Goetzke, David v. Ferro Corporation ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-1588
DAVID GOETZKE,
Plaintiff-Appellant,
v.
FERRO CORPORATION and CRAWFORD & COMPANY,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 99 C 398--James T. Moody, Judge.
ARGUED OCTOBER 22, 2001--DECIDED February 6, 2002
Before FLAUM, Chief Judge, and RIPPLE and
WILLIAMS, Circuit Judges.
RIPPLE, Circuit Judge. Ferro Corporation
("Ferro") terminated David Goetzke in
August 1997 on the ground that he had
defrauded it by exaggerating the extent
of a work-related injury. In response to
his termination, Mr. Goetzke filed this
multi-count action in state court against
Ferro and Crawford & Company
("Crawford"), a third-party administrator
retained through Ferro’s insurance
carrier to administer worker’s
compensation claims brought by Ferro
employees. In Count I, Mr. Goetzke
alleged that Ferro had terminated him in
retaliation for filing a worker’s
compensation claim. Count II of the
complaint asserted that Crawford had
tortiously interfered in Mr. Goetzke’s
employment relationship with Ferro. In
Count III, Mr. Goetzke alleged that Ferro
and Crawford had conspired to end his
employment. After removal of the case to
the federal system, the district court
granted summary judgment to Ferro and
Crawford on all counts. For the reasons
set forth in the following opinion, we
affirm the judgment of the district
court.
I
BACKGROUND
A. Facts
On August 11, 1996, Mr. Goetzke
sustained a work-related injury to his
lower back while employed at Kiel
Chemical, a subsidiary of Ferro
Corporation. Upon learning of Mr.
Goetzke’s injury, Ferro officials
promptly filed a worker’s compensation
claim on his behalf. Over the next year,
Mr. Goetzke spent extended periods on
medical leave from Ferro as a result of
the injury.
In the weeks following the injury, the
company placed Mr. Goetzke on "light
duty"--assigning him jobs that did not
require heavy lifting. Initially, the
light duty required Mr. Goetzke to train
a fellow employee. Although these
sessions did not require any lifting, the
assignment required Mr. Goetzke to stand
and to walk for substantial portions of a
twelve-hour shift. Roughly six days into
this job, Mr. Goetzke informed his
foreman that the length of the shifts and
nature of the assignment aggravated his
back injury. After Mr. Goetzke consulted
with a physician, Ferro moved him from
"light duty" to "sedentary duty"--a desk
position. The new assignment required Mr.
Goetzke to work only an eight-hour shift.
During September and mid-October, Mr.
Goetzke spent several days on medical
leave. When Mr. Goetzke returned from an
excused absence in October 1996, Steve
Hartford, the company’s safety training
supervisor, contended that he smelled
alcohol on Mr. Goetzke. Ferro therefore
ordered Mr. Goetzke to undergo an alcohol
test. The test, however, returned
negative, and Ferro never pursued this
incident any further.
When his injury failed to improve, Mr.
Goetzke returned to medical leave in
November 1997. Over the next ten months,
Mr. Goetzke clashed over his medical care
with his doctors and Crawford. Mr.
Goetzke particularly expressed
frustration with Betty Foy, his case
manager from Crawford. Mr. Goetzke
believed that Foy often clandestinely
overruled his physicians’ prescribed
course of treatment. As a case manager,
Foy not only monitored Mr. Goetzke’s
treatment but also served as an
information conduit between his
physicians and Crawford’s claims
adjustor. For instance, Foy accompanied
Mr. Goetzke to his doctor’s appointments.
At each appointment, the responsibility
fell to her to clarify with the
physicians when Mr. Goetzke could return
to work. In turn, she relayed this
information to Crawford’s adjustor and
frequently to Ferro’s Steve Hartford.
After physical therapy and injections
failed to alleviate his pain, Mr. Goetzke
underwent back surgery in March 1997. Foy
informed Hartford that the recovery
period for this procedure generally
lasted three to four months. Two months
into his recovery, Mr. Goetzke still
complained of back pains to his
physician. Specifically, during a
doctor’s appointment in May, Mr. Goetzke
informed his physician that he had not
been the same since he had sneezed and
then heard a popping noise in his back
soon after the surgery.
Upon receiving this information, Steve
Hartford contacted Yadwiga Duncan, the
Crawford claims adjustor handling Mr.
Goetzke’s file. Hartford believed that
Mr. Goetzke was now exaggerating his
symptoms and requested that Crawford hire
an investigator to conduct surveillance
of Mr. Goetzke. Pursuant to Hartford’s
request, Crawford employed an
investigator who recorded Mr. Goetzke for
two days in June 1997. The surveillance
recorded Mr. Goetzke in a variety of
activities including carrying and loading
groceries into his vehicle. Crawford for
warded the tape to Hartford.
Meanwhile, concluding that Mr. Goetzke
had reached a plateau in his
recovery,/1 his physician, in
consultation with Foy, scheduled a
functional capacity evaluation ("FCE")
for him. Conducted by an independent
physician evaluator, the FCE is a battery
of physical tests that assesses whether
an injured employee is able to return to
work and in what capacity. Hartford
requested that an investigator conduct
surveillance of Mr. Goetzke the day
before the FCE. This surveillance,
conducted in mid-July, captured Mr.
