Terrence Preddie v. Bartholomew Consolidated Scho , 799 F.3d 806 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3125
TERRENCE PREDDIE,
Plaintiff-Appellant,
v.
BARTHOLOMEW CONSOLIDATED SCHOOL
CORPORATION,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:12-cv-00995-TWP-DML — Tanya Walton Pratt, Judge.
____________________
ARGUED APRIL 9, 2015 — DECIDED AUGUST 24, 2015
____________________
Before FLAUM, RIPPLE, and WILLIAMS, Circuit Judges.
PER CURIAM. Terrence Preddie worked as a fifth-grade
teacher at Columbus Signature Academy-Codrea Elemen-
tary School—part of the Bartholomew Consolidated School
Corporation (“BCSC”)—during the 2010–2011 school year.
After Mr. Preddie was absent twenty-three times, the BCSC
did not renew his contract. Mr. Preddie is diabetic, and his
son, Elliot, suffers from sickle cell anemia. Mr. Preddie is al-
2 No. 14-3125
so African-American. Following the non-renewal of his con-
tract, Mr. Preddie filed suit against the BCSC in state court,
alleging claims under Title VII of the Civil Rights Act of
1964, the Americans with Disabilities Act (“ADA”), the Fam-
ily and Medical Leave Act, (“FMLA”), 42 U.S.C. § 1981, and
the Civil Rights Acts of 1866, 1871, and 1991. The case was
removed to the Southern District of Indiana, and the district
court granted summary judgment in favor of the BCSC on
all of Mr. Preddie’s claims. We affirm the district court’s
judgment for the BCSC except as it relates to Mr. Preddie’s
FMLA claims. With respect to Mr. Preddie’s FMLA interfer-
ence and retaliation claims, we believe that genuine issues of
material fact preclude judgment for the BCSC on the present
record. We therefore reverse the district court’s judgment on
those claims and remand for further proceedings in the dis-
trict court.
I
BACKGROUND
A. Facts
Because the district court entered summary judgment for
the BCSC, we view the facts in the light most favorable to
Mr. Preddie, the nonmoving party. See, e.g., Gerhartz v. Rich-
ert, 779 F.3d 682, 685 (7th Cir. 2015).1
1 In awarding summary judgment to the BCSC, the district court deter-
mined that certain statements in Mr. Preddie’s affidavit were incon-
sistent with his deposition testimony and, therefore, did not consider
those statements in opposition to the BCSC’s motion for summary judg-
ment. That approach is consistent with our precedent. See, e.g., Russell v.
(continued…)
No. 14-3125 3
The BCSC is a public school corporation located in Co-
lumbus, Indiana, encompassing several schools, including
Rockcreek Elementary School (“Rockcreek”) and Columbus
Signature Academy-Fodrea (“CSA-Fodrea”). In 2009, the
BCSC hired Mr. Preddie as a second-grade teacher at Rock-
creek under a one-year teaching contract. Before his tempo-
rary contact expired, Dr. Linda DeClue, the Assistant Super-
intendent for Human Resources at the BCSC, wrote
Mr. Preddie a letter advising him that his contract with the
district would expire in June 2010 and that, if he wished to
be considered for another position for the following year, he
would need to submit a new application. At the bottom of
the letter, Dr. DeClue wrote a short note indicating that the
BCSC wanted to find a teaching position for Mr. Preddie the
following year.2
Dr. Diane Clancy, the principal at CSA-Fodrea, contacted
Mr. Preddie and asked that he consider applying for a fifth-
grade teaching position at CSA-Fodrea for the 2010–2011
school year. After meeting with Dr. Clancy and submitting
an application, Mr. Preddie was hired for the position, again
under a one-year teaching contract.
As required by BCSC policy, Dr. Clancy completed writ-
ten evaluations of Mr. Preddie’s performance for each se-
(…continued)
Acme-Evans Co., 51 F.3d 64, 67–68 (7th Cir. 1995) (“Where deposition and
affidavit are in conflict, the affidavit is to be disregarded … .”). Mr.
Preddie does not contest the district court’s ruling, and, therefore, we,
like the district court, limit our consideration of Mr. Preddie’s affidavit to
those statements that do not conflict with his deposition testimony.
2 See R.30-5 (“BCSC doesn’t want to lose you!”).
4 No. 14-3125
mester of the 2010–2011 school year. In the first-semester re-
port, Dr. Clancy assessed Mr. Preddie as “Effective” in the
areas of “Planning and Presenting Organized Instruction,”
“Assessment,” and “Professional Responsibilities,” and as
“Needs Improvement” in the areas of “Classroom Manage-
ment” and “Motivation.”3
Of specific concern to Dr. Clancy was Mr. Preddie’s fail-
ure to leave organized and developed lesson plans for sub-
stitute teachers. Dr. Clancy discussed this concern with Mr.
Preddie in early November 2010, after Mr. Preddie’s return
from a two-day absence. Mr. Preddie’s son, Elliot, had been
admitted to Riley Hospital, necessitating Mr. Preddie’s ab-
sence from school. According to Mr. Preddie, Dr. Clancy
told him during this discussion that he could not keep tak-
ing time off to care for his son; Dr. Clancy stated: “‘You’ve
missed a lot of school for yourself. You can’t take off. Is there
anybody that can go pick up your son or anybody that can
take care of your son, ‘cause you’ve already missed enough
days for yourself?’”4
Immediately following this meeting, Mr. Preddie sent
Dr. Clancy an email that elaborated on his son’s condition:
As with Elliot, I think that we have a good plan
moving forward. Thank you for working with
3 R.30-14 at 2. “Effective” and “Needs Improvement” were the only two
ratings on the BCSC’s evaluation form. Id. The categories on the evalua-
tion form also included “Human Relations and Communication.” Id.This evaluation area, however, was not filled out on Mr. Preddie’s first-
semester evaluation.
