IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT. NANCY KOSAKOW, Plaintiff Appellant,

Transcription

1 IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT NANCY KOSAKOW, Plaintiff Appellant, v. NEW ROCHELLE RADIOLOGY ASSOCIATES, P.C., Defendant Appellee. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK BRIEF AMICUS CURIAE OF THE EQUAL EMPLOYMENT ADVISORY COUNCIL IN SUPPORT OF DEFENDANT-APPELLEE AND IN SUPPORT OF AFFIRMANCE Ann Elizabeth Reesman* Rae T. Vann McGUINESS NORRIS & WILLIAMS LLP 1015 Fifteenth Street, N.W., Suite 1200 Washington, DC (202) January 25, 2001 Attorneys for Amicus Curiae EQUAL EMPLOYMENT ADVISORY COUNCIL * Counsel of Record

2 CORPORATE DISCLOSURE STATEMENT Pursuant to Fed. R. App. P and 29(c), Amicus Curiae Equal Employment Advisory Council discloses the following: 1) The Equal Employment Advisory Council has no parent corporations. 2) No publicly held company owns 10% or more stock in the Equal Employment Advisory Council. Ann Elizabeth Reesman McGUINESS NORRIS & WILLIAMS LLP 1015 Fifteenth Street, N.W., Suite 1200 Washington, DC (202) Attorneys for Amicus Curiae EQUAL EMPLOYMENT ADVISORY COUNCIL

3 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii INTEREST OF THE AMICUS CURIAE...1 STATEMENT OF THE CASE...3 SUMMARY OF ARGUMENT...4 ARGUMENT...6 I. THE PLAINTIFF EMPLOYEE BEARS THE ULTIMATE BURDEN OF PROVING, BY A PREPONDERANCE OF THE EVIDENCE, THAT SHE IS BOTH ELIGIBLE FOR LEAVE AND ENTITLED TO REINSTATEMENT UNDER THE FMLA...6 A. As Several Federal Courts Have Held, the Burden of Proving Eligibility for, and Entitlement to, Substantive FMLA Benefits Falls upon the Employee...6 B. The Secretary of Labor s Regulation Placing the Burden upon the Employer of Proving a Legitimate Business Reason for Denial of an FMLA Benefit Represents an Impermissible Construction of the Act and Therefore Is Invalid...9 II. SINCE THE FMLA PROVIDES COVERAGE ONLY FOR EMPLOYEES WHO MEET THE MINIMUM ELIGIBILITY REQUIREMENTS, ELIGIBILITY CANNOT BE CREATED BY ESTOPPEL...14 A. An Employee Must Meet the FMLA s Statutory Eligibility Requirements in Order to Qualify for FMLA Leave...14 B. Section (d) of the Secretary of Labor s Administrative Regulations, Which Attempts to Create Eligibility by Estoppel in a Different Context, Is Invalid as a Matter of Law...16 III. CONCLUSION...21 CERTIFICATE OF COMPLIANCE

4 TABLE OF AUTHORITIES FEDERAL CASES BFP v. Resolution Trust Corp., 511 U.S. 531 (1994) Belgrave v. City of New York Human Res. Admin., 5 Wage & Hour Cas. 2d (BNA) 1043 (E.D.N.Y. 1999), aff d without opinion, 2000 U.S. App. LEXIS (2d Cir. 2000)... passim Bond v. Sterling, Inc., 77 F. Supp.2d 300 (N.D.N.Y. 1999)... 5, 8, 9 Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791 (11th Cir. 2000)... 5, 18, 19 Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837 (1984)... passim Dormeyer v. Comerica Bank-Illinois, 223 F.3d 579 (7th Cir. 2000)... 5, 17, 18 Duckworth v. Pratt & Whitney, 152 F.3d 1 (1st Cir. 1998)... 2 EEOC v. Kidder Peabody & Co., 156 F.3d 298 (2d Cir. 1998)... 2 EEOC v. Staten Island Sav. Bank, 207 F.3d 144 (2d Cir. 2000)... 2 FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) Gadinski v. Shamokin Area Cmty. Hosp., 116 F. Supp.2d 586 (M.D. Pa. 2000) Hodgens v. General Dynamics Corp., 144 F.3d 151 (1st Cir. 1998)... 2 King v. Preferred Tech. Group, 166 F.3d 887 (7th Cir. 1999)... 5, 7 Kosakow v. New Rochelle Radiology Associates, P.C., 88 F. Supp.2d 199 (S.D.N.Y. 2000)... 3, 4 Leibovitz v. New York City Transit Auth., Civ (L) (2d Cir. 1999)... 2 ii

