D. Maryland Notes Split Re Whether Public Employees Can Be Held Liable in their Individual Capacities for FMLA Violations

Per Sadowski v. U.S. Postal Service, --- F.Supp.2d ----, 2009 WL 2496282 (D. Md. Aug. 17, 2009):

The precise issue raised in the pending motion is whether or not public employees, such as Defendant Walls and Edward Weche, can be held liable in their individual capacities for violations of the Family and Medical Leave Act (“FMLA”). This is an issue previously addressed by this Court thirteen years ago, which now requires a more detailed analysis in light of subsequent case law. See Knussman v. State of Md., 935 F.Supp. 659, 664 (D.Md.1996). Resolution of this strictly legal question centers on the FMLA's definition of “employer,” which is contained in 29 U.S.C. § 2611(4)(A).

There is no directly applicable case law from either the Supreme Court or the United States Court of Appeals for the Fourth Circuit on the issue presented herein. There is also a nationwide split of decisional authority on this issue at both the appellate and trial levels, and the parties have agreed that the “courts are in some disarray over this issue.” In fact, not only is there a split of authority among the circuit courts of appeal, but the district courts within the Fourth Circuit are also split. Indeed, this Court's opinion in this case is at variance with an opinion it issued thirteen years ago. See Knussman, 935 F.Supp. at 664.

On the one hand, the Sixth and Eleventh Circuits have concluded that public employees cannot be held individually liable under the FMLA. See Mitchell v. Chapman, 343 F.3d 811 (6th Cir.2003), cert denied, 542 U.S. 937 (2004); Wascura v. Carver, 169 F.3d 683 (11th Cir.1999). . . . On the other hand, however, the Fifth and Eighth Circuits have adopted the opposing position, concluding that public employees may be held individually liable under the FMLA. See Modica v. Taylor, 465 F.3d 174 (5th Cir.2006); Darby v. Bratch, 287 F.3d 673 (8th Cir.2002).

. . .

This Court finds convincing the reasoning given in Mitchell v. Chapman, 343 F.3d 811 (6th Cir.2003) and Keene v. Rinaldi, 127 F.Supp.2d 770 (M.D.N.C 2000), and therefore concludes that the language of the FMLA prohibits public employees from being found individually liable.