United States Court of Appeals Fifth Circuit 

## FILED September 13, 2006 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-50075

CAROLYN MODICA, Pl aint iff- Appellee, versus CLARE TAYLOR, ET AL., Defendants, ANTOINETTE HUMPHREY, Defendant

- Appellant.

Appeal from the United States District Court fo r 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 d efendant’s assertion of qualified immunit y. The plaint iff filed suit alleging, int er alia, wron gful term inat io n fo r exercising her First Amendment rights and taking leave under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601-2654 (2000). I n response, the defendant filed a motion for summary judgment asserting qualified immunit y. The district court concluded th at the defendant was not entitled to qualified immunit y and th at there were genuine i ssues of mat erial fact precluding summary judgment on both claims. We affirm in part and reverse in part.2 I. FACTUAL AND PROCEDURAL BACKGROUND Carol yn Modica began working as an inspector f or 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 let ter 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 emplo y ee’s government-issued

com puter, and her concerns th at the Executive Director, Neil Hol ifield, had inst ructed inspectors to report thei

r numbers incorrectly. According to Modica, following the TCC meeting, her supervisors retal iat ed against her in various ways fo r voicing her concerns and associating wit h other employees. S pecifically, Mo dica asserts that she was denied a merit pay raise and th at her application fo r the position of Director of Enforcement was ignored. In November 2000, Modica filed a charge of discriminat io n wit h the Equal Em ployment Opportunity Commission (“EEOC”) alleging gender discrimination. In December 2000, during an inspection of a beauty schoo l in her district, Modica was invo lved in an alt ercation wit h the school’s vice-president and her brother. The pol ice were called to the scene and Modica accused the two of assaulting her. Crediting M odi ca’s account, the pol ice arrested the vice president and her brother; however, two mo nt hs lat er, 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 let ter to Texas State Representative Roberto Gutierrez accusing the TCC and Hol ifield o f t he fo llo wing: (1) “cheating on numbers to make performance levels higher”; (2) eliminat ing the tracking syst em for complaints; (3) abusing travel expenses; (4) misusing state funds; (5) permitting3

inappropriate activit ies in the workpl ace; (6) failing to make the “law books” sold to the publ ic consistent; (7) harassing and abusive conduct and preferentially treating schools fo und in vio lat io n of state regul ations; 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 aft er Hol ifield’s death. Her application was considered, but she did not receive an int erview and was not selected fo r the position. Ant oinette Humphrey was selected as the new Executive Director, and, in th at capacity, Humphrey was charged wit h responding to Modica’s com plaint s. Accordingly, she met in person with Representative Gutierrez to address the contents of Modica’s May 2002 letter; Modica participated in the meeting via tel ephone. Modica contends that shortly after the meeting, Humphrey began retaliating against her by micromanaging her schedule and requiring her to travel lo ng distances to perform inspections. On November 12, 2002, Modi ca f iled t he 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’ com

pensation benefit s and took me d ical leave in June 2003. Before Modica took leave, Humphrey info rm

ed her th at her inspection district would be eliminat ed due to budgetary constraints. Humphrey subsequently of fered her an inspector position in San Ant onio; Modica accepted and was expected to report to work on August 1, 2003. On July 6, 2003, Modica com municated wit h the TCC’s Human Resources manager via email to ask whether the agency was covered by the FMLA and to request the appropri ate docum ents. Two days lat er, Modica sent a second e-mai l to the Human Resources manager requesting the relevant fo rms fo r short- and lo ng-term disabilit y. The fo llo wing day she renewed her request fo r the docum ents. Modica asserts that she never received the information or forms that she requested.4

On August 1, 2003, Modica notified the TCC th at she was still on medical leave. Humphrey responded th at the San Ant onio position needed to be filled immediately; however, she offered Modica a position in El Paso, which was to be held open th rough 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 Septem ber 2 as expected. On Septem ber 15, 2003, the TCC term inat ed Modica’s employment ; Humphrey info rm ed her th at the El Paso position needed to be filled immediat ely and no other inspection positions were available. Modica subsequently amended her pleadings to allege wrongful term inat io n in retal

iat io n fo r filing an EEOC charge, in vio lat io n of Ti tle 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 mo tions fo r summary judgment and parti al s ummary judgment. The district court dismissed the TCC and individual com

