WILLIAM M. CONLEY, District Judge.
Melissa Nigh brings this action pursuant to the Family and Medical Leave Act, 28 U.S.C. § 2601 et seq., against her former employer, the School District of Mellen, for allegedly (1) failing to restore her to the equivalent position of Principal/District Administrator after she returned from FMLA leave; (2) improperly considering her FMLA leave in initiating the non-renewal of her contract; and (3) ultimately failing to renew her contract in retaliation for her exercise of FMLA rights. Defendant moves for summary judgment on all three claims. (Dkt. #16.) For the reasons explained below, the court agrees that Nigh has failed to produce enough evidence to survive summary judgment as to the second of her claims; however, a reasonable jury could find on this record that defendant interfered with Nigh's right to be restored to her equivalent position and retaliated against her for taking FMLA leave. Accordingly, Nigh may proceed to trial on those claims.
In August of 2008, plaintiff Melissa Nigh began her employment for the School District of Mellen, Wisconsin ("the District"), as the Principal for Pre-Kindergarten through grade 12. When she was hired, there was the possibility that the position would eventually be consolidated into Principal/District Administrator to cut expenses. Until he retired on June 30, 2010, District Administrator James Schuchardt supervised her but gave her no performance evaluations.
In May of 2010, the District entered into a two-year contract with Nigh, making her its first combined Principal/District Administrator.
Beginning July 1, 2010, when Nigh officially became the Principal/District Administrator, she was subject to the supervision and control of the Mellen School District Board of Education ("the Board"), which was then comprised of the following seven elected members: Vicky Ellias (who also served as president), Anthony Huber, Lesley Sederholm, Nicki Lazorik, Ronnie Rossberger, Wendy Koosman and Becky Bergey.
Nigh completed the District budget for both the 2010-2011 school year and the 2011-2012 school year. The Board approved those budgets in October 2011 and October 2012, respectively.
Nigh received no discipline or warnings for her work performance in 2010 or 2011. A staff performance evaluation completed in April of 2011 was mostly positive, with Nigh receiving all rankings of 3 and 4 (out of 4) from the staff members who completed the evaluations.
That same month, however, the Board presented Nigh with its own performance evaluation for the 2010-2011 school year, which was distinctly less positive. She achieved an overall rating of 1059 points out of a total of 1800, which equated to an average rating of 58.8%. Had Nigh achieved a "proficient" rating in all assessment areas, she would have scored 1350 out of 1800 points, or 75%.
Rossberger prepared a typewritten letter as part of the evaluation, highlighting several areas of concern. These included: (1) Nigh's failure to provide preliminary financial information and scenarios to the board and community in light of Wisconsin Act 10; (2) her failure to meet an expectation for follow-up of others' duties and more documentation to permit more efficient tracking of effectiveness; (3) her excessive reliance on others to provide guidance; (4) poor values and the inability to hold professional staff to a high ethical standard; (5) poor execution, enforcement and follow-up of policies intended to protect students and staff; (6) an inability or unwillingness to monitor staff effectively to ensure enforcement of school policies and procedures; and (7) her failure to articulate the district's purpose and priorities to the community with respect to financial matters and the Board's positions.
In her personal evaluation, Board member Bergey rated Nigh's performance "minimal" or "basic" in 54 of 65 categories, with ratings of "proficient" in the remaining 11 categories. She also highlighted concerns of her own, including: (1) Nigh's failure to follow up on Board recommendations concerning strategies to increase community presence during strategic planning meetings; (2) failure to take on a leadership role and minimal evidence of "self-directed" leadership; (3) difficulties working under the Board and satisfying staff direction; and (4) irritation and uncommunicativeness when disagreeing with the Board.
Board member Lazorik's personal evaluation rated Nigh's performance as "minimal" in 5 categories, "basic" in 43 categories, "between basic and proficient" in 7 categories, and "proficient" in 11 categories. She also noted her own concerns with Nigh's performance, including: (1) selectiveness in choosing information to research and present to the Board; (2) failure to demonstrate that each Board member's statement was equally important to others'; and (3) failure to provide detailed and informative administrative reports to the Board.
Disappointed in her evaluation, Nigh provided a written rebuttal to some of the negative commentary.
In November of 2011, the Financial Manager for the District, Joe Andrashie, resigned. He had been hired in 2006 and had received excellent performance reviews from all the Superintendents and Administrators before Nigh, but according to Jeff Ehrhardt, a former District Superintendent,
At a special Board meeting convened on November 2, 2011, Nigh presented a memorandum to the Board with two possible scenarios she asked the members to consider. (See Peter Reinhardt Aff. Dep. Ex. 14 (dkt. #44-23).) The first scenario involved the hiring of a business manager, who would take on both the duties of the current financial manager and "budget forecasting for the future." This business manager would also assume "more financial responsibility" and take "more initiative on other items, such as overseeing grants, food service, and building and grounds." (See id. at 1.) The second scenario provided for the hiring of: (1) a bookkeeper, who in Nigh's words would "have to be very, very good with Skyward," administrative software designed for K-12 school districts; (2) a superintendent who would work one to two days per week on budgetary implications, personnel handbooks, budget forecasting and staff discipline; and (3) an Assistant District Administrator/Principal. (See id. at 1-2.)
