Laura Simpson v. Office of the Chief Judge of t ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1523
L AURA M. S IMPSON,
Plaintiff-Appellant,
v.
O FFICE OF THE C HIEF JUDGE OF THE C IRCUIT C OURT OF
W ILL C OUNTY, M IKE C OSTIGAN, and D OUG W ILSON,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:05-cv-02592—Elaine E. Bucklo, Judge.
A RGUED D ECEMBER 5, 2008—D ECIDED M ARCH 23, 2009
Before R IPPLE, K ANNE, and T INDER, Circuit Judges.
T INDER, Circuit Judge. Laura Simpson’s employment as
the head of the River Valley Juvenile Detention Center
(“RVDC”) came to an end in November 2002, when she
was fired by her employer, the Office of the Chief Judge
of the Circuit Court of Will County, Illinois. The Chief
Judge gave a number of reasons for her termination,
principally citing a report prepared by the Will County
2 No. 08-1523
Auditor that alleged that Simpson engaged in acts of
fraud and impropriety. Simpson, however, assumed a
more nefarious purpose—she was fired while on
medical leave—so she sued the Office of the Chief Judge
and others for violations of the Family Medical Leave
Act (“FMLA”). She claimed that, by firing her, the defen-
dants interfered with her substantive FMLA rights, 29
U.S.C. § 2615(a)(1), and discriminated against her based
on her taking FMLA leave, id. § 2615(a)(2). The district
court sided with the Defendants, though, granting them
summary judgment on all of Simpson’s claims. Simpson
appeals from that decision. But because Simpson fails
to undermine the Chief Judge’s claimed reliance on the
Auditor’s report (and the State’s Attorney’s recommenda-
tions, which echoed the Auditor’s), we affirm.
I. Background
We recount the facts in the light most favorable to
Simpson, the non-moving party. Ridings v. Riverside Med.
Ctr., 537 F.3d 755, 760 (7th Cir. 2008). Simpson worked
for the Office of the Chief Judge, overseeing operations
at RVDC as its Director, since 1999. She had a clean em-
ployment record, never formally disciplined or given
a negative performance review. In September 2002, her
title changed to “Superintendent” when Chief Judge
Rodney Lechwar reorganized the office and created the
Court Services Department, which encompassed the
RVDC. The reorganization changed more than just her
title. She previously reported directly to the Chief Judge,
but under the new structure, she reported to Mike
No. 08-1523 3
Costigan and Doug Wilson, the Director and Assistant
Director of the new Department. Still, though Costigan
and Wilson were technically her superiors, only Judge
Lechwar retained the authority to fire her.
On the same day that Judge Lechwar informed Simpson
of the new office structure, Simpson informed Judge
Lechwar of her need for time off to seek medical treatment
because she was having trouble walking. For many
months, Simpson experienced pain and popping in
her right knee. The pain intensified in August and Septem-
ber of 2002, and her family doctor, Dr. Clark, referred
her to an orthopedic specialist, Dr. Farrell. On Septem-
ber 24, Simpson told Judge Lechwar about her
upcoming appointment with the specialist, and after she
saw Dr. Farrell, Simpson informed Assistant Director
Wilson that she might need more time off for con-
tinuing treatment.
Simpson regularly reported to work until October 16,
when she visited Dr. Clark and received a note
excusing her from work until October 31. From the 16th
through the 31st, Simpson took paid sick leave. After
an orthopedic appointment on the 31st, Dr. Farrell sent
Wilson a note stating that Simpson was to be “off work
until further notice.” Simpson elected to have surgery on
her knee, which was to take place in mid-December,
and she planned to continue to take paid sick leave
throughout that time.
The next day, November 1, Simpson and Wilson
talked on the phone. Because Simpson did not give a
definite date of return, Wilson asked her to call the office
4 No. 08-1523
every morning and report her status. Simpson felt this
was unnecessary, yet Wilson remained steadfast. So, to
avoid this reporting requirement, Simpson requested
FMLA paperwork from Wilson. Wilson denied her
request, though, telling her that she was not eligible
for FMLA because she had not worked in her current
position as Superintendent for more than a year. (That
denial was wrong—though her title changed, Simpson
was still employed by the Office of the Chief Judge, as
she had been for well over one year, see 29 U.S.C.
§ 2611(2)(A); 29 C.F.R. § 825.110—but it proves to be
inconsequential to our analysis because, as we explain,
Simpson’s FMLA claims are meritless.) Undeterred,
Simpson then contacted the Will County Human
Resources Department, but they, too, denied her request
for the FMLA documents. So Simpson stayed on sick
leave with no expected date of return.
At the same time Simpson was attempting to arrange
her leave, the Will County Auditor’s Office released a
report (the “Audit Report”) alleging that Simpson had
engaged in fraud and other misconduct as head of RVDC.
At the behest of Will County Board Member Ann Dralle,
the Auditor’s Office had been investigating questionable
billing and payment practices at RVDC since July of
2002. Initially, the inquiry focused on a county psycho-
logist, Dr. Amy Brown, who allegedly double-billed the
county for work performed elsewhere and who spent
only a fraction of her time at RVDC, despite receiving full-
time pay. The Auditor’s Office uncovered evidence
that seemed to substantiate the allegations against Dr.
