332 F.3d 316 (5th Cir. 2003), 02-50446, Faris v. Williams WPC-I, Inc.

Docket Nº:02-50446
Citation:332 F.3d 316
Party Name:Faris v. Williams WPC-I, Inc.
Case Date:May 27, 2003
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 316

332 F.3d 316 (5th Cir. 2003)

Carol FARIS, Plaintiff-Appellee,


WILLIAMS WPC-I, INC., et al., Defendants,

Nextira LLC, Also Known as Williams Communications Solutions LLC; Susan Baird, In Her Individual Capacity, Defendants-Appellants.

No. 02-50446.

United States Court of Appeals, Fifth Circuit

May 27, 2003.

Page 317

[Copyrighted Material Omitted]

Page 318

Mark Anthony Sanchez (argued), Christopher J. Gale, Gale, Wilson & Sanchez, San Antonio, TX, for Plaintiff-Appellee.

J. Tullos Wells, Julia M. Gonzalez Rendon (argued), Bracewell & Patterson, San Antonio, TX, for Defendants-Appellants.

Appeal from the United States District Court for the Western District of Texas.

Before GARWOOD, SMITH and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Nextira LLC ("Nextira") and Susan Baird appeal a determination that a post-termination release signed by Carol Faris was unenforceable under 29 C.F.R. § 825.220(d), a regulation issued pursuant to the Family and Medical Leave Act of 1993 ("FMLA"). Concluding that enforcement of the release is not prohibited by the regulation, and that the release was ratified by Faris's failure to tender back the consideration paid for the signing of the release, we reverse and render judgment for appellants.


Faris worked as an occupational health specialist for Nextira from November 1997 to June 1999, when Baird, her supervisor, terminated her, citing poor performance. Faris received two weeks' pay in lieu of notice. On the same day, she was offered an additional $4,063.32, the equivalent of one month's salary, in exchange for signing a release that purported to waive her rights to, inter alia, "all other claims arising under any other federal, state or local law or regulation;" it did not specifically mention the FMLA. She also received a memorandum advising that she had 45 days to consider the release and seven days to revoke if she signed, though the parties dispute whether she was so advised verbally. 1 Faris signed the release and received $4,063.32; she understood that the payment was in return for the signing of the release. She has not tendered back the payment.

Faris sued Nextira and Baird (collectively, "Nextira"), asserting she was fired in retaliation for asserting her rights under the FMLA. Following discovery, defendants moved for summary judgment as to the enforceability of the release, and Faris moved for partial summary judgment on whether the release was per se unenforceable under § 825.220(d) ("the regulation").

The court denied defendants' motion and granted Faris's, holding that the plain language of the regulation dictated that FMLA claims are not waivable. The district court certified the questions of law addressed in its summary judgment order under 28 U.S.C. § 1292(b), and we granted defendants leave to bring this interlocutory appeal.

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Defendants assert that the district court erred in its determination that the plain language of the regulation renders Faris's waiver void, arguing instead that, under a plain language reading, the regulation does not reach the waivability of post-termination FMLA claims. Defendants contend, in the alternative, that, if the regulation is ambiguous, the relevant law under similar statutory schemes, and the common law presumption of and favor toward waivability, also support a limited reading of the regulation. 2 We conclude that the proper reading of the regulation is that it does not apply to post-dispute claims for damages under the FMLA.

We review de novo a grant or denial of summary judgment, NCNB Tex. Nat'l Bank v. Johnson, 11 F.3d 1260, 1264 (5th Cir. 1994), applying the same standard as did the district court, Deas v. River W., L.P., 152 F.3d 471, 475 (5th Cir. 1998). "Summary judgment is proper when no issue of material fact exists and the moving party is entitled to judgment as a matter of law. Questions of fact are viewed in the light most favorable to the nonmovant and questions of law are reviewed de novo." Id.


Defendants argue that the plain language of the regulation demonstrates that it does not reach retaliation claims under FMLA by former employees. Defendants focus in part on the meaning of the term "employee," reasoning that the term implicitly refers only to current employees and cannot extend toformer employees. Faris argues that the plain language does reach former employees, and this was the district court's conclusion.

The regulation reads, in relevant part: "Employees cannot waive, nor may employers induce employees to waive, their rights under FMLA." 29 C.F.R. § 825.220(d). FMLA § 2611(3) defines "employee" by reference to the FLSA, 29 U.S.C. § 203(e), which provides that "the term 'employee' means any individual employed by an employer."

This definition, by...

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