United States Court of Appeals
For the First Circuit
No. 01-2747
JOHN PLUMLEY,
Plaintiff, Appellant,
v.
SOUTHERN CONTAINER, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
[Hon. David M. Cohen, U.S. Magistrate Judge]
Before
Selya, Circuit Judge,
Gibson* and Greenberg,** Senior Circuit Judges.
Gerald F. Petruccelli, with whom Petruccelli & Martin, LLP,
Francis M. Jackson, and Jackson & MacNichol were on brief, for
appellant.
Perry S. Heidecker, with whom Joseph M. Labuda, Milman &
Heidecker, James R. Erwin, and Pierce Atwood were on brief, for
appellee.
September 13, 2002
_______________
*Of the Eighth Circuit, sitting by designation.
**Of the Third Circuit, sitting by designation.
SELYA, Circuit Judge. This case poses a question of
first impression: should compensation awarded for work-hours lost
during an employee's successful pursuit of a grievance count as
"hours of service" within the meaning of the Family and Medical
Leave Act (FMLA), 29 U.S.C. §§ 2601-2654 (1994)? The district
court answered this question in the negative and, accordingly,
entered judgment in favor of the employer.1 We affirm.
I. BACKGROUND
We present the facts in the light most favorable to the
party opposing summary judgment (here, the plaintiff), consistent
with record support. See McIntosh v. Antonino, 71 F.3d 29, 32 (1st
Cir. 1995).
In February of 1996, defendant-appellee Southern
Container, Inc. (SCI) hired plaintiff-appellant John Plumley to
work at its plant in Westbrook, Maine. Throughout his tenure,
Plumley was part of a bargaining unit represented by Local 669 of
the United Paperworkers International Union (the Union). At all
times relevant hereto, SCI and the Union were parties to a
collective bargaining agreement (the CBA) that included a standard
grievance procedure. Under it, an employee who believed that he
had been treated unfairly by SCI could file a grievance and expect
1
In this instance, the district judge accepted and adopted the
detailed report and recommendation of a magistrate judge. For
simplicity's sake, we do not distinguish between the two judicial
officers. Rather, we take an institutional view and refer to the
determinations below as those of the district court.
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a grievance committee elected by the Union to represent his
interests. Any settlement between SCI and the grievance committee
would bind the complaining employee. If SCI and the grievance
committee could not resolve the dispute amicably, either side could
take the matter to arbitration. The CBA stipulated that the
parties (and the complaining employee) would be bound by the
arbitrator's decision.
Plumley invoked the grievance procedure no fewer than
seven times during his tour of duty with SCI. One such occasion
followed his discharge on March 21, 1998. The ensuing dispute
reached the arbitration stage. Finding that the sanction imposed
was overly harsh, the arbitrator vacated the dismissal in favor of
a two-week suspension without pay. Ancillary to this
determination, the arbitrator ordered SCI to compensate Plumley in
full for the wages and benefits that he had lost during the period
when his grievance was being processed (adjusted for the two-week
suspension). Plumley received these emoluments — wages and
benefits for a span of approximately six months — despite the fact
that he had not worked for SCI during that interval.
The plant manager, Leo Parenteau, learned of the arbitral
award on October 5, 1998. The next day, he sent Plumley a
registered letter directing him to return to work on October 12.
Plumley received the letter on October 7, but found the timing
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inconvenient.2 He requested a brief delay, but Parenteau remained
resolute.
On October 12, Plumley reported to work at SCI, but
departed before completing his shift. The next day, he left a
message stating that he would be either late or absent because he
needed to see his ill father. Plumley did not report to work at
all, but, rather, visited his father at a hospital in Boston. When
Plumley arrived at the plant on October 14, Parenteau cashiered him
for abandoning his duties. Plumley attempted to grieve the firing
but the Union elected not to submit his grievance to arbitration.
So goes a rote story in modern labor-management relations
– facts as routine as they are simple. The atypicality of this
case is not apparent until certain elements are viewed through the
prism of the FMLA, a federal statute that "entitle[s eligible]
employees to take reasonable leave for medical reasons . . .
