United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
M. ROWLAND United States Magistrate Judge
Davidson initiated this action against Evergreen Park
Community High School District 231 (District), alleging that
it denied him leave or use of leave as required by the Family
and Medical Leave Act (FMLA), 29 U.S.C. § 2917. Davidson
also alleges that Evergreen Park fired him because of his use
of FMLA leave. The parties have consented to the
jurisdiction of the United States Magistrate Judge, pursuant
to 28 U.S.C. § 636(c). The District has filed a Motion
for Summary Judgment. For the reasons set forth below, the
Motion is granted.
judgment is proper only if the “materials in the
record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials”
“shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a), (c)(1)(A); see
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The
Court views the evidence in the light most favorable to
Davidson, the nonmov-ing party, and draws all reasonable
inferences in his favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986); Popovits v. Circuit
City Stores, Inc., 185 F.3d 726, 731 (7th Cir. 1999). To
avoid summary judgment, Davidson, who bears the burden of
proof, cannot rely on the pleadings alone, but must
“set forth specific facts showing that there is a
genuine issue for trial.” Anderson, 477 U.S.
at 250 (citation omitted); see Celotex, 477 U.S. at
324 (Rule 56 “requires the nonmoving party to go beyond
the pleadings and by her own affidavits, or by the
depositions, answers to interrogatories, and admissions on
file, designate specific facts showing that there is a
genuine issue for trial.”) (citation omitted).
facts must be established through one of the vehicles
designed to ensure reliability and veracity-depositions,
answers to interrogatories, admissions and affidavits.”
Martz v. Union Labor Life Ins. Co., 757 F.2d 135,
138 (7th Cir. 1985). The Court may also consider properly
authenticated and admissible documents or exhib- its.
Woods v. City of Chicago, 234 F.3d 979, 988 (7th
Cir. 2000). “To be admissible, documents must be
authenticated by and attached to an affidavit that meets the
requirements of Rule 56(e) and the affiant must be a person
through whom the exhibits could be admitted into
evidence.” Article II Gun Shop, Inc. v.
Gonzales, 441 F.3d 492, 496 (7th Cir. 2006).
Local Rule 56.1
Rule 56.1(a)(3) requires the moving party to provide “a
statement of material facts as to which the moving party
contends there is no genuine issue and that entitle the
moving party to a judgment as a matter of law.” The
nonmoving party must then “admit or deny every factual
statement proffered by the moving party and [ ] concisely
designate any material facts that establish a genuine dispute
for trial.” Ricco v. Sw. Surgery Ctr., LLC, 73
F.Supp.3d 961, 965 (N.D. Ill. 2014) (citing LR. 56.1(b)(3)).
Pursuant to Local Rule 56.1(b)(3)(C), the nonmovant may
submit a statement “of any additional facts that
require the denial of summary judgment, including references
to the affidavits, parts of the record, and other supporting
materials relied upon.” “To the extent that a
response to a statement of material fact provides only
extraneous or argumentative information, this response will
not constitute a proper denial of the fact, and the fact is
admitted.” Ricco, 73 F.Supp.3d at 965.
“Similarly, to the extent that a statement of fact
contains a legal conclusion or otherwise unsupported
statement, including a fact that relies upon inadmissible
hearsay, such a fact is disregarded.” Id. at
965-66 (citing Eisenstadt v. Centel Corp., 113 F.3d
738, 742 (7th Cir. 1997) (“And hearsay is inadmissible
in summary judg- ment proceedings to the same extent that it
is inadmissible in a trial, except that affidavits and
depositions, which (especially affidavits) are not generally
admissible at trial, are admissible in summary judgment
proceedings to establish the truth of what is attested or
deposed, provided, of course, that the affiant's or
deponent's testimony would be admissible if he were
testifying live.”) (citations omitted)).
Rule 56.1 Statement of Undisputed Facts, the District
attached and referenced the Evaluation and Observation Binder
prepared by the District and provided to Davidson as part of
Davidson's Illinois State Board of Education Tenure
Teacher Dismissal Hearing (Evaluation Binder). (Dkt. 81, Ex.
D). Davidson objects to the admissibility of certain portions
of the Evaluation Binder as hearsay and lacking in
foundation. (Dkt. 100). Although the Evaluation Binder
appears to be a business record, which normally would be
admissible at trial under the hearsay exception set forth at
Fed.R.Evid. 803(6), the District has offered no affidavits or
any other evidence establishing its authenticity. See
Woods, 234 F.3d at 988 (“Normally, to demonstrate
such trustworthiness and reliability at the summary judgment
stage, the party seeking to offer the business record must
attach an affidavit sworn to by a person who would be
qualified to introduce the record as evidence at trial, for
example, a custodian or anyone qualified to speak from
personal knowledge that the documents were admissible
however, admitted to over 20 of the District's statements
of facts that referenced the Evaluation Binder. (Dkt. 100).
By admitting to these 20 statements of fact, Davidson
conceded the accuracy of the Evaluation Binder. While the
District should have submitted an affidavit to authenticate
the Evaluation Binder, the Court finds no point in delaying
the summary judgment ruling to require the filing of an
affidavit authenticating the Evaluation Binder when Davidson
has essentially conceded the accuracy of its contents.
See Cerqueira v. Cerqueira, 828 F.2d 863, 865 (1st
Cir. 1987) (“We believe that, technically speaking,
Antonio should have introduced his exhibits into the record
through affidavits, not as exhibits to a memorandum of law.
