Dormeyer, Jennifer v. LaSalle Bank, N.A. ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 99-1089 and 99-3252
Jennifer Dormeyer,
Plaintiff-Appellant,
v.
Comerica Bank-Illinois, et al.,
Defendants-Appellees.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 96 C 4805--David H. Coar, Judge.
Argued February 11, 2000--Decided July 24, 2000
Before Posner, Chief Judge, and Manion and Kanne,
Circuit Judges.
Posner, Chief Judge. The plaintiff, who worked as
a teller for the defendant bank between April
1994 and February 1996, brought suit against the
bank and related entities unnecessary to discuss
charging violations of the Family and Medical
Leave Act, 29 U.S.C. sec.sec. 2601 et seq., the
Pregnancy Discrimination Act, 42 U.S.C. sec.
2000e(k), and the Fair Labor Standards Act, 29
U.S.C. sec.sec. 206(a), 207(a), 215(a)(2). There
were other charges as well, but they have fallen
by the wayside. The defendant made an offer of
judgment of $1,152 on the FLSA count (which
sought overtime pay), and this was accepted. The
district court granted summary judgment for the
defendant on the other counts. The plaintiff then
sought almost $35,000 in costs and attorneys’
fees under the FLSA, which the judge cut down to
$6,216. The appeals challenge both the dismissal
of the FMLA and PDA counts and the reduction in
the amount of fees awarded for the successful
prosecution of the FLSA count.
The plaintiff had a problem of absenteeism. The
bank required her to attend a "coaching session"
to help her overcome the problem. That was in
August 1995. The problem continued and on January
26, 1996, roughly three weeks after she had
become pregnant, she received a written warning
about her excessive absences. She received a
second such warning on February 12 and a third on
February 21. All to no avail; she was AWOL again
on February 23 and 24 and was fired two days
later.
Of a total of 20 unexcused absences between
March 6, 1995, and the date of her discharge,
nine occurred after she became pregnant, and she
attributes these absences to severe morning
sickness, although there is little medical
substantiation of this attribution. On January 8,
1996, shortly after she became pregnant, she
requested leave under the FMLA on the basis of
her morning sickness. The defendant did not
respond to the request, and this nonresponse is
the basis of her FMLA claim. Although it is
conceded that she did not satisfy the requirement
for eligibility for leave under the Act that she
have worked at least 1,250 hours during the 12
months preceding the day on which she wanted to
take family leave, 29 U.S.C. sec. 2611(2)(A)(ii)
(it is unclear by how much she fell short), she
appeals to a regulation of the Department of
Labor that waives statutory eligibility in cases
in which the employer fails to respond promptly
to a request for family leave. The regulation
provides, so far as bears on this case, 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." 29 C.F.R.
sec. 825.110(d).
As several district courts have found (there are
no appellate decisions), the regulation is
invalid. E.g., McQuain v. Ebner Furnaces, Inc.,
55 F. Supp. 2d 763, 773-76 (N.D. Ohio 1999);
Seaman v. Downtown Partnership of Baltimore,
Inc., 991 F. Supp. 751, 754 (D. Md. 1998); Wolke
v. Dreadnought Marine, Inc., 954 F. Supp. 1133,
1135-38 (E.D. Va. 1997). 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, 29 U.S.C. sec.
2654, it has no authority to change the Act. But
that is what the regulation tries to do. It does
not address an interpretive issue that the
statute leaves open, and so the principle of the
Chevron case is not in play. E.g., Chevron
U.S.A., Inc. v. Natural Resources Defense
Council, 467 U.S. 837, 842-44 (1984); INS v.
Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999);
NLRB. v. GranCare, Inc., 170 F.3d 662, 666 (7th
Cir. 1999) (en banc); City of Chicago v. FCC, 199
F.3d 424, 428 (7th Cir. 1999). The statutory text
is perfectly clear and covers the issue. The
right of family leave is conferred only on
employees who have worked at least 1,250 hours in
the previous 12 months. Yet under the regulation
a worker who had worked 8 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.
The last point is critical. If detrimental
reliance were required, the regulation could be
understood as creating a right of estoppel
(specifically a right to estop, that is, forbid,
the employer to raise a defense of ineligibility
for the statutory benefits), and such a right
might be thought both consistent with the statute
and a reasonable method of implementing it, and
so within the Department’s rulemaking powers.
Like other equitable doctrines, the doctrine of
estoppel is invoked in a variety of statutory
contexts without reference to particular
statutory language. True, if the statute creates
or excludes a right to plead estoppel, the
creative power of the administering court or
agency is suspended. But there is nothing in the
Family Leave and Medical Act that relates to
misleading eligibility notices or absences of
notice; so far as notice is concerned, the
statute merely requires the employer to post a
general summary of the Act in the workplace. 26
U.S.C. sec. 2619. We do not read this provision
to exclude the application of the doctrine of an
estoppel in an appropriate case. And so an
employer who by his silence misled an employee
concerning the employee’s entitlement to family
leave might, if the employee reasonably relied
and was harmed as a result, be estopped to plead
the defense of ineligibility to the employee’s
claim of entitlement to family leave. See, e.g.,
Rager v. Dade Behring, Inc., 210 F.3d 776, 778-79
(7th Cir. 2000); Athmer v. C.E.I. Equipment Co.,
121 F.3d 294, 296-97 (7th Cir. 1997); General
Electric Capital Corp. v. Armadora, S.A., 37 F.3d
41, 45 (2d Cir. 1994).
