In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2064

Amy Kohls,

Plaintiff-Appellant,

v.

Beverly Enterprises Wisconsin, Inc. d/b/a
Maple Manor Healthcare,

Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Wisconsin.
No. 99 C 442--Barbara B. Crabb, Chief Judge.

Argued October 31, 2000--Decided August 1, 2001



  Before Bauer, Kanne, and Rovner, Circuit
Judges.

  Kanne, Circuit Judge. Plaintiff-
appellant Amy Kohls claims that her
employer, Beverly Enterprises Wisconsin,
Inc. d/b/a Maple Manor Healthcare
("Beverly"), failed to reinstate her at
the conclusion of her maternity leave in
violation of the Family and Medical Leave
Act ("FMLA")./1 We find that Kohls has
not proven that Beverly violated her
rights under the FMLA and thus we affirm
the district court’s grant of summary
judgment for Beverly.

I.   History

  Beverly owned and operated Maple Manor
Healthcare ("the Manor"), a residential
nursing home and rehabilitation facility
located in New Richmond, Wisconsin. Kohls
began working as the Manor’s Activities
Director in May 1997 and was responsible
for planning, implementing, and
overseeing activities for the Manor
residents. She was a full-time, at-will
employee. During her time at the Manor,
several different executive directors
reviewed Kohls’ performance, including
Bob Larson, Becky Olson, and Luanne
Flick. Though Larson gave plaintiff an
overall rating of above average in May
1998, he did note that she needed to
improve her performance in developing the
weekend activity schedule and increasing
volunteer membership. Olson served as
interim executive director during
thesummer of 1998, and she classified
plaintiff’s work as "marginal." Flick
became the executive director in August
1998 and made favorable comments about
plaintiff’s job performance.

  During the summer of 1998, the State of
Wisconsin conducted a survey of the Manor
that identified deficiencies in all of
the Manor’s departments, including the
activities department. For example,
residents had complained to the surveyors
about the lack of activities at night and
on the weekends. Flick met with Kohls on
August 17, 1998 to review the survey
results, and they discussed the lack of
evening programming, the general lack of
program variety, and the fact that mail
was not distributed on the weekends.
Plaintiff acknowledged that she could
improve on these areas, and she agreed to
arrange Saturday mail delivery and to
work two evenings a week to allow for
more evening activities. Flick mentioned
some concern about the amount of
programming but did not request Kohls to
make changes. The Resident Council report
from September 18, 1998 indicated that
new weekend programs were implemented and
that the residents were pleased.

  Towards the end of September, Kohls
requested FMLA leave from September 28,
1998 until December 1, 1998, which Flick
granted. Flick was receptive to the
request: she did not question Kohls about
the dates selected, hassle her about the
length of time requested, or make any
disparaging comments. Beverly hired a
full-time, temporary replacement, Shelly
Price, to fill Kohls’ position while she
was on leave. Several residents,
residents’ family members, and Beverly
employees complained to Price about
Kohls’ programming, though Price did not
share any of the comments with Flick.
Price herself criticized the quantity and
quality of Kohls’ programs and
implemented numerous changes: she adapted
some of Kohls’ programs, stopped using
some, and added others. At least four
residents told Price they did not want
her to leave because they preferred her
programming to Kohls’. Flick commented
two or three times during Kohls’
maternity leave that she wished Price
could be the Manor’s permanent Activities
Director.

  Flick asserts that, prior to the time
Kohls took leave, nursing assistants,
several residents, and several residents’
family members communicated their
dissatisfaction with the activities
program at the Manor. Flick did not make
any written record of the complaints,
however, and could only recall the name
of one such person. Flick also asserts
that games and activity supplies were
outdated or worn out and had to be
replaced by Price, that Kohls did not
recruit a sufficient number of
volunteers, and that Kohls had no
accessible list of volunteers. Kohls
admitted that there was no active
volunteer listing available, but she
contests the other accusations. Price’s
deposition testimony indicates support
for Kohls’ view: Price did not recall
purchasing any new games or supplies, and
she felt that the number of volunteers
was not a concern (though two volunteers
started while she was director).

  Shortly after Kohls began her leave,
Flick became concerned about the status
of the Resident Council checking account,
a trust fund containing residents’ money
for which Kohls maintained the checkbook.
As it turned out, Kohls had told Price
that there were errors in the checkbook
just prior to the time she took leave.
Kohls has since admitted that she did not
record dates and check numbers for every
entry, that she did not routinely
reconcile the bank statements against the
check register, that she threw away the
bank statements rather than maintain a
record, that her checkbook entries did
not explain the purpose for checks
written to "cash," and that a check for
$30.93 was not accounted for. Because the
account is considered a trust account,
Flick was legally required to report any
suspected misappropriation of funds but
she did not do so, nor did she contact
Kohls about her concerns.

