Amy Kohls v. Beverly Enterprises Wisconsin, Inc. d/b/a Maple Manor Healthcare

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
thesummer 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 Beverlybelieves 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 shown
that a jury could conclude that her
firing was motivated by her . . . use of
leave." Kohls v. Beverly Enter. of Wis.,
Inc., No. 99-C-442-C, slip op. at 2 (W.D.
Wis. March 27, 2000). The court answered
this question in the negative and granted
Beverly's motion for summary judgment.
See id. Kohls appeals only that portion
of the summary judgment decision
dismissing her FMLA claim.

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Click the case caption above for the full text of the
Court's opinion.

Affirmed.

Unknown

Unknown

Reported by Kent Morlan