Faris v. Williams WPC-I, et al

United States Court of Appeals
Fifth Circuit
F I L E D
May 27, 2003
Charles R. Fulbruge III
Clerk
REVISED JUNE 2, 2003
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 02-50446
_______________
CAROL FARIS,
Plaintiff-Appellee,
VERSUS
WILLIAMS WPC-I, INC., ET AL.,
Defendants,
NEXTIRA LLC,
ALSO KNOWN AS WILLIAMS COMMUNICATIONS SOLUTIONS LLC;
SUSAN BAIRD,
IN HER INDIVIDUAL CAPACITY,
Defendants-Appellants.
_________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________

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Before GARWOOD, SMITH, and BARKSDALE,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Nextira LLC (“Nextira”) and Susan Baird
appeal a determination that a post-termination
release signed by Carol Faris was unenforce-
able under 29 C.F.R. § 825.220(d), a regula-
tion issued pursuant to the Family and Medical
Leave Act of 1993 (“FMLA”). Concluding
that enforcement of the release is not prohib-
ited by the regulation, and that the release was
ratified by Faris’s failure to tender back the
consideration paid for the signing of the re-
lease, we reverse and render judgment for
appellants.
I.
Faris worked as an occupational health
specialist for Nextira from November 1997 to
June 1999, when Baird, her supervisor, termi-
nated her, citing poor performance. Faris re-
ceived two weeks’ pay in lieu of notice. On
the same day, she was offered an additional
$4,063.32, the equivalent of one month’s sal-
ary, in exchange for signing a release that pur-
ported to waive her rights to, inter alia, “all
other claims arising under any other federal,
state or local law or regulation;” it did not
specifically mention the FMLA. She also re-
ceived a memorandum advising that she had
45 days to consider the release and seven days
to revoke if she signed, though the parties dis-
pute whether she was so advised verbally.1
Faris signed the release and received
$4,063.32; she understood that the payment
was in return for the signing of the release.
She has not tendered back the payment.
Faris sued Nextira and Baird (collectively,
“Nextira”), asserting she was fired in retalia-
tion for asserting her rights under the FMLA.
Following discovery, defendants moved for
summary judgment as to the enforceability of
the release, and Faris moved for partial sum-
mary judgment on whether the release was per
se unenforceable under § 825.220(d) (“the
regulation”).
The court denied defendants’ motion and
granted Faris’s, holding that the plain language
of the regulation dictated that FMLA claims
are not waivable. The district court certified
the questions of law addressed in its summary
judgment order under 28 U.S.C. § 1292(b),
and we granted defendants leave to bring this
interlocutory appeal.
II.
Defendants assert that the district court
erred in its determination that the plain lan-
guage of the regulation renders Faris’s waiver
void, arguing instead that, under a plain lan-
guage reading, the regulation does not reach
the waivability of post-termination FMLA
claims. Defendants contend, in the alternative,
that, if the regulation is ambiguous, the rele-
vant law under similar statutory schemes, and
the common law presumption of and favor
toward waivability, also support a limited
reading of the regulation.2 We conclude that
1 Faris states that she was pressured into signing
the release because she was confronted by Baird
and another employee and told, “This is your last
opportunity to sign the release if you expect to get
compensation for it.”
2 Defendants also argue that, if the regulation
extends to the waiver at issue here, it is invalid
under Chevron U.S.A. Inc. v. N.R.D.C., 467 U.S.
837 (1984). This argument was not presented to
nor passed on by the district court, and therefore
may not be considered on appeal. See Picco v.
(continued...)

