445 F.3d 913 (7th Cir. 2006), 03-4204, Harrell v. United States Postal Service

Docket Nº:03-4204.
Citation:445 F.3d 913
Party Name:Rodney HARRELL, Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE, Defendant-Appellee.
Case Date:May 04, 2006
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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445 F.3d 913 (7th Cir. 2006)

Rodney HARRELL, Plaintiff-Appellant,



No. 03-4204.

United States Court of Appeals, Seventh Circuit.

May 4, 2006

Argued Sept. 24, 2004.

Reargued Dec. 9, 2005.

Decided July 19, 2005.

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[Copyrighted Material Omitted]

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Peter J. Leff (Argued), O'Donnell, Schwartz & Anderson, Washington, DC, for Plaintiff-Appellant.

Stephan J. Boardman (Argued), United States Postal Service, Washington, DC, for Defendant-Appellee.

Joanna Hull (Argued), Department of Labor, Office of the Solicitor, Washington, DC, Amicus Curiae.

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 appealed. This panel initially affirmed in part and reversed in part the judgment of the district court. On the petition of the Postal Service, with the United States Department of Labor ("Department") as amicus curiae, the panel granted rehearing. For the reasons set forth in the following opinion, we affirm the judgment of the district court in its entirety.



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 concentrating. 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 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.

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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 examination 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 February 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 want her to contact his physician. Two weeks later, nonetheless, 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 medical certification. This certification must include evidence 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, 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 absent 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 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.

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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 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.

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.


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 collective 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).

Mr. Harrell contended that the Postal Service was precluded from arguing that the National Agreement incorporated 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, 104 S.Ct. 568, 78 L.Ed.2d 379 (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 handbooks and manuals are part of the National Agreement. It further determined that, because the postal regulations had the force of a valid collective bargaining...

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