Wednesday, January 9, 2013

Split Noted: Individual Public Employer Liability Under The FMLA

Per Diaz v. Mich. Dep't of Corr. (6th Cir. Jan. 7, 2013)

The Family Medical Leave Act (FMLA) conains both family-care and self-care provisions authorizing suits against employers--including public agencies--for monetary damages and injunctive relief.  The Supreme Court has held that money damages are obtainable in family-care suits against public employers, because those provisions were passed pursuant to Congress's authority to enforce the Fourteenth Amendment and therefore abrogate sovereign immunity.  Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 725 (2003).  Similar money damages suits based on the self-care provisions, however, are not permitted because the self-care provisions do not enforce the Fourteenth Amendment.  Coleman v. Court of Appeals of Md., 132 S. Ct. 1327, 1332 (2012).

Plaintiffs in this case attempt to work around Coleman, bringing 1983 "and laws" suits to enforce the self-care provisions.  And they are partially successful. 

In a well-reasoned opinion, the CA6 holds that the damages claims fail for multiple reasons (more on that anon).  Nonetheless, the court reverses the dismissal of the equitable claim for reinstatement by analogy to Ex Parte Young.

Among the reasons for dismissal of the damages claims were that the claims were pleaded against individual, rather than corporate, public employers.  The CA6 notes an entrenched split between the CA6 and CA11, on one hand, and CA8 and CA5 on the other, concerning whether individual public employer liability is permissible.  (p.8.)  Having reviewed the relevant cited cases, I applaud both the CA6 and the CA5 for their indepth analysis of the issue.  IMO, The CA5 has the best of the argument.

Here is the relevant statutory language defining employer:
(4) Employer

     (A) In general

     The term “employer”—

(i) means any person engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year;
(ii) includes
(I) any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer; and
(II) any successor in interest of an employer;
(iii) includes any “public agency”, as defined in section 203 (x) of this title; and
(iv) includes the Government Accountability Office and the Library of Congress.
     (B) Public agency

For purposes of subparagraph (A)(iii), a public agency shall be considered to be a person engaged in commerce or in an industry or activity affecting commerce.
29 U.S.C. 2611 (emphases added).  Given this text, it is clear that 4(A)(ii)(I) creates individual liability for supervisory employees, while 4(A)(iii) creates public employer liability.

The recursive nature of the text, i.e., the use of the term employer in the definition of employer, shows that public supervisory employees may be liable.  Witness the substitution of 4(A)(iii) for employer in 4(A)(ii)(I):
(I) any person who acts, directly or indirectly, in the interest of a[] public agency to any of the employees of such public agency; and
Further, as the CA5 convincingly demonstrates, the CA6's two arguments against individual liability ultimately fail.  (A third argument is omitted here for space.)

First, the CA6 relies on statutory structure, noting the separation between distinctly enumerated provisions (ii) and (iii).  This argument fails because the statute indicates that romanettes i-iv are all linked by use of the serial semi-colon: "(i) . . .; (ii) . . .; (iii) . . . ; and (iv)."  Moreover, it also overlooks the recursion of the term employer.

Second, the CA6 relies on what it discerns to be superfluity.  Specifically, it submits that recursion analysis, when combined with the difference between "means" in (i) and includes in (iii) renders the definition of public agency superfluous because (iii) is already included in (i).  Not so.  By including "public agency" in (iii), the statute expands the meaning of employer solely with respect to public agencies and relieves a plaintiff of the need to prove that the agency  "e,ploys 50 or more people . . . . ."

In all, good efforts by both courts, but I agree with the CA5.  Two parting notes.  One argument in favor of the CA6 is the definition of public agency fails to require that the agency be, well, public.  This omission is likely what prompted the superfluity point.  Nonetheless, I think this omission can be remedied by the very term being defined.

Second, in light of the immunity discussion above, you might wonder why the strict construction canon does not come into play.  Once again, the CA5 has a ready answer.  As a general rule the Eleventh Amendment does not bar suits against officers in their individual capacities. Hudson v. City of New Orleans, 174 F.3d 677, 687 n. 7 (5th Cir. 1999).

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