                             In the

United States Court of Appeals
               For the Seventh Circuit

No. 11-3420

D ARYL S CRUGGS,
                                                 Plaintiff-Appellant,
                                 v.

C ARRIER C ORPORATION,
                                                Defendant-Appellee.


             Appeal from the United States District Court
     for the Southern District of Indiana, Indianapolis Division.
            No. 1:09-CV-984—Sarah Evans Barker, Judge.



      A RGUED A PRIL 17, 2012—D ECIDED A UGUST 3, 2012




 Before B AUER, K ANNE, and S YKES, Circuit Judges.
  K ANNE, Circuit Judge. In 2006, Carrier Corporation set
out to remedy an excessive employee absenteeism
problem which had developed at its Indianapolis manu-
facturing plant. As part of its plan, Carrier hired a
private investigator to follow approximately thirty-five
employees who were suspected of abusing the company’s
leave policies. One of these employees was Daryl Scruggs,
who was authorized to take intermittent leave under the
2                                             No. 11-3420

Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601
et seq., to care for his mother in a nursing home. After
surveillance revealed that Scruggs never left his home
on a day he requested FMLA leave, Carrier suspended
Scruggs pending further investigation. Scruggs sub-
mitted several documents to demonstrate that he picked
up his mother from the nursing home on that day and
took her to a doctor’s appointment, but Carrier believed
the documents were suspicious and inconsistent. Ac-
cordingly, Carrier terminated Scruggs for misusing
his FMLA leave. Because we find that Carrier had an
“honest suspicion” that Scruggs misused his FMLA
leave, we affirm the district court’s grant of summary
judgment in favor of Carrier.


                    I. B ACKGROUND
   Carrier manufactures refrigeration, air conditioning,
and heating equipment. Scruggs worked for Carrier in
its Indianapolis manufacturing plant for approximately
twenty-one years, from 1986 to 2007. At the time of
his termination, Scruggs worked as a brazier1 four days
a week from 6:30 a.m. to 4:30 p.m. In 2004, Scruggs’s
mother was moved to a nursing home, requiring
Scruggs to seek intermittent FMLA leave to assist in his
mother’s care. From 2004 to 2007, Scruggs submitted
FMLA certification paperwork on five occasions. All but
the last of these certifications permitted Scruggs to take


1
  According to Carrier, a brazier is “an employee who
torches parts onto fan coils.” (Appellee’s Br. at 3-4.)
No. 11-3420                                              3

leave for nursing home visits and transportation to
doctor’s appointments. The fifth certification, which was
in effect at the time of his termination, permitted Scruggs
to take his mother to doctor’s appointments once every
six months and did not mention nursing home visits.
Carrier approved all of Scruggs’s requests for FMLA leave.
  In 2006, Carrier implemented a new plan to combat
employee absenteeism and suspected FMLA abuse. First,
Carrier centralized the processing of all medical-leave
requests, including FMLA leave, by transferring respon-
sibility to the Medical Department. Previously, the
Human Resources Department handled FMLA requests,
while the Medical Department handled all other medical-
leave requests. Next, Carrier instituted new procedures
for employees taking FMLA leave: rather than simply
inform their supervisor they were taking leave, em-
ployees were required to sign out with the Medical De-
partment on days FMLA leave was used. Finally, Carrier
hired McGough and Associates (“McGough”) to con-
duct surveillance on approximately thirty-five employees
who were suspected of misusing leave or had a high
number of unexcused absences.
   At Carrier’s direction, McGough followed Scruggs
on three occasions. McGough found no evidence that
Scruggs was misusing his FMLA leave on either of the
first two occasions. On July 24, 2007, Carrier requested
that McGough follow Scruggs for a third time after
Scruggs reported to Carrier that he was taking FMLA
leave for the entire day. An investigator set up video
surveillance in front of Scruggs’s home from approxi-
4                                               No. 11-3420

mately 8:00 a.m. to 4:30 p.m. During this time, the investi-
gator did not observe either of Scruggs’s vehicles leave
the driveway, and saw Scruggs leave his house only once,
when he appeared briefly to retrieve mail from his mail-
box. Scruggs returned to work the following day with-
out incident, and Carrier approved Scruggs’s subse-
quent requests to use FMLA leave on July 26, July 27,
and August 8.
  McGough provided its report and the video surveillance
from July 24 to Carrier on August 7. After reviewing
the video, Carrier’s Senior Labor Relations Manager
Rejeana Pendleton and Labor Relations Representative
Nicholas Gaughan believed that Scruggs did not leave
his home at all on July 24. Accordingly, Pendleton and
Gaughan met with Scruggs on August 9 to allow
Scruggs an opportunity to explain his absence. Scruggs
stated that he could not recall the events of July 24, but
he did not abuse his FMLA leave and was helping his
mother that day. Gaughan told Scruggs that he was
suspended pending further investigation for his viola-
tion of Plant Rule 10 (falsifying company documents).
According to Carrier, Plant Rule 10 is the mechanism
used to terminate an employee who misuses FMLA leave.
  Following his suspension, Scruggs provided documenta-
tion from his mother’s doctor and the nursing home as
evidence that he was assisting his mother on July 24. This
evidence included: (1) a letter dated August 9 from the
business office manager of the nursing home stating that
Scruggs was at the nursing home on July 24 to take his
mother out of the facility for appointments; (2) a sign-out
No. 11-3420                                              5

