Dormeyer v. Comerica Bank-Illinois

• Decision Date: 24 July 2000
• Docket Number: BANK-ILLINOI,DEFENDANTS-APPELLEES,ET,PLAINTIFF-APPELLANT,Nos. 99-1089 and 99-3252,s. 99-1089 and 99-3252
• Citation: 223 F.3d 579
• Parties: (7th Cir. 2000) JENNIFER DORMEYER,, v. COMERICAAL.,
• Court: U.S. Court of Appeals — Seventh Circuit

Page 579

223 F.3d 579 (7th Cir. 2000)

JENNIFER DORMEYER, PLAINTIFF-APPELLANT, v. COMERICA BANK-ILLINOIS, ET AL., DEFENDANTS-APPELLEES.

Nos. 99-1089 and 99-3252

U.S. Court of Appeals, Seventh Circuit

Argued February 11, 2000

Decided July 24, 2000

[Copyrighted Material Omitted] Ernest T. Rossiello (argued), Rossiello & Associates, Chicago, IL, for plaintiff-appellant.

Bennett L. Epstein, David B. Goroff (argued), Hopkins & Sutter, Chicago, IL, for defendants-appellees.

Before Posner, Chief Judge, and Manion and Kanne, Circuit Judges.

Posner, Chief Judge.

The plaintiff, who worked as a teller for the defendant bank between April 1994 and February 1996, brought suit against the bank and related entities unnecessary to discuss charging violations of the Family and Medical Leave Act, 29 U.S.C. sec.sec. 2601 et seq., the Pregnancy Discrimination Act, 42 U.S.C. sec. 2000e(k), and the Fair Labor Standards Act, 29 U.S.C. sec.sec. 206(a), 207(a), 215(a)(2). There were other charges as well, but they have fallen by the wayside. The defendant made an offer of judgment of $1,152 on the FLSA count (which sought overtime pay), and this was accepted. The district court granted summary judgment for the defendant on the other counts. The plaintiff then sought almost $35,000 in costs and attorneys' fees under the FLSA, which the judge cut down to $6,216. The appeals challenge both the dismissal of the FMLA and PDA counts and the reduction in the amount of fees awarded for the successful prosecution of the FLSA count.

The plaintiff had a problem of absenteeism. The bank required her to attend a "coaching session" to help her overcome the problem. That was in August 1995. The problem continued and on January 26, 1996, roughly three weeks after she had become pregnant, she received a written warning about her excessive absences. She received a second such warning on February 12 and a third on February 21. All to no avail; she was AWOL again on February 23 and 24 and was fired two days later.

Of a total of 20 unexcused absences between March 6, 1995, and the date of her discharge, nine occurred after she became pregnant, and she attributes these absences to severe morning sickness, although there is little medical substantiation of this attribution. On January 8, 1996, shortly after she became pregnant, she requested leave under the FMLA on the basis of her morning sickness. The defendant did not respond to the request, and this nonresponse is the basis of her FMLA claim. Although it is conceded that she did not satisfy the requirement for eligibility for leave under the Act that she have worked at least 1,250 hours during the 12 months preceding the day on which she wanted to take family leave, 29 U.S.C. sec. 2611(2)(A)(ii) (it is unclear by how much she fell short), she appeals to a regulation of the Department of Labor that waives statutory eligibility in cases in which the employer fails to respond promptly to a request for family leave. The regulation provides, so far as bears on this case, that "if the employer fails to advise the employee whether the employee is eligible [for family leave] prior to the date the requested leave is to commence, the employee will be deemed eligible." 29 C.F.R. sec. 825.110(d).

As several district courts have found (there are no appellate decisions), the regulation is invalid. E.g., McQuain v. Ebner Furnaces, Inc., 55 F. Supp. 2d 763, 773-76 (N.D. Ohio 1999); Seaman v. Downtown Partnership of Baltimore, Inc., 991 F. Supp. 751, 754 (D. Md. 1998); Wolke v. Dreadnought Marine, Inc., 954 F. Supp. 1133, 1135-38 (E.D. Va. 1997). Although the Department of Labor has, like other administrative agencies, the authority to issue regulations to carry out the duties that Congress has assigned to it in the Family and Medical Leave Act, 29 U.S.C. sec. 2654, it has no authority to change the Act. But that is what the regulation tries to do. It does not address an interpretive issue that the statute leaves open, and so the principle of the Chevron case is not in play. E.g., Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-44 (1984); INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999); NLRB. v. GranCare, Inc., 170 F.3d 662, 666 (7th Cir. 1999) (en banc); City of Chicago v. FCC, 199 F.3d 424, 428 (7th Cir. 1999). The statutory text is perfectly clear and covers the issue. The right of family leave is conferred only on employees who have worked at least 1,250 hours in the previous 12 months. Yet under the regulation a worker who had worked 8 hours before seeking family leave would be entitled to family leave if the employer neglected to inform the employee promptly that he or she was ineligible. And this regardless of whether the employee had incurred any detriment as a result of the employer's silence.

