THATCHER et al v. PERKINS, VAN NATTA, SANDOVE and KELLY, MERDIAN PLASTIC SURGERY CENTER, P.C.
Filing
108
ORDER granting 45 48 and 51 Motions for Summary Judgment and hereby DISMISSES with prej Count I and II of pltfs Amended Complt, and DISMISSES without prej Counts III, IV, V, VI and VII of pltfs Amended Complt. The final ptc set for 7/24/2013 and the jury trial set for 8/12/2013 are vacated. Within 7 days parties shall confer and submit a proposed final judgment regarding disposition and remand. Further, the pending motions 68 83 86 and 97 are DENIED as moot. The Court grants 103 Motion to Withdraw Attorney Appearance of Attorney Robert W. York on behalf of Carly Miller Playford. Signed by Judge Tanya Walton Pratt on 6/28/2013. (CBU)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
PATRICIA THATCHER,
CARLY PLAYFORD, and
BROOKE SNODGRASS,
Plaintiffs,
v.
PERKINS, VAN NATTA, SANDOVE and
KELLY, MERDIAN PLASTIC SURGERY
CENTER, P.C., formerly known as PERKINS
FACIAL PLASTIC SURGERY CENTER AT
MERDIAN, P.C., and PERKINS-VAN
NATTA PLASTIC SURGERY, P.C.,
Defendants.
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Case No. 1:10-cv-01115-TWP-TAB
ENTRY ON MOTIONS FOR SUMMARY JUDGMENT
This matter is before the Court on Defendant Perkins, Van Natta, Sandove and Kelly,
Meridian Plastic Surgery Center, P.C.’s (“the Practice”) Motions for Summary Judgment. The
Practice is seeking summary judgment on Plaintiff Carly Playford’s (“Ms. Playford”) Claims
(Dkt. 45), Plaintiff Brooke Snodgrass’s (“Ms. Snodgrass”) Claims (Dkt. 48), and Plaintiff
Patricia Thatcher’s (“Ms. Thatcher”) (collectively, “Plaintiffs”) Claims (Dkt. 51) of employment
discrimination brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq.1
(“Title VII”). Further, the Practice asks the Court to remand Plaintiffs’ claims brought under
Indiana state law, including invasion of privacy, infliction of emotional distress, commission of a
crime creating civil liability, negligent hiring, supervision and/or retention, and breach of duty to
1
Plaintiffs’ Amended Complaint mentions in paragraph 1 that the action is also brought under the Civil Rights Act
of 1991, 42 U.S.C. § 1981 (§ 1981). Dkt. 9 at 1 ¶ 1. However, § 1981 applies only to claims of racial
discrimination, not gender. Runyon v. McCrary, 427 U.S. 160, 167 (1976). The parties’ only present arguments fall
under Title VII, thus the Court will presume that this is a drafting error. To the extent that Plaintiffs did intend to
bring claims under § 1981, these claims are dismissed.
warn.
For the reasons set forth below, the Practice’s motions (Dkts. 45, 48, and 51) are
GRANTED.
I. BACKGROUND
A.
The Practice
The following material facts are not in dispute.2 Perkins, Van Natta, Sandove and Kelly,
Meridian Plastic Surgery Center, P.C., formerly known as Perkins-Van Natta Plastic Surgery,
P.C., is a plastic surgery medical practice, located in Indianapolis, Indiana that was owned by Dr.
Stephen Perkins and Dr. Bruce Van Natta during the relevant time period. The Practice operated
an esthetics department, commonly referred to as Spa 170 West (“the Esthetics Department”),
which provided skin care services including facials, laser resurfacing and hair removal, chemical
peels, and pre- and post-operation makeovers.
Plaintiffs are all former employees of the
Practice’s Esthetics Department.
1.
Ms. Thatcher’s employment with the Practice
Ms. Thatcher worked as the Esthetics Director for approximately four months, from
October 2008 until she was terminated in February 2009. As Esthetics Director, she was
responsible for general oversight of the Esthetics Department, management of its staff, and
marketing. Ms. Thatcher generally worked Monday through Friday from 8:00 or 9:00 a.m. until
5:00 or 6:00 p.m.
She reported directly to Frank Bowles (“Mr. Bowles”), the Practice
Administrator and supervisor of the Practice’s employees, who reported to Dr. Perkins and Dr.
Van Natta. Ms. Thatcher typically saw Mr. Bowles at least once a day, and described her
working relationship with him as “varied,” noting that sometimes he was very nice and helpful,
2
As discussed in further detail below, Plaintiffs failed to provide a Statement of Material Facts in Dispute section in
their brief in opposition to the Practice’s motions, as required by Local Rule 56-1(b). Therefore, the Court will
accept the facts as set forth by the Practice in accordance with Local Rule 56-1(f).
2
and other times he did not communicate well. She had limited interaction with Dr. Perkins and
Dr. Van Natta, and described her relationship with both doctors as “fine.”
The Practice claims there were issues with Ms. Thatcher’s job performance throughout
her employment, and they received complaints from patients and co-workers about Ms.
Thatcher’s lack of professionalism.
For example, Ms. Thatcher attended the Practice’s
Christmas party in December 2008 where Dr. Van Natta observed that she appeared “excessively
inebriated” and was swearing profusely. She then asked, in jest, “Oh, am I going to get fired?”
She was also overheard referring to Dr. Perkins as “buddy” and admitted to referring to Dr. Amit
Patel, another physician at the Practice, by his first name. In addition to her unprofessional
behavior, Ms. Thatcher also had issues with timeliness and would occasionally arrive late for
work or leave early.
