Full opinion text
ORDER FOLLOWING BENCH TRIAL McKINNEY, District Judge. On November 16-18, 1998, the Court held a combination jury and bench trial on the claims of plaintiff, Thomas A. Routes (“Routes”), brought under the Rehabilitation Act (jury) and the Family and Medical Leave Act (Court). At the close of Routes’ case in chief, the defendant, William Henderson, Postmaster of the United States Postal Service, moved for a directed verdict on both claims. That motion was granted on the claims brought under the Rehabilitation Act, 29 U.S.C. § 794, but denied with respect to those brought under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2615, 2617. The bench trial then continued, with the parties presenting evidence on all issues relating to the claims under the FMLA. At the close of all the evidence, the defendant again moved for judgment as a matter of law, which motion was denied and post-trial briefing was ordered in lieu of closing arguments. That briefing concluded on January 5, 1999, and the Court, having heard the evidence, reviewed the exhibits, and considered the facts in light of the relevant laws, now renders its final decision regarding the matters presented at trial. I. FACTUAL FINDINGS 1. In 1979, plaintiff, Thomas A. Routes (“Routes”), began working for the United States Postal Service (“USPS”) at the Nashville, Indiana post office as a part-time flexible clerk. As such, he was responsible for sorting packages, letters, and flats of mail, as well as assisting customers who needed stamps or other postal services. On Sundays, he delivered express mail, and other days he completed deliveries or retrieved mail from other locations when necessary. In 1984, Bruce Gould (“Gould”), became the postmaster of the Nashville Post Office, and he was Routes’ immediate supervisor at all times relevant to this action. 2. There are no formal, written job descriptions for part-time flexible clerks. Part-time employees, described in the collective bargaining agreement (the “CBA”) between the USPS and the American Postal Workers Union (the “Union”), are those “assigned to regular schedules of less than forty (40) hours in a service week, or [who] shall be available to work flexible hours as assigned by the Employer during the course of a service week.” Ex. 42, CBA Art. 7.1(A). As Routes was a part-time “flexible” clerk, he was expected to be available to work flexible hours as assigned during the course of a service week. A service week is defined in the CBA as a “calendar week beginning at 12:01 a.m. Saturday and ending at 12 midnight the following Friday.” Id. Art. 8.2(A). 3. The USPS interpreted the CBA provisions regarding part-time flexible workers as establishing a requirement that these workers be available seven days a week, and Routes was often scheduled to work a portion of the day six or seven days a week. He understood that he was expected to be available for work at any time, but it was customary for him to get every third Sunday off. From August of 1994 to December 31, 1994, Routes worked a total of four weeks at seven days a week, or 25% of the time, and five weeks at six days a week, or 31%. Ex. A. The remaining Weeks were five days a week or less. Altogether Routes worked more than five days a service week during nine out of sixteen weeks, or 56% of the time. Id. From January 1, 1995 to August 30, 1995, he worked a total of sixteen weeks at seven days a week, or 44%, and fourteen weeks at six days, or 39%. Id. The other six weeks were five day weeks or less. This means that during this thirty-six week period of time Routes worked more than five days a service week during thirty weeks, or 83% of the time. Id. 4. Routes suffers from alcoholism, and during the time in question, he also suffered from depression and migraine headaches. In 1991, Routes was diagnosed with pancreatitis (caused by alcoholism) and was told by his doctor that he should stop drinking. See Ex. 3. Subsequently, he began seeing Dr. Frank Miller (“Dr.Miller”), who is a psychologist specializing in addictions. Dr. Miller treated Routes for his addictions from approximately September of 1992 to the Spring of 1996. That treatment ended when Dr. Miller thought he had done all he could for Routes and Routes appeared to be in “remission.” Routes tried to comply with his doctor’s instructions by not drinking, but he had a “number of relapses.” Ex. 49. According to Dr. Miller, Routes often felt overwhelmed by events in his life, including the fact that he could no longer drink as he had before due to the pancreatitis. Id. Dr. Miller thought these factors may have led to Routes’ depression. Id. 5. Gould became aware of Routes’ drinking problem when he suffered the pancreatitis attack in 1991, and testified that he knew Routes was a “party animal.” After Routes was absent without leave in December of 1993, for having tested positive for alcohol during a routine test in connection with his probation for an earlier reckless driving conviction, Gould requested that the USPS Labor Relations Department (“Labor Relations”) issue a letter of warning to Routes. In his request, Gould suggested that Routes be given information about the employee assistance program “pertaining to alcohol abuse.” Ex. 5. 6. In 1992 the USPS began requiring Express Mail delivery on Sundays, which meant an increase in hours for the part-time flexible clerks who started working a seven-day week. By late 1992, Routes began complaining of migraine headaches to Dr. Miller. Ex. 49, Progress Note for Nov. 18,1992. They occurred infrequently at first, but from December 1993 to December 1994, Routes experienced migraine headaches with increasing regularity to the point of almost daily occurrences. Ex. C. He complained to Gould about them in December of 1993, and he took time off from work for treatment in early 1994. See Exs. C, D. That treatment involved inpatient care with intravenous steroids, which was not successful, several diagnostic tests including a CAT scan, an MRI, sinus x-rays, EEG and a number of blood tests, as well as treatment with a number of anti-depressants and anti-inflammato-ries. Ex. D. 7. Despite the doctors’ efforts, Routes’ headaches continued and interfered with his ability to sleep and concentrate, causing feelings of sadness and hopelessness. Id. Finally, in November of 1994, Routes began seeing Michael Wenzler, M.D., a psychiatrist who diagnosed him as having symptoms consistent with a major depression. Ex. 17, Letter dated Sept. 8, 1995. Dr. Wenzler began treating Routes with an anti-depressant and he appeared to improve. Id. 8. During Thanksgiving of 1994, after nearly a year of unsuccessful treatment for his headaches, Routes heard about the Diamond Headache Clinic in Chicago, Illinois, from a relative. He visited the Clinic on December 8, 1994, and was evaluated for treatment, at which time the clinic scheduled him for inpatient treatment beginning on December 12,1994. 