                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit Rule 206
                                       File Name: 08a0294p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                   X
                             Plaintiff-Appellee, -
 MARTHA L. BRYANT,
                                                    -
                                                    -
                                                    -
                                                        No. 07-5006
         v.
                                                    ,
                                                     >
 DOLLAR GENERAL CORP.,                              -
                           Defendant-Appellant. -
                                                   N
                    Appeal from the United States District Court
                  for the Middle District of Tennessee at Nashville.
                  No. 05-00840—Robert L. Echols, District Judge.
                                    Argued: March 13, 2008
                              Decided and Filed: August 15, 2008
                  Before: MOORE, GILMAN, and SUTTON, Circuit Judges.
                                       _________________
                                           COUNSEL
ARGUED: Keith D. Frazier, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, Nashville,
Tennessee, for Appellant. Douglas B. Janney III, Nashville, Tennessee, for Appellee. ON BRIEF:
Keith D. Frazier, Jonathan O. Harris, OGLETREE, DEAKINS, NASH, SMOAK & STEWART,
Nashville, Tennessee, for Appellant. Douglas B. Janney, III, Nashville, Tennessee, for Appellee.
Jay E. Sushelsky, AARP FOUNDATION LITIGATION, Washington, D.C., for Amicus Curiae.
                                       _________________
                                           OPINION
                                       _________________
         KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellee Martha Bryant (“Bryant”)
prevailed in a jury trial on her claim that Defendant-Appellant Dollar General Corporation (“Dollar
General”) fired her in retaliation for her exercise of leave guaranteed by the Family and Medical
Leave Act (“FMLA”). Dollar General now appeals, contending that the FMLA does not prohibit
retaliation against an employee who takes FMLA leave. Bryant has filed a motion to dismiss Dollar
General’s appeal, arguing that we lack jurisdiction because Dollar General failed to file a post-
verdict motion for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(b).
Prior to oral argument, the AARP requested leave to file a brief amicus curiae in support of Bryant,
arguing that federal courts have widely accepted that the FMLA and related federal regulations
prohibit retaliation against an employee who takes FMLA leave. We DENY Bryant’s motion to
dismiss Dollar General’s appeal, GRANT the AARP’s motion for leave to file a brief amicus curiae,
and, because we hold that both the FMLA and its implementing regulations prohibit employers from


                                                 1
No. 07-5006                      Bryant v. Dollar General Corp.                                 Page 2


retaliating against employees who have exercised FMLA leave, we AFFIRM the judgment of the
district court.
                                        I. BACKGROUND
         Dollar General’s appeal presents a purely legal issue—whether the FMLA prohibits
retaliation against an employee’s exercise of FMLA leave—and accordingly the factual background
of the case has little bearing on the outcome of this appeal. As a result, we provide only a brief
recitation of the underlying facts.
       In 2001, Bryant began working for Dollar General as a senior programmer analyst in its
financial marketing department. In 2002, Bryant was diagnosed with Type II diabetes, high blood
pressure, and a heart condition, and Bryant’s supervisors were aware of her conditions. In early
2004, Dollar General assigned Bryant to the Distribution Center Transaction Project (“DCT
Project”), a project that was running behind schedule and missing deadlines. Joint Appendix
(“J.A.”) at 330 (Trial Tr. at 207).
         In early May 2004, Bryant completed paperwork for FMLA leave; shortly afterward, Dollar
General began a disciplinary process against her, allegedly for her involvement in an office
argument in late April 2004. Bryant took FMLA leave from May 12 to 14 and from May 19 to May
23, 2004, and Dollar General fired her on May 27, 2004. Bryant testified in a deposition and at trial
that, at the time Dollar General fired her, a supervisor commented on her health problems, stating
that “[b]ecause of your health, I don’t think you can do the job.” J.A. at 423 (Trial Tr. at 344).
        In October 2005, Bryant filed this lawsuit, claiming that Dollar General had violated the
Americans with Disabilities Act (“ADA”) and the FMLA. In August 2006, the district court granted
Dollar General’s motion for summary judgment on Bryant’s claims under the ADA and her claim
for harassment under the FMLA, but denied the motion as to Bryant’s claim for retaliation under the
FMLA.
         A trial on Bryant’s FMLA retaliation claim occurred from October 31, 2006, to November 2,
2006. At the conclusion of the parties’ proofs, Dollar General made an oral motion for judgment
as a matter of law. Dollar General argued that the relevant statutory section of the FMLA, 29 U.S.C.
§ 2615, does not prohibit retaliation against the exercise of FMLA leave. J.A. at 481 (Tr. of Oral
Argument) (arguing that the statute only “specifically deals with discrimination ‘against any
individual for opposing any practice made unlawful by this subchapter’”) (quoting § 2615(a)(2)).
Dollar General noted that a regulation, 29 C.F.R. § 825.220(c), “expanded somewhat” on § 2615 and
that the regulation “says[] ‘An employer is prohibited from discriminating against employees or
prospective employees who have used FMLA leave.’” J.A. at 481 (quoting § 825.220(c)). Dollar
General’s counsel continued, stating that “[l]ooking at the regulations, again it just prohibits
discrimination against an employee who has used FMLA leave. Ms. Bryant testified . . . that the
first time she exercised rights under FMLA, took FMLA leave, was on May 12th of 2004.” J.A. at
482. Dollar General then argued that “the question then becomes whether the fact that she took six
days off . . . is enough to leave a jury a question of fact as to whether her termination was the result
of taking that leave. And the defendant’s position is that it is not.” J.A. at 482 (Trial Tr. at 463).
       The district court denied Dollar General’s motion, stating that “it’s a jury question for the
jury to determine whether there is that required causal connection between the adverse
employment—that is, her termination—and the fact that she took time off under the Family and
Medical Leave Act.” J.A. at 494.
        Dollar General asserted its statutory interpretation claim again in argument about the jury
instructions. Dollar General stated its position that the jury instruction
No. 07-5006                            Bryant v. Dollar General Corp.                                            Page 3


