Supervisor liability under the Family and Medical Leave Act.

• Author: Borrasso, Ava J.

The Judicially Created Public Official Exception

The 11th Circuit stands alone in holding that personal liability does not exist against individuals for FLSA violations.

On the 11th Circuit's first occasion to address the meaning of the term "employer" under the Family and Medical Leave Act (FMLA or "the act"), the court held that individual liability does not exist under the act. Wascura v. Carver, 169 F.3d 683 (11th Cir. 1999). In so holding, the Court of Appeals for the 11th Circuit set forth the first pronouncement by any circuit interpreting the term "employer" under the act--an issue which had been addressed by many district courts since enactment of the act in 1993. The court's analogy and adherence to the determination made in Welch v. Laney, 57 F.3d 1004 (11th Cir. 1995), that a public official was not subject to individual liability under the Fair Labor Standards Act (FLSA), creates a limitation in application of the FMLA not addressed by the act itself. By creating a barrier from the reach of the FMLA to individual public officials, the court has drawn a line that Congress did not. While the opinion may be distinguished by subsequent plaintiffs faced with discrimination by private sector employers, it is unclear whether other circuits free from the shackles of Welch v. Laney will recognize any limitation on individual liability, public or private sector.

In Wascura, the 11th Circuit made two significant determinations: 1) the term "employer" in the FMLA should be interpreted consistently with the similar definition set forth in the Fair Labor Standards Act (FLSA); and 2) public officials are not "employers" and, therefore, are not subject to individual liability under the FMLA. The first determination is in line with the majority of lower courts analyzing the issue as well as the statutory language, legislative history, and regulations promulgated pursuant to the FMLA. However, the second determination is more controversial as it is based on an interpretation of the FLSA which is in conflict with the majority of circuit courts addressing the issue as well as prior decisions in this circuit. By holding that public officials are not subject to personal liability under the FMLA, the court essentially created an exception to application of the act against public officials which is not supported by any language in the act itself. As a result, the first determination as to whether individual liability exists under the FMLA is that it does not--as long as you are a public official.

Factual Background and Proceedings

Rosemary Wascura, former city clerk for the City of South Miami, instituted an action against the City of South Miami and former city commissioners for allegedly violating her rights under the Family and Medical Leave Act. As alleged in the complaint, Ms. Wascura served as city clerk of the city for nearly 14 years before being discharged, not because of job performance, but because she informed the city that her son had Acquired Immune Deficiency Syndrome and that she may need time from work to care for him. At the time she was fired, Ms. Wascura had accumulated some 900 hours of unused vacation time and sick leave. Prior to her discharge at a city council meeting, the former city mayor demanded Ms. Wascura's resignation for unspecified reasons. When Ms. Wascura refused to resign, she was discharged upon motion of the mayor and vote of the commissioners in May 1995.

The complaint alleged that the mayor, commissioners, and city discharged Ms. Wascura as a result of exercising her rights under the FMLA. The commissioners were Ms. Wascura's supervisors with the sole responsibility for hiring and firing her. The commissioners moved to dismiss the complaint on the grounds that the FMLA does not impose individual liability. The commissioners subsequently amended their motion to assert the defense of qualified immunity. The city was not a party to the motion or appeal. The district court denied the commissioners' motion to dismiss and thereafter they filed their answers denying liability.

District Court Opinion

The U.S. District Court for the Southern District of Florida relied on the definition of the term "employer" under the FLSA, rejecting the commissioners' invitation to employ the definition of the same term as set forth in the antidiscrimination statutes such as the American with Disabilities Act, 42 U.S.C. [sections] 12111(5) (1999); the Civil Rights Act of 1964 (Title VII), 42 U.S.C. [sections] 2000e(b) (1999); and the Age Discrimination in Employment Act, 29 U.S.C. [sections] 630(b) (1999). The district court also rejected the commissioners' claim that they were entitled to qualified immunity, reasoning that the language of the FMLA was clear and not abstract and, as such, the commissioners should have understood that the alleged acts constituted a violation of its provisions.

The commissioners appealed, reiterating the argument that the FMLA should be interpreted in line with antidiscrimination statutes--none of which have been held to impose individual liability. The commissioners also argued that denial of their qualified immunity claim required reversal because liability under the FMLA was not clearly established due to the fact that not a single case within the jurisdiction had...