MEMORANDUM
Susan Seaman has sued Downtown Partnership of Baltimore, Inc. (“Downtown Partnership” or “Partnership”) for discharging her in violation of the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C.A. §§ 2601-2654 (Supp.1997). Now pending is Downtown Partnership’s motion to dismiss, which will be granted. 1
BACKGROUND
Ms.. Seaman worked as a consultant to Downtown Partnership from August 1995 until she became a full-time employee on November 6, 1995. She was hired to fill a new position, Director of Retail Leasing. On or about November 17, 1995 she informed Downtown Partnership president Laurie Schwartz that she was pregnant. Ms. Seaman subsequently submitted a “Downtown Partnership FMLA Leave Request Form” dated April 12,1996, requesting leave for the birth of her child beginning April 22, 1996. Ms. Schwartz on behalf of the Partnership signed and returned to Ms. Seaman a “Downtown Partnership Response to FMLA Leave Request” dated April 19, 1996. That form contained three options: (1) leave request denied, (2) leave request granted but not charged against the employee’s FMLA entitlement, and (3) leave request granted and charged against the employee’s FMLA entitlement. Option three was checked. That, option additionally stated: “Employee please see attached Notice to Employee Regarding FMLA Leave.” This attached Notice stated: “Your request for Leave beginning April 22, 1996 and returning to work July 15,1996 has been granted and the leave will be charged against your FMLA leave entitlement.” Also included, however, was the Partnership’s FMLA Leave Policy, which stated that “[t]o be eligible for FMLA leave, an employee must have been employed by [Downtown Partnership] for at least 12 months and have been employed for at least 1,250 hours of service during the 12-month period immediately preceding the commencement of the leave.” (Ex. 2, Pl.’s Ópp. Mot. Dismiss.) Ms. Seaman commenced her leave April 22, 1996, and telephoned Ms. Schwartz on May 22, 1996 to report her status and intent to return to work. Ms. Schwartz told her that her position was in jeopardy, and on or about June 20, 1996 told Ms. Seaman that her position had been eliminated and she would not be permitted to return to Work.
ANALYSIS
“A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.”
Republican Party of N.C. v. Martin,
Only “eligible employee[s]” are entitled to leave under the FMLA. 29 U.S.C.A. § 2612(a)(1).
The term “eligible employee” means an employee who has been employed — (i) for at least 12 months by the employer with respect to whom leave is requested under section 2612 of this title; and (ii) for at least 1,250 hours of service with such employer during the previous 12-month period.
29 U.S.CA. § 2611(2)(A). Ms. Seaman’s complaint shows that she was not an “eligible employee” under the FMLA, because she had been employed for less than six months, rather than the required twelve. She argues instead that an implementing Department of Labor Regulation mandates that the Partnership be bound by its alleged confirmation of her eligibility for FMLA leave. That regulation provides in relevant part:
The determinations of whether an employee has worked for the employer for at least 1,250 hours in the past 12 months and has been employed by the employer for a total of at least 12 months must be made as of the date leave commences. If an employee notifies the employer of need for FMLA leave before the employee meets these eligibility criteria, the employer must either confirm the employee’s eligibility based upon a projection that the employee will be eligible on the date leave would commence or must advise the employee when the eligibility requirement is met. If the employer confirms eligibility at the time the notice for leave is received, the employer may not subsequently challenge the employee’s eligibility.
29 C.F.R. § 825.110(d) (emphasis supplied). Thus, “[b]y forbidding an employer [who had confirmed an employee’s eligibility] from asserting a legal impediment to an employee’s claim, the' regulation essentially orders courts to estop the employer from asserting an employee’s ineligibility.”
Wolke v. Dreadnought Marine, Inc.,
The Partnership presents two challenges to Ms. Seaman’s “estoppel” claim. 2 First, it contends that under the terms of the regulation, the Partnership never “eonfirm[ed the] eligibility” of Ms. Seaman under FMLA, 29 C.F.R. § 825.110(d), but merely granted her leave request subject to her entitlement. “[T]he forms simply conveyed to [Ms. Seaman] that if she was entitled to FMLA leave, the leave she had been granted would be charged against her FMLA entitlement.” (Def.’s Reply at 7, emphasis in original.) Ms. Seaman argues that by checking the option on its Response form, “Leave Request granted,” the Partnership “confirmed” her eligibility under the FMLA, notwithstanding the direction on that same form: “Employee please see attached Notice to Employee Regarding FMLA Leave,” which explained FMLA eligibility requirements. “Whatever other materials the [Partnership] may have given to [Ms. Seaman], including materials that recited the general eligibility requirements of the FMLA, [Ms. Seaman] could not and should not be expected to second-guess the employer’s intention to extend FMLA leave when there is an express written undertaking by the employer to do so.” (Pl.’s Surreply at 3.) While there is some support for each party’s position, the FMLA forms are ambiguous. Whether the Partnership actually “confirmed” Ms. Seaman’s eligibility under the regulation cannot be determined solely by examination of the FMLA leave documents. 3 Therefore, the motion to dismiss would not be granted on this ground.
*754
The Partnership’s second challenge is- to the regulation itself, claiming that it is invalid because contrary to the authority granted by Congress to the Department of Labor, which promulgated the regulation. Under step one of the now-familiar
Chevron
analysis, a reviewing court must determine “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.”
Chevron U.S.A, Inc. v. Natural Resources Defense,
Notes
. Ms. Seaman’s motion to file surreply also will be granted. Further, the Secretary of Labor was permitted, to filé a brief as amicus curiae.
. Ms. Seaman did not allege estoppel or promissory estoppel claims under state law.
. Even if the FMLA forms were clear, another part of the same regulation provides that "[i]f the *754 employer fails to advise the employee whether the employee is eligible prior to the date the requested leave is to commence, the employee will be deemed eligible.” 29 C.F.R. § 825.110(d). Under this provision the Partnership’s mere failure to specifically tell Ms. Seaman that she was not eligible apparently would result in her "deemed” eligibility. Id. Moreover, while these would not be considered on a motion to dismiss, each party has submitted an affidavit regarding communications between Ms. Schwartz and Ms. Seaman, which conflict concerning whether Ms. Schwartz told Ms. Seaman she was eligible for FMLA leave. (Seaman Aff. ¶ 10, Pl.’s Opp., Ex. 1; Schwartz Aff. ¶¶ 7-8, Def.’s Reply, Ex. 1.)
. Ms. Seaman argues that three cases have implicitly adopted the regulation. None .of these cases, however, provides support for the regulation’s validity.
See Jessie v. Carter Health Care Center, Inc.,