Walton v. United States Steel Corporation et al
Filing
64
OPINION AND ORDER: Court GRANTS 54 Motion for Summary Judgment. Signed by Magistrate Judge Andrew P Rodovich on 12/21/2012. cc: Pro se Pltf (tc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ERIC RASHAD WALTON,
Plaintiff
v.
UNITED STATES STEEL
CORPORATION,
Defendant
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) Case No. 2:10-cv-188
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OPINION AND ORDER
This matter is before the court on the Motion for Summary
Judgment [DE 54] filed by the defendant, United States Steel
Corporation, on April 30, 2012.
For the reasons set forth below,
the motion is GRANTED.
Background
The plaintiff, Eric Rashad Walton, began working for U.S.
Steel at its manufacturing facility in Gary, Indiana, on February
2, 2006.
Walton was a member of the United Steel, Paper and
Forestry, Rubber, Manufacturing, Energy, Allied Industrial
Services Workers International Union.
The union negotiated a
Basic Labor Agreement with U.S. Steel that governed the terms and
conditions of its members’ employment.
The BLA set forth the
discrimination policies and procedures for reporting incidents,
as well as the grievance, discipline, and discharge process.
The
BLA stated that "[n]o employee will be disciplined or discriminated against in any way solely for suffering an injury or
illness or for reporting an accident in good faith."
U.S. Steel
promulgated procedures for employees to report misconduct to the
Employee Relations Department, or if the employee was uncomfortable with reporting the violation to the company, he could file a
grievance with his union.
On December 12, 2007, Walton experienced an allergic reaction to one of the chemicals at work and went to the hospital.
Walton did not return to work the next day and filed a claim with
U.S. Steel for Sickness and Accident benefits, a monetary benefit
that U.S. Steel provides to bargaining unit employees if they
cannot perform the duties of their job as a result of sickness or
accident.
U.S. Steel paid Walton approximately $900 in sickness
and accident benefits every two weeks while he was on sick leave
from work.
Walton was examined by Nurse Practitioner Renee Lax on
February 4, 2008, for a return to work physical.
Walton had a
form signed by his treating physician stating he could return to
work the following day. Walton reported to Lax that he had a skin
patch test for allergies, which revealed that he was allergic to
nickel.
Walton denied working around nickel, and his supervisor,
Bruce West, informed Lax that there was no known exposure to
nickel at work and that he could accommodate Walton’s allergy.
Walton returned to work the following day and worked through
2
February 21, 2008.
On February 21, 2008, Walton experienced
another allergic reaction at work and took sick leave.
He
received sickness and accident benefits during his leave.
On June 16, 2008, Walton filed a workers’ compensation claim
for his allergic reactions on December 12, 2007 and February 21,
2008.
Walton does not know who at U.S. Steel had knowledge of
his workers’ compensation claim, but he testified that U.S.
Steel’s claims unit in Pittsburgh, Pennsylvania, became aware of
the claim through a letter from his doctor.
At some point after
his doctor sent the letter to the claims unit, Walton met with
Linda Woods, Manager of Employee Services at Gary Works, to get
information about filing a workers’ compensation claim.
On July
29, 2008, Dr. Mark Gardner examined Walton and determined that he
could return to work if he was not exposed to dichlorophene,
nickel, or propylene glycol, and was provided a gas rescue
accommodation.
Dr. Gardner called the manager of the tin mill
and was informed that the manager could not offer Walton such an
accommodation.
sation.
Walton remained off work and on workers’ compen-
U.S. Steel did not challenge Walton’s workers’ compensa-
tion claim but subsequently terminated his benefits when it
determined that Walton could return to work.
U.S. Steel management determined that they were able to
accommodate Walton’s medical restrictions in the coke products
3
division.
Walton went to the U.S. Steel Medical Department for a
return to work physical on November 10, 2008.
Dr. Gardner
directed Walton to be fit-tested for a respirator that he would
need to work in the coke division.
Walton testified that Dr.
Gardner agreed to test him at a later date so he could speak with
his workers’ compensation lawyer about returning to work in the
coke division.
Walton left the Medical Department without being
fit-tested for a respirator and did not return or contact a
manager to be fit-tested.
