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

REARGUED DECEMBER 9, 2005—DECIDED MAY 4, 2006

____________

Before FLAUM, Chief Judge, and RIPPLE and WILLIAMS,

Circuit Judges.

RIPPLE, Circuit Judge. Rodney Harrell filed this action

against his former employer, the United States Postal

Service (“USPS” or “Postal Service”), alleging violations

of the Family and Medical Leave Act (“FMLA” or “Act”), 29

U.S.C. § 2601 et seq. The parties filed cross-motions for

summary judgment, and the district court granted summary

judgment in favor of the Postal Service. Mr. Harrell ap-

pealed. This panel initially affirmed in part and reversed in

part the judgment of the district court. On the petition of the

2 No. 03-4204

Postal Service, with the United States Department of Labor

(“Department”) as amicus curiae, the panel granted rehear-

ing. For the reasons set forth in the following opinion, we

affirm the judgment of the district court in its entirety.

I

BACKGROUND

A. Facts

Mr. Harrell began working for the Postal Service in 1984

as a clerk at the Decatur, Illinois post office. He was a

member of a collective bargaining unit represented by

the American Postal Workers Union, AFL-CIO (“APWU” or

“Union”), and he was covered by a national collective

bargaining agreement between the APWU and the

Postal Service known as the National Agreement.

On February 2, 2000, Mr. Harrell felt ill and left work

early. On February 10, 2000, he submitted to the Postal

Service a medical form completed by his physician, Dr.

Robert Smith, which certified that his absence was due

to fatigue, stress, sleep disturbance and difficulty con-

centrating. Dr. Smith indicated that the health problems had

begun on February 2 and probably would last four weeks.

On February 23, 2000, Mr. Harrell submitted a second health

certification, in which Dr. Smith estimated that he would be

able to resume work on March 6, 2000.

The Postal Service responded by a letter dated February

23, 2000, and advised Mr. Harrell that, according to postal

regulations, in order to return to work,

(1) You must submit medical documentation outlining

the nature and treatment of the illness or injury, the

No. 03-4204 3

inclusive dates you were unable to work, and any

medicines you are taking. This medical information is to

be reviewed by the Postal Medical Officer.

(2) You may be required to be examined by the

Postal Medical Officer after your documentation is

reviewed. The bill for this release for work exam will be

paid by the Postal Service.

R.27, Ex.A, Ex.3. Mr. Harrell maintains that he did not

receive this letter until March 7, 2000.

Mr. Harrell attempted to return to his job on March 6.

However, Jane Cussins, the Decatur post office supervisor,

informed him that he had not been cleared to return to

work; at that time she explained the applicable postal

regulations to Mr. Harrell. In order to facilitate the clearance

process, Cussins made him an appointment for an examina-

tion by the USPS-contract physician for later that morning.

Mr. Harrell went to the physician’s office, but he refused to

consent to an examination because he believed that he

already had provided the Postal Service with sufficient

medical information to entitle him, under the FMLA, to

return to work. Mr. Harrell returned to Cussins’ office,

and she told him that she would fax the documentation

submitted by Mr. Harrell to the postal nurse for review.

The postal nurse reviewed the February 10 and Feb-

ruary 22 certifications submitted by Mr. Harrell, and she

concluded that the information was insufficient to clear him

for duty. Specifically, the forms had no information about

continuing medications, restrictions on Mr. Harrell’s ability

to work or when he had been declared fit to return to

work. On March 10, 2000, the postal nurse called Mr. Harrell

to obtain his physician’s contact information; he refused to

provide the information and expressly stated that he did not

4 No. 03-4204

want her to contact his physician. Two weeks later, nonethe-

less, the postal nurse faxed a return-to-work form to Dr.

Smith’s office. The office refused to release any medical

information without Mr. Harrell’s consent.

In the meantime, the Postal Service mailed Mr. Harrell

a letter dated March 9, 2000, reminding him that

employees returning to duty after 21 days or more of

absence due to illness or serious injury require med-

ical certification. This certification must include evi-

dence of your ability to return to work, with or without

limitations. A medical officer or contract physician

evaluates the medical report and makes a medical

assessment as to your ability to return to work before

you are allowed to return.

R.27, Ex.A, Ex.5. The letter also explained that the forms

prepared by Dr. Smith, which had explained Mr. Harrell’s

need for leave, were insufficient to clear him for duty

because they did not describe the nature of treatment he

received or list any medications he was taking. Finally,

the letter advised that, if he did not present appropriate

documentation within five days, he would be considered

absent without leave and subject to discipline, includ-

ing removal. This letter was sent by both regular and

certified mail.

On March 15, 2000, having not received a reply from

Mr. Harrell, the Postal Service mailed him another letter

(also via regular and certified mail) which declared him

absent without leave and scheduled a predisciplinary

hearing for March 17. The letter advised that failure to

appear could result in disciplinary action, including re-

moval. On March 22, the Postal Service sent Mr. Harrell a

notice of removal.

No. 03-4204 5

On March 21, 2000, Mr. Harrell sent a letter to the Postal

Service. He maintained that he had not received the March 9

and March 15 warning letters until March 20. He also

asserted that the medical documentation he had provided

in order to qualify his absence as FMLA leave was sufficient

by law to entitle him to return to work. Despite this belief,

Mr. Harrell returned to Dr. Smith and obtained a return-to-

work certification. The certification, dated March 23, 2000,

stated that Mr. Harrell was “fit to return to work without

restrictions.” R.27, Ex.A, Ex.7.

The Postal Service responded to Mr. Harrell by letter

on March 31, 2000, which advised:

You were notified in writing on February 23, 2000, that

this medical documentation had to include the nature of

treatment of your illness and any medicines you were

taking. You have again failed to provide medical

documentation adequate for the Postal Medical Officer

to make a determination as to your ability to return to

work.

In conclusion, we want the opportunity to review

medical documentation from your attending physi-

cian that includes all the required information. We have

scheduled the following appointment for you to be

examined by the Postal contract physician.

