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Barbera v. Pearson Education, Inc.

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

December 28, 2017

Vicki Barbera, Plaintiff,
Pearson Education, Inc., Defendant.


          Hon. Jane Magnus-Stinson, Chief Judge

         Plaintiff Vicki Barbera, who is female, worked for Defendant Pearson Education, Inc. (“Pearson”), an education publishing company, for 27 years. During her tenure, Ms. Barbera worked in a variety of roles, most recently as a Manager of Business Analysis. In January 2016, Pearson announced that 700 warehouse employees - including Ms. Barbera - would no longer be employed by Pearson but would, instead, be employed by R.R. Donnelley & Sons Company (“R.R. Donnelley”). After Ms. Barbera declined to accept a job offer from R.R. Donnelley, she brought this lawsuit against Pearson alleging sex discrimination and a violation of the Equal Pay Act. Pearson moved for summary judgment, [Filing No. 50], and that motion is now ripe for the Court's review. In addition, Ms. Barbera filed an Objection to the Magistrate Judge's Order on Plaintiff's Motion for Sanctions, [Filing No. 66], which the Court will also consider herein.


         Standard of Review

         A motion for summary judgment asks the Court to find that a trial is unnecessary because there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). As the current version of Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed. R. Civ. P. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed. R. Civ. P. 56(c)(4). Failure to properly support a fact in opposition to a movant's factual assertion can result in the movant's fact being considered undisputed, and potentially in the grant of summary judgment. Fed. R. Civ. P. 56(e).

         In deciding a motion for summary judgment, the Court need only consider disputed facts that are material to the decision. A disputed fact is material if it might affect the outcome of the suit under the governing law. Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir. 2009). In other words, while there may be facts that are in dispute, summary judgment is appropriate if those facts are not outcome determinative. Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir. 2005). Fact disputes that are irrelevant to the legal question will not be considered. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         On summary judgment, a party must show the Court what evidence it has that would convince a trier of fact to accept its version of the events. Johnson v. Cambridge Indus., 325 F.3d 892, 901 (7th Cir. 2003). The moving party is entitled to summary judgment if no reasonable fact-finder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The Court views the record in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Darst v. Interstate Brands Corp., 512 F.3d 903, 907 (7th Cir. 2008). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. O'Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011). The Court need only consider the cited materials, Fed. R. Civ. P. 56(c)(3), and the Seventh Circuit Court of Appeals has “repeatedly assured the district courts that they are not required to scour every inch of the record for evidence that is potentially relevant to the summary judgment motion before them, ” Johnson, 325 F.3d at 898. Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010).


         Evidentiary Matters

         Before setting forth the facts in this case, the Court will first consider Ms. Barbera's Objection to the Magistrate Judge's Order on Plaintiff's Motion for Sanctions. [Filing No. 66 (objecting to Filing No. 62).]

         On November 22, 2017, the Magistrate Judge assigned to this case issued an Order on Plaintiff's Motion for Sanctions. [Filing No. 62 (granting in part and denying in part Filing No. 48)]. The main point of contention concerned an email Ms. Barbera alleges she sent to Michael Nathanson, Pearson's Senior Vice President of Distribution, in January 2016. [Filing No. 62 at 3.] During discovery, Pearson did not produce Ms. Barbera's email exchange with Mr. Nathanson. [Filing No. 62 at 5.] The Magistate Judge found that “[t]he record before the court shows that Pearson should reasonably have anticipated litigation involving Ms. Barbera and the denial of severance pay some time in February 2016, ” [Filing No. 62 at 5], and that “[w]hile Pearson gives plausible reasons why the email exchange might not have been available to it even with the best litigation hold protocol, it has not described the actual protocol it followed, ” [Filing No. 62 at 10]. Accordingly, the Court determined that a remedy should be afforded to Ms. Barbera. However, the Court found that Pearson did not act with the intent to deprive Ms. Barbera of the information and, therefore, declined to impose sanctions pursuant to Fed. R. Civ. P. 37(e)(2). Instead, the Court held that any prejudice could be cured by requiring that certain facts about the contents of the email exchange be taken as true, specifically paragraphs 1-6 of Ms. Barbera's proposed stipulations of fact, at Filing No. 49-1. [Filing No. 62 at 13.]

