Barney v Zimmer Biomet Holdings Inc
Filing
67
OPINION AND ORDER: The Court GRANTS Zimmer's partial motion to dismiss. 30 The Court hereby DISMISSES Counts III and V, without prejudice, and DISMISSES Count IV, with prejudice. Signed by Judge Jon E DeGuilio on 11/26/2018. (lhc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
ROBIN BARNEY,
Plaintiff,
v.
ZIMMER BIOMET HOLDINGS, INC.,
Defendant.
)
)
)
)
)
)
)
)
)
Case No. 3:17-CV-616 JD
OPINION AND ORDER
Plaintiff Robin Barney resigned from her post as a senior vice president for Defendant
Zimmer Biomet Holdings (“Zimmer”). Based on several events that occurred shortly before and
after her resignation, Barney filed this lawsuit, alleging sex discrimination, breach of contract,
and constructive discharge. [DE 27]1 Zimmer has filed a partial motion to dismiss, seeking
dismissal of Barney’s contract and constructive discharge claims (Counts III-V). [DE 30] For the
reasons stated herein, the Court will grant the motion.
FACTUAL ALLEGATIONS
Barney became senior vice president for operations for Biomet, Inc., in September 2008.
In 2015, Biomet, Inc., merged with Zimmer Holdings, Inc., to become Zimmer Biomet Holdings,
Inc. As a result of the merger, Barney became Zimmer’s senior vice president of global
operations and logistics. She served in that role until her resignation in late 2016.
Several distinct incidents precipitated Barney’s resignation. First, around August 2016,
Zimmer informed Barney that her position would be moved from Indiana to Switzerland by the
end of 2017, and that this would require her to relocate. Eventually, Barney informed Zimmer
1
The operative pleading is Barney’s third amended complaint.
1
that she did not wish to relocate with the position. Second, around October 2016, Barney alleges
that Zimmer’s CFO demanded that she concoct a story to mislead Zimmer’s investors about the
cause of recent quarterly shortfalls. Barney refused this order, but she does not allege anything
resulted from her refusal. Around this same time, Barney alleges that she faced pressure from
Zimmer about sales and product shipments related to one of the company’s facilities, even
though production had already been shut down at that facility due to a Food and Drug
Administration audit. On October 28, 2016, Barney alleges that Zimmer’s CEO ordered her to
make organizational changes that included terminating employees under a false pretext. Again,
Barney refused to comply. In response, Barney alleges the CEO stated “he was not happy with
her refusal, and that they would talk further about it.” [DE 27 ¶ 22] Barney submitted her
resignation that same day, giving two weeks’ notice. She now claims that she had no choice but
to resign in the face of these incidents; she alleges that, together, they constituted intolerable
conditions, and she further wished to extricate herself from the potential securities fraud being
committed by other executives.
Following her resignation, Barney alleges she requested severance benefits in accordance
with the 2008 Employment Agreement (the “Agreement”), which governed her employment
with Zimmer. Zimmer not only refused to pay Barney these benefits, but also terminated her
stock options as provided in the Stock Incentive Plan (the “SIP”) she had with the company.2
This lawsuit followed.
2
While Zimmer attached the Agreement and the SIP to its motion, Barney did not include them with the
operative complaint (although she did attach them to prior pleadings [DE 1; DE 23]). Nonetheless, the
Court may consider them without converting Zimmer’s motion into one for summary judgment, because
they are referred to in the complaint and central to Barney’s claim. See Hecker v. Deere & Co., 556 F.3d
575, 582 (7th Cir. 2009) (citations omitted). In addition, Barney does not challenge their authenticity. See
id.
2
STANDARD
In reviewing a motion to dismiss for failure to state a claim upon which relief can be
granted under Federal Rule of Civil Procedure 12(b)(6), the Court construes the complaint in the
light most favorable to the plaintiff, accepts the factual allegations as true, and draws all
reasonable inferences in the plaintiff’s favor. Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143,
1146 (7th Cir. 2010). A complaint must contain only a “short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). That statement must
contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its
face, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and raise a right to relief above the speculative
level. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). However, a plaintiff’s claim need
only be plausible, not probable. Indep. Trust Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930,
935 (7th Cir. 2012). Evaluating whether a plaintiff’s claim is sufficiently plausible to survive a
motion to dismiss is “‘a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.’” McCauley v. City of Chicago, 671 F.3d 611, 616 (7th
Cir. 2011) (quoting Iqbal, 556 U.S. at 678).