On December 9, 2008, Staff Supervisor Maria Flourney sent a
letter to Walton advising him to report to the plant medical
department before December 19, 2008, and that the failure to
report without justification would result in a five-day suspension preliminary to discharge.
Walton complained that he did not
receive the letter until December 20, 2008, but he admitted that
he became aware of the letter through a conversation with Human
Resource Representative Sandra Armstrong on December 15, 2008.
Armstrong read the contents of the letter to him over the phone
and told him to report to the plant medical department.
Walton
did not report to the medical department by the December 19,
2008, and explained that the union advised him that the matter
could be handled after the holidays.
4
On December 29, 2008, Labor Relations Manager Laura Kocel
issued Walton a five-day suspension for failing to comply with
the instructions in the letter. Walton went to the U.S. Steel
medical department to be fit-tested for a respirator on December
30, 2008, and received the discipline notice on January 2, 2009.
Walton met with his union representative and U.S. Steel’s managers to address the discipline.
Following the meeting, U.S. Steel
converted Walton’s initial five-day suspension to a discharge on
February 26, 2009.
The union filed a grievance on Walton’s behalf challenging
the discipline and asserting that U.S. Steel violated the BLA.
A
second meeting was held between Walton, his union representatives, and U.S. Steel management to address the discipline under
the BLA’s grievance procedure.
U.S. Steel denied Walton’s
grievance, which subsequently was appealed.
At a "Third Step"
meeting, Labor Relations Manager Timothy Mosby made an offer to
the union to resolve Walton’s grievance and discharge, which was
conditioned on Walton moving to the coke department.
Walton was
not present at the meeting, and Mosby only communicated with
Walton’s union representatives about this offer.
Mosby was the
only U.S. Steel manager with authority to resolve Walton’s
grievance and discharge.
Mosby and the union representatives
held another meeting during which they discussed the possibility
5
of assigning Walton as a Utility Technician performing functions
as a Truck Driver.
Mosby never discussed this option with
Walton, and his grievance eventually was denied on the third
level of review.
Mosby stated that he never rescinded an offer
to resolve Walton’s grievance and discharge, rather, the parties
were unable to reach an agreement.
An arbitration was scheduled
for April 1, 2011, and the Board of Arbitration found that U.S.
Steel had proper cause to suspend and discharge Walton.
On April 20, 2009, Walton filed a charge with the Equal
Employment Opportunity Commission (EEOC), alleging disability
discrimination.
Walton was issued a Notice of Rights letter and
filed his pro se complaint.
In his complaint, Walton alleges
that he was discharged in retaliation for filing a grievances
with the union, a charge of discrimination with the EEOC, his
complaint in this matter, and a workers’ compensation claim.
U.S. Steel contends that Walton signed a Competition, Agreement,
Stipulation, and Petition in the workers’ compensation claim and
that he is prohibited from pursuing this claim.
Walton also
alleges that he was terminated in retaliation for a letter he
sent to the Indiana Occupational Safety & Health Association
(IOSHA) on December 16, 2008, complaining about his recent
experiences at U.S. Steel.
Walton does not know whether U.S.
Steel was aware of the letter he sent to IOSHA, and IOSHA has no
6
record of receiving the letter.
Walton’s final complaint is that
he suffered intentional infliction of emotional distress as a
result of his termination, the termination of his workers’
compensation benefits, and U.S. Steel causing his second allergic
reaction.
U.S. Steel now moves for summary judgment on all of
Walton’s claims.
Discussion
Pursuant to Federal Rule of Civil Procedure 56(c), summary
judgment is proper only if it is demonstrated that "there is no
genuine issue as to any material fact and the moving party is
entitled to a judgment as a matter of law."
Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986); Kidwell v. Eisenhauer, 679 F.3d 957, 964 (7th Cir. 2012);
Stephens v. Erickson, 569 F.3d 779, 786 (7th Cir. 2009).
The
burden is upon the moving party to establish that no material
facts are in genuine dispute, and any doubt as to the existence
of a genuine issue must be resolved against the moving party.
Adickes v. S.H. Kress & Company, 398 U.S. 144, 160, 90 S.Ct.
1598, 1610, 26 L.Ed.2d 142, 155 (1970); Stephens, 569 F.3d at
786.
