United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 18, 2006
______________________
No. 04-30230 Charles R. Fulbruge III
______________________ Clerk
MELISSA C. MINARD,
Plaintiff-Appellant,
versus
ITC DELTACOM COMMUNICATIONS, INC.,
Defendant-Appellee.
____________________________________________________
Appeal from the United States District Court
for the Middle District of Louisiana
____________________________________________________
Before KING, Chief Judge, and JOLLY and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
As the Supreme Court said in its recent pertinent decision in
Arbaugh v. Y & H Corp., 126 S.Ct. 1235, (2006): “This case concerns
the distinction between two sometimes confused or conflated
concepts: federal-court ‘subject-matter’ jurisdiction over a
controversy; and the essential ingredients of a federal claim for
relief.”1 Specifically, we are here called upon to decide whether
the Family Medical Leave Act (“the FMLA” or “the Act”) definition
of an “eligible employee” (as not including those “at a worksite”
having “less than 50 employees if the total number of
employees...within 75 miles of that worksite is less than 50”) is
1
Id. at 1238.
-1-
a limit on the federal courts’ subject matter jurisdiction or
instead is an essential ingredient of an FLMA claim for relief.
The Supreme Court’s holding in Arbaugh that Title VII’s limitation
of the definition of “employer” to include only those having
“fifteen or more employees,” was an element of a Title VII claim
for relief, and thus non-jurisdictional, compels the same answer
here: that is, the employee-numerosity requirement is an element of
the claim, not a limit upon the federal-court’s subject-matter
jurisdiction. Consequently, we reverse the district court’s
dismissal of the plaintiff’s FMLA claim for lack of subject matter
jurisdiction and remand the case to the district court for further
proceedings upon whether the employer should be equitably estopped
to pursue a “non-eligible employee” coverage defense, viz., whether
the employer’s erroneous representation to the employee that she
was an “eligible employee” under the FMLA was made with reason to
believe that she would rely upon it and whether she reasonably
relied on it to her detriment.
The Family and Medical Leave Act of 1993 entitles eligible
employees to take up to 12 work weeks of unpaid leave annually for
any of several reasons, including a serious health condition that
makes the employee unable to perform the functions of the position
of such employee.2 Subject to exceptions not applicable to this
case, any eligible employee who takes leave under § 2612 shall be
2
29 U.S.C. § 2612(a)(1)(d).
-2-
entitled on return from such leave to be restored to the position
of employment held when the leave commenced, or to be restored to
an equivalent position with equivalent employment benefits, pay,
and other terms and conditions of employment.3
The Act defines “eligible employee” as “an employee who has
been employed (i) for at least 12 months by the employer... and;
(ii) for at least 1,250 hours of service with such employer during
the previous 12-month period,” excluding any employee who is
employed at a worksite at which, or within 75 miles of which, the
employer employs less than 50 employees.4 An “employer” is defined
as any person “engaged in commerce or in any industry or activity
affecting commerce who employs 50 or more employees for each
working day during each of 20 or more calendar workweeks in the
current or preceding calendar year.”5
The enforcement section of the Act provides that any employer
who interferes with or discriminates against the exercise of an
employee’s rights shall be liable to any eligible employee affected
for damages as specified by the Act and for such equitable relief
as may be appropriate, including employment, reinstatement, and
promotion.6 This section also expressly creates a right of action
3
Id. § 2614.
4
29 U.S.C. § 2611(2).
5
Id. § 2611(4).
6
Id. § 2617(a)(1).
-3-
and provides for federal and state court subject-matter
jurisdiction:
An action to recover the damages or equitable relief
prescribed ... may be maintained against any employer
(including a public agency) in any Federal or State court
of competent jurisdiction by any one or more employees
for and in behalf of (A) the employees; or (B) the
employees and other employees similarly situated.7
Background
The plaintiff-appellant, Melissa Minard, was employed by the
defendant-appellee, ITC Deltacom Communications, at its Baton Rouge
Field Sales Office. In May 2002, Ms. Minard requested leave
pursuant to the Family Medical Leave Act to undergo surgery to
treat a serious medial condition. IRC granted Ms. Minard’s request
for FMLA leave in a written memorandum entitled “Request for Family
or Medical Leave,” which specifically stated that she was an
“eligible employee” under the Family and Medical Leave Act and that
she had “a right under the FMLA for up to 12 weeks of unpaid leave
in a 12-month period.”8 The memorandum also informed Ms. Minard
that her requested leave would be counted against her annual FMLA
entitlement.9 Ms. Minard took the granted leave, but on the day
she was scheduled to return to work, ITC terminated her employment
7
29 U.S.C. § 2617(a)(2).
8
R. at 166
9
Id.