5 McGregor v. Autozone, Inc., 180 F.3d 1305 (11th Cir. 1999)... 2 Miller v. Defiance Metal Prods., 989 F. Supp. 945 (N.D. Ohio 1997) O'Connor v. PCA Family Health Plan, Inc., 200 F.3d 1349 (11th Cir. 2000)... 7 Rice v. Sunrise Express, Inc., 209 F.3d 1008 (7th Cir.), cert. denied, 121 S. Ct. 567 (2000)... passim Scheidecker v. Arvig Enters., Inc., 2000 U.S. Dist. LEXIS (D. Minn. 2000) Seaman v. Downtown P'ship, 991 F. Supp. 751 (D. Md. 1998) Watkins v. J&S Oil Co., 164 F.3d 55 (1st Cir. 1998)... 5, 7, 9 Wolke v. Dreadnought Marine, Inc., 954 F. Supp (E.D. Va. 1997)... 17, 18, 20 STATUTES Family and Medical Leave Act, 29 U.S.C et seq.... 1, 4, 6 29 U.S.C. 2601(b)(1) U.S.C. 2611(2)(A) U.S.C. 2611(2)(A)(ii) U.S.C. 2612(a)(1) U.S.C. 2614(a)(1) U.S.C. 2614(a)(3)(B)... 7, U.S.C. 2617(a)(1)(A)(iii) U.S.C iii

6 Uniformed Services Employment and Reemployment Act of 1993, 38 U.S.C et seq , U.S.C. 4312(d)(2) REGULATIONS 29 C.F.R (d)... passim 29 C.F.R , 10, 12, C.F.R (a) iv

7 The Equal Employment Advisory Council (EEAC) respectfully submits this brief as amicus curiae conditioned on the granting of the accompanying motion for leave. The brief urges this Court to affirm the decision below, and thus supports the position of Appellee New Rochelle Radiology Associates, P.C. INTEREST OF THE AMICUS CURIAE The Equal Employment Advisory Council (EEAC) is a nationwide association of employers organized in 1976 to promote sound approaches to the elimination of employment discrimination. Its members include over 340 of the nation s largest private sector corporations, collectively providing employment to over 17 million people throughout the United States. EEAC s directors and officers include many of industry s leading experts in the field of equal employment opportunity. Their combined experience gives EEAC a unique depth of understanding of the practical, as well as legal, considerations relevant to the proper interpretation and application of equal employment policies and requirements. EEAC s members are firmly committed to the principles of nondiscrimination and equal employment opportunity. All of EEAC s members are employers subject to the Family and Medical Leave Act (FMLA), 29 U.S.C et seq., as well as other labor

8 2 and employment statutes and regulations. As employers, and as potential defendants in FMLA actions, EEAC s members will be directly affected by the Court s determination on the issues presented in this matter, namely, (1) whether an FMLA plaintiff bears the burden of proving the employer has violated the FMLA; and (2) whether statutory minimum eligibility requirements preclude finding ineligible employees eligible by estoppel. Because of its interest in the application of the nation s fair employment laws, EEAC has filed over 470 briefs as amicus curiae in numerous cases before the Supreme Court, the United States Courts of Appeals, and various state supreme courts. As part of this amicus activity, EEAC has filed briefs in cases involving the FMLA 1, as well as numerous briefs in this Court involving various other employment laws 2. Thus, EEAC has an interest in, and a familiarity with, the issues and policy concerns involved in this case. EEAC seeks to assist the Court by highlighting the impact its decision in this case may have beyond the immediate concerns of the parties to the case. Accordingly, this brief brings to the attention of the Court relevant 1 E.g., McGregor v. Autozone, Inc., 180 F.3d 1305 (11th Cir. 1999); Duckworth v. Pratt & Whitney, 152 F.3d 1 (1st Cir. 1998); Hodgens v. General Dynamics Corp., 144 F.3d 151 (1st Cir. 1998). 2 E.g., EEOC v. Staten Island Sav. Bank, 207 F.3d 144 (2d Cir. 2000); Leibovitz v New York City Transit Auth., Civ (L) (2d Cir. 1999); EEOC v. Kidder Peabody & Co., 156 F.3d 298 (2d Cir. 1998).

