In the

United States Court of Appeals

For the Seventh Circuit

No. 00-4271

Karen Horwitz,

Plaintiff-Appellant,

v.

Board of Education of Avoca School District 

No. 37, John W. Sloan, Venette Biancalana,

and Dorothy Ballantyne,

Defendants-Appellees.

Appeal from the United States District Court

for the Northen District of Illinois, Eastern Division.

No. 98 C 6490--George W. Lindberg, Judge.

Argued June 8, 2001--Decided July 26, 2001

 Before Flaum, Chief Judge, and Bauer and

Kanne, Circuit Judges.

 Flaum, Chief Judge. Karen Horwitz began

teaching full time at Avoca West

Elementary School when the 1993 to 1994

school year began and continued to do so

until she was terminated in April of

1999. Horwitz has raised numerous claims

against the Board of Education of Avoca

School District No. 37 (the "Board"), Dr.

John W. Sloan, Dr. Venette Biancalana,

and Dorothy Ballantyne. She is appealing

a variety of decisions made by the

district court that resulted in her case

not culminating in a trial. For the

reasons stated herein, we affirm. 

I. Background

 The Board hired Horwitz for the 1993 to

1994 school year, when she was 48 years

old, to teach the fourth grade.

Ballantyne at all times relevant to this

case was president of the Board.

Horwitz’s relationship with the school

principal--Dr. Biancalana--and district

superintendent--Dr. Sloan--was apparently

good throughout her first year at Avoca

West. During Horwitz’s second year, 1994

to 1995, the parents of at least three

children in Horwitz’s class complained

about her. One parent in particular, Mrs.
D., expressed strong dissatisfaction with

Horwitz’s treatment of her child and

subsequently Mrs. D. and Horwitz

apparently engaged in a heated

conversation over the matter.

Nevertheless, Dr. Biancalana and Dr.

Sloan recommended in April of 1995 that

Horwitz receive tenure. The Board shortly

thereafter voted to grant Horwitz, who at

the time was 50 years old, tenure. Dr.

Biancalana scheduled a meeting with

Horwitz on June 7, 1995 to address some

of the problems that occurred during the

1994 to 1995 school year, including the

incident between Horwitz and Mrs. D; Hor

witz abruptly left in the middle of the

meeting. The next day, Dr. Biancalana

sent Horwitz a letter informing her that

her "behavior was an exhibition of gross

insubordination" and that gross

insubordination can serve as a ground for

dismissal. Dr. Biancalana followed up her

letter with a memo outlining the various

performance problems that she had hoped

to discuss during their June 7 meeting.

Horwitz subsequently wrote Dr. Biancalana

a rebuttal letter explaining that her

heart condition contributed to her

leaving the meeting suddenly, but she did

state, "I admit your allegations that I

became highly distressed during the

meeting and that I would no longer listen

to what you had to say. The reason for my

distress was that you were assuming the

truth of statements made by other staff

members about my behavior while I was

speaking on the telephone with [a

parent]." More than a year later, in-midNovember of 1996, Horwitz had a meeting

with Dr. Sloan, wherein they discussed

concerns relating to an election project

and Horwitz also recounted incidents

where she believed teachers were being

discriminated against based on their age.

Horwitz alleges that in response to her

complaints, Dr. Sloan told her that he

would make miserable the life of any

person who escalated any issue and that

he was good at escalating an issue. The

defendants dispute that Dr. Sloan ever

made such a comment. On June 16, 1997,

Horwitz filed her first charge of age

discrimination with the Equal Employment

Opportunity Commission ("EEOC").

 The 1997 to 1998 school year was no less

contentious. Horwitz was reassigned, over

her objection, from teaching fourth grade

to teaching fifth grade that year. In

October of 1997, while the School Board
campaign season was taking place, Horwitz

submitted an essay criticizing the school

district and its administrators to

Wilmette Life. Although the essay was not

published in print, it was posted on the

internet. Horwitz’s essay discussed how

school administrators condoned

inappropriate actions and encouraged age

discrimination. More specifically, she

noted that Dr. Sloan "warned" her that he

would make miserable the life of anyone

who escalated any issues in the district.

In January of 1998, Horwitz requested

that the Avoca School Board investigate

the allegations of wrongdoing that she

had asserted in her essay. The Board

instead directed Horwitz to engage in

mediation with Dr. Sloan and Dr.

Biancalana. Horwitz, in a March 9th

written response, expressed her

unwillingness to partake in mediation.

Rather, she demanded the Board pursue an

investigation into her complaints

concerning the school district, as she

believed such an exercise would lead to

an admission of wrongdoing on the Board’s

part and an apology to her. Horwitz

stated in her letter to the Board, "Your

administrators have psychologically raped

me and discriminated against me for over

three years and I will not accept

anything less than an admission of their

harassment along with an apology." The

Board did not initiate an investigation

as Horwitz demanded, but rather issued

its first notice of remedial warning on

April 20, 1998 concerning Horwitz’s

conduct. The notice detailed four areas

in which Horwitz needed to improve to

avoid dismissal, which included: (1)

following the Board’s directive to

participate in mediation with Dr.

Biancalana and Dr. Sloan; (2) cease

making false allegations concerning the

conduct and actions of Dr. Biancalana,

Dr. Sloan, and other school district

personnel; (3) behave professionally when

dealing with Dr. Biancalana and follow

her directives; and (4) work

cooperatively with other faculty members,

educational support personnel, and

outside support staff; cease to engage in

"conduct and actions which falsely cast

aspersions on the knowledge and abilities

of other faculty and staff members;" and

raise legitimate concerns in an

"appropriate and professional manner."

After receiving the notice of remedial

warning, Horwitz did comply with the

Board’s directive to participate in
mediation with Dr. Biancalana and Dr.

Sloan.

 The end of the 1998 school year

brought about another confrontation

between Horwitz and the school district.

