Alderson v. Ferrellgas Inc
Filing
77
OPINION AND ORDER GRANTING 62 MOTION for Summary Judgment by Defendant Ferrellgas Inc; DENYING 60 MOTION for Relief Due to Destruction of Evidence by Defendant Ferrellgas Inc; DENYING 73 MOTION to Deem Portions of Defendant's Reply Brief i n Support of Motion for Summary Judgment Waived or Stricken or, in the Alternative, Motion for Leave to File Surreply re 72 Reply to Response to Motion by Plaintiff Jeanette Alderson. Clerk DIRECTED to enter judgment in favor of Defendant Ferrellgas Inc and against Plaintiff Jeanette Alderson. Signed by Judge Theresa L Springmann on 8/31/15. (cer)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
JEANETTE ALDERSON,
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Plaintiff,
v.
FERRELLGAS, INC.,
Defendant.
CAUSE NO.: 3:12-CV-305-TLS
OPINION AND ORDER
According to Plaintiff Jeanette Alderson’s Complaint, her former employer, Ferrellgas,
Inc., discriminated and retaliated against her in violation of the Americans with Disabilities Act
(ADA), retaliated against her in violation of Title VII, subjected her to a hostile work
environment based on her gender, and failed to pay her overtime in violation of the Fair Labor
Standards Act (FLSA) and Indiana’s civil conversion statute. The Defendant has moved for
summary judgment [ECF No. 62] on all the claims alleged by the Plaintiff. Also pending is the
Defendant’s Motion for Relief Due to Destruction of Evidence [ECF No. 60], and the Plaintiff’s
Motion to Deem Portions of Defendant’s Reply Brief in Support of Motion for Summary
Judgment Waived or Stricken, or, in the Alternative, Motion for Leave to File Surreply [ECF No.
73]. Each of these motions is accompanied by a brief in support, a response brief, and a reply
brief. Additionally, there are also more than 600 pages of exhibits.
The Court, having considered the parties’ briefs in their entirety, concludes that summary
judgment is warranted in favor of the Defendant. In doing so, the Court finds it unnecessary to
strike any briefs (as requested by the Plaintiff), to strike any claims (as requested by the
Defendant), to consider arguments waived (as requested by the Plaintiff), or to sanction the
Plaintiff (as requested by the Defendant).
STATEMENT OF FACTS
The facts are largely undisputed, yet the parties arrive at drastically divergent
interpretations of the events that precipitated the Plaintiff’s termination of employment at
Ferrellgas. The Defendant maintains that the Plaintiff lost her customer service job after she
refused to acknowledge some of her basic job duties and engaged in unprofessional and
insubordinate conduct. According to the Plaintiff, it was because she participated in statutorily
protected activity that the Defendant removed significant duties from her, gave her a written
warning, and terminated her employment.
A.
Customer Service Specialist Position
The Defendant sells propane to residential, commercial, and agricultural customers. The
Plaintiff began her employment with the Defendant in May 2010 as a part-time Customer
Service Specialist (CSS). Before the Defendant hired the Plaintiff, she had her leg amputated
slightly below her knee. She wears a prosthetic leg. When she was hired, the Plaintiff did not
provide the Defendant with any documentation identifying any restrictions on her work abilities,
and did not identify any disability or suggest the need for any accommodation. The Plaintiff
began training at the Plymouth Service Center in Plymouth, Indiana. Four other offices, referred
to as Service Units, were also part of the Plymouth Service Center. All except one Service Unit
was staffed by a CSS. In August 2010, the Plaintiff was transferred to the Francesville Service
Unit, where she was the only office employee. The Plaintiff typically worked alone and served as
the main contact for customers, both by phone and in person, while drivers made deliveries. The
CSS position also provides general administrative support, which means that additional
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responsibilities are assigned as needed.
Greg Wetters was the General Manager over the Plymouth Service Center. He reported to
Rick O’Connor, the Regional Vice President. Wetters typically worked in the Plymouth office.
In November 2010, Wetters assigned the generalized accounts payable tasks to the Plaintiff after
receiving her input about time management. Such tasks entail paying bills or paying for an item,
keeping receipts, and preparing a spreadsheet reflecting these purchases for submission to
Wetters. Wetters estimates that the accounts payable tasks take between 8 and 15 hours per
month. In connection with these duties, the Plaintiff received a company-issued credit card
called a P-Card. The card allowed the employee to make payments or purchases.
On June 3, 2011, Wetters submitted a request for a P-Card for Twila Eenigenburg, the
Lead CSS. Wetters did so because he had concluded that someone other than the Plaintiff should
be responsible for accounts payable. On May 12, 2011, the Defendant’s corporate accounts
payable department had to follow up with Wetters because the Plaintiff had sent in an invoice
without Wetters’s signature of approval. Additionally, the Plaintiff had become upset to the point
of having to leave work early on one occasion. Then, on June 3, she called Wetters three times in
rapid succession when she was dealing with a vendor, and then yelled at him when he answered.
Wetters did not immediately reassign the accounts payable responsibilities, but informed
the Plaintiff and another CSS that cross-training would occur. On June 10, 2011, the Plaintiff
submitted a statement to corporate accounts payable that was missing a receipt, which had to be
corrected. On July 13, 2011, corporate accounts payable had to contact the Plaintiff about two
invoices that Wetters had not approved before she submitted them. Eventually, the AP duties
were transferred to Eenigenburg.
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B.
Participation in the Labor Day Parade
The Defendant was a major participant at the Blueberry Festival held in Plymouth,
Indiana, over Labor Day weekend. It was the Defendant’s biggest event of the year. As part of
the Festival, the Defendant sponsored a balloon glow and its employees would participate in a
parade. Wetters considered the company’s participation a valuable way to promote itself in the
community and as a team-building event for the Ferrellgas employees.
In preparation for the event, one of the CSS’s, Angela Haines, inquired by email about
shirt sizes for employees and any children that would be participating in the parade. The Plaintiff
responded, “I probably won’t be going this year.” (Email (July 6, 2011), ECF No. 63-35.) Haines
replied that she was told the parade was mandatory, and that the summer cookout was after the
parade. Haines then followed up with an email to confirm that the parade was Monday,
September 5, and that Ed Read, the Operations Manager, said it was mandatory. Alderson wrote:
“Well, I didn’t know what day it was even on[.] That’s fine. Is it a Saturday & is it something we
are getting paid for if we need to be at the parade. I don’t usually go to parades of any kind
because of the crowds, it’s hard on my leg, so that has to be something that’s considered.” (Id.)
Haines wrote: “No, it[’]s on Monday. You can always ride in a truck with someone, then
afterward the plan is to have a luncheon and play games and stuff at the office.” (Id.) The
Plaintiff responded that she did not “do well walking or standing in crowds where it’s easy to
lose balance or get knocked down.” (Id.) Haines confirmed that the festival drew a large number
of people, but assured the Plaintiff that “you wouldn’t be expected to walk. You could ride in the
truck.” She added, “I think they just want all of us to be together and this is the perfect way and
like I said a get together afterwards.” Haines assumed they would get paid, but was not sure. She
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relayed that Wetters wanted the employees to be proud of their company and represent it, and
again reiterated that the Plaintiff could ride and would not be expected to walk. The Plaintiff
responded that she “just realized it was labor day.” She indicated that “it’s not going to go well.
My husband is already over protect[ive] when it comes to crowds and we usually go out to the
camp ground that weekend with his best friend and his wife.” (Id.) She indicated that she would
have to talk to Wetters about it. Haines responded that she would not put the Plaintiff on a list for
a shirt until she knew for sure if she was coming. Haines extended the invitation for the company
event to the Plaintiff’s husband. In the Plaintiff’s final response to Haines, she indicated she
would talk to Wetters, but was “already stressing about even telling Rodney because of course
the crowd thing just gets him worried and then the fact that’s [sic] its Labor day weekend, a
holiday we already have off from the company.” (Id.)