Ms. Thatcher also failed to follow her supervisor’s instructions, and they often disagreed
about the management of the Esthetics Department. Mr. Bowles told Ms. Thatcher to develop a
customer rewards program as a marketing initiative for the Esthetics Department, but she failed
to do so. He attempted to schedule meetings with Ms. Thatcher in January and February 2009 to
discuss her performance and behavior, but Ms. Thatcher never made herself available for these
meetings. On February 18, 2009, Ms. Thatcher met with Dr. Van Natta and expressed concern
that Mr. Bowles might terminate her employment because she had failed to follow his
instructions to establish a rewards program, and complained that she had not had time to develop
the rewards program as requested because she had been handling other issues within the
Esthetics Department. Ms. Thatcher also told Dr. Van Natta that Mr. Bowles had mentioned to
her that there was a camera in the makeup room. In response, Dr. Van Natta assured her that the
Practice did not have a camera in the makeup room, as he had previously found and disconnected
3
the camera in January 2009, after another esthetician reported a similar concern. Prior to this,
Ms. Thatcher was not aware of the camera in the makeup room.
As a result of Ms. Thatcher’s performance issues, Dr. Perkins and Dr. Van Natta, in
consultation with Mr. Bowles, decided to end Ms. Thatcher’s employment. On February 23,
2009, Ms. Thatcher met with Mr. Bowles and Business Administrator Mary Anne Price. Mr.
Bowles informed her that the Practice had received complaints about her performance and thus
had made the decision to terminate her employment.
2.
Ms. Playford’s employment with the Practice
Ms. Playford began working as an Esthetics Coordinator at the Practice in August 2008,
and voluntarily resigned in March 2009. Ms. Playford admits that the decision to end her
employment was her own; she was not told, asked, or forced to resign. She considered the
Practice to be a temporary place to work, that she had outgrown the position and was ready to
move on. Ms. Playford described her working relationship with her supervisors at the Practice as
“normal”, “great” and “pleasant”. Ms. Playford reported directly to Mr. Bowles, and described
her working relationship with him as “friendly.” From late 2008 to early 2009, Ms. Playford
also reported to Ms. Thatcher, and described their working relationship as “normal.” She also
indirectly reported to Dr. Perkins and Dr. Van Natta, and had no complaints about her working
relationship with either of them.
3.
Ms. Snodgrass’s employment with the Practice
Ms. Snodgrass was hired by the Practice as an as-needed receptionist in January 2009. In
December 2008, Ms. Thatcher determined that the Esthetics Department needed assistance
taking telephone calls and scheduling appointments on evenings and weekends. Ms. Thatcher
and Ms. Snodgrass had previously worked together, and Ms. Thatcher called Ms. Snodgrass
4
about her interest in an as-needed receptionist position with the Practice. Ms. Snodgrass reported
directly to Ms. Thatcher, who scheduled her to work as needed. After Ms. Thatcher was
terminated, Ms. Snodgrass believes that Ms. Playford may have scheduled her to work, but she
does not believe anyone else scheduled her to work after Ms. Playford resigned in March 2009.
Ms. Snodgrass last worked for the Practice in April 2009, and had worked fewer than thirty total
hours during her four months of active employment. Since then, Ms. Snodgrass has not been
scheduled to work because she was not needed. The Practice never told her she was fired or that
she should stop coming in. Ms. Snodgrass said she had no problems with anyone at the Practice.
B.
The Practice’s Personnel Policies
The Practice publishes personnel policies in its Personnel Policies Manual, and
distributes the Personnel Policies Manual to each employee. The Personal Policies Manual
contains the Practice’s Policy of Equal Employment Opportunity and Non-Discrimination, Drug
Testing Policy, and Rules for Professional Conduct. The Personnel Policies Manual prohibits
discrimination, harassment, and unlawful retaliation and identifies procedures through which an
employee may report alleged discrimination, harassment, or retaliation. It instructs employees
who believe that they have been subjected to inappropriate behavior to report the conduct
immediately to their supervisor and/or any member of management that they feel comfortable
with. The Practice also offered annual training on these policies. Ms. Playford, Ms. Snodgrass,
and Ms. Thatcher each received a copy of the Practice’s Personnel Policies Manual and signed
an acknowledgment form confirming its receipt.
C.
The Practice’s Use of Security Cameras
For many years, the Practice maintained live video monitors at various sites in its
business that displayed live camera feeds from the building’s three entrances. The Practice
5
installed the system to ensure the safety of its employees and the security of the building; it
allowed employees to see who was intending to enter the building, particularly after hours when
the entrances were locked. Approximately ten years ago, in response to apparent thefts of
narcotics inventory, the Practice installed a second security system, consisting of a camera and a
digital recorder, and focused the concealed camera on the locked narcotics cabinet in the surgery
center. Unlike the live cameras at the building’s entrances, video from this camera fed into the
recorder, and the video was only viewable through the use of particular software. Mr. Bowles
had the software on his laptop and desk top computer and was capable of viewing the recordings.
By reviewing the video recording, the Practice had determined that a family member of the
cleaning crew was unscrewing the hinges on the narcotics cabinet and stealing narcotic drugs
after hours, resulting in conviction of the thief and termination of the drug losses.
In late 2007 and early 2008, the Practice began experiencing thefts in other areas of the
building, including the employer-provided lunches from the kitchen and makeup from the
makeup room. The Practice again contracted with the security company to have two additional
cameras installed, one in the kitchen and one in the makeup room. The setup of the camera was
supervised by Mr. Bowles. Dr. Perkins and Dr. Van Natta approved the installation of the
additional security cameras, but neither knew their exact location. The camera in the makeup
room was located in a ceiling mounted fire-detection device so as to be undetected to persons in
the room. Within weeks of the installation of the cameras, the system recorded an outside
vendor taking food from the kitchen’s refrigerator. Mr. Bowles reviewed the video and showed
a short clip to Dr. Perkins, and the Practice took appropriate action against the vendor. The
Practice is not aware of any thefts of makeup after the installation of the camera in the makeup
room.
