Gibson et al v. Interstate Blood Bank et al
Filing
49
OPINION AND ORDER granting 45 Motion for Summary Judgment. No claims remain pending, Case DISMISSED. Signed by Judge Rudy Lozano on 7/7/14. (eml)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
MARY L. GIBSON, et al.,
Plaintiffs,
vs.
INTERSTATE BLOOD BANK
ADP-UCS BIO-BLOOD
COMPONENT, INC.,
Defendant.
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NO. 2:11-CV-412
OPINION AND ORDER
This matter is before the Court on Defendant’s Motion for
Summary Judgment, filed on January 3, 2014.
forth below, this motion is GRANTED.
For the reasons set
Because no claims remain
pending, this case is DISMISSED and the Clerk is ORDERED to enter
judgment in favor of Defendant and close this case.
BACKGROUND
On November 9, 2011, Plaintiffs, Mary L. Gibson and Nefertiti
Beacham, brought suit against their former employer, Defendant,
Interstate Blood Bank ADP-UCS Bio-Blood Component, Inc. (“BBC”).
Plaintiffs allege that they were terminated on the basis of their
race,
in
violation
of
Title
VII
of
the
Civil
Rights
Act.
Plaintiffs also allege they were terminated in retaliation for
-1-
filing workers’ compensation claims.
Further, Plaintiffs assert
that they were defamed by statements BBC made to the Gary Police
Department.
Gibson additionally brings a claim for intentional
infliction of emotional distress.
On January 3, 2014, BBC filed the instant motion for summary
judgment, arguing there are no genuine disputes and that it is
entitled
to
a
judgment
as
a
matter
of
law
on
every
claim.
Plaintiffs, represented by counsel, have failed to respond to the
instant motion.
DISCUSSION
Summary judgment standard
Summary judgment must be granted when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”
FED. R. CIV. P. 56(a).
A genuine
dispute of material fact exists when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
every
dispute
between
the
parties
makes
summary
Not
judgment
inappropriate; “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude
the entry of summary judgment.”
Id.
In determining whether
summary judgment is appropriate, the deciding court must construe
all facts in the light most favorable to the non-moving party and
-2-
draw all reasonable inferences in that party’s favor. Ogden v.
Atterholt, 606 F.3d 355, 358 (7th Cir. 2010).
“However, our favor
toward the nonmoving party does not extend to drawing inferences
that are supported by only speculation or conjecture.”
Fitzgerald
v. Santoro, 707 F.3d 725, 730 (7th Cir. 2013) (citing Harper v.
C.R. Eng., Inc., 687 F.3d 297, 306 (7th Cir. 2012)).
A party opposing a properly supported summary judgment motion
may not rely on allegations or denials in her own pleading, but
rather must “marshal and present the court with the evidence she
contends will prove her case.” Goodman v. Nat’l Sec. Agency, Inc.,
621 F.3d 651, 654 (7th Cir. 2010).
If the non-moving party fails
to establish the existence of an essential element on which he or
she bears the burden of proof at trial, summary judgment is proper.
Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006).
While a non-
moving party’s failure to respond to summary judgment does not
automatically result in judgment for the movant, a court may deem
the facts in the moving party’s statement of uncontested facts as
admitted to the extent the facts are supported by evidence in the
record.
Keeton v. Morningstar, Inc., 667 F.3d 877, 884 (7th Cir.
2012).
Facts
BBC is a subsidiary of The Interstate Companies and operates
a plasma center in Gary, Indiana. (Tab C, Hancock Aff. ¶ 1). The
-3-
plasma
center
receives
blood
plasma
from
individual
donors,
processes the plasma, and supplies it to the therapeutic and
diagnostic industries. Plaintiff Mary Gibson is African American
and was employed by BBC as a training coordinator at the Gary
center from November 2007 to April 7, 2011. (Tab A, Gibson Dep. pp.
11-12, 137-38). Plaintiff Nefertiti Beacham is African American and
was employed by BBC as a phlebotomist and plasma processor at the
Gary center from October 2008 to February 17, 2011. (Tab B, Beacham
Dep. pp. 11, 52, 102; Tab C, Hancock Aff. ¶ 30).
BBC’s Gary, Indiana plasma center consists of two adjacent
buildings separated by a parking lot: a donor center and an
administrative building with offices. (Tab A, Gibson Dep. p. 14).
As a plasma center, BBC must comply with rules and regulations
promulgated
by
the
State
of
Indiana,
the
Food
and
Drug
Administration, the Occupational Safety and Health Administration,
the
Plasma
Protein
Therapeutic
Association,
as
well
as
the
standards and regulations required by customers who purchase plasma
from BBC. (Tab C, Hancock Aff. ¶ 4). The contracts BBC enters into
with the customers who purchase plasma also give the customers the
right to audit BBC’s practices and procedures on a regular basis,
often yearly.
One consequence of a customer observing too many
violations during an audit is that the customer can refuse to
accept plasma from the plasma center. (Tab B, Beacham Dep. p. 101;
Tab C, Hancock Aff. ¶ 6).
