Timothy W. Shackleford v. D&W Fine Pack, LLC (mem. dec.)

MEMORANDUM DECISION FILED
Sep 05 2018, 8:22 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as CLERK
Indiana Supreme Court
precedent or cited before any court except for the Court of Appeals
and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
John C. Theisen Mitchell L. Fraley
Nathaniel O. Hubley Shankman Leone, P.A.
Alex S. Schreiber Tampa Florida
Theisen & Associates, LLC Peter A. Meyer
Fort Wayne, Indiana Faegre Baker Daniels, LLP
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Timothy W. Shackleford, September 5, 2018
Appellant-Plaintiff, Court of Appeals Case No.
18A-CT-489
v. Appeal from the Allen Superior
Court
D&W Fine Pack, LLC, The Honorable Stanley A.
Appellee-Defendant. Levine, Judge
Trial Court Cause No.
02D03-1508-CT-351
Bradford, Judge
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Case Summary
[1] In February of 2014, Timothy Shackleford injured his shoulder while working
at D&W Fine Pack, LLC, and was placed on light duty. Shackleford filed a
worker’s compensation claim and, in June of 2014, underwent surgery.
Shackleford continued on light duty and eventually participated in a transitional
return-to-work program (“RTW Program”). In late October of 2014, the doctor
retained by D&W determined that Shackleford had reached maximum medical
improvement (“MMI”). When Shackleford obtained a second opinion, that
doctor recommended that he undergo a second surgery. Shackleford sought
approval from D&W for the second surgery but never received it and was
terminated in mid-December of 2014. Shackleford sued D&W, claiming, inter
alia, that he was discharged in retaliation for the pursuit of his worker’s
compensation claim. D&W moved for summary judgment on the retaliatory
discharge claim, and the trial court granted the motion. Shackleford appeals,
contending that he designated sufficient evidence to generate a genuine issue of
material fact regarding the question of retaliatory discharge. Because we agree,
we reverse and remand for trial.
Facts and Procedural History
[2] On October 7, 2013, Shackleford began working at D&W, a manufacturer of
plastic food containers, as an extrusion operator. On February 22, 2014,
Shackleford was injured when he was moving a roll of material with the
assistance of an overhead hoist when the hoist dropped the roll four inches,
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injuring his shoulder. Shackleford reported the injury the same day, and D&W
human resources generalist Sylvester Thomas completed a report that was filed
with the Indiana Worker’s Compensation Board. Shackleford was taken to
Redi-Med for treatment and later referred to Dr. Gregory Sassmannshausen at
Fort Wayne Orthopedics. From February 22 to June 19, 2014, Shackleford was
assigned light duty which included no use of his left arm and involved
inspection of product from the production line or that had been returned by a
customer. In approximately May of 2014, according to Shackleford, Mark
Lebert, one of his supervisors, went from speaking with him multiple times a
day to completely ignoring him. On June 19, 2014, Dr. Sassmannshausen
performed shoulder surgery on Shackleford, after which he returned to light
duty at D&W.
[3] On July 23, 2014, Thomas met with Shackleford and issued Shackleford three
write-ups at the same time for attendance, including a verbal warning, a first
written warning, and a second written warning. Shackleford disputed the write-
ups, claiming some of the attendance violations had been the result of physical
therapy appointments that he was required to attend during work hours.
Thomas’s response was that it was a no-fault policy. As it happens, D&W’s
attendance editor spreadsheet processed on July 22, 2014, reflects that
Shackleford was given a verbal warning on January 21, 2014, the first written
warning on February 10, 2014, and the second written warning on July 17,
2014. When asked what had prompted him to issue Shackleford three write ups
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on July 23, 2014, Thomas testified that the incidents had not been brought to
his attention before that time.
[4] According to Shackleford, while Shackleford was doing light duty work at
D&W, reinspection department manager John Lindsey told Shackleford that he
really “f***** up” and told him at least three times that D&W “will never put
you back in the extrusion department.” Appellant’s App. Vol. II p. 170. After
returning to light duty work after his surgery, Shackleford was allegedly told by
supervisor Dave Cuney that he needed to perform work outside of his
restrictions. Shackleford told Cuney that the work was outside of his
restrictions but was told that he if did not do the work he would have to leave.