6
In December 2008, the Practice began working with Pam Sanders (“Ms. Sanders”),
owner of Sun Spray Tanning, to provide spray tans to the Esthetics Department employees and
patients. Ms. Sanders used a portable three-sided tent to spray tan her clients, and she set it up in
various rooms, including the makeup room. Ms. Snodgrass, Ms. Playford and Ms. Thatcher each
received several spray tans in the makeup room during their employment with the Practice. In
addition, Ms. Playford and Ms. Thatcher had used the makeup room several times to change
clothes, for pre-work and post-work fitness activities, and to apply makeup. The surveillance
camera was disconnected by Dr. Van Natta in January 2009, after another esthetician, Michelle
Hughes, reported concerns about a camera being in the makeup room.
Ms. Playford did not learn about the camera in the makeup room until two months after
she had resigned from the Practice. On May 20, 2009, Ms. Playford visited another esthetician,
Marianne Stephenson Rose, at her home, and Ms. Rose told her that the Practice had a camera in
the Esthetics Department. Ms. Snodgrass also did not learn about the camera until after she was
no longer working at the Practice, as she was informed by Ms. Sanders in May 2009 that there
may or may not have been a camera in the Practice’s makeup room. In November or December
2008, Ms. Thatcher first heard of video surveillance cameras being used at the Practice. She was
not made aware that a camera was in the makeup room until a day or two before she expressed
her concerns to Dr. Van Natta on February 18, 2009, and by then the camera had been removed.
Additional facts will be provided below as necessary.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate if “the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
7
party is entitled to a judgment as a matter of law.” Hemsworth v. Quotesmith.Com, Inc., 476
F.3d 487, 489–90 (7th Cir. 2007). In ruling on a motion for summary judgment, the court
reviews “the record in the light most favorable to the nonmoving party and draw[s] all
reasonable inferences in that party’s favor.” Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir.
2009) (citation omitted). However, “[a] party who bears the burden of proof on a particular issue
may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations,
that there is a genuine issue of material fact that requires trial.” Hemsworth, 476 F.3d at 490
(citation omitted). “In much the same way that a court is not required to scour the record in
search of evidence to defeat the motion for summary judgment, nor is it permitted to conduct a
paper trial on the merits of a claim.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001)
(citation and internal quotations omitted). “[N]either the mere existence of some alleged factual
dispute between the parties . . . nor the existence of some metaphysical doubt as to the material
facts . . . is sufficient to defeat a motion for summary judgment.” Chiaramonte v. Fashion Bed
Grp., Inc., 129 F.3d 391, 395 (7th Cir. 1997) (citations and internal quotations omitted).
III. DISCUSSION
A.
Failure to comply with Local Rule 56-1(b)
Local Rule 56-1(b) states that the non-movant’s response “must include a section labeled
‘Statement of Material Facts in Dispute’ that identifies the potentially determinative facts and
factual disputes that the party contends demonstrate a dispute of fact precluding summary
judgment.” S.D. Ind. Local R. 56-1(b) (emphasis added).
The Statement of Material Facts in
Dispute is not an optional formality; rather, it is intended to alert the court to precisely what
factual questions are in dispute and point the court to the specific evidence in the record that
supports the non-movant’s position on each of these questions. Waldridge v. Am. Hoechst Corp.,
8
24 F.3d 918, 923 (7th Cir. 1994). Strict compliance with Local Rule 56-1 is expected and
required. Cichon v. Exelon Generation Co., L.L.C., 401 F.3d 803, 809 (7th Cir. 2005).
Local Rule 56-1(f) states that the court will assume that the facts as claimed and
supported by the movant are admitted without controversy except to the extent that the nonmovant specifically controverts the facts in its “Statement of Material Facts in Dispute.” S.D.
Ind. Local R. 56-1(f). The consequence of the non-movant’s failure to include a Statement of
Material Facts in Dispute as mandated by the local rules results in an admission of the facts as set
forth by the moving party. Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003). “[A] mere
disagreement with the movant’s asserted facts is inadequate if made without reference to specific
supporting material.” Id. “[W]ithout [a Statement of Material Facts in Dispute] the court should
not have to proceed further, regardless of how readily it might be able to distill the relevant
information from the record on its own.” Waldridge, 24 F.3d at 923. “[I]n imposing a penalty
for a litigant’s non-compliance with Local Rule [56-1], the court [may choose] to ignore and not
consider the additional facts that a litigant has proposed.” Cichon, 401 F.3d at at 810.
Plaintiffs’ brief does not include a “Statement of Material Facts in Dispute” section as
required by Local Rule 56-1(b). Plaintiffs only set forth an additional Statement of Facts in
which they do not clearly identify which material facts are in dispute that would preclude
summary judgment on each of their claims. Dkt. 57 at 2-7. The Court is not required undertake
the exercise of combing through Plaintiffs’ statement of facts to identify discrepancies between
their version of the facts and the facts as presented by the Practice. See United States v. Dunkel,
927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not like pigs, hunting for truffles buried in
briefs.”). .”). Although Plaintiffs have failed to comply with Local Rule 56-1(b), the Court has
scoured the record, as best able, in an attempt to determine Plaintiff’s statements of material facts
9
in dispute. Where unable to make such a determination, the Court has accepted the Practice’s
statement of facts as true for purposes of this motion in accordance with Local Rule 56-1(f).3
B.
