BEAN v. INDIANA DEPARTMENT OF TRANSPORTATION
Filing
66
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 37 Motion for Summary Judgment is GRANTED. 61 Motion to Strike is DENIED. Final Judgment shall issue accordingly. See Order for details. Signed by Judge Sarah Evans Barker on 9/8/2014. (LBT)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
KEVIN E. BEAN,
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Plaintiff,
vs.
INDIANA DEPARTMENT OF
TRANSPORTATION,
Defendant.
No. 4:12-cv-00099-SEB-WGH
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This cause is before the Court on Defendant’s Motion for Summary Judgment
[Docket No. 37], filed on January 29, 2014, pursuant to Federal Rule of Civil Procedure
56 and Local Rule 56.1, and Plaintiff’s Motion to Strike [Docket No. 61], filed on April
7, 2014. Plaintiff, Kevin E. Bean, brings this claim against his former employer,
Defendant Indiana Department of Transportation (“INDOT”), alleging that INDOT
terminated him because of his sex (male), in violation of Title VII of the Civil Rights Act
of 1964 (“Title VII”). For the reasons detailed in this entry, we DENY Plaintiff’s Motion
to Strike and GRANT Defendant’s Motion for Summary Judgment.
Factual Background
General Background
Kevin Bean began working for INDOT in 1994 as an at-will employee. He started
out as a mechanic and served in that position for almost ten years. In 2004, Mr. Bean
earned a promotion and began working in INDOT’s subdistrict office located in Aurora,
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Indiana, where he ran special jobs for the subdistrict manager, which included drafting
schedules for salting, mowing and other maintenance tasks, arranging to have the
necessary equipment for jobs, and participating in the creation of reports on mowing and
salt usage. Bean Dep. at 17-20.
In August 2010, Mr. Bean earned a promotion to Aurora-unit foreman. While
employed as the unit foreman, Mr. Bean reported directly to Tom Armbruster, the subdistrict operations manager. Mr. Armbruster was supervised by Gary Vandegriff who in
turn reported to the district manager, Kathy Eaton-McKalip. Both crew leaders as well as
maintenance workers for the Aurora Unit reported to Mr. Bean. During the relevant time
period, Teresa Souders and Mark Miller were the two crew leaders in the Aurora Unit,
which also included ten highway maintenance crew members. Id. at 32-34; Miller Dep.
at 6. As unit foreman, Mr. Bean was responsible for supervising the Aurora Unit,
maintaining the highways located within the Unit, ensuring a safe environment for those
who worked there, monitoring the weather, and checking on job sites. 1 Bean Dep. at 3537.
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The official job description for unit foreman lists the following as essential duties/
responsibilities of the position: (1) assigning work to units and ensuring that needed materials
and equipment was available; (2) ensuring the most effective utilization of personnel, time, and
equipment for each task; (3) drafting short range plans to conform to material and allocated man
hours; (4) establishing priorities with alternatives due to weather conditions; (5) explaining
methods, procedures, scheduling, and equipment available, as well as the purpose of the job and
long and short range programs that might affect the work; (6) inspecting and reviewing work for
proper methods and procedures as well as ensuring the work met acceptable standards; (7)
inspecting work upon completion for appearance and end result; (9) identifying training needs
and providing on-the-job training and special training sessions to teach correct maintenance
methods, safety, and first aid; (10) ensuring adherence to all administrative policies and
procedures; (11); conducting annual job evaluations and discussing evaluations with employees;
(12) conducting conferences with subordinates to ensure applicable policies, rules, and
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Plaintiff’s Discipline of Crew Leader
One of Mr. Bean’s powers as unit foreman was the ability to issue reprimands.
However, Mr. Bean maintains that he routinely consulted Mr. Armbruster for guidance
before issuing discipline. According to Mr. Bean, he always forwarded his disciplinary
drafts to Mr. Armbruster and he never issued unsigned reprimands while a unit foreman.
Id. at 80-82. With Mr. Armbruster’s approval, Mr. Bean on one occasion issued Ms.
Souders 2 a reprimand for insubordination because she had come in from mowing at 1:30
p.m. when her shift did not end until 5:00 p.m. and then purposefully brought her crew in
late from the job site the next day so that INDOT was required to pay them overtime. Id.
at 83-84. In June 2009, Mr. Armbruster issued to Ms. Souders a “letter of counseling”
for falsification of records and dishonesty based on her failure to honor her agreement to
abstain from the use of tobacco products in order to receive a reduction in her group
health insurance deductible. Souders Dep. Exh. 1. Ms. Souders signed the counseling
letter at the time it was issued but testified that she does not recall the incident. Souders
Dep. at 24-25, 31, 36-37.
