Opinion
No. 2:03-cv-00202-JDT-WGH.
December 16, 2004
ENTRY ON MOTION FOR SUMMARY JUDGMENT (DKT. NO. 29)
This Entry is a matter of public record and may be made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
Defendant moves for summary judgment on the Complaint, which alleges retaliatory discharge for filing a worker's compensation claim in violation of Indiana law. Plaintiff opposes the motion.
Ms. Gray asks the court to strike Lowe's comments at page 3 of its supporting memorandum about an allegedly misleading response on her employment application. This matter is not relevant to the issues presented on summary judgment. The request to strike is DENIED; however, the comments are ignored.
These facts are viewed in the light most favorable to the nonmovant, with all reasonable inferences drawn in her favor. At all relevant times, Plaintiff Diana Gray was a citizen of Indiana and Defendant Lowe's Home Centers, Inc. ("Lowe's"), was incorporated under the laws of, and had its principal place of business in, North Carolina. Ms. Gray worked as a Customer Service Associate for Lowe's in its Vincennes, Indiana store, beginning in February 2002. On August 30, 2002, while she was working, a box of blinds ended up on Ms. Gray's foot, causing her injury. Department Manager Drenda Kendall (then Armes) not only witnessed the accident, but also was the co-worker who unloaded the box which landed on Ms. Gray's foot.
Under a Lowe's company policy, "[a]ll employees must report on the job injures/illnesses to management immediately" and a "Lowe's Initial Injury Report" must be completed. (Bryson Aff. ¶ 4 Ex. A at 1.) Lowe's contends that according to this policy, the injury must be reported to the manager on duty, who must complete the injury report with the injured employee before the end of that manager's shift. Though the written policy places certain responsibilities on the manager on duty (or the HR (presumably Human Resources) manager), the policy does not expressly require that the injured employee report the injury to the manager on duty, only that the employee report the injury "to management immediately." (Bryson Aff., Ex. A at 2.) Lowe's contends that as a Department Manager, Ms. Kendall was not authorized to receive reports of injuries or complete an injury report. The exhibits cited for support, however (Kendall Aff. Ex. A; Bryson Aff. Ex. A), again do not substantiate this claim. Finally, Lowe's claims that Ms. Kendall told Ms. Gray that she needed to complete an injury report with Carter Powell, the manager on duty, but the exhibit attached to Ms. Kendall's affidavit, does not substantiate this claim. The most which can be established by the exhibit on this matter is that Ms. Kendall told Ms. Gray that they "needed a ASM," (Kendall Aff., Ex. A at 2), a store manager, and Ms. Gray said if she needed one she would contact one. ( Id. at 2-3.)
Ms. Gray tried to contact Mr. Powell following the accident, but was advised he was with a customer. (Gray Dep. Ex. 4.) She waited for a while, but finally left the store without speaking with him about the accident. She did not complete an injury report and did not complete her shift. At some point later that day, Ms. Kendall reported the injury to Mr. Powell. (Kendall Aff., Ex. A at 2-3.)
When Store Manager Mike Bryson learned of the injury, he attempted to contact Ms. Gray by calling her at home. (Bryson Aff. ¶ 5.) When they spoke later that evening, he asked her to return to the store on August 31, 2002, to complete the injury report. (Gray Dep. Ex. 4.) She did as requested.
Then, on September 3, 2002, Ms. Gray returned to work with a doctor's release to work with restrictions, which restrictions were accommodated by Lowe's. (Gray Dep. 127-28 and Ex. 6.) However, during her first shift as a cashier, she repeatedly complained to Judi Ridge that she was experiencing a great deal of pain while working at the register. (Ridge Aff. ¶ 5.) Ms. Ridge reported these complaints to Mr. Bryson. ( Id.) According to Ms. Ridge and Mr. Bryson, it had become apparent that Ms. Gray could not work even with the accommodations provided. ( Id.; Bryson Aff. ¶ 6.) Ms. Gray worked part of September 4, but Mr. Bryson decided she should not be working and told her to go home and collect worker's compensation benefits. (Gray Dep. 132-33; Bryson Aff. ¶ 7; Bryson Dep. at 95-101; Pl.'s App. Ex. 7.)
