Opinion
IP 00-0712-C-Y/S.
March 28, 2005
FINDINGS OF FACT AND CONCLUSIONS OF LAW FOLLOWING BENCH TRIAL
This Entry is a matter of public record and may be made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
The court, having heard the evidence, reviewed the exhibits and the applicable law, now issues its decision on the Plaintiff's claims under the Family Medical Leave Act ("FMLA"), pursuant to Federal Rule of Civil Procedure 52(a).
Any finding of fact which is more properly considered a conclusion of law shall be considered as such, and vice versa.
I. FINDINGS OF FACT
Dennis Poteet was a full-time mail handler with the United States Postal Service ("Postal Service") at Indianapolis, Indiana. As a full time mail handler, he was subject to the terms of the Agreement between the Postal Service and the National Postal Mail Handlers Union (the "Union"), a Division of the Laborers' International Union of North America, AFL-CIO, 1994-1998 Handbook EL-903 (the "CBA") and the incorporated provisions of the Employee Labor Relation Manual ("ELM").
Article 10, Section 2 Leave Regulations of the CBA incorporates the ELM for attendance purposes into the CBA. Specifically, Section 10.2 of the CBA provides:
Section 10.2 Leave Regulations
The leave regulations in Subchapter 510 of the Employee and Labor Relations Manual, insofar as such regulations establish wages, hours, and working conditions of employees covered by this Agreement, shall remain in effect for the life of this Agreement.
(Ex. 60.)
On or about April 9, 1997, Poteet, at the urging of the Union and Postal Service management, sought assistance from Dr. Joseph DeStefano due to personal problems, anxiety and depression which were causing him problems on the job. Dr. DeStefano recommended that Poteet cut back his work hours and seek counseling and prescribed him some medication. Dr. DeStefano provided Poteet with a letter dated April 9, 1997 (Ex. 14), and completed a Certification of Health Care Provider, Form WH-380 ("April 1997 WH-380"), indicating that Poteet's condition qualified as a serious health condition under the FMLA under category (2), "Absence Plus Treatment." (Ex. 13.) This WH-380 states in relevant part:
The Defendant's objection on relevancy grounds to Plaintiff's Exhibits identified in the Defendant's filing of January 15, 2004, is OVERRULED. The exhibits to which the objection is made and which were admitted into evidence are relevant to the issue of whether the Plaintiff has a serious health condition under the FMLA.
4. Describe the medical facts which support your certification, [i]ncluding a brief statement of how the medical facts meet the criteria of one of these categories:
Ongoing difficulty with custody of children concern about daughters' well being. Anxiety frustration because of concern about welfare of daughters.
5a. State the approximate date the condition commenced and the probable duration of the condition (and also the probable duration of the present incapacity if different):
March '97 12 mos. (Court date continues to be pushed back. . . .)
The remainder of the writing in response to this question is illegible.
. . .
6a. If additional treatments will be required for the condition, provide an estimate of the probable number of such treatments:
Pt needs to return to individual RX every 2 wks to deal with custody crisis concern for children.
6b. If any of the these treatments will be provided by another provider of health services (e.g., physical therapist), please state the nature of the treatments.
Individual RX psychotropic medication.
(Ex. 13.) The WH-380 asks if leave is required for the employee's absence because of the employee's own condition, whether the employee is unable to perform work of any kind and any of the essential functions of the employee's job. Dr. DeStefano did not respond to either of these questions. Instead, he responded to the inquiry, "If neither a. nor b. applies [the questions regarding ability to work], is it necessary for the employee to be absent from work for treatment?" ( Id.) Dr. DeStefano wrote that Poteet "will need follow-up appts." ( Id.) Thus, Dr. DeStefano did not opine on the WH-380 either that medical leave was required for Poteet because of his condition or that his condition made him incapable of performing his work. Instead, the doctor indicated that Poteet needed to be absent from work for treatments for his condition.
Poteet attended a last chance agreement meeting on April 18, 1997, with his Union steward and Kaila Singleton, a Postal Service Labor Relations Specialist. Poteet claims that he took Dr. DeStefano's April 9, 1997 letter and the April 1997 WH-380 to the meeting and presented them to Singleton. (Tr. at 11.) However, Singleton testified that Poteet did not present a completed WH-380 or any other medical documentation to her at the meeting. (Tr. at 284.) Poteet also claims that after the meeting, he gave the WH-380 to the nurse on duty at the Postal Service's Health Unit, though he could not identify the nurse by name. According to Poteet, the nurse took the form and told him she would put it in his file. The court finds Poteet's testimony on these matters incredible as discussed below.
Curiously, the address provided for Dr. DeStefano on the April 1997 WH-380 is not the same as any of the addresses on the letterhead used by Dr. DeStefano for his April 9, 1997 letter, even though, according to Poteet, these two documents were provided to him at the same time. (Tr. at 10.) In fact, the address written on the April 1997 WH-380 is the address used by Dr. Wernert, but Poteet did not see Dr. Wernert until January 30, 1998, after Dr. DeStefano had already left the practice. All of this suggests that at least the address on the April 1997 WH-380 was filled in by someone in January 1998, not at the time that Dr. DeStefano completed the form.
Poteet took approved FMLA leave for absences on May 22 and 23, 1997, in July 1997, from August 4 to 24, 1997, and in October 1997. These absences were covered by two WH-380 Certificates, the first dated June 16, 1997, and the other, August 24, 1997. (Exs. 19 29.) The June 1997 WH-380 was provided by Dr. DeStefano and indicated Poteet's condition was a serious health condition under category (2), began in March 1997 and had a probable duration of "3-6 months." (Ex. 19.) The 8/24/97 WH-380 was provided by Poteet's counselor, Jeff Freemas, and indicated that Poteet's condition was a serious health condition, commenced in March 1997, and had a probable duration of "3 months further from today's date." (Ex. 29.) Neither of these WH-380s indicates that Poteet's condition itself required him to be absent from work or made him unable to perform his work. Rather, Dr. DeStefano's and Freemas' responses to the questions on the form indicate that medical leave was not required because of Poteet's condition, but because he needed to be absent from work for treatment, specifically, follow-up appointments. (Exs. 19, 29.)
Poteet returned to work on August 25, 1997, after having been off on FMLA leave. ( See Ex. 48b.) He provided his supervisor with a return to work statement from Freemas which stated: "Dennis is off work from Aug 4th to Aug 24th due to stress from personal problems return to work on Aug 25th." (Ex. 28.) The document bears a Postal Service Health Unit stamp dated August 26, 1997, indicating the date on which the document was received by the Health Unit.
Within a few days of returning to work, Poteet was told by a supervisor that he needed to go to the operations office and sign for a new Form WH-380 because his current one had expired. Poteet did as requested and dropped off the Form WH-380 with his healthcare provider. He testified that when he went to the operations office he was told to date the form to show when he received it. Poteet dated the form "8/24/97." He testified he could not explain why he wrote that date on the form and that he was still off on sick leave on that date. He also testified that August 24 was not the day he saw his health care provider. Poteet obtained the completed WH-380 from his healthcare provider on September 10 or 11 and turned it into the Health Unit. The 8/24/97 WH-380 bears the Health Unit's stamp as received on September 11, 1997. This date stamp and Poteet's handwritten "8/24/97" are the only dates on the completed form. (Ex. 29.) The record does not disclose the date on which Freemas completed the WH-380; thus, the meaning of "today's date" written by Freemas is ambiguous. "Today's date" could mean any date from August 24, 1997, through September 11, 1997.
The court finds that Poteet did not submit the April 1997 WH-380 to the Postal Service. The Postal Service's Health Unit records contain the WH-380s dated June 16, 1997, and 8/24/97 submitted by Poteet. These WH-380s bear the Health Unit stamp indicating the date the certifications were received by the Health Unit. In contrast, the April 1997 WH-380 does not bear any date stamp or other indication that it was received by the Postal Service and the Health Unit records do not contain a copy of this WH-380. Furthermore, Poteet had a copy of the April 1997 WH-380, which he kept in his cooler, but he did not keep copies of either of the other two WH-380s. Having considered the testimony, it is more likely than not that Poteet never submitted the April 1997 WH-380 to the Postal Service until he attempted to submit it to Attendance Control Supervisor Lynette Price in January 1998. This explains why he had a copy of that WH-380s, but not the others. It also explains why the document was not in the Health Unit file. Furthermore, it explains why Poteet was requested in June 1997 to get "another" WH-380 filled out and on file — he did not have any WH-380 on file at that time. Moreover, the April 1997 WH-380 indicated a probable duration of Poteet's condition of 12 months from March 1997. In addition, the June 1997 WH-380 was received by the Health Unit on June 16. Poteet's first absences for which he requested FMLA leave in 1997 were on May 22 and 23. It is logical to conclude that Poteet first requested FMLA leave for the May 1997 absences, prompting the Postal Service to request medical certification from his health care provider. From the Absence Analysis for 1997 (Ex. 48b), it appears that after the May 22 and 23 absences, Poteet's next scheduled work day was May 27. The testimony at trial was that a Postal Service employee generally filled out a leave request form on the first day back to work. Thus, Poteet's first written request for FMLA leave was made on May 27. He testified that shortly after the return of that leave request form, he was told he needed to have a WH-380 on file. Poteet's June 16 submission of the WH-380 was within a twenty day period of when he would have been told he needed a current WH-380. It is reasonable to infer that the Postal Service would have accepted the WH-380 received on June 16 as covering the May 22 and 23 absences. As the evidence shows, the Postal Service was extremely patient with Poteet on subsequent occasions when requesting medical and leave documentation.
