Norris v. Franciscan Physician Network et al
Filing
95
MEMORANDUM Opinion and Order signed by the Honorable Edmond E. Chang. For the reasons stated in the Opinion, Defendants' summary judgment motions 59 63 are granted. A separate AO-450 judgment shall be entered. The status hearing of 09/20/2018 is vacated. Civil case terminated. Emailed notice(slb, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CHRISTINE NORRIS,
Plaintiff,
v.
FRANCISCAN PHYSICIAN NETWORK /
SPECIALTY PHYSICIANS OF ILLINOIS,
CRAIG MILLER, NITA WIRKUS,
SHEREE BOYD, and MICHELLE
BURGIO,
Defendants.
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No. 15 C 1494
Judge Edmond E. Chang
MEMORANDUM OPINION AND ORDER
In October 2013, Christine Norris was summoned to active military duty.
Norris asserts that when she returned to work a year later, she was demoted and
subjected to a campaign of bullying and harassment based on hostility to her military
service.1 See generally R. 19, Am. Compl.2 Norris filed this lawsuit claiming
intentional infliction of emotional distress and violations of the Uniformed Services
Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4301 et seq. The
Defendants—Norris’s employer and various supervisors—moved for summary
judgment. R. 61, SPI Mot. Summ. J.; R. 66, Indiv. Defs.’ Mot. Summ. J.3 For the
reasons explained below, summary judgment is granted on all claims.
1The
Court has jurisdiction over the USERRA claims under 28 U.S.C. § 1331, and
supplemental jurisdiction over the state law claim under 28 U.S.C. § 1367.
2Citations to the record are “R.” followed by the docket number and a page or
paragraph number.
3Sealed versions of these motions were filed at R. 59 and R. 63, respectively.
1
I. Background
In deciding the motions for summary judgment, the Court views the evidence
in the light most favorable to Norris, the non-moving party. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Christine Norris is a captain in
the United States Army. Am. Compl. ¶ 1. In 2012, she was hired by Defendant
Specialty Physicians, Inc. (“SPI” for short) as a nurse practitioner. R. 62, SPI SOF
¶ 1.4 Norris was initially assigned to the “Priority Patient First Clinic” (which the
parties refer to as the “PPFC”). Id. ¶ 5. The PPFC is an urgent care clinic for patients
who need same-day care. Id. ¶ 7. While Norris was assigned to the PPFC, she was
the sole health care provider for the clinic. Id. ¶ 8. Norris asserts that she was
recruited and hired specifically to open and run the PPFC. R. 74, PSOF ¶ 67.
In October 2013, Norris was called to active military duty. She was away from
her job on military leave for a year, until late September 2014. Pl. Resp. SPI SOF
¶ 13.
4Citations
to the parties’ Local Rule 56.1 Statements of Facts are as follows: “SPI SOF”
for Defendant Specialty Physicians’ Statement of Facts [R. 62; sealed unredacted version at
R. 60]; “Indiv. Defs.’ SOF” for the Individual Defendants’ Statement of Facts [R. 65]; “Pl.
Resp. SPI SOF” and “Pl. Resp. Indiv. Defs.’ SOF” for Norris’s Responses to the defendants’
respective Statements of Facts [R. 74 and R. 77, respectively; the sealed version of R. 74 can
be found at R. 76]; “PSOF” for the Statement of Additional Facts offered along with Norris’s
Response to SPI’s Statement of Facts [R. 74 and R. 76]; “Second PSOF” for the Statement of
Additional Facts offered along with Norris’s Response to the Individual Defendants’
Statement of Facts [R. 77]; “SPI Resp. PSOF” for SPI’s Response to Norris’s Statement of
Additional Facts [R. 83, sealed version at R. 81]; and “Indiv. Defs.’ Resp. PSOF” for the
Individual Defendants’ Response to Norris’s Statement of Additional Facts [R. 86].
