite evidence, detailed in Hibbs, of pervasive stereotyping about women as family caregivers, that evidence does not extend to the Act’s self-care provision. There is no evidence of similar stereotypes when it comes to personal medical leave; the legislative record in fact demonstrates the contrary — that men and women take leave equally.

In fact, the record indicates two motivations underlying the self-care provision, both unrelated to gender discrimination. First, Congress was trying to alleviate economic burdens borne by employees and their families facing health-related job loss. Second, Congress was trying to curb discrimination against any employee with a “serious health condition,” a term broadly defined to include any “illness, injury, impairment, or physical or mental condition” that involves “inpatient care” at a medical facility or “continuing treatment by a health care provider,” not just those health conditions wholly or mostly experienced by women. Nothing in the record connects these two, gender-neutral motivations to unconstitutional workplace injuries inflicted by the States. Similarly, the congressional finding most germane to the self-care provision makes no male-female distinction, stating “there is inadequate job security for employees who have serious health conditions that prevent them from working for temporary periods.”

Because the self-care provision was not intended to combat gender bias by the States, and thus does not satisfy City of Boeme’s first prong, we need not reach prong two regarding congruence and proportionality. Summing up: Congress exceeded its § 5 abrogation authority when it subjected the States to private-damages suits under the FMLA’s self-care provision.

B. Does UTEP’s Personnel Handbook Waive the State’s Immunity?

Herrera alternatively argues that even if Congress did not abrogate the State’s immunity, UTEP clearly and unambiguously waived it through its Handbook of Operating Procedures, which states “[a]n eligible employee may also bring a civil action against an employer for violations [of the FMLA].” We disagree.

UTEP’s policy manual certainly mentions employees’ FMLA rights, noting that the FMLA makes it unlawful to discharge or discriminate against someone for involvement in proceedings under the Act. The handbook also includes the “may also bring a civil action” sentence, which Herrera says plainly permits FMLA claims.

This cursory language does not remotely constitute voluntary consent to suit, much less “clear and unambiguous” consent. Putting aside the issue of whether UTEP (as opposed to the Legislature) can waive its immunity by declaration in a handbook, UTEP’s manual actually reveals nothing about an intent to waive immunity. The handbook states that employees may sue for violations of the FMLA, but makes no attempt to expand the universe of actionable violations by explicitly waiving immunity that UTEP otherwise enjoys. Indeed, it is impossible to grasp how fleeting language in a policy manual can “clearly and unambiguously” waive immunity when far more overt declarations in statutes enacted by the Legislature fall short.

III. Conclusion

The State of Texas cannot be sued under the FMLA’s self-care provision. As for abrogation, nothing in the legislative record suggests that gender bias by the States was the constitutional evil underlying the self-care provision. Congress’s power under the Fourteenth Amendment to overcome the States’ immunity is limited, and its attempt to do so here was an unconstitutional exercise of its § 5 power. As for waiver, a stray line in UTEP’s policy manual that employees may “bring a civil action against an employer” is insufficient to waive state immunity. The trial court erroneously denied UTEP’s plea to the jurisdiction. We reverse the court of appeals’ judgment and dismiss Herrera’s FMLA claim for lack of subject-matter jurisdiction.

Justice LEHRMANN did not participate in the decision.

      . 281 S.W.3d 575, 585.

      . 538 U.S. 721, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003).

      .281 S.W.3d at 584. Because the court of appeals held that sovereign immunity had been abrogated on this ground, it did not address the alternative argument that UTEP waived its immunity through a statement in its Handbook of Operating Procedures.

      . Id. at 592 (Carr, J., dissenting). Justice Carr's dissent on a material question of law gives us jurisdiction over this interlocutory appeal. Tex. Gov't Code § 22.225(c).

      . 29 U.S.C. § 2601 (b)( 1) — (5).

      . Id. § 2611(2)(A).

      . Id. § 2612(a)(1). The FMLA guarantees leave to eligible employees for the following reasons:
      (A) Because of the birth of a son or daughter of the employee and in order to care for such son or daughter.
      (B) Because of the placement of a son or daughter with the employee for adoption or foster care.
      (C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.
      (D)Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.

        Id. After this case was filed, Congress added subsection (E), allowing leave for exigencies arising from a family member’s active duty in the Armed Forces.

      . Id. § 2612(a)(1)(D).