missio ners fo r various reasons; the court also dismissed Modica’s Title VII claim as untimely. Nevertheless, the court concluded th at there were genuine issues of mat erial fact regarding whether Humphrey actually term inat ed Modica for requesting FMLA leave or writing the let ter to Representative Gutierrez. The court further concluded th at Humphrey was not entitled to qual ified immunit y against either of these claims. Humphrey timely appealed, challenging the district court’s denial of summary judgment based on her assertion of qualified immunity. II. DISCUSSION A. Jurisdiction and Standard of Review Because this an appeal from the district court’s denial of summary judgment predicated on qualified immunit y, we have jurisdiction “o nly t o the extent that the appeal concerns the purely legal5

question whether the defendant[ ] [i s] entitled to qualified immunit y on the facts th at the district court fo und sufficient ly 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; inst ead, we “consider only whether the district court erred in assessing the legal significance of the conduct th at the district court deemed sufficient ly supported fo r purposes of summary judgment.” Id. at 348. B. Qualified Immunity Humphrey challenges the district court’s denial of qualified im munit y against both of Modica’s claims o f retaliatory discharge. The doctrine of qualified immunit y immunizes go vernment officials acting wit hin their discretionary authority from civil damages if their conduct does not vio lat e clearly established statutory or co nstitutional 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 qual ified immunit y determination is a two-step inquiry. First, the court must decide whether a plaint iff’s allegations, if true, establish a vio lat io n 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 estab lished law at the time of the incident. I d. Even if the government of

ficial’s conduct violates a clearly established federal right, the of ficial is nonetheless entitled to qualified immunit y if her conduct was objectively reasonable. Id. Accordingly, to decide whether the district court erred in denying Humphrey’s mo tion fo r summary judgment, we must fir st determ ine whether Modica’s allegations, if true, manifest conduct th at is objectively unreasonable in vio lat io n of a clearly established federal right. See Kinney , 367 F.3d at 346.6

“‘When a defendant invo kes qualified immunit y, the burden is on the plaint iff to demonstrate the inapplicabilit y of the defense.’” Atteberry v. Nocona Gen. Hosp

. 430 F.3d 245, 253 (5th Ci r. 2005) (quoting McClendon v. City of Columbia , 305 F.3d 314, 323 (5th Cir. 2002) (en banc) (per curiam)). To discharge this burden, a plaint iff must sati sfy a two-prong test. First, he must claim th at the defendants committed a constitutional violation under current law. Second, he must claim th at the defendants’ actions were objectively unreasonable in light of the law that was clearly established at the time o f t he actions complained of. See id. This bifurcated legal standard is designed both to prom ote clearer standards fo r of ficial co nduct and to spare defendants unwarranted liability and court costs. Id. (citations omitted). C. Section 1983 First Amendment Retaliation To prevail on a § 1983 First Amendment retal iat io n claim, a public employee must establish the fo llo wing: (1) she s uffered an adverse employment action; (2) her speech involved a matter of public concern; (3) her int erest in com ment ing on mat ters of public concern outweighs the employer’s int erest in prom

oting efficiency; and (4) her speech mo tivated the employer’s adverse action. Johnson

v. Louisiana 369 F.3d 826, 830 (5th Cir. 2004). “Whether the speech at issue is on a mat ter of public

concern is a question of law th at must be determ ined by the court.” Salge v. Edna Indep. Sch. Dist. , 411 F.3d 178, 184 (5th Cir. 2005). Humphrey argues th at the district court erred in conclu d ing th at Modica’s speech was protected by the First Amendment because it did not invo lve mat ters of public concern; inst ead, she contends th at Modica’s speech solely concerned private matters because it was in furtherance of a personal employer-employee dispute. Modica’s let ter to Representative Gutierrez discussed private workpl ace issues, such as inappropriate activities in the work place and preferential treatment of certain schools, as well as mat ters of public concern, namely the misuse of public funds. Accordingly,1 Modica’s let ter states th at Hol ifield “allo wed hair braiding to happen on state time” and permitted a baby shower to be “held on state time at the agency.” She also asserts th at “[h]e writes employees up without investigation to [sic] the incident.”

2 Modica’s letter stated that “Mr. Holifield has made changes in the way numbers of inspections are reported to th e legislators so that the performance levels have risen from 38 percent to 100 per cent within the l ast three years.” With regard to the misuse of state funds, Modica stated that Hol ifield purchased “fine china, stainless and cry stal” fo r the break room and th at “[i]nspectors had been issued laptop com

puters and they had barely been implement ed in the field when he decided th at the of fice staff needed new com

