                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 03-4204
RODNEY HARRELL,
                                             Plaintiff-Appellant,
                               v.


UNITED STATES POSTAL SERVICE,
                                            Defendant-Appellee.
                        ____________
           Appeal from the United States District Court
                 for the Central District of Illinois.
         No. 02 C 2056—Michael P. McCuskey, Chief Judge.
                        ____________
     ARGUED SEPTEMBER 24, 2004—DECIDED JULY 19, 2005
                        ____________




  Before FLAUM, Chief Judge, and RIPPLE and WILLIAMS,
Circuit Judges.
  RIPPLE, Circuit Judge. Rodney Harrell filed this action
against his former employer, the United States Postal
Service (“USPS” or “Postal Service”), alleging violations of
the Family Medical Leave Act (“FMLA” or “Act”), 29 U.S.C.
§ 2601 et seq. The parties filed cross-motions for summary
judgment, and the district court granted summary judgment
in favor of the Postal Service. Mr. Harrell has appealed. For
the reasons set forth in the following opinion, we affirm in
2                                                No. 03-4204

part and reverse in part the judgment of the district court
and remand for further proceedings.


                              I
                     BACKGROUND
A. Facts
  Mr. Harrell began working for the Postal Service in 1984
as a clerk at the Decatur, Illinois post office. He was a mem-
ber of a collective bargaining unit represented by the
American Postal Workers Union, AFL-CIO (“APWU” or
“Union”), and he was covered by a national collective bar-
gaining agreement between the APWU and the Postal
Service known as the National Agreement.
  On February 2, 2000, Mr. Harrell felt ill and left work
early. On February 10, 2000, he submitted to the Postal
Service a medical form completed by his physician,
Dr. Robert Smith, which certified that his absence was due
to fatigue, stress, sleep disturbance and difficulty concen-
trating. Dr. Smith indicated that the health problems had
begun on February 2 and probably would last four weeks.
On February 23, 2000, Mr. Harrell submitted a second health
certification, in which Dr. Smith estimated that he would be
able to resume work on March 6, 2000.
  The Postal Service responded by a letter dated February
23, 2000, and advised Mr. Harrell that, according to postal
regulations, in order to return to work,
    (1) You must submit medical documentation outlining
    the nature and treatment of the illness or injury, the
    inclusive dates you were unable to work, and any medi-
    cines you are taking. This medical information is to be
    reviewed by the Postal Medical Officer.
No. 03-4204                                                   3

    (2) You may be required to be examined by the Postal
    Medical Officer after your documentation is reviewed.
    The bill for this release for work exam will be paid by
    the Postal Service.
R.27, Ex.A, Ex.3. Mr. Harrell maintains that he did not
receive this letter until March 7, 2000.
  Mr. Harrell attempted to return to his job on March 6.
However, Jane Cussins, the Decatur post office supervisor,
informed him that he had not been cleared to return to
work; at that time she explained the applicable postal
regulations to Mr. Harrell. In order to facilitate the clearance
process, Cussins made him an appointment for an examina-
tion by the USPS-contract physician for later that morning.
Mr. Harrell went to the physician’s office, but he refused to
consent to an examination because he believed that he
already had provided the Postal Service with sufficient
medical information to entitle him, under the FMLA, to
return to work. Mr. Harrell returned to Cussins’ office, and
she told him that she would fax the documentation submit-
ted by Mr. Harrell to the postal nurse for review.
  The postal nurse reviewed the February 10 and
February 23 certifications submitted by Mr. Harrell, and she
concluded that the information was insufficient to clear him
for duty. Specifically, the forms had no information about
continuing medications, restrictions on Mr. Harrell’s ability
to work or when he had been declared fit to return to work.
On March 10, 2000, the postal nurse called Mr. Harrell to
obtain his physician’s contact information; he refused to
provide the information and expressly stated that he did not
want her to contact his physician. Two weeks later, nonethe-
less, the postal nurse faxed a return-to-work form to Dr.
Smith’s office. The office refused to release any medical
information without Mr. Harrell’s consent.
4                                                No. 03-4204

  In the meantime, the Postal Service mailed Mr. Harrell a
letter dated March 9, 2000, reminding him that
    employees returning to duty after 21 days or more of
    absence due to illness or serious injury require medical
    certification. This certification must include evidence of
    your ability to return to work, with or without limita-
    tions. A medical officer or contract physician evaluates
    the medical report and makes a medical assessment as
    to your ability to return to work before you are allowed
    to return.
R.27, Ex.A, Ex.5. The letter also explained that the forms
prepared by Dr. Smith, which had explained Mr. Harrell’s
need for leave, were insufficient to clear him for duty
because they did not describe the nature of treatment he
received or list any medications he was taking. Finally, the
letter advised that, if he did not present appropriate docu-
mentation within five days, he would be considered absent
without leave and subject to discipline, including removal.
This letter was sent by both regular and certified mail.
  On March 15, 2000, having not received a reply from
Mr. Harrell, the Postal Service mailed him another letter
(also via regular and certified mail) which declared him ab-
sent without leave and scheduled a predisciplinary hearing
for March 17. The letter advised that failure to appear could
result in disciplinary action, including removal. On March
22, the Postal Service sent Mr. Harrell a notice of removal.
  On March 21, 2000, Mr. Harrell sent a letter to the Postal
Service. He maintained that he had not received the March
9 and March 15 warning letters until March 20. He also as-
serted that the medical documentation he had provided in
order to qualify his absence as FMLA leave was sufficient
by law to entitle him to return to work. Despite this belief,
Mr. Harrell returned to Dr. Smith and obtained a return-to-
No. 03-4204                                                5

work certification. The certification, dated March 23, 2000,
stated that Mr. Harrell was “fit to return to work without
restrictions.” R.27, Ex.A, Ex.7.
 The Postal Service responded to Mr. Harrell by letter on
March 31, 2000, which advised:
    You were notified in writing on February 23, 2000, that
    this medical documentation had to include the nature of
    treatment of your illness and any medicines you were
    taking. You have again failed to provide medical
    documentation adequate for the Postal Medical Officer
    to make a determination as to your ability to return to
    work.
      In conclusion, we want the opportunity to review
    medical documentation from your attending physician
    that includes all the required information. We have
    scheduled the following appointment for you to be ex-
    amined by the Postal contract physician.
R.22, Ex.6, Ex.10. Mr. Harrell again refused to provide
further information or to submit to an examination. By letter
dated April 27, 2000, the Postal Service terminated his
employment.