Horwitz did not report to school on April

16, 1998 and her husband in a letter

dated the same day informed Dr.

Biancalana that she was ill and a doctor

advised that she not return to work for a

period of time. Her doctors recommended,

Mr. Horwitz wrote, that "she remove

herself from her extremely hostile work

environment which may have a negative

impact on her medical condition." He also

informed Dr. Biancalana that until

Horwitz felt better, she was to have "no

contact with any members of the AVOCA

School District Staff" and that "lesson

plans will have to be completed for her

class" during her absence. In late April,

Horwitz desired to return to teaching.

The school learned through information

provided by Horwitz’s treating doctor

that she had kidney and heart problems

and the doctor believed that the

extremely hostile working environment at

Avoca West was negatively affecting

Horwitz’s medical condition. Dr. Sloan

requested that Horwitz undergo both a

physical and psychological exam prior to

returning to her teaching position.

Horwitz underwent the physical exam and

returned to work in May of 1998, as it

was agreed that she could complete the

psychiatric examination before the next

school year began. On June 23, 1998,

Horwitz filed a second charge with the

EEOC alleging that she had experienced

retaliation for filing her initial EEOC

charge. 

 The summer of 1998 was not without some

additional tension between Horwitz and

the school district. Dr. Biancalana

during the summer asked Horwitz to return

an audio tape of a conversation between

Horwitz, Dr. Biancalana, and the parents

of a student. She claimed that the tape

needed to be returned because it

constituted a confidential student record

and that the school district was

responsible for maintaining the custody

and confidentiality of all copies of the

record. By the middle of the summer, July

of 1998, Horwitz had not provided the

audio tape to the school and had failed

to undergo a psychological exam. As a

consequence, the Board issued on July 15,
1998, a second notice of remedial warning

instructing Horwitz to return all of the

audio tapes, as she had returned only one

copy of the tape recording, and to

undergo the psychological examination

that the school district requested.

Eventually, Horwitz did undergo the

psychological evaluation. 

 The 1998 to 1999 school year was when

the Board dismissed Horwitz. The EEOC

sent Horwitz a notice of right to sue,

dated September 2, 1998, based on the two

charges she filed with them. Horwitz

pursued her right to sue by filing a

complaint against the Board and various

other individuals in the Northern

District of Illinois on October 16, 1998.

Notwithstanding these events, a third

notice of remedial warning was issued by

the Board on January 5, 1999, relaying to

Horwitz that she needed to remedy certain

conduct deficiencies. The notice

discussed nine particular issues, ranging

from Horwitz’s failure to work

cooperatively with other faculty and

staff to her unwillingness to follow

directives put forward by principal Dr.

Biancalana. The Board expressed in its

notice that it was unhappy with Horwitz’s

"unprofessional, insubordinate and

unsatisfactory conduct," a sentiment the

Board had previously articulated in the

first and second notices of remedial

warning. Horwitz did not report to school

on March 16, 1999 and informed Dr.

Biancalana in a March 19th letter that

she would not be able to teach through at

least April 16th due to a medical

condition and that a substitute would

have to prepare lesson plans after March

22nd. On March 23rd, Dr. Sloan wrote

Horwitz a letter requesting that she

provide him with certification from her

doctor explaining the reason for her

absence. At this point in time, Horwitz

had accumulated twenty-eight days of sick

leave. Dr. Sloan on March 26th and April

6th again asked Horwitz for a doctor’s

certification. Finally, on April 14th,

Horwitz sent Dr. Sloan a letter from her

treating physician, Dr. Ciganek. Dr.

Sloan, however, wrote another letter to

Horwitz explaining that the note from Dr.

Ciganek was not sufficient, as it did not

adequately explain the medical reason for

her absence. Dr. Ciganek did provide the

school district with more specific

information concerning Horwitz’s

condition in a letter dated April 22nd.
According to Horwitz, an episode of

depression caused her to be absent from

school. In late April, Dr. Sloan

recommended to the Board that Horwitz be

dismissed for her continuing

unprofessional and insubordinate

behavior. On April 23rd, the Board

reviewed Dr. Sloan’s recommendation and

voted to terminate Horwitz.

 At the summary judgment stage, the

district court ruled in favor of the

defendants on the following claims: (1)

Age Discrimination in Employment Act

("ADEA"); (2) retaliation in violation of

the ADEA; (3) Family Medical Leave Act

("FMLA"); and (4) defamation./1 Prior

to the summary judgment ruling, the

district court dismissed Horwitz’s 42

U.S.C. sec. 1983 claim. Horwitz now

appeals asking us to reconsider the

district court’s summary judgment and

motion to dismiss decisions.

II. Discussion

A. ADEA

 We review the district court’s grant of

summary judgment de novo, construing all

of the facts and reasonable inferences

that can be drawn from those facts in

favor of the nonmoving party. See Central

States, Southeast & Southwest Areas

Pension Fund v. Fulkerson, 238 F.3d 891,

894 (7th Cir. 2001). A grant of summary

judgment is appropriate if the pleadings,

depositions, answers to interrogatories,

admissions, and affidavits leave no

genuine issue of material fact, and the

moving party is entitled to a judgment as

a matter of law. Fed.R.Civ.P. 56(c). 

 The ADEA prohibits an employer from

discriminating against an individual on

the basis of his or her age. 29 U.S.C.

sec. 623(a). An employee must be at least

40 years of age to pursue an age

discrimination claim. 29 U.S.C. sec.

631(a). "To succeed on a discrimination

claim under the ADEA, a plaintiff must

show that her termination or other

adverse employment action would not have

occurred ’but for’ her employer’s motive

to discriminate on the basis of her age."

