OREBAUGH v. NSK CORPORATION

Filing 40

ENTRY granting Defendant's 33 Motion for Summary Judgment (see Entry). Signed by Judge Richard L. Young on 4/4/2012. (PG)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

TINA OREBAUGH,
Plaintiff,
vs.
NSK CORPORATION,
Defendant.

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1:11-cv-144-RLY-TAB

ENTRY ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Following her termination, Plaintiff, Tina Orebaugh (“Plaintiff”), filed the present
Complaint against her former employer, NSK Corporation (“NSK”). Plaintiff alleges
that: (1) NSK discriminated against her on the basis of her gender, in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”);
and (2) NSK retaliated against her for exercising her rights under Title VII. NSK now
moves for summary judgment. For the reasons set forth below, the court GRANTS the
motion.
I.

Background
Plaintiff worked at NSK as a setup material handler in the Flange Unit, also known

as Hub 3. (Deposition of Tina Orebaugh (“Plaintiff Dep.”) at 25; (Deposition of Jeff
Thornburg (“Thornburg Dep.”) at 27). The main purpose of a setup material handler is to
coordinate the movement of other material handlers. (Id. at 26). It is undisputed that
Plaintiff was the only female material handler on her unit.
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On June 16, 2010, Plaintiff’s supervisor, Jason McHenry (“McHenry”), asked
Plaintiff to move a drum of daido.1 (Id. at 112). Plaintiff responded, “Why don’t you get
your production setups to do it?” (Plaintiff Dep. at 112). McHenry said that they were
busy; Plaintiff retorted that she was too. (Id.). McHenry told her he would come back in
five minutes and ask her again. (Id. at 112-13). When McHenry did so, she refused
again. (Id. at 113).
McHenry escorted Plaintiff into a conference room. (Id. at 113-14). There, Todd
Gray (“Gray”), a unit coordinator and McHenry’s boss, asked Plaintiff to move the daido.
Plaintiff refused. (Id. at 111). When Gray asked Plaintiff why she refused to move the
daido, she “rambled on,” complaining about certain aspects of her job. (Id.). Gray asked
Plaintiff if she understood how much she made an hour, and that she was not going to
find another job paying her that kind of money anywhere else. (Id.). Plaintiff “lost it”
and told him that he could fire her because she just did not care anymore. (Id. at 114-15).
Plaintiff understood that, pursuant to the employee handbook, she could be discharged for
insubordination for refusing the direct order of a supervisor. (Id. at 115-16) (“Q: And
insubordination includes refusing the direct order of a supervisor?” A: Yes. Q: And isn’t
that what you did? A: Yes.”)).
Gray sent Plaintiff home. (Id. at 115). On June 18, 2010, Cynthia Laurain

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Daido is a liquid coolant added to temper steel in the cooling process. (Thornburg Dep.
at 33). It is contained in a 55 gallon tub, weighing over 400 pounds, and is moved by the use of
a forklift or drum cart. (Id. at 34-37).
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(“Laurain”), the Human Resources Manager, contacted Plaintiff by phone and advised
Plaintiff that she was fired for insubordination. (Id. at 116; 2011 Affidavit of Cynthia
Laurain ¶ 4. See also Employee Handbook (stating that insubordination is a terminable
offense)). The decision to fire Plaintiff was solely Laurain’s, based upon the facts
regarding the June 16 incident as reported to her by Gray and McHenry. (2011 Laurain
Aff. ¶ 4).
All other facts necessary for the resolution of this motion will be discussed in the
Discussion Section where appropriate.
II.

Summary Judgment Standard
Summary judgment is appropriate if the record “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). The motion should be granted only if no rational trier of fact could
return a verdict in favor of the nonmoving party. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
When ruling on the motion, the court views the record and all reasonable
inferences in the light most favorable to the nonmoving party. Heft v. Moore, 351 F.3d
278, 283 (7th Cir. 2003). If the nonmoving party bears the burden of proof on an issue,
that party may not rest on mere allegations or denials in its pleadings, but must set forth
specific facts showing that there is a genuine issue for trial. See FED. R. CIV. P. 56(e) (“If
a party fails to properly support an assertion of fact or fails to properly address another
party’s assertion of fact . . . the court may . . . grant summary judgment . . . .”); Silk v. City
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of Chicago, 194 F.3d 788, 798 (7th Cir. 1999). The moving party need not disprove the
nonmovant’s case; rather, it may prevail by establishing the absence of evidentiary
support in the record for the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986).
III.

Discussion
Plaintiff alleges that her termination for refusing to move the daido was

discriminatory because male material handlers were not required to move the daido, and
when they refused to move the daido, they were not terminated. Plaintiff also alleges that
her termination was in retaliation for engaging in protected activity on June 12, 2010.
The court will begin with Plaintiff’s gender discrimination claim.
A.