         should read that instead of “for having exercised rights,” it should say “for taking
         leave under the Family and Medical Leave Act.”
                  The source for that, again, as I explained during the Rule 50 motion, is the
         statute itself does not provide for a retaliation claim such as the one being brought.
         The statute only provides for a retaliation claim when an individual has opposed
         practices.
                  And the regulations—29, CFR, Section 825.220(c). That is the source for
         this particular part of the claim. And the first sentence says, “An employer is
         prohibited from discriminating against employees or prospective employees who
         have used FMLA leave.” It does not say for exercising FMLA rights.
                  And so . . . we’re asking again . . . that the instructions and the claim mirror
         the language of the regulation.
J.A. at 497 (Trial Tr. at 472) (quoting 29 C.F.R. § 825.220(c)); see also J.A. at 515-16 (Trial Tr. at
498-99) (requesting again that “consistent with the regulations, we would ask that rather than
‘exercising their rights’ that that be ‘taking leave’”). The district court declined to make Dollar
General’s proposed change to the jury instructions and, after the district court instructed the jury,
Dollar General again stated its position regarding “the language of the statute,” namely “that there
should be no instruction, because the FMLA does not provide for a retaliation claim under these
circumstances. The only circumstance is when an individual opposes—it’s an opposition clause,
like under Title VII. And that’s the only issue covered by [the] FMLA.” J.A. at 528 (Trial Tr. at
572).
        The jury returned a verdict in favor of Bryant on the FMLA-retaliation claim and awarded
her $73,942.68 in damages.1 Dollar General made no post-verdict motions. Following the district
court’s entry of judgment on November 21, 2006, Dollar General timely appealed.
        In May 2007, Bryant filed a motion in our court to dismiss Dollar General’s appeal for lack
of jurisdiction. In June 2007, Dollar General filed a response, and Bryant then filed a reply. On July
30, 2007, a panel of our court filed an order referring Bryant’s motion to dismiss to the merits panel.
                                                  II. ANALYSIS
A. Bryant’s Motion to Dismiss for Lack of Jurisdiction
         In her motion to dismiss Dollar General’s appeal, Bryant argues that Dollar General’s post-
verdict failure to renew its pre-verdict Rule 50 motion for judgment as a matter of law deprives our
court of jurisdiction under the Supreme Court’s decision in Unitherm Food Systems, Inc. v. Swift-
Eckrich, Inc., 546 U.S. 394 (2006). Dollar General responds by arguing that Bryant reads Unitherm
too broadly and that in any event our court has jurisdiction to consider Dollar General’s statutory
interpretation argument through its objections to the jury instructions or by construing its pre-verdict
motion as one brought pursuant to Federal Rule of Civil Procedure 12(h)(2), which permits a
defendant to raise “at trial” the defense that the plaintiff’s has “[f]ail[ed] to state a claim upon which
relief can be granted.” FED. R. CIV. P. 12(h)(2). We agree with Dollar General and DENY Bryant’s
motion to dismiss because Dollar General’s objections to the jury instructions support our
jurisdiction in this case.
      Dollar General’s principal argument on appeal is that the FMLA does not prohibit an
employer from firing an employee because that employee took FMLA-guaranteed leave. Dollar
General’s repetition of this argument in challenging the jury instructions suffices to preserve the

