MEMORANDUM DECISION                                                                FILED
                                                                            Sep 05 2018, 8:22 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                                       CLERK
                                                                             Indiana Supreme Court
precedent or cited before any court except for the                              Court of Appeals
                                                                                  and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEYS FOR APPELLANT                                ATTORNEYS FOR APPELLEE
John C. Theisen                                        Mitchell L. Fraley
Nathaniel O. Hubley                                    Shankman Leone, P.A.
Alex S. Schreiber                                      Tampa Florida
Theisen & Associates, LLC                              Peter A. Meyer
Fort Wayne, Indiana                                    Faegre Baker Daniels, LLP
                                                       Fort Wayne, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Timothy W. Shackleford,                                   September 5, 2018
Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          18A-CT-489
        v.                                                Appeal from the Allen Superior
                                                          Court
D&W Fine Pack, LLC,                                       The Honorable Stanley A.
Appellee-Defendant.                                       Levine, Judge
                                                          Trial Court Cause No.
                                                          02D03-1508-CT-351



Bradford, Judge




Court of Appeals of Indiana | Memorandum Decision 18A-CT-489 | September 5, 2018                     Page 1 of 15
                                          Case Summary
[1]   In February of 2014, Timothy Shackleford injured his shoulder while working

      at D&W Fine Pack, LLC, and was placed on light duty. Shackleford filed a

      worker’s compensation claim and, in June of 2014, underwent surgery.

      Shackleford continued on light duty and eventually participated in a transitional

      return-to-work program (“RTW Program”). In late October of 2014, the doctor

      retained by D&W determined that Shackleford had reached maximum medical

      improvement (“MMI”). When Shackleford obtained a second opinion, that

      doctor recommended that he undergo a second surgery. Shackleford sought

      approval from D&W for the second surgery but never received it and was

      terminated in mid-December of 2014. Shackleford sued D&W, claiming, inter

      alia, that he was discharged in retaliation for the pursuit of his worker’s

      compensation claim. D&W moved for summary judgment on the retaliatory

      discharge claim, and the trial court granted the motion. Shackleford appeals,

      contending that he designated sufficient evidence to generate a genuine issue of

      material fact regarding the question of retaliatory discharge. Because we agree,

      we reverse and remand for trial.



                            Facts and Procedural History
[2]   On October 7, 2013, Shackleford began working at D&W, a manufacturer of

      plastic food containers, as an extrusion operator. On February 22, 2014,

      Shackleford was injured when he was moving a roll of material with the

      assistance of an overhead hoist when the hoist dropped the roll four inches,


      Court of Appeals of Indiana | Memorandum Decision 18A-CT-489 | September 5, 2018   Page 2 of 15
      injuring his shoulder. Shackleford reported the injury the same day, and D&W

      human resources generalist Sylvester Thomas completed a report that was filed

      with the Indiana Worker’s Compensation Board. Shackleford was taken to

      Redi-Med for treatment and later referred to Dr. Gregory Sassmannshausen at

      Fort Wayne Orthopedics. From February 22 to June 19, 2014, Shackleford was

      assigned light duty which included no use of his left arm and involved

      inspection of product from the production line or that had been returned by a

      customer. In approximately May of 2014, according to Shackleford, Mark

      Lebert, one of his supervisors, went from speaking with him multiple times a

      day to completely ignoring him. On June 19, 2014, Dr. Sassmannshausen

      performed shoulder surgery on Shackleford, after which he returned to light

      duty at D&W.


[3]   On July 23, 2014, Thomas met with Shackleford and issued Shackleford three

      write-ups at the same time for attendance, including a verbal warning, a first

      written warning, and a second written warning. Shackleford disputed the write-

      ups, claiming some of the attendance violations had been the result of physical

      therapy appointments that he was required to attend during work hours.

      Thomas’s response was that it was a no-fault policy. As it happens, D&W’s

      attendance editor spreadsheet processed on July 22, 2014, reflects that

      Shackleford was given a verbal warning on January 21, 2014, the first written

      warning on February 10, 2014, and the second written warning on July 17,

      2014. When asked what had prompted him to issue Shackleford three write ups




      Court of Appeals of Indiana | Memorandum Decision 18A-CT-489 | September 5, 2018   Page 3 of 15
      on July 23, 2014, Thomas testified that the incidents had not been brought to

      his attention before that time.


