United States Court of Appeals
For the First Circuit
No. 06-1633
KENNETH RUCKER,
Plaintiff, Appellant,
v.
LEE HOLDING CO., D/B/A LEE AUTO MALLS,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Lynch, Circuit Judge,
Siler,* Senior Circuit Judge,
and Lipez, Circuit Judge.
Allan K. Townsend, with whom Law Offices of Peter Thompson was
on brief, for appellant.
Barbara Eby Racine, Attorney, United States Department of
Labor, Howard M. Radzely, Solicitor of Labor, Steven J. Mandel,
Associate Solicitor, and Paul L. Frieden, Counsel for Appellate
Litigation, on brief for the Secretary of Labor, amicus curiae.
Jeffrey Neil Young and McTeague, Higbee, Case, Cohen, Whitney
& Toker, P.A. on brief for Maine AFL-CIO and Maine Employment
Lawyers Association, amici curiae.
Elizabeth J. Ernst, with whom James E. Fortin and Douglas
Denham Buccina & Ernst were on brief, for appellee.
*
Of the Sixth Circuit, sitting by designation.
Ann Elizabeth Reesman, McGuiness Norris & Williams, LLP, Robin
S. Conrad, Shane Brennan, and National Chamber Litigation Center,
Inc. on brief for Equal Employment Advisory Council and Chamber of
Commerce of the United States of America, amici curiae.
December 18, 2006
LYNCH, Circuit Judge. Eligibility for leave under the
Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq.,
depends in part on an employee having been employed by the relevant
employer "for at least 12 months." 29 U.S.C. § 2611(2)(A)(i).
This case of first impression among the courts of appeals raises
the issue of whether and under what circumstances an employee who
has had a break in service may count previous periods of employment
with the same employer toward satisfying this 12-month requirement.
Kenneth Rucker worked as a car salesman for Lee Auto
Malls (Lee) in Maine for five years. Rucker then left Lee, and
five years later rejoined Lee as a full-time employee. Seven
months after rejoining Lee, Rucker took medical leave.
Approximately two months later, Rucker's employment was terminated.
Rucker filed suit claiming that the termination was in violation of
the FMLA. The district court granted Lee's motion to dismiss,
holding that Rucker could not combine his previous period of
employment with his more recent period, and thus could not satisfy
the FMLA's 12-month employment requirement.
We hold that the FMLA itself is ambiguous as to whether
previous periods of employment count toward the 12-month
requirement, but regulations promulgated by the United States
Department of Labor (DOL), as interpreted by the DOL, establish
that previous periods of employment do count. Accordingly, we
reverse the judgment of the district court.
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I.
Because we are reviewing the district court's granting of
a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),
our review is de novo, and we recite and take as true the facts
alleged in Rucker's complaint, drawing all reasonable inferences in
his favor. See Ramirez v. Arlequin, 447 F.3d 19, 20 (1st Cir.
2006).
Rucker worked for Lee as a car salesman for approximately
five years and then left Lee for approximately five years. On June
5, 2004, Rucker began working for Lee again. On or about January
20, 2005, approximately seven and a half months after Rucker
rejoined Lee, he ruptured a disc in his back. Over the next month
and a half, he received medical treatment for his back injury, and
he took medical leave at various times because pain prevented him
from working. On March 7, 2005, Lee terminated Rucker's
employment; at that point, Rucker had missed a total of thirteen
days of work since his injury, and he was still out on medical
leave.
On January 5, 2006, Rucker filed a complaint in federal
district court in Maine, alleging that Lee had terminated him for
taking medical leave to which he was entitled, in violation of the
FMLA. The FMLA provides that "an eligible employee" is entitled to
leave for, inter alia, "a serious health condition that makes the
employee unable to perform the functions of the position of such
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employee." 29 U.S.C. § 2612(a)(1)(D). The issue before us is
whether Rucker, at the time he took medical leave, was an "eligible
employee." An "eligible employee" is one who has been employed
(i) for at least 12 months by the employer
with respect to whom leave is requested . . .;
and
(ii) for at least 1,250 hours of service with
such employer during the previous 12-month
period.
