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Carver v. Electronic Data Systems Corp.

United States District Court, S.D. Indiana, Indianapolis Division
Feb 11, 2005
Cause No. 1:03-cv-01033-DFH-VSS (S.D. Ind. Feb. 11, 2005)

Summary

noting that the lack of any effective remedy for retaliation might otherwise negate the protections of the statute, thereby increasing the relevance of the Frampton analysis

Summary of this case from Gerardot v. Life Care Ctrs. of Am., Inc.

Opinion

Cause No. 1:03-cv-01033-DFH-VSS.

February 11, 2005


ENTRY ON MOTIONS FOR SUMMARY JUDGMENT


Plaintiff Karen Carver was employed by Electronic Data Systems Corp. ("EDS") as a customer service representative. Carver alleges that EDS discharged her in retaliation for exercising her statutory right to medical leave pursuant to the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. §§ 2601 et seq. EDS has moved for summary judgment. Carver has also filed a motion for partial summary judgment on the issue of whether she was entitled to FMLA leave. As explained below, the undisputed facts show that EDS fired Carver as part of a reduction in force and not in retaliation for her exercise of rights under the FMLA. Her supervisor was asked to identify her weakest employees for termination, and she did so. She selected Carver and two others, neither of whom had used the FMLA. Accordingly, the court grants defendant's motion for summary judgment and denies plaintiff's motion for partial summary judgment.

Summary Judgment Standard

The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, affidavits, and other materials demonstrate that there exists "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). Only genuine disputes over material facts can prevent a grant of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it might affect the outcome of the suit under the governing law, and a dispute about a material fact is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id.

On a motion for summary judgment, the moving party must first come forward and identify those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which the party believes demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Where the moving party has met the threshold burden of supporting the motion, the opposing party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Local Rule 56.1 requires the party opposing a motion for summary judgment to identify specific and material factual disputes. However, the existence of some metaphysical doubt does not create a genuine issue of fact. A party must present more than mere speculation or conjecture to defeat a summary judgment motion. Liberty Lobby, 477 U.S. at 252; Packman v. Chicago Tribune Co., 267 F.3d 628, 637 (7th Cir. 2001); Sybron Transition Corp. v. Security Insurance Co. of Hartford, 107 F.3d 1250, 1255 (7th Cir. 1997). When deciding a motion for summary judgment, the court considers those facts that are undisputed and views additional evidence, and all reasonable inferences drawn therefrom, in the light reasonably most favorable to the non-moving party. See Fed.R.Civ.P. 56(c); Liberty Lobby, 477 U.S. at 255; Celotex, 477 U.S. at 323; Baron v. City of Highland Park, 195 F.3d 333, 337-38 (7th Cir. 1999).

EDS has moved to strike Carver's recent submission of supplemental evidence from the deposition of Dr. Huls. The motion to strike is denied because of the difficulty the parties had in locating Dr. Huls. The supplemental evidence does not affect the court's analysis of the reasons Carver was fired.

Undisputed Facts

The following facts are either undisputed or reflect the evidence in the light most favorable to plaintiff, as the party opposing the motion for summary judgment that the court is granting.

EDS hired Carver as a permanent employee on March 16, 2000, after a period in which she had served as a contract employee beginning April 11, 1999. Complaint ¶¶ 5-6. Carver's employment was at-will. She was hired as a customer service representative. Her job duties included tracking procurement for EDS client Allison Transmission, preparing a "30-day report" that tracked the status of outstanding purchase orders, and answering client questions. During the part of Carver's employment with EDS relevant to this lawsuit, her immediate supervisor was Stephanie Moran, an EDS purchasing manager. Paula Jarvis, who reported to Moran, was Carver's team leader and assisted Moran in some of her supervisory duties. Moran reported to Marc Graham, an EDS executive who worked in another EDS office in Indianapolis.

EDS states that Carver was an employee of EDS in Indianapolis beginning March 1, 2000. Def. Br. 44 at 2.

Some documents refer to Stephanie Moran as Stephanie Pettitt.

