Lewis, Debra L. v. School District 70

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 06-4435

DEBRA L. LEWIS,

Plaintiff-Appellant,

v.

SCHOOL DISTRICT #70, a corporation,

JOHN BLOMENKAMP, TAMMY CARPENTER, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 05 C 776—William D. Stiehl, Judge.

____________

ARGUED OCTOBER 29, 2007—DECIDED APRIL 17, 2008

____________

Before BAUER, RIPPLE and WILLIAMS, Circuit Judges.

RIPPLE, Circuit Judge. Debra Lewis brought this action

against: her employer, Freeburg Community School

District No. 70; the school superintendent, Rob Hawkins;

the school district’s attorney, Shane Jones; the school board;

and members of the school board in their individual

2 No. 06-4435

capacities.1 She alleged violations of the Family and

Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq.;

she also brought supplemental state claims for breach of

contract, defamation and intentional infliction of emotional

distress. The district court granted summary judgment on

all counts in favor of the defendants. Ms. Lewis timely

appealed. For the reasons set forth in this opinion, we

affirm in part, reverse in part, and remand for further

proceedings consistent with this opinion.

I

BACKGROUND

Because this case is here on a grant of summary judg-

ment for the defendants, we must review the facts in the

light most favorable to the plaintiff. Squibb v. Mem. Med.

Ctr., 497 F.3d 775, 780 (7th Cir. 2007).

Freeburg Community School District No. 70 (“the

District”) is a public school system located in St. Clair

County, Illinois. The District is governed by a seven-

member Board of Education (“school board”). In March

2005, its members included defendants John Blomenkamp,

Tammy Carpenter, Steve Lindauer, Herschel Parrish,

Dean Salvatore, Scott Weber and Richard Trolard.2 Dr. Rob

1

Ms. Lewis initially filed her complaint in state court, but

the defendants removed the case to federal court. The district

court had jurisdiction over her claims pursuant to 28 U.S.C.

§ 1331 and 28 U.S.C. § 1367(a). We have jurisdiction to review

the district court’s decision under 28 U.S.C. § 1291.

2

Laurie Watkins became a board member in April of 2005. She

was not a board member at the time of the events relevant to

(continued...)

No. 06-4435 3

Hawkins is the superintendent of the school district, and

he is responsible for overseeing the functions and perfor-

mance of all the District’s employees. Dr. Hawkins makes

recommendations to the school board regarding the

selection and dismissal of employees; however, all final

employment decisions are within the province of the

school board.

Ms. Lewis began working for the District as a bookkeeper

and treasurer in September 1997. She was responsible for:

maintaining all financial accounts and records; preparing

payroll, tax returns and other required state financial

reports; paying bills monthly; preparing monthly cafeteria

reports and financial reports; and otherwise assisting

the superintendent. All parties agree that Ms. Lewis

performed her job admirably until 2004.

The year 2004, however, was a truly terrible year for

Ms. Lewis. Both of her parents became terminally ill, and

Ms. Lewis attempted to care for them at home. Her father

died at home on May 23, 2004, and in a tragic sequence

of events, five other family members or close friends

passed away that year. On May 31, 2004, her mother

came home from the hospital and needed constant care.

Ms. Lewis thereafter often missed work to care for her

mother at home. Dr. Hawkins, her immediate supervisor,

was aware that Ms. Lewis was taking time off from work in

order to care for her ailing parents, and he gave her

2

(...continued)

this suit, and the claims against her therefore properly were

dismissed by the district court.

4 No. 06-4435

permission to do so. In the 2004 fiscal year,3 Ms. Lewis

was absent a total of 72.5 out of a possible 242 workdays.

During this time, with the encouragement of Dr.

Hawkins, Ms. Lewis took much of her bookkeeping

work home with her and worked whenever she could,

including in the evenings or on weekends. She was able

to get much of the bookkeeping work done that way.

According to Dr. Hawkins, however, her “flex-time”

schedule began to be a problem for the school district

because other employees were forced to alter their sched-

ules to cover for Ms. Lewis, and she was not available

during regular work hours to answer questions from

employees or vendors.

On June 28, 2004, the school board met in a closed ses-

sion to discuss employee salaries. Although the meeting

was closed to the public, it was tape recorded in compli-

ance with the requirements of the Illinois Open Meetings

Act, 5 ILCS 120/2.06(a). In the meeting, Dr. Hawkins

proposed that Ms. Lewis be given a small raise, but he

also informed the board that she had been absent 47.5 days

so far that year. He explained some of the hardships

caused to the District by her absences: Ms. Lewis had

failed to produce a cafeteria report for a number of months,

and Dr. Hawkins had been forced to make a list of priori-

ties and pay some of the District’s bills himself. He also

remarked that the office did not function as smoothly

without Ms. Lewis there to help answer phones and

dispose of mail, and he lamented that she was unavailable

for vendor calls. At that time, a number of board members

3

The District’s fiscal year begins on July 1 and concludes the

following June 30.

No. 06-4435 5

expressed the view that they ought to start looking for

a new bookkeeper, but Dr. Hawkins dissuaded them.

That same day, however, Dr. Hawkins sent Ms. Lewis

a letter advising her that she should resume a regular

8:00 a.m. to 4:00 p.m. work schedule by the start of the

next school year. The letter identified the aspects of her

job that required her attendance during normal business

hours: assisting with covering the office during lunch

breaks, assisting with answering the phone, being avail-

able for teachers, staff, and himself for information, and

being available for vendors when they call with questions.

