Williams v. United States Steel Corporation
Filing
28
OPINION AND ORDER: Court GRANTS 18 Motion for Summary Judgment. Signed by Magistrate Judge Andrew P Rodovich on 8/6/2012. (tc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
LAKISSA D. WILLIAMS,
)
)
Plaintiff
)
)
v.
)
)
UNITED STATES STEEL CORPORATION,)
)
Defendant
)
CIVIL NO. 2:10 cv 425
OPINION AND ORDER
This matter is before the court on the Motion for Summary
Judgment [DE 18] filed by the defendant, United States Steel
Corporation, on February 29, 2012.
For the reasons set forth
below, the motion is GRANTED.
Background
In 2005, the plaintiff, Lakissa Williams, was hired by the
defendant, U.S. Steel, at its Gary, Indiana steel manufacturing
facility (Gary Works) as a Labor Grade 1 in the Tin Products
Division.
She was promoted to Labor Grade 2, Utility Technician,
on February 6, 2007, and held this position at all times relevant
to her complaint.
Williams is a member of the United Steel,
Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO/CLC.
U.S.
Steel and the Union negotiated a Basic Labor Agreement (BLA)
which governed the terms of employment for labor employees at
Gary Works.
The BLA gave U.S. Steel the exclusive right to
manage the business and direct the working forces, grievances and
arbitration, suspensions and discharges, and wages and incentives.
Under the BLA, an employee who temporarily was assigned
at the request or direction of the company to another job was to
receive the established rate of pay for the job performed and to
receive special allowances as may be required to equal the
earnings that otherwise would have been realized by the employee.
As explained in the BLA, Utility Technicians are responsible
for operating equipment and performing tasks that support operations of the various production units and for working with
materials and equipment to handle, transport, and process product
and materials.
Utility Technicians in the Tin Coating Department
perform various production line functions (Solution Tender,
Feeder, Shearman, and Piler) and non-line functions (Stocker and
Ram Tractor).
Utility Technicians receive the same base rate of
pay regardless of whether they perform line or non-line functions, but incentives vary depending upon production and whether
the Utility Technician works a line or non-line job.
Utility
Technicians working on the line generally earn more incentive pay
than Utility Technicians performing non-line functions.
Between January and June 2009, Williams primarily was assigned to the line as a Shearman.
In February 2009, Williams
began experiencing difficulty with her asthma and requested
2
intermittent leave under the Family and Medical Leave Act (FMLA).
Williams’ certifying physician estimated that she would require
one to two days of leave per month, however, Williams missed five
shifts in April, three shifts in May, and five shifts in June.
When Williams was unable to report for work, U.S. Steel had to
pay another employee to work overtime or the production would
shut down.
According to U.S. Steel, this increased its produc-
tion costs.
Beginning in July 2009, U.S. Steel assigned Williams to the
non-line Stocker and Tractor Driver functions.
U.S. Steel states
that it removed Williams from the line position to minimize overtime costs because of Williams’ frequent FMLA leave.
The Stocker
and Tractor Driver functions fall within the job description for
Utility Technician.
Williams received the same base pay and non-
line incentives as male employees working non-line positions.
The union filed a grievance challenging Williams’ removal
from the line.
U.S. Steel denied the grievance, stating that
Williams was placed in the less critical function of tractor
operator due to her consistent absences from work related to her
FMLA leave, which increased U.S. Steel’s overtime costs.
The BLA
provided for additional levels of review, but the union chose not
to pursue Williams’ grievance any further.
U.S. Steel reassigned
Williams to the line by January or February 2010 and reinstated
3
her line incentives.
At her deposition, Williams admitted that
U.S. Steel moved her from the Shearman position based solely on
her FMLA absences.
Williams filed a charge against U.S. Steel with the EEOC,
claiming she was subject to gender discrimination and harassment.
The EEOC chose not to pursue Williams’ complaint and issued a
Notice of Rights on July 26, 2010.
Williams filed her complaint
with this court on October 26, 2010, alleging gender discrimination, harassment, and various state law claims, including negligent supervision and retention and intentional infliction of
emotional distress.
Williams’ EEOC charge centered around her removal from the
line position and subsequent reduction in incentive pay.
At her
deposition, Williams testified that she was subject to gender
harassment because she was sent home from work, assigned meaningless tasks, and denied access to a shanty to warm up on cold
days.
Specifically, Williams complains that she was scheduled to
work as an Exit Driver on August 5, 2009, and upon arrival, was
asked to work on the line in the Shearman position.