      . Id. § 2614(a)(1).

      . Id. §§ 2611(4)(A)(iii), 203(x). The Act confers a private right of action "to recover [] damages or equitable relief ... against any employer (including a public agency) in any Federal or State court of competent jurisdiction. ...” Id. § 2617(a)(2).

      . See Alden v. Maine, 527 U.S. 706, 754, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999); Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 726, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003) ("[T]he Constitution does not provide for federal jurisdiction over suits against noncon-senting States.”); Tooke v. City of Mexia, 197 S.W.3d 325, 331 (Tex.2006); Hoff v. Nueces County, 153 S.W.3d 45, 48 (Tex.2004) (per curiam).

      . Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55, 59, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996).

      . 29 U.S.C. § 2617(a)(2) (enabling employees to seek damages “against any employer (including a public agency) in any Federal or State court of competent jurisdiction”); id. §§ 2611(4)(A)(iii), 203(x) (defining "public agency” to include both "the government of a State or political subdivision thereof” and "any agency of ... a State, or a political subdivision of a State”).

      . Hibbs, 538 U.S. at 726, 123 S.Ct. 1972.

      . See id.

      . U.S. Const, amend. XIV, § 5.

      . Hibbs, 538 U.S. at 727, 123 S.Ct. 1972.

      . Id. at 728, 123 S.Ct. 1972 (quoting Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 88, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000)).

      . 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997).

      . Hibbs, 538 U.S. at 728, 123 S.Ct. 1972 (quoting City of Boerne, 521 U.S. at 520, 117 S.Ct. 2157).

      . 281 S.W.3d 575, 582.

      . Id. at 584.

      . 538 U.S. 721, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003).

      . Id. at 728, 123 S.Ct. 1972.

      . Id. at 735, 123 S.Ct. 1972 ("[T]he States' record of unconstitutional participation in, and fostering of, gender-based discrimination in the administration of leave benefits is weighty enough to justify the enactment of prophylactic § 5 legislation.”).

      . Nelson v. Univ. of Tex. at Dallas, 535 F.3d 318, 321 (5th Cir.2008); Brockman v. Wyo. Dep't of Family Servs., 342 F.3d 1159, 1164 (10th Cir.2003) ("Because the Supreme Court's analysis in Hibbs turned on the gender-based aspects of the FMLA’s § 2612(a)(1)(C), the self-care provision in subsection (D) is not implicated by that decision.”).

      . 281 S.W.3d at 584.

      . Touvell v. Ohio Dep’t of Mental Retardation & Developmental Disabilities, 422 F.3d 392, 400-01 (6th Cir.2005). See Hibbs, 538 U.S. at 729 n. 2, 123 S.Ct. 1972 ("Congress found that, 'due to the nature of the roles of men and women in our society, the primary responsibility for family caretaking often falls on women, and such responsibility affects the working lives of women more than it affects the working lives of men.' ”) (internal citation omitted); id. at 730-31, 123 S.Ct. 1972 (citing evidence of overt discrimination in the maternity and paternity leave benefits offered by both private and public employers); id. at 732, 123 S.Ct. 1972 (citing evidence that even facially neutral policies were applied in a discriminatory way, and noting "serious problems with the discretionary nature of family leave”); id. at 736, 123 S.Ct. 1972 (identifying the "impact of the discrimination targeted by the FMLA” as the "denial or curtailment of women’s employment opportunities [due] to the pervasive presumption that women are mothers first, and workers second.") (internal citation omitted); id. at 731, 123 S.Ct. 1972 (noting "the pervasive sex-role stereotype that caring for family members is women's work”).

      . 281 S.W.3d at 581.

      . Hibbs, 538 U.S. at 729, 123 S.Cl. 1972.

      . See Touvell, 422 F.3d at 399 n. 2.

