Bryant v. Texas Department of Aging & Disability Services

Case: 14-20278 Document: 00512981193 Page: 1 Date Filed: 03/25/2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-20278 United States Court of Appeals

Fifth Circuit

FILED

TAMMY BRYANT, March 25, 2015

Lyle W. Cayce

Plaintiff - Appellee Clerk

v.

TEXAS DEPARTMENT OF AGING AND DISABILITY SERVICES; KIM

LITTLETON,

Defendants - Appellants

Appeal from the United States District Court

for the Southern District of Texas

Before BARKSDALE, SOUTHWICK, and HIGGINSON, Circuit Judges.

LESLIE H. SOUTHWICK, Circuit Judge:

Tammy Bryant filed suit against her employer, the Texas Department of

Aging and Disability Services (“Department”), and supervisor, Kim Littleton,

in her individual capacity, claiming violations of the Family and Medical Leave

Act (“FMLA”). The defendants filed a motion for summary judgment on the

bases of sovereign and qualified immunity. The district court denied the

motion in full. We conclude that the Department is entitled to sovereign

immunity on Bryant’s self-care claims and that Littleton is entitled to qualified

immunity on Bryant’s interference claims. We REVERSE and REMAND.

Case: 14-20278 Document: 00512981193 Page: 2 Date Filed: 03/25/2015

No. 14-20278

FACTUAL AND PROCEDURAL BACKGROUND

Tammy Bryant was hired by the Department in May 2008 to serve as an

Assistant Residence Director at the Brenham State Supported Living Center.

The Brenham Center is home to several hundred individuals with intellectual

and developmental disabilities. Bryant was initially assigned to the facility’s

Driscoll Gardens Unit, but was reassigned to the Childress Terrace Unit in

January 2009. Bryant was promoted to the unit’s Residence Director position

in September 2010, at which time she assumed primary responsibility for the

Childress unit. Littleton also became the Brenham Center’s Assistant Director

of Programs and, as such, Bryant’s immediate supervisor.

This case involves two separate leave periods taken under the FMLA.

Bryant first took leave, starting on October 5, 2010, under the FMLA’s family-

care provision to care for her husband, who had undergone surgery. Bryant

alleges that during her time off, Littleton called her between three and ten

times to discuss work-related matters. She was unable to recall the specifics

of these calls, except that they once discussed whom to hire for the Assistant

Residence Director position. Bryant estimates that each of the calls lasted

between five and thirty minutes.

Bryant returned to work on November 15, approximately six weeks later.

She asserts that she had never previously received any negative reviews,

reprimands, or counseling regarding her work performance. But after she

returned, Littleton allegedly began retaliating against her for taking leave by

issuing various negative reviews and reprimands.

On December 31, Littleton issued Bryant a written “First-Level

Reminder,” identifying two separate incidents of concern. First, Bryant failed

to follow Littleton’s instruction to have a resident’s wheelchair immediately

repaired. Second, Bryant sent an e-mail directly to other departments without

first receiving Littleton’s approval. That same day, Littleton reassigned

2

Case: 14-20278 Document: 00512981193 Page: 3 Date Filed: 03/25/2015

No. 14-20278

Bryant to serve as the Driscoll Residence Director. The move was explained

as an opportunity for Bryant to gain knowledge about being a Residence

Director at a “fairly sound unit” with which she was already familiar.

Soon thereafter, Bryant informed Littleton that she had high blood

pressure and had suffered a mini-stroke. According to Bryant, those conditions

required her to miss multiple days of work between December and February.

Bryant asserts that, despite knowing the cause of her absences, Littleton

issued her a counseling letter on February 18 based, in part, on her attendance.

The letter also included concerns about Bryant’s practice of logging overtime

hours without prior approval.

