                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 10-1158


JOANN WHITING,

                 Plaintiff - Appellant,

           v.

THE JOHNS HOPKINS     HOSPITAL;     JOHNS    HOPKINS   HEALTH   SYSTEM
CORPORATION,

                 Defendants - Appellees.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     William D. Quarles, Jr., District
Judge. (1:09-cv-01619-WDQ)


Argued:   January 26, 2011                      Decided:     March 14, 2011


Before TRAXLER,    Chief   Judge,   and     NIEMEYER   and   AGEE,   Circuit
Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Thomas Bernard Corbin, THOMAS B. CORBIN, PA, Baltimore,
Maryland, for Appellant.    Jay Robert Fries, KRUCHKO & FRIES,
Baltimore, Maryland, for Appellees.      ON BRIEF: Kathleen A.
Talty, KRUCHKO & FRIES, Baltimore, Maryland, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Joann    Whiting      appeals    a    district      court    order       granting

judgment against her in her action against The Johns Hopkins

Hospital      and    The    Johns     Hopkins       Health     System    Corporation

(together, “Hopkins”) for violating the Family and Medical Leave

Act   (“FMLA”),      see    29   U.S.C.A.       §§ 2601-54     (West   2009    &     Supp.

2010).   Finding no error, we affirm.



                                           I.

      Whiting worked for Hopkins from January 1998 to August 2007

as a patient financial service representative.                    She took medical

leave pursuant to the FMLA from June 2007 to August 2007.                             When

approving     Whiting’s      leave    request,       Hopkins     stated       that     her

remaining FMLA leave would be exhausted on August 8, 2007, and

that she would need a leave of absence for short-term disability

if she needed to take any more time off from work.                              Hopkins

initially approved such short-term disability through September

10,   2007,    but     it    terminated         Whiting   on    August    25,        2007,

informing her she had been replaced.

      Whiting subsequently filed a discrimination charge with the

Equal Employment Opportunity Commission (“EEOC”), alleging that

Hopkins had terminated her in violation of the Americans with

Disabilities Act, see 42 U.S.C.A. §§ 12101-12213 (West 2005 &

Supp. 2010).        The charge alleged that she had been discharged

                                            2
because of her disability inasmuch as she had been on leave

because of her disability.                     After the parties participated in

EEOC-monitored           mediation,            they            reached        two        settlement

agreements:          the Mediation Settlement Agreement (“MSA”) and the

Release and Settlement Agreement (“RSA”).

       The MSA, which the EEOC approved, provided that Whiting

would    not    institute         a   lawsuit           against    Hopkins      under         various

federal employment discrimination laws.                           The RSA, which was not

approved by the EEOC, released Hopkins “from any and all causes

of    action,       known    or   unknown,          arising       out    of    or    in    any       way

relating       to    [Whiting’s]         employment.”               J.A.       28.        In        this

agreement, Whiting also promised that she would “neither file

nor    cause    or     permit      to    be    filed       on     her    behalf      .    .     .    any

lawsuits,       claims,       grievances,           complaints          or    charges         in     any

forum, or any dispute arising out of her employment relationship

with    [Hopkins]       through         December         20,     2007.”        J.A.       28.         In

exchange       for     these      promises,         Whiting       received,          among         other

consideration, $4,500.00, less applicable taxes.

       More     than    a     year      after       executing       these       two       releases,

Whiting    filed       the     present        action       in    federal      district          court,

alleging       Hopkins       violated         her       FMLA    rights       during       her       2007

employment.          Hopkins moved to dismiss, or in the alternative,

for     summary       judgment,         on     the        basis     that       the       settlement

agreements barred the suit.                    Hopkins relied on a Department of

                                                    3
Labor (“DOL”) regulation stating that while “[e]mployees cannot

waive     .   .     .     their    prospective         rights       under       FMLA,”        this

prohibition “does not prevent the settlement or release of FMLA

claims by employees based on past employer conduct without the

approval      of    the    [DOL]   or   a   court.”           29    C.F.R.          § 825.220(d)

(2009).         This      regulation      was     a    revision        of       a     regulation

originally         promulgated     in     1995,       which    provided             simply    that

“[e]mployees cannot waive . . . their rights under the FMLA.”

