Tasking employee while she was on FMLA leave could constitute interference

Denying a school board’s motion for summary judgment in part, a federal district court in Illinois concluded that a principal who telephoned a teacher who was on medical leave and asked her to come up with lesson plans and to post grades could be considered to have “crossed the line into interference.” However, the employer’s request for a second medical opinion before approving leave did not constitute interference and the employee failed to raise a triable issue on her FMLA retaliation claim because the employer’s unrebutted evidence indicated she would have been suspended and terminated for poor performance in any event.

New principal reassigns employee.

The employee worked as a writing coach for Chicago Public Schools, and as part of her duties, she would create writing curriculum and writing programs. A new principal came on board in March 2007, and she became concerned about the employee’s performance as a writing coach. She reassigned the employee to a classroom teaching position beginning with the 2009-10 school year. According to the employee, the principal switched her grade assignment every year from that point forward, “for four years until she sought my termination.”

Unsatisfactory performance ratings.

Also, after several years of satisfactory reviews, the principal gave the employee an unsatisfactory rating in 2012. This required the employee to go through a remediation plan. According to the employer, she did not cooperate with the process, which involved classroom observations by the principal and a “consulting teacher.” The employee also refused to sign post-observation feedback forms. Ultimately, the principal gave the employee multiple unsatisfactory performance ratings and informed her in May 2013 that she would seek the employee’s termination. The employee was suspended in July 2013 after failing to complete a remediation process, and she was fired in October 2017.

FMLA leave period.

Meanwhile, the employee took her first FMLA leave in January 2010 for three weeks. She took leave again in March 2012; she was also approved for two extensions for a total of three months. She applied for FMLA leave a third time in February 2013 but was informed the employer needed a second medical opinion first. The second opinion was provided in mid-March and her leave was retroactively approved from early February to early April 2013.
According to the employee, the principal contacted her multiple times during her 2013 leave, requesting emergency lesson plans for the entire leave period and directing the employee to post student grades even though it was not yet necessary. The employer countered that the principal only asked a few non-intrusive questions, such as where the emergency lesson plans were stored, and the employee was not asked to perform any work while on leave.
After she returned from leave, the employee was allegedly subjected to unfair deadlines, and was given only a one-day extension for providing a report that was due the day she returned, while other teachers received “a few weeks” to submit the same report.

FMLA interference.

Filing suit, the employee claimed the principal interfered with her FMLA leave by encouraging the employer to contest her medical certification and require a second opinion, by contacting her and requiring her to work while on leave, and by demanding she complete a report within one day of returning from leave. Because the FMLA allows employers to request a second medical opinion before approving leave, the court granted summary judgment against that interference claim. The claim concerning the one-day deadline also failed because that report did not influence the employee’s discipline, suspension, or termination. And while the deadline may have made the employee’s return to work unpleasant, nothing in the record suggested that it rendered her FMLA leave “illusory” or led to negative consequences.
Summary judgment was denied, however, with respect to the contacts during the employee’s third period of leave. Crediting the employee’s version of events, the principal “crossed the line into interference by demanding that Plaintiff—while on leave—perform work such as providing lesson plans and posting grades.”

FMLA retaliation.

The employee also claimed that the employer suspended and ultimately fired her in retaliation for her having taken protected FMLA leave. Granting summary judgment against this claim, the court first explained that the employee did not identify a comparator employee so the McDonnell Douglas framework did not apply and it would have to instead evaluate the evidence as a whole to determine if it would allow a reasonable factfinder to conclude that her FMLA leave was causally connected to her suspension and termination.
Even assuming (without deciding) that the employee showed causation, the court found that her claim could not survive because the unrebutted evidence showed she would have been suspended and later fired even absent a retaliatory motive. She continued receiving “unsatisfactory” performance ratings throughout her remediation process, she refused to participate in some of the process, and the board of education took all necessary steps under applicable state law before suspending and dismissing her. The court also noted that the same principal gave favorable performance reviews to other teachers who took leave, which indicated the employee was rated poorly because she performed poorly, not because she took leave.

SOURCE: Hall v. Board of Education of the City of Chicago, (N.D. Ill.), No. 14-cv-3290, January 29, 2018.
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