         1
           The district court later awarded Bryant an additional $73,942.68 in liquidated damages, together with interest,
pursuant to 29 U.S.C. § 2617. J.A. at 221-25 (Liquidated Damages Order).
No. 07-5006                             Bryant v. Dollar General Corp.                                              Page 4


issue for our review. That Dollar General also made this argument in a pre-verdict Rule 50 motion
for judgment as a matter law and then failed to renew that motion post-verdict        is therefore
inconsequential, even if we were to accept Bryant’s reading of Unitherm.2
         As stated above, Dollar General repeatedly challenged the jury instructions, adopting the
same basic position it took in its oral motion for judgment as a matter of law and arguing “that there
should be no instruction, because the FMLA does not provide for a retaliation claim under these
circumstances. The only circumstance is when an individual opposes—it’s an opposition clause,
like under Title VII. And that’s the only issue covered by [the] FMLA.” J.A. at 528; see also J.A.
at 497-98, 515-16. We review jury instructions “as a whole to determine whether they fairly and
adequately present the issues and applicable law to aid the jury in making its determination,” and
“the correctness of jury instructions is a question of law, which we review de novo.” Micrel, Inc.
v. TRW, Inc., 486 F.3d 866, 880-81 (6th Cir. 2007). Further, we may reverse a judgment “only if
the instructions, viewed as a whole, were confusing, misleading, or prejudicial.” Id. at 881. Finally,
“objections regarding jury instructions must be made at the trial level in order to preserve such
objections for appeal.” Libbey-Owens-Ford Co. v. Ins. Co. of N. Am., 9 F.3d 422, 427 (6th Cir.
1993); see also Rand v. Nat’l Fin. Ins. Co., 304 F.3d 1049, 1052 (11th Cir. 2002) (stating that
“[b]ecause [appellant] objected to the jury instruction at trial, it did not need to include the objection
in its new trial motion in order to preserve it for appeal”).
B. Whether the FMLA Prohibits Retaliation Against an Employee’s Exercise of FMLA Leave
        Dollar General’s principal argument on appeal is that the statutory text of the FMLA does
not prohibit retaliation of the type that Bryant alleged and that the jury found occurred. That is,
Dollar General asserts that the FMLA does not bar an employer from firing an employee because
that employee took FMLA leave. Dollar General instead contends that the relevant statutory text
pertains only to situations in which an employee has “oppos[ed] any practice made unlawful” by the
FMLA. 29 U.S.C. § 2615(a)(2). We conclude that Dollar General’s argument has no merit and that
the FMLA prohibits an employer from terminating an employee for taking FMLA-guaranteed leave.
         Dollar General advances a strictly textual argument that the FMLA does not prohibit
retaliation against employees who exercise FMLA leave. The relevant statutory provision is 29
U.S.C. § 2615, titled “Prohibited acts.” In full, § 2615 provides:
         (a)    Interference with rights
                (1) Exercise of rights
                      It shall be unlawful for any employer to interfere with, restrain, or deny
                      the exercise of or the attempt to exercise, any right provided under this
                      subchapter.
                (2) Discrimination


         2
             Because we conclude that Dollar General’s objections to the jury instructions preserved its claim for appeal,
we need not resolve the parties’ dispute regarding the effect of Unitherm on Dollar General’s failure to renew, post-
verdict, its Rule 50 motion, in which Dollar General raised a question of law and not a question going to the sufficiency
of the evidence. We do note in passing that ample support exists for Dollar General’s interpretation that the Supreme
Court’s decision in Unitherm “only addresses pre-verdict motions that are based upon the ‘sufficiency of the evidence.’”
Appellant Reply Br. at 11. Indeed, the Seventh Circuit has concluded that “in Unitherm, the Court was specifically
addressing the situation of a litigant seeking a new trial on the basis of the insufficiency of the evidence” and that “[t]he
Court did not hold that a court of appeals may not award a new trial on the basis of an erroneous evidentiary decision”
in the absence of a post-verdict motion. Fuesting v. Zimmer, Inc., 448 F.3d 936, 939 (7th Cir. 2006). Likewise, in
Metcalf v. Bochco, 200 F. App’x 635, 637 n.1 (9th Cir. 2006), the Ninth Circuit stated that Unitherm “deals with the
specific situation of a party’s failure to renew, post-verdict, a Rule 50 motion challenging the sufficiency of the evidence
in a civil jury trial” and reasoned that “Unitherm is inapposite” to Metcalf’s case because the appellants did not
“challenge the sufficiency of the evidence on appeal.”
No. 07-5006                      Bryant v. Dollar General Corp.                                  Page 5


