WILLIAM C. LEE, District Judge.
This matter is before the court on a motion for summary judgment filed by the defendants Tom Kelley Buick Pontiac GMC, Inc. d/b/a Kelley Superstore and Tom Kelley Automotive Group, Inc., (collectively "the Kelley Defendants"), on December 4, 2009. The plaintiff, Cody Treat ("Mr.Treat"), filed his response on January 18, 2010, to which the Kelley Defendants replied on February 4, 2010.
Also before the court is a "Motion to Strike Evidentiary Submissions of Cody Treat" filed by the Kelley Defendants on February 4, 2010. Mr. Treat responded to the motion on February 18, 2010, to which the Kelley Defendants replied on February 25, 2010.
For the following reasons, the motion for summary judgment and the motion to strike will both be granted.
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). However, Rule 56(c) is not a requirement that the moving party negate his opponent's claim. Fitzpatrick v. Catholic Bishop of Chicago, 916 F.2d 1254, 1256 (7th Cir.1990). Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery, against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and in which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The standard for granting summary judgment mirrors the directed verdict standard under Rule 50(a), which requires the court to grant a directed verdict where there can be but one reasonable conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A scintilla of evidence in support of the non-moving party's position is not sufficient to successfully oppose summary judgment; "there must be evidence on which the jury could reasonably find for the plaintiff." Id. In re Matter of Wildman, 859 F.2d 553, 557 (7th Cir.1988); Klein v. Ryan, 847 F.2d 368, 374 (7th Cir.1988); Valentine v. Joliet Township High School District No. 204, 802 F.2d 981, 986 (7th Cir.1986). No genuine issue for trial exists "where the record as a whole could not lead a rational trier of fact to find for the nonmoving party." Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 322 (7th Cir.1992) (quoting Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).
Initially, Rule 56 requires the moving party to inform the court of the basis for the motion, and to identify those portions of the "pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, which demonstrate the absence of a genuine issue of material fact," Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The non-moving party may oppose the motion with any of the evidentiary materials listed in Rule 56(c), but reliance on the pleadings alone is not sufficient to withstand summary judgment. Goka v. Bobbitt, 862 F.2d 646, 649 (7th Cir.1988); Guenin v. Sendra Corp., 700 F.Supp. 973, 974 (N.D.Ind.1988); Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, 464 U.S. 960, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983).
Substantive law determines which facts are material; that is, which facts might affect the outcome of the suit under the governing law. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Irrelevant or unnecessary facts do not preclude summary judgment even when they are in dispute. Id. The issue of fact must be genuine. Fed. R.Civ.P. 56(c), (e). To establish a genuine issue of fact, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. 1348; First National Bank of Cicero v. Lewco Securities Corp., 860 F.2d 1407, 1411 (7th Cir.1988). The non-moving party must come forward with specific facts showing that there is a genuine issue for trial. Id. A summary judgment determination is essentially an inquiry as to "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-252, 106 S.Ct. 2505. Finally, the court notes that, "[i]t is a gratuitous cruelty to parties and their witnesses to put them through the emotional ordeal of a trial when the outcome is foreordained" and in such cases summary judgment is appropriate. Mason v. Continental Illinois Nat'l Bank, 704 F.2d 361, 367 (7th Cir.1983).
Defendant Tom Kelley Buick Pontiac GMC ("TKBPG") maintains a superstore of used cars, commonly referred to as the "Superstore." TKBPG is part of a group of separate dealerships, commonly known as the "Kelley Automotive Group" (hereinafter "Kelley"). Mr. Treat was employed by TKBPG from July 2006 until his termination on October 12, 2006. Mr. Treat believed TKBPG acted violation of his federal civil rights and state law, and thus he instituted the instant action
The Kelley Defendants are seeking summary judgment on all of Mr. Treat's remaining
In 2006, Kelley's owner and managers, including Tom Kelley, President and Owner of Kelley, Gary Thelen, Chief Financial Officer of Kelley, and Fred Grote, Kelley General Manager, decided to create a new department within TKBPG to help customers with special finance needs.
To open the department, based upon the recommendation of an industry colleague, Grote hired defendant Daniel Henderson ("Henderson") to manage the Special Finance Department in June 2006.
Johnson was hired as the Special Finance Department Funding Manager.
In the course of its operations, the Special Finance Department received sales leads from numerous sources. Focus, Inc. was one source, which sent most of its leads to the Superstore location.
