Public Official Held To Be Individually Liable In FMLA Case

In Ainsworth v. Loudon County School Board, 2012 U.S. Dist. LEXIS 36114 (E.D.Va. March 16, 2012) Judge Cacheris of the Eastern District of Virginia, sitting in Alexandria, recently held that “public employees who act directly or indirectly in the interests of their employer may themselves be considered ‘employers’ subject to suit in their individual capacities under the FMLA.” In doing so, Judge Cacheris noted that the circuits have split on this issue, with the Fifth and Eighth Circuits finding individual liability (Modica v. Taylor, 465 F.3d 174, 184-87 (5th Cir. 2006); Darby v. Bratch, 287 F.3d 673, 681 (8th Cir. 2002)) and the Sixth and Eleventh Circuits reaching the opposite conclusion (Mitchell v. Chapman, 343 F.3d 811, 825-33 (6th Cir. 2003); Wascura v. Carver, 169 F.3d 683, 685-87 (11th Cir. 1999)). Further, Judge Cacheris notes that the Fourth Circuit, while recognizing that the issue is an open question, expressed no opinion on the issue in Jones v. Sternheimer, 387 F. Appx. 366, 369 (4th Cir. 2010). Finally, while recognizing that district courts within the Fourth Circuit are also split, Judge Cacheris ultimately adopts the reasoning of cases like Weth v. O’Leary, 796 F. Supp. 2d 766, 776-77 (E.D.Va. 2011) (Brinkema, J.).  

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