Poteet does not recall who asked him to provide a "second" WH-380.
After taking FMLA leave in August 1997, Poteet next called into work requesting FMLA leave for November 14 through November 18, 1997. Carl Greene, an Attendance Control Supervisor, took his call. Attendance Control Supervisors took callin employee absences, recorded employee absences, counseled employees about their attendance, advised them what they needed to certify FMLA leave and issued discipline. Poteet indicated to Greene that his FMLA was already certified. On November 19, 1997, L. Long of the Attendance Control Office sent a memorandum to Sandra Crawford, Occupational Health Nurse Administrator of the Postal Service's Health Unit, inquiring whether Poteet had documentation in his medical file that satisfied the FMLA criteria for a serious health condition for his absences from November 14 to November 18, 1997. Nurse Crawford reviewed Poteet's file including the two WH-380s and, on November 24, 1997, she reported that Poteet had "no current WH-380 on file in Heath Unit." (Ex. 30.) Poteet was granted leave for these November 1997 absences, but not FMLA leave.
On December 1, 1998, Poteet called into the attendance line requesting FMLA leave for an absence on that day. Price took the call and noted on the leave request form that Poteet was requesting FMLA leave. ( See Ex. 48i.) Poteet returned to work on December 2, 1997.
Beginning on December 8, 1997, Poteet was absent from work. He claims he was entitled to FMLA leave for his absences on this date and thereafter. On December 8, he called into the Attendance Control Office, requesting FMLA leave through January 2, 1998. ( See Ex. 48j.) Poteet testified that the purpose for his leave was for stress, depression and anxiety. He did not, however, expressly testify that he could not perform work on or after December 8 because of these conditions or because of treatment for such conditions.
On December 18, 1997, Poteet was seen by Dr. DeStefano. According to Poteet, Dr. DeStefano felt he was having a relapse, so he increased his medication. Poteet testified that he and the doctor talked about work, and Dr. DeStefano advised him to stay off work as long as he needed to get adjusted to the medication. Dr. DeStefano's progress note for December 18, 1997, states that Poteet had some recent, mild relapse of depression and anxiety and that he was increasing his Paxil from "30 mg QD" to "40 mg QD." (Ex. 31.) The note indicates that Poteet was to follow-up with Jeff Freemas for therapy sessions and have a his medications evaluated in six months, or sooner if needed. ( Id.) However, the note also indicates that Poteet's job situation was "stable," and there is no indication on the note that Poteet had not been working since December 8. ( Id.) Dr. DeStefano did not complete a WH-380 at that time to certify that Poteet's absences on December 8 and thereafter qualified for FMLA leave.
Poteet did not visit his doctor or his counselor for any medical appointment again until January 20, 1998.
On December 19, 1997, Robert McCoy, Postal Service Distribution Operations Specialist for Tour III, sent Poteet a letter advising him that he had been "a call in absence since December 8, 1997[.]" (Ex. 32.) Enclosed with the letter was Publication 71, a Notice for Employees Requesting Leave for Conditions Covered by the Family Medical Leave Act, and a Form WH-380. Publication 71 advises that under the FMLA employees have certain obligations to provide documentation to their employers and specifically states that the "[f]ailure to provide such notice or documentation could result in denial of leave or other protections afforded under the Act." (Ex. 62.) The December 19 letter indicated that Poteet had fifteen days from receipt of the letter within which to return to his supervisor "properly completed FMLA documentation." (Ex. 32.) It advised him of his responsibilities set forth in the ELM, which included submitting documentation or other evidence of his incapacity to work during his absence. The letter directed Poteet to notify McCoy "in writing, within five days from receipt of this letter, as to [his] intentions toward [his] position." (Ex. 32.) The letter advised Poteet that "Unless acceptable evidence, justifying your absence, is received within the allotted five days, your entire absence may be considered unauthorized." ( Id. (emphasis in original.)) The letter was addressed to Poteet at "PO Box 199, Nashville, IN 47448." ( Id.)
In December 1997, Poteet was living in Trafalgar, Indiana. Poteet testified that he checked his post office box approximately once a month. At trial, he testified that he did not recall receiving the December 19 letter. However, he also testified that at his deposition on July 2, 2001, he had said that he received the letter and testified about actions he took following receipt of that letter. The court finds that Poteet received a copy of the December 19 letter from McCoy. Although Poteet did not receive the copy of the letter sent by certified mail, the evidence is that the Postal Service sends two copies of such correspondence to its employees. There is no evidence that the copy sent by regular mail was returned to the Postal Service, which supports a finding that Poteet received that copy of the December 19 letter. Furthermore, Poteet's recollection likely was more accurate during his deposition in July 2001 than at trial in January 2004 — about two and a half years later.
Poteet knew that he must present medical documentation to return to work at the Postal Service even if he was taking FMLA leave. However, he did not provide McCoy with anything in writing within five days as required by the December 19 letter.
Poteet claims he began feeling better the first week of January 1998, so he obtained a return to work statement from his doctor, dated January 9, 1998. On January 9, 1998, Poteet reported for work. He was scheduled to work Tour II, beginning from 7:00 a.m. to 3:30 p.m. He claims that he reported to Becky Woods, the acting Manager of Distribution Operations for Tour II, that he was back from FMLA leave. According to Poteet, he was assigned a job and, after working for about one hour, he was called to the operations office.
Poteet went to the operations office, where he was met by McCoy. McCoy told Poteet that he did not have a current WH-380 on file and he would have to leave. McCoy handed Poteet a letter signed by Pamela Holifield, then lead Manager of Distribution Operations for Tour II. The letter stated the same requirements set forth in McCoy's December 19 letter. The letter provided Poteet with a Publication 71 and a WH-380 and instructed him that he had "fifteen days from the receipt of the letter within which to return, to [his] supervisor, properly completed FMLA documentation." (Ex. 34.) As noted earlier, Publication 71 notifies employees of their obligations to provide documentation to their employers and notifies them that the "[f]ailure to provide such notice or documentation could result in denial of leave or other protections afforded under the Act." (Ex. 62.) The letter also advised Poteet of his responsibilities under the ELM to provide documentation regarding his absence. The letter directed him to notify Ms. Holifield in writing within five days as to his position and warned that his "entire absence may be considered unauthorized" unless "acceptable evidence, justifying your absence, is received within the allotted five days[.]" (Ex. 34.) Poteet did not submit anything to Holifield in writing within the five days allowed in the January 9 letter.
Poteet claims that he had a return to work statement on January 9 that he gave to Woods. He also claims that McCoy told him that his "doctor's excuse" was insufficient to allow him to return to work. Poteet's testimony about having a return to work statement and presenting it to Woods on January 9 is not believable. First, Woods gave more believable testimony that she remembered seeing Poteet only on January 23 and that she was not acting as a supervisor on January 9, 1998. (Tr. at 221-22.) The evidence is that Poteet did not see any of his health care providers for a medical appointment between December 18, 1997, and January 20, 1998. Thus, it would be unreasonable to find that he had a return to work statement from any of them on January 9. Further, neither Poteet nor the Postal Service has a copy of the return to work slip Poteet allegedly provided on January 9. (Tr. at 91.) Poteet has demonstrated the ability to obtain his medical records from his doctors and, if the January 9 return to work statement existed, he could have obtained it and offered it into evidence. The fact that he did not raises the reasonable inference that no such return to work statement exists. In addition, Poteet did not provide any specific information about the alleged return to work statement, for example, which health care provider gave it to him, the stated reason for his incapacity, and the duration of the incapacity. As a result, there is no evidentiary basis for the conclusion that this alleged return to work statement was sufficient certification under the FMLA or was sufficient to return Poteet to work under the ELM.
In response to the January 9 letter, Poteet took a Form WH-380 to his health care provider, dropped it off and indicated he needed to have another one completed because the other one must have expired.
Poteet claims that he contacted Lynnette Price, the Attendance Control Supervisor in 1997-98 for Tour II around January 14 or 15 and asked her what he needed to return to work. According to Poteet, she indicated that he needed a WH-380 and a doctor's excuse listing the days off and when he could return to work. (Tr. at 30.) Price, however, testified that she actually met with Poteet about the second week of January, when Bernice Taylor asked her to look at Poteet's WH-380. ( Id. at 120.) Price testified that she reviewed the April 1997 WH-380 that Poteet presented to her (Tr. at 122), and advised him that it was incomplete because it needed to contain an explanation of "frequency, duration, incapacity, and regimen of treatment." ( Id. at 120.) She also testified that she explained to him that Family Leave did not cover the custody of children. According to Price, after she told him his WH-380 was incomplete, Poteet snatched the WH-380 back from her and left in an agitated state. Poteet claims that Price told him he needed to list the medications he was taking. Price, however, testified that she never told Poteet that he had to disclose the types of medication he was taking or the side effects of the medications he was taking in order to return to work. (Tr. at 174.) She also testified that she told him his doctor needed to state that he was on prescription medication. ( Id.) Price's testimony in this regard was more credible as there was no reason for her to require Poteet to disclose the types of medications he was on.
