Kristin Kepreos v. Alcon Laboratories, Inc., et al

Filing

Per Curiam OPINION filed : AFFIRMED, decision not for publication. Martha Craig Daughtrey, Circuit Judge; Raymond M. Kethledge, Circuit Judge and Bernice Bouie Donald, Circuit Judge.

Case: 11-4134

Document: 006111642301

Filed: 04/03/2013

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0326n.06
No. 11-4134
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
Apr 03, 2013

KRISTIN KEPREOS,
Plaintiff-Appellant,
v.
ALCON LABORATORIES, INC., and
CRAIG VLAANDEREN,
Defendants-Appellees.

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DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OHIO

Before: DAUGHTREY, KETHLEDGE, and DONALD, Circuit Judges.

PER CURIAM. Plaintiff Kristin Kepreos formerly worked for defendant Alcon
Laboratories as an account manager, in charge of promoting the sale of Alcon’s refractive
lenses to physicians’ offices and clinics in Northern Ohio. Alcon was headquartered in
Texas; Kepreos worked out of an office in her home in Chagrin Falls, Ohio. She sued the
company and several Alcon officers and managers, claiming that she had been terminated
from her position in violation of the Employee Retirement Income Security Act (ERISA), 29
U.S.C. §§ 1001 - 1461; Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e 2000e-17; the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 - 12213; and
various provisions of Ohio state law that parallel those federal statutes. She also alleged
that the defendants maintained a work environment that was sexually demeaning to

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women and that the defendants were liable under state law for intentional infliction of
emotional distress and violation of Ohio’s public policy. The district court dismissed three
individual defendants from the suit, finding – correctly, we conclude – that the court lacked
personal jurisdiction over them. After both the plaintiff and the remaining defendants filed
motions for summary judgment, the district court denied the plaintiff’s motion and granted
summary judgment to the defendants.

That decision in favor of the defendants was predicated, first, upon the court’s
conclusion that Kepreos had failed to exhaust her administrative remedies with regard to
the claims based on Title VII and the ADA. The plaintiff has not appealed that ruling and,
thus, has effectively abandoned those federal claims. Moreover, because her ADA claim
was “associational” in nature and because Ohio’s disability-discrimination statute does not
provide for such a claim, see generally Ohio Revised Code Ch. 4112, the district court
correctly ruled that the plaintiff could not assert it under state law. The district court also
held that there was no evidence to support the claim that the employer had interfered with
the plaintiff’s ERISA rights by terminating her in order to defeat her entitlement to health
benefits for her daughter, who suffered from a cardiac ailment.

As for the other discrimination claims based on the Ohio statutes, the district court
properly held that even if Kepreos could establish a prima facie case, she had not
produced any proof that Alcon’s reason for her termination was pretextual. The company
proffered evidence that Kepreos had engaged in repeated instances of abuse of the Alcon

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credit card that had been given her to cover legitimate business expenses. She had
repeatedly charged personal items on the card but logged them on her expense account
as “office supplies,” and she had purchased gift cards on several occasions, some for as
much as $100. If she then used them for herself or her family, the result was clearly theft
from the company.

If, as she said, she had given them to prospective clients as

“incentives” to do business with Alcon, she had violated well-established company policy.
Both possibilities were considered grounds for termination. Moreover, when confronted
about the credit card abuse, Kepreos resorted to deception, giving what amounted to
preposterous excuses for her conduct and claiming that she had offset personal expenses
on her business card with business expenses on her personal credit card. Kepreos’s
figures purportedly showed that Alcon owed her money, but the appellate record
establishes that many of the unauthorized purchases she made with the business card had
not been included in her calculations.

The district court also discounted the plaintiff’s allegations regarding the existence
of a hostile work environment, finding that the instances of sexual harassment that
Kepreos identified were both isolated and few in number – not surprising, given the fact
that most of her work for the company was conducted from her home office – and that she
had failed to follow the company’s established process for reporting those instances.
“Accepting all of plaintiff’s evidence,” the district court held, “no [reasonable jury] could
determine that the workplace was permeated with discriminatory intimidation, ridicule, and

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insult sufficiently severe and pervasive so as to alter plaintiff’s conditions of employment,”
citing Grace v. USCAR, 521 F.3d 655, 678 (6th Cir. 2008).

Finally, the district court found no merit to the plaintiff’s claim that replacing her with
the son of another Alcon employee amounted to sex discrimination, especially in light of
her deposition testimony in which she denied that her termination was based on gender.
The district court likewise discounted the state-law tort claims based on allegations of
intentional infliction of emotional distress and violation of state public policy, finding that the
plaintiff had failed to satisfy the elements of those claims.

The only other matter raised on appeal concerns the district court’s ruling that
denied the plaintiff’s motion to compel discovery of various Alcon officers’ personnel files
and records pertaining to their expense accounts. The district court found that the
requests were overly broad in scope and not reasonably calculated to lead to the
production of admissible evidence. See Fed. R. Civ. P. 26(b)(1). Reveiwing the district
court’s decision for abuse of discretion, we find none.

Having studied the record on appeal and the briefs of the parties, we are not
persuaded that the district court erred in dismissing the complaint. Because the reasons
why judgment should be entered for the defendants have been fully articulated by the
district court, the issuance of an additional detailed opinion by this court would be
duplicative and would serve no useful jurisprudential purpose. Accordingly, we AFFIRM
the judgment of the district court based upon the reasoning set out by that court in its order
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denying the plaintiff’s motion to compel production of documents, dated March 11, 2011;
in its memorandum opinion and order dismissing three individual defendants, dated
June 6, 2011; and in its memorandum opinion and order granting the defendants summary
judgment, dated November 9, 2011.

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