IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ARIEL MILLER, )

 )

Plaintiff, )

 )

v. ) CIVIL ACTION 15-0286-WS-B

 )

CENTENNIAL BANK, et al., )

 )

Defendants. )

ORDER

This matter is before the Court on the motion of defendant Diane Lacy to 

dismiss the FMLA claim against her. (Doc. 6). The plaintiff filed a response, 

(Doc. 9), Lacy declined the opportunity to reply, (Doc. 7), and the motion is ripe 

for resolution.

Lacy notes that only “employers” can be liable under the FLMA, and she 

argues that the complaint does not “plead sufficient facts showing that [she] could 

be characterized as Plaintiff’s employer for FMLA purposes.” (Doc. 6 at 1). Lacy 

provides less than 11⁄2 pages (30 lines) of argument in support of her position, (id. 

at 2-3), half of which is devoted to reciting the familiar Twombly standard. Lacy 

then cites two lower court decisions from outside the Eleventh Circuit as examples 

of complaints that failed adequately to assert a basis for supervisor liability. 

Finally, Lacy asserts that the complaint’s only relevant allegation is that she was 

Centennial Bank’s “agent”; without actually addressing the allegations of the 

complaint, Lacy denies that the pleading “allege[s] any facts that would show that 

Lacy had the authority to hire or fire employees, determine Plaintiff’s pay scale, 

control operations of the bank, or control the bank’s payroll.”

In her response, the plaintiff discusses Eleventh Circuit cases addressing 

the standard for individual liability under the FLSA (which, the parties agree, 

employs the same definition of “employer” and which, the parties agree, provides 

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the best guidance as to the meaning of the term in the FMLA context).1 Under 

that authority, individual liability requires that “a supervisor must either be 

involved in the day-to-day operation or have some direct responsibility for the 

supervision of the employee.” Lamonica v. Safe Hurricane Shutters, Inc., 711 

F.3d 1299, 1313 (11th Cir. 2013) (internal quotes omitted). Moreover, “while 

control [over day-to-day operations or over the plaintiff] need not be continuous, it 

must be both substantial and related to the company’s FL[M]A obligations.” Id. at 

1314. This is because “our primary concern is the supervisor’s role in causing the 

FL[M]A violation.” Id.

The plaintiff points out several allegations of the complaint indicating that, 

as branch manager, Lacy was substantially involved in day-to-day operations and 

had substantial control over the plaintiff and that, in this capacity and through this 

involvement and control, Lacy played a prominent role in causing the alleged 

FMLA violations. Lacy’s failure to file a detailed principal brief, and her failure 

to file a reply brief at all, leaves the plaintiff’s facially reasonable defense of her 

pleading unchallenged.2

For the reasons set forth above, Lacy’s motion to dismiss is denied. 

DONE and ORDERED this 17th day of September, 2015. 

s/ WILLIAM H. STEELE 

CHIEF UNITED STATES DISTRICT JUDGE

 1 “The fact that Congress, in drafting the FMLA, chose to make the definition of 

‘employer’ materially identical to that in the FLSA means that decisions interpreting the 

FLSA offer the best guidance for construing the term ‘employer’ as it is used in the 

FMLA.” Wascura v. Carver, 169 F.3d 683, 686 (11th Cir. 1999). Wascura is the only 

Eleventh Circuit authority cited by Lacy on the “employer” question.

2 Lacy correctly asserts that the complaint contains no allegations suggesting she 

had authority to determine the plaintiff’s pay scale or control the bank’s payroll, but such 

matters are irrelevant to an FMLA (as opposed to an FLSA) inquiry. Her assertion that 

the complaint contains no allegations suggesting she had authority over the branch’s dayto-day operations and/or authority to fire the plaintiff (or at least recommend her 

termination), is simply incorrect.

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