Gender Discrimination

Plaintiff argues her gender discrimination claim under the indirect method of
proof. This requires her to first establish a prima facie case of gender discrimination,
which consists of the following four elements: (1) she is a member of a protected class;
(2) she met her employer’s legitimate expectations; (3) she suffered an adverse
employment action; and (4) her employer treated similarly situated males more favorably.
Weber v. Univ. Research Ass’n, Inc., 621 F.3d 589, 593 (7th Cir. 2010); Caskey v.
Colgate-Palmolive Co., 535 F.3d 585, 592 (7th Cir. 2008). Plaintiff’s claim falters on the
fourth element.
Employees are similarly situated if they are “directly comparable to [the plaintiff]
in all material respects.” Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir.
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2002). “This generally requires the plaintiff to show that the comparator had the same
supervisor, was subject to the same employment standards, and had engaged in conduct
similar to that of the plaintiff.” Eaton v. Indiana Dep’t of Corrections, 657 F.3d 551, 556
(7th Cir. 2011) (citing South v. Ill. Envtl. Prot. Agency, 495 F.3d 747, 752 (7th Cir.
2007)); Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir. 2000). The
similarly situated inquiry is “a flexible one that considers ‘all relevant factors, the number
of which depends on the context of the case.’” Humphries v. CBOS West, Inc., 474 F.3d
387, 405 (7th Cir. 2007) (quoting Radue, 219 F.3d at 617). A plaintiff need not show
complete identity with a proposed comparator, but she must show “‘substantial
similarity.’” Id. (quoting Radue, 219 F.3d at 618).
Plaintiff names four male comparators in support of her claim: (1) Jeff Thornburg
(“Thornburg”), (2) Jeff Agnew (“Agnew”), (3) McHenry, and (4) Jerry Kaucher
(“Kaucher”). Plaintiff claims that Thornburg refused a request by line operators to
retrieve daido on at least two occasions, and that both Thornburg and Agnew refused her
own personal requests to move the daido on multiple occasions. (Thornburg Dep. at 40;
Plaintiff Dep. at 92-94). Thornburg’s and Agnew’s refusal to comply with her requests to
move the daido (or any male material handler’s failure to comply with a nonsupervisory
worker’s request) is irrelevant to the present inquiry. According to NSK policy, refusing
a supervisor’s order is an act of insubordination, a terminable offense; refusing a
coworker’s request is not. Moreover, Plaintiff’s attempt to hold herself out as having a
supervisory role over Thornburg or Agnew is not supported by the evidence. She
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testified that if Thornburg or Agnew refused her request to retrieve the daido, she would
tell Kaucher, a supervisor in the plant. (Plaintiff Dep. at 99). Plaintiff testified that she
did not know what happened after that; Thornburg or Agnew may have followed
Kaucher’s request and moved the daido, or they may not have. (Id.). Significantly,
Plaintiff testified that she never personally observed Thornburg and Agnew refuse a direct
order from a supervisor to retrieve the daido, much less three direct orders. (Plaintiff
Dep. at 94-96). The court therefore finds that Thornburg and Agnew are not similarly
situated to Plaintiff.
McHenry and Kaucher held supervisory positions. Plaintiff claims that Sharon
Hutchens (“Hutchens”), a line operator, asked McHenry to obtain daido for her, and he
refused. (Deposition of Sharon Hutchens at 3, 12-13, 29-31). Plaintiff also claims that in
May 2011, Diana Roberts (“Roberts”), another line operator, asked Bonita Bell, a
material handler, to retrieve the daido, and that Bell ignored her request. (Affidavit of
Diana Roberts ¶ 2). When Roberts informed Kaucher of the situation, Kaucher responded
that material handlers only moved daido as a courtesy to line operators, and it was not
part of Bell’s job. (Id. ¶¶ 3, 4).
McHenry and Kaucher did not hold the same position as Plaintiff; they held
supervisory positions, she did not. In addition, McHenry’s alleged refusal to obtain the
daido for Hutchens, a line operator, is not substantially similar to the facts in this case,
because a subordinate has no authority to tell a superior what to do. To the extent
Plaintiff relies upon Robert’s affidavit to show that moving the daido was outside of her
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job description, Plaintiff’s reliance is misplaced. The events addressed in Robert’s
affidavit occurred approximately a year after the events giving rise to Plaintiff’s
termination occurred, and therefore, have no relevance to Plaintiff’s case. Because
McHenry and Kaucher held supervisory positions, and because McHenry and Kaucher
did not refuse a direct order from a supervisor, they are not similarly situated to Plaintiff.
Plaintiff therefore failed to produce evidence of a male co-worker who engaged in similar
misconduct.
Plaintiff relies on Bellaver v. Quanex Corp. to support her argument that the fourth
element of her prima facie case may be satisfied by a showing that, following her
termination, her job duties were absorbed by Thornburg. 200 F.3d 485 (7th Cir. 2000).
The facts in Bellaver dealt with a company that claimed to have laid off a single
employee due to a reduction in force. The Bellaver Court held that in a single-discharge
case, the subject of a “mini-RIF” could create an inference of discrimination without
evidence that a similarly situated employee was treated more favorably, if she could show
that employees outside of the protected class absorbed the plaintiff’s duties. Id. at 495.
Bellaver is inapplicable to this case because Plaintiff does not suggest that NSK was
engaged in a reduction in force when Plaintiff was discharged. The “similarly situated”
proof requirement is the appropriate element to use in this case. Accordingly, the court
finds Plaintiff cannot establish a prima facie case of sex discrimination.
Even if Plaintiff could establish a prima facie case, she would still have to show
that NSK’s legitimate and non-discriminatory reason for terminating her – her refusal to
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comply with a direct order from her supervisor and her supervisor’s supervisor – was a
pretext “and that her gender was the real reason she was fired.” Weber, 621 F.3d at 593.
In support of her pretext argument, Plaintiff claims that: (1) similarly situated males were
treated more favorably, (2) Plaintiff was held to a higher standard than her peers, (3)
McHenry and Gray expected Plaintiff to refuse to move the daido because she had
refused to do so in the past, and (4) McHenry and Gray knew it was physically impossible
for her to move the daido.
The first two reasons cited above can be easily dispelled. For the reasons
previously stated, similarly situated males were not treated more favorably. Moreover,
there is no evidence in the record to support her assertion that she was held to a higher
standard. Plaintiff’s claim that McHenry and Gray knew she would refuse their request to
move the daido because she had refused to move it in the past, is speculative at best. No
supervisor “expects” his subordinate to disobey a direct order just to fire the subordinate.
In addition, Plaintiff admitted that other material handlers, like Thornburg and Jeff
Andrew, moved the daido when necessary to keep the factory lines working. (Plaintiff
Dep. at 94-96, 98; see also Thornburg Dep. at 40 (“If that machine operator runs out of
daido and that line begins to go down, then I’ll drop whatever I’m doing and go get the
daido to keep that line running.”)). Lastly, Plaintiff’s claim that moving the daido was
physically impossible for her due to her stature, is spurious. At no time on June 16, 2010,
did Plaintiff inform her supervisors that she could not physically move the daido. In fact,
Plaintiff’s stated reason for refusing to move the daido on June 16 was that it was not her
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job, she was busy, and she was tired of doing dirty jobs. (Id. at 112-15, 154). Plaintiff’s
arguments fail to establish that NSK’s legitimate and non-discriminatory reason for
terminating her was a fabrication. Without such evidence, summary judgment is
appropriate.
B.