29 U.S.C. § 2611(2)(A). In his complaint, Rucker alleged that he
had worked for Lee for more than 12 months, since he had previously
been employed by Lee for five years. Rucker also alleged that he
had worked more than 1,250 hours since rejoining Lee in June 2004,
by working more than forty hours per week.
In response, Lee filed a motion to dismiss, in which it
asserted that Rucker was not an "eligible employee." Lee did not
dispute that Rucker had satisfied the hours-of-service requirement
in 29 U.S.C. § 2611(2)(A)(ii), but it argued that Rucker's prior
period of employment could not be counted toward satisfying the 12-
month requirement in 29 U.S.C. § 2611(2)(A)(i). Lee argued that
"nothing in the plain language of the statute" permitted a prior
period of employment, "remote in time," to be "tack[ed] on" to the
current period. Thus, because Rucker had taken the leave at issue
seven to nine months after rejoining Lee, under Lee's theory he had
not been employed "for at least 12 months."
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Lee also argued that a regulation addressing the 12-month
requirement, promulgated by the DOL under the FMLA, supported its
position. That regulation provides as follows:
The 12 months an employee must have been
employed by the employer need not be
consecutive months. If an employee is
maintained on the payroll for any part of a
week, including any periods of paid or unpaid
leave (sick, vacation) during which other
benefits or compensation are provided by the
employer (e.g., workers' compensation, group
health plan benefits, etc.), the week counts
as a week of employment. For purposes of
determining whether intermittent/occasional/
casual employment qualifies as "at least 12
months," 52 weeks is deemed to be equal to 12
months.
29 C.F.R. § 825.110(b). According to Lee, the second and third
sentences of the regulation modify the first sentence to give the
only circumstances under which the 12 months "need not be
consecutive months." It argued that because Rucker had had no
"continuing connection" with Lee, such as continuing benefits,
during his five years away, he could not rely on his prior
employment to satisfy the 12-month requirement.
Rucker, on the other hand, argued that "[u]nder the plain
language of the FMLA," he had worked for Lee for more than 12
months. Focusing on the first sentence of the DOL regulation, he
read the regulation to support his contention that gaps in
employment, including his own five-year gap, do not preclude
eligibility under the FMLA.
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On March 10, 2006, the district court granted Lee's
motion to dismiss, holding that Rucker's prior period of employment
did not count toward satisfying the 12-month requirement. Rucker
v. Lee Holding Co., 419 F. Supp. 2d 1, 3 (D. Me. 2006). The court
reasoned that "[t]he [DOL] regulation on its face does not give any
indication that two periods of employment, separated by a
conceivably limitless amount of time, can be grouped to make an
otherwise ineligible employee eligible." Id. at 2. Focusing on
the second and third sentences in the regulation, the court held
that the regulation provided for "brief interruptions in an
employee's attendance," but made "no allowance for an employee who
severs all ties with the employer for a period of years." Id. at
2-3.
The court also noted that there was a lack of legislative
history on point and inferred from this a lack of "legislative
intent to allow employees to accumulate time despite periods of
long separation from employment." Id. at 3. In the absence of
legislative discussion or debate, the court found that Congress did
not intend to impose on employers the "onerous requirement" of
"allowing an employee to leave an employer for years or decades,
only to return and immediately become an eligible employee under
the twelve-month requirement." Id.
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II.
We begin, as always, with the language of the statute and
ask "whether Congress has directly spoken to the precise question
at issue." Chevron U.S.A., Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837, 842 (1984). "If the intent of Congress is
clear, that is the end of the matter; for the court, as well as the
agency, must give effect to the unambiguously expressed intent of
Congress." Id. at 842-43.
Here, there is no such statutory clarity expressing
unambiguous intent. The words "has been employed . . . for at
least 12 months by the [relevant] employer" can be read either to
refer to only the most recent period of employment by the relevant
employer or to all periods of employment by that employer. Asking
how long an employee "has been employed" at a particular company is
an ambiguous question if he or she has had more than one period of
employment.