4 R.50-2 at 5 (Preddie Dep. 36); see also id. at 7 (Preddie Dep. 40).
No. 14-3125 5
me to make sure that if I have to be gone, my
students don’t have to suffer. One thing that I
am not sure of is if you understand the disease
my son suffers from. I know that sickle cell is a
disease that mainly affects African Americans
and it is something that you don’t see in Co-
lumbus often. Sickle Cell is deadly, and causes
my son great pain, so severe that he received
morphine around the clock while at Riley all
weekend.
I think that if I would compare the sensitivity
of his illness to another illness it would be like
epilepsy, for which there is no cure and re-
quires the attention of medical personnel im-
mediately. If there was an employee that had a
child with epilepsy, I’m not sure they would be
expected to come in and wait for a sub while
the child recovers from a seizure, especially
when it’s something that happened without
warning, early in the morning. The sooner we
catch it, the least amount of time we have to
spend in the hospital. I will do my best to make
the appropriate arrangements if I need to be
out and know in advance, but there may be a
time where he gets sick without warning and
we have to rush him up to the doctor. During
times like these I would like to know that I
have the support of the faculty and staff, and
6 No. 14-3125
not feel like I am being ostracized or punished
because my son was in the hospital.[5]
In response, Dr. Clancy sent an email which read, in part:
You are absolutely right; I know very little
about the Sickle Cell disease. I hope you will
continue to educate me, so I will know what is
fair for me to expect when Elliot is sick. I’m not
sure I agree with your comparison of Epilepsy
and Sickle Cell, but again, that may be due to
my lack of knowledge of the Sickle Cell dis-
ease.
Please let me know how I can help and support
you.[6]
During the 2010–2011 school year, Mr. Preddie recorded
twenty-three absences, five of which were for “Family Ill-
ness,” and seven of which were for “Sick Days.”7 Two of
Mr. Preddie’s sick days were the result of his admission to
the hospital in November 2010 due to a physical illness that
adversely affected his diabetes. Mr. Preddie also missed six
days from late February to early March 2011, after a hospital
admission for acute hypertension and kidney failure.8 The
BCSC recorded three of those absences as “Personal Day[s]”
and the other three as “Leave W/O Pay,” because Mr. Pred-
5 R.30-11 at 2.
6 R.30-12 at 2.
7 R.50-4.
8 R.50-2 at 3–4 (Preddie Dep. 21–22).
No. 14-3125 7
die already had exhausted his allotment of paid sick days.9
According to Mr. Preddie, when he missed work due to a
hospital stay, he “always” informed Dr. Clancy “exactly why
[he] was in the hospital.”10
When Mr. Preddie had used all of his paid leave,
Dr. Clancy advised him “that he could apply for additional
leave under the Family Medical Leave Act,” but “that he
would need [to] make a written application for that leave.”11
She also supplied Mr. Preddie with the name of “the person
within the school corporation he would need to speak with
regarding that application.”12 Despite his repeated absences,
Mr. Preddie never specifically requested time off under the
FMLA.13
Shortly before his second-semester review, Dr. Clancy
again spoke with Mr. Preddie concerning his absences due
to Elliot’s condition. Mr. Preddie testified that Dr. Clancy
told him that “sickle cell wasn’t a serious enough disease”
and that he could not take any more time off for his son be-
cause it was affecting his classroom.14 Following this discus-
sion, Mr. Preddie did not have any additional absences. In-
deed, Mr. Preddie testified that “[t]he last time [Elliot] got
sick[] that school year, I called my wife” to come down from
9 R.50-4 at 2–3.
10 R.30-1 at 11 (Preddie Dep. 65).
11 R.30-9 at 9.
12 Id.
13 See R.30-1 at 3 (Preddie Dep. 26).
14 R.50-2 at 5 (Preddie Dep. 36).
8 No. 14-3125
Indianapolis to pick Elliot up because Mr. Preddie believed
that “there w[ould] be repercussions” for any additional ab-
sences.15
Dr. Clancy gave Mr. Preddie his second-semester per-
formance report in mid-March 2011. In contrast to his first-
semester performance report, Dr. Clancy assessed
Mr. Preddie as “Need[ing] Improvement” in all evaluation
categories for the second semester.16 Dr. Clancy also recom-
mended that Mr. Preddie’s contract not be renewed for the
2011–2012 school year.
Shortly thereafter, the BCSC school board voted not to
renew Mr. Preddie’s contract. The board gave the following
reasons for its decision:
1. Poor classroom management
2. No lesson plans or lesson plans that were
difficult to follow. His partner teacher had
to copy his plans for the sub.
3. Inappropriate methods of disciplining stu-
dents.
4. Repeated parent, student, and staff com-
plaints about chaos, lack of fairness in dis-
ciplining students, one staff member re-
ported Mr. Preddie was observed bullying
another student.