Fuka v. Thomson Consumer Elecs., 82 F.3d

1397, 1402 (7th Cir. 1996). Although age

discrimination can be proved through

either the direct method or the indirect

burden-shifting method of proof outlined
in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973), Horwitz chose to proceed

under the latter method. See Fuka, 82

F.3d at 1402. McDonnell Douglas sets

forth a three-step inquiry. The first

step entails establishing by a

preponderance of the evidence a prima

facie case of discrimination. See Adreani

v. First Colonial Bankshares Corp., 154

F.3d 389, 394 (7th Cir. 1998). To build a

successful prima facie case, Horwitz must

show that: (1) she falls within the

protected age group-- that is, she is at

least 40 years old; (2) she performed her

job satisfactorily; (3) despite her

satisfactory performance, she suffered a

materially adverse employment action; and

(4) younger employees situated similarly

to the plaintiff were treated more

favorably. See id.; see also Fisher v.

Wayne Dalton Corp., 139 F.3d 1137, 1141

(7th Cir. 1998). "The Supreme Court has

clarified that an ADEA plaintiff who

shows that he was replaced by someone

substantially younger need not prove that

the replacement is outside the protected

class." Adreani, 154 F.3d at 394

(internal citations and quotation marks

omitted). If Horwitz had made out a prima

facie case, a presumption of

discrimination would arise, and the

burden would shift to the Board/2 to

articulate a non-discriminatory reason

for its materially adverse employment

action. Id. Horwitz would still have the

opportunity to prove by the preponderance

of the evidence that the legitimate

reasons offered by the Board were not its

true reasons, but were pretext for

discrimination. Id. 

 There is no dispute about whether

Horwitz falls within the protected age

group, as the Board hired her when she

was 48 years old to teach the fourth

grade for the 1993 to 1994 school year.

The district court found that Horwitz

failed to establish a prima facie case of

age discrimination because she had not

demonstrated that younger teachers were

treated more favorably than she. We

concur with the district court’s

assessment. Horwitz alleges that she was

excluded from the election, newspaper,

and mentoring projects, even though

younger teachers participated in such

activities. Further, she asserts that her

transfer from teaching fourth grade to

teaching fifth grade, over her objection,

shows that the school favored younger
teachers. Horwitz claims that Dr.

Biancalana’s decision in the fall of 1996

to give the chairmanship of the Language

Arts Committee to a younger teacher is

yet another example of how she was

treated in an unfavorable manner because

of her age. Horwitz contends that this is

especially true since she has a masters

degree and was the only certified reading

specialist on staff, whereas the

individual chosen for the chair position

did not have a masters degree. According

to Horwitz, there were other incidents of

age discrimination as well. For instance,

Horwitz claims that in August of 1996,

Dr. Biancalana hired a new part-time

kindergarten teacher who was over 40

years of age, and told her that this was

something that she did not usually do.

Also during the same period, Horwitz

alleges that Dr. Biancalana told one of

the younger teachers that she hoped that

the teacher did not mind working with an

older person. Horwitz asserts that two

other older teachers, Peter Lanners, who

was born on November 12, 1948, and

Barbara Entin, who was born on October

14, 1951, believed that Dr. Biancalana

discriminated against them based on their

age. Finally, Horwitz reiterates that

when she met with Dr. Sloan in mid-Novem

ber of 1996 to express her distress with

the age discrimination occurring against

older teachers at the school, he warned

her that he would make life miserable for

any teacher who escalated any issue. All

of these incidents taken together,

Horwitz advances, show that younger

teachers were treated more favorably than

older teachers at Avoca West Elementary

School.

 There is no concrete evidence in the

record substantiating Horwitz’s

allegations that younger teachers were

treated more favorably than older

teachers. By way of example, the school

has provided data showing that between

the 1992 to 2000 school years, over 55%

of the teaching staff within the Avoca

School District were over the age of 40.

Dr. Biancalana who began serving as

principal of Avoca West in August of

1993, has hired six teachers as well as a

school nurse and Library Technology

Coordinator over the age of 40. In fact,

Dr. Biancalana since arriving at Avoca

West, has selected twelve mentors, of

whom seven were 40 years of age and

older. Her reviews of the eleven teachers
over 40 years of age at Avoca West are

fairly comparable to her predecessor, in

that she gave nine of the teachers the

same rating, one a lower evaluation, and

one a higher evaluation. Both Lanners and

Entin did not express affirmatively that

they were experiencing age

discrimination. More specifically, when

Lanners was asked during his deposition,

"Did you feel that you were being picked

on because of your age?," he responded,

"I have no idea. I really don’t,"

andlater said, "Maybe I was rubbing

somebody the wrong way." Entin submitted

an affidavit in which she said, "As to

the allegations of Count I dealing with

age discrimination, again, I have no

personal knowledge of such allegations

and personally believe that I have not

been subjected to any age-based conduct

or discrimination as a consequence of the

activities of the Defendants." From an

objective viewpoint, there is evidence

showing that Avoca West hired teachers

who were 40 years of age and older, had

a staff of teachers that was made up of

more than 55% within the protected age

category, and afforded such teachers

mentoring opportunities. One could even

argue that Horwitz’s own case, as she was

hired at the age of 48 and tenured at age

50, is an example of the school

district’s willingness to hire older

teachers and tenure them. Consequently,

the district court’s decision to grant

summary judgment in favor of the Board on

Horwitz’s ADEA claim was proper./3 

B. Retaliation based on the ADEA

 The district court granted summary

judgment in favor of the Board concerning

Horwitz’s retaliation claim under the

ADEA. Keeping in mind the standard we

have outlined regarding our review of a

district court’s summary judgment

decision, we address whether Horwitz has

presented a retaliation case that merits

a jury trial. The ADEA provides that it

is "unlawful for an employer to

discriminate against any of his employees

. . . because such individual . . . has

opposed any practice made unlawful by

this section, or because such individual

. . . has made a charge, testified,

assisted, or participated in any manner

in an investigation, proceeding, or

litigation under this chapter." 29 U.S.C.

sec. 623(d). Horwitz has pursued her

retaliation case based on the ADEA under
the McDonnell Douglas burden-shifting

framework, as is permitted. See Sauzek v.

