Doreen Ricco v. JOHN E. POTTER, Postmaster General

*The Honorable Patrick J. Duggan, United States District Judge for
the Eastern District of Michigan, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0242P (6th Cir.)
File Name: 04a0242p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
DOREEN RICCO,
Plaintiff-Appellant,
v.
JOHN E. POTTER, Postmaster
General, et al.,
Defendants-Appellees.
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No. 03-3294
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 02-00496—Donald C. Nugent, District Judge.
Argued: April 23, 2004
Decided and Filed: July 27, 2004
Before: MERRITT and MOORE, Circuit Judges;
DUGGAN, District Judge.*
2 Ricco v. Potter, et al. No. 03-3294
_________________
COUNSEL
ARGUED: Jonathan T. Hyman, REMINGER &
REMINGER CO., Cleveland, Ohio, for Appellant. Annette
G. Butler, ASSISTANT UNITED STATES ATTORNEY,
Cleveland, Ohio, for Appellees. ON BRIEF: Jonathan T.
Hyman, Richard C. Haber, REMINGER & REMINGER CO.,
Cleveland, Ohio, for Appellant. Annette G. Butler,
ASSISTANT UNITED STATES ATTORNEY, Cleveland,
Ohio, for Appellees.
MOORE, J., delivered the opinion of the court, in which
DUGGAN, D. J., joined. MERRITT, J. (pp. 14-15), delivered
a separate concurring opinion.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. This appeal
from the dismissal of a claim under the Family and Medical
Leave Act of 1993 (“FMLA”) raises an important issue of
statutory construction. Specifically, this appeal requires us to
interpret the phrase “hours of service” as it is used in the
FMLA. We hold that make-whole relief awarded to an
unlawfully terminated employee may include credit towards
the hours-of-service requirement contained in the FMLA’s
definition of “eligible employee.”
Plaintiff-Appellant, Doreen Ricco (“Ricco”), appeals the
district court’s dismissal under Federal Rule of Civil
Procedure 12(b)(6) of her claim pursuant to the FMLA
against her former employer, Defendant-Appellee, John E.
Potter, Postmaster General (“Postmaster”). On appeal, Ricco
argues that the district court erred by adopting the reasoning
of Plumley v. Southern Container, Inc., 303 F.3d 364, 367

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No. 03-3294 Ricco v. Potter, et al. 3
1Because this is an appeal from the district court’s judgment granting
the Postmaster’s motion to dismiss under Rule 12(b)(6), we recite the
facts as they are rec ounted in Ricco’s amended complaint.
(1st Cir. 2002), in which the First Circuit held that the hours-
of-service requirement contained in the FMLA’s definition of
“eligible employee” includes only hours during which an
employee performed actual work, not hours for which an
employee was compensated pursuant to an arbitration award.
Ricco further argues on appeal that the district court did not
adequately balance the competing interests of employers and
employees and created an incentive for employers unlawfully
to terminate employees to prevent employees from satisfying
the hours-of-service requirement.
For the following reasons, we REVERSE the district
court’s judgment granting the Postmaster’s motion to dismiss
under Rule 12(b)(6) and REMAND this case for further
proceedings consistent with this opinion.
I. BACKGROUND
A. Factual Background
In July 1993, the United States Postal Service (“Postal
Service”) hired Ricco to work at its general mail facility in
Cleveland, Ohio.1 In December 1997, the Postal Service
issued Ricco “a notice of removal, effectively terminating her
employment.” Joint Appendix (“J.A.”) at 26 (Am. Compl.
¶ 7). Ricco timely grieved her December 1997 termination
and ultimately proceeded to an arbitration hearing on January
19, 1999. In a February 8, 1999 award, the arbitrator ordered
that Ricco’s termination be converted to a thirty-work-day
suspension and that Ricco “be reinstated subject to passing a
fitness-for-duty examination and be made whole.” J.A. at 26
(Am. Compl. ¶¶ 9, 10). Subsequently, Ricco “passed the
fitness-for[-]duty examination and was returned to work with
4 Ricco v. Potter, et al. No. 03-3294
2To be an “eligible employee” under the Family and Med ical Leave
Act of 1993 (“FMLA”) an employee must have worked for her employer
for at least twelve months and must have completed “at least 1,250 hours
of service with such employer during the pervious 12-month period.” 29
U.S.C. § 261 1(2)(A).
3In her amended complaint, Ricco avers that her December 1997
termination was “unlawful.” B ecause this is an appe al from the district
court’s judgment granting the Postmaster’s motion to dismiss under Rule
12(b)(6), we must assume that the arbitrator did, in fact, determine that
Ricco’s Decem ber 1 997 termination was unlawful.
full credit for years of service for seniority and pension
purposes.” J.A. at 26-27 (Am. Compl. ¶ 10).
After Ricco returned to work, from May through July 1999,
she suffered from depression and migraines after the death of
her husband, and consequently she required intermittent
leaves of absence. Due to this serious health condition, Ricco
requested FMLA leave in early May 1999. According to
Ricco, the Postal Service denied her request for FMLA leave
because it concluded that she had not met the hours-of-service
requirement.2 Ricco alleges that she “had not ‘worked’ 1250
hours in the preceding 12 months solely because she had been
unlawfully terminated in December 1997 and in violation of
the Collective Bargaining Agreement.”3 J.A. at 27 (Am.
Compl. ¶ 15). Ricco further alleges that the Postal Service
has previously recognized “that ‘[w]hen an[] employee is
awarded back pay, accompanied by equitable remedies (i.e.
full back pay with seniority and benefits, or a ‘make whole’
remedy), the hours the employee would have worked if not
for the action which resulted in the back pay period, are
counted as work hours for the 1250 work hour eligibility
requirement under the Family Medical Leave Act (FMLA).’”
J.A. at 29 (Am. Compl. ¶ 27).
On October 15, 1999, the Postal Service issued Ricco
another notice of removal “due to a failure to maintain a
regular work schedule.” J.A. at 27 (Am. Compl. ¶ 14). Ricco

