In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3539
M ICHELLE L. B AILEY,
Plaintiff-Appellant,
v.
P REGIS INNOVATIVE P ACKAGING, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:08-CV-332—Philip P. Simon, Chief Judge.
S UBMITTED M ARCH 17, 2010—D ECIDED A PRIL 2, 2010
Before P OSNER, M ANION, and H AMILTON, Circuit Judges.
P OSNER, Circuit Judge. The district court granted sum-
mary judgment for the defendant in this suit under the
Family and Medical Leave Act, 29 U.S.C. §§ 2601 et seq.
The appeal raises several issues, but only two warrant
discussion; the others have no possible merit.
The defendant fired the plaintiff because she had re-
ceived more than 8 “points” for absenteeism during a
12-month period—a firing offense under the defendant’s
2 No. 09-3539
“no-fault attendance policy.” She would not have re-
ceived so many points had she not taken two absences
in July 2006. She contends that these absences were
leaves to which the Act entitled her, and if this is correct
the defendant could not lawfully penalize her for
taking them. 29 U.S.C. § 2615(a)(1); 29 C.F.R. § 825.220(c);
Phillips v. Quebecor World RAI, Inc., 450 F.3d 308, 310
(7th Cir. 2006); Novak v. MetroHealth Medical Center, 503
F.3d 572, 577-78 (6th Cir. 2007). But to be entitled to take
leaves protected by the Act in July 2006, she had to have
“been employed for at least 1,250 hours of service with
[her] employer during the previous 12-month period.” 29
U.S.C. § 2611(2)(A)(ii). And she hadn’t been—unless, as
she argues, she is entitled to toll the 12-month period for
the 56 days during that period in which she was on FMLA
leave—that is, unless she is entitled to add, to the time
she worked during those 12 months, the time she worked
during the 56 days that preceded the 12 months.
Tolling ordinarily adds time to the end of a limitations
period. Suppose a two-year statute of limitations began to
run on January 1, 2008, but was tolled for six months
beginning on July 1, 2008, because the defendant had
agreed to waive any defense based on the statute of
limitations for that period while the parties tried to work
out a settlement. Then the statute of limitations would
expire not on December 31, 2009, but on June 30, 2010.
The problem for the plaintiff in this case is that the 1,250-
hour qualifying minimum must be satisfied before she
can take any further FMLA leave. So she wants to be
credited with hours worked for a period, before the
12 months, that is equal to the FMLA leave she took
No. 09-3539 3
during the 12 months that preceded the leave that caused
her to be fired.
There is no basis for such a contortion of the statute—no
hint in the statute or elsewhere that Congress envisaged
and approved such a circumvention of the requirement
that an applicant for FMLA leave have worked 1,250 hours
in the preceding 12 months. We can’t find a case directly
on point, but are supported in our conclusion by the
refusal of courts including our own to interpret the statu-
tory term “service” in an expansive fashion that would
dilute the 1,250-hour requirement. See Pirant v. U.S.
Postal Service, 542 F.3d 202, 208-09 (7th Cir. 2008) (em-
ployee could not count time spent putting on work uni-
form as “hours of service” for FMLA eligibility); Mutchler
v. Dunlap Memorial Hospital, 485 F.3d 854, 858 (6th Cir.
2007) (employee could not count bonus “hours” awarded
for working weekends toward the 1,250 minimum
because they weren’t “hours actually worked”); Plumley v.
Southern Container, Inc., 303 F.3d 364, 372 (1st Cir. 2002)
(“hours of service” include “only those hours actually
worked in the service and at the gain of the employer” and
so did not include hours in which the plaintiff did
no work but for which he was awarded backpay in an
arbitration proceeding against the employer).
The plaintiff’s second argument is that the defendant
retaliated against her for taking FMLA leave. Such retalia-
tion violates the Act. See 29 U.S.C. § 2615(a)(1) (“it shall be
unlawful for any employer to interfere with, restrain, or
deny the exercise of or the attempt to exercise any right
provided under this subchapter”); 29 C.F.R. § 825.220(c)
4 No. 09-3539
(“the Act’s prohibition against ‘interference’ prohibits an
employer from discriminating or retaliating against an
employee or prospective employee for having exercised
or attempted to exercise FMLA rights”). A “point,” which
as we know jeopardizes a worker’s employment with
the defendant, is removed 12 months after it is imposed.
But as we also know, the defendant does not count time
on leave, including FMLA leave, toward the 12 months.
Therefore it takes someone like the plaintiff, who has
taken FMLA leave, longer to wipe the slate clean than it
would take an otherwise similar employee who had not
taken FMLA leave in the preceding 12 months.
The Act provides that taking FMLA leave “shall not
result in the loss of any employment benefit accrued prior
to the date on which the leave commenced.” 29 U.S.C.
§ 2614(a)(2). An initial question is whether a removal of
absenteeism points is an “employment benefit.” If it isn’t,
the plaintiff wasn’t deprived of anything that the Family
and Medical Leave Act protects.
It is a “benefit” in approximately the sense in which
granting parole is a benefit to the parolee; it reduces a
penalty. A more positive light in which to view the defen-
dant’s 12-month erasure policy, however, is that every
time an employee completes 12 months of work he
accrues a right to have incurred up to 8 absenteeism
points without losing his job.
But is this right an employment benefit within the
meaning of the Act? The Act defines “employment bene-
fits” as “all benefits provided or made available to em-
ployees by an employer, including group life insurance,
No. 09-3539 5
health insurance, disability insurance, sick leave, annual
leave, educational benefits, and pensions.” 29 U.S.C.
