MOURNING v. TERNES PACKAGING, INDIANA, INC.

Filing 95

ORDER granting Defendant's 70 Motion for Summary Judgment. This case is dismissed. Final judgment shall enter accordingly. Signed by Judge Sarah Evans Barker on 2/22/2016. (CBU)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

VIRGINIA E. MOURNING,

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Plaintiff,
vs.
TERNES PACKAGING—INDIANA,
INC.,

1:14-cv-00772-SEB-DML

Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This cause is before the court on Defendant’s Motion for Summary Judgment
[Docket No. 70]. On May 5, 2014, Plaintiff Virginia Mourning commenced this action
against Ternes Packaging—Indiana, Inc. (“Ternes”), alleging violations of Title VII of
the Civil Rights Act of 1964 (“Title VII”), 29 U.S.C. § 2000e et seq., the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and the Family and Medical Leave
Act (“FMLA”), 29 U.S.C. § 2601 et seq. On September 21, 2015, the parties stipulated to
a joint dismissal with prejudice of Mourning’s ADEA and ADA claims. Dkt. 65. On
October 2, 2015, Ternes filed its motion for summary judgment, arguing that it is entitled
to judgment on Mourning’s Title VII and FMLA claims. For the reasons detailed herein,
we GRANT Defendant’s motion.

1

Factual Background
Ternes is an Indiana corporation located in Indianapolis. Ternes is a wholly owned
subsidiary of Howard Ternes Packaging Company (“Howard Ternes”), which is
headquartered in Livonia, Michigan. Howard Ternes provides “supply chain management
solutions” to a variety of customers across several locations. Ternes provides those
services to a single customer: Allison Transmission, Inc. (“Allison Transmission”).
Ternes has approximately fifty employees and is managed by a General Manager.
During all times relevant to this action, Eric Frey served as Ternes’s General Manager
and reported to Carrie Brown, the Director of Sales for Howard Ternes in Michigan.
Michael Dergis and Bonnie Verville served, respectively, as Chief Operating Officer and
Vice President of Finance for Howard Ternes in Michigan.
Virginia Mourning began working for Ternes in 1997 as an analyst. In December
1999, she was promoted to Order Administration Manager, a position which she held
until her termination in April, 2013. As Order Administration Manager, Mourning
reported directly to Eric Frey and her duties included improving customer relations,
monitoring customer delivery requirements, resolving internal and external shipping and
procedural issues, and supervising ten Order Administrators. Mourning received yearly
employee performance evaluations in which her performance was graded on a scale from
one to sixty: 1 being considered “Unsatisfactory” and 60 being considered “Clearly
Outstanding.” See Dkt. 80-6. From September 1999 through May 2012, Mourning
received scores of 44, 46, 47, 48, 50, and 51. Id.
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On February 11, 2013, Mourning requested and was granted medical leave under
the Family and Medical Leave Act. On March 20, 2013, while Mourning was on leave,
eight of the ten Order Administrators whom Mourning supervised filed a complaint with
Ternes General Manager Eric Frey. The eight women who filed the complaint alleged
that Mourning “use[d] intimidation and contradiction to control” them, was “verbally
abusive to her backups,” tried to promote gossip amongst them, acted “extremely
emotional” in department meetings, “never” followed through on anything, and disclosed
confidential disciplinary actions in public meetings. Mourning Dep. Ex. 16; Dergis Aff.
Ex. 1; Pierce Aff. Ex. 1; Cook Aff. ¶ 5. The complaining employees claimed that, as a
result of Mourning’s conduct, they suffered from stress, anxiety, tension, frustration, loss
of confidence and self-esteem, lack of desire to report to work, headaches, inability to
concentrate, and low morale and productivity. Id.
In addition to the eight-person group complaint, one of Mourning’s order
administrators, Chrissy Cooks, filed two separate specific written complaints in which
she claimed that Mourning had engaged in “bullying or humiliating sessions” in front of
representatives from Allison Transmission and that during a staff meeting Mourning
publicly revealed that she was “writing up” Cooks. Mourning Dep Exs.17, 18; Dergis
Aff. Exs. 2, 3. Cooks charged that as a result of Mourning’s actions she felt humiliated,
embarrassed, and violated. Id.
On March 29, 2013, Mourning called Eric Frey to notify him that her physician
had cleared her to return to work. Frey informed Mourning that while she was on leave
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her Order Administrators had filed a complaint against her and that upon her return he
needed to speak with her about it.
Sometime between when the complaints were lodged and when Mourning
returned from leave, Howard Ternes Director of Sales Carrie Brown made one of her
regularly scheduled visits to Ternes in Indianapolis. During her visit, Brown met with
Frey, who informed her that Mourning was scheduled to return from leave, but that her
department employees had expressed to him that they did not want her to return to her
former position.
Brown sought to further investigate these claims by contacting Allison
Transmission’s Director of Parts Distribution, Ron Sauer, with whom Mourning worked
closely. Sauer informed her that Mourning’s performance was generally not up to his
standards, specifically stating that Mourning was not using available data systems and
that she had placed him in multiple compromising positions when he did not have the
data he needed to answer his managers’ questions. Brown Dep. 115:17–116:14. He
further informed Brown that he had previously complained of Mourning’s performance
to Eric Frey but had not noticed any improvement, and he did not want Mourning to
return to his department because things had been running better without her. Id. After
reviewing the formal complaint filed by the Ternes Order Administrators and speaking
with both Frey and Sauer, Brown concluded that Mourning’s work performance was “a
very big issue.” Id. at 117:14.

