MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Mar 08 2016, 6:18 am
court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Patrick F. O’Leary Lyle R. Hardman Goshen, Indiana Patricia A. Mastagh Hunt Suedhoff Kalamaros LLP South Bend, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jan Van Daele, March 8, 2016 Appellant-Plaintiff, Court of Appeals Case No. 20A03-1509-PL-1539 v. Appeal from the Elkhart Superior Court Concord Community School The Honorable Gretchen S. Lund, Corporation, Judge Appellee-Defendant. Trial Court Cause No. 20D04-1307-PL-172
Bradford, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 1 of 26 [1] On April 19, 2011, Appellant-Plaintiff Jan Van Daele filed a worker’s
compensation claim after injuring her shoulder during the course of her
employment as a bus driver for Appellee-Defendant Concord Community
School Corporation (“Concord”). On November 21, 2011, Van Daele’s doctors
released her to return to work, with certain limitations. Concord did not
require Van Daele to return to work at this time. Instead, Concord permitted
Van Daele to remain off of work and to continue to receive worker’s
compensation benefits while receiving additional treatment for her work-related
injury.
[2] On March 12, 2012, Van Daele’s doctors determined that Van Daele’s
condition had improved to the point that she should return to work
immediately, again with certain limitations. Three days later, on March 15,
2012, Concord offered Van Daele a temporary transitional position which took
into account the limitations set by Van Daele’s doctors. At this time, Concord
notified Van Daele that because her doctors had indicated that her condition
had improved to the point where she should return to work, her worker’s
compensation benefits would cease if she did not accept the offered temporary
transitional position. Van Daele ultimately decided to turn down the
temporary transitional position.
[3] After Van Daele turned down the temporary transitional position, she was
notified by Concord on April 18, 2012, that in light of her refusal to return to
work, she could either resign from her employment or Concord would
terminate her employment. Van Daele did not resign. On May 3, 2012,
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 2 of 26 Concord sent Van Daele a letter notifying her that her employment would be
terminated. The termination of Van Daele’s employment was subsequently
approved by the school board on May 7, 2012.
[4] On July 1, 2013, Van Daele filed the underlying lawsuit, claiming that Concord
wrongfully terminated her employment in retaliation for her act of filing a
worker’s compensation claim. On July 10, 2015, the trial court granted
summary judgment in favor of Concord. Van Daele now challenges the trial
court’s award of summary judgment in favor of Concord. In doing so, Van
Daele claims that issues of material fact remain as to whether Concord’s stated
reason for the termination of her employment, i.e., that she had refused to
return to work after having been released by her doctors to do so, was pretext.
Concluding that all reasonable inferences from the designated evidence indicate
that Van Daele’s employment was not terminated solely because she filed a
worker’s compensation claim, we affirm.
Facts and Procedural History [5] At all times relevant to this appeal, Van Daele was employed as a bus driver for
Concord. On April 1, 2011, Van Daele injured her shoulder while operating
the brake on her bus. She reported the injury to Concord and filed a worker’s
compensation claim on April 19, 2011. Van Daele then began receiving
workers compensation benefits, including medical treatment for her shoulder.
Van Daele underwent surgery to repair damage to her right shoulder on
November 9, 2011.
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 3 of 26 [6] On November 21, 2011, Van Daele’s doctors released her to return to work,
with certain limitations. Concord did not require Van Daele to return to work
at this time. Instead, Concord permitted Van Daele to remain off of work and
to continue to receive worker’s compensation benefits while receiving
additional treatment for her work-related injury.
[7] On March 12, 2012, Van Daele’s doctors again determined that Van Daele’s
condition had improved to the point that she should return to work
immediately, again with certain limitations. Three days later, on March 15,
2012, Van Daele met with her direct supervisor, Rich Matteson, who offered
Van Daele a temporary transitional position as a door receptionist which took
into account the limitations set by Van Daele’s doctors. At this time, Concord
notified Van Daele that because her doctors had indicated that she should
return to work, her worker’s compensation benefits would cease if she did not
accept the offered temporary transitional position. Matteson sent Van Daele a
follow-up letter on March 16, 2012, in which he again set forth the specific
duties associated with the offered temporary transitional position and warned
Van Daele that according to Concord’s insurance provider, her worker’s
compensation benefits would cease if she did not accept the temporary
transitional position and return to work. Van Daele ultimately decided to turn
down the temporary transitional position. As a result, her worker’s
compensation benefits were terminated on March 29, 2012.