5. Does not work well with colleagues
6. Attendance is affecting student progress
7. Asked more than once for extra work so
15 R.30-1 at 6 (Preddie Dep. 46).
16 R.30-16.
No. 14-3125 9
students could improve grades, but work
was never provided
8. Lack of student engagement and inter-
est[.17]
B. District Court Proceedings
On June 6, 2012, Mr. Preddie filed a complaint against the
BCSC alleging that: (1) the BCSC unlawfully discriminated
against him on the basis of race in violation of Title VII,
and/or retaliated against him for asserting rights under Title
VII; (2) the BCSC failed to accommodate his disability under
the ADA; (3) the BCSC failed to provide him with leave to
which he was entitled under the FMLA; (4) the BCSC dis-
criminated against him due to his race in violation of the
Civil Rights Act of 1866, as amended (codified at 42 U.S.C.
§ 1981 et seq.), the Civil Rights Act of 1871, as amended (codi-
fied at 42 U.S.C. § 1983 and/or 1986 et seq.), and the Civil
Rights Act of 1991, as amended (codified at 42
U.S.C. § 1981(a) et seq.); and (5) the BCSC unlawfully retaliat-
ed against him for his opposition to unlawful practices
and/or the exercise of his rights under the Civil Rights Acts
of 1866 and 1871, Title VII, the ADA, and/or the FMLA. Mr.
Preddie filed his complaint in the Bartholomew Superior
Court; the BCSC removed the case to the United States Dis-
trict Court for the Southern District of Indiana.
The district court set a dispositive motion deadline for
August 18, 2013. On August 19, the BCSC filed a motion for
an extension of time; the title of the motion requested an ex-
17 R.50-9 at 2.
10 No. 14-3125
tension of time for both discovery and dispositive motions,
but the text of the motion did not address the dispositive
motion deadline. In response, the district court extended the
deadline for discovery until September 18, 2013, but stated
in its order that its extension of the discovery deadline did
not affect the deadline for dispositive motions (which re-
mained August 18, 2013).
On September 18, 2013, the BCSC filed a motion for
summary judgment on all of Mr. Preddie’s claims.18 On Sep-
tember 30, the district court issued an order to show cause
asking the BCSC to explain the late filing of its summary
judgment motion. The BCSC subsequently filed a motion for
leave to file a belated motion for summary judgment. On Oc-
tober 15, the district court granted the BCSC’s request to file
a belated motion for summary judgment; the district court
found that the BCSC mistakenly believed that the deadline
for dispositive motions had been extended to September 18,
2013, and that the belated motion for summary judgment
was filed in good faith.
On August 27, 2014, the district court granted summary
judgment in favor of the BCSC on all of Mr. Preddie’s claims.
Mr. Preddie appealed the district court’s grant of summary
judgment, as well as the court’s decision to allow the BCSC
to file a belated motion for summary judgment.
18Although the BCSC moved for summary judgment on all claims, it
made no argument in its brief concerning Mr. Preddie’s claim under 42
U.S.C. § 1986. See infra Part II.D.
No. 14-3125 11
II
DISCUSSION
We review the district court’s rulings on summary judg-
ment de novo. Carter v. Chi. State Univ., 778 F.3d 651, 657 (7th
Cir. 2015). Summary judgment is appropriate when, constru-
ing the record in the light most favorable to the nonmovant,
we conclude that no reasonable jury could rule in favor of
the nonmoving party. Miller v. Gonzalez, 761 F.3d 822, 827
(7th Cir. 2014).
A. Mr. Preddie’s ADA claims
Mr. Preddie makes two distinct claims under the ADA:
(1) that the BCSC violated his rights under the ADA by fail-
ing to provide a reasonable accommodation for his disabil-
ity, and (2) that the BCSC unlawfully retaliated against him
because of his disability by declining to renew his teaching
contract for the 2011–2012 school year. Mr. Preddie argues
that we should reverse the district court’s grant of summary
judgment in favor of the BCSC on these claims. We disagree.
1. Failure to accommodate claim
In order to establish a claim for failure to accommodate
under the ADA, Mr. Preddie must establish that: (1) he is a
qualified individual with a disability; (2) the BCSC was
aware of his disability; and (3) the BCSC failed to reasonably
accommodate that disability. Kotwica v. Rose Packing Co., 637
F.3d 744, 747–48 (7th Cir. 2011). The ADA defines a “quali-
fied individual” as “an individual who, with or without rea-
sonable accommodation, can perform the essential functions
12 No. 14-3125
of the employment position that such individual holds or
desires.” 42 U.S.C. § 12111(8).
In our view, Mr. Preddie’s failure to accommodate claim
cannot succeed for two reasons: (1) Mr. Preddie never re-
quested an accommodation; and (2) Mr. Preddie does not
meet the definition of a qualified individual with a disability
under the ADA. First, we note that a plaintiff typically must
request an accommodation for his disability in order to claim
that he was improperly denied an accommodation under the
ADA. See Fleishman v. Cont’l Cas. Co., 698 F.3d 598, 608 (7th
Cir. 2012) (“[T]he standard rule is that a plaintiff must nor-
mally request an accommodation before liability under the
ADA attaches … .”) (quoting Jovanovic v. In-Sink-Erator Div.
of Emerson Elec. Co., 201 F.3d 894, 899 (7th Cir. 2000)). Alt-
hough it is fair to assume that the BCSC was aware of Mr.
Preddie’s diabetic condition, there is no evidence to suggest
that Mr. Preddie ever requested an accommodation for this
condition, other than intermittently requesting days off
throughout the school year. Without such a request, we con-
clude that Mr. Preddie’s failure to accommodate claim under
the ADA does not survive summary judgment.
