Kevin Cracco v. Vitran Express Inc ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3827
K EVIN C RACCO,
Plaintiff-Appellant,
v.
V ITRAN E XPRESS, INCORPORATED ,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 C 756—Samuel Der-Yeghiayan, Judge.
A RGUED S EPTEMBER 26, 2008—D ECIDED M ARCH 17, 2009
Before R IPPLE, M ANION and SYKES, Circuit Judges.
R IPPLE, Circuit Judge. Kevin Cracco brought this action
against Vitran Express, Inc. (“Vitran”) for violating the
Family Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601-
2654, by terminating his employment upon his return
from a medical leave. The district court entered an order
of default against Vitran. However, before the district
court entered a final judgment, Vitran filed a motion to
vacate the default order. The district court granted
that motion and, later, granted summary judgment in
2 No. 07-3827
favor of Vitran. Mr. Cracco filed a timely appeal. For
the reasons set forth in this opinion, we affirm the judg-
ment of the district court.
I
BACKGROUND
A.
In 1991, Vitran, a trucking company, hired Mr. Cracco.
He later became a Service Center Manager for Vitran’s
Markham, Illinois terminal. On October 5, 2006, while
serving in that capacity, Mr. Cracco was hospitalized
with a serious health condition that rendered him tempo-
rarily unable to work. He requested approval from Vitran
to take medical leave under the FMLA; Vitran approved
his leave and, during the leave period, continued to
pay him as provided by the company’s salary continu-
ation policy.1
Vitran hired several replacement employees to cover
Mr. Cracco’s job responsibilities. According to Vitran, as
these employees undertook Mr. Cracco’s responsibilities,
they discovered several problems. “[T]he terminal was
disorganized, employees were not following procedures,
freight was sitting on the dock, damaged freight was
hidden in trailers, safety concerns were noted, customers
1
Under the policy, Vitran employees taking FMLA leave
receive twenty-eight days of full pay and fifty percent pay
thereafter.
No. 07-3827 3
were complaining and overtime was not being handled
properly.” R.38 at ¶ 33.
One of the replacement employees, Steve Perry, discov-
ered discrepancies in the freight documents maintained
by Mr. Cracco. He noticed that there were several ship-
ments that Mr. Cracco had entered into the system as
“waiting for an appointment”; however, the ship-
ments were not appointment deliveries, but, rather, were
deliveries that had not been made on time. Appellee Br. 7.
Perry also noticed that Mr. Cracco had entered many of
the freight deliveries as “delivered clear” when, in fact,
the freight delivery receipt showed that they were deliv-
ered late, damaged or incomplete. Id. at 8. Mr. Cracco
disputes that he falsified any records.
Perry subsequently contacted John Hartman, Vitran’s
Vice-President of Operations, regarding the discrepancies.
Hartman examined a thirty-day sample of freight delivery
receipts and compared them to the corresponding com-
puter entries made under Mr. Cracco’s computer log-in
code. The freight delivery receipts reflect the date and
actual quality of the delivery.
Hartman’s examination uncovered problems similar to
those described by Perry. He also discovered that
Mr. Cracco had identified shipments as “drop” deliveries
to customers who never received deliveries in such a
fashion. Appellee Br. 9. In addition, Hartman observed
that the majority of Mr. Cracco’s computer entries were
late at night and within minutes of each other. These
findings led Hartman to conclude that Mr. Cracco’s
entries were not errors, but, rather, Mr. Cracco’s deliberate
attempts to disguise late and damaged deliveries.
4 No. 07-3827
Hartman traveled to the Markham terminal where he
observed the problems that Perry had described. He
later spoke with Chuck Weber, a former Regional Vice-
President and one of Mr. Cracco’s past supervisors, who
stated that, in 2005, Mr. Cracco had refused to admit
that he was responsible for problems at the terminal.
Hartman discussed his findings with employees in
Vitran’s Human Resources department and with
Richard Gray, the Assistant Vice-President of Operations.
At Hartman’s request, Gray reviewed the sample of
freight records and agreed with Hartman’s findings. On
November 13, 2006, the day that Mr. Cracco returned
from medical leave, Vitran terminated his employment.
B.