From the beginning of Carver's employment at EDS until early December 2000, she missed between eleven and sixteen days of work. Pl. Ex. I; Carver Dep. at 54, 56-62. During that period, Carver sent two documented e-mails to notify Moran that she would be absent or tardy due to doctor appointments or medical tests on October 23rd and November 2nd. Pl. Ex. E. Moran testified in her deposition that Carver did not give just one reason that would explain all her absences: "It was just a different excuse every time." Moran Dep. at 33.

The exact number of days missed is unclear due to inconsistent estimates in the briefs and the record. EDS does not have any written policy regarding absenteeism or the number of absences from work which it deems unacceptable. EDS Policy Manual, Pl. Ex. CC.

On December 6, 2000, Moran placed Carver on a written Performance and Attendance Improvement Plan ("PAIP"), which was designed to last 60 days. Def. Ex. DEF 00193-195; Pl. Ex. I. The PAIP stated in part:

During the past several months, it has become increasingly evident to your team leader and me that you have not been performing your assigned work in accordance with what is expected of a Customer Service Representative. You have been verbally counseled on 2-3 occasions regarding your performance and your unacceptable attendance.
. . . As we have discussed in the past, frequent and/or excessive absences significantly impair your ability to perform your job, have an adverse impact on customer service, and place a burden on your teammates.
To date, there has not been sufficient improvement in your performance or attendance.

Pl. Ex. I. After the initial narrative, the PAIP set forth specific requirements for the 60-day period. During a December 6, 2000 meeting with Carver to discuss the PAIP, Moran talked with Carver about attendance and tardiness problems that affected Carver's job performance, particularly on the 30-day reports for which she was responsible. Moran Dep. at 30-31; Def. Ex. DEF 00045. By the time the PAIP expired on February 6, 2001, Carver had successfully complied with the PAIP's requirements. Moran Dep. at 47-48.

Moran testified without contradiction that she told Carver at the end of the 60-day PAIP period that she could be discharged if there was a recurrence of her performance and attendance problems. Moran Dep. at 48. (The text to this effect near the end of the PAIP document has been blacked out in both plaintiff's and defendant's exhibits. See Pl. Ex. I; Def. Ex. DEF 00194-95.)

By the December PAIP meeting, Moran was aware of at least some of Carver's ailments. During the meeting, Carver told Moran that she had experienced a "panic attack" the previous day. Moran Dep. at 34-36. Moran also was aware that Carver had some type of gastrointestinal problem for which she was taking medication. Id. at 55-56.

Carver sent six more e-mails to Moran to notify her that she would be absent or tardy due to doctor appointments or medical tests occurring on December 21, 2000, and January 19, February 1, March 6, 8, and 14, and May 17 of 2001. Pl. Ex. E. Although most of these e-mails did not explain the tests and did not mention any ailments, Carver stated in the e-mails that the March 8th test was for "GYN" and that the May 17th test required general anesthesia. Id.

On June 25, 2001, Moran sent an e-mail to Donn Patterson, Marc Graham's predecessor, in response to his request to identify "bottom performers." Pl. Ex. K; Def. Ex. DEF 00052. In the e-mail, Moran stated that she possibly had three bottom performers, one of whom was Carver. Id. In the email Moran ranked Carver as a 4 on a 1 to 5 descending scale of performance, although Moran was not sure that this was the accurate ranking. Id.; Moran Dep. at 67-68. Moran also stated in the e-mail that Carver had past attendance, job performance, and attitude problems that had been addressed through the PAIP. Moran added, "the attendance has definitely improved, and performance has become ok, negative attitude is still somewhat of an issue. Peers are complaining." Id. Moran testified that co-workers complained that Carver "would constantly complain about her job, didn't like to do her job . . . and it was a real downer for the team. And I got many complaints about how often she complained and that it was just constant." Moran Dep. at 66-67; see also Jarvis Dep. at 24-25.

The final phase of Carver's employment with EDS, leading up to her discharge, began on Friday, July 6, 2001. Carver reported to Jarvis that she would be out sick for the day. Carver Dep. at 68; Pl. Ex. M; Moran Dep. at 72, 77-79; Def. Ex. DEF 00236. Beginning on this date, Moran felt that Carver's absenteeism, addressed previously in the PAIP, was becoming a problem again. Moran Dep. at 52-54.