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the proper reading of the regulation is that it
does not apply to post-dispute claims for
damages under the FMLA.
We review de novo a grant or denial of
summary judgment, NCNB Tex. Nat’l Bank v.
Johnson, 11 F.3d 1260, 1264 (5th Cir. 1994),
applying the same standard as did the district
court, Deas v. River W., L.P., 152 F.3d 471,
475 (5th Cir. 1998). “Summary judgment is
proper when no issue of material fact exists
and the moving party is entitled to judgment as
a matter of law. Questions of fact are viewed
in the light most favorable to the nonmovant
and questions of law are reviewed de novo.”
Id.
A.
Defendants argue that the plain language of
the regulation demonstrates that it does not
reach retaliation claims under FMLA by for-
mer employees. Defendants focus in part on
the meaning of the term “employee,” reasoning
that the term implicitly refers only to current
employees and cannot extend to former em-
ployees. Faris argues that the plain language
does reach former employees, and this was the
district court’s conclusion.
The regulation reads, in relevant part:
“Employees cannot waive, nor may employers
induce employees to waive, their rights under
FMLA.” 29 C.F.R. § 825.220(d). FMLA
§ 2611(3) defines “employee” by reference to
the FLSA, 29 U.S.C. § 203(e), which provides
that “the term ‘employee’ means any individual
employed by an employer.”
This definition, by itself, is unhelpful. In
Nationwide Mut. Ins. Co. v. Darden, 503 U.S.
318, 323 (1992), the Court stated that this
definition, as applied under ERISA, “is com-
pletely circular and explains nothing.” The
term “employee” may have different meanings
in different acts, or even in different provisions
of the same act. See Robinson v. Shell Oil
Co., 519 U.S. 337, 341-44 (1997) (consider-
ing the meaning of employee in the title VII
context). In Robinson, the Court noted that
although some sections of title VII unambigu-
ously refer to only current or past employees,
those examples at most demonstrate that
the term “employees” may have a plain
meaning in the context of a particular
sectionSSnot that the term has the same
meaning in all other sections and in all
other contexts. Once it is established
that the term “employees” includes for-
mer employees in some sections, but not
in others, the term standing alone is
necessarily ambiguous and each section
must be analyzed to determine whether
the context gives the term a further
meaning that would resolve the issue in
dispute.
Id. at 343-44 (citations omitted). Similarly,
the term “employee” is ambiguous as used in
the FMLA, because in various contexts it re-
fers to only current employees, but in other
situations it refers to former employees.3 We
2 (...continued)
Global Marine Drilling Co., 900 F.2d 846, 849
(5th Cir. 1990).
3 Other circuits also have determined that “em-
ployee” is ambiguous in the FMLA context. See
Smith v. BellSouth Telecomms., Inc., 273 F.3d
1303, 1307-13 (11th Cir. 2001) (finding “employ-
ee” ambiguous and deferring to Department of
Labor’s interpretation that the term includes pro-
spective employees for purposes of discrimination
(continued...)

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must look at the context in which the term is
used to see whether the waiver prohibition ap-
plies to retaliation claims.
The term “employee,” throughout § 825.-
220, appears consistently to refer to current
employees. Several uses unambiguously refer
to current employees only. Section 825.220-
(b)(1) prohibits “transferring employees from
one worksite to another for the purpose of re-
ducing worksites, or to keep worksites, below
the 50-employee threshold for employee eli-
gibility under the Act[.]” Because one can
transfer only a current employee, this use is
unambiguous. Similarly, § 825.220(c) prohib-
its employers “from discriminating against em-
ployees or prospective employees who have
used FMLA leave.” By distinguishing be-
tween “employees” and “prospective employ-
ees,” the regulation implies that “employee”
describes only those that are currently em-
ployed.
Looking back to § 825.220(d), we see that
the examples immediately following the state-
ment of nonwaivability both concern current
employees. The examples are as follows:
For example, employees (or their collec-
tive bargaining representatives) cannot
“trade off” the right to take FMLA leave
against some other benefit offered by the
employer. This does not prevent an
employee’s voluntary and uncoerced
acceptance (not as a condition of em-
ployment) of a “light duty” assignment
while recovering from a serious health
condition (see § 825.702(d)). In such a
circumstance the employee’s right to
restoration to the same or an equivalent
position is available until 12 weeks have
passed within the 12-month period,
including all FMLA leave taken and the
period of “light duty.”
In the context of this regulation, there are
strong indications that “employee” refers only
to current employees. It certainly cannot be
said that the usage unambiguously encom-
passes former employees.
B.
Defendants argue that the regulation ex-
tends only to “substantive rights” under the
FMLA, rather than to post-dispute causes of
action for retaliation. The proper focus is on
the meaning of the phrase “rights under
FLMA,” which in context limits the regulation
to prospective waivers of rights under the
statute.
Several factors support the interpretation
that this regulation applies only to waiver of
substantive rights under the statute, such as
rights to leave, reinstatement, etc., rather than
to a cause of action for retaliation for the ex-
ercise of those rights. The statute and regula-
tion consistently use the term “rights under the
law” or “rights under FMLA” to refer to the
statutory rights to leave, certain conditions of
that leave, and restoration, as set forth in 29
U.S.C. §§ 2612-14. Conversely, although
§ 825.220 explicates the requirements of 29
U.S.C. § 2615(a),4 the regulation never refers
3 (...continued)
claims); Duckworth v. Pratt & Whitney, Inc., 152
F.3d 1, 9-11 (1st Cir. 1998) (same).
4 29 U.S.C. § 2615(a) states: “It shall be un-
lawful for any employer to interfere with, restrain,
or deny the exercise of or the attempt to exercise,
any right provided under this chapter.”

