                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 09-2283

D OROTHY E. G OELZER,
                                              Plaintiff-Appellant,
                               v.

S HEBOYGAN C OUNTY, W ISCONSIN and
A DAM N. P AYNE,
                                           Defendants-Appellees.


          Appeal from the United States District Court
              for the Eastern District of Wisconsin.
        No. 07 C 451—Charles N. Clevert, Jr., Chief Judge.



     A RGUED O CTOBER 6, 2009—D ECIDED M AY 12, 2010




 Before B AUER, W OOD , and W ILLIAMS, Circuit Judges.
  W ILLIAMS, Circuit Judge. After two decades of employ-
ment with her county government, Dorothy Goelzer
was fired from her job. Her supervisor informed her
of the termination decision two weeks before she was
scheduled to begin two months of leave under the
Family and Medical Leave Act (FMLA). This leave did not
mark the first time Goelzer was away from work on
2                                               No. 09-2283

FMLA leave, as Goelzer had taken a significant amount of
authorized FMLA leave during the four preceding years
to deal with her own health issues and those of her
mother and husband. After she lost her job, Goelzer
brought this suit and alleged that her employer had
interfered with her right to reinstatement under the
FMLA and had retaliated against her for taking FMLA
leave. The defendants contend that her supervisor
simply decided to hire another person with a larger skill
set. The district court agreed with the defendants and
granted summary judgment against Goelzer. We, how-
ever, conclude that Goelzer has marshaled enough evi-
dence for this case to reach a trier of fact, including com-
ments suggesting her supervisor’s dissatisfaction with
her use of FMLA leave, her positive performance
reviews, and the timing of her termination. Therefore,
we reverse the entry of summary judgment against her.


                   I. BACKGROUND
  Sheboygan County, Wisconsin hired Dorothy Goelzer
in 1986 to serve as a Clerk Typist in its office of the
Register of Deeds. Two years later, Goelzer applied for the
position of Administrative Assistant to the County
Board Chairperson and received the job. Goelzer’s boss
worked part-time and was only present intermittently
in the office.
  In 1997, the County Board enacted an ordinance that
created a full-time Administrative Coordinator position.
The Board hired a new Administrative Coordinator
the next year, and Goelzer’s position was converted to
No. 09-2283                                             3

that of Administrative Assistant to the County Admin-
istrative Coordinator. The Board hired Adam Payne as
its Administrative Coordinator in January 1999. Goelzer
became the administrative assistant to Payne, who
unlike her previous boss was in the office full-time, and
Goelzer also assisted the County Board Chairperson.
  Payne consistently gave Goelzer good performance
reviews. For the 2000 year, Payne rated Goelzer with
an overall performance score of 3.8 on a scale of zero to
five, and Goelzer received a merit pay increase of 1.5%.
Payne commented in that year’s performance evaluation
that Goelzer was “rarely absent,” and he gave her a 4.0
in the “attendance” category. Payne gave her a 4.0 for
attendance the following year and noted she “is rarely
absent (36 hours of sick leave in 2001).” Goelzer received
an overall rating of 3.72 in that evaluation and again
received a merit increase.
  Goelzer began to have significant health issues in 2002.
She had eye surgery in July and took approximately
a month of FMLA leave during her surgery and recov-
ery. She also had multiple doctors’ appointments in the
months before and after her surgery. All in all, she
used 312.50 hours of sick leave in 2002, the equivalent of
nearly eight forty-hour weeks. Payne wrote in Goelzer’s
2002 performance evaluation that, “[t]hough Dorothy
has had an excellent record in the past, (36 hours of
sick leave in 2001), she utilized 312 hours or 39 days of
sick leave in 2002.”
  Goelzer continued to have health problems in 2003. She
had another eye surgery that year and took two weeks
4                                               No. 09-2283