Title VII Claims
Title VII makes it unlawful for an employer to “fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s race, color, religion,
sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The Plaintiffs claim that they were subject to
sexual harassment based upon the presence of the surveillance camera in the makeup room, and
retaliation for their complaints about the surveillance camera.
1.
Hostile Work Environment Sex Discrimination Claims
The Plaintiffs’ Amended Complaint states that the Plaintiffs are bringing claims for “sex
discrimination and/or sexual harassment.” Dkt. 9 at 6, ¶ 29. The Supreme Court has held that a
claim of hostile environment sexual harassment is a form of sex discrimination actionable under
Title VII. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986). Plaintiffs only address
hostile work environment sex discrimination related to the presence of the camera in the makeup
room in their response brief, and do not address the Practice’s arguments regarding disparate
treatment discrimination. Thus, the Court will address the Plaintiffs’ sex discrimination claims
as ones for sexual harassment related to the installation of the surveillance camera in the makeup
room, and to the extent that the Plaintiffs do assert disparate treatment claims in their Amended
Complaint, the Court deems them waived.
3
Plaintiffs argue that the Practice’s summary judgment motions should be denied as a sanction for its spoliation of
evidence under Federal Rule of Civil Procedure 37(b)(2)(A) for failure to produce the original hard drive from the
digital recorder. However, the Court and the parties already agreed that the Plaintiffs did not need the video or the
related expert report to address the Practice’s summary judgment motions. Dkt. 43 at 2. Any dispute regarding the
video evidence is inapplicable to these motions, so the sanction of dismissal under Rule 37 would not be
appropriate.
10
In order to prevail on a hostile work environment claim, the Plaintiffs must show that the
conduct at issue “was both subjectively and objectively so severe or pervasive as to alter the
conditions of employment and create an abusive working environment.” Wyninger v. New
Venture Gear, Inc., 361 F.3d 965, 975 (7th Cir. 2004) (quotations omitted). “‘[R]elatively
isolated’ instances of non-severe misconduct will not support a hostile environment claim.”
Saxton v. Am. Tel. & Tel. Co., 10 F.3d 526, 533 (7th Cir. 1993) (quoting Weiss v. Coca-Cola
Bottling Co. of Chi., 990 F.2d 333, 337 (7th Cir. 1993)). The standards used to evaluate sexual
harassment are the same as those used for racial harassment claims. Nat’l R.R. Passenger Corp.
v. Morgan, 536 U.S. 101, 116 n.10 (2002).
To survive summary judgment on a hostile work environment claim, each Plaintiff must
provide sufficient evidence to create a material issue of fact as to four elements: (1) the work
environment was both subjectively and objectively offensive; (2) her gender was the basis for the
harassment; (3) the conduct was severe or pervasive; and (4) there is a basis for the Practice’s
liability. Montgomery v. Am. Airlines, Inc., 626 F.3d 382, 390 (7th Cir. 2010). When evaluating
a hostile work environment claim, courts will not focus on discrete acts of individual employees,
but must consider the entire context of the workplace. Yancick v. Hanna Steel Corp., 653 F.3d
532, 544 (7th Cir. 2011). Not all workplace unpleasantries give rise to liability under federal
civil rights laws, which do not guarantee a perfect work environment. Vore v. Ind. Bell Tel. Co.,
Inc., 32 F.3d 1161, 1162 (7th Cir. 1994).
a.
Ms. Playford’s and Ms. Snodgrass’s sexual harassment claims
Plaintiffs do not present any arguments that Ms. Playford and Ms. Snodgrass satisfy any
of the elements of the prima facie case on their sexual harassment claims. By its nature,
surreptitious surveillance is invasive; however, Ms. Playford and Ms. Snodgrass only argue that
11
the conduct was objectively offensive, and do not cite to any evidence in the record to support
this argument. Regardless, Ms. Playford’s and Ms. Snodgrass’s sexual harassment claims must
fail because neither can satisfy the first prong of her prima facie case. Neither Ms. Playford nor
Ms. Snodgrass had any knowledge about the surveillance camera in the makeup room during
their employment with the Practice, and only learned of it after their employment had ceased.
Behavior of which a plaintiff is not aware cannot render the workplace hostile, because the
plaintiff cannot show that the conduct was both objectively and subjectively offensive. “[I]f the
victim does not subjectively perceive the environment to be abusive, the conduct has not actually
altered the conditions of the victim’s employment, and there is no Title VII violation.” Harris v.
Forklift Systems, Inc., 501 U.S. 17, 21-22 (1993).
The Plaintiffs argue that this case is similar to another “peeping tom” case, Ciesielski v.
Hooters of Am., Inc., No. 03-C-1175, 2004 WL 1699020 (N.D. Ill. July 28, 2004). In Ciesielski,
the plaintiff sued her former employer for sexual harassment, alleging that, while she was
changing from her street clothes into her work uniform in a changing room that was adjacent to
the employee break room, she observed a hole in the wall and felt as though someone were
watching her. The employer patched the hole, but the plaintiff soon observed a second set of
holes in the changing room wall. The plaintiff reported the reappearance of the holes to her
employer, who once again patched them. Several months later, the plaintiff noticed a third set of
holes in the wall, and, again, reported them to her employer. This time, the employer installed
paneling on both sides of the wall. The court denied the employer’s summary judgment motion,
noting that the “[p]laintiff was aware of the appearance and recurrence of the holes in the
changing room wall, that she suspected that the holes were used for peeping purposes, and that
she was upset that additional holes appeared after the original holes were patched.” Id. at *5.