Brown. But like so many public corruption scandals, the
No. 08-1523 5
deeper the auditors dug, the broader the scope of their
investigation became. It eventually reached Simpson
(referred to in the Report by her maiden name, Munch),
though this stage of the investigation began after
Simpson began taking sick leave for her knee problem.
The auditors investigated Simpson’s supervision of
Dr. Brown, but they didn’t stop there; they examined
other aspects of Simpson’s work at RVDC. In the end, the
investigation revealed more about Simpson than it
did about Dr. Brown, and the Audit Report, released
on October 30, expressly recommended Simpson’s im-
mediate termination as Superintendent of RVDC.
The Audit Report leveled multiple allegations of mis-
conduct against Simpson. First, it alleged that Simpson
knew about many of Dr. Brown’s improprieties, such as
Dr. Brown’s limited hours at RVDC, her receiving pay-
ment from neighboring Illinois counties for psycho-
logical evaluations undertaken while on Will County’s
time, and her receiving payment from Will County for
court-ordered evaluations for which she was already
compensated as a full-time employee. The Audit Report
characterized Dr. Brown’s conduct as “fraudulent prac-
tice” performed with “the full knowledge of Director
Munch.” The Audit Report also alleged that Simpson
knew that Dr. Brown personally conducted relatively
few psychological evaluations of RVDC juveniles and
instead left the evaluation work to RVDC staff. This
was problematic, the Report concluded, because the
staff occasionally used improper evaluation techniques,
which “could invalidate the results thus posing a major
liability to the County.”
6 No. 08-1523
Next, the Audit Report described Simpson’s relation-
ship with an RVDC juvenile detainee, which, the Report
alleged, violated RVDC policy. RVDC’s “Rules of Conduct”
prohibited certain RVDC staff, including Simpson, from
“fraternizing” with the detainees. The Report acknowl-
edged that, in September 2002, Judge Badger (a Will
County juvenile court judge) issued an order permitting
the juvenile in question to maintain her relationship
with Simpson and another RVDC employee, Anthony
Malito. However, the Report found that Simpson had
repeated contact with the juvenile, often taking the
juvenile outside RVDC’s walls, beginning in July 2002,
before Judge Badger ever issued the order. Conse-
quently, the Report concluded that Simpson’s conduct
with the juvenile could expose Will County to liability.
The Audit Report also found that Simpson acted negli-
gently in handling an attempted suicide at RVDC during
the previous summer. The Report stated that RVDC
staff contacted Simpson about the incident, but Simpson
failed to come to the facility or phone the juvenile’s
parents immediately. Instead, the following day, Simpson
allegedly instructed an RVDC supervisor to call the juve-
nile’s parents and “be vague and the details will come.”
The Report again concluded that Simpson’s conduct
could have adverse legal ramifications for the county.
In the end, the Audit Report recommended Simpson’s
immediate termination. It found that Simpson “committed
fraudulent acts,” “violated the RVDC code of conduct,”
and “put the County of Will at risk for embarrassment
and lawsuits.” The auditors notified the Illinois State’s
Attorney’s office, which began its own investigation.
No. 08-1523 7
Shortly after its release, Judge Lechwar, Costigan, and
Wilson became aware of the Audit Report’s allegations
against Simpson. Judge Lechwar discussed it with the
Auditor and the Illinois State’s Attorney’s Office, both
of whom recommended that Judge Lechwar fire
Simpson. On November 19, Costigan called Simpson,
who was still on medical leave, and asked her to attend a
meeting with the Auditor and the State’s Attorney
about the investigation. Simpson refused, citing her
leave and her need for surgery. She then sent Costigan
a prescription signed by Dr. Clark explaining that she
would be off work until January.
Two days later, Judge Lechwar wrote Simpson directly,
requesting that she come in to discuss problems with
her job performance. Simpson obliged, and she and her
lawyer met with Judge Lechwar and Costigan on Novem-
ber 26. At this meeting, Judge Lechwar fired Simpson.
The judge outlined over a dozen reasons for Simpson’s
discharge, including the Audit Report’s findings, which,
as noted, included Simpson’s failure to properly super-
vise Dr. Brown, her personal relationship with a juvenile
detainee, and her mishandling of an attempted suicide.
Judge Lechwar also cited Simpson’s allegedly poor rela-
tionships with county board member Ann Dralle and
county judge William Penn, her previous romantic rela-
tionship with a subordinate employee, and her alleged
disrespect of Costigan and Wilson. In addition, Judge
Lechwar said that Simpson had not “kept people in-
formed” about her medical leave. At the end of the meet-
ing, Simpson asked to stay on the payroll until mid-
December, but Judge Lechwar made his decision effec-
8 No. 08-1523
tive immediately. Simpson was still on paid medical
leave at the time.
