Trumbull v. Service Corporation International (SCI)

Filing 96

MOTION by Plaintiff Nancy Trumbull for judgment Motion for Relief from Judgment and in the Alternative Motion to Alter or Amend Judgment (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Supplement 10, # 9 Supplement 19, # 10 Supplement 29)(Greene, Martin)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
NANCY TRUMBULL,

v.
SCI ILLINOIS SERVICES,
ROSEHILL CEMETARY,

)
)
Plaintiff, ) Case No: 12-CV-00321
)
) Judge St. Eve
)
INC. d/b/a ) Magistrate Judge Maria Valdez
)
)
Defendant. )

PLAINTIFF, NANCY TRUMBULL’S, SECOND AMENDED STATEMENT OF ADDITIONAL
MATERIAL FACTS PURSUANT TO LOCAL RULE 56.1(B)(3)(C)
NOW COMES Plaintiff, NANCY TRUMBULL (“Trumbull” or “Plaintiff”), by and through
her attorneys, Eileen M. Letts, Martin P. Greene and Kevin T. Lee of the law firm of Greene and
Letts, and submits the following Statement of Additional Material Facts in Opposition to
Defendant, SCI ILLINOIS SERVICES, INC.’s, Motion for Summary Judgment.
1.

It is the goal of Defendant to strive for sales counselors to write 2 to 3 pre-need

contracts for every at-need contract they write. (Def.’s Ex. B, Michael Dep., at 95:9-24. 96:4).
2.

Defendant could make more money off pre-need contracts than it could make off

at-need contracts. (Ex. 1, Hayes Dep., at 56:14-24, 57:9).
3.

A Securities and Exchange Commission filing for Defendant (Form 10-Q) on

October 25, 2012, sets out the company’s view of the desirability of pre-need contracts:
Pre-need selling provides us with a current opportunity to lock-in future market
share while deterring the customer from going to a competitor in the future. We
believe it adds to the stability and predictability of our revenue and cash flows.
(See, http://biz.yahoo.com/e/121025/sci10-q.html).
4.

During the time that Lenny Hayes was General Manager at Rosehill cemetery,

sales counselors sometimes would use the wrong contract and that happened possibly more
than 15 times. (Ex. 1, Hayes Dep., at 46:16-24, 47:1-5).

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5.

When a sales counselor would use the wrong contract, what was typically done

was that the counselor would be sent back to the family to have the contract re-written. (Ex. 1,
Hayes Dep., at 47:6-24, 47:1-17).
6.

Lenny Hayes could not think of anyone else who was fired for using a pre-need

contact when an at-need contract should have been used, or vice versa. (Hayes Dep. 1, at
47:18-24, 48: 1-4).
7.

David Klein did not consider providing plaintiff with additional training in lieu of

termination nor did he consider a written warning rather than termination. (Def.’s Ex. E, Klein
Dep., at 45:16-23).
8.

Gary Ritter did not ask Bob Caramusa if he instructed plaintiff to write the

Charles Hall contract as pre-need. (Ex. 3, Pl.’s Req. for Admis. Directed to Def., ¶ 4).
9.

Larry Michael did not ask Bob Caramusa if he instructed plaintiff to write the

Charles Hall contract as pre-need. (Ex. 3, Pl.’s Req. for Admis. Directed to Def., ¶ 3).
10.

David Klein did not ask Bob Caramusa if he instructed plaintiff to write the

Charles Hall contract as pre-need. (Ex. 3, Pl.’s Req. for Admis. Directed to Def., ¶ 3).
11.

Trumbull made every effort to keep management informed of precisely what she

was doing. (Ex. 2, Trumbull Dep., at 349:20-24, 350:1-15). Her process was to make the
general manager, Lenny Hayes, aware of anything that was out of the ordinary and she did not
attempt to hide any of her work on the Charles Hall contract. (Ex. 2, Trumbull Dep., at 349:2024, 350:1-15).
12.

According to defendant’s own documents, management received notice of

possible offending contact on September 5, 2008 by an email from Bob LaVoncher to David
Klein and Gary Ritter. (Def.’s Ex. D, Klein Decl. at ¶ 3 & Ex. 1 at SCI00674).
13.

At the time, the burial had not taken place.

14.

