217 F.3d 492 (7th Cir. 2000)
SANDRA L. RICE,  Plaintiff-Appellee,v.SUNRISE EXPRESS, INCORPORATED, GAINEY CORPORATION and SUNRISE U.S.A.,  INCORPORATED,   Defendants-Appellants.
Nos. 97-3982 & 98-2195
In the  United States Court of Appeals  For the Seventh Circuit
SUBMITTED APRIL 21, 2000DECIDED JUNE 23, 2000

Appeals from the United States District Court  for the Northern District of Indiana, Fort Wayne  Division.  No. 96 C 447--William C. Lee, Chief Judge.  Roger B. Cosbey, Magistrate Judge.


1
Before POSNER, Chief Judge, and COFFEY,  FLAUM, EASTERBROOK, RIPPLE, MANION, KANNE,  ROVNER, DIANE P. WOOD, EVANS and WILLIAMS,  Circuit Judges.

On Petition for Rehearing En Banc

2
On consideration of the petition for  rehearing with suggestion of rehearing en  banc filed by the plaintiff-appellee and  the answer of defendants-appellants, all  of the judges on the original panel voted  to deny rehearing and a majority of the  judges in active service voted to deny  rehearing en banc. Judge Diane P. Wood  dissented from the denial of rehearing en  banc and filed an opinion which was  joined by Judge Ilana Diamond Rovner and  Judge Ann Claire Williams.


3
The petition for rehearing en banc is  denied.


4
DIANE P. WOOD, with whom ROVNER and  WILLIAMS join, dissenting from denial of  rehearing en banc.


5
In my view, this case deserves the  attention of the en banc court, because  it presents an important issue with  respect to the scope of the Family and  Medical Leave Act. The panel majority has  chosen one of two possible approaches to  the definition of the substantive  entitlement that the FMLA confers on  covered employees, and in so doing, it  has rejected the interpretation of the  statute that the Department of Labor  advocates. The first of the two  approaches is reflected in the Department  of Labor's regulations, 29 C.F.R. sec.  825.216(a)(1). It would provide that sec.  2614(a)(1) of the statute confers on  eligible employees the right to be  restored either to their existing  position or to an equivalent position  upon their return from FMLA leave, and  that sec. 2614(a)(3) creates an  affirmative defense for an employer to  defeat the employee's right to  reinstatement by showing that the  employee would not have been entitled to  the "right, benefit, or position of  employment" sought if she had not taken  the FMLA leave. The second of the two  approaches, which is adopted by the panel  majority, is that the statutory  separation of the right to reinstatement  and the exception reflected in sec.  2614(a)(1) and (a)(3) is of no  importance, because the inquiry in the  final analysis is a unitary one: the  employee must prove both the right to  reinstatement and show that the  employer's assertion that the right would  have been lost anyway was wrong.


6
No matter which interpretation is  chosen, I find it hard to understand why  the question is not important enough to  justify the time of the full court.  Furthermore, on the merits, it is my view  that Judge Evans, in dissent, had the  better of the argument. When burdens of  proof are allocated, it is normally most  efficient to place the burdens of  production and persuasion on the party  with the best access to relevant  information. Here, the employer is far  better situated to know whether an  overall change in company policy would  have meant the elimination of a job, or  another right or benefit, notwithstanding  the FMLA leave of a particular employee.  It will be difficult at best for  employees to gain access to that kind of  information without filing a lawsuit and  obtaining the assistance of the discovery  rules. Finally, the fact that the statute  lends itself to two equally reasonable  interpretations should lead this court to  defer to the one chosen by the  responsible agency, the Department of  Labor, as Judge Evans argued.


7
All of this results in the effective  destruction of the statutory presumption  that an employee who took FMLA leave is  entitled to job restoration. The panel  majority's exception to the rule  requiring restoration will effectively  swallow the rule itself, leaving a  statutory scheme in place that Congress  never created. This is an important  question, and it arises under an  important statute that has yet to be  explored extensively at the appellate  level. I therefore respectfully dissent  from the decision not to rehear the case  en banc.

