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Griffin v. Duke Energy Indiana, LLC

United States District Court, S.D. Indiana, New Albany Division

September 20, 2019

RICK GRIFFIN, Plaintiff,



         Plaintiff 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 Plaintiff’s employment.

         On 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.

         I. Background

         A. Plaintiff’s Employment

         Plaintiff 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.” (Id.).

         During 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).

         B. Plaintiff’s December 2016 Discussion with Andy Cassidy

         Plaintiff 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).

         C. Plaintiff’s January 20, 2017 Meeting with Toebbe and Garmon

         Also in 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).

         On 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: “Yes.”)).

         Unable 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.” (Id.).

         In 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.).

         D. Plaintiff’s FMLA Leave

         Soon 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 ...

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