Petition for Writ of Certiorari — Caskey v. Colgate-Palmolive Co. (No. 08-550)

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Sursme Cour. °S.

AY) FILE

o"\ No. 0846-550 och 22 1008

ome “OFFICE OF THE CLERK

In The

Supreme Court of the Anited States

TRACY L. CASKEY,

Petitioner,

COLGATE-PALMOLIVE COMPANY and

HILL'S PET NUTRITION, INCORPORATED,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

PETITION FOR A WRIT OF CERTIORARI

RICHARD L. DARST

Counsel of Record for Petitioner

COHEN, GARELICK & GLAZIER

8888 Keystone Croussing Boulevard

Suite 800

Indianapolis, Indiana 46240

(317) 573-8888

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

; :

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QUESTIONS PRESENTED

Is evidence of similarly situated employees

required to prove discrimination by the indirect

method when there is other circumstantial evi-

dence of discrimination?

May evidence of the treatment of other employ-

ees not similarly situated, such as employees who

are more responsible than plaintiff, be considered

to prove discrimination?

Does a judgment against a plaintiff in one case

preclude a different plaintiff in a different case

from litigating a similar issue, and should this

case be remanded to the court of appeals for re-

consideration in light of the recent decision of

Taylor v. Sturgell, 128 S.Ct. 2161 (2008)?

PARTIES TO THE ?ROCEEDINGS

The petitioner is Tracy L. Caskey.

The respondents are Colgate-Palmolive Company and

Hill’s Pet Nutrition, Inc.

;

}

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TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ....................:0cceeeeeeees i

PARTIES TO THE PROCEEDINGS ................... ii

pe FP Be Nips 6) | yy | - vi

PETITION FOR WRIT OF CERTIORAR .......... 1

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Nee i > capansoneses 1

STATUTORY PROVISIONS INVOLVED............. 1

STATEMENT OF THE CASE. ....................:2c00ce0s 4

REASONS FOR GRANTING THE PETITION... 20

I. The Court Should Grant Certiorari To

Clarify That Evidence Of Similarly Situ-

ated Employees Is Not Required To Prove

Discrimination By The Indirect Method

When There Is Other Circumstantial Evi-

dence Of Discrimination............................ 20

A. The decision of the Court of Appeals

for the Seventh Circuit has decided

an important federal question in a

way that conflicts with relevant deci-

UE GF IDS isin sn cstceccccesicednenusicsa 20

B. The decision of the Court of Appeals

for the Seventh Circuit conflicts with

decisions of other United States

courts of appeals on the same impor-

IIE ciciitah concdutendenidiviacisteicetabadesie 30

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SOR PT Oe a Pee OT Oa PENS, Ere ee AP Seep eS ae a ere es SS ery eee =, * in

TABLE OF CONTENTS — Continued

Page

II. The Court Should Grant Certiorari To

Clarify That Evidence Of The Treatment

Of Other Employees Not Similarly Situ-

ated, Such As Employees Who Are More

Responsible Than Plaintiff, May Be Con-

sidered In The Indirect Method To Prove

Discrimination Against Plaintiff............... 32

III. The Court Should Remand This Case To

The Court Of Appeals For Further Consid-

eration In Light Of The Recent Decision Of

Taylor v. Sturgell, 128 S.Ct. 2161 (2008),

Which Held That A Judgment Against A

Plaintiff In One Case Does Not Preclude A

Different Plaintiff In A Different Case

From Litigating A Similar Issue................. 33

I odedcictn ales dpninsscccansivedsestidimeweisebeaeas 35

APPENDIX

Opinion of the Court of Appeals for the Seventh

ee A Us BN ieestcccsvwensenticccsecscocenccectene App. 1

Judgment of the Court of Appeals for the

Seventh Circuit, July 24, 2008. ...................... App. 18

Entry on Defendant’s Motion for Summary

Judgment, United States District Court for

the Southern District of Indiana, June 9,

TABLE OF CONTENTS -— Continued

Page

Final Judgment, United States District Court

for the Southern District of Indiana, June 9,

«Statute Involved, Section 703 of the Civil

: Rights Act of 1964, 42 U.S.C. § 2000e-2(a) ... App. 82

TABLE OF AUTHORITIES

Page

CASES

Back v. Hastings On Hudson Union Free

School District, 365 F.3d 107 (2d Cir. 2004)........... 30

Beck v. United Food and Commercial Workers

Union, Local 99, 506 F.3d 874 (9th Cir. 2007) ....... 32

Bender v. Hecht’s Dept. Stores, 455 F.3d 612 |

a aeeibibnbioompices 30

Bodett v. CoxCom, Inc., 366 F.3d 736 (9th Cir.

ESSE ES ESO IE ROLES LSER TPCT Te Te OMT TOO 30

Bright v. Hill’s Pet Nutrition, Inc., 510 F.3d 766

ES ES ree arene aS ae 17, 18, 34

Caskey v. Colgate-Palmolive, Inc., 438 F.Supp.2d

EERE REN een ee nna NN 1

Caskey v. Colgate-Palmolive, Inc., 535 F.3d 585

i dilseeiiloonadacei 1

Cook v. CSX Transp. Corp., 988 F.2d 507 (4th

TIT EAE AE IER MOREE SAAT IS NOOR I IS ARO OD 31

Culwell v. City of Fort Worth, 468 F.3d 868 (5th

Riad ssa sec aecasoibpllgiableiiadiedatdusactatees 31

Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003).....23, 31

Faas v. Sears, Roebuck & Co., 532 F.3d 633

i ciladbiubeunmbouanbonaloded 31

Furnco Constr. Corp. v. Waters, 438 U.S. 567

sak as scdslcchamncinadaenaaiabebecienel 21

vii

TABLE OF AUTHORITIES — Continued

Page

Gates v. Caterpillar, Inc., 513 F.3d 680 (7th Cir.

EINE SIRS ee SIONAL RSE CO REO 8 SECO 25

George v. Leavitt, 407 F.3d 405 (D.C. Cir. 2005)........ 32

Graham v. Long Island R.R., 230 F.3d 34 (2d

FREER EI PSR SRN er OOO Nera EN APOC PeD 32

Helmsworth v. Quotesmith.Com, Inc., 476 F.3d

I od ssa rmenpiipdionnnaligiaction 21, 22

Hoffman-Dombrowski v. Arlington Intern. Race-

course, Inc., 254 F.3d 644 (7th Cir. 2001)............... 21

Holtz v. Rockefeller & Co., Inc., 258 F.3d 62 (2d

EET OR Res Re TOT REN PE yy EP CO 30

Isaacs v. Hill’s Pet Nutrition, Inc., 485 F.3d 383

A IEEE isha ocak saicheidbactousssesnsesesmnibévtise 15, 17, 34

Lewis v. City of Chicago, 496 F.3d 645 (7th Cir.

at Cnleinepen 21

Lucas v. Chicago Transit Authority, 367 F.3d

Neen nn ck caupsedanuiantadonerss 25

Luks v. Baxter Healthcare Corp., 467 F.3d 1049

I id sh chstaidnciisenaiindersoddondnidbiiuiaabeitteniscssvede 31

Macy v. Hopkins County School Bd. of Educ.,

484 F.3d 357 (6th Cir. 2007) ..............cccccsccesccesecesees 32

Maniccia v. Brown, 171 F.3d 1364 (llth Cir.

TE ils idea dddiuodbinbecs 31

McDonnell Douglas Corp. v. Green, 411 US.

Nidhi dithinccdciniasctnasenonuntininipiedndabisentetunsiins passim

Nguyen v. Gambo BCT, Inc., 242 Fed.Appx. 483

I I fic de sacar ehsdenndpynnseslilatasiadbaiiaibipachdiiala 31

TABLE OF AUTHORITIES -— Continued

Page

O’Connor v. Consolidated Coin Caterers Corp.,

STEERER ee ae ROS MTT A 29

Patterson v. McLean Credit Union, 491 U.S.

SEER Ey SU ER BA REY OCS Sy CED 29

Peterson v. Hewlett-Packard Co., 358 F.3d 599

NN TD iia intcrenrciinanscianstsqehinnindeboiieitestibaniceemennedd 30

Reeves v. Sanderson Plumbing Products, Inc.,

ESET ATS eS IE ATE EE 34

Riggs v. AirTran Airways, Inc., 497 F.3d 1108

SESS rca Sats Ohh EPs Re epee ae 32

Rogers v. City of Chicago, 320 F.3d 748 (7th Cir.

SSE ERALE PSR # ieee a oe OTS Bee HCA ee 21, 22

Rudin v. Lincoln Land Community College, 420

ee ee Fe ND vi vecstcdeccvacnctsnssaniiovcnoaneses 21, 22

Sheehan v. Daily Racing Form, Inc., 104 F.3d

IIE IED sic ciicavnicistidetcknideensasbasttindonsices 21, 22

St. Mary’s Honor Center v. Hicks, 509 U.S. 502

I isis icisnordisnslarsdinlibasisisnandabbhiasicilgtaiaagatsapanabuannaddommmeaicmaliie 29

Swierkiewicz v. Sorema N.A., 534 U.S. 506

District casestheinigniiitaiiaccdlianaiesbabemidininabesieansicausieaainiell 21

Taylor v. Sturgell, 128 S.Ct. 2161 (2008)....... 33, 34, 35

STATUTES AND RULES |

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I es wsacletenssebiniincnianasnieibadaaa 4

I. Ee IE sciireninscccrverstariseromisicripncnininniaiin 4

TABLE OF AUTHORITIES — Continued

Page

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;

PETITION FOR WRIT OF CERTIORARI

Petitioner Tracy L. Caskey respectfully prays

that this Court grant a writ of certiorari to review the

judgment and opinion of the United States Court of

Appeals for the Seventh Circuit entered in this case

on July 14, 2008.

OPINIONS BELOW

The July 24, 2008 opinion of the Court of Appeals

is reported at 535 F.3d 585 and it is set out at pages

App. 1 to App. 17 of the Appendix. The June 9, 2006

District Court Entry on Defendant’s Motion for Sum-

mary Judgment is reported at 438 F.Supp.2d 954 and

it is set out at pages App. 19 to App. 79 of the Appen-

JURISDICTION

The Seventh Circuit filed its opinion on July 24,

2008. This petition for certiorari is timely in that the

petition is filed within 90 days of July 24, 2008. The

Court has jurisdiction pursuant to 28 U.S.C.

§ 1254(1).

STATUTORY PROVISIONS INVOLVED

This case involves the interpretation and applica-

tion of Title VII of the Civil Rights Act of 1964 (“Title

VII”), 42 U.S.C. § 2000e et seg. The specific relevant

statutory provisions involved in this Petition are 42

U.S.C. §§ 2000e-2(a) and 2000e-3(a).

42 U.S.C. § 2000e-2(a) provides:

(a) Employer practices

It shall be an unlawful employment

practice for an employer —

(1) to fail or refuse to hire or to dis-

charge any individual, or otherwise to

discriminate against any individual with

respect to his compensation, terms, con-

ditions, or privileges of employment, be-

cause of such individual’s race, color,

religion, sex, or national origin... .

42 U.S.C. § 2000e-3(a) provides:

(a) Discrimination for making charges, tes- —

tifying, assisting, or participating in en-

forcement proceedings

It shall be an unlawful employment

practice for an employer to discriminate

against any of his employees or appli-

cants for employment, for an employ-

ment agency, or joint labor-management

committee controlling apprenticeship or

other training or retraining, including on-

the-job training programs, to discrimi-

nate against any individual, or for a labor

organization to discriminate against any

member thereof or applicant for member-

ship, because-he has opposed any practice

made an unlawful employment practice

by this subchapter, or because he has

made a charge, testified, assisted, or

participated in any manner in an inves-

tigation, proceeding, or hearing under

this subchapter.

This case also involves the Family and Medical

Leave Act (“FMLA”). The relevant statutory provi-

sions of that act are 29 U.S.C. § 2615(a) and 2613(a),

which provide as follows:

29 U.S.C. § 2615(a) provides:

(a) Interference with rights

(1) It shall be unlawful for any em-

ployer to interfere with, restrain, or

deny the exercise of or the attempt

to exercise, any right provided un-

der this chapter.

(2) It shall be unlawful for any em-

ployer to discharge or in any other

manner discriminate against any

individual for opposing any practice

made unlawful by this chapter.

29 U.S.C. § 2613(a) provides:

(a) In general

An employer may require that a request

for leave under subparagraph (C) or (D)

of section 2612(a)(1) of this title be sup-

ported by a certification issued by the

health care provider of the eligible em-

ployee. ...

STATEMENT OF THE CASE

Petitioner Tracy L. Caskey brought this case for

sex discrimination under Title VII, deniel of FMLA

leave, and retaliation for complaining about sex

discrimination, for needing FMLA leave, and for

having worker’s compensation claims under state law.

Record Docket Number 1, page 2 (“R. 1”). The bases

for federal jurisdiction in the United States District

Court are federal statutes 28 U.S.C. § 1331 (federal

question), 28 U.S.C. § 1342(3) and (4) (civil rights), 28

U.S.C. § 1367 (supplemental jurisdiction), 29 U.S.C.

§ 2617 (FMLA), and 42 U.S.C. § 2000e-5 (Title VII).

Id.

Tracy L. Caskey is a female who began her

employment with the respondents at the Hill’s Pet

Nutrition Richmond, Indiana plant in 1995. App. 2.

She became an extruder operator in 1997. R. 76, Ex.

Al, Caskey Aff. {] 45-47, see App. 2.

Caskey was a good employee. Caskey’s Area

Leader testified in her deposition that Caskey was

one of one of the best extruder operators that the

defendants had. R. 67, 148:21-22. The area leader

testified in her deposition that Caskey was the best

troubleshooter on the team. R. 67, 148:23-24.

However, the Area Leader noted that Caskey had

absences. R. 67, 148:20-21, 149:4-5. Caskey had taken

Family and Medical Leave for a complicated preg-

nancy, and her FMLA leave was posted for everyone

to see. R. 76, Caskey Aff. {¥ 120-124.

;

The respondents, Colgate and Hill’s, did not post

a notice explaining the FMLA provisions or provide

information concerning the procedures for filing

complaints of violations of the FMLA with the Wage

and Hour Division of the Department of Labor. (The

statements of fact are taken from the Brief of Appel-

lant filed in the court of appeals with citations to the

record which, for brevity and readability, are not

further repeated here, except for citations to the

Appendix to this petition.) Instead, the plant followed

a practice of giving to the employees the respondents’

form FMLA application, called a “packet,” when the

employees returned from leave caused by sickness.

For example, in 2002 and 2003, the plant gave

Caskey FMLA packets for such things as sore throat

and congestion and upper respiratory infection and

sinusitis. App. 30-31. The plant approved the leave

for sore throat and congestion as FMLA leave. The

plant did not approve the leave for upper respiratory

infection and sinusitis as FMLA leave, because the

doctor did not sign the papers until late on the drop

dead date that the plant gave to Caskey as the final

day for a medical certification.

In July, 2001, Caskey had an on-the-job worker’s

compensation injury to her right wrist. The Safety

Team Leader took her to the doctor and told Caskey

that if Caskey got a prescription for medication, it

was a recordable accident, which meant that it was a

data point against her. Caskey did not want a data

point against her, so she tried to work with the pain,

which aggravated the injury.

From September 2001 to November 2001, Caskey

suffered cramping abdominal pain from multiple

ovarian cysts, which resulted in her going to the

emergency room on October 1, 2001. The respondents

counted her absent when she was in the hospital

emergency 2oom and did not give her FMLA leave. In ©

November 2001, Team Leader Jenkins told Caskey

and another female employee that he was going to

write them up for attendance, but he did not tell male

employees who had more absences. In February 2002,

Jenkins back-dated a Performance Improvement Plan

(“PIP”) against Caskey for being absent. Sixty-four of

the hours which were stated against Caskey were

also for bereavement leave, which was not held

against male employees.

The female employees at the Richmond plant

were usually assigned to do the dirty work of daily

cleaning, while the men were assigned to do the

preventative maintenance on the machines. Some

areas of the plant did not have any female employees.

The men would not train the women to do preventa-

tive maintenance. The men were sent for training on

extruders, but Caskey was not allowed to go to train-

ing on extruders. Caskey had many suggestions for

improvements and the Operations Manager told her

that her suggestions were good, but she was not given

credit or bonuses for her suggestions, and men were

given credit for her suggestions. Caskey applied for

the position of Special Projects, but the plant gave the

job to a male employee. The male employees used

vulgar language toward the female employees, the

}

males talked about sexual activities, and the males

had pornography at work.

Starting in about 1999, Caskey and another

female employee complained about the different

treatment of the female employees and Caskey said

that the male employees at the plant were a good old

boys club. In 2002, female employee Carol Isaacs

complained about the different treatment of female

employees from male employees. From about Novem-

ber 2002 to May 2003, Caskey supported the com-

plaints of Carol Isaacs by speaking up for her at team

meetings with managers present and by speaking up

for her to her Area Leader and the Operations Man-

ager. The Area Leader testified that one of the issues

with Caskey was that she told people exactly how she

felt, and they knew where she stood. After Caskey

had used FMLA leave and had supported the com-

plaints of discrimination by Carol Isaacs, the manag-

ers retaliated against her by making false allegations

against her, by putting her in Second Stage Individ-

ual Improvement Plan (“IIP”), by denying her FMLA,

by making her a target for termination, by making

three attempts to terminate her, and by terminating

her.

