Opinion
Case No. 4:03-cv-0149-DFH-WGH.
March 25, 2005
ENTRY ON MOTION FOR SUMMARY JUDGMENT
This lawsuit presents numerous issues under Title VII of the Civil Rights Act of 1964, the Family and Medical Leave Act of 1993, and state law. Plaintiff Tonya Campbell worked as a production employee at defendant Cummins, Inc., a manufacturer of diesel engines. Campbell was subjected to unwanted and intimate touching by a truck driver who was not employed by Cummins but who made regular deliveries to Cummins. Campbell alleges that this conduct and subsequent events created a sexually hostile work environment, and that Cummins failed to remedy the situation, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. Campbell also alleges that Cummins retaliated against her because of her complaints of harassment, culminating in her discharge. Campbell also alleges that Cummins interfered with the exercise of her statutory right to medical leave pursuant to the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601 et seq., and retaliated against her for exercising her FMLA rights. She has also brought a supplemental state law claim for intentional infliction of emotional distress.
Defendant Cummins has moved for summary judgment. As explained below, the undisputed facts show that, assuming the outside truck driver's conduct created a hostile work environment for Campbell, Cummins took reasonable steps to remedy the situation. Campbell has failed to show she was entitled to FMLA leave. She has failed to come forward with evidence that Cummins retaliated against her, by firing her or otherwise, for complaining about harassment or for attempting to exercise FMLA rights. Campbell's state law claim also fails for lack of outrageous conduct by Cummins. Accordingly, the court grants defendant's motion for summary judgment in its entirety.
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 parties 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 parties believe 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 parties have 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.
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 nonmoving party. See Fed.R.Civ.P. 56(c); Anderson v. 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). However, a party must present more than mere speculation or conjecture to defeat a summary judgment motion. The issue is whether a reasonable jury might rule in favor of the non-moving party based on the evidence in the record. Anderson v. 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).
Undisputed Facts
The following facts are either undisputed or reflect the evidence in the light most favorable to plaintiff Campbell as the party opposing summary judgment. Adverse facts established by Cummins beyond reasonable dispute are necessarily included in the narrative.
Plaintiff Tonya Campbell was hired on May 10, 1999 to work on the assembly line at the Cummins diesel engine manufacturing facility. Around April 2000, Cummins moved her to a Fabrication Materials Handler position. Campbell Dep. at 65-67. Campbell remained in the Fabrication Materials Handler position until Cummins transferred her to the Paint and Tag Department in April 2002. Id. at 73. Campbell never actually worked in the Paint and Tag Department, however. She did not show up for work after April 15, 2002. Cummins terminated her employment in July 2002. Def. Ex. Z.
In her position as Fabrication Materials Handler, Campbell came into contact with Reggie Jordan, a truck driver employed by Ryerson Tull, who delivered steel to Cummins. Campbell Dep. at 107-08. Jordan made regular deliveries to Cummins, three days each week. Id. at 137-38. He was at Cummins for between 15 and 30 minutes during each delivery. Id. Campbell unloaded Jordan's truck every second time Jordan made a delivery. Id. at 108-09, 138.
In June or July 2001, Jordan began hugging Campbell regularly when he made his deliveries. Campbell Dep. at 110. Campbell did not report Jordan's conduct at that time to anyone in Cummins' management. Id. at 110-11. Campbell's coworker, Debbie Wallace, noticed on several occasions that Campbell would hide when Jordan arrived to make a delivery, Wallace Aff. ¶ 12, but there is no evidence that Wallace, Campbell, or anyone else notified any Cummins management of the problem.
On September 7, 2001, Jordan walked up behind Campbell, who was sitting at her desk, wrapped his arms around her and kissed her on both of her cheeks. Campbell Dep. at 105-06. Campbell immediately reported this incident to her supervisor, Claude Hill. Id. at 106. Hill gave Campbell his pager number and told her to page him if it happened again. Id.
On September 10, 2001, Campbell's next work day, a more serious incident occurred. Jordan put his arms around Campbell from behind and raised her off the floor with his arms around her breasts, raising her brassiere, and carried her toward the back door. Campbell Dep. at 112-13. Hill was not at work that day, so Campbell tried to find her union steward, John Stultz, to tell him what had happened. When Campbell could not find Stultz, she reported both the September 7th and 10th incidents with Jordan to John Drybread, Hill's supervisor. Id. at 113-14. Drybread responded, "Sounds to me he's horned up." Id. at 115. Campbell then told Drybread she was leaving work for the remainder of the day, and he responded "That's fine. You go home and get settled down." Id. Campbell did not report to work on September 11th — a day memorable for other reasons — but returned on September 12th. Id.
When Jordan made his regular delivery on September 12th, Drybread, Hill, and Stultz spoke with him. Campbell Dep. at 116. Afterward, Stultz told Campbell that they had warned Jordan that "he cannot be doing — having that kind of behavior" and that his conduct was jeopardizing his and Campbell's jobs. Id. Campbell had no further problems with Jordan on September 12th or any time during the remainder of that week. Id. at 117, 124.
On September 17, 2001, Campbell reported the September 7th and 10th incidents to David Beatty, Cummins' Human Resource Manager. Campbell Dep. at 118. Beatty had not heard about Jordan's conduct before that time. Id. Campbell was worried about losing her job based on the comments by Stultz, but Beatty assured her that her job was not in jeopardy. Id.
Between September 17th and 20th, Beatty spoke with several individuals, including Campbell, Wallace, Hill, Drybread, Stultz, Jordan, and Jordan's supervisor at Ryerson Tull, Bruce Bush. Jordan admitted to kissing Campbell and picking her up. Def. Exs. D, E. Beatty completed his investigation on September 21, 2001. Def. Ex. D.
Shortly after completing the investigation, Beatty reported the results of his investigation to Campbell. He asked her if she felt comfortable continuing to work around Jordan if a manager or supervisor was present. Campbell Dep. at 120. Campbell responded, "if that's what I have to do, that's what I have to do." Id. A supervisor watched Campbell unload Jordan's truck twice during either the same or the following week. Id. at 122.
Campbell filed a charge of discrimination with the Indiana Civil Rights Commission on September 21, 2001. Def. Ex. F. In the charge, Campbell referred to the incidents with Jordan and the statement by Stultz that he would hate to see Campbell and Jordan lose their jobs. Id. The complaint was cross-filed with the EEOC. Complaint ¶ 8. Cummins was notified of the charge on October 9, 2001.