      . See id. at 402, 405; H.R. Rep. No. 101-28, pt. 1, at 15 (1989) ("Recent studies ... indicate that men and women are out on medical leave approximately equally. Men workers experience an average of 4.9 days of work loss due to illness or injury per year, while women workers experience 5.1 days per year. The evidence also suggests that the incidence of serious medical conditions that would be covered by medical leave under the bill is virtually the same for men and women. Employers will find that women and men will take medical leave with equal frequency.”); see also Laro v. New Hampshire, 259 F.3d 1, 12 (1st Cir.2001) ("The argument that [the self-care] provision validly abrogates New Hampshire’s Eleventh Amendment immunity founders on this lack of congruence between the personal medical leave provision at issue here and the prevention of gender-based discrimination by states as employers, because Congress has not found the states to have engaged in the specific gender-based discriminatory practices this provision was designed to prevent.”); Bryant v. Miss. State Univ., 329 F.Supp.2d 818, 827 (N.D.Miss.2004) (“There is no indication that women require more actual personal medical leave than men. Nor is there any evidence that women have suffered disparate treatment due to a false perception that they require more personal medical leave than men.... [T]here is simply no evidence to this Court’s knowledge that women and men have been subjected to different standards for personal medical leave.”). But see Parental and Medical Leave Act of 1987: Hearing on S. 249 Before the Subcomm. on Children, Family, Drugs and Alcoholism of the S. Comm, on Labor and Human Resources, 100th Cong., 1st Sess., pt. 2, at 170 (1987) (testimony of Peggy Montes, Mayor’s Comm'n on Women's Affairs, City of Chicago) (“[M]ost workplaces have not yet adjusted to meet the needs of the increasing number of women in the labor force.... The lack of uniform parental and medical leave policies in the workplace has created an environment where discrimination is rampant.”).

      . 281 S.W.3d at 582.

      . Id. at 584. The court of appeals surmised the self-care provision was enacted to meet a perceived need not addressed by Title VII and the Pregnancy Discrimination Act (PDA). Id. at 583. The Pregnancy Discrimination Act of 1978 amended Title VII to prohibit sex discrimination on the basis of pregnancy by amending the definition of the terms “because of sex” or "on the basis of sex" to include pregnancy, childbirth, and related medical conditions. See 42 U.S.C. § 2000e(k). Under the PDA, women may not be treated differently in employment because of conditions related to pregnancy or childbirth. But the PDA does not require pregnancy-related leave by employers who offer no benefit provisions for leave at all. The court of appeals believed that the PDA had an unintended negative impact on women’s opportunities in the workplace because “employers might find it cost-effective to discriminate against married women of child-bearing age.” 281 S.W.3d at 583 (quoting S.Rep. No. 102-68, at 73 (1991)).

        .Touvell, 422 F.3d at 404. The self-care provision allows for personal medical leave when a “serious health condition” prevents any employee from performing his or her job. 29 U.S.C. § 2612(a)(1)(D). And the term "serious health condition” in the self-care provision is not limited to or focused on those health conditions wholly or predominantly experienced by female workers, but rather is broadly defined to include any "illness, injury, impairment, or physical or mental condition” that involves "inpatient care” at some type of medical facility or “continuing treatment by a health care provider.” Id. § 2611(11); Touvell, 422 F.3d at 403 ("[T]he same Senate Report that lists various pregnancy-related conditions as examples of medical conditions that would be covered under the self-care provision also lists thirteen other types of conditions, including heart conditions, strokes, ‘most cancers,' and accidents on or off the job.”). See S.Rep. No. 103-3, at 29, 1993 U.S.C.C.A.N. 3, at 31 (1993); see also, e.g., id. at 12, 1993 U.S.C.C.A.N. at 14 (citing testimony that a quarter of all cancer survivors face "some form of employment discrimination”).

      . Touvell, 422 F.3d at 404.

      . Id.

      . See Kazmier v. Widmann, 225 F.3d 519, 528 (5th Cir.2000), ovemded in part by Hibbs, 538 U.S. 721, 123 S.Ct. 1972 (”[W]e find it virtually impossible to conceive how requiring employers to permit employees to take 12 weeks of leave for serious health conditions could possibly have the effect of preventing sex discrimination in hiring practices. If the United States is correct in surmising that employers are reluctant to hire women for fear that they will become pregnant and 'leave the labor market,’ then the only possible effect on hiring practices of expressly mandating leave for pregnancy (among other serious health conditions) would be to reinforce such fears and make employers even more reluctant to hire women. A provision mandating that employers grant leave for serious health conditions cannot be viewed as reasonably calculated to achieve the objective of making employers less disinclined to hire women.”).