DISCUSSION
Zimmer seeks to dismiss Counts III-V of Barney’s complaint. With regard to Barney’s
breach of contract claims (Counts III and IV), Zimmer argues that Barney has failed to allege
that she satisfied the necessary conditions precedent to receive severance payments, and that her
own allegations demonstrate that she did not qualify for the immediate vesting of her stock
options. As for Barney’s constructive discharge claim (Count V), Zimmer maintains that
Barney’s complaint contains insufficient allegations to support the notion that she had no choice
3
but to resign in the face of truly intolerable workplace conditions. As explained below, the Court
finds Zimmer’s arguments persuasive and will grant the motion.
1.
Breach of Contract
Barney alleges that Zimmer breached the terms of the Agreement and the SIP by failing
to provide her with certain severance benefits and terminating her stock options. In Indiana, it is
well settled that “[t]o recover for a breach of contract, a plaintiff must prove that: (1) a contract
existed, (2) the defendant breached the contract, and (3) the plaintiff suffered damage as a result
of the defendant’s breach.” Collins v. McKinney, 871 N.E.2d 363, 370 (Ind. Ct. App. 2007).3
Neither of Barney’s breach of contract theories can survive Zimmer’s motion.
a.
Employment Agreement and Severance Benefits
Barney’s first claim for breach of contract refers to the severance benefits that fall under
Section 9(e) of the Agreement, which provides enhanced payments should the executive
(Barney) terminate the Agreement herself for “Good Reason” following a “Change of Control.”4
In either scenario, however, payment is conditioned upon the executive’s signing and nonrevocation of a release “in a form substantively identical in terms” to a sample document
attached to the back of the Agreement. (Agreement ¶ 10(h)).
Zimmer argues that Barney has failed to make out a claim for breach of Section 9(e)
because she has not alleged certain conditions precedent to the payment. Specifically, Zimmer
maintains that Barney’s resignation does not fall under any of the “Good Reason” provisions that
establish severance payment eligibility, and that she never alleges to have executed a release
3
Indiana law governs both documents. (Agreement ¶ 19; SIP § 20).
4
Section 9(e) also provides for severance benefits should Zimmer terminate the executive without cause.
Barney suggests that she may be able to proceed under this prong if her constructive discharge claim
succeeds. [DE 32 at 5] But as discussed below, her constructive discharge claim will be dismissed, and so
the Court will not consider this alternative theory.
4
form. [DE 31 at 11] Barney responds that she need not allege conditions precedent in order to
adequately set forth a claim for breach of contract [DE 32 at 3], but that is not accurate. See
Redfield v. Cont’l Cas. Corp., 818 F.2d 596, 610 (7th Cir. 1987) (“[P]leading the performance of
conditions precedent is necessary to state a cause of action for breach of contract ….”).
Among the enumerated “Good Reasons” to support an executive’s resignation is the
“relocation of a [sic] Executive’s primary work location more than 50 miles from the Executive’s
work location on the Effective Date, without the Executive’s prior written consent.” (Agreement
¶ 23). Barney’s place of performance under the Agreement was at Zimmer’s executive offices in
Warsaw, Indiana. Id. ¶ 4. Around August 2016, Barney alleges that Zimmer’s vice president of
human resources informed her that “her job would be moved from Warsaw, Indiana to
Switzerland, requiring her relocation by the end of 2017.” [DE 27 ¶ 16] Barney argues that this
sufficiently invokes the Agreement’s definition of “Good Reason,” and indeed it might but for an
additional provision requiring Barney to “provide written notice to the Company of her intention
to terminate her employment for Good Reason,” specifying in reasonable detail the claimed
circumstances giving rise to her decision, “within thirty days following the occurrence of any of
the events set forth herein.” (Agreement ¶ 23).
Barney ignores this condition both in her pleadings and in her opposition brief. Her
complaint contains no allegations that she informed Zimmer in writing of her decision to resign
for “Good Reason” within thirty days of when she was informed about the relocation or within
thirty days of informing Zimmer that she would not move to Switzerland. She only alleges that
she “later informed Zimmer … that she did not wish to relocate to Switzerland, and was left to
conclude that her employment would therefore be terminated before the end of 2017 ….” [DE 27
¶ 18] But Barney did not decide to resign until October 28, 2016, and the only written notice she
5
references in her entire complaint is her resignation email dated that same day. Id. ¶ 25.
