FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOVEMBER 27, 2001

THOMAS K. KAHN

CLERK

*

Honorable Maurice M. Paul, U.S. District Judge for the Northern District of Florida,

sitting by designation.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 00-15708

________________________

D. C. Docket No. 99-01720-CV-H-S

ARTHUR LEROY SMITH,

Plaintiff-Appellant,

versus

BELLSOUTH TELECOMMUNICATIONS, INC.,

Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Northern District of Alabama

_________________________

(November 27, 2001)

Before EDMONDSON and WILSON, Circuit Judges, and PAUL*

, District Judge.

WILSON, Circuit Judge:

This appeal presents an issue of first impression in this Circuit: whether a

former employee who alleges that his employer retaliated against him in its
2

decision not to rehire him should be considered an “employee” under the

enforcement provision of the Family and Medical Leave Act of 1993 (FMLA) that

provides for a private right of action “against any employer . . . by any one or more

employees.” 29 U.S.C. § 2617(a)(2). The district court held that Arthur Leroy

Smith, a former BellSouth employee who applied for reemployment, lacked

standing to bring suit because the FMLA affords a private right of action only to

individuals who suffer adverse action while they are employed. Because we find

that the provision of the FMLA that provides a right of action to “employees” is

ambiguous, and that the Department of Labor regulation interpreting the FMLA to

protect former employees from discrimination in hiring decisions is reasonable, we

must afford this regulation deference. We therefore reverse.

BACKGROUND

Smith appeals the district court’s grant of summary judgment in favor of

BellSouth on Smith’s FMLA claim. Smith resigned his position as a BellSouth

service representative in October of 1998. While employed by BellSouth, he had

taken leave under the FMLA. When he reapplied with BellSouth in January of

1999, BellSouth staffing manager Tira Knockett pulled Smith’s file and saw that it

was marked “Not eligible for rehire.” Knockett called one of Smith’s former

supervisors to discuss why he was not eligible for rehire. She took notes during
3

that conversation, and wrote, “Per [manager]. Took a lot of FMLA, attendance

bad, work ethic bad, abusive, temperamental.” In large letters at the bottom of her

notes, she wrote and underlined, “Do Not Rehire.” Smith’s former supervisor,

Jeremy Duncan, said that he recommended against Smith’s rehire because of

Smith’s poor attendance. The manager of Smith’s group, Gary Jordan, said that

Smith’s attendance problems were “[t]he only reason that he would not have been

rehired.”

 Smith brought suit, alleging race discrimination and violations of the FMLA

in BellSouth’s decision not to rehire him. The district court granted BellSouth’s

motion for summary judgment on the race discrimination claims, but asked the

parties to submit briefs addressing whether the FMLA’s prohibition against

retaliation applied to hiring decisions. The district court then granted BellSouth’s

motion for summary judgment on the FMLA claims, holding that because the

FMLA provided a private right of action to “employees” and Smith was not

employed by BellSouth when it decided not to rehire him, Smith lacked standing to

bring suit. Smith v. BellSouth Telecomm., Int’l, Inc., 117 F. Supp. 2d 1213,

1216–17 (N.D. Ala. 2000).

STANDARD OF REVIEW 
4

We review a grant of summary judgment de novo. Hilburn v. Murata Elecs.

N. Am., Inc., 181 F.3d 1220, 1225 (11th Cir. 1999). Summary judgment is proper

when “there is no genuine issue as to any material fact and . . . the moving party is

entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). Much of this case

turns on statutory interpretation – a question of law we also review de novo. 

United States v. Hooshmand, 931 F.2d 725, 737 (11th Cir. 1991). 

DISCUSSION

The FMLA entitles a covered employee to take up to twelve weeks of leave

in a twelve-month period for the birth or adoption of a child, or the “serious health

condition” of the employee or the employee’s child, spouse, or parent. Id. §

2612(a)(1). To protect this right, the FMLA prohibits an employer from

interfering with an employee’s attempt to exercise his leave right or retaliating

against an employee for opposing practices made unlawful under the FMLA. Id. §

2615. If an employer engages in these prohibited acts, the FMLA allows “any one

or more employees” to bring suit for damages or equitable relief. Id. § 2617(a)(2). 