Nigh recommended hiring a full-time financial manager with a business administrator license, but the Board ultimately approved the hire of a full-time bookkeeper and directed Nigh to post the position as a limited-term position for the remainder of the school year. On November 28, 2011, the District hired Jane Matthias; she had no background with the Skyward program and had to be trained in that capacity.
By this time, Nigh had begun to find it challenging to find enough time to complete all the tasks associated with her position, as indicated by the bullet points she prepared for a Board meeting on December 7, 2011. (See Peter Reinhardt Aff. Dep. Ex. 84 (dkt. #72).) Around this same time, an unspecified incident occurred involving Carol Popovich, an administrative assistant, and Laurie Neibauer, a staff member. Nigh called a meeting with the two individuals, and Popovich eventually walked out because she felt that Nigh had reprimanded her in front of a fellow employee. The parties dispute whether the working relationship between Nigh and Popovich deteriorated after that incident.
Board members completed Nigh's next performance evaluations between late October and December 14, 2011. The Board used a different evaluation tool to conduct this evaluation; under the new rubric, Nigh received 621 out of 1148 points, which translated to a percentage of 58%. Bergey again prepared a summary of board members' observations and concerns; it noted that "Melissa's strength is predominately in the area of the Principal responsibilities portion of the position. Melissa shows competence and enthusiasm in the area of Curriculum Planning and Development."
Bergey also wrote that the most prominent themes or areas of concern arose in the areas of Organization, Finance, and Physical Plant Management; Board Relations; and Policy and Governance. Her summary went on to list the "[c]ollective majority critiques relating to this year's three lowest scoring categories." (Peter Reinhardt Aff. Dep. Ex. 10 (dkt. #44-21) LM01207.) In the Organization, Finance, and Physical Plant Management, those critiques included "weak/non-existent leadership," "lack of initiative," "neglectful and unaware of failures and chaos in the financial
As part of this evaluation, Nigh received a detailed set of written expectations for her future performance. They included the following:
(See id. at LM01208 (emphasis in original).)
Defendant contends that, by this time, the majority of the board members had serious concerns about Nigh's ability to perform her job, although there is a dispute as to whether they believed she could not continue in her current position at the time. (See Pl.'s Resp. DPFOF (dkt. #74) ¶ 38.) When the Board members completed this second evaluation, they did not yet know of Nigh's health issues.
The Board planned to present Nigh with her evaluation at its December 21, 2011, meeting, but Nigh was absent. At the beginning of December, she had begun experiencing abdominal pain and severe vomiting and was unable to eat. Her symptoms had become "unbearable" by December 13, 2011. Nigh used sick days or sick leave on December 13th, 15th, 16th, 20th, 21st, 22nd and 23rd.
Nigh contacted then Board President Lesley Sederholm just before the December 21st meeting and advised her that she was ill and would not be attending. During the call, Nigh "sensed" Sederholm did not believe she was actually ill. Nigh also missed other Board meetings due to illness.
On December 23, 2011, Nigh communicated to the Board that she was scheduled to have gallbladder surgery on December 30, 2011, in Duluth, Minnesota. She sent a second e-mail on December 28, 2011, updating the Board and staff on her upcoming surgery and her plan to return to work the following Tuesday. Nigh had the surgery as scheduled and returned to work on
From January of 2012 onward, Nigh complied with most of the expectations on the list. She prepared and presented her monthly District Administrator reports, as well as separate reports detailing how she was working toward proficiency in each of the nine categories of the evaluation tool. She prepared weekly District Administrator reports and provided them to the Board. She attended PAC meetings and updated the Board on those meetings. The parties dispute whether she timely completed District Guidelines.
From January 3 through January 5, 2012, Nigh worked modified days due to illness or medical appointments. On January 6, Nigh informed the Board that she was still in a great deal of pain and requested a modified work schedule, asking to be permitted to work half-days for the next three to four weeks. That same day, Rossberger sent an e-mail to the Board regarding Nigh and her work restrictions.
(See Oyvind Winstrom Supp. Decl. Dep. Ex. 92 (dkt. #86-13).) On the 6th and from January 9th through 11th, Nigh worked four hours per day consistent with her doctor's instructions.
At a special meeting on January 11, 2012, the Board approved Nigh's request for a modified schedule. On January 12th, Nigh worked only six hours, and on January 13th, she worked only four hours, both per her doctor's instructions. Nigh did not work the entire week of January 23 through January 27, because she was in Marshfield for medical testing. Because she was going to be absent from the Board's meeting on January 23, Nigh prepared her Administrator notes and comments ahead of time. Nigh continued to update the Board on her health, via e-mail, throughout January of 2012.
At least by January 17, 2012, Nigh believed that non-renewal of her contract was a possibility, based on the way Board members had begun to treat her.
On January 23, 2012, in a closed session, the Board discussed Nigh's job performance and decided to issue a letter ending the automatic rollover of her contract. On January 24th, the District's counsel prepared a letter notifying Nigh that the automatic rollover of her contract had been canceled. It stated in part:
(See Peter Reinhardt Aff. Dep. Ex. 13 (dkt. #44-22).) The Board approved the letter at its meeting on January 26, 2012, and Rossberger hand-delivered it to Nigh the morning of January 28, 2012. Rossberger later prepared an e-mail to the Board that described the letter's delivery and Nigh's reaction. According to that e-mail, Rossberger was careful to distinguish between "ending the automatic rollover language" and an actual "non-renewal." (See PPFOF (dkt. #43) ¶ 70.)