2
A. Retirement Account
In May 2014, while Norris was on military leave, her 401(k) account was
terminated. PSOF ¶ 93. According to Norris, the account was not fully corrected and
restored until March 2015. Id. Defendant Nita Wirkus, who was the head of human
resources at SPI, was the one who terminated the account. R.77, Pl. Resp. Indiv. Defs.’
SOF ¶ 15; R. 77, Second PSOF ¶¶ 46-47. SPI and Wirkus argue that the termination
of the 401(k) was simply an administrative blunder caused by an internal decision to
list Norris as “inactive” during her military leave, not knowing that would result in
the 401(k) provider terminating the account. Indiv. Defs.’ SOF ¶ 15. Norris disputes
that version of the facts, and argues that the termination of the 401(k) was a
malicious act of retaliation against her for taking military leave. Pl. Resp. Indiv.
Defs.’ SOF ¶ 15; R. 75, Pl. Resp. to SPI Br. at 8. Norris admits, however, that when
she contacted SPI to inquire about the termination, they quickly sent an email
marked “high importance” to try to resolve the issue. Pl. Resp. Indiv. Defs.’ SOF ¶ 14.
The Defendants argue that the issue was resolved within half an hour, but Norris
asserts that the account was not fully restored for almost a year after that. Id.
B. Assignment to the Family Practice Clinic
When Norris returned to her job at SPI after military leave, she was not
returned to her former position at the PPFC. In fact, Norris assets that when she first
reported to work after her absence, there was no job ready for her, and she waited in
the human resources office for two days before receiving a job assignment. Pl. Resp.
SPI SOF ¶ 20. When Norris finally got an assignment, it was not the one she wanted.
3
Instead of being assigned to the PPFC clinic, Norris was assigned to the Family
Practice Clinic (which the parties abbreviate as “the FPC”). Id.
Norris saw her reassignment to the FPC as a demotion. PSOF ¶ 75. SPI
disputes that the position at the FPC was inferior to the previously assigned clinic,
and says that Norris actually got a raise when she was assigned to the FPC. SPI Resp.
PSOF ¶ 75. But Norris points out that at the FPC she was only one of a group of
family practice physicians at a clinic with multiple locations and provider options.
PSOF ¶ 77. The PPFC (the prior clinic), on the other hand, was a standalone clinic
run by a mid-level practitioner like Norris, and that mid-level practitioner was the
only health care provider at the PPFC. PSOF ¶¶ 76-77. So from Norris’s point of view,
the FPC was a step down in terms of responsibility and independence.
Norris also contends that her assignment to the FPC was a step down in pay.
Norris asserts that throughout her employment, she was eligible for a bonus of
$15,000-$20,000 depending on how many patients she saw. PSOF ¶ 78. Norris argues
that she had a greater opportunity to earn bonuses at the PPFC for two reasons. First,
the PPFC had separate marketing materials, distributed to patients, and those
materials featured Norris. PSOF ¶ 79. Second, Norris was the only provider at the
PPFC, so all the patients that came into the clinic could only see Norris. Id. SPI
argues, however, that the bonus program was eliminated for mid-level providers
throughout the company before Norris returned from military service. SPI SOF ¶ 16;
SPI SOF Exh. 17, Miller Aff. ¶ 3.
4
C. Interference with Patient Scheduling
Norris avers that, once she was assigned to the FPC, SPI and its agents
sabotaged her work by directing patients away from her and failing to advertise her
availability as a care provider. For example, in November 2014, one of the physicians
at the FPC, Dr. Luebbe, retired. See Pl. Resp. SPI SOF ¶ 23. SPI sent out a flyer
discussing the retirement and listing providers that his patients could see for care in
his absence. Id. The flyer did not list Norris’s name. PSOF Exh. 10. SPI points out,
however, that it later sent an electronic message to 200 of Dr. Luebbe’s patients
informing them that Norris was available for appointments and listing her contact
information. SPI SOF ¶ 30.
