Harrell, Rodney v. USPS ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-4204
RODNEY HARRELL,
Plaintiff-Appellant,
v.
UNITED STATES POSTAL SERVICE,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 02 C 2056—Michael P. McCuskey, Chief Judge.
____________
ARGUED SEPTEMBER 24, 2004—DECIDED JULY 19, 2005
REARGUED DECEMBER 9, 2005—DECIDED MAY 4, 2006
____________
Before FLAUM, Chief Judge, and RIPPLE and WILLIAMS,
Circuit Judges.
RIPPLE, Circuit Judge. Rodney Harrell filed this action
against his former employer, the United States Postal
Service (“USPS” or “Postal Service”), alleging violations
of the Family and Medical Leave Act (“FMLA” or “Act”), 29
U.S.C. § 2601 et seq. The parties filed cross-motions for
summary judgment, and the district court granted summary
judgment in favor of the Postal Service. Mr. Harrell ap-
pealed. This panel initially affirmed in part and reversed in
part the judgment of the district court. On the petition of the
2 No. 03-4204
Postal Service, with the United States Department of Labor
(“Department”) as amicus curiae, the panel granted rehear-
ing. For the reasons set forth in the following opinion, we
affirm the judgment of the district court in its entirety.
I
BACKGROUND
A. Facts
Mr. Harrell began working for the Postal Service in 1984
as a clerk at the Decatur, Illinois post office. He was a
member of a collective bargaining unit represented by
the American Postal Workers Union, AFL-CIO (“APWU” or
“Union”), and he was covered by a national collective
bargaining agreement between the APWU and the
Postal Service known as the National Agreement.
On February 2, 2000, Mr. Harrell felt ill and left work
early. On February 10, 2000, he submitted to the Postal
Service a medical form completed by his physician, Dr.
Robert Smith, which certified that his absence was due
to fatigue, stress, sleep disturbance and difficulty con-
centrating. Dr. Smith indicated that the health problems had
begun on February 2 and probably would last four weeks.
On February 23, 2000, Mr. Harrell submitted a second health
certification, in which Dr. Smith estimated that he would be
able to resume work on March 6, 2000.
The Postal Service responded by a letter dated February
23, 2000, and advised Mr. Harrell that, according to postal
regulations, in order to return to work,
(1) You must submit medical documentation outlining
the nature and treatment of the illness or injury, the
No. 03-4204 3
inclusive dates you were unable to work, and any
medicines you are taking. This medical information is to
be reviewed by the Postal Medical Officer.
(2) You may be required to be examined by the
Postal Medical Officer after your documentation is
reviewed. The bill for this release for work exam will be
paid by the Postal Service.
R.27, Ex.A, Ex.3. Mr. Harrell maintains that he did not
receive this letter until March 7, 2000.
Mr. Harrell attempted to return to his job on March 6.
However, Jane Cussins, the Decatur post office supervisor,
informed him that he had not been cleared to return to
work; at that time she explained the applicable postal
regulations to Mr. Harrell. In order to facilitate the clearance
process, Cussins made him an appointment for an examina-
tion by the USPS-contract physician for later that morning.
Mr. Harrell went to the physician’s office, but he refused to
consent to an examination because he believed that he
already had provided the Postal Service with sufficient
medical information to entitle him, under the FMLA, to
return to work. Mr. Harrell returned to Cussins’ office,
and she told him that she would fax the documentation
submitted by Mr. Harrell to the postal nurse for review.
The postal nurse reviewed the February 10 and Feb-
ruary 22 certifications submitted by Mr. Harrell, and she
concluded that the information was insufficient to clear him
for duty. Specifically, the forms had no information about
continuing medications, restrictions on Mr. Harrell’s ability
to work or when he had been declared fit to return to
work. On March 10, 2000, the postal nurse called Mr. Harrell
to obtain his physician’s contact information; he refused to
provide the information and expressly stated that he did not
4 No. 03-4204
want her to contact his physician. Two weeks later, nonethe-
less, the postal nurse faxed a return-to-work form to Dr.
Smith’s office. The office refused to release any medical
information without Mr. Harrell’s consent.
In the meantime, the Postal Service mailed Mr. Harrell
a letter dated March 9, 2000, reminding him that
employees returning to duty after 21 days or more of
absence due to illness or serious injury require med-
ical certification. This certification must include evi-
dence of your ability to return to work, with or without
limitations. A medical officer or contract physician
evaluates the medical report and makes a medical
assessment as to your ability to return to work before
you are allowed to return.
R.27, Ex.A, Ex.5. The letter also explained that the forms
prepared by Dr. Smith, which had explained Mr. Harrell’s
need for leave, were insufficient to clear him for duty
because they did not describe the nature of treatment he
received or list any medications he was taking. Finally,
the letter advised that, if he did not present appropriate
documentation within five days, he would be considered
absent without leave and subject to discipline, includ-
ing removal. This letter was sent by both regular and
certified mail.
On March 15, 2000, having not received a reply from
Mr. Harrell, the Postal Service mailed him another letter
(also via regular and certified mail) which declared him
absent without leave and scheduled a predisciplinary
hearing for March 17. The letter advised that failure to
appear could result in disciplinary action, including re-
moval. On March 22, the Postal Service sent Mr. Harrell a
notice of removal.
No. 03-4204 5
On March 21, 2000, Mr. Harrell sent a letter to the Postal
Service. He maintained that he had not received the March 9
and March 15 warning letters until March 20. He also
asserted that the medical documentation he had provided
in order to qualify his absence as FMLA leave was sufficient
by law to entitle him to return to work. Despite this belief,
Mr. Harrell returned to Dr. Smith and obtained a return-to-
work certification. The certification, dated March 23, 2000,
stated that Mr. Harrell was “fit to return to work without
restrictions.” R.27, Ex.A, Ex.7.
The Postal Service responded to Mr. Harrell by letter
on March 31, 2000, which advised:
You were notified in writing on February 23, 2000, that
this medical documentation had to include the nature of
treatment of your illness and any medicines you were
taking. You have again failed to provide medical
documentation adequate for the Postal Medical Officer
to make a determination as to your ability to return to
work.