The district court found that Congress’s intent was clear from the statute

itself – when Congress authorized a private right of action for “employees,” it

meant only those employees who suffered adverse action at the time they were

employed. Smith, 117 F. Supp. 2d at 1217–18. Since Smith had resigned, the
1

The regulation provides, “An employer is prohibited from discriminating against

employees or prospective employees who have used FMLA leave. . . . [E]mployers cannot use

the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions

or disciplinary actions . . . .” 29 C.F.R. § 825.220(c). The regulation was issued under the

authority of 29 U.S.C. § 2654, which provides, “The Secretary of Labor shall prescribe such

regulations as are necessary to carry out” the statute.

Because we quoted a portion of this regulation with approval in Brungart v. BellSouth

Telecommunications, Inc., 231 F.3d 791, 798 (11th Cir. 2000), cert. denied, __ U.S. __, 121 S.

Ct. 1998 (2001) (stating “‘[a]n employer is prohibited from discriminating against employees or

prospective employees who have used FMLA leave’”), Smith argues that we are bound by

Brungart to hold that the FMLA bars discrimination against prospective employees. However,

since the plaintiff in Brungart was a current employee at the time of the alleged violation, the

issue of whether FMLA protection extends to a former employee who has applied for

reemployment was not before the court. Since the Brungart language relating to prospective

employees is dicta, we are free to give the issue fresh consideration here. Great Lakes Dredge &

Dock Co. v. Tanker Robert Watt Miller, 957 F.2d 1575, 1578 (11th Cir. 1992). 

5

district court found, he was not an “employee” when BellSouth decided not to

rehire him, and therefore had no standing to bring suit under the FMLA. Id. at

1217–18. Finding no ambiguity in the statute, the district court declined to afford

deference to the Department of Labor regulation interpreting the FMLA to prohibit

employers from using an employee’s past use of FMLA leave as a negative factor

in hiring decisions.1

 Id. at 1216–18. The district court viewed the regulation as an

invalid attempt to expand the protection of the statute beyond its clear meaning. 

Id. at 1216.

The First Circuit, the only circuit court of appeals to date that has addressed

this issue, reached the opposite conclusion on similar facts in Duckworth v. Pratt &

Whitney, Inc., 152 F.3d 1 (1st Cir. 1998). Duckworth likewise involved a former
2

While Smith resigned, the plaintiff in Duckworth volunteered for a layoff. 152 F.3d at 4.

Although the district court distinguished Duckworth on this ground, we see no reason why this

minor difference would justify a different result. BellSouth’s counsel acknowledged at oral

argument that while there are minor distinctions between this case and Duckworth, we would

have to fundamentally disagree with the reasoning in Duckworth for BellSouth to prevail on this

issue.

6

employee who alleged that his former employer violated the FMLA by refusing to

rehire him based on his past use of FMLA leave.2

 Id. at 2–3. After examining the

language of the FMLA and comparing it to similar statutes, the First Circuit

decided that the term “employee” was ambiguous and was not clearly limited to

current employees. Id. at 9. The court afforded deference to the Department of

Labor regulation interpreting the FMLA to prohibit an employer from taking

FMLA leave into account in hiring decisions. Id. at 11. To define “employee”

narrowly such that a former employee who alleges discrimination in the decision

not to rehire him lacks standing to bring suit under the FMLA would frustrate the

purposes of the Act. Id. at 10–11. “That interpretation would permit an employer

to evade the Act by blacklisting employees who have used leave in the past or by

refusing to hire prospective employees if the employer suspects they might take

advantage of the Act.” Id. at 11.

In this case, the district court rejected the Duckworth approach, based in part

on a misunderstanding that Duckworth was decided under a broader definition of

“employee.” Smith, 117 F. Supp. 2d at 1216 n.7. For the reasons set forth below,
7

we join the First Circuit in holding that a former employee who alleges his former

employer refused to rehire him based on his past use of FMLA leave qualifies as

an “employee” under § 2617(a)(2).