On February 21, 2003, Caskey broke her wrist in

an on-the-job injury, the Safety Team Leader took her

to the hospital emergency room, and the hospital put

her wrist in a cast. Caskey tried to work, but the pain

and nausea were too much, and she was off work on

February 21, 22, and 23. The plant knew that

Caskey’s wrist was broken, that the hospital had put

’

her wrist in a cast, and that she could not work on

February 21, 22, and 23, because of the pain and

nausea. However, the plant did not give Caskey

FMLA leave papers or a “drop dead” notice that if she

did not turn in an FMLA application and medical

certification, she would be given an unexcused ab-

sence. Instead, the plant counted her absent for

February 22 and 23, and within 6 days of her broken

wrist, on February 27, 2003, placed her in an IIP for

absences, including the days when she was unable to

work because she had a broken wrist. The IIP was a

stage toward termination.

On March 3, 2003, just a few days after Caskey’s

worker’s compensation injury of a broken wrist, the

Human Resources Manager recommended that

Caskey be placed on Decision-Making Leave (“DML”)

because she had a worker’s compensation injury of a

broken wrist. The plant claimed that Caskey was at

fault for the injury, because the plant claimed that

there was an “at risk” side of the extruder, but there

was not an “at risk” side of the extruder when Caskey

broke her wrist. Caskey was one of the best extruder

operators and knew how to run an extruder. She was

also the best troubleshooter on the team. The plant

admitted that there was no Standard Operating

Procedure (“SOP”) for the extruder, which could have

designated a side as “at risk.” After Caskey’s injury, a

committee headed by the H. R. Manager stated that

the primary cause of the accident was the plant’s wet

floor and also decided that one side of the extruder

was an “at risk” side. After Caskey’s accident, the

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plant told Caskey to write an SOP for the extruder,

and she did so. There had been no SOP for the ex-

truder before that time. On March 12, 2003, the plant

placed Caskey on DML for the worker’s compensation

injury that was not her fault.

The plant also added another allegation to the

DML. That allegation was that Caskey ran bad

product, but that was not her fault either. On the

night of March 4, 2003, Caskey’s extruder was not

operating properly. The pressure on the extruder

pushing out kibbles of dog food product was surging,

which caused many of the kibbles of product to be too

long and too short. Caskey reported to the men in

Tech Systems the surging extruder producing kibbles

too long and too short. Tech Systems, which was

responsible for maintaining the machines, came to

Caskey’s extruder, but the men could not solve the

problem. Caskey reported the surging computer to

the man in Computer Integrated Manufacturing

(“CIM”), he came to the extruder, but he could not

solve the problem, either. Caskey reported the surg-

ing extruder to her Shift Optimization Technician

(“SOT”), male employee Chi Adams. No area leader

(also called team leader at various times) or other

manager was present on night shifts at that time,

and the Shift Optimization Technician acted as the

assistant area leader during that time. The male SOT

could not solve the surging extruder problem, either.

The men in Tech Systems, CIM, and Caskey’s SOT

told Caskey to keep the machine running, and she

followed their instructions. App. 53. Caskey did not

- -

miss any of her quality checks, but between the

scheduled quality checks, she missed some of the

short and long product. The plant did not put the

product on hold or regrind the product to bw put back ~~

through the extruder again.

Caskey also showed that other male coworkers

ran bad product and were not disciplined. App. 57.

The defendant did not produce material differences

between plaintiff and the male employees. The dis-

trict court stated that Caskey did not show any

differences, other than one male whose product did

not reach the packaging area. App. 57. Caskey’s

product was shipped without question, until the plant

retaliated against her. Caskey testified that Mike

Holt ran product so nasty that no dog would eat it

and not a word was said to him. R. 77, Ex. AK, p. 108.

The respondents, who knew the facts of each em-

ployee, presented no differences.

On April 14, 2005, the Human Resources Man-

ager requested to terminate Caskey for being absent

on April 14, 2003, but Caskey had called her team on

April 12, 2003, she told them that she would be on

leave April 14, and they had told her okay. The man-

agers knew that they did not have grounds to termi-

nate Caskey, so on April 23, 2003, they gave Caskey a

second DML for an absence on April 14, 2003 when

she had called her team and they had no objection to

her taking the day off.

The H. R. Director stated that Caskey appeared

to be on target for termination. The defendants

provided the plant with a script to talk to Caskey

about a “transition to other employment.” The script

also talked to her about a “separation package,” and

told her to take two days to consider “a transition out

of the company.” The H. R. Manager told Caskey to

write another letter of commitment if she wanted to

keep her job, and she did so. Caskey looked in her

personnel file, she saw that the H. R. Manager had

already requested to terminate her, and she became

even more depressed.

On April 24, 2003, Caskey told the Operations

Manager that she was not coming to work, because

she was going to the doctor, her voice was trembling,

her kids were sick and threw up all over, her hands

were shaking, her grandfather was about to die, and

her nerves were shot. She told the Operations Man-

ager that she went to the doctor, she had hives, and

the doctor had increased her medicine. Caskey’s

doctor found that the was suffering from anxiety,

depression, urticaria rash, and recommended a

psychiatrist through Caskey’s work. Caskey’s doctor

stated that Caskey was to be off work from April 12 to

May 12, 2003. The Operations Manager and the H. R.

Manager told Caskey that she was not fit to be at

work, that the Operations Manager was relieving her

of duty with pay pending medical evaluation, and

that he would be contacting her about an independ-

ent medical examination (“IME”).

On May 7, 2003, Caskey’s orthopaedic doctor sent

a report to the plant stating that Caskey was to

have left handed-arm work only and she was not

discharged from their care. On May 8, 2003, Caskey’s

regular doctor diagnosed her with depression, anxi-

ety, and a dislocated right shoulder.

~On May 12, 2003, the plant gave Caskey a DML

memorandum falsely accusing her of taking an emer-

gency vacation day on April 6, when she did not take

a vacation day on April 6 and she worked April 6. The

May 12 DML also accused Caskey of being late on

April 23, when April 23 was a Decision-Making Leave

day. The May 12 DML also accused Caskey of being

‘late on April 24, when she was on approved FMLA

leave from April 24 to May 12. She was not required

to be at work at all on April 24, because she was

approved for FMLA leave. However, the plant held

her lateness against her in spite of the fact that she

was approved for FMLA leave on April 24.

Several days before Saturday and Sunday, May

17 and 18, 2003, Caskey had scheduled a vacation for

her daughter’s softball parades and games starting

the season. On May 16, 2003, Caskey’s area leader

and the Human Resources Manager told her that she

could not have May 17 and 18 as vacation days, and

that Caskey had no vacation days because her short

term disability for April 24 to May 12 had not been

approved and the failure to approve her short term

disability would cause a denial of her FMLA leave for

those dates. Caskey told them that it sounded illegal

- and violated her FMLA rights.

On May 20, 2003 Caskey went to the employers’

EAP counselor. Caskey was taking Lexapro for panic

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attacks and hives related to the work at the plant.

During the counseling session, Caskey discussed

quitting her job, but when she left the counseling

session, she knew that she had to keep her job to

support her children. By May 21, 2003, Caskey was

unable to leave the house to take her daughter to

school, her daughter was getting in trouble for not

going to school, and Caskey had taken her children to

her mother-in-law because Caskey could not care for

them. Caskey was not able to care for her children,

she was not able to leave her house, and she was not

able to work or function.

At about 6:10 a.m. on Monday, May 21, 2003,

Caskey called team member Ron Henson. She told

him that she was unable to come to work because she

was sick, and he said okay. He asked her if she was

coming to work the following day, and she told him

that she was not. App. 38. Caskey had also previously

scheduled May 22, 2003 as a vacation day.

At about 9:15 a.m. on May 21, 2003, an unknown

person from work called Caskey and left a message

that her short term disability had been approved,

which meant that her FMLA leave was approved

from April 24 to May 12, her vacation days would not

be taken for that time, and she kad vacation days left.

After Caskey told her team that she was at home

sick, no one from the plant asked her how she was, no

one asked her about her condition, and no one asked

when she would be able to come to work. No one gave

Caskey an FMLA packet or any other papers for her

medical conditions on May 21, 2003 and the following

days. Instead, on May 21, 2003, the H. R. Manager

tried to terminate Caskey again with another Em-

ployment Termination Request. The managers above

the H. R. Manager were not supportive of termina-

tion.

Caskey did not work on May 21, 22, and her next

scheduled working day on rotating shifts, May 27,

2003. Caskey’s worker’s compensation injury file on

her broken wrist was not closed until May 23, 2003.

On May 28, 2003, the H. R. Manager made a third

request to terminate Caskey, specifically charging

Caskey with not calling the plant for three consecu-

tive work shifts. The H. R. Mans zer included in his

reasons to terminate Caskey the fact that she had

been on FMLA-related leave from April 24, to May 12.

He also included as a reason to terminate Caskey, the

fact that she was late to work on April 24, when by

May 28, 2003, the day of April 24 had already been

approved for FMLA leave. In his May 28, 2003 re-

quest to terminate Caskey, the H. R. Manager omit-

ted the fact that Caskey called the plant on May 21

and told her team that she was sick at home and

would not be able to work.

The H. R. Manager did not communicate with

Caskey to ask how she was, to ask the condition of

her sickness, to ask if she was able to work, to send

her FMLA papers for her sickness which caused her

to miss three days of work, or to ask her anything

else. Instead, on May 29, 2003, the H. R. Manager

sent Caskey a letter of termination on the ground of

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;

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;

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;

missing work for three consecutive days without

calling in to the plant. Caskey had called in to the

plant and told the plant that she was unable to come

to work on May 21 and May 22 because she was sick.

She had also previously scheduled May 22 as a vaca-

tion day. On May 21, the plant had also contacted

Caskey and notified her that her short term disability

had been approved for April 24 through May 12,

which meant that her vacation did not have to be

applied to those days, and so, she had additional

vacation days available. When the plant notified her

that her short term disability had been approved, the

plant did not raise any concern about her being off

work because she was sick or ask her for any other

information.

The defendants moved for summary judgment.

Caskey provided extensive evidence in opposition to

the motion for summary judgment, including the

affidavits of Caskey, Carol Isaacs, Elizabeth Bright,

and other employees of the Richmond plant. The

same affidavits of Isaacs and Bright were submitted

to the court in the cases of Isaacs and Bright. Before

the Caskey decision, the court of appeals had found

substantial evidence of sex discrimination at the

Hill’s Pet Nutrition Richmond plant.

In the case of Isaacs v. Hill’s Pet Nutrition, Inc.,

485 F.3d 383 (7th Cir. 2007) the court of appeals

stated as follows:

Ample evidence would allow a trier of fact

to conclude that Isaacs was subjected to a

eb Ahde!

§ >

pervasively hostile environment, designed by

the male workers to drive women from the

plant or at least express domination and con-

trol over them. Isaacs testified by deposition

that her team leader_in Packaging refused to

train her, unless she listened to him describe

his sexual exploits and desires. When she

told him to stop, all that stopped was the

training — the sexual comments continued

over the radio . . . and whenever they met.

xe * +

When Isaacs moved from Packaging to

Stretchwrap, the two team leaders met to

discuss her, and Isaacs’ new superior (Peb-

worth) picked up where her old one left off.

When she complained, Pebworth “accidently”

ran into her with a forklift spilling 700

pounds of pet food, and remarked: “See what

can happen to you, bitch.” Her car was van-

dalized in the parking lot a few days later.

Pebworth repeatedly tried to get Isaacs to

join him in viewing pornography that he

kept on a computer in the plant. Several

women in addition to Isaacs (including

Caskey) gave evidence that men systemati-

cally made the lives of women in the plant

miserable — and since the team leaders were

the main offenders, other men felt no hesita-

tion in joining this jolly good fun.

A jury could infer that working conditions for

female laborers at Hill’s Pet Nutrition were

materially worse than the conditions for

male laborers, that managers of the firm

knew this, and that they did nothing because

the firm deemed the men’s morale more im-

portant than the women’s welfare. That con-

clusion would be enough to support an award

of damages under Title VII.

485 F.3d at 386-387.

In the case of Bright v. Hill’s Pet Nutrition, Inc.,

510 F.3d 766 (7th Cir. 2007), the court of appeals

again stated that there was evidence of sex discrimi-

nation at the Richmond plant and that the men tried

to get the women to quit. The Bright decision stated

as follows:

Bright presented evidence that the men rou-

tinely vexed the women in an effort to make

them quit. The tactics included unwelcome

sexual overtures and sex-related chatter,

streams of misogynistic invective, refusal to

train (team leaders tried to get women to

view pornographic images on the men’s com-

puters, and when women declined, the men

would declare that they had no time for

training), assigning women to the dirtiest

jobs (which team leaders called “women’s

work”), and threats of violence, some of

which were fulfilled (for example, Bright’s

dog was shot, supposedly as a warning to

her). According to one of Bright’s witnesses,

on being told that men referred to female

workers as “whores,” “cunts,” and “bitches,”

Vanderpool replied: “a hostile work environ-

ment is a productive work environment.” As

we remarked in Jsaacs, 485 F.3d at 387: “A

jury could infer that working conditions for

female employees at Hill’s Pet Nutrition

were materially worse than the conditions

for male laborers, that managers of the firm

knew this, and that they did nothing because

the firm deemed the men’s morale more im-

portant than the women’s welfare.”

510 F.3d at 768-769.

When the court of appeals considered the Caskey

case under the indirect method, the court of appeals

required evidence of similarly situated employees and

stated that the several men involved were not simi-

larly situated. The court of appeals also ignored the

other circumstantial evidence of discrimination and

retaliation at the Richmond plant.

Caskey was placed in Decision Making Leave

(DML) when she slipped on the employers’ wet floor

for a non-existent violation of being on an “at risk”

side of the extruder. There was no policy, practice, or

standard operating procedure stating a side as an “at

risk” side of the extruder before Caskey was injured.

Because the employers had never disciplined anyone

for the non-existent violation, there was no “similarly

situated” employee.

Caskey was also placed in DML for the reason

that her machine ran short and long kibbles after she

reported the problem to the male employees who were

more responsible for the situation than she was, they

could not fix the machine, and they told her to con-

tinue running the machine. The lower courts held

that the treatment of the more responsible men could

not be considered because they were not “similarly

situated” because they had “different positions in the

plant with separate responsibilities and supervisors,

and the few employees with comparable job descrip-

tions lacked the differentiating circumstances of

having excessive unexcused absences or having

sustained a work-related injury.” App. 592.

Caskey was terminated when, in Caskey’s case,

the employer did not follow its practice of giving

employees an FMLA application and request for

medical certification or “packet” when they returned

to work and deciding after they returned to work

whether the employee’s leave qualified for FMLA

leave. The employer did not even follow its practice of

calling the employee to ask the medical condition of

the employee and when the employee planned to

return to work. The plant H. R. Manager who had

been trying to terminate Caskey through the previous

actions causing the DMLs did not claim in the termi-

nation notice that Caskey had not called her team

leader, but rather, he claimed that Caskey did not call

the plant, which was not true. App. 38. Furthermore,

the respondents had no FMLA procedure requiring

employees to call their team leader for FMLA leave.

The district court stated that Caskey did not call her

team leader as required by a previous DML, but

Caskey was not required to call her team leader for

FMLA leave, and the termination notice did not

accuse her of failing to call her team leader. R. 76, Ex.

Al, Att. 117.

For FMLA leave, the respondents followed the

different procedure of the employers giving employees

FMLA applications and requests for medical certifica-

tions or “packets” when they returned to work, and

then, making the decision to allow or disallow FMLA

leave based on the FMLA “packets.” Caskey was

treated differently than all other employees and she

was treated differently than she had been treated

before she supported the complaints of Isaacs and

Bright, before she had a second worker’s compensa-

tion injury, and before she had requested more FMLA

leave. However, the court of appeals held that Caskey

presented no evidence of a “similarly situated” em-

ployee. There were no employees whom the respon-

dents had treated like Caskey, other than the other

female employees whom the respondents also termi-

nated after they complained.

REASONS FOR GRANTING THE PETITION

I. The Court Should Grant Certiorari To

Clarify That Evidence Of Similarly Situ-

ated Employees Is Not Required To Prove

Discrimination By The Indirect Method

When There Is Other Circumstantial Evi-

dence Of Discrimination.

A. The decision of the Court of Appeals

for the Seventh Circuit has decided an

important federal question in a way

that conflicts with relevant decisions

of this Court.

The Court has stated that the indirect method as

set forth in the case of McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973) was never intended to be

rigid, mechanized, or ritualistic. Swierkiewicz uv.

Sorema N.A., 534 U.S. 506, 512 (2002), quoting

Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577

(1978) and McDonnell Douglas, supra, at 802. How-

ever, the Seventh Circuit has applied the Court’s

indirect method in a rigid manner.

The Seventh Circuit requires its courts to con-

sider circumstantial evidence of discrimination and

retaliation, along with direct evidence, in the direct

method, not the indirect method. App. 10-11, 14-16 &

n. 3; Lewis v. City of Chicago, 496 F.3d 645, 651 (7th

Cir. 2007); Helmsworth v. Quotesmith.Com, Inc., 476

F.3d 487, 490 (7th Cir. 2007); Rudin v. Lincoln Land

Community College, 420 F.3d 712, 720 n. 3 (7th Cir.