-4-
In 2011, BBC employed approximately 34 employees in its Gary,
Indiana location. Of those 34 employees, 18 were black or African
American. Currently, BBC employs approximately 30 employees, 16 are
black or African American. (Tab C, Hancock Aff. ¶ 7).
Hancock
is
a
Caucasian
female
and
Regional
Manager
Jane
for
The
Interstate Companies. In this capacity she is responsible for the
Gary center. (Tab A, Gibson Dep. p. 42; Tab C, Hancock Aff. ¶ 2).
Hancock was responsible for the hiring of both Gibson and Beacham.
(Tab B, Beacham Dep. p. 13; Tab A, Gibson Dep. p. 12). Hancock was
the final decision maker for the termination of both Gibson and
Beacham. (Tab C, Hancock Aff. ¶¶ 28, 40).
During Beacham’s and
Gibson’s employment, Tammy Dunkerley was the Gary center manager
and she reported to Hancock. (Tab A, Gibson Dep. p. 43; Tab C,
Hancock Aff. ¶ 11).
Jane Hancock made the decision to hire Mary Gibson as a
training coordinator in November of 2007. (Tab A, Gibson Dep. pp.
11-12). The training coordinator is responsible for performing
and/or coordinating the training of plasma center personnel and
monitoring the effectiveness of that training. (Tab A, Gibson Dep.
pp. 38-39; Tab A, Gibson Dep. Ex. 1, Job Description).
The
training coordinator position was created in 2007 and Gibson was
the first training coordinator at the Gary center. Since it was a
new role, Hancock gave Gibson leeway while she adjusted to the
expectations of the role. (Tab C, Hancock Aff. ¶ 10).
-5-
Gibson’s
duties included but were not limited to training new employees at
the Gary center on safety, good manufacturing practices, which
included maintaining compliance with OSHA regulations, retraining
employees who were found to be out of compliance or who committed
errors and accidents, and training employees on BBC’s standard
operating procedures. (Tab A, Gibson Dep. pp. 24-30, 38-39; Tab A,
Gibson Dep. Ex. 1).
As part of her training duties, Gibson was
responsible for monitoring and reviewing the employee training
files. (Tab A, Gibson Dep. pp. 38-39; Tab A, Gibson Dep. Ex. 1).
These files, also referred to as training binders, are to contain
every audit and assessment that an employee has taken since the
beginning of their employment. (Tab A, Gibson Dep. pp. 56- 57).
These records show what employee trainings had been completed, by
whom, and who monitored the completion of the training. (Tab A,
Gibson Dep. p. 72). Training binders may be evaluated during
customer audits and audits by government agencies to establish that
BBC is in compliance with applicable regulations or customer
requirements. (Tab A, Gibson Dep. pp. 57-58). BBC also had certain
employees serve as training monitors to ensure the trainings and
retraining at the Gary center were performed when the training
coordinator was not available. (Tab A, Gibson Dep. p. 63; Tab C,
Hancock Aff. ¶ 12).
Hancock and Dunkerley oversaw Gibson’s
performance at the Gary center on a day-to-day basis, but Gibson’s
position ultimately reported to the Regional Training Manager who
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at times was not housed in the Gary center. (Tab C, Hancock Aff. ¶
13; Tab A, Gibson Dep. p. 47).
From the beginning of Gibson’s employment in November 2007
until
August
2009,
the
Regional
Training
Manager
was
Mary
McClendon. Shelly Heckert took over as the Regional Training
Manager in August 2009. (Tab C, Hancock Aff. ¶¶ 14, 21; Tab A,
Gibson Dep. pp. 45-48, 52-53, 105).
In October 2008, BBC placed
Gibson on a development plan. The development plan was issued
because Gibson was not progressing in her training role as quickly
as BBC expected she would. The plan required Gibson to study
processes, become more knowledgeable about standard operating
procedures, correct problems with training at the center, and
develop training monitors. (Tab C, Hancock Aff. ¶ 15; Ex. 1 to
Hancock Aff., Gibson Development Plan).
In April 2009, McClendon visited the Gary facility. McClendon
noted a variety of areas where Gibson needed improvement. This
included but was not limited to: including correct dates in the
training files, completing training records, bringing employees
with
overdue
sessions,
assessments
correctly
up
filing
to
date,
forms
planning
and
RAD
ensuring
training
completed
documentation is placed in the binders. She provided Gibson with
notes on changes to make to improve the management of her training
program and files. (Tab C, Hancock Aff. ¶ 16).
In June 2009, Gibson attended a training session in Memphis,
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Tennessee. Training coordinators from several centers attended the
training. (Tab A, Gibson Dep. p. 61).
The purpose of the training
was to teach the trainers how to work with employees of different
types and levels. (Tab C, Hancock Aff. ¶ 17). The training program
in Memphis also covered how to conduct trainings in large groups
and included simulations of how to conduct certain trainings. (Tab
A, Gibson Dep. p. 73-74).
The training was facilitated by the
Regulatory Affairs Director for Interstate Blood Bank, Ginger
Maine. (Tab A, Gibson Dep. p. 62).