Mr. Cracco brought this action against Vitran, alleging
that the company interfered with his FMLA rights
by failing to restore him to his previous position and
retaliating against him by terminating his employment.
Vitran did not file a response, and the district court conse-
quently entered an order of default against Vitran. How-
ever, prior to the court’s entry of final judgment, Vitran
filed a motion to vacate the default order. Vitran initially
told the court that it had no record of having received
the summons and complaint from its registered agent.
Later, it clarified that its registered agent had received
the summons and complaint, but that the documents
had been forwarded to employees who did not under-
stand their significance. The district court granted
Vitran’s motion and vacated the order of default.
No. 07-3827 5
Vitran later moved for summary judgment and filed a
Local Rule 56.1(a) statement. In Paragraph 33 of its state-
ment of material facts, Vitran stated:
When [the replacement] employees arrived at the
Markham terminal, they discovered several prob-
lems. The terminal was disorganized, employees
were not following procedures, freight was sitting on
the dock, damaged freight was hidden in trailers,
safety concerns were noted, customers were com-
plaining and overtime was not being handled properly.
R.38 at ¶ 33. In his response, Mr. Cracco objected to
Paragraph 33 on the ground that it violated Rule 56.1
because it was not short and concise, but, rather, consti-
tuted a compound paragraph alleging multiple facts.
Mr. Cracco moved to bar the use of evidence in the form
of printouts of computer screens that allegedly showed
entries made under his login name, as well as printouts
of shipment delivery receipts that contained hand-
written notations.
On October 24, 2007, the district court granted Vitran’s
motion for summary judgment. The court deemed Para-
graph 33 admitted by Mr. Cracco and held that he failed
to establish a retaliation claim under either the direct or
indirect method of proof. The court further held that
Mr. Cracco could not prevail on his interference claim
because there was undisputed evidence that Mr. Cracco
had been terminated for performance issues unrelated
to taking FMLA leave. The court denied as moot
Mr. Cracco’s motion to bar evidence because it had
not relied upon that evidence in granting summary judg-
ment. Mr. Cracco filed this appeal.
6 No. 07-3827
II
DISCUSSION
We review evidentiary rulings and decisions regarding
compliance with local rules for an abuse of discretion.
Thanongsinh v. Bd. of Educ., 462 F.3d 762, 775 (7th Cir.
2006); Koszola v. Bd. of Educ., 385 F.3d 1104, 1108 (7th Cir.
2004).
On appeal, Mr. Cracco challenges the district court’s
decision to vacate the order of default, its decision to
deem admitted Paragraph 33 of Vitran’s statement of
material facts, its grant of summary judgment in favor
of Vitran on Mr. Cracco’s retaliation and interference
claims under the FMLA, and its finding that Mr. Cracco’s
motion to bar evidence is moot. We shall address each
of these issues in turn.
A.
We first examine the district court’s decision to vacate
the order of default against Vitran. Mr. Cracco submits
that Vitran did not make a sufficient showing in its
motion to vacate the order of default to warrant the
district court vacating the default order. He maintains
that Vitran was required to make a showing of a meritori-
ous defense. He claims that Vitran’s general statement
that he was terminated for cause was insufficient to meet
this burden and that Vitran needed to present a developed
legal and factual basis for its assertion that Mr. Cracco
was terminated for cause. See Jones v. Phipps, 39 F.3d
158, 165 (7th Cir. 1994).
No. 07-3827 7
Federal Rule of Civil Procedure 55(c) states: “The court
may set aside an entry of default for good cause, and it
may set aside a default judgment under Rule 60(b).” We
are concerned only with Rule 55(c) because the district
court did not enter a final default judgment awarding
damages to Mr. Cracco. See Merrill Lynch Mortgage Corp. v.
Narayan, 908 F.2d 246, 252 (7th Cir. 1990). The calculus
involved in Rule 55(c) decisions, as with Rule 60(b) deci-
sions, “leads us to give great deference to the district
court’s eventual decision.” See Swaim v. Moltan Co., 73
F.3d 711, 722 (7th Cir. 1996) (applying Rule 60(b)). We
shall reverse such a determination only if the district
court abused its discretion. Sun v. Bd. of Trs. of the Univ.
of Ill., 473 F.3d 799, 810 (7th Cir. 2007).