By letter dated October 10, 2001, Cummins told Jordan's employer that Jordan was not permitted to make any more deliveries to Cummins or to visit the premises. Campbell Dep. at 138; Pl. Ex. 16. The letter, signed by Beatty, stated:
To confirm our phone conversation this morning, Reggie Jordan is not to make any more deliveries to the Cummins Industrial Center. He also is not to visit the site in any capacity or speak to any Cummins employee. This action is necessary due to a complaint we received about Reggie's conduct from one of our employees. We are currently investigating this complaint and we will let you know what we find. We trust that you will also be looking into this matter and that you will take appropriate action.
Def. Ex. G. Beatty told Campbell of the actions Cummins had taken with respect to Jordan and showed her the letter. Campbell Dep. at 124. Beatty sent Campbell a letter on October 16, 2001, confirming that Jordan had been banned from Cummins' premises, and that Campbell should tell him of any actions that she believed may be retaliatory. Campbell Dep. at 139-40; Pl. Ex. 19.
Beginning that October, Campbell reported several incidents that concerned her. Several fellow employees at Cummins called her a snitch. Some refused to talk to her. Wallace Aff. ¶¶ 13-14. Campbell reported to Chuck Manzione from Cummins' Safety Department that a dead rat had been placed in the trash can at her workstation. Campbell Dep. at 128, 131. Cummins installed a camera in her work area. Id. at 198. On October 17th, a hydraulic line on Campbell's reach truck came off the pulley assembly. Def. Ex. H. Maintenance was called in to repair the truck. Def. Ex. H. On October 18th, maintenance reported to Manzione:
[Maintenance] explained that it was highly unusual for a vehicle as new as this one (300 hours) to have the hose come off on its own, especially since there was not a lot of stretch in the hose. The [maintenance] technician proceeded to show us how easy it could be for someone to deliberately pull the hose off the pulley. He did go on to say that at no time was the employee's safety in jeopardy. He further added that in extreme cases . . . the hose can pop off the pulley on its own . . . possible but not likely.
I am satisfied that this was not a safety issue per se but I am unconvinced that sabotage was not involved. I feel given the facts and the circumstances surrounding this employee that further investigation or monitoring of the situation is needed.
Def. Ex. H. Manzione did not investigate further because there were no leads. Campbell Dep. at 135. Campbell reported the rat and the reach truck problem to the Indiana Civil Rights Commission. Def. Ex. T.
In December 2001, Namon Howard was transferred to Campbell's department in lieu of being terminated. Campbell Dep. at 72. Campbell trained Howard, who had more seniority than Campbell, to work in her position. Id. at 73. In April 2002, Cummins transferred Campbell to the Paint and Tag Department. Id. at 72-73. There was no difference in pay or benefits between Campbell's position as a Fabrication Materials Handler and the transfer position. Id. In her new position, Campbell would have painted engines, a job that she had done twice before at Cummins. Id. at 69-70. Campbell never actually worked in the Paint and Tag Department after her transfer, however. Id. at 70.
Campbell's situation subsequently began to deteriorate. From April 15, 2002 onward, until her discharge in July, Campbell did not show up to work at Cummins. Campbell Dep. at 70, 149, 159. On April 15th, Campbell made an appointment to be seen for depression at Solutions, an employee assistance and consultation service. Def. Ex. R. Campbell's treatments at Solutions were covered under the Cummins' group insurance plan. Def. Ex. S. Campbell went to Solutions on April 19th and 24th. Def. Ex. O.
It is unclear whether the April 24th visit was for treatment, but the court assumes that it was for purposes of summary judgment.
On her April 24th visit to Solutions, Campbell brought a Cummins Weekly Indemnity Claim Form, known at Cummins as a "blue form." Def. Ex. O. Cummins required a blue form to be filled out by an attending physician before an employee could claim weekly indemnity benefits. Def. Exs. N, M. Ileana Freeman of Solutions, after consulting with Dr. Susan Shanklin, concluded that the blue form had been meant for an attending physician. Freeman told Campbell over the phone that it would be best if her family physician, Dr. Calhoun, filled out the form. Def. Ex. O. Campbell did not want Dr. Calhoun to fill out the blue form, but she agreed with Freeman's suggestion that she have her medical evaluation at Psychiatric Associates. Freeman also told Campbell that a short note could be prepared for Cummins as a proof of Campbell's visit and treatment at Solutions, and that she could pick up the note on May 1st.
Campbell was already familiar with the blue form by April 24, 2002. She had submitted a blue form explaining that she had been unable to work from October 29 and November 5, 2001 due to treatment for anxiety. She also had submitted blue forms from her chiropractor explaining that she had been unable to work from January 7 to February 18, 2002 due to back injury. Cummins considered her absences during that period to be excused. Campbell Dep. at 145-47; Pl. Exs. 22, 23, 24.
On May 1, 2002, Freeman stated in a letter addressed to Cummins:
Since April 19, 2002, Mrs. Campbell has been working with our Solutions office regarding symptoms of depression that she is experiencing. We have referred her for a psychiatric evaluation at Psychiatric Associates, and we are waiting for them to give us a specific date when Mrs. Campbell will be able to have this evaluation. Once she is evaluated by Psychiatric Associates, we will have appropriate recommendations for her treatment.
Def. Ex. J.
Cummins had already notified Campbell on April 25th and 29th that she had excessive absences under the absence policy. Def. Exs. V, W, X. On May 6th, Cummins sent a letter to Campbell telling her that, as of April 29, 2002, she had incurred at least five excessive occurrences under Cummins' absence policy. Campbell Dep. 151; Pl. Ex. 28; see also Campbell Dep. 147-150; Pl. Exs. 25-27. The May 6th letter stated, "Any absences covered by an approved leave of absence or weekly benefits will be removed from [Campbell's] record, if excused," and warned her that she would be subject to discharge if such verification was not received within 14 days. Campbell Dep. at 151; Pl. Ex. 28.
Cummins' absence policy was based on "occurrences," which included unexcused absences. Pl. Ex. 7. Employees were allowed one occurrence per month without penalty. Id. Occurrences after the first in a month were considered "excessive occurrences," and five excessive occurrences within a rolling 12-month period resulted in termination of employment. Id.; Lynch Aff. ¶ 5. Absences were excused for many reasons, including illness. Pl. Ex. 7.