Simpson sued the Office of the Chief Judge, Costigan,
and Wilson (collectively, the “Defendants”) for interfer-
ence with her FMLA rights, 29 U.S.C. § 2615(a)(1), and
retaliation for her taking medical leave, id. § 2615(a)(2),
arising out of her demotion from Director of RVDC to
Superintendent and her termination on November 26.
(Though Simpson was not on “FMLA leave” when she
was fired, she was on accrued paid sick leave, which
an employee may substitute for the leave guaranteed
under the FMLA. Id. § 2612(d)(2)(B).) During discovery,
depositions were taken, affidavits submitted, and docu-
ments disclosed. But Simpson claims that two crucial
documents, Judge Lechwar’s handwritten notes from
the November 26 termination meeting and his affidavit,
were provided very late in the game, accompanying
the Defendants’ motion for summary judgment after
discovery ended. Simpson questioned the credibility
of these two documents.
The district court granted summary judgment for the
Defendants on all claims, finding that Simpson failed to
demonstrate a genuine issue that Judge Lechwar’s
reasons for firing her were pretext for an improper
motive. Simpson now appeals both the interference
and retaliation claims but only as they relate to her termi-
nation, not her demotion.
No. 08-1523 9
II. Discussion
We review the district court’s grant of summary judg-
ment de novo. Ridings, 537 F.3d at 760. We view the
facts and all reasonable inferences drawn therefrom in
the light most favorable to the non-moving party. Id.We affirm if we determine that “there is no genuine
issue as to any material fact and . . . the moving party
is entitled to a judgment as a matter of law.” Id.; Fed. R.
Civ. P. 56(c). But the non-moving party must present
more than just “bare allegations” to survive summary
judgment. de la Rama v. Ill. Dept. of Human Servs., 541
F.3d 681, 685 (7th Cir. 2008). The non-moving party
must present “ ‘evidence on which the jury could reason-
ably find for the nonmoving party.’ ” Id. (quoting
Rozskowiak v. Vill. of Arlington Heights, 415 F.3d 608, 612
(7th Cir. 2005)).
A. FMLA Interference
The FMLA entitles any eligible employee to twelve
weeks of medical leave if the employee is unable to per-
form the functions of her position due to a serious
health condition. 29 U.S.C. § 2612(a)(1)(D); de la Rama,
541 F.3d at 686. The FMLA also entitles an employee on
leave to the right to return to the same position and
benefits she had just before she took leave. 29 U.S.C.
§ 2614(a)(1)-(2); Vail v. Raybestos Prods. Co., 533 F.3d 904,
909 (7th Cir. 2008). Employers must not interfere with
an employee’s attempt to exercise any of her FMLA
rights. 29 U.S.C. § 2615(a)(1); de la Rama, 541 F.3d at 686.
Firing an employee to prevent her from exercising her
10 No. 08-1523
right to return to her prior position can certainly inter-
fere with that employee’s FMLA rights. See Haschmann
v. Time Warner Entm’t Co., LP, 151 F.3d 591, 604-05 (7th
Cir. 1999).
The burden to prove FMLA interference lies with the
plaintiff-employee. Darst v. Interstate Brands Corp., 512 F.3d
903, 908 (7th Cir. 2008); Kohls v. Beverly Enters. Wis., Inc.,
259 F.3d 799, 804 (7th Cir. 2001). To prevail, Simpson
must show 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.
Ridings, 537 F.3d at 761. This case concerns the fifth crite-
rion. (Though the Defendants argued on summary judg-
ment that Simpson failed to provide adequate notice of
her leave, the district court decided for Simpson on that
issue, and the Defendants do not challenge that ruling.)
Simpson must prove that the Defendants denied her an
FMLA benefit. Simpson was already on leave when
she was fired, so the benefit at issue is her right to rein-
statement.
But an employee’s right to reinstatement is not abso-
lute. Kohls, 259 F.3d at 804. The FMLA allows an employer
to “refuse to restore an employee to their former position
when restoration would confer a ‘right, benefit, or position
of employment’ that the employee would not have been
entitled to if the employee had never left the workplace.”
No. 08-1523 11
Id. at 805 (quoting 29 U.S.C. § 2614(a)(3)(B)). In other
words, an employee is not entitled to return to her prior
position if she would have been demoted or terminated
regardless of whether she took FMLA leave. See Breneisen
v. Motorola, Inc., 512 F.3d 972, 978 (7th Cir. 2008). For
instance, “an employee may be fired for poor performance
when she would have been fired for such performance
even absent her leave.” Kohls, 259 F.3d at 805. We must
therefore examine why Judge Lechwar fired Simpson. Id.The Defendants may present evidence that Simpson was
not entitled to her position, regardless of her leave. Id. at
804. Then, to survive summary judgment, Simpson must
“overcome the employer’s assertion” and raise a genuine
issue of material fact that she was entitled to be rein-
stated. Id.; see Mitchell v. Dutchmen Mfg., Inc., 389 F.3d
746, 748 (7th Cir. 2004).