R.22, Ex.6, Ex.10. Mr. Harrell again refused to provide

further information or to submit to an examination. By letter

dated April 27, 2000, the Postal Service terminated

his employment.

6 No. 03-4204

B. District Court Proceedings

Mr. Harrell alleged that the Postal Service violated the

FMLA in five ways: (1) failing to restore him to work after

he presented a medical clearance; (2) requiring him to

submit to a medical examination by a USPS-contract

physician prior to allowing him to return to work; (3)

terminating his employment because he took FMLA leave;

(4) contacting his physician without his consent; and (5)

failing to provide him with notice of the Postal Service’s

return-to-work requirements and the consequences of not

complying with those requirements. The parties filed cross-

motions for summary judgment, and the district court

granted summary judgment in favor of the Postal Service.

1.

With respect to Mr. Harrell’s first three claims, the

Postal Service asserted that the conditions it had placed

on his return to work were permitted by the National

Agreement that incorporated by reference the postal

handbooks and manuals governing employees’ leave.

Specifically, the Postal Service contended that any return-to-

work certification requirements included in a collec-

tive bargaining agreement (“CBA”) take precedence over

the FMLA’s return-to-work provisions under 29 U.S.C.

§ 2614(a)(4), which provides that employers may impose

a uniformly applied practice or policy that requires each

employee to receive certification from the health care

provider of the employee that the employee is able to

resume work, except that nothing in this paragraph shall

supersede a valid State or local law or a collective bargaining

agreement that governs the return to work of such employees.

Id. (emphasis added).

No. 03-4204 7

Mr. Harrell contended that the Postal Service was pre-

cluded from arguing that the National Agreement incorpo-

rated the postal regulations governing return to work after

FMLA leave because the Postal Service previously made,

and lost, the same argument in a different case. The district

court, however, determined that United States v. Mendoza,

464 U.S. 154, 162 (1984), did not allow Mr. Harrell to invoke

the doctrine of collateral estoppel offensively against the

United States based on a litigation to which he was not a

party.

The district court then concluded that the postal hand-

books and manuals are part of the National Agreement.

It further determined that, because the postal regulations

had the force of a valid collective bargaining agreement,

those regulations, and not the FMLA’s provisions, con-

trolled Mr. Harrell’s right to reinstatement. In addition,

the district court found that the postal regulations justi-

fied the Postal Service’s requirement that Mr. Harrell

provide more detailed medical documentation from his

health care provider or submit to a medical examination

by a USPS-contract physician. Moreover, the district

court believed that such requirements did not diminish

any substantive right provided by the FMLA. The court took

the view that

USPS employees always have the right guaranteed

by the FMLA to be restored to their employment

following FMLA leave. The agreement and the USPS

regulations merely alter the procedure by which em-

ployees go about being restored.

It is possible to imagine a situation in which altering

the procedure attached to a certain substantive right

would in essence impinge on or prohibit the exercise

of that right. This case does not present such a situation,

8 No. 03-4204

however, given the modest and seemingly simple

certification process the USPS imposes for employees

who exceed 21 days of FMLA leave. Cussins was able to

make Harrell an appointment with the contract doctor

on the very morning he sought to return to work.

Alternatively, the [postal nurse] needed only two single-

sided forms filled out by a doctor, noting Harrell’s

condition, treatment, medication, and work restrictions.

Neither process is so onerous that it effectively abro-

gates Harrell’s right of restoration under the FMLA.

R.41 at 9.

2.

Next, the district court granted the Postal Service sum-

mary judgment on the claim that it had failed to provide Mr.

Harrell with adequate notice of the requirements for

returning to work and of the consequences for not meeting

those requirements. See 29 C.F.R. § 825.310(c). The district

court pointed to Mr. Harrell’s “deposition testimony in

which he admits that he was aware of the USPS regulations

concerning returning to work following an absence of more

than 21 days.” R.41 at 11. The court noted, moreover, that

Mr. Harrell was informed of the return-to-work require-

ments by the letters from the Postal Service and by Cussins,

to whom he had spoken when he attempted to return to

work.

3.

Finally, the district court granted the Postal Service

summary judgment on Mr. Harrell’s claim that the Postal

Service had violated the FMLA by contacting his personal

No. 03-4204 9

physician without his consent. See 29 C.F.R. § 825.310(c).

Although the district court found that a violation had

occurred, it dismissed the claim because Mr. Harrell had

suffered no injury in that Dr. Smith’s office did not re-

lease any information that contributed to his termination.

II

DISCUSSION

A. Standard of Review

We review a district court’s grant or denial of sum-

mary judgment de novo. Tutman v. WBBM-TV, Inc./CBS, Inc.,

209 F.3d 1044, 1048 (7th Cir. 2000). In doing so, we construe

all facts and reasonable inferences in the light most favorable

to the nonmoving party. Id. Summary judgment is proper if

“the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.

317, 322-23 (1986).

B. Failure to Return to Work

Congress enacted the FMLA in order to assist workers

in meeting the needs of their families and the demands

of their jobs. See Price v. City of Fort Wayne, 117 F.3d 1022,

1023 (7th Cir. 1997). The statute responded to the perception

that

[p]rivate sector practices and government policies

have failed to adequately respond to recent economic

and social changes that have intensified the tensions

between work and family. This failure continues to

10 No. 03-4204

impose a heavy burden on families, employees, employ-

ers and the broader society. [This legislation] provides a

sensible response to the growing conflict between work

and family by establishing a right to unpaid family and

medical leave for all workers covered under the act.

S. Rep. No. 103-3, at 4 (1993), reprinted in 1993 U.S.C.C.A.N.

2, 6 (“S. Rep. 103-3”). The FMLA makes available to

eligible employees up to twelve weeks of leave during any

twelve-month period for one or more of the following

reasons: (1) the birth of the employee’s child; (2) the place-

ment of a child with the employee for adoption or foster

care; (3) the care of the employee’s child, spouse or parent

who has a serious health condition; and (4) the inability of

the employee himself to perform the functions of his position

because of a serious health condition. 29 U.S.C. § 2612(a)(1).