A party seeking to vacate an entry of default prior to the
entry of final judgment must show: “(1) good cause for
the default; (2) quick action to correct it; and (3) a meritori-
ous defense to the complaint.” Id. (citing Pretzel &
Stouffer v. Imperial Adjusters, Inc., 28 F.3d 42, 45 (7th Cir.
1994)); see also Fed. R. Civ. P. 55(c). While the same test
applies for motions seeking relief from default judg-
ment under both Rule 55(c) and Rule 60(b), the test “is
more liberally applied in the Rule 55(c) context.” United
States v. Di Mucci, 879 F.2d 1488, 1495 (7th Cir. 1989). Our
cases articulate a policy of favoring trial on the merits
over default judgment. Sun, 473 F.3d at 811 (citing C.K.S.
Eng’rs, Inc. v. White Mountain Gypsum Co., 726 F.2d 1202,
1205 (7th Cir. 1984) (collecting cases)).
To have the entry of default vacated, Vitran must
show that it had good cause for the late submission of its
8 No. 07-3827
answer and that it acted in a timely fashion to have the
default order set aside. These two inquiries are not in
serious contention. Vitran has shown good cause for the
lateness of its answer; it did not willfully ignore the
pending litigation, but, rather, failed to respond to the
summons and complaint through inadvertence. See
Passarella v. Hilton Int’l Co., 810 F.2d 674, 677 (7th Cir. 1987).
Although Vitran should have taken measures to ensure
that service of process on its registered agent was for-
warded to the appropriate employee, there is no
evidence that it acted willfully when it failed to respond
to Mr. Cracco’s complaint. Vitran also acted in a timely
fashion to have the default order set aside. It filed
its motion only eight days after the court entered an
order of default, on the day that it learned about the
legal proceeding.
Vitran next must establish that it had a meritorious
defense to the complaint. Vitran’s motion to vacate the
order of default stated:
Defendant has a meritorious defense to the claims
asserted by the Plaintiff. Plaintiff was not terminated
in retaliation for asserting rights under, or in viola-
tion of, the Family and Medical Leave Act. Rather,
Plaintiff was terminated for cause following the con-
clusion of all leave awarded to him under the Act.
R.17 at ¶ 6. In Vitran’s answer, which was filed the follow-
ing day, Vitran stated “that while Plaintiff was on leave, it
discovered numerous facts and issues substantiating its
decision to terminate Plaintiff, and upon the conclusion
of his FMLA leave, Plaintiff was terminated for cause.”
No. 07-3827 9
R.21, Ex. 1 at ¶ 12. Vitran did not provide any details
about the facts supporting its decision to terminate
Mr. Cracco.
Given the lenient standards that we have established
for the application of Rule 55(c), we believe that Vitran
made a sufficient showing of a meritorious defense.
When the motion to vacate is read in conjunction with
Vitran’s answer, Vitran’s explanation for its decision
cannot be characterized as so conclusory as to be fatal.
Rather, it notified the plaintiff and the district court of
the nature of Vitran’s defense and provided the factual
basis for that defense. See Pecarsky v. Galaxiworld.com, Ltd.,
249 F.3d 167, 173 (2d Cir. 2001); United States v. $55,518.05
in U.S. Currency, 728 F.2d 192, 195 (3d Cir. 1984). The
district court acted well within its discretion in deter-
mining that the purpose and intent of Rule 55(c) had
been fulfilled. See Sims v. EGA Prods., 475 F.3d 865, 868
(7th Cir. 2007) (observing that to set aside a default entry
under Rule 55(c), there needs to be good cause for the
judicial action); see also 10A Charles Alan Wright, Arthur R.
Miller & Mary Kay Kane, Federal Practice and Procedure
§ 2692 at 88 (3d ed. 1998) (“The motion to set aside a
default entry . . . may be granted for ‘good cause
shown,’ which gives a court greater freedom in granting
relief than is available in the case of default judgments.”).
B.
