GRUBB v. COOK MEDICAL TECHNOLOGIES, LLC et al
Filing
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ORDER - Presently pending before the Court is a Motion for Summary Judgment filed by Defendants Cook Medical Technologies, LLC1 ("Cook") and Penny King. [Filing No. 37 .] Plaintiff Marsha Grubb alleges that Cook terminated her employmen t in violation of the Americans with Disabilities Act and state law. [Filing No. 1 .] She further alleges that Ms. King battered her, causing Ms. Grubb severe emotional distress. [Filing No. 1 .] Defendants now seek summary judgment on all claim s, arguing that Ms. Grubb failed to produce any evidence in support of her claims. [Filing No. 38 at 2.] For the reasons stated in this Order, the Court grants the Motion for Summary Judgment. [Filing No. 37 .] For the reasons described above, Defendants are entitled to summary judgment on all of Ms. Grubb's claims. Accordingly, the Court GRANTS Defendants' Motion for Summary Judgment. 37 Final judgment shall issue by separate order. (SEE ORDER). Signed by Judge Jane Magnus-Stinson on 5/29/2018. (APD)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MARSHA L. GRUBB,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
COOK MEDICAL TECHNOLOGIES LLC,
and PENNY KING
Defendant.
No. 1:17-cv-01086-JMS-MJD
ORDER
Presently pending before the Court is a Motion for Summary Judgment filed by Defendants
Cook Medical Technologies, LLC1 (“Cook”) and Penny King. [Filing No. 37.] Plaintiff Marsha
Grubb alleges that Cook terminated her employment in violation of the Americans with
Disabilities Act and state law. [Filing No. 1.] She further alleges that Ms. King battered her,
causing Ms. Grubb severe emotional distress. [Filing No. 1.] Defendants now seek summary
judgment on all claims, arguing that Ms. Grubb failed to produce any evidence in support of her
claims. [Filing No. 38 at 2.] For the following reasons, the Court grants the Motion for Summary
Judgment. [Filing No. 37.]
I.
STANDARD OF REVIEW
A motion for summary judgment asks 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
In its brief in support of summary judgment, Cook states that Ms. Grubb “incorrectly
identified…Cook Medical Technologies, LLC” as the defendant in this action. Cook claims that
the “correct name” of Ms. Grubb’s employer is Cook Incorporated. [Filing No. 38 at 1.] Cook
does not make a motion to the Court to substitute the alleged proper party, so the Court simply
notes here Cook’s clarification.
1
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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 fact by showing that the
materials cited do not establish the absence or presence of a genuine dispute or that the adverse
party cannot produce admissible 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 fact being considered undisputed, and potentially in the grant of
summary judgment. Fed. R. Civ. P. 56(e).
In deciding a motion for summary judgment, the Court need only consider disputed facts
that are material to the decision. A disputed fact is material if it might affect the outcome of the
suit under the governing law. Williams v. Brooks, 809 F.3d 936, 941-42 (7th Cir. 2016). In other
words, while there may be facts that are in dispute, summary judgment is appropriate if those facts
are not outcome-determinative. Montgomery v. American Airlines Inc., 626 F.3d 382, 389 (7th
Cir. 2010). Fact disputes that are irrelevant to the legal question will not be considered. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
On summary judgment, a party must show the Court what evidence it has that would
convince a trier of fact to accept its version of the events. Gekas v. Vasilades, 814 F.3d 890, 896
(7th Cir. 2016). 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
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all reasonable inferences in that party’s favor. Skiba v. Illinois Cent. R.R. Co., 884 F.3d 708, 717
(7th Cir. 2018). It cannot weigh evidence or make credibility determinations on summary
judgment because those tasks are left to the fact-finder. Miller v. Gonzalez, 761 F.3d 822, 827
(7th Cir. 2014). 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. Grant v. Trustees of Indiana University, 870 F.3d 562, 573-74 (7th
Cir. 2017). 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).
II.
BACKGROUND
Ms. Grubb has not responded to Cook’s Motion, and the time to do so has passed. The
Court may therefore summarily rule on Cook’s Motion, pursuant to Local Rule 7-1(c)(4), as Ms.
Grubb’s silence results in waiver of any argument in opposition to Cook’s Motion. See Bonte v.
U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010) (“Failure to respond to an argument…results
in waiver.”) Furthermore, Ms. Grubb’s lack of response means that she concedes Cook’s version
of events, and the Court resolves the Motion on the evidence submitted by Cook. See Smith v.
