Nigh, Melissa v. School District of Mellen

Filing 121

ORDER granting 87 Motion to correct proposed findings of facts by plaintiff; Granting in part and Denying in Part 16 Motion for Summary Judgment by defendant. Signed by District Judge William M. Conley on 9/25/2014. (voc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

MELISSA NIGH,
Plaintiff,

OPINION & ORDER

v.
13-cv-183-wmc
SCHOOL DISTRICT OF MELLEN,
Defendant.

Melissa Nigh brings this action pursuant to the Family and Medical Leave Act, 28
U.S.C. § 2601 et seq., against her former employer, the School District of Mellen, for
allegedly (1) failing to restore her to the equivalent position of Principal/District
Administrator after she returned from FMLA leave; (2) improperly considering her FMLA
leave in initiating the non-renewal of her contract; and (3) ultimately failing to renew her
contract in retaliation for her exercise of FMLA rights.

Defendant moves for summary

judgment on all three claims. (Dkt. #16.) For the reasons explained below, the court agrees
that Nigh has failed to produce enough evidence to survive summary judgment as to the
second of her claims; however, a reasonable jury could find on this record that defendant
interfered with Nigh’s right to be restored to her equivalent position and retaliated against
her for taking FMLA leave. Accordingly, Nigh may proceed to trial on those claims.

UNDISPUTED FACTS1
I. Background
In August of 2008, plaintiff Melissa Nigh began her employment for the School
District of Mellen, Wisconsin (“the District”), as the Principal for Pre-Kindergarten through
grade 12. When she was hired, there was the possibility that the position would eventually
be consolidated into Principal/District Administrator to cut expenses. Until he retired on
June 30, 2010, District Administrator James Schuchardt supervised her but gave her no
performance evaluations.
In May of 2010, the District entered into a two-year contract with Nigh, making her
its first combined Principal/District Administrator.2 The contract was effective from July 1,
2010 until June 30, 2012 and was subject to a further one-year extension. Before she
assumed her new duties, Nigh attended St. Mary’s University to acquire her Administrator’s
license, which was mandatory for the new position. The District paid for her attendance.
Beginning July 1, 2010, when Nigh officially became the Principal/District
Administrator, she was subject to the supervision and control of the Mellen School District
Board of Education (“the Board”), which was then comprised of the following seven elected
members: Vicky Ellias (who also served as president), Anthony Huber, Lesley Sederholm,
Nicki Lazorik, Ronnie Rossberger, Wendy Koosman and Becky Bergey.3

The Board

assigned Nigh her duties and responsibilities, which included: (1) supervising staff, staff
For purposes of summary judgment, the court finds the following facts to be material and
undisputed except as otherwise noted.
2
The parties use the terms “District Administrator” and “Superintendent” synonymously
throughout their filings, and so the court will do so as well.
3
From April of 2011 to April of 2012, the school board was comprised of Sederholm (president),
Lazorik, Rossberger, Jeff Ehrhardt, Koosman, Huber, and Bergey. From April of 2012 until October
24, 2012, the school board was comprised of Sederholm (president), Lazorik, Rossberger, Ehrhardt,
Stacy Thewis, Bergey and Peter Jokinen.
1

2

evaluations, staff discipline, curriculum, hiring, student discipline, finance, budgets, leave
requests, data retreats, transportation, food service, 9th hour, building and grounds; (2)
serving as liaison between the Board and staff, and between the Board and community; (3)
leading Board committees; and (4) preparing agendas for Board and Committee meetings.
The Board also had the authority to modify Nigh’s duties and responsibilities as it deemed
appropriate.
Nigh completed the District budget for both the 2010-2011 school year and the
2011-2012 school year. The Board approved those budgets in October 2011 and October
2012, respectively.
II. Nigh’s First Performance Evaluation
Nigh received no discipline or warnings for her work performance in 2010 or 2011.
A staff performance evaluation completed in April of 2011 was mostly positive, with Nigh
receiving all rankings of 3 and 4 (out of 4) from the staff members who completed the
evaluations.
That same month, however, the Board presented Nigh with its own performance
evaluation for the 2010-2011 school year, which was distinctly less positive. She achieved
an overall rating of 1059 points out of a total of 1800, which equated to an average rating
of 58.8%. Had Nigh achieved a “proficient” rating in all assessment areas, she would have
scored 1350 out of 1800 points, or 75%.
Rossberger prepared a typewritten letter as part of the evaluation, highlighting
several areas of concern. These included: (1) Nigh’s failure to provide preliminary financial
information and scenarios to the board and community in light of Wisconsin Act 10; (2)

3

her failure to meet an expectation for follow-up of others’ duties and more documentation
to permit more efficient tracking of effectiveness; (3) her excessive reliance on others to
provide guidance; (4) poor values and the inability to hold professional staff to a high
ethical standard; (5) poor execution, enforcement and follow-up of policies intended to
protect students and staff; (6) an inability or unwillingness to monitor staff effectively to
ensure enforcement of school policies and procedures; and (7) her failure to articulate the
district’s purpose and priorities to the community with respect to financial matters and the
Board’s positions.
In her personal evaluation, Board member Bergey rated Nigh’s performance
“minimal” or “basic” in 54 of 65 categories, with ratings of “proficient” in the remaining 11
categories. She also highlighted concerns of her own, including: (1) Nigh’s failure to follow
up on Board recommendations concerning strategies to increase community presence during
strategic planning meetings; (2) failure to take on a leadership role and minimal evidence of
“self-directed” leadership; (3) difficulties working under the Board and satisfying staff
direction; and (4) irritation and uncommunicativeness when disagreeing with the Board.
Board member Lazorik’s personal evaluation rated Nigh’s performance as “minimal”
in 5 categories, “basic” in 43 categories, “between basic and proficient” in 7 categories, and
“proficient” in 11 categories. She also noted her own concerns with Nigh’s performance,
including: (1) selectiveness in choosing information to research and present to the Board;
(2) failure to demonstrate that each Board member’s statement was equally important to
others’; and (3) failure to provide detailed and informative administrative reports to the
Board.

4

Disappointed in her evaluation, Nigh provided a written rebuttal to some of the
negative commentary.
III. The November 2, 2011 Meeting
In November of 2011, the Financial Manager for the District, Joe Andrashie,
resigned. He had been hired in 2006 and had received excellent performance reviews from
all the Superintendents and Administrators before Nigh, but according to Jeff Ehrhardt, a
former District Superintendent, there had always been issues with Andrashie -- namely, that
he had not reconciled bank accounts for several years. The parties dispute whether the
Board informed Nigh that they had concerns about Andrashie’s performance before
Andrashie resigned.
At a special Board meeting convened on November 2, 2011, Nigh presented a
memorandum to the Board with two possible scenarios she asked the members to consider.
(See Peter Reinhardt Aff. Dep. Ex. 14 (dkt. #44-23).) The first scenario involved the hiring
of a business manager, who would take on both the duties of the current financial manager
and “budget forecasting for the future.” This business manager would also assume “more
financial responsibility” and take “more initiative on other items, such as overseeing grants,
food service, and building and grounds.” (See id. at 1.) The second scenario provided for
the hiring of: (1) a bookkeeper, who in Nigh’s words would “have to be very, very good with
Skyward,” administrative software designed for K-12 school districts; (2) a superintendent
who would work one to two days per week on budgetary implications, personnel handbooks,
budget forecasting and staff discipline; and (3) an Assistant District Administrator/Principal.
(See id. at 1-2.)

5

Nigh

recommended

hiring

a

full-time

financial

manager

with

a

business

administrator license, but the Board ultimately approved the hire of a full-time bookkeeper
and directed Nigh to post the position as a limited-term position for the remainder of the
school year.

