United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 25, 2005
Charles R. Fulbruge III
Clerk
No. 04-60409
LARRY G. BELLUM,
Plaintiff-Appellant,
versus
PCE CONSTRUCTORS INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Mississippi
Before GARWOOD, JONES and STEWART, Circuit Judges.
GARWOOD, Circuit Judge:
Plaintiff-appellant Larry G. Bellum appeals the decision of
the district court granting summary judgment to defendant-appellee
PCE Constructors, Inc. (PCE) on Bellum’s federal claim under the
Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., and
on his pendent Mississippi law claims for both the intentional and
negligent infliction of emotional distress. We affirm.
Facts and Proceedings Below
PCE is in the construction industry and does work primarily
on a project-by-project basis.1 Its principal place of business
is Baton Rouge, Louisiana, though it takes on projects across
several southern states. During the time giving rise to the
events in this case, PCE was building a facility for Fabricated
Pipe, Inc (FPI) in Fernwood, Mississippi. PCE was also involved
in helping FPI establish its pipe fabrication business.
PCE hired Bellum, who had worked for PCE on a contract-basis
before, on December 12, 1999 to manage a particular project at
the FPI site in Fernwood. PCE had a staff of 14 at its
headquarters in Baton Rouge and 41 at the FPI site. Bellum
testified in his deposition that he drove each day between his
home in Baton Rouge and Fernwood, a round-trip of about 190
miles. The distance between PCE’s headquarters and FPI is
between 66.5 and 69.5 linear miles but 88.5 miles over public
1
PCE argued in the district court that it is not a proper
party under Rule 17 of the Federal Rules of Civil Procedure
because it is not the successor to Constructors, Inc., which
actually employed Bellum during the relevant period. The
district court noted in its summary judgment order that it did
not find it necessary to reach this issue in resolving the case
in PCE’s favor. In its brief before us, PCE noted that it was
not going to address the proper party argument but asks us not to
construe this as a waiver of the objection. Like the district
court, we too are able to resolve the questions before us in
PCE’s favor, so the proper party issue is moot. Accordingly, for
the purposes of appeal, we assume, arguendo, that PCE was
Bellum’s employer, and hence refer to it as such.
2
roadways.2
On December 24, 2000, Bellum told his supervisor, Charles
Gibson, that he was taking leave from work to have open-heart
surgery. Bellum’s last day was December 26, 2000. Bellum
contends that while he was on leave for his heart surgery, Gibson
repeatedly told both him and his wife that a job was waiting for
him at the FPI site. Following his recovery from heart surgery,
Bellum visited the FPI site on March 1, 2001 to investigate
returning to work. Gibson apparently told him there was no
longer any work for him because Bellum’s project was completed in
his absence. The two remained in touch over the next two weeks
discussing work possibilities, but Bellum was formally terminated
on March 16, 2001 without ever having returned to work.
On March 3, 2003, Bellum filed the instant suit in the
district court seeking relief under the FMLA and for state law
claims of emotional distress. On April 5, 2004, the district
court granted summary judgment to PCE on the ground that Bellum
was not an “eligible employee” under the FMLA. The district
2
In his memorandum in opposition to summary judgment, Bellum
submitted several exhibits measuring the linear distance by
various scientific methods. PCE stated that it calculated the
distance over public roads using the popular website
www.mapquest.com. In his brief on appeal, Bellum argues that the
driving distance between PCE’s headquarters and the FPI worksite
is greater than 75 miles but less than 80. We presume that
Bellum is measuring the shortest possible distance over public
roads whereas PCE is measuring the distance using the interstate
highways. In any case, Bellum does not dispute that the shortest
possible distance over the public roadways exceeds 75 miles.
3
court also concluded that, absent a duty under the FMLA to rehire
Bellum, PCE was free not to rehire him because Mississippi is an
employment at-will state. It follows from this, the district
court reasoned, that Bellum could not succeed on his claim that
he suffered actionable emotional distress when PCE chose not to
rehire him. It is from this disposition that Bellum now appeals.
Discussion
A. Standard of Review
We review a grant of summary judgment under the same
standard applied by the district court. Faris v. Williams WPC-I,
Inc., 332 F.3d 316, 319 (5th Cir. 2003). We examine questions of
law de novo and construe disputed material facts in favor of the
non-movant. Id.
B. The FMLA
The FMLA provides, inter alia, an “eligible employee” with
“a total of 12 workweeks of leave during any 12-month period . .
. [b]ecause of a serious health condition[.]” 29 U.S.C. §
2612(a)(1)(D). The parties do not dispute that Bellum’s heart
problems qualify as a “serious health condition.” What they do
dispute, however, is whether Bellum is an “eligible employee.”
