FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JANET D. LEWIS,
Plaintiff-Appellant, No. 10-35624
v.
D.C. No.
3:06-cv-00053-JWS
UNITED STATES OF AMERICA;
MICHAEL B. DONLEY, Secretary of OPINION
the United States Air Force,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Alaska
John W. Sedwick, District Judge, Presiding
Submitted May 5, 2011*
Anchorage, Alaska
Filed May 26, 2011
Before: Arthur L. Alarcón, Susan P. Graber, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Alarcón
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
7031
LEWIS v. UNITED STATES 7033
COUNSEL
Nicholas J. Kittleson, Kittleson Law Office, LLC, Anchorage,
Alaska, for the plaintiff-appellant.
7034 LEWIS v. UNITED STATES
Karen L. Loeffler, United States Attorney for the District of
Alaska, and E. Bryan Wilson, Assistant United States Attor-
ney, Anchorage, Alaska, for the defendants-appellees.
OPINION
ALARCÓN, Circuit Judge:
Janet Lewis appeals from the district court’s denial of sum-
mary judgment affirming a decision of the Merit Systems Pro-
tection Board (“MSPB”), which in turn upheld a decision by
the United States Air Force (the “Agency”) to terminate her
employment. We affirm.
I
Lewis was director of a child development center on the
Elmendorf Air Force Base. In 2003, another candidate was
selected over Lewis for a position as the director of a new
child development facility. Lewis subsequently filed an equal
employment opportunity complaint against her supervisors,
alleging racial discrimination. Thereafter, her relationship
with her supervisors began to deteriorate.
In 2006, Lewis requested 120 days of leave without pay
pursuant to the Family Medical Leave Act (“FMLA”). The
Agency requested a medical certification to support Lewis’s
FMLA request for leave. The Agency gave Lewis a medical
certification form, created by the Department of Labor, called
a WH-380. In support of her request for FMLA leave, Lewis
submitted three documents: 1) a prescription from Dr. Bev-
erly Hendleman, her psychiatrist; 2) a letter dated November
21, 2006, from Dr. Hendleman; and 3) a WH-380 form.
Lewis’s supervisor, Kathleen DeShasier, told Lewis that
the documents she had submitted were insufficient to support
LEWIS v. UNITED STATES 7035
her request for FMLA leave. Lewis refused to submit more
information. Lewis informed DeShasier that, according to
Lewis’s doctor, Lewis had provided all the information neces-
sary under the FMLA. DeShasier converted Lewis to absent
without leave (“AWOL”) status until her removal from
employment in 2007.
Lewis appealed her removal to the MSPB, and an adminis-
trative law judge (“ALJ”) conducted an evidentiary hearing.
The ALJ found by a preponderance of the evidence that Lewis
was AWOL for the entire period and that the Agency had
acted within its discretion in removing Lewis from her posi-
tion with the Agency. The ALJ further found that Lewis failed
to demonstrate that the basis for her removal was discrimina-
tory or retaliatory. Because Lewis did not appeal that decision
to the full board, the ALJ’s decision became the final decision
of the MSPB. 5 U.S.C. § 7701(e).
In this action in federal court, Lewis brought claims of dis-
crimination and retaliation under Title VII of the Civil Rights
Act of 1964 (codified at 42 U.S.C. § 2000e-16), and a claim
of unlawful removal from employment pursuant to 5 U.S.C.
§ 7702. The district court granted summary judgment to the
Agency on the unlawful removal claim and affirmed the deci-
sion of the MSPB. Although the Title VII claims remained
pending before the district court, the court entered final judg-
ment on the unlawful removal claim pursuant to Federal Rule
of Civil Procedure 54(b). Lewis timely appeals that judgment.
The district court had jurisdiction pursuant to 5 U.S.C.
§ 7703(b)(2). We have jurisdiction pursuant to 28 U.S.C.
§ 1291.
II
We review a district court’s order denying summary judg-
ment “de novo, viewing the agency’s decision from the same
position as the district court.” Lawrence v. Dep’t of Interior,
7036 LEWIS v. UNITED STATES
525 F.3d 916, 920 (9th Cir. 2008). We may reverse the deci-
sion of the MSPB only if it is arbitrary, capricious, contrary
to law, or not supported by substantial evidence. 5 U.S.C.
§ 7703(c).
III
A
[1] Under the FMLA, a federal employee is entitled to up
to twelve weeks of unpaid leave within a twelve-month period
if he or she has a “serious health condition that makes the
employee unable to perform the functions of the employee’s
position.” 5 U.S.C. § 6382(a)(1)(D). The employing agency
may require that the employee provide a medical certification
to support an FMLA request for leave. Id. § 6383(a). Relevant
here, the Act provides that a medical certification “shall be
sufficient if it states [among other things] the appropriate
medical facts within the knowledge of the health care pro-
vider regarding the condition.” Id. § 6383(b)(3); see also 5
C.F.R. § 630.1207(b)(3) (requiring that a medical certification
state “[t]he appropriate medical facts within the knowledge of
the health care provider regarding the serious health condi-
tion, including a general statement as to the incapacitation,
examination, or treatment that may be required by a health
care provider”).