Nevertheless, in September 2004, Ms. Lewis missed 6 of

21 days of work; in October she missed 7 of 20. At the

school board’s October meeting, Dr. Hawkins again made

mention of the inconveniences caused by Ms. Lewis’ large

number of absences; he also described a number of

“performance” problems that he claimed were unrelated

to her absences. Specifically, he noted that: the District’s

tax payments to the IRS had been late, resulting in a

penalty (although Ms. Lewis ultimately had been able to

get it waived); the District had been denied credit from

Verizon due to a blemish on its credit check; the 2004

completion report had not been filed; a number of cafeteria

reports had not been completed; other bills were not being

paid timely; and Ms. Lewis had not compiled her own

attendance report. He also mentioned that her office was

a mess. At least one board member expressed the view

that she should be fired for absenteeism and poor perfor-

mance. Dr. Hawkins, however, informed the board that

the District faced potential legal liability under the FMLA;

accordingly, he suggested that Ms. Lewis be approached

and offered official FMLA leave instead. The board gave

its approval, and on November 9, 2004, Dr. Hawkins sent

6 No. 06-4435

a letter to Ms. Lewis, informing her that her paid sick leave

and vacation time had run out but that she was entitled to

take up to 12 weeks of unpaid leave under the FMLA.

Ms. Lewis completed the necessary paperwork and, at

the direction of Dr. Hawkins, subsequently began taking

intermittent FMLA leave. Ms. Lewis and Dr. Hawkins

established a procedure by which she would call the office

whenever she needed to take leave and inform Dr.

Hawkins that she was going to be absent that day. She

simply was required to specify that her absence was

for FMLA reasons, and her absence would then be “ex-

cused,” though unpaid.

During the time that she was taking intermittent FMLA

leave, however, Ms. Lewis still was asked to perform all

of the functions of a bookkeeper. She was able, to some

extent, to determine her own schedule, but she con-

tinued to do much of the District’s bookkeeping work at

her home and on weekends in order to ensure that neces-

sary tasks were completed. She never was credited for

her time spent working at home, however, and she was

not paid for the days on which she took FMLA leave.

The school board was well aware of this practice; in

fact, Dr. Hawkins even commented to the board that

Ms. Lewis actually was “helping the budget because

she’s, uh, already being docked because she’s exhausted

all of her sick days, she’s been gone for all of her vacation

days, her bereavement day and her personal day and

she’s 22 in the hole.” R.76, Ex. 5 at 3. Despite the alleged

difficulties caused by her absences, however, the District

never sought any part-time help for the bookkeeper

position during the period in which Ms. Lewis was taking

intermittent leave.

No. 06-4435 7

Throughout 2004, the school board continued to discuss

Ms. Lewis and the problems caused by her absences. On

November 22, 2004, in another closed-session meeting,

a number of board members expressed the opinion that

they would like to fire Ms. Lewis; however, they were

concerned about their potential legal liability under the

FMLA. Dr. Hawkins confirmed their fears, stating that

“we don’t have anything, it’s all too soft to do anything

about her in terms of performance . . . . [I]f she didn’t have

the FMLA issue it would be easier for me to do

something . . . .” Id. at 22. The board members responded

by discussing the FMLA with disdain, noting that it was

“just ludicrous,” id. at 25, and “it’s such a fiasco that

you can’t just say thank you for your services, good-

bye,” because of “FMLA and Bill Clinton.” Id. at 29.

Dr. Hawkins was encouraged to continue documenting

any performance-related problems in order to build a

case against Ms. Lewis that was unrelated to her absences.

Id. at 25.

On March 10, 2005, Ms. Lewis received her first and

only performance review from Dr. Hawkins. The review

form contained three potential rankings: very good,

satisfactory and needs improvement. Ms. Lewis received

two rankings of “very good,” seven rankings of “satisfac-

tory” and four rankings of “needs improvement.” R.67, Ex.

JJ. The areas that needed improvement were: “works in a

manner that promotes safety, cleanliness and efficiency”;

“demonstrates pride in work by performing tasks neatly

and accurately”; “shows punctuality and has excellent

attendance”; and “demonstrates professionalism through

appropriate dress, language, and interactions.” Id. In the

comments section adjacent to the “pride in work” category,

Dr. Hawkins noted: “This was not a problem previously.

8 No. 06-4435

It has become an issue the past 6 mo[nths] with the reduced

hour week. While I believe Mrs. Lewis still takes pride in

her work, time constraints have caused problems.” Id.

Additionally, at the bottom of the form, he wrote:

Deb, Most of the items that are “satisfactory” or “needs

improvement” are a direct result of your reduced hour

schedule. As I have mentioned many times when we

discuss this, I understand your commitment to taking

care of your parents. I also understand you are doing

what you can to prioritize so that crucial deadlines are

not missed. Unfortunately, as I told you, you cannot

continue as you are and be effective in all arenas.

I understand your personal dilemma. I have tried to

balance that with the needs of the district. Rob.

Id.

On March 21, 2005, the school board again met in a

closed session and discussed Ms. Lewis. Although state

law requires that closed sessions of school board meetings

be tape recorded, the first fifty-six minutes of the eighty-

one-minute session—coincidentally, the portion of the

meeting in which Ms. Lewis was discussed—are missing

from the meeting’s recording. Two conflicting explanations

for the missing segment of tape exist in the record: one

note, signed by Dr. Hawkins, states that the machine

had malfunctioned, and another (unsigned) note states

that the operator had believed that the machine was

running from the beginning of the session, but later had

realized that it was not and began recording. The written

minutes of the meeting reflect only that Dr. Hawkins

recommended that Ms. Lewis be replaced as bookkeeper.

The minutes do not state whether a vote of the board was

taken, although each board member has signed a sworn

No. 06-4435 9

statement that the board voted at this meeting to replace

Ms. Lewis as bookkeeper.

The District ultimately decided to offer Ms. Lewis two

options: either (1) resignation, with paid insurance for the

rest of the school year, or (2) reassignment to a teacher’s

assistant position, paid her current salary and benefits

for the few months remaining in that fiscal year, but paid

at the much lower teacher’s assistant salary thereafter.

Dr. Hawkins testified in his deposition that the reassign-

ment, if accepted, was not intended to be temporary—it

was decided at the March 21 meeting that her demotion

would be permanent.

