465 F.3d 174 (5th Cir. 2006), 05-50075, Modica v. Taylor

Docket Nº:05-50075.
Citation:465 F.3d 174
Party Name:Carolyn MODICA, Plaintiff-Appellee, v. Clare TAYLOR, et al., Defendants, Antoinette Humphrey, Defendant-Appellant.
Case Date:September 13, 2006
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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465 F.3d 174 (5th Cir. 2006)

Carolyn MODICA, Plaintiff-Appellee,


Clare TAYLOR, et al., Defendants,

Antoinette Humphrey, Defendant-Appellant.

No. 05-50075.

United States Court of Appeals, Fifth Circuit.

September 13, 2006

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Kevin Thomas O'Hanlon, Leslie Louise McCollom (argued), O'Hanlon & Associates, Austin, TX, for Modica.

Lars Hagen (argued), Austin, TX, for Humphrey.

Appeal from the United States District Court for the Western District of Texas

Before HIGGINBOTHAM, DAVIS, and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

This is an appeal from the district court's denial of summary judgment premised on the defendant's assertion of qualified immunity. The plaintiff filed suit alleging, inter alia, wrongful termination for exercising her First Amendment rights and taking leave under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601-2654 (2000). In response, the defendant filed a motion for summary judgment asserting qualified immunity. The district court concluded that the defendant was not entitled to qualified immunity and that there were genuine issues of material fact precluding summary judgment on both claims. We affirm in part and reverse in part.


Carolyn Modica began working as an inspector for the Texas Cosmetology Commission ("TCC") in Beaumont, Texas, in August 1990. In 2000, Modica and other TCC employees expressed concerns about the demotion of their supervisor, Larry Perkins, in a letter sent to the chairman of the TCC. Modica also attended a TCC meeting during which she addressed the TCC regarding Perkins's demotion, her discovery of files containing pornography on an employee's government-issued computer, and her concerns that the Executive Director, Neil Holifield, had instructed inspectors to report their numbers incorrectly.

According to Modica, following the TCC meeting, her supervisors retaliated against her in various ways for voicing her concerns and associating with other employees. Specifically, Modica asserts that she was denied a merit pay raise and that her application for the position of Director of Enforcement was ignored. In November 2000, Modica filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") alleging gender discrimination.

In December 2000, during an inspection of a beauty school in her district, Modica was involved in an altercation with the school's vice-president and her brother. The police were called to the scene and Modica accused the two of assaulting her. Crediting Modica's account, the police arrested the vice president and her brother; however, two months later, the vice president filed a criminal complaint against Modica. Following a jury trial, Modica was convicted of simple assault.

In September 2001, Modica was again denied a merit pay raise. In May 2002, Modica sent a letter to Texas State Representative Roberto Gutierrez accusing the

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TCC and Holifield of the following: (1) "cheating on numbers to make performance levels higher"; (2) eliminating the tracking system for complaints; (3) abusing travel expenses; (4) misusing state funds; (5) permitting inappropriate activities in the workplace; (6) failing to make the "law books" sold to the public consistent; (7) harassing and abusive conduct and preferentially treating schools found in violation of state regulations; and (8) failing to hold administrative hearings to collect outstanding fines.

In June 2002, Modica applied for the position of Executive Director, which became vacant after Holifield's death. Her application was considered, but she did not receive an interview and was not selected for the position. Antoinette Humphrey was selected as the new Executive Director, and, in that capacity, Humphrey was charged with responding to Modica's complaints. Accordingly, she met in person with Representative Gutierrez to address the contents of Modica's May 2002 letter; Modica participated in the meeting via telephone. Modica contends that shortly after the meeting, Humphrey began retaliating against her by micromanaging her schedule and requiring her to travel long distances to perform inspections. On November 12, 2002, Modica filed the underlying suit against Humphrey and others alleging First Amendment retaliation pursuant to 42 U.S.C. § 1983.