A fact is material if it is outcome determinative under
applicable law.
There must be evidence on which the jury could
reasonably find for the nonmoving party.
Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d
7
202, 212 (1986); Stephens, 569 F.3d at 786; Wheeler v. Lawson,
539 F.3d 629, 634 (7th Cir. 2008).
However, summary judgment may
be entered against the non-moving party if it is unable to
"establish the existence of an essential element to [the party’s
case, and on which [that party] will bear the burden of proof at
trial . . . ."
Kidwell, 679 F.3d at 964 (citing Benuzzi v. Bd.
of Educ., 647 F.3d 652, 662 (7th Cir. 2011) (quoting Celotex
Corp., 477 U.S. at 322, 106 S.Ct. at 2548).
Summary judgment is inappropriate for determination of
claims in which issues of intent, good faith, and other subjective feelings play dominant roles.
781, 784 (7th Cir. 2006).
Ashman v. Barrows, 438 F.3d
Upon review, the court does not evalu-
ate the weight of the evidence, judge the credibility of witnesses, or determine the ultimate truth of the matter; rather,
the court will determine whether there exists a genuine issue of
triable fact.
Wheeler, 539 F.3d at 634 (citing Anderson, 477
U.S. at 248, 106 S.Ct. at 2510).
In deciding a motion for summary judgment, the trial court
must determine whether the evidence presented by the party
opposed to the summary judgment is such that a reasonable jury
might find in favor of that party after a trial.
The inquiry performed is the threshold inquiry of determining whether there is the
need for a trial--whether, in other words,
there are any genuine factual issues that
8
properly can be resolved only by a finder of
fact because they may reasonably be resolved
in favor of either party.
[T]his standard mirrors the standard for a
directed verdict under Federal Rule of Civil
Procedure 50(a), which is that the trial
judge must direct a verdict if, under the
governing law, there can be but one reasonable conclusion as to the verdict.
Anderson, 477 U.S. at 250, 106 S.Ct. at 2511
See also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
149-151, 120 S.Ct. 2097, 2109, 147 L.Ed.2d 105, 120-122 (2000)
(setting out the standard for a directed verdict); Celotex Corp.,
477 U.S. at 322-23, 106 S.Ct. at 2553; Stephens, 569 F.3d at 786;
Argyropoulos v. City of Alton, 539 F.3d 724, 732 (7th Cir. 2008)
(stating that a genuine issue is one on which a reasonable fact
finder could find for the nonmoving party); Springer v. Durfling-
er, 518 F.3d 479, 483 (7th Cir. 2008)(stating that a genuine
issue exists and summary judgment is inappropriate if there is
sufficient evidence for a jury to return a verdict for the
nonmoving party).
Walton alleges that he was retaliated against for filing a
charge of discrimination based on a disability with the EEOC, a
grievance with his union, his complaint in this matter, a
workers’ compensation claim, and a complaint with IOSHA.
U.S.
Steel first contends that Walton cannot sustain a claim for
9
retaliation under the Americans with Disabilities Act because
Walton failed to exhaust his administrative remedies.
The Americans with Disabilities Act ("ADA") prohibits
retaliation by the employer in response to an employee filing a
charge with the EEOC.
42 U.S.C. §12203(a); Turner v. The Saloon,
Ltd., 595 F.3d 679, 690 (7th Cir. 2010). Unlawful retaliation
occurs when an employer takes actions that discriminate against
an employee because he has opposed a practice forbidden by the
ADA. 42 U.S.C. §12203(a); Turner, 595 F.3d at 690.
An employer
effectively retaliates against an employee "by taking actions not
directly related to [ ] employment or by causing [ ] harm outside
the workplace."
Burlington Northern and Santa Fe Ry. Co. v.
White, 548 U.S. 53, 63, 126 S.Ct. 2405, 2412, 165 L.Ed.2d 345
(2006). See also Thompson v. North American Stainless, LP, ___
U.S. ___, 131 S.Ct. 863, 868, 178 L.Ed.2d 694 (2011).
