Haybarger v. Lawrence County Adult Probation & Parole, 667 F.3d 408 (3d Cir. 2012). Plaintiff Debra Haybarger worked for defendant, an agency of the Pennsylvania Court of Common Pleas. Plaintiff has several serious illnesses that caused her to miss much work time. Her supervisor, William Mancino, “expressed dissatisfaction with her absences despite recognizing that they were due to illness.” Mancino put Haybarger on a six-month probationary period and, when her performance did not improve, recommended to his superior, Judge Dominick Motto, that plaintiff be terminated. Judge Motto permitted Mancino to terminate plaintiff. Haybarger then sued several defendants, including Mancino, under various statutes, including the Family Medical Leave Act, 29 U.S.C. §2601 et seq. (“FMLA”).
The district court ruled that Mancino could be liable under FMLA, but that plaintiff had not produced sufficient evidence that Mancino had final authority to fire her, so that Mancino was entitled to summary judgment. Haybarger appealed, arguing that there were genuine issues of material fact that precluded summary judgment as to whether Mancino was her employer.
Mancino “concede[d] in his brief that supervisors at public agencies are subject to liability under the FMLA.” Despite that concession, however, and although neither party presented the issue of whether public agency supervisors can be liable under the FMLA, the court, speaking through Judge Vanaskie, determined that it was necessary to rule on the issue. That question was antecedent to and possibly dispositive of Haybarger’s issue as to whether Mancino was her employer, and the court was not obligated to accept Mancino’s concession on the issue.
Judge Vanaskie observed that Congress had used in the FMLA the same definition of “employer” that is contained in the Fair Labor Standards Act, 29 U.S.C. §201 et seq. (“FLSA”). Cases under the FLSA had recognized that, for example, a management company acting as agent for building owners can be liable under that statute. Likewise, “supervisors act as agents for their employers.” Judge Vanaskie also saw no reason to distinguish between public and private employers as far as individual liability is concerned.
The panel noted, however, that there is a split within the Circuits on this issue. Judge Vanaskie canvassed the cases from other Circuits, and sided with the Fifth and Eighth Circuits (as well as with district court decisions within the Third Circuit), which had found that public agency supervisors could be liable under the FMLA. The panel found unpersuasive contrary decisions from the Sixth and Eleventh Circuits.
Judge Vanaskie then went on to hold that there was a genuine issue of material fact as to whether Mancino was Haybarger’s employer for this purpose. The key issue was the extent of supervisory control that Mancino exercised over plaintiff. The panel vacated the summary judgment against Haybarger and remanded for further proceedings.
Given the Circuit split, this issue may be ripe for Supreme Court review. We may not have heard the last of it.