In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 14-3125 

TERRENCE PREDDIE, 

Plaintiff-Appellant, 

v.

BARTHOLOMEW CONSOLIDATED SCHOOL

CORPORATION, 

Defendant-Appellee. 

____________________ 

Appeal from the United States District Court for the 

Southern District of Indiana, Indianapolis Division. 

No. 1:12-cv-00995-TWP-DML — Tanya Walton Pratt, Judge. 

____________________ 

ARGUED APRIL 9, 2015 — DECIDED AUGUST 24, 2015 

____________________ 

Before FLAUM, RIPPLE, and WILLIAMS, Circuit Judges. 

PER CURIAM. Terrence Preddie worked as a fifth-grade 

teacher at Columbus Signature Academy-Codrea Elementary School—part of the Bartholomew Consolidated School 

Corporation (“BCSC”)—during the 2010–2011 school year. 

After Mr. Preddie was absent twenty-three times, the BCSC 

did not renew his contract. Mr. Preddie is diabetic, and his 

son, Elliot, suffers from sickle cell anemia. Mr. Preddie is al-
2 No. 14-3125 

so African-American. Following the non-renewal of his contract, Mr. Preddie filed suit against the BCSC in state court, 

alleging claims under Title VII of the Civil Rights Act of 

1964, the Americans with Disabilities Act (“ADA”), the Family and Medical Leave Act, (“FMLA”), 42 U.S.C. § 1981, and 

the Civil Rights Acts of 1866, 1871, and 1991. The case was 

removed to the Southern District of Indiana, and the district 

court granted summary judgment in favor of the BCSC on 

all of Mr. Preddie’s claims. We affirm the district court’s 

judgment for the BCSC except as it relates to Mr. Preddie’s 

FMLA claims. With respect to Mr. Preddie’s FMLA interference and retaliation claims, we believe that genuine issues of 

material fact preclude judgment for the BCSC on the present 

record. We therefore reverse the district court’s judgment on 

those claims and remand for further proceedings in the district court. 

I 

BACKGROUND 

A. Facts 

Because the district court entered summary judgment for 

the BCSC, we view the facts in the light most favorable to 

Mr. Preddie, the nonmoving party. See, e.g., Gerhartz v. Richert, 779 F.3d 682, 685 (7th Cir. 2015).1

 

1 In awarding summary judgment to the BCSC, the district court determined that certain statements in Mr. Preddie’s affidavit were inconsistent with his deposition testimony and, therefore, did not consider 

those statements in opposition to the BCSC’s motion for summary judgment. That approach is consistent with our precedent. See, e.g., Russell v. 

(continued...) 
No. 14-3125 3

The BCSC is a public school corporation located in Columbus, Indiana, encompassing several schools, including 

Rockcreek Elementary School (“Rockcreek”) and Columbus 

Signature Academy-Fodrea (“CSA-Fodrea”). In 2009, the 

BCSC hired Mr. Preddie as a second-grade teacher at Rockcreek under a one-year teaching contract. Before his temporary contact expired, Dr. Linda DeClue, the Assistant Superintendent for Human Resources at the BCSC, wrote 

Mr. Preddie a letter advising him that his contract with the 

district would expire in June 2010 and that, if he wished to 

be considered for another position for the following year, he 

would need to submit a new application. At the bottom of 

the letter, Dr. DeClue wrote a short note indicating that the 

BCSC wanted to find a teaching position for Mr. Preddie the 

following year.2 

Dr. Diane Clancy, the principal at CSA-Fodrea, contacted 

Mr. Preddie and asked that he consider applying for a fifthgrade teaching position at CSA-Fodrea for the 2010–2011 

school year. After meeting with Dr. Clancy and submitting 

an application, Mr. Preddie was hired for the position, again 

under a one-year teaching contract. 

As required by BCSC policy, Dr. Clancy completed written evaluations of Mr. Preddie’s performance for each se-

 

(...continued) 

Acme-Evans Co., 51 F.3d 64, 67–68 (7th Cir. 1995) (“Where deposition and 

affidavit are in conflict, the affidavit is to be disregarded ... .”). Mr. 

Preddie does not contest the district court’s ruling, and, therefore, we, 

like the district court, limit our consideration of Mr. Preddie’s affidavit to 

those statements that do not conflict with his deposition testimony. 

2 See R.30-5 (“BCSC doesn’t want to lose you!”). 
4 No. 14-3125 

mester of the 2010–2011 school year. In the first-semester report, Dr. Clancy assessed Mr. Preddie as “Effective” in the 

areas of “Planning and Presenting Organized Instruction,” 

“Assessment,” and “Professional Responsibilities,” and as 

“Needs Improvement” in the areas of “Classroom Management” and “Motivation.”3 

Of specific concern to Dr. Clancy was Mr. Preddie’s failure to leave organized and developed lesson plans for substitute teachers. Dr. Clancy discussed this concern with Mr. 

Preddie in early November 2010, after Mr. Preddie’s return 

from a two-day absence. Mr. Preddie’s son, Elliot, had been 

admitted to Riley Hospital, necessitating Mr. Preddie’s absence from school. According to Mr. Preddie, Dr. Clancy 

told him during this discussion that he could not keep taking time off to care for his son; Dr. Clancy stated: “‘You’ve 

missed a lot of school for yourself. You can’t take off. Is there 

anybody that can go pick up your son or anybody that can 

take care of your son, ‘cause you’ve already missed enough 

days for yourself?’”4

Immediately following this meeting, Mr. Preddie sent 

Dr. Clancy an email that elaborated on his son’s condition: 

As with Elliot, I think that we have a good plan 

moving forward. Thank you for working with 

 

3 R.30-14 at 2. “Effective” and “Needs Improvement” were the only two 

ratings on the BCSC’s evaluation form. Id. The categories on the evaluation form also included “Human Relations and Communication.” Id.