29   C.F.R.     § 825.220(d)       (2007).        We     had       held    that       under    the

original      version,      not    only     could      employees          not       waive    their

prospective rights, but they also could not waive their rights

to proceed on FMLA claims for past employer conduct.                                 See Taylor

v. Progress Energy, Inc., 493 F.3d 454, 457-63 (4th Cir. 2007).

For her part, Whiting maintained that the revised regulation did

not apply in her case since it was promulgated more than a year

after     the       settlement      agreements          had     been        signed.            She

alternatively contended that the revised regulation was invalid

because it was manifestly contrary to the FMLA.                             Rejecting both

of Whiting’s arguments, the district court granted judgment to

Hopkins.




                                             4
                                            II.

      Whiting    first       argues     that      the      district      court      erred   in

applying     revised    29     C.F.R.      § 825.220(d)         retroactively         to    her

case.   We disagree.

      Although retroactive application of a statute or regulation

is generally not favored, see Bowen v. Georgetown Univ. Hosp.,

488   U.S.    204,    208    (1988),       when       an     amendment       clarifies      the

existing law rather than changing it, we give the clarification

“great weight” in considering the meaning of the original law,

Brown v. Thompson, 374 F.3d 253, 260 (4th Cir. 2004) (internal

quotation marks omitted).               In determining whether an amendment

is clarifying, we consider the intent of the body that enacted

the amendment.        See id. at 259.

      Here,    the     DOL’s      intent    to    clarify        the    meaning       of    the

original regulation is unmistakable.                       The preamble to the FMLA

regulations     notes       that,    prior       to    the     amendment,       a   conflict

existed between this circuit and the Fifth Circuit regarding the

proper interpretation of § 825.220(d).                        See 73 Fed. Reg. 67987

(Nov. 17, 2008).         Compare Taylor, 493 F.3d at 457-63 (holding

that § 825.220(d) precluded both prospective and retrospective

waivers of an employee’s FMLA claims), with Faris v. Williams

WPC-I, Inc., 332 F.3d 316, 320-22 (5th Cir. 2003) (holding that

§ 825.220(d)      did       not     prohibit          post-dispute        settlement        of

claims).        The     preamble      states          that     the     DOL    revised       the

                                             5
regulation    “in     the    interest       of   clarity”     in   order      to    “make

explicit” the DOL’s long-held view that “employees and employers

are permitted to agree voluntarily to the settlement of past

claims without having first to obtain the permission or approval

of the Department or a court.”                   73 Fed. Reg. 67987 (Nov. 17,

2008); see id. (stating that the DOL “intends, as it has always

intended,     for     the        waiver     prohibition      to    apply       only    to

prospective FMLA rights”).                 Thus, the district court properly

concluded that the amended regulation was clarifying. *

     Whiting        alternatively          maintains       that    to    the       extent

§ 825.220(d) allows settlement of past FMLA claims without court

or DOL approval, the regulation must be struck down for being

inconsistent with the FMLA.               We disagree.

     We judge the regulation’s validity by applying the two-step

analysis provided in Chevron U.S.A., Inc. v. Natural Resources

Defense     Council,    Inc.,       467     U.S.    837    (1984).       Under        that

analysis,    we     first    consider        whether      “Congress     has    directly

spoken to the precise question at issue.”                     Id. at 842-43.           If

Congress’s     intent       is    clear,     then    our    analysis     ends      since


     *
       Whiting contends that the DOL is being disingenuous when
it asserts that its revision was intended merely as a
clarification rather than a change in the law.     However, the
circuit split regarding the meaning of the original regulation
lends strong support to the DOL’s representation.    See Brown,
374 F.3d at 260.



                                             6
agencies “must give effect to the unambiguously expressed intent

of Congress.”      Id. at 843.    On the other hand, if the statute in

question is silent or ambiguous regarding the issue in dispute,

then we must determine whether the agency’s interpretation is

reasonable, and if it is, we must defer to the agency.                       See id.;

Mayo Found. for Med. Educ. & Research v. United States, 131 S.

Ct.   704,   714    (2011).      Thus,       the   challenged     regulation      is

controlling unless it is “arbitrary, capricious, or manifestly

contrary to the statute.”          Chevron, U.S.A., Inc., 467 U.S. at

844; see United States v. Mead Corp., 533 U.S. 218, 227 (2001).

For that reason, we must uphold the regulation so long as the

agency articulates a rational basis for its action.                      See Motor

Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S.

