Horwitz, Karen v. Bd Educ Avoca School ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-4271
Karen Horwitz,
Plaintiff-Appellant,
v.
Board of Education of Avoca School District
No. 37, John W. Sloan, Venette Biancalana,
and Dorothy Ballantyne,
Defendants-Appellees.
Appeal from the United States District Court
for the Northen District of Illinois, Eastern Division.
No. 98 C 6490--George W. Lindberg, Judge.
Argued June 8, 2001--Decided July 26, 2001
Before Flaum, Chief Judge, and Bauer and
Kanne, Circuit Judges.
Flaum, Chief Judge. Karen Horwitz began
teaching full time at Avoca West
Elementary School when the 1993 to 1994
school year began and continued to do so
until she was terminated in April of
1999. Horwitz has raised numerous claims
against the Board of Education of Avoca
School District No. 37 (the "Board"), Dr.
John W. Sloan, Dr. Venette Biancalana,
and Dorothy Ballantyne. She is appealing
a variety of decisions made by the
district court that resulted in her case
not culminating in a trial. For the
reasons stated herein, we affirm.
I. Background
The Board hired Horwitz for the 1993 to
1994 school year, when she was 48 years
old, to teach the fourth grade.
Ballantyne at all times relevant to this
case was president of the Board.
Horwitz’s relationship with the school
principal--Dr. Biancalana--and district
superintendent--Dr. Sloan--was apparently
good throughout her first year at Avoca
West. During Horwitz’s second year, 1994
to 1995, the parents of at least three
children in Horwitz’s class complained
about her. One parent in particular, Mrs.
D., expressed strong dissatisfaction with
Horwitz’s treatment of her child and
subsequently Mrs. D. and Horwitz
apparently engaged in a heated
conversation over the matter.
Nevertheless, Dr. Biancalana and Dr.
Sloan recommended in April of 1995 that
Horwitz receive tenure. The Board shortly
thereafter voted to grant Horwitz, who at
the time was 50 years old, tenure. Dr.
Biancalana scheduled a meeting with
Horwitz on June 7, 1995 to address some
of the problems that occurred during the
1994 to 1995 school year, including the
incident between Horwitz and Mrs. D; Hor
witz abruptly left in the middle of the
meeting. The next day, Dr. Biancalana
sent Horwitz a letter informing her that
her "behavior was an exhibition of gross
insubordination" and that gross
insubordination can serve as a ground for
dismissal. Dr. Biancalana followed up her
letter with a memo outlining the various
performance problems that she had hoped
to discuss during their June 7 meeting.
Horwitz subsequently wrote Dr. Biancalana
a rebuttal letter explaining that her
heart condition contributed to her
leaving the meeting suddenly, but she did
state, "I admit your allegations that I
became highly distressed during the
meeting and that I would no longer listen
to what you had to say. The reason for my
distress was that you were assuming the
truth of statements made by other staff
members about my behavior while I was
speaking on the telephone with [a
parent]." More than a year later, in-mid-
November of 1996, Horwitz had a meeting
with Dr. Sloan, wherein they discussed
concerns relating to an election project
and Horwitz also recounted incidents
where she believed teachers were being
discriminated against based on their age.
Horwitz alleges that in response to her
complaints, Dr. Sloan told her that he
would make miserable the life of any
person who escalated any issue and that
he was good at escalating an issue. The
defendants dispute that Dr. Sloan ever
made such a comment. On June 16, 1997,
Horwitz filed her first charge of age
discrimination with the Equal Employment
Opportunity Commission ("EEOC").
The 1997 to 1998 school year was no less
contentious. Horwitz was reassigned, over
her objection, from teaching fourth grade
to teaching fifth grade that year. In
October of 1997, while the School Board
campaign season was taking place, Horwitz
submitted an essay criticizing the school
district and its administrators to
Wilmette Life. Although the essay was not
published in print, it was posted on the
internet. Horwitz’s essay discussed how
school administrators condoned
inappropriate actions and encouraged age
discrimination. More specifically, she
noted that Dr. Sloan "warned" her that he
would make miserable the life of anyone
who escalated any issues in the district.
In January of 1998, Horwitz requested
that the Avoca School Board investigate
the allegations of wrongdoing that she
had asserted in her essay. The Board
instead directed Horwitz to engage in
mediation with Dr. Sloan and Dr.
Biancalana. Horwitz, in a March 9th
written response, expressed her
unwillingness to partake in mediation.
Rather, she demanded the Board pursue an
investigation into her complaints
concerning the school district, as she
believed such an exercise would lead to
an admission of wrongdoing on the Board’s
part and an apology to her. Horwitz
stated in her letter to the Board, "Your
administrators have psychologically raped
me and discriminated against me for over
three years and I will not accept
anything less than an admission of their
harassment along with an apology." The
Board did not initiate an investigation
as Horwitz demanded, but rather issued
its first notice of remedial warning on
April 20, 1998 concerning Horwitz’s
conduct. The notice detailed four areas
in which Horwitz needed to improve to
avoid dismissal, which included: (1)
following the Board’s directive to
participate in mediation with Dr.
Biancalana and Dr. Sloan; (2) cease
making false allegations concerning the
conduct and actions of Dr. Biancalana,
Dr. Sloan, and other school district
personnel; (3) behave professionally when
dealing with Dr. Biancalana and follow
her directives; and (4) work
cooperatively with other faculty members,
educational support personnel, and
outside support staff; cease to engage in
"conduct and actions which falsely cast
aspersions on the knowledge and abilities
of other faculty and staff members;" and
raise legitimate concerns in an
"appropriate and professional manner."
After receiving the notice of remedial
warning, Horwitz did comply with the
Board’s directive to participate in
mediation with Dr. Biancalana and Dr.
Sloan.
The end of the 1998 school year
brought about another confrontation
between Horwitz and the school district.
