                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 12-3842
                          ___________________________

                                     Barbara Hager

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

Arkansas Department of Health; Namvar Zohoori, individually and in his official capacity

                       lllllllllllllllllllll Defendants - Appellants
                                        ____________

                      Appeal from United States District Court
                  for the Eastern District of Arkansas - Little Rock
                                   ____________

                           Submitted: September 24, 2013
                             Filed: November 14, 2013
                                  ____________

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 (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
(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

                                         -2-
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 (2009).




                                          -3-
      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; 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 (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 (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.

       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
(1982). See also Iqbal, 556 U.S. at 685; Mitchell, 472 U.S. at 526 (“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 (2009) (“[D]istrict courts and the courts of

                                           -4-
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
(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 (2002), citing McDonnell Douglas Corp. v. Green, 411 U.S.
792, 801 (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

                                         -5-
her “similarly situated” allegation is sufficient because McDonnell Douglas is “an
evidentiary standard, not a pleading requirement.” Swierkiewicz, 534 U.S. at 510;
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. The complaint “must contain only ‘a
short and plain statement of the claim showing the pleader is entitled to relief.’” Id.
at 508. “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, citing Conley
v. Gibson, 355 U.S. 41, 47 (1957).

       In Twombly, the Supreme Court stated that Swierkiewicz did not change the law
of pleading. Twombly, 550 U.S. at 569. 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. “[L]egal conclusions can provide the framework
of a complaint” but “must be supported by factual allegations,” Iqbal, 556 U.S. at
679, that “raise a right to relief above the speculative level.” Twombly, 550 U.S. at
555. Thus, this court applies “the ordinary rules for assessing the sufficiency of a
complaint,” Swierkiewicz, 534 U.S. at 511, to consider whether Hager states a § 1983
claim for gender discrimination. See Twombly, 550 U.S. at 570.

      Hager relies primarily on Swierkiewicz. However, her complaint has far fewer
factual allegations than the complaint there. In Swierkiewicz, the complaint for age
and nationality discrimination alleged: the plaintiff was demoted and replaced by a
younger employee of the employer’s nationality; the replacement was inexperienced;
in promoting the younger, inexperienced employee, the employer wanted to
“energize” the department; the employer excluded and isolated plaintiff from business
decisions and meetings; plaintiff sent a memo outlining his grievances and tried to


                                         -6-
meet with the employer to discuss his discontent; and plaintiff was fired.
Swierkiewicz, 534 U.S. at 508-09.

       Hager makes only two conclusory allegations of gender discrimination: (1) she
“is a victim of gender discrimination;” and (2) she “was discharged under
circumstances summarily [sic] situated nondisabled males . . . were not.” She does
not allege any gender-related comments or conduct before her termination. See
Rondigo, 641 F.3d at 682 (granting qualified immunity in part because the complaint
contained no allegations of gender-based discriminatory actions). She also does not
allege facts showing that similarly situated employees were treated differently. See
Coleman v. Maryland Court of Appeals, 626 F.3d 187, 190-91 (4th Cir. 2010)
(plaintiff’s conclusory allegation that he “was treated differently as a result of his race
than whites”—even where plaintiff identified an alleged comparator—was
insufficient to sustain a Title VII claim because no factual allegations plausibly
suggested the comparator was similarly situated). See also Keevan, 100 F.3d at 648
(“To establish a gender-based claim under the Equal Protection Clause, the appellants
must, as a threshold matter, demonstrate that they have been treated differently by a
state actor than others who are similarly situated simply because appellants belong
to a particular protected class.”).

       In sum, Hager does not state a § 1983 claim for gender discrimination. Hager’s
allegation that she is the victim of gender discrimination fails to give Dr. Zohoori fair
notice of the claim and the grounds upon which it rests. See Swierkiewicz, 534 U.S.
at 512. Hager’s conclusory assertion that she was discharged under circumstances
similarly situated men were not imports legal language couched as a factual allegation
and fails to raise a right to relief above the speculative level. See Twombly, 550 U.S.
at 555. The district court erred in denying Dr. Zohoori’s motion to dismiss the § 1983
claim.