Additionally, Mr. Preddie does not meet the definition of
a qualified individual with a disability under the ADA.19 The
Code of Federal Regulations defines a reasonable accommo-
dation under the ADA as “[m]odifications or adjustments to
the work environment, or to the manner or circumstances
under which the position held or desired is customarily per-
19For the purposes of this analysis, we assume without deciding that
Mr. Preddie’s health condition qualifies as a “disability” under the ADA.
No. 14-3125 13
formed, that enable an individual with a disability who is
qualified to perform the essential functions of that position.” 29
C.F.R. § 1630.2(o)(1)(ii) (emphasis added). The ADA defines
a “qualified individual” with a disability as “an individual
who, with or without reasonable accommodation, can per-
form the essential functions of the employment position that
such individual holds or desires.” 42 U.S.C. § 12111(8). In
reviewing Mr. Preddie’s ADA claims, the district court held
that Mr. Preddie did not meet the definition of a qualified
individual with a disability because his unplanned and spo-
radic attendance prevented him from performing the essen-
tial functions of his teaching position. We have held in the
past that, in many instances, irregular attendance can pre-
vent an individual from performing the essential functions
of his or her job. See Jovanovic, 201 F.3d at 899–900 (holding
that twenty-four absences in twelve months made it impos-
sible for plaintiff to perform the essential functions of his job,
thereby disqualifying him from the right to a reasonable ac-
commodation under the ADA); Nowak v. St. Rita High Sch.,
142 F.3d 999, 1003 (7th Cir. 1998) (holding that “[a teacher]
who does not come to work cannot perform the essential
functions of his job”); see also Waggoner v. Olin Corp., 169 F.3d
481, 484 (7th Cir. 1999) (“[I]n most instances the ADA does
not protect persons who have erratic, unexplained absences,
even when those absences are a result of a disability.”).
Here, it is reasonable to conclude that Mr. Preddie’s
twenty-three absences prevented him from performing the
essential functions of his teaching position. Indeed, one of
the reasons listed for the non-renewal of his contract was
14 No. 14-3125
that his “[a]ttendance [was] affecting student progress.”20 As
such, we conclude that he is not a qualified individual with a
disability under the ADA, and thus that he was not entitled
to reasonable accommodation. This conclusion, combined
with the fact that Mr. Preddie never requested such an ac-
commodation in the first place, leads us to affirm the district
court’s grant of summary judgment to the BCSC on
Mr. Preddie’s ADA failure to accommodate claim.
2. Retaliation claim
Similarly, we affirm the district court’s summary judg-
ment ruling on Mr. Preddie’s ADA retaliation claim. On this
claim, Mr. Preddie argues that the BCSC unlawfully failed to
renew his teaching contract because he exercised his rights
under the ADA. Mr. Preddie can establish retaliation under
the ADA through either the direct or indirect method of
proof. Dickerson v. Bd. of Trs. of Cmty. Coll. Dist. No. 522, 657
F.3d 595, 601 (7th Cir. 2011). The direct method of proof for
an ADA retaliation claim requires Mr. Preddie to show that:
“(1) he engaged in statutorily protected activity; (2) he suf-
fered an adverse employment action; and (3) [there is] a
causal connection between the two.” Id. (citing Casna v. City
of Loves Park, 574 F.3d 420, 426 (7th Cir. 2009)). Under the in-
direct method, Mr. Preddie must demonstrate that (1) he
“engaged in statutorily protected activity”; (2) he “was per-
forming his job satisfactorily”; and (3) he “was singled out
for an adverse employment action that similarly situated
employees who did not engage in protected activity did not
20 R.50-9 at 2.
No. 14-3125 15
suffer.” Id. at 601–02 (citing Lloyd v. Swifty Transp., Inc., 552
F.3d 594, 601 (7th Cir. 2009)). Once Mr. Preddie has met this
initial burden, the burden shifts to the BCSC “to present a
non-invidious reason for the adverse employment action.”
Id. at 602. If the BCSC accomplishes this, then the burden
shifts back to Mr. Preddie to demonstrate that the BCSC’s
explanation of the adverse employment action was pretextu-
al. Id.Here, Mr. Preddie does not make plain which method of
proof he utilizes to make his ADA retaliation claim. Never-
theless, we conclude that Mr. Preddie’s claim fails under ei-
ther method. An element of both the indirect and direct
methods of proof is that Mr. Preddie must have engaged in a
statutorily protected activity—in other words, he must have
asserted his rights under the ADA by either seeking an ac-
commodation or raising a claim of discrimination due to his
disability. See, e.g., id. at 602 (where the protected activity at
issue was “complaining about discriminatory acts and filing
a discrimination charge”); Mobley v. Allstate Ins. Co., 531 F.3d
539, 549 (7th Cir. 2008) (where protected activity was plain-
tiff’s “requests for accommodations”). Our previous conclu-
sion that the record does not reveal a request for accommo-
dation, therefore, effectively dooms Mr. Preddie’s retaliation
claim. His periodic requests for his own health-related leave,
which account for roughly one-third of his absences, without
more, does not qualify as “protected activity” under the
ADA. Thus, Mr. Preddie’s claim fails under both the indirect
and direct methods of proof, and we affirm the district
court’s judgment in favor of the BCSC on Mr. Preddie’s
ADA retaliation claim.