                    It shall be unlawful for any employer to discharge or in any other manner
                    discriminate against any individual for opposing any practice made
                    unlawful by this subchapter.
       (b)    Interference with proceedings or inquiries
              It shall be unlawful for any person to discharge or in any other manner
              discriminate against any individual because such individual—
              (1) has filed any charge, or has instituted or caused to be instituted any
                    proceeding, under or related to this subchapter;
              (2) has given, or is about to give, any information in connection with any
                    inquiry or proceeding relating to any right provided under this
                    subchapter; or
              (3) has testified, or is about to testify, in any inquiry or proceeding relating
                    to any right provided under this subchapter.
29 U.S.C. § 2615.
       Also relevant to this issue is 29 C.F.R. § 825.220(c), a federal regulation issued by the
Department of Labor interpreting § 2615. See Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112,
1123 n.9 (9th Cir. 2001) (citing 29 U.S.C. § 2654 and cases concluding that regulations issued
pursuant to statutory delegation receive deference under Chevron USA Inc. v. Natural Resources
Defense Council, 467 U.S. 837, 843-44 (1984)). Section 825.220(c), titled “How are employees
protected who request leave or otherwise assert FMLA rights?,” provides:
       (c) An employer is prohibited from discriminating against employees or prospective
       employees who have used FMLA leave. For example, if an employee on leave
       without pay would otherwise be entitled to full benefits (other than health benefits),
       the same benefits would be required to be provided to an employee on unpaid FMLA
       leave. By the same token, employers cannot use the taking of FMLA leave as a
       negative factor in employment actions, such as hiring, promotions or disciplinary
       actions; nor can FMLA leave be counted under “no fault” attendance policies.
29 C.F.R. § 825.220(c). In addition, § 825.220(b) states that “[a]ny violations of the Act or of these
regulations constitute interfering with, restraining, or denying the exercise of rights provided by the
Act.”
         Dollar General argues that § 2615(a)(2) “only speaks of retaliation for ‘opposing any practice
made unlawful’ by the FMLA, and thus does not encompass Bryant’s claim that she was fired for
taking FMLA leave.” Appellant Br. at 3. Dollar General also contends that “Bryant has never
asserted an ‘interference’ claim under 29 U.S.C. § 2615(a)(1)” and that, although various Sixth
Circuit cases have involved claims of retaliation under § 2615(a)(2), “[n]o party has ever asserted
to the Sixth Circuit Court of Appeals that the plain language of 29 U.S.C. § 2615(a)(2) does not
encompass a claim that one was retaliated against for taking FMLA leave.” Appellant Br. at 24, 27.
Finally, Dollar General argues that “[t]o the extent 29 C.F.R. § 825.220(c) is read to implement the
retaliation prong, § 2615(a)(2), that regulation is manifestly contrary to the plain language of that
prong and therefore invalid.” Appellant Br. at 43.
        Several problems plague Dollar General’s argument, including its failure in the district court
to challenge § 825.220(c), a federal regulation that expressly interprets the FMLA as prohibiting an
employer from discriminating against an employee for using FMLA leave. Although Dollar General
argues on appeal that this regulation is invalid, see Appellant Br. at 31-32, 43-47, nowhere below
did Dollar General attack the validity of this regulation. In the portions of its appellate brief
challenging the validity of § 825.220(c), Dollar General does not include a single citation to the Joint
Appendix demonstrating that it challenged the regulation below. See Appellant Br. at 2, 31-32, 43-
No. 07-5006                            Bryant v. Dollar General Corp.                                          Page 6