PCE maintains that Bellum falls within one of two enumerated
exceptions to the definition of eligible employee:
“any employee of an employer who is employed at a
worksite at which such employer employs less than 50
employees if the total number of employees employed by
4
the employer within 75 miles of that worksite is less
than 50.”
29 U.S.C. § 2611(2)(B)(ii). This exception applies, PCE
contends, because its headquarters, as measured over public
roads, is more than seventy-five miles from the FPI worksite.3
Bellum counters that the exception does not apply because the
linear distance, i.e. “as the crow flies,” between FPI and the
Baton Rouge headquarters is less than 70 miles.
The district court resolved this controversy by consulting
29 C.F.R. § 825.111(b), which states that the “75-mile distance
is measured by surface miles, using surface transportation over
public streets, roads, highways and waterways, by the shortest
route from the facility where the eligible employee needing leave
is employed.” The regulation goes on to provide that the 75-mile
distance should only be measured as the crow flies when there is
no “available surface transportation between worksites.” Id.4
The district court granted summary judgment to PCE because, under
the method of measurement set forth in the regulation, Bellum was
not an FMLA-eligible employee. Because the FMLA speaks simply of
miles, not “surface miles,” Bellum urges us to strike down 29
3
The parties do not dispute that PCE employed fewer than 50
employees at the FPI worksite but more than 50 at the FPI site
and the Baton Rouge headquarters combined.
4
29 U.S.C. § 2654 provides that “The Secretary of Labor
shall prescribe such regulations as are necessary to carry out
subchapter I [29 U.S.C. §§ 2611-2619] of this chapter and this
subchapter [29 U.S.C. §§ 2651-2654] . . .”.
5
C.F.R. § 825.111(b) as manifestly contrary to the plain language
of 29 U.S.C. § 2611(2)(B)(ii).
We review federal regulations of the sort at issue here
under the familiar Chevron doctrine. If a statute is
unambiguous, then the statute prevails over an inconsistent
regulation. Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 104 S. Ct. 2778, 2781 (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.”) (citations omitted). To
ascertain whether the statute has spoken unambiguously to the
question at issue, we avail ourselves of the traditional means of
statutory interpretation, which include, see, e.g., Gen. Dynamics
Land Sys., Inc. v. Cline, 124 S. Ct. 1236, 1248-1249 (2004), the
text itself, its history, and its purpose. While the 75-mile
distance set forth in the statute is not inherently ambiguous, we
disagree with Bellum that the failure of Congress to stipulate a
method of measuring that distance implies that it should be
measured as the crow flies. To measure in linear terms as Bellum
suggests would regularly conduce to absurd results and no canon
of statutory construction requires us to honor plain language
when to do so would frustrate the unmistakable purpose of the
law. Hartford Underwriters Ins. Co. v. Union Planters Bank, N.
A., 120 S. Ct. 1942, 1947 (2000) (stating that “when the
6
statute's language is plain, the sole function of the courts--at
least where the disposition required by the text is not
absurd--is to enforce it according to its terms.") (internal
quotation marks omitted) (quoting United States v. Ron Pair
Enterprises, Inc., 109 S. Ct. 1026, 1030 (1989) (in turn quoting
Caminetti v. United States, 37 S. Ct. 194 (1917)); Harbert v.
Healthcare Services Group, Inc., 391 F.3d 1140, 1150-1151 (10th
Cir. 2004) (stating, as one of its reasons for striking down an
FLMA regulation, that no deference is owed to an interpretation
of the statute that makes arbitrary distinctions).
The error in Bellum’s approach may be illustrated as
follows. Suppose that Company A had its headquarters along the
south rim of the Grand Canyon and a branch office on the other
side only 25 miles away as the crow flies. Suppose further,
quite plausibly, that the shortest distance between the two by
public roads is 120 miles. Now, imagine that Company B has its
headquarters next to a straight-line interstate highway and a
branch office 80 miles away also right along the interstate.
Under Bellum’s reading of the statute, Company A would be bound
by the FMLA but Company B would not be. Given that the purpose
of the exception at 29 U.S.C. § 2611(2)(B)(ii) is to relieve the
burden of FMLA compliance on companies with widely dispersed
operations, it would make no sense to construe the statute in a
way that subjects Company A but exempts Company B. See Moreau v.
7
Air France, 356 F.3d 942, 945 (9th Cir. 2004) (concluding that
the purpose of the exception was “to accommodate employer
concerns about ‘the difficulties that an employer might have in
reassigning workers to geographically separate facilities.’”)
(quoting H.R. Rep. No. 102-135, pt. 1, at 37 (1991))); 29 U.S.C.