Mr. Bean testified that he otherwise found Ms. Souders’s job performance to be
satisfactory and he did not issue her any other reprimands or written discipline while he
was her supervisor. Bean Dep. at 33-35, 84. However, Mr. Bean also testified that
regulations were understood and determining problems or disciplinary action being considered;
(13) making recommendations for the hiring, firing, and promotion or demotions of employees;
and (14) performing related duties as required. Docket No. 38-7 (Job Description).
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Ms. Souders had been a crew leader in the Aurora Unit for two years before Mr. Bean became
unit foreman and she worked as a crew leader under Bean for an additional two years. Before
she was crew leader, she worked as a general laborer for INDOT for approximately six months.
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members of her crew complained to him about working for her because she acted like she
did not have to follow rules, impermissibly set her own schedule for jobs, and came in
late from jobs or did not finish them. Id. at 51-54, 57, 95. Both Mr. Miller (the other
crew leader Mr. Bean supervised) and Terri Hartwell (Mr. Armbruster’s administrative
assistant) testified that they had heard similar complaints about Ms. Souder’s supervision.
Miller Dep. at 9; Hartwell Dep. at 21-22. Despite these alleged issues as crew leader,
Ms. Souders reportedly publicly stated on multiple occasions that she wanted Mr. Bean’s
job. Bean Dep. at 60, 65-66; Miller Dep. at 9-10, 21.
Allegations Regarding Inaccurate Fuel Logs
Until the events underlying this litigation occurred, Mr. Bean maintained a clean
disciplinary record throughout his eighteen-year tenure, regularly received performance
ratings of meets or exceeds expectations, and was consistently promoted. However, in
the fall of 2011, Ms. Souders reported to Mr. Vandegriff and Brooke Coomer from
Human Resources that she had concerns about Mr. Bean and Mr. Armbruster.
Specifically, Ms. Souders reported that there were discrepancies in INDOT’s fuel logs
and that she believed Mr. Bean had falsified the logs. She further stated that fuel and
other equipment was missing from the Aurora Unit. In support of her allegations, she
supplied copies of fuel logs she had previously turned in to Mr. Bean. Souder Dep. at 2024; Commer Dep. at 24. Other employees within the Aurora Unit, including Greg Shell
and Ms. Hartwell reported similar issues, to wit, that the fuel logs were not accurate and
that fuel was missing. Vandegriff Dep. at 45.
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Throughout the time period relevant to this litigation, INDOT used a fuel truck
operated by Ms. Souders to refuel its vehicles. Ms. Souders would deliver the fuel to
various job sites and the employees who refueled from the truck were supposed to record
the amount of fuel used, along with the vehicle receiving it, on the log Souders kept in
her truck. Bean Dep. at 41-42, 61. The logs were then turned over to Mr. Bean to deliver
to Ms. Hartwell who entered the information from the fuel logs into the computer at the
office, generating fuel usage reports that were sent straight to the Aurora subdistrict
office. Id. at 43-45, 55. According to Mr. Bean, reviewing these reports was not part of
his job duties as listed in his position description, nor was he told that he was responsible
for entering fuel use into the fuel log when he was a unit foreman. Mr. Bean further
contends that he was not responsible for the electronic entering of fuel information from
the fuel logs on to the computer and that he did not even have access to the fuel logs on
his computer. Id. at 43, 54-55.
Ms. Souders was responsible for completing her own fuel logs and turning them in
to Mr. Bean. Bean Dep. at 60. Although Ms. Souders and all other employees who
fueled INDOT vehicles were supposed to track their fuel use on the logs and give them to
Mr. Bean each night to deliver to Ms. Hartwell, Mr. Miller testified that on one occasion
he discovered that Ms. Souders had been keeping more than one month’s worth of fuel
receipts in the cab of her vehicle without turning them into Mr. Bean. According to Mr.
Miller, Ms. Souders’s conduct caused him to be concerned that she was trying to make
Mr. Bean’s records appear inaccurate by failing to turn over her fuel receipts. Miller
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Dep. at 12-15; 21-22. It is not clear whether Mr. Miller ever reported this to his
supervisors or anyone else at INDOT.