Goetzke in a variety of activities. In
particular, Mr. Goetzke worked on his
car--leaning under the hood for several
minutes. When the hood failed to close
properly, Mr. Goetzke repeatedly pressed
down on it with both hands. The July tape
also pictures Mr. Goetzke stretching
across the front seat of his truck while
his feet dangled awkwardly from the
vehicle. The tape was forwarded to Ferro.
Soon after, the evaluator performed the
FCE and sent the results to Mr. Goetzke,
Ferro, Crawford and Betty Foy. The cover
letter of the FCE stated "Mr. Goetzke did
magnify his symptoms and his ability may
be greater than what the data on the test
indicates." Dep. V.3, Ex.4. In addition,
the summary report noted thirteen
inconsistencies between Mr. Goetzke’s
stated symptoms and his conduct during
the evaluation. The evaluator assigned
Mr. Goetzke a "6" on a scale of "0-7" on
the Waddell Symptom Magnification
Evaluation./2 One line of the full
report, however, noted
[I]t is my opinion that [Mr. Goetzke] is
UNABLE to perform work at the Medium
level . . . . HOWEVER, I DO BELIEVE THE
CLIENT IS MAGNIFYING THE PAIN SYMPTOMS IN
AN UNCONSCIOUS EFFORT TO CONTROL THE
ENVIRONMENT.
Dep. V.3, Ex.4. Although the report
indicated that Mr. Goetzke was limited in
the range of tasks he could perform, the
FCE suggested that he be placed in a work
hardening program to restore his
capabilities. In conclusion, the report
stated that "if [Mr. Goetzke] responds
positively and improves quickly, I WOULD
release the client to return to work
sooner than the prescribed period." Dep.
V.3, Ex.4 (emphasis in original).
Accordingly, Mr. Goetzke’s physician
scheduled his patient for work hardening
in mid-August.
In late July, approximately one week
after receiving the results of the FCE,
Mr. Goetzke filed an application for
assistance with the Indiana Industrial
Board./3 In this letter, Mr. Goetzke
questioned the quality of the care that
he received. More precisely, he alleged
that Foy interfered with his doctor’s
orders and failed to stay abreast of his
test results. Finally, Mr. Goetzke
challenged the FCE as "biased" and
"inaccurat[e]." R.26, Ex.M. The letter
made no reference to Ferro. Crawford
learned of Mr. Goetzke’s application for
assistance on August 13, 1997. It relayed
this information to Hartford at Ferro.
After completing his work hardening in
mid-August, Mr. Goetzke returned to work
on light duty pursuant to his doctor’s
orders. However, upon Mr. Goetzke’s
arrival at work, Ferro officials informed
him that he was being terminated for
defrauding the company. According to com
pany officials, the contents of the
videotape and Mr. Goetzke’s FCE had
warranted this action.
B. District Court Proceedings
1.
After his termination, Mr. Goetzke filed
this action against Ferro and Crawford in
Indiana state court. The complaint, which
contained multiple counts, alleged that:
Ferro discharged Mr. Goetzke in
retaliation for filing a worker’s
compensation claim; Crawford had
tortiously interfered in Mr. Goetzke’s
employment relationship with Ferro; and
Ferro and Crawford had conspired to end
Mr. Goetzke’s employment. Invoking the
diversity jurisdiction of the district
court, Ferro and Crawford removed the
case to the federal system.
Once before the district court, Ferro
and Crawford moved for summary judgment
on all counts. Ferro contended that,
under Indiana law, Mr. Goetzke, an
employee covered by a collective
bargaining agreement, could not raise a
retaliatory discharge claim. In the
alternative, it submitted that Mr.
Goetzke could neither demonstrate a
causal connection between his termination
and the filing of a worker’s compensation
claim nor demonstrate the pretextual
nature of Ferro’s proffered reason for
his termination. With regard to the
tortious interference claim, Crawford
contended that, pursuant to an Indiana
exclusivity statute, the district court
lacked subject matter jurisdiction over
this portion of Mr. Goetzke’s complaint.
In any event, according to Crawford, Mr.
Goetzke had failed to establish the
elements of the tort of tortious
interference. Finally, both Ferro and
Crawford maintained that the record
contained no evidence that indicated a
civil conspiracy.
2.
The district court entered summary
judgment for Ferro and Crawford on all
counts. As a threshold matter, the
district court rejected Ferro’s
contention that Mr. Goetzke could not
maintain a retaliatory discharge action
under Indiana law. Specifically, it
concluded that a decision of the Court of
Appeals of Indiana had expressly allowed
employees covered by collective
bargaining agreements to bring
retaliatory discharge claims. Turning to
the substantive aspects of Mr. Goetzke’s
complaint, the court found that he had
failed to establish a causal nexus
between his termination and the filing of
his worker’s compensation claim.
According to the district court, Ferro
had terminated Mr. Goetzke solely on its
belief that he defrauded the company.
