MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                   Mar 08 2016, 6:18 am

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Patrick F. O’Leary                                       Lyle R. Hardman
Goshen, Indiana                                          Patricia A. Mastagh
                                                         Hunt Suedhoff Kalamaros LLP
                                                         South Bend, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jan Van Daele,                                           March 8, 2016
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         20A03-1509-PL-1539
        v.                                               Appeal from the Elkhart Superior
                                                         Court
Concord Community School                                 The Honorable Gretchen S. Lund,
Corporation,                                             Judge
Appellee-Defendant.                                      Trial Court Cause No.
                                                         20D04-1307-PL-172



Bradford, Judge.



                                    Case Summary


Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016         Page 1 of 26
[1]   On April 19, 2011, Appellant-Plaintiff Jan Van Daele filed a worker’s

      compensation claim after injuring her shoulder during the course of her

      employment as a bus driver for Appellee-Defendant Concord Community

      School Corporation (“Concord”). On November 21, 2011, Van Daele’s doctors

      released her to return to work, with certain limitations. Concord did not

      require Van Daele to return to work at this time. Instead, Concord permitted

      Van Daele to remain off of work and to continue to receive worker’s

      compensation benefits while receiving additional treatment for her work-related

      injury.


[2]   On March 12, 2012, Van Daele’s doctors determined that Van Daele’s

      condition had improved to the point that she should return to work

      immediately, again with certain limitations. Three days later, on March 15,

      2012, Concord offered Van Daele a temporary transitional position which took

      into account the limitations set by Van Daele’s doctors. At this time, Concord

      notified Van Daele that because her doctors had indicated that her condition

      had improved to the point where she should return to work, her worker’s

      compensation benefits would cease if she did not accept the offered temporary

      transitional position. Van Daele ultimately decided to turn down the

      temporary transitional position.


[3]   After Van Daele turned down the temporary transitional position, she was

      notified by Concord on April 18, 2012, that in light of her refusal to return to

      work, she could either resign from her employment or Concord would

      terminate her employment. Van Daele did not resign. On May 3, 2012,

      Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016   Page 2 of 26
      Concord sent Van Daele a letter notifying her that her employment would be

      terminated. The termination of Van Daele’s employment was subsequently

      approved by the school board on May 7, 2012.


[4]   On July 1, 2013, Van Daele filed the underlying lawsuit, claiming that Concord

      wrongfully terminated her employment in retaliation for her act of filing a

      worker’s compensation claim. On July 10, 2015, the trial court granted

      summary judgment in favor of Concord. Van Daele now challenges the trial

      court’s award of summary judgment in favor of Concord. In doing so, Van

      Daele claims that issues of material fact remain as to whether Concord’s stated

      reason for the termination of her employment, i.e., that she had refused to

      return to work after having been released by her doctors to do so, was pretext.

      Concluding that all reasonable inferences from the designated evidence indicate

      that Van Daele’s employment was not terminated solely because she filed a

      worker’s compensation claim, we affirm.



                            Facts and Procedural History
[5]   At all times relevant to this appeal, Van Daele was employed as a bus driver for

      Concord. On April 1, 2011, Van Daele injured her shoulder while operating

      the brake on her bus. She reported the injury to Concord and filed a worker’s

      compensation claim on April 19, 2011. Van Daele then began receiving

      workers compensation benefits, including medical treatment for her shoulder.

      Van Daele underwent surgery to repair damage to her right shoulder on

      November 9, 2011.

      Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016   Page 3 of 26
[6]   On November 21, 2011, Van Daele’s doctors released her to return to work,

      with certain limitations. Concord did not require Van Daele to return to work

      at this time. Instead, Concord permitted Van Daele to remain off of work and

      to continue to receive worker’s compensation benefits while receiving

      additional treatment for her work-related injury.


[7]   On March 12, 2012, Van Daele’s doctors again determined that Van Daele’s

      condition had improved to the point that she should return to work

      immediately, again with certain limitations. Three days later, on March 15,

      2012, Van Daele met with her direct supervisor, Rich Matteson, who offered

      Van Daele a temporary transitional position as a door receptionist which took

      into account the limitations set by Van Daele’s doctors. At this time, Concord

      notified Van Daele that because her doctors had indicated that she should

      return to work, her worker’s compensation benefits would cease if she did not

      accept the offered temporary transitional position. Matteson sent Van Daele a

      follow-up letter on March 16, 2012, in which he again set forth the specific

      duties associated with the offered temporary transitional position and warned

      Van Daele that according to Concord’s insurance provider, her worker’s

      compensation benefits would cease if she did not accept the temporary

      transitional position and return to work. Van Daele ultimately decided to turn

      down the temporary transitional position. As a result, her worker’s

      compensation benefits were terminated on March 29, 2012.


