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Howard v. Indianapolis Public Schools

United States District Court, S.D. Indiana, Indianapolis Division

March 29, 2017

BILLIE J. HOWARD, Plaintiff,



         This cause is before the Court on Defendants' Motions for Summary Judgment [Dkt. No. 120 (Indianapolis Public Schools (“IPS”)); Dkt. No. 124 (Community Health Network/Gallahue Mental Health Services (“Community”)], both filed on October 10, 2016 pursuant to Rule 56 of the Federal Rules of Civil Procedure.[1] Plaintiff Billie J. Howard brought this action against Defendants IPS and Community alleging that she was discriminated against on the basis of her age in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621, et seq. and on the basis of her race in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e and 42 U.S.C. § 1981 (“§ 1981”); and that she was retaliated against for reporting inappropriate conduct, in violation of Title VII “and/or” the ADEA.

         For the reasons detailed below, we GRANT summary judgment in favor of the Defendants.[2]

         Factual Background[3]

Plaintiff is a African-American female over the age of 40 who was employed by Community as a School-Based Therapist. She was assigned to IPS James A. Garfield School #31 (“IPS #31” or “School”) for the 2013-14 school year. Following an incident on August 6, 2013, IPS requested that Ms. Howard not be placed in a position associated with IPS's emotional disabilities classrooms or IPS #31. Community terminated Ms. Howard after she was unable to secure another position at Community.

         A. Agreement Between Community and IPS

         Community provided counseling and mental health services to IPS's students through Community's school-based programs. Affidavit of Joan Reed[4] (“Reed Aff.”) ¶ 4. The parties have submitted two documents related to their contractual agreement: a Professional Services/Consulting Agreement and a Proposal Response. IPS proffered a Professional Services/Consulting Agreement, purportedly authenticated through Ms. Howard's deposition; however, that agreement is not signed and Ms. Howard could not testify that she had seen it before. Plaintiff's First Deposition taken on November 20, 2014 (“Pltf. First Dep.”) at 59 (“I don't recall this document.”), Ex. 12. We assume that if Exhibit 12 were the agreement between IPS and Community, IPS could produce an executed copy, authenticated by an IPS employee.

         Community submitted a portion of its Proposal Response as part of Ms. Reed's affidavit wherein she explained that the Proposal contained requirements to which Community agreed. Reed Aff. ¶ 6, Ex. A. Again, the Proposal does not bear the signature of either party and is an incomplete copy of that document. Id. It is unclear from the evidence whether the parties' agreement was ultimately reduced to writing and what was included in any such contract; however, Ms. Reed's undisputed testimony explains the parties' agreement and, thus, we accept Ms. Reed's attestations as to the terms of the contract between Community and IPS.

         Community delivered counseling and mental health services to IPS by assigning Community-employed therapists to IPS schools. Pursuant to the agreement between Community and IPS, “IPS did not decide who was placed in what school . . . [and] could not discipline Community employees or otherwise direct the work performed by Community employees under the contract.” Reed Aff. ¶ 5.[5] Community “agree[d] to immediately remove any service provider from service under [the Community-IPS] contract for any reason upon request by IPS, and replace the removed provider with qualified personnel.” Id. ¶ 6, Ex. A ¶ 1. It is undisputed that Ms. Howard did not participate in the negotiations of any contract between Community and IPS. Plaintiff's Second Deposition taken on September 2, 2015 (“Pltf. Second Dep.”) at 79:19-80:23.[6]

         B. Plaintiff's Employment as a School-Based Therapist

         Ms. Howard is a licensed Mental Health Professional Counselor and a Licensed Clinical Addiction counselor. Pltf. First Dep. at 11:12-12:3. She was employed by Community on two occasions: initially she worked as a Behavior Clinician “in or around 2007;” thereafter, she worked as a School-Based Therapist beginning in March 2013. Id. at 22:11-23:11; Pltf. Second Dep. at 11. Her latter role as a School-Based Therapist is the focus of this lawsuit.