[4]   According to Shackleford, while Shackleford was doing light duty work at

      D&W, reinspection department manager John Lindsey told Shackleford that he

      really “f***** up” and told him at least three times that D&W “will never put

      you back in the extrusion department.” Appellant’s App. Vol. II p. 170. After

      returning to light duty work after his surgery, Shackleford was allegedly told by

      supervisor Dave Cuney that he needed to perform work outside of his

      restrictions. Shackleford told Cuney that the work was outside of his

      restrictions but was told that he if did not do the work he would have to leave.

      Shackleford started doing the work ordered by Cuney and, after lifting four

      boxes, reinjured his shoulder and required medical attention at Redi-Med.


[5]   On September 15, 2014, Thomas had Shackleford sign a transitional return-to-

      work agreement, which involved off-site work during his rehabilitation. The

      off-site work was at ReNew Retail, which is a thrift store like a Goodwill.

      Shackleford started the RTW Program on about September 4, 2014, and the

      ninety-day program was set to expire December 4, 2014. Every Friday while

      Shackleford was working at ReNew, he was required to take his time card to

      D&W so that it would be recorded and so he would be paid by D&W. During

      one of these Friday visits to D&W, extrusion department manager Mark Leiber

      allegedly told Shackleford that “he didn’t think there [was] anything wrong

      with [his] shoulder.” Appellant’s App. Vol. II p. 174.




      Court of Appeals of Indiana | Memorandum Decision 18A-CT-489 | September 5, 2018   Page 4 of 15
[6]   On October 29, 2014, Shackleford was determined to be at MMI by Dr.

      Sassmannshausen. Dr. Sassmannshausen indicated permanent work

      restrictions of no lifting, pushing, or pulling of more than fifteen pounds and no

      overhead lifting of more than five pounds. Shackleford disagreed that he was at

      MMI “[b]ecause [he] was still having like a catch in [his] shoulder.”

      Appellant’s App. Vol. II p. 174. Thomas recalls Shackleford informing him

      that he had found a different doctor and was interested in getting a second

      opinion.


[7]   On November 24, 2014, Shackleford was evaluated by Dr. David Conner at

      Ortho NorthEast for a second opinion, and Shackleford gave Dr. Conner’s

      report to Thomas later that day. Shackleford told Thomas that he could get his

      restrictions lifted if he underwent the surgery recommended by Dr. Conner.

      Thomas discussed the report with Shackleford and recalled that he also

      discussed it with human resources manager Kelli Tesic. Thomas recalled

      telling Shackleford to follow up with Zurich North American, D&W’s worker’s

      compensation insurance company, about Dr. Conner’s findings.


[8]   Sometime between November 24, 2014 and December 16, 2014, Shackleford

      recalls Thomas telling him that he was “creating a hardship for the company.”

      Appellant’s App. Vol. II p. 175. Shackleford also felt as though Thomas

      “didn’t want to listen about a second opinion.” Appellant’s App. Vol. II p. 175.

      On December 15, 2014, Shackleford met with Thomas. Shackleford asked

      Thomas whether D&W had made decisions about extending his transitional

      work period at ReNew Retail or about his second surgery and inquired about


      Court of Appeals of Indiana | Memorandum Decision 18A-CT-489 | September 5, 2018   Page 5 of 15
       taking FMLA (“the Family and Medical Leave Act”) leave. Thomas recalls

       informing Shackleford that he had not heard anything from D&W management

       about extending the transitional work period or about how D&W wanted to

       proceed regarding the second surgery. After meeting with Shackleford on

       December 15, 2014, Thomas met with Tesic regarding Shackleford’s questions.

       Shackleford designated evidence that during the meeting between Thomas and

       Tesic, the decision was collectively made to recommend to the human

       resources director that D&W terminate Shackleford’s employment.


[9]    On December 16, 2014, Shackleford was notified that his employment was

       terminated on the grounds that he was at MMI, his work program had expired,

       and D&W could not accommodate his restrictions. On December 19, 2014,

       D&W’s Human Resources Department sent Shackleford a holiday card, which

       was allegedly opened by Shackleford’s attorney. The holiday card contains

       signatures of several employees as well as the handwritten words “Moron” and

       “Dumby[.]” Appellant’s App. Vol. II p. 37. At is happened, Shackleford

       underwent a second surgery on February 11, 2015. By April 30, 2015,

       Shackleford’s shoulder was feeling “great[,]” and he was released with no

       restrictions. Appellant’s App. Vol. II p. 183.


[10]   On August 27, 2015, Shackleford filed a complaint against D&W, alleging

       retaliatory discharge and interference with an FMLA claim, in which he alleged

       that he had been terminated because he had been injured and had sought to

       exercise his rights to worker’s compensation benefits. D&W removed the case




       Court of Appeals of Indiana | Memorandum Decision 18A-CT-489 | September 5, 2018   Page 6 of 15
       to federal court for resolution of the FMLA claim, and, on January 25, 2017,

       the district court entered summary judgment in favor of D&W on that claim.