Sometime shortly thereafter, Ms. Gray filed for worker's compensation benefits. She took worker's compensation leave and received benefits beginning in September 2002. While Ms. Gray was receiving her benefits, in October 2002, Lowe's third-party worker's compensation administrator, Specialty Risk Services ("SRS"), through its claim specialist, Scott Basco, hired a private investigator to conduct surveillance of Ms. Gray. (Pl.'s Exs. 12 14.) The gist of the investigator's report was that Ms. Gray acted differently when at doctors' appointments than she did when not at a doctor's appointment, thus suggesting she was exaggerating or faking her injury.
On November 20, 2002, Ms. Gray was examined by Dr. Adelman who had been treating her for her foot injury since the accident occurred. (Pl.'s App. Ex. 20.) On exam, the doctor concluded that his findings did not support Ms. Gray's claims regarding her injury. He opined that she had reached "maximum medical improvement" ("MMI") and released her to return to work with restrictions. ( Id.)
In a letter dated November 25, 2002, SRS advised Ms. Gray and Lowe's of Gray's MMI status and that her worker's compensation benefits had been terminated. (Gray Dep. Ex. 8.) On or about December 3, 2002, Ms. Gray completed a report which she sent to the Indiana Worker's Compensation Board, disputing the proposed termination of her worker's compensation benefits and requesting an independent medical examination. (Pl.'s App., Exs. 13, 34.)
On December 18, 2002, Mr. Bryson wrote a letter to Ms. Gray advising her to return to work on December 21, 2002. (Bryson Aff. Ex. B.) At his deposition, Mr. Bryson explained the delay in returning Ms. Gray to work by stating that the work schedules were prepared three weeks in advance. (Bryson Dep. at 117-19.) Accordingly, she returned to work with restrictions on December 21, 2002. (Gray Dep. at 154.) Lowe's assigned her to work at a credit card table at the front of the store, a position which allowed her to sit down and rest her foot in accordance with her restrictions. ( Id. at 154-55.)
On December 22, 2002, a co-worker observed Ms. Gray talking on her cell phone during working hours and reported it to a manager, Nancy Jones. (Jones Aff. ¶ 3.) Jones asked Judi Ridge how to respond to the complaint, and Ridge told her to ask the witness to write up her complaint. (Jones Aff. ¶ 4 Ex. A.) Ms. Gray does not deny that she used her cell phone during working hours on that date, but testified that Mr. Powell told her to make the telephone call. (Gray Dep. 160-62.) The same day, another co-worker observed Ms. Gray make two separate purchases while "on the clock". (Carroll Aff. ¶ 3 Ex. A.) The co-worker reported these incidents to store management, and later submitted a written statement detailing what she had seen. Also on December 22, two co-workers allegedly witnessed Ms. Gray treat a customer rudely because she wanted to purchase (or had purchased) the last of a particular sale item. They reported this incident to management and wrote witness statements. (Jones Aff. ¶ 5 Ex. B; Cunningham Aff. ¶ 3 Ex. A.) Ms. Gray did not deny that she told a customer she had purchased the last of a particular item; she merely stated that she did not think she had been rude. (Gray Dep. 170-71.) As a result of this incident, the customer allegedly made a complaint to store management. ( Id., Ex. 14.)
Lowe's claims that during her deposition, Plaintiff did not deny that she shopped while on the clock, but the testimony cited pertained to events on December 26 rather than December 22. (Gray Dep. 167-68.)
Lowe's claims that after receiving these complaints about Ms. Gray, Mr. Bryson decided to terminate her employment for violating company policies. He detailed the alleged policy violations and requested Ms. Ridge to write up discipline notices for each violation. (Bryson Aff. ¶ 10.) On December 26, Mr. Bryson called Ms. Gray into his office and presented her with the discipline notices, including one for failing to report her work-related injury on August 30. ( Id. ¶ 13 Ex. C; Gray Dep. Ex. 10.) He claims that he had intended to present this notice to her at an earlier date, but never had the opportunity to do so during the few days she had worked before that date. (Bryson Aff. ¶ 12.) Mr. Bryson then terminated Ms. Gray's employment, ostensibly for her repeated violations of Lowe's Company policy. He denies that Ms. Gray's worker's compensation claim had any bearing on his decision to discharge her. ( Id. ¶ 14.)
