Debra L. Lewis v. School District #70, et al.

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
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 judgment
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 sevenmember
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
Hawkins is the superintendent of the school district, and
he is responsible for overseeing the functions and performance
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
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 schedules
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 session
to discuss employee salaries. Although the meeting
was closed to the public, it was tape recorded in compliance
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 priorities
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
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 available
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 performance.

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
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 "excused,"
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 continued
to do much of the District's bookkeeping work at
her home and on weekends in order to ensure that necessary
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.

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, goodbye,"
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 "satisfactory"
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.

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 eightyone-
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
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 reassignment,
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 reassignment
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 District'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
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 discovered
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 members
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 intentional
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 summary
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.

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 defendants,
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.

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, entitled
them to an additional three days to file. Rule 6(e)
allows a party additional time to file an answer whenever
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 prescribed
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 something
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 themselves
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 magistrate
judge. It concluded:

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
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 sufficient
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) (upholding
a district court's grant of an extension based on
"excusable neglect" when an attorney simply miscalculated
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
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 determination
of "excusable neglect" is "at bottom an equitable
one, taking account of all relevant circumstances surrounding
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 proceedings
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,
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. (Emphasis added by MoreLaw) 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 position
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

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)). Specifically,
"[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 substantive
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 circumstantial
evidence of her employer's discriminatory motivation,
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."

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 employment
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 decision."
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 involves
an admission or a statement by the decision maker
regarding his discriminatory intent. Circumstantial evidence
"allows the trier of fact to infer intentional discrimination
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 circumstantial
evidence of a discriminatory motive sufficient
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 absenteeism.
These statements, made by the District's superintendent
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 superintendent
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
was at that same meeting that the board members instructed
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 completed
adequately while Ms. Lewis was taking intermittent
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 periods
of intermittent leave prevented her from timely
completing all of the duties she had performed as a fulltime
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 performance
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 conclude 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 essential
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 period
of FMLA-protected intermittent leave. The imposition
of such unrealistic expectations, if accepted by the jury,
would be relevant and probative evidence of a retaliatory
intent.

Finally, we believe that a reasonable jury could conclude
that the actions of the District at the time of her
dismissal from the bookkeeper position provide circumstantial
proof of retaliatory motive. In addition to the
evidence that she was demoted permanently during the
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 discriminatory
motivation. See Rudin, 420 F.3d at 723. Additionally,
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 circumstantial
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 incompetence
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.

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 district
court. However, the evidence presented by Ms. Lewis
casts sufficient doubt upon the District's and the superintendent'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' performance
evaluation that "[m]ost of the items that are ‘satisfactory'
or ‘needs improvement' are a direct result of
your reduced hour schedule." R.67, Ex. JJ.11

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 failure
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 replace
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 question
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
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 concerning
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 communications
preliminary to a proposed judicial proceeding, or in
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 Restatement
(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 provisions
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' statement
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 statements
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 attorney,
in response to a legal inquiry by another attorney,
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 dismissal,
intentionally misleading her about his true intentions
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
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 trivialities."
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 community
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 nonexclusive
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 distress
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 outrageous
behavior to exist where the employer "clearly
abuses the power it holds over an employee in a manner
far more severe than the typical disagreements or jobrelated
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 parameters
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 employee
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 intentional
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 discharge an employee - even an employee with severe
emotional problems - unless their conduct truly is egregious.
The district court properly granted summary
judgment to the defendants on the intentional infliction of
emotional distress claim.

* * *

http://www.ca7.uscourts.gov/tmp/CT1FG2P5.pdf

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 impermissible
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

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