BENDER v. AVON EDUCATION FOUNDATION

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

SARA BENDER, )

)

Plaintiff, )

)

v. ) No. 1:19-cv-04694-TAB-RLY

)

AVON COMMUNITY SCHOOL )

CORPORATION, )

AVON EDUCATION FOUNDATION, )

)

Defendants. )

ORDER ON DEFENDANTS'

MOTION FOR SUMMARY JUDGMENT

I. Introduction

Plaintiff Sara Bender served as the Executive Director of Defendant Avon Education

Foundation from August 2017 until December 2019, when the Foundation terminated her

employment. Bender alleges that the Foundation and Defendant Avon Community School

Corporation were her joint employers. She claims Defendants violated the FMLA and Title VII

and retaliated against her for requesting FMLA leave and due to her gender. Defendants jointly

filed a motion for summary judgment [Filing No. 85], arguing they are entitled to judgment as a

matter of law on all of Bender's claims. Unfortunately, Bender did not include a proper

statement of material facts in dispute with her response, as required by S.D. L.R. 56-1. Making

matters worse, Bender misrepresents evidence offered in support of her claims. By ignoring and

failing to properly address a large portion of the facts Defendants presented, Bender has

conceded many material facts, thereby establishing that the Foundation terminated her due to her

unprofessional behavior.

A large portion of Defendants' argument relates to a threshold issue: whether either

Defendant was a covered employer under the FMLA or Title VII. As discussed below, the

Foundation is entitled to summary judgment because it only has one employee. Thus, it is not a

covered employer under the FMLA or Title VII. Whether the School jointly employed Bender is

a question of fact, and these facts are enough in dispute to preclude summary judgment on this

basis. However, even if the School jointly employed Bender, other uncontested facts

demonstrate she did not request FMLA leave, and that Bender was not discriminated against

because of her gender. Therefore, Defendants' motion for summary judgment [Filing No. 85] is

granted.

II. Background1

From August 2017 until December 3, 2019, Bender was the Executive Director of the

Avon Education Foundation, and the Foundation's sole employee. [Filing No. 89-1, at ECF p.

3.] The Foundation is a public school foundation formed under Indiana Code 20-26-5-22.5.

[Filing No. 89-2, at ECF p. 1.] The Foundation is a separate entity from the Avon Community

School Corporation, with a separate governing board. [Filing No. 89-1, at ECF p. 9.] The sole

purpose of the Foundation is to support the School Corporation. [Filing No. 89-2, at ECF p. 1.]

The School Corporation, by contrast, is a public school corporation formed under Indiana Code

20-23-4 that is governed by a five-member elected board. [Filing No. 89-4, at ECF p. 1.]

1 Contrary to S.D. Ind. L.R. 56-1, Bender did not include a Statement of Material Facts in

Dispute in her response brief. Rather, Bender gave her argument section this label without

setting forth a specific section containing the material facts she disputes, as required by the local

rules. Thus, while at the summary judgment stage the Court construes the facts in the light most

favorable to the non-moving party, Bender's failure to follow the local rules effectively means

that Bender has conceded the bulk of these background facts, unless otherwise noted. See

generally Farmer v. Town of Speedway, 62 F. Supp. 3d 842, 846 (S.D. Ind. 2014) ("In sum, the

parties are cautioned that compliance [with] the Local Rules and this Court's practices is

mandatory, and there can be serious consequences for non-compliance.").

While employed as Executive Director, Bender reported trouble in her interactions with

then-President of the Foundation, Angela Lee. [Filing No. 89-3, at ECF p. 7.] However, Bender

repeatedly refused to turn over evidence related to her conflict with Lee. [Filing No. 89-3, at

ECF p. 14.] In addition, Bender referred to people as "shitheads" in communication with a

Foundation board member; repeatedly made disparaging comments about Foundation board

members; insinuated that a board member bribed another member; described her interactions

with Foundation board members as "amateur hour"; and misrepresented her relationship with a

potential Foundation board member to whom Bender disclosed internal Foundation

communications and disparaged board members. [Filing No. 89-1, at ECF p. 21-23, 31; Filing

No. 89-15, at ECF p. 2; Filing No. 89-7, at ECF p. 12-13.]