29, 43 (1983).

      Whiting      correctly   concedes        that    the      FMLA    is     silent

regarding the waiver of claims.                We therefore proceed to the

second    Chevron      step,     determining          whether     the        agency’s

interpretation is permissible.       We conclude that it is.

      The DOL explains in the preamble to the regulations its

reasons   for   permitting     unsupervised        settlements     of   past     FMLA

claims, reasons that closely track those offered by the Fifth

Circuit in Faris.       The DOL notes that allowing such settlements

“promotes the efficient resolution of FMLA claims and recognizes

the common practice of including a release of a broad array of

                                         7
employment claims in severance agreements.”                73 Fed. Reg. 67988

(Nov.   17,   2008).        The   DOL    also   explains   that    allowing     such

waivers is consistent with the FMLA’s language.                   In this regard,

the DOL contrasts the FMLA with the Fair Labor Standards Act

(“FLSA”), see 29 U.S.C.A. §§ 201-219 (West 1998 & Supp. 2010),

which contains a provision authorizing the settlement of FLSA

claims when the settlement is supervised by the DOL or a court.

See 73 Fed. Reg. 67987 (Nov. 17, 2008); 29 U.S.C.A. § 216(c).

     The DOL reasons that this distinction between the FMLA and

the FLSA is justified by the difference in subject matter of the

two statutes:

     The FLSA is a remedial statute setting the floor for
     minimum wage and overtime pay.     It was intended to
     protect the most vulnerable workers, who lacked the
     bargaining   power   to  negotiate  a   fair   wage  or
     reasonable work hours with their employers. . . .
     Like   the  [Age   Discrimination  in   Employment  Act
     (“ADEA”), see 29 U.S.C.A. §§ 621-634 (West 2008 &
     Supp. 2010)], the FMLA is not primarily focused on
     pay, and protects all segments of the workforce, from
     low wage workers to highly paid professionals.

73 Fed. Reg. 67987 (Nov. 17, 2008).                 The DOL adds that we have

construed     the    ADEA    as    not     requiring    that      settlements    be

supervised, see O’Shea v. Commercial Credit Corp., 930 F.2d 358,

361-62 (4th Cir. 1991) (applying ordinary contract principles to

ADEA waivers).

     Whiting        contends      that        the   revised       regulation     is

impermissible because it conflicts with the view of the FMLA we


                                          8
expressed in Taylor.         In Taylor, we rejected the DOL’s argument

that the original § 825.220(d) allowed waivers of claims based

on past FMLA violations.           See Taylor, 493 F.3d at 457-62.              In so

doing,    we     concluded   that     the     DOL’s     interpretation     of     its

original regulation was at odds with the regulation’s language.

See id. at 457-59.        We also reasoned that the DOL’s construction

would thwart the legislative policy that the FLSA was designed

to effectuate, and that it was inconsistent with the meaning the

DOL embraced at the time of promulgation.                   See id. at 459-62.

Whiting now argues that, in light of our conclusion in Taylor

that allowing unsupervised waivers of claims based on past FMLA

violations would thwart the legislative policy behind the FLSA,

the    revised      regulation’s    allowing     such    waivers      cannot    be   a

permissible interpretation of the statute.                We disagree.

       Simply put, the DOL is not bound by the observations we

made in Taylor concerning our view of the legislative policy

supporting the FMLA.         After all, it is the DOL, not this court,

that     is    charged    with     the      authority     to    promulgate       FMLA

regulations.        See 29 U.S.C.A. § 2654 (authorizing the Secretary

of    Labor    to   “prescribe    such   regulations      as    are   necessary      to

carry out” the FMLA).            Thus, regardless of whether we disagree

with the DOL’s interpretation of the FMLA, we must uphold its

regulations so long as they are reasonable.                    See National Cable

& Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982

                                         9
(2005)    (“A    court’s     prior   judicial      construction   of    a   statute

trumps    an    agency      construction    otherwise    entitled      to   Chevron

deference       only   if    the   prior   court    decision   holds    that    its

construction follows from the unambiguous terms of the statute

and thus leaves no room for agency discretion.”).                   The district

court correctly determined that the revised regulation satisfies

that standard.



                                       III.

     In sum, because we hold that the district court properly

upheld the regulation at issue and applied it in this case, we

affirm.

                                                                            AFFIRMED




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