16 No. 14-3125
B. Mr. Preddie’s Title VII and Section 1981 claims
In addition to his claims under the ADA, Mr. Preddie ar-
gues that the BCSC unlawfully discriminated against him
because of his race. Title VII makes it unlawful for an em-
ployer “to fail or refuse to hire or to discharge any individu-
al, or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges
of employment, because of such individual’s race, color, re-
ligion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). It is
also unlawful for any individual—including an employer—
to discriminate on the basis of race in the creation and en-
forcement of contracts. See 42 U.S.C § 1981. Plaintiffs may
prove discrimination under Title VII and Section 1981 either
directly or indirectly.21
Under the direct method, a plaintiff must show that his
employer made an adverse employment decision “on an
impermissible discriminatory basis.” Andrews v. CBOCS W.,
Inc., 743 F.3d 230, 234 (7th Cir. 2014). Here, Mr. Preddie of-
fers no direct evidence that he was fired because of his race,
and therefore must rely on the indirect method of proving
racial discrimination. Under the indirect method of proof, a
plaintiff meets his initial burden by showing that: (1) he is a
member of a protected class; (2) he was meeting his employ-
er’s legitimate expectations; (3) he was subject to an adverse
employment action; and (4) similarly situated employees
21The elements of proof under both Title VII and Section 1981 are “es-
sentially identical,” therefore we need not analyze them separately.
Brown v. Advocate S. Suburban Hosp., 700 F.3d 1101, 1104 n.1 (7th Cir.
2012) (quoting Montgomery v. Am. Airlines, Inc., 626 F.3d 382, 389 (7th Cir.
2010)).
No. 14-3125 17
who were not members of the protected class were treated
more favorably. Id. (citing Ptasznik v. St. Joseph Hosp., 464
F.3d 691, 696 (7th Cir. 2006)). If a plaintiff establishes a prima
facie case of discrimination, only then must the employer
“articulate a legitimate, nondiscriminatory reason for the
adverse employment action, at which point the burden shifts
back to the plaintiff to submit evidence that the employer’s
explanation is pretextual.” Id. Here, Mr. Preddie cannot meet
his initial burden of proof on his Title VII and Section 1981
claims. Although it is true that Mr. Preddie, who is African-
American, was subject to an adverse employment action in
the non-renewal of his contract, Mr. Preddie does not suc-
ceed in proving that similarly situated employees were
treated differently, nor does he show that he was meeting
his employer’s legitimate expectations.
Mr. Preddie argues that a number of white teachers rou-
tinely were granted medical-related leave, whereas
Mr. Preddie’s teaching contract was not renewed precisely
because of his medical-related absences. Although Mr.
Preddie does not specify, we assume that his reference to
these other teachers is based on information contained in Dr.
DeClue’s deposition, in which Mr. Preddie’s counsel re-
counted various requests for leave taken by white BCSC el-
ementary school teachers from 2005–2013.22 It is not clear
from Dr. DeClue’s deposition, however, whether the com-
parator teachers had similar performance records to
Mr. Preddie. The record indicates that Mr. Preddie began
experiencing performance-related issues as early as Novem-
ber 2010 and that these performance concerns continued into
22 See R.50-3 at 11–12 (DeClue Dep. 41–49).
18 No. 14-3125
March 2011 when Dr. Clancy noted on Mr. Preddie’s second-
semester evaluation that he needed improvement in every
category. Mr. Preddie’s performance issues demonstrate not
only that his purported comparator group is insufficient to
bolster his racial discrimination claims, but also present a
separate ground on which his Title VII and Section 1981
claims fail: Mr. Preddie was not meeting his employer’s le-
gitimate expectations. For these reasons, we find that Mr.
Preddie has not established a prima facie case of discrimina-
tion under Title VII or Section 1981, and thus we affirm the
district court’s grant of summary judgment to the BCSC on
these claims.
C. Mr. Preddie’s FMLA claims
1. Interference
Mr. Preddie also raises claims of interference and retalia-
tion under the FMLA. Under the FMLA, it is “unlawful for
[an] employer to interfere with, restrain, or deny” an em-
ployee’s “exercise of or … attempt to exercise[] any right
provided under” the Act. 29 U.S.C. § 2615(a)(1). To prevail
on an FMLA-interference claim, a plaintiff must show that
(1) he was eligible for the FMLA’s protections,
(2) his employer was covered by the FMLA, (3)
he was entitled to leave under the FMLA, (4)
he provided sufficient notice of his intent to
take leave, and (5) his employer denied [or in-
terfered with] … FMLA benefits to which he
was entitled.
No. 14-3125 19
Cracco v. Vitran Exp., Inc., 559 F.3d 625, 635–36 (7th Cir. 2009)
(internal quotation marks omitted); accord Pagel v. TIN Inc.,
695 F.3d 622, 627 (7th Cir. 2012).
Two of these elements require closer examination on our
part. We turn first to the notice requirement. We have ob-
served that “[t]he notice requirements of the FMLA are not
onerous. An employee need not expressly mention the
FMLA in his leave request or otherwise invoke any of its
provisions.” Burnett v. LFW Inc., 472 F.3d 471, 478 (7th Cir.
2006); accord 29 C.F.R. § 825.301(b) (“An employee … does
not need to expressly assert rights under the Act or even
mention the FMLA to meet his or her obligation to provide
notice … .”).23 “[I]t is sufficient notice if the employee pro-
vides the employer with enough information to put the em-
ployer on notice that FMLA-qualifying leave is needed.”
Horwitz v. Bd. of Educ. of Avoca Sch. Dist. No. 37, 260 F.3d 602,
616 (7th Cir. 2001) (internal quotation marks omitted); accord
29 C.F.R. § 825.301(b).24 Where “the need for leave concerns
a family member rather than the employee [him]self, the
employee should also indicate that leave is sought to care for
that person.” Nicholson v. Pulte Homes Corp., 690 F.3d 819, 826
(7th Cir. 2012) (“If Nicholson provided sufficient notice that
23 See also Price v. City of Fort Wayne, 117 F.3d 1022, 1026 (7th Cir. 1997)
(“The FMLA does not require that an employee give notice of a desire to
invoke the FMLA.”).