In June 2009, after returning from the Memphis training,
Gibson called a meeting of the managers of the Gary center. This
included
Diana
Benevente,
Carlos
Peña,
Diana
Ruiz
and
Tammy
Dunkerley. (Tab A, Gibson Dep. p. 76-77). The meeting was intended
to be training on a new Regulatory Affairs Directive (“RAD”). At
the end of the training, Gibson told the management team she would
be scheduling another meeting and requested that the managers come
to the next meeting prepared to discuss both good and bad qualities
of the other members of the management team. (Tab A, Gibson Dep.
pp. 76-79). Gibson had not previously discussed having this second
meeting with Hancock. (Tab C, Hancock Aff. ¶ 19).
Shortly after the initial meeting with the managers about the
RAD, Hancock found a document in her printer stating Gibson’s plans
to meet again with the management team to discuss what Gibson
described
as
a
problem
of
“non-communication”
-8-
plaguing
the
managers. (Tab A, Gibson Dep. pp. 82-83). Several members of the
management
team
also
complained
to
Hancock
that
they
were
uncomfortable being asked by Gibson to criticize other members of
the management team. (Tab C, Hancock Aff. ¶ 19). Hancock discussed
the document she found in the printer and Gibson’s plan for this
meeting with Gibson, telling her that some of the managers were
concerned about being asked to give criticism about the other
managers. Hancock felt that Gibson raised her voice during the
meeting while telling Hancock she was not doing a good job of
supervising her staff.
(Tab C, Hancock Aff. ¶ 20). Gibson admits
that she may have told Hancock that some of the problems with the
management team were her fault and that Hancock left the building
after their discussion. (Tab A, Gibson Dep. pp. 85-86).
Heckert became the Regional Training Manager in August 2009
and Gibson
began reporting to her. Around October 2009, Heckert
and Hancock met with Gibson in person to discuss performance
expectations. In the meeting, Heckert requested that Gibson email
her daily with a list of her assignments/tasks for the day to make
sure employees were being trained properly. (Tab A, Gibson Dep. pp.
52-55). During that same meeting, Heckert requested that Gibson
revise the training binders because she believed they were being
kept improperly. (Tab A, Gibson Dep. p. 55).
In May 2010, Heckert issued a reprimand to Gibson for not
being effectively prepared to implement training on a new RAD. The
-9-
document Heckert issued to Gibson included steps Gibson was to take
to
improve
her
performance.
Gibson
signed
the
reprimand
and
acknowledged receipt. (Tab A, Gibson Dep. pp. 108-12; Tab A, Gibson
Dep. Ex. 2).
Also in 2010, Hancock and Heckert again met with
Gibson. Gibson is not sure when the meeting took place but believes
it
was
in
October
2010.
During
that
meeting,
issues
with
communication and attitude were discussed. Gibson believes the
meeting was called because Heckert felt Gibson did not care for her
and believed Gibson did not want to communicate with her. (Tab A,
Gibson Dep. pp. 46, 99-102, 106-07).
Heckert placed Gibson on a corrective action plan on December
1, 2010. Heckert and Hancock met with Gibson in person in Hancock’s
office to deliver the plan. The plan outlined eight areas of
significant deficiency in Gibson’s job performance that required
immediate improvement. These issues included: not properly listing
important dates on the Source Plasma Training Check Lists; not
timely completing assessments and audits; not properly referring to
assessments
and
audits
in
training
materials;
having
expired
documentation in the training binders; requesting staff to complete
training documentation required of the training coordinator, and
inconsistent inclusion of documentation in the training binders.
This action plan was delivered by Heckert. (Tab A, Gibson Dep. pp.
113, 116; Tab A, Gibson Dep. Ex. 3).
On January 22, 2011, Gibson began a leave of absence for a
-10-
work related injury.
She was out from January 22, 2011 through
March 8, 2011. (Tab A, Gibson Dep. pp. 107, 137).
In February 2011, while Gibson was out on leave, Tina Dillard
became the new Regional Quality Assurance Manager and Gibson’s
supervisor. (Tab C, Hancock Aff. ¶ 25; Tab D, Dillard Aff. ¶ 2)
Before taking on the new role, Dillard was the training coordinator
at another BBC facility in Hammond, Indiana. (Tab A, Gibson Dep. p.
140-141; Tab D, Dillard Aff. ¶ 1).
On March 24, 2011, as part of
her transition into her new role, the Corporate Quality Assurance
Department requested that Dillard audit various areas of the Gary
center’s training program and whether Gibson was meeting the
performance expectations set out in the December 1, 2010 corrective
action plan issued to Gibson. (Tab D, Dillard Aff. ¶ 5).
Dillard’s audit of the training materials at the Gary center
consisted of auditing the training binders for approximately 30
employees, checking the training calendar to ensure all trainings
had been performed when directed by corporate, reviewing the
Regulatory Affairs Directive (“RAD”) binder to ensure it was
complete and that training on all RADs had been performed when
indicated by corporate and were documented correctly, auditing all
standard operating procedures to ensure they were current, and
checking
all
forms
in
all
files
for
completeness-including
signatures and dates. In addition, she determined the status of the
items in Gibson’s corrective action plan. (Tab D, Dillard Aff. ¶¶
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6, 8, 9).