2601(b)(1) & (3) (“It is the purpose of this Act to balance the
demands of the workplace with the needs of families...in a manner
that accommodates the legitimate interests of employers.”); see
also Harbert, 391 F.3d at 1150 (making use of a similar
hypothetical to illustrate an arbitrary and capricious
interpretation of the FMLA). We conclude, therefore, that the
decision of Congress not to define a method of measuring the 75-
mile distance constitutes an implicit statutory gap the Secretary
of Labor is authorized to fill by 29 U.S.C. § 2654 (see note 4,
supra).5
When Congress has left an implicit gap such as this one, the
question before us is simply “whether the [regulation] is based
on a permissible construction of the statute.” Chevron, 104 S.
Ct. at 2782. In answering this question, we consider only
whether the regulation is arbitrary, capricious, or manifestly
contrary to the FMLA. Id. We may not substitute our own
5
In concluding that Congress was silent on the appropriate
method of measuring the 75-mile distance, we also reject Bellum’s
argument that the Secretary of Labor was without authority to
issue 29 C.F.R. § 825.111(b).
8
preference for a reasonable alternative devised by the Secretary
of Labor. Id. “The Secretary’s judgment that a particular
regulation fits within” the statutory framework of the FMLA “must
be given considerable weight.” Ragsdale v. Wolverine World Wide,
Inc., 122 S. Ct. 1155, 1160 (2002). This is the essence of what
is known as Chevron deference.
We hold that 29 C.F.R. § 825.111(b) is entitled to
deference.6 In our view, the regulation recognizes that the FMLA
6
Bellum’s reliance on Ragsdale is misplaced. In Ragsdale,
the Supreme Court struck down an FMLA regulation on the ground
that it had no basis in the language of the FMLA and, moreover,
was fundamentally inconsistent with the remedial nature of the
statute. See, e.g., the following from Ragsdale:
“Our deference to the Secretary, however, has important
limits: A regulation cannot stand if it is ‘“arbitrary,
capricious, or manifestly contrary to the statute.”’
United States v. O’Hagan, supra, at 673, 117 S.Ct. 2199
(quoting Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct.
2778, 81 L.Ed.2d 694 (1984)).” (122 S.Ct. at 1160).
. . .
“We need not decide today whether this conclusion [of
the regulation] accords with the text and structure of
the FMLA, or whether Congress has instead ‘spoken to
the precise question’ of notice, Chevron, supra, at
842, 104 S.Ct. 2778, and so foreclosed the notice
regulations. Even assuming the additional notice
requirement is valid, the categorical penalty the
Secretary imposes for its breach is contrary to the
Act’s remedial design.” (122 S.Ct. at 1161).
In this case, on the other hand, Congress was silent as to
the method of measuring the 75-mile distance and the regulation
promulgated by the Secretary of Labor advances, rather than
impairs, the FMLA’s remedial purpose. Nor is the regulation
contrary to the design of the statute.
9
is concerned with the practical issue of how an employer will be
able to staff its business when an employee takes leave. Given
that the overwhelming majority of workers in this country use
surface transportation to get to work, the regulation implements
the statutory scheme in a way that is consistent with the intent
of Congress and germane to the challenges employers face in
complying with the FMLA. The Secretary’s approach has the
additional advantage of avoiding the sort of absurd result we
hypothesized might prevail under Bellum’s reading of the
statute.7
We also reject Bellum’s contention that his method of linear
measurement has been widely adopted by the federal courts.
Bellum bases this assertion on the fact that numerous cases have
used the word “radius,” which by definition is a straight line
from the center of a circle to anywhere along its edge, when
discussing the 75-mile distance described by 29 U.S.C. §
2611(2)(B)(ii). None of the twenty cases Bellum cites, however,
concerned the question at issue here and it is evident that the
courts were using the term “radius” in a colloquial, rather than
technical, sense.
7
Several weeks after oral argument and in response to a
question put to counsel by the panel about how distances are
measured for the purposes of service of process, Bellum brought
to our attention Sprow v. Hartford Ins. Co., 594 F.2d 412 (5th
Cir. 1979). In Sprow, we concluded that measuring “as the crow
flies” is the proper method for measuring the 100-mile distance
for service of process under what was then FED. R. CIV. P. 4(f)
and is now FED. R. CIV. P. 4(k)(1)(B). 594 F.2d at 417-418. In
coming to this conclusion, we specifically rejected the use of
road miles because that standard lacks uniformity and simplicity.
Id. Even assuming arguendo that Rule 4(k)(1)(B) and 29 U.S.C. §
2611(2)(B)(ii) are similar enough to warrant comparison, it is
not necessary for us to address whether the considerations
discussed in Sprow would lead to a better rule than the one
devised by the Secretary of Labor because, in a Chevron case like
this, the only question for us is whether the Secretary’s
10
C. Emotional Distress
Bellum also appeals the district court’s grant of summary
judgment on his pendent state claims for the intentional and
negligent infliction of emotional distress.