Shackleford started doing the work ordered by Cuney and, after lifting four
boxes, reinjured his shoulder and required medical attention at Redi-Med.
[5] On September 15, 2014, Thomas had Shackleford sign a transitional return-to-
work agreement, which involved off-site work during his rehabilitation. The
off-site work was at ReNew Retail, which is a thrift store like a Goodwill.
Shackleford started the RTW Program on about September 4, 2014, and the
ninety-day program was set to expire December 4, 2014. Every Friday while
Shackleford was working at ReNew, he was required to take his time card to
D&W so that it would be recorded and so he would be paid by D&W. During
one of these Friday visits to D&W, extrusion department manager Mark Leiber
allegedly told Shackleford that “he didn’t think there [was] anything wrong
with [his] shoulder.” Appellant’s App. Vol. II p. 174.
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[6] On October 29, 2014, Shackleford was determined to be at MMI by Dr.
Sassmannshausen. Dr. Sassmannshausen indicated permanent work
restrictions of no lifting, pushing, or pulling of more than fifteen pounds and no
overhead lifting of more than five pounds. Shackleford disagreed that he was at
MMI “[b]ecause [he] was still having like a catch in [his] shoulder.”
Appellant’s App. Vol. II p. 174. Thomas recalls Shackleford informing him
that he had found a different doctor and was interested in getting a second
opinion.
[7] On November 24, 2014, Shackleford was evaluated by Dr. David Conner at
Ortho NorthEast for a second opinion, and Shackleford gave Dr. Conner’s
report to Thomas later that day. Shackleford told Thomas that he could get his
restrictions lifted if he underwent the surgery recommended by Dr. Conner.
Thomas discussed the report with Shackleford and recalled that he also
discussed it with human resources manager Kelli Tesic. Thomas recalled
telling Shackleford to follow up with Zurich North American, D&W’s worker’s
compensation insurance company, about Dr. Conner’s findings.
[8] Sometime between November 24, 2014 and December 16, 2014, Shackleford
recalls Thomas telling him that he was “creating a hardship for the company.”
Appellant’s App. Vol. II p. 175. Shackleford also felt as though Thomas
“didn’t want to listen about a second opinion.” Appellant’s App. Vol. II p. 175.
On December 15, 2014, Shackleford met with Thomas. Shackleford asked
Thomas whether D&W had made decisions about extending his transitional
work period at ReNew Retail or about his second surgery and inquired about
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taking FMLA (“the Family and Medical Leave Act”) leave. Thomas recalls
informing Shackleford that he had not heard anything from D&W management
about extending the transitional work period or about how D&W wanted to
proceed regarding the second surgery. After meeting with Shackleford on
December 15, 2014, Thomas met with Tesic regarding Shackleford’s questions.
Shackleford designated evidence that during the meeting between Thomas and
Tesic, the decision was collectively made to recommend to the human
resources director that D&W terminate Shackleford’s employment.
[9] On December 16, 2014, Shackleford was notified that his employment was
terminated on the grounds that he was at MMI, his work program had expired,
and D&W could not accommodate his restrictions. On December 19, 2014,
D&W’s Human Resources Department sent Shackleford a holiday card, which
was allegedly opened by Shackleford’s attorney. The holiday card contains
signatures of several employees as well as the handwritten words “Moron” and
“Dumby[.]” Appellant’s App. Vol. II p. 37. At is happened, Shackleford
underwent a second surgery on February 11, 2015. By April 30, 2015,
Shackleford’s shoulder was feeling “great[,]” and he was released with no
restrictions. Appellant’s App. Vol. II p. 183.
[10] On August 27, 2015, Shackleford filed a complaint against D&W, alleging
retaliatory discharge and interference with an FMLA claim, in which he alleged
that he had been terminated because he had been injured and had sought to
exercise his rights to worker’s compensation benefits. D&W removed the case
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to federal court for resolution of the FMLA claim, and, on January 25, 2017,
the district court entered summary judgment in favor of D&W on that claim.