In conclusion, we want the opportunity to review
medical documentation from your attending physi-
cian that includes all the required information. We have
scheduled the following appointment for you to be
examined by the Postal contract physician.
R.22, Ex.6, Ex.10. Mr. Harrell again refused to provide
further information or to submit to an examination. By letter
dated April 27, 2000, the Postal Service terminated
his employment.
6 No. 03-4204
B. District Court Proceedings
Mr. Harrell alleged that the Postal Service violated the
FMLA in five ways: (1) failing to restore him to work after
he presented a medical clearance; (2) requiring him to
submit to a medical examination by a USPS-contract
physician prior to allowing him to return to work; (3)
terminating his employment because he took FMLA leave;
(4) contacting his physician without his consent; and (5)
failing to provide him with notice of the Postal Service’s
return-to-work requirements and the consequences of not
complying with those requirements. The parties filed cross-
motions for summary judgment, and the district court
granted summary judgment in favor of the Postal Service.
1.
With respect to Mr. Harrell’s first three claims, the
Postal Service asserted that the conditions it had placed
on his return to work were permitted by the National
Agreement that incorporated by reference the postal
handbooks and manuals governing employees’ leave.
Specifically, the Postal Service contended that any return-to-
work certification requirements included in a collec-
tive bargaining agreement (“CBA”) take precedence over
the FMLA’s return-to-work provisions under 29 U.S.C.
§ 2614(a)(4), which provides that employers may impose
a uniformly applied practice or policy that requires each
employee to receive certification from the health care
provider of the employee that the employee is able to
resume work, except that nothing in this paragraph shall
supersede a valid State or local law or a collective bargaining
agreement that governs the return to work of such employees.
Id. (emphasis added).
No. 03-4204 7
Mr. Harrell contended that the Postal Service was pre-
cluded from arguing that the National Agreement incorpo-
rated the postal regulations governing return to work after
FMLA leave because the Postal Service previously made,
and lost, the same argument in a different case. The district
court, however, determined that United States v. Mendoza,
464 U.S. 154, 162 (1984), did not allow Mr. Harrell to invoke
the doctrine of collateral estoppel offensively against the
United States based on a litigation to which he was not a
party.
The district court then concluded that the postal hand-
books and manuals are part of the National Agreement.
It further determined that, because the postal regulations
had the force of a valid collective bargaining agreement,
those regulations, and not the FMLA’s provisions, con-
trolled Mr. Harrell’s right to reinstatement. In addition,
the district court found that the postal regulations justi-
fied the Postal Service’s requirement that Mr. Harrell
provide more detailed medical documentation from his
health care provider or submit to a medical examination
by a USPS-contract physician. Moreover, the district
court believed that such requirements did not diminish
any substantive right provided by the FMLA. The court took
the view that
USPS employees always have the right guaranteed
by the FMLA to be restored to their employment
following FMLA leave. The agreement and the USPS
regulations merely alter the procedure by which em-
ployees go about being restored.
It is possible to imagine a situation in which altering
the procedure attached to a certain substantive right
would in essence impinge on or prohibit the exercise
of that right. This case does not present such a situation,
8 No. 03-4204
however, given the modest and seemingly simple
certification process the USPS imposes for employees
who exceed 21 days of FMLA leave. Cussins was able to
make Harrell an appointment with the contract doctor
on the very morning he sought to return to work.
Alternatively, the [postal nurse] needed only two single-
sided forms filled out by a doctor, noting Harrell’s
condition, treatment, medication, and work restrictions.
Neither process is so onerous that it effectively abro-
gates Harrell’s right of restoration under the FMLA.
R.41 at 9.
2.
Next, the district court granted the Postal Service sum-
mary judgment on the claim that it had failed to provide Mr.
Harrell with adequate notice of the requirements for
returning to work and of the consequences for not meeting
those requirements. See 29 C.F.R. § 825.310(c). The district
court pointed to Mr. Harrell’s “deposition testimony in
which he admits that he was aware of the USPS regulations
concerning returning to work following an absence of more
than 21 days.” R.41 at 11. The court noted, moreover, that
Mr. Harrell was informed of the return-to-work require-
ments by the letters from the Postal Service and by Cussins,
to whom he had spoken when he attempted to return to
work.
3.
Finally, the district court granted the Postal Service
summary judgment on Mr. Harrell’s claim that the Postal
Service had violated the FMLA by contacting his personal
No. 03-4204 9
physician without his consent. See 29 C.F.R. § 825.310(c).
Although the district court found that a violation had
occurred, it dismissed the claim because Mr. Harrell had
suffered no injury in that Dr. Smith’s office did not re-
lease any information that contributed to his termination.
II
DISCUSSION
A. Standard of Review
We review a district court’s grant or denial of sum-
mary judgment de novo. Tutman v. WBBM-TV, Inc./CBS, Inc.,
209 F.3d 1044, 1048 (7th Cir. 2000). In doing so, we construe
all facts and reasonable inferences in the light most favorable
to the nonmoving party. Id. Summary judgment is proper if
“the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986).
B. Failure to Return to Work
Congress enacted the FMLA in order to assist workers
in meeting the needs of their families and the demands
of their jobs. See Price v. City of Fort Wayne, 117 F.3d 1022,
1023 (7th Cir. 1997). The statute responded to the perception
that
[p]rivate sector practices and government policies
have failed to adequately respond to recent economic
and social changes that have intensified the tensions
between work and family. This failure continues to
10 No. 03-4204
impose a heavy burden on families, employees, employ-
ers and the broader society. [This legislation] provides a
sensible response to the growing conflict between work
and family by establishing a right to unpaid family and
medical leave for all workers covered under the act.