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Mourning returned to work on April 1, 2013 and reported directly to Frey’s office,
where he presented her with complaints and offered her a chance to craft a response. On
April 2, 2013, Mourning sent her response to Frey and to Howard Ternes Vice President
Bonnie Verville, alleging that the Order Administrators’ complaints were “a ruse lead by
an individual or individuals to discredit [her] or their own inadequacies as employees”
and accused Frey of “buy[ing] in to the above coup.” Mourning Dep. Ex. 20. Upon
receipt of Mourning’s response, Howard Ternes’s management launched a two-part
investigation. Eric Frey conducted the first part of the investigation by gathering
background information to determine the validity of the complaints filed by Mourning’s
Order Administrators. Howard Ternes’s Chief Operating Officer and Vice President of
Finance conducted the second half of the investigation by reviewing the complaints,
responses, and additional information uncovered by Frey in his investigation as well as
considering feedback obtained through Brown’s discussion with Allison Transmission
management.
During his investigation into the Order Administrator’s complaints, Frey obtained
emails Mourning had sent to the administrators in which she used callous and
unprofessional language as well as disrespectful references to clients. See Dergis Aff. ¶ 9,
Ex. 4. Frey also collected a rebuttal from the Order Administrators and the statement of
two other Ternes employees who had worked with Mourning who reported some of the
same concerns as the Order Administrators had complained of. See Dergis Aff. Exs. 5–7.
In reviewing the collected materials, Howard Ternes COO Michael Dergis concluded that