Horwitz did not report to school on April
16, 1998 and her husband in a letter
dated the same day informed Dr.
Biancalana that she was ill and a doctor
advised that she not return to work for a
period of time. Her doctors recommended,
Mr. Horwitz wrote, that "she remove
herself from her extremely hostile work
environment which may have a negative
impact on her medical condition." He also
informed Dr. Biancalana that until
Horwitz felt better, she was to have "no
contact with any members of the AVOCA
School District Staff" and that "lesson
plans will have to be completed for her
class" during her absence. In late April,
Horwitz desired to return to teaching.
The school learned through information
provided by Horwitz’s treating doctor
that she had kidney and heart problems
and the doctor believed that the
extremely hostile working environment at
Avoca West was negatively affecting
Horwitz’s medical condition. Dr. Sloan
requested that Horwitz undergo both a
physical and psychological exam prior to
returning to her teaching position.
Horwitz underwent the physical exam and
returned to work in May of 1998, as it
was agreed that she could complete the
psychiatric examination before the next
school year began. On June 23, 1998,
Horwitz filed a second charge with the
EEOC alleging that she had experienced
retaliation for filing her initial EEOC
charge.
The summer of 1998 was not without some
additional tension between Horwitz and
the school district. Dr. Biancalana
during the summer asked Horwitz to return
an audio tape of a conversation between
Horwitz, Dr. Biancalana, and the parents
of a student. She claimed that the tape
needed to be returned because it
constituted a confidential student record
and that the school district was
responsible for maintaining the custody
and confidentiality of all copies of the
record. By the middle of the summer, July
of 1998, Horwitz had not provided the
audio tape to the school and had failed
to undergo a psychological exam. As a
consequence, the Board issued on July 15,
1998, a second notice of remedial warning
instructing Horwitz to return all of the
audio tapes, as she had returned only one
copy of the tape recording, and to
undergo the psychological examination
that the school district requested.
Eventually, Horwitz did undergo the
psychological evaluation.
The 1998 to 1999 school year was when
the Board dismissed Horwitz. The EEOC
sent Horwitz a notice of right to sue,
dated September 2, 1998, based on the two
charges she filed with them. Horwitz
pursued her right to sue by filing a
complaint against the Board and various
other individuals in the Northern
District of Illinois on October 16, 1998.
Notwithstanding these events, a third
notice of remedial warning was issued by
the Board on January 5, 1999, relaying to
Horwitz that she needed to remedy certain
conduct deficiencies. The notice
discussed nine particular issues, ranging
from Horwitz’s failure to work
cooperatively with other faculty and
staff to her unwillingness to follow
directives put forward by principal Dr.
Biancalana. The Board expressed in its
notice that it was unhappy with Horwitz’s
"unprofessional, insubordinate and
unsatisfactory conduct," a sentiment the
Board had previously articulated in the
first and second notices of remedial
warning. Horwitz did not report to school
on March 16, 1999 and informed Dr.
Biancalana in a March 19th letter that
she would not be able to teach through at
least April 16th due to a medical
condition and that a substitute would
have to prepare lesson plans after March
22nd. On March 23rd, Dr. Sloan wrote
Horwitz a letter requesting that she
provide him with certification from her
doctor explaining the reason for her
absence. At this point in time, Horwitz
had accumulated twenty-eight days of sick
leave. Dr. Sloan on March 26th and April
6th again asked Horwitz for a doctor’s
certification. Finally, on April 14th,
Horwitz sent Dr. Sloan a letter from her
treating physician, Dr. Ciganek. Dr.
Sloan, however, wrote another letter to
Horwitz explaining that the note from Dr.
Ciganek was not sufficient, as it did not
adequately explain the medical reason for
her absence. Dr. Ciganek did provide the
school district with more specific
information concerning Horwitz’s
condition in a letter dated April 22nd.
According to Horwitz, an episode of
depression caused her to be absent from
school. In late April, Dr. Sloan
recommended to the Board that Horwitz be
dismissed for her continuing
unprofessional and insubordinate
behavior. On April 23rd, the Board
reviewed Dr. Sloan’s recommendation and
voted to terminate Horwitz.
At the summary judgment stage, the
district court ruled in favor of the
defendants on the following claims: (1)
Age Discrimination in Employment Act
("ADEA"); (2) retaliation in violation of
the ADEA; (3) Family Medical Leave Act
("FMLA"); and (4) defamation./1 Prior
to the summary judgment ruling, the
district court dismissed Horwitz’s 42
U.S.C. sec. 1983 claim. Horwitz now
appeals asking us to reconsider the
district court’s summary judgment and
motion to dismiss decisions.
II. Discussion
A. ADEA
We review the district court’s grant of
summary judgment de novo, construing all
of the facts and reasonable inferences
that can be drawn from those facts in
favor of the nonmoving party. See Central
States, Southeast & Southwest Areas
Pension Fund v. Fulkerson, 238 F.3d 891,
894 (7th Cir. 2001). A grant of summary
judgment is appropriate if the pleadings,
depositions, answers to interrogatories,
admissions, and affidavits leave no
genuine issue of material fact, and the
moving party is entitled to a judgment as
a matter of law. Fed.R.Civ.P. 56(c).
The ADEA prohibits an employer from
discriminating against an individual on
the basis of his or her age. 29 U.S.C.
sec. 623(a). An employee must be at least
40 years of age to pursue an age
discrimination claim. 29 U.S.C. sec.
631(a). "To succeed on a discrimination
claim under the ADEA, a plaintiff must
show that her termination or other
adverse employment action would not have
occurred ’but for’ her employer’s motive
to discriminate on the basis of her age."
