UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1158
JOANN WHITING,
Plaintiff - Appellant,
v.
THE JOHNS HOPKINS HOSPITAL; JOHNS HOPKINS HEALTH SYSTEM
CORPORATION,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:09-cv-01619-WDQ)
Argued: January 26, 2011 Decided: March 14, 2011
Before TRAXLER, Chief Judge, and NIEMEYER and AGEE, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Thomas Bernard Corbin, THOMAS B. CORBIN, PA, Baltimore,
Maryland, for Appellant. Jay Robert Fries, KRUCHKO & FRIES,
Baltimore, Maryland, for Appellees. ON BRIEF: Kathleen A.
Talty, KRUCHKO & FRIES, Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joann Whiting appeals a district court order granting
judgment against her in her action against The Johns Hopkins
Hospital and The Johns Hopkins Health System Corporation
(together, “Hopkins”) for violating the Family and Medical Leave
Act (“FMLA”), see 29 U.S.C.A. §§ 2601-54 (West 2009 & Supp.
2010). Finding no error, we affirm.
I.
Whiting worked for Hopkins from January 1998 to August 2007
as a patient financial service representative. She took medical
leave pursuant to the FMLA from June 2007 to August 2007. When
approving Whiting’s leave request, Hopkins stated that her
remaining FMLA leave would be exhausted on August 8, 2007, and
that she would need a leave of absence for short-term disability
if she needed to take any more time off from work. Hopkins
initially approved such short-term disability through September
10, 2007, but it terminated Whiting on August 25, 2007,
informing her she had been replaced.
Whiting subsequently filed a discrimination charge with the
Equal Employment Opportunity Commission (“EEOC”), alleging that
Hopkins had terminated her in violation of the Americans with
Disabilities Act, see 42 U.S.C.A. §§ 12101-12213 (West 2005 &
Supp. 2010). The charge alleged that she had been discharged
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because of her disability inasmuch as she had been on leave
because of her disability. After the parties participated in
EEOC-monitored mediation, they reached two settlement
agreements: the Mediation Settlement Agreement (“MSA”) and the
Release and Settlement Agreement (“RSA”).
The MSA, which the EEOC approved, provided that Whiting
would not institute a lawsuit against Hopkins under various
federal employment discrimination laws. The RSA, which was not
approved by the EEOC, released Hopkins “from any and all causes
of action, known or unknown, arising out of or in any way
relating to [Whiting’s] employment.” J.A. 28. In this
agreement, Whiting also promised that she would “neither file
nor cause or permit to be filed on her behalf . . . any
lawsuits, claims, grievances, complaints or charges in any
forum, or any dispute arising out of her employment relationship
with [Hopkins] through December 20, 2007.” J.A. 28. In
exchange for these promises, Whiting received, among other
consideration, $4,500.00, less applicable taxes.
More than a year after executing these two releases,
Whiting filed the present action in federal district court,
alleging Hopkins violated her FMLA rights during her 2007
employment. Hopkins moved to dismiss, or in the alternative,
for summary judgment, on the basis that the settlement
agreements barred the suit. Hopkins relied on a Department of
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Labor (“DOL”) regulation stating that while “[e]mployees cannot
waive . . . their prospective rights under FMLA,” this
prohibition “does not prevent the settlement or release of FMLA
claims by employees based on past employer conduct without the
approval of the [DOL] or a court.” 29 C.F.R. § 825.220(d)
(2009). This regulation was a revision of a regulation
originally promulgated in 1995, which provided simply that
“[e]mployees cannot waive . . . their rights under the FMLA.”
29 C.F.R. § 825.220(d) (2007). We had held that under the
original version, not only could employees not waive their
prospective rights, but they also could not waive their rights
to proceed on FMLA claims for past employer conduct. See Taylor
v. Progress Energy, Inc., 493 F.3d 454, 457-63 (4th Cir. 2007).
For her part, Whiting maintained that the revised regulation did
not apply in her case since it was promulgated more than a year
after the settlement agreements had been signed. She
alternatively contended that the revised regulation was invalid
because it was manifestly contrary to the FMLA. Rejecting both
of Whiting’s arguments, the district court granted judgment to
Hopkins.
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II.
Whiting first argues that the district court erred in
applying revised 29 C.F.R. § 825.220(d) retroactively to her
case. We disagree.
Although retroactive application of a statute or regulation
is generally not favored, see Bowen v. Georgetown Univ. Hosp.,
488 U.S. 204, 208 (1988), when an amendment clarifies the
existing law rather than changing it, we give the clarification
“great weight” in considering the meaning of the original law,
Brown v. Thompson, 374 F.3d 253, 260 (4th Cir. 2004) (internal
quotation marks omitted). In determining whether an amendment
is clarifying, we consider the intent of the body that enacted
the amendment. See id. at 259.
Here, the DOL’s intent to clarify the meaning of the
original regulation is unmistakable. The preamble to the FMLA
regulations notes that, prior to the amendment, a conflict
existed between this circuit and the Fifth Circuit regarding the
proper interpretation of § 825.220(d). See 73 Fed. Reg. 67987
(Nov. 17, 2008). Compare Taylor, 493 F.3d at 457-63 (holding
that § 825.220(d) precluded both prospective and retrospective
waivers of an employee’s FMLA claims), with Faris v. Williams
WPC-I, Inc., 332 F.3d 316, 320-22 (5th Cir. 2003) (holding that
§ 825.220(d) did not prohibit post-dispute settlement of
claims). The preamble states that the DOL revised the
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regulation “in the interest of clarity” in order to “make
explicit” the DOL’s long-held view that “employees and employers
are permitted to agree voluntarily to the settlement of past
claims without having first to obtain the permission or approval
of the Department or a court.” 73 Fed. Reg. 67987 (Nov. 17,
2008); see id. (stating that the DOL “intends, as it has always
intended, for the waiver prohibition to apply only to
prospective FMLA rights”). Thus, the district court properly
concluded that the amended regulation was clarifying. *
Whiting alternatively maintains that to the extent
§ 825.220(d) allows settlement of past FMLA claims without court
or DOL approval, the regulation must be struck down for being
inconsistent with the FMLA. We disagree.