puters, so he issued the used of fice PC’s to the inspectors, thus giving inspectors two computers each.” 7 Modica’s speech is properl y classified as mixed speech. We have observed th at “[m]ixed speech cases are perhaps the most difficult subset of employee speech cases to adjudicate.” Kennedy v. Tangipahoa Parish Library Bd. of Control , 2 24 F.3d 359, 367 (5th Ci r. 2000). In deciding whether Modica’s speech as a whole relates to the public concern such th at it is entitled to protection, we consider “t he content, fo rm , and context of a given statement, as revealed by the whole record.” Connick v. Myers , 461 U.S. 138, 147-48 (1983); Teague v. City of Flower Mound, Tex. , 179 F.3d 377, 382 (5th Cir. 1999). Alt hough Modica’s let ter addre ssed some private issues, the content of Modica’s letter is primarily public. Modica expressed private concerns relating to management pol icies such as allo wing employe es to participate in inappropriate activities during work hours and Holifield’s abuse of his authori ty ; 1 however, “[t]he existence of an element of personal interest on the part of an employee in the speech does not prevent finding th at t he speech as a whole raises issues of public concern,” Dodds v. Childers , 933 F.2d 271, 273 (5th Cir. 1991). Modica raised concerns about the misuse of publ ic funds in regard to employee travel and unnecessary purchases for the office, as well as

concerns about the erroneo us reporting of the number of inspections to the state legislature. 2 See Branton v. City of Dallas , 272 F.3d 730, 739 (5th Cir. 2001) (stating th at speech disclosing evidence8

of impropriety by city officials addresses matters of public concern); see also Marohnic v. Walker , 800 F.2d 613, 616 (6th Cir. 1986) (“Public int erest is near it s zenith whe n ensuring that public organizations are being operated in accordance wit h the law, and seeing th at public fund s are not purloined.” (citations om

it ted)). As we explained in Kennedy , “t he content of the speech may relate to the public concern if it does not invo lve sol ely personal matters or strictly a discussion of management pol

icies th at is only int eresting to the public by virtue of the manager’s status as an arm of the government.” 224 F.3d at 372. Despite Modica’s statem ent in the let ter th at she was a vict im of retal iat io n and harassment, only two of the ten issues she addressed relate to this allegation; the let ter’s primary fo cus is Hol ifield’s malfeasance. Accord ingly, “the releas[e] of the [letter] to the public would inform the populace of more than the fact of [Modica]’s employment grievance,” see id. at 372, and, the content of Modica’s speech weighs in favor of protection. The fo rm of Mod i ca’s speech, a let ter to a state representative, also milit ates in favor of protection. Though not dispositive, Modica’s choice to info rm som eone outside the TCC of her

concerns supports her contention th at the speech is public. Cf. Dodds , 933 F.2d at 274 (finding th at the fo rm and context of an employee’s com plaint did not support her contention th at she addressed a matter of public concern where she did not address her complaints to anyone outside t he inst it ution); Terrell v. Univ. of Tex. Sys. Police , 792 F.2d 1360, 1362-63 (5th Cir. 1986) (“Terrell’s personal notebook cannot serve as the basis fo r a claim th at he was fir ed fo r exercising his first amendment rights. He made no effo rt to com municate the contents of the notebook to the public, and the evidence does not suggest that he would have had any occasion to do so.”). In Teague , f orm er pol ice of ficers alleged th at they were discharged fo r exercising their First Amendment rights by filing grievances against the Chief of Pol ice. 179 F.3d 377. We reasoned th at the fo rm of the plaint iffs’3 Modica’s let ter stated: “The licensees are required to purchase the current l aw book. . . . The

public com

plains th at they sent their mo ney orders to TCC, but never received their books. TCC cannot account fo r the books and money received.” She also stated that the “agency is behind two (2) years in administering [administrative] hearings. We are losing revenue.” 9 speech was private because the grievances fo cused on their inability to obtain redress for removal from an invest igation. Id. at 383. In contrast, the majo rity of Modica’s concerns did not relate to her personal gri evances, but to the impact Holifield’s management had on the public and licensees. 3 Consequently, we conclude that the form of Modica’s speech was primarily public. The context of Modica’s speech also favors protection. Alt hough there i s evidence of an employer-employee dispute in the un d erlying circumstances, namely the reassignment of Larry Perkins and Modica’s allegations of retaliation, the majo rity of Modica’s concerns did not rel ate to this dispute nor her jo b, but to the operation of the TCC as a whole. Cf. Kennedy , 224 F.3d at 374. (“Therefore, unlike Terrell , where Terrell’s speech regarding an intra-departmental investigation related only to his own jo b, Kennedy’s speech here referred to producing a safety plan demanded by the Pari sh at large to safeguard patrons and employees alike , and indeed, her own suggestion appeared wit hin the plan it self.”). For example, Modica expressed concerns regarding the eliminat io n of the com