[8] Concord Assistant Superintendent Tim Tahara notified Van Daele on April 18,
2012, that in light of her refusal to return to work after having been released by
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 4 of 26 her doctors to do so, she could either resign from her employment or Concord
would terminate her employment. Van Daele did not resign, and on May 3,
2012, Tahara, on behalf of Concord, sent Van Daele a letter informing her that
in light of her continuing inability to perform her essential job functions coupled
with her refusal to accept the temporary transitional position and return to work
after having be released to do so by her doctors, her employment would be
terminated. Van Daele’s employment was subsequently terminated during a
May 7, 2012 school board meeting. Van Daele was officially notified of the
termination of her employment in a letter sent by Concord Superintendent
Wayne Stubbs on May 10, 2012.
[9] On July 1, 2013, Van Daele filed the underlying lawsuit, claiming that Concord
wrongfully terminated her employment in retaliation for her act of filing a
worker’s compensation claim. On December 24, 2014, Concord filed a motion
for summary judgment. The trial court subsequently granted a request for an
extension of time to respond to Concord’s motion for summary judgment. On
February 4, 2015, Van Daele filed a motion to strike certain evidence
designated by Concord in support of its motion for summary judgment.
Specifically, Van Daele sought to strike Concord’s answers to certain
interrogatories. The trial court denied this motion on March 24, 2015, and
ordered Van Daele to respond to Concord’s motion for summary judgment no
later than April 27, 2015.
[10] Van Daele filed a motion to reconsider its motion to strike on April 2, 2015.
The trial court held a hearing on this motion on April 16, 2015, at which time
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 5 of 26 counsel for Van Daele admitted that he had intentionally not informed counsel
for Concord of the alleged deficiencies in the challenged answers as a matter of
trial strategy. The trial court denied Van Daele’s motion to reconsider, ruled
that Concord had timely and properly supplemented its responses to the
challenged interrogatories, and set a May 28, 2015 hearing on Concord’s
motion for summary judgment. Van Daele responded to Concord’s motion for
summary judgment on April 27, 2015. On May 11, 2015, Concord filed its
reply to Van Daele’s response to its motion for summary judgment.
[11] Minutes before the May 28, 2015 hearing on Concord’s motion for summary
judgment, apparently without prior notice to Concord, Van Daele filed a
second motion to strike portions of Concord’s designated evidence. The trial
court heard arguments from the parties regarding Concord’s motion for
summary judgment and gave Concord until June 15, 2015 to respond to Van
Daele’s second motion to strike. Concord filed its response to this motion on
June 3, 2015.
[12] On July 10, 2015, the trial court issued an order denying Van Daele’s second
motion to strike and granting summary judgment in favor of Concord. Van
Daele then filed a motion to correct error, which was subsequently denied by
the trial court. This appeal follows.
Discussion and Decision
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 6 of 26 [13] Van Daele contends that the trial court erred in granting summary judgment in
favor of Concord. Our standard of review for a trial court’s grant or denial of a
motion for summary judgment is well-settled. Purdy v. Wright Tree Serv., Inc.,
835 N.E.2d 209, 212 (Ind. Ct. App. 2005), trans. denied. The purpose of
summary judgment is to end litigation where no factual dispute exists and
which may be determined as a matter of law. Powdertech, Inc. v. Joganic, 776
N.E.2d 1251, 1255 (Ind. Ct. App. 2002). Summary judgment is appropriate
only where there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. Purdy, 835 N.E.2d at 212. The party
moving for summary judgment has the burden of showing that it is entitled to
summary judgment. Powdertech, 776 N.E.2d at 1256. Appellate review of a
summary judgment motion is limited to those materials designated to the trial
court. Purdy, 835 N.E.2d at 212. We do not reweigh the designated evidence;
rather, all facts and reasonable inferences drawn therefrom are construed in
favor of the nonmovant. Id.
[14] The party appealing the denial of a motion for summary judgment has the
burden of persuading the court on appeal that the trial court’s ruling was
improper. Powdertech, 776 N.E.2d at 1256. A grant of summary judgment may
be affirmed upon any theory supported by the designated evidence. Purdy, 835
N.E.2d at 212. Further, although rulings on motions to correct error are
usually reviewable under an abuse of discretion standard, we review a case de
novo when the issue on appeal is purely a question of law. Eagle Aircraft, Inc. v.
