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

No. 05-3105
HAROLD CROUCH,
                                              Plaintiff-Appellant,
                                 v.

WHIRLPOOL CORPORATION,
                                              Defendant-Appellee.
                          ____________
            Appeal from the United States District Court
      for the Southern District of Indiana, Evansville Division.
              No. 04 C 10—Richard L. Young, Judge.
                          ____________
    ARGUED FEBRUARY 7, 2006—DECIDED APRIL 20, 2006
                    ____________


  Before BAUER, RIPPLE, and WOOD, Circuit Judges.
  BAUER, Circuit Judge. Whirlpool Corporation (Whirlpool)
terminated Harold Crouch after determining that he falsely
applied for a leave of absence. Crouch sued Whirlpool for
various violations of the Family and Medical Leave Act
(FMLA) and Employee Retirement Income Security Act
(ERISA). The district court granted summary judgment for
Whirlpool, finding in relevant part that its honest suspicion
of Crouch’s misuse of FMLA leave justified his termination.
We affirm.
2                                                No. 05-3105

                      I. Background
  Crouch and his fiancée, Ruth Ann Antey, have been
Whirlpool employees since 2000 and 1969, respectively.
Whirlpool employees sign up for vacation time by sub-
mitting request forms. Crouch and Antey attempted to
coordinate vacation time, but requests are granted based on
seniority. Due to her high seniority, Antey requested and
received vacation for the weeks of July 8, July 15, and
September 23 in 2002, and the weeks of June 30 and July 7
in 2003. Crouch submitted requests for all the
same periods, but, due to his low seniority, was granted his
requested vacation time only for the week of June 30, 2003.
  Crouch also requested disability leave, for which Whirl-
pool employees are eligible after ninety days of employment.
To qualify for disability leave, a doctor must certify that the
employee is disabled and unable to work. Under Whirlpool
policy, an employee who qualifies and applies for disability
leave automatically qualifies for FMLA leave. If the em-
ployee is granted both disability and FMLA leave, then both
time periods run concurrently.
  The dates Crouch requested for disability leave corre-
spond to the dates for which he was denied, and Antey
was granted, vacation time. For instance, after he was
denied vacation for the weeks of July 8 and July 15, 2002,
he requested and was granted disability leave from June 27
until July 21. Lisa Heard, the employee who handled the
requests, granted Crouch’s leave even though she received
his completed “Accident & Sickness Claim Form” (green
form) on July 12, long after the leave began. Again, after he
was denied vacation for the week of July 7, 2003, Crouch
requested disability leave from June 25 until July 15. Heard
approved the leave on June 25, based on Crouch’s “Request
for Leave of Absence” form and a note from his doctor,
Dr. Craig Haseman. Heard could not have received the
green form before June 30, because Dr. Haseman completed
No. 05-3105                                                 3

it on that day. Manager Debby Castrale testified that it was
Whirlpool’s general practice to grant leave based on a
doctor’s note certifying that the disability rendered the
employee unable to work. Crouch was out of work from
June 25 to July 15.
  Crouch’s supervisor noticed that the dates of his disability
leave in 2003 were the same dates for which he had sought
vacation. After Castrale was notified of the coincidence, she
discovered that Crouch had gone on disability leave in 2002
at the same time of year, because of the same reason (a
knee injured during yard work), and again following denied
vacation requests. As a result, Whirlpool hired a private
detective service, Dave Gainer Investigations (DGI), which
videotaped Crouch doing forty-eight minutes of yard work
on July 12.
  Following review of the tape, Whirlpool decided that
Crouch had engaged in activities inconsistent with his
leave. After returning to work on July 16, he was suspended
pending investigation of a possible violation of Shop Rule 1,
which provides that falsification of any company forms
constitutes just cause for termination. At a hearing on July
21, he stated no reason why he should not be fired and
admitted vacationing in Las Vegas during the leave.
Whirlpool then terminated him for falsely applying for a
leave of absence in violation of Shop Rule 1.
  Crouch sued Whirlpool, claiming violations of the FMLA
and ERISA. The district court granted summary judg-
ment for Whirlpool on Crouch’s claim that it violated
his substantive FMLA rights by not restoring him to his
prior position upon return from leave. Crouch appealed.