Bob LaVoncher’s email of September 5, 2008, was 38 days after he received a

written warning as a “result of allegations made by Nancy Trumbull,” including claims that

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LaVoncher “harassed, discriminated, and accused Nancy of lying.” (Def.’s Ex. D, Klein Decl. at
¶ 7 and Ex. 4 at SCI00189).
15.

LaVoncher was specifically warned that a “failure to follow any Company policy

or procedure may lead to further disciplinary action up to and including termination” of
employment. (Def.’s Ex. D, Klein Decl. at ¶ 7 and Ex. 4 at SCI00190).
16.

Management at Rosehill subsequently allowed the burial to be completed on or

about September 30, 2008. (Ex. 4; Trumbull Aff., at ¶¶ 37-40).
17.

Further, according to the documents submitted by defendant, Klein waited until

September 30, 2008, three days after the burial, to contact Jeffrey Craig, the Chicago Market
Sales Director, for clarification. (Def.’s Ex. D, Klein Decl. at ¶ 4 & Ex. 2 at SCI00686).
18.

Klein’s declaration states that he received a response for Jeffrey Craig by

telephone and that Craig told him…”that if Ms. Trumbull had written a pre-need cemetery
contract for someone in advance of death, then she had violated SCI’s sales policies and
procedures.” (Def.’s Ex. D, Klein Decl. at ¶ 4).
19.

Mr. Klein testified in his deposition that, “a pre-need contract is only written for

the living. An at-need contract is only written for the dead”. (Def.’s Ex. E, Klein Dep., at 21:510; 25).
20.

Defendant’s submissions do not seek to clarify or otherwise explain the

inconsistencies between these two statements from David Klein.
21.

Bob Caramusa was in the process of being terminated at the same time as the

investigation into the Trumbull alleged policy violation. (Ex. 5, at SCI 02100 – 02108).
22.

Larry Michael was the decision maker for both the Trumbull and the Caramusa

terminations. (Def.’s Ex. C, Michael Dep., at 45:6-24, 46:9-11).
23.

Michael claimed in his deposition that Bob Caramusa was fired for a “violation of

company policy.” (Def.’s Ex. C, Michael Dep., at 46:10-14).

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24.

Handwritten notes of Gary Ritter contain notations of a meeting of January 12,

2009. (Ex. 5, at SCI 02100-02102) In attendance were Bob Caramusa, David Klein and Gary
Ritter. (Ex. 5, at SCI 02100-02102). The notes reflect conversations about honesty, particularly
as it related to a manager.
25.

There is a specific mention of an occurrence of two months prior. There is also a

specific statement, “Bob lied Friday to David (per David)”. (Ex. 5, at SCI 02101). The Friday
prior to January 12, 2009 was January 9, 2009.
26.

David Klein went on to say “tough decision but because of dishonesty, lack of full

disclosure which is against company policy & the dignity promise we have decided to terminate
employment effective today.” (Ex. 5, at SCI 02101).
27.

On March 6, 2013, Larry Michael sat for his deposition. At that time he said the
opposite:
2 Q. In the conversation with Bob, did you say
3 anything to the effect of "[w]e're conducting an
4 investigation of Nancy Trumbull related to a particular
5 contract. Did you ever tell her that she should write a
6 contract as a pre-need instead of an at-need" or
7 anything to that effect?
8 A. Most likely, I had a conversation something
9 like that, along those lines.
10 Q. What did he tell you?
11 A. As I recollect, he told me that -- not in
12 this order necessarily, but that he clearly understood
13 the policy of at-need. At-need was to be a written
14 contract for anybody deceased, irregardless (sic) of how long
15 they've been deceased or how long in the future they
16 intended to plan the internment, entombment or
17 inurement. He understood what a pre-need contract was
18 for, that it was clearly for somebody that had never
19 passed away yet.
20 As far as the details related to the Nancy
21 Trumbull incident, I asked him about that. And, again,
22 best of my recollection, we discussed the details
23 relative to that and he stated that he had not
24 instructed her to write an at-need service up on a
Page 55
1 pre-need contract. (Emphasis added). (Def.’s Ex. C, Michael Dep., at 54: 2-24,

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55:1).
28.