9 3 matter that has not already been brought to its attention by the parties. Because of its experience in these matters, EEAC is well situated to brief the Court on the relevant concerns of the business community and the significance of this case to employers. STATEMENT OF THE CASE The Appellee, New Rochelle Radiology Associates, P.C. (New Rochelle) is a professional medical corporation that provides radiological services to patients in the Bronx and Westchester County, New York. Kosakow v. New Rochelle Radiology Associates, P.C., 88 F. Supp.2d 199, 202 (S.D.N.Y. 2000). The Appellant, Nancy Kosakow (Kosakow) worked as a part-time x-ray technologist for New Rochelle from 1978 through March 7, Id. On January 14, 1997, Kosakow commenced a medical leave of absence in order to undergo surgery to remove a cystic mass on her left ovary. Id. On March 7, 1997, Kosakow was notified that her part-time position as x-ray technologist had been eliminated due to overstaffing, and was offered per diem work, which she rejected. Id. at Thereafter, she filed employment discrimination charges with the New York State Department of Human Rights and the U.S. Equal Employment Opportunity Commission, both of which were dismissed on the merits.

10 4 Kosakow then filed the instant action alleging, based on the same facts that were presented in the earlier administrative proceeding, that New Rochelle violated the Family and Medical Leave Act, 29 U.S.C et seq., by failing to restore her to her position as x-ray technologist at the end of her leave. Id. at 204. After discovery, New Rochelle moved the district court for summary judgment on the grounds that, among other reasons, Kosakow was not an eligible employee qualified for leave under the Act, and that even assuming she was eligible for leave, she was not entitled to job restoration because her position was eliminated for legitimate business reasons. The district court granted New Rochelle s motion, finding that Kosakow lacked the requisite 1,250 hours of service in the twelve months immediately preceding her leave of absence, and that she was not entitled to job restoration because her position as x-ray technologist was eliminated for reasons unrelated to the leave. This appeal ensued. SUMMARY OF ARGUMENT The employee, and not the employer, carries the ultimate burden of demonstrating both eligibility for leave of absence under the Act and entitlement to job restoration at the conclusion of the leave. Rice v. Sunrise Express, Inc., 209 F.3d 1008, 1018 (7th Cir.), cert. denied, 121 S. Ct. 567

11 5 (2000); King v. Preferred Tech. Group, 166 F.3d 887, 891 (7th Cir. 1999); Watkins v. J&S Oil Co., 164 F.3d 55, 59 (1st Cir. 1998); Belgrave v. City of New York Human Res. Admin., 5 Wage & Hour Cas. 2d (BNA) 1043, (E.D.N.Y. 1999), aff d without opinion, 2000 U.S. App. LEXIS (2d Cir. 2000); Bond v. Sterling, Inc., 77 F. Supp.2d 300, (N.D.N.Y. 1999). The FMLA does not contain any provision that assigns the burden of proving compliance with the Act to the employer. Section of the Secretary of Labor s administrative regulations, which attempts to shift to the employer the burden of proving an individual s lack of entitlement to a benefit under the FMLA, represents an impermissible construction of the Act and is invalid as a matter of law. Neither the FMLA nor the Secretary of Labor s implementing regulations permit an ineligible employee to become eligible for leave under the Act by virtue of an employer s technical notice violation. Section (d) of the regulations, which purports to create eligibility by estoppel in a different context, represents an impermissible extension of the statute and has been invalidated by the Seventh and Eleventh Circuit Courts of Appeals. Dormeyer v. Comerica Bank-Illinois, 223 F.3d 579, 582 (7th Cir. 2000); Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, (11th Cir. 2000).