To state a
claim for retaliation, "the plaintiff must allege the following:
(1) he or she engaged in a statutorily protected activity; (2) he
or she suffered an adverse action; and (3) a causal link between
the protected activity and the adverse action." Ryan v. Pace
Suburban Bus Div. of Regional Transp. Authority, 837 F.Supp.2d
834, 839 (N.D. Ill. 2011) (citing Turner, 595 F.3d at 690). See
also Hicks v. Forest Preserve District of Cook County, Illinois,
677 F.3d 781, 787 (7th Cir. 2012).
10
Before an employee may file a complaint alleging violations
of the ADA, he must exhaust his administrative remedies. Elliott
v. Dedelow, 115 Fed.Appx. 881, 883 (7th Cir. 2004). The plaintiff
first must file a charge of discrimination with the Equal Employment Opportunities Commission. See Elliott, 115 Fed.Appx. at 883;
42 U.S.C. §2000e–5.
The EEOC either will choose to pursue the
claim on the plaintiff's behalf or will issue a Dismissal and
Notice of the Right to Sue.
42 U.S.C. §2000e–5.
Generally, a
plaintiff may not include claims in his lawsuit that were not
included in his EEOC charge.
Cheek v. Western and Southern Life
Insurance Co., 31 F.3d 497, 500 (7th Cir. 1994).
The Seventh
Circuit has carved out several exceptions to this general rule.
See Cheek, 31 F.3d at 500.
Claims raised for the first time in
the complaint that are like or reasonably related to the allegations in the EEOC charge and grow out of the allegations may be
heard by the court.
Geldon v. South Milwaukee School District,
414 F.3d 817, 819 (7th Cir. 2005).
The Seventh Circuit also has
allowed retaliation claims that arose from the original EEOC
charge to proceed although they were not brought before the EEOC.
Horton v. Jackson County Bd. Of County Commissioners, 343 F.3d
897, 898 (7th Cir. 2003).
However, the retaliation must have
occurred after the EEOC charge was filed.
If the alleged retal-
iatory act arose before the EEOC charge was commenced, it must be
11
included in the charge.
McKenzie v. Illinois Dept. of Transpor-
tation, 92 F.3d 473, 483 (7th Cir. 1996).
Walton’s claim for retaliation under the ADA fails on
several accounts.
remedies.
First, he did not exhaust his administrative
It is not clear what statutorily protected act Walton
alleges caused him to suffer an adverse action.
However, the
only adverse act contained in his complaint was his discharge,
which was finalized on April 1, 2009, when the Board of Arbitration issued its final decision confirming that U.S. Steel had
proper cause for the suspension and discharge.
Walton did not
file his charge of discrimination with the EEOC until 19 days
later, on April 20, 2009.
Because the retaliatory act, his
discharge, occurred before he filed his complaint with the EEOC,
Walton was required to include any complaint of retaliation in
his EEOC charge.
Furthermore, the chronology of events defeats
Walton’s claim for retaliation because he cannot show a causal
link between his EEOC charge and termination.
Walton was termi-
nated before he filed a charge of discrimination with the EEOC,
rendering it impossible to show that he was terminated because he
filed the charge.
See Sweat v. Peabody Coal Co., 94 F.3d 301,
305 (7th Cir. 1996).
For this reason, Walton cannot show a
causal link between his statutorily protected activity of filing
an EEOC charge and his termination.
12
Walton faces a similar challenge with his claim that he was
retaliated against for filing a grievance with his union and his
complaint with this court.
Walton filed his grievance after his
five-day suspension was converted to a discharge and filed the
complaint after his grievance was affirmed by the arbitration
board.
With both complaints, the retaliatory act, his discharge,
occurred before Walton engaged in a statutorily protected activity.
Because the causal connection can be established only if
the protected activity preceded the retaliatory conduct, Walton
has not shown a causal connection between his termination and
statutorily protected activities, and summary judgment must be
entered in favor of U.S. Steel.
More importantly, Walton’s complaint that he was retaliated
against for filing a grievance with his union fails because this
court lacks jurisdiction to hear his claim.
Claims for retalia-
tion for filing a grievance fall under the National Labor Relations Act.
Carr v. Metals, 2009 WL 483167, *12 (N.D. Ind. Feb.
24, 2009).
The NLRA states that it is an unfair labor practice
for an employer "to discharge or otherwise discriminate against
an employee because he has filed charges or given testimony under
this chapter."