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the emails originally proffered in support of the Order Administrators’ complaint
displayed a lack of judgment, unprofessionalism, and questionable management style by
Mourning, but were altogether “pretty weak.” Id. at ¶ 12; Dkt. 80-5. On the other hand,
he believed that the evidence uncovered during Frey’s investigation, including the Order
Administrators’ rebuttal, the statements from former Order Administrators, and the
feedback received from Allison Transmission management, effectively substantiated the
administrators’ complaints. Id. at ¶ 12, 13. As a result of the investigation, Howard
Ternes’s COO Michael Dergis, Vice President of Finance Bonnie Verville, and Director
of Sales Carrie Brown all concluded that Ternes could no longer continue Mourning’s
employment. Dergis Aff. ¶ 14; Brown Aff. ¶ 6.
On April 16, 2013, Dergis, Brown, and Ternes Office Manager Angie Sanders met
with Mourning to inform her that, based on their investigation into the Order
Administrators’ complaint and the feedback they had received from Allison
Transmission, her employment with Ternes was terminated for unprofessional conduct
toward employees and failure to meet Allison Transmission’s performance expectations.
Mourning Dep. 161:9–162:14. Ternes General Manager Eric Frey was also terminated
for his failure to timely inform Howard Ternes management of the March 20, 2013
complaint against Mourning and for his failure to hold Mourning accountable for her
unprofessional conduct and poor performance. Dergis Aff. ¶ 15; Brown Aff. ¶ 5.
On May 5, 2014, Mourning commenced this action against Ternes alleging
violations of Title VII of the Civil Rights Act of 1964 (“Title VII”), 29 U.S.C. § 2000e et
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seq., the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and the Family
and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq. Dkt. 1. On December 3,
2014, Mourning amended her complaint to add claims against Allison Transmission for
defamation and tortious interference in violation of Indiana law. Dkt. 25. On August 24,
2015, we dismissed the claims against Allison Transmission for lack of subject matter
jurisdiction, Dkt. 61, and on September 21, 2014, the parties stipulated to a joint
dismissal with prejudice of Mourning’s claims under the ADEA and the ADA, Dkt. 65.
On October 2, 2015 Ternes filed this Motion for Summary Judgment directed towards
Mourning’s remaining claims of sex discrimination under Title VII and retaliation under
the FMLA. Dkt. 70. Having been fully briefed as of December 14, 2015, Ternes’s motion
is now ripe for ruling by this court.
Legal Standard
Summary judgment requires the Court to find that a trial is unnecessary because
there is no genuine dispute as to any material fact and, instead, the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(a). As the current version of Rule 56
makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the
party must support the asserted fact by citing to particular parts of the record, including
depositions, documents, or affidavits. Fed. R. Civ. P. 56(c)(1)(A). A party can also
support a material fact by showing that the evidence cited does not establish the absence
or presence of a genuine dispute or that the adverse party cannot produce admissible
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evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(B). Affidavits or declarations must
be made on personal knowledge, set out facts that would be admissible in evidence, and
show that the affiant is competent to testify on matters stated. Fed. R. Civ. P. 56(c)(4).
Failure to properly support a fact in opposition to a movant's factual assertion can result
in the movant's asserted fact being considered undisputed, and potentially in the grant of
summary judgment. Fed. R. Civ. P. 56(e).
On summary judgment, a party must also show the Court what evidence it has that
would convince a trier of fact to accept its version of the events. Johnson v. Cambridge
Indus., 325 F.3d 892, 901 (7th Cir. 2003). The moving party is entitled to summary
judgment if no reasonable fact-finder could return a verdict for the non-moving party.
Nelson v. Miller, 570 F.3d 868, 875 (7th Cir.2009). The Court views the record in the
light most favorable to the non-moving party and draws all reasonable inferences in that
party's favor. Darst v. Interstate Brands Corp., 512 F.3d 903, 907 (7th Cir. 2008). It
cannot weigh evidence or make credibility determinations on summary judgment because
those tasks are left to the fact-finder. O'Leary v. Accretive Health, Inc., 657 F.3d 625, 630
(7th Cir.2011). The Court need only consider the cited materials, Fed.R.Civ.P. 56(c)(3),
and the Seventh Circuit Court of Appeals has “repeatedly assured the district courts that
they are not required to scour every inch of the record for evidence that is potentially
relevant to the summary judgment motion before them,” Johnson, 325 F.3d at 898. Any
doubt as to the existence of a genuine issue for trial is resolved against the moving party.
Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010).

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Discussion
I.