In addition to the snafu over Dr. Luebbe’s retirement, Norris alleges that SPI
patient service representatives directed patients away from her by giving them
misleading information about her ability to prescribe medication. PSOF ¶ 82; PSOF
Exh. 20. Patients complained about being directed away from Norris, but Norris
asserts that SPI—and in particular, individual Defendants Sheree Boyd and Craig
Miller—failed to investigate the complaints. PSOF ¶¶ 82-83. The Defendants do not
deny that some patient representatives directed patients away from Norris and gave
out incorrect information about her prescription privileges. But SPI says that it took
appropriate steps to respond to the problem, including educating the manager of the
patient service representatives about the ability of mid-level providers to prescribe
medication, and retraining the representatives to ensure that they knew to offer
patients appointments with Norris. SPI SOF ¶¶ 28-29.
5
D. Scheduling Complaints at the PPFC
In March 2015, Norris was restored to her position at the PPFC. SPI SOF ¶ 31.
Unfortunately, the change in position did not alleviate the conflict between Norris
and her employer. To the contrary, Norris asserts that the Defendants took steps to
harass her by making her working conditions at the PPFC difficult. Specifically,
Norris alleges that Defendant Michele Burgio scheduled Norris to see 6-7 patients
per hour when SPI’s policy only allowed 5 per hour. PSOF ¶¶ 86-87. The schedule set
up by Burgio allowed Norris to be double-booked every 15 minutes, instead of once
per hour, which was SPI’s policy. PSOF ¶ 86. Norris maintains that her schedule was
much busier than that of another provider at her level, and that she did not have
comparable breaks in her schedule. PSOF ¶ 88.
Norris also argues that SPI interfered with her ability to attend school by
refusing to change her work schedule to accommodate her evening class. PSOF ¶ 90.
Before Norris went on military leave, SPI had accommodated her education by not
requiring her to use paid time off to attend class. PSOF ¶ 89. At that time, Burgio
would refrain from scheduling patients with Norris for the last time slot of the day,
which allowed Norris to leave early for school. Id. But after Norris returned from
military leave, SPI required Norris to use paid time off to attend class. PSOF ¶ 90.
Norris tried repeatedly to negotiate a schedule that allowed her to attend class one
night a week, but SPI did not allow Norris to adjust the schedule to accommodate her
class. Id. ¶¶ 90-91.
6
E. Disciplinary Actions and Eventual Departure
Apart from the problems with patient scheduling, Norris alleges that she
received unfair discipline that caused her to feel harassed and to doubt her future
employment with SPI. The first disciplinary action, dated March 17, 2015, was
written counseling about Norris’s work performance. SPI SOF ¶ 38. Norris says that
the counseling was unfair because the underlying offense—moving a patient to
another provider’s schedule—was a permissible practice at her place of employment,
and other providers did it as well. PSOF ¶ 94. SPI disagrees with that
characterization, pointing out that the counseling was for “unsatisfactory work
performance and insubordination,” not just for moving the patient to another
schedule. SPI Resp. PSOF ¶ 94. Norris denies that she was insubordinate. R. 76,
PSOF Exh. 1, Norris Dep. at 157:11-158:14, 160:14-161:8 (sealed).5
Shortly after the written counseling, SPI sent Norris correspondence informing
her that she was expected to work all clinic hours unless she used paid time off. SPI
SOF ¶ 39. Despite two warnings along those lines, on March 30, Norris left work at
4:00 p.m. (which was within clinic hours) to attend class, even though Norris did not
have PTO to cover the absence. SPI SOF ¶ 40. Norris received a written warning for
leaving work early. Id. According to SPI policy, a written warning is the second-to-
5The
parties proposed to seal the entirety of Norris’s deposition. Although some of the
deposition discusses private information, parts of it clearly do not meet the Seventh Circuit’s
standard for sealing. See, e.g., Citizens First Nat. Bank of Princeton v. Cincinnati Ins. Co.¸
178 F.3d 943, 945 (7th Cir. 1999) (noting that judicial proceedings are presumptively open to
the public unless the litigants’ privacy and property interests predominate); Cty. Materials
Corp. v. Allan Block Corp., 502 F.3d 730, 740 (7th Cir. 2007) (same). The Court therefore
decided to make some parts of the deposition public in this Opinion.