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 7 of 26 Trojnar, 983 N.E.2d 648, 657 (Ind. Ct. App. 2013) (citing Ind. Bureau of Motor
Vehicles v. Charles, 919 N.E.2d 114, 116 (Ind. Ct. App. 2009)).
A. Claims of Retaliation Following Termination of Employment [15] In general, an employment contract of indefinite duration is presumptively terminable at the will of either party. Pepkowski v. Life of Ind. Ins. Co., 535 N.E.2d 1164, 1168 (Ind. 1989). However, in Frampton v. Central Ind. Gas Co., 260 Ind. 249, 297 N.E.2d 425 (1973), our supreme court created an exception to the employment-at-will doctrine when an employee was discharged for filing a worker’s compensation claim. The Frampton court stated that when an employee is discharged solely for exercising a statutorily conferred right, an exception to the general rule is recognized, and a cause of action exists in the employee as a result of the retaliatory discharge. Id. at 253, 297 N.E.2d at 428.
Powdertech, 776 N.E.2d at 1261.
[16] “[A] plaintiff bringing a retaliation claim must first prove, by a preponderance
of the evidence, a prima facie case of discrimination.” Id. at 1262 (citing Dale v.
J.G. Bowers, Inc., 709 N.E.2d 366, 370 n. 3 (Ind. Ct. App. 1999)). “Then, the
burden shifts to the employer to articulate a legitimate, nondiscriminatory
reason for discharge.” Id. (citing Dale, 709 N.E.2d at 370 n. 3). “If the
employer carries that burden, then the employee has the opportunity to prove,
again by a preponderance of the evidence, that the reason offered by the
employer is a pretext.” Id. (citing Dale, 709 N.E.2d at 370 n. 3; Fuller v. Allison
Gas Turbine Div., 670 N.E.2d 64, 68 (Ind. Ct. App. 1996)). “In order to be
successful on a claim for retaliatory discharge, a plaintiff must demonstrate that Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 8 of 26 [her] discharge was solely in retaliation for the exercise of” the statutory right to
file a worker’s compensation claim. Purdy, 835 N.E.2d at 212 (emphasis
added). “We have previously explained that the word ‘solely’ means only that
any and all reasons for the discharge must be unlawful to sustain the claim for
retaliatory discharge.” Whirlpool Corp. v. Vanderburgh Cty.-City of Evansville
Human Relations Comm’n, 875 N.E.2d 751, 758 (Ind. Ct. App. 2007).
[17] The question of retaliatory motive for a discharge is generally a question for the
trier of fact. Powdertech, 776 N.E.2d at 1261-62 (citing Dale, 709 N.E.2d at 369).
“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 Enter., Inc. v. Grover, 716 N.E.2d 559, 565 (Ind. Ct. App. 1999) (quoting Hamann v. Gates Chevrolet Inc., 910 F.2d 1417, 1420 (7th Cir. 1990), reh’g denied). 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. Grover, 716 N.E.2d at 565. Accordingly, 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, such as proximity in time or evidence that the employer’s asserted lawful reason for discharge is a pretext. Dale, 709 N.E.2d at 369.
Id. at 1262. “An employee can prove pretext by showing that: (1) the
employer’s stated reason has no basis in fact; (2) although based on fact, the
stated reason[] was not the actual reason for discharge; or (3) the stated reason
was insufficient to warrant the discharge.” Whirlpool Corp., 875 N.E.2d at 758.
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 9 of 26 [18] In this case, Van Daele alleged that she had been retaliatorily discharged.
Concord rejected this allegation and responded that it had discharged Van
Daele because she refused to return to work after having been released by her
doctors to do so. Again, in order to survive Concord’s summary judgment
motion, Van Daele had to present evidence from which a reasonable trier-of-
fact could find that Concord’s stated reason for the termination of her
employment was pretext. Powdertech, 776 N.E.2d at 1262. The trial court
determined that Van Daele failed to do so.