29 U.S.C. §158(a)(4).
The NLRA provides a
comprehensive system to remedy conduct that is protected or
prohibited by the Act and deprives federal and state courts of
13
jurisdiction.
A plaintiff who desires to proceed on a claim that
falls under the NLRA must show that he has first complied with
the steps set forth by the NLRA and filed his charge with the
National Labor Relations Board for resolution.
Carr, 2009 WL
483167 at *12.
Walton has not provided any evidence that he filed this
claim for retaliation for filing a grievance with the NLRB.
Be-
cause at this point in the litigation Walton must provide evidence to show that his claims have merit, his failure to show
that he complied with the procedural prerequisites and filed a
complaint with the NLRB is fatal to his claim.
483167 at *12.
Carr, 2009 WL
Absent such proof, this court lacks jurisdiction
and summary judgment must be awarded to U.S. Steel on this issue.
With respect to his claim for retaliation for filing a
complaint, Walton alternatively has argued that he was retaliated
against because he was denied reinstatement when he filed his
complaint with this court.
At his deposition, Walton complained
that U.S. Steel made an offer to rescind his termination, but
upon learning that he filed a federal lawsuit, U.S. Steel revoked
the offer and stated that it would not negotiate a job with
someone who had a pending lawsuit.
Walton has not identified who
made this statement, nor has he alleged that it was made by
someone with authority to resolve his grievance.
14
Remarks and
statements by nondecision-makers are insufficient to establish a
prima facie case.
Simmons v. Chicago Board of Education, 289
F.3d 488, 492 (7th Cir. 2002).
The undisputed evidence shows
that Mosby, the Labor Relations Manager, was the only individual
who had authority to resolve Walton’s grievance and that he never
spoke to Walton about a compromise.
Walton has made no attempt
to establish that Mosby was the individual who made this statement or that the speaker had authority to resolve his termination.
Therefore, the only evidence of record shows that the sole
individual with authority to resolve Walton’s claim did not make
the remark to Walton, leaving the court to conclude that, if the
statement was made, it was made by a nondecision-maker and cannot
support a prima facie case.
See Harney v. City of Chicago, 2012
WL 6097336, *4 (7th Cir. Dec. 10, 2012) (explaining that evidence
that is non-admissible in content cannot be considered on summary
judgment).
Furthermore, even if the court was willing to assume that
Mosby made the statement, "[a]n employer’s failure to grant an
employee a discretionary benefit to which the employee is not
automatically entitled is not an adverse employment action."
Sicher v. Merrill Lynch, 2011 WL 892746, *3 (N.D. Ill. 2011).
The decision to make or to rescind settlement offers is within
the discretion of the employer.
Sicher, 2011 WL 892746 at *4.
15
Therefore, if U.S. Steel decided to rescind the offer to revoke
Walton’s discharge, its decision was not an adverse employment
action.
Walton also alleges that he was retaliated against for
filing a whistleblower complaint with IOSHA.
Indiana does not
recognize a tort of retaliatory discharge for notifying IOSHA of
a potential violation.
Groce v. Eli Lilly & Co., 193 F.3d 496,
503-04 (7th Cir. 1999).
The IOSHA statute encompasses its own
remedies and does not provide for an independent cause of action.
To pursue a claim for a retaliatory discharge for filing an IOSHA
complaint, Walton would need to proceed according to the IOSHA
statute.
Moreover, even if IOSHA recognized an independent
tort, Walton has submitted no evidence to show that he in fact
sent the letter to IOSHA or that U.S. Steel was aware of his
letter.
Rather, the record unequivocally shows that IOSHA did
not receive Walton’s letter and that U.S. Steel had no knowledge
of it.
Absent any evidence, Walton cannot establish that he was
terminated because of his complaint with IOSHA.
Walton next alleges that he was terminated in retaliation
for filing a workers’ compensation claim.
Walton filed his
workers’ compensation claim before he was terminated, so he does
not face the same challenge to establish causation as he did for
16
his claim of retaliation for filing a charge with the EEOC, a
grievance with his union, and his complaint.
In Indiana, employment is generally at-will. However,
Indiana recognizes a cause of action for employees terminated in
retaliation for filing a worker's compensation claim.
