Appeal from the United States District Court for the Southern District of Illinois. No. 05 C 776-William D. Stiehl, Judge.
The opinion of the court was delivered by: Ripple, Circuit Judge.
Before BAUER, RIPPLE and WILLIAMS, Circuit Judges.
Debra Lewis brought this action against: her employer, Freeburg Community School District No. 70; the school superintendent, Rob Hawkins; the school district's attorney, Shane Jones; the school board; and members of the school board in their individual capacities.*fn1 She alleged violations of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq.; she also brought supplemental state claims for breach of contract, defamation and intentional infliction of emotional distress. The district court granted summary judgment on all counts in favor of the defendants. Ms. Lewis timely appealed. For the reasons set forth in this opinion, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
Because this case is here on a grant of summary judgment for the defendants, we must review the facts in the light most favorable to the plaintiff. Squibb v. Mem. Med. Ctr., 497 F.3d 775, 780 (7th Cir. 2007).
Freeburg Community School District No. 70 ("the District") is a public school system located in St. Clair County, Illinois. The District is governed by a seven-member Board of Education ("school board"). In March 2005, its members included defendants John Blomenkamp, Tammy Carpenter, Steve Lindauer, Herschel Parrish, Dean Salvatore, Scott Weber and Richard Trolard.*fn2 Dr. Rob Hawkins is the superintendent of the school district, and he is responsible for overseeing the functions and performance of all the District's employees. Dr. Hawkins makes recommendations to the school board regarding the selection and dismissal of employees; however, all final employment decisions are within the province of the school board.
Ms. Lewis began working for the District as a bookkeeper and treasurer in September 1997. She was responsible for: maintaining all financial accounts and records; preparing payroll, tax returns and other required state financial reports; paying bills monthly; preparing monthly cafeteria reports and financial reports; and otherwise assisting the superintendent. All parties agree that Ms. Lewis performed her job admirably until 2004.
The year 2004, however, was a truly terrible year for Ms. Lewis. Both of her parents became terminally ill, and Ms. Lewis attempted to care for them at home. Her father died at home on May 23, 2004, and in a tragic sequence of events, five other family members or close friends passed away that year. On May 31, 2004, her mother came home from the hospital and needed constant care. Ms. Lewis thereafter often missed work to care for her mother at home. Dr. Hawkins, her immediate supervisor, was aware that Ms. Lewis was taking time off from work in order to care for her ailing parents, and he gave her permission to do so. In the 2004 fiscal year,*fn3 Ms. Lewis was absent a total of 72.5 out of a possible 242 workdays.
During this time, with the encouragement of Dr. Hawkins, Ms. Lewis took much of her bookkeeping work home with her and worked whenever she could, including in the evenings or on weekends. She was able to get much of the bookkeeping work done that way. According to Dr. Hawkins, however, her "flex-time" schedule began to be a problem for the school district because other employees were forced to alter their schedules to cover for Ms. Lewis, and she was not available during regular work hours to answer questions from employees or vendors.
On June 28, 2004, the school board met in a closed session to discuss employee salaries. Although the meeting was closed to the public, it was tape recorded in compliance with the requirements of the Illinois Open Meetings Act, 5 ILCS 120/2.06(a). In the meeting, Dr. Hawkins proposed that Ms. Lewis be given a small raise, but he also informed the board that she had been absent 47.5 days so far that year. He explained some of the hardships caused to the District by her absences: Ms. Lewis had failed to produce a cafeteria report for a number of months, and Dr. Hawkins had been forced to make a list of priorities and pay some of the District's bills himself. He also remarked that the office did not function as smoothly without Ms. Lewis there to help answer phones and dispose of mail, and he lamented that she was unavailable for vendor calls. At that time, a number of board members expressed the view that they ought to start looking for a new bookkeeper, but Dr. Hawkins dissuaded them.
That same day, however, Dr. Hawkins sent Ms. Lewis a letter advising her that she should resume a regular 8:00 a.m. to 4:00 p.m. work schedule by the start of the next school year. The letter identified the aspects of her job that required her attendance during normal business hours: assisting with covering the office during lunch breaks, assisting with answering the phone, being available for teachers, staff, and himself for information, and being available for vendors when they call with questions.
