Perry v. Bath & Body Works, LLC, CAUSE NO.: 2:11-CV-240-PRC

CourtUnited States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
Decision Date28 January 2014
Docket NumberCAUSE NO.: 2:11-CV-240-PRC
PartiesJULIE PERRY, Plaintiff, v. BATH & BODY WORKS, LLC and LINDSAY MCKAY-LOESCHER in her individual and official capacities, Defendants.

JULIE PERRY, Plaintiff,
her individual and official capacities, Defendants.

CAUSE NO.: 2:11-CV-240-PRC


SO ORDERED: January 28, 2014


This matter is before the Court on Defendants' Motion for Summary Judgment [DE 42], filed by Defendants Bath & Body Works, LLC and Lindsay McKay-Loescher on May 10, 2013, and a Motion for Leave to File Under Seal Certain Documents Filed in Support of Plaintiff's Response in Opposition to Defendants' Motion for Summary Judgment [DE 54], filed by Plaintiff Julie Perry on July 22, 2013. The motions are fully briefed and ripe for ruling.


On July 1, 2011, Plaintiff Julie Perry filed a Complaint in this Court against Limited Brands Store Operations, Inc. and Lindsay Loescher, individually and in her official capacity.1 The Complaint alleged that Defendants retaliated against Perry for utilizing leave time under the Family and Medical Leave Act; retaliated and discriminated against Perry because of her serious health condition (skin cancer) in violation of the Americans with Disabilities Act; discriminated against Perry due to her age in violation of the Age Discrimination in Employment Act; discriminated and retaliated against Perry for using her employee benefits under the Employee Retirement Income

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Security Act; and violated Indiana Wage Claims and Wage Payment statutes by not paying Perry for accrued vacation time.

On February 22, 2012, Perry filed an Amended Complaint with leave of Court to properly name the Defendants as Bath & Body Works, LLC ("BBW") and Lindsay McKay-Loescher. The Amended Complaint also added a claim for interference with Family and Medical Leave Act rights in addition to the claims from the original Complaint.

On February 22, 2013, a Notice of Filing Bankruptcy was filed as to McKay-Loescher, and, on February 27, 2013, the Court ordered this action stayed as to McKay-Loescher individually.

On May 10, 2013, BBW and McKay-Loescher filed the instant Motion for Summary Judgment and a brief in support, seeking summary judgment on all claims. On July 1, 2013, Perry filed a response, and Defendants filed a reply on July 22, 2013. On July 22, 2013, Perry filed the Motion to Seal, and Defendants filed a response on August 2, 2013.

The parties orally agreed on the record to have this case assigned to a United States Magistrate Judge to conduct all further proceedings and to order the entry of a final judgment in this case. Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).


Plaintiff Julie Perry moves to maintain under seal Exhibits 3a, 3c, 3p, 3q, 3r, 3s, 3t, 3u, 3v, 3w and 5 to her response brief in opposition to summary judgment. Defendant BBW marked these documents "CONFIDENTIAL" during the course of discovery pursuant to the Protective Order in place in this case. BBW agrees with the motion as to Exhibits 3a, 3p, 3r, 3s, 3t, 3u, and 3v, although BBW proposes that if some of these exhibits are unsealed, certain information in the documents

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should be redacted. BBW responds that it does not object to the unsealing of Exhibits 3c, 3q, 3w, and 5.

Mindful of the Seventh Circuit Court of Appeals' firm position regarding requests to seal documents from the public record and in light of the protections afforded for personal identifiers in Federal Rule of Civil Procedure 5.2(a) and the discretion the Court has under Rule 5.2(e) to require additional redaction or to limit access by nonparties to certain documents for good cause, the Court makes the following rulings based on a finding of good cause.

Exhibit 3a contains McKay-Loescher's job offer letter and job application, which are offered only to support the undisputed fact of her start date with BBW. Only the offer letter is necessary for this purpose. Therefore, the Court orders that Perry file a redacted version of the offer letter, which is the first page of Exhibit 3a (bates stamp JP1073), redacting both McKay-Loescher's address and Michael Hurd's phone number. McKay-Loescher's job application (bates stamp JP1074, JP1075) shall remain under seal.