Williams had
taken cold medication earlier that day and was sent to the plant
medical facility for evaluation regarding her fitness to perform
the requirements of the Shearman position.
The plant medical
facility concluded that she could return to work in the capacity
4
she originally was scheduled but could not perform the Shearman
position.
Instead of allowing her to work her assigned position,
U.S. Steel management sent Williams home.
She was not allowed to
return until she received a medical release, and she missed work
between August 5, 2009 and August 11, 2009.
Williams also complained that her foreman, Derek Cheeseborough, began harassing her through a discipline issued in May
2009.
On May 17, 2009, Cheeseborough disciplined Williams for
failing to report off.
Under its progressive discipline princi-
ples, U.S. Steel issued two five day suspensions to Williams for
improperly reporting off and being absent without cause.
U.S.
Steel subsequently removed the suspensions during the grievance
procedure, and Williams did not serve the suspensions.
Williams
also referenced a notice that Cheeseborough posted for the crews
which stated "due to the recent increased [sic] in call offs, you
will be required to work as scheduled!!
We will no longer accept
shift trades or giving away scheduled OT turns as of today."
Williams believed the notice was directed at her.
Williams also identified co-workers who missed work and were
not removed from their line positions.
Williams first pointed to
Jack Overturf, who worked on the line as a Solution Tender and
eventually was given a special assignment to accommodate his FMLA
absences.
Overturf’s special assignment included assisting
5
lesser experienced Solution Tenders with functions they were not
capable of performing, such as monitoring tank levels, starting
and stopping pumps, and opening/closing valves.
Overturf re-
ceived line incentive pay during his special assignment.
U.S.
Steel represents that Overturf received the line incentive pay
because the work supported the Solution Tender functions, which
was line work.
Williams also identified Roy Frost, another U.S. Steel
employee who had been threatened with removal from his line
position due to excessive FMLA leave.
Williams states that she
was personally aware that Frost had used more FMLA leave than she
had.
Frost also worked as a Shearman, but U.S. Steel contends
that Frost’s attendance dramatically improved as a result of
discipline issued against him on March 3, 2010, and for this
reason, U.S. Steel did not remove him from the line.
Williams also pointed to instances where U.S. Steel management corrected the pay given to male employees who complained
they were incorrectly paid.
Williams testified that Doug Lillie
worked the Tractor due to a scheduling need and initially was
paid the non-line incentive.
An unknown manager allegedly paid
Lillie the line incentive after he complained.
Another employee,
whom Williams knew only as "Big D", was a Solution Tender but
sometimes worked the Tractor due to scheduling issues and re-
6
ceived the line incentive.
Williams also pointed to Kevin
Oliver, who complained when Williams, who had less seniority, was
assigned to a line position over him.
Oliver was allowed to work
the non-line position but received line incentive.
At her depo-
sition, Williams admitted Oliver was paid correctly under the BLA
because the error was due to a scheduling problem.
Williams also
referenced Walker Steel and Harold Frank, who had their pay
corrected by management, although Williams did not know the basis
of the errors.
Finally, Williams identified Jonathan Haywood,
who was moved from a Labor Grade 4 Operator position to a Shearman position and still received the Labor Grade 4 wage.
Hay-
wood’s removal from the Operator to the Shearman position was
prompted by a discipline he received in June 2009.
U.S. Steel
has explained that Haywood had quality issues shortly after
becoming an Operator, which resulted in a five-day suspension.
U.S. Steel and the Union agreed to move Haywood to the Shearman
position as an alternative to discipline so he could train longer
with other Operators.
U.S. Steel now moves for summary judgment on all of Williams’ claims.
Discussion
Pursuant to Federal Rule of Civil Procedure 56(c), summary
judgment is proper only if it is demonstrated that "there is no
7
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
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).
8
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
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)
9
(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).
Title VII enables a plaintiff to prove discrimination by
direct evidence of discriminatory intent or, where no direct
evidence exists, by using the indirect-burden shifting method
established in McDonnell Douglas Corporation v. Green, 411 U.S.
792, 802-805, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973), and
refined in Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253, 101 S.Ct. 1089, 1092, 67 L.Ed.2d 207 (1981). See
Moser v. Indiana Department of Corrections, 406 F.3d 895, 900-01
(7th Cir. 2005).
The direct method requires the plaintiff to
show through either direct or circumstantial evidence that the
employer's adverse employment action was impermissibly motivated.
Wilkins v. Riveredge Hospital, 130 Fed. Appx. 823, 828 (7th Cir.