of FMLA leave as a result. She also had many doctors’
appointments throughout the year. Goelzer took time
off on thirty-two different days during 2003 for her
health issues and used a total of 176.50 hours of leave.
Payne commented on Goelzer’s use of sick leave again
in that year’s performance evaluation, stating: “Dorothy
utilized 176.50 hours or 22 days of sick leave in 2003.”
He gave her an overall rating of 3.36, with a 3.5 in the
attendance category. He did not award her a merit pay
increase. Goelzer disagreed with some of the reasons
Payne gave for not awarding her a merit increase, and
she wrote Payne a memorandum detailing her position.
Payne responded on February 5, 2004 in a memoran-
dum to Goelzer that said in part:
    On page 3 of 4, you have denoted goals you believe
    to have accomplished. As we discussed during
    your performance review and I have noted in
    your annual performance review, your perspec-
    tive is different than mine.
    I am very pleased that you understand the impor-
    tance of having a user-friendly filing system in
    place. As you mentioned, you were out of the
    office having eye surgery in 2002 and 2003. In fact,
    the past two years, use of sick leave and vacation
    combined, you were out of the office 113 days. As
    the only support person in the office, this has
    presented challenges in the functionality and
    duties associated with the office.
  Goelzer used 94 hours of sick leave in 2004. She received
a merit increase of 1.5% after her 2004 evaluation. The
No. 09-2283                                             5

next year, Goelzer’s health was stable, but her mother’s
health was not. Goelzer took FMLA leave on nine days
in 2004 for appointments related to her mother or
husband, and her 2005 FMLA applications included
requests for intermittent leave to care for her mother.
Goelzer received a 1.25% merit increase after 2005.
Goelzer stated in an affidavit that when she asked why
she did not receive a higher merit pay increase, Payne
responded that she had missed a lot of time at work
due to appointments with her mother.
  Goelzer learned in 2006 that she would need foot
surgery that year. On May 10, 2006, Goelzer submitted
an FMLA leave request for time away from work from
September 22, 2006 to November 20, 2006 for her foot
surgery and recovery. At Payne’s request, Goelzer pro-
vided a medical certification for the foot surgery to
Human Resources Director Michael Collard on June 1,
2006. Collard wrote directly to Goelzer’s doctor five
days later and asked whether Goelzer could return to light
duty office work before November 19, 2006, and if so,
when. Goelzer’s doctor responded that she would be
totally disabled and unable to work during that time
period. The County eventually approved Goelzer’s
FMLA leave request on August 8.
  On August 15, 2006, the Sheboygan County Board
passed an ordinance that converted the position of
County Administrative Coordinator to that of County
Administrator. The Board also appointed Payne to serve
as County Administrator. With this change, Payne now
had the power under Wisconsin Statute § 59.18(3) to
6                                              No. 09-2283

discharge Goelzer on his own, a power he did not previ-
ously have. Within the next ten days, Payne told Collard
that he wanted to meet to discuss options for terminating
Goelzer’s employment. In preparation for the August 25,
2006 meeting, Collard prepared notes related to options,
with a list that included “term outright, just need to
change,” “eliminate position,” “Change T/O—reshuffle—
create new position not qualified for,” “Raise expecta-
tions & evaluate,” and “Retaliation for FMLA?”.
  On September 8, 2006, two weeks before Goelzer was
to commence FMLA leave for her foot surgery,
Payne discharged Goelzer with an effective date of Nov-
ember 30, 2006. (Payne placed Goelzer on paid leave
until November 30, 2006 so that she would receive the
FMLA leave that had been previously approved.) At the
time, Goelzer had used 67 hours of leave in 2006 and
was scheduled to take an additional 328 hours related to
her foot surgery. Goelzer’s discharge document stated:
    Under Section 59.18(3) of the Wisconsin Statutes,
    and Section II N of the County Administrator’s job
    description, the County Administrator has the
    right to appoint an administrative secretary of his
    own choosing. The County Administrator has
    decided to appoint an Administrative Assistant
    other than the current incumbent in that position,
    Dorothy Goelzer. Goelzer’s employment with
    the County must therefore be terminated. This
    action is not based on any infraction committed
    by Goelzer, and should not be considered a dis-
    ciplinary action.
No. 09-2283                                              7

   Payne did not immediately replace Goelzer. Instead, he
first utilized an unpaid college intern. On January 16,
2007, the County Board enacted an ordinance that elimi-
nated Goelzer’s former position and replaced it with the
position of “Assistant to the Administrator.” It also
increased the pay grade for the role from Grade 6 to
Grade 8. Payne hired Kay Lorenz as the Assistant to the
Administrator on March 19, 2007.
  Goelzer filed this lawsuit in federal court alleging that
the County and Payne violated the FMLA when they did
not restore her to her position after her FMLA leave and
instead fired her, and that they discriminated against her
in violation of the FMLA when they did so. She also
brought a breach of contract claim alleging that her dis-
charge breached her contractual rights under Sheboygan
County’s Policies and Procedures Manual. The district
court granted summary judgment in favor of the defen-
dants on all of Goelzer’s claims. Goelzer appeals,
raising only the FMLA determination.


