                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 07-3621
DIANA L. VAIL,
                                                Plaintiff-Appellant,
                                 v.

RAYBESTOS PRODUCTS COMPANY,
                                                Defendant-Appellee.
                          ____________
             Appeal from the United States District Court
     for the Southern District of Indiana, Indianapolis Division.
             No. 1:06-CV-544—Richard L. Young, Judge.
                          ____________
       ARGUED APRIL 18, 2008—DECIDED JULY 21, 2008
                          ____________


 Before BAUER, FLAUM, and WILLIAMS, Circuit Judges.
  FLAUM, Circuit Judge. Diana Vail is a former employee
of Raybestos Products Company. Vail suffers from mi-
graine headaches, a condition that required her periodi-
cally to take medical leave from her job there. In October
2005, Raybestos fired Vail for abusing her leave. Clandes-
tine surveillance had caused Raybestos to suspect that,
while supposedly on leave, Vail had actually been
working for a family business. This lawsuit followed,
alleging that Raybestos had violated both the Family
Medical Leave Act, 29 U.S.C. § 2601, et seq., and the terms
of a collective bargaining agreement covering Vail. Follow-
2                                             No. 07-3621

ing discovery, the district court granted Raybestos’s mo-
tion for summary judgment on both counts. This appeal
followed, and for the reasons set out below, we affirm.


                     I. Background
  All the relevant facts in this case occurred over the
summer and fall of 2005. At the time, Diana Vail worked
the third shift for Raybestos Products Company, a manu-
facturer of car parts with a factory in Crawfordsville,
Indiana. Working the third shift meant coming in at
10:45 at night and clocking out at 6:45 the next morning.
Vail was by all measures a good worker. But her job at
Raybestos was complicated by the fact that she suffered
from migraines, which, when present, would keep her
from work. Her supervisors were aware of her condi-
tion and had approved the use of intermittent medical
leave in April 2004.
  This case stems from Vail’s use of that leave from
May through September 2005. Over this period, she
received more than thirty-three days of approved leave.
Given that her migraines crept up on her on short
notice, Vail would call in just prior to her evening shift
to tell her supervisor that she would not be coming in.
As the summer progressed and Vail’s use of her leave
became more frequent, her supervisors at Raybestos
began to suspect that her requests were not entirely
genuine. This suspicion stemmed from the fact that
they knew Vail’s husband had a lawn-mowing business
and that Vail would help him out part-time. Among
her husband’s customers were several cemeteries,
which generally preferred to have their lawn-mowing
done at the quiet times during the day throughout the
No. 07-3621                                                3

workweek—less as a courtesy to its residents than to
those who would come to visit. The summer and fall
were prime mowing seasons, and Vail’s requests for
leave began to stack up, mostly coming during the work-
week when Vail’s husband would need to mow the
cemeteries. Putting all this together, Raybestos decided
to probe a little further into what Vail was doing while
on leave. To that end, Raybestos engaged the services
of Sergeant Largent of the Crawfordsville, Indiana
Police Department to monitor Vail’s activities while he
was off-duty.
   After her shift ended on the morning of October 6,
2005, Vail went to see Dr. Amber Hussain, her treating
physician. Dr. Hussain prescribed a different blood-
pressure medication to treat Vail’s migraines and in-
structed her not to work for twenty-four hours after
first taking the medication. As a result, Vail called prior
to her shift later that day to request leave, which
Raybestos granted. The next morning around 10:16 AM
Vail called Dr. Hussain and asked her to submit a note
to Raybestos explaining why she had been absent from
work, which she agreed to do. About ten minutes later,
Vail left her house and, under Sergeant Largent’s watch-
ful eye, filled up two lawn mowers at a nearby gas sta-
tion. She then proceeded to take both mowers to the New
Richmond Cemetery where she and another person mowed
the lawn. Upon seeing this, Sergeant Largent called the
director of human resources at Raybestos, Elizabeth
Sowers, to pass along his reconnaissance information.
That afternoon, Vail called in again saying that she
would be requesting medical leave for her shift be-
ginning October 7 due to the onset of a migraine. Prior
to this call, Raybestos had received Dr. Hussain’s note,
which it interpreted as another request for leave that night.
4                                               No. 07-3621

