In Kimbrough v. Dept. of Defense, No. DC-0752-06-0287-I-1, 2006 MSPB LEXIS 4379 (Aug. 1, 2006) the Board sustained the agency’s removal of the Kimbrough for AWOL and failure to follow established leave procedures. In so holding, the Board found that the Defense Contract Management Agency (DCMA) properly denied Kimbrough’s request for FMLA leave due to insufficient medical documentation. Kimbrough requested FMLA leave after sustaining a knee and back injury which apparently required surgery. In response to the DCMA’s request, he provided a medical Certificate of Health Care Provider signed by his family practice physician. DCMA found the medical certification insufficient, notified Kimbrough of the deficiencies and requested additional medical information. Kimbrough refused to provide the additional information. He was subsequently removed.
The Board initially noted that DCMA had the right to require Kimbrough to support his request for FMLA leave due to his own injury with medical certification. Pursuant to 5 USC 6381, such certification must include the probable duration of the condition, the appropriate medical facts within the knowledge of the health care provider regarding the condition, a statement that the employee is unable to perform the functions of the position, and information on the duration and frequency of any intermittent absences. The Board found that the certification provided by Kimbrough did not satisfy these minimum requirements. The Board found that the statement of “medical facts” was insufficient because it generically described fairly common conditions, and did not describe how those conditions prevented Kimbrough from performing his duties. A statement that the probable duration would “be determined after consultation with an orthopedic surgeon” was found insufficient. The Board similarly found deficient the certifications representation that the probably number and frequency of intermittent absences would be determined after consultation with an orthopedic surgeon.
The Board concluded that, because of such deficiencies, the DCMA reasonably requested Kimbrough to provide additional information regarding his medical condition, along with his rights and responsibilities. When he refused to provide additional information, the Board found that DCMA properly cited Kimbrough as AWOL and failure to follow leave procedures.
Comment: The decision may have inadvertently applied the wrong FMLA variant, although the result would not change. The Board determined the adequacy of the medical certification by reference to the requirements of Title II of the FMLA. Kimbrough, the Board noted, was in the “federal civilian service” of the military. Title I of the FMLA applies to civilians in the military departments, not Title II. 29 CFR 825.800 (definition of employee). Title II applies to civil service employees. Title II, like Title I, however, requires the same medical certification information at issue (e.g., medical facts, probable duration, frequency and duration of need for intermittent leave). Moreover, the Board in Kimbrough further found that, even if he should have been granted FMLA leave, it would have sustained the removal anyway based on the 3 months of AWOL not covered by the FMLA.
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