On July 18, the Plaintiff emailed Wetters. She wrote that she “heard that we were all
required to be in the parade on Labor Day.” (Email (July 18, 2011), ECF No. 63-16.) She
advised that if she was supposed to attend, she would have to drive about three hours from where
she was staying with her husband and friends. She explained, “We have been doing this for the
last 20 years or so. Then I will have to drive back that way right after wards for the annual BBQ
at the lake we have with whatever of our kids that come on the day. Rodney would not come
with since this is a planned holiday weekend that he looks forward to.” (Id.) The Plaintiff
requested that Wetters let her know what was happening that day so she could arrange her
schedule and let her husband know what to expect. In response, Wetters emphasized the team
building aspect of the event and the opportunity for families to spend time together. He said that
the Blueberry Festival Parade was an annual event, and that he needed people who “want to be
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there and be apart of a team.” He noted that he had repeatedly stressed that it was the single
biggest event of the year, and encouraged the Plaintiff to look at it from a different
perspective—as a team building opportunity. He wrote, “I understand your need to spend time
with our family and I will not stop you from going camping on this weekend, but I also know
you are having some issues with why the team doesn’t listen to me and why don’t they use me
more in this ro[le].” (Id.) He encouraged her to find reasons to be a part of “this huge positive
event” and stated that her negative response was not helping him “foster a positive event out of
this” with other employees. (Id.) Wetters concluded,
I would say if you do not choose to participate fine but do not expect your peers
and me to take that response as a positive and then how can we say everyone
needs to come to this event except Jenni. I hope you and your family can find a
positive in this event and find a way to work it into your plans. I am so excited
about this event and love spending time with people I don’t know and having
them see another side of me also. We will talk in the future. Thank you for all you
do.
(Id.)1 The Plaintiff’s July 19 response follows:
Greg,
First of all, I do completely understand why you would want everyone there and
what you want to build with this. I work hard to try to build up [Ferrellgas] on my
part everyday. I am not sure what you mean by the rest of your email about
everyone I have talked to, negative responses, etc . . . . I spoke with Twila about
her perspective on this and Angel when she asked for my t-shirt size and with
both of those conversations, I just expressed my concern with the fact that it is a 3
day holiday that we make plans for with our family. Also don’t understand what
you mean by “The team doesn’t listen to me” I work well with everyone here but
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Events that transpired after this email exchange show that, throughout the remainder of her
employment, the Plaintiff took particular offense to Wetters’s comments about how her decision not to
participate in the Blueberry Festival would be viewed. For example, she wanted to know how the
Defendant was dealing with Wetters’s statement “that me not doing certain things would make me be
looked upon differently.” (8-10-11 Email (Aug. 10, 2011), ECF No. 63-11.) On August 11, 2011, she
expressed her hope that Wetters would be reprimanded for writing that he would look at her differently if
she did not attend the parade. (Email (Aug. 11, 2011), ECF No. 63-11.)
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at the same time I am not trying to win a popularity contest and am upset that how
everyone feels about me, rather than the job I do would come into play with my
daily work or all of a sudden being looked at negatively from them or you if I was
not at a parade or event on a weekend we look forward to every year as a family.
(Id.) The email continued, and for the first time, the Plaintiff mentioned a concern about her
physical limitations:
Do you ever wonder why we haven’t been to some events like this. I have trouble
navigating through large crowds with my leg. I won’t be able to walk the parade
that is a given. Anytime I do tackle a place where there may be crowds, I have a
handicap pass and have privileges that come along with that. No lines, use my
wheelchair, etc.
If I am expected to attend to earn respect from you or everyone else then I will
come to the parade. My husband will not come because as I said, he looks
forward to the weekend at the cabin and I respect him enough to know he works
hard everyday and looks forward to his time off when it’s a holiday from work. I
am truly upset by some of the context of the email and have dedicated myself to
always doing what is needed to help out since I have been employed here.
(Id.)
Around this same time, the Regional Vice President, Rick O’Connor, visited the
Francesville office. The Plaintiff made no complaints, but O’Connor indicated to the Plaintiff
that she looked kind of stressed, inquired whether she was alright, and told her to let him know if
she needed anything. Two days later, the Plaintiff emailed O’Connor about concerns “over the
last month or so.” (Email (July 21, 2011), ECF No. 63-14.) She indicated that her husband
advised her to file a complaint with the labor board, but that she “did not want to do that because
I truly enjoy my job and am very good and organized at what I do.” (Id.) She continued,
The fact is I am disabled and am limited to any duties out side of office type
work. Several things have come up that all of a sudden I’m expected to do and
that could cause me some difficulty. I need to know if me showing concern about
this and choosing not to is going to be a big enough deal that I need to look for
other employment. I am already concerned just sending you this about whether a
reason will come up to have me replaced anyway or not. I can go into details
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further about field type work and how it was presented if you like. . . . My
administrative skills is what I was hired for and due to my limitations is the only
type of work I ever apply for. I’m not sure where to go from here but I am upset
about the issues.
(Id.) O’Connor responded that he would be “more than happy to look into any concerns you may
have.” (Id.) The Plaintiff told O’Connor that, when he had time, she would “go further into the
conversations over the last month and emails” and expressed that she was “limited and do have
a family to consider.” O’Connor then inquired what the Plaintiff was “being asked to do.” (Id.)
The Plaintiff responded:
There are a few things, To spend the day out in the field to watch tank sets,
deliveries, service repairs, etc. . . . Walk in the parade on Labor day. It’s been
hinted that door to door sales leads are wanted. Which if I didn’t have to worry
about uneven ground, getting in and out of trucks with that height, I can maybe
understand doing these things, even as an office CSS, but I do have to worry
about this everyday. I have stitches now in my stump due to a fall. It’s part of
being an amputee. Walking and heat do not do well with the prosthetic as my
amputation was not an easy one, there is no way I can spend the day at an event
like this, that has been presented as mandatory. It’s a risk for me to do something
that would cause another surgery on this leg, I have issues when it comes to meds
used for surgeries. It’s not just my physical limitations that is my concern, it’s
what was said and the implication of what would be if I do not participate with
the items listed above.
(Id.)
After the Plaintiff emailed O’Connor with her concerns, he contacted Bob Roper, the
Regional Human Resources specialist. Roper contacted the Plaintiff and told her that she was not
required to perform the activities she expressed concern about. O’Connor also informed Wetters
that the Plaintiff had contacted him and that O’Connor was working with the HR department.
The Plaintiff was not required to perform any of the tasks that she complained about.
With respect to the parade, Wetters distributed a written note to employees on July 27 that
described the Defendant’s participation in the Blueberry Festival, including the parade. He
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indicated that employees could walk and pass out candy or ride on the cylinder truck and wave.
He encouraged everyone to attend and to bring family, and explained employees would be paid
for three hours. Wetters stated that if anyone was not able to attend, they should talk to him or
Ed Read.
C.
The Defendant’s Follow-Up Attempts to Facilitate Meeting with the Plaintiff
Based on her email communications, the Defendant attempted to set up a time for
O’Connor and Roper to talk with the Plaintiff about how to move forward, and to discuss her
basic job duties and any accommodations she might need. O’Connor and Roper also asked
Wetters and the Plaintiff’s direct supervisor, Twila Eenigenburg, to attend. When she was hired,
the Plaintiff signed a CSS job description and a document that set forth the essential functions
for propane-related positions. The basic functions for all positions included certain field tasks.
The Defendant intended to discuss these documents and then create a non-propane related
positions document. According to the Plaintiff, none of the field tasks were discussed with her
during hiring interview, and she was hired to perform office work only.
The Plaintiff continually refused to participate in a meeting to discuss her
accommodation request. She wanted a person who specialized “in the rights of disabilities in the
workforce” to accompany her and represent her interests at the meeting. (7-26-11 email, ECF
No. 63-12.) She expressed concern with the “direction I feel this issue is being taken in.” (Id.)