9. Routes requested sick leave for the period of time in which he would be hospitalized in Chicago, and he informed Gould that he needed the leave for inpatient treatment of his severe headaches. Routes did not specifically ask for FMLA leave for this absence. He was admitted to the Columbus Hospital on December 12, and discharged on December 19, 1994, in “stable and improved condition.” Ex. C. Routes took thirty-two and one-half hours of sick leave during the week of December 10-16, 1994, although he was credited for having worked seven and one-half hours that week. Ex. A. The following week, December 17-23, Routes took thirty-two hours of sick leave and was credited with three hours of work. Id. When he returned to work, on or about December 23, 1994, Routes’ schedule was reduced and he worked only twenty and one-half hours during six days of work the week of December 24-30. Id. It was similarly reduced the week of December 31, 1994 to January 6, 1995, during which Routes worked twenty-four hours on six days of work. Id. 10. When Routes asked Gould for sick leave to go to the hospital for his headaches, Gould was reluctant to approve it because it was the Christmas rush period, and he asked Routes why he had to get treatment then when he had been experiencing the headaches for a year. He also asked Routes to re-schedule his treatment for a less busy time at the post office. At trial, Gould admitted that he was upset with Routes for refusing to re-schedule the medical treatment to a less busy time of year. Although Gould made it clear to Routes that his absence would create a hardship, he nevertheless approved the leave because he believed he could not disallow sick leave, even during the holiday season. 11. Gould did not ask Routes for medical certification of a serious health condition, although he could have made that request under the FMLA. Because Routes had a physical or mental condition that involved inpatient care in a hospital, he did have a serious health condition as defined under the FMLA. Routes had worked for the USPS for more than fifteen years, and he had been employed for at least 1,250 hours of service during the previous twelve-month period. Consequently, the leave Routes took in December 1994 qualified as FMLA leave. 12. After Routes returned from his sick leave, he and Gould got into a loud discussion about the fact that he had taken off during the holiday season. Routes testified that Gould was very angry with him and threatened to “get rid of’ him. According to Gould, he was upset with Routes for taking leave for what he considered “elective medical care” during the busiest time of the year, and he told Routes he did not “need employees like that working for him.” Regardless of the words used, the context and subject matter of Gould’s statement led Routes to interpret it as a threat. Another employee, Julie Matlock, testified that she overheard Gould talking to Routes in a “loud and firm tone,” and saying “you’ve done this before, you’re undependable, you just'can’t do this.” She also heard Routes justifying his actions about taking the leave. Fearing he might be about to lose his job, Routes promised Gould he would not take any more sick leave. In light of all the evidence on this point, the Court finds that Routes’ interpretation of Gould’s meaning was both reasonable and consistent with the subsequent conduct of both men. 13. On or about Christmas Eve, 1994, Routes returned home appearing very different than he had when he had left for work in the morning. He told his wife that Gould had yelled at him and threatened to fire him and that he did not want to see any family on Christmas Day. Although he no longer suffered from severe headaches, Routes stayed in bed until Christmas afternoon and did not seem to enjoy any of the holiday. His wife, who testified at trial, reported that from that time on Routes just went to work and came home and went to bed. 14. From January 1 to August 30, 1995, Routes used only eight hours of sick leave, despite the fact that he broke his knee in July of 1995, during a time in which he was working about fifty hours a week. Ex. A. In contrast, from August 30 to December 31, 1994, Routes had taken a total of seventy-seven and one-half hours of sick leave. Id. This dramatic decrease in Routes’ use of sick leave is consistent with Routes’ testimony that he feared losing his job for having taken leave in December and had promised Gould he would no longer ask for any leave. 15. On or about December 27, 1994, Gould wrote to Labor Relations and asked them to issue a letter of warning to Routes for being “unavailable for work due to absences” for two weeks during the 1994 Christmas holidays. Ex. 8. A letter of warning is the first official step in the progressive discipline system established by the CBA between the USPS and the Union. Ex. 42, CBA at 109. In contrast, a disciplinary discussion is a private, informal discussion between the employee and supervisor when the employee has committed a minor offense. Id. at 108. Gould told Labor Relations in a subsequent letter that he had given Routes a disciplinary discussion for this absence. A discussion may be noted privately by either, but it is not to be included in the employee’s personnel file and is not to be “cited as an element of prior adverse record in any subsequent disciplinary action.” Id. at 109. The fact that Gould tried to initiate official discipline against Routes for taking sick leave during December is consistent with interpreting Gould’s statement as an expression of his intent to remove Routes from employment with the USPS. 16. In response to Gould’s request for disciplinary action, Labor Relations asked for additional documentation of the need for discipline. Ex. 9. Gould did not supply the missing information, and testified that he just decided not to pursue it, without explaining why. The letter requesting disciplinary action had listed all of the days Routes was absent due to illness in 1994 and noted whether the absence was scheduled or unscheduled. Ex. 8. The two weeks Routes took off in December 1994 were listed as a scheduled absence. Id. Although Gould’s action did not lead to official discipline of Routes for taking sick leave, it provided documentation of Gould’s attitude at that time toward Routes’ use of sick leave. 17. Also on December 27, 1994, the same day Gould asked Labor Relations for a letter of warning against Routes, Gould recorded a “disciplinary discussion” he had with Routes regarding a Consumer Service Card the post office had received in November, 1994. Ex. 10. The disciplinary discussion was in writing. Id. In it, Gould referred to Routes’ behavior as “rude and unprofessional,” and warned him that it would not be tolerated and that in the future Gould would not apologize to the customer for Routes. Id. Gould explained at trial that he wrote the disciplinary discussion and gave it to Routes when he returned from sick leave because Gould had to contact the customer while Routes was off work and apologize for the incident. The complaint form to which the letter refers, however, is dated November 8, 1994, and it reports that the customer was contacted on November 8, 1994, by Gould, and that he apologized to her and then had a discussion with the clerk. Ex. 11. Thus, the written disciplinary discussion given to Routes in December of 1994 was a second discipline for the incident, and the reason given by Gould for the delayed discipline is not supported by his own records. This conduct is consistent with an intention to communicate to Routes that his position was in jeopardy. 