2005); Rogers v. City of Chicago, 320 F.3d 748, 754

(7th Cir. 2003); Hoffman-Dombrowski v. Arlington

Intern. Racecourse, Inc., 254 F.3d 644, 651-652 (7th

Cir. 2001); Sheehan v. Daily Racing Form, Inc., 104

F.3d 940, 941 (7th Cir. 1997). That application of the

law results in employees who have been discrimi-

nated against not being able to use circumstantial

evidence in the indirect method, which is especially

important when there are no “similarly situated”

employees. In those cases where there are no “simi-

larly situated” employees in existence, plaintiffs’

cases are rejected for lack of the existence of “simi-

larly situated” employees. App. 12, 16.

The Seventh Circuit has recognized that consid-

ering circumstantial evidence only in the direct

method is confusing. App. 15-16 n. 3; Lewis, supra;

Helmsworth, supra; Rudin, supra; Rogers, supra;

Sheehan, supra. The need for action by the Supreme

Court is shown by the admissions of the Seventh

Circuit that its requirement is confusing, by the

statement of the court of appeals in Caskey’s case

that “[bJoth parties” were confused, and by the state-

ment that the confusion is understandable. App. 15-

16 n. 3. However, the Seventh Circuit had adamantly

persisted in considering circumstantial evidence in

the direct method, not the indirect method. App. 14-

16 & n. 3. That has deprived the court of appeals and

the district courts in the Seventh Circuit from consid-

ering circumstantial evidence in the indirect method,

such as in Caskey’s case.

In McDonnell Douglas v. Green, supra, the Court

issued the unremarkable holding that a discrimina-

tion plaintiff, like any other plaintiff in any other

type of case, need not prove a case of discrimination

by a direct method, but rather, may use an indirect

method. In other words, a discrimination plaintiff

need not prove intent to discriminate by direct evi-

dence of admissions of the employer. Rather, plaintiffs

in discrimination cases may prove intent by circum-

stantial evidence, like any other cases, including the

most serious criminal cases. The Court used the term

direct method to mean direct evidence. The Court

used the term indirect method to mean circumstan-

tial evidence. The use of the terms direct and indirect

may have eased the acceptance at that early time of

the holding of the Court that direct evidence of intent

to discriminate is not necessary to prove discrimina-

tion.

Since that time, the Court has repeated that

circumstantial evidence may be used in a discrimina-

tion case like any other case. Desert Palace, Inc. v.

Costa, 539 U.S. 90, 100 (2003). However, the Court

has not clarified where in the direct method and the

indirect method circumstantial evidence may be

considered. Nor has the Court held how circumstan-

tial evidence may be considered in relation to the

McDonnell Douglas framework which has _ been

interpreted as requiring, as in Caskey’s case, the use

of “similarly situated” employees.

The Caskey case is the vehicle for the Court to

give the lower courts guidance that the direct method

means the use of direct evidence and the indirect

method means the use of circumstantial evidence

such as the McDonnell Douglas framework of four

facts and the use of other circumstantial evidence in

other frameworks of circumstantial evidence.

The Caskey case is also the vehicle for the Court

to give the courts guidance that the indirect method

of circumstantial evidence, illustrated by the McDon-

nell Douglas framework of four facts of circumstantial

evidence, does not require “similarly situated” em-

ployees, that other circumstantial evidence can be

used to prove discrimination, and that when the

employers’ treatment of employees is compared, the

same job description, same supervisor, same viola-

tion, and same background are not required, but

rather, go to the weight of the evidence. Some job

descriptions, supervisors, violations and backgrounds

may be more relevant and some may be less relevant

in comparing the employers’ treatment of employees.

The lack of the existence of “similarly situated”

employees occurs in cases where the plaintiff’s job is

unique, in cases where the employers have used a

newly created violation against plaintiff that they

have not used against anyone else, and in cases

where the other relevant employees have been

treated more favorably, but they do not have the same

job description, same supervisor, same violation, or

same background. The method of proof using “simi-

larly situated” employees assumes that the courts are

dealing with situations where there are “similarly

situated” employees that the courts can compare to

plaintiff. The method of proof using “similarly situ-

ated” does not account for situations in which there

are no “similarly situated” employees to compare to

plaintiff favorably or unfavorably.

Er ployers have used the “similarly situated”

“requiret.ent” to argue that there are no employees

similarly situated to most plaintiffs, and therefore,

plaintiffs cannot prove their cases. To argue that

there are no similarly situated employees, employers

have drawn on any number of differences such as

different job description, different supervisor, differ-

ent violation, or different backgrounds. The employ-

ers then argue that the Court requires similarly

situated employees for plaintiffs to prove their cases,

and so, since there is no similarly situated employee

in existence, plaintiffs cannot prove their cases.

Courts, such as the Seventh Circuit in the Caskey

case, have followed those arguments.

Those arguments do not follow the Court’s deci-

sions. The Court did not require similarly situated

employees to be an “element” or a “requirement” for

the indirect method. The court of appeals in Caskey

held that “plaintiff must establish that [s]he received

dissimilar —- and more harsh — punishment than that

received by a similarly situated employee who was

outside the protected class.” App. 11, quoting Lucas v.

Chicago Transit Authority, 367 F.3d 714, 728 (7th Cir.

2004). The court of appeals in Caskey repeated the

following requirements for the required fact of a

similarly situated employee:

A similarly situated employee need not be

“identical,” but the plaintiff must show that

the other employee “dealt with the same su-

pervisor, [was] subject to the same stan-

dards, and had engaged in similar conduct

without such differentiating or mitigating

circumstances as would distinguish [his]

conduct or the employer’s treatment of

[him].”

App. 11, quoting Gates v. Caterpillar, Inc., 513 F.3d

680, 690 (7th Cir. 2008). The court of appeals ac-

knowledged that Caskey showed several male em-

ployees who were not disciplined, but the court of

appeals stated that plaintiff must show a male em-

ployee with a similar job description in order to

establish a prima facie case. The court of appeals

stated:

Caskey points to several male employees

that either worked on the production line the

night of the defective product incident or had

run defective product in the past, and notes

that none of these employees received any

discipline for their actions. These employees

differ from Caskey in material respects; the

majority held different positions in the plant

with separate responsibilities and supervi-

sors, and the few employees with comparable

job descriptions lacked the differentiating

circumstances of having excessive unexcused

absences or having sustained a work-related

injury. Caskey failed to produce evidence of a

male employee with a similar job description

and past inappropriate conduct that received

disparate treatment by Hill’s, and Caskey

cannot establish a prima facie case lacking

this evidence.

App. 12. In addition to requiring evidence of a male

employee who did not have a different position, the

court of appeals did not give any reason why prior

absences of workers in the same position would allow

employers to blame a female employee for following

the instructions of the more responsible male employ-

ees and not give some discipline to the males, if any

discipline was warranted. The male employees were

not given any discipline, not even a reprimand.

The court of appeals also mentioned that Caskey

had a “work-related injury,” but retaliating against

an employee for having a worker’s compensation

claim violates the state law. The statement of the

court of appeals confirms the evidence that the em-

ployer retaliated against Caskey for having a

worker’s compensation claim. That was the injury of

a broken wrist that the respondents said was caused

primarily by the respondents’ wet floor, and the

respondents’ stated that secondarily, she was also on

the “at-risk side” of the extruder when there was no

standard operating procedure of an “at-risk side”

before Caskey’s injury and she did not violate any

existing rule, policy, or procedure.

The court of appeals then stated that “[nJothing

in the record supports a finding that these reasons

were fabrications” showing pretext. App. 12-13.

However, the above described evidence showed that

Caskey did not violate any existing rule, practice, or

procedure of an “at-risk side,” and Caskey followed

the instructions of the more responsible male employ-

ees to continue running her machine when she re-

ported to them that the machine was surging.

The defendant’s termination notice that stated

the reason for Caskey’s termination stated that she

“failed to report to work or call to report off work for

the last three regularly scheduled work days.” R. 76,

Ex. Al, Att. 117. That was a lie also. Caskey called to

report off work on May 21, 2003 and she stated that

she was unable to work on May 21 and 22. App. 38.

Caskey had also previously scheduled May 22 as a

vacation day. R. 76, Ex. Al, | 287.

For retaliation claims, the court of appeals re-

peated the requirement that for the indirect method,

“an employee must establish a prima facie case by

proving that she” was treated less favorably than

similarly situated employees. App. 13. The court of

appeals held that under the indirect method of proof

of retaliation, Caskey’s claim could not survive “be-

cause Caskey has not presented a similarly situated

employee that was treated more favorably.” App. 16.

The court of appeals also stated that Caskey violated

an agreement to have no absences, but of course, an

employer cannot prohibit an employee from taking

statutorily provided FMLA leave and then fail to give

the employee an application for FMLA leave and fail

to give the employee a medical certificate form for a

medical provider to complete for approval of FMLA

leave. The respondents’ termination notice did not say

the reason was an agreement, but rather, failing to

call the plant for three consecutive work days, when

it is undisputed that Caskey called the plant on May

21, 2003 and told the plant that she was too sick to

work on May 21 and 22. App. 38.

On the claim of retaliation for having a worker’s

compensation claim, the court of appeals ignored the

evidence of the timing of the DML against plaintiff

shortly after she had a worker’s compensation claim,

the fact that the DML stated that it was because of

the work-related injury, the fact that the court of

appeals opinion itself stated that Caskey was differ-

ent because she “sustained a work-related injury”

(App. 12), and the fact that the DML was a stage

toward termination. App. 2.

The Court has not required the same job descrip-

tion, same supervisor, or same violation. The Court

has stated early on in the discussion of the indirect

method that the violations to compare only need be of

“comparable seriousness to the” accusation against

plaintiff, not the same violations. McDonnell Douglas,

411 U.S. at 804.

Courts have sometimes called the indirect

method of proof a type of scheme to prove discrimina-

tion. The Court’s indirect method, which was not

supposed to be rigid, has now become so rigid that it

has often become an impossible scheme to prove

discrimination.

The decisions of this Court have indicated that a

prima facie case is made out by showing that employ-

ees outside of plaintiff’s protected class were treated

differently and that the comparisons of the employees

is to take place at the pretext stage. St. Mary’s Honor

Center v. Hicks, 509 U.S. 502, 506 (1993); Patterson v.

McLean Credit Union, 491 U.S. 164, 185-187 (1989).

Where there is other evidence of discrimination, the

fourth factor of someone outside plaintiff’s protected

class, need not be proven. O’Connor v. Consolidated

Coin Caterers Corp., 517 U.S. 308, 312-313 (1996).

B. The decision of the Court of Appeals for

the Seventh Circuit conflicts with deci-

sions of other United States courts of

appeals on the same important matter.

The courts of appeals of the different circuits

have dealt in different ways with these issues that

have been unanswered by the Court. The Seventh

Circuit’s requirement that circumstantial evidence be

considered in the direct method deprives the courts in

the Seventh Circuit of the ability to consider circum-

stantial evidence in the indirect evidence method, as

in Caskey’s case. It also creates confusion in the

courts. App. 15-16 n. 3. The confusion allows courts to

apply the higher standard for direct evidence to the

circumstantial evidence in the direct method.

Other courts of appeals have adopted a standard

of allowing the district courts to consider as the

fourth factor in the McDonnell Douglas indirect

method framework the treatment of similarly situ-

ated employees or other evidence supporting an

inference of discrimination. Bender v. Hecht’s Dept.

Stores, 455 F.3d 612, 623 (6th Cir. 2006); Bodett v.

CoxCom, Inc., 366 F.3d 736, 744 (9th Cir. 2004);

Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603

(9th Cir. 2004); Back v. Hastings On Hudson Union

Free School District, 365 F.3d 107, 121 (2d Cir. 2004);

Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 82 (2d

Cir. 2001).

The Tenth Circuit has also rejected the require-

ment that a plaintiff must prove a similarly situated

employee in disciplinary discharge cases. Nguyen v.

Gambo BCT, Inc., 242 Fed.Appx. 483, 488 (10th Cir.

2007).

The Seventh Circuit does not allow consideration

of all circumstantial evidence in the indirect (circum-

stantial evidence) method, but rather, allows in the

indirect method of proof only a subset of four facts

from the McDonnell Douglass framework. Faas uv.

Sears, Roebuck & Co., 532 F.3d 633, 641 (7th Cir.

2008); Luks v. Baxter Healthcare Corp., 467 F.3d

1049, 1052 (7th Cir. 2006).

Courts frequently mistake the four factors of

possible circumstantial evidence as four “elements.”

App. 55. The four factors of circumstantial evidence

are not required “elements,” because they are only

four facts of circumstantial evidence and not a rigid

required framework. McDonnell Douglas, supra;

Desert Palace, supra.

The Fourth, Fifth, Seventh, and Eleventh Cir-

cuits require that a plaintiff prove more favorable

treatment of a similarly situated employee in order to

establish a prima facie case. Cook v. CSX Transp.

Corp., 988 F.2d 507, 501 (4th Cir. 1993); Culwell v.

City of Fort Worth, 468 F.3d 868, 873 (5th Cir. 2006);

Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir.

1999). The Eleventh Circuit requires that the simi-

larly situated employee be “nearly identical.” Jd.

The Fourth, Fifth, and Seventh Circuits treat

the issue of similarly situated employees more like a

question of law for the court to decide the compari-

sons of the treatment of the employees. The Second,

Ninth, Tenth, and District of Columbia Circuits have

repeatedly held that whether two employees are

-similarly situated ordinarily presents a question of

fact for the jury. Graham v. Long Island R.R., 230

F.3d 34, 39 (2d Cir. 2000); Beck v. United Food and

Commercial Workers Union, Local 99, 506 F.3d 874,

885 n. 5 (9th Cir. 2007); Riggs v. AirTran Airways,

Inc., 497 F.3d 1108, 1117 (10th Cir. 2007); George uv.

Leavitt, 407 F.3d 405, 414 (D.C. Cir. 2005). The Sixth

Circuit has also held that so long as a reasonable jury

could infer that a comparator’s conduct was of compa-

rable seriousness, the decision was for the jury to

decide. Macy v. Hopkins County School Bd. of Educ.,

484 F.3d 357, 369-71 and n. 8 (6th Cir. 2007).

II. The Court Should Grant Certiorari To

Clarify That Evidence Of The Treatment

Of Other Employees Not Similarly Situ-

ated, Such As Employees Who Are More

Responsible Than Plaintiff, May Be Con-

sidered In The Indirect Method To Prove

Discrimination Against Plaintiff.

If the Court prefers not to address the above

important issues, the Court may use the Caskey case

as vehicle to hold that employees who are more

responsible than plaintiff may be considered in the

indirect method as comparator employees to com-

pare the employers’ treatment of plaintiffs to the

employers’ treatment of other employees to prove the

a3? ee Oe Oe eee ee

Vi een ee to eee eee ae ee oe ee ae eS ee Se oo

different treatment of employees. It seems to be a

very clear proposition that plaintiffs such as Caskey

should be able to use evidence in their cases that

male employees who were more responsible than

plaintiff for the situation were treated more favorably

than the female employee was treated. This would

allow the court to issue a more narrow holding, which

would be of some help to the courts which are strug-

gling with how to review discrimination cases on

motions for summary judgment.

Ill, The Court Should Remand This Case To

The Court Of Appeals For Further Con-

sideration In Light Of The Recent Deci-

sion Of Taylor v. Sturgell, 128 S.Ct. 2161

(2008), Which Held That A Judgment

Against A Plaintiff In One Case Does Not

Preclude A Different Plaintiff In A Differ-

ent Case From Litigating A Similar Issue.

Regardless of the Court’s rulings on the above

issues, the Court should remand this case to the court

of appeals for further consideration in light of the

recent decision of Taylor v. Sturgell, 128 S.Ct. 2161

(2008). On review of the motion for summary judg-

ment, the court of appeals refused to even consider

the circumstantial evidence referenced in the other

cases about the sex discrimination at the Richmond

plant, but the court of appeals considered the prior

decisions against the plaintiffs and in favor of the

moving party Colgate in the prior decisions. That

violated the decisions of the Court previously cited

that allowed the consideration of all of the circum-

stantial evidence of discrimination and it violated the

standard for review of motions for summary judg-

ment. Reeves v. Sanderson Plumbing Products, Inc.,

530 U.S. 133 (2000).

The court of appeals stated that it was foreclosed

by the prior decisions from considering the evidence

against Colgate in this case. App. 6. That is contrary

to the new decision of Taylor v. Sturgeli, 128 S.Ct.

2161 (2008) that was issued by the Court after the

briefing and oral argument of this case in the court of

appeals. The evidence in the Caskey case against

Colgate was much more extensive than the evidence

in the prior cases. In the Caskey case, Caskey pre-

sented more than 30C new pages of the Colgate

website, which described in detail Colgate’s position

that all employees in its subsidiary Hill’s were Col-

gate employees, that Colgate was the employer of

employees at the Richmond plant and was taking

applications for employment at the Richmond plant,

that those employees should complain to Colgate,

that there was no Hill’s hotline, and that Colgate

would take appropriate action. R. 101-104. The

evidence also showed that Colgate issued and was

responsible for enforcing the policies. The court of

appeals in Caskey stated that it was foreclosed by

Isaacs and Bright from considering Caskey’s most

viable argument on appeal regarding Colgate’s in-

volvement — that Colgate promulgated the policies

ee ee ee ae

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“4

that directly led to Caskey’s termination. App. 6. That

is contrary to the new Taylor decision.

CONCLUSION

The Court should grant the petition for a writ of

certiorari, and reverse the decision of the Seventh

Circuit Court of Appeals. In the alternative, the Court

should vacate the judgment through summary dispo-

sition and remand the case to the United States

Court of Appeals for the Seventh Circuit for further

consideration in light of the new decision of the Court

in Taylor v. Sturgell, 128 S.Ct. 2161 (2008).