7
last step before termination. PSOF ¶ 92.
Norris resigned soon after receiving the written warning. See SPI SOF ¶ 1.
Norris claims that she resigned because of “hostile work environment, feeling
harassed, … working in fear, second guessing herself because she had received
multiple write-ups, and that she was unable to provide good patient care in the
circumstances she was placed under due to scheduling.” PSOF ¶ 95.
II. Legal Standard
Summary judgment must be granted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A genuine issue of material fact exists if “the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In evaluating
summary judgment motions, courts must view the facts and draw reasonable
inferences in the light most favorable to the non-moving party. Scott v. Harris, 550
U.S. 372, 378 (2007). The Court may not weigh conflicting evidence or make
credibility determinations, Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697,
704 (7th Cir. 2011), and must consider only evidence that can “be presented in a form
that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). The party seeking
summary judgment has the initial burden of showing that there is no genuine dispute
and that they are entitled to judgment as a matter of law. Carmichael v. Village of
Palatine, 605 F.3d 451, 460 (7th Cir. 2010); see also Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986); Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008). If this burden
8
is met, the adverse party must then “set forth specific facts showing that there is a
genuine issue for trial.” Anderson, 477 U.S. at 256.
III. Analysis
A. Constructive Termination
First up is Norris’s claim that she was constructively discharged from her
employment at SPI based on hostility to her military service. A constructive discharge
occurs when an employee is forced to resign because her working conditions, from the
standpoint of a reasonable employee, had become unbearable. Chapin v. Fort-Rohr
Motors, Inc., 621 F.3d 673, 679 (7th Cir. 2010). The Seventh Circuit recognizes two
forms of constructive discharge. Id. The first form occurs when an employee resigns
due to discriminatory harassment resulting in working conditions “even more
egregious than that required for a hostile work environment claim.” Id. The second
form occurs “[w]hen an employer acts in a manner so as to have communicated to a
reasonable employee that she will be terminated.” Id. (quoting EEOC v. Univ. of Chi.
Hosps., 276 F.3d 326, 332 (7th Cir. 2002)) (alteration in original). Under either theory,
the standard is very high: the plaintiff must show that the workplace had become
objectively “intolerable.” Chapin, 621 F.3d at 679.
A reasonable jury could not find for Norris on either theory of constructive
discharge. First, Norris’s evidence, even construed in the most generous light, is not
enough to establish that Norris was subjected to egregious harassment. It is true that
a reasonable jury could find that Norris was effectively demoted, that she was
transferred to a less-pleasant job situation, and that her supervisors overscheduled
9
her and did not support her educational aspirations. But those incidents are nowhere
near enough for a reasonable jury to conclude that Norris’s work environment was
egregiously hostile. The cases where the Seventh Circuit has found an “egregious”
work environment usually involve extreme harassment, explicit or implicit threats to
personal safety, or both. See, e.g., Taylor v. W. & S. Life Ins. Co., 966 F.2d 1188, 119899 (7th Cir. 1992) (jury could find constructive discharge where plaintiff’s boss made
constant racist comments and held a pistol to plaintiff’s head); Boumehdi v. Plastag
Holdings, LLC¸489 F.3d 781, 789-90 (jury could find constructive discharge where
plaintiff was sexually harassed and demeaned by her supervisor and her employer
failed to respond to repeated complaints). In contrast, the Seventh Circuit has held
that mere transfer or demotion is not enough to show an “egregious” work
environment; nor are worsened working conditions, loss of employment benefits, or
unfair reprimands. See, e.g., Patterson v. Ind. Newspapers, Inc., 589 F.3d 357, 366
(7th Cir. 2009) (“It is entirely implausible to suggest that a transfer from editorial
writing to copy editing was enough to make [the plaintiff’s] working conditions
‘unbearable.’”); Harriston v. Chi. Tribune Co., 992 F.2d 697, 705 (7th Cir. 1993) (jury
could not find constructive discharge when plaintiff was excluded from office
activities, unfairly reprimanded, assigned undesirable sales territory, denied new
accounts, barred from supervising two white employees, and refused assistance from
her boss); Fugate v. Dolgencorp, LLC, 555 F. App’x 600, 605-06 (7th Cir. 2014) (nonprecedential
disposition)
(manager’s
unfair
criticisms,
allegedly
unfounded
disciplinary actions, and boorish remarks were not enough to support constructive
10
discharge claim). Norris’s evidence falls well short of what would be needed to allow
a reasonable jury to find constructive discharge based on harassment.
