Bellum v. PCE Constructors, Inc.

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