At the conclusion of a qualified-leave period, the employee

is entitled to return to his former position of employment, or

to an equivalent one, with the same terms and benefits. Id.

§ 2614(a)(1);1 see also 29 C.F.R. § 825.214(a). To protect these

1

Section 2614(a)(1) provides:

(1) In general

Except as provided in subsection (b) of this section, any

eligible employee who takes leave under section 2612 of

this title for the intended purpose of the leave shall be

entitled, on return from such leave—

(A) to be restored by the employer to the position of

employment held by the employee when the leave

commenced; or

(B) to be restored to an equivalent position with equiva-

lent employment benefits, pay, and other terms and

(continued...)

No. 03-4204 11

rights, the FMLA declares it “unlawful for any employer to

interfere with, restrain, or deny the exercise of or the attempt

to exercise, any right provided.” 29 U.S.C. § 2615(a)(1). In

this case, Mr. Harrell contends that the Postal Service

violated his rights under the FMLA by refusing to return

him to his position after his physician provided an unquali-

fied certification of his fitness to return to duty.

An employee’s right to return to work after taking

FMLA leave is not unlimited. The Act seeks to accomplish its

purposes “in a manner that accommodates the legitimate

interests of employers.” 29 U.S.C. § 2601(b)(3); see also 29

C.F.R. § 825.101(b) (“The enactment of the FMLA was

predicated on two fundamental concerns—the needs of the

American workforce, and the development of high-perfor-

mance organizations.”). An employee is not entitled to “any

right, benefit, or position of employment other than any

right, benefit, or position to which the employee would have

been entitled had the employee not taken the leave.” 29

U.S.C. § 2614(a)(3)(B); see also 29 C.F.R. § 825.216(a) (“An

employee has no greater right to reinstatement or to other

benefits and conditions of employment than if the employee

had been continuously employed during the FMLA leave

period.”). An employee returning from FMLA leave also is

not entitled to restoration if he cannot perform the essential

functions of the position or an equivalent position.2 29 C.F.R.

1

(...continued)

conditions of employment.

29 U.S.C. § 2614(a)(1).

2

The Department of Labor regulations discuss an employee’s

right to restoration:

(continued...)

12 No. 03-4204

§ 825.214(b).

In addition, the Act permits an employer, as a condition of

restoring employees who take FMLA leave, to have a policy

that requires all such employees to obtain medical certifica-

tion from their personal health care provider indicating that

the employee is able to resume work. 29 U.S.C. § 2614(a)(4).

The Act provides that nothing in § 2614(a)(4) “shall super-

sede a valid State or local law or a collective bargaining

agreement that governs the return to work of employees.” Id.

The interplay between the FMLA’s return-to-work provi-

sions and a CBA that governs the return of employees who

take leave due to a serious health condition is discussed in

the statute’s accompanying regulations:

(a) As a condition of restoring an employee whose

FMLA leave was occasioned by the employee’s own

serious health condition that made the employee unable

(...continued)

(a) On return from FMLA leave, an employee is entitled to be

returned to the same position the employee held when leave

commenced, or to an equivalent position with equivalent

benefits, pay, and other terms and conditions or employ-

ment. An employee is entitled to such reinstatement even if

the employee has been replaced or his or her position has

been restructured to accommodate the employee’s absence.

See also § 825.106(e) for the obligations of joint employers.

(b) If the employee is unable to perform an essential function

of the position because of a physical or mental condition,

including the continuation of a serious health condition, the

employee has no right to restoration to another position

under the FMLA. However, the employer’s obligations may

be governed by the Americans with Disabilities Act (ADA).

See § 825.702.

29 C.F.R. § 825.214.

No. 03-4204 13

to perform the employee’s job, an employer may have a

uniformly-applied policy or practice that requires all

similarly-situated employees (i.e., same occupation,

same serious health condition) who take leave for such

conditions to obtain and present certification from the

employee’s health care provider that the employee is

able to resume work.

(b) If State or local law or the terms of a collective

bargaining agreement govern an employee’s return to

work, those provisions shall be applied. Similarly,

requirements under the Americans with Disabilities Act

(ADA) that any return-to-work physical be job-related

and consistent with business necessity apply. . . .

(c) An employer may seek fitness-for-duty certifica-

tion only with regard to the particular health condition

that caused the employee’s need for FMLA leave. The

certification itself need only be a simple statement of an

employee’s ability to return to work. A health care

provider employed by the employer may contact the

employee’s health care provider with the employee’s

permission, for purposes of clarification of the em-

ployee’s fitness to return to work. No additional infor-

mation may be acquired, and clarification may

be requested only for the serious health condition

for which FMLA leave was taken. The employer may not

delay the employee’s return to work while contact with

the health care provider is being made.

29 C.F.R. § 825.310(a)-(c).

In the present case, the Postal Service maintains that it had

the right, under the FMLA, to require Mr. Harrell to provide

sufficient medical documentation from his health care

provider or to be cleared for duty by a USPS-contract

physician, as a condition of returning to work. In the Postal

14 No. 03-4204

Service’s view it appropriately employed, under 29 U.S.C.

§ 2614(a)(4), a uniform practice requiring employees to

provide a fitness-for-duty certification from their personal

health care provider; and, although the accompanying

regulations provide that this certification need only be a

simple statement of the employee’s ability to work, see 29

C.F.R. § 825.310(c), the FMLA’s certification provisions do

not supersede a valid collective bargaining agreement that

governs return to work for such employees, see 29 U.S.C.

§ 2614(a)(4); 29 C.F.R. § 825.310(b).

Mr. Harrell challenges this theory on four grounds: (1)

collateral estoppel forecloses the Postal Service from arguing

that the terms of the National Agreement allow it to limit

postal employees’ right to return to work after FMLA leave;

(2) the postal handbooks and manuals are not part of the

National Agreement; (3) the postal return-to-work provi-

sions are invalid because they diminish a substantive right

afforded by the FMLA; and (4) the requirements imposed by

the Postal Service in this case contravened the postal return-

to-work provisions. We shall address these issues in turn.