Poteet saw his counselor Jeff Freemas on January 20, 1998. Freemas signed a medical statement which states in relevant part: "was seen due to stress and dep. 12-8" "can return 1/23/98." (Ex. 37.) Nurse Crawford testified that this documentation would not be sufficient to permit a bargaining unit employee who had been off work for 21 days to return to work because it did not state how long he had been off. (Tr. at 191.) (Poteet was a bargaining unit employee and had been off work since December 8, 1997 — more than 21 calendar days.) Freemas previously had signed three other return to work statements for Poteet. They stated: "He was off due to stress on 7-1 to 7-3 Return 7-3" (Ex. 24.); "Dennis was off due to stress from 7-16 to 7-27 may return to work 7-28" (Ex. 26); and "Dennis is off work from Aug 4th to Aug 24th due to stress and personal problems return to work Aug. 25." (Ex. 28.) The January 20 statement Poteet obtained from Freemas differs from these others in a critical respect: Freemas did not indicate that Poteet was "off" work due to stress or anything to that effect. Instead, he merely indicated that Poteet "was seen" due to stress and, presumably, depression. The court infers that this was not an unintentional error by Freemas, but rather, was an intentional and conscious effort by Freemas because, in his opinion, Poteet's absence from work was not due to his stress or depression.
Freemas did not sign a Form WH-380 to certify that any of Poteet's December 1997 or January 1998 absences qualified for FMLA leave. This was despite the fact that Poteet requested him to do so. This also substantiates the finding that Freemas did not believe that Poteet's absences from work were because of his serious health condition or medically necessary. According to Poteet, Freemas did not want to complete another WH-380 and went to his file and gave him a copy of the original WH-380 that Dr. DeStefano had filled out in April 1997, and told him, "Since they didn't accept it the first time. . . . Here, take this. This is good for 12 months. This should last for the rest of your last chance agreement." (Tr. at 31.) This explanation makes no sense. It would be quite odd for Freemas, a counselor, in January 1998 to provide Poteet with a medical certification filled out in April 1997 by Dr. DeStefano, a physician who no longer was with the medical practice. Also, it would be strange for Freemas to give Poteet a medical certification if he believed that certification had not been acceptable the first time around. The court finds that Poteet was unable to obtain a WH-380 from Freemas in January; Freemas would not provide a certification as he did not believe that Poteet's medical condition warranted it.
On or about January 23, 1998, Poteet presented the January 20 statement from Freemas to Margaret Payne, a nurse with the Health Care Unit for Tour III. The following information is required on a medical certification to return an employee to work: "Nature of injury or illness, duration and frequency, incapacitation, what treatments, prognosis, [and] ability to return to work with or without restrictions." (Tr. at 191.) Payne determined that Poteet's return to work statement was insufficient. (Ex. 38.) This determination was approved by R.B. Patel, MD, the medical officer who has the final authority with respect to whether an employee's medical documentation is sufficient to allow an employee to return to work. Payne testified that she would not find the January 20 statement sufficient documentation to return an employee to work because "[a]ll it has on there is return to work date. It does not say I was unable to work. Neither does it say how long he has been off." (Tr. at 210.)
Later that day after meeting with Payne, Poteet met with Becky Woods, Acting Manager of Distribution Operations for Tour II. He presented to her a medical certification form from the Health Unit. The form, found at Exhibit 38, indicates a return to work date of January 23, 1998, a check is placed on the form indicating that his documentation is not sufficient. The form is signed by Nurse Payne and has Dr. Patel's initials as well. Woods sought Price's assistance because it was an attendance matter. Price went to the operations office and reviewed Poteet's medical certification form from the Health Unit. A check was placed on the form indicating that his return to work documentation was not sufficient. Price testified that, as a result, she contacted the Health Unit to inquire why the documentation was insufficient. She was advised by Joann, the Tour II nurse, that the only thing in Poteet's file was a doctor's appointment form indicating Poteet had been to the doctor that day. Price told Poteet what the nurse had said, and Poteet left, indicating that he did not have another doctor's appointment until January 30, 1998. Price's notes regarding the meeting with Poteet on January 23, found at Exhibit 39, which were written when she returned to her office, are consistent with her testimony about what happened that day.
Price did not review the return to work statement itself. (Tr. at 141-42.) She specifically testified on cross-examination that Poteet did not present her with a copy of the return to work statement when they met on January 23. (Tr. at 180.) Price also testified that she did not have access to Poteet's medical file.
Poteet claims that on January 23 he presented the copy of the April 1997 WH-380 to Price, but his testimony is not credible. Poteet testified that he reported to work on January 23 and went to the operations office to see Price and present her with his WH-380 and the doctor's excuse. According to him, Price reviewed his WH-380 but did said nothing about it, and then read his doctor's note and said it was insufficient because it did not contain anything about his medications and that she needed to know what he was taking, how often, and whether there were any side effects. (Tr. at 32-33, 36-37.) Price testified that she did not review the WH-380 on January 23. Having considered Poteet's interest in the case, it is clear why he claims to have presented the WH-380 to Price on January 23 rather than January 9. Poteet claims that Freemas gave him a copy of the April 1997 WH-380 which he presented to the Postal Service in January 1998. But Poteet did not see Freemas until January 20. If one were to believe Poteet's story that Freemas gave him a copy of the April 1997 WH-380 on January 20, then Poteet would not have had the form to present to Price the second week of January — at least not the copy supposedly provided by Freemas. (He could have made a copy from the one he carried around in his cooler.) Price's testimony is corroborated by Woods' testimony that Poteet presented the January 20 return to work statement at the January 23 meeting. It is also corroborated by the Medical Certification form in the Health Unit's files which indicates that Poteet's return to work documentation for a return to work on "1-23-98" was insufficient, but contains no indication that he attempted to provide any documentation to meet the FMLA criteria and has no comments in the FMLA comments section. (Ex. 38.)
Poteet's testimony that Payne told him that his doctor's statement of January 20 was sufficient to get on the clock, but that Price told her not to accept it is incredible. (Tr. at 38-39.) The testimony of Postal Service employees, Price and Payne, which contradicts Poteet's testimony, is more believable. The credible evidence is that the Health Unit makes the determination as to whether the medical documentation of a bargaining unit employee such as Poteet is sufficient to return the employee to work. Woods' account of what happened on January 23 also supports Price's and Payne's testimony. Further, the documentation corroborates the testimony of Price and Payne: the medical certification form is initialed by Dr. Patel, indicating her approval of Payne's findings, and Price's contemporaneous notes corroborate her testimony. Price and Payne had nothing to gain by giving false testimony.
Poteet also testified that Payne did not tell him that his WH-380 was incomplete, but instead, copied his documents and gave him his copies back. (Tr. at 39.) This testimony likewise is incredible because, as stated, the court discredits Poteet's testimony that he presented the WH-380 on January 23 to the Postal Service. There is no credible evidence that Poteet ever presented the April 1997 WH-380 to Payne or anyone else in the Health Unit.
On January 30, 1998, Poteet visited Dr. John Wernert for the first time. Dr. DeStefano had left the practice by the beginning of the year. Poteet told Dr. Wernert that he had been using vacation since December 8, 1997. Dr. Wernert did not complete a Form WH-380 to certify that Poteet's absences qualified for FMLA. However, he provided Poteet with a return to work statement which said: "I saw Mr. Poteet for the 1st time today. He is compliant with treatment and is medically cleared to return to work." (Ex. 40.)
Poteet claims that he took Dr. Wernert's statement to the Postal Service "probably" the next day that he was scheduled to work and gave it to Price. He also claims that Price would not accept it because it did not say anything about his medication. The testimony that Poteet took the statement to Price is not credible given Price's testimony that she did not speak with or see Poteet between January 23 and February 11, 1998. (Tr. at 127.) Her testimony is corroborated by her letter of February 12, 1998, wherein she states that Poteet had not contacted Attendance Control since January 23. (Ex. 43.) But even if Poteet had presented Dr. Wernert's statement to Price, it is uncontradicted that this documentation was insufficient under the ELM/CBA to allow Poteet to return to work. Poteet acknowledged at trial that he knew that this statement did not comply with the ELM/CBA because it did not state what his incapacity was and how long he was off work. (Tr. at 78.) It seems more likely than not that Poteet did not present the Postal Service with Dr. Wernert's return to work statement and the reason was because Poteet knew it was inadequate.
On February 11, 1998, Price followed-up with the Health Unit because she still had not received any documentation in Attendance Control which would allow Poteet to return to work and she was going to send him another letter of intent. Price was told by Nurse Crawford that there was nothing in Poteet's file.