Norris’s evidence is also not enough to establish that a reasonable employee
would have believed that termination was imminent. This second form of constructive
discharge occurs when “based on an employer[’]s actions, the handwriting was on the
wall and the axe was about to fall.” Fischer v. Avanade, Inc., 519 F.3d 393, 409 (7th
Cir. 2008) (cleaned up).6 “A person who is told repeatedly that [s]he is not wanted,
has no future, and can't count on ever getting another raise would not be acting
unreasonably if [s]he decided that to remain with [her] employer would necessarily
be inconsistent with even a minimal sense of self-respect, and therefore intolerable.”
Hunt v. City of Markham, Ill., 219 F.3d 649, 655 (7th Cir. 2000). But in Norris’s case,
a reasonable jury could not conclude that the “handwriting was on the wall.” It is true
that Norris received two reprimands in the month before she left her job, and Norris
believes that those reprimands were unfair. But the two reprimands—even coupled
with the other harassment that Norris supposedly faced—are not enough to show
that a firing was imminent. The written warning that Norris received days before her
resignation was only the second step of three in SPI’s progressive discipline policy; if
SPI was following its manual (and there is no evidence to the contrary), Norris was
not actually very close to termination. PSOF Exh. 22, SPI Corrective Action Policy.
Indeed, the Seventh Circuit has held that even more advanced disciplinary
6This
opinion uses (cleaned up) to indicate that internal quotation marks, alterations,
and citations have been omitted from quotations. See Jack Metzler, Cleaning Up Quotations,
18 Journal of Appellate Practice and Process 143 (2017).
11
proceedings are not enough to survive summary judgment on a constructive discharge
claim. See, e.g., Levenstein v. Salafsky, 414 F.3d 767, 774-75 (7th Cir. 2005) (professor
who was suspended for months pending a sexual assault investigation, removed as
department head, and given “demeaning” tasks before resigning was not
constructively discharged); Swearnigen-El v. Cook County Sheriff's Dept., 602 F.3d
852, 860 (7th. Cir. 2010) (employee’s suspension with pay pending Loudermill
hearing was not enough for a reasonable jury to find constructive discharge). And
even if Norris was somewhere on the road to termination, the mere possibility of
eventual termination is not enough to establish constructive discharge. Chapin, 621
F.3d at 679 (“[A] working condition does not become intolerable or unbearable merely
because a prospect of discharge lurks in the background.”) (quoting Cigan v.
Chippewa Falls Sch. Dist., 388 F.3d 331, 333 (7th Cir. 2004)) (cleaned up).
To sum up, the working conditions Norris describes are simply not enough for
a reasonable jury to conclude that Norris’s employment had become “intolerable”
under either theory of constructive discharge. Summary judgment is granted to SPI
and to the Individual Defendants on the constructive discharge claim.7
B. Intentional Infliction of Emotional Distress
Next is Norris’s state-law claim for intentional infliction of emotional distress.
