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In a precedent-setting case, the 7th U.S. Circuit Court of Appeals has invalidated a Department of Labor regulation that allowed an otherwise ineligible employee to obtain family leave benefits because her employer failed to promptly respond to her request for the time off. Saying the regulation “is not only unauthorized” but “unreasonable,” the three-panel court rejected an appeal from Jennifer Dormeyer, a former teller fired in 1996 from LaSalle Bank for excessive absenteeism. “The regulation allows an employee to claim benefits to which she is not entitled as a matter of law or equity, thus conferring a windfall by extinguishing the employer’s defense without any basis in legal principle,” Chief Judge Richard A. Posner wrote for a unanimous court in Jennifer Dormeyer v. Comerica Bank-Illinois, et al., Nos. 99-1098, 99-3252. The case stems from a suit filed by Dormeyer, who alleges she was suffering from morning sickness during the early stages of her pregnancy and needed the time off. She filed the complaint under the Family Medical Leave Act, the Pregnancy Discrimination Act, and the Fair Labor Standards Act. While Dormeyer ended up with a judgment of $1,152 for overtime pay under the FLSA, the district court granted summary judgment for the bank on the Family Leave and pregnancy discrimination charges. The district court, citing possible attorney misconduct, further cut attorneys’ fees by 80 percent, from the requested $35,000 to $6,216. Dormeyer’s appeal challenged the summary judgment and the attorneys’ fees. But the 7th Circuit wasn’t swayed, and instead invalidated the regulation Dormeyer used to seek relief. According to Posner, district courts in Ohio, Maryland, and Virginia had already struck down the regulation, but no federal appellate court had the opportunity to follow suit — until now. The regulation at issue — 29 C.F.R. sec. 825 1100(d) — provides that “if the employer fails to advise the employee whether the employee is eligible [for family leave] prior to the date the requested leave is to commence, the employee will be deemed eligible.” Posner wrote that the Department of Labor, by enforcing this regulation, has overstepped its authority. While courts generally adhere to the doctrine of deference to administrative agencies such as the Department of Labor, as codified in Chevron v. Natural Resources Defense Counsel, the 7th Circuit said Chevron in this instance doesn’t apply because “the statutory text is perfectly clear.” Under the Family and Medical Leave Act, “The right of family leave is conferred only on employees who have worked at least 1,250 hours in the previous 12 months,” the opinion states. “Yet, under the regulation, a worker who had worked eight hours before seeking family leave would be entitled to family leave if the employer neglected to inform the employee promptly that he or she was ineligible. And this regardless of whether the employee had incurred any detriment as a result of the employer’s silence.” Specifically in Dormeyer’s case, the court concluded she “had a problem with absenteeism” and that was the reason for her firing, not her pregnancy. The attendance problem was extensive enough that LaSalle Bank apparently required Dormeyer to attend a “coaching session” to address the issue as early as 1995, long before she became pregnant. Of a total of 20 unexcused absences between March 6, 1995 and her discharge on Feb. 26, 1996, nine were after she became pregnant. Because the court said Dormeyer was fired for being absent, it determined the Pregnancy Discrimination Act was not violated here. Otherwise, the court opined, if employers were required to excuse pregnant employees from having to satisfy legitimate aspects of their job, the court would be sanctioning a subsidy of a class of workers. This would not benefit pregnant women or women in general, Posner wrote. “Firms would be deterred from employing women of childbearing age if required to overlook the inability of a particular woman, because of complications of pregnancy, to do the work for which she had been hired,” Posner wrote. The bank’s lawyer, Bennett L. Epstein of Chicago’s Hopkins & Sutter, declined to comment. On the attorneys’ fees issue, the court also was unpersuaded. The court further criticized Dormeyer’s attorney directly in the opinion, suggesting he may have attached the Family Leave and Pregnancy Act claims in order to inflate fees for the smaller, but valid Fair Labor claim. The court noted Dormeyer’s attorney, Chicago’s Ernest T. Rossiello, allocated 124 hours, half of the total time for the entire case on the Fair Labor claim. In rejecting the fee increase, the 7th Circuit also ordered that Rossiello, within 14 days, show cause as to why he shouldn’t be sanctioned “for filing a frivolous appeal from the district court’s fee order.” Posner also noted that the court would be referring the “question of improper and possibly fraudulent billing practices” to the executive committee of the district court to consider whether to institute disciplinary proceedings against Rossiello. Rossiello denies he did anything improper. But, in the future, he said he will be sure to file overtime claims separate from other actions. In the meantime, he plans to hire a lawyer to answer the court on the frivolous appeal issue. “The last thing I want to do is take a frivolous and non-meritorious case,” he said. Still, Rossiello remains incredulous that he hasn’t received even costs, including the $150 filing fee, in the Dormeyer case. “There is an overall repugnancy of judges to be bothered with motions for attorney fees,” he said. Joining Posner in the decision were Judges Daniel A. Manion and Michael S. Kanne.

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