Defendant’s Investigation of Plaintiff
Based on Ms. Souders’s concerns, Mr. Vandegriff and Ms. Coomer commenced
an investigation into the fuel records. Vandegriff Dep. at 49. During their investigation,
they collected one month of fuel logs from the Aurora Unit and compared them to the
copies Ms. Souders had provided from her records as well as fuel logs found on Mr.
Bean’s desk. Coomer Dep. at 24. Upon comparison, Mr. Vandegriff and Ms. Coomer
noticed that several of the sheets showed discrepancies in the amount of fuel used;
specifically, the comparison revealed that fuel was missing. Mr. Vandegriff and Ms.
Coomer also observed that after Ms. Souders completed the portions of the forms she was
responsible for, additional entries had been made to balance the sheets, and the previous
totals were erased in order to cover up the missing fuel. Id. at 25-26. Mr. Bean’s
signature appeared at the bottom of the records that had been altered. Id. at 27.
As part of their investigation, Mr. Vandegriff and Ms. Coomer also interviewed
crew members regarding the records and they discovered that some of the employees’
signatures had been falsified. INDOT maintains that none of the employees suggested
that Ms. Souders was involved in falsifying the fuel logs, and Ms. Coomer testified by
deposition that two other (unidentified) male employees reported that they believed Mr.
Bean may have made entries on the logs to balance out the numbers. Id. Mr. Vandegriff,
however, testified that Ms. Souders was the only employee whom he remembered
claiming that Mr. Bean had falsified fuel records. Vandegriff Dep. at 59-60. According
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to INDOT, at the conclusion of the investigation, Mr. Bean was brought in to discuss the
discrepancies in the fuel logs. He denied stealing fuel and altering the records, but he did
not provide an alternative explanation for why or how the fuel logs had been altered. Id.
at 33.
In addition to the fuel log discrepancies, while conducting their investigation, Mr.
Vandegriff and Ms. Coomer noticed on Mr. Bean’s desk certain documents containing
employees’ personal information including the last four digits of their social security
numbers as well as written discipline forms that had not been forwarded to the
appropriate employee files. Such corrective records were supposed to be sent to the
central office to be logged into INDOT’s system and personnel files. Coomer Dep. at 3031; 42-43. Mr. Vandegriff was reportedly also aware of incidents in which the Aurora
Unit produced a sub-standard quality product, such as when Mr. Bean’s crew spread hotmix asphalt with a front end loader, which resulted in tire tracks being left in the
pavement that created rough riding roads necessitating patch work. Vandegriff Dep. at
37-40. Ms. Coomer testified that there was also an allegation that Mr. Armbruster and
Mr. Bean had performed work on Mr. Armbruster’s home during business hours.
Coomer Dep. at 29.
Plaintiff’s Termination and Subsequent Replacement
Mr. Bean had been placed on administrative leave without explanation on October
27, 2011, while INDOT investigated Ms. Souders’s allegations against him. Although
Mr. Bean was advised not to communicate with anyone from INDOT while on
administrative leave, he contacted Mr. Armbruster and also attempted to contact Ms.
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Hartwell. After the investigation concluded, INDOT asked Mr. Bean to return to the
office and terminated his employment on November 9, 2011. According to INDOT, Mr.
Vandegriff, Ms. Coomer, and Kathy Eaton McKalip were all involved in making the
termination decision. Coomer Dep. at 28.
Mr. Bean’s termination paperwork stated that he was fired for dishonest behavior,
failure to perform duties, and unacceptable conduct. According to Mr. Bean, the first
time he was made aware of the specific allegations against him was when he arrived at
the office, at which point his personal effects were already boxed up and on the counter
and he was terminated before he had an opportunity to respond to the allegations. 3 Thus,
contrary to INDOT’s version of events, Mr. Bean claims that he did not know that he had
been accused of falsifying fuel logs until after his termination was final.
Mr. Bean’s supervisor, Mr. Armbruster, was also placed on administrative leave
and subsequently terminated. Mr. Armbruster was replaced by Terry Lambert, a male.
Mr. Lambert then conducted interviews of candidates for unit foreman for the Aurora
Unit. Approximately two months after Mr. Bean was terminated, Ms. Souders was
selected to fill his position.
Continuing Fuel Log Problems Following Plaintiff’s Termination
In March 2012, a few months after Ms. Souders took over as unit foreperson,
Aurora Unit crews were sent to clear debris and fallen trees after a tornado struck. In
October 2012, INDOT received a letter stating that after the March clean-up, ninety
3
As noted above, INDOT, however, contends that Mr. Bean had been asked about the
allegations before he was terminated and was given the opportunity to respond.