That Simpson was fired while on medical leave does not
alter our inquiry. We recognize that an employee’s termi-
nation while she was on leave could, in some circum-
stances, create an inference of employer impropriety: “if,
for example, a supervisor who had been aware of prob-
lems with an employee did not decide to fire the em-
ployee until she took leave, and the supervisor based
the firing on the incidents of which the employer had
already been aware.” Kohls, 259 F.3d at 805-06. But the
timing of termination is not, by itself, a ticket to trial:
“[W]here an employee is terminated while taking FMLA
leave, the trial court must determine whether the termina-
tion was illegally motivated by the employee’s choice to
take leave, or whether the termination was motivated by
other, valid reasons.” Phelan v. City of Chicago, 347 F.3d 679,
12 No. 08-1523
683 (7th Cir. 2003). Simpson bears the burden of proving
that Judge Lechwar’s reasons were “illegally motivated”
and thus that she was entitled to reinstatement. See Mitch-
ell, 389 F.3d at 748.
Other than timing, Simpson offers hardly any evidence
linking her termination to her leave-taking. She cites a
snippet from Judge Lechwar’s deposition, in which
he described what some staff members said after repeat-
edly being unable to contact Simpson about the
Auditor’s and State’s Attorney’s investigations: “As a
result, words were bandied about by various people,
well, is she hiding or is she sick or what is going on. Those
kinds of questions were raised.” We find this testimony
of little help to Simpson. Though Simpson would have
us focus on the word “sick,” the context of the testimony
shows that Judge Lechwar’s comment had nothing to do
with her medical leave. Instead, it concerned the
ongoing investigation into Simpson’s alleged miscon-
duct and reflected how the staff expressed its frustration
about Simpson’s unwillingness to cooperate with that
investigation. This testimony is not evidence of FMLA
interference.
Simpson also tries to connect the Will County Auditor’s
investigation to her medical leave, in essence arguing that
the Audit Report was the product of a witch hunt. She
points to the timing of the investigation, which she
claims began just after she took leave, and contends that
it raises a triable inference that the investigation was
prompted by her taking leave. The record, however, shows
a different sequence of events. Simpson is correct that
No. 08-1523 13
Catherine Pleasant, the deputy auditor, testified that
she began investigating Simpson’s conduct in the fall of
2002, after Simpson had taken leave. But this investigation
grew out of the Auditor’s inquiry into Dr. Brown’s ques-
tionable billing practices at RVDC, and county board
member Ann Dralle requested that inquiry in July 2002,
months before Simpson ever mentioned taking medical
leave.
Even if we accept Simpson’s version of the Audit Re-
port’s timing, though, she fails to cite sufficient evidence
to link the Audit Report to her leave-taking. Temporal
proximity between an adverse employment action and a
plaintiff’s exercise of her statutory rights “will rarely be
sufficient in and of itself to create a triable issue.” Stone v.
City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 644 (7th
Cir. 2002). Simpson presents no evidence that Judge
Lechwar, Costigan, or Wilson instigated, encouraged, or
had anything to do with the Auditor’s investigation of
Simpson. Pleasant testified that county board member
Dralle initially requested the RVDC review, and the
record is devoid of any suggestion that the Defendants
influenced that request. Likewise, the record reveals
no evidence evincing animus toward Simpson on the
part of the Auditor’s Office, an independent county
agency, nor does it show that the Defendants influenced
the Auditor’s investigation. Accordingly, we find no
evidence to support an inference that any of the Defen-
dants, board member Dralle, or the Auditor’s Office,
individually or collectively, hatched a plan to terminate
Simpson for taking leave by using the Auditor’s investiga-
tion as cover.
14 No. 08-1523
In fact, the timing of the release of the Audit Report
undermines Simpson’s position. We have said that an
employee might be able to sustain her FMLA interference
claim against an employer who waited until the em-
ployee took leave to fire her for problems of which the
employer was already aware. Kohls, 259 F.3d at 806. In
this case, however, Judge Lechwar became aware of the
Audit Report’s allegations and recommendation
weeks after Simpson took leave. The Report provided
new information upon which Judge Lechwar based his
termination decision, supporting the Defendant’s con-
tention that Judge Lechwar terminated Simpson for
reasons unrelated to her leave.
The only strand of evidence that arguably ties Simpson’s
termination to her leave-taking is her deposition testi-
mony that, at the termination meeting, Judge Lechwar
stated that Simpson had not “kept people informed” about
her sick leave. But that link is a loose one. Firing an em-
ployee for failing to communicate about her leave is
different from firing an employee for taking that leave;
Simpson must prove the latter. Still, if viewed in an
evidentiary vacuum, this testimony might suggest that
Simpson would still be employed had she not taken
medical leave.
But we do not evaluate FMLA interference claims by
looking at snippets of deposition testimony in isolation.
When an employer presents evidence that its employee
was not entitled to her position regardless of her taking
leave, the employee must “overcome the employer’s
assertion” to establish a viable FMLA interference claim.