Exxon Coal USA, Inc., 202 F.3d 913, 918

(7th Cir. 2000). In order to establish a

prima facie case of retaliatory discharge

in violation of the ADEA, Horwitz must

show: (1) she engaged in statutorily

protected activity; (2) she suffered an

adverse employment action; and (3) there

is a causal connection between the

protected activity and the adverse

action. See id.; Vanasco v. NationalLouis Univ., 137 F.3d 962, 968 (7th Cir.

1998). Before proceeding to the last two

steps of the McDonnell Douglas analysis,

we explore whether Horwitz has made out a

prima facie case of retaliation. Although

Horwitz’s underlying discrimination claim

based on the ADEA has failed, she still

may pursue a claim that she was

retaliated against for complaining about

age discrimination. See Place v. Abbott

Labs., 215 F.3d 803, 806 (7th Cir. 2000).

 There is no question as to whether

Horwitz engaged in an activity protected

under the ADEA. She filed her first

charge of age discrimination with the

EEOC on June 16, 1997 and then a second

charge with the EEOC on June 23, 1998

alleging that she had experienced

retaliation for filing her initial EEOC

charge. In response to both of these

charges, the EEOC sent Horwitz a notice

of right to sue, dated September 2, 1998.

Horwitz pursued her right to sue by

filing a complaint against the Board and

various other administrators in the

Northern District of Illinois on October

16, 1998. Clearly, Horwitz engaged in

protected activity under the ADEA when

she filed the two EEOC complaints and the

instant lawsuit. See McClendon v. Indiana

Sugars, Inc., 108 F.3d 789, 796 (7th Cir.

1997). Likewise, it is apparent Horwitz

suffered an adverse employment action

when she was terminated on April 23, 1999

by the Board. See id.; Gleason v. Mesirow

Fin., Inc., 118 F.3d 1134, 1146 (7th Cir.

1997). The district court, however, said

that the "Plaintiff fails to present

evidence such that a reasonable jury

could find that a causal connection

exists between her protected activity and

her dismissal." To establish the last

element in a retaliation case,--that is,

the causal connection requirement--

Horwitz needed to prove that the Board’s

decision to terminate her and the EEOC

charges and current lawsuit were not
wholly unrelated. Vanasco, 137 F.3d at

969. As an initial matter, it is

difficult to infer causation based solely

upon the timing of her termination and

the filing of this lawsuit. That is to

say, we have said that for there to exist

a telling temporal sequence, the

employer’s adverse action should follow

"fairly soon after the employee’s

protected expression." Davidson v.

Midelfort Clinic, Ltd., 133 F.3d 499, 511

(7th Cir. 1998). More than six months

elapsed between the time Horwitz filed

this lawsuit (October 16, 1998) and the

Board terminating her (April 23, 1999).

Such a gap in time between her lawsuit

and her termination cannot establish a

causal connection. See Paluck v. Gooding

Rubber Co., 221 F.3d 1003, 1010 (7th Cir.

2000) (collecting cases); Davidson, 133

F.3d at 511 (collecting cases). 

 Nonetheless, Horwitz is not precluded

from coming forward with other evidence

supporting the casual connection element.

Id. Horwitz attempts to argue that there

is a causal connection between her

protected activity and termination by

reciting many of the facts that we have

already discussed in the background and

ADEA sections of this case. For instance,

Horwitz argues that she met with Dr.

Sloan in mid-November of 1996 to address

her concerns about age discrimination at

Avoca West and he responded by remarking

that he would make a staff member’s life

miserable if he or she escalates an

issue. She claims that shortly thereafter

she was moved from teaching fourth grade

to teaching fifth grade over her

objection. In June of 1997, she filed her

first EEOC charge and three months later

she was criticized for being allegedly

uncooperative and told to list

cooperation as a goal for the next school

year. Her essay was posted on the

internet in the fall of 1997, and after

this, she requested that the Board

investigate her claims of age

discrimination. The Board refused to

investigate her concerns and instead

issued its first notice of remedial warn

ing. Horwitz advances that she took a

medical leave in April of 1998 and that

she was improperly asked to see the Board

physician, an internist, before she could

return to work and later the Board said

she had to see a psychiatrist. In June of

1998, she filed her second EEOC charge

and then the Board issued another notice
of remedial warning concerning her

behavior in July of 1998. The Board when

it terminated Horwitz relied, she

alleges, specifically on 105 ILCS 5/10-

22.4, which states that any teacher who

does not complete a one-year remediation

plan with a satisfactory or better rating

can be dismissed. Horwitz claims that the

Board must have concluded that her

deficiencies were correctable, and thus

since a one-year remediation plan was

mandatory, she urges that we consider the

causation issue in light of this time

frame. Finally, Horwitz asserts that she

should not be prejudiced by the fact that

the Board was told to methodically

prepare a file against her, which does

take time. Horwitz attempts to show that

the timing between the various protected

activities (the two EEOC charges and the

filing of this lawsuit) that she engaged

in and events that occurred immediately

thereafter, which she apparently

perceives as adverse employment actions,

reveals the existence of a causal

connection. Horwitz is unable to label

certain events as adverse employment

actions and tie them to her protected

activities in light of the fact that we

have found that her termination is the

only adverse employment action that she

has suffered. Therefore, all of the

evidence that Horwitz has provided with

relation to the causal connection issue

is merely speculative. Thus, Horwitz

cannot establish the causal connection

element of her prima facie case. 

