NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
WINFORD L. SULLIVAN,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
__________________________
2011-3220
__________________________
Petition for review of the Merit Systems Protection
Board in case no.DA0752100348-I-1.
___________________________
Decided: February 13, 2012
___________________________
WINFORD L. SULLIVAN, of Tulsa, Oklahoma, pro se.
JANE C. DEMPSEY, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With her on
the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and HAROLD D. LESTER,
JR., Assistant Director.
__________________________
SULLIVAN v. USPS 2
Before NEWMAN, LOURIE, and MOORE, Circuit Judges.
PER CURIAM.
Winford L. Sullivan appeals from the Merit Systems
Protection Board (Board) decision affirming the United
States Postal Service’s (USPS’s) removal action. Sullivan
v. U.S. Postal Serv., No. DA-0752-10-0348-I-1, slip op. at 9
(M.S.P.B. July 12, 2011). For the reasons discussed
below, we affirm.
BACKGROUND
Mr. Sullivan was employed by the USPS. In January
2009, he requested leave under the Family and Medical
Leave Act (FMLA). In support of his request, Mr.
Sullivan submitted a physician’s certification that he
suffered from frequent and painful attacks of gout in his
feet and ankles that would require his absence from work
for five to ten days every month in 2009. A USPS
committee, including the FMLA coordinator, reviewed the
certification and decided to exercise the agency’s right to
obtain a second medical opinion.
In February 2009, USPS sent Mr. Sullivan a letter
notifying him that he was required to obtain a second
medical evaluation to determine whether his condition
qualified as a serious health condition under the FMLA.
The letter instructed Mr. Sullivan when and where to
report for the examination and advised him that failure to
appear could result in the denial of his FMLA request.
Mr. Sullivan did not report for the examination.
In March 2009, USPS informed Mr. Sullivan that his
failure to appear was considered a failure to act in good
faith, but gave him an opportunity to explain his absence.
He claimed that he did not receive the letter notifying him
of the medical examination. The FMLA coordinator did
not find Mr. Sullivan’s reason credible because she had
3 SULLIVAN v. USPS
confirmed delivery of the letter. The FMLA coordinator
notified Mr. Sullivan that the conditional approval of his
FMLA leave pending the second medical examination had
been withdrawn, and that any further requests for FMLA
leave in 2009 would be denied.
Mr. Sullivan nonetheless submitted six to seven
additional FMLA leave requests in 2009 and
approximately fourteen FMLA leave requests in 2010. All
the requests were denied for failure to show entitlement
to FMLA leave. Mr. Sullivan was disciplined twice in
2009, including a letter of warning and seven-day
suspension for failure to maintain regular attendance and
a fourteen-day suspension for failure to comply with
agency leave regulations. From September 2009 through
February 2010, Mr. Sullivan accrued forty-four
unscheduled absences for which he did not follow agency
leave-requesting procedures. In March 2010, USPS
notified Mr. Sullivan of his proposed removal for failure to
comply with the agency’s leave regulations.
Mr. Sullivan appealed his removal to the Board. The
administrative judge (AJ) found that he failed to request
leave in advance and did not comply with the agency’s
leave-requesting procedures on forty-four occasions. Mr.
Sullivan testified that he never received the letter
regarding the second medical evaluation, but the AJ
found that this claim lacked credibility. The AJ stated
that Mr. Sullivan was on “clear notice” that unscheduled
absences could result in disciplinary action. The AJ also
found that the deciding official considered all relevant
mitigating factors and that the agency’s penalty was
reasonable and promoted the efficiency of the service. Mr.
Sullivan petitioned for review of the AJ’s decision. The
full Board denied Mr. Sullivan’s petition for review and he
now appeals to our court. We have jurisdiction under 28
U.S.C. § 1295(a)(9).
SULLIVAN v. USPS 4
DISCUSSION
We must affirm the Board’s decision unless it is “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial
evidence.” 5 U.S.C. § 7703(c).
Mr. Sullivan argues that the Board erred by affirming
the removal decision because it failed to evaluate whether
USPS followed required procedures regarding his FMLA
leave requests and adequately accounted for his gout. We
disagree. The Board thoroughly considered Mr. Sullivan’s
contention that he should have been granted FMLA leave
for his absences and found that USPS met its burden of
proving compliance. Under FMLA, an agency is
permitted to seek clarification of an employee’s medical
certification or require the employee to obtain a second or
third medical opinion at the agency’s expense. 29 C.F.R.
§ 825.307(a)-(c). After reviewing the evidence, including
testimony by the FMLA coordinator and by Mr. Sullivan’s
supervisor, the Board found that USPS notified Mr.
Sullivan that he was required to attend a second opinion
medical evaluation and that he failed to comply. The
Board further found that Mr. Sullivan’s testimony
regarding his absence was not credible.
As a result, we hold that substantial evidence
supports the Board’s determination that USPS met its
burden of proving compliance with FMLA, and thus that
USPS did not violate Mr. Sullivan’s rights by
withdrawing approval of FMLA leave for his gout
condition. Moreover, we hold that substantial evidence
supports the Board’s decision affirming Mr. Sullivan’s
removal based on his failure to comply with agency leave
regulations. Because Mr. Sullivan has not shown that the
5 SULLIVAN v. USPS
Board’s decision affirming his removal was arbitrary,
capricious, an abuse of discretion, or obtained without
procedures required by law, we affirm.
AFFIRMED
COSTS
No costs.