This evaluation area, however, was not filled out on Mr. Preddie’s firstsemester evaluation. 

4 R.50-2 at 5 (Preddie Dep. 36); see also id. at 7 (Preddie Dep. 40). 
No. 14-3125 5

me to make sure that if I have to be gone, my 

students don’t have to suffer. One thing that I 

am not sure of is if you understand the disease 

my son suffers from. I know that sickle cell is a 

disease that mainly affects African Americans 

and it is something that you don’t see in Columbus often. Sickle Cell is deadly, and causes 

my son great pain, so severe that he received 

morphine around the clock while at Riley all 

weekend. 

I think that if I would compare the sensitivity 

of his illness to another illness it would be like 

epilepsy, for which there is no cure and requires the attention of medical personnel immediately. If there was an employee that had a 

child with epilepsy, I’m not sure they would be 

expected to come in and wait for a sub while 

the child recovers from a seizure, especially 

when it’s something that happened without 

warning, early in the morning. The sooner we 

catch it, the least amount of time we have to 

spend in the hospital. I will do my best to make 

the appropriate arrangements if I need to be 

out and know in advance, but there may be a 

time where he gets sick without warning and 

we have to rush him up to the doctor. During 

times like these I would like to know that I 

have the support of the faculty and staff, and 
6 No. 14-3125 

not feel like I am being ostracized or punished 

because my son was in the hospital.[5] 

In response, Dr. Clancy sent an email which read, in part: 

You are absolutely right; I know very little 

about the Sickle Cell disease. I hope you will 

continue to educate me, so I will know what is 

fair for me to expect when Elliot is sick. I’m not 

sure I agree with your comparison of Epilepsy 

and Sickle Cell, but again, that may be due to 

my lack of knowledge of the Sickle Cell disease. 

Please let me know how I can help and support 

you.[6] 

During the 2010–2011 school year, Mr. Preddie recorded 

twenty-three absences, five of which were for “Family Illness,” and seven of which were for “Sick Days.”7 Two of 

Mr. Preddie’s sick days were the result of his admission to 

the hospital in November 2010 due to a physical illness that 

adversely affected his diabetes. Mr. Preddie also missed six 

days from late February to early March 2011, after a hospital 

admission for acute hypertension and kidney failure.8 The 

BCSC recorded three of those absences as “Personal Day[s]” 

and the other three as “Leave W/O Pay,” because Mr. Pred-

 

5 R.30-11 at 2. 

6 R.30-12 at 2. 

7 R.50-4. 

8 R.50-2 at 3–4 (Preddie Dep. 21–22). 
No. 14-3125 7

die already had exhausted his allotment of paid sick days.9

According to Mr. Preddie, when he missed work due to a 

hospital stay, he “always” informed Dr. Clancy “exactly why 

[he] was in the hospital.”10 

When Mr. Preddie had used all of his paid leave, 

Dr. Clancy advised him “that he could apply for additional 

leave under the Family Medical Leave Act,” but “that he 

would need [to] make a written application for that leave.”11

She also supplied Mr. Preddie with the name of “the person 

within the school corporation he would need to speak with 

regarding that application.”12 Despite his repeated absences, 

Mr. Preddie never specifically requested time off under the 

FMLA.13 

Shortly before his second-semester review, Dr. Clancy 

again spoke with Mr. Preddie concerning his absences due 

to Elliot’s condition. Mr. Preddie testified that Dr. Clancy 

told him that “sickle cell wasn’t a serious enough disease” 

and that he could not take any more time off for his son because it was affecting his classroom.14 Following this discussion, Mr. Preddie did not have any additional absences. Indeed, Mr. Preddie testified that “[t]he last time [Elliot] got 

sick[] that school year, I called my wife” to come down from 

 

9 R.50-4 at 2–3. 

10 R.30-1 at 11 (Preddie Dep. 65). 

11 R.30-9 at 9. 

12 Id. 

13 See R.30-1 at 3 (Preddie Dep. 26). 

14 R.50-2 at 5 (Preddie Dep. 36). 
8 No. 14-3125 

Indianapolis to pick Elliot up because Mr. Preddie believed 

that “there w[ould] be repercussions” for any additional absences.15 

Dr. Clancy gave Mr. Preddie his second-semester performance report in mid-March 2011. In contrast to his firstsemester performance report, Dr. Clancy assessed 

Mr. Preddie as “Need[ing] Improvement” in all evaluation 

categories for the second semester.16 Dr. Clancy also recommended that Mr. Preddie’s contract not be renewed for the 

2011–2012 school year. 

Shortly thereafter, the BCSC school board voted not to 

renew Mr. Preddie’s contract. The board gave the following 

reasons for its decision: 

1. Poor classroom management 

2. No lesson plans or lesson plans that were 

difficult to follow. His partner teacher had 

to copy his plans for the sub. 

3. Inappropriate methods of disciplining students. 

4. Repeated parent, student, and staff complaints about chaos, lack of fairness in disciplining students, one staff member reported Mr. Preddie was observed bullying 

another student. 

