Ricco v. Potter
| Decision Date | 27 July 2004 |
| Docket Number | No. 03-3294.,03-3294. |
| Parties | Doreen RICCO, Plaintiff-Appellant, v. John E. POTTER, Postmaster General, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Appeal from the United States District Court for the Northern District of Ohio, Donald C. Nugent, J Richard C. Haber (briefed), Jonathan T. Hyman (argued and briefed), Reminger & Reminger Co., Cleveland, OH, for Plaintiff-Appellant.
Annette G. Butler (argued and briefed), Asst. U.S. Attorney, Cleveland, OH, for Defendant-Appellee.
Before: MERRITT and MOORE, Circuit Judges; DUGGAN, District Judge.*
MOORE, J., delivered the opinion of the court, in which DUGGAN, D.J., joined. MERRITT, J. (p. 606), delivered a separate concurring opinion.
This appeal from the dismissal of a claim under the Family and Medical Leave Act of 1993 ("FMLA") raises an important issue of statutory construction. Specifically, this appeal requires us to interpret the phrase "hours of service" as it is used in the FMLA. We hold that make-whole relief awarded to an unlawfully terminated employee may include credit towards the hours-of-service requirement contained in the FMLA's definition of "eligible employee."
Plaintiff-Appellant, Doreen Ricco ("Ricco"), appeals the district court's dismissal under Federal Rule of Civil Procedure 12(b)(6) of her claim pursuant to the FMLA against her former employer, Defendant-Appellee, John E. Potter, Postmaster General ("Postmaster"). On appeal, Ricco argues that the district court erred by adopting the reasoning of Plumley v. Southern Container, Inc., 303 F.3d 364, 367 (1st Cir.2002), in which the First Circuit held that the hours-of-service requirement contained in the FMLA's definition of "eligible employee" includes only hours during which an employee performed actual work, not hours for which an employee was compensated pursuant to an arbitration award. Ricco further argues on appeal that the district court did not adequately balance the competing interests of employers and employees and created an incentive for employers unlawfully to terminate employees to prevent employees from satisfying the hours-of-service requirement.
For the following reasons, we REVERSE the district court's judgment granting the Postmaster's motion to dismiss under Rule 12(b)(6) and REMAND this case for further proceedings consistent with this opinion.
In July 1993, the United States Postal Service ("Postal Service") hired Ricco to work at its general mail facility in Cleveland, Ohio.1 In December 1997, the Postal Service issued Ricco "a notice of removal, effectively terminating her employment." Joint Appendix ("J.A.") at 26 (Am. Compl. & para; 7). Ricco timely grieved her December 1997 termination and ultimately proceeded to an arbitration hearing on January 19, 1999. In a February 8, 1999 award, the arbitrator ordered that Ricco's termination be converted to a thirty-work-day suspension and that Ricco "be reinstated subject to passing a fitness-for-duty examination and be made whole." J.A. at 26 (Am. Compl. & para; & para; 9, 10). Subsequently, Ricco "passed the fitness-for[-]duty examination and was returned to work with full credit for years of service for seniority and pension purposes." J.A. at 26-27 (Am. Compl. & para; 10).
After Ricco returned to work, from May through July 1999, she suffered from depression and migraines after the death of her husband, and consequently she required intermittent leaves of absence. Due to this serious health condition, Ricco requested FMLA leave in early May 1999. According to Ricco, the Postal Service denied her request for FMLA leave because it concluded that she had not met the hours-of-service requirement.2 Ricco alleges that she "had not `worked' 1250 hours in the preceding 12 months solely because she had been unlawfully terminated in December 1997 and in violation of the Collective Bargaining Agreement."3 J.A. at 27 (Am. Compl. & para; 15). Ricco further alleges that the Postal Service has previously recognized "that `[w]hen an[ ] employee is awarded back pay, accompanied by equitable remedies (i.e. full back pay with seniority and benefits, or a `make whole' remedy), the hours the employee would have worked if not for the action which resulted in the back pay period, are counted as work hours for the 1250 work hour eligibility requirement under the Family Medical Leave Act (FMLA).'" J.A. at 29 (Am. Compl. & para; 27).
