Rucker v. Lee Holding Co., 06-1633.

• Decision Date: 18 December 2006
• Docket Number: No. 06-1633.,06-1633.
• Citation: 471 F.3d 6
• Parties: Kenneth RUCKER, Plaintiff, Appellant, v. LEE HOLDING CO., d/b/a Lee Auto Malls, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

471 F.3d 6

Kenneth RUCKER, Plaintiff, Appellant, v. LEE HOLDING CO., d/b/a Lee Auto Malls, Defendant, Appellee.

No. 06-1633.

United States Court of Appeals, First Circuit.

Heard September 14, 2006.

Decided December 18, 2006.

Allan K. Townsend, with whom Law Offices of Peter Thompson was on brief, for appellant.

Barbara Eby Racine, Attorney, United States Department of Labor, Howard M. Radzely, Solicitor of Labor, Steven J. Mandel, Associate Solicitor, and Paul L. Frieden, Counsel for Appellate Litigation, on brief for the Secretary of Labor, amicus curiae.

Jeffrey Neil Young and McTeague, Higbee, Case, Cohen, Whitney & Toker, P.A. on brief for Maine AFL-CIO and Maine Employment Lawyers Association, amici curiae.

Elizabeth J. Ernst, with whom James E. Fortin and Douglas Denham Buccina & Ernst were on brief, for appellee.

Ann Elizabeth Reesman, McGuiness Norris & Williams, LLP, Robin S. Conrad, Shane Brennan, and National Chamber Litigation Center, Inc. on brief for Equal Employment Advisory Council and Chamber of Commerce of the United States of America, amici curiae.

Before LYNCH, Circuit Judge, SILER,^* Senior Circuit Judge, and LIPEZ, Circuit Judge.

LYNCH, Circuit Judge.

Eligibility for leave under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., depends in part on an employee having been employed by the relevant employer "for at least 12 months." 29 U.S.C. § 2611(2)(A)(i). This case of first impression among the courts of appeals raises the issue of whether and under what circumstances an employee who has had a break in service may count previous periods of employment with the same employer toward satisfying this 12-month requirement.

Kenneth Rucker worked as a car salesman for Lee Auto Malls (Lee) in Maine for five years. Rucker then left Lee, and five years later rejoined Lee as a full-time employee. Seven months after rejoining Lee, Rucker took medical leave. Approximately two months later, Rucker's employment was terminated. Rucker filed suit claiming that the termination was in violation of the FMLA. The district court granted Lee's motion to dismiss, holding that Rucker could not combine his previous period of employment with his more recent period, and thus could not satisfy the FMLA's 12-month employment requirement.

We hold that the FMLA itself is ambiguous as to whether previous periods of employment count toward the 12-month requirement, but regulations promulgated by the United States Department of Labor (DOL), as interpreted by the DOL, establish that previous periods of employment do count. Accordingly, we reverse the judgment of the district court.

I.

Because we are reviewing the district court's granting of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), our review is de novo, and we recite and take as true the facts alleged in Rucker's complaint, drawing all reasonable inferences in his favor. See Ramirez v. Arlequin, 447 F.3d 19, 20 (1st Cir.2006).

Rucker worked for Lee as a car salesman for approximately five years and then left Lee for approximately five years. On June 5, 2004, Rucker began working for Lee again. On or about January 20, 2005, approximately seven and a half months after Rucker rejoined Lee, he ruptured a disc in his back. Over the next month and a half, he received medical treatment for his back injury, and he took medical leave at various times because pain prevented him from working. On March 7, 2005, Lee terminated Rucker's employment; at that point, Rucker had missed a total of thirteen days of work since his injury, and he was still out on medical leave.

On January 5, 2006, Rucker filed a complaint in federal district court in Maine, alleging that Lee had terminated him for taking medical leave to which he was entitled, in violation of the FMLA. The FMLA provides that "an eligible employee" is entitled to leave for, inter alia, "a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1)(D). The issue before us is whether Rucker, at the time he took medical leave, was an "eligible employee." An "eligible employee" is one who has been employed

(i) for at least 12 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.

29 U.S.C. § 2611(2)(A). In his complaint, Rucker alleged that he had worked for Lee for more than 12 months, since he had previously been employed by Lee for five years. Rucker also alleged that he had worked more than 1,250 hours since rejoining Lee in June 2004, by working more than forty hours per week.

