United States District Court, S.D. Indiana, Indianapolis Division
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY
William T. Lawrence, Judge United States District Court
cause is before the Court on the motion for summary judgment
filed by Defendant American United Life Insurance Company
(“AUL”) (Dkt. No. 46). The motion is fully
briefed and the Court, being duly advised,
GRANTS the motion for the reasons set forth
SUMMARY JUDGMENT STANDARD
Rule of Civil Procedure 56(a) provides that summary judgment
is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” In ruling on
a motion for summary judgment, the properly supported
evidence presented by the non-moving party must be believed,
and all reasonable inferences must be drawn in the
non-movant's favor. Zerante v. DeLuca, 555 F.3d
582, 584 (7th Cir. 2009) (“We view the record in the
light most favorable to the nonmoving party and draw all
reasonable inferences in that party's favor.”).
However, a party who bears the burden of proof on a
particular issue may not rest on its pleadings, but must show
what evidence it has that there is a genuine issue of
material fact that requires trial. Johnson v. Cambridge
Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003).
Finally, the non-moving party bears the burden of
specifically identifying the relevant evidence of record, and
“the court is not required to scour the record in
search of evidence to defeat a motion for summary
judgment.” Ritchie v. Glidden Co.,
242 F.3d 713, 723 (7th Cir. 2001).
Court's Local Rule 56-1(f) provides:
(f) Court's Assumptions About Facts. In
deciding a summary judgment motion, the court will assume
that: (1) the facts as claimed and supported
by admissible evidence by the movant are admitted without
controversy except to the extent that:
(A) the non-movant specifically controverts
the facts in that party's “Statement of Material
Facts in Dispute” with admissible evidence; or
(B) it is shown that the movant's facts
are not supported by admissible evidence; or
(C) the facts, alone or in conjunction with
other admissible evidence, allow the court to draw reasonable
inferences in the non-movant's favor sufficient to
preclude summary judgment.
(2) facts that a non-movant asserts are true
to the extent admissible evidence supports them.
noted above, the Court must consider the properly supported
facts of record in the light most favorable to Plaintiff
Betty Yodhes, the non-moving party. The only evidence Yodhes
points to in her brief in opposition to the instant motion is
her own affidavit. AUL argues that many (24) of the facts
asserted by Yodhes in her Statement of Material Facts in
Dispute are not properly supported and must not be considered
by the Court because, while they appear in Yodhes'
affidavit, they contradict or are inconsistent with her
rule in this circuit is clear:
“As a general rule . . . this circuit does not permit a
party to create an issue of fact by submitting an affidavit
whose conclusions contradict prior deposition or other sworn
testimony.” Buckner v. Sam's Club, Inc.,
75 F.3d 290, 292 (7th Cir. 1996); see also Bank of Ill.
v. Allied Signal Safety Restraint Sys., 75 F.3d 1162,
1168 (7th Cir. 1996) (“We have long followed the rule
that parties cannot thwart the purposes of Rule 56 by
creating ‘sham' issues of fact with affidavits that
contradict their prior depositions.”). Thus, where
deposition testimony and an affidavit conflict, “the
affidavit is to be disregarded unless it is demonstrable that
the statement in the deposition was mistaken, perhaps because
the question was phrased in a confusing manner or because a
lapse of memory is in the circumstances a plausible
explanation for the discrepancy.” Russell v.
Acme-Evans Co., 51 F.3d 64, 67-68 (7th Cir. 1995). In
the alternative, supplemental affidavits can be employed
“to clarify ambiguous or confusing deposition
testimony.” Buckner, 75 F.3d at 292.
Dunn v. Menard, Inc., 880 F.3d 899, 910-11 (7th Cir.
2018). Therefore, where the difference between Yodhes'
deposition testimony and affidavit, as asserted by AUL, could
be material to the Court's decision, the Court has
addressed below AUL's assertion that the statement in the
affidavit should be disregarded. Otherwise, the Court has
simply omitted the fact or, if the fact serves to give
context to Yodhes' argument, has included it in the
recitation of facts below, forgoing, in the interests of
judicial economy, an analysis of whether it should be
excluded under the sham affidavit rule.
an insurance company headquartered in Indianapolis, Indiana.
Yodhes began her employment with AUL in September 2014 as a
Plan Manager in AUL's Plan Services-Trust Department. As
a Plan Manager, Yodhes served clients who purchased
retirement plans from AUL for the benefit of their employees.
Her duties included anticipating and meeting clients'
day-to-day needs, ensuring that client requests were timely
addressed, and “just making sure the clients stayed
happy.” Dkt. No. 48-1 at 5.
Goble, Manager of Plan Services-Trust, was Yodhes' direct
supervisor. Assistant Vice President of Plan Services, Joe
Miller, led the Plan Services Department and directly
supervised Goble. Goble supervised both Plan Managers and
Plan Services Consultants. Plan Managers and Plan Services
Consultants perform the same basic job duties and are
collectively referred to as Plan Managers. While Yodhes was
employed, two female Plan Managers and one male Plan Manager
separated from AUL, and four male Plan Managers were hired.
The four newly hired males were Ed Spieth (October 24, 2014),
David Engel (December 15, 2014), Ken Pavnica (January 25,
2015), and John Peterson (February 2, 2015). Only Peterson
reported directly to Goble. When Yodhes began, thirteen of
eighteen Plan Managers were female. Just prior to Yodhes'
resignation, twelve of nineteen Plan Managers were female. Of
the Plan Managers who reported to Goble, half were male and
half were female.