On October 15, 1999, the Postal Service issued Ricco another notice of removal "due to a failure to maintain a regular work schedule." J.A. at 27 (Am. Compl. & para; 14). Ricco timely grieved her October 1999 termination and proceeded to another arbitration hearing. In a November 19, 2001 award, the arbitrator affirmed Ricco's dismissal "on the basis that [Ricco] was absent from work [and further] stated that `this is not the proper forum to litigate any alleged violations of the FMLA' and therefore refused to consider whether the FMLA had been violated." J.A. at 28 (Am. Compl. & para; 19). Thereafter, Ricco commenced this action in federal court.
On March 14, 2002, Ricco filed a two-count complaint in the district court alleging that the Postmaster terminated her in violation of the FMLA and Ohio public policy. On September 6, 2002, Ricco filed a motion to dismiss Count II of her complaint which asserted a claim based upon Ohio public policy, because that claim had been foreclosed by Ohio Supreme Court precedent. At a status conference on October 2, 2002, the Postmaster raised the potential applicability of the Plumley decision, and the parties agreed that Ricco would file an amended complaint supplementing her factual allegations and that the Postmaster would then file a motion to dismiss. Ricco filed her first amended complaint on October 17, 2002, and thereafter the Postmaster filed his motion to dismiss on October 21, 2002. The district court granted the Postmaster's motion to dismiss on February 7, 2003. Ricco filed a timely notice of appeal.
The district court had jurisdiction pursuant to 28 U.S.C. & sect; 1331, as Ricco's FMLA claim presented a federal question. This court has jurisdiction over the appeal pursuant to 28 U.S.C. § 1291.
We review de novo a district court's dismissal under Rule 12(b)(6). Marks v. Newcourt Credit Group, Inc., 342 F.3d 444, 451 (6th Cir.2003). "In deciding whether to grant a Rule 12(b)(6) motion, we `must construe the complaint in the light most favorable to the plaintiff, accept all factual allegations [of the plaintiff] as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of his claims that would entitle him to relief.'" Id. at 451-52 (quoting Allard v. Weitzman (In re DeLorean Motor Co.), 991 F.2d 1236, 1240 (6th Cir.1993)). Moreover, a Rule 12(b)(6) "motion should not be granted `unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Id. at 425 (quoting Cameron v. Seitz, 38 F.3d 264, 270 (6th Cir.1994) (quotation omitted)). The Postmaster points out that he timely raised in his answer as an affirmative defense the expiration of the FMLA's two-year statute of limitations, but that the district court did not rule upon this issue in its opinion. The FMLA provides:
(1) In general
Except as provided in paragraph (2), an action may be brought under this section not later than 2 years after the date of the last event constituting the alleged violation for which the action is brought.
(2) Willful violation
In the case of such action brought for a willful violation of section 2615 of this title, such action may be brought within 3 years of the date of the last event constituting the alleged violation for which such action is brought.
29 U.S.C. § 2617(c). The Postal Service terminated Ricco, allegedly in violation of the FMLA, on October 15, 1999, and Ricco filed her complaint approximately two and one-half years later. Therefore, Ricco's FMLA claim is time-barred unless she proves that the Postmaster's violation was willful.
Ricco, in both her initial complaint and her first amended complaint, averred that the Postmaster and the Postal Service acted negligently, willfully, and maliciously when they violated her rights under the FMLA. An employer commits a willful violation of the FMLA when it acts with knowledge that its conduct is prohibited by the FMLA or with reckless disregard of the FMLA's requirements; therefore, the determination of willfulness involves a factual question. See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 125-130, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985) (); Hillstrom v. Best Western TLC Hotel, 354 F.3d 27, 33 (1st Cir.2003); see also Williams v. Schuller Int'l, Inc., No. 00-3614, 2002 WL 193929, at *3 (6th Cir. Feb.5, 2002) (). Because a plaintiff's factual allegations must be taken as true for purposes of deciding a Rule 12(b)(6) motion to dismiss, a plaintiff may withstand such a motion merely by having alleged that the FMLA violation was willful. See Caucci v. Prison Health Servs., Inc., 153 F.Supp.2d 605, 608-09 (E.D.Pa.2001).
On appeal, Ricco contends that the district court erred by adopting the reasoning in Plumley, arguing that the First Circuit erroneously concluded that the hours-of-service requirement contained in the FMLA's definition of "eligible employee" means only hours that an employee performed actual work, not hours for which an employee was compensated pursuant to an arbitration award. In Plumley, the First Circuit looked, as...
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