Opinion
CAUSE NO. IP01-0337-C-K/H
August 19, 2003
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
I. Introduction
Sandra Rayl's employment with Decision One Mortgage Company was short, yet eventful. Despite — and maybe because of — her years of experience in the mortgage industry, Rayl suffered substantial difficulty in following the loan procedures as established by Decision One. Her branch manager, Robert Jenkins, reprimanded her because of her deficiencies and because he found Rayl to be too assertive for his liking. Rayl has taken issue with those reprimands, claiming that unnamed males were not treated similarly, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Furthermore, Rayl takes issue with Jenkins' arguably bullish and inappropriate management style, claiming that he subjected her to a sexually hostile work environment, also in violation of Title VII. Decision One has filed for summary judgment on all claims. For the reasons set out below, the Court GRANTS Defendant's motion in all respects.
II. Summary Judgment Standard
Summary judgment is proper "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Butera v. Cottey, 285 F.3d 601, 605 (7th Cir. 2002). To determine whether any genuine fact exists, the Court must pierce the pleadings and assess the proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part of the record. First Bank Trust v. Firstar Information Services, Corp., 276 F.3d 317, 322 (7th Cir. 2001); Fed.R.Civ.P. 56(e) (advisory committee's notes). The Court construes all facts and draws all reasonable inferences in the light most favorable to the nonmoving party. Demos v. City of Indianapolis, 302 F.3d 698, 701 (7th Cir. 2002), citing Albiero v. City of Kankakee, 246 F.3d 927, 931-32 (7th Cir. 2001). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Because the purpose of summary judgment is to isolate and dispose of factually unsupported claims, the non-movant must respond to the motion with evidence setting forth specific facts showing that there is a genuine issue for trial. See Michael v. St. Joseph County, 259 F.3d 842, 845 (7th Cir. 2001). To successfully oppose the motion for summary judgment, the non-movant must do more than raise a "metaphysical doubt" as to the material facts. See Wolf v. Northwest Ind. Symphony Soc'y, 250 F.3d 1136, 1141 (7th Cir. 2001). A scintilla of evidence in support of the non-movant's position is not sufficient to defeat a summary judgment motion; "there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson, 477 U.S. at 250.
III. Local Rule 56.1 Deficiencies
As a preliminary matter, and before diving into the facts of this case, the Court notes the apparent disregard by the Plaintiff of the requirements of Local Rule 56.1, which govern the summary judgment procedure in this district. In relevant part, L.R. 56.1(b) states that a non-moving party's brief "shall include a section labeled "Statement of Material Facts in Dispute" which responds to the movant's asserted material facts. . . ." (emphasis added). While this does not require a nonmoving party to respond to each and every fact, point by point, it does require that the nonmoving party submit potentially determinative facts and identify factual disputes which the nonmoving contends precludes summary judgment.
In the case at hand, Rayl has failed to respond to Decision One's proffered facts. Instead, Rayl chooses only to submit additional facts which are not responsive, and virtually ignores those facts proffered by Decision One. While it is certainly proper, if not necessary, for a nonmovant to submit additional, unresponsive facts when opposing a summary judgment motion, failure to respond to the movant's facts may be perilous to the nonmovant's case. Indeed, the very language of L.R. 56.1(e) warns a nonmovant that uncontroverted facts, properly supported by admissible evidence, will be assumed admitted by the Court. See also Gates v. L.R. Green Co., 2002 WL 826394, *2 (S.D.Ind. 2002); Spears v. Delphi Automotive Systems Corp., 2002 WL 1880756, *4 (S.D.Ind. 2002). Furthermore, "a lawsuit is not a game of hunt the peanut. Employment discrimination cases are extremely fact-intensive, and neither appellate courts nor district courts are `obliged in our adversary system to scour the record looking for factual disputes. . . .'" Greer v. Board of Educ. of City of Chicago, Ill., 267 F.3d 723, 727 (7th Cir. 2001), quoting Waldridge v. American Hoechst Corp., 24 F.3d 918, 921-22 (7th Cir. 1993). The Court will, therefore, assume admitted those facts proffered by Decision One which are supported by admissible evidence and not disputed by Rayl.