On November 28, 2011, the District hired Jane Matthias; she had no

background with the Skyward program and had to be trained in that capacity.
By this time, Nigh had begun to find it challenging to find enough time to complete
all the tasks associated with her position, as indicated by the bullet points she prepared for a
Board meeting on December 7, 2011. (See Peter Reinhardt Aff. Dep. Ex. 84 (dkt. #72).)
Around this same time, an unspecified incident occurred involving Carol Popovich, an
administrative assistant, and Laurie Neibauer, a staff member. Nigh called a meeting with
the two individuals, and Popovich eventually walked out because she felt that Nigh had
reprimanded her in front of a fellow employee. The parties dispute whether the working
relationship between Nigh and Popovich deteriorated after that incident.
IV. Nigh’s Second Performance Evaluation
Board members completed Nigh’s next performance evaluations between late
October and December 14, 2011. The Board used a different evaluation tool to conduct
this evaluation; under the new rubric, Nigh received 621 out of 1148 points, which
translated to a percentage of 58%. Bergey again prepared a summary of board members’
observations and concerns; it noted that “Melissa’s strength is predominately in the area of
the Principal responsibilities portion of the position.

Melissa shows competence and

enthusiasm in the area of Curriculum Planning and Development.”

6

Bergey also wrote that the most prominent themes or areas of concern arose in the
areas of Organization, Finance, and Physical Plant Management; Board Relations; and
Policy and Governance. Her summary went on to list the “[c]ollective majority critiques
relating to this year’s three lowest scoring categories.” (Peter Reinhardt Aff. Dep. Ex. 10
(dkt. #44-21) LM01207.) In the Organization, Finance, and Physical Plant Management,
those critiques included “weak/non-existent leadership,” “lack of initiative,” “neglectful and
unaware of failures and chaos in the financial area,” and “ongoing Policy violations
including credit card misuses.” (Id.) In the Board Relations area, Bergey included critiques
like “Melissa’s performance has weakened in the area of District Administrator,” “Lack of
regular and necessary updates to the Board,” “Board must request/solicit information; lack
of Administrator being primary professional advisor to the Board,” “Information withheld
from the Board,” and “Melissa’s loyalty to the Board is in question.” (Id. at LM01208.)
Finally, in the Policy and Governance area, concerns included “Neglect of policies,” “Lack of
Policy enforcement,” “Lack of generation of Guidelines,” “Lack of defining expectations and
responsibilities to staff,” and “Lack of development of procedures for working with the
Board and Staff.”

(Id.)

Nigh points out, however, that she received various positive

comments from certain Board members in a number of these areas.
As part of this evaluation, Nigh received a detailed set of written expectations for her
future performance. They included the following:


“Melissa will ask for help when she needs it.”



“Melissa will prepare a thorough, monthly written report that will discuss how she
is working toward and providing evidence for at least a Proficient level of
Understanding in each of the nine categories of the Evaluation tool.”
7



“Melissa will enforce all policies and complete Guidelines in a timely manner.”



“Melissa will improve communication with the Board by uniformly providing each
Board Member a weekly District Administrator report which provides the
highlights/concerns of the District over the past week.”



“Melissa will attend all PAC meetings (except when urgent/emergent extenuating
circumstances arise) and include PAC meeting information in her monthly report.”

(See id. at LM01208 (emphasis in original).)
Defendant contends that, by this time, the majority of the board members had
serious concerns about Nigh’s ability to perform her job, although there is a dispute as to
whether they believed she could not continue in her current position at the time. (See Pl.’s
Resp. DPFOF (dkt. #74) ¶ 38.)

When the Board members completed this second

evaluation, they did not yet know of Nigh’s health issues.
V. Nigh’s Illness and Return to Work
The Board planned to present Nigh with her evaluation at its December 21, 2011,
meeting, but Nigh was absent. At the beginning of December, she had begun experiencing
abdominal pain and severe vomiting and was unable to eat. Her symptoms had become
“unbearable” by December 13, 2011. Nigh used sick days or sick leave on December 13th,
15th, 16th, 20th, 21st, 22nd and 23rd.
Nigh contacted then Board President Lesley Sederholm just before the December
21st meeting and advised her that she was ill and would not be attending. During the call,
Nigh “sensed” Sederholm did not believe she was actually ill. Nigh also missed other Board
meetings due to illness.
8

On December 23, 2011, Nigh communicated to the Board that she was scheduled to
have gallbladder surgery on December 30, 2011, in Duluth, Minnesota. She sent a second
e-mail on December 28, 2011, updating the Board and staff on her upcoming surgery and
her plan to return to work the following Tuesday. Nigh had the surgery as scheduled and
returned to work on January 3, 2012. That same day, Bergey and Rossberger presented her
with a summary of the Board’s performance evaluation, including the list of expectations.
Neither Bergey nor Rossberger called ahead to inform Nigh they were coming to her office
with the evaluation.
From January of 2012 onward, Nigh complied with most of the expectations on the
list. She prepared and presented her monthly District Administrator reports, as well as
separate reports detailing how she was working toward proficiency in each of the nine
categories of the evaluation tool. She prepared weekly District Administrator reports and
provided them to the Board. She attended PAC meetings and updated the Board on those
meetings. The parties dispute whether she timely completed District Guidelines.
From January 3 through January 5, 2012, Nigh worked modified days due to illness
or medical appointments. On January 6, Nigh informed the Board that she was still in a
great deal of pain and requested a modified work schedule, asking to be permitted to work
half-days for the next three to four weeks. That same day, Rossberger sent an e-mail to the
Board regarding Nigh and her work restrictions.
Also, today I spoke with Melissa on the phone, prior to her
sending out an e-mail to the Board. She said she had left a
message for Lesley, but she had not gotten back to her. I
informed her Lesley was out of town. She stated she had seen
her Doctor today and she had been placed on light duty. She
stated the Board would need to make a decision, because there
is no language in her contract regarding a modified work day. I
9

told her, personally I would need to know what her restrictions
were prior to making that decision. She stated, “that is fair,”
and she “understood that would be needed.” She told me there
were no listed restriction[s] on her paperwork she received today
and she would contact her Doctor via e-mail to get a list of
restrictions if any. She volunteered to provide the Doctor’s note
and a list of restrictions to the Board. Because she needs a
Board decision on this matter ASAP, I told her we would add
this to the agenda for the special Board meeting set for the 11th.
She will also be completing FMLA paperwork.4
(See Oyvind Winstrom Supp. Decl. Dep. Ex. 92 (dkt. #86-13).) On the 6th and from
January 9th through 11th, Nigh worked four hours per day consistent with her doctor’s
instructions.
At a special meeting on January 11, 2012, the Board approved Nigh’s request for a
modified schedule. On January 12th, Nigh worked only six hours, and on January 13th, she
worked only four hours, both per her doctor’s instructions. Nigh did not work the entire
week of January 23 through January 27, because she was in Marshfield for medical testing.
Because she was going to be absent from the Board’s meeting on January 23, Nigh prepared
her Administrator notes and comments ahead of time. Nigh continued to update the Board
on her health, via e-mail, throughout January of 2012.
VI. Automatic Contract Rollover
At least by January 17, 2012, Nigh believed that non-renewal of her contract was a
possibility, based on the way Board members had begun to treat her.5 She wrote in an email on that date that “I believe my Board is going to non-renew my contract. . . . I have
Defendant does not dispute the contents of the e-mail, but points out that Nigh later testified that
the reference to the FMLA was incorrect, “because at that time I was just on light duty and I didn’t
need to file FMLA.” (Nigh Dep. (dkt. #30) 117:14-19.)
5
In her deposition, Nigh said she believed the difference in treatment began in “early December.”
Later in the deposition, she linked the advent of the Board’s hostility to her call with Sederholm,
which took place just before the December 21 meeting.
4

10

never been put in a situation like this with my job performance and I am really struggling
with it.” (See Peter Reinhardt Aff. Dep. Ex. 93 (dkt. #44-46).) Around that time, she
requested a letter of recommendation from Board member Ehrhardt, which he provided;
Nigh had no input into the letter’s contents. (See id. at Dep. Ex. 128 (dkt. #44-59).) After
highlighting some of her positive traits as Principal, the letter also stated that: “Mrs. Nigh is
a

highly

skilled

administrator.