B. District Court Proceedings
  Mr. Harrell alleged that the Postal Service violated the
FMLA in five ways: (1) failing to restore him to work after
he presented a medical clearance; (2) requiring him to sub-
mit to a medical examination by a USPS-contract physician
prior to allowing him to return to work; (3) terminating his
employment because he took FMLA leave; (4) contacting his
physician without his consent; and (5) failing to provide
him with notice of the Postal Service’s return-to-work
requirements and the consequences of not complying with
6                                                    No. 03-4204

those requirements. The parties filed cross-motions for
summary judgment, and the district court granted summary
judgment in favor of the Postal Service.


                                1.
  With respect to Mr. Harrell’s first three claims, the Postal
Service asserted that the conditions it had placed on his re-
turn to work were permitted by the National Agreement
that incorporated by reference the postal handbooks and
manuals governing employees’ leave. Specifically, the Postal
Service contended that any return-to-work certification
requirements included in a collective bargaining agreement
take precedence over the FMLA’s return-to-work provisions
under 29 U.S.C. § 2614(a)(4), which provides that employers
may impose
    a uniformly applied practice or policy that requires each
    employee to receive certification from the health care
    provider of the employee that the employee is able to
    resume work, except that nothing in this paragraph shall
    supersede a valid State or local law or a collective bargaining
    agreement that governs the return to work of such employees.
Id. (emphasis added).
  Mr. Harrell contended that the Postal Service was pre-
cluded from arguing that the National Agreement incorpo-
rated the postal regulations governing return to work after
FMLA leave because the Postal Service previously made,
and lost, the same argument in a different case. The district
court, however, determined that United States v. Mendoza,
464 U.S. 154, 162 (1984), did not allow Mr. Harrell to invoke
the doctrine of collateral estoppel offensively against the
United States based on a litigation to which he was not a
party.
No. 03-4204                                                  7

  The district court then concluded that the postal hand-
books and manuals are part of the National Agreement. It
further determined that, because the postal regulations had
the force of a valid collective bargaining agreement, those
regulations, and not the FMLA’s provisions, controlled
Mr. Harrell’s right to reinstatement. In addition, the district
court found that the postal regulations justified the Postal
Service’s requirement that Mr. Harrell provide more de-
tailed medical documentation from his health care provider
or submit to a medical examination by a USPS-contract
physician. Moreover, the district court believed that such re-
quirements did not diminish any substantive right provided
by the FMLA. The court took the view that
    USPS employees always have the right guaranteed by
    the FMLA to be restored to their employment following
    FMLA leave. The agreement and the USPS regulations
    merely alter the procedure by which employees go
    about being restored.
       It is possible to imagine a situation in which altering
    the procedure attached to a certain substantive right
    would in essence impinge on or prohibit the exercise of
    that right. This case does not present such a situation,
    however, given the modest and seemingly simple certi-
    fication process the USPS imposes for employees who
    exceed 21 days of FMLA leave. Cussins was able to
    make Harrell an appointment with the contract doctor
    on the very morning he sought to return to work. Alter-
    natively, the [postal nurse] needed only two single-sided
    forms filled out by a doctor, noting Harrell’s condition,
    treatment, medication, and work restrictions. Neither
    process is so onerous that it effectively abrogates
    Harrell’s right of restoration under the FMLA.
R.41 at 9.
8                                               No. 03-4204

                             2.
  Next, the district court granted the Postal Service sum-
mary judgment on the claim that it had failed to provide
Mr. Harrell with adequate notice of the requirements for
returning to work and of the consequences for not meeting
those requirements. See 29 C.F.R. § 825.310(c). The district
court pointed to Mr. Harrell’s “deposition testimony in
which he admits that he was aware of the USPS regulations
concerning returning to work following an absence of more
than 21 days.” R.41 at 11. The court noted, moreover, that
Mr. Harrell was informed of the return-to-work require-
ments by the letters from the Postal Service and by Cussins,
to whom he had spoken when he attempted to return to
work.


                             3.
  Finally, the district court granted the Postal Service
summary judgment on Mr. Harrell’s claim that the Postal
Service had violated the FMLA by contacting his personal
physician without his consent. See 29 C.F.R. § 825.310(c).
Although the district court found that a violation had
occurred, it dismissed the claim because Mr. Harrell had
suffered no injury in that Dr. Smith’s office did not release
any information that contributed to his termination.




                             II
                      DISCUSSION
A. Standard of Review
  We review a district court’s grant or denial of summary
judgment de novo. Tutman v. WBBM-TV, Inc./CBS, Inc., 209
No. 03-4204                                                     9

F.3d 1044, 1048 (7th Cir. 2000). In doing so, we construe all
facts and reasonable inferences in the light most favorable
to the nonmoving party. Id. Summary judgment is proper if
“the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter
of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986).