In April 2003, Modica injured her knee while working; as a result, she filed a claim for workers' compensation benefits and took medical leave in June 2003. Before Modica took leave, Humphrey informed her that her inspection district would be eliminated due to budgetary constraints. Humphrey subsequently offered her an inspector position in San Antonio; Modica accepted and was expected to report to work on August 1, 2003.

On July 6, 2003, Modica communicated with the TCC's Human Resources manager via email to ask whether the agency was covered by the FMLA and to request the appropriate documents. Two days later, Modica sent a second e-mail to the Human Resources manager requesting the relevant forms for short- and long-term disability. The following day she renewed her request for the documents. Modica asserts that she never received the information or forms that she requested.

On August 1, 2003, Modica notified the TCC that she was still on medical leave. Humphrey responded that the San Antonio position needed to be filled immediately; however, she offered Modica a position in El Paso, which was to be held open through the end of August, the expiration of Modica's medical leave. Modica accepted but warned that she was not sure when she would be able to return to work. Modica subsequently extended her medical leave until November 12, 2003; consequently, she did not report to work on September 2 as expected. On September 15, 2003, the TCC terminated Modica's employment; Humphrey informed her that the El Paso position needed to be filled immediately and no other inspection positions were available.

Modica subsequently amended her pleadings to allege wrongful termination in retaliation for filing an EEOC charge, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3; exercising her First Amendment rights; and taking FMLA leave. The defendants filed various motions for summary judgment and partial summary judgment. The district court dismissed the TCC and individual commissioners for various reasons; the court also dismissed Modica's Title VII claim as untimely. Nevertheless, the court concluded that there were genuine

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issues of material fact regarding whether Humphrey actually terminated Modica for requesting FMLA leave or writing the letter to Representative Gutierrez. The court further concluded that Humphrey was not entitled to qualified immunity against either of these claims. Humphrey timely appealed, challenging the district court's denial of summary judgment based on her assertion of qualified immunity.


A. Jurisdiction and Standard of Review

Because this an appeal from the district court's denial of summary judgment predicated on qualified immunity, we have jurisdiction "only to the extent that the appeal concerns the purely legal question whether the defendant[] [is] entitled to qualified immunity on the facts that the district court found sufficiently supported in the summary judgment record." Kinney v. Weaver, 367 F.3d 337, 347 (5th Cir. 2004) (en banc). Accordingly, we do not review the district court's determination that a genuine factual dispute exists; instead, we "consider only whether the district court erred in assessing the legal significance of the conduct that the district court deemed sufficiently supported for purposes of summary judgment." Id. at 348.

B. Qualified Immunity

Humphrey challenges the district court's denial of qualified immunity against both of Modica's claims of retaliatory discharge. The doctrine of qualified immunity immunizes government officials acting within their discretionary authority 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). The qualified immunity determination is a two-step inquiry. First, the court must decide whether a plaintiff's allegations, if true, establish a violation of a clearly established right. Id. second, if the plaintiff has alleged a violation, the court must then decide whether the conduct was objectively reasonable in light of clearly established law at the time of the incident. Id. even if the government official's conduct violates a clearly established federal right, the official is nonetheless entitled to qualified immunity if her conduct was objectively reasonable. Id. accordingly, to decide whether the district court erred in denying Humphrey's motion for summary judgment, we must first determine whether Modica's allegations, if true, manifest conduct that is objectively unreasonable in violation of a clearly established federal right. See Kinney, 367 F.3d at 346.

" 'When a defendant invokes qualified immunity, the burden is on the plaintiff to demonstrate the inapplicability of the defense.' " Atteberry v. Nocona Gen. Hosp.430 F.3d 245, 253 (5th Cir. 2005) (quoting McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc) (per curiam)).

To discharge this burden, a plaintiff must satisfy a two-prong test. First, he must claim that the defendants committed a constitutional violation under current law. Second, he must claim that the defendants' actions were...

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