None of the canons of statutory construction invoked by
either side eliminate the statutory ambiguity.1 The district court
invoked the canon of the "dog that did not bark," reasoning that if
1
There is debate over the appropriate role of canons of
construction and legislative history in the first step of the
Chevron analysis. See Perez-Olivo v. Chavez, 394 F.3d 45, 50 n.2
(1st Cir. 2005); 1 Pierce, Administrative Law Treatise § 3.6, at
191 (4th ed. 2002). There is little reason, though, to question
the use of such tools of statutory construction when, as here, we
use them merely to confirm that the statute is ambiguous. See
Perez-Olivo, 394 F.3d at 50 n.2.
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Congress had intended to impose the "onerous requirement" of
allowing employees to count their prior employment, it would have
said so explicitly. Rucker, 419 F. Supp. 2d at 3. The rationale
for the canon, however, is that some interpretations would have
been so controversial as to inevitably have drawn comment in
Congress; in such a situation, Congress's silence can be taken to
mean that it chose the noncontroversial path. See Chisom v.
Roemer, 501 U.S. 380, 396 & n.23 (1991).
That rationale does not apply in this case. The district
court found that Rucker's interpretation of the statute would be,
if not controversial, at least "onerous" for employers.2 There is
no indication, however, that the potential burden on employers
would be so extreme as to have inevitably provoked comment in
Congress. This is a case in which "[w]e have little sense whether
any Member of Congress would have been particularly upset" by
either result. See Exxon Mobil Corp. v. Allapattah Servs., Inc.,
125 S. Ct. 2611, 2627 (2005). As a result, the absence of
congressional commentary directly on point reveals nothing, except
perhaps that Congress gave little consideration to this issue.
Rucker, for his part, invokes the canon that when
Congress uses different language in parallel provisions, it must
2
We note that the burden on employers in adopting Rucker's
interpretation is not that returning employees will be immediately
eligible for leave; such employees must still satisfy the hours-of-
service requirement.
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have intended different meanings. See, e.g., Russello v. United
States, 464 U.S. 16, 23 (1983). He points to the absence in the
12-month requirement of the language "during the previous 12-month
period," which appears in the hours-of-service requirement. From
this difference, he argues that if Congress had intended the 12-
month requirement to refer to the immediately previous 12 months,
it would have said so. See Bell v. Prefix, Inc., 422 F. Supp. 2d
810, 813 (E.D. Mich. 2006) ("[I]f Congress had intended to require
12 months of continuous employment, it could simply have done so by
using the same language in both provisions.").
The trouble with Rucker's argument is that the two
eligibility requirements are not sufficiently parallel to draw
definitive conclusions from the difference in language. See City
of Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S. 424,
435-36 (2002). The statute specifies a period over which to
measure the hours of service, but not as to the 12-month
requirement. That difference in language could mean, as Rucker
argues, that the 12-month requirement can be met over a limitless
period. But that linguistic difference is equally consistent with
the interpretation that while hours of service, so long as within
the specified period, need not be continuous, some form of
continuity is required to satisfy the 12-month requirement.
Indeed, Lee invokes a competing canon to derive the
opposite result from the same statutory language. Lee argues that
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the two statutory provisions should be read together, as a
harmonious whole. See, e.g., United Sav. Ass'n of Tex. v. Timbers
of Inwood Forest Assocs., 484 U.S. 365, 371 (1988). Under this
view, the 12 months in the 12-month requirement are the same months
as the "previous 12-month period" referred to in the hours-of-
service requirement. Thus, the requirements are read in sequence,
with the first one establishing a continuous period that includes
at least the last 12 months, and the second one counting hours of
service within that "previous 12-month period." Although both
parties argue that their reading of the statute is "plain," the
competing readings, both plausible, in fact demonstrate the
ambiguity in the statute.