On July 5, 2006, Mr. Treat received Kelley's Team Member Handbook, including Kelley's anti-harassment policy. In its policy, Kelley provides: "If you believe you are subjected to conduct or comments that violate this policy, you are encouraged to, and have a responsibility to immediately report these matters to your team leader or to the General Manager."
In approximately August, Henderson's office was moved to the TKBPG building, also on the Avenue of Autos. Kelley's administrative offices were also located in the TKBPG building. Tom Kelley, Thelen and Grote also had offices in the TKBPG building.
Mr. Treat alleges that, during his employment with TKBPG, Henderson, who was openly gay, made sexually explicit remarks to him, specifically: (1) making comments almost daily of a sexual nature in the presence of Mr. Treat and other Kelley employees about men that Henderson would like to be sexually involved with; (2) Henderson discussed gay bars in Fort Wayne and how he would meet guys, and his relationships with them; (3) Henderson stated that he was married to a woman at one time, but when it came to sex with a woman, he didn't know what he was supposed to do; (4) Henderson made comments about male customers being "flaming queers" or "flaming fagots"; and (5) continuously making comments and insinuations regarding his sexual orientation while at work, including employee meetings. In his deposition, Mr. Treat also testified that he heard Henderson refer to manager Jeff Johnson saying he wanted to "hit it one time," with a sexual connotation.
Mr. Treat claims that he told his mother, Ms. Treat, that he "didn't appreciate hearing about [Henderson's] lifestyle," but told no other Kelley manager.
In early October 2006, one of Treat's direct reports, Rob Pargeon, told Treat that he believed that sales leads coming from the DOLLAR system were being reassigned from Treat's employees to the Chevy store, and that this was impacting Pargeon's commissions.
On October 12, 2006, when Treat arrived at TKBPG in the morning, Henderson called Treat into Henderson's office. Henderson informed Treat that he "had already let [Ms. Treat] go and that he was not going to insult [Treat's] intelligence and that [Treat] was to leave too."
The Kelley Defendants have filed a motion for summary judgment on all of Mr. Treat's remaining claims and have also filed a motion to strike some of Mr. Treat's evidentiary submissions. The court will first consider the motion to strike.
Documentary evidence is admissible if authenticated "by evidence sufficient to support a finding that the matter in question is what the proponent claims." Fed. R.Evid. 901(a). The Kelley Defendants argue that the e-mail is not authenticated by anyone and cannot oppose summary judgment.
In response, Mr. Treat asserts that references to the e-mail must be considered because it contains "numerous authenticating elements demonstrating that the document is what it claims to be." (DE 133 at 2). As the Kelley Defendants point out, however, neither Ms. Treat nor Henderson have provided any sworn testimony that such an e-mail was either sent or received by either of them.
The Kelley Defendants argue that Mr. Treat's arguments not only fail to authenticate the e-mail and remove its hearsay problem, but expose its core relevance deficiency. In his efforts to keep the e-mail in evidence Mr. Treat states that the "e-mail is being offered to demonstrate that Henderson had knowledge of Cody Treat's complaints, via the e-mail sent from Jill Treat to Henderson." (DE 133 at 4). The Kelley Defendants argue that this is precisely what the e-mail does not do. That is, nowhere does Ms. Treat's evidence demonstrate that Henderson received any such e-mail, and such information is not within any Plaintiffs' personal knowledge. This court agrees with the Kelley Defendants that Mr. Treat's references to the unauthenticated e-mail constituted inadmissible hearsay and are conclusory and irrelevant. Thus the e-mail cannot be used to oppose summary judgment. Toro Co. v. Krouse, Kern & Co., Inc., 644 F.Supp. 986, 990 (N.D.Ind.1986).
The Kelley Defendants next argue that Ms. Treat's calculation for July, August and September 2006 pay, which is attached to her affidavit, and Mr. Treat's reference to the same, must be stricken. In his Affidavit, Mr. Treat states that based upon his comparison of Deal Recaps to the monthly report, he "learned that many of the Special Finance Department deals had not been included in calculating my wages."
The calculations in question were subject to a motion to strike in relation to the Kelley Defendants' motion for summary judgment on Ms. Treat's claims. In the order resolving that motion to strike, the court held that "[a]s there is no evidence that she has personal knowledge of how to calculate wages and commissions, this portion of her affidavit and the accompanying calculations she has presented will be stricken." (Order at p. 23). For the reasons detailed in the prior order, the present
The court will now address the Kelley Defendants' motion for summary judgment. Mr. Treat claims that he engaged in statutorily protected activity when he reported to Ms. Treat that he was displeased with how Henderson was distributing leads unequally between the Kelley stores, and that he believed the reason for the disparity was that Henderson was sexually attracted to a manager at another Kelley store.