12 6 ARGUMENT I. THE PLAINTIFF EMPLOYEE BEARS THE ULTIMATE BURDEN OF PROVING, BY A PREPONDERANCE OF THE EVIDENCE, THAT SHE IS BOTH ELIGIBLE FOR LEAVE AND ENTITLED TO REINSTATEMENT UNDER THE FMLA A. As Several Federal Courts Have Held, the Burden of Proving Eligibility for, and Entitlement to, Substantive FMLA Rights Falls upon the Employee Simply put, the employee carries the burden of proof in causes of action brought under the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C et seq. Because Kosakow failed to prove a violation of the Act, the district court s dismissal of her claim was proper and should be affirmed by this Court. The FMLA was enacted, in part, to balance the demands of the workplace with the needs of families. 29 U.S.C. 2601(b)(1). It permits eligible employees of covered employers to take a maximum of twelve weeks of unpaid leave of absence for the birth or adoption of a child, in order to care for the serious health condition of a spouse, child or parent, or due to the employee s own serious health condition. 29 U.S.C. 2612(a)(1). Upon the expiration of an FMLA-qualifying leave of absence, an eligible employee who returns to work is entitled to be restored to the position he or she held prior to the commencement of the leave or to an

13 7 equivalent position. 29 U.S.C. 2614(a)(1). This right is not absolute, however, and is expressly limited by the Act itself. O Connor v. PCA Family Health Plan, Inc., 200 F.3d 1349, 1354 (11th Cir. 2000). Specifically, 104(a)(3)(B) of the Act provides, [n]othing in this section shall be construed to entitle any restored employee to any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave. 29 U.S.C. 2614(a)(3)(B) (emphasis added). Thus, an employee seeking to return to work from an FMLA-qualifying leave of absence will be limited in doing so to the extent that reinstatement represents a benefit to which the employee would not have been otherwise entitled. Id. A plaintiff alleging denial of a right under the FMLA bears the burden of demonstrating, by a preponderance of the evidence, both eligibility under the Act and entitlement to the benefit sought. Rice v. Sunrise Express, Inc., 209 F.3d 1008, 1018 (7th Cir.) (employee carries the burden of proving entitlement to reinstatement at the end of leave of absence), cert. denied, 121 S. Ct. 567 (2000); King v. Preferred Tech. Group, 166 F.3d 887, 891 (7th Cir. 1999) (employee must demonstrate, by a preponderance of the evidence, entitlement to FMLA leave); Watkins v. J&S Oil Co., 164 F.3d 55, 59 (1st Cir. 1998) (same); Belgrave v. City of New York Human Res. Admin., 5

14 8 Wage & Hour Cas. 2d (BNA) 1043, (E.D.N.Y. 1999) (same), aff d without opinion, 2000 U.S. App. LEXIS (2d Cir. 2000); Bond v. Sterling, Inc., 77 F. Supp.2d 300, (N.D.N.Y. 1999) (same). In Rice v. Sunrise Express, Inc., the Seventh Circuit ruled that the district court improperly had placed the burden of proof on the employer to demonstrate that it had a legitimate business reason for failing to reinstate the plaintiff at the end of her leave. While the plaintiff was out on a medical leave of absence, her employer underwent a business downturn, which required the company to eliminate one of its billing clerk positions. The company asserted that its reason for selecting the plaintiff for layoff was because her work ethic was inferior to that of her similarly situated coworker. After a jury trial, the district judge instructed the jury that the employer had the burden of proving it had a legitimate business reason for terminating the plaintiff s employment; the jury returned a verdict in the plaintiff s favor. 209 F.3d at In reversing the verdict, the Seventh Circuit ruled that the district court had instructed the jury improperly as to the allocation of proof in FMLA substantive rights cases and that the employee must always prove denial of a benefit to which she is entitled. The court found that even where the employer wishes to claim that the benefit would not have been available