 In any event, even if Horwitz were able

to present evidence sufficient to

establish a prima facie case of

retaliatory discharge, she has not

successfully shown that the Board’s

proffered reasons for terminating her

were pretextual. The district court found

that the Board had produced evidence of

non-discriminatory reasons for Horwitz’s

termination and that the Board had

pointed to "several occasions of insubor

dination, complaints from parents,

occasions of unprofessional behavior on

the part [of the] Plaintiff towards her

fellow faculty members, administrators

and outside support staff. Defendants

further produce evidence that [the]

Plaintiff failed to adequately prepare

lesson plans for use during her extended

absences and that Plaintiff was not

available for consultation during those

absences." The Notice of Charges and Bill
of Particulars detail Horwitz’s

shortcomings as a teacher--both cite

thirty-one reasons for her termination. 

 Horwitz asserts that the reasons given

for her termination in the Notice of

Charges and Bill of Particulars differ

from the reasons Dr. Sloan gave for her

termination at Horwitz’s unemployment

compensation hearing. Horwitz notes that

the hearing officer asked Dr. Sloan, "In

the final analysis, was she discharged

because of this extended absence or

because during this absence . . . she

failed to comply with policy regarding

lesson plans? Or was it a combination

thereof?," to which Dr. Sloan replied, "A

combination thereof." Furthermore,

according to Horwitz, Dr. Sloan had-handdelivered to her a letter saying the

primary reason for her dismissal was her

absence without sufficient medical

documentation beginning on March 16, 1999

and her failure to supply lesson plans

during this period. Horwitz also alleges

in her brief that the "Defendants’

written evaluations of Plaintiff’s

performance through March, 1997 showered

her with praise and described her as an

’excellent’ employee." Finally, Horwitz

claims that during a hearing before the

Illinois State Board of Education

concerning her dismissal, Dr. Sloan said,

"we needed to build a case" against

Horwitz, rather than stating that the

school desired to document what was

occurring at the time between Horwitz and

the school. All of this, Horwitz asserts,

supports a finding of pretext. 

 Upon reviewing the record, we cannot

conclude that the school district’s

legitimate, non-discriminatory reasons

for terminating Horwitz are pretextual.

For example, Dr. Sloan initially

requested and was allowed to read a

prepared statement at the unemployment

compensation hearing, in which he

summarized how Horwitz over a three-yearperiod "exhibited a pattern of gross

insubordination and unprofessional

conduct." He then noted that she had

refused to follow school district

procedures and policies after being

repeatedly directed to do so in three

written notices to remedy issued by the

Board. "The culminating event," Dr. Sloan

said, "that led to her discharge was . .

. generated by the fact that on March

16th, 1999, Mrs. Horwitz began an
extended absence that would last through

April 23rd, 1999, when she was

terminated." At this point, the hearing

officer interrupted Dr. Sloan and the

dialogue recited above, wherein the

hearing officer posed a question about

Horwitz’s absence and lesson plans, took

place. Dr. Sloan, however, made it clear

initially that there was no sole reason

for the termination of Horwitz and he

never retreated from such a position. Dr.

Sloan, in a letter dated April 21, 1999

that he sent to Horwitz, said: 

Your repeated refusal to respond to the

District’s requests for verification of

the basis for your extended absence from

your full-time teaching duties and your

unprofessional conduct in failing to

communicate with the District’s Principal

regarding lesson plans for substitutes

has adversely affected the District’s

students and has disrupted necessary

planning for students’ educational

programs. Based upon this continued

insubordinate conduct and your

established pattern of unprofessional and

insubordinate conduct as evidenced by

issuance of Three (3) Board Notices of

Remedial Warning, I will submit an

administrative recommendation to the

Board of Education for your termination

as a tenured teacher. 

There is no doubt that Dr. Sloan quite

clearly communicated to Horwitz that her

previous three notices of remedial

warning along with her recent absence and

failure to provide lesson plans for that

period caused him to recommend her

termination to the Board. As for the

comment that Dr. Sloan made during the

hearing before the Illinois State Board

of Education regarding establishing a

case against Horwitz, it is necessary

that we place Dr. Sloan’s comment within

the proper context. The hearing officer

had inquired why it took Dr. Sloan so

long to recommend to the Board that

Horwitz be terminated. Dr. Sloan

responded that the school tried to help

Horwitz and ensure that she would

succeed, but there came a point where it

became apparent she was not going to be

successful, therefore Dr. Sloan remarked,

"[A]t that juncture, as the law requires,

we needed to build a case and document

the harm that she was doing to the school

district, and I believe that we did that,

and unfortunately it was a process, and
the law calls for a process that when

you’re firing a person for incompetence

and unprofessional behavior, you have to

have a wealth of proof and substantiated

documentation to prove that that’s what

is occurring." Dr. Sloan was simply

attempting to account for why it took the

school as long as it did to terminate

Horwitz. We cannot read into Dr. Sloan’s

comment any motive on the school’s part

to fabricate, or put another way, build a

false case against Horwitz. He merely was

explaining the practical realities

involved in removing an employee from the

workplace. While it may be true that Dr.

Biancalana rated Horwitz as an

"excellent" teacher for the 1993 to 1994,

1994 to 1995, and 1996 to 1997 school

years, she also stated in her 1996 to

1997 report that she "would like to see

more emphasis on these areas at the

fourth grade level." The areas Dr.

Biancalana was referring to included

maintaining positive professional

interactions with others and establishing

relationships with colleagues which

reflect mutual respect. Dr. Biancalana

had expressed some unease with Horwitz’s

professional relationships in her 1997

school year evaluation of Horwitz. Prior

to this time, as discussed above, Horwitz

had acted in a grossly insubordinate man

ner when in June of 1995 she abruptly

left a meeting with Dr. Biancalana. As we

have already recounted, the Board issued

its first notice of remedial warning on

April 20, 1998, and two more notices

followed thereafter. Horwitz was

experiencing difficulties in her

interactions with faculty and other

individuals at the school. Her positive

teacher evaluations in no way detract

from such problems. It is quite apparent

that Horwitz has not proven that the

reasons the Board has given for

terminating her are in any way

pretextual. Horwitz’s subjective belief

that the Board’s actions were retaliatory

and that the Board’s claimed reasons for

terminating her are pretextual in nature

does not create a genuine issue of

material fact. See Johnson v. University

of Wisconsin-Eau Claire, 70 F.3d 469,

479-80 (7th Cir. 1995). Thus, the

district court properly entered summary

judgment in favor of the Board on

Horwitz’s retaliatory discharge claim

based on the ADEA. 