The plaintiff has made no effort to establish
the elements of an estoppel, however, and anyway
the regulation on which she relies to avoid the
1,250-hours requirement is not limited to
circumstances in which an employer might be
estopped to deny eligibility because his conduct
had induced detrimental reliance by the employee.
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. The challenged
regulation is not only unauthorized; it is
unreasonable.
We move on to the plaintiff’s claim under the
Pregnancy Discrimination Act. The Act forbids
discrimination against an employee on account of
her being pregnant, and of such discrimination
the only evidence in this case, evidence that
falls short of making out a case that can
withstand summary judgment for the employer, is
some ugly comments about the plaintiff’s
pregnancy made by an employee who was not in the
chain of command of the plaintiff and did not (so
far as appears) influence in any way the decision
to fire her. "The fact that someone who is not
involved in the employment decision of which the
plaintiff complains expressed discriminatory
feelings is not evidence that the decision had a
discriminatory motivation." Hunt v. City of
Markham, No. 99-1331, 2000 WL 968540, at *2 (7th
Cir. July 11, 2000) (emphasis in original).
Compare Sheehan v. Donlen Corp., 173 F.3d 1039,
1044-45 (7th Cir. 1999).
The plaintiff was fired because of her
absenteeism, not because of her pregnancy. There
was a relation, insofar as some of the absences
may have been due to morning sickness, which was,
of course, a consequence of her pregnancy. But
the Pregnancy Discrimination Act does not protect
a pregnant employee from being discharged for
being absent from work even if her absence is due
to pregnancy or to complications of pregnancy,
unless the absences of nonpregnant employees are
overlooked. Troupe v. May Dept. Stores Co., 20
F.3d 734, 738-39 (7th Cir. 1994); Marshall v.
American Hospital Ass’n, 157 F.3d 520, 526 (7th
Cir. 1998); Armindo v. Padlocker, Inc., 209 F.3d
1319 (11th Cir. 2000) (per curiam); In re
Carnegie Center Associates, 129 F.3d 290, 296-97
(3d Cir. 1997); Fisher v. Vassar College, 70 F.3d
1420, 1448 (1995) reheard en banc on other
grounds, 114 F.3d 1332 (2d Cir. 1997). And of
that there is no evidence.
It might seem that a company’s policy on
absenteeism might be attacked from the direction
of disparate impact, a permissible theory of
liability under the Pregnancy Discrimination Act,
e.g., Troupe v. May Dept. Stores Co., supra, 20
F.3d at 738; Scherr v. Woodland School Community
Consolidated Dist. No. 50, 867 F.2d 974, 979 (7th
Cir. 1988); Lang v. Star Herald, 107 F.3d 1308,
1314 (8th Cir. 1997); Garcia v. Woman’s Hospital
of Texas, 97 F.3d 810, 813 (5th Cir. 1996), if it
could be shown that the policy weighed more
heavily on pregnant employees than on nonpregnant
ones and that it was not justified by compelling
considerations of business need. But such an
argument would not succeed. The concept of
disparate impact was developed and is intended
for cases in which employers impose eligibility
requirements that are not really necessary for
the job for which the applicant is being hired,
such as requiring that applicants for a job as a
dishwasher have a high school education. The
statute makes this clear, see 42 U.S.C. sec.
2000e-2(k)(1)(A)(i) ("an unlawful employment
practice based on disparate impact is established
under this subchapter only if a complaining party
demonstrates that a respondent uses a particular
employment practice that causes a disparate
impact on the basis of race, color, religion,
sex, or national origin and the respondent fails
to demonstrate that the challenged practice is
job related for the position in question and
consistent with business necessity"), as do the
cases interpreting it. See, e.g., Finnegan v.
Trans World Airlines, Inc., 967 F.2d 1161, 1164
(7th Cir. 1992) ("the concept of disparate impact
was developed for the purpose of identifying
situations where, through inertia or
insensitivity, companies were following policies
that gratuitously--needlessly--although not
necessarily deliberately, excluded black or
female workers from equal employment
opportunities"); Lanning v. Southeastern
Pennsylvania Transportation Authority, 181 F.3d
478, 489 (3d Cir. 1999) ("a discriminatory cutoff
score is impermissible unless shown to measure
the minimum qualifications necessary for
successful performance of the job in question").
The argument here is not that the employer has
adopted rules or practices that arbitrarily
exclude pregnant women, but that the employer
should be required to excuse pregnant employees
from having to satisfy the legitimate
requirements of their job. It is an argument for
subsidizing a class of workers, and the concept
of disparate impact does not stretch that far.