In the view of the district court, a
paucity of evidence existed with regard
to the remaining claims. Mr. Goetzke
could not demonstrate that Crawford and
Ferro had engaged in an unlawful
activity--namely retaliatory discharge--
thereby foreclosing the civil conspiracy
claim. After rejecting Crawford’s
contention that federal courts lacked
subject matter jurisdiction over the
tortious interference claim, the district
court concluded that Mr. Goetzke had
failed to prove the elements of the tort.
At a minimum, no evidence existed to
prove that Crawford induced Ferro to
terminate Mr. Goetzke.
II
DISCUSSION
A.
We must first address Ferro’s contention
that Indiana law does not permit Mr.
Goetzke to maintain a Frampton
action/4--a claim alleging that an
employer discharged its em-ployee for
filing a worker’s compensation claim.
More precisely, Ferro submits that a
Frampton claim is unavailable to former
employees such as Mr. Goetzke who were
covered by a collective bargaining
agreement at the time of their
termination. The precise scope of a
Frampton action is a question of Indiana
law. We have stated that, when
"resolution of [an] issue depends on
[state] law, we must apply the law that
would be applied in this context by the
[state] Supreme Court." Home Value, Inc.
v. Pep Boys, 213 F.3d 960, 963 (7th Cir.
2000) (quoting McGeshick v. Choucair, 9
F.3d 1229, 1232 (7th Cir. 1993)). If the
state supreme court has not addressed the
matter, this court "generally
treat[s]decisions by the state’s
intermediate appellate courts as
authoritative unless there is a
compelling reason to doubt that [those]
courts have got the law right." Home
Value, Inc., 213 F.3d at 963 (internal
quotations and citations omitted).
Because the Supreme Court of Indiana has
not addressed this precise issue, we turn
to Indiana’s intermediate appellate
courts for guidance. In Bentz Metal
Products Co., Inc. v. Stephans, 657
N.E.2d 1245 (Ind. Ct. App. 1995), the
Court of Appeals of Indiana considered
and rejected Ferro’s narrow construction
of the Frampton action. Specifically, in
Bentz, the court concluded that employees
covered by collective bargaining
agreements at the time of their discharge
may maintain Frampton claims. See id. at
1247-48. Unless compelling evidence casts
doubt on the Bentz ruling, we treat it as
authoritative concerning the scope of the
Frampton action.
Ferro correctly notes that, in a
diversity case decided prior to Bentz,
this court reached an opposite conclusion
concerning the availability of a Frampton
action to this class of workers. See
Vantine v. Elkhart Brass Mfg. Co., Inc.,
762 F.2d 511, 517 (7th Cir. 1985). In
Vantine, we emphasized that collective
bargaining agreements adequately
protected the goals and policies
underlying Indiana’s worker’s
compensation scheme; as such, we
concluded that a Frampton action was not
available to employees covered by
collective bargaining agreements. See
Vantine, 762 F.2d at 517. However, at the
time of the Vantine decision, the Indiana
courts had not addressed the question
raised in that case.
Over a decade later, we now have
guidance from the Indiana courts
concerning the availability of the
Frampton action to employees covered by a
collective bargaining agreement. In
Bentz, the Court of Appeals of
Indianaexpressly declined to follow our
decision in Vantine. See Bentz Metal
Prod. Co., Inc., 657 N.E.2d at 1248 n.2.
The Indiana appellate court noted that we
had not considered "Indiana precedent
regarding the employment-at-will
doctrine" when reaching our conclusion.
See id. Just as importantly, it noted
that, at the time Vantine was decided, we
did not have the benefit of the holding
of the Supreme Court of the United States
in Lingle v. Norge Division of Magic
Chef, Inc., 486 U.S. 399 (1988). In
Lingle, the Supreme Court held that an
employee protected by a collective
bargaining agreement that provides the
employee with a contractual remedy for
discharge without just cause may
nevertheless seek a state remedy for
retaliatory discharge for exercising
rights under the state worker’s
compensation statute. See Lingle, 486
U.S. at 413. Given these developments, we
believe that the proper course is for
this court to follow the decision of the
Court of Appeals of Indiana in Bentz.
Therefore, Mr. Goetzke may maintain a
Frampton action even though he was
covered by a collective bargaining
agreement at the time of his
termination./5
B.
1.
We turn now to an examination of whether
the district court properly granted
summary judgment on Mr. Goetzke’s
Frampton claim. We review de novo the
district court’s grant of summary
judgment. See Thomas v. Pearle Vision,
Inc., 251 F.3d 1132, 1136 (7th Cir.
2001). Summary judgment is appropriate
"if the pleadings, depositions, answers
to interrogatories, and admissions on
file, together with 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);
see Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986). The court’s function
is not to weigh the evidence but merely
to determine if "there is a genuine issue
for trial." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986). We must
ask whether "there are genuine factual
issues that can properly be resolved only
by a finder of fact because they may
reasonably be resolved in favor of either
party." Id. at 250. In assessing whether
a genuine issue of material fact exists,
we must construe all facts and draw all
reasonable inferences in the light most
favorable to the nonmoving party. See id.
at 255; Basith v. Cook County, 241 F.3d
919, 926 (7th Cir. 2001).
