                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0155n.06

                                            No. 12-3845

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

                                                                                FILED
HUMILITY OF MARY HEALTH                           )                          Feb 12, 2013
PARTNERS,                                         )                   DEBORAH S. HUNT, Clerk
                                                  )
       Plaintiff-Appellant,                       )
                                                  )
v.                                                )    ON APPEAL FROM THE UNITED
                                                  )    STATES DISTRICT COURT FOR THE
TEAMSTERS LOCAL UNION NO. 377,                    )    NORTHERN DISTRICT OF OHIO
                                                  )
       Defendant-Appellee.                        )


       Before: MOORE, SUTTON and DONALD, Circuit Judges.


       SUTTON, Circuit Judge. Humility of Mary Health Partners, a consortium of three Ohio

hospitals, fired Jody Donoghue for excessive absences. Claiming that the Family and Medical Leave

Act excused each leave, Donoghue filed a grievance with her union, and the matter went to

arbitration. After concluding that Donoghue had been fired without just cause, the arbitrator ordered

the Health Center to reinstate her. The district court declined to disturb the arbitrator’s decision.

We affirm.


                                                  I.


       Jody Donoghue is a surgical technician, who suffers from Crohn’s disease and rheumatoid

arthritis. Between 2003 and 2009, Donoghue filed eight requests for leave under the FMLA, in each

instance invoking her illnesses. The Health Center granted each request.
No. 12-3845
Humility of Mary Health Partners v. Local 377 Teamsters

        In July 2009, Donoghue’s supervisor asked her to consider a different position, one that

might accommodate her condition more readily. Donoghue declined. In doing so, she submitted a

note that read, “Not necessary to use Intermittent FMLA while undergoing Humira therapy,” which

the Health Center took to mean she was finished asking for leave.


        The following year, Donoghue requested FMLA leave again. One of her supervisors,

confused by the request in light of the July note, asked the Health Center’s medical director, Dr. Jung

Kim, to review the request. After unsuccessfully attempting to contact Donoghue’s personal

physician, Kim recommended that the Health Center order an independent medical analysis. See 29

C.F.R. § 825.307(b). The doctor assigned this task conducted an examination of the paper record

(but did not examine Donoghue) and concluded that Donoghue was not eligible for FMLA leave.

A second independent doctor came to the same conclusion, again without examining Donoghue. See

id. § 825.307(c).


        Based on these findings, the Health Center fired Donoghue for excessive absenteeism. Her

union, Teamsters Local No. 377, filed a grievance, arguing that Donoghue had been fired without

just cause in violation of the collective bargaining agreement.


        The arbitrator considered the Health Center’s leave-of-absence policy and the FMLA

regulations, see R.6-3 at 24 (explaining that the FMLA regulations “shall prevail” any time

“expansion, clarification, or interpretation” of the hospitals’ policies is required), and concluded that

the Health Center lacked just cause for firing Donoghue. According to the arbitrator, the doctors


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whom Kim consulted lacked sufficient medical information to evaluate Donoghue and, more to the

point, never should have been consulted in the first place. The arbitrator ordered that Donoghue be

reinstated and awarded her back pay.


       The Health Center filed this lawsuit challenging the arbitrator’s decision. The district court

granted summary judgment to the union.


                                                 II.


       Final arbitration decisions receive extraordinary deference under the Federal Arbitration Act.

Otherwise, the essential point of arbitration—an inexpensive, speedy alternative to litigation—would

become a fiction. Unless the arbitrator “act[ed] outside his authority by resolving a dispute not

committed to arbitration,” engaged in fraud, maintained a conflict of interest or “otherwise act[ed]

dishonestly,” or failed to “arguably construe[] or apply[] the contract,” we must reject any request

for judicial intervention, even in the face of “serious, improvident or silly errors.” Mich. Family

Res., Inc. v. SEIU Local 517M, 475 F.3d 746, 753 (6th Cir. 2007) (en banc) (internal quotation marks

omitted); see also Major League Baseball Players Ass’n v. Garvey, 532 U.S. 504, 509 (2001);

United Paperworkers Int’l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 38 (1987).


       Trying to shoehorn itself into one of these grounds for review, the Health Center argues that

the arbitrator did not “arguably construe[]” the CBA. That is not an easy theory of relief. To meet

it, the award would need to be “so untethered to the terms of the agreement . . . that it would cast



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doubt on whether the arbitrator indeed was engaged in interpretation.” Mich. Family Res., 475 F.3d

at 753. Only the “most egregious awards” will cross this threshold. Id.


       This award falls short of the line. The arbitrator opened his opinion by mentioning the part

of the CBA he was charged with construing—Article 7—which says that “The Health Center shall

not discipline or discharge any employee without just cause.” R. 1-1 at 1. The arbitrator proceeded

to offer two reasons the Health Center lacked just cause, both grounded in the FMLA regulations that

the CBA, in conjunction with the Health Center’s formal leave-of-absence policy, expressly

incorporates. See R. 9-3 at 37 (charging arbitrators with “apply[ing] the Health Center’s policies”);

R. 6-3 at 24 (Health Center’s leave-of-absence policy, which states that FMLA regulations “shall

prevail” whenever “expansion, clarification, or interpretation of this policy may be required”).


       Not only did the arbitrator mention the relevant terms implicated by this dispute, but he also

applied them to this dispute. He explained that the two independent evaluations the Health Center

ordered were based on incomplete evidence because Kim failed to notify either doctor of

Donoghue’s six-year-old Crohn’s disease and rheumatoid arthritis diagnoses. See 29 C.F.R.

§ 825.307(b)(1), (c) (suggesting that doctors providing second or third opinions will require “all

relevant medical information” to “render a sufficient and complete” evaluation). The arbitrator thus

rejected the two medical opinions as justifications for denying the leave requests.


       More importantly, he found that the Health Center had no right to order independent medical

evaluations in the first place. Citing 29 C.F.R. § 825.307(b)–(c), the arbitrator explained that only


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employers “who ha[ve] reason to doubt the validity of a medical certification” may request second

or third opinions. Having accepted Donoghue’s diagnosis for six years, the arbitrator explained, the

Health Center had “no evidentiary basis” suddenly to become skeptical (or worse) about Donoghue’s

request. R. 1-1 at 13.


       It matters not whether we would have construed the relevant regulations and terms of the

CBA the same way. That is not what the parties bargained for when they contracted to hire an

independent arbitrator to resolve their disputes. All that matters is that the arbitrator did what they

engaged him to do—construe the relevant terms of the CBA and the FMLA regulations and apply

them to this dispute. See Mich. Family Res., 475 F.3d at 753.


       The Health Center separately argues that the arbitrator resolved a dispute not committed to

arbitration. Not true. The parties asked the arbitrator to determine whether the Health Center had

just cause for firing Donoghue, and that is the dispute the arbitrator resolved. Fighting this

conclusion, the Health Center invokes 29 U.S.C. § 2613(d)(2), which provides, “The opinion of the

third health care provider . . . shall be considered to be final and shall be binding on the employer

and the employee.” According to the Health Center, this provision shows that the arbitrator had to

follow the independent medical evaluations. But this argument misses the point of the arbitrator’s

analysis. If, as the arbitrator concluded was true, the employer never should have sought a second

and third medical opinion in the first place (in view of the failure to account for Donoghue’s

documented illnesses and prior unopposed leaves), it would not make sense to reject an employee’s

leave request based on the binding nature of a third opinion. To hold otherwise would anoint the

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third doctor—not the arbitrator—as the final arbiter of all FMLA decisions, in contravention of the

parties’ contract.


                                                III.


        For these reasons, we affirm.




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