For the latest on circuit splits in the news, follow the links below:
Kevin Walsh, Anomalous but not absurd: Fourth Circuit splits from Third and Ninth on interpretation of FTCA’s “law enforcement proviso”, Walsh Law Blog (Mar. 16, 2012) (click here).
Are public employees subject to individual liability under the FMLA? I've been following the circuit split over this question since the beginning of the year as it continues to percolate through the lower courts. Back in January (here), we looked at a provision in the FMLA that has led some courts to answer the question presented above in the affirmative, while other courts have answered the question in the negative.
Last Friday the Eastern District of Virginia joined the split over this issue in holding that "public employees may be sued in their individual capacities for alleged violations of the FMLA." Ainsworth v. Loudon Cnty. Sch. Bd., No. 1:11-cv-1228 (JCC/JFA) (E.D. Va. Mar. 16, 2012). The court's opinion in Ainsworth provides a nice summary of the growing body of conflicting authority over this issue:
The Individual Defendants first argue that the FMLA does not permit liability against public employees in their individual capacities. There is a split of authority as to whether public employees qualify as "employer[s]" and hence may be held individually liable under the FMLA. The Fifth and Eighth Circuits have concluded, based on the statutory text, that public employees may be sued in their individual capacities under the FMLA if they act directly or indirectly in the interest of their employer — for example, by exercising hiring and firing authority. See Modica v. Taylor, 465 F.3d 174, 184-87 (5th Cir. 2006); Darby v. Bratch, 287 F.3d 673, 681 (8th Cir. 2002). The Sixth and the Eleventh Circuits have reached the opposite conclusion. See Mitchell v. Chapman, 343 F.3d 811, 825-33 (6th Cir. 2003); Wascura v. Carver, 169 F.3d 683, 685-87 (11th Cir. 1999). The Fourth Circuit has yet to rule on this issue, see Jones v. Sternheimer, 387 F. App'x 366, 369 (4th Cir. 2010) (recognizing that the issue is an open question, and expressing no opinion on the viability of [plaintiff's] claim), while district courts within the Fourth Circuit are split). See Weth v. O'Leary, 796 F. Supp. 2d 766, 776-77 (E.D. Va. 2011), Sheaffer v. Cnty. of Chatham, 337 F. Supp. 2d 709, 727-29 (M.D.N.C. 2004), Cantley v. Simmons, 179 F. Supp. 2d 654, 657-58 (S.D. W.Va. 2002) and Knussman v. State of Maryland, 935 F. Supp. 659, 664 (D. Md. 1996) (public employees can be individually liable under the FMLA) with Sadowski v. U.S. Postal Serv., 643 F. Supp. 2d 749, 757 (D. Md. 2009), Miller v. Cnty. of Rockingham, No. 5:06cv00053, 2007 WL 990135, at *4 (W.D. Va. Mar. 30, 2007) and Keene v. Rinaldi, 127 F. Supp. 2d 770, 777-78 (M.D.N.C. 2000) (public employees cannot be held individually liable under the FMLA). The majority view appears to be that public employees may be individually liable under the FMLA. See Weth, 796 F. Supp. 2d at 776 (citations omitted).
This issue is particularly ripe for review by the Supreme Court for several reasons:
First, the conflict of law is both deep (dividing both district and appellate courts) and wide (the Fifth and Eighth Circuits are evenly divided with the Sixth and Eleventh Circuits; while the Fourth Circuit has acknowledged the split, but has declined to take a position).
Second, the issue has been sufficiently vetted at the district-court level (otherwise known as "percolation"), as evidenced by the volume and variety of district-court decisions addressing the issue.
Third, the fact that the issue continues to resurface more than a decade after the Eleventh Circuit's early decision on the matter suggests that it has had enough time to "mature" (i.e., if the Supreme Court decides to decide this issue, it will have more than ten years of briefing and analysis by the lower courts on the issue at its disposal).
Fourth and finally, the issue affects public employers. This factor greatly enhances the issue's certworthinesss because cert. petitions filed in the Supreme Court by public employers are more likely to raise important constitutional questions, the resolution of which will likely impact a greater number of people than a petition filed by an individual.
Rest assured that CircuitSplits.com will be watching this one closely as it makes its way to the Supreme Court.
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:
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);
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);
In 1993, President Clinton signed into law the Family and Medical Leave Act (FMLA). For a brief summary of this legislation, fast forward to 3:54 and watch the first twenty seconds or so of the following video:
The FMLA makes it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right" under the FMLA, included those mentioned by President Clinton in the video above. 29 U.S.C. § 2615(a)(1) (emphasis added). As a federal court in Oklahoma explained earlier this week, the FMLA provides two rights of action against employers: one for “interference,” and one for “retaliation.” Jeffers v. Redlands Cmty. College Bd. of Regents, No. CIV-11-1237- HE, 2012 U.S. Dist. LEXIS 5562, at *5 n.3 (D. Okla. Jan. 18, 2012).
The FMLA defines the term “employer” as meaning
any person engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year
29 U.S.C. § 2611(4)(A)(i). Subsection (A)(iii) notes that the term “employer” includes “public agencies.” The litigants in this case conceded that the definition of "employers" with regard to private employers covered employees as well. Does this, by logical extension, mean that employees of public agencies, like their counterparts in the private sector, may also be sued under the FMLA?
As the court in Jeffers recently explained, a circuit split has emerged over this question: "There is a split among the courts of appeal on this issue. Compare Mitchell v. Chapman, 343 F.3d 811, 832 (6th Cir. 2003), and Wascura v. Carver, 169 F.3d 683, 687 (11th Cir. 1999) (holding individual public employees are not 'employers' under the FMLA), with Modica v. Taylor, 465 F.3d 174, 184-86 (5th Cir. 2006), and Darby v. Bratch, 287 F.3d 673, 680-81 (8th Cir. 2002) (holding the opposite)." Jeffers, 2012 U.S. Dist. LEXIS 5562, at *5–6.
The court continued,
The Tenth Circuit has not yet squarely addressed it.The court concludes the interpretation by the Fifth and Eighth Circuits is more persuasive as to the reach of the statute, principally because the statute's definition of "employer" is inclusive and subsections (ii) and (iii) should be read together. Therefore, plaintiff has stated an FMLA claim against defendant Andrade.