On March 11, 2019, Bender shared a doctor's note with the Foundation, written on a

prescription sheet, which stated: "Pt. shouldn't be working more than 40 hours per week on a

routine basis." [Filing No. 94-5, at ECF p. 1.] Four days later, she emailed Foundation board

member Jamie Turner advising her that she was "at over 45 hours since Sunday and over 120

since March 1" and that she had planned to take the day off. [Filing No. 89-12, at ECF p. 2.]

Turner replied with her understanding that Bender was supposed to be getting support from her

interns, but that ultimately "it's your responsibility." Turner stated that moving forward, she

would need time logs and to know in advance Bender's vacation days. She asked for logs every

Friday morning and for Bender to email her when she was at 30 hours. [Filing No. 89-12, at

ECF p. 2.] Bender described Turner's response as micromanaging and giving her additional

tasks by asking for weekly time logs. [Filing No. 89-1, at ECF p. 14-15.]

Bender attended a meeting on November 8, 2019, with Shane Sommers and two other

board members, who investigated Bender's allegations regarding her working relationship with

Lee. [Filing No. 89-1, at ECF p. 39.] Bender heard Sommers make sexist comments about

women at that hearing. [Filing No. 89-1, at ECF p. 37.] Specifically, Bender testified that

Sommers made a comment about a woman working at AutoZone and stated that this made him

embarrassed, so he sends his wife there now instead. [Filing No. 89-1, at ECF p. 37.] At the

meeting, Bender interjected when Sommers spoke and asked why he was talking. Sommers

described the interruption as hostile and asked why she was taking such a hostile tone. Bender

unilaterally announced that the meeting was terminated and left. [Filing No 89-1, at ECF p. 38-

39.] That same day, Sommers notified Bender that since the meeting had ended without

finishing the discussion, and due to the nature of her reaction, she would be placed on paid

administrative leave until the Foundation board had time to discuss the matter further. [Filing

No. 89-3, at ECF p. 23; Filing No. 89-18, at ECF p. 1.]

In a letter to Bender dated November 27, 2019, the Foundation stated that it placed

Bender on administrative leave because of her unprofessional conduct in interactions with board

members, inappropriate comments about board members, and failure to provide passwords and

account information. [Filing No. 89-18, at ECF p. 1.] Dr. Margaret Hoernemann, an ex officio,

non-voting member of the Foundation board, reviewed a draft of this letter and provided editorial

assistance, but she was not involved in the decision to place Bender on leave and did not

authorize sending the letter. [Filing No. 89-7, at ECF p. 12-14.] On December 3, 2019, the

Foundation terminated Bender. [Filing No. 89-1, at ECF p. 5; Filing No. 89-19, at ECF p. 1.].

The Foundation's stated reason for firing her was "a loss of confidence in you as a result of your

unprofessional conduct." [Filing No. 89-19, at ECF p. 1.]

Meanwhile, Bender filed the underlying complaint in this matter on November 26, 2019,

alleging that Defendants violated the FMLA and took actions in retaliation for Bender seeking

FMLA leave. [Filing No. 1.] Bender later amended her complaint to include both FMLA and

Title VII claims against Defendants. [Filing No. 67.] On March 19, 2021, Defendants filed their

joint motion for summary judgment, which now pends. [Filing No. 85.]

III. Discussion

Summary judgment is appropriate if "the movant shows that there is no genuine dispute

as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R.

Civ. P. 56(a). The Court must view the facts and draw all reasonable inferences in the light most

favorable to Bender, the non-moving party. See, e.g., Driveline Sys., LLC v. Artic Cat, Inc., 936

F.3d 576, 579 (7th Cir. 2019). "A genuine issue of material fact exists if the evidence is such

that a reasonable jury could return a verdict for the nonmoving party. Speculation is not

sufficient to survive summary judgment; there must be evidence." Khungar v. Access

Community Health Network, 985 F.3d 565, 572-73 (7th Cir. 2021) (internal citations and

quotation marks omitted).