A part of Trumbull’s explanation to Gary Ritter on January 7, 2009 was that there

were other employees who were given the same instructions by Caramusa as Trumbull with
respect to how to write contracts. (Def.’s Ex. C, Michael Dep., at 59:14-24, 60:1-3). There does
not appear to have been any investigation into that portion of Trumbull’s explanation. (Def.’s
Ex. C, Michael Dep., 59:14-24, 60:3).
29.

Plaintiff was not terminated for:

"theft, falsifying company records, being

deceitful, and engaging in any form of fraudulent activity." (See Def.’s SOF ¶ 14). According to
the February 18, 2009 letter advising Plaintiff of her termination, defendant stated:
Accordingly, after reviewing and giving due consideration to your explanation, the
Company has made the decision to terminate your employment as of today for violation
of the sales policies and practices". (Def.'s Ex. 19, NT001267).
At no point in that letter did defendant reference "theft, falsifying company records, being
deceitful, and engaging in any form of fraudulent activity" as its reasons for terminating plaintiff’s
employment.
30.

Gary Ritter, one of the persons involved in the decision to terminate plaintiff,

authored a document entitled "Nancy Trumbull Recap." (Def.’s Ex B, Ritter Dep., at 140:11-22).
The recap contains the following entry:
October 14, 2008 meeting with Amy with approval to terminate (No Fraud)." (Ex. 6, at
SCI 00667).
Moreover, Larry Michael testified in his deposition that Trumbull was not terminated for fraud.
(Def.’s Ex. C, Michael Dep., at 75:13-15).
31.

Defendant’s Family Services Guidebook contains a different definition of At-Need

and Pre-Need than its North American Sales Cemetery and Preneed Funeral Sales Policy. The
Family Services Guidebook defines Pre-need as:
Preneed sales are all sales made in advance of death. All sales contracts not specified
as at-need sales are considered preneed. See appropriate sections of the Cemetery
Manual for further explanation.“ (Ex. 2, Trumbull Dep. & Exhibit 10, at NT00691,
emphasis added).

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The Family Services Guidebook defines At-need as:
Funeral or cemetery, arrangements made at the time of death. At-need sales
can include interment rights (land spaces, mausoleum or lawn crypt, niches or
um spaces), and merchandise such as bronze or granite markers, granite bases,
vaults, monuments and vases. (Ex. 2, Trumbull Dep. & Exhibit 10, at NT00681).
32.

Plaintiff could not identify Defendant’s North American Sales Cemetery and

Preneed Funeral Sales Policy but she could identify the Family Services Guidebook. (Ex.
2Trumbull Dep., at 101: 8-24; 102:17-23, 108: 17-24; 109:1-5 & Trumbull Ex. 10-11)
33.

Lenny Hayes did not consider the training provided by Caramusa to be adequate.

(Ex. 2, Hayes Dep., 19:22-24, 20:7). Plaintiff testified that someone showed her how to fill out
the respective contracts and that she remembered how one contract was longer than the other.
(Ex. 2, Trumbull Dep., 80:7-15). Plaintiff went on to state that there was nothing else that she
recalled. (Ex. 2, Trumbull Dep., 80:16-17). During Trumbull's initial training, she sat alone in an
off-site meeting room watching "Dignity DVDs” and was instructed by Bob Caramusa to watch
these DVDs without benefit of periodical question and answer periods. (Exhibit 4, Aff. of Nancy
Trumbull, at 46).
34.

When Trumbull's position changed from Family Service Counselor to Community

Service Counselor, she received no additional training regarding the appropriate use of
contracts. (Ex. 3, Answers to Pl.'s Req. for Admis. Directed to Def., 45).
35.

The Defendant’s pre-need and at-need policies do not clearly define how

cremated remains are to be treated. (See Pl’s Resp. to Def.’s SOF ¶ 23). In instances where a
client knows that they want to bury the cremated remains of a family member within a month or
two, or later, the sales counselor would write the contract as pre-need. (Ex. 1, Hayes Dep.,
71:12-24, 72:1). Accordingly, Trumbull asked her manager, Bob Caramusa, for guidance on
how to write the Henle contract. (Ex. 2, Trumbull Dep., 349:1-16. 168:16-20).
36.

Lenny Hayes was the General Manager for the Rosehill cemetery at all times

relevant to this matter. (Ex. 1, Hayes Dep., at 60:12-24). One of Hayes' responsibilities was to

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review, sign, and approve all contracts submitted by sales counselors. (Ex. 1, Hayes Dep., at
60:12-18).