                                           -7-
                                         B.

      Hager alleges a claim for “interfering with exercise of Plaintiff’s rights under
the FMLA.” Under the categorization in Pulczinski v. Trinity Structural Towers, Inc.,
691 F.3d 996 (8th Cir. 2012), Hager’s “interference” claim is an entitlement claim.
Pulczinski, 691 F.3d at 1005-06. “The FMLA entitles an employee to twelve
workweeks of leave during any twelve-month period if he or she has a ‘serious health
condition that makes the employee unable to perform the functions of the position of
such employee.’” Sisk v. Picture People, Inc., 669 F.3d 896, 899 (8th Cir. 2012),
quoting Wierman v. Casey’s Gen. Stores, 638 F.3d 984, 999 (8th Cir. 2011), quoting
29 U.S.C. § 2612(a)(1)(D). An FMLA entitlement claim arises when an employer
denies or interferes with an employee’s substantive FMLA rights. Scobey v. Nucor
Steel-Arkansas, 580 F.3d 781, 785 (8th Cir. 2009).

       An employee seeking FMLA leave must give the employer notice of the need
for leave and indicate when she anticipates returning to work. Id. at 785-86. See also
Rynders v. Williams, 650 F.3d 1188, 1196-97 (8th Cir. 2011) (plaintiff must prove
she gave timely notice to defendant himself). Although the notice need not
specifically invoke the FMLA, an employee “must provide information to suggest
that [her] health condition could be serious.” Scobey, 580 F.3d at 786. When the
leave is foreseeable, the employee must give at least thirty days notice. 29 C.F.R. §
825.302. When the leave is not foreseeable, “an employee must provide notice to the
employer as soon as practicable under the facts and circumstances of the particular
case.” 29 C.F.R. § 825.303.

      Hager alleges that she “saw a physician regularly for her cataracts,” but “[o]n
May 13, 2011, [Dr. Zohoori] instructed her to cancel the doctor’s appointment so she
and he could discuss a report.” She also avers that she explained “the reason she
needed to go to the doctor,” that “she could not cancel the appointment,” and why she
could not cancel. These allegations do not state an FMLA entitlement claim. While

                                         -8-
Hager alleges that she provided information suggesting a serious health condition, she
does not allege that she provided timely notice. Hager’s pleadings at best suggest Dr.
Zohoori was aware of her leave request immediately prior to the appointment. They
do not assert that she provided notice within thirty days or “as soon as practicable
under the circumstances.” Nor do they assert that she indicated when she would
return. See generally Bosley v. Cargill Meat Solutions Corp., 705 F.3d 777, 780 (8th
Cir. 2013) (there is a “rigorous notice standard for employees seeking to use FMLA
leave for absences”).

       The district court erred in denying Dr. Zohoori’s motion to dismiss the FMLA
entitlement claim.

                                         C.

       Hager also alleges a claim for “retaliating against her.” Under the
categorization in Pulczinski, Hager’s “retaliation” claim is a discrimination claim.
Pulczinski, 691 F.3d at 1006. In a discrimination claim, “the employee alleges that
the employer discriminated against her for exercising her FMLA rights.” Sisk, 669
F.3d at 899, quoting Wierman, 638 F.3d at 999. Absent direct evidence, an FMLA
discrimination claim is analyzed under the McDonnell Douglas burden-shifting
framework. Sisk, 669 F.3d at 899. The plaintiff must “show that she exercised rights
afforded by the Act, that she suffered an adverse employment action, and that there
was a causal connection between her exercise of rights and the adverse employment
action.” Phillips v. Mathews, 547 F.3d 905, 912 (8th Cir. 2008), quoting Smith v.
Allen Health Sys., Inc., 302 F.3d 827, 832 (8th Cir. 2002). This is an evidentiary,
not a pleading, standard. Swierkiewicz, 534 U.S. at 510.