A. Applicability of FMLA and/or Title VII

As a threshold matter, Defendants contend that the Foundation is entitled to summary

judgment because it is not a covered employer under either the FMLA or Title VII. In addition,

Defendants contend that both the Foundation and School Corporation are entitled to summary

judgment because they were neither a joint nor integrated employer of Bender. [Filing No. 89, at

ECF p. 10.] To qualify as an employer under the FMLA, one must employ 50 or more

employees. See 29 U.S.C. § 2611(4)(A)(i)-(ii). For Title VII to apply, a company must have 15

or more employees. See 42 U.S.C. § 2000e(b). However, federal courts have also recognized

that an entity other than the direct employer may be held liable as a "joint employer" only if it

exerted significant control over the employee. See, e.g., Whitaker v. Milwaukee Cnty.,

Wisconsin, 772 F.3d 802, 810-11 (7th Cir. 2014) ("[A]n entity other than the actual employer

may be considered a 'joint employer' only if it exerted significant control over the employee.

Factors to consider in determining joint employer status are (1) supervision of employees' day-

to-day activities; (2) authority to hire or fire employees; (3) promulgation of work rules and

conditions of employment; (4) issuance of work assignments; and (5) issuance of operating

instructions." (Internal citations, quotation marks, and emphasis omitted)). See also

Moldenhauer v. Tazewell-Pekin Consol. Comms. Cntr., 536 F.3d 640, 644 (7th Cir. 2008) ("[F]or

a joint-employer relationship to exist, each alleged employer must exercise control over the

working conditions of the employee, although the ultimate determination will vary depending on

the specific facts of each case.").

(i) Avon Education Foundation

The uncontested facts demonstrate that the Foundation had only one employee—Bender.

One employee is insufficient for either the FMLA or Title VII to apply. Even if the Foundation

were found to be a joint employer, the only allegation is that they had one potential joint

employee—once again, Bender. This is still not enough to meet the necessary threshold for the

FMLA or Title VII. Bender briefly argues that the integrated employment doctrine applies and

dictates that Bender was employed by both the Foundation and the School. [Filing No. 94, at

ECF p. 6.] However, Bender does not even attempt to demonstrate how the relevant law on

integrated employment applies to her situation. Defendants note that the Seventh Circuit has

significantly limited the application of integrated employment in discrimination cases, finding it

only applies where a party can pierce the corporate veil, where a company has been broken up

into small pieces to avoid antidiscrimination laws, or where the non-employing company directs

discriminatory action by the employing company. See Papa v. Katy Indus., Inc., 166 F.3d 937,

942 (7th Cir. 1999). Bender made no attempt to argue that any of these conditions apply, and

there are no factual allegations supporting any of these circumstances. The Foundation was not

created as part of the School Corporation and later broken off to avoid liability under

antidiscrimination laws, nor was it created as a small entity separate from the School Corporation

with the specific purpose of avoiding liability under antidiscrimination laws. [Filing No. 89-1, at

ECF p. 9.] Therefore, Defendants' motion for summary judgment is granted as to the Foundation

because it is not a covered employer under the FMLA or Title VII.

(ii) Avon Community School Corporation

There is no dispute that the School employed enough employees to be a covered

employer under both FMLA and Title VII. Rather, the question is whether the School indirectly

employed Bender, as either a joint or integrated employer with the Foundation, and thus can be

held liable for alleged violations of FMLA and Title VII. As with the Foundation, Bender's

response only sets forth the relevant law on integrated employment but otherwise does not

attempt to demonstrate how that law applied to her situation. [Filing No. 94, at ECF p. 6-7.]

Thus, the integrated employer argument fails. However, whether the School Corporation

employed Bender as a joint employer is a closer question that requires review of the specific

facts in this case. See, e.g., Grady v. Affiliated Computer Servs. ACS, No. 1:13-cv-342-TWP-

MJD, 2015 WL 1011355, at *4 (S.D. Ind. Mar. 4, 2015) ("The alleged employer must exercise

control over the working conditions of the employee, although the ultimate determination will

vary depending on the specific facts of each case.").

