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United States Court of Appeals
Fifth Circuit
F I L E D
May 27, 2003
REVISED JUNE 2, 2003
Charles R. Fulbruge III
Clerk
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
_________________________

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

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

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

to the cause of action for damages as a right
waivers and our knowledge that similar waiv-
under FMLA.5
ers are allowed in other regulatory contexts.
Waivers of the right to bring suit under the
Indeed, the regulation begins with the title
Age Discrimination in Employment Act
"How are employees protected who request
("ADEA") are enforced by this court and are
leave or otherwise assert FMLA rights?" It
not void as against public policy. "[A]lthough
then goes on to describe how FMLA rights are
an employee cannot waive the right to file a
protected, discussing the pro hibition of dis-
charge with the [Equal Employment Opportu-
crimination as a method of protecting those
nity Commission ("EEOC")], the employee
rights. The cause of action for discrimination,
can waive not only the right to recover in his
however, is never described as an FMLA right
or her own lawsuit but also the right to re-
itself, within the regulation or elsewhere. Sub-
cover in a suit brought by the EEOC on the
section (d) must be read in conjunction with
employee's behalf." EEOC v. Cosmair, Inc.,
the heading describing protections for employ-
L'Oreal Hair Care Div., 821 F.2d 1085, 1091
ees who "request leave or otherwise assert
(5th Cir. 1987). Therefore, although a defen-
FMLA rights," because it is responsive to that
dant cannot waive his substantive rights under
heading, limiting waiver of rights considered in
the statute, he can waive his right to money
the heading.
damages.
The examples of nonwaivability, quoted
Releases of title VII claims are also en-
above, concern prohibitions on the prospective
forced. In Rogers v. Gen. Elec. Co., 781 F.2d
waiver of rights under FMLA. In the exam-
452 (5th Cir. 1986), we noted that
ples, the rights to leave and restoration are the
"rights under FMLA." The cause of action for
[a] general release of Title VII claims
retaliation is unaddressed by these examples,
does not ordinarily violate public policy.
but rather is a protection for FMLA rights, the
To the contrary, public policy favors
waiver of which is not prohibited by the regu-
voluntary settlement of employment
lation. This is consistent with the rest of the
discrimination claims brought under
language of the regulation. A plain reading of
Title VII. While a release of Title VII
the regulation is that it prohibits prospective
claims will not ordinarily violate public
waiver of rights, not the post-dispute settle-
policy, an employee may validly release
ment of claims.
only those Title VII claims arising from
discriminatory acts or practices which
C.
antedate the execution of the release.
Our reading of the regulation is bolstered
Thus, an otherwise valid release that
by public policy favoring the enforcement of
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
6 The EEOC has released enforcement guidance
rights under the FMLA," as distinguished from the
discussing the contours of non-waivable employee
cause of action for retaliation).
(continued...)
5

It is not necessarily dispositive that post-
waiver requirements.8 The policies employed
dispute waiver is allowed under the ADEA and
in the title VII and ADEA contexts are there-
title VII. We must carefully consider whether
fore highly persuasive.
there are aspects of title VII, ADEA, and
FMLA that might encourage differing protec-
We interpret the regulation to apply only to
tions and interpretations.7 We know, how-
waivers of substantive rights under the FMLA,
ever, of no good reasonSSnor has Faris sug-
rather than to claims for money damages, con-
gested oneSSwhy the government would
sistent with public policy and the law under
proscribe waiver for FMLA retaliation claims
similar regulatory regimes. In practice, this
and yet favor waiver o f claims for age dis-
may render the regulation applicable only to
crimination under ADEA and for civil rights
current employees, as defendants suggest, but
violations under title VII. Had the Secretary
we need not resolve that question. We there-
intended such a departure from the policy em-
fore conclude that the regulation did not ren-
ployed in analogous areas, one would expect
der Faris's waiver of her claims under the
the Secretary would have manifested this in-
FMLA unenforceable.
tent forthrightly. Not only does the regulation
not do so, it employs examples that are en-
III.
tirely consistent with title VII and ADEA
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-
6 (...continued)
lease, precluding her from arguing misrepre-
rights under statutes enforced by the Commission,
sentation or duress. In Williams v. Phillips
which include the ADEA, title VII, the Americans
Petroleum Co., 23 F.3d 930, 935 (5th Cir.
with Disabilities Act, and the Age Discrimination
1994), we held that "[o]nce a party establishes
in Employment Act. See EEOC NOTICE NO.
that his opponent signed a release that ad-
915.002 § I (Apr. 10, 1997). Though the
dresses the claims at issue, received adequate
Commission "recognized that individuals possess
consideration, and breached the release, the
a non-waivable right to file charges with the
EEOC," id. § III(A), it expressed its "support for
opponent has the burden of demonstrating that
post-dispute agreements entered into knowingly
the release was invalid because of fraud, du-
and voluntarily to settle claims of discrimination,"
ress, material mistake, or some other defense."
id. § III(C) (emphasis added).
But,
7 See Pettway v. Am. Cast Iron Pipe Co., 411
[e]ven if a release is tainted by misrepre-
F.2d 998, 1005-06 (5th Cir. 1969) (employing the
sentation or duress, it is rat ified if 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
8 Although no court has explicitly considered
the similarities"); see also Smith, 273 F.3d at 1310
the argument presented by Faris, two circuits have
("While cases decided under other employment
allowed waiver of FMLA retaliation claims. See
statutes prohibiting discrimination and retaliation
Halvorson v. BSA, 2000 U.S. App. LEXIS 9648,
may be instructive, we must be attentive to the way
at *6 (6th Cir. 2000); Schoenwald v. ARCO Alas-
the statutes differ in their language, their purposes,
ka, Inc., 1999 U.S. App. LEXIS 20955, at *5 (9th
and their scope of protection.") (citing Pettway).
Cir. 1999).
6

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.
7