Hager v. Ark. Dep't of Health

• Decision Date: 14 November 2013
• Docket Number: No. 12–3842.,12–3842.
• Citation: 735 F.3d 1009
• Parties: Barbara HAGER, Plaintiff–Appellee v. ARKANSAS DEPARTMENT OF HEALTH; Namvar Zohoori, individually and in his official capacity, Defendants–Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

735 F.3d 1009

Barbara HAGER, Plaintiff–Appellee

v.ARKANSAS DEPARTMENT OF HEALTH; Namvar Zohoori, individually and in his official capacity, Defendants–Appellants.

No. 12–3842.

United States Court of Appeals,

Eighth Circuit.

Submitted: Sept. 24, 2013.

Filed: Nov. 14, 2013.

Carmine Joseph Cordi, Jr., AAG, argued and on the brief, Little Rock, AR, for appellant.

Lucien Ramseur Gillham, argued and on the brief, Benton, AR, for appellee.

Before LOKEN, COLLOTON, and BENTON, Circuit Judges.

BENTON, Circuit Judge.

Barbara Hager was fired from the Arkansas Department of Health by her supervisor, Dr. Namvar Zohoori. Hager sued Dr. Zohoori and the Department for statutory and constitutional violations. The district court granted, in part, their motion to dismiss. They appeal. Having jurisdiction under 28 U.S.C. § 1291 over Dr. Zohoori's appeal, this court reverses and remands.

I.

Hager claims that in May 2011, her branch chief and supervisor, Dr. Zohoori, instructed her to cancel a doctor's appointment (necessary, she says, to prevent cataracts) in order to discuss a report. When she refused, she alleges Dr. Zohoori became irritated and falsely claimed she was insubordinate and disrespectful. Four days later, he terminated her without explanation.

Hager sued Dr. Zohoori, in his individual and official capacities, and the Department alleging violations of Title VII of the Civil Rights Act of 1964, the Equal Protection and Due Process Clauses of the Constitution (§ 1983 claim), the Age Discrimination and Employment Act, the Rehabilitation Act, and the Family and Medical Leave Act (FMLA).

Dr. Zohoori and the Department moved to dismiss for failure to state a claim and sovereign immunity. The district court denied their motion in part, allowing three claims against Dr. Zohoori in his individual capacity (§ 1983 gender discrimination, FMLA “interference,” and FMLA “retaliation”) and two claims against the Department (Title VII and Rehabilitation Act). They appeal.

II.

Hager objects to this court's jurisdiction over Dr. Zohoori's appeal, arguing it turns on issues of factual sufficiency. A denial of qualified immunity is an appealable “final decision” only “to the extent it turns on an issue of law.” Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Hager relies on cases reviewing a denial of summary judgment based on qualified immunity. See Johnson v. Jones, 515 U.S. 304, 313–14, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) (holding that where a district court's summary judgment order on qualified immunity turns on the issue of evidence sufficiency—“which facts a party may, or may not, be able to prove at trial”—the order is not appealable); Powell v. Johnson, 405 F.3d 652, 654–55 (8th Cir.2005). In Ashcroft v. Iqbal, the Supreme Court determined the jurisdiction of a court of appeals in a case like Hager's—denial of a motion to dismiss based on qualified immunity:

As a general matter, the collateral-order doctrine may have expanded beyond the limits dictated by its internal logic and the strict application of the criteria set out in Cohen. But the applicability of the doctrine in the context of qualified-immunity claims is well established; and this Court has been careful to say that a district court's order rejecting qualified immunity at the motion-to-dismiss stage of a proceeding is a “final decision” within the meaning of § 1291. Behrens, 516 U.S. at 307, 116 S.Ct. 834.

Applying these principles, we conclude that the Court of Appeals had jurisdiction to hear petitioners' appeal. The District Court's order denying petitioners' motion to dismiss turned on an issue of law and rejected the defense of qualified immunity. It was therefore a final decision “subject to immediate appeal.” Ibid. Respondent says that “a qualified immunity appeal based solely on the complaint's failure to state a claim, and not on the ultimate issues relevant to the qualified immunity defense itself, is not a proper subject of interlocutory jurisdiction.” Brief for Respondent Iqbal 15 (hereinafter Iqbal Brief). In other words, respondent contends the Court of Appeals had jurisdiction to determine whether his complaint avers a clearly established constitutional violation but that it lacked jurisdiction to pass on the sufficiency of his pleadings. Our opinions, however, make clear that appellate jurisdiction is not so strictly confined.

