     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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                       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


       1
        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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