Sometime in February, Bryant started suffering from severe depression

and panic attacks. According to Bryant, her doctor, Dr. Drell, recommended

that she take two months off from work. When Bryant reviewed the FMLA

paperwork that Dr. Drell completed, she believed he had mistakenly noted that

she would only be off for one month. Because Dr. Drell had told her that she

would actually need to be off for two months, Bryant altered the return date

on the FMLA paperwork to read “6/28/2011” instead of “5/28/2011” before

giving it to Littleton.

Littleton submitted the paperwork to the Time, Labor, and Leave staff.

The staff requested that Littleton discuss the altered date with Bryant. At

some point, Dr. Drell faxed the original paperwork, which showed a return date

of May 28. Robert Ham, Littleton’s supervisor, referred the case to the Texas

Health and Human Service (“HHS”) Commission’s Office of the Inspector

General (“OIG”) for further review. The OIG then instructed Littleton to

contact Bryant to schedule an interview. Littleton called Bryant and asked

her to come to work for a meeting regarding an “investigation.” She did not

disclose any details about the meeting. Bryant refused. As a result, an OIG

investigator went to Bryant’s house that same day, but Bryant refused to

3

Case: 14-20278 Document: 00512981193 Page: 4 Date Filed: 03/25/2015

No. 14-20278

answer any questions. The OIG eventually determined that the evidence could

support a case of criminal forgery against Bryant and referred the matter to

the appropriate district attorney. Bryant explains that the additional worry

caused by the OIG investigation exacerbated her stress and panic attacks and

required extending her leave through July 10.

A few weeks after Bryant returned, Littleton issued Bryant a “Notice of

Possible Disciplinary Action” because of her “continued failure to obey the work

rules of the agency, perform [her] job duties and meet HHS standards for job

performance, and follow job-related instructions from HHS supervisors.”

Bryant was terminated on August 8.

Following her termination, Bryant filed this FMLA suit, raising both

“interference” and “retaliation” claims. First, Bryant alleges that the

defendants interfered with her leave by “reassigning [her] when she []returned

from leave, calling her at home with work related issues, and sending an

investigator to her home to threaten criminal prosecution, while she was on

protected FMLA leave.” Second, Bryant claims that the defendants unlawfully

retaliated against her for taking leave. She claims to have “suffered adverse

employment actions, including but not limited to, being reassigned to a

different unit, receiving various disciplinary actions after taking protected

leave, harassment while on protected leave, and the termination of her

employment because she exercised her rights under the FMLA.” Bryant seeks

an unspecified amount of damages and reinstatement.

The defendants moved for summary judgment. The district court denied

the motion, holding that a genuine dispute of material fact existed concerning

the reason for Bryant’s discipline and termination. Further, the court held

that Littleton was not entitled to qualified immunity. It also determined that

sovereign immunity did not apply because “the plaintiff seeks reinstatement,

relief that escapes Eleventh Amendment preclusion.” Finally, the court held

4

Case: 14-20278 Document: 00512981193 Page: 5 Date Filed: 03/25/2015

No. 14-20278

that Bryant’s interference claim “does not require resolution at this time” but

noted that the “evidence of interference . . . reaches the threshold for a separate

basis of recovery . . . .” The defendants filed this interlocutory appeal.

DISCUSSION

The FMLA allows eligible employees to take up to twelve weeks of leave

in any one-year period to address a family member’s or the employee’s own

serious health condition. 29 U.S.C. § 2612(a)(1)(C), (D). Leave taken under

the FMLA to care for a family member is often labeled “family-care” leave;

leave taken to address an employee’s own health condition is frequently

referred to as “self-care” leave. See Coleman v. Court of Appeals of Md., 132 S.

Ct. 1327, 1332 (2012). Bryant’s claims relate to both types of leave.

Employers subject to the FMLA must comply with two separate

“prohibited acts” provisions found in Section 2615(a). Section 2615(a)(1)

provides: “It shall be unlawful for any employer to interfere with, restrain, or

deny the exercise of or the attempt to exercise, any right provided under this

subchapter.” Section 2615(a)(2) provides: “It shall be unlawful for any

employer to discharge or in any other manner discriminate against any

individual for opposing any practice made unlawful by this subchapter.”