IV. Background
The facts are either undisputed or viewed in a light most favorable to Rayl, the non-moving party.
Decision One hired Rayl on February 1, 2000 as an underwriter in its Indianapolis branch with a starting salary of $55,000 annually, plus incentives. [Rayl Dep., pp. 27, 34; Jenkins Dep., pp. 38-39; Def.'s Ex. A; Rayl Aff., ¶ 3]. Robert Jenkins, Decision One's branch manager, hired Rayl. [Jenkins Dep., pp. 33-34; Rayl Aff., ¶ 3]. Although the extent of her previous experience is unclear, prior to her employment with Decision One, Rayl apparently had several years experience in the mortgage industry, including holding the position of operations manager. [Rayl Aff., ¶ 3].
In her brief tenure with Decision One, Rayl's duties as an underwriter included reviewing credit and financial information, title commitment, and other documents required to underwrite and close mortgage loans. Her duties also required her to work with brokers and account executives to close the loans. [Rayl Dep., pp. 28, 30-31]. In performing these duties, Rayl had limited discretion to approve the amount of a loan. Rayl could close a loan of $75,000 or less without secondary approval. For all loans with a monetary value higher than $75,000, Rayl was required to gain the approval of Jenkins, the branch manager. [Rayl Dep., pp. 29-30; Jenkins Dep., pp. 51-52].
Shortly after her employment began, Rayl experienced performance issues, including failing to adhere to Decision One's procedures for closing loans. For example, on April 12, 2000, Rayl sent a loan to the closing department that was over her $75,000 limit. On that same loan, Rayl failed to identify income for the co-borrower on the appropriate forms, yet credited the co-borrower for $2,000 of income. In addition, Rayl failed to verify the employment of the co-borrower and misstated the payoff date of the first mortgage. [Jenkins Dep., p. 48; Def.'s Ex. E]. On April 25, 2000, Rayl sent another loan to closing which was over her approval limit. In addition, Rayl failed to calculate a proper payment amount on three credit card debts, failed to obtain the borrower's correct pay stubs, and inquired about a crawl space for a house that, evidently, had a basement. [Jenkins Dep., pp. 50-51; Def.'s Ex. F]. On April 27, 2000, Rayl again sent a loan to the closing department that was over her approval limit. With respect to this loan, Rayl failed to consider an open collection, failed to consider two accounts in debt ratio, miscalculated an automobile payment, miscalculated the co-borrower's social security income, and failed to obtain a signature on the broker agreement. [Jenkins Dep., pp. 49-50; Def.'s Ex. G].
Decision One verbally counseled Rayl for her poor performance with respect to loan closing procedures on at least two occasions. First, in early March 2000, Jenkins and Leisa Summers, senior underwriter, spoke with Rayl regarding slow turnaround time on her loans. [Jenkins Dep., pp. 61-62]. On April 15, 2000, Jenkins and Summers again counseled Rayl regarding loans Rayl sent to the closing department that were over her $75,000 limit. [Jenkins Dep., p. 62].
While Decision One alleges that Rayl received a third counseling in late March regarding failure to verify an applicant's employment, the Court is not convinced. [Def.'s Br., p. 2]. Local Rule 56.1(e) states, in relevant part, that:
the Court will assume that the facts as claimed and supported by admissible evidence by the moving party are admitted to exist without controversy, except to the extent that such facts: are specifically controverted in the opposing party's "Statement of Material Facts in Dispute" by admissible evidence; are shown not to be supported by admissible evidence; or alone, or in conjunction with other admissible evidence, allow reasonable inferences to be drawn in the opposing party's favor which preclude summary judgment.