[including] the care of a child, spouse, or parent who has a
serious health condition . . . ." 29 U.S.C. § 2601(b)(2). The
statute allows such employees to take up to twelve weeks of unpaid
leave for specified reasons during any twelve-month period without
jeopardizing their employment security. Id. § 2612. It defines an
eligible employee as one "who has been employed (i) for at least 12
2
After his discharge, Plumley had started working full-time at
a nightclub in which he held an ownership interest. He complained
to Parenteau that the October 12 recall gave him only two business
days to arrange coverage at the club. Parenteau was unmoved by
Plumley's plight.
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months by the employer with respect to whom leave is requested . .
.; and (ii) for at least 1,250 hours of service with such employer
during the previous 12-month period." Id. § 2611(2)(A).
Seizing upon this language, Plumley filed suit against
SCI in Maine's federal district court, alleging that SCI violated
the FMLA and the Labor Management Relations Act (LMRA), 29 U.S.C.
§§ 141-197 (1994), when it terminated his employment on October 14,
1998.3 SCI denied the material allegations of the complaint. In
due season, Plumley moved for summary judgment.
In his motion, Plumley contended that he met the
requirements for FMLA eligibility because he had worked full-time
for SCI for more than one year and had provided more than 1,250
hours of service during the twelve months preceding the leave
request. He arrived at the total number of hours by aggregating
851.25 hours actually worked up to March 21 (the date when he had
been improvidently discharged) and the hours for which he was
compensated under the arbitral award. In Plumley's estimation,
those hours — which corresponded generally to the work weeks from
March 22 to October 11, 1998, minus the two-week suspension
approved by the arbitrator — were, as a matter of law, hours of
service within the compass of the FMLA (and, thus, brought his
3
Plumley originally joined the Union as an additional
defendant, charging that the Union violated the LMRA when it did
not press his grievance. He subsequently dropped the Union as a
defendant, and the Union is not a party to this appeal.
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aggregate hours of service well over 1,250 for the relevant twelve-
month period). Building on this foundation, he asseverated that
SCI had violated the FMLA by firing him for taking leave to care
for his ailing father. In the alternative, he theorized that SCI
should be estopped from disputing his eligibility for coverage
under the FMLA. Finally, he maintained that he had a right under
the LMRA to recover from SCI since the Union had breached its duty
of fair representation (DFR) by not submitting his grievance to
arbitration.
SCI opposed this motion and simultaneously cross-moved
for summary judgment, emphasizing that Plumley actually had worked
fewer than 1,250 hours in the previous twelve months and thus did
not meet the criteria for FMLA eligibility. In SCI's view, this
fact scuttled both the FMLA and DFR claims. The district court
entered summary judgment in favor of SCI. This appeal followed.
II. ANALYSIS
The role of summary judgment is to look behind the facade
of the pleadings and assay the parties' proof in order to determine
whether a trial is required. McIntosh, 71 F.3d at 33. In
conventional summary judgment practice, the moving party has the
initial responsibility of suggesting the absence of a genuine issue
of material fact. Quintero de Quintero v. Aponte-Roque, 974 F.2d
226, 227-28 (1st Cir. 1992). That entails supporting the motion,
by affidavits, admissions, or other materials of evidentiary
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quality, as to issues on which the movant bears the burden of
proof. McIntosh, 71 F.3d at 33. Once the movant has fulfilled
this obligation, the burden shifts to the summary judgment target
to demonstrate that a trialworthy issue exists. Suarez v. Pueblo
Int'l, Inc., 229 F.3d 49, 53 (1st Cir. 2000). In the last
analysis, summary judgment is appropriate only if the "pleadings,
depositions, answers to interrogatories, and 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 a judgment as a matter of law." Fed. R. Civ. P. 56(c).
This same paradigm governs our de novo review of a
district court's grant of summary judgment. See Suarez, 229 F.3d
at 53. That non-deferential mode of review is particularly
appropriate where, as here, a case turns on a question of statutory
interpretation. See Riva v. Commonwealth of Mass., 61 F.3d 1003,
1007 (1st Cir. 1995) (explaining that rulings that depend on
statutory construction engender de novo review). It is against
this backdrop that we ponder Plumley's asseverational array.