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to the cause of action for damages as a right
under FMLA.5
Indeed, the regulation begins with the title
“How are employees protected who request
leave or otherwise assert FMLA rights?” It
then goes on to describe how FMLA rights are
protected, discussing the pro hibition of dis-
crimination as a method of protecting those
rights. The cause of action for discrimination,
however, is never described as an FMLA right
itself, within the regulation or elsewhere. Sub-
section (d) must be read in conjunction with
the heading describing protections for employ-
ees who “request leave or otherwise assert
FMLA rights,” because it is responsive to that
heading, limiting waiver of rights considered in
the heading.
The examples of nonwaivability, quoted
above, concern prohibitions on the prospective
waiver of rights under FMLA. In the exam-
ples, the rights to leave and restoration are the
“rights under FMLA.” The cause of action for
retaliation is unaddressed by these examples,
but rather is a protection for FMLA rights, the
waiver of which is not prohibited by the regu-
lation. This is consistent with the rest of the
language of the regulation. A plain reading of
the regulation is that it prohibits prospective
waiver of rights, not the post-dispute settle-
ment of claims.
C.
Our reading of the regulation is bolstered
by public policy favoring the enforcement of
waivers and our knowledge that similar waiv-
ers are allowed in other regulatory contexts.
Waivers of the right to bring suit under the
Age Discrimination in Employment Act
(“ADEA”) are enforced by this court and are
not void as against public policy. “[A]lthough
an employee cannot waive the right to file a
charge with the [Equal Employment Opportu-
nity Commission (“EEOC”)], the employee
can waive not only the right to recover in his
or her own lawsuit but also the right to re-
cover in a suit brought by the EEOC on the
employee’s behalf.” EEOC v. Cosmair, Inc.,
L'Oreal Hair Care Div., 821 F.2d 1085, 1091
(5th Cir. 1987). Therefore, although a defen-
dant cannot waive his substantive rights under
the statute, he can waive his right to money
damages.
Releases of title VII claims are also en-
forced. In Rogers v. Gen. Elec. Co., 781 F.2d
452 (5th Cir. 1986), we noted that
[a] general release of Title VII claims
does not ordinarily violate public policy.
To the contrary, public policy favors
voluntary settlement of employment
discrimination claims brought under
Title VII. While a release of Title VII
claims will not ordinarily violate public
policy, an employee may validly release
only those Title VII claims arising from
discriminatory acts or practices which
antedate the execution of the release.
Thus, an otherwise valid release that
waives prospective Title VII rights is
invalid as violative of public policy.
Id. at 454 (citations omitted).6
5 We also have distinguished the cause of action
for retaliation from the rights under the FMLA.
See, e.g., Chaffin v. John H. Carter Co., 179 F.3d
316, 319 (5th Cir. 1999) (describing “substantive
rights under the FMLA,” as distinguished from the
cause of action for retaliation).
6 The EEOC has released enforcement guidance
discussing the contours of non-waivable employee
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It is not necessarily dispositive that post-
dispute waiver is allowed under the ADEA and
title VII. We must carefully consider whether
there are aspects of title VII, ADEA, and
FMLA that might encourage differing protec-
tions and interpretations.7 We know, how-
ever, of no good reasonSSnor has Faris sug-
gested oneSSwhy the government would
proscribe waiver for FMLA retaliation claims
and yet favor waiver o f claims for age dis-
crimination under ADEA and for civil rights
