Circuits Split as to Whether Public Officials Can be Sued Individually Under the FMLA

The Fifth and Eighth Circuits have concluded that public officials can be sued in their individual capacities under the FMLA.  See Modica v. Taylor, 465 F.3d 174, 184-87 (5th Cir. 2006); Darby v. Bratch, 287 F.3d 673, 681 (8th Cir. 2002).  In contrast, the Sixth and Eleventh Circuits have held that FMLA suits against individual public officers are not cognizable.  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 not addressed this issue, and the district courts within the Fourth Circuit have reached contrary conclusions on the subject, with, for example, one judge on the Maryland federal district court bench allowing such claims (Knussman v. Maryland, 935 F. Supp. 659, 664 (D. Md. 1996) (Black, J.), and another judge on the same bench rejecting such a claim (Sadowski v. U.S. Postal Serv., 643 F. Supp. .2d 749, 753 (D. Md. 2009) (Bennett, J.) (recognizing the opinion in Sadowski is “at variance” with the decision in Knussman)).  Recently, Judge Brinkema of the Eastern District of Virginia held, in Weth v. O’Leary, 2011 U.S. Dist. LEXIS 74432 (E.D. Va. July 11, 2011) held that public officials who acted directly or indirectly in the interests of the employer can be personally liable in FMLA cases.

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