A. The FMLA Claim.
As the parties readily concede, the central issue in this
appeal presents a pure question of law: the interpretation of the
"hours of service" requirement of the FMLA. The record is pellucid
that Plumley performed only 851.25 hours of actual physical work
for SCI in the twelve-month period prior to the date when he
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absented himself to visit his ailing father. In the first
instance, then, Plumley's case stands or falls on the
classification of the hours that he did not actually work but for
which he was compensated under the arbitral award. If those hours
comprise hours of service within the purview of the FMLA, then
Plumley has demonstrated his eligibility for FMLA benefits (and,
therefore, his action should have survived a motion for summary
judgment). If, however, those hours do not count for FMLA
purposes, then Plumley was not eligible for FMLA benefits (and,
therefore, his action was ripe for brevis disposition).
The district court interpreted the FMLA as excluding the
hours in question and entered judgment accordingly. We test this
determination.
In plotting the contours of a statute, courts must look
first to its language and structure. Lopez-Soto v. Hawayek, 175
F.3d 170, 172 (1st Cir. 1999); United States v. Charles George
Trucking Co., 823 F.2d 685, 688 (1st Cir. 1987). Thus, statutory
interpretation always begins with the text of the relevant statutes
— and it sometimes ends there as well. When the statutory language
"points unerringly in a single direction, and produces an entirely
plausible result, it is unnecessary – and improper – to look for
other signposts or to browse in the congressional archives."
Charles George Trucking, 823 F.2d at 688.
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With these precepts in mind, we examine the statutory
provisions at issue here. The FMLA instructs us that "[f]or
purposes of determining whether an employee meets the hours of
service requirement . . . , the legal standards established under
section 207 of [Title 29] shall apply." 29 U.S.C. § 2611(2)(C).
Section 207 is part of the Fair Labor Standards Act (FLSA), 29
U.S.C. §§ 201-219 (1994). The applicable subsection deals with pay
classifications. It states that the "'regular rate' at which an
employee is employed shall be deemed to include all remuneration
for employment paid to, or on behalf of, the employee . . . ." Id.
§ 207(e).
The phrase "for employment" is critically important. To
ensure needed guidance, the FMLA, in 29 U.S.C. § 2611(3), refers
courts to FLSA § 203(g) for the definition of "employ" (the root of
"employment"). That section provides that "'[e]mploy' includes to
suffer or permit to work." Because this phrase is open-ended —
"includes" is not all-encompassing — we must broaden our search for
the meaning of the words that Congress wrote.
We conduct this inquiry with a keen awareness of the
general principle that, absent credible evidence to the contrary,
courts should assume that Congress knew, and embraced, widely
accepted legal definitions of specific words used in drafting
particular statutes. United States v. Nason, 269 F.3d 10, 16 (1st
Cir. 2001). That principle bears fruit in this instance. For
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legal purposes, the standard definition of "employment" is "[w]ork
for which one has been hired and is being paid by an employer."
Black's Law Dictionary 545 (7th ed. 1999). By like token, the word
"work" is defined in its verb form as "[t]o exert effort; to
perform, either physically or mentally." Id. at 1599. Merging
these definitions into one coherent sentence, we find that the
statutory language, in every technical sense, indicates that only
those hours that an employer suffers or permits an employee to do
work (that is, to exert effort, either physically or mentally) for
which that employee has been hired and is being paid by the
employer can be included as hours of service within the meaning of
the FMLA.
To end our analysis here would truncate the process, for
the task of statutory construction often is informed by reading the
whole of the statute. Acadia Ins. Co. v. McNeil, 116 F.3d 599, 604
(1st Cir. 1997). This case is no exception: other language in
FLSA § 207 strongly supports the conclusion that hours of service
must be limited to hours actually worked at the behest of the
employer. We explain briefly.
FLSA § 207(e) contains a list of remunerations that the
regular rate "shall not be deemed to include." This compendium
encompasses such things as "reward[s] for service, the amount of
which are not measured by or dependent on hours worked, production,
or efficiency [and] payments made for occasional periods when no
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work is being performed due to vacation, holiday, illness, failure
of the employer to provide sufficient work, or other similar
cause." 29 U.S.C. § 207(e)(1)-(2). These exclusions (and the
statutory language used in their explication) illustrate that any
compensation that is not paid for hours actually worked in the
service and at the gain of the employer is not to be counted toward
hours of service. It is surpassingly difficult to make a
principled distinction between wages received for hours not worked
because an employer has failed to provide sufficient work and wages
received for hours not worked because an employer unjustifiably has
kept the employee from working (and, thus, has failed to provide
sufficient work).