18. Nevertheless, Routes was given two weeks of light duty after his return from the December 1994 sick leave, without his needing to supply a medical certification. For the next six weeks after that, however, he was scheduled to work seven days a week. Ex. A. In fact, Gould began scheduling Routes to work seven-day weeks much more often than he had before Routes took sick leave during the holiday season. From September 1, to December 31, 1994, Routes had been scheduled to work a 7-day work week only 25% of the time. In contrast, from January 1, to August 30, 1995, 44% of his scheduled work weeks were for seven days. 19. Similarly, from September 1, to December 31, 1994, Routes was scheduled for a 6-day work week 31% of the time. After his sick leave, he was scheduled to work a six-day work week 39% of the time. In sum, before Routes took the sick leave Gould disapproved, he had been scheduled to work more than a five-day work week 56% of the time. After his leave, he was scheduled to work more than a five-day work week 83% of the time. This dramatic increase in the number of six or seven-day work weeks is consistent with Gould’s displeasure with Routes for taking the December 1994 leave. 20. In July of 1995, the Nashville Post Office changed locations and opened a “postal store,” which caused all employees to work longer hours. According to Gould, Routes worked more than fifty hours a week during this period, while other employees worked even longer hours. Gould described the process of moving the post office location as the most significant event he had ever been through as a postal employee. It was at this time that Routes broke his knee, but he took only eight hours of sick leave and still worked forty and three-quarters hours that week. Ex. A at 3. This behavior is consistent with Routes’ testimony that he feared he would lose his job if he took any more sick leave. 21. After he broke his knee and finished two more 7-day work weeks, at forty-eight and forty-nine hours each, Routes took two weeks of vacation from August 5, to August 19, 1995. Ex. A. When he returned, he worked another seven-day work week from August 19 to the 25th, and was scheduled for another one from August 26th to September 1, 1995. Id. However, he only worked five days of the second week, with his last day of work being August 30, 1995. By the evening of that last day of work, Routes’ depression had progressed to the point where his wife insisted that he get additional medical attention. She feared he was suicidal. 22. August 31, 1995, Routes was admitted to Bloomington Hospital under the care of Dr. Larry C. Lawrence, who signed a written notice that same day to let Gould know that Routes would be in the hospital for approximately one week. Ex. 13. The letter was postmarked August 31, 1995, and was received by Gould at the Nashville Post Office the next day, as evidenced by the fact that Gould noted on its envelope that he sent “Return to Work” documentation to Dr. Lawrence on September 1, 1995. Id. Routes’ wife also had contacted Gould in the afternoon of the day Routes was admitted to the hospital, and told him her husband was in the hospital and would be off work for a while. She did not specify the reason for Routes’ admission. 23. Because Routes had been scheduled to work at 6:00 in the morning of August 31 and he did not call before then, Gould sent a letter to Labor Relations that same day asking for official disciplinary action against him. Ex. 14. According to Gould’s letter, Routes “failed to report to work, he failed to notify this office as to the reason for his absence, and his telephone line was busy each of the six times [Gould] attempted to call him.... ” Id. Gould also wrote that Routes “received a disciplinary discussion for being unavailable for work due to illness in December, 1994,” and he asked that Routes be given “the maximum appropriate disciplinary action available.” Id. 24. Again, Labor Relations asked for additional documentation needed for such discipline, and Gould did not follow through with supplying it. At trial, Gould indicated that he had written the request for discipline before he knew that Routes had been hospitalized. Once he received that information, however, Gould did not withdraw his request for discipline. In fact, as late as November 22, 1995, Gould considered disciplinary action still pending against Routes for that absence, and he testified that he was keeping his “options open” with respect to Routes’ absent without leave (“AWOL”) status on that date. The USPS uses a form “3971” to report employee absences, and Gould completed one for August 31, 1995, showing Routes as AWOL that day. Ex. 38. The next day, September 1, 1995, Gould recorded Routes’ absence as approved FMLA sick leave. Id. 25. Shortly after learning that Routes had been hospitalized, Gould contacted Labor Relations by telephone about getting a fitness for duty evaluation (“FFDE”) of Routes before he could return to work. He made this inquiry even before he had received a letter from Routes’ treating psychiatrist explaining why Routes had been admitted to the hospital. At trial, Gould testified that he and Labor Relations decided to wait for documentation from Routes’ doctor before initiating the FFDE process. 26. On September 12, 1995, Gould received a letter from Dr. Michael Wenzler (“Dr.Wenzler”), a psychiatrist who had been treating Routes for depression. Ex. 17, Letter dated Sept. 8, 1995. Dr. Wen-zler reported that Routes had been under his care for treatment of major depression since November II, 1994, and that he had admitted Routes to' the hospital with a “deteriorating mood, suicidal ideas, a low energy level, difficulty sleeping, and a lack of motivation.” Id. The doctor also wrote that Routes appeared to have been under a “good deal of stress at work and had been working seven days a week.” Id. According to the letter, Routes was discharged from the hospital on September 8, 1995. Id. Dr. Wenzler wrote, “I suggested to Mr. Routes that: 1) he decrease his stress levels; 2) he should not return to work until September 18,1995; 3) when he returns to work, he should work a lighter schedule of five days per week (though he may return to full duties during those days); and 4) I will continue to frequently monitor his progress as an out-patient.” Id. Dr. Wenzler stated that he was unable to predict how long it would be before Routes was “sufficiently recovered” to work seven days a week. Id. This letter accompanied Form WH-380, Certification of Health Care Provider (“Form 380”), a form devised by the Secretary of Labor and used by the USPS to facilitate certifications of FMLA leaves or returns from leave. 27.The day he received the letter from Dr. Wenzler, Gould sent a memorandum to William E. Morrison (“Morrison”), the manager of Post Office Operations, requesting a FFDE of Routes. Ex. 18, Letter dated Sept. 12, 1995. The FFDE request stated that a disciplinary action was pending against Routes for being AWOL on August 31, 1995, and that he had not returned to work since that date. Id. It also referenced Dr. Wenzler’s letter, which was attached, and listed examples of Routes’ behavior prior to the leave that Gould believed warranted this action. Id. At trial, Gould testified that he relied on the pending disciplinary action against Routes for the August 31, 1995, absence to support this request for a FFDE. In the FFDE request, Gould wrote that “throughout Routes’ work history” he has exhibited “severe and unpredictable behavioral patterns,” and that during a discussion “several years ago” Routes “threatened to burn my house down.” Id. He also noted that Routes was arrested for “DUI” three years earlier and that he was cited for a “probation violation” a year and a half later for failing an alcohol test. Id. At trial, Gould admitted that the threat to burn his house down occurred five to ten years prior to the FFDE request, and Routes had received no discipline for the statement. 