Lamz, 321 F.3d 680, 683 (7th Cir. 2003) (“Failure to respond by the nonmovant as mandated by
the local rules results in an admission.”). The Court continues to apply the above-articulated
summary judgment standard, but Ms. Grubb’s failure to comply with the Local Rules in this
respect “reduc[es] the pool” from which the facts and inferences may be drawn. See Smith v.
Severn, 129 F.3d 419, 426 (7th Cir. 1997).
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A. Cook’s Policies and Procedures
Cook is a manufacturer of medical devices located in Bloomington, Indiana. [Filing No. 1
at 3.] Cook contends that it is an equal opportunity employer and does not discriminate against its
employees on the basis of disability. [Filing No. 38 at 2.] It has supplied portions of its employee
manual detailing its anti-discrimination policies.
The employee manual contains an Equal
Employment Opportunity policy which provides that:
Cook is an equal opportunity employer. We believe in the dignity and worth of
every individual. We will not discriminate against or favor any employee or
applicant, or make any decision or take any action, because of race, color, religion,
sex, national origin, age, sexual orientation, disability, veteran status, or any other
characteristic protected by law.
[Filing No. 37-3 at 2 (emphasis added); Filing No. 37-6 at 6; see Filing No. 37-2 at 5.]
Additionally, Cook’s employee manual also includes an avenue by which employees may
communicate work-related concerns to the appropriate individuals:
Cook encourages employees to communicate with management concerning
work- related issues. If an employee has a work-related issue, the employee
should bring it to the attention of a personnel advisor, a member of management,
or Human Resources. Cook will take the appropriate steps to investigate and
resolve the issue.
[Filing No. 37-6 at 8.] Cook’s employee manual also provides for the following progressive
disciplinary process:
When a rule or policy has been broken, or an employee has exhibited
unacceptable behavior, disciplinary action to prevent a recurrence is required.
Cook generally recognizes four steps in the disciplinary process:
1.
2.
3.
4.
First occurrence: documented verbal warning
Second occurrence: written warning
Third occurrence: formal written warning
Fourth occurrence: suspension without pay or termination
Management reserves the right, at its discretion, to bypass any of the above steps
and utilize a higher level of discipline for any given occurrence or accumulation
of occurrences. The severity of discipline will depend upon the severity of the
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occurrence as well as the employee’s work history.
[Filing No. 37-6 at 31-32.]
B. Ms. Grubb’s Employment at Cook
Ms. Grubb began work on September 23, 2013 as an assembler in the dilators department,
a position she held throughout her employment at Cook. [Filing No. 37-1 at 6-8; Filing No. 374.] Ms. Grubb’s employment was at-will and, therefore, Cook could terminate her employment
“at any time and for any reason, with or without cause or notice.” [Filing No. 37-4 at 1.] At the
time of her hiring, Ms. Grubb signed an Acknowledgement of Receipt of an Agreement of Cook
Employee Manual. [Filing No.37-3 at 1; Filing No. 37-5.] Cook employed “group leaders,” who
were responsible for supervising the employees on the production floor and reporting infractions
to the management team. [Filing No. 37-2 at 3.] Group leaders did not have the ability to discipline
the employees they supervised or recommend disciplinary actions against them. [Filing No. 37-2
at 3.] Ms. Grubb’s group leader was Ms. King. [Filing No. 37-1 at 10.]
As an assembler, Ms. Grubb would “cut [dilators] to length” and “tip them per the
specifications” given. [Filing No. 37-1 at 7.] “Tipping” is a process that can be performed by
hand or machine, in which the assembler places the dilators into a mold and applies heat to
manipulate them into the correct size. [Filing No. 37-1 at 7-10.] Ms. Grubb originally started as
a hand tipper and was moved by Ms. King to a tipping machine on March 31, 2014. [Filing No.
37-1 at 10, 19; Filing No. 37-2 at 12; Filing No. 37-7 at 1.]