Bender argues that she was employed by the School because (1) she was on the School's

payroll; (2) the School believed Bender to be its employee; (3) Bender had access to the School's

facilities and benefit programs; (4) Bender executed forms that revealed her status as an

employee of the School; and (5) the School and Foundation shared employee resources and both

controlled Bender's work. [Filing No. 94, at ECF p. 8-9.] Viewing the facts in the light most

favorable to Bender, there is a question of fact as to whether the School employed Bender.

First, the School paid Bender's salary and benefits. Bender received W-2 federal tax

forms from the School for 2017, 2018, and 2019. [Filing No. 94-1, at ECF p. 7.] However,

while Bender's pay was processed through the School's payroll, the Foundation ultimately

reimbursed the School for her pay. In fact, Bender, in her role as Executive Director, signed the

reimbursement checks from the Foundation to the School. [Filing No. 89-1, at ECF p. 6-7.] The

Foundation's tax returns, which Bender also signed in her role as Executive Director, indicate

that the Foundation paid 100% of its compensation to one employee: Bender. [Filing No. 89-8.]

The fact that the School had Bender on its payroll is not of itself indicative of a joint employer

relationship. See, e.g., Moldenhauer, 536 F.3d at 645 ("Turning to the facts in this case,

Moldenhauer stresses the 'laundry list' of services that Tazcom received from Pekin, including

payroll and insurance providers. But, as in Moreau, Tazcom contracted with Pekin for the

provision of those services, which is insufficient to establish a joint-employment relationship. . . .

This holding is consistent with the purpose behind the small-employer exception.").2

Bender argues that the School believed Bender was its employee. What the School

"believed" is not the question; the overarching issue, noted below, is how much control the

2 Bender incorrectly claims that the School represented to the Indiana Department of Workforce

Development that Bender was its employee. In making this claim, Bender cites to an Exhibit 5,

which she describes as a "Representation by School to Indiana Department of Workforce

Development." [Filing No. 94, at ECF p. 27.] However, Bender did not attach any Exhibit 5 or

a document otherwise matching this description with her response. Defendants submitted this

document to the Court, and it shows that Bender represented to the Department of Workforce

Development that she worked for Avon Community School Corporation; the representation was

not made by the School Corporation. [Filing No. 102-1.]

School had over Bender's work. In support of her argument, Bender offers the opinion of Jon

Becker, counsel for the Foundation. [Filing No. 94-3.] Defendants counter that Becker's

opinion, attached as Filing No. 94-3, is misrepresented, irrelevant, and inadmissible. [Filing No.

98, at ECF p. 8.] Filing No. 94-3 contains a screenshot of an email from Becker to Bender,

which Bender misrepresents as an affirmation that Bender was not a Foundation employee. As

Defendants point out, Becker's opinions are attorney-client privileged communications, and the

client is the Foundation, not Bender. Bender may not waive that privilege, and her attempt to

interject these privileged communications must be barred because the Foundation protected and

did not waive the privilege.3

Next, Bender argues that she was employed by the School because she had access to the

School's facilities and benefit programs. Bender had an office in the School's administrative

building, as well as an identification badge that allowed access to the School facilities and a

School email address. [Filing No. 96-1, at ECF p. 6, 9; Filing No. 94-2, at ECF p. 2.] Bender

received a link to the School employee handbook and was told it would govern her employment.

[Filing No. 94-2, at ECF p. 3.] The School allowed Bender to participate in its 403(b) retirement

program. [Filing No. 95-1, at ECF p. 8; Filing No. 94-2, at ECF p. 2.] These facts could support

a finding that the School jointly employed Bender.

3 Defendants produced evidence that Plaintiff's exhibit [Filing No. 94-3] was subject to a claw-

back request identifying the document as an inadvertently produced privileged communication.

[Filing No. 98-3.] Defendants argue that the Court should strike the exhibit and impose

appropriate sanctions. Bender made no attempt to file a sur-reply and address these allegations.

The Court finds the use of this document and the misrepresentation of its contents concerning,

and the lack of acknowledgment of the issues with doing so alarming. The Clerk is directed to

strike Filing No. 94-3. The Court declines to impose sanctions for this inappropriate filing, other

than admonishing Bender's counsel for attempting to use this obviously confidential document

out of context and after failing to appropriately acknowledge the claw-back request.

