Eshcoff v. BAE Systems Controls Inc etal
OPINION AND ORDER: Court GRANTS 26 Motion for Summary Judgment. The Clerk is DIRECTED to enter judgment accordingly. Signed by Judge Robert L Miller, Jr on 5/15/2017. (tc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
BAE SYSTEMS CONTROLS, INC,
CAUSE NO. 1:16-CV-12 RLM
OPINION AND ORDER
Renee Eshcoff was terminated from her position as a Safety, Health, and
Environment Specialist with BAE Systems Controls, Inc. in 2015. She brought
suit against BAE Systems in state court alleging that she was terminated in
violation of Indiana Code § 22-5-3-3 (Count I) and Indiana Occupational Safety
and Health Administration regulations (Count II); the complaint was removed to
this court based on diversity jurisdiction.1 BAE Systems moved for summary
judgment and the court heard arguments on defendant’s motion on March 15,
2017. For the following reasons, the court grants BAE Systems’ motion.
I. STANDARD OF REVIEW
Summary judgment is appropriate when the record demonstrate that there
are no genuine issues of material fact and that the movant is entitled to judgment
1 Ms. Eshcoff’s complaint also contained a claim against David Bernardini for tortious
interference with at-will employment. The court dismissed the tortious interference
claim in February 2016 [Doc. No. 14].
as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986); Protective Life Ins. Co. v. Hansen, 632 F.3d 388, 391-92 (7th Cir.
2011). The court construes the evidence and all inferences that reasonably can
be drawn from the evidence in the light most favorable to the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The moving party
bears the burden of informing the court of the basis for its motion and identifying
the parts of the record that demonstrate the absence of any genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. at 323. It can meet that burden
by showing that there’s no evidence to support the non-moving party’s case. Id.
at 325. Once the moving party has met its burden, the opposing party can’t rest
upon the allegations in the pleadings, but must “point to evidence that can be
put in admissible form at trial, and that, if believed by the fact-finder, could
support judgment in his favor.” Marr v. Bank of America, N,A., 662 F.3d 963,
966 (7th Cir. 2011); see also Hastings Mut. Ins. Co. v. LaFollette, No. 1:07-cv1085, 2009 WL 348769, at *2 (S.D. Ind. Feb. 6, 2009) (“[i]t is not the duty of the
court to scour the record in search of evidence to defeat a motion for summary
judgment; rather, the nonmoving party bears the responsibility of identifying the
evidence upon which he relies”); Hammel v. Eau Galle Cheese Factory, 407 F.3d
852, 859 (7th Cir. 2005) (summary judgment is “not a dress rehearsal or practice
run; it is the put up or shut up moment in a lawsuit, when a party must show
what evidence it has that would convince a trier of fact to accept its version of
Renee Eshcoff was a BAE Systems Safety, Health, and Environment
Specialist at its Fort Wayne Facility. While employed by BAE Systems, Ms.
Eshcoff complained in writing about health and safety issues in the Fort Wayne
facility. Ms. Eshcoff alerted company representatives that soon after she arrived
at BAE Systems, a co-worker asked her to submit inaccurate workplace injury
rates to the Indiana Occupational Safety and Health Administration. Following
an incident in which the fire alarms were triggered at the facility, Ms. Eshcoff
complained that the company didn’t have an adequate emergency response plan.
She also reported concerns with the electrical system, ergonomic problems, and
that employees were exposed to high levels of solder exhaust.
Due to Ms. Eshcoff’s complaints, BAE Systems’ Director of Ethics and
Business Conduct, the company’s Director of Environment, Health and Safety,
and others conducted an internal safety, health, and environment investigation
and audit of the Fort Wayne facility in August 2014. The investigators found
“[s]ubstantive [safety, health, and environment] issues occurring in [Fort] Wayne
that have been known and unresolved for—in some cases—years”. The
investigators’ report noted that the safety, health, and environmental issues
uncovered by the investigators validated Ms. Eshcoff’s complaints, including her
written reports that BAE Systems’ emergency response procedure was
The report also described management deficiencies that contributed to
safety, health, and environmental issues going unresolved. The report named
Ms. Eshcoff’s direct and indirect supervisors, David Bernardini and Robert
Aldrete, and described how they contributed to the issues found in the
investigation. The report didn’t confirm Ms. Eshcoff’s claims regarding
inaccurate data requested for an IOSHA report.
A month after the investigators’ findings were released, Mr. Bernardini and
a human resources representative met with Ms. Eshcoff to “talk about how to
get better as a team.” Mr. Bernardini reviewed a series of expectations for Ms.
