Bailey v. Pregis Innovative Packaging, Inc.

• Decision Date: 02 April 2010
• Docket Number: No. 09-3539.,09-3539.
• Parties: Michelle L. BAILEY, Plaintiff-Appellant, v. PREGIS INNOVATIVE PACKAGING, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

600 F.3d 748

Michelle L. BAILEY, Plaintiff-Appellant, v. PREGIS INNOVATIVE PACKAGING, INC., Defendant-Appellee.

No. 09-3539.

United States Court of Appeals, Seventh Circuit.

Submitted March 17, 2010.

Decided April 2, 2010.

Michelle L. Bailey (submitted), Akron, IN, pro se.

Erin Dougherty Foley (submitted), Seyfarth Shaw LLP, Chicago, IL, for Defendant-Appellee.

Before POSNER, MANION, and HAMILTON, Circuit Judges.

POSNER, Circuit Judge.

The district court granted summary judgment for the defendant in this suit under the Family and Medical Leave Act, 29 U.S.C. §§ 2601 et seq. The appeal raises several issues, but only two warrant discussion; the others have no possible merit.

The defendant fired the plaintiff because she had received more than 8 "points" for absenteeism during a 12-month period—a firing offense under the defendant's "no-fault attendance policy." She would not have received so many points had she not taken two absences in July 2006. She contends that these absences were leaves to which the Act entitled her, and if this is correct the defendant could not lawfully penalize her for taking them. 29 U.S.C. § 2615(a)(1); 29 C.F.R. § 825.220(c); Phillips v. Quebecor World RAI, Inc., 450 F.3d 308, 310 (7th Cir.2006); Novak v. MetroHealth Medical Center, 503 F.3d 572, 577-78 (6th Cir. 2007). But to be entitled to take leaves protected by the Act in July 2006, she had to have "been employed for at least 1,250 hours of service with her employer during the previous 12-month period." 29 U.S.C. § 2611(2)(A)(ii). And she hadn't been—unless, as she argues, she is entitled to toll the 12-month period for the 56 days during that period in which she was on FMLA leave—that is, unless she is entitled to add, to the time she worked during those 12 months, the time she worked during the 56 days that preceded the 12 months.

Tolling ordinarily adds time to the end of a limitations period. Suppose a two-year statute of limitations began to run on January 1, 2008, but was tolled for six months beginning on July 1, 2008, because the defendant had agreed to waive any defense based on the statute of limitations for that period while the parties tried to work out a settlement. Then the statute of limitations would expire not on December 31, 2009, but on June 30, 2010. The problem for the plaintiff in this case is that the 1,250-hour qualifying minimum must be satisfied before she can take any further FMLA leave. So she wants to be credited with hours worked for a period, before the 12 months, that is equal to the FMLA leave she took during the 12 months that preceded the leave that caused her to be fired.

There is no basis for such a contortion of the statute—no hint in the statute or elsewhere that Congress envisaged and approved such a circumvention of the requirement that an applicant for FMLA leave have worked 1,250 hours in the preceding 12 months. We can't find a case directly on point, but are supported in our conclusion by the refusal of courts including our own to interpret the statutory term "service" in an expansive fashion that would dilute the 1,250-hour requirement. See Pirant v. U.S. Postal Service, 542 F.3d 202, 208-09 (7th Cir.2008) (employee could not count time spent putting on work uniform as "hours of service" for FMLA eligibility); Mutchler v. Dunlap Memorial Hospital, 485 F.3d 854, 858 (6th Cir.2007) (employee could not count bonus "hours" awarded for working weekends toward the 1,250 minimum because they weren't "hours actually worked"); Plumley v. Southern Container, Inc., 303 F.3d 364, 372 (1st Cir.2002) ("hours of service" include "only those hours actually worked in the service and at the gain of the employer" and so did not include hours in which the plaintiff did no work but for which he was awarded backpay in an arbitration proceeding against the employer).

The plaintiff's second argument is that the defendant retaliated against her for taking FMLA leave. Such retaliation violates the Act. See 29 U.S.C. § 2615(a)(1) ("it shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise any right provided under this subchapter"); 29 C.F.R. § 825.220(c) ("the Act's prohibition against `interference' prohibits an employer from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise FMLA rights"). A "point," which as we know jeopardizes a worker's employment with the defendant, is removed 12 months after it is imposed. But as we also know, the defendant does not count time on leave, including FMLA leave, toward the 12 months. Therefore it takes someone like the plaintiff, who has taken FMLA leave, longer to wipe the slate clean than it would take an otherwise similar employee who had not taken FMLA leave in the preceding 12 months.

The Act provides that taking FMLA leave "shall not result in the loss of any employment benefit accrued prior to the date on which the leave commenced." 29 U.S.C. § 2614(a)(2). An initial question is whether a removal of absenteeism points is an "employment benefit." If it isn't, the plaintiff wasn't deprived of anything that the Family and Medical Leave Act protects.

It is a "benefit" in approximately the sense in which granting parole is a benefit to the parolee; it reduces a penalty. A more positive light in which to view the defendant's 12-month erasure policy, however, is that every time an employee completes 12 months of work he accrues a right to have incurred up to 8 absenteeism points without losing his job.

But is this right an employment benefit within the meaning of the Act? The Act defines "employment benefits" as "all benefits provided or made available to employees by an employer, including group life insurance, health insurance, disability insurance/ sick leave, annual leave, educational benefits, and pensions." 29 U.S.C. § 2611(5). As the list of "employment benefits" is not exhaustive, the fact that it does not mention removal of absenteeism points has no significance. And the word "all" suggests that "employment benefits" should probably be construed broadly.

The Department of Labor, which administers the Family and Medical Leave Act, has issued an opinion letter (FMLA-100, 1999 WL 1002428 (Jan. 12, 1999)) saying that removal of absenteeism points is indeed an employment benefit within the meaning of the Act. Opinion letters issued by government agencies, including the Department of Labor, are "entitled to respect"—but only to the extent that they have "power to persuade." Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000), quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944); see also CenTra, Inc. v. Central States, Southeast & Southwest Areas Pension Fund, 578 F.3d 592, 601 (7th Cir.2009); Catskill Development, L.L.C. v. Park Place Entertainment Corp., 547 F.3d 115, 127 (2d Cir. 2008). There is no reasoning in this opinion letter. It just states a conclusion, which unless self-evident has no power to persuade. Arriaga v. Florida Pacific Farms, L.L.C., 305 F.3d 1228, 1238 (11th Cir.20...