-4-
rather than restoring her to her former or an equivalent position
as required by the Act. After its issuance of the memorandum, and
after Ms. Minard had taken leave and undergone surgery, ITC
discovered that Ms. Minard was not an eligible employee under the
Act at the pertinent time because when she requested leave IRC
employed less than 50 employees at or within 75 miles of the
worksite at which she was employed. Ms. Minard filed suit under
the FMLA on February 26, 2003. ITC answered that Minard was not an
“eligible employee” under the FMLA. Ms Minard amended her complaint
to contend, in the alternative, that ITC is equitably estopped to
deny that she was an eligible employee under the FMLA when she
requested leave, because she relied to her detriment upon IRC’s
representation that she was at that time an eligible employee under
the Act and therefore entitled to reinstatement upon returning from
her medical leave.
ITC moved for summary judgment, on the ground that the
district court lacked subject matter jurisdiction because on the
date Ms Minard requested leave it employed less than 50 employees
within 75 miles of the worksite where she was employed. Ms. Minard
opposed the motion with evidence attempting to show that the
prescribed workforce exceeded 50 employees at that time and,
alternatively, that she had relied to her detriment upon ITC’s
representation that she was an eligible employee under the FMLA and
entitled to the requested leave and subsequent reinstatement.
-5-
The district court granted ITC’s motion for summary judgment.
Without giving reasons the court’s terse written ruling stated:
The Court finds that the defendant is not an employer
within the meaning of the Family and Medical Leave Act of
1993 and that the Act does not apply under the facts of
this case. Likewise, the Court finds that the doctrine
of equitable estoppel does not apply.10
Although the order states that the district court found that ITC
was not an “employer” under the Act, we conclude that the court
meant that Ms. Minard was not an “eligible employee” under the act.
The parties’ arguments and summary judgment evidence related to
whether the court lacked subject matter jurisdiction because ITC
employed less than 50 employees within the prescribed worksite
radius. Thus, we interpret the district court’s ruling as
implicitly determining that it lacked subject matter jurisdiction
because Ms. Minard was not an eligible employee due to there being
less than 50 employees within a 75 mile radius of her worksite on
the day she requested leave.
Standard of Review
We review de novo a district court’s grant of summary
judgment, applying the same standard applicable to the district
court’s ruling on the motion.11 Summary judgment is appropriate “if
the pleadings, depositions, answers to interrogatories, and
10
2 R. 237.
11
Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 507
(5th Cir. 2003).
-6-
admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.”12
Jurisdiction
The Supreme Court, in Arbaugh v. Y & H Corporation, dba The
Moonlight Café, 126 S.Ct. 1235 (2006) recently clarified the
distinction between the requirements for federal subject matter
jurisdiction and the elements of a federal claim for relief. Arbaugh
involved an action under Title VII of the Civil Rights Act of 1964,
which makes it unlawful “for an employer...to discriminate,” inter
alia, on the basis of sex.13 The Act’s jurisdictional provision
empowers federal courts to adjudicate civil actions “brought under”
Title VII.14 In a provision defining 13 terms used in Title VII,15
Congress limited the definition of "employer" to include only those
having "fifteen or more employees.”16 The question presented was
whether the numerical qualification contained in Title VII's
definition of "employer" affected federal-court subject-matter
12
FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett,
477 U.S. 317 (1986).
13
Id. at 1238 (quoting 42 U.S.C. § 2000e-2(a)(1)).
14
42 U.S.C. § 2000e-5(f)(3).
15
42 U.S.C. § 2000e.
16
Id. § 2000e(b).
-7-
jurisdiction or, instead, delineated a substantive ingredient of a
Title VII claim for relief.
The case was tried to a jury, which returned a verdict for the
plaintiff on her sexual harassment claim in the total amount of
$40,000. After final judgment was entered on the verdict, the
employer for the first time challenged the court’s subject matter
jurisdiction on the ground that it had fewer than 15 employees and
therefore was not subject to suit under Title VII. Although
recognizing that it was “unfair and a waste of judicial resources,”
the trial court granted the motion to dismiss because it believed
that the 15-or-more employee requirement was jurisdictional.