28. The FFDE request also stated that Routes had suffered severe migraine headaches for the last eighteen months, resulting in two one-week hospitalizations, and that he was still being treated for the headaches. Id. One of the hospitalizations, Gould emphasized, was during the Christmas rush in 1994, for which Routes was given a disciplinary discussion. Id. According to Gould, Routes was taking “what I would consider very strong medication from at least four different doctors at the same time.” Id. At trial, Gould admitted he did not know what medications Routes was taking, or how many doctors had prescribed it. 29. Elaborating on Routes’ workplace behavior, Gould wrote that “over the years” he has given Routes at least two disciplinary discussions, plus issued two letters of warning for “tempermental [sic] verbal explosions directed at fellow employees.” Id. The USPS could not provide the Court with any letters of warning for verbal explosions, and only one discussion was recorded that concerned Routes’ treatment of co-workers. Others in the office, who did not know why Routes was in the hospital, were reluctant to have Routes return to work. Id. Over the past several months, Gould stated, “Routes’ attitude, job performance, and motivation have depreciated markedly.” Id. Finally, “based on Routes’ history of unpredictable and violent outbursts” and based on information from his doctor, Gould said he considered Routes “to be a threat to this office and himself.” Id. Unless directed otherwise, he wrote, his intentions were “to not allow Routes to return to duty in this office until a FFD states that he is capable of performing all of his duties, to include working seven days per week.” Id. 30. Two days after his formal request for a FFDE Gould initiated an internal investigation of Routes by notifying the U.S. Postal Inspector on September 14, 1995, about an “alleged employee as-sauli/threat” involving Routes, giving an occurrence date of August 31,1994, at 9:00 a.m. Ex. 24, Report dated Oct. 17, 1995. The Postal Inspector’s report stated: “Postmaster Gould requested a fitness for duty (psychological examination) for clerk Thomas A. Routes. Gould notified Inspection Service as info. I have made contact. I am monitoring situation. No further action warranted at this time.” Id. It was signed by Pat Sheehan and dated October 17,1995. Id. 31. At trial, Gould testified he considered Routes “a threat” and that is why he contacted the Postal Inspector. He said Routes’ hospitalization for “suicidal tendencies” confirmed for him that Routes was capable of physical violence. From the report and letter, it was clear that Inspector Sheehan had investigated Routes and learned he had no FBI or Local police records, no post office disciplinary records, and no “write-ups” relating to violence. Ex. 24. Although Gould did not specifically recall getting the Inspector’s report, he admitted at trial that it contained the same advice he had gotten from Inspector Sheehan by telephone. As of October 17, 1995, Gould was aware of the fact that the Postal Inspector was not continuing to investigate Routes and had found no evidence of any violent conduct at work or elsewhere. 32.Routes was admitted to Fairbanks Hospital in Indianapolis on September 15, 1995, for treatment of alcoholism. He had been discharged from the Bloomington Hospital on September 8, with a projected return to work date of September 18, 1995. Before he could return to work, however, Routes underwent this second hospitalization. His doctor at Fairbanks, Dr. Timothy Kelly (“Dr.Kelly”), notified Gould about the hospital admission on September 17, 1995, and stated that the length of stay was “unknown” at that time. Ex. 20. In a subsequent response to the Form 380 sent by Gould, Dr. Kelly indicated that Routes would be incapacitated by his condition from approximately September 15 to October 15, 1995. Ex. 21. Dr. Kelly gave the reason for Routes’ treatment as “detox & rehab.” Id. The completed Form 380 was received by Gould on September 22, 1995. Approximately one week later, on September 30, 1995, Routes was discharged from the hospital and released by Dr. Kelly to return to work on October 9, 1995. Ex. 22. The release contained no restrictions on Routes’ ability to work. Id. Gould received the release from Dr. Kelly sometime during the first week of October, 1995. 33. At about the same time, Dr. Wen-zler wrote a second letter regarding Routes’ condition, dated October 16, 1995, that was received by Gould shortly thereafter. This letter explained more fully the reasons for Routes’ second hospitalization. After referring to Routes’ August 31, to September 8, 1995, hospitalization for depression, Dr. Wenzler reported that Routes’s treatment was “complicated by continuing, covert alcoholism.” Ex. 23. Routes had denied his continued alcohol consumption to his doctors, his wife, and his AA sponsor, but after his release from the Bloomington Hospital, his wife and AA sponsor confronted him and he confessed. He then agreed to in-patient treatment at Fairbanks, where he was hospitalized from September 15 to September 30, 1995. Id. 34. Dr. Wenzler wrote that he saw Routes on October 5, 1995, at which time Routes denied any more drinking or feelings of depression. Ex. 23. Routes reported that he was participating in Intensive OuU-Patient (“IOP”) addictions treatment at a mental health center, continuing to see his addictions therapist, Dr. Miller, attending AA meetings regularly, and that he would continue working with Dr. Wenzler on his depression. Id. According to Dr. Wenzler, Routes’ “prognosis will be improved a great deal if he works only five days a week. Two days off will give him the time and energy to continue to work his alcoholism recovery program more fully and to recover from depression.” Id. Again, Dr. Wenzler concluded by stating that he could not predict when Routes would be able to return to a seven-day work week. Id. At trial, Gould testified that he did not consider Dr. Wenzler’s letter a restriction to hght duty — -just a letter from the doctor returning Routes to work. He also agreed that Routes had been released to return to work by Dr. Kelly with no restrictions. Later, Gould testified that “there was quite a bit of confusion over [Routes’] restrictions.” 