United States District Court, S.D. Indiana, New Albany Division
ENTRY ON DEFENDANT’S MOTION FOR SUMMARY
RICHARD L. YOUNG, JUDGE
Rick Griffin is a former employee of Defendant Duke Energy
Indiana, LLC. Because of personal health issues, Plaintiff
requested and was granted leave pursuant to the Family and
Medical Leave Act of 1993 (“FMLA”). Upon his
return from FMLA leave, Defendant terminated
October 5, 2017, Plaintiff filed a complaint alleging
Defendant interfered with the exercise of his FMLA rights and
retaliated against him for taking FMLA leave. On December 14,
2018, Defendant filed a Motion for Summary Judgment; the
Motion is now fully briefed. The court, having read and
reviewed the parties’ submissions, the designated
evidence, and the applicable law, now GRANTS
Defendant’s Motion for Summary Judgment.
worked for Defendant, a national power company, for nearly
twenty-seven years. (Filing No. 43-1, Ex. 1, Deposition of
Rick Griffin (“Plaintiff Dep.”) at 86, 235). He
began his employment in October 1990 as a senior meter
reader. (Id. at 86). In October 2016, Plaintiff was
appointed interim C&M (Construction & Maintenance)
field supervisor in Madison, Indiana. (Id. at 146;
Filing No. 43-2, Ex. 2, Declaration of Andrew Cassidy with
exhibits (“Cassidy Decl.”) at 1 ¶ 4). As a
field supervisor, Plaintiff was expected to “assign and
manage field crews in his area, exercise leadership in his
decision-making, and set an example for his crews.”
his employment, Plaintiff had access to Defendant’s
Information Technology (“IT”) Asset Policy, Phone
Policy, Code of Business Ethics, and Employee Expense and
Corporate Card Policy. (Plaintiff Dep. at 93, 95, 98).
Plaintiff’s December 2016 Discussion with Andy
had a corporate credit card, and his monthly reconciliations
were reviewed by Andy Cassidy, Interim General Manager of
C&M. (Cassidy Decl. at 2-3 ¶ 8, 10). In December
2016, Cassidy reviewed Plaintiff’s charges for
October/November 2016 and noticed Plaintiff had used his
company credit card for a hotel room charge in Plainfield,
Indiana, prior to a mid-morning company meeting.
(Id. at 3 ¶ 11). However, the charge was
unnecessary as Plaintiff only lived two hours away, and no
other employee stayed in a hotel to attend the meeting.
(Id.). During an ensuing discussion between
Plaintiff and Cassidy that same month, Plaintiff testified he
mistakenly thought the meeting was at 7:00 a.m. (Plaintiff
Dep. at 168-69). Cassidy did not reprimand Plaintiff, but he
reminded him that his company credit card was only for
appropriate company use. (Cassidy Decl. at 3 ¶ 11).
Plaintiff’s January 20, 2017 Meeting with Toebbe and
December 2016, Plaintiff filed for a divorce, and it quickly
turned ugly. (Plaintiff Dep. at 133). Plaintiff’s wife
had dropped him from their cell phone plan. (Id. at
223). And in January 2017, she emailed Cassidy accusing
Plaintiff of using his company credit card to make personal
purchases and taking cases of beverages from the company.
(Cassidy Decl. at 3-4 ¶ 12; Plaintiff Dep. at 177;
Filing No. 43-2, Ex. B, Pl.’s Wife Jan. 18, 2017
Email). She also said he had multiple fraud cases pending,
had been abusing his company vehicle, and was having an
extramarital affair. (Plaintiff Dep. at 177; Filing No. 43-2,
Ex. B, Pl.’s Wife Jan. 18, 2017 Email). Cassidy
forwarded the email to Bernadette Toebbe, an HR consultant.
(Cassidy Decl. at 3-4 ¶ 12). Because the allegations
were based on fraud and wrongdoing, Toebbe had a phone
conversation with her supervisor, Jerri Garmon, before
reaching out to Cathy Ann Chase, the leader of
Defendant’s employee relations investigation team.
(Filing No. 48-1, Ex. A, Bernadette Toebbe Deposition
(“Toebbe Dep.”) at 48, 52).
January 20, 2017, as part of Defendant’s ongoing
investigation, Plaintiff met with Toebbe and Garmon. (Toebbe
Dep. at 36-38, 41; Filing No. 43-3, Ex. C, Def.’s Jan.
20, 2017 HR Investigation Interview Documentation). During
the meeting, Plaintiff admitted he used his company credit
card by mistake for a hotel stay in Bloomington, Indiana.
(Plaintiff Dep. at 198, 202). Toebbe and Garmon told
Plaintiff that per Defendant’s policy, he was not to
use his company credit card for personal expenses. (Plaintiff
Dep. at 198-99, 201; Toebbe Decl. at 3 ¶ 8; Filing No.
43-2, Ex. A, Employee Expense and Corporate Card Policy at 2
(“Employees should not use the Corporate Credit Card
for . . . personal expenses.”)). Plaintiff understood.
(Plaintiff Dep. at 199 (Q: “So when you left that
meeting in January of 2017 with Ms. Toebbe and [Ms.] Garmon,
you understood that you shouldn’t use your company
credit card for personal expenses; correct?” A:
to substantiate Plaintiff’s wife’s claims, Toebbe
and Garmon considered the investigation closed. (Toebbe Decl.
at 3 ¶ 8; Cassidy Decl. at 4 ¶ 12). Following the
meeting, on January 31, 2017, Toebbe sent an email to Chase
and wrote “everything was legitimate with
[Plaintiff’s] responses.” (Filing No. 43-3, Ex.
E, Toebbe January 31, 2017 Email). Toebbe further noted that
“nothing appears out of line or in violation of CoBE
[Code of Business Ethics] or any other policy.”
addition to the discussion regarding Plaintiff’s credit
card statement, Toebbe asked Plaintiff about a meeting she
understood him to have with Cassidy over his attendance and
availability in Madison. (Filing No. 43-3, Ex. D, Def’s
Jan. 20, 2017 HR Investigation Interview Documentation at ecf
p. 22). Plaintiff responded that Cassidy talked to him about
his attendance because he had two sick days one week and was
on vacation the next week. (Id.). Plaintiff admitted
he had given Cassidy short notice for his absences.
(Id.). He also informed Cassidy he had applied for
intermittent FMLA leave to pursue counseling for his divorce.
(Id.). Cassidy told Plaintiff he needed to provide
sufficient notice of his absences so that Cassidy could have
someone else cover the Madison office. (Id.).
Plaintiff’s FMLA Leave
after being approved for intermittent FMLA, Defendant’s
third party administrator Liberty Mutual approved continuous
FMLA leave from January 26, 2017, until March 8, 2017.
(Plaintiff Dep. at 207-08). While on continuous FMLA leave,
Plaintiff retrieved his work laptop at Defendant’s
premises but was scolded by Toebbe for being on-site.
(Id. at 212, 219). Because of Toebbe scolding him,
Plaintiff testified he ...