Opinion
Cause No. 3:02 CV 0835 AS.
December 13, 2004
MEMORANDUM AND ORDER
This cause is before the Court on the Defendant's Motion for Summary Judgment filed on March 2, 2004; the Defendant's Motion to Strike Portions of Plaintiff's Deposition Testimony; and the Defendant's Motion to Strike Portions of Plaintiff's Affidavit filed on April 19, 2004. This case arises out of Plaintiff's claim that her employer, Ancilla Domini Sisters, Inc. ("Ancilla"), discriminated against her because of her gender in violation of Title VII of the Civil Rights Act of 1964, as amended. She has also included a claim under State law for intentional infliction of emotional distress. Ancilla asserts that the Plaintiff has provided no admissible evidence to support her claim for discrimination, and therefore it must be dismissed. Oral argument was held in open court on May 13, 2004, and all appropriate briefs have been filed. This case has generated a considerable stack of paperwork, but all has been reviewed, and the Court now rules as follows.
I. JURISDICTION
The Plaintiff, Kelly Cordell, initially filed this suit in the Marshall County, Indiana Superior Court, but Defendant properly removed it to this Court pursuant to 28 U.S.C. § 1441. Jurisdiction is premised on 18 U.S.C. § 1331, federal question jurisdiction.
II. MOTION TO STRIKE
Before the Court can address the Defendant's Motion for Summary Judgment, it must first rule on the Motion to Strike Portions of the Plaintiff's Deposition Testimony and the the Motion to Strike Portions of her Affidavit. To create a triable issue of fact, the Plaintiff cites to statements in her deposition and affidavit which the Defendant asserts are not admissible under Federal Rule of Civil Procedure 56. Rule 56 (c) states that judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law."
Rule 56(e) provides additional information on affidavits, stating, "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." It is well established in this circuit that conclusory allegations and self-serving affidavits, if not supported by the record, will not defeat a motion for summary judgment. See, Patterson v. Chicago Ass'n for Retarded Citizens, 150 F.3d 719, 724 (7th Cir. 1998). Although the Plaintiff is correct that the non-moving party's own affidavit or deposition may be sufficient evidence to defeat summary judgment, the testimony in the affidavit and deposition must comply with the requirements of Rule 56.
The Defendant's challenges to Plaintiff's Affidavit and Deposition fall into three broad categories: 1) lack of foundation and personal knowledge; 2) conclusory allegations and legal conclusions; and 3) hearsay evidence that would not be admissible at trial. The Court agrees that many of the challenged statements would not be admissible at trial and are therefore inadmissible under Rule 56. The Court will group the challenged statements according to category, and address them in the order listed above.
A. Lack of foundation or personal knowledge
First, the Defendant claims that many of the "facts" that Plaintiff relies on to raise a triable issue of fact and survive summary judgment lack a proper foundation and are not based on personal knowledge. Beginning with Plaintiff's Affidavit, the Defendant objects to her statement that "Terry Green never attempted to start my three month training period." Def.'s Mot. to Strike Aff. at 2, P's Aff. ¶ 10. The Defendant points out that Plaintiff has no personal knowledge as to what Green attempted, and the Court agrees. Def.'s Mot. to Strike Aff. at 2. However, Cordell says that what she meant was that during the three week period referred to in paragraph 10, no attempt was made to train her, by Green or anybody else. Pl.'s Resp. to Mot. to Strike at p. 4. Plaintiff and Defendant agree that Green did not train Cordell because he became seriously ill and took early retirement. Def.'s Reply Br. at p. 7; Cordell Dep. pp. 131-32. Therefore, the statement is allowed as corrected, that Green did not train the Plaintiff on the electrical, HVAC and telephone system as promised.
The Defendant also objects to a statement Cordell made in her Deposition about Terry Green, that he was paid $1.50 more per hour for doing the same job that Cordell was doing, maintaining the phone system. Def.'s Obj. to Pl.'s Dep., p. 3; Pl.'s Stmt of Facts at ¶ 27. The conversation discussed in paragraph 27 took place between Cordell and Brian Dixon, one of the Defendants. Cordell asked "if she would receive the $1.50 more per hour for doing the phone system, which Cordell's predecessor, Terry Green (a male), received. Dixon replied to Cordell, "I'll check on that.'" Cordell claims that this statement is an admission and proves that Terry Green was paid $1.50 per hour more for doing the phone system. All this statement actually proves is that Cordell thought Green got paid more, and that Dixon said he would look into it. This statement is admissible, for what it's worth, as a statement from a party opponent, but it will be given its obvious meaning.
Plaintiff also makes the statement, and Defendant objects, that she should have received increases in her pay rate for the additional job duties that she was required to perform. The Defendant claims that this statement is not supported by a showing that Cordell has personal knowledge as to what she should have or was required to receive from her employer, and that it is mere speculation. Cordell responds with her testimony that Terry Green was paid more. The Court has already determined that this evidence is inadmissible hearsay. Therefore, her claim that she was denied pay increases when she took on additional job responsibilities must be struck because it is not supported by admissible evidence. The Defendant's Motion to Strike is GRANTED as to this statement.
The Defendant also objects to Cordell's statement that Dixon and Emmons "changed her shift for the reason that the Sisters wanted people at Ancilla in the evening hours so as to save on overtime." Id., P.'s Aff. ¶ 13. The Defendant asserts that Cordell does not have personal knowledge of what the Sisters wanted. Cordell points out that the statement is ambiguous, and could be interpreted to mean that Dixon and Emmons told her that this was the reason for the change, and interpreted in that way, it is admissible. This interpretation is supported by her deposition testimony on page 219-20. The Court will accept the statement interpreted in this manner.
The Defendant also challenges Cordell's statement that she told Dixon and Emmons "of another employee, Russell Pumford, who wanted to work that shift," again for lack of personal knowledge. Id., Pl.'s Aff. ¶ 14. But, Cordell does not claim that the statement proves that Pumford wanted to work the shift, but rather to show that she made the statement to Dixon and Emmons. In response, she claims that Dixon and Emmons told her that Pumford does not work well unsupervised. These statements are admissible as her recollection of a conversation with party opponents Dixon and Emmons, the two employees that she claims discriminated against her.
The Defendant challenges Cordell's statement that a male employee was sent to boiler school, claiming that it is not supported by a showing of personal knowledge. Id., Pl.'s Aff. ¶ 22. Cordell claims that she had personal knowledge that a male employee was sent to boiler training school, but does not say how she knew. In addition, Cordell states in her Deposition that it was Frank Pele, a Tech II, that was sent to boiler school. Cordell Dep. at p. 148. The Court agrees that these unsupported statements cannot be used as evidence to establish her claims. Examples of admissible evidence would be employment records, answers to interrogatories, or statements from the Defendants. The Plaintiff's unsupported statements are insufficient as a matter of law. Therefore, the Motion to Strike will be GRANTED as to this statement also.