Furthermore, Barney does not allege whether that email “specifie[d] in reasonable detail” the
circumstances supporting her decision qualified as a termination for “Good Reason,” as required
by the Agreement. (Agreement ¶ 23).
Because Barney has not sufficiently alleged that she resigned for “Good Reason” to
qualify for severance benefits under Section 9(e), she cannot claim that Zimmer breached the
Agreement by not paying these benefits. See Redfield, 818 F.2d at 610 (“Our inspection of the
amended complaint reveals that it contains no allegation, either general or specific, regarding the
performance of all conditions precedent. Absent such an allegation, the amended complaint fails
to state a cause of action for breach of the [contracts].”). Therefore, her breach of contract claim
based on the Agreement’s severance benefits provisions (Count III) will be dismissed, without
prejudice.5
b.
Stock Incentive Plan
Barney additionally claims that Zimmer breached the SIP by terminating her stock
options upon her resignation, instead of allowing them to immediately vest pursuant to Section
7(b)(8). In relevant part, the SIP states:
If an optionee shall cease to be employed by the Company by reason of
Retirement after the optionee shall have been continuously employed by the
Company for a period of at least one year after the granting of the option … all
5
Zimmer’s alternative argument, that Barney failed to execute the required release form, does not
persuade the Court at this stage. Barney alleges that Zimmer “never provided [her] with a release
agreement” and “refused to provide a release agreement” in connection with her requests for severance
benefits. [DE 27 ¶¶ 35, 71] Zimmer cannot point to Barney’s failure to sign a release (and thus avoid
liability for its failure to pay severance benefits) where Barney has alleged that Zimmer impeded her
efforts to comply with the Agreement’s conditions. See Maddox v. Wright, 489 N.E.2d 133, 137 (Ind. Ct.
App. 1986) (“It is well established that where the actions or conduct of one party to a contract prevent the
other from performing his part, the other’s non-performance will be excused.”). But regardless, the
possibility that Barney never received a release form does not overcome her failure to allege that she even
qualified for the severance benefits she requested, as discussed above.
6
remaining unexercised portion(s) of the option shall immediately vest and become
exercisable by the optionee ….
(SIP § 7(b)(8)) (emphasis added). The SIP further defines “Retirement” as termination on or
after “(i) the employee’s 65th birthday or (ii) the employee’s 55th birthday if the employee has
completed 10 years of service with the Company.” Id. § 2(v). Barney alleges that she resigned
after turning fifty-five years old, but also admits that she had not served Zimmer for a full ten
years at that time. [DE ¶¶ 31-32, 76-77]6 By her own allegations then, Barney’s departure does
not meet the SIP’s definition of Retirement, and so she has effectively pled herself out of a cause
of action for breach because Zimmer was under no obligation to allow her stock options to
immediately vest via Section 7(b)(8). See Decatur Ventures, LLC v. Stapleton Ventures, Inc., 373
F. Supp. 2d 829, 847 (S.D. Ind. 2005) (A breach of contract claim should be dismissed “if there
is no set of facts under which [defendant] could be found to have breached its contract with
[plaintiff].”); see also Vinson v. Vermilion Cnty., Ill., 776 F.3d 924, 929 (7th Cir. 2015) (“[A]
plaintiff may plead herself out of court when she includes in her complaint facts that establish an
impenetrable defense to her claims.”).
Barney argues that she “would have remained employed at least through the end of 2017
… and would have become eligible for Retirement under the Stock Incentive Plan,” but for her
alleged wrongful constructive discharge. [DE 27 ¶ 78; DE 32 at 10] Not only is this theory
purely speculative (she could have been terminated for any number of hypothetical reasons
before reaching her ten-year work anniversary), but it highlights another flaw in her complaint: a
failure to sufficiently plead causation and damages. “Under Indiana law, a plaintiff has the
burden to plead and prove damages and that the breach of the contract was the cause in fact of
6
Barney does not allege that she reached sixty-five years of age prior to her resignation.