In response, Lee filed a motion to dismiss, in which it asserted that Rucker was not an "eligible employee." Lee did not dispute that Rucker had satisfied the hours-of-service requirement in 29 U.S.C. § 2611(2)(A)(ii), but it argued that Rucker's prior period of employment could not be counted toward satisfying the 12-month requirement in 29 U.S.C. § 2611(2)(A)(i). Lee argued that "nothing in the plain language of the statute" permitted a prior period of employment, "remote in time," to be "tack[ed] on" to the current period. Thus, because Rucker had taken the leave at issue seven to nine months after rejoining Lee, under Lee's theory he had not been employed "for at least 12 months."

Lee also argued that a regulation addressing the 12-month requirement, promulgated by the DOL under the FMLA, supported its position. That regulation provides as follows:

The 12 months an employee must have been employed by the employer need not be consecutive months. If an employee is maintained on the payroll for any part of a week, including any periods of paid or unpaid leave (sick, vacation) during which other benefits or compensation are provided by the employer (e.g., workers' compensation, group health plan benefits, etc.), the week counts as a week of employment. For purposes of determining whether intermittent/occasional/casual employment qualifies as "at least 12 months," 52 weeks is deemed to be equal to 12 months.

29 C.F.R. § 825.110(b). According to Lee, the second and third sentences of the regulation modify the first sentence to give the only circumstances under which the 12 months "need not be consecutive months." It argued that because Rucker had had no "continuing connection" with Lee, such as continuing benefits, during his five years away, he could not rely on his prior employment to satisfy the 12-month requirement.

Rucker, on the other hand, argued that "[u]nder the plain language of the FMLA," he had worked for Lee for more than 12 months. Focusing on the first sentence of the DOL regulation, he read the regulation to support his contention that gaps in employment, including his own five-year gap, do not preclude eligibility under the FMLA.

On March 10, 2006, the district court granted Lee's motion to dismiss, holding that Rucker's prior period of employment did not count toward satisfying the 12-month requirement. Rucker v. Lee Holding Co., 419 F.Supp.2d 1, 3 (D.Me.2006). The court reasoned that "[t]he [DOL] regulation on its face does not give any indication that two periods of employment, separated by a conceivably limitless amount of time, can be grouped to make an otherwise ineligible employee eligible." Id. at 2. Focusing on the second and third sentences in the regulation, the court held that the regulation provided for "brief interruptions in an employee's attendance," but made "no allowance for an employee who severs all ties with the employer for a period of years." Id. at 2-3.

The court also noted that there was a lack of legislative history on point and inferred from this a lack of "legislative intent to allow employees to accumulate time despite periods of long separation from employment." Id. at 3. In the absence of legislative discussion or debate, the court found that Congress did not intend to impose on employers the "onerous requirement" of "allowing an employee to leave an employer for years or decades, only to return and immediately become an eligible employee under the twelve-month requirement." Id.

II.

We begin, as always, with the language of the statute and ask "whether Congress has directly spoken to the precise question at issue." Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). "If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. at 842-43, 104 S.Ct. 2778.

Here, there is no such statutory clarity expressing unambiguous intent. The words "has been employed ... for at least 12 months by the [relevant] employer" can be read either to refer to only the most recent period of employment by the relevant employer or to all periods of employment by that employer. Asking how long an employee "has been employed" at a particular company is an ambiguous question if he or she has had more than one period of employment.

None of the canons of statutory construction invoked by either side eliminate the statutory ambiguity.¹ The district court invoked the canon of the "dog that did not bark," reasoning that if Congress had intended to impose the "onerous requirement" of allowing employees to count their prior employment, it would have said so explicitly. Rucker, 419 F.Supp.2d at 3. The rationale for the canon, however, is that some interpretations would have been so controversial as to inevitably have drawn comment in Congress; in such a situation, Congress's silence can be taken to mean that it chose the noncontroversial path. See Chisom v. Roemer, 501 U.S. 380, 396 & n. 23, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991).

That rationale does not apply in this case. The district court found that Rucker's interpretation of the statute would be, if not controversial, at least "onerous" for...