1. Collateral Estoppel

Mr. Harrell first contends that the Postal Service is pre-

cluded from arguing that its handbooks and manuals are

negotiated parts of the National Agreement because it raised

and lost this argument in Routes v. Henderson, 58 F. Supp. 2d

959, 994 (S.D. Ind. 1999). The doctrine of collateral estoppel

provides that “once a court has decided an issue of fact or

law necessary to its judgment, that decision is conclusive in

a subsequent suit based on a different cause of action

involving a party to the prior litigation.” Mendoza, 464 U.S.

at 158. The “offensive use of collateral estoppel occurs when

No. 03-4204 15

a plaintiff seeks to foreclose a defendant from relitigating an

issue the defendant has previously litigated unsuccessfully

in another action against the same or a different party.” Id.

at 159 n.4. Mr. Harrell seeks to invoke nonmutual collateral

estoppel, which occurs when the plaintiff was a nonparty to

the prior lawsuit. Id. The district court determined that

applying this doctrine against the Postal Service was not

appropriate. We review a district court’s decision whether to

apply offensive collateral estoppel for an abuse of discretion.

Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331 (1979).

As the district court recognized, the Supreme Court

has established that nonmutual offensive collateral estoppel

does not extend to litigation against the United States.

Mendoza, 464 U.S. at 162. The United States differs from

private litigants in that its litigation is geographically broad

and often involves issues of national significance. Id. at 159-

60. Among other concerns expressed by the Court, preclud-

ing the United States from relitigating issues against differ-

ent parties would “thwart the development of important

questions of law by freezing the first final decision rendered

on a particular legal issue” and would “deprive th[e] Court

of the benefit it receives from permitting several courts of

appeals to explore a difficult question before” it grants

certiorari. Id. at 160.

Mr. Harrell submits that Mendoza does not apply in this

case because Congress has placed the Postal Service on the

same footing as a private litigant by authorizing it to “sue

and be sued.” 39 U.S.C. § 401. Mr. Harrell reads too

much into this waiver of immunity: That the Postal Service is

amenable to the judicial process does not “change the fact

that the party being sued is still the federal government.” In

re Young, 869 F.2d 158, 159 (2d Cir. 1989) (per curiam).

Indeed, Congress has provided that the Postal Service “is

16 No. 03-4204

part of the executive branch of government, that its employ-

ees are part of the federal civil service, and that it possesses

certain powers unique to governmental entities, such as the

authority to exercise the power of eminent domain in the

name of the United States.” Baker v. Runyon, 114 F.3d 668,

670-71 (7th Cir. 1997) (citing 39 U.S.C. §§ 201, 1001(b) &

401(9)). The “sue and be sued” provision, if anything,

indicates that “waiver of sovereign immunity is necessary

solely because the Postal Service is a government agency.”

Id. (citing Western Sec. Co. v. Derwinski, 937 F.2d 1276, 1280

(7th Cir. 1991) (stating that the “sue or be sued” clause

“permit[s] the suit to go forward notwithstanding that it is

a suit against a federal agency”)); see also United States Postal

Serv. v. Flamingo Indus. (USA) Ltd., 540 U.S. 736, 744 (2004)

(“While Congress waived the immunity of the Postal Service,

Congress did not strip it of its governmental status.”).

Accordingly, we conclude that the district court did not

abuse its discretion in concluding that the use of collateral

estoppel was not appropriate in this case, and, thus, the

Postal Service may argue that the National Agreement

incorporates the postal handbooks and manuals that relate

to employees’ return to work.

2. Incorporation

The premise underlying the Postal Service’s position in

this case is that the National Agreement incorporates by

reference the regulations in the postal handbooks and

manuals that govern an employee’s return to work after

taking leave for a serious health condition. The Postal Service

relies upon Article 19 of the agreement, which reads:

Those parts of all handbooks, manuals and published

regulations of the Postal Service, that directly relate

No. 03-4204 17

to wages, hours or working conditions, as they apply to

employees covered by this Agreement, shall con-

tain nothing that conflicts with this Agreement, and shall

be continued in effect except that the Employer shall

have the right to make changes that are not inconsistent

with this Agreement and that are fair, reasonable, and

equitable. This includes, but is not limited to, the Postal

Service Manual and the F-21, Timekeeper’s instructions.

R.27, Ex.I, Ex.1 at 123.

Mr. Harrell argues that this paragraph is too vague and

general to incorporate the contents of the postal hand-

books and manuals into the collective bargaining agreement.

He also relies on the declaration of Greg Bell, the director of

industrial relations for the APWU, who attests that the postal

handbooks and manuals are not part of the National Agree-

ment because they were promulgated unilaterally by the

Postal Service, rather than through any collective bargaining

between the Postal Service and the APWU. See R.27, Ex.I at

¶ 10.

Other courts of appeals, by contrast, have concluded in

analogous contexts that the provisions contained in the

postal handbooks and manuals that affect working con-

ditions are incorporated by reference into the National

Agreement. See Woodman v. Runyon, 132 F.3d 1330, 1334

(10th Cir. 1997) (noting that the postal manual governing

injury compensation was part of the National Agreement

because “Article 19 . . . incorporates those parts of all USPS

handbooks, manuals and published regulations which

directly relate to wages, hours, or working conditions”); Kroll

v. United States, 58 F.3d 1087, 1091 (6th Cir. 1995) (concluding

that Postal Service employee suggestion program was

incorporated into the National Agreement through the postal

manual because Article 19 “incorporates by reference all

18 No. 03-4204

parts of postal handbooks, manuals, and regulations that

‘directly relate to wages, hours, or working conditions’ ”).