This court has, at times, classified claims brought under Section

2615(a)(1) as “prescriptive” and claims brought under 2615(a)(2) as

“proscriptive.” See Cuellar v. Keppel Amfels, L.L.C., 731 F.3d 342, 349 n. 2 (5th

Cir. 2013) (Elrod, J., concurring) (collecting cases). At other times, this court

has labeled the claims “interference” and “retaliation” claims. See id. Bryant

adopts the interference and retaliation labels. We will do the same.

Though there is no final judgment in this case, the collateral order

doctrine provides jurisdiction to hear an interlocutory appeal of an order

denying a claim of Eleventh Amendment immunity. See Puerto Rico Aqueduct

5

Case: 14-20278 Document: 00512981193 Page: 6 Date Filed: 03/25/2015

No. 14-20278

& Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 147 (1993). We review

such a denial de novo. McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407, 412

(5th Cir. 2004) (citation omitted). This court also has jurisdiction under the

collateral order doctrine to review a district court’s denial of a motion for

summary judgment on the basis of qualified immunity, to the extent that the

denial turns on a matter of law. Trent v. Wade, 776 F.3d 368, 376 (5th Cir.

2015) (citation omitted). We review that denial de novo as well. Kovacic v.

Villarreal, 628 F.3d 209, 211 (5th Cir. 2010) (citation omitted).

On appeal, the Department and Littleton argue that sovereign immunity

requires that the self-care claims against both defendants be dismissed, and

that qualified immunity bars many of the claims against Littleton.

I. Sovereign immunity as to Bryant’s self-care claims

Federal courts lack jurisdiction “over suits against a state, a state

agency, or a state official in his official capacity unless that state has waived

its sovereign immunity or Congress has clearly abrogated it.” Moore v. La. Bd.

of Elementary & Secondary Educ., 743 F.3d 959, 963 (5th Cir. 2014) (citations

omitted). Congress has validly abrogated states’ sovereign immunity with

respect to the FMLA’s family-care provision. Nev. Dept. of Human Res. v.

Hibbs, 538 U.S. 721, 735 (2003). It has not done so with respect to the statute’s

self-care provision; thus states may still assert an Eleventh Amendment

immunity defense against claims based on that provision. Nelson v. Univ. of

Tex. at Dall., 535 F.3d 318, 321 (5th Cir. 2008).

Despite this caselaw, the district court determined that sovereign

immunity did not bar the self-care claim when a plaintiff seeks “reinstatement,

relief that escapes Eleventh Amendment preclusion.” On appeal, Bryant

argues that her claim for reinstatement is an acceptable form of prospective

relief against the state that is not barred by the Eleventh Amendment. We

6

Case: 14-20278 Document: 00512981193 Page: 7 Date Filed: 03/25/2015

No. 14-20278

disagree, as the Ex parte Young exception on which Bryant relies does not

apply to suits against state agencies; this narrow exception is limited to certain

claims against state employees acting in their official capacities. See Raj v. La.

State Univ., 714 F.3d 322, 328 (5th Cir. 2013) (discussing Ex parte Young, 209

U.S. 123, 155–56 (1908)).

Bryant’s self-care claims against the Department are barred by

sovereign immunity under Nelson. When the Eleventh Amendment applies,

courts lack subject-matter jurisdiction over the claim. United States v. Tex.

Tech. Univ., 171 F.3d 279, 285 n.9 (5th Cir. 1999). Thus, the district court did

not have jurisdiction over either Bryant’s interference or retaliation claims

against the Department to the extent that they relate to her self-care leave.

II. Qualified immunity for Littleton on Bryant’s interference claims

The defendants claim that Littleton is entitled to qualified immunity on

some of Bryant’s claims. At oral argument, counsel conceded the retaliation

claims are not barred but insisted that immunity bars the interference claims.