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No. 03-3294 Ricco v. Potter, et al. 5
timely grieved her October 1999 termination and proceeded
to another arbitration hearing. In a November 19, 2001
award, the arbitrator affirmed Ricco’s dismissal “on the basis
that [Ricco] was absent from work [and further] stated that
‘this is not the proper forum to litigate any alleged violations
of the FMLA’ and therefore refused to consider whether the
FMLA had been violated.” J.A. at 28 (Am. Compl. ¶ 19).
Thereafter, Ricco commenced this action in federal court.
B. Procedural Background and Jurisdiction
On March 14, 2002, Ricco filed a two-count complaint in
the district court alleging that the Postmaster terminated her
in violation of the FMLA and Ohio public policy. On
September 6, 2002, Ricco filed a motion to dismiss Count II
of her complaint, which asserted a claim based upon Ohio
public policy, because that claim had been foreclosed by Ohio
Supreme Court precedent. At a status conference on October
2, 2002, the Postmaster raised the potential applicability of
the Plumley decision, and the parties agreed that Ricco would
file an amended complaint supplementing her factual
allegations and that the Postmaster would then file a motion
to dismiss. Ricco filed her first amended complaint on
October 17, 2002, and thereafter the Postmaster filed his
motion to dismiss on October 21, 2002. The district court
granted the Postmaster’s motion to dismiss on February 7,
2003. Ricco filed a timely notice of appeal.
The district court had jurisdiction pursuant to 28 U.S.C.
§ 1331, as Ricco’s FMLA claim presented a federal question.
This court has jurisdiction over the appeal pursuant to
28 U.S.C. § 1291.
II. ANALYSIS
A. Standard of Review and Statute of Limitations
We review de novo a district court’s dismissal under Rule
12(b)(6). Marks v. Newcourt Credit Group, Inc., 342 F.3d
6 Ricco v. Potter, et al. No. 03-3294
444, 451 (6th Cir. 2003). “In deciding whether to grant a
Rule 12(b)(6) motion, we ‘must construe the complaint in the
light most favorable to the plaintiff, accept all factual
allegations [of the plaintiff] as true, and determine whether
the plaintiff undoubtedly can prove no set of facts in support
of his claims that would entitle him to relief.’” Id. at 451-52
(quoting Allard v. Weitzman (In re DeLorean Motor Co.), 991
F.2d 1236, 1240 (6th Cir. 1993)). Moreover, a Rule 12(b)(6)
“motion should not be granted ‘unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief.’” Id. at 425
(quoting Cameron v. Seitz, 38 F.3d 264, 270 (6th Cir. 1994)
(quotation omitted)). The Postmaster points out that he
timely raised in his answer as an affirmative defense the
expiration of the FMLA’s two-year statute of limitations, but
that the district court did not rule upon this issue in its
opinion. The FMLA provides:
(1) In general
Except as provided in paragraph (2), an action may be
brought under this section not later than 2 years after the
date of the last event constituting the alleged violation for
which the action is brought.
(2) Willful violation
In the case of such action brought for a willful violation
of section 2615 of this title, such action may be brought
within 3 years of the date of the last event constituting
the alleged violation for which such action is brought.
29 U.S.C. § 2617(c). The Postal Service terminated Ricco,
allegedly in violation of the FMLA, on October 15, 1999, and
Ricco filed her complaint approximately two and one-half
years later. Therefore, Ricco’s FMLA claim is time-barred
unless she proves that the Postmaster’s violation was willful.