15 9 even if the employee had not taken leave, once the employer has met its burden of going forward on that issue, the employee must ultimately convince the trier of fact, by a preponderance of the evidence, that the benefit is one that the employee would have received if leave had not been taken. Rice, 209 F.3d at 1018; see also Watkins, 164 F.3d at 59; Belgrave, 5 Wage & Hour Cas. 2d (BNA) at ; Bond, 77 F. Supp.2d at Thus, it was Kosakow, and not New Rochelle, who bore the burden of demonstrating both eligibility for leave and entitlement to the benefit she sought, i.e., job restoration at the end of her leave of absence. This Court should adopt the well-reasoned views of its sister circuits and affirm dismissal of Kosakow s action. B. The Secretary of Labor s Regulation Placing upon the Employer the Burden of Proving a Legitimate Business Reason for Denial of an FMLA Benefit Represents an Impermissible Construction of the Act and Therefore Is Invalid In enacting the FMLA, Congress conferred upon the Secretary of Labor the authority to promulgate regulations for the administration of the Act. 29 U.S.C While considerable weight should be accorded to an executive department s construction of a statutory scheme it is entrusted to administer, courts may review an administrative regulation to ensure it

16 10 represents a reasonable interpretation of the statute. Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 844 (1984) (footnote omitted). Section of the Secretary of Labor s FMLA administrative regulations seeks to place upon the employer the burden of proving that it has not violated the FMLA: An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period. An employer must be able to show that an employee would not have otherwise been employed at the time reinstatement is requested in order to deny restoration to employment. For example an employer would have the burden of proving that an employee would have been laid off during the FMLA leave period and, therefore, would not be entitled to restoration. 29 C.F.R (a) (emphasis added). In Chevron U.S.A. v. Natural Resources Defense Council, the U.S. Supreme Court articulated a two-part standard to be applied by courts reviewing the validity of an administrative regulation: When a court reviews an agency s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. 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. If, however, the court determines Congress has not

17 11 directly addressed the precise question at issue, the court does not simply impose its own construction of the statute, as would be necessary in the absence of administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency s answer is based on a permissible construction of the statute. Chevron, 467 U.S. at (footnotes omitted). If the agency s interpretation does not represent a permissible construction of the statute, it is invalid. Id. at The FMLA does not contain language that requires an employer to prove that it did not violate the Act. It does contain one provision that speaks directly to the scope of an employer s burden of proof and narrowly limits it to a situation not involved here. The first and only reference in the text of the law to an employer s burden of proof is found under the enforcement provision of the Act. 29 U.S.C. 2617(a)(1)(A)(iii). If an FMLA violation is proven, the employer may attempt to limit its monetary liability by demonstrating to the satisfaction of the court a good faith, albeit mistaken, belief that its actions were lawful. Id. If the employer fails to sustain its burden of proof on this issue, it may not avoid a liquidated damages award. The employer s burden of proving its good faith defense does not come into play, however, unless and until there is a finding of employer liability on the merits.

18 12 In determining whether Congress has specifically addressed the question at issue, a reviewing court should not confine itself to examining a particular statutory provision in isolation. The meaning -- or ambiguity -- of certain words or phrases may only become evident when placed in context. It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 135 (2000) (citations omitted). Here, Congress had an opportunity to, but did not, require the employer to prove compliance with the substantive provisions of the Act. Rather, it determined that the only burden of proof that should fall upon an employer is regarding proof of a good faith affirmative defense. Reading the FMLA as a whole, the Secretary of Labor s imposition of the burden of proof in FMLA cases on the employer does not represent a permissible construction of the statute. In her brief amicus curiae, the Secretary of Labor contends that Section is consistent with Congress intent to place the burden of proof in FMLA cases on the employer. Amicus Curiae brief of the Secretary of Labor at 18. In support of her contention, the Secretary compares the FMLA to the Uniformed Services Employment and Reemployment Act of 1993 (USERRA), 38 U.S.C et seq., which provides reemployment rights to eligible individuals who serve in the uniformed services. Id. She