Respectfully submitted,

RICHARD L. DARST

Counsel of Record for Petitioner

COHEN, GARELICK & GLAZIER

8888 Keystone Crossing Boulevard

Suite 800

Indianapolis, Indiana 46240

(317) 573-8888

App. 1

535 F.3d 585 (7th Cir. 2008)

In the

United States Court of Appeals

for the Seventh Circuit

No. 06-2919

Tracy L. CASKEY,

Plaintiff-Appellant,

UV.

COLGATE-PALMOLIVE COMPANY and

HILL’s PET NUTRITION, INCORPORATED,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Indiana,

Indianapolis Division.

No. 04 C 1239 — David F. Hamilton, Chief Judge.

ARGUED OCTOBER 29, 2007 — DECIDED JULY 24, 2008

Before BAUER, RIPPLE and WILLIAMS, Circuit Judges.

BAUER, Circuit Judge. After being disciplined and

ultimately terminated, Tracy Caskey sued her former

employer and its parent company. Caskey alleged

that the defendants (1) interfered with her right to

medical leave, in violation of the Family and Medical

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App. 2

Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq.; (2)

discriminated against her because of her sex, in

violation of Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. § 2000e et seg.; and (3) retali-

ated against her for exercising her rights under the

FMLA, Title VII, and Indiana law. The district court

granted summary judgment for the defendants,

finding that Caskey’s discipline was lawful and that

her termination resulted from three unexcused ab-

sences from work. Caskey now appeals, and for the

reasons stated below, we affirm.

I. BACKGROUND

Hills Pet Nutrition, Inc. (“Hill’s”) produces pet

food, and Colgate-Palmolive Co. (“Colgate”) is the

corporate parent of Hill’s. Caskey began working as a

technician at the Richmond, Indiana plant of Hill’s in

1995. One of her primary duties involved operating

an extruder, a piece of heavy machinery that, at the

Hill’s plant, pushed unprocessea dug food through a

grinder and then sliced the food into smaller pieces

known as “kibbles.” Caskey was terminated after a

series of incidents in 2003, including two extruder-

related accidents and a series of unexcused absences.

At the plant employee work performance issues

were addressed through the Individual Improvement

Process (“IIP”) which included a multi-tiered disci-

pline system: (1) formal coaching; (2) performance

agreement; (3) decision-making leave (“DML”); ana

(4) “deselection” or termination. Hill’s employees who

ss. .

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;

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App. 3

received an absenteeism rate in excess of 2.12% in

one calendar year were subject to discipline. In addi-

tion, Hill’s provides paid leave for illness for its

employees under the FMLA. Because of this and

other paid time-off programs, employees do not have

“sick days.” If an employee is absent, and the absence

does not qualify as Family Medical Leave (“FML”) or

another form of protected leave, the absence is re-

corded as an unexcused absence.

Caskey requested and received FML several

times during her employment with Hill’s, including

from June 27 to September 13, 2000, from April 5 to

15, 2002, from December 13 to 15, 2002, and from

April 24 to May 12, 2003. According to Hill’s, Caskey

also accrued a series of unexcused absences that did

not qualify as FML. As a result of the unqualified

absences, Hill’s placed Caskey in the formal coaching

stage of the IIP in November 2001. On February 27,

2003, Caskey progressed into the performance

agreement stage for having an absenteeism rate

above 3% in the calendar year.

Caskey advanced further in the TP the following

month. On February 21, 2003, Caskey slipped and fell

while operating the extruder. She injured her wrist in

the accident, and the injury was treated as a worker’s

compensation injury. Hill’s claimed that ‘Caskey had

behaved unsafely; an investigatory team reported

that the incident had occurred because Caskey was

standing on the “at risk” side of the extruder. Caskey

claimed that the standard operating procedure for the

extruder at the time of her injury did not include an

“at risk” side of the extruder, and that she fell be-

; App. 4

| cause the floor of the plant was slippery and littered

| with product. Caskey did not return to work for her

next two scheduled shifts on February 22 and 23. A

few weeks later, during Caskey’s shift, over 50,000

pounds of reject product were produced on the plant

line producing kibble — apparently bits of kibble were

inappropriately sized — and 20,000 pounds of the

defective kibble were bagged in the packaging area’

before being discovered. Caskey’s responsibilities

included quality control checks on the plant line that .

produced the defective product. Based on these two

incidents, on March 12, 2003, Hill’s placed Caskey on

the DML stage of the disciplinary process, the final

stage before termination.

a ee Be

While in the DML stage, a Hill’s employee must

sign a letter of recommitment and have “no absences

and use no emergency vacation time for the duration

of the agreement.” In April 2003, Caskey violated the

terms of her letter of recommitment by requesting

vacation time on less than the required forty-eight

hours’ notice. After an internal discussion, Hill’s

decided not to terminate Caskey at that point. Later

in the month, Caskey saw her family doctor for

depression-related symptoms, including “distress,

shaking, and heart racing,” and the physician rec-

ommended that Caskey take time off from work. She

requested and received FML from April 24 to May 12,

2003. The treating physician then released Caskey to

work as of May 12, and did not authorize additional

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App. 5

leave or impose further work restrictions beyond that

date.

After returning from FML on May 12, Caskey

took a birthday holiday on May 16, and took vacation

on May 17 and 18. On May 20, she saw an employ-

ment assistance counselor regarding her depression.

The counselor, like her treating physician, did not

impose any work restrictions on Caskey. The follow-

ing day, Caskey called a teammate at the Hill’s plant

and said she was “sick” and was going to miss work

for the following two days. She then failed to report to

work on May 21, 22, and 27. Caskey did not receive

any medical treatment for these absences, and her

next visit to a physician occurred in August 2003 for

an unrelated condition. On May 29, Hill’s sent Caskey

a letter stating that she had “self-terminated” by not

reporting to work on those three days.

Caskey filed a charge with the EEOC on July 10,

2003 and filed her complaint against Hill’s and Col-

gate on July 28, 2004. On June 9, 2006, the district

court granted summary judgment to both Hill’s and

Colgate on all of Caskey’s claims. This timely appeal

followed.

Il. DISCUSSION

We review a district court’s grant of summary

judgment de novo. Darst v. Interstate Brands Corp.,

512 F.3d 903, 907 (7th Cir. 2008). Summary judgment

is appropriate when there is no genuine issue as to

any material fact and the moving party is entitled to

;

}

App. 6

judgment as a matter of law. Fed. R. Civ. P. 56(c). We

view the record in the light most favorable to the non-

moving party and draw all reasonable inferences in

that party’s favor. Darst, 512 F.3d at 907.

Before addressing Caskey’s specific claims, we

briefly glance at the district court’s finding that

Colgate did not qualify as an “employer” under the

FMLA or Title VII and therefore was entitled to

summary judgment in toto. Colgate was Hill’s corpo-

rate parent, and Caskey presents no evidence to

suggest that Colgate supervised Caskey’s work or was

the decision-maker regarding Caskey’s discipline and

termination. We have previously held in almost

identical circumstances that the proper employer-

defendant would be Hill’s, and not Colgate. See Isaacs

v. Hill’s Pet Nutrition, Inc. and Colzate-Palmolive Co.,

485 F.3d 383, 385 (7th Cir. 2007) (citing (/nited States

v. Bestfoods, 524 U.S. 51, 118 S.Ct. 1876, 141 L.Ed.2d

43 (1998)) (“Colgate was not [the plaintiff]’s employer,

and she offers no reason why an investor should be

liable for Hill’s acts. ... We need not mention Colgate

again.”) (internal citation omitted). Caskey’s most

viable argument on appeal regarding Colgate’s in-

volvement — that Colgate promulgated the policies

that directly led to Caskey’s termination — is fore-

closed by Bright v. Hill’s Pet Nutrition, Inc. and

Colgate-Palmolive Co., 510 F.3d 766, 771 (7th Cir.

2007). As in those cases, we need not mention Colgate

again.

App. 7

A. FMLA Interference

We begin with Caskey’s FMLA interference

claim. The FMLA entitles eligible employees up to

twelve weeks of unpaid leave for, among other things,

a “serious health condition” that makes an employee

unable to perform the functions of his or her position.

29 U.S.C. § 2612(a)(1)\D); Darst, 512 F.3d at 908. The

FMLA makes it unlawful for “any employer to inter-

fere with, restrain, or deny the exercise of or the

attempt to exercise, any right provided by [the

Act].”29 U.S.C. § 2615(a)(1); Darst, 512 F.3d at 908.

Caskey claimed that Hill’s interfered with her

attempt to claim FMLA for the absences on May 21,

22, and 27 of 2003. To prevail on her FMLA interfer-

ence claim, Caskey must establish: (1) she was eligi-

ble for the FMLA’s protections; (2) her employer was

covered by the FMLA; (3) she was entitled to leave

under the FMLA; (4) she provided sufficient notice of

her intent to take leave; and (5) her employer denied

her FMLA benefits to which she was entitled. Burnett

v. LFW Inc., 472 F.3d 471, 477 (7th Cir. 2006). The

district court found that Caskey failed to establish

the third element, because she could not show that

she had a serious health condition, and the fourth

element, because she did not provide sufficient notice

of her intent to take leave.

An employee is entitled to leave under the FMLA

if (1) she is afflicted with a “serious health condition,”

and (2) that condition renders her unable to perform

the functions of her job. 29 U.S.C. § 2612(a)(1)(D). A

App. 8

“serious health condition” is defined as “an illness,

injury, impairment, or physical or mental condition

that involves — (A) inpatient care in a hospital, hos-

pice, or residential medical care facility; or (B) con-

tinuing treatment by a health care provider.” 29

U.S.C. § 2611(11).

Caskey did not present sufficient evidence to

show that the string of absences starting on May 21

was the result of a serious health condition. She

argues that during this time period she suffered from

anxiety, depression, and various other minor ail-

ments, but does not adequately apply these afflictions

to the legal standard. At no point in late May did

Caskey receive inpatient treatment in any medical

facility, so the question becomes whether her condi-

tion qualified as “continuing treatment by a health

care provider.” The FMLA regulations define “con-

tinuing treatment by a health care provider” as

inc'uding, in relevant part, (1) a period of incapacity

of nore than three consecutive calendar days that

also involves either treatment two or more times by a

health care provider or a regimen of continuing

treatment; or (2) any period of incapacity due to a

chronic serious health condition, which requires

periodic treatment by a health care provider. 29

C.F.R. § 825.114(aX2\D, (iii).

These definitions do not apply to Caskey. Though

she had previously received treatment for depression

and anxiety, she offered no evidence of incapacity

relating to the post-May 20 absences, and she did not

receive either treatment two or more times by a

a Oe ed

App. 9

health care provider or a “regimen of continuing treat-

ment.” She therefore was not receiving “continuing

treatment by a health care provider” under

§ 825.114(a)(2\(1). Caskey argues that the fact that she

qualified for FML during April 24-May 12 means that

her condition continued into late May, perhaps suggest-

ing that she suffered a “chronic serious health condi-

tion” under § 825.114(a\(2\iii). Nothing about her FML

during April 24-May 12 suggests that Caskey suffered

from a chronic condition that continued after May 12

and required periodic visits to a health care provider.

Her treating physician specifically stated that Caskey

had no work restrictions after May 12. She did not see

the physician again until August and then for an

unrelated ailment. Caskey had an obligation to show a

serious health condition, and her general testimony

that her condition was serious is insufficient to raise a

genuine issue of materia] fact on this issue. Haefling v.

United Parcel Service, Inc., 169 F.3d 494, 499 (7th Cir.

1999) (“Whether an illness or injury constitutes a

‘serious health condition’ under the FMLA is a legal

question that an employee may not sidestep in the

context of summary judgment merely by alleging [her]

condition to be so.”) Because Caskey neither received

continuing treatment by a health care provider nor

suffered a chronic condition, her various afflictions do

not amount to a serious health condition, and therefore

she had no right to FML on May 21, 22, and 27.’

' Because we find that Caskey did not establish the third

element of her FMLA interference claim, we need not reach the

(Continued on following page)

App. 10

B. Discrimination Based on Sex

Caskey next claims that Hill’s improperly dis-

criminated against her because of her sex by placing

her, and not male employees, on the DML stage of the

disciplinary process after the defective product inci-

dent in March 2003.’ Under Title VII of the Civil

Rights Act of 1964, it is unlawful for employers “to

discriminate against any individual with respect to

his compensation, terms, conditions, or privileges of

employment, because of such individual’s . . . sex... .”

42 U.S.C. § 2000e-2(a)(1). Caskey whanaaad no Means

evidence of discrimination, so we analyze her indirect

proof using the familiar burden-shifting method

district court’s alternate holding that she did not provide

adequate notice. We take note, however, of 29 C.F.R.

§ 825.300(b), which states that if the FMLA posting requirement

in § 825.300(a) is not met, an employer may not take “an

adverse action against an employee, including denying FMLA

leave, for failing to furnish the employer with advance notice of

a need to take FMLA leave.” We have not had occasion to

address the extent of this regulation and whether it applies to

cases such as Caskey’s. We decline to do so today, however,

because the issue was not adequately briefed by the parties, and

because Caskey could not in any event establish that she had a

serious health condition.

* The district court addressed several other alleged inci-

dents of discrimination, including (1) placing Caskey on the

second-stage IIP on February 27, 2003 following the excessive

absenteeism; (2) the extension of the end-date of her original

decision-making leave in May 2003; and (3) her May 2003

termination. The court found all of these incidents lacking legal

sufficiency. Because Caskey did not raise these incidents on

appeal, we address only Caskey’s placement on DML in March

2003.

App. 11

under McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

Ordinarily under McDonnell! Douglas, a plaintiff must

make a prima facie case of gender discrimination by

showing: (1) she is a member of the protected class,

(2) she met her employer’s legitimate expectations,

(3) she suffered an adverse employment action, and

(4) her employer treated similarly situated male em-

ployees more favorably. Peirick uv. Indiana University-

Purdue Univ. Indianapolis Athletics Dept., 510 F.3d

681, 687 (7th Cir. 2007). As the district court correctly

pointed out, in claims of discriminatory discipline

such as this one, “the second and fourth prongs of

McDonnell Douglas merge.” Lucas v. Chicago Transit

Auth., 367 F.3d 714, 728 (7th Cir. 2004). Accordingly,

the analysis of the employer’s expectations falls by

the wayside, and a “plaintiff must establish that [s]he

received dissimilar — and more harsh — punishment

than that received by a similarly situated employee

who was outside the protected class.” Jd. A similarly

situated employee need not be “identical,” but the

plaintiff must show that the other employee “dealt

with the same supervisor, [was] subject to the same

standards, and had engaged in similar conduct with-

out such differentiating or mitigating circumstances

as would distinguish [his] conduct or the employer’s

treatment of [him].” Gates v. Caterpillar, Inc., 513

F.3d. 680, 690 (7th Cir. 2008); Crawford v. Ind. Harbor

Belt RR. Co., 461 F.3d 844, 846 (7th Cir. 2006) (hold-

ing that a similarly situated employee is one who is

“comparable to plaintiff in all material respects”).

’

App. 12

The court below found that Caskey could not

establish a prima facie case because she could not

identify any similarly situated male employee who

was treated any differently than she was. We agree.

Caskey points to several male employees that either

worked on the production line the night of the defec-

tive product incident or had run defective product in

the past, and notes that none of these employees

received any discipline for their actions. These em-

ployees differ from Caskey in material respects; the

majority held different positions in the plant with

separate responsibilities and supervisors, and the few

employees with comparable job descriptions lacked

the differentiating circumstances of having excessive

unexcused absences or having sustained a work-

related injury. Caskey failed to produce evidence of a

male employee with a similar job description and past

inappropriate conduct that received disparate treat-

ment by Hill’s, and Caskey cannot establish a prima

facie case lacking this evidence.

Even if she had such evidence, she would still

have to show that Hill’s legitimate and non-

discriminatory reason for its action was pretext (i.e.,

a “lie”). Perez v. Illinois, 488 F.3d 773, 776 (7th Cir.

2007). She failed to do so. Hill’s stated reasons for

placing Caskey on DML — that she committed unsafe

behavior and produced defective product — were

sufficiently nondiscriminatory. Nothing in the record

supports a finding that these reasons were fabrica-

tions, Caskey’s bald statement that this was a “lie”

’

~# * <> ~

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. a

App. 13

notwithstanding. Without such evidence, summary

judgment is appropriate.

C. Federal and State Law Retaliation

Finally, Caskey challenges the grant of summary

judgment of her FMLA, Title VII, and state law

retaliation claims. To address her federal claims first:

the FMLA makes it unlawful for an employer to

discharge or discriminate against an employee for

opposing a practice made lawful by the Act. 29 U.S.C.

§ 2615(a\(2); Breneisen v. Motorola, Inc., 512 F.3d 972,

977-78 (7th Cir. 2008). Similarly, Title VII protects

employees who complain to their employers about

sexual harassment from retaliation on that basis. 42

U.S.C. § 2000e-3; Bernier v. Morningstar, Inc., 495

F.3d 369, 375 (7th Cir. 2007). We evaluate FMLA and

Title VII retaliation claims in the same manner,

assessing the direct or indirect method of proof. See

Burnett, 472 F.3d at 481 n.5 (7th Cir. 2006) (citing

Buie v. Quad/Graphics, Inc., 366 F.3d 496, 504 n.3

(7th Cir. 2004)). Under the direct method, Caskey

must present evidence of (1) a statutorily protected

activity; (2) a materially adverse action taken by the

employer; and (3) a causal connection between the

two. Humphries v. CBOCS West, Inc., 474 F.3d 387,

404 (7th Cir. 2007). Under the indirect method, an

employee must establish a prima facie case by prov-

ing that she (1) engaged in a statutorily protected

activity; (2) met her employer’s legitimate expecta-

tions; (3) suffered an adverse employment action; and

(4) was treated less favorably than similarly situated

;

‘

;

App. 14

employees who did not engage in statutorily protected

activity. Nichols v. Southern Illinois University-

Edwardsville, 510 F.3d 772, 784-85 (7th Cir. 2007).