Bellum’s claim under Mississippi common law for the
intentional infliction of emotional distress is subject to the
one-year statute of limitations set forth at Miss. Code Ann. §
15-1-35 (Rev. 1995). King v. Otasco, Inc., 861 F.2d 438, 442
(5th Cir. 1988) (making an Erie “guess” that the intentional
infliction of emotional distress falls within the one-year
statute of limitations for intentional acts; this “guess” adopted
with respect to false arrest by City of Mound Bayou v. Johnson,
562 So. 2d 1212, 1218 (Miss. 1990)); Hervey v. Metlife Gen. Ins.
Corp. Agency Sys. of Miss., Inc., 154 F. Supp. 2d 909, 914-915
(S.D. Miss. 2001) (surveying relevant federal and state precedent
in concluding that the one-year period still applies to the
intentional infliction of emotional distress). His cause of
action accrued no later than March 16, 2001 when he was
terminated as part of a reduction in force at FPI. Bellum did
not file his complaint until March 3, 2003, nearly two years
later. His claim, therefore, is barred.
Relying on McCorkle v. McCorkle, 811 So.2d 258, 263-264
construction of the statute is permissible, not the best. Having
found that it is permissible, our inquiry is at an end.
11
(Miss. App. 2001), Bellum contends that the running of the
limitations period was tolled under Mississippi’s continuing tort
doctrine because the effects of his termination persist into the
present. This is without merit and reflects a fundamental
misunderstanding of the continuing tort doctrine. Under
Mississippi law, acts that take place outside the one-year
statute of limitations are actionable if, and only if, they are
directly connected to an ongoing pattern of tortious conduct and
at least one tortious act occurred within the one-year
limitations period. Id. at 264. The continuing tort doctrine
does not apply when a plaintiff like Bellum simply alleges that
“harm reverberates from one wrongful act or omission.” Smith v.
Franklin Custodian Funds, Inc., 726 So.2d 144, 149 (Miss. 1998).
We similarly find Bellum’s claim for the negligent
infliction of emotional distress to be without merit.
Employment in Mississippi is at-will. Levens v. Campbell,
733 So.2d 753, 760 (Miss. 1999). The only exceptions to this
general rule are for breach of contract or unlawful intentional
acts such as terminating someone on account of his or her race.
Id. (stating that “absent an employment contract expressly
providing to the contrary, an employee may be discharged at the
employer's will for good reason, bad reason, or no reason at all,
excepting reasons only declared legally impermissible.”). Bellum
in effect is asking this panel to extend Mississippi common law
12
by developing an exception to the at-will rule based on mere
negligence. Furthermore, in every case in which the Mississippi
Supreme Court has permitted a plaintiff to recover for the
negligent infliction of emotional distress, the defendant has
committed some independently wrongful act or breached some other
duty imposed by law or by contract. For example, in Universal
Life Ins. Co. v. Veasley, 610 So.2d 290, 295 (Miss. 1992), the
policyholder prevailed on her breach of contract claim but was
not entitled to punitive damages because the insurer did not act
intentionally in outright bad-faith. The court nevertheless
allowed her to recover for her emotional damages on the theory
that it was simply unfair, though not independently tortious, for
the insurer to breach the contract but not be held liable for all
of the reasonably foreseeable extra-contractual consequences of
its conduct such as emotional harms. See Southwest Miss. Reg'l
Med. Ctr. v. Lawrence, 684 So.2d 1257, 1269 (Miss. 1996)
(allowing emotional damages in a successful breach of contract
suit); see also First Nat’l Bank v. Langley, 314 So.2d 324, 329
(Miss. 1975) (permitting recovery for emotional distress without
a physical impact for negligent breach of duty owed by bank to
agent of its customer to receive and properly credit customer’s
funds placed by agent in bank’s night depository and to exercise
reasonable care in examining depository for missing deposit).
Breach of some other duty imposed by law or contract, in other
13
words, has always been shown where the Mississippi Supreme Court
has allowed recovery for the mere negligent infliction of
emotional distress. Bellum, however, has not established that
PCE breached a contract, or breached any duty imposed on it by
law, or unlawfully discriminated against Bellum under the FMLA.8
This court will not use its diversity jurisdiction to
“expand state law beyond its presently existing boundaries.”
Rubinstein v. Collins, 20 F.3d 160, 172 (5th Cir. 1994). That is
solely the prerogative of the courts of Mississippi. Jackson v.
Johns-Manville Sales Corp., 781 F.2d 394, 397 (5th Cir.) (en
banc), cert. denied, 478 U.S. 1022 (1986).
Bellum, therefore, is not entitled to recover under the
facts of this case for the negligent infliction of emotional
distress.
Conclusion
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
8
Indeed, Bellum has not shown that PCE treated him in any
manner that can fairly be described as truly extreme and
outrageous. On the contrary, the record indicates that Gibson,
Bellum’s former boss, stayed in touch with Bellum for a few weeks
after Bellum was physically able to return to work but there was
no work for him at PCE.
14