B. Failure to Return to Work
  Congress enacted the FMLA in order to assist workers in
meeting the needs of their families and the demands of their
jobs. See Price v. City of Fort Wayne, 117 F.3d 1022, 1023 (7th
Cir. 1997). The statute responded to the perception that
    [p]rivate sector practices and government policies have
    failed to adequately respond to recent economic and so-
    cial changes that have intensified the tensions between
    work and family. This failure continues to impose a
    heavy burden on families, employees, employers and
    the broader society. [This legislation] provides a sensi-
    ble response to the growing conflict between work and
    family by establishing a right to unpaid family and
    medical leave for all workers covered under the act.
S. Rep. No. 103-3, at 4 (1993), reprinted in 1993 U.S.C.C.A.N.
2, 6 (“S. Rep. 103-3”). The FMLA makes available to eligible
employees up to twelve weeks of leave during any twelve-
month period for one or more of the following reasons: (1)
the birth of the employee’s child; (2) the placement of a
child with the employee for adoption or foster care; (3) the
care of the employee’s child, spouse or parent who has a
serious health condition; and (4) the inability of the em-
ployee himself to perform the functions of his position be-
10                                                    No. 03-4204

cause of a serious health condition. 29 U.S.C. § 2612(a)(1). At
the conclusion of a qualified-leave period, the employee is
entitled to return to his former position of employment, or
to an equivalent one, with the same terms and benefits. Id.
              1
§ 2614(a)(1); see also 29 C.F.R. § 825.214(a). To protect these
rights, the FMLA declares it “unlawful for any employer to
interfere with, restrain, or deny the exercise of or the attempt
to exercise, any right provided.” 29 U.S.C. § 2615(a)(1). In
this case, Mr. Harrell contends that the Postal Service
violated his rights under the FMLA by refusing to return
him to his position after his physician provided an unquali-
fied certification of his fitness to return to duty.
  An employee’s right to return to work after taking FMLA
leave is not unlimited. The Act seeks to accomplish its
purposes “in a manner that accommodates the legitimate
interests of employers.” 29 U.S.C. § 2601(b)(3); see also 29
C.F.R. § 825.101(b) (“The enactment of the FMLA was
predicated on two fundamental concerns—the needs of the
American workforce, and the development of high-per-


1
    Section 2614(a)(1) provides:
      (1) In general
      Except as provided in subsection (b) of this section, any
      eligible employee who takes leave under section 2612 of this
      title for the intended purpose of the leave shall be entitled,
      on return from such leave—
          (A) to be restored by the employer to the position of
          employment held by the employee when the leave
          commenced; or
          (B) to be restored to an equivalent position with equiva-
          lent employment benefits, pay, and other terms and
          conditions of employment.
29 U.S.C. § 2614(a)(1).
No. 03-4204                                                    11

formance organizations.”). An employee is not entitled to
“any right, benefit, or position of employment other than
any right, benefit, or position to which the employee would
have been entitled had the employee not taken the leave.”
29 U.S.C. § 2614(a)(3)(B); see also 29 C.F.R. § 825.216(a) (“An
employee has no greater right to reinstatement or to other
benefits and conditions of employment than if the employee
had been continuously employed during the FMLA leave
period.”). An employee returning from FMLA leave also is
not entitled to restoration if he cannot perform the essential
functions of the position or an equivalent posi-
     2
tion. 29 C.F.R. § 825.214(b).
  In addition, the Act permits an employer, as a condition
of restoring employees who take FMLA leave, to have a
policy that requires all such employees to obtain medical


2
  The Department of Labor regulations discuss an employee’s
right to restoration:
    (a) On return from FMLA leave, an employee is entitled to be
    returned to the same position the employee held when leave
    commenced, or to an equivalent position with equivalent
    benefits, pay, and other terms and conditions of employ-
    ment. An employee is entitled to such reinstatement even if
    the employee has been replaced or his or her position has
    been restructured to accommodate the employee’s absence.
    See also § 825.106(e) for the obligations of joint employers.
    (b) If the employee is unable to perform an essential function
    of the position because of a physical or mental condition,
    including the continuation of a serious health condition, the
    employee has no right to restoration to another position
    under the FMLA. However, the employer’s obligations may
    be governed by the Americans with Disabilities Act (ADA).
    See § 825.702.
29 C.F.R. § 825.214.
12                                                No. 03-4204

certification from their personal health care provider indi-
cating that the employee is able to resume work. 29 U.S.C.
§ 2614(a)(4). The Act provides that nothing in § 2614(a)(4)
“shall supersede a valid State or local law or a collective
bargaining agreement that governs the return to work of
employees.” Id. The interplay between the FMLA’s return-
to-work provisions and a collective bargaining agreement
that governs the return of employees who take leave due to
a serious health condition is discussed in the statute’s
accompanying regulations:
     (a) As a condition of restoring an employee whose
     FMLA leave was occasioned by the employee’s own
     serious health condition that made the employee unable
     to perform the employee’s job, an employer may have
     a uniformly-applied policy or practice that requires all
     similarly-situated employees (i.e., same occupation,
     same serious health condition) who take leave for such
     conditions to obtain and present certification from the
     employee’s health care provider that the employee is
     able to resume work.
     (b) If State or local law or the terms of a collective
     bargaining agreement govern an employee’s return to
     work, those provisions shall be applied. Similarly, re-
     quirements under the Americans with Disabilities Act
     (ADA) that any return-to-work physical be job-related
     and consistent with business necessity apply. . . .
     (c) An employer may seek fitness-for-duty certifica-
     tion only with regard to the particular health condition
     that caused the employee’s need for FMLA leave. The
     certification itself need only be a simple statement of an
     employee’s ability to return to work. A health care
     provider employed by the employer may contact the
     employee’s health care provider with the employee’s
     permission, for purposes of clarification of the em-
No. 03-4204                                                 13