[19] In challenging the trial court’s award of summary judgment in favor of
Concord, Van Daele argues that she designated evidence from which one could
reasonably infer that Concord’s stated reason for the termination of her
employment was pretext and that her employment was instead terminated in
retaliation for her filing of a worker’s compensation claim. Van Daele points to
certain pieces of designated evidence in support of this argument. The
designated evidence cited to by Van Daele generally falls into the following five
categories: (1) evidence demonstrating that Tahara displayed retaliatory intent;
(2) evidence demonstrating that Tahara subsequently altered a letter sent to Van
Daele regarding her termination; (3) evidence that Concord failed to timely
respond to discovery; (4) evidence that Concord failed to warn Van Daele that
rejection of the temporary transitional position would result in the termination
of her employment; and (5) evidence relating to the allegedly suspicious timing
of the termination.
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 10 of 26 1. Alleged Retaliatory Intent [20] Van Daele claims that she designated evidence which demonstrated that Tahara
acted with retaliatory intent when he recommended the termination of her
employment to the school board. Specifically, Van Daele points to her affidavit
in which she averred that when she and her husband met with Tahara on April
18, 2012, Tahara “came into the room and proceeded to kick a chair. His tone
and demeanor were angry. He said rudely: ‘sit down. This has gone on long
enough. You’re not a good fit anymore. You’ve been out 22 weeks.’”
Appellant’s App. p. 405. Van Daele also points to the affidavit of her husband,
Alan Van Daele. With respect to the April 18, 2012 meeting, Alan averred as
follows:
[Tahara’s] demeanor was impersonal and unfriendly. Without any greeting or introduction, he immediately ordered us in a stern voice to be seated. As he did so, he planted his foot on one of the chairs and kicked it toward a wall. The chair struck the wall.
5). The meeting only lasted about five minutes. I recall Mr. Tahara telling Jan that she “wasn’t a good fit,” that “this has gone on long enough,” that she had been off work for over 22 weeks, and that she had only two options – either “resign” from her bus driving job or be “terminated.”
Appellant’s App. p. 413. Van Daele asserts that the above-quoted statements
are direct evidence of animus for Van Daele’s act of filing a worker’s
compensation claim. We disagree.
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 11 of 26 [21] While Tahara may have addressed the Van Daeles in an angry or unfriendly
tone, neither Van Daele or Alan averred that Tahara made any reference to the
fact that Van Daele had filed a worker’s compensation claim. Importantly, the
Van Daeles both averred that Tahara instead referred to the length of time that
Van Daele had been off of work. Also importantly, the April 18, 2012 meeting
occurred over a month after Van Daele’s doctors had indicated that Van Daele
should return to work immediately and nearly a month after Van Daele had
refused to accept the temporary transitional position offered by Concord. These
facts are such that a reasonable trier-of-fact could only infer that any animus on
behalf of Tahara was due to the fact that Van Daele had refused to return to
work (1) after having been released by her doctors to do so, and (2) after having
been offered a temporary position which complied with the restrictions put in
place by her doctors. The Van Daeles’ averments were not sufficient to allow a
reasonable trier-of-fact to infer that said animus stemmed solely from the fact
that Van Daele filed a worker’s compensation claim.
[22] Further, to the extent that Van Daele relies on this court’s prior opinions in
Markley Enterprises and Tony v. Elkhart County, 918 N.E.2d 363 (Ind. Ct. App.
2009), we believe that these case are distinguishable from the facts presented
here. In Markley Enterprises, the company indicated that Grover’s employment
was terminated because Harold Markley, the company’s president, learned that
Grover had made derogatory comments about the company to a co-worker and
believed that Grover’s comments would affect the company’s ability to both
attract new employees and retain existing employees. 716 N.E.2d at 565. The
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 12 of 26 parties designated evidence which demonstrated that the company had
previously disciplined Grover for allegedly attempting to file a false claim for
worker’s compensation benefits. The parties also designated an internal
company memorandum which disclosed an extremely hostile attitude against
Grover for having attempted to file the previous claim and stated that Grover’s
employment would be terminated immediately in the event of “any repeat
violations.” Id. at 566. Noting that the question of retaliatory motive is
generally a question for the trier-of-fact, we concluded that the company was
not entitled to summary judgment because the designated evidence was
sufficient to raise a genuine issue of material fact as to whether the company’s
true motive for terminating Grover’s employment was the fact that he had
made derogatory comments about the company or his filing of the worker’s
compensation claim. Id.