5. Does not work well with colleagues 

6. Attendance is affecting student progress 

7. Asked more than once for extra work so 

 

15 R.30-1 at 6 (Preddie Dep. 46). 

16 R.30-16. 
No. 14-3125 9

students could improve grades, but work 

was never provided 

8. Lack of student engagement and interest[.17] 

B. District Court Proceedings 

On June 6, 2012, Mr. Preddie filed a complaint against the 

BCSC alleging that: (1) the BCSC unlawfully discriminated 

against him on the basis of race in violation of Title VII, 

and/or retaliated against him for asserting rights under Title 

VII; (2) the BCSC failed to accommodate his disability under 

the ADA; (3) the BCSC failed to provide him with leave to 

which he was entitled under the FMLA; (4) the BCSC discriminated against him due to his race in violation of the 

Civil Rights Act of 1866, as amended (codified at 42 U.S.C. 

§ 1981 et seq.), the Civil Rights Act of 1871, as amended (codified at 42 U.S.C. § 1983 and/or 1986 et seq.), and the Civil 

Rights Act of 1991, as amended (codified at 42 

U.S.C. § 1981(a) et seq.); and (5) the BCSC unlawfully retaliated against him for his opposition to unlawful practices 

and/or the exercise of his rights under the Civil Rights Acts 

of 1866 and 1871, Title VII, the ADA, and/or the FMLA. Mr. 

Preddie filed his complaint in the Bartholomew Superior 

Court; the BCSC removed the case to the United States District Court for the Southern District of Indiana. 

The district court set a dispositive motion deadline for 

August 18, 2013. On August 19, the BCSC filed a motion for 

an extension of time; the title of the motion requested an ex-

 

17 R.50-9 at 2. 
10 No. 14-3125 

tension of time for both discovery and dispositive motions, 

but the text of the motion did not address the dispositive 

motion deadline. In response, the district court extended the 

deadline for discovery until September 18, 2013, but stated 

in its order that its extension of the discovery deadline did 

not affect the deadline for dispositive motions (which remained August 18, 2013). 

On September 18, 2013, the BCSC filed a motion for 

summary judgment on all of Mr. Preddie’s claims.18 On September 30, the district court issued an order to show cause 

asking the BCSC to explain the late filing of its summary 

judgment motion. The BCSC subsequently filed a motion for 

leave to file a belated motion for summary judgment. On October 15, the district court granted the BCSC’s request to file 

a belated motion for summary judgment; the district court 

found that the BCSC mistakenly believed that the deadline 

for dispositive motions had been extended to September 18, 

2013, and that the belated motion for summary judgment 

was filed in good faith. 

On August 27, 2014, the district court granted summary 

judgment in favor of the BCSC on all of Mr. Preddie’s claims. 

Mr. Preddie appealed the district court’s grant of summary 

judgment, as well as the court’s decision to allow the BCSC 

to file a belated motion for summary judgment. 

 

18 Although the BCSC moved for summary judgment on all claims, it 

made no argument in its brief concerning Mr. Preddie’s claim under 42 

U.S.C. § 1986. See infra Part II.D. 
No. 14-3125 11

II 

DISCUSSION 

We review the district court’s rulings on summary judgment de novo. Carter v. Chi. State Univ., 778 F.3d 651, 657 (7th 

Cir. 2015). Summary judgment is appropriate when, construing the record in the light most favorable to the nonmovant, 

we conclude that no reasonable jury could rule in favor of 

the nonmoving party. Miller v. Gonzalez, 761 F.3d 822, 827 

(7th Cir. 2014). 

A. Mr. Preddie’s ADA claims 

Mr. Preddie makes two distinct claims under the ADA: 

(1) that the BCSC violated his rights under the ADA by failing to provide a reasonable accommodation for his disability, and (2) that the BCSC unlawfully retaliated against him 

because of his disability by declining to renew his teaching 

contract for the 2011–2012 school year. Mr. Preddie argues 

that we should reverse the district court’s grant of summary 

judgment in favor of the BCSC on these claims. We disagree. 

1. Failure to accommodate claim 

In order to establish a claim for failure to accommodate 

under the ADA, Mr. Preddie must establish that: (1) he is a 

qualified individual with a disability; (2) the BCSC was 

aware of his disability; and (3) the BCSC failed to reasonably 

accommodate that disability. Kotwica v. Rose Packing Co., 637 

F.3d 744, 747–48 (7th Cir. 2011). The ADA defines a “qualified individual” as “an individual who, with or without reasonable accommodation, can perform the essential functions 
12 No. 14-3125 

of the employment position that such individual holds or 

desires.” 42 U.S.C. § 12111(8). 

In our view, Mr. Preddie’s failure to accommodate claim 

cannot succeed for two reasons: (1) Mr. Preddie never requested an accommodation; and (2) Mr. Preddie does not 

meet the definition of a qualified individual with a disability 

under the ADA. First, we note that a plaintiff typically must 

request an accommodation for his disability in order to claim 

that he was improperly denied an accommodation under the 

ADA. See Fleishman v. Cont’l Cas. Co., 698 F.3d 598, 608 (7th 

Cir. 2012) (“[T]he standard rule is that a plaintiff must normally request an accommodation before liability under the 

ADA attaches ... .”) (quoting Jovanovic v. In-Sink-Erator Div. 

of Emerson Elec. Co., 201 F.3d 894, 899 (7th Cir. 2000)). Although it is fair to assume that the BCSC was aware of Mr. 

Preddie’s diabetic condition, there is no evidence to suggest 

that Mr. Preddie ever requested an accommodation for this 

condition, other than intermittently requesting days off 

throughout the school year. Without such a request, we conclude that Mr. Preddie’s failure to accommodate claim under 

the ADA does not survive summary judgment. 