    ployee’s fitness to return to work. No additional infor-
    mation may be acquired, and clarification may be re-
    quested only for the serious health condition for which
    FMLA leave was taken. The employer may not delay
    the employee’s return to work while contact with the
    health care provider is being made.
29 C.F.R. § 825.310(a)-(c).
  In the present case, the Postal Service maintains that it had
the right, under the FMLA, to require Mr. Harrell to provide
sufficient medical documentation from his health care
provider or to be cleared for duty by a USPS-contract
physician, as a condition of returning to work. In the Postal
Service’s view it appropriately employed, under 29 U.S.C.
§ 2614(a)(4), a uniform practice requiring employees to
provide a fitness-for-duty certification from their personal
health care provider; and, although the accompanying regu-
lations provide that this certification need only be a simple
statement of the employee’s ability to work, see 29 C.F.R.
§ 825.310(c), the FMLA’s certification provisions do not
supersede a valid collective bargaining agreement that
governs return to work for such employees, see 29 U.S.C.
§ 2614(a)(4); 29 C.F.R. § 825.310(b).
  Mr. Harrell challenges this theory on four grounds: (1)
collateral estoppel forecloses the Postal Service from ar-
guing that the terms of the National Agreement allow it to
limit postal employees’ right to return to work after FMLA
leave; (2) the postal handbooks and manuals are not part
of the National Agreement; (3) the postal return-to-work
provisions are invalid because they diminish a substantive
right afforded by the FMLA; and (4) the requirements
imposed by the Postal Service in this case contravened the
postal return-to-work provisions. We shall address these
issues in turn.
14                                                 No. 03-4204

  1. Collateral Estoppel
  Mr. Harrell first contends that the Postal Service is pre-
cluded from arguing that its handbooks and manuals are
negotiated parts of the National Agreement because it raised
and lost this argument in Routes v. Henderson, 58 F. Supp. 2d
959, 994 (S.D. Ind. 1999). The doctrine of collateral estoppel
provides that “once a court has decided an issue of fact or
law necessary to its judgment, that decision is conclusive in
a subsequent suit based on a different cause of action
involving a party to the prior litigation.” Mendoza, 464 U.S.
at 158. The “offensive use of collateral estoppel occurs when
a plaintiff seeks to foreclose a defendant from relitigating an
issue the defendant has previously litigated unsuccessfully
in another action against the same or a different party.” Id.
at 159 n.4. Mr. Harrell seeks to invoke nonmutual collateral
estoppel, which occurs when the plaintiff was a nonparty to
the prior lawsuit. Id. The district court determined that
applying this doctrine against the Postal Service was not
appropriate. We review a district court’s decision whether
to apply offensive collateral estoppel for an abuse of
discretion. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331
(1979).
  As the district court recognized, the Supreme Court has
established that nonmutual offensive collateral estoppel
does not extend to litigation against the United States.
Mendoza, 464 U.S. at 162. The United States differs from
private litigants in that its litigation is geographically broad
and often involves issues of national significance. Id. at 159-
60. Among other concerns expressed by the Court, preclud-
ing the United States from relitigating issues against differ-
ent parties would “thwart the development of important
questions of law by freezing the first final decision rendered
on a particular legal issue” and would “deprive th[e] Court
No. 03-4204                                                  15

of the benefit it receives from permitting several courts of
appeals to explore a difficult question before” it grants
certiorari. Id. at 160.
  Mr. Harrell submits that Mendoza does not apply in this
case because Congress has placed the Postal Service on the
same footing as a private litigant by authorizing it to “sue
and be sued.” 39 U.S.C. § 401. Mr. Harrell reads too much
into this waiver of immunity: That the Postal Service is
amenable to the judicial process does not “change the fact
that the party being sued is still the federal government.” In
re Young, 869 F.2d 158, 159 (2d Cir. 1989) (per curiam).
Indeed, Congress has provided that the Postal Service “is
part of the executive branch of government, that its employ-
ees are part of the federal civil service, and that it possesses
certain powers unique to governmental entities, such as the
authority to exercise the power of eminent domain in the
name of the United States.” Baker v. Runyon, 114 F.3d 668,
670-71 (7th Cir. 1997) (citing 39 U.S.C. §§ 201, 1001(b) &
401(9)). The “sue and be sued” provision, if anything,
indicates that “waiver of sovereign immunity is necessary
solely because the Postal Service is a government agency.”
Id. (citing Western Sec. Co. v. Derwinski, 937 F.2d 1276, 1280
(7th Cir. 1991) (stating that the “sue or be sued” clause “per-
mit[s] the suit to go forward notwithstanding that it is a suit
against a federal agency”)); see also United States Postal Serv.
v. Flamingo Indus. (USA) Ltd., 540 U.S. 736, 744 (2004)
(“While Congress waived the immunity of the Postal
Service, Congress did not strip it of its governmental
status.”). Accordingly, we conclude that the district court
did not abuse its discretion in concluding that the use of
collateral estoppel was not appropriate in this case, and,
thus, the Postal Service may argue that the National Agree-
ment incorporates the postal handbooks and manuals that
relate to employees’ return to work.
16                                                No. 03-4204