I

The two-step process set out in Chevron U.S.A. Inc. v. N.R.D.C., 467 U.S.

837, 842–45 (1984), guides us in determining whether to afford deference to an

agency regulation interpreting a statute the agency is charged with administering. 

First, we ask “whether Congress has directly spoken to the precise question at

issue.” Id. at 842. If the will of Congress is clear from the statute itself, our

inquiry ends – “the court, as well as the agency, must give effect to the

unambiguously expressed intent of Congress.” Id. at 842–43. “[I]f the statute is

silent or ambiguous,” however, we next ask whether the agency’s construction of

the statute is reasonable. Id. at 843–44. “[A] court may not substitute its own

construction of a statutory provision for a reasonable interpretation made by the

administrator of an agency.” Id. at 844. To determine whether the statutory

language is ambiguous, we consider “the language itself, the specific context in

which that language is used, and the broader context of the statute as a whole.”

Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997).
3

While the Robinson court was writing in the Title VII context, it explored some of the

same words at issue here – a definition of employee as an “individual employed by an

employer.” 519 U.S. at 342 (interpreting the definition of employee at 42 U.S.C. § 2000e(f)).

8

Addressing the first prong of the Chevron inquiry – whether the FMLA

provision providing a right of action to “employees” is ambiguous – we begin by

examining the language in the enforcement provision itself. Section 2617(a)(2)

affords a private right of action to “any one or more employees.” The district court

concluded that with this language, the FMLA unambiguously “provides a limited

enforcement mechanism” only for those individuals “who were in an employment

relationship with a defendant at the time the alleged violation of the right

occurred.” Smith, 117 F. Supp. 2d at 1217. The United States Supreme Court

recognized in Robinson that it might seem natural, at first glance, to read the term

“employee” to mean only current employees.3

 519 U.S. at 341. However, like the

Robinson court, we find that this initial impression yields under closer analysis. 

After considering the statutory definition of employee that the FMLA adopted

from the FLSA and the expansive interpretation courts have given the term

“employee” in other statutes with similar definitions, we find the term “employee”

in the enforcement provision of the FMLA to be ambiguous.

The FMLA defines the term “employee” by reference to the definition in the

Fair Labor Standards Act (FLSA), which states, “the term ‘employee’ means any
4

Courts and commentators acknowledge that this definition of employee, by itself,

explains little. E.g., Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992) (stating that

the same definition of employee in the Employee Retirement Income Security Act (ERISA), 29

U.S.C. § 1002(6), “is completely circular and explains nothing”); Richard R. Carlson, Why the

Law Still Can’t Tell an Employee When It Sees One and How It Ought to Stop Trying, 22

Berkeley J. Emp. & Lab. L. 295, 296 (2001) (describing the FLSA definition of employee as

“baffling in defining who is an ‘employee’ or what constitutes ‘employment’”). 

5

The legislative history of the FMLA indicates that when Congress chose to incorporate

the FLSA definition, it acknowledged the definition’s broad scope. S. Rep. No. 103-3, at 25–26

(1993), reprinted in 1993 U.S.C.C.A.N. 3, 25 (“The term ‘employee’ is defined . . . as having the

same meaning given such term in . . . the FLSA. This definition is broadly inclusive . . . .”). 

9

individual employed by an employer.” 29 U.S.C. § 203(e)(1).4 This definition of

employee does not necessarily exclude Smith, since it could be read as referring to

someone who previously had been employed by an employer as well as someone

who currently is employed. See Robinson, 519 U.S. at 342 (stating that the Title

VII definition of employee as “‘an individual employed by an employer’” is

“consistent with either current or past employment”).

