GARWOOD, Circuit Judge:
Plaintiff-appellant Larry G. Bellum appeals the decision of the district court granting summary judgment to defendant-appellee PCE Constructors, Inc. (PCE) on Bellum's federal claim under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., and on his pendent Mississippi law claims for both the intentional and negligent infliction of emotional distress. We affirm.
Facts and Proceedings Below
PCE is in the construction industry and does work primarily on a project-by-project basis.
PCE hired Bellum, who had worked for PCE on a contract-basis before, on December 12, 1999 to manage a particular project at the FPI site in Fernwood. PCE had a staff of 14 at its headquarters in Baton Rouge and 41 at the FPI site. Bellum testified in his deposition that he drove each day between his home in Baton Rouge and Fernwood, a round-trip of about 190 miles. The distance between PCE's headquarters and FPI is between 66.5 and 69.5 linear miles but 88.5 miles over public roadways.
On December 24, 2000, Bellum told his supervisor, Charles Gibson, that he was taking leave from work to have open-heart surgery. Bellum's last day was December 26, 2000. Bellum contends that while he was on leave for his heart surgery, Gibson repeatedly told both him and his wife that a job was waiting for him at the FPI site. Following his recovery from heart surgery, Bellum visited the FPI site on March 1, 2001 to investigate returning to work. Gibson apparently told him there was no longer any work for him because Bellum's project was completed in his absence. The two remained in touch over the next two weeks discussing work possibilities, but Bellum was formally terminated on March 16, 2001 without ever having returned to work.
On March 3, 2003, Bellum filed the instant suit in the district court seeking relief
A. Standard of Review
We review a grant of summary judgment under the same standard applied by the district court. Faris v. Williams WPC-I, Inc., 332 F.3d 316, 319 (5th Cir. 2003). We examine questions of law de novo and construe disputed material facts in favor of the non-movant. Id.
B. The FMLA
The FMLA provides, inter alia, an "eligible employee" with "a total of 12 workweeks of leave during any 12-month period ... [b]ecause of a serious health condition[.]" 29 U.S.C. § 2612(a)(1)(D). The parties do not dispute that Bellum's heart problems qualify as a "serious health condition." What they do dispute, however, is whether Bellum is an "eligible employee." PCE maintains that Bellum falls within one of two enumerated exceptions to the definition of eligible employee:
29 U.S.C. § 2611(2)(B)(ii). This exception applies, PCE contends, because its headquarters, as measured over public roads, is more than seventy-five miles from the FPI worksite.
The district court resolved this controversy by consulting 29 C.F.R. § 825.111(b), which states that the "75-mile distance is measured by surface miles, using surface transportation over public streets, roads, highways and waterways, by the shortest route from the facility where the eligible employee needing leave is employed." The regulation goes on to provide that the 75-mile distance should only be measured as the crow flies when there is no "available surface transportation between worksites." Id.
We review federal regulations of the sort at issue here under the familiar Chevron doctrine. If a statute is unambiguous,
The error in Bellum's approach may be illustrated as follows. Suppose that Company A had its headquarters along the south rim of the Grand Canyon and a branch office on the other side only 25 miles away as the crow flies. Suppose further, quite plausibly, that the shortest distance between the two by public roads is 120 miles. Now, imagine that Company B has its headquarters next to a straight-line interstate highway and a branch office 80 miles away also right along the interstate. Under Bellum's reading of the statute, Company A would be bound by the FMLA but Company B would not be. Given that the purpose of the exception at 29 U.S.C. § 2611(2)(B)(ii) is to relieve the burden of FMLA compliance on companies with widely dispersed operations, it would make no sense to construe the statute in a way that subjects Company A but exempts Company B. See Moreau v. Air France, 356 F.3d 942, 945 (9th Cir.2004) (concluding that the purpose of the exception was "to accommodate employer concerns about `the difficulties that an employer might have in reassigning workers to geographically separate facilities.'") (quoting H.R.Rep. No. 102-135, pt. 1, at 37 (1991)); 29 U.S.C. 2601(b)(1) & (3) ("It is the purpose of this Act to balance the demands of the workplace with the needs of families ... in a manner that accommodates the legitimate interests of employers."); see also Harbert, 391 F.3d at 1150 (making use of a similar hypothetical to illustrate an arbitrary and capricious interpretation of the FMLA). We conclude, therefore, that the decision of Congress not to define a method of measuring the 75-mile distance constitutes an implicit statutory gap the Secretary of Labor is authorized to fill by
When Congress has left an implicit gap such as this one, the question before us is simply "whether the [regulation] is based on a permissible construction of the statute." Chevron, 104 S.Ct. at 2782. In answering this question, we consider only whether the regulation is arbitrary, capricious, or manifestly contrary to the FMLA. Id. We may not substitute our own preference for a reasonable alternative devised by the Secretary of Labor. Id. "The Secretary's judgment that a particular regulation fits within" the statutory framework of the FMLA "must be given considerable weight." Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 122 S.Ct. 1155, 1160, 152 L.Ed.2d 167 (2002). This is the essence of what is known as Chevron deference.