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gallons of fuel were discovered missing. Bean Dep. Exh. A. According to the letter, this
information was reported to internal affairs but the missing fuel was never located or
otherwise accounted for and fuel logs continued to be inaccurate. The letter questioned
why INDOT continued to deal with these issues after the “guy they terminated was the
person responsible for this kind of activity.” Id. Mr. Miller testified that, after the
tornado, Ms. Souders told him that she had failed to keep track of seventy gallons of fuel
used from her nurse truck. Miller Dep. at 23.
The Instant Litigation
After Mr. Bean’s termination, he filed a Civil Service complaint with the State
Employee Appeals Commission, contending that his termination contravened public
policy and violated his First Amendment right to freedom of speech. He did not mention
discrimination on the basis of his gender in that document. Mr. Bean’s grievance was
later denied and he appealed.
On April 9, 2013, Mr. Bean filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”), alleging that his termination was the
result of gender and age discrimination. A notice of right to sue was issued on May 24,
2012, and on August 21, 2012, Mr. Bean filed his Complaint in this action.
Legal Analysis
I.
Plaintiff’s Motion to Strike
On April 7, 2014, Plaintiff filed a Motion to Strike Exhibit 6 (documents relating
to INDOT’s investigation of Mr. Bean) attached to Defendant’s Supplemental
Designation of Evidence and the parts of Defendant’s Reply in Support of its Motion for
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Summary Judgment referring to Exhibit 6 because Defendant failed to produce the
documents during the discovery period. INDOT concedes that the documents in Exhibit
6 should have been produced to Mr. Bean in response to his discovery requests, and in
fact, pages 14 through 19 of Exhibit 6 along with the related fuel logs were produced to
Mr. Bean on July 23, 2013. INDOT argues that Exhibit 6 should not be stricken because
its failure to produce the documents contained therein was inadvertent and Mr. Bean has
not been prejudiced by the failure to disclose.
According to INDOT, when it initially responded to Mr. Bean’s discovery
requests, it was unable to locate any investigation reports or notes beyond what it
originally produced. However, at Ms. Coomer’s and Mr. Vandegriff’s depositions, they
testified about the investigation they had performed including interviews and a review of
fuel logs as well as notes they had taken during their investigation. Coomer Dep. at 2433; Vandegriff Dep. at 44-45, 49-50. After those depositions, INDOT realized that there
should be more documents relating to the investigation of Mr. Bean and it contends that it
was only after a suggestion from Ms. Coomer that a search be done on her former
computer, which she had used while employed at INDOT but was no longer in use, that
pages 1 through 13 of Exhibit 6 were discovered. By that time, Mr. Bean had served four
additional requests for production on INDOT, and INDOT contends that “[t]hrough
miscommunication and oversight in the course of responding to those requests,” counsel
for INDOT failed to produce pages 1 through 13 to Mr. Bean, even though they were
relevant to his requests. INDOT’s counsel contends that this oversight was not noticed
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until Mr. Bean claimed in his response to the motion for summary judgment that INDOT
had performed no investigation before terminating him.
Exhibit 6 was cited in INDOT’s reply only once in support of the following
statement: “Vandegriff and Coomer did an extensive investigation to determine whether
Bean was adequately performing his job duties.” Def.’s Reply at 11. As noted above,
Mr. Vandegriff and Ms. Coomer testified in their depositions about the investigation they
performed before recommending Mr. Bean’s termination, and thus, INDOT argues that
Exhibit 6 is merely “illustrative of the testimony of Vandegriff and Coomer and is not
cited for any facts contained within it.” Dkt. No. 62 at 3. INDOT argues that, given that
there is ample testimony in the record on the same subject and Exhibit 6 is only
referenced once in the reply for illustrative purposes, Mr. Bean has not been prejudiced
by its inadvertent failure to timely disclose the documents, and thus, Exhibit 6 should not
be stricken.
Under Federal Rule of Civil Procedure 26(e), a party who has responded to a
request for production must supplement or correct its disclosure or response “in a timely
manner if the party learns that in some material respect the disclosure or response is
incomplete or incorrect, and if the additional or corrective information has not otherwise
been made known to the other parties during the discovery process or in writing.” Fed.
R. Civ. P. 26(e)(1)(A). If a party fails to comply with Rule 26(e), “the party is not
allowed to use that information … to supply evidence on a motion, at a hearing, or at a
trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P.
