391 F.3d 1140 (10th Cir. 2004), 03-1156, Harbert v. Healthcare Services Group, Inc.

Docket Nº:03-1156.
Citation:391 F.3d 1140
Party Name:Nancy E. HARBERT, Plaintiff-Appellee, v. HEALTHCARE SERVICES GROUP, INC., a Pennsylvania corporation, Defendant-Appellant. Elaine Chao, Secretary of Labor, Amicus Curiae.
Case Date:December 13, 2004
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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391 F.3d 1140 (10th Cir. 2004)

Nancy E. HARBERT, Plaintiff-Appellee,

v.

HEALTHCARE SERVICES GROUP, INC., a Pennsylvania corporation, Defendant-Appellant.

Elaine Chao, Secretary of Labor, Amicus Curiae.

No. 03-1156.

United States Court of Appeals, Tenth Circuit

December 13, 2004

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[Copyrighted Material Omitted]

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Jeffrey L. Braff, Cozen O'Connor, Philadelphia, PA, for Defendant-Appellant.

Clifford L. Beem, Clifford Beem & Associates, P.C., Denver, CO (A. Mark Isley, Clifford Beem & Associates, P.C., Denver, CO, with him on the brief), for Plaintiff-Appellee.

Roger Wilkinson, Attorney, United States Department of Labor, Washington, DC (Howard M. Radzely, Solicitor of Labor, Steven J. Mandel, Associate Solicitor, and Anne P. Fugett, Senior Attorney,

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United States Department of Labor, Washington, DC, with him on the brief), for Amicus Curiae.

Before EBEL, KELLY, and McCONNELL, Circuit Judges.

EBEL, Circuit Judge.

Nancy Harbert ("Plaintiff") brought this action against her former employer, Healthcare Services Group, Inc. ("Defendant"), alleging that Defendant wrongfully denied her request for medical leave under the Family and Medical Leave Act ("FMLA"). Defendant had denied her request based on a provision of the FMLA which excludes from FMLA eligibility any employee who is employed at a particular "worksite" if the employer employs less than 50 employees within 75 miles of that worksite.

Applying a Department of Labor ("DOL") regulation, the district court defined Plaintiff's "worksite" as Defendant's regional office in Golden, Colorado. Because Defendant employed more than 50 employees within 75 miles of its Golden office, the district court denied Defendant's motion for summary judgment and, after a bench trial, found in Plaintiff's favor. Defendant filed this appeal, arguing that the relevant portion of the DOL regulation defining the statutory term "worksite" is invalid. We exercise jurisdiction pursuant to 28 U.S.C.§ 1291, and we REVERSE the judgment of the district court and REMAND for further proceedings consistent with this opinion.

BACKGROUND

Defendant contracts out housekeeping and laundry services to long-term care institutions. Defendant employs approximately 17,000 employees and has contracts with about 1,300 long-term care facilities in 42 states. Organizationally, Defendant is divided into regions, which are composed of multiple districts. Each district is made up of individual accounts, which are the long-term care institutions. Account managers work at the account to which they are assigned and report to district managers. District managers report to regional managers. In Colorado, all district managers and the regional manager have their offices at the same location in Golden, Colorado.

Sunset Manor is a convalescent/nursing facility located in Brush, Colorado, which is more than 75 miles from Golden. In 1994, Plaintiff was hired by Sunset Manor as the Housekeeper Supervisor, and in 1995 her responsibilities were expanded to include the position of Laundry Department Supervisor. In 1997, Defendant entered into an agreement to provide housekeeping and laundry services to Sunset Manor. Plaintiff's employment with Sunset Manor was transferred to Defendant, and Plaintiff became the account manager for Defendant's Sunset Manor account. Defendant assumed all responsibility for retaining, transferring, or firing Plaintiff and also paid her salary and provided her benefits. Plaintiff's duties, however, remained essentially the same as when she was employed directly by Sunset Manor.

Plaintiff worked out of an office at Sunset Manor in Brush. When Plaintiff reported to her district manager, she reported to him at Defendant's regional office in Golden. Such reports were almost always by telephone or through the submission of written reports; Plaintiff went to the Golden office only for an occasional district meeting of account managers. Sunset Manor's administrator exercised supervision and control over Plaintiff when Plaintiff was employed by Sunset Manor, and this did not change after Plaintiff became an employee of Defendant. Plaintiff believed that she had a long-term job at

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Sunset Manor and planned to work there until her retirement at age 65.

On November 6, 1998, Plaintiff injured her right hip in a non-work related automobile accident. Plaintiff got permission from Defendant to take two 30-day periods of leave, and Plaintiff began the first 30-day period of leave on December 8, 1998. On February 20, when Plaintiff failed to report to work after the expiration of the second 30-day period of leave, Defendant terminated Plaintiff's employment.