The broad interpretation courts have given to the term employee under the

FLSA and other statutes with similar definitions further militates against a finding

that the term “employee” unambiguously refers only to current employees. When

Congress chose to incorporate the FLSA definition of employee into the FMLA, it

presumably was aware of how broadly courts had interpreted the FLSA definition.5

See Lorillard v. Pons, 434 U.S. 575, 581 (1978) (“[W]here, as here, Congress

adopts a new law incorporating sections of a prior law, Congress normally can be
6

We reject BellSouth’s contention that we should not treat Carriage Carpet Co. as

persuasive authority regarding the scope of the FLSA definition of employee because it was

decided under broader definition of employee. Although the complained of conduct in Carriage

Carpet Co. occurred when the definition of employee in FLSA provided “‘[e]mployee’ includes

any individual employed by an employer,” which in 1974 was amended to “‘employee’ means

any individual employed by an employer,” 548 F.2d at 142, the legislative history of the 1974

amendments indicates that the amendments were meant to expand – not narrow – the coverage of

the Act. H.R. Rep. No. 93-913 (1974), reprinted in 1974 U.S.C.C.A.N. 2811, 2811. The

Carriage Carpet Co. court considered the 1974 amendments and decided that since the

amendments were meant to expand the coverage of the FLSA and nothing in the House reports

explained the reasons for the change, the substitution of “means” for “includes” was of “no

particular significance.” 548 F.2d at 142. 

10

presumed to have had knowledge of the interpretation given to the incorporated

law, at least insofar as it affects the new statute.”). The Supreme Court has

described the FLSA definition that Congress chose to incorporate into the FMLA 

as “exceedingly broad,” Tony & Susan Alamo Found. v. Sec’y of Labor, 471 U.S.

290, 295 (1985), and has stated that “[a] broader or more comprehensive coverage

of employees within the stated categories would be difficult to frame,” United

States v. Rosenwasser, 323 U.S. 360, 362 (1945).

The breadth of the FLSA definition of “employee” was considered and

relied upon by the Sixth Circuit in Dunlop v. Carriage Carpet Co., 548 F.2d 139,

142 (6th Cir. 1977), holding that a former employee who voluntarily left his

employment was still an “employee” under the antidiscrimination provisions of the

FLSA.6

 In Carriage Carpet Co., a former employee learned that his former

employer, Carriage Carpet Co., told a prospective employer that the former
11

employee had filed a complaint against Carriage Carpet Co. for its failure to pay

overtime. Id. at 141. Carriage Carpet Co. claimed that since the former employee

was not covered by the protection the FLSA extended to “employees” because he

had resigned. Id. The Sixth Circuit disagreed, stating, “There is nothing in the

language or history of this Act to indicate that Congress intended to penalize

dissatisfied employees who voluntarily leave an employer by thereafter denying

them the protections of [the Act]. There is every reason to conclude precisely the

contrary.” Id. at 147. Cf. Hodgson v. Charles Martin Inspectors of Petroleum,

Inc., 459 F.2d 303, 306 (5th Cir. 1972) (Addressing whether former employees

who assisted in an FLSA investigation should be protected under the informer’s

privilege, the court stated that “[t]here is no ground for affording any less

protection to defendant’s former employees than to its present employees.”)

The term “employee” also received an expansive interpretation in the Title

VII context. See Robinson, 519 U.S. at 346. In Robinson, a former employee

alleged that his former employer retaliated against him for filing a discrimination

charge by giving a negative reference to a prospective employer. Id. at 339. The

Title VII antiretaliation provision prohibits an employer from discriminating

against “employees or applicants for employment” who have opposed unlawful

employment practices, but makes no explicit mention of whether the same
12

protection is provided to former employees. 42 U.S.C. § 2000e-3(a). After

considering that the Title VII definition of employee – “an individual employed by

an employer” – “lacks any temporal qualifier” that would limit the term to current

employees, and finding that one of the Title VII remedies – reinstatement – was

inconsistent with the interpretation that employee refers only to current employees,

the Court decided that the term “employee” was ambiguous. Robinson, 519 U.S. at

342. The Court chose to interpret the term to include former employees, because

providing no remedy for post-employment retaliation would allow an employer “to

retaliate with impunity” against former employees who brought Title VII claims. 

Id. at 346. This would defeat “a primary purpose of antiretaliation provisions:

Maintaining unfettered access to statutory remedial mechanisms.” Id.