                      II. Discussion
  Crouch raises only one argument on appeal. He claims
that the district court erred in granting summary judgment
for Whirlpool because a genuine issue of material fact
4                                                 No. 05-3105

existed regarding the date that Whirlpool approved his
leave and, therefore, regarding the sincerity of its suspicion.
Summary judgment is appropriate when the record reveals
that “there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter
of law.” Fed. R. Civ. P. 56(c). We review the district court’s
grant of summary judgment de novo. Ogborn v. United
Food & Commercial Workers Union, Local No. 881, 305 F.3d
763, 767 (7th Cir. 2002).
  The FMLA grants eligible employees the right to take
leave of up to twelve work weeks in any twelve-month
period for a “serious health condition that makes the
employee unable to perform the functions of the position.”
29 U.S.C. § 2612(a)(1)(D). After return from a leave taken
“for the intended purpose of the leave,” the employee “shall
be entitled . . . to be restored by the employer to the position
of employment held by the employee when the leave com-
menced.” 29 U.S.C. § 2614(a)(1). The Act makes it unlawful
for an employer “to interfere with, restrain, or deny the
exercise of or the attempt to exercise” this right. 29 U.S.C.
§ 2615(a)(1).
  Whirlpool argues that its honest belief that Crouch had
violated company policy by fraudulently obtaining disability
leave justified his termination. Under the FMLA, an
employee “has no greater right to reinstatement or to other
benefits and conditions of employment than if the employee
had been continuously employed during the FMLA leave
period.” 29 C.F.R. § 825.216(a). Whirlpool had, under its
Shop Rule 1, just cause to terminate employees for falsifica-
tion of personnel or any other company forms. Because
Whirlpool could terminate Crouch for this violation while he
was at work, it could also terminate him for it while he was
on leave. See Kohls v. Beverly Enter. Wis., Inc., 259 F.3d
799, 804-05 (7th Cir. 2001).
  The FMLA return-to-work provision applies, in turn, only
to employees on leave from work “for the intended purpose
No. 05-3105                                                5

of the leave,” 29 U.S.C. § 2614(a)(1); an employer is under
no obligation to reinstate an employee who misuses disabil-
ity leave. Moreover, even an employer’s honest suspicion
that the employee was not using his medical leave for its
intended purpose is enough to defeat the employee’s
substantive rights FMLA claim. Kariotis v. Navistar Int’l
Transp. Corp., 131 F.3d 672, 681 (7th Cir. 1997). At sum-
mary judgment, Whirlpool demonstrated its honest belief
that Crouch was using his leave for vacation purposes
instead of the intended purpose, recovery from an injured
knee. Its suspicion resulted both from the coinciding dates
of his vacation and disability leave requests and from the
identical reasons he gave for the two disability leaves. The
surveillance video provided by DGI confirmed the suspicion.
The parties concede that Whirlpool’s honest suspicion of
misconduct defeats his claim at summary judgment if
Kariotis controls the outcome.
  Crouch nonetheless attempts to distinguish Kariotis on
timing grounds. In Kariotis, the employer began an investi-
gation of an employee after the employee’s leave had been
approved. 131 F.3d at 674. In this case, Crouch contends
that Whirlpool had not yet approved his leave when
Castrale noticed the coincidences and decided to hire DGI.
This timing, he claims, undermines Whirlpool’s honest
suspicion because under the FMLA and company policy it
could have required him to obtain a second medical opinion.
See 29 U.S.C. § 2613(c) (providing that the employer, at its
own expense, “may require” an employee to obtain a second
opinion). It is undisputed that Whirlpool’s suspicion arose
between June 25, when Crouch’s leave began, and “about
the 26th or 27th” of June, when Castrale, after noticing the
coincidences in his record, decided to hire DGI. If Whirlpool
approved the leave before June 27, when its suspicion arose
and its investigation commenced, then this case falls
squarely within Kariotis and Whirlpool prevails.
6                                               No. 05-3105