C. Ms. Grubb’s Disability and Filing of her Worker’s Compensation Claim
Ms. Grubb alleges that she suffers from cervical radiculitis, which is an ergonomic injury
to the neck and shoulders. [Filing No. 1 at 3.] Ms. Grubb states that her symptoms began on
January 21, 2015, when she woke up “with [her] chin on [her] chest” and “could not hold [her]
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head up.” [Filing No. 37-1 at 19-20.] She describes the pain as “a tightness, a numbness and an
achiness that runs up the back . . . of [her] neck and across [her] shoulders.” [Filing No. 37-1 at
19.] Ms. Grubb alleges that “sitting at work working” would make her symptoms worse, due to
“the repetitive motion of always looking down.” [Filing No. 37-1 at 20.] Ms. Grubb’s head would
be in the same “looking-down” position both as a hand tipper and on the tipping machine. [Filing
No. 37-1 at 20-21.] Ms. Grubb also testified that it was possible for someone to mistakenly think
she was sleeping due to the position of her head while she worked. [Filing No. 37-1 at 28-30;
Filing No. 36.] On February 11, 2015, several employees noticed that Ms. Grubb was having
issues with her neck, and Tony Koontz, a manager for Cook, sent Ms. Grubb to Cook’s human
resources department to submit worker’s compensation paperwork. [Filing 37-1 at 23-24; Filing
No. 37-7 at 1.] Ms. Grubb filled out paperwork for her worker’s compensation claim on February
13, 2015. [Filing No. 37-7 at 1.] Ms. Grubb ultimately received worker’s compensation benefits
totaling approximately $22,000.00. [Filing No. 37-1 at 26.]
On March 10, 2015, Ms. Grubb submitted a “reasonable accommodation request” for an
ergonomic chair for her work station. [Filing No. 37-7 at 2.] Cook provided Ms. Grubb with the
requested chair, and Ms. Grubb did not request any further accommodations from Cook for her
neck condition. [Filing No. 37-1 at 25-26.] On September 17, 2015, Ms. King temporarily moved
Ms. Grubb back to hand tipping. [Filing No. 37-1 at 12-13; Filing No. 37-7 at 2.] This exacerbated
Ms. Grubb’s condition, and she was moved back to machine tipping after submitting a medical
letter. [Filing No. 37-1 at 12-13; Filing No. 37-7 at 2-3.]
D. Ms. Grubb’s Disciplinary Issues and Termination
On October 12, 2015, Ms. King witnessed Ms. Grubb sitting at her work station with her
eyes closed and believed her to be asleep. [Filing No. 37-2 at 17.] As a result, Ms. King reported
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Ms. Grubb to Kim Nethery, Ms. King’s supervisor. [Filing No. 37-2 at 11, 17.] Cook then issued
Ms. Grubb a verbal warning stating that “[o]n 10/12/2015 Penny King (GL) caught Marsha with
her eyes closed and told her to wake up,” and indicating to Ms. Grubb that she “[m]ust keep eyes
open.” [Filing No. 37-3 at 1; Filing No. 37-10.] The next day, on October 13, 2015, Ms. King
again saw Ms. Grubb asleep at her tipping machine. [Filing No. 37-2 at 20-21.] Ms. Grubb was
reprimanded through an informal written warning on October 14, 2015 stating, “On 10/13/2015,
Marsha was seen and addressed by Penny King to open her eyes. Marsha was setting [sic] at her
tipping machine with her eyes closed.” [Filing No. 37-3 at 2; Filing No. 37-11.] The informal
written warning advised Ms. Grubb that she “[m]ust keep eyes open at all times while in
production.” [Filing No. 37-11.]
On November 2, 2015, Ms. King again saw Ms. Grubb asleep at the tipping machine and
reprimanded her through a formal written warning. [Filing No. 37-3 at 2; Filing No. 37-12.] This
occurred again on November 23, 2015, and Cook issued her another written warning and
suspended her for three days. [Filing No. 37-3 at 2; Filing No. 37-13; see Filing No. 37-2 at 23.]
Three weeks later, on December 15, 2015, Ms. King again saw Ms. Grubb “with her eyes closed
and appear[ing] to be sleeping” while sitting at her tipping machine. [Filing No. 37-3 at 2; Filing
No. 37-14.] This was Ms. Grubb’s fifth and final violation for sitting at her tipping machine with
her eyes closed, and Cook, in accordance with its disciplinary procedures, decided to terminate her
employment. [Filing No. 37-9; Filing No. 37-14.]
Ms. Grubb denies that she was ever asleep while on the job, and testified that she could not
remember a time when she was either hand tipping or using the tipping machine with her eyes
closed for an extended period of time. [Filing No. 37-1 at 27.] Ms. King genuinely believed Ms.
Grubb was sleeping on each of the occasions that led to Ms. Grubb’s termination. [Filing No. 37-
7
2 at 27-28.] On each occasion, she would say Ms. Grubb’s name loudly and would observe Ms.
Grubb at her work station long enough to confirm that she was asleep. [Filing No. 37-2 at 28.]
