Kristie Bellow v. Bd of Supr LA State University

Case: 13-30075 Document: 00512325865 Page: 1 Date Filed: 07/30/2013

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

July 30, 2013

No. 13-30075

Summary Calendar Lyle W. Cayce

Clerk

KRISTIE BELLOW,

Plaintiff - Appellee

v.

KIM EDWARD LEBLANC,

Defendant - Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:12-CV-1529

Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Kristie Bellow brought suit against Kim Edward LeBlanc alleging that he

unlawfully terminated her in violation of the Family Medical Leave Act

(“FMLA”). LeBlanc brings this interlocutory appeal from the district court’s

denying, on qualified immunity grounds, his Federal Rule of Civil Procedure

12(b)(6) motion to dismiss. Bellow’s complaint alleges a cognizable statutory

violation resulting from LeBlanc’s objectively unreasonable conduct in the light

of clearly-established law. We AFFIRM.

*

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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No. 13-30075

FACTS & PROCEDURAL HISTORY

The events that we summarize are as stated in the complaint filed in this

suit. Bellow worked at the Louisiana State University Health Sciences Center

(“Health Center”) from August 2008 until her termination on July 18, 2010. In

April 2010, Bellow was diagnosed with a facial tumor, which required surgical

excision; the tumor impaired her ability to work, and, left untreated, would

eventually have been fatal. That April, Bellow completed the necessary

paperwork requesting eight weeks of “self-help” leave under the FMLA.

LeBlanc, who was her supervisor and also a member of the Board of Supervisors

of Louisiana State University and Agricultural and Mechanical College (the

“Board”), approved Bellow’s request.

On June 14, 2010, Bellow returned from medical leave. She found her

parking card and identification pass were inoperative at the Health Center.

Three days later, on June 18, 2010, Bellow was notified in writing of her

immediate termination. LeBlanc personally signed the letter of termination,

and Bellow alleges her taking FMLA leave motivated LeBlanc’s terminating her.

Bellow maintains LeBlanc deviated from Health Center policy regarding

employee discipline by failing to give her advance notice she was being

considered for termination and by failing to provide meaningful reasons for her

being terminated.

Bellow sued LeBlanc in his individual capacity for discrimination under

the FMLA.1 LeBlanc invoked the defense of qualified immunity. He moved to

dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be

granted. The district court denied the motion, holding that Bellow had alleged

an injury caused by LeBlanc’s violating her clearly-established statutory right

to medical leave under the FMLA, and that LeBlanc’s allegedly terminating her

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Bellow also asserted claims against the Board. Those claims were dismissed. Because

Bellow did not cross-appeal those dismissals, they are not relevant to this appeal and are

discussed no further here.

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in retaliation was objectively unreasonable in the light of clearly-established

law. This interlocutory appeal followed.

DISCUSSION

We have subject-matter jurisdiction to consider, on an interlocutory basis,

a denial of qualified immunity. Wilkerson v. Stalder, 329 F.3d 431, 434 (5th Cir.

2003). A district court’s denial of a Rule 12(b)(6) motion to dismiss on qualified-

immunity grounds is reviewed de novo. Morgan v. Swanson, 659 F.3d 359, 371

(5th Cir. 2011) (en banc). Such review requires taking all of the plaintiff’s well-

pleaded factual allegations as true, with all reasonable inferences drawn in her

favor. Toy v. Holder, 714 F.3d 881, 883 (5th Cir. 2013).

A complaint must contain “a short and plain statement of the claim

showing that the pleader is entitled to relief.” FED . R. CIV. P. 8(a)(2). The

statement must “give the defendant fair notice of what the claim is and the

grounds upon which it rests.” Dura Pharma., Inc. v. Broudo, 544 U.S. 336, 346

(2005). “To survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its

face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal quotation

marks omitted).

Two issues are before us: (1) did Bellow have a clearly-established

statutory right not to be terminated for taking leave under the FMLA, and (2)

if so, was LeBlanc’s terminating her for taking FMLA leave objectively

unreasonable in the light of that then clearly-established law?

Qualified immunity promotes the necessary, effective, and efficient

performance of governmental duties, Harlow v. Fitzgerald, 457 U.S. 800, 807

(1982), by shielding from suit all but the “plainly incompetent or those who

knowingly violate the law,” Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir.