(emphasis added). Rayl did not specifically contest this fact in her opposition. This does not, however, alleviate Defendant of its responsibility to rely on admissible evidence. Defendant relies on two pieces of evidence to support its contention that it counseled Rayl in late March. The first, Defendant's position statement to the EEOC, is inadmissible hearsay. While the Court is cognizant of the fact that an employer's position statement may, in certain circumstances, be both relevant and admissible, it does not find that to be the case here, where Defendant attempts to present the conclusions of its human resources manager as fact. The second piece of evidence, Jenkins' deposition testimony, does not support the proposition that Decision One counseled Rayl in late March.
Rayl's performance problems were not solely limited to loan closing procedures. Decision One claims her overall productivity was not up to standards, and that it received several complaints from Rayl's co-workers regarding her professionalism. In April 2000, of the four full-time underwriters employed by Decision One, Rayl underwrote and sold the fewest number of loans. In addition, she scored the lowest on a "Product/Guidelines Knowledge Test" administered on April 13, 2000. [Def.'s Ex. D, Att. 3, p. 2]. Co-workers lodged various complaints, which included: Rayl's failure to return phone calls, limited product knowledge, failure to timely give the closing department files, and providing the closing department with incomplete files. [Def.'s Ex. D, Att. 3, pp. 5, 10].
On April 25, 2000, Jenkins again met with Rayl to discuss various performance issues. During this conversation, Jenkins determined that "the relationship was not a successful one." [Jenkins Dep., pp. 63-64, 89; Def.'s Ex. D, Att. 3, p. 4]. Thereafter, on April 27, 2000, Jenkins e-mailed Edith Lane, human resources manager, regarding Rayl's behavior. In the e-mail, Jenkins describes Rayl's performance issues regarding loan procedure. In addition, he describes her as insubordinate, manipulative, untruthful, and disruptive. [Jenkins Dep., pp. 64, 89; Def.'s Ex. D, Att. 3, p. 1].
Jenkins is not the world's greatest boss. He throws "tantrums" in front of employees, yells, uses profanity, calls employees "stupid", and "belittles" and "berates" employees in front of co-workers. [Rayl Aff., ¶¶ 5-6, 8; Summers Aff., ¶¶ 4-7; Early Aff., ¶¶ 4-7]. Rayl, as well as other female coworkers, was among the recipients of Jenkins' wrath. [Id.] Phil Bond, a male underwriter, was also on the receiving end of Jenkins' verbal abuse, including being "treated like dirt" and called "stupid." [Early Dep., pp. 23, 28-30]. Jenkins also reprimanded Bond in Jenkins' office with the door open regarding Bond's performance. The reprimand could be heard throughout the office. [Summers Dep., pp. 36-37]. Jenkins also spoke openly regarding his feelings on Mark Hayne's performance. Jenkins stated that he believed Haynes was lazy, and that he did not like Hayne's work. [Summers Dep., pp. 37-38]. Summers, on whom Rayl relies heavily in opposing summary judgment, testified that she believed Jenkins singled out Rayl and Bond, and that his hostility permeated throughout the office among men and women. [Summers Dep., pp. 90-91].
Rayl subsequently resigned on May 12, 2000 because of what she perceived to be a hostile work environment. [Am. Compl., pp. 2-3].