Once again, however, the Court must point out that Bender's response brief contains

additional misrepresentations and drafting errors. Bender claims she received training from the

School but misrepresents deposition testimony from Jon Becker and Kristen Ewing that does not

actually support her claim. [Filing No. 94-2, at ECF p. 2.] In fact, Becker was asked whether he

was aware Bender received training by Avon Schools, and he replied, "No." [Filing No. 95-6, at

ECF p. 4.] The page of Ewing's deposition cited only mentions a document listing "the training

program" but otherwise provides no context for her testimony. [Filing No. 95-1, at ECF p. 11.]

Bender also cites to "Becker Aff. ¶ 11," but Bender does not have any exhibit containing an

affidavit from Becker. Upon closer inspection, the Court believes Bender intended to cite to

Bender's affidavit at paragraph 11, but the Court should not have to correct counsel's errors and

is under no obligation to scour the record to find the evidence intended to support an argument.

See, e.g., Greer v. Bd. of Educ. of City of Chicago, 267 F.3d 723, 727 (7th Cir. 2001) ("[A]

lawsuit is not a game of hunt the peanut. Employment discrimination cases are extremely fact-

intensive, and neither appellate courts nor district courts are obligated in our adversary system to

scour the record looking for factual disputes[.]" (Internal citation, quotation marks, and ellipses

omitted)).

Bender also argues that she executed forms that revealed her status as an employee of the

School. Bender signed a form that allowed the School to conduct a criminal background check.

[Filing No. 94-2, at ECF p. 2; Filing No. 96-1, at ECF p. 8.; Filing No. 96-2, at ECF p. 1.] She

also signed an information technology agreement provided by the School. [Filing No. 94-2, at

ECF p. 2; Filing No. 95-1, at ECF p. 4.] However, while Bender claims the form identified her

as a School employee, it appears Bender wrote "AEF" in a blank spot on the form, an obvious

reference to the Foundation, not the School. [Filing No. 96-3, at ECF p. 1.] Moreover, forms

used by the School to process Bender's pay and grant her access to the computer network

disavowed that she was an employee of the School Corporation.4

Finally, Bender argues that the School and Foundation shared employee resources and

both controlled her work. As an example of shared resources, Bender cites evidence that a

School receptionist distributed fundraising tickets for a Foundation event. [Filing No. 96-1, at

ECF p. 12.] This sort of overlap could support finding that the School and the Foundation shared

resources.

However, Bender describes the following three factual claims as "the most telling facts

related to control," and the Court notes concerns with all of them. First, Bender claims, as

evidence that the School controlled her work, that she received emails directing her to clock in

and adjust her hours. [Filing No. 94, at ECF p. 10.] Yet Bender testified that she did not clock

in. [Filing No. 89-1, at ECF p. 17.] One of the emails, which was sent to many employees,

stated:

About a dozen of us indicated interest in hearing the beautiful AHS Choir. They

will sing at Rotary first and should arrive about 7:40ish. Since ALL CALL isn't

working you may just want to come to the Board room and/or we will spread the

word. Having attended the Madrigal Dinner last night, I can tell you that you are

in for a wonderful treat. If your hours start later and you wish to join us, please

clock in so you are compensated when you are here.

[Filing No. 89-14, at ECF p. 1.] This email very clearly is not a direction to Bender to clock in.

Rather, it related to an event and included a reminder to clock in that was only applicable to

time-clock employees. Second, Bender argues that Dr. Hoernemann specifically directed

4 For example, the form entitled "Support Staff Request to Hire" includes the following added

language: "This is only to activate Technology and Payroll. Not an actual ACSC Employee."

[Filing No. 89-9.] Another form, titled "Certified Staff-New Hire/Transfer" contains notations

stating "Non-ACSC employee" and "N/A" next to designations for applicable organizational

chart and leave approver. [Filing No. 89-10.]

Bender's termination. [Filing No. 94, at ECF p. 10.] However, Bender overstates Dr.