  The information relayed from Sergeant Largent con-
vinced Sowers that Vail was abusing her leave. In addi-
tion, Sowers thought that Vail had violated a specific
provision of the collective bargaining agreement
covering Vail’s union that banned physical labor for
profit while on approved leave. That provision stated:
    An employee shall lose his seniority and right to be
    on the seniority list: (f) If an employee requests and is
    granted a leave of absence from the Company and
    while on such leave of absence accepts and performs
    other gainful employment or provides physical labor
    to operate any type of business enterprise for profit
    unless specific permission has been granted by the
    Company.
Based on the perceived abuse of leave and the violation
of the collective-bargaining agreement, Sowers notified
Vail’s union representative of her decision to terminate
Vail. The union did not object.
  When Vail next reported to work, Vail’s manager in-
formed her that she was being terminated. The next day,
Vail met with Sowers, the superintendent of her depart-
ment and her union representative, Gary Bryant. Bryant
told Vail that based on his view of the evidence, it was
a “closed, shut case.” In the meeting, Vail heard
what Sergeant Largent had passed along to Sowers and
did not question or challenge the decision during the
meeting. She received a termination notice, which gave
the following as the reason for her termination:
    Management became aware on 10/07/05 that Ms. Vail
    was performing physical labor while on FMLA. As a
    result of this action Ms. Vail’s employment was termi-
    nated on 10/07/05 at 10:45 pm.
No. 07-3621                                              5

Vail signed this termination notice and did not file a
grievance using the procedures set out in the collective-
bargaining agreement. Instead, she filed this lawsuit
alleging that Raybestos had breached the collective-bar-
gaining agreement and violated the Family Medical
Leave Act, 29 U.S.C. § 1611, et seq., when it terminated
her. Following discovery, the district court granted
Raybestos’s motions for summary judgment on both
counts. The court reasoned that Vail’s failure to follow
the procedures set out in the collective-bargaining agree-
ment meant that she could not allege a breach in
court. And because Raybestos had an “honest suspicion”
that Vail was abusing her medical leave, it did not vio-
late the FMLA. This appeal followed.


                     II. Discussion
  Vail raises two issues on appeal: whether Raybestos
breached the terms of the collective bargaining agree-
ment covering her union and whether it interfered with
her rights under the FMLA by terminating her. The fol-
lowing sections discuss each in turn.


 A. Labor Management Relations Act Claim
  In the district court and here on appeal, Vail has argued
that Raybestos terminated her in violation of the col-
lective bargaining agreement covering her and her union.
Specifically, she claims that she did not “accept[ or]
perform[ ] other gainful employment or provide[ ]
physical labor” while on leave. Her theory is that her
“leave” ended when her shift did on the morning of
October 7, 2005, which is 6:45 AM. As a result, the
6                                               No. 07-3621

mowing that Sergeant Largent witnessed a few hours
later did not occur when she was on “leave.” The sus-
picion that her lawn work had violated the collective
bargaining agreement was, in her opinion, unfounded.
  It is unnecessary to pass over Vail’s interpretation of
the collective bargaining agreement because the claim is
not properly before us. This Court reviews the substan-
tive provisions of a union’s collective bargaining agree-
ment by virtue of Section 301(a) of the Labor Manage-
ment Relations Act. 29 U.S.C. § 185(a). That statute
gives the federal courts jurisdiction over “[s]uits for
violation of contracts between an employer and a labor
organization representing employees . . . without respect
to the amount in controversy or without regard to the
citizenship of the parties.” Id. As a general matter, how-
ever, exercising this power should be the last step in
resolving a dispute over the terms of a collective bargain-
ing agreement. Republic Steel Corp. v. Maddox, 379 U.S. 650,
652 (1965). Collective bargaining agreements frequently
provide private mechanisms for handling disputes. And
“individual employees wishing to assert contract griev-
ances must attempt use of the contract grievance pro-
cedure agreed upon by employer and union as the mode
of redress” before courts will get involved. Id.; Clayton v.
Intl. Union, United Auto., Aerospace, and Agricultural Imple-
ment Workers of America, 451 U.S. 679, 685-86 (1981). Other-
wise, the judiciary may marshal its scarce resources to
resolve disputes that the parties could have resolved
privately.
  Here, the collective bargaining agreement in dispute
had a grievance procedure that applied when Raybestos
terminated someone covered by the agreement. The
relevant provision states:
No. 07-3621                                               7

    When the Company determines to discharge an em-
    ployee for cause, [s]he shall be suspended immedi-
    ately and given a written notice of discharge, and
    the aggrieved employee, if [s]he feels [s]he has a
    grievance, shall file a written grievance with a mem-
    ber of the Union [and so on up to and including a
    hearing.]
Upon receiving her notice of termination, Vail chose not
to avail herself of this grievance procedure, instead
filing this lawsuit. Nor did she press her claim with the
union following her discharge, meaning she has not
“attempt[ed] use of the contract grievance procedure
agreed upon by employer and union as the mode of
redress.” Republic Steel Corp., 379 U.S. at 652.
  The general rule stated above has exceptions, and
unless one of these exceptions applies, Vail’s failure to
resolve her grievance privately means that we cannot do
so now. This Court has the discretion to hear disputes
concerning the terms of a collective bargaining agree-
ment notwithstanding the failure to exhaust when: (1) the
union has exhibited sufficient hostility to the employee’s
claim to preclude a fair hearing; (2) the internal proce-
dures are inadequate “either to reactivate the employee’s
grievance or to award h[er] the full relief [s]he seeks
under § 301”; or (3) the “exhaustion of internal pro-
cedures would unreasonably delay the employee’s op-
portunity to obtain a judicial hearing on the merits of his
claim.” Clayton, 451 U.S. at 689. Vail does not argue here
that any of these applies; so, for the reasons stated above,
her claim based on the collective bargaining agree-
ment necessarily fails.
8                                               No. 07-3621