V. Discussion
In her amended complaint, Rayl alleges that Decision One discriminated against her on the basis of sex and subjected her to a hostile work environment that ultimately led to her constructive discharge. In addition, Rayl, without elaboration, brings state claims for wrongful discharge and emotional distress. As discussed below in greater detail, it is unclear on which cause or causes of action Rayl wishes to proceed. Decision One has requested summary judgment on all claims, yet Rayl has responded only with respect to her hostile environment claim. "[T]he . . . effect of a non-movant's failure to respond to a motion for summary judgment is that it constitutes an admission by the non-movant that there are no disputed issues of genuine fact warranting a trial. . . ." Flynn v. Sandahl, 58 F.3d 283, 288 (7th Cir. 1995), citing Johnson v. Gudmundsson, 35 F.3d 1104, 1112 (7th Cir. 1994); Glass v. Dachel, 2 F.3d 733, 739 (7th Cir. 1993). Regardless of Rayl's response, or lack thereof, the Court addresses each claim in turn.A. Hostile Work Environment
The Court first addresses Rayl's claim of a sexually hostile work environment, which is the only claim Rayl addresses in her summary judgment response. In her brief, Rayl states that "in the Title VII context a gender discrimination claim falls into two general categories. . . . Those two categories are either a quid pro quo sexual harassment case or a hostile work environment sexual harassment case." [Pl.'s Brief, p. 2]. This is not entirely accurate. Rayl appears to have focused solely on sexual harassment as opposed to other forms of sex discrimination, e.g. failure to promote. To this extent, Rayl is correct that, generally, courts have labeled sexual harassment claims to be either quid pro quo or "hostile work environment." See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 751-54 (1998). In any event, Rayl concedes that she does not have a claim for quid pro quo sexual harassment and is only proceeding with a hostile work environment claim. [Pl.'s Br., p. 3].
Neither party numbered the pages of their summary judgment briefs, in violation of Local Rule 5.1(a), which requires that "[e]ach page shall be numbered consecutively." When referring to a specific page number in the parties' briefs, the Court has counted the actual number of the page to which it is referring. To prevent confusion, the Court reminds the parties of their obligation to comply with L.R. 5.1 in the future.
"In order to prevail on a hostile environment sexual harassment claim, a plaintiff must show that his or her work environment was both subjectively and objectively hostile." Adusumilli v. City of Chicago, 164 F.3d 353, 361 (7th Cir. 1998), citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). To maintain a hostile work environment action, however, the harassment "must be sufficiently severe or pervasive." Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986) ("not all workplace conduct that may be described as `harassment' affects a "term, condition, or privilege" of employment within the meaning of Title VII"). While the harassment does not have to be both severe and pervasive, as "one extremely serious act of harassment could rise to an actionable level as could a series of less severe acts," it does have to be because of sex. Haugerud v. Amery School District, 259 F.3d 678, 693 (7th Cir. 2001). The Court, therefore, must ask whether Rayl was "`exposed to disadvantageous terms or conditions of employment to which members of the other sex [were] not exposed.'" Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998), quoting Harris, 510 U.S. at 25 Ginsburg, J. concurring).
Rayl fails in each of these respects. Even if the Court assumes that Rayl subjectively believed her work environment to be sufficiently hostile, her claim must fail as she does not satisfy the objective prong of the test. "An objectively hostile work environment is one that a reasonable person would find hostile or abusive." Haugerud, 259 F.3d at 693. To make this determination, the Court considers all the circumstances, including "`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.'" Id. at 693, quoting Harris, 510 U.S. at 23.
To support her claim for a hostile work environment, Rayl offers the following instances of alleged harassment: (1) Rayl "suffered numerous instances of Jenkin's [sic] verbally abusing female employees, including calling them `stupid' and having `tantrums' in the office;" (2) Jenkins "continuously" belittled and berated Rayl in front of other employees; and (3) female employees, including Rayl, were reprimanded in view of other employees while males were disciplined behind closed doors. [Pl.'s Br, p. 4]. Under these circumstances, the Court cannot conclude the alleged instances rise to the level of being sufficiently severe or pervasive to create a hostile work environment.
As evidence of the "numerous" instances of abuse and her "continuous" belittlement, Rayl produces as evidence nothing more than conclusory statements. For example, Rayl cites to her own affidavit which states in conclusory fashion, "[t]hat Jenkins continuously berated, belittled and harassed Rayl during her tenure with Decision One." [Rayl Aff., ¶ 8]. Rayl provides no specifics regarding the dates or times of those incidents, or any other information to establish that this alleged harassment was "continuous." "Under our precedent, these conclusory statements, unsupported by the evidence of record, are insufficient to avoid summary judgment." Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir. 2001), see also Drake v. Minnesota Mining Mfg. Co., 134 F.3d 878, 887 (7th Cir. 1998) ("Rule 56 demands something more specific than the bald assertion of the general truth of a particular matter, rather it requires affidavits that cite specific concrete facts establishing the existence of the truth of the matter asserted.") (citation and quotation marks omitted).