      Hager alleges that Dr. Zohoori discriminated against her—firing her—because
she exercised her FMLA rights—tried to take leave for a doctor’s appointment, which
was “necessary to insure that [her] condition did not develop into a serious health

                                         -9-
condition, cataracts.” If Hager had properly alleged notice, these allegations would
be sufficient. See Wehrley v. American Family Mut. Ins. Co., 513 Fed. Appx. 733,
742 (10th Cir. 2013) (“Three other circuits have concluded that notifying an employer
of the intent to take FMLA leave is protected activity. . . . We are persuaded to follow
these circuits.”), citing Pereda v. Brookdale Senior Living Communities, Inc., 666
F.3d 1269, 1276 (11th Cir. 2012); Erdman v. Nationwide Ins. Co., 582 F.3d 500, 509
(3d Cir. 2009); Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 314 (6th Cir.
2001). However, because Hager failed to plead notice of intent to take FMLA leave,
and that she was qualified for that leave, she has not sufficiently alleged that she
exercised FMLA rights. See Nicholson v. Pulte Homes Corp., 690 F.3d 819, 828
(7th Cir. 2012) (“The district court held that because Nicholson did not provide
sufficient notice of the need for FMLA-qualifying leave, she never engaged in any
activity protected by the FMLA. For the reasons we have explained, we agree.”).

      The district court erred in denying Dr. Zohoori’s motion to dismiss the FMLA
discrimination claim.

                                          IV.

       Although Hager did not move to amend the complaint in the district
court—where the relevant pleadings were found sufficient—she requests remand to
allow an amended complaint for any claims insufficiently pled. Hager should be no
worse off, and no better off, than she would have been if the district court had granted
the motion to dismiss. See Horras v. American Capital Strategies, Ltd., 729 F.3d
798, 804-05 (8th Cir. 2013) (evaluating standards applicable to post-judgment
motions). This court remands for the district court to consider whether to allow
Hager to amend her pleadings. See Zenith Radio Corp. v. Hazeltine Research, Inc.,
401 U.S. 321, 330 (1971) (granting leave to amend is within the discretion of the
district court).


                                         -10-
                                          V.

       The Arkansas Department of Health requests that this court exercise its pendent
appellate jurisdiction to review the district court’s partial denial of its motion to
dismiss. See Langford v. Norris, 614 F.3d 445, 457 (8th Cir. 2010) (“[W]hen an
interlocutory appeal is before us . . . as to the defense of qualified immunity, we have
jurisdiction also to decide closely related issues of law, i.e., pendent appellate
claims.”) (internal quotation marks omitted), quoting Kincade v. City of Blue
Springs, Mo., 64 F.3d 389, 394 (8th Cir. 1995). The Department maintains that
Hager’s claims against it are inextricably intertwined with her claims against Dr.
Zohoori. The Department reasons that if Hager’s “similarly situated” allegation does
not sustain her § 1983 and FMLA discrimination claims against Dr. Zohoori, it
cannot sustain her Title VII and Rehabilitation Act claims against the Department.

      “[A] pendent appellate claim can be regarded as inextricably intertwined with
a properly reviewable claim on collateral appeal only if the pendent claim is
coterminous with, or subsumed in, the claim before the court on interlocutory
appeal—that is, when the appellate resolution of the collateral appeal necessarily
resolves the pendent claim as well.” Kincade, 64 F.3d at 394, quoting Moore v. City
of Wynnewood, 57 F.3d 924, 930 (10th Cir. 1995). See also Lockridge, 315 F.3d at
1012. Here, resolution of the “similarly situated” issue may illuminate the
Department’s argument that Hager failed to state a claim against it. However, the
Department’s claims are not coterminous with or subsumed in Dr. Zohoori’s claims.
Hager sues under different statutes, and the Department cannot invoke qualified
immunity. This court does not have jurisdiction to hear the Department’s appeal.

                                       *******




                                         -11-
       The denial of Dr. Zohoori’s motion to dismiss the § 1983 claim, the FMLA
entitlement claim, and the FMLA discrimination claim is reversed. This case is
remanded for proceedings consistent with this opinion.
                      ______________________________




                                     -12-