2.
To maintain a Frampton action, the
plaintiff must establish a causal nexus
between his termination and the filing of
a worker’s compensation claim. See Hamann
v. Gates Chevrolet, Inc., 910 F.2d 1417,
1420 (7th Cir. 1990); Markley Enter.,
Inc. v. Grover, 716 N.E.2d 559, 565 (Ind.
Ct. App. 1999). The plaintiff must submit
either direct or indirect evidence to
satisfy this burden. See Markley Enter.,
Inc., 716 N.E.2d at 565. Because direct
evidence frequently does not exist in
these cases, a party usually must rely on
indirect methods of proof. In particular,
when considered with other circumstances,
the temporal proximity between
termination and filing of the worker’s
compensation claim may satisfy the
plaintiff’s burden in some cases. See
Hamann, 910 F.2d at 1420. In addition,
retaliation may be inferred if the
plaintiff demonstrates that the
employer’s proffered lawful reason for
the termination is "patently inconsistent
with the evidence before the court."
Markley Enter., Inc., 716 N.E.2d at 565.
Mr. Goetzke contends that a reasonable
jury could determine that Ferro
discharged him in retaliation for
exercising his rights under Indiana’s
worker’s compensation scheme. In
particular, he submits that a jury may
infer Ferro’s retaliatory intent based
upon the close temporal proximity between
his termination and his request for
assistance from Indiana’s industrial
board. Ferro responds that it had a
legitimate reason for terminating Mr.
Goetzke--its belief he was defrauding the
company--thereby negating any inference
of retaliatory intent. Mr. Goetzke,
however, contends that he has submitted
sufficient facts to demonstrate the
pretextual nature of Ferro’s asserted
reasons for his termination.
As an initial matter, we note that, in
his application for assistance, Mr.
Goetzke does not mention any grievances
against Ferro. To the contrary, the
request contains numerous complaints
relating only to Mr. Goetzke’s medical
care and his desire for additional
treatment; the application largely
objects to the conduct of his doctors and
his case manager, Foy. Mr. Goetzke,
however, contends that, if the ombudsman
had ordered further treatment, the costs
would have fallen on Ferro rather than
its insurance carrier or Crawford. We
note that Mr. Goetzke never sets forth
within any specificity why this
conclusion is necessarily true. Although
he asks us to assume that Ferro’s
insurance carrier would pass the costs
along to its insured in the form of
higher premiums at some point in time,
reaching this conclusion on this record
is speculative at best. Mr. Goetzke has
failed to adduce evidence in support of
his contention.
We next turn to Mr. Goetzke’s temporal
proximity arguments. We conclude that the
temporal proximity between the filing of
Mr. Goetzke’s original worker’s
compensation claim and his termination
does not create an inference of
retaliation. One year lapsed between Mr.
Goetzke’s termination and Ferro’s
decision to file a worker’s compensation
claim on his behalf. Although the Indiana
courts have indicated that a six-month
time lapse coupled with additional
evidence of retaliation will defeat a
motion for summary judgment, see, e.g.,
Pepkowski v. Life of Ind. Ins. Co., 535
N.E.2d 1164, 1167-68 (Ind. 1989), they
have not indicated whether a longer
period of time would prove fatal to a
plaintiff’s Frampton claim. In analogous
Title VII cases, we have concluded time
lapses similar to the one present in this
case, without more, fail to create an
inference of retaliation./6 See Paluck
v. Gooding Rubber Co., 221 F.3d 1003,
1010 (7th Cir. 2000) (twelve-month time
lapse fails to create an inference of
retaliation). In fact, we have stated
that "substantial time lapse between
protected activity and the adverse action
is counter-evidence of any causal connec
tion." Johnson v. Univ. of Wisconsin-Eau
Claire, 70 F.3d 469, 480 (7th Cir. 1995).
Analogizing Mr. Goetzke’s case to this
body of law, the timing between his
termination and the filing of the
original worker’s compensation claim
provides no indication of retaliatory
intent.
Mr. Goetzke instead stresses the close
temporal proximity, roughly thirty days,
between his termination and his petition
for assistance from Indiana’s industrial
board. According to Mr. Goetzke, this
fact creates a strong inference of
Ferro’s retaliatory intent. Although
Ferro contends that its decision to
terminate Mr. Goetzke occurred before it
learned of his application for
assistance, the record does not support
unequivocally this contention. We have
reviewed the deposition testimony of both
Hartford and Ferro’s director of human
resources. Neither individual could state
definitively that the discharge decision
preceded Mr. Goetzke’s request for
assistance from the industrial board.
Because we cannot say with certainty that
the termination decision predated the
application for assistance, we turn to
Ferro’s contention that it had a
legitimate, non-retaliatory reason for
discharging Mr. Goetzke.
Before Mr. Goetzke filed his application
for assistance, Ferro possessed evidence-
-the FCE and surveillance tapes--that
tended to show that he was malingering.
In particular, the videotapes capture Mr.
Goetzke in a variety of activities:
bending at the waist for several minutes
while working on his car, pushing down
forcefully and repeatedly on the hood of
his car, and laying across the front seat
of his vehicle while his feet dangled
awkwardly outside of the truck. Mr.