[23] In Tony, the evidence demonstrated that Tony’s difficulties at work only began
after he sought worker’s compensation benefits for an injury which he suffered
while “on-the-job.” 918 N.E.2d at 371. After seeking worker’s compensation
benefits, Tony was allegedly repeatedly labeled a “faker” and was assigned job
duties that violated medical restrictions required by his injuries. Id. There was
no designated evidence suggesting that Tony’s job performance was
unsatisfactory such that Elkhart County might have wanted to discharge him
for any valid reason, as opposed to penalizing him for seeking protections and
benefits offered under the worker’s compensation system. Id. Upon review, we
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 13 of 26 concluded that the parties designated evidence which “was at least sufficient to
survive summary judgment.” Id.
[24] Unlike in Markley Enterprises and Tony, there is no designated evidence
indicating that Concord held a hostile attitude against Van Daele, exposed Van
Daele to repeated harassment, or assigned Van Daele job duties that violated
the medical restrictions put in place by her doctors. Instead, the designated
evidence demonstrates that Concord attempted to accommodate Van Daele
while she recovered from her work-related injury. Specifically, the designated
evidence indicates that Concord allowed her to remain off of work and continue
treatment after she was first released to return to work with restrictions and
offered her a temporary transitional position which accommodated her work
restrictions after she was released, for the second time, to return to work. The
fact that Tahara allegedly used an angry or unfriendly tone and arguably acted
in an unprofessional manner during the April 18, 2012 meeting, which again
took place nearly a month after Van Daele refused to return to work despite
being cleared to do so, did not expose Van Daele to an environment similar to
the environments discussed in Markley Enterprises and Tony.
2. Alleged Alteration of Letter [25] Van Daele also claims that an alleged alteration of certain designated evidence
shows retaliatory intent by Concord. Specifically, Van Daele points to a letter
sent by Tahara, on behalf of Concord, to Van Daele on May 3, 2012, indicating
that her employment would be terminated because she remained unable to
perform the essential functions of her job after more than twenty-two weeks of Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 14 of 26 leave coupled with the fact that she refused to accept the temporary transitional
position offered by Concord after her doctor indicated that she was to return to
work immediately with transitional duties. This letter was printed on
Concord’s letterhead and included the words “Assistant Superintendent” under
Tahara’s name on the signature line. Appellant’s App. p. 441. The designated
evidence also included a second copy of this letter which was provided to the
Indiana Department of Workforce Development in August of 2012, in
connection with Van Daele’s subsequent request for unemployment benefits.
The second copy of the letter was not printed on Concord letterhead, was dated
May 7, 2012, and did not include the words “Assistant Superintendent” under
Tahara’s name. Appellant’s App. p. 253. The letters were identical in all other
respects.
[26] Van Daele asserts that the designated letters prove that Tahara deliberately
altered the date of the letter from May 3, 2012 to May 7, 2012, in an attempt to
conceal the fact that Concord had decided to terminate Van Daele’s
employment prior to the May 7, 2012 school board meeting. Van Daele,
however, designated no evidence that the change of the date was deliberate. To
the contrary, the designated evidence demonstrates that Tahara denied that the
date change was deliberate. The designated evidence further demonstrates that
Tahara explained that the computer that he used to prepare the letter had an
“auto date” feature and that he surmised that the date change may have
occurred when he retrieved a copy of the letter to take with him to the May 7,
2012 school board meeting. Appellant’s App. p. 306. The trial court twice
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 15 of 26 found that the “‘inconsistency’” in the letters does not lead to a reasonable
inference of retaliatory motive as the date on the letter was legally “irrelevant.”
Appellant’s App. p. 14. We agree with the trial court in this regard.
[27] The undisputed designated evidence demonstrates that Van Daele was
informed on April 18, 2012, that her employment would be terminated if she
did not resign. On May 3, 2012, Tahara, on behalf of Concord, sent Van Daele
the letter informing her that because she had not resigned, her employment
would be terminated. As such, regardless of whether the letter was dated May
3 or May 7, 2012, the undisputed evidence demonstrates that in light of Van
Daele’s continued inability to perform her essential job functions coupled with
her refusal to accept the temporary transitional position, Concord had decided
to terminate Van Daele’s employment on or before May 3, 2012. Both
designated copies of the letter are consistent and reflect this decision.