Sometimes Ms. Grubb would respond after Ms. King said her name once, and sometimes she did
not until after Ms. King said her name several times. [Filing No. 37-2 at 30.] Ms. Grubb conceded
that, even though she at times heard Ms. King say her name, she failed to respond to Ms. King.
[Filing No. 37-1 at 31.] Ms. King also observed Ms. Grubb sleeping on several other occasions
and chose not to report her to Ms. Nethery or anyone else at Cook. [Filing No. 37-2 at 29.]
E. Battery Allegations
Ms. Grubb alleges in her Complaint that “[s]ometime on or about March 16, 2015, [Ms.
King] had put her hand under Plaintiff’s chin and the other hand on the back of Plaintiff’s head,
‘pulled her head up’ and said to the Plaintiff: ‘hold your head up’!” [Filing No. 1 at 4; Filing No.
37-1 at 36.] Ms. Grubb alleges that Ms. King did the same thing again on April 14, 2015. [Filing
No. 1 at 4; Filing No. 37-1 at 38-39.] Ms. Grubb was not injured and did not seek medical
treatment as a result of Ms. King’s alleged touching of her head on these occasions. [Filing No.
37-1 at 38-40.] While Ms. Grubb states that she contacted human resources at Cook after these
incidents and left a message, there are no records of these calls, human resources did not call Ms.
Grubb back, and Ms. Grubb did not follow up with them about her messages. [Filing No. 37-1 at
40-41.] Additionally, Ms. Grubb never reported these incidents to anyone at Cook, including Ms.
Nethery or Ms. Nethery’s supervisor, Mr. Koontz. [Filing No. 37-1 at 40-41.]
Ms. Grubb filed a charge with the Equal Employment Opportunity Commission (“EEOC”)
on August 2, 2016, alleging that she was terminated as a result of her disability in violation of the
Americans with Disabilities Act, 42 U.S.C. § 12010, et seq. (“the ADA”). [Filing No. 37-15.] The
EEOC issued Ms. Grubb a Dismissal and Notice of Suit Rights letter on January 10, 2017. [Filing
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No. 37-16.]
Ms. Grubb filed the instant Complaint against Cook and Ms. King on April 5, 2017. [Filing
No. 1.] She asserts the following claims: (1) wrongful termination against Cook in violation of
the ADA; (2) retaliatory discharge under state law against Cook; (3) negligent supervision under
state law against Cook for failing to adequately and properly supervise Ms. King; and (4) state law
battery and intentional infliction of emotional distress claims against Ms. King and Cook.
Defendants move for summary judgment on all of Ms. Grubb’s claims. [Filing No. 37.] The Court
addresses each in turn.
III.
DISCUSSION
A. ADA Claim
Ms. Grubb alleges that she was terminated due to her disability and that Cook’s stated
reasons for her termination were pretextual. [Filing No. 1 at 5-6.] Cook argues that Ms. Grubb
was not terminated because of her disability, and that the evidence shows that Ms. Grubb was
terminated for failing to meet Cook’s legitimate expectation that employees remain awake while
at work. [Filing No. 38 at 10.]
The ADA prohibits discrimination “against a qualified individual on the basis of disability
in regard to job application procedures, the hiring, advancement, or discharge of employees,
employee compensation, job training, and other terms, conditions, and privileges of employment.”
42 U.S.C. § 12112(a). Under the ADA, employers may not discriminate against employees that
have either actual disabilities, Id. § 12102(1)(A), or perceived disabilities, Id. § 12102(1)(C).
“[A]ll discrimination claims present the same basic legal inquiry: At the summary-judgment stage,
the proper question to ask is ‘whether the evidence would permit a reasonable factfinder to
conclude that the plaintiff's race, ethnicity, sex, religion, or other proscribed factor caused the
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[plaintiff's] discharge or other adverse employment action.’” Ferrill v. Oak Creek-Franklin Joint
School District, 860 F.3d 494, 499 (7th Cir. 2017) (quoting Ortiz v. Werner Enterprises, Inc., 834
F.3d 760, 765 (7th Cir. 2016)).
A plaintiff can put forward evidence of discrimination in the form of direct or indirect
proof. Dickerson v. Bd. of Trustees of Cmty. Coll., 657 F.3d 595, 601 (7th Cir. 2011) In cases that
lack sufficient direct evidence, courts may apply the burden-shifting analysis set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The McDonnell-Douglas framework
is “a formal way of analyzing a discrimination case when a certain kind of circumstantial
evidence—evidence that similarly situated employees not in the plaintiff’s protected class were
treated better—would permit a jury to infer discriminatory intent.” Ferrill, 860 F.3d at 499-500
(quoting Smith v. Chicago Transit Auth., 806 F.3d 900, 904 (7th Cir. 2015)).
