Duckworth v. Pratt & Whitney, Inc.

• Decision Date: 08 May 1998
• Docket Number: No. 97-2244,97-2244
• Citation: 152 F.3d 1
• Parties: 135 Lab.Cas. P 33,699, 4 Wage & Hour Cas.2d (BNA) 1281, 13 NDLR P 200 Mark DUCKWORTH, Plaintiff, Appellant, v. PRATT & WHITNEY, INC., Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

152 F.3d 1

135 Lab.Cas. P 33,699, 4 Wage & Hour Cas.2d

(BNA) 1281,

13 NDLR P 200

Mark DUCKWORTH, Plaintiff, Appellant, v. PRATT & WHITNEY, INC., Defendant, Appellee.

No. 97-2244.

United States Court of Appeals, First Circuit.

Heard May 8, 1998.

Decided July 14, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied

August 24, 1998.

Helen Norton, with whom Donna R. Lenhoff, Janet S. Chung, National Partnership For Women & Families, Peter L. Thompson and Law Offices of Ronald Coles, were on brief, for appellant.

Richard G. Moon, with whom Jonathan Shapiro, Melinda J. Caterine, and Moon, Moss, McGill, Hayes & Shapiro, P.A. were on brief, for appellee.

Leif G. Jorgenson, Attorney, United States Department of Labor, with whom Marvin Krislov, Deputy Solicitor of Labor for National Operations, Steven J. Mandel, Associate Solicitor, and William J. Stone, Counsel for Appellate Litigation, were on brief, for United States Secretary of Labor, amicus curiae.

Catherine K. Ruckelshaus, Sara E. Rios, Patricia A. Shiu, Catherine R. Albiston, and Robin Runge on brief for National Employment Law Project, Employment Law Center (a project of the Legal Aid Society of San Francisco), National Council of Jewish Women, United Mine Workers of America, Equal Rights Advocates, Center for Women Policy Studies, Union of Needletrades, Industrial & Textile Employees, Women Employed, American Federation of State, County and Municipal Employees, International Federation of Professional and Technical Engineers, American Federation of Teachers, American Association of University Women, RESOLVE, Service Employees International Union, American Association of Retired Persons, National Women's Law Center, American Civil Liberties Union of Massachusetts, and 9to5, National Association of Working Women, amici curiae.

Ann Elizabeth Reesman, Robert E. Williams and McGuiness & Williams on brief for Equal Employment Advisory Council, amicus curiae.

Loretta M. Smith and New England Legal Foundation on brief for Associated Industries of Massachusetts, Business and Industry Association of New Hampshire, Connecticut Business and Industry Association and Maine Chamber and Business Alliance, amici curiae.

Before LYNCH, Circuit Judge, CAMPBELL and BOWNES, Senior Circuit Judges.

LYNCH, Circuit Judge.

The facts alleged in this case are simple: that Pratt & Whitney refused to rehire Mark Duckworth because he had a "poor" attendance rating resulting from his fifty-two day absence from work in 1994 caused by a serious health condition, an absence protected by the federal Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601-54, and its state counterpart, Maine's Family Medical Leave Requirements, Me.Rev.Stat. Ann. tit. 26, §§ 843-48 (West 1997). Duckworth says the refusal to rehire violated these laws because the employer's decision was based on Duckworth's use of statutorily protected leave. Duckworth's complaint was dismissed for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). We reverse and reinstate the lawsuit.

I.

We state the facts as they are alleged in Duckworth's complaint, which we take to be true for the purposes of a motion to dismiss. See Salois v. Dime Sav. Bank, 128 F.3d 20, 22 (1st Cir.1997).

Duckworth was employed by a Pratt & Whitney manufacturing facility in North Berwick, Maine from 1980 until December 1994, when he was laid off. Attendant to the layoff, one of Duckworth's former supervisors completed an "Employment Termination Record" sometime around January 6, 1995. The Termination Record had a line entitled "Rehire Status." On that line, the supervisor wrote that Duckworth's attendance was "poor." Nearly two years later, on October 17, 1996, Duckworth unsuccessfully applied to Pratt & Whitney for a job. Duckworth's complaint states that the "poor" attendance rating was the basis for Pratt & Whitney's refusal to rehire him. Duckworth alleges that the "poor" rating resulted from his taking fifty-two days of medical leave in 1994, leave that was protected by the FMLA, and that Pratt & Whitney's refusal to rehire him thus interfered with his FMLA-protected right to take medical leave.