To succeed on an emotional-distress claim, a plaintiff must establish (1) that the
defendant's conduct was extreme and outrageous; (2) that the defendant knew that
7There
is no need to break down which individual defendant was responsible for what;
even assuming that all the defendants acted in concert (and therefore can be held responsible
for each other’s actions), Norris’s evidence falls short of the mark.
12
there was a high probability that his conduct would cause severe emotional distress;
and (3) that the conduct in fact caused severe emotional distress. Bianchi v. McQueen,
58 N.E.3d 680, 699 (Ill. App. Ct. 2016). “[M]ere insults, indignities, threats,
annoyances, petty oppressions or trivialities” do not constitute extreme and
outrageous conduct. Id. at 700 (quoting Public Finance Corp. v. Davis, 360 N.E.2d
765, 767 (Ill. 1976)). To meet the high bar for “extreme and outrageous” conduct, the
defendant’s conduct must be “so extreme as to go beyond all possible bounds of
decency, and to be regarded as intolerable in a civilized community.” Kolegas v. Heftel
Broadcasting Corp., 607 N.E.2d 201, 211 (Ill. 1992).
In this case, a jury could not conclude that any defendant’s conduct was beyond
all possible bounds of decency. As discussed above, Norris’s evidence is enough to
prove that she was given a less-favorable job assignment, that she was overworked,
that she was unfairly disciplined, that her 401(k) was temporarily disrupted, and that
she was not allowed to change her work schedule to pursue her education. Based on
that evidence, a reasonable jury could conclude that the Defendants’ conduct was
frustrating, inept, and perhaps even harassing—but not that the Defendants’ conduct
was “intolerable in a civilized community.” Indeed, as SPI points out, Illinois courts
have been reluctant to allow emotional-distress claims based on employment disputes
in all but extreme cases: “if the anxiety and stress resulting from discipline, job
transfers, or even terminations could form the basis of an action for emotional
distress, virtually every employee would have a cause of action.” Welsh v.
Commonwealth Edison Co., 713 N.E.2d 679, 684 (Ill. App. Ct. 1999); see also, e.g.,
13
Miller v. Equitable Life Assur. Soc. of the U.S., 537 N.E.2d 887, 889 (Ill. App. Ct.
1989). The employment-related distress that Norris experienced after her return from
military leave—though undoubtedly unpleasant—simply does not even arguably rise
to the level of “extreme and outrageous” conduct. So, because no jury could reasonably
conclude that any defendant’s conduct was extreme and outrageous, summary
judgment is granted on this claim.8
C. Other USERRA Claims
Last are Norris’s remaining claims under USERRA. As a starting point, SPI
and the individual defendants argue that Norris does not actually have any other
USERRA claims, because her Amended Complaint appears to characterize all the
allegations as parts of the constructive discharge claim. R. 84, SPI Reply at 1 n.1; R.
87, Indiv. Defs.’ Reply at 2 (joining in SPI’s reply). That is not entirely correct.
Although Count One of the Amended Complaint foregrounds the constructive
discharge
theory,
the
Amended
Complaint
also
cites
USERRA’s
general
nondiscrimination and reemployment provisions. See Am. Compl. ¶ 59. The
allegations in the Amended Complaint can fairly be read to advance a USERRA claim
based on failure to reemploy or retaliation.
Still, those claims cannot survive summary judgment. USERRA does not
authorize damages for emotional distress. The remedies under USERRA are limited
to (A) a court order requiring the employer to comply with USERRA; (B)
8Again,
it is unnecessary to sort out the conspiracy allegations. As with the
constructive discharge claim, the emotional-distress claim would fail even assuming that the
individual defendants all conspired together.
