     Case: 13-30075      Document: 00512477304         Page: 1    Date Filed: 12/19/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit

                                                                          FILED
                                    No. 13-30075                  December 19, 2013
                                  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


                          ON PETITION FOR REHEARING


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       The Petition for Rehearing is DENIED.               We withdraw the previous
opinion handed down on July 30, 2013, and substitute the following.
       Kristie Bellow brought suit against Kim Edward LeBlanc alleging that
he unlawfully terminated her in violation of the Family Medical Leave Act


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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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

(AFMLA@).     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.
                        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 (AHealth 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 Aself-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 ABoard@), 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.




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      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 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 Aa 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 Agive 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).      ATo 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).



      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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      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 Aplainly 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 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 Aactions [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. '

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2612(a)(1)(D).     Employees have a statutory right to seek monetary and
equitable relief   Aagainst any employer (including a public agency) in any
Federal or State court of competent jurisdiction.@ ' 2617(a)(2).          The term
Aemployers@ 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 in relation to the qualified immunity at issue here.     To the extent LeBlanc
contends Louisiana is the real party in interest and that he benefits from the
State=s sovereign immunity, that issue was not addressed by the district court.
Consequently, we leave this Eleventh Amendment question for the district
court to answer first after sufficient briefing. Admittedly, the issue we defer
is logically antecedent to the one we resolve.   We do so because state sovereign
immunity presents a wholly distinct issue from the one of qualified immunity
which is fully briefed for us to decide.
      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 Afair
warning.@    Hope v. Pelzer, 536 U.S. 730, 741 (2002).      A[T]he right the official
is alleged to have violated must . . . be sufficiently clear that a reasonable

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                                 No. 13-30075

official would understand that [his actions] violate[] that right.@   Anderson v.
Creighton, 483 U.S. 635, 640 (1987).         After Modica, LeBlanc had Afair
warning@ that terminating Bellow for availing herself of FMLA leave B that he
personally approved B would violate her clearly-established right to do so.
Therefore, 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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                                No. 13-30075

OWEN, Circuit Judge, dissenting.
     I dissent for the reasons expressed in JUDGE JONES=S opinion dissenting
from the denial of rehearing en banc.




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