[11]   The case returned to state court, and, on July 11, 2017, D&W moved for

       summary judgment on the retaliatory discharge claim. On August 10, 2017,

       Shackleford filed a brief and designated evidence in opposition to D&W’s

       summary judgment motion. On October 17, 2017, the trial court held a hearing

       on D&W’s summary judgment motion and, on January 29, 2018, granted it.



                                  Discussion and Decision
                                              Standard of Review

[12]   Shackleford contends that the trial court erred when it entered summary

       judgment in favor of D&W. When reviewing the grant or denial of a summary

       judgment motion, we apply the same standard as the trial court. Merchs. Nat’l

       Bank v. Simrell’s Sports Bar & Grill, Inc., 741 N.E.2d 383, 386 (Ind. Ct. App.

       2000). Summary judgment is appropriate only where the evidence shows there

       is no genuine issue of material fact and the moving party is entitled to a

       judgment as a matter of law. Id.; Ind. Trial Rule 56(C). To prevail on a motion

       for summary judgment, a party must demonstrate that the undisputed material

       facts negate at least one element of the other party’s claim. Merchs. Nat’l Bank,

       741 N.E.2d at 386. Once the moving party has met this burden with a prima

       facie showing, the burden shifts to the nonmoving party to establish that a

       genuine issue does in fact exist. Id. The party appealing the summary

       judgment bears the burden of persuading us that the trial court erred. Id. “In

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-489 | September 5, 2018   Page 7 of 15
       determining whether there is a genuine issue of material fact precluding

       summary judgment, all doubts must be resolved against the moving party and

       the facts set forth by the party opposing the motion must be accepted as true.”

       Lawlis v. Kightlinger & Gray, 562 N.E.2d 435, 438–39 (Ind. Ct. App. 1990), trans.

       denied.


[13]   Shackleford contends that the trial court erred in finding that there was no

       genuine issue as to whether D&W terminated him in retaliation for pursuing his

       worker’s compensation claim.


                 “In general, an employment contract of indefinite duration is
                 presumptively terminable at the will of either party.” Stillson v.
                 St. Joseph Cnty. Health Dep’t, 22 N.E.3d 671, 679 (Ind. Ct. App.
                 2014) (citing Pepkowski v. Life of Ind. Ins. Co., 535 N.E.2d 1164,
                 1168 (Ind. 1989)), trans denied (2015). However, it is well settled
                 in Indiana that an action for retaliatory discharge exists when an
                 employee is discharged for exercising a statutorily conferred
                 right, such as filing a worker’s compensation claim. Purdy v.
                 Wright Tree Serv., Inc., 835 N.E.2d 209, 212 (Ind. Ct. App. 2005),
                 trans. denied (2006). In Frampton v. Central Indiana Gas Co., 260
                 Ind. 249, 251–53, 297 N.E.2d 425, 427–28 (1973), our supreme
                 court held that an employee-at-will who was discharged for filing
                 a worker’s compensation claim could file an action for retaliatory
                 discharge against her employer because the Worker’s
                 Compensation Act was designed for the benefit of employees,
                 and as such, its humane purpose would be undermined if
                 employees were subject to reprisal without remedy solely for
                 exercising that statutory right.
                 This Court has outlined and consistently followed a three-step
                 approach to a retaliatory discharge Frampton claim under Indiana
                 law. First, the employee must prove, by a preponderance of the
                 evidence, a prima facie case of discrimination. Powdertech, Inc. v.


       Court of Appeals of Indiana | Memorandum Decision 18A-CT-489 | September 5, 2018   Page 8 of 15
               Joganic, 776 N.E.2d 1251, 1262 (Ind. Ct. App. 2002).
               Specifically, the employee must present evidence that directly or
               indirectly implies the necessary inference of causation between
               the filing of a worker’s compensation claim and the termination.
               Id. Second, the burden shifts to the employer to articulate a
               legitimate nondiscriminatory reason for the discharge. Id. If the
               employer carries its burden, the employee then has the
               opportunity to prove that the reason cited by the employer is a
               pretext. Id. He may establish pretext by showing that the
               reasons are (1) factually baseless; (2) not the actual motivation for
               his discharge; or (3) insufficient to motivate the discharge. Id.
               The question of whether a retaliatory motive exists for
               discharging an employee is a question for the trier of fact. Id. at
               1261–62.
       Best Formed Plastics, LLC v. Shoun, 51 N.E.3d 345, 351 (Ind. Ct. App. 2016),

       trans. denied.