On February 2, 2012, Nigh submitted a request for Family and Medical Leave, along with the appropriate paperwork, seeking a leave of absence from February 2nd through February 15th. Her leave request was subsequently extended until February 22, 2012. On February 15th, the
While Nigh was on leave, there was initially no Administrator or Superintendent at the school. Accordingly, several Board members took a more active role in the day-to-day operations of the District to address various issues that surfaced during Nigh's absence. The Board also held numerous closed-door meetings to deal with staffing and student issues, and administrative staff and Board members periodically entered Nigh's office to search for materials and files.
During this time, the Board decided it would send someone to Nigh's house to retrieve her keys and cut off Nigh's access to her school e-mails. There was no official policy requiring that employees on leave turn in their keys and give up e-mail access. In the past, some other employees had, like Nigh, lost access while on FMLA leave, while others had not. Board President Sederholm called Nigh to inform her of the Board's decision, and Nigh became upset and started to cry. Sederholm understood the Board's decision was hurtful, but the District nevertheless had IT cut off Nigh's school e-mail access, and on or about February 2, it sent someone to her home to pick up her keys.
The parties dispute the motivation underlying the Board's decision to revoke Nigh's access. The Board frames it as an attempt to help Nigh, who had previously informed the Board members that she was having a difficult time separating herself from work; Sederholm claimed that Nigh was sick, but continued coming into school after hours. Nigh disputes these proffered reasons, and the parties do not dispute that the only time Nigh actually went to school while on leave was to watch her son's basketball game.
At some point during Nigh's medical leave, Administrative Assistant Popovich began to monitor Nigh's e-mails.
Nigh returned from leave on February 22, 2012, as scheduled. The next day, the Board issued Nigh a written reprimand with fourteen, separate bullet points detailing alleged policy violations and misconduct. (See Oyvind Wistrom Decl. Ex. 20 (dkt. #25-20).) The parties dispute when the Board began drafting the reprimand, although defendant contends that the Board discussed issuing the reprimand as early as December of 2011. There are no minutes from February of 2012 reflecting formal action by the Board with respect to
Each of the fourteen bullet points described a separate "violation." The parties dispute whether Nigh was actually at fault for any of the alleged violations. Nigh maintains that the reprimand was unjustified. (See Pl.'s PFOF (dkt. #43) ¶¶ 112-234.) The list included:
That same day, Nigh also received a revised list of expectations, including that she: ask for help from the Board when needed; provide the Board with planned weekly schedules; prepare thorough monthly written reports; enforce policies and complete guidelines in a timely manner; improve communications with the Board via weekly reports; and attend all PAC meetings. Nigh complied with most of these expectations, although defendants again contend that she did not complete District Guidelines in a timely fashion.
On June 6, 2012, Nigh submitted a written rebuttal to the issues raised by the reprimand. The Board issued a written "sur-rebuttal" on August 22, 2012.
On or about March 4, 2012, Nigh submitted a request for a second leave of absence of eight weeks. The request indicated that her medical team "would continue to evaluate her health status as time moves on" and would adjust her return date accordingly. The Board approved that request as well. There is no dispute that Nigh continued to have a serious health condition and was eligible for FMLA leave.
During her second leave, Nigh's relationship with the Board continued to deteriorate. While at her son's basketball games, for example, she observed that Board members Hubert and Lazorik were ignoring her, although their motivations are in dispute. Furthermore, at one game, Ehrhardt was sitting in front of Nigh but told her he could not talk to her "because there are eyes watching." Nigh's presence at the basketball games also apparently raised doubts in the minds of some Board members as to her condition: for example, Matthias recalls Lazorik stating she thought Nigh was not really ill and was actually "faking it," though her specific working is in dispute
On or about April 17, 2012, Nigh notified Matthias in the administrative offices that she would be returning to work on May 1, 2012. After learning of Nigh's planned return date, Cox sent an e-mail to the Board that read:
(Peter Reinhardt Aff. Dep. Ex. 29 (dkt. #44-29).) Accordingly, at its April 28th meeting, the Board discussed the situation and voted to approve Cox's continued employment on a part-time basis until June 30, 2012.
On or about April 26, 2012, Nigh submitted the fitness for duty certification form that the District required for employees returning from FMLA leave. That same day, Nigh and her attorney, Dan Cieslak, met with Cox to discuss Nigh's return to work.
Following the meeting, Nigh e-mailed Cox requesting an updated job description setting forth her revised duties, to avoid confusion concerning their respective roles. Cox responded via e-mail and provided his understanding of their respective duties, which included Cox assuming responsibility for finance, building and grounds, food service, the 21st Century grant and staff evaluations. Cox also indicated he would be vacating her office. Nigh responded, "This sounds like it may be fine. However, due to my circumstances, I will not be meeting with the Board unless my attorney is present either by phone or in person." On April 30, 2012, Cox prepared and sent an e-mail informing staff of this division of responsibilities.
On May 1, 2012, Nigh returned to work in the position of Principal/District Administrator, with no reduction in her pay or benefits or change in her title. By this time, Cox had vacated her office and set up a new office space in the old meeting/break room.
