Kohls v. Beverly Enterprises WI

• Decision Date: 01 August 2001
• Docket Number: No. 00-2064,00-2064
• Citation: 259 F.3d 799
• Parties: (7th Cir. 2001) Amy Kohls, Plaintiff-Appellant, v. Beverly Enterprises Wisconsin, Inc. d/b/a Maple Manor Healthcare, Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 799

259 F.3d 799 (7th Cir. 2001)

Amy Kohls, Plaintiff-Appellant, v. Beverly Enterprises Wisconsin, Inc. d/b/a Maple Manor Healthcare, Defendant-Appellee.

No. 00-2064

In the United States Court of Appeals For the Seventh Circuit

Argued October 31, 2000

Decided August 1, 2001

Appeal from the United States District Court for the Western District of Wisconsin. No. 99 C 442--Barbara B. Crabb, Chief Judge. [Copyrighted Material Omitted]

Before Bauer, Kanne, and Rovner, Circuit Judges.

Kanne, Circuit Judge.

Plaintiff- appellant Amy Kohls claims that her employer, Beverly Enterprises Wisconsin, Inc. d/b/a Maple Manor Healthcare ("Beverly"), failed to reinstate her at the conclusion of her maternity leave in violation of the Family and Medical Leave Act ("FMLA").¹ We find that Kohls has not proven that Beverly violated her rights under the FMLA and thus we affirm the district court's grant of summary judgment for Beverly.

I. History

Beverly owned and operated Maple Manor Healthcare ("the Manor"), a residential nursing home and rehabilitation facility located in New Richmond, Wisconsin. Kohls began working as the Manor's Activities Director in May 1997 and was responsible for planning, implementing, and overseeing activities for the Manor residents. She was a full-time, at-will employee. During her time at the Manor, several different executive directors reviewed Kohls' performance, including Bob Larson, Becky Olson, and Luanne Flick. Though Larson gave plaintiff an overall rating of above average in May 1998, he did note that she needed to improve her performance in developing the weekend activity schedule and increasing volunteer membership. Olson served as interim executive director during the summer of 1998, and she classified plaintiff's work as "marginal." Flick became the executive director in August 1998 and made favorable comments about plaintiff's job performance.

During the summer of 1998, the State of Wisconsin conducted a survey of the Manor that identified deficiencies in all of the Manor's departments, including the activities department. For example, residents had complained to the surveyors about the lack of activities at night and on the weekends. Flick met with Kohls on August 17, 1998 to review the survey results, and they discussed the lack of evening programming, the general lack of program variety, and the fact that mail was not distributed on the weekends. Plaintiff acknowledged that she could improve on these areas, and she agreed to arrange Saturday mail delivery and to work two evenings a week to allow for more evening activities. Flick mentioned some concern about the amount of programming but did not request Kohls to make changes. The Resident Council report from September 18, 1998 indicated that new weekend programs were implemented and that the residents were pleased.

Towards the end of September, Kohls requested FMLA leave from September 28, 1998 until December 1, 1998, which Flick granted. Flick was receptive to the request: she did not question Kohls about the dates selected, hassle her about the length of time requested, or make any disparaging comments. Beverly hired a full-time, temporary replacement, Shelly Price, to fill Kohls' position while she was on leave. Several residents, residents' family members, and Beverly employees complained to Price about Kohls' programming, though Price did not share any of the comments with Flick. Price herself criticized the quantity and quality of Kohls' programs and implemented numerous changes: she adapted some of Kohls' programs, stopped using some, and added others. At least four residents told Price they did not want her to leave because they preferred her programming to Kohls'. Flick commented two or three times during Kohls' maternity leave that she wished Price could be the Manor's permanent Activities Director.

Flick asserts that, prior to the time Kohls took leave, nursing assistants, several residents, and several residents' family members communicated their dissatisfaction with the activities program at the Manor. Flick did not make any written record of the complaints, however, and could only recall the name of one such person. Flick also asserts that games and activity supplies were outdated or worn out and had to be replaced by Price, that Kohls did not recruit a sufficient number of volunteers, and that Kohls had no accessible list of volunteers. Kohls admitted that there was no active volunteer listing available, but she contests the other accusations. Price's deposition testimony indicates support for Kohls' view: Price did not recall purchasing any new games or supplies, and she felt that the number of volunteers was not a concern (though two volunteers started while she was director).