Hudson v.
Wal-Mart Stores, Inc., 412 F.3d 781, 785 (7th Cir. 2005). To
establish a claim for retaliatory discharge, the employee must
establish a causal connection between his termination and filing
the workers' compensation claim by direct or indirect evidence.
The termination must be the sole reason for the employee's discharge. Hudson, 412 F.3d at 785.
If the employee does not have
direct evidence, he may point to the proximity of the discharge
to his claim for workers’ compensation benefits or show that the
cited explanations for his discharge were a pretext.
However,
timing alone is not sufficient to establish a causal connection.
The plaintiff must point to some evidence that would make the
suspicious timing evidence stronger. Hudson, 412 F.3d at 787.
A
plaintiff can establish pretext by showing that his employer’s
explanation for the firing "was either dishonest or 'patently
inconsistent with the evidence before the court.'"
Hudson, 412
F.3d at 785 (citing Markley Enters., Inc. v. Grover, 716 N.E.2d
559, 565 (Ind. App. 1999)). Causation generally is an issue left
for the trier of fact, but when no reasonable trier of fact could
17
conclude discharge was caused by prohibited retaliation, summary
judgment may be entered against the plaintiff.
Watkins v. Sommer
Metalcraft Corp., 844 F.Supp. 1321, 1326 (S.D. Ind. 1994).
Walton has failed to establish a causal connection between
his workers’ compensation claim and his discharge.
As it stands,
the only evidence supporting such an inference is that his termination occurred after he filed his workers’ compensation claim.
This is not enough to establish a causal connection and survive
summary judgment.
Hudson, 412 F.3d at 786.
Walton has submitted
no other evidence, and the record is devoid of anything that
could make the timing evidence stronger or could convince a
reasonable jury to find in his favor.
In fact, Walton was unable
to show that anyone at U.S. Steel who was responsible for his
termination even had knowledge of his workers’ compensation
claim.
Absent such knowledge, there can be no causal link.
See
Luckie v. Ameritech Corp., 389 F.3d 708, 715 (7th Cir. 2004).
Walton’s final complaint is that he was subjected to intentional infliction of emotional distress because U.S. Steel caused
his second allergic reaction, terminated his workers’ compensation benefits, and terminated his employment.
"Intentional
infliction of emotional distress is committed by 'one who by
extreme and outrageous conduct intentionally or recklessly causes
severe emotional distress to another[.]'"
18
Branham v. Celadon
Trucking Services, Inc., 744 N.E.2d 514, 522–23 (Ind. App. 2001)
(citing and quoting Ledbetter v. Ross, 725 N.E.2d 120, 123–24
(Ind. App. 2000)).
The basis of the tort is the intent to harm
emotionally. Ledbetter, 725 N.E.2d at 124. The tort occurs when a
defendant (1) engages in extreme and outrageous conduct that (2)
intentionally or recklessly (3) causes (4) severe emotional
distress to another.
Branham, 744 N.E.2d at 523.
Indiana courts regularly quote Section 46 of the Restatement
(Second) of Torts in describing the extreme and outrageous conduct required to sustain a cause of action for this tort:
Extreme and outrageous conduct. The cases
thus far decided have found liability only
where the defendant's conduct has been extreme and outrageous. It has not been enough
that the defendant has acted with an intent
which is tortious or even criminal, or that
he has intended to inflict emotional distress, or even that his conduct has been
characterized by "malice," or a degree of
aggravation which would entitle the plaintiff
to punitive damages for another tort. Liability has been found only where the conduct has
been so outrageous in character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community. Generally, the case is one
in which the recitation of the facts to an
average member of the community would arouse
his resentment against the actor, and lead
him to exclaim, "Outrageous!"
Creel v. I.C.E. & Associates, Inc., 771 N.E.2d 1276, 1282 (Ind.
App. 2002); Branham, 744 N.E.2d at 523; Bradley v. Hall, 720
19
N.E.2d 747, 752–53 (Ind. App. 1999); Gable v. Curtis, 673 N.E.2d
805, 809–10 (Ind. App. 1996).
Defining extreme and outrageous conduct depends upon the
prevailing cultural norms and values. Bradley, 720 N.E.2d at 753.