  Flick called Kohls twice during her
maternity leave to ask her to attend
certain meetings so she would be up to
speed when she returned to work. During
the first call, Flick told Kohls she
would like her to attend an all-day
conference in River Falls, Wisconsin.
Kohls agreed to attend and brought her
newborn baby with her. Then, in mid-
November, Flick asked Kohls to attend
another all-day conference, this time in
Hayward, Wisconsin. Kohls told Flick she
did not think she could go, as it would
entail twelve hours away from her nursing
infant. Flick became abrupt and retorted,
"How is that going to change in two weeks
when you come back?" Notwithstanding the
outburst, Flick agreed that Kohls could
attend the same conference in December
after she returned to work.

  Prior to her return, Kohls received a
call from Olson advising her to apply
elsewhere for employment. Olson told
Kohls that she thought Flick "was going
to give [Kohls] a hard time when she came
back." Nonetheless, Kohls returned to
work on November 30, 1998. She resumed
her normal duties and went to a
departmental meeting at 9 a.m. Afterward,
Flick asked Kohls if she would be able to
meet later that day. During that meeting,
at which Olson was present, Flick asked
Kohls if she had applied for another job.
Kohls replied in the negative. Flick then
informed Kohls that she had received
complaints from relatives of residents
and volunteers about Kohls’ work as
Activities Director. Flick also accused
her of embezzlement, basing the
accusation on the fact that dates and
check numbers were missing from the check
register and that the balance in the
checkbook was different from the bank’s
balance by $70.86. Flick presented Kohls
with a copy of the checkbook but did not
give Kohls any time to look through it.
When Flick was not satisfied with Kohls’
explanation of the checkbook situation,
Flick told Kohls that she had the option
to resign or to be terminated because of
misappropriation and mishandling of
funds. Kohls initially agreed to resign
but later rescinded the resignation and
told Flick that she would have to fire
her. Flick did so, citing the alleged
misappropriation and job performance as
reasons for the termination./2

  At all relevant times, Beverly had a
written discipline policy dividing
prohibited behavior into two categories.
Misappropriation of funds is
characterized as a category one violation
while performance concerns are a category
two violation. In the event of a category
one violation, the policy requires an
employee to be immediately suspended
without pay pending an investigation. The
investigation must include interviews
with all witnesses as well as an opportu
nity for the employee to give her side of
the story. Beverly’s Human Resources
Manager must also be consulted and
advised of the investigation’s results.
The Executive Director ultimately decides
whether discharge is appropriate, though
the HR Manager has input into the
decision. For category one violations,
progressive discipline is to be employed
so that the employee has the opportunity
to change his or her behavior. The policy
states, however, that these disciplinary
policies are not absolute.

  The discipline and counseling procedures
set forth below articulate factors and
procedures that Beverlybelieves are
generally appropriate to govern employee
conduct and performance. Provisions of
these procedures are not, however,
absolute rules. In each case of
misconduct or poor performance, the
appropriate discipline or counseling
action will be determined at Beverly’s
discretion on the basis of the particular
facts or circumstances.

Beverly also has a separate discharge
policy which states: "No discharge will
occur without the proper investigation of
the misconduct to determine if discharge
is appropriate." What constitutes a
proper investigation is not specified.

  Kohls filed suit in Wisconsin state
court, alleging that Beverly failed to
restore her to the position of Activities
Director in violation of the Family and
Medical Leave Act, 29 U.S.C. sec.
2614(a)(1). Beverly removed to the United
States District Court for the Western
District of Wisconsin pursuant to 28
U.S.C. sec. 1441, and subsequently moved
for summary judgment. In reviewing
defendant’s motion, the district court
focused on "whether plaintiff had shown
that a jury could conclude that her
firing was motivated by her . . . use of
leave." Kohls v. Beverly Enter. of Wis.,
Inc., No. 99-C-442-C, slip op. at 2 (W.D.
Wis. March 27, 2000). The court answered
this question in the negative and granted
Beverly’s motion for summary judgment.
See id. Kohls appeals only that portion
of the summary judgment decision
dismissing her FMLA claim.
II.   Analysis

  The FMLA provides eligible employees
with certain substantive rights, and it
is "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. sec.
2615(a)(1). Plaintiff alleges that
Beverly denied her right to be
reinstated. The FMLA provides, with one
minor exception not applicable here, that
"any eligible employee who takes 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." 29 U.S.C. sec.
2614(a)(1). Eligible employees are thus
entitled to reinstatement. See id.;
Haschmann v. Time Warner Entm’t Co., 151
F.3d 591, 604 (7th Cir. 1998). The
substantive right provided in sec.
2614(a)(1), however, "shall [not] be con
strued to entitle any restored employee
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." sec. 2614(a)
(3)(B); see also Rice v. Sunrise Express,
Inc., 209 F.3d 1008, 1017-18 (7th Cir.
2000), reh’g en banc denied, 217 F.3d
492, cert. denied, ___ U.S. ___, 121 S.
Ct. 567, 148 L. Ed. 2d 486 (2000). The
right to reinstatement is therefore not
absolute.