plaint tracking syst em, the delay in holding administ rative hearings, and the failure of the agency to distribute the regulation books fo r which it received payment. Indeed, Modica’s let ter only addressed Perkins in the context of Mr. Hol ifield ’s elimination of the complaint tracking system, stating th at the high reporting of com plaint s had made her “previous boss, Larry Perkins and us lo ok bad.” This reference is mo re of an explanation as to why the eliminat io n of the com plaint tracking syst em is questionable th an an effo rt to address her disagreement wit h the reassignment of Larry Perkins.4 For example, Modica states in her let ter th at she “was passed up fo r a raise” as “another incident

of his way of retaliation.”
5 In an e-mail sent to the TCC Modica stated “I would like to fo rmally file a com plaint .” She then states th at Hol

ifield inappropriately spending state f unds, citing the same and similar activities she referenced in her letter to Representative Gutierrez, e.g., needlessly mailing packages; purchasing “glass china, silverware, pots and pans, and a dishwasher”; purchasing new com puters. She also referenced the failure of licensees to receive the books they requested. 10 Nor did Modica’s letter f ocus on her failure to receive promotions or raises. Once again Teague of

fers a useful comparison. Unlike the letter at issue in Teague , Modica’s let ter urged th at action be taken against Hol ifield because “t he public and TCC deserve to have better representation,” not th at she receive a particular redress, whereas “[t]he grievance submit ted by Teague and Burkett to Ragland

. . . express[ed] ‘the need to be given a fair hearing concerning our handling of [the Jones] invest igation,’” Teague , 179 F.3d at 383 (thi rd alt eration in original). Further, in Teague , we noted the plantifffs’ “attem

pt to take their grievance to the town manager”; however, we concluded th at “[t]his was not [ ] an attem pt to make the mat ter public, but rather simply an effo rt to go over [their supervisor’s] head by appealing to som eone wit h supervisory authority over him.” 179 F.3d at 383 n.7. In contrast, Modica’s let ter constitutes an effo rt to bring public attention to problems in t he TCC’s administ ration of it s public duties. Alt hough, som e statem ents are attri

butable to her personal grievances, 4 this represented only a small aspect of the let ter and the underlying circumstances. Further, her complaints regarding Hol ifield, com

mencing in July 2000, were related to allegations of misuse of state funds, not personal grievances. 5 Indeed, it i s not until after she made these

com plaint s to the TCC th at she alleges she was retal iat ed against by way of not receiving prom otions. Accordingly, we conclude that the context of the letter is more public than private in nature.11

Despite the presence of some private int erests, the content, fo rm , and context of Modica’s let ter demonstrate th at her speech was predom inat ely public. In Moore v. City of Kilgore, Texas , 877 F.2d 364, (5th Cir. 1989), we observed th at the plaint iff’s speech “invo lve[d] a hint of personal ‘employee’ considerations” but nevertheless concluded th at his “speech as a whole, [] considering the content, context, and fo rm together,

. . . invo lve[d] a mat ter of public concern.” Id. at 371-72 (footnote om

it ted). Likewise, taken as a whole, Modica’s speech is entitled t o First Am endment protection. The district court concluded th at Modica’s int erest in com me nt ing on these matters outweighed Humphrey’s int erest in promoting efficiency and Humphrey does not challenge this conclusion on appeal. The court further determ ined that Modica raised a genuine issue of mat erial fact as to whether her speech was a substantial or mo tivating factor in her term inat io n. As explained above, because this is an appeal of a denial of summary judgment predicated on qualified immunit y,
we do not review the district court’s conclusion th at a genuine issue of mat erial fact exists. Consequently, we conclude that, if true, Modica’s allegations are sufficient to establish a vio lat io n of her First Amendment rights. Humphrey does not dispute th at the First Amendment ’s bar against retal iat io n fo r protected speech was clearly established federal law. See, e.g. , Kinney , 367 F.3d at 369. Nor does she argue th at her conduct was objectively reasonable. Accordingly, we conclude th at Modi ca has alleged a vio lat io n of a clearly established right and we affirm the district court’s denial of summary judgment

on Modica’s First Amendment retal iat io n claim based on Humphrey’s assertion of qualified immunit y.