"In the appropriate case, the question can be decided as a matter
of law."
Dietz v. Finlay Fine Jewelry Corp., 754 N.E.2d 958, 970
(Ind. App. 2001). Compare Bradley, 720 N.E.2d at 752 (finding
that a genuine issue of material fact existed as to whether a
supervisor engaged in extreme and outrageous conduct by allegedly
shouting at the employee, criticizing her work in front of other
employees, inquiring about her menopause and whether her husband
was sexually impotent from his diabetes, and misrepresenting the
security of her position of employment) and Mitchell v. Steven-
son, 677 N.E.2d 551, 563–64 (Ind. App. 1997) (finding that disinterring deceased's remains, removing headstone, and cremating
deceased against the wishes of deceased and other family members
was extreme and outrageous conduct) with Lindsey v. DeGroot, 898
N.E.2d 1251, 1264–65 (Ind. App. 2009) (finding that dairy employees' alleged nuisance, negligence, trespass, and criminal mischief were not extreme and outrageous conduct); Lachenman v.
Stice, 838 N.E.2d 451, 457 (Ind. App. 2005) (finding that failure
to control dog which attacked and killed the plaintiff's dog was
not extreme and outrageous conduct); Conwell v. Beatty, 667
20
N.E.2d 768, 775–76 (Ind. App. 1996) (finding no outrageous conduct where a sheriff announced a deputy's arrest at a press
conference and refused to assist that deputy in completing
retirement forms); and Gable, 673 N.E.2d at 811 (holding that
large number of phone calls lacking obscenity or threatened
violence, whether or not justified, was not sufficiently outrageous to state a cause of action).
Walton first complains that he suffered emotional distress
because U.S. Steel caused his second allergic reaction.
This
implicates the Workers’ Compensation Act because Walton previously received benefits under the Act for his allergic reaction
and signed a release waiving all claims, past, present, and
future, relating to the incident.
Under the Indiana Worker's
Compensation Act, "[t]he rights and remedies granted to an
employee . . . on account of personal injury . . . by accident
shall exclude all other rights and remedies of such employee
. . . on account of such injury . . . except for [remedies for
compensating victims of violent crimes]." Ind. Code. §22–3–2–6.
The Indiana Workers' Compensation Act is the exclusive remedy for
an employee subject to the Act, and it has abolished all common
law actions against an employer likewise subject to the Act.
Kottis v. U.S. Steel Corp., 543 F.2d 22, 24 (7th Cir. 1976)
(quoting Hickman v. W. Heating & Air Conditioning Co., 207
21
F.Supp. 832, 833 (N.D. Ind. 1962)). See also Sims v. United
States Fidelity & Guaranty Co., 782 N.E.2d 345, 349–50 (Ind.
2003) (exclusivity provision bars a court from hearing common law
actions for the same injury that the employee is entitled to
receive worker's compensation benefits).
However, the injury must result from an accident, and therefore intentional acts are outside the scope of the Act.
See
Williams v. Delta Steel Corp., 695 N.E.2d 633, 635 (Ind. App.
1998).
To show that an act was intentional, the plaintiff must
allege that the employer either deliberately intended to inflict
injury or had actual knowledge that an injury was likely to
occur.
Baker v. Westinghouse Elec. Corp., 637 N.E.2d 1271, 1275
(Ind. 1994).
Once an employee has elected to receive compensa-
tion under the Workers' Compensation Act, he is precluded from
initiating a common lawsuit. By accepting and receiving compensation, the employee "concedes that the injury was accidental in
nature and that it arose out of and in the course of employment."
Williams, 695 N.E.2d at 635. The employee may not repudiate his
position and claim that the injury was intentional. Williams, 695
N.E.2d at 635.
The settlement of Walton's workers’ compensation claim is
fatal to Walton’s IIED claim for two reasons.
Walton both waived
his right to pursue any claims, past, present, and future, aris-
22
ing from the second allergic reaction, and his acceptance of
benefits serves as an acknowledgment that U.S. Steel’s actions
See Williams, 695 N.E.2d at 635 (explain-
were not intentional.
ing that a claimant admits that his employer’s acts were unintentional when he accepts benefits under the Workers’ Compensation
Act).
