Petition for Writ of Certiorari — Bellum v. PCE Constructors, Inc.

5

distance between work sites is clearly expressed throughout the

legislative history of the Family and Medical Leave Act. In

Public Law 103-3, Senate Report No. 103-3, dated January 27,

1993, the following can be found:

Under “Summary of the Bill,” it states:

Title I of S. 5, the Family and Medical Leave

Act of 1993, makes available to eligible

employees up to 12 weeks of unpaid leave per

year under particular circumstances that are

critical to the life of a family. . .

The act exempts small businesses and limits

coverage of private employers to employers who

employ 50 or more employees for each working

day duting 20 or more calendar weeks in the

current or preceding calendar year. To be

eligible for leave, an employee of a covered

employer must have been employed by the

employer for at least 12 months and must have

worked at least | ,250 hours during the 12-month

period proceeding the commencement of the

leave. The employer must, in addition, employ

at least 50 people within a 75-mile radius of the

employee's work site. P.L. 103-3, page 4; S.

REP. No. 103-3, pages 1-2. (emphasis added)

Under “Definitions,” it states:

The term “eligible employee" is further defined

in section 101(2)(B) to exclude any employee

employed at a worksite with less than 50

employees if the total number of employees

employed by the employer within 75 miles of

6

the worksite is less than 50. In aggregating the

number of employees at the worksite and within

the 75 mile radius, all employees of the

employer, not just eligible employees, are to be -

counted. P.L. 103-3, page 25: S. REP. No. 103-

3, page 23. (emphasis added)

Under “Regulatory Impact Statement,” it states:

S. 5 would regulate every private and public

sector employer with 50 or more employees

within a 75-mile radius. This number is

estimated as approximately 293,000

establishments. Employees who have worked at

least one year and 1250 hours for that employer

would be eligible for leave under the Act. This

number is estimated as approximately 44

million employees. Those not regulated would

be all emplovers with fewer than 50 employees.

P.L. 103-3, page 44; S. REP. No. 103-3, page

42. (emphasis added)

Under “Section-By-Section Analysis,” it states:

Section 101. Definitions

Eligible employee-means any employee as

defined in section 3(e) of the FLSA who is

employed by the employer with respect to whom

benefits are sought for not less than 12 months

and not less than 1250 hours over the previous

12 month period, except that such term does not

include Federal officers or employees covered

under Title II of the Act.

7

Employer-means any person engaged in

commerce who employs 50 or more employees

within a 75-mile radius during 20 or more

calendar weeks in the current or preceding

calendar year; any successor in interest of an

employer; and any public agency defined under

section 3(x) of the FLSA. P.L. 103-3, page 45;

S. REP. No. 103-3, page 43. (emphasis added)

Every piece of legislative history drafted on the FMLA has

included “radius” as the measure of distance between work

sites. See Senate Report No. 103-3, January 27, 1993, pages 1-

2, 23, 42, 43; Senate Report No. 102-68, May 30, 1991, pages

58, 59-60; House Report No. 103-8(I), February 2, 1993, page

35; House Report No. 102-135(1), June 27, 1991, page 37;

_ House Report No. 101-28(1), Apr. 13, 1989, page 24. In fact,

the 1993 and final Senate Report includes the term “radius” as

the unit of measure more than any other report. The cost

projections, estimates, and impact statements done by the

General Accounting Office and the Congressional Budget

Office have used “radius” as tie measure of distance between

work sites. Congressional intent is clear and unambiguous, and

the District Court and the Fifth Circuit should have struck down

29 C.F.R. §825.111(b).'

'The Fifth Circuit fails to acknowledge the legislative

history cited by Mr. Bellum and squarely on point, yet cites

indirect legislative history which is clearly contrary to

Congress’ intent to use “radius” as the measure of distance.

(See App. 7 citing the 1991 FMLA House Report)

8

2. The Fifth Circuit’s Opinion Allows an Impermissible

and Unauthorized Regulation to Stand

Secondly, under the second prong of the Chevron, the

regulation cannot stand if it is not a permissible construction of

the statute. As addressed above, Congressional intent could not

be any clearer. The measure of distance between work sites is

“radius.” The regulation is not a permissible construction of the

Statute as it is manifestly contrary to the statutory framework of

the act.

Also, as reiterated by the United States Supreme Court

in Ragsdale v. Wolverine World Wide, 535 U.S. 81, 122 S. Ct.

1155, 152 L. Ed. 2d 167 (2002), the Secretary of Labor was

granted limited authority to prescribe regulations concerning the

FMLA. The authority granted to the Secretary of Labor did not

include the right to alter the coverage of the leave entitlement

provided by Congress. In Ragsdale, at 96, this Court held that

no further analysis was needed because the FMLA regulation

[in that case §825.700(a)}:

effects an impermissible alteration of the

statutory framework and cannot be within the

Secretary's power to issue regulations "necessary

to carry out” the Act under § 2654. In so holding

we do not decide whether the notice and

designation requirements are themselves valid

or whether other means of enforcing them might

be consistent with the statute. Whatever the

bounds of the Secretary's discretion on this

matter, they were exceeded here.

Pursuant to 29 U.S.C.S. § 2654, the Secretary of Labor

was only granted authority to “prescribe such regulations as are

necessary to carry out” the Act. In the case at hand, the

9

Secretary of Labor has again exceeded the authority granted to

it by Congress by reducing the coverage of the FMLA. The

regulation should be struck down just as this Court struck down

the FMLA regulation in Ragsdale.

3. The Reasoning for the Fifth Circuit Opinion is Flawed

and Fails to Apply Existing Law

The “geographic limitation of a 75-mile radius that

applies to the aggregation of employees at different facilities”

as it was called in the 1989 and 1991 House Reports (at pages

24 and 37 respectively) was the result of years of negotiating by

Congress. As similarly addressed in Ragsdale v. Wolverine

World Wide, 535 U.S. 81, 93-94 (2002), agencies must respect

the compromises made by Congress:

Like any key term in an important piece of

legislation, the 12-week [FMLA leave] figure

was the result of compromise between groups

with marked but divergent interests in the

contested provision. Employers wanted fewer

weeks; employees wanted more. See H.R. Rep.