19 13 asserts that, [t]o assure the veteran s reemployment rights, [USERRA] explicitly provides that when an employer fails to restore an individual to the position he or she would have held absent the service, the employer must prove that its actions come within the limited exceptions to the guarantee of reemployment. Id. (emphasis added). She goes on to say that, [t]here, as under the FMLA, placing the burden on the employer who fails to reinstate the worker is consistent with congressional intent. Id. (emphasis added). The Secretary s reasoning is flawed. In fact, comparing the FMLA to USERRA further illustrates that Congress did not allocate the burden of proving the absence of an FMLA violation to the employer. As the Secretary points out, Congress expressly requires an employer, under USERRA, to prove that its reason for failing to reemploy a veteran upon return from service in an active campaign was not based on such service. 38 U.S.C. 4312(d)(2). No comparable language appears in the FMLA. [I]t is generally presumed that Congress acts intentionally and purposefully when it includes particular language in one section of a statute but omits it in another. BFP v. Resolution Trust Corp., 511 U.S. 531, 537 (1994) (citation omitted). That Congress chose to require the employer to prove its reason for failing to reinstate an employee upon return from leave of absence is proper under USERRA, and not the FMLA, further evidences

20 14 that the employee, and not the employer, carries the burden of proof in FMLA cases. Thus, applying the Chevron test to the instant case, Section of the Secretary of Labor s administrative regulations, which expressly requires the employer to carry the burden of proving that it did not violate the FMLA, contravenes the plain meaning of the Act and therefore is invalid 3. II. SINCE THE FMLA PROVIDES COVERAGE ONLY FOR EMPLOYEES WHO MEET THE MINIMUM ELIGIBILITY REQUIREMENTS, ELIGIBILITY CANNOT BE CREATED BY ESTOPPEL A. An Employee Must Meet the FMLA s Statutory Eligibility Requirements In Order To Qualify For FMLA Leave New Rochelle moved the court below for summary judgment on Kosakow s theory that, even if she failed to meet the law s eligibility requirements she should be considered eligible by estoppel. The court below denied the motion, apparently believing that the FMLA permits eligibility to be presumed in this way, although the court did grant New 3 Kosakow s claim that 29 U.S.C. 2614(a)(3)(B) operates as an affirmative employer defense to liability is equally unpersuasive. As noted above, this section, which sets forth an eligible employee s right to reinstatement, expressly cautions that [n]othing in this section shall be construed to entitle any restored employee to any right, benefit, or position other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave. Id. It represents a specific limitation on an eligible employee s restoration rights, and operates as a condition precedent that must be satisfied in order for the employee to be deemed entitled to the benefit in question. The employer s obligations are not triggered unless and until the employee satisfies that condition. Thus, what Kosakow seeks to characterize as an affirmative defense is, in fact, an express limitation on the very substantive right to which she claims an entitlement.

21 15 Rochelle summary judgment on the merits. As more fully set forth below, the district court could and should have granted New Rochelle summary judgment on this ground as well. Only eligible employees are entitled to an FMLA-protected leave of absence. The Act expressly provides that an eligible employee is one who has been employed for at least 1,250 hours of service with such employer during the previous 12-month period. 29 U.S.C. 2611(2)(A)(ii). Accordingly, someone like Kosakow, who was not employed for at least 1,250 hours of service during the twelve-month period immediately preceding the commencement of her leave of absence, is not an eligible employee under the FMLA. In the proceeding below, Kosakow claimed that she was unaware that she was short the number of hours of service required under the FMLA to qualify her for leave under the Act. She further contended that because New Rochelle failed to provide her with notice of her rights under the FMLA, which would have included the leave eligibility requirements, the company interfered with her rights under the Act and therefore should be estopped from claiming her ineligibility for FMLA benefits. While the district court did not rule directly on the issue, there can be no question that as a matter of law, Kosakow cannot be rendered eligible for

