Hudson, Dean v. Wal-Mart Stores Inc

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3824
DEAN HUDSON,
Plaintiff-Appellant,
v.
WAL-MART STORES, INC.,
Defendant-Appellee.
____________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 02 C 1751—Sarah Evans Barker, Judge.
____________
ARGUED JUNE 2, 2005—DECIDED JUNE 21, 2005
____________
Before FLAUM, Chief Judge, and BAUER and EVANS,
Circuit Judges.
BAUER, Circuit Judge. During his brief stint as an em-
ployee at a Wal-Mart store in Indianapolis, plaintiff Dean
Hudson did not get along with co-worker Nicholas Ramirez.
Verbal sniping between Hudson and Ramirez eventually led
to a physical altercation at work, and Wal-Mart fired both
men shortly thereafter. Hudson, who was hospitalized for
injuries sustained in the altercation, filed a workers’ com-
pensation claim based on the incident. He then brought suit
in state court, alleging that he was fired in retaliation for
the workers’ compensation filing. Wal-Mart removed the
2 No. 04-3824
suit to federal court on the basis of diversity and moved for
summary judgment. The district court granted the motion.
We affirm.
I. Background
The following facts are either undisputed or presented in
the light most favorable to Hudson. Hudson began working
at Wal-Mart as a Sales Associate on January 10, 2002.
From approximately February 2002 until his termination,
Hudson worked in the Sporting Goods Department. On
April 10, 2002, Ramirez began working at Wal-Mart as
a Stocker, and he often worked in or near the Sporting
Goods Department. Hudson was not shy about sharing
his opinion of Ramirez’s work ethic and performance.
Supp. App. 112-13. Hudson told Ramirez that he could
never find him when he needed him, and that it seemed like
Ramirez had no interest in helping. Id. Hudson informed co-
workers that Ramirez was “worthless” and that he could not
work with Ramirez. Hudson Depo. at 192-93. Hudson also
complained to at least three supervisors about Ramirez. Id.
at 167-69.
On April 26, 2002, Hudson and Ramirez were the only
employees working in the Sporting Goods Department.
Hudson complained to Acting Service Manager Portia Pate
about Ramirez that night. Hudson said that Ramirez was
“worthless” and that he and Ramirez were not getting
along. Supp. App. at 118; Hudson Depo. at 169. Pate told
Hudson to leave Ramirez alone and let management handle
it if he was not doing his job. Hudson Depo. at 180-81. That
same night, Hudson told Assistant Manager Matt Stetson
that he could not work with Ramirez and that he wanted
management to “get rid of” Ramirez. Id. at 178. Hudson
also told Stetson that he and Ramirez had gotten into a
“verbal confrontation” that evening. Id. at 168. Stetson
separated Hudson and Ramirez by moving Ramirez to
another department. Sometime between midnight and 12:30
No. 04-3824 3
a.m. on April 27, 2002, Hudson and Ramirez got into an
argument in the Hardware Department. Ramirez struck
Hudson in the side of the head and continued to strike him
in the head and eye. Hudson suffered a dislocated shoulder
and was taken to a hospital for treatment.
Later that day, Store Manager Shannon Cremeens began
investigating the incident. Pate, Associate Saressa Owens,
and Stetson all provided Cremeens with written statements
regarding their knowledge of the events leading up to the
incident. According to Pate, Hudson complained to her
about Ramirez that night, saying that Ramirez was not
performing his work responsibilities. Pate instructed
Hudson to let management handle it and warned him to
lower his voice because Ramirez was within earshot of the
conversation. Owens reported that Hudson and Ramirez
had been arguing since Ramirez was hired. On the night
preceding the incident, Hudson told Owens that he and
Ramirez had gotten into an argument, and Hudson said
that Ramirez “wasn’t shit” and “would never be shit.” On
the night of the incident, Owens heard Hudson tell Ramirez
that he was “going to kick his ass at two o’clock when he get
(sic) off.”1 Stetson reported that Hudson approached him the
night before the altercation and stated that he could not
work with Ramirez.
1
Although Hudson denies making this statement and the previ-
ous statement, we include them in our opinion for the sole purpose
of relating the information that Wal-Mart assembled during its
investigation. The information from the investigation is relevant
to Wal-Mart’s non-retaliatory explanation for Hudson’s termi-
nation and Hudson’s pretext showing. At that stage, the focus is
not on whether Wal-Mart credited the witnesses that we would
have credited or Hudson would have credited, but on whether
Wal-Mart came to an honest conclusion about the situation based
on the information uncovered by the investigation. Stewart v.
Henderson, 207 F.3d 374, 378 (7th Cir. 2000) (“The focus of a
pretext inquiry is whether the employer’s stated reason was
honest, not whether it was accurate, wise, or well-considered.”).
4 No. 04-3824
Co-Manager Michael Jodrey visited Hudson in the hos-
pital to hear his side of the story. Hudson told Jodrey that
Ramirez was yelling at him and threatening him with
raised fists, and that Hudson walked away. According to
Hudson, Ramirez approached him later and punched him
repeatedly.