47. Indeed, at oral argument, counsel for Dollar General acknowledged that it never cited Chevron
below in making its repeated statutory interpretation argument.
         Despite our general rule that “‘[i]ssues not presented to the district court but raised for the
first time on appeal are not properly before the court,’” we have “stated that it may be appropriate
to consider a new issue on appeal if it is ‘presented with sufficient clarity and completeness’ for us
to resolve the issue.’” McFarland v. Henderson, 307 F.3d 402, 407 (6th Cir. 2002) (quoting J.C.
Wyckoff & Assocs., Inc. v. Standard Fire Ins. Co., 936 F.2d 1474, 1488 (6th Cir. 1991), and Pinney
Dock & Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445, 1461 (6th Cir. 1988)) (alteration in
original). Further, we have “‘most commonly’” exercised our discretion to reach issues not raised
below when “‘the issue is one of law, and further development of the record is unnecessary.’” Id.
(quoting Foster v. Barilow, 6 F.3d 405, 407 (6th Cir. 1993)). Given that Dollar General’s challenge
to the validity of a federal regulation presents a pure a question of law and requires no further
development of the record, this case presents an appropriate circumstance for exercising our
discretion to reach an issue not raised below. We therefore consider the merits of Dollar General’s
arguments that the statutory text of the FMLA does not prohibit an employer from taking adverse
employment action against an employee who takes FMLA leave, as well as its argument that
§ 825.220(c), a federal regulation that prohibits that precise conduct, is invalid.
         The overwhelming consensus of the case law in the circuits as well as the nature of the
statutory scheme and the FMLA’s legislative history weigh strongly in favor of rejecting Dollar
General’s argument that the FMLA itself does not prohibit retaliating against an employee who
exercises FMLA leave. Courts throughout the country have observed that the FMLA “was clearly
intended to provide [] protection” against “discharg[ing] or discriminat[ing] against an employee
for exercising her rights under the Act.” Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 160 n.4
(1st Cir. 1998); see also Staunch v. Cont’l Airlines, Inc., 511 F.3d 625, 629 (6th Cir. 2008) (stating
that the FMLA “makes     it unlawful for employers to . . . retaliate against employees who exercise”
their FMLA rights)3; Darby v. Bratch, 287 F.3d 673, 679 (8th Cir. 2002) (stating that “[t]he FMLA
prohibits employers from discriminating against employees for asserting rights under the Act,” and
that “[t]his prohibition necessarily includes consideration of an employee’s use of FMLA leave as
a negative factor in an employment action”) (footnote omitted); Strickland v. Water Works & Sewer
Bd. of City of Birmingham, 239 F.3d 1199, 1206-07 (11th Cir. 2001) (“[T]o succeed on a retaliation
claim, an employee must demonstrate that his employer intentionally discriminated against him in
the form of an adverse employment action for having exercised an FMLA right.”); King v. Preferred
Tech. Group, 166 F.3d 887, 891 (7th Cir. 1999) (“[T]he FMLA also affords employees protection
in the event they are discriminated against for exercising their rights under the Act.”).
        The structure of the FMLA itself and its legislative history also strongly support interpreting
§ 2615(a)(2) as prohibiting retaliation against employees who use FMLA leave. Section 2612(a)(1)
“entitles qualifying employees to twelve weeks of unpaid leave each year if, among other things, an
employee has ‘a serious health condition that makes the employee unable to perform the functions
of the position of such employee.’” Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713, 719 (6th Cir.
2003) (quoting 29 U.S.C. § 2612(a)(1)(D)). After an employee takes such leave, the FMLA
generally requires that, upon the employee’s return, the employer restore the employee “to the
position of employment held by the employee when the leave commenced” or restore the employee
“to an equivalent position with equivalent employment benefits, pay, and other terms and conditions
of employment.” 29 U.S.C. § 2614(a)(1). As the Eighth Circuit has observed, “the FMLA does not
provide leave for leave’s sake, but instead provides leave with an expectation an employee will

         3
          Our circuit has repeatedly accepted such claims of retaliation for taking FMLA leave. See, e.g., Arban v. West
Publ’g Corp., 345 F.3d 390, 403 (6th Cir. 2003) (holding that “there was sufficient evidence to support the jury’s
conclusion that West retaliated against Arban for taking leave under the FMLA”); Wysong v. Dow Chemical Co., 503
F.3d 441, 446-48 (6th Cir. 2007); Bryson v. Regis Corp., 498 F.3d 561, 569-71 (6th Cir. 2007).
No. 07-5006                      Bryant v. Dollar General Corp.                                 Page 7