Eshcoff moving forward, including concerns about her allegedly missing work
Mr. Aldrete had previously rebuked Ms. Eshcoff for disrespectful behavior
toward him after an incident in a meeting. Ms. Eshcoff had emailed him an
apology “for talking back to [him],” which she described as “inexcusable,” but
later accused Mr. Aldrete of trying to humiliate and harass her so that she would
just “shut up.” In February 2015, Ms. Eshcoff abruptly ended a meeting with Mr.
Bernardini and others about a new area of responsibility for Ms. Eshcoff. She
was placed on administrative leave after this incident. Earlier that month, the
company launched an investigation of Ms. Eshcoff’s time-card records to
determine whether she was properly reporting her hours.
Ms. Eshcoff’s employment was terminated at the end of February; the
company cited insubordination and inaccurate timekeeping as the basis for the
disciplinary action. Ms. Eshcoff had never previously been formally disciplined
for these issues and Mr. Bernardini, her direct supervisor, had rated her as a
good performer during her annual performance reviews. Ms. Eshcoff brought suit
against her former employer, alleging her termination violated Indiana’s
Administration regulations. BAE Systems moved for summary judgment on both
A. Whistleblower Retaliation Claim
BAE Systems argues that Ms. Eshcoff can’t prevail on her whistleblower
retaliation claim under Ind. Code § 22-5-3-3 because no private cause of action
is available to her under the statute. The Indiana Supreme Court hasn’t
addressed the issue, see, e.g., Ellis v. CCA of Tennessee LLC, 650 F.3d 640, 650–
51 (7th Cir. 2011), but our court of appeals has presumed that the statute
provides a cause of action for certain forms of retaliation, including termination.
Id. at 650–51. Sister district courts within the circuit also have presumed that
the statute allows an employee to challenge a disciplinary action in a court. See
Boyd v. Keystone Const., No. 1:14-CV-119-WTL-MJD, 2015 WL 4427630, at *4–
5 (S.D. Ind. July 20, 2015); Cole v. Major Hosp., No. 1:14-CV-00549-SEB, 2014
WL 6977296, at *5 (S.D. Ind. Dec. 5, 2014); Neumeister v. City of Greenfield, No.
1:10-CV-659-SEB-MJD, 2012 WL 1067905, at *13 (S.D. Ind. Mar. 29, 2012);
Ryan v. Underwriters Labs., Inc., No. 1:06-CV-01770JDTTAB, 2007 WL
2316474, at *6 (S.D. Ind. Aug. 8, 2007). See also Shoemaker v. Indiana State
Police Dep't, 62 N.E.3d 1242, 1248 n. 5 (Ind. Ct. App. 2016).
BAE Systems, which seeks a new state law ruling, hasn’t cited any
authority to the contrary or given the court any reason to believe that the Indiana
Supreme Court would disagree with the state and federal courts that have
addressed the question. Given the need to tread lightly in an area of state law
without clear statutory interpretation from the Indiana Supreme Court, the court
will assume without deciding that the statute provides a private cause of action
for Ms. Eshcoff’s claim.
BAE Systems makes two other arguments as to why a private cause of
action under the statute isn’t available to Ms. Eshcoff. First, the company argues
that if the statute provides a cause of action, it is limited to subsection (c) of the
Act, which covers employees who are appealing a disciplinary action for
knowingly providing false information in a written report. This statutory
interpretation may be on firmer ground, but given the lack of guidance from the
Indiana Supreme Court, this court declines to depart from other courts’
interpretation of the scope of the statute’s private cause of action. See, e.g., Ryan
v. Underwriters Labs., Inc., No. 1:06-CV-01770JDTTAB, 2007 WL 2316474, at
*6 (S.D. Ind. Aug. 8, 2007) (accepting that the statute’s private cause of action
reaches an employee retaliated against for complaining in writing of a violation
BAE Systems next contends that if the statute provided a cause of action,
it wouldn’t be available to Ms. Eshcoff because she had another remedy
available, which she pursued in Count II: retaliatory discharge in violation of
IOSHA regulations. Indiana courts have occasionally required that a party
elect a remedy at trial to prevent double recovery or “to avoid prejudice to the
defendants in having to defend against inconsistent theories of recovery,” but
that isn’t an issue at the summary judgment stage. Cahoon v. Cummings, 734
N.E.2d 535, 542 (Ind. 2000). More pertinently and as addressed later, double
recovery isn’t a concern because Ms. Eshcoff abandoned her claim when she
didn’t defend the retaliatory discharge claim in Count II. See Palmer v. Marion
Cnty., 327 F.3d 588, 597 (7th Cir.2003).
B. Prima Facie Case
The parties agree that to prevail under Ind. Code § 22-5-3-3, Ms. Eshcoff
must show that:
1. she was an employee of a private employer;
2. her employer was under public contract;
3. she made a report in writing alleging:
a. a violation of a federal law or regulation;
b. a violation of a state law or rule;
c. a violation of an ordinance of a political subdivision;
d. the misuse of public resources; and
4. the violation alleged concerned the execution of a public contract.