Based on the information obtained during the investi-
gation, Cremeens concluded that Hudson and Ramirez
should be terminated for violating Wal-Mart’s Workplace
Violence Policy. The Workplace Violence Policy provides, in
relevant part:
Harassment, violence, threats of violence, and other
similar conduct are unacceptable behaviors and
violations of Company policy. Any Associate who
violates this policy will be disciplined, up to and
including termination from the Company.
Ramirez, who left the store and never returned after the
incident with Hudson, was fired on May 1, 2002. Hudson
was fired on May 6, 2002, which was the first day he re-
turned to Wal-Mart after the incident. Hudson appealed his
termination internally at both the district and regional
level. During those appeals, which were unsuccessful,
Hudson admitted that he was partially at fault for the
altercation.
A few days after the incident, Hudson contacted Lori
Kord, Wal-Mart’s Personnel Manager, and asked how to file
for workers’ compensation benefits. After contacting the
insurance carrier about Hudson’s potential claim, Kord told
Hudson that she “could not guarantee” that Hudson’s claim
would be covered. Hudson felt like Kord “didn’t cooperate
with [him]” because she did not provide him with the
workers’ compensation paperwork. Hudson Depo. at 155.
However, Kord did not refuse to give him the paperwork.
Id. Hudson also asked Kord about filing a workers’ compen-
sation claim just prior to his exit interview with Jodrey on
No. 04-3824 5
May 6, 2002. Hudson ultimately filed for workers’ com-
pensation benefits on May 15, 2002, nine days after he was
fired. Hudson was granted relief by the Indiana Workers’
Compensation Board, and Wal-Mart has appealed the
determination to the Indiana Court of Appeals.
II. Discussion
Hudson’s sole claim is that he was fired in retaliation
for filing a workers’ compensation claim. We review the
district court’s grant of summary judgment de novo, apply-
ing the familiar Rule 56 standards.
Indiana generally adheres to the employment-at-will doc-
trine. However, in Frampton v. Cent. Ind. Gas Co., 260 Ind.
249 (Ind. 1973), the Indiana Supreme Court carved out an
exception to that rule. The plaintiff in Frampton alleged
that she was hesitant to file a workers’ compensation claim
after a work-related injury because she feared a retaliatory
termination. Id. at 250. The plaintiff eventually filed a
claim and was fired without explanation about one month
later. Id. The plaintiff filed suit to challenge the termina-
tion, but the suit was dismissed based on Indiana’s
employment-at-will doctrine. Id. The Indiana Supreme
Court reversed. Id. at 254. The Court explained that “[t]he
basic policy behind [the workers’ compensation statute] is
to shift the economic burden for employment connected
injuries from the employee to the employer.” Id. at 251.
That policy would be frustrated if employees opted not to
file workers’ compensation claims due to fear of reprisal. Id.
at 251-52. As a result, the Court recognized a cause of
action for employees discharged in retaliation for filing
a workers’ compensation claim. Id. at 253. These types of
retaliation claims are now known as Frampton claims in
Indiana.
To maintain a Frampton claim, Hudson must establish a
causal connection between his termination and the filing of
his workers’ compensation claim. Goetzke v. Ferro Corp.,
6 No. 04-3824
280 F.3d 766, 774 (7th Cir. 2002). Because Hudson does not
have direct evidence, he must rely on indirect evidence of
retaliatory motive, such as proximity in time between the
filing of the claim and the termination or evidence that the
employer’s asserted lawful reason for the discharge is a
pretext. Powdertech, Inc. v. Joganic, 776 N.E.2d 1251, 1262
(Ind. Ct. App. 2002) (citation omitted). Hudson can estab-
lish pretext by demonstrating that Wal-Mart’s explanation
for the firing was either dishonest or “patently inconsistent
with the evidence before the court.” Markley Enters., Inc. v.
Grover, 716 N.E.2d 559, 565 (Ind. Ct. App. 1999).
At the outset, it appears that Hudson’s claim founders on
timing because he did not file his workers’ compensation
claim until after he was fired. If Hudson did not file his
claim until after his termination and Wal-Mart did not
know that he intended to file a workers’ compensation claim
until it received notice of the filing, then Hudson would not
be able to establish causation. However, Hudson testified
that he contacted Lori Kord, Wal-Mart’s Personnel
Manager, and asked how to file for workers’ compensation
benefits shortly after the incident, which would have been
at least a few days before he was fired. A reasonable jury
could infer that news of this inquiry made its way to man-
agement at the Indianapolis Wal-Mart, particularly consid-
ering that management was questioning store employees
about Hudson subsequent to the altercation with Ramirez.
