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Click here for the full text of this decision FACTS: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 in a letter sent to the chairman of the TCC. Modica also attended a TCC meeting during which she addressed the TCC regarding Perkins’ demotion and made other complaints. According to Modica, following the TCC meeting, her supervisors retaliated against her in various ways. 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. 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 Rep. Roberto Gutierrez accusing the TCC and its executive director of various misdeeds. In June 2002, Modica applied for the position of executive director. 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 she was charged with responding to Modica’s complaints. Accordingly, she met in person with 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 Nov. 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 Aug. 1, 2003. On Aug. 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 Nov. 12, 2003; consequently, she did not report to work on Sept. 2 as expected. On Sept.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, 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 Modica’s Title VII claim as untimely. Nevertheless, the court concluded that there were genuine issues of material fact regarding whether Humphrey actually terminated Modica for requesting FMLA leave or writing the letter to 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. HOLDING:The court affirmed the district court’s denial of Humphrey’s motion for summary judgment premised on qualified immunity on Modica’s First Amendment claim and reversed the district court’s denial of Humphrey’s motion for summary judgment on Modica’s FMLA retaliation claim. The court concluded that Modica alleged a violation of a clearly established right and affirmed the district court’s denial of summary judgment on Modica’s First Amendment retaliation claim based on Humphrey’s assertion of qualified immunity. The court also found that the district court did not err in holding that Humphrey may be liable as an employer under the FMLA. Nonetheless, the court held that Humphrey was entitled to qualified immunity because the law was not clearly established that she, as an employee of a public agency, was potentially liable as an “employer” to Modica for retaliation against her for exercising rights under the FMLA. The court elaborated: “Although today we join those courts that hold that public employees are subject to individual liability under the FMLA, in the absence of a prior ruling by the Supreme Court, this court, or a consensus among our sister circuits, we cannot say that the law was clearly established in 2003 when these events giving rise to Modica’s allegations occurred . . . . “Therefore, Humphrey is entitled to qualified immunity against Modica’s FMLA claim because it was not clearly established that public employees are subject to individual liability 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.” OPINION:Stewart, J; Higginbotham, Davis, and Stewart, J.J.

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