Hayes also relied on his Office Manager, Cathy Uzitas, to review submitted

contracts for errors and flag any irregularities prior to submitting them to Hayes for his approval.
(Ex. 1, Hayes Dep., at 61:1-15). Leonard Hayes, as General Manager, reviewed the Charles
Hall contract. (Ex. 1, Hayes Dep., 78:18-24; 79:11-14).
37.

On April 1, 2008, Plaintiff made a Careline report concerning an incident where

LaVoncher hung up the phone abruptly while she was talking with him and his continuous rude
and curt behavior toward her. (Ex. 2, Trumbull, at 188:20-24; 189: 1-18; 198:21-24; 199:6-17).
38.

On April 2, 2008, Plaintiff addressed her concerns regarding LaVoncher to

Leonard Hayes. (Ex. 2, Trumbull Dep., at 199:18-22; 200:5-8). However, following her
discussion, LaVoncher told Trumbull that she should not have spoken with Hayes regarding the
April 1, 2008 incident. (Ex. 2, Trumbull Dep., at 207:16-20).
39.

On June 20, 2008, Plaintiff placed her second Careline call complaining that

LaVoncher had again hung up the phone on her and was mistreating her and subjected her to a
greater degree of harassment because she is African American. (Ex. 2, Trumbull Dep., 227:824, 228:1-4 & Ex. 29).
40.

On July 19, 2008, another Careline investigator substantiated that LaVoncher

did hang up the phone on Trumbull and often loses his temper with her. (Ex.__Ritter Dep., 57:916). David Klein then issued LaVoncher a written memorandum warning LaVoncher of the
consequences of failing to comply with SCI directives. (Ex.__Ritter Dep., 59:23; 60:1-5; 64:1316).
41.

On August 25, 2008, plaintiff told Careline, "that because she is the only African

American woman there, she wonders if she is being racially discriminated against. (Ex.__,
Trumbull Dep. & Exhibit 29). Plaintiff stated that she did not have any other reason to suspect
she is being discriminated against because of her race. (Ex. 2, Trumbull Dep. & Exhibit 29).

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42.

Plaintiff alleged that LaVoncher stole a sales lead from her. (Ex. 2, Trumbull

Dep., at 272:23-24, 273:1-14).
43.

Gary Ritter conducted an investigation and substantiated Trumbull's April 1, 2008

claims against LaVoncher. (Def.’s Ex. B, Ritter Dep., at 43:18-24, 44:1-8). Accordingly, Ritter
engaged LaVoncher in a "coaching" conversation as a means of corrective action in order to
improve LaVoncher's conduct. (Def.’s Ex. B, Ritter Dep., at 43:18, 44:1-8).
44.

On September 5, 2008, Bob LaVoncher notified SCI management that plaintiff

had written a preneed contract for someone who was deceased. (Def.’s Ex. D, at ¶ 3).
LaVoncher notified SCI management shortly after receiving a verbal and written warning by
management concerning plaintiff’s June 2008 Careline complaint wherein she complained that
LaVoncher may have been subjecting her to harsh, unfair, and discriminatory treatment
because she is African American. (Def.’s Ex. D, at ¶ 7 & Exhibit 4; Ex. 2, Trumbull Dep., 227:824, 228:1-4 & Ex. 29). LaVoncher was counseled on July 29, 2008. (Def.’s Ex. D, Klein Decl.,
at ¶ 7 & Exhibit 4). Accordingly, Bob LaVoncher's notice of the preneed contract was 38 days
subsequent to his having been counseled.
45.

SCI Human Resource policy regarding the investigation of Careline reports

prohibits an assigned HR manager from conducting or otherwise having any input into a
Careline investigation if the manager is named in the charge. (Def.’s Ex. B, Ritter Dep., 54:621). Gary Ritter did not suggest the adoption of a similar policy in investigating Trumbull.
46.

Although Garry Ritter, David Klein, Larry Michael, Bob Caramusa, and Bob

LaVoncher, all participated in the Henle contract investigation, Lenny Hayes and Bob
LaVoncher, almost exclusively, conducted the investigation into the underlying facts. (Def.’s Ex.
E, Klein Dep., at 28:19-24; 29:1-7). David Klein relied on LaVoncher and Hayes’ investigatory
findings, even though he was aware plaintiff had asserted numerous charges of misconduct and
discrimination against LaVoncher. (Def.’s Ex. E, Klein Dep., 27:24, 28:1-8).