Fuka v. Thomson Consumer Elecs., 82 F.3d
1397, 1402 (7th Cir. 1996). Although age
discrimination can be proved through
either the direct method or the indirect
burden-shifting method of proof outlined
in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), Horwitz chose to proceed
under the latter method. See Fuka, 82
F.3d at 1402. McDonnell Douglas sets
forth a three-step inquiry. The first
step entails establishing by a
preponderance of the evidence a prima
facie case of discrimination. See Adreani
v. First Colonial Bankshares Corp., 154
F.3d 389, 394 (7th Cir. 1998). To build a
successful prima facie case, Horwitz must
show that: (1) she falls within the
protected age group-- that is, she is at
least 40 years old; (2) she performed her
job satisfactorily; (3) despite her
satisfactory performance, she suffered a
materially adverse employment action; and
(4) younger employees situated similarly
to the plaintiff were treated more
favorably. See id.; see also Fisher v.
Wayne Dalton Corp., 139 F.3d 1137, 1141
(7th Cir. 1998). "The Supreme Court has
clarified that an ADEA plaintiff who
shows that he was replaced by someone
substantially younger need not prove that
the replacement is outside the protected
class." Adreani, 154 F.3d at 394
(internal citations and quotation marks
omitted). If Horwitz had made out a prima
facie case, a presumption of
discrimination would arise, and the
burden would shift to the Board/2 to
articulate a non-discriminatory reason
for its materially adverse employment
action. Id. Horwitz would still have the
opportunity to prove by the preponderance
of the evidence that the legitimate
reasons offered by the Board were not its
true reasons, but were pretext for
discrimination. Id.
There is no dispute about whether
Horwitz falls within the protected age
group, as the Board hired her when she
was 48 years old to teach the fourth
grade for the 1993 to 1994 school year.
The district court found that Horwitz
failed to establish a prima facie case of
age discrimination because she had not
demonstrated that younger teachers were
treated more favorably than she. We
concur with the district court’s
assessment. Horwitz alleges that she was
excluded from the election, newspaper,
and mentoring projects, even though
younger teachers participated in such
activities. Further, she asserts that her
transfer from teaching fourth grade to
teaching fifth grade, over her objection,
shows that the school favored younger
teachers. Horwitz claims that Dr.
Biancalana’s decision in the fall of 1996
to give the chairmanship of the Language
Arts Committee to a younger teacher is
yet another example of how she was
treated in an unfavorable manner because
of her age. Horwitz contends that this is
especially true since she has a masters
degree and was the only certified reading
specialist on staff, whereas the
individual chosen for the chair position
did not have a masters degree. According
to Horwitz, there were other incidents of
age discrimination as well. For instance,
Horwitz claims that in August of 1996,
Dr. Biancalana hired a new part-time
kindergarten teacher who was over 40
years of age, and told her that this was
something that she did not usually do.
Also during the same period, Horwitz
alleges that Dr. Biancalana told one of
the younger teachers that she hoped that
the teacher did not mind working with an
older person. Horwitz asserts that two
other older teachers, Peter Lanners, who
was born on November 12, 1948, and
Barbara Entin, who was born on October
14, 1951, believed that Dr. Biancalana
discriminated against them based on their
age. Finally, Horwitz reiterates that
when she met with Dr. Sloan in mid-Novem
ber of 1996 to express her distress with
the age discrimination occurring against
older teachers at the school, he warned
her that he would make life miserable for
any teacher who escalated any issue. All
of these incidents taken together,
Horwitz advances, show that younger
teachers were treated more favorably than
older teachers at Avoca West Elementary
School.
There is no concrete evidence in the
record substantiating Horwitz’s
allegations that younger teachers were
treated more favorably than older
teachers. By way of example, the school
has provided data showing that between
the 1992 to 2000 school years, over 55%
of the teaching staff within the Avoca
School District were over the age of 40.
Dr. Biancalana who began serving as
principal of Avoca West in August of
1993, has hired six teachers as well as a
school nurse and Library Technology
Coordinator over the age of 40. In fact,
Dr. Biancalana since arriving at Avoca
West, has selected twelve mentors, of
whom seven were 40 years of age and
older. Her reviews of the eleven teachers
over 40 years of age at Avoca West are
fairly comparable to her predecessor, in
that she gave nine of the teachers the
same rating, one a lower evaluation, and
one a higher evaluation. Both Lanners and
Entin did not express affirmatively that
they were experiencing age
discrimination. More specifically, when
Lanners was asked during his deposition,
"Did you feel that you were being picked
on because of your age?," he responded,
"I have no idea. I really don’t,"
andlater said, "Maybe I was rubbing
somebody the wrong way." Entin submitted
an affidavit in which she said, "As to
the allegations of Count I dealing with
age discrimination, again, I have no
personal knowledge of such allegations
and personally believe that I have not
been subjected to any age-based conduct
or discrimination as a consequence of the
activities of the Defendants." From an
objective viewpoint, there is evidence
showing that Avoca West hired teachers
who were 40 years of age and older, had
a staff of teachers that was made up of
more than 55% within the protected age
category, and afforded such teachers
mentoring opportunities. One could even
argue that Horwitz’s own case, as she was
hired at the age of 48 and tenured at age
50, is an example of the school
district’s willingness to hire older
teachers and tenure them. Consequently,
the district court’s decision to grant
summary judgment in favor of the Board on
Horwitz’s ADEA claim was proper./3
B. Retaliation based on the ADEA
The district court granted summary
judgment in favor of the Board concerning
Horwitz’s retaliation claim under the
ADEA. Keeping in mind the standard we
have outlined regarding our review of a
district court’s summary judgment
decision, we address whether Horwitz has
presented a retaliation case that merits
a jury trial. The ADEA provides that it
is "unlawful for an employer to
discriminate against any of his employees
. . . because such individual . . . has
opposed any practice made unlawful by
this section, or because such individual
. . . has made a charge, testified,
assisted, or participated in any manner
in an investigation, proceeding, or
litigation under this chapter." 29 U.S.C.
sec. 623(d). Horwitz has pursued her
retaliation case based on the ADEA under
the McDonnell Douglas burden-shifting
framework, as is permitted. See Sauzek v.