7
the loss.” Perfect Flowers, Inc. v. Teleflora LLC, No. 1:10-cv-1031, 2011 WL 2462224, at *7
(S.D. Ind. June 17, 2011); see also Shepard v. State Auto Mut. Ins. Co., 463 F.3d 742, 744-45
(7th Cir. 2006) (“[D]amages cannot be based on mere speculation and conjecture.”). Barney has
not (and cannot) plead that Zimmer’s termination of her stock options resulted in damages here;
she was never entitled to immediate vesting of those options and so Zimmer did not breach the
SIP by terminating them upon her resignation. See Dorsey v. Shire Regenerative Med., Inc.,
Cause No. 1:13-cv-1583, 2014 WL 1725823, at *2 (S.D. Ind. Apr. 30, 2014) (dismissing breach
of contract claim based on defendant’s failure to pay retention bonus to plaintiff, because
“[plaintiff] had to remain employed in good standing with [defendant] to receive his bonus, and
no matter the reason, he did not because he was fired in October 2012.”). The essence of
Barney’s argument is that her alleged constructive discharge cost her the stock options, but such
tort theories do not arise from contract. Erie Ins. Co. v. Hickman by Smith, 622 N.E.2d 515, 518
(Ind. 1993) (“It is axiomatic that tort obligations arise, not from an agreement between the
parties, but by operation of law.”).
Accordingly, Barney’s claim for breach of contract based on the SIP’s immediate vesting
provision (Count IV) will be dismissed, with prejudice.
2.
Constructive Discharge
Finally, Barney levies a claim for wrongful constructive discharge based on her
resignation. Barney alleges that she had no choice but to resign due to intolerable workplace
conditions she experienced after refusing to mislead investors or to terminate employees under a
false pretext.7 To survive a motion to dismiss for failure to state a constructive discharge claim,
7
Barney’s opposition brief clarifies that her allegations about her potential relocation to Switzerland do
not form the basis of her constructive discharge claim, but rather provide context and support for her
claim for severance benefits. [DE 32 at 12]
8
Barney must allege two things in her complaint: (1) that she is entitled to bring a retaliatory
discharge claim under an exception to the employment at will doctrine; and (2) that she was
indeed constructively discharged. Huckaby v. Jasper Cty. Sheriff’s Office, 928 N.E.2d 647, 2010
WL 2284246, at *2 (Ind. Ct. App. 2010) (citing Frampton v. Cent. Ind. Gas Co., 297 N.E.2d 425
(Ind. 1973)).
As to the first requirement, the parties do not dispute whether Barney served as an at-will
employee, and in Indiana, employment at will is terminable at any time for “good reason, bad
reason, or no reason at all.” Pierce v. Zoetis, Inc., 818 F.3d 274, 277 (7th Cir. 2016) (quoting
Meyers v. Meyers, 861 N.E.2d 704, 706 (Ind. 2007)). “The presumption of at-will employment is
strong,” and Indiana courts are “disinclined to adopt broad and ill-defined exceptions to the
employment-at-will doctrine.” Huckaby, 2010 WL 2284246, at *2 (citing Orr. v. Westminster
Village N., Inc., 689 N.E.2d 712, 717 (Ind. 1997)). Nonetheless, Indiana recognizes three narrow
exceptions to the at-will doctrine: (1) when adequate independent consideration supports a
contract; (2) when a clear statutory expression of a right or duty is contravened; and (3) when
promissory estoppel applies. Ogden v. Robertson, 962 N.E.2d 134, 145 (Ind. Ct. App. 2012).
Barney seeks to invoke the second of these exceptions, which originates from the
Supreme Court of Indiana’s decision in Frampton, 297 N.E.2d 425. In Frampton, the plaintiff
filed a claim for workers compensation, and his employer fired him for doing so. The court
declared that “when an employee is discharged solely for exercising a statutorily conferred
right[,] an exception to the general rule must be recognized.” Id. at 428. Later, in McClanahan v.
Remington Freight Lines, Inc., the court expanded the public policy exception to include a
“separate but tightly defined exception to the employment at will doctrine” when an employer
discharges an employee for refusing to commit an illegal act for which the employee would be
9
personally liable. 517 N.E.2d 390, 393 (Ind. 1988). In that case, an at-will employee refused to
drive his overweight truck through Illinois, fearing he would be personally liable for violating
Illinois law. The trucker’s refusal cost him his job. And relevant here, while Frampton and
McClanahan both involved fired employees, a constructive discharge claim may also rest on an
employee’s involuntary resignation, rather than her firing, but only where the claim fits within
the exception as recognized by those decisions. Baker v. Tremco Inc., 917 N.E.2d 650, 655 (Ind.