Interference claims are brought under Section 2615(a)(1): “It shall be

unlawful for any employer to interfere with, restrain, or deny the exercise of or

the attempt to exercise, any right provided under this subchapter.” In her

complaint, Bryant provides three separate examples of interference: (1) her

reassignment after returning from family-care leave, (2) Littleton’s phone calls

while she was on family-care and self-care leave, and (3) the OIG investigator’s

interview at her home. The district court determined that “whether the

plaintiff establishes a stand-alone claim for interference with her FMLA leave

is an issue that does not require resolution at this time.” The court then found

“that the evidence of interference, while it reaches the threshold for a separate

basis of recovery, nevertheless, supports the plaintiff’s claim that something

7

Case: 14-20278 Document: 00512981193 Page: 8 Date Filed: 03/25/2015

No. 14-20278

was ‘amiss’ in how her FMLA leave and employment were handled by the

defendants.”

Generally, government officials are “immune from civil damages if their

conduct does not violate clearly established statutory or constitutional law of

which a reasonable person would have known.” Hernandez ex rel. Hernandez

v. Tex. Dep’t of Protective & Regulatory Servs., 380 F.3d 872, 879 (5th Cir. 2004)

(citations omitted). A defense of qualified immunity is analyzed in two parts.

“First, a court must decide whether a plaintiff’s allegation, if true, establishes

a violation of a clearly established right.” Id. (citation omitted). Second, a

“court must decide whether the conduct was objectively reasonable in light of

clearly established law at the time of the incident.” Id. (citation omitted).

“Courts may address these two elements in either order, and need not proceed

to the second where the first is resolved in the negative.” Thompson v. Mercer,

762 F.3d 433, 437 (5th Cir. 2014) (citation omitted).

One of Bryant’s claims is that her reassignment amounts to interference

under Section 2615(a)(1). To succeed on such a claim, a plaintiff “must at least

show that [the defendant] interfered with, restrained, or denied her exercise

or attempt to exercise FMLA rights, and that the violation prejudiced her.”

Cuellar, 731 F.3d at 347 (citation omitted). Bryant was reassigned

approximately six weeks after returning from family-care leave. Bryant took

all of the family-care leave to which she was entitled. Accordingly, she has not

shown that this post-leave reassignment interfered with, restrained, or denied

her exercise or attempt to exercise FMLA rights. She has thus failed to show

that the reassignment violated a clearly established right and Littleton is

entitled to qualified immunity on this interference claim.

8

Case: 14-20278 Document: 00512981193 Page: 9 Date Filed: 03/25/2015

No. 14-20278

Bryant also claims her reassignment amounted to retaliation under

Section 2615(a)(2). 1 The merits of that claim are not before us.

Bryant’s claim that Littleton interfered with her by sending an OIG

investigator to her house is also insufficient. Littleton did not have any control

over the OIG investigation. The OIG, acting independently, made the decision

to send an investigator to Bryant’s home after she refused Littleton’s request

to come to the office. Thus, Littleton is entitled to qualified immunity with

respect to the OIG incident.

This leaves only Bryant’s claim that Littleton interfered with her leave

by calling her with work-related matters during both leave periods. The

defendants assert that Littleton is entitled to qualified immunity on this claim

for several reasons. First, a limited number of phone calls cannot reasonably

be considered as interfering with an employee’s FMLA leave, and there was

thus no violation of a clearly established right. Second, Bryant has failed to

show prejudice. Finally, no clearly established law prevented Littleton from

occasionally calling Bryant while on leave.

“[A] defendant cannot be said to have violated a clearly established right

unless the right’s contours were sufficiently definite that any reasonable

official in the defendant’s shoes would have understood that he was violating

it.” Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014) (citation omitted).