Cordell made a similar claim in her Deposition, stating that "Ancilla has sent male employees from its maintenance department to school for certification." The Defendant challenges this statement as lacking any showing that Plaintiff had personal knowledge about other, unnamed male employees, who were given additional training. Assertions such as these would not be difficult to support using the Defendant's employment records, or even a simple interrogatory, but the Court agrees with the Defendant that the Plaintiff's bare assertion, without more, is not admissible evidence. The Defendant's Motion to Strike is GRANTED as to this statement as well.
The Defendant also objects to Cordell's Deposition testimony that during the time her shift was changed, she was replaced by a male named Jeff Bunch. Def.'s Mot. to Strike Portions of Pl's Dep. Offered in Supp. at 3, Cordell Dep. at p. 105, 123, and 219. The testimony is on page 104, where Cordell testified that at a meeting on August 23 with Brian Dixon and Dennis Emmons, they told her that they had three great candidates for maintenance positions, but could only hire two, a Tech I and a Tech II. Cordell Dep. at p. 104. Cordell claims that they told her "they wanted to meet with me first to see what my reaction was." Id. At this same meeting, Cordell was informed that she was being reassigned to the evening shift, and transferred to the Catherine Kasper Home. Cordell testified in her deposition that the person hired to fill the Tech I position was Jeff Bunch, and that Frank Pele was hired as the Tech II. Cordell Dep. at p. 105. Cordell does not say that Dixon and Emmons told her they had hired Bunch and Pele, or how she knew that Bunch and Pele were hired after she was transferred. However, she does state in her Memorandum in Opposition to Defendant's Motion to Strike Portions of Plaintiff's Deposition Testimony that her supervisors told her that these two individuals were hired to fill the Tech I and Tech II position. Mem. in Opp. at p. 6. The Court will let this testimony in. The fact that it is unsupported goes to the weight of the testimony.
B. Conclusory allegations and legal conclusions
The Defendant has objected to a number of paragraphs in Cordell's Statement of Material Facts, as supported by her Deposition testimony, which set forth her feelings or opinions as to what was happening in the workplace. The Defendant objects to paragraph 7, essentially a restatement of her Complaint, because it has legal conclusions and opinions, but does not state a fact. The Defendant objects to paragraphs 16 and 43 for the same reason. The Defendant also objects to paragraph 24 in the Plaintiff's EEOC Affidavit, in which she says that she feels she is being retaliated against.
On a motion for summary judgment, the local rules require any party opposing summary judgment to file affidavits or other documentary material controverting the movant's position, together with an answer brief and a "Statement of Genuine Issues" setting forth, with appropriate citations to discovery responses, affidavits, depositions, or other admissible evidence, all material facts as to which it contends there exists a genuine issue necessary to be litigated. L.R. 56.1. The legal theories of the party opposing summary judgment, in this case, the claims in Cordell's Complaint that she has been subjected to illegal discrimination and retaliation, are not issues of fact, but the conclusions of law that she hopes the trier of fact will draw from the evidence presented.
These statements are not totally inappropriate for a Statement of Genuine Issues in this case, however, because a prima facia case of sexual harassment requires that the conduct or environment be both objectively and subjectively offensive. See, Cerros v. Steel Technologies, Inc., 288 F.3d 1040, 1045 (7th Cir. 2002). Therefore, the Court will let these statements in for the limited purpose of supporting the Plaintiff's claims that she felt, subjectively, that she was being discriminated against because of her gender, and retaliated against because she complained of sexual harassment. The Defendant's Motion to Strike is DENIED as to these statements.
A second category of statements that the Defendant asks the Court to strike involve Cordell's opinion that her supervisors wanted to get rid of her. These statements include EEOC Affidavit paragraph 11, that she was afraid she was going to be replaced: EEOC Affidavit paragraph 15, that Brian Dixon and Pete Emmons were trying to force her to quit her job so they could hire the other male candidate for her position; EEOC Affidavit paragraph 17, "I feel that Brian Dixon is going to terminate me when I complete the painting at the CKLC"; EEOC Affidavit paragraph 20, "I feel Brian Dixon and Dennis . . . are changing my job duties so I will mess up and they can fire me"; EEOC Affidavit paragraph 23, "I feel Brain Dixon asks me to do work without a work order so that he can write me up for not following procedure".
In addition, the Defendant objects to similar statements in the Plaintiff's Statement of Material Facts, which is supported only by her Deposition testimony. For example, in paragraph 31, Cordell states "it was obvious that she was being asked to quit"; in paragraph 36, that Dixon was attempting to force her to resign; in paragraph 52, that she "believed that her supervisors assigned her the painting duty in an effort to get Cordell to resign her employment"; in paragraph 53, that "Cordell was still expected to perform all her regular job duties", and that she "believed that Brian Dixon intended to terminate her when she completed the painting."
The Defendant points out that Cordell lacked personal knowledge as to what Brian Dixon and Pete Emmons wanted, as they never, in fact, asked her to quit. The Court agrees that these statements cannot be used to show what Brian Dixon and Pete Emmons actually intended, as they did not make any statements of their intent, and therefore, Cordell lacked personal knowledge. However, she claims that the statements are intended to show what she felt at the time. She asserts that she formed opinions based on her supervisors' actions and statements, reading between the lines, and her opinion was that they wanted her to quit so they could hire someone else. In particular, she was concerned about the conversation in which Dixon and Emmons stated that they had three excellent candidates, but only two positions, and that they were waiting to see what she was going to do after they changed her hours and job assignment.
Rule 701 of the Federal Rules of Evidence states that a witness who is not testifying as an expert is limited to testimony in the form of opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. This testimony is rationally based on the perception of the witness. Cordell observed Dixon's and Emmons' demeanor, listened to their statements, and concluded that they wanted her to quit so they could hire someone else. Someone else might reach a different conclusion, but she is entitled to testify as to her opinion. The Defendant's Motion to Strike is DENIED as to these paragraphs and statements.
C. Hearsay
Federal Rule of Evidence Rule 802 states, "Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress." Rule 801 defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed.R. of Evidence, 801(c). However, admissions of a party opponent are, by definition, not hearsay. Id. at 801(d)(2).