2005).
10
The most general statement of the McDonnell Douglas method
of proof is that the plaintiff has the initial burden of showing
that: 1) she belongs to a protected group; 2) she was performing
to the employer’s legitimate expectations; 3) she suffered an
adverse employment decision; and 4) the employer treated similarly situated employees who are not in the protected group more
favorably.
See Keeton v. Morningstar, 667 F.3d 877, 884 (7th
Cir. 2012); Moser, 406 F.3d at 900; O'Neal v. City of Chicago,
392 F.3d 909, 911 (7th Cir. 2004); Williams v. Waste Management
of Illinois, Inc., 361 F.3d 1021, 1029 (7th Cir. 2004).
This
framework is flexible and may be adapted to fit each case.
Burdine, 450 U.S. at 253 n.6, 101 S.Ct. at 1094 n.6; Wohl v.
Spectrum Manufacturing, Inc., 94 F.3d 353, 359 (7th Cir. 1996).
Once the plaintiff has met this initial burden, "a presumption of discrimination arises, and the employer must articulate a
legitimate, nondiscriminatory reason for its employment action."
Moser, 406 F.3d at 895; O'Neal, 392 F.3d at 911.
The defendant’s
burden is not one of persuasion, but rather of production and
"can involve no credibility assessment."
St. Mary’s Honor Center
v. Hicks, 509 U.S. 502, 509, 113 S.Ct. 2742, 2748, 125 L.Ed.2d
407 (1993); Reeves, 530 U.S. at 142, 120 S.Ct. at 2106.
The
burden then shifts back onto the plaintiff to show that the
reason given by the defendant is just a pretext for discrimina-
11
Moser, 406 F.3d at 900-01. The plaintiff cannot establish
tion.
pretext merely by showing that the "reason was doubtful or mistaken."
Crim v. Board of Education of Cairo School District No.
1, 147 F.3d 535, 541 (7th Cir. 1998).
Rather, the plaintiff must
show that the employer is lying or that the employer’s reasoning
has no basis in fact.
Guerrero v. Ashcroft, 253 F.3d 309, 313
(7th Cir. 2001); Ransom v. CSC Consulting, Inc., 217 F.3d 467,
471 (7th Cir. 2000); Crim, 147 F.3d at 541.
Despite the shifting burden of production, the ultimate
burden of persuasion remains at all times with the plaintiff.
Moser, 406 F.3d at 901; Haywood v. Lucent Technologies, Inc., 232
F.3d 524, 531 (7th Cir. 2003);
Stockett v. Muncie Indiana Tran-
sit System, 221 F.3d 997, 1001 (7th Cir. 2000).
A plaintiff
alleging discrimination, however, has a lesser burden when
proceeding on a summary judgment motion.
In Anderson v. Baxter
Healthcare Corp., 13 F.3d 1120 (7th Cir. 1994), the Seventh
Circuit stated:
Both McDonnell Douglas and [St. Mary’s Honor
Center v. Hicks, 509 U.S. at 507, 113 S.Ct.
at 2747] speak to the burden the plaintiff
bears at trial. However, for summary judgment purposes, the nonmoving party, in this
case the plaintiff, has a lesser burden. He
must only "produce evidence from which a
rational fact-finder could infer that the
company lied" about its proffered reasons for
dismissal.
12
13 F.3d at 1124 (quoting Shager v. Upjohn,
913 F.2d 398, 401 (7th Cir. 1994))
See also Plair v. E.J. Brach & Sons, Incorporated, 105 F.3d 343,
349 (7th Cir. 1997); Cliff v. Board of School Commissioners of
the City of Indianapolis, Indiana, 42 F.3d 403, 412 (7th Cir.
1994).
If the plaintiff is unable to meet her burden, her claims
must fail.
Williams has not presented direct evidence of discrimination
and has chosen to proceed on the indirect method of proof.
Williams was a member of a protected class, women.
The parties
dispute whether she was performing in accordance with U.S.
Steel’s legitimate expectations, suffered an adverse employment
decision, and was treated less favorably than similarly situated
employees who were not in the protected group.
U.S. Steel argues that Williams was not performing in
accordance with its expectations because her frequent absences
were incompatible with working on the line and caused U.S. Steel
to incur overtime costs. Williams’ leave also exceeded expectations of her treating physician.
Williams responded that she was
exercising her statutory right by seeking leave under the FMLA
for her condition and that her frequent absences due to her
medical condition alone are insufficient to establish that she
was not meeting her employer’s legitimate expectations.