On the following Wednesday, July 11, 2001, Moran had a meeting with Jarvis in which Moran indicated that she had decided to discharge Carver because of the absentee issues and discussed options for absorbing Carver's job duties. Jarvis Dep. at 29-31, 33; Moran Dep. at 104-08, 129-30. That same day, Moran told Carver that she would need a doctor's excuse if she missed any more days from work, and that Carver was doing a good job. Pl. Ex. N, ¶ 8, Ex. FF.

Carver testified that on Friday, July 13, 2001, after she left work for lunch, she experienced a panic attack and went home, taking the rest of the day off. Carver Dep. at 70-75, 106-07. Carver contacted her mother, Charlotte Perkins, and asked her to call EDS to tell Moran that she was sick. Carver Dep. at 70-75, 106-07; Perkins Dep. at 6-8. Perkins called EDS. Perkins Dep. at 9-10, 12-16, 25; Pl. Ex. P (listing EDS's phone number for an 11:18 a.m. outgoing call from Perkins' phone). During the call, Perkins attempted to speak with Moran, but because Moran was out of the office, Perkins spoke with Jarvis. Jarvis Dep. at 35; Pl. Ex. BB, ¶¶ 6-7 (Perkins affidavit); Moran Dep. at 102-03. Perkins explained to Jarvis that Carver "was in very bad shape and was having a breakdown of some kind and couldn't work," and asked Jarvis for FMLA papers for Carver. Pl. Ex. BB, ¶¶ 6 (Perkins affidavit). Jarvis informed Moran at about 1 p.m. to 2 p.m. that day that Carver had left work for lunch and did not return. Moran Dep. at 99-100.

Solely for purposes of defendant's motion for summary judgment, EDS accepts Carver's version of the timing and content of the phone conversation between Perkins and Jarvis. Def. Br. 44 at 8 n. 2.

Carver did not go to work the following Monday, July 16, 2001. Perkins called Moran at 8:32 a.m. and left a voice-mail message that Carver had a doctor appointment the next day. Moran Dep. at 94-96, 107-08, 113. Sometime Monday morning, Moran called Sherri Bowman at the EDS Human Resources Department to discuss discharging Carver. Moran Dep. at 89-94, 96-97, 111-15, 129-30. Moran testified:

At her deposition, Perkins did not remember whether she left a voice-mail message for Moran on Monday, July 16th. Perkins Dep. 19-20. However, Carver accepts that view of the events in her brief. Pl. Br. 54 at 9.

I told Ms. Bowman that I had had Karen on a performance improvement plan, attendance improvement plan previously, that we had a recurrent problem that had [come] up again the previous week. That in the plan it had had a stipulation in it that if there was a recurrence of the tardiness or the absenteeism or leaving from work with no notification or not calling in that she would be discharged. So I was going through the process of terminating her. And based on the fact that I could never get a response out of Karen, I needed to ask her how was the best way about going or notifying her of her termination since she didn't come back to work and she didn't call me and I couldn't reach her.

Moran Dep. at 90.

And basically what I told her was there was a recurrent problem and I wanted to take steps to terminate, because of the previous week's instances of the same problem that had transpired in the past, which was explicitly outlined in the performance plan that could not happen again, and if it did, she would be terminated.

Moran Dep. at 92.

[Ms. Bowman] told me to call [Carver] to find out what's going on, try to find out if there is any kind of issue here, if there is a medical problem, what is going on.

Moran Dep. at 111.

Moran's folder notes of July 16, 2001 indicate that Bowman instructed Moran to ask Carver why she was missing work — whether it was, for example, because Carver was "medically unable" or "stressed out" — and how long Carver would be out of the office. Moran Dep. at 111-12. The folder notes also refer to Synchrony, a third party that handled "any kind of leave of absence." Id. Bowman gave Moran information about Synchrony again "just in case I would get an answer on these issues, if there is something wrong, let us know, but otherwise we're going to assume that its just the same situation as prior events." Moran Dep. at 113.