12
Although the plaintiff did not know whether someone actually watched her changing and she did
not know who created the holes, the court determined that a reasonable jury could find that these
circumstances contributed to a hostile work environment. Id. See also Liberti v. Walt Disney
World Co., 912 F. Supp. 1494, 1505 (M.D. Fla. 1995) (denying summary judgment as to hostile
work environment claim where plaintiffs knew that holes existed in a dressing room wall and
that additional holes appeared, and where plaintiffs did not know whether anyone actually
peeped through the holes).
Ms. Playford’s and Ms. Snodgrass’s claims are distinguishable from the plaintiff’s claim
in Ciesielski. In Ciesielski, the plaintiff was upset by the reappearance of the holes in the
changing room wall, which she suspected were being used for peeping activities. Although she
was not aware of who may have actually been viewing her through the holes, if anyone, it was
the repeated reappearance of the holes in the wall that the court found created a sufficient
question of fact for the jury as to whether the activity altered the plaintiff’s working environment
while she was still employed by the defendant. In this case, Ms. Playford and Ms. Snodgrass had
no knowledge whatsoever of the existence of the camera in the makeup room, so there is no way
that its existence could have altered their work environment while they were working for the
Practice. While the possibility of unknowingly being viewed in various states of undress may be
objectively offensive, that alone still does not satisfy the requirement that the victim herself also
be aware the activities and subjectively perceive the environment as offensive. Because neither
Ms. Playford nor Ms. Snodgrass can show that there is a question of material fact as to the first
prong of her prima facie case, the Practice’s motions for summary judgment on Ms. Playford’s
and Ms. Snodgrass’s sexual harassment claims are GRANTED.
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b.
Ms. Thatcher’s sexual harassment claim
Similarly, Ms. Thatcher fails to make any arguments that can satisfy the elements of her
prima facie case on her sexual harassment claim, aside from the argument that surreptitious
video recording of females in a dressing room is objectively offensive. Her sexual harassment
claim also fails for failure to satisfy the elements of her prima facie case. Unlike Ms. Playford
and Ms. Snodgrass, Ms. Thatcher, at some point during her employment at the Practice, did
become aware of the existence of a camera in the makeup room; however, this was only during
the last four days of her employment. Additionally, the Practice states that the camera was
disconnected in January 2009, a month before Ms. Thatcher became aware of its presence, a fact
which the Plaintiffs do not dispute.
The activity that Plaintiffs claim is offensive—the
surreptitious video recording of females in states of undress—ceased prior to Ms. Thatcher being
made aware of its occurrence. Thus, Ms. Thatcher’s sexual harassment claim fails for the same
reason that Ms. Playford’s and Ms. Snodgrass’s claims fail, namely that she was unaware of the
alleged harassing behavior at the time it occurred, and only learned about it after the fact. Ms.
Thatcher does not present any evidence that this knowledge subjectively altered her work
environment during her employment with the Practice.
Even if the Court were to assume that the inappropriate conduct did rise to the level of
actionable harassment under Title VII, Ms. Thatcher’s sexual harassment claim still fails for the
additional reason that she cannot show that there is a basis for holding the Practice liable for the
conduct. Ms. Thatcher argues that the Ellerth/Fargaher affirmative defense has no application
in this case because the action was authorized by management; however, this is only a partial and
incorrect application of the Ellerth/Fargaher rule.
14
In Burlington Industries Inc. v. Ellerth, 524 U.S. 742 (1998), and Fargaher v. City of
Boca Raton, 524 U.S. 775 (1998), the Supreme Court established the rules for employer liability
when the harassing individual is a supervisor. Jackson v. Cnty. of Racine, 474 F.3d 493, 500-01
(7th Cir. 2007). In cases in which the supervisor’s harassment resulted in a tangible employment
action, such as discharge, demotion, or undesirable reassignment, the employer’s vicarious
liability is strict, and no defense is available. Id. at 501. However, if the harassment is not
accompanied by, or does not result in, any tangible employment action, then the employer may
assert an affirmative defense by showing “a) that the employer exercised reasonable care to
prevent and correct promptly any . . . harassing behavior, and b) that the plaintiff employee
unreasonably failed to take advantage of any preventive or corrective opportunities provided by
the employer or to avoid harm otherwise.” Id. (quoting Ellerth, 524 U.S. at 765). Ms. Thatcher
does not assert that the Practice took any tangible employment action against her as a result of
the alleged harassment. While Ms. Thatcher was eventually terminated by the Practice, Ms.
Thatcher only argues that she was terminated in retaliation for complaining about the presence of
the camera. Ms. Thatcher asserts that the consumption of alcohol and use of profanity was not
unusual, there was no deadline for her to implement the rewards program, and no one ever
brought a performance issue to her attention prior to her termination. However, the Practice
asserts, and Ms. Thatcher does not dispute, that poor performance led to her termination. She
does not dispute that she was sometimes tardy or absent, that she consumed alcohol at work
functions, and other unprofessional conduct, or that she failed to implement the reward program.
Further, there is no evidence that her termination was a result of the alleged harassment itself.
Therefore, the Practice is entitled to assert an Ellerth/Fargaher defense.
15
The undisputed evidence demonstrates that the Practice exercised reasonable care to
prevent and promptly correct any allegedly inappropriate behavior. In response to a nearly
identical concern expressed earlier by esthetician Michelle Hughes in January 2009, Dr. Van
Natta immediately investigated, found the camera, and promptly disconnected it. Although Ms.