         On January 15, 2013, Ms. Howard submitted an application for employment to Community, following which she was interviewed by Ms. Reed and two managers of the school-based program. Each interviewer was a Community employee at the time of the interview. Pltf. First Dep. at 15:4-13; Reed Aff. ¶ 7. Ms. Howard alleges that when she initially applied for a supervisory position with Community, she was informed by a “program director”, whose name Ms. Howard could not recall, that she “would be better suited for the IPS position” and that Community “looked at employees from within and younger blood.” Pltf. Second Dep. at 94:1-11. In any event, Ms. Howard was hired as a Community School-Based Therapist and on March 11, 2013, she began her employment, assigned to work with students at IPS #31 for the 2013-14 academic year. Reed Aff. ¶ 7; Declaration of Ann Toombs Heiple[7] (“Heiple Decl.”) ¶ 6.

         From June 10, 2013 through the conclusion of her employment with Community, Ms. Howard reported to Community employee Destinee Floyd, who during that time was Program Manager I of Community's School-Based Program in Behavioral Health Services. Affidavit of Destinee Floyd (“Floyd Aff.”) ¶ 3. Ms. Floyd reported to Ms. Reed, Operations Director of the School-Based Program for Behavioral Health Services. Reed Aff. ¶¶ 3, 8. For the duration of her employment as a School-Based Therapist, Ms. Howard received paychecks from Community, her benefits were arranged through Community, and she received her W-2 from Community. Pltf. First Dep. at 42:2-6, 169:12-19, 58:4-16, Ex. 1. Ms. Howard did not receive a W-2 from IPS at any time relevant to this action. Id. at 58:21-24. Community determined Ms. Howard's schedule, client hour expectations and documentation requirements, and Ms. Howard was subject to discipline by Community.Id. at 37:12-39:12, 51:8-25, 53:3-54:2. Following her termination, Ms. Howard identified Community as her employer when she filed a wage claim with the Indiana Department of Labor and when she filed an Unemployment Insurance Appeal. Id. at 77:7-24, Ex. 19; id at 79:6-21, Ex. 20.

         As a Community School-Based Therapist assigned to IPS #31, Ms. Howard's duties included “facilitating, monitoring, and providing comprehensive mental health care management and therapy services to mentally ill and emotionally disturbed students at [IPS #31 ].” Floyd Aff ¶ 5. In addition to counseling services and providing behavioral therapy, Ms. Howard's duties included escorting students off school property to medical and skill-building appointments, for example, the library. Pltf First Dep. at 37:12-22; Pltf Second Dep. at 12:3-19. While assigned to IPS #31, Ms. Howard was expected to abide by IPS #31 protocols and policies as well as Community's expectations. Floyd Aff. at ¶ 6. One such policy required “anyone who removes a child from the building to sign the student out on the ‘Student Sign Out/In' sheet located in the School's administrative office, ” which required identifying the time out of the building, return time, student name, room number, and signature of the individual removing the student from the building. Heiple Dec. ¶¶ 5, 9.

         Jacqueline Goldstein was a Community employee who worked as a Care Coordinator in Community's Behavioral Care Services department. Affidavit of Cory E. Liles (“Liles Aff.”) ¶¶ 5, 6.[8] In this role, Ms. Goldstein “was not based at any particular IPS school” and “regularly traveled to the homes and schools of the students with whom she worked.” Id. ¶ 9. Ms. Goldstein reported to William Wischnowski, a Community operations director. Id. at ¶ 7. Ms. Howard alleges Ms. Goldstein is Caucasian and under the age of 40 years. SAC ¶ 16.