On February 12, 1998, Price sent Poteet another letter of intent. The certified mail return receipt shows that he received the letter on February 13, 1998. The letter states that Poteet has "been absent from duty since 12-8-97." (Ex. 43.) It states that he called in requesting FMLA leave on December 8, 1997, attempted to return to work with insufficient documentation on January 23, 1998, said he was going to his doctor on January 30, 1998, but had not contacted the Attendance Control Office since that date. The February 12 letter informed Poteet of his responsibilities outlined in the ELM, including that he submit "satisfactory evidence of continued incapacity for work" and documentation explaining the nature of his illness or injury sufficient to indicate to management that he was or will be unable to perform his duties during the absence. (Ex. 43.) The letter directed Poteet to notify Price in writing within five days as to his intentions regarding his position and reiterated that his entire absence may be considered unauthorized if he failed to submit within five days acceptable evidence justifying his absence. ( Id.) Poteet did not contact Price in writing within five days of receipt of the February 12 letter. (Tr. at 75.) Price received no documentation in response to her February 12 letter to Poteet. ( Id. at 129.)
As a result, on February 26, 1998, Price issued Poteet another letter by certified mail regarding his absence from duty. (Ex. 44.) The letter referenced the relevant events from December 8, 1997, and noted that Poteet had failed to respond to the February 12 letter of intent. Poteet was again advised that it was necessary for him to submit medical evidence to justify his absences and warned him in bold type as follows:
UNLESS ACCEPTABLE EVIDENCE JUSTIFYING YOUR ABSENCE IS RECEIVED WITHIN THE ALLOTTED FIVE DAYS, YOUR ENTIRE ABSENCE MAY BE CONSIDERED UNAUTHORIZED AND APPROPRIATE DISCIPLINARY ACTION WILL BE TAKEN.
(Ex. 44.) The letter gave Poteet five days within which to notify Price in writing of his intentions toward his position. Poteet did not respond in writing within five days to the February 26 letter. He explained that his doctor did not have the letter ready to take to the Post Office.
Consequently, Price prepared the Request for Disciplinary Action-Attendance, dated March 20, 1998, requesting Poteet's removal based on his absences on the following dates: 1. November 14-18, 1997; 2. December 1, 1997; and 3. December 8, 1997, to Present. (Ex. 48.) Pamela Holifield, lead Manager of Distribution Operations for Tour II, reviewed and approved the Request for Disciplinary Action. The Request also was reviewed by Labor Relations Specialist Kaila Singleton and another labor relations specialist to determine if it was technically correct. Singleton and the other labor relation specialist believed that the absences for November 14-18 and December 1 could have been covered by one of Poteet's WH-380s and thus could not be used in a disciplinary action. Singleton was satisfied that Poteet had no WH-380 for the absences beginning on December 8, 1997.
Singleton testified that they contacted the Health Unit to determine whether Poteet had any documentation for his absences and were told that he had a WH-380 in his file. The labor relations specialists believed it covered the November 14-18 absences. They were uncertain whether it would cover the December 1 absence as well, but erred on the side of caution and did not use that absence as grounds for disciplinary action against Poteet.
A labor relations specialist prepared the Notice of Removal, dated March 23, 1998. (Ex. 49.) The Notice states that Poteet "will be removed from the Postal Service on April 29, 1998," for "Failure to Comply with USPS Leave Policies/Absent Without Leave (AWOL)" for his absences from December 8, 1997, to the Present, which was 500+ hours AWOL. ( Id.) The Notice was signed by Carl Greene, an Attendance Control Supervisor for Tour II. After reviewing the supporting documentation including leave requests and absence record, Greene had determined that Poteet's absences violated USPS leave policies in the ELM (CBA) and that Poteet was absent without leave. Cherie K. Harwell, Manager of Distribution Operations for Tour II with the Postal Service on March 23, 1998, reviewed the documentation attached to the Notice of Removal, including the Absence Analysis, Form 3972, and the Requests for or Notification of Absence, Form 3971, to ensure that the documentation was accurate. ( See Ex. 48.) Having determined that the documentation was sufficient to support the removal, Harwell approved and signed Poteet's Notice of Removal.
On April 15, 1998, the Postal Service received a letter from Dr. Wernert to Becky Woods, dated March 20, 1998, regarding Poteet's ability to return to work. The letter indicates that Dr. Wernert is releasing Poteet to return to work as of March 26, 1998. (Ex. 49.) The letter identifies Poteet's current medications and indicates that he continues with counseling. ( Id.) Woods gave Price the letter and they decided that it was untimely since Poteet's removal already had been requested and sent out. According to Price, the letter was insufficient to justify Poteet's request for FMLA leave because it did not state that he was incapacitated. In any event, Poteet did not report to work on March 26, 1998, or for that matter, any time shortly thereafter.
On April 18, 1998, Poteet learned from Freemas that Dr. Wernert's letter was in his health care provider's file. After obtaining this information, Poteet called Price and left her several messages, but never heard back from her. Poteet was terminated effective April 29, 1998. (Tr. at 44.)
On December 5, 2000, the court dismissed Plaintiff's Complaint based on the two-year statute of limitation and granted the Plaintiff leave to amend the Complaint to include an allegation of a willful violation of the FMLA.
II. CONCLUSIONS OF LAW
Poteet claims the Postal Service willfully violated the FMLA by denying his right to FMLA leave and by failing to restore his employment after he took FMLA leave. He does not claim that he was discriminated against for exercising his FMLA rights.
This entry only addresses whether the Postal Service committed a willful violation of the FMLA because the issue of a non-willful violation was negated by Judge Young's earlier ruling eliminating that theory from the case. ( See Entry Def.'s Mot. Dismiss Pl.'s Mot. Amend Compl. (Dkt. No. 34).
The FMLA was enacted "to help working men and women balance the conflicting demands of work and personal life. It does so by recognizing that there will be times in a person's life when that person is incapable of performing her work duties for medical reasons." Price v. City of Fort Wayne, 117 F.3d 1022, 1024 (7th Cir. 1997). To further its purposes, the FMLA provides eligible employees with certain substantive rights. First, the Act "provides eligible employees of a covered employer the right to take unpaid leave for a period of up to twelve work weeks in any twelve-month period for a serious health condition as defined by the Act." Rice v. Sunrise Exp., Inc., 209 F.3d 1008, 1016-17 (7th Cir. 2000); see also 29 U.S.C. § 2612(a)(1); King v. Preferred Tech. Group, 166 F.3d 887, 891 (7th Cir. 1999). The FMLA also guarantees such an employee the right to reinstatement to his or her "former position or an equivalent one with the same benefits and terms of the employment that existed prior to the exercise of the leave." Rice, 209 F.3d at 1017; see also 29 U.S.C. § 2614(a); King, 166 F.3d at 891). To ensure the protection of these rights, the FMLA 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); Rice, 209 F.3d at 1017. Though an employer's intent is generally immaterial when an employee alleges a deprivation of these substantive rights, see Rice, 209 F.3d at 1017; King, 166 F.3d at 891; in this case Poteet must prove the Postal Service's willful violation of the FMLA since his Complaint was filed outside the two-year limitations period. 29 U.S.C. § 2617(c) (willful violations may be brought within three years). Poteet bears the burden of proof by a preponderance of evidence. See Kohls v. Beverly Enterp. Wis., Inc., 259 F.3d 799, 804 (7th Cir. 2001).
In order to prove that the Postal Service denied his FMLA substantive rights to FMLA leave and reinstatement, Poteet first must establish his entitlement to those rights. See Kohls, 259 F.3d at 804; Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711, 713 (7th Cir. 1997). The FMLA states that an eligible employee "shall be entitled to . . . leave . . . for one or more of the following: . . . [b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee." 26 U.S.C. § 2612(1)(D). Poteet's eligibility for FMLA leave is not at issue. The Seventh Circuit has said that leave is FMLA-qualifying under § 2612(a)(1)(D) if: "(1) it is the result of a `serious health condition' that (2) `makes the employee unable to perform the functions' of his job. If either of these elements is not met, the employee is not entitled to FMLA leave under sub-section (a)(1)(D)." Stoops v. One Call Communications, Inc., 141 F.3d 309, 313 (7th Cir. 1998). Thus, Poteet must show that (1) he had a serious health condition and (2) his condition made him unable to perform the functions of his position.
Poteet argues that he had a serious health condition as defined by the following regulation issued by the Department of Labor ("DOL") under authority of the FMLA, see 29 U.S.C. § 2654:
For purposes of FMLA, "serious health condition" entitling an employee to FMLA leave means an illness, injury, impairment, or physical or mental condition that involves: . . .
(2) Continuing treatment by a health care provider. A serious health condition involving continuing treatment by a health care provider includes any one or more of the following:
(I) A period of incapacity ( i.e., inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefor, or recovery therefrom) of more than three consecutive calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:
. . .
(B) Treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider.