Shortly after Kohls began her leave, Flick became concerned about the status of the Resident Council checking account, a trust fund containing residents' money for which Kohls maintained the checkbook. As it turned out, Kohls had told Price that there were errors in the checkbook just prior to the time she took leave. Kohls has since admitted that she did not record dates and check numbers for every entry, that she did not routinely reconcile the bank statements against the check register, that she threw away the bank statements rather than maintain a record, that her checkbook entries did not explain the purpose for checks written to "cash," and that a check for $30.93 was not accounted for. Because the account is considered a trust account, Flick was legally required to report any suspected misappropriation of funds but she did not do so, nor did she contact Kohls about her concerns.

Flick called Kohls twice during her maternity leave to ask her to attend certain meetings so she would be up to speed when she returned to work. During the first call, Flick told Kohls she would like her to attend an all-day conference in River Falls, Wisconsin. Kohls agreed to attend and brought her newborn baby with her. Then, in mid- November, Flick asked Kohls to attend another all-day conference, this time in Hayward, Wisconsin. Kohls told Flick she did not think she could go, as it would entail twelve hours away from her nursing infant. Flick became abrupt and retorted, "How is that going to change in two weeks when you come back?" Notwithstanding the outburst, Flick agreed that Kohls could attend the same conference in December after she returned to work.

Prior to her return, Kohls received a call from Olson advising her to apply elsewhere for employment. Olson told Kohls that she thought Flick "was going to give [Kohls] a hard time when she came back." Nonetheless, Kohls returned to work on November 30, 1998. She resumed her normal duties and went to a departmental meeting at 9 a.m. Afterward, Flick asked Kohls if she would be able to meet later that day. During that meeting, at which Olson was present, Flick asked Kohls if she had applied for another job. Kohls replied in the negative. Flick then informed Kohls that she had received complaints from relatives of residents and volunteers about Kohls' work as Activities Director. Flick also accused her of embezzlement, basing the accusation on the fact that dates and check numbers were missing from the check register and that the balance in the checkbook was different from the bank's balance by $70.86. Flick presented Kohls with a copy of the checkbook but did not give Kohls any time to look through it. When Flick was not satisfied with Kohls' explanation of the checkbook situation, Flick told Kohls that she had the option to resign or to be terminated because of misappropriation and mishandling of funds. Kohls initially agreed to resign but later rescinded the resignation and told Flick that she would have to fire her. Flick did so, citing the alleged misappropriation and job performance as reasons for the termination.²

At all relevant times, Beverly had a written discipline policy dividing prohibited behavior into two categories. Misappropriation of funds is characterized as a category one violation while performance concerns are a category two violation. In the event of a category one violation, the policy requires an employee to be immediately suspended without pay pending an investigation. The investigation must include interviews with all witnesses as well as an opportu nity for the employee to give her side of the story. Beverly's Human Resources Manager must also be consulted and advised of the investigation's results. The Executive Director ultimately decides whether discharge is appropriate, though the HR Manager has input into the decision. For category one violations, progressive discipline is to be employed so that the employee has the opportunity to change his or her behavior. The policy states, however, that these disciplinary policies are not absolute.

The discipline and counseling procedures set forth below articulate factors and procedures that Beverly believes are generally appropriate to govern employee conduct and performance. Provisions of these procedures are not, however, absolute rules. In each case of misconduct or poor performance, the appropriate discipline or counseling action will be determined at Beverly's discretion on the basis of the particular facts or circumstances.

Beverly also has a separate discharge policy which states: "No discharge will occur without the proper investigation of the misconduct to determine if discharge is appropriate." What constitutes a proper investigation is not specified.

Kohls filed suit in Wisconsin state court, alleging that Beverly failed to restore her to the position of Activities Director in violation of the Family and Medical Leave Act, 29 U.S.C. sec. 2614(a)(1). Beverly removed to the United States District Court for the Western District of Wisconsin pursuant to 28 U.S.C. sec. 1441, and subsequently moved for summary judgment. In reviewing defendant's motion, the district court focused on "whether plaintiff had...