Bellum v. Pce Constructors, Inc.

• Decision Date: 25 April 2005
• Docket Number: No. 04-60409.,04-60409.
• Citation: 407 F.3d 734
• Parties: Larry G. BELLUM, Plaintiff-Appellant, v. PCE CONSTRUCTORS, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

407 F.3d 734

Larry G. BELLUM, Plaintiff-Appellant, v. PCE CONSTRUCTORS, INC., Defendant-Appellee.

No. 04-60409.

United States Court of Appeals, Fifth Circuit.

April 25, 2005.

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Charles Eric Malouf (argued), Michael James Malouf, Jr. (argued), Malouf & Malouf, Jackson, MS, for Bellum.

Armin J. Moeller, Jr. (argued), Deborah Lynn McNeely, Balch & Bingham, Jackson, MS, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before GARWOOD, JONES and STEWART, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiff-appellant Larry G. Bellum appeals the decision of the district court granting summary judgment to defendant-appellee PCE Constructors, Inc. (PCE) on Bellum's federal claim under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., and on his pendent Mississippi law claims for both the intentional and negligent infliction of emotional distress. We affirm.

Facts and Proceedings Below

PCE is in the construction industry and does work primarily on a project-by-project basis.¹ Its principal place of business is Baton Rouge, Louisiana, though it takes on projects across several southern states. During the time giving rise to the events in this case, PCE was building a facility for Fabricated Pipe, Inc (FPI) in Fernwood, Mississippi. PCE was also involved in helping FPI establish its pipe fabrication business.

PCE hired Bellum, who had worked for PCE on a contract-basis before, on December 12, 1999 to manage a particular project at the FPI site in Fernwood. PCE had a staff of 14 at its headquarters in Baton Rouge and 41 at the FPI site. Bellum testified in his deposition that he drove each day between his home in Baton Rouge and Fernwood, a round-trip of about 190 miles. The distance between PCE's headquarters and FPI is between 66.5 and 69.5 linear miles but 88.5 miles over public roadways.²

On December 24, 2000, Bellum told his supervisor, Charles Gibson, that he was taking leave from work to have open-heart surgery. Bellum's last day was December 26, 2000. Bellum contends that while he was on leave for his heart surgery, Gibson repeatedly told both him and his wife that a job was waiting for him at the FPI site. Following his recovery from heart surgery, Bellum visited the FPI site on March 1, 2001 to investigate returning to work. Gibson apparently told him there was no longer any work for him because Bellum's project was completed in his absence. The two remained in touch over the next two weeks discussing work possibilities, but Bellum was formally terminated on March 16, 2001 without ever having returned to work.

On March 3, 2003, Bellum filed the instant suit in the district court seeking relief under the FMLA and for state law claims of emotional distress. On April 5, 2004, the district court granted summary judgment to PCE on the ground that Bellum was not an "eligible employee" under the FMLA. The district court also concluded that, absent a duty under the FMLA to rehire Bellum, PCE was free not to rehire him because Mississippi is an employment at-will state. It follows from this, the district court reasoned, that Bellum could not succeed on his claim that he suffered actionable emotional distress when PCE chose not to rehire him. It is from this disposition that Bellum now appeals.

Discussion

A. Standard of Review

We review a grant of summary judgment under the same standard applied by the district court. Faris v. Williams WPC-I, Inc., 332 F.3d 316, 319 (5th Cir. 2003). We examine questions of law de novo and construe disputed material facts in favor of the non-movant. Id.

B. The FMLA

The FMLA provides, inter alia, an "eligible employee" with "a total of 12 workweeks of leave during any 12-month period... [b]ecause of a serious health condition[.]" 29 U.S.C. § 2612(a)(1)(D). The parties do not dispute that Bellum's heart problems qualify as a "serious health condition." What they do dispute, however, is whether Bellum is an "eligible employee." PCE maintains that Bellum falls within one of two enumerated exceptions to the definition of eligible employee:

"any employee of an employer who is employed at a worksite at which such employer employs less than 50 employees if the total number of employees employed by the employer within 75 miles of that worksite is less than 50."

29 U.S.C. § 2611(2)(B)(ii). This exception applies, PCE contends, because its headquarters, as measured over public roads, is more than seventy-five miles from the FPI worksite.³ Bellum counters that the exception does not apply because the linear distance, i.e. "as the crow flies," between FPI and the Baton Rouge headquarters is less than 70 miles.