The Seventh Circuit has repeatedly held situations far more offensive than that described by Rayl as falling short of an objectively hostile work environment. For example, in Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430-31 (7th Cir. 1995), the court found that the plaintiff could not establish an objectively hostile environment when, over the course of seven months, the plaintiff's supervisor called her "pretty girl"; made the grunting sound "um um um" when plaintiff wore a leather skirt; told plaintiff his office was "hot" whenever she was present; suggested that "[a]ll pretty girls run around naked"; called plaintiff a "tilly", explaining that it was a term used for all women; stating that his reason for leaving a party early was because he "didn't want to lose control" with all the pretty girls; and suggesting to the plaintiff that masturbation was his only consolation in the absence of his wife. See also Adusumilli v. City of Chicago, 164 F.3d 353, 361-63 (7th Cir. 1998) (teasing, isolated touchings, including a poke to the buttocks); Rogers v. City of Chicago, 320 F.3d 748, 753 (7th Cir. 2003) ("a number offensive comments over the period of several months," four of which were sexual in nature). Here, Rayl does not allege that Jenkins touched her inappropriately, nor does she allege that any of Jenkins' alleged "verbal abuse" was of a sexual nature. At most, she can show only that Jenkins was an overly bullish boss that directed his wrath at all of his employees, regardless of gender. In short, Rayl's allegations do not rise to the level of being sufficiently severe or pervasive for a reasonable person to find hostile or abusive as those terms have been interpreted by the Seventh Circuit. She, therefore, fails the objective requirement of the hostile work environment test.
Because Rayl fails the objective, reasonable person test, her constructive discharge claim must also fail. See E.E.O.C. v. University of Chicago Hospitals, 276 F.3d 326, 332 (7th Cir. 2002) (where employee alleges that she resigned because of discriminatory harassment, "we require the plaintiff to demonstrate a discriminatory work environment `even more egregious than the high standard for hostile work environment.'").
Furthermore, Rayl cannot prove that she suffered the alleged incidents because of her sex. The undisputed record reveals that Jenkins verbally abused, belittled, and called stupid both men and women. In other words, he may have been abusive, but he was abusive to all, regardless of gender. "[I]nappropriate conduct that is inflicted on both sexes, or is inflicted regardless of sex, is outside [Title VII's] ambit. Title VII does not cover the `equal opportunity' or `bisexual' harasser, then, because such a person is not discriminating on the basis of sex. He is not treating one sex better (or worse) than the other; he is treating both sexes the same (albeit badly)." Holman v. State of Indiana, 211 F.3d 399, 403 (7th Cir. 2000).
Rayl further fails in this respect because her own argument, and alleged facts, establish that she was not "harassed" because of her sex, but rather because "Jenkins did not like Sandra K. Rayl's assertiveness. . . ." [Pl.'s Contested Facts ¶ 12]. Rayl states that "Jenkins' decision to force Sandra K. Rayl to resign was not due to work performance, but rather due to her assertiveness and standing up to Jenkins' actions in the office." [Pl.'s Contested Facts ¶ 14]. Clearly, "assertiveness" is not a gender specific trait. Rayl's argument that she was treated differently because of her assertiveness, and not because of sex, therefore, dooms her claim. Defendant's motion for summary judgment on this claim is, therefore, GRANTED.
This is not to say that a male supervisor could not treat "assertive males" differently from "assertive females" or that a male supervisor may only find "assertiveness" to be distasteful in female subordinates. However, Rayl does not make this argument, nor does the record suggest this to be a possibility.