C. Retaliation Based on the FMLA
 The district court granted summary

judgment in favor of the defendants with

regard to Horwitz’s FMLA claim. While the

FMLA provides certain substantive

guarantees, "the FMLA also affords

employees protection in the event they

are discriminated against for exercising

their rights under the Act." King v.

Preferred Technical Group, 166 F.3d 887,

891 (7th Cir. 1999). In a case where an

employee is alleging discrimination based

on the FMLA, "[t]he issue becomes whether

the employer’s actions were motivated by

an impermissible retaliatory or

discriminatory animus." Id. Horwitz

asserts that the Board, Dr. Sloan, Dr.

Biancalana, and Ballantyne violated the

FMLA when they terminated her employment

because she took leave to which she was

entitled to under the FMLA. Because

Horwitz alleges retaliatory discharge

under the FMLA, she must establish that

the parties involved engaged in

intentional discrimination. Id. at 892.

Since Horwitz has not provided us with

any direct evidence of discrimination, we

will apply the McDonnell Douglas burdenshifting framework to her claim that the

Board, Dr. Sloan, Dr. Biancalana, and

Ballantyne discriminated against her

because she exercised her rights

guaranteed by the FMLA. Id. To prove a

prima facie case of retaliatory discharge

under the FMLA, Horwitz must show that:

(1) she engaged in a protected activity;

(2) the Board, Dr. Sloan, Dr. Biancalana,

and Ballantyne took an adverse employment

action against her; and (3) there is a

causal connection between her protected

activity and the defendants’ adverse

employment action. Id.

 The district court found that Horwitz

had not provided the school with the

requisite notice to trigger a FMLA claim.

According to the district court, "the

undisputed record reflects that [the]

Plaintiff did not provide information

such that her employers would reasonably

have been on notice as to the severity of

her condition, until after [Dr.] Sloan

had recommended her dismissal, and nearly

a month after her initial absence."

Indeed, Horwitz was absent from school

beginning on March 16, 1999, and after

repeated requests from Dr. Sloan to

provide him with medical certification

regarding her absence, her doctor sent an

apparently inadequate certification on
April 14th. Dr. Sloan then asked for more

detailed information from Horwitz’s

doctor. Horwitz’s doctor did send a more

specific letter, dated April 22nd, to the

school concerning Horwitz’s condition.

However, Dr. Sloan in a letter dated

April 21st (a day before the doctor’s

note was written) had already told

Horwitz that he was recommending to the

Board that she be terminated. We have

stated that an "employee can be

completely ignorant of the benefits

conferred by the Act: it is sufficient

notice if the employee provides the

employer with enough information to put

the employer on notice that FMLAqualifying leave is needed." Stoops v.

One Call Communications, Inc., 141 F.3d

309, 312 (7th Cir. 1998). There is

serious doubt as to whether Horwitz

provided the school with "enough

information" to put it on notice that she

needed a FMLA-qualifying leave.

Nonetheless, we do not need to resolve

this question because as we have

previously discussed, the school has

provided a legitimate, non-discriminatory

reason for terminating Horwitz, which has

not been determined to be pretextual.

Therefore, we affirm the district court’s

decision to enter summary judgment in

favor of the Board, Dr. Sloan, Dr.

Biancalana, and Ballantyne.

D. Defamation Claim

 Initially, we begin by noting that the

district court appropriately decided to

resolve Horwitz’s state law defamation

claim (based on Illinois law), even

though the trial court had settled the

federal issues in her case. The district

court had jurisdiction to decide the

state claim under 28 U.S.C. sec. 1367(a)

because neither side has contended that

the defamation claim does not form part

of the same Article III case or

controversy as the other federal claims

(ADEA; retaliation based on the ADEA;

FMLA) over which the district court did

have original jurisdiction. See Timm v.

Mead Corp., 32 F.3d 273, 276 (7th Cir.

1994). The issue becomes whether the

district court should have decided not to

exercise its jurisdiction over the

defamation claim based upon sec. 1367(c),

which allows a district court not to

assume supplemental jurisdiction over a

claim when it has dismissed all claims

over which it had original jurisdiction.
Judges are permitted the discretion to

determine whether a state law claim

should not be dismissed because of other

considerations like judicial economy,

convenience, fairness, and comity. Id. at

276-77. In this instance, Horwitz’s claim

was ripe, Illinois law regarding

defamation well-settled and

straightforward, the litigation was over

two-years-old, and discovery had been

closed. We see no reason why the district

court should have declined its right to

assert jurisdiction over Horwitz’s statebased defamation claim. 

 Having said that, we turn to the actual

defamation claim itself. The district

court, on immunity grounds, found that

Horwitz’s defamation claim did not

survive the defendants’ motion for

summary judgment. We agree with the

district court’s assertion that the Board

is statutorily immune from Horwitz’s

claim. Illinois law provides that a

"local public entity is not liable for

injury caused by any action of its

employees that is libelous or slanderous

or for the provision of information

either orally, in writing, by computer or

any other electronic transmission, or in

a book or other form of library

material." 745 ILCS 10/2-107. As a

consequence, the Board may not be sued

for the allegedly defamatory remarks it

made about Horwitz. See Meyers v. Board

of Educ. of the City of Chicago, 121

Ill.App.2d 186, 191, 257 N.E.2d 183, 185

(1970); see also Bobkoski v. Board of

Educ. of Cary Cmty. Consol. Sch. Dist.

No. 26, No. 90 C 5737, 1991 WL 10742, at

*5 (N.D. Ill. Jan. 31, 1991). 