Exhibit 3c is a district visit summary. The Court orders Perry to file a redacted version of Exhibit 3 c, redacting the name of the store manager for store 212, who is not involved in this litigation.

Exhibit 3p is a portion of a chart provided by BBW that contains birth dates, addresses, and telephone numbers. It is offered only to show the month and year of birth of Sondra Sikanovski and Mary Ellen S. The Court orders that Exhibit 3p remain under seal.

Exhibits 3r and 3t are paperwork approving FMLA leave for Sondra Sikanovski and Mary Ellen S. The documents reference personal health information, including the length of required FMLA leave and prior use of FMLA leave. Because of the sensitive, personal nature of the

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information regarding nonparties and because the Court's reliance on these exhibits is limited, the Court orders that Exhibits 3r and 3t remain under seal.

Exhibit 3s contains disciplinary records for Sikanovski, a nonparty. The only relevant information in this exhibit are the dates of February and April 2012 and that Sikanovski's district manager at that time was Wendy Hohman. The Court orders that Exhibit 3s remain under seal.

Exhibit 3u is Mary Ellen S.'s resignation letter. Mary Ellen S. is a nonparty. However, quotation of portions of this letter are necessary for the Court's analysis. Therefore, the Court orders Perry to file a redacted version of Exhibit 3u, redacting all names, including Mary Ellen S.'s full name, except for "Nikki Loescher" or "Nikki" and redacting the author's associate ID number.

Exhibit 3v is the BBW ethics and compliance hotline form for the complaint made by BBW employee Candace K, who is a nonparty. As with Exhibit 3v, quotation of portions of this form are necessary to the Court's analysis. The Court orders Perry to file a redacted version of Exhibit 3v, removing all instances of Candace K's last name (unless only the last name appears, in which case the K shall be left), phone number, and email address; removing all but the "B" of the last name of Krissy B. (including when only the last name of Krissy B. appears); and redacting the full name of any other individuals other than Vanessa Lea or McKay-Loescher.

The Court finds that Exhibits 3q (the federal civil complaint filed by Sondra Sikanovski, which is a public record), 3w (an anonymous complaint), and 5 should be unsealed.


Bath & Body Works, LLC ("BBW") is a nationwide retailer that operates hundreds of stores across the United States and throughout the State of Indiana. BBW's in-store management structure, beginning with the lowest level, includes key holders, co-managers, and store managers. This in-

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store management is known as the Sales Leadership Team. Store managers report to district managers, district managers to regional managers, and regional managers to a vice-president of business. BBW has a human resources ("HR") department and a separate ethics and compliance hotline, which allows employees to voice their concerns, anonymously if they choose.

Plaintiff Julie Perry began working for BBW on November 18, 2001. She was the store manager at the Valparaiso, Indiana location for seven years before being moved to the Merrillville, Indiana store in the position of store manager. As a store manager, Perry was responsible for knowing and enforcing BBW policies and procedures. Perry worked at the Merrillville store for approximately one year before her employment was terminated.

Defendant Lindsay McKay-Loescher ("McKay-Loescher") was born in 1980 and was 29 years old when she started working for BBW in February 2010. When she was hired, she received three weeks of technical in-store training.

On February 20, 2010, Perry received a sales bonus from BBW.

On April 1, 2010, McKay-Loescher became the district manager of the geographic area that included Perry's store. When McKay-Loescher became her supervisor, Perry began keeping notes of work events.

On April 6, 2010, Perry received a performance review from Marge Keller, who had been Perry's district manager until April 1, 2010. Keller rated Perry as either a three-"fully meets expectations," or a two-"exceeds expectations," in every category. (Pl. Br., Ex. 4). Perry was rated as a three "overall" with a rating of three for "overall results" and as a two for "overall competency." (Pl. Br., Ex. 4). Perry was told that no employee at BBW is given the highest ranking of one.

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According to Perry's notes, before McKay-Loescher became district manager on April 1, 2010, she "secret shopped" Perry's store and told Perry during a phone conversation that she "did not like what she saw." (Def. Br., Exh. B., p. 37 (Perry Dep. Exh. 12)). McKay-Loescher had weekly communications with BBW's corporate HR department regarding the stores for which she was the district manager. McKay-Loescher completed a "District Visit Summary" with a visit date of April 19, 2010, for a visit to Perry's...

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