Once the prima facie case is established, the burden

shifts to the employer to produce a non-discriminatory

reason for its action; if the employer meets this burden,

the burden shifts back to the employee to demonstrate

that the proffered reason is pretextual. Jd. at 785.

Under the direct method, Caskey satisfies the

first two elements. Caskey engaged in activity pro-

tected by the FMLA: on various occasions from 2000-

2003, Caskey requested and received FML. Caskey

also engaged in activity protected by Title VII:

Caskey supported the discrimination complaints of

her co-worker Carol Isaacs, who filed a charge of sex

discrimination with the EEOC in July 2002. She also

suffered an adverse employment action, though she

has not clearly indicated whether the relevant “ac-

tion” was the second-stage IIP in February 2003 or

her termination in May 2003. Ultimately, however, it

does not matter whether her discipline or her termi-

nation qualifies as the adverse action, because she

has failed to present enough evidence on the third

element-connecting her FML or support of !saacs

with her discipline or termination.

Caskey can rely on two types of evidence in

showing that her protected activity motivated Hill’s

action under the direct method of proof: “direct evi-

dence” or “circumstantial evidence.” Lewis v. School

‘

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App. 15

Dist. # 70, 523 F.3d 730, 742 (7th Cir. 2008).* Direct

evidence is evidence “which (if believed by the trier of

fact) will prove the fact in question without reliance

upon inference or presumption,” which typically

involves an admission by the decision maker regard-

ing the retaliatory intent. Jd. (citation omitted).

Circumstantial evidence “allows the trier of fact to

infer intentional discrimination by the decision-

maker,” typically through a longer chain of infer-

ences. Id. (citation omitted and emphasis in original).

Caskey has presented no direct evidence of a causal

connection for either her FMLA or Title VII retalia-

tion claims, and insufficient circumstantial evidence

for her FMLA claim. Caskey points to some circum-

stantial evidence for her Title VII retaliation claim by

alleging that Hill’s had a “pattern of terminating

female employees who opposed sex discrimination

and sex harassment,” noting the termination of

Isaacs and two other female employees who sup-

ported Isaacs. Caskey suggests that we infer from

these other terminations that she was the latest in a

string of firings related to the Isaacs incident. But her

vague reference to a pattern, without any detail

* Both parties appear to confuse the direct method of proof

with direct evidence of retaliatory or discriminatory intent. See

Rudin v. Lincoln Land Community College, 420 F.3d 712, 720

n.3 (7th Cir. 2005) (observing that such confusion is under-

standable). As we have noted previously, one may proceed under

the direct method of proof using either direct or circumstantial

evidence. Jd. We will examine whether Caskey’s claims can

survive under the direct method of proof using either type of

evidence.

;

‘

‘4

;

App. 16

regarding the context of the other terminations,

creates too sparse a trail to create circumstantial

evidence of a causal connection. Like her FMLA

claim, Caskey’s Title VII claim must fail under the

direct method of proof.

Turning to the indirect method of proof, as with

her sex discrimination claim, her FMLA and Title VII

retaliation claims cannot survive summary judgment

because Caskey has not presented a similarly situ-

ated employee that was treated more favorably.

Moreover, Caskey did not meet the legitimate expec-

tations of her employer. She had progressed through

the disciplinary process to the final stage, she did not

follow the explicit agreement under the letter of

recommitment to have no absences and use no emer-

gency vacation time, and she did not follow the proper

procedures for giving notice of any intended time off.

Caskey cannot show that Hill’s retaliated against her

for exercising her rights under FMLA or Title VII.

Turning finally to her state law wrongful termi-

nation claim, Caskey contends that she was fired in

retaliation for filing a workers’ compensation claim.

Though employment in Indiana is generally at-willi,

Indiana recognizes a cause of action for employees

discharged in retaliation for filing a workers’ compen-

sation claim. Hudson v. Wal-Mart Stores, Inc., 412

F.3d 781, 785 (7th Cir. 2005) (citing Frampton v. Cent.

Ind. Gas Co., 260 Ind. 249, 297 N.E.2d 425 (Ind.

1973)). In order to survive summary judgment on the

claim, the employee must establish a causal connec-

tion between her termination and the filing of her

App. 17

workers’ compensation claim. Jd. (citing Goetzke uv.

Ferro Corp., 280 F.3d 766, 774 (7th Cir. 2002)).

Caskey fails to make a sufficient causal connection

here. She relies heavily on the timing of her discipline

— ie., that she was disciplined shortly after her

injury, and terminated shortly after that. This time-

line omits several other intervening events, including

the series of unexcused absences in late May in

violation of the Performance Agreement. And timing

evidence alone rarely creates a jury issue on causa-

tion. Hudson, 412 F.3d at 787. The district court

correctly found that the dearth of evidence establish-

ing a causal connection doomed her state law retalia-

tion claim.

Iii, CONCLUSION

For the foregoing reasons, the judgment in favor

of Hill’s and Colgate is AFFIRMED.

ice

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App. 18

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

D - WITH ORAL AR NT

Date: July 24, 2008

BEFORE: WILLIAM J. BAUER, Circuit Judge

KENNETH F. RIPPLE, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

No. 06-2919

TRACY L. CASKEY,

Plaintiff-Appellant

Vv.

COLGATE-PALMOLIVE COMPANY and

HILL’S PET NUTRITION, INCORPORATED,

Defendants-Appellees

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division

No. 04 C 1239, David F. Hamilton, Chief Judge

The judgment of the District Court is AF-

FIRMED, with costs, in accordance with the decision

of this court entered on this date.

POR ee eS ee ee Se te eT AMEN tee Sk PE

App. 19

438 F.Supp.2d 954 (S.D. Ind. 2006)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

TRACY L. C» SKEY, )

Plaintiff,

. ) CASE NO.

COLGATE-PALMOLIVE © = }.:04-cv-1239-DFH-TAB

COMPANY and HILL’S

PET NUTRITION, INC., ?

Defendants.

ENTRY ON DEFENDANTS’ MOTION

FOR SUMMARY JUDGMENT

(Filed June 9, 2006)

Plaintiff Tracy Caskey worked as an employee at

defendant Hill’s Pet Nutrition, Inc. (“Hill’s”), a manu-

facturer of pet food. Defendant Colgate-Palmolive is

the parent company of Hill’s. Caskey was terminated

by Hill’s in May 2003. Caskey alleges that defendants

interfered with the exercise of her statutory right to

medical leave pursuant to the Family and Medical

Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601 et seg.

She also alleges that she was subjected to discrimina-

tion based on her sex in violation of Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C.

§ 2000e et seg. Caskey also alleges that defendants

retaliated against her for exercising her rights under

Title VII, the FMLA, and Indiana law. Defendants

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contend that all of Caskey’s discipline was lawful and

that her termination resu)ted from three consecutive

unexcused absences from work.

Defendants have moved for summary judgment

on all claims. As explained below, the court grants the

motion. Caskey has failed to raise a genuine issue of

fact that she was improperly denied FMLA leave on

any occasion. Caskey also has failed to identify a

genuine issue that she was discriminated against

because of her sex in violation of Title VII. Finally,

Caskey has failed to identify a genuine issue that

Hill’s retaliated against her for engaging in activity

protected by Title VII or the FMLA, and she has

failed to come forward with evidence that Hill’s

retaliated against her for filing a worker’s compensa-

tion claim.

Summary Judgment Standard

The purpose of summary judgment is to “pierce

the pleadings and to assess the proof in order fo see

whether there is a genuine need for trial.” Matsushita

Electric Industrial Co., Lid. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986). Summary judgment is

appropriate where the pleadings, depositions, an-

swers to interrogatories, affidavits, and other materi-

als demonstrate that there exists “no genuine issue as

to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Fed. R.

Civ. P. 56(c). Only genuine disputes over material

facts can prevent a grant of summary judgment.

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App. 21

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). A fact is material if it might affect the out-

come of the suit under the governing law, and a

dispute about a material fact is genuine only if the :

evidence is such that a reasonable jury could return a :

verdict for the non-moving part). Id. at 248-49. 4

On a motion for summary jadgment, the moving ,

parties must first come forward and identify those ,

—portions of the pleadings, depositions, answers to

interrogatories, and admissions on file, together with 7

affidavits, if any, which the parties believe demon-

strate the absence of a genuine issue of material fact.

Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.

317, 322-23 (1986). Where the moving parties have

met the threshold burden of supporting the motion,

the opposing party must “set forth specific facts

showing that there is a genuine issue for trial.” Fed.

3 R. Civ. P. 56(e). Local Rule 56.1 requires the party

x opposing a motion for summary judgment to identify

d specific and material factual disputes.

When deciding a motion for summary judgment,

the court considers those facts that are undisputed

and views additional evidence, and all reasonable

inferences drawn therefrom, in the light reasonably

most favorable to the non-moving party. See Liberty

Lobby, 477 U.S. at 255; Baron v. City of Highland

: Park, 195 F.3d 333, 338 (7th Cir. 1999). However, a

: party must present more than mere speculation or

fy conjecture to defeat a summary judgment motion.

The issue is whether a reasonable jury might rule in

favor of the non-moving party based on the evidence

App. 22

in the record. Liberty Lobby, 477 U.S. at 252; Pack-

man v. Chicago Tribune Co., 267 F.3d 628, 637 (7th

Cir. 2001).

Facts for Summary Judgment

The following facts are either undisputed or

reflect the evidence in the light most favorable to

plaintiff Caskey as the party opposing summary

judgment. Adverse facts established by defendants

beyond reasonable dispute are necessarily included in

the narrative.

In March 1995, plaintiff Tracy L. (Greye) Caskey

began working as a technician in Hill’s Pet Nutrition

plant in Richmond, Indiana. Caskey Aff. J 2, 3. The

production areas at Hill’s Richmond plant include

Dry Mix/Bulk, Processing, Packaging, and Stretch-

wrap. Zaleha Aff. 93. From early 2002 through

Caskey’s termination, area leaders (formerly known

as team leaders) supervised technicians working in

the different production areas. Area leaders reported

directly to operations manager Darren Haverkamp.

Id. { 4. Haverkamp, human resources director Jackie

Vanderpool, and human resources manager Michael

Keinath reported directly to plant manager Cathy

Zaleha. Jd. 4 1, 5.

Because Hill’s provides paid leave for illness

under the FMLA and has other paid time-off pro-

grams, it does not also provide employees with “sick

days.” Zaleha Aff. 4 12. An absence that does not

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App. 23

count as FMLA or another form of protected leave is

recorded as an unexcused absence. Id. 4 13.

Work performance issues at Hill’s are addressed

through the Individual Improvement Process (“ITP”),

a tiered disciplinary system comprised of the follow-

ing steps: formal coaching, performance agreement,

decision-making leave (“DML”), and “deselection”

(i.e., termination). Zaleha Aff. { 10. This process was

formerly called the Performance Improvement Proc-

ess (“PIP”). Id. ¥ 9.

Caskey progressed through Hill’s disciplinary

process until she was ultimately terminated in May

2003. In November 2001, Caskey was placed in the

first stage of PIP for excessive absences. Caskey Aff.

Att. 34. On February 27, 2003, Caskey was placed in

the performance agreement stage of IIP. Hill’s

claimed that Caskey had eighty-four hours of non-

protected absences in a twelve-month period. Keinath

Aff. 7 4; Caskey Aff. Att. 62.

On March 12, 2003, Caskey was placed in the

DML stage of ITP. Caskey Aff. Att. 72. Hill’s claimed

that Caskey recently had committed unsafe behavior

and had caused a quality problem. In February,

Caskey slipped and fell on a wet floor when an ex-

truder machine die swung toward her while she

opened the machine to remove a plug. She broke her

wrist and her injury was treated as a worker’s com-

pensation injury. Caskey I Dep. at 85. An Incident

Investigation Team reported that the “root cause” of

Caskey’s accident was that she was standing on the

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“at-risk” side of the extruder. Caskey Aff. Att. 63. In

early March, Caskey was responsible for performing

quality control checks on a plant line producing

kibble. During her shift, over 50,000 pounds of reject

product were produced and approximately 20,000

pounds of this was bagged before the problem was

discovered. Caskey II Dep. at 110, 124, 129; Doyle

Dep. at 186."

Caskey’s decision-making leave required that she

“[hjave no absences and use no emergency vacation

: time for the duration of the agreement.” Caskey Aff.

: Att. 72 at 4. On the morning of April 12th, Caskey

called the Hill’s Plant from Texas to request vacation

time for a shift that started the morning of April

14th. Hill’s contended that Caskey’s request violated

the terms of her DML. Haverkamp and Keinath

spoke with Caskey when she returned from Texas

and obtained her oral agreement to adhere to the

terms of her DML.

From April 24 through May 12, 2003, Caskey was

on FMLA leave. Upon returning from FML, Caskey

worked shifts on May 12 and 13, took a birthday holli-

day on May 16, took vacation on May 17 and 18, and

did not report to work for her next three scheduled

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' Two depositions of the plaintiff are part of the record. The

notation “Caskey I Dep.” refers to the deposition taken on July

1, 2004. “Caskey II Dep.” refers to the deposition taken on April

12, 2005.

App. 25

shifts — May 21, 22, and 27. Caskey I Dep. at 69;

Caskey II Dep. at 7-8; Keinath Aff. J{ 20, 21.

Caskey’s performance agreement required that

she “communicate to [her] Area Leader and team”

any absence and that she not have any unexcused

absences. Caskey Aff. Att. 62. Caskey testified that on

the morning of May 21st, she called a teammate and

told him she was “sick” and would not be in on the

21st or 22nd. Caskey’s decision-making leave noted

that failure to “maintain acceptable levels of per-

formance... could result in termination.” Caskey Aff.

Att. 104. On May 29th, Hill’s sent Caskey a letter

stating that it deemed her to have “self-terminated”

by not reporting to work on May 21, 22, and 27.

Caskey Aff. Att. 117.

Caskey filed a charge with the EEOC on or about

July 10, 2003. Cplt. 7 30. Additional facts are noted

below, keeping in mind the standard that applies on

summary judgment.

Discussion

I. Colgate-Palmolive

Colgate-Palmolive is entitled to summary judg-

ment on all claims. The undisputed evidence shows

that it was not Caskey’s employer and did not direct

or control the acts of which she complains.

The FMLA protects eligible persons who work for

a statutorily defined “employer.” This includes “any

person who acts, directly or indirectly, in the interest

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App. 26

of an employer to any of the employees of such em-

ployer.” 29 U.S.C. § 2611(4)(A)(Gii)d). The Seventh

Circuit has not addressed the scope of this provision

in the context of the FMLA, so the court looks to

cases interpreting similar language from the Fair

Labor Standards Act (FLSA). See 29 U.S.C. § 203(d)

(similar provision in FLSA); Eckert v. Schroeder,

Joseph & Associates, 364 F. Supp. 2d 326, 328 n.1

(W.D.N.Y. 2005) (courts have looked to FLSA cases in

interpreting FMLA definition of employer).

Colgate could be found to be a proper defendant

under the FLSA, and therefore the FMLA, if it “had

supervisory authority over the complaining employee

and was responsible in whole or in part for the al-

leged violation.” Smith v. Univ. of Chicago Hospitals,

2003 WL 22757754, *6-7 (N.D. Ill. Nov. 20, 2003)

(applying FLSA standards in deciding that section

2611(4A)GiMD of FMLA allowed for individual liabil-

ity), quoting Riordan v. Kempiners, 831 F.2d 690, 694

(7th Cir. 1987) (considering individual liability under

FLSA); accord, Eckert, 364 F. Supp. 2d at 327-28 (“the

language of § 2611(4)(A)(iiI) has been interpreted by

a majority of the Courts to allow for liability under

the FMLA against entities or individuals that ‘pos-

sessed the power to control the worker in question’”)

(internal citation omitted).

Similarly, Colgate could be found to be a proper

Title VII defendant: (1) if Caskey could present

evidence that Colgate maintained an employment

relationship with her; (2) if Caskey could pierce the

corporate veil and present evidence that the Hill’s

App. 27

subsidiary is only an alter ego of the parent Colgate;

or (3) if Caskey could present evidence that Colgate

took actions to avoid liability under the discrimina-

tion laws or might have directed the discriminatory

act, practice, or policy of which she complains. Worth

v. Tyer, 276 F.3d 249, 259-61 (7th Cir. 2001). In Worth

v. Tyer, the Seventh Circuit looked to the five factors

of the “economic realities test” to determine whether

an alleged victim of sexual ‘arassment was an em-

ployee of the defendant and thus had a right to sue

under Title VII: (1) the extent of the employer’s

control and supervision over the worker, including

directions on scheduling and performance of work; (2)

the type of job skills required to carry out the work

and whether the skills are learned in the workplace;

(3) the responsibility for cost of the operation (i.e.,

who pays for equipment, supplies, fees, licenses,

workplace, and maintenance of operations); (4) the

method and form of payment and benefits; and (5) the

length of the job commitment and/or expectations.

276 F.3d at 263, citing Knight v. United Farm Bureau

Mutual Ins. Co., 950 F.2d 377, 378-79 (7th Cir. 1991).