No. 102-135, pt. 1, p. 37 (1991). Congress

resolved the conflict by choosing a middle

ground, a period considered long enough to

serve "the needs of families” but not so long that

it would upset “the legitimate interests of

employers.” § 2601(b).

Courts and agencies must respect and give effect

to these sorts of compromises. (citing Mohasco

Corp. v. Silver, 447 U.S. 807, 818-819, 65 L.

Ed. 2d 532, 100 S. C+. 2486 (1980).

10

Members of Congress also battled and negotiated over the

number of employees required to meet the small employer

exception which was increased to 50 and the number of hours

an employee had to work in the preceding !2 month period in

order to be eligible for the entitlement which was increased to

1,250. House Report No. 103-8(1), February 2, 1993, pages 20-

21. The geographic limitation for the aggregation of employees

is a significant designation, and Congress clearly chose “radius”

as the method to measure distance within 75 miles. This

decision must be respected and applied.

In the Fifth Circuit’s opinion on App. 6, the Court

suggests a hypothetical which is flawed and focuses on

potential inconvenience for a hypothetical company. First, no

rational company would build a work site 25 miles away which

could be reached only by traveling 120 miles without knowing

that inconvenience would follow for all business purposes

including labor. Second, there is no requirement that any

employee travel between work-sites to replace a worker on

leave. As in most cases, work is reallocated among local

employees and/or a temporary worker is hired to fill in the gaps.

Likewise, in the case at hand, no employee traveled between

work sites when Mr. Bellum took leave. Despite being entitled

to return to his position of employment or a similar position,

Mr. Bellum was replaced by a former employee.

Furthermore, the regulation lacks uniformity and

simplicity and further, is arbitrary to the extent that it allows the

use of “radius” only if no surface method is available instead of

exempting such an employer. It is quite a undertaking to travel

every country road and highway ina 75 mile radius looking for

a road trail of 75 miles or less. In fact, the Fifth Circuit

acknowledges that in an earlier unrelated opinion that the Fifth

Circuit “specifically rejected the use of road miles because that

standard lacks uniformity and simplicity.” See App. 10, n. 7

1!

(citing Sprow v. Hartford Ins. Co., 594 F.2d 412 (5® Cir.

1979)). In Sprow, the Fifth Circuit addressed the question as to

which method a court applies in measuring distance under Rule

4 of the Federal Rules of Civil Procedure. Rule 4 states that

service is effective to establish jurisdiction if the person is

served “within 100 miles” from the courthouse where the

summons issues. Rule 4 is silent as to the method to the

measure distance and does not state “radius” or “road miles.”

The Court held that the “simplest and most proper method is the

straight lines (sic) or ‘as the crow flies’ measure of air miles.”

Sprow, at 417. The Court also held that radius is a “uniform

standard, offering more certainty than a measure based on road

miles, which will continually fluctuate as new and different

routes are constructed.” /d.

As previously stated by Mr. Bellum, this matter involves

a case of first impression nationally on the FMLA. Though no

case can be found directly addressing the issue of “radius”

versus “road miles” as the method to measure distance between

work sites, it is important to note that more than twenty Courts

around the United States consistently used “radius” as the

measure of distance. See Harbert v. Healthcare Services

Group, Inc., 391 F.3d 1140, 1149-50 (10" Cir. Colo.

2004)(quoting House Report No. 102-135()), at 37 (1991)

“there is a geographic limitation of a 75-mile radius that

applies to the aggregation of employees at different facilities.”);

Morrison v. Magic Carpet Aviation, 383 F.3d 1253 (11th Cir.

Fla. 2004) (“in order for statute [FMLA] to app.y, the

employer(s) at issue must have at least 50 employees within a

75 mile radius of the work site.”); Moreau v. Air France, 343

F.3d 1179 (9th Cir. Cal. 2003); Thomas v. Pearle Vision, Inc.,

251 F.3d 1132 (7th Cir. Ill. 2001); Nedzvekas v. LTV

Copperweld, 356 F.Supp. 2d (N.D. Ill. 2005); Fauntleroy v.

Rainbow Marketers, 888 So.2d 1045 (La. App. 2004);

12

Nordquist v. City Finance Co., 173 F.Supp.2d 537 (N.D.Miss.

2001 (holding that plaintiff was not eligible for FMLA leave

because there were less than 50 employees within a seventy-five

mile radius); Syivester v. Dead River Co., 260 F.Supp.2d 181,

186 (D.Me. 2003)stating in fn7 that the record does not

contain number of employees within a seventy-five mile radius

of work site)(citing §2611(2)(B)(ii)), Paleologos v. Rehab

Consultants, Inc., 990 F Supp. 1460 (N.D.Ga. 1998) (holding

that plaintiff must demonstrate that employer employed at least

50 employees within a 75-mile radius); Rollins v. Wilson

County Government, 967 F.Supp. 990 (M.D.Tenn.

1997) holding that an “eligible employee” must be employed at

worksite with at least 50 employees within a 75-mile radius);

Figueira v. Black Entertainment Television, Inc., 944 F Supp.

299 (S.D.N.Y. 1996)(holding that an “eligible employee” must

work for employer with 50 employees within a 75-mile radius),

Rich v. Delta Air Lines, Inc., 921 F.Supp. 767 (N.D.Ga.

1996)(holding that an “eligible employee” must be employed at

worksite with at least 50 employees within a 75-mile radius);

Cousin v. Sofono, Inc., 238 F Supp.2d 357 (D.Mass. 2003);

Harbert v. Healthcare Services Group, Inc., 173 F Supp.2d

1101 (D.Colo. 2001); Gazda v. Pioneer Chior Alkali Co., Inc.,

10 F.Supp.2d 656 (S.D.Tex. 1997); Harvell v. North Carolina

Ass'n of Educators, Inc., 5\0 $.E.2d 403 (N.C.App. 1999);

Smith v. University of Chicago Hospitals, 2003 WL 22757754

(N.D.IIl. 2003 (holding “the FMLA only applies to employers

with fifty or more employees within a seventy-five mile

radius.”); Dinkins v. Varsity Contractors, Inc., 2005 WL

599979 (N.D. fil. 2005); Knight v. Industrial Distribution

Group, Inc., 2004 WL 2300477 (D. N.H. 2004); Grimsley v.