35. In response to Routes’ request to return to work, Gould told him he would not let him return until he could work seven days a week. Gould testified that a FFDE under these circumstances was “automatic,” because Routes had wanted to work only five days a week. Routes testified, however, that he told Gould he would work seven days a week if it was necessary, but that he preferred not to. Gould has not contradicted this testimony, and has admitted that Routes never told him he could not work a seven day week. In its decision granting a directed verdict to the USPS on Routes’ Rehabihtation Act claim, the Court found that Routes had failed to prove he was disabled, in part because he specificahy testified that he was able to work or be available for work up to seven days a week. At trial, Routes’ estranged wife testified that she overheard a message from Gould in early October 1995 to the effect that he would never let Routes return to the post office. Gould, on the other hand, stated that he told Routes there was no “hght duty position” at the Nashville Post Office, by which Gould meant a part-time flexible position limited to five days a week, and there would never be one. Regardless of the language used, Gould’s message that he did not want Routes to return to work at the post office was clearly communicated to Routes. 36.After receiving the second letter from Dr. Wenzler and Routes’ request to return to work, and in spite of the full release by Dr. Kelly, Gould wrote again to the USPS Medical Officer, Dr. Ranjan Patel (“Dr.Patel”), and asked for a FFDE. Ex. 25. The second request was dated October 19, 1995, (two days after Postal Inspector Sheehan’s report), and it contained enumerated items that Gould wanted the FFDE report to address. Id. In it, Gould referred to Routes’ “extended absence for treatment for suicidal tendencies and drug/alcohol rehabihtation,” and noted his prior conversation with Dr. Patel, in which they had decided not to initiate the FFDE until Routes asked to return to work. Id. 37. In the second FFDE request, Gould wrote that over the years Routes has “unpredictably exploded verbally” at Gould and other employees in “fits of rage.” Ex. 25. Gould noted that he had taken “disciplinary action many times,” but “given the broad time frame” Routes had “never gotten more than a letter of warning.” Id. He then asked Dr. Patel about the “probability of his tempermental fits continuing.” Id. Gould also asked whether Routes’ “rages [were] related to his alcohol/drug problem.” Id. Although Dr. Wenzler had referred only to an alcohol problem, Gould began describing the problem as “drug/alcohol” or “drug-related” in this second request for a FFDE. At trial, Gould could not produce any documentation that he had taken “disciplinary action many times” for Routes’ “fits of rage.” Instead, he referred to three unspecific and undocumented incidents of Routes yelling at co-workers, two letters of warning for similar conduct that could not be found, a five to ten year old threat to burn Gould’s house down, and a disciplinary discussion in 1990, all of which “made a history” of violent outbursts in the workplace, in Gould’s mind. 38. Next, Gould noted that Routes claimed his depression was related to stress from his job, and observed that in the past eight months Routes had worked fewer hours than anyone else. Ex. 25. Gould wanted to know what parts of his work caused Routes stress, and speculated that it was the computerized equipment. If this were true, Gould stated, there would be no light duty work available for Routes at the Nashville Post Office. Id. 39. Gould reported in this FFDE request that he understood from one of Routes’ friends that Routes and his wife blamed Gould’s December 1994 “disciplinary discussion” for Routes’ absence during the holiday rush, for “aggravating his depression.” Ex. 25. Then he questioned “where he stands” with Routes, given his “violent temper, his suicidal tendencies and his blaming me for part of his personal problems,” and expressed concern about Routes’ “feelings of resentment, hatred, etc.” Gould wanted the FFDE report to tell him whether Routes’ “suicidal tendencies and drug/alcohol problems are resolved.” Id. He also asked whether Routes had expressed any particular method of committing suicide. Id. 40. Finally, Gould noted that he had just finished a “Violence in the Workplace” seminar the day before, and he asked for guidance from Dr. Patel, an EAP representative, the Postal Inspector and Labor Relations about “how to quickly take disciplinary action if needed or remove the employee from the office.” Ex. 25. According to Gould, the USPS has always had a policy of “zero tolerance” of violence in the workplace, although posting the policy as he did in August of 1995 was new. See Ex. 12. He also testified that the violence seminar taught him how to recognize threats of violence in the workplace. He concluded this second request for a FFDE by expressing his concern about Routes’ “mental stability,” and the safety of himself and others in the office, “most of whom [Routes] has verbally attacked at one time or another.” Ex. 25. 41. At trial, Gould said the reason he sent the second FFDE request was that Routes had contacted him to return to work and he had not received any FFDE report yet. However, Gould also testified that he and Dr. Patel had agreed to wait until Routes actually tried to return to work before starting the FFDE process. Consequently, it would not have been reasonable to expect to have a FFDE report at the time Routes asked to return. Gould’s expressed reason for the second FFDE request appears not to have been the real reason. In a letter dated October 23, 1995, Gould informed Routes that he had been scheduled for a psychiatric FFDE with Dr. Frank Countryman (“Dr. Countryman”) on October 30, 1995. Ex. 26. 42. Dr. Patel, the USPS Medical Officer for the area, wrote Dr. Countryman on October 24, 1995, and informed him about the need for Routes to be evaluated by a psychiatrist. The letter stated that the examination was requested by Routes’ manager to determine if Routes could “perform the duties of a part-time flexible clerk, without harm to himself or others.” Ex. 27. She also wrote that Routes had been absent from work for treatment of “suicidal tendencies and drug/alcohol rehabilitation” and that he had been under the care of Dr. Wenzler who had released Routes to return to work. Id. According to the letter, Dr. Patel sent Dr. Countryman all of the “pertinent information” including a “job description” and the two letters from Gould requesting the FFDE. She stated that the Nashville Postmaster “is reluctant to let him come back to work because of his past violent and threatening behavior with his supervisors and coworkers.” Id. 43. The USPS uses a form letter to authorize all mental FFDE evaluations, which contains specific guidelines for the type of information needed for a complete psychiatric evaluation. Ex. 28. Specifically, the doctor is to report on the patient’s social and family history, history of the present illness, “including a detailed description of the specific work factors contributing to the present emotional or mental condition,” and a mental status examination, complete with pertinent clinical findings and results of any tests. Id. The report must also include a diagnosis according to the DSM IV, and a “well reasoned opinion as to the factors of employment that caused, aggravated, precipitated or accelerated the presenting condition.” Id. The doctor is to include a prognosis with a return to work date and an opinion regarding recommended treatment. Id. Finally, the report should address the “duty status” of the employee, with a description of any limitations in the employee’s ability to work, and the doctor’s findings with regard to whether the employee is capable of violence or presents a danger to self or others. Id. Dr. Patel signed a copy of this authorization letter on October 25, 1995, at which time it was sent to Dr. Countryman. 