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47.

Even though plaintiff named Lenny Hayes him in a Careline Report for failing to

offer a "satisfactory resolution" for her ongoing dispute with LaVoncher, Hayes was permitted to
investigate the underlying facts in the Henle contract matter. (Def.’s Ex. B, Ritter Dep., 51:1-6).
Despite plaintiff’s complaints otherwise, Hayes believed LaVoncher "was doing a good job," and
regarded him as a "nice and generous man," who "didn't seem unfair." (Ex. 1, Hayes Dep.,
29:20-22; 36:7-20). Hayes also did not agree that LaVoncher's conduct in hanging the phone
up on Trumbull warranted discipline. (Ex. 1, Hayes Dep., at 30:11-23).
48.

Despite knowledge that sales counselors often made errors in assigning the

proper contract to cremated remains, SCI conducted no investigation to conducted to determine
whether other sales counselors were incorrectly instructed as to the application of preneed and
at-need contracts in that situation. (Ex. 1, Hayes Dep., at 46:16-19 ).
49.

Hayes testified that in his SCI experience, which spanned over three decades, it

is possible that there were more than 15 incidents of counselors using the wrong contract. (Ex.
1, Hayes Dep., at 46:16-24; 47:1-5). Thus, because of the frequency of the problem, rather
than terminating the offending counselor, SCI management would: (a) sometimes issue a verbal
warning to the counselor-in-error; (b) coach the counselor to explain to the family the contracting
error; and (c) re-write the contract correctly. (Ex. 1, Hayes Dep. 47:6-19). Hayes testified that
he cannot recall SCI ever terminating a counselor for writing the wrong kind of contract. (Ex. 1,
Hayes Dep., 47:18-24; 48:1-4).
50.

David Klein testified that in his 14 years with SCI, he cannot recall anyone being

disciplined for writing the wrong kind of contract. (Def.’s Ex. E, Klein Dep., 50:13-18; 51:1-6). In
fact, Trumbull's Charles Hall contract was the only such contract dispute ever brought to his
attention. (Id. at 51:17-22).
51.

SCI has engaged similarly situated employees in a progressive-like disciplinary

process for clear-cut transgressions of corporate policy. For instance, Tom Bornstein, nonAfrican American former SCI employee, began his SCI career as a FSC but later transferred to

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CSC. (Ex. 1, Hayes Dep., 43:14-20). Bornstein violated SCI's Internment verification procedure;
however, instead of immediate termination for causing the wrongful burial of remains, he was
given a written warning. (Ex. 1, Hayes Dep., at 43:14-24, 44:1-9).
52.

SCI Internment Verification Procedures are some of SCI's most important

because they prevent the burial of a body or remains in the wrong plot, which would leave a
heavy financial cost upon SCI. (Ex. 1, Hayes Dep., 44:7-24; 45:1-3).

In Leonard Hayes'

estimation, violation of Internment Verification Procedures is a more egregious violation than
incorrectly writing a pre-need contract. (Ex. 1, Hayes Dep., . at 46:12-24). Hayes recalls SCI
terminating quite a few employees for violating SCI's Internment Verification procedures. (Ex. 1,
Hayes Dep., at (49:12-24).
53.

Tom Hetman, a non-African American former SCI sales counselor, admitted to

lying directly to Leonard Hayes and Michael Griep and was not terminated. (Ex. 8, Tom Hetman
Personnel File, at SCI 01228). Rather, SCI informed him that "failure to maintain an appropriate
and professional demeanor at all times while in the workplace will result in further disciplinary
action up to and including termination of your employment." (Ex. 8, Tom Hetman Personnel
File, at SCI 01228). Despite Hetman's ultimate termination, SCI rehired him, and Hayes even
put in a good word for him. (Ex. 1, Hayes Dep., at 42:13-24).

X:\MISCELLANEOUS\TRUMBULL 0000-00392\MOTION FOR SUMMARY JUDGMENT\Motion to Reconsider\10 08 2013 Trumbull
v. SCI -- Statement of Additional Facts.docx

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