. . . [and]
(iii) Any period of incapacity or treatment for such incapacity due to a chronic serious health condition. A chronic serious health condition is one which:
(A) Requires periodic visits for treatment by a health care provider, or by a nurse or physician's assistant under direct supervision of a health care provider;
(B) Continues over an extended period of time (including recurring episodes of a single underlying condition); and
(C) May cause episodic rather than a continuing period of incapacity ( e.g., asthma, diabetes, epilepsy, etc.).29 C.F.R. § 825.114(a)(2)(I), (iii) (italicized emphasis in regulation; underscored emphasis provided by court). "Incapacity" for purposes of § 825.114 is defined in relevant part as "inability to work . . . due to the serious health condition, treatment therefor, or recovery therefrom." The question of whether an employee has a condition that "constitutes a `serious health condition' under the FMLA is a legal question that an employee may not sidestep . . . merely by alleging his condition to be so." Haefling v. United Parcel Serv., Inc., 169 F.3d 494, 499 (7th Cir. 1999).
The evidence establishes that Poteet suffered from a serious mental condition, namely, depression and anxiety. Dr. DeStefano on two occasions and Counselor Freemas on another occasion certified that Poteet had a serious health condition under the FMLA. It is undisputed that Poteet received treatment more than two times from health care providers for his mental condition, that he had a regimen of continuing treatment (prescription medication) under the supervision of his physicians, and that his condition continued over an extended period of time. The evidence also establishes that there were times during 1997 that his condition caused periods of incapacity. However, the issue is whether Poteet has presented sufficient evidence to prove that beginning on December 8, 1997, he was absent from work because of his serious health condition which made him unable to perform the functions of his job. In other words, Poteet must prove that beginning on December 8, 1997, and after, he was unable to work because of his depression and anxiety or because of treatment therefor.
The record makes no hint that any of Poteet's absences were due to recovery from treatment. Thus, for ease, when discussing incapacity or inability to work, the court does not refer to recovery from treatment.
It is not enough for Poteet to show merely that he has a serious health condition; he must prove that the serious health condition made him unable to work during the absences for which he claims he was entitled to FMLA leave. See 29 U.S.C. § 2612(1)(D); Haefling, 169 F.3d at 499 (holding that employee did not show that he had a serious health condition where he could not show that his injury resulted in a period of incapacity); Stoops, 141 F.3d at 313 (if the leave is not the result of a serious health condition that makes the employee unable to perform the functions of his job then the employee is not entitled to FMLA leave); Murray Red Kap Indus., Inc., 124 F.3d 695, 698 (5th Cir. 1997) (indicating that plaintiff must show that her absence from work "was necessary" and affirming judgment as a matter of law where there was no evidence that employee was unable to work during absence) (emphasis in original); Martyszenko v. Safeway, Inc., 120 F.3d 120, 122-23 (8th Cir. 1997) (requiring showing of incapacity for plaintiff to have a serious health condition under the FMLA); Price v. City of Fort Wayne, 117 F.3d 1022, 1025 (7th Cir. 1997) (emphasizing need to show incapacity in order to establish a serious health condition under FMLA).
Poteet argues that he had several periods of incapacity throughout 1997 and 1998. For support, he cites to Exhibits 13, 14, 19, 24, 26, 28, 29, 31 and 48b. (Pl.'s Post-Trial Br. at 23.) None of these, however, raises a reasonable inference that Poteet was incapacitated due to his mental health condition on December 8, 1997, or thereafter. Exhibits 13, 19 and 29 are Poteet's three WH-380s. None of them indicates that Poteet would be unable to work on any particular day, including December 8 and any date thereafter. In fact, according to the June 1997 WH-380 and the 8/24/97 WH-380, December 8 was outside the expected duration of Poteet's serious health condition. Exhibit 14 is the letter of April 9, 1997, written by Dr. DeStefano. This letter does not hint that Poteet might have to miss any work. Exhibits 24, 26 and 28 are medical statements for July 2, 1997, July 23, 1997, and August 7, 1997. While they establish that Poteet was unable to work for periods of time during those months, they do not address the absences or Poteet's ability to work beginning on December 8. Exhibit 48b is the Postal Service's absence analysis for Poteet for 1997 which merely shows he had taken FMLA leave at various times throughout that year, though all prior to December 8.
The last exhibit cited by Poteet is Dr. DeStefano's progress notes dated December 18, 1997. This is the only cited evidence which falls within the relevant time period. Though Dr. DeStefano noted a recent, mild relapse of Poteet's depression and anxiety and increased the dosage of his medication, he also noted that Poteet's job situation was "stable." (Ex. 31.) Further, the notes do not indicate that Dr. DeStefano advised Poteet to be off work. Significantly, Poteet has presented no certificate for return to work or other such document from Dr. DeStefano from December 18 indicating that his absences were because of his depression and anxiety or treatment thereof. Poteet, however, did obtain such statements from Freemas on occasion and made them part of the record — when the statements supported his claim to FMLA leave. He also obtained the April 9 letter from Dr. DeStefano regarding his condition and need for a reduced work day and two WH-380s. These documents confirm that Poteet was able to obtain documentation from his health care providers. The documentation from Dr. DeStefano demonstrates that this doctor in particular was willing and able to provide Poteet with medical documentation to support his claim for leave or reduced hours when necessitated by his mental condition or treatment thereof. The absence from the record of any such a document from Dr. DeStefano for December 18 raises the reasonable inference that Dr. DeStefano did not provide one to Poteet because he did not find it necessary for Poteet to be off work.
Though part of Poteet's absence on December 18 would have been due to his medical appointment with Dr. DeStefano, nothing in the record suggests that this appointment required his absence for the entire day.
Without a certification or other documentation from Dr. DeStefano or other evidence to establish Poteet's incapacity due to his medical condition or treatment therefor beginning on December 8, 1997, Poteet's FMLA claims against the Postal Service are doomed. The only other evidence Poteet offers which arguably might advance his cause is his own testimony and the following exhibits: the January 30, 1998, release to return to work signed by Dr. Wernert (Ex. 40), Behavioral Health Progress Notes for March 5, 1998, and March 20, 1998, and an undated staff note by Freemas (Exs. 45-47), and the March 20, 1998, letter to Woods from Dr. Wernert (Ex. 49). Having considered these, the court concludes that none of them, whether alone or in combination, establishes by a preponderance that Poteet was incapacitated beginning on December 8, 1997, and thereafter. Freemas' and Wernert's progress notes for March 5 and March 20 indicate that Poteet was not working, but do not indicate that was on the advice of any health care provider, or because of his depression, anxiety or stress, or treatment therefor.
Obviously, Poteet was seen by Dr. Wernert and Freemas on several occasions in early 1998 before the effective date of his termination. While his absences for the purposes of these medical appointments may have been entitled to FMLA protection, these appointments represent a minute portion of the time during which Poteet was absent from work.
Dr. Wernert's letter to Becky Woods of March 20 indicates that Poteet "is now medically released to return to work," "has been off work since December 8, 1997, and his first day back to work should be March 26, 1998," and the doctor is "releasing Mr. Poteet to return to full time duties[.]" (Ex. 49.) While this letter may offer slim support to Poteet's claim that he was unable to work on December 8 and after, the court does not accord the letter much weight. Dr. Wernert was writing the letter on behalf of Mr. Poteet, at his request, in order to assist him in his return to work. Thus, it is reasonable to infer that Dr. Wernert was doing what he could to help his patient. In addition, the letter is significant because of what it does not indicate. Though Dr. Wernert writes that Poteet "is now medically released to return to work," he did not state that Poteet had been unable to work or had been off work because of his mental condition or on his doctor's advice. Nor does Dr. Wernert indicate that Poteet was not medically approved to return to work before March 26. Moreover, Dr. Wernert previously had approved Poteet's return to work on January 30, 1998, as evidenced by his note to that effect. (Ex. 40.) Though the January 30 note states that Poteet was seen that day and "is medically cleared to return to work," this note, like the subsequent letter, does not indicate that Poteet had been unable to work due to his health condition or treatment therefor on any earlier date. The fact that Dr. Wernert states that Poteet is medically cleared to return to work, alone, does not support a reasonable inference that Poteet was not or would not have been medically cleared to return to work on an earlier date.
The court finds the undated staff note written by Freemas to "John" quite significant. (Ex. 46.) The note is written to "John" whom the court infers is Dr. Wernert who first saw Poteet on January 30, 1998. The note states that Poteet "was" treated by Dr. DeStefano which suggests the note was made after DeStefano left the practice — which he did by January 1998. The text of the note suggests that its purpose is to introduce Poteet to the recipient. (Ex. 46 ("Thanks for seeing him.")) Thus, the court infers the note was written sometime in January 1998 before Poteet was seen by Dr. Wernert on January 30. The note references what the court understands to be an FMLA certification by Dr. DeStefano and indicates that it "wasn't quite acceptable" and that Poteet wants another one or to have Dr. DeStefano's revised. (Ex. 46.) Freemas then wrote: "I think he needs to be working. He is in custody battle with ex-wife who apparently doesn't give him the kids on his days off so he doesn't work." ( Id.) The court understands Freemas' note as offering an opinion on two significant matters. First, the court infers that Freemas does not find it medically necessary for Poteet to be off work. His note says as much. Further, Freemas' note offers a likely explanation as to why Poteet was not at work beginning on December 8 and thereafter — because he wanted to spend time with his children, not because of a medical necessity or inability to work due to his mental health condition. This note also provides a crystal clear explanation for the reason why Poteet was unable to obtain a current WH-380 from Freemas in January 1998 — Freemas though he should be working and thus refused to certify Poteet had a serious health condition which would justify his absence from work.