Fiesta Salons, Inc., 2003 WL 117985 (E.D.Mich. 2003)

(holding “the Court finds that the defendant employed less than

50 employees within a 75-mile radius during the relevant time

period, and the plaintiff was therefore not eligible to claim

13

FMLA leave.”); Lincoln v. Sears, Roebuck and Co., 2002 WL

31108204 (D.Minn. 2002)(defendant argued that there were not

50 employees within a 75-mile radius); Smallberger v. Federal

Realty Investment Trust, 1999 WL 126919 (E.D.Pa.

1999\(defendant argued that there were not 50 employees

within a 75-mile radius); Domnick v. Ver Halen, Inc., 2003 WL

23095738 (W.D.Wis. 2003); Collinsworth v.

Earthlink/Onemain, Inc., 2003 WL 22916461 (D.Kan. 2003);

Bliss v. Jennifer Convertibles, Inc., 2003 WL 22239655

(N.D.Ill. 2003); Gonzalez-Wiley v. Tessa Complete Health

Care, Inc., et al., 2002 WL 985564 (D.Or. 2002). Excluding

the District Court and Fifth Circuit in the case at hand, not a

single FMLA opinion has mentioned “surface” or “road” miles.

Furthermore, it is evident that the Secretary of Labor

knew the correct measure of distance to be “radius” but acted

on its own to reduce the coverage of the FMLA, contrary to the

intent of Congress. In the preamble to the regulation in

question, the Department of Labor acknowledged that its own

regulations were wniten to include the term “radius” uptil it

revised said regulations upon the request ofa lobbyist group. 60

F.R. 2180, 2187 (1995).

14

CONCLUSION

For the above and foregoing reasons, Petitioner

respectfully requests that this Court grant the petition for writ

of certiorari.

Respectfully submitted,

C. ERIC MALOUF

Cor~sel of Reco

MICHAEL .. MALOU

MALOUF & MALOUF

501 E. CAPITOL STREET

JACKSON, MS 39201

(601) 948-4320

, IR.

Attorneys for Petitioner

Date: September 15, 2005

App. |

APF SNDIX

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-60409

LARRY G. BELLUM,

Plaintiff-Appellant,

versus

PCE CONSTRUCTORS INC.,

Defendant-Appellee

Appeal from the United States District Court

for the Southern District of Mississippi

Before GARWOOD, JONES and STEWART, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiff-appellant Larry G. Bellum appeals the decision

of the district court granting summary judgment to

defendant-appellee PCE Constructors, Inc. (PCE) on Bellum's

federal claim under the Family and Medical Leave Act

(FMLA), 29 U.S.C. § 2601 et seq., and on his pendent

Mississippi law claims for both the intentional and negligent

infliction of emotional distress. We affirm.

Facts and Proceedings Below

PCE is in the construction industry and does work

App. 2

primarily on a project-by-project basis.' Its principal place of

business is Baton Rouge, Louisiana, though it takes on projects

across several southern states. During the time giving rise to the

events in this case, PCE was building a facility for Fabricated

Pipe, Inc (FPI) in Fernwood, Mississippi. PCE was also

involved in helping FPI establish its pipe fabrication business.

PCE hired Bellum, who had worked for PCE on a

contract-basis before, on December 12, 1999 to manage a

particular project at the FP! site in Fernwood. PCE had a staff

of 14 at its headquarters in Baton Rouge and 4] at the FPI site.

Bellum testified in his deposition that he drove each day

between his home in Baton Rouge and Fernwood, a round-trip

of about 190 miles. The distance between PCE’s headquarters

and FPI is between 66.5 and 69.5 linear miles but 88.5 miles

over public roadways.’

' PCE argued in the district court that it is not a

proper party under Rule |7 of the Federal Rules of Civil

Procedure because it is not the successor to Constructors,

Inc., which actually employed Bellum during the relevant

period. The district court noted in its summary judgment

order that it did not find it necessary to reach this issue in

resolving the case in PCE’s favor. In its brief before us, PCE

noted that it was not going to address the proper party

argument but asks us not to construe this as a waiver of the

objection. Like the district court, we too are able to resolve

the questions before us in PCE’s favor, so the proper party

issue is moot. Accordingly, for the purposes of appeal, we

assume, arguendo, that PCE was Bellum’s employer, and

hence refer to it as such.

? In his memorandum in opposition to summary

judgment, Bellum submitted several exhibits measuring the

App. 3

On December 24, 2000, Bellum told his supervisor,

Charles Gibson, that he was taking leave from work to have

open-heart surgery. Bellum’s last day was December 26, 2000.

Bellum contends that while he was on leave for his heart

surgery, Gibson repeatedly told both him and his wife that a job

was waiting for him at the FP! site. Following his recovery

from heart surgery, Bellum visited the FPI site on March 1,

2001 to investigate returning to work. Gibson apparently told

him there was no longer any work for him because Bellum’s

project was completed in his absence. The two remained in

touch over the next two weeks discussing work possibilities, but

Bellum was formally terminated on March 16, 2001 without

ever having r>turned to work.

On March 3, 2003, Bellum filed the instant suit in the

district court seeking relief under the FMLA and for state law

claims of emotional distress. On April 5, 2004, the district

court granted summary judgment to PCE on the ground that

Bellum was not an “eligible employee” under the FMLA. The

district court also concluded that, absent a duty under the

FMLA to rehire Bellum, PCE was free not to rehire him

because Mississippi is an employment at-will state. It follows

linear distance by various scientific methods. PCE stated that

it calculated the distance over public roads using the popular

website www.mapquest.com. In his brief on appeal, Bellum

argues that the driving distance between PCE’s headquarters

and the FPI worksite is greater than 75 miles but less than 80.