Mourning’s Title VII Sex Discrimination Claim
Title VII forbids an employer from discriminating against “any individual with

respect to [her] compensation, terms, conditions, or privileges of employment, because of
such individual’s race, color, religion, sex¸ or national origin.” 42 U.S.C. § 2000e2(a)(1).
Mourning has claimed the Ternes’s termination of her employment was unlawfully
motivated by her sex. Under Title VII, she may prove sex discrimination through direct
or circumstantial evidence, which may be analyzed under either the direct method or the
indirect method set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Coleman v. Donahoe, 667 F.3d 835, 845 (7th Cir. 2012). The direct method allows a
plaintiff to prove discrimination by providing “direct evidence” of intentional
discrimination, or by compiling a “convincing mosaic of circumstantial evidence” of the
same. See Troupe v. May Dep. Stores Co., 20 F.3d 734 (7th Cir. 1994). Given the
difficulty of proving an employer’s intent “directly,” the indirect method offers an
alternative. Under the indirect method a plaintiff may create the presumption that her
employer’s actions were motivated by unlawful discrimination if she can meet the lower
threshold of proving a prima facie case. See Orton-Bell v. Indiana, 759 F.3d 768, 773
(7th Cir. 2014).
Mourning has put forward no direct evidence of sex discrimination in her case,
choosing instead to proceed under the indirect method set forth in McDonnell Douglas
and its progeny. To establish a prima facie case of discrimination under the indirect

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method, Mourning must offer evidence that: (1) she is a member of a protected class, (2)
she met the employer's legitimate employment expectations, (3) she suffered an adverse
employment action, and (4) another similarly situated individual who was not in her
protected class was treated more favorably by her employer. Coleman, 667 F.3d at 845;
Langenbach v. Wal-Mart Stores, Inc., 672 F.3d 792, 801 (7th Cir. 2014).
Once a prima facie case is established, a presumption of discrimination is
triggered. “The burden then must shift to the employer to articulate some legitimate,
nondiscriminatory reason” for its action, “which if believed by the trier of fact, would
support a finding that unlawful discrimination was not the cause of the employment
action.” St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993). When the employer
succeeds in making such a showing, the burden shifts back to the plaintiff, who must
prove by a preponderance of the evidence that the stated reason is a “pretext,” which in
turn permits an inference of unlawful discrimination. McDonnell Douglas, 411 U.S. at
804.
It is undisputed that Mourning has satisfied the first and third prongs under the
indirect method of proof: she is a member of a protected class and suffered an adverse
employment action. As for the second and fourth prongs, Ternes argues that Mourning
lacks sufficient evidence that she was meeting Ternes’s legitimate expectations and that a
similarly situated employee outside of her class was treated more favorably.
To prove that she was meeting Ternes’s legitimate expectations, Mourning points
to her “fifteen years of unblemished work history,” including her work evaluations from
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1999 to May 2012. Her reliance on these evaluations, however, is misplaced. “The
question is not whether she ever satisfied [Ternes’s] expectations, but whether she met
[Ternes’s] expectations at the time she was fired.” See Peters v. Renaissance Hotel
Operating Co., 307 F.3d 535, 545–46 (7th Cir. 2002) (emphasis in original). It is well
established that “earlier evaluations cannot, by themselves, demonstrate the adequacy of
performance at the crucial time when the employment action is taken.” Fortier v.
Ameritech Mobile Commc'ns, 161 F.3d 1106, 1113 (7th Cir. 1998); see Zayas v. Rockford
Mem'l Hosp., 740 F.3d 1154, 1158 (7th Cir. 2014) (holding that plaintiff’s prior
satisfactory performance evaluations did not establish that she was meeting her
employer’s legitimate expectations or overcome her more recent disciplinary issues); see
also Peters v. Renaissance Hotel Operating Co., 307 F.3d 535, 545-46 (7th Cir. 2002)
(holding that the fact that plaintiff received a satisfactory performance evaluation at the
review immediately preceding his termination did not overcome evidence that he had
failed to later meet the employer’s expectations).
Here, the complaints prompting the investigation which led to Mourning’s
eventual termination were filed on March 20, 2013, nine months after her most recent
performance evaluation had been conducted in May 2012. There is no evidence that
Howard Ternes Management was aware of Mourning’s conduct or of her employees’ and
their sole customer’s dissatisfaction with her at any time before they received Mourning’s
email and launched their investigation in April 2013. To the contrary, it appears that prior
to the March 2013 complaints, Ternes General Manager Eric Frey was the only