In response to the May 6th letter from Cummins, Campbell gave union steward Stultz the May 1, 2002 letter from Freeman. Campbell Dep. at 151-52. Soon thereafter, Campbell called Stultz and asked if he had turned in the letter to Cummins management. Id. at 154. Stultz told Campbell that she needed to have a blue form filled out. Id. Cummins' Jane States sent an e-mail to Natasha Smith on May 22nd stating that Cummins had received documentation of Campbell's April 19th absence for her visit to Solutions. Campbell Dep. at 158-59, Pl. Exs. 29, 31. Cummins had not received documentation for any other absences since April 15th.
On May 17, 2002, Campbell saw Susan Kell, MSN, for a medical evaluation. Campbell Dep. at 154; Def. Exs. O, U. The time for Campbell to verify that her absences were excused was running out. Campbell asked Kell to fill out the blue form. Def. Ex. O. Kell told Campbell that she preferred not to sign the form. Kell felt that Campbell had symptoms of depression, and she prescribed an antidepressant. She did not believe that Campbell was feeling so sick that she could not work. Def. Exs. O, U.
Campbell then called the union and asked if she could take the absences as FMLA leave. Campbell Dep. at 154. The steward told her that she could. Id. at 91, 155. Campbell's husband came to the Cummins security office to pick up FMLA forms, and after an argument with Cummins staff, left with the FMLA forms. Id. at 91, 95, 100-101, 154. Stultz and John Cain, another union representative, later told Campbell that she was not eligible for FMLA leave. Id. at 91, 95, 155-56. Around July 1, 2002, Campbell had a telephone conference call with representatives of Cummins and her union. Id. at 159-62; Pl. Ex. 32. Campbell was again told that she needed to submit a blue form to cover her absences. Id.
Campbell did not submit documentation with respect to her absences other than the May 1st letter from Freeman. Campbell Dep. at 156-57, 162. She never submitted an application for FMLA leave or any FMLA forms. Id. at 88, 95. She never submitted a blue form to Cummins. Id. at 162. Nor did she submit any medical certification to Cummins indicating that she was unable to work. Id. at 181. Before this court, Campbell still has not submitted any medical evidence that she was unable to work at the relevant times. Cummins fired Campbell effective July 9, 2002. Def. Ex. Z; Lynch Aff. ¶ 6.
Other facts are included below, keeping in mind the standard for summary judgment.
Discussion
I. Title VII Sex Discrimination
Title VII makes it "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin[.]" 42 U.S.C. § 2000e-2(a)(1). Thus, the statute prohibits an employer from "requiring people to work in a discriminatorily hostile or abusive environment." Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 975 (7th Cir. 2004), quoting Shanoff v. Illinois Dep't of Human Services, 258 F.3d 696, 701 (7th Cir. 2001), quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
Campbell claims that Cummins discriminated against her on the basis of sex by subjecting her to a sexually hostile work environment. To survive summary judgment on this claim, Campbell must come forward with evidence that would allow a reasonable fact finder to conclude that: (1) she was subject to unwelcome harassment; (2) the harassment was based on her sex; (3) the harassment was sufficiently severe or pervasive so as to alter the conditions of her employment and to create a hostile or abusive working environment; and (4) there is a basis for employer liability. McPherson v. City of Waukegan, 379 F.3d 430, 438 (7th Cir. 2004); accord, Cerros v. Steel Technologies, Inc., 288 F.3d 1040, 1045-46 (7th Cir. 2002) (hostile work environment claim based on national origin and race); Mason v. Southern Illinois Univ. at Carbondale, 233 F.3d 1036, 1043 (7th Cir. 2000) (hostile work environment claim based on race).
Jordan relies on the following incidents to show a hostile environment. Jordan hugged her regularly during June or July of 2001, hugged her and kissed her cheeks on September 7, 2001, and picked her up with his arms, touching her breasts, on September 10th. When Campbell told Cummins manager Drybread about the incidents with Jordan, he responded, in part, "Sounds to me he's horned up."
A. Unwelcome Harassment Based on Sex
The evidence could easily support a finding that Jordan's unwelcome touching alone was unwelcome harassment based on sex. There is no evidence that this attention was welcome, and a jury could easily find that Jordan's unwelcome attention occurred because Campbell is female.
To the extent Campbell is complaining about actions of fellow Cummins employees after September 10th, she has produced no evidence that those incidents occurred because she is female. The court limits the remainder of the hostile workplace analysis to her interactions with Jordan and to Cummins' response to the situation.
B. "Severe or Pervasive"
The next issue is whether the conduct was sufficiently severe or pervasive to support a claim under Title VII. To be considered severe or pervasive, the conduct must have been objectively hostile or abusive, and the target also must have subjectively perceived it that way. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22 (1993). The court must consider the totality of the relevant circumstances. Id. at 23; Murray v. Chicago Transit Auth., 252 F.3d 880, 889 (7th Cir. 2001); Mason, 233 F.3d at 1044-45.
A fact finder could easily conclude that Campbell subjectively perceived her work environment to be hostile and abusive. She tried to avoid Jordan on his deliveries, she was visibly upset after the September 10th incident, and she complained about his behavior to her supervisors and to Human Resources. She also filed a complaint with the ICRC and EEOC.
To ascertain whether Campbell's work environment was objectively hostile or abusive, the court must consider all the circumstances, including the frequency of the discriminatory conduct; the severity of the conduct; whether the conduct was physically threatening and/or humiliating, or merely an offensive utterance; and whether that conduct unreasonably interfered with Campbell's work performance. See McPherson, 379 F.3d at 438; Wyninger, 361 F.3d at 975-76. Not every unpleasant workplace is a hostile environment. Although hostile work environment claims do not require proof of tangible psychological injury, they require proof that goes beyond evidence of an uncomfortable or "merely offensive" work environment. See Wyninger, 361 F.3d at 977; Cerros, 288 F.3d at 1046. The boundary between actionable harassment and less severe conduct is not a bright one. The federal courts have struggled case by case.