We presume that Bellum is measuring the shortest possible

distance over public roads whereas PCE is measuring the

distance using the interstate high ways. In any case, Bellum

does not dispute that the shortest possible distance over the

public roadways exceeds 75 miles.

App. 4

from this, the district court reasoned, that Bellum could not

succeed on his claim that he suffered actionable emotional

distress when PCE chose not to rehire him. It is from this

disposition that Bellum now appeals.

Discussion

A. Standard of Review

We review agrant of summary judgment under the same

standard applied by the district court. Faris v. Williams WPC-I.

Inc., 332 F.3d 316, 319 (Sth Cir. 2003). We examine questions

of law de novo and construe disputed material facts in favor of

the non-movant. /d.

B. The FMLA

The FMLA provides, inter alia, an “eligible employee”

with “a total of 12 workweeks of leave during any 12-month

period . . . [because of a serious health condition{.]” 29 U.S.C.

§ 2612(a)(1)(D). The parties do not dispute that Bellum’s heart

problems qualify as a “serious health condition.” What they do

dispute, however, is whether Bellum is an “eligible employee.”

PCE maintains that Bellum falls within one of two enumerated

exceptions to the definition of eligible employee:

“any employee of an employer who is employed

at a worksite at which such employer employs

less than 50 employees if the total number of

employees employed by the employer within 75

miles of that worksite is less than 50.”

29 U.S.C. § 2611(2)(B)(ii). This exception applies, PCE

contends, because its headquarters, as measured over public

App. 5

roads, is more than seventy-five miles from the FPI worksite.’

Bellum counters that the exception does not apply because the

linear distance, i.e. “as the crow flies,” between FP! and the

Baton Rouge headquarters is less than 70 miles.

The district court resolved this controversy by

consulting 29 C.F.R. § 825.111(b), which states that the

“75-mile distance is measured by surface miles, using surface

transportation over public streets, roads, highways and

waterways, by the shortest route from the facility where the

eligible employee needing leave 1s employed.” The regulation

goes on to provide that the 75-mile distance should only be

measured as the crow flies when there is no “available surface

transportation between worksites.” Jd.‘ The district court

granted summary judgment to PCE because, under the method

of measurement set forth in the regulation, Bellum was not an

FMLA-eligible employee. Because the FMLA speaks simply

of miles, not “surface miles,” Bellum urges us to strike down 29

C.F.R. § 825.111(b) as manifestly contrary to the plain language

of 29 U.S.C. § 2611(2)(BYii).

We review federal regulations of the sort at issue here

under the familiar Chevron doctrine. If a statute is

unambiguous, then the statute prevails over an inconsistent

regulation. Chevron U.S.A., Inc. v. Natural Resources Defense

* The parties do not dispute that PCE employed fewer

than 50 employees at the FP! worksite but more than 50 at the

FPI site and the Baton Rouge headquarters combined.

* 29 U.S.C. § 2654 provides that “The Secretary of

Labor shall prescribe such regulations as are necessary to

carry out subchapter I [29 U.S.C. §§ 2611-2619] of this

chapter and this subchapter [29 U.S.C. §§ 2651-2654]. . .”.

App. 6

Council, Inc., 104 S. Ct. 2778, 2781 (1984) (“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.”) (citations omitted). To

ascertain whether the statute has spoken unambiguously to the

question at issue, we avail ourselves of the traditional means of

statutory interpretation, which include, see, e.g., Gen. Dynamics

Land Sys., Inc. v. Cline, 124 S. Ct. 1236, 1248-1249 (2004), the

text itself, its history, and its purpose. While the 75-mile

distance set forth in the statute is not inherently ambiguous, we

disagree with Beilum that the failure of Congress to stipulate a

method of measuring that distance implies that it should be

measured as the crow flies. To measure in linear terms as

Bellum suggests would regularly conduce to absurd results and

no canon of statutory construction requires us to honor plain

language when to do so would frustrate the unmistakable

purpose of the law. Hartford Underwriters Ins. Co. v. Union

Planters Bank, N.A., 120 S. Ct. 1942, 1947 (2000) (stating that

“when the statute's language is plain, the sole function of the

courts--at least where the disposition required by the text is not

absurd—is to enforce it according to its terms.") (internal

quotation marks omitted) (quoting United States v. Ron Pair

Enterprises, Inc., 109 S. Ct. 1026, 1030 (1989) (in turn quoting

Caminetti v. United States, 37 S. Ct. 194 (1917)), Harbert v.

Healthcare Services Group, Inc., 391 F.3d 1140, 1150-1151

(10" Cir. 2004) (stating, as one of its reasons for striking down

an FLMA regulation, that no deference is owed to an

interpretation of the statute that makes arbitrary distinctions).

The error in Bellum’s approach may be illustrated as

follows. Suppose that Company A had its headquarters along

the south rim of the Grand Canyon and a branch office on the

other side only 25 miles away as the crow flies. Suppose

further, quite plausibly, that the shortest distance between the

two by public roads is 120 miles. Now, imagine that Company

App. 7

B has its headquarters next to a straight-line interstate highway

and a branch office 80 miles away also right along the

interstate. Under Bellum’s reading of the statute, Company A

would be bound by the FMLA but Company B would not be.

Given that the purpose of the exception at 29 U.S.C.

§2611(2\B)(ii) is to relieve the burden of FMLA compliance

on companies with widely dispersed operations, it would make

no sense to construe the statute in a way that subjects Company

A but exempts Company B. See Moreau v. Air France, 356

F.3d 942, 945 (9th Cir. 2004) (concluding that the purpose of

the exception was “to accommodate employer concerns about

‘the difficulties that an employer might have in reassigning

workers to geographically separate facilities.’”) (quoting H.R.

