                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 00-2479
                                   ___________

David Evanoff,                         *
                                       *
             Appellant,                *
                                       * Appeal from the United States
     v.                                * District Court for the District
                                       * of Minnesota.
Minneapolis Public Schools, Special    *
School District No. 1,                 *         [UNPUBLISHED]
                                       *
             Appellee.                 *
                                  ___________

                         Submitted: April 6, 2001

                               Filed: April 17, 2001
                                   ___________

Before HANSEN, MORRIS SHEPPARD ARNOLD, and BYE, Circuit Judges.
                          ___________

PER CURIAM.

       David Evanoff appeals the district court’s1 adverse grant of summary judgment
in his employment discrimination action. After careful review of the record and the
parties’ briefs, see Carter v. Ford Motor Co., 121 F.3d 1146, 1148 (8th Cir. 1997)
(standard of review), we affirm.



      1
      The Honorable Donald D. Alsop, United States District Judge for the District
of Minnesota.
       Although Mr. Evanoff made claims under the Americans with Disabilities Act,
the Minnesota Whistleblower Protection Act, and the Family Medical Leave Act
(FMLA), on appeal he challenges only the district court’s determination as to his
FMLA claim. Because Mr. Evanoff worked approximately 856 hours in the twelve
months prior to his termination, see 29 U.S.C. § 2611(2)(A) (eligible employee under
FMLA is one who has been employed at least twelve months for at least 1,250 hours
of service during previous twelve-month period), he relied on 29 C.F.R. § 825.110(d)
(2000) (where employee does not give notice of unexpected need for FMLA leave
more than two business days before commencing leave, he will be deemed eligible if
employer does not advise him of his failure to meet 1,250-hours-of-service requirement
within two days of receiving FMLA leave request). The district court determined that
the regulatory provision on which Mr. Evanoff relied was an invalid exercise of power
by the Department of Labor (DOL), as it impermissibly contradicted Congress’s clear
intent. Mr. Evanoff now argues that section 825.110(d) should be upheld as a
permissible modification of FMLA, as it furthers the intent and spirit of FMLA by
holding the employer--who knows of FMLA’s requirements--more accountable than
the employee.

       Because this case involves reviewing the DOL’s application or interpretation of
a statute, we must determine whether congressional intent is clear from the plain
language of the FMLA, and, if so, whether the DOL’s interpretation is contrary to that
intent. See Ragsdale v. Wolverine Worldwide, Inc., 218 F.3d 933, 936 (8th Cir. 2000)
(in ascertaining plain meaning of statute, court must look to particular statutory
language at issue, and language and design of statute as whole), petition for cert. filed
(U.S. Sept. 5, 2000) (No. 00-6029). Although we previously declined to address the
constitutionality of section 825.110(d), see Sepe v. McDonnell Douglas Corp.,
176 F.3d 1113, 1115-16 (8th Cir.) (affirming grant of summary judgment on other
grounds), cert. denied, 528 U.S. 1062 (1999), we have held invalid other FMLA
regulations requiring the employer to notify an employee that paid or unpaid leave is
FMLA leave, and allowing the employee to retain the twelve-week FMLA leave

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entitlement if the employer fails to do so, see Ragsdale, 218 F.3d at 937-39 (DOL
regulations at issue improperly converted FMLA’s minimum of federally-mandated
unpaid leave into entitlement to additional twelve weeks of leave, and created rights
which statute clearly did not confer). In Ragsdale, we also noted that other FMLA
sections “strongly support the view that where Congress desired explicit notice
provisions with significant consequences for their violation, it provided for them in the
text of the statute”; and that the FMLA was intended to balance workplace demands
with families’ needs in a manner that accommodated the legitimate interests of
employers. See id. at 938-39.

       We conclude--as have the Seventh and Eleventh Circuits--that section
825.110(d) is invalid, as the plain language of the statute defines an eligible employee
as one who has worked at least 1,250 hours during the previous twelve months. See
Brungart v. Bellsouth Telecomms., Inc., 231 F.3d 791, 795-97 (11th Cir. 2000) (there
is no ambiguity in statute concerning eligibility for family medical leave, and
§ 825.110(d) is invalid insofar as it purports to extend FMLA’s eligibility provision to
otherwise ineligible employee; where it was undisputed that at time of FMLA request
employee had not worked 1,250 hours in prior twelve months, summary judgment was
proper even though employer failed to notify her of her ineligibility), petition for cert.
filed (U.S. Mar. 2, 2001) (No. 00-1383); Dormeyer v. Comerica Bank-Illinois,
223 F.3d 579, 582-83 (7th Cir. 2000) (statutory text is perfectly clear and covers issue;
regulation allows employee to claim benefits to which she is not entitled as matter of
law or equity, and confers windfall by extinguishing employer’s defense without basis
in legal principle).

      Accordingly, we affirm.




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A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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