No one can fault Poteet for desiring to spend time with his children, but the FMLA does not entitle an eligible employee to leave simply to spend time with his child unaccompanied by a serious health condition.
That leaves Poteet's testimony, but even his own testimony is insufficient to establish by a preponderance of the evidence that he was unable to work because of his serious health condition or treatment therefor or recovery therefrom. Poteet testified that he called into the Attendance Control Office on December 8, 1997, and that the purpose for taking leave was "stress, depression, [and] anxiety." (Tr. at 24.) This testimony is at best conclusory and is extremely self-serving. This testimony also lacks detailed factual support about Poteet's condition during the absences at issue, and lacks other sufficient evidentiary support in the record. While on December 18, 1997, Dr. DeStefano noted a recent mild relapse of Poteet's depression and anxiety, nothing, other than Poteet's own belief, suggests that such a relapse rendered him incapacitated. Poteet never actually testified that he was unable to work at that time due to his stress, depression and anxiety, or treatment for those conditions. Other than his limited contacts with the Postal Service and health care providers, Poteet offered no testimony about his physical, mental and emotional capabilities on December 8, 1997, or after. If the Plaintiff felt too stressed, depressed or anxious to get out of bed in the mornings, or too exhausted to function normally, or if such conditions manifested themselves in sleeping or eating difficulties, perhaps that evidence would have helped his case, but the record does not support that he was so incapacitated then. But for the few contacts with the Postal Service and health care providers, there is nothing in the record addressing what Poteet actually did or was capable of doing from day to day beginning on December 8, 1997, and thereafter. Furthermore, the evidence is that from December 8 through his termination, Poteet was seen infrequently by his health care providers. He was seen by Dr. DeStefano on December 18, 1997, and was not seen again for treatment or counseling for his mental condition until January 20, 1998. He was not admitted to any hospital or other inpatient facility — at least not that the record shows. If Poteet's condition was so serious as to prevent him from performing his work from December 8 through January 20 and after, the court would reasonably expect more frequent contacts with his health care providers than the record shows that he had.
Moreover, Poteet's own actions support the conclusion that, at least beginning on January 9, 1998, neither his health condition nor treatment therefor made him unable to work. Poteet testified that he began feeling better in early January and reported to work on January 9. He was sent home because of insufficient documentation, but he did not report back to work until at least January 23. Thus, it was his inability to provide sufficient documentation — not his condition or treatment — that kept him from working during this time. Also, Dr. Wernert's note of January 30, 1998, indicated that Poteet could return to work. But he did not. This, too, suggests that it was not Poteet's condition or treatment that was keeping him off the clock.
Therefore, Poteet's own testimony that he requested leave beginning on December 8, 1997, because of his depression, stress and anxiety is insufficient to prove by a preponderance of the evidence that these absences were necessary and that he was entitled to FMLA leave for those absences. See, e.g., Haefling, 169 F.3d at 500 (holding that employee presented insufficient evidence to raise a genuine issue as to whether he suffered from a serious health condition where he "did not submit an affidavit from his own doctor or any other medical personnel" and his "own self-serving assertions regarding the severity of his medical condition and the treatment it required [were] insufficient to raise an issue of fact"); Wessel v. Enersys, Inc., No. 03-4089-SAC, 2005 WL 476371, *7 (D. Kan. Feb. 17, 2005) ("Plaintiff's conclusory and contradictory testimony that she was not able to work on those dates is insufficient to create a genuine question of material fact regarding her entitlement to intermittent FMLA leave."); McCoy v. Port Liberte Condominium Ass'n #1, Inc., 2003 WL 23330682, *5-6 (D.N.J. Sept. 12, 2003) (concluding that employee could not establish incapacity "[w]ithout a doctor's statement that she was incapacitated"); Bell v. Jewel Food Store, 83 F. Supp. 2d 951, 959 (N.D. Ill. 2000) ("[w]hile he claims that he was unable to do anything, [plaintiff''s own statement is not enough to establish he was incapacitated: [plaintiff] must provide evidence from a medical professional or health care provider that he was unable to work."). The court finds that Poteet has not proven by a preponderance of the evidence that he suffered from a serious health condition under the FMLA which made him unable to perform the functions of his position as mail handler when he was absent from work beginning on December 8, 1997, and thereafter. It follows that Poteet has not proven that he was entitled to FMLA leave with respect to his absences on December 8, 1997, and thereafter. See, e.g., Stoops v. One Call Communications, Inc., 141 F.3d 309, 313 (7th Cir. 1998) (if the leave is not the result of a serious health condition that makes the employee unable to perform the functions of his job then the employee is not entitled to FMLA leave). And, as a result, he cannot prove that he was entitled under the FMLA to be reinstated to his or an equivalent position. Accordingly, the court finds that Poteet has not proven that the Postal Service's failure to grant him leave and to restore him to his position violated the FMLA.
It is not enough for Poteet to show that he was incapacitated at other times by his condition; he must show that the absences at issue were medically necessary.
Thus, Poteet's claim that the Postal Service violated the FMLA by refusing to allow him to return to work on January 9, 23 and 30 and April 15 is unavailing, and the court need not reach the thorny issues raised presented by the parties' arguments regarding the requirement that Poteet comply with the return to work provisions of the ELM/CBA. In any event, it is noted that the court does not find that Poteet presented such a statement on either January 9 or 30.
But even if Poteet had proven that he suffered from a serious health condition under the FMLA which incapacitated him on December 8, 1997, and thereafter, he still has not shown that the Postal Service violated the Act, let alone willfully. Poteet never presented sufficient certification to the Postal Service that his condition on December 8, 1997, or thereafter had been medically determined to be a serious health condition, or that his condition was incapacitating.
The FMLA allows an employer to require that an employee's request for FMLA leave be supported by a certification issued by the health care provider. 29 U.S.C. § 2613. Rager v. Dade Behring, Inc., 210 F.3d 776, 777 (7th Cir. 2000); 29 C.F.R. § 825.305. The Act states that such certification "shall be sufficient if it states:"
(1) the date on which the serious health condition commenced;
(2) the probable duration of the condition;
(3) the appropriate medical facts within the knowledge of the health care provider regarding the condition; * * *
(4)(B) for purposes of leave under section 2612(a)(1)(D) of this title, a statement that the employee is unable to perform the functions of the position of the employee;
(5) in the case of certification for intermittent leave, or leave on a reduced leave schedule, for planned medical treatment, the dates on which such treatment is expected to be given and the duration of such treatment;
(6) in the case of certification for intermittent leave, or leave on a reduced leave schedule, under section 2612(a)(1)(D) of this title, a statement of the medical necessity for the intermittent leave or leave on a reduced leave schedule, and the expected duration of the intermittent leave or reduced leave schedule;29 U.S.C. § 2613(b). If the employer requires the employee to submit such certification, it must give the employee at least fifteen calendar days within which to do so and must notify the employee of the consequences of a failure to comply with this requirement. Rager, 210 F.3d at 777; 29 C.F.R. §§ 825.301(b)(1), .305(d). If the employer requires certification and the employee fails to provide sufficient certification, then the absence is not FMLA leave. See Rager, 210 F.3d at 778 (stating that the employer is required to tell the employee of the consequences of not submitting medical certification, "which in this case was termination because in the absence of an entitlement under the Family and Medical Leave Act the plaintiff had no excuse for being absent from work"); Baldwin-Love v. Elec. Data Sys. Corp., 307 F. Supp. 2d 1222, 1234-35 (M.D. Ala. 2004) (concluding employer did not violate FMLA by terminating employee for unexcused absences where she failed to provide sufficient medical certification); 29 C.F.R. § 825.311(b) ("If the employee never produces the certification, the leave is not FMLA leave.").
Poteet argues that he put the Postal Service on notice of his need for FMLA leave. That, however, is not disputed in this case. The evidence establishes that Poteet called the Postal Service on December 8, 1997, requesting FMLA leave.