D. FMLA Retaliation Claim12

Humphrey argues that the district court erred in denying her mo tion fo r summary judgment wit h regard to Modica’s FMLA claim on several grounds. First, she contends th at a public of ficial is not an employer for purposes of the FMLA. Next, she argues that she is entitled to qualified immunit y because the FMLA was not clearly established law at the time and because her decision to term inat e Modica’s employment was not objectively unreasonable. 1. Whether Humphrey is an “employer” for purposes of the FMLA Relying on Kazmier v. Widmann , 225 F.3d 519 (5th Cir. 20 00), a brogated by Nevada Department of Human Resources v. Hibbs , 538 U.S. 721(2003), Humphrey contends th at this circuit does not permit suits against public of ficials under the FMLA. Specifically, Humphrey relies on fo otn ote 65 of the Kazmier decision stating th at “[t]he claims brought against the defendants in their individual capacities must be dismissed fo r lack of subject mat ter jurisdiction because it is clear th at the St ate of Loui si ana is the real party in interest.” K azmier , 225 F.3d at 533 n.65. Humphrey’s reliance on Kazmier is misplaced. As a general rule the Eleventh Amendm ent does not b ar suits against officers in their individual capacities. Hudson v. City of New Orleans , 174 F.3d 677, 687 n.7 (5th Cir. 1999); Martin

v. Thomas , 973 F.2d 449, 458 (5th Cir. 1992). Nevertheless, where the state is the real and substantial party in int erest, the Eleventh Amendment may bar the suit. See Ysleta Del Sur Pueblo

v. Laney , 199 F.3d 281, 286 (5th Ci r. 2000); P endergrass v. Greater New Orleans Expressw ay Comm’n , 144 F.3d 342, 345 (5th Cir. 1998). Humphrey contends th at in Kazmier we stated our “unwillingness to hold public of ficials liable under the FMLA.” This proves too much. “The application of the [Eleventh] [A]mendment to suits against state of

ficials in their individual capacity depends on the circumstances.” Luder v. Endicott ,13

253 F.3d 1020, 1022 (7th Cir. 2001). Consequently, the Kazmier panel’s conclusion that the state

was the real party in int erest must be limit ed to the facts of th at case. C f. Luder , 253 F.3d at 1024-25 (explaining th at the state would be required to pay damages to the 145 plaint iffs and concluding th at

ca sti ng the suit, brought under the Fai r Labor Standards Act, as one against the officers in their individual capacities was a “t rasparent[] effo rt at an end run around the Eleventh Amendment”). Moreover, we have previously recognized the general rule that the Eleventh Amendment does not bar suits against state of

ficials in their individual capacities. Hudson , 174 F.3d at 687 n.7; Martin , 973 F.2d at 458. “When panel opinions appear to conflict, we are bound to fo llo w the earlier opinio n.” H& D Tire & Automotive-Hardw are, Inc. v. Pitney Bowes Inc. , 227 F.3d 326, 330 (5th Cir. 2000). Accordingly, even if Kazmier could bear the weight Humphrey int ends fo r it to carry , we would not be bound. Humphrey’s reliance on Kazmier is misguided and the Eleventh Amendment does not bar the inst ant suit. Nevertheless, it does not necessarily fo llo w th at public employees may be sued in their individual capacities under the FMLA; thus, we tu rn to Hum phrey’s contention that she is not an employer for purposes of the FMLA. Humphrey argues th at employees of public agencies may no t b e held personally liable under the FMLA as employers. We have not had occasion to consider this question; however, several our sist er circuits, as well as various district courts, have done so. The Sixth and Eleventh Circuits have held that a public official is not an employer fo r purposes of the FMLA when sued in her individual capacity, but the Eighth Circuit reached the opposite conclusion. Compare Mitchell v. Chapman , 343 F.3d 811, 832 (6th Cir. 2003), and Wascura v. Carv er , 169 F.3d 683, 687 (11th Ci r. 1999), w ith Darby v. Bratch , 287 F.3d 673, 681 (8th Cir. 2002). The district courts are similarly divided on this question; however, it appears th at a majo rity have concluded th at public employees may be liable in14

their individual capacities under the FMLA. See Cantley v. Simmons , 179 F. Supp. 2d 654, 656 (S.D.W. Va. 2002) (“While som e district courts have decided otherwise, the majo rity of district courts have concluded th at public employee supervisors can be sued individually under the FMLA.”). Compare Sheaffer v. County of Chatham , 337 F. Supp. 2d 709, 728-29 (M.D.N.C. 2004) (holding th at public employees can be liable under the FMLA), and Morrow v. Putnam , 142 F. Supp. 2d 1271, 1273 (D. Nev. 2001) (same), wi th Ke ene v. Rinaldi , 127 F. Supp. 2d 770, 776 (M.D.N.C. 2000) (holding that public officials are not liable in their individual capacities under the FMLA). We begin our analysis wit h t he text of the statute. Doe v. KPMG, LLP , 398 F.3d 686, 688 (5th Cir. 2005). The FMLA provides, in relevant part: The term “employer”-- (i) means any person engaged in com merce or in any industry or activit y affecting com