A plaintiff need not show that she was meeting her employer’s expectations “when [s]he
alleges that other employees were also not meeting the employer’s expectations but the employer
selectively punished the plaintiff, or punished the plaintiff more severely, for discriminatory
reasons.” McNair v. Bonaventura, 46 Fed. Appx. 849, 852 (7th Cir. 2002). If the plaintiff meets
that burden, then the employer must “set forth a legitimate nondiscriminatory reason for [the
adverse employment action] which if believed by the trier of fact, would support a finding that
unlawful discrimination was not the cause of the employment action.” Nichols v. Southern Illinois
University-Edwardsville, 510 F.3d 772, 783 (7th Cir. 2007) (citation and quotation omitted). If
the employer satisfies its burden, the burden shifts back to the plaintiff who must then prove that
the proffered reason was pretextual. Walker v. Glickman, 241 F.3d 884, 889 (7th Cir. 2001)
(citation omitted).
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Cook argues that, considering all direct and indirect evidence, Ms. Grubb cannot establish
an ADA violation. [Filing No. 28 at 9-10.] The Court stresses that because Ms. Grubb has not
responded to the Motion for Summary Judgment, she has waived all argument in opposition, and
she has conceded Cook’s version of the facts as being true.
The Court sees no “smoking gun” evidence of discrimination in this case, so it turns to the
McDonnell-Douglas framework to evaluate the claims put forward by Ms. Grubb. Under that
framework, Ms. Grubb may establish a prima facie case of discrimination by showing that: (1)
she is disabled under the ADA; (2) she was meeting her employer’s legitimate employment
expectations; (3) she suffered an adverse employment action; and (4) similarly situated employees
without a disability were treated more favorably. Dickerson, 657 F.3d at 601.
Cook does not dispute the first and third elements of the test—that Ms. Grubb suffers from
a disability, or that her termination constituted an adverse employment action. The Court therefore
turns to the second element of the framework—whether Ms. Grubb was meeting her employer’s
legitimate employment expectations.
Cook argues that it has a legitimate expectation that employees remain awake while
working. [Filing No. 38 at 10.] Courts in the Seventh Circuit have routinely held that staying
awake at work is a legitimate employment expectation, and this Court agrees. See, e.g., Green v.
U.S. Steel Corp., 2006 WL 2949531, *5 (N.D. Ind. Oct. 12, 2006) (citing Coco v. Elmwood
Care, 128 F.3d 1177, 1179 (7th Cir. 1997)) (finding that plaintiff did not meet his employer’s
legitimate expectations when he fell asleep on the job); Perry v. Pierce Chem. Co., 2002 WL
992658, *1 (N.D. Ill. May 14, 2002) (“Sleeping on the job does not meet an employer’s legitimate
expectations.”). The undisputed evidence shows that Ms. Grubb was disciplined on four separate
occasions for sleeping, or appearing to sleep, at her tipping machine before being terminated
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following the fifth occasion. [Filing No. 37-10; Filing No. 37-11; Filing No. 37-12; Filing No. 3713; Filing No. 37-14.] The Court notes that even if Ms. Grubb was not actually sleeping, Cook
has put forward undisputed evidence that Ms. King believed Ms. Grubb to be sleeping. Therefore,
even if Ms. Grubb was actually awake (but perhaps non-responsive) on any of these occasions, the
Court’s analysis would remain unchanged. Cook has presented undisputed evidence that it
believed Ms. Grubb to be sleeping, and therefore not meeting Cook’s legitimate employment
expectations.
Even if Ms. Grubb could establish the second element of the prima facie analysis, she
cannot establish the fourth—that a similarly situated, non-disabled employee was treated more
favorably. As pointed out by Cook, Ms. Grubb has provided no evidence whatsoever as to any
other employee. Ms. Grubb’s claim therefore fails as a matter of law. See, e.g., Maxieson v.
Capital Improvement Bd., 2000 WL 1469442, *3 (S.D. Ind. Sept. 18, 2000) (“With no evidence
whatsoever of similarly situated employees that received favorable treatment—i.e., that were
allowed to remain employed after being caught sleeping on the job— [Plaintiff’s] race and sex
discrimination claims fail as a matter of law.”).
For the sake of completeness, the Court notes that even if the Court had concluded that Ms.