Nor does resort to legislative history demonstrate clear
congressional intent on the precise issue before us. The Senate
committee report specifically states that the 12 months in the 12-
month requirement "need not have been consecutive," but the report
provides no further guidance. S. Rep. No. 103-3, at 23 (1993), as
reprinted in 1993 U.S.C.C.A.N. 3, 25. Similarly, the DOL notes
that in years prior to the enactment of the FMLA, there had been
proposed bills that would have specifically required 12 consecutive
months of employment, but none of these bills was enacted. See
Family Leave Act of 1990, H.R. 5374, 101st Cong. § 101(1)(B)
(1990); Maternity Leave Act of 1989, H.R. 3445, 101st Cong.
§ 101(1)(B) (1989). In general, it is difficult to draw strong
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conclusions from Congress's failure to enact previous bills and
from the changes in language from one bill to another. See, e.g.,
NLRB v. Catholic Bishop of Chi., 440 U.S. 490, 504-06 (1979)
(declining to infer from the rejection of a statutory amendment an
intent to enact the opposite view). More specifically, both of
these pieces of legislative history suggest that the 12 months can
be "not consecutive," but as we describe below, there remains an
issue of how broadly or narrowly to construe the words "not
consecutive." The legislative history does not resolve this issue.
We are, as a result, in a situation in which "Congress
has not directly addressed the precise question at issue," and in
which deference to a reasonable agency interpretation is
appropriate. Chevron, 467 U.S. at 843. Moreover, Congress
specifically instructed the DOL to "prescribe such regulations as
are necessary to carry out [the FMLA]," 29 U.S.C. § 2654, and the
regulations at issue here were promulgated under this statutory
authority after notice and comment, see 60 Fed. Reg. 2180, 2180
(Jan. 6, 1995). Congress clearly "expect[ed] the agency to be able
to speak with the force of law" in promulgating such regulations,
and courts must defer to the regulations' resolution of a statutory
ambiguity, so long as it is "reasonable." United States v. Mead
Corp., 533 U.S. 218, 229 (2001). Therefore, if the DOL regulation
at 29 C.F.R. § 825.110(b) clearly resolves this case, and is
reasonable, that would be the end of the matter.
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The parties, however, disagree on the proper
interpretation of the DOL regulation. Rucker focuses on the first
sentence -- stating that "[t]he 12 months . . . need not be
consecutive months" -- and reads it broadly to mean that all
periods of employment count toward the requirement. Lee instead
argues, and the district court accepted, that the first sentence is
limited by the second and third, so that non-consecutive months
count only when the employee maintains a continuing connection to
the employer, as through the continuing provision of benefits. 419
F. Supp. 2d at 2-3. Neither interpretation of the regulation is
unreasonable.
We are thus faced again with the task of interpreting
facially ambiguous language, this time contained in the DOL
regulation. When interpreting an agency regulation, courts must
give substantial deference to the agency's own interpretation of
its regulations, so long as that interpretation is consistent with
the regulation and "reflect[s] the agency's fair and considered
judgment on the matter in question." Auer v. Robbins, 519 U.S.
452, 461-62 (1997). In this case, the DOL has expressed the view
that the first sentence in its regulation, allowing for non-
consecutive months, is not limited by the sentences that follow,
discussing how to count weeks of employment. The DOL expressed
this view first in the regulatory preamble to the regulation and
then in an amicus brief filed in this case (as requested by this
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court). Its views, which are consistently held and consonant with
the language of the regulation, are entitled to controlling weight
here.
The regulatory preamble explaining the regulation at
issue makes it clear that the DOL did not intend for non-
consecutive months to count only if the employee maintained a
continuing relationship with the employer.3 The preamble mentions
three proposed "limitations on a 12-month coverage test" that the
agency explicitly considered and rejected: (1) the exclusion of
"any employment experience prior to an employee resignation or
employer-initiated termination that occurred more than two years
before the current date of reemployment"; (2) the "limiting [of]
the 12 months of service to the period immediately preceding the
commencement of leave"; and (3) the computation of the "12 months
of service as computed under bridging rules applicable to [the]
employer's pension plans." 60 Fed. Reg. at 2185. This last
rejected limitation is particularly telling in that it indicates
that the DOL explicitly rejected tying the FMLA computation to the
computation used in providing pension benefits.4 The first
3
The regulatory preamble was not brought to the attention of
the district court or of this court by the parties.