On March 23, 2005, Dr. Hawkins sent a letter to

Ms. Lewis on behalf of the District, informing her of the

school board’s decision to remove her from her position as

bookkeeper. The letter offered only one reason for her

replacement: “It was determined that you miss too much

work to meet the essential functions of your present

assignment.” R.67, Ex. MM. The letter then explained

her choice between resignation or permanent reassign-

ment to a lower position. Dr. Hawkins met with Ms. Lewis

the next day to explain further her options and to help her

clean out her office. At that time, according to Ms. Lewis,

Dr. Hawkins provided his own explanation for the Dis-

trict’s actions: He told her that “the board didn’t have any

idea how much time [she] was missing and they voted

to fire [her].” R.67, Ex. C at 142; see also id. at 221-22.

Ms. Lewis’ husband, an attorney, thereafter wrote an

e-mail to Dr. Hawkins, suggesting that the District’s actions

were in violation of Ms. Lewis’ rights under the FMLA.

Dr. Hawkins referred the e-mail to the District’s counsel,

defendant Shane Jones. Mr. Jones responded in a letter

to Mr. Lewis, stating that “the district has determined

10 No. 06-4435

that Ms. Lewis’s performance in the bookkeeper job

assignment is not satisfactory,” and thus its decision not

to reappoint her to her position as bookkeeper for the

following year was unrelated to her FMLA leave. R.26,

Ex. B.

Ms. Lewis requested reinstatement to her position as

bookkeeper in August 2005. Dr. Hawkins and Mr. Jones

authored a letter in which they denied her request for

reinstatement, citing performance problems that had

been discovered after she had been reassigned. These

alleged performance problems included newly dis-

covered late payments, overpayments, and checks that

had been neither deposited nor voided.

After her request for reinstatement was denied, Ms.

Lewis filed suit against the District, the individual mem-

bers of the school board, Dr. Hawkins, and attorney

Shane Jones. Her complaint alleged violations of the FMLA,

breach of contract, defamation and intentional infliction of

emotional distress. In response, the defendants suggested

that Ms. Lewis had been replaced, not because of her

absenteeism, but because of performance-related issues.

On June 30, 2006, the district court dismissed the inten-

tional infliction of emotional distress claim against Mr.

Jones. On September 6, 2006, the court entered summary

judgment in his favor on the defamation claim as well.

Ms. Lewis filed a motion to reconsider, which was denied.

On November 28, 2006, the district court entered sum-

mary judgment on all remaining counts in favor of all

remaining defendants. It concluded that the record was

replete with evidence of Ms. Lewis’ poor performance as

bookkeeper and that Ms. Lewis had not presented evidence

of retaliation, under either the direct or indirect method

of proof, sufficient to establish an issue of triable fact.

No. 06-4435 11

Ms. Lewis timely appealed the judgment of the district

court.

II

DISCUSSION

A.

We first address a procedural issue raised by Ms. Lewis.

She initially filed suit in state court on September 26,

2005, and served all but one of the defendants4 with

process on the same date. The defendants filed a notice

of removal on October 25, 2005. Under Federal Rule of Civil

Procedure 81(c),5 a defendant has five days from the filing

of the petition for removal in which to file an answer in the

district court. Accounting for an intervening weekend,

November 1 was therefore the last day for the defendants

to file an answer, absent an extension of time. The defen-

dants, however, filed their answer on November 3, 2005.

Ms. Lewis moved to strike their answer as untimely, but

her motion was denied. She now submits that the district

court erred by considering the defendants’ answer.

4

Defendant Richard Trolard was not served until October 14,

2005. Therefore, his answer was filed timely, within 20 days

of his service of process.

5

At the time of the events in question, Federal Rule of Civil

Procedure 81(c) provided: “In a removal action in which the

defendant has not answered, the defendant shall answer . . .

within 20 days after the receipt through service or otherwise

of a copy of the initial pleading . . . or within 5 days after the

filing of the petition for removal, whichever period is longest.”

12 No. 06-4435

The defendants contend that their answer was not

untimely because Federal Rule of Civil Procedure 6(e), read

in conjunction with the local electronic filing rules, en-

titled them to an additional three days to file. Rule 6(e)

allows a party additional time to file an answer when-

ever that party is served by a method other than personal

service. At the time that the defendants filed their answer,

Rule 6(e) stated:

Whenever a party has the right or is required to do

some act or take some proceedings within a pre-

scribed period after the service of a notice or other

paper upon the party and the notice or paper is served

upon the party under Rule 5(b)(2)(B), or (C), or (D),

3 days shall be added to the prescribed period.

Similarly, the local filing rules provide: “Pursuant to

Federal Rule of Civil Procedure 6(e) . . . whenever some-

thing is served electronically, three days are added to the

prescribed response period.” S.D. Ill. Local Electronic Filing

Rule 3 (2007). The defendants here filed and served their

notice of removal electronically, an act that they contend

entitled them to an additional three days to file their

answer under Rule 6(e) and Local Rule 3.

The magistrate judge determined that the defendants

were entitled to an additional three days (beyond the five

days provided for in Rule 81) in which to file an answer.

Ms. Lewis objected. Relying on the plain wording of the

Rule, she contends that, because the defendants them-

selves had filed the Notice of Removal, their right to file

an answer in federal court was not triggered by any

electronic service upon them. Therefore, Rule 6(e) did not

apply. The district court, however, agreed with the magis-

trate judge. It concluded:

No. 06-4435 13

The plaintiff asserts that only the plaintiff gets an

additional three days to respond, not the defendants

because they were the party serving the answer.

However, the plaintiff appears to overlook the fact that

the defendants were also “served” with the complaint,

thereby triggering their right to file an answer, and

under the Federal Rules giving them an additional

three days in which to file.

R.23 at 1-2.