Hoernemann's testimony and relies on a draft termination letter. [Filing No. 89-7, at ECF p. 12-

14.] Third, Bender claims that the first individual Sommers notified that he had placed Bender

on administrative leave was Dr. Hoernemann. [Filing No. 94, at ECF p. 10.] Once again,

however, Bender cites to an exhibit Bender did not provide the Court.

Bender plays fast and loose with some evidence and facts, and many of Bender's

arguments are unpersuasive or misleading. Nevertheless, the facts viewed in the light most

favorable to Bender present at least a question of fact as to whether the School could be

considered Bender's "employer" for purposes of FMLA and Title VII. Thus, the Court must

address the underlying claims.

B. Request for FMLA Leave

Even assuming the School jointly employed Bender, there is an obvious issue with her

underlying claims: Bender never requested, and thus was not denied, FMLA leave. There is no

dispute that Bender did not directly seek FMLA leave. Rather, Bender argues:

In this case, questions of fact preclude the Court from entering summary

judgment in Defendants' favor on Bender's FMLA claim. Although it is true that

Bender may not have specifically referenced the FMLA in her requests to the

School and to the Foundation for accommodations, she was not required to cite

the statute to take advantage of the statute's benefits.

[Filing No. 94, at ECF p. 15.]

The Seventh Circuit described the shifting responsibilities of employees and employers

under the FMLA in Lutes v. United Trailers, Inc., 950 F.3d 359, 364 (7th Cir. 2020):

The FMLA entitles an eligible employee to take up to twelve work weeks

of leave when the employee has a serious health condition that renders him unable

to perform his position. It is unlawful for an employer to interfere with an

employee's attempt to exercise his FMLA rights.

The employee and the employer have shifting responsibilities under the

FMLA. Where the need for leave is unforeseeable, . . ., the employee must

provide notice of his intent to take leave to the employer as soon as practicable

under the circumstances. The notice must provide sufficient information for an

employer to reasonably determine whether the FMLA may apply to the leave

request. Such notice may include a that a condition renders the employee unable

to perform the functions of the job.

(Internal citations and quotation marks omitted). Lutes also notes that "[t]he employee does not,

however, need to be aware of his FMLA rights to invoke them: '[t]he employee need not

expressly assert rights under the FMLA or even mention the FMLA, but may only state that

leave is needed.' " Id.

Thus, the problem is not that Bender failed to mention the FMLA, but even more

straightforward: she did not request leave. Rather, she presented the Foundation with a doctor's

note that said: "Pt. shouldn't be working more than 40 hours per week on a routine basis."

[Filing No. 94-5, at ECF p. 1.] Bender argues that "[r]ather than accommodate Bender's need for

time off, the Foundation increased her hours and demanded that she work sixty (60) to eighty

(80) hours per week." [Filing No. 94, at ECF p. 15.] In support, she cites to paragraphs 26 and

41 her affidavit. A review of the cited evidence provides no support for the claim that the

Foundation increased her hours and demanded she work 60 to 80 hours per week. Rather, at

paragraph 26 of her affidavit, Bender complained generally that she faced a work culture that

"emphasized forced overtime and lack of support." [Filing No. 94-2, at ECF p. 5.] And at

paragraph 41, she described an email exchange with Jamie Turner where Bender informed

Turner that she was already over 45 hours for the week and had planned to take the day off.

[Filing No. 94-2, at ECF p. 6.] Neither of these statements supports the claim that Bender's

employer demanded she work 60 to 80 hours.

On the contrary, during her employment with the Foundation, Bender self-reported

working 30 hours per week. [Filing No. 89-1, at ECF p. 4.] While Bender alleged in her

complaint that board members demanded she work 60 to 80 hours per week, she has provided no

evidence supporting this claim. And the Foundation claims it neither demanded nor expected

Bender to work more than 40 hours per week. [Filing No. 67, at ECF p. 5; Filing No. 89-3, at

ECF p. 16.] Even assuming all of the facts as Bender presents them as true, Bender still has not

set forth any evidence that she requested FMLA leave.