2009) (“The constructive discharge doctrine acknowledges the fact that some employee
resignations are involuntary and further prevents employers who wrongfully force an employee
to resign to escape any sort of liability for their actions.”).
Here, however, Barney’s refusal to terminate employees at the CEO’s behest does not
implicate any of the facts or rationales of either Frampton or McClanahan, and thus it cannot
serve as the basis for her constructive discharge claim. See Huckaby, 2010 WL 2284246, at **12 (affirming dismissal of plaintiff’s constructive discharge claim where it did not relate to the
exercise of a statutory right and did not arise out of a refusal to commit an illegal act or breach a
statutorily-imposed duty); see also Stocker v. Extendicare Health Servs., Inc., Cause No. 3:16CV-69, 2017 WL 83753, at *3 (N.D. Ind. Jan. 10, 2017) (“Failure to demonstrate a statutory
source for an alleged right or an imposed duty is grounds for dismissal.”). While Barney felt it
would not have been “ethical or truthful” to terminate employees under a false pretext [DE 27 ¶
22], she does not allege whether or how any such termination would have been illegal.
Barney’s only viable basis for a constructive discharge claim is that she resigned after
refusing to mislead Zimmer’s investors to avoid “being fired and possibly prosecuted for
securities fraud.” [DE 27 ¶ 28] So in order to pass muster, the complaint must contain allegations
sufficient to satisfy the second constructive discharge requirement, that Barney actually suffered
10
a constructive discharge. A constructive discharge “occurs when the plaintiff shows that [she]
was forced to resign because [her] working conditions, from the standpoint of the reasonable
employee, had become unbearable.” Chapin v. Fort-Rohr Motors, Inc., 621 F.3d 673, 679 (7th
Cir. 2010) (citing Pa. State Police v. Suders, 542 U.S. 129, 147 (2004); Roby v. CWI, Inc., 579
F.3d 779, 785 (7th Cir. 2009)).
The Seventh Circuit recognizes two forms of constructive discharge. “In the first form, an
employee resigns due to alleged discriminatory harassment.” Chapin, 621 F.3d 673, 679. Under
this form, the plaintiff must show workplace conditions “even more egregious than that required
for a hostile work environment claim because employees are generally expected to remain
employed while seeking redress, thereby allowing an employer to address a situation before it
causes the employee to quit.” Id. (citations omitted).8 The second form of constructive discharge
occurs “[w]hen an employer acts in a manner so as to have communicated to a reasonable
employee that she will be terminated ….” EEOC v. Univ. of Chi. Hosps., 276 F.3d 326, 332 (7th
Cir. 2002). In this situation, if the plaintiff employee resigns, the employer’s conduct may
amount to constructive discharge. Id. Proceeding under this form, however, does not eliminate
the need for the plaintiff to show that her working conditions had become intolerable. Chapin,
621 F.3d at 679 (citing Pa. State Police, 542 U.S. at 141). “And a working condition does not
become intolerable or unbearable merely because a ‘prospect of discharge lurks in the
background.’” Id. (quoting Cigan v. Chippewa Falls Sch. Dist., 388 F.3d 331, 333 (7th Cir.
2004)).
8
For example, the types of egregious conditions considered by the Seventh Circuit include the presence
of a threat to a plaintiff’s personal safety. Chapin, 621 F.3d at 679 (citing Porter v. Erie Foods, Int’l, Inc.,
576 F.3d 629, 640 (7th Cir. 2009) (claim for constructive discharge possible where harassment includes
repeated use of noose and implied threats of physical violence)).
