Employer Could Terminate Employee Who Took Leave But Failed To Submit Minimum Medical Documentation Required To Support Her Request For FMLA Leave

In Lewis v. United States of America, (— F.3d —-, C.A.9 (Alaska), May 26, 2011), the United States Court of Appeals for the Ninth Circuit considered whether an employer erred in terminating an employee who took leave but refused to provide sufficient medical documentation to support her request for leave pursuant to the Family Medical Leave Act. The court of appeals held the employer did not terminate the employee unlawfully because she failed to support her request for leave sufficiently.


Janet Lewis (“Lewis”) was director of a child development center on the Elmendorf Air Force Base. Lewis filed an equal employment opportunity complaint against her supervisors in which she alleged racial discrimination after another candidate was selected as the director of a new child development center. After Lewis filed her complaint, her relationship with her supervisors began to deteriorate.

Several years later, Lewis asked for 120 days of leave without pay pursuant to the Family Medical Leave Act (“FMLA”). The United States Air Force (“Air Force”) asked Lewis to provide medical certification to support her request for leave. Lewis then submitted the following three documents: (1) a prescription from her psychiatrist, Dr. Beverly Hendleman, (2) a letter from Dr. Hendleman dated November 21, 2006, and (3) a WH-380 form, which is a medical certification form created by the Department of Labor. Kathleen DeShasier (“DeShasier”), who was Lewis’s supervisor, informed Lewis the documents she had submitted in support of her request for leave were insufficient. However, Lewis refused to submit more information in support of her request for leave and informed DeShasier she had provided all of the information needed pursuant to the FMLA. DeShasier converted Lewis’s status to “absent without leave,” also known as “AWOL,” until the Air Force terminated Lewis’s employment in 2007.

Lewis appealed her termination to the Merit Systems Protection Board (“MSPB”). An administrative law judge “found by a preponderance of the evidence that Lewis was AWOL for the entire period and that the [Air Force] had acted within its discretion in removing Lewis from her position.” The judge also found Lewis failed to show that she was terminated for discriminatory or retaliatory reasons.
Lewis filed a lawsuit in federal district court alleging discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 and unlawful removal from employment pursuant to 5 U.S.C. § 7702. The district court granted summary judgment in favor of the Air Force on the unlawful removal claim. Lewis appealed from the district court’s decision on the unlawful removal claim.


The court of appeals affirmed the decision of the district court and found that the MSPB did not err in concluding that Lewis was in AWOL status during her absence from work because she failed to submit sufficient medical certification to support her request for leave under the FMLA. Therefore, Lewis failed to state a claim of unlawful removal from employment against the Air Force.

A federal employee may take up to twelve weeks of unpaid leave pursuant to the FMLA if the employer “has a ‘serious health condition that makes the employee unable to perform the functions of [his or her] position.'” The employer may require the employee to provide it with medical certification to support his or her request for leave under the FMLA. The FMLA provides that the “medical certification ‘shall be sufficient if it states [among other things] the appropriate medical facts within the knowledge of the health care provider regarding the condition.'”

The WH-380 form submitted by Lewis “states only that she was diagnosed with Post-Traumatic Stress Disorder and needed therapy, medical treatment, bed rest, two prescription medications, and 120 days off work.” The WH-380 form does not “provide a summary of the medical facts that support this diagnosis.” The FMLA at 5 U.S.C. § 6383(b)(3) requires the medical certification “to state ‘the appropriate medical facts.'” The WH-380 form submitted by Lewis “contains no explanation as to why Lewis was unable to perform her work duties and no discussion about whether additional treatments would be required for her condition.” Lewis refused to provide the Air Force with any further documentation. Therefore, Lewis’s “medical certification remained deficient.”

Lewis argued that any dispute about the adequacy of her medical certification can only be resolved by the Air Force requiring her to submit second or even third opinions. The court rejected this argument finding that “[t]he need for second or third opinions is triggered only when an employer ‘has reason to doubt the validity’ of the medical certification.” Here, it was the sufficiency of the medical documentation, not the validity of the medical documentation, that was in doubt. The court found that substantial evidence supports the MSPB’s finding that Lewis failed to provide the minimum information required by the FMLA.

The court also rejected Lewis’s argument that the Air Force failed to give her adequate time to provide the medical certification. Federal regulations required the Air Force to give Lewis at least 15 days to provide the certification and a total of 30 days if the 15-day requirement was not practicable. The court found Lewis failed to show that the 22 days given to her by the Air Force to submit the certification was not reasonable under the circumstances.


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