Of these five factors, the most important is the right

to control and direct the worker’s actions. /d.; accord,

Alexander v. Rush North Shore Medical Center, 101

F.3d 487, 492-93 (7th Cir. 1996).

Caskey testified that from the time that she and

other employees were hired at Hill’s Richmond Plant,

they were told that they were Colgate employees, that

they needed to follow Colgate instructions, and that

they should direct employment complaints to the

App. 28

Colgate hotline because Colgate “would investigate

our complaints and take action for us.” Caskey Aff.

7 13 (also incorporating co-worker affidavit and

deposition testimony). Despite Caskey’s owa charac-

terization of her employment situation, she has

produced no evidence of objective control of Hill’s

employees by Colgate. Caskey testified that part of

her salary was paid in Colgate preferred stock, see

Caskey Aff. 4 13, but she received her salary and all

benefits from Hill’s. Keinath Aff. ¥¢ 23; Zaleha Aff.

q 17. Although Hill’s employees were obliged to follow

Colgate’s Code of Conduct, see Caskey Aff. 7 17, Hill’s

controlled the discipline, scheduling, and assignment

of work for the employees in its Richmond Plant.

Keinath Aff. 77 24-25; Zaleha Aff. 749 18-19. None of

Caskey’s citations to the record raise an issue of

material fact as to whether Colgate controlled or

directed any of the decisions relevant to this case,

such as Caskey’s work, her discipline, or the handling

of her FMLA and worker’s compensation claims.

Caskey points out that Colgate introduced the

Employee Assistance Program (see Caskey Aff. Att.

14) and that she participated in the program for

depression, which she believes warranted FMLA

leave. Caskey also points out that Colgate provided

the Disability Benefits Program and she argues that

a denial of disability benefits in 2003 led to her

termination. See Caskey Aff. 4 260. Caskey’s own

evidence shows that a third-party provider, and not

Colgate, made her disability benefits determination.

See id. | 279. Finally, Caskey claims that Colgate

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supervised the safety performance of the Hill’s Plant

and that she was forced to “work with pain” after

injuring her wrist in 2002 because accepting prescrip-

tion medication would have counted as a recordable

incident. Jd. [9 128-31, 143-53. Caskey cites no

specific evidence to support her claim about Colgate’s

involvement in plant safety. Regardless, all of these

connections with Colgate are too attenuated to impli-

cate Colgate in any of the actions that form the basis

of Caskey’s claims.

Caskey has not provided factual evidence tending

to show that she was an employee of Colgate. Caskey

also has not provided any evidence to pierce the

corporate veil or to implicate Colgate in the alleged

illegal or discriminatory actions. Colgate-Palmolive’s

motion for summary judgment is granted and Col-

gate-Palmolive is dismissed as a defendant.’

Il. FMLA Entitlement Claim

The FMLA grants eligible employees the right to

twelve work-weeks of unpaid leave for specified

reasons during any twelve-month period. Among

those reasons is a “serious health condition” that

* This court previously has found that Colgate was not a

proper defendant in three recent cases involving similar claims

brought by Hill’s employees. See summary judgment entries in:

Isaacs v. Colgate-Paimolive Co., No. 1:03-cv-348 (Mar. 31, 2006)

(McKinney, J.); Brown v. Colgate-Palmolive Co., No. 1:04-cv-782

(Mar. 2, 2006) (Hamilton, J.); Bright v. Colgate-Palmolive Co.,

No. 1:03-cv-1709 (July 26, 2005) (Hamilton, J.).

Noi aiken Widen,

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App. 30

makes the employee unable to perform the functions

of his or her position. 29 U.S.C. § 2612(a)(1)(D). The

Act makes it unlawful for employers to interfere with,

restrain, or deny the exercise of any right provided by

the Act. 29 U.S.C. § 2615(a)X1). It also prohibits

employers from discriminating or retaliating against

employees who oppose practices made unlawful by

the Act. 29 U.S.C. § 2615(a)(2).

The FMLA requires that a plaintiff bring suit

within two years of an alleged non-willful violation of

the Act. 29 U.S.C. § 2617(c)(1). Because Caskey filed

this suit on July 28, 2004, she may not rely on events

occurring before July 28, 2002 to support her FMLA

claim. Accordingly, the court does not consider

Caskey’s complaint about a reduced bonus in 2000 for

taking FMLA leave. See Caskey Aff. J 120, Atts. 29 &

30. The court also does not consider Caskey’s com-

plaint about denial of FMLA leave for her October 1,

2001 absence from work. See Caskey Aff. 74 132-35.

The court addresses Caskey’s remaining allegations

that are not time-barred in chronological order.

A. January 6 and 7, 2003 Absences

Caskey was absent from work on January 6th

and 7th, 2003. Caskey testified that she suffered from

an upper respiratory infection and sinusitis. Caskey

Aff. 44 155-60. Her treating physician released her to

return to work on January 8th. See Caskey Aff. Att.

56. Hill’s gave Caskey an FMLA packet and gave her

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until February 11th to submit a medical certification

from her physician.

Caskey did not submit her certification by Feb-

ruary llth. Nevertheless, Hill’s management em-

ployee Shelly Culbertson spoke with Caskey on the

llth and gave her an additional day to return the

certification. See Caskey Aff. Att. 57. On February

13th, Culbertson reported that Caskey’s paperwork

had not yet been received and that Caskey’s absences

would not be FMLA-protected. Jd. Caskey testified

that her physician signed the certification on Febru-

ary 12th, but she did not testify that she ever submit-

ted this certification to Hill’s.

The. undisputed facts show that Hill’s did not

violate the FMLA by counting Caskey’s absences on

January 6th and January 7th as non-FMLA leave. If

an employer requests a medical certification for

absences and the employee never produces the certifi-

cation, the absences need not be treated as FML. See

29 C.F.R. § 825.311(b); Rager v. Dade Behring, Inc.,

210 F.3d 776, 778-79 (7th Cir. 2000) (affirming sum-

mary judgment for employer when certification was

not timely submitted). Caskey appears to argue that

she should have been given additional time to submiz

her certification, but the regulations require an

employee to submit a requested certification within

the time frame given by the employer (as long as it is

at least 15 days after the employer’s request), unless

it is not practicable under the particular circum-

stances. See 29 C.F.R. § 825.305(b). The undisputed

evidence shows that Caskey was given at least 15

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days from the date that Hill’s requested her certifica-

tion, and Caskey has not argued that it was impracti-

cable for her to submit her certification in a timely

fashion.

Caskey also has not offered any evidence that her |

absences on January 6th and 7th were FML-

qualifying. See 29 C.F.R. § 825.114(a) (“serious health

condition” requires inpatient care or period of inca-

pacity of more than three consecutive days and

continuing treatment by a health care provider). The

burden of proof on a claim brought under the sub-

stantive rights provision of the FMLA lies with the

plaintiff, who must demonstrate by a preponderance

of the evidence her entitlement to the disputed leave.

Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711, 713

(7th Cir. 1997) (affirming summary judgment for

former employer on FMLA claim). At the summary

judgment stage, the plaintiff must make at least a

threshold showing that she suffered from a “serious

health condition.” Haefling v. United Parcel Service,

Inc., 169 F.3d 494, 499 (7th Cir. 1999) (“Whether an

illness or injury constitutes a ‘serious health condi-

tion’ under the FMLA is a legal question that an

employee may not sidestep in the context of summary

judgment merely by alleging his condition to be so.”).

Caskey’s testimony that she suffered from an upper

respiratory infection and sinusitis is insufficient. No

reasonable fact-finder could conclude from the evi-

dence that Caskey was entitled to FMLA leave for her

two days of absences in January 2003.

;

App. 33

B. February 22 and 23, 2003 Absences

On February 21, 2003, Caskey injured her wrist

at work and was taken to the emergency room by a

Hill’s safety team leader. Caskey Aff. 74 163-70. Her

right arm was put in a cast. Caskey returned to work

that same day and tried to work, but she became

nauseous and left. She did not report to work for her

next two scheduled shifts (February 22nd and 23rd).

Caskey has offered no evidence that she contacted

Hill’s about leaving early on the 21st or about her

subsequent absences.

Caskey now contends that her absences on

February 22nd and 23rd should have been treated as

FMLA leave. She argues that Hill’s had notice of her

broken wrist because her injury occurred at work and

because a Hill’s employee accompanied her to the

emergency room.

Caskey’s argument is not persuasive. On the day

of her injury, Caskey received a medical release to

perform light duty work. Caskey II Dep. at 146-47.

That same day, she returned to work. Caskey Aff.

q 166. In light of these circumstances, Hill’s knowl-

edge of the mere fact that she was injured, without

more, was insufficient to put it on notice of a probable

basis for FMLA leave. Aubuchon v. Knauf Fiberglass,

GmbH, 359 F.3d 950, 953 (7th Cir. 2004) (employee

must give employer enough information to establish

probable cause to believe she is entitled to FML).

Under the regulations, an employee must provide at

least oral notice sufficient to make her employer

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aware that she needs FML, and information about

the anticipated timing and duration of the leave. 29

C.F.R. § 825.302(c); Collins v. NTN-Bower Corp., 272

F.3d 1006, 1008 (7th Cir. 2001) (holding that this

provision applies even in situations where advance

notice is not possible). Caskey never provided this

notice.

In addition, Caskey has not offered any evidence

demonstrating that her condition on February 22nd

and 23rd actually qualified for FMLA leave. Again,

she has not put forth evidence demonstrating that

she received inpatient care or suffered a period of

incapacity of more than three consecutive days and

received continuous treatment by a health care

provider. Caskey was not entitled to FMLA leave for

these two absences in February 2003.

C. April 24 through May 12, 2003 Absences

On April 24, 2003, Caskey told Haverkamp that

she was not coming into work because, among other

reasons, she was going to see the doctor for problems

with her nerves. Caskey Aff. 9 243. Caskey appar-

ently did come into work, but Haverkamp told her

that she was not fit to be there, that he was relieving

her of her duty with pay pending medical evaluation,

and that he would be contacting her. Id. { 244.

Caskey’s family physician recommended that she be

excused from work until May 12th for anxiety and

depression. Jd. |] 248, 249, Atts. 94 & 97.

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On May 8th, Caskey saw her physician for a

follow-up appointment. She released Caskey to return

to work on May 12th without restrictions. See Caskey

Aff. Att. 100; Vosler Aff. |{ 4, 5. She also completed a

certification for FMLA leave which stated that

Caskey had suffered from “distress, shaking, and

heart racing” and listed the duration of her ondition >

from April 24th until May 12th. See Caskey Aff.

q 254, Att. 101. Caskey requested and received FMLA

leave from Hill’s for April 24 through May 12, 2003.

See Caskey Aff. J 255, Att. 102.

Although Caskey received FMLA leave for these

absences, she argues that her leave improperly

affected later employment actions. An employer

cannot use FMLA leave as a negative factor in hiring,

promotions, or disciplinary actions. 29 C.F.R.

§ 825.220(c). The Act provides, however, that none of

its restoration provisions “shall be construed to

entitle any restored employee to ... any right, bene-

fit, or position of employment other than any right,

benefit, or position to which the employee would have

been entitled had the employee not taken the leave.”

29 U.S.C. § 2614(aX(3)(B).

Caskey first argues that Hill’s held her FMLA

leave against her when it put her into her “second”

decision-making leave. See Pl. Br. at 43. Caskey’s

May decision-making leave paperwork stated that

she was late for work on both April 23rd and 24th.

Caskey Aff. Att. 104. Caskey argues that April 23rd was

a decision-making leave day and that April 24th was

approved as FML. Caskey Aff. 9 257. The paperwork

App. 36

also noted that Caskey took an emergency vacation

day on April 6th in violation of her original decision-

making leave agreement, but Caskey argues that this

was a “lie.” Jd. 4 256.

Caskey does not dispute that she was late on

April 23rd and 24th, and the FMLA does not require

Hill’s to overlook this fact in assessing her work

performance. Caskey’s tardiness on April 24th was

independent of (and prior to) Hill’s designation of that

day as FMLA leave. Also, Hill’s contends that the

reference to April 6th was a mistake because Caskey

actually took an emergency vacation day on April

14th. See Def. Rep. Br. at 45. Caskey has not re-

sponded to Hill’s explanation. Most important,

Caskey has not explained how an incorrectly marked

absence for April 6th or her admitted tardiness on

April 23rd implicate the protections of the FMLA,

and the evidence she cites (without explanation) is

not helpful in this matter. See Caskey Aff. Atts. 115 &

124. Finally, Caskey had already recommitted to the

conditions of her decision-making leave before her

FMLA leave began on April 24th. Caskeys May

paperwork was simply a confirmation of that agree-

ment and did no more than identify additional per-

formance failures. Hill’s did not violate the FMLA by

considering Caskey’s emergency vacation leave and

tardiness in assessing her performance.

Caskey also argues that Hill’s improperly used

her April FML to disrupt her planned vacation time

in mid-May. At some point prior to May 16th, Caskey

requested vacation days for May 17th and May 18th.

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;

App. 37

Caskey Aff. 9] 259. Accord’ ng to Caskey, on May 16th,

her team leader (Krista Doyle) and Hill’s human

resources manager (Keinath) told her that she could

not take May 17th and 18th as vacation days because

her short term disability for April 24th through May

12th had not yet been approved and the absence of

this approval would cause a denial of FMLA leave for

those dates. Jd. ¥260. That would mean that

Caskey’s vacation days would be used toward those

absences. Id. Keinath told Caskey that if she felt

confident her short term disability benefits would be

approved, she could go ahead and take off May 17th

and May 18th. /d. 4 263.

Caskey did not report to work on May 17th and

18th. Caskey’s short term disability benefits were

eventually approved on May 21st. Caskey Aff. { 295,

Att. 108. Caskey complains that Hill’s nevertheless

treated May 17th and 18th as “absences.” See Caskey

Aff. 9 265 (Att. 124); 9 297 (Att. 115). She also com-

plains that, in spite of the short term disability

approval, Hill’s counted her FML from May 2nd

through May 12th as vacation days. See Caskey Aff.

11 295-96, Atts. 108, 115, 116.

Caskey’s arguments are undeveloped and unsup-

ported by the evidence. With respect to her first

complaint, Caskey cites to attendance records that

are both unauthenticated and unclear. These records

show May 17th and 18th coded as “PTO,” but Caskey

offers no explanation as to what this means. Even if

these days had been treated as “absences,” Caskey has

not explained what that means or how the absences

\) ne eee

‘

App. 38

were held against her since they did not precipitate

her termination. In support of her second argument,

Caskey also cites unauthenticated attendance re-

cords. The records show that May 2nd through May

12th were marked as FML running concurrent with

vacation. Caskey has not explained how this designa-

tion violated the FMLA or adversely affected her

employment. Caskey may not proceed on a claim that

Hill’s violated the FMLA without some showing of

harm. See, e.g., Harrell v. United States Postal Ser-

vice, 415 F.3d 700, 714-15 (7th Cir. 2005) (affirming

summary judgment for employer on claim for FMLA

violation that did not cause any harm to plaintiff),

modified on rehearing on other grounds, ___ F.3d __.,

2006 WL 1171889, *13 (7th Cir. May 4, 2006). Caskey

has not identified any adverse effects from Hill’s

handling of her April FML.

D. May 21, 22, and 27, 2003 Absences

Following her vacation days on May 17th and

May 18th, Caskey did not report to work for her next

three scheduled shifts — on May 21st, 22nd, and 27th.

Caskey claims that she was entitled to FML for these

absences. Caskey testified that around 6:10 a.m. on

the morning of May 21st, she called fellow technician

Ron Henson and told him that she was “sick” and

would not be in to work that day. Caskey I Dep. at 69;

Caskey Aff. {4 275-78. Caskey testified that Henson

said “o.k.” Henson asked Caskey if she would be in

the following day (May 22nd) and she said she would

not. Caskey did not work on May 21st, 22nd, or 27th.

ee ee a ee ee ee aS lel ll ee le Na ae Sl ed Sn ee oe a ee oe. —s - ee Bl ee EO ot

App. 39

Hill’s sent Caskey a letter on May 29, 2003 stating

that she was considered “self-terminated” for missing

three consecutive days of work without calling into

the Plant. Caskey Aff. 9 302, Att. 117; Doyle Dep. at

211-13, Ex. 23.

Caskey cannot show that she was entitled to

FMLA leave for these three absences both because

she never gave notice to Hill’s that she was seeking

FMLA leave and because she has not produced evi-

dence demonstrating that her absences qualified for

FMLA leave.

First, Caskey’s statement that she was “sick” was

insufficient to put Hill’s on notice that she was re-

questing FMLA leave. See 29 C.F.R. § 825.303;

Collins v. NTN-Bower Corp., 272 F.3d 1006 (7th Cir.