  2. Incorporation
  The premise underlying the Postal Service’s position in
this case is that the National Agreement incorporates by
reference the regulations in the postal handbooks and man-
uals that govern an employee’s return to work after taking
leave for a serious health condition. The Postal Service relies
upon Article 19 of the agreement, which reads:
     Those parts of all handbooks, manuals and published
     regulations of the Postal Service, that directly relate to
     wages, hours or working conditions, as they apply to
     employees covered by this Agreement, shall contain
     nothing that conflicts with this Agreement, and shall be
     continued in effect except that the Employer shall have
     the right to make changes that are not inconsistent with
     this Agreement and that are fair, reasonable, and equi-
     table. This includes, but is not limited to, the Postal
     Service Manual and the F-21, Timekeeper’s instructions.
R.27, Ex.I, Ex.1 at 123.
  Mr. Harrell argues that this paragraph is too vague and
general to incorporate the contents of the postal handbooks
and manuals into the collective bargaining agreement. He
also relies on the declaration of Greg Bell, the director of
industrial relations for the APWU, who attests that the
postal handbooks and manuals are not part of the National
Agreement because they were promulgated unilaterally by
the Postal Service, rather than through any collective bar-
gaining between the Postal Service and the APWU. See R.27,
Ex.I at ¶ 10.
  Other courts of appeals, by contrast, have concluded
in analogous contexts that the provisions contained in the
postal handbooks and manuals that affect working condi-
tions are incorporated by reference into the National
Agreement. See Woodman v. Runyon, 132 F.3d 1330, 1334
No. 03-4204                                                  17

(10th Cir. 1997) (noting that the postal manual governing
injury compensation was part of the National Agreement
because “Article 19 . . . incorporates those parts of all USPS
handbooks, manuals and published regulations which
directly relate to wages, hours, or working conditions”);
Kroll v. United States, 58 F.3d 1087, 1091 (6th Cir. 1995) (con-
cluding that Postal Service employee suggestion program
was incorporated into the National Agreement through the
postal manual because Article 19 “incorporates by reference
all parts of postal handbooks, manuals, and regulations that
‘directly relate to wages, hours, or working conditions’ ”).
  Indeed, the APWU itself has argued in other litigation that
Article 19 incorporates the postal handbooks and manuals
into the National Agreement. For instance, in United States
Postal Serv. v. American Postal Workers Union, 922 F.2d 256
(5th Cir. 1991), the Fifth Circuit noted that,
    [a]lthough article 19 states that nothing in the hand-
    books, manuals and regulations shall conflict with the
    Agreement, it does not specifically state that the Agree-
    ment incorporates these texts. Thomas A. Neill, Director
    of Industrial Relations for the APWU, whose duties
    include negotiation of the National Agreement and
    administration of the grievance procedure, states in his
    “declaration” that “[t]he handbooks and manuals are
    applied in labor relations between the APWU and USPS
    as part of the National Agreement.” These texts, Neill
    adds, are incorporated by reference into the Agreement
    and arbitrators routinely interpret them in deciding
    grievance arbitration cases. The Postal Service does not
    dispute Neill’s sworn declaration.
Id. at 259 n.2.
 In light of the fact that both parties to the National
Agreement have maintained previously that the postal
18                                                No. 03-4204

handbooks and manuals affecting working conditions are
incorporated by reference into that agreement, Mr. Harrell
stands in a weak position to assert otherwise. We agree with
our sister circuits that Article 19 is sufficient to incorporate
the postal handbooks and manuals relating to wages, hours
or working conditions into the National Agreement.
Certainly, the postal handbooks and manuals that govern an
employee’s return to work after an extended absence relate
to wages, hours or working conditions.


  3. Diminishment of FMLA Rights
   Mr. Harrell next contends that, even if the postal return-
to-work regulations are part of a valid collective bargaining
agreement, the Postal Service was not allowed to impose
any condition on his return that is more stringent than the
provisions of the FMLA, and, by doing so, the Postal Service
violated rights protected by the FMLA. Put another way,
Mr. Harrell asserts that, although the Postal Service was
allowed to have a uniform fitness certification policy under
29 U.S.C. § 2614(a)(4), this certification can be only a simple
statement from the employee’s health care provider that he
is able to work. See 29 C.F.R. § 825.310(c). Mr. Harrell sub-
mits that because Dr. Smith cleared him for work without
restrictions, the Postal Service was not authorized to impose
a more stringent certification requirement, even if such a
requirement was part of the governing collective bargaining
agreement. He contends that the Postal Service essentially
wants to control the determination of whether a postal
employee is fit to return to work.
  This argument presents the pivotal issue in this case:
whether the Postal Service can rely upon its own return-to-
work regulations, as incorporated into a valid collective bar-
gaining agreement, to impose requirements on employees
No. 03-4204                                                  19

that are more burdensome than what is required by the
return-to-work provisions of the FMLA. To resolve this
issue, we must consider the interplay between 29 U.S.C.
§ 2614 and § 2652. Section 2614(a)(4) permits employers to
impose, as a condition of returning to work,
    a uniformly applied practice or policy that requires each
    employee to receive certification from the health care
    provider of the employee that the employee is able to
    resume work, except that nothing in this paragraph
    shall supersede a valid State or local law or a collective
    bargaining agreement that governs the return to work
    of such employees.
29 U.S.C. § 2614(a)(4). The legislative history for this section
notes that the last phrase “clarifies that [§ 2614(a)(4)] was
not meant to supersede other valid State or local laws or
collective bargaining agreement that, for reasons such as
public health, might affect the medical certification required
for the return to work of an employee who had been on
medical leave.” S. Rep. 103-3 at 32. Although the regulations
accompanying § 2614(a)(4) provide that the certification
required by employers “need only be a simple statement of
an employee’s ability to return to work,” 29 C.F.R.
§ 825.310(c), the regulations also provide that, “if . . . the
terms of a collective bargaining agreement govern an
employee’s return to work, those provisions shall be
applied,” id. § 825.310(b).
  Section 2652, in turn, reads:
    (a) More protective
    Nothing in this Act or any amendment made by this Act
    shall be construed to diminish the obligation of
    an employer to comply with any collective bargaining
    agreement or any employment benefit program or plan
    that provides greater family or medical leave rights to
20                                                No. 03-4204