S. Rep. No. 103-3, at 4 (1993), reprinted in 1993 U.S.C.C.A.N.
2, 6 (“S. Rep. 103-3”). The FMLA makes available to
eligible employees up to twelve weeks of leave during any
twelve-month period for one or more of the following
reasons: (1) the birth of the employee’s child; (2) the place-
ment of a child with the employee for adoption or foster
care; (3) the care of the employee’s child, spouse or parent
who has a serious health condition; and (4) the inability of
the employee himself to perform the functions of his position
because of a serious health condition. 29 U.S.C. § 2612(a)(1).
At the conclusion of a qualified-leave period, the employee
is entitled to return to his former position of employment, or
to an equivalent one, with the same terms and benefits. Id.§ 2614(a)(1);1 see also 29 C.F.R. § 825.214(a). To protect these
1
Section 2614(a)(1) provides:
(1) In general
Except as provided in subsection (b) of this section, any
eligible employee who takes leave under section 2612 of
this title for the intended purpose of the leave shall be
entitled, on return from such leave—
(A) to be restored by the employer to the position of
employment held by the employee when the leave
commenced; or
(B) to be restored to an equivalent position with equiva-
lent employment benefits, pay, and other terms and
(continued...)
No. 03-4204 11
rights, the FMLA declares it “unlawful for any employer to
interfere with, restrain, or deny the exercise of or the attempt
to exercise, any right provided.” 29 U.S.C. § 2615(a)(1). In
this case, Mr. Harrell contends that the Postal Service
violated his rights under the FMLA by refusing to return
him to his position after his physician provided an unquali-
fied certification of his fitness to return to duty.
An employee’s right to return to work after taking
FMLA leave is not unlimited. The Act seeks to accomplish its
purposes “in a manner that accommodates the legitimate
interests of employers.” 29 U.S.C. § 2601(b)(3); see also 29
C.F.R. § 825.101(b) (“The enactment of the FMLA was
predicated on two fundamental concerns—the needs of the
American workforce, and the development of high-perfor-
mance organizations.”). An employee is not entitled to “any
right, benefit, or position of employment other than any
right, benefit, or position to which the employee would have
been entitled had the employee not taken the leave.” 29
U.S.C. § 2614(a)(3)(B); see also 29 C.F.R. § 825.216(a) (“An
employee has no greater right to reinstatement or to other
benefits and conditions of employment than if the employee
had been continuously employed during the FMLA leave
period.”). An employee returning from FMLA leave also is
not entitled to restoration if he cannot perform the essential
functions of the position or an equivalent position.2 29 C.F.R.
1
(...continued)
conditions of employment.
29 U.S.C. § 2614(a)(1).
2
The Department of Labor regulations discuss an employee’s
right to restoration:
(continued...)
12 No. 03-4204
§ 825.214(b).
In addition, the Act permits an employer, as a condition of
restoring employees who take FMLA leave, to have a policy
that requires all such employees to obtain medical certifica-
tion from their personal health care provider indicating that
the employee is able to resume work. 29 U.S.C. § 2614(a)(4).
The Act provides that nothing in § 2614(a)(4) “shall super-
sede a valid State or local law or a collective bargaining
agreement that governs the return to work of employees.” Id.
The interplay between the FMLA’s return-to-work provi-
sions and a CBA that governs the return of employees who
take leave due to a serious health condition is discussed in
the statute’s accompanying regulations:
(a) As a condition of restoring an employee whose
FMLA leave was occasioned by the employee’s own
serious health condition that made the employee unable
(...continued)
(a) On return from FMLA leave, an employee is entitled to be
returned to the same position the employee held when leave
commenced, or to an equivalent position with equivalent
benefits, pay, and other terms and conditions or employ-
ment. An employee is entitled to such reinstatement even if
the employee has been replaced or his or her position has
been restructured to accommodate the employee’s absence.
See also § 825.106(e) for the obligations of joint employers.
(b) If the employee is unable to perform an essential function
of the position because of a physical or mental condition,
including the continuation of a serious health condition, the
employee has no right to restoration to another position
under the FMLA. However, the employer’s obligations may
be governed by the Americans with Disabilities Act (ADA).
See § 825.702.
29 C.F.R. § 825.214.
No. 03-4204 13
to perform the employee’s job, an employer may have a
uniformly-applied policy or practice that requires all
similarly-situated employees (i.e., same occupation,
same serious health condition) who take leave for such
conditions to obtain and present certification from the
employee’s health care provider that the employee is
able to resume work.
(b) If State or local law or the terms of a collective
bargaining agreement govern an employee’s return to
work, those provisions shall be applied. Similarly,
requirements under the Americans with Disabilities Act
(ADA) that any return-to-work physical be job-related
and consistent with business necessity apply. . . .
(c) An employer may seek fitness-for-duty certifica-
tion only with regard to the particular health condition
that caused the employee’s need for FMLA leave. The
certification itself need only be a simple statement of an
employee’s ability to return to work. A health care
provider employed by the employer may contact the
employee’s health care provider with the employee’s
permission, for purposes of clarification of the em-
ployee’s fitness to return to work. No additional infor-
mation may be acquired, and clarification may
be requested only for the serious health condition
for which FMLA leave was taken. The employer may not
delay the employee’s return to work while contact with
the health care provider is being made.
29 C.F.R. § 825.310(a)-(c).
In the present case, the Postal Service maintains that it had
the right, under the FMLA, to require Mr. Harrell to provide
sufficient medical documentation from his health care
provider or to be cleared for duty by a USPS-contract
physician, as a condition of returning to work. In the Postal
14 No. 03-4204
Service’s view it appropriately employed, under 29 U.S.C.
§ 2614(a)(4), a uniform practice requiring employees to
provide a fitness-for-duty certification from their personal
health care provider; and, although the accompanying
regulations provide that this certification need only be a
simple statement of the employee’s ability to work, see 29
C.F.R. § 825.310(c), the FMLA’s certification provisions do
not supersede a valid collective bargaining agreement that
governs return to work for such employees, see 29 U.S.C.
§ 2614(a)(4); 29 C.F.R. § 825.310(b).