The Supreme Court rejected that categorization and held that
“the numerical threshold does not circumscribe federal-court
subject-matter jurisdiction.”17 Instead, the Court explained, “the
employee-numerosity requirement relates to the substantive adequacy
of Arbaugh's Title VII claim, and therefore could not be raised
defensively late in the lawsuit, i.e., after Y & H had failed to
assert the objection prior to the close of trial on the merits.”18
After analyzing Title VII, the basic statutory grants of
federal-court subject-matter jurisdiction, and its principal
decisions dealing with the subject-matter jurisdiction/ingredient-
of-claim-for-relief dichotomy, the Supreme Court summed up its
reasons and recognized a bright-line rule, as follows:
17
Arbaugh, 126 S.Ct. at 1238.
18
Id. at 1239.
-8-
[N]either § 1331, nor Title VII's jurisdictional
provision, 42 U.S.C. § 2000e-5(f)(3) (authorizing
jurisdiction over actions "brought under" Title VII),
specifies any threshold ingredient akin to 28 U.S.C. §
1332's monetary floor. Instead, the 15-employee threshold
appears in a separate provision that "does not speak in
jurisdictional terms or refer in any way to the
jurisdiction of the district courts." Zipes v. Trans
World Airlines, Inc., 455 U.S. 385, 394, 102 S.Ct. 1127,
71 L.Ed.2d 234 (1982). Given the "unfair[ness]" and
"waste of judicial resources," App. to Pet. for Cert. 47,
entailed in tying the employee-numerosity requirement to
subject-matter jurisdiction, we think it the sounder
course to refrain from constricting § 1331 or Title VII's
jurisdictional provision, 42 U.S.C. § 2000e-5(f)(3), and
to leave the ball in Congress' court. If the Legislature
clearly states that a threshold limitation on a statute's
scope shall count as jurisdictional, then courts and
litigants will be duly instructed and will not be left to
wrestle with the issue. See Da Silva, 229 F.3d, at 361
("Whether a disputed matter concerns jurisdiction or the
merits (or occasionally both) is sometimes a close
question."). But when Congress does not rank a statutory
limitation on coverage as jurisdictional, courts should
treat the restriction as nonjurisdictional in character.19
Applying that “readily administrable bright line” to the case,
the Court held that the threshold number of employees for
application of Title VII is an “element of a plaintiff's claim for
relief, not a jurisdictional issue.”20
In light of the Supreme Court’s decision in Arbaugh, we
conclude that the definition section of the FMLA,21 which defines 13
terms used in the statute, including the term “eligible employee,”
is a substantive ingredient of a plaintiff’s claim for relief, not
19
Id. at 1245 (footnote omitted).
20
Id. at 1245.
21
29 U.S.C. § 2611
-9-
a jurisdictional limitation. Accordingly, § 2611(2)(B)(ii) - which
excludes from the term “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 that employer within 75 miles of that worksite is less
than 50” - does not circumscribe federal-court subject-matter
jurisdiction. This 50-employee threshold appears in the definitions
section, separate from the jurisdictional section, and does not
speak in jurisdictional terms or refer in any way to the
jurisdiction of the district courts.22 Given the unfairness and the
waste of judicial resources entailed in tying the employee-
numerosity requirement to subject-matter jurisdiction, we have been
instructed to refrain from our own constrictions upon jurisdictional
provisions resembling Title VII’s, such as the FMLA’s §
2617(2)B(ii), and “to leave the ball in Congress’s court.”23 “When
Congress does not rank a statutory limitation on coverage as
jurisdictional [as it chose not to do in § 2617(2)B(ii)], courts
should treat the restriction as nonjurisdictional in character.”24
Applying the Supreme Court’s Arbaugh bright line rule here, we
conclude that the threshold number of employees for application of
22
See Arbaugh, 126 S.Ct. at 1245 (stating “Instead, the
15-employee threshold appears in a separate provision that ‘does
not speak in jurisdictional terms or refer in any way to the
jurisdiction of the district courts.’”) (quoting Zipes v. Trans
World Airlines, Inc., 455 U.S. 385, 394,(1982)).
23
Arbaugh, 126 S.Ct. at 1245.
24
Id.
-10-
the FMLA is an element of a plaintiff’s claim for relief, not a
jurisdictional limitation.
Since Arbaugh was decided on February 22, 2006, two other
Circuits have recognized and applied its bright line to conclude
that limiting or qualifying language in a federal statute other than
Title VII, separate from its jurisdictional section, that does not
speak in jurisdictional terms or refer to the jurisdiction of the
federal courts, places no constriction upon the statute’s clearly
designated jurisdictional provision.25 Subsequent to Arbaugh, a
third Circuit applied Arbaugh and held that Title VII’s employee-
numerosity requirement is an element of the plaintiff’s claim,
rather than a jurisdictional limitation.26
For these reasons, we conclude that Arbaugh has clearly
rejected the conflicting view of the Courts of Appeals relied upon
by ITC that employee-numerosity requirements in the FMLA and other
statutes are jurisdictional rather than simply an element of a
plaintiff’s claim for relief.27 Moreover, in Arbaugh itself, the
25
See Partington v. American Intern’l Specialty Lines Ins.