Rep. No. 102-135, pt. 1, at 37,(1991))); 29 U.S.C. 2601(b) (1)

& (3) (“It is the purpose of this Act to balance the demands of

the workplace with the needs of families... in a manner that

accommodates the legitimate interests of employers.”); see also

Harbert, 391 F.3d at 1150 (making use ofa similar hypothetical’

to illustrate an arbitrary and capricious interpretation of the

FMLA). We conclude, therefore, that the decision of Congress

not to define a method of measuring the 75-mile distance

constitutes an implicit statutory gap the Secretary of Labor is

authorized to fill by 29 U.S.C. § 2654 (see note 4, supra).

When Congress has left an implicit gap such as this one,

the question before us is simply “whether the [regulation] is

based on a permissible construction of the statute.” Chevron,

104 S.Ct. at 2782. In answering this question, we consider only

*In concluding that Congress was silent on the

appropriate method of measuring the 75-mile distance, we

also reject Bellum’s argument that the Secretary of Labor was

without authority to issue 29 C.F.R. § 825.111(b).

App. 8

whether the regulation is arbitrary, capricious, or manifestly

contrary to the FMLA. /d. We may not substitute our own

preference for a reasonable alternative devised by the Secretary

of Labor. /d. “The Secretary’s judgment that a particular

regulation fits within” the statutory framework of the FMLA

“must be given considerable weight.” Ragsdale v. Wolverine

World Wide, Inc., 122 S. Ct. 1155, 1160 (2002). This is the

essence of what is known as Chevron deference.

We hold that 29 C.F.R. § 825.111(b) is entitled to

deference.° In our view, the regulation recognizes

*Bellum’s reliance on Ragsdale is misplaced. In

Ragsdale, the Supreme Court struck down an FMLA

regulation on the ground that it had no basis in the language

of the FMLA and, moreover, was fundamentally inconsistent

with the remedial nature of the statute. See, e.g., the

following from Ragsdale:

“Our deference to the Secretary, however, has

important limits: A regulation cannot stand if

it is ““arbitrary, capricious, or manifestly

contrary to the statute.”’ United States v.

O’Hagan, supra, at 673, 117 S.Ct. 2199

(quoting Chevron U.S.A. Inc. v. Natural

Resources Defense Council, Inc., 467 U.S.

837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694

(1984)).” (122 S.Ct. at 1160).

“We need not decide today whether this

conclusion [of the regulation] accords with the

text and structure of the FMLA, or whether

Congress has instead ‘spoken to the precise

question’ of notice, Chevron, supra, at 842,

App. 9

that the FMLA is concerned with the practical issue of how an

employer will be able to staff its business when an employee

takes leave. Given that the overwhelming majority of workers

in this country use surface transportation to get to work, the

regulation implements the statutory scheme in a way that is

consistent with the intent of Congress and germane to the

challenges employers face in complying with the FMLA. The

Secretary’s approach has the additional advantage of avoiding

104 S.Ct. 2778, and so foreclosed the notice

regulations. Even assuming the additional

notice requirement is valid, the categorical

penalty the Secretary imposes for its breach is

contrary to the Act’s remedial design.” (122

S.Ct. at 1161).

In this case, on the other hand, Congress was silent as

to the method of measuring the 75-mile distance and the

regulation promulgated by the Secretary of Labor advances,

rather than impairs, the FMLA’s remedial purpose. Nor is

the regulation contrary to the design of the statute.

We also reject Bellum’s contention that his method of

linear measurement has been widely adopted by the federal

courts. Bellum bases this assertion on the fact that numerous

cases have used the word “radius,” which by definition is a

Straight line from the center of a circle to anywhere along its

edge, when discussing the 75-mile distance described by 29

U.S.C. §2611(2)(B) (11). None of the twenty cases Bellum

cites, however, concemed the question at issue here and it is

evident that the courts were using the term “radius” in a

colloquial, rather than technical, sense.

App. 10

the sort of absurd result we hypothesized might prevail under

Bellum’s reading of the statute.’

C. Emotional Distress

Bellum also appeals the district court’s grant of

summary judgment on his pendent state claims for the

intentional and negligent infliction of emotional distress.

Bellum’s claim under Mississippi common law for the

intentional infliction of emotional distress is subject to the

one-year statute of limitations set forth at Miss. Code Ann.

§15-1-35 (Rev. 1995). King v. Otasco, Inc., 861 F.2d 438, 442

(5th Cir. 1988) (making an Erie “guess” that the intentional

” Several weeks after oral argument and in response to

a question put to counsel by the panel about how distances

are measured for the purposes of service of process, Bellum

brought to our attention Sprow v. Hartford Ins. Co., 594 F.2d

412 (5" Cir. 1979). In Sprow, we concluded that measuring

“as the crow flies” is the proper method for measuring the

100-mile distance for service of process under what was then

FED. R. CIV. P. 4(f) and is now FED. R. CIV. P. 4(k)(1)(B).

594 F.2d at 417-418. In coming to this conclusion, we

specifically rejected the use of road miles because that

standard lacks uniformity and simplicity. /d. Even assuming

arguendo that Rule 4(k)(1 )(B) and 29 U.S.C. §2611(2)(B)(ii)

are similar enough to warrant comparison, it is not necessary

for us to address whether the considerations discussed in

Sprow would lead to a better rule than the one devised by the

Secretary of Labor because, in a Chevron case like this, the

only question for us is whether the Secretary’s construction

of the statute is permissible, not the best. Having found that

it is permissible, our inquiry is at an end.

App. Il

infliction of emotional distress falls within the one-year statute

of limitations for intentional acts; this “guess” adopted with

respect to false arrest by City of Mound Bayou v. Johnson, 562

So. 2d 1212, 1218 (Miss. 1990)); Hervey v. Metlife Gen. Ins.

Corp. Agency Sys. of Miss., Inc., 154 F. Supp. 2d 909, 914-915

(S.D. Miss. 2001) (surveying relevant federal and state

precedent in concluding that the one-year period still applies to

the intentional infliction of emotional distress). His cause of

action accrued no later than March 16, 2001 when he was

terminated as part of a reduction in force at FPI. Bellum did not

file his complaint until March 3, 2003, nearly two years later.

His claim, therefore, is barred.

