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Eshcoff v. BAE Systems Controls, Inc.

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

May 15, 2017



          Robert L. Miller, Jr. Judge

         Renee Eshcoff was terminated from her position as a Safety, Health, and Environment Specialist with BAE Systems Controls, Inc. in 2015. She brought suit against BAE Systems in state court alleging that she was terminated in violation of Indiana Code § 22-5-3-3 (Count I) and Indiana Occupational Safety and Health Administration regulations (Count II); the complaint was removed to this court based on diversity jurisdiction.[1] BAE Systems moved for summary judgment and the court heard arguments on defendant's motion on March 15, 2017. For the following reasons, the court grants BAE Systems' motion.

         I. Standard of Review

         Summary judgment is appropriate when the record demonstrate that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Protective Life Ins. Co. v. Hansen, 632 F.3d 388, 391-92 (7th Cir. 2011). The court construes the evidence and all inferences that reasonably can be drawn from the evidence in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The moving party bears the burden of informing the court of the basis for its motion and identifying the parts of the record that demonstrate the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. at 323. It can meet that burden by showing that there's no evidence to support the non-moving party's case. Id. at 325. Once the moving party has met its burden, the opposing party can't rest upon the allegations in the pleadings, but must “point to evidence that can be put in admissible form at trial, and that, if believed by the fact-finder, could support judgment in his favor.” Marr v. Bank of America, N, A., 662 F.3d 963, 966 (7th Cir. 2011); see also Hastings Mut. Ins. Co. v. LaFollette, No. 1:07-cv-1085, 2009 WL 348769, at *2 (S.D. Ind. Feb. 6, 2009) (“[i]t is not the duty of the court to scour the record in search of evidence to defeat a motion for summary judgment; rather, the nonmoving party bears the responsibility of identifying the evidence upon which he relies”); Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005) (summary judgment is “not a dress rehearsal or practice run; it is the put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events”).

         II. Background

         Renee Eshcoff was a BAE Systems Safety, Health, and Environment Specialist at its Fort Wayne Facility. While employed by BAE Systems, Ms. Eshcoff complained in writing about health and safety issues in the Fort Wayne facility. Ms. Eshcoff alerted company representatives that soon after she arrived at BAE Systems, a co-worker asked her to submit inaccurate workplace injury rates to the Indiana Occupational Safety and Health Administration. Following an incident in which the fire alarms were triggered at the facility, Ms. Eshcoff complained that the company didn't have an adequate emergency response plan. She also reported concerns with the electrical system, ergonomic problems, and that employees were exposed to high levels of solder exhaust.

         Due to Ms. Eshcoff's complaints, BAE Systems' Director of Ethics and Business Conduct, the company's Director of Environment, Health and Safety, and others conducted an internal safety, health, and environment investigation and audit of the Fort Wayne facility in August 2014. The investigators found “[s]ubstantive [safety, health, and environment] issues occurring in [Fort] Wayne that have been known and unresolved for-in some cases-years”. The investigators' report noted that the safety, health, and environmental issues uncovered by the investigators validated Ms. Eshcoff's complaints, including her written reports that BAE Systems' emergency response procedure was noncompliant.

         The report also described management deficiencies that contributed to safety, health, and environmental issues going unresolved. The report named Ms. Eshcoff's direct and indirect supervisors, David Bernardini and Robert Aldrete, and described how they contributed to the issues found in the investigation. The report didn't confirm Ms. Eshcoff's claims regarding inaccurate data requested for an IOSHA report.

         A month after the investigators' findings were released, Mr. Bernardini and a human resources representative met with Ms. Eshcoff to “talk about how to get better as a team.” Mr. Bernardini reviewed a series of expectations for Ms. Eshcoff moving forward, including concerns about her allegedly missing work without permission.

         Mr. Aldrete had previously rebuked Ms. Eshcoff for disrespectful behavior toward him after an incident in a meeting. Ms. Eshcoff had emailed him an apology “for talking back to [him], ” which she described as “inexcusable, ” but later accused Mr. Aldrete of trying to humiliate and harass her so that she would just “shut up.” In February 2015, Ms. Eshcoff abruptly ended a meeting with Mr. Bernardini and others about a new area of responsibility for Ms. Eshcoff. She was placed on administrative leave after this incident. Earlier that month, the company launched an investigation of Ms. Eshcoff's time-card records to determine whether she was properly reporting her hours.

         Ms. Eshcoff's employment was terminated at the end of February; the company cited insubordination and inaccurate timekeeping as the basis for the disciplinary action. Ms. Eshcoff had never previously been formally disciplined for these issues and Mr. Bernardini, her direct supervisor, had rated her as a good performer during her annual performance reviews. Ms. Eshcoff brought suit against her former employer, alleging her termination violated Indiana's whistleblower statute and Indiana Occupational Safety and Health Administration regulations. BAE Systems moved for summary judgment on both claims.

         III. Discussion

         A. Whistleblower Retaliation Claim

         BAE Systems argues that Ms. Eshcoff can't prevail on her whistleblower retaliation claim under Ind. Code § 22-5-3-3 because no private cause of action is available to her under the statute. The Indiana Supreme Court hasn't addressed the issue, see, e.g., Ellis v. CCA of Tennessee LLC, 650 F.3d 640, 650- 51 (7th Cir. 2011), but our court of appeals has presumed that the statute provides a cause of action for certain forms of retaliation, including termination. Id. at 650-51. Sister district courts within the circuit also have presumed that the statute allows an employee to challenge a disciplinary action in a court. See Boyd v. Keystone Const., No. 1:14-CV-119-WTL-MJD, 2015 WL 4427630, at *4- 5 (S.D. Ind. July 20, 2015); Cole v. Major Hosp., No. 1:14-CV-00549-SEB, 2014 WL 6977296, at *5 (S.D. Ind. Dec. 5, 2014); Neumeister v. City of Greenfield, No. 1:10-CV-659-SEB-MJD, 2012 WL 1067905, ...

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