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.