Relying on McCorkle v. McCorkle, 811 So.2d 258,

263-264 (Miss. App. 2001), Bellum contends that the running

of the limitations period was tolled under Mississippi’s

continuing tort doctrine because the effects of his termination

persist into the present. This is Without merit and reflects a

fundamental misunderstanding of the continuing tort doctrine.

Under Mississippi law, acts that take place outside the one-year

statute of limitations are actionable if, and only if, they are

directly connected to an ongoing pattern of tortious conduct and

at least one tortious act occurred within the one-year limitations

period. /d. at 264. The continuing tort doctrine does not apply

when a plaintiff like Bellum simply alleges that “harm

reverberates from one wrongful act or omission.” Smith v.

Franklin Custodian Funds, Inc., 726 So.2d 144, 149 (Miss.

1998).

We similarly find Bellum’s claim for the negligent

infliction of emotional distress to be without merit.

Employment in Mississippi is at-will. Levens v.

Campbell, 733 So.2d 753, 760 (Miss. 1999). The only

exceptions to this general rule are for breach of contract or

App. 12

unlawful intentional acts such as terminating someone on

account of his or her race. /d. (stating that “absent an

employment contract expressly providing to the contrary, an

employee may be discharged at the employer's will for good

reason, bad reason, or no reason at all, excepting reasons only

declared legally impermissible.”). Bellum in effect is asking

this panel to extend Mississippi common law by developing an

exception to the at-will rule based on mere negligence.

Furthermore, in every case in which the Mississippi Supreme

Court has permitted a plaintiff to recover for the negligent

infliction of emotional distress, the defendant has committed

some independently wrongful act or breached some other duty

imposed by law or by contract. For example, in Universal Life

Ins. Co. v. Veasley, 610 So.2d 290, 295 (Miss. 1992), the

policyholder prevailed on her breach of contract claim but was

not entitled to punitive damages because the insurer did not act

intentionally in outright bad-faith. The court nevertheless

allowed her to recover for her emotional damages on the theory

that it was simply unfair, though not independently tortious, for

the insurer to breach the contract but not be held liable for all of

the reasonably foreseeable extra-contractual consequences of its

conduct such as emotional harms. See Southwest Miss. Reg'l

Med. Ctr. v. Lawrence, 684 So.2d 1257, 1269 (Miss. 1996)

(allowing emotional damages in a successful breach of contract

suit); see also First Nat'l Bank v. Langley, 314 So.2d 324, 329

(Miss. 1975) (permitting recovery for emotional distress

without a physical impact for negligent breach of duty owed by

bank to agent of its customer to receive and properly credit

customer’s funds placed by agent in bank’s night depository and

to exercise reasonable care in examining depository for missing

deposit). Breach of some other duty imposed by law or

contract, in other words, has always been shown where the

Mississippi Supreme Court has allowed recovery for the mere

negligent infliction of emotional distress. Bellum, however, has

not established that PCE breached a contract, or breached any

App. 13

duty imposed on it by law, or unlawfully discriminated against

Bellum under the FMLA."

This court will not use its diversity jurisdiction to

“expand state law beyond its presently existing boundaries.”

Rubinstein v. Collins, 20 F.3d 160, 172 (Sth Cir. 1994). That is

solely the prerogative of the courts of Mississippi. Jackson v.

Johns-Manville Sales Corp., 78\ F.2d 394, 397 (Sth Cir.) (en

banc), cert. denied, 478 U.S. 1022 (1986).

Bellum, therefore, is not entitled to recover under the

facts of this case for the negligent infliction of emotional

distress.

Conclusion

For the foregoing reasons, the judgment of the district

court is

AFFIRMED.

* Indeed, Bellum has not shown that PCE treated him

in any manner that can fairly be described as truly extreme

and outrageous. On the contrary, the record indicates that

Gibson, Bellum’s former boss, stayed in touch with Bellum

for a few weeks after Bellum was physically able to return to

work but there was no work for him at PCE.

App. 14

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-60409

LARRY G. BELLUM,

Plaintiff-Appellant

versus

PCE CONSTRUCTORS INC

Defendant-Appellee

Appeal from the United States District Court for the

Southern District of Mississippi, Jackson

ON PETITION FOR REHEARING EN BANC

(Opinion 4/25/05, 5 Cir., : F.3d )

Before GARWOOD, JONES and STEWART, Circuit Judges.

PER CURIAM:

(/) Treating the Petition for Rehearing En Banc as a Petition

for Panel Rehearing, the Petition for Panel Rehearing is

DENIED. No member of the panel nor judge in regular active

service of the court having requested that the court be polled on

Rehearing En Banc (FED. R. APP. P. and 5" CIR. R. 35), the

Petition for Rehearing En Banc is DENIED.

App. 15

( ) Treating the Petition for Rehearing En Banc as a Petition

for Panel Rehearing, the Petition for Panel Rehearing is

DENIED. The court having been polled at the request of one of

the members of the court and a majority of the judges who are

in regular active service not having voted in favor (FED. R.

APP. P. and 5" CIR. R. 35), the Petition for Rehearing En Banc

is DENIED.

ENTERED FOR THE COURT:

signed by Will Garwood _

United States Circuit Judge

REHG-6a

L Supreme Court, US.

r-iren

05-640 SEP 15 2005

No g IGE OFTHE CLERK

IN THE

Supreme Court of the United States

LARRY G. BELLUM,

“Petitioner,

Vv.

PCE CONSTRUCTORS, INC.,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

SUPPLEMENTAL APPENDIX

C. ERIC MALOUF

Counsel of Record

MICHAEL J. MALOUF, JR.

MALOUF & MALOUF

501 E. CAPITOL STREET

JACKSON, MS 39201

(601) 948-4320

Attorneys for Petitioner

App. 16

TABLE OF CONTENTS

District Court Opinion and Order App. 17

District Court Final Judgment App. 26

App. 17

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPP!

JACKSON DIVISION

LARRY G. BELLUM

PLAINTIFF

VS. CIVIL ACTION NO. 3:03-CV-343BN

PCE CONSTRUCTORS, INC.