In addition, even though the Frampton Court spoke in
terms of retaliation for the filing of a workers’ compensation
claim, its rationale is broad enough to cover plaintiffs in
Hudson’s circumstances who have at least informed their
employer of an intent to file a claim prior to being dis-
charged. Otherwise, an employer could avoid the dictates of
Frampton and the Indiana Workman’s Compensation
Statute by preemptively terminating employees as soon as
it caught wind that an injured employee was considering a
claim. Consequently, the fact that Hudson did not file for
No. 04-3824 7
workers’ compensation benefits before his termination is
not fatal to his claim. Nevertheless, Hudson does not have
enough evidence of causation to reach a jury.
Hudson claims to have both pretext evidence and proxi-
mity in time evidence that raise questions about Wal-Mart’s
motivations for firing him. We start with the proffered
pretext evidence. Wal-Mart has offered a legitimate, non-
retaliatory reason for firing Hudson: He was involved in a
physical altercation at work with a co-worker after weeks of
bickering. Specifically, Cremeens concluded that Hudson
violated Wal-Mart’s Workplace Violence Policy by provoking
the altercation with Ramirez. Pernice v. City of Chicago,
237 F.3d 783, 785 (7th Cir. 2001) (“It is well-established
that an employee can be terminated for violations of valid
work rules that apply to all employees.”). Hudson’s at-
tempts to undermine this explanation are both unpersua-
sive and largely irrelevant. Hudson first argues that it is
suspicious that Wal-Mart fired him five days after firing
Ramirez rather than firing them simultaneously. We fail to
see how this is a suspicious circumstance. Ramirez ran out
of the store after the incident, never returned, and was fired
on May 1; Hudson was fired five days later, which was the
first day he returned to work. Hudson offers nothing other
than speculation to prove that the lag between the termina-
tions was an indication of retaliation, and a plaintiff’s
speculation is insufficient to establish pretext.
Hudson next challenges the accuracy of Cremeens’ conclu-
sions about the incident, describing himself as “the innocent
victim in a workplace skirmish.” Pl.’s Brief at 23. This
description is inconsistent with Hudson’s admission during
his internal appeals that he was partially at fault for the
altercation, and also difficult to square with the record of
Hudson’s campaign to “get rid of” Ramirez. The argument
is also beside the point. The judiciary is not a super-person-
nel department that reexamines and reinvestigates em-
ployee disputes. Foster v. Arthur Anderson, LLP, 168 F.3d
8 No. 04-3824
1029, 1035 (7th Cir. 1999). Our only concern is whether
Wal-Mart’s proffered explanation is a lie to cover-up for
retaliation, and Wal-Mart’s conclusion that Hudson was not
“an innocent victim in a workplace skirmish” was not so
patently inconsistent with the evidence that it suggests that
retaliation was afoot.
Hudson’s final pretext argument is equally as feeble. He
asserts that Wal-Mart’s investigation “lacked integrity”
because Cremeens believed the statements of third parties
over his version of the story. This is a tough argument to
make—Wal-Mart credited the consistent statements of
Hudson’s co-workers and supervisors over his own state-
ment, and Hudson was the only one with an obvious in-
terest in the outcome of the investigation. Ramirez, the
other potentially interested party, did not contribute to the
investigation because he left Wal-Mart for good after the
incident. At any rate, like Hudson’s other arguments, it
does not call into question the sincerity of Wal-Mart’s con-
clusions about the incident.
That leaves us with Hudson’s proximity evidence. Hudson
notes that he was fired shortly after inquiring about his
workers’ compensation rights and insists that this timing
evidence is sufficient in and of itself to raise an inference of
retaliatory intent. We disagree. First, the same underlying
incident led to both Hudson’s termination (at least the
stated reason for it, which Hudson has not effectively
undermined) and his workers’ compensation claim, which
makes Hudson’s timing evidence a wash. Second, timing
evidence is rarely sufficient in and of itself to create a jury
issue on causation. Indeed, in the analogous Title VII
context, we have held that timing, “standing alone, does not
create a genuine issue as to casual connection.” Foster, 168
F.3d at 1034 (citation omitted). Other evidence of retalia-
tion, whether significant or modest, could make the timing
evidence stronger and provide a plaintiff with a basis to
argue that a reasonable jury could find in his favor. But in
No. 04-3824 9
the instant case, Hudson’s timing evidence falls flat; it is
not buttressed with other evidence that suggests retaliatory
motivations. It would also be inappropriate to attach
significant weight to Hudson’s proximity evidence in that
Wal-Mart has offered a strong, credible reason for firing
Hudson. Cygan v. Wis. Dep’t of Corrs., 388 F.3d 1092, 1102-
03 (7th Cir. 2004) (noting that employee must rely on more
than post hoc ergo propter hoc reasoning where employer
has offered a well-supported, innocent explanation for
action). It is difficult to think of a better reason to fire an
employee than for involvement in a physical altercation at
work with a co-worker. More importantly for our purposes,
the record supports Wal-Mart’s explanation, Hudson’s only
plausible riposte is proximity evidence, and no reasonable
jury could find that Hudson was fired in retaliation for his
inquiry about workers’ compensation rights on that basis
alone.
III. Conclusion
For the reasons stated herein, we AFFIRM the decision of
the district court.
10 No. 04-3824
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-21-05