One of the statements that the Defendant challenges as hearsay is, "additionally, a co-employee of Cordell, Craig Tillman, reported to Dixon that Nettrouer had an obsession with Cordell, and that Nettrouer was infatuated with Cordell". The Court agrees. The declarant is Craig Tillman; his statement was made to Dixon; Tillman is not available for cross examination; this is classic hearsay. The Defendant's Motion to Strike as to this statement is GRANTED.
The Defendant also challenges statements in Cordell's Deposition that "there were other male maintenance employees that wanted to work" the new shift, and that "Craig Tillman would agree to work that shift also," as hearsay, and lacking a foundation establishing personal knowledge. Id., Cordell Dep. at p. 120-21. A careful reading of her testimony reveals that Cordell is discussing a meeting that took place about a week after Dixon and Emmons informed her of the shift change on August 23, 2001. The first meeting appears to have been private, "in their office". Id. at p. 121. The second meeting Cordell describes as a "big meeting" and claims that someone stated that Craig Tillman didn't mind working that shift, but he was never asked. Id. at 120. Pumford was also mentioned at the meeting. Id. at 121. Exactly who was at the second meeting is unclear.
These statements by the plaintiff are clearly hearsay. Without any evidence in the record as to who made these statements, the Court cannot determine if they fall under a hearsay exception. Therefore, the Defendant's Motion to Strike is GRANTED as to the statements that Pumford and Tillman were willing to work the evening shift.
The Defendant also challenges paragraph 73 in Cordell's Statement of Material Facts, which says, "On several occasions, Sister Pat has filed reports stating that Cordell is not certified to perform her job duties related to the phone system and water testing." Cordell's Statement of Material Facts is different from her Deposition testimony on this statement. On page 201 of her Deposition, Cordell states, "Yes, the water testing that I'm not certified, phone system. On several occasions Sister Pat and I had reported it, said I wasn't qualified." The testimony indicates that Cordell felt she was being discriminated against because she was required to perform these two jobs without the proper certification, and that she and Sister Pat, together, had reported it to someone on several occasions. As presented in her Statement of Material Facts, the Plaintiff's testimony is hearsay. As presented in her Deposition testimony, it is not. Therefore, the statement is admitted as stated in Cordell's Deposition Testimony. The statement in paragraph 73 of Cordell's Statement of Material Facts is STRICKEN.
In summary, the Defendant's Motions to Strike Portions of the Plaintiff's Deposition Testimony and Affidavit are GRANTED in part, and DENIED in part, as discussed above.
III. RELEVANT FACTS
In ruling on the Defendant's motion for summary judgment, the Court draws it's factual statement from the Plaintiff's version of the facts, after removing the inadmissible evidence stricken above. The factual statement also includes uncontested facts submitted by the Defendant.
The Plaintiff, Kelly Cordell ("Cordell"), has been employed full time with the Defendant, Ancilla, since 1993. Pl.'s Mem. in Opp. at 1. Ancilla is a religious, not-for-profit corporation with a facility in Donaldson, Indiana, where Cordell worked. Def.'s Stmt. of Mat. Facts at 1. She worked in a variety of positions, including as a dietary aide in food services, as a housekeeper in environmental services, and beginning in May, 2000, in maintenance, as a Tech I. Id. at 1-2. Her immediate supervisor in maintenance was Brian Dixon; over him was Dennis Emmons, the Director of Ministry Services. Id.
On September 28, 2000, Cordell submitted a verbal complaint to Brian Dixon, that a co-employee, Charles Nettrouer, was harassing her at work. Id.; Pl.'s Mem. in Opp. at 1. Cordell says that the harassment began in May, 2000, when Nettrouer first engaged in inappropriate sexual behavior, but that she did not report the harassment until Nettrouer followed her home from work. Pl.'s Stmt of Facts at 5. When Nettrouer handed Cordell a letter at work, she turned it over to Brian Dixon, and told him verbally about Nettrouer's harassment. Id. at 6. According to Cordell's Deposition testimony, Brian Dixon responded, "okay, thank you, I'll take care of it." Cordell Dep. at p. 56.
On the same day, Dixon reported the complaint to his supervisors, Dennis Emmons and Bob Overland, and a meeting was held that day with Cordell to discuss her allegations. Id. After asking Cordell some questions and listening to her allegations, Cordell was allowed to go home for the rest of the day with pay. Id. at 57-58. The Plaintiff's Statement of Material Facts says that "Cordell was very upset regarding the outcome of that second meeting." Pl.'s Stmt at 7. However, Cordell's Deposition testimony does not support this claim. Cordell Dep. at p. 58. In the context of why Cordell was sent home, she was asked, "You were quite upset, weren't you?", to which she responded, "yeah". Then, she was asked, "You don't have any complaint about them allowing you to go home and being paid for the day, do you?" to which Cordell responded, "No." These statements do not provide a basis for a claim that Cordell was upset regarding the outcome of the meeting, simply that she was upset.
Dixon, Emmons, and Overland met with Nettrouer and his wife to discuss the sexual harassment complaint against him. Pl.'s Stmt at ¶ 19. On October 19, 2000, a Corrective Action was issued to Nettrouer, informing him that he would receive a three day suspension without pay. Def.'s Stmt at ¶ 33. In addition, he was placed on probation for ninety days with a warning that further misconduct could result in termination; he was required to receive counseling regarding the Defendant's sexual harassment policy; and to receive counseling from the Defendant's employee assistance program. Id. He was also moved to a different building, the Catherine Kasper Home, where he would not come in contact with Cordell at work. Pl.'s Stmt at ¶ 21. Cordell says in her Deposition that the harassment ceased after she complained about Nettrouer, and that he did not bother her again. Def.'s Stmt of Facts at ¶ 28, citing Cordell Dep. at 64-65.
Cordell also met with Ivy McKinley, the Defendant's representative, who told her that she should report harassing behavior; that the Ministry Center would take steps to prevent harassment; and that she would not be retaliated against for reporting harassment. Def.'t Stmt at ¶ 24. The Defendant maintains a written Sexual Harassment Policy, and a Grievance Procedure Policy, contained in an Employee Handbook. Id. at ¶ 39-40. Cordell acknowledged in writing that she received a copy of the Handbook on January 22, 1998. Id. at ¶ 41.
In December, 2000, Cordell took a leave of absence under the Family Medical Leave Act to care for her child. Pl.'s Stmt of Facts at ¶ 23. When she returned in February, Cordell was assigned to work on the HVAC and the telephone system. Id. at ¶ 24. Cordell wanted to work on the phone system. Cordell Dep. at pp. 135-36. Dixon told Cordell that Terry Green would train her for a three month period. Pl.'s Stmt of Facts at ¶ 24. However, Green was seriously ill and had to leave before he had the opportunity to train her. Id. Cordell was given three months to learn to operate the system, but had to learn it on her own, which she was able to do. Id. Cordell asked to be sent to a school for training on the telephone system, but Dixon advised her that money was not budgeted for it. Pl.'s Aff. at ¶ 22. No one was ever sent for special training on the phone system. Def.'s Stmt of Facts at ¶ 84.