Consider

this

letter

the

highest

of

possible

recommendations.” Ehrhardt has been asked to provide such letters in the past and has, on
at least one occasion, declined to provide a letter of reference when he believed the
requester was not a good teacher.
On January 23, 2012, in a closed session, the Board discussed Nigh’s job
performance and decided to issue a letter ending the automatic rollover of her contract. On
January 24th, the District’s counsel prepared a letter notifying Nigh that the automatic
rollover of her contract had been canceled. It stated in part:
The decision to not rollover or extend a contract gives you a
year, between now and January, 2013, to convince the Board of
Education that you are worthy of renewal. However, I would be
remiss if I did not advise you that members of the Board are
very concerned about your performance – to the extent that it
seriously considered initiating contract termination proceedings
at this time.
The Board members feel that you have disregarded written
Board policy as well as Board directives on a number of
occasions and in a number of decisions. For example, despite
concerns about the Financial Manager’s performance expressed
by Board members, they feel you failed to adequately supervise
the Financial Manager. Further, when he ultimately resigned,
Board members believe you improperly figured his separation
pay to the District’s (significant) disadvantage. Board members
are upset that you did not charge teachers and other employees
who were absent (due to head lice) to take sick leave as is
required under District policy. Board members have questions
11

and significant concerns regarding you (and others) improperly
purchasing discounted and tax-free food from the District.
Finally, you sent a teacher to an Athletic Director’s Conference
on grant monies inappropriately.
In other words, there are serious concerns which make it likely
that the nonrenewal process will be initiated in January, 2013.
(See Peter Reinhardt Aff. Dep. Ex. 13 (dkt. #44-22).) The Board approved the letter at its
meeting on January 26, 2012, and Rossberger hand-delivered it to Nigh the morning of
January 28, 2012. Rossberger later prepared an e-mail to the Board that described the
letter’s delivery and Nigh’s reaction. According to that e-mail, Rossberger was careful to
distinguish between “ending the automatic rollover language” and an actual “non-renewal.”
(See PPFOF (dkt. #43) ¶ 70.)
VII.

First FMLA Leave
On February 2, 2012, Nigh submitted a request for Family and Medical Leave, along

with the appropriate paperwork, seeking a leave of absence from February 2nd through
February 15th. Her leave request was subsequently extended until February 22, 2012. On
February 15th, the Board voted and approved her request. There is no dispute that Nigh
had a serious health condition and was eligible for FMLA at that time.
While Nigh was on leave, there was initially no Administrator or Superintendent at
the school. Accordingly, several Board members took a more active role in the day-to-day
operations of the District to address various issues that surfaced during Nigh’s absence. The
Board also held numerous closed-door meetings to deal with staffing and student issues, and
administrative staff and Board members periodically entered Nigh’s office to search for
materials and files.

12

During this time, the Board decided it would send someone to Nigh’s house to
retrieve her keys and cut off Nigh’s access to her school e-mails. There was no official policy
requiring that employees on leave turn in their keys and give up e-mail access. In the past,
some other employees had, like Nigh, lost access while on FMLA leave, while others had
not. Board President Sederholm called Nigh to inform her of the Board’s decision, and
Nigh became upset and started to cry. Sederholm understood the Board’s decision was
hurtful, but the District nevertheless had IT cut off Nigh’s school e-mail access, and on or
about February 2, it sent someone to her home to pick up her keys.
The parties dispute the motivation underlying the Board’s decision to revoke Nigh’s
access. The Board frames it as an attempt to help Nigh, who had previously informed the
Board members that she was having a difficult time separating herself from work;
Sederholm claimed that Nigh was sick, but continued coming into school after hours. Nigh
disputes these proffered reasons, and the parties do not dispute that the only time Nigh
actually went to school while on leave was to watch her son’s basketball game.
At some point during Nigh’s medical leave, Administrative Assistant Popovich began
to monitor Nigh’s e-mails.6 The District’s new bookkeeper, Jane Matthias, was aware of this
practice, because Popovich shared the contents of e-mails with her. One of the e-mails
purported to be from American Airlines, dated January 23, 2012, and indicated that Nigh
had an airline ticket to Albuquerque, New Mexico. (See Oyvind Wistrom Supp. Decl. Dep.
Ex. 119 (dkt. #86-16).) Matthias recalls Popovich saying that Nigh had an airline ticket
and Interim Superintendent Cox commenting that, if Nigh was “so sick, why was she going
When this monitoring started is not clear from the parties’ submissions, but given that Cox was not
hired until Nigh’s second period of leave, it is possible that the monitoring did not begin until then.
Regardless, this can be clarified by the parties at trial.
6

13

on a trip?” On a hard copy of the e-mail, Board member Rossberger wrote: “Can we see if
this was a scheduled vacation. Was it during leave. Can we get copy of attachment.” (See
id.) The original message turned out to be nothing more than a junk e-mail -- Nigh did not
purchase an airline ticket and has never been to Albuquerque.
VIII. February 23, 2012 Reprimand
Nigh returned from leave on February 22, 2012, as scheduled. The next day, the
Board issued Nigh a written reprimand with fourteen, separate bullet points detailing
alleged policy violations and misconduct. (See Oyvind Wistrom Decl. Ex. 20 (dkt. #2520).)

The parties dispute when the Board began drafting the reprimand, although

defendant contends that the Board discussed issuing the reprimand as early as December of
2011. There are no minutes from February of 2012 reflecting formal action by the Board
with respect to the reprimand, although Board member Ehrhardt testified that the Board
reviewed and approved all written warnings that it gave to Nigh.
Each of the fourteen bullet points described a separate “violation.”

The parties

dispute whether Nigh was actually at fault for any of the alleged violations. Nigh maintains
that the reprimand was unjustified.

(See Pl.’s PFOF (dkt. #43) ¶¶ 112-234.)

The list

included:


Providing false information to the Board regarding the status of a support staff
member with ongoing policy and handbook violations.



Authorizing law enforcement to use the school for “active shooter” training without
notifying all staff.

14



Granting paid time off and reimbursement, in violation of policy and without
authority, when staff members contracted lice.



Using Title II(A) funds inappropriately to pay for the Athletic Director to attend
WIAA training.



Failing to protect the District and its students upon reports of a support staff
member’s abuse of students.



Violating chain of command by contacting the Board Clerk instead of the Vice
President regarding teacher evaluations.



Failing to complete or have someone complete a teacher evaluation for the Special
Education Director.



Informing two staff members that the Board would be terminating them or reducing
their positions, without the authority to provide such information.



Failing to monitor a staff member overseeing the “9th Hour” program, resulting in
staffing problems and student injuries.



Ordering food through tax-free accounts and permitting another staff member to do
so as well.



Failing to maintain documents related to a directive pertaining to liquidated
damages against the existing Financial Manager.



Failing to manage and control the use of District credit cards.



Failing to enforce sign-out policy.



Failing to report to law enforcement allegations of two physical assaults and false
imprisonment that took place between a support staff member and children.

15

That same day, Nigh also received a revised list of expectations, including that she:
ask for help from the Board when needed; provide the Board with planned weekly
schedules; prepare thorough monthly written reports; enforce policies and complete
guidelines in a timely manner; improve communications with the Board via weekly reports;
and attend all PAC meetings. Nigh complied with most of these expectations, although
defendants again contend that she did not complete District Guidelines in a timely fashion.
On June 6, 2012, Nigh submitted a written rebuttal to the issues raised by the
reprimand. The Board issued a written “sur-rebuttal” on August 22, 2012.
IX. Second FMLA Leave
On or about March 4, 2012, Nigh submitted a request for a second leave of absence
of eight weeks. The request indicated that her medical team “would continue to evaluate
her health status as time moves on” and would adjust her return date accordingly. The
Board approved that request as well. There is no dispute that Nigh continued to have a
serious health condition and was eligible for FMLA leave.
On March 6, 2012, the Board voted to approve the hire of a part-time Interim
Superintendent, to cover the period until Nigh returned to work. The next day, the Board
hired Michael Cox as Interim Superintendent, with an initial contract covering the period of
March 7, 2012 until May 2, 2012. The Board neither consulted Nigh nor sought her input
before making this decision. Throughout Nigh’s absence, Cox worked four days per week,
performing both Superintendent and Principal duties. Because there was no other office
available in the administrative area, Cox used Nigh’s vacant office.