Grubb had met her prima facie burden, Cook’s undisputed evidence establishes that the decision
to terminate Ms. Grubb’s employment was based on a legitimate, non-discriminatory reason: Ms.
Grubb’s failure to adhere to Cook’s policy of remaining awake while on the job. Ms. Grubb has
put forward no evidence that this reason was pretextual. Pretext is defined as “a dishonest
explanation, a lie rather than an oddity or an error.” Sweatt v. Union Pacific R. Co., 796 F.3d 701,
709 (7th Cir. 2015). So, as described above, even if Ms. Grubb only appeared to be sleeping, but
was not actually asleep, the critical inquiry is whether Ms. King and Cook honestly believed that
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Ms. Grubb was sleeping. Cook has offered evidence that it did, and Ms. Grubb has offered no
contradictory evidence.
For all of these reasons, the Court concludes that Cook is entitled to summary judgment on
Ms. Grubb’s ADA claim.
B. State Law Retaliatory Discharge
As discussed above, the Court has granted summary judgment to Cook on Ms. Grubb’s
ADA claim, the only one she raises pursuant to federal law. All of her remaining claims are raised
pursuant to Indiana state law. The district court ultimately has discretion whether to exercise
supplemental jurisdiction over a plaintiff’s state law claims. Carlsbad Tech., Inc. v. HIF Bio, Inc.,
556 U.S. 635, 639 (2009); 28 U.S.C. § 1367(c) (“The district courts may decline to exercise
supplemental jurisdiction over a claim ... if ... the district court has dismissed all claims over which
it has original jurisdiction....”) (citation and quotation omitted). When deciding whether to
exercise supplemental jurisdiction, “a federal court should consider and weigh in each case, and at
every stage of the litigation, the values of judicial economy, convenience, fairness, and comity.”
City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 173 (1997) (quoting Carnegie-Mellon
Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)). “In the usual case in which all federal claims are
dismissed before trial, the balance of these factors will point to declining to exercise jurisdiction
over any remaining pendent state-law claims rather than resolving them on the merits.” Wright v.
Associated Ins. Companies Inc., 29 F.3d 1244, 1251 (7th Cir. 1994). Here, the Court finds that, in
the interest of judicial economy, it can exercise jurisdiction over Ms. Grubb’s state law claims.
“[W]hen substantial judicial resources have already been committed, sending the case to another
court will cause a substantial duplication of effort.” Wright, 29 F.3d at 1251 (citation and internal
quotation omitted). This litigation has been pending since 2017, and the parties have already
13
engaged in discovery. Having committed judicial resources to this case, it would be futile and
inefficient to have the parties start over in another court system.
Ms. Grubb alleges that she was terminated in retaliation for seeking the assistance of the
Worker’s Compensation Board. [Filing No. 1 at 8-9.] Cook argues that Ms. Grubb has failed to
produce any evidence that directly or indirectly supports an inference of causation between her
filing a worker’s compensation claim and her termination. [Filing No. 38 at 13.]
Retaliation claims based on the filing of a worker’s compensation claim were recognized
as actionable by the Indiana Supreme Court in Frampton v. Central Ind. Gas Co., 260 Ind. 249,
297 N.E.2d 425, 428 (Ind. 1973) (holding that a plaintiff who demonstrates that she was discharged
by an employer for filing a claim under Indiana’s Workmen’s Compensation Act “has stated a
claim upon which relief can be granted”).
The court recognized that “under ordinary
circumstances, an employee at will may be discharged without cause,” but “when an employee is
discharged solely for exercising a statutorily conferred right an exception to the general rule must
be recognized.” Id. at 428. To succeed on a claim of retaliatory discharge, a plaintiff “must present
evidence that directly or indirectly implies the necessary inference of causation between the filing
of a worker’s compensation claim and the termination, such as proximity in time or evidence that
the employer’s asserted lawful reason for discharge is a pretext.” Dale v. J.G. Bowers, Inc., 709
N.E.2d 366, 369 (Ind. Ct. App. 1999); see also Smeigh v. Johns Manville, Inc., 643 F.3d 554, 560
(7th Cir. 2011).
Ms. Grubb has presented no evidence to support her retaliation claim. The undisputed facts
demonstrate, as described above, that Ms. Grubb was terminated for the non-retaliatory reason of
repeatedly falling asleep at work. Moreover, Cook has presented evidence that it encouraged Ms.
Grubb to file her worker’s compensation claim, and it satisfied her requests for accommodation of
14
her disability after her claim was filed. After Ms. Grubb appeared to be injured while at work, a
Cook supervisor instructed her to file a worker’s compensation claim. [Filing No. 37-1 at 23-24.]