37(c)(1). “The determination of whether a Rule 26(a) violation is justified or harmless is
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entrusted to the broad discretion of the district court.” Mid-America Tablewares, Inc. v.
Mogi Trading Co., Ltd., 100 F.3d 1353, 1363 (7th Cir. 1996) (citation omitted). Under
Seventh Circuit law, the following factors are to guide the district court’s discretion: “(1)
the prejudice or surprise to the party against whom the evidence is offered; (2) the ability
of the party to cure the prejudice; (3) the likelihood of disruption to the trial; and (4) the
bad faith or willfulness involved in not disclosing the evidence at an earlier date.” David
v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003) (citations omitted).
First, we note that INDOT’s failure to timely disclose the documents in Exhibit 6
was inadvertent and not the result of bad faith. Beyond that, INDOT’s failure did not
seriously prejudice Mr. Bean since he was clearly on notice, based on the deposition
testimony of Mr. Vandegriff and Ms. Coomer, that INDOT was arguing that it had
conducted a thorough investigation before making the termination decision and that notes
had been taken during that investigation. Therefore, the undisclosed evidence does not
raise any new arguments or theories of defense, but merely provides corroborative
evidence for the prior testimony already in the record. Moreover, other similar
documents relating to the investigation had previously been produced to Mr. Bean,
making him aware of the existence of the same type of documents as contained in Exhibit
6. Given these facts, we cannot conclude that Mr. Bean was significantly prejudiced by
INDOT’s failure to timely disclose pages 1 through 10 of Exhibit 6. No disruption of any
trial or of the summary judgment proceedings will result from INDOT’s failure to
disclose. The missing documents are neither particularly helpful to Mr. Bean’s case nor
damaging to INDOT’s such that INDOT would have had a motive for withholding them.
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As previously stated, INDOT has represented that its failure to produce them in response
to Mr. Bean’s requests for production was inadvertent. Considering all of these factors,
we DENY Plaintiff’s Motion to Strike.
II.
Defendant’s Motion for Summary Judgment
A.
Standard of Review
Summary judgment is appropriate when the record shows that there is “no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Disputes concerning material facts are genuine where the evidence is such that a
reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding whether genuine issues of material
fact exist, the court construes all facts in a light most favorable to the non-moving party
and draws all reasonable inferences in favor of the non-moving party. See id. at 255.
However, neither the “mere existence of some alleged factual dispute between the
parties,” id., 477 U.S. at 247, nor the existence of “some metaphysical doubt as to the
material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986), will defeat a motion for summary judgment. Michas v. Health Cost Controls of
Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000).
The moving party “bears the initial responsibility of informing the district court of
the basis for its motion, and identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323.
The party seeking summary judgment on a claim on which the non-moving party bears
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the burden of proof at trial may discharge its burden by showing an absence of evidence
to support the non-moving party's case. Id. at 325.
Summary judgment is not a substitute for a trial on the merits, nor is it a vehicle
for resolving factual disputes. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th
Cir. 1994). Therefore, after drawing all reasonable inferences from the facts in favor of
the non-movant, if genuine doubts remain and a reasonable fact-finder could find for the
party opposing the motion, summary judgment is inappropriate. See Shields Enterprises,
Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992); Wolf v. City of
Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989). But if it is clear that a plaintiff will be
unable to satisfy the legal requirements necessary to establish his or her case, summary
judgment is not only appropriate, but mandated. See Celotex, 477 U.S. at 322; Ziliak v.
AstraZeneca LP, 324 F.3d 518, 520 (7th Cir. 2003). Further, a failure to prove one
essential element “necessarily renders all other facts immaterial.” Celotex, 477 U.S. at
323.
A plaintiff’s self-serving statements, which are speculative or which lack a
foundation of personal knowledge, and which are unsupported by specific concrete facts
reflected in the record, cannot preclude summary judgment. Albiero v. City of Kankakee,
246 F.3d 927, 933 (7th Cir. 2001); Stagman v. Ryan, 176 F.3d 986, 995 (7th Cir. 1999);
Slowiak v. Land O’Lakes, Inc., 987 F.2d 1293, 1295 (7th Cir. 1993).
