Hite v. Biomet, Inc.

• Decision Date: 23 June 1999
• Docket Number: No. 1:98-CV-0022.,1:98-CV-0022.
• Citation: 53 F.Supp.2d 1013
• Parties: Sherri E. HITE Plaintiff, v. BIOMET, INC., Defendant.
• Court: U.S. District Court — Northern District of Indiana

53 F.Supp.2d 1013

Sherri E. HITE Plaintiff, v. BIOMET, INC., Defendant.

No. 1:98-CV-0022.

United States District Court, N.D. Indiana, Fort Wayne Division.

June 23, 1999.

Cynthia Rockwell, Haller and Colvin, Fort Wayne, IN, for Sherri E. Hite, plaintiff.

Thomas M. Kimbrough, Barrett and McNagny, Fort Wayne, IN, for Biomet, Inc., defendant.

C. Erik Chickedantz, Hawk, Haynie, Gallmeyer & Chickedantz, Fort Wayne, IN, mediator.

MEMORANDUM OF DECISION AND ORDER

WILLIAM C. LEE, Chief Judge.

On January 16, 1998, plaintiff, Sherri E. Hite ("Hite") filed her complaint against Defendant Biomet, Inc. ("Biomet") alleging violations of the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2617, the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12111, et seq., and the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1132. Hite contends that Biomet retaliated against her after she took medical leave under the FMLA by subjecting her to a hostile work environment and terminating her employment; retaliated against her on the basis of her disability; intentionally interfered with her right to certain short term and long term disability benefits; and wrongfully denied her claims for medical and disability benefits. Biomet denies discriminating against or interfering with Hite's rights and contends that it properly denied Hite the benefits she seeks to recover in this lawsuit.

On March 3, 1999, this Court entered summary judgment in favor of Biomet on all of Hite's claims save her claim of FMLA retaliation arising out of her first FMLA leave. After entry of that Order, the parties became engulfed in a dispute over the potential damages Hite could recover at trial on this remaining claim. As a result, this court vacated the trial date and directed Biomet to file a subsequent motion for partial summary judgment on the issue of damages. In accordance with this directive, on April 16, 1999, Biomet filed its Motion for Partial Summary Judgment together with its Brief in Support. On May 3, 1999, Hite responded by filing her Brief in Opposition to the Motion for Summary Judgment and her Motion for Partial Reconsideration of the March 3, 1999, Order, along with supporting materials. Thereafter, on May 7, 1999, Biomet filed a joint brief addressing both the opposition to summary judgment and the motion for partial reconsideration, as well as a motion to strike Hite's affidavit. Hite filed her reply to the motion for partial reconsideration and her response to the motion to strike on May 20, 1999, to which Biomet replied on May 27, 1999, making all of the motions ripe for review.

For the following reasons, Biomet's Motion for Partial Summary Judgment will be GRANTED in part and DENIED in part; Hite's Motion for Partial Reconsideration will be DENIED; and the Motion to Strike Hite's Affidavit will be GRANTED.

DISCUSSION¹

Throughout her case, plaintiff has consistently asserted the existence of two distinct FMLA claims. Her first FMLA claim, a strict retaliation claim, involves Hite's treatment after she took FMLA leave in January, 1996.² Hite contends that Biomet retaliated against her after she took this leave by subjecting her to a hostile work environment when she returned to work. According to Hite, the hostile work environment began with her supervisor, Herschel Walters ("Walters") moving her work space into a small cubbyhole, assigning her more arduous tasks, and speaking abruptly and abusively to her. Hite also contends that when she returned from FMLA leave her co-workers gave her the cold shoulder and the silent treatment. At the summary judgment stage, Biomet did not dispute Hite's version of the facts on this issue and failed to present any evidence of its reasons for moving her work space and assigning her more time consuming work after she returned from leave. As a result, the court concluded that Hite had proffered evidence to support a prima facie case of retaliation which Biomet failed to rebut and thus, denied summary judgment as to that claim.

Secondly, Hite asserted that Biomet discharged her in retaliation for exercising her FMLA rights when she took a second FMLA leave of absence in April, 1996, for depression allegedly caused by her abusive work environment. After reviewing the undisputed facts, this court concluded that Hite's FMLA leave period ended 10 weeks prior to her termination and that Biomet validly terminated Hite's employment after she failed to report to work or supply a medical excuse to remain off work from her second leave of absence, pursuant to Biomet's policy. In so finding, this court concluded that plaintiff presented no evidence that the proffered legitimate nondiscriminatory reasons for her discharge were pretextual and, in particular, Hite had pointed to no evidence which raised an inference of discrimination to rebut the legitimate nondiscriminatory reason proffered for Hite's termination.