         On December 4, 2017, Ms. Barbera filed an Objection to the Magistrate Judge's Order on Plaintiff's Motion for Sanctions, arguing that the Order is “clearly erroneous or is contrary to law” under Fed. R. Civ. P. 72(a). [Filing No. 66 at 1.] Ms. Barbera contends that the Court's holding hinges on its finding that Ms. Barbera “did not print the email exchange and give it to her lawyer” while she remained employed with Pearson. [Filing No. 66 at 2.] She alleges that this finding “improperly shifts the burden of preservation away from the employer” and ignores the fact that Ms. Barbera had signed a confidentiality agreement with Pearson that prevented her from printing a hard copy. [Filing No. 66 at 2-3.] As such, Ms. Barbera argues that the Magistrate Judge's finding should be set aside, that the jury should be instructed to take as true all paragraphs of Ms. Barbera's proposed stipulations of fact, and that the Court should consider additional sanctions under Rule 37(e)(2) for Pearson's destruction of her entire email account. [Filing No. 66 at 8.]

         Pearson responds by contending that the Magistrate Judge's Order is not clearly erroneous because Ms. Barbera “has no evidence showing Pearson destroyed any evidence - including the subject email exchange - in bad faith or with the intent to deprive her of its use in litigation.” [Filing No. 68 at 3.] Pearson additionally argues that this Court may not consider the contents of the confidentiality agreement because Ms. Barbera did not submit it in her original motion for sanctions. [Filing No. 68 at 3.] Even if the Court did consider the substance of the confidentiality agreement, Pearson argues that the email does not fall within its ambit because it reveals no confidential information. [Filing No. 68 at 5.]

         In her reply brief, Ms. Barbera reiterates her argument that the Magistrate Judge's decision was clearly erroneous because it would “inappropriately shift the burden to the employee plaintiff, in virtually every employment case, to predict which emails will be most important to her case (without the benefit of discovery), and print a hard copy to ensure their use in litigation.” [Filing No. 69 at 5 (emphasis in original).] In addition, Ms. Barbera urges the Court to issue harsher sanctions under Rule 37 because the Magistrate Judge's decision “failed to address the destruction of Plaintiff's entire email account.” [Filing No. 69 at 5-8.]

         Fed. R. Civ. P. 72(a) provides that a district judge must consider timely objections and modify or set aside any part of a magistrate judge's order that is “clearly erroneous or is contrary to law.” Clear error means that the district court may overturn a magistrate judge's ruling “only if the court is left with the definite and firm conviction that the magistrate judge made a mistake.” Pain Ctr. of SE Indiana, LLC v. Origin Healthcare Sols., LLC, WL 6674745, at *2 (S.D. Ind. Nov. 25, 2014) (citing Weeks v. Samsung Heavy Indus. Co., 126 F.3d 926, 943 (7th Cir. 1997)). This is an “extremely deferential standard” and the district court “may not reverse the magistrate judge's decision simply because the district court judge would have come to a different conclusion.” McGuire v. Carrier Corp., 2010 WL 231099, at *1 (S.D. Ind. Jan. 13, 2010) (citing Pinkston v. Madry, 440 F.3d 879, 888 (7th Cir. 2006)).

         In this case, the Court is not left with the definite and firm conviction that the Magistrate Judge made a mistake in finding no evidence that Pearson acted in bad faith or with the intent to deprive Ms. Barbera of use of the email in litigation. With regard to the confidentiality agreement, Pearson is correct in pointing out that it is impermissible for the Court to consider evidence submitted for the first time in an objection to a magistrate judge's ruling. See Pain Ctr., 2014 WL 6674745, at *2 (disregarding new evidence because defendants' assertion of such facts in an objection to a magistrate judge's ruling was “simply too late”). However, setting aside the issue of whether the confidentiality agreement barred Ms. Barbera from retaining the email in question, Ms. Barbera has not identified and the Court has not found any evidence showing bad faith or intent to deprive. Accordingly, Ms. Barbera's Objection to the Magistrate Judge's Order on Plaintiff's Motion for Sanctions, [Filing No. 66], is OVERRULED. For the purposes of considering Pearson's Motion for Summary Judgment, the Court will accept as true the facts set forth in paragraphs 1-6 of Ms. Barbera's proposed stipulations of fact. [Filing No. 49-1.]


