NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

WINFORD L. SULLIVAN, 

Petitioner, 

v. 

UNITED STATES POSTAL SERVICE, 

Respondent. 

__________________________ 

2011-3220 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in case no.DA0752100348-I-1. 

___________________________ 

Decided: February 13, 2012 

___________________________ 

WINFORD L. SULLIVAN, of Tulsa, Oklahoma, pro se. 

JANE C. DEMPSEY, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of 

Justice, of Washington, DC, for respondent. With her on 

the brief were TONY WEST, Assistant Attorney General, 

JEANNE E. DAVIDSON, Director, and HAROLD D. LESTER,

JR., Assistant Director. 

__________________________ 
SULLIVAN v. USPS 2

Before NEWMAN, LOURIE, and MOORE, Circuit Judges. 

PER CURIAM. 

Winford L. Sullivan appeals from the Merit Systems 

Protection Board (Board) decision affirming the United 

States Postal Service’s (USPS’s) removal action. Sullivan 

v. U.S. Postal Serv., No. DA-0752-10-0348-I-1, slip op. at 9 

(M.S.P.B. July 12, 2011). For the reasons discussed 

below, we affirm. 

BACKGROUND

Mr. Sullivan was employed by the USPS. In January 

2009, he requested leave under the Family and Medical 

Leave Act (FMLA). In support of his request, Mr. 

Sullivan submitted a physician’s certification that he 

suffered from frequent and painful attacks of gout in his 

feet and ankles that would require his absence from work 

for five to ten days every month in 2009. A USPS 

committee, including the FMLA coordinator, reviewed the 

certification and decided to exercise the agency’s right to 

obtain a second medical opinion. 

In February 2009, USPS sent Mr. Sullivan a letter 

notifying him that he was required to obtain a second 

medical evaluation to determine whether his condition 

qualified as a serious health condition under the FMLA. 

The letter instructed Mr. Sullivan when and where to 

report for the examination and advised him that failure to 

appear could result in the denial of his FMLA request. 

Mr. Sullivan did not report for the examination. 

In March 2009, USPS informed Mr. Sullivan that his 

failure to appear was considered a failure to act in good 

faith, but gave him an opportunity to explain his absence. 

He claimed that he did not receive the letter notifying him 

of the medical examination. The FMLA coordinator did 

not find Mr. Sullivan’s reason credible because she had 
3 SULLIVAN v. USPS

confirmed delivery of the letter. The FMLA coordinator 

notified Mr. Sullivan that the conditional approval of his 

FMLA leave pending the second medical examination had 

been withdrawn, and that any further requests for FMLA 

leave in 2009 would be denied. 

Mr. Sullivan nonetheless submitted six to seven 

additional FMLA leave requests in 2009 and 

approximately fourteen FMLA leave requests in 2010. All 

the requests were denied for failure to show entitlement 

to FMLA leave. Mr. Sullivan was disciplined twice in 

2009, including a letter of warning and seven-day 

suspension for failure to maintain regular attendance and 

a fourteen-day suspension for failure to comply with 

agency leave regulations. From September 2009 through 

February 2010, Mr. Sullivan accrued forty-four 

unscheduled absences for which he did not follow agency 

leave-requesting procedures. In March 2010, USPS 

notified Mr. Sullivan of his proposed removal for failure to 

comply with the agency’s leave regulations. 

Mr. Sullivan appealed his removal to the Board. The 

administrative judge (AJ) found that he failed to request 

leave in advance and did not comply with the agency’s 

leave-requesting procedures on forty-four occasions. Mr. 

Sullivan testified that he never received the letter 

regarding the second medical evaluation, but the AJ 

found that this claim lacked credibility. The AJ stated 

that Mr. Sullivan was on “clear notice” that unscheduled 

absences could result in disciplinary action. The AJ also 

found that the deciding official considered all relevant 

mitigating factors and that the agency’s penalty was 

reasonable and promoted the efficiency of the service. Mr. 

Sullivan petitioned for review of the AJ’s decision. The 

full Board denied Mr. Sullivan’s petition for review and he 

now appeals to our court. We have jurisdiction under 28 

U.S.C. § 1295(a)(9). 
SULLIVAN v. USPS 4

DISCUSSION

We must affirm the Board’s decision unless 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.” 5 U.S.C. § 7703(c). 

Mr. Sullivan argues that the Board erred by affirming 

the removal decision because it failed to evaluate whether 

USPS followed required procedures regarding his FMLA 

leave requests and adequately accounted for his gout. We 

disagree. The Board thoroughly considered Mr. Sullivan’s 

contention that he should have been granted FMLA leave 

for his absences and found that USPS met its burden of 

proving compliance. Under FMLA, an agency is 

permitted to seek clarification of an employee’s medical 

certification or require the employee to obtain a second or 

third medical opinion at the agency’s expense. 29 C.F.R. 

§ 825.307(a)-(c). After reviewing the evidence, including 

testimony by the FMLA coordinator and by Mr. Sullivan’s 

supervisor, the Board found that USPS notified Mr. 

Sullivan that he was required to attend a second opinion 

medical evaluation and that he failed to comply. The 

Board further found that Mr. Sullivan’s testimony 

regarding his absence was not credible. 

As a result, we hold that substantial evidence 

supports the Board’s determination that USPS met its 

burden of proving compliance with FMLA, and thus that 

USPS did not violate Mr. Sullivan’s rights by 

withdrawing approval of FMLA leave for his gout 

condition. Moreover, we hold that substantial evidence 

supports the Board’s decision affirming Mr. Sullivan’s 

removal based on his failure to comply with agency leave 

regulations. Because Mr. Sullivan has not shown that the 
5 SULLIVAN v. USPS

Board’s decision affirming his removal was arbitrary, 

capricious, an abuse of discretion, or obtained without 

procedures required by law, we affirm. 

AFFIRMED 

COSTS

No costs.