See Ind. Code § 22-5-3-3.
BAE Systems argues that Ms. Eshcoff can’t established a prima facie case
because her written complaints didn’t concern the execution of a government
contract or identify a violation of law. The statute requires that a written
complaint must concern “the execution of public contract.” Ind. Code § 22-5-33(a); Logan v. Indiana Dep't of Corr., No. 104CV0797SEBJPG, 2005 WL
3003077, at *5 (S.D. Ind. Nov. 8, 2005). Ms. Eshcoff complained in writing that
the Fort Wayne facility’s emergency response plan was inadequate. She testified
at her deposition that when she began her tenure with BAE Systems, twenty-five
percent of the facility’s production was related to government defense work. She
further testified that while the facility was almost completely commercial at the
time of her termination, the facility maintained a repair department that serviced
BAE Systems acknowledged that the company enters into public contracts
and didn’t present evidence contradicting Ms. Eshcoff’s testimony. Viewing the
evidence in the light most favorable to Ms. Eshcoff and drawing all permissible
inferences in her favor, a reasonable jury might find that Ms. Eshcoff’s
complaints about the Fort Wayne facility’s lack of an adequate emergency
response plan concerned the execution a government contract if, as she claims,
twenty-five percent of the facility’s work related to a defense contract.
Next, BAE Systems contends that Ms. Eshcoff hasn’t established a prima
facie case because her written complaints didn’t identify a violation of law. The
statute only provides protection to an employee who reported a violation of law,
regulations, rules, or an ordinance in writing. See Ind. Code § 22-5-3-3(a)
(requiring that the plaintiff “report in writing the existence of: (1) a violation of a
federal law or regulation; (2) a violation of a state law or rule; [or] (3) a violation
of an ordinance of a political subdivision); Ellis v. CCA of Tennessee LLC, 650
F.3d 640, 651 (7th Cir. 2011). Complaints about violations of internal company
safety procedures or industry best practices are insufficient to trigger the
statute’s protections. Ellis v. CCA of Tennessee LLC, 650 F.3d 640, 651 (7th Cir.
The record includes complaints in writing from Ms. Eshcoff that the
company’s emergency response plan was deficient and she was instructed to
provide inaccurate data for an IOSHA report. Her complaints didn’t allege
violations of law on their face, but her reports caused enough concern that BAE
Systems’ corporate office started an internal audit of the company’s Fort Wayne
facility, including an onsite investigation. The investigation found that there were
“[s]ubstantive [safety, health, and environment] issues occurring in [Fort] Wayne
that have been known and unresolved for—in some cases—years.” The report
validated many of Ms. Eshcoff’s complaints, including her written report that
BAE Systems’ emergency response procedure was deficient; the company found
it “noncompliant.” BAE Systems’ conclusion that the facility’s emergency
response procedure was “noncompliant” isn’t dispositive because it doesn’t
demonstrate a violation of law; the report could be referring to compliance with
internal protocols, industry best practices, or something else that is insufficient
to trigger the protections of Ind. Code § 22-5-3-3.
In her brief and at the hearing, Ms. Eshcoff claimed that the conduct she
complained of violated OSHA and EPA regulations, Indiana fire codes, and
Indiana building codes. But she “[has] not told [the court] what state or federal
laws were violated by the conduct [she] observed,” Ellis v. CCA of Tennessee LLC,
650 F.3d 640, 651 (7th Cir. 2011); she didn’t direct the court to any section of
code, regulation, rule, or ordinance she claimed was violated. “A whistleblower
has to complain about such a violation . . . before the Act's protections are
triggered.” Id. Therefore, BAE Systems is entitled to summary judgment on
C. IOSHA Retaliation Claim
BAE Systems argued in its brief in support of its motion that Ms. Eshcoff’s
claim of retaliatory termination for her reports of IOSHA violations fails because
she didn’t exhaust her administrative remedies, the statute doesn’t provide a
cause of action, and her complaints were within the scope of her duties as a
Safety, Health, and Environment Specialist. See Ind. Code § 22–8–1.1–38.1.
Ms. Eshcoff didn’t address any of BAE Systems’ arguments or in any way
support her IOSHA retaliation claim in her response brief or at the hearing. On
summary judgment, an undefended claim is deemed abandoned. See Palmer v.
Marion Cnty., 327 F.3d 588, 597 (7th Cir.2003). BAE Systems is entitled to
summary judgment on Count II.
For the foregoing reasons, the defendant’s motion for summary judgment
[Doc. No. 26] is GRANTED. The Clerk is directed to enter judgment accordingly.
May 15, 2017
/s/ Robert L. Miller, Jr.
United States District Court
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