13
The Family Medical Leave Act, 29 U.S.C. §2612, states that
"an eligible employee shall be entitled to a total of 12 workweeks of leave any 12-month period for one or more of the following: . . . (D) Because of a serious health condition that makes
the employee unable to perform the functions of the position of
such employee."
The FMLA makes it unlawful for an employer to
"interfere with, restrain, or deny the exercise of or the attempt
to exercise, any right provided under [the Act]".
§2615(a)(1).
29 U.S.C.
The FMLA also provides that it is "unlawful for any
employer to discharge or in any other manner discriminate against
any individual for opposing any practice made unlawful by this
subchapter."
29 U.S.C. §2615(a)(2).
Specifically, the employer
may not discharge or discriminate in any manner against an
employee who has filed a charge or instituted a proceeding under
the Act, who has given information in connection with a proceeding under the Act, or who has testified in any proceeding relating to a right provided under the Act.
29 U.S.C. §2615(b).
Interference arises when an employer either refuses to allow
FMLA leave or discourages an employee from taking leave to which
she is entitled.
29 C.F.R. §825.220(b); Dean v. Wackenhut Corp.,
2011 WL 610946, *3 (N.D. Ill. Dec. 7, 2011); Stallings v. Huss-
mann Corp., 447 F.3d 1041, 1050 (8th Cir. 2006).
An employer
violates this provision when it takes some action to deter an
14
employee from participating in an activity protected by the FMLA
by interference or restraint, such as attaching negative consequences to the exercise of protected rights.
Stallings, 447 F.3d
at 1050 (citing Bachelder v. Am. W. Airlines, Inc., 259 F.3d
1112, 1124 (9th Cir. 2001)).
To establish a claim for interfer-
ence, the employee must show both that she was entitled to a
benefit under the FMLA and that her employer interfered with her
"substantive rights under the FMLA for a reason connected with
[her] FMLA leave."
Stallings, 447 F.3d at 1050.
An employer is
not strictly liable for every discharge during FMLA leave, and
suspicious timing alone is insufficient to establish a violation
of the interference clause.
Kidwell, 679 F.3d at 966 (The reason
is obvious: "[s]uspicious timing may be just that — suspicious —
and a suspicion is not enough to get past a motion for summary
judgment.")(citing Loudermilk v. Best Pallet Co., 636 F.3d 312,
315 (7th Cir. 2011) (citation omitted)).
Rather, it must be
established that the employer’s reason for imposing negative
consequences was related to the FMLA leave.
Although the em-
ployee does not need to prove intent, she must show by direct or
circumstantial evidence that the FMLA leave was a factor considered by the employer when making the decision to impose negative
consequences.
15
The Seventh Circuit also has recognized a cause of action
Kauffman v. Federal Express
for retaliation under the FMLA.
Corp., 426 F.3d 880, 884 (7th Cir. 2005).
"[T]he difference is
that [a claim for retaliation] requires proof of discriminatory
or retaliatory intent while [interference] requires only proof
that the employer denied the employee his or her entitlements
under the Act."
Kauffman, 426 F.3d at 884.
Both interference
and retaliation may be shown when an employer does not return an
employee to an equivalent position upon return from FMLA leave.
"An employee is entitled to be returned to the same position the
employee held when leave commenced, or to an equivalent position
with equivalent benefits, pay, and other terms and conditions of
employment."
29 C.F.R. §825.214.
U.S. Steel does not dispute that Williams was entitled to
FMLA leave.
In fact, U.S. Steel granted her intermittent leave
upon every request.
Although U.S. Steel is correct that Williams
is not asserting a claim for interference or retaliation under
the FMLA, Williams’ statutory rights remain pertinent to the
analysis to determine if U.S. Steel’s expectations were legitimate.
The Seventh Circuit has explained that it "will not second
guess an employer’s policies that are facially legitimate."
Brummett v. Lee Enterprises, Inc., 284 F.3d 742, 745 (7th Cir.
16
2002) (emphasis added).
By its own admission, U.S. Steel moved
Williams from a line position to a non-line position that generally earns lower incentive pay due to her frequent requests for
FMLA leave.
Although attendance may be a legitimate expectation
for employment, it is not facially legitimate to enforce a policy
that is contrary to an employee’s statutory right to leave.
The
FMLA protects employees from negative consequences in the wake of
taking FMLA leave.
By moving Williams from the line to a posi-
tion that typically earns lower incentive pay, U.S. Steel, if
nothing more, discouraged Williams from taking FMLA leave and
interfered with her statutory rights.