Exxon Coal USA, Inc., 202 F.3d 913, 918
(7th Cir. 2000). In order to establish a
prima facie case of retaliatory discharge
in violation of the ADEA, Horwitz must
show: (1) she engaged in statutorily
protected activity; (2) she suffered an
adverse employment action; and (3) there
is a causal connection between the
protected activity and the adverse
action. See id.; Vanasco v. National-
Louis Univ., 137 F.3d 962, 968 (7th Cir.
1998). Before proceeding to the last two
steps of the McDonnell Douglas analysis,
we explore whether Horwitz has made out a
prima facie case of retaliation. Although
Horwitz’s underlying discrimination claim
based on the ADEA has failed, she still
may pursue a claim that she was
retaliated against for complaining about
age discrimination. See Place v. Abbott
Labs., 215 F.3d 803, 806 (7th Cir. 2000).
There is no question as to whether
Horwitz engaged in an activity protected
under the ADEA. She filed her first
charge of age discrimination with the
EEOC on June 16, 1997 and then a second
charge with the EEOC on June 23, 1998
alleging that she had experienced
retaliation for filing her initial EEOC
charge. In response to both of these
charges, the EEOC sent Horwitz a notice
of right to sue, dated September 2, 1998.
Horwitz pursued her right to sue by
filing a complaint against the Board and
various other administrators in the
Northern District of Illinois on October
16, 1998. Clearly, Horwitz engaged in
protected activity under the ADEA when
she filed the two EEOC complaints and the
instant lawsuit. See McClendon v. Indiana
Sugars, Inc., 108 F.3d 789, 796 (7th Cir.
1997). Likewise, it is apparent Horwitz
suffered an adverse employment action
when she was terminated on April 23, 1999
by the Board. See id.; Gleason v. Mesirow
Fin., Inc., 118 F.3d 1134, 1146 (7th Cir.
1997). The district court, however, said
that the "Plaintiff fails to present
evidence such that a reasonable jury
could find that a causal connection
exists between her protected activity and
her dismissal." To establish the last
element in a retaliation case,--that is,
the causal connection requirement--
Horwitz needed to prove that the Board’s
decision to terminate her and the EEOC
charges and current lawsuit were not
wholly unrelated. Vanasco, 137 F.3d at
969. As an initial matter, it is
difficult to infer causation based solely
upon the timing of her termination and
the filing of this lawsuit. That is to
say, we have said that for there to exist
a telling temporal sequence, the
employer’s adverse action should follow
"fairly soon after the employee’s
protected expression." Davidson v.
Midelfort Clinic, Ltd., 133 F.3d 499, 511
(7th Cir. 1998). More than six months
elapsed between the time Horwitz filed
this lawsuit (October 16, 1998) and the
Board terminating her (April 23, 1999).
Such a gap in time between her lawsuit
and her termination cannot establish a
causal connection. See Paluck v. Gooding
Rubber Co., 221 F.3d 1003, 1010 (7th Cir.
2000) (collecting cases); Davidson, 133
F.3d at 511 (collecting cases).
Nonetheless, Horwitz is not precluded
from coming forward with other evidence
supporting the casual connection element.
Id. Horwitz attempts to argue that there
is a causal connection between her
protected activity and termination by
reciting many of the facts that we have
already discussed in the background and
ADEA sections of this case. For instance,
Horwitz argues that she met with Dr.
Sloan in mid-November of 1996 to address
her concerns about age discrimination at
Avoca West and he responded by remarking
that he would make a staff member’s life
miserable if he or she escalates an
issue. She claims that shortly thereafter
she was moved from teaching fourth grade
to teaching fifth grade over her
objection. In June of 1997, she filed her
first EEOC charge and three months later
she was criticized for being allegedly
uncooperative and told to list
cooperation as a goal for the next school
year. Her essay was posted on the
internet in the fall of 1997, and after
this, she requested that the Board
investigate her claims of age
discrimination. The Board refused to
investigate her concerns and instead
issued its first notice of remedial warn
ing. Horwitz advances that she took a
medical leave in April of 1998 and that
she was improperly asked to see the Board
physician, an internist, before she could
return to work and later the Board said
she had to see a psychiatrist. In June of
1998, she filed her second EEOC charge
and then the Board issued another notice
of remedial warning concerning her
behavior in July of 1998. The Board when
it terminated Horwitz relied, she
alleges, specifically on 105 ILCS 5/10-
22.4, which states that any teacher who
does not complete a one-year remediation
plan with a satisfactory or better rating
can be dismissed. Horwitz claims that the
Board must have concluded that her
deficiencies were correctable, and thus
since a one-year remediation plan was
mandatory, she urges that we consider the
causation issue in light of this time
frame. Finally, Horwitz asserts that she
should not be prejudiced by the fact that
the Board was told to methodically
prepare a file against her, which does
take time. Horwitz attempts to show that
the timing between the various protected
activities (the two EEOC charges and the
filing of this lawsuit) that she engaged
in and events that occurred immediately
thereafter, which she apparently
perceives as adverse employment actions,
reveals the existence of a causal
connection. Horwitz is unable to label
certain events as adverse employment
actions and tie them to her protected
activities in light of the fact that we
have found that her termination is the
only adverse employment action that she
has suffered. Therefore, all of the
evidence that Horwitz has provided with
relation to the causal connection issue
is merely speculative. Thus, Horwitz
cannot establish the causal connection
element of her prima facie case.
In any event, even if Horwitz were able
to present evidence sufficient to
establish a prima facie case of
retaliatory discharge, she has not
successfully shown that the Board’s
proffered reasons for terminating her
were pretextual. The district court found
that the Board had produced evidence of
non-discriminatory reasons for Horwitz’s
termination and that the Board had
pointed to "several occasions of insubor
dination, complaints from parents,
occasions of unprofessional behavior on
the part [of the] Plaintiff towards her
fellow faculty members, administrators
and outside support staff. Defendants
further produce evidence that [the]
Plaintiff failed to adequately prepare
lesson plans for use during her extended
absences and that Plaintiff was not
available for consultation during those
absences." The Notice of Charges and Bill
of Particulars detail Horwitz’s
shortcomings as a teacher--both cite
thirty-one reasons for her termination.