B. Sex Discrimination
Rayl also, purportedly, brings a claim for sex discrimination. [Am. Compl., ¶ 4]. Decision One apparently believed this to be the focal point of Rayl's complaint, and focused its argument on this claim. As noted above, Rayl seemingly has chosen to abandon this claim and proceed solely on her claim of a hostile work environment. Because Rayl did not specifically abandon her sex discrimination claim, the Court will address the merits. Her failure to respond to Decision One's motion in this respect, however, significantly impacts the viability of this claim.
Under Title VII, it is unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex." 42 U.S.C. § 2000e-2(a)(1). To prove discrimination, Rayl may either present direct evidence of discrimination or utilize a burden-shifting approach. Lim v. Trustees of Indiana University, 297 F.3d 575, 580 (7th Cir. 2002). Rayl does not offer direct evidence of discrimination. The Court will, therefore, evaluate her claim under the familiar burden-shifting approach. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
To establish a prima facie case of discrimination under this approach, Rayl "must show that she belongs to a protected class, that she was performing up to the employer's legitimate expectations, that she suffered an adverse employment action, and that the employer treated similarly situated employees outside the protected class more favorably." Mateu-Anderegg v. School Dist. of Whitefish Bay, 304 F.3d 618, 625 (7th Cir. 2002). Decision One concedes that Rayl is a member of a protected class and that, for purposes of its motion, she suffered an adverse action. [Def.'s Br., p. 8, n. 1; p. 9, n. 2]. Decision One maintains, however, that Rayl did not meet its legitimate performance expectations nor was she treated differently than similarly situated males. The Court agrees.
Decision One states that it "will concede for the purposes of this motion that Ms. Rayl was reprimanded because of her conduct and that such reprimands may fall within the definition of adverse action under a Title VII claim." [Def.'s Br., p. 9, n. 2]. The Court will assume, without deciding, this to be accurate, but notes that negative performance evaluations and reprimands, standing alone, are not adverse employment actions. See Sweeney v. West, 149 F.3d 550, 556-57 (7th Cir. 1998).
First and foremost, Rayl failed to identify any similarly situated males who were treated more favorably. Rayl presents no evidence to dispute Decision One's position on this issue, and does not address the issue in her response to the motion for summary judgment. For that reason alone, summary judgment is proper on this claim.
Although Rayl's lack of evidence regarding similarly situated males is fatal to her claim, the Court will nonetheless continue down the prima facie path. "Consideration of the employer's legitimate expectations ties in with the next step in the burden-shifting analysis. The employer must provide legitimate, nondiscriminatory reasons for the employment action and, if that is done, the plaintiff must show that the reasons given are pretextual. As is often the case, these items tend to merge." Mateu-Anderegg, 304 F.3d at 625-26. In its brief, Decision One identifies several areas in which Rayl failed to meet its legitimate performance expectations and which led to her reprimands. Rayl fails to dispute Decision One's version of events and, therefore, the Court deems those facts admitted to the extent they are supported by admissible evidence.
Instead, Rayl challenges her reprimands as pretextual, offering a single sliver of evidence. Rayl argues that Jenkins stated that "he did not like Sandra Rayl due to her assertiveness and that he would see to it that [Rayl] quit her job" and, therefore, her reprimands were "created to sabotage Rayl and to cover Jenkins' discriminatory acts." [Summers' Aff., ¶ 7; Pl.'s Br., ¶ 4]. Rayl's argument is unconvincing.
In her brief, Rayl clearly misquotes Summers' affidavit. According to Summers' statement, "Jenkins made the remark to affiant that he did not like Sandra Rayl due to her assertiveness and that he would see to it that she quit her job." [Summers Aff., ¶ 7]. This is a far cry from Jenkins stating that he would "make her life miserable so she would quit." [Pl.'s Br., p. 4]. The Court expects counsel to quote text accurately.