Indeed, the APWU itself has argued in other litigation that

Article 19 incorporates the postal handbooks and manuals

into the National Agreement. For instance, in United States

Postal Service v. American Postal Workers Union, 922 F.2d 256

(5th Cir. 1991), the Fifth Circuit noted that,

[a]lthough article 19 states that nothing in the hand-

books, manuals and regulations shall conflict with the

Agreement, it does not specifically state that the Agree-

ment incorporates these texts. Thomas A. Neill, Director

of Industrial Relations for the APWU, whose duties

include negotiation of the National Agreement and

administration of the grievance procedure, states in his

“declaration” that “[t]he handbooks and manuals are

applied in labor relations between the APWU and USPS

as part of the National Agreement.” These texts, Neill

adds, are incorporated by reference into the Agreement

and arbitrators routinely interpret them in deciding

grievance arbitration cases. The Postal Service does not

dispute Neill’s sworn declaration.

Id. at 259 n.2.

In light of the fact that both parties to the National Agree-

ment have maintained previously that the postal handbooks

and manual affecting working conditions are incorporated

by reference into that agreement, Mr. Harrell stands in a

weak position to assert otherwise. We agree with our sister

circuits that Article 19 is sufficient to incorporate the postal

handbooks and manuals relating to wages, hours or working

conditions into the National Agreement. Certainly, the postal

handbooks and manuals that govern an employee’s return

to work after an extended absence relate to wages, hours or

working conditions.

No. 03-4204 19

3. Diminishment of FMLA Rights

Mr. Harrell next contends that, even if the postal return-to-

work regulations are part of a valid collective bargain-

ing agreement, the Postal Service was not allowed to impose

any condition on his return that is more stringent than what

is specifically allowed by the FMLA, and, by doing so, the

Postal Service violated rights protected by the FMLA. The

Postal Service takes the opposite view. It maintains that the

FMLA allows for a more stringent return-to-work certifica-

tion if required by state law or if set forth in a CBA. Thus we

arrive at the pivotal issue in this case: Whether the Postal

Service can rely upon return-to-work regulations incorpo-

rated into a valid collective bargaining agreement to impose

requirements on employees that are more burdensome than

what is set forth in the statute. To resolve this issue, we begin

with the language of the statute, specifically 29 U.S.C.

§§ 2614(a)(4) and 2652. If the intent of Congress, as expressed

in the language of the statute, is clear with respect to this

issue, then “that is the end of the matter; for the court, as

well as the agency, must give effect to the unambiguously

expressed intent of Congress.” Chevron, U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984).

However, “if the statute is silent or ambiguous with respect

to the specific issue,” the court must defer to the agency’s an-

swer if it “is based on a permissible construction of the

statute.” Id. at 843. Generally speaking, an agency’s interpre-

tation of a statute that it administers is “permissible” if it is

“reasonable.” Id. at 845.

Section 2614(a)(4) permits employers to impose, as a

condition of returning to work,

a uniformly applied practice or policy that requires each

employee to receive certification from the health care

provider of the employee that the employee is able to

20 No. 03-4204

resume work, except that nothing in this paragraph shall

supersede a valid State or local law or a collec-

tive bargaining agreement that governs the return to

work of such employees.

29 U.S.C. § 2614(a)(4). The legislative history for this section

notes that the last phrase “clarifies that [§ 2614(a)(4)] was not

meant to supersede other valid State or local laws or collec-

tive bargaining agreement that, for reasons such as public

health, might affect the medical certification required for the

return to work of an employee who had been on medical

leave.” S. Rep. 103-3 at 32.

Section 2652, in turn, reads:

(a) More protective

Nothing in this Act or any amendment made by this Act

shall be construed to diminish the obligation of an

employer to comply with any collective bargaining

agreement or any employment benefit program or plan

that provides greater family or medical leave rights

to employees than the rights established under this

Act or any amendment made by this Act.

(b) Less protective

The rights established for employees under this Act

or any amendment made by this Act shall not be dimin-

ished by any collective bargaining agreement or any

employment benefit program or plan.

29 U.S.C. § 2652. The legislative history to this section adds

that “[subsection (a)] specifies that employees must continue

to comply with collective bargaining agreements or employ-

ment benefit plans providing greater benefits than the act.

Conversely, [subsection (b)] makes clear that rights under

the act cannot be taken away to collective bargaining or

employer plans.” S. Rep. 103-3 at 38; see also id. at 47 (ex-

No. 03-4204 21

plaining that under § 2652 nothing in the FMLA “shall

diminish an employer’s obligation under a collective

bargaining agreement or employment benefit plan to

provide greater leave rights nor may the rights provided

under this title be diminished by such agreement or plan”).

As noted above, Mr. Harrell believes that the Postal

Service’s insistence on a detailed return-to-work state-

ment violated the FMLA. He asserts that, although the Postal

Service was allowed to have a uniform fitness certification

policy under 29 U.S.C. § 2614(a)(4), this provision is limited

by the language of 29 U.S.C. § 2652(b) which provides that

“[t]he rights established for employees under this Act or any

amendment made by this Act shall not be diminished by any

collective bargaining agreement or any employment benefit

program or plan.” Therefore, as these provisions apply to his

case, Mr. Harrell submits that, because Dr. Smith cleared him

for work without restrictions, the Postal Service was not

authorized to impose a more stringent certification re-

quirement, even if such a requirement was part of the

governing collective bargaining agreement.

The Postal Service and the Department of Labor urge

a different interpretation of these provisions. They maintain

that § 2614(a)(4), with its deference to “a valid State or local

law or a collective bargaining agreement,” defines the

“right” to return to work as guaranteed by the FMLA. The

Postal Service goes on to explain that,

[b]ecause an employee has no right under the Act to

circumvent a collective bargaining provision governing

his return to work, applying section 2614 to require

additional certification measures does not “diminish”

any “right established for employees under th[e] Act,”

and therefore does not contravene section 2652.

22 No. 03-4204

Rehearing Pet. at 11.