Absent some evidence of duress or coercion to enter the
agreement, Walton cannot revoke his waiver and pursue a tort
claim against U.S. Steel.
The Workers’ Compensation Act is the
exclusive remedy for unintended work-related injuries, and by
entering this agreement and accepting benefits, Walton is precluded from arguing that U.S. Steel’s actions were intentional
and cannot pursue a claim for intentional infliction of emotional
distress arising from his second allergic reaction.
Not only has Walton conceded that U.S. Steel’s actions were
not intentional by receiving benefits and settling the claim, he
also has produced no facts to show that U.S. Steel had Walton
return to work with the intent of injuring him, that he suffered
severe emotional distress, or that U.S. Steel’s actions were
extreme and outrageous.
Walton was cleared by his physician and
the plant doctor to return to work, and neither Walton nor his
manager believed there was nickel present in the tin mill where
Walton was assigned.
Walton has pointed to no evidence to show
that U.S. Steel had Walton return to work in this department with
23
the purpose of causing his second allergic reaction.
Nor has he
demonstrated that West acted in an extreme and outrageous manner
when he told Nurse Lax that Walton’s condition could be accommodated because there was no nickel in the tin mill.
Because
Walton would bear the burden to prove that U.S. Steel intended
his injury and that their actions were extreme and outrageous,
and he has produced no evidence in support, summary judgment must
be awarded to U.S. Steel on this claim.
Walton next complains that he suffered IIED because his
workers’ compensation benefits were terminated.
However, the
Indiana Workers’ Compensation Board has exclusive jurisdiction to
determine whether an employer has committed an independent tort
in adjusting or settling an injured workers’ claim.
§22-3-4-12.1(a); Sims, 782 N.E.2d at 349.
Ind. Code
Walton’s IIED claim is
a tort arising from the manner in which U.S. Steel settled his
claim.
Therefore, it falls within the exclusive jurisdiction of
the Workers’ Compensation Board, and cannot be heard by this
court.
Finally, Walton alleges that he suffered emotional distress
because he was discharged, but he has failed to show that a
reasonable jury could conclude that U.S. Steel’s actions were
extreme and outrageous.
Generally, disciplining and terminating
an employee is not severe enough to meet the standard to show
24
McDowell v. J.B. Hunt Transport,
extreme and outrageous conduct.
Inc., 2004 WL 1878334, *6 (N.D. Ill. 2004) (citing Socorro v. IMI
Data Search, Inc., 2003 WL 1964269, *5 (N.D. Ill. April 28, 2003)
(explaining that termination based on false information of
criminal history, which was then repeated to other potential
employers, was not extreme and outrageous conduct to give rise to
IIED claim)).
The employee must show that the termination was
extreme or outrageous.
This may be accomplished by showing
threats, insults, harassment, or harsh language. See Leetch v.
Heniff Transportation Systems, 2010 WL 3171771, *2 (N.D. Ill.
Aug. 11, 2010).
A termination that was done matter-of-factly
Leetch, 2010 WL 3171771 at *2.
will not satisfy this standard.
There is nothing of record to show that U.S. Steel acted in
an extreme and outrageous manner when terminating Walton’s
employment.
Walton has not complained or provided evidence of
insults, threats, or harassment.
Rather, it appears that he was
terminated in a civil, professional manner and that his termination was supported by adequate reason. U.S. Steel’s stated reason
for terminating Walton was confirmed on appeal and approved by
the arbitration board, and at each level of the grievance process
it was determined that U.S. Steel had sufficient cause to terminate Walton.
Without any evidence to contradict this multi-level
confirmation of U.S. Steel’s actions as reasonable, or to show
25
that U.S. Steel acted in an outrageous manner during the act of
terminating Walton, he falls far short of establishing that U.S.
Steel acted in an extreme and outrageous manner by terminating
his employment.
Accordingly, summary judgment must be awarded in
favor of U.S. Steel on this claim.
_______________
Based on the foregoing, the Motion for Summary Judgment [DE
54] filed by the defendant, United States Steel Corporation, on
April 30, 2012, is GRANTED.
ENTERED this 21st day of December, 2012
s/ ANDREW P. RODOVICH
United States Magistrate Judge
26
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