The court is unwilling to
find that a policy that controverts an employee’s statutory
rights is facially legitimate.
For this reason, the court will
consider Williams’ behavior compared to all of U.S. Steel’s
legitimate policies.
The parties next dispute whether Williams suffered from an
adverse employment decision.
The Seventh Circuit broadly defines
the phrase "adverse employment action" to mean "one that is
materially adverse, meaning more than a mere inconvenience or an
alteration of job responsibilities." Hilt-Dyson v. City of
Chicago, 282 F.3d 456, 465 (7th Cir. 2002) (quotation and citation omitted).
See Arizanovska v. Wal-Mart Stores, Inc., 682
F.3d 698, 703 (7th Cir. 2012).
Under this definition, the court
17
recognizes three categories of materially adverse employment
actions:
(1) cases in which the employee's compensation, fringe benefits, or other financial
terms of employment are diminished, including
termination; (2) cases in which a nominally
lateral transfer with no change in financial
terms significantly reduces the employee's
career prospects by preventing her from using
her skills and experience, so that the skills
are likely to atrophy and her career is likely to be stunted; and (3) cases in which the
employee is not moved to a different job or
the skill requirements of her present job
altered, but the conditions in which she
works are changed in a way that subjects her
to a humiliating, degrading, unsafe, unhealthful, or otherwise significantly negative alteration in her workplace environment.
O'Neal, 392 F.3d at 911; Arizanovska, 682
F.3d at 703
See also Herrnreiter v. Chicago Housing Authority, 315 F.3d 742,
744-45 (7th Cir. 2002), cert. denied, 540 U.S. 984, 124 S.Ct.
472, 157 L.Ed.2d 375 (2003).
U.S. Steel argues that the non-line position Williams
temporarily was reassigned to was encompassed in the description
for her position and that it was within its discretion to assign
Williams to the line or non-line position as it saw fit under the
terms of the collective bargaining agreement. It is U.S. Steel’s
position that Williams was not entitled to the line position, and
absent such an entitlement, its decision was not adverse.
U.S.
Steel also equates the incentive pay to a bonus, arguing that an
18
employer’s denial of a bonus is not an adverse employment action.
See Rabinowitz v. Pena, 89 F.3d 482, 488-89 (7th Cir. 1996)
(adverse performance review resulting in loss of $600 bonus was
not an adverse employment action if employee was not automatically entitled to the bonus); Miler v. American Family Mutual
Insurance Co., 203 F.3d 997, 1006 (7th Cir. 2000) (employer’s
decision not to give employee a higher raise was not an adverse
action).
It would be difficult for the court to conclude that the
reassignment was not adverse.
True, Williams’ job description
encompassed both line and non-line positions.
However, the
evidence suggests that the line positions typically were given to
employees with greater seniority and that Williams consistently
was assigned to line positions prior to her leave.
Williams has
pointed to Kevin Oliver, who complained that Williams was assigned to the line despite his seniority and was awarded the line
incentive pay for the time he spent completing non-line duties.
U.S. Steel attempts to distinguish this because it was due to a
scheduling error.
However, this "scheduling error" suggests that
employees with greater seniority had some entitlement to the line
positions.
Moreover, Williams consistently performed line work
prior to her reassignment.
Given the length of time she spent
performing line work, a jury could conclude that the reassignment
19
was adverse.
The Seventh Circuit has acknowledged that discrimi-
nation arises when "financial terms of employment are diminished."
When she was reassigned to the non-line position, it is
undisputed that Williams experienced decreased "financial terms"
because her incentive pay was diminished.
Williams has demon-
strated that a genuine issue of material fact remains pending on
this issue.
Finally, the parties dispute whether Williams pointed to a
similarly situated employee who was treated more favorably.
"An
employee is similarly situated to a plaintiff if the two employees not only report to the same supervisor, but also have engaged
in similar conduct without such differentiating circumstances as
would distinguish the employer's treatment of them."
Mohamad v.
Board of Trustees of Purdue University, 2008 WL 2074401, *2 (N.D.
Ind. 2008) (citing Snipes v. Ill. Dep't of Corrs., 291 F.3d 460,
463 (7th Cir. 2002)).
Williams pointed to several employees who
she alleges were similarly situated.
U.S. Steel attempts to
distinguish each situation from Williams.