Cordell also asked Dixon if she would receive an additional $1.50 per hour for maintaining the phone system, to which Dixon responded, "I'll check on that." Pl.'s Stmt. at ¶ 27. Cordell believed that Terry Green received an extra $1.50 per hour for operating the phone system, but, as noted above, she has not provided admissible evidence to support this claim.
In her previous positions with the Defendant, Cordell frequently requested and was granted additional training. Cordell claims that Dixon told her when she transferred to maintenance that she would be able to go to schools and receive certification, and that each additional certification she received would result in an increase in pay of $1.00 per hour. Pl.'s Stmt. of Facts at ¶ 65. However, after transferring to maintenance, Cordell requested additional training, but was not granted any additional training. Id. at ¶ 12.
While working in maintenance, Cordell requested training on the phone system, and asked for training to learn more about water testing, which at one time was part of her job responsibilities. Pl.'s Aff. at ¶ 22. Cordell testified that she believed the additional training was important, and that she feared she could lose her job if she made a mistake because of lack of training. Id. at ¶ 21. During this same time period, Cordell believed that a newly hired Tech II, a male, was sent to boiler training school. Id. at ¶ 22. She also claims that her supervisor, Brian Dixon, attended the water treatment school. Id. The Defendant admits that Dixon attended the outside course for water training because he planned to assume those responsibilities, including state certification and compliance issues. Def.'s Stmt of Facts at ¶ 80.
On August 23, 2001, Dixon and Emmons advised Cordell that her work schedule would be changing. Pl.'s Stmt of Facts at ¶ 30. Cordell's hours would change from her current shift, 7:00 a.m. to 3:30 p.m., to a newly created shift from 11:30 to 8:00. Id. Only one person, Cordell, would be assigned to work this new shift. Id. Cordell informed Dixon and Emmons that the new shift would cause a hardship for her for two reasons: one, that she was enrolled in college for the fall and would have to quit; and two, that she had children in a daycare center that closed at 6:00. Id. at ¶ 31. The change in hours would also require Cordell's husband to quit school in order to care for the children in the evening until new childcare arrangements could be made. Id. at ¶ 50.
Cordell also objected to the reassignment because it would require her to work in the same building with Nettrouer. Id. at ¶ 33. Cordell informed Dixon and Emmons that another employee, Russell Pumford, wanted to work that shift, but they responded that "Pumford does not work well unsupervised." Pl.'s Aff. at ¶ 14.
During the meeting about Cordell's schedule change on August 23, 2001, Dixon and Emmons told Cordell that they had "three great candidates" for open positions in the maintenance department. Pl.'s Stmt of Facts at ¶ 35. They informed her that they could only hire two of the candidates, but that they wanted to meet with Cordell first and see what her reaction was to the new shift assignment. Id. Cordell concluded from this conversation that Dixon and Emmons wanted her to quit so they could hire all three candidates. Id.
Cordell reported her concern about the change in her hours to Bob Overland, Coordinator of Mission Integration, pursuant to Ancilla's grievance policy. Id. at ¶ 42. A meeting was held on September 14, 2001, between Cordell, Dixon, Emmons, and Overland regarding her grievance. Id. at ¶ 43. During this meeting, Cordell informed her supervisors that she believed the change in her schedule was in retaliation for filing a complaint about sexual harassment almost a year earlier. Id. She claims that Overland created a report of the meeting that he wanted her to sign, but she refused to sign it because it stated that the changes in her work hours were not due to sexual harassment, and were not in retaliation for filing a complaint. Id. Overland reworded the report several times, but Cordell still refused to sign it because she said it was not true. Id. at ¶¶ 45-46. Cordell was not allowed to take a copy of the report with her from the meeting. Id. at ¶ 46.
The next step in Ancilla's grievance procedure was to file a grievance with Karen Humphrey, Defendant's Human Resources Director, but Cordell claims that she had to have Overland's authorization before she could file the grievance. Id. at ¶ 49. Cordell claims that Overland prevented her from filing a grievance with Karen Humphrey until September 24, 2002. Id. at ¶ 49. She started working the new shift on September 17, 2001, which required both Cordell and her husband to drop their college classes, losing their tuition money for that semester. Id. at ¶ 50. In addition, Cordell had to find a new babysitter for her children. Id. at ¶ 56.
Humphrey responded to Cordell's complaint by letter on September 26, 2001. She advised Cordell that the change in her schedule would be reviewed, and that a temporary accommodation could be made regarding this schedule if Plaintiff felt she was being significantly harmed by it. Def.'s Stmt of Facts at ¶ 46. Cordell called and set up an appointment to see Humphrey, but she did not ask for an accommodation, as the schedule change had already occurred. Id.; Pl.'s Stmt of Facts at ¶ 49.
Karen Humphrey determined on October 12, 2003, that the Plaintiff should be returned to her original schedule. Pl.'s Stmt of Facts at ¶ 56; Def.'s Br. in Supp. at p. 18. She found that the decision to revise Cordell's work schedule was a legitimate and reasonable step to provide maintenance coverage during the late afternoon and evening hours because she was the most suitable and trustworthy person to maintain that schedule. Def.'s Stmt of Facts at ¶ 51 and 54. Russell Pumford was considered for the position, but Dixon and Emmons stated that he was not given the evening shift because he did not work well unsupervised. Id. at ¶ 50. However, Humphrey determined that Cordell would suffer "great hardship" because of the shift change, so after working about four weeks on the new shift, Cordell was returned to her original hours. Pl.'s Stmt of Facts at ¶ 57. During the time that she worked the later shift, Cordell received a fifty cents per hour pay increase. Id. at ¶ 49; Cordell Dep. at pp. 81-83.
When her shift was changed, Cordell was assigned to paint an empty wing of the Catherine Kasper Home that was being renovated. Id. at ¶ 51. Cordell was concerned because her shift overlapped that of Nettrouer, and he would be in the same building with her. Id. Most of the time, she would be working alone and unsupervised. Id.