16

During her second leave, Nigh’s relationship with the Board continued to deteriorate.
While at her son’s basketball games, for example, she observed that Board members Hubert
and Lazorik were ignoring her, although their motivations are in dispute. Furthermore, at
one game, Ehrhardt was sitting in front of Nigh but told her he could not talk to her
“because there are eyes watching.” Nigh’s presence at the basketball games also apparently
raised doubts in the minds of some Board members as to her condition: for example,
Matthias recalls Lazorik stating she thought Nigh was not really ill and was actually “faking
it,” though her specific wordking is in dispute7 During a finance meeting, Lazorik also
commented that she thought “the whole thing was just odd – that Melissa was going on
FMLA.” Cox also questioned Nigh’s entitlement to leave, stating, for example, that he
could not understand how Nigh was collecting long-term disability “without a long-term
illness.”8
On or about April 17, 2012, Nigh notified Matthias in the administrative offices that
she would be returning to work on May 1, 2012. After learning of Nigh’s planned return
date, Cox sent an e-mail to the Board that read:
I don’t like surprises and know you don’t want to come tonight
and get a big one! Here it is: Melissa Nigh, this afternoon,
notified us she plans on returning to work on May 1, 2012. We
can talk about what you want to do in closed session tonight.
(Peter Reinhardt Aff. Dep. Ex. 29 (dkt. #44-29).) Accordingly, at its April 28th meeting,
the Board discussed the situation and voted to approve Cox’s continued employment on a
part-time basis until June 30, 2012.

Plaintiff’s unopposed motion to correct this proposed finding of fact by adding the word “faking”
(dkt. #87) is GRANTED.
8
Nigh had applied for long-term disability benefits on or about April 2, 2012.
7

17

On or about April 26, 2012, Nigh submitted the fitness for duty certification form
that the District required for employees returning from FMLA leave. That same day, Nigh
and her attorney, Dan Cieslak, met with Cox to discuss Nigh’s return to work.9

The

meeting became vocal and heated as they sought to determine the roles that Cox and Nigh
would assume upon Nigh’s return. During the meeting, Cox stated that he intended to stay
in Nigh’s office and that she would need to find another office. He also advised Nigh to
consider taking a one-year contract as a Principal and then seeking a different position
elsewhere, to avoid a non-renewal on her record.10 Nigh claims that Cox also said that “the
Board requested he talk to Ms. Nigh about being paid through June 30, and that she could
‘just stay home’ and be ‘done.’” Defendant disputes that Cox made this statement, but
concedes that Cox was “openly hostile” toward both Cieslak and Nigh. (See Def.’s Resp.
PPFOF (dkt. #80) ¶ 288.)
Following the meeting, Nigh e-mailed Cox requesting an updated job description
setting forth her revised duties, to avoid confusion concerning their respective roles. Cox
responded via e-mail and provided his understanding of their respective duties, which
included Cox assuming responsibility for finance, building and grounds, food service, the
21st Century grant and staff evaluations. Cox also indicated he would be vacating her
office.

Nigh responded, “This sounds like it may be fine.

However, due to my

circumstances, I will not be meeting with the Board unless my attorney is present either by

The parties dispute whether Cox was authorized to speak on behalf of the Board during this
meeting. Nigh alleges that Cox stated he was, while defendant points to the testimony of various
Board members indicating Cox had no such authorization.
10
It is also undisputed that Cox informed Sederholm that he had told Nigh it would be best if she
looked for different employment, and that Sederholm took no action in response to this disclosure.
9

18

phone or in person.” On April 30, 2012, Cox prepared and sent an e-mail informing staff of
this division of responsibilities.
X. Nigh’s Return to Work
On May 1, 2012, Nigh returned to work in the position of Principal/District
Administrator, with no reduction in her pay or benefits or change in her title. By this time,
Cox had vacated her office and set up a new office space in the old meeting/break room.
On May 2, 2012, the Board met to discuss the roles Cox and Nigh would assume
following Nigh’s return from leave. Cieslak had originally been scheduled to appear by
telephone on Nigh’s behalf, but he was later informed that he could not attend unless he
could appear in person, as the District’s attorney was appearing by phone. Ultimately, the
Board formally charged Cox with overseeing finance, building and grounds, food service,
staff evaluations and the 21st Century grant. Nigh was deemed responsible for curriculum,
response to intervention, board policy guidelines, student issues and student discipline. Cox
and Nigh were to work collaboratively with one another and were to report directly to the
Board. Cox’s schedule going forward was reduced to either two or three days per week.11
The Board’s decision altered Nigh’s duties and responsibilities going forward.
Essentially, although she remained responsible for all Principal duties, she had lost authority
over Superintendent duties. In addition, she was no longer involved in preparing agendas
for Board meetings and Committee meetings, nor was her input sought. The parties dispute
whether she continued to serve as the Board’s liaison to staff and the community.
Nigh’s involvement in certain areas and activities also changed somewhat after her
leave. For example, Popovich did not know Nigh was supposed to be invited to at least two
11

During the 2012-13 school year, Cox’s schedule was further reduced to two days per week.

19

meetings and failed to notify her. Nigh found out about the first meeting before it occurred
and was able to attend despite the lack of notification, but she did not hear about the
second meeting and did not attend. Nigh also did not participate in the hiring of a business
education teacher and a special education/health aide, and her name was removed from
letters of intent to staff and from lunch bills. She no longer received copies of agendas for
meetings, although defendant argues that they were always accessible to her via the website
or public postings in the school. She was also asked to leave any closed-session meetings
involving personnel or staffing issues.
On May 3, 2012, Cox sent an e-mail to the Board regarding the budget. (See Peter
Reinhardt Aff. Dep. Ex. 54 (dkt. #47).) In part, the e-mail stated: “With Melissa returning,
it has put a real twist in our effort to balance this year’s budget.” (Id.)
On May 30, 2012, the Board prepared a letter setting forth its expectations for Nigh.
The letter indicated that in the Board’s view, Nigh continued to work as the District
Administrator/Principal and would continue to be evaluated in both capacities.
instructed Nigh to “work collaboratively” with Cox:
For a finite amount of time you have an invaluable opportunity
to work with a highly experienced Interim Administrator to
meet the needs of the District and to move toward professional
competence. Only you can take the initiative to utilize this
resource. When the Interim Administrator’s time with the
District is concluded, you will return to being the sole District
Administrator/Principal.
Please take this time to involve
yourself in all areas of the District by communicating and
working with the Interim Administrator. Talk with the Interim
Administrator about your areas of weakness and ways to
strengthen your performance.
(See Peter Reinhardt Aff. Dep. Ex. 126 (dkt. #65).)

20

It also

At some point following Nigh’s return, a student noticed that the sign over her office
door, which had stated “Superintendent,” was missing. It is unknown what happened to
the sign, but Nigh never requested that a new one be issued. No one ever investigated the
sign’s disappearance.
XI. September 19, 2012 Reprimand
On September 19, 2012, Nigh received a second written reprimand, purportedly
involving several additional deficiencies in her performance. (See Peter Reinhardt Aff. Dep.
Ex. 32 (dkt. #44-32).)

As with the first reprimand, the parties dispute whether the

reprimand accurately identifies the alleged deficiencies. They included:


Failing to complete Guidelines in a timely manner.



Failing to maintain official District documents -- specifically, a Management
Representation letter needed for an audit.



Authorizing professional time off for various staff members, despite the fact that the
Board had assigned authority over personnel and staff issues to Cox following Nigh’s
return.



Sending an e-mail to District staff advertising a house for rent in Mellen, in violation
of Mellen Policy precluding employees from having a financial interest in an activity
that conflicts with their duties in the school system.

The Board also provided Nigh with updated expectations that criticized her for failing to
inform the Board of her struggles and instructed her to report on her progress in all
evaluation categories, including those over which Cox had primary authority.