[8]   Concord Assistant Superintendent Tim Tahara notified Van Daele on April 18,

      2012, that in light of her refusal to return to work after having been released by

      Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016   Page 4 of 26
       her doctors to do so, she could either resign from her employment or Concord

       would terminate her employment. Van Daele did not resign, and on May 3,

       2012, Tahara, on behalf of Concord, sent Van Daele a letter informing her that

       in light of her continuing inability to perform her essential job functions coupled

       with her refusal to accept the temporary transitional position and return to work

       after having be released to do so by her doctors, her employment would be

       terminated. Van Daele’s employment was subsequently terminated during a

       May 7, 2012 school board meeting. Van Daele was officially notified of the

       termination of her employment in a letter sent by Concord Superintendent

       Wayne Stubbs on May 10, 2012.


[9]    On July 1, 2013, Van Daele filed the underlying lawsuit, claiming that Concord

       wrongfully terminated her employment in retaliation for her act of filing a

       worker’s compensation claim. On December 24, 2014, Concord filed a motion

       for summary judgment. The trial court subsequently granted a request for an

       extension of time to respond to Concord’s motion for summary judgment. On

       February 4, 2015, Van Daele filed a motion to strike certain evidence

       designated by Concord in support of its motion for summary judgment.

       Specifically, Van Daele sought to strike Concord’s answers to certain

       interrogatories. The trial court denied this motion on March 24, 2015, and

       ordered Van Daele to respond to Concord’s motion for summary judgment no

       later than April 27, 2015.


[10]   Van Daele filed a motion to reconsider its motion to strike on April 2, 2015.

       The trial court held a hearing on this motion on April 16, 2015, at which time

       Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016   Page 5 of 26
       counsel for Van Daele admitted that he had intentionally not informed counsel

       for Concord of the alleged deficiencies in the challenged answers as a matter of

       trial strategy. The trial court denied Van Daele’s motion to reconsider, ruled

       that Concord had timely and properly supplemented its responses to the

       challenged interrogatories, and set a May 28, 2015 hearing on Concord’s

       motion for summary judgment. Van Daele responded to Concord’s motion for

       summary judgment on April 27, 2015. On May 11, 2015, Concord filed its

       reply to Van Daele’s response to its motion for summary judgment.


[11]   Minutes before the May 28, 2015 hearing on Concord’s motion for summary

       judgment, apparently without prior notice to Concord, Van Daele filed a

       second motion to strike portions of Concord’s designated evidence. The trial

       court heard arguments from the parties regarding Concord’s motion for

       summary judgment and gave Concord until June 15, 2015 to respond to Van

       Daele’s second motion to strike. Concord filed its response to this motion on

       June 3, 2015.


[12]   On July 10, 2015, the trial court issued an order denying Van Daele’s second

       motion to strike and granting summary judgment in favor of Concord. Van

       Daele then filed a motion to correct error, which was subsequently denied by

       the trial court. This appeal follows.



                                  Discussion and Decision


       Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016   Page 6 of 26
[13]   Van Daele contends that the trial court erred in granting summary judgment in

       favor of Concord. Our standard of review for a trial court’s grant or denial of a

       motion for summary judgment is well-settled. Purdy v. Wright Tree Serv., Inc.,

       835 N.E.2d 209, 212 (Ind. Ct. App. 2005), trans. denied. The purpose of

       summary judgment is to end litigation where no factual dispute exists and

       which may be determined as a matter of law. Powdertech, Inc. v. Joganic, 776

       N.E.2d 1251, 1255 (Ind. Ct. App. 2002). Summary judgment is appropriate

       only where there is no genuine issue of material fact and the moving party is

       entitled to judgment as a matter of law. Purdy, 835 N.E.2d at 212. The party

       moving for summary judgment has the burden of showing that it is entitled to

       summary judgment. Powdertech, 776 N.E.2d at 1256. Appellate review of a

       summary judgment motion is limited to those materials designated to the trial

       court. Purdy, 835 N.E.2d at 212. We do not reweigh the designated evidence;

       rather, all facts and reasonable inferences drawn therefrom are construed in

       favor of the nonmovant. Id.