Both parties urge that we need not look beyond the

statutory language to resolve the question at hand— whether

a CBA can impose a more stringent return-to-work require-

ment than a simple certification by the employee’s own

physician. We do not believe this to be the case. Here, § 2614

provides that an employer may have a certification require-

ment, but further provides that “nothing in this paragraph

shall supersede a valid State or local law or a collective

bargaining agreement that governs the return to work of

such employees”; § 2652 states that nothing in the Act “shall

be construed to diminish the obligation of an employer to

comply with any collective bargaining agreement . . . that

provides greater family or medical leave rights to employees

than the rights established under this Act” and further states

that rights provided by the FMLA “shall not be dimin-

ished by any collective bargaining agreement or any employ-

ment benefit program or plan.”

There are two possible ways to reconcile these provisions.

The first is the interpretation urged by Mr. Harrell—that a

CBA can provide greater, but not fewer, rights to employees.

This interpretation, however, renders the last clause of

§ 2614(a)(4) superfluous, a result that we usually try to

avoid. See, e.g., United States v. Alvarenga-Silva, 324 F.3d 884,

887 (7th Cir. 2003) (“Courts should avoid statutory construc-

tions that render another part of the same provision super-

fluous.”). The second possible interpretation—the one urged

by the Postal Service—is to read § 2614(a)(4) as an exception

to the general rule set forth in § 2652. Such a reading is

consonant with general canons of statutory interpretation, see

United States v. Salerno, 108 F.3d 730, 737 (7th Cir. 1997) (de-

scribing the “cannon [sic] of statutory interpretation that a

more specific statutory provision takes precedence over

No. 03-4204 23

a more general provision”); however, Congress’ intent

to limit the operation of § 2652 with respect to return-to-

work provisions could have been made clearer through the

use of a cross-reference to § 2614(a)(4). Given the short-

comings with each interpretation, we are not able to con-

clude that Congress clearly addressed the question at issue

through the statutory language. We therefore may turn to

the interpretive regulations to resolve the issue.

Chevron instructs that we must defer to the reasonable

interpretation of an agency tasked with administering

the statute. Whether an interpretation is reasonable involves

a two-step inquiry. The first step requires that the court

identify the agency’s position on the specific issue. The

second step requires a determination of whether the agency’s

position is a principled one. Chevron, 467 U.S. at 844.

Here, Mr. Harrell maintains that the interpretation of

§ 2614(a)(4) set forth in the Department of Labor’s regulation

is no more than a restatement of the language of the statute

and, therefore, is not worthy of deference. Although such an

argument does find support in recent Supreme Court case

law,3 we find it unpersuasive with respect to the regulation

at issue. It is true that part of the implementing regulation,

29 C.F.R. § 825.310,4 follows closely the language of the

statute; however, the regulation goes beyond the mere

recitation of the statutory language and speaks to the issue

3

See Gonzales v. Oregon, 126 S. Ct. 904, 915 (2006) (rejecting

the Government’s argument that an interpretive rule was worthy

of deference under Auer v. Robbins, 519 U.S. 452 (1997), in part

because “the underlying regulation does little more than restate

the terms of the statute itself”).

4

The relevant sections of 29 C.F.R. § 825.310 are set forth

supra at 13.

24 No. 03-4204

presented in this case. First, the title of the regulation sets

forth the question that the regulation purports to answer:

“Under what circumstances may an employer require that an

employee submit a medical certification that the employee is

able (or unable) to return to work (i.e., a ‘fitness-for-duty’

report)?” 29 C.F.R. § 825.310. Subsection (a) then states the

general proposition that, as a condition of restoring an

employee to his or her position after FMLA leave, “an

employer may have a uniformly-applied policy or practice

that requires all similarly-situated employees . . . who take

leave for such conditions to obtain and present certifica-

tion from the employee’s health care provider that the

employee is able to resume work.” 29 C.F.R. § 825.310(a).

Subsection (b) speaks more directly to the situation pre-

sented here; it states:

(b) If State or local law or the terms of a collective bargaining

agreement govern an employee’s return to work, those

provisions shall be applied. Similarly, requirements under

the Americans with Disabilities Act (ADA) that any

return-to-work physical be job-related and consistent

with business necessity apply. For example, an attorney

could not be required to submit to a medical examina-

tion or inquiry just because her leg had been amputated.

The essential functions of an attorney’s job do not

require use of both legs; therefore such an inquiry would

not be job related. An employer may require a ware-

house laborer, whose back impairment affects the ability

to lift, to be examined by an orthopedist, but may not

require this employee to submit to an HIV test where the

test is not related to either the essential functions of

his/her job or to his/her impairment.

29 C.F.R. § 825.310(b) (emphasis added). Not only does

subsection (b) clearly state that a CBA takes precedence over

No. 03-4204 25

the statutory requirements, the examples that follow illus-

trate that the Department of Labor does not believe that

return-to-work requirements found in a CBA only can

provide employees with greater protections than the statu-

tory language. The last example discussing the warehouse

laborer is particularly telling: A CBA that provided only

greater rights to employees could not require a warehouse

laborer, as a condition of returning to work, to be examined

by an orthopedist; if the employee had obtained a return-to-

work release from his general practitioner, that release,

without more, would suffice under the statutory provisions

of the FMLA. Thus subsection (b) not only provides for

compliance with a CBA, it also indicates that the CBA may

impose more stringent return-to-work requirements on the

employee than those set forth in the statute.5

Having identified the agency’s answer to the question,6 the

5

Subsection (c) then goes on to describe the statutory protections

set forth in the act for returning to work—those protections that

are applied in the event subsection (b) is inapplicable. See 29

C.F.R. § 825.310(c), supra at 13.

6

A Department of Labor Opinion Letter, Opinion Letter FMLA-

113, further elucidates the Department’s position vis-a-vis CBAs

and establishes that the Department’s position has remained

consistent over time. The letter states:

How FMLA’s certification provisions interact with the terms

of a CBA that govern an employee’s reinstatement is specifi-

cally discussed in § 825.310(b) of the regulations. If the terms

of the CBA, for instance, require a fitness-for-duty examina-

tion in addition to a return-to-work certification, then those

terms apply with certain conditions. The FMLA, which has

adopted the guidelines of the Americans with Disabilities

Act (ADA), requires that any fitness-for-duty examination as

(continued...)