      . In this context, we consult the congressional record to discern whether Congress validly abrogated the States’ immunity. See Hibbs, 538 U.S. at 729, 123 S.Ct. 1972 ("We now inquire whether Congress had evidence of a pattern of constitutional violations on the part of the States in this area.”); Kimel, 528 U.S. at 88, 120 S.Ct. 631 ("Our task is to determine whether the [statute] is in fact just such an appropriate remedy or, instead, merely an attempt to substantively redefine the States' legal obligations with respect to age discrimination. One means by which we have made such a determination in the past is by examining the legislative record containing the reasons for Congress' action.”); Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 639, 119 S.Ct. 2199, 144 L.Ed.2d 575 (1999) (”[F]or Congress to invoke § 5, it must identify conduct transgressing the Fourteenth Amendment’s substantive provisions, and must tailor its legislative scheme to remedying or preventing such conduct. [The statute] failed to meet this test because there was little support in the record for the concerns that supposedly animated the law.”); Kazmier, 225 F.3d at 524-25 (”[W]e examine ... the legislative record of the statute under review to see whether it contains evidence of actual constitutional violations by the States sufficient to justify the full scope of the statute's provisions. The respect that must be accorded the States as independent sovereigns within our federal system prevents Congress from restraining them from engaging in constitutionally permissible conduct based on nothing more than the mere invocation of perceived constitutional bogeymen.... If Congress fails to include in the legislative record of a prophylactic statute any evidence of a significant pattern of unconstitutional discrimination by the States, then the statute will not be held to abrogate the States' sovereign immunity.”) (footnotes, brackets, internal quotation marks omitted). It merits mention that this record-intensive inquiry, mandated by controlling caselaw, is unlike our ordinary statutory-construction cases, where clear text is determinative and leaves no room for legislative history.

      . Lizzi v. Wash. Metro. Area Transit Auth., 384 Md. 199, 862 A.2d 1017 (2004); Nicholas v. Attorney Gen., 168 P.3d 809 (Utah 2007).

      . See Loro, 259 F.3d at 16 ("[T]he personal medical leave provision of the FMLA does not exhibit a sufficient congruence to the prevention of unconstitutional state discrimination to validly abrogate the states’ Eleventh Amendment immunity.”); Hale v. Mann, 219 F.3d 61, 69 (2d Cir.2000) ("There is no evidence that this conferment of federally protected [self-care] leave is tailored to remedy sex-based employment discrimination.... Thus, we find that Congress did not have the authority to abrogate the sovereign immunity of the states on claims arising under the [self-care provision] at issue here. Its attempt to do so was not congruent or proportional to the harms targeted by the Fourteenth Amendment."); Banks v. Court of Common Pleas FJD, 342 Fed.Appx. 818, 821 (3d Cir.2009) (per curiam) (“In Chittister v. Dep’t of Cmty. and Econ. Dev., 226 F.3d 223, 229 (3d Cir.2000) we ruled that Congress did not validly abrogate the states’ Eleventh Amendment immunity when it enacted provisions of the FMLA. Although the 'family-care' provisions of the FMLA were upheld by the Supreme Court in [Hibbsl, private suits still may not be brought against states where the self-care provisions of the Act are implicated."); Nelson, 535 F.3d at 321 (”[W]e agree with the rationale of the Sixth, Seventh, and Tenth Circuits that the Supreme Court’s ruling in Hibbs applies only to subsection C. Therefore, this court’s decision in Kazmier still remains the law of this circuit with respect to subsection D.”); Touvell, 422 F.3d at 402 ("Congress adduced no evidence of a pattern of discrimination on the part of the states regarding leave for personal medical reasons sufficient to permit the abrogation of state sovereign immunity.”); Toeller v. Wis. Dep’t of Corr., 461 F.3d 871, 879 (7th Cir.2006) ("We know of no reason why women would be more likely to have [a short-term] medical problem than men. Furthermore, whether we know about it is not the point in the end: what counts is that we see nothing in either the text or the legislative history of the FMLA to indicate that Congress found this to be the case.”); Miles v. Bellfontaine Habilitation Ctr., 481 F.3d 1106, 1107 (8th Cir.2007) ("The district court properly dismissed with prejudice Miles's FMLA claim, which was brought under FMLA’s self-care provisions. As an agency of the state of Missouri, the Center is entitled to Eleventh Amendment immunity from the claim.”) (citations omitted); Brockman, 342 F.3d at 1164-65 ("The legislative history does not, however, identify as the basis for subsection (D) a link [to] any pattern of discriminatory stereotyping on the part of the states as employers.”); Batchelor v. S. Fla. Water Mgmt. Dist., 242 Fed.Appx. 652, 653 (11th Cir.2007) (per curiam) (unpublished) ("Our holding in Garrett that Congress is without authority to abrogate state sovereign immunity for claims arising under the self-care provision of the FMLA.”).