The summary judgment standard is applied rigorously in employment
discrimination cases, because intent and credibility are such critical issues and direct
evidence is rarely available. Seener v. Northcentral Technical Coll., 113 F.3d 750, 757
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(7th Cir. 1997); Wohl v. Spectrum Mfg., Inc., 94 F.3d 353, 354 (7th Cir. 1996). To that
end, we carefully review affidavits and depositions for circumstantial evidence which, if
believed, would demonstrate discrimination. However, the Seventh Circuit has also
made clear that employment discrimination cases are not governed by a separate set of
rules, and thus remain amenable to disposition by summary judgment so long as there is
no genuine dispute as to the material facts. Giannopoulos v. Brach & Brock Confections,
Inc., 109 F.3d 406, 410 (7th Cir. 1997).
B.
Discussion
Under Title VII, an employer may not “fail or refuse to hire or to discharge any
individual, or otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment on the basis of race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Here, Mr. Bean contends
that INDOT terminated him because of his sex (male) in violation of Title VII. A
plaintiff may establish a case of discrimination using either the direct or indirect method
of proof. Mr. Bean has chosen to proceed solely under the indirect method; thus, we
follow his lead and discuss only that method of proof as initially set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).
To establish a prima facie case of sex discrimination using the indirect method in a
reverse discrimination suit such as this one, a plaintiff must establish: (1) “‘background
circumstances’ that demonstrate that a particular employer has ‘reason or inclination to
discriminate invidiously against [men]’ or evidence that ‘there is something “fishy” about
the facts at hand’”; (2) that he adequately performed his employment responsibilities; (3)
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that he suffered an adverse employment action; and (4) that he received different
treatment than similarly situated persons who were not members of the same protected
class. Henry v. Jones, 507 F.3d 558, 564 (7th Cir. 2007) (quoting Phelan v. City of
Chicago, 347 F.3d 679, 684-85 (7th Cir. 2003)). If the plaintiff is able to make such a
showing, the burden shifts to the employer to come forth with a “legitimate, nondiscriminatory reason” for its actions. Hill v. Potter, 625 F.3d 998, 1001 (7th Cir. 2010).
If the employer is able to do so, it will prevail unless the plaintiff presents evidence that
the employer’s given reason is merely a pretext for discrimination. Serednyj v. Beverly
Healthcare, LLC, 656 F.3d 540, 551 (7th Cir. 2011) (citation omitted).
In an attempt to satisfy the first prong of the prima facie test, Mr. Bean references
an unidentified email (which is not in evidence) in which INDOT allegedly encouraged
the hiring of minorities and women. The only other evidence of background
circumstances cited by Mr. Bean is an Outreach Memorandum which states that
“attracting qualified minority and female applicants continues to be a problem due to low
entry pay [in comparison to other local employers]” but that INDOT “will continue to
make good faith recruitment efforts for qualified minorities and females as vacancies
occur.” Pl.’s Exh. A. It is true that the Seventh Circuit has previously ruled that reverse
discrimination may not be surprising where supervisors are under particular pressure to
increase minorities in the workplace. See Preston v. Wisc. Health Fund, 397 F.3d 539,
542 (7th Cir. 2005) (citations omitted). However, the mere fact that INDOT apparently
on only one occasion noted difficulties in attracting women and minorities to the job and
emphasized that it would continue to explore when possible opportunities for diversity
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does not constitute evidence that INDOT supervisors were under special pressure to favor
or preference minorities. Such generic efforts to encourage the hiring of minorities and
women are fairly commonplace in today’s world and without more are insufficient to
establish adequate background circumstances.
Even assuming Mr. Bean had satisfied the first prong of the prima facie test, his
claim fails because he is unable to show that he was adequately performing his
employment responsibilities at the time he was terminated and that INDOT’s reasons for
terminating him were pretextual. Under the circumstances before us here, our analysis of
Mr. Bean’s performance of his employment responsibilities merges with the pretext
inquiry because INDOT’s proffered nondiscriminatory reason for Mr. Bean’s discharge is
his alleged failure to perform his duties in an acceptable manner and meet INDOT’s
legitimate job expectations. See Smiley v. Columbia Coll. Chi., 714 F.3d 998, 1002 (7th
Cir. 2013); Vaughn v. Vilsack, 715 F.3d 1001, 1007 (7th Cir. 2013).
