In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3104

MICHAEL E. DAUGHERTY,

Plaintiff-Appellant,

v.

WABASH CENTER, INC., AND JEFFREY DARLING,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Indiana, Hammond Division. 

No. 4:06-CV-00128-AS-PRC—Allen Sharp, Judge.

ARGUED JULY 7, 2009—DECIDED AUGUST 14, 2009

Before POSNER, KANNE, and SYKES, Circuit Judges.

PER CURIAM. Michael Daugherty sued Wabash Center,

Inc., and its president, Jeffrey Darling, claiming that he

was fired in violation of the Family and Medical Leave

Act, 29 U.S.C. §§ 2601-2654. The district court granted

the defendants’ motion for summary judgment, and

Daugherty appeals. Because Daugherty did not show that

there was a genuine issue of material fact concerning

Wabash’s reason for firing him, we affirm.
2 No. 08-3104

Background

Because this is an appeal from the grant of summary

judgment, we construe all facts and draw all reasonable

inferences from the record in favor of Daugherty, the

nonmoving party. See Cracco v. Vitran Exp., Inc., 559

F.3d 625, 633 (7th Cir. 2009).

Daugherty began working for Wabash, a not-for-profit

agency serving adults and children with developmental disabilities, in May 1999. Between 1999 and 2006,

Daugherty compiled an impressive employment record—he was promoted from a maintenance assistant

to director and then vice-president of information technology. He always received “very good” or “excellent”

performance reviews, and he was given a bonus for

his leadership in a particular project. Daugherty was

also vice-president and chief information officer of Rest

Assured, LLC, a joint venture between Wabash and

ResCare, Inc., that capitalized on Daugherty’s idea to

monitor patients via webcam.

Daugherty’s work-related troubles began in the spring

of 2006. He had gotten involved in “email wars” with

several Wabash employees, and the Rest Assured staff

complained about his management approach. On June 19,

Darling and Steve McAninch, Wabash’s Vice-President

of Finance (and Daugherty’s direct supervisor), gave

Daugherty a written reprimand for sending abusive

emails and for his management style. Daugherty acknowledged his professional shortcomings, and, although he

thought the written reprimand was unwarranted, he

agreed with the substance of the complaints and even
No. 08-3104 3

drafted his own corrective action plan. Darling also

told Daugherty that he was revoking permission for

Daugherty’s planned month-long vacation, scheduled to

begin that month, because of pressing company business.

Before the corrective action plan was discussed,

Daugherty left the June 19 meeting to visit his doctor.

He returned to Wabash to request leave under the

FMLA, having a note from his doctor stating: “off work

2 weeks due to medical illness.” Daugherty’s application

for FMLA leave does not mention a health condition,

but instead describes personnel conflicts within the

company, concluding: “I have been placed under a tremendous amount of stress with [Rest Assured] & [Wabash

Center]. I have requested from Jeff [Darling] & Steve

[McAninch] reorganization that would alleviate this

stress. It was declined. My much needed vacation has

been cancelled by Jeff Darling on 6-16-06.” The afternoon

of June 19 he requested and received two weeks off.

During his absence, Wabash uncovered troubling

information about Daugherty’s work performance. On

June 18, Daugherty had used Wabash’s credit card

without authorization to order a generator that was

delivered to his home. After investigating, Wabash discovered at least five unauthorized purchases, including

one other that was shipped to “Daugherty’s Computers” at Daugherty’s home address. McAninch had previously warned Daugherty that he was required to seek authorization before making purchases. Daugherty later

acknowledged his violations of company purchasing

protocol, but insists that these purchases were above-board
4 No. 08-3104

because he never kept the items for himself, and had

them shipped to his home only because Wabash couldn’t

easily accommodate some shipments.

Then on June 30, McAninch discovered that his

computer was missing emails that he had sent to and

received from Daugherty. That same day, two Wabash

servers crashed. Outside experts brought in to restore

the servers (because of Daugherty’s absence) observed

that Daugherty had failed to routinely back up the

servers—one of his key responsibilities. Suspecting that

Daugherty was remotely accessing (and potentially

sabotaging) Wabash’s network, the company asked these

outside consultants to analyze Wabash’s IT security and

practices. The consultants’ report in mid-July pointed

out deficiencies in Wabash’s IT infrastructure, recommending numerous changes.

