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 ____________
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 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 has appealed. For the reasons set forth in the following opinion, we affirm in 2 No. 03-4204
part and reverse in part the judgment of the district court and remand for further proceedings.
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 mem- ber 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 bar- gaining 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 concen- trating. 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 inclusive dates you were unable to work, and any medi- cines you are taking. This medical information is to be reviewed by the Postal Medical Officer. No. 03-4204 3
(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 submit- ted by Mr. Harrell to the postal nurse for review. The postal nurse reviewed the February 10 and February 23 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 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. 4 No. 03-4204
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 medical certification. This certification must include evidence of your ability to return to work, with or without limita- tions. 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 docu- mentation within five days, he would be considered absent without leave and subject to discipline, including 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 ab- sent without leave and scheduled a predisciplinary hearing for March 17. The letter advised that failure to appear could result in disciplinary action, including removal. On March 22, the Postal Service sent Mr. Harrell a notice of removal. 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 as- serted 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- No. 03-4204 5
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 physician that includes all the required information. We have scheduled the following appointment for you to be ex- amined 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.
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 sub- mit 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 6 No. 03-4204
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 re- turn 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 collective bargaining agreement 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). 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. No. 03-4204 7
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, controlled Mr. Harrell’s right to reinstatement. In addition, the district court found that the postal regulations justified the Postal Service’s requirement that Mr. Harrell provide more de- tailed 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 re- quirements 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 employees 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, however, given the modest and seemingly simple certi- fication 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. Alter- natively, 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 abrogates Harrell’s right of restoration under the FMLA. R.41 at 9. 8 No. 03-4204
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 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 release any information that contributed to his termination.
II DISCUSSION A. Standard of Review We review a district court’s grant or denial of summary judgment de novo. Tutman v. WBBM-TV, Inc./CBS, Inc., 209 No. 03-4204 9
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 so- cial changes that have intensified the tensions between work and family. This failure continues to impose a heavy burden on families, employees, employers and the broader society. [This legislation] provides a sensi- ble 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 placement 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 em- ployee himself to perform the functions of his position be- 10 No. 03-4204
cause 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. 1 § 2614(a)(1); see also 29 C.F.R. § 825.214(a). To protect these 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-per-
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 conditions of employment. 29 U.S.C. § 2614(a)(1). No. 03-4204 11
formance 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 posi- 2 tion. 29 C.F.R. § 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
2 The Department of Labor regulations discuss an employee’s right to restoration: (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 of 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. 12 No. 03-4204
certification from their personal health care provider indi- cating 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 supersede 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 provisions and a collective bargaining agreement 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 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, re- quirements 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- No. 03-4204 13
ployee’s fitness to return to work. No additional infor- mation may be acquired, and clarification may be re- quested 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 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 regu- lations 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 ar- guing 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 provisions 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. 14 No. 03-4204
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 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 No. 03-4204 15
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 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 “per- mit[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 Agree- ment incorporates the postal handbooks and manuals that relate to employees’ return to work. 16 No. 03-4204
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 man- uals 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 to wages, hours or working conditions, as they apply to employees covered by this Agreement, shall contain 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 equi- table. 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 handbooks 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 Agreement because they were promulgated unilaterally by the Postal Service, rather than through any collective bar- gaining 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 condi- tions are incorporated by reference into the National Agreement. See Woodman v. Runyon, 132 F.3d 1330, 1334 No. 03-4204 17
(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) (con- cluding that Postal Service employee suggestion program was incorporated into the National Agreement through the postal manual because Article 19 “incorporates by reference all 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 Serv. 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 Agreement have maintained previously that the postal 18 No. 03-4204
handbooks and manuals 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.
3. Diminishment of FMLA Rights Mr. Harrell next contends that, even if the postal return- to-work regulations are part of a valid collective bargaining agreement, the Postal Service was not allowed to impose any condition on his return that is more stringent than the provisions of the FMLA, and, by doing so, the Postal Service violated rights protected by the FMLA. Put another way, Mr. Harrell asserts that, although the Postal Service was allowed to have a uniform fitness certification policy under 29 U.S.C. § 2614(a)(4), this certification can be only a simple statement from the employee’s health care provider that he is able to work. See 29 C.F.R. § 825.310(c). Mr. Harrell sub- mits that because Dr. Smith cleared him for work without restrictions, the Postal Service was not authorized to impose a more stringent certification requirement, even if such a requirement was part of the governing collective bargaining agreement. He contends that the Postal Service essentially wants to control the determination of whether a postal employee is fit to return to work. This argument presents the pivotal issue in this case: whether the Postal Service can rely upon its own return-to- work regulations, as incorporated into a valid collective bar- gaining agreement, to impose requirements on employees No. 03-4204 19
that are more burdensome than what is required by the return-to-work provisions of the FMLA. To resolve this issue, we must consider the interplay between 29 U.S.C. § 2614 and § 2652. 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 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. 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 collective 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. Although the regulations accompanying § 2614(a)(4) provide that the certification required by employers “need only be a simple statement of an employee’s ability to return to work,” 29 C.F.R. § 825.310(c), the regulations also provide that, “if . . . the terms of a collective bargaining agreement govern an employee’s return to work, those provisions shall be applied,” id. § 825.310(b). 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 20 No. 03-4204
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 diminished by any collective bargaining agreement or any employment benefit program or plan. 29 U.S.C. § 2652 (emphasis added). The legislative history to this section adds that “[subsection (a)] specifies that em- ployees must continue to comply with collective bargaining agreements or employment 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 (explaining 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”). The legislative history also indicates that Congress intended for the Act to accommodate[ ] the important societal interest in assist- ing families, by establishing a minimum labor standard for leave. The bill is based on the same principle as the child labor laws, the minimum wage, Social Security, the safety and health laws, the pension and welfare benefit laws, and other labor laws that establish mini- mum standards for employment. Id. at 4. To give effect to the right to take leave under the FMLA, Congress designed the statute to require employers to No. 03-4204 21
restore employees to work after taking such leave upon a basic showing of being able to perform their duties, which is done by a simple statement to that effect from one’s own physician. The statute does indicate that the conditions by which an employee returns to work can be other than those contemplated by the statute and its implementing regula- tions, if those conditions are set forth in a governing col- lective bargaining agreement. However, any provision of a collective bargaining agreement that replaces provisions of the Act or its regulations must grant more or equal, not less, protection to the employee. This reading of the statute seems to us to be the only reasonable way to harmonize the plain wording of the two sections. We therefore cannot accept the suggestion in the Postal Service’s brief that the FMLA permits an employer to follow the collective bargain- ing agreement, even when that agreement imposes greater burdens on employees’ return to work than provided under the statute and regulations. Such a reading would give more force to the general terms of § 2614 over the more particular 3 terms of § 2652.
3 See Marrero v. Camden County Bd. of Soc. Servs., 164 F. Supp. 2d 455, 463 (D.N.J. 2001) (reading 29 U.S.C. § 2652(b) to invalidate employer’s sick leave policy, and a governing collective bargain- ing agreement, to the extent they diminished the rights created by the FMLA, and stating that, “where an employer’s internal policies conflict with the provisions of the FMLA, the FMLA con- trols and the employee need only comply with the requirements of the Act to invoke its protections”); Routes v. Henderson, 58 F. Supp. 2d 959, 994 (S.D. Ind. 1999) (“By expressly stating that a CBA cannot diminish the employee’s FMLA rights, but can only provide greater rights, Congress clarified the expected inter- relationship between a valid CBA provision and § 2614(a)(4). If (continued...) 22 No. 03-4204
We now turn to the application of this basic statutory structure to the situation before us. The district court was of the view that the statute permits the Postal Service to impose stricter return-to-work conditions than those in the FMLA so long as the conditions involve how an employee 4 returns to work. This distinction between substance and
3 (...continued) the designated leave provision of the CBA were read the way the USPS asks, it would diminish the right of restoration established in the FMLA by allowing the USPS to implement its more restrictive return to work policies. Such a result would violate the FMLA.”). 4 To support its reading of 29 U.S.C. § 2614 and § 2652, the Postal Service points to an opinion letter issued by the Department of Labor on September 11, 2000, which states in part: As a condition of restoration, the FMLA permits an employer that has a uniformly-applied policy or practice to require all employees, or only certain employees, who take leave for their own serious health condition to provide a return-to- work certification from their health care provider. The certification need only be a simple statement of an em- ployee’s ability to work and must relate only to the particular health condition that caused the employee’s need for FMLA leave. Under this provision, an employer may not impose additional requirements. These fitness-for-duty certification provisions, however, do not supersede any valid State or local law or CBA that governs return to work for such employees. (See 29 U.S.C. § 2614(a)(4) and 29 C.F.R. § 825.310.) How FMLA’s certification provisions interact with the terms of a CBA that govern an employee’s reinstatement is specifically discussed in § 825.310(b) of the regulations. If the terms of the CBA, for instance, require a fitness-for-duty examination in addition to a return-to-work certification, then those terms apply with certain conditions. . . . (continued...) No. 03-4204 23
procedure is not a useful instrument in determining whether the conditions of reinstatement imposed by the employer are more onerous than the requirements under the FMLA. As evidenced by the statute and its accompanying 5 regulations, it is clear that such a distinction is not compati- ble with the statutory scheme. The true inquiry is whether the employer’s requirements—whether procedural or substantive—impose a greater burden on an employee than the statute and accompanying regulations. The district court believed that a collective bargaining agreement could impose more burdensome conditions on
4 (...continued) If the . . . return-to-work medical certification and fitness- for-duty examination provisions in the [postal] handbook and manual are a part of the CBA as you have asked that we assume, then these provisions would apply instead of FMLA’s return-to-work certification requirements. If these provisions are not part of the CBA, then FMLA’s return-to- work certification requirements would apply. R.27, Ex.K at 1-2; Appellee’s Br. at 26-27. Notably, the Department of Labor’s opinion does not consider the potential conflict between the language in 29 U.S.C. § 2614(a)(4) and 29 C.F.R. § 825.310(b) and the language in 29 U.S.C. § 2652, which is the heart of the issue before us. 5 The Department of Labor commentary to its Final Rule, 29 C.F.R. part 825, states in part: FMLA provides that it shall not supersede “any provision” of any State or local law that provides greater family or medical leave “rights” than under FMLA. There is no basis under this language or the legislative history to distinguish between procedural provisions that extend greater rights to employees and substantive provisions that provide more generous family or medical leave benefits to employees. 60 Fed. Reg. 2231 (1995). 24 No. 03-4204
employees. Indeed, as far as we can tell from its submis- sions, the Postal Service is of the view that it can impose the same fit-for-duty examination that it would require in a situation not governed by the FMLA (when, for instance, it questions whether an employee has the physical quali- fication to continue working). However, the provisions of the FMLA simply require an employer to rely on the evaluation of the employee’s own health care provider; the return-to-work certification need not contain specific information regarding diagnosis, prognosis, treatment and medication. The Postal Service regulations, as presented to us in this litigation, impose a greater burden on the employee and therefore cannot be employed, consistent with § 2652, in implementing the return-to-work provisions of the FMLA. It is important to note, however, that nothing in the FMLA, or its implementing regulations, forbids a more stringent fit-for-duty examination once the employee has returned from FMLA leave, so long as any such exami- nation is job-related and consistent with business necessity 6 in accordance with Americans with Disabilities Act guide- lines. The FMLA and its regulations simply prevent an employer, including the Postal Service, from denying a return to work by an employee who has been absent on FMLA leave and who presents, upon his return, the requisite certification from his physician. If the employer has further doubts about the employee’s ability to do his job, it is free to address that issue after the employee is reinstated from 7 FMLA leave.
6 42 U.S.C. § 12101 et seq. 7 Because we have determined that the Postal Service regulations impose an impermissible burden on Mr. Harrell’s FMLA rights, we need not reach his argument that the Postal Service in this (continued...) No. 03-4204 25
C. Contacting Employee’s Health Care Provider Despite Mr. Harrell’s express refusal to give his consent, the postal nurse contacted his personal physician and re- quested additional medical information. The district court determined that this contact violated the FMLA, as pro- vided in the statute’s accompanying regulations: If an employee submits a complete certification signed by the health care provider, the employer may not re- quest additional information from the employer’s health care provider. However, a health care provider repre- senting the employer may contact the employee’s health care provider, with the employee’s permission, for pur- poses 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.” 8 Id. § 2617(a)(1). The district court ruled
(...continued) case violated its own regulations. 8 The full text of § 2617(a)(1) reads: (a) Civil action by employees (continued...) 26 No. 03-4204
(...continued) (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, employment benefits, or other compensa- tion have not been denied or lost to the employee, any actual monetary losses sus- tained by the employee as a direct result of the violation, such as the cost of providing 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 satisfac- tion 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 discretion of the court, reduce the amount of the liability to the amount (continued...) No. 03-4204 27
that Mr.Harrell was not entitled to any damages on this claim because the violation caused him no injury: Dr. Smith’s office refused to release any medical informa- tion 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 compro- mised Mr. Harrell’s return-to-work status or was a factor in the Postal Service’s decision to terminate his employment. Section 2617 affords 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, includ- ing employment, 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 9 (2002). Because Mr. Harrell was not harmed by the unau
(...continued) and interest determined under clauses (i) and (ii), respectively; and (B) for such equitable relief as may be appropriate, including employment, reinstatement, and promo- tion. 29 U.S.C. § 2617(a)(1). 9 See also Cianci v. Pettibone Corp., 152 F.3d 723, 728-29 (7th Cir. 1998) (holding that plaintiff had no claim under FMLA because she had suffered no diminution in income and incurred no costs (continued...) 28 No. 03-4204
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 in- terfered with his FMLA rights by failing to provide him with 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).
9 (...continued) as a result of alleged violation); see also Cavin v. Honda of America Mfg., Inc., 346 F.3d 713, 726 (6th Cir. 2003) (“Even when an em- ployee proves that his employer violated § 2615, ‘§ 2617 provides no relief unless the employee has been prejudiced by the viola- tion’ ” (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”). No. 03-4204 29
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 required 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 22, 2000, Mr. Harrell notified his supervisors that he might be absent for up to four weeks. The Postal Service initially ad- vised 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 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 at- tempted 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 reit- erated 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 30 No. 03-4204
documentation from his health care provider and schedul- ing 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 obli- gations 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 insofar as it holds that the doctrine of collateral estoppel is inapplicable to this claim. We also affirm the court’s judgment insofar as it determined that the provisions of the postal handbooks and manuals affecting employees’ return to work after leave are incorpo- rated into the National Agreement. We also affirm the court’s judgment insofar as it holds that Mr. Harrell cannot recover damages on the ground that the USPS contacted his health care provider because he has not been able to show that he was harmed by the unauthorized contact. We further affirm the judgment of the district court insofar as it con- cluded that Mr. Harrell was notified adequately of the USPS’ requirements for returning to work. We reverse the district court’s judgment insofar as it held that the USPS’ return-to-work regulations may impose a greater burden on the employee than those imposed by the FMLA and its regulations. The parties shall bear their own costs in this court. AFFIRMED in part; REVERSED and REMANDED in part No. 03-4204 31
A true Copy: Teste:
_____________________________ Clerk of the United States Court of Appeals for the Seventh Circuit
USCA-02-C-0072—7-19-05