Mr. Treat must prove retaliation by the direct or indirect method. Under the direct method, Mr. Treat must show: (1) statutorily protected activity; (2) materially adverse action taken by the employer; and (3) a causal connection between the two. Amrhein v. Health Care Serv. Corp., 546 F.3d 854, 858 (7th Cir.2008). Under the indirect method, Mr. Treat must show: (1) he engaged in a statutorily protected activity; (2) he met his employer's legitimate expectations; (3) he suffered an adverse employment action; and (4) he was treated less favorably than similarly situated employees who did not engage in statutorily protected activity. Id. at 859.
Under either method, a key component of a retaliation claim is the decisionmaker's knowledge of the employee's protected activity. The Kelley Defendants argue that Mr. Treat's evidence falls fatally short. Mr. Treat admits that he never talked to Henderson about his alleged complaints, and is relying upon alleged complaints made by his mother to Henderson.
Ms. Treat testified that she talked to Henderson about more leads going to the Chevy store than the Superstore, but Ms. Treat did not indicate that there was any discriminatory conduct at issue.
It is clear that even considering Ms. Treat's description of her conversation with Henderson about her concerns, such statements fail to indicate a connection to a protected class. See Tomanovich v. City of Indianapolis, 457 F.3d 656, 663 (7th Cir.2006) ("Merely complaining in general terms of discrimination or harassment, without indicating a connection to a protected class or providing facts sufficient to create that inference, is insufficient."); Miller v. American Family Mut. Ins. Co., 203 F.3d 997, 1008 (7th Cir.2000) ("An employee can honestly believe she is the object of discrimination, but if she never mentions it, a claim of retaliation is not implicated, for an employer cannot retaliate when it is unaware of any complaints."). This court agrees with the Kelley Defendants that there is no evidence that Henderson was aware of any statutorily protected activity by Mr. Treat when he made the decision to terminate Mr. Treat's employment. As the Kelley Defendants argue, even if Henderson understood that Mr. Treat was complaining (through his mother) that he was not receiving leads because of his sex
In addition, it is undisputed that Mr. Treat's supervisors, Henderson and Ms. Treat, did not believe that Mr. Treat was an effective manager.
Accordingly, for all the reasons recited above, the court will grant summary judgment on the retaliation claim.
Next, the court will discuss Mr. Treat's negligent retention and supervision claim. To bring a cause of action for negligent hiring and retention, Mr. Treat must show that Kelley hired and retained Henderson in its employ despite knowing that Henderson was in the "habit of misconducting [him]self in a manner dangerous to others." Briggs v. Finley, 631 N.E.2d 959, 967 (Ind.Ct.App.1994). During Henderson's deposition, Mr. Treat's counsel elicited testimony regarding Henderson's prior criminal convictions for obtaining property by false pretenses and credit card abuse. The Kelley Defendants claim that there is no evidence of any prior dangerous sex-related conduct by Henderson, nor any evidence that they were aware of any such conduct.
Indiana recognizes the tort of negligent retention of an employee and has adopted the Restatement (Second) of Torts as the standard outlining liability for the tort. Sandage v. Board of Commissioners of Vanderburgh County, 897 N.E.2d 507, 511-12 (Ind.Ct.App.2008). Section 317 of the Restatement provides that a master is "under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm," if (1) the servant is on the master's premises or using the master's chattel and (2) the master knows or has reason to know that he can control his servant and knows or should know of the necessity and opportunity for exercising such control. Restatement (Second) of Torts § 317 (1965).
The Kelley Defendants argue that the sex-related remarks such as those alleged by Mr. Treat cannot be considered to have created a reasonable risk of "bodily harm" for purposes of this cause of action. This court recently held that a supervisor's statement to a subordinate employee suggesting that the employee sleep with the supervisor's ex-husband over a period of three days was not "dangerous" within the meaning of § 317. See McClain v. TP Orthodontics, 2009 WL 2381915 (N.D.Ind.).