Additionally, Mr. Preddie does not meet the definition of 

a qualified individual with a disability under the ADA.19 The 

Code of Federal Regulations defines a reasonable accommodation under the ADA as “[m]odifications or adjustments to 

the work environment, or to the manner or circumstances 

under which the position held or desired is customarily per-

 

19 For the purposes of this analysis, we assume without deciding that 

Mr. Preddie’s health condition qualifies as a “disability” under the ADA. 
No. 14-3125 13

formed, that enable an individual with a disability who is 

qualified to perform the essential functions of that position.” 29 

C.F.R. § 1630.2(o)(1)(ii) (emphasis added). The ADA defines 

a “qualified individual” with a disability as “an individual 

who, with or without reasonable accommodation, can perform the essential functions of the employment position that 

such individual holds or desires.” 42 U.S.C. § 12111(8). In 

reviewing Mr. Preddie’s ADA claims, the district court held 

that Mr. Preddie did not meet the definition of a qualified 

individual with a disability because his unplanned and sporadic attendance prevented him from performing the essential functions of his teaching position. We have held in the 

past that, in many instances, irregular attendance can prevent an individual from performing the essential functions 

of his or her job. See Jovanovic, 201 F.3d at 899–900 (holding 

that twenty-four absences in twelve months made it impossible for plaintiff to perform the essential functions of his job, 

thereby disqualifying him from the right to a reasonable accommodation under the ADA); Nowak v. St. Rita High Sch., 

142 F.3d 999, 1003 (7th Cir. 1998) (holding that “[a teacher] 

who does not come to work cannot perform the essential 

functions of his job”); see also Waggoner v. Olin Corp., 169 F.3d 

481, 484 (7th Cir. 1999) (“[I]n most instances the ADA does 

not protect persons who have erratic, unexplained absences, 

even when those absences are a result of a disability.”). 

Here, it is reasonable to conclude that Mr. Preddie’s 

twenty-three absences prevented him from performing the 

essential functions of his teaching position. Indeed, one of 

the reasons listed for the non-renewal of his contract was 
14 No. 14-3125 

that his “[a]ttendance [was] affecting student progress.”20 As 

such, we conclude that he is not a qualified individual with a 

disability under the ADA, and thus that he was not entitled 

to reasonable accommodation. This conclusion, combined 

with the fact that Mr. Preddie never requested such an accommodation in the first place, leads us to affirm the district 

court’s grant of summary judgment to the BCSC on 

Mr. Preddie’s ADA failure to accommodate claim. 

2. Retaliation claim 

Similarly, we affirm the district court’s summary judgment ruling on Mr. Preddie’s ADA retaliation claim. On this 

claim, Mr. Preddie argues that the BCSC unlawfully failed to 

renew his teaching contract because he exercised his rights 

under the ADA. Mr. Preddie can establish retaliation under 

the ADA through either the direct or indirect method of 

proof. Dickerson v. Bd. of Trs. of Cmty. Coll. Dist. No. 522, 657 

F.3d 595, 601 (7th Cir. 2011). The direct method of proof for 

an ADA retaliation claim requires Mr. Preddie to show that: 

“(1) he engaged in statutorily protected activity; (2) he suffered an adverse employment action; and (3) [there is] a 

causal connection between the two.” Id. (citing Casna v. City 

of Loves Park, 574 F.3d 420, 426 (7th Cir. 2009)). Under the indirect method, Mr. Preddie must demonstrate that (1) he 

“engaged in statutorily protected activity”; (2) he “was performing his job satisfactorily”; and (3) he “was singled out 

for an adverse employment action that similarly situated 

employees who did not engage in protected activity did not 

 

20 R.50-9 at 2. 
No. 14-3125 15

suffer.” Id. at 601–02 (citing Lloyd v. Swifty Transp., Inc., 552 

F.3d 594, 601 (7th Cir. 2009)). Once Mr. Preddie has met this 

initial burden, the burden shifts to the BCSC “to present a 

non-invidious reason for the adverse employment action.” 

Id. at 602. If the BCSC accomplishes this, then the burden 

shifts back to Mr. Preddie to demonstrate that the BCSC’s 

explanation of the adverse employment action was pretextual. Id. 

Here, Mr. Preddie does not make plain which method of 

proof he utilizes to make his ADA retaliation claim. Nevertheless, we conclude that Mr. Preddie’s claim fails under either method. An element of both the indirect and direct 

methods of proof is that Mr. Preddie must have engaged in a 

statutorily protected activity—in other words, he must have 

asserted his rights under the ADA by either seeking an accommodation or raising a claim of discrimination due to his 

disability. See, e.g., id. at 602 (where the protected activity at 

issue was “complaining about discriminatory acts and filing 

a discrimination charge”); Mobley v. Allstate Ins. Co., 531 F.3d 

539, 549 (7th Cir. 2008) (where protected activity was plaintiff’s “requests for accommodations”). Our previous conclusion that the record does not reveal a request for accommodation, therefore, effectively dooms Mr. Preddie’s retaliation 

claim. His periodic requests for his own health-related leave, 

which account for roughly one-third of his absences, without 

more, does not qualify as “protected activity” under the 

ADA. Thus, Mr. Preddie’s claim fails under both the indirect 

and direct methods of proof, and we affirm the district 

court’s judgment in favor of the BCSC on Mr. Preddie’s 

ADA retaliation claim. 
16 No. 14-3125 

B. Mr. Preddie’s Title VII and Section 1981 claims 

In addition to his claims under the ADA, Mr. Preddie argues that the BCSC unlawfully discriminated against him 