2001); see also Levine v. Children’s Museum of Iindi-

anapolis, Inc., 2002 WL 1800254, *8-9 (S.D. Ind. July

1, 2002), aff’d, 2003 WL 1545156 (7th Cir. Mar. 24,

2003). Caskey’s case is controlled by Collins. In

Collins, the Seventh Circuit affirmed summary

judgment in favor of an employer on an FMLA claim

brought by an employee who had been discharged for

two consecutive absences. The employee had called in

and reported that she was “sick” and the court held

that this statement was insufficient notice of a re-

quest for FMLA-qualifying leave. Like Caskey, the

plaintiff in Collins suffered from a sometimes inca-

pacitating mental condition of which the employer

had previous knowledge. Also like Caskey, the plain-

tiff had received numerous warnings for attendance

problems before her termination. As in Collins,

ae a a a, eee oe ey eae ee ee ee eee. fee Ore Te eee. ee ee Pe One ee oe oe

App. 40

Caskey “could have made clear the ‘serious’ nature of

her condition by referring to knowledge already in the

employer’s possession. A reference to being ‘sick’ not

only withheld important information from the em-

ployer but likely threw it off the scent.” 272 F.3d at

1008-09; cf. Spangler v. Fed. Home Loan Bank of Des

Moines, 278 F.3d 847, 852 (8th Cir. 2002) (employee’s

statement that she would not be into work because of

“depression again” created issue of fact about suffi-

ciency of notice under FMLA); Miller v. GB Sales &

Service, Inc., 275 F. Supp. 2d 823, 829-30 (E.D. Mich.

2003) (employer’s knowledge of employee’s chronic

serious health conditions of diabetes and depression,

for which she had previously taken FML, put burden

on employer to inquire whether leave was FMLA-

qualifying when employee submitted doctors’ notes

and otherwise provided supervisors with enough

information to conclude she was experiencing prob-

lems related to diabetes and/or depression).

Caskey’s case presents a stronger case for deny-

ing FMLA leave than Collins. First, the FMLA regu-

lations provide that an employer may require an

employee to comply with its “usual and customary”

notice and procedural requirements when requesting

FMLA leave. 29 C.F.R. § 825.302(d); see also Lewis v.

Holsum of Fort Wayne, Inc., 278 F.3d 706, 710 (7th

Cir. 2002). Caskey admits that the terms of her

original decision-making leave required that she

communicate any absence to her area leader. Pl. Br.

at 19. Caskey did not contact her Area Leader Krista

Doyle on May 21st, but instead called a technician on

App. 41

her team. She provided no notice at all about her May

27th absence.

Second, Caskey has not offered any evidence that

her absences qualified for FMLA leave. In Collins, the

court focused only on the question of notice and did

not decide whether the plaintiff suffered from a

“serious health condition” within the meaning of the

Act. The plaintiff’s physician, however, had testified

that she was incapacitated by depression between 10

and 20 percent of the time. 272 F.3d at 1007. In this

case, Caskey has offered no medical evidence of

incapacitation and testified only generally that she

was unable to care for her children, leave her house,

work, or function (and only on May 21st). Caskey Aff.

q 274; see Haefling, 169 F.3d at 500 (plaintiff’s “own

self-serving assertions regarding the severity of his

medical condition and the treatment it required are

insufficient to raise an issue of fact on this point”).

Caskey points to evidence that she was certified

as suffering from FMLA-qualifying depression and

anxiety from April 24th through May 12th. But the

evidence does not demonstrate that this was neces-

sarily a chronic condition. Caskey was under no.

restrictions from either her physician or her coun-

selor after May 12th. Vosler Aff. 7 4; Pl. Br. at 18.

Caskey had missed work for all sorts of reasons in the

past and had both worked and taken vacation days in

the intervening time period. Hill’s knowledge of

Caskey’s FMLA leave from late April to mid-May was

no substitute for proper notice about her absences in

late May, let alone a substitute for a showing that a

App. 42

serious health condition rendered her unable to

perform her job.

Caskey makes several arguments in an attempt

to shift the burden back to Hill’s on this issue. Caskey

suggests that Hill’s had a duty to call and inquire

about her condition to find out if her absences might

warrant FML. She also argues that Hill’s had a duty

to provide her with an FMLA packet or other infor-

mation. Caskey Aff. 9] 281, 283. Caskey also con-

tends that she was improperly terminated before she

had an opportunity to turn in FML papers. Each of

these arguments fails. Because Hill’s did not have

notice that Caskey’s leave might be FMLA-qualifying,

it was not required to provide Caskey with FMLA

information or to give her fifteen days to submit a

certification under 29 C.F.R. § 825.305. See Levine,

2002 WL 1800254, at *7.

Caskey also argues that because Hill’s does not

offer sick leave in addition to FMLA leave, any re-

quest for leave because an employee is “sick” is a

request for FMLA leave. Pl. Br. at 61. This argument

is misguided, because the FMLA requires protected

leave only for serious health conditions. See 29 U.S.C.

§ 2612. Hill’s employees were granted vacation days

and other forms of leave. Under Collins, Caskey did

not provide sufficient notice that her sickness was

FMLA-qualifying.

App. 43

E. Miscellaneous Complaints

Caskey raises a host of other miscellaneous

complaints about the way in which Hill’s handled

FMLA leave, but her arguments here fail as well.

First, Caskey argues that Hill’s used FMLA absences

to reduce the quarterly and yearly attendance bo-

nuses of technicians. Caskey Aff. 7] 124, 211 (Att. 80

— e-mail clarifying how attendance bonus is calcu-

lated and not excluding FML). Caskey does not claim

that she herself lost a bonus due to FMLA leave,

except for her time-barred claim about 2000, so she

cannot bring a claim under the FMLA on this basis.

Moreover, the regulations differentiate between

bonuses that require performance on the part of the

employee (e.g., production bonuses) and those that do

not (e.g., perfect attendance or perfect safety). While

an employer may not disqualify an employee for the

latter type of bonus because of FMLA leave, it need

only give the same consideration for the former type

of bonus that it gives to employees on other forms of

paid leave. See 29 C.F.R. § 825.215(c)\(2). There is no

evidence that Hill’s did not also reduce the quarterly

and yearly attendance bonuses of technicians who

took other forms of paid leave. Indeed, the evidence is

to the contrary. See Caskey Aff. Att. 29 (Hill’s policy

document noting that jury duty, short term disability,

FML, bereavement, illness, and military leave all

count as missed time in calculating attendance bo-

nus).

Second, Caskey argues that Hill’s used FMLA

absences to initiate and to extend the duration of

Fy FG ED ET Ae Ee ee ERNE eG OE eT EP Te ey ae Ve ee a, ae One ee ee

App. 44

IIPs. See Caskey Aff. (4 122, 124, 317 (Att. 5 - memo

stating that FML can be considered as a “data point”

when evaluating a team member who has an absen-

teeism performance issue; Att. 126 — presentation

stating that “any time missed against a weekly

schedule will be considered an absence”). Caskey’s

only FMLA-protected absences are those for which

she requested and received FMLA leave from Hill’s:

from June 27 through September 13, 2000; from April

5 through April 14, 2002; from December 13 through

December 15, 2002; and from April 24 through May

12, 2003. Caskey II Dep. at 85, Ex. 3.

Only Caskey’s discipline in November 2001 and

February 2003 were initiated for excessive absences.

Caskey has not identified evidence showing that

protected absences were included in her counted

absences and precipitated the discipline. Also, Hill’s

contends that the FMLA permits employers to extend

disciplinary periods in effect when an employee takes

FML for the length of the leave. Ser Sawyer v. Bail

Corp., 151 F.3d 1030, *2-3 (4th Cir. 1998) (unpublished)

(affirming summary judgment in favor of employer

where plaintiff alleged that employer violated FMLA

by not counting FML toward disciplinary suspension

or probationary period); but see Schmauch v. Honda

of America Mfg., Inc., 295 F. Supp. 2d 823, 831-33

(S.D. Ohio 2003) (plaintiff presented issue of fact as

to whether extension of disciplinary period solely for

taking FMLA leave discouraged such leave in violation

of 29 C.F.R. § 825.220). The court agrees with Hill’s

on this issue of law. The IP and PIP disciplinary

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App. 45

processes serve as probationary periods to review

employee performance. An employer is entitled to

review an employee’s on-the-job performance for the

full specified period, not merely for that period re-

duced by several weeks of absences. The FMLA does

not require an employer to cut short an otherwise

justified probationary period simply because an

employee has taken FMLA-protected leave.

Third, Caskey claims that Hill’s violated the

FMLA by posting all technician absences, including

FMLA-related absences, at the Plant. See Caskey Aff.

qq] 122-23, Att. 28. Caskey does not argue why this is

unlawful and there is no evidence that the practice

was used to discourage FMLA leave. Finally, Caskey

complains that Hiil’s did not post a notice at the Plant

explaining FMLA provisions or providing information

concerning procedures for filing complaints about

violations of the Act. Caskey Aff. 9122. Caskey

argues that under 29 C.F.R. § 825.300(b), therefore,

Hill’s could not punish employees such as herself for

failing to provide advance notice of need for FMLA

leave. But Caskey was never denied leave or disci-

plined for failing to previde advance notice. She was

penalized for failing to provide any notice or docu-

mentation at all. All of Caskey’s grounds for her

FMLA entitlement claim fail as a matter of law.

Ill. Title VII Discrimination Claim

Title VII makes it unlawful to “fail or refuse to

hire or to discharge any individual, or otherwise to

App. 46

discriminate against any individual with respect to

his compensation, terms, conditions, or privileges of

employment, because of such individual’s race, color,

religion, sex, or national origin.” 42 U.S.C. § 2000e-

2(aX(1) (emphasis added). Caskey claims that Hill’s

discriminated against her on the basis of her sex in a

variety of ways.

A. Time-Barred Events

Hill’s argues that claims based on events that

took place prior to October 3, 2002, should be dis-

missed as time-barred because they occurred outside

of the 300-day window before Caskey filed her EEOC

charge. See National Railroad Passenger Corp. v.

Morgan, 536 U.S. 101 (2002); see also Hildebrandt v.

Ill. Dep’t of Natural Resources, 347 F.3d 1014 (7th Cir.

2003).°

Caskey’s general complaints about gender dis-

parities in day-to-day assigned tasks and training are

not time-barred. See Morgan, 536 U.S. at 115 (similar

to hostile environment claims, “(tJheir very nature

involves repeated conduct.”); Hildebrandt, 347 F.3d at

1035-36 (considering plaintiff’s general allegations of

* Hill’s states that Caskey filed her EEOC charge on July

30, 2003, and Caskey does not dispute that date. Caskey’s

complaint, however, states that she filed her charge on or about

July 10, 2003. Cplit. ¥ 30. Neither party has submitted the

relevant charge as evidence. The court need not resolve the

discrepancy because the same events would Le time-barred

under either date.

App. 47

unequal treatment as part of single hostile environ-

ment). Caskey essentially argues that Hill’s main-

tained a system throughout the course of her

employment that allowed male technicians to take

advantage of specialized training and to assign unde-

sirable tasks to their female co-workers. She does not

challenge any one-time adoption of an official dis-

criminatory policy.

On the other hand, Morgan held that any dis-

crete acts of discrimination (not part of a hostile

environment claim) that fall outside the 300-day

statute of limitations period are time-barred even if

they relate to other discrete acts that fall within the

limitations period. 536 U.S. at 111-13. The Court gave

specific examples of discrete acts: termination, failure

to promote, denial of transfer, and refusal to hire. /d.

at 114; see also Lucas v. Chicago Transit Authority,

367 F.3d 714, 724 (7th Cir. 2004).

Caskey relies on several discrete events that are

clearly time-barred. First, Caskey alleges that at the

end of November 2001, she and another female

technician were told by a team leader that they would

be written up for attendance problems. Caskey al-

leges that several males who had more absences were

not told that they would be written up. Caskey Aff.

4 137. While this allegation fails for other reasons

(most Lasically, being told that one will be written up

is not ordinarily a materially adverse employment

action), it is also time-barred under Title VII.

App. 48

Second, Caskey claims that her February 2002

PIP was “back-dated” to November 2001, and she

argues that males were not put into the disciplinary

process “retroactively.” Caskey Aff. 74] 139-40, Atts.

33 & 34. Caskey also claims that sixty-four hours of

her absences were for bereavement leave, and that

this type of leave was not held against males for

attendance purposes. Caskey Aff. 7 138. All of these

allegations are time-barred under Title VII. Hill’s

decision to discipline Caskey in February 2002 for

excessive absenteeism was a discrete act that oc-

curred outside the relevant limitations period. It does

not matter that the discipline might have later af-

fected Caskey’s employment relationship with Hill’s

during the limitations period. See United Air Lines,

Inc. v. Evans, 431 U.S. 553, 558 (1977) (employee’s

separation prior to limitations period because of

alleged discriminatory policy did not support claim

for continuing violation where employee was rehired

and lost seniority credit as a result), cited by Morgan,

536 U.S. at 112, and Reese v. Ice Cream Specialties,

Inc., 347 F.3d 1007, 1011 (7th Cir. 2003); see also

Brown v. Colgate-Palmolive Co., 2006 WL 517684,

*10 (S.D. Ind. Mar. 2, 2006) (concluding that defen-

dant’s PIP/IIP constituted a discrete act under Mor-

gan).

Finally, Caskey claims that in August 2002 she

applied for and was denied a technician position in

Special Projects, and that the position was given to a

male co-worker (William Vance). Caskey Aff. {4 70,

147. Caskey claims that the position would have

App. 49

constituted a promotion because it paid more, pro-

vided more overtime, and did not require rotating

shifts, but the evidence on which she relies for this

point is unclear and unauthenticated. See Caskey Aff.

Att. 51 (chart with a handwritten note next to Vance’s

name stating “salary increase 9/8/02?”). In any event,

Caskey’s own evidence demuvunstrates that Vance’s

acceptance of the position occurred before September

or October 2002 and therefore her claim is time-

barred. See Morgan, 536 U.S. at 114 (characterizing

“denial of vransfer” and “failure to promote” as easily

identifiable discrete acts).

B. Disparate Treatment

Caskey offers no direct evidence of discriminatory

intent on the part of Hill’s. To establish a prima facie

case of sex discrimination under the indirect method

of proof, Caskey must show: (1) she was a member of

a protected class; (2) she was meeting her employer’s

legitimate performance expectations; (3) she was

subjected to an adverse employment action; and (4)

she was treated less favorably than similarly situated

male employees. Rhodes v. Illinois Dep’t of Transp.,

359 F.3d 498, 504 (7th Cir. 2004); Patterson v. Avery

Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002). If

Caskey can establish a prima facie case, Hill’s must

articulate a legitimate, non-discriminatory reason for

its actions, and Caskey must them respond by show-

ing that Hill’s reason is really a pretext for discrimi

nation. Rhodes, 359 F.3d at 504.

App. 50

Caskey’s Title VII allegations fall into three

categories: (1) she received discipline that similarly

situated males did not receive; (2) male technicians

were assigned easier and more favorable tasks than

female technicians, and they were trained in certain

tasks in which female technicians did not receive

training; and (3) male employees were given credit for

her suggestions about plant improvements.‘

1. Discipline

(a) February 2003 Performance Agree-

ment

On February 27, 2003, Caskey was put into a

second-stage IIP for having eighty-four hours of non-

FMLA absences during the rolling calendar year,

reflecting an absenteeism rate im excess of 3%.

“ Caskey also testified that Hill’s “gave male employee Ron

Thomas 620 hours of FMLA leave in one year when he was not

seriously injured, but the plant failed to give [her] FMLA when

[she] broke {her] wrist, [her] shoulder was in pain, and [she] was

severely depressed.” See Caskey Aff. { 313. The court interprets

this testimony to be an allegation of discrimination based on sex.

But Caskey offers no evidentiary support for this statement

other than her own testimony, and her testimony is not specific

enough nor demonstrably based on personal knowledge to be

admissible. Drake v. Minnesota Mining & Mfg. Co., 134 F.3d

878, 887 (7th Cir. 1998) (“Rule 56 demands something more

specific than the bald assertion of the general truth of a particu-

lar matter, rather it requires affidavits that cite specific concrete

facts establishing the existence of the truth of the matter

asserted.”), citing Hadley v. Du Page County, 715 F.2d 1238,

1243 (7th Cir. 1983).

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App. 51

Caskey Aff. Att. 62; Keinath Aff. 794-6. The Plant

practice during 2003 was to discipline employees who

exceeded an absenteeism rate of 2.12%. Keinath Aff.

q 7.

Caskey testified generally that “[sleveral male

employees had more absences than [she] had and

they were not disciplined.” Caskey Aff. J 312. Caskey

does not identify any of these male employees. In-

stead, she persistently argues that Hill’s has not

identified any similarly situated males who were

treated worse than her. See, e.g., Pl. Br. at 34, 41, 49.

Caskey’s argument misunderstands her burden of

proof at the summary judgment stage: Hill’s is not

required to come forward with evidence of male

employees who were treated worse than Caskey;

rather, she has the burden of identifying similarly

situated males who were treated more favorably.

Caskey has not met this burden. The only evi-

dence she cites on the issue is a chart attached to her

affidavit, which she alleges shows technician ab-

sences for one year beginning on September 27, 2002.

See Caskey Aff. Att. 123. This chart is unauthenti-

cated hearsay evidence and gives no indication as to

whether the absences were authorized or whether

employees were disciplined as a result of their ab-

sences. It also does not match the rolling calendar

year period used to calculate Caskey’s absences.

In addition, Caskey has not offered evidence from

which a jury could find that Hill’s stated reason for

disciplining her was pretextual. Caskey points out

App. 52

that she skipped the first stage of IIP. But Keinath

testified that Caskey was put directly into the second

stage because of her level of unexcused absences and

because she had only recently exited an IIP for simi- .

lar absenteeism problems. Keinath Aff. 79. Plant

Manager Zaleha testified that Hill’s retains discretion

to advance a technician in the disciplinary process if

circumstances warrant. Zaleha Aff. 4 9. Caskey offers

no evidence or argument in response, and therefore

she cannot show that her discipline in February 2003

was discriminatory.