         C. The Incident at Issue

         On the morning of August 6, 2013, during school hours, Ms. Howard and Ms. Goldstein removed a student from IPS #31 and accompanied that student to a medical appointment. Pltf First Dep. at 101:25-102:14, 103:15-23. Prior to the time of the appointment, Ms. Goldstein came to Ms. Howard's office to inform her that a student needed to be taken to a medical appointment off school property. Id. at 104:2-9. Ms. Goldstein and Ms. Howard retrieved the student from the classroom, informing the teacher that they were accompanying the student to a medical appointment. Id. at 106:4-7. They then took the student to the office where Ms. Howard told the school secretary that there was an emergency and asked the office to inform the teachers that she was leaving. Floyd Aff ¶ 15. Although Ms. Goldstein signed herself out when she left IPS #31 (she had signed herself in when she arrived at the School), according to the IPS # 31 sign out sheets, neither the student nor Ms. Howard was signed out of the building. Id. ¶¶ 15, 18. The school staff became confused because Ms. Howard told the teacher she was taking the student for an appointment, but then told the office that she had an emergency and the student was unaccounted for in the building or on the sign out sheet. This prompted the student's teacher, Principal Heiple, and three other staff members to search for the missing student. Heiple Dec. ¶¶ 7-8. The School then contacted Ms. Floyd, who contacted Ms. Howard, and Ms. Howard assured Ms. Floyd that the missing student was safely with her at a medical appointment and communicated as much to the student's teacher. Floyd Aff. ¶¶ 7-8.

         Although the sign out sheet shows differently, Ms. Howard believes that she saw Ms. Goldstein sign the student out before they left the school. Pltf. First Dep. at 106:25-107:1.[9] Ms. Howard maintains that it was common practice for her to not sign students out when she escorted them to appointments. Id. at 116:9-14. Ms. Howard testified that prior to removing the student from IPS #31 she informed her immediate supervisor, Ms. Floyd, of the medical appointment. Pltf. Second Dep. at 28:6-14.

         Ms. Floyd went to IPS #31 approximately two hours after speaking with Ms. Howard on the telephone. Upon arriving at the school, Ms. Floyd spoke with an office employee, Faye Carpenter, and the school principal, Ms. Heiple. Floyd Aff. ¶ 10-11. Although Ms. Carpenter knew that Ms. Howard was leaving the school, she was not aware that Ms. Howard was taking a student out of the school. Id. ¶ 10. Making reference to Ms. Howard's previous lack of communication with the School, Principal Heiple was particularly concerned with the Incident because it involved removal of a student from School and the possibility of liability because the School had “no concrete information to provide to the child's parents if they contacted the School regarding their child's whereabouts.” Id.

         When Ms. Floyd spoke with Ms. Howard, Ms. Howard shared general information about the purpose of the student's appointment, but did not provide complete details surrounding the circumstances of the Incident. Id. Ms. Floyd's ability to determine how to proceed was stymied by a lack of information from Ms. Howard. Id.

         D. Investigation of the Incident

          On the afternoon of August 6, 2013, after consulting with Principal Heiple and Community's Human Resources department, and after Ms. Howard refused to provide details of the student's removal from the School, Ms. Floyd informed Ms. Howard that she was to leave IPS #31 “to allow time for an investigation regarding IPS's concern” about the Incident. Id. ¶ 12. Ms. Howard was placed on administrative leave while Community investigated the Incident. Id. ¶ 18.

         Two days after the Incident, on August 8, Ms. Floyd and Ms. Reed met with Ms. Howard. Id. During this meeting, Ms. Howard insisted that the student had been signed out of the School, despite Ms. Floyd showing her copies of the IPS Sign Out/In sheet demonstrably showing that the student had not been signed out. Id.

         As a result of its investigation, Community concluded that it would take no disciplinary measures against Ms. Howard because, in its determination, she may not have understood IPS #31 's sign out procedures, and she did not intentionally fail to follow the correct process. Id. ¶ 20. However, IPS's Administrative Coordinator for Students with Emotional Disabilities, William Robinson, conducted an investigation on behalf of IPS.