No. 08-1523 15
Id. at 804. In other words, Simpson’s burden on sum-
mary judgment is to raise a genuine issue of fact that
she was entitled to be reinstated, id.; Mitchell, 389 F.3d at
748, or, put differently, that her termination was “illegally
motivated by [her] choice to take leave” and not “moti-
vated by other, valid reasons,” Phelan, 347 F.3d at 683.
Simpson fails to sufficiently dispute the most compelling
reason for her termination: that Judge Lechwar relied
on the Audit Report’s findings.
At the time of her firing, Simpson was under investiga-
tion by the State’s Attorney and the Will County Auditor
for her alleged involvement in a fraudulent billing
scheme. The Audit Report explicitly recommended her
immediate dismissal because she “committed fraudulent
acts” and “violated the RVDC code of conduct on more
than one instance.” The Report detailed allegations of
misconduct that included Simpson’s knowledge of
Dr. Brown’s unsavory billing practices, Simpson’s con-
tact with a juvenile detainee, and Simpson’s mishandling
of an attempted suicide at her facility. Simpson does not
dispute that Judge Lechwar met with officials from the
State’s Attorney’s office and the Auditor’s office prior
to the November 26 termination meeting. And she
does not dispute that the State’s Attorney urged
Judge Lechwar to terminate her. Thus, it is clear that
Judge Lechwar was aware of the allegations of impro-
priety circling Simpson. In fact, Judge Lechwar had
Costigan call Simpson to see if she would come in and talk
with the prosecutors and auditors. Such allegations
and recommendations by independent state and local
agencies are certainly “valid reasons” to terminate an
16 No. 08-1523
employee. See Kohls, 259 F.3d at 805 (“An employer un-
doubtedly has the discretion to fire an at-will employee
for mishandling and mismanaging funds or for poor
performance, or both.”).
According to Simpson, however, these reasons are far
from valid; they’re lies. She contends that Judge Lechwar’s
justification for her termination, including his reliance
on the Audit Report, was merely pretext for his true
purpose—to fire her because she took FMLA leave. Al-
though proof of pretext is not necessarily sufficient, by
itself, to support an FMLA interference claim, it can
have some evidentiary value. Id. at 806 (citing Diaz v.
Fort Wayne Foundry Corp., 131 F.3d 711, 713 (7th Cir.
1997)). But Simpson’s pretext arguments fail because
the record does not even hint that Judge Lechwar lied
when he said he relied on the Audit Report and fired
her for mismanaging Dr. Brown, violating the RVDC
Rules of Conduct and mishandling an attempted suicide.
Simpson does not dispute Judge Lechwar’s awareness
of the Auditor’s findings or the State’s Attorney’s recom-
mendations. Instead, she attacks the Audit Report and
those who prepared it, arguing that the Report was inac-
curate and that the preparers’ “knowledge of the River
Valley Detention Center . . . was grossly wanting.” She
argues that Judge Lechwar knew the Report mischarac-
terized her conduct and that he could not have honestly
relied on it to fire her. Even taking the facts in the light
most favorable to Simpson, though, the evidence does not
show that Judge Lechwar believed the Report to be a
fraud. Not only does Simpson fail to provide any evi-
No. 08-1523 17
dence that Judge Lechwar believed the Report to be
false, but she fails to show that Judge Lechwar even
had enough information to plausibly question its accuracy.
For example, the Report alleged that Simpson knew
that Dr. Brown, while employed full-time at RVDC,
(1) worked only a few hours per week, (2) had RVDC
staff administer psychological evaluations, (3) improperly
billed other counties for out-of-county work, and
(4) improperly billed Will County for court-ordered
psychological evaluations despite her full-time status. It
is without dispute that Judge Lechwar lacked the knowl-
edge to question the accuracy of the first three allega-
tions. Judge Lechwar was not Dr. Brown’s supervisor;
Simpson was. Simpson does not suggest that
Judge Lechwar was aware of Dr. Brown’s work schedule,
how Dr. Brown conducted evaluations, or if Dr. Brown
performed out-of-county work.
Judge Lechwar might have been able to question the
fourth allegation, since his office approved payments to
Dr. Brown. Yet Simpson cites no evidence to suggest
that Judge Lechwar knew that Dr. Brown was separately
billing the county for psych evaluations on top of her full-
time pay, or that Judge Lechwar believed that Dr. Brown
was permitted to receive such payments. In fact, Simpson
cites no evidence that Dr. Brown was entitled to
separately bill the county at all. Simply because
Judge Lechwar’s office paid Dr. Brown’s bills does not
raise an inference that Judge Lechwar doubted the Audit
Report’s accuracy. Without some evidence that Judge
Lechwar believed the Audit Report’s findings with
18 No. 08-1523
respect to Simpson and Dr. Brown were false, Simpson
fails to show that Judge Lechwar’s reliance on those
findings was pretextual.
