Kenneth J. Yerkes

U.S. District Courts

Casimir Siwak v. Xylem, Inc.

No. 19 C 5350, 2021 WL 2413158 (N.D. Ill. June 14, 2021)

Summary judgment granted in favor of client-employer in a retaliatory discharge claim.

Casimir Siwak brought this suit against his former employer, Xylem Inc., alleging that it unlawfully terminated him in retaliation for exercising his rights under the Illinois Workers’ Compensation Act (IWCA).

Xylem moved for, and was awarded, summary judgment on the claims because it presented evidence that it had a legitimate, non-discriminatory reason for terminating Siwak and Siwak could not prove that evidence was a pretext. The court held because no reasonable jury, even viewing the record in the light most favorable to Siwak, could find that Xylem discharged him in retaliation for bringing and settling a workers’ compensation claim, Xylem was entitled to summary judgment.

Thomas Ostrowski v. Lake County, Indiana

No. 2:18-CV-423 RLM, 2021 WL 1145832 (N.D. Ind. Mar. 25, 2021)

Summary judgment granted in favor of client-employer.

Thomas Ostrowski brought this suit against Lake County, the Lake County Sheriff, the Lake County Treasurer, and the Pension Committee of the Lake County Sheriff. Ostrowski retired in 2003 and received disability benefits, but alleged that because he did not receive cost of living adjustments in his disability benefits but other retirees did, this violated the Equal Protection Clause of the 14th Amendment, Title I of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, and Indiana Code § 36-8-10-15.

The court granted judgement in favor of defendants, finding the Mr. Ostrowski’s claims were barred by a release he signed in a previous settlement agreement. The court found that the general release clause was valid and Mr. Ostrowski therefore released the claims brought in this suit and Defendants were entitled to judgment as a matter of law.

Robin Trupp v. Roche Diagnostics Corporation

440 F.Supp.3d 990, S.D. Indiana, (Feb. 24, 2020)

In this very recent matter our Labor & Employment team obtained summary judgment in a complex lawsuit alleging retaliation under the False Claims Act (FCA) and the Family and Medical Leave Act (FMLA). The plaintiff alleged retaliation under both the FCA and the FMLA. Roche investigated the questions and concluded that the information provided was appropriate. Around that time, the plaintiff requested FMLA leave, which Roche granted. Thereafter, Roche placed the plaintiff on paid administrative leave due to disruptive conduct and behavior exhibited.

This was an “all in” matter Roche could not lose. Plaintiff attempted to leverage her allegations of off-label use of one of its assays by independent physicians and unsafe practices into a large scale attack on Roche’s internal controls and market credibility. During discovery, our team was able to block broad nonparty discovery on multiple health care providers about their use of the assay, securing a protective order. After completing extensive discovery the court granted Summary Judgement, agreeing that the plaintiff had no FCA retaliation case because she had not engaged in protected conduct under the statute, noting that she had not established a subjective or objective reasonable belief that Roche had engaged in fraud. The court likewise granted summary judgment on Plaintiff’s FMLA retaliation claim, finding that she had not suffered a compensable injury under the statute.  

Beverly Cade Roney v. Indianapolis Power & Light Co.

No. 1:14-CV-01646-SEB, 2015 WL 5554003, at *4 (S.D. Ind. Sept. 21, 2015) 

Ken Yerkes and David Pryzbylski successfully obtained dismissal of a lawsuit for Indianapolis Power & Light Company (IPL) on September 21, 2015. Former IPL union employee Beverly Cade Roney filed a federal lawsuit against IPL alleging: 1) that the company violated its collective bargaining agreement with the union by terminating her in violation of § 301 of the Labor Management Relations Act (LMRA); and 2) that she suffered wrongful termination in violation of Indiana law. Ken and David immediately moved to dismiss the LMRA claims based on a statute of limitations defense as well as failure to state a claim, and moved to dismiss the state law claims on grounds they were pre-empted by the LMRA. The District Court agreed with all of the arguments raised by Ken and David and dismissed the complaint in its entirety – with the court borrowing heavily from the firm’s briefs in its colorful opinion. Because Ken and David identified and raised these issues prior to discovery even opening, they saved IPL significant time and expense.

Richard Thoennes v. Roche Diagnostics Corporation

No. 3:11-CV-2337-F, 2013 WL 12124029, at *1 (N.D. Tex. Jan. 17, 2013) 

Plaintiff, Richard Thoennes, sued client-employer Roche Diagnostics Corporation (Roche) for age discrimination based on the Texas Commission on Human Rights Act (TCHRA). Roche prevailed following a four-day jury trial in Dallas, Texas, in which the jury returned a verdict in favor of Roche in all respects.

Thoennes originally was a retail account manager for Roche. During a corporate reorganization in 2006, his position was eliminated and he was selected for a new position – channel business manager – that had new responsibilities such as calling on managed care accounts and formulating strategies for improving Roche’s market position with respect to those accounts. After assuming his new role, Roche’s market share with Thoennes’ largest managed care account promptly and significantly declined. Thoennes refused to acknowledge that there was any market share decline. He also refused to listen to the coaching and advice provided to him by two different Roche supervisors to correct the issue, which ultimately culminated in his placement on corrective action and termination. Thoennes was 50 when he was terminated and he claimed that he was fired as a result of his age. Thoennes’ age claim rested on the fact his replacement was younger than him, and that his supervisor used the word “tenure” on a handful of occasions – which Thoennes interpreted to mean “age.”

At trial, Thoennes reiterated that there was no loss of market share in his largest account. Roche successfully rebutted this claim by showing the jury that the market share numbers drawn from the materials that Thoennes had produced in discovery confirmed there was a consistent decline during his management of the account. Roche also showed the jury that Thoennes’ supervisor treated the channel business managers who reported to him equally and regardless of their age – providing the highest performance scores to the oldest employee. Additionally, Roche showed that the supervisor used the word “tenure” not as a proxy for “age,” but merely as a substitute for “experience” because he expected more from someone, like Thoennes, who had been in sales with the company for a long time (a sentiment that Thoennes himself shared, conceding in a video clip from his deposition played to the jury that he expected more from himself because of his experience). Based on the evidence presented by Roche, the jury unanimously found that age was not a motivating factor in Thoennes’ discharge and ruled in favor of Roche.

Juliee Bates v. Roche Diagnostics Corporation

1:12-cv-00308-RLY-DML, 2013 U.S. Dist. LEXIS 130396 (S.D. Ind. Sept. 12, 2013)

Plaintiff, Juliee Bates, sued client-employer Roche Diagnostics Corporation (Roche) for discrimination and retaliation based on her sex and alleged disability, and also claimed violations of the FMLA. Bates was employed in Roche’s information security group and was responsible for assisting the development and maintenance of information security policies, procedures and standards for Roche’s global operations and also training users and managers on information security projects. She was terminated in early 2011 for poor performance after extensive coaching by her supervisor.

Roche moved for - and was granted - summary judgment on all of her claims. Bates’ sex discrimination and retaliation claims were based on a remark made by her former supervisor in 2006 that she reported to human resources. The court agreed with Roche that this claim was untimely and insufficient to support claims regarding her termination by a different supervisor in 2011. With respect to Plaintiff’s ADA discrimination, accommodation and retaliation claims, the court agreed with Roche that Bates was not a qualified individual with a disability: she never presented any work related restrictions to Roche, never requested an accommodation because of a disability, and never presented any evidence that she had an impairment that substantially limited one or more major life activities. The court also agreed there was no FMLA violation as the company had granted all of Bates’ requested leaves during her employment. Further, the record evidence showed that Bates’ supervisor did not treat employees differently because of their sex, disability or requests for leave. To the contrary, the evidence showed that Bates’ peers shared almost all of her same protected characteristics and her supervisor rated each of them more highly because of their better performance.

Martin Grant v. Roche Diagnostics Corporation

09-CV-1540(JS)(AKT), 2011 U.S. Dist. LEXIS 79994 (E.D. N.Y. 2011)

Confronted with an eighty-six paragraph complaint extensively detailing facts allegedly supporting former Roche Diagnostics Corporation Account Manager Martin Grant’s claims of age discrimination (including an assertion his direct supervisor told him he should leave Roche because “sales is a young man’s game”), Ken Yerkes and David Pryzbylski successfully assisted firm client Roche obtain Summary Judgment on all of Grant’s claims in the Eastern District of New York.

From the outset, litigation was contentious, as Grant immediately began raising electronic discovery issues. Discovery ultimately lasted more than a year, during which time tens of thousands of documents were produced, depositions were conducted around New York and Pennsylvania – including an expert regarding Grant’s alleged damages – and Ken and David tracked down a key witness to obtain an affidavit supporting Roche’s defenses.

In awarding summary judgment for Roche, the Court heavily relied on Ken and David’s Reply Brief that dismantled each of Grant’s arguments and also looked to the affidavit testimony of the former Roche employee that was secured by Ken and David. The Court capped its colorful opinion by holding “the record is devoid of any evidence that age was a motivating factor in – let alone the ‘but-for’ cause of – Roche’s decision to terminate Mr. Grant’s employment.” In addition to a favorable ruling on the merits, the Court awarded Roche over $6,000.00 in costs it incurred while defending the lawsuit, including electronic discovery costs.