The painting job turned out to be a big project. Eventually, Cordell was removed from the job, and it took a crew of six to seven men a year or more to complete the painting. Id. at ¶ 52. While she was painting the Catherine Kasper Home, Cordell carried a radio, and she sometimes got calls to maintain other things, for example, if there was a phone work order. Cordell Dep. at pp. 140-43. She felt she was expected to perform all her usual duties plus the additional responsibility of painting. Stmt. of Mat. Facts at ¶ 53. She was told at times that she was not painting fast enough, and that she could be replaced. Id. at ¶¶ 36 and 53.
During her employment with the Defendant, Cordell has consistently gotten good evaluations, and has never been the subject of a disciplinary or corrective action. Pl.'s Stmt of Facts at ¶ 29. She has never been demoted by the Defendant or received a reduction in pay. Cordell Dep. at pp. 108-111. Instead, she has asked for and received a promotion and advancement into the duties of Telecommunications Administrator and is also in charge of the security system. Id. Cordell claims, however, that she was expected to perform jobs without the proper training, which was stressful and caused her to fear for her job. After her return from FMLA leave, she experienced depression, sickness, stress, nervousness, loss of appetite, and embarrassment in the workplace. Pl.'s Stmt of Facts at ¶ 81. Part of the embarrassment was due to the fact that everyone at work knew about Cordell's complaint of sexual harassment against Nettrouer. Id.
Cordell filed a charge of discrimination with the EEOC on November 13, 2001, alleging harassment, discrimination, and retaliation based on the conduct of Dixon and Emmons. She received a right-to-sue letter and filed a Complaint in federal court alleging gender harassment and discrimination, and retaliation in violation of Title VII. She also included a state law claim for intentional infliction of emotional distress.
IV. STANDARD OF REVIEW
The standard a court employs in reviewing a motion for summary judgment is now well-established. Summary judgment is proper only if the record shows that there is no issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(C). In determining whether a genuine issue exists, the court must construe all facts and inferences in the light most favorable to the non-moving party, drawing all reasonable and justifiable inferences in favor of that party. Haugerud v. Amery School District, 259 F.3d 678 (7th Cir. 2001).
To survive summary judgment, the nonmoving party cannot rest on its pleadings, Waldridge v. American Hoechst Corp., 24 F.3d 918, 920-21 (7th Cir. 1994); Hughes v. Joliet Correctional Ctr., 931 F.2d 425, 428 (7th Cir. 1991), nor may that party rely upon conclusory allegations in affidavits. Cusson-Cobb v. O'Lessker, 953 F.2d 1079, 1081 (7th Cir. 1992). Summary judgment is not appropriate, in a discrimination case or otherwise, when there are contested issues of material fact. Id. (citations omitted).
On a motion for summary judgment, the Court must not weigh conflicting evidence, but rather determine whether the non-moving party has presented sufficient evidence for a reasonable factfinder to decide in her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Only if no reasonable jury could find for Cordell should the Defendants' Motion for Summary Judgment be granted. Hostetler v. Quality Dining, 218 F.3d 798, 806 (7th Cir. 2000) (citations omitted). Applying that standard, the Court now considers the present case.
V. ANALYSIS
Cordell alleges that the Defendant has injured her in three distinct ways: 1) she was harassed and discriminated against because of her gender in violation of Title VII; 2) the Defendant retaliated against her for filing a complaint of sexual harassment; and 3) the Defendant's conduct was so egregious as to amount to intentional infliction of emotional distress under Indiana law. Because these are separate and distinct legal theories, the Court will address them individually in the order presented in the Plaintiff's Complaint.
A. Sexual harassment and gender discrimination in violation of Title VII 1. Charles Nettrouer
The record clearly establishes that Charles Nettrouer sexually harassed Cordell from May of 2000 until September of 2000. However, the Defendant challenges using Nettrouer's conduct as a basis for Cordell's claims because his harassment ended more than a year before Cordell filed her EEOC Charge. Cordell admits that Nettrouer did not harass her after September of 2000, and the EEOC Charge was not filed until November 13, 2001, well past the 300 day period for filing a charge of discrimination under Title VII. Pl.'s Mem. in Opp., Dep. Ex. 6. Cordell's EEOC Charge mentions the harassment by Nettrouer, but she does not allege a continuing violation, so Nettrouer's conduct is outside of the 300 day period. The rule in the Seventh Circuit is that only conduct which occurred within the 300 days prior to the filing of the EEOC Charge may be included in the Charge. See, Reese v. Ice Cream Specialties, Inc., 347 F.3d 1007 (7th Cir. 2003). Therefore, Nettrouer's harassment is excluded from consideration in this case.
Even if Nettrouer's harassment had occurred within the period, the Defendant responded swiftly and appropriately to her charges. When Cordell filed the complaint about Nettrouer, her allegations were immediately investigated, and Nettrouer was disciplined. His discipline included a three suspension without pay, probation for ninety days, a termination warning for any further violations, and mandatory counseling. Nettrouer was a co-employee, and Cordell admits that Nettrouer did not harass her again. Therefore, even if Cordell filed a timely complaint with the EEOC for this harassment, the Defendant would be entitled to the affirmative defense outlined in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries v. Ellerth, 524 U.S. 742 (1998).
Cordell appears to concede this point in her Memorandum in Opposition on page 2, when she states that the basis of her EEOC Charge of Discrimination was discrimination and retaliation by her supervisors after she complained of the sexual harassment perpetrated by Nettrouer. Therefore, the Court concludes as a matter of law that the harassment by Nettrouer that occurred from May 2000 until September 2000 is outside the scope of this suit.
2. Gender Discrimination
Title VII prohibits employers from engaging in any actions that "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). "Thus, there are two primary issues to consider: first, was the purported difference in treatment prompted by the plaintiff's sex; and second, did the difference in treatment affect plaintiff's compensation, terms, conditions, or privileges of employment." Haugerud v. Amery School District, 259 F.3d 678 (7th Cir. 2001), citing, Sweeney v. West, 149 F.3d 550, 554 (7th Cir. 1998). "If there is enough evidence for a reasonable jury to conclude that the plaintiff's sex . . . prompted the disparate treatment (and that the treatment affected the plaintiff's employment in a tangible way), then the case is suited for trial, not summary judgment." Id.
Because Cordell does not have any direct evidence of discrimination, she must rely on the indirect burden-shifting method established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Department of Comm. Affairs v. Burdine, 450 U.S. 248 (1981). Under this approach, Cordell must first establish a prima facie case, by showing that: (1) she is a member of a protected class; (2) she performed her job satisfactorily; (3) she suffered an adverse employment action; and (4) the defendant treated similarly situated employees not in the protected class more favorably. Russell v. Board of Trustees of the Univ. of Ill at Chicago, 243 F.3d 336 (7th Cir. 2001) (citations omitted). If the Plaintiff fails to present enough evidence for a reasonable jury to find in her favor on one element of the prima facie case, summary judgment should be granted in the defendant's favor.