[14]   “Where causation or retaliation is at issue, summary judgment is only

       appropriate when the evidence is such that no reasonable trier of fact could

       conclude that a discharge was caused by a prohibited retaliation.” Markley

       Enters. v. Grover, 716 N.E.2d 559, 565 (Ind. Ct. App. 1999). “But to survive a

       motion for summary judgment in a Frampton case, an employee must show

       more than a filing of a worker’s compensation claim and the discharge itself.”

       Id. “The evidence must directly or indirectly support the necessary inference of

       causation between the filing of a worker’s compensation claim and the

       termination.” Id. “Examples of indirect proof of retaliation include: (1)

       proximity in time between the two acts, and (2) an employer’s proffered reason

       for termination which is patently inconsistent with the evidence before the

       court.” Id.


       Court of Appeals of Indiana | Memorandum Decision 18A-CT-489 | September 5, 2018   Page 9 of 15
               In cases of wrongful termination based upon allegations of
               discrimination, pretext can be proven by showing that the
               employer’s stated reason has no basis in fact; that although based
               on fact, the stated reason was not the actual reason for discharge;
               or that the stated reason was insufficient to warrant the
               discharge.
       Dale v. J.G. Bowers, Inc., 709 N.E.2d 366, 369 (Ind. Ct. App. 1999).


[15]   D&W argues that the amount of time that elapsed between Shackleford’s initial

       filing and his discharge—approximately ten months—defeats his claim as a

       matter of law. While Shackleford concedes that the gap between the injury and

       his discharge, standing alone, tends to negate any allegation of retaliatory

       intent, he contends that additional designated evidence nonetheless tends to

       establish that it existed. As we have recognized, the mere passage of time is not

       enough to defeat a Frampton claim when other designated evidence casts doubt

       on the employer’s motives. See Markley Enters., 716 N.E.2d at 565 (“[W]e

       disagree with the Company that the six month time period which elapsed

       between Grover’s filing of his worker’s compensation claim and his termination

       is fatal to his claim for retaliatory discharge. Although a closer temporal

       connection between the two events often supports an inference of retaliatory

       intent, a six month lapse has also sufficed when the other evidence before the court

       calls into doubt the employer’s reasons for discharge.”) (emphasis added). Under the

       circumstances of this case, we agree with Shackleford that the designated

       evidence has generated sufficient doubt about D&W’s motives to survive a

       summary judgment motion.




       Court of Appeals of Indiana | Memorandum Decision 18A-CT-489 | September 5, 2018   Page 10 of 15
[16]   Shackleford has designated evidence tending to show that D&W’s attitude

       toward him changed around the time of his June of 2014 surgery, deteriorated

       as time passed, and that he was terminated soon after requesting another

       surgery and being told that he was creating a “hardship” for the company.

       Shackleford was injured in February of 2014 and placed on light work duty as a

       result. Shackleford designated evidence that other D&W employees began to

       treat him differently about the time of his first surgery in June of 2014. This

       included evidence that (1) a supervisor went from speaking with him multiple

       times a day to ignoring him altogether; (2) he was disciplined for previous

       absenteeism shortly after his surgery, receiving three write-ups; (3) he was told

       by the manager of his light-duty department that he had “f***** up” and that he

       would never be put back into the extrusion department; and (4) a supervisor

       pressured him into work outside of his restrictions, aggravating his injury.

       Shackleford designated evidence that a few months later, the extrusion

       department manager told Shackleford that he did not think that there was

       anything wrong with his arm. This evidence is sufficient to raise inferences that

       there was general skepticism at D&W regarding the extent of Shackleford’s

       injury and that at least some members of management and supervisory staff

       were attempting to cause him to resign.


[17]   Shackleford also designated evidence tending to show that the situation

       worsened when he sought additional treatment for his shoulder. After Dr.

       Sassmannshausen determined Shackleford to be at MMI in late October,

       Shackleford designated evidence which tends to show increasing resistance to



       Court of Appeals of Indiana | Memorandum Decision 18A-CT-489 | September 5, 2018   Page 11 of 15
       his attempts to seek a second opinion and/or obtain additional treatment, with

       discharge coming soon thereafter. After Shackleford obtained a second

       opinion, which included a recommendation for further surgery, Shackleford

       designated evidence that Thomas told him that he was creating a hardship for

       the company. D&W never did directly respond to Shackleford’s requests for

       the approval of additional treatment for his shoulder, and within a few weeks of

       Thomas’s alleged statement, Shackleford had been terminated. We conclude

       that the designated evidence is sufficient to generate a genuine issue of material

       fact as to whether D&W discharged Shackleford in retaliation for pursuing his

       worker’s compensation rights.