For example, Cummins relies on several cases finding that some unwelcome physical contact did not amount to actionable harassment. See Koelsch v. Beltone Electronics Corp., 46 F.3d 705, 708 (7th Cir. 1995) (finding two incidents of physical contact — rubbing of foot against plaintiff's leg during meeting and grabbing of her buttocks during plant tour — not severe or pervasive enough to render work environment hostile); Saxton v. American Tel. Tel. Co., 10 F.3d 526, 533-34 (7th Cir. 1993) (finding two incidents of physical contact while away from the workplace — placing of hand on plaintiff's leg and knee and rubbing hand along her upper thigh, and kissing — did not support hostile environment claim); Weiss v. Coca-Cola Bottling Co. of Chicago, 990 F.2d 333, 337 (7th Cir. 1993) (finding no actionable harassment where plaintiff's supervisor asked her out on dates, placed "I love you" signs in her work area, attempted to kiss her, and put his hand on her shoulder several times).
In Hostetler v. Quality Dining, Inc., 218 F.3d 798 (7th Cir. 2000), the Seventh Circuit discussed and distinguished those cases and gave district courts and parties helpful guidance in where to draw the legal line, especially on summary judgment. The Seventh Circuit reversed summary judgment for the employer in the case. While Hostetler was using the computer in the restaurant's cash booth, a fellow assistant supervisor grabbed her face and "stuck his tongue down her throat." She pulled away from him, gathered her belongings, and left the store. The next day, Hostetler was again working in the restaurant's office when the fellow supervisor came up from behind her, took her face in his hands, and turned it toward him. Thinking that he was about to kiss her again, Hostetler bent over and placed her head between her knees. The harasser then began to unfasten her brassiere, but was thwarted by the arrival of another employee. Hostetler then reported the incidents to her employer. 218 F.3d at 802.
The district court granted summary judgment to the employer, concluding that the small number of acts, taking place as they did over a matter of days, showed the harassment was not pervasive. The district court also concluded that the harassment was not severe. The court viewed the acts described by Hostetler as comparable to those in Weiss and Saxton. Id. at 805-06.
The Seventh Circuit reversed and remanded the case for trial:
The Supreme Court has reminded us that "the objective severity of the harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering `all the circumstances.'" That assessment also must be made with "an appropriate sensitivity to social context," lest Title VII become a "general civility code for the American workplace." As we observed in Baskerville:
Drawing the line is not always easy. On one side lie sexual assaults; other physical contact, whether amorous or hostile, for which there is no consent express or implied; uninvited sexual solicitations; intimidating words or acts; obscene language or gestures; pornographic pictures. On the other side lies the occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers. We spoke in Carr of "the line that separates the merely vulgar and mildly offensive from the deeply offensive and sexually harassing." It is not a bright line, obviously, this line between a merely unpleasant working environment on the one hand and a hostile or deeply repugnant one on the other. . . .
We have no doubt that the type of conduct at issue here falls on the actionable side of the line dividing abusive conduct from behavior that is merely vulgar or mildly offensive. Two of the three acts at issue in this case involved unwelcome, forcible physical contact of a rather intimate nature. . . . A reasonable person in Hostetler's position might well experience that type of behavior as humiliating, and quite possibly threatening. . . .
The more specific, and more difficult, question that we must answer is whether the behavior was so serious that the finder of fact could label Hostetler's work environment hostile notwithstanding the limited number of the acts involved. Harassment need not be severe and pervasive to impose liability; one or the other will do. There is no "magic number" of incidents required to establish a hostile environment. We have repeatedly recognized that even one act of harassment will suffice if it is egregious.
The two principal acts at issue in this case were physical, rather than verbal harassment. Physical harassment lies along a continuum just as verbal harassment does. There are some forms of physical contact which, although unwelcome and uncomfortable for the person touched, are relatively minor. Cumulatively or in conjunction with other harassment, such acts might become sufficiently pervasive to support a hostile environment claim, but if few and far between they typically will not be severe enough to be actionable in and of themselves. A hand on the shoulder, a brief hug, or a peck on the cheek lie at this end of the spectrum. Even more intimate or more crude physical acts — a hand on the thigh, a kiss on the lips, a pinch of the buttocks — may be considered insufficiently abusive to be described as "severe" when they occur in isolation. But the acts described in these cases lie at the outer boundaries of conduct that can be labeled non-severe at the summary judgment stage. When the harassment moves beyond the sort of casual contact which (if it were consensual) might be expected between friendly co-workers, and manifests in more intimate, intrusive forms of contact, it becomes increasingly difficult to write the conduct off as a pedestrian annoyance. . . . The sole question is whether these acts are severe enough, without the added weight of repetition over time or cumulation with other acts of harassment, to stand alone as the basis for a harassment claim. Holding such acts not to be severe as a matter of law is another way of saying that no reasonable person could think them serious enough to alter the plaintiff's work environment. That proposition becomes dubious when the conduct at issue involves unwelcome contact with the intimate parts of one's body.
The physical, intimate, and forcible character of the acts at issue here persuades us that a factfinder could deem Hostetler's work environment hostile. . . . These acts exceed the kind of fumbled and inappropriate attempts to kiss or embrace the plaintiff that we dealt with in Saxton, Weiss, and like cases. A factfinder reasonably could interpret the alleged course of conduct as sufficiently invasive, humiliating, and threatening to poison Hostetler's working environment — indeed, overtones of an attempted sexual assault can be seen in the second incident in particular.Id. at 807-09 (internal citations omitted).
Applying the standard in Hostetler, the court cannot find as a matter of law that Jordan's conduct was not severe enough to be actionable harassment. Although the hug and kisses to the cheek on September 7th were relatively less severe, Campbell's account of the September 10th incident could meet the Hostetler standard. Campbell testified that Jordan "came in, came up from behind me, picked me up off the floor with his arms around my breasts, raising my bra up over my breasts." Campbell Dep. at 113. Such contact with intimate parts of one's body is not conduct that one should have to anticipate in the workplace. See Hostetler, 218 F.3d at 807-09. There is at least a genuine issue of material fact whether the unwelcome attention from Jordan was sufficiently severe and/or pervasive to support Campbell's hostile work environment claim.
C. Employer Liability
Campbell has not sued Jordan or even Jordan's employer. She has sued Cummins. To hold Cummins liable for Jordan's actions, Campbell must show that Cummins was negligent in failing to discover the harassment or in its efforts to prevent further harassment. See Mason v. Southern Illinois Univ. at Carbondale, 233 F.3d 1036, 1043 (7th Cir. 2000); Adusumilli v. City of Chicago, 164 F.3d 353, 361 (7th Cir. 1998); Baskerville v. Culligan Int'l Co., 50 F.3d 428, 431-32 (7th Cir. 1995). Campbell's hostile work environment claim fails on this element of employer liability.