Robin Herring v. Disetronic Medical Systems

1:08-cv-1013-SEB-JMS, 2010 U.S. Dist. Lexis 54365 (S.D. Ind. 2010)

Summary judgment granted in favor of client-employer in an FMLA retaliation case.

A former employee alleged her rights under the Family Medical Leave Act (FMLA) were violated when she was terminated for violating client Disetronic’s “no show/no call” policy while having FMLA request paperwork pending. Barnes & Thornburg LLP assisted client Disetronic on their motion for summary judgment in the Federal District Court of the Southern District of Indiana. In addition to granting a favorable ruling on the merits that upheld employers’ rights to enforce their reasonable attendance policies even while FMLA paperwork is pending, the Court also struck an affidavit submitted by the Plaintiff in support of her opposition to summary judgment that conflicted with her deposition testimony.

Bonne Beecher v. Roche Diagnostics Corporation

1:07-cv-1453-DFH-TAB, 2009 U.S. Dist. LEXIS 86449 (S.D. Ind. Sept. 21, 2009)

Plaintiff, Bonne Beecher, sued client-employer Roche Diagnostics Corporation (“Roche”) for race discrimination alleging that she had been unlawfully passed over for 27 different promotional opportunities. Beecher also claimed that the company retaliated against her by failing to promote her and giving her less desirable job assignments because she had complained about what she perceived as racism. Roche moved for - and was granted - summary judgment on the grounds that the record evidence conclusively demonstrated that Beecher had a long history of mediocre job performance and was not the most qualified candidate for any of the various positions she sought. Roche also showed that the company had not retaliated against the plaintiff, particularly given the fact that she remained employed by the company despite having filed two EEOC charges against it.

Tonya Baumann v. The Finish Line, Inc.

1:08-cv-1385-LJM-JMS, 2009 U.S. Dist. LEXIS 76271 (S.D. Ind. Aug. 26, 2009)

Plaintiff, Tonya Baumann, sued client-employer The Finish Line for discrimination based on sex and sexual harassment. Baumann's employment at Finish Line was subject to an arbitration agreement. Plaintiff's counsel refused to dismiss the case and aggressively resisted The Finish Line’s attempts to enforce the arbitration agreement that Baumann signed at the time she was hired. The Finish Line moved to dismiss on the ground that Baumann's claims squarely fell within the scope of the compulsory arbitration provision. The district court granted The Finish Line’s motion noting the arbitration agreement complied with applicable law. This ruling was affirmed on appeal (see above) and Finish Line won the arbitration.

Peggy Tokheim vs. Georgia-Pacific Gypsum, L.L.C.

606 F. Supp. 2d 988, 2009 U.S. Dist. LEXIS 27239 (N.D. Iowa 2009)

Summary judgment granted to client-employer in a case involving alleged Title VII claims of sexual harassment, discrimination and retaliation, and a pendent state law claim under the Iowa Civil Rights Act for sexual harassment, discrimination and retaliation.

Peggy Tokheim was employed by Georgia-Pacific. Tokheim argued that she was subjected to sexual harassment and discrimination during her tenure with Georgia-Pacific. Upon termination, she brought an action against the company alleging violations of Title VII and the Iowa Civil Rights Act. Georgia-Pacific moved for summary judgment arguing that Tokheim’s claims were barred under the doctrine of judicial estoppel. Specifically, Tokheim failed to disclose her claims against it during a prior Chapter 13 bankruptcy proceeding.

In ruling on Georgia-Pacific’s motion for summary judgment, the district court found that Tokheim’s failure to amend her bankruptcy schedules to include her claims was the equivalent of representing to the bankruptcy court that these claims did not exist. Consequently, her subsequent lawsuit against Georgia-Pacific was “clearly inconsistent” with her position taken in the bankruptcy court. Judicial “acceptance” of Tokheim’s position occurred when the bankruptcy court discharged her debts based on the information provided to it. The district court observed that Tokheim’s administrative claims against Georgia-Pacific were filed with the EEOC and the Iowa Civil Rights Commission more than three months before the bankruptcy proceedings were concluded. As a result, if she were to have secured a judgment against Georgia-Pacific without disclosing her claims in the bankruptcy proceeding she would have derived a windfall. The court found that Tokheim was bound by her previous representations to the bankruptcy court and was judicially estopped from pursuing an action against Georgia-Pacific.

Dwane Ingalls v. The AES Corporation

1:07-cv-0104-DFH-TAB, 2009 U.S. Dist. LEXIS 44391 (S.D. Ind. Mar. 26, 2009)

Judgment in favor of client-employer in a case where the plaintiff filed a diversity action against his former employer. Plaintiff pursued litigation against AES in both state and federal court. AES moved to dismiss this lawsuit on grounds of res judicata, arguing that all of the claims in the federal lawsuit could have been brought in the state case in which final judgment was entered against Plaintiff on all of his claims. The court granted the motion to dismiss and entered final judgment in favor of AES. The decision was affirmed on appeal (see above). 

Batesville Casket Company, Inc. v. United Steel Workers of America, Local Union No. 9137

4:07-cv-12, 2008 U.S. Dist. LEXIS 75253 (E.D. Tenn. Aug. 26, 2008)

Summary judgment granted in favor of client-employer (plaintiff) where the client asked the court to review and overturn an Arbitrator's pursuant to §301 of the National Labor Relations Act (NLRA), 29 U.S.C. §185.

Batesville Casket Company and United Steel Workers of America (Union) entered into successive collective bargaining agreements (CBA) pursuant to the National Labor Relations Act. The first CBA was entered into in 1999. Among other things, the 1999 CBA required a four-step dispute resolution process as the exclusive procedure for bringing a grievance to arbitration. As the 1999 CBA neared expiration, Batesville and the Union negotiated a successor agreement, which went in to effect on Sept. 5, 2005. In early 2005, while the 1999 CBA was still in effect, a dispute arose between Batesville and the Union regarding whether certain Union employees--tool crib attendants--were entitled to weekend overtime. This dispute ripened into grievances which were eventually submitted to arbitration in 2006.

The Arbitrator found that the Batesville violated the 1999 CBA from Jan. 1 to Sept. 5, 2005, and also the 2005 CBA from September 2005 to the date of the Award. When Batesville refused to pay any amounts under the 2005 CBA, the Union filed a Request for Clarification with the Arbitrator. In response, Batesville argued that the Union had grieved only alleged violations of the 1999 CBA; thus, the Arbitrator lacked jurisdiction to interpret the 2005 CBA. The Arbitrator ruled he had jurisdiction to award a remedy under the 2005 CBA. Batesville then filed an action in district court challenging the enforceability of the Arbitrator's Award as it related to the 2005 CBA.

The district court ruled that the Arbitrator exceeded his contractual authority by purporting to issue an award under the 2005 CBA. First, it was undisputed that the grievances were submitted under the mandatory four-step dispute resolution process set forth the 1999 CBA. The CBA also mandated that each arbitration hearing should deal with no more than one grievance except by mutual written agreement. Here there was no mutual written agreement.

Further, it was undisputed that, in conjunction with the arbitration hearings at issue, the union did not file grievances under the 2005 CBA. Like the 1999 CBA, the 2005 CBA required a four-step dispute resolution process as the exclusive procedure for bringing a grievance to arbitration. Therefore, no such grievances progressed through the four-step procedure required before any dispute would be subject to arbitration. As a result, the Arbitrator did not have authority to render decisions under the 2005 CBA.

The court also rejected the Union’s argument that Batesville waived, by inaction, its objection to the Arbitrator expanding his award to include the 2005 CBA when it failed to object to the Union’s opening statement. Accordingly, the Court denied enforcement to the Arbitrator’s award as it applied to the 2005 CBA.

James Patterson and Lisa M. Coffey v. Indiana Newspapers, Inc.

1:05-cv-881-LJM-WTL, 2008 U.S. Dist. LEXIS 24798 (S.D. Ind. Mar. 27, 2008)

Summary judgment granted in favor of client-employer in a case involving Title VII multi-employee discrimination claim. (See affirmance on appeal above)

Estate of Anthony Suskovich v. Anthem Health Plans of Virginia, Inc.

1:06-cv-0425-SEB-JMS, 2007 U.S. Dist. LEXIS 91556 ( S.D. Ind., Dec. 10, 2007)

Summary judgment in favor of client-employer granted where plaintiff failed to establish evidence that a former independent contractor engaged by the defendant-client was actually an employee. See affirmance on appeal above.

Raphael Streeter v. SBC, et al.

1:04-cv-0814-LJM-WTL, 2007 U.S. Dist. Lexis 95933 (S.D. Ind. March 5, 2007)

Summary judgment granted in favor of client-employer in a Title VII racial discrimination case.