Moreover, after receiving the doctor's note in question, the Foundation attempted to help

meet the restrictions contained in the note. Yet Bender resisted those efforts, describing the

Foundation's response as micromanagement. After receiving Bender's doctor note, the

Foundation asked Bender to keep track of her hours and report when she reached 30 hours in a

week. [Filing No. 89-1, at ECF p. 14-15.] A few days later, the Foundation provided Bender

with a more detailed plan, including tracking hours in the office, providing a list of appointments

to determine whether board members could cover any, sharing passwords with board members

so they could provide assistance, limiting time on an upcoming grant revision project, turning a

project over to interns, documenting vacation days, listing short and long term priorities, and

limiting work to weekdays. [Filing No. 89-27, at ECF p. 1-3.] Bender responded to this

message by expressing her appreciation in the Foundation's efforts to be mindful of her hours

and noted that her hours should be "normalizing" over the next couple months. [Filing No. 89-

27, at ECF p. 1.] However, in her deposition, she described the requests that she track her hours,

keep a calendar, and work regular office hours as "abusive." [Filing No. 89-1, at ECF p. 35-36.]

In addition to not requesting leave, Bender has not set forth evidence that she was

afflicted with a "serious health condition" that rendered her unable to perform the functions of

her position, as required by 29 U.S.C. § 2612(a)(1)(D). See, e.g., Stevenson v. Hyre Elec. Co.,

505 F.3d 720, 727 (7th Cir. 2007) ("Providing notice is not enough to receive FMLA benefits.

An employee must also have . . . a serious health condition. The FMLA itself defines a serious

health condition as an illness, injury, impairment, or physical or mental condition that involves—

(A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing

treatment by a health care provider." (Internal citations and quotation marks omitted)). Bender

has failed to set forth any genuine issue of fact related to a serious health condition that rendered

her unable to perform her position. She also never stated to her employer that she was unable to

perform her position. At best, she presented a note saying that she should not work overtime

regularly. This evidence does not identify a serious health condition as required by the FMLA.

See, e.g., Guzman v. Brown County, 884 F.3d 633, 638-39 (7th Cir. 2018) ("Here, it is not

altogether clear that Guzman suffered from sleep apnea in 2013. . . . Even if Guzman did suffer

from sleep apnea, . . . she has offered no evidence that she received inpatient care for that

condition or was subject to continuing treatment for that condition at the time of her leave

request. To the contrary, she concedes that she was not seeing any medical professional for her

sleep apnea and had thrown away her CPAP machine. Guzman has accordingly failed to

introduce any evidence capable of establishing that she suffered from a serious health condition

under the FMLA." (Internal citations and quotation marks omitted)).

Finally, because Bender did not request FMLA leave, her employer could not have

retaliated against her for such request. Moreover, as noted above, Bender did not dispute the

facts Defendants set forth showing that Plaintiff was fired for her own unprofessional behavior.

As noted above, Bender referred to people as "shitheads" in communication with a Foundation

board member; repeatedly made disparaging comments about Foundation board members;

insinuated that a board member bribed another member; described her interactions with

Foundation board members as "amateur hour"; and misrepresented her relationship with a

potential Foundation board member. The Foundation's stated reason for firing Bender was a loss

of confidence in her as a result of her unprofessional conduct. Thus, since Bender has admitted

that the basis for her termination was not pretextual, she is not entitled to relief for purported

retaliation. Accordingly, Defendants' motion for summary judgment is granted as it relates to

Bender's claims for FMLA violations and retaliation on the basis of seeking FMLA leave.

C. Discrimination based on gender

Bender also alleges that she was discriminated against based on her gender. [Filing No.

67, at ECF p. 7.] Defendants argue that the only gender-related action Bender identified was a

single comment by Sommers, when he said he was embarrassed when a woman worked on his

car. Defendants contend that the facts demonstrate Bender was terminated, not because of her

gender, but because of her behavior. [Filing No. 89, at ECF p. 29.] Bender, by contrast, claims

that questions of material fact preclude the Court from entering summary judgment in

Defendants' favor on this claim. [Filing No. 94, at ECF p. 19.] However, since Bender failed to

properly dispute the facts presented, nothing material remains in dispute. In addition, while

Bender provides a laundry list of bullet points attempting to support her gender discrimination

claim, only two of the 13 points on the list relate to gender at all. [Filing No. 94, at ECF p. 21-

22.] The remainder of her bullet points simply summarize complaints regarding interactions

with former board member Angela Lee.