Horwitz asserts that the reasons given
for her termination in the Notice of
Charges and Bill of Particulars differ
from the reasons Dr. Sloan gave for her
termination at Horwitz’s unemployment
compensation hearing. Horwitz notes that
the hearing officer asked Dr. Sloan, "In
the final analysis, was she discharged
because of this extended absence or
because during this absence . . . she
failed to comply with policy regarding
lesson plans? Or was it a combination
thereof?," to which Dr. Sloan replied, "A
combination thereof." Furthermore,
according to Horwitz, Dr. Sloan had-hand-
delivered to her a letter saying the
primary reason for her dismissal was her
absence without sufficient medical
documentation beginning on March 16, 1999
and her failure to supply lesson plans
during this period. Horwitz also alleges
in her brief that the "Defendants’
written evaluations of Plaintiff’s
performance through March, 1997 showered
her with praise and described her as an
’excellent’ employee." Finally, Horwitz
claims that during a hearing before the
Illinois State Board of Education
concerning her dismissal, Dr. Sloan said,
"we needed to build a case" against
Horwitz, rather than stating that the
school desired to document what was
occurring at the time between Horwitz and
the school. All of this, Horwitz asserts,
supports a finding of pretext.
Upon reviewing the record, we cannot
conclude that the school district’s
legitimate, non-discriminatory reasons
for terminating Horwitz are pretextual.
For example, Dr. Sloan initially
requested and was allowed to read a
prepared statement at the unemployment
compensation hearing, in which he
summarized how Horwitz over a three-year-
period "exhibited a pattern of gross
insubordination and unprofessional
conduct." He then noted that she had
refused to follow school district
procedures and policies after being
repeatedly directed to do so in three
written notices to remedy issued by the
Board. "The culminating event," Dr. Sloan
said, "that led to her discharge was . .
. generated by the fact that on March
16th, 1999, Mrs. Horwitz began an
extended absence that would last through
April 23rd, 1999, when she was
terminated." At this point, the hearing
officer interrupted Dr. Sloan and the
dialogue recited above, wherein the
hearing officer posed a question about
Horwitz’s absence and lesson plans, took
place. Dr. Sloan, however, made it clear
initially that there was no sole reason
for the termination of Horwitz and he
never retreated from such a position. Dr.
Sloan, in a letter dated April 21, 1999
that he sent to Horwitz, said:
Your repeated refusal to respond to the
District’s requests for verification of
the basis for your extended absence from
your full-time teaching duties and your
unprofessional conduct in failing to
communicate with the District’s Principal
regarding lesson plans for substitutes
has adversely affected the District’s
students and has disrupted necessary
planning for students’ educational
programs. Based upon this continued
insubordinate conduct and your
established pattern of unprofessional and
insubordinate conduct as evidenced by
issuance of Three (3) Board Notices of
Remedial Warning, I will submit an
administrative recommendation to the
Board of Education for your termination
as a tenured teacher.
There is no doubt that Dr. Sloan quite
clearly communicated to Horwitz that her
previous three notices of remedial
warning along with her recent absence and
failure to provide lesson plans for that
period caused him to recommend her
termination to the Board. As for the
comment that Dr. Sloan made during the
hearing before the Illinois State Board
of Education regarding establishing a
case against Horwitz, it is necessary
that we place Dr. Sloan’s comment within
the proper context. The hearing officer
had inquired why it took Dr. Sloan so
long to recommend to the Board that
Horwitz be terminated. Dr. Sloan
responded that the school tried to help
Horwitz and ensure that she would
succeed, but there came a point where it
became apparent she was not going to be
successful, therefore Dr. Sloan remarked,
"[A]t that juncture, as the law requires,
we needed to build a case and document
the harm that she was doing to the school
district, and I believe that we did that,
and unfortunately it was a process, and
the law calls for a process that when
you’re firing a person for incompetence
and unprofessional behavior, you have to
have a wealth of proof and substantiated
documentation to prove that that’s what
is occurring." Dr. Sloan was simply
attempting to account for why it took the
school as long as it did to terminate
Horwitz. We cannot read into Dr. Sloan’s
comment any motive on the school’s part
to fabricate, or put another way, build a
false case against Horwitz. He merely was
explaining the practical realities
involved in removing an employee from the
workplace. While it may be true that Dr.
Biancalana rated Horwitz as an
"excellent" teacher for the 1993 to 1994,
1994 to 1995, and 1996 to 1997 school
years, she also stated in her 1996 to
1997 report that she "would like to see
more emphasis on these areas at the
fourth grade level." The areas Dr.
Biancalana was referring to included
maintaining positive professional
interactions with others and establishing
relationships with colleagues which
reflect mutual respect. Dr. Biancalana
had expressed some unease with Horwitz’s
professional relationships in her 1997
school year evaluation of Horwitz. Prior
to this time, as discussed above, Horwitz
had acted in a grossly insubordinate man
ner when in June of 1995 she abruptly
left a meeting with Dr. Biancalana. As we
have already recounted, the Board issued
its first notice of remedial warning on
April 20, 1998, and two more notices
followed thereafter. Horwitz was
experiencing difficulties in her
interactions with faculty and other
individuals at the school. Her positive
teacher evaluations in no way detract
from such problems. It is quite apparent
that Horwitz has not proven that the
reasons the Board has given for
terminating her are in any way
pretextual. Horwitz’s subjective belief
that the Board’s actions were retaliatory
and that the Board’s claimed reasons for
terminating her are pretextual in nature
does not create a genuine issue of
material fact. See Johnson v. University
of Wisconsin-Eau Claire, 70 F.3d 469,
479-80 (7th Cir. 1995). Thus, the
district court properly entered summary
judgment in favor of the Board on
Horwitz’s retaliatory discharge claim
based on the ADEA.