21

On October 15, 2012, Nigh submitted a written rebuttal to the contents of the
September 19, 2012 reprimand. (See id. at Ex. 33 (dkt. #44-33).) The rebuttal addresses
three of the four purported violations but does not claim that the reprimand for her failure
to complete Guidelines was issued inappropriately.
On September 19, 2012, the same date as the second reprimand, Nigh submitted a
memorandum of resignation to the Board. In it, Nigh indicated she was under contract to
serve the District through June 30, 2013, but that she would not be seeking a renewal of her
contract for the 2013-2014 year. Sederholm acknowledged receipt of the letter, but refused
to accept the resignation. Counsel for the Board was at that time working with Nigh’s
attorney to agree on terms for a voluntary separation.
XII.

Nigh’s Third Performance Evaluation and Non-Renewal
On October 24, 2012, the Board voted 6-0 to send Nigh a preliminary notice that it

was considering non-renewal of her individual contract pursuant to Wis. Stat. § 118.24.
Nigh initially requested a formal hearing, but ultimately decided to forego it.

She did,

however, request through her attorney a written breakdown of the reasons substantiating
the Board’s decision to issue the preliminary notice. Attorney Robert Butler, Wisconsin
Association of School Boards (“WASB”) Associate Executive Director and Staff Counsel,
responded via letter, including the attachments Nigh had requested “to substantiate the
Mellen School Board’s action.”

Those attachments included the written reprimands of

February 23 and September 19. (See generally dkt. #45.) The letter also included what
appears to be a summary document of sorts detailing Nigh’s alleged “Failure to meet the
District’s Performance Expectations.” One of the listed failures was Nigh’s “inability to

22

understand, implement and establish financial budgeting of the District,” although
budgeting was no longer Nigh’s responsibility after she returned from FMLA leave. Another
listed reason was Nigh’s alleged failure to inform the Board why she was absent from certain
Board meetings.
In December of 2012, the Board presented Nigh with her 2012-2013 performance
evaluation.

She received a total score of 469 out of a possible 972 points, for a total

percentage score of 48%.

At least one Board member, Ehrhardt, did not provide any

numerical ranking for Staff Evaluation and Personnel Management, because those areas
were not part of Nigh’s responsibilities at the time; this resulted in a default ranking of 0/12
points.

One Board member’s evaluation criticized her for missing numerous Board

meetings; the parties dispute whether any of these absences were related to Nigh’s illness or
leave. Another comment criticized her for failing to work with Cox or use him as a resource,
although Cox himself apparently felt they had a good relationship after Nigh’s return and
that Nigh had been receptive to his mentoring. Cox also received a performance evaluation
at this time and received a total score of 797 out of 972, or 82.7%.
On December 18, 2012, the Board voted 6-0 to non-renew Nigh’s original contract
“for the reasons that were previously provided to you,” thereby ending her employment on
June 30, 2013. (See Peter Reinhardt Aff. Dep. Ex. 47 (dkt. #44-38).) Nigh continued as
Principal/District Administrator until that date without a reduction in pay or benefits.

OPINION
Summary judgment is appropriate if the moving party “shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
23

of law.” Fed. R. Civ. P. 56(a). In ruling on a motion for summary judgment, the court views
all facts and draws all inferences in the light most favorable to the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). “Only disputes over facts that
might affect the outcome of the suit under the governing law will properly preclude
summary judgment.” Id. at 248.
The party moving for summary judgment bears the initial burden of informing the
district court of the basis for its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Once the initial burden is met, for an issue on which the nonmoving party will bear the
burden of proof at trial, the nonmoving party must “go beyond the pleadings” and
“designate ‘specific facts showing that there is a genuine issue for trial.’” Id. at 324. It is
not sufficient to “simply show that there is some metaphysical doubt as to the material
facts.” Matsushita Elec. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Nor may the
nonmoving party “merely rely on conclusory pleadings” to withstand the motion. Colan v.
Cutler-Hammer, Inc., 812 F.2d 357, 361 (7th Cir. 1987). Rather, the nonmoving party must
produce “evidence . . . such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson, 477 U.S. at 248. If he fails to do so, “[t]he moving party is ‘entitled to a
judgment as a matter of law.’” Id. at 323.
I. Interference
Nigh first brings a claim for interference with FMLA rights pursuant to 29 U.S.C.
§ 2615(a)(1). An interference claim under § 2615 requires an employee to establish that:
(1) she was eligible for the FMLA’s protections; (2) her employer was covered by the FMLA;
(3) she was entitled to leave under the FMLA; (4) she provided sufficient notice of her

24

intent to take leave; and (5) her employer denied her FMLA benefits to which she was
entitled. Burnett v. LFW Inc., 472 F.3d 471, 477 (7th Cir. 2006). The fifth element -whether the District denied FMLA benefits to which Nigh was entitled -- is the only one at
issue in this case.
A. Failure to Restore to an Equivalent Position
Nigh primarily contends that the District interfered with her FMLA rights by failing
to restore her to an equivalent position when she returned from leave for the second time.
The FMLA entitles an eligible employee to 12 workweeks of leave during any 12-month
period “[b]ecause of a serious health condition that makes the employee unable to perform
the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). An employee
who takes leave under § 2612 must be restored either to the same position held at the time
leave began or to an equivalent position “with equivalent employment benefits, pay, and
other terms and conditions of employment.” 29 U.S.C. § 2614(a)(1). Failure to reinstate
an employee to an equivalent position violates the FMLA’s interference provision,
§ 2615(a)(1). See Breneisen v. Motorola, Inc., 512 F.3d 972, 977 (7th Cir. 2008).
The District first contends that Nigh was restored to an equivalent position,
necessitating dismissal of this interference claim.

Under the FMLA, “[t]he test for

equivalence is strict.” Id. Its implementing regulations provide that:
An equivalent position is one that is virtually identical to the
employee’s former position in terms of pay, benefits and
working conditions, including privileges, perquisites and status.
It must involve the same or substantially similar duties and
responsibilities, which must entail substantially equivalent skill,
effort, responsibility, and authority.
29 C.F.R. § 825.215(a).
25

Even so, the equivalence requirement “does not extend to de minimis, intangible, or
unmeasurable aspects of the job.” 29 C.F.R. § 825.215(f). For example, in Montgomery v.
Maryland, the plaintiff contended that before her leave, her duties were “truly
administrative,” but afterward, she was relegated to the “simplest” of clerical tasks like
answering phones and typing correspondence. Montgomery v. Maryland, 266 F.3d 334, 34142 (4th Cir. 2001), aff’d on remand, 277 F. App’x 17 (4th Cir. 2003). The Fourth Circuit
rejected that argument, holding that “[t]he difference between ‘truly administrative’ tasks
and ‘answering the phone, taking messages, typing simple correspondence, and the like’ is
not of sufficient magnitude, especially given the equivalent pay grade, increment level, and
administrative classification, to constitute an FMLA violation.”

Id. at 342.

The court

likewise rejected the plaintiff’s loss of her own workspace as de minimis and, ultimately,
affirmed the district court’s dismissal of her claim. Id.
The District would analogize this case to Montgomery, pointing out that (1) Nigh’s job
title did not change upon her return; (2) her pay and benefits remained the same; and (3)
she did not lose any opportunities for promotion.