We next address Mr. Cracco’s claim that the district
court did not act properly when it deemed admitted
Paragraph 33 of Vitran’s Rule 56.1 statement of material
10 No. 07-3827
facts. Rule 56.1 requires that a party moving for sum-
mary judgment file and serve on the nonmoving
party several documents, including “a statement of mate-
rial facts as to which the moving party contends there is
no genuine issue and that entitles the moving party to a
judgment as a matter of law.” N.D. Ill. R. 56.1(a)(3). The
Rule provides that the statement “shall consist of short
numbered paragraphs.” N.D. Ill. R. 56.1(a). The opposing
party is required to file “a response to each numbered
paragraph in the moving party’s statement, including, in
the case of any disagreement, specific references to the
affidavits, parts of the record, and other supporting
materials relied upon.” N.D. Ill. R. 56.1(b)(3)(b). When
a responding party’s statement fails to dispute the facts
set forth in the moving party’s statement in the manner
dictated by the rule, those facts are deemed admitted
for purposes of the motion. Smith v. Lamz, 321 F.3d 680,
683 (7th Cir. 2003). “Because of the important function
local rules like Rule 56.1 serve in organizing the evidence
and identifying disputed facts, we have consistently
upheld the district court’s discretion to require strict
compliance with those rules.” FTC v. Bay Area Bus. Council,
Inc., 423 F.3d 627, 633 (7th Cir. 2005). See also Koszola, 385
F.3d at 1109; Waldridge v. Am. Hoechst Corp., 24 F.3d
918, 922 (7th Cir. 1994) (collecting cases).2
2
Cf. Ammons v. Aramark Unif. Servs., 368 F.3d 809, 818 (7th Cir.
2004) (holding that a nonmoving party’s response that factual
allegations in the moving party’s statement of material facts
were irrelevant did not excuse the nonmoving party from
(continued...)
No. 07-3827 11
Mr. Cracco submits that, because Paragraph 33 listed
seven different alleged problems with his performance, it
was impossible for him either to admit or to deny the
paragraph. Paragraph 33 violated Rule 56.1(a), Mr. Cracco
maintains, because it was not “short and concise.” See
N.D. Ill. R. 56.1(a). He therefore contends that the
district court erred in deeming Paragraph 33 admitted.
We cannot accept Mr. Cracco’s argument. The Northern
District of Illinois has stated: “[T]he numbered para-
graphs should be short; they should contain only one or
two individual allegations, thereby allowing easy re-
sponse.” Malec v. Sanford, 191 F.R.D. 581, 583 (N.D. Ill.
2000). However, the district court must apply Rule 56.1
in the specific context of the litigation before it and deter-
mine whether the submission at issue adequately com-
plies with the purpose and intent of the Rule or impedes
that Rule’s effectiveness.
When the district court’s decision is assessed in this
manner, we believe that it is clear that there was no
abuse of discretion in determining that Mr. Cracco had
failed to dispute adequately the facts set out in Paragraph
33. Rule 56.1 required Mr. Cracco to admit or deny each
2
(...continued)
indicating whether it admitted or denied the allegations);
In re Motorola Sec. Litig., 505 F. Supp. 2d 501, 504 n.1 (N.D. Ill.
2007) (treating the lead plaintiff’s statement of additional facts
as admitted by the defendants, where the defendants objected
to the statements on several grounds, but failed to cite to the
record in support of a specific denial).
12 No. 07-3827
factual statement proffered by Vitran. See Greer v. Bd. of
Educ., 267 F.3d 723, 727 (7th Cir. 2001). “Employment
discrimination cases are extremely fact-intensive, and
neither appellate courts nor district courts are obliged in
our adversary system to scour the record looking for
factual disputes.” Id. (quotation marks omitted). The
district court acted well within its discretion in con-
cluding that the paragraph, as a practical matter, related
to the single allegation that Vitran employees found the
terminal to be in a state of disarray. The district court no
doubt could have required that Vitran “unbundle” the
factual allegation in Paragraph 33, but its determination
that such “unbundling” was not a necessary predicate
to Mr. Cracco’s compliance with the rule was, in the
context presented here, hardly an abuse of discretion.
C.