Plaintiff, a former field engineer was terminated for violating the employer's "zero tolerance" policy regarding the use of company-issued equipment. During an audit of two of the employee's company-issued laptops, the employer used a software program which detected pornographic images accessed at times when Plaintiff was at work and off of work. The court granted summary judgment in favor of Defendant, noting that Plaintiff could not point to a similarly situated employee not in his protected treated more favorably nor prove that Defendant’s legitimate non-discriminatory reason was a pretext.

David Beeson v. Indiana Bell Telephone Co.

1:03-cv-1472-DFH-TAB, 2005 U.S. Dist. LEXIS 34815 (S.D. Ind., Sept. 28, 2005)

Summary judgment granted to employer client in a case where plaintiff alleged that his termination was a breach of contract and therefore violated § 301 of the Labor-Management Relations Act, 29 U.S.C.S. § 185.

David L. Beeson began working for Indiana Bell in 1979. Four years after being diagnosed with multiple sclerosis, Beeson realized that his condition would not allow him to work. He then began a medical leave of absence under Indiana Bell's Short Term Disability (STD) policy, which allowed each non-management employee up to fifty-two weeks of disability benefits for a qualifying event. After Beeson exhausted all available STD benefits, Indiana Bell determined that none of its leave policies or provisions in the collective bargaining agreement (CBA) entitled him to continued employment and he was terminated.

Beeson filed a grievance with his union, but the union determined the contract had not been violated. When the union refused to arbitrate his grievance Beeson sued Indiana Bell for breach of contract; no suit was filed against the union. The district court first found that because Beeson’s breach of contract claim against Indiana Bell was "inextricably interdependent" on proving a breach of duty of fair representation claim against his union (even if the union was not named), the suit constituted a hybrid action under the Labor-Management Relations Act (LMRA). The court then observed that there was no evidence that the union treated other, similar grievances in a preferential manner. In addition, the union's decision not to advance the grievance was in good faith and not arbitrary. The undisputed language in the collective bargaining agreement and the benefits provisions rendered Beeson's grievance futile. Because he could not raise a genuine issue regarding whether the union breached its duty of fair representation, Beeson could not sustain his claim that the employer breached the CBA and violated the LMRA. Accordingly, the district court – adopting the magistrate judge’s recommendation – granted Indiana Bell’s motion for summary judgment.

Sandra Pruett v. Columbia House Co.

<2:02-cv-224-RLY-WGH, 2005 U.S. Dist. LEXIS 7124, (S.D. Ind. March 31, 2005)

Summary judgment granted for employer client in case where former employee alleged she was terminated because of her national origin and in retaliation for under Title VII and the FMLA.

The court found that the employee was not meeting the employer’s legitimate performance expectations at the time of her termination and she could not prove similarly situated employee were treated more favorably than she was in order to establish a prima facie case. Accordingly, the court granted summary judgment in favor of Columbia House on both the Title VII and the FMLA claims.

Vicki Duncan v. Koch Air, LLC

3:04CV-72-H, 2005 U.S. Dist. LEXIS 45851, 2005 WL 1353758 (W.D. Ken. June 2, 2005)

Summary judgment awarded for employer client is case where former employee alleged employment discrimination on the basis of sex and defamation.

Plaintiff Vicki Duncan was an at-will employee at Koch Air and was terminated for violating a company rule that prohibited two consecutive days’ absence without proper notice. The court held that Duncan could not make out a prima facie case of sex discrimination because she failed to offer evidence of similarly situated employees being treated more favorably. Koch pointed out that the two employees Duncan offered as comparators had different supervisors. Because Duncan could not identify similarly situated employees to make out a prima facie case, her discrimination case failed as a matter of law. The court also found that Duncan’s defamation claim failed because the alleged defamatory statements were not “defamation per se” and absent such a finding, the defamation claim fails because she did not allege specific damages resulting from the statements.

Accordingly, the court awarded summary judgment in favor of Koch Air on all claims.

Hazelene Hutton v. Sally Beauty Co.

4:02-CV-190, 2004 U.S. Dist. LEXIS 21523

Client-employer obtained summary judgment on a former employee's ADEA damages claim because the employee did not discharge her duty to mitigate damages; a full-time bartending job was not comparable to the former managerial job in terms of duties and earnings.

Hazelene Hutton was employed by Sally Beauty Company, Inc. (Sally Beauty) until her termination in 2001. Hutton was 58 years old. Hutton subsequently brought a lawsuit against Sally Beauty arguing that she was terminated based on her age in violation of the Age Discrimination in Employment Act (ADEA). Sally Beauty moved for summary judgment based on damages, arguing that even if Hutton were able to prove age discrimination, she would not be entitled to damages due to her alleged failure to mitigate these damages.

In support of its motion for summary judgment, Sally Beauty submitted a collection of classified ads from local newspapers demonstrating that comparable retail management job openings were available in the geographic region where Hutton lived. For example, there were openings for video store managers, store team leaders, an office manager for a winery, managers for a Hallmark store, merchandising managers and store managers for a clothing store.

The Court observed that Hutton had not made any attempts to secure comparable employment. Additionally, Hutton introduced no evidence in support of a good faith effort to secure comparable employment. The Court observed that Hutton’s full-time bartending job was not comparable in terms of duties and responsibilities or in terms of earnings. Accordingly, the district court granted Sally Beauty’s motion for summary judgment.

Steve Aubuchon v. Knauf Fiber Glass, GMBH

240 F. Supp. 2d 859 (S.D. Ind. 2003)

Represented client-employer in obtaining summary judgment in a case involving alleged violations of an employee’s right to leave for the birth of a child under the Family & Medical Leave Act and retaliatory discharge (see affirmance on appeal above).

Calvin Latner v. Delta-HA, Inc.

IP01-0993-C-H/ K, 2002 U.S. Dist. LEXIS 19211 (S.D. Ind. 2002)

Assisted client-employer in obtaining summary judgment in an age discrimination claim.

Calvin Latner worked for Delta-HA and its predecessor, Delta Resins and Refractories, Inc., for about seven years. Delta-HA eventually joined forces with Borden to form HAI. Thereafter, Latner was terminated as part of a reduction in force. Latner subsequently filed suit alleging age discrimination in violation of the Age Discrimination in Employment Act (ADEA), based both on his termination and the company’s failure to rehire him. Defendants Delta-HA and HA-International moved for summary judgment.

The court observed that although Latner established a prima facie case of age discrimination, he failed to produce sufficient evidence that would permit a jury to conclude that his employer’s stated reasons for his termination and failure to rehire him were pretexts for age discrimination. Although Latner introduced evidence of age based comments made by a supervisor, they were not relevant as the supervisor was not involved in any relevant employment decisions. Instead, the evidence indicated that the decisions to terminate Latner's employment and not rehire him were based on the fact that another individual possessed more overall “product knowledge” in relation to the organization’s goals. Additionally, this individual was noted as a better salesman than Latner. Accordingly, the court granted the motion for summary judgment.

Janice L. Yund and Hilary J. Craig v. Covington Foods, Inc.

193 F.R.D. 582 (S.D. Ind. 2000)

Assisted client-employer in defeating a motion to compel financial information on client's corporate net worth because the information was irrelevant to an assessment of punitive damages.

Two plaintiffs filed a Title VII employment discrimination action against their employer, Covington Foods, Inc. alleging sexual harassment by members of its management. Plaintiffs filed a motion to compel disclosure of Covington’s financial information arguing that it was relevant to their assessment of an award of punitive damages.

In ruling against Plaintiffs, the court observed that the law of diminishing marginal utility, which supports the relevance of a natural person's wealth to assess punitive damages, does not apply to corporations. Specifically, corporations are abstract entities whose wealth is owned by stockholders. Since the marginal utility of punitive damages does not decrease as the wealth of the corporation increases, its net worth is irrelevant to the assessment of punitive damages against it. Accordingly, Plaintiffs’ motion to compel was denied. The matter was tried to a jury which rendered a defense verdict on all claims.

Kenny Bricker v. Federal-Mogul Corp.

29 F.Supp.2d 508 (S.D. Ind. 1998)

Assisted client-employer in obtaining a dismissal of employee's action for wrongful discharge based on the pleadings.

Kenny W. Bricker was employed by Federal-Mogul Corporation as a Maintenance and Tool Room Supervisor. After his termination, Bricker brought a lawsuit in state court alleging that he was terminated in retaliation for his refusal to falsify maintenance records to reflect compliance with industry standards and for opposing the efforts by others to do the same. Federal-Mogul removed the action to federal court and argued that Bricker could not state a valid claim because he was an at-will employee. Under Indiana’s at-will doctrine an employer can terminate an employee for any reason absent an employment contract or public policy exception.

Bricker claimed the public policy exception allowing for a wrongful discharge cause of action “if a clear statutory expression of a right or duty is contravened” applied to his claims. Bricker had pled, however, that the source of his “exception” was the ISO 9000 standards adopted by the plant. The court accepted Federal-Mogul’s argument that these standards did not rise to the level of a clear statutory right or duty, and granted Federal Mogul’s motion to dismiss.

James Butts v. Oce-USA, Inc.

9 F.Supp.2d 1007 (S.D. Ind. 1998)

Client-employer's motion for summary judgment granted on the employee's breach of contract and tortious interference with prospective business advantage claims.