If the plaintiff succeeds in establishing a prima facie case with evidentiary-quality materials, the burden shifts to the Defendant to articulate a legitimate, non-discriminatory justification for the action. Id., citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Once the defendant does so, the Plaintiff must present sufficient evidence to create a triable issue with respect to whether this justification is a pretext for discrimination and not the real reason for the action. Id.
The Defendant in this case asserts that the Plaintiff has failed to establish the third and fourth factors of her prima facia case: that she suffered an adverse employment action; or that similarly situated male employees were treated more favorably. To establish an adverse employment action, a Title VII plaintiff must show a significant change in employment status, including such actions as "hiring, firing, failing to promote, reassignment with significantly different responsibilities, or some other action causing a significant change in benefits." McKenzie, 381 F.3d at 619, citing Burlington Industries, Inc., 524 U.S. at 761. An adverse employment action is one that is materially adverse, "meaning more than a mere inconvenience or an alteration of job responsibilities." Oest v. Ill. Dep't of Corr., 240 F.3d 605, 612 (7th Cir. 2001).
The Seventh Circuit has emphasized that an adverse employment action need not be quantifiable in terms of pay or benefits. Hilt-Dyson v. City of Chicago, citing Smart, 89 F.3d 437, 441 (7th Cir. 1996). Although the Seventh Circuit has defined adverse employment action broadly, that Court has stated on more than one occasion "not everything that makes an employee unhappy is an actionable adverse action." Smart v. Ball State University, 89 F.3d at 441. In Smart, the Seventh Circuit held that such things as negative performance evaluations and counseling statements, standing alone, cannot constitute an adverse employment action, although they could under proper circumstances be evidence of discrimination. Id., citing Sweeney v. West, 149 F.3d 550 (7th Cir. 1998).
Cordell claims that the following are adverse employment actions: (1) the failure of her supervisor to adequately train her for jobs she was required to do; (2) denial of specific job training that Dixon told her would result in an increase in pay; (3) the schedule change, which required her and her husband to drop college classes for which they had already paid, and to find new child care; and (4) assignment to the Catherine Kasper Home, where Nettrouer worked.
On the first two issues, Cordell has pointed to no caselaw supporting her claim that failure to adequately train an employee or denial of specific job training outside of the facility is in itself an adverse employment action. The evidence indicates that she successfully learned to operate the phone system and the security system on her own; she was never disciplined for failing to perform the jobs up to standard, and she received good evaluations and annual merit raises. Cordell's fears about what might happen if she did not receive additional training never materialized. Title VII does not guarantee that employees receive the best training for their jobs, or that they have the opportunity to maximize their income; it provides protection against discrimination. The Court finds that, under the circumstances as presented, the Defendant's failure to give Cordell the promised training does not rise to the level of an adverse employment action.
On the issue of outside training programs, Cordell claims that Dixon told her when she transferred to maintenance that she would be able to go to schools and receive certification, and that each additional certification she received would result in an increase in pay. After transferring to the Department, she was only allowed to do one in house certification program, and all her other requests were denied. If, as the Plaintiff claims she was told by her supervisor, the Defendant normally allows employees in the maintenance department to attend schools and get certification, and the additional certification automatically increases the employee's pay by $1.00 an hour, then the Defendant's refusal to allow the plaintiff to attend schools, get certified, and make more money, is a tangible employment action. Therefore, on this issue, a reasonable fact finder could conclude that Cordell suffered an adverse employment action.
The last two issues — the schedule change and the reassignment to the Katherine Kasper Home — are similar to cases in which an employee receives an unwanted transfer. Cordell continued to work within the maintenance department, but her job duties were changed, as well as her schedule, requiring her to make new arrangements for childcare and withdraw from her college classes. The Seventh Circuit has made it clear that a transfer does not become an adverse employment action solely because the employee prefers one position over the other. McKenzie, 381 F.3d at 625. In McKenzie, the plaintiff was a sheriff's deputy claiming that her reassignment was an adverse employment action. The Court noted that sheriff's deputies are frequently reassigned during the course of their careers, and that the plaintiff's transfer allowed her to maintain the same pay and benefits. Id. The Seventh Circuit held that the plaintiff's transfer did not constitute an adverse employment action.
Similarly, in Haugerud, the plaintiff alleged that she suffered adverse employment actions within the meaning of Title VII when her employer "1) tried to force her to give up her custodial position, 2) told the male night custodians not to help the female day custodians, 3) gave her additional responsibilities above what was expected of the male custodians and above that which she should have reasonably have been given, and 4) intentionally interfered with the performance of her work duties." Haugerud, 259 F.3d at 690. The Seventh Circuit noted that,
While many of these instances might have indeed been harassing, as we discuss below, none of them resulted in any materially adverse change in the terms, conditions, or privileges of plaintiff's employment. Plaintiff has not been disciplined, demoted, or terminated; has not been denied wage or employee benefit increases or been given less opportunity for such increases; and has not had her job responsibilities reduced or been made to perform more menial tasks. She transferred into the high school on the basis of her seniority under the collective bargaining agreement, and has not been transferred since then.
In this case, the new schedule was inconvenient for Cordell. She was forced to drop classes, lose her tuition money, and make new childcare arrangements. But these problems, although difficult, are not changes in her employment status. The fact that changes at work made the changes in her personal life necessary does not turn them into "changes in her employment status." Although the changes placed a burden on Cordell, as recognized by Defendant's Human Resources Department, the Court finds that the schedule change did not result in any materially adverse change in the terms, conditions, or privileges of her employment. Like the plaintiff in Haugerud, she has not been disciplined, demoted, or terminated; and she was paid more in the new position. Therefore, the change in Cordell's schedule and job duties does not qualify as an adverse employment action.
Cordell also claims that the transfer and schedule change was an adverse employment action because it forced her to work alone and unsupervised in the same building with the man she had accused of harassing her. Therefore, the transfer would expose her to the possibility of new harassment by Nettrouer. However, she admits that he had not bothered her since she filed her complaint about him, and she had no reason to believe that he intended to harass her again.
Cordell testified in her Deposition that she did not report Nettrouer's harassment sooner because she was not sure he was harassing her. In discussing Nettrouer's harassment in her Affidavit, Cordell described the conduct that she found offensive, including unwanted touching, comments about her looks, staring at her, following her home from work, and writing her a letter. Cordell does not indicate, however, that she was afraid of Nettrouer, or that she considered him dangerous, just that she had "had enough" and wanted her supervisor to do something. Based on Cordell's testimony, the Court concludes that the decision to have her work in the same building with Nettrouer, after almost a year with no problems, was not such a significant change in her employment status as to constitute an adverse employment action.
