Kristie BELLOW, Plaintiff-Appellee v. Kim Edward LeBLANC, Defendant-Appellant, 550 F. App'x 181

ON PETITION FOR REHEARING PER CURIAM: The Petition for Rehearing is DENIED. We withdraw the previous opinion handed down on July 80, 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 (“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. 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. 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 plaintiffs 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.CrvP. 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, 125 S.Ct. 1627, 161 L.Ed.2d 577 (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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (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, 102 S.Ct. 2727, 73 L.Ed.2d 396 (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. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (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 “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, — U.S. —, 132 S.Ct. 1327, 182 L.Ed.2d 296 (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. Módica, 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 Módica’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 Módica 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 Módica’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, 122 S.Ct. 2508,153 L.Ed.2d 666 (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, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). After Módica, 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, accepting her allegations as true at this stage, Bellow has abrogated LeBlane’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. OWEN, Circuit Judge, dissenting. I dissent for the reasons expressed in Judge Jones’s opinion dissenting from the denial of rehearing en banc. 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. . 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.