24 See also Aubuchon v. Knauf Fiberglass, GmbH, 359 F.3d 950, 953 (7th Cir.
2004) (“[T]he employee’s duty is merely to place the employer on notice
of a probable basis for FMLA leave.”); Byrne v. Avon Prods., Inc., 328 F.3d
379, 382 (7th Cir. 2003) (“It is enough under the FMLA if the employer
knows of the employee’s need for leave … .”).
20 No. 14-3125
she needed time off to care for her seriously ill parents, then
Pulte had a duty to inquire further to confirm Nicholson’s
FMLA entitlement.”).
Given this guidance, we must conclude that the evidence
shows that, no later than November 2010, Mr. Preddie had
placed the BCSC on notice of his need for leave for his son’s
sickle cell anemia. On October 31, 2010, Mr. Preddie notified
Dr. Clancy, via email, that he was taking leave to care for his
son who had just been hospitalized.25 During the conversa-
tion, which occurred on the day of Mr. Preddie’s return,26
“the subject of [his] son’s sickle cell anemia came up and was
discussed.”27 According to Mr. Preddie, Dr. Clancy told him
that he could not “‘keep taking off time for [his] son’” and
that he needed to find “‘someone else [to] go pick him up’”
when he gets sick.28 Mr. Preddie followed up on this conver-
sation with an email that informed Dr. Clancy of both the
25 See R.30-10 at 2.
26 Although Mr. Preddie could not recall the date of this conversation
during his deposition, the evidence indicates that it occurred on Novem-
ber 3, 2010, the day he returned to work. See R.30-9 at 2 (Clancy affidavit
describing conversation with Mr. Preddie on November 3, 2010); see also
R.30-11 at 2 (email from Mr. Preddie to Dr. Clancy, dated November 3,
2010, referencing a conversation that occurred earlier that day concern-
ing Mr. Preddie’s recent absences to care for his son); R.50-4 at 1–2 (Em-
ployee Absence Report showing that Mr. Preddie was absent on No-
vember 1 and 2, 2010).
27 R.30-9 at 2.
28 R.50-2 at 7 (Preddie Dep. 40); see also id. at 5 (Preddie Dep. 36).
No. 14-3125 21
seriousness of his son’s condition and the treatment it re-
quired.29
The same is true for Mr. Preddie’s absences related to his
diabetes. In November 2010, Mr. Preddie’s wife emailed
Dr. Clancy to inform her that Mr. Preddie had been hospital-
ized for an illness that was “affecting his diabetes in a bad
way.”30 Dr. Clancy thanked Mr. Preddie’s wife for keeping
her informed and wished Mr. Preddie “a speedy recovery.”31
The record, therefore, shows that Dr. Clancy was on notice
of the FMLA-qualifying reasons for Mr. Preddie’s absences.32
29 See R.30-11 at 2.
30 R.30-13 at 2.
31 Id.
32 The BCSC maintains that
[t]he fact that [it] may have known the reasons behind
Mr. Preddie’s absence from work does not satisfy
Mr. Preddie’s burden of showing that he provided sufficient
notice of his intent to take leave under the FMLA where the
undisputed evidence is that BCSC specifically advised him
of the availability of FMLA leave and the name of the person
that he needed to see to get an application for such leave and
where Mr. Preddie failed to request such leave with full
knowledge of the availability of that leave.
Appellee’s Br. 13–14. We do not believe that the BCSC’s argument finds
support in the governing regulation, which makes clear that an employ-
ee needs to provide “verbal notice sufficient to make the employer aware
that the employee needs FMLA-qualifying leave.” 29 C.F.R. § 825.302(c).
The burden is then on the employer to “inquire further of the employee if
it is necessary to have more information about whether FMLA leave is
being sought by the employee[] and obtain the necessary details of the
leave to be taken.” Id.(continued…)
22 No. 14-3125
The “interference” element of Mr. Preddie’s claim also
requires some elaboration. The implementing regulations
make clear that the ways in which an employer may inter-
fere with FMLA benefits are not limited simply to the denial
of leave. Interference also encompasses “us[ing] the taking of
FMLA leave as a negative factor in employment actions”
and “discouraging an employee from using such leave.” 29
C.F.R. § 825.220(c),(b); see also Pagel, 695 F.3d at 631.
Here, there is evidence from which a jury could conclude
that the BCSC “interfere[d]” with Mr. Preddie’s rights by
“us[ing] the taking of FMLA leave as a negative factor in
employment actions.” 29 C.F.R. § 825.220(c). One of the stat-
ed reasons for the non-renewal of Mr. Preddie’s contract was
his absences—almost all of which appear to be related to
FMLA-qualifying conditions. Additionally, other reasons
given for his dismissal are tied logically and practically to
those absences.33
The record also contains evidence—namely Mr. Preddie’s
two conversations with Dr. Clancy concerning his son’s sick-
le cell anemia—from which a jury could conclude that the
BCSC discouraged Mr. Preddie from incurring additional
absences related to FMLA-qualifying conditions. In the first
(…continued)
The regulations do allow an employer to “require an employee to
comply with the employer’s usual and customary notice and procedural
requirements for requesting leave.” Id. § 825.302(d). The BCSC, however,
does not maintain that Mr. Preddie failed to comply with a notice re-
quirement generally applicable to all leave.