Retaliation
For purposes of her retaliation claim, Plaintiff proceeds under the direct method of

proof, which requires her to show that: (1) she engaged in protected activity; (2) she
suffered an adverse employment action; and (3) there is a causal connection between the
protected activity and the adverse action. Tomanovich v. City of Indianapolis, 457 F.3d
656, 663 (7th Cir. 2006).
Plaintiff claims that four days prior to her termination, she complained of gender
discrimination to Mark Bolhuis (“Bolhuis”), a material control manager. Plaintiff
informed Bolhuis that she thought she was being “discriminated against.” (Plaintiff Dep.
at 52). She complained that she did not like the way she was treated in the back unit, she
did not appreciate the types of jobs she was given, she needed more help from the men
who, in her opinion, were just sitting around or talking on their cell phones, and was tired
of being everyone’s “personal bitch.” (Plaintiff Dep. at 51-57, 152-53).
To the extent Plaintiff engaged in protected activity (which is a matter of dispute
since she only complained of “discrimination”), there is no evidence that McHenry or
Gray, or that the ultimate decisionmaker, Laurain, knew about Plaintiff’s alleged
complaint of discrimination. That alone dooms her claim. See Stephens v. Erickson, 569
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F.3d 779, 788 (7th Cir. 2009) (“Clearly, a superior cannot retaliate against an employee
for a protected activity about which he has no knowledge.”) (citations omitted).
Accordingly, summary judgment is likewise appropriate on Plaintiff’s retaliation claim.
IV.

Conclusion
The admissible evidence of record, viewed in the light most favorable to the

Plaintiff, does not raise a genuine issue of material fact regarding Plaintiff’s claims for
gender discrimination and retaliation. Defendant’s Motion for Summary Judgment
(Docket # 33) is therefore GRANTED.

SO ORDERED this 4th day of April 2012.

__________________________________

RICHARD L. YOUNG, CHIEF JUDGE
RICHARD L. District Court
United States YOUNG, CHIEF JUDGE
United States District Court
Southern District of Indiana
Southern District of Indiana

Electronic Copies to:
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BOSE MCKINNEY & EVANS, LLP
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KITCH DRUTCHAS WAGNER VALITUTTI & SHERBROOK
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HASKIN & LARUE
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Andrew M. McNeil
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