Therefore, we conclude that the designated evidence relating to this claim,
which again consisted only of the two copies of the letter, is insufficient to allow
a reasonable trier-of-fact to infer that Concord acted with retaliatory intent.1
3. Alleged Failure to Timely Respond to Discovery [28] Van Daele next claims that although Concord was obligated to provide all
information that was available to the organization, it evaded certain discovery
1 We note that our review of this and other claims raised by Van Daele on appeal was hampered by Van Daele’s failure to cite to relevant portions of the record as required by the Indiana Rules of Appellate Procedure.
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 16 of 26 requests made by Van Daele for a period of approximately thirteen months.
Van Daele argues that this alleged evasion is inconsistent with a clear
conscience and is sufficient to support the inference that Concord’s stated
reason for the termination of her employment was pretext. Review of the
designated evidence, however, demonstrates that Van Daele’s assertions that
Concord acted in an evasive manner and that certain interrogatories went
unanswered for approximately thirteen months are misleading at best.
[29] On October 15, 2013, Wayne Stubbs, Superintendent of Concord, answered
Van Daele’s requested interrogatories. Van Daele subsequently determined that
some of the provided answers were deficient, and on April 1, 2014, informed
Concord that the answers provided for interrogatories number seventeen,
eighteen, and twenty-two were deficient. Concord filed supplemental answers
to these three interrogatories on May 1, 2014.
[30] On November 5, 2014, during the deposition of Tahara, counsel for Van Daele
notified counsel for Concord that Van Daele believed that the answers provided
for interrogatories number eleven, twelve, thirteen, fourteen, fifteen, and sixteen
were also deficient. Concord filed supplemental answers to these six
interrogatories as well as interrogatories number nineteen, twenty-four, and
twenty-five on November 25, 2014. During an April 16, 2015 hearing, the trial
court and Van Daele’s counsel engaged in the following exchange regarding the
decision to wait approximately thirteen months to notify counsel for Concord
of the alleged deficiencies in the answers to interrogatories eleven through
sixteen:
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 17 of 26 The Court: I guess an – another question for you, Mr. O’Leary. There was a specific request made to the Defendants to supplement interrogatories, I believe it was 17 through 20, or perhaps, 16 through 20. Why wasn’t a specific request made to the Defendants at the time the other request was made to supplement Interrogatories 11 through how many numbers it was?
[Counsel]: Purely unconditional trial strategy, Judge. No other reason; purely, a trial strategy.
The Court: Did you believe that their answers to interrogatories had been completed, or those were complete answers at that time?
[Counsel]: I certainly did not. I could look at them and tell that there were missing pieces of information that I customarily see when I ask someone, tell me the names of people who – who fired my client. But, again, the Court seems to shift ever so slightly in putting the onus on us to get them to tell us what happened.
The Court: Wasn’t that the purpose of discovery though, so that parties can exchange information and engage in effective discovery to aid in resolving disputes?
[Counsel]: Absolutely, and what is unequivocal, Judge Lund, what is confusing, Judge Lund, why is not clear by a question such as Interrogatory 12. If the Defendant fired the Plaintiff, then please explain fully each reason, cause, or basis, for firing Plaintiff. Is the Court suggesting that I have to ask that question again, or ask it in a different way?
The Court: No, Mr. O’Leary, what I’m simply asking is when you made a request for supplementation on certain Interrogatories if you didn’t think that the answers were complete
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 18 of 26 in the Interrogatories, why you didn’t ask for supplementation at that time?
[Counsel]: And I told you that it was purely a matter of trial strategy.
Appellee’s App. pp. 78-79. During this hearing, counsel for Van Daele further
stated:
But my point is, they’re on the offensive with the summary judgment motion, they want something from the Court, right? They didn’t have to file that Motion for Summary Judgment, and my point was, that if they had not filed that Motion for Summary Judgment, the first time anyone would have heard about the inadequacies of these discovery responses would have been in live time in front of the jury, all right.
Appellee’s App. p. 73.
[31] On appeal, Van Daele argues that in failing to properly answer the six
interrogatories in question, Concord acted evasively in an attempt to conceal
the reason for the termination of Van Daele’s employment. The designated
evidence demonstrates otherwise. In fact, the designated evidence
demonstrates that at all relevant time periods, Van Daele was aware of the
reason for the termination of her employment. As early as April 18, 2012,
Concord notified Van Daele that her refusal to accept the temporary
transitional position and return to work would result in the termination of her
employment. Concord has consistently relied on this reason and has not, at
any point, presented any other reason for the termination of Van Daele’s
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 19 of 26 employment. The designated evidence also demonstrates that Van Daele has
been aware since May of 2012 that Tahara recommended the termination of her
employment and said termination was approved by the school board and
Stubbs, in his capacity as Superintendent of Concord.