It took Dillard approximately one week to complete her
audit of the training materials at the Gary center. (Tab D, Dillard
Aff. ¶ 10).
materials,
Based on her audit of the Gary center training
Dillard
noted
multiple
errors
in
addition
to
the
training binders being out of compliance. These errors included but
were
not
limited
to
pages
missing
from
the
RAD
binders,
documentation indicating trainings on RADs were completed well
after the completion date given by corporate, missing training
documentation, incomplete training documents such as documents
missing dates and signatures, and some employees were found to be
missing trainings altogether that were required by corporate. (Tab
D, Dillard Aff. ¶ 11, 12).
Dillard considered the errors she
found in the training materials at the Gary center to be serious
and substantial. (Tab D, Dillard Aff. ¶ 13).
Dillard reported the
findings of her audit to Hancock. (Tab D, Dillard Aff. ¶ 14).
Based on the information from Dillard’s audit, Hancock decided to
terminate Gibson’s employment. (Tab C, Hancock Aff. ¶ 28). Hancock
and Dillard met with Gibson on April 7, 2011 and Hancock informed
Gibson that her employment was being terminated for poor job
performance. (Tab A, Gibson Dep. pp. 137-38). Gibson signed and
received a notice of termination during the April 7 termination
meeting. (Tab A, Gibson Dep. pp. 142-143; Tab A, Gibson Dep. Exs.
5-6).
Neferititi Beacham began working for BBC in October 2008 as a
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phlebotomist. She also performed the duties of a plasma processor,
as
needed.
(Tab
B,
Beacham
Dep.
pp.
11,
13-14,
19-20).
Phlebotomists are responsible for the plasmapheresis process, from
preparing the donor through collection, then disconnecting the
plasma unit and delivering the plasma for sampling. (Tab C, Hancock
Aff. ¶ 31). In the phlebotomist role, Beacham’s duties included
performing venipuncture (puncturing the donor’s vein to collect
plasma), monitoring for donor over bleeds (which occurs when a
phlebotomist takes more plasma from a donor than is allowed based
on the donor’s body mass), monitoring for donor infiltrations,
following all standard operating procedures (“SOP”), and monitoring
donors for adverse reactions. (Tab B, Beacham Dep. pp. 14, 24).
Plasma processors are responsible for collecting plasma samples and
verifying that the samples and plasma units are transferred to the
proper storage. (Tab C, Hancock Aff. ¶ 32). Beacham’s duties when
acting as a plasma processor included separating good sample
bottles from quarantine bottles and ensuring that the FDA and SOP
requirements were followed.
(Tab B, Beacham Dep. pp. 16-17)
Beacham received training on standard operating procedures at the
time of hire and was re-certified approximately every six months.
(Tab B, Beacham Dep. p. 16).
Beacham reported to the manager on
duty depending on the shift. (Tab B, Beacham Dep. p. 19).
Standard Operating Procedures (“SOPs”) are to be followed at
all times, with no exceptions.
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(Tab B, Beacham Dep. p. 23)
Employees are trained on the SOPs and the SOPs are housed in the
donor processing areas for employee’s reference. (Tab A, Gibson
Dep. p. 25).
In September 2010, Beacham reported slipping on
something left on the floor at work and was out of work for three
weeks. (Tab B, Beacham Dep. p. 236).
SOP 450 covers the proper procedure to use with venipuncture
site preparation.
Beacham was trained on this SOP and it was also
available to employees for review in the donor center. (Tab B,
Beacham Dep. pp. 99-100; Tab B, Beacham Dep. Ex. 8).
SOP 450
requires the employee to scrub the Iodine Gel Swabstick directly
over the venipuncture site for at least 30 seconds before allowing
the site to dry and performing the venipuncture:
6.1.3 Obtain a 10% Povidone-Iodine Gel Swabstick.
6.1.4 Hold the gel swabstick at an angle and begin
scrubbing vigorously in a circular motion over a one inch
area, directly over the venipuncture site. Continue this
scrubbing for at least 30 seconds.
6.1.5 After scrubbing for at least 30 seconds, and using
the same applicator, begin at the venipuncture site and
move gradually outward in concentric circles to form a
total prepped area measuring at least three inches in
diameter.
6.1.6 Discard the used swab.
6.1.7 Allow prepped site to dry for at least 30 seconds.
(Tab B, Beacham Dep. pp. 99, 100; Tab B, Beacham Dep. Ex. 8,
emphasis in original).
On February 10 and 11, 2011, BBC customer Baxter Healthcare
Corporation (“Baxter”) performed an audit at BBC’s Gary center.
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(Tab B, Beacham Dep. p. 103) Two Baxter representatives performed
the audit: Robin Kubota, Manger/Plasma Quality Assessment Gorup,
and Rita Nerby, Manager-Supplier Quality/Plasma Quality Assessment
Group. (Tab C, Hancock Aff. ¶¶ 33, 34).