On Tuesday, July 17, 2001, Carver saw her doctor. Carver Dep. at 79-84. On that same day, EDS's Human Resources Department drafted a termination letter to be sent to Carver. Moran Dep. at 93, 98-99, 116. Moran took the letter to Graham for his signature. Moran Dep. at 116-117. Moran sent the termination letter to Carver that day via overnight mail informing Carver that her employment with EDS was terminated as of July 17 "for performance-related reasons." Moran Dep. at 117; Def. Ex. DEF 00198. Also, at some time on that day Moran received a fax sent at 1:25 p.m. by Perkins, containing a physician's note stating: "Karen was seen today. She was unable to work 7/16/01 and will be unable to work until 7/30/01 due to medical problems." Moran Dep. at 118; Pl. Ex. S; Def. Ex. DEF 00200. Moran believed that the decision to discharge Carver was not affected by the faxed physician's note. Moran Dep. at 121.

On July 17 and 18, the two other "bottom performers" identified by Moran in her e-mail to Patterson were also discharged. Moran Dep. at 70-71, 127-28; see also Pl. Ex. K; Def. Ex. DEF 00052. EDS personnel records indicate that the Separation Reason Code for these two employees is "103," the code for "inability to perform." Pl. Exs. Y, Z. The Code listed for Carver also is "103." Pl. Ex. B.

Discussion

I. EDS's Motion for Summary Judgment: FMLA Retaliation/Interference

Plaintiff Carver alleges that EDS fired her in retaliation for exercising her statutory right to medical leave pursuant to the FMLA. Complaint ¶ 14. The FMLA gives eligible employees the right to twelve work-weeks of unpaid leave during any twelve-month period for specified reasons. Among those reasons is a "serious health condition" that makes the employee unable to perform the functions of her position. 29 U.S.C. § 2612 (a)(1)(D). The Act prohibits employers from discriminating or retaliating against employees who exercise their rights under the Act, and from interfering with an employee's attempt to exercise those rights. 29 U.S.C. §§ 2615(a) and (b).

EDS agrees that Carver is an eligible employee protected by the FMLA and that EDS is an employer covered by the FMLA. See Def. Response to Request for Admissions, No. 1, 8.

EDS argues that Carver's complaint alleges retaliatory discharge and not a claim for interference with FMLA entitlement, so her cross-motion for partial summary judgment should be denied as being based on a non-existent claim. Def. Br. 56 at 11-12. A claim that an employer denied an employee a substantive entitlement involves a different method of proof than a claim of discrimination. Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711, 712-13 (7th Cir. 1997). However, the issue of whether Carver gave notice to EDS of the applicability of FMLA to her situation, a requirement for FMLA entitlement — see Price v. City of Fort Wayne, 117 F.3d 1022, 1025-26 (7th Cir. 1997) — is relevant to the first element of the prima facie case ( i.e., whether Carver engaged in statutorily protected activity) and to the questions of whether or when EDS had notice of a serious health condition, all of which are important for deciding Carver's claim.

The Seventh Circuit evaluates a retaliation claim under the FMLA the same way it evaluates a retaliation claim under other employment discrimination statutes such as Title VII. Buie v. Quad/Graphics, Inc., 366 F.3d 496, 503 (7th Cir. 2004). To make a case for retaliation or interference, Carver may rely on the direct method or indirect method of proof. Id. Because Carver advances her argument under the indirect method, the court evaluates her claim using a modified version of the burden shifting method derived from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

To establish a prima facie case of discrimination under the indirect method of proof, Carver must come forward with evidence tending to show: (1) she engaged in statutorily protected activity; (2) she was performing her job according to her employer's legitimate expectations; (3) despite meeting those expectations, she suffered a materially adverse employment action; and (4) she was treated worse than a similarly situated employee who did not engage in statutorily protected activity. Buie, 366 F.3d at 503; Stone v. City of Indianapolis Public Utilities Division, 281 F.3d 640, 642 (7th Cir. 2002). If Carver establishes a prima facie case, the burden of production shifts to EDS to articulate a legitimate, nondiscriminatory reason for its employment action. If EDS meets its burden of production, the burden shifts back to Carver to present evidence tending to show that the reason offered by EDS is merely a pretext for discrimination. If Carver produces evidence of pretext, a jury could infer discrimination.