While several of Nigh’s duties were

reassigned upon her return -- with Cox taking over in the areas of building and grounds,
finance, food service, staff evaluations and the 21st Century grant -- the District
characterizes those changes to her duties as de minimis, particularly given that, as in
Montgomery, her title, pay and other terms and conditions of employment remained the
same.
While there are aspects of this case analogous to Montgomery, Nigh does not depend
on the sort of hazy distinction between “truly administrative” and “clerical” work on which
the Montgomery plaintiff relied. Rather, Nigh lost responsibility for, and authority over, all
26

finance, personnel and building and grounds matters. In fact, the Board later reprimanded
Nigh for authorizing paid time off because it had reassigned authority over such matters to
Cox, strongly suggesting that her status had changed, even if her nominal title was the same.
Additionally, she was excluded from hiring decisions; she no longer received meeting
agendas; and she missed at least one committee meeting because it was no longer clear that
she was invited.
These changes in her authority and responsibilities are sufficient to establish a
genuine dispute of fact as to whether defendant failed to restore Nigh to an equivalent
position after her leave. See Arrigo v. Link Stop, Inc., 975 F. Supp. 2d 976, 987 (W.D. Wis.
2013) (“loss of management responsibilities could be significant in itself to show that [an
employee] was not returned to an equivalent job”); Brown v. Hartt Transp. Sys., Inc., 725 F.
Supp. 2d 210, 230 (D. Me. 2010) (genuine dispute of material fact as to equivalency of
position post-leave where employee lost management authority and involvement with his
former accounts was reduced).
The District also argues that even if Nigh were not restored to an equivalent position,
the decision was entirely unrelated to her leave and cannot constitute an FMLA violation.
Legally speaking, the District is correct that “[t]here are limitations on an employer’s
obligation to reinstate an employee.” Mitchell v. Dutchmen Mfg., Inc., 389 F.3d 746, 748 (7th
Cir. 2004). “An employee has no greater right to reinstatement or to other benefits and
conditions of employment than if the employee had been continuously employed during the
FMLA leave period.” 29 C.F.R. § 825.216(a). In Kohls v. Beverly Enters. Wis., Inc., 259 F.3d
799 (7th Cir. 2001), the Seventh Circuit explained:

27

Clearly, an employee may not be fired because she took leave –
that would be in direct violation of the statute. See 29 U.S.C.
§ 2615(a)(1). However, an employee may be fired for poor
performance when she would have been fired for such
performance even absent her leave.
Id. at 805. Thus, once an employee has established she is entitled to the FMLA benefit she
claims, “[t]he employer may then present evidence to show that the employee would not
have been entitled to her position even if she had not taken leave.” Id. at 804. Moreover, it
is then the employee’s burden to “overcome the employer’s assertion, as she carries the
burden of demonstrating her right to the entitlement.” Id.
Furthermore, even the fact that FMLA leave allows an employer to discover
performance deficiencies does not preclude the employer from basing a future adverse
action on those deficiencies. See, e.g., Schaaf v. Smithkline Beecham Corp., 602 F.3d 1236,
1242 (11th Cir. 2010) (“[T]he [FMLA’s] purpose is not implicated in the least if an
employee’s absence permits her employer to discover past professional transgressions that
then lead to an adverse employment action against the employee.”); Kohls, 259 F.3d at 806
(“The fact that the leave permitted the employer to discover the problems [cannot] logically
be a bar to the employer’s ability to fire the deficient employee.”).
Defendant relies on this framework, arguing that Nigh would not have been entitled
to her position regardless of FMLA leave due to: (1) her deficient performance; and (2) her
“request for help” at the November 2, 2011 meeting, when she recommended hiring a
business manager. It further contends that it was free to take adverse action against her
even if it would not have realized how poor her performance was absent her leave. While
cases like Kohls and Schaaf would ordinarily make it difficult for Nigh to overcome the
District’s defense, Nigh accurately points out that this case is different in one crucial aspect:
28

timing.

In both Kohls and Schaaf, the employers discovered the performance issues for

which they ultimately terminated their employees after those employees took their FMLA
leave. See Schaaf, 602 F.3d at 1243 (“Here, the evidence shows that Schaaf was demoted
because of managerial ineffectiveness that revealed itself in full only in her absence[.]”);
Kohls, 259 F.3d at 806 (“[I]t is clear that the employer did not discover many of the
deficiencies in Kohls’ work – particularly with respect to the checkbook – until after Kohls
took leave.”); see also Cracco v. Vitran Exp., Inc., 559 F.3d 625, 635 (7th Cir. 2009)
(interference claim failed where plaintiff “offered no evidence to dispute that the
investigation began, and his shortcomings were discovered, after his leave period
commenced”).
In contrast, here, the District was aware of Nigh’s performance issues months before
she took leave. As early as April of 2011, the Board had identified a number of purported
problems with Nigh’s performance.

By December of 2011, the Board specifically

recognized that Nigh was struggling to complete her Superintendent duties -- including
areas like finance and physical plant management. Nevertheless, the District did not relieve
her of those duties until after she returned from her second FMLA leave in April of 2012.
In Kohls, the Seventh Circuit suggested that a lapse in time between discovery of
deficiencies and demotion may create a genuine dispute of fact in the context of an FMLA
interference claim.
We can imagine circumstances in which the timing of this
decision could lead a fact finder to infer that the employee
would not have been fired absent her taking of leave (if, for
example, a supervisor who had been aware of problems with an
employee did not decide to fire the employee until she took
leave, and the supervisor based the firing on the incidents of
which the employer had already been aware).
29

Kohls, 259 F.3d at 806. These circumstances better fit the District’s actions here. The
Board was well aware of Nigh’s struggles in her role as District Administrator months before
she took her second FMLA leave, but it did not divest her of her authority in that area until
after that leave. In fact, the record indicates that the decision to retain Cox was made the
same day that the Board learned Nigh planned to return from leave in May, and the official
vote to transfer some of her duties to Cox took place the day after she returned.

A

reasonable fact finder might infer, based on that timing, that Nigh would have continued
with her full complement of duties and powers as Principal/District Administrator had she
not taken FMLA leave.
Additional evidence also renders summary judgment on this claim inappropriate. For
example, the District concedes that it initially hired Cox in order to accommodate Nigh’s
absence, not for reasons related to her performance or her memo of November, 2011. This,
too, might allow a reasonable jury to infer that Nigh’s leave, not her performance, caused
the board to assign her duties to Cox after her return.

Cf. Breneisen, 512 F.3d at 978

(reversing grant of summary judgment on interference claim where employee’s job duties
had been distributed to others during leave to accommodate his absence, rather than for
some other business reason). A reasonable trier of fact might find further grounds for such
an inference given comments Lazorik concededly made about believing that Nigh was
“faking” her illness, the behavior of other Board members during Nigh’s second leave and
Cox’s derogatory remarks about Nigh’s lack of long-term illness.

See, e.g., Goelzer v.

Sheboygan Cnty., Wis., 604 F.3d 987, 994 (7th Cir. 2010) (jury could be swayed by
comments “that could suggest frustration with Goelzer’s use of FMLA leave”).

30

This is not to say that the trier of fact will make such an inference. Indeed, there is
ample evidence to infer that responsibilities resulting from combining the dual
responsibilities of principal and district manager in one new position may have proved too
much for Nigh (or anyone else), at least given the District’s expectations, and that its action
in hiring Cox and splitting duties was a recognition of this fact, or at least of Nigh’s
limitations immediately upon her return from her second FMLA leave. But the record can
also support the opposite conclusion, not only because of the suspicious timing and
ambiguous comments from Board Members, but also given that the Board appeared to have
stripped Nigh of her authority in several areas (rather than, for instance, hiring Cox as a
subordinate to aid her in accomplishing all her tasks) and apparently never restored that
authority to her. These competing inferences are what make for a trial. Accordingly, the
District is not entitled to summary judgment on this claim.
B. Non-Renewal
Nigh also contends that defendants interfered with her FMLA rights by using her
leave as a “motivating factor” in the decision to non-renew her contract. Her source of legal
authority is 29 C.F.R. § 825.220, which provides that “employers cannot use the taking of
FMLA leave as a negative factor in employment actions, such as hiring, promotions or
disciplinary actions[.]” See, e.g., Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1125-26
(9th Cir. 2001) (consideration of absences in termination decision actionable if those
absences were covered by the FMLA); Walters v. Mayo Clinic Health Sys.-EAU Claire Hosp.,
Inc., -- F. Supp. 2d --, 2014 WL 549889, at *9 (W.D. Wis. Feb. 11, 2014) (genuine dispute