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No. 03-3294 Ricco v. Potter, et al. 7
Ricco, in both her initial complaint and her first amended
complaint, averred that the Postmaster and the Postal Service
acted negligently, willfully, and maliciously when they
violated her rights under the FMLA. An employer commits
a willful violation of the FMLA when it acts with knowledge
that its conduct is prohibited by the FMLA or with reckless
disregard of the FMLA’s requirements; therefore, the
determination of willfulness involves a factual question. See
Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 125-
130 (1985) (defining the standard for a willful violation of the
Age Discrimination in Employment Act); Hillstrom v. Best
Western TLC Hotel, 354 F.3d 27, 33 (1st Cir. 2003); see also
Williams v. Schuller Int’l, Inc., No. 00-3614, 2002 WL
193929, at *3 (6th Cir. Feb. 5, 2002) (applying Thurston’s
standard of willfulness to claims brought under the FMLA).
Because a plaintiff’s factual allegations must be taken as true
for purposes of deciding a Rule 12(b)(6) motion to dismiss,
a plaintiff may withstand such a motion merely by having
alleged that the FMLA violation was willful. See Caucci v.
Prison Health Servs., Inc., 153 F. Supp. 2d 605, 608-09 (E.D.
Pa. 2001).
B. Statutory Interpretation
On appeal, Ricco contends that the district court erred by
adopting the reasoning in Plumley, arguing that the First
Circuit erroneously concluded that the hours-of-service
requirement contained in the FMLA’s definition of “eligible
employee” means only hours that an employee performed
actual work, not hours for which an employee was
compensated pursuant to an arbitration award. In Plumley,
the First Circuit looked, as directed by the FMLA, to the Fair
Labor Standards Act of 1938 (“FLSA”) for guidance
regarding the proper interpretation of the hours-of-service
requirement. Plumley, 303 F.3d at 369-72.
Ricco points out, however, that neither the FMLA nor the
FLSA define the term “hours of service” and argues that
neither the FLSA nor its applicable regulations support the
8 Ricco v. Potter, et al. No. 03-3294
interpretation of the hours-of-service requirement adopted in
Plumley. Ricco argues that the FLSA merely defines “regular
rate,” and that although the definition of “regular rate”
excludes payment for occasional periods where no work is
performed due to certain causes, unlawful termination should
not be so excluded. Because the FMLA and FLSA do not
define the term “hours of service,” Ricco urges this court to
define the term to include those hours that an employee is
deemed to have worked pursuant to a make-whole award
issued by an arbitrator in order to effectuate the FMLA’s
purpose of “balanc[ing] the demands of the workplace with
the needs of the family,” and to discourage employers from
unlawfully terminating employees to prevent them from
meeting the hours-of-service requirement. Appellant’s Br. at
17.
In response, the Postmaster argues that together the FMLA
and the FLSA adequately define the term “hours of service.”
The Postmaster asserts that the legislative history of the
FMLA, the pertinent provisions of the FLSA, and Supreme
Court precedent interpreting the FLSA all indicate that the
hours-of-service requirement does not include time for which
an employee was paid but did not work or time spent on
unpaid leave. The Postmaster further asserts that interpreting
the term “hours of service” to include those hours that an
employee is deemed to have worked pursuant to a make-
whole award issued by an arbitrator would undermine the
FMLA’s purpose of allowing “employees to take reasonable
leave . . . in a manner that accommodates the legitimate
interests of the employer.” Appellee’s Br. at 12.
The FMLA entitles eligible employees to twelve weeks of
unpaid leave during any twelve-month period for certain
statutorily prescribed reasons. 29 U.S.C. § 2612(a)(1). The
FMLA defines the term “eligible employee” as:
an employee who has been employed —