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supervisor who was actually on notice of Mourning’s allegedly extreme conduct and of
Allison Transmission’s dissatisfaction with her. With regard to the former, the evidence
establishes that Frey met with the Order Administrators on March 1, 2013, during which
session the administrators reported, among other things, that Mourning had threatened
disciplinary actions against two administrators; had used harshly abusive and unwelcome
language with another administrator; had deceitfully taken credit for yet another
administrator’s work; and had publicly disclosed disciplinary action taken against one of
the administrators in order to make an example of her. Dkt. 80-11. With regard to the
latter, Ron Sauer reported to Howard Ternes’s Director of Sales that he had previously
discussed Mourning’s performance with Frey, but that he had not seen any improvement.
Brown Dep. 116:4–5. The evidence further reveals that the performance evaluations on
which Mourning relies were conducted by Frey, who himself had regarded the
administrators’ complaints as “bullshit,” effected no noticeable change in Mourning’s
performance from the perspective of Ron Sauer, and who was eventually terminated in
part because he had failed to hold Mourning accountable for her unprofessional conduct
and poor performance. Dergis Aff. ¶ 15; Brown Aff. ¶ 5. Simply put, evaluations
produced more than nine months prior to the filing of formal complaints and the
subsequent investigations generated by those complaints—which were conducted by an
employee who later lost his job due his own lack of accountability as a manager—do not,
by themselves, establish that Mourning was meeting Ternes’s legitimate expectations.

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Mourning also proffers to the testimony of Sherri Sluss, the manager of another
department at Ternes, and Dennis Nicholas, a representative of Allison Transmission,
who both testified that they had no problems with Mourning’s performance and that they
were surprised to hear of her termination. But, as the Seventh Circuit has held, “the
general statements of co-workers, indicating that a plaintiff's job performance was
satisfactory, are insufficient to create a material issue of fact as to whether a plaintiff was
meeting her employer's legitimate employment expectations at the time she was
terminated.” Peele v. Country Mut. Ins. Co., 288 F.3d 319, 329 (7th Cir. 2002); see also
Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1460 (7th Cir. 1994) (“Our cases ... give
little weight to statements by supervisors or co-workers that generally corroborate a
plaintiff's own perception of satisfactory job performance.”).
Turning from this discussion of Mourning’s proffered evidence of satisfactory job
performance to Ternes’s proffered evidence that she had in fact failed to meet its
legitimate expectations, Mourning attacks the “veracity” and “motivation” of the
complaints made against her by her subordinate employees and her customer contact,
contending that the emails and conversations uncovered in Ternes’s investigation
contained an “absence of anything particularly offensive (let alone termination-worthy).”
Dkt. 78 at 19.
By attacking the evidence on which Ternes grounds its reasons for her
termination, Mourning is in essence claiming that Ternes’s proffered reason is pretextual.
Normally, we first determine whether a plaintiff has established her prima facie before
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examining whether the employer’s reasons for her termination were pretextual. However,
our analysis of such issues is not always linear. In some cases the issue of satisfactory
performance and the question of pretext overlap. Adelman–Reyes v. Saint Xavier Univ.,
500 F.3d 662, 665 (7th Cir. 2007) (“the prima facie case and pretext inquiry often
overlap; we may skip the analysis of the prima facie case and proceed directly to the
evaluation of pretext if the defendant offers a non-discriminatory explanation for its
employment decision”).
To establish pretext, Mourning must demonstrate that “(a) the employer's
nondiscriminatory reason was dishonest; and (b) the employer's true reason was based on
a discriminatory intent.” E.E.O.C. v. Target Corp., 460 F.3d 946, 960 (7th Cir. 2006). “A
plaintiff shows that a reason is pretextual ‘directly by persuading the court that a
discriminatory reason more likely motivated the defendants or indirectly by showing that
the defendants' proffered explanation is unworthy of credence.’ ” Blise v. Antaramian,
409 F.3d 861, 867 (7th Cir. 2005) (brackets omitted) (quoting Texas Dep't of Cmty.
Affairs v. Burdine, 450 U.S. 248, 256 (1981)). In determining whether an employer's
explanation is honest, courts look to the reasonableness of the explanation. See Duncan v.
Fleetwood Motor Homes of Indiana, Inc., 518 F.3d 486, 492 (7th Cir. 2008); Stewart v.
Henderson, 207 F.3d 374, 378 (7th Cir.2000) (“The focus of a pretext inquiry is whether
the employer's stated reason was honest, not whether it was accurate, wise or wellconsidered.”).