[11] The case returned to state court, and, on July 11, 2017, D&W moved for
summary judgment on the retaliatory discharge claim. On August 10, 2017,
Shackleford filed a brief and designated evidence in opposition to D&W’s
summary judgment motion. On October 17, 2017, the trial court held a hearing
on D&W’s summary judgment motion and, on January 29, 2018, granted it.
Discussion and Decision
Standard of Review
[12] Shackleford contends that the trial court erred when it entered summary
judgment in favor of D&W. When reviewing the grant or denial of a summary
judgment motion, we apply the same standard as the trial court. Merchs. Nat’l
Bank v. Simrell’s Sports Bar & Grill, Inc., 741 N.E.2d 383, 386 (Ind. Ct. App.
2000). Summary judgment is appropriate only where the evidence shows there
is no genuine issue of material fact and the moving party is entitled to a
judgment as a matter of law. Id.; Ind. Trial Rule 56(C). To prevail on a motion
for summary judgment, a party must demonstrate that the undisputed material
facts negate at least one element of the other party’s claim. Merchs. Nat’l Bank,
741 N.E.2d at 386. Once the moving party has met this burden with a prima
facie showing, the burden shifts to the nonmoving party to establish that a
genuine issue does in fact exist. Id. The party appealing the summary
judgment bears the burden of persuading us that the trial court erred. Id. “In
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determining whether there is a genuine issue of material fact precluding
summary judgment, all doubts must be resolved against the moving party and
the facts set forth by the party opposing the motion must be accepted as true.”
Lawlis v. Kightlinger & Gray, 562 N.E.2d 435, 438–39 (Ind. Ct. App. 1990), trans.
denied.
[13] Shackleford contends that the trial court erred in finding that there was no
genuine issue as to whether D&W terminated him in retaliation for pursuing his
worker’s compensation claim.
“In general, an employment contract of indefinite duration is
presumptively terminable at the will of either party.” Stillson v.
St. Joseph Cnty. Health Dep’t, 22 N.E.3d 671, 679 (Ind. Ct. App.
2014) (citing Pepkowski v. Life of Ind. Ins. Co., 535 N.E.2d 1164,
1168 (Ind. 1989)), trans denied (2015). However, it is well settled
in Indiana that an action for retaliatory discharge exists when an
employee is discharged for exercising a statutorily conferred
right, such as filing a worker’s compensation claim. Purdy v.
Wright Tree Serv., Inc., 835 N.E.2d 209, 212 (Ind. Ct. App. 2005),
trans. denied (2006). In Frampton v. Central Indiana Gas Co., 260
Ind. 249, 251–53, 297 N.E.2d 425, 427–28 (1973), our supreme
court held that an employee-at-will who was discharged for filing
a worker’s compensation claim could file an action for retaliatory
discharge against her employer because the Worker’s
Compensation Act was designed for the benefit of employees,
and as such, its humane purpose would be undermined if
employees were subject to reprisal without remedy solely for
exercising that statutory right.
This Court has outlined and consistently followed a three-step
approach to a retaliatory discharge Frampton claim under Indiana
law. First, the employee must prove, by a preponderance of the
evidence, a prima facie case of discrimination. Powdertech, Inc. v.
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Joganic, 776 N.E.2d 1251, 1262 (Ind. Ct. App. 2002).
Specifically, the employee must present evidence that directly or
indirectly implies the necessary inference of causation between
the filing of a worker’s compensation claim and the termination.
Id. Second, the burden shifts to the employer to articulate a
legitimate nondiscriminatory reason for the discharge. Id. If the
employer carries its burden, the employee then has the
opportunity to prove that the reason cited by the employer is a
pretext. Id. He may establish pretext by showing that the
reasons are (1) factually baseless; (2) not the actual motivation for
his discharge; or (3) insufficient to motivate the discharge. Id.The question of whether a retaliatory motive exists for
discharging an employee is a question for the trier of fact. Id. at
1261–62.