Plumley demurs. Represented by able counsel, he argues
that the arbitral award can be distinguished from the exemplars
listed in FLSA § 207(e) on the basis that all the listed items
provide some benefit to the employee, whereas a wrongfully
discharged employee – even one who subsequently prevails at
arbitration – does not benefit at all from his mistreatment. This
characterization is of doubtful validity; as this case illustrates,
a wrongfully discharged employee who prevails at arbitration
receives not only reinstatement but also the wages that he would
have earned even though he has not performed the services to which
those wages relate. In that sense, the wrongfully discharged
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employee benefits to the same extent as the employee who, say, is
paid for down time.
In all events, Plumley's characterization, even if
accurate, adds no dimension to our analysis. Congress directed
courts to use the "legal standards established under section 207 of
[the FLSA]" in order to determine the way in which hours of service
should be measured. 29 U.S.C. § 2611(2)(C). One of these
standards, enunciated long ago by the Supreme Court, is that "work"
for purposes of the FLSA means "physical or mental exertion
(whether burdensome or not) controlled or required by the employer
and pursued necessarily and primarily for the benefit of the
employer . . . ." Tennessee Coal, Iron & R.R. Co. v. Muscoda Local
No. 23, 321 U.S. 590, 598 (1944) (emphasis supplied). Our
derivation of the statutory language comports with this
definition.4 Moreover, Plumley cites no precedent under the FLSA
in which an adjudication hinged upon whether the employee was (or
4
We recognize, of course, that the extent of exertion involved
carries little legal weight, because "an employer, if he chooses,
may hire [one] to do nothing, or to do nothing but wait for
something to happen." Armour & Co. v. Wantock, 323 U.S. 126, 133
(1944). Nevertheless, the quoted language from Tennessee Coal has
withstood the test of time, and constitutes the yardstick by which
claims under the FLSA are measured. See United Transp. Union Local
1745 v. City of Albuquerque, 178 F.3d 1109, 1116 (10th Cir. 1999);
Dunlop v. City Elec., Inc., 527 F.2d 394, 401 (5th Cir. 1976);
Secretary of Labor v. E.R. Field, Inc., 495 F.2d 749, 751 (1st Cir.
1974); Karr v. City of Beaumont, 950 F. Supp. 1317, 1321-22 (E.D.
Tex. 1997).
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was not) benefitted by the employer's payment. This lack of
citation is understandable.
The case law shows, consistent with Tennessee Coal, that
courts faced with scenarios not clearly anticipated by Congress
have looked primarily to whether the employer was benefitted to
determine if particular hours are covered under FLSA § 207. See,
e.g., Richardson v. Costco Wholesale Corp., 169 F. Supp. 2d 56, 61
(D. Conn. 2001) (holding that employee's time spent in "lock-in
collection procedure" does not constitute work under the FLSA
because not integral to employer's business activities); Ragnone v.
Belo Corp., 131 F. Supp. 2d 1189, 1194-95 (D. Or. 2001)
(determining that pilot's on-call time was not spent primarily for
the benefit of the employer and its business and thus did not
constitute actual hours worked under the FLSA); cf. Dinges v.
Sacred Heart St. Mary's Hosp., Inc., 164 F.3d 1056, 1059 (7th Cir.
1999) (reasoning that emergency medical technician's on-call time
is not work under the FLSA). Consequently, we decline Plumley's
invitation to determine which hours are covered hours of service
based upon the benefit inuring to the employee rather than the
benefit inuring to the employer.
Plumley also argues that FLSA § 207 works by exclusion,
necessitating the inclusion of all compensation (and, therefore,
all hours of service) not explicitly described in one of its
subsections. The fatal flaw in this construct is that it reads the
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limiting phrase "for employment" out of the text of the statute.
It is black-letter law that all words in a statute are presumed to
have meaning and should be given full effect when feasible. E.g.,
United States v. Victoria-Peguero, 920 F.2d 77, 81 (1st Cir. 1990);
United States v. Ven-Fuel, Inc., 758 F.2d 741, 751-52 (1st Cir.