[18]   We find D&W’s counter-arguments to be unpersuasive. First, D&W relies on

       Cummins v. Kroger Co., Cause No. 54A01-0603-CV-113 (Ind. Ct. App. March

       30, 2007), trans. denied, for the proposition that the mere passage of ten months

       should be sufficient to defeat Shackleford’s Frampton claim. Cummins, of

       course, as an unpublished memorandum decision, has no precedential value.

       Moreover, we are not entirely persuaded by the Cummins court’s conclusion

       that a Frampton claim can only be based on direct retaliation for filing a

       worker’s compensation claim—but not for pursuing one as time passes.

       Employees unquestionably have the statutory right to pursue continuing

       treatment for workplace injuries, and Frampton made it clear that “when an

       employee is discharged solely for exercising a statutorily conferred right an

       exception to the general rule [of employment-at-will] must be recognized.” 297

       N.E.2d at 428.


       Court of Appeals of Indiana | Memorandum Decision 18A-CT-489 | September 5, 2018   Page 12 of 15
[19]   D&W also points to the fact that it discharged Shackleford after Dr.

       Sassmannshausen determined him to be at MMI, seeming to suggest that this

       conclusively establishes that D&W legitimately discharged Shackleford. While

       it may be true that Dr. Sassmannshausen’s determination makes it more likely

       that D&W discharged Shackleford for a legitimate reason, it is hardly

       conclusive, especially in light of the fact that D&W also had Dr. Conner’s

       opinion, which contradicted the MMI determination. The significance of Dr.

       Sassmannshausen’s MMI determination is a question best left for a jury.

       Moreover, to the extent that the MMI determination tends to support the

       conclusion that D&W had a legitimate reason for discharge, Shackleford does

       not dispute that D&W has articulated a legitimate reason for his discharge.

       Shackleford contends, however, that other designated evidence could support a

       finding that the articulated reason was a pretext, a contention with which we

       agree.


[20]   D&W also seems to contend that any comments directed at Shackleford that

       might seem to indicate hostility or skepticism were not made by decision-

       makers and are therefore irrelevant as a matter of law. “Stray remarks may be

       evidence of intentional discrimination if they are sufficiently connected to the

       employment decision.” Purdy, 835 N.E.2d at 218 (citing Dandy v. United Parcel

       Service, Inc., 388 F.3d 263, 272 (7th Cir. 2004)). “In other words, the remarks

       must be made by the decisionmaker or those who influence the decisionmaker

       and must be made close in time to the adverse employment decision.” Id. At

       the very least, Shackleford designated evidence that Thomas told him that he



       Court of Appeals of Indiana | Memorandum Decision 18A-CT-489 | September 5, 2018   Page 13 of 15
       had created a “hardship” for D&W and that Thomas was, within a few weeks

       of that alleged comment, directly involved in the decision to terminate him.

       Moreover, given that Shackleford alleges comments and/or actions by two

       department managers and two supervisors, we cannot say that no reasonable

       person could infer that these persons were connected to the decision-making

       process in some way.


[21]   Finally, D&W identifies several other pieces of designated evidence that it

       claims are suspect, including evidence of the remarks allegedly made by other

       employees, orders to work outside of restrictions, the write-ups by Thomas for

       attendance violations, and the holiday card. Without going into detail, D&W’s

       arguments are nothing more than an invitation for us to evaluate the truth

       and/or significance of these pieces of designated evidence, one that we decline.

       As mentioned, we must assume at this stage of the proceedings that all of the

       facts designated by Shackleford are true and resolve all doubts in his favor. See

       Lawlis, 562 N.E.2d at 438–39. As for the significance of various pieces of

       evidence, such questions are best left for a jury.


[22]   In summary, we conclude that Shackleford has established that a genuine issue

       of material fact exists as to whether D&W discharged him in retaliation for

       pursuing his worker’s compensation claim. We therefore reverse the trial

       court’s entry of summary judgment in favor of D&W and remand for trial.


[23]   We reverse the judgment of the trial court and remand with instructions.




       Court of Appeals of Indiana | Memorandum Decision 18A-CT-489 | September 5, 2018   Page 14 of 15
Bailey, J., and Mathias, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-CT-489 | September 5, 2018   Page 15 of 15