Bryant has not cited to a single judicial opinion holding that employees on

1This case exemplifies the difficulty of using the “interference” and “retaliation”

labels. While these “labels have utility – particularly in the context of the individual cases

in which they appear – it is difficult to distinguish FMLA claims based on these terms alone.”

Cuellar, 731 F.3d at 349 (Elrod, J., concurring). Regardless of the labels, the critical inquiry

is “whether [the claim] arises from the deprivation of an [employee’s] FMLA entitlement or

from punishment exacted for her exercise of an FMLA right.” Id. at 351. The former claim

should be brought under Section 2615(a)(1) and the latter under Section 2615(a)(2). Here,

qualified immunity extends to Bryant’s claim under Section 2615(a)(1) because the post-leave

reassignment did not deprive her of an FMLA entitlement.

9

Case: 14-20278 Document: 00512981193 Page: 10 Date Filed: 03/25/2015

No. 14-20278

FMLA leave have a right to be free from phone calls. Thus, Littleton is entitled

to qualified immunity on Bryant’s remaining interference claim.

On appeal, Bryant makes no argument that the Department is liable for

interference. We have already determined that the Department is entitled to

sovereign immunity on any interference claims relating to Bryant’s self-care

leave, but that form of immunity does not bar claims relating to family-care

leave. The district court did not address an interference claim against the

Department, and the issue has not been raised on appeal. Consequently, no

issue of the Department’s liability for interference is before us.

III. Sovereign immunity for Littleton

The defendants next argue that because sovereign immunity bars

Bryant’s self-care claims against the Department, the self-care claims against

Littleton are similarly barred. That argument depends on the state’s being the

real party in interest. Although a plaintiff may in some circumstances obtain

damages from a state officer in his individual capacity for violating federal law

even when the state is immune, that avenue of relief is closed when “the state

is the real, substantial party in interest.” Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89, 101 (1984) (citations and internal quotation marks

omitted).

The defendants contend that this court has issued two conflicting

opinions addressing this issue. In one, we stated in a footnote that sovereign

immunity precluded a personal-capacity damages claim filed against state

officials. See Kazmier v. Widmann, 225 F.3d 519, 533 n.65 (5th Cir. 2000),

abrogated in part on other grounds by Hibbs, 538 U.S. 721. This court later

limited Kazmier to its facts and said that in some circumstances, sovereign

immunity would not bar relief against officials. Modica v. Taylor, 465 F.3d

174, 183–87 (5th Cir. 2006). The defendants contend that these decisions

10

Case: 14-20278 Document: 00512981193 Page: 11 Date Filed: 03/25/2015

No. 14-20278

cannot be reconciled and that under this court’s rule of orderliness, we are

bound by the earlier Kazmier decision.

The defendants raise the possibility of sovereign immunity as a bar to

the claims against Bryant for violations of self-care rights for the first time on

appeal. The district court therefore did not have an opportunity to rule on the

defense. We recognize this court has held that an argument of Eleventh

Amendment immunity may be made at any time, even on appeal. Union Pac.

R.R. Co. v. La. Pub. Serv. Comm’n, 662 F.3d 336, 342 (5th Cir. 2011).

Nevertheless, we decline to exercise our discretion to address this argument.

We leave it for the district court to address on remand.

The defendants also argue for the first time on appeal that reassignment

does not constitute an adverse employment action. They have waived review

of this issue by failing to raise it in the district court. See Tradewinds Envtl.

Restoration, Inc. v. St. Tammany Park, LLC, 578 F.3d 255, 262 (5th Cir. 2009).

The Department is entitled to sovereign immunity on Bryant’s self-care

claims; we REVERSE the district court’s denial of sovereign immunity on those

claims. Littleton is entitled to qualified immunity on Bryant’s interference

claims, and we REVERSE the denial of Littleton’s motion for summary

judgment on those claims based on qualified immunity. We REMAND for

proceedings consistent with this opinion.

11