Thatcher expressed that she believed that she first heard about the possibility of cameras being in
the makeup room in November 2008 (Dkt. 53-1 at 28, 120:8-14), she did not report her concern
to the Practice until her meeting with Dr. Van Natta on February 18, 2009. The Practice cannot
be held liable for allegedly harassing conduct of which it was not made aware. Durkin v. City of
Chi., 341 F3d 606, 612 (7th Cir. 2003). Additionally, despite suspecting that there may have
been a camera in the makeup room, Ms. Thatcher continued to use the makeup room to receive
spray tans. Dkt. 53-1 at 32, 136:11-16. This evidence shows that Ms. Thatcher failed to avail
herself of reporting procedures by informing the Practice of allegedly inappropriate activities,
and also failed to avoid harm by utilizing the room in states of undress despite suspecting that
there was a surveillance camera present. Thus, the Practice has demonstrated that there is no
basis for its liability, and the Practice’s motion for summary judgment on Ms. Thatcher’s sexual
harassment claim is GRANTED.
2.
Retaliation Claims
Plaintiffs next assert claims against the Practice for retaliation. Title VII prohibits an
employer from acting in retaliation against employees who lawfully seek to or actually do
participate in the process of investigating or pursuing a Title VII discrimination claim. 42 U.S.C.
§2000e-3(a). A plaintiff may establish a prima facie case of retaliation using either the direct or
indirect method. Stone v. City of Indianapolis Pub. Util. Div., 281 F.3d 640, 642 (7th Cir. 2002).
Under the direct method, the plaintiff must present direct evidence of (1) a statutorily protected
16
activity; (2) an adverse action taken by the employer; and (3) a causal connection between the
two. Id. at 644. Under the indirect method, the plaintiff must show that (1) she engaged in a
statutorily protected activity; (2) she performed her job according to her employer’s legitimate
expectations; (3) despite her satisfactory job performance, she suffered an adverse action from
the employer; and (4) she was treated less favorably than similarly situated employees who did
not engage in a statutorily protected activity. Id.; Haywood v. Lucent Techs., Inc., 323 F.3d 524,
531 (7th Cir. 2003). Under this method, once the plaintiff establishes these elements, the burden
shifts to the defendant to come forward with a legitimate reason for the adverse employment
action. Haywood, 323 F.3d at 531. Once the defendant presents a legitimate, non-invidious
reason for the adverse employment action, the burden shifts back to the plaintiff to show that the
defendant’s reason is pretextual. Id.
a.
Ms. Snodgrass’s retaliation claim
Ms. Snodgrass does not present any arguments or evidence to prove the elements of her
prima facie case under the direct method of proof, nor does she present any arguments that she
can satisfy all of the elements of her prima facie case under the indirect method of proof. She
only addresses the issue of pretext and whether she suffered an adverse employment action, and
ignores other aspects of the analysis to prove her prima facie case. However, Ms. Snodgrass’s
claim fails on the first prong under both methods of proof because she has not shown that she
engaged in a statutorily protected activity while she was actively working at the Practice. A
“statutorily protected activity” is the act of opposing or complaining about discriminating
treatment in the workplace, or participating in an investigation of discriminatory treatment. See
42 U.S.C. § 2000e-3(a). Ms. Snodgrass admitted in her deposition testimony that she never
made any complaints to anyone at the Practice about surveillance cameras. Dkt. 50-1 at 12,
17
42:3-18. “[A]n employer cannot retaliate when it is unaware of any complaints.” Miller v. Am.
Family Mut. Ins. Co., 203 F.3d 997, 1008 (7th Cir. 2000). Ms. Snodgrass’s filing of a complaint
with the Equal Employment Opportunity Commission (“EEOC”) is arguably protected activity;
however, she did not file this complaint until August 2009, four months after the date she last
worked for the Practice.
Even if the Court were to accept that the filing of the EEOC complaint was a statutorily
protected activity under the Title VII analysis, Ms. Snodgrass still cannot show that retaliation
resulted from this activity. Ms. Snodgrass argues that the Practice retaliated against her in two
ways. First, she argues that the Practice stopped scheduling her to work, and second the Practice
discontinued scheduling her for cancer-related medical treatment previously provided by Dr.
Sandove. However, the Practice had already stopped scheduling Ms. Snodgrass to work several
months prior to her filing an EEOC complaint. Ms. Snodgrass last worked with the Practice in
April 2009, four months before she filed her EEOC complaint. “It is axiomatic that a plaintiff
engage in statutorily protected activity before an employer can retaliate against her for engaging
in statutorily protected activity.” Durkin, 341 F.3d at 614-15 (emphasis added). Because the
Practice ceased scheduling Ms. Snodgrass months prior to her EEOC charge, she has not shown
that the decision not to schedule her was a result of her protected activity.
With regard to the cessation termination of Ms. Snodgrass’s cancer-related medical
appointments, this action is too unrelated to Ms. Snodgrass’s employment to constitute an
adverse employment action.
While Title VII does also protect former employees against
retaliation, former employees may only hold their former employers liable for retaliation that
impinges on their future employment prospects or otherwise has a nexus to employment.
Veprinsky v. Fluor Daniel, Inc., 87 F.3d 881, 891 (7th Cir. 1996). The claims of former
18
employees are inactionable when they are unrelated to the plaintiff’s employment. Id. Ms.
Snodgrass’s medical treatments are in no way related to her employment, either past or future, as
she had been seeing Dr. Sandove since she was two years old. Further, Ms. Snodgrass has not
shown that Dr. Sandove’s inaction in scheduling appointments had anything to do with her filing
an EEOC claim or filing this lawsuit, and Ms. Snodgrass herself has not contacted the doctor to
schedule an appointment. Ms. Snodgrass has not shown that she engaged in a statutorily
protected activity or that she suffered an adverse employment action; therefore, the Court
GRANTS the Practice’s motion for summary judgment on Ms. Snodgrass’s retaliation claim.
b.