     employees than the rights established under this Act or
     any amendment made by this Act.
     (b) Less protective
     The rights established for employees under this Act or any
     amendment made by this Act shall not be diminished by any
     collective bargaining agreement or any employment benefit
     program or plan.
29 U.S.C. § 2652 (emphasis added). The legislative history to
this section adds that “[subsection (a)] specifies that em-
ployees must continue to comply with collective bargaining
agreements or employment benefit plans providing greater
benefits than the act. Conversely, [subsection (b)] makes
clear that rights under the act cannot be taken away to
collective bargaining or employer plans.” S. Rep. 103-3 at 38;
see also id. at 47 (explaining that under § 2652 nothing in the
FMLA “shall diminish an employer’s obligation under a
collective bargaining agreement or employment benefit plan
to provide greater leave rights nor may the rights provided
under this title be diminished by such agreement or plan”).
The legislative history also indicates that Congress intended
for the Act to
     accommodate[ ] the important societal interest in assist-
     ing families, by establishing a minimum labor standard
     for leave. The bill is based on the same principle as the
     child labor laws, the minimum wage, Social Security,
     the safety and health laws, the pension and welfare
     benefit laws, and other labor laws that establish mini-
     mum standards for employment.
Id. at 4.
 To give effect to the right to take leave under the FMLA,
Congress designed the statute to require employers to
No. 03-4204                                                     21

restore employees to work after taking such leave upon a
basic showing of being able to perform their duties, which
is done by a simple statement to that effect from one’s own
physician. The statute does indicate that the conditions by
which an employee returns to work can be other than those
contemplated by the statute and its implementing regula-
tions, if those conditions are set forth in a governing col-
lective bargaining agreement. However, any provision of a
collective bargaining agreement that replaces provisions of
the Act or its regulations must grant more or equal, not less,
protection to the employee. This reading of the statute
seems to us to be the only reasonable way to harmonize the
plain wording of the two sections. We therefore cannot
accept the suggestion in the Postal Service’s brief that the
FMLA permits an employer to follow the collective bargain-
ing agreement, even when that agreement imposes greater
burdens on employees’ return to work than provided under
the statute and regulations. Such a reading would give more
force to the general terms of § 2614 over the more particular
                  3
terms of § 2652.


3
   See Marrero v. Camden County Bd. of Soc. Servs., 164 F. Supp. 2d
455, 463 (D.N.J. 2001) (reading 29 U.S.C. § 2652(b) to invalidate
employer’s sick leave policy, and a governing collective bargain-
ing agreement, to the extent they diminished the rights created by
the FMLA, and stating that, “where an employer’s internal
policies conflict with the provisions of the FMLA, the FMLA con-
trols and the employee need only comply with the requirements
of the Act to invoke its protections”); Routes v. Henderson, 58
F. Supp. 2d 959, 994 (S.D. Ind. 1999) (“By expressly stating that a
CBA cannot diminish the employee’s FMLA rights, but can only
provide greater rights, Congress clarified the expected inter-
relationship between a valid CBA provision and § 2614(a)(4). If
                                                     (continued...)
22                                                     No. 03-4204

  We now turn to the application of this basic statutory
structure to the situation before us. The district court was of
the view that the statute permits the Postal Service to
impose stricter return-to-work conditions than those in the
FMLA so long as the conditions involve how an employee
                  4
returns to work. This distinction between substance and


3
  (...continued)
the designated leave provision of the CBA were read the way the
USPS asks, it would diminish the right of restoration established
in the FMLA by allowing the USPS to implement its more
restrictive return to work policies. Such a result would violate the
FMLA.”).
4
  To support its reading of 29 U.S.C. § 2614 and § 2652, the Postal
Service points to an opinion letter issued by the Department of
Labor on September 11, 2000, which states in part:
     As a condition of restoration, the FMLA permits an employer
     that has a uniformly-applied policy or practice to require all
     employees, or only certain employees, who take leave for
     their own serious health condition to provide a return-to-
     work certification from their health care provider. The
     certification need only be a simple statement of an em-
     ployee’s ability to work and must relate only to the particular
     health condition that caused the employee’s need for FMLA
     leave. Under this provision, an employer may not impose
     additional requirements. These fitness-for-duty certification
     provisions, however, do not supersede any valid State or
     local law or CBA that governs return to work for such
     employees. (See 29 U.S.C. § 2614(a)(4) and 29 C.F.R.
     § 825.310.) How FMLA’s certification provisions interact with
     the terms of a CBA that govern an employee’s reinstatement
     is specifically discussed in § 825.310(b) of the regulations. If
     the terms of the CBA, for instance, require a fitness-for-duty
     examination in addition to a return-to-work certification,
     then those terms apply with certain conditions. . . .
                                                      (continued...)
No. 03-4204                                                          23

procedure is not a useful instrument in determining
whether the conditions of reinstatement imposed by the
employer are more onerous than the requirements under the
FMLA. As evidenced by the statute and its accompanying
             5
regulations, it is clear that such a distinction is not compati-
ble with the statutory scheme. The true inquiry is whether
the employer’s requirements—whether procedural or
substantive—impose a greater burden on an employee than
the statute and accompanying regulations.
  The district court believed that a collective bargaining
agreement could impose more burdensome conditions on