1985). The words "for employment" fit naturally into the rhythm of
FLSA § 207. Those words inform courts what remunerations to
include in calculating an employee's "regular rate," and, by
incorporation, his hours of service under the FMLA.5
Because Congress imported FLSA § 207 into the FMLA, a
thorough analysis requires us to ensure that our interpretation of
§ 207, when transplanted into the soil of the FMLA, produces a
plausible result. See Charles George Trucking, 823 F.2d at 688.
We turn next to that task.
The stated purposes of the FMLA are "(1) to balance the
demands of the workplace with the needs of families . . . ; (2) to
entitle employees to take reasonable leave for medical reasons . .
. ; [and] (3) to accomplish the[se] purposes . . . in a manner that
5
To be sure, "remuneration" is customarily defined as the act
of paying "a suitable equivalent in return for goods provided,
services rendered, or losses incurred; recompense." American
Heritage Dictionary of the English Language 1476 (4th ed. 2000)
(emphasis supplied). Under this definition, the arbitral award
reasonably could be characterized as payment for losses incurred.
We are not free, however, to choose this course. Rather, we must
give effect to the statutory text as Congress wrote it. Viewed
through that lens, the arbitral award cannot be considered payment
for services rendered.
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accommodates the legitimate interests of employers . . . ." 29
U.S.C. § 2601(b)(1)-(3). We see nothing odd about the fact that
Congress chose to strike this balance by defining eligible
employees as those who have worked for the employer during the
previous twelve months and have contributed 1,250 hours of actual
work. Indeed, if Congress chose to exclude periods when the
employer fails to provide sufficient work – a scenario completely
at the fault of the employer and out of the control of the employee
– we cannot deem it implausible that Congress would want to exclude
for FMLA purposes unproductive time elapsed during the pendency of
a grievance.
Plumley's back-up argument is that the intent of Congress
in requiring 1,250 hours of service was to insulate employers from
having to extend FMLA coverage to part-time workers. Building on
this foundation, he exhorts us to overlook the text of the statute
and find that Congress intended to cover all full-time employees.
But the foundation for this exhortation is porous: Congress chose
to differentiate eligible employees from ineligible employees by
the number of hours worked in the previous twelve months. See S.
Rep. No. 103-3, at 23 (1993), reprinted in 1993 U.S.C.C.A.N. 2, 25
(explaining that "the bill does not cover part time or seasonal
employees working less than 1,250 hours a year"). Because we
already have determined that Plumley did not actually work the
requisite number of hours, the plain letter of the law excludes him
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from coverage under the FMLA.6 Were we to hold otherwise, we would
usurp Congress's policypicking role, and, in the bargain, threaten
both the delicate statutory balance that Congress sought to achieve
and the constitutional balance envisioned by the Founders. Cf.
Victoria-Peguero, 920 F.2d at 81 (declaring this court's resolve to
refrain from "substitut[ing] judicial judgment for legislative
judgment or . . . plac[ing] limitations on [statutory language]
which were not envisioned by Congress").
We summarize succinctly. Our appraisal of the text and
structure of the FMLA, together with the incorporated provisions of
the FLSA, discloses unambiguous language leading to an entirely
plausible result. Thus, we hold that hours of service, as those
words are used in the FMLA, include only those hours actually
worked in the service and at the gain of the employer. It follows
inexorably that compensation resulting from an arbitral award, in
the nature of back pay for wrongful discharge, falls outside the
statutory ambit.7
6
In arguing for a contrary conclusion, Plumley's counsel
asserted at oral argument that this court should regard the FMLA as
a remedial statute designed to protect employees. But this is an
oversimplification. The FMLA is a carefully calibrated compromise
that balances the legitimate interests of both employers and
employees. See 29 U.S.C. § 2601(b). As part of this compromise,
it provides benefits only to eligible employees. This eligibility
is the very issue in dispute here.
7
In his reply brief, Plumley argues for the first time that
SCI violated 29 U.S.C. § 2615(a)(1) (a statute that renders it
"unlawful for any employer to interfere with, restrain, or deny the
exercise of or the attempt to exercise, any right provided under
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B. The Estoppel Claim.