Because of the purchasing irregularities, Wabash management presented a new corrective action plan to

Daugherty on July 3, the day he was expected back at

work. At the end of the meeting, Daugherty refused to

sign the plan: he protested that signing would qualify

as “work” and he was not supposed to work during

medical leave. Instead he presented a new order from

his doctor for continued medical leave, which Wabash

granted. McAninch asked that Daugherty refrain from

accessing Wabash’s network while he was on leave,

and asked Daugherty to turn over his keys and any

passwords. Daugherty responded: “I’d rather not.”

Wabash requested the passwords and keys again—still

unsuccessfully—on July 19 and August 3.
No. 08-3104 5

On July 31, a forensic expert analyzed Daugherty’s

computer and discovered that more than 5,000 files had

been deleted on June 19—the day Daugherty was first

disciplined and the day he invoked FMLA leave. On

August 9, citing Daugherty’s authoritarian management

style, poor IT practices, failure to turn over keys, missing

files, and violations of the purchasing protocols, Wabash

terminated Daugherty’s employment.

Daugherty filed suit in September 2006, claiming that

Wabash and Darling fired him in violation of the FMLA.

The district court granted the defendants’ motion for

summary judgment, and Daugherty appeals.

Analysis

Daugherty challenges the district court’s grant of summary judgment on two grounds: the defendants violated

the Act by failing to reinstate him and retaliated against

him for invoking his FMLA rights.

A. Failure to Reinstate

Daugherty first argues that Wabash violated the FMLA

by failing to reinstate him to his former position at the

end of his medical leave. He contends that Wabash was

absolutely prohibited from terminating him while he

was on leave. According to Daugherty, even if an employer discovers a reason to fire an employee during

that employee’s FMLA leave, the employer must reinstate

the employee before then firing him.
6 No. 08-3104

To show a violation of FMLA rights, plaintiffs must show

that they are eligible for FMLA protection, their employer

is covered by the Act, they are entitled to leave, they

provided the appropriate notice, and their employer

denied them benefits to which they were entitled. Smith

v. Hope Sch., 560 F.3d 694, 699 (7th Cir. 2009). An

employee who takes leave under the FMLA is entitled to

be restored to his former position, with equivalent pay

and benefits. 29 U.S.C. §§ 2614, 2615(a); Vail v. Raybestos

Prods. Co., 533 F.3d 904, 909 (7th Cir. 2008), cert. denied,

129 S. Ct. 1361 (2009). This right is not unlimited, however: an employee 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); 29 C.F.R. § 825.216; Harrell v. U.S. Postal

Serv., 445 F.3d 913, 919 (7th Cir. 2006). The defendants

contest only Daugherty’s right to reinstatement.

Daugherty contends that, although the FMLA does not

make employees on medical leave fire-proof, Wabash

was required to reinstate him and then fire him if it

was displeased with his performance. But because the

FMLA only entitles employees to the same position they

would have otherwise been entitled to, 29 U.S.C.

§ 2614(a)(3)(B), an employer may terminate employees—even when on leave—if the employer discovers

misconduct that would justify termination had leave not

been taken. “The 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 employee.” Kohls v. Beverly Enters. Wis., Inc., 259 F.3d 799,

806 (7th Cir. 2001).
No. 08-3104 7

Wabash presented undisputed evidence that Daugherty

had unprofessional email exchanges with other employees, was abusive to his staff, purchased items in

violation of company policy, refused to return keys and

disclose passwords, and deleted company files from his

workstation. At various points Daugherty admitted each

of these violations of company policy, even proposing his

own corrective action plan. And Daugherty makes

no attempt to refute the conclusions of the outside computer consultants who reported to Wabash numerous serious deficiencies in Daugherty’s performance.

Instead, Daugherty insists that being asked to turn over

keys and passwords was “work,” and he could not be

fired for refusing to work while on medical leave. But

Wabash asked for keys and passwords so the agency

could operate without Daugherty. Moreover, these

modest requests—first made on the day Wabash had

expected Daugherty to return to work—are no more

intrusive than the requirement to keep the employer

informed about the status of medical leave, see 29 C.F.R.

§ 825.311(a), or otherwise comply with customary employer rules regarding notice, 29 C.F.R. § 825.303(c);

Lewis v. Holsum of Fort Wayne, Inc., 278 F.3d 706, 710 (7th

Cir. 2002). There is no genuine dispute concerning

Daugherty’s entitlement to reinstatement: even if he

had never taken leave, he would not be entitled to keep

his job.