because of his race. Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with 

respect to his compensation, terms, conditions, or privileges 

of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). It is 

also unlawful for any individual—including an employer—

to discriminate on the basis of race in the creation and enforcement of contracts. See 42 U.S.C § 1981. Plaintiffs may 

prove discrimination under Title VII and Section 1981 either 

directly or indirectly.21 

Under the direct method, a plaintiff must show that his 

employer made an adverse employment decision “on an 

impermissible discriminatory basis.” Andrews v. CBOCS W., 

Inc., 743 F.3d 230, 234 (7th Cir. 2014). Here, Mr. Preddie offers no direct evidence that he was fired because of his race, 

and therefore must rely on the indirect method of proving 

racial discrimination. Under the indirect method of proof, a 

plaintiff meets his initial burden by showing that: (1) he is a 

member of a protected class; (2) he was meeting his employer’s legitimate expectations; (3) he was subject to an adverse 

employment action; and (4) similarly situated employees 

 

21 The elements of proof under both Title VII and Section 1981 are “essentially identical,” therefore we need not analyze them separately. 

Brown v. Advocate S. Suburban Hosp., 700 F.3d 1101, 1104 n.1 (7th Cir. 

2012) (quoting Montgomery v. Am. Airlines, Inc., 626 F.3d 382, 389 (7th Cir. 

2010)). 
No. 14-3125 17

who were not members of the protected class were treated 

more favorably. Id. (citing Ptasznik v. St. Joseph Hosp., 464 

F.3d 691, 696 (7th Cir. 2006)). If a plaintiff establishes a prima 

facie case of discrimination, only then must the employer 

“articulate a legitimate, nondiscriminatory reason for the 

adverse employment action, at which point the burden shifts 

back to the plaintiff to submit evidence that the employer’s 

explanation is pretextual.” Id. Here, Mr. Preddie cannot meet 

his initial burden of proof on his Title VII and Section 1981 

claims. Although it is true that Mr. Preddie, who is AfricanAmerican, was subject to an adverse employment action in 

the non-renewal of his contract, Mr. Preddie does not succeed in proving that similarly situated employees were 

treated differently, nor does he show that he was meeting 

his employer’s legitimate expectations.

Mr. Preddie argues that a number of white teachers routinely were granted medical-related leave, whereas 

Mr. Preddie’s teaching contract was not renewed precisely 

because of his medical-related absences. Although Mr. 

Preddie does not specify, we assume that his reference to 

these other teachers is based on information contained in Dr. 

DeClue’s deposition, in which Mr. Preddie’s counsel recounted various requests for leave taken by white BCSC elementary school teachers from 2005–2013.22 It is not clear 

from Dr. DeClue’s deposition, however, whether the comparator teachers had similar performance records to 

Mr. Preddie. The record indicates that Mr. Preddie began 

experiencing performance-related issues as early as November 2010 and that these performance concerns continued into 

 

22 See R.50-3 at 11–12 (DeClue Dep. 41–49). 
18 No. 14-3125 

March 2011 when Dr. Clancy noted on Mr. Preddie’s secondsemester evaluation that he needed improvement in every 

category. Mr. Preddie’s performance issues demonstrate not 

only that his purported comparator group is insufficient to 

bolster his racial discrimination claims, but also present a 

separate ground on which his Title VII and Section 1981 

claims fail: Mr. Preddie was not meeting his employer’s legitimate expectations. For these reasons, we find that Mr. 

Preddie has not established a prima facie case of discrimination under Title VII or Section 1981, and thus we affirm the 

district court’s grant of summary judgment to the BCSC on 

these claims. 

C. Mr. Preddie’s FMLA claims 

1. Interference 

Mr. Preddie also raises claims of interference and retaliation under the FMLA. Under the FMLA, it is “unlawful for 

[an] employer to interfere with, restrain, or deny” an employee’s “exercise of or ... attempt to exercise[] any right 

provided under” the Act. 29 U.S.C. § 2615(a)(1). To prevail 

on an FMLA-interference claim, a plaintiff must show that 

(1) he was eligible for the FMLA’s protections, 

(2) his employer was covered by the FMLA, (3) 

he was entitled to leave under the FMLA, (4) 

he provided sufficient notice of his intent to 

take leave, and (5) his employer denied [or interfered with] ... FMLA benefits to which he 

was entitled. 
No. 14-3125 19

Cracco v. Vitran Exp., Inc., 559 F.3d 625, 635–36 (7th Cir. 2009) 

(internal quotation marks omitted); accord Pagel v. TIN Inc., 

695 F.3d 622, 627 (7th Cir. 2012). 

Two of these elements require closer examination on our 

part. We turn first to the notice requirement. We have observed that “[t]he notice requirements of the FMLA are not 

onerous. An employee need not expressly mention the 

FMLA in his leave request or otherwise invoke any of its 

provisions.” Burnett v. LFW Inc., 472 F.3d 471, 478 (7th Cir. 

2006); accord 29 C.F.R. § 825.301(b) (“An employee ... does 

not need to expressly assert rights under the Act or even 

mention the FMLA to meet his or her obligation to provide 

notice ... .”).23 “[I]t is sufficient notice if the employee provides the employer with enough information to put the employer on notice that FMLA-qualifying leave is needed.” 

Horwitz v. Bd. of Educ. of Avoca Sch. Dist. No. 37, 260 F.3d 602, 

616 (7th Cir. 2001) (internal quotation marks omitted); accord

29 C.F.R. § 825.301(b).24 Where “the need for leave concerns 

a family member rather than the employee [him]self, the 

employee should also indicate that leave is sought to care for 

that person.” Nicholson v. Pulte Homes Corp., 690 F.3d 819, 826 

(7th Cir. 2012) (“If Nicholson provided sufficient notice that 

 

23 See also Price v. City of Fort Wayne, 117 F.3d 1022, 1026 (7th Cir. 1997) 

(“The FMLA does not require that an employee give notice of a desire to 

invoke the FMLA.”). 