Iqbal, 556 U.S. 662, 672–73, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

Here, Dr. Zohoori challenges the sufficiency of Hager's pleadings to state § 1983, FMLA “interference,” and FMLA “retaliation” claims. This is an issue of law over which this court has jurisdiction. See id. at 672–74, 129 S.Ct. 1937;Bradford v. Huckabee, 394 F.3d 1012, 1015 (8th Cir.2005). See also Rondigo, L.L.C. v. Township of Richmond, 641 F.3d 673, 679 (6th Cir.2011).

III.

This court reviews de novo the denial of a motion to dismiss on the basis of qualified immunity. Bradford, 394 F.3d at 1015. A complaint must “state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Under Federal Rule of Civil Procedure 12(b)(6), the factual allegations in the complaint are accepted as true and viewed most favorably to the plaintiff. Gross v. Weber, 186 F.3d 1089, 1090 (8th Cir.1999). Courts must not presume the truth of legal conclusions couched as factual allegations. Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). Courts should dismiss complaints based on “labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955.

Under the doctrine of qualified immunity, a court must dismiss a complaint against a government official in his individual capacity that fails to state a claim for violation of “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). See also Iqbal, 556 U.S. at 685, 129 S.Ct. 1937;Mitchell, 472 U.S. at 526, 105 S.Ct. 2806 (“Unless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.”). A court considers whether the plaintiff has stated a plausible claim for violation of a constitutional or statutory right and whether the right was clearly established at the time of the alleged infraction. Powell, 405 F.3d at 654–55.See Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (“[D]istrict courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.”).

A.

The § 1983 claim against Dr. Zohoori individually (Count I) alleges that Hager was “a victim of gender discrimination ... and has been denied her right of equal protection of the law and due process of the law.” Specifically, she contends she “was discharged under circumstances summarily [sic] situated nondisabled males ... were not.”

“[T]he Equal Protection Clause requires that the government treat such similarly situated persons alike.” Keevan v. Smith, 100 F.3d 644, 648 (8th Cir.1996), citing City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); Klinger v. Department of Corrs., 31 F.3d 727, 731 (8th Cir.1994). Absent evidence of direct discrimination, courts apply the McDonnell Douglas burden-shifting analysis to claims of employment discrimination under the Equal Protection Clause. Lockridge v. Board of Trs. of Univ. of Arkansas, 315 F.3d 1005, 1010 (8th Cir.2003) (en banc). Under McDonnell Douglas, a prima facie case of discrimination requires that a plaintiff prove: “(1) membership in a protected group; (2) qualification for the job in question; (3) an adverse employment action; and (4) circumstances that support an inference of discrimination.” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 510, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

Dr. Zohoori argues that Hager does not state a § 1983 claim for gender discrimination because her allegation—that she “was discharged under circumstances summarily [sic] situated nondisabled males, younger people, or those that did not require leave or accommodation were not”—is a legal conclusion. Hager contends her “similarly situated” allegation is sufficient because McDonnell Douglas is “an evidentiary standard, not a pleading requirement.” Swierkiewicz, 534 U.S. at 510, 122 S.Ct. 992;Ring v. First Interstate Mortg., 984 F.2d 924, 926 (8th Cir.1993).

Under Swierkiewicz, a plaintiff need not plead facts establishing a prima facie case of discrimination under McDonnell Douglas in order to defeat a motion to dismiss. Swierkiewicz, 534 U.S. at 510–11, 122 S.Ct. 992. The complaint “must contain only ‘a short and plain statement of the claim showing the pleader is entitled to relief.’ ” Id. at 508, 122 S.Ct. 992. “Such a statement must simply ‘give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.’ ” Id. at 512, 122 S.Ct. 992,citing Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

In Twombly, the Supreme Court stated that Swierkiewicz did not change the law of pleading. Twombly, 550 U.S. at 569, 127 S.Ct. 1955. Rather, courts need “not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.” Id. at 570, 127 S.Ct. 1955. “[L]egal conclusions can provide the framework of a complaint” but “must be supported by factual allegations,” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937, that “raise a right to relief above...