Appeal from the United States District Court for the District of Alaska John W. Sedwick, District Judge, Presiding D.C. No. 3:06-cv-00053-JWS
The opinion of the court was delivered by: Alarcon, Circuit Judge:
Submitted May 5, 2011*fn1 Anchorage, Alaska
Before: Arthur L. Alarcon, Susan P. Graber, and Jay S. Bybee, Circuit Judges.
Janet Lewis appeals from the district court's denial of summary judgment affirming a decision of the Merit Systems Protection Board ("MSPB"), which in turn upheld a decision by the United States Air Force (the "Agency") to terminate her employment. We affirm.
Lewis was director of a child development center on the Elmendorf Air Force Base. In 2003, another candidate was selected over Lewis for a position as the director of a new child development facility. Lewis subsequently filed an equal employment opportunity complaint against her supervisors, alleging racial discrimination. Thereafter, her relationship with her supervisors began to deteriorate.
In 2006, Lewis requested 120 days of leave without pay pursuant to the Family Medical Leave Act ("FMLA"). The Agency requested a medical certification to support Lewis's FMLA request for leave. The Agency gave Lewis a medical certification form, created by the Department of Labor, called a WH-380. In support of her request for FMLA leave, Lewis submitted three documents: 1) a prescription from Dr. Beverly Hendleman, her psychiatrist; 2) a letter dated November 21, 2006, from Dr. Hendleman; and 3) a WH-380 form.
Lewis's supervisor, Kathleen DeShasier, told Lewis that the documents she had submitted were insufficient to support her request for FMLA leave. Lewis refused to submit more information. Lewis informed DeShasier that, according to Lewis's doctor, Lewis had provided all the information necessary under the FMLA. DeShasier converted Lewis to absent without leave ("AWOL") status until her removal from employment in 2007.
Lewis appealed her removal to the MSPB, and an administrative law judge ("ALJ") conducted an evidentiary hearing. The ALJ found by a preponderance of the evidence that Lewis was AWOL for the entire period and that the Agency had acted within its discretion in removing Lewis from her position with the Agency. The ALJ further found that Lewis failed to demonstrate that the basis for her removal was discriminatory or retaliatory. Because Lewis did not appeal that decision to the full board, the ALJ's decision became the final decision of the MSPB. 5 U.S.C. § 7701(e).
In this action in federal court, Lewis brought claims of discrimination and retaliation under Title VII of the Civil Rights Act of 1964 (codified at 42 U.S.C. § 2000e-16), and a claim of unlawful removal from employment pursuant to 5 U.S.C. § 7702. The district court granted summary judgment to the Agency on the unlawful removal claim and affirmed the decision of the MSPB. Although the Title VII claims remained pending before the district court, the court entered final ...