*

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, RichardC. 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
No. 03-3294 Ricco v. Potter, et al. 3

1

Because 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 recounted in Ricco’s amended complaint.

(1st Cir. 2002), in which the First Circuit held that the hoursof-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

2

To be an “eligible employee” under the Family and Medical 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. § 2611(2)(A).

3

In her amended complaint, Ricco avers that her December 1997

termination was “unlawful.” Because this is an appeal 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 December 1997 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
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

(quotingAllard 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.
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 makewhole 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 —
No. 03-3294 Ricco v. Potter, et al. 9

4

The determination of whether an employee meets the FMLA’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. Owens-Brockway Plastic Prods.,

Inc., 199 F.3d 314, 316 (6th Cir. 1999).

5

Under 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.
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-ofservice 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
No. 03-3294 Ricco v. Potter, et al. 13

order to ascertain Ricco’s eligibility under the hours-ofservice 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 defendantemployer 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.
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.