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APWU Responds To USPS FMLA Return-To-Duty Procedures

posted 9/17/05

"Following this appeals court decision, the Postal Service issued a memorandum on procedures for returning craft employees to work following FMLA-protected absences. The July 26th memo states in part that “the Postal Service will comply with the Harrell decision in those facilities located within the three states subject to the court’s jurisdiction; Indiana, Illinois, and Wisconsin.” The APWU is pursuing actions in preparation for a challenge if the Postal Service refuses to apply the substance of the appeals court ruling to return to duty procedures for FMLA-covered conditions on a nationwide basis."

In response to the Postal Service’s July 26th memorandum on procedures for returning craft employees to work following FMLA protected absences, the APWU has requested information from management to determine whether a disagreement exists between the parties regarding the regulations for returning bargaining unit employees to work following absences covered by the Family and Medical Leave Act.

The union’s letter stresses that the court’s decision in Harrell v. USPS is final and there are no contrary or competing decisions in other circuits, and therefore, “[t]he APWU had anticipated that the Postal Service would discontinue requiring anything more than a simple statement provided by the employee’s own health care provider of an employee’s ability to return to work when an employee wishes to return to duty following FMLA leave.” It notes, however, that the memorandum “suggest[s] ... that in some parts of the country management may still require additional medical documentation (i.e., more than a simple statement from the employee’s health care provider of their ability to return to work) whenever ‘management has a reasonable belief, based upon reliable and objective information, that the employee may be unable to perform the essential functions of his/her position or may pose a direct threat to health or safety.’” The request states that “the Postal Service has an obligation to administer its leave and related policies on an equitable basis for all employees,” and seeks specific information regarding the Postal Service’s position regarding regulations for bargaining unit employees when returning to work from absences pursuant to the FMLA.
APWU’s correspondence with the Postal Service [pdf]

APWU Wins Landmark FMLA Ruling

APWU News Bulletin #11-05, July 20, 2005 | PDF

A federal appeals court has ruled that the Postal Service’s return-to-work requirements for absences of more than 21 days are in conflict with the Family and Medical Leave Act.

The unanimous ruling by the U.S. Court of Appeals for the Seventh Circuit invalidates key USPS regulations that require employees returning from approved FMLA leave of more than three weeks to submit detailed medical documentation — including diagnosis, prognosis, treatment and medication — and/or to submit to a medical examination by a physician selected by the Postal Service before it will allow them to return to work.

“We have fought long and hard to protect our members’ rights under the Family and Medical Leave Act,” said APWU President William Burrus. “This is a very sweet victory.”

The court ruled that the Family and Medical Leave Act requires employers covered by the law to return employees to work after their approved FMLA leave upon a basic showing that they are able to perform their duties. This is done by presenting a statement to that effect from the employee’s own physician, the court concluded.

“The provisions of the FMLA simply require an employer to rely on the evaluation of the employee’s own health-care provider,” the court said. “[T]he return-to-work certification need not contain specific information regarding diagnosis, prognosis, treatment and medication.”

The court also ruled that the Postal Service cannot enforce regulations that impose greater burdens on employees when they return to work than provided under the FMLA. The USPS provisions “impose a greater burden on the employee and therefore cannot be employed.”

“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.”

APWU Industrial Relations Director Greg Bell hailed the decision. “This ruling will enhance the rights of all workers covered by the Family and Medical Leave Act,” he said, noting that the ruling applies to all employers, not just the Postal Service.

The court ruling was based on the case of Rodney Harrell, a Decatur (IL) Local APWU member. After selecting Harrell’s case to pursue in court, the union paid the expenses associated with the litigation, with its law firm representing the complainant.

The unusual arrangements were made in late 2002 when Burrus invited APWU members whose FMLA rights had been violated to file suit – at the national union’s expense.

The July 19, 2005, decision by the appeals court overturns a ruling by the U.S. District Court for the Central District of Illinois on Nov. 10, 2003; there are no contrary or competing decisions in the other circuits.

The appeals court ruling notes that the USPS can require fitness-for-duty exams of employees after they return from FMLA-approved leave, provided such exams are “job-related and consistent with business necessity in accordance with the Americans with Disabilities Act.”

For more information about the decision, see the next issue of The American Postal Worker, or visit the Industrial Relations pages at www.apwu.org [PDF].