On May 2, 2012, the Board met to discuss the roles Cox and Nigh would assume following Nigh's return from leave. Cieslak had originally been scheduled to appear by telephone on Nigh's behalf, but he was later informed that he could not attend unless he could appear in person, as the District's attorney was appearing by phone. Ultimately, the Board formally charged Cox with overseeing finance, building and grounds, food service, staff evaluations and the 21st Century grant. Nigh was deemed responsible for curriculum, response to intervention, board policy guidelines, student issues and student discipline. Cox and Nigh were to work collaboratively with one another and were to report directly to the Board. Cox's schedule going forward was reduced to either two or three days per week.
The Board's decision altered Nigh's duties and responsibilities going forward. Essentially, although she remained responsible for all Principal duties, she had lost authority over Superintendent duties. In addition, she was no longer involved in preparing agendas for Board meetings and Committee meetings, nor was her input sought. The parties dispute whether she continued to serve as the Board's liaison to staff and the community.
Nigh's involvement in certain areas and activities also changed somewhat after her leave. For example, Popovich did not know Nigh was supposed to be invited to at least two meetings and failed to notify her. Nigh found out about the first meeting before it occurred and was able to attend despite the lack of notification, but she did not hear about the second meeting and did not attend. Nigh also did not participate in the hiring of a business education teacher and a special education/health aide, and her name was removed from letters of intent to staff and from lunch bills. She no longer received copies of agendas for meetings, although defendant argues that they were always accessible to her via the website or public
On May 3, 2012, Cox sent an e-mail to the Board regarding the budget. (See Peter Reinhardt Aff. Dep. Ex. 54 (dkt. #47).) In part, the e-mail stated: "With Melissa returning, it has put a real twist in our effort to balance this year's budget." (Id.)
On May 30, 2012, the Board prepared a letter setting forth its expectations for Nigh. The letter indicated that in the Board's view, Nigh continued to work as the District Administrator/Principal and would continue to be evaluated in both capacities. It also instructed Nigh to "work collaboratively" with Cox:
(See Peter Reinhardt Aff. Dep. Ex. 126 (dkt. #65).)
At some point following Nigh's return, a student noticed that the sign over her office door, which had stated "Superintendent," was missing. It is unknown what happened to the sign, but Nigh never requested that a new one be issued. No one ever investigated the sign's disappearance.
On September 19, 2012, Nigh received a second written reprimand, purportedly involving several additional deficiencies in her performance. (See Peter Reinhardt Aff. Dep. Ex. 32 (dkt. #44-32).) As with the first reprimand, the parties dispute whether the reprimand accurately identifies the alleged deficiencies. They included:
The Board also provided Nigh with updated expectations that criticized her for failing to inform the Board of her struggles and instructed her to report on her progress in all evaluation categories, including those over which Cox had primary authority.
On October 15, 2012, Nigh submitted a written rebuttal to the contents of the September 19, 2012 reprimand. (See id. at Ex. 33 (dkt. #44-33).) The rebuttal addresses three of the four purported violations but does not claim that the reprimand for her failure to complete Guidelines was issued inappropriately.
On September 19, 2012, the same date as the second reprimand, Nigh submitted a memorandum of resignation to the Board.
On October 24, 2012, the Board voted 6-0 to send Nigh a preliminary notice that it was considering non-renewal of her individual contract pursuant to Wis. Stat. § 118.24. Nigh initially requested a formal hearing, but ultimately decided to forego it. She did, however, request through her attorney a written breakdown of the reasons substantiating the Board's decision to issue the preliminary notice. Attorney Robert Butler, Wisconsin Association of School Boards ("WASB") Associate Executive Director and Staff Counsel, responded via letter, including the attachments Nigh had requested "to substantiate the Mellen School Board's action." Those attachments included the written reprimands of February 23 and September 19. (See generally dkt. #45.) The letter also included what appears to be a summary document of sorts detailing Nigh's alleged "Failure to meet the District's Performance Expectations." One of the listed failures was Nigh's "inability to understand, implement and establish financial budgeting of the District," although budgeting was no longer Nigh's responsibility after she returned from FMLA leave. Another listed reason was Nigh's alleged failure to inform the Board why she was absent from certain Board meetings.
In December of 2012, the Board presented Nigh with her 2012-2013 performance evaluation. She received a total score of 469 out of a possible 972 points, for a total percentage score of 48%. At least one Board member, Ehrhardt, did not provide any numerical ranking for Staff Evaluation and Personnel Management, because those areas were not part of Nigh's responsibilities at the time; this resulted in a default ranking of 0/12 points. One Board member's evaluation criticized her for missing numerous Board meetings; the parties dispute whether any of these absences were related to Nigh's illness or leave. Another comment criticized her for failing to work with Cox or use him as a resource, although Cox himself apparently felt they had a good relationship after Nigh's return and that Nigh had been receptive to his mentoring. Cox also received a performance evaluation at this time and received a total score of 797 out of 972, or 82.7%.
On December 18, 2012, the Board voted 6-0 to non-renew Nigh's original contract "for the reasons that were previously provided to you," thereby ending her employment on June 30, 2013. (See Peter Reinhardt Aff. Dep. Ex. 47 (dkt. #44-38).) Nigh continued as Principal/District Administrator until that date without a reduction in pay or benefits.