Lewis challenges the MSPB’s finding that “none of the
documents submitted by [Lewis] to the agency in support of
her FMLA leave provide[s] sufficient medical facts to support
the conclusion that appellant is suffering from a serious health
condition.” We conclude that the MSPB’s finding is sup-
ported by substantial evidence.
[2] Lewis’s WH-380 form states only that she was diag-
nosed with Post-Traumatic Stress Disorder and needed ther-
apy, medical treatment, bed rest, two prescription
medications, and 120 days off work. The form, however, fails
LEWIS v. UNITED STATES 7037
to provide a summary of the medical facts that support this
diagnosis. See 5 U.S.C. § 6383(b)(3) (requiring the certifica-
tion to state “the appropriate medical facts”). The form con-
tains 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. When Lewis
refused to submit any further documentation, her medical cer-
tification remained deficient.
Lewis argues that her certification was sufficient because of
the MSPB’s discussion in Ellshoff v. Department of Interior,
76 M.S.P.R. 54 (M.S.P.B. 1997). Lewis is mistaken. In Ellsh-
off, the MSPB held that a doctor’s report can be a satisfactory
medical certification if it contains the minimum statutory
requirements under 5 U.S.C. § 6383(b). 76 M.S.P.R. at 77.
Because Lewis’s documentation failed to meet the minimum
statutory requirements, Ellshoff does not support her. Cf.
Novak v. MetroHealth Med. Ctr., 503 F.3d 572, 578-79 (6th
Cir. 2007) (holding that a medical certification form under a
related FMLA provision is insufficient where it lacks a state-
ment of “the appropriate medical facts within the healthcare
provider’s knowledge” to support the FMLA claim).
Relying on Dias v. Department of Veterans Affairs, 102
M.S.P.R. 53, 55-56 (M.S.P.B. 2006), Lewis next argues that
disputes as to the adequacy of an employee’s medical certifi-
cation can be resolved only by the employer’s requiring the
employee to submit second and even third opinions. We dis-
agree. The need for second or third opinions is triggered only
when an employer “has reason to doubt the validity” of the
medical certification. 5 U.S.C. § 6383(c)(1). DeShasier testi-
fied, and the ALJ credited, that she doubted the sufficiency,
not the validity, of the documentation.
[3] Substantial evidence supports the MSPB’s finding that
Lewis’s WH-380 form and the two doctors’ notes did not pro-
vide the minimum information required by 5 U.S.C.
§ 6383(b).
7038 LEWIS v. UNITED STATES
B
[4] Lewis also contends that the MSPB erred in finding
that the Agency did not violate her FMLA rights by request-
ing Lewis to provide medical documentation beyond the doc-
umentation required by the FMLA, even after she had
provided a WH-380 medical certification form. As discussed
above, Lewis submitted an incomplete WH-380 form and
refused to submit further documentation. Because Lewis
failed to submit the minimal mandated medical certification,
which requires less detailed information than the information
sought by the Agency, she cannot show any harm arising
from the Agency’s request for more documentation than is
required under the FMLA. See Burge v. Dep’t of Air Force,
82 M.S.P.R. 75, 85 (M.S.P.B. 1999).
C
[5] The ALJ properly rejected Lewis’s argument that the
Agency failed to give her adequate time to provide the medi-
cal certification. Regulations require that the Agency provide
an employee at least fifteen days and, if that period is “not
practicable,” that the Agency provide “a reasonable period of
time under the circumstances involved,” to a maximum of
thirty days. 5 C.F.R. § 630.1207(h). Here, the record reflects
that the Agency requested certification no later than Novem-
ber 20, 2006, and that, because of the unavailability of
Lewis’s doctor, Lewis was given until December 13, 2006, to
provide sufficient medical certification. Lewis has not pro-
vided any reason why this period of twenty-two days did not
meet the regulatory requirements that the Agency provide “a
reasonable period of time under the circumstances involved.”
Id.
D
[6] Lewis asserts that the MSPB erred in finding that she
had not complied with the requirements of the FMLA
LEWIS v. UNITED STATES 7039
because, she contends, she submitted adequate medical docu-
mentation to the human resources department in support of
her workers’ compensation claim. The record shows that
Lewis submitted a workers’ compensation claim to the
Agency with medical documents and a detailed diagnosis. But
Lewis did not deliver this documentation to DeShasier.
Instead, Lewis specifically requested that the human resources
department keep her medical records confidential and out of
the hands of DeShasier. Because of these facts, substantial
evidence supports the MSPB’s finding that “appellant refused
to provide any additional information or documentation”
aside from the two letters and the WH-380 form.
IV
The record demonstrates that the MSPB did not err in
determining that Lewis was in AWOL status during her
absence from work because she failed to submit sufficient
medical certification. Accordingly, the Agency acted within
its discretion in removing her from her position.
AFFIRMED.