Nevertheless, in September 2004, Ms. Lewis missed 6 of 21 days of work; in October she missed 7 of 20. At the school board's October meeting, Dr. Hawkins again made mention of the inconveniences caused by Ms. Lewis' large number of absences; he also described a number of "performance" problems that he claimed were unrelated to her absences. Specifically, he noted that: the District's tax payments to the IRS had been late, resulting in a penalty (although Ms. Lewis ultimately had been able to get it waived); the District had been denied credit from Verizon due to a blemish on its credit check; the 2004 completion report had not been filed; a number of cafeteria reports had not been completed; other bills were not being paid timely; and Ms. Lewis had not compiled her own attendance report. He also mentioned that her office was a mess. At least one board member expressed the view that she should be fired for absenteeism and poor performance. Dr. Hawkins, however, informed the board that the District faced potential legal liability under the FMLA; accordingly, he suggested that Ms. Lewis be approached and offered official FMLA leave instead. The board gave its approval, and on November 9, 2004, Dr. Hawkins sent a letter to Ms. Lewis, informing her that her paid sick leave and vacation time had run out but that she was entitled to take up to 12 weeks of unpaid leave under the FMLA.
Ms. Lewis completed the necessary paperwork and, at the direction of Dr. Hawkins, subsequently began taking intermittent FMLA leave. Ms. Lewis and Dr. Hawkins established a procedure by which she would call the office whenever she needed to take leave and inform Dr. Hawkins that she was going to be absent that day. She simply was required to specify that her absence was for FMLA reasons, and her absence would then be "excused," though unpaid.
During the time that she was taking intermittent FMLA leave, however, Ms. Lewis still was asked to perform all of the functions of a bookkeeper. She was able, to some extent, to determine her own schedule, but she continued to do much of the District's bookkeeping work at her home and on weekends in order to ensure that necessary tasks were completed. She never was credited for her time spent working at home, however, and she was not paid for the days on which she took FMLA leave. The school board was well aware of this practice; in fact, Dr. Hawkins even commented to the board that Ms. Lewis actually was "helping the budget because she's, uh, already being docked because she's exhausted all of her sick days, she's been gone for all of her vacation days, her bereavement day and her personal day and she's 22 in the hole." R.76, Ex. 5 at 3. Despite the alleged difficulties caused by her absences, however, the District never sought any part-time help for the bookkeeper position during the period in which Ms. Lewis was taking intermittent leave.
Throughout 2004, the school board continued to discuss Ms. Lewis and the problems caused by her absences. On November 22, 2004, in another closed-session meeting, a number of board members expressed the opinion that they would like to fire Ms. Lewis; however, they were concerned about their potential legal liability under the FMLA. Dr. Hawkins confirmed their fears, stating that "we don't have anything, it's all too soft to do anything about her in terms of performance . . . . [I]f she didn't have the FMLA issue it would be easier for me to do something . . . ." Id. at 22. The board members responded by discussing the FMLA with disdain, noting that it was "just ludicrous," id. at 25, and "it's such a fiasco that you can't just say thank you for your services, goodbye," because of "FMLA and Bill Clinton." Id. at 29. Dr. Hawkins was encouraged to continue documenting any performance-related problems in order to build a case against Ms. Lewis that was unrelated to her absences. Id. at 25.
On March 10, 2005, Ms. Lewis received her first and only performance review from Dr. Hawkins. The review form contained three potential rankings: very good, satisfactory and needs improvement. Ms. Lewis received two rankings of "very good," seven rankings of "satisfactory" and four rankings of "needs improvement." R.67, Ex. JJ. The areas that needed improvement were: "works in a manner that promotes safety, cleanliness and efficiency"; "demonstrates pride in work by performing tasks neatly and accurately"; "shows punctuality and has excellent attendance"; and "demonstrates professionalism through appropriate dress, language, and interactions." Id. In the comments section adjacent to the "pride in work" category, Dr. Hawkins noted: "This was not a problem previously.
It has become an issue the past 6 mo[nths] with the reduced hour week. While I believe Mrs. Lewis still takes pride in her work, time constraints have caused problems." Id. Additionally, at the bottom of the form, he wrote:
Deb, Most of the items that are "satisfactory" or "needs improvement" are a direct result of your reduced hour schedule. As I have mentioned many times when we discuss this, I understand your commitment to taking care of your parents. I also understand you are doing what you can to prioritize so that crucial deadlines are not missed. Unfortunately, as I told you, you cannot continue as you are and be effective in all arenas. I understand your personal dilemma. I have tried to balance that with the needs of the district. Rob.
On March 21, 2005, the school board again met in a closed session and discussed Ms. Lewis. Although state law requires that closed sessions of school board meetings be tape recorded, the first fifty-six minutes of the eighty-one-minute session-coincidentally, the portion of the meeting in which Ms. Lewis was discussed-are missing from the meeting's recording. Two conflicting explanations for the missing segment of tape exist in the record: one note, signed by Dr. Hawkins, states that the machine had malfunctioned, and another (unsigned) note states that the operator had believed that the machine was running from the beginning of the session, but later had realized that it was not and began recording. The written minutes of the meeting reflect only that Dr. Hawkins recommended that Ms. Lewis be replaced ...