merce who employs 50 or mo re employees fo r each working day during each of 20 or m

ore calendar workweeks in the current or preceding calendar year; (ii) includes-- (I) any person who acts, directly or indirectly, in the int e rest of an employer to any of the employees of such employer; and (II) any successor in interest of an employer; (iii) includes any “public agency”, as defined in section 203(x) of this ti tle; and (iv) includes the Government Accountability Office and the Li brary of Congress. 29 U.S.C. § 2611 (4)(A). The statute plainly includes in the definit io n of employer “any person who acts, directly or indirectly, in the int erest of an employer to any of the employees of such employer.” 29 U.S.C. § 2611(4)(A)(ii)(I). The statute further includes public agencies as employers. Id. § 2611 (4)(A)(iii). Therefore, if a public employee “acts, directly or indirectly, in the int erest of an employer,” he satisfies the definition of employer under the FMLA, and therefore, may be subject to l iabilit y in his individual capacity. Accord Darby , 287 F.3d at 681.15

The Sixt h Circuit rejected this int erpretation in Mitchell , holding th at “t he FMLA’s individual liabilit y provision does not extend to public agencies.” 343 F.3d at 832. The court of fered three reasons for its conclusion: First, Section 2611(4)(A) segregates the provision impo sing individual liabilit y from the public agency provision. Second, an int erpretation th at com mingles the individual liabilit y provision with the public agency provision renders certain provisions of the statute superfluous and results in several oddities. Finally, as evidenced by other provisions of the statute, the FMLA distinguishes it s definit io n of employer from th at provided in the [Fair Labor Standard Act (“FLSA”), 29 U.S.C. § 203] by separating the individual liabilit y and public agency provisions. Id. at 832. We address each argument in turn. The Sixt h Circuit concluded th at “ t he section defining ‘employer,’ 29 U.S.C. § 2611(4)(A), explicit ly separates the individual liabilit y provision and public agency provi sio n int o two di stinct clauses.” Mitchell , 343 F.3d at 829. The court reasoned Notwith standing this repeated and consistent use of the em dash, Section 2611(4)(A) lacks any punctuation demonstrating an int er-rel ationship between clauses (ii)-(iv). Indeed, the separation of otherwise related concepts (i .e., what the term “emplo yer” “includes”) int o distinctly enumerated clauses com pels an int erpretat io n that treats each clause in an independent manner. This is particularly the case in light of clause (ii) ’s inclusio n of an em dash preceding the individual liabilit y provision and successor in int erest provision. Id. at 830. We respectfully disagree. Congress’s use of the word “and” fo llo wing clause (iii) suggests th at there is som

e relationship between clauses (i)-(iv). Accord Hewett v. Willingboro Bd. of Educ. , 421 F. Supp. 2d 814, 819 (D.N.J. 2006) (“In any event, in light of Section 2611(4)(A)’s use of the inclusiv e term ‘and’ l

inking clauses (i)-(iv), the Court does not agree with Mitchell , 343 F.3d at 829-30, th at Congress int ended th ose provisions to be mut ually exclusive.”). Additionally, fo llo wing the Mitchell court’s own reasoning th at the em dash denotes an int er-rel ationship, Congress’s use of the em dash fo llo wing the term “emplo yer” indicates a relationship bet ween cl auses such that16

“emplo yer ‘“means” what is provided fo r in subparagraph (i) and “includes” what is provided fo r in subparagraphs (ii) , (iii) , and (iv).’” Sheaffer , 337 F. Supp. 2d at 728 (quoting Morrow , 142 F. Supp. 2d at 1273). The Mitchell court also concluded “t he com mingling of clau ses (i)-(iv) int o th e term ‘employer’ yields an int erpretation that renders other provisions of the statute superfluous, as well

as creates several oddities.” Mitchell , 343 F.3d at 830. Specifically, the Mitchell court reasoned th at “t he com mingling of clause (i) and (ii) wit h the public agency provision renders superfluous Section 2611(4)(B).” See id. at 831. T it le 29 U.S.C.§ 2611(4)(B) provides that “[f]or purposes of subparagraph (A)(iii), a public agency shall be considered to be a person engaged in com merce or in

