United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
L. Miller, Jr. Judge
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. 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
Standard of Review
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”).
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.
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
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.
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.
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.
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.
Whistleblower Retaliation Claim
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, ...