In March of 2015, Ms. Grubb made a reasonable accommodation request for an ergonomic chair,
and Cook complied by providing her with the chair. [Filing No. 37-1 at 25-26.] Additionally,
Cook restricted her work activities in accordance with her medical needs. [Filing No. 37-1 at 1213.] Moreover, there is no evidence of suspicious timing of the termination. Cook did not
terminate Ms. Grubb’s employment until ten months after she filed her worker’s compensation
claim. See, e.g., Goetzke v. Ferro Corp., 280 F.3d 766, 775 (7th Cir. 2002) (holding that a oneyear passage of time between submission of worker’s compensation claim and termination “does
not create an inference of retaliation”); see also Adusumilli v. City of Chicago, 164 F.3d 353, 363
(7th Cir. 1998) (holding that, in the context of a Title VII retaliation claim, an eight-month lapse
of time between the protected activity and termination did not raise an inference of a causal
connection).
In short, Ms. Grubb has put forward no evidence connecting her discharge to the filing of
her worker’s compensation claim. Therefore, Ms. Grubb’s retaliatory discharge claim fails as a
matter of law, and Cook is entitled to summary judgment.
C. Battery
Ms. Grubb alleges that Ms. King twice battered her while working at Cook, by “pulling
her head up.” [Filing No. 1 at 6.] In response, Defendants argue that Ms. Grubb has failed to
identify any evidence supporting these allegations and that the undisputed evidence contradicts
her allegations. [Filing No. 38 at 15.]
To succeed on a battery claim, a plaintiff most show (1) that the alleged batterer acted
intending to cause a harmful or offensive contact with the person of the other or a third person, or
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that the plaintiff had an imminent apprehension of such a contact; and (2) that a harmful contact
with the person of the other directly or indirectly resulted. Mullins v. Parkview Hosp., Inc., 865
N.E.2d 608, 610 (Ind. 2007).
Even assuming that Ms. King touched Ms. Grubb in the manner that Ms. Grubb claims,
the facts alleged by Ms. Grubb would not satisfy all of the elements required to prove battery. Ms.
Grubb has provided no evidence demonstrating that Ms. King intended to cause harm or that the
contact was in fact harmful, as required under Indiana law. Mullins, 865 N.E.2d at 661 (citing
Restatement (Second) of Torts § 13). Ms. Grubb puts forward no evidence that Ms. King acted
intending to cause her harm, and rather during her deposition, Ms. Grubb stated that she and Ms.
King “got [along] fine.” [Filing 37-1 at 57.] Ms. Grubb’s testimony both stating that she was not
injured by the alleged contact and that she did not seek medical treatment as a result of the contact
contradicts her claim that the alleged conduct constituted a harmful contact. [Filing No. 37-1 at
40-41.]
Therefore, Defendants are entitled to summary judgment on Ms. Grubb’s battery claim.
D. Intentional Infliction of Emotional Distress
Ms. Grubb argues that Ms. King battered her with the intention of causing her to suffer
severe emotional distress and that the battery did cause severe emotional distress. [Filing No. 1 at
7.] Defendants argue that the alleged battery did not occur and that, even if it had, the undisputed
evidence shows that Ms. Grubb did not suffer from any emotional distress. [Filing No. 38 at 17.]
To prove her claim for intentional infliction of emotional distress, Ms. Grubb must
establish that Defendants: (1) engaged in extreme and outrageous conduct (2) which intentionally
or recklessly (3) caused (4) severe emotional distress to another. Westminster Presbyterian
Church of Muncie v. Yonghong Cheng, 992 N.E.2d 859, 870 (Ind. Ct. App. 2013) (citing Cullison
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v. Medley, 570 N.E.2d 27, 31 (Ind. 1991)). The standard under Indiana law for establishing
extreme or outrageous conduct in stringent. Westminster, 992 N.E.2d at 870. Outrageous conduct
must be “so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded
as atrocious, and utterly intolerable in a civilized community.” Id. (citing Bradley v. Hall, 720
N.E.2d 747, 752-53 (Ind. Ct. App. 1999)).
Even assuming that a battery occurred, Ms. Grubb’s claim nonetheless fails. Ms. Grubb
has presented no evidence to establish that Ms. King intended to cause Ms. Grubb emotional
distress. Nor is there any evidence that Ms. Grubb did in fact suffer severe emotional distress. As
discussed above, Ms. Grubb’s testimony stating that “[she] got along with [Ms. King] when [she]
left” and her indication that she had not “suffered any sort of psychological or physical symptoms
from Ms. King touching her,” indicates that neither element is met here. [Filing 37-1 at 66; Filing
No 37-1 at 54.]