24 See also Aubuchon v. Knauf Fiberglass, GmbH, 359 F.3d 950, 953 (7th Cir. 

2004) (“[T]he employee’s duty is merely to place the employer on notice 

of a probable basis for FMLA leave.”); Byrne v. Avon Prods., Inc., 328 F.3d 

379, 382 (7th Cir. 2003) (“It is enough under the FMLA if the employer 

knows of the employee’s need for leave ... .”). 
20 No. 14-3125 

she needed time off to care for her seriously ill parents, then 

Pulte had a duty to inquire further to confirm Nicholson’s 

FMLA entitlement.”). 

Given this guidance, we must conclude that the evidence 

shows that, no later than November 2010, Mr. Preddie had 

placed the BCSC on notice of his need for leave for his son’s 

sickle cell anemia. On October 31, 2010, Mr. Preddie notified 

Dr. Clancy, via email, that he was taking leave to care for his 

son who had just been hospitalized.25 During the conversation, which occurred on the day of Mr. Preddie’s return,26

“the subject of [his] son’s sickle cell anemia came up and was 

discussed.”27 According to Mr. Preddie, Dr. Clancy told him 

that he could not “‘keep taking off time for [his] son’” and 

that he needed to find “‘someone else [to] go pick him up’” 

when he gets sick.28 Mr. Preddie followed up on this conversation with an email that informed Dr. Clancy of both the 

 

25 See R.30-10 at 2. 

26 Although Mr. Preddie could not recall the date of this conversation 

during his deposition, the evidence indicates that it occurred on November 3, 2010, the day he returned to work. See R.30-9 at 2 (Clancy affidavit 

describing conversation with Mr. Preddie on November 3, 2010); see also

R.30-11 at 2 (email from Mr. Preddie to Dr. Clancy, dated November 3, 

2010, referencing a conversation that occurred earlier that day concerning Mr. Preddie’s recent absences to care for his son); R.50-4 at 1–2 (Employee Absence Report showing that Mr. Preddie was absent on November 1 and 2, 2010). 

27 R.30-9 at 2. 

28 R.50-2 at 7 (Preddie Dep. 40); see also id. at 5 (Preddie Dep. 36). 
No. 14-3125 21

seriousness of his son’s condition and the treatment it required.29

The same is true for Mr. Preddie’s absences related to his 

diabetes. In November 2010, Mr. Preddie’s wife emailed 

Dr. Clancy to inform her that Mr. Preddie had been hospitalized for an illness that was “affecting his diabetes in a bad 

way.”30 Dr. Clancy thanked Mr. Preddie’s wife for keeping 

her informed and wished Mr. Preddie “a speedy recovery.”31

The record, therefore, shows that Dr. Clancy was on notice 

of the FMLA-qualifying reasons for Mr. Preddie’s absences.32

 

29 See R.30-11 at 2. 

30 R.30-13 at 2. 

31 Id.

32 The BCSC maintains that 

[t]he fact that [it] may have known the reasons behind 

Mr. Preddie’s absence from work does not satisfy 

Mr. Preddie’s burden of showing that he provided sufficient 

notice of his intent to take leave under the FMLA where the 

undisputed evidence is that BCSC specifically advised him 

of the availability of FMLA leave and the name of the person 

that he needed to see to get an application for such leave and 

where Mr. Preddie failed to request such leave with full 

knowledge of the availability of that leave. 

Appellee’s Br. 13–14. We do not believe that the BCSC’s argument finds 

support in the governing regulation, which makes clear that an employee needs to provide “verbal notice sufficient to make the employer aware 

that the employee needs FMLA-qualifying leave.” 29 C.F.R. § 825.302(c). 

The burden is then on the employer to “inquire further of the employee if 

it is necessary to have more information about whether FMLA leave is 

being sought by the employee[] and obtain the necessary details of the 

leave to be taken.” Id. 

(continued...) 
22 No. 14-3125 

The “interference” element of Mr. Preddie’s claim also 

requires some elaboration. The implementing regulations 

make clear that the ways in which an employer may interfere with FMLA benefits are not limited simply to the denial 

of leave. Interference also encompasses “us[ing] the taking of 

FMLA leave as a negative factor in employment actions” 

and “discouraging an employee from using such leave.” 29 

C.F.R. § 825.220(c),(b); see also Pagel, 695 F.3d at 631. 

Here, there is evidence from which a jury could conclude 

that the BCSC “interfere[d]” with Mr. Preddie’s rights by 

“us[ing] the taking of FMLA leave as a negative factor in 

employment actions.” 29 C.F.R. § 825.220(c). One of the stated reasons for the non-renewal of Mr. Preddie’s contract was 

his absences—almost all of which appear to be related to 

FMLA-qualifying conditions. Additionally, other reasons 

given for his dismissal are tied logically and practically to 

those absences.33

The record also contains evidence—namely Mr. Preddie’s 

two conversations with Dr. Clancy concerning his son’s sickle cell anemia—from which a jury could conclude that the 

BCSC discouraged Mr. Preddie from incurring additional 

absences related to FMLA-qualifying conditions. In the first 

 

(...continued) 

The regulations do allow an employer to “require an employee to 

comply with the employer’s usual and customary notice and procedural 

requirements for requesting leave.” Id. § 825.302(d). The BCSC, however, 

does not maintain that Mr. Preddie failed to comply with a notice requirement generally applicable to all leave. 