We cannot agree with the district court’s interpretation

of the Rules. The defendants indeed were served with the

complaint in state court; however, that service cannot be

seen as the “triggering” event here. If it were, then the

defendants’ filing certainly was untimely because Rule

81(c) requires an answer to be filed within 20 days of

service. Instead, the defendants’ own electronic filing of

the notice of removal was the event that triggered their

right to file an answer in federal court within five days

of removal. Fed. R. Civ. P. 81(c). Additionally, service

of the complaint here was achieved through personal

service; therefore, if the district court was correct in

considering that service to be the basis for the defendants’

right to file an answer, Rule 6(e) certainly would not have

applied. In this case, the only event that potentially

could have triggered the application of Rule 6(e) was the

defendants’ own electronic filing of the notice of removal.

Permitting a party extra time to file an answer because

of his own electronic filing finds no support in the plain

wording of the rule. Rule 6(e) grants a party an extension

of time to respond only “after the service of a notice or

other paper upon the party” by a method other than

personal service. Fed. R. Civ. P. 6(e) (emphasis added). This

extension does not appear to apply to actions taken by a

14 No. 06-4435

party after the service of a notice or other paper by

that party. In our view, a facial reading of the Rules makes

clear that the defendants here were not entitled to an

additional three days under Rule 6(e), and therefore their

answer was filed untimely.

Nevertheless, a district court has the discretion to

permit the defendants to file their answer late “when the

failure to act was the result of excusable neglect.” Fed. R.

Civ. P. 6(b). A finding of excusable neglect “is not limited

to situations where the failure to timely file is due to

circumstances beyond the control of the filer,” Pioneer

Inv. Servs. Co. v. Brunswick Assoc. Ltd., 507 U.S. 380, 391

(1993), but extends to some cases in which the delay is

“caused by inadvertence, mistake, or carelessness.” Id. at

388. We have cautioned, however, that “a simple case of

miscalculation” of a deadline generally is “not a suf-

ficient reason to extend time.” Marquez v. Mineta, 424

F.3d 539, 541 (7th Cir. 2005) (quotation marks omitted); but

see Crue v. Aiken, 370 F.3d 668, 681 (7th Cir. 2004) (uphold-

ing a district court’s grant of an extension based on

“excusable neglect” when an attorney simply miscal-

culated a thirty-day filing period by one day). Because

the district court here determined that the defendants

had timely filed their answer, however, it did not reach

explicitly the question of whether the defendants’ failure

to timely file was the result of excusable neglect.

Ms. Lewis relies on language in our decision in Prizevoits

v. Indiana Bell Telephone Co., 76 F.3d 132, 133 (7th Cir. 1996),

for the proposition that “the excusable neglect standard

can never be met by a showing of inability or refusal to

read and comprehend the plain language of the federal

rules.” We believe, however, that this proposition cannot

control the situation now before us. In Prizevoits, we

No. 06-4435 15

distinguished between an inexplicable failure to read the

rules and “plausible misinterpretations of ambiguous

rules.” Id. at 134. In Prizevoits, the rule was “crystal clear”

and the attorney’s error “egregious” and “inexplicable.” Id.

Here, by contrast, we have a plausible misinterpretation

of a procedural rule—a misinterpretation based on a

reading so plausible that both the magistrate judge and the

district judge made the same misinterpretation. Cf. Lorenzen

v. Employees Ret. Plan of the Sperry & Hutchinson Co., Inc.,

896 F.2d 228, 232 (7th Cir. 1996) (holding that delay based

on a good faith and “plausible misconstruction” of the law

may warrant a finding of excusable neglect).

The Supreme Court has concluded that the determina-

tion of “excusable neglect” is “at bottom an equitable

one, taking account of all relevant circumstances sur-

rounding the party’s omission.” Pioneer, 507 U.S. at 395.

The factors to consider include the danger of prejudice, the

length of the delay and its potential impact on judicial

proceedings, the reason for the delay, and whether the

movant had acted in good faith. Id. Here, there is no reason

to believe that Ms. Lewis was at all prejudiced by the

defendants’ answer being filed two days late. The length

of the delay and the potential impact on judicial proceed-

ings was minimal, and there is no reason to believe that

the defendants acted in bad faith. Because the tardy filing

was a result of excusable neglect, we conclude that the

district court did not abuse its discretion when it denied

Ms. Lewis’ motion to strike the defendants’ answer.

B.

We review de novo a district court’s grant of summary

judgment. Rudin v. Lincoln Land Cmty. Coll., 420 F.3d 712,

16 No. 06-4435

719 (7th Cir. 2005). Summary judgment is proper only if the

pleadings, depositions, answers to interrogatories, and

affidavits show that there is no genuine issue as to any

material fact and that the moving party is entitled to a

judgment as a matter of law. Fed. R. Civ. P. 56(c); see also

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986);

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When

reviewing a grant of summary judgment, we view all facts

in the light most favorable to the nonmoving party, and

we draw all reasonable inferences in her favor. Id.

The FMLA establishes two categories of protections

for employees. First, the Act provides eligible employees

the right to take unpaid leave for a period of up to twelve

work weeks in any twelve-month period because of a

serious health condition, including the serious health

condition of a family member. King v. Preferred Technical

Group, 166 F.3d 887, 891 (7th Cir. 1999). After the period

of qualified leave expires and the employee returns to

work, she is entitled to be reinstated to her former posi-

tion or to an equivalent position with the same benefits

and terms of employment. Id.; 29 U.S.C. § 2614(a). The

FMLA makes it “unlawful for any employer to interfere

with, restrain, or deny the exercise of or the attempt to

exercise, any right provided” under the Act. 29 U.S.C.

§ 2615(a)(1).6

6

Ms. Lewis alluded in her appellate brief, as well as in her

motion for summary judgment, that the school district failed to

notify her adequately of her FMLA rights and thereby

impermissibly interfered with their exercise. See 29 C.F.R.