USPS MEMO: FMLA Court Decision Applies to only 3 States

On July 19, 2005 the case of Harrell v. U.S. Postal Service, the United States Court of Appeals for the Seventh Circuit ruled that the Postal Service's return to work provisions in ELM 865 cannot be applied to bargaining unit employees returning from FMLA-protected absences. The Postal Service will comply with the Harrell decision in those facilities located within the three states subject to the court's jurisdiction: Indiana, Illinois, and Wisconsin. Effective immediately, in facilities located In these three states, management may not request any of the information contained in ELM 865.1 before a craft employee returns to work from a FMLA-protected absence. In all facilities not located within Illinois, Indiana, or Wisconsin, continue to apply ELM 865.1 as written. (source: APWU) (8/13/05)


Labor Law Brief : Return to work rule can't be stricter than FMLA
Rodney Harrell, an employee of the USPS and member of a collective bargaining unit, fell ill, left work, and submitted a certificate from his doctor. Subsequently, with a doctor's note certifying as to his fitness, he tried to return but was told he had first to submit more documents from his physician or be examined by the postal service contract physician. He refused, and was fired. Harrell sued, alleging that the postal service had violated the FMLA, 29 U.S.C. 2601, et seq. An Illinois federal court granted summary judgment to the postal service. The 7th Circuit reversed in part and affirmed in part, holding that the postal service may not rely on its own return-to-work regulations to impose requirements on employees that are more burdensome than the return-to-work provisions of the FMLA." (8/1/05)


More Family Medical Leave Act Court Cases and issues


Supreme Court Lets Stand Court Ruling Of No FMLA Liability for Postal Supervisors

posted August 6, 2004




1. Whether the Family Medical Leave Act of 1993, 29 U.S.C. 2601 et seq., imposes individual liability on supervisory employees of a public agency.

2. Whether dismissal of a plaintiff's lawsuit for failure to consult with an agency EEO counselor within 45 days of the alleged discrimination is "on the merits" for claim preclusion purposes.

Summary: Joey L. Mitchell, an employee of the United States Postal Service, brought this action against the Postal Service, the Postmaster General, and three individual postal employees. Mitchell claimed that the supervisors' refusal to give him a mail carrier position in which he could use a waist harness violated the Family and Medical Leave Act (FMLA) The district court dismissed the action, and the court of appeals affirmed.

Supreme Court Declines Review of APPEAL

In the face of a split among the federal courts, the U.S. Supreme Court on June 28 declined to review the U.S. Court of Appeals for the Sixth Circuit's decision that public sector workers cannot sue their supervisors as individuals for violations of the Family and Medical Leave Act (Mitchell v. Chapman, U.S., cert. denied, 6/28/04).

Mail Carrier Joey L. Mitchell had urged the justices to review the

Sixth Circuit's ruling in favor of three of his Postal Supervisors on his claims they violated his FMLA rights. The Sixth Circuit concluded that an analysis of the text of the FMLA reveals that while private-sector supervisors can be sued under the act, a supervisor in a public agency cannot be sued as an individual.

In so holding, the Sixth Circuit parted company with the U.S. Court of Appeals for the Eighth Circuit, which has held that the FMLA imposes individual liability on supervisory employees of public agencies

Neck Pain Resulted in Transfer

Mitchell, who worked as a mail carrier at the Paris, Ky., post office, had a history of chronic neck pain. In February 1997, he submitted a formal request for a transfer to a clerk position. No action was taken immediately, the court said. However, he was transferred to a temporary clerk position in May, after he attributed an unexcused absence to a re-injury of his neck. He was told that he could be returned to the letter carrier position after he received a medical fitness-for-duty examination.

On May 15, Mitchell provided a letter from his doctor indicating he was medically cleared to perform his job as a letter carrier. The postmaster of the facility refused to return him to his position, however. After a few more medical evaluations concluding that Mitchell could perform the letter carrier position as long as he did not use a satchel to carry the mail, the employer still refused to transfer him back to his old job.

In the meantime, USPS also denied grievances filed on behalf of  Mitchell by NALC alleging violations of the FMLA and the collective bargaining agreement and seeking back pay, annual and sick leave he was denied because of the transfer, and reinstatement to letter carrier duties.

Mitchell sued in May 2000, but a district court rejected his FMLA claim against three individual supervisors, finding they were not subject to liability under the act.