Ms. Gray disputes that she violated company policy. She claims that the policies relied on by Lowe's are not included in the "standards of conduct" section of the employee handbook and that if such policies exist, they are known only to managers. Though she signed a document acknowledging certain company policies were communicated to her, she claims the document covered only the "Standards of Conduct" materials in the employee orientation guide and the "Code of Ethics" but did not include the "management guides" relied on by Lowe's. Furthermore, Ms. Gray alleges that Lowe's had a four-step progressive discipline policy, but failed to apply it to her, instead handing her all six write-ups at one time. She had never before been disciplined for any company policy violation and had never been warned that her job was in jeopardy before being terminated. Lowe's Management Guide Policy No. 209 provides: "Do not terminate an employee who has a current or recent W.C. claim, contact the Regional HR Director or Logistics HR Manager." (Pl.'s App., Ex. 7.) Ms. Gray contends that Mr. Bryson did not contact any of these managers before discharging her.
Lowe's is self-insured for worker's compensation purposes. (Bryson Dep. at 16.) Individual Lowe's stores pay every expense that the store incurs, including the expense of a worker's compensation claim, an unemployment claim, and an employment lawsuit. ( Id.) Part of the compensation packages for the store manager, Bryson, and Ms. Ridge, among others, are tied into the profitability of the Lowe's store. ( Id. at 16-17.)
II. DISCUSSION
Lowe's moves for summary judgment. A motion for summary judgment should be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The facts and all inferences are viewed in the light most favorable to the non-moving party. See Fanslow v. Chicago Mfg. Ctr., Inc., 384 F.3d 469, 478 (7th Cir. 2004). Not all facts are material; only disputes over facts that might affect the outcome of the suit under the governing law preclude summary judgment. Id.
Under Indiana law, an employee who is discharged in retaliation for filing a worker's compensation claim may recover damages for wrongful termination. Mack v. Great Dane Trailers, 308 F.3d 776, 784 (7th Cir. 2002); Frampton v. Cent. Ind. Gas Co., 297 N.E.2d 425, 428 (Ind. 1973). A plaintiff making a Frampton claim can survive summary judgment if she produces direct or indirect evidence which would support a finding that her discharge was caused by the filing of a worker's compensation claim. Mack, 308 F.3d at 784; Goetzke v. Ferro Corp., 280 F.3d 766, 774 (7th Cir. 2002); Markley Enters., Inc. v. Grover, 716 N.E.2d 559, 565 (Ind.Ct.App. 1999). The proximity in time between the filing of the claim and the discharge, when considered with the other circumstances, may permit an inference of causation. Mack, 308 F.3d at 784; Goetzke, 280 F.3d at 774; Markley, 716 N.E.2d at 565. Causation also may be inferred from "evidence that the employer's proffered reason for the discharge is `patently inconsistent with the evidence before the court.'" Mack, 308 F.3d at 784 (quoting Markley, 716 N.E.2d at 565); see also Goetzke, 280 F.3d at 774.
Ms. Gray contends that a jury reasonably could infer that she was discharged because she filed a claim for worker's compensation benefits. She first contends that causation may be inferred from the close temporal proximity between the filing of her claim and her discharge. Lowe's responds that too much time passed between the two events. In so arguing, it relies on two cases in which shorter periods of time were found insufficient to raise a reasonable inference of causation in a retaliatory discharge claim. See Lewis v. Holsum of Fort Wayne, Inc., 278 F.3d 706, 711 (7th Cir. 2002); Sauzek v. Exxon Coal USA, Inc., 202 F.3d 913, 918 (7th Cir. 2000). However, in these cases the proximity in time was the only evidence the plaintiffs had to support an inference of causation. Thus, as will be seen below, these cases are distinguishable. Close proximity in time when coupled with other circumstances may raise an inference of causation. Other courts have concluded that a six-month lapse of time between the filing of a worker's compensation claim and a discharge may support an inference of retaliatory intent, i.e., causation. Pepkowski v. Life of Ind. Ins. Co., 535 N.E.2d 1164, 1167-68 (Ind. 1989); Markley, 716 N.E.2d at 565. Ms. Gray filed her claim for worker's compensation benefits in September 2002 and was discharged in December 2002. Thus, this brief passage of time is insufficient by itself to negate any possible inference of causation.