We judge the regulation’s validity by applying the two-step
analysis provided in Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984). Under that
analysis, we first consider whether “Congress has directly
spoken to the precise question at issue.” Id. at 842-43. If
Congress’s intent is clear, then our analysis ends since
*
Whiting contends that the DOL is being disingenuous when
it asserts that its revision was intended merely as a
clarification rather than a change in the law. However, the
circuit split regarding the meaning of the original regulation
lends strong support to the DOL’s representation. See Brown,
374 F.3d at 260.
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agencies “must give effect to the unambiguously expressed intent
of Congress.” Id. at 843. On the other hand, if the statute in
question is silent or ambiguous regarding the issue in dispute,
then we must determine whether the agency’s interpretation is
reasonable, and if it is, we must defer to the agency. See id.;
Mayo Found. for Med. Educ. & Research v. United States, 131 S.
Ct. 704, 714 (2011). Thus, the challenged regulation is
controlling unless it is “arbitrary, capricious, or manifestly
contrary to the statute.” Chevron, U.S.A., Inc., 467 U.S. at
844; see United States v. Mead Corp., 533 U.S. 218, 227 (2001).
For that reason, we must uphold the regulation so long as the
agency articulates a rational basis for its action. See Motor
Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S.
29, 43 (1983).
Whiting correctly concedes that the FMLA is silent
regarding the waiver of claims. We therefore proceed to the
second Chevron step, determining whether the agency’s
interpretation is permissible. We conclude that it is.
The DOL explains in the preamble to the regulations its
reasons for permitting unsupervised settlements of past FMLA
claims, reasons that closely track those offered by the Fifth
Circuit in Faris. The DOL notes that allowing such settlements
“promotes the efficient resolution of FMLA claims and recognizes
the common practice of including a release of a broad array of
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employment claims in severance agreements.” 73 Fed. Reg. 67988
(Nov. 17, 2008). The DOL also explains that allowing such
waivers is consistent with the FMLA’s language. In this regard,
the DOL contrasts the FMLA with the Fair Labor Standards Act
(“FLSA”), see 29 U.S.C.A. §§ 201-219 (West 1998 & Supp. 2010),
which contains a provision authorizing the settlement of FLSA
claims when the settlement is supervised by the DOL or a court.
See 73 Fed. Reg. 67987 (Nov. 17, 2008); 29 U.S.C.A. § 216(c).
The DOL reasons that this distinction between the FMLA and
the FLSA is justified by the difference in subject matter of the
two statutes:
The FLSA is a remedial statute setting the floor for
minimum wage and overtime pay. It was intended to
protect the most vulnerable workers, who lacked the
bargaining power to negotiate a fair wage or
reasonable work hours with their employers. . . .
Like the [Age Discrimination in Employment Act
(“ADEA”), see 29 U.S.C.A. §§ 621-634 (West 2008 &
Supp. 2010)], the FMLA is not primarily focused on
pay, and protects all segments of the workforce, from
low wage workers to highly paid professionals.
73 Fed. Reg. 67987 (Nov. 17, 2008). The DOL adds that we have
construed the ADEA as not requiring that settlements be
supervised, see O’Shea v. Commercial Credit Corp., 930 F.2d 358,
361-62 (4th Cir. 1991) (applying ordinary contract principles to
ADEA waivers).
Whiting contends that the revised regulation is
impermissible because it conflicts with the view of the FMLA we
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expressed in Taylor. In Taylor, we rejected the DOL’s argument
that the original § 825.220(d) allowed waivers of claims based
on past FMLA violations. See Taylor, 493 F.3d at 457-62. In so
doing, we concluded that the DOL’s interpretation of its
original regulation was at odds with the regulation’s language.
See id. at 457-59. We also reasoned that the DOL’s construction
would thwart the legislative policy that the FLSA was designed
to effectuate, and that it was inconsistent with the meaning the
DOL embraced at the time of promulgation. See id. at 459-62.
Whiting now argues that, in light of our conclusion in Taylor
that allowing unsupervised waivers of claims based on past FMLA
violations would thwart the legislative policy behind the FLSA,
the revised regulation’s allowing such waivers cannot be a
permissible interpretation of the statute. We disagree.
Simply put, the DOL is not bound by the observations we
made in Taylor concerning our view of the legislative policy
supporting the FMLA. After all, it is the DOL, not this court,
that is charged with the authority to promulgate FMLA
regulations. See 29 U.S.C.A. § 2654 (authorizing the Secretary
of Labor to “prescribe such regulations as are necessary to
carry out” the FMLA). Thus, regardless of whether we disagree
with the DOL’s interpretation of the FMLA, we must uphold its
regulations so long as they are reasonable. See National Cable
& Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982
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(2005) (“A court’s prior judicial construction of a statute
trumps an agency construction otherwise entitled to Chevron
deference only if the prior court decision holds that its
construction follows from the unambiguous terms of the statute
and thus leaves no room for agency discretion.”). The district
court correctly determined that the revised regulation satisfies
that standard.
III.
In sum, because we hold that the district court properly
upheld the regulation at issue and applied it in this case, we
affirm.
AFFIRMED
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