First, Williams pointed to Overturf, who received line incentive pay during his special assignment to accommodate his FMLA
absences. Both employees worked in the same department, at the
same grade level, for the same management, and requested leave
under the FMLA, resulting in intermittent absences.
20
U.S. Steel
argues that during his reassignment, Overturf continued to do
line work, but in a different capacity from his original assignment, and for this reason, he continued to receive line incentive
pay.
Although Overturf continued to perform line work and was
entitled to line incentives, U.S. Steel has not shown why a
similar accommodation could not have been made so Williams could
have continued to perform line work in a capacity that would
accommodate her condition.
This is insufficient to establish
that the circumstances were so adverse as to warrant different
treatment.
Williams also identified Frost, who had been threatened with
removal from his line position due to excessive FMLA leave.
Despite taking more FMLA leave than Williams, Frost was disciplined and remained on the line, earning line incentives.
Again,
U.S. Steel attempts to distinguish the situation, arguing that
Frost’s attendance improved as a result of the threat of removal
from the line.
The threat of discipline does not distinguish
Frost’s situation to the extent that he should be discounted as a
similarly situated employee.
Frost was employed at the same
labor grade, in the same department, under the same management,
and took FMLA leave.
The similarities are clear, yet Williams
was treated differently than Frost for taking leave.
21
Williams pointed to additional employees, none of whom
requested FMLA leave.
Doug Lillie and "Big D" were paid line
incentives after working non-line jobs because there was a scheduling need.
They had not been absent or taken intermittent leave
and did not require a replacement for their line position.
similarity is more attenuated.
This
Williams arguably was reassigned
due to scheduling needs and did not receive line incentives.
Williams identified two other employees, Walker Steel and
Harold Frank, whom she complained had their pay adjusted, but she
could not articulate the reason why management adjusted their
pay.
Without such information, the trier of fact could not make
the appropriate comparison.
However, Williams has identified
several employees whose situations closely reflect Williams.
U.S. Steel’s reference to slight differences does not sufficiently distinguish Williams’ situation from Overturf and Frost.
There is sufficient evidence before the court for Williams
to establish a prima facie case, shifting the burden to U.S.
Steel to show a legitimate, non-discriminatory reason for the
adverse employment action.
U.S. Steel has explained that it
transferred Williams to the non-line position because of her
excessive intermittent leave requests.
When Williams reported
off work, U.S. Steel had to find someone to fill her shift and
incurred overtime costs.
Because the plant could continue to
22
operate if a non-line employee called off, U.S. Steel found it
most efficient to move Williams to the non-line position temporarily.
U.S. Steel has presented a reason for its employment decision that is unrelated to Williams’ gender, shifting the burden
to Williams to show that the reason U.S. Steel set forth is a
pretext.
"'Pretext' does not mean that the employer was mistaken
in its decision; rather, pretext 'means a lie, specifically a
phoney reason for some action.'"
Tipswod v. Oilvy & Mather,
Inc., 918 F.Supp. 217, 222 (N.D. Ill. 1996) (citing Russell v.
Acme–Evans Co., 51 F.3d 64, 69 (7th Cir. 1995)).
To show pretext
without direct evidence, the plaintiff must show "(1) that the
proffered reasons had no basis in fact, (2) that the proffered
reasons did not actually motivate [her] discharge, or (3) that
they were insufficient to motivate discharge." Cliff v. Board of
Sch. Comm'rs of City of Indianapolis, 42 F.3d 403, 412 (7th Cir.
1994).
Williams has failed to show any connection between her
temporary reassignment to the non-line position and her gender.
At her deposition, Williams confirmed U.S. Steel’s reason and
admitted that her reassignment was due to her intermittent FMLA
leave.
Williams cannot now take a different position and argue
that the reason was given in an attempt to hide U.S. Steel’s true
23
motive.
Nothing of record suggests that U.S. Steel removed
Williams from the line for any reason other than her excessive
absenteeism.
In fact, Williams pointed to another woman, Adele
Crawford, who was permitted to remain on the line despite having
several absences, which suggests that U.S. Steel did not reassign
Williams because of her gender.
Although Williams may have had a
strong case for interference of her rights under the FMLA or
retaliation for exercising her rights thereunder, Williams has
not requested such relief and has not shown the slightest connection between the adverse employment action and her gender.
The
record is devoid of evidence calling U.S. Steel’s stated reason
for reassigning Williams into question.
By her own admission,
U.S. Steel’s stated reason for reassignment is accurate.
Williams also complains that she was subject to gender
harassment.
Title VII provides that it is unlawful to "fail or
refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of
such individual's . . . sex."