26 No. 03-4204

last inquiry is whether this interpretation is a reasonable one

and, as a result, is entitled to deference from the courts. We

believe that this final requirement also is met. First, there is

support in the legislative history for this interpretation. As

noted above, the portion of the Senate report that discusses

§ 2614(a)(4) states that the language of § 2614(a)(4)

clarifies that section 104(a)(4) was not meant to super-

sede other valid State or local laws or collective bargain-

ing agreement, that, for reasons such as public health,

might affect the medical certification required for the

return to work of an employee who had been on medical

leave. For example, section 104(a)(4) does not supersede

a State law that requires specific medical certification

before the return to work of employees who have had a

particular illness and who have direct contact with the

public. . . .

6

(...continued)

a condition for returning to work must be job-related and

consistent with business necessity.

. . . If the above-referenced return-to-work medical certifi-

cation and fitness-for-duty examinations provisions in the

handbook and manual are a part of the CBA as you

have asked that we assume, then these provisions would

apply instead of the FMLA’s return-to-work certification

requirements. . . .

Opinion Letter, FMLA-113 (September 11, 2000). Thus, the

Department of Labor consistently has taken the position that

§ 2614(a)(4) means that return-to-work provisions set forth in

a CBA, whether providing greater or fewer protections to

employees than are explicitly set forth in the FMLA, take

precedence over the statutory protections provided to employees

in the Act.

No. 03-4204 27

S. Rep. 103-3, at 31 (1993). Additionally, the Department’s

interpretation avoids a construction of the statute that would

render the last clause of § 2614(a)(4) superfluous. If that

clause were interpreted to give CBA’s precedence over the

statutory protections only if those protections were greater

than that provided in the Act, then § 2614(a)(4) and § 2652

would provide the same guarantees. Finally, the Depart-

ment’s interpretation of § 2614 gives effect to the rule of

statutory construction that specific provisions take prece-

dence over more general provisions. Section 2652 speaks in

broad terms to the protections provided to employees by the

Act; § 2614(a)(4), however, addresses a very specific

issue—return-to-work certifications. Thus, with respect to

the specific right to which § 2614(a)(4) is

addressed—returning to work upon the certification of a

physician—a CBA, state statute or local ordinance, may take

precedence over the statutory protections provided by

other places in the Act.7

Because the Department of Labor’s regulations reasonably

interpret § 2614(a)(4) to allow a CBA to impose stricter

return-to-work restrictions than those otherwise incorpo-

rated into the FMLA, we defer to that interpretation and

hold that the Postal Service did not violate the FMLA when

it required Mr. Harrell to comply with the return-to-work

provisions set forth in the handbooks and manuals incorpo-

7

Mr. Harrell cites two district court opinions, Marrero v. Camden

County Board of Social Services, 164 F. Supp. 2d 455 (D.N.J. 2001),

and Routes v. Henderson, 58 F. Supp. 2d 959 (S.D. Ind. 1999), that

reach a different conclusion. For the reasons set forth in this

section, we respectfully disagree with those courts.

28 No. 03-4204

rated into the National Agreement.8

C. Contacting Employee’s Health Care Provider

Despite Mr. Harrell’s express refusal to give his con-

sent, the postal nurse contacted his personal physician

and requested additional medical information. The

district court determined that this contact violated the

FMLA, as provided in the statute’s accompanying regula-

tions:

If an employee submits a complete certification signed

by the health care provider, the employer may not

request additional information from the employer’s

health care provider. However, a health care provider

8

Mr. Harrell also argues that the Postal Service violated its own

regulations when it required that he undergo an examination by

a designated physician. He claims that the return-to-work

requirements do not specifically reference the portion of the

employee manual dedicated to FMLA leave, and, therefore, those

requirements are not meant to apply to the FMLA section. We

find this argument unpersuasive. Nothing in the language of the

statute or regulation suggests that a CBA’s return-to-work

provisions must specifically reference the FMLA or cross-

reference the section of the CBA dedicated to implementing the

FMLA in order to be effective.

Mr. Harrell also points to statements by Postal Service adminis-

trators, regarding the requirements for returning to work after

FMLA leave, made several years prior to Mr. Harrell’s illness and

attempted return-to-work. However, Mr. Harrell failed to

establish either that these statements represented the current

administrative practice under the existing CBA or Employee

Labor Relations Manual, or that he relied upon these statements

in refusing to undergo an examination by the Postal Service

physician.

No. 03-4204 29

representing the employer may contact the em-

ployee’s health care provider, with the employee’s

permission, for purposes of clarification and authenticity

of the medical certification.

29 C.F.R. § 825.307(a).

The rights established by the FMLA can be enforced

through civil actions. Section 2615 makes it “unlawful for

any employer to interfere with, restrain, or deny the exercise

of or the attempt to exercise, any right provided.” 29 U.S.C.

§ 2615(a)(1). An employer who violates this section shall be

“liable to any eligible employee affected” for compensatory

damages and “for such equitable relief as may be appropri-

ate, including employment, reinstatement, and promotion.”

Id. § 2617(a)(1).9 The district court ruled that Mr.Harrell was

9

The full text of § 2617(a)(1) reads:

(a) Civil action by employees

(1) Liability

Any employer who violates section 2615 of this title

shall be liable to any eligible employee affected—

(A) for damages equal to—

(i) the amount of—

(I) any wages, salary, employment benefits,

or other compensation denied or lost to

such employee by reason of the violation;

or

(II) in a case in which wages, salary, em-

ployment benefits, or other compensation

have not been denied or lost to the em-

ployee, any actual monetary losses sus-

tained by the employee as a direct result

(continued...)