Summary judgment is appropriate if the moving party "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter law." Fed.R.Civ.P. 56(a). In ruling on a motion for summary judgment, the court views all facts and draws all inferences in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law
The party moving for summary judgment bears the initial burden of informing the district court of the basis for its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the initial burden is met, for an issue on which the nonmoving party will bear the burden of proof at trial, the nonmoving party must "go beyond the pleadings" and "designate `specific facts showing that there is a genuine issue for trial.'" Id. at 324, 106 S.Ct. 2548. It is not sufficient to "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Nor may the nonmoving party "merely rely on conclusory pleadings" to withstand the motion. Colan v. Cutler-Hammer, Inc., 812 F.2d 357, 361 (7th Cir.1987). Rather, the nonmoving party must produce "evidence ... such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. If he fails to do so, "[t]he moving party is `entitled to a judgment as a matter of law.'" Id. at 323, 106 S.Ct. 2505.
Nigh first brings a claim for interference with FMLA rights pursuant to 29 U.S.C. § 2615(a)(1). An interference claim under § 2615 requires an employee to establish that: (1) she was eligible for the FMLA's protections; (2) her employer was covered by the FMLA; (3) she was entitled to leave under the FMLA; (4) she provided sufficient notice of her intent to take leave; and (5) her employer denied her FMLA benefits to which she was entitled. Burnett v. LFW Inc., 472 F.3d 471, 477 (7th Cir.2006). The fifth element — whether the District denied FMLA benefits to which Nigh was entitled — is the only one at issue in this case.
Nigh primarily contends that the District interfered with her FMLA rights by failing to restore her to an equivalent position when she returned from leave for the second time. The FMLA entitles an eligible employee to 12 workweeks of leave during any 12-month period "[b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1)(D). An employee who takes leave under § 2612 must be restored either to the same position held at the time leave began or to an equivalent position "with equivalent employment benefits, pay, and other terms and conditions of employment." 29 U.S.C. § 2614(a)(1). Failure to reinstate an employee to an equivalent position violates the FMLA's interference provision, § 2615(a)(1). See Breneisen v. Motorola, Inc., 512 F.3d 972, 977 (7th Cir. 2008).
The District first contends that Nigh was restored to an equivalent position, necessitating dismissal of this interference claim. Under the FMLA, "[t]he test for equivalence is strict." Id. Its implementing regulations provide that:
29 C.F.R. § 825.215(a).
Even so, the equivalence requirement "does not extend to de minimis, intangible, or unmeasurable aspects of the job." 29
The District would analogize this case to Montgomery, pointing out that (1) Nigh's job title did not change upon her return; (2) her pay and benefits remained the same; and (3) she did not lose any opportunities for promotion. While several of Nigh's duties were reassigned upon her return — with Cox taking over in the areas of building and grounds, finance, food service, staff evaluations and the 21st Century grant — the District characterizes those changes to her duties as de minimis, particularly given that, as in Montgomery, her title, pay and other terms and conditions of employment remained the same.
While there are aspects of this case analogous to Montgomery, Nigh does not depend on the sort of hazy distinction between "truly administrative" and "clerical" work on which the Montgomery plaintiff relied. Rather, Nigh lost responsibility for, and authority over, all finance, personnel and building and grounds matters. In fact, the Board later reprimanded Nigh for authorizing paid time off because it had reassigned authority over such matters to Cox, strongly suggesting that her status had changed, even if her nominal title was the same. Additionally, she was excluded from hiring decisions; she no longer received meeting agendas; and she missed at least one committee meeting because it was no longer clear that she was invited.
These changes in her authority and responsibilities are sufficient to establish a genuine dispute of fact as to whether defendant failed to restore Nigh to an equivalent position after her leave. See Arrigo v. Link Stop, Inc., 975 F.Supp.2d 976, 987 (W.D.Wis.2013) ("loss of management responsibilities could be significant in itself to show that [an employee] was not returned to an equivalent job"); Brown v. Hartt Transp. Sys., Inc., 725 F.Supp.2d 210, 230 (D.Me.2010) (genuine dispute of material fact as to equivalency of position post-leave where employee lost management authority and involvement with his former accounts was reduced).
The District also argues that even if Nigh were not restored to an equivalent position, the decision was entirely unrelated to her leave and cannot constitute an FMLA violation. Legally speaking, the District is correct that "[t]here are limitations on an employer's obligation to reinstate an employee." Mitchell v. Dutchmen Mfg., Inc., 389 F.3d 746, 748 (7th Cir.2004). "An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period." 29 C.F.R. § 825.216(a). In Kohls v. Beverly Enters. Wis., Inc., 259 F.3d 799 (7th Cir. 2001), the Seventh Circuit explained:
Id. at 805. Thus, once an employee has established she is entitled to the FMLA benefit she claims, "[t]he employer may then present evidence to show that the employee would not have been entitled to her position even if she had not taken leave." Id. at 804. Moreover, it is then the employee's burden to "overcome the employer's assertion, as she carries the burden of demonstrating her right to the entitlement." Id.
Furthermore, even the fact that FMLA leave allows an employer to discover performance deficiencies does not preclude the employer from basing a future adverse action on those deficiencies. See, e.g., Schaaf v. Smithkline Beecham Corp., 602 F.3d 1236, 1242 (11th Cir.2010) ("[T]he [FMLA's] purpose is not implicated in the least if an employee's absence permits her employer to discover past professional transgressions that then lead to an adverse employment action against the employee."); Kohls, 259 F.3d at 806 ("The fact that the leave permitted the employer to discover the problems [cannot] logically be a bar to the employer's ability to fire the deficient employee.").