11
Barney has failed to state a claim for constructive discharge. She has not made sufficient
allegations that anyone at Zimmer led her to reasonably believe that she would be terminated for
refusing to mislead investors (or for refusing to terminate employees, for that matter). All she
alleges is that, after she refused to terminate employees, the CEO told her “he was not happy
with her refusal, and that they would talk further about it,” and that Zimmer terminated two other
members of its leadership that same day. [DE 27 ¶¶ 22-23]9 Not only do these scant observations
have nothing to do with her refusal to mislead investors, but they likewise do not support a
constructive discharge claim on their own. See Parks v. Speedy Title & Appraisal Review Servs.,
318 F. Supp. 3d 1053, 1065 (N.D. Ill. 2018) (dismissing plaintiff’s Title VII constructive
discharge claim where she made no allegation that anyone working for defendant told her she
would be terminated).10
Moreover, Barney has not sufficiently alleged that her work environment was so
intolerable as to withstand a Rule 12(b)(6) motion. The complaint describes a work environment
where she faced demands to terminate employees under a false pretext and experienced pressure
about sales and shipments. Even accepting these allegations as true, Barney’s experience at
Zimmer “simply does not represent anything sufficiently egregious to support a constructive
9
In her opposition to the instant motion, Barney states that the “two other senior leaders … told her she
was about to be fired.” [DE 32 at 15] But this fact appears nowhere in her complaint, and so the Court
will not consider it here. Malone v. Securitas Sec. Servs., No. 13 C 8747, 2015 WL 5177549, at *2 (N.D.
Ill. Sept. 3, 2015), aff’d sub nom. Malone v. Securitas Sec. Servs. USA, Inc., 669 F. App’x 788 (7th Cir.
2016) (“Plaintiff may not attempt to cure deficiencies inherent in a complaint by asserting new facts for
the first time in opposition to a motion to dismiss.”); see also Car Carriers, Inc. v. Ford Motor Co., 745
F.2d 1101, 1107 (7th Cir. 1984) (“complaint may not be amended by the briefs in opposition to a motion
to dismiss”).
10
Although Parks addressed constructive discharge under Title VII, “[b]ecause there is scant Indiana law
on the issue of constructive discharge,” Indiana courts “turn for guidance to the federal courts, which
frequently address constructive discharge in the context of various employment discrimination claims.”
Tony v. Elkhart Cty., 918 N.E.2d 363, 369 (Ind. Ct. App. 2009).
12
discharge claim (or that would satisfy even the less-demanding standard for a hostile work
environment claim).” Id. (allegations that plaintiff “faced many technical issues with
telecommuting, was disciplined by her supervisors more than necessary, and faced pushback
about her job title and responsibilities” did not sufficiently state a constructive discharge claim);
cf. Alamo v. Bliss, 864 F.3d 541, 550-51 (7th Cir. 2017) (plaintiff sufficiently stated a hostile
work environment claim where he alleged two severe racial slurs directed at him along with
other incidents of harassment by coworkers); Huri v. Office of the Chief Judge of the Circuit
Court of Cook Cty., 804 F.3d 826, 834 (7th Cir. 2015) (plaintiff stated a claim for a hostile work
environment when she alleged “uniquely bad treatment” of herself and her daughter based on
their religion, including social shunning and being screamed at by co-workers).11
Barney’s complaint “does not describe the type of pervasive and targeted negative
treatment and hostility that would cause a reasonable person to feel that she must leave her place
of employment.” Parks, 318 F. Supp. 3d at 1065-66; see also Chapin, 621 F.3d at 679 (noting
that “[o]ne threat and raised voices would not rise to the level of a hostile work environment,”
and therefore would not support a constructive discharge claim). Therefore Barney’s claim for
wrongful constructive discharge (Count V) will be dismissed, without prejudice.
CONCLUSION
In sum, Barney has failed to adequately allege that Zimmer breached its Employment
Agreement with her, or that Zimmer subjected her to a wrongful constructive discharge.
Furthermore, by her own admissions, Barney resigned before becoming eligible for immediate
11
Recall that “[a]lthough a plaintiff may establish a hostile work environment by showing that she has
been subjected to severe or pervasive harassment, a ‘further showing’ is necessary to establish a
constructive discharge.” Parks, 318 F. Supp. 3d at 1065 n.5 (citing Porter v. Erie Foods Int’l, Inc., 576
F.3d 629, 639 (7th Cir. 2009)).
13
vesting of her stock options under the Stock Incentive Plan, and so she cannot claim that Zimmer
breached the Plan’s terms. As a result, the Court GRANTS Zimmer’s partial motion to dismiss.
[DE 30] The Court hereby DISMISSES Counts III and V, without prejudice, and DISMISSES
Count IV, with prejudice.
SO ORDERED.
ENTERED: November 26, 2018
/s/ JON E. DEGUILIO
Judge
United States District Court
14
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?