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Hager v. Arkansas Dept. of Health

United States Court of Appeals, Eighth Circuit

November 14, 2013

Barbara HAGER, Plaintiff-Appellee
v.
ARKANSAS DEPARTMENT OF HEALTH; Namvar Zohoori, individually and in his official capacity, Defendants-Appellants.

Submitted: Sept. 24, 2013.

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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 ...


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