Lowe's next argues that the timing does not suggest a causal connection because Lowe's encouraged Ms. Gray to take worker's compensation leave and she was discharged only after her benefits had terminated. The fact that Lowe's encouraged her to take the leave may weigh against her claim; however, given the other evidence, the weight to be given this fact is for a jury. The fact that Ms. Gray's termination came after her benefits had ended supports more than one reasonable inference, and the court must draw all reasonable inferences in favor of Ms. Gray since she is the nonmovant. Indiana courts acknowledge that:
one of the reasons for the Frampton rule is to prevent the employer from terminating the employment of one employee in a manner which sends a message to other employees that they will lose their job if they exercise their right to worker's compensation benefits. Terminating an employee for filing a claim obviously has a deleterious effect on the exercise of this important, statutory right.Powdertech, Inc. v. Joganic, 776 N.E.2d 1251, 1261 (Ind.Ct.App. 2002) (quotation omitted). Even if the decision to terminate Ms. Gray's employment could not have been motivated by a desire to avoid paying her worker's compensation benefits, under the circumstances of this case, one reasonably could infer that the decision was made in order to send a message to other employees who might contemplate filing a worker's compensation claim, i.e., that they would risk their jobs by doing so.
It is undisputed that Mr. Bryson made the decision to terminate Ms. Gray's employment and knew at the time he made the decision that she had filed a claim for worker's compensation benefits. The evidence supports a reasonable inference that Mr. Bryson had something economic to gain by discouraging other employees from exercising their rights to file worker's compensation claims — his compensation package was tied to the store's profitability and the store had to pay every expense which it incurred, including expenses of a worker's compensation claim. This evidence when considered with the temporal proximity between Ms. Gray's filing and her discharge is sufficient to raise a genuine issue as to causation and the reason for her discharge. Additional evidence further supports an inference of causation.
Ms. Gray has offered evidence which allows a reasonable inference that Lowe's stated reason for her discharge is inconsistent with other record evidence. Lowe's states that Mr. Bryson discharged Ms. Gray because he believed she repeatedly violated several company policies. It argues that Ms. Gray cannot show pretext because 1) Mr. Bryson knew her worker's compensation benefits had ended when he discharged her and thus had nothing to gain by discharging her in December 2002, 2) he had encouraged her to take worker's compensation leave, 3) unlike a typical Frampton case, he never insisted she return to work, never indicated that it was inconvenient to him or Lowe's for her to be on leave, and never tried to interfere with her receipt of benefits, and 4) she has no evidence that Mr. Bryson or any other Lowe's employee held any malice toward her because of her worker's compensation claim. Though this may not be the most egregious example of a Frampton retaliatory discharge, Ms. Gray has sufficient evidence to show pretext. As stated, the evidence supports a finding that Mr. Bryson had something monetary to gain by discouraging other employees from filing worker's compensation claims. The fact that Ms. Gray's own benefits had ended does not negate this incentive.
Moreover, the circumstances of her termination raise a reasonable inference that the stated reason for her discharge was manufactured. An employer's failure to follow its own progressive disciplinary procedures by itself may not support an inference of discriminatory motive or pretext, but when combined with other evidence, the failure may support such an inference. See, e.g., Futrell v. J.I. Case, 38 F.3d 342, 348 (7th Cir. 1994). Plaintiff has offered evidence that suggests Lowe's employee disciplinary policy was intended to be progressive. Lowe's Employee Performance Reports themselves reasonably can be viewed as suggesting progressive disciplinary action was to be taken ( see Pl.'s App., Ex. 1 (Employee Performance Reports under section "Type of Notice" providing for initial report, written report, final notice and termination)). Such progressive discipline was not followed with respect to Ms. Gray, though. Instead, she was handed six write-ups — one write-up for conduct which allegedly occurred almost four months earlier — all on a single occasion and she was discharged at the same time. Thus, she was never afforded the benefit of notice and an opportunity to improve her performance before being discharged.