                     II. ANALYSIS
  We review the district court’s grant of summary judg-
ment de novo, and we view all facts and draw reasonable
inferences therefrom in the light most favorable to the
nonmoving party. Burnett v. LFW, Inc., 472 F.3d 471, 477
(7th Cir. 2006). Summary judgment is only appropriate
when the pleadings, discovery materials, disclosures, and
affidavits demonstrate that there is no genuine issue as
to any material fact and that the moving party is entitled
8                                               No. 09-2283

to judgment as a matter of law. Fed. R. Civ. P. 56(c); see
also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
  The FMLA allows an eligible employee with a serious
health condition that renders the employee unable to
perform her position to take twelve workweeks of
leave during each twelve-month period. 29 U.S.C.
§ 2612(a)(1)(D). An employee may also utilize this leave
to care for certain immediate relatives, including a
parent or spouse, with a serious health condition. Id.
§ 2612(a)(1)(C). Under the FMLA, an employee on leave
is entitled to the right to be restored to the
same or an equivalent position that she had before she
took qualifying leave. Id. § 2614(a)(1)-(2). An employer may
not “interfere with, restrain, or deny the exercise of or the
attempt to exercise” any FMLA rights. Id. § 2615(a)(1).
   In addition, the FMLA affords protection to employees
who are retaliated against because they exercise rights
protected by the Act. Lewis v. Sch. Dist. #70, 523 F.3d
730, 741 (7th Cir. 2008). Pursuant to 29 U.S.C. § 2615(a)(2),
it is “unlawful for any employer to discharge or in any
other manner discriminate against any individual for
opposing any practice made unlawful by this sub-
chapter.” The Act also makes it unlawful to “discharge” or
“discriminate” against a person for taking part in pro-
ceedings or inquiries under the FMLA. 29 U.S.C. § 2615(b).
We have construed these provisions as stating a cause
of action for retaliation. See, e.g., Lewis, 523 F.3d
at 741; Kauffman v. Federal Express Corp., 426 F.3d 880,
884 (7th Cir. 2005).
No. 09-2283                                               9

  Goelzer argues on appeal that she can establish both
interference and retaliation under 29 U.S.C. §§ 2614(a)(1)
and 2615(a)(2), respectively. The defendants state in their
response brief that they “take issue” with Goelzer’s
assertion that her complaint included claims for both
interference and retaliation. They state that they under-
stood Goelzer’s complaint to assert that they discrim-
inated against her for having exercised her FMLA
rights, which appears to be a statement that they only
read her complaint to allege retaliation.
  Goelzer’s Amended Complaint stated in relevant part:
    16. Under 29 U.S.C. § 2614(a)(1), Dorothy was
        entitled to be restored to her position with
        Sheboygan County or an equivalent position
        with Sheboygan County after her return
        from medical leave.
    ...
    21. By the above-described intentional conduct,
        Sheboygan County and Payne violated the
        FMLA by discriminating against Dorothy for
        exercising her FMLA rights and by refusing
        to return her to her position or an equivalent
        position following her leave.
Paragraph 16 explicitly cites to 29 U.S.C. § 2614(a)(1), the
statutory provision for FMLA interference claims, and
the allegation in the paragraph mirrors that provision’s
language. Paragraph 21, on the other hand, uses the
language of the FMLA retaliation provision. See 29 U.S.C.
2615(a)(2). So to the extent the defendants are arguing
10                                               No. 09-2283

that Goelzer waived an interference or retaliation cause
of action by failing to raise either in the complaint,
we disagree. We also note that the district court
addressed both interference and retaliation in its sum-
mary judgment ruling. We now turn to Goelzer’s
argument that the entry of summary judgment against
her should be reversed on both theories.