We take it as given that the 1994 leave was covered by the FMLA. Apparently, an accident left Duckworth with a punctured lung and broken ribs, which caused him to be absent from work from June 20, 1994 to August 11, 1994. The effects of those injuries and of the medications he took caused Duckworth to be absent a second time, from August 31, 1994 to September 22, 1994. He was under his physician's treatment throughout. It is also undisputed that Duckworth suffered from a "serious health condition" as defined by 29 U.S.C. § 2611(11) at the time of the absences. Further, Pratt & Whitney concedes that Duckworth was an "eligible employee" within the meaning of § 2611(2) at the time he took leave and that Pratt & Whitney was a covered "employer" within the meaning of § 2611(4).

II.

Duckworth brought suit in the United States District Court for the District of Maine in August 1997. He alleged that the employer had willfully discriminated against him for having exercised his FMLA-protected right to take medical leave, in violation of 29 U.S.C. § 2615 and its Maine analogue. ¹ That section of the FMLA, entitled "Prohibited Acts," provides:

(a) Interference with rights

(1) Exercise of rights

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 U.S.C. § 2615(a)(1).

Duckworth also relied on a regulation promulgated by the United States Department of Labor (DOL) that makes it clear that employers may not take a prospective employee's past use of FMLA-protected leave into account in hiring decisions. That regulation provides:

An employer is prohibited from discriminating against employees or prospective employees who have used FMLA leave.... [E]mployers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions....

29 C.F.R. § 825.220(c). Because he is entitled to protection under this regulation, Duckworth says he may bring an action under 29 U.S.C. § 2617(a) to enforce those rights. In this, the DOL agrees with him.

The district court dismissed the action for failure to state a claim on which relief may be granted, basing its reasoning on the provision of the Act creating a private right of action An action ... may be maintained against any employer ... by any one or more employees for and in behalf of--

(A) the employees; or

(B) the employees and other employees similarly situated.

29 U.S.C. § 2617(a)(2). The district court reasoned that because Duckworth had volunteered for a layoff, his claim arose from his status as a prospective employee, not as a current, eligible employee. The district court noted that the enforcement provisions of the Act created a private remedy only for "employees." The district court reasoned that the term "employees" is not ambiguous, but inherently applies only to current employees (thus rejecting DOL's interpretation of the term to include prospective employees), and that Duckworth had no cause of action because he was not a current employee. The court noted that if Congress had intended to include job applicants within the meaning of the FMLA, it could have expressly included job applicants within the statute's coverage, as it did in the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213. The federal claim having been dismissed, the court also dismissed, without prejudice, the pendent state claim.

III.

We review the district court's dismissal order de novo. See Doyle v. Hasbro, Inc., 103 F.3d 186, 190 (1st Cir.1996).

Although this case is a significant one for individuals and employers affected by the FMLA, it turns on a relatively straightforward and limited question of statutory construction, and then on deference to administrative lawmaking. For the purposes of its motion to dismiss, Pratt & Whitney essentially concedes that the actions described by Duckworth's complaint may have violated 29 U.S.C. § 2615, which makes it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right" protected by the FMLA. But, Pratt & Whitney argues, he has no judicial forum available, only an administrative one.

Pratt & Whitney correctly notes that Congress provided several mechanisms for enforcing the FMLA. First, Congress provided "employees" an express private right of action to enforce the Act. See 29 U.S.C. § 2617(a)(2). ² The Secretary of Labor has authority to bring civil actions against violators. See id. § 2617(b). Aggrieved individuals may file an administrative complaint with the DOL. See id. § 2617(b)(1). ³ Hence, Pratt & Whitney argues, if Duckworth has a claim at all, he must rely on administrative enforcement because he was not an "employee" at the time of the violation, but only a prospective employee.

Thus, the question is whether Duckworth may avail himself of the Act's private right of action, a right of action that is limited to "employees." The district court determined that the Act provides a private remedy only for those employees who suffer adverse action at the time they are employed by the employer in question. This interpretation would exclude prospective employees who complain that they were not hired because they had used FMLA-protected leave in the past, as well as former employees whose previous employer retaliates against them for using FMLA-protected leave by, for example, giving a negative reference to a future employer. ⁴

We do not write on a clean slate. The Act delegates to the Secretary of Labor broad authority to "prescribe such regulations as are necessary to carry out" the Act. 29 U.S.C. § 2654. The regulations on which Duckworth relies were promulgated pursuant to the requirements of notice-and-comment rulemaking...