Smith v. Bellsouth Telecommunications

• Decision Date: 27 November 2001
• Docket Number: No. 00-15708,00-15708
• Parties: (11th Cir. 2001) ARTHUR LEROY SMITH, Plaintiff-Appellant, v. BELLSOUTH TELECOMMUNICATIONS, INC., Defendant-Appellee
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1303

273 F.3d 1303 (11th Cir. 2001)

ARTHUR LEROY SMITH, Plaintiff-Appellant, v. BELLSOUTH TELECOMMUNICATIONS, INC., Defendant-Appellee.

No. 00-15708

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

November 27, 2001

Appeal from the United States District Court for the Northern District of Alabama

Before EDMONDSON and WILSON, Circuit Judges, and PAUL^*, District Judge.

WILSON, Circuit Judge:

This appeal presents an issue of first impression in this Circuit: whether a former employee who alleges that his employer retaliated against him in its decision not to rehire him should be considered an "employee" under the enforcement provision of the Family and Medical Leave Act of 1993 (FMLA) that provides for a private right of action "against any employer . . . by any one or more employees." 29 U.S.C. § 2617(a)(2). The district court held that Arthur Leroy Smith, a former BellSouth employee who applied for reemployment, lacked standing to bring suit because the FMLA affords a private right of action only to individuals who suffer adverse action while they are employed. Because we find that the provision of the FMLA that provides a right of action to "employees" is ambiguous, and that the Department of Labor regulation interpreting the FMLA to protect former employees from discrimination in hiring decisions is reasonable, we must afford this regulation deference. We therefore reverse.

BACKGROUND

Smith appeals the district court's grant of summary judgment in favor of BellSouth on Smith's FMLA claim. Smith resigned his position as a BellSouth service representative in October of 1998. While employed by BellSouth, he had taken leave under the FMLA. When he reapplied with BellSouth in January of 1999, BellSouth staffing manager Tira Knockett pulled Smith's file and saw that it was marked "Not eligible for rehire." Knockett called one of Smith's former supervisors to discuss why he was not eligible for rehire. She took notes during that conversation, and wrote, "Per [manager]. Took a lot of FMLA, attendance bad, work ethic bad, abusive, temperamental." In large letters at the bottom of her notes, she wrote and underlined, "Do Not Rehire." Smith's former supervisor, Jeremy Duncan, said that he recommended against Smith's rehire because of Smith's poor attendance. The manager of Smith's group, Gary Jordan, said that Smith's attendance problems were "[t]he only reason that he would not have been rehired."

Smith brought suit, alleging race discrimination and violations of the FMLA in BellSouth's decision not to rehire him. The district court granted BellSouth's motion for summary judgment on the race discrimination claims, but asked the parties to submit briefs addressing whether the FMLA's prohibition against retaliation applied to hiring decisions. The district court then granted BellSouth's motion for summary judgment on the FMLA claims, holding that because the FMLA provided a private right of action to "employees" and Smith was not employed by BellSouth when it decided not to rehire him, Smith lacked standing to bring suit. Smith v. BellSouth Telecomm., Int'l, Inc., 117 F. Supp. 2d 1213, 1216-17 (N.D. Ala. 2000).

STANDARD OF REVIEW

We review a grant of summary judgment de novo. Hilburn v. Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1225 (11th Cir. 1999). Summary judgment is proper when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Much of this case turns on statutory interpretation - a question of law we also review de novo. United States v. Hooshmand, 931 F.2d 725, 737 (11th Cir. 1991).

DISCUSSION

The FMLA entitles a covered employee to take up to twelve weeks of leave in a twelve-month period for the birth or adoption of a child, or the "serious health condition" of the employee or the employee's child, spouse, or parent. Id. § 2612(a)(1). To protect this right, the FMLA prohibits an employer from interfering with an employee's attempt to exercise his leave right or retaliating against an employee for opposing practices made unlawful under the FMLA. Id. § 2615. If an employer engages in these prohibited acts, the FMLA allows "any one or more employees" to bring suit for damages or equitable relief. Id. § 2617(a)(2).