an industry or activit y affecting com merce.” The court further noted that “a public agency does not have to meet the 50 employee requirement to be considered an employer under the statute.” Mitchell , 343 F.3d at 831 (citing 29 C.F.R. § 825.104(a)). We do not find these arguments persuasive. As the Morrow court recognized, [w]hile this statute becomes recursive when applied to supervisory personnel, because the definit io n of employer refers back to the word employer it self, there is no reason to assume th at the term “emplo yer” in subparagraph 4(A)(ii) means anything other th an what Congress defined it to mean in the various definitions of paragraph 4(A). 142 F. Supp. 2d at 1272-73. Contrary to the Mitchell court’s reasoning, section 2611(4)(B) is not superfluous under this reading, it relieves plaintiffs of the burden of proving that a public agency is engaged in com

merce. See Hewett , 421 F. Supp. 2d at 820. The mo st straight fo rward reading of the text com pels the conclusion th at a public employee may be held individually liable under the FMLA. Finally, the Sixt h Circuit reasoned th at “[a] def i nit io n of employer th at inco rporates the individual liabilit y provision and public agency provision int o a single clause is substantially similar to, if not identical, to the FLSA’s definition of employer ” and that Congress would have expressly17

adopted the FLSA’s definit io n of employer if it int ended the definit io ns to be identical. Mitchell , 343 F.3d at 831. We disagree. The definit io n of “emplo yer” under the FMLA is very similar to the definit io n of “emplo yer” under the FLSA. The FLSA includes wit hin the definit io n of “emplo yer” “any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency, but does not include any labo r organization (other th an when acting as an employer) or anyo ne acting in the capacity of of

ficer or agent of such labo r organization.” 29 U.S.C. § 203(d). Accordingly, several courts have concluded that the term “employer” should be interpreted the same under both statutes. S ee, e.g. , Wascura , 169 F.3d at 685-86 (“[T]he FMLA’s definition of ‘employer’ is mo re similar t o, actually it is mat erially ident ical wit h, the definition of ‘employer’ used in the Fair Labor Standards Act (‘FLSA’), 29 U.S.C. § 203(d).”); Cantley , 179 F. Supp. 2d at 657-58 (“Another factor courts have considered when determ ining whether individual liabilit y exists is the similarit y between the statutory definit io ns of “employer” under the FMLA and the FLSA.”). Additionally, the Code of Federal Regulations provides: “Employers covered by FMLA also include any person acting, directly or indirectly, in the interest of a covered employer to any of the employees of the employer, any successor in int erest of a covered employer, and any public agency.” 29 C.F.R. § 825.104(a). This is virtually the same as the definit io n provided in the FLSA except th at the FMLA definit io n includes successors in int erest and does not reference labo r organizations. See Hewett , 421 F. Supp. 2d at 821 (rej ecting the Mitchell court’s argument regarding Congress’s failure to reference the FLSA in the FMLA’s definit io n of employer and noting “it would have been curious fo r the FMLA to have inco rporated the FLSA’ s definit io n of ‘employer,’ as that definition makes explicit reference to ‘labor organizations’”). Further the Code of Federal Regulations also explains:18

An “emplo yer” includes any person who acts directly or indirectly in the int erest of an employer to any of the employer’s employees. The definit io n of “employer” in section 3(d) of the Fair Labor Standards Act (FLSA), 29 U.S.C. 203(d), similarly includes any person acting directly or ind ir ectly in t he int erest of an employer in relation to an employee. As under the FLSA, individuals such as corporate of ficers “acting in the int erest of an employer” are individually liable fo r any vio lat io ns of the requirements of FMLA. 29 C.F.R. § 825.104( d). Accordingly, we agree with the W ascura court th at “[t]he fact th at Congress, in drafting the FMLA, chose to make the definition of ‘employer’ materially identical to th at in the FLSA means th at decisions int erpreting the FLSA of fer the best guidance for construing the term ‘employer’ as it is used in the FMLA.” Wascura , 169 F.3d at 686. We have previously held th at a sheriff is an employer fo r purposes of the FLSA. Lee v. Coahoma County, Miss. , 937 F.2d 220, 226 (5th Cir. 1991), amended by 37 F.3d 1068 (5th Cir. 1993). Therefore our conclusion th at plain language of the FMLA permits public employees to be held individually liable is consistent wit h our holding in Lee