Co., 2006 WL 802500 (4th Cir. 2006)(applying Arbaugh and holding
failure of a plaintiff to qualify as a “person purchasing” under
the Securities Act of 1933 was not a jurisdictional limitation);
Fernandez v. Centerplate/NBSE. Inc., 2006 WL 736208 (D.C. Cir.
2006)(applying Arbaugh and holding employee’s failure to prove
element of Fair Labor Standards Act claim does not require
dismissal for lack of subject-matter jurisdiction).
26
Faulkner v. Woods Transportation, Inc., 2006 WL 869709
(11th Cir. 2006),
27
Viz., Douglas v. E.G. Baldwin & Associates, Inc., 150
F.3d 604 (6th Cir. 1998)(FMLA’s definition of “employer” based on
number of employees is jurisdictional); Wascura v. Carver, 169
F.3d 683, 685 (11th Cir. 1999)(FMLA’s employer definition is
-11-
Court abrogated decisions by the Fifth and Sixth Circuits treating
the Title VII employee-numerosity requirements as jurisdictional,28
while approving of appeals courts decisions reaching the opposite
conclusion with respect to the Americans with Disabilities Act as
well as Title VII.29
Equitable Estoppel
Because the district court granted ITC’s motion for summary
judgment on the erroneous ground that the court lacked subject-
matter jurisdiction, its assumption that “[l]ikewise,...the
doctrine of equitable estoppel does not apply” must be rejected as
having been based on the same legal error. Therefore, because we
have subject-matter jurisdiction, we must address the equitable
jurisdictional and does not include public officials); Dolese v.
Office Depot, Inc. 231 F3d 202, 203 (5th Cir. 2000)(affirmed
dismissal of FMLA claim because employee had not been employed
"for at least 12 months by the employer with respect to whom
leave is requested" and thus was not an "eligible employee" for
purposes of the FMLA).) N.B., it is not clear in Dolese whether
the court considered the 12 months’ employment requirement to
limit jurisdiction or the claim for relief or both.
28
Discussing both Arbaugh v. Y&H Corp., 380 F.3d 219, 223-
225 (5th Cir. 2004)(Title VII's employee-numerosity requirement
is jurisdictional), and Armbruster v. Quinn, 711 F.2d 1332, 1335
(6th Cir. 1983) (same).
29
See Arbaugh, 126 S.Ct. at 1241-2 (approving, inter alia,
Da Silva v. Kinsho International Corp., 229 F.3d 358, 361-366 (2d
Cir. 2000) (Title VII's employee-numerosity requirement is not
jurisdictional); Nesbit v. Gears Unlimited, Inc., 347 F.3d 72,
76-83 (3d Cir. 2003) (same); EEOC v. St. Francis Xavier Parochial
School, 117 F.3d 621, 623-624 (D.C. Cir. 1997) (Americans with
Disabilities Act's employee-numerosity requirement, 42 U.S.C. §
12111(5)(A), resembling Title VII's requirement, is not
jurisdictional)).
-12-
estoppel question, which Ms. Minard put at issue in her amended
pleadings and opposition to ITC’s motion for summary judgment.
After considering the arguments of the parties in light of the
record, we conclude that whether ITC should be equitably estopped
to assert a “non-eligible employee” coverage defense against Ms.
Minard depends upon the resolution of contested issues of material
fact, requiring that we remand the case to the district court for
further proceedings.
The Supreme Court has recognized that, under federal law,
“[e]stoppel is an equitable doctrine invoked to avoid injustice in
particular cases.”30 In Heckler, the Court quoted and adopted the
elements of estoppel set forth in § 894(1) of the RESTATEMENT (SECOND)
OF TORTS, as follows:
If one person makes a definite misrepresentation of fact
to another person having reason to believe that the other
will rely upon it and the other in reasonable reliance
upon it does an act ... the first person is not
entitled...
(b) to regain property or its value that the other
acquired by the act, if the other in reliance upon the
misrepresentation and before discovery of the truth has
so changed his position that it would be unjust to
deprive him of that which he thus acquired." Restatement
(Second) of Torts § 894(1) (1979).31
The Court explained that the party claiming the estoppel must
have relied on its adversary’s conduct “‘in such a manner as to
30
Heckler v. Community Health Servs. of Crawford County,
Inc., 467 U.S. 51, 59 (1984).