Goetzke emphasizes that his conduct on
the videotapes is not inconsistent wholly
with the physical limitations noted on
his FCE. A layman, however, could
interpret fairly Mr. Goetzke’s physical
capabilities as seen on the videotape as
beyond those described in the FCE.
In reaching its conclusion that Mr.
Goetzke was exaggerating the extent of
his injury, Ferro also relied on the con
tents of the FCE. At several points, the
report notes that Mr. Goetzke exaggerated
his symptoms. Indeed, the cover letter of
the FCE states in plain, simple terms
that "Mr. Goetzke did magnify his
symptoms and his ability may be greater
than what the data on the test
indicates." Dep. V.3, Ex.4. Another
portion of the report notes thirteen
apparent inconsistencies between Mr.
Goetzke’s professed and actual physical
capabilities. One portion of the report
does indicate that Mr. Goetzke
"unconsciously" failed to use full
efforts during the FCE./7 The Ferro
officials responsible for reviewing the
FCE testified that they could not
remember reading this latter portion of
the report, and, further testified that
even if they had read it, this language
would not have altered their assessment
of Mr. Goetzke in light of the other
portions of the document. Arguably, Ferro
officials may have been negligent in
failing to read the entire report or in
relying solely upon those portions of the
FCE that they considered unequivocal.
However, Indiana law does not render a
company liable for retaliatory discharge
because it used poor judgment. Rather, a
Frampton action may only succeed upon
proof of the employer’s retaliatory
intent. Ferro’s failure to read the
entire report may indicate negligence on
the company’s part, but it does not
indicate pretext.
Mr. Goetzke raises several other
contentions in an effort to demonstrate
the pretextual nature of Ferro’s asserted
rationale for his termination. Some
evidence exists that Foy, the nurse
managing Mr. Goetzke’s case, believed
that Mr. Goetzke neither had attempted to
defraud Ferro nor was malingering. Mr.
Goetzke also alleges that he was on pain
medication during the periods in which he
was videotaped. He submits that the
medication accounts for any increased
physical activity depicted on the
videotapes. The contentions concerning
both Foy and Mr. Goetzke’s medicated
state suffer from a common deficiency;
Ferro officials apparently knew of
neither piece of evidence at the time
they terminated Mr. Goetzke. In
particular, the record provides no
indication that Foy ever communicated her
views to Ferro officials prior to Mr.
Goetzke’s termination. Similarly, Mr.
Goetzke has offered no evidence that
indicates Ferro officials were aware he
was on pain medication at the time the
surveillance occurred. In the context of
Title VII cases, this court has stated
that "the question is not whether [the
evaluation was] right but whether the
employer’s description . . . is honest."
Gustovich v. AT&T Communications, Inc.,
972 F.2d 845, 848 (7th Cir. 1992).
Similarly, this evidence attempts to
challenge the accuracy, as opposed to the
honesty, of Ferro’s asserted reasons for
discharging Mr. Goetzke. This is an
insufficient basis to demonstrate the
pretextual nature of Ferro’s proffered
reasons for his termination./8
Finally, Mr. Goetzke notes several other
incidents that he contends create an
inference of Ferro’s retaliatory intent.
First, he points to the October 1996
incident in which Ferro tested him for
alcohol consumption. Ferro ordered the
test only after a supervisor thought he
smelled alcohol on Mr. Goetzke. Mr.
Goetzke tested negative, and, notably,
Ferro never ordered him to take another
alcohol test and took no additional
adverse action against him as a result of
this incident. Simply put, this evidence
is not probative of his retaliatory
discharge claim.
Mr. Goetzke also contends that, in
retaliation for filing his worker’s
compensation claim, Ferro transferred him
during September 1996 to a position that
required him to work twelve-hour shifts.
As a result of his injury, Ferro
transferred Mr. Goetzke to a light duty
position, and this position initially
entailed a twelve-hour shift. This
assignment, however, required less
strenuous activity than did his original
position with Ferro. Moreover, once Mr.
Goetzke informed his employer that the
lengthy shift bothered his back, Ferro
sent him to the doctor and immediately
assigned him to an eight-hour shift. In
total, Mr. Goetzke worked six twelve-hour
shifts over a period of four months.
Again, this evidence does not establish
that Ferro’s articulated reason for the
discharge was pretextual. Indeed, the
absence of any evidence of pretext is,
standing alone, sufficient to justify the
grant of summary judgment on Mr.
Goetzke’s Frampton claim.
C.
We must now examine whether the district
court properly granted summary judgment
on Mr. Goetzke’s allegation that Ferro
and Crawford conspired to terminate him.
We conduct a de novo review of the
district court’s determination.
Mr. Goetzke maintains that Ferro and
Crawford conspired to terminate his
employment for filing a worker’s
compensation claim./9 A "civil
conspiracy is defined as a combination of
two or more persons, by concerted action,
to accomplish an unlawful purpose or to
accomplish some purpose, not in itself
unlawful, by unlawful means." See
Huntington Mortgage Co. v. DeBrota, 703
N.E.2d 160, 168 (Ind. Ct. App. 1998). Mr.