Best Formed Plastics, LLC v. Shoun, 51 N.E.3d 345, 351 (Ind. Ct. App. 2016),
trans. denied.
[14] “Where causation or retaliation is at issue, summary judgment is only
appropriate when the evidence is such that no reasonable trier of fact could
conclude that a discharge was caused by a prohibited retaliation.” Markley
Enters. v. Grover, 716 N.E.2d 559, 565 (Ind. Ct. App. 1999). “But to survive a
motion for summary judgment in a Frampton case, an employee must show
more than a filing of a worker’s compensation claim and the discharge itself.”
Id. “The evidence must directly or indirectly support the necessary inference of
causation between the filing of a worker’s compensation claim and the
termination.” Id. “Examples of indirect proof of retaliation include: (1)
proximity in time between the two acts, and (2) an employer’s proffered reason
for termination which is patently inconsistent with the evidence before the
court.” Id.Court of Appeals of Indiana | Memorandum Decision 18A-CT-489 | September 5, 2018 Page 9 of 15
In cases of wrongful termination based upon allegations of
discrimination, pretext can be proven by showing that the
employer’s stated reason has no basis in fact; that although based
on fact, the stated reason was not the actual reason for discharge;
or that the stated reason was insufficient to warrant the
discharge.
Dale v. J.G. Bowers, Inc., 709 N.E.2d 366, 369 (Ind. Ct. App. 1999).
[15] D&W argues that the amount of time that elapsed between Shackleford’s initial
filing and his discharge—approximately ten months—defeats his claim as a
matter of law. While Shackleford concedes that the gap between the injury and
his discharge, standing alone, tends to negate any allegation of retaliatory
intent, he contends that additional designated evidence nonetheless tends to
establish that it existed. As we have recognized, the mere passage of time is not
enough to defeat a Frampton claim when other designated evidence casts doubt
on the employer’s motives. See Markley Enters., 716 N.E.2d at 565 (“[W]e
disagree with the Company that the six month time period which elapsed
between Grover’s filing of his worker’s compensation claim and his termination
is fatal to his claim for retaliatory discharge. Although a closer temporal
connection between the two events often supports an inference of retaliatory
intent, a six month lapse has also sufficed when the other evidence before the court
calls into doubt the employer’s reasons for discharge.”) (emphasis added). Under the
circumstances of this case, we agree with Shackleford that the designated
evidence has generated sufficient doubt about D&W’s motives to survive a
summary judgment motion.
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[16] Shackleford has designated evidence tending to show that D&W’s attitude
toward him changed around the time of his June of 2014 surgery, deteriorated
as time passed, and that he was terminated soon after requesting another
surgery and being told that he was creating a “hardship” for the company.
Shackleford was injured in February of 2014 and placed on light work duty as a
result. Shackleford designated evidence that other D&W employees began to
treat him differently about the time of his first surgery in June of 2014. This
included evidence that (1) a supervisor went from speaking with him multiple
times a day to ignoring him altogether; (2) he was disciplined for previous
absenteeism shortly after his surgery, receiving three write-ups; (3) he was told
by the manager of his light-duty department that he had “f***** up” and that he
would never be put back into the extrusion department; and (4) a supervisor
pressured him into work outside of his restrictions, aggravating his injury.
Shackleford designated evidence that a few months later, the extrusion
department manager told Shackleford that he did not think that there was
anything wrong with his arm. This evidence is sufficient to raise inferences that
there was general skepticism at D&W regarding the extent of Shackleford’s
injury and that at least some members of management and supervisory staff
were attempting to cause him to resign.
[17] Shackleford also designated evidence tending to show that the situation
worsened when he sought additional treatment for his shoulder. After Dr.