Similarly, Simpson challenges Judge Lechwar’s reliance
on the Report’s allegation that she violated the RVDC
“Rules of Conduct.” The Report alleged that Simpson
violated the Rules by “fraternizing” with a female
detainee, purchasing meals and clothing for her, and
taking her on excursions outside the RVDC. Simpson does
not deny her relationship with the juvenile. Instead, she
argues that her conduct did not violate the “no-fraterniza-
tion policy” and Judge Lechwar knew it, implying that
Judge Lechwar could not have honestly relied on an
allegation he knew was false. Simpson cites a court order
from Judge Badger, the county juvenile court judge,
which purported to authorize Simpson to maintain a
relationship with the juvenile. But this order was issued
on September 30, 2002—the Report alleged that
Simpson went on excursions with the juvenile outside
the RVDC at least ten times before that date. So the order
is not evidence that Judge Lechwar believed the Report
was wrong.
Undeterred, Simpson cites a transcript of an Octo-
ber 2001 proceeding, in which Judge Badger discussed
allowing contact between Simpson and this same de-
tainee. This transcript, she argues, authorized Simpson’s
contact with the juvenile before Judge Badger issued the
September 2002 order and therefore covered those ten
excursions listed in the Report. But this argument is
missing a key step—Simpson fails to point to any
No. 08-1523 19
evidence that Judge Lechwar read or knew about the
October 2001 transcript before he fired her. Simpson
claims that Wilson knew about it, but she fails to show
that Wilson told Judge Lechwar about it (Wilson was
not at the termination meeting, after all) or that
Judge Lechwar learned about it on his own. Instead, she
contends that Judge Lechwar and Costigan “recklessly
failed to examine” the transcript. But a failure to exa-
mine is not proof of pretext. It does not show that Judge
Lechwar doubted the Report’s veracity; at best it shows
negligence, and negligence is not pretext.
Even if Judge Lechwar knew about the transcript, it
wouldn’t help Simpson’s case. Simpson cannot show why
the transcript would lead Judge Lechwar to believe the
Audit Report was inaccurate. Simpson claims that the
transcript (and the court order, for that matter) absolved
her of her duty to abide by the Rules of Conduct. But
neither the transcript nor the order purports to super-
sede the Rules of Conduct. And Simpson does not point
us to any provision in the Rules or in any other RVDC or
Will County policy that would authorize Simpson to
fraternize with a detainee under any circumstances. So
even with the transcript, Judge Lechwar would have
no reason to doubt the Audit Report’s finding that
Simpson violated the Rules. Accordingly, neither the
transcript nor the order support Simpson’s claim that
Judge Lechwar believed the Audit Report’s allegations
were false but relied on them anyway as cover for an
unlawful motive.
Simpson also aims to prove pretext by attacking Judge
Lechwar’s credibility more generally. For instance, she
20 No. 08-1523
suggests that Judge Lechwar fabricated his handwritten
meeting notes and his affidavit, because the Defendants
purportedly produced them “at the eleventh hour,” after
discovery ended. See Fischer v. Avanade, Inc., 519 F.3d 393,
407 (7th Cir. 2008) (“[L]ate justification . . . provided at
the eleventh hour in conjunction with Defendant’s
motion for summary judgment, raises a genuine issue
of material fact as to whether this justification is a later
fabrication on Defendant’s part.”). In her deposition,
however, Simpson acknowledged that Judge Lechwar
made notes during the termination meeting and that she
saw those notes at his deposition. Now on appeal, though,
Simpson believes she was mistaken at her deposition,
and contends that the notes she saw during
Judge Lechwar’s deposition were actually Costigan’s, not
Judge Lechwar’s. Even assuming that Simpson is correct
on this point, the Defendants’ late disclosure of the notes
does not raise a triable issue as to fabrication. Costigan’s
meeting notes, which Simpson does not allege were
disclosed late or fabricated, are substantially similar to
Judge Lechwar’s, listing many of the same reasons for
termination contained in Judge Lechwar’s notes. Hence,
even if Judge Lechwar’s notes were disclosed late, the
“justification” for Simpson’s termination was not, as it
was also contained in Costigan’s notes, which were
timely disclosed.
Finally, Simpson assails Judge Lechwar’s credibility by
citing contradictions between his affidavit and the other
Defendants’ depositions. But none of their testimony
established that Judge Lechwar fired Simpson for an
illegal purpose, and none contradicted the claim that the
No. 08-1523 21
Audit Report’s findings motivated Simpson’s termina-
tion. In other words, neither this testimony nor any
other allegedly contradictory evidence (e.g., Judge Penn
testified that he had a good relationship with Simpson)
helps Simpson “overcome the employer’s assertion” that
she was fired for reasons wholly unrelated to her medical
leave. Cf. Russell v. Acme-Evans Co., 51 F.3d 64, 69 (7th
Cir. 1995) (“The fact that some of these reasons were
successfully called into question by Russell’s deposition
or affidavit does not defeat summary judgment if at
least one reason for each of the actions stands unques-
tioned.”).
Because Judge Lechwar’s reliance on the Audit Report’s
findings and recommendations stands unquestioned
and because Simpson fails to provide any evidence that
she would still be employed had she not taken leave,
we conclude that Simpson has not raised a genuine issue
that she was entitled to reinstatement. She cannot prove
interference with her FMLA rights; the district court
properly granted summary judgment for the Defendants
on this claim.