(b) March 2003 Decision-making Leave

Caskey also cannot make out a prima facie case

of discrimination based on her March 2003 decision-

making leave. Caskey’s leave paperwork discussed

her discipline history and noted her “pattern of

absenteeism over the past 2 years.” See Caskey Aff.

Att. 72. Hill’s stated that Caskey had not shown

adequate improvement despite “several opportuni-

ties” for correction. Hill’s also identified two more

recent problems. First, Hill’s claimed that Caskey had

exhibited “at-risk behavior” in performing equipment

maintenance on an extruder machine in February

2003. See also Caskey Aff. Att. 63. Second, Hill’s

claimed that on March 5th, Caskey allowed over

50,000 pounds of defective product to be produced on

the extruder line for which she was responsible for

conducting periodic quality checks. Caskey’s paper-

work stated that these “latest two actions continue to

violate the company’s principles/values.”

App. 53

Caskey argues that both of the more recent

incidents were not her fault. She testified that there

was no “at-risk” side of the extruder and that after

her injury, she was asked to write a standard operat-

ing procedure for replacing an extruder die. Caskey

Aff. 99 175-77, 180-82. Caskey also testified that the

defective product problem was caused by a surge in

the machine. Jd. 4 185. She testified that she shut

down the machine three or four times during her shift

to try to solve the problem, but she was told by a shift

optimization technician, technical systems, and

computer integrated manufacturing to keep it run-

ning. Id. { 190. Caskey testified that none of these

parties were able to solve the problem and that no

managers were present during her shift. Jd. {{ 186-

89. Caskey claims that she performed all required

quality checks but that she could not constantly

perform checks because she had to perform other

functions on the machine. Jd. | 193.

In cases alleging discriminatory discipline, the

plaintiff need not always show that she was a model

employee. An employer may violate Title VII by

disciplining an employee more harshly because of her

sex. Thus, where a plaintiff alleges discriminatory or

retaliatory discipline, “the second and fourth prongs

of McDonnell Douglas merge.” Lucas, 367 F.3d at 728,

citing Grayson v. O’Neill, 308 F.3d 808, 817 (7th Cir.

2002), and Flores v. Preferred Technical Group, 182

F.3d 512, 515 (7th Cir. 1999). Accordingly, the court

need not decide whether Caskey was meeting Hill’s

a —— we ae ee

App. 54

legitimate expectations at the time of her March

decision-making leave.’

Nevertheless, Caskey cannot establish a prima

facie case of discrimination because she has not

identified any male employees who were treated more

favorably despite engaging in similar conduct. In

differential discipline cases, a plaintiff must show

that she was situated similarly to a male employee

with respect to performance, qualifications, and

conduct. Peters v. Renaissance Hotel Operating Co.,

307 F.3d 535, 546 (7th Cir. 2002); Radue v. Kimberly-

Clark Corp., 219 F.3d 612, 617-18 (7th Cir. 2000).

This typically requires a showing that the two em-

ployees dealt with the same supervisor, were subject

to the same standards, and engaged in similar con-

duct without differentiating or mitigating circum-

stances that would distinguish their conduct or their

employer’s treatment of them. Radue, 219 F.3d at

617-18. To meet her burden of identifying a similarly

situated employee, Caskey must identify a male co-

worker who is directly comparable to her in “all

material respects.” Grayson, 308 F.3d at 819.

Caskey points to other males who were injured at

work and not put :nto an ITP (see Caskey Aff. {| 314-16,

* The evidence offered by Hill’s-Caskey’s letters of recom-

mitment to the plant while on decision-making leave (See

Caskey II Dep. Ex. 1: “My performance so far has not lived up to

Hill’s standards”) — are not dispositive on this issue, because

writing a recommitment letter appears to have been a condition

for keeping one’s job while on leave.

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App. 55

Att. 125), but she has not identified any male techni-

cians who were injured at work, were accused of

causing production of defective product, and had a

similar level of absenteeism but were not disciplined.

In fact, Caskey cannot identify any technician — male

or female — who shares these characteristics. Hill’s

acknowledges that it does not put technicians into an

IIP for just one or two reportable accidents, see

Caskey Aff. Att. 125 (Jim Miller report), and Caskey’s

evidence is not inconsistent with that alleged policy.

Caskey has failed to raise a genuine issue of fact

regarding the fourth element of her prima facie case.

Also, none of the evidence cited by Caskey would

allow a reasonable jury to find that Hill’s reasons for

disciplining her were pretextual. To show pretext,

Caskey must present evidence that would allow a

jury to find that the Hill’s managers who made the

decision to discipline her did not honestly believe that

she had committed the behavior of which she was

accused or that the behavior was not the real reason

for their decision. She has not presented such evi-

dence.

First, Caskey has not shown pretext merely by

arguing that there was no “at-risk” side of the ex-

truder. An incident investigation team comprised of

several of Caskey’s co-workers concluded that she was

standing on the “at-risk” side of the extruder at the

time of her accident. Caskey argues that Keinath and

her team leader “influenced” the other members of

the team to reach this conclusion. Her argument is

based on sheer speculation and anyway does not

;

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App. 56

implicate discrimination. Caskey has offered no

evidence of discriminatory bias on behalf of any of the

Hill’s employees who were charged with investigating

her accident. Cf. Russell v. Bd. of Trustees of Univ. of

Illinois at Chicago, 243 F.3d 336, 342 (7th Cir. 2001)

(decision-making process tainted by supervisor’s im-

proper motives because of supervisor’s active involve-

ment in process was sufficient evidence of pretext to

survive summary judgment); see also Alexander uv.

Wisconsin Dep't of Health and Family Services, 263 F.3d

673, 684 (7th Cir. 2001) (summary judgment is gener-

ally inappropriate where plaintiff can show that

employee with discriminatory animus provided

factual information or other input that may have

affected the adverse employment action); Dey v. Colt

Const. & Dev. Co., 28 F.3d 1446, 1459 (7th Cir. 1994).

Similarly, Caskey has not shown pretext merely

by pointing out that she was the only employee

disciplined in relation to the defective product inci-

dent on March 5th. Caskey admits that the extruder

line ran defective product and that at least some of

this product reached the Packaging area. Caskey II

Dep. at 124. She also admits that part of her job as an

extruder operator was to keep defective product from

reaching Packaging. Id. at 132-33. Caskey has not

shown pretext simply by presenting evidence that she

did her required quality checks and asked others for

help, and by arguing that no more could be expected

of her. The Seventh Circuit has repeatedly cautioned

in employment discrimination cases that federal

courts do not sit as super-personnel departments to

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;

App. 57

re-examine an employer’s business decisions. £.g.,

Ballance v. City of Springfield, 424 F.3d 614, 621 (7th

Cir. 2005); see also Fortier v. Ameritech Mobile Com-

munications, Inc., 161 F.3d 1106, 1114 (7th Cir. 1998)

(employee’s self-appraisal of his or her performance

cannot create issue of fact on honesty of supervisor’s

assessment). Hill’s chose to hold Caskey, as the

extruder operator, singly responsible for the defective

product. There is no evidence that its decision was

based on impermissible discriminatory motives.

Caskey argues that male technicians, presuma-

bly working as extruder operators, had run defective

product in the past but were not disciplined. Caskey

II Dep. at 108, 112-14, 133-34 (testifying about Mike

Witham, Joel Reece, and Mike Holt). If supported by

evidence, such an allegation could demonstrate

pretext. E.g., Morrow v. Wal-Mart Stores, Inc., 152

F.3d 559, 561 n.3 (7th Cir. 1998) (“There is no doubt

that selective enforcement of company policies

against one gender and not the other would consti-

tute sex discrimination under Title VII.”). But Caskey

has not provided sufficient evidence about the cir-

cumstances of any of these men for a reasonable jury

to conclude that they were similarly situated to her.

Caskey has not presented evidence about the amount

of bad product they produced or whether that product

reached Packaging. At least in the case of Reece,

_ Caskey testified that his product did not reach the

Packaging area. Caskey II Dep. at 108.

For purposes of the pretext inquiry, “[a]rguing

about the accuracy of the employer’s assessment is a

Ts ER pes eS ae Sel Oe eS eh ey Se oe re tf eee

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;

App. 58

distraction because the question is not whether the

employer’s reasons for a decision are ‘right but

whether the employer’s description of its reasons is

honest.’” Jones v. Union Pacific R. Co., 302 F.3d 735,

744 (7th Cir. 2002), quoting Kariotis v. Navistar Int'l

Transp. Corp., 131 F.3d 672, 677 (7th Cir. 1997),

quoting in turn Gustovich v. AT & T Communica-

tions, Inc., 972 F.2d 845, 848 (7th Cir. 1992) (empha-

ses in original). Caskey has presented no evidence

that any of Hill’s reasons for putting her into DML

were dishonest and therefore a pretext for discrimi-

nation.

Caskey has made no effort to explain how Hill’s

decision to extend the end-date of her original deci-

sionmaking leave in May 2003 was discriminatory.

Instead she merely argues that she did not deserve

the discipline. Caskey’s argument is misguided.

First, Caskey has not even attempted to establish

a prima facie case of discrimination. At the very least,

she has failed to identify any similarly situated males

who were treated more favorably.

Even if Caskey could establish a prima facie case

of discrimination, she has not offered evidence that

Hill’s stated reason for renewing her DML was pre-

textual. Hill’s contends that Caskey was disciplined for

failing to comply with the terms of her original DML.

Caskey’s March DML explicitly required that she

“(hjave no absences and use no emergency vacation

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App. 59

time for the duration of the agreement.” Caskey Aff.

Att. 72 at 4. On April 10, 2003, Caskey left Indiana to

drive to Texas and attend the graduation of her

cousin’s friend. Caskey II Dep. at 16-17. On the

morning of April 12th, Caskey called the Plant to

request vacation time for her scheduled shift on April

14th. Jd. at 14-15, 19. Caskey admits that she called

in less than 48 hours before the start of shift. See PI.

Br. at 16 (acknowledging that Caskey called her team

sometime between 6:00 a.m. and about 10:00 a.m.);

see also Caskey Aff. { 224. In any event, it is difficult

to see how a trip to Texas to attend the graduation of

a cousin’s friend would amount to “emergency” vaca-

tion.°

° As defendants point out, Caskey’s testimony about the

time of her call and with whom she spoke on April 12th has

changed over the course of this case. In her first deposition,

Caskey testified: “I called Carolyn Thomas and Chris White on

Saturday morning at ten o’clock. I was four hours off my 48-hour

time. I didn’t want to call them at six o’clock in the morning.

And I called [team leader] Krista Doyle.” Caskey I Dep. at 77-78.

In her second deposition, Caskey testified: “I called in work at

6:30 in the morning and told them that I would not be there on

my next day ... Krista — I did not talk to Krista. I talked to

Chris White on the phone that morning.... I never talked to

Krista Doyle.” Caskey II Dep. at 14-15. Caskey later suggested

that she was only fifteen minutes late in calling. Caskey II Dep.

at 70. Also see Caskey Aff. 9 216 (testifying that she called

Krista Doyle), ¥ 224 (testifying that she called team members

and team leader “sometime between 6:00 a.m. and 10:00 a.m.”).

Caskey may not create a genuine issue of fact by relying on her

own internally contradictory deposition and affidavit testimony.

Buie v. Quad/Graphics, Inc., 366 F.3d 496, 505 n.5 (7th Cir.

2004).

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App. 60

Caskey makes several arguments to avoid the

obvious result of her admission. Caskey argues that

Hill’s requirement that she take no emergency vaca-

tion time was unreasonable and that “[she] was not

told what emergency vacation was or what [she] was

supposed to do in an emergency.” Caskey Aff. 9 222.

Caskey also claims that another “general rule” al-

lowed employees to call in during the first four hours

of their shift, however she specifically admitted that

her DML required that she not take emergency

vacation without forty-eight hours notice. Caskey II

Dep. at 14-15. Finally, Caskey claims that her team

had no objections to her taking the day off and that

she was “in substantial compliance” with the forty-

eight hours rule.

None of Caskey’s arguments suggest that Hill’s

interpretation of its policy in her case was inconsis-

tent or factually baseless and therefore that its

offered reason for disciplining her was pretextual.

Hill’s forty-eight hours notice rule was a reasonable

requirement which Caskey failed to meet. See Coco v.

Elmwood Care, Inc., 128 F.3d 1177, 1179 (7th Cir.

1997) (“it is no business of the court in a discrimina-

tion case to decide whether an employer demands ‘too

much’ of his workers”). Caskey has not shown that

Hill’s extension of her original decisionmaking leave

was discriminatory.

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App. 61

(d) May 2003 Termination

Finally, Caskey has not offered sufficient evi-

dence from which a reasonable jury could conclude

that her termination in May 2003 was discriminatory.

Caskey has failed to raise a genuine issue of fact as to

whether she was meeting Hill’s reasonable expecta-

tions at the time she was terminated because the

undisputed evidence shows that she violated the

terms of her decision-making leave by failing to notify

her area leader of her absences and by taking unex-

cused absences. Also, Caskey has not identified any

similarly situated male employees who were not

terminated for similar conduct.

Caskey argues that she had scheduled May 22nd

as a vacation day. Caskey Aff. 94 287, 304. This

argument is not dispositive, since even one unexcused

absence would have been sufficient to terminate

Caskey under the terms of her DML. Caskey also

argues that she had vacation days available to her at

the time of her absences. But even if the court as-

sumes that Caskey had vacation days available

because her short-term disability had been approved

for her absences from April 24 through May 12, it

would not matter. See id. |¥ 279-80. Caskey would

have violated the terms of her DML by taking emer-

gency vacation time for her absences on May 21st and

27th.

Because Caskey cannot establish a prima facie

case of discrimination as to her termination, the court

need not address the parties’ arguments about pretext.

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App. 62

See Peele v. Country Mutual Ins. Co., 288 F.3d 319,

326 (7th Cir. 2002) (“A plaintiff does not reach the

pretext stage, however, unless she first establishes a

prima facie case of discrimination.”); Jones v. Union

Pacific Railroad Co., 302 F.3d 735, 741 (7th Cir. 2002)

(establishing a prima facie case of discrimination is a

condition precedent to pretext analysis).

2. Training and Work Assignments

Caskey testified that female technicians at the

Richmond Plant were typically assigned to do the

“dirty work” of daily cleaning, while men were as-

signed to the “easier” job of preventive maintenance,

which involved oiling and adjusting machines and

which gave men specialized training. Caskey Aff.

77 42, 53. Caskey testified that she wanted to do

specialized projects and preventive maintenance but

was not allowed to do so because the male technicians

would not train female technicians on preventive

maintenance. Id. | 56. Technicians at the Hill’s plant

worked in teams in which the members were ex-

pected to manage themselves cooperatively to accom-

plish the needed work. Caskey testified that “{o]ne

time in about 2002,” she told the men at the plant

that she was coming in over a holiday for the tear-

down of a machine, but the men in charge ignored her

and did not teach her anything. Id. 4 61.

Caskey testified that cleaning was supposed to be

performed by all employees during their shifts while

performing their regular jobs and operating their

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App. 63

machines, but that the male technicians usually told

the female employees to clean while they continued to

operate their machines or do preventive maintenance.

Caskey Aff. 7 53. She testified that there were also

shut-down days when men did prevertive mainte-

nance and women were required to clean the work

areas. Id. { 55.

In 1997, Caskey complained to her team leader

that five men were sent for extruder training, but she

was not sent. She testified that she never was al-

lowed to go to training for the extruder that she

operated. Caskey Aff. (67-68. Caskey acknowledged

that there was no formal training in preventive

maintenance, but she also testified that men did not

provide on-the-job training in preventive mainte-

nance to female employees. Jd. 44 58-59. Caskey did

learn some preventive maintenance on her extruder

just by operating it and being present during its

operation. Id. { 63.

Caskey testified that she did not like cleaning

“all the time” while the men did preventive mainte-

nance. Caskey Aff. 7 52. But Caskey acknowledges —

that she never asked to do preventive maintenance

because she did not want to “be held responsible for

stuff” that she did not understand. See Caskey I Dep.

at 54-55. Caskey was offered the role of preventive

maintenance point person in 2003 but declined the

position. Jd. at 55-56. She said that she did so be-

cause she was not trained for the position and “did

not want to harm [herself] or others.” Caskey Aff.

11 64-65.

App. 64

Caskey’s complaints about alleged disparities in

work assignments and training do not rise to the level

of adverse employment actions under Title VII. “A

materially adverse employment action is something

‘more disruptive than a mere inconvenience or an

alteration of job responsibilities.’” Rhodes, 359 F.3d at

504, quoting Crady v. Liberty Nat'l Bank and Trust

Co. of Indiana, 993 F.2d 132, 136 (7th Cir. 1993). A

materially adverse action can be indicated by termi-

nation of employment, demotion, a less distinguished

title, material loss of benefits, significantly dimin-

ished responsibilities, or other indices unique to a

particular situation. Hildebrandt, 347 F.3d at 1033

n.13, citing Traylor v. Brown, 295 F.3d 783, 788 (7th

Cir. 2002). Not everything that makes an employee

unhappy qualifies as a materially adverse action, and

adverse employment actions are typically economic

injuries. Whittaker v. Northern Ill. Univ., 424 F.3d

640, 647 (7th Cir. 2005).

First, technician compensation and benefits at

Hill’s did not vary by area or work assignment.

Zaleha Aff. 7 7. Technicians were expected to work in

all areas of the Plant, and the assignment of tasks

germane to one’s job is typically not an adverse action

under Title VII. See Rhodes, 359 F.3d at 505 (affirm-

ing summary judgment on finding of no materially

adverse employment action under Title VII where

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