      . Nelson, 535 F.3d at 321.

      . See supra note 32.

      . S.Rep. No. 103-3, at 11, 1993 U.S.C.C.A.N. 3, at 13-14 (1993) (“The fundamental rationale for [a personal medical leave] policy is that it is unfair for an employee to be terminated when he or she is struck with a serious illness and is not capable of working. Job loss because of illness has a particularly devastating effect on workers who support themselves and on families where two incomes are necessary to make ends meet or where a single parent heads the household."); H.R.Rep. No. 101-28, pt. 1, at 23 ("The temporary medical leave requirement is intended to provide basic, humane protection to the family unit when it is most in need of help. It will also help reduce the societal cost born[e] by government and private charity.”); see also Touvell, 422 F.3d at 401 ("One purpose of [the self-care provision] was alleviating the economic burdens on employees and their families of illness-related job loss.”); Brock-man, 342 F.3d at 1164 (same); Laro, 259 F.3d at 12 ("Attention to the legislative history reveals that Congress's primary motivation for including the personal medical leave provision contained in subsection (D) was to protect families from the economic dislocation caused by a family member losing his or her job due to a serious medical problem.”).
      In any event, this concern implicates the Commerce Clause rather than § 5 of the Fourteenth Amendment, and Congress cannot abrogate the States’ immunity through the Commerce Clause. Bd. ofTrs. ofUniv. of Ala. v. Garrett, 531 U.S. 356, 364, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001).

      . 29 U.S.C. § 2611(11).

      . See, e.g., S.Rep. No. 103-3, at 12, 1993 U.S.C.C.A.N. 3, at 14 (citing testimony that a quarter of all cancer survivors face "some form of employment discrimination” and that "such discrimination against qualified employees costs society millions of dollars in lost wages, lost productivity and needless disability payments”); H.R.Rep. No. 101-28, pt. 1, at 23 ("[A] worker who has lost a job due to a serious health condition often faces future discrimination in finding a job which has even more devastating consequences for the worker and his or her family.”); see also Touvell, 422 F.3d at 401 ("The other purpose of the self-care provision was to prevent employment discrimination against those with serious health problems."); Brockman, 342 F.3d at 1164 ("The legislative history accompanying the passage of the FMLA reveals two motivations for the inclusion of the self-care provision.... Second, Congress was attempting to prevent those with serious health problems from being discriminated against by their employers.”) (citations omitted); Laro, 259 F.3d at 12 ("A secondary motivation that appears in the legislative history is a concern to protect workers who were temporarily disabled by serious health problems from discrimination on account of their medical condition.”).

      . 29 U.S.C. § 2601(a)(4).

      . See Tooke v. City of Mexia, 197 S.W.3d 325, 328-29 & n. 2 (Tex.2006) (noting that sovereign and governmental immunity are “waived only by clear and unambiguous language”).

      . See Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 853 (Tex.2002) ("This Court has long recognized that ‘it is the Legislature's sole province to waive or abrogate sovereign immunity.'" (quoting Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 409 (Tex.1997))); but see Tooke, 197 S.W.3d at 344 ("[I]t could be argued that a city lacks authority to waive its own immunity from suit by ordinance or charter. But we need not address that argument here because the quoted provision is not a clear and unambiguous waiver of immunity.”); Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 375, 377 (Tex.2006) (noting that "[w]e have generally deferred to the Legislature to waive immunity,” but holding that City was not immune from "claims against it which are germane to, connected with and properly defensive to claims the City asserts”).

      . See Tooke, 197 S.W.3d at 342 (holding that a ten-word sentence that revealed nothing about an intent to waive immunity did not waive City’s immunity from suit).

      . Id. (holding that phrases in Texas statutes stating a governmental entity may "sue and be sued” or "plead and be impleaded” were not clear and unambiguous waivers of sovereign immunity within the meaning of Tex. Gov’t Code § 311.034); see also id. at 347-55 ("Appendix” listing Texas statutes containing "sue and be sued” or "plead and be implead-ed” language).