B. FMLA Discrimination
Simpson also alleges that the Defendants discriminated
against her for taking leave. In addition to prohibiting
interference with an employee’s FMLA rights, the
FMLA proscribes “discriminat[ion] against any individual
for opposing any practice made unlawful by this
subchapter.” 29 U.S.C. § 2615(a)(2). There are two paths
through which a plaintiff might establish a discrimina-
22 No. 08-1523
tion claim—the “direct” and “indirect” methods. Buie v.
Quad/Graphics, Inc., 366 F.3d 496, 503 (7th Cir. 2004).
Simpson argues that she prevails under either method.
1. The Direct Method
To survive summary judgment under the direct method,
Simpson must 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). Either direct or circumstantial evidence
will do. Id. “Circumstantial” evidence is evidence that
allows the factfinder to “infer intentional discrimination
by the decisionmaker,” while “direct” evidence “prove[s]
the fact in question without reliance upon inference.” Id.(emphasis omitted). Direct evidence usually involves
some form of admission by the decisionmaker. Id.In Simpson’s case, neither type of evidence is present to
prove a causal connection between her leave and her
termination. Simpson claims that the totality of the cir-
cumstantial evidence—the timing of the audit and fact
that she has never been disciplined or received a negative
review—evinces retaliatory intent. As we discussed in
the previous section, it does not. The audit began in July;
Simpson took leave in October. Moreover, Simpson offers
no evidence that Pleasant or Dralle harbored any discrimi-
natory animus toward her, nor does she cite any evidence
suggesting that Judge Lechwar influenced the audit to
target Simpson for taking leave. That an employee has
never been disciplined or negatively reviewed in the
No. 08-1523 23
past does not, by itself, raise an inference that she was
fired for improper reasons. An employer’s perception of
an employee’s performance can change, and might some-
times change dramatically. Case in point, both an inde-
pendent auditor and the State’s Attorney’s office recom-
mended Simpson’s firing due to serious allegations of
fraud and impropriety. Unable to refute Judge Lechwar’s
reliance on these allegations, and without some evidence
linking her leave to her termination, Simpson cannot
sustain her FMLA discrimination claim under the
direct method.
2. The Indirect Method
Under the indirect, burden-shifting method, the em-
ployee must establish a prima facie case by showing
that she
(1) engaged in a statutorily protected activity;
(2) met her employer’s legitimate expectations;
(3) suffered an adverse employment action; and
(4) was treated less favorably than similarly situ-
ated employees who did not engage in statutorily
protected activity.
Id. at 593; see also Buie, 366 F.3d at 503. If she satisfies the
four prima facie elements, the burden shifts to the em-
ployer to show a non-discriminatory reason for firing
the employee. Caskey, 535 F.3d at 593. If the employer
makes such a showing, the burden then shifts back to the
employee to establish that the purported reason is
pretextual. Id.24 No. 08-1523
Simpson’s claim under the indirect method falls short on
a number of levels. First, in her opening appellate brief,
Simpson argues that she is excused from showing that
she was treated less favorably than similarly situated
employees because her position was “unique.” Her
theory is itself somewhat unique and lacks circuit author-
ity. She asserts, in essence, that an employee holding a
position that has no comparison in an organization is
excused from pointing to a similarly situated employee
to fulfill her indirect method burden of production. In
support, she cites a series of “mini-reduction-in-force” (or
“mini-RIF”) cases, in which we dispensed with the “simi-
larly situated employee” element where an employer
terminated an employee and then, instead of refilling her
position, allowed other workers to absorb the fired em-
ployee’s duties. Bellaver v. Quanex Corp., 200 F.3d 485,
495 (7th Cir. 2000); Michas v. Health Cost Controls of Ill.,
Inc., 209 F.3d 687, 693 (7th Cir. 2000). But those circum-
stances do not describe Simpson’s case. She was not let
go in a RIF, mini or otherwise. A replacement was hired
for her position not long after she was terminated. Other
RVDC employees did not absorb her duties. And
Judge Lechwar did not characterize Simpson’s firing as
a reduction in force; he fired her for misconduct and
poor performance (which makes us wonder why Defen-
dants did not argue that Simpson failed to meet the
second prima facie element, that Simpson “met her em-
ployer’s legitimate expectations”).
Moreover, whether we should extend the mini-RIF
exception to non-mini-RIF cases where an employee
claims to occupy a truly “unique” position is a question
No. 08-1523 25
we need not decide. Simpson’s argument is made almost
in passing, without serious development. She never
explains why extending the mini-RIF exception is logical
or desirable, and in fact, she never recognizes that her
argument requires any extension of existing law at all.
Even if she did, she failed to identify facts at the
district court or on appeal to demonstrate that her posi-
tion was unique. In her abbreviated mention of her
“uniqueness” theory in this court, without record citation,
Simpson merely concludes that her position was singular
and that she was only person who occupied it and per-
formed her specific duties. She doesn’t even attempt to
look beyond the RVDC to assess whether anyone
employed by the Will County Circuit Court system
would fit a broad understanding of “similarly situated.”