§ 825.301(c), (f). By failing to raise this issue in her complaint,

however, she has forfeited it. Stevenson v. Hyre Elec. Co., 505

(continued...)

No. 06-4435 17

In addition to the substantive guarantees contemplated

by the Act, the FMLA also affords employees protection

in the event that they are retaliated against because of

their choice to exercise their rights under the Act. King,

166 F.3d at 891 (citing 29 U.S.C. § 2615(a)(1) & (2)). Specifi-

cally, “[a]n employer is prohibited from discriminating

against employees . . . who have used FMLA leave.” Id.

(citing 29 C.F.R. § 825.220(c)). On appeal, Ms. Lewis does

not allege that the defendants interfered with her sub-

stantive rights under the FMLA; she contends only that

she was retaliated against for taking FMLA-protected

leave.

A plaintiff can avert summary judgment on an FMLA

retaliation claim either by proffering direct or circum-

stantial evidence of her employer’s discriminatory motiva-

tion, or by establishing that, after taking FMLA leave,

she “was treated less favorably than other similarly

situated employees who did not take FMLA leave, even

though [s]he was performing [her] job in a satisfactory

manner.” Burnett v. LFW, Inc., 472 F.3d 471, 481-82 (7th Cir.

2006). The first of these methods of proof—proffering

evidence of a retaliatory motive—is referred to as the

“direct method.” The second method of proof—comparing

her treatment to that of a similarly situated employee—is

called the “indirect method.”

6

(...continued)

F.3d 720, 730 (7th Cir. 2007) (“Stevenson failed to give [the

defendant] notice in her complaint of her contention that it

failed properly to inform her of her FMLA rights. The district

court thus acted within its discretion when it refused to allow

her to raise that argument for the first time in her summary

judgment motion.”).

18 No. 06-4435

Ms. Lewis has proceeded under the direct method of

proof. A plaintiff proceeding according to this direct

method of proof can survive summary judgment by

“creating a triable issue of whether the adverse employ-

ment action of which she complains had a discriminatory

motivation.” Rudin, 420 F.3d at 721 (internal citations,

alterations and quotation marks omitted). Ms. Lewis

need not prove that retaliation was the only reason for

her termination; she may establish an FMLA retaliation

claim by “showing that the protected conduct was a

substantial or motivating factor in the employer’s deci-

sion.” Culver v. Gorman & Co., 416 F.3d 540, 545 (7th Cir.

2005). “A motivating factor does not amount to a but-for

factor or to the only factor, but is rather a factor that

motivated the defendant’s actions.” Id. (quoting Spiegla

v. Hull, 371 F.3d 928, 942 (7th Cir. 2004)).

Ms. Lewis may use two types of evidence to prove that

her employer acted with a discriminatory motivation:

“direct evidence” or “circumstantial evidence.” Rudin, 420

F.3d at 720-21. Direct evidence is evidence “which (if

believed by the trier of fact) will prove the fact in question

without reliance upon inference or presumption.” Id. at

720 (quotations omitted). Direct evidence generally in-

volves an admission or a statement by the decision maker

regarding his discriminatory intent. Circumstantial evi-

dence “allows the trier of fact to infer intentional discrimi-

nation by the decisionmaker.” Id. Direct evidence is not

required under the direct method of proof; circumstantial

evidence that suggests discrimination, “albeit through a

longer chain of inferences,” is sufficient. Lewis v. City of

Chicago, 496 F.3d 645, 651 (7th Cir. 2007). In this case,

however, Ms. Lewis has presented both direct and circum-

stantial evidence of a discriminatory motive sufficient

No. 06-4435 19

to avert summary judgment under the direct method of

proof.

The most prominent direct evidence proffered by Ms.

Lewis is Dr. Hawkins’ letter informing her of the District’s

decision to replace her as bookkeeper. The letter offered

only one justification for the District’s action: “It was

determined that you miss too much work to meet the

essential functions of your present assignment.” R.67,

Ex. MM. Furthermore, according to Ms. Lewis’ sworn

affidavit, Dr. Hawkins explicitly told her that the school

board had decided to demote her because of her absentee-

ism. These statements, made by the District’s superinten-

dent on behalf of the District itself, are, when read in

context, direct evidence of an impermissible motivation

for her loss of the bookkeeper position.

Ms. Lewis has presented circumstantial evidence of

an impermissible motivation as well. Before her FMLA

leave, during her FMLA leave and at the time of her

termination, the actions of the school board and of the

superintendent cast doubt on their claim that her removal

from the bookkeeper position was for incompetence.

First, the conduct of the school board and the super-

intendent during the period before Ms. Lewis was placed

on FMLA leave raises the permissible inference that,

while fully cognizant of their obligations to Ms. Lewis

under the FMLA, they decided not to inform her of those

rights and place her on FMLA leave, but instead to build

a case for her discharge on the ground of incompetence.

Moreover, the record reveals that, in a meeting at which

Ms. Lewis’ situation was discussed, the school board

members referred to the requirements of FMLA with

disdain. They described the Act’s requirements as “just

ludicrous” and “a fiasco.” R.76, Ex. 5 at 25, 29. Indeed, it

20 No. 06-4435

was at that same meeting that the board members in-

structed Dr. Hawkins to document everything in an

attempt to build a case against Ms. Lewis based on her

performance.7

The actions of the school board and the superintendent

during Ms. Lewis’ period of FMLA leave also raise

serious questions about their reason for discharging her.

There is evidence that, although the District was aware

that certain bookkeeper functions were not being com-

pleted adequately while Ms. Lewis was taking intermit-

tent FMLA leave, it made no effort to take adequate steps

to assuage the impact of her intermittent leave on the

District’s operations. A reasonable jury could conclude that

the District, instead of taking such steps, expected

Ms. Lewis to complete all of the duties of a full-time

bookkeeper while she was working (and being paid) on

an essentially part-time basis. Arguably, when her peri-

ods of intermittent leave prevented her from timely

completing all of the duties she had performed as a full-

time bookkeeper, she was removed from her position.