C. Retaliation Based on the FMLA
The district court granted summary
judgment in favor of the defendants with
regard to Horwitz’s FMLA claim. While the
FMLA provides certain substantive
guarantees, "the FMLA also affords
employees protection in the event they
are discriminated against for exercising
their rights under the Act." King v.
Preferred Technical Group, 166 F.3d 887,
891 (7th Cir. 1999). In a case where an
employee is alleging discrimination based
on the FMLA, "[t]he issue becomes whether
the employer’s actions were motivated by
an impermissible retaliatory or
discriminatory animus." Id. Horwitz
asserts that the Board, Dr. Sloan, Dr.
Biancalana, and Ballantyne violated the
FMLA when they terminated her employment
because she took leave to which she was
entitled to under the FMLA. Because
Horwitz alleges retaliatory discharge
under the FMLA, she must establish that
the parties involved engaged in
intentional discrimination. Id. at 892.
Since Horwitz has not provided us with
any direct evidence of discrimination, we
will apply the McDonnell Douglas burden-
shifting framework to her claim that the
Board, Dr. Sloan, Dr. Biancalana, and
Ballantyne discriminated against her
because she exercised her rights
guaranteed by the FMLA. Id. To prove a
prima facie case of retaliatory discharge
under the FMLA, Horwitz must show that:
(1) she engaged in a protected activity;
(2) the Board, Dr. Sloan, Dr. Biancalana,
and Ballantyne took an adverse employment
action against her; and (3) there is a
causal connection between her protected
activity and the defendants’ adverse
employment action. Id.
The district court found that Horwitz
had not provided the school with the
requisite notice to trigger a FMLA claim.
According to the district court, "the
undisputed record reflects that [the]
Plaintiff did not provide information
such that her employers would reasonably
have been on notice as to the severity of
her condition, until after [Dr.] Sloan
had recommended her dismissal, and nearly
a month after her initial absence."
Indeed, Horwitz was absent from school
beginning on March 16, 1999, and after
repeated requests from Dr. Sloan to
provide him with medical certification
regarding her absence, her doctor sent an
apparently inadequate certification on
April 14th. Dr. Sloan then asked for more
detailed information from Horwitz’s
doctor. Horwitz’s doctor did send a more
specific letter, dated April 22nd, to the
school concerning Horwitz’s condition.
However, Dr. Sloan in a letter dated
April 21st (a day before the doctor’s
note was written) had already told
Horwitz that he was recommending to the
Board that she be terminated. We have
stated that an "employee can be
completely ignorant of the benefits
conferred by the Act: it is sufficient
notice if the employee provides the
employer with enough information to put
the employer on notice that FMLA-
qualifying leave is needed." Stoops v.
One Call Communications, Inc., 141 F.3d
309, 312 (7th Cir. 1998). There is
serious doubt as to whether Horwitz
provided the school with "enough
information" to put it on notice that she
needed a FMLA-qualifying leave.
Nonetheless, we do not need to resolve
this question because as we have
previously discussed, the school has
provided a legitimate, non-discriminatory
reason for terminating Horwitz, which has
not been determined to be pretextual.
Therefore, we affirm the district court’s
decision to enter summary judgment in
favor of the Board, Dr. Sloan, Dr.
Biancalana, and Ballantyne.
D. Defamation Claim
Initially, we begin by noting that the
district court appropriately decided to
resolve Horwitz’s state law defamation
claim (based on Illinois law), even
though the trial court had settled the
federal issues in her case. The district
court had jurisdiction to decide the
state claim under 28 U.S.C. sec. 1367(a)
because neither side has contended that
the defamation claim does not form part
of the same Article III case or
controversy as the other federal claims
(ADEA; retaliation based on the ADEA;
FMLA) over which the district court did
have original jurisdiction. See Timm v.
Mead Corp., 32 F.3d 273, 276 (7th Cir.
1994). The issue becomes whether the
district court should have decided not to
exercise its jurisdiction over the
defamation claim based upon sec. 1367(c),
which allows a district court not to
assume supplemental jurisdiction over a
claim when it has dismissed all claims
over which it had original jurisdiction.
Judges are permitted the discretion to
determine whether a state law claim
should not be dismissed because of other
considerations like judicial economy,
convenience, fairness, and comity. Id. at
276-77. In this instance, Horwitz’s claim
was ripe, Illinois law regarding
defamation well-settled and
straightforward, the litigation was over
two-years-old, and discovery had been
closed. We see no reason why the district
court should have declined its right to
assert jurisdiction over Horwitz’s state-
based defamation claim.
Having said that, we turn to the actual
defamation claim itself. The district
court, on immunity grounds, found that
Horwitz’s defamation claim did not
survive the defendants’ motion for
summary judgment. We agree with the
district court’s assertion that the Board
is statutorily immune from Horwitz’s
claim. Illinois law provides that a
"local public entity is not liable for
injury caused by any action of its
employees that is libelous or slanderous
or for the provision of information
either orally, in writing, by computer or
any other electronic transmission, or in
a book or other form of library
material." 745 ILCS 10/2-107. As a
consequence, the Board may not be sued
for the allegedly defamatory remarks it
made about Horwitz. See Meyers v. Board
of Educ. of the City of Chicago, 121
Ill.App.2d 186, 191, 257 N.E.2d 183, 185
(1970); see also Bobkoski v. Board of
Educ. of Cary Cmty. Consol. Sch. Dist.
No. 26, No. 90 C 5737, 1991 WL 10742, at
*5 (N.D. Ill. Jan. 31, 1991).