sheet from the nursing home noting that Scruggs signed
his mother out on July 24 at 11:30 a.m.; and (3) three
nearly identical notes from Dr. R. Jeffrey Price, dated
August 17. The first note from Dr. Price stated that
Scruggs is his mother’s only means of transportation
and he mistakenly brought her to a doctor’s appointment
on July 24, although the appointment was scheduled
for September 2007. The second note was the same,
except for an additional notation which indicated that
Scruggs was at the doctor’s office sometime between
10:00 and 10:30 a.m. The third note added “per Dr. R.
Jeffrey Price” to the prior notation.
  Pendleton and Gaughan reviewed Scruggs’s documenta-
tion and compared it to their own records and the sur-
veillance video. They observed that Scruggs had signed
his mother out on the sign-out sheet provided by the
nursing home only three or four times in 2007, al-
though during that same time period he requested FMLA
leave on several other occasions. Further, although
Scruggs insisted he was the only one who could
transport his mother, others had signed his mother out.
Additionally, the documentation from the nursing
home and the doctor’s office was inconsistent, as
Scruggs took his mother to the doctor at approximately
10:30 a.m., but did not check her out of the nursing
home until 11:30 a.m.
  After considering all of the evidence, Carrier terminated
Scruggs for violating Plant Rule 10 on August 17, 2007.
A grievance hearing took place on August 23. During
this hearing, Scruggs explained that, on the morning of
6                                               No. 11-3420

July 24, his brother picked him up at 8:00 a.m. Scruggs
left his house through the back door. Scruggs and his
brother then picked up their mother from the nursing
home, took her out to breakfast, and transported her to
the doctor’s office. Afterwards, Scruggs was dropped off
at his neighbor’s house at 11:00 a.m. and returned home
through his back door. Scruggs could not recall the
name of his neighbor when questioned. He also stated
that he believed it was too late in the day to return to
work for the remainder of his shift. When questioned as
to why the nursing home sign-out sheet noted he
checked his mother out at 11:30 a.m., Scruggs stated
that the sign-out sheet was wrong. Pendleton did not
find Scruggs’s account to be credible and denied
his grievance.
  Scruggs filed suit in state court on July 21, 2009, and
Carrier removed the case to federal court on August 10,
2009. Scruggs’s complaint asserts claims of interference
and retaliation under the FMLA. Following discovery,
the parties filed cross-motions for summary judgment.
The district court considered these motions and held
that, although there was a question of fact as to
whether Scruggs actually used his FMLA leave for an
approved purpose, it was undisputed that Carrier had
an “honest suspicion” that Scruggs misused his FMLA
leave. See Crouch v. Whirlpool Corp., 447 F.3d 984, 986 (7th
Cir. 2006) (“[E]ven 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.”). Accordingly, the
No. 11-3420                                               7

district court granted summary judgment in favor of
Carrier. Scruggs timely appealed.


                       II. A NALYSIS
  We review a district court’s order on cross-motions
for summary judgment de novo. Clarendon Nat’l Ins. Co. v.
Medina, 645 F.3d 928, 933 (7th Cir. 2011). We view all
facts and draw all reasonable inferences in favor of the
party against whom summary judgment was granted.
Davis v. Time Warner Cable of Se. Wis., L.P., 651 F.3d 664,
671 (7th Cir. 2011). Here, that party is Scruggs. Thus,
summary judgment is appropriate only if Carrier demon-
strates “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a).
  Under the FMLA, an eligible employee is entitled to as
many as twelve weeks of leave per year for a variety of
reasons, including “to care for the spouse, or a son, daugh-
ter, or parent, of the employee, if such spouse, son, daugh-
ter, or parent has a serious health condition.” 29 U.S.C.
§ 2612(a)(1)(C). Such leave may be taken intermittently.
Id. § 2612(b)(1). It is undisputed that Scruggs was an
eligible employee who requested FMLA leave intermit-
tently from 2004 to 2007 to care for his ailing mother.
  An employer may not “interfere with, restrain, or deny
the exercise of or the attempt to exercise, any right pro-
vided under [the FMLA].” Id. § 2615(a)(1). In addi-
tion, “[i]t shall be unlawful for any employer to dis-
charge or in any other manner discriminate against
8                                              No. 11-3420

any individual for opposing any practice made
unlawful by [the FMLA].” Id. § 2615(a)(2). Scruggs
alleges that Carrier violated both of these provisions
by interfering with his FMLA rights and retaliating
against him for requesting and taking FMLA leave.