44. After meeting with Routes on October 30, 1995, Dr. Countryman reported to Dr. Patel that Routes was defensive and angry at first, and then friendlier toward the end of their hour together. Ex. H, Letter dated November 1, 1995. Dr. Countryman wrote that Routes has been “extremely depressed in the past” and is still “moderately depressed,” as evidenced by occasional crying spells. Id. He found no psychomotor retardation or psychotic thought processes, and opined that Routes’ “insight and judgment appear to have been only fair.” Id. It was Dr. Countryman’s recommendation that they order psychological testing of Routes, and contact Routes’ treating psychiatrist and psychologist to get more complete reports than he had received from Dr. Wenzler. Id. The psychological testing was scheduled for December • 1, 1995, with Dr. Christine Ward (“Dr.Ward”), but there is no evidence that Dr. Countryman contacted either Dr. Wenzler or Dr. Miller. 45. Unsatisfied with the progress of the FFDE process, Gould wrote to Labor Relations on November 22, 1995, approximately one month after his second request for a FFDE, and asked for Routes’ termination. Ex. 29. His request came even before Gould had been told that Routes was not fit for duty, and despite the fact Routes’ doctors had released him. Id. This request for termination was made while Routes was still on FMLA leave. The reasons given by Gould for the termination included that Routes was AWOL on August 31, 1995, and he had not worked since then because he was on FMLA leave. Id. According to Gould, the “120-day period” would be up on December 29, 1995, at which time Routes would have no sick or annual leave remaining. Id. His letter was intended to “get the process started to have this employee separated as soon as possible after his 120-day period expires.” Id. 46. At trial, Gould said that Routes was not protected from discipline for his absence on August 31, 1995, because he “had not advised me that he had been admitted on the 31st.” The parties’ stipulated exhibits, however, provide evidence that Gould was well aware of that fact, and Gould even testified that Routes’ wife called him the afternoon of August 31st to say Routes was hospitalized for an illness and would be out for a week or two. The Court finds that Gould was advised on August 31, 1995, that Routes had been admitted to the hospital for a serious health condition. At trial, Gould admitted that he was using the fact that Routes was “AWOL” on August 31, 1995, to justify the need to terminate Routes. 47. Gould’s letter requesting Routes’ termination also cited Gould’s interpretation of the reasons Routes had been absent — treatment for “alcoholism/drug abuse” and “major depression resulting in suicidal tendencies.” Ex. 29. He wrote that Routes “has a history of violent outbursts in the workplace,” he has been given a psychiatric FFDE, and that Routes’ psychiatrist said part of his depression is “job related.” Id. Further, Gould wrote that Routes was released for work “under restrictions that he could not work over five days per week for an indefinite period of time (light duty) due to job stress.” Id. According to Gould, there were no light duty positions in the Nashville Post Office. Id. Then he mentioned that he had not yet heard from Dr. Patel, but he was aware that Routes was scheduled for another evaluation by a psychiatrist retained by the postal service. Gould’s feelings were that “at about $600 per session, the postal service could spend a considerable amount of money with inconclusive information” about Routes being able to return without risk to himself or others. Id. 48. At trial, Gould said he thought the USPS should terminate Routes rather than spend any more money on inconclusive psychological evaluations.. He described this letter as an attempt to get the process started to have Routes terminated as soon as possible. In the letter to Labor Relations, Gould stated that “Postal Inspector Pat Sheehan is also involved,” in Routes’ “ease because of our concern over the employee’s violent history.” Id. This statement was made a little more than one month after Gould was told by Inspector Sheehan that Routes had no discernible violent history and that the Postal Inspector did not think “further investigative attention” was warranted. Ex. 24. 49. Despite Gould’s efforts to get Routes terminated, on or about December 1, 1995, Dr. Ward administered three psychological tests on Routes — the MMPI-2, the Rorschach test, and the Thematic Ap-perception Test (“TAT”). Ex. G, Letter dated December 1, 1995. She also interviewed Routes for about , fifteen minutes, during which time she gathered some background information about him and his current problems. In response to her question about why he was there for evaluation, Routes told her “I guess they think I’m dangerous.” Id. Routes speculated that the reason his employer thought he was dangerous was that “he had been feeling depressed and suicidal” and he assumed that “if work thinks I’m suicidal, then I’m dangerous.” Id. 50. The results of the three tests were reported as follows. The Rorschach responses were “typical of individuals prone to acting out — either against themselves or toward others,” and some of Routes’ “precepts” involved “morbid content, high emotionality, and injury.” Ex. G. Dr. Ward observed that Routes seemed aware of the inappropriateness of some of his responses, but that he went ahead and reported them anyway. Id. The TAT responses provided by Routes were “typical of individuals who are depressed, worried, suicidal.” Id. She found his MMPI-2 results valid, but said Routes tended to minimize his problems. Id. Although she included the profile of Routes’ results, Dr. Ward found noteworthy “the large number of clinical scales in the critical range for psychopathology,” explaining that “individuals with this profile are extremely depressed.” Id. 51. The MMPI-2 test revealed that Routes’ energy level was “extremely low,” and Dr. Ward thought this was consistent with an individual who is self-critical and self-defeating. Id. “While there may be some real security threats, these individuals often show denial and covering over. There is often a quickness to rationalize and explain things away.” Id. She found that he had “considerable potential for impulse control problems” Id. 52. In her summation of the test results, Dr. Ward stated that “given the low base rate of acting-out behaviors, making a highly accurate prediction is virtually impossible.” Id. Routes’ psychological tests indicated a “man who is highly depressed, suicidal, and worried.” She noted, however, that there were a “number of positive indicators for his recovery, including his participation in the IOP program, medications, the AA meetings, and his outpatient psychiatrist Dr. Wenzler.” In her opinion, Routes should continue with all of these treatment services until he was better stabilized. Id. 53. Dr. Countryman’s final report to Dr. Patel indicated that the results of Dr. Ward’s psychological testing “verify that Mr. Routes is definitely depressed.” Ex. 46, Letter dated Dec. 7, 1995. Although noting the “numerous positive