Ms. Playford’s retaliation claim
Ms. Playford claims the Practice retaliated against her by interfering with her prospective
employment with Hoffacker Fitness because of her “expression of opposition.” Dkt. 57 at 18.
Ms. Playford also does not argue that she satisfies the elements of her prima facie case using
either the direct or indirect methods. Her retaliation claim fails because Ms. Playford has not
shown that she actually engaged in any statutorily protected activity. Ms. Playford stated in her
deposition that she reported her knowledge about the cameras to the Practice’s spray tan
contractor, Pam Sanders, and this is what she believed caused the Practice to retaliate against her.
Dkt. 47-1 at 36, 154:1-155:3. Her complaint to Ms. Sanders does not constitute protected
activity because the complaint was not made to Ms. Playford’s employer, thus the Practice could
not retaliate against her for it. See Miller, 203 F.3d at 1008. Because Ms. Playford has not
shown that she engaged in any statutorily protected activity, her claim for retaliation fails.
Furthermore, Ms. Playford’s claim fails for the additional reason that she cannot show
that she suffered an adverse employment action. Although in her Amended Complaint Ms.
Playford claims that she was constructively discharged, the evidence shows, and Ms. Playford
19
admits, that she voluntarily resigned prior to learning about the existence of the surveillance
cameras and prior to sharing this information with Ms. Sanders. Ms. Playford argues that the
Practice retaliated against her after she resigned by interfering with her prospective employment
with Hoffacker Fitness. However, she has presented no admissible evidence that her failure to
secure employment with Hoffacker Fitness bore any relationship to her cursory4 complaints
about the camera in the makeup room.
Ms. Playford attempts to show that the Practice retaliated against her by mentioning, but
not citing to, emails between her counsel and the Practice’s prior counsel, in which she claims
that the Practice “actively menaced Ms. Playford with legal action” which interfered with her
employment with Hoffacker Fitness. Dkts. 57 at 18, 57-6, 57-7, and 57-8. However, these emails are inadmissible as evidence to prove the Practice’s liability under Federal Rule of
Evidence 408, as they are communications made in compromise negotiations. The e-mails
clearly indicate that they are “Rule 408 Confidential Compromise Communications” and were
exchanged in attempt to settle the parties’ disputes prior to filing formal legal action. Ms.
Playford cites to no other evidence that would indicate that she suffered an adverse employment
action resulting from the Practice’s conduct.
Therefore, because the Court finds that Ms.
Playford did not engage in a statutorily protected activity and did not suffer an adverse
employment action, the Practice’s motion for summary judgment on Ms. Playford’s retaliation
claim is GRANTED.
c.
Ms. Thatcher’s retaliation claim
Ms. Thatcher presumably attempts to proceed under the direct method of proof, as she
does not argue the elements of her prima facie case under the indirect method. As previously
4
In her deposition, Ms. Playford testified her conversation with Mr. Hoffacker was “very, very brief” and her
complaint regarding Defendants was that there was “possibly” or “could be a camera” in one of the treatment rooms.
There was no conversation or complaint regarding sex or gender discrimination.
20
stated, Ms. Thatcher must show that she engaged in activity protected by Title VII; the Practice
took an adverse employment action against her; and there was a causal connection between the
protected activity and the adverse employment action. Coleman, 667 F.3d at 859. For purposes
of summary judgment, the parties do not dispute that Ms. Thatcher engaged in protected activity
when she complained to Dr. Van Natta about the camera, nor do they dispute that Ms. Thatcher
suffered an adverse employment action when the Practice terminated her employment, thus
satisfying the first and second prongs under the direct method. The parties only dispute whether
Ms. Thatcher has satisfied the causation element under the direct method.
A plaintiff can show causation by showing that engaging in protected activity was the
“substantial or motivating factor” in the employer’s decision to terminate her. Id. (quoting Gates
v. Caterpillar, Inc., 513 F.3d 680, 686 (7th Cir. 2008)). This may be done via direct evidence,
which would entail something akin to an admission by the employer that the termination was
because of the complaint, or by presenting a “convincing mosaic” of circumstantial evidence that
would permit the inference without the employer’s admission. Coleman, 667 F.3d at 860. One
of the methods that the Seventh Circuit has identified to show this “convincing mosaic” is by
showing “suspicious timing, ambiguous statements oral or written, . . . and other bits and pieces
from which an inference of [retaliatory] intent might be drawn.” Id. (quoting Silverman v. Bd. of
Educ. of City of Chi., 637 F.3d 729, 734 (7th Cir. 2011) (additional citations omitted)).
Ms. Thatcher argues that suspicious timing alone substantiates her claim and precludes
summary judgment on her retaliation claim due to the close temporal proximity of two business
days between her complaint and her termination. “Close 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.” Scaife v. Cook Cnty., 446 F.3d 735, 742
21
(7th Cir. 2006) (quoting Lang v. Ill. Dept. of Children & Family Svcs., 361 F.3d 416, 419 (7th
Cir. 2004)). However, “[o]n summary judgment, in particular, ‘it is clear that mere temporal
proximity is not enough to establish a genuine issue of material fact.’” Andonissamy v. HewlettPackard Co., 547 F.3d 841, 851 (7th Cir. 2008) (quoting Wyninger, 361 F.3d at 981).