33 See R.50-9 at 2 (listing poor lesson plans for substitutes among the reasons for the non-renewal of his contract). 
No. 14-3125 23

conversation, Dr. Clancy stated: “You’ve missed a lot of 

school for yourself. You can’t take off. Is there anybody that 

can go pick up your son or anybody that can take care of 

your son ... ?”34 According to Mr. Preddie, in the second 

conversation, Dr. Clancy “said I can’t miss time ... for my 

son and that it’s ... affecting my classroom and I can’t miss 

any more time to take off for my son.”35 We believe a jury 

reasonably could find that Dr. Clancy’s discussions with 

Mr. Preddie were meant to convey the message that, if he 

missed additional time related to his son’s condition, there 

would be adverse consequences. 

There also is evidence in the record that Dr. Clancy’s 

comments did have an effect on Mr. Preddie’s decisions regarding leave. Mr. Preddie testified that “[t]he last time [Elliot] got sick,” he called his wife to take care of his son because Mr. Preddie was afraid that “if I took off again ... there 

would be repercussions.”36 Additionally, following 

Mr. Preddie’s March conversation with Dr. Clancy, he did 

not miss any additional days related to his or Elliot’s conditions. Based on this evidence, a jury could conclude that 

Mr. Preddie made the conscious decision not to take addi-

 

34 R.50-2 at 5 (Preddie Dep. 36) (emphasis added). 

35 Id. at 9 (Preddie Dep. 42). Dr. Clancy did not make overt threats that 

additional absences would result in discipline or non-renewal of Mr. 

Preddie’s contract; that, however, is not determinative. Rather, the critical question is whether the employer’s actions would discourage a reasonable employee from taking FMLA leave. Cf. Cole v. Illinois, 562 F.3d 

812, 816 (7th Cir. 2009) (applying reasonable person standard in FMLA 

retaliation claim). 

36 R.30-1 at 6 (Preddie Dep. 46). 
24 No. 14-3125 

tional leave based on Dr. Clancy’s implicit threats of adverse 

action. 

We acknowledge that there is evidence in the record 

from which a jury could reach the contrary conclusion. At 

the summary judgment stage, however, “[i]t is not our role 

to evaluate the weight of the evidence, to judge the credibility of witnesses or to determine the ultimate truth of the 

matter, but simply to determine whether there exists a genuine issue of triable fact.” South v. Illinois Envtl. Prot. Agency, 

495 F.3d 747, 751 (7th Cir. 2007). Consequently, we must reverse the district court’s judgment in favor of the BCSC on 

Mr. Preddie’s FMLA-interference claim. 

2. Retaliation 

The FMLA also makes it “unlawful for any employer to 

discharge or in any other manner discriminate against any 

individual for opposing any practice made unlawful by” the 

FMLA. 29 U.S.C. § 2615(a)(2). “To survive a motion for 

summary judgment on h[is] claim of retaliation under the 

FMLA, [Mr. Preddie] had to submit evidence showing that 

[the BCSC] demoted or fired h[im] because []he took valid 

leave.” Lucas v. Pyramax Bank, FSB, 539 F.3d 661, 667 (7th Cir. 

2008). Applying this standard, Mr. Preddie has raised a genuine issue of material fact that he suffered retaliation under 

the FMLA. Specifically, he has offered evidence that he was 

terminated, at least in part, based on his record of absences,37

and that the BCSC knew that many of those absences were 

 

37 See R.50-9 at 2. 
No. 14-3125 25

attributable to his diabetes and to his son’s sickle cell anemia.38 Under these circumstances, a reasonable jury could 

conclude that Mr. Preddie was terminated because he took 

leave for FMLA-qualifying conditions, and we must reverse 

the district court’s summary judgment in the BCSC’s favor. 

We emphasize that, in reaching this conclusion, we have 

construed the facts in the light most favorable to Mr. Preddie, as we must. We express no opinion as to the ultimate 

merits of Mr. Preddie’s FMLA claims. We only conclude that 

he has raised a triable issue as to these claims. 

D. Mr. Preddie’s Section 1986 claim 

In the district court’s summary judgment opinion, the 

court stated in a footnote, “Mr. Preddie’s Complaint also 

mentions 42 U.S.C. § 1986; however, neither party addressed 

this statute in their briefing. Therefore, the Court finds that 

this claim has been abandoned and waived.” Preddie v. Bartholomew Cnty. Consol. Sch. Corp., 44 F. Supp. 3d 800, 804 n.1 

(S.D. Ind. 2014). Mr. Preddie challenges this ruling on appeal, arguing that because the BCSC did not address his Section 1986 claim in its motion for summary judgment, he was 

not required to present any evidence relating to this claim in 

response to the BCSC’s motion. Thus, he argues, the district 

court improperly treated his Section 1986 claim as abandoned. 

Mr. Preddie’s complaint states the following: 

 

38 See, e.g., R.30-1 at 11 (Preddie Dep. 65); R.30-10 at 2; R.50-2 at 5, 9 

(Preddie Dep. 36, 42). 
26 No. 14-3125 

This instant action is brought pursuant to Title 

VII of the Civil Rights Act of 1964, as amended, 

codified at 42 U.S.C. § 2000e et seq., The Family 

Medical Leave Act (“FMLA”) of 1993 as 

amended, codified at 29 U.S.C. § 2601 et seq[.]; 

The Americans With Disabilities Act (“ADA”), 

as amended codified at 42 U.S.C. § 12101 et seq., 

the Civil Rights Act of 1866, as amended, codified at 42 U.S.C. § 1981 et seq[.], the Civil Rights 

Act of 1871, as amended, codified at 42 U.S.C. 