Mr. Harrell challenges this theory on four grounds: (1)
collateral estoppel forecloses the Postal Service from arguing
that the terms of the National Agreement allow it to limit
postal employees’ right to return to work after FMLA leave;
(2) the postal handbooks and manuals are not part of the
National Agreement; (3) the postal return-to-work provi-
sions are invalid because they diminish a substantive right
afforded by the FMLA; and (4) the requirements imposed by
the Postal Service in this case contravened the postal return-
to-work provisions. We shall address these issues in turn.
1. Collateral Estoppel
Mr. Harrell first contends that the Postal Service is pre-
cluded from arguing that its handbooks and manuals are
negotiated parts of the National Agreement because it raised
and lost this argument in Routes v. Henderson, 58 F. Supp. 2d
959, 994 (S.D. Ind. 1999). The doctrine of collateral estoppel
provides that “once a court has decided an issue of fact or
law necessary to its judgment, that decision is conclusive in
a subsequent suit based on a different cause of action
involving a party to the prior litigation.” Mendoza, 464 U.S.
at 158. The “offensive use of collateral estoppel occurs when
No. 03-4204 15
a plaintiff seeks to foreclose a defendant from relitigating an
issue the defendant has previously litigated unsuccessfully
in another action against the same or a different party.” Id.at 159 n.4. Mr. Harrell seeks to invoke nonmutual collateral
estoppel, which occurs when the plaintiff was a nonparty to
the prior lawsuit. Id. The district court determined that
applying this doctrine against the Postal Service was not
appropriate. We review a district court’s decision whether to
apply offensive collateral estoppel for an abuse of discretion.
Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331 (1979).
As the district court recognized, the Supreme Court
has established that nonmutual offensive collateral estoppel
does not extend to litigation against the United States.
Mendoza, 464 U.S. at 162. The United States differs from
private litigants in that its litigation is geographically broad
and often involves issues of national significance. Id. at 159-
60. Among other concerns expressed by the Court, preclud-
ing the United States from relitigating issues against differ-
ent parties would “thwart the development of important
questions of law by freezing the first final decision rendered
on a particular legal issue” and would “deprive th[e] Court
of the benefit it receives from permitting several courts of
appeals to explore a difficult question before” it grants
certiorari. Id. at 160.
Mr. Harrell submits that Mendoza does not apply in this
case because Congress has placed the Postal Service on the
same footing as a private litigant by authorizing it to “sue
and be sued.” 39 U.S.C. § 401. Mr. Harrell reads too
much into this waiver of immunity: That the Postal Service is
amenable to the judicial process does not “change the fact
that the party being sued is still the federal government.” In
re Young, 869 F.2d 158, 159 (2d Cir. 1989) (per curiam).
Indeed, Congress has provided that the Postal Service “is
16 No. 03-4204
part of the executive branch of government, that its employ-
ees are part of the federal civil service, and that it possesses
certain powers unique to governmental entities, such as the
authority to exercise the power of eminent domain in the
name of the United States.” Baker v. Runyon, 114 F.3d 668,
670-71 (7th Cir. 1997) (citing 39 U.S.C. §§ 201, 1001(b) &
401(9)). The “sue and be sued” provision, if anything,
indicates that “waiver of sovereign immunity is necessary
solely because the Postal Service is a government agency.”
Id. (citing Western Sec. Co. v. Derwinski, 937 F.2d 1276, 1280
(7th Cir. 1991) (stating that the “sue or be sued” clause
“permit[s] the suit to go forward notwithstanding that it is
a suit against a federal agency”)); see also United States Postal
Serv. v. Flamingo Indus. (USA) Ltd., 540 U.S. 736, 744 (2004)
(“While Congress waived the immunity of the Postal Service,
Congress did not strip it of its governmental status.”).
Accordingly, we conclude that the district court did not
abuse its discretion in concluding that the use of collateral
estoppel was not appropriate in this case, and, thus, the
Postal Service may argue that the National Agreement
incorporates the postal handbooks and manuals that relate
to employees’ return to work.
2. Incorporation
The premise underlying the Postal Service’s position in
this case is that the National Agreement incorporates by
reference the regulations in the postal handbooks and
manuals that govern an employee’s return to work after
taking leave for a serious health condition. The Postal Service
relies upon Article 19 of the agreement, which reads:
Those parts of all handbooks, manuals and published
regulations of the Postal Service, that directly relate
No. 03-4204 17
to wages, hours or working conditions, as they apply to
employees covered by this Agreement, shall con-
tain nothing that conflicts with this Agreement, and shall
be continued in effect except that the Employer shall
have the right to make changes that are not inconsistent
with this Agreement and that are fair, reasonable, and
equitable. This includes, but is not limited to, the Postal
Service Manual and the F-21, Timekeeper’s instructions.
R.27, Ex.I, Ex.1 at 123.
Mr. Harrell argues that this paragraph is too vague and
general to incorporate the contents of the postal hand-
books and manuals into the collective bargaining agreement.
He also relies on the declaration of Greg Bell, the director of
industrial relations for the APWU, who attests that the postal
handbooks and manuals are not part of the National Agree-
ment because they were promulgated unilaterally by the
Postal Service, rather than through any collective bargaining
between the Postal Service and the APWU. See R.27, Ex.I at
¶ 10.
Other courts of appeals, by contrast, have concluded in
analogous contexts that the provisions contained in the
postal handbooks and manuals that affect working con-
ditions are incorporated by reference into the National
Agreement. See Woodman v. Runyon, 132 F.3d 1330, 1334
(10th Cir. 1997) (noting that the postal manual governing
injury compensation was part of the National Agreement
because “Article 19 . . . incorporates those parts of all USPS
handbooks, manuals and published regulations which
directly relate to wages, hours, or working conditions”); Kroll
v. United States, 58 F.3d 1087, 1091 (6th Cir. 1995) (concluding
that Postal Service employee suggestion program was
incorporated into the National Agreement through the postal
manual because Article 19 “incorporates by reference all
18 No. 03-4204
parts of postal handbooks, manuals, and regulations that
‘directly relate to wages, hours, or working conditions’ ”).