4
    (...continued)
          If the . . . return-to-work medical certification and fitness-
       for-duty examination provisions in the [postal] handbook
       and manual are a part of the CBA as you have asked that we
       assume, then these provisions would apply instead of
       FMLA’s return-to-work certification requirements. If these
       provisions are not part of the CBA, then FMLA’s return-to-
       work certification requirements would apply.
R.27, Ex.K at 1-2; Appellee’s Br. at 26-27. Notably, the Department
of Labor’s opinion does not consider the potential conflict
between the language in 29 U.S.C. § 2614(a)(4) and 29 C.F.R.
§ 825.310(b) and the language in 29 U.S.C. § 2652, which is the
heart of the issue before us.
5
  The Department of Labor commentary to its Final Rule, 29
C.F.R. part 825, states in part:
      FMLA provides that it shall not supersede “any provision”
      of any State or local law that provides greater family or
      medical leave “rights” than under FMLA. There is no basis
      under this language or the legislative history to distinguish
      between procedural provisions that extend greater rights to
      employees and substantive provisions that provide more
      generous family or medical leave benefits to employees.
60 Fed. Reg. 2231 (1995).
24                                                No. 03-4204

employees. Indeed, as far as we can tell from its submis-
sions, the Postal Service is of the view that it can impose the
same fit-for-duty examination that it would require in a
situation not governed by the FMLA (when, for instance,
it questions whether an employee has the physical quali-
fication to continue working). However, the provisions
of the FMLA simply require an employer to rely on the
evaluation of the employee’s own health care provider;
the return-to-work certification need not contain specific
information regarding diagnosis, prognosis, treatment and
medication. The Postal Service regulations, as presented
to us in this litigation, impose a greater burden on the
employee and therefore cannot be employed, consistent
with § 2652, in implementing the return-to-work provisions
of the FMLA. It is important to note, however, that nothing
in the FMLA, or its implementing regulations, forbids a
more stringent fit-for-duty examination once the employee
has returned from FMLA leave, so long as any such exami-
nation is job-related and consistent with business necessity
                                                       6
in accordance with Americans with Disabilities Act guide-
lines. The FMLA and its regulations simply prevent an
employer, including the Postal Service, from denying a
return to work by an employee who has been absent on
FMLA leave and who presents, upon his return, the requisite
certification from his physician. If the employer has further
doubts about the employee’s ability to do his job, it is free to
address that issue after the employee is reinstated from
               7
FMLA leave.


6
    42 U.S.C. § 12101 et seq.
7
  Because we have determined that the Postal Service regulations
impose an impermissible burden on Mr. Harrell’s FMLA rights,
we need not reach his argument that the Postal Service in this
                                                  (continued...)
No. 03-4204                                                25


C. Contacting Employee’s Health Care Provider
  Despite Mr. Harrell’s express refusal to give his consent,
the postal nurse contacted his personal physician and re-
quested additional medical information. The district court
determined that this contact violated the FMLA, as pro-
vided in the statute’s accompanying regulations:
      If an employee submits a complete certification signed
      by the health care provider, the employer may not re-
      quest additional information from the employer’s health
      care provider. However, a health care provider repre-
      senting the employer may contact the employee’s health
      care provider, with the employee’s permission, for pur-
      poses of clarification and authenticity of the medical
      certification.
29 C.F.R. § 825.307(a).
  The rights established by the FMLA can be enforced
through civil actions. Section 2615 makes it “unlawful for
any employer to interfere with, restrain, or deny the exercise
of or the attempt to exercise, any right provided.” 29 U.S.C.
§ 2615(a)(1). An employer who violates this section shall be
“liable to any eligible employee affected” for compensatory
damages and “for such equitable relief as may be appropri-
ate, including employment, reinstatement, and promotion.”
                         8
Id. § 2617(a)(1).          The district court ruled



(...continued)
case violated its own regulations.
8
    The full text of § 2617(a)(1) reads:
      (a) Civil action by employees
                                                (continued...)
26                                                    No. 03-4204




(...continued)
        (1) Liability
             Any employer who violates section 2615 of this title
             shall be liable to any eligible employee affected—
             (A) for damages equal to—
                 (i) the amount of—
                        (I) any wages, salary, employment benefits,
                        or other compensation denied or lost to
                        such employee by reason of the violation;
                        or
                        (II) in a case in which wages, salary,
                        employment benefits, or other compensa-
                        tion have not been denied or lost to the
                        employee, any actual monetary losses sus-
                        tained by the employee as a direct result of
                        the violation, such as the cost of providing
                        care, up to a sum equal to 12 weeks of
                        wages or salary for the employee;
                 (ii) the interest on the amount described in
                 clause (i) calculated at the prevailing rate; and
                 (iii) an additional amount as liquidated dam-
                 ages equal to the sum of the amount described
                 in clause (i) and the interest described in clause
                 (ii), except that if an employer who has violated
                 section 2615 of this title proves to the satisfac-
                 tion of the court that the act or omission which
                 violated section 2615 of this title was in good
                 faith and that the employer had reasonable
                 grounds for believing that the act or omission
                 was not a violation of section 2615 of this title,
                 such court may, in the discretion of the court,
                 reduce the amount of the liability to the amount
                                                     (continued...)
No. 03-4204                                                      27

that Mr.Harrell was not entitled to any damages on this
claim because the violation caused him no injury:
Dr. Smith’s office refused to release any medical informa-
tion to the postal nurse absent Mr. Harrell’s consent. This
conclusion is correct. Our review of the record also found no
indication that any information obtained from the postal
nurse’s contact with Dr. Smith’s office in any way compro-
mised Mr. Harrell’s return-to-work status or was a factor in
the Postal Service’s decision to terminate his employment.
Section 2617 affords
    no relief unless the employee has been prejudiced by the
    violation: The employer is liable only for compensation
    and benefits lost “by reason of the violation,”
    § 2617(a)(1)(A)(i)(I), for other monetary losses sustained
    “as a direct result of the violation,” § 2617(a)(1)
    (A)(i)(II), and for “appropriate” equitable relief, includ-
    ing employment, reinstatement, and promotion,
    § 2617(a)(1)(B). The remedy is tailored to the harm
    suffered.
Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 88-90
       9
(2002). Because Mr. Harrell was not harmed by the unau