         His investigation involved communicating with Principal Heiple and the office secretary, reviewing the August 6 “Student Sign Out/Sign In” sheet, and speaking with other individuals at the School. Robinson Dec. ¶¶ 4-5. He concluded that Ms. Howard had removed the student from the school without signing the student out. Id. ¶¶ 3, 7. On August 13, 2013, Mr. Robinson informed Community in writing that “IPS did not want [Ms. Howard] returned to School #31 or assigned to any position associated with IPS'[s] emotional disabilities classrooms” as a result of Howard's lack of communication, particularly related to the Incident and safety concerns. Reed. Aff. ¶ 11. This decision was communicated to Ms. Howard by Nancy Orbaugh, a member of Community's Human Resources Department. Pltf. First Dep. at 126:20-127:8; Reed Aff. ¶ 12. At that time, Ms. Howard raised some concerns about the manner in which she was treated. Affidavit of Sharon McCullough (“McCullough[10] Aff.”) ¶ 5.

         Ms. Reed testified that Community lacked the authority to keep Ms. Howard at IPS #31 over the school's objection. Reed Aff. ¶ 12. However, neither Mr. Robinson nor Principal Heiple made any requests or recommendations with regard to Ms. Howard's employment with Community. Heiple Dec. ¶ 12; Robinson Dec. ¶ 10. Community placed Ms. Howard on leave with “for a period of time to locate another role within Community” but did not terminate her at that time. Reed Aff. ¶ 15. After Ms. Howard was removed from IPS #31, Community filled her position with another African-American female. Id. ¶ 13.

         Although IPS was concerned about Ms. Howard's conduct, it apparently did not express any similar concern about Ms. Goldstein's conduct. According to Ms. Reed, she was unaware of any IPS teacher or official reporting to Community that Ms. “Goldstein improperly removed a student from IPS school grounds.” Reed Aff ¶ 17. Furthermore, IPS made no request following the Incident that Ms. Goldstein not return to IPS #31 or any other IPS school. Id.

         Community held a third meeting with Ms. Howard on August 22, 2013. Reed Aff. ¶ 15; Floyd Aff. ¶ 24. This meeting was prompted by Ms. Howard expressing concerns about how she had been treated. McCullough Aff. ¶¶ 5-6; Floyd Aff. ¶ 24. However, during this meeting Ms. Howard did not provide any details about her concern of mistreatment. McCullough Aff. ¶ 6.; Reed Aff. ¶ 15; Floyd Aff. Community concluded its investigation of the concerns raised by Ms. Howard in early October 2013, finding no evidence of mistreatment. Ms. McCullough then met with the Ms. Howard to inform her that the investigation had ended, her paid leave had ended and that, in compliance with Community policy, Ms. Howard could remain on unpaid leave for up “three months after her assignment with IPS #31 ended, ” which in this case was until November 11, 2013. McCullough Aff. ¶ 7. The purpose of the leave was to give Ms. Howard an opportunity to pursue other positions in Community's network. Id.

         Ms. Howard remained on unpaid leave with Community until her employment was terminated on November 11, 2013. Pltf First Dep. at 60:16-25, Ex. 10; Liles Aff. ¶¶ 11, 12; McCullough Aff. ¶ 8 (Community has placed other employees on administrative leave (over and under the age of 40 years and Caucasian and African-American alike) and when they did not secure another position during their administrative leave, their employment was terminated.). During this time, Ms. Howard applied to “several” unidentified Community positions but did not secure any of these positions, and her employment was terminated. Pltf First. Dep. at 56:10-58:1; McCullough Aff. ¶ 8; Liles Aff. ¶ 11.

         E. Plaintiffs Report of IPS Teacher Conduct

         In May 2013, while still employed as a Community School-Based Therapist, Ms. Howard reported to Ms. Floyd and Ms. Reed an incident where she (and Ms. Floyd) observed a teacher at IPS #31 slap a student. Ms. Howard alleges that Ms. Floyd and Ms. Reed discouraged her from sharing this concern with IPS at that time. Pltf. Second Dep. at 77:8-14. Although Ms. Floyd believed the slapping incident was an accident, and Ms. Howard agreed and did not believe the incident warranted a report to Child Protective Services, Ms. Floyd believes she nonetheless discussed Ms. Howard's concern “with someone at IPS shortly after [her] discussion with [Ms. Howard].” Floyd Aff. ¶ ...

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