§ 2611(5). As the list of “employment benefits” is not
exhaustive, the fact that it does not mention removal of
absenteeism points has no significance. And the word
“all” suggests that “employment benefits” should prob-
ably be construed broadly.
The Department of Labor, which administers the Family
and Medical Leave Act, has issued an opinion letter
(FMLA-100, 1999 WL 1002428 (Jan. 12, 1999)) saying that
removal of absenteeism points is indeed an employment
benefit within the meaning of the Act. Opinion letters
issued by government agencies, including the Department
of Labor, are “entitled to respect”—but only to the extent
that they have “power to persuade.” Christensen v. Harris
County, 529 U.S. 576, 587 (2000), quoting Skidmore v. Swift
& Co., 324 U.S. 134, 140 (1944); see also CenTra, Inc. v.
Central States, Southeast & Southwest Areas Pension Fund,
578 F.3d 592, 601 (7th Cir. 2009); Catskill Development, L.L.C.
v. Park Place Entertainment Corp., 547 F.3d 115, 127 (2d Cir.
2008). There is no reasoning in this opinion letter. It just
states a conclusion, which unless self-evident has no
power to persuade. Arriaga v. Florida Pacific Farms, L.L.C.,
305 F.3d 1228, 1238 (11th Cir. 2002), rejected the posi-
tion asserted in an opinion letter of the Department of
Labor because the letter “[did] not offer any reasoning” for
its conclusion. And Kilgore v. Outback Steakhouse of
Florida, Inc., 160 F.3d 294, 303 (6th Cir. 1998), did the same
thing with Department of Labor opinion letters that
“provide[d] no reasoning or statutory analysis to sup-
port their conclusion.” See also Catskill Development,
6 No. 09-3539
L.L.C. v. Park Place Entertainment Corp., supra, 547 F.3d
at 127.
We therefore give no weight to the letter; nevertheless
we think the better interpretation of the statute is that
wiping a point off the absenteeism slate is indeed an
employment benefit. Although Congress’s purpose in
making 12 months the minimum period for requiring
the employer to grant FMLA leave was to exclude tempo-
rary and seasonal workers, see S. Rep. No. 3, 103d Cong.,
1st Sess. 23 (1993), the defendant presumably chose 12
months as the length of time for absenteeism points to
remain on the employee’s record because the employee’s
working continuously for that length of time would be
an indication that despite an occasional unauthorized
absence he was a dependable worker after all. He would
have earned forgiveness for the absence that had caused
him to be given a point.
For the employer to deduct, from the 12 months, leave
taken—for whatever reason—is consistent with, and
indeed a natural corollary of, no-fault attendance policies,
which are common, see, e.g., “Attendance Policies: Absen-
teeism Without Breaking the Law,” Business Management
Daily, Aug. 1, 2008, www.businessmanagementdaily.com/
articles/9100/1/Attendance-polices-Control-absenteeism-
without-breaking-the-law/Page (visited March 31, 2010),
and (depending on the precise terms) are consistent with
the Family and Medical Leave Act. The Act is intended for
the protection of workers who despite taking FMLA leave
are committed to working for their employer. The intent
is thus not simply to help families but “to balance the
No. 09-3539 7
demands of the workplace with the needs of families.” 29
U.S.C. § 2601(b)(1). No-fault attendance policies (called “no
fault” because they do not require or permit the em-
ployee to justify an absence by presenting a note from
his doctor or equivalent evidence of justification—a
process considered demeaning by many employees, as
well as being administratively burdensome to the em-
ployer and easily abused) are consistent with this aim.
But while the removal of absenteeism points is, we
conclude, an employment benefit, this cannot help the
plaintiff. We must attend to the language of section
2614(a)(2): taking FMLA leave “shall not result in the
loss of any employment benefit accrued prior to the date
on which the leave commenced.” The clause that we have
italicized implies that a benefit that accrues after leave
commenced is not protected. The implication is made
explicit by section 2614(a)(3)(A), which says that the
Act does not entitle an employee to “the accrual of
any . . . employment benefits during any period of leave.”
If removal of absenteeism points (commonly though
misleadingly called “attendance points”) is an employ-
ment benefit, it is one that accrues 12 months after an
absence. Until then the employee has no right to have
an absenteeism point removed. An employee who
worked for 11 months and was on leave the other month
(say he began work on January 1 and was still employed
on December 31, but was on leave during the month of
July) cannot add the month that he was on leave in order
to obtain a benefit available to an employee who worked
for 12 months rather than 11, because the employee
is not entitled to “the accrual of any . . . employment
benefits during any period of leave.”
8 No. 09-3539
An employee must not be penalized by being deprived,
just because he is on family leave, of a benefit that
he has earned (i.e., that has accrued to him) by working.
But by the same token he cannot, when on family leave,
accrue benefits that accrue only by working. The statute
is explicit that an employee does not accrue seniority
by being on family leave, 29 U.S.C. § 2614(a)(3)(A), because
seniority is a reward for working; and similarly we con-
clude that an employee does not accrue absenteeism
forgiveness when on leave, because that too is a reward
for working. The defendant’s no-fault attendance policy
is a lawful method of determining whether an employee
has, despite absences, a sufficiently strong commitment
to working for his employer to wipe an absence off his
record. The plaintiff failed to demonstrate that commit-
ment.
A FFIRMED.
4-2-10