641 F.3d 1174
9th Cir.2011Background
- Lewis, director of a child development center at Elmendorf AFB, was not selected for a new director position in 2003 and alleges racial discrimination against supervisors.
- Her relationship with supervisors deteriorated after the discrimination complaint.
- In 2006, Lewis sought 120 days FMLA leave and submitted limited documentation (WH-380, two doctors’ notes, and a psychiatrist letter).
- Supervisor DeShasier found the submitted materials insufficient to support FMLA leave and Lewis refused to provide additional information, converting her to AWOL prior to removal in 2007.
- An ALJ for MSPB found Lewis AWOL for the period and that the agency acted within discretion in terminating her; the MSPB decision became final; district court granted summary judgment on unlawful removal and affirmed MSPB decision; Lewis appeals, raising Title VII and unlawful removal claims.
- The Ninth Circuit reviews for arbitrary, capricious, or unsupported by substantial evidence and upholds MSPB decisions if supported by substantial evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the MSPB erred in finding the FMLA medical certification deficient | Lewis argues WH-380 suffices under Ellshoff | Agency and MSPB required minimum medical facts under 5 U.S.C. §6383(b) | Yes; MSPB supported by substantial evidence that certification lacked required medical facts |
| Whether the agency could request more FMLA documentation after an initial submission | Lewis argues no need for additional documentation beyond FMLA form | Second opinions only if employer doubts validity; here contact noted sufficiency was in doubt | Yes; second opinions not required when only sufficiency questioned; MSPB proper to require more documentation |
| Whether Lewis was timely provided a reasonable period to supply certification | Argues the period was inadequate | Twenty-two days satisfied regulatory 'reasonable period under the circumstances' | Yes; 22 days within the regulatory standard |
| Whether documents from workers' compensation support counted toward FMLA certification | Documents existed but were not provided to the supervisor due to confidentiality | Lewis refused to provide the documentation beyond the WH-380 | Yes; substantial evidence supported finding that Lewis refused to provide adequate information |
Key Cases Cited
- Ellshoff v. Dep't of Interior, 76 M.S.P.R. 54 (MSPB 1997) (doctor's report can be sufficient if it contains minimum statutory requirements)
- Novak v. MetroHealth Med. Ctr., 503 F.3d 572 (6th Cir. 2007) (insufficient certification where lacks appropriate medical facts)
- Dias v. Dep’t of Veterans Affairs, 102 M.S.P.R. 53 (MSPB 2006) (second opinions only when employer doubts validity)
- Burge v. Dep’t of Air Force, 82 M.S.P.R. 75 (MSPB 1999) (harm not shown when employee fails to provide mandated information)