The Kelley Defendants further argue that even if Henderson's alleged comments created a reasonable risk of bodily harm they had no duty to Mr. Treat regarding such alleged comments. Specifically, "[i]mposition of a duty is limited to those instances where a reasonably foreseeable victim is injured by a reasonably foreseeable harm." Id. (quoting Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind.1991)). The Kelley Defendants contend that Mr. Treat does not, and cannot, allege that the sex-related conduct by Henderson was "reasonably
Mr. Treat argues that this case is similar to Grzan v. Charter Hosp. of Northwest Ind., 702 N.E.2d 786, 793 (Ind.Ct.App. 1998). In Grzan, it was rumored that an employee was engaging in an inappropriate sexual relationship with a patient. The affidavits of two employees confirmed this rumor, and the court found such "evidence to be sufficient to raise a question of fact about whether [the employer] knew or should have known of [the employee's] improper sexual conduct with Grzan." Id.
Mr. Treat acknowledges that he did not personally inform his employer of Henderson's propensity for sexually inappropriate conduct, but argues that his conduct was pervasive enough that it was common knowledge among Kelley employees. Mr. Treat cites to the deposition testimony of Gigli, a non-management employee who was around Henderson after Mr. Treat was terminated, in his attempt to show that his employer's managers were aware of Henderson's conduct during Mr. Treat's employment. Clearly, Mr. Treat's evidence misses the mark and cannot establish foreseeability.
Likewise, Grzan does not provide support for Mr. Treat's claims. Ms. Grzan, unlike Mr. Treat was subjected to actual alleged "bodily harm" by a mental health counselor at Charter Hospital in the form of hugging, kissing, fondling and oral sex, and the court held there was a question of fact whether the Hospital had information that an employee was engaging in an inappropriate sexual relationship with a patient. Id. at 789, 793. In the present case, it is abundantly clear that Mr. Treat was not subject to any sort of "bodily harm" and he does not even make any allegations of that sort and, moreover, there is no evidence that the Kelley Defendants knew of Henderson's propensity to act inappropriately during the time that Mr. Treat was employed. Accordingly, summary judgment will be granted in favor of the Kelley Defendants on Mr. Treat's negligent retention and supervision claim.
The next issue before the court concerns Mr. Treat's Indiana Wage Claim. In Indiana, an employee who seeks to bring a claim for wages under state law must proceed via the Indiana Wage Payment Statute (IC 22-2-5 et seq.)
Mr. Treat takes the position that the employment status of an employee at the time a wage claim arises determines if the employee has a claim under the Indiana Wage Payment Statute or the Indiana Wage Claim Statute. Thus, he argues that since he was employed at the time his wage claim accrued, he can maintain his present suit under the Wage Payment Statute. Mr. Treat relies on Harney v. Speedway SuperAmerica, LLC, 2007 WL 2710824 (S.D.Ind.2007), aff'd on other grounds, 526 F.3d 1099 (7th Cir.2008), to support his position.
In Steele, cited by the Kelley Defendants, the Seventh Circuit held that:
In Harney, cited by Mr. Treat, the District Court for the Southern District of Indiana stated:
Because some of the claims of the discharged plaintiffs proceeded under the Wage Payment Statute instead of the Wage Claims Statute, Mr. Treat concludes that his wage claims should also be governed by the Wage Payment Statute. While this court believes that the Kelley Defendants' interpretation of the cases is more correct, as the cases clearly indicate that it is the status of the claimant that determines which statute applies, the court notes that even applying Harney as interpreted by Mr. Treat does not lead the court to his conclusion. That is, in Harney, the court held that the wage claims involving amounts that were not paid prior to the employees' discharge were governed by the Wage Claims Statute. It is clear that Mr. Treat is seeking to recover amounts that he was not paid (and is not merely arguing that he was not paid within the statutory ten-day period), and thus under any interpretation of the statutes, it is obvious that he should have proceeded under the Wage Claims Statute.
Mr. Treat has also cited to Anderson v. Northeast Otolaryngology, P.C., 2006 WL 2331142 (S.D.Ind.), for the proposition that a wage claim accrues on the date an employee is not paid the amounts due. The issue in Anderson was whether the plaintiff had filed her wage claims within the statute of limitations, and the Magistrate Judge held that "each pay period triggers a separate cause of action." Mr. Treat is presumably arguing that since his claims arose while he was still an employee, then the Wage Payment Statute applies. However, this interpretation would render the Wage Claims Statute practically useless, as nearly all claims for wages arise while a person is employed. The Magistrate Judge in Anderson was not called upon to decide which wage statute applied, and this court will not extend the holding in Anderson to the facts of this case. Rather, this court will follow the Seventh Circuit holding in Steele that the determination of which statute applies depends upon the status of the plaintiff.