Carver's prima facie case fails at the second and fourth elements. With regard to the second element, Carver has failed to present evidence that could permit a jury to find that she was meeting EDS's legitimate expectations. EDS claims that it discharged Carver mainly because of excessive and unexcused absenteeism and poor performance. EDS's offered reasons are supported by factual evidence in the record. The fact that Carver had "successfully" completed the 60-day PAIP imposed in December 2000 for absenteeism and performance problems does not mean that she had become a model employee in the view of EDS. Moran testified that Carver's absence on June 6th triggered concern that Carver's past absenteeism, which had affected her performance, was becoming an issue again.

EDS has also shown beyond reasonable dispute that Carver would have been discharged anyway as part of a reduction in force. On June 25, 2001, Moran sent an e-mail to Donn Patterson in response to his request that she identify poorly performing employees. In her e-mail, Moran identified three possible "bottom performers," one of whom was Carver. Id. The e-mail mentioned Carver's attendance and attitude problems. The other two identified employees were discharged on July 17 and July 18 of 2001, the same day and one day after Carver was discharged. Pl. Exs. B, Y, Z. So long as EDS honestly believed that Carver was a poor performer, this is a legitimate and legal explanation for her discharge.

Carver has failed to produce evidence tending to show that EDS's reasons for discharging her are pretextual. Carver claims that the evidence is conflicting regarding why Moran wanted to discharge her, what Moran knew and when she knew it, and who made the decision to discharge her and when, and that this conflict creates a material issue of fact. Carver argues that "much of this issue comes down to credibility," Pl. Br. 54 at 15, and that "while it is true that Moran and Jarvis deny much of the version of events presented by Carver and Perkins in their depositions and in the documents presented, this . . . creates a material issue of fact." Pl. Br. 54 at 22. This is an inaccurate characterization of Carver's burden. First, Carver has the burden to present specific factual evidence that disputes EDS's version of material events or that otherwise tends to show EDS's explanation for her discharge is a lie. Second, a plaintiff's self-serving statements can create an issue of material fact only where the statements have "factual support in the record." Buie, 366 F.3d at 504. The court has given Carver the benefit of inferences where facts in the record support her claims or where her claims are based on personal knowledge. Third, EDS as the moving party does not create an issue of material fact by contradicting the version of events presented by Carver; rather, it is Carver who has the burden to create a material issue of fact. Carver has not presented sufficient evidence that the offered reasons for her discharge have no basis in fact, did not actually motivate EDS's decision, or were insufficient to motivate the decision. Lesch v. Crown Cork Seal Co., 282 F.3d 467, 473 (7th Cir. 2002). The evidence on when Moran may have received FMLA notice and on when the decision to fire Carver was made is not well developed in the record. Moran may have had FMLA notice at some time between July 13th and July 17th, and Moran, or Moran and others, may have made the decision at some time between July 11th and July 17th. The temporal proximity of discharge and FMLA notice, however, is insufficient by itself to support a finding of pretext. See Buie, 366 F.3d at 509 ("given Buie's myriad problems at work, a reasonable jury could not conclude from timing alone that Quad/Graphics suspended or fired Buie because of his announcement that he had AIDS and, implicitly, because he would thus be requesting benefits under the FMLA"); Stone, 281 F.3d at 644 ("mere temporal proximity . . . will rarely be sufficient in and of itself to create a triable issue").

With regard to the fourth element of the prima facie case, Carver provides no evidence that she was treated worse than a similarly situated employee who did not notify EDS of the need for FMLA leave. In fact, the undisputed evidence supports EDS's claim that Carver was treated the same as two similarly-situated employees. In her June 25, 2001 e-mail, Moran identified for Patterson two other possible "bottom performers" along with Carver. The record contains no evidence that the other two employees had serious health conditions or had asked for FMLA leave. All three employees were given Separation Reason Codes "103," which signified an "inability to perform." There is no evidence that these employees were not similarly situated to Carver or that Moran did not believe that they were similarly situated.