Despite Mr. Bryson's explanation that he simply had no opportunity to give Ms. Gray a write-up for the claimed policy violation related to her work injury, it is curious that he waited until after he decided to fire her to give her a write-up for that conduct. The court employs the phrase "claimed violation" since Lowe's has not directed the court to any evidence which substantiates its claim that Ms. Gray, as the injured employee, was required under its policy to report the incident to a manager on duty. The policy language on which Lowe's relies on simply says that the injury must be reported to "management." It is undisputed that Ms. Nalley was a manager and was present and witnessed Ms. Gray's injury. Thus, a jury could reasonably find that Ms. Gray did not violate the policy.
Even if Lowe's own policies and procedures did not provide for progressive discipline leading up to termination, Plaintiff has asserted that Mr. Bryson failed to comply with Lowe's Management Policy No. 209 by discharging her without first contacting a higher level manager. The evidence she cited for support establish that he did not contact the District Manager before firing her, but the policy says the Regional HR Director or Logistics HR Manager should be contacted. Nonetheless, it is noted that Lowe's did not dispute Ms. Gray's assertion that Mr. Bryson made the decision on his own without contacting anyone at a management level above him. If the evidence at trial bears out Ms. Gray's position, such evidence may offer additional support for an inference of causation.
Furthermore, Ms. Gray had sought review by the state worker's compensation board of the decision to terminate her benefits a few weeks before her discharge and even retained legal counsel to represent her. There is no indication that her dispute was resolved before her termination. The fact that she sought such review and retained legal counsel to pursue her worker's compensation claim also may have played a role in the decision to discharge her.
In addition, the record contains some inconsistencies regarding the reason for Ms. Gray's discharge and the timing of that decision. One of the write-ups of December 26 reflects that it resulted in her termination and none of the earlier write-ups indicates that the consequence was termination. However, Mr. Bryson testified he decided on Christmas Eve to terminate her employment, but waited until after the holiday to execute his decision. (Bryson Dep. at 74-75.) Then surprisingly, the evidence is that after deciding to discharge her, he called her into work on December 26. Plaintiff claims this was done in an effort to build a case against her to justify firing her, but the court need not decide this question as it is for the jury. Regardless, these circumstances are fishy. Perhaps Ms. Gray was the only employee not scheduled to work whom Lowe's could call into work the day after the Christmas holiday, but there is no evidence of this in the record. Perhaps Plaintiff is right and Mr. Bryson was just hoping to build a case against her. The evidence that Lowe's preserved portions of the store's surveillance videotapes of Ms. Gray's activities on December 22 and 26 may strengthen this inference. Other evidence which may make retaliatory discharge a fair inference is that during 2002, Ms. Gray was the only employee who had a worker's compensation injury and claim which caused her to miss any days of work. (Pl.'s App., Ex. 9 (Lowe's 2002 OSHA Log of Work-Related Injuries and Illnesses.))
The court need not delve into the issues which may arise regarding spoliation of evidence now. Plaintiff has enough evidence to reach a jury without any adverse inference being drawn from the alleged spoliation.
Thus, Ms. Gray has produced evidence which casts doubt on Lowe's stated reasons for her discharge. This evidence along with the close proximity in timing between the filing of her worker's compensation claim and her discharge creates a genuine issue of material fact requiring trial.
III. CONCLUSION
Ms. Gray has presented sufficient evidence which would allow a reasonable jury to find in her favor. Therefore, Lowe's motion for summary judgment (dkt. #29) is DENIED. This cause remains set for jury trial to commence on February 14, 2005, before the undersigned and for a final pretrial conference on January 27, 2005, before Magistrate Judge William G. Hussmann, Jr.
ALL OF WHICH IS ENTERED.