Plumley launches a related attack: he contends that SCI
should be estopped from disputing his FMLA eligibility. His
principal reliance is on the doctrine of collateral estoppel. That
reliance is misplaced.
Under federal law, a party wishing to invoke the doctrine
of collateral estoppel must establish (1) that the issue to be
precluded is the same as that disputed in a prior proceeding, (2)
that the issue was actually litigated in the earlier proceeding,
(3) that the issue was determined by a valid and binding final
judgment or order, and (4) that the determination of the issue in
the prior proceeding was essential to the final judgment or order.
Faigin v. Kelly, 184 F.3d 67, 78 (1st Cir. 1999). Here, Plumley
claims that the district court stripped a final order — the
arbitral award — of its full effect by not counting the wages paid
thereunder towards FMLA eligibility. This claim is unavailing:
the record contains no evidence that the FMLA was mentioned, let
alone adjudicated, in the arbitration proceeding. We conclude,
[the FMLA]"). Neither this statute nor the related regulation, 29
C.F.R. § 825.220(b)(3), were cited to the district court or in the
appellant's opening brief. Consequently, the argument is twice
forfeited. See Teamsters Local No. 59 v. Superline Transp. Co.,
953 F.2d 17, 21 (1st Cir. 1992) (explaining that arguments not
advanced in the district court cannot be raised for the first time
on appeal); Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86-87 (1st
Cir. 1990) (explaining that arguments not asserted in an
appellant's opening brief cannot be raised for the first time in
his reply brief).
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therefore, that the issue of FMLA eligibility was not before the
arbitrator, was not litigated in the arbitration, and was neither
determined by the award nor essential to its efficacy.
Plumley tries to blunt the force of this reasoning by
insisting that the arbitrator, in reinstating him to full
seniority, preserved his rights under the FMLA and necessarily
implied that his hours of service should be credited for that
purpose. This argument is refuted by the CBA's definition of
"seniority."
The CBA states in relevant part that the purpose of the
article anent seniority "is to provide an equitable measure of job
security and promotional opportunity based on the length of service
for all employees in the Bargaining Unit." That article defines
seniority as "continuous service within the Plant" and declares
that the seniority principle "shall be applied in cases of layoff,
recall[,] and transfer to an opening in another department."
From these provisions, it is plain that the CBA
establishes the relative length of employee service as a
determining factor when employees compete for jobs, promotions, and
other scarce resources. But FMLA eligibility is not doled out to
one employee at the expense of another. It is afforded to as many
employees as meet the eligibility criteria in amounts limited only
by the statute itself. Consequently, the CBA's concerns relating
to seniority do not affect — and are not affected by — FMLA
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eligibility. Thus, Plumley's collateral estoppel claim fails
because the arbitrator's reference to seniority cannot plausibly be
interpreted as incorporating statutory rights under the FMLA.
This holding also disposes of Plumley's related argument
that the lower court should have given the arbitral award
preclusive effect in accordance with the Federal Arbitration Act
(FAA), 9 U.S.C. §§ 1-16 (1994). If more were needed — and we do
not think that it is — that argument is based on a faulty premise:
that the Union had the authority to arbitrate a binding agreement
on the dimensions of Plumley's statutory rights under the FMLA.
For the most part, statutory rights conferred by Congress
upon individual workers cannot be consigned to the grievance
procedures created under collective bargaining agreements. See
Pryner v. Tractor Supply Co., 109 F.3d 354, 363 (7th Cir. 1997)
(discussing individual rights under Title VII). This tenet applies
to statutory rights created under the FMLA. See Bonilla v. Small
Assemblies Co., 2001 WL 630969, at *4, 80 Empl. Prac. Dec. ¶
40,609, 143 Lab. Cas. ¶ 34,276 (N.D. Ill. 2001). If unions were so
empowered, the rights of a minority (each individual union member)
would be subject to the will of the majority.
This gets the grease from the goose. If a union cannot
arbitrate a binding agreement for an individual worker regarding
statutory rights, an arbitration proceeding undertaken pursuant to
the CBA cannot yield a final judgment or order binding the employer
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on that issue. Thus, the FAA estoppel argument also fails the
third element of the collateral estoppel test.