James Butts originally was employed by Oce-USA, Inc. (Oce) as a salesperson. In 1994 he changed positions within the company and became a sales manager. That same year, Oce and Ikon Office Solutions (Ikon) entered into a Purchase and Distribution Agreement. Among other things, Oce and Ikon agreed not to solicit or hire each other's employees. In 1996 Butts learned that his position with Oce was going to be eliminated. As a result, he began looking for other employment both within and outside of Oce. Thereafter, Ikon offered Butts a position in Dallas, Texas, but later withdrew its offer after Butts was unable to secure permission from Oce.

Butts eventually was offered a position by Oce as its district sales manager for the Dallas/Fort Worth Region. The position was confirmed in a letter dated August 6, 1998. Thereafter, Oce sent Butts a relocation budget for his move and a copy of its Employee Relocation Policy Manual. Butts subsequently incurred a number of expenses as he attempted to permanently relocate from Indiana to Texas. Many of these expenses were covered by Oce; however, the company refused to provide Butts with additional compensation for other expenses including, among other things, improvements he allegedly made to his home in preparation for sale. Coming close to exceeding the amount of relocation expenses budgeted by Oce, Butts move back to Indiana, without permission, and continued working out of his home. Shortly thereafter he was terminated.

Butts subsequently filed suit claiming that Oce breached its employment contract with him by terminating him without cause. Additionally, Butts claimed that Oce failed reimburse all of his moving expenses after he was transferred to Texas interfered with his potential employment at Ikon. Oce moved for summary judgment on all counts.

The court observed that Oce’s employment letter did not rebut the presumption that Butts was an at-will employee. Specifically, the letter included neither a promise of employment for any specific duration nor any term which would alter Plaintiff's at-will employment status. Additionally, the court found that Oce satisfied its obligations with regard to Butts’ relocation expenses. Finally, with regard to Oce’s alleged interference with Butts’ prospective employment, the court found that Oce simply asserted its contractual right not to waive the nonsolicitation clause entered into between the two companies. Accordingly, the court entered summary judgment for Oce.

Danny White v. Boehringer Mannheim Corp.

28 F.Supp. 2d (S.D. Ind. 1998)

Summary judgment granted in favor of client-employer where employee did not produce sufficient evidence of a recognized disability under the Americans with Disabilities Act (ADA).

Boehringer Mannheim, Corp. (Boehringer) hired Danny J. White in 1987. After his termination, White brought an action alleging that Boehringer discriminated against him in violation of the ADA by failing to accommodate his alleged disabilities, which included hyperlipidemia (high cholesterol), contact dermatitis and lumbosacral strain. In response, Boehringer filed a motion for summary judgment arguing that White did not suffer from a disability recognized by the ADA and that, assuming he did, Boehringer ultimately terminated him for a legitimate, nondiscriminatory reason.

The district court agreed that White did not suffer from an impairment falling within the ADA’s definition of “disability.” Under the ADA, an individual is disabled if he or she (1) has a physical or mental impairment which substantially limits one or more of his major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment. White failed to identify a category of major life activities he could not perform. In light of this, the court considered whether any of his impairments substantially limited his ability to work. The court held they did not. Even when the evidence was viewed in a light most favorable to White, it was insufficient to demonstrate that any of these three conditions substantially limited his ability to work. Since White also failed to raise a material issue over whether he had a record of impairment or was regarded as impaired, summary judgment for Boehringer was entered.

Sandra Washington v. Andersen Consulting LLP

96 C 2765, 1997 U.S. Dist. LEXIS 1472 (N.D. ILL. July 16, 1997)

Summary judgment granted in favor of client-employer where Plaintiff failed to establish evidence of a discriminatory motive based on the Plaintiff's race or gender. The court denied Plaintiff's retaliation claim because she failed to show a causal link between her filing a charge and these actions.

Sandra Washington was employed by Anderson Consulting (Anderson). During her employment with Anderson, Washington was diagnosed with carpal tunnel syndrome. Because Washington was unable to work in her original capacity, Anderson explored alternate positions within the organization that would allow her to work despite these limitations. Nevertheless, neither Washington nor Andersen found another open job that she could perform given her physical limitations. As a result, Andersen terminated Washington’s employment in 1995. Washington subsequently filed suit under the Americans with Disabilities Act (ADA) alleging disability discrimination and retaliatory discharge in violation of Illinois State Law.

In its motion for summary judgment, Anderson argued that Washington failed to demonstrate that her condition constituted a disability within the meaning of the ADA. Anderson also contended that Washington was unable to perform the essential functions of her job and that it did not fail to accommodate her disability because it explored other opportunities within the organization that would allow her to continue working despite her impairment. The district court agreed.

The court concluded that Washington failed to present any evidence that her ability to perform either a class of jobs or a broad range of jobs in various classes was significantly restricted. Thus, she failed to raise a genuine issue of fact as to whether her impairment constituted a disability within the meaning of the ADA. Additionally, Washington failed to show she was qualified for her job as a training assistant. In fact, Washington admitted that following her treating physician’s instructions to avoid repetitive activities meant that she would be unable to perform any of the functions of her position even with reasonable accommodation. Therefore, Anderson was under no obligation to continue Washington’s employment. As to her retaliation argument, Washington conceded there was insufficient evidence to support this claim. Accordingly, the court granted Anderson’s motion for summary judgment.

Brenda Williamson v. Arvin Industries

975 F.Supp. 1235 (E.D. Mo. 1997)

Summary judgment granted in favor of client-employer where employee alleged a sexually hostile work environment.

Brenda Williamson began her employment with Arvin Industries (“Arvin”) in 1974. In October 1992, Williamson began working as a fork-lift driver in the tube mill. Williamson alleged that her foreman subjected her to sexual harassment by calling her offensive and demeaning names and by directing sexual gestures towards her. Williamson brought suit alleging that his conduct toward her created a hostile work environment. In its motion for summary judgment, Arvin argued that Williamson could not demonstrate that it knew or should have known of the harassment. Williamson countered that agency principles imputed liability to Arvin.

In ruling on the motion, the district court observed that the Eighth Circuit applies the "knew or should have known standard to supervisor-induced hostile environment sexual harassment claims.” Thus, the court did not address Williamson’s agency arguments. The court further observed that Williamson offered no basis for her contention that, even though she did not report the alleged harassing conduct, Arvin should have known of the supervisor's conduct because the supervisor made no attempt to conceal his conduct. Indeed, there was no allegation that managers observed the alleged harassing conduct or that someone informed managers of the conduct on Williamson’s behalf.

The court also declined to hold Arvin strictly liable under the Missouri Human Rights Act. Instead, the court found the "knew or should have known" standard was applicable in that context as well. Accordingly, the district court granted Arvin’s motion for summary judgment in its entirety.

Salena Garner v. Arvin Industries

885 F. Supp. 1254 (E.D. Mo. 1995)

Summary judgment granted to client-employer in an age discrimination claim (see affirmance on appeal above).

John Russell v. Acme-Evans Co.

881 F. Supp. 378 (S.D. Ind. 1994)

Motion for summary judgment granted to client-employer in a race and age discrimination case (see affirmance on appeal above).

Jerry Spalding v. Local Union No. 4714, Communication Workers of America and Indiana Bell, Inc.

756 F.Supp. 1151 (S.D. Ind. 1991)

Summary judgment granted to client-employer in a duty of fair representation claim based upon statute of limitations.

Spalding was employed by Indiana Bell and became a member of both the Communications Workers of America (CWA) and Local Union No. 4714. Spalding eventually was terminated by Indiana Bell for a number of reasons including: 1) violating company rules and postal regulations by misusing Indiana Bell's postage meter; 2) misusing company facilities and services of other employees for an unauthorized purpose; and 3) ignoring earlier warnings about being in areas without authorization. At the time of his discharge, Indiana Bell and the CWA were signatories to a collective bargaining agreement (CBA) which set the terms and conditions of employment for union members.

Spalding filed a grievance with the Local Union alleging that Indiana Bell breached the CBA by discharging him. The grievance was denied by Indiana Bell at each of the three steps of the grievance procedure. Thereafter, the Local Union recommended to the CWA that it should take the grievance to arbitration. On June 27, 1988, Spalding was notified by the Local Union President that the CWA had decided not to arbitrate his grievance.

Although the CWA agreed to reconsider its decision, on August 5, 1988, it sent a letter to the Local Union President stating that its original decision not to arbitrate would stand. Spalding testified that he received a copy of this letter on August 7, 1988. On February 9, 1989, Spalding filed suit against Indiana Bell and the Unions for breaching the CBA and for breaching its duty of fair representation.

In its motion for summary judgment, Defendants argued that Spalding failed to file his law suit within the six-month statute of limitations period applicable to such claims. Defendants argued that the six-month period commenced on June 27, when the CWA initially refused to arbitrate. In the alternative, defendants argued that the time began on August 7, when Spalding received notice that CWA had refused to reconsider. In response, Spalding argued that the time ran from August 15, when he received a letter from the local president that reconsideration had been denied.