[14]   The party appealing the denial of a motion for summary judgment has the

       burden of persuading the court on appeal that the trial court’s ruling was

       improper. Powdertech, 776 N.E.2d at 1256. A grant of summary judgment may

       be affirmed upon any theory supported by the designated evidence. Purdy, 835

       N.E.2d at 212. Further, although rulings on motions to correct error are

       usually reviewable under an abuse of discretion standard, we review a case de

       novo when the issue on appeal is purely a question of law. Eagle Aircraft, Inc. v.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016   Page 7 of 26
       Trojnar, 983 N.E.2d 648, 657 (Ind. Ct. App. 2013) (citing Ind. Bureau of Motor

       Vehicles v. Charles, 919 N.E.2d 114, 116 (Ind. Ct. App. 2009)).


            A. Claims of Retaliation Following Termination of
                              Employment
[15]           In general, an employment contract of indefinite duration is
               presumptively terminable at the will of either party. Pepkowski v.
               Life of Ind. Ins. Co., 535 N.E.2d 1164, 1168 (Ind. 1989). However,
               in Frampton v. Central Ind. Gas Co., 260 Ind. 249, 297 N.E.2d 425
               (1973), our supreme court created an exception to the
               employment-at-will doctrine when an employee was discharged
               for filing a worker’s compensation claim. The Frampton court
               stated that when an employee is discharged solely for exercising a
               statutorily conferred right, an exception to the general rule is
               recognized, and a cause of action exists in the employee as a
               result of the retaliatory discharge. Id. at 253, 297 N.E.2d at 428.


       Powdertech, 776 N.E.2d at 1261.


[16]   “[A] plaintiff bringing a retaliation claim must first prove, by a preponderance

       of the evidence, a prima facie case of discrimination.” Id. at 1262 (citing Dale v.

       J.G. Bowers, Inc., 709 N.E.2d 366, 370 n. 3 (Ind. Ct. App. 1999)). “Then, the

       burden shifts to the employer to articulate a legitimate, nondiscriminatory

       reason for discharge.” Id. (citing Dale, 709 N.E.2d at 370 n. 3). “If the

       employer carries that burden, then the employee has the opportunity to prove,

       again by a preponderance of the evidence, that the reason offered by the

       employer is a pretext.” Id. (citing Dale, 709 N.E.2d at 370 n. 3; Fuller v. Allison

       Gas Turbine Div., 670 N.E.2d 64, 68 (Ind. Ct. App. 1996)). “In order to be

       successful on a claim for retaliatory discharge, a plaintiff must demonstrate that
       Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016   Page 8 of 26
       [her] discharge was solely in retaliation for the exercise of” the statutory right to

       file a worker’s compensation claim. Purdy, 835 N.E.2d at 212 (emphasis

       added). “We have previously explained that the word ‘solely’ means only that

       any and all reasons for the discharge must be unlawful to sustain the claim for

       retaliatory discharge.” Whirlpool Corp. v. Vanderburgh Cty.-City of Evansville

       Human Relations Comm’n, 875 N.E.2d 751, 758 (Ind. Ct. App. 2007).


[17]   The question of retaliatory motive for a discharge is generally a question for the

       trier of fact. Powdertech, 776 N.E.2d at 1261-62 (citing Dale, 709 N.E.2d at 369).


               “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 Enter., Inc. v. Grover, 716 N.E.2d
               559, 565 (Ind. Ct. App. 1999) (quoting Hamann v. Gates Chevrolet
               Inc., 910 F.2d 1417, 1420 (7th Cir. 1990), reh’g denied). 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. Grover, 716 N.E.2d
               at 565. Accordingly, 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, such as proximity in time or evidence that the
               employer’s asserted lawful reason for discharge is a pretext. Dale,
               709 N.E.2d at 369.


       Id. at 1262. “An employee can prove pretext by showing that: (1) the

       employer’s stated reason has no basis in fact; (2) although based on fact, the

       stated reason[] was not the actual reason for discharge; or (3) the stated reason

       was insufficient to warrant the discharge.” Whirlpool Corp., 875 N.E.2d at 758.


       Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016   Page 9 of 26
[18]   In this case, Van Daele alleged that she had been retaliatorily discharged.

       Concord rejected this allegation and responded that it had discharged Van

       Daele because she refused to return to work after having been released by her

       doctors to do so. Again, in order to survive Concord’s summary judgment

       motion, Van Daele had to present evidence from which a reasonable trier-of-

       fact could find that Concord’s stated reason for the termination of her

       employment was pretext. Powdertech, 776 N.E.2d at 1262. The trial court

       determined that Van Daele failed to do so.


