Last month we looked at a circuit split over whether the Family and Medical Leave Act (FMLA) provides a cause of action against public employers. (You can read the post here.) To briefly recap, the FMLA tosses public agencies in the pool of deep-pocketed "employers" that may be sued for either (1) interfering with an employee's rights under the statute or (2) retaliating against an employee for exercising his or her right to take family or medical leave under the statute.
Last week, the Third Circuit tackled this issue of first impression in Haybarger v. Lawrence Cty. Adult Probation and Parole, No. 10-3916 (3d Cir. Jan. 31, 2012). One of my favorite blawgs, Lawffice Space, featured Haybarger as its "Case of the Week." Here's an excerpt:
The Third Circuit started with number two. The FMLA defines "employer" to include "any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer." The definition also includes "any public agency." So, can we mix those two as a combo deal (i.e. an individual "person" and a "public agency"), to hold a supervisor at a public agency individually liable under the FMLA?
Third Circuit says . . . YES! The Sixth and Eleventh Circuits have already said NO. The Fifth and Eighth, and now the Third, have all said YES (I guess that makes it the "majority view"?). It's a pretty big Circuit split on a fairly common issue so this could make a good Supreme Court case one day.
You can read the post in its entirety here. For those keeping score at home, here are the cases forming the circuit split mentioned above:
- Haybarger v. Lawrence Cty. Adult Probation and Parole, No. 10-3916, at 10 (3d Cir. Jan. 31, 2012) ( "an individual supervisor working for an employer may be liable as an employer under the FMLA."); Kilvitis v. Cnty. of Luzerne, 52 F. Supp. 2d 403, 415 (M.D. Pa. 1999) (same); Hewett v. Willingboro Bd. of Educ., 421 F. Supp. 2d 814, 818 (D. N.J. 2006) (same); Hayduk v. City of Johnstown, 580 F. Supp. 2d 429, 477 (W.D. Pa. 2008);
- Modica v. Taylor, 465 F.3d 174, 184 (5th Cir. 2006);
- Darby v. Bratch, 287 F.3d 673, 681 (8th Cir. 2002);
- Mitchell v. Chapman, 343 F.3d 811, 829 (6th Cir. 2003) (concluding that the FMLA does not permit individual liability against supervisors employed by public agencies);
- Wascura v. Carver, 169 F.3d 683, 686 (11th Cir. 1999);
- Frizzell v. Sw. Motor Freight, 906 F. Supp. 441, 449 (E.D. Tenn. 1995), aff’d in part, rev’d in part on other grounds, 154 F.3d 641 (6th Cir. 1998) (concluding that an individual supervisor working for an employer may not be liable as an employer under the FMLA);
- Carter v. Rental Unif. Serv., 977 F. Supp. 753, 759 (W.D. Va. 1997) (same).