Goetzke maintained that Ferro and
Crawford conspired to commit an unlawful
act--firing him for filing a worker’s
compensation claim. We already have
determined that the district court
properly granted summary judgment on Mr.
Goetzke’s Frampton claim. It follows that
it is impossible that Ferro and Crawford
engaged in the alleged unlawful
conspiratorial conduct. Because Mr.
Goetzke cannot prove the necessary
illegal purpose of the conspiracy, his
conspiracy claim must fail.
Even if we are in error in our
affirmance of the summary judgment on the
Frampton claim, we would nevertheless
conclude that Mr. Goetzke has failed to
submit any evidence probative of his
conspiracy claim. Specifically, Mr.
Goetzke cites numerous calls between
Ferro and Crawford over a nine-month
period as evidence of conspiracy. Mr.
Goetzke’s reliance on these calls is
misplaced. This evidence, standing alone,
merely proves that Ferro remained in
contact with its claims management
company. To assert that the calls are
evidence of a conspiracy is simply specu
lation. In addition, Foy and Yadwiga
Duncan, Crawford’s claims adjustor, both
testified in depositions that they only
learned of Mr. Goetzke’s discharge days
after his actual termination. Moreover,
no evidence has been offered to refute
testimony by Ferro officials indicating
that they alone discussed and ultimately
settled upon the termination of Mr.
Goetzke. Accordingly, we affirm the
district court’s entry of summary
judgment on the claim of civil
conspiracy.
D.
Finally, we must consider Mr. Goetzke’s
claim that Crawford tortiously interfered
in his employment relationship with
Ferro. As an initial matter, Crawford
contends that the district court lacked
subject matter jurisdiction over this
portion of Mr. Goetzke’s complaint. Thus,
according to Crawford, the court should
dismiss the tortious interference claim
for lack of subject matter jurisdiction.
More precisely, Crawford submits that a
statutory provision contained in
Indiana’s worker’s compensation scheme
deprives federal as well as state courts
of jurisdiction over Mr. Goetzke’s
tortious interference claim.
Specifically, the relevant statutory
provision states that:
The worker’s compensation board, upon
hearing a claim for benefits, has the
exclusive jurisdiction to determine
whether . . . the employer’s worker’s
compensation administrator or the
worker’s compensation carrier has acted
with a lack of diligence, in bad faith,
or has committed an independent tort in
adjusting or settling the claim for
compensation.
Ind. Code 22-3-4-12.1(a). This
exclusivity provision channels to an
administrative agency a worker’s claims
concerning the adjustment or settlement
of a worker’s compensation award. In
effect, this exclusivity provision strips
the Indiana state courts of jurisdiction
over this class of claims./10
It is not correct to say, as Crawford
suggests, that the Indiana legislature
has deprived the federal courts of
subject matter jurisdiction over this
matter. "The jurisdiction of the federal
courts--their power to adjudicate--is a
grant of authority to them by Congress."
Neirbo Co. v. Bethlehem Shipbuilding
Corp., 308 U.S. 165, 167 (1939). Once
Congress has conferred subject matter
jurisdiction on the federal courts, state
law cannot expand or contract that grant
of authority. See Truck Components v.
Beatrice Co., 143 F.3d 1057, 1061 (7th
Cir. 1998); Beach v. Owens-Corning
Fiberglass Corp., 728 F.2d 407, 409 (7th
Cir. 1984). In this case, the federal
diversity statute, 28 U.S.C. sec. 1332,
conferred subject matter jurisdiction on
the district court to adjudicate Mr.
Goetzke’s claims--including his
allegations of tortious interference. The
exclusivity provision of Indiana’s
worker’s compensation statute does
nothing to affect that grant of
jurisdictional authority.
Whether there remains a viable cause of
action is a separate question. When a
federal court exercises diversity
jurisdiction, it merely serves as a
neutral forum in which to present state
law claims. See Woods v. Interstate
Realty Co., 337 U.S. 535, 538 (1949). As
such, it must apply applicable
substantive state laws to the case before
it. Thus, a federal forum, "when invoked
on grounds of diversity of citizenship,
cannot give that which [the state] has
withheld." Angel v. Bullington, 330 U.S.
183, 192 (1947). If state substantive law
has denied a plaintiff a remedy for his
cause of action, the district court must
dismiss the complaint for failure to
state a claim upon which relief may be
granted. See Beach, 728 F.2d at 409.
We therefore must consider whether
Indiana law, through this exclusivity
provision, has denied Mr. Goetzke the
ability to assert a remediable claim
against Crawford. The Indiana statute
bars suits in state court that allege a
worker’s compensation administrator such
as Crawford has committed an independent
tort "in adjusting or settling a claim
for compensation." Ind. Code 22-3-4-
12.1(a). Notably, two elements must exist
before this statute is implicated. First,
the tort must constitute an "independent
tort" within the meaning of the
exclusivity provision. See Samm v. Great
Dane Trailers, 715 N.E.2d 420, 424, 426
(Ind. Ct. App. 1999), transfer denied,
735 N.E.2d 221 (Ind. 2000). Second, the
worker’s compensation administrator must
have committed the tort in the context of
adjusting or settling a claim for
benefits. See Samm, 715 N.E.2d at 427.