    B. FMLA Claim
  Vail also challenges her termination on the grounds
that it interfered with her rights under the FMLA. The
FMLA entitles eligible employees “to a total of 12 work-
weeks of leave” for, among other things, “a serious
health condition that makes the employee unable to
perform the functions of the position of such employee.”
29 U.S.C. § 2612(a)(1)(D). The point is essentially to
freeze for twelve weeks the conditions of employment
enjoyed by the employee prior to taking her leave. Thus,
at the end of the leave, the employee can return to the
job she held prior, 29 U.S.C. § 2614(a)(1)(A), with the
same benefits she had when she left, id. at § 2614(a)(2). But
this “right to reinstatement is . . . not absolute.” Kohls v.
Beverly Enterprises Wisconsin, Inc., 259 F.3d 799, 804 (7th
Cir. 2001). The employee only gets the same employ-
ment terms she had when she left—nothing more. In
other words, the statute “set[s a] substantive floor[ ].”
Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711, 713 (7th
Cir. 1997). Aside from the twelve weeks of leave, it does
not confer “any right, benefit, or position of employ-
ment other than any right, benefit, or position to which
the employee would have been entitled had the em-
ployee not taken the leave.” Id. at § 2614(a)(3)(B).
  The issue in Vail’s case is whether she was abusing
her leave or whether Raybestos interfered with her
rights when it fired her. To make out a claim for inter-
ference, a plaintiff must show that she is an “eligible
employee,” 29 U.S.C. § 2611(2), who took leave “for the
intended purpose of the leave,” 29 U.S.C. § 2614(a)(1), and
whom the employer then denied a benefit as a result of
No. 07-3621                                                     9

that leave, 29 U.S.C. §§ 2614(a)(3), 2615(a)(1).1 Accord-
ingly, an employer can defeat an interference claim by
showing, among other things, that the employee did not
take leave “for the intended purpose.” Crouch v. Whirlpool
Corp., 447 F.3d 984, 986 (7th Cir. 2006) (“[A]n employer
is under no obligation to reinstate an employee who
misuses disability leave.”). We have interpreted this to
mean that an employer has not violated the FMLA if it
refused to reinstate the employee based on an “honest
suspicion” that the she was abusing her leave. Id.; Kariotis,
131 F.3d 680-81.
  Here, Raybestos has clearly made this showing. Though
the use of an off-duty police officer to follow an em-
ployee on leave may not be preferred employer behavior,
employers have certainly gone further than Raybestos.
See, e.g., Kariotis, 131 F.3d at 681 (hiring private investiga-
tors to videotape employee). In any event, the informa-
tion gleaned from Sergeant Largent’s reconnaissance
was sufficient to give Raybestos an “honest suspicion”
that Vail was not using her leave “for the intended pur-
pose.” Vail had taken medical leave for her October 6,
2005 evening shift. The next morning, the off-duty police



1
  Raybestos argues that Vail’s FMLA claim is really a dressed-
up version of her collective-bargaining-agreement claim. But the
district court never heard this argument, which means it is
waived. Weigel v. Target Stores, 122 F.3d 461, 464 (7th Cir. 1997)
(“[W]e must take [the] case as she presented it to the district
court.”). Besides, an employer does not interfere with FMLA
rights if it had an “honest suspicion” that the employee was
abusing her leave. Showing this does not depend on resolving
the relative contractual rights of the parties, such as by inter-
preting the terms of the collective bargaining agreement.
10                                            No. 07-3621

officer saw Vail working for her husband’s lawn-mowing
business. Raybestos received this information after it
already suspected that Vail was gaming her leave in order
to work for her husband’s business. So when it heard
information consistent with what they suspected she
was doing while on leave, Raybestos decided to ter-
minate her. Vail’s call later that day—after a day of mow-
ing under Sergeant Largent’s gaze—stoked this suspi-
cion. As a result of this “honest suspicion,” Raybestos
did not violate Vail’s rights under the FMLA.


                    III. Conclusion
  For the foregoing reasons, we AFFIRM the district
court’s grant of summary judgment.




                  USCA-02-C-0072—7-21-08