  A. FMLA Interference
  We first address Goelzer’s interference argument. The
plaintiff carries the burden of proving an FMLA interfer-
ence claim. Darst v. Interstate Brands Corp., 512 F.3d 903,
908 (7th Cir. 2008). To establish such a claim, an
employee must show that: (1) she was eligible for the
FMLA’s protections; (2) her employer was covered by
the FMLA; (3) she was entitled to take leave under the
FMLA; (4) she provided sufficient notice of her intent
to take leave; and (5) her employer denied her FMLA
benefits to which she was entitled. Burnett, 472 F.3d at
477. There is no dispute regarding the first four require-
ments; it is clear that the FMLA allowed Goelzer to take
the leave that she did. The only issue is whether the
defendants fired her to prevent her from exercising her
right to reinstatement to her position. See Simpson v.
Office of the Chief Judge of the Circuit Court of Will County,
559 F.3d 706, 712 (7th Cir. 2009) (“Firing an employee to
prevent her from exercising her right to return to her
prior position can certainly interfere with that em-
ployee’s FMLA rights.”).
No. 09-2283                                                 11

  An employee’s right to reinstatement is not absolute.
The FMLA allows an employer to refuse to restore an
employee to the “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.” Kohls v.
Beverly Enters. Wisc., Inc., 259 F.3d 799, 805 (7th Cir. 2001)
(citing 29 U.S.C. § 2614(a)(3)(B)); see also 29 C.F.R.
§ 825.216(a) (“An employee has no greater right to rein-
statement or to other benefits and conditions of employ-
ment than if the employee has been continuously em-
ployed during the FMLA leave period.”). In other
words, an employee is not entitled to return to her
former position if she would have been fired regardless
of whether she took the leave. See Breneisen v. Motorola, Inc.,
512 F.3d 972, 978 (7th Cir. 2008).
  The question at this stage of the proceedings, then, is
whether a jury could find that the defendants did not
reinstate Goelzer because she exercised her right to take
FMLA leave. See Kohls, 259 F.3d at 805; Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986) (“at the summary
judgment stage the judge’s function is not himself to
weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine
issue for trial”). Payne and the County maintain that
the answer is “no,” as their position is that Goelzer’s
employment would have been terminated regardless of
whether she took FMLA leave. They maintain that
after Payne received a promotion to County Admin-
istrator, he simply exercised his new authority to replace
Goelzer on his own with a person of his choosing. They
12                                              No. 09-2283

stress that before his promotion, Payne would have
needed the approval of the County through its Executive
Committee before he could terminate Goelzer’s employ-
ment. With the promotion to County Administrator,
however, Payne could now make the termination decision
on his own. See Wis. Stat. § 59.18(3). And three weeks
after he assumed his new role, Payne notified Goelzer she
was losing her job, a decision he says had nothing to
do with Goelzer’s use of FMLA leave.
  Michael Collard, the County’s Human Resources Direc-
tor, supports Payne’s account. Collard asserts that
Payne had expressed frustration for some time that
Goelzer was not performing the tasks Payne had envi-
sioned for her, and Collard also says that Payne had
expressed a desire for an assistant with a greater skill set.
In addition, although Payne did not immediately replace
Goelzer and instead first utilized a college intern, Payne
maintains that in the longer term he wanted the posi-
tion to be enhanced to allow him to assign more sophisti-
cated tasks beyond those that he says Goelzer could
handle.
  The defendants’ account provides one possible explana-
tion for the termination decision, and a jury might
well choose to believe it. But there is another possibility
as well. Goelzer contends that she lost her job because
Payne and the County were not happy that she had
exercised her right to take FMLA leave. Indeed, she used
312 hours of FMLA leave in 2002, 176 hours in 2003, 94
hours in 2004, at least 70 hours in 2005, and she was on
track to use nearly 400 hours in 2006. Again, there is
No. 09-2283                                              13