  When an employee alleges that the
employer interfered with her substantive
rights under the FMLA, we require her to
"establish[ ], by a preponderance of the
evidence, that [s]he is entitled to the
benefit [s]he claims." Diaz v. Fort Wayne
Foundry Corp., 131 F.3d 711, 713 (7th
Cir. 1997). The employer may then present
evidence to show that the employee would
not have been entitled to her position
even if she had not taken leave. See
Rice, 209 F.3d at 1018 (quoting O’Connor
v. PCA Family Health Plan, Inc., 200 F.3d
1349, 1354 (11th Cir. 2000) (holding that
"the employer has an opportunity to
demonstrate that it would have discharged
the employee even if she had not been on
FMLA leave")). The employee must then
overcome the employer’s assertion, as she
carries the burden of demonstrating her
right to the entitlement. See id.; but
see id. at 1019 (Evans, J. dissenting);
Rice v. Sunrise Express, Inc., 217 F.3d
492, 493 (7th Cir. 2000) (Diane P. Wood,
J. dissenting from denial of reh’g en
banc); 29 C.F.R. sec. 825.216(a)(1)
(explaining that "[a]n employer must be
able to show that an employee would not
otherwise have been employed at the time
reinstatement is requested in order to
deny restoration to employment"). Thus,
Kohls must show that she was entitled to
be reinstated as the Manor’s Activities
Director, which means she must prove that
Beverly would not have discharged her had
she not taken FMLA leave. See Rice, 209
F.3d at 1018.

  As indicated by the statute, an employer
can refuse to restore an employee to
their former position when restoration
would confer a "right, benefit, or
position of employment" that the employee
would not have been entitled to if the
employee had never left the workplace. 29
U.S.C. sec. 2614(a)(3)(B). For example,
if an employee was hired only for a
discrete project, and that project was
completed while the employee was on
leave, then the employer has no
obligation to restore the employee. See
29 C.F.R. sec. 825.216(b). The
regulations also state that an employee
who is laid off during the course of her
leave has no right to reinstatement. See
id. at (a)(1). With no absolute right to
reinstatement, whether an employer
violates the FMLA turns on why the
employee was not reinstated. Clearly, an
employee may not be fired because she
took leave--that would be in direct
violation of the statute. See 29 U.S.C.
sec. 2615(a)(2). However, an employee may
be fired for poor performance when she
would have been fired for such
performance even absent her leave. See
Clay v. City of Chi. Dep’t. of Health,
143 F.3d 1092, 1094 (7th Cir. 1998).

  Kohls asserts that she would not have
been fired had she not taken leave and
was thus entitled to reinstatement.
Beverly counters by claiming that Kohls
would have been terminated regardless of
whether or not she took maternity leave,
due to the problems with the Resident
Council checkbook and the activities
program. We find that Beverly has
presented sufficient evidence to support
its assertion that Kohls was terminated
for the stated reasons. Kohls admitted
that at least one check was not accounted
for, that she did not consistently record
check numbers or amounts, that she threw
out the bank statements, and that she did
not balance the checkbook. Kohls has not
suggested that Flick was lying when she
stated that the checkbook was off by
$70.86 nor has Kohls presented any
explanation for the difference. With
respect to the performance issues, it is
clear from the record that numerous
parties commented on the deficiencies in
the activities department under Kohls.
While it is not as clear how much of this
had been communicated directly to Flick,
it is undisputed that she was aware of
the problems, and had even discussed them
with Kohls (following the state survey).
An employer undoubtedly has the
discretion to fire an at-will employee
for mishandling and mismanaging funds or
for poor performance, or both. See
Kariotis v. Navistar Int’l Transp. Corp.,
131 F.3d 672, 678-79 (7th Cir. 1997)
("[N]o federal rule requires just cause
for discharges.") (quotation omitted). It
is possible, of course, that Flick would
have disciplined Kohls less severely--by
choosing something other than immediate
termination--if there had not been
another employee ready to take Kohls’
place. Our role is not, however, to tell
employers how to discipline employees;
rather, it is to ensure that the process
is not discriminatory. See id.