Indeed, the APWU itself has argued in other litigation that
Article 19 incorporates the postal handbooks and manuals
into the National Agreement. For instance, in United States
Postal Service v. American Postal Workers Union, 922 F.2d 256(5th Cir. 1991), the Fifth Circuit noted that,
[a]lthough article 19 states that nothing in the hand-
books, manuals and regulations shall conflict with the
Agreement, it does not specifically state that the Agree-
ment incorporates these texts. Thomas A. Neill, Director
of Industrial Relations for the APWU, whose duties
include negotiation of the National Agreement and
administration of the grievance procedure, states in his
“declaration” that “[t]he handbooks and manuals are
applied in labor relations between the APWU and USPS
as part of the National Agreement.” These texts, Neill
adds, are incorporated by reference into the Agreement
and arbitrators routinely interpret them in deciding
grievance arbitration cases. The Postal Service does not
dispute Neill’s sworn declaration.
Id. at 259 n.2.
In light of the fact that both parties to the National Agree-
ment have maintained previously that the postal handbooks
and manual affecting working conditions are incorporated
by reference into that agreement, Mr. Harrell stands in a
weak position to assert otherwise. We agree with our sister
circuits that Article 19 is sufficient to incorporate the postal
handbooks and manuals relating to wages, hours or working
conditions into the National Agreement. Certainly, the postal
handbooks and manuals that govern an employee’s return
to work after an extended absence relate to wages, hours or
working conditions.
No. 03-4204 19
3. Diminishment of FMLA Rights
Mr. Harrell next contends that, even if the postal return-to-
work regulations are part of a valid collective bargain-
ing agreement, the Postal Service was not allowed to impose
any condition on his return that is more stringent than what
is specifically allowed by the FMLA, and, by doing so, the
Postal Service violated rights protected by the FMLA. The
Postal Service takes the opposite view. It maintains that the
FMLA allows for a more stringent return-to-work certifica-
tion if required by state law or if set forth in a CBA. Thus we
arrive at the pivotal issue in this case: Whether the Postal
Service can rely upon return-to-work regulations incorpo-
rated into a valid collective bargaining agreement to impose
requirements on employees that are more burdensome than
what is set forth in the statute. To resolve this issue, we begin
with the language of the statute, specifically 29 U.S.C.
§§ 2614(a)(4) and 2652. If the intent of Congress, as expressed
in the language of the statute, is clear with respect to this
issue, then “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 Council, Inc., 467 U.S. 837, 842-43 (1984).
However, “if the statute is silent or ambiguous with respect
to the specific issue,” the court must defer to the agency’s an-
swer if it “is based on a permissible construction of the
statute.” Id. at 843. Generally speaking, an agency’s interpre-
tation of a statute that it administers is “permissible” if it is
“reasonable.” Id. at 845.
Section 2614(a)(4) permits employers to impose, as a
condition of returning to work,
a uniformly applied practice or policy that requires each
employee to receive certification from the health care
provider of the employee that the employee is able to
20 No. 03-4204
resume work, except that nothing in this paragraph shall
supersede a valid State or local law or a collec-
tive bargaining agreement that governs the return to
work of such employees.
29 U.S.C. § 2614(a)(4). The legislative history for this section
notes that the last phrase “clarifies that [§ 2614(a)(4)] was not
meant to supersede other valid State or local laws or collec-
tive bargaining agreement that, for reasons such as public
health, might affect the medical certification required for the
return to work of an employee who had been on medical
leave.” S. Rep. 103-3 at 32.
Section 2652, in turn, reads:
(a) More protective
Nothing in this Act or any amendment made by this Act
shall be construed to diminish the obligation of an
employer to comply with any collective bargaining
agreement or any employment benefit program or plan
that provides greater family or medical leave rights
to employees than the rights established under this
Act or any amendment made by this Act.
(b) Less protective
The rights established for employees under this Act
or any amendment made by this Act shall not be dimin-
ished by any collective bargaining agreement or any
employment benefit program or plan.
29 U.S.C. § 2652. The legislative history to this section adds
that “[subsection (a)] specifies that employees must continue
to comply with collective bargaining agreements or employ-
ment benefit plans providing greater benefits than the act.
Conversely, [subsection (b)] makes clear that rights under
the act cannot be taken away to collective bargaining or
employer plans.” S. Rep. 103-3 at 38; see also id. at 47 (ex-
No. 03-4204 21
plaining that under § 2652 nothing in the FMLA “shall
diminish an employer’s obligation under a collective
bargaining agreement or employment benefit plan to
provide greater leave rights nor may the rights provided
under this title be diminished by such agreement or plan”).
As noted above, Mr. Harrell believes that the Postal
Service’s insistence on a detailed return-to-work state-
ment violated the FMLA. He asserts that, although the Postal
Service was allowed to have a uniform fitness certification
policy under 29 U.S.C. § 2614(a)(4), this provision is limited
by the language of 29 U.S.C. § 2652(b) which provides that
“[t]he rights established for employees under this Act or any
amendment made by this Act shall not be diminished by any
collective bargaining agreement or any employment benefit
program or plan.” Therefore, as these provisions apply to his
case, Mr. Harrell submits that, because Dr. Smith cleared him
for work without restrictions, the Postal Service was not
authorized to impose a more stringent certification re-
quirement, even if such a requirement was part of the
governing collective bargaining agreement.
The Postal Service and the Department of Labor urge
a different interpretation of these provisions. They maintain
that § 2614(a)(4), with its deference to “a valid State or local
law or a collective bargaining agreement,” defines the
“right” to return to work as guaranteed by the FMLA. The
Postal Service goes on to explain that,
[b]ecause an employee has no right under the Act to
circumvent a collective bargaining provision governing
his return to work, applying section 2614 to require
additional certification measures does not “diminish”
any “right established for employees under th[e] Act,”
and therefore does not contravene section 2652.
22 No. 03-4204
Rehearing Pet. at 11.