B. Retaliation

Daugherty contends, in the alternative, that Wabash

retaliated against him by firing him for exercising his
8 No. 08-3104

rights. See Kauffman v. Fed. Express Corp., 426 F.3d 880, 884-

85 (7th Cir. 2005) (distinguishing between the two

theories of recovery). As with other employment discrimination statutes, a claim for retaliation under the

FMLA can proceed through the direct or indirect methods

of proof. Buie v. Quad/Graphics, Inc., 366 F.3d 496, 503

(7th Cir. 2004). On appeal Daugherty argues only that

he made his case under the direct method.

Under the direct method of proving retaliation, a plaintiff must present evidence of a statutorily protected

activity, a materially adverse action taken by the employer, and a causal connection between the two. Caskey

v. Colgate-Palmolive Co., 535 F.3d 585, 593 (7th Cir.),

cert. denied, 129 S. Ct. 738 (2008). Wabash contests only

causation. “A plaintiff can prevail under the direct

method by showing an admission of discrimination or

by ‘constructing a convincing 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 County, 463 F.3d 773, 779 (7th Cir. 2006)).

As analyzed above, Wabash presented undisputed

evidence that it fired Daugherty for misconduct.

Daugherty’s principal argument appears to be that,

although he repeatedly violated company policy, his

misconduct does not justify Wabash’s decision to

terminate his employment. He suggests that his designation as a “key employee,” see 29 C.F.R. § 825.217, was

evidence of Wabash’s discriminatory animus. But while

an employer need not reinstate a key employee, 29 C.F.R.
No. 08-3104 9

§ 825.216, Daugherty does not contest the designation

nor explain how it affected Wabash’s decision to fire

him. Moreover, Wabash never purported to rely on his

status as a key employee to deny reinstatement.

Daugherty further argues that the timing of his termination—that is, while he was on leave—suggests that his

medical leave, not his admitted professional failings,

was the defendants’ true motivation for firing him.

Under some circumstances, an employee’s termination

while on leave can create an inference of discriminatory

motive. Simpson v. Office of Chief Judge of Circuit Court of

Will County, 559 F.3d 706, 713 (7th Cir. 2009). But this court

has held repeatedly that temporal proximity alone is not

sufficient to withstand summary judgment. See, e.g.,

Andonissamy v. Hewlett-Packard Co., 547 F.3d 841, 851 (7th

Cir. 2008); Tomanovich v. City of Indianapolis, 457 F.3d 656,

665 (7th Cir. 2006); Wyninger v. New Venture Gear, Inc., 361

F.3d 965, 981 (7th Cir. 2004). And, while Daugherty

relies on Wabash’s promise to use progressive discipline

when it initially addressed his management problems,

he points to no company policy or past practice violated

by Wabash when it fired him after discovering additional evidence of his sub-par performance and potential

sabotage. Cf. Rudin v. Lincoln Land Cmty. Coll., 420 F.3d

712, 723 (7th Cir. 2005) (holding that abandonment of

hiring policies supported inference of discrimination in

Title VII case); Huff v. UARCO, Inc., 122 F.3d 374, 382 (7th

Cir. 1997) (holding that failure to follow company layoff

policy supports inference of discrimination).

We do not “tell employers how to discipline employees;

rather, [we] ensure that the process is not discriminatory.”
10 No. 08-3104

Kohls, 259 F.3d at 805. Here, Daugherty admits that

“Darling and Wabash Center are earnest in their

appraisals that they fired Daugherty for performance

reasons. They really, really mean it.” Of course, if the

defendants “really mean” that they fired him for workrelated reasons, then Daugherty’s termination was not

retaliatory. See Culver v. Gorman & Co., 416 F.3d 540, 547

(7th Cir. 2005) (“An employer’s explanation can be

‘foolish or trivial or even baseless’ so long as it ‘honestly

believed’ the proffered reasons for the adverse employment action.” (citations omitted)). There is no dispute

concerning Wabash’s motive, and therefore summary

judgment was appropriate.

Conclusion

Because Daugherty has not shown a genuine issue of

material fact concerning defendants’ motivation for

firing him, we AFFIRM.

8-14-09