United States District Court, S.D. Indiana, Indianapolis Division
BILLIE J. HOWARD, Plaintiff,
INDIANAPOLIS PUBLIC SCHOOLS, COMMUNITY HEALTH NETWORK/GALLAHUE MENTAL HEALTH SERVICES, Defendants.
EVANS BARKER, UNITED STATES DISTRICT COURT JUDGE.
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. 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.
reasons detailed below, we GRANT summary
judgment in favor of the Defendants.
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.
Agreement Between Community and IPS
provided counseling and mental health services to IPS's
students through Community's school-based programs.
Affidavit of Joan Reed (“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.
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.
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. 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
Plaintiff's Employment as a School-Based
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.
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 (“Heiple Decl.”)
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.
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.
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. 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.
The Incident at Issue
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.
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. 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.
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
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.
Investigation of the Incident
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.
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.
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.
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 Aff.”) ¶ 5.
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.
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.
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.
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.
Plaintiffs Report of IPS Teacher Conduct
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. ¶ ...