Bryant v. Tex. Dep't of Aging & Disability Servs.

• Decision Date: 25 March 2015
• Docket Number: No. 14–20278.,14–20278.
• Citation: 781 F.3d 764
• Parties: Tammy BRYANT, Plaintiff–Appellee v. TEXAS DEPARTMENT OF AGING AND DISABILITY SERVICES; Kim Littleton, Defendants–Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

781 F.3d 764

Tammy BRYANT, Plaintiff–Appellee

v.TEXAS DEPARTMENT OF AGING AND DISABILITY SERVICES; Kim Littleton, Defendants–Appellants.

No. 14–20278.

United States Court of Appeals, Fifth Circuit.

March 25, 2015.

David J. Manley (argued), Cypress, TX, for Plaintiff–Appellee.

Douglas D. Geyser, Esq. (argued), Office of the Solicitor General, Marc Rietvelt, Assistant Attorney General, Office of the Attorney General, Austin, TX, for Defendants–Appellants.

Appeal from the United States District Court for the Southern District of Texas.

Before BARKSDALE, SOUTHWICK, and HIGGINSON, Circuit Judges.

Opinion

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.

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 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 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 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., ––– U.S. ––––, 132 S.Ct. 1327, 1332, 182 L.Ed.2d 296 (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 & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 147, 113 S.Ct. 684, 121 L.Ed.2d 605 (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...