In hostile work environment cases, "the employer can avoid liability for its employees' harassment if it takes prompt and appropriate corrective action reasonably likely to prevent the harassment from recurring." Tutman v. WBBM-TV, Inc./CBS, Inc., 209 F.3d 1044, 1048 (7th Cir. 2000). Generally, the law does not charge an employer with knowledge of the harassment "unless the employee makes a concerted effort to inform the employer that a problem exists." Rhodes v. Illinois Dep't of Transp., 359 F.3d 498, 506 (7th Cir. 2004), citing Silk v. City of Chicago, 194 F.3d 788, 807 (7th Cir. 1999).
Campbell argues that Cummins' response was negligent in two respects: her complaints to her supervisors were initially ignored, and Cummins' later responses were inadequate to remedy the situation. The undisputed evidence shows otherwise.
Campbell reported Jordan's behavior to Cummins management for the first time on September 7, 2001. There is no evidence that Cummins should have known of the past instances of Jordan's unwelcome touching of Campbell. Campbell reported the September 7th incident to Hill, who promptly gave Campbell his pager number and told her to page him if it happened again. The September 7th incident was relatively mild. In the words of Hostetler, it is close to the minor end of the physical harassment spectrum, even though unwelcome and uncomfortable. 218 F.3d at 808. A reasonable fact finder could not conclude that Hill's response to the first complaint of relatively minor harassment was negligent, especially where the complaint concerned a person who was not a Cummins employee and who had already left the premises.
The September 10th incident was, based on Campbell's evidence, considerably more serious, and drew a swift and stronger response. After the incident on September 10th, Campbell reported both incidents to Drybread. Irrespective of Drybread's tactless response — "Sounds to me he's horned up" — when Jordan made his regular delivery on September 12th, Drybread, Hill, and Stultz warned him that he should stop his behavior and that his conduct was jeopardizing his job. The undisputed facts show that there were no more incidents of harassment by Jordan. A reasonable fact finder could not conclude that Cummins' immediate warning to Jordan was a negligent response to Campbell's second and more severe complaint of harassment. Campbell's speculation that the lack of further problems with Jordan was due to fortuity rather than the warning, see Pl. Br. at 14, cannot create a genuine issue of fact. See Liberty Lobby, 477 U.S. at 252.
On September 17, 2001, Campbell reported Jordan's behavior to Beatty at Human Resources. Beatty had not heard about Jordan's conduct before that time. Beatty instigated an investigation promptly upon being told of the incidents. Between September 17th and 20th, Beatty spoke with several individuals, including Campbell, Wallace, Hill, Drybread, Stultz, Jordan, and Jordan's supervisor.
Beatty soon reported the results of his investigation to Campbell. He asked her if she felt comfortable continuing to work around Jordan if a manager or supervisor was present. Campbell responded, "if that's what I have to do, that's what I have to do." Campbell Dep. at 120. Thereafter, a supervisor watched Campbell unload Jordan's truck twice during either the same or the following week. Although this remedial effort may not have met Campbell's expectations, a reasonable fact finder could not conclude that this response was not timely or was not reasonably likely to prevent a recurrence of Jordan's harassing conduct.
The day after Cummins was notified of Campbell's EEOC charge of discrimination, Cummins told Jordan's employer that he was banned from the Cummins premises. Campbell points out that Cummins took this more severe step a month after her initial complaint to Hill and 23 days after she complained to Beatty, and then only because she filed a charge. However, given the undisputed absence of any further problems with Jordan after the September 12th warning, a reasonable fact finder could not conclude that the banning of Jordan occurred too late or was even necessary to stop the harassment. There is no evidence that Cummins' first remedy — warning Jordan and having a supervisor present when Campbell unloaded Jordan's truck — was not by itself reasonably likely to stop the harassment.
In sum, a reasonable fact finder could not find on this record that Cummins was negligent in remedying the harassment by Jordan. Cummins took prompt and appropriate corrective action that was reasonably likely under the circumstances to prevent the harassment from recurring. See Williams v. Waste Management of Illinois, Inc., 361 F.3d 1021, 1030-31 (7th Cir. 2004) (where plaintiff's complaint was addressed within 24 hours, supervisors dealt sternly with harassers, supervisors devised plan for plaintiff to avoid harassers, and no further race-based harassment occurred, employer acted promptly and appropriately).
II. Retaliation Under Title VII
Campbell claims that Cummins retaliated against her for filing her charge with the ICRC and the EEOC. She has no direct proof of retaliatory intent, but she seeks to use the indirect method of proof. Under the indirect method, Campbell must show that (1) she engaged in statutorily protected activity; (2) she performed her job according to her employer's legitimate expectations; (3) despite her satisfactory performance, she suffered an adverse action by her employer; and (4) she was treated less favorably than similarly situated employees who did not engage in statutorily protected activity. Williams v. Waste Management, 361 F.3d at 1031; Sitar v. Indiana Dep't of Transp., 344 F.3d 720, 728 (7th Cir. 2003). If Campbell could establish a prima facie case, the burden of production would shift to Cummins to articulate a legitimate, non-discriminatory reason for its employment action. If Cummins met its burden of production, the burden would shift back to Campbell to present evidence tending to show that the reason offered by Cummins is merely a pretext for unlawful retaliation. Id. If Campbell produced evidence of pretext, a jury could infer retaliation.
In her Title VII retaliation claim, Campbell refers to the chain of events that occurred after she submitted her ICRC/EEOC charge. These events include the installation of a camera in her workstation, her transfer to another department, and Cummins' requests that she submit a blue form, as well as her ultimate discharge. The court considers Cummins' requests that she submit a blue form as part of her claim for FMLA retaliation.
A. Camera Installation and Campbell's Transfer
Campbell's Title VII prima facie case of retaliation with respect to the camera installation and her transfer fails at the third element. Campbell has failed to present evidence that could permit a fact finder to conclude that these occurrences were adverse employment actions.
The Seventh Circuit has identified three categories of cases that satisfy Title VII's adverse employment action requirement. Herrnreiter v. Chicago Housing Auth., 315 F.3d 742, 744-45 (7th Cir. 2002). First, there are cases in which the employee's compensation, fringe benefits, or other financial terms of employment are diminished, including, of course, as the limiting case, termination of employment.