INDOT’s assertion that Mr. Bean was not meeting its legitimate employment
expectations at the time he was terminated is corroborated by the termination letter that
states that he was being terminated for dishonest behavior, failure to perform duties, and
unacceptable conduct. Ms. Coomer testified these failures included INDOT’s belief that
Mr. Bean was responsible for the inconsistencies in the fuel logs as well as various issues
related to his managerial duties, including his failure to protect employees’ personal
information, and the fact that he drafted disciplinary reports which he failed to place in
employees’ files. Mr. Vandegriff testified that Mr. Bean was terminated because his
performance was deficient in a number of different areas, including maintaining proper
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paperwork; keeping track of materials, inventory, and other housekeeping matters; and
producing substandard work for the purpose of meeting quotas. Mr. Vandegriff also
testified that during the course of his investigation into the fuel log allegations, he
discovered that Mr. Bean had left sensitive personnel documents with the last four
numbers of employees’ Social Security numbers out in plain view on his desk Mr. Bean
rejoins that INDOT’s proffered explanation for his termination is merely pretext for
discrimination and that it actually terminated him because he is a man, given INDOT’s
preference for hiring women. In support of this contention, Mr. Bean points to what he
contends are inconsistent reasons given for his termination among the decisionmakers
throughout this litigation. He further argues that the reasons given for his termination are
factually baseless and were insufficient to support his termination.
To demonstrate pretext a plaintiff must show “such weaknesses, implausibilities,
inconsistencies, or contradictions in [the employer’s] proffered reasons that a reasonable
person could find them unworthy of credence and hence infer that [the employer] did not
act for the asserted non-discriminatory reasons.” Boumehdi v. Plastag Holdings, LLC,
489 F.3d 781, 792 (7th Cir. 2007) (citation omitted). Mr. Bean’s contentions and
evidence fall short of satisfying that burden here. His primary argument is that INDOT’s
conclusions that he falsified the fuel logs, left confidential information out on his desk,
improperly dealt with employee disciplinary documents, and exhibited poor performance
in various areas were simply in error. In support of this contention, he cites the fact that
INDOT continued to have problems with missing fuel even after he was terminated
replaced by Ms. Souders. He further argues that what INDOT believed to be unissued
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disciplinary documents found in his desk were merely fact files that included notes about
employee discipline, which, as a unit foreman, he was allowed to maintain and store in
his desk for the employees he supervised. Finally, Mr. Bean contends that although it is
true that he had collected the last four digits of employees’ Social Security numbers for
safety training, he denies leaving them out in public view on his desk.
But to demonstrate pretext, it is insufficient to show merely that the employer’s
“stated reason was inaccurate or unfair”; instead a plaintiff must establish that the
employer did not “honestly believe” the reasons it offered to explain its actions. Cung
Hnin v. TOA (USA), LLC, 751 F.3d 499, 506 (7th Cir. 2014). In other words, pretext
requires “more than just faulty reasoning or mistaken judgment on the part of the
employer; it is [a] ‘lie, specifically a phony reason for some action.’” Argyropoulos v.
City of Alton, 539 F.3d 724, 736 (7th Cir. 2008) (quoting Sublett v. John Wiley & Sons,
Inc., 463 F.3d 731, 737 (7th Cir. 2006)). Mr. Bean has not made such a showing here.
Mr. Bean further argues that the fact that Mr. Vandegriff testified that other unit
foreman had similar performance issues and yet were not terminated casts doubt on
INDOT’s proffered reason for his termination. It is true that evidence that similarly
situated employees outside the protected class were treated differently can establish
pretext. Coleman v. Donahoe, 667 F.3d 835, 858 (7th Cir. 2012) (“[C]omparator
evidence can do ‘double-duty’ at both the prima facie and pretext stages.”). However,
the other unit foreman cited by Mr. Vandegriff are all men, and thus, part of the same
class as Mr. Bean. Moreover, Mr. Bean has failed to put forth sufficient evidence from
which we can determine whether the other unit foreman are suitable comparators in other
19
respects because, according to Mr. Vandegriff’s testimony, the other unit foreman dealt
with different supervisors and, in any event, none had the same collection of issues as Mr.
Bean. To show that another employee is similarly situated, Mr. Bean must establish that
“there is someone who is directly comparable to [him] in all material respects.”
Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002) (citations omitted).
This includes assessing “whether the employees ‘dealt with the same supervisor’ and
were ‘subject to the same standards.’” Id. (quoting Radue v. Kimberly-Clark Corp., 219
F.3d 612, 617-18 (7th Cir. 2000)).