The court held that the final decision not to arbitrate was made on or before August 5 – the date on the letter to the Local Union President notifying him that the original decision would stand. Since the Union’s decision was made on August 5, 1988, the limitations period expired the following February 5 and the complaint was time-barred.

U.S. Circuit Courts of Appeal

Vishakha Banthia v. Roche Diagnostics Operations, Inc.

No. 11-3290, 2012 U.S. App. LEXIS 17770 (7th Cir. Aug. 22, 2012)

Vishakha Banthia alleged that her reclassification from Scientist to Lab Tech (as part of a departmental restructuring) was the product of age and/or national origin discrimination. The District Court rejected Banthia's claims under both the direct and indirect methods of proof, relying heavily on the arguments advanced in Roche's briefs, which demonstrated Banthia's inability to raise a material issue over whether she was qualified for a higher-level position, or her conjecture that Roche's reasons for reclassifying her were discriminatory.

The Seventh Circuit affirmed, finding no evidence to support Banthia's subjective perception regarding: lab personnel qualifications; how her qualifications compared to those of her peers; or how Roche should have proceeded in effectuating the restructuring.

Tonya Baumann v. The Finish Line, Inc. 

421 Fed. Appx. 632 (7th Cir. 2011), cert. denied, 2012 U.S. Lexis 1514 (Feb. 21. 2012)

The Seventh Circuit Court of Appeals upheld the validity of client employer's employment arbitration agreement holding that the former employee was required to submit her claims to arbitration. The Finish Line then prevailed in the arbitration.

Appellant, Tonya Baumann, sued client-employer The Finish Line, Inc. (Finish Line) for discrimination based on sex and sexual harassment. Before Finish Line hired Baumann, she signed a contract agreeing to resolve any claims concerning her employment through arbitration. The contract referred to a separate plan document containing a more detailed description of the arbitration procedures, including a cost-sharing provision. Baumann's counsel refused to dismiss the case and aggressively resisted Finish Line's attempts to enforce the arbitration agreement. Finish Line moved to compel arbitration and the district court agreed, dismissing Baumann's complaint. Baumann appealed.

On appeal, Baumann argued that she was not bound by the agreement because she never received a copy of the separate plan document. Baumann also argued that the plan document's cost sharing provision rendered arbitration prohibitively expensive. The Seventh Circuit disagreed. Affirming the District Court in all respects, the Court held that the contract incorporated by reference the terms of the separate plan document and therefore it was immaterial whether Baumann exercised her ability to review it. The Court also held that Baumann failed to present sufficient evidence demonstrating the fact that the plan document's cost-sharing provision would render arbitration prohibitively expensive.

Dwane Ingalls v. The AES Corporation

347 Fed. Appx. 246; 2009 U.S. App. LEXIS 22296 (7th Cir. 2009) (cert. denied, 2010 U.S. LEXIS 3277 (April 19, 2010))

The Seventh Circuit Court of Appeals affirmed judgment in favor of client-employer, based on the Supreme Court’s Colorado River abstention doctrine.

Following his termination from AES Corporation, Ingalls filed a lawsuit in state court alleging breach of an employment contract, failure to pay wages, wrongful termination, and defamation. Shortly after the state court granted AES's motion disposing of his wage claim, Ingalls filed another suit in federal court alleging breach of a stock-option contract, common-law fraud, and Indiana securities fraud. Invoking the doctrine of Colorado River abstention, the district court granted AES Corporation’s motion to stay the proceedings pending the outcome of the state court litigation.

After AES prevailed on all his remaining state-court claims, the federal district court dismissed his federal lawsuit as claim-precluded. Ingalls argued on appeal that his federal claims were not precluded because they differed from those brought in state court and could not have been raised there. The Court of Appeals disagreed. To pursue his federal-court theories of liability for contract and fraud, Ingalls would have had to use the same evidence that was required for his state-court contract claims. Since claim preclusion applies when both suits “turn on a shared, central core of evidence,” Ingalls was unable to convince the court to allow his second law suit to pursue his federal claims.

James Patterson and Lisa M. Coffey v. Indiana Newspapers, Inc.

589 F.3d 357, 2009 U.S. App. LEXIS 26692, 107 Fair Empl. Prac. Case (BNA) 1697 (7th Cir. 2009)

Summary judgment in favor of client-employer, Indiana Newspapers, Inc., affirmed by the Seventh Circuit Court of Appeals, in a case alleging Title VII discrimination and related state-law claims.

Patterson and Coffey, both former editorial page writers for The Indianapolis Star (The Star), claimed The Star violated Title VII of the Civil Rights Act of 1964 and state law. Specifically, Patterson claimed that The Star discriminated against him because of his religion, race and age; unlawfully retaliated against him for filing a charge of discrimination with the Equal Employment Opportunity Commission (EEOC); and negligently inflicted emotional distress. Coffey claimed that The Star discriminated against her because of her religion; constructively discharged her by creating and maintaining an environment hostile to her religious beliefs; and negligently inflicted emotional distress.

Finding that the plaintiffs submitted affidavits that directly contradicted their deposition testimony, and that supporting affidavits from other former employees contained inadmissible evidence, the district court accepted The Star’s evidence that Patterson was discharged for poor performance and that Coffey resigned without being subject to any hostile environment or discrimination. The Seventh Circuit affirmed on all grounds.

Estate of Anthony Suskovich v. Anthem Health Plans of Va., Inc.

553 F.3d 559, 2009 U.S. App. LEXIS 1148, 45 Employee Benefits Cas. (BNA) 2390, 14 Wage & Hour Cas. 2d (BNA) 705, 157 Lab. Cas. (CCH) P 35533, 157 Lab. Cas. (CCH) P 60745, 103 A.F.T.R.2d (RIA) 573 (7th Cir. Ind. 2009)

Summary judgment in favor of client (defendant) affirmed by the Seventh Circuit Court of Appeals.

For over a decade, Anthony J. Suskovich was classified as an independent contractor while working for Anthem/WellPoint (WellPoint) as a computer programmer. Suskovich worked directly as a contractor for WellPoint until 2001, but from then on worked for WellPoint through Trasys, an information technology company that supplied contract workers. Following his death, Suskovich’s estate sought declaratory relief affirming Suskovich actually had been either an employee of WellPoint or a joint employee of Trasys and WellPoint. The estate also brought an action under the Fair Labor Standards Act (FLSA) seeking monetary relief for overtime compensation he allegedly was denied. The estate further alleged that Suskovich was denied benefits under the Employee Income and Security Act (ERISA), and sought indemnification for Suskovich’s unpaid taxes due to WellPoint and Trasys’ alleged failure to withhold.

The district court held that Suskovich was an independent contractor and therefore ineligible for benefits or overtime. The Seventh Circuit Court of Appeals agreed and affirmed summary judgment. The Court observed that Suskovich controlled the details of his work; was accountable to WellPoint only for the results of his work; that he had been engaged for specific projects; and that he was never guaranteed that his work would extend beyond limited durations. Finally, the Court observed that Suskovich was issued 1099 forms from both WellPoint and Trasys and never was added to either company’s payroll.

Daniel Rooney v. Koch Air, LLC

410 F.3d 376 (7th Cir. 2005)

The Seventh Circuit Court of Appeals affirmed the district court's ruling that the plaintiff was not disabled within meaning of Americans with Disabilities Act.

Daniel Rooney suffered a back injury shortly after he began working for Koch Air. Five years later he injured it again. As a result, Rooney was limited in his ability to perform some job duties. Unable to reach a satisfactory work arrangement with Koch Air, Rooney resigned. Rooney subsequently sued Koch Air under the Americans with Disability Act (ADA), claiming that Koch Air had discriminated against him and constructively discharged him because of his disability. Rooney also claimed that Koch Air retaliated against him in violation of Indiana law for filing a worker’s compensation claim. The district court granted Koch Air’s motion for summary judgment finding that Rooney had failed to submit evidence demonstrating that a similarly situated nondisabled employee had received more favorable treatment; the pendant state law claim was dismissed without prejudice. Rooney appealed.

In affirming the district court’s decision, the Court of Appeals immediately focused on a fundamental question underlying Rooney’s claim: whether he was "disabled" within the meaning of the ADA. The court concluded that Rooney had failed to present sufficient evidence to demonstrate he was disabled because, although his back injuries were indeed limiting, his testimony revealed that he was able to perform a number of tasks central to most people’s lives. According to the Court, "this in itself dooms his claim that he is actually suffering from a disability cognizable under the ADA."

Steve Aubuchon v. Knauf Fiberglass GmbH

359 F.3d 950 (7th Cir. 2004)

The Seventh Circuit Court of Appeals affirmed judgment in favor of client-employer in a case of first impression under the Family Medical Leave Act (FMLA).