Likewise, in employment laws prohibiting discrimination and retaliation in

other contexts, courts have concluded that the term “employee” is not limited to

current employees. The antiretaliation provision of the Age Discrimination in

Employment Act (ADEA), 29 U.S.C. § 621–634, prohibits an employer from

discriminating “against any of his employees or applicants for employment” who

have opposed practices made unlawful by the ADEA, 29 U.S.C. § 623(d), with

“employee” defined as “an individual employed by any employer.” 29 U.S.C. §

630(f). Courts have interpreted this definition of “employee” to include former
13

employees who suffer post-employment retaliatory conduct. E.g. Passer v. Am.

Chem. Soc’y, 935 F.2d 322, 330 (D.C. Cir. 1991) (holding that a former employee

who alleged post-employment retaliation was still an “employee” and remained

protected by the ADEA); EEOC v. Cosmair, Inc., 821 F.2d 1085, 1088 (5th Cir.

1987) (stating that under the ADEA antiretaliation provision, “[t]he term

‘employee’ . . . is interpreted broadly: it includes a former employee as long as the

alleged discrimination is related to or arises out of the employment relationship”).

The term “employee” also has been given an expansive reading under the

National Labor Relations Act, 29 U.S.C. § 151–188. See, e.g., N.L.R.B. v. George

D. Auchter Co., 209 F.2d 273, 277 (5th Cir. 1954) (“We think that the word

‘employee’ is broad enough to include, and does include, a job applicant who is

discriminately denied employment . . . .”). 

 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.

See Pettway v. Am. Cast Iron Pipe Co., 411 F.2d 998, 1005–06 (5th Cir. 1969)

(looking to the FLSA and the NLRA for guidance in interpreting Title VII, but

noting that reliance on other statutes “must necessarily be guarded because the

differences between those Acts and Title VII may well outnumber the
14

similarities”). The term “employee” may have different meanings in different acts,

or even in different provisions of the same act. See Robinson, 519 U.S. at 341.

Thus, we must carefully examine the way the term “employee” is used in context

to determine if other provisions of the FMLA, or the structure of the FMLA as a

whole, provide a clear answer to the question of whether a former employee who

alleges that his employer retaliated against him in its decision not to rehire him is

an “employee” with standing to bring suit. 

BellSouth argues that the use of the phrase “eligible employee” in the FMLA

evinces clear congressional intent to limit the right to bring a private action to

individuals in an employer-employee relationship at the time of the alleged

violation. The FMLA defines “eligible employee” as “an employee who has been

employed – (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). The term “eligible employee” does not appear in the prohibited acts

section, which prohibits discrimination against “any individual” for opposing

employment practices made unlawful by the FMLA. 29 U.S.C. § 2615(a)(2). The

provision providing for a private right of action also does not use the term “eligible

employee,” but instead states that “any one or more employees” may bring suit. Id.
15

§ 2617(a)(2). The term “eligible employee” does, however, reappear in the section

describing employer liability in a civil action by employees, which provides that an

employer who violates the FMLA “shall be liable to any eligible employee

affected” for damages or equitable relief. Id. § 2617(a)(1).

BellSouth argues that the phrase “eligible employee” differentiates the

FMLA from statutes such as Title VII or the ADEA – while Title VII and the

ADEA define the scope of protection based on characteristics of the employee, the

FMLA defines the scope of protection based on the existence of a particular

employer-employee relationship. BellSouth argues that the FMLA’s focus on the

existence of a particular employer-employee relationship means Congress did not

intend to provide a right of action to an employee who suffers discrimination or

retaliation after the employer-employee relationship ends. BellSouth cites Brohm

v. JH Properties, Inc., 149 F.3d 517 (6th Cir. 1998), and Wenzlaff v. NationsBank,

940 F. Supp. 889 (D. Md. 1996), to support this view. Both of these cases are

distinguishable from the case at hand.