Finally, Plumley argues that SCI should be equitably
estopped from denying his FMLA eligibility. This argument flows
from his insistence that SCI communicated to him a false
proposition, namely, that he was being terminated properly. He
claims that he relied upon this false proposition and did not
appear for work, thereby forfeiting his FMLA eligibility. This
construct was only vaguely hinted at below, and for that reason is
likely forfeit. See Teamsters Local No. 59 v. Superline Transp.
Co., 953 F.2d 17, 21 (1st Cir. 1992). More fundamentally, it
twists equitable estoppel doctrine into a shape that the law does
not recognize.
Simply stated, equitable estoppel prevents one "from
denying the consequences of his conduct where that conduct has been
such as to induce another to change his position in good faith or
such that a reasonable man would rely upon the representations
made." Clauson v. Smith, 823 F.2d 660, 662 (1st Cir. 1987)
(citations and internal quotation marks omitted). It requires that
(1) the party to be estopped must know the facts; (2) that party
must intend that his conduct be acted upon (or must act in a way
that leads the party asserting the estoppel to believe it is so
intended); (3) the latter must be ignorant of the true facts; and
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(4) he must rely on the estopping conduct to his detriment. Id. at
661.
This body of law does not help Plumley because it clearly
presupposes that the person invoking the doctrine had a choice of
actions to take and, of his own volition, changed position based on
the conduct of, or representations made by, the other party. Here,
however, Plumley had no such options. He was discharged, and could
not thereafter have engaged in hours of service accountable under
the FMLA. Moreover, the record makes manifest that Plumley did not
rely on SCI's representation as to the propriety of the discharge.
To the contrary, he fought that action tooth and nail. For these
reasons, the doctrine of equitable estoppel is inappropriate.
C. The LMRA Claim.
We are left with the LMRA claim. In the last analysis,
however, this claim depends on the viability of Plumley's FMLA
claim. To understand why, it is necessary to explain the structure
of hybrid DFR claims.
The Supreme Court has made it clear that an "employee may
bring an action against his employer . . . , provided the employee
can prove that the union . . . breached its duty of fair
representation in its handling of the employee's grievance." Vaca
v. Sipes, 386 U.S. 171, 186 (1967). A union can breach this duty
if its "conduct toward a member of the collective bargaining unit
is arbitrary, discriminatory, or in bad faith." Id. at 190.
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Because an individual employee does not have an unfettered right to
have each and every grievance taken to arbitration, the mere
failure to take a dispute to arbitration does not establish
liability. Id. at 191-92. If, however, the union fails to take a
meritorious claim to arbitration, that failure may transgress the
duty of fair representation. See Vaca, 386 U.S. at 191; Laurin v.
Providence Hosp., 150 F.3d 52, 62 (1st Cir. 1998); Sarnelli v.
Amalgamated Meat Cutters and Butcher Workmen, 457 F.2d 807, 808
(1st Cir. 1972) (per curiam).
This algorithm means that to succeed on his LMRA claim
Plumley must establish that he had a meritorious claim that the
Union handled in a perfunctory manner, or that the Union's conduct
toward him was otherwise arbitrary, discriminatory, or in bad
faith. The only argument that Plumley offers to support his DFR
count is that the Union arbitrarily refused to take his FMLA claim
to arbitration. As the FMLA claim is devoid of merit, see supra
Part II(A), the DFR count lacks any visible means of support.
After all, Plumley had no absolute right to arbitration of his
grievance, and his bare complaint that the Union disposed of his
grievance contrary to his desire does not establish a DFR breach.
We will not paint the lily. Plumley has offered no
significantly probative evidence to show that the Union breached
its duty of fair representation. That evidentiary gap absolves
SCI, for an employer cannot be liable on a DFR claim unless the
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union too is liable. Vaca, 386 U.S. at 186. Accordingly, the
district court appropriately entered summary judgment for SCI on
this claim. See Suarez, 229 F.3d at 53.
III. CONCLUSION
We need go no further. Although we are neither
insensitive to the equities at stake in this situation nor
unmindful of the tug of competing considerations, justice hones its
edges on hard cases. On which side of this edge employees such as
Plumley fall is a legislative choice, for it is Congress's mission
to set the policy of positive law. Our role is to interpret that
law with precision and predictability. When Congress facilitates
our task by enacting a detailed statutory framework, we must follow
its lead.
Affirmed.
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