Both parties urge that we need not look beyond the
statutory language to resolve the question at hand— whether
a CBA can impose a more stringent return-to-work require-
ment than a simple certification by the employee’s own
physician. We do not believe this to be the case. Here, § 2614
provides that an employer may have a certification require-
ment, but further provides that “nothing in this paragraph
shall supersede a valid State or local law or a collective
bargaining agreement that governs the return to work of
such employees”; § 2652 states that nothing in the Act “shall
be construed to diminish the obligation of an employer to
comply with any collective bargaining agreement . . . that
provides greater family or medical leave rights to employees
than the rights established under this Act” and further states
that rights provided by the FMLA “shall not be dimin-
ished by any collective bargaining agreement or any employ-
ment benefit program or plan.”
There are two possible ways to reconcile these provisions.
The first is the interpretation urged by Mr. Harrell—that a
CBA can provide greater, but not fewer, rights to employees.
This interpretation, however, renders the last clause of
§ 2614(a)(4) superfluous, a result that we usually try to
avoid. See, e.g., United States v. Alvarenga-Silva, 324 F.3d 884,
887 (7th Cir. 2003) (“Courts should avoid statutory construc-
tions that render another part of the same provision super-
fluous.”). The second possible interpretation—the one urged
by the Postal Service—is to read § 2614(a)(4) as an exception
to the general rule set forth in § 2652. Such a reading is
consonant with general canons of statutory interpretation, see
United States v. Salerno, 108 F.3d 730, 737 (7th Cir. 1997) (de-
scribing the “cannon [sic] of statutory interpretation that a
more specific statutory provision takes precedence over
No. 03-4204 23
a more general provision”); however, Congress’ intent
to limit the operation of § 2652 with respect to return-to-
work provisions could have been made clearer through the
use of a cross-reference to § 2614(a)(4). Given the short-
comings with each interpretation, we are not able to con-
clude that Congress clearly addressed the question at issue
through the statutory language. We therefore may turn to
the interpretive regulations to resolve the issue.
Chevron instructs that we must defer to the reasonable
interpretation of an agency tasked with administering
the statute. Whether an interpretation is reasonable involves
a two-step inquiry. The first step requires that the court
identify the agency’s position on the specific issue. The
second step requires a determination of whether the agency’s
position is a principled one. Chevron, 467 U.S. at 844.
Here, Mr. Harrell maintains that the interpretation of
§ 2614(a)(4) set forth in the Department of Labor’s regulation
is no more than a restatement of the language of the statute
and, therefore, is not worthy of deference. Although such an
argument does find support in recent Supreme Court case
law,3 we find it unpersuasive with respect to the regulation
at issue. It is true that part of the implementing regulation,
29 C.F.R. § 825.310,4 follows closely the language of the
statute; however, the regulation goes beyond the mere
recitation of the statutory language and speaks to the issue
3
See Gonzales v. Oregon, 126 S. Ct. 904, 915 (2006) (rejecting
the Government’s argument that an interpretive rule was worthy
of deference under Auer v. Robbins, 519 U.S. 452 (1997), in part
because “the underlying regulation does little more than restate
the terms of the statute itself”).
4
The relevant sections of 29 C.F.R. § 825.310 are set forth
supra at 13.
24 No. 03-4204
presented in this case. First, the title of the regulation sets
forth the question that the regulation purports to answer:
“Under what circumstances may an employer require that an
employee submit a medical certification that the employee is
able (or unable) to return to work (i.e., a ‘fitness-for-duty’
report)?” 29 C.F.R. § 825.310. Subsection (a) then states the
general proposition that, as a condition of restoring an
employee to his or her position after FMLA leave, “an
employer may have a uniformly-applied policy or practice
that requires all similarly-situated employees . . . who take
leave for such conditions to obtain and present certifica-
tion from the employee’s health care provider that the
employee is able to resume work.” 29 C.F.R. § 825.310(a).
Subsection (b) speaks more directly to the situation pre-
sented here; it states:
(b) If State or local law or the terms of a collective bargaining
agreement govern an employee’s return to work, those
provisions shall be applied. Similarly, requirements under
the Americans with Disabilities Act (ADA) that any
return-to-work physical be job-related and consistent
with business necessity apply. For example, an attorney
could not be required to submit to a medical examina-
tion or inquiry just because her leg had been amputated.
The essential functions of an attorney’s job do not
require use of both legs; therefore such an inquiry would
not be job related. An employer may require a ware-
house laborer, whose back impairment affects the ability
to lift, to be examined by an orthopedist, but may not
require this employee to submit to an HIV test where the
test is not related to either the essential functions of
his/her job or to his/her impairment.
29 C.F.R. § 825.310(b) (emphasis added). Not only does
subsection (b) clearly state that a CBA takes precedence over
No. 03-4204 25
the statutory requirements, the examples that follow illus-
trate that the Department of Labor does not believe that
return-to-work requirements found in a CBA only can
provide employees with greater protections than the statu-
tory language. The last example discussing the warehouse
laborer is particularly telling: A CBA that provided only
greater rights to employees could not require a warehouse
laborer, as a condition of returning to work, to be examined
by an orthopedist; if the employee had obtained a return-to-
work release from his general practitioner, that release,
without more, would suffice under the statutory provisions
of the FMLA. Thus subsection (b) not only provides for
compliance with a CBA, it also indicates that the CBA may
impose more stringent return-to-work requirements on the
employee than those set forth in the statute.5
Having identified the agency’s answer to the question,6 the
5
Subsection (c) then goes on to describe the statutory protections
set forth in the act for returning to work—those protections that
are applied in the event subsection (b) is inapplicable. See 29
C.F.R. § 825.310(c), supra at 13.
6
A Department of Labor Opinion Letter, Opinion Letter FMLA-
113, further elucidates the Department’s position vis-a-vis CBAs
and establishes that the Department’s position has remained
consistent over time. The letter states:
How FMLA’s certification provisions interact with the terms
of a CBA that govern an employee’s reinstatement is specifi-
cally discussed in § 825.310(b) of the regulations. If the terms
of the CBA, for instance, require a fitness-for-duty examina-
tion in addition to a return-to-work certification, then those
terms apply with certain conditions. The FMLA, which has
adopted the guidelines of the Americans with Disabilities
Act (ADA), requires that any fitness-for-duty examination as
(continued...)