Mr. Goetzke’s claim appears to satisfy
the first element of the statute. In
particular, the few Indiana courts to
construe the statutory phrase
"independent tort" have given it a broad
meaning. See Sims v. United States Fid. &
Guar. Co., 730 N.E.2d 232, 236 (Ind. Ct.
App. 2000) (stating that gross negligence
and intentional infliction of emotional
distress are independent torts within
meaning of the statute), transfer granted
on another question, May 4, 2001; Samm,
715 N.E.2d at 426 (finding defamation is
an independent tort within the meaning of
the statute). But see Samm, 715 N.E.2d at
424 (finding that the tort of retaliatory
discharge is not an "independent tort"
within the meaning of the statute). Mr.
Goetzke undoubtedly alleges a tort claim
against Crawford. See, e.g., Winkler v.
V.G. Reed & Sons, Inc., 638 N.E.2d 1228,
1234 (Ind. 1994) ("Indiana has long
recognized that intentional interference
with a contract is an actionable tort.").
Given the backdrop of the Sims and Samm
cases, Mr. Goetzke’s tortious
interference claim most likely
constitutes an independent tort within
the meaning of the exclusivity provision
of the Indiana statute.
However, a second component is necessary
before the claim falls within the scope
of the statute. Specifically, the
independent tort must have been committed
by the worker’s compensation
administrator in adjusting or settling a
compensation claim. See Ind. Code 22-3-4-
12.1(a). One Indiana court has provided
some elaboration on this element.
In Samm v. Great Dane Trailers, 715
N.E.2d 420, 427 (Ind. Ct. App. 1999), an
employer discharged the plaintiff for
allegedly filing a fraudulent worker’s
compensation claim. In response to his
termination, the plaintiff filed a
defamation action against the employer in
state court. The Indiana superior court,
however, dismissed the claim for lack of
subject matter jurisdiction stating that
the cause of action fell within the
exclusivity provision of the worker’s
compensation statute. In reversing this
decision, the Court of Appeals of Indiana
emphasized that the independent tort must
have been "part of [the worker’s
compensation administrator’s] procedure
for ’adjusting or settling’ [a
plaintiff’s] claim for worker’s
compensation benefits." Samm, 715 N.E.2d
at 427. As such, if the defamatory
statements "were made within the context
of the benefits denial, . . . the
complaint would seem to allege an
independent tort which falls within the
exclusive jurisdiction of the Board." Id.
at 427. However, had the defamatory
statement followed the denial of
benefits, the claim would fall outside of
the exclusivity provision because the
"defamatory action would appear to be
related to but separate and independent
from [the defendant’s] procedure for
’adjusting or settling’ a request for
benefits." Id. As the court could not
determine whether the defamation claim
was intertwined with or separate from the
procedure for adjusting or settling the
plaintiff’s worker’s compensation claim,
it remanded the case for further fact
finding.
As Samm makes clear, to fall within the
ambit of the statute, Crawford’s alleged
tortious conduct must have occurred as
part of its procedure for adjusting or
settling Mr. Goetzke’s claim for worker’s
compensation benefits. This element is
simply not present in this case.
Specifically, Mr. Goetzke contends that
Crawford engaged in a pattern of conduct
designed to oust him from his job at
Ferro. If Crawford actually engaged in
such conduct, such actions would not form
part of Crawford’s procedure for
adjusting or settling Mr. Goetzke’s
claims. Because the tortious interference
claim falls outside of the scope of the
exclusivity provision, Mr. Goetzke has
stated a claim upon which relief could be
granted. Thus, the district court
properly addressed the merits of this
count of Mr. Goetzke’s complaint.
E.
Finally, we must determine whether the
district court erred in granting summary
judgment to Crawford on the tortious
interference claim. We review de novo the
district court’s grant of summary
judgment. To maintain a tortious
interference claim under Indiana law, a
plaintiff must demonstrate "(i) the
existence of a valid and enforceable con
tract, (ii) defendant’s knowledge of the
contract, (iii) defendant’s intentional
inducement of breach of the contract,
(iv) absence of justification and (v)
damages resulting from defendant’s
wrongful inducement of the breach."
Winkler v. V.G. Reed & Sons, Inc., 638
N.E.2d 1228, 1235 (Ind. Ct. App. 1994).
At a minimum, Mr. Goetzke has failed to
prove the third element of the tort--that
Crawford intentionally induced his
termination. Specifically, Mr. Goetzke
has failed to submit any evidence that
would lead a reasonable juror to conclude
that Crawford intentionally attempted to
have him fired from his job. To establish
this element, Mr. Goetzke again relies on
the numerous phone calls between Crawford
and Ferro in the nine-months prior to his
termination. To infer inducement from
this evidence is mere speculation.
Moreover, Ferro, not Crawford initiated
the investigation into the possible
fraudulent nature of Mr. Goetzke’s back
injuries. In particular, a Ferro
official, Steve Hartford, requested that
Crawford perform surveillance on Mr.