Instead, Carver offers alternative candidates for "similarly situated" employees. Carver contends that it was common during her time at EDS for other employees to leave work early for various reasons and not to be disciplined or fired. Pl. Ex. N, ¶ 4. Disparate discipline of an employee who is situated similarly to the plaintiff but who is outside of the protected class may support an inference of discrimination. Appelbaum v. Milwaukee Metropolitan Sewerage Dist., 340 F.3d 573, 580 (7th Cir. 2003). But Carver fails to offer any evidence that these other employees were situated similarly to her — for example, that they also had a history of absences, a PAIP based on absences and performance problems, and documented attitude problems. See Dandy v. United Parcel Service, Inc., 388 F.3d 263, 273 (7th Cir. 2004) (stating that the plaintiff has the burden to prove that she is "similarly situated" to comparators by presenting evidence of similar attributes and a cogent analysis); Grayson v. O'Neill, 308 F.3d 808, 819 (7th Cir. 2002) (to be considered similarly situated to a plaintiff, an individual must be directly comparable to the plaintiff "in all material respects").

Carver refers to another EDS employee, Susan Bramlage, who was discharged on April 3, 2002 as part of a reduction in force six months after returning from maternity leave. Pl. Br. 54 at 13; Pl. Ex. HH. In her affidavit, Bramlage referred to two other EDS employees who were discharged after returning from FMLA leave. Pl. Ex. HH. Individual plaintiffs sometimes use evidence of a pattern or practice of discrimination as evidence of pretext to bolster their own disparate treatment claims. See, e.g., Bell v. Envt'l Protection Agency, 232 F.3d 546, 552-53 (7th Cir. 2000). Without additional evidence and analysis by Carver, a reasonable jury could not find that EDS has engaged in a pattern or practice of discrimination against employees who take FMLA leave based on this single affidavit and its claims. See Bazemore v. Friday, 478 U.S. 385 (1986) (referring to types of evidence needed to show a prima facie case of pattern or practice of discrimination); Balderston v. Fairbanks Morse Engine Division of Coltec Industries, 328 F.3d 309, 319 (7th Cir. 2003) (same); Guerrero v. Ashcroft, 253 F.3d 309, 315-16 (7th Cir. 2001) (same); EEOC v. Chicago Miniature Lamp Works, 947 F.2d 292, 297 (7th Cir. 1991) (same).

The undisputed facts show that Carver's prima facie case fails at the second and fourth elements. Accordingly, the court grants EDS's motion for summary judgment on Carver's FMLA cause of action.

II. EDS's Motion for Summary Judgment: State Law Wrongful Discharge

Carver's wrongful discharge claim invokes a limited public policy exception to Indiana's doctrine of employment at will. Carver does not dispute that she was an at-will employee at EDS. Indiana courts recognize an exception to the employment-at-will doctrine if an employee is discharged for exercising a statutory right or for refusing to participate in an unlawful act for which the employee would personally be held liable. McClanahan v. Remington Freight Lines, Inc., 517 N.E.2d 390, 392-93 (Ind. 1988); Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425 (Ind. 1973). The claim fails on its merits, however. In light of the comprehensive remedial scheme of the FMLA, Indiana common law would not extend the public policy exception to this case.

The lack of any other effective remedy was an important factor motivating the Indiana court to provide discharged employees with a common law cause of action. The Indiana Supreme Court found in Frampton that, absent the opportunity to bring a wrongful discharge claim based on public policy, the plaintiff would have been left without a remedy and subject to retaliatory discharge for filing for worker's compensation, effectively nullifying the statute's protections. Frampton, 297 N.E.2d at 427-28 (recognizing exception where worker's compensation statute did not authorize a right of action for retaliatory discharge); see also Reeder-Baker v. Lincoln National Corp., 644 F. Supp. 983, 986 (N.D. Ind. 1986) (recognizing that "the Frampton exception to the at-will doctrine was intended to protect an employee without a remedy").

