Karl Kammerer sued the University of Kansas, Brian Anderson, and Susan Scholz in the United States District Court for the District of Kansas, bringing claims under the Family Medical Leave Act (FMLA) against Anderson and Scholz, and a claim under the Rehabilitation Act against the University. The plaintiff moved to certify the court’s order dismissing the FMLA claims for interlocutory appeal.
Factual Overview
The court previously granted defendants’ motion to dismiss the FMLA claims against Anderson and Scholz, finding that as public employees of the University, they were not subject to liability under the FMLA because public employees are not “employers” under the Act. This ruling resulted in Anderson and Scholz being dismissed from the suit. The Rehabilitation Act claim against the University remained pending.
Legal Analysis
Requirements for Interlocutory Appeal: The court explained that certification for interlocutory appeal requires three elements: (1) the order involves a controlling question of law, (2) substantial ground for difference of opinion exists on the question of law, and (3) immediate appeal may materially advance ultimate termination of litigation. All three criteria must be met.
Controlling Question of Law: The court found that whether public employees are employers under the FMLA constituted a controlling question of law, as the parties agreed that liability depended on this issue.
Substantial Ground for Difference Opinion: The court acknowledged a substantial ground for difference of opinion existed, noting a circuit split on the issue. The Sixth and Eleventh Circuits held public officials are not FMLA employers, while the Third, Fifth, and Eighth Circuits held they are. The court also noted splits among district courts within the Tenth Circuit and within the District of Kansas itself.
Advancement of Litigation: The court found that immediate appeal would not materially advance the termination of litigation. An appeal would not eliminate the need for trial but could add an additional claim. The court also determined that discovery would not be substantially easier or less costly because the FMLA and Rehabilitation Act claims involved similar underlying facts and overlapping damages.
The court denied the plaintiff’s motion to certify the order dismissing the FMLA claims for interlocutory appeal.
Schrag on Law 