We now turn to the district court’s grant of summary
judgment for Vitran on Mr. Cracco’s FMLA retaliation
claim. We review de novo the district court’s grant of
summary judgment to Vitran, construing all facts and
reasonable inferences in Mr. Cracco’s favor. See Autozone,
Inc. v. Strick, 543 F.3d 923, 929 (7th Cir. 2008). Summary
judgment is proper “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c). Mr. Cracco sought to establish re-
taliation under both the direct and indirect methods of
proof. See Ridings v. Riverside Med. Ctr., 537 F.3d 755, 771
(7th Cir. 2008).
No. 07-3827 13
1. Direct Method
To establish a prima facie case of retaliatory discharge
under the direct method, Mr. Cracco was required to
establish that: (1) he engaged in a protected activity;
(2) Vitran took adverse employment action against him;
and (3) there is a causal connection between Mr. Cracco’s
protected activity and Vitran’s adverse employment
action. See Andonissamy v. Hewlett-Packard Co., 547 F.3d
841, 850 (7th Cir. 2008). Under the direct method, “proof of
discrimination is not limited to near-admissions by the
employer that its decisions were based on a proscribed
criterion,” but rather, includes “circumstantial evidence
which suggests discrimination albeit through a longer
chain of inferences.” Luks v. Baxter Healthcare Corp., 467
F.3d 1049, 1052 (7th Cir. 2006).
Mr. Cracco maintains that circumstantial evidence
establishes that he was terminated for taking medical leave
under the FMLA. He contends that the causal link
between his taking leave and Vitran’s terminating his
employment is demonstrated by the fact that he was
terminated on the morning that he returned from leave. See
King v. Preferred Tech. Group, 166 F.3d 887, 893 (7th Cir.
1999). Mr. Cracco emphasizes that he had a fifteen-year
record of positive work reviews prior to taking FMLA
leave, an assertion that is supported by the testimony of
his former supervisor, Webber.3 Mr. Cracco further ob-
3
Cf. Lang v. Ill. Dep’t of Children & Family Servs., 361 F.3d 416,
419-20 (7th Cir. 2004) (noting that the plaintiff’s positive five-
(continued...)
14 No. 07-3827
serves that Vitran’s decision to terminate him was made
while he was on leave.
It is undisputed that Mr. Cracco engaged in a protected
activity when he took FMLA leave and that he suffered
an adverse employment action when his employment was
terminated. Therefore, we need only determine whether
the record established by Mr. Cracco supports the
inference that Mr. Cracco established a causal connection
between the two events. In the context of this record, the
timing of the discharge does not constitute relevant and
probative evidence of a causal link. Here, it is undisputed
that the information Vitran relied upon in determining
that Mr. Cracco was responsible for the Markham
terminal problems was discovered by Vitran after Mr.
Cracco took leave. Vitran presented evidence sup-
porting its claim that it believed, on the basis of its investi-
gation, that Mr. Cracco had been covering up shipment
problems and was the cause of the problems in the termi-
nal.4 In the context of interference with FMLA rights, we
3
(...continued)
year work record plus the timing of his baseless “unauthorized
absence” raised the inference of causation); Culver v. Gorman &
Co., 416 F.3d 540, 546 (7th Cir. 2005) (noting that the timing
of the plaintiff’s termination, coupled with her recent positive
performance evaluation, contributed to an inference of causa-
tion).
4
The parties dispute whether Mr. Cracco actually caused the
problems in the terminal. What is important for our analysis,
however, is the fact that Vitran believed that the problems at
(continued...)
No. 07-3827 15
have held that “[t]he fact that the leave permitted the
employer to discover the problems can not logically be a
bar to the employer’s ability to fire the deficient em-
ployee.” Kohls v. Beverly Enters. Wis., Inc., 259 F.3d 799, 806
(7th Cir. 2001).5 If the FMLA allows an employer to
base adverse employment actions on performance prob-
lems discovered while the employee is on leave, the fact
that the employer discharges the employee when he
returns from leave cannot be sufficient evidence to estab-
lish causation. Otherwise, the employer would be forced
to continue employing a substandard employee after
the conclusion of leave or risk facing liability under the
FMLA.
