2012-00136900-CU-PO

Eric Oback vs. California Deparment of Consumer Affairs

Nature of Proceeding:    Hearing on Demurrer and Motion to Strike

Filed By:   Hightower, Bart E.

Defendant California Department of Consumer Affair’s (“Department”) demurrer and
motion to strike the sixth cause of action in Plaintiff’s second amended complaint
(“SAC”) is ruled upon as follows.

Defendants are the Department as well as individual defendants, James Maynard,
Randy Powers, Tonya Blood, and Frances Worden (“Individual Defendants”). The
Individual Defendants demur to and move to strike the sixth cause of action for
Violation of Family Medical Leave Act for Interference with the Exercise of FMLA
Rights (29 U.S.C.A. section 2615 et. seq) on the grounds that: (1) they are not
“employers” under the FMLA and are not subject to individual liability, and (2) pursuant
to the 11th Amendment to the US Constitution, they enjoy qualified immunity for their
actions.

Individual Liability

Both parties agree that the Ninth Circuit has not yet addressed the issue of whether
public employees may be held individually liable under the FMLA.  The circuit courts
are split on the issue.  (Bozani v. Shinseki (E.D. Cal. 2012) 895 F.Supp.2d 1003,
1007.)  The Third, Fifth and Eighth Circuits have held that public employees may be
held personally liable while the Sixth and Eleventh Circuit held the opposite.  (Id.)  The
district courts are also split, with a majority in favor of imposing individual liability.  (Id.)

The Court agrees with Plaintiff that the FMLA may impose individual liability upon a
public employee.  First, the language in the FMLA includes both employers and “any
person who acts, directly or indirectly, in the interest of an employer to any of the
employees of such employer.” 29 U.S.C. §2611(4)(A)(ii)(I).  Moreover, the Federal
Labor Standards Act (“FLSA”) provides that an employer includes “any person acting
directly or indirectly in the interest of an employer in relation to an employee and
includes a public agency.”  The similar language “suggests that Congress intended
that the statutes to be treated as the same. . .  .that the FMLA similarly permits
individual liability against supervisors at public agencies.”  (Bozani, supra, at 1010; see
also Mercer v. Borden (C.D. Cal. 1998) 11 F.Supp.2d 1190.)

However, “whether the person functions as an employer depends on the totality of the
circumstances rather than on the ‘technical concepts of the employment
relationship.'”  (Haybarger v. Lawrence County Adult Prob. & Parole (3d. Cir. 2012)
667 F.3d 408, 418 [internal citation omitted].)  The court examines “whether the
individual supervisor carried out the functions of an employer with respect to the
employee.”  (Id.)

The demurrer is OVERRULED.  Whether the Individual Defendants were Plaintiff’s
“employer” is a question of fact, outside the scope of a demurrer.  Moreover, the Court
is not convinced that more specificity is required (i.e. power to hire and fire,
supervision and control, etc.) as the cases upon which the Individual Defendants rely             do not deal with challenges to the pleadings but rather factual determinations, such as
summary judgment.

11th Amendment Immunity

The demurrer is OVERRULED.  Plaintiff has alleged that the Individual Defendants
“knowingly violated the FMLA…”  (SAC paras. 96-98.)  At this stage of the
proceedings, these allegations are sufficient.

Answer shall be served and filed by no later than January 13, 2014.

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or further notice is required.