indicators for recovery” mentioned by Dr. Ward, Dr. Countryman stated he did not think Routes was “sufficiently recovered to return to work.” Id. He did not, however, elaborate on that opinion. Then he said, “[bjecause of the long-term chronicity and severity of his problems, I think it is possible that he should be retired.” Id. He wrote that with Routes working “seven days a week as he does in his present job he has no opportunity to regroup his defenses.” Id. Dr. Countryman concluded by saying that he thought “medical retirement” would be in Routes’ best interest. Id. 54. Upon receiving Dr. Ward’s test results and Dr. Countryman’s final report, Dr. Patel reviewed them and concluded that Routes was not fit for duty. Ex. I. She conveyed that opinion in a three-sentence note to Gould dated December 11, 1995. Id. In it she wrote that the “doctor indicated that Mr. Routes does have an ongoing psychiatric problem, which has not adequately responded to treatment. Therefore, he is not fit for duty at this time. His prognosis is poor and the doctor is recommending disability retirement.” Id. Dr. Patel’s note was received at the Nashville Post Office on December 12, 1995. Id. 55. Dr. Wenzler provided Routes with another release dated December 14, 1995, which Gould testified he did not receive. Ex. 44. It stated that Routes was “released to return to work on 10/9/95,” and was signed by Dr. Wenzler. Id. On December 15, 1995, Morrison, as manager of Post Office Operations, wrote the Human Resources Manager requesting that she have Labor Relations “issue the appropriate letter to Mr. Routes to advise him of his options.” Ex. 30. In his note, Morrison specifically referred to information from Dr. Patel that he had attached to his request. Id. On December 28, 1995, Morrison wrote to Dr. Patel and asked her to provide him with “whatever medical documentation” he could have on Routes because a Union grievance had been filed. Ex. 31. According to Morrison, the Union grievance stated that Routes had been cleared by his doctor to return to work, and Gould had told Morrison that Dr. Patel had determined Routes was unfit to return to duty. Id. Therefore, it appears that Morrison only had Dr. Patel’s short note when he wrote and asked that an option letter be issued to Routes. The evidence shows that Morrison also had received Gould’s letter requesting a FFDE and had discussed Routes’ condition with Gould and perhaps with Dr. Patel. 56. In a letter dated January 22, 1996, prepared by Labor Relations and signed by Gould, Routes was told that he had been found unfit to return to duty as a part-time flexible clerk. Ex. 34. Routes was given three options: he could retire, resign or request permanent light duty. Id. The permanent light duty request would have to be accompanied by a medical certificate from the United States Public Health Service, or a physician designated by the postmaster, “giving full evidence of the physical condition of the employee, the need for reassignment, and the ability of the employee to perform other duties.” Id. A certificate from Routes’ personal physician would not be acceptable. Id. At the time, Routes was not suffering from a physical condition and he had already been informed that there were no light duty positions at the Nashville Post Office. 57. Routes wrote a letter in response to the option letter and stated that he was released by his own doctor and by the Fairbanks Hospital doctor to return to work on October 9, 1995. Therefore, he did not consider the three options applicable to him. Ex. 35. He expressed his desire “to return to work as soon as possible in accordance with [his] release.” Id. He further stated that since he was pursuing a grievance through the Union, he had been advised by the Union not to respond to any of the options. Id. Finally, he asked again for copies of the medical evaluations by Dr. Ward and Dr. Countryman. Id. This letter was received by Labor Relations on January 30, 1996. Id. 58. From December 4, 1995, and throughout all of 1996, the Form 3971’s filed for Routes were completed by Gould with a designation that Routes was on leave without pay (“LWOP”). Ex. 38. LWOP is allowed for certain specified reasons stated in the USPS employee and labor relations manual (“ELM”). Ex. 41. The reason applicable to Routes’ situation is for “personal illness or injury.” Id., ELM, ¶ 514.4(D)(4). It also provides that an employee may be separated from employment for being on LWOP for more than one year due to illness, “unless there is cause to expect recovery and return within a reasonable time after the end of 1 year.” Id. 59. On or about December 30, 1996, a note was sent to Gould from the Human Resources Department, stating that “Per Labor Relations you need to initiate a removal for Routes.” Ex. 32. On January 7,1997, Gould submitted a request through Morrison to remove Routes from employment with the USPS. Ex. 36. It explained that Routes’ last day of work was August 31, 1995, and that he had been on LWOP status in excess of one year, which “violates section 514.4(D)(4) of the ELM, thereby providing for removal.” Id. It did not mention whether there was cause to expect Routes’ recovery in a reasonable period of time. If Morrison concurred with Gould, he was asked to forward the request to Labor Relations. Id. 60. Morrison concurred with the decision to remove Routes and submitted the request to Labor Relations on January 16, 1997. Ex. 33. A memorandum “Notice of Removal” dated January 17, 1997, was sent to Routes, informing him that he would be removed from the Postal Service on February 24, 1997. Ex. 37. The notice stated that Routes was being removed for “being on LWOP status in excess of one year.” Id. It further stated that Routes was sent for a FFDE on December 7, 1995, “which stated you could not perform the duties of your position. On January 22, 1996, you were sent a letter giving you options toward your position. You have not responded.” Id. The Notice of Removal was signed by Gould and Morrison. Id. 61. This action against the USPS was filed by Routes on March 25, 1997, approximately one month following the official date of his removal from the USPS. II. CONCLUSIONS OF LAW A. Family & Medical Leave Act 1. The Family and Medical Leave Act (“FMLA”) was passed in 1993 to “help men and women balance the conflicting demands of work and personal life.” See Price v. City of Fort Wayne, 117 F.3d 1022, 1024 (7th Cir.1997). “It does so by recognizing that there will be times in a person’s life when that person is incapable of performing [his or her] work duties for medical reasons.” Id. The statute includes specific findings about the conditions prompting passage of the act, one of which is that “there is inadequate job security for employees who have serious health conditions that prevent them from working for temporary periods.” 29 U.S.C. § 2601(a)(4). The stated purposes for the legislation are “to balance the demands of the workplace with the needs of families” and “to entitle employees to take reasonable leave for medical reasons.” 29 U.S.C. § 2601(b)(1), (2). The latter purpose relates to the facts in this case. 2. The relevant portions of the statute include: (a)(1) Entitlement to Leave ... an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12 month period for one or more of the following: (D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee. (b) Leave taken intermittently leave under paragraph (C) or (D) of subsection (a)(1) ... may be taken intermittently or on a reduced leave schedule when medically necessary. 