Appeals Court Looks to Text of FMLA

The Sixth Circuit affirmed, analyzing the text of the act to reach its conclusion. The Sixth Circuit concluded that the law's "text and structure demonstrates that the individual liability provision and public agency provision are separate and distinct." Commingling the provisions would render "portions of the statutes superfluous and result in several oddities," it reasoned.

The court said that its interpretation of the law was consistent with Department of Labor regulations interpreting the FMLA.

In rejecting the position staked out by the Eighth Circuit, "the Court of Appeals for the Sixth Circuit disavowed the prevailing view throughout the country that federal supervisors, like all other supervisors, are individually liable for violations of the FMLA," Mitchell said in his brief to the court.

In its brief opposing Supreme Court review, the federal government said that other than the Sixth Circuit, only two other federal appeals courts have considered this issue: the Eighth Circuit in the Darby case, and the Eleventh Circuit, in a case concluding that the FMLA does not impose individual liability on public sector supervisors Wascura v. Carver, 169 F.3d 683, 5 WH Cases 2d 265 (1999)). The USDOJ also noted:


"Both have given only limited consideration to the issue, and neither has addressed the textual points made by the court below,"

"The court held that claim preclusion barred the claims against the Postal Service and the postal officials in their official capacities.  The court reasoned that claim preclusion applies when a dismissal is "on the merits" and that a dismissal for failure to consult within the 45-day period, like a dismissal on statute of limitations grounds, is a judgment "on the merits."

"The court next held that petitioner's individual capacity claims failed as a matter of law because the FMLA does not authorize individual capacity suits against supervisory employees of public agencies.  The court noted that the FMLA creates a private right of action entitling "eligible employees" to seek monetary and injunctive relief "against any employer (including a public agency),"


Review at this point would be premature, the government argued, because "future opinions are likely to take into account the extensive textual analysis of the court below in a way that helps to promote a more well-developed understanding of the issue."

Supervisors Liable Under FMLA

In Carter v. United States Postal Service- the federal 6th Circuit Court of Appeals of the Western District of Kentucky rendered an opinion on an issue that has been splitting the courts. It held that the Family and Medical Leave Act (FMLA) allows government employees to bring claims against individual supervisors for violations of the FMLA. In Carter, a postal worker alleged that he was placed on unpaid disability leave and disciplined in violation of the FMLA after receiving medical treatment for a knee problem. The postal worker sued the Postal Service as well as the Postmaster General and his immediate supervisor individually. In reaching its decision, the court noted that the majority of courts have held that individual government supervisors fall within the definition of an "employer" under the FMLA, and thus may be sued individually. The court held that the plain language of the FMLA and common logic led to the conclusion that the term "employer" included public agencies as well as individuals in public agencies.

In Darby v. Bratch, 287 F.3d 673 (8th Cir. 2002).the federal 8th Circuit Court of Appeals ruled on an employee’s claim against her supervisor for violating her rights under the federal Family and Medical Leave Act (FMLA). Susan Darby returned to work following FMLA-protected leave. One of her supervisors told her she would not be recommended for promotion, and another recommended termination for taking excessive unpaid leave. Darby subsequently resigned her employment. When she tried reapplying, Darby was told she could not be rehired because a supervisor’s report of excessive unpaid leave was still pending. Darby sued her employer and supervisors for retaliation because she exercised rights granted by the FMLA. The court ruled that Darby could pursue her claim against the individual supervisors.

In Cantley vs. Simmons a decision by the U.S. District Court for the Western District of Kentucky, a postal employee can sue a supervisor under the Family and Medical Leave Act. The postal worker, Charles E. Carter, maintained he was disciplined and placed on unpaid leave following medical treatment of a knee injury. Other courts have disagreed over whether public employee supervisors can be sued under the law. The issue has hinged on whether those in public agencies can be defined as "employers" under the FMLA. Some courts have held that "employer" does not include individual government employees. However, the Kentucky court found that an "employer" could be someone working for a public agency.The Postmaster General William J. Henderson and Carter's supervisor, Bryan K. Smith, the defendants, had sought to dismiss the case. The FMLA covers public agencies as being "engaged in commerce or in an industry or activity affecting commerce." The district court held that "employer" refers to individuals and public agencies, as well as individuals employed in them.

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