22 16 FMLA leave where she has failed to demonstrate that, during the period of time in question, she met the statutory definition of an eligible employee under the Act. Contrary to Kosakow s argument, the Act does not permit an ineligible employee to become eligible for FMLA leave by virtue of an employer s technical notice violation. Indeed, not even the Secretary of Labor s administrative regulations suggest such a possibility. Insofar as there is no legal basis for concluding that Kosakow may be deemed eligible for FMLA rights by virtue of New Rochelle s alleged failure to notify her of her eligibility, or lack thereof, her eligibility by estoppel argument must fail. B. Section (d) of the Secretary of Labor s Administrative Regulations, Which Attempts to Create Eligibility by Estoppel in a Different Context, Is Invalid as a Matter of Law One of the Secretary of Labor s FMLA regulations that attempts to create eligibility by estoppel in a somewhat different context already has been held by two other circuit courts of appeals to be invalid as a matter of law. Section (d) of the Secretary of Labor s FMLA administrative regulations provides that once an employer has received notice from the employee of his or her request for FMLA leave, the employer must either confirm the employee s eligibility based upon a projection that the employee

23 17 will be eligible on the date leave would commence or must advise the employee when the eligibility requirement is met. 29 C.F.R (d). According to the regulation, if an employer fails to inform the employee of his or her eligibility prior to the commencement of the leave, the employee will be deemed eligible. Id. Thus, Section (d) of the regulations purports to allow an employee who may not otherwise be eligible for FMLA leave to be deemed eligible simply by virtue of the employer s failure to inform the employee of his or her eligibility under the Act prior to commencement of the leave 4. Under a literal application of the regulation, an employee could work for one day, then inform her employer she is sick and is leaving. If the employer fails to tell the employee she is ineligible for FMLA leave, the regulation ostensibly would deem her eligible. Wolke v. Dreadnought Marine, Inc., 954 F. Supp. 1133, 1137 (E.D. Va. 1997). The Seventh and Eleventh Circuit Courts of Appeals, as well as several district courts, have invalidated Section (d) of the Secretary of Labor s FMLA regulations as contravening the plain meaning of the Act. Dormeyer v. Comerica Bank-Illinois, 223 F.3d 579 (7th Cir. 2000); 4 The Secretary s regulation, in effect, is yet another attempt to improperly shift the burden of proof in such cases to the employer by relieving the employee of her obligation to demonstrate, as a threshold matter, that she is eligible for leave under the Act.

24 18 Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791 (11th Cir. 2000); Belgrave v. City of New York Human Res. Admin., 5 Wage & Hour Cas. 2d (BNA) 1043 (E.D.N.Y. 1999), aff d without opinion, 2000 U.S. App. LEXIS (2d Cir. 2000); Scheidecker v. Arvig Enters., Inc., 2000 U.S. Dist. LEXIS (D. Minn. 2000); Seaman v. Downtown P ship, 991 F. Supp. 751 (D. Md. 1998); Wolke v. Dreadnought Marine, Inc., 954 F. Supp (E.D. Va. 1997). In Dormeyer v. Comerica Bank-Illinois, the plaintiff, relying on Section (d), claimed that she was FMLA-eligible by estoppel as a result of her employer s failure to respond to her request for FMLA leave. The Seventh Circuit dismissed her claim, ruling that Section (d) is invalid. The Court reasoned: Although the Department of Labor has, like other administrative agencies, the authority to issue regulations to carry out the duties that Congress has assigned to it in the Family and Medical Leave Act it has no authority to change the Act. But that is what the regulation tries to do. Dormeyer, 223 F.3d at 582. Relying on Dormeyer, the Eleventh Circuit in Brungart v. BellSouth Telecommunications, Inc. also ruled that Section (d) is invalid and unenforceable. Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791 (11th Cir. 2000). It determined:

25 19 [T]he Department of Labor in this regulation has attempted to pry apart the clear words of the act in order to create a gap into which it can wedge its policy preference. We understand the Department s motive, which is to further the goals of the act by forcing employers to respond to leave requests within a reasonable period of time. But when an administrative agency seeks to improve legislation by altering the basic coverage provisions that Congress has written into law, it has gone too far. Brungart, 231 F.3d at 797. Thus, the only federal appellate courts to review the validity of Section (d) have determined that its precept of eligibility by estoppel represents an impermissible construction of the FMLA 5. Applying the Chevron test to Section (d) of the Secretary of Labor s administrative regulations, it is clear that the eligibility by estoppel concept set forth therein directly conflicts with the plain and unambiguous language of the Act and is therefore invalid. The FMLA does not contain a provision like that of Section (d), nor does it provide for any other circumstance under which an otherwise ineligible employee may be deemed eligible under the Act. Rather, it expressly defines eligible employee as one who has worked at least 1,250 hours in the 5 But compare Gadinski v. Shamokin Area Cmty. Hosp., 116 F. Supp.2d 586 (M.D. Pa. 2000) (upholding Secretary of Labor s regulations); Miller v. Defiance Metal Prods., 989 F. Supp. 945 (N.D. Ohio 1997) (same).

26 20 twelve months preceding the commencement of his or her leave of absence. 29 U.S.C. 2611(2)(A). On the issue of eligibility for FMLA leave, Congress has directly spoken to the precise question, and the Secretary of Labor, therefore, must give effect to the unambiguously expressed intent of Congress. Chevron, 467 U.S. at 844 (footnote omitted). Any regulatory exceptions which purport to shorten the twelve-month eligibility period are impermissible creations of the Department of Labor. Wolke, 954 F. Supp. at 1137 (footnote omitted). Section (d), which purports to expand the definition of eligible employee beyond that which was contemplated by Congress when it enacted the FMLA, represents an impermissible extension of the statute and therefore is invalid on its face. Accordingly, while the FMLA regulations attempt to create eligibility by estoppel by virtue of an employer s failure to provide a certain type of notice, two federal courts of appeals have recognized that such an invention is inappropriate under the Act. So too should the district court have rejected Kosakow s attempt to manufacture the FMLA eligibility she lacked.

27 21 CONCLUSION Accordingly, the district court s dismissal of Kosakow s action should be affirmed for the foregoing reasons, as well as for those reasons set forth by the court below. Respectfully submitted, Ann Elizabeth Reesman* Rae T. Vann McGUINESS NORRIS & WILLIAMS LLP 1015 Fifteenth Street, N.W., Suite 1200 Washington, DC (202) Attorneys for Amicus Curiae EQUAL EMPLOYMENT ADVISORY COUNCIL * Counsel of Record

28 CERTIFICATE OF COMPLIANCE I hereby certify that the Brief Amicus Curiae of the Equal Employment Advisory Council in Support of Defendant-Appellee and in Support of Affirmance complies with Fed. Rule App. P. 32(a)(7)(B). The brief is written in 14-point Times New Roman typeface using Microsoft Word 8.0 word processing software and has 4,393 words. Ann Elizabeth Reesman McGUINESS NORRIS & WILLIAMS LLP 1015 Fifteenth Street, N.W., Suite 1200 Washington, DC (202) Attorneys for Amicus Curiae EQUAL EMPLOYMENT ADVISORY COUNCIL

29 CERTIFICATE OF SERVICE I hereby certify that two (2) true and correct copies of the Brief Amicus Curiae of the Equal Employment Advisory Council in Support of Defendant-Appellee and in Support of Affirmance were served on the following counsel of record on January 25, 2001 by Federal Express Standard Overnight Service, shipping prepaid, addressed as follows: William D. Frumkin, Esq. SAPIR & FRUMKIN LLP 399 Knollwood Road, Suite 310 White Plains, NY Jordy Rabinowitz, Esq. GARFUNKEL, WILD & TRAVIS, P.C. 111 Great Neck Road Great Neck, NY Ann Elizabeth Reesman McGUINESS NORRIS & WILLIAMS LLP 1015 Fifteenth Street, N.W., Suite 1200 Washington, DC (202) Attorneys for Amicus Curiae EQUAL EMPLOYMENT ADVISORY COUNCIL