Defendant relies on this framework, arguing that Nigh would not have been entitled to her position regardless of FMLA leave due to: (1) her deficient performance; and (2) her "request for help" at the November 2, 2011 meeting, when she recommended hiring a business manager. It further contends that it was free to take adverse action against her even if it would not have realized how poor her performance was absent her leave. While cases like Kohls and Schaaf would ordinarily make it difficult for Nigh to overcome the District's defense, Nigh accurately points out that this case is different in one crucial aspect: timing. In both Kohls and Schaaf, the employers discovered the performance issues for which they ultimately terminated their employees after those employees took their FMLA leave. See Schaaf, 602 F.3d at 1243 ("Here, the evidence shows that Schaaf was demoted because of managerial ineffectiveness that revealed itself in full only in her absence[.]"); Kohls, 259 F.3d at 806 ("[I]t is clear that the employer did not discover many of the deficiencies in Kohls' work — particularly with respect to the checkbook — until after Kohls took leave."); see also Cracco v. Vitran Exp., Inc., 559 F.3d 625, 635 (7th Cir.2009) (interference claim failed where plaintiff "offered no evidence to dispute that the investigation began, and his shortcomings were discovered, after his leave period commenced").
In contrast, here, the District was aware of Nigh's performance issues months before she took leave. As early as April of 2011, the Board had identified a number of purported problems with Nigh's performance. By December of 2011, the Board specifically recognized that Nigh was struggling to complete her Superintendent duties — including areas like finance and physical plant management. Nevertheless, the District did not relieve her of those duties until after she returned from her second FMLA leave in April of 2012.
In Kohls, the Seventh Circuit suggested that a lapse in time between discovery of deficiencies and demotion may create a genuine dispute of fact in the context of an FMLA interference claim.
Kohls, 259 F.3d at 806. These circumstances better fit the District's actions here. The Board was well aware of Nigh's struggles in her role as District Administrator months before she took her second FMLA leave, but it did not divest her of her authority in that area until after that leave. In fact, the record indicates that the decision to retain Cox was made the same day that the Board learned Nigh planned to return from leave in May, and the official vote to transfer some of her duties to Cox took place the day after she returned. A reasonable fact finder might infer, based on that timing, that Nigh would have continued with her full complement of duties and powers as Principal/District Administrator had she not taken FMLA leave.
Additional evidence also renders summary judgment on this claim inappropriate. For example, the District concedes that it initially hired Cox in order to accommodate Nigh's absence, not for reasons related to her performance or her memo of November, 2011. This, too, might allow a reasonable jury to infer that Nigh's leave, not her performance, caused the board to assign her duties to Cox after her return. Cf. Breneisen, 512 F.3d at 978 (reversing grant of summary judgment on interference claim where employee's job duties had been distributed to others during leave to accommodate his absence, rather than for some other business reason). A reasonable trier of fact might find further grounds for such an inference given comments Lazorik concededly made about believing that Nigh was "faking" her illness, the behavior of other Board members during Nigh's second leave and Cox's derogatory remarks about Nigh's lack of long-term illness. See, e.g., Goelzer v. Sheboygan Cnty., Wis., 604 F.3d 987, 994 (7th Cir.2010) (jury could be swayed by comments "that could suggest frustration with Goelzer's use of FMLA leave").
This is not to say that the trier of fact will make such an inference. Indeed, there is ample evidence to infer that responsibilities resulting from combining the dual responsibilities of principal and district manager in one new position may have proved too much for Nigh (or anyone else), at least given the District's expectations, and that its action in hiring Cox and splitting duties was a recognition of this fact, or at least of Nigh's limitations immediately upon her return from her second FMLA leave. But the record can also support the opposite conclusion, not only because of the suspicious timing and ambiguous comments from Board Members, but also given that the Board appeared to have stripped Nigh of her authority in several areas (rather than, for instance, hiring Cox as a subordinate to aid her in accomplishing all her tasks) and apparently never restored that authority to her. These competing inferences are what make for a trial. Accordingly, the District is not entitled to summary judgment on this claim.
Nigh also contends that defendants interfered with her FMLA rights by using her leave as a "motivating factor" in the decision to non-renew her contract. Her source of legal authority is 29 C.F.R. § 825.220, which provides that "employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions[.]" See, e.g., Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1125-26 (9th Cir.2001) (consideration of absences in termination decision actionable if those absences were covered by the FMLA); Walters
Generally, the Seventh Circuit analyzes "motivating factor" claims under the rubric of retaliation, not interference. See, e.g., James v. Hyatt Regency Chi., 707 F.3d 775, 781 (7th Cir.2013); Pagel v. TIN Inc., 695 F.3d 622, 631 (7th Cir.2012); Breneisen, 512 F.3d at 978 ("[T]he FMLA protects employees from being discriminated or retaliated against for exercising their FMLA rights.... For instance, if an employee takes FMLA leave, an employer cannot use it as a negative factor in hiring, promotions, or disciplinary actions.") (internal citations omitted). Furthermore, other courts have held that claims premised on termination that occurred some amount of time after leave are better analyzed as retaliation claims. See, e.g., Seeger v. Cincinnati Bell Telephone Co., LLC, 681 F.3d 274, 283 (6th Cir.2012) (district court properly confined analysis to retaliation theory where plaintiff received all leave to which he was entitled, returned to work, was reinstated and was terminated some weeks later); Stallings v. Hussmann Corp., 447 F.3d 1041, 1051 (8th Cir.2006) (district court properly analyzed claim as one for retaliation, not interference, where plaintiff received leave, returned to work, and was terminated more than a month later).