[19]   In challenging the trial court’s award of summary judgment in favor of

       Concord, Van Daele argues that she designated evidence from which one could

       reasonably infer that Concord’s stated reason for the termination of her

       employment was pretext and that her employment was instead terminated in

       retaliation for her filing of a worker’s compensation claim. Van Daele points to

       certain pieces of designated evidence in support of this argument. The

       designated evidence cited to by Van Daele generally falls into the following five

       categories: (1) evidence demonstrating that Tahara displayed retaliatory intent;

       (2) evidence demonstrating that Tahara subsequently altered a letter sent to Van

       Daele regarding her termination; (3) evidence that Concord failed to timely

       respond to discovery; (4) evidence that Concord failed to warn Van Daele that

       rejection of the temporary transitional position would result in the termination

       of her employment; and (5) evidence relating to the allegedly suspicious timing

       of the termination.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016   Page 10 of 26
                                  1. Alleged Retaliatory Intent
[20]   Van Daele claims that she designated evidence which demonstrated that Tahara

       acted with retaliatory intent when he recommended the termination of her

       employment to the school board. Specifically, Van Daele points to her affidavit

       in which she averred that when she and her husband met with Tahara on April

       18, 2012, Tahara “came into the room and proceeded to kick a chair. His tone

       and demeanor were angry. He said rudely: ‘sit down. This has gone on long

       enough. You’re not a good fit anymore. You’ve been out 22 weeks.’”

       Appellant’s App. p. 405. Van Daele also points to the affidavit of her husband,

       Alan Van Daele. With respect to the April 18, 2012 meeting, Alan averred as

       follows:


               [Tahara’s] demeanor was impersonal and unfriendly. Without
               any greeting or introduction, he immediately ordered us in a
               stern voice to be seated. As he did so, he planted his foot on one
               of the chairs and kicked it toward a wall. The chair struck the
               wall.

               5).   The meeting only lasted about five minutes. I recall Mr.
               Tahara telling Jan that she “wasn’t a good fit,” that “this has
               gone on long enough,” that she had been off work for over 22
               weeks, and that she had only two options – either “resign” from
               her bus driving job or be “terminated.”


       Appellant’s App. p. 413. Van Daele asserts that the above-quoted statements

       are direct evidence of animus for Van Daele’s act of filing a worker’s

       compensation claim. We disagree.



       Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016   Page 11 of 26
[21]   While Tahara may have addressed the Van Daeles in an angry or unfriendly

       tone, neither Van Daele or Alan averred that Tahara made any reference to the

       fact that Van Daele had filed a worker’s compensation claim. Importantly, the

       Van Daeles both averred that Tahara instead referred to the length of time that

       Van Daele had been off of work. Also importantly, the April 18, 2012 meeting

       occurred over a month after Van Daele’s doctors had indicated that Van Daele

       should return to work immediately and nearly a month after Van Daele had

       refused to accept the temporary transitional position offered by Concord. These

       facts are such that a reasonable trier-of-fact could only infer that any animus on

       behalf of Tahara was due to the fact that Van Daele had refused to return to

       work (1) after having been released by her doctors to do so, and (2) after having

       been offered a temporary position which complied with the restrictions put in

       place by her doctors. The Van Daeles’ averments were not sufficient to allow a

       reasonable trier-of-fact to infer that said animus stemmed solely from the fact

       that Van Daele filed a worker’s compensation claim.


[22]   Further, to the extent that Van Daele relies on this court’s prior opinions in

       Markley Enterprises and Tony v. Elkhart County, 918 N.E.2d 363 (Ind. Ct. App.

       2009), we believe that these case are distinguishable from the facts presented

       here. In Markley Enterprises, the company indicated that Grover’s employment

       was terminated because Harold Markley, the company’s president, learned that

       Grover had made derogatory comments about the company to a co-worker and

       believed that Grover’s comments would affect the company’s ability to both

       attract new employees and retain existing employees. 716 N.E.2d at 565. The


       Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016   Page 12 of 26
       parties designated evidence which demonstrated that the company had

       previously disciplined Grover for allegedly attempting to file a false claim for

       worker’s compensation benefits. The parties also designated an internal

       company memorandum which disclosed an extremely hostile attitude against

       Grover for having attempted to file the previous claim and stated that Grover’s

       employment would be terminated immediately in the event of “any repeat

       violations.” Id. at 566. Noting that the question of retaliatory motive is

       generally a question for the trier-of-fact, we concluded that the company was

       not entitled to summary judgment because the designated evidence was

       sufficient to raise a genuine issue of material fact as to whether the company’s

       true motive for terminating Grover’s employment was the fact that he had

       made derogatory comments about the company or his filing of the worker’s

       compensation claim. Id.