30 No. 03-4204

not entitled to any damages on this claim because the

violation caused him no injury: Dr. Smith’s office refused to

release any medical information to the postal nurse absent

Mr. Harrell’s consent. This conclusion is correct. Our review

of the record also found no indication that any information

obtained from the postal nurse’s contact with Dr. Smith’s

office in any way compromised Mr. Harrell’s return-to-work

status or was a factor in the Postal Service’s decision to

terminate his employment. Section 2617 affords

(...continued)

of the violation, such as the cost of provid-

ing care, up to a sum equal to 12 weeks of

wages or salary for the employee;

(ii) the interest on the amount described in

clause (i) calculated at the prevailing rate; and

(iii) an additional amount as liquidated dam-

ages equal to the sum of the amount described

in clause (i) and the interest described in

clause (ii), except that if an employer who

has violated section 2615 of this title proves to

the satisfaction of the court that the act or

omission which violated section 2615 of this

title was in good faith and that the employer

had reasonable grounds for believing that the

act or omission was not a violation of section

2615 of this title, such court may, in the discre-

tion of the court, reduce the amount of the

liability to the amount and interest determined

under clauses (i) and (ii), respectively; and

(B) for such equitable relief as may be appropri-

ate, including employment, reinstatement, and

promotion.

29 U.S.C. § 2617(a)(1).

No. 03-4204 31

no relief unless the employee has been prejudiced by the

violation: The employer is liable only for compensation

and benefits lost “by reason of the violation,”

§ 2617(a)(1)(A)(i)(I), for other monetary losses sustained

“as a direct result of the violation,” § 2617(a)(1) (A)(i)(II),

and for “appropriate” equitable relief, including employ-

ment, reinstatement, and promotion, § 2617(a)(1)(B). The

remedy is tailored to the harm suffered.

Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 88-90

(2002).10 Because Mr. Harrell was not harmed by the unau-

thorized contact with his physician, § 2617 provides him no

remedy, including equitable relief, and the district court

correctly granted the Postal Service summary judgment on

this claim.

D. Notice Requirements

Finally, Mr. Harrell alleges that the Postal Service inter-

fered with his FMLA rights by failing to provide him with

10

See also Cianci v. Pettibone Corp., 152 F.3d 723, 728-29 (7th Cir.

1998) (holding that plaintiff had no claim under FMLA be-

cause she had suffered no diminution in income and incurred

no costs as a result of alleged violation); see also Cavin v. Honda of

American Mfg., Inc., 346 F.3d 713, 726 (6th Cir. 2003) (“Even when

an employee proves that his employer violated § 2615, ‘§ 2617

provides no relief unless the employee has been prejudiced by the

violation’ ” (quoting Ragsdale v. Wolverine World Wide, Inc., 535

U.S. 81, 88-90 (2002)); Sarno v. Douglas Elliman-Gibbons & Ives, Inc.,

183 F.3d 155, 162 (2d Cir. 1999) (concluding that the FMLA does

not give “an employee a right to sue the employer for failing to

give notice of the terms of the Act where the lack of notice had no

effect on the employee’s exercise of or attempt to exercise any

substantive right conferred by the Act”).

32 No. 03-4204

timely and sufficient notice of the requirements for returning

to work and of the consequences for failing to comply with

those requirements. The Act’s implementing regulations

require that an employer must provide notice “detailing the

specific expectations and obligations of the employee and

explaining any consequences of a failure to meet these

obligations,” 29 C.F.R. § 825.301(b), “within a reasonable

time after notice of the need for leave is given by the

employee—within one or two business days if feasible,” id.

§ 825.301(c). If the employer fails to provide adequate and

timely notice, it “may not take action against an employee

for failure to comply with any provision required to be set

forth in the notice.” Id. § 825.301(f).

The district court concluded that Mr. Harrell’s claim

was “belied by his deposition testimony in which he admits

that he was aware of the USPS regulations concerning

returning to work following an absence of more than 21

days.” R.41 at 11. The court found, moreover, that, upon

realizing that Mr. Harrell’s leave would exceed twenty-one

days, Cussins mailed to him a letter outlining in detail the

return-to-work certification requirements. In addition, Mr.

Harrell discussed his alternatives with Cussins when he first

had attempted to return to work.

Mr. Harrell contends that the Postal Service was re-

quired to inform him of his return-to-work obligations at the

time he requested FMLA leave, not at the time he attempted

to return to work. On February 2, and again on February 23,

2000, Mr. Harrell notified his supervisors that he might be

absent for up to four weeks. The Postal Service initially

advised him of its return-to-work requirements by letter

dated February 23, 2000. Although, according to Mr. Harrell,

he did not receive this letter until March 7 (the day after he

attempted to return to work), nothing in the record suggests

No. 03-4204 33

that the Postal Service delayed in attempting to notify Mr.

Harrell of his obligations within a reasonable time after he

advised the Postal Service that he needed to take an ex-

tended absence.

Furthermore, even assuming that the Postal Service

failed to provide adequate notice, Mr. Harrell was not

harmed by this violation. On March 6, 2000, when Mr.

Harrell attempted to return to work, he was told by Cussins

what he needed to do in order to be cleared for work. By

letters dated March 9 and March 15, 2000, the Postal Service

reiterated to Mr. Harrell his return-to-work obligations and

told him that he would be subject to removal if he failed to

comply with those conditions. Then, when Mr. Harrell

responded by letter on March 21, the Postal Service sent him

another letter requesting an opportunity to review medical

documentation from his health care provider and scheduling

an appointment for him to be examined by a USPS-contract

physician. Mr. Harrell again refused this request. The Postal

Service did not terminate his employment until April 27,

2000.

This chronology demonstrates that Mr. Harrell had

ample notice of the Postal Service’s expectations and of

his obligations related to returning to work. We conclude

that, on this record, the district court’s grant of summary

judgment in favor of the Postal Service was appropriate

on this claim.

Conclusion

Accordingly, for the foregoing reasons, we affirm the

judgment of the district court.

AFFIRMED

34 No. 03-4204

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—5-4-06