Minard v. ITC Deltacom Communications, 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 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.

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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).
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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).
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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.

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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.

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 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).
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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).
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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.
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 [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
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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.
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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
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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)).
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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)
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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.
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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).

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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.

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