DEFENDANT

OPINION AND ORDER

This cause is before the Court on the following Motions:

1) the Motion for Summary Judgment of Defendant PCE

Constructors, Inc. (hereinafter “Constructors”); and

2) the Motion to Strike Plaintiff's Amended Memorandum

in Opposition to Motion for Summary Judgment.

Having considered the Motion for Summary Judgment, the

Response, the Rebuttal and all attachments to each, as well as

supporting and opposing authority, the Court finds that it is well

taken and should be granted. In reaching the conclusions

regarding the Motion for Summary Judgment, the additional

arguments stated in Plaintiffs Amended Memorandum in

Opposition to Motion for Summary Judgment were

inconsequential. Accordingly, the Motion to Strike should be

denied as moot.

App. 18

I. FACTUAL BACKGROUND AND

PROCEDURAL HISTORY

This cause of action was brought by Plaintiff against his

former employer under the Family Medical Leave Act, 29

U.S.C. § 2601 et_seq. (hereinafter “FMLA”) and under

Mississippi tort law. Plaintiff Bellum was employed by

Constructors or a Constructors related entity beginning on or

about April 27, 1997.' During his employment tenure with

Constructors, he worked in differ:nt towns. At all times

relevant to this suit, however, Plaintiff worked at a facility

located in Fernwood, Mississippi.

On December 27, 2000, Plaintiff took medical leave

from his job with Constructors to undergo heart surgery. On

March 1, 2001, Plaintiff was released to return to work. Upon

returning to Constructors in expectation of resuming hus position

of employment, Plaintiff was informed that his job had been

‘Defendant contends that Constructors, [nc., which is

not a named Defendant, was actually Plaintiff's employer, rather

than the named Defendant PCE Constructors, Inc. Accordingly,

one of Defendant’s arguments is that summary judgment must

be granted pursuant to Rule 17 of the Federal Rules of Civil

Procedure because PCE Constructors, Inc. is not a real party in

interest. The Court need not address this argument because

summary judgment is granted on other grounds. The Court

makes mention of this issue to clarify that its reference to

“Constructors” herewith should not be interpreted as an

indication that Defendant’s real party in interest argument has

been rejected. The Court simply need not address that particular

issue.

~ App. 19

terminated. The official date of Plaintiffs employment

termination was March 16, 2001.

Contending that he was entitled to return to his position

or a comparable employment position, Plaintiff filed the subject

suit under the FMLA on March 3, 2003. The Complaint also

includes a claim of infliction of emotional distress under

Mississippi state law. The subject Motion for Summary

Judgment was filed by Constructors on February 17, 2004. The

Motion is now ripe for consideration by the Court.

Il. SUMMARY JUDGMENT STANDARD

Rule 56 of the Federal Rules of Civil Procedure

provides, in relevant part, that summary judgment “shall be

rendered forthwith if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law.” Fed. R. Civ. P. 56(c). The United States

Supreme Court has held that this language “mandates the entry

of summary judgment, after adequate time for discovery and

upon motion, against a party who fails to make a sufficient

showing to establish the existence of an element essential to that

party’s case, and on which that party will bear the burden of

proof of trial.” Celotex Corp. vy. Catrett, 477 U.S. 317, 322

(1986); see also Moore v. Mississippi Valley State Univ., 871

F.2d 545, 549 (Sth Cir. 1989); Washington v. Armstrong World

Indus., 839 F.2d 1121, 1122 (Sth Cir. 1988).

The party moving for summary judgment bears the initial

responsibility of informing the district court of the basis for its

motion and identifying those portions of the record in the case

which it believes demonstrate the absence of a genuine issue of

material fact. Celotex, 477 U.S. at 323. The movant need not,

an

App. 20

however, support the motion with materials that negate the

opponent's claim. Id. As to issues on which the non-moving

party has the burden of proof at trial, the moving party need

only point to portions of the record that demonstrate an absence

of evidence to support the non-moving party’s claim. Id. at

323-24. The non-moving party must then go beyond the

pleadings and designate “specific facts showing that there is a

genuine issue for trial.” Id. at 324.

Summary judgment can be granted only if everything in

the record demonstrates that no genuine issue of material fact

exists. It is improper for the district court to “resolve factual

disputes by weighing conflicting evidence, . . . since it ts the

province of the jury to assess the probative value of the

evidence.” Kennett-Murray Corp. v. Bone, 622 F.2d 887, 892

(Sth Cir. 1980). Summary judgment is also improper where the

court merely believes it unlikely that the non-moving party will

prevail at trial. National Screen Serv. Corp. v. Poster Exchange,

Inc., 305 F.2d 647, 651 (Sth Cir. 1962).

Ill. SUMMARY JUDGMENT ANALYSIS

A. FMLA Claim

Constructors asserts several arguments regarding

dismissal of Plaintiff s FMLA claim, any one of which, if found

to be with merit, would require summary dismissal of the claim.

The Court finds herewith that the FMLA claim must be

dismissed because Plaintiff falls outside of the definition of an

“eligible employee” under FMLA. Therefore, the Court need

not consider the remainder of Defendant's summary judgment

arguments.

To seek redress under the FMLA, an aggrieved party

must fall under the definition of an “eligible employee.”

App. 21

“Eligible employee” is defined in part under 29 U.S.C. § 2611

(2) (A), which states:

(2) Eligible employee

(A) In general

The term “eligible employee” means an employee

who has been employed- -

(1) for at least 12 months by the employer with

respect to whom leave is requested under section

2612 of this title; and

(ii) for at least 1,250 hours of service with such

employer during the previous |2-month period.

The parties agree that Plaintiff meets the requirement of § 2611

(2) (A). However, Constructors contends that under the

provisions of § 2611 (2) (B) (i), Plaintiff is specifically excluded

from the definition of an “eligible employee.” The Court agrees.

Under § 2611 (2) (B) (i):

The term “eligible employee” does not include-

>see

(ii) any employee of an employer who is employed

at a worksite at which such employer employs less

than 50 employees if the total number of

employees employed by that employer within 75

miles of that worksite is less than 50.