Poteet contends that the Postal Service waived its right to seek verification of his absences. The authorities he cites do not lead to this conclusion. In Dormeyer v. Comerica Bank-Illinois, 233 F.3d 579, 582 (7th Cir. 2000), the Seventh Circuit held invalid 29 C.F.R. § 825.110(d), which permitted an employee to take FMLA leave if the employer failed to advise the employee whether he or she was eligible for FMLA leave before the leave began. That regulation is not at issue here. The issue in Niese v. General Electric Co., 2001 WL 290382, at *7 (S.D. Ind. Jan. 31, 2001), and Stoops, 141 F.3d at 312, was whether the employee provided sufficient notice to the employer of the need for FMLA leave. As mentioned, that it is not disputed that Poteet provided sufficient notice of the need for FMLA leave. Rager does not support Poteet's waiver argument. Instead, it supports the Postal Service's contention that it did not violate the FMLA in terminating Poteet's employment. Thorson v. Gemini, Inc., 205 F.3d 370, 380 (8th Cir. 2000), is inapposite because in that case the employer never requested medical certification. Zawadowicz v. CVS Corp., 99 F. Supp. 2d 518, 530-31 (D.N.J. 2000), where the court found issues of fact regarding whether the employee was informed of his obligation to provide medical certification, and where the employer waited several months before requesting recertification also is distinguishable. The Postal Service advised Poteet of the need to provide medical certification and did not wait several months before doing so. The employee in Routes v. Henderson, 58 F. Supp. 2d 959, 980 (S.D. Ind. 1999), took sick leave and did not request FMLA leave.
Poteet argues that the Postal Service waived its right to obtain certification of his absences as entitled to FMLA-protections because it did not request such certification within two business days after his leave commenced on December 8, 1997, did not provide written notice of its requirement of certification, and did not provide him with notice of the consequences of the failure to provide such certification. 29 C.F.R. § 825.305(c) provides that "[i]n most cases, the employer should request that an employee furnish certification from a health care provider at the time the employee gives notice of the need for leave . . . or in the case of unforseen leave, within two business days after the leave commences." Poteet is right about one thing: the Postal Service did not request medical certification from Poteet when he called in his absence on December 8 or within two business days thereafter. However, the regulation does not require an employer to request certification within two days. It does not employ prescriptive language such as "shall," "must" or "required," though other FMLA regulations use such terms when addressing an employer's obligations under the FMLA, see, e.g., 29 C.F.R. § 825.209(a) ("During any FMLA leave, an employer must maintain the employee's coverage under any group health plan"), § 825.215(d)(1) (stating that "benefits must be resumed"), but also an employee's obligations under the FMLA, see, e.g., 29 C.F.R. § 825.302 ("An employee must provide the employer at least 30 days advance notice"). Even another subsection of the regulation relied on by Poteet demonstrates the DOL's ability to make mandatory an obligation of the employer when it chose to do so. 29 C.F.R. § 825.305(d) ("At the time the employer requests certification, the employer must also advise an employee of the anticipated consequences of an employee's failure to provide adequate certification."). Moreover, this is not a case where the employee has claimed that the untimely notice of the need for certification prejudiced his ability to obtain sufficient certification. And, any conclusion that the Postal Service acted willfully with respect to its failure to request certification within two business days after Poteet's leave commenced on December 8, 1997, would not find adequate support in the evidence presented at trial.
Poteet errs in claiming that the Postal Service did not provide written notice that certification was required and did not provide notice of the consequences if he failed to provide certification. Beginning in December 1997, the Postal Service requested Poteet to provide certification of his serious health condition, and provided him with the Form WH-380 certificate for the purpose of doing so. Poteet was provided letters dated December 19, 1997, and January 9, 1998, which requested that he present properly completed FMLA documentation and enclosed Publication 71s and WH-380s to assist him. These letters constitute written notice. The letters also advised Poteet of the consequences of failing to provide certification. They indicated that unless acceptable evidence was received justifying his absences, his absence may be considered unauthorized. Publication 71 specifically advises of an employee's obligation to provide documentation to the employer and states that the "[f]ailure to provide such notice or documentation could result in denial of leave or other protections afforded under the Act." (Ex. 62.) Poteet contends that the notice given regarding the consequences was insufficient because he was not advised that the failure to provide sufficient documentation could result in his termination. He cites no authority to support his position. Publication 71 did give Poteet notice of the direct consequences of a failure to provide sufficient documentation — the denial of FMLA leave and other protections under the Act. Poteet's resulting termination was an indirect consequence. Furthermore, the December 19 and January 9 letters advised Poteet that the if sufficient documentation were not provided, his absences could be considered unauthorized. Thus, the Postal Service gave Poteet written notice of the consequences of failing to provide sufficient documentation.
The DOL developed Form WH-380 for use in obtaining medical certification that meets the FMLA's certification requirements. 29 C.F.R. § 825.306(a) App. B.
The court finds that Poteet did not return properly completed FMLA certification following the Postal Service's request for such documentation. After December 8, 1997, Poteet presented only one WH-380 to the Postal Service: a copy of the WH-380 completed by Dr. DeStefano in April 1997. This documentation is insufficient certification that Poteet suffered from a serious health condition under the FMLA on and after December 8, 1997.
Poteet claims that he presented the April 1997 WH-380 to the Postal Service in April 1997. The credible evidence, however, establishes that Poteet presented the April 1997 WH-380 for the first time when he met with Price the second week of January 1998. At that time, Price advised him that the WH-380 was insufficient, as the FMLA requires, as discussed below, because it did not contain an explanation of "frequency, duration, incapacity, and regiment of treatment." After hearing that, Poteet snatched back his WH-380 and left. At the least, Price was right that the April 1997 WH-380 did not explain the duration of treatment. The WH-380 also references Poteet's "ongoing difficulty with custody of children" and that his "[c]ourt dates continue to be pushed back," but these facts without more do not support a claim for FMLA protection. Thus, the court finds that Poteet did not present the Postal Service with a sufficient WH-380 entitling him to FMLA leave beginning December 8, 1997. Because he did not present such certification, his absences beginning on December 8, 1997, and thereafter, were not entitled to FMLA leave. See Rager, 210 F.3d at 778; 29 C.F.R. § 825.311(b).
Furthermore, because the court finds that Poteet did not present the April 1997 WH-380 to the Postal Service until January 1998, Poteet's claim that the Postal Service violated the FMLA by requesting "additional" certifications in June 1997 and August or September 1997 before the April 1997 WH-380 had expired, see 29 C.F.R. § 825.308(b)(2), fails. Moreover, the April 1997 WH-380 was incomplete and therefore was insufficient certification under the FMLA anyway. So, even if Poteet had provided it to the Postal Service in April 1997, the Postal Service did not violate the FMLA in requesting further certification in June 1997.
Similarly, the June 1997 WH-380 indicated a probable duration of Poteet's condition of 3 to 6 months beginning in March 1997. That certification would have expired, at the latest, at the end of August 1997. Poteet has not shown by a preponderance of the evidence that the Postal Service told him he needed a new certification before the June 1997 certification had expired: He has not established when after his August 25 return to work the Postal Service requested additional certification. Therefore, Poteet has not proven that the Postal Service violated the FMLA in requesting another certification following his August 25 return to work.
Poteet points out that the Postal Service did not advise him that the June 1997 WH-380 and the 8/24/97 WH-380 were insufficient. This is correct, though he cites nothing to establish that the Postal Service's acceptance of these arguably insufficient certifications bound it to accept a subsequent insufficient certification — even if the insufficiencies are similar. Because the April 1997 WH-380 was incomplete, the FMLA provisions and regulations regarding clarifying and authenticating the medical certification and authorizing the employer to seek a second opinion, 29 U.S.C. § 2613(c)-(d); 29 C.F.R. § 825.307, are inapplicable. Furthermore, the Postal Service's decision not to seek a second opinion does not bar it from now contesting whether Poteet's certification was sufficient. See Rhoads v. Fed. Deposit Ins. Corp., 257 F.3d 373, 386 (4th Cir. 2001) (holding that "[b]ecause the term `may' is permissive, the plain language of the statute indicates that an employer who questions the validity of a certification has the option of seeking a second and third opinion, without being required to do so" and "the plain language of the Act does not suggest that an employer must pursue these procedures or be forever foreclosed from challenging whether an employee suffered from a serious health condition"). Poteet cannot complain that the Postal Service's acceptance of the two earlier WH-380s estop it from claiming that the WH-380 presented in January 1998 is insufficient. He cannot show reasonable reliance on the acceptance of the other certifications given the credible evidence that Price told him when he presented the April 1997 WH-380 in January 1998 that it was insufficient and what he needed for it to be acceptable. Atwell v. Lisle Park Dist., 286 F.3d 987, 992 (7th Cir. 2002) ("Estoppel requires reasonable reliance on the misrepresentation of the party who is sought to be estopped.").
None of the other medical documentation Poteet presented to the Postal Service after December 8, 1997, constitutes sufficient certification for FMLA purposes either. Freemas' return to work statement dated January 20, 1998, is insufficient because it does not state that Poteet was unable to work or was incapacitated. As the Postal Service contends, the record makes clear that Freemas knew how to indicate when Poteet had been off work due to his condition. Thus, Freemas' choice of words, and the omission of any indication that Poteet had been off work in the January 20 statement supports a finding that Freemas was not certifying that Poteet had been off of or was unable to work due to his health condition.