Although Defendant had granted Plaintiff two 30-day periods of leave, Defendant denied Plaintiff's request for leave under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. The FMLA requires covered employers to provide eligible employees with up to 12 weeks of medical leave per year for, inter alia, a serious health condition that renders the employee unable to work. Id. § 2612(a) (1) (D). Only those employees whose employer employs at least 50 employees within 75 miles of that employee's "worksite" are eligible for leave under the Act. Id. § 2611(2) (B) (ii). The statutory term "worksite" is defined in a DOL regulation. See 29 C.F.R. § 825.111(a) (3).

Defendant denied Plaintiff's request for FMLA leave based on Defendant's conclusion that Plaintiff was not employed at a "worksite" at which Defendant employed 50 or more employees within 75 miles, and that she was therefore ineligible for FMLA leave. This conclusion was based on the premise that Plaintiff's "worksite" was Sunset Manor in Brush, rather than Defendant's regional office in Golden. During the relevant time period, Defendant employed fewer than 50 employees within 75 miles of Sunset Manor but employed more than 50 employees within 75 miles of its regional office in Golden.

Plaintiff filed this lawsuit, alleging that Defendant wrongfully denied her request for medical leave under the FMLA and wrongfully terminated her. Defendant moved for summary judgment in part on the ground that the relevant portion of the DOL regulation defining the statutory term "worksite" was invalid. See Harbert v. Healthcare Servs. Group, Inc., 173 F.Supp.2d 1101, 1106 (D.Colo.2001). The district court upheld the regulation and denied Defendant's motion for summary judgment. See id.

After a bench trial, the district court concluded that Plaintiff's "worksite" under the applicable regulation was Defendant's regional office in Golden, Colorado. Because Defendant employed more than 50 employees within 75 miles of its Golden office, the court held that Defendant wrongfully denied Plaintiff benefits under the FMLA. The district court awarded Plaintiff back pay, front pay, liquidated damages, interest, costs, and attorney fees.

In this appeal, Defendant concedes that the applicable DOL regulation identifies Plaintiff's "worksite" as its regional office in Golden. Defendant argues only that this regulation is invalid, contending that the agency exceeded its authority to implement the FMLA.

DISCUSSION

I. Appellate Jurisdiction

We first address whether we have jurisdiction to consider the merits of this appeal. On March 13, 2003, the district court entered an order resolving the issue of liability in Plaintiff's favor and setting forth a formula for the calculation of damages. The court instructed the parties to meet to determine the precise amount of damages and prepare a judgment in accordance with that determination. Defendant filed a notice of appeal on April 11. The

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district court later entered judgment, fixing damages in the amount agreed upon by the parties and disposing of the case. No new notice of appeal was taken from the subsequent judgment. Defendant now wishes to appeal only the issue of liability resolved in the March 13 decision, not the subsequent calculation of damages.

Under 28 U.S.C. § 1291, we have jurisdiction only over "final" decisions of the district court. Albright v. UNUM Life Ins. Co. of Am., 59 F.3d 1089, 1092 (10th Cir. 1995). Accordingly, we must determine whether the March 13 Order--the only order from which a notice of appeal was taken--was a final decision and, if not, whether it became final when the district court subsequently fixed damages and disposed of the case.

A. Whether the March 13 Order was a "final" decision

For a ruling to be final, "it must end the litigation on the merits, and the judge must clearly declare his intention in this respect." FirsTier Mortgage Co. v. Investors Mortgage Ins. Co., 498 U.S. 269, 273-74, 111 S.Ct. 648, 112 L.Ed.2d 743 (1991) (internal quotations and citations omitted). A final order is one that "leave[s] nothing for the court to do but execute the judgment." Albright, 59 F.3d at 1092 (internal quotations omitted). As a general rule, "the touchstone of a final order is a decision by the court that a party shall recover only a sum certain." Id. (citing Fed.R.Civ.P. 58) (internal quotations omitted) (emphasis in original). Accordingly, an order that determines liability but leaves damages to be calculated is not final. Id. However, pursuant to an exception to the general rule, "an order is final even if it does not reduce the damages to a sum certain if the order sufficiently disposes of the factual and legal issues and any unresolved issues are sufficiently ministerial that there would be no likelihood of further appeal." Id. at 1093 (quotations omitted).

For example, in Albright v. UNUM Life Insurance Co. of America, the plaintiff had requested in his motion for summary judgment the "monthly benefit of 66 2/3 % of his preinjury basic...

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