[32] The designated evidence does not support the reasonable inference that
Concord acted with evasion or with the intent to conceal the reason for the
termination of Van Daele’s employment. To the contrary, to the extent that
either party could be said to have acted with evasive intent, that party would be
Van Daele. The designated evidence demonstrates that Van Daele admittedly
made the tactical decision not to inform Concord of the allegedly deficient
answers to interrogatories eleven through sixteen in order to put herself in the
position to surprise Concord by raising the issue for the first time at trial. The
designated evidence further demonstrates that upon being notified of the
allegedly deficient answers, Concord timely supplemented their answers to
more fully answer Van Daele’s questions. Upon review, we conclude that the
designated evidence relating to Concord’s alleged failure to present timely
answers to interrogatories eleven through sixteen would not support the
reasonable inference that Concord’s stated reason for the termination of Van
Daele’s employment was pretext.
[33] Furthermore, to the extent that Van Daele relies on In re Danikolas, 838 N.E.2d
422 (Ind. 2014) and EEOC v. Sears Roebuck and Company, 243 F.3d 853 (4th Cir.
2001), in support of her claim, we note that both of these cases can be easily
distinguished from the instant matter. Unlike the instant matter, in both In re
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 20 of 26 Danikolas and Sears, the defendant articulated untimely new grievances or
justifications for the termination of the employee’s employment. See In re
Danikolas, 838 N.E.2d at 429 (providing that the employer provided “shifting”
reasons for the employee’s discharge); Sears, 243 F.3d at 853-55 (providing that
the defendant provided untimely additional justifications for its decision to
revoke the offer of employment). Again, here, the demonstrated evidence
demonstrates that Concord has provided a consistent reason for the termination
of Van Daele’s employment throughout all relevant time periods. As such, Van
Daele’s reliance on In re Danikolas and Sears is misplaced.
4. Failure to Warn [34] Van Daele also claims that the designated evidence indicating that she was
initially only warned that declining the temporary transitional position would
result in the suspension of her worker’s compensation benefits supports a
reasonable inference of pretext. The designated evidence demonstrates that in a
March 16, 2012 letter, Matteson, her immediate supervisor, informed Van
Daele that declining the temporary transitional position would result in the
suspension of her worker’s compensation benefits. Matteson did not also
mention the possibility that declining the temporary transitional position would
also result in the termination of her employment. Van Daele argues on appeal
that “[i]f her acceptance of the transition position was so paramount, why
hadn’t Tahara instructed Matteson to warn Van Daele that her refusal to accept
it would result in her termination?” Appellant’s Br. p. 19. Van Daele further
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 21 of 26 argues that “[a]ccordingly, a jury might view Tahara’s explanation for firing
Van Daele as phoney[.]” Appellant’s Br. p. 19.
[35] Van Daele’s arguments in this regard seem to imply that Concord had a duty to
inform her in the March 16, 2012 letter that if she refused the temporary
transitional position, her employment would be terminated. Van Daele,
however has failed to point to any designated evidence or citation to relevant
authority to support this implication.
[36] Review of the designated evidence demonstrates that Concord gave Van Daele
ample opportunity to decide to accept the temporary transitional position. The
fact that Concord initially only warned Van Daele that refusal of the temporary
transitional position would result in the suspension of her worker’s
compensation benefits does not support the reasonable inference that Concord’s
subsequent decision to terminate Van Daele’s employment was pretext.
Further, the fact that Tahara waited until April 18, 2012, to notify Van Daele
that in light of her refusal to accept the temporary transitional position, she
could either resign or her employment would be terminated is insufficient to
support a reasonable inference of pretext because the intervening days afforded
Van Daele the opportunity to consider and decide whether to accept the offered
5. Alleged Suspicious Timing [37] Van Daele last claims that the designated evidence suggests that Tahara rushed
the termination of Van Daele’s employment as the likelihood of her ability to
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 22 of 26 return to her regular duties appeared more certain. In raising this claim, Van
Daele asserts that “[o]nce Tahara realized from [Van Daele’s doctor’s] status
reports that Van Daele was likely to be released to return to regular duty, he
seized upon her decision to decline the transitional position, one month earlier.