The district court resolved this controversy by consulting 29 C.F.R. § 825.111(b), which states that the "75-mile distance is measured by surface miles, using surface transportation over public streets, roads, highways and waterways, by the shortest route from the facility where the eligible employee needing leave is employed." The regulation goes on to provide that the 75-mile distance should only be measured as the crow flies when there is no "available surface transportation between worksites." Id.⁴ The district court granted summary judgment to PCE because, under the method of measurement set forth in the regulation, Bellum was not an FMLA-eligible employee. Because the FMLA speaks simply of miles, not "surface miles," Bellum urges us to strike down 29 C.F.R. § 825.111(b) as manifestly contrary to the plain language of 29 U.S.C. § 2611(2)(B)(ii).

We review federal regulations of the sort at issue here under the familiar Chevron doctrine. If a statute is unambiguous then the statute prevails over an inconsistent regulation. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 2781, 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.") (citations omitted). To ascertain whether the statute has spoken unambiguously to the question at issue, we avail ourselves of the traditional means of statutory interpretation, which include, see, e.g., Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 124 S.Ct. 1236, 1248-1249, 157 L.Ed.2d 1094 (2004), the text itself, its history, and its purpose. While the 75-mile distance set forth in the statute is not inherently ambiguous, we disagree with Bellum that the failure of Congress to stipulate a method of measuring that distance implies that it should be measured as the crow flies. To measure in linear terms as Bellum suggests would regularly conduce to absurd results and no canon of statutory construction requires us to honor plain language when to do so would frustrate the unmistakable purpose of the law. Hartford Underwriters Ins. Co. v. Union Planters Bank, N. A., 530 U.S. 1, 120 S.Ct. 1942, 1947, 147 L.Ed.2d 1 (2000) (stating that "when the statute's language is plain, the sole function of the courts — at least where the disposition required by the text is not absurd — is to enforce it according to its terms.") (internal quotation marks omitted) (quoting United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989)) (in turn quoting Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442 (1917)); Harbert v. Healthcare Services Group, Inc., 391 F.3d 1140, 1150-1151 (10th Cir.2004) (stating, as one of its reasons for striking down an FMLA regulation, that no deference is owed to an interpretation of the statute that makes arbitrary distinctions).

The error in Bellum's approach may be illustrated as follows. Suppose that Company A had its headquarters along the south rim of the Grand Canyon and a branch office on the other side only 25 miles away as the crow flies. Suppose further, quite plausibly, that the shortest distance between the two by public roads is 120 miles. Now, imagine that Company B has its headquarters next to a straight-line interstate highway and a branch office 80 miles away also right along the interstate. Under Bellum's reading of the statute, Company A would be bound by the FMLA but Company B would not be. Given that the purpose of the exception at 29 U.S.C. § 2611(2)(B)(ii) is to relieve the burden of FMLA compliance on companies with widely dispersed operations, it would make no sense to construe the statute in a way that subjects Company A but exempts Company B. See Moreau v. Air France, 356 F.3d 942, 945 (9th Cir.2004) (concluding that the purpose of the exception was "to accommodate employer concerns about `the difficulties that an employer might have in reassigning workers to geographically separate facilities.'") (quoting H.R.Rep. No. 102-135, pt. 1, at 37 (1991)); 29 U.S.C. 2601(b)(1) & (3) ("It is the purpose of this Act to balance the demands of the workplace with the needs of families... in a manner that accommodates the legitimate interests of employers."); see also Harbert, 391 F.3d at 1150 (making use of a similar hypothetical to illustrate an arbitrary and capricious interpretation of the FMLA). We conclude, therefore, that the decision of Congress not to define a method of measuring the 75-mile distance constitutes an implicit statutory gap the Secretary of Labor is authorized to fill by 29 U.S.C. § 2654 (see note 4, supra).⁵

When Congress has left an implicit gap such as this one, the question before us is simply "whether the [regulation] is based on a permissible construction of the statute." Chevron, 104 S.Ct. at 2782. In answering this question, we consider only whether the regulation is arbitrary, capricious, or manifestly contrary to the FMLA. Id. We may not substitute our own preference for a reasonable alternative devised by the Secretary of Labor. Id. "The Secretary's judgment that a particular regulation fits within" the statutory framework of...