§ 1983 and/or 1986 et seq[.], and the Civil Rights 

Act of 1991, as amended, codified at 42 U.S.C. 

§ 1981(a), et seq.

[39]

This is the only mention of Mr. Preddie’s Section 1986 claim 

in his complaint, although he does later reference his claim 

under the Civil Rights Act of 1871. 

Mr. Preddie is correct that the BCSC’s motion for summary judgment does not address specifically his Section 1986 

claim. Mr. Preddie’s response to the BCSC’s motion similarly 

makes no reference to Section 1986, although no such reference was required of Mr. Preddie. The district court’s characterization of Mr. Preddie’s Section 1986 claim as “abandoned” suggests that the onus was on Mr. Preddie to remind 

the court, and the BCSC, of his claim under Section 1986 after the BCSC failed to mention it in its motion for summary 

judgment. Preddie, 44 F. Supp. 3d at 804 n.1. This is incorrect. 

See Sublett v. John Wiley & Sons, Inc., 463 F.3d 731, 736 (7th 

Cir. 2006) (“As a general matter, if the moving party does 

 

39 R.1-1 at 1–2. 
No. 14-3125 27

not raise an issue in support of its motion for summary 

judgment, the nonmoving party is not required to present 

evidence on that point, and the district court should not rely 

on that ground in its decision.”). 

Nevertheless, our conclusions on Mr. Preddie’s discrimination claims necessarily prove fatal to any claim he attempted to make under Section 1986. Section 1986 of Title 42 

states: 

Every person who, having knowledge that any 

of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to 

be committed, and having power to prevent or 

aid in preventing the commission of the same, 

neglects or refuses so to do, if such wrongful 

act be committed, shall be liable to the party injured, or his legal representatives, for all damages caused by such wrongful act, which such 

person by reasonable diligence could have 

prevented ... . 

We find it difficult to see how this cause of action fits the 

facts of Mr. Preddie’s case. Section 1985, which is referenced 

in the above excerpt, makes it unlawful to commit certain 

acts, such as conspiring to deprive a person or class of persons of the equal protection of the laws. 42 U.S.C. § 1985(3). 

Based on this reference, and the fact that Mr. Preddie’s reference to Section 1986 was listed among his other civil rights 

claims, we suppose that Mr. Preddie could be arguing that 

the BCSC neglected to prevent individuals from discriminating against Mr. Preddie on the basis of his race (although 

this is a generous reading of such an underdeveloped argument). To the extent that this is the argument Mr. Preddie 
28 No. 14-3125 

sought to make, the district court more than addressed the 

issue when it ruled on Mr. Preddie’s racial discrimination 

claims pursuant to Title VII, Section 1981, and Section 1983. 

In short, because the district court correctly found that the 

BCSC did not discriminate against Mr. Preddie based on his 

race, it would have been impossible to find that the BCSC 

neglected to prevent such discrimination in violation of Section 1986. Thus, affirming the district court’s dismissal of 

this claim is proper. See Estate of Davis v. Wells Fargo Bank, 

633 F.3d 529, 538–39 (7th Cir. 2011) (holding that the district 

court’s improper dismissal of a claim on a motion to dismiss 

was harmless when the claim had identical elements to another claim which was properly dismissed on summary 

judgment). 

E. BCSC’s belated filing of its summary judgment motion 

Finally, Mr. Preddie argues that the district court committed reversible error when it allowed the BCSC to file a 

belated motion for summary judgment. We review the district court’s grant of the BCSC’s request to file this motion 

for abuse of discretion. Cf. Johnson v. Gudmundsson, 35 F.3d 

1104, 1111 (7th Cir. 1994) (noting that a district court was 

“well within the bounds of [its] discretion in denying [a party’s] belated motion for leave to file ... a memorandum in 

opposition to ... summary judgment”). In this case, we conclude that the district court did not abuse its discretion. 

When the BCSC filed its summary judgment motion one 

month after the deadline for dispositive motions, the district 

court issued an order to show cause why the late motion 

should not be stricken. After reviewing the BCSC’s response 
No. 14-3125 29

to this order, as well as the BCSC’s own motion for leave to 

file a belated summary judgment motion, the district court 

granted the motion, concluding: 

The Court accepts that Counsel for the Defendant mistakenly believed that the dispositive motion deadline was September 18, 2013, 

rather than the original dispositive motion 

deadline of August 18, 2013. The Court finds 

that although the motion for summary judgment was filed late, it was filed in good faith, 

was not intentionally filed in violation of the 

dispositive motion deadline and the late filing 

constitutes excusable neglect.[40]

We do not see where the district court abused its discretion 

in ultimately considering the late motion. Rather than overlooking the fact that the BCSC filed a late motion, the district 

court quickly recognized the motion’s tardiness and issued 

an order to show cause. Once cause for the late filing was 

shown to be an honest misunderstanding of the deadline for 

dispositive motions, the court allowed the late filing to 

stand. Thus, we affirm the district court’s ruling. 

Conclusion 

For the foregoing reasons, we affirm the judgment of the 

district court with the exception of its judgment for the 

BCSC on Mr. Preddie’s FMLA claims. With respect to those 

claims, we reverse the judgment of the district court and re-

 

40 R.42 at 1. 
30 No. 14-3125 

mand for further proceedings consistent with this opinion. 

The parties shall bear their own costs in this appeal. 

AFFIRMED in part; REVERSED and REMANDED in part