Carlos Peña, at the time BBC’s Assistant Manager of the Gary
center, accompanied the Baxter auditors during the audit. (Tab E,
Peña Aff. ¶ 6). The Baxter auditors determined which BBC employees
they would observe during the audit. (Tab E, Peña Aff. ¶ 7).
One
BBC employee the Baxter auditors observed during their audit was
Beacham. At the time they observed Beacham she was attempting to
perform venipuncture site preparation on a donor. (Tab E, Peña Aff.
¶ 8, 9).
Peña was accompanying the Baxter auditor who observed
Beacham performing venipuncture site preparation. On Beacham’s
first attempt to prepare the site, the auditor informed Peña that
Beacham failed to scrub a one inch diameter site for a full 30
seconds. Peña, in turn, told Beacham to try again and reminded her
she needed to scrub the site for a full 30 seconds. Beacham failed
to scrub the site for a full 30 seconds on three additional
attempts. Beacham scrubbed the site for the full 30 seconds on her
fifth attempt after Peña walked Beacham through the proper scrub
process. (Tab E, Peña Aff. ¶ 12).
After Beacham failed to scrub
the site several times for the full 30 seconds, the Baxter auditor
asked Peña if Beacham was a new employee, if she had been trained
on proper venipuncture site preparation, and if she should know
-15-
better. Peña responded that Beacham had received venipuncture site
preparation training and had been employed long enough to know
better. (Tab E, Peña Aff. ¶ 13).
At the end of their audit, the
Baxter auditors met with the Gary center management, including
Hancock and Peña, to provide the preliminary results of their
audit.
The
Baxter
auditors
reported
that
Baxter
considered
Beacham’s failure to follow standard operating procedures for
venipuncture site preparation to be a major violation of Baxter’s
standards and the regulatory requirements BBC was being audited
against. The Baxter auditors also informed Gary center management
that BBC would have 30 days to correct any quality standard not
being met and would be required to report the corrective actions
BBC took to Baxter. (Tab C, Hancock Aff. ¶¶ 37-39).
The Baxter auditors prepared a preliminary assessment report
and gave that to Hancock at the conclusion of their audit. The
preliminary assessment report stated the following as to Baxter’s
findings
regarding
Beacham’s
failure
to
meet
standards
for
venipuncture site preparation:
Multiple instances in which employee NDB [Nefertiti D.
Beacham] did not use the proper technique when performing
venipuncture site preparation on donor with bleed number
GP160406. During the first four preparation attempts
employee did not scrub a once inch diameter for 30
seconds. The scrub times were 10 seconds, 15 seconds, 15
seconds, and 20 seconds.
Note: After receiving
instruction from assistant manager employee correctly
performed site preparation on fifth attempt.
(Tab C, Hancock Aff. ¶ 38; Tab B, Beacham Dep. pp. 100, 101 and Tab
-16-
B, Beacham Dep. Ex. 9).
Based on Baxter’s audit results regarding Beacham, Hancock
made the decision to terminate her employment. (Tab C, Hancock Aff.
¶¶ 41, 42). Dianna Benavente, Assistant Manager, met with Beacham
on February 17, 2011 to inform Beacham that her employment was
terminated. During the meeting, Benavente provided Beacham with a
Notice of Termination. The Notice stated that “Termination is due
to: Failure to perform proper sterilization/scrub on donor during
an audit.” (Tab B, Beacham Dep. pp. 101-02, 120-30; Tab B, Beacham
Dep. Ex. 13).
According to Beacham, Benavente told Beacham that
Baxter requested that BBC terminate Beacham’s employment. (Tab B,
Beacham Dep. pp. 101-02).
Hancock believed that terminating Beacham was the appropriate
response to the repeated violation of the SOP during the audit.
(Tab C, Hancock Aff. ¶ 42).
Benavente allowed Beacham to contest
the termination decision in writing on the back of the Notice of
Termination. In her written response contesting the termination,
Beacham did not claim that the decision was discriminatory. Beacham
did state, “I made a mistake on an audit” and that “I performed a
scrub wrong 3 times and got fired.” (Tab B, Beacham Dep. pp. 12931; Tab B, Beacham Dep. Ex. 14).
Beacham now claims that she did
not make a mistake and that she did each scrub for a full 30
seconds. (Tab B, Beacham Dep. p. 105). But Beacham also recognizes
as she testified during her deposition that “the customer is always
-17-
right” and that BBC could not dispute Baxter’s findings: “The
auditor felt that I did a scrub violation wrong. She felt that it
wasn’t 30 seconds. I felt that it was 30 seconds, but by she being
the auditor and us buying plasma, by BBC buying plasma for them
[Baxter], I cannot argue with her.” (Tab B, Beacham Dep. pp. 105,
136-37).
As evidence of discrimination, Beacham points to four other
employees she believes committed more than one scrub violation but
were not terminated: Kesha Askew, Francis Bonner, Tina Garmon, and
Jennifer Orszulak. (Tab B, Beacham Dep. pp. 165-67, 203).