Troupe v. May Department Stores Co., supra, 20
F.3d at 738; Urbano v. Continental Airlines,
Inc., 138 F.3d 204, 207-08 (5th Cir. 1998);
Armstrong v. Flowers Hospital, Inc., 33 F.3d
1308, 1317 (11th Cir. 1994). Nor would pregnant
women, or women in general, benefit from such a
stretch. 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.
We turn to the plaintiff’s appeal from the award
of attorneys’ fees, which she contends was too
meager. Her appeal brief (there is no reply
brief) is a remarkable document. It is only five
pages long, of which the argument section
occupies not quite two pages entirely given over
to truisms and conclusions. The perfunctory
character of the appeal, which alone would
justify an affirmance, Kelly v. EPA, 203 F.3d
519, 522 (7th Cir. 2000); Jones Motor Co. v.
Holtkamp, Liese, Beckemeier & Childress, P.C.,
197 F.3d 1190, 1192 (7th Cir. 1999); JTC
Petroleum Co. v. Piasa Motor Fuels, Inc., 190
F.3d 775, 780-81 (7th Cir. 1999), is remarkable
rather than merely lamentable because of the
serious accusations made by the district judge
against the plaintiff’s attorney, Ernest T.
Rossiello, in support of the judge’s decision to
cut down the fees and costs sought by some 80
percent. Citing several previous judicial
opinions criticizing (in one case actually
sanctioning) Mr. Rossiello for his fee requests
or affirming stiff cuts in the requested fees,
Shea v. Galaxy Lumber & Const. Co., Ltd., No. 94
C 906, 1999 WL 138791, at *3 (N.D. Ill. Mar. 2,
1999) ("this case is not the first time a federal
district court has suspected a possible
manipulation or abuse of billing practices with
regard to Shea’s counsel [Rossiello] in a FLSA
case"); Herrejon v. Appetizers And, Inc., No. 97
C 5149, 1999 WL 116598, at *1 (N.D. Ill. Feb. 22,
1999); Campbell v. HSA Managed Care Systems,
Inc., No. 97 C 1622, 1998 WL 417505 (N.D. Ill.
July 21, 1998); Uphoff v. Elegant Bath, Ltd., 176
F.3d 399, 406-11 (7th Cir. 1999); Spegon v.
Catholic Bishop of Chicago, 175 F.3d 544 (7th
Cir. 1999), but missing still others (again
including one case in which he was actually
sanctioned), e.g., Connolly v. National School
Bus Service, Inc., 177 F.3d 593, 598 (7th Cir.
1999); Scott v. Sunrise Healthcare Corp., No. 95
C 1277, 1999 WL 787624, at *5 (N.D. Ill. Sep. 23,
1999) ("The fee petition in this case, seeking
$100,000 in fees and costs for a $600 recovery
is, to put in mildly, unreasonable and
irresponsible. The amount requested is absurd. No
effort has been made by plaintiff’s counsel to
segregate the fees attributable to the successful
FLSA claim"), the judge accused Rossiello, just
as the judge in Scott had done, of engaging in
the dishonest practice of joining to small valid
claims, here the plaintiff’s FLSA claim, large
invalid and even frivolous claims, and seeking a
large award of attorneys’ fees for services
ostensibly devoted to the small claim but
actually devoted to the large.
In his application for fees, Rossiello allocated
124 hours, constituting half the total time that
he and his associates put in on the plaintiff’s
entire case, to the FLSA claim, even though it
was a tiny claim which required little more than
the record of the days and hours worked by the
plaintiff and which the defendant did not resist.
The defendants had made an offer of judgment for
the full amount sought before trial, which the
plaintiff accepted. And before the offer was made
the parties had engaged in only the most limited
discovery on the claim, consisting of one request
for documents, a single interrogatory, and ten or
so minutes of deposition time. The judge was
rightly aghast at the allocation of half the
total lawyer time to the FLSA claim. A similar
problem attended Rossiello’s allocation of costs.
In his appeal brief, Rossiello (who signed the
brief) does not deny the judge’s accusations.
Although he complains without elaboration that
the judge should have allowed him a higher hourly
fee, he says nothing about the judge’s accusing
him of submitting what amounts to a fraudulent
claim of attorneys’ fees and of doing this,
moreover, in case after case. In these
circumstances of confession by silence to serious
charges of professional misconduct, we not only
affirm the district court’s order denying
Rossiello the fees and costs sought; we also
order him to show cause within 14 days of the
date of this order why he should not be
sanctioned for filing a frivolous appeal from the
district court’s fee order. Fed. R. App. P. 38;
Mars Steel Corp. v. Continental Bank N.A., 880
F.2d 928, 938 (7th Cir. 1989) (en banc); United
States v. Insurance Consultants of Knox, Inc.,
187 F.3d 755, 761-62 (7th Cir. 1999). In addition
we are referring the question of his improper and
possibly fraudulent billing practices to the
executive committee of the United States District
Court for the Northern District of Illinois to
consider whether to institute disciplinary
proceedings against him.
Affirmed.