42 U.S.C. §2000e-2(a)(1). See also
Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 63, 106 S.Ct.
2399, 2404, 91 L.Ed.2d 49 (1986).
Included in this "spectrum" is
a prohibition against "requiring people to work in a discriminatorily hostile or abusive environment."
24
Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 370, 126 L.Ed.2d
295 (1993).
Thus, "[w]hen the workplace is permeated with dis-
criminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title
VII is violated."
Harris, 510 U.S. at 21, 114 S.Ct. at 370 (quo-
tation marks and citations omitted).
To establish that she was subjected to a hostile work environment, a complainant must show that
(1) her work environment was both objectively
and subjectively offensive; (2) the harassment complained of was based on her gender;
(3) the conduct was either severe or pervasive; and (4) there is a basis for employer
liability.
Overly v. KeyBank National Association, 662
F.3d 856, 862 (7th Cir. 2011)
See also Romansizak-Sanchez v. International Union of Operating
Engineers, Local 150, AFL-CIO, 121 Fed. Appx. 140, 144-45 (7th
Cir. 2005)(quoting Hall v. Bodine Electric Company, 276 F.3d 345,
354-55) (7th Cir. 2002); Rhodes v. Illinois Department of Trans-
portation, 359 F.3d 498, 505 (7th Cir. 2004).
A work environment must be both subjectively and objectively
offensive in order to be hostile.
Overly, 662 F.3d at 862;
Rhodes, 359 F.3d at 505 (quoting Hilt-Dyson, 282 F.3d at 463).
Whether an environment is objectively hostile depends on "all of
25
the circumstances, including the frequency and severity of conduct, whether it is threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interfered with an
employee's work performance."
Romansizak-Sanchez, 121 Fed. Appx.
at 145 (quoting Smith v. Northeastern Illinois University, 388
F.3d 559, 566 (7th Cir. 2004).
See also Wyinger v. New Venture
Gear, Inc., 361 F.3d 965, 975-76 (7th Cir. 2004).
In determining whether harassment is "based on sex" in the
context of a hostile environment claim, "[t]he critical issue
. . . is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the
other sex are not exposed." Oncale v. Sundowner Offshore Ser-
vices, 523 U.S. 75, 80, 118 S.Ct. 998, 1002, 140 L.Ed.2d 201
(1998).
See also Overly, 662 F.3d at 863; Hilt-Dyson, 282 F.3d
at 462-63.
In other words, "an employer cannot be held liable
for creating or condoning a hostile working environment unless
the hostility is motivated by gender." Berry v. Delta Airlines,
Inc., 260 F.3d 803, 808 (7th Cir. 2001).
See also Oncale, 523
U.S. at 80, 118 S.Ct. at 1002 (Ginsburg, J., concurring) (noting
that although harassment "need not be motivated by sexual desire," it must be "clear that the harasser is motivated by general hostility to the presence of" a particular gender).
Passan-
anti v. Cook County, 2012 WL 2948524, *7 (7th Cir. July 20, 2012).
26
Thus, the simple fact that a victim is female does not satisfy
the requirement that the harassment she experienced is based on
her sex. See Herron v. Daimlerchrysler Corporation, 388 F.3d 293,
303 (7th Cir. 2004) (finding that the plaintiff's membership in a
protected class "does not transform" harassment related to him
into harassment related to his race).
Williams has failed to show that she could succeed in proving any of the elements to establish gender harassment.
Williams
has pointed to three isolated events, namely, she was sent home
the day the medical staff determined she could not work as a
Shearman, she was assigned meaningless tasks, and she was denied
access to a warming shelter on cold days.
Williams has not ex-
panded on these events in her response brief or made an effort to
show that they were severe and pervasive, creating both a subjective and objective hostile environment.
The record also is
devoid of evidence that Cheeseborough’s disciplinary actions
interfered with her work performance or was threatening and
humiliating.
Most notably, there is no evidence that any of these actions
were taken because of Williams’ gender.
Williams cannot rely
solely on the fact that she is a woman.
The evidence does not
show that Cheeseborough treated women differently or that he made
statements or engaged in inappropriate conduct because of Wil-
27
liams' gender.
Absent some indication that Williams was sub-
jected to disadvantageous terms or conditions that men were not,
she cannot establish a prima facie case for gender harassment.
Nor has Williams made any attempt to show why U.S. Steel should
be held liable for Cheeseborough’s actions.