14
compensation for “any loss of wages or benefits”; and (C) liquidated damages for
willful violations, equal to the amount of lost wages or benefits. 38 U.S.C. § 4323(d).
Norris is no longer employed at SPI, and her 401(k) and former position were restored
to her before she left SPI, so there is no live claim for injunctive relief ordering
USERRA compliance.
As for damages, there are no disputed issues of fact: Norris cannot prove “any
loss of wages or benefits.” As discussed, Norris’s 401(k) was fully restored before she
left SPI. Norris also agrees that there was no difference in salary between the FPC
and the PPFC. See Pl. Resp. SPI SOF ¶ 22. Norris claims that she lost earnings at
the FPC because she lost the opportunity to earn a productivity bonus based on the
number of patients she saw. But Defendants presented undisputed evidence from SPI
Executive Director Craig Miller that the productivity bonus program was eliminated
for all mid-level providers before Norris returned from military service. SPI SOF ¶
16; SPI SOF Exh. 17, Miller Aff. ¶ 3. Norris purports to dispute that testimony, but
her evidence boils down to (1) her own testimony that she felt that she was entitled
to a bonus and (2) the fact that she received a bonus in 2013 and 2015. Pl. Resp. SPI
SOF ¶ 16. PSOF Exh. 9. Norris’s testimony demonstrates that she has no real
personal knowledge of whether or not SPI’s bonus program was discontinued in 2014.
See PSOF Exh. 1, Norris Dep. at 123:25-125:10 (“Q: Can you say one way or another
whether there was a bonus program after early 2014 for SPI mid-level employees? A:
I was on military duty. I would not know.”) (sealed). The most Norris could say was
that she did not remember being told that the bonus program had been discontinued.
15
See id. at 124:7-125:4 (sealed). It would not be reasonable for a jury to credit Norris’s
assertions about her bonus entitlement over Miller’s sworn testimony based on his
first-hand knowledge about SPI’s bonus structure. Norris’s 2013 bonus is not relevant
to the question whether she was entitled to a productivity bonus in after she returned
from military leave in 2014. As for the bonus Norris received in 2015, there is no
evidence whatsoever to establish that that bonus was tied to productivity—and
therefore no basis to infer that Norris lost out on earning opportunities as a result of
her placement at the FPC.
Finally, although Norris appears to be asserting that her ability to attend class
without using paid time off was an employment “benefit,” see Pl. Resp. SPI SOF ¶ 22,
Norris does not point to evidence that her work at SPI prevented her from attending
class or caused her to lose her tuition deposit. In fact, Norris agrees that she opted to
leave work to attend her class and received a written warning as a consequence. Id.
¶¶ 39-40.
In short, with the constructive discharge claim out of the picture, Norris has
no evidence of lost wages or benefits, and so cannot recover anything based on her
remaining USERRA claims. Summary judgment is granted across the board on all
claims.9
9Norris
might argue that the Defendants have waived summary judgment on any
other USERRA claims. But, as Norris acknowledges, the Defendants moved for summary
judgment on all of Norris’s claims. R. 61, SPI Mot. Summ. J. at 1 (moving for summary
judgment “on Plaintiff’s claims in their entirety”; R. 63, Indiv. Defs.’ Br. at 1 (same); R. 75,
Pl. Resp. SPI Mot. at 1-2. What’s more, most of the arguments that the Defendants would
have made on the other USERRA claims are subsumed within their arguments regarding
constructive discharge, so Norris has had a fair opportunity to present her evidence. In
16
IV. Conclusion
For the reasons stated above, summary judgment is granted to each Defendant
on all claims. As important as the protections of USERRA undoubtedly are, the
evidence is insufficient to get to trial in this particular case. The status hearing of
September 20, 2018 is vacated. Final judgment will be entered.
ENTERED:
s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: September 4, 2018
particular, the issues about compensation and benefits (which ended up disposing of the other
USERRA claims) were argued as part of the constructive discharge claim.
17
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