In summary, Cordell has submitted sufficient evidence for a trier of fact to find that she suffered an adverse employment action, if she can establish that she was promised additional training opportunities that would have increased her pay, but was denied all the additional training opportunities that she requested. This allows her to present evidence on the fourth prong, that other, similarly situated male employees were treated more favorably. It is clear that Cordell felt subjectively that male employees in the maintenance department were more favorably treated. However, she must submit admissible evidence that would allow a trier of fact to find objectively that the male employees were more favorably treated. Cordell's only evidence is to cite her Deposition and Affidavit, where she made statements that male employees in the department were allowed to get additional training, specifically, Frank Pele, and Brian Dixon. Her testimony about Frank Pele has already been stricken by the Court, but even if admitted, Cordell has not shown that she was similarly situated to Frank Pele and Brian Dixon. Her own testimony establishes that Frank Pele was hired in as a Tech II, and that Dixon is Cordell's supervisor. Cordell is in the position of Tech I. She has not provided any evidence that other Tech I's were sent to schools for certification and given a pay increase. In fact, she admitted in her Deposition that other co-workers were performing work that they were not certified for, and that she did not think she was the only one that wanted to go to school for certification. Cordell Dep. at p. 203.
Therefore, Cordell has failed to establish the fourth prong of a prima facie case of discrimination on the one issue that would allow a trier of fact to find that she suffered an adverse employment action. Although she could survive summary judgment on her claim that she was denied training that would increase her pay, she has not provided admissible evidence that similarly situated male employees were treated more favorably. Therefore, the Defendant's Motion for Summary Judgment on this issue is GRANTED.
3. Sexual Harassment
Cordell also claims that, after she returned from FMLA leave, she was subjected to treatment by her supervisors Dixon, Emmons, and Overland that amounted to sexual harassment and retaliation for filing the complaint against Nettrouer. These additional events fall within the 300 day period before she filed her EEOC Complaint, as required for a claim under Title VII. However, her claim for sexual harassment is based on the same evidence as her claim for gender discrimination: (1) the failure of her supervisor to adequately train her for jobs she was required to do; (2) denial of specific job training that Dixon told her would result in an increase in pay; (3) the schedule change, which required her and her husband to drop college classes for which they had already paid, and to find new child care; and (4) assignment to the Catherine Kasper Home, where Nettrouer worked.To establish a claim sexual harassment based on a hostile work environment, Cordell must show that she was subjected to harassment so severe or pervasive that it altered the conditions of her employment. McKenzie v. Milwaukee County, 381 F.3d 619 (7th Cir. 2004), (citations omitted). "Whether the harassment rises to this level turns on a constellation of factors that include `the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'" Hostetler v. Quality Dining, Inc., 218 F.3d 798, 806 (7th Cir. 2000), citing, Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).
Actionable sexual harassment is not limited to acts or language of a sexual nature, see, Haugerud v. Amery School District, 259 F.3d 678 (7th Cir. 2001) (citations omitted), but rather "is a broad term which `encompasses all forms of conduct that unreasonably interfere with an individual's work performance or create an intimidating, hostile, or offensive working environment,'" because of gender. Id. In addition, the Seventh Circuit has recognized, "that harassment need not be both severe and pervasive — one extremely serious act of harassment could rise to an actionable level as could a series of less severe acts." Id. To be actionable, sexual harassment must be both objectively and subjectively hostile. Id., citing Harris, 510 U.S. at 21-22. The plaintiff cannot establish that she was subjected to a hostile work environment for purposes of Title VII unless a reasonable person would find it offensive, and that she actually perceived it as such. Id., citing Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998). "When the workplace is permeated with `discriminatory intimidation, ridicule, and insult,' that is `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,' Title VII is violated." Harris, 510 U.S. at 370, citing, Meritor Savings Bank, FSB v. Vinson, 477 U.S., at 65 (internal brackets and quotation marks omitted). On the other hand, Title VII is not a "general civility code" designed to purge the workplace of all boorish or even harassing conduct. See, Berry v. Delta Airlines, Inc., 276 F.3d 345, 252 (7th Cir. 2001) (citations omitted).
In the context of a sexual discrimination charge, the critical question is "whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." Id., citing Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998). In other words, the Court must decide whether a reasonable trier of fact could find that the plaintiff was harassed, that she was harassed because of her sex, and that the conduct was severe or pervasive enough to create a subjectively and objectively hostile work environment. Id., citing Mazzei v. Rock-N-Around Trucking, Inc., 246 F.3d 956, 959 (7the Cir. 2001).
In this case, Cordell was clearly unhappy about some of her work assignments, about the fact that she was denied additional training which her supervisor told her would result in higher pay, and about the fact that Green told her he was paid more for doing the phones, while she was not. However, Cordell's subjective opinion is not enough to establish sexual harassment in the workplace. The conduct must be both subjectively and objectively offensive. As noted above, not everything that makes an employee unhappy is actionable discrimination or harassment.
The type of harassment in this case is similar to the complaint in Haugerud, 259 F.3d 678. In that case, the plaintiff was a female janitor, a traditionally all-male occupation. Haugerud, 259 F.3d at 694-6. She presented evidence of harassment that was not sexual in nature, but rather was directed at the terms and conditions of her employment, including: 1) questioning her abilities and the ability of women to do her job in general; 2) plotting to give her job to a male custodian; 3) increasing her duties in an attempt to make her quit; 4) withholding necessary assistance; 5) hiding the tools necessary to do her job; and 5) making discriminatory comments. Id. at 695.
"These incidents of discriminatory treatment directed towards the plaintiff and other women were unmatched in the record by similar reports of this type of conduct being directed toward men." Id. The Seventh Circuit concluded that a reasonable trier of fact could find that the "plaintiff was treated differently than her male colleagues because of her sex, in a manner that was both subjectively and objectively harassing, and at a sufficient level of pervasiveness to trigger liability under Title VII." Id. at 696. While the Seventh Circuit ruled that the plaintiff in Haugerud had failed to establish gender discrimination, she had presented sufficient evidence to survive summary judgment on her complaint of harassment based on her sex.
In this case, the plaintiff has presented some evidence that her supervisors want her to quit so they could replace her with a male, and that they gave her a difficult assignment to further that objective. She has not presented evidence, however, that they made any comments about her gender, or about the ability of women in general to do maintenance work, or about men not helping her if she needed help, or anything else that would allow even an inference that she was treated differently because she was a woman. On the issue of lack of training and denial of outside certification schools, Cordell admitted that the male Tech I's were treated the same. The harassment must be because of her gender.