no dispute that the FMLA authorized Goelzer to take all
of this leave. Even though the leave was authorized,
we conclude that the evidence Goelzer introduced in
response to the defendants’ motion for summary judg-
ment could lead a jury to find that she was denied rein-
statement not because Payne simply wanted a different
assistant, but because she had exercised her right to
take leave under the FMLA.
  A jury might be swayed by comments Payne made
that could suggest frustration with Goelzer’s use of
FMLA leave. In her 2002 performance evaluation, for
instance, Payne explicitly contrasted Goelzer’s use of
FMLA leave with her past “excellent” attendance, saying,
“[t]hough Dorothy has had an excellent attendance
record in the past, (36 hours of sick leave in 2001), she
utilized 312 hours or 39 days of sick leave in 2002.” Payne
gave her a 3.5 rating in the “attendance” category in
2002. He noted her use of sick leave in the following
year’s performance evaluation as well, stating “Dorothy
utilized 176 hours of 22 days of sick leave in 2003,” and he
gave her an overall rating of 3.36 that year but did not
award a merit increase. Notably too, when Goelzer asked
Payne in 2006 why she did not receive a higher merit
increase based on her 2005 performance, she says that
Payne responded that she had missed too much time
from work to attend to appointments with her mother.
  A jury might also look to the memorandum Payne
wrote in 2004 in response to Goelzer’s view that she
should have received a merit increase, where he said in
part: “you were out of the office having eye surgery in
14                                             No. 09-2283

2002 and 2003. In fact, the past two years, use of sick
leave and vacation combined, you were out of the
office 113 days. As the only support person in the office,
this has presented challenges in the functionality and
duties associated with the office.” A jury might view
this memorandum as evidence that Goelzer lost her job
because she exercised her right to take FMLA leave, as
it might Payne’s comments in an evaluation he wrote
in January 2006: “On occasion, I have been concerned
with office and phone coverage. Dorothy had numerous
appointments the past year and needs to be more
cognitive of the time she is away from her desk or cor-
responding with others on non-related work activities.”
The defendants do not dispute that the FMLA protected
Goelzer’s attendance at these appointments, and a jury
could look to those comments as indication that
Payne was not pleased Goelzer had been absent for
many FMLA-covered appointments, even though she
was permitted to take them by the Act and an employer
is not to interfere with that right.
  Moreover, although Payne now maintains he had
concerns about Goelzer’s skill set and performance, he
consistently gave her favorable performance reviews.
He says now that her satisfactory performance ratings
reflect his “lowered expectations” of her abilities, but
the performance ratings themselves do not speak of
lowered expectations, and a jury would not be com-
pelled to credit this explanation. In fact, just over seven
months before Payne told Goelzer she was being termi-
nated, he had conducted Goelzer’s annual performance
review and concluded that her performance met or ex-
ceeded expectations in all areas.
No. 09-2283                                               15

  A factfinder might also consider that, if Payne had
serious problems with Goelzer’s performance, he could
have asked the County Board to terminate Goelzer’s
employment before he received the promotion, yet he
did not do so. In addition, although Payne asserts that he
wanted an assistant with a larger skill set, there are no
documents evidencing a plan to restructure the assistant
position before Goelzer’s termination. And, of course,
Payne told Goelzer that she was losing her job two
weeks before she was scheduled to take two months of
FMLA leave. See Kohls, 259 F.3d at 806. In short, we are
left with two competing accounts, either of which a jury
could believe. So summary judgment is not appro-
priate, and we reverse its grant.


  B. FMLA Retaliation
  Goelzer also contends her FMLA retaliation theory
should proceed to trial. The FMLA provides that it is
unlawful for an employer “to discharge or in any
manner discriminate against” any employee for
opposing any practice the FMLA makes unlawful. 29
U.S.C. § 2615(a)(2). The difference between a retalia-
tion and interference theory is that the first “requires
proof of discriminatory or retaliatory intent while [an
interference theory] requires only proof that the
employer denied the employee his or her entitlements
under the Act.” Kauffman, 426 F.3d at 884; see also King v.
Preferred Technical Group, 166 F.3d 887, 891 (7th Cir. 1999).
To succeed on a retaliation claim, the plaintiff does not
need to prove that “retaliation was the only reason for
16                                               No. 09-2283

