Ericka L. Owens v. Department of the Navy

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3059
ERICKA L. OWENS,
Petitioner,
v.
DEPARTMENT OF THE NAVY,
Respondent.
Ericka L. Owens, of Kenosha, Wisconsin, pro se.
Anuj Vohra, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, for respondent. With him on the
brief were Jeanne E. Davidson, Director, and Deborah A. Bynum, Assistant Director.
Arbitrator’s decision

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NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3059
ERICKA L. OWENS,
Petitioner,
v.
DEPARTMENT OF THE NAVY,
Respondent.
Petition for review of an arbitrator’s decision in FMCS No. 07-60557 by Sinclair Kossoff.
__________________________
DECIDED: June 4, 2009
__________________________
Before LINN, DYK, and PROST, Circuit Judges.
PER CURIAM.
Petitioner Ericka Owens appeals an arbitration decision finding that she is not
entitled to back pay for the period between September 10, 2007 and September 26,
2008, during which time she was improperly terminated from her employment with the
Department of the Navy. We affirm the decision of the arbitrator.
I. BACKGROUND
Ms. Owens was employed in the Department of the Navy’s Drug Screening
Laboratory as a Physical Science Technician since 2003. Due to severe fibromyalgia,
Ms. Owens was granted twelve weeks of paid leave in 2006 and 2007 under the Family

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and Medical Paid Leave Act of 1993 (“FMLA”). Upon requests from her supervisors,
Ms. Owens provided medical documentation of her condition and inability to work.
On June 6, 2007, Ms. Owens’s supervisor sent her a letter informing her that her
FMLA leave had expired. The letter requested medical documentation by July 13,
2007, supporting any further leave and a medical opinion stating when she could return
to work and whether any special accommodations would be needed. The letter listed
specific questions for a doctor to answer. The letter also stated that that the Agency is
not obligated to approve leave without pay.
On July 12, 2007, Ms. Owens provided her employer a doctor’s note advising her
to stay “off work” from August 1, 2007 to September 1, 2007. The letter provided no
further assessment of her condition.
On July 31, 2007, Ms. Owens sent a personal letter to her supervisor explaining
that her condition was still serious, that she was on several medications, and that she
forwarded the request for medical documentation to her doctor. She explained that she
followed up with several phone calls to her doctor’s office, but the doctor had not
responded.
On August 8, 2007, Ms. Owens provided her employer a doctor’s note directing
her to refrain from work for four more weeks. The note indicated that after four weeks
she “would be able to return to work on a part time schedule”. The note also stated that
the part-time schedule would be reassessed every four weeks, indefinitely. Her
prognosis was described as “guarded.”
On August 29, 2007, the Navy sent Ms. Owens a proposed removal
memorandum notifying her that she would be removed from service on September 7,
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2007 for failure to follow leave procedures, particularly, failing to submit a doctor’s note
answering the questions from the June 29 notice and opining on whether and when she
can return to work and whether she will require special accommodations.
Ms. Owens was removed from employment on September 7, 2007. She
appealed the action through arbitration. The arbitrator found her medical excuse
adequate for leave, and that the employer failed to show just and sufficient cause for
her termination. The arbitrator ordered the employer to reinstate Ms. Owens’s position
upon her submission of medical clearance from a doctor. If Ms. Owens could not obtain
medical clearance, then the Navy was to reinstate her as an employee on unpaid
medical leave until her employment status was properly resolved. Ms. Owens
submitted medical clearance for unrestricted full-time employment on September 26,
2008. She was subsequently reinstated to her previous full-time position.
In addition to challenging her grounds for termination, Ms. Owens requested in
arbitration an award of back pay and a make whole order. The arbitrator denied this
request. The arbitrator found that under Ms. Owens’s union’s collective bargaining
agreement, an employee returning from sick leave must submit a doctor’s work release
clearing the employee to return to work with no limitations, or identifying specific
limitations. Since Ms. Owens did not submit such a note, the arbitrator found that she
was not cleared for work at any point during her termination and therefore did not qualify
for back pay covering that time.
II. DISCUSSION
A decision of an arbitrator is given the same standard of review as a decision of
the Merit Systems Protection Board (“MSPB”). 5 U.S.C. § 7121 (f). This court’s review
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of an appeal from a decision of the MSPB is limited by federal statutory law. See 5
U.S.C. § 7703(c). This court may reverse a decision of the MSPB only if 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.” Id.
Ms. Owens did not submit a proper medical work release until September 26,
2008 following the arbitrator’s order to do so. We agree with the arbitrator that the
August 8, 2007 doctor’s note does not qualify as a proper work release, because that
note was merely a guarded prediction that she would be capable of returning to work on
a part-time schedule in four weeks. The note stated that reassessments would be
needed. Ms. Owens provided no documentation of any reassessments.
Ms. Owens argues on appeal that her health insurance was terminated following
her removal, precluding her from obtaining the required medical clearance. This excuse
is not persuasive, however, because Ms. Owens was required to provide medical
clearance upon her return to work on September 10, 2007. There is no evidence that
Ms. Owens arrived at work on September 10 with medical clearance, and the evidence
of record supports the arbitrator’s conclusion that she was not cleared for work at this
time. Ms. Owens’s arguments to this court rely on the August 8 note as clearing her for
full-time work as of September 8. The August 8 note predicted when she would be able
to return to work part-time, in accordance with her supervisor’s June 6 request, but it did
not clear her for work on September 8.
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We affirm the decision of the arbitrator denying Ms. Owens back pay. The
arbitrator correctly found that Ms. Owens is not entitled to back pay because there is no
evidence that she was medically cleared to return to work.
COSTS
Each party shall bear its own costs.

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