In the

United States Court of Appeals

For the Seventh Circuit

Nos. 99-1089 and 99-3252

Jennifer Dormeyer,

Plaintiff-Appellant,

v.

Comerica Bank-Illinois, et al.,

Defendants-Appellees.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 96 C 4805--David H. Coar, Judge.

Argued February 11, 2000--Decided July 24, 2000

 Before Posner, Chief Judge, and Manion and Kanne,

Circuit Judges.

 Posner, Chief Judge. The plaintiff, who worked as

a teller for the defendant bank between April

1994 and February 1996, brought suit against the

bank and related entities unnecessary to discuss

charging violations of the Family and Medical

Leave Act, 29 U.S.C. sec.sec. 2601 et seq., the

Pregnancy Discrimination Act, 42 U.S.C. sec.

2000e(k), and the Fair Labor Standards Act, 29

U.S.C. sec.sec. 206(a), 207(a), 215(a)(2). There

were other charges as well, but they have fallen

by the wayside. The defendant made an offer of

judgment of $1,152 on the FLSA count (which

sought overtime pay), and this was accepted. The

district court granted summary judgment for the

defendant on the other counts. The plaintiff then

sought almost $35,000 in costs and attorneys’

fees under the FLSA, which the judge cut down to

$6,216. The appeals challenge both the dismissal

of the FMLA and PDA counts and the reduction in

the amount of fees awarded for the successful

prosecution of the FLSA count.

 The plaintiff had a problem of absenteeism. The

bank required her to attend a "coaching session"

to help her overcome the problem. That was in

August 1995. The problem continued and on January

26, 1996, roughly three weeks after she had

become pregnant, she received a written warning

about her excessive absences. She received a
second such warning on February 12 and a third on

February 21. All to no avail; she was AWOL again

on February 23 and 24 and was fired two days

later.

 Of a total of 20 unexcused absences between

March 6, 1995, and the date of her discharge,

nine occurred after she became pregnant, and she

attributes these absences to severe morning

sickness, although there is little medical

substantiation of this attribution. On January 8,

1996, shortly after she became pregnant, she

requested leave under the FMLA on the basis of

her morning sickness. The defendant did not

respond to the request, and this nonresponse is

the basis of her FMLA claim. Although it is

conceded that she did not satisfy the requirement

for eligibility for leave under the Act that she

have worked at least 1,250 hours during the 12

months preceding the day on which she wanted to

take family leave, 29 U.S.C. sec. 2611(2)(A)(ii)

(it is unclear by how much she fell short), she

appeals to a regulation of the Department of

Labor that waives statutory eligibility in cases

in which the employer fails to respond promptly

to a request for family leave. The regulation

provides, so far as bears on this case, that "if

the employer fails to advise the employee whether

the employee is eligible [for family leave] prior

to the date the requested leave is to commence,

the employee will be deemed eligible." 29 C.F.R.

sec. 825.110(d).

 As several district courts have found (there are

no appellate decisions), the regulation is

invalid. E.g., McQuain v. Ebner Furnaces, Inc.,

55 F. Supp. 2d 763, 773-76 (N.D. Ohio 1999);

Seaman v. Downtown Partnership of Baltimore,

Inc., 991 F. Supp. 751, 754 (D. Md. 1998); Wolke

v. Dreadnought Marine, Inc., 954 F. Supp. 1133,

1135-38 (E.D. Va. 1997). Although the Department

of Labor has, like other administrative agencies,

the authority to issue regulations to carry out

the duties that Congress has assigned to it in

the Family and Medical Leave Act, 29 U.S.C. sec.

2654, it has no authority to change the Act. But

that is what the regulation tries to do. It does

not address an interpretive issue that the

statute leaves open, and so the principle of the

Chevron case is not in play. E.g., Chevron

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

Council, 467 U.S. 837, 842-44 (1984); INS v.

Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999);

NLRB. v. GranCare, Inc., 170 F.3d 662, 666 (7th

Cir. 1999) (en banc); City of Chicago v. FCC, 199

F.3d 424, 428 (7th Cir. 1999). The statutory text

is perfectly clear and covers the issue. The

right of family leave is conferred only on

employees who have worked at least 1,250 hours in

the previous 12 months. Yet under the regulation
a worker who had worked 8 hours before seeking

family leave would be entitled to family leave if

the employer neglected to inform the employee

promptly that he or she was ineligible. And this

regardless of whether the employee had incurred

any detriment as a result of the employer’s

silence.

 The last point is critical. If detrimental

reliance were required, the regulation could be

understood as creating a right of estoppel

(specifically a right to estop, that is, forbid,

the employer to raise a defense of ineligibility

for the statutory benefits), and such a right

might be thought both consistent with the statute

and a reasonable method of implementing it, and

so within the Department’s rulemaking powers.

Like other equitable doctrines, the doctrine of

estoppel is invoked in a variety of statutory

contexts without reference to particular

statutory language. True, if the statute creates

or excludes a right to plead estoppel, the

creative power of the administering court or

agency is suspended. But there is nothing in the

Family Leave and Medical Act that relates to

misleading eligibility notices or absences of

notice; so far as notice is concerned, the

statute merely requires the employer to post a

general summary of the Act in the workplace. 26

U.S.C. sec. 2619. We do not read this provision

to exclude the application of the doctrine of an

estoppel in an appropriate case. And so an

employer who by his silence misled an employee

concerning the employee’s entitlement to family

leave might, if the employee reasonably relied

and was harmed as a result, be estopped to plead

the defense of ineligibility to the employee’s

claim of entitlement to family leave. See, e.g.,

Rager v. Dade Behring, Inc., 210 F.3d 776, 778-79

(7th Cir. 2000); Athmer v. C.E.I. Equipment Co.,

121 F.3d 294, 296-97 (7th Cir. 1997); General

Electric Capital Corp. v. Armadora, S.A., 37 F.3d

41, 45 (2d Cir. 1994).

 The plaintiff has made no effort to establish

the elements of an estoppel, however, and anyway

the regulation on which she relies to avoid the

1,250-hours requirement is not limited to

circumstances in which an employer might be

estopped to deny eligibility because his conduct

had induced detrimental reliance by the employee.

The regulation allows an employee to claim

benefits to which she is not entitled as a matter

of law or equity, thus conferring a windfall by

extinguishing the employer’s defense without any

basis in legal principle. The challenged

regulation is not only unauthorized; it is

unreasonable.

 We move on to the plaintiff’s claim under the
Pregnancy Discrimination Act. The Act forbids

discrimination against an employee on account of

her being pregnant, and of such discrimination

the only evidence in this case, evidence that

falls short of making out a case that can

withstand summary judgment for the employer, is

some ugly comments about the plaintiff’s

pregnancy made by an employee who was not in the

chain of command of the plaintiff and did not (so

far as appears) influence in any way the decision

to fire her. "The fact that someone who is not

involved in the employment decision of which the

plaintiff complains expressed discriminatory

feelings is not evidence that the decision had a

discriminatory motivation." Hunt v. City of

Markham, No. 99-1331, 2000 WL 968540, at *2 (7th

Cir. July 11, 2000) (emphasis in original).

Compare Sheehan v. Donlen Corp., 173 F.3d 1039,

1044-45 (7th Cir. 1999).

 The plaintiff was fired because of her

absenteeism, not because of her pregnancy. There

was a relation, insofar as some of the absences

may have been due to morning sickness, which was,

of course, a consequence of her pregnancy. But

the Pregnancy Discrimination Act does not protect

a pregnant employee from being discharged for

being absent from work even if her absence is due

to pregnancy or to complications of pregnancy,

unless the absences of nonpregnant employees are

overlooked. Troupe v. May Dept. Stores Co., 20

F.3d 734, 738-39 (7th Cir. 1994); Marshall v.

