The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge
MEMORANDUM OPINION AND ORDER
Carlos Azcoitia ("Azcoitia") has been sued individually in this multicount action brought by Kathaleen Cooley ("Cooley") against Azcoitia and the Board of Education of the City of Chicago ("Board"). Azcoitia has moved to dismiss Complaint Count IV (based on a claimed violation of the Family and Medical Leave Act ("FMLA")) and Count V (charging him with tortious interference in Cooley's contract with the Board), and Cooley has filed her Response to that motion.*fn1 No reply memorandum is needed, for the two filings by the parties suffice for this Court's resolution of their dispute.
Azcoitia's potential liability under the FMLA*fn2 turns on whether he fits the statutory definition of an "employer." On that score, here are the relevant generic definitional provisions of Section 2611(4)(A):
(i) means any person engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year;
(ii) includes--(I) any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer; and (II) any successor in interest of an employer;
(iii) includes any "public agency", as defined in section 203(x) of this title; and
(iv) includes the Government Accountability Office and the Library of Congress.
There is no question that the Board is a "public agency" and hence itself an "employer." And Azcoitia, the principal of Community Links High School where Cooley was a probationary appointed counselor, fits comfortably within the literal terms of Section 2611(4)(A)(ii)(I). If then Section 2611 defines Azcoitia's position in the statutory structure, the literal statutory language as analyzed in Darby v. Bratch, 287 F.3d 673, 681 (8th Cir. 2002) calls for a "yes" answer to Azcoitia's suability under the FMLA:*fn3
It seems to us that the plain language of the statute decides this question. Employer is defined as "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). This language plainly includes persons other than the employer itself. We see no reason to distinguish employers in the public sector from those in the private sector. See Morrow, 142 F.Supp.2d at 1275 (stating that opinions which hold public officials are not subject to individual liability "do not explain why public officials should be exempted from liability while managers in the private sector are not."). 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.
On Azcoitia's behalf, his counsel points to the decision by this Court's colleague, Honorable James Zagel, in Lombardi v. Bd. of Trustees Hinsdale Sch. Dist. 86, 463 F.Supp.2d 867, 870-72 (N.D. Ill. 2006) as taking Section 2611 out of play entirely. That opinion held that the question at issue was controlled instead by Section 2618--a section (1) whose title reflects that it provides "Special rules concerning ...