Tahara rushed to fire Van Daele before [her doctors] released her to return [to
work] as a bus driver, or so a jury could reasonably conclude.” Appellant’s Br.
p. 20. We disagree.
[38] The designated evidence demonstrates that while Van Daele was released by
her doctors to return to her normal work-related duties around mid-day on May
7, 2012, nothing suggests that Tahara, or anyone else at Concord, was made
aware that Van Daele had been released to resume her duties as a bus driver
until after the decision was made to terminate Van Daele’s employment.
Tahara notified Van Daele on May 3, 2012, that because she remained unable
to perform her bus-driving duties coupled with her refusal to accept the offered
temporary transitional position, Concord “must terminate [her] employment
contract.” Appellant’s App. p. 411. The designated evidence does not contain
any indication that Tahara was made aware that Van Daele was on the verge of
being released by her doctors to resume her bus-driving duties before sending
the May 3, 2012 letter or at any time prior to the May 7, 2012 school board
meeting.
[39] To the contrary, the designated evidence demonstrates that Van Daele did
nothing to ensure that Concord knew prior to the May 7, 2012 board meeting
that she had been released to return to work without any restrictions. Van
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 23 of 26 Daele admitted during her deposition in the instant matter that she did not
notify anyone at Concord when she was released to resume her bus-driving
duties on May 7, 2012. Van Daele also admitted that while she understood that
her doctors would, at some point, notify Concord that she had been released to
resume her bus driving duties, she did not know whether her doctors provided
Concord with this information prior to the May 7, 2012 board meeting or on
some later date.
[40] Upon review of the designated evidence, we conclude that there is nothing
suspicious about the timing involved in Concord’s decision to terminate Van
Daele’s employment. Again, Van Daele first reported her injury to Concord on
April 19, 2011. She also filed her worker’s compensation claim on this date.
On November 21, 2011, Van Daele’s doctors first released her to return to work
with certain restrictions. Concord did not require Van Daele to return to work
at this time but, rather, allowed her to continue her treatment and receive
worker’s compensation benefits. On March 12, 2012, Van Daele’s doctors, for
the second time, released her to return to work with certain restrictions. Three
days later, Concord offered Van Daele a temporary transitional position which
complied with the restrictions set forth by her doctors. After Van Daele refused
to accept the offered temporary transitional position, Concord notified Van
Daele that in light of her continued inability to perform her job duties coupled
with her refusal to accept the offered temporary transitional position, her
employment would be terminated if she did not resign. Van Daele did not
resign and on May 3, 2012, Tahara sent Van Daele a letter indicating that her
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 24 of 26 employment would be terminated. Given that the designated evidence is
devoid of any indication that Concord knew that Van Daele was going to be
released to return to her bus-driving duties on May 7, 2012, or at any time in
the near future, we conclude that the designated evidence does not support Van
Daele’s claim that Concord’s time was suspicious. As such, the designated
evidence establishing the timing of Concord’s communications with Van Daele
and the termination of Van Daele’s employment are insufficient to support a
reasonable inference of pretext.
Conclusion [41] In light of the facts above, we conclude that although Van Daele initially
presented a prima facie case of discrimination, Concord countered by
satisfactorily articulating legitimate, nondiscriminatory reasons for Van Daele’s
discharge. See Powdertech, 776 N.E.2d at 1262. Our review of the evidence
designated by the parties leads us to the conclusion that Van Daele has failed to
present evidence from which a reasonable trier-of-fact could infer that the
reasons offered by Concord were mere pretext. See id. Thus, even applying a
liberal construction in favor of Van Daele, we conclude that Van Daele has
failed to demonstrate that she was discharged solely in retaliation for filing a
worker’s compensation claim. See Purdy, 835 N.E.2d at 212. In light of our
conclusion that Van Daele has failed to establish that she was discharged solely
in retaliation for filing a worker’s compensation claim, id., we cannot say that
the trial court erred in granting summary judgment in favor of Concord.
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 25 of 26 [42] The judgment of the trial court is affirmed.
Baker, J., and Pyle, J, concur.
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 26 of 26