Steve Aubuchon notified his employer orally that he wanted leave under the FMLA due to his wife’s pregnancy. Rather than listing complications, false labor, or a serious health condition as a reason, Aubuchon merely expressed a desire to stay home with his wife until she gave birth. He followed up this oral request by giving Knauf an FMLA form requesting such leave. Neither the form nor his other communications with Knauf informed Knauf that his wife was having complications. Knauf fired Aubuchon under its attendance policy after he repeatedly failed to show up to work. Aubuchon subsequently was reinstated in a deal to resolve his union-initiated grievance, but sued anyway under the FMLA. While that case was being litigated, Aubuchon was permanently terminated after he admitted in his deposition testimony that he had falsified his employment application by failing to acknowledge he was fired by a prior employer for excessive absenteeism. Aubuchon amended his FMLA lawsuit to add a retaliation claim.

The district court granted Knauf’s motion for summary judgment on Aubuchon’s FMLA claim because he had not provided Knauf sufficient information to qualify for FMLA leave. The court also upheld Aubuchon’s termination for falsifying his employment application under the after-acquired evidence doctrine. On appeal, Aubuchon argued that even though his request for FMLA leave was based on insufficient grounds (i.e., expressing a desire to stay home with his pregnant wife), the request was sufficient to trigger a duty on Knauf to investigate the employee’s request further. The Court rejected this argument, concluding that such a ruling would place a substantial and potentially wasteful investigative burden on employers.

EEOC v. Indiana Bell Telephone Co. (Ameritech)

256 F.3d 516 (7th Cir. 2001) (en banc)

The Seventh Circuit Court of Appeals, en banc, vacated a judgment of punitive damages allowed by the district court in a sexual harassment trial. The reversal was based on an evidentiary argument preserved on the client-employer’s behalf during trial.

Gary Amos worked in Ameritech’s coin center and small business unit. Amos had been the subject of sexual harassment allegations for several years. Following an investigation, the Equal Employment Opportunity Commission instituted litigation against Ameritech for its failure to protect female employees. During the jury trial, the district court excluded critical evidence that Ameritech was not able to terminate Amos sooner based on the collective bargaining agreement with Amos’ union. The jury awarded compensatory and punitive damages to these alleged victims of harassment. On appeal, Ameritech challenged, among other things, the $635,000 punitive damage award.

The initial three judge panel from the Seventh Circuit held that the district court erred in foreclosing the company’s proposed defense that the collective bargaining agreement excused its failure to discharge Amos sooner and remanded for a new trial. Hearing the case en banc, the Seventh Circuit held that Ameritech was liable for the compensatory damages ($15,000), but vacated and remanded the punitive damages award. The Seventh Circuit noted that Ameritech proposed to argue not only that the collective bargaining agreement limited its options but also that, had it fired Amos and seen the decision reversed by an arbitrator, both Ameritech and its female employees would have been worse off. This argument could have persuaded a reasonable jury that its labor-relations decisions did not evidence malice or reckless disregard of its female employees’ rights. The Court observed that “An employer is entitled to show that things were not as bad as they appeared, and thus to influence the jury's assignment of punitive damages.”

Sheila Rouse v. Boehringer Mannheim Corp.

108 F.3d 859 (8th Cir. 1997)

Sheila Rouse was a sales representative for Boehringer Mannheim Corporation (Boehringer). Rouse claimed that her supervisor made an enforceable promise to promote her. When she was not promoted, Rouse brought an action against Boehringer claiming breach of contract and discrimination based on sex. Rouse’s breach of contract claim was disposed of on summary judgment, and after a two-week trial the district court entered judgment for Boehringer on the remaining sex discrimination claim.

On appeal Rouse argued that the district court had erred in holding that her supervisor had not made an enforceable promise and that she had presented sufficient evidence at trial to prevail on her sex discrimination claim. The Eight Circuit disagreed. The court observed that Rouse was an at-will employee. In Iowa, at-will employees can be terminated for virtually any reason subject to two limitations: (1) when the discharge is in violation of public policy; and (2) when a contract created by an employer's handbook or policy manual guarantees that discharge will only occur for cause or under certain conditions. Neither of these exceptions applied. Rouse argued that by continuing to work she provided consideration which made her supervisor’s promise enforceable. Under Iowa law, however, agreeing to continue to work is insufficient to make her supervisor’s promise enforceable: “Something more than a promise to continue working is needed to remove the employment relationship from the reach of Iowa's at-will doctrine.” The Court also summarily concluded the trial evidence did not support a finding of sex discrimination.

Salena Garner v. Arvin Industries

77 F.3d 255 (8th Cir. 1996)

The Eight Circuit Court of Appeals affirmed summary judgment in a case where the client's employee alleged a violation of the Age Discrimination in Employment Act.

Arvin Industries (Arvin) determined in 1991 that conditions in the automobile industry necessitated a reduction in force; Garner was released as a result. Garner subsequently brought an action against Arvin alleging that she had been terminated on the basis of her age, in violation of the Age Discrimination in Employment Act (ADEA) and the Missouri Human Rights Act (MHRA). The district court granted summary judgment on both counts and Garner appealed.

In affirming the district court’s decision, the Eight Circuit Court of Appeals concluded that Arvin had articulated a legitimate, nondiscriminatory reason for Garner’s termination based on the company’s reduction in force plan. Arvin selected employees based on positions that could be eliminated or combined with others but still leave the department operational. Other factors considered were the employee’s existing skill-set and his/her capacity to absorb new and additional responsibilities. The Court further held that Garner failed to demonstrate that Arvin’s explanations were pretext for age based discrimination.

John Russell v. Acme-Evans Co.

51 F.3d 64 (7th Cir. 1995)

The Seventh Circuit Court of Appeals affirmed summary judgment in favor of client-employer where plaintiff failed to show that either race or age discrimination was the employer’s true motivation for plaintiff's job downgrade.

John Russell was hired by Acme-Evans Company at its grain elevator in Indianapolis, Indiana. In 1977 Russell became a mill sweeper. This job involved keeping the floor of the elevator clean. Russell subsequently was transferred from his job as a mill sweeper to a skid wrapper, which was a more strenuous and monotonous job. Russell, an African-American, claimed that he was transferred to make room for a younger white man who wanted to be downgraded from assistant miller to mill sweeper. Shortly thereafter, Russell applied to become an assistant miller but was turned down in favor of a younger white man. The following year Russell sought to work overtime as a member of the "blow-down" crew, but was again turned down. As a result, Russell brought suit claiming that the denial of this opportunity, together with the transfer to skid wrapper and the refusal to promote him to assistant miller, was motivated by his race and age.

In response, Acme-Evans submitted affidavits offering nondiscriminatory reasons for its three employment actions; Russell was transferred to the skid wrapper's job primarily because he required close supervision due to disciplinary infractions; he was turned down for the assistant miller's job because he was not trained for it and the individual chosen for the job demonstrated “mechanical aptitude" and "worked well with others;” finally, Russell was turned down for the blow-down crew because he already was getting more overtime than most of the workers and at 190 pounds he was too heavy to effectively perform the job. The district court entered summary judgment for Acme-Evans.

On appeal, the Seventh Circuit observed that Russell had not offered any evidence that was able to withstand Acme-Evans’ motion for summary judgment. Indeed, all that Russell proffered was his own deposition testimony and a subsequent affidavit that contradicted his deposition testimony in some material respects. The Court affirmed summary judgment for Acme-Evans observing, in an oft-cited passage, that a plaintiff cannot create an issue of material fact by contradicting his own deposition testimony.

Hill-Rom Company, Inc. v. NLRB

957 F.2d 454 (7th Cir. 1992)

The Seventh Circuit Court of Appeals denied enforcement of the National Labor Relation Board's cease and desist order where the client-employer bargained its work transfer proposal in good faith to impasse without reflecting any anti-union animus.

Hill-Rom Company, Inc. (Hill-Rom) manufactures hospital beds and other products for the health care industry. To improve its quality control program, Hill-Rom proposed that certain work from one of its recognized bargaining unit jobs be transferred to a new, non-unit position. After several meetings with Hill-Rom, however, the union rejected the proposal. Undeterred, Hill-Rom transferred the work to the new position. The Union thereafter filed an unfair labor practices charge with the National Labor Relations Board. The Board concluded that Hill-Rom violated the National Labor Relations Act first by moving the work without the union’s agreement, and then by refusing to extend the collective bargaining agreement to those employees.

On appeal Hill-Rom argued that its actions constituted a lawful transfer of work, as opposed to an unlawful alteration to the scope of the bargaining unit. The Seventh Circuit Court of Appeals agreed. Assigning work previously performed by unit employees to other employees outside the unit was perfectly consistent with a lawful transfer of work. The Court observed that the proposal was bargained in good faith to impasse without demonstrating any motive of anti-union animus. Finally, no provision in the collective bargaining agreement precluded Hill-Rom from transferring work out of the unit. Since its actions were lawful, the Court denied enforcement of the Board’s order.

Robert D. Aungst v. Westinghouse Electric Corp.

937 F.2d 1216 (7th Cir. 1991)

A JNOV (judgment notwithstanding the verdict) granted in favor of client-employer was affirmed because Plaintiff did not present sufficient evidence the Age Discrimination and Employment Act (ADEA) was violated.