American Hospital Ass’n, 157 F.3d 520, 526 (7th

Cir. 1998); Armindo v. Padlocker, Inc., 209 F.3d

1319 (11th Cir. 2000) (per curiam); In re

Carnegie Center Associates, 129 F.3d 290, 296-97

(3d Cir. 1997); Fisher v. Vassar College, 70 F.3d

1420, 1448 (1995) reheard en banc on other

grounds, 114 F.3d 1332 (2d Cir. 1997). And of

that there is no evidence.

 It might seem that a company’s policy on

absenteeism might be attacked from the direction

of disparate impact, a permissible theory of

liability under the Pregnancy Discrimination Act,

e.g., Troupe v. May Dept. Stores Co., supra, 20

F.3d at 738; Scherr v. Woodland School Community

Consolidated Dist. No. 50, 867 F.2d 974, 979 (7th

Cir. 1988); Lang v. Star Herald, 107 F.3d 1308,

1314 (8th Cir. 1997); Garcia v. Woman’s Hospital

of Texas, 97 F.3d 810, 813 (5th Cir. 1996), if it

could be shown that the policy weighed more

heavily on pregnant employees than on nonpregnant

ones and that it was not justified by compelling

considerations of business need. But such an

argument would not succeed. The concept of

disparate impact was developed and is intended

for cases in which employers impose eligibility

requirements that are not really necessary for

the job for which the applicant is being hired,
such as requiring that applicants for a job as a

dishwasher have a high school education. The

statute makes this clear, see 42 U.S.C. sec.

2000e-2(k)(1)(A)(i) ("an unlawful employment

practice based on disparate impact is established

under this subchapter only if a complaining party

demonstrates that a respondent uses a particular

employment practice that causes a disparate

impact on the basis of race, color, religion,

sex, or national origin and the respondent fails

to demonstrate that the challenged practice is

job related for the position in question and

consistent with business necessity"), as do the

cases interpreting it. See, e.g., Finnegan v.

Trans World Airlines, Inc., 967 F.2d 1161, 1164

(7th Cir. 1992) ("the concept of disparate impact

was developed for the purpose of identifying

situations where, through inertia or

insensitivity, companies were following policies

that gratuitously--needlessly--although not

necessarily deliberately, excluded black or

female workers from equal employment

opportunities"); Lanning v. Southeastern

Pennsylvania Transportation Authority, 181 F.3d

478, 489 (3d Cir. 1999) ("a discriminatory cutoff

score is impermissible unless shown to measure

the minimum qualifications necessary for

successful performance of the job in question").

The argument here is not that the employer has

adopted rules or practices that arbitrarily

exclude pregnant women, but that the employer

should be required to excuse pregnant employees

from having to satisfy the legitimate

requirements of their job. It is an argument for

subsidizing a class of workers, and the concept

of disparate impact does not stretch that far.

Troupe v. May Department Stores Co., supra, 20

F.3d at 738; Urbano v. Continental Airlines,

Inc., 138 F.3d 204, 207-08 (5th Cir. 1998);

Armstrong v. Flowers Hospital, Inc., 33 F.3d

1308, 1317 (11th Cir. 1994). Nor would pregnant

women, or women in general, benefit from such a

stretch. Firms would be deterred from employing

women of childbearing age if required to overlook

the inability of a particular woman, because of

complications of pregnancy, to do the work for

which she had been hired.

 We turn to the plaintiff’s appeal from the award

of attorneys’ fees, which she contends was too

meager. Her appeal brief (there is no reply

brief) is a remarkable document. It is only five

pages long, of which the argument section

occupies not quite two pages entirely given over

to truisms and conclusions. The perfunctory

character of the appeal, which alone would

justify an affirmance, Kelly v. EPA, 203 F.3d

519, 522 (7th Cir. 2000); Jones Motor Co. v.

Holtkamp, Liese, Beckemeier & Childress, P.C.,

197 F.3d 1190, 1192 (7th Cir. 1999); JTC
Petroleum Co. v. Piasa Motor Fuels, Inc., 190

F.3d 775, 780-81 (7th Cir. 1999), is remarkable

rather than merely lamentable because of the

serious accusations made by the district judge

against the plaintiff’s attorney, Ernest T.

