Can an individual supervisor be held liable when an
employee files suit? Well, like all legal questions, it depends. The Third
Circuit Court of Appeals issued an opinion yesterday expanding the instances
when the answer to this question is yes in Haybarger v. Lawrence
County Adult Probation & Parole, No. 10-3916 (3d Cir. Jan. 31, 2012) [an enhanced version of this opinion is available to lexis.com subscribers
/ unenhanced version available from lexisONE Free Case Law].
Background
The plaintiff, Debra Haybarger, was the office manager for Lawrence County
Adult Probation and Parole, an agency of the Lawrence County of Court of Common
Pleas. Haybarger reported to Director William Mancino who, turn, reported to
Court Adminstrator Michael Occhibone. Occhibone reported to the President Judge
of the Court, Judge Dominick Motto.
Hayberger missed a lot of work due to various illnesses.
Her boss, Mancino, was "displeased" by the absences, writing on her
performance evaluations that she needed to "improve her overall health and
cut down on the days she misses due to illness." He also commented about
her health and suggested that she need to "start taking better care of
[her]self." Yikes.
Mancino put Haybarger on a six-month probation, which
required weekly progress reports and formal monthly meetings. In a disciplinary
letter, he wrote that Haybarger's "conduct, work ethic and behavior [were]
non-conducive to the Adult Probation Office." He also wrote that she
demonstrated a "lack of leadership," and "no clear understanding
of the subordinate positions" that she supervised. Gulp.
At the end of the six months, Mancino told his superiors
that Haybarger's performance had not improved and recommended that she be
terminated. They followed his recommendation.
The Suit
Haybarger sued the agency, the county, and Mancino under the ADA,
Rehabilitation Act, Pennsylvania's state discrimination statute, and the FMLA.
Initially, the District Court dismissed all of the claims except for the
Rehabilitation Act claim against the agency and the FMLA and state-law claims
against Mancino.
After limited discovery, the agency moved for summary
judgment, alleging it was immune from suit pursuant to the 11th Amendment. The
motion was denied and the Third Circuit affirmed.
On remand, the agency again moved for summary judgment,
as did Mancino. The agency's motion was denied but the parties subsequently
settled, leaving only the FMLA claim against Mancino in his individual
capacity.
The District Court held that, while the FMLA permits
individual liability against supervisors at public agencies, the plaintiff
failed to show that Mancino had "sufficient control over [her] conditions
and terms of employment" because he did not have authority to hire and
fire and, therefore, was not a supervisor.
The Holding
The Third Circuit determined, as a matter of first impression, that supervisors
at public agencies are subject to liability under the FMLA was one of first
impression. The court then went on to find that Mancino could be considered a
supervisor and, in turn, an "employer" for purposes of the FMLA.
In its first finding, the court rejected the positions of
the 6th and 11th Circuits, both of which have found that the FMLA does not
provide for individual liability for supervisors and, instead, adopting the
reasoning of the 5th Circuit. This conclusion was based on the determination
that the language of the FMLA and its implementing regulations are more like
the FLSA, which permits individual liability, rather than Title VII, which does
not.
The court then turned to the facts that could support a
finding that Mancino could be considered to be an "employer" for the
purposes of the FMLA. In sum, the court explained, "an individual is
subject to FMLA liability when he or she exercises 'supervisory authority over
the complaining employee and was responsible in whole or part for the alleged
violation' while acting in the employer's interest."
The Impact on Supervisors
There are several lessons to be learned from this case--some more obvious than
others. First, do not comment (or care) about the reasons for an employee's
absence. If an employee is absent and is permitted to be absent--because of
your leave policy, because of the FMLA, or otherwise--then the reason(s) for
the absence is irrelevant. Do not care and do not comment about why an employee
is taking leave when she is permitted to do so.
Second, learn how to write a better performance
evaluation. Ambiguous comments like, "employee demonstrates poor
leadership skills" do not help the employee improve because they do not
identify the underlying conduct that you want her to change. Give an example of
how she fails to be a good leader. If you cannot articulate a specific example
of what you consider to be poor performance, it is not poor performance under
the law.
Third, to avoid being held individually liable under the
law, supervisors are best advised to let HR do what they do best--including
administering FMLA leave. Simply turn it over to HR and then get the pros
involved when writing performance evaluations and considering disciplinary
action for any employee who has been approved for FMLA leave. This stuff isn't
easy--get help from the pros.
Read more Labor and Employment Law insights
from Margaret (Molly) DiBianca in the Delaware
Employment Law Blog. Ms. DiBianca is an attorney with
Young, Conaway, Stargatt & Taylor, LLP.
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