The Seventh Circuit and district courts in Indiana have repeatedly predicted that Indiana courts would not recognize a common law claim for wrongful discharge contrary to public policy where the underlying statute establishes its own remedies and procedures for discrimination and retaliatory discharge. Groce v. Eli Lilly Co., 193 F.3d 496, 504 (7th Cir. 1999); Combs v. Indiana Gaming Co., 2000 U.S. Dist. Lexis 16658, 2000 WL 1716452 (S.D. Ind. Aug. 30, 2000); Reeder-Baker, 644 F. Supp. 983. In Groce, the Seventh Circuit affirmed the dismissal of the plaintiff's wrongful discharge claim because the plaintiff did not pursue the remedies provided by the Indiana Occupational Safety and Health Act and because the Indiana courts were unlikely to expand the public policy exceptions to the at-will doctrine where the plaintiff had statutory remedies. Similarly, the Reeder-Baker court held that the plaintiff had no need for the Frampton exception because she had a cause of action under Title VII for unlawful employment practices, including retaliatory discharge. 644 F. Supp. at 986.

Like the plaintiffs in Groce and Reeder-Baker, Carver has an alternative to the common law wrongful discharge claim: her FMLA action. The FMLA provides a comprehensive remedial scheme, including a remedy for retaliatory discharge. Accordingly, Indiana law leaves Carver to pursue any remedy under the FMLA itself. She has not stated a cognizable claim for retaliatory discharge under Indiana law. EDS's motion for summary judgment on the state law wrongful termination claim is therefore granted.

III. Carver's Cross Motion for Partial Summary Judgment: FMLA Entitlement

EDS claims that Carver would have been discharged anyway as part of a reduction in force, regardless of whether her absence on July 16th and 17th was covered by the FMLA. The undisputed evidence supports EDS's contention. The two other employees also identified by Moran as "bottom performers" in Moran's June 2001 e-mail to Patterson were discharged on July 17th and 18th. Even assuming that Carver's absences in July could be reclassified as FMLA leave and that Carver had taken FMLA leave, it was not a violation of the FMLA for EDS to discharge her on July 17th as part of a reduction in force. See Phelan v. City of Chicago, 347 F.3d 679, 684 (7th Cir. 2003). Carver would have had the burden to show that EDS would not have discharged her if she had not taken FMLA leave. She would not have fared any better that she did on her claim of interference with her FMLA rights. See Kohls v. Beverly Enterprises Wisconsin, Inc., 259 F.3d 799, 804-05 (7th Cir. 2001). Carver has suffered no FMLA violation based on EDS's employment actions.

Conclusion

Carver has failed to come forward with evidence sufficient to support all the elements of her prima facie case of retaliation/interference. She also has not provided evidence that would allow a reasonable jury to find that EDS's offered reasons for discharging her are pretexts. Her state law claim for wrongful discharge also fails because Indiana common law would not supplement the detailed remedial scheme established under FMLA itself. Accordingly, defendant's motion for summary judgment is granted, and Carver's cross-motion for partial summary judgment on the issue of her entitlement to FMLA leave is denied. Final judgment shall be entered dismissing all claims with prejudice.

So ordered.


Summaries of

Carver v. Electronic Data Systems Corp.

United States District Court, S.D. Indiana, Indianapolis Division
Feb 11, 2005
Cause No. 1:03-cv-01033-DFH-VSS (S.D. Ind. Feb. 11, 2005)

noting that the lack of any effective remedy for retaliation might otherwise negate the protections of the statute, thereby increasing the relevance of the Frampton analysis

Summary of this case from Gerardot v. Life Care Ctrs. of Am., Inc.
Case details for

Carver v. Electronic Data Systems Corp.

Case Details

Full title:KAREN CARVER, Plaintiff, v. ELECTRONIC DATA SYSTEMS CORP., Defendant

Court:United States District Court, S.D. Indiana, Indianapolis Division

Date published: Feb 11, 2005

Citations

Cause No. 1:03-cv-01033-DFH-VSS (S.D. Ind. Feb. 11, 2005)

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