29 U.S.C. § 2612. Employers may require that a request for leave “be supported by a certification issued by the health care provider” of the employee that lists the date the “serious health condition” commenced, its probable duration, and the “appropriate medical facts.” 29 U.S.C. § 2613. 3. Once the employee has recovered sufficiently to return from the FMLA leave, he or she “shall be entitled” to be restored to his or her former position, or an “equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.” 29 U.S.C. § 2614(a). To enjoy this right, the employee must have been both eligible for FMLA leave, and have taken a leave for the “intended purpose of the leave.” Id. Nothing, however, in § 2614 “shall be construed to entitle any restored employee to ... (B) any right, benefit, or position of employment other than the 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). 4. Unlike anti-discrimination statutes, such as Title VII, the Age Discrimination in Employment Act, and the Americans with Disabilities Act, these provisions of the FMLA primarily grant substantive rights to eligible employees that create entitlements the employer must honor. See Diaz v. FoH Wayne Foundry, 131 F.3d 711, 712 (7th Cir.1997). They require an employer to accommodate particular individual circumstances, in contrast to discrimination cases, in which the employer is prohibited from treating one employee worse than another because of something the statute makes irrelevant. Id. Laws like the FMLA set “substantive floors,” or minimum standards for employment. Id.; see also Hodgens v. General Dynamics Corp., 144 F.3d 151, 159, n. 2 (1th Cir.1998) (noting FMLA based on same principle as child labor, minimum wage, and other laws setting minimum standards). Routes’ claim that the Postal Service failed to restore him to his former or an equivalent position at the end of his leave comes under this portion of the FMLA. 5. The FMLA is also designed to accomplish its purposes “in a manner that accommodates the legitimate interests of employers.” 29 U.S.C. § 2601(b)(3). One way it does so is when it allows an employer to condition an employee’s right of restoration on: a uniformly applied practice or policy that requires each such 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). This passage grants an employer the right to set some conditions governing an employee’s return to work from an illness, which right does not supersede a valid collective bargaining agreement that governs such returns to work. An example of a “uniformly applied practice” is when an employer states that any employee absent for a specified number of days must have the required certification before returning to work. 6. The FMLA also contains “anti-discrimination” components, one of which makes it unlawful “for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful under this sub-chapter.” 29 U.S.C. § 2615(a)(2). Courts have interpreted this portion of the statute to prohibit employers from discriminating against their employees for exercising their rights under the substantive portions of the statute. See Hodgens, 144 F.3d at 160. Similarly, the final regulations implementing the FMLA make it clear that an employer may not discriminate against an employee who has used FMLA leave. 29 C.F.R. § 825.220(c); Hodgens, 144 F.3d at 160. Nor may employers use the taking of FMLA leave as a “negative factor” in employment actions, such as hiring, promotions, or disciplinary actions. Id. Routes’ claims regarding Gould’s reaction to the leave in December 1994, including his refusal to grant FMLA leave for August 31, 1995, and the wording of the letters asking for a FFDE of Routes, must be analyzed under this portion of the FMLA. 7. The other anti-discrimination component makes it unlawful for an employer to “interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.” 29 U.S.C. § 2615(a)(2). Employers may not defend against a claim of interference with substantive rights on grounds that it treats all employees that way without discriminating. Hodgens, 144 F.3d at 159. 8. In sum, the FMLA contains “two categories of broad protections for employees.” King v. Preferred Technical Grp., 166 F.3d 887, 891 (7th Cir.1999). First, it contains “prescriptive protections that are expressed as substantive statutory rights,” the violation of which need only be proven by showing that the employee was entitled to a specific right and the employer failed to provide it. Id.; see also Hod-gens, 144 F.3d at 159. “To insure the availability of these guarantees, 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.’ ” King, 166 F.3d at 891 (quoting 29 U.S.C. § 2615(a)). The second category protects employees from discrimination or other adverse employment action because they have exercised, or are attempting to exercise, any of the substantive rights. Id.; § 2615(b). It is considered essentially “proscriptive in nature.” King, 166 F.3d at 891 (citing Hodgens, 144 F.3d at 160). A claim brought under the proscriptive portions of the FMLA is analyzed similarly to other anti-discrimination statutes. Id. at 892. 9. The FMLA provides a means for employees to enforce both their substantive and proscriptive rights under the statute: (a)(1) 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) ... any actual monetary losses sustained by the employee as a direct result of the violation.... (ii) the interest on the amount described in clause (I) calculated at the prevailing rate; and (iii) an additional amount as liquidated damages equal to the sum of the amount described in clause (I) and the interest described in clause (ii), except that if an employer ... proves ... that the act or omission ... 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.... (B) for such equitable relief as may be appropriate, including employment, reinstatement, and promotion. 29 U.S.C. § 2617. 10. The claims presented by Routes involve both categories of protection under the FMLA. His claim that Gould was angry with him for taking a leave during Christmas of 1994 and treated him differently throughout 1995 as a result, falls under the anti-discrimination provisions of the FMLA. In addition, Routes’ claims that Gould refused to restore him to his former position because Routes had taken leave in December of 1994—a type of retaliatory denial of substantive rights—also falls under this provision. The straightforward failure to restore claim falls under the substantive rights provisions. 11. In defense of its actions, the USPS argues that the CBA between itself and the Union incorporates USPS policies governing how an employee such as Routes may return to work after a medical leave for a mental condition. According to the USPS, those policies were followed, and Routes was found to be unfit to return to duty, causing his extended leave that ultimately led to his discharge. For the sake of clarity, the Court will address Routes’ claims of a violation of his substantive rights and of the anti-discrimination provisions separately, despite the factual overlap. B. Anti-Discrimination Claims 10. As part of its protection to eligibl