. . . We see no point in remanding this case to
permit Antonio to file an affidavit stating the very thing
that Ivo has conceded, namely, that the document is what it
purports to be.”);Woods, 234 F.3d at 989
(“By submitting the case report and relying on it,
Woods has conceded that Flores made out a complaint against
him to the Chicago Police. . . . Requiring authenticating
affidavits in this case would be an empty formality, and the
district court did not abuse its discretion when it
considered the documents without such
affidavits.”). Davidson's objections are overruled.
Davidson's Rule 56.1 Statement of Additional Facts, he
attached and referenced the transcripts from two closed
hearings by the District's Board of Education (Board).
(Dkt. 100, Exs. A (July 2014 Hr'g Tr.) & B (Mar. 2015
Hr'g Tr.)). The District objects to the transcripts as
lacking in foundation. (Dkt. 93 at 1). Davidson did not offer
any affidavits establishing the transcripts'
authenticity. However, both transcripts were prepared by a
certified court reporter, who swore to their accuracy. (Dkt.
100, Exs. A & B). And the District acknowledged that
Exhibit A “is the transcript of the audio recording of
the closed session Board of Education meeting from July 15,
2014” and that Exhibit B “is the transcript of
the audio recording of the closed session Board of Education
meeting from March 17, 2015.” (Dkt. 93 at 2 n.1 & 4
n.2). Like with the Evaluation Binder discussed above, the
Court declines to require an affidavit when the District has
acknowledged the transcripts' authenticity. Moreover, the
party opposing summary judgment “need not produce
evidence in a form that would be admissible at trial.”
IBP, Inc. v. Mercantile Bank of Topeka, 6 F.Supp.2d
1258, 1263 (D. Kan. 1998); see Celotex, 477 U.S. at
324 (“We do not mean that the nonmoving party must
produce evidence in a form that would be admissible at trial
in order to avoid summary judgment.”). Instead, the
“party asserting that a fact cannot be or is genuinely
disputed must support the assertion by [ ] citing to
particular parts of materials in the record, including
depositions, documents. . . or other materials.”
Fed.R.Civ.P. 56(c)(1)(A). The District's objections are
was hired by the District in August 1995 and was employed by
the District as a high school science teacher until the Board
of Education voted to terminate his employment on April 1,
2015. (¶¶ 5-7).
to the District's tenured teacher evaluation schedule,
Davidson was evaluated during the 2012-2013 school year.
(¶ 24 & Ex. D-14). The evaluation included formal
observations of Davidson's classroom by Dr. Elizabeth
Hart, the District Superintendent. (¶¶ 8, 25-27).
Her observations included students' classroom behavior
and mannerisms to assess whether they were learning.
(Pl's ¶ 20). Pursuant to the Illinois School Code,
105 ILCS 5/24A-5(b), part of the evaluation process included
Davidson's use of sick leave (Pl's ¶ 15). At the
conclusion of the evaluation, Davidson received a summative
rating of “Needs Improvement”, and he was placed
on a Professional Development Plan (PDP). (Def's
PDP, which began in May 2013 and continued until March 2014,
included multiple formal and informal observations of
Davidson's classroom. (¶¶ 30- 32). At the
conclusion of his PDP, Davidson received a summative
evaluation rating of “Unsatisfactory, ” and he
was placed on a 90-day remediation plan pursuant to the
Illinois School Code. (¶¶ 33, 35). Davidson was the
first teacher that Hart placed on a formal remediation plan.
(Pl's ¶ 19). In designing the remediation plan, Hart
consulted with the District's attorney and state
resources regarding how to satisfy due process requirements.
(Id.). Davidson's 90-day remediation plan began
in April 2014 and was scheduled to be completed by October
2014. (Def's ¶ 37 & Ex. D-28). At his mid-point
evaluation in June 2014, Davidson was rated
“Unsatisfactory” in six subcategories,
“Needs Improvement” in nine subcategories, and
“Proficient” in seven subcategories; he received
no “Excellent” ratings. (¶ 44). According to
Hart, she informed Davidson that if this would have been his
final evaluation, he would be terminated for unsatisfactory
performance. (July 2014 Hr'g Tr. 3).
April 2014, Hart noticed that Davidson had taken 15 sick or
personal days during the 2013-2014 school year, and that
since March 3, he had taken a day or part of a day off each
week. (¶¶ 38-39 & Ex. F). On May 1, Hart
informed Davidson that henceforth he would be required to
provide her with a medical certificate supporting any sick
leave request. (¶ 39 & Ex. F). After this
notification, Davidson did not take any more sick days during
the remainder of the 2013-2014 school year. (¶ 41).
Board's July 15, 2014 closed-session meeting, Hart
expressed frustration that Davidson had taken a large number
of sick days despite his unsatisfactory job performance
ratings. (Pl's ¶ 4 & July 2014 Hr'g Tr.
2-6). She told the Board members that Davidson “is not
a bad guy”; he “plans lessons . . . but he's
not able to execute them.” (July 2014 Hr'g Tr.
3-4). He's “trying” but the students
aren't learning anything. (Id. 7). Hart
concluded that Davidson is “in a job that he can't
do.” (Id. 4). The Board emphasized that the
District must evaluate Davidson “fairly on his ability
to do his job.” (Id. 7-8). Hart agreed,
otherwise the whole evaluation would be “a ...