The last point is critical. If detrimental reliance were required, the regulation could be understood as creating a right of estoppel (specifically a right to estop, that is, forbid, the employer to raise a defense of ineligibility for the statutory benefits), and such a right might be thought both consistent with the statute and a reasonable method of implementing it, and so within the Department's rulemaking powers. Like other equitable doctrines, the doctrine of estoppel is invoked in a variety of statutory contexts without reference to particular statutory language. True, if the statute creates or excludes a right to plead estoppel, the creative power of the administering court or agency is suspended. But there is nothing in the Family Leave and Medical Act that relates to misleading eligibility notices or absences of notice; so far as notice is concerned, the statute merely requires the employer to post a general summary of the Act in the workplace. 26 U.S.C. sec. 2619. We do not read this provision to exclude the application of the doctrine of an estoppel in an appropriate case. And so an employer who by his silence misled an employee concerning the employee's entitlement to family leave might, if the employee reasonably relied and was harmed as a result, be estopped to plead the defense of ineligibility to the employee's claim of entitlement to family leave. See, e.g., Rager v. Dade Behring, Inc., 210 F.3d 776, 778-79 (7th Cir. 2000); Athmer v. C.E.I. Equipment Co., 121 F.3d 294, 296-97 (7th Cir. 1997); General Electric Capital Corp. v. Armadora, S.A., 37 F.3d 41, 45 (2d Cir. 1994).

The plaintiff has made no effort to establish the elements of an estoppel, however, and anyway the regulation on which she relies to avoid the 1,250-hours requirement is not limited to circumstances in which an employer might be estopped to deny eligibility because his conduct had induced detrimental reliance by the employee. The regulation allows an employee to claim benefits to which she is not entitled as a matter of law or equity, thus conferring a windfall by extinguishing the employer's defense without any basis in legal principle. The challenged regulation is not only unauthorized; it is unreasonable.

We move on to the plaintiff's claim under the Pregnancy Discrimination Act. The Act forbids discrimination against an employee on account of her being pregnant, and of such discrimination the only evidence in this case, evidence that falls short of making out a case that can withstand summary judgment for the employer, is some ugly comments about the plaintiff's pregnancy made by an employee who was not in the chain of command of the plaintiff and did not (so far as appears) influence in any way the decision to fire her. "The fact that someone who is not involved in the employment decision of which the plaintiff complains expressed discriminatory feelings is not evidence that the decision had a discriminatory motivation." Hunt v. City of Markham, 219 F.3d 649, 652-53 (7th Cir. July 11, 2000) (emphasis in original). Compare Sheehan v. Donlen Corp., 173 F.3d 1039, 1044-45 (7th Cir. 1999).

The plaintiff was fired because of her absenteeism, not because of her pregnancy. There was a relation, insofar as some of the absences may have been due to morning sickness, which was, of course, a consequence of her pregnancy. But the Pregnancy Discrimination Act does not protect a pregnant employee from being discharged for being absent from work even if her absence is due to pregnancy or to complications of pregnancy, unless the absences of non-pregnant employees are overlooked. Troupe v. May Dept. Stores Co., 20 F.3d 734, 738-39 (7th Cir. 1994); Marshall v. American Hospital Ass'n, 157 F.3d 520, 526 (7th Cir. 1998); Armindo v. Padlocker, Inc., 209 F.3d 1319 (11th Cir. 2000) (per curiam); In re Carnegie Center Associates, 129 F.3d 290, 296-97 (3d Cir. 1997); Fisher v. Vassar College, 70 F.3d 1420, 1448 (1995) reheard en banc on other grounds, 114 F.3d 1332 (2d Cir. 1997). And of that there is no evidence.

It might seem that a company's policy on absenteeism might be attacked from the direction of disparate impact, a permissible theory of liability under the Pregnancy Discrimination Act, e.g., Troupe v. May Dept. Stores Co., supra, 20 F.3d at 738; Scherr v. Woodland School Community Consolidated Dist. No. 50, 867 F.2d 974, 979 (7th Cir. 1988); Lang v. Star Herald, 107 F.3d 1308, 1314 (8th Cir. 1997); Garcia v. Woman's Hospital of Texas, 97 F.3d 810, 813 (5th Cir. 1996), if it could be shown that the policy weighed more heavily on pregnant employees than on non-pregnant ones and that it was not justified by compelling considerations of business need. But such an argument would not succeed. The concept of disparate impact was developed and is intended for cases in which employers impose eligibility requirements that are not really necessary for the job for which the applicant is being hired, such as requiring that applicants for a job as a dishwasher have a high school education. The statute makes this clear, see 42 U.S.C. sec. 2000e-2(k)(1)(A)(i) ("an unlawful employment practice...