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SUPERVISOR OF PUBLIC AGENCY CAN BE LIABLE AS AN EMPLOYER UNDER THE FMLA

The United States Court of Appeals for the Third Circuit recently held that an individual supervisor may be liable for violating the Family and Medical Leave Act if he or she has sufficient control over the conditions and terms of employment of the employee claiming the FMLA violation. In the matter of Haybarger v. Lawrence County Adult Probation and Parole, County of Lawrence and William Mancino, the Third Circuit found that a supervisor is an “employer” under the FMLA despite the fact that the supervisor did not have the authority to terminate the employee.

In this case, the plaintiff, Debra Hayberger, worked as an office manager for the Lawrence County Adult Probation and Parole which is an agency of the Lawrence County Court of Common Pleas. Ms. Haybarger suffered from Type II diabetes, heart disease and kidney problems, which frequently required her to take medical leave from work. Ms. Haybarger’s supervisor, William Mancino often criticized Ms. Haybarger for taking the medical leave, including writing that she needed “[t]o improve her overall health and cut down on the days that she misses due to illness” in her annual performance evaluations.

In 2004, Mr. Mancino placed Ms. Haybarger on a six-month probationary period because of Ms. Haybarger’s conduct, work ethic, behavior, lack of leadership and supervisory skills. After the six months, Mr. Mancino stated that Ms. Haybarger’s employment did not improve and he made a recommendation to Judge Motto that Ms. Haybarger be terminated. Judge Motto agreed with Mr. Mancino’s recommendation and terminated Mr. Haybarger’s employment.

The District Court dismissed Ms. Haybarger’s FMLA claim against Mr. Mancino finding that Mr. Mancino did not have sufficient control of Ms. Haybarger’s employment because he did not have the authority to fire her. In reversing the District Court’s decision, the Third Circuit acknowledged that there was a split across the federal courts as to whether a supervisor of a public agency can be liable as an employer under the FMLA. The Fifth and Eighth Circuits has said that a supervisor of a public agency can be liable under the FMLA, yet the Sixth and Eleventh Circuits have said they cannot. In their decision, the Third Circuit sided with the Fifth and Eighth Circuit by rejecting to adopt a blanket rule that a public official cannot have the requisite control to be an employer under the FMLA and held that a supervisor can be held individually liable under the FMLA if he or she has control over the terms and conditions of an employee’s employment.

In turning to the facts of the case, the Third Circuit said that there existed genuine dispute of material facts concerning whether Mr. Mancino was Ms. Haybarger’s employer under the FMLA. The Third Court considered the control that Mr. Mancino had over Ms. Hayberger’s employment, that Mr. Mancino wrote the termination letter and was critical in the decision and that he was present during the meeting in which Ms. Haybarger was terminated. As a result, the Third Circuit remanded the case back to the district court to proceed to trial for a jury to decide whether Mr. Mancino was an employer under the FMLA.