her termination; she may establish an FMLA retaliation
claim by ‘showing that the protected conduct was a
substantial or motivating factor in the employer’s decision”.’
Lewis, 523 F.3d at 741-42 (quoting Culver v. Gorman & Co.,
416 F.3d 540, 545 (7th Cir. 2005)).
  A plaintiff may proceed under the direct or indirect
methods of proof when attempting to establish an
FMLA retaliation claim. Burnett, 472 F.3d at 481. Under
the direct method, the only method Goelzer employs, a
plaintiff must present evidence that her employer took
a materially adverse action against her because of her
protected activity. Id. If the plaintiff’s evidence is contra-
dicted, the case must proceed to trial unless the em-
ployer presents unrebutted evidence that it would have
taken the adverse action against the plaintiff even if it
did not have a retaliatory motive. Id. (citing Stone v. City
of Indianapolis Pub. Utils. Div., 281 F.3d 640, 644 (7th Cir.
2002)). That is, the plaintiff survives summary judgment
by “ ‘creating a triable issue of whether the adverse em-
ployment action of which she complains had a discrim-
inatory motivation.’ ” Lewis, 523 F.3d at 741 (quoting
Rudin v. Lincoln Land Cmty. Coll., 420 F.3d 712, 729 (7th
Cir. 2005)).
  Payne and the County maintain that a jury could not
conclude that they intentionally discriminated against
Goelzer for using FMLA leave. In addition to the
evidence to which she pointed in support of her inter-
ference claim, Goelzer also directs our attention to
Human Resources Director Collard’s inquiry to Goelzer’s
physician that asked “[w]hether Ms. Goelzer would be
No. 09-2283                                               17

physically able to work light duty in an office environ-
ment prior to November 19, 2006, and if so, when would
be an appropriate time that we would expect her to
return.” As Goelzer points out, 29 C.F.R. § 825.307 pro-
vides that “[i]f an employee submits a complete and
sufficient certification signed by the health care provider,
the employer may not request additional information
from the health care provider.” Goelzer submitted a
complete and signed certification, so at the time Collard
contacted Goelzer’s physician without her permission,
that contact likely violated the FMLA. See Smith v. Hope
School, 560 F.3d 694, 698 n.4 (7th Cir. 2009). (The regula-
tion has since been amended to add that “the employer
may contact the health care provider for purposes
of clarification and authentication of the medical certifica-
tion . . . after the employer has given the employee
an opportunity to cure any deficiencies . . . .” 29 C.F.R.
§ 825.307 (effective January 16, 2009); see Smith, 560 F.3d
at 698 n.4). Goelzer does not assert an independent
claim for relief based on any violation of this regulation,
nor does the FMLA provide one unless the violation
interfered with or restrained an employee’s rights under
the statute. See Smith, 560 F.3d at 698 n.4. Instead, Goelzer
asserts that Collard’s inquiry to her doctor supports her
claim that the defendants had retaliated against her for
using her FMLA leave.
  Even if Collard’s inquiry is put to the side, there is
enough evidence in the record for a jury to find that
the defendants fired Goelzer because she had utilized
FMLA leave and not because Payne wanted to hire a
new person with more skills. For example, Goelzer had
18                                            No. 09-2283

received positive performance reviews, and none
suggest on their face that they were the result of any
“lowered expectations” from Payne. Payne denies that
he made any oral derogatory comments regarding
Goelzer’s FMLA use, but that is for the jury to decide,
and in any event the jury might view his written com-
ments on Goelzer’s performance evaluations regarding
her use of FMLA leave as evidence that her use of
FMLA leave motivated the termination decision. Payne
also communicated the termination decision after he
knew Goelzer planned to be out for two months on
FMLA leave, and she had utilized a significant amount of
FMLA leave in the years preceding the decision. Although
the defendants disclaim any causal connection between
Goelzer’s requests for and use of FMLA leave and her
firing, we conclude that a jury could find otherwise. As
is the case with her interference theory, cf. Burnett, 472
F.3d at 482 (noting similarities of FMLA interference and
retaliation analyses in case before it), then, summary
judgment is not appropriate on her retaliation action,
and we reverse its grant in the defendants’ favor.


                  III. CONCLUSION
   The district court’s grant of summary judgment
is R EVERSED.




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