We hold that 29 C.F.R. § 825.111(b) is entitled to deference.
C. Emotional Distress
Bellum also appeals the district court's grant of summary judgment on his pendent state claims for the intentional and negligent infliction of emotional distress.
Bellum's claim under Mississippi common law for the intentional infliction of emotional distress is subject to the one-year statute of limitations set forth at Miss.Code Ann. § 15-1-35 (Rev.1995). King v. Otasco, Inc., 861 F.2d 438, 442 (5th Cir.1988) (making an Erie "guess" that the intentional infliction of emotional distress falls within the one-year statute of limitations for intentional acts; this "guess" adopted with respect to false arrest by City of Mound Bayou v. Johnson, 562 So.2d 1212, 1218 (Miss.1990)); Hervey v. MetLife Gen. Ins. Corp. Sys. Agency of Miss., Inc., 154 F.Supp.2d 909, 914-915 (S.D.Miss.2001) (surveying relevant federal and state precedent in concluding that the one-year period still applies to the intentional infliction of emotional distress). His cause of action accrued no later than March 16, 2001 when he was terminated as part of a reduction in force at FPI. Bellum did not file his complaint until March 3, 2003, nearly two years later. His claim, therefore, is barred.
Relying on McCorkle v. McCorkle, 811 So.2d 258, 263-264 (Miss. App.2001), Bellum contends that the running of the limitations period was tolled under Mississippi's continuing tort doctrine because the effects of his termination persist into the present. This is without merit and reflects a fundamental misunderstanding of the continuing tort doctrine. Under Mississippi law, acts that take place outside the one-year statute of limitations are actionable if, and only if, they are directly connected to an ongoing pattern of tortious conduct and at least one tortious act occurred within the one-year limitations period. Id. at 264. The continuing tort doctrine does not apply when a plaintiff like Bellum simply alleges that "harm reverberates from one wrongful act or omission." Smith v. Franklin Custodian Funds, Inc., 726 So.2d 144, 149 (Miss. 1998).
We similarly find Bellum's claim for the negligent infliction of emotional distress to be without merit.
Employment in Mississippi is at-will. Levens v. Campbell, 733 So.2d 753, 760 (Miss.1999). The only exceptions to this general rule are for breach of contract or unlawful intentional acts such as terminating someone on account of his or her race. Id. (stating that "absent an employment contract expressly providing to the contrary, an employee may be discharged at the employer's will for good reason, bad reason, or no reason at all, excepting reasons only declared legally impermissible."). Bellum in effect is asking this panel to extend Mississippi common law by developing an exception to the at-will rule based on mere negligence. Furthermore, in every case in which the Mississippi Supreme Court has permitted a plaintiff to recover for the negligent infliction of emotional distress, the defendant has committed some independently wrongful act or breached some other duty imposed
This court will not use its diversity jurisdiction to "expand state law beyond its presently existing boundaries." Rubinstein v. Collins, 20 F.3d 160, 172 (5th Cir.1994). That is solely the prerogative of the courts of Mississippi. Jackson v. Johns-Manville Sales Corp., 781 F.2d 394, 397 (5th Cir.) (en banc), cert. denied, 478 U.S. 1022, 106 S.Ct. 3339, 92 L.Ed.2d 743 (1986).
Bellum, therefore, is not entitled to recover under the facts of this case for the negligent infliction of emotional distress.
For the foregoing reasons, the judgment of the district court is
In this case, on the other hand, Congress was silent as to the method of measuring the 75-mile distance and the regulation promulgated by the Secretary of Labor advances, rather than impairs, the FMLA's remedial purpose. Nor is the regulation contrary to the design of the statute.
We also reject Bellum's contention that his method of linear measurement has been widely adopted by the federal courts. Bellum bases this assertion on the fact that numerous cases have used the word "radius," which by definition is a straight line from the center of a circle to anywhere along its edge, when discussing the 75-mile distance described by 29 U.S.C. § 2611(2)(B)(ii). None of the twenty cases Bellum cites, however, concerned the question at issue here and it is evident that the courts were using the term "radius" in a colloquial, rather than technical, sense.