During this same time, Wetters and Roper discussed moving the accounts payable
function to Eenigenburg. Wetters had been wanting to transition the function since July 3, but
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Eenigenburg’s P-card was delayed because the Defendant was changing card providers. The
Plaintiff was going on vacation in July at the same time the Defendant’s fiscal year was ending.
After discussions, Roper directed Wetters to tell the Plaintiff that the Defendant was moving the
accounts payable function to Eenigenburg. Wetters called the Plaintiff on July 27, 2011, and
advised her that the Defendant was moving the accounts payable functions to another employee.
The Plaintiff thought that Wetters was supposed to be extending an apology to her, and alleges
that, instead, Wetters yelled at her. She became upset, started sobbing, and told Wetters that she
was calling Roper. The Plaintiff called 911, but does not recall doing so intentionally. The
Plaintiff also called Roper to complain about Wetters. She told Roper that she was about to have
a nervous break down and she was so distraught that Roper recommended that she take paid time
off leading up to her planned vacation.
While the Plaintiff was on vacation, the Defendant’s July receipts were transferred from
the Plaintiff’s office to Eenigenburg for completion of the appropriate reports, consistent with
the transfer of the AP duties. On August 10, 2011, after she returned from vacation, the Plaintiff
sent Roper an email stating that she was “not sure how this whole situation has been resolved. I
still am not sure what to expect as far as my title, job or anything.” (Email (Aug. 10, 2011), ECF
No. 63-11.) She complained again about the way Wetters spoke to her and stated she was
“stressed and very uncomfortable working for him. I believe he wants me to feel this way and
wants me gone now that I asked for assistance with the main issue of my limitations. I honestly
do not know who to trust any longer. This whole situation has made me actually ill due to being
so upset. What’s the resolution?” (Id.) In Roper’s response, he assured the Plaintiff that neither
her job title nor her job had changed. He also explained:
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The A/P duties are transitioning to the Lead CSS position for business reasons
Greg has previously discussed with you. Along with your regular duties, you are
expected to maintain a level of professionalism in your phone and personal
contacts with your coworkers and customers. As you admit, this has not been
occurring on a consistent basis.
As previously stated many times, Ferrellgas will make every effort to
accommodate within reason any restrictions you may have that prevent you from
performing your job duties. As previously requested, please let Greg, Twila, or
even myself know of any restrictions or accommodations you may have so we can
know what they are and give them our attention and consideration.
As a next step, I have asked Greg to be available for a conference call with you
and me. The purpose of the call is to clarify any questions you have about your
job duties and responsibilities, and for you to let us know of any restrictions and
what accommodations you may need to successfully do your job.
(Id.) Roper ended by discussing the logistics of the conference call. The Plaintiff responded to
Roper. She wrote:
That is fine however, Greg never discussed this with me in the conversation we
had on Wednesday he was very rude in speaking with me and just translated that
he was taking the duties for AP away from me. Which the way it was handle[d]
and the talks we had the previous week before all this started with my email to
Rick O’Connor, was that the guys were to come to me for any replacement
uniforms, I would be getting a company phone so that I could stop using my
personal cell for all the AP duties, the timing of this change is a little disturbing
even if as you say it’s for business reasons which makes me believe that it’s so he
does not have to touch base with me any longer on this level. This was the duty I
was told I was being hired for, I was to replace the AP duties from Sarah, He was
waiting for me to be trained and for the departure of the past Lead CSS.
I still would like to know how the issue of how he stated that me not doing certain
things would make me be looked upon differently is being handled.
(Id.)
Roper assured the Plaintiff that the conference call would be a good time to discuss her
questions. (Id.) The Plaintiff then informed Roper that she would be recording the conversation.
He replied that she did not have permission to record the call, that it would be a violation of
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company policy to do so, cited to the policy number, and assured the Plaintiff that the call was “a
standard business meeting.” (Id.)
The Plaintiff reiterated her displeasure with the manner in which her removal from the
accounts payable function had been handled and stated that she had “lost my trust and respect for
[Wetters] and a few others on the way this was handled and supposedly resolved.” (Id.) The
Plaintiff had expected an apology from Wetters on the day that he, instead, informed her that the
Defendant was moving accounts payable to another employee. She defended her job
performance and stated she had been “nothing but professional in all factors of it.” (Id.) The
Plaintiff demanded that someone else participate in the phone conference who was “outside of
Greg’s control and who can be witness.” (Id.)
Roper told the Plaintiff that the call was “an ordinary business meeting between you and
your manager” and that the purpose was for Wetters to answer the questions she had, and for her
to provide information to help the Defendant know her restrictions or accommodations. (Id.) He
advised that “[a]s a member of Human Resources and outside of Greg’s control, I will be on the
call to witness that process and help in any way possible.” (Id.)
The next day, August 11, the Plaintiff emailed Roper the following response:
I wasn’t referring to you as being under Greg’s control, I was referring to any
other possible witness, but you are part of FG and I honestly do not trust how any
of this has been handled. You are not here everyday and I believe without the
watchful eye he will treat me as he did that Wednesday. As you are aware I was
so distraught after the call that I was beyond tears at how he spoke to me and you
had to give me the paid time off before my vacation even started.
I still have not received my p-card receipts to review for my expense account and
they were all there and in order prior to my leaving and when I took over the
position when he spoke to me about being glad that the last employee was gone
and how they were trying to prove that her and the old OM were stealing, I do not
trust that he wouldn’t do the same to me after the way he has treated me the last
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couple of months, to want me gone. I did not know them that well so I do not
know the whole story, buy the fact that he was so forth giving with the
information and seemed happy about it.
(Id.) The Plaintiff then expressed her belief that accounts payable change was a response to her
asking “for help above [Wetter’s] title.” (Id.) She stated that she was not comfortable meeting
without a witness, that she did not need clarification on her CSS job description, and that she
hoped Wetters would be reprimanded for writing that he would look at her differently if she did
not attend the parade. (Id.)
Roper said they could discuss any of these issued during the scheduled conference call.
The Plaintiff wrote, “The meeting needs to be postponed until I have a chance to discuss with [an
attorney] my request to have a bystander that I trust in on any of the talks pertaining to my job
and the issues already on the table.” (Id.) Roper agreed to postpone the call until the next day,
but reminded the Plaintiff that it was an ordinary business meeting that Roper had recommended
in response to the Plaintiff’s emails. (Id.)
The Plaintiff wrote in reply,
Forgive me Mr. Roper, but since that Wednesday [when Wetters informed her
that AP duties were being transferred], nothing is ordinary about any of this now.
It may have been if all worked out as we discussed prior to his phone after you
spoke back with him about it all, but now I cry everyday, I don’t sleep from the
stress and have never felt so uncomfortable about coming to work in my life.
(Id.)
As these emails were being exchanged, Wetters responded to the Plaintiff’s accusations
and assertions and provided Roper with examples of the Plaintiff’s unprofessional actions in the
workplace, particularly as it related to her interactions with vendors, co-workers, and the local
management team. For example, Wetters relayed that he was informed that the Plaintiff yelled at
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a Ferrellgas driver who inquired on the status of shoes the Plaintiff was directed to order for him.
The report was that the Plaintiff went into a tirade about it not being her responsibility and that
he should call Twila Eenigenburg. Wetters also relayed instances where the Plaintiff had become
so distraught that she could not continue a business conversation.
Meanwhile, the Plaintiff continued to send emails to Roper about the receipts that were
removed from her office. She stated that she was requesting the receipts because she was taking
care of the expense report through the last of the month and had a “right to review them.” (8-1211 email, ECF No. 63-10.) She stated that Eenigenburg could be present, but that she did not
trust Wetters and wanted to make sure everything was in order. Roper responded that the receipts
could be addressed during the conference call. The Plaintiff replied: “I am not having this call as
recommended until I have seen for myself that all is ok with this, I have also been advised that
my request for a party being present that I consider trustworthy is a right. Now if you are
denying me that request officially. Please let me know.”
(Id.)