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Mourning fails to satisfy her burden with regard to pretext on several grounds.
First, the evidence does not support her claim that the administrators’ complaints lacked
total merit and therefore “Ternes management knew the claims were trumped up pretext.”
Dkt. 78 at 20. Mourning herself admits to committing several of the actions raised by her
employees, including correcting and complaining about the administrators’ grammar and
spelling in front of customers, publicly disclosing disciplinary actions taken against an
administrator, and repeatedly crying during meetings with her supervisor, her
subordinates, and her customer. Mourning Dep. 47:22–24, 50:17–23, 52:16–53, 109:24–
110:20, 14:1–5. Of course, her opinion that this conduct was not “termination-worthy” is
insufficient to establish that Ternes’s reliance on it was pretextual. See Silverman v. Bd.
of Educ. of City of Chicago, 637 F.3d 729, 738 (7th Cir. 2011) (noting that if employee's
disagreements with employer's negative assessment of employee's performance “were
enough to avoid summary judgment and go to trial on an indirect proof case, summary
judgment would become extinct and employer's evaluations would be supplanted by
federal juries' evaluations”).
However, even if Mourning could establish that her subordinates’ complaints were
unfounded and her customer’s requests were ill-conceived, such would not compel the
finding that she was meeting her employer’s expectations or that Ternes’s reliance those
complaints and requests was pretextual. “It is not the court’s concern that an employer
may be wrong about its employee’s performance, or be too hard on its employee. Rather,
the only question is whether the employer’s proffered reason was pretextual, meaning

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that it was a lie.” Ineichen v. Ameritech, 410 F.3d 956, 960 (7th Cir. 2005). Moreover,
the court’s analysis of an employer's legitimate expectations considers more than simply
whether a plaintiff's actual job performance was satisfactory; it allows fact-finders to
consider factors such as customer satisfaction and workplace camaraderie. See Fane v.
Locke Reynolds, LLP, 480 F.3d 534, 540 (7th Cir. 2007) (holding that plaintiff’s prompt
completion of work assignments and lack of prior disciplinary warnings did not
overcome evidence that a client had complained of her communication style and that she
had sent abrasive emails to her co-workers); see also Herron v. DaimlerChrysler Corp.,
388 F.3d 293, 300 (7th Cir. 2004) (holding that plaintiff who performed some aspects of
his job well, but had a confrontational and disrespectful attitude, could not show that he
was meeting his employer's legitimate expectations). The fact that the majority of
Mourning’s subordinate employees, along with her primary customer contact, were all
complaining of her conduct as well as their interactions with her is clear evidence that
Mourning was failing to meet Ternes’s legitimate expectations that she conduct herself in
a professional manner and foster workplace camaraderie, not to mention customer
satisfaction.
Alternatively, Mourning contends that Ternes’s multiple versions of its proffered
nondiscriminatory reason for her termination show that its actions were dishonest and
pretextual. Mourning claims that when she met with Dergis, Brown and Sanders on April
16, 2013, she was told that their investigation “had established she had performance
issues, and Allison Transmission did not want her to work there.” Dkt. 78 at 24 (citing