Under the Steele analysis, the Wage Claims Statute applies to Mr. Treat's wage claims. As the Wage Claims Statute requires that he file a claim with the IDOL, and he did not do so, the court will grant summary judgment in favor of the Kelley Defendants on his wage claims.
The Kelley Defendants next argue that Mr. Treat's retaliatory discharge
The Kelley Defendants thus argue that Mr. Treat's wrongful discharge claim does not create any liability. See Bregin v. Liquidebt Sys., Inc., 2008 WL 150611 (N.D.Ind.) (recognizing that Indiana courts do not extend the wrongful discharge exception to the employment-at-will doctrine to employees whose employment is terminated for whistle-blowing or reporting their employer's misdeeds). The Kelley Defendants conclude that even if Mr. Treat had reported Henderson's alleged unethical conduct and been terminated for that reason, he would not have a cause of action for wrongful discharge.
Mr. Treat relies on McClanahan v. Remington Freight Lines, 517 N.E.2d 390 (Ind.1988), in which an employee claimed he was wrongly discharged for fulfilling a statutory duty and the Indiana Supreme Court held he had stated a cause of action. However, the actual holding in McClanahan was that the employee "stated a cause of action when he alleged he was wrongfully discharged for refusing to commit an illegal act for which he would have been personally liable."
It is clear to this court that Mr. Treat is not proceeding as someone who was fired for refusing to commit an illegal act. Accordingly, Mr. Treat's common law claim for wrongful discharge cannot withstand summary judgment.
The final issue presented by the Kelley Defendants' motion for summary judgment is, assuming that any of Mr. Treat's claims were to survive summary judgment, whether after-acquired evidence bars his reinstatement, front pay and certain back pay claims. In the seminal case on the after-acquired evidence doctrine, McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995), the United States Supreme Court held that in "determining appropriate remedial action" for alleged discrimination, "the employee's wrongdoing becomes relevant not to punish the employee ... but to take due account of the lawful prerogatives of the employer in the usual course of its business and the corresponding equities that it has arising from the employee's wrongdoing." Id. at 361, 115 S.Ct. 879. In McKennon, the Court concluded that, as a general rule, neither reinstatement nor front pay is an appropriate remedy in cases of employee wrongdoing "that would lead to legitimate discharge." Id. at 361-62, 115 S.Ct. 879. With respect to back pay, the Court held that the "beginning point" of a formulation of any back pay award should be a calculation from the date of the allegedly unlawful discharge to the date the new information was discovered. Id. at 362, 115 S.Ct. 879.
The Kelley Defendants also assert that Mr. Treat knew that the anti-harassment policy required him, as a manager, to immediately report a potential infraction to senior management or the human resources specialist. Mr. Treat also knew that failing to report a violation of which he was aware would subject him to disciplinary action, including discharge. Mr. Treat did not report any complaints to senior management or the human resources specialist. As such, the Kelley Defendants were not aware of Mr. Treat's failure until TKBPG received the EEOC charges from Plaintiffs in this case.
Therefore, the Kelley Defendants claim that they are entitled to summary judgment on any claim by Mr. Treat for reinstatement, front pay or back pay after the date of his EEOC charge against TKBPG.
Mr. Treat argues that the Kelley Defendants have not submitted any evidence that his alleged wrongdoing was of such severity that he would have been terminated. He claims that the Kelley Defendants must show by a preponderance of the evidence that the after-acquired evidence would have resulted in his termination. Mr. Treat relies on Sheehan v. Donlen Corp., 173 F.3d 1039 (7th Cir.1999). In Sheehan, however, it was undisputed that no one at Dolen had ever been fired for falsifying a resume, and there was also an inference that other falsification had occurred. Id. at 1047. In the present case, the Kelley Defendants have uncontroverted evidence that Mr. Treat violated the Information Safeguarding Policy and the reporting requirements of the Anti-Harassment Policy. Further, Mr. Treat has not produced any evidence that such violations are not grounds for termination and has not produced evidence of any employee who was not terminated for similar violations. Accordingly, it is clear that the Kelley Defendants have met their burden of demonstrating the applicability of the after-acquired evidence defense and, even if any of Mr. Treat's claims had survived, he would not be entitled to reinstatement, front pay or back pay after the date of his EEOC charge.
On the basis of the foregoing, the Kelley Defendants' motion for summary judgment [DE 97] and the Kelley Defendants' motion to strike [DE 127] are both hereby GRANTED.
