The opinion of the court was delivered by: Judge James B. Zagel
MEMORANDUM OPINION AND ORDER
Defendant Board of Education of Hinsdale High School District No. 86 ("Board") hired Plaintiff Anthony Lombardi ("Lombardi") in May, 2003. Lombardi worked at Hinsdale Central High school as a non-tenured probationary employee between 2003 and 2006. He served as a physical education teacher, head varsity football coach, and assistant track coach. In March, 2006, the Board voted to non-renew Lombardi for the 2006-07 school year. His last day of employment was June 9, 2006.
Plaintiff filed this action on July 10, 2006. He claims violations of the Family and Medical Leave Act (FMLA), breach of contract, and tortious interference with contractual relations. He brings his claims against the Board; Nicholas Wahl, the superintendent of District 86; James Ferguson, the principal of Hinsdale Central High School; and Thomas Schweer, athletic director at Hinsdale Central High School (collectively "Defendants").
On September 11, 2006, Defendants filed a motion to dismiss. Lombardi responded on October 10, 2006, by filing his First Amended Complaint. In so doing, he clarified some points in his FMLA and breach of contract claims (Counts I and II, respectively) and changed the theory of his Count III tort claim. He now alleges tortious interference with contractual relations against the three individual defendants.
A motion to dismiss tests the sufficiency of a claim, not the merits of the case. Autry v. Northwest Premium Servs., Inc., 144 F.3d 1037, 1039 (7th Cir. 1998). I should grant Defendants' motion only if Lombardi cannot prove any set of facts in support of his claims that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In reviewing Defendants' motion, I must construe all allegations in the claims in the light most favorable to Lombardi and accept all well-pleaded facts and allegations as true. See Bontkowski v. First Nat'l Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993). I may only grant Defendants' motion if "no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).
B. Plaintiff's FMLA Claim
Lombardi -- in his first amended complaint -- made a number of clarifications to his FMLA claim. Defendants responded by narrowing the focus of their motion to dismiss this claim. They now argue only that Count I of Lombardi's complaint should be dismissed as against the individual defendants -- Wahl, Ferguson and Schweer.
Defendants' argument focuses on a provision of the FMLA that creates special rules for employees of local educational agencies. 29 U.S.C. § 2618 (1994). Defendants contend that this section creates a much narrower definition of "employer" for FMLA suits brought by employees of local educational agencies than for FMLA suits generally. They assert further that this narrow definition does not permit suits against individual employer defendants.
Very few federal courts have ever even cited to this code section, and I could find no record of a court deciding this discrete question: whether § 2618 bars FMLA suits against individuals in the primary and secondary school context. For the reasons that follow, I find that § 2618 does restrict Lombardi to bringing his FMLA claim against the Board only, and therefore I am dismissing Count I as against the individual defendants.
As a starting point, neither the United States Supreme Court nor the Seventh Circuit has addressed whether -- generally speaking -- an individual may be held liable as an employer in FMLA actions. However, my colleagues in this district have consistently held that individuals can be held liable under the Act. See Smith v. Univ. of Chicago Hospitals, No. 02 C 0221, 2003 WL 22757754, at *6 (N.D. Ill. 2003) (collecting cases). The judges in this district have so held because the FMLA "tracks word for word the definition [of employer] used in the Fair Labor Standards Act," 29 U.S.C. § 203(d), and individuals can be subject to liability as employers thereunder. Freemon v. Foley, 911 F.Supp. 326, 330-31 (N.D. Ill. 1995). Were this a garden-variety FMLA case, I would be inclined to agree with these colleagues and hold that an individual is potentially liable as an employer under the FMLA. As this case involves a local educational institution, however, additional analysis is required.
At the next level of granularity, there is a debate amongst various courts regarding whether individuals at public agencies can potentially be liable as an employer under the FMLA. The Eighth Circuit holds that an FMLA claim may be brought against an individual as an employer, even at public agencies. See Darby v. Bratch, 287 F.3d 673, 681 (8th Cir. 2002) ("We see no reason to distinguish employers in the public sector from those in the private sector. . . . If an individual meets the definition of employer as defined by the FMLA, then that person should be subject to liability in his individual capacity."). The Sixth Circuit, conversely, ...