Plan Managers worked on different plans, which varied by
number of participants and amount of assets. Each
client's requirements were unique, with some requiring
more communication, some requiring additional administrative
tasks, some requiring faster turnaround times on assigned
tasks, and some being easier to work with than others.
before her employment began, AUL provided Yodhes with online
training materials, which AUL referred to as “Learning
Links, ” that Yodhes was expected to review and
complete during the first thirteen weeks of her employment.
Yodhes reviewed only some of the materials and took just one
of the Learning Links examinations.
Yodhes' opinion that, contrary to AUL's assertion
that the Learning Links were intended to be a self-directed
training program, in practice, employees-including Yodhes-
required additional input and oversight by an experienced
Plan Manager. In Yodhes' opinion, AUL did not provide
Yodhes with the necessary support to complete the Learning
Links. In addition, Yodhes believes that AUL did not give her
sufficient time to complete the Learning Links sessions
because she was assigned a full caseload approximately two
weeks after she started working at AUL. AUL employed an
outdated computer system and did not provide Yodhes with
adequate training regarding how to operate the system,
perform the complex data entry maneuvers necessary, or
interface across several programs to find necessary
information. AUL provided Yodhes with no training or guidance
with respect to each client's particular needs or
preferences, leaving her to try to learn that information
through trial and error.
addition to the Learning Links training, the Plan
Services-Trust Department provided a mentorship program
connecting new Plan Managers with more experienced Plan
Managers who were designated as “subject matter
experts.” Goble arranged for Yodhes to shadow eight
Plan Managers during her first three weeks at AUL, to observe
their day-to-day duties. This permitted Yodhes to observe the
subject matter experts as they worked on their own caseloads,
but there was insufficient time for them to impart their
expertise regarding the subject matters
identified. Goble also held periodic (weekly or at
least monthly) one-on-one sessions with Yodhes during which
Yodhes could ask questions or get help with any critical
matters. Yodhes could also email Goble to ask questions.
September 24, 2014, a Plan Manager named Jennifer Wallace
unexpectedly left AUL. When a Plan Manager leaves or
transfers, the clients he or she serviced are assigned to
other Plan Managers. Rather than disperse Wallace's
caseload among multiple Plan Managers, AUL opted to assign
Wallace's entire caseload to Yodhes, even though she had
only been on the job for about two weeks and had not yet been
properly trained with respect to the use of AUL's
computer system. Goble believed that Yodhes' seventeen
years of prior experience in the retirement services industry
would help her in servicing Wallace's clients.
the clients Yodhes received from Wallace's caseload was
MNS. Ilan Amir, an AUL employee who served as the
Relationship Manager for the MNS plan, advised Yodhes on how
to best service the MNS plan to keep the client happy. In
conjunction with her work on the MNS plan, Yodhes was
required to create agendas for calls with the client and send
Outlook calendar appointments in order to schedule calls with
client contacts. Yodhes viewed these as secretarial duties.
The agendas were created with information in notes that
Yodhes took during calls with MNS. Wallace, who serviced the
plan before Yodhes, also had to do these tasks. These tasks
were not required by Goble, but rather by the client contacts
for MNS. Yodhes spoke with some, but not all, of her fellow
Plan Managers (both males and females) about creating agendas
for calls, and they told her that their clients did not
require that of them. Yodhes testified that she did not know
whether other Plan Managers were required to send calendar
appointments to schedule calls with clients.
around the end of September 2014, Yodhes noticed that Miller
would stare at her breasts when he would talk to her. He made
no effort to conceal what he was doing, often staring for
long periods of time. This occurred between ten and twenty
times throughout Yodhes' employment and became more
pronounced and more frequent as time went on.
October 2014, Amir told Yodhes he was disappointed with her
performance, as she was not handling the plan in the manner
he had instructed. In mid-November 2014, AUL Client Account
Executive, Ben Winecki, reached out to Goble and Miller to
tell them that MNS had lost confidence in Yodhes because of
her lack of attention to detail and poor communication
practices and requested that the plan be reassigned. Yodhes
asked to be removed from the MNS plan. Goble consulted with
Mona Duncan, another Manager of Plan Services-Trust, and upon
considering the plan assignment factors, decided to move the
MNS plan to Naomi Miller, a longtime Plan Manager, and assign
ten of Naomi Miller's plans to Yodhes. Unlike the MNS
plan, which was fairly new to AUL, the ten plans were
well-established, two sets of the plans had the same client
contacts (thus reducing communication needs), and one of the
plans had just one participant. At least six of the ten plans
had lower asset values than the MNS plan.
November 2014, AUL's Human Resources Department conducted
focus group discussions with Plan Managers in the Department.
Based on the recommendations from the focus groups, Goble
revamped the training regimen. Beginning in mid-December
2014, training for new and recent hires covered the same
information provided in Learning Links, but was conducted in
a group setting. Yodhes had not been provided with this type
of formal training session when she was initially hired and
was only invited to attend some of the sessions when they
were offered to her new male coworkers.
instead of relying solely on subject matter experts, it was
decided that new and recent hires would be assigned an
individual mentor to assist with challenges as they arose.
Although individual mentoring was not rolled out to the team
until January 22, 2015, Goble informed ...