. Cf. Wascura , 169 F.3d at 686 (“Thus, Welch [ v. Laney , 57 F.3d 1004 (11th Cir. 1995),] establishes as the law of this circuit th at a public of ficial sued in his individual capacity is not

an ‘employer’ subject to individual liabilit y under the FLSA. Because ‘employer’ is defined the same way in the FMLA and FLSA, Welch control s this case.”). Consequently, the district court did not err in holding th at Humphrey may be liable as an e mplo yer under the FMLA. We turn now to Humphrey’s contention th at the district court erred in concluding she was not entitled to qualified immunit y. 2. Whether Humphrey is entitled to qualified immunity Humphrey argues th at she is entitled to qualified immunit y because the FMLA was not clearly established at the time Modica’s employment was term inat ed. Specifically, she argues th at it was not19

clear whether the TCC was subject to the FMLA because it employs fewer th an fift y employees. We are not persuaded. As noted above, 29 C.F.R. § 825.108(d) provides: All public agencies are covered by FMLA regard less of the num ber of employees; they are not subject to the coverage th reshold of 50 employees carried on the payroll ea c h day fo r 20 or mo re weeks in a year. However, employees of public agencies must meet all of the requirements of eligibilit y, including the requirement that the employer (e.g., State) employ 50 employees at the worksite or within 75 miles. Humphrey’s lack of knowledge th at public agencies are subject to th e FMLA regardless of the number of employees does not mean the law was not clearly established. See Mitchell , 343 F.3d at 831 (“[I]t is well-settled th at a public agency does not have to meet the 50 employee requirement to be considered an employer under the statute.”). Thus, we agree wit h the district court th at it was clearly established th at public agencies were subj ect to the FMLA regardless of the number of employees when Humphrey term inat ed Modica’s employment. Nevertheless, this does not end our inquiry. Humphrey asserts th at the rights and protections defined by the FMLA were not clearly established in 2003, there fo re she should not be subject to personal liability for her decision to discharge Modica. But Humphrey does not argue th at she is entitled to qualified immunity because the law was not clearly established that she, as an employee of a public agency, is potentially liable

as an “emplo yer” to Modica fo r retal iat io n against her fo r exercising rights under the FMLA. Despite her failure to make this specific argument, we conclude that her qualified immunity assertion is not waived fo r two reasons. First, alt hough Humphrey failed to develop an explicit legal argument on this ground, she raised the qualified immunit y defense in response to Modica’s FMLA claim; therefore, it was Modica’s burden to prove th at the law was clearly established. Atteberry , 430 F.3d at 253; cf

.20

Marshall v. Allen , 984 F.2d 787, 797-798 (7th Cir. 1993) (stating th at where “t he defendants raised

a qualified immunit y defense wit h regard to the entirety of the [pl aint iff] ’s First Amendment claim,” “[t]h e failure of the defendants to make a supporting argument regarding the state of the law on freedom of association should not result in waiver of the defendants’ claim to qualified immunit y on th at issue”). Second, in her mo tion fo r summary judgment, relying on Kazmier , 225 F.3d at 533, and Wascura , 169 F.3d 683, Humphrey asserted th at Modica had not shown th at the law was not clearly established th at public of ficials could be liable in their individual capacities under t he FMLA. Accordingly we consider whethe r Modi ca has shown that Humphrey’s actions were objectively unreasonable in light clearly established law; we conclude that she has not. As evidenced by the discussion above, individual public employee liabilit y is a subject of much debate amo ng the courts of appeals. See, e.g. , Mitchell , 343 F.3d at 832; Wascura , 169 F.3d at 687; Darby , 287 F.3d at 681. Al th ough today we join those courts that hold that public employees are subject to individual liabilit y under the FMLA, in the absence of a prior rul ing by the Supreme Court, this court, or a consensus amo ng our sist er circuits, we cannot say th at the law was clearly established in 2003 when these events giving rise to Modica’s allegations occurred. Cf. McClendon , 305 F.3d at 331-32 (“[W]hile a number of our sist er circuits had accepted some version of the state-created danger theory as of July of 1993, given the inco nsist encies and uncertainties wit hin this alleged

consensus of authorities, an of ficer acting wit hin the jurisdiction of this court could not possibly have assessed whether his or her conduct violated this right in the absence of explicit guidance from this court or the Supre me Court.”). Therefore, Humphrey is entitled to qualified immunit y against Modica’s FMLA claim because it was not clearly established that public employees are subject to21

indiv idual l

iabilit y under the FMLA when Humphrey terminated Modica’s employment, and the district court erred in failing to grant Humphrey’s motion for summary judgment on this ground. III. CONCLUSION For the fo regoing reasons, we AFFIRM the district court’s denial of Humphrey’s mo tion fo r

s ummary judgment premised on qualified immunit y on Modica’s First Amendment claim and REVERSE the district court’s denial of Humphrey’s mo tion fo r summary j udgment on Modica’s FMLA retaliation claim.