One incident suggesting that Dixon and Emmons gave Cordell a difficult job assignment hoping that she would quit so they could replace her with a qualified male candidate, without more, is insufficient to allow a reasonable trier of fact to find the kind of severe and pervasive harassment required for a judgment in Cordell's favor on this issue. The Defendant's Motion for Summary Judgment is GRANTED on this issue as well.
B. Retaliation
The standard for summary judgment on Title VII unlawful retaliation claims was clarified by the Seventh Circuit in 2002, in Stone v. City of Indianapolis Public Util. Div. 281 F.3d 640 (2002), cert. denied, 537 U.S. 879. Hudson v. Chicago Transit Authority, 375 F.3d 552, 559 (7th Cir. 2004). To establish a prima facia case of retaliation under Title VII, Cordell may proceed under either the direct or the indirect method. Id. Under the direct method, she must present "direct evidence (evidence that establishes without resort to inference from circumstantial evidence) that [she] engaged in protected activity (filing a charge of discrimination) and as a result suffered the adverse employment action of which [she] complains." Stone, F.3d at 643. "If the evidence is uncontradicted, the plaintiff is entitled to summary judgment. If it is contradicted, the case must be tried unless the defendant presents unrebutted evidence that he would have taken the adverse employment action against the plaintiff even if he had had no retaliatory motive; in that event the defendant is entitled to summary judgment because he has shown that the plaintiff wasn't harmed by retaliation." Id.
The second route to avoid summary judgment is an adaptation of the McDonnell Douglas framework to the retaliation context, and requires the plaintiff to show that after filing the charge, she was subjected to an adverse employment action even though she was performing her job in a satisfactory manner; and that only she, and not any similarly situated employee who did not file a charge, was subjected to the adverse employment action. Hudson, 375 F.3d at 559. Even if Cordell succeeds in establishing a prima facia case, if the employer presents unrebutted evidence of a noninvidious reason for the adverse action, he is entitled to summary judgment. Once the employer provides a legitimate, non-discriminatory reason, the burden shifts back to the plaintiff to show that the proffered reason is a pretext for retaliation.
First, the Court notes that Cordell states in her Memorandum that there is direct evidence of an intent to retaliate in this case, but direct evidence is rare in retaliation cases, and the Plaintiff has submitted any. Pl.'s Mem. in Opp. at pp. 16-22. Therefore, she must proceed under the indirect, burden shifting method. Cordell does not have to succeed on her discrimination claim to satisfy the elements of a prima facia case of retaliation, as this Court has seen in an increasing number of Title VII discrimination cases, in which the plaintiff fails to establish discrimination or harassment, yet succeeds on a claim for retaliation.
But even under the indirect method, Cordell's retaliation claim fails for the same reason as her discrimination claim: she has not submitted admissible evidence that would allow a trier of fact to infer that she has suffered an adverse employment action, except on the training issue; and on that issue, she has not provided any evidence of a similarly situated employee who did not file a Complaint who received the training and/or was paid more. Without some evidence of a similarly situated employee who received the training and/or was paid more, Cordell cannot survive summary judgment on a retaliation claim. Therefore, the Defendant's Motion for Summary Judgment is GRANTED on this issue also.
C. Intentional infliction of emotional distress under Indiana state law
Finally, the Defendant seeks summary judgment on Cordell's state law claim for emotional distress. Intentional infliction of emotional distress is committed by "one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another. . . ." Ledbetter v. Ross, 725 N.E.2d 120 (Ind. Ct App. 2000); citing Cullison v. Medley, 570 N.E.2d 27, 31 (Ind. 1991). "Thus, the elements of the tort are: a defendant (1) engages in extreme and outrageous conduct that (2) intentionally or recklessly (3) causes (4) severe emotional distress to another." Bradley v. Hall, 720 N.E.2d 747, 752 (Ind.Ct.App. 1999). It is the intent to harm one emotionally that constitutes the basis for the tort of an intentional infliction of emotional distress. Id. The requirements to prove this tort are "rigorous." KEETON ET AL., § 12 at 61.
It is not enough that the Defendants acted with an intent that was tortious, or even criminal, or that they intended to inflict emotional distress, or even that their conduct has been characterized by "malice", or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Bradley, 720 N.E.2d at 753. "Liability has only been found where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id. "Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, `Outrageous.'" Id., citing R.2d Torts § 46.
In Bradley, the Indiana Court of Appeals found there was a triable issue of fact on the plaintiff's claim where she alleged that her supervisor harassed her, shouted at her, and criticized her work in front of other employees, inquired about her menopause and asked whether her husband was sexually impotent from diabetes, and where her supervisor misrepresented the company's intentions about the security of her position. Id. The Court concluded that this conduct could be considered severe and outrageous, and permitted an inference that the supervisor intended to harm the plaintiff emotionally. Id.; but see, King v. Wiseway Super Center, Inc., 954 F. Supp. 1289 (N.D. Ind. 1997) (dismissing a claim for intentional infliction of emotional distress, where the Plaintiff's supervisor constantly sabotaged her efforts to perform her job by scheduling her improperly, not allowing her to perform her job duties, not treating her as a manager, not giving her the information she needed, never communicating with her, never training her, forcing her to work without breaks, and making derogatory comments to others about her and her abilities); see also, McCreary v. Libbey-Owens-Ford Co., 132 F.3d 1159 (7th Cir. 1997) (holding that a single incident of yelling at plaintiff and refusing to assign him to quality control is not the kind of "extreme and outrageous conduct" the Indiana Supreme Court had in mind when it adopted the tort).
In the present case, Cordell has not alleged facts sufficient to support a claim that the Defendant's conduct was severe and outrageous, or that the Defendant's intent was to harm her emotionally. While her supervisor's attitude towards her was undoubtedly distressing to Cordell — as for example, when she was reassigned to the evening shift and assigned to paint the Katherine Kasper Home — it does not exceed all bounds usually tolerated by a decent society, such that a person hearing of it would exclaim, "Outrageous." In fact, the Plaintiff continued to work for the Defendant after these incidents. Accordingly, summary judgment is GRANTED for the Defendant on Plaintiff's claim for intentional infliction of emotional distress.
VI. CONCLUSION
For the reasons explained above, the Defendant is entitled to judgment as a matter of law on all of the Plaintiff's claims. Therefore, the Defendant's Motion for Summary Judgment is GRANTED on all claims. Each party is to bear their own costs.
IT IS SO ORDERED.