Bender has not demonstrated any link between the treatment she received and her sex, as

required to make a prima facie case under Title VII. See, e.g., Purtue v. Wisc. Dep't of Corr.,

963 F.3d 598, 602 (7th Cir. 2020) ("When a defendant moves for summary judgment, the

'singular question' for the district court is whether the plaintiff has introduced evidence that

would permit a reasonable factfinder to conclude that the plaintiff's . . . sex . . . caused the

discharge or other adverse employment action."). For instance, Bender claims she was required

to work 60 to 80 hours per week, which was more than any other employee. [Filing No. 94, at

ECF p. 20.] However, Bender does not attempt to connect her claim that she had to work more

than anyone to her gender. Similarly, she states that board members (specifically, Lee) screamed

obscenities at her during meeting. Even assuming that is true, Bender has described an

unenjoyable work environment, but her allegation does not connect in any way to gender-based

discrimination. Bender made no attempt to show that the treatment she allegedly endured at the

Foundation was somehow connected with Sommers's statement relating to a woman working at

AutoZone. See, e.g., Overly v. KeyBank Nat. Ass'n, 662 F.3d 856, 865 (7th Cir. 2011) ("[T]here

is a general lack of other circumstantial evidence from which to infer that any of Bielecki's

conduct—such as his reassigning of Overly's territories, temporarily being denied access to client

accounts, or reporting her to the compliance office—was the result of intentional, gender-based

discrimination. The only alleged, gender-related comment was Bielecki calling Overly 'cutie,'

something by all accounts he stopped when told she did not like its use. Moreover, its use is not

linked to or contemporaneous with any adverse employment action."); O'Neal v. City of

Chicago, 588 F.3d 406, 411 (7th Cir. 2009) ("O'Neal fails on her sex discrimination claim for the

same reason as her retaliation claim: she failed to adduce any evidence indicating that her

actionable transfers were because of her sex.").

Furthermore, once again, Bender did not contest Defendants' allegation that the

Foundation terminated her due to her unprofessional behavior. As discussed in relation to

Bender's FMLA claim, by not disputing the facts presented indicating that the Foundation fired

Bender because of her unprofessional actions, disparaging comments, and their general lack of

confidence in her ability to complete her role in a professional manner, Bender has admitted that

the basis for her termination was not pretextual. Thus, the record does not contain sufficient

evidence to permit a reasonable fact finder to conclude that Bender was fired in retaliation for

her gender or an otherwise protected activity. See, e.g., Lewis v. Wilkie, 909 F.3d 858, 866 (7th

Cir. 2018) ("To prevail on a Title VII retaliation claim, the plaintiff must prove that (1) [she]

engaged in an activity protected by the statute; (2) [she] suffered an adverse employment action;

and (3) there is a causal link between the protective activity and the adverse action."); Khungar,

985 F.3d at 578 ("The question is: 'Does the record contain sufficient evidence to permit a

reasonable fact finder to conclude that retaliatory motive caused the discharge?’ " (Internal

citation and quotation marks omitted)). Therefore, Defendants’ motion for summary judgment is

granted as it relates to Bender's claims of Title VII discrimination and retaliation.

IV. Conclusion

The Foundation is not an employer under either FMLA or Title VII. And while there are

disputed facts as to whether the School could be considered Bender's employer for FMLA or

Title VII purposes, there are no genuine issues of material fact regarding these underlying

claims. Bender never requested FMLA leave, and she was not discriminated against based on

her gender. Rather, the undisputed facts show that she was terminated because of her own

unprofessional behavior. Accordingly, the Clerk is directed to strike Filing No. 94-3, and

Defendants’ joint motion for summary judgment is granted. [Filing No. 85.]

Date: 7/13/2021 /_¢ (

Tim A. Baker

United States Magistrate Judge

Southern District of Indiana

18

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