The Federal Sector FMLA Blog

Fifth Circuit Finds that Employees May Sue Individual Public Sector Managers for FMLA Violations

In Modica v. Taylor, No. 05-50075, 2006 U.S.App. LEXIS 23372 (5^th Cir. Sept. 13, 2006), the Fifth Circuit found that an employee of the Texas Cosmetology Commission could file a civil suit against the director of the Commission for violation of the FMLA.  In so finding the court determined that the Commission director, a public official, was an “employer” within the meaning of the FMLA.  The court came to that conclusion based on its reading of the statue and DOL regulations.  Critically an employer is defined as “any person who acts, directly or indirectly, in the interest of an employer.”  It also includes public agencies as employers.  The court reviewed the prevailing split in the circuit courts on public official individual liability for FMLA violations.  The court noted that the Sixth and Eleventh Circuits declined to recognize individual public official liability for FMLA violations based, in part, on its determination that the individual liability provision was separate and distinct from the public agency provisions defining an FMLA-covered “employer.”  The Fifth Circuit, however, joined the Eighth Circuit to find Congress, in drafting the FMLA, chose to make the definition of “employer” materially identical to that in the FLSA,” and it is well established that the FLSA permits public employers to be held individually liable.

Having found that the FMLA permits suit against individual public sector officials, the court  went on to find that the Commission director was entitled to qualified immunity from personal liability for discharging Modica because the law on this issue was not clearly established in 2003.  As support, the court cited the same split of authority regarding public employee individual liability for FMLA violations.   

Comment:  The circuits are split on individual public supervisor liability for violation of Title I of the FMLA.  Title II does not permit civil suit so there is no individual liability under that federal sector FMLA variant.  Employees of Congress and the Executive Office of the President are also not entitled to sue individual supervisors or managers for FMLA violations as the CAA and the PEOAA does not define an FMLA-covered employer to include “any person who acts, directly or indirectly, in the interest of an employer.”  Federal agencies with Title I employees should consult with counsel to determine whether managers or supervisors may be personally liable for violating a Title I employees FMLA rights.   The Fifth Circuit covers Texas, Louisiana, and Mississippi.      

Government Officials or Supervisors Cannot Be Held Individually Liable for FMLA Violations

In Gilbert v. Ohio Department of Rehabilitation & Corrections, et. al., 2006 U.S. Dist. LEXIS 13584 (S.D. Ohio March 28, 2006) the court dismissed claims against individually named supervisors for allegedly violating correctional officers FMLA rights.  Citing Sixth Circuit precedent, the court found that governmental officials or supervisors are not “employers” and cannot be held individually liable under the FMLA.

Comment:  The courts are split regarding individual supervisor liability under Title I of the FMLA.  The issue is addressed in Chapters 3 and 15 of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation (Dewey Publications, Inc. 2003 & 2005 Supp.).  Individual supervisor liability does not exist under the other federal sector variants of the FMLA.  Ohio, Kentucky and Tennessee are within the Sixth Circuit.

Court Upholds Individual Monetary Liability of Public Sector Officials for FMLA Violation

In Hewett v. Willingboro Bd. of Ed., No. 05-2035, 2006 U.S. Dist. LEXIS 12495 (D.N.J. March 15, 2006), the court found that the Executive Director of Human Resources and Administrative Services and the Superintendent of the Willingboro Public Schools may be individually liable for violations of the FMLA in addition to agency liability. The decision gives a fairly through analysis of the issue.

Comment:  Individual liability means that public officials can be personally sued for monetary damages for their involvement with FMLA violations.  Such liability may be in addition to any liability sought against the public agency itself.  The federal courts are split on whether Title I of the FMLA permits individual supervisor liability for violations of the FMLA.  Individual supervisor liability is not an issue under the CAA, the PEOAA, and Title II.  The issue is addressed in Chapter 15 of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation (Dewy Publications, Inc. 2003 & 2005 Supp.).