33See R.50-9 at 2 (listing poor lesson plans for substitutes among the rea-
sons for the non-renewal of his contract).
No. 14-3125 23
conversation, Dr. Clancy stated: “You’ve missed a lot of
school for yourself. You can’t take off. Is there anybody that
can go pick up your son or anybody that can take care of
your son … ?”34 According to Mr. Preddie, in the second
conversation, Dr. Clancy “said I can’t miss time … for my
son and that it’s … affecting my classroom and I can’t miss
any more time to take off for my son.”35 We believe a jury
reasonably could find that Dr. Clancy’s discussions with
Mr. Preddie were meant to convey the message that, if he
missed additional time related to his son’s condition, there
would be adverse consequences.
There also is evidence in the record that Dr. Clancy’s
comments did have an effect on Mr. Preddie’s decisions re-
garding leave. Mr. Preddie testified that “[t]he last time [El-
liot] got sick,” he called his wife to take care of his son be-
cause Mr. Preddie was afraid that “if I took off again … there
would be repercussions.”36 Additionally, following
Mr. Preddie’s March conversation with Dr. Clancy, he did
not miss any additional days related to his or Elliot’s condi-
tions. Based on this evidence, a jury could conclude that
Mr. Preddie made the conscious decision not to take addi-
34 R.50-2 at 5 (Preddie Dep. 36) (emphasis added).
35 Id. at 9 (Preddie Dep. 42). Dr. Clancy did not make overt threats that
additional absences would result in discipline or non-renewal of Mr.
Preddie’s contract; that, however, is not determinative. Rather, the criti-
cal question is whether the employer’s actions would discourage a rea-
sonable employee from taking FMLA leave. Cf. Cole v. Illinois, 562 F.3d
812, 816 (7th Cir. 2009) (applying reasonable person standard in FMLA
retaliation claim).
36 R.30-1 at 6 (Preddie Dep. 46).
24 No. 14-3125
tional leave based on Dr. Clancy’s implicit threats of adverse
action.
We acknowledge that there is evidence in the record
from which a jury could reach the contrary conclusion. At
the summary judgment stage, however, “[i]t is not our role
to evaluate the weight of the evidence, to judge the credibil-
ity of witnesses or to determine the ultimate truth of the
matter, but simply to determine whether there exists a genu-
ine issue of triable fact.” South v. Illinois Envtl. Prot. Agency,
495 F.3d 747, 751 (7th Cir. 2007). Consequently, we must re-
verse the district court’s judgment in favor of the BCSC on
Mr. Preddie’s FMLA-interference claim.
2. Retaliation
The FMLA also makes it “unlawful for any employer to
discharge or in any other manner discriminate against any
individual for opposing any practice made unlawful by” the
FMLA. 29 U.S.C. § 2615(a)(2). “To survive a motion for
summary judgment on h[is] claim of retaliation under the
FMLA, [Mr. Preddie] had to submit evidence showing that
[the BCSC] demoted or fired h[im] because []he took valid
leave.” Lucas v. Pyramax Bank, FSB, 539 F.3d 661, 667 (7th Cir.
2008). Applying this standard, Mr. Preddie has raised a gen-
uine issue of material fact that he suffered retaliation under
the FMLA. Specifically, he has offered evidence that he was
terminated, at least in part, based on his record of absences,37
and that the BCSC knew that many of those absences were
37 See R.50-9 at 2.
No. 14-3125 25
attributable to his diabetes and to his son’s sickle cell ane-
mia.38 Under these circumstances, a reasonable jury could
conclude that Mr. Preddie was terminated because he took
leave for FMLA-qualifying conditions, and we must reverse
the district court’s summary judgment in the BCSC’s favor.
We emphasize that, in reaching this conclusion, we have
construed the facts in the light most favorable to Mr. Pred-
die, as we must. We express no opinion as to the ultimate
merits of Mr. Preddie’s FMLA claims. We only conclude that
he has raised a triable issue as to these claims.
D. Mr. Preddie’s Section 1986 claim
In the district court’s summary judgment opinion, the
court stated in a footnote, “Mr. Preddie’s Complaint also
mentions 42 U.S.C. § 1986; however, neither party addressed
this statute in their briefing. Therefore, the Court finds that
this claim has been abandoned and waived.” Preddie v. Bar-
tholomew Cnty. Consol. Sch. Corp., 44 F. Supp. 3d 800, 804 n.1
(S.D. Ind. 2014). Mr. Preddie challenges this ruling on ap-
peal, arguing that because the BCSC did not address his Sec-
tion 1986 claim in its motion for summary judgment, he was
not required to present any evidence relating to this claim in
response to the BCSC’s motion. Thus, he argues, the district
court improperly treated his Section 1986 claim as aban-
doned.
Mr. Preddie’s complaint states the following:
38 See, e.g., R.30-1 at 11 (Preddie Dep. 65); R.30-10 at 2; R.50-2 at 5, 9
(Preddie Dep. 36, 42).
26 No. 14-3125
This instant action is brought pursuant to Title
VII of the Civil Rights Act of 1964, as amended,
codified at 42 U.S.C. § 2000e et seq., The Family
Medical Leave Act (“FMLA”) of 1993 as
amended, codified at 29 U.S.C. § 2601 et seq[.];
The Americans With Disabilities Act (“ADA”),
as amended codified at 42 U.S.C. § 12101 et seq.,
the Civil Rights Act of 1866, as amended, codi-
fied at 42 U.S.C. § 1981 et seq[.], the Civil Rights
Act of 1871, as amended, codified at 42 U.S.C.