Sassmannshausen determined Shackleford to be at MMI in late October,
Shackleford designated evidence which tends to show increasing resistance to
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his attempts to seek a second opinion and/or obtain additional treatment, with
discharge coming soon thereafter. After Shackleford obtained a second
opinion, which included a recommendation for further surgery, Shackleford
designated evidence that Thomas told him that he was creating a hardship for
the company. D&W never did directly respond to Shackleford’s requests for
the approval of additional treatment for his shoulder, and within a few weeks of
Thomas’s alleged statement, Shackleford had been terminated. We conclude
that the designated evidence is sufficient to generate a genuine issue of material
fact as to whether D&W discharged Shackleford in retaliation for pursuing his
worker’s compensation rights.
[18] We find D&W’s counter-arguments to be unpersuasive. First, D&W relies on
Cummins v. Kroger Co., Cause No. 54A01-0603-CV-113 (Ind. Ct. App. March
30, 2007), trans. denied, for the proposition that the mere passage of ten months
should be sufficient to defeat Shackleford’s Frampton claim. Cummins, of
course, as an unpublished memorandum decision, has no precedential value.
Moreover, we are not entirely persuaded by the Cummins court’s conclusion
that a Frampton claim can only be based on direct retaliation for filing a
worker’s compensation claim—but not for pursuing one as time passes.
Employees unquestionably have the statutory right to pursue continuing
treatment for workplace injuries, and Frampton made it clear that “when an
employee is discharged solely for exercising a statutorily conferred right an
exception to the general rule [of employment-at-will] must be recognized.” 297
N.E.2d at 428.
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[19] D&W also points to the fact that it discharged Shackleford after Dr.
Sassmannshausen determined him to be at MMI, seeming to suggest that this
conclusively establishes that D&W legitimately discharged Shackleford. While
it may be true that Dr. Sassmannshausen’s determination makes it more likely
that D&W discharged Shackleford for a legitimate reason, it is hardly
conclusive, especially in light of the fact that D&W also had Dr. Conner’s
opinion, which contradicted the MMI determination. The significance of Dr.
Sassmannshausen’s MMI determination is a question best left for a jury.
Moreover, to the extent that the MMI determination tends to support the
conclusion that D&W had a legitimate reason for discharge, Shackleford does
not dispute that D&W has articulated a legitimate reason for his discharge.
Shackleford contends, however, that other designated evidence could support a
finding that the articulated reason was a pretext, a contention with which we
agree.
[20] D&W also seems to contend that any comments directed at Shackleford that
might seem to indicate hostility or skepticism were not made by decision-
makers and are therefore irrelevant as a matter of law. “Stray remarks may be
evidence of intentional discrimination if they are sufficiently connected to the
employment decision.” Purdy, 835 N.E.2d at 218 (citing Dandy v. United Parcel
Service, Inc., 388 F.3d 263, 272 (7th Cir. 2004)). “In other words, the remarks
must be made by the decisionmaker or those who influence the decisionmaker
and must be made close in time to the adverse employment decision.” Id. At
the very least, Shackleford designated evidence that Thomas told him that he
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had created a “hardship” for D&W and that Thomas was, within a few weeks
of that alleged comment, directly involved in the decision to terminate him.
Moreover, given that Shackleford alleges comments and/or actions by two
department managers and two supervisors, we cannot say that no reasonable
person could infer that these persons were connected to the decision-making
process in some way.
[21] Finally, D&W identifies several other pieces of designated evidence that it
claims are suspect, including evidence of the remarks allegedly made by other
employees, orders to work outside of restrictions, the write-ups by Thomas for
attendance violations, and the holiday card. Without going into detail, D&W’s
arguments are nothing more than an invitation for us to evaluate the truth
and/or significance of these pieces of designated evidence, one that we decline.
As mentioned, we must assume at this stage of the proceedings that all of the
facts designated by Shackleford are true and resolve all doubts in his favor. See
Lawlis, 562 N.E.2d at 438–39. As for the significance of various pieces of
evidence, such questions are best left for a jury.
[22] In summary, we conclude that Shackleford has established that a genuine issue
of material fact exists as to whether D&W discharged him in retaliation for
pursuing his worker’s compensation claim. We therefore reverse the trial
court’s entry of summary judgment in favor of D&W and remand for trial.
[23] We reverse the judgment of the trial court and remand with instructions.
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Bailey, J., and Mathias, J., concur.
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