Goetzke. Finally, Ferro has submitted
uncontroverted testimony that Crawford
had no involvement in the termination
decision. Specifically, only Ferro
officials comprised the group that
ultimately decided to discharge Mr.
Goetzke. Because Mr. Goetzke cannot prove
the third element of the tort, the
district court properly granted summary
judgment on this claim.
Conclusion
We conclude that none of Mr. Goetzke’s
claims present a genuine issue of triable
fact. Accordingly, the judgment of the
district court is affirmed.
AFFIRMED
FOOTNOTES
/1 Mr. Goetzke notes that a physician from whom he
sought a second opinion had suggested that fur-
ther therapy remained an option. Crawford, howev-
er, would not authorize a return trip to this
physician. Rather, Crawford deferred to the
findings of Mr. Goetzke’s physician of record.
/2 The Waddell evaluation gauges symptom magnifica-
tion in a patient with "0" indicating no magnifi-
cation of symptoms.
/3 Indiana law provides numerous procedural safe-
guards for employees once they have submitted a
request for and have begun to receive benefits
under the state’s worker’s compensation scheme.
In particular, if an employee disputes the termi-
nation of benefits or has received no benefits at
all, he may file a "Request for Assistance" with
the Industrial Board of Indiana. The request
initiates an informal dispute resolution process
headed by an ombudsman. The ombudsman will con-
duct a brief investigation and attempt to resolve
the dispute by contacting both the employee and
the employer/insurance carrier. If he cannot
resolve the dispute, the ombudsmen submits the
matter to a worker’s compensation judge.
/4 This cause of action is named for the Supreme
Court of Indiana’s decision in Frampton v. Cen-
tral Indiana Gas Co., 297 N.E.2d 425 (Ind. 1973).
In Frampton, the Supreme Court of Indiana recog-
nized a limited exception to the employment at-
will doctrine. Specifically, it concluded that an
employer could not terminate an employee for
filing a worker’s compensation claim with the
state’s industrial board. If an employer termi-
nated an employee in contravention of this rule,
the employee could bring a retaliatory discharge
claim in state court. However, the Frampton case
did not address the scope of its holding--partic-
ularly whether employees covered by collective
bargaining agreements fell within the decision’s
ambit.
/5 Because our holding overrules Vantine v. Elkhart
Brass Manufacturing Co., Inc., 762 F.2d 511, 517
(7th Cir. 1985), this opinion has been circulated
to the entire court pursuant to Circuit Rule
40(e). No judge in active service has requested
a vote to hear this case en banc.
/6 This court has concluded that time lapses briefer
than the one present in this case fail to create
an inference of causation. See, e.g., Filopovic
v. K & R Express Sys., Inc., 176 F.3d 390, 399
(7th Cir. 1999) (4-month lapse); Adusumulli v.
City of Chicago, 164 F.3d 353, 363 (7th Cir.
1998) (8-month lapse); Parkins v. Civil Constr.
Contractors, Inc., 163 F.3d 1027, 1039 (7th Cir.
1998) (3-month lapse).
/7 The report stated:
[I]t is my opinion that [Mr. Goetzke] is UNABLE
to perform work at the Medium level . . . .
HOWEVER, I DO BELIEVE THE CLIENT IS MAGNIFYING
THE PAIN SYMPTOMS IN AN UNCONSCIOUS EFFORT TO
CONTROL THE ENVIRONMENT.
Dep. V.3, Ex.4.
/8 Mr. Goetzke also argues that the Ferro employee
who terminated him based on the FCE and videotape
evidence lacked the medical expertise to deter-
mine if he was feigning his injury. He further
submits that the company never asked him about
the inconsistences it perceived on the videotape.
Similar to the arguments above, these contentions
do not question the genuineness of Ferro’s as-
sessment; rather, they call into doubt the accu-
racy of the company’s determinations.
/9 As a technical matter, Indiana does not recognize
a cause of action for civil conspiracy. Rather,
it recognizes an action for damages resulting
from a conspiracy. See Huntington Mortgage Co. v.
DeBrota, 703 N.E.2d 160, 168 (Ind. Ct. App.
1998).
/10 At the time the district court rendered its
decision in this case, the Court of Appeals of
Indiana recently had concluded that the exclusiv-
ity provision violated the open courts clause of
the Indiana Constitution. See Sims v. United
States Fid. & Guar. Co., 730 N.E.2d 232, 235
(Ind. Ct. App. 2000), transfer granted, May 4,
2001. Because the Indiana courts had held the
provision invalid, the district court concluded
that it could adjudicate Mr. Goetzke’s tortious
interference claim. However, since the time of
the district court’s decision, the Supreme Court
of Indiana has granted a transfer in the Sims
case. Under Indiana appellate procedure, "if a
transfer is granted, the opinion . . . of the
Court of Appeals shall be automatically vacated."
Ind. R. App. Proc. 58A. The only remaining opin-
ion concerning the validity of the exclusivity
provision--Borgman v. State Farm Ins. Co., 713
N.E.2d 851, 855 (Ind. Ct. App. 1999), transfer
denied, 726 N.E.2d 307--has held the statute
constitutional.