Ms. Thatcher argues that in her meeting with Dr. Van Natta two business days prior to
her termination, he assured her that she had nothing to worry about job-wise; however, she does
not cite to any admissible evidence to support this assertion. Dkt. 57 at 15. The Practice cites to
evidence, which Ms. Thatcher does not dispute, that one of the reasons that Ms. Thatcher went to
speak with Dr. Van Natta was because she was already concerned that she would be terminated
by Mr. Bowles due to deficiencies in her performance, specifically that she had failed to
implement a customer rewards program. Dkt. 53-1 at 38, 166:15-24. Ms. Thatcher already
knew her job was possibly in jeopardy prior to making her complaint, and “an employee’s
complaint of harassment does not immunize her from being subsequently disciplined or
terminated for inappropriate workplace behavior.” Hall v. Bodine Elec. Co., 276 F.3d 345, 359
(7th Cir. 2002).
In addition, the Practice asserts that Ms. Thatcher cannot show that Dr. Van Natta shared
her complaints about the camera with Mr. Bowles prior to her termination such that it influenced
his decision to recommend that the Practice terminate her employment. “The critical issue . . . is
whether the person who made the decision to terminate [the employee’s] employment was aware
of the discrimination allegations at the time, because absent such knowledge [the employee]
lacks a causal link between the termination and the complaint of discrimination.” Maarouf v.
Walker Mfg. Co., Div. of Tenneco Auto., Inc., 210 F.3d 750, 755 (7th Cir. 2000). Ms. Thatcher
does not argue or present evidence that Mr. Bowles was aware of her complaint about the
22
camera, and instead focuses on Dr. Van Natta’s assurances that her job was not in jeopardy,
despite the fact that Dr. Van Natta was not Ms. Thatcher’s direct supervisor.
The fact that Ms. Thatcher was already concerned about her job prior to making a
complaint about the camera to Dr. Van Natta, and the fact that Ms. Thatcher does not dispute that
this complaint was not shared with Mr. Bowles, does not provide sufficient evidence to support
the inference that the temporal proximity between her complaint and her termination supports an
inference of causation as a matter of law. Ms. Thatcher has failed to present a “convincing
mosaic” of admissible circumstantial evidence required to prove causation and to state a prima
facie case of retaliation under the direct method. Therefore, summary judgment is GRANTED
in favor of the Practice on Ms. Thatcher’s retaliation claim.
C.
State Law Claims
The parties request that if the Court grants all of the Practice’s motions for summary
judgment on Plaintiffs’ Title VII claims, it should remand the Plaintiffs’ state law claims under
Counts III, IV, V, VI and VII of their Amended Complaint (Dkt. 9) to the Hamilton Superior
Court. The Court agrees. “[I]t is the well-established law of this circuit that the usual practice is
to dismiss without prejudice state supplemental claims whenever all federal claims have been
dismissed prior to trial.” Groce v. Eli Lilly & Co., 193 F.3d 496, 501 (7th Cir. 1999).
Ms.
Playford and Ms. Thatcher, along with Ms. Sanders, already have identical claims pending
against the Practice in the Hamilton Superior Court as part of a class action invasion of privacy
case, of which Ms. Snodgrass is a putative class member, so remanding the state law claims in
this case is particularly appropriate under these circumstances. The Court therefore GRANTS
the Practice’s motion to dismiss the Plaintiffs’ state law claims without prejudice.
23
IV. CONCLUSION
While the Court recognizes the seriousness of the accusations that Plaintiffs have brought
against the Practice related to the alleged secret recording of them in their most vulnerable states,
the Plaintiffs cannot show that the Practice’s actions meet the standards for finding that a Title
VII violation has occurred. Nevertheless, Plaintiffs still have the opportunity to pursue their state
law claims against the Practice in state court. The Court therefore GRANTS the Practice’s
Motions for Summary Judgment on Plaintiff Carly Playford’s Claims (Dkt. 45), Plaintiff Brooke
Snodgrass’s Claims (Dkt. 48), and Plaintiff Patricia Thatcher’s Claims (Dkt. 51), and hereby
DISMISSES with prejudice Count I and II of Plaintiffs’ Amended Complaint (Dkt. 9), and
DISMISSES without prejudice Counts III, IV, V, VI and VII of Plaintiffs’ Amended
Complaint (Dkt. 9). The final pretrial conference set July 24, 2013 and the jury trial set August
12, 2013 are VACATED. Within seven days parties shall confer and submit a proposed final
judgment regarding disposition and remand.
The Court GRANTS the law firm of Robert W. York & Associates Motion to Withdraw
as Attorneys for Carly Miller Playford (Dkt. 103), as new counsel has entered an appearance on
Ms. Playford’s behalf. The July 3, 2013 deadline in Dkt. 106 is moot.
Further, the pending Motions in Dkts. 68, 83, 86 and 97 are DENIED as Moot.
SO ORDERED.
06/28/2013
Date: _____________
________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana
24
DISTRIBUTION:
Shana C. Stump
FAEGRE BAKER DANIELS LLP - Indianapolis
shana.stump@faegrebd.com
Amanda L. Shelby
FAEGRE BAKER DANIELS LLP - Indianapolis
amanda.shelby@faegrebd.com
David K. Herzog
FAEGRE BAKER DANIELS LLP - Indianapolis
david.herzog@faegrebd.com
Edward E. Hollis
FAEGRE BAKER DANIELS LLP - Indianapolis
edward.hollis@faegrebd.com
Sarah Jenkins
FAEGRE BAKER DANIELS LLP - Indianapolis
sarah.jenkins@faegrebd.com
James D. Masur, II
ROBERT W. YORK & ASSOCIATES
jmasur@york-law.com
Robert W. York
ROBET W. YORK & ASSOCIATES
rwyork@york-law.com
25
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