§ 1983 and/or 1986 et seq[.], and the Civil Rights
Act of 1991, as amended, codified at 42 U.S.C.
§ 1981(a), et seq.[39]
This is the only mention of Mr. Preddie’s Section 1986 claim
in his complaint, although he does later reference his claim
under the Civil Rights Act of 1871.
Mr. Preddie is correct that the BCSC’s motion for sum-
mary judgment does not address specifically his Section 1986
claim. Mr. Preddie’s response to the BCSC’s motion similarly
makes no reference to Section 1986, although no such refer-
ence was required of Mr. Preddie. The district court’s charac-
terization of Mr. Preddie’s Section 1986 claim as “aban-
doned” suggests that the onus was on Mr. Preddie to remind
the court, and the BCSC, of his claim under Section 1986 af-
ter the BCSC failed to mention it in its motion for summary
judgment. Preddie, 44 F. Supp. 3d at 804 n.1. This is incorrect.
See Sublett v. John Wiley & Sons, Inc., 463 F.3d 731, 736 (7th
Cir. 2006) (“As a general matter, if the moving party does
39 R.1-1 at 1–2.
No. 14-3125 27
not raise an issue in support of its motion for summary
judgment, the nonmoving party is not required to present
evidence on that point, and the district court should not rely
on that ground in its decision.”).
Nevertheless, our conclusions on Mr. Preddie’s discrimi-
nation claims necessarily prove fatal to any claim he at-
tempted to make under Section 1986. Section 1986 of Title 42
states:
Every person who, having knowledge that any
of the wrongs conspired to be done, and men-
tioned in section 1985 of this title, are about to
be committed, and having power to prevent or
aid in preventing the commission of the same,
neglects or refuses so to do, if such wrongful
act be committed, shall be liable to the party in-
jured, or his legal representatives, for all dam-
ages caused by such wrongful act, which such
person by reasonable diligence could have
prevented … .
We find it difficult to see how this cause of action fits the
facts of Mr. Preddie’s case. Section 1985, which is referenced
in the above excerpt, makes it unlawful to commit certain
acts, such as conspiring to deprive a person or class of per-
sons of the equal protection of the laws. 42 U.S.C. § 1985(3).
Based on this reference, and the fact that Mr. Preddie’s refer-
ence to Section 1986 was listed among his other civil rights
claims, we suppose that Mr. Preddie could be arguing that
the BCSC neglected to prevent individuals from discriminat-
ing against Mr. Preddie on the basis of his race (although
this is a generous reading of such an underdeveloped argu-
ment). To the extent that this is the argument Mr. Preddie
28 No. 14-3125
sought to make, the district court more than addressed the
issue when it ruled on Mr. Preddie’s racial discrimination
claims pursuant to Title VII, Section 1981, and Section 1983.
In short, because the district court correctly found that the
BCSC did not discriminate against Mr. Preddie based on his
race, it would have been impossible to find that the BCSC
neglected to prevent such discrimination in violation of Sec-
tion 1986. Thus, affirming the district court’s dismissal of
this claim is proper. See Estate of Davis v. Wells Fargo Bank,
633 F.3d 529, 538–39 (7th Cir. 2011) (holding that the district
court’s improper dismissal of a claim on a motion to dismiss
was harmless when the claim had identical elements to an-
other claim which was properly dismissed on summary
judgment).
E. BCSC’s belated filing of its summary judgment motion
Finally, Mr. Preddie argues that the district court com-
mitted reversible error when it allowed the BCSC to file a
belated motion for summary judgment. We review the dis-
trict court’s grant of the BCSC’s request to file this motion
for abuse of discretion. Cf. Johnson v. Gudmundsson, 35 F.3d
1104, 1111 (7th Cir. 1994) (noting that a district court was
“well within the bounds of [its] discretion in denying [a par-
ty’s] belated motion for leave to file … a memorandum in
opposition to … summary judgment”). In this case, we con-
clude that the district court did not abuse its discretion.
When the BCSC filed its summary judgment motion one
month after the deadline for dispositive motions, the district
court issued an order to show cause why the late motion
should not be stricken. After reviewing the BCSC’s response
No. 14-3125 29
to this order, as well as the BCSC’s own motion for leave to
file a belated summary judgment motion, the district court
granted the motion, concluding:
The Court accepts that Counsel for the De-
fendant mistakenly believed that the disposi-
tive motion deadline was September 18, 2013,
rather than the original dispositive motion
deadline of August 18, 2013. The Court finds
that although the motion for summary judg-
ment was filed late, it was filed in good faith,
was not intentionally filed in violation of the
dispositive motion deadline and the late filing
constitutes excusable neglect.[40]
We do not see where the district court abused its discretion
in ultimately considering the late motion. Rather than over-
looking the fact that the BCSC filed a late motion, the district
court quickly recognized the motion’s tardiness and issued
an order to show cause. Once cause for the late filing was
shown to be an honest misunderstanding of the deadline for
dispositive motions, the court allowed the late filing to
stand. Thus, we affirm the district court’s ruling.
Conclusion
For the foregoing reasons, we affirm the judgment of the
district court with the exception of its judgment for the
BCSC on Mr. Preddie’s FMLA claims. With respect to those
claims, we reverse the judgment of the district court and re-
40 R.42 at 1.
30 No. 14-3125
mand for further proceedings consistent with this opinion.
The parties shall bear their own costs in this appeal.
AFFIRMED in part; REVERSED and REMANDED in part