   Crouch requested leave from June 25 to July 15 on the
basis of “a serious health condition” that rendered him
“unable to perform the essential functions of” his job. On
June 25, Crouch submitted a “Request for Leave of Ab-
sence” form along with a note from Dr. Haseman. Because
Dr. Haseman only completed the green form on June 30,
Whirlpool could not have received it before that day. Crouch
notes that Whirlpool marked the “Request for Leave of
Absence” form in a manner requiring him “to furnish
medical certification of a serious health condition.” Accord-
ing to Crouch, this language created a condition precedent,
so that Whirlpool could not have approved his leave before
it received the green form on June 30.
  This argument, however, ignores the language that
immediately follows on the form, providing that, “we may
delay the commencement of your leave until the certifica-
tion is submitted.” This language enabled, but did not
obligate, Whirlpool to delay the commencement of Crouch’s
leave until receipt of the green form. No evidence sug-
gests that Whirlpool exercised this option to delay. To the
contrary, because Crouch concedes that he was out of
work from June 25 until July 15, it is self-evident that
Whirlpool did not delay his leave.
  Whirlpool presented evidence of its practice in grant-
ing disability leave. In her deposition, Castrale clarified
that a doctor’s note alone suffices for approval of leave:
    Q   If an individual—if an individual has the
        note—submits the note that says that I have a knee
        injury, I must be off for three weeks, is that enough
        to satisfy Whirlpool that the person needs to be off
        on disability leave?
    A   Yes. Generally, yes.
    Q   Okay. Also in that description I just gave, there
        is nothing in that note or nothing additional that
        should be in that note?
No. 05-3105                                                7

    A   As long as it’s certified by the doctor, no.
The green form, she testified, served only to classify the
leave period as paid. Because Crouch produced no evidence
to contradict this account, we must accept that it was
Whirlpool’s general practice to approve disability leave
based on a doctor’s note and prior to receipt of the green
form. See Dvorak v. Mostardi Platt Assocs, Inc., 289 F.3d
479, 487-88 (7th Cir. 2002).
  Additionally, Whirlpool followed this practice in deal-
ing with Crouch. Crouch does not dispute that Whirlpool
approved at the outset his disability leave from June 27
until July 21, 2002, even though it did not receive the green
form until July 12. Whirlpool adhered to the same practice
in 2003. On June 25, Crouch submitted Dr. Haseman’s note
to Heard. She gave him the “Request for Leave of Absence”
form, which he completed and submitted. In his deposition,
Crouch admitted that his leave was approved that very day:
    Q   . . . had Lisa Heard informed you that you’d been
        approved for that leave on the 20—25th through
        the 15th?
    A   I would say she probably had, yes.
    Q   So at—at that time you—you pretty much knew
        that that—that it was approved?
    Q   Yes, I think so.
Again, his absence from work from June 25 until July 15
substantiates the June 25 approval of his leave. No genuine
issue of material fact existed regarding the timing of
Whirlpool’s honest suspicion. See Buie v. Quad/ Graphics,
Inc., 366 F.3d 496, 509 (7th Cir. 2004) (holding that appel-
lant presented insufficient evidence at summary judgment
for a reasonable jury to find for him on his FMLA claim). As
a result, Whirlpool’s honest suspicion forecloses Crouch’s
FMLA claim, and summary judgment was proper. See
Kariotis, 131 F.3d at 681.
8                                            No. 05-3105

                   III. Conclusion
  For the foregoing reasons, the judgment of the district
court is AFFIRMED.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                  USCA-02-C-0072—4-20-06