Askew,
Bonner, and Garmon are African American. Beacham testified that
Askew and Bonner could make mistakes but were not terminated
because they were “favored” by Dianna Benavente and the other
managers. Beacham believes she was not favored by Benavente because
she told Benavente that Benavente was not doing her job and told
another manager, Dianna Ruiz, that she spent too much time on
Facebook. Beacham provided no explanation for why she believed
Garmon was treated more favorably. (Tab B, Beacham Dep. pp. 164-67,
203). Orszulak is white and was employed by BBC as a phlebotomist.
She committed a scrub violation during an FDA inspection of BBC’s
Gary center on April 25, 2011. Orszulak was not immediately
terminated for this scrub violation. (Tab B, Beacham Dep. pp. 18689).
After her termination, Beacham launched a complaint against
BBC’s Gary center with the FDA. Beacham does not remember the day
-18-
she complained to the FDA, but she requested a copy of the FDA’s
report through the Freedom of Information Act and the report
indicates Beacham made her complaint on April 11, 2011. (Tab B,
Beacham Dep. pp. 185-89;
Tab B, Beacham Dep. Ex. 18).
In response
to Beacham’s complaint, the FDA inspected BBC’s Gary center on
Spril 25 through 28, 2011. (Tab B, Beacham Dep. Ex. 18 at 2).
On April 25, the FDA inspector observed an employee scrub the
venipuncture site on a donor for 25 seconds instead of the required
30 seconds. This employee was Orszulak. BBC took corrective action
while the FDA was still on site for the inspection. Specifically,
BBC retrained Orszulak on proper site preparation by reviewing SOP
450, required Orszulak to perform 25 arm scrubs under direct
supervision, completed an Errors/Accident Report for the incident,
and quarantined the plasma unit. (Tab B, Beacham Dep. p. 189; Tab
B, Beacham Dep. Ex. 18 at 2, 8).
On April 26, 2011, Gibson emailed Dunkerly a one line email
with the subject line: PARTY and the full content read “YOU GUYS
HAVING A PARTY TODAY.” Dunkerly shared the email with Hancock. (Tab
C, Hancock Aff. ¶ 45, Ex. 5 to Hancock Aff., Gibson Email).
BBC
did not terminate Orszulak based on the April 25 scrub violation
because Orszulak was a relatively new employee (hired August 11,
2010), she failed to scrub long enough only once, not several times
in a row, and the FDA did not infer that BBC needed to terminate
her for the violation. (Tab C, Hancock Aff. ¶ 48).
-19-
On May 4, 2011,
BBC
terminated
Orszulak’s
employment
after
she
was
observed
performing four short scrubs in a row – one 15 seconds, one 21
seconds, one 25 seconds, and one 25 seconds. (Tab C, Hancock Aff.
¶ 49; Ex. 6 to Hancock Aff., Orszulack Termination Notice).
On April 29, 2011, Hancock discovered that her personnel file
was missing from file cabinets in the administrative building at
the
Gary
center.
(Tab
C,
Hancock
Aff.
¶
50).
Given
the
confidential personnel and financial information contained in the
file, Hancock notified the Gary police department who completed a
police report. (Tab C, Hancock Aff. ¶ 51; Exhibit 7 to Hancock
Aff., Police Report).
The police officers asked Hancock for the
names of any employees terminated within the last few months who
had access to the office. BBC gave the names of those employees to
the police. The names of employees who had been terminated BBC gave
to the police included Beacham and Gibson and the police listed
their names in the police report. (Tab C, Hancock Aff. ¶ 52; Ex. 7
to Hancock Aff., Police Report).
Title VII - Race Discrimination Claims
Plaintiffs each allege that she was discriminated against on
the basis of her race, in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. §2000e-5.
ways a race discrimination claim can be proven.
There are two
There is a direct
and an indirect method. Adams v. Wal-Mart Stores, Inc., 324 F.3d
-20-
935, 938 (7th Cir. 2003).
In an abundance of caution, this Court
will examine whether Plaintiffs can proceed under either method.
Direct Method
Under the direct method a plaintiff must “show either through
direct or circumstantial evidence that the employer's decision to
take the adverse job action was motivated by an impermissible
purpose.” Id. at 938-939. Direct evidence consists of either an
outright admission by the decision maker that the challenged action
was undertaken because of the [plaintiff’s race] or a convincing
mosaic of circumstantial evidence . . . that point[s] directly to
a discriminatory reason for the employer’s action. Dass v. Chicago
Bd. of Educ., 675 F.3d 1060, 1071 (7th Cir. 2012)(citations and
quotations omitted).
Gill does not cite to any admissions of
discrimination, and relies, instead, on circumstantial evidence
form which she alleges a trier of fact could reasonably infer that
LaPorte discriminated against her because of her race.