  Yet there is an additional twist:
Beverly did not decide to fire Kohls
until some time after she took leave./3
Cf. Santos v. Knitgoods Workers’ Union,
Local 155, 252 F.3d 175, 178-79 (2d Cir.
2001) (discussing case in which employee
had no right to reinstatement because the
employer had already decided to terminate
the employee prior to the time the
employee took leave). We can imagine
circumstances in which the timing of this
decision could lead a fact finder to
infer that the employee would not have
been fired absent her taking of leave
(if, for example, a supervisor who had
been aware of problems with an employee
did not decide to fire the employee until
she took leave, and the supervisor based
the firing on the incidents of which the
employer had already been aware). Cf.
Clay, 143 F.3d at 1094 (recognizing that
the employee was discharged "solely
because of her work deficiencies known to
defendants prior to her leave" yet still
finding that "plaintiff was discharged
for poor performance rather than for
taking a medical leave"). Here, however,
it is clear that the employer did not
discover many of the deficiencies in
Kohls’ work--particularly with respect to
the checkbook--until after Kohls took
leave. The fact that the leave permitted
the employer to discover the problems can
not logically be a bar to the employer’s
ability to fire the deficient employee.

  Ultimately, Kohls asserts that she was
fired not due to problems with the
checkbook or her performance, but rather
because Flick liked plaintiff’s
replacement better. She thus asserts that
Beverly’s reasons for firing her are
merely pretext for discrimination. While
we do review "whether the employer’s
description of its reasons is honest,"
Gustovich v. AT&T Communications, Inc.,
972 F.2d 845, 848 (7th Cir. 1992), the
employee’s burden is to prove a violation
of the FMLA. Thus, pretext may have
evidentiary value, but showing pretext
does not necessarily satisfy the
employee’s burden. See Diaz, 131 F.3d at
713 (comparing the use of pretext in the
FMLA context with the use of pretext in
the McDonnell Douglas burden-shifting
scheme); cf. Haschmann, 151 F.3d at 604-
05 (finding sufficient evidence for a
jury to conclude that the plaintiff-
employee was not terminated for poor
performance, as the employer contended,
but rather was terminated in violation of
the FMLA).

  Kohls points to Flick’s openly
acknowledged wish that Price could be the
Manor’s permanent Activities Director as
evidence that Kohls was not fired for the
checkbook or performance related
problems. Yet Flick’s preference for
Price does not itself demonstrate that
Kohls would not have been terminated if
she had not taken leave. Beverly would
have been entitled to fire Kohls for
mismanagement and mishandling of funds
regardless of whether she had taken leave
or not. Further, the facts support
Beverly’s contention that Flick, numerous
residents, residents’ family members, and
other employees all preferred Price due
to her successful activities programs.
Nothing in the record indicates that
Flick preferred Price for any reason
related to Kohls’ taking of leave.
  Kohls asserts that if she had really
been fired for the stated reasons, Flick
would have followed Beverly’s policies
pertaining to termination. Kohls is
correct that Flick did not follow the
discipline and counseling procedures set
forth in its written discipline policy
(requiring suspension without pay, an
investigation with witnesses, and so
forth). However, as noted above, the
procedures outlined in Beverly’s policy
were only a guide and did not have to be
followed in all instances. It was in the
discretion of the executive director,
Flick, to terminate Kohls on the spot
rather than initiate the formal process.
As we have stated many times, our role is
not to make suggestions to managers on
how to deal with employees more fairly or
effectively--we leave that to a company’s
personnel department. See Dale v. Chi.
Tribune Co., 797 F.2d 458, 464 (7th Cir.
1986) ("This Court does not sit as a
super-personnel department that
reexamines an entity’s business
decisions.").

  Beverly has asserted that Kohls’
deficiencies were the reason for her
termination and that she would have been
terminated regardless of her leave, and
Kohls has not presented sufficient
evidence for a fact finder to conclude
otherwise. While we recognize the
difficulty of an employee’s burden in
this respect, our court has ruled on the
appropriateness of this burden, see Rice,
209 F.3d at 1018, and we decline
plaintiff’s request to reconsider that
decision.

III.   Conclusion

  We find that Amy Kohls has not proven
that she was entitled to be restored to
her position as the Manor’s Activities
Director following her FMLA leave. The
district court’s grant of summary
judgment for the defendant-appellee,
Beverly Enterprises Wisconsin, Inc., is
thus AFFIRMED.

FOOTNOTES

/1 Plaintiff’s district court complaint also alleged
that Beverly fired her in retaliation for taking
FMLA leave and violated her rights under Title
VII of the Civil Rights Act of 1964, though she
has not pursued these claims on appeal.
/2 The termination form completed by Flick for Kohls
indicates that Kohls was involuntarily terminated
for "job performance" and "conduct." A note
expounded on the reasons: "misappropriation/mis-
handling of Resident Council checkbook [and]
funds--inadequate activities programming to meet
the needs of all residents."

/3 The timing of the decision is not clear in the
record; we do not know whether Flick had already
decided to fire Kohls before she returned from
leave or whether the decision was made the day
Kohls returned to work, during the meeting on
November 30, 1998.