Robert D. Aungst, a Westinghouse engineer, was terminated during a reduction in force. Aungst subsequently brought suit under the ADEA claiming that Westinghouse: 1) terminated him because of his age; 2) refused to rehire him because of his age; and 3) retaliatorily refused to rehire him because he had filed an age discrimination claim with the Equal Employment Opportunity Commission. A jury concluded that Westinghouse willfully discharged Aungst in violation of the ADEA. The district court, however, held that the evidence was insufficient to support the jury’s verdict and granted Westinghouse’s motion for judgment notwithstanding the verdict.

On appeal Aungst argued that he presented sufficient evidence to support the jury’s verdict. The Seventh Circuit Court of Appeals disagreed. Management involved in the decision concluded that although Aungst’s work performance was satisfactory, he was the least versatile and least creative engineer in his department. In addition, his tasks were the easiest to perform. Further, management was aware that Aungst had more difficulty working with employees on his facility’s shop floor than other engineers. Aungst did not provide any evidence that he was fired for reasons other than those stated by Westinghouse. Indeed, there was no proof that any other employees with similar work credentials were accorded more favorable treatment. Accordingly, the Seventh Circuit upheld the district court’s ruling.

Joan Godlove v. Bamberger, et al.

903 F.2d 1145 (7th Cir. 1990)

The Seventh Circuit Court of Appeals affirmed district court's decision in favor of client-employer sanctioning the attorney/plaintiff by dismissing her case with prejudice.

Joan Godlove was hired as an attorney by the law firm Bamberger, Foreman, Oswald & Hahn, in January 1981 and fired in July 1983. In June 1985, Godlove brought a pro se action against the firm and certain named partners alleging that her dismissal was unjust. Her 53 page complaint initially was dismissed by the district court as a "lengthy meandering" statement of facts, containing much "irrelevant material" and "bordering on being scandalous." Her amended complaint (also 53 pages long), however, was allowed to stand.

The trial court subsequently dismissed four counts of her complaint for failure to state a claim upon which relief could be granted. The other counts ultimately were dismissed with prejudice for failure to comply with discovery orders. On appeal Godlove argued that the trial court erred in dismissing her complaint with prejudice.

The Seventh Circuit disagreed. The court observed that each step of the discovery process had been a “monumental exercise” in briefs, motions, and extensions of time. In addition, Godlove had moved to reconsider and vacate several orders. After thorough examination of the record, the Seventh Circuit concluded that Godlove had "willfully and deliberately" ignored and refused to obey the district court’s orders, and therefore in dismissing her suit was justified.

American Commercial Barge Lines Co. v. NLRB

758 F.2d 1109 (6th Cir. Ohio 1985)

Reversed lower court ruling in a case that involved client-employer gaining access to records in a closed file under the Freedom of Information Act (FOIA).

In 1982 American Commercial Barge Line (ACBL) filed an FOIA request with the National Labor Relations Board (NLRB). ACBL request sought copies of all statements, advice memoranda, and position letters filed by the Seafarer's International Union or the Seafarer's Appeals Board in a closed unfair labor practice charge matter brought by ACBL against the union. The request was denied by the Regional Director. ACBL appealed the decision to the NLRB’s General Counsel, but the appeal was denied.

ACBL thereafter brought an FOIA suit in federal district court. The district court granted the NLRB's motion for summary judgment on the grounds that the case was rendered moot by its subsequent disclosure of the requested document. The court held, however, that ACBL was entitled to attorney fees and the Board appealed. On appeal, the Seventh Circuit observed that the FOIA did not automatically award fees to all prevailing FOIA plaintiffs. The court also noted that although the NLRB withheld the records, there was some basis in law for its actions; specifically, the document involved a related investigatory proceeding. In light of the foregoing, the Court found there was no basis for an award of attorney's fees.

Indiana Supreme Court

John Haegert v. University of Evansville

977 N.E.2d 924 (Ind. 2012)

In a unanimous opinion issued by the Indiana Supreme Court, our client, the University of Evansville, obtained a complete victory in a lawsuit brought by a tenured professor for breach of contract based on his dismissal for sexual harassment. This decision brought an end to seven years of protracted litigation. The University terminated the Plaintiff, a tenured professor, following an investigation which concluded that he had sexually harassed one of his colleagues in violation of University policy. The professor responded by filing a breach of contract action in Vanderburgh Circuit Court against the University, alleging that it did not properly follow its policies in terminating him. In tandem with this claim, the professor also filed a separate defamation lawsuit against the colleague, who claimed that he had harassed her (that case likewise was successfully resolved on summary judgment against the professor). Thereafter, both parties filed motions for summary judgment. The trial judge granted summary judgment for the University and summarily denied the professor's competing motion. After the Indiana Court of Appeals reversed this decision, the University (supported by amicus briefs from the Indiana Legal Foundation, Indiana Chamber of Commerce, and Independent Colleges of Indiana) sought to transfer the matter to the Indiana Supreme Court. The Supreme Court accepted transfer and vacated the Court of Appeals’ decision. Ken Yerkes argued the case to the Supreme Court on the merits of the appeal, the Supreme Court affirmed the trial judge’s decision to grant summary judgment to the University in its entirety. The Supreme Court’s extensively detailed 40-page opinion fully validated not only the investigative procedures utilized by the University prior to terminating the professor, but also conclusively established that the University could contractually require its tenured professors to adhere to employment policies containing standards more stringent than those mandated by Title VII.

Indiana Court of Appeals

Randy Axelrod v. Anthem, Inc.

169 N.E.3d 131, 134 (Ind. Ct. App. 2021), on reh'g, No. 19A-PL-1171, 2021 WL 3073766 (Ind. Ct. App. July 21, 2021), transfer denied sub nom. Axelrod v. Amgen, Inc., 2021 WL 5173581 (Ind. Oct. 28, 2021)

Randy C. Axelrod, M.D., a former executive of WellPoint, Inc., sued Anthem Inc. and all of its affiliates, WellPoint, Inc., and Amgen, Inc. after his employment was terminated, raising claims for breach of contract, good faith and fair dealing, civil conspiracy, and tortious interference. Following a jury trial, the Marion County Superior Court entered judgment in favor of Defendants and denied Axelrod’s motions to correct error, for relief from judgment, and for post-trial discovery, supplemental relief, and for a hearing. On appeal, the Indiana Court of Appeals affirmed the trial court’s denial of Axelrod’s motions and affirmed judgment in favor of Defendants. The Indiana Supreme Court denied Axelrod’s petition to transfer the case to the Indiana Supreme Court on Oct. 28, 2021.

Jury Trials

• Axelrod vs. Anthem, Inc. (Indiana State Court, 2017); Three-week jury trial; alleged breach of contract, breach of the duty of good faith and fair dealing, and conspiracy; defense verdict on all counts.
• Thoennes v. Roche Diagnostics Corporation (Texas Fed District Court, 2013); One-week jury trial; age discrimination; defense verdict.
• Maple v. CLIENT (Indiana Federal District Court, 2012); One-week jury trial; alleged age discrimination; defense verdict.
• Sung v. CLIENT (Indiana Federal District Court, 2005); One-week jury trial; alleged national origin discrimination, wrongful discharge; directed verdict for client.
• Yund & Craig v. CLIENT (Indiana Federal District Court, 2002); One-week jury trial; alleged sexual harassment and sex discrimination of two plaintiffs; defense verdict.
• EEOC v. CLIENT (Indiana Federal District Court, 1997); 10-day jury trial; alleged sexual harassment brought on behalf of multiple plaintiffs; adverse verdict initially reversed on appeal, en banc panel vacates punitive damages.
• Massey, Rodgers, & Dotson v. CLIENT (Tennessee Federal District Court, 1997); 10-day jury trial; multiple counts of alleged sexual harassment; defense verdict.
• Sheila Rouse v. Boehringer Mannheim Corp. (Iowa Federal District Court, 1995); One-week jury trial; alleged sex discrimination; defense verdict.
• Wolf v. CLIENT (Michigan Federal District Court, 1994); One-week jury trial; alleged age discrimination and wrongful discharge; defense verdict.
• Aungst v. Westinghouse Electric Corp. (Indiana Federal District Court, 1990); One-week jury trial; alleged age discrimination; obtained defense JNOV.
• Kitterman v. CLIENT (Indiana Federal District Court, 1989); One-week jury trial; alleged race discrimination; defense verdict.
• Arceneaux v. CLIENT (Indiana Federal District Court, 1983); One- week jury trial (2nd Chair); alleged age discrimination; directed verdict for client.

Non-Jury Trials

• CA Audit Appeal v. CLIENT (California Unemployment Board, 2013); Two-day administrative hearing; action challenging independent contractor status of sales representatives; judgment for client on all issues, re-assessment granted.
• Baumann v. The Finish Line, Inc. (Indiana Arbitration Agreement, 2013); Two-day hearing; alleged sex discrimination; Arbitration Award in favor of client.
• Dow AgroSciences, LLC v. Glenn (Indiana State Court, 2006); Suit to enforce non-compete agreement against former employee; obtained Injunction Enforcing Non-Compete.
• Gordon v. CLIENT (Indiana Federal District Court, 2003); Alleged violation of FMLA; dismissed with prejudice day trial was to begin.
• Hendricks v. CLIENT (Minnesota Agency Hearing, 1997); Three-day hearing; alleged age discrimination; defense judgment.
• Hales v. CLIENT (Indiana Agency, 1994); Three-day hearing; alleged race discrimination; defense judgment.
• CLIENT v. Snyder/Conquest Assoc. (Indiana State Court, 1991); One-day bench trial; action to enforce non-competition agreement against former employee; injunction obtained.