We turn to whether the remaining
defendants--Dr. Sloan, Dr. Biancalana,
and Ballantyne--are also immune from
suit. We have remarked with regard to
this issue that "even if a statement is
defamatory, under Illinois law, the
defendants would have immunity for their
statements made within the scope of their
authority." Klug v. Chicago Sch. Reform
Bd. of Trs., 197 F.3d 853, 861 (7th Cir.
1999) (citing Blair v. Walker, 64 Ill. 2d
1, 349 N.E.2d 385 (1976)). The question
we address is whether Dr. Sloan, Dr.
Biancalana, and Ballantyne were acting
within the scope of their official duties
when they made the alleged statements in
question. According to Horwitz, the
individual defendants made defamatory
remarks when they were discussing or
corresponding with parents about her
absence from school that began on March
16, 1999. It is evident that Dr. Sloan,
Dr. Biancalana, and Ballantyne were not
acting in their personal capacities, but
rather their official capacities when
they were attempting to respond to
parents’ concerns regarding Horwitz’s
absence. Likewise, they were acting
within the scope of their official duties
and authority when they corresponded or
spoke with various parents about
Horwitz’s absence. We accord such an
absolute privilege to particular
officials because as the Supreme Court of
Illinois in Blair, 64 Ill. 2d at 9, 349
N.E.2d at 388, explained, the United
States Supreme Court in Barr v. Matteo,
360 U.S. 564, 571 (1959) has said that
"[i]t has been thought important that
officials of government should be free to
exercise their duties unembarrassed by
the fear of damage suits in respect of
acts done in the course of those duties .
. . ." Absolute immunity cannot be
"overcome by a showing of improper
motivation or knowledge of the
statement’s falsity, including malice."
Klug, 197 F.3d at 861; see also Blair, 64
Ill. 2d at 5-6, 349 N.E.2d at 387. The
district court thus properly granted
summary judgment in favor of the
defendants with regard to Horwitz’s
defamation claim.
E. Dismissal of the Section 1983 Claim
The district court dismissed Horwitz’s
42 U.S.C. sec. 1983 claim. Horwitz
alleged in her complaint that the School
Board "acted with reckless indifference
to plaintiff’s concerns resulting in a
deprivation of her civil rights" and that
Dr. Sloan, Dr. Biancalana, and Ballantyne
were involved in a conspiracy to silence
her "advocacy for her students, discredit
and ultimately terminate her." The
conspiracy resulted in a violation of her
rights and duties as an advocate for
children pursuant to the Individuals with
Disabilities Education Act ("IDEA") and
the First Amendment. Essentially, Horwitz
has brought a First Amendment retaliation
claim under sec. 1983. We review a
district court’s decision to dismiss a
complaint under 12(b)(6) de novo. See
Pleva v. Norquist, 195 F.3d 905, 911 (7th
Cir. 1999). Such a dismissal is proper
only if looking at the pleadings, taking
all the facts alleged by Horwitz to be
true and construing all inferences in her
favor, she fails to state a claim upon
which relief can be granted. Id.
First, we assess whether the district
court properly dismissed the sec. 1983
claim against Dr. Sloan, Dr. Biancalana,
and Ballantyne. Horwitz has sued these
defendants in their official and
individual capacities. With respect to
the individual capacity issue, it is
necessary that we consider whether
Horwitz has successfully established a
First Amendment retaliation claim. In
order for Horwitz to establish a sec.
1983 claim based on the First Amendment,
she must demonstrate that: (1) her
conduct was constitutionally protected
and (2) her conduct was a substantial or
motivating factor in the defendants’
challenged actions. See Thomsen v.
Romeis, 198 F.3d 1022, 1027 (7th Cir.
2000). To determine whether Horwitz’s
speech was constitutionally protected, we
need to ask whether her speech addressed
a matter of public concern, and if so,
then we must consider whether Horwitz’s
interest in speaking outweighs the
interest of the state in efficiently
providing services. See Kokkinis v.
Ivkovich, 185 F.3d 840, 843-44 (7th Cir.
1999). To determine whether Horwitz’s
speech was a matter of public concern, we
consider the content, form, context, and
motivation of her speech, although
content is the most important factor. See
Button v. Kibby-Brown, 146 F.3d 526, 529
(7th Cir. 1998). We will assume, without
deciding, that the essay Horwitz
submitted to Wilmette Life in the fall of
1997 criticizing the school district
addresses a matter of public concern and
that her interest in speaking outweighs
the interest of the state in efficiently
providing services. Nonetheless, we
cannot conclude that Horwitz’s essay in
any way was a substantial or motivating
factor in the defendants’ ultimate
decision that Horwitz should be
terminated. The essay was submitted to
Wilmette Life on October 9, 1997 and
Horwitz was terminated on April 23, 1999;
approximately eighteen months had passed
between the time Horwitz had engaged in
speech that was constitutionally
protected and her termination. These two
events are simply too remote in time to
infer that Dr. Sloan, Dr. Biancalana, and
Ballantyne believed that Horwitz’s
termination was necessary based solely on
this essay. As already noted, several
other incidents occurred between Horwitz
and the school between the fall of 1997
and April of 1999 that played a role in
the decision to terminate her. Horwitz
has not successfully mounted a First
Amendment retaliation claim against Dr.
Sloan, Dr. Biancalana, and Ballantyne.
Although we have decided that Horwitz’s
sec. 1983 claim against Dr. Sloan, Dr.
Biancalana, and Ballantyne in their
individual capacities has failed, we
still must address whether her claim
survives against these defendants in
their official capacities. Since Horwitz
has brought her suit against these
particular individuals in their official
capacities, "the trial judge must
identify those officials or governmental
bodies who speak with final policymaking
authority for the local governmental
actor concerning the action alleged to
have caused the particular constitutional
or statutory violation at issue." Jett v.