A. Interference Claim
  Scruggs alleges that Carrier’s decision to terminate him
interfered with his right to reinstatement and his right
to continue to take intermittent leave to care for his
mother. “To prevail on a claim for FMLA interference,
the employee must prove that: (1) he was eligible for
FMLA protections; (2) his employer was covered by the
FMLA; (3) he was entitled to leave under the FMLA; (4) he
provided sufficient notice of his intent to take FMLA
leave; and (5) his employer denied him FMLA benefits
to which he was entitled.” Righi v. SMC Corp., 632 F.3d
404, 408 (7th Cir. 2011). An interference claim does not
require an employee to prove discriminatory intent on
the part of the employer; rather, such a claim “requires
only proof that the employer denied the employee his or
her entitlements under the Act.” Shaffer v. Am. Med. Ass’n,
662 F.3d 439, 443 (7th Cir. 2011) (quoting Goelzer v.
Sheboygan Cnty., Wis., 604 F.3d 987, 995 (7th Cir. 2010)).
  An employee who takes leave under the FMLA is
only entitled to reinstatement if he “takes leave under
[the FMLA] for the intended purpose of the leave.”
29 U.S.C. § 2614(a)(1). Thus, “an employer can defeat an
interference claim by showing, among other things,
that the employee did not take leave ‘for the intended
No. 11-3420                                                 9

purpose.’ ” Vail v. Raybestos Prods. Co., 533 F.3d 904, 909
(7th Cir. 2008) (quoting Crouch, 447 F.3d at 986). In the
Seventh Circuit, because an employee has “no greater
right to reinstatement or to other benefits and conditions
of employment than if the employee had been continu-
ously employed,” 29 C.F.R. § 825.216(a), an employer
need only show that “it refused to reinstate the employee
based on an ‘honest suspicion’ that she was abusing
her leave,” Vail, 533 F.3d at 909. Accord Kariotis v. Navistar
Int’l Transp. Corp., 131 F.3d 672, 681 (7th Cir. 1997)
(“In other words, because Navistar lawfully could have
terminated Kariotis after suspecting she committed
fraud while on duty, the company can discharge her
after suspecting she committed fraud while on leave.”).
We agree with the district court that Carrier has
shown that it held an “honest suspicion” that Scruggs
was abusing his FMLA leave.
  In Vail, we found that an employer held an “honest
suspicion” that an employee suffering from migraines
misused her FMLA leave after an off-duty police officer
hired by the employer saw the employee performing
manual labor on a day she requested FMLA leave.
533 F.3d at 909-10 (“[T]he information gleaned from
Sergeant Largent’s reconnaissance was sufficient to give
Raybestos an ‘honest suspicion’ that Vail was not using
her leave ‘for the intended purpose.’ ”). Similarly, in
Kariotis, the company Navistar hired an investigator to
videotape an employee recovering from knee surgery.
131 F.3d at 675. These videotapes revealed the em-
ployee “walking, driving, sitting, bending, and shop-
ping.” Id. Based solely on Navistar’s prior suspicions,
10                                               No. 11-3420

the videotapes, and a short conversation with the em-
ployee, Navistar chose to terminate the employee for
misusing her disability leave. Id. Although Navistar
never contacted the employee’s physicians, and we noted
that the investigation “left something to be desired,” id.,
we held that Navistar had an “honest suspicion” that
the employee was misusing her leave, thus foreclosing
her FMLA claim, id. at 680-81.
  Here, Carrier suspected Scruggs was misusing his
FMLA leave based upon his prior absenteeism. Accord-
ingly, Carrier hired a private investigator to observe
Scruggs on a day that he requested FMLA leave to care
for his mother. The video surveillance revealed that
Scruggs did not appear to leave his house that day.
When Carrier questioned Scruggs, he could not recall
what he did on that day, but stated that he did not
misuse his FMLA leave. Although Scruggs later
provided documentation from his mother’s nursing
home and doctor’s office, this paperwork only raised
further questions for Carrier. The documents Scruggs
produced were facially inconsistent and conflicted with
Carrier’s internal paperwork. Taken together, this was
enough for Carrier to have an “honest suspicion” that
Scruggs misused his FMLA leave on July 24, 2007. Al-
though Carrier could have conducted a more thorough
investigation, as Scruggs fervently argues, it was not
required to do so. See Kariotis, 131 F.3d at 681. Accordingly,
Carrier did not violate Scruggs’s FMLA rights because
it honestly believed Scruggs was not using his leave
for its intended purpose, see Vail, 533 F.3d at 909, and
No. 11-3420                                                 11

the district court properly granted summary judgment
in favor of Carrier on Scruggs’s interference claim.