Viewed in this way, a reasonable jury could find that the

FMLA leave granted to Ms. Lewis was illusory. If the

jury were to take this view of the evidence, the perfor-

mance problems noted by the district court could not

provide a permissible non-discriminatory justification

for an adverse employment action; the problems would

be, under such circumstances, the direct result of Ms.

Lewis’ exercise of her FMLA rights. The jury could con-

7

We emphasize that we view the school board members’

statements and actions in the aggregate, and we do not suggest

that similar statements, standing alone, would be always

sufficient to survive summary judgment.

No. 06-4435 21

clude that the school district had numerous options

consistent with the mandates of the FMLA that did not

require it to maintain the problematic status quo. It could

have shifted some of the bookkeeper’s job duties to other

employees during the time that Ms. Lewis was taking

FMLA leave. It could have hired part-time help for the

bookkeeper position. It also could have transferred

Ms. Lewis to another position (such as a teacher’s assistant

position) temporarily if she was unable to fulfill the essen-

tial functions of her job while taking intermittent FMLA

leave. 29 U.S.C. § 2612(b)(2).8 The District declined to

exercise any of these options. In short, we believe that a

jury would be entitled to conclude that the school board

and the superintendent held Ms. Lewis to the unrealistic

expectation that she should accomplish satisfactorily all

of the duties of the bookkeeper position during her peri-

od of FMLA-protected intermittent leave. The imposition

of such unrealistic expectations, if accepted by the jury,

would be relevant and probative evidence of a retalia-

tory intent.

Finally, we believe that a reasonable jury could con-

clude that the actions of the District at the time of her

dismissal from the bookkeeper position provide circum-

stantial proof of retaliatory motive. In addition to the

evidence that she was demoted permanently during the

8

If a temporary reassignment is made, however, the FMLA

requires that the employee be reinstated to her previous posi-

tion (or one comparable in duties and compensation) once her

leave has been exhausted and she returns to full-time work.

29 U.S.C. § 2612(b)(2). In this case, Ms. Lewis has presented

evidence that her reassignment was intended to be permanent,

not temporary.

22 No. 06-4435

time period in which she was taking intermittent FMLA

leave, Ms. Lewis also produced evidence that the school

board had failed to follow its own procedures in demoting

her,9 a circumstance that, if true, could suggest a dis-

criminatory motivation. See Rudin, 420 F.3d at 723. Addi-

tionally, she presented evidence that the board may

have tampered with audio recordings of meetings at

which her employment was discussed, evidence that we

have considered to be probative of pretext or improper

motivation on other occasions. See Ogborn v. United Food &

Commercial Workers Union, 305 F.3d 763, 769 (7th Cir. 2002)

(noting that evidence of tampering may be evidence of

pretext, although ultimately denying the claim on other

grounds). In the aggregate, such direct and circum-

stantial evidence is sufficient under the direct method of

proof to survive summary judgment on her FMLA claim.

The district court took the view that the record contained

ample evidence of performance-related problems that

justified Ms. Lewis’ discharge on the ground of incompe-

tence rather than in retaliation for taking FMLA-protected

leave. In the court’s view, she was replaced because she

was not performing adequately the duties of a bookkeeper.

9

Ms. Lewis suggests on appeal that the school board members

inappropriately delegated to the superintendent their duty

to make employment decisions. See Bd. of Trs., Prairie State

Coll. v. Ill. Educ. Labor Relations Bd., 527 N.E.2d 538, 550 (Ill. App.

Ct. 1988). She also intimates that Dr. Hawkins improperly

made the decision to fire Ms. Lewis well before the school

board meeting on March 21. Because her complaint never

alleged a due process claim or any other procedural cause of

action, we construe her intimations that the school board

failed to follow the proper procedure as relevant solely to her

FMLA claim, not as an independent cause of action.

No. 06-4435 23

Indeed, it listed a significant number of errors that, in its

view, were unrelated to her absenteeism.10 A trier of fact

ultimately might reach the same conclusion as the dis-

trict court. However, the evidence presented by Ms. Lewis

casts sufficient doubt upon the District’s and the super-

10

The court cited the following bookkeeping errors as evidence

of Ms. Lewis’ poor performance as bookkeeper:

a. The school principal was underpaid;

b. Federal and local grant money received by the school

district was delayed because plaintiff failed to prepare

the requisite reports;

c. Plaintiff failed to prepare the financial report for the

October 2004 board meeting;

d. Plaintiff repeatedly failed to pay bills on time;

e. Plaintiff failed to properly handle a dispute regarding

an employee’s retirement benefits;

f. Plaintiff failed to correct a known discrepancy re-

garding an employee’s sick leave benefits;

g. Plaintiff erred in preparing employees’ paychecks;

h. Plaintiff failed to timely deliver employees’ 2004 W2

forms;

i. February 7, 2005, the district received notice that the

Internal Revenue Service was imposing a $163,160.66 fine

on the district for failure to file W-2 forms for district

employees for the year 2001 (plaintiff’s responsibility);

j. Plaintiff improperly withheld Medicare payments from

the paychecks of three employees even though those

employees had elected not to participate in Medicare;

k. Plaintiff failed to properly withhold Illinois state

income taxes for one employee.

R.86 at 9.

24 No. 06-4435

intendent’s motives to make summary judgment an

impermissible vehicle for the resolution of this case.