In Brohm, a former employee alleged that his employer violated the FMLA

by refusing to provide medical leave and refusing to allow him to return after

treatment for a medical condition. 149 F.3d at 523. The district court found that

there was no FMLA violation because the former employee never requested leave
16

prior to his termination. Id. Affirming, the Sixth Circuit stated, “[T]he statute

affords a remedy only to eligible employees. Brohm was not an ‘eligible employee’

at the time he received medical attention for his condition. He had already been

terminated a week earlier.” Id. (citation omitted). While BellSouth argues that this

case stands for the broad proposition that all FMLA rights cease after the

termination of employment, the Sixth Circuit did not address the question of

discrimination resulting from the exercise of leave rights; it instead addressed the

right to take leave, which obviously cannot be exercised after the termination of an

employment relationship.

 In Wenzlaff, the plaintiff, who had been terminated, claimed that her

employer violated the FMLA by continuing “to deny her jobs comparable to her

previous job and to offer her inferior jobs.” 940 F. Supp. at 892. In her complaint,

the plaintiff alleged that her employer violated the FMLA by telling her, after she

returned from pregnancy leave, that her position was no longer available. Id. The

defendant filed a motion to dismiss because the alleged violation occurred outside

the two-year statute of limitations. In response, the plaintiff claimed that her action

was not time-barred, because after she stopped working for the defendant, the
7

BellSouth relies on cases similar to Wenzlaff in arguing that Smith’s claims should be

barred by the release he signed when he resigned, waiving his right to sue on any then-existing

claims. BellSouth relies, for instance, on Burnam v. Amoco Container Co., 755 F.2d 893,

894–95 (11th Cir. 1985) (per curiam), where a plaintiff whose discriminatory discharge claim

was time-barred attempted to circumvent the ADEA’s time limitations by claiming that the

refusal to rehire her was a new act of discrimination. Here, the district court properly

distinguished Burnam in its order granting partial summary judgment on Smith’s race

discrimination claims, since Smith voluntarily resigned and was not trying to resurrect a timebarred discriminatory discharge claim. We agree with the district court’s conclusion that the

release did not waive Smith’s right to sue for BellSouth’s subsequent post-termination conduct. 

17

defendant continued to deny her comparable jobs.7 Id. The court rejected this

attempt to avoid the FMLA’s statute of limitations, stating that the plaintiff “takes

a novel position” in arguing that the FMLA provides a remedy for violations that

occur after the employer-employee relationship has terminated, and finding that

“the statutory language implicitly limits the scope of any violation to interactions

between individuals sharing an employer-employee relationship at the time of the

alleged violation.” Id. 

While Brohm and Wenzlaff might offer some support for reading “eligible

employee” to mean the right to bring suit under the FMLA is limited to those who

suffer adverse employment action during their employment, other readings are

possible, and given the statute’s remedial purpose, perhaps more reflective of

congressional intent. We find the First Circuit’s rationale in Duckworth to be more

persuasive and more applicable to the issue at hand.
18

In Duckworth, the First Circuit rejected an employer’s argument that the use

of the phrase “eligible employee” indicates Congress intended that only individuals

who were employed at the time of the alleged violation could bring suit.

[The employer’s] argument necessarily assumes that the employee

must be “eligible” at the time of the adverse action, rather than at the

time the employee wishes to take leave. This reading is far from

mandated by the statute’s language, and strikes us as unlikely. The

statute makes any employer “liable to any eligible employee affected”

by a violation of the Act. This language, read naturally, means that an

employee must be “eligible” at some time and that he or she must

have been “affected” by the employer’s action. The statute does not

make clear whether . . . there is any required temporal connection

between “eligible” and “affected.”

152 F.3d. at 8 (quoting 29 U.S.C. § 2617(a)(1)). In part because courts have

arrived at different understandings of the implications of this phrase, we cannot say

that the “eligible employee” language unmistakably indicates congressional intent

to allow only those individuals who suffer adverse employment action while

presently employed to bring suit. 