B. Retaliation Claim
  Scruggs also claims that Carrier retaliated against him
for using his FMLA leave. “An employee who alleges
that her employer retaliated against her for exercising
her rights under the FMLA can proceed under the direct
or indirect methods of proof familiar from employ-
ment discrimination litigation.” Smith v. Hope Sch., 560
F.3d 694, 702 (7th Cir. 2009). Scruggs is proceeding under
the direct method, so he “must present evidence of (1) a
statutorily protected activity; (2) a materially adverse
action taken by the employer; and (3) a causal connection
between the two.” Makowski v. SmithAmundsen LLC, 662
F.3d 818, 824 (7th Cir. 2011) (quoting Caskey v. Colgate-
Palmolive Co., 535 F.3d 585, 593 (7th Cir. 2008)). “A plaintiff
can prevail under the direct method by showing an
admission of discrimination or by ‘constructing a con-
vincing mosaic of circumstantial evidence that allows
a jury to infer intentional discrimination by the
decisionmaker.’ ” Ridings v. Riverside Med. Ctr., 537 F.3d
755, 771 (7th Cir. 2008) (quoting Phelan v. Cook Cnty., 463
F.3d 773, 779 (7th Cir. 2006)). Carrier argues that Scruggs
cannot establish a causal connection between his use
of FMLA leave and his termination.
 Carrier terminated Scruggs on August 17, 2007, for
misusing his FMLA leave in violation of Plant Rule 10.
This ‘materially adverse action’ occurred over three
weeks after Scruggs requested leave on July 24. Scruggs’s
12                                              No. 11-3420

request for FMLA leave was not denied, nor was he
prohibited from returning to work after taking his ap-
proved FMLA leave. It was not until August 7, when
Carrier received a report from its investigator in-
dicating that Scruggs had misused his FMLA leave on
July 24, that Carrier began taking steps to terminate
Scruggs. As we have already noted, Carrier held an
‘honest suspicion’ that Scruggs was misusing his
FMLA leave at the time it made the decision to
terminate him. We cannot conclude from these facts
that Carrier intentionally discriminated against Scruggs
for taking FMLA leave. If we were to hold otherwise,
virtually any FMLA plaintiff fired for misusing his
leave would be able to state a claim for retaliation.
   Scruggs likens his case to the facts presented in Burnett
v. LFW Inc., 472 F.3d 471 (7th Cir. 2006). In that case,
Burnett gave sufficient notice to his employer over a
period of four months that he was suffering from a
serious medical condition, specifically, prostate cancer.
Id. at 482. Burnett engaged in protected activity by re-
questing two weeks off because he would not be able
to perform the essential functions of his job. Id. Prior to
his scheduled time off, Burnett requested to leave work
one day because he “felt sick.” Id. at 476. After leaving
work without his supervisor’s permission, Burnett
was terminated for insubordination. Id. We held that
these facts “suggest a direct, causal connection between
the protected activity and adverse action.” Id. at 482. We
noted that the employer’s “classification of Burnett’s
conduct as insubordinate stems in large measure from
its mistaken belief that Burnett was not entitled to
No. 11-3420                                              13

FMLA leave,” and “Burnett’s alleged insubordinate act
was his request for FMLA leave, or at least a key compo-
nent of it.” Id. Accordingly, we held that a jury ques-
tion remained as to Burnett’s retaliation claim. Id.
  Scruggs claims that his case is similar to Burnett because
Carrier’s reason for terminating him was his protected
activity. But there is a key distinction between this case
and Burnett. Burnett requested and was denied leave at
the same time he was deemed insubordinate and termi-
nated. In contrast, Scruggs requested and was granted
leave, took his approved leave, and returned to work the
following day. He was also granted FMLA leave on
three additional days following July 24, 2007. It was not
until after Carrier received evidence of potential mis-
conduct that Scruggs was terminated. Therefore, the
reason for Scruggs’s termination was not the same as
his protected activity, and Burnett’s reasoning does not
apply here. The district court properly granted sum-
mary judgment in favor of Carrier.


                    III. C ONCLUSION
  For the foregoing reasons, we A FFIRM the judgment of
the district court.




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