(...continued)
                  and interest determined under clauses (i) and
                  (ii), respectively; and
              (B) for such equitable relief as may be appropriate,
              including employment, reinstatement, and promo-
              tion.
29 U.S.C. § 2617(a)(1).
9
  See also Cianci v. Pettibone Corp., 152 F.3d 723, 728-29 (7th Cir.
1998) (holding that plaintiff had no claim under FMLA because
she had suffered no diminution in income and incurred no costs
                                                      (continued...)
28                                                    No. 03-4204

thorized contact with his physician, § 2617 provides him no
remedy, including equitable relief, and the district court
correctly granted the Postal Service summary judgment on
this claim.


D. Notice Requirements
  Finally, Mr. Harrell alleges that the Postal Service in-
terfered with his FMLA rights by failing to provide him
with timely and sufficient notice of the requirements for
returning to work and of the consequences for failing to
comply with those requirements. The Act’s implementing
regulations require that an employer must provide notice
“detailing the specific expectations and obligations of the
employee and explaining any consequences of a failure to
meet these obligations,” 29 C.F.R. § 825.301(b), “within a
reasonable time after notice of the need for leave is given by
the employee—within one or two business days if feasible,”
id. § 825.301(c). If the employer fails to provide adequate
and timely notice, it “may not take action against an
employee for failure to comply with any provision required
to be set forth in the notice.” Id. § 825.301(f).


9
   (...continued)
as a result of alleged violation); see also Cavin v. Honda of America
Mfg., Inc., 346 F.3d 713, 726 (6th Cir. 2003) (“Even when an em-
ployee proves that his employer violated § 2615, ‘§ 2617 provides
no relief unless the employee has been prejudiced by the viola-
tion’ ” (quoting Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81,
88-90 (2002)); Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183
F.3d 155, 162 (2d Cir. 1999) (concluding that the FMLA does not
give “an employee a right to sue the employer for failing to give
notice of the terms of the Act where the lack of notice had no
effect on the employee’s exercise of or attempt to exercise any
substantive right conferred by the Act”).
No. 03-4204                                                29

  The district court concluded that Mr. Harrell’s claim was
“belied by his deposition testimony in which he admits that
he was aware of the USPS regulations concerning returning
to work following an absence of more than 21 days.” R.41 at
11. The court found, moreover, that, upon realizing that Mr.
Harrell’s leave would exceed twenty-one days, Cussins
mailed to him a letter outlining in detail the return-to-work
certification requirements. In addition, Mr. Harrell discussed
his alternatives with Cussins when he first had attempted to
return to work.
  Mr. Harrell contends that the Postal Service was required
to inform him of his return-to-work obligations at the time
he requested FMLA leave, not at the time he attempted to
return to work. On February 2, and again on February 22,
2000, Mr. Harrell notified his supervisors that he might be
absent for up to four weeks. The Postal Service initially ad-
vised him of its return-to-work requirements by letter dated
February 23, 2000. Although, according to Mr. Harrell, he
did not receive this letter until March 7 (the day after he
attempted to return to work), nothing in the record suggests
that the Postal Service delayed in attempting to notify Mr.
Harrell of his obligations within a reasonable time after he
advised the Postal Service that he needed to take an ex-
tended absence.
  Furthermore, even assuming that the Postal Service failed
to provide adequate notice, Mr. Harrell was not harmed by
this violation. On March 6, 2000, when Mr. Harrell at-
tempted to return to work, he was told by Cussins what he
needed to do in order to be cleared for work. By letters
dated March 9 and March 15, 2000, the Postal Service reit-
erated to Mr. Harrell his return-to-work obligations and told
him that he would be subject to removal if he failed
to comply with those conditions. Then, when Mr. Harrell
responded by letter on March 21, the Postal Service sent him
another letter requesting an opportunity to review medical
30                                               No. 03-4204

documentation from his health care provider and schedul-
ing an appointment for him to be examined by a USPS-
contract physician. Mr. Harrell again refused this request.
The Postal Service did not terminate his employment until
April 27, 2000.
  This chronology demonstrates that Mr. Harrell had ample
notice of the Postal Service’s expectations and of his obli-
gations related to returning to work. We conclude that, on
this record, the district court’s grant of summary judgment
in favor of the Postal Service was appropriate on this claim.


                        Conclusion
  Accordingly, for the foregoing reasons, we affirm the
judgment of the district court insofar as it holds that the
doctrine of collateral estoppel is inapplicable to this claim.
We also affirm the court’s judgment insofar as it determined
that the provisions of the postal handbooks and manuals
affecting employees’ return to work after leave are incorpo-
rated into the National Agreement. We also affirm the
court’s judgment insofar as it holds that Mr. Harrell cannot
recover damages on the ground that the USPS contacted his
health care provider because he has not been able to show
that he was harmed by the unauthorized contact. We further
affirm the judgment of the district court insofar as it con-
cluded that Mr. Harrell was notified adequately of the
USPS’ requirements for returning to work. We reverse the
district court’s judgment insofar as it held that the USPS’
return-to-work regulations may impose a greater burden on
the employee than those imposed by the FMLA and its
regulations. The parties shall bear their own costs in this
court.
       AFFIRMED in part; REVERSED and REMANDED in part
No. 03-4204                                            31

A true Copy:
       Teste:

                      _____________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                USCA-02-C-0072—7-19-05