In summary, an otherwise “eligible employee” is rendered

ineligible if the subject employer employed less than 50 people

within 75 miles of the worksite at which the aggrieved employee

worked. In issue in this case is whether the 75 mile distance

stated in § 2611 (2) (B) (ii) is measured “as the bird flies,” as

Plaintiff asserts, or “as the road lies,” as Constructors asserts.

App. 22

Plaintiff worked at the Fernwood, Mississippi worksite

ofConstructors. The Fernwood worksite employed significantly

less than 50 people. The parties agree that the closest facility to

Fernwood, Mississippi at which Constructors had an employee

base was in Baton Rouge, Louisiana.’ The aggregate number of

employees at the Fernwood and Baton Rouge worksites

exceeded 50 employees. If the distance from Fernwood to

Baton Rouge is measured by road miles, the two facilities are

approximately 88.53 miles apart. Memorandum of Law in

Support of Defendant’s Motion for Summary Judgment, p. 11

n. 4. If the distance between the two cities is measured in a

straight line, the two worksites are approximately 65.9 miles

apart. Response to Motion for Summary Judgment, Exhibits “I”

through “L.” Based on these facts, the viability of Plaintiff's

FMLA claim hinges upon which of the two methods of

measurement the Court must utilize.

The subject issue is squarely addressed in 29 C.F.R. §

825.111 (b), which states:

The 75-mile distance is measured by surface miles,

using surface transportation over public streets,

roads, highways and waterways, by the shortest

route from the facility where the eligible employee

needing leave is employed. Absent available

surface transportation between worksites, the

distance is measured by using the most frequently

utilized mode of transportation (¢.g., airline miles).

*The parties do not contest the fact that the

Baton Rouge facility is the only facility at which Cons-

tructors had employees, which was arguably within 75

miles of Fernwood.

App. 23

(Emphasis added). Based on the clear and unequivocal

language of 29 C.F.R. § 825.111 (b), this Court must adopt the

measurement calculation proposed by Constructors; i.e., the

distance between Fernwood and Baton Rouge as measured by

road miles. That distance is greater than 75 miles. The Court

therefore finds that Plaintiff is excluded from the definition of a

“covered employee” under the provisions of 29 U.S.C. § 2611

(2) (B) (ii). Accordingly, Plaintiff s claim under the FMLA must

be dismissed.

B. Infliction of Emotional Distress Claim

In the absence of a viable FMLA claim, Plaintiff's

infliction of emotional distress claim must be dismissed as well.

Plaintiff contends that he suffered emotional distress a result of

the failure by Constructors to reinstate him to his employment

position after returning from medical leave. Assuming arguendo

that Plaintiff did in fact suffer emotional distress, the claim is

nevertheless non-cognizable if Constructors had the right to

refrain from re-hiring Plaintiff. As indicated by the following

binding Mississippi law, Constructors did operate within the

bounds of its legal rights in choosing not to re-hire Plaintiff.

Mississippi is an “at will” employment state. Levens v.

Campbell, 733 So.2d 753, 760 (Miss. 1999). “[A]bsent an

employment contract expressly providing to the contrary, an

employee may be discharged at the employer's will for good

reason, bad reason, or no reason at all... .”. Id. (citations

omitted). Therefore, if Plaintiff had no contractual right to

ongoing employment, or if no law, such as the FMLA, required

Constructors to reinstate Plaintiff, then Constructors was not

obligated to re-hire Plaintiff. Plaintiff has come forward with no

binding contract of employment between him and Constructors.

Also, as analyzed above, Constructors was not required to

App. 24

reinstate Plaintiff under the FMLA. The Court therefore finds

that Constructors was not required to re-hire Plaintiff after he

returned from medical leave. In that context, Plaintiff has failed

to state a viable infliction of emotional distress claum based on

the legally permissible decision by Constructors to refrain from

reinstating him.

The Court further notes that under Mississippi law, “a

cause of action for intentional infliction of emotional distress in

a workplace environment has usually been limited to cases

involving a pattern of deliberate, repeated harassment over a

period of time.” Lee v. Golden Triangle Planning & Dev. Dist.,

Inc., 797 So.2d 845, 851 (Miss. 2001) (citation omitted). Such

a claim “will not ordinarily lie for mere employment disputes.”

Id. (citation omitted). The Court finds that the holdings in Lee

provide an additional reason for dismissing the infliction of

emotional distress claim. That is, Plaintiff cannot maintain an

emotional distress claim based on the mere fact that his

employment position was terminated. Under the facts of this

case, Plaintiff's employment termination does not represent

“deliberate, repeated harassment over a period of time.”

Summary Judgment on this issue must be granted.

IV. CONCLUSION

Based on the reasons set forth in this Opinion, Summary

Judgment is granted herewith. In reaching this conclusion, the

additional arguments -presented in Plamtiffs Amended

Memorandum in Opposition to Motion for Summary Judgment

were of no consequence. Accordingly, the Motion to Strike

Plaintiff's Amended Memorandum in Opposition to Motion for

Summary Judgment should be denied as moot.

IT IS THEREFORE ORDERED that the Motion of

Defendant for Summary Judgment [36-1] is hereby granted. A

App. 25

Final Judgment dismissing this case with prejudice will be

entered on this day,

IT IS FURTHER ORDERED that the Motion to Strike

Plaintiff's Amerded Memorandum in Opposition to Motion for

Summary Judgment [47-1] is hereby denied as moot

SO ORDERED this the [5th] day of April, 2004.

/s/ William Barbour

UNITED STATES DISTRICT JUDGE

tct

App. 26

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

JACKSON DIVISION

LARRY G. BELLUM PLAINTIFF

VS. CIVIL ACTION NO, 3:03-CV-343BN

PCE CONSTRUCTORS, INC, DEFENDANT

FINAL JUDGMENT

In accordance with the Opinion and Order entered on

this day granting Defendant's Motion for Summary Judgment,

this case is hereby finally dismissed with prejudice.

SO ORDERED this the [5th] day of April, 2004.

/s/ William Barbour

UNITED STATES DISTRICT JUDGE

tct