31

of fact on interference claim exists where plaintiff was disciplined after taking FMLAapproved leave).
Generally, the Seventh Circuit analyzes “motivating factor” claims under the rubric
of retaliation, not interference. See, e.g., James v. Hyatt Regency Chi., 707 F.3d 775, 781 (7th
Cir. 2013); Pagel v. TIN Inc., 695 F.2d 622, 631 (7th Cir. 2012); Breneisen, 512 F.3d at 978
(“[T]he FMLA protects employees from being discriminated or retaliated against for
exercising their FMLA rights. . . . For instance, if an employee takes FMLA leave, an
employer cannot use it as a negative factor in hiring, promotions, or disciplinary actions.”)
(internal citations omitted). Furthermore, other courts have held that claims premised on
termination that occurred some amount of time after leave are better analyzed as retaliation
claims. See, e.g., Seeger v. Cincinnati Bell Telephone Co., LLC, 681 F.3d 274, 283 (6th Cir.
2012) (district court properly confined analysis to retaliation theory where plaintiff received
all leave to which he was entitled, returned to work, was reinstated and was terminated
some weeks later); Stallings v. Hussmann Corp., 447 F.3d 1041, 1051 (8th Cir. 2006)
(district court properly analyzed claim as one for retaliation, not interference, where
plaintiff received leave, returned to work, and was terminated more than a month later).
This court need not rely on the above authority in precluding Nigh from pursuing a
separate interference claim based on her non-renewal, however, because even if she were
permitted to do so, Nigh has not produced enough evidence to survive summary judgment
on that theory. As support, Nigh points only to the letter and attachments substantiating
the Board’s intent to non-renew. (See Peter Reinhardt Aff. Dep. Ex. 50 (dkt. #44-39).)
The summary document in the attachments details a number of ostensible “[f]ailure[s] to
meet the District’s Performance Expectations,” one of which reads:
32

There have been Board Meetings where Ms. Melissa Nigh has
not been present and has not communicated to the Board
beforehand or afterward as to the reason for her absence.
(Id. at Dep. Ex. 51 (dkt. #45) 2-3.) Nigh argues that this statement is an admission that
defendants improperly considered her absence during FMLA as a reason to non-renew her
contract.
Even if this statement alone were sufficient to support an interference claim,12 there
is no evidence that the statement refers to her absences during leave. Indeed, Nigh missed
board meetings not only while on FMLA leave, but also when she was ill generally. (See
Def.’s Resp. PPFOF (dkt. #80) ¶¶ 411-12.)

She has presented no evidence that the

statement in Butler’s letter refers to any of her FMLA-protected absences, rather than those
absences for which she was simply ill.13
Nor would such an inference be reasonable on this record.

The statement in

question appears under the subheading “Communication with the Board” and faults Nigh
for missing meetings without communicating the reason for her absence.

(See Peter

Reinhardt Aff. Dep. Ex. 51 (dkt. #45) 2-3.) In contrast, the Board was aware of the reason
for Nigh’s absence during her FMLA leave -- it had, after all, approved both instances of
leave. Perhaps a reasonable jury might infer this statement was intended (or at least could
have been construed) to include Nigh’s FMLA-protected absences with some additional
supporting evidence, but Nigh points to nothing else to support the inference or to build the
missing link between her FMLA leave and the Board’s criticisms. The court is not required

There is little case law on the question, although the Ninth Circuit appears to have taken an
employee-friendly approach, noting that “the regulations clearly prohibit the use of FMLA-protected
leave as a negative factor at all.” Bachelder, 259 F.3d at 1131 (emphasis in original).
13
Nigh also does not argue that these other absences were protected by the FMLA.
12

33

to scour the record to “piece together appropriate arguments” on Nigh’s behalf. Little v.
Cox’s Supermarkets, 71 F.3d 637, 641 (7th Cir. 1995).
Nigh could also conceivably argue (although she did not) that the other evidence
adduced of improper motivation goes to support her interference claim. As will be discussed
below, see discussion infra Section II, Nigh has in fact presented sufficient evidence for a
reasonable jury to find that the District retaliated against her for exercising her right to
FMLA leave, and she is free to argue in that context that the summary document statement
supports such an intent.

But that statement alone is not enough to build an entirely

separate claim -- one for which she need not prove motivation, Kauffman v. Fed. Exp. Corp.,
426 F.3d 880, 884 (7th Cir. 2005) -- premised on the same adverse employment action.
Accordingly, while Nigh will be allowed to challenge her termination under the standard of
retaliation, which the parties have briefed extensively and in support of which she cites
significant evidence, she may not pursue a separate interference claim for non-renewal based
only on the summary document statement.
II. Retaliation
Finally, Nigh claims that the District retaliated against her for exercising her rights
under the FMLA in violation of 29 U.S.C. §§ 2615(a)(2) and (b). See Kauffman, 426 F.3d at
884 (“We have construed [§§ 2615(a)(2) and (b)] to create a cause of action for
retaliation.”).

Courts evaluate a claim of FMLA retaliation the same way as claims for

retaliation under other employment statutes. Buie v. Quad/Graphics, Inc., 366 F.3d 496, 503

34

(7th Cir. 2004). Thus, to prove retaliation, Nigh may proceed under the direct or indirect
methods of proof.14 Id.
In this case, Nigh chooses to proceed under the direct method of proof only. (See
Pl.’s Br. Resp. (dkt. #78) 16.) The direct method requires that Nigh “present evidence of
(1) a statutorily protected activity; (2) a materially adverse action taken by the employer;
and (3) a causal connection between the two.” Caskey v. Colgate-Palmolive Co., 535 F.3d 585,
593 (7th Cir. 2008). Taking FMLA leave is indisputably a statutorily protected activity.
The parties also agree that the decision to non-renew Nigh’s contract in December of 2012
constitutes a materially adverse employment action. Accordingly, the central question on
summary judgment is whether Nigh has presented sufficient evidence to permit a reasonable
trier of fact to conclude that her non-renewal “had a discriminatory motivation.” Lewis v.
Sch. Dist. #70, 523 F.3d 730, 741 (7th Cir. 2008) (quoting Rudin v. Lincoln Land Cmty.
Coll., 420 F.3d 712, 721 (7th Cir. 2005)).
As a preliminary matter, the proper standard of causation remains unclear. In Lewis
v. School District #70, the Seventh Circuit held that a plaintiff in an FMLA retaliation case
“need not prove that retaliation was the only reason for her termination; she may establish
an FMLA retaliation claim by ‘showing that the protected conduct was a substantial or
motivating factor in the employer’s decision.’” Id. at 741-42 (emphasis in original) (quoting
Culver v. Gorman & Co., 416 F.3d 540, 545 (7th Cir. 2005)). However, defendant argues
that the Supreme Court’s recent decision in University of Texas Southwestern Medical Center v.

In recent years, the Seventh Circuit has questioned the utility of continuing to separate the
inquiry on summary judgment into the “direct” and “indirect” methods. See Coleman v. Donahoe, 667
F.3d 835, 862-63 (7th Cir. 2012) (Wood, J., concurring) (“[I]t seems to me that the time has come
to collapse all these tests into one.”). While sympathetic to this position, the court will continue to
apply the separate methods as called for by existing precedent unless and until directed otherwise.
14

35

Nassar, 133 S. Ct. 2517 (2013), abrogates Lewis and raised the bar for proving causation in
FMLA retaliation claims. In Nassar, the Court held that to prevail on a Title VII claim of
retaliation, a plaintiff must meet the “traditional principles of but-for causation,” and that
showing the protected activity was merely a “motivating factor” in a retaliatory action was
insufficient. Id. at 2533. In defendant’s view, because the framework for FMLA retaliation
claims derives from the Title VII context in the first place, see Buie, 366 F.3d at 503, the
new rule of Nassar applies equally to FMLA retaliation claims.
Authority on this question is scarce.