31
Citing also RESTATEMENT (SECOND) OF AGENCY § 8B (1958)
-13-
change his position for the worse.’”32 And, according to the Court,
that reliance must have been reasonable in that the party claiming
the estoppel did not know nor should it have known that its
adversary’s conduct was misleading.33
The RESTATEMENT, while requiring a "definite misrepresentation,"
does not require any intent to deceive by the party to be
estopped.34 In the Comment section, the RESTATEMENT makes clear that
estoppel is appropriate even where "the one making the
representation believes that his statement is true,” and, moreover,
"it is immaterial whether the person making the representation
exercised due care in making the statement.”35 In adopting the
Restatement’s estoppel principles, the Supreme Court evidently
32
Heckler,467 U.S. at 59, n.9 (quoting 3 J. POMEROY, EQUITY
JURISPRUDENCE § 805, p. 192 (S. Symons ed., 1941); see also 3 EQUITY
JURISPRUDENCE § 812.
33
Heckler at 59, n.10 (citing Wilber National Bank v.
United States, 294 U.S. 120, 124-125 (1935)) (also quoting 3
EQUITY JURISPRUDENCE § 810 at 219 for the proposition that
The truth concerning these material facts must be
unknown to the other party claiming the benefit of the
estoppel, not only at the time of the conduct which
amounts to a representation or concealment, but also at
the time when that conduct is acted upon by him. If, at
the time when he acted, such party had knowledge of the
truth, or had the means by which with reasonable
diligence he could acquire the knowledge so that it
would be negligence on his part to remain ignorant by
not using those means, he cannot claim to have been
misled by relying upon the representation or
concealment. (Footnote omitted).
34
RESTATEMENT (SECOND) OF TORTS at § 894(1).
35
RESTATEMENT (SECOND) OF TORTS, § 894(1), cmt. b.
-14-
intended that they should be read and applied in light of the
Restatement’s explanatory provisions.
Accordingly, an employer who without intent to deceive makes
a definite but erroneous representation to his employee that she is
an “eligible employee” and entitled to leave under FMLA, and has
reason to believe that the employee will rely upon it, may be
estopped to assert a defense of non-coverage, if the employee
reasonably relies on that representation and takes action thereon
to her detriment.36
Applying the Restatement principles of equitable estoppel
adopted as federal law by the Supreme Court in Heckler, we conclude
that ITC unintentionally made a definite misrepresentation to Ms.
Minard that she was an “eligible employee” under FMLA at the time
she requested leave; that she reasonably relied upon that
misrepresentation in taking leave and undergoing surgery for the
36
See Kosakow v. New Rochelle Radiology Assocs., 274 F.3d
706, 724-25 (2d Cir. 2001) (affirming the district court's
decision to estop an employer from asserting an affirmative
defense challenging an employee's FMLA eligibility when the
employer's unintentional misleading behavior caused the employee
to justifiably and detrimentally rely on the FMLA leave); see
also Woodford v. Community Action of Greene County, Inc., 268
F.3d 51, 57 (2d Cir. 2001) (authorizing equitable estoppel where
an employer initially provided notice of eligibility for leave
and later seeks to challenge it); Dormeyer v. Comerica
Bank-Illinois, 223 F.3d 579, 582 (7th Cir. 2000) (recognizing, in
dicta, a district court's ability to equitably estop employers
from asserting an affirmative defense contesting an employee's
entitlement to FMLA leave in situations where the employer's
words or conduct has misled the employee into relying on the
leave); see also, Duty v. Norton-Alcoa Proppants, 293 F.3d 481
(8th Cir. 2002)(affirming a district court’s application of
equitable estoppel in an FMLA case and collecting authorities).
-15-
protection of her health. ITC strongly challenges, however, whether
Ms. Minard so relied to her detriment, contending that she would
have been forced to undergo her surgery at that time regardless of
whether she had been informed that she was entitled to FMLA leave
or whether ITC had granted it. Ms. Minard, on the other hand, argues
that she can demonstrate that there were other medical alternatives
available to her that would have enabled her to be treated safely
without undergoing surgery at that particular time; and that she
would have followed such an alternate course if ITC had correctly
informed her that she was not then an “eligible employee” under the
Act. Thus, there is a genuine dispute between the parties as to
material issues of fact, requiring that we reverse the district
court’s summary judgment, and remand the case to the district court
for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
-16-