Dallas Indep. Sch. Dist., 491 U.S. 701,
737 (1989). It is necessary to initially
determine which officials have final
policymaking authority because "[o]nce
those officials who have the power to
make official policy on a particular
issue have been identified, it is for the
jury to determine whether their decisions
have caused the deprivation of rights at
issue by polices which affirmatively
command that it occur or by acquiescence
in a longstanding practice or custom
which constitutes the standard operating
procedure of the local governmental
entity." Id. (internal citations and
quotation marks omitted). The district
court said that it did not "even [have]
’bare allegations’ from which to string
together an argument that the individual
Defendants enjoyed final decision-making
authority." Horwitz v. Board of Educ. of
Avoca, No. 98 C 6490, 2000 WL 1100858, at
*3 (N.D. Ill. June 7, 2000). Deciding
whether a specific official has final
policymaking authority is a question of
state law. See Duda v. Board of Educ. of
Franklin Park Pub. Sch. Dist. No. 84, 133
F.3d 1054, 1061 (7th Cir. 1998). We have
said that "nothing in the [Illinois]
School Code allows us to infer that a
superintendent or principal has been
delegated policymaking authority with
respect to personnel decisions." Id.
Furthermore, there is no reason for us to
believe, based on the Illinois School
Code, see 105 ILCS 5/10-12, that the
president of a school board has final
policymaking authority. We agree with the
district court that Horwitz has not
provided us with any basis to conclude,
beyond her own bare allegations, that
either Dr. Sloan (superintendent of
schools of Avoca District No. 37), Dr.
Biancalana (principal of Avoca West
School), or Ballantyne (president of the
Avoca School Board) is a final
policymaker. Horwitz’s claim against Dr.
Sloan, Dr. Biancalana, and Ballantyne in
their official capacities was
appropriately dismissed by the district
court.
What remains to be considered is
Horwitz’s sec. 1983 claim against the
Board. Horwitz’s sec. 1983 claim against
the Board, which is an agency of the
municipal government, see Smith v.
Chicago Sch. Reform Bd. of Trs., 165 F.3d
1142, 1148 (7th Cir. 1999), may not be
based on respondeat superior. Id. Monell
places the burden on Horwitz to
demonstrate that an official policy or
custom of the Board’s caused her injury.
Id. at 1148-49. Horwitz in her complaint
states, "On several occasions, including
January 1998, the plaintiff or a
representative informed the school board
of the numerous violations of plaintiff’s
rights regarding age discrimination and
deficient educational practices. The
school board maintained a policy of
ignoring such violations in reckless
disregard of the truthful and well
substantiated allegations." Horwitz, in
her complaint, further alleges that the
Board improperly issued its first and
second notice of remedial warning,
inappropriately compelled her to undergo
a psychological exam, and apparently
ordered her not to express her opinion
about special education situations to
parents on the basis that since she was
not certified in special education her
opinion was not authoritative, even
though Horwitz claims she has an
obligation under the IDEA statute to
express her opinion on such matters. The
rest of her complaint focuses more
exclusively on the behavior of particular
individuals, like Dr. Sloan, Dr.
Biancalana, and Ballantyne. She
acknowledges such an emphasis in her
complaint, when she states, "In engaging
in the acts and conduct aforesaid,
defendants and each of them were acting
under color of the Illinois School Code,
a statute of the State of Illinois. Such
acts and conduct, having been done and
taken by, and with the approval and
ratification of persons in policy-making
positions constitute a policy of
defendant Board Of Education." However, we
have concluded that Dr. Sloan, Dr.
Biancalana, and Ballantyne do not have
policymaking authority and furthermore
the Board cannot be liable for these
defendants’ actions based on respondeat
superior. Quite simply, Horwitz’s
complaint does not adequately explain how
the Board maintained a policy or custom
that was directed at suppressing her
right to free speech. Thus, the claim
against the Board was properly dismissed.
III. Conclusion
For the reasons stated herein, we AFFIRM
the decision of the district court.
FOOTNOTES
/1 Horwitz challenges the district court’s decision
not to accept her memorandum of law in opposition
to the defendants’ motion for summary judgment.
However, the district court did allow Horwitz to
file a Local General Rule 12(N) statement of
facts. Since we review a grant of summary judg-
ment de novo, a party cannot be prejudiced by a
district court’s decision not to consider her
summary judgment memorandum as long as the court
has addressed the motion on its merits. See
Scaife v. Racine County, 238 F.3d 906, 907 (7th
Cir. 2001); Price v. City of Chicago, 251 F.3d
656, 658 n.2 (7th Cir. 2001). The district court
did contemplate the merits of Horwitz’s case
before granting summary judgment in favor of the
defendants; consequently, Horwitz has not been
prejudiced by the court’s decision not to consid-
er her summary judgment motion. Horwitz in her
brief has raised numerous other claims, not dis
cussed above, that she asserts are worthy of
consideration. Nonetheless, after careful review
of the record, we have determined that these
claims are without merit.
/2 Horwitz has brought her ADEA and retaliation
claim based on the ADEA against only the Board.
She has properly done so, as we have suggested
that there is no individual liability under the
ADEA. See Matthews v. Rollins Hudig Hall Co., 72
F.3d 50, 52 n.2 (7th Cir. 1995); Thelen v. Marc’s
Big Boy Corp., 64 F.3d 264, 267 n.2 (7th Cir.
1995). Horwitz has brought the rest of her
claims--FMLA, defamation, and sec. 1983--against
all of the named defendants (the Board, Dr.
Sloan, Dr. Biancalana, and Ballantyne).
/3 As will be seen in our discussion below concern-
ing Horwitz’s retaliation claim based on the ADEA
in section B, the Board has provided a legiti-
mate, non-discriminatory reason for terminating
her that did not involve pretext. Therefore, even
if we presumed that Horwitz did make out a
successful prima facie case of age discrimina-
tion, her ADEA claim would still fail because we
have found that the Board legitimately terminated
her.