 We turn to whether the remaining

defendants--Dr. Sloan, Dr. Biancalana,

and Ballantyne--are also immune from

suit. We have remarked with regard to

this issue that "even if a statement is

defamatory, under Illinois law, the

defendants would have immunity for their

statements made within the scope of their

authority." Klug v. Chicago Sch. Reform

Bd. of Trs., 197 F.3d 853, 861 (7th Cir.

1999) (citing Blair v. Walker, 64 Ill.2d

1, 349 N.E.2d 385 (1976)). The question

we address is whether Dr. Sloan, Dr.

Biancalana, and Ballantyne were acting

within the scope of their official duties

when they made the alleged statements in

question. According to Horwitz, the

individual defendants made defamatory
remarks when they were discussing or

corresponding with parents about her

absence from school that began on March

16, 1999. It is evident that Dr. Sloan,

Dr. Biancalana, and Ballantyne were not

acting in their personal capacities, but

rather their official capacities when

they were attempting to respond to

parents’ concerns regarding Horwitz’s

absence. Likewise, they were acting

within the scope of their official duties

and authority when they corresponded or

spoke with various parents about

Horwitz’s absence. We accord such an

absolute privilege to particular

officials because as the Supreme Court of

Illinois in Blair, 64 Ill.2d at 9, 349

N.E.2d at 388, explained, the United

States Supreme Court in Barr v. Matteo,

360 U.S. 564, 571 (1959) has said that

"[i]t has been thought important that

officials of government should be free to

exercise their duties unembarrassed by

the fear of damage suits in respect of

acts done in the course of those duties .

. . ." Absolute immunity cannot be

"overcome by a showing of improper

motivation or knowledge of the

statement’s falsity, including malice."

Klug, 197 F.3d at 861; see also Blair, 64

Ill.2d at 5-6, 349 N.E.2d at 387. The

district court thus properly granted

summary judgment in favor of the

defendants with regard to Horwitz’s

defamation claim. 

E. Dismissal of the Section 1983 Claim 

 The district court dismissed Horwitz’s

42 U.S.C. sec. 1983 claim. Horwitz

alleged in her complaint that the School

Board "acted with reckless indifference

to plaintiff’s concerns resulting in a

deprivation of her civil rights" and that

Dr. Sloan, Dr. Biancalana, and Ballantyne

were involved in a conspiracy to silence

her "advocacy for her students, discredit

and ultimately terminate her." The

conspiracy resulted in a violation of her

rights and duties as an advocate for

children pursuant to the Individuals with

Disabilities Education Act ("IDEA") and

the First Amendment. Essentially, Horwitz

has brought a First Amendment retaliation

claim under sec. 1983. We review a

district court’s decision to dismiss a

complaint under 12(b)(6) de novo. See

Pleva v. Norquist, 195 F.3d 905, 911 (7th

Cir. 1999). Such a dismissal is proper

only if looking at the pleadings, taking
all the facts alleged by Horwitz to be

true and construing all inferences in her

favor, she fails to state a claim upon

which relief can be granted. Id. 

 First, we assess whether the district

court properly dismissed the sec. 1983

claim against Dr. Sloan, Dr. Biancalana,

and Ballantyne. Horwitz has sued these

defendants in their official and

individual capacities. With respect to

the individual capacity issue, it is

necessary that we consider whether

Horwitz has successfully established a

First Amendment retaliation claim. In

order for Horwitz to establish a sec.

1983 claim based on the First Amendment,

she must demonstrate that: (1) her

conduct was constitutionally protected

and (2) her conduct was a substantial or

motivating factor in the defendants’

challenged actions. See Thomsen v.

Romeis, 198 F.3d 1022, 1027 (7th Cir.

2000). To determine whether Horwitz’s

speech was constitutionally protected, we

need to ask whether her speech addressed

a matter of public concern, and if so,

then we must consider whether Horwitz’s

interest in speaking outweighs the

interest of the state in efficiently

providing services. See Kokkinis v.

Ivkovich, 185 F.3d 840, 843-44 (7th Cir.

1999). To determine whether Horwitz’s

speech was a matter of public concern, we

consider the content, form, context, and

motivation of her speech, although

content is the most important factor. See

Button v. Kibby-Brown, 146 F.3d 526, 529

(7th Cir. 1998). We will assume, without

deciding, that the essay Horwitz

submitted to Wilmette Life in the fall of

1997 criticizing the school district

addresses a matter of public concern and

that her interest in speaking outweighs

the interest of the state in efficiently

providing services. Nonetheless, we

cannot conclude that Horwitz’s essay in

any way was a substantial or motivating

factor in the defendants’ ultimate

decision that Horwitz should be

terminated. The essay was submitted to

Wilmette Life on October 9, 1997 and

Horwitz was terminated on April 23, 1999;

approximately eighteen months had passed

between the time Horwitz had engaged in

speech that was constitutionally

protected and her termination. These two

events are simply too remote in time to

infer that Dr. Sloan, Dr. Biancalana, and

Ballantyne believed that Horwitz’s
termination was necessary based solely on

this essay. As already noted, several

other incidents occurred between Horwitz

and the school between the fall of 1997

and April of 1999 that played a role in

the decision to terminate her. Horwitz

has not successfully mounted a First

Amendment retaliation claim against Dr.

Sloan, Dr. Biancalana, and Ballantyne. 

 Although we have decided that Horwitz’s

sec. 1983 claim against Dr. Sloan, Dr.

Biancalana, and Ballantyne in their

individual capacities has failed, we

still must address whether her claim

survives against these defendants in

their official capacities. Since Horwitz

has brought her suit against these

particular individuals in their official

capacities, "the trial judge must

identify those officials or governmental

bodies who speak with final policymaking

authority for the local governmental

actor concerning the action alleged to

have caused the particular constitutional

or statutory violation at issue." Jett v.