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No. 03-3294 Ricco v. Potter, et al. 9
4The determinatio n of whether an employee m eets the F MLA’s
eligibility requirements is made in reference to the date the employee
commences his or her leave, not the day the employer takes an adverse
action against the employee. Butler v. Ow ens-B rockway Pla stic Pro ds.,
Inc., 199 F.3d 31 4, 316 (6th Cir. 1999).
5Under the FLSA, an employee must be compensated for overtime
work at a rate “not less than one and one-half times the regular rate at
which he is employed.” 29 U.S.C. § 207(a)(1).
(i) 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 12-month period.
29 U.S.C. § 2611(2)(A).4 The FMLA does not define the
term “hours of service”; however, it does specify: “For
purposes of determining whether an employee meets the
hours of service requirement specified in subparagraph
(A)(ii), the legal standards established under section 207 of
this title shall apply.” Id. at (2)(C). The applicable
regulations explain, “The determining factor is the number of
hours an employee has worked for the employer within the
meaning of the FLSA.” 29 C.F.R. § 825.110.
Section 7 of the FLSA does not define the term “hours of
service,” but it does provide in its definition of “regular rate”
standards for determining the rate at which employees must
be compensated for engaging in overtime work.5 FLSA, ch.
676, § 52 Stat 1060 (1938) (codified as 29 U.S.C. § 207)
(“§ 207”). The FLSA specifies that an employee’s “regular
rate” of compensation does not include, among other things,
(2) payments made for occasional periods when no
work is performed due to vacation, holiday, illness,
failure of the employer to provide sufficient work,
or other similar cause; reasonable payments for
10 Ricco v. Potter, et al. No. 03-3294
traveling expenses, or other expenses, incurred by an
employee in the furtherance of his employer’s
interests and properly reimbursable by the employer;
and other similar payments to an employee which
are not made as compensation for his hours of
employment[.]
29 U.S.C. § 207(e) (emphases added). The applicable
regulations explain:
This provision of section 7(e)(2) deals with the type of
absences which are infrequent or sporadic or
unpredictable. It has no relation to regular “absences”
such as lunch periods nor to regularly scheduled days of
rest. . . .
. . .
. . . The term “other similar cause” refers to payments
made for periods of absence due to factors like holidays,
vacations, sickness, and failure of the employer to
provide work. Examples of “similar causes” are
absences due to jury service, reporting to a draft board,
attending a funeral of a family member, inability to reach
the workplace because of weather conditions. Only
absences of a nonroutine character which are infrequent
or sporadic or unpredictable are included in the “other
similar cause” category.
29 C.F.R. § 778.218(b), (d).
In Plumley, the First Circuit concluded that these statutes
and regulations indicate that the hours-of-service requirement
includes only hours that the employee actually worked, not
hours for which an employee was compensated pursuant to an
arbitration award. 303 F.3d at 370-73. No other circuit has
addressed this issue.

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No. 03-3294 Ricco v. Potter, et al. 11
It is true that neither the FMLA nor the FLSA defines the
term “hours of service,” but the FMLA specifies that an
employee’s “hours of service” are to be calculated according
to the standards contained in § 207. Examination of § 207
leads to the conclusion that the only plausibly applicable
standards are those contained in the definition of the term
“regular rate.” In response to public comment, the
Department of Labor stated that the legislative history of the
FMLA indicates that “the minimum hours of service
requirement is meant to be construed in a manner consistent
with the legal principles established for determining hours of
work for payment of overtime compensation.” Summary of
Comments, 60 Fed. Reg. 2186 (January 6, 1995). It is also
true, however, that § 207 limits additional unenumerated
exclusions from the determination of an employee’s “regular
rate” to “other similar causes,” and that time that an employee
does not work due to vacation or illness is conceptually
dissimilar from time that an employee does not work due to
unlawful termination.
We conclude that time that an employee would have
worked but for her unlawful termination is not an “other
similar cause” within the meaning of § 207. Such hours are
different from occasional hours of absence due to vacation,
holiday, illness, and the employer’s failure to provide work,
etc., in that they are hours that the employee wanted to work
but was unlawfully prevented by the employer from working.
Section 207 does not clearly prevent such hours from
counting, and the purpose of the FMLA’s hours-of-service
requirement is properly served by including these hours. In
such cases, the employer’s unlawful conduct has prevented
the employee from satisfying the hours-of-service
requirement. Moreover, denying employees credit towards
the hours-of-service requirement for hours that they would
have worked, but for their unlawful termination, rewards
employers for their unlawful conduct. We conclude that
neither the FMLA nor the FLSA addresses directly the
situation in this case involving hours that an employee would
12 Ricco v. Potter, et al. No. 03-3294
have worked but for her unlawful prior termination by her
employer.
We note that back-pay awards often include payment for
overtime work that an employee would have performed but
for her employer’s violation of employment laws. See, e.g.,
United States v. City of Warren, 138 F.3d 1083, 1097 (6th
Cir. 1998) (upholding an award of lost overtime granted to
prevailing plaintiffs in a Title VII case); EEOC v. Ky. State
Police Dep’t, 80 F.3d 1086, 1100 (6th Cir.) (upholding an
award of lost overtime payments granted to prevailing
plaintiffs in an Age Discrimination in Employment Act case),
cert. denied, 519 U.S. 963 (1996). Such back-pay awards
involve two calculations — (1) determining the number of
overtime hours the employee likely would have worked but
for her unlawful termination; and (2) determining the
employee’s likely rate of overtime pay. While the
calculations contained in § 207 are necessary to determine the
employee’s likely rate of overtime pay, they have nothing to
do with the determination of how many hours the employee
likely would have worked but for her unlawful termination.
When calculating a back-pay award, the determination of how
many hours the employee likely would have worked but for
her unlawful termination is typically based upon the
employee’s work history. Similarly, when calculating the
credit towards the hours-of-service requirement due as part of
a make-whole award, the determination of how many hours
the employee likely would have worked but for her unlawful
termination should also be based upon her employment
history.
The goal of a make-whole award is to put the employee in
the same position that she would have been in had her
employer not engaged in the unlawful conduct; this includes
giving the employee credit towards the FMLA’s hours-of-
service requirement for hours that the employee would have
worked but for her unlawful termination. The district court
must determine in the first instance the number of hours that
Ricco would have worked but for her unlawful termination in