This court need not rely on the above authority in precluding Nigh from pursuing a separate interference claim based on her non-renewal, however, because even if she were permitted to do so, Nigh has not produced enough evidence to survive summary judgment on that theory. As support, Nigh points only to the letter and attachments substantiating the Board's intent to non-renew. (See Peter Reinhardt Aff. Dep. Ex. 50 (dkt. #44-39).) The summary document in the attachments details a number of ostensible "[f]ailure[s] to meet the District's Performance Expectations," one of which reads:
(Id. at Dep. Ex. 51 (dkt. #45) 2-3.) Nigh argues that this statement is an admission that defendants improperly considered her absence during FMLA as a reason to non-renew her contract.
Even if this statement alone were sufficient to support an interference claim,
Nor would such an inference be reasonable on this record. The statement in question appears under the subheading "Communication with the Board" and faults Nigh for missing meetings without communicating the reason for her absence. (See Peter Reinhardt Aff. Dep. Ex. 51
Nigh could also conceivably argue (although she did not) that the other evidence adduced of improper motivation goes to support her interference claim. As will be discussed below, see discussion infra Section II, Nigh has in fact presented sufficient evidence for a reasonable jury to find that the District retaliated against her for exercising her right to FMLA leave, and she is free to argue in that context that the summary document statement supports such an intent. But that statement alone is not enough to build an entirely separate claim — one for which she need not prove motivation, Kauffman v. Fed. Exp. Corp., 426 F.3d 880, 884 (7th Cir.2005) — premised on the same adverse employment action. Accordingly, while Nigh will be allowed to challenge her termination under the standard of retaliation, which the parties have briefed extensively and in support of which she cites significant evidence, she may not pursue a separate interference claim for non-renewal based only on the summary document statement.
Finally, Nigh claims that the District retaliated against her for exercising her rights under the FMLA in violation of 29 U.S.C. §§ 2615(a)(2) and (b). See Kauffman, 426 F.3d at 884 ("We have construed [§§ 2615(a)(2) and (b)] to create a cause of action for retaliation."). Courts evaluate a claim of FMLA retaliation the same way as claims for retaliation under other employment statutes. Buie v. Quad/Graphics, Inc., 366 F.3d 496, 503 (7th Cir.2004). Thus, to prove retaliation, Nigh may proceed under the direct or indirect methods of proof.
In this case, Nigh chooses to proceed under the direct method of proof only. (See Pl.'s Br. Resp. (dkt.#78) 16.) The direct method requires that Nigh "present evidence of (1) a statutorily protected activity; (2) a materially adverse action taken by the employer; and (3) a causal connection between the two." Caskey v. Colgate-Palmolive Co., 535 F.3d 585, 593 (7th Cir.2008). Taking FMLA leave is indisputably a statutorily protected activity. The parties also agree that the decision to non-renew Nigh's contract in December of 2012 constitutes a materially adverse employment action. Accordingly, the central question on summary judgment is whether Nigh has presented sufficient evidence to permit a reasonable trier of fact to conclude that her non-renewal "had a discriminatory motivation." Lewis v. Sch. Dist. #70, 523 F.3d 730, 741 (7th Cir. 2008) (quoting Rudin v. Lincoln Land
As a preliminary matter, the proper standard of causation remains unclear. In Lewis v. School District #70, the Seventh Circuit held that a plaintiff in an FMLA retaliation case "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.'" Id. at 741-42 (emphasis in original) (quoting Culver v. Gorman & Co., 416 F.3d 540, 545 (7th Cir.2005)). However, defendant argues that the Supreme Court's recent decision in University of Texas Southwestern Medical Center v. Nassar, ___ U.S. ___, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013), abrogates Lewis and raised the bar for proving causation in FMLA retaliation claims. In Nassar, the Court held that to prevail on a Title VII claim of retaliation, a plaintiff must meet the "traditional principles of but-for causation," and that showing the protected activity was merely a "motivating factor" in a retaliatory action was insufficient. Id. at 2533. In defendant's view, because the framework for FMLA retaliation claims derives from the Title VII context in the first place, see Buie, 366 F.3d at 503, the new rule of Nassar applies equally to FMLA retaliation claims.
Authority on this question is scarce. At least two districts in this circuit have continued to apply the rule of Lewis even post-Nassar. See, e.g., Kennedy v. U.S. Postal Serv., No. 2:10-CV-0279-PPS-PRC, 2014 WL 1047820, at *9 (N.D.Ind. Mar. 17, 2014); Perry v. Bath & Body Works, LLC, 993 F.Supp.2d 883, 899-900 (N.D.Ind.2014); Williams-Grant v. Wis. Bell, Inc., No. 11-C-1051, 2013 WL 5447952, at *9 (E.D.Wis. Sep. 30, 2013); see also Keiju Pu v. Columbia Coll. Chi., 934 F.Supp.2d 964, 975 (N.D.Ill.2013) (applying rule of Lewis despite Supreme Court decision in Gross v. FBL Financial Services, Incorporated, 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009), which held that but-for causation was applicable in the ADEA and ADA contexts). None of those courts cites Nassar, however, giving them limited persuasive value.