Dr. Hawkins admitted in his deposition that, before

Ms. Lewis took time off to care for her ailing parents, her

performance had been satisfactory. He told the school

board about Ms. Lewis’ performance problems only after

she began taking time off to care for her ailing parents, and

his complaints were based largely on the fact that

Ms. Lewis was not in the office to cover general office

duties, answer phone calls or address questions from

vendors or employees. A trier of fact could find that these

problems, along with sporadic late payments, paycheck

discrepancies and other problems cited by the district

court, were not “performance problems” that permissibly

could be attributed to Ms. Lewis, but rather were a direct

result of the District’s failure to respond appropriately

to the challenges presented by her FMLA-protected

absences. Indeed, Dr. Hawkins noted in Ms. Lewis’ perfor-

mance evaluation that “[m]ost of the items that are ‘satis-

factory’ or ‘needs improvement’ are a direct result of

your reduced hour schedule.” R.67, Ex. JJ.11

11

Ms. Lewis did not begin taking FMLA leave officially until

2004, when Dr. Hawkins first informed her of her eligibility

based on the serious health conditions of her parents. However,

a reasonable jury could find that the absences incurred before

she was officially placed on FMLA leave were nevertheless

protected conduct. As we have noted earlier, the District

was well aware that Ms. Lewis was taking leave to care for her

ailing parents. See Burnett v. LFW, Inc., 472 F.3d 471, 478-80 (7th

Cir. 2006) (explaining that an employee need not mention

specifically the FMLA when requesting leave; she merely

must place the employer on notice that she likely has a FMLA-

(continued...)

No. 06-4435 25

The District’s apparent decision to hold Ms. Lewis to

the standard of a full-time employee during the time that

she was taking FMLA leave, in conjunction with its fail-

ure timely to inform Ms. Lewis of her rights under the

FMLA, the school board members’ expressed hostility

towards the Act, and the other direct and circumstantial

evidence presented by Ms. Lewis casts doubt on the

District’s proffered justification for its decision to re-

place Ms. Lewis as bookkeeper. Accordingly, whether

the school board decided to replace Ms. Lewis at least in

part because she had inconvenienced the District by

missing too many days of work under the FMLA, or

whether the decision was based only on the fact that it

felt that she was not a very good bookkeeper, is a ques-

tion of fact that must be decided by a jury.12 Under

these circumstances, we believe that the district court

should have left to the jury the question of whether

11

(...continued)

qualifying condition, and the burden is then on the employer

to investigate whether she is entitled to FMLA leave). Despite

this knowledge, it failed to notify her of her rights as required

under the FMLA. See 29 C.F.R. § 825.301(c) (“[W]ritten notice . . .

must be provided to the employee no less often than the first

time in each six-month period that an employee gives notice

of the need for FMLA leave (if FMLA leave is taken during

the six-month period).”); id. § 825.301(f) (“If an employer fails

to provide notice in accordance with the provisions of this

section, the employer may not take action against an employee

for failure to comply with any provision required to be set

forth in the notice.”).

12

Both parties agree that Ms. Lewis’ contract claim rises and

falls with her FMLA claim. Therefore, we need not address

the contract claim separately here.

26 No. 06-4435

Ms. Lewis’ job performance, unrelated to the impact of her

absenteeism, justified her removal from the bookkeeper

position.

C.

After Ms. Lewis was informed of the District’s decision

to replace her as bookkeeper, her husband and attorney,

David Lewis, wrote an e-mail to Dr. Hawkins stating

that the District’s actions were in violation of the FMLA.

Dr. Hawkins forwarded the letter to the District’s attorney,

Shane Jones. In response to this allegation, Mr. Jones

informed Mr. Lewis that the District had replaced

Ms. Lewis as bookkeeper based on her poor performance,

a non-discriminatory justification permissible under the

FMLA. Specifically, Mr. Jones’ e-mail stated: “The district

has determined that Ms. Lewis’s performance in the

bookkeeper’s job assignment is not satisfactory.” R.26, Ex.

B. Ms. Lewis contends that Mr. Jones’ statement to her

husband regarding her bookkeeping skills was false and

defamatory and that it caused her reputational injury.

In Illinois, a party may be liable for defamation when

he publishes a false and defamatory statement con-

cerning another, with a level of fault amounting at least

to negligence. Parker v. Bank of Marion, 695 N.E.2d 1370,

1372 (Ill. Ct. App. 1998). However, certain statements,

including statements made by a lawyer during the

course of litigation, are accorded absolute privilege and

therefore cannot give rise to a defamation claim. See

Atkinson v. Affronti, 861 N.E.2d 251, 255 (Ill. Ct. App. 2006)

(“An attorney at law is absolutely privileged to publish

defamatory matter concerning another in communica-

tions preliminary to a proposed judicial proceeding, or in

No. 06-4435 27

the institution of, or during the course and as part of, a

judicial proceeding in which he participates as counsel, if

it has some relation to the proceeding.”) (quoting Re-

statement (Second) of Torts, § 586 (1977)). This principle

is true regardless of the attorney’s knowledge of the

statement’s falsity. Id. at 256.

On appeal, Ms. Lewis contends that Mr. Jones’ statement

was not privileged because it was made in response to

an e-mail that Mr. Lewis had sent in his capacity as her

husband, not as her attorney. However, Mr. Jones was

entitled to operate under the reasonable belief that

Mr. Lewis was acting as Ms. Lewis’ attorney. The signature

on the e-mail in question stated that the correspondence

was from David E. Lewis at “The Law Office of David

Lewis.” R.26, Ex. A. Mr. Lewis’ e-mail also referenced

the District’s potential non-compliance with the provi-

sions of the FMLA, which suggested that litigation was at

least being contemplated.

Additionally, even if Mr. Lewis clearly had been acting

as a husband and not as an attorney, Mr. Jones’ state-

ment still would be privileged under Illinois precedent. In

Atkinson, an attorney sent a letter directly to the plaintiff’s

employer, alleging that the plaintiff had engaged in

wrongful acts and notifying the employer of an intention

to hold it vicariously responsible. 861 N.E.2d at 256.