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Mourning Dep. at 19). Then, when Dergis crafted his interoffice memo, he cited as
Ternes’s basis for Mourning’s termination: (1) the Order Administrators’ complaint, and
(2) input from Ternes’s customer, Allison Transmission, that Mourning was not datadriven, did not embrace change, failed to inform the customer of missed shipments, and
that Allison Transmission did not want her to return. Id. (citing Dkt. 74-7). Now, in this
litigation, Ternes describes its reason for Mourning’s termination as “poor performance
due to her unprofessional conduct toward direct reports and her failure to satisfy
customer expectations.” Id. (quoting Def.’s Br at 10). According to Mourning, this is an
“inconsistent gloss” on Ternes’s originally proffered reasons, which proves that Ternes’s
was actually motivated by animus and/or acted out of discrimination. However,
Mourning has not cited a single case, nor are we aware of any, which holds that a
defendant’s restatement of its proffered nondiscriminatory reasons in order to clarify
those reasons without actually revising them establishes pretext.
Lastly, Mourning claims that in 2010 the subordinate employees of another
Ternes’s Manager, Warren Fish, complained to Eric Frey that Fish was verbally,
emotionally, and sexually harassing his employees, and that he conducted himself in an
anti-productive and unprofessional manner. Dkt. 78 at 4. Mourning contends that in
response to the complaints, Frey offered Fish the option of resigning, being terminated, or
taking a demotion, and then, presumably at Fish’s request, transferred and demoted him
to Ternes’s “traffic department” without ever placing anything in Fish’s HR folder,
allowing Fish to later end his employment with Ternes voluntarily. Id. When a plaintiff

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claims to have been disciplined more harshly than another similarly situated employee
based on a prohibited reason, the plaintiff must demonstrate that the other employee
“engaged in similar conduct without such differentiating or mitigating circumstances as
would distinguish their conduct or the employer's treatment of them.” Antonetti v. Abbott
Labs., 563 F.3d 587, 592 (7th Cir. 2009). “Although precise equivalence is not required,
a plaintiff still needs to show that a comparator employee was treated more favorably by
the same decisionmaker, even though they were both subject to the same standards of
conduct and engaged in similar, but not necessarily identical, conduct.” Zayas v.
Rockford Memorial Hosp., 740 F.3d 1154, 1158 (7th Cir. 2014).
Unfortunately, we have insufficient evidence before us on which to compare
Fish’s conduct and resulting discipline to Mourning’s. The only evidence proffered by
Mourning in support of her claims regarding Fish is her own deposition testimony and
that of Sherri Sluss, each of whom relies almost entirely on conversations she had with
other Ternes employees. Both concede that they lack personal knowledge of when Fish
left Ternes, whether he resigned or was terminated, and whether his actions (and
complaints thereof) were ever reported to Howard Ternes Management in Michigan.
Sluss Dep. 37:4–44:14; Mourning Dep. 94:21–96:10. As a result, we lack any evidence
establishing who filed the complaints against Fish, how many complaints were filed, or
what those complaints alleged. Therefore, we cannot compare them to the complaints
filed against Mourning by eight of her subordinate employees and by her primary
customer contact. There also is a lack of any evidence establishing that the complaints