violations under title VII. Had the Secretary
intended such a departure from the policy em-
ployed in analogous areas, one would expect
the Secretary would have manifested this in-
tent forthrightly. Not only does the regulation
not do so, it employs examples that are en-
tirely consistent with title VII and ADEA
waiver requirements.8 The policies employed
in the title VII and ADEA contexts are there-
fore highly persuasive.
We interpret the regulation to apply only to
waivers of substantive rights under the FMLA,
rather than to claims for money damages, con-
sistent with public policy and the law under
similar regulatory regimes. In practice, this
may render the regulation applicable only to
current employees, as defendants suggest, but
we need not resolve that question. We there-
fore conclude that the regulation did not ren-
der Faris’s waiver of her claims under the
FMLA unenforceable.
III.
Defendants seek review of the denial of
their motion for summary judgment, arguing
that the release is enforceable because Faris
has not tendered back her payment for the re-
lease, precluding her from arguing misrepre-
sentation or duress. In Williams v. Phillips
Petroleum Co., 23 F.3d 930, 935 (5th Cir.
1994), we held that “[o]nce a party establishes
that his opponent signed a release that ad-
dresses the claims at issue, received adequate
consideration, and breached the release, the
opponent has the burden of demonstrating that
the release was invalid because of fraud, du-
ress, material mistake, or some other defense.”
But,
[e]ven if a release is tainted by misrepre-
sentation or duress, it is rat ified if the
6 (...continued)
rights under statutes enforced by the Commission,
which include the ADEA, title VII, the Americans
with Disabilities Act, and the Age Discrimination
in Employment Act. See EEOC NOTICE NO.
915.002 § I (Apr. 10, 1997). Though the
Commission “recognized that individuals possess
a non-waivable right to file charges with the
EEOC,” id. § III(A), it expressed its “support for
post-dispute agreements entered into knowingly
and voluntarily to settle claims of discrimination,”
id. § III(C) (emphasis added).
7 See Pettway v. Am. Cast Iron Pipe Co., 411
F.2d 998, 1005-06 (5th Cir. 1969) (employing the
FLSA and the NLRA in interpreting title VII, but
noting that reliance on other statutes “must nec-
essarily be guarded because the differences be-
tween those Acts and title VII may well outnumber
the similarities”); see also Smith, 273 F.3d at 1310
(“While cases decided under other employment
statutes prohibiting discrimination and retaliation
may be instructive, we must be attentive to the way
the statutes differ in their language, their purposes,
and their scope of protection.”) (citing Pettway).
8 Although no court has explicitly considered
the argument presented by Faris, two circuits have
allowed waiver of FMLA retaliation claims. See
Halvorson v. BSA, 2000 U.S. App. LEXIS 9648,
at *6 (6th Cir. 2000); Schoenwald v. ARCO Alas-
ka, Inc., 1999 U.S. App. LEXIS 20955, at *5 (9th
Cir. 1999).

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releasor retains the consideration after
learning that the release is voidable. A
person who signs a release, then sues his
or her employer for matters covered
under the release, is obligated to return
the consideration. Offering to tender
back the consideration after obtaining
relief in the lawsuit would be insufficient
to avoid a finding of ratification.
Id. at 937.
Although Faris does allege duress, it is un-
disputed that she received $4,063.32 for sign-
ing the release and has not tendered back the
consideration. The release is ratified. We
therefore REVERSE and RENDER judgment
for defendants.

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