In cases like this one before us, where the discrimination complained of concerns
discipline or discharge, a plaintiff must show that another employee who was similarly
situated to the plaintiff “with respect to performance, qualifications, and conduct” was
treated differently. Peele v. Country Mut. Ins. Co., 288 F.3d 319, 330 (7th Cir. 2002)
(citing Radue, 219 F.3d at 617). Generally, this means that the plaintiff must show that
the two employees “had engaged in similar conduct without such differentiating or
mitigating circumstances as would distinguish their conduct or the employer’s treatment
of them.” 219 F.3d at 617-18. In short, there is insufficient evidence in this record from
which we can conclude that any of the other unit foreman are sufficiently comparable to
Mr. Bean such that INDOT’s alleged disparate treatment would raise suspicion.
Next, Mr. Bean argues that the fact that he had a long and unblemished tenure
with INDOT casts suspicion on INDOT’s claim that it honestly believed he was not
performing his duties properly when he was terminated. However, the fact that he had
previously performed satisfactorily for a number of years, while honorable, is insufficient
20
to establish that he was still performing satisfactorily at the time he was terminated. See
Moser v. Ind. Dep’t of Corrections, 406 F.3d 895, 901 (7th Cir. 2005) (noting that critical
inquiry was the plaintiff’s performance at the time of termination not throughout prior
years of employment). Mr. Bean’s most recent performance evaluation before his
termination was conducted in February 2011, approximately ten months before he was
fired, when he received a “meets” or “exceeds” rating on every category in that
evaluation. However, that simply does not conclusively establish that he was meeting
INDOT’s expectations ten months later when he was terminated.
Finally, Mr. Bean argues that INDOT’s credibility is impeached by its pattern of
providing “shifting” reasons for his termination. He contends that Ms. Coomer was the
only one who cited the fuel log discrepancies as the reason for termination in contrast to
Mr. Vandegriff’s testimony that Mr. Bean was terminated because of the managerial
issues discussed above. But significantly, both of these reasons are entirely consistent
with the reasons cited in Mr. Bean’s termination letter. 4 The mere fact that one
decisionmaker may have based a termination decision on one nondiscriminatory reason
while another decisionmaker relied on another nondiscriminatory reason does not
establish pretext so long as each decisionmaker honestly believed his or her individual
4
Mr. Bean also argues that Ms. Eaton-McKalip, who approved his termination, was misinformed
and believed he was being investigated for the falsification of crew work cards. However,
although Ms. Eaton-McKalip stated that she believed that part of the investigation of Mr. Bean
involved possible alteration of crew work cards, she also testified that she was aware that Mr.
Bean was also being investigated because of the falsified fuel log allegation, and that Mr.
Vandegriff ultimately told her that he was recommending that Mr. Bean be terminated because
there was “documentation of some bad performance as far as managerial issues.” EatonMcKalip Dep. at 12. This explanation is entirely consistent with Mr. Vandegriff’s deposition
testimony and INDOT’s proffered reasons for Mr. Bean’s termination.
21
reason at the time the termination decision was made. For these reasons the evidence
fails to support any conclusion other than that, after conducting an investigation into Mr.
Bean’s conduct and work performance following Ms. Souders’s allegation regarding the
missing fuel, INDOT decisionmakers honestly believed that Mr. Bean was not
performing satisfactorily at the time of his termination. Accordingly, because Mr. Bean
has failed to establish that INDOT’s proffered explanation for his termination was a lie,
or pretext for discrimination, his Title VII claim cannot survive summary judgment. 5
III.
Conclusion
For the foregoing reasons, Plaintiff’s Motion to Strike is DENIED and
Defendant’s Motion for Summary Judgment is GRANTED. Final judgment shall issue
accordingly.
IT IS SO ORDERED.
9/8/2014
Date: ____________________________
_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana
5
Because we find that Mr. Bean has failed to show that he was adequately performing his
legitimate job expectations at the time he was terminated and that INDOT’s proffered reason for
his termination was merely pretext for discrimination, we need not address INDOT’s alternative
argument that Mr. Bean failed to establish the fourth prong of his prima facie case, to wit, that a
similarly situated employee was treated differently.
22
Distribution:
Carrie Atkins Barron
FREKING & BETZ
cbarron@frekingandbetz.com
Jonathan Britton Allison
FREKING & BETZ, LLC
jallison@frekingandbetz.com
Aileen E. Wenzel
INDIANA ATTORNEY GENERAL
Aileen.Wenzel@atg.in.gov
Kenneth Lawson Joel
INDIANA ATTORNEY GENERAL
kenneth.joel@atg.in.gov
Laura Lee Bowker
INDIANA ATTORNEY GENERAL
laura.bowker@atg.in.gov
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