If the “eligible employee” provision does not provide a clear answer to

whether Congress intended to afford a private right of action to an individual such

as Smith, the provision describing the equitable remedies available under the

FMLA – “employment, reinstatement, and promotion” – only adds to the

ambiguity. 29 U.S.C. § 2617(a)(1)(B). If Congress intended to limit the right to

bring suit under the FMLA to current employees, the inclusion of “employment” as
19

an equitable remedy is puzzling. The Duckworth court found that equitable

remedies available under the FMLA indicate that Congress intended an expansive

interpretation of the term “employee.” 152 F.3d at 8–9. “[E]ach of the three

remedies most naturally refers to employees who are in different temporal

circumstances – one ‘promot[es]’ a current employee, one ‘reinstate[s]’ a former

employee, and one ‘employ[s]’ a prospective employee.” Id. at 8 (second, third,

and fourth alterations in original).

BellSouth argues that such a broad interpretation of employee is not

mandated by the remedies provision, because both “reinstatement” and

“employment” can be read as remedies for current employees. On return from

protected leave, a current employee is entitled to either return to his previous

position or, alternatively, to be given an equivalent position. 29 U.S.C. § 2614(a). 

If returning to the previous position is “reinstatement,” BellSouth argues, then

returning to an equivalent position is “employment.” Though it might be possible

to read the remedy of “employment” to be a shorthand reference to a current

employee’s right to be placed in an equivalent position on return from leave, this

seems to be quite a stretch from the way the word “employment” is generally used.

BellSouth next urges that the congressional intent to exclude former

employees and prospective employees can be gleaned by the words that Congress
20

left out of the FMLA. If Congress intended for someone such as Smith to have

standing to bring suit, BellSouth urges, Congress would have expressly singled out

“job applicants” for protection as it did in Title VII and the ADEA. We are wary

of reading so much into the absence of words. In Robinson, although Title VII

expressly protected “applicants” and “employees” from discrimination and made

no mention of former employees, the Court declined to draw the “negative

inference that inclusion of the term ‘applicants’ demonstrates intentional exclusion

of former employees.” Robinson, 519 U.S. at 344–45. Likewise, we are reluctant

to view Congress’s choice to single out “applicants” for protection in other

statutes, but not here, as an unmistakable expression of congressional intent to

protect only current employees. Especially since Congress presumably knew that

the term “employee” had been interpreted broadly to include former and

prospective employees in other statutes, Congress may have chosen such an “openended term” because it wanted to “entrust that policy choice to the agency.”

Duckworth, 152 F.3d at 7.

In light of the remedial purposes of this statute, a broad definition of

employee might seem to be more in line with congressional intent than the narrow

definition BellSouth urges. However, after exploring the statutory definition of

employee and examining the term in the context of the FMLA as a whole, we
21

conclude that the provision of the FMLA that affords a private right of action to

“employees” is ambiguous as to whether “employee” includes an individual such

as Smith. Therefore, we now must turn to the second step of the Chevron inquiry,

and ask whether the Department of Labor’s interpretation of the statute is

reasonable. 467 U.S. at 843. “If the agency’s reading fills a gap or defines a term

in a reasonable way in light of the Legislature’s design, we give that reading

controlling weight, even if it is not the answer” that we would have reached in

interpreting the statute ourselves. Regions Hosp. v. Shalala, 522 U.S. 448, 457

(1998).

The regulation on which Smith relies prohibits an employer from

discriminating against “employees or prospective employees” who have used

FMLA leave, and prohibits an employer from using “the taking of FMLA leave as

a negative factor in employment actions, such as hiring . . . .” 29 C.F.R. §

825.220(c). In determining whether this is a reasonable interpretation of the

FMLA, we must consider Congress’s purposes in enacting the FMLA.

The FMLA was meant “to balance the demands of the workplace with the

needs of families” by ensuring the availability of “reasonable leave” for employees

who need time for health or family reasons. 29 U.S.C. § 2601(b)(1)–(2). If former

employees like Smith knew they would have no remedy if their former employers
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retaliated against them for their past use of FMLA leave, it would tend to chill

employees’ willingness to exercise their protected leave rights and would work

against the purpose of the FMLA.