Dallas Indep. Sch. Dist., 491 U.S. 701,

737 (1989). It is necessary to initially

determine which officials have final

policymaking authority because "[o]nce

those officials who have the power to

make official policy on a particular

issue have been identified, it is for the

jury to determine whether their decisions

have caused the deprivation of rights at

issue by polices which affirmatively

command that it occur or by acquiescence

in a longstanding practice or custom

which constitutes the standard operating

procedure of the local governmental

entity." Id. (internal citations and

quotation marks omitted). The district

court said that it did not "even [have]

’bare allegations’ from which to string

together an argument that the individual

Defendants enjoyed final decision-making

authority." Horwitz v. Board of Educ. of

Avoca, No. 98 C 6490, 2000 WL 1100858, at

*3 (N.D. Ill. June 7, 2000). Deciding

whether a specific official has final

policymaking authority is a question of

state law. See Duda v. Board of Educ. of

Franklin Park Pub. Sch. Dist. No. 84, 133

F.3d 1054, 1061 (7th Cir. 1998). We have

said that "nothing in the [Illinois]

School Code allows us to infer that a

superintendent or principal has been

delegated policymaking authority with

respect to personnel decisions." Id.

Furthermore, there is no reason for us to
believe, based on the Illinois School

Code, see 105 ILCS 5/10-12, that the

president of a school board has final

policymaking authority. We agree with the

district court that Horwitz has not

provided us with any basis to conclude,

beyond her own bare allegations, that

either Dr. Sloan (superintendent of

schools of Avoca District No. 37), Dr.

Biancalana (principal of Avoca West

School), or Ballantyne (president of the

Avoca School Board) is a final

policymaker. Horwitz’s claim against Dr.

Sloan, Dr. Biancalana, and Ballantyne in

their official capacities was

appropriately dismissed by the district

court. 

 What remains to be considered is

Horwitz’s sec. 1983 claim against the

Board. Horwitz’s sec. 1983 claim against

the Board, which is an agency of the

municipal government, see Smith v.

Chicago Sch. Reform Bd. of Trs., 165 F.3d

1142, 1148 (7th Cir. 1999), may not be

based on respondeat superior. Id. Monell

places the burden on Horwitz to

demonstrate that an official policy or

custom of the Board’s caused her injury.

Id. at 1148-49. Horwitz in her complaint

states, "On several occasions, including

January 1998, the plaintiff or a

representative informed the school board

of the numerous violations of plaintiff’s

rights regarding age discrimination and

deficient educational practices. The

school board maintained a policy of

ignoring such violations in reckless

disregard of the truthful and well

substantiated allegations." Horwitz, in

her complaint, further alleges that the

Board improperly issued its first and

second notice of remedial warning,

inappropriately compelled her to undergo

a psychological exam, and apparently

ordered her not to express her opinion

about special education situations to

parents on the basis that since she was

not certified in special education her

opinion was not authoritative, even

though Horwitz claims she has an

obligation under the IDEA statute to

express her opinion on such matters. The

rest of her complaint focuses more

exclusively on the behavior of particular

individuals, like Dr. Sloan, Dr.

Biancalana, and Ballantyne. She

acknowledges such an emphasis in her

complaint, when she states, "In engaging

in the acts and conduct aforesaid,
defendants and each of them were acting

under color of the Illinois School Code,

a statute of the State of Illinois. Such

acts and conduct, having been done and

taken by, and with the approval and

ratification of persons in policy-making

positions constitute a policy of

defendant Board Of Education." However, we

have concluded that Dr. Sloan, Dr.

Biancalana, and Ballantyne do not have

policymaking authority and furthermore

the Board cannot be liable for these

defendants’ actions based on respondeat

superior. Quite simply, Horwitz’s

complaint does not adequately explain how

the Board maintained a policy or custom

that was directed at suppressing her

right to free speech. Thus, the claim

against the Board was properly dismissed.

III. Conclusion

 For the reasons stated herein, we AFFIRM

the decision of the district court.

FOOTNOTES

/1 Horwitz challenges the district court’s decision

not to accept her memorandum of law in opposition

to the defendants’ motion for summary judgment.

However, the district court did allow Horwitz to

file a Local General Rule 12(N) statement of

facts. Since we review a grant of summary judgment de novo, a party cannot be prejudiced by a

district court’s decision not to consider her

summary judgment memorandum as long as the court

has addressed the motion on its merits. See

Scaife v. Racine County, 238 F.3d 906, 907 (7th

Cir. 2001); Price v. City of Chicago, 251 F.3d

656, 658 n.2 (7th Cir. 2001). The district court

did contemplate the merits of Horwitz’s case

before granting summary judgment in favor of the

defendants; consequently, Horwitz has not been

prejudiced by the court’s decision not to consider her summary judgment motion. Horwitz in her

brief has raised numerous other claims, not dis

cussed above, that she asserts are worthy of

consideration. Nonetheless, after careful review

of the record, we have determined that these

claims are without merit.

/2 Horwitz has brought her ADEA and retaliation

claim based on the ADEA against only the Board.

She has properly done so, as we have suggested

that there is no individual liability under the

ADEA. See Matthews v. Rollins Hudig Hall Co., 72

F.3d 50, 52 n.2 (7th Cir. 1995); Thelen v. Marc’s

Big Boy Corp., 64 F.3d 264, 267 n.2 (7th Cir.

1995). Horwitz has brought the rest of her

claims--FMLA, defamation, and sec. 1983--against
all of the named defendants (the Board, Dr.

Sloan, Dr. Biancalana, and Ballantyne).

/3 As will be seen in our discussion below concerning Horwitz’s retaliation claim based on the ADEA

in section B, the Board has provided a legitimate, non-discriminatory reason for terminating

her that did not involve pretext. Therefore, even

if we presumed that Horwitz did make out a

successful prima facie case of age discrimination, her ADEA claim would still fail because we

have found that the Board legitimately terminated

her.