Former state worker pitted against Nevada in family leave case

Inside a threadbare old mining home in eastern Nevada's desolate high desert, Bill Hibbs collects disability payments for his heavily sedated wife and yearns for a final victory over the state he says stole his future.

Four vehicles and a custom-built $140,000 house are gone. He has no medical insurance and no pension. His wife Diane is a shell of her former self. She depends on mind-numbing medication to lessen neck pain still lingering from a 1996 car crash.

Five years after he was fired by the Nevada welfare office for missing work while caring for his wife, Hibbs hopes only for a hollow, symbolic win.

"I lost everything, but they don't care," said Hibbs, 46. "This isn't about me anymore."

The U.S. Supreme Court hears arguments Jan. 15 in a case that began with Hibbs trying to get his job back and has since become a widely watched test of federal labor law -- a tug of war between states' rights and the reach of the federal government to correct discrimination.

Hibbs thinks he was denied additional time off work, under the federal Family Medical Leave Act, because he is a man.

"It was reverse discrimination," he said by phone from his home in tiny McGill, in barren eastern Nevada, about 300 miles from Reno and Las Vegas.

The state claims it is constitutionally immune to Hibbs' lawsuit under the 11th amendment, which gives states "sovereign immunity" from certain lawsuits.

Congress can override state immunity with legislation, as it did with 1960s civil rights laws designed to remedy violations of the 14th amendment's equal-protection clause.

The court will decide in the Hibbs case whether state workers can sue their agencies for denying time off to care for an ailing family member.

Underlying that question is another: whether Congress adequately justified an override of state immunity when crafting the federal leave law in 1993.

Hibbs knows the nine justices will not reinstate his job, insurance or pension. He said he just wants his spiraling bad luck to end.

It began with a 1996 Mother's Day car accident. Hibbs tore a rotator cuff and his two younger children suffered scrapes and bruises when a driver ran a red light in Reno and slammed into the family's Ford pickup truck.

Diane Hibbs injured her neck and spine in the crash. Doctors put a plate into her neck, but a screw came loose into her throat.

Hibbs missed work for more than five months in 1997 to care for her, using time donated from colleagues and leave he thought was guaranteed under federal law.

But when he didn't work from August through mid-November, Hibbs was dismissed. The state had counted his medical leave concurrently with the donated "catastrophic" time off.

Hibbs maintains he was treated unfairly, and that a woman would have been granted the additional leave.

His legal challenge gave states the opportunity to voice long-held concerns about the Family Medical Leave Act. It allows state or private employees up to 12 weeks of unpaid leave for the birth or adoption of a child, or to tend to a personal or family illness.

Hibbs' lawyer Nina Pillard and the nonprofit advocacy group National Partnership for Women & Families argue that Congress was justified in crafting a law to correct past discrimination by private employers and states.

"All 50 states for many generations legally enforced laws that reinforced stereotypes," Pillard said.

The U.S. Solicitor General's office in Washington also is arguing on Hibbs' behalf -- and defending the leave law.

The law established a "gender-neutral, uniform family-leave floor" that was designed to "attack discrimination against women in hiring and promotions and against men seeking family-care leave," the government wrote in a court brief.

In a recent similar case, the U.S. Supreme Court barred state workers from suing employers in U.S. court under federal age discrimination and disability laws.

As Hibbs' case has worked its way through various courts, Hibbs' wife underwent a dozen expensive operations in California and Arizona.

Without health insurance, Hibbs paid the surgeons by selling off horses, three off-road vehicles, two classic cars, a truck, van, and eventually his house near Virginia City. The family moved into a $6,500 mining home that had been abandoned for eight years. They have no phone service.

"Every penny I had went to pay for her operations," Hibbs said. "But she never got better."

Hibbs now supports his wife and two teenage children on $1,000 a month, working part-time for the federal Housing and Urban Development agency. He was traveling Monday to Washington, D.C., using plane tickets donated by labor unions.

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The case is Nevada Department of Human Resources v. Hibbs, 01-1368.