Defendants are therefore entitled to summary judgment as a matter of law on this claim.
E. Negligent Hiring, Supervision, and Retention
Ms. Grubb asserts that “Cook knew or should have known that King was an unfit and/or
incompetent employee whose unfitness and/or incompetence created a particular risk of harm to
Cook’s employees . . . .” [Filing No. 1 at 8.] Based on these allegations, Ms. Grubb argues that
due to Cook’s negligence, she “has been severely damaged physically and emotionally.” [Filing
No. 1 at 8.] Cook argues that Ms. Grubb has presented no showing that Cook was ever made
aware of Ms. King’s touching of Ms. Grubb. [Filing No. 38 at 20.] And Cook argues that Ms.
Grubb has offered no evidence that Ms. King habitually endangered Cook employees or that Cook
knew or should have known Ms. King conducted herself in in that manner. [Filing No. 38 at 20.]
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To prevail on a negligence claim, “a plaintiff is required to prove: (1) a duty owed by the
defendant to the plaintiff; (2) a breach of that duty by the defendant; and (3) an injury to the plaintiff
proximately caused by the breach.” Peters v. Forster, 804 N.E.2d 736, 738 (Ind. 2004) (citing
Benton v. City of Oakland City, 721 N.E.2d 224, 232 (Ind. 1999)). Summary judgment is rarely
appropriate in negligence cases, as they are particularly fact-sensitive. Rhodes v. Wright, 805
N.E.2d 382, 387 (Ind. 2004). “Nevertheless, a defendant is entitled to judgment as a matter of law
when the undisputed material facts negate at least one element of the plaintiff's claim.” Haire v.
Parker, 957 N.E.2d 190, 195 (Ind. 2011) (citing Rhodes, 805 N.E.2d at 385).
Indiana recognizes a cause of action against employers for negligent hiring, supervision,
or retention. Hansen v. Board of Trustees of Hamilton Southeastern School Corp., 551 F.3d 599,
609 (7th Cir. 2008) (citing Levinson v. Citizens Nat’l Bank of Evansville, 644 N.E.2d 1264, 1269
(Ind. Ct. App. 1994)). “Indiana has adopted the Restatement (Second) of Torts § 317 as the
standard with regard to this tort, under which a court must determine if the employer exercised
reasonable care in hiring, supervising, or retaining an employee.” Hansen, 551 F.3d at 609 (citing
Konkle v. Henson, 672 N.E.2d 450, 454-55 (Ind. Ct. App. 1996)).
As the Seventh Circuit acknowledged in Hansen, Indiana Courts have applied two different
standards for holding an employer liable for negligent hiring, retention, and supervision: one
requiring actual knowledge of misconduct, and one imposing liability if the employer should have
known of misconduct. 551 F.3d at 609 (citing Levinson, 644 N.E.2d at 1269 (holding that to
prevail on such a claim “the plaintiff must show that the defendant employer negligently retained
an employee who the defendant knew was in the habit of misconducting himself”); Grzan v.
Charter Hosp. of Nw. Ind., 702 N.E.2d 786, 793 (Ind. Ct. App. 1998) (holding that a defendant
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must have known or “had reason to know” of the misconduct and failed to take appropriate
action)).
This Court need not determine which of those two standards applies here, because Ms.
Grubb has presented no evidence that would satisfy either. In her Complaint, Ms. Grubb alleges
that Ms. King “touched [her] in a harmful and offensive manner to wit: putting her hand under
[Ms. Grubb’s] chin and the other hand on the back of [Ms. Grubb’s] head and pulling her head up”
and that Cook was responsible for Ms. King’s actions. [Filing No. 1 at 6.] But, as described
above regarding Ms. Grubb’s other claims, Ms. Grubb has not put forward any evidence as to what
injury she suffered as a result of the alleged misconduct by Ms. King. And Ms. Grubb has put
forward to evidence in support of her claim that Cook either knew or should have known about
any misconduct.
Defendants are therefore entitled to summary judgment on this claim.
IV.
CONCLUSION
For the reasons described above, Defendants are entitled to summary judgment on all of
Ms. Grubb’s claims.
Accordingly, the Court GRANTS Defendants’ Motion for Summary
Judgment. [37]
Final judgment shall issue by separate order.
Date: 5/29/2018
Distribution by ECF only to all counsel of record.
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