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filed against Fish were relayed to Howard Ternes Management in Michigan, prompting a
full investigation, as was the case with Mourning. In fact, we have not been informed of
whether Howard Ternes Management was ever made aware of Fish’s behavior or was
ever involved in his disciplinary process. See Little v. Ill. Dept. of Rev., 369 F.3d 1007,
1012 (7th Cir. 2004) (“A similarly situated employee must have been disciplined, or not,
by the same decisionmaker who imposed an adverse employment action on the
plaintiff…[otherwise] [t]he discipline that those employees may, or may not, have
received…sheds no light on the decision to discharge [plaintiff].”). Further, we do not
know whether, as a result of the employee complaints, Fish was in fact demoted,
terminated, or forced to voluntarily resigned; Ternes’s contention is unrebutted that Fish
was simply moved to the traffic department in order to isolate him during the pending
investigation into the complaints filed by his subordinates, and that upon completion of
the investigation, he was forced to resign. See Bahl v. Royal Indem. Co., 115 F.3d 1283,
1293 (7th Cir. 1997) (holding that “the comparatively minimal difference” between
forced resignation and termination is insufficient to support an inference of
discrimination and survive summary judgment).
“Summary judgment is the ‘put up or shut up’ moment in a lawsuit,” meaning
Mourning cannot simply rely on her pleadings or on bare or unfounded testimony to
create genuine issues of fact and defeat summary judgment. Siegel v. Shell Oil Co., 612
F.3d 932, 937 (7th Cir. 2010) (quoting Johnson v. Cambridge Indus., Inc., 325 F.3d 892,
901 (7th Cir. 2003)). Because Mourning has failed to present evidence that she was

19

meeting Ternes legitimate expectations, was similarly situated to a more favorably treated
employee, or that Ternes’s nondiscriminatory reason for her termination was pretextual,
Ternes is entitled to summary judgment on her claim of sex discrimination.
II.

Mourning’s Family and Medical Leave Act Retaliation Claim
Mourning also claims that her termination was retaliatory, in violation of the

Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq. Dkt. 1. To establish
a prima facie case of retaliation in violation of the FMLA, Plaintiff must present evidence
that: (1) she was meeting her employer’s legitimate expectations, (2) she suffered an
adverse employment action, and (3) she was treated less favorably than a similarly
situated employee who did not request FMLA leave. Caskey v. Colgate-Pamlolive Co.,
535 F.3d 585, 592 (7th Cir. 2008).
As explained above, Mourning has failed to present sufficient evidence to
establish that she was meeting Ternes’s legitimate expectations at the time of her
termination. This alone is entitles Ternes to summary judgment on Mourning’s FMLA
claim. However, we note additionally with regard to Mourning’s FMLA claim that she
has failed to name a single Ternes employee with whom she should be compared.
Although Mourning identified Warren Fish, “her male counterpart,” as a comparator with
regard to her Title VII sex discrimination claim, she has neither claimed nor offered any
supporting evidence that Mr. Fish did not request or take leave during any point in his
tenure at Ternes. Absent direct evidence of retaliation, Mourning must establish these two

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prongs of the indirect method under the FMLA. Caskey, 535 F.3d at 592. Accordingly,
Ternes is also entitled to summary judgment on Mourning’s FMLA claim.
Conclusion
For the reasons detailed above, we hereby GRANT Defendant’s Motion for
Summary Judgment [Docket No. 70]. This case is dismissed. Final judgment shall enter
accordingly.

IT IS SO ORDERED.

Date: 2/22/2016

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Distribution:
Rozlyn M. Fulgoni-Britton
FAEGRE BAKER DANIELS LLP (Indianapolis)
[e-mail]
Amanda L. Shelby
FAEGRE BAKER DANIELS LLP - Indianapolis
[e-mail]
Edward E. Hollis
FAEGRE BAKER DANIELS LLP - Indianapolis
[e-mail]
Steven T. Fulk
FULK & ASSOCIATES
[e-mail]
Emmanuel V.R. Boulukos
ICE MILLER LLP
[e-mail]
Michael L. Tooley
ICE MILLER LLP
[e-mail]

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