The district court found that Congress's intent was clear from the statute itself - when Congress authorized a private right of action for "employees," it meant only those employees who suffered adverse action at the time they were employed. Smith, 117 F. Supp. 2d at 1217-18. Since Smith had resigned, the district court found, he was not an "employee" when BellSouth decided not to rehire him, and therefore had no standing to bring suit under the FMLA. Id. at 1217-18. Finding no ambiguity in the statute, the district court declined to afford deference to the Department of Labor regulation interpreting the FMLA to prohibit employers from using an employee's past use of FMLA leave as a negative factor in hiring decisions.¹ Id. at 1216-18. The district court viewed the regulation as an invalid attempt to expand the protection of the statute beyond its clear meaning. Id. at 1216.

The First Circuit, the only circuit court of appeals to date that has addressed this issue, reached the opposite conclusion on similar facts in Duckworth v. Pratt & Whitney, Inc., 152 F.3d 1 (1st Cir. 1998). Duckworth likewise involved a former employee who alleged that his former employer violated the FMLA by refusing to rehire him based on his past use of FMLA leave.² Id. at 2-3. After examining the language of the FMLA and comparing it to similar statutes, the First Circuit decided that the term "employee" was ambiguous and was not clearly limited to current employees. Id. at 9. The court afforded deference to the Department of Labor regulation interpreting the FMLA to prohibit an employer from taking FMLA leave into account in hiring decisions. Id. at 11. To define "employee" narrowly such that a former employee who alleges discrimination in the decision not to rehire him lacks standing to bring suit under the FMLA would frustrate the purposes of the Act. Id. at 10-11. "That interpretation would permit an employer to evade the Act by blacklisting employees who have used leave in the past or by refusing to hire prospective employees if the employer suspects they might take advantage of the Act." Id. at 11.

In this case, the district court rejected the Duckworth approach, based in part on a misunderstanding that Duckworth was decided under a broader definition of "employee." Smith, 117 F. Supp. 2d at 1216 n.7. For the reasons set forth below, we join the First Circuit in holding that a former employee who alleges his former employer refused to rehire him based on his past use of FMLA leave qualifies as an "employee" under § 2617(a)(2).

I

The two-step process set out in Chevron U.S.A. Inc. v. N.R.D.C., 467 U.S. 837, 842-45 (1984), guides us in determining whether to afford deference to an agency regulation interpreting a statute the agency is charged with administering. First, we ask "whether Congress has directly spoken to the precise question at issue." Id. at 842. If the will of Congress is clear from the statute itself, our inquiry ends - "the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. at 842-43. "[I]f the statute is silent or ambiguous," however, we next ask whether the agency's construction of the statute is reasonable. Id. at 843-44. "[A] court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency." Id. at 844. To determine whether the statutory language is ambiguous, we consider "the language itself, the specific context in which that language is used, and the broader context of the statute as a whole." Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997).

Addressing the first prong of the Chevron inquiry - whether the FMLA provision providing a right of action to "employees" is ambiguous - we begin by examining the language in the enforcement provision itself. Section 2617(a)(2) affords a private right of action to "any one or more employees." The district court concluded that with this language, the FMLA unambiguously "provides a limited enforcement mechanism" only for those individuals "who were in an employment relationship with a defendant at the time the alleged violation of the right occurred." Smith, 117 F. Supp. 2d at 1217. The United States Supreme Court recognized in Robinson that it might seem natural, at first glance, to read the term "employee" to mean only current employees.³ 519 U.S. at 341. However, like the Robinson court, we find that this initial impression yields under closer analysis. After considering the statutory definition of employee that the FMLA adopted from the FLSA and the expansive interpretation courts have given the term "employee" in other statutes with similar definitions, we find the term "employee" in the enforcement provision of the FMLA to be ambiguous.

The FMLA defines the term "employee" by reference to the definition in the FLSA which states, "the term 'employee' means any individual employed by an employer." 29 U.S.C. § 203(e)(1).⁴ This definition of employee does not necessarily exclude Smith, since it could be read as referring to someone who previously had been employed by an employer as well as someone who currently is employed. See Robinson, 519 U.S. at 342 (stating that the Title VII definition of employee as "'an individual employed by an employer'" is "consistent with either current or past employment").

The broad interpretation courts have given to the term employee under the FLSA and other statutes with similar definitions further militates against a finding that the term "employee" unambiguously refers only to current employees. When Congress chose to incorporate the FLSA definition of employee into...