To create a convincing mosaic, a plaintiff can rely on “three
different
types
of
circumstantial
evidence
of
intentional
discrimination: (1) suspicious timing, ambiguous oral or written
statements, behavior toward or comments directed at other employees
in the protected group, and other bits and pieces from which an
inference of discriminatory intent might be drawn; (2) evidence
that similarly situated employees outside the protected class
-21-
received systematically better treatment; and (3) evidence that the
plaintiff was qualified for the job in question but was passed over
in favor of a person outside the protected class and that the
employer’s stated reason was a pretext for discrimination.”
Id.
(citations and footnotes omitted).
Ultimately, the circumstantial
evidence
“must
a
plaintiff
presents
point
directly
to
a
discriminatory reason for the employer’s action” and be “directly
related to the employment decision.”
Adams v. Wal-Mart Stores,
Inc., 324 F.3d 935, 939 (7th Cir. 2003); Venturelli v. ARC Cmty.
Services, Inc., 350 F.3d 592, 602 (7th Cir. 2003).
no evidence under any of the three categories.
Here, there is
Simply put, there
is no direct evidence of race discrimination.
Indirect Method
When using the indirect method a plaintiff must first make a
prima facie case of discrimination.
Green, 411 U.S. 792, 802 (1973).
McDonnell Douglas Corp. v.
To do this, the plaintiff must
show that 1) he belongs to a protected class 2) he was meeting his
employer's legitimate performance expectations 3) he suffered an
adverse employment action and 4) other similarly situated employees
who were not members of the protected class were treated more
favorably.
Fane v. Locke Reynolds, LLP, 480 F.3d 534, 538 (7th
Cir. 2007).
If the plaintiff is able to make out a prima facie case the
-22-
burden
then
shifts
nondiscriminatory
to
the
reason
defendant
for
Douglas, 411 U.S. 792 at 802.
then
the
plaintiff
defendant’s
is
the
adverse
make
a
legitimate,
action.
McDonnell
If the defendant meets this burden
afforded
nondiscriminatory
to
a
chance
reason
to
is
show
mere
that
pretext
the
for
discrimination. Id. at 804. To show pretext the plaintiff must
“identify such weaknesses, implausibilities, inconsistencies, or
contradictions in the purported reasons that a jury could find them
unworthy of credence.” Fane, 480 F.3d 534 at 541.
While the
burden does shift between the plaintiff and the defendant, the
ultimate burden of persuasion is always with the plaintiff. Id. at
538.
Neither Beacham nor Gibson can make out a prima facie case of
discrimination because neither can show that she was meeting her
employer's
legitimate
performance
expectations.
As
training
coordinator, Gibson had many responsibilities including training
new employees on safety and good practices, maintaining compliance
with
OSHA
regulations,
retraining
fact,
in
December
standard
of
The undisputed facts show that Gibson failed in many
In
on
out
procedures.
duties.
employees
were
and
these
new
who
compliance,
of
training
employees
2010,
BBC
operating
issued
a
corrective action plan to Gibson that detailed her several areas of
deficiency.
When a new Regional Quality Assurance Manager took
over responsibility of the Gary facility in March 2011, she
-23-
assessed Gibson’s filed and progress of the corrective action plan.
This week-long assessment noted all of Gibson’s deficiencies in the
documents and training materials.
When Hancock learned of the
deficiencies, she made the decision to terminate Gibson.
As to Beacham, one of BBC’s customers, Baxter Healthcare
Corporation, witnessed Beacham incorrectly perform a venipuncture
site scrub four times during an audit.
Beacham acknowledged that
she was well aware of and had ready access to the standard
operating procedure that instructed employees exactly how they must
properly prepare a venipuncture site.
Because Gibson and Beacham failed to meet their employer’s
legitimate performance expectations, they have failed to create a
prima facie case of discrimination.
Nevertheless, even if Gibson
or Beacham could establish a prima facie case, their claims would
still fail because they cannot show that the reasons given for
their terminations were a lie to cover up any racial animus.
As
a
result,
BBC
is
entitled
to
summary
judgment
on
Plaintiffs’ race discrimination claims.
Defamation
As part of the Gary Police Department’s investigation of a
missing personnel file at BBC, officers asked Hancock for the names
of any employees terminated within the last few months who had
access to the office.
BBC gave the names of those employees to
-24-
police, including Beacham and Gibson, who the police then listed in
the police report. Gibson and Beacham argue that BBC’s statements
to police constitute actionable defamation.
Under Indiana law, the elements of a defamation claim are:
“(1) a communication with defamatory imputation, (2) malice, (3)
publication, and (4) damages.”
Trail v. Boys and Girls Club of
Northwest Indiana, 811 N.E.2d 830, 841 (Ind. Ct. App. 2004).
“A
statement is defamatory if it tends to harm the reputation of
another so as to lower him in the estimation of the community or to
deter third persons from associating or dealing with him.”
Id.
(quoting Gatto v. St. Richard Sch., Inc., 774 N.E.2d 914, 923 (Ind.
Ct. App. 2002)).
The basis of Plaintiffs’ claim are statements in the police
report in Case No. 11-30996.
