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Davidson v. Evergreen Park Community High School District 231

United States District Court, N.D. Illinois, Eastern Division

May 23, 2017



          MARY M. ROWLAND United States Magistrate Judge

         Brad 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.[1] 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.


         A. Legal Standard

         Summary 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).

         “The 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).

         B. Local Rule 56.1

         Local 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)).

         C. Evidentiary Objections

         In its 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 business records.”).

         Davidson, 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.”).[2] Davidson's objections are overruled.

         In 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 overruled.[3]


         Davidson 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).[4]

         Pursuant to the District's tenured teacher evaluation schedule, Davidson was evaluated during the 2012-2013 school year. (¶ 24 & Ex. D-14).[5] 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 ¶¶ 28-29).

         Davidson'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).

         In 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).

         At the 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 ...

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