At this stage of
litigation, Williams must come forth with some information to
support her claims, and she has failed to show she can meet even
one of the elements she bears the burden of proving to succeed on
a claim for gender harassment.
U.S. Steel also moved for summary judgment on Williams’
state law claims for negligent supervision and retention and
intentional infliction of emotional distress.
Williams did not
as much as mention these claims in her response brief.
Any
argument Williams may have raised in objection is considered
waived.
See Hernandez v. Cook County Sheriff’s Office, 634 F.3d
906, 913 (7th Cir. 2011); Palmer v. Marion County, 327 F.3d 588,
598 (7th Cir. 2003).
Indiana has adopted the Restatement (Second) of Torts as the
standard for assessing employer liability for the torts of its
employees.
Treat v. Tom Kelley Buick Pontiac GMC, 710 F.Supp.2d
762, 772 (N.D. Ind. 2010).
Section 317 states:
A master is under a duty to exercise reasonable care so to control his servant while
acting outside the scope of his employment as
to prevent him from intentionally harming
28
others or from so conducting himself as to
create an unreasonable risk of bodily harm to
them, if
(a) the servant
(i) is upon the premises in
possession of the master or
upon which the servant is
privileged to enter only as
his servant, or
(ii) is using a chattel of the
master, and
(b) the master
(i) knows or has reason to
know that he has the ability
to control his servant, and
(ii) knows or should know of
the necessity and opportunity
for exercising such control.
The claimant must show that the employer hired and retained the
employee despite knowing that he was in the "habit of misconducting [him]self in a manner dangerous to others."
Treat, 710
F.Supp.2d at 772 (quoting Briggs v. Finley, 631 N.E.2d 959, 967
(Ind. App. 1994)).
A cause of action for this tort accrues when
an employee "steps beyond the recognized scope of his employment
to commit a tortious injury upon a third party."
Avila v. U.S.
Steel Corp., 2010 WL 2710641, *10 (N.D. Ind. July 6, 2010) (quoting Bd. of School Com'rs of City of Indianapolis v. Pettigrew,
851 N.E.2d 326, 332 (Ind. App. 2006)). Because Indiana recognizes
the doctrine of respondeat superior, these claims are duplicative
29
and have "no value where an employer has admitted that its employee was acting within the scope of his employment."
Avila,
2010 WL 2710641 at *10 (citing Overton v. Foutty & Foutty, LLP,
2007 WL 2413026, *7 (S.D. Ind. Aug. 21, 2007)).
U.S. Steel admits that Cheeseborough was acting within the
scope of his employment at the time of each of the events Williams identified in her response, and Williams has failed to
allege otherwise.
Because Indiana does not recognize a claim for
negligent hiring and retention when the offending party was a
fellow employee acting within the scope of his employment, Williams has failed to raise a genuine issue of material fact.
Additionally, Williams has not shown that there was a threat of
bodily harm or that U.S. Steel had any reason to know of such a
threat.
Williams was never put in a position that threatened her
well-being.
For these reasons, Williams has failed to identify a
material question of fact that remains pending for the jury to
resolve and summary judgment is granted in favor of U.S. Steel on
these issues.
Finally, Williams claims she suffered from intentional infliction of emotional distress.
"Intentional infliction of emo-
tional distress is committed by 'one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional
distress to another[.]'"
Branham v. Celadon Trucking Services,
30
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
31
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 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. Stevenson, 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 N.E.2d 768, 775–76
32
(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).
Williams did not respond to U.S. Steel’s argument in support
of summary judgment on this issue.
The court assumes Williams is
relying on the same isolated incidents that she cited in support
of her claim for gender harassment.
By failing to respond,
Williams has not demonstrated that U.S. Steel’s conduct was so
extreme and outrageous as to cause emotional distress, nor has
she made any effort to establish the requisite intent.
In light
of these failures, U.S. Steel’s motion for summary judgment must
be granted on this issue.
Williams failed to show that U.S. Steel’s stated reason for
reassigning her to a non-line position was a pretext for gender
discrimination or that she was subject to a hostile environment
because of her gender.
Additionally, her failure to respond to
U.S. Steel’s motion for summary judgment on her state law claims
is fatal to her allegations of negligent hiring and retention and
intentional infliction of emotional distress.
33
_______________
Based on the foregoing, the Motion for Summary Judgment [DE
18] filed by the defendant, United States Steel Corporation, on
February 29, 2012, is GRANTED.
ENTERED this 6th day of August, 2012
s/ ANDREW P. RODOVICH
United States Magistrate Judge
34
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