Second, there are cases in which a nominally lateral transfer with no change in financial terms significantly reduces the employee's career prospects by preventing her from using the skills in which she is trained and experienced, so that the skills are likely to atrophy and her career is likely to be stunted. "These cases differ from those in the first category only in involving a future rather than present harm; the harm nevertheless is financial. They are to be distinguished from cases involving a purely lateral transfer, that is, a transfer that does not involve a demotion in form or substance. . . . [Such a transfer] cannot rise to the level of a materially adverse employment action. A transfer involving no reduction in pay and no more than a minor change in working conditions will not do, either." Id. at 744, quoting Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996).
There are variants of category 2 where the employee's job is changed in a way that injures his career just as in the cases in that category, except that there is no transfer. Herrnreiter, 315 F.3d at 744.
Third, there are cases in which the employee is not moved to a different job or the skill requirements of her present job altered, "but the conditions in which she works are changed in a way that subjects her to a humiliating, degrading, unsafe, unhealthful, or otherwise significantly negative alteration in her workplace environment — an alteration that can fairly be characterized as objectively creating a hardship, the classic case being that of the employee whose desk is moved into a closet." Id. at 744.
Campbell's transfer falls on the benign side of the second category of cases. The undisputed evidence shows that the transfer did not create a present financial harm; her pay and benefits remained the same. Campbell failed to produce evidence of any future harm resulting from her transfer. There is no evidence that the transfer would have prevented her from using the skills in which she was trained and experienced. As a Fabrication Materials Handler, she unloaded trucks that delivered materials to Cummins. In the Paint and Tag Department, she would have painted engines. There is no evidence that the transfer involved a demotion in form or substance.
Cummins claims that Campbell was transferred to the Paint and Tag Department in April 2002 because Campbell's team was overstaffed and Campbell had the least seniority. Campbell Dep. at 73.
The camera installation, which falls under the third category of cases, also does not qualify as an adverse employment action. Campbell presents no evidence that the installation was humiliating, degrading, or otherwise a significantly negative alteration in her workplace environment, or that it created a hardship. Thus, Campbell cannot make out a prima facie case of retaliation with respect to her transfer or the installation of a camera in her workstation.
B. Campbell's Discharge
For purposes of summary judgment, Cummins also does not dispute the subsequent incidents at Campbell's workplace: other employees calling her a "snitch" or refusing to talk to her, the dead rat in the trash can at her workplace, and the problem with the hydraulic line on her reach truck. No evidence links these events to retaliation by Cummins management, however. Campbell also claims that Hill, her supervisor, began scrutinizing her time records more closely after her complaints about Jordan. Pl. Br. at 17. Even assuming Campbell has personal knowledge of Hill's scrutiny of time records, she has not shown any evidence that this alleged conduct harmed her in any way.
Campbell's Title VII prima facie case of retaliation with respect to her discharge fails as well, but at the second and fourth elements. With regard to the second element, Campbell has failed to present evidence that could permit a fact finder to conclude that she was meeting Cummins' legitimate expectations. Cummins claims that it discharged Campbell mainly because of excessive and unexcused absenteeism. Cummins' offered reason is supported by undisputed evidence in the record.
From April 15, 2002 until her discharge in July 2002, Campbell did not show up to work at Cummins. On April 25th and 29th, Cummins notified Campbell that she had excessive absences under Cummins' attendance policy. On May 6, 2002, Cummins sent a letter to Campbell telling her that, as of April 29, 2002, she had incurred at least five excessive occurrences under Cummins' absence policy. The May 6th letter stated: "Any absences covered by an approved leave of absence or weekly benefits will be removed from your record, if excused," and warned her that she would be subject to discharge if such verification was not received within 14 days. In response to the May 6th letter, Campbell provided her union steward with the May 1, 2002 letter from Freeman at Solutions. Campbell did not submit any other documentation with respect to her absences. Cummins had ample reason to fire her as long as it honestly believed that her absences were unexcused. Prolonged and unexcused absence is a legitimate and legal explanation for her discharge.
Campbell has failed to produce evidence tending to show that Cummins' reasons for discharging her are pretextual. To meet her burden on pretext, she must present evidence from which a rational fact finder could infer that Cummins' stated reason for her discharge was not truthful, had no basis in fact, did not actually motivate Cummins' decision, or was insufficient to motivate the decision. Lesch v. Crown Cork Seal Co., 282 F.3d 467, 473 (7th Cir. 2002); Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1124 (7th Cir. 1994). The undisputed facts show ample basis for discharge and no reason to question the honesty of the stated reason.
With regard to the fourth element of the prima facie case, Campbell provides no evidence that she was treated worse than a similarly situated employee who did not complain of harassment or file a charge of discrimination with the ICRC or EEOC. Campbell contends that she was discharged because she did not submit a completed blue form stating that she was unable to work for medical reasons. Pl. Br. 36 at 31. She compares herself to two individuals who took leave without submitting blue forms but who were not discharged for that reason. Gene Melcher, a male employee, failed to file blue forms while on medical leave, but he was not discharged. Wallace Aff. ¶ 8. Teresa Jaynes, a female employee who went on leave from September 2001 to October 2003, did not fill out blue forms for the majority of her absence. Jaynes was discharged around October 2003 because she had reached the end of her benefits under Cummins' disability policy, and not because she failed to file blue forms. Jaynes Aff. ¶¶ 6, 12.
Assuming that this evidence in the Jaynes and Wallace affidavits would be admissible at trial, a jury still could not find that Melcher or Jaynes was similarly situated to Campbell. Cummins contends that Campbell was discharged for excessive and unexcused absences. This reason is not equivalent to discharge for failure to submit a blue form. First, under Cummins' absence policy, absences can be excused for various reasons that may not require a blue form. Second, other types of certification may substitute for a blue form in circumstances where an employee needs absences from work to be excused. Campbell has not provided evidence from which a reasonable fact finder could conclude that her absences were equivalent to Melcher's or Jaynes's absences under Cummins' policy. 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"). In sum, Campbell has failed to provide evidence sufficient to support a prima facie case of retaliation under Title VII.