Poteet claims to have presented a return to work statement to the Postal Service on January 9, but his testimony in this regard is not credible. Even if his testimony could be believed, Poteet has offered no evidence to prove that such a statement met the FMLA certification requirements. Poteet also claims to have taken a January 30 note from Dr. Wernert to Price "probably" the next day he was scheduled to work. (Tr. at 41.) Price, however, testified that she met with Poteet only on two occasions, the first time about the second week in January and the second on January 23, and that she did not meet with Poteet on January 30. (Tr. at 127.). Poteet could not have had Dr. Wernert's January 30 statement on either of those occasions. Price also testified that Poteet did not present her with the statement. Price's testimony is more credible. She has no self-interest in this action; Poteet has an obvious interest in the outcome of this action. Poteet also testified that he did not present anything in writing to the Postal Service after receiving the December letters of December 19, January 9, February 12, and February 26. Thus, his own testimony is inconsistent. But even if Poteet had presented Price with Dr. Wernert's note of January 30, even Poteet admitted that this note was insufficient to return him to work because it did not indicate what his incapacity was or how long he had been off. It also was insufficient certification under the FMLA. See 29 U.S.C. § 2613(b). The note does not state the date on which Poteet's serious health condition commenced, its probable duration, appropriate medical facts regarding the condition, that Poteet was unable to perform the functions of his position, and that leave was medically necessary. See id.
The FMLA regulations state that "[t]he employer shall advise an employee whenever the employer finds a certification incomplete, and provide the employee with a reasonable opportunity to cure any such deficiency." 29 C.F.R. § 825.305(d); see Sorrell v. Rinker Materials Corp., 395 F.3d 332, 337 (6th Cir. 2005); Miller v. AT T Corp., 250 F.3d 820, 836 (4th Cir. 2001). An incomplete certification is tantamount to an insufficient or inadequate certification or a certification that does not provide the information requested by the employer. See Strickland v. Water Works Sewer Bd. of City of Birmingham, 239 F.3d 1199, 1209 n. 12 (11th Cir. 2001) (using inadequate interchangeably with incomplete for purposes of § 825.305(d)); Baldwin-Love, 307 F. Supp. 2d at 1234. The evidence establishes that the Postal Service through Price advised Poteet that the WH-380 he presented in January was insufficient and explained what the certification needed to contain to be sufficient. The evidence also establishes that the Postal Service gave Poteet more than a reasonable opportunity to cure the insufficiencies in his WH-380. The Postal Service's letter to Poteet of January 9 provided him with a Publication 71 and a WH-380 to assist him in providing adequate certification and gave him fifteen days within which to do so. Assuming that Poteet met with Price near the end of the second week of January, his fifteen days allowed under the January 9 letter had not yet run. He still had time to provide a sufficient WH-380. The letters of February 12 and February 26 referenced the Publication 71 and WH-380 given Poteet on January 23 and each letter allowed him five more days within which to submit acceptable evidence justifying his absences. He did not do so within the reasonable amount of time allowed; nor did he request additional time within which to submit medical certification.
Poteet attempts to rely on the 8/24/97 WH-380 as certification for his absences beginning on December 8, 1997. According to him, this WH-380 was current when he requested leave on December 8, 1997, because the Postal Service received this certification on September 11, 1997. This WH-380 indicated that Poteet's condition would continue for "3 months from today's date." There is uncertainty as to what Freemas meant by "today's date" means since he did not date the form when he completed it. Nonetheless, Poteet has not shown by a preponderance of the evidence that Freemas completed the form on or about September 11, 1997, or, for that matter, on September 8, 1997. Moreover, even assuming that the 8/24/97 WH-380 was current when Poteet requested leave on December 8, 1997, and assuming that "today's date" meant September 11, 1997, the certification only substantiated Poteet's serious health condition and absences through December 11, 1997. Thus, Poteet's absences after December 11, even under his view of the evidence, would not be covered by the 8/24/97 WH-380.
Poteet argues that the Postal Service would interpret a WH-380 as covering all absences until the end of the month in which it expired. The evidence does not support his position, though. Singleton testified that she erred on the side of caution in including Poteet's December 1, 1997, absence as certified by the WH-380 which she understood to cover the time through November 24, 1997, because the December 1 absence was close to the end of the month. Clearly, the absence was within a day of the previous month's end. It is a stretch to conclude that any FMLA certification that indicates a duration which ends in the middle of a month would be viewed as covering all absences up through and including the end of the month. And even if it were accepted as Poteet suggests it should be, not even Poteet claims that the 8/24/97 1997 WH-380 should cover his January 1998 absences and beyond.
The court finds that Poteet never provided sufficient certification of a serious health condition on or after December 8, 1997. Therefore, his absences beginning on that date were not entitled to FMLA protection. As a result, Poteet was not entitled to the FMLA's guarantee of restoration to his position upon his return from his leave in January 1998 or any time thereafter. Thus, the Postal Service did not violate the FMLA in not restoring Poteet to his position and in terminating his employment instead.
Because Poteet has not shown entitlement for FMLA leave for his absences on December 8 and thereafter, his arguments regarding whether the FMLA supercedes the return to work requirements of the CBA/ELM are beside the point. The FMLA provisions regarding return to work certification simply do not apply since Poteet did not take FMLA leave.
But even if Poteet was entitled to take FMLA leave for his absences on and after December 8, 1997, he cannot prevail against the Postal Service. Poteet was terminated for failing to comply with the Postal Service's leave policies, specifically employee responsibilities under the ELM, and being absent without leave. Even assuming that the Postal Service violated the FMLA by imposing more stringent return to work requirements on him than "a simple statement of [his] ability to return to work," 29 C.F.R. § 825.310(c); see also 29 C.F.R. § 825.310(a); Poteet has not shown that the Postal Service's violation was willful.
Nor has he shown that any other alleged violations of the FMLA were willful.
The FMLA does not define "willful." The Seventh Circuit has not addressed the meaning of "willful" under the FMLA. However, circuits which have done so have adopted the definition of "willful" set forth in McLaughlin v. Richland Shoe Co., 486 U.S. 128 (1988). See Porter v. New York Univ. Sch. of Law, 392 F.3d 530, 531-32 (2d Cir. 2004); Hanger v. Lake County, 390 F.3d 579, 583 (8th Cir. 2004); Hillstrom v. Best Western TLC Hotel, 354 F.3d 27, 33-34 (1st Cir. 2003); see also Ricco v. Potter, 377 F.3d 599, 602-03 (6th Cir. 2004) (adopting similar language) . In McLaughlin, the Supreme Court, reviewed a claim under the Fair Labor Standards Act ("FLSA") and held that an employer acts willfully when he either "knew or showed reckless disregard for the matter of whether its conduct was prohibited by the [FLSA]." 486 U.S. at 133. The Court added that "[i]f an employer acts reasonably in determining its legal obligation, its action cannot be deemed willful. . . . If an employer acts unreasonably, but not recklessly, in determining its legal obligation, then . . . it should not be . . . considered [willful.]" Id. at 135 n. 13.
The evidence fails to support a conclusion that the Postal Service knew or showed reckless disregard for whether requiring Poteet to comply with the ELM provisions regarding return to work violated the FMLA. The Postal Service repeatedly advised Poteet of his obligations under the FMLA and gave him numerous opportunities to provide documentation to substantiate his absences under both the FMLA and the ELM. The FMLA allows an employer to require certification from an employee's heath care provider that the employee is able to resume work as a condition of restoring the employee to his position. 29 U.S.C. § 2614(a)(4). The Act provides that "nothing in this paragraph shall supercede a valid . . . collective bargaining agreement that governs the return to work of such employees." Id. The FMLA regulations further explain that: "If . . . the terms of a collective bargaining agreement govern an employee's return to work, those provisions shall be applied. . . . ." 29 C.F.R. § 825.310(b). Given this language in the FMLA itself and the implementing regulations as well as the disagreement among the courts as to whether the FMLA allows an employer to apply the return to work requirements of a CBA which impose greater obligations on the employee than the FMLA, compare Conroy v. Twp. of Lower Merion, 2001 WL 894051, at * (E.D. Pa. Aug. 7, 2001) (holding that the "FMLA simply entitles an employee to resume her employment. . . . It does not, however, ensure a particular administrative procedure for returning to work."), aff'd, 2003 WL 22121002 (3rd Cir. 2003), cert. denied, 124 S. Ct. 2872 (2004), with Routes v. Henderson, 58 F. Supp. 2d 959, 994-95 (S.D. Ind. 1999) (holding Postal Service did not have right under FMLA to condition employee's return to work on fitness for duty examination based on CBA provision referring to Postal Service handbooks, manuals and published regulations where no provision of the CBA specifically governed return to work of an employee following FMLA leave), it would not be reasonable to conclude that the Postal Service willfully violated the FMLA by requiring Poteet to comply with the ELM provisions in order to return to work.
III. CONCLUSION
The credible evidence does not bear out Poteet's claims that the Postal Service willfully violated the FMLA by denying him FMLA leave and by failing to restore him to his employment. Therefore, an appropriate judgment will be entered for the Defendant and against Poteet.
As noted, the entry only addresses the contention of a willful violation of the FMLA. However, the court's findings, based on the evidence at trial, would have supported only a verdict in favor of the Postal Service on a claim of a negligent violation, too.