Ricco v. Potter, 377 F.3d 599 (6^th Cir. 2004)

Dorren Ricco worked for the United States Postal Service.  In December 1997, she was terminated.  In February 1999, an arbitrator ordered that the termination be converted to a 30-sday suspension and that she be reinstated subject to passing a fitness-for-duty examination. 

After Ricco returned to work, from May through July 1999, she suffered from depression and migraines.  Due to this serious health condition, she requested leave under the FMLA.  The Postal Service denied such leave because she had not worked the requisite 1,250 hours in the preceding 12 months.  Ricco responded that she had not worked 1250 hours because she had been wrongfully terminated in December 1997 in violation of the collective bargaining agreement.  She contended she should not be penalized for that. 

In October 1999, the Postal Service terminated her “due to failure to maintain a regular work schedule.”  This, too, went to arbitration.  The arbitrator affirmed the dismissal and stated that arbitration was not the proper forum in which to address the FMLA issue.  In March 2002, Ricco sued the Postal Service alleging her termination was in violation of the FMLA.  The trial court granted the Postal Service’s motion to dismiss based on Ricco not having the 1250 hours. 

The Sixth Circuit reversed and, as noted below, remanded.  In so doing, it engaged in an extensive analysis of what was intended under the FMLA.  Does the “hours of service” mean the employee must actually work the 1250 hours, or could the hours include the time she could have worked had she not been wrongfully terminated?  The FMLA does not define “hours of service.”  Instead, it refers to section 207 of the FLSA.  However, that section does not define “hours of service” either.  Ultimately, the Six Circuit concluded that the hours Ricco could have worked but for the wrongful termination should count toward the 1250 hours. 

The Sixth Circuit acknowledged that its holding is contrary to that of the First Circuit, which, faced with similar facts, concluded that the hours must actually be worked.  Plumley v. Southern Container, Inc., 303 F.3d 364 (1^st Cir. 2002).  No other circuit has addressed the issue.  In support of its position, the Sixth Circuit stated, “The goal of a make-whole award is to put the employee in the same position she would have been in had her employer not engaged in the unlawful conduct; this includes giving the employee credit towards the FMLA’s hours of service requirement for hours the employee would have worked but for her unlawful termination.”  The case was remanded so the trial court could determine how many hours Ricco would have worked but for her unlawful termination.