At least two districts in this circuit have

continued to apply the rule of Lewis even post-Nassar. See, e.g., Kennedy v. U.S. Postal Serv.,
No. 2:10-CV-0279-PPS-PRC, 2014 WL 1047820, at *9 (N.D. Ind. Mar. 17, 2014); Perry v.
Bath & Body Works, LLC, -- F. Supp. 2d --, No. 2:11-CV-240-PRC, 2014 WL 308838, at
*10 (N.D. Ind. Jan. 28, 2014); Williams-Grant v. Wis. Bell, Inc., No. 11-C-1051, 2013 WL
5447952, at *9 (E.D. Wis. Sep. 30, 2013); see also Keiju Pu v. Columbia Coll. Chi., 934 F.
Supp. 2d 964, 975 (N.D. Ill. 2013) (applying rule of Lewis despite Supreme Court decision
in Gross v. FBL Financial Services, Incorporated, 557 U.S. 167 (2009), which held that but-for
causation was applicable in the ADEA and ADA contexts).

None of those courts cites

Nassar, however, giving them limited persuasive value.
A few courts have considered Nassar’s impact in the FMLA context, but those
decisions yield no consensus, with most courts -- including the Court of Appeals for the
Seventh Circuit -- declining to resolve the question definitively. See Malin v. Hospira, Inc.,
No. 13-2433, slip op. at 18 n.3 (7th Cir. Aug. 7, 2014); Ion v. Chevron USA, Inc., 731 F.3d
379, 390 (5th Cir. 2013) (“We emphasize that we need not, and do not, decide whether
Nassar’s analytical approach applies to FMLA-retaliation claims and, if so, whether it
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requires a plaintiff to prove but-for causation.”); Smith v. Bellsouth Telecommunications, Inc.,
No. 3:12-cv-581-MW/CJK, 2014 WL 505100, at *2 n.5 (N.D. Fla. Feb. 6, 2014)
(“Accordingly, this Court need not determine whether Gross and Nassar impact the analysis
of FMLA retaliation claims.”); Chase v. U.S. Postal Serv., Civil Action No. 12-11182-DPW,
2013 WL 5948373, at *9-12 (D. Mass. Nov. 4, 2013) (“[I]rrespective of which standard is
to be applied, Mr. Chase has adduced sufficient evidence to survive summary judgment on
his [FMLA] retaliation claim.”).
Even the courts that do resolve the question do not agree.

Compare Chaney v.

Eberspaecher N. Am., 955 F. Supp. 2d 811, 813 n.1 (E.D. Mich. 2013) (stating that Nassar,
“while informative, did not change any applicable standards” in the FMLA retaliation
context), with Housel v. Rochester Institute of Tech., -- F. Supp. 2d --, No. 10-CV-6222FPG,
2014 WL 1056576, at *7 (W.D.N.Y. Mar. 17, 2014) (applying Nassar to all retaliation
claims, including FMLA claims).
Given the dearth of clear authority and the parties’ lack of thorough briefing, the
court declines to resolve the question here as well, finding that Nigh can survive summary
judgment -- if barely -- even under the more demanding standard of but-for causation.15
True, the decision to stop the automatic rollover of Nigh’s contract in January of 2012
predated her FMLA leave. At that time, the Board had already indicated that it was “likely”
to initiate the non-renewal process due to serious concerns with Nigh’s performance. Were
those the only facts before the court, Nigh likely could not survive summary judgment. But
it was not until October, after Nigh had exercised her rights under the FMLA, that the

The parties will be allowed to supplement their pretrial submissions to further address the
question of causation should they wish.
15

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Board formally initiated the non-renewal process. During the intervening ten months, a
number of suspicious events took place that might support a finding of discriminatory
animus in the view of a reasonable trier of fact.
For example, during Nigh’s first leave, the Board took away her keys and cut off her
e-mail access. Although the Board contends its motivations were innocent (and they might
well have been), a reasonable factfinder could infer otherwise, given that: (1) Nigh made
clear she found the decision hurtful; and (2) there was no policy governing building and email access during leave. Additionally, the Board began to monitor Nigh’s e-mails, zeroing
in on a “suspicious” spam e-mail and suggesting they did not believe Nigh was legitimately
on FMLA leave. The day after Nigh returned from her first leave, she received a reprimand
for fourteen separate infractions, at least some of which were known to the Board months in
advance, from which one may infer suspicious timing.

While Nigh does not argue the

reprimand itself was a materially adverse employment action, the Board later cited the
contents of that reprimand as one of the reasons underlying its decision to initiate the nonrenewal process. (See Peter Reinhardt Aff. Dep. Ex. 51 (dkt. #45) 1.)
Likewise, during Nigh’s second period of FMLA leave, she noticed that members of
the Board were ignoring her at basketball games, and Ehrhardt indicated he could not talk
to her because there were “eyes watching.”

Defendant again argues that the Board’s

behavior was not motivated by discriminatory animus, pointing to Lazorik’s after-the-fact
explanation that she understood no one should communicate with Nigh during her leave. A
reasonable jury could find this justification mere pretext given that (1) Lazorik has offered
no basis for that belief; (2) it is inconsistent with the Board’s behavior during Nigh’s first
leave, when Sederholm contacted Nigh; and (3) the record contains no contemporaneous
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evidence of that belief. Furthermore, Lazorik made statements that indicated she did not
believe Nigh was actually ill and was instead “faking” her illness, which at least suggests she
may have viewed Nigh with hostility for taking leave.16 Cf. Goelzer, 604 F.3d at 995-96 (oral
derogatory comments regarding FMLA use could support retaliation claim).
Moreover, Cox was hostile to Nigh as she tried to plan her transition back from
leave, informing her that he would be keeping her office and (crediting Nigh’s account as
the court must at summary judgment) that she should “just stay home” and “be done,”
rather than returning to work.

Finally, the Board stripped her of many of her duties

immediately following her return -- and then issued a negative performance review based in
part on her failure to “develop” in the areas over which she no longer had authority.
Viewing all these facts in the light most favorable to Nigh, the court concludes that a
reasonable jury could certainly find that her leave was a “motivating factor” in the Board’s
decision to non-renew her contract. While a closer question, the court concludes she might
also convince a reasonable jury that her leave was a but-for cause of the non-renewal. As the
Board points out, there is certainly significant evidence of performance deficiencies in the
record as well, and those deficiencies cannot be ignored, especially since Nigh concedes that
she was struggling to complete certain aspects of her position. But “[a] single event can
have multiple but-for causes,” Malin, No. 13-2433, slip op. at 18 n.3, and given the
evidence Nigh has adduced to support her retaliation claim, a reasonable jury might find
that the Board would not have non-renewed Nigh’s contract but for her FMLA leave -- even

The District seeks to dismiss these comments as irrelevant, but the cases it cites -- which hold that
courts do not examine legislative bodies’ motivations “when a due process claim arises from an
employee’s termination during a reorganization,” Campana v. City of Greenfield, 38 F. App’x 339, 341
(7th Cir. 2002) -- are wholly inapplicable.
16

39

if, in the end, her performance deficiencies played just as great a role in the Board’s
decision.
Perhaps, had Nigh not taken leave, she would still have been non-renewed at the end
of her contract term.

The District is free to argue as much at trial, and it has ample

evidence to support its argument. But it is also possible that Nigh’s struggles in her District
Administrator capacity would not alone have been enough to persuade the Board to
terminate her employment, particularly since she continued to receive reasonably positive
remarks on her performance as a principal and complied with most of the expectations given
to her in her second performance evaluation. Indeed, the Board was careful to leave open
the possibility of her improving and being renewed until after she took FMLA leave, at
which point the door was, at least arguably, precipitously closed. In any event, Nigh has
produced enough evidence to allow her to so argue. As a result, defendant’s motion for
summary judgment on the retaliation claim will also be denied.’

ORDER
IT IS ORDERED that:
1) Defendant School District of Mellen’s motion for summary judgment (dkt. #16)
is GRANTED IN PART and DENIED IN PART consistent with the opinion
above;
2) Plaintiff Melissa Nigh’s motion to correct proposed finding of fact 255 (dkt. #87)
is GRANTED; and

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3) The parties may supplement their pretrial submissions with a brief on the proper
standard of causation for analyzing Nigh’s retaliation claim. Any such submission
should be filed no later than October 3, 2014. There will be no response or reply.
Entered this 25th day of September, 2014.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge

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