A few courts have considered Nassar's impact in the FMLA context, but those decisions yield no consensus, with most courts — including the Court of Appeals for the Seventh Circuit — declining to resolve the question definitively. See Malin v. Hospira, Inc., 762 F.3d 552, 562 n. 3 (7th Cir.2014); Ion v. Chevron USA, Inc., 731 F.3d 379, 390 (5th Cir.2013) ("We emphasize that we need not, and do not, decide whether Nassar's analytical approach applies to FMLA-retaliation claims and, if so, whether it requires a plaintiff to prove but-for causation."); Smith v. Bellsouth Telecommunications, Inc., No. 3:12-cv-581-MW/CJK, 2014 WL 505100, at *2 n. 5 (N.D.Fla. Feb. 6, 2014) ("Accordingly, this Court need not determine whether Gross and Nassar impact the analysis of FMLA retaliation claims."); Chase v. U.S. Postal Serv., Civil Action No. 12-11182-DPW, 2013 WL 5948373, at *9-12 (D.Mass. Nov. 4, 2013) ("[I]rrespective of which standard is to be applied, Mr. Chase has adduced sufficient evidence to survive summary judgment on his [FMLA] retaliation claim.").
Even the courts that do resolve the question do not agree. Compare Chaney v. Eberspaecher N. Am., 955 F.Supp.2d 811, 813 n. 1 (E.D.Mich.2013) (stating that Nassar, "while informative, did not change any applicable standards" in the FMLA retaliation context), with Housel v. Rochester Institute of Tech., 6 F.Supp.3d 294, 303-04 (W.D.N.Y.2014) (applying Nassar
Given the dearth of clear authority and the parties' lack of thorough briefing, the court declines to resolve the question here as well, finding that Nigh can survive summary judgment — if barely — even under the more demanding standard of but-for causation.
For example, during Nigh's first leave, the Board took away her keys and cut off her e-mail access. Although the Board contends its motivations were innocent (and they might well have been), a reasonable factfinder could infer otherwise, given that: (1) Nigh made clear she found the decision hurtful; and (2) there was no policy governing building and email access during leave. Additionally, the Board began to monitor Nigh's e-mails, zeroing in on a "suspicious" spam e-mail and suggesting they did not believe Nigh was legitimately on FMLA leave. The day after Nigh returned from her first leave, she received a reprimand for fourteen separate infractions, at least some of which were known to the Board months in advance, from which one may infer suspicious timing. While Nigh does not argue the reprimand itself was a materially adverse employment action, the Board later cited the contents of that reprimand as one of the reasons underlying its decision to initiate the nonrenewal process. (See Peter Reinhardt Aff. Dep. Ex. 51 (dkt. #45) 1.)
Likewise, during Nigh's second period of FMLA leave, she noticed that members of the Board were ignoring her at basketball games, and Ehrhardt indicated he could not talk to her because there were "eyes watching." Defendant again argues that the Board's behavior was not motivated by discriminatory animus, pointing to Lazorik's after-the-fact explanation that she understood no one should communicate with Nigh during her leave. A reasonable jury could find this justification mere pretext given that (1) Lazorik has offered no basis for that belief; (2) it is inconsistent with the Board's behavior during Nigh's first leave, when Sederholm contacted Nigh; and (3) the record contains no contemporaneous evidence of that belief. Furthermore, Lazorik made statements that indicated she did not believe Nigh was actually ill and was instead "faking" her illness, which at least suggests she may have viewed Nigh with hostility for taking leave.
Moreover, Cox was hostile to Nigh as she tried to plan her transition back from
Viewing all these facts in the light most favorable to Nigh, the court concludes that a reasonable jury could certainly find that her leave was a "motivating factor" in the Board's decision to non-renew her contract. While a closer question, the court concludes she might also convince a reasonable jury that her leave was a but-for cause of the non-renewal. As the Board points out, there is certainly significant evidence of performance deficiencies in the record as well, and those deficiencies cannot be ignored, especially since Nigh concedes that she was struggling to complete certain aspects of her position. But "[a] single event can have multiple but-for causes," Malin, 762 F.3d at 562 n. 3, and given the evidence Nigh has adduced to support her retaliation claim, a reasonable jury might find that the Board would not have non-renewed Nigh's contract but for her FMLA leave — even if, in the end, her performance deficiencies played just as great a role in the Board's decision.
Perhaps, had Nigh not taken leave, she would still have been non-renewed at the end of her contract term. The District is free to argue as much at trial, and it has ample evidence to support its argument. But it is also possible that Nigh's struggles in her District Administrator capacity would not alone have been enough to persuade the Board to terminate her employment, particularly since she continued to receive reasonably positive remarks on her performance as a principal and complied with most of the expectations given to her in her second performance evaluation. Indeed, the Board was careful to leave open the possibility of her improving and being renewed until after she took FMLA leave, at which point the door was, at least arguably, precipitously closed. In any event, Nigh has produced enough evidence to allow her to so argue. As a result, `defendant's motion for summary judgment on the retaliation claim will also be denied.'
IT IS ORDERED that:
