Harrell, Rodney v. USPS

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