In light of the broad interpretation of the definition of employee and

Congress’s interest in ensuring that employees may freely exercise the leave rights

that the FMLA creates, we find the Department of Labor’s interpretation of the

FMLA to be reasonable.

Because we find that the provision of the FMLA affording a private right of

action to employees is ambiguous, and because the Department of Labor regulation

prohibiting an employer from considering an employee’s past use of FMLA leave

in hiring decisions is reasonable, we must afford this regulation Chevron

deference. We therefore conclude that Smith has standing to bring suit under the

FMLA.

II

BellSouth’s next major contention is that refusing to rehire an individual

based on his past use of FMLA leave is not a prohibited act under the FMLA. 

BellSouth points out that while Title VII declares that “to fail or refuse to hire” for

impermissible reasons is an unlawful employment practice, 42 U.S.C. § 2000e-
23

2(a)(1), the FMLA does not specifically prohibit an employer from refusing to hire

employees based on their past use of FMLA leave.

Smith frames his claim as a “retaliation” claim. We recognized in Brungart

that while the FMLA “uses the language of interference, restraint, denial,

discharge, and discrimination, not retaliation, . . . . nomenclature counts less than

substance. And the substance of the FMLA . . . is that an employer may not do bad

things to an employee who has exercised or attempted to exercise any rights under

the statute.” 231 F.3d at 798 n.5. The FMLA prohibits employers from

discriminating against employees who exercise their leave rights. Id. BellSouth’s

argument that its refusal to rehire is not a prohibited act is predicated on its

assertion that Smith is not an “employee” under the FMLA. We have decided that

Smith, a former employee who has applied for reemployment, is an “employee”

under the FMLA. If Smith proves that his past use of FMLA leave was a

motivating factor in BellSouth’s refusal to rehire him, this is precisely the type of

discrimination that the FMLA seeks to prohibit.

III

Smith and BellSouth each claim to be entitled to summary judgment on the

FMLA claims based on the facts in the record. When evaluating a FMLA

retaliation claim, we use the burden shifting analysis set out in McDonnell Douglas
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Corp. v. Green, 411 U.S. 792 (1973). Brungart, 231 F.3d at 798. To establish a

prima facie case of retaliation, a plaintiff must show that he engaged in statutorily

protected conduct, he suffered adverse action, and there is a causal connection

between the protected conduct and the adverse action. Id. If the plaintiff makes

out a prima facie case, the burden shifts to the defendant to articulate a legitimate

reason for the adverse action. McDonnell Douglas Corp., 411 U.S. at 802. If the

defendant does so, the plaintiff must show the defendant’s proffered reason for the

adverse action is pretextual. Id. at 804.

Smith argues that the only evidence regarding why Smith was not rehired

shows the decision was based on his past use of FMLA leave, and BellSouth

argues that Smith has not produced evidence that demonstrates BellSouth’s

proffered nondiscriminatory reason for not rehiring him – poor attendance

unrelated to FMLA leave – was pretextual.

In her notes on her conversation with Smith’s supervisor about why Smith’s

file was marked “Not eligible for rehire,” Knockett included “took a lot of FMLA”

along with other reasons. A reasonable jury could conclude that BellSouth

impermissibly counted Smith’s past use of FMLA leave against him in its decision

not to rehire him. A genuine issue of material fact remains: whether BellSouth

refused to rehire Smith based on his past use of FMLA leave, or whether it based
25

its decision on non-FMLA attendance problems and other factors. Hence,

summary judgment is inappropriate.

CONCLUSION

We hold that the district court erred in deciding that because Smith was not

employed by BellSouth when it made the decision not to rehire him, Smith was not

an “employee” and lacked standing to bring suit under the FMLA. Since the

provision of the FMLA that affords a private right of action to “employees” is

ambiguous, and the Department of Labor regulation prohibiting an employer from

considering an employee’s past use of FMLA leave in hiring decisions is a

reasonable interpretation of the statute, we must afford that regulation Chevron

deference. 

Accordingly, the district court’s order granting summary judgment is

REVERSED, and the case is REMANDED for further proceedings consistent with

this opinion.