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Ripberger v. Corizon, Inc.

United States Court of Appeals, Seventh Circuit

December 10, 2014

DIANE M. RIPBERGER, Plaintiff-Appellant,
v.
CORIZON, INC., Defendant-Appellee

Argued: February 24, 2014.

Page 872

Appeal from the United States District Court for the Southern District of Indiana. No. 1:11 CV 01394-- Tanya Walton Pratt, Judge.

For Diane M. Ripberger, Plaintiff - Appellant: Richard L. Darst, Attorney, Cohen, Garelick & Glazier, Indianapolis, IN.

For Corizon, Incorporated, formerly known as: CORRECTIONAL MEDICAL SERVICES, INC., Defendant - Appellee: Edward E. Hollis III, Attorney, Faegre Baker Daniels Llp, Indianapolis, IN.

Before FLAUM and ROVNER, Circuit Judges and KENDALL, District Judge.[*]

OPINION

Page 873

Rovner, Circuit Judge.

Diane Ripberger lost her job as a substance abuse counselor for the Indiana Department of Corrections (" IDOC" ) when Corizon, Incorporated (" Corizon" ) contracted with IDOC to provide counseling for Indiana prisoners. Ripberger sued Corizon, claiming sex discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and age discrimination and retaliation under the Age Discrimination in Employment Act of 1967 (" ADEA" ), 29 U.S.C. § 621 et seq. The district court granted Corizon's motion for summary judgment, and Ripberger appeals. For the reasons stated below, we affirm.

I.

Because we are reviewing the district court's grant of summary judgment against Ripberger, we recount the facts in the light most favorable to her, noting any discrepancies in the parties' evidence where relevant. See Zepperi-Lomanto v. Am. Postal Workers Union, 751 F.3d 482, 483 (7th Cir. 2014). Ripberger, who was born in 1951, began working for IDOC as a substance abuse counselor in 1991. As relevant here, she returned to work as a counselor in March 2008 (after having retired in 2007) at IDOC's Pendleton Correctional Facility near her home in Anderson, Indiana. In addition to being a licensed social worker for the State of Indiana, Ripberger has a bachelor's degree in sociology

Page 874

and over 60 hours towards a master's degree in pastoral counseling. During the relevant time period, Ripberger worked as a Substance Abuse Counselor IV, counseling primarily Level 4 offenders in the Indiana Reformatory at Pendleton. Level 4 offenders are those who are serving very lengthy sentences and have committed serious or violent crimes.

A. Ripberger's Support of Connie Orton-Bell

Ripberger lost her job in 2010, when IDOC contracted out its substance abuse counseling program to Corizon. Ripberger alleges that Corizon's decision not to hire her stemmed in part from previous events involving her supervisor in 2009, Connie Orton-Bell. Mick Schoenradt, who was the Acting Substance Abuse Director for IDOC, supervised Orton-Bell. Sometime in 2009 and early 2010 both Orton-Bell and Ripberger complained that their desks were being used after hours. According to Ripberger, they were told it was " just" staff members, not inmates, using their desks for sex, and that if they found that troubling they could simply wash down their desks daily. Shortly thereafter, however, it came to light that Orton-Bell herself was having an affair with the Major in charge of custody, a sexual liaison that was apparently deemed unacceptable, despite IDOC's tolerance of the aforementioned sexual after-hours conduct. Ultimately, both Orton-Bell and the Major were terminated because of the affair, but unlike Orton-Bell, the Major was able to quickly receive unemployment benefits, keep all of his benefits (including his pension), and begin working again at the prison on a contract basis shortly thereafter. Orton-Bell filed a suit under Title VII alleging claims of sex discrimination, retaliation, and hostile work environment. The full details of Orton-Bell's complaints and her charge of discrimination can be found in Orton-Bell v. Ind., 759 F.3d 768 (7th Cir. 2014). Ripberger supported Orton-Bell's sex discrimination complaint by explaining to Orton-Bell how to file a grievance and sitting in on her hearings as a silent employee witness.

B. IDOC's Substance Abuse Recovery Program at Pendleton

IDOC organized its substance abuse counseling services around offenders categorized from Level 1 through 4. As stated above, Ripberger worked during the relevant time period with Level 4 inmates in an area of the Pendleton complex known as the Reformatory. There was also a " therapeutic community" for Level 2 and 3 inmates in a separate facility called the Community Industrial Facility. Level 1 inmates received therapy at still another location known as the Outside Dorm. Unlike the Reformatory, the Community Facility and the Outside Dorm were located outside of the fenced area on the Pendleton complex. At the time of the privatization, seven IDOC employees worked as substance abuse counselors in the three counseling areas at Pendleton. Three counselors, Diane Diggins, Kathryn Choate, and Randy Smith, worked with the Level 1 offenders in the Outside Dorm. Three other counselors, Avery Thomas, Joanne Massey-Neskov, and Anna Sasin, worked in the Community Industrial Facility with the Level 2 and 3 inmates. Ripberger was the only counselor working with Level 4 offenders in the Reformatory. She maintains that her primary caseload was not the Reformatory and that she provided therapy to all levels of offenders. Indeed, before 2010, Ripberger had worked several hours a day in the Outside Dorm, but in early 2010 when it became a therapeutic community providing continuous treatment in an inpatient setting, she no longer had a caseload there. It thus is

Page 875

undisputed that between March and August 2010 she did not counsel any inmates outside of the Reformatory and that she was also the only counselor assigned to the Reformatory. The Reformatory position was eliminated when IDOC outsourced the provision of counseling to Corizon.

C. IDOC's Decision to Privatize Counseling Services

In the summer of 2010, IDOC employed 93 substance abuse counselors at prisons throughout Indiana. At that time, IDOC determined it would outsource its substance abuse counseling positions to Corizon. Although Corizon planned to retain as many IDOC substance abuse counselors as possible, the contract between IDOC and Corizon provided that Corizon would hire only 88 substance abuse counselors. As Acting Substance Abuse Director for IDOC, Schoenradt was slated to continue supervising the substance abuse program for Corizon when the transition was completed in September 2010. To that end, Corizon delegated the hiring and placement decisions to Schoenradt.

Schoenradt created a staffing plan and a do-not-hire list based on the need to reduce employees and the needs at the various prisons. Ripberger did not appear on the do-not-hire list, which named a very few employees whose performance did not warrant continued employment. Schoenradt instead placed Ripberger's name next to Randy Smith on his staffing plan to indicate that one of the two of them would be hired for an open position at Pendleton. On a color-coded spreadsheet classifying IDOC employees ...


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