         Statement of Facts

         The following factual background is set forth pursuant to the standards detailed in Part I. The facts stated are not necessarily objectively true, but as the summary judgment standard requires, the undisputed facts and the disputed evidence are presented in the light most favorable to “the party against whom the motion under consideration is made.” Premcor USA, Inc. v. American Home Assurance Co., 400 F.3d 523, 526-27 (7th Cir. 2005).

         Pearson is an education publishing and assessment company that provides educational products to pre-K-12 education, higher education, and professional customers. [Filing No. 50-3 at 2.]

         During all times relevant to Ms. Barbera's case, the following individuals were employed by Pearson: Deborah Freeman, also known as Debbie Lindsay, was the Director of Human Resources, [Filing No. 51 at 23-24]; Michael Nathanson was the Senior Vice President of Distribution, Customer Services, and Transportation, [Filing No. 50-5 at 2]; Michael Scheuring was the Director of Inventory, [Filing No. 50-3 at 2]; and Laura Dwyer served as a Manager of Business Analysis at Pearson's Cranbury facility, [Filing No. 51 at 15]. Meanwhile, Andrew Wallace was in charge of the programming staff and Mike Nicholson was in charge of networking, with neither having responsibility for a specific facility. [Filing No. 51 at 15.]

         Ms. Barbera began working for Pearson in 1989. [Filing No. 51 at 6.] She is a graduate of North Texas State University, now known as the University of North Texas, where she earned a Bachelor's degree in Music, and Indiana University, where she earned a Master's of Business Administration in finance. [Filing No. 51 at 4.] She describes herself as a Mensan, [Filing No. 51 at 6], and prior to becoming employed by Pearson, Ms. Barbera was employed by Eli Lilly and the First National Bank of Chicago, and worked on a temporary basis, [Filing No. 51 at 5].

         Ms. Barbera was initially hired by Pearson as a Business Manager. [Filing No. 51 at 6.] Her subsequent roles at Pearson include Manager of Production Control, Project Lead, Business Manager of Business Systems, [Filing No. 51 at 7], and Manager of Distribution Systems. [Filing No. 51 at 9]. At all times relevant to her case, Ms. Barbera served as Manager of Business Analysis at Pearson's Indy North facility. [Filing No. 51 at 15.][1]

         A. Pearson Severance Policies and Voluntary Separation Plans

         On April 1, 2007, Pearson issued a severance policy (the “Severance Policy”) that applied to all full time employees. [Filing No. 50-4 at 6.] The Severance Policy was subsequently revised on November 1, 2013, [2] and provided as follows:

Only regular full-time and short-hour Pearson Education and NCS Pearson employees whose employment Is involuntarily terminated for reasons other than cause (as defined below) are eligible to receive severance pay. Employees who leave the company voluntarily, or who are discharged for cause, will not be eligible for severance pay. Term of project, part-time, temporary, seasonal, per diem workers, freelancers, consultants and independent contractors, are not eligible to receive severance pay.

         [Filing No. 50-4 at 6.] In addition, the Severance Policy provided that:

Severance as a Result of Merger/Acquisition
Notwithstanding any other provision of this Policy, no severance will be paid to an employee terminated as a result of a sale of assets, sale of stock, merger, consolidation, liquidation, dissolution or any other transaction when such employee is offered employment by the purchaser or another employer in connection with the transaction, regardless of whether the position offered Is comparable to the employee's current position or is accepted by the employee.

[Filing No. 50-4 at 11.]

         In or around 2013, Pearson began to reduce the size and scope of its warehouses in order to transition from the print business to digital products. [Filing No. 50-4 at 3.] To that end, Pearson issued a Voluntary Separation Plan on July 8, 2013 (the “2013 VSP”) in order to reduce the number of management positions by offering “financial incentives for eligible employees to voluntarily separate from service with the company.” [Filing No. 50-4 at 18.] The 2013 VSP was not offered to employees who submitted notice of their resignation prior to the effective date, or to employees who worked in the finance or systems departments. [Filing No. 50-4 at 18.] The 2013 VSP provided for the following plan benefit:

• Lump Sum Payment 2 weeks of pay for every full year of service to the company (max. of 26 weeks]Additional month of pay (transition bonus) as an incentive ...

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