Rossiello, in support of the judge’s decision to

cut down the fees and costs sought by some 80

percent. Citing several previous judicial

opinions criticizing (in one case actually

sanctioning) Mr. Rossiello for his fee requests

or affirming stiff cuts in the requested fees,

Shea v. Galaxy Lumber & Const. Co., Ltd., No. 94

C 906, 1999 WL 138791, at *3 (N.D. Ill. Mar. 2,

1999) ("this case is not the first time a federal

district court has suspected a possible

manipulation or abuse of billing practices with

regard to Shea’s counsel [Rossiello] in a FLSA

case"); Herrejon v. Appetizers And, Inc., No. 97

C 5149, 1999 WL 116598, at *1 (N.D. Ill. Feb. 22,

1999); Campbell v. HSA Managed Care Systems,

Inc., No. 97 C 1622, 1998 WL 417505 (N.D. Ill.

July 21, 1998); Uphoff v. Elegant Bath, Ltd., 176

F.3d 399, 406-11 (7th Cir. 1999); Spegon v.

Catholic Bishop of Chicago, 175 F.3d 544 (7th

Cir. 1999), but missing still others (again

including one case in which he was actually

sanctioned), e.g., Connolly v. National School

Bus Service, Inc., 177 F.3d 593, 598 (7th Cir.

1999); Scott v. Sunrise Healthcare Corp., No. 95

C 1277, 1999 WL 787624, at *5 (N.D. Ill. Sep. 23,

1999) ("The fee petition in this case, seeking

$100,000 in fees and costs for a $600 recovery

is, to put in mildly, unreasonable and

irresponsible. The amount requested is absurd. No

effort has been made by plaintiff’s counsel to

segregate the fees attributable to the successful

FLSA claim"), the judge accused Rossiello, just

as the judge in Scott had done, of engaging in

the dishonest practice of joining to small valid

claims, here the plaintiff’s FLSA claim, large

invalid and even frivolous claims, and seeking a

large award of attorneys’ fees for services

ostensibly devoted to the small claim but

actually devoted to the large.

 In his application for fees, Rossiello allocated

124 hours, constituting half the total time that

he and his associates put in on the plaintiff’s

entire case, to the FLSA claim, even though it

was a tiny claim which required little more than

the record of the days and hours worked by the

plaintiff and which the defendant did not resist.

The defendants had made an offer of judgment for

the full amount sought before trial, which the

plaintiff accepted. And before the offer was made

the parties had engaged in only the most limited

discovery on the claim, consisting of one request

for documents, a single interrogatory, and ten or

so minutes of deposition time. The judge was

rightly aghast at the allocation of half the
total lawyer time to the FLSA claim. A similar

problem attended Rossiello’s allocation of costs.

 In his appeal brief, Rossiello (who signed the

brief) does not deny the judge’s accusations.

Although he complains without elaboration that

the judge should have allowed him a higher hourly

fee, he says nothing about the judge’s accusing

him of submitting what amounts to a fraudulent

claim of attorneys’ fees and of doing this,

moreover, in case after case. In these

circumstances of confession by silence to serious

charges of professional misconduct, we not only

affirm the district court’s order denying

Rossiello the fees and costs sought; we also

order him to show cause within 14 days of the

date of this order why he should not be

sanctioned for filing a frivolous appeal from the

district court’s fee order. Fed. R. App. P. 38;

Mars Steel Corp. v. Continental Bank N.A., 880

F.2d 928, 938 (7th Cir. 1989) (en banc); United

States v. Insurance Consultants of Knox, Inc.,

187 F.3d 755, 761-62 (7th Cir. 1999). In addition

we are referring the question of his improper and

possibly fraudulent billing practices to the

executive committee of the United States District

Court for the Northern District of Illinois to

consider whether to institute disciplinary

proceedings against him.

Affirmed.