In this case, Vitran discovered problems at the Markham
terminal after Mr. Cracco took FMLA leave. It then began
an investigation, came to believe that Mr. Cracco was
responsible for the problems and terminated his employ-
ment upon his return to work. Such a situation is not
4
(...continued)
the terminal were caused by Mr. Cracco disguising late and
damaged deliveries. See Elkhatib v. Dunkin Donuts, Inc., 493
F.3d 827, 829 (7th Cir. 2007) (noting that an employee pro-
ceeding under the direct method must show the employee’s
decision was based on a prohibited animus).
5
See also Armstrong v. Sys. Unlimited, Inc., 75 Fed. Appx. 550, 551
(8th Cir. 2003) (affirming summary judgment in favor of the
employer on a retaliation claim where the employee had
performance problems prior to taking leave and the em-
ployer discovered additional problems during the employee’s
leave).
16 No. 07-3827
sufficient to establish a causal connection under the
direct method of proving retaliation because these
actions do not suggest that Vitran management was
acting under a prohibited animus. See Elkhatib v. Dunkin
Donuts, Inc., 493 F.3d 827, 829 (7th Cir. 2007).
Mr. Cracco’s prior positive performance history like-
wise does not support causality, given that Vitran discov-
ered problems at the terminal after Mr. Cracco took
FMLA leave. Although the parties dispute whether
Mr. Cracco was the cause of the problems that Vitran
discovered, the existence of positive performance
reviews do not prohibit Vitran from relying on newly
uncovered evidence in its decision to terminate his em-
ployment. See Hong v. Children’s Mem’l Hosp., 993 F.2d 1257,
1262 (7th Cir. 1993). Mr. Cracco simply has not put forth
a “convincing mosaic” of direct or circumstantial evidence
to show that Vitran acted with discriminatory intent.
See Ridings, 537 F.3d at 769.
2. Indirect Method
Under the indirect method of proving retaliation, Mr.
Cracco may create a presumption of discrimination by
establishing a prima facie case of discrimination. See
Atanus v. Perry, 520 F.3d 662, 672 (7th Cir. 2008). To do so,
Mr. Cracco must demonstrate: (1) he engaged in stat-
utorily protected activity; (2) he met his employer’s
legitimate expectations; (3) he suffered an adverse em-
ployment action; and (4) he was treated less favorably
than similarly situated employees who did not engage
in statutorily protected activity. See Andonissamy, 547
No. 07-3827 17
F.3d at 850. This presumption shifts the burden to Vitran
to produce a legitimate, noninvidious reason for its
actions. See Atanus, 520 F.3d at 672. If Vitran satisfies its
burden of production by rebutting its prima facie case
of discrimination, the burden then shifts back to
Mr. Cracco to show that Vitran’s reasons “are false and
only a pretext for discrimination.” See id. (quotation
marks omitted).
The first and third elements of the prima facie case are
not in dispute. Having taken FMLA leave, Mr. Cracco is
a member of a protected class and was subject to an
adverse employment action when his employment was
terminated.
Mr. Cracco’s case fails, however, with respect to the
second element of the test; he has not demonstrated that
he was meeting Vitran’s legitimate job expectations
when he was discharged. Mr. Cracco emphasizes that
his job performance history was positive prior to his
taking leave. However, the relevant inquiry is Mr. Cracco’s
job performance history as known to Vitran at the time of
his termination. See Hong, 993 F.2d at 1262. There is undis-
puted evidence that Vitran discovered problems in the
terminal during Mr. Cracco’s leave, investigated the
problems and determined that Mr. Cracco was respon-
sible for those deficiencies. Mr. Cracco cannot show that
he met his employer’s legitimate job expectations at the
time that he was discharged, and, therefore, he cannot
satisfy the second element.
Mr. Cracco is also unable to show that he was treated
less favorably than similarly situated employees. Although
18 No. 07-3827
he states that “[n]o other employee at Vitran was ever
terminated for the reasons that the Plaintiff was allegedly
terminated for,” Appellant’s Br. 37, he is not relieved of
the responsibility to point to a similarly situated individ-
ual. To determine whether two employees are directly
comparable for a retaliation claim, we look at “all the
relevant factors, which most often include whether the
employees (i) held the same job description, (ii) were
subject to the same standards, (iii) were subordinate to
the same supervisor, and (iv) had comparable experience,
education, and other qualifications—provided the em-
ployer considered these latter factors in making the
personnel decision.” Ajayi v. Aramark Bus. Servs., 336
F.3d 520, 532 (7th Cir. 2003). Mr. Cracco did not show
that Vitran retained another Service Center Manager
who did not take leave and was not terminated for
poor performance. Consequently, Mr. Cracco cannot
establish a prima facie case of retaliation. The district
court correctly granted summary judgment against
Mr. Cracco on his retaliation claim.