[23]   In Tony, the evidence demonstrated that Tony’s difficulties at work only began

       after he sought worker’s compensation benefits for an injury which he suffered

       while “on-the-job.” 918 N.E.2d at 371. After seeking worker’s compensation

       benefits, Tony was allegedly repeatedly labeled a “faker” and was assigned job

       duties that violated medical restrictions required by his injuries. Id. There was

       no designated evidence suggesting that Tony’s job performance was

       unsatisfactory such that Elkhart County might have wanted to discharge him

       for any valid reason, as opposed to penalizing him for seeking protections and

       benefits offered under the worker’s compensation system. Id. Upon review, we




       Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016   Page 13 of 26
       concluded that the parties designated evidence which “was at least sufficient to

       survive summary judgment.” Id.


[24]   Unlike in Markley Enterprises and Tony, there is no designated evidence

       indicating that Concord held a hostile attitude against Van Daele, exposed Van

       Daele to repeated harassment, or assigned Van Daele job duties that violated

       the medical restrictions put in place by her doctors. Instead, the designated

       evidence demonstrates that Concord attempted to accommodate Van Daele

       while she recovered from her work-related injury. Specifically, the designated

       evidence indicates that Concord allowed her to remain off of work and continue

       treatment after she was first released to return to work with restrictions and

       offered her a temporary transitional position which accommodated her work

       restrictions after she was released, for the second time, to return to work. The

       fact that Tahara allegedly used an angry or unfriendly tone and arguably acted

       in an unprofessional manner during the April 18, 2012 meeting, which again

       took place nearly a month after Van Daele refused to return to work despite

       being cleared to do so, did not expose Van Daele to an environment similar to

       the environments discussed in Markley Enterprises and Tony.


                                 2. Alleged Alteration of Letter
[25]   Van Daele also claims that an alleged alteration of certain designated evidence

       shows retaliatory intent by Concord. Specifically, Van Daele points to a letter

       sent by Tahara, on behalf of Concord, to Van Daele on May 3, 2012, indicating

       that her employment would be terminated because she remained unable to

       perform the essential functions of her job after more than twenty-two weeks of
       Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016   Page 14 of 26
       leave coupled with the fact that she refused to accept the temporary transitional

       position offered by Concord after her doctor indicated that she was to return to

       work immediately with transitional duties. This letter was printed on

       Concord’s letterhead and included the words “Assistant Superintendent” under

       Tahara’s name on the signature line. Appellant’s App. p. 441. The designated

       evidence also included a second copy of this letter which was provided to the

       Indiana Department of Workforce Development in August of 2012, in

       connection with Van Daele’s subsequent request for unemployment benefits.

       The second copy of the letter was not printed on Concord letterhead, was dated

       May 7, 2012, and did not include the words “Assistant Superintendent” under

       Tahara’s name. Appellant’s App. p. 253. The letters were identical in all other

       respects.


[26]   Van Daele asserts that the designated letters prove that Tahara deliberately

       altered the date of the letter from May 3, 2012 to May 7, 2012, in an attempt to

       conceal the fact that Concord had decided to terminate Van Daele’s

       employment prior to the May 7, 2012 school board meeting. Van Daele,

       however, designated no evidence that the change of the date was deliberate. To

       the contrary, the designated evidence demonstrates that Tahara denied that the

       date change was deliberate. The designated evidence further demonstrates that

       Tahara explained that the computer that he used to prepare the letter had an

       “auto date” feature and that he surmised that the date change may have

       occurred when he retrieved a copy of the letter to take with him to the May 7,

       2012 school board meeting. Appellant’s App. p. 306. The trial court twice


       Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016   Page 15 of 26
       found that the “‘inconsistency’” in the letters does not lead to a reasonable

       inference of retaliatory motive as the date on the letter was legally “irrelevant.”

       Appellant’s App. p. 14. We agree with the trial court in this regard.


[27]   The undisputed designated evidence demonstrates that Van Daele was

       informed on April 18, 2012, that her employment would be terminated if she

       did not resign. On May 3, 2012, Tahara, on behalf of Concord, sent Van