III. FMLA Claims
The Family and Medical Leave Act of 1993 creates two types of claims: interference claims, in which an employer denies or otherwise interferes with an employee's substantive rights under the FMLA, and retaliation claims, in which an employer discriminates against an employee because she engaged in activity protected by the FMLA. See Strickland v. Water Works and Sewer Board of City of Birmingham, 239 F.3d 1199, 1206 (11th Cir. 2001). Campbell claims that Cummins violated her substantive rights under the FMLA and then retaliated against her when she attempted to assert her rights under the FMLA. The court considers each claim in turn.
A. Interference With Substantive FMLA Rights
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 the position of such employee." 29 U.S.C. § 2612 (a)(1)(D). Campbell has provided no evidence that would allow a reasonable trier of fact to find that she had a serious health condition that made her unable to perform the functions of her position.
The FMLA defines a "serious health condition" to mean "an illness, injury, impairment, or physical or mental condition that involves — (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider." 29 U.S.C. § 2611(11). Campbell argues that her depression was a serious health condition because she received continuing treatment from a health care provider for the condition. She was treated by Ileana Freeman of Solutions for depression, and Susan Kell, MSN, felt that Campbell had symptoms of depression and prescribed an antidepressant. Solutions also referred Campbell to Psychiatric Associates for a psychiatric evaluation.
The Department of Labor has issued regulations that define the statutory term of continuing treatment by a health care provider:
(a)(2) Continuing treatment by a health care provider. A serious health condition involving continuing treatment by a health care provider includes any one or more of the following:
(i) A period of incapacity ( i.e., inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefor, or recovery therefrom) of more than three consecutive calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:
(A) Treatment two or more times by a health care provider, by a nurse or physician's assistant under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or
(B) Treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider.
(ii) Any period of incapacity due to pregnancy, or for prenatal care.
(iii) Any period of incapacity or treatment for such incapacity due to a chronic serious health condition. A chronic serious health condition is one which:
(A) Requires periodic visits for treatment by a health care provider, or by a nurse or physician's assistant under direct supervision of a health care provider;
(B) Continues over an extended period of time (including recurring episodes of a single underlying condition); and
(C) May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).
(iv) A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective. The employee or family member must be under the continuing supervision of, but need not be receiving active treatment by, a health care provider. Examples include Alzheimer's, a severe stroke, or the terminal stages of a disease.
(v) Any period of absence to receive multiple treatments (including any period of recovery therefrom) by a health care provider or by a provider of health care services under orders of, or on referral by, a health care provider, either for restorative surgery after an accident or other injury, or for a condition that would likely result in a period of incapacity of more than three consecutive calendar days in the absence of medical intervention or treatment, such as cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy), kidney disease (dialysis).
(b) Treatment for purposes of paragraph (a) of this section includes (but is not limited to) examinations to determine if a serious health condition exists and evaluations of the condition. . . .29 C.F.R. § 825.114.
The evidence presented by Campbell would not allow a reasonable fact finder to conclude that she met the requirements of a continuing course of treatment by a health care provider. To be a "serious health condition," a condition involving continuing treatment by a health care provider must include a period of incapacity ( i.e., inability to work), § 825.114(a)(2)(i)-(iv), or a period of absence to receive multiple treatments either for restorative surgery or for a condition that would likely result in a period of incapacity in the absence of medical intervention or treatment, such as chemotherapy for cancer, physical therapy for severe arthritis, or dialysis for kidney disease. § 825.114(a)(2)(v).
A reasonable fact finder could not conclude from the record evidence that Campbell was incapacitated by her depression or that her treatments for depression with Solutions, including her referral for evaluation to Psychiatric Associates, were necessary to prevent a period of incapacity. Even in this litigation, Campbell has provided no evidence that any health care provider found that she required leave from work for her depression. In fact, Kell refused to sign the blue form for Campbell. Although Kell felt that Campbell had symptoms of depression and prescribed an antidepressant, she did not have the impression that Campbell could not go to work. Def. Exs. O, U. There is also no evidence that Psychiatric Associates, after evaluating Campbell, would have recommended leave from work.
Finally, even if Campbell's depression somehow could qualify as a "serious health condition" under the FMLA, she still has not come forward with evidence that it made her unable to work every day after April 15, 2002 until she was discharged. Cummins gave her ample opportunity to show that she was unable to work; she did not do so, and she still has not done so. The court assumes for purposes of argument that Cummins would have excused or did excuse the days when Campbell actually sought and received treatment for her depression. But Campbell never returned to work at all after April 15, 2002. The undisputed facts show that she was not entitled to FMLA leave for all those absences.
Campbell argues that the "blue form" Cummins uses for FMLA leave requests and other purposes violates the FMLA because it is more restrictive than the FMLA and because it requires more information than the FMLA allows an employer to require. The blue form includes a release authorizing release of all medical information to the employer. The FMLA allows an employer to ask for medical verification of a serious health condition. 29 U.S.C. § 2613(a) (b). But the FMLA regulations impose limits on the employer's ability to seek additional information, especially directly from health care providers, at least where the absence is not governed by worker's compensation laws. 29 C.F.R. §§ 825.306 825.307. Also, Cummins' blue form requires the signature of an "attending physician," which is a narrower category than the FMLA's "health care provider." See 29 U.S.C. § 2611(6); 29 C.F.R. § 825.118. These potential discrepancies between the requirements of Cummins' blue form and the FMLA do not affect the court's decision in this case. The undisputed facts show that Campbell did not have a serious health condition that made her unable to work. She was not entitled to FMLA leave, apart from perhaps a couple of days when she actually was seeking treatment for her depression.
B. FMLA Retaliation
Campbell's final federal claim is that Cummins fired her in retaliation for exercising her statutory right to medical leave pursuant to the FMLA. The FMLA 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 reasonable trier of fact could not find that Cummins retaliated against Campbell for trying to exercise FMLA rights.
The Seventh Circuit evaluates a retaliation claim under the FMLA the same way it evaluates a retaliation claim under Title VII. Buie v. Quad/Graphics, Inc., 366 F.3d 496, 503 (7th Cir. 2004). To make out a prima facie case for FMLA retaliation, then, Campbell must satisfy the elements of the indirect method of proof: that she engaged in statutorily protected activity, was performing her job according to her employer's legitimate expectations, suffered a materially adverse employment action, and was treated worse than a similarly situated employee who did not engage in statutorily protected activity. Stone v. City of Indianapolis Public Utilities Division, 281 F.3d 640, 642 (7th Cir. 2002).