Although the attorney’s statement was made directly to

the plaintiff’s employer (not to another attorney), and no

civil litigation ever ensued, the court held that the state-

ments were privileged because they had been made by

an attorney in contemplation of litigation. Id. Mr. Jones’

alleged defamatory statement occurred in a context that

is even more clearly privileged: It was made by an attor-

ney, in response to a legal inquiry by another attorney,

28 No. 06-4435

concerning the subject matter of litigation that ultimately

ensued. Accordingly, we affirm the district court’s grant

of summary judgment in favor of Mr. Jones on Ms. Lewis’

defamation claim.

D.

Ms. Lewis contends that the defendants, and Dr.

Hawkins in particular, knew that she was in an emotionally

fragile state and, in reckless disregard for her condition and

aware that it would cause her severe and emotional

distress, they permanently reassigned her to a lower

position. She further alleges that Dr. Hawkins feigned

kindness towards her in the time leading up to her dis-

missal, intentionally misleading her about his true inten-

tions so that he could keep her working until he was

able to find a replacement bookkeeper. His subsequent

betrayal, firing her without warning and giving her job

to his old friend, caused her particular emotional distress.

She claims that her fragile emotional state thereby was

broken, and she experienced the physical symptoms of

depression and anxiety. The district court, however,

concluded that “[n]one of these allegations, if true, can be

considered ‘beyond all bounds of human decency,’ even

considering defendant’s authority over plaintiff and

plaintiff’s fragile emotional condition.” R.86 at 11. It

therefore granted summary judgment in favor of the

defendants.

In Illinois, a plaintiff must satisfy three requirements

for a showing of intentional infliction of emotional distress:

“(1) the conduct involved must be truly extreme and

outrageous; (2) the actor must either intend that his

conduct inflict severe emotional distress, or know that

No. 06-4435 29

there is at least a high probability that his conduct will

cause severe emotional distress and (3) the conduct must

in fact cause severe emotional distress.” Honaker v. Smith,

256 F.3d 477, 490 (7th Cir. 2001). Necessarily, however,

“the tort does not extend to mere insults, indignities,

threats, annoyances, petty oppressions, or other triviali-

ties.” Id. (quoting McGrath v. Fahey, 533 N.E.2d 806, 809

(Ill. 1988)). This standard is quite high. In order to meet

the threshold for intentional infliction of emotional distress,

the defendant’s conduct must extend beyond the bounds of

human decency and be considered intolerable in a civilized

community. Id.; see also Kolegas v. Heftel Broad. Corp., 607

N.E.2d 201, 211 (Ill. 1992). Therefore, “to serve as a basis for

recovery, the defendant’s conduct must be such that the

‘recitation of the facts to an average member of the commu-

nity would arouse his resentment against the actor, and

lead him to exclaim[:] Outrageous!’ ” Honaker, 256 F.3d at

490 (quoting Doe v. Calumet City, 641 N.E.2d 498, 507 (Ill.

1994)).

To determine whether the conduct alleged is extreme

and outrageous, we employ an objective standard, taking

into consideration the particular facts of the case. Id. The

Supreme Court of Illinois has described a number of non-

exclusive factors that may inform this analysis, including:

the degree of power or authority which a defendant

has over a plaintiff; whether the defendant reasonably

believed that his objective was legitimate; and whether

the plaintiff is particularly susceptible to emotional dis-

tress because of some physical or mental condition or

peculiarity. Honaker, 256 F.3d at 490-92. In the employer/

employee context, courts have found extreme and outra-

geous behavior to exist where the employer “clearly

abuses the power it holds over an employee in a manner

30 No. 06-4435

far more severe than the typical disagreements or job-

related stress caused by the average work environment.”

Id. at 491. Employers often and necessarily take actions

during the course of business that result in emotional

distress, but those actions cannot be classified as “extreme

and outrageous” unless they “go well beyond the parame-

ters of the typical workplace dispute.” Id.

The events alleged in Ms. Lewis’ complaint, even if true,

simply do not rise to the level necessary to succeed on a

claim of intentional infliction of emotional distress. Cf.

Patterson v. Xerox Corp., 901 F.Supp. 274, 279 (N.D. Ill. 1995)

(involving the persistent harassment of a pregnant em-

ployee by her supervisor, including the berating of the

employee for absence from work while the employee

was hospitalized for premature labor); Pavilon v. Kaferly,

561 N.E.2d 1245, 1251 (Ill. App. Ct. 1990) (finding inten-

tional infliction of emotional distress when an employer

pressured an employee for dates, offered her money in

return for sexual favors, and threatened to kill and rape

her); Milton v. Ill. Bell Tel. Co., 427 N.E.2d 829, 832 (Ill. App.

Ct. 1981) (involving an employer who engaged in an

extensive course of disciplinary and harassing conduct to

coerce the plaintiff to falsify work reports in violation of the

law). Here, Dr. Hawkins was nice to his employee, whom

he knew was experiencing problems at home; whether his

motivation was simply to be compassionate or to keep her

productive is immaterial. For months he told the school

board that he would like to give her a little more time to get

her life back on track, and he expressed sympathy about

her situation. Ultimately, he and the District made what

they perceived to be a legitimate personnel decision. We

cannot subject employers to intentional infliction of

emotional distress claims each time they decide to dis-

No. 06-4435 31

charge an employee—even an employee with severe

emotional problems—unless their conduct truly is egre-

gious. The district court properly granted summary

judgment to the defendants on the intentional infliction of

emotional distress claim.

Conclusion

We therefore affirm the judgment of the district court as

to counts III and IV, the defamation and intentional

infliction of emotional distress claims. However, because

Ms. Lewis has presented sufficient evidence of an imper-

missible retaliatory motivation under the direct method

of proof to create a genuine issue of material fact for trial,

we reverse the judgment of the district court on counts I

and II and remand for further proceedings consistent

with this opinion. Ms. Lewis may recover her costs in

this appeal.

AFFIRMED in part; REVERSED and

REMANDED in part

USCA-02-C-0072—4-17-08