Names of client included wherever permitted by Ethical Rules.

Representative Arbitration Awards (2010-present)

Cumulative Arbitration Record (81 cases total):

Discharge Cases:

• 82% for Employer (includes 65% outright wins; 20% reinstatement/no back - pay)
• 18% Union

Contract Interpretation Cases:

• 88% for Employer
• 3% Union
• 9% Split

2023 Contract interpretation matter involving a schedule change.  Arbitrator denied the grievance.

2023 Contract interpretation matter involving overtime pay.  Arbitrator denied the grievance.

2022 Contract interpretation involving change of light duty involving past practice.  Arbitrator denied the grievance.

2022 Termination for failure to report exposure to COVID-19.  Arbitrator found just cause for termination – no reinstatement or backpay.

2021 Contract interpretation involving whether the employer is required to bargain with the union to establish the administration of weekend volunteer overtime for maintenance. Arbitrator denied the grievance and found that the contract did not contain a requirement or duty on the part of the company to agree to bargain with the Union on an issue, therefore, finding the company did not violate the agreement.

2021 Bargaining unit entitlement to holiday pay for the Fourth of July and Labor Day Holidays that occurred while the bargaining unit was locked out. Arbitrator denied 2 days but granted one day. Split decision.

2021 Interpretation of an “unreported” absence policy, which for decades company had applied to employees who come to work but leave immediately after clocking in, in order to avoid an unreported absence. The arbitrator granted the grievance on the ground that the grievant was not aware of this interpretation, but granted the company’s ability to interpret the unreported policy in its preferred way .

2021 Termination of employee for violating the company’s COVID-19 protocols. Reduced termination to a 5 day suspension/back pay.

2020 Discharge of union committeeman. Company convincingly showed that committeeman lied during an investigation. Grievance denied.

2020 Company successfully argued that in order to receive an “upgrade” in pay, an employee must “step into the shoes” of a higher paid classification. The Arbitrator granted the grievance on factual grounds, finding that the grievant had stepped into the shoes of the higher classification. Union had resisted the company’s interpretation of the contractual language, and ultimately the arbitrator adopted the company’s interpretation.

2020 Termination discharge reduced to three-day suspension/back-pay.

2020 Termination discharge reduced to one-day suspension, back-pay and benefits.

2019 Transition of vacation policy from accrual to non-accrual; union demands one year’s vacation pay for all employees. Grievance denied.

2019 Union demands access to plant without prior approval and without employer accompaniment. Grievance denied.

2019 Electronics policy interpretation. Grievance denied.

2018 Calculation of vacation pay. Union objects to realignment of vacation groups based on seniority. Grievance denied.

2018 Summary discharge of employee for insubordinate refusal of overtime assignment during plant emergency. Grievance denied.

2018 Summary discharge of second employee for insubordinate refusal of overtime assignment during plant emergency. Grievance denied.

2017 False accusation of race discrimination by white bargaining unit employee against black supervisor. Grievance denied.

2017 Summary discharge of second maintenance employee for LOTO violation. Reinstatement wo/back pay.

2016 Claim for double-time pay for “off day” work. Grievance denied.

2016 Termination for violation of last chance agreement. Grievance denied.

2016 Credit for union business as “hours worked.” Grievance denied.

2016 Claim for increased vacation benefits during year of accrual. Grievance denied.

2015 Summary discharge for worker’s comp fraud. Reinstatement wo/back pay.

2014 Timing of payment for HSA benefits. Grievance denied.

2013 Discharge for violation of Last Chance Agreement. Reinstatement wo/back pay.

2012 Discharge for time card falsification. Grievance denied.

2011 Discharge for drug test failure. Grievance denied.

2011 Termination for pointing out under negotiated attendance policy. Grievance denied.

2010 Discharge for threatening and intimidating co-workers. Grievance denied.

2010 Discharge for falsifying HACCP documentation. Grievance denied.

2010 Discharge for insubordination and profanity to supervisor; reinstatement wo/back pay; grievant required to pass medical exam to determine fitness for employment.

2009 Discharge for pointing out under negotiated attendance policy. Grievance denied.

2009 Discharge for violation of Last Chance Agreement. Grievance denied.

2009 Unilateral ban of shorts on production floor for safety reasons. Grievance denied.

2009 Summary termination for intimidation of co-workers. Reinstatement w/o back pay.

These case studies should not be used as a substitute for specific legal advice. They are provided only as illustrative examples of the scope of our legal experience. They do not purport to describe all matters with which we are involved. They are summaries only of the matters presented. Every case and legal matter is different. These case studies should not be viewed as suggesting or predicting any outcome in any other legal matter.

Ken Yerkes has negotiated over 160 collective bargaining agreements in multiple industries all across the United States – from the East to West Coasts, and the Northern to Southern borders – with every significant labor union in the country over a wide variety of complex issues and topics, including Covid-19 and effects bargaining. Due to ethical guidelines, we cannot identify client names for whom Ken has bargained.

Representative Presentations

• “Everything Legal,” Indiana State SHRM Annual Conference, Seminar (presenter at every conference since 1995)
• Indiana State Chamber of Commerce Annual Seminar - "Remaining Union Free" (presented twice a year since 1992)
• OSHA's ETS Standard Enjoined: What Do I Do Now and Why Isn't the Federal Contractor Mandate Enjoined, Too?, Nov. 2021
• Consero General Counsel Forum, Moderator for “KnowledgeBridge™ : Today’s Corporate Labor & Employment Law Outlook,” Westlake Village, CA, Nov. 2021
• IWLA Convention & Expo, Panel Member, regarding Your Brand @ Risk – Social Media, Cancel Culture (Brand Security), Nov. 2021
• The Luxury Law Alliance, Luxury Travel & Hospitality Roundtable, Presenter, Oct. 21, 2021
• Indiana State Chamber of Commerce - “How to Hire, Fire & Discipline Your Employees In Indiana” LiveStream Webinar, March 2021
• Consero’s Labor & Employment Law Virtual Roundtable, Presenter, Jan. 2021
• ACCumulate – “The Way Forward: What to Expect on the Labor Front from a Biden Administration,” Dec. 2020
• Consero’s Chief HR Officer Virtual 2-Day Forum regarding various current employment-related topics, Oct. 2020
• IWLA Convention & Expo – Panel Member, regarding “Hot Topics in Employment Law – Key Developments, Issues and Trends in Collective and Class Actions,” Diversity and ADA Council Meeting, March and Dec. 2019
• Winter ACCumulate (ACCA), “Hot Topics in Employment Law, Key Developments, Issues and Trends in Collective and Class Actions,” Indianapolis, IN, Dec. 2019
• ACC Indiana Annual Meeting, “NLRB Decisions Impacting Union and Non-Union Employers,” French Lick, IN, Sept. 2019
• Winter ACCumulate – “A New Labor Regime: A Look at Several Trump Appointments And How They May Impact Employers,” Indianapolis, IN, Dec. 2017
• IWLA Convention & Expo – “Labor & Employment Update: Changes on the way,” Palm Springs, CA, March 2017
• “Key NLRB Developments for Non-Union and Union Employers,” Feb. 2016
• Cyber Security Breakdown Event – “Critical Information You Need To Prevent Cyber Breaches,” (Dallas, TX; Chicago, IL; Washington, DC; Carmel, IN), 2015 and 2006
• “Congress on the Sidelines: Agency Lawmaking,” 2015 International Warehouse Logistics Association Essentials of Warehousing Course, Tempe, AZ, Oct. 2015
• “Navigating the Changing Landscape of Employment Law,” Inside Counsel’s 15th Annual Super Conference, Chicago, IL, May 2015

Representative Publications

• Indiana Guide to Hiring and Firing (7th Edition), Book, Co-Author (2020) (first published 1997)
• Indiana Guide to Labor Relations: How to Deal Effectively with Unions in the Workplace (4th Edition), Book, (2020) (first published June 2002)
• Corporate Counsel Magazine, The New Normal? How the EEOC’s Strategic Enforcement Plan is Aiming to Shape the Future Legal Landscape, Article, Co-Author (Dec. 2014)
• Corporate Counsel Magazine, Micro-Units: The Unwary Beware, Article, Co- Author (Nov. 2014)
• Employment Law360 - EFCA: Card is More Important Than The Person, Article (June 16, 2009)
• Public Employment: Constitutional and Statutory Restraints, Author of Chapter, Employment Termination Rights and Remedies, BNA (2003)
• Employment Termination Supplement - Chapter 8, Employer’s Guide to Understanding Indiana and Federal Employment Laws, Editor, Indiana Manufacturers Association (2001)