4
Bridging rules in a pension plan determine the circumstances
under which a rehired employee can receive credit for previous
periods of employment in calculating the employee's pension
benefits. See, e.g., Marolt v. Alliant Techsystems, Inc., 146 F.3d
617, 618-19 (8th Cir. 1998). The rules can cover a wide variety of
circumstances, sometimes taking into account the length of prior
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demonstrates that the DOL did not believe its regulation would
prevent employees from relying on previous periods of employment
even after a break measured in years.
Consistent with, and citing, its regulatory preamble, the
DOL maintains that a five-year gap in employment, such as the one
Rucker had, does not prevent an employee from using his earlier
employment to satisfy the 12-month requirement. Deference to this
view is appropriate here, where the views previously expressed in
the regulatory preamble are supported by the amicus brief. See
Auer, 519 U.S. at 462. Although the preamble does not explicitly
state that a five-year gap in employment would not be
disqualifying, it gives no indication that the agency would
distinguish between the two-year gap explicitly described as
permitted and a five-year gap. There is no risk here that the
agency's view is any sort of "post hoc rationalization," rather
than "the agency's fair and considered judgment," and thus there is
nothing that might undercut deference to the DOL on this point.
See id. (quoting Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212
(1988)) (internal quotation marks omitted).
Furthermore, for all the reasons we have described above,
the DOL's interpretation of its regulation is reasonable, and that
regulation, so interpreted, is a reasonable exercise of the DOL's
service, the length of the break in service, the length of the
current service, or some combination of the above. See id.
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statutory authority. Therefore, consistent with the DOL
regulation, as interpreted by the DOL, we hold that the complete
separation of an employee from his or her employer for a period of
years, here five years, does not prevent the employee from counting
earlier periods of employment toward satisfying the 12-month
requirement. As a result, Rucker pleaded sufficient facts in his
complaint to demonstrate that he was, at the time he took leave, an
"eligible employee" under the FMLA. Because the DOL has reasonably
interpreted the relevant period to include prior employment five
years earlier, we conclude that Rucker's complaint states a claim.
We go no further than deciding whether the dismissal in
this case was error. The DOL amicus brief states its view that a
break in service of over five years would be at the "outer bounds
of what is permissible,"5 apparently suggesting that we state the
same as a judge-fashioned rule. That is not our role. We agree
with the DOL that there are important policy issues involved here;
the point of the Chevron doctrine is that the DOL, in the exercise
5
The DOL reasons that one of the rationales it gave in the
regulatory preamble for permitting a gap of two years was that "the
information regarding previous employment with an employer . . .
[could] be confirmed by the employer's records." 60 Fed. Reg. at
2185. As the DOL notes, its regulations under the FMLA only
require that employers keep employment records for three years, see
29 C.F.R. § 825.500(b), with some states requiring as many as six
years, see N.J. Admin. Code § 12:56-4.4. Thus, after a gap of five
or six years, an employer might not have records of a returning
employee's previous employment, undermining the DOL's rationale for
permitting breaks in service. This rationale, though, is not
entirely consistent with other, competing rationales the agency
gave for permitting breaks in service. See 60 Fed. Reg. at 2185.
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of its statutory authority, must resolve these issues in the first
instance. For a court to fashion as a matter of law a limiting
rule not fairly contained in the existing regulatory language, but
only suggested in an amicus brief, ultimately undermines
administrative processes and places policy decisionmaking power in
the wrong institution. See Christensen v. Harris County, 529 U.S.
576, 587-88 (2000).
The judgment of the district court is reversed, and the
case is remanded for further proceedings consistent with this
opinion. Costs are awarded to Rucker.
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