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TOUVELL v. OHIO DEPT. OF MENTAL RETARDATION

No. 04-4011.

422 F.3d 392 (2005)

Mary TOUVELL, Plaintiff-Appellant, v. OHIO DEPARTMENT OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES, Defendant-Appellee.

United States Court of Appeals, Sixth Circuit.

Decided and Filed: September 9, 2005.

Attorney(s) appearing for the Case

ARGUED: John S. Marshall, Marshall & Morrow, Columbus, Ohio, for Appellant. Diane Richards Brey, Office of the Attorney General, Columbus, Ohio, for Appellee. ON BRIEF: John S. Marshall, Louis A. Jacobs, Marshall & Morrow, Columbus, Ohio, for Appellant. Diane Richards Brey, Stephen P. Carney, Douglas R. Cole, Office of the Attorney General, Columbus, Ohio, for Appellee.

Before: BOGGS, Chief Judge; BATCHELDER, Circuit Judge; and GADOLA, District Judge.

OPINION

BOGGS, Chief Judge.

Mary Touvell appeals the district court's dismissal for lack of subject matter jurisdiction of her claim against the Ohio Department of Mental Retardation and Developmental Disabilities ("the Department") under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601 et seq. The district court held that the FMLA's purported abrogation of Ohio's Eleventh Amendment immunity was unconstitutional as it related...

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