It is the distinction between plaintiff's two FMLA claims which has spurred the most recent contention between the parties; that is, what damages can Hite recover if she is successful at trial? Because this court's analysis of the damages Hite is entitled to seek from a jury could differ if this court resolves plaintiff's motion for partial reconsideration of the retaliatory discharge claim favorably to plaintiff, the court shall first address plaintiff's request for partial reconsideration.

1. Motion for Reconsideration

As this court has noted once herein and detailed in its March 3, 1999 opinion, plaintiff claims that Biomet discriminated against her by terminating her for having exercised an FMLA right, that is for having taken FMLA leave. Because this type of claim is analogous to retaliation/discrimination claims under other anti-discrimination statutes, this court applied the latest Seventh Circuit authority on the subject and concluded that Hite must meet the rigors of the McDonnell Douglas burden shifting approach to draw the necessary inference of Biomet's intent.³ See King v. Preferred Technical Group, 166 F.3d 887, 891 ("Therefore, in the absence of direct evidence of discrimination, we will apply the McDonnell Douglas burden-shifting framework to claims that an employer discriminated against an employee for exercising rights guaranteed by the FMLA."). In analyzing Hite's claim of discrimination, this court concluded that plaintiff both failed to demonstrate a causal connection between her termination and her exercise of FMLA rights and, even if she could demonstrate such a connection, plaintiff "fails to demonstrate that the proffered reason is pretextual." Hite, 38 F.Supp.2d at 743.

Before analyzing further plaintiff's argument on this point, it is helpful to the analysis to restate the undisputed facts relating to Hite's retaliatory discharge claim. Taken verbatim from this court's prior order, the pertinent facts to this claim are:

On May 30, 1996, during Hite's third leave of absence, Dr. Strycker (Hite's treating physician) sent Heeter (Biomet benefits coordinator) a medical leave of absence form for Hite indicating that she was to continue her medical leave indefinitely. (Appendix Exh. 18). Heeter received this information and determined that it was unacceptable because it is Biomet's practice to require a definitive return to work date in order to pay short-term disability payments and continue her excused absence. (Whaley Dep. p. 71). For this reason, Heeter sent a letter, dated May 31, 1996, to Strycker indicating that the indefinite leave period was unacceptable and requesting that he submit a new medical leave of absence slip limiting the medical leave to the date of Hite's next reevaluation or recheck date. Dr. Strycker then forwarded to Heeter a medical slip, dated July 23, 1996, which stated "remain off work until 8-5-96 when [patient] has [appointment] here." Heeter stated that he did not notify Hite of his correspondence with Dr. Strycker regarding definite recheck dates. Because Hite had been on a leave of absence previously, Heeter believed she understood that she was to return to work by the recheck date on her leave slip unless otherwise indicated by a physician. Hite testified that Dr. Strycker mentioned to her that Biomet would not accept an indefinite leave date but indicated to Hite that he was working out the details of her leave with Biomet.

On August 5, 1996 Hite failed to attend her scheduled appointment with Strycker. Hite did not notify Biomet of her failure to attend the appointment nor did Biomet receive any information from Strycker indicating that Hite should remain on medical leave. Because of this absence of information, Biomet assumed that Hite would be returning to work in line with company policy. Heeter's notes and deposition testimony reflect that he contacted Dr. Strycker's office on August 6 and was told that Hite had failed to keep her August 5 appointment and had not rescheduled. (Heeter Dep. Exh. 33; Heeter Dep., pp. 201-202). Heeter's notes and testimony also reflect that he made a second call to Dr. Strycker's office on August 9 at which time he was informed that Hite had not rescheduled her appointment and that Dr. Strycker was "unable to certify the continuation of her disability." (Id.). Hite does not dispute that she failed to attend her appointment and did not immediately reschedule it. (Hite Dep. p. 110).

Given this information, when Hite did not return to work for three consecutive days and failed to notify Biomet of the reason for her failure to report to work, Whaley terminated her employment pursuant to Biomet's "no-call/no-show" policy. This policy, contained in the Biomet Team Member Handbook, states "any team member who fails to notify his or her supervisor of three (3) consecutive days of absence will be automatically terminated on the third day." (Appendix Exh. 23). For purposes of Hite's employment status, Whaley stated that she interpreted Dr. Strycker's last medical slip as...