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No. 03-3294 Ricco v. Potter, et al. 13
order to ascertain Ricco’s eligibility under the hours-of-
service requirement for FMLA leave.
III. CONCLUSION
For the foregoing reasons, we REVERSE the district
court’s order granting the Postmaster’s motion to dismiss
pursuant to Rule 12(b)(6) and REMAND this case for further
proceedings consistent with this opinion.
14 Ricco v. Potter, et al. No. 03-3294
____________________
CONCURRENCE
____________________
MERRITT, Circuit Judge, concurring. The defendant-
employer in this case discharged plaintiff wrongfully,
preventing her continued work, according to a now-final,
arbitration award, and thereby prevented her from qualifying
for benefits under the Family Medical Leave Act. I concur in
the Court’s opinion and simply add the idea that a contrary
decision would contravene fundamental general principles of
restitution and equitable remedies of long standing by
allowing the employer to profit from its own infringement of
the plaintiff’s right to the statutory benefits derived from her
own labor.
The remedies provided by the Family Medical Leave Act
and the Fair Labor Standard Act are make-whole, equitable
remedies, as the Court’s opinion suggests. The Restatement
of Restitution in its introductory note sets out the underlying
principle:
The principles expressed in this Chapter represent not
only a large body of contemporary, “positive’ law but
also a view of justice traceable to Roman law and
beyond. The central idea is the conjunction of unjust
enrichment on the one side and loss of grievance on the
other. Rules of liability in restitution depend in part on
the wrongful acquisition of gain and in part on harm or
loss wrongfully imposed. In some cases the fact that a
person has acquired a gain by wrongdoing is the
principal reason for requiring him to make restitution.

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No. 03-3294 Ricco v. Potter, et al. 15
The first section of the Restatement then provides:
§ 1. The General Principle: Unjust Enrichment
A person who receives a benefit by reason of an
infringement of another person’s interest, or of loss
suffered by the other, owes restitution to him in the manner
and amount necessary to prevent unjust enrichment.
American Law Institute, Restatement of the Law 2d, Tent.
Draft 1, pp. 7-8 (April 5, 1983). See also Lightly v. Qouston,
127 Eng. Rep. 774 (C.P. 1808) in which Lord Mansfield
applied the restitution concept to the appropriation of the right
of an employee of his labor, upholding an action in the form
of assumpsit for work and labor wrongly prevented by the
defendant. See Palmer, Law of Restitution § 2.1, n. 5 (1978),
discussing the Lightly case in a modern context. This same
fundamental principle of restitution should be applied in this
case where the employer wrongfully prevented the labor of
the employee thereby through its action denying the employee
the benefit of family medical leave. To leave the status quo
in place would unjustly enrich the employer at the expense of
the employee.

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