Campbell's prima facie case fails at the first element: she did not engage in statutorily protected activity. There is no evidence that Campbell had a serious health condition as defined by the FMLA, and there is no evidence that Cummins had notice of any FMLA-qualifying condition.
The FMLA requires that an employee provide notice to an employer that the employee has a serious health condition. 29 C.F.R. §§ 825.302 and 825.303. Where the need for leave is not foreseeable at least 30 days in advance, notice must be given "as soon as practicable under the facts and circumstances of the particular case." 29 C.F.R. § 825.303(a). The notice requirement does not require the employee to mention the FMLA or demand its benefits, however. 29 C.F.R. § 825.303(b). The employee's duty is "to place the employer on notice of a probable basis for FMLA leave. . . . He just has to give the employer enough information to establish probable cause, as it were, to believe that he is entitled to FMLA leave." Aubuchon v. Knauf Fiberglass, GmbH, 359 F.3d 950, 953 (7th Cir. 2004). Such notice is required and sufficient to trigger the employer's duties under the FMLA. Id. at 953.
To show that Cummins had notice of an FMLA-qualifying condition, Campbell relies on the May 2002 letter from Freeman to Cummins about her depression. Pl. Br. at 23. Campbell's argument is unconvincing. As discussed above, Campbell has not presented evidence that would permit a reasonable fact finder to conclude that she was actually entitled to FMLA leave (with the possible exception of a couple of days for treatment of her depression). Also, a reasonable fact finder could not conclude that the Freeman letter was sufficient notice that she suffered from a serious health condition and required leave from work. Campbell never submitted any FMLA paperwork to Cummins.
The fact that Campbell's husband picked up FMLA forms and that Campbell asked union steward Stultz if she could take FMLA leave to excuse her absences are not sufficient notice either. The papers were never turned in to Cummins.
Campbell likens her case to Byrne v. Avon Products, Inc., 328 F.3d 379 (7th Cir. 2003). Byrne was fired for starting to read and sleep on the job after having been a model employee. The Seventh Circuit reasoned that if Byrne's sudden change in behavior was itself notice of his mental problems, or if Byrne had been unable to provide oral or written FMLA notice because of his mental problems, his employer should have classified his final two weeks of employment as FMLA medical leave rather than as misconduct. Id. at 382.
Neither of the extraordinary circumstances that may have applied to Byrne — a sudden change in behavior or an inability to provide notice because of a serious medical condition — applies to Campbell. Campbell obtained the proper FMLA forms, but she never submitted them to Cummins. There is no evidence that she was unable to submit the forms due to a shortage or time, her medical condition, or any other reason. Nor is there evidence that Campbell submitted any type of documentation from a health care provider that her depression would keep her from working, other than the days that she had appointments for treatment. See 29 C.F.R. § 825.305(a) (an employer who wishes to question the medical necessity of an employee's leave may require certification issued by a health care provider). The undisputed evidence shows that Cummins had no notice of any serious health condition as that term is used in the FMLA. Campbell has not met her burden to provide evidence tending to show that Cummins retaliated against her for asserting FMLA rights.
Campbell's prima facie case of retaliation also fails at the fourth element. She provides no evidence tending to show that she was treated worse than a similarly situated employee.
IV. Intentional Infliction of Emotional Distress
Campbell also has brought a state claim for intentional infliction of emotional distress — not against Jordan, but against Cummins. Because Campbell's federal question claims are being dismissed, the court must consider whether to continue to exercise supplemental jurisdiction over the state law claim against Cummins under 28 U.S.C. § 1367(a).
As a general rule, when all federal law claims are dismissed before trial, such as on summary judgment, the supplemental claims should be left to the state courts. United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966); Wright v. Associated Insurance Cos., 29 F.3d 1244, 1252 (7th Cir. 1994); see also 28 U.S.C. § 1367(c)(3). There are recognized exceptions to this rule. The district court may exercise its discretion to retain jurisdiction over the state claim to serve purposes of judicial economy, convenience, fairness, or comity. See Korzen v. Local Union 705, International B'hood of Teamsters, 75 F.3d 285, 289 (7th Cir. 1996) (affirming dismissal of union employee's state law claim against union); Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, 1182 (7th Cir. 1993).
These factors point to retaining jurisdiction over the state law claim in situations where the state statute of limitations has run on the pendent claim, where the federal judicial investment in the supplemental claim is substantial, or where it is otherwise clear how the supplemental claim should be decided. Wright, 29 F.3d at 1251-52. If the supplemental claim clearly would fail on the merits, the federal court may "put the plaintiff out of his misery then and there" rather than burdening the state courts with a meritless case. Van Harken v. City of Chicago, 103 F.3d 1346, 1354 (7th Cir. 1997).
Campbell's supplemental claim clearly fails on the merits. Indiana courts impose liability for the tort of intentional infliction of emotional distress on an individual who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another. Cullison v. Medley, 570 N.E.2d 27, 31 (Ind. 1991). Campbell argues that Cummins intentionally inflicted emotional distress upon her from the moment when she first reported Jordan's sexual harassment. She highlights several incidents to support her claim, including: supervisor Hill's response to her report of the September 7, 2001 incident with Jordan, in which Hill gave Campbell his pager number and told Campbell to page him if it happened again; Drybread's response to her report of the September 10th incident with Jordan, in which Drybread remarked "Sounds to me he's horned up;" the incident where the rat was found in the trash can in her workplace; the problem with her reach truck's hydraulic line and the possibility of sabotage; her transfer to another department; Cummins' requests for a blue form before she could take FMLA leave; and her discharge.
As the above discussion of Campbell's federal claims makes clear, the evidence would not permit a reasonable fact finder to conclude that these incidents, even taken together, indicate that Cummins intended to inflict emotional harm on Campbell. See Cullison, 570 N.E.2d at 31 ("It is the intent to harm one emotionally that constitutes the basis for the tort of intentional infliction of emotional distress."). Nor has Campbell presented evidence of conduct by Cummins or its management "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency," as is required for liability to be found. Gable v. Curtis, 673 N.E.2d 805, 810 (Ind.App. 1996). Accordingly, the court grants defendant's motion for summary judgment on Campbell's state law claim of intentional infliction of emotional distress.
Conclusion
For the foregoing reasons, defendant's motion for summary judgment is granted in its entirety. Final judgment shall be entered dismissing all claims with prejudice.
So ordered.