26 No. 03-4204
last inquiry is whether this interpretation is a reasonable one
and, as a result, is entitled to deference from the courts. We
believe that this final requirement also is met. First, there is
support in the legislative history for this interpretation. As
noted above, the portion of the Senate report that discusses
§ 2614(a)(4) states that the language of § 2614(a)(4)
clarifies that section 104(a)(4) was not meant to super-
sede other valid State or local laws or collective bargain-
ing agreement, that, for reasons such as public health,
might affect the medical certification required for the
return to work of an employee who had been on medical
leave. For example, section 104(a)(4) does not supersede
a State law that requires specific medical certification
before the return to work of employees who have had a
particular illness and who have direct contact with the
public. . . .
6
(...continued)
a condition for returning to work must be job-related and
consistent with business necessity.
. . . If the above-referenced return-to-work medical certifi-
cation and fitness-for-duty examinations provisions in the
handbook and manual are a part of the CBA as you
have asked that we assume, then these provisions would
apply instead of the FMLA’s return-to-work certification
requirements. . . .
Opinion Letter, FMLA-113 (September 11, 2000). Thus, the
Department of Labor consistently has taken the position that
§ 2614(a)(4) means that return-to-work provisions set forth in
a CBA, whether providing greater or fewer protections to
employees than are explicitly set forth in the FMLA, take
precedence over the statutory protections provided to employees
in the Act.
No. 03-4204 27
S. Rep. 103-3, at 31 (1993). Additionally, the Department’s
interpretation avoids a construction of the statute that would
render the last clause of § 2614(a)(4) superfluous. If that
clause were interpreted to give CBA’s precedence over the
statutory protections only if those protections were greater
than that provided in the Act, then § 2614(a)(4) and § 2652
would provide the same guarantees. Finally, the Depart-
ment’s interpretation of § 2614 gives effect to the rule of
statutory construction that specific provisions take prece-
dence over more general provisions. Section 2652 speaks in
broad terms to the protections provided to employees by the
Act; § 2614(a)(4), however, addresses a very specific
issue—return-to-work certifications. Thus, with respect to
the specific right to which § 2614(a)(4) is
addressed—returning to work upon the certification of a
physician—a CBA, state statute or local ordinance, may take
precedence over the statutory protections provided by
other places in the Act.7
Because the Department of Labor’s regulations reasonably
interpret § 2614(a)(4) to allow a CBA to impose stricter
return-to-work restrictions than those otherwise incorpo-
rated into the FMLA, we defer to that interpretation and
hold that the Postal Service did not violate the FMLA when
it required Mr. Harrell to comply with the return-to-work
provisions set forth in the handbooks and manuals incorpo-
7
Mr. Harrell cites two district court opinions, Marrero v. Camden
County Board of Social Services, 164 F. Supp. 2d 455 (D.N.J. 2001),
and Routes v. Henderson, 58 F. Supp. 2d 959 (S.D. Ind. 1999), that
reach a different conclusion. For the reasons set forth in this
section, we respectfully disagree with those courts.
28 No. 03-4204
rated into the National Agreement.8
C. Contacting Employee’s Health Care Provider
Despite Mr. Harrell’s express refusal to give his con-
sent, the postal nurse contacted his personal physician
and requested additional medical information. The
district court determined that this contact violated the
FMLA, as provided in the statute’s accompanying regula-
tions:
If an employee submits a complete certification signed
by the health care provider, the employer may not
request additional information from the employer’s
health care provider. However, a health care provider
8
Mr. Harrell also argues that the Postal Service violated its own
regulations when it required that he undergo an examination by
a designated physician. He claims that the return-to-work
requirements do not specifically reference the portion of the
employee manual dedicated to FMLA leave, and, therefore, those
requirements are not meant to apply to the FMLA section. We
find this argument unpersuasive. Nothing in the language of the
statute or regulation suggests that a CBA’s return-to-work
provisions must specifically reference the FMLA or cross-
reference the section of the CBA dedicated to implementing the
FMLA in order to be effective.
Mr. Harrell also points to statements by Postal Service adminis-
trators, regarding the requirements for returning to work after
FMLA leave, made several years prior to Mr. Harrell’s illness and
attempted return-to-work. However, Mr. Harrell failed to
establish either that these statements represented the current
administrative practice under the existing CBA or Employee
Labor Relations Manual, or that he relied upon these statements
in refusing to undergo an examination by the Postal Service
physician.
No. 03-4204 29
representing the employer may contact the em-
ployee’s health care provider, with the employee’s
permission, for purposes of clarification and authenticity
of the medical certification.
29 C.F.R. § 825.307(a).
The rights established by the FMLA can be enforced
through civil actions. Section 2615 makes it “unlawful for
any employer to interfere with, restrain, or deny the exercise
of or the attempt to exercise, any right provided.” 29 U.S.C.
§ 2615(a)(1). An employer who violates this section shall be
“liable to any eligible employee affected” for compensatory
damages and “for such equitable relief as may be appropri-
ate, including employment, reinstatement, and promotion.”
Id. § 2617(a)(1).9 The district court ruled that Mr.Harrell was
9
The full text of § 2617(a)(1) reads:
(a) Civil action by employees
(1) Liability
Any employer who violates section 2615 of this title
shall be liable to any eligible employee affected—
(A) for damages equal to—
(i) the amount of—
(I) any wages, salary, employment benefits,
or other compensation denied or lost to
such employee by reason of the violation;
or
(II) in a case in which wages, salary, em-
ployment benefits, or other compensation
have not been denied or lost to the em-
ployee, any actual monetary losses sus-
tained by the employee as a direct result
(continued...)