Because Rayl does not have direct evidence of pretext, she must establish that the "stated reason for disciplining her is merely a pretext for discrimination by showing that [Defendant's] reason is: (1) factually baseless; (2) not the actual motivation for the discipline; or that it is (3) insufficient to motivate the discipline." Wade v. Lerner New York, Inc., 243 F.3d 319, 323 (7th Cir. 2001). She fails in each respect. First, it is undisputed that Rayl did have performance issues. Rayl does not allege that Jenkins "made up" the underlying problems that led to her reprimands. Secondly, Rayl has not produced any credible evidence that questions the motivation behind Decision One's reasons for reprimanding her. Even if the Court assumes that Jenkins made the alleged comment, this does not question whether Rayl's reprimands were honestly issued. "[T]he issue of pretext does not address the correctness or desirability of reasons offered for employment decisions. Rather, it addresses the issue of whether the employer honestly believes in the reasons it offers." McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 373 (7th Cir. 1992). Finally, given the record before it, the Court finds that a reasonable jury could not find that Rayl's performance issues were insufficient to motivate the reprimands. Based on the above, Rayl has not raised a genuine issue of material fact that she was performing to Decision One's legitimate expectations or that the reasons for her reprimands were a pretext for sex discrimination.
Accordingly, for the reasons stated above, summary judgment is GRANTED with respect to Rayl's sex discrimination claim.
C. Pendent State Claims
Decision One also seeks summary judgment with respect to Rayl's request for damages for injury to business reputation. Because the Court grants summary judgement on all claims, it need not decide the question of damages.
In addition to her Title VII claims, Rayl appears to be asserting claims for wrongful discharge and emotional distress under Indiana law. Yet this is not entirely clear. Nowhere does Rayl mention these claims other than in a single sentence in her amended complaint stating, "Plaintiff seeks to invoke the Court's ancillary jurisdiction over pendent state claims for wrongful discharge, and emotional distress as well." [Am. Compl., p. 1]. Although Rayl arguably has abandoned these claims, the Court nevertheless addresses each in turn.
1. Wrongful Discharge
"Historically, Indiana has recognized two basic forms of employment: (1) employment for a definite or ascertainable term; and (2) employment at-will. . . . If there is no definite or ascertainable term of employment, then the employment is at-will, and is presumptively terminable at any time, with or without cause, by either party." Orr v. Westminster Village North, Inc., 689 N.E.2d 712, 717 (Ind. 1997). It is uncontested that Rayl was an at-will employee. Decision One could, therefore, terminate her employment at any time, with or without cause, unless she fell into one of the rare exceptions to the at-will doctrine as defined by Indiana law. The Supreme Court of Indiana has recognized only three exceptions to the employment-at-will doctrine, none of which pertains to Rayl's situation. Id. at 718. Rayl has not argued that she fits one of the recognized exceptions, and the Court declines to do so for her. Summary judgment is, therefore GRANTED with respect to her wrongful discharge claim.
2. Emotional Distress
While Defendant has requested summary judgment on all claims, it did not specifically address this claim in its brief in support of its motion. Likewise, Plaintiff also failed to address this claim. Perhaps this is because Plaintiff abandoned this claim. Perhaps not. In any event, because Defendant's motion is for all claims, and in the interest of judicial economy, the Court chooses to retain jurisdiction over this claim and decide it on its merits.
Under Indiana law, intentional infliction of emotional distress is described as follows: "One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress." Cullison v. Medley, 570 N.E.2d 27, 31 (Ind. 1991), quoting Restatement (Second) of Torts § 46 (1965). "[C]onduct is extreme and outrageous: only 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." Powdertech, Inc. v. Joganic, 776 N.E.2d 1251, 1264 (Ind.Ct.App. 2002). This is a high bar to meet. Rayl does not allege, and the facts before the Court do not reveal, the requisite "extreme and outrageous" conduct. Therefore summary judgment is appropriate on this claim.
VI. Conclusion
Defendant's motion for summary judgment is granted with respect to all claims. Final judgment shall be entered accordingly.
So ordered.