The report states that a file
containing information regarding Jane Hancock was taken from her
office and identifies three former employees who had access to
Hancock’s office. There are no statements identified in the report
that are false.
Nor is there any facts suggesting that BBC acted
with malice in reporting those facts to the Gary Police.
For both
of those reasons, there is no claim for defamation.
Retaliation
Beacham and Gibson also allege that BBC terminated them
because they filed workers’ compensation claims. As BBC points out,
-25-
Indiana law recognizes a narrow exception to the state’s general
rule of at-will employment. This public policy exception, sometimes
referred to as a Frampton case, recognizes a cause of action for
termination in retaliation for filing a workers’ compensation
claim. Stivers v. Stevens, 581 N.E.2d 1253 (Ind. Ct. App. 1991)
(citing Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297
N.E.2d 425 (1973)). To survive a motion for summary judgment on a
Frampton case, plaintiffs must produce direct or indirect evidence
supporting the necessary inference of causation between filing a
worker's compensation claim and termination. Purdy v. Wright Tree
Serv., 835 N.E.2d 209, 212-216 (Ind. Ct. App. 2005) (affirming
summary judgment for the employer on retaliatory discharge claim
where
employer
terminated
employee
in
accordance
with
its
policies).
Beacham and Gibson have put forth no facts or evidence to
support their retaliation claims. All that is on the record are the
dates they each reported their respective work injury and the dates
their employment terminated. BBC terminated Beacham approximately
6 months after reporting her work related injury. BBC terminated
Gibson approximately 2 ½ months after reporting her work related
injury. But “timing evidence is rarely sufficient in and of itself
to create a jury issue on causation.” Hudson v. Wal-Mart Stores,
Inc., 412 F.3d 781, 787 (7th Cir. Ind. 2005).
Moreover, BBC’s stated reasons for each of their terminations
-26-
are strong and credible. BBC terminated Beacham in response to a
customer audit during which Beacham repeatedly failed to properly
prepare a venipuncture site. BBC terminated Gibson based on well
documented,
long-standing
performance
deficiencies,
which
culminated in the issuance of a corrective action plan before she
reported a workplace injury. See Hudson, 412 F.3d at 787 (affirming
summary judgment for employer on workers’ compensation retaliation
claim where employee was fired a few days after inquiring about his
workers’ compensation rights because the employer’s stated reason
for the termination were strong and credible).
Accordingly,
Plaintiffs’ Frampton claims fail.
Intentional Infliction of Emotional Distress
Intentional infliction of emotional distress under Indiana law
is the intent to harm someone emotionally and requires that the
defendant: (1) engage in extreme and outrageous conduct; (2) which
intentionally or recklessly; (3) causes; (4) severe emotional
distress to another.
Curry v. Whitaker, 943 N.E.2d 354, 361 (Ind.
Ct. App. 2011) (affirming summary judgment for defendants against
intentional infliction claim). The requirements to prove this tort
are rigorous and it is found only when the conduct “exceeds all
bounds typically tolerated by a decent society and causes mental
distress of a very serious kind.” Curry, 943 N.E.2d at 361.
As BBC points out, to support her claim, Gibson alleges in her
-27-
complaint only that manager Diana Ruiz “would go behind [Gibson’s]
back”
to
undermine
her
authority
and
that
when
she
sought
clarification from other managers, they would “verbally attack” her
in order to ridicule her in front of other members of the staff.
(Complaint, Count IV, ¶ 13.B.1).
Gibson claims this caused her mental distress because her
authority was undermined. Gibson does not allege that her mental
distress was severe. (Complaint, Count IV, ¶ 13.C) Even if this
behavior is taken as true, this is not the “atrocious” and “utterly
intolerable”
conduct
required
to
maintain
this
tort
action.
Powdertech, Inc. v. Joganic, 776 N.E.2d 1251, 1262 (Ind. Ct. App.
2002) (reversing trial court’s denial of employer’s motion for
summary judgment on intentional infliction claim because act of
firing pursuant to a disciplinary policy is not extreme and
outrageous
employee
conduct
could
and
not
be
the
employer’s
regarded
as
actions
in
atrocious
terminating
or
utterly
intolerable). Not only are the allegations deficient, but there is
no evidence in the record to support an IIED claim.
Gibson also alleges that the behavior of these managers (of
which she never complained to local or corporate management) was
the cause of her inability to effectively perform her duties, which
was ultimately the reason for her termination. To the extent Gibson
alleges that her termination was part of the conduct which caused
her intentional infliction claim, that does nothing to help her
-28-
claim. Gibson was terminated when her performance did not improve
despite repeated instances of coaching and being placed on a
corrective action plan. Terminating an employee for good reason
does not constitute extreme and outrageous conduct. Powdertech, 776
N.E.2d at 1262. Thus, the IIED claim fails.
CONCLUSION
For the reasons set forth above, the motion for summary
judgment is GRANTED.
Because no claims remain pending, this case
is DISMISSED and the Clerk is ORDERED to enter judgment in favor of
Defendant and close this case.
DATED:
July 7, 2014
/s/RUDY LOZANO, Judge
United States District Court
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