D.
We now examine Mr. Cracco’s interference claim. The
FMLA allows an eligible employee to take up to twelve
weeks of leave during any twelve-month period if the
employee is unable to perform the functions of his
position on account of a serious health condition. De la
Rama v. Ill. Dep’t of Human Servs., 541 F.3d 681, 686 (7th
Cir. 2008). Eligible employees are entitled to reinstate-
ment upon return from leave. 29 U.S.C. § 2614(a)(1);
No. 07-3827 19
Kohls, 259 F.3d at 804. It is “unlawful for any employer
to interfere with, restrain, or deny the exercise of or the
attempt to exercise, any right provided.” 29 U.S.C.
§ 2615(a)(1).
When an employee alleges that his employer interfered
with his substantive rights under the FMLA, he must
establish that: “(1) he was eligible for the FMLA’s
protections, (2) his employer was covered by the FMLA,
(3) he was entitled to leave under the FMLA, (4) he pro-
vided sufficient notice of his intent to take leave, and
(5) his employer denied him FMLA benefits to which
he was entitled.” Burnett v. LFW, Inc., 472 F.3d 471, 477
(7th Cir. 2006). Both parties agree that Mr. Cracco has
established the first four prongs of the interference test;
they dispute whether Vitran denied Mr. Cracco a benefit
to which he was entitled by terminating his employ-
ment when he returned from leave.
An employee’s right to return to work after taking
leave is not unlimited; he is not entitled to “any right,
benefit, or position of employment other than any right,
benefit, or position to which the employee would have
been entitled had the employee not taken the leave.” 29
U.S.C. § 2614(a)(3)(B). See also 29 C.F.R. § 825.216(a) (“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.”). The employer therefore may
present evidence to show that the employee would not
have been entitled to his position even if he had not
taken leave; the employee then must overcome the em-
20 No. 07-3827
ployer’s assertion. Kohls, 259 F.3d at 804. The fact that the
leave permitted the employer to discover the problems
does not bar the employer’s ability to terminate the
deficient employee. Id. at 806; Rice v. Sunrise Express, Inc.,
209 F.3d 1008, 1018 (7th Cir. 2000). See also Throneberry v.
McGehee Desha County Hosp., 403 F.3d 972, 977 (8th Cir.
2005) (holding that “an employer who interferes with
an employee’s FMLA rights will not be liable if the em-
ployer can prove it would have made the same decision
had the employee not exercised the employee’s FMLA
rights”).
Vitran has set forth substantial evidence that Mr. Cracco
was not entitled to resume his employment upon his
return from leave because the company had, after an
investigation, determined that he had not performed
his duties in a competent manner prior to the commence-
ment of his leave. Although Mr. Cracco disputes the
results of this investigation, he has offered no evidence
to dispute that the investigation began, and his short-
comings were discovered, after his leave period com-
menced. Vitran submitted evidence that several em-
ployees noticed discrepancies in the shipment records
and found problems at the facility under Mr. Cracco’s
management. Mr. Cracco did not come forward with
evidence that would lead a reasonable trier of fact to
conclude that the reports of misfeasance did not take
place or that Vitran’s investigation of those allegations
was not a bona fide attempt to assess their accuracy.
Because Mr. Cracco presented no evidence supporting
his assertion that he would have retained his job had he
No. 07-3827 21
not taken FMLA leave, his interference claim fails. See
Rice, 209 F.3d at 1018.6
Conclusion
For the foregoing reasons, we affirm the judgment of
the district court.
A FFIRMED
6
Mr. Cracco also submits that the district court erred in
treating as admissible printouts of computer screens and
printouts of shipment delivery receipts that Vitran included
with its motion for summary judgment. We need not decide
the admissibility of these documents, however, because the
district court did not rely upon them in granting summary
judgment for Vitran.
3-17-09