return to work after the leave ends.” Throneberry v. McGehee Desha County Hosp., 403 F.3d 972,
978 (8th Cir. 2005). Any “right” to take unpaid leave would be utterly meaningless if the statute’s
bar against discrimination failed to prohibit employers from considering an employee’s FMLA leave
as a negative factor in employment decisions. Interpreting § 2615(a)(2)’s ban on discrimination in
a manner that would permit employers to fire employees for exercising FMLA leave would
undoubtedly run contrary to Congress’s purpose in passing the FMLA. See Cavin, 346 F.3d at 719
(noting that “Congress enacted the FMLA because . . . ‘there is inadequate job security for
employees who have serious health conditions that prevent them from working for temporary
periods’” and that “[t]he FMLA ‘accommodates the important societal interest in assisting families
by establishing minimum labor standard[s] for leave’”) (quoting 29 U.S.C. § 2601(a)(4) and H.R.
Rep. No. 103-8(I), 103d Cong., 1st Sess. 1993, at *21). Indeed, the legislative history to the FMLA
summarized the testimony of numerous individuals who lost their jobs after taking medical and
family leave. H.R. Rep. No. 103-8(I), 103d Cong., 1st Sess. 1993, at *26 (“There are many similar
stories of workers who have been fired when their employers refused to provide an adequate leave
of absence. These accounts, and many others like them presented to the committee over the past
eight years, illustrate the human and economic costs of terminating employees at times of great
family need.”).
        In light of the foregoing, we conclude that the FMLA itself prohibits employers from taking
adverse employment actions against employees based on the employee’s exercise of FMLA leave.
We thus also conclude that the Department of Labor’s interpretation of § 2615 in § 825.220 is a
reasonable interpretation of the statute and a valid exercise of agency authority. Dollar General
acknowledges that Congress delegated authority to the Secretary of the Department of Labor to
“prescribe such regulations as are necessary to carry out” the Act, 29 U.S.C. § 2654, and that the
Department of Labor’s interpretation receives deferential review under Chevron, Appellant Br. at
43-45. Dollar General simply argues that § 825.220(c) “is ‘manifestly contrary to’ the plain
language of § 2615(a)(2)” in that “the regulation would alter § 2615(a)(2) in a fundamental way
[because] it would rewrite § 2615(a)(2) to proscribe retaliation for taking FMLA leave, even though
§ 2615(a)(2) only prohibits retaliation for opposing a practice made unlawful by the FMLA.”
Appellant Br. at 45, 46-47. As we have explained, in light of the overwhelming consensus in the
courts that the FMLA does prohibit such retaliation, we disagree that the plain text fails to afford
employees protection from retaliation against the exercise of FMLA leave. Further, the structure
and purpose of the Act, as well as its legislative history, support our interpretation that Congress
intended the FMLA to prohibit employers from considering an employee’s use of FMLA leave as
a negative factor in employment decisions.
         Although Dollar General asserts that no other defendant has advanced its statutory
interpretation argument and that its attack on the existence of a retaliation claim for taking FMLA
leave under § 2615 presents a case of first impression, the asserted failure of other defendants to
raise this argument may not be an accident. Dollar General’s reading of the statute would essentially
render the FMLA a nullity. Their interpretation would require us to believe that—despite including
statutory provisions granting eligible employees the “rights” to take up to twelve weeks of unpaid
leave in a twelve-month period and to be restored to their prior positions or equivalent positions
upon their return—Congress wished to erect no obstacle to prevent employers from terminating
employees who exercise their newly granted “rights.” Established principles of statutory
interpretation caution against interpretations that “lead to internal inconsistencies, an absurd result,
or an interpretation inconsistent with the intent of Congress.” Vergos v. Gregg’s Enters., Inc., 159
F.3d 989, 990 (6th Cir. 1998) (citing United States v. Turkette, 452 U.S. 576, 580 (1981)). In
enacting the FMLA, Congress plainly stated that “the purpose of this Act” included establishing a
right for “employees to take reasonable leave for medical reasons.” 29 U.S.C. § 2601(b).
Interpreting the language in § 2615(a)(2), which bars employers from discriminating against
employees, in a manner that would permit employers to terminate employees for taking qualifying
No. 07-5006                    Bryant v. Dollar General Corp.                           Page 8


medical leave is fundamentally inconsistent with the clear, unambiguous purpose of the FMLA. As
a result, we must reject Dollar General’s argument.
                                    III. CONCLUSION
        For the reasons discussed above, we DENY Bryant’s motion to dismiss for lack of
jurisdiction, GRANT the AARP’s motion for leave to file a brief amicus curiae, and AFFIRM the
judgment of the district court.