2008) (citation and internal quotation marks omitted); Mitchell v. Forsythe, 472

U.S. 511, 526 (1985) (qualified immunity is immunity from suit, not merely an

affirmative defense to liability). Once a defendant properly invokes qualified

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immunity, the plaintiff bears the burden to rebut its applicability. McClendon

v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002). To abrogate a public

official’s right to qualified immunity, the plaintiff must show: first, the official’s

conduct violated a constitutional or statutory right; and second, the official’s

“actions [constituted] objectively unreasonable [conduct] in light of clearly

established law at the time of the conduct.” Brumfield, 551 F.3d at 326.

1. Statutory rights under the FMLA

LeBlanc contends Bellow, as a state employee, has no statutory rights

under the relevant FMLA subsection because states enjoy sovereign immunity

from such claims. He cited Coleman v. Court of Appeals of Maryland, 132 S. Ct.

1327 (2012), and Kazmier v. Widmann, 225 F.3d 519 (5th Cir. 2000). LeBlanc

also urges us to disregard Modica v. Taylor, 465 F.3d 174 (5th Cir. 2006), as

being inconsistent with Supreme Court precedent.

Among other rights, the FMLA allows eligible employees up to 12 weeks

of unpaid medical leave per year for the employee’s own serious health condition

if that condition impairs the employee’s ability to work. 29 U.S.C. §

2612(a)(1)(D). Employees have a statutory right to seek monetary and equitable

relief “against any employer (including a public agency) in any Federal or State

court of competent jurisdiction.” § 2617(a)(2). The term “employers” includes

state officials acting in their individual capacities. Modica, 465 F.3d at 186-87.

LeBlanc’s reliance on Coleman is misplaced. That decision addressed

other parts of Section 2612(a)(1) in the context of state sovereign immunity, not

the qualified immunity at issue here. To the extent LeBlanc contends Louisiana

is the real party in interest, thereby extending to him sovereign immunity, that

contention also fails under Supreme Court and our circuit precedent. Hafer v.

Melo, 502 U.S. 21, 31 (1991) (state sovereign immunity no bar to suit against

public official in individual capacity); Hudson v. City of New Orleans, 174 F.3d

677, 687 n.7 (5th Cir. 1999) (state sovereign immunity not implicated in personal

capacity suits).

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LeBlanc’s reading of Modica is likewise off the mark. There we stated the

general rule that sovereign immunity does not extend to public officials sued in

their individual capacities, qualifying that rule by noting its application is fact

specific. 465 F.3d at 183. Again, though, the current appeal is about qualified,

not sovereign, immunity. More importantly for present purposes, Modica held

that the “plain language of the FMLA permits public employees to be held

individually liable,” meaning that officials such as LeBlanc could be considered

“employers” under the FMLA and be sued in their individual capacities for

FMLA violations. Id. at 186-87. LeBlanc urges us to adopt a contrary position

taken by other circuits. We cannot, as “one panel may not overrule the decision

of a prior panel, right or wrong, in the absence of an intervening contrary or

superseding decision by this court sitting en banc or by the United States

Supreme Court.” Billiot v. Puckett, 135 F.3d 311, 316 (5th Cir. 1998).

Accordingly, in the light of the FMLA’s and Modica’s plain language,

Bellow has the statutory right to take medical leave. By alleging LeBlanc

terminated her in retaliation for properly exercising that statutory right, Bellow

satisfies the first qualified-immunity prong.

2. Objectively unreasonable conduct and clearly-established law

LeBlanc contends Modica disturbed the law Kazmier had established, and

therefore his conduct could not have been objectively unreasonable because the

law was not clearly established at the time he terminated Bellow. LeBlanc again

misapprehends Modica’s holding and the state of the law generally.

The central concept of qualified immunity’s second prong is one of “fair

warning.” Hope v. Pelzer, 536 U.S. 730, 741 (2002). “[T]he right the official is

alleged to have violated must . . . be sufficiently clear that a reasonable official

would understand that [his actions] violate[] that right.” Anderson v. Creighton,

483 U.S. 635, 640 (1987). After Modica, LeBlanc had “fair warning” that

terminating Bellow for availing herself of FMLA leave – that he personally

approved – would violate her clearly-established right to do so. Therefore,

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accepting her allegations as true at this stage, Bellow has abrogated LeBlanc’s

qualified-immunity defense with respect to this claim.

The district court’s denying LeBlanc’s Rule 12(b)(6) motion to dismiss is

AFFIRMED.

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