30 No. 03-4204
not entitled to any damages on this claim because the
violation caused him no injury: Dr. Smith’s office refused to
release any medical information to the postal nurse absent
Mr. Harrell’s consent. This conclusion is correct. Our review
of the record also found no indication that any information
obtained from the postal nurse’s contact with Dr. Smith’s
office in any way compromised Mr. Harrell’s return-to-work
status or was a factor in the Postal Service’s decision to
terminate his employment. Section 2617 affords
(...continued)
of the violation, such as the cost of provid-
ing care, up to a sum equal to 12 weeks of
wages or salary for the employee;
(ii) the interest on the amount described in
clause (i) calculated at the prevailing rate; and
(iii) an additional amount as liquidated dam-
ages equal to the sum of the amount described
in clause (i) and the interest described in
clause (ii), except that if an employer who
has violated section 2615 of this title proves to
the satisfaction of the court that the act or
omission which violated section 2615 of this
title was in good faith and that the employer
had reasonable grounds for believing that the
act or omission was not a violation of section
2615 of this title, such court may, in the discre-
tion of the court, reduce the amount of the
liability to the amount and interest determined
under clauses (i) and (ii), respectively; and
(B) for such equitable relief as may be appropri-
ate, including employment, reinstatement, and
promotion.
29 U.S.C. § 2617(a)(1).
No. 03-4204 31
no relief unless the employee has been prejudiced by the
violation: The employer is liable only for compensation
and benefits lost “by reason of the violation,”
§ 2617(a)(1)(A)(i)(I), for other monetary losses sustained
“as a direct result of the violation,” § 2617(a)(1) (A)(i)(II),
and for “appropriate” equitable relief, including employ-
ment, reinstatement, and promotion, § 2617(a)(1)(B). The
remedy is tailored to the harm suffered.
Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 88-90
(2002).10 Because Mr. Harrell was not harmed by the unau-
thorized contact with his physician, § 2617 provides him no
remedy, including equitable relief, and the district court
correctly granted the Postal Service summary judgment on
this claim.
D. Notice Requirements
Finally, Mr. Harrell alleges that the Postal Service inter-
fered with his FMLA rights by failing to provide him with
10
See also Cianci v. Pettibone Corp., 152 F.3d 723, 728-29 (7th Cir.
1998) (holding that plaintiff had no claim under FMLA be-
cause she had suffered no diminution in income and incurred
no costs as a result of alleged violation); see also Cavin v. Honda of
American Mfg., Inc., 346 F.3d 713, 726 (6th Cir. 2003) (“Even when
an employee proves that his employer violated § 2615, ‘§ 2617
provides no relief unless the employee has been prejudiced by the
violation’ ” (quoting Ragsdale v. Wolverine World Wide, Inc., 535
U.S. 81, 88-90 (2002)); Sarno v. Douglas Elliman-Gibbons & Ives, Inc.,
183 F.3d 155, 162 (2d Cir. 1999) (concluding that the FMLA does
not give “an employee a right to sue the employer for failing to
give notice of the terms of the Act where the lack of notice had no
effect on the employee’s exercise of or attempt to exercise any
substantive right conferred by the Act”).
32 No. 03-4204
timely and sufficient notice of the requirements for returning
to work and of the consequences for failing to comply with
those requirements. The Act’s implementing regulations
require that an employer must provide notice “detailing the
specific expectations and obligations of the employee and
explaining any consequences of a failure to meet these
obligations,” 29 C.F.R. § 825.301(b), “within a reasonable
time after notice of the need for leave is given by the
employee—within one or two business days if feasible,” id.§ 825.301(c). If the employer fails to provide adequate and
timely notice, it “may not take action against an employee
for failure to comply with any provision required to be set
forth in the notice.” Id. § 825.301(f).
The district court concluded that Mr. Harrell’s claim
was “belied by his deposition testimony in which he admits
that he was aware of the USPS regulations concerning
returning to work following an absence of more than 21
days.” R.41 at 11. The court found, moreover, that, upon
realizing that Mr. Harrell’s leave would exceed twenty-one
days, Cussins mailed to him a letter outlining in detail the
return-to-work certification requirements. In addition, Mr.
Harrell discussed his alternatives with Cussins when he first
had attempted to return to work.
Mr. Harrell contends that the Postal Service was re-
quired to inform him of his return-to-work obligations at the
time he requested FMLA leave, not at the time he attempted
to return to work. On February 2, and again on February 23,
2000, Mr. Harrell notified his supervisors that he might be
absent for up to four weeks. The Postal Service initially
advised him of its return-to-work requirements by letter
dated February 23, 2000. Although, according to Mr. Harrell,
he did not receive this letter until March 7 (the day after he
attempted to return to work), nothing in the record suggests
No. 03-4204 33
that the Postal Service delayed in attempting to notify Mr.
Harrell of his obligations within a reasonable time after he
advised the Postal Service that he needed to take an ex-
tended absence.
Furthermore, even assuming that the Postal Service
failed to provide adequate notice, Mr. Harrell was not
harmed by this violation. On March 6, 2000, when Mr.
Harrell attempted to return to work, he was told by Cussins
what he needed to do in order to be cleared for work. By
letters dated March 9 and March 15, 2000, the Postal Service
reiterated to Mr. Harrell his return-to-work obligations and
told him that he would be subject to removal if he failed to
comply with those conditions. Then, when Mr. Harrell
responded by letter on March 21, the Postal Service sent him
another letter requesting an opportunity to review medical
documentation from his health care provider and scheduling
an appointment for him to be examined by a USPS-contract
physician. Mr. Harrell again refused this request. The Postal
Service did not terminate his employment until April 27,
2000.
This chronology demonstrates that Mr. Harrell had
ample notice of the Postal Service’s expectations and of
his obligations related to returning to work. We conclude
that, on this record, the district court’s grant of summary
judgment in favor of the Postal Service was appropriate
on this claim.
Conclusion
Accordingly, for the foregoing reasons, we affirm the
judgment of the district court.
AFFIRMED
34 No. 03-4204
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-4-06