Under Simpson’s undeveloped argument, nearly every
plaintiff claiming discrimination, particularly those in
supervisory roles, could claim that their position has
unique duties. This is clearly incorrect, particularly in
light of our precedent that courts are not bound by
rigid parameters when considering whether others are
similarly situated. See Humphries v. CBOCS West, Inc., 474
F.3d 387, 405 (7th Cir. 2007) (“[C]ourts should apply a
‘common-sense’ factual inquiry—essentially, are there
enough common features between the individuals to
allow a meaningful comparison? . . . It is not an unyielding,
inflexible requirement that requires near one-to-one
mapping between employees—distinctions can always
be found in particular job duties or performance histories
or the nature of the alleged transgressions.”), aff’d, 128
S. Ct. 1951 (2008). Accordingly, Simpson’s attempt to
26 No. 08-1523
duck the fourth leg of the indirect method was also
doomed for lack of showing her job’s uniqueness.
Perhaps Simpson already knew that, though, because
in her reply brief, she makes no mention of Bellaver, Michas,
or her “unique employee” exception. Instead, she
argues that she was treated differently from Anthony
Malito, the Assistant Superintendent of RVDC, whom
she contends was a similarly situated employee. But
Simpson’s about-face is too late. “Arguments raised for
the first time in a reply brief are waived.” James v. Sheahan,
137 F.3d 1003, 1008 (7th Cir. 1998). Not only that, but
Simpson failed to raise her comparator argument in
the district court, opting instead to rely on the mini-RIF
cases. This, too, results in waiver. Bus. Sys. Eng’g, Inc. v.
Int’l Bus. Machs. Corp., 547 F.3d 882, 889 n.3 (7th Cir.
2008) (“Arguments not raised before the district court
are waived on appeal.”).
Beyond being too late, Simpson’s Malito comparison
is also too little. Though he had a similar title, job descrip-
tion, and even some similar circumstances, Anthony
Malito was not sufficiently similarly situated to Simpson.
[A] plaintiff need not present a doppelganger who
differs only by having remained in the employer’s
good graces. But the comparator must still be
similar enough “to eliminate confounding vari-
ables, such as differing roles, performance histo-
ries, or decision-making personnel, [so as to]
isolate the critical independent variable: com-
plaints about discrimination.”
No. 08-1523 27
Filar v. Bd. of Educ. of City of Chi., 526 F.3d 1054, 1061 (7th
Cir. 2008) (second insertion in original) (quoting
Humphries, 474 F.3d at 405). As Assistant Superin-
tendent, Malito was directly under Simpson and he had
many of the same responsibilities as Simpson. He even
seemed to have “fraternized” with the same juvenile
detainee that Simpson did. And we have tended to look
more broadly for appropriate comparators when an
employee holds an arguably unique job description. See
McNabola v. Chi. Transit Auth., 10 F.3d 501, 514 (7th Cir.
1993) (holding that a per diem physician could be ade-
quately compared to per diem attorneys in an organization
with a limited number of per diem physicians).
But the Audit Report makes Malito far from comparable;
the Report didn’t even mention him. The Report and
its allegations surrounding Simpson’s supervision of
Dr. Brown, contact with the juvenile, and mishandling of
an attempted suicide would no doubt confound a
factfinder’s ability to accurately compare Malito’s em-
ployment to Simpson’s. Moreover, Simpson does not
suggest that Malito was, like her, under investigation by
the Illinois State’s Attorney. These differences in em-
ployment circumstances trump any similarity that
might allow a jury to “isolate the critical independent
variable” and infer that Simpson’s termination was re-
taliatory. See Argyropoulos v. City of Alton, 539 F.3d 724, 735
(7th Cir. 2008) (“Only if the other employee had engaged
in similar misconduct while employed by the City would
this employee possibly serve as a useful comparator.”
(emphasis omitted)).
28 No. 08-1523
Still, even if Simpson could identify an appropriate
comparator, whether it was Malito or someone else (or if
that identification were to be excused because of the
incomparable uniqueness of her position), Simpson’s
claim cannot survive summary judgment. Assuming that
Simpson could clear the low prima facie hurdle, the de-
fense’s presentation of a legitimate reason for her termina-
tion requires that she show proof of pretext. But, as we
discussed earlier, she cannot. Simpson fails to point to
any evidence of record from which a jury could infer
that Judge Lechwar’s reliance on the Audit Report’s
findings was pretextual. Accordingly, we conclude that
the district court’s grant of summary judgment on the
FMLA retaliation claim was correct.
III. Conclusion
Because we conclude that Laura Simpson failed to
show a genuine issue of fact that she was entitled to
reinstatement as Superintendent of RVDC following her
leave, we A FFIRM the district court’s grant of summary
judgment on her FMLA interference claim. We also con-
clude that Simpson failed to present evidence sufficient
for a jury to infer FMLA discrimination and thus A FFIRM
the district court’s grant of summary judgment on
that claim.
3-23-09