At the scheduled call time, Roper assured the Plaintiff through email that the call was
intended to be helpful and that the Defendant wanted to work with the Plaintiff. He asked if she
was ready to connect on the call. (Id.) The Plaintiff responded that she was “not having a verbal
meeting with [Wetters] until I can for myself verify that he has not tampered with my expenses”
and she was able to have a trusted witness. (Id.) She reiterated that she already knew her job
duties, and that she could write out her restrictions.
Roper wrote that because she stated she knew her job duties, he would inform Wetters
that there was “no need for that discussion today. Please write out the restrictions or
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accommodations you need and that we can help with. An email from you is fine, or a note from
your doctor would also be welcome.” (Id.) Roper encouraged the Plaintiff to continue to work
with Wetters and Eenigenburg “going forward, as would normally occur.” (Id.)
The Plaintiff followed up by “officially requesting” the expense receipts from the
previous month. She indicated that she would provide a list of her restrictions, but that she would
“not subject myself to direct contact with Greg Wetters until a resolution is satisfied on both
ends concerning the inappropriate way he treated me.” (Id.)
On August 15, the Plaintiff again contacted Roper to request the July receipts. She said,
“If I do not [hear] back about these once again, I will follow through with the next steps to try to
have all the issues not resolved yet, resolved.” (Email (Aug. 15, 2011), ECF No. 63-10.) The
Plaintiff said that she would contact a “higher office here at Ferrellgas.” She acknowledges that,
while she was accommodated for her limitations, “[n]othing has been resolved about the way he
made me feel with his pressuring of the activities or his insinuations if I didn’t do activities he
was telling me I would need to do with the way he treated and spoke to me the day after I spoke
with you concerning the issues. Instead, I was removed from my position in a horrible way.”
(Id.)
Later that day, the Plaintiff sent an email to Wetters listing her restrictions related to
walking, especially on uneven or cluttered ground. She stated that exposure to humidity or cold
could affect the fit of the prosthetic leg.
D.
Final Written Warning
Roper, with Wetter’s input, had started putting together a Final Written Warning for the
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Plaintiff. Roper and Wetter also conferred with O’Connor to make sure he understood their plan
to issue the Final Written Warning and supported it. On August 15, 2011, Wetters met with the
Plaintiff at the Francesville office, where Wetters presented the Plaintiff with the Final Written
Warning Roper had drafted. The Warning addressed concerns with the Plaintiff’s work quality,
her conduct/communication, and acts of insubordination. Eenigenburg was also present at the
Francesville office so that someone was there when Wetters met with the Plaintiff. The Plaintiff
became visibly upset and refused to sign the document. Given her emotional state, Wetters told
the Plaintiff to go home. When the Plaintiff raised concerns about the cash drawer, Wetters told
her she did not need to stay to count the cash drawer. The Plaintiff disagreed with Wetters and
told him that she wanted Eenigenburg to count the cash drawer before she left the office. The
Plaintiff only left after Eenigenburg did so. In her deposition testimony, the Plaintiff explained
that she refused to follow Wetter’s directive to go home “before I knew in my own mind and
heart that my responsibility cash-wise was resolved.” (Alderson Dep. 200–01, ECF No. 63-3.)
E.
Final Meeting and Termination From Employment
The next day, August 16, 2011, the Plaintiff was directed to report to work at the La
Crosse location with Eenigenburg because the Plaintiff’s emotional responses did not give the
Defendant confidence in her ability to deal with customers by herself. According to
Eenigenburg, the Plaintiff asked Eenigenburg to take the Plaintiff’s store key because she did not
want to be responsible for a key that opened the doors to five locations.
Despite the Plaintiff’s refusal to meet, the Defendant decided the best course of action
would be to meet again with the Plaintiff and communicate the basic job requirements for her
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position. Although the Plaintiff claimed to understand her job duties, the Defendant did not
believe she was displaying an ability to conduct herself in a professional manner and do her job
duties. Roper emailed Wetters a document that clarified the Plaintiff’s job duties and
expectations. These included taking back the office key; being available to talk with all coworkers related to business matters; to stop discussing the previous decision to transfer AP
duties to the Lead CSS position; to work without direct supervision when necessary; to count the
cash drawer at the beginning of each shift; to talk and engage professionally with co-workers and
vendors, and; to work with Wetters by reporting directly to him, meeting with him when
requested without demanding that another person be present, respecting his decisions, and
having conversations about her performance. All of the expectations were a response to actions
or statement that the Defendant believed the Plaintiff had made, such as turning in her key, and
asking that another employee confirm her cash drawer at the end of the day.
Roper coached Wetters on how to conduct the meeting with the Plaintiff, advising him to
go through each duty and give the Plaintiff a final chance to commit to the job and honor the
expectations. He stated that if the Plaintiff refused one or more of the duties, to advise her that
the duties were required, that refusal would be insubordination, and that her employment would
be terminated immediately.
Wetters conducted the meeting as instructed by Roper. He informed the Plaintiff that if
she indicated she was unwilling to perform any of the duties and expectations, it would be
considered insubordination. Wetters stated that, because the Plaintiff would be required to open
or close a location, she needed to take back her office key. The Plaintiff initially refused, but
then said she would do so, but only if someone else counted the cash drawer. However, the
17
Plaintiff was the only employee in the Francesville location. The Plaintiff agreed she could talk
with all co-workers related to business matters. The Plaintiff would not answer questions about
the AP duties decision. She also refused to answer when asked whether she would be able to
work alone and without direct supervision, and whether she would follow the procedure of
counting her own cash drawer. The Plaintiff agreed that she could talk with co-workers, vendors,
and customers professionally. She did not agree to work under Wetters’s supervision.
After telling the Plaintiff that she was going to leave him “no choice” about termination,
Wetters began to read through the items the Plaintiff had not answered in the affirmative. Her
responses did not change. The meeting ended with the Plaintiff’s termination from employment.
The Plaintiff told Wetters that she would sue the Defendant. According to the Plaintiff, as she
rose to leave, Wetters told her, “I have a team of lawyers and you don’t have a leg to stand on.”
F.
Unpaid Overtime Claims
The Plaintiff’s regular schedule was 8:00 a.m. to 5:00 p.m., but she would occasionally
arrive later or leave earlier. Ferrellgas policy requires employees to accurately report the number
of hours actually worked each day using a Ferrellgas computer program. It also requires
employees to obtain permission prior to working overtime, but even unapproved overtime is paid
if it is reported. For most weeks, the Plaintiff’s reports show her working on Monday through
Friday from 8:00 a.m. to noon, and 1:00 p.m. to 5:00 p.m., for a total of 40 hours per week. The
reports also show times when she worked less than 40 hours, worked outside her regular
18
schedule, and worked overtime.2
As part of her AP duties, the Plaintiff purchased supplies and distributed them to other
locations. The Plaintiff identifies four weekends in March and April 2011 where she estimates
that she averaged four hours of overtime to purchase and deliver supplies to various Ferrellgas
locations. She also identifies four weekdays where she purchased materials before arriving at the
office (but after 8 a.m.) or during lunch (although one of the January 25th receipts records a
transaction time of 1:09 p.m. and the Plaintiff’s time records for the same date record her
working at 1:00 p.m.). The Plaintiff’s time reports do not show any reported hours on a weekend,
and the Plaintiff never attempted to enter time for a weekend. Nor did she submit overtime that
was rejected. The Plaintiff maintains that Wetters preferred that the Plaintiff make purchases for
the Defendant after office hours and on weekends so that the Plaintiff would remain in the
Francesville office to answer phones. She contends that she asked him about recording the time,
and he said “We’ll figure something out” but that “nothing ever came about it.” (Pl.’s Dep. 220,
ECF No. 70-1.)
The Defendant did not specifically claim to anyone at Ferrellgas that she was working
overtime, but “started mentioning to [Wetters] about the time it took” and that it was “affecting
[her] weekends when [she] had to do it.” (Pl.’s Dep. at 226, 229.) When she “told them
2
For example, the Plaintiff recorded 32 hours worked the week of May 31, 2010 (Memorial Day
off), the week of June 28, 2010 (Friday off before Fourth of July), 24 hours the following week, 36 hours
in 4 days during the week of August 16, 2010, 42 hours the week of August 23, 2010 (including 7 hours
on Thursday and 11 hours on Friday), 32.25 hours the week of September 6, 2010 (Labor Day off), 32
hours the week of September 20, 2010, 39 hours the week of September 27, 2010, 32 hours the week of
November 22, 2010, 32 hours the week of December 20, 2010 (Christmas Eve off), 33.5 hours the week
of December 27, 2010, 32 hours the week of January 31, 2010, 16 hours the week of March 21, 2011, 32
hours the week of March 28, 2011, 39 hours the week of April 11, 2011, 32 hours the week of April 25,
2011, 32 hours the weeks of May 23, 2011, and May 30, 2011, 32 hours the weeks of June 27, 2011, and
July 4, 2011, and 32 hours the week of July 18, 2011.
19
specifically I do not want to do my shopping later in the evening, that I wanted to leave early to
get it taken care of, then he would okay—finally okay that.” (Id. at 222.) According to Wetters,
when he learned that the Plaintiff intended to make purchases on a weekend, he directed her to
make all purchases online and have them shipped to the plant instead. (Wetter’s Dep. 164, ECF
No. 63-4.) Wetters reviewed time sheets each week, but he was not present at the Francesville
location to know if the Plaintiff worked the exact hours that she reported.
STANDARD OF REVIEW AND PENDING CLAIMS
The Plaintiff acknowledges that she is no longer pursuing a disability discrimination
claim or a gender-based hostile work environment claim [ECF No. 70 at 24]. The parties dispute
who is to blame for the fact that these claims were not dismissed prior to the briefing on
summary judgment in June 2014. In April 2014, the Plaintiff advised the Defendant that she was
willing to dismiss the claims. However, no submissions were made to the Court to effectuate a
dismissal. The Defendant claims that the Plaintiff should have dismissed the claims, either on her
own or by requesting that the Defendant stipulate to their dismissal. The Plaintiff asserts that the
Defendant did not agree to stipulate to a dismissal, but does not clarify whether she actually
sought the Defendant’s agreement. For its part, the Court is satisfied that the Plaintiff is no
longer pursuing claims for disability discrimination or hostile work environment based on
gender. Additionally, the Plaintiff states in her Response that she “is willing to voluntarily
dismiss Count V of her Complaint for conversion.” (Pl.’s Resp. 25, ECF No. 69.)
20
The standards applicable to summary judgment are well established.3 Summary judgment
is appropriate “if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment
is the moment in litigation where the non-moving party is required to marshal and present the
court with evidence on which a reasonable jury could rely to find in his favor. Goodman v. Nat’l
Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). The court’s role in deciding a motion for
summary judgment “is not to sift through the evidence, pondering the nuances and
inconsistencies, and decide whom to believe. The court has one task and one task only: to
decide, based on the evidence of record, whether there is any material dispute of fact that
requires a trial.” Waldridge v. Am. Heochst Corp., 24 F.3d 918, 920 (7th Cir. 1994). A district
court should deny a motion for summary judgment only when the non-moving party presents
admissible evidence that creates a genuine issue of material fact. Luster v. Ill. Dep’t of Corrs.,
652 F.3d 726, 731 (7th Cir. 2011) (citing United States v. 5443 Suffield Terrace, 607 F.3d 504,
510 (7th Cir. 2010); Swearnigen–El v. Cook County Sheriff’s Dep’t, 602 F.3d 852, 859 (7th Cir.
2010)). Material facts are those that are outcome determinative under the applicable law. Smith
v. Severn, 129 F.3d 419, 427 (7th Cir. 1997). “Irrelevant or unnecessary facts do not deter
3
The Plaintiff asserts in her Response in Opposition to Defendant’s Motion for Summary
Judgment that the Seventh Circuit “has held that summary judgment is usually inappropriate in
employment discrimination cases.” (Pl.’s Resp. 3 (citing Wallace v. SMC Pneumatics, Inc., 103 F.3d
1394, 1396 (7th Cir. 1997).) The Plaintiff arrives at this erroneous assertion by highlighting an
incomplete statement from Wallace. While the court did say that “[l]anguage in some of our cases implies
that because intent is a critical issue in employment discrimination cases, summary judgment is unlikely
to be appropriate in such cases,” it went on to clarify that “there is not a separate rule of civil procedure
governing summary judgment in employment discrimination cases,” and that the language from those
cases “really just means that courts should be careful in a discrimination case as in any case not to grant
summary judgment if there is an issue of material fact that is genuinely contestable, which an issue of
intent often though not always will be.” 103 F.3d at 1396. In fact, summary judgment is common in
employment discrimination cases. Id.
21
summary judgment, even when in dispute.” Harney v. Speedway SuperAmerica, LLC, 526 F.3d
1099, 1104 (7th Cir. 2008). Additionally, a court is not “obliged to research and construct legal
arguments for parties, especially when they are represented by counsel.” Nelson v. Napolitano,
657 F.3d 586, 590 (7th Cir. 2011).
ANALYSIS
A.
Retaliation Claims
The Plaintiff alleges that her termination from employment was the result of her requests
for an accommodation. The Plaintiff asserts that removing the accounts payable duties and
giving her a final written warning were also retaliatory. A plaintiff may proceed under either the
“direct” or “indirect” method of proof to establish this type of claim. Dickerson v. Bd. of Trs. of
Cmty. Coll. Dist. No. 522, 657 F.3d 595, 601 (7th Cir. 2011). “[B]oth methods are directed at the
‘fundamental question at the summary judgment stage, which is simply whether a reasonable
jury could find prohibited discrimination.’” Orton-Bell v. Indiana, 759 F.3d 768, 773 (7th Cir.
2014) (quoting Bass v. Joliet Pub. Sch. Dist. No. 86, 746 F.3d 835, 840 (7th Cir. 2014) (brackets
omitted).
The Plaintiff presents her case under the direct method.4 Accordingly, she must present
4
The Plaintiff also devotes a section of her brief to the indirect method of proof, but the
arguments are essentially the same save for a short discussion about similarly-situated employees. The
Plaintiff identifies the other two CSSs as similarly situated, but does not attempt to show that they
engaged in “similar conduct without such differentiating or mitigating circumstances as would distinguish
their conduct or the employer’s treatment of them.” Coleman v. Donahoe, 667 F.3d 835, 847 (7th Cir.
2012). “[I]n deciding whether two employees have engaged in similar misconduct, the critical question is
whether they have engaged in conduct of comparable seriousness.” Peirick v. Univ.-Purdue Univ.Indianapolis Athletics Dep’t, 510 F.3d 681, 689 (7th Cir. 2007). Here, the Plaintiff has not indicated what
conduct she believes her comparators engaged in, much less designated evidence to suggest that the
proposed comparators are “similar enough to permit a reasonable juror to infer, in light of all the
22
either direct or circumstantial evidence that her employer’s actions were based on prohibited
animus. See Dickerson, 657 F.3d at 601. The Plaintiff asserts that the circumstantial evidence
raises an inference that her employer took action to terminate her employment in retaliation for
requesting an accommodation. Under this approach, “the plaintiff must connect the
circumstantial evidence to the employment action such that a reasonable juror could infer the
employer acted for discriminatory reasons.” Fleishman v. Cont’l Cas. Co., 698 F.3d 598, 603
(7th Cir. 2012). Such circumstantial evidence may include “(1) suspicious timing; (2) ambiguous
statements or behavior towards other employees in the protected group; (3) evidence, statistical
or otherwise, that similarly situated employees outside of the protected group systematically
receive better treatment; and (4) evidence that the employer offered a pretextual reason for an
adverse employment action.” Teruggi v. CIT Grp./Capital Fin., Inc., 709 F.3d 654, 659–60 (7th
Cir. 2013) (quoting Dickerson, 657 F.3d at 601). “The ultimate question the parties and the court
always must answer is whether it is more likely than not that the plaintiff was subjected to the
adverse employment action because of his protected status or activity. To answer that question,
the individual ‘bits and pieces’ presented by the plaintiff must be put into context and considered
as a whole.” Hobgood v. Ill. Gaming Bd., 731 F.3d 635, 644 (7th Cir. 2013).
The Plaintiff asserts that she was terminated for seeking accommodation of her disability,
for complaining of disability discrimination and retaliation by Wetters, and for writing to
O’Connor that she would complain to the Department of Labor. The circumstantial evidence in
the record, construed in a light most favorable to the Plaintiff, does not constitute a sufficient
circumstances, that an impermissible animus motivated the employer’s decision.” Coleman, 667 F.3d at
841.
23
basis for a jury to infer that these actions—as opposed to the Plaintiff’s own
insubordination—were the basis for the Defendant’s decision to terminate her employment. The
Plaintiff relies heavily on temporal proximity, arguing that after she complained to O’Connor,
Roper asked Wetters for examples of the Plaintiff’s poor job performance. She argues that “[t]his
immediate response from HR clearly evidences a causal connection between the two. A
reasonable trier of fact could conclude that [the Plaintiff’s] termination was a foregone
conclusion and HR intended to terminate [the Plaintiff] because she engaged in protected
activity, regardless of the results of its investigation.” (Pl.’s Resp. 7–8.) This is speculation, not a
reasonable inference. To be fair, the involvement of the human resources department was a
response to the Plaintiff’s complaints and accusations against Wetters. But the Plaintiff has no
evidence to suggest that this involvement was improper, much less that it was a conspirative
preliminary step to a “foregone conclusion” about her employment.
First, “suspicious timing alone is almost always insufficient to survive summary
judgment.” Leitgen v. Franciscan Skemp Healthcare, Inc., 630 F.3d 668, 675 (7th Cir. 2011).
“‘The mere fact that one event preceded another does nothing to prove that the first event caused
the second. . . . [O]ther circumstances must also be present which reasonably suggest that the
two events are somehow related to one another.’” Bilow v. Much Shelist Freed Denenberg Ament
& Rubenstein, P.C., 277 F.3d 882, 895 (7th Cir. 2001) (quoting Sauzek v. Exxon Coal USA, Inc.,
202 F.3d 913, 918 (7th Cir. 2000)); see also Scaife v. Cook Cnty., 446 F.3d 735, 742 (7th Cir.
2006) (noting that under ordinary circumstances, “[c]lose temporal proximity provides evidence
of causation and may permit a plaintiff to survive summary judgment provided that there is other
evidence that supports the inference of a causal link”) (internal quotation marks omitted,
24
emphasis added).
Suspicious timing may be just that—suspicious—and a suspicion is not enough to
get past a motion for summary judgment. Occasionally, however, an adverse
action comes so close on the heels of a protected act that an inference of causation
is sensible. Deciding when the inference is appropriate cannot be resolved by a
legal rule; the answer depends on context, just as an evaluation of context is
essential to determine whether an employer’s explanation is fishy enough to
support an inference that the real reason must be discriminatory.
Loudermilk v. Best Pallet Co., LLC, 636 F.3d 312, 315 (7th Cir. 2011) (citations omitted); see
also Taylor-Novotny v. Health Alliance Med. Plans, Inc., 772 F.3d 478, 495–96 (7th Cir. 2014)
(emphasizing that “suspicious timing must be evaluated in the context of the whole record”).
Second, engaging in protected activity does not immunize an employee from being
disciplined or terminated for workplace behavior, Bernier v. Morningstar, Inc., 495 F.3d 369,
376 (7th Cir. 2007); Hall v. Bodine Elec. Co., 276 F.3d 345, 359 (7th Cir. 2002), and “where a
significant intervening event separates an employee’s protected activity from the adverse
employment action he receives, a suspicious-timing argument will not prevail, Kidwell v.
Eisenhauer, 679 F.3d 957, 967 (7th Cir. 2012) (internal quotation marks and brackets omitted).
The Plaintiff’s written warning and termination were the result of significant intervening events
of insubordination and unprofessionalism that separated her complaints from the adverse
employment action. Although her employment was terminated shortly after her complaints about
job duties, the decision was the culmination of the consequences of those intervening events.
During this time, the Plaintiff continually refused to participate in meetings with her employer,
accused her supervisor of taking receipts so that he could frame her for theft, demanded to
complete the accounts payable report after the duties were transferred, and communicated
unprofessionally with coworkers and local management. The shift in her behavior throughout
25
July and August 2011 culminated in her refusal to (1) sign a written warning; (2) to agree to
work alone and without direct supervision; (3) to follow the procedure of counting her own cash
drawer, and (4) to work under Wetters’s supervision. During this same time, the communications
from her employer express a desire to achieve a resolution.
The Defendant was under no obligation to forego action that was adverse to the Plaintiff
simply because she complained of its actions. See, e.g., Love v. City of Chi. Bd. of Educ., 241
F.3d 564, 570 (7th Cir. 2001) (“We have consistently held that an employee’s insubordination
toward supervisors and coworkers, even when engaged in protected activity, is justification for
adverse employment action.”) (quoting Kahn v. United States Sec’y of Labor, 64 F.3d 271, 279
(7th Cir. 1995) (brackets and alteration omitted)). The Plaintiff downplays her antagonistic
behavior, but “a plaintiff’s own opinions about her work performance or qualifications do not
sufficiently cast doubt on the legitimacy of her employer’s proffered reasons for its employment
actions.” Ost v. W. Suburban Travelers Limousine, Inc., 88 F.3d 435, 441 (7th Cir. 1996).
Rather, she must establish that the Defendant did not genuinely believe that the Plaintiff’s
actions were insubordinate. That is, she must show that the reason was pretextual.
“Pretext means a dishonest explanation, a lie rather than an oddity or an error. Pretext is
more than a mistake on the part of the employer; it is a phony excuse. Showing pretext requires
proof that the defendant’s explanation is unworthy of credence.” Faas v. Sears, Roebuck & Co.,
532 F.3d 633, 642 (7th Cir. 2008) (citations, brackets, and quotation marks omitted); see also
Jordan v. Summers, 205 F.3d 337, 343 (7th Cir. 2000) (stating that even if an employer’s reason
for terminating an employee is “mistaken, ill considered or foolish,” pretext has not been shown
as long as the employer “honestly believed those reasons”). It is not “the court’s concern that an
26
employer may be wrong about its employee’s performance, or be too hard on its employee.
Rather, the only question is whether the employer’s proffered reason was pretextual, meaning
that it was a lie.” Ransom v. CSC Consulting, Inc., 217 F.3d 467, 471 (7th Cir. 2000) (internal
citations omitted).
As evidence of pretext, the Plaintiff notes that, prior to July 2011, there were no
documents to suggest that her “performance was seriously deficient and worthy of disciplinary
action.” (Pl.’s Resp. 17, ECF No. 69]. However, “[t]he question is not whether [the Plaintiff]
ever satisfied the [Defendant]’s expectations, but whether [the Plaintiff] met the [Defendant]’s
expectations at the time she was fired.” Zayas v. Rockford Mem’l Hosp., 740 F.3d 1154, 1158
(7th Cir. 2014) (citing Peters v. Renaissance Hotel Operating Co., 307 F.3d 535, 545–46 (7th
Cir. 2002)). Further, an employer’s legitimate expectations are not limited to actual job
performance, but include “factors such as insubordination and workplace camaraderie.” See
Fane v. Locke Reynolds, LLP, 480 F.3d 534, 540 (7th Cir. 2007).
The Plaintiff also questions the fact that she was not given “a reasonable time frame”
after receiving the Final Written Warning to correct the documented behavior, as is
recommended by Ferrellgas policy. The Plaintiff ignores the fact that she refused to sign the
Written Warning. Moreover, her actions the following day led to her termination for
insubordination. With respect to that decision, the Plaintiff argues that there is evidence that the
Defendant’s stated reason for her termination at the August 16, 2011, meeting was false. She
submits that she indicated she could perform some of the functions Wetters described to her, and
maintains that she was upset and confused by Wetters’s questioning, which is “hardly evidence
that [she] could never again perform the essential functions of a CSS.” (Pl.’s Resp. 21, ECF No.
27
69.) The Plaintiff’s argument misses the point. It has never been the Defendant’s position that
the Plaintiff was incapable of performing the CSS duties if she chose to do so. But she did not
give an affirmative response to all of Wetters’s questions about her duties, despite being warned
that failure to acknowledge any one of the duties would be considered insubordination. She
believes this should not have mattered because she was “upset that her requests for
accommodation and complaints of retaliation caused a substantial change in her job duties,
responsibilities and work site.” (Id.) The reason the Plaintiff failed to acknowledge all of the
duties Wetters presented to her is not relevant. All that matters is whether the Defendant honestly
regarded the Plaintiff’s responses to be insubordinate. On that point, the Plaintiff has no
contradictory evidence.
Neither does the sequence of events, viewed in context, support an inference of
retaliation with respect to the removal of the accounts payable function. The designated evidence
shows that Wetters had decided to remove the duties from the Plaintiff before any of the
communications in July regarding her participation in the parade or her emails to O’Connor. He
took steps for a p-card to be issued to the lead CSS, Twila Eeginenburg, on June 3. Despite this
undisputed date for application of the card, the Plaintiff argues that there is evidence to dispute
that the Defendant planned to transfer these duties to Eenigenburg before the Plaintiff engaged in
protected activity. As proof, the Plaintiff points to the fact that Eeginenburg did not know about
the transfer until it occurred in late July. The fact that Wetters did not inform Eenigenburg of the
details of his plan does not contradict the card application date.
In any event, under either method of proof, the Plaintiff would be required to show that
the removal of the accounts payable duties was a materially adverse action. See Brown v.
28
Advocate S. Suburban Hosp., 700 F.3d 1101, 1106 (7th Cir. 2012) (direct method); Harper v.
C.R. England, Inc., 687 F.3d 297, 309 (7th Cir. 2012) (indirect, burden-shifting approach). An
action is materially adverse for purposes of retaliation if it “well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination.” Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quotation marks omitted). “[A] lateral
transfer without a loss of job benefits does not constitute an adverse employment action.” Stutler
v. Ill. Dep’t of Corr., 263 F.3d 698, 702 (7th Cir. 2001). Neither does the removal of a simple
duty that is not part of the job description, is commonly moved among eligible employees, that
has no connection to wages or benefits, and that does not impact career prospects or promotional
opportunities. The Plaintiff appears to have had a preference for maintaining responsibility for
the AP duties (or, at least a preference that they not be removed by Wetters). But “personal
preference is not sufficient to establish an adverse action . . . [or] the objective requirement for
such a finding would effectively be eliminated and federal employment law would become a
mechanism for enforcing employee preferences rather than remedying materially adverse
treatment.” Lucero v. Nettle Creek Sch. Corp., 566 F.3d 720, 730 (7th Cir. 2009). By the
Plaintiff’s own admission, the removal of AP duties did not impact her day-to-day duties. (Pl.’s
Dep. 173, ECF No. 70-1.) Her objection was “how it was done and portrayed that affected me.”
(Id.)
But even if Wetters “yelled” at her during the telephone conversation when he told her
about the transfer, this does not objectively rise to the level of being materially adverse because
it would not dissuade a reasonable worker from complaining of discrimination. See, e.g., Henry
v. Milwaukee Cnty., 539 F.3d 573, 586 (7th Cir. 2008) (finding that unspecified intimidation,
29
door slamming by superiors, missing or marked up time cards, and other incidents were petty
slights and mere annoyances rather than materially adverse actions capable of sustaining a
retaliation claim). The Plaintiff’s response, far from being that of a reasonable worker, was that
of an extremely sensitive one. She immediately called Roper and said she was on the verge of a
nervous breakdown, and was so distraught that Roper recommended to her that she take paid
time off. When she returned to work after taking a planned vacation, she drafted an email to
complain about the way Wetters spoke to her, stating that she was “stressed and very
uncomfortable working for him. I believe he wants me to feel this way and wants me gone now
that I asked for assistance with the main issue of my limitations. I honestly do not know who to
trust any longer. This whole situation has made me actually ill due to being so upset.” (8-10-11
email, ECF No. 63-11.) Even viewing the evidence most favorably to the Plaintiff does not
reveal sufficient evidence to conclude that the transfer of the accounts payable duties was
punitive action, much less punitive action taken because the Plaintiff complained to human
resources about potential field work.
The Plaintiff claims that she has other evidence of retaliation in the form of ambiguous
oral and written statements by Wetters. She points to Wetters’s response to her email about the
Blueberry Festival. (Pl.’s Resp. 12–13 (referring to Wetters’s email statements that he could not
expect all employees to participate except the Plaintiff, and that if she refused to participate she
should not expect it to be viewed as a positive by him or her peers).) It is not clear what the
Plaintiff believes are the implication of these statements as it relates to her retaliation claim. The
reasonable inference of the statements, viewed in context with the entirety of the
communications, is that Wetters believed the Plaintiff’s negative response to participating in the
30
Blueberry Festival was detrimental to the team, that he desired all employees to attend what he
believed was the company’s most important event of the year, he did not want to make an
exception for the Plaintiff merely because she had conflicting plans, and that choosing not to
attend would not help her relationships with her coworkers. Even if some of Wetters’s statements
could be construed as hostile toward the Plaintiff, retaliation “calls for evidence of adverse
employment action linked to a protected activity, not just evidence of problematic hostility.”
Hutt v. Abbvie Prods., Inc., 757 F.3d 687, 694 (7th Cir. 2014). The statements the Plaintiff
highlights were made before the Plaintiff made any mention of requiring an accommodation. Up
to that point, the Plaintiff’s complaints had been about taking time away from a camping trip
with her husband and friends on a holiday. Thus, the necessary link to protected activity is
missing.
In her statement of facts, the Plaintiff asserts that Eenigenburg “observed Wetters to have
frustration from [the Plaintiff’s] accommodation requests.” (Appendix ¶ 14, ECF No. 70 (citing
Eenigenburg Dep. at 86).) The Plaintiff’s submission of this fact appears intended to support an
inference that Wetters was opposed to accommodating the Plaintiff’s disability. But
Eenigenburg’s testimony paints a different picture:
Q.
A.
Q.
A.
Did you ever hear anybody say anything negative about Jenni because of
those concerns [about performing certain duties] that she had?
I would say only that the consensus of the other CSSs was they weren’t
mandatory and arrangements could be made for her. I think we —
Did you ever hear Greg say anything negative about Jenni having
concerns about those?
Frustration that she didn’t think we could make accommodations for her.
(Eenigenburg Dep. 86–87, ECF No. 70-3.) The source of Wetters’s frustration then, according to
Eenigenburg, was not that he had to make an accommodation, but that the Plaintiff lacked
31
confidence in the Defendant’s ability to accommodate her.
The Plaintiff also claims that Wetters repeatedly told her that he would not be the one to
be fired if she complained to “higher authority at Ferrellgas” about extra duties. (Pl.’s Resp. 13.)
The Plaintiff concludes that the implication of these statements was that, instead, the Plaintiff
would be fired “for going over his head at Ferrellgas to seek accommodation of her physical
limitations and/or complaint of disability discrimination and/or retaliation.” (Id.) There is too
little context to the statement to justify such a broad conclusion. The Court’s “favor toward the
nonmoving party on summary judgment ‘does not extend to drawing inferences that are
supported by only speculation or conjecture.’” Brown, 700 F.3d at 1108 (7th Cir. 2012) (quoting
Harper, 687 F.3d at 306).
Finally, the Plaintiff points to Wetters’s statement, which he purportedly made after her
termination and in response to her announcement that she would sue the Defendant, that he had a
team of lawyers, and she did not have leg to stand on. She claims that this is an ambiguous
statement that a reasonable trier of fact could rely on to conclude that the Plaintiff was fired for
going over Wetters’s head at Ferrellgas to seek an accommodation of her physical limitations or
complaint of discrimination. The Court does not see how this is a statement “from which an
inference of retaliatory intent might be drawn.” Taylor-Novotny, 772 F.3d at 495 (providing the
kind of circumstantial evidence that can support “an inference that retaliatory animus was at
work”).
In sum, the record does not support a determination that the Plaintiff’s termination, or
any of the other actions about which she complains, were retaliatory. An examination of the
evidence yields no basis for the inferences that the Plaintiff would ask a jury to draw, and the
32
Court will grant summary judgment in favor of the Defendant on the retaliation claims.
B.
Fair Labor Standards Act Claim
The FLSA guarantees that employees who work “for a workweek longer than forty
hours” receive compensation for the employment in excess of forty hours at “a rate not less than
one and one-half times the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1)(C). “In
an action under the FLSA for overtime wages, the plaintiff must establish a prima facie case by
showing that he or she worked in excess of forty hours in a work-week.” Adkins v. Mid-Am.
Growers, Inc., 831 F. Supp. 642, 644 (N.D. Ill. 1993) (citing 29 U.S.C. § 207). Employers bear
the ultimate responsibility for ensuring that employee time sheets are an accurate record of all
hours worked by an employee. See 29 U.S.C. § 211(c); Walton v. United Consumers Club, Inc.,
786 F.2d 303, 314–15 (7th Cir. 1986). However, a plaintiff bears the burden of proving she
performed overtime work for which she was not compensated. Anderson v. Mt.Clemens Pottery
Co., 328 U.S. 680, 686–87 (1946), superseded on other grounds by Portal to Portal Act of 1947,
29 U.S.C. §§ 251–62. In addition, an employee is not considered to be “employed” unless he is
“suffer[ed] or permit[ted] to work.” 29 U.S.C. § 203(g). Under this definition of employ, the
Plaintiff must show that the Defendant had “actual or constructive knowledge” of his overtime
work. Kellar v. Summit Seating Inc., 664 F.3d 169, 177 (7th Cir. 2011) (holding that the FLSA
does not “requir[e] the employer to pay for work it did not know about, and had no reason to
know about”); see also 29 C.F.R. § 785.11 (stating that work that the employer does not request
may still be suffered or permitted if the “employer knows or has reason to believe that he is
continuing to work and the time is working time”).
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The Plaintiff alleges that she occasionally made purchases on weekends, and that the
Defendant knew she did this. She cites four different weekend dates, March 5, 2011, and April 2,
16, and 30, 2011, where she made such purchases and deliveries. But she does not indicate how
the Defendant had knowledge that she was performing this work, or that it should have known
that this caused her to work more than 40 hours. She never recorded the time or requested
payment for the time she spent shopping on these dates. She does not allege that the Defendant
instructed her not to report overtime. Cf.,Blakes v. Ill. Bell Tel. Co., 75 F. Supp. 3d 792, 811
(N.D. Ill. 2014) (no summary judgment where supervisor gave task and told plaintiff that it was a
“no overtime” job that needed to be completed regardless of the time it took and plaintiff was
told he had to “make a sacrifice for the team” when he complained about working through lunch
for a job); Brennan v. Quest Comm’ns Int’l, Inc., 727 F. Supp. 2d 751, 761 (D. Minn. 2010)
(denying summary judgment in case in which plaintiffs presented evidence that their employer
“insisted that [they] put down a lunch every day . . . even though [they] didn’t . . . take a lunch”);
Skelton v. Am. Intercontinental Univ. Online, 382 F. Supp. 2d 1068, 1072 (N.D. Ill. 2005)
(plaintiffs “testified that they were repeatedly instructed to record on their time sheets only forty
hours of work per week, despite the number of hours actually worked, and that if they did report
overtime, they were required to change their time sheets before they were submitted.”);
Cunningham v. Gibson Elec. Co., 43 F. Supp. 2d 965, 976 (N.D. Ill. 1999) (the defendant’s
president saw the plaintiff working after regular hours and “personally instructed” the plaintiff
not to report overtime hours that he worked). Although the Plaintiff states that Wetters asked if
she could do the shopping in the evening or on Saturday so she could stay in the office to answer
the phones, her testimony about the subject of recording her time is inconclusive. “Q. But he
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never told you not to put down the time? A. When I asked about the time, he said, We’ll figure
something out, if I recall, but nothing ever came about it.” (Pl.’s Dep. 220.) This does not create
an inference that Wetters had knowledge that the Plaintiff was working overtime. She submits
receipts for week day times, specifically for purchases made at 8:53 a.m., 8:59 a.m., 12:32 p.m.,
12:33 p.m., and 1:09 p.m., suggesting that the Plaintiff was not limited to making purchases in
the evening and on weekends. In addition, the Plaintiff testified that when she asked if she could
leave early to do the shopping, Wetters approved her request. (Id. at 222.) The Plaintiff does not
indicate how she recorded her time on the days that she left the office early to do shopping.
According to Wetters, whose testimony on the subject was not ambiguous, he saw emails
where the Plaintiff indicated she would pick up some items for the Defendant when she did her
personal shopping that weekend. He told her to order the items online instead, and have them
shipped to the appropriate facilities.5 Each employee entered his or her own hours, and Wetters
was not on location where the Plaintiff worked. He had no way of knowing if her hours reflected
the time she was actually in the office, or whether she reported hours to account for weekend
purchases. The Plaintiff does not point to anything to suggest that Wetters would have reason to
believe that she continued working on weekends after he told her to make purchases online. The
Plaintiff also testified that she mentioned to Wetters how much time the shopping took, but does
not put a time frame on this conversation or indicate that her complaints included the fact that
the time was not being compensated or caused her to work overtime.
Given Ferrellgas’s policy to record time accurately, the Plaintiff’s failure to request or
5
The Plaintiff might not agree that this is a fact that the Court may consider, but nothing in the
Plaintiff’s submissions contradicts it, and it was a part of the designated evidence.
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record overtime, the condensed time frame in which she performed weekend shopping, the fact
that her complaints to Wetters did not include that she was working overtime, Wetters approval
for the Plaintiff to leave work early to perform shopping, Wetters’s directive to make purchases
online when he learned she intended to shop on the weekend, and the Plaintiff’s unsupervised
occupation of the Francesville office, lead to the conclusion that the Defendant did not “sit back
and accept the benefits” of the Plaintiff’s work “without compensating” her for it. Kellar, 664
F.3d at 177 (quoting 29 C.F.R. § 785.13)); see also Gaines v. K–Five Const. Corp., 742 F.3d
256, 270 (7th Cir. 2014) (because “an employer cannot slyly sit back in order to reap extra work
without pay, it has no obligation to pay for work it did not know about and had no reason to
know about” so the employee’s unpaid overtime turned on whether he “presented a genuine
issue of material fact as to whether [his employer] knew that [the plaintiff] worked an extra 15
minutes on certain days”).
The Plaintiff’s evidence does not create a genuine issue of material fact as to whether the
Defendant was aware that she worked more than 40 hours on certain weeks to shop and make
deliveries. Accordingly, the Defendant is entitled to judgment as a matter of law on the
Plaintiff’s FLSA claim.
CONCLUSION
For the reasons stated above, the Defendant’s Motion for Summary Judgment [ECF No.
62] is GRANTED. The Defendant’s Motion for Relief Due to Destruction of Evidence [ECF No.
60], and the Plaintiff’s Motion to Deem Portions of Defendant’s Reply Brief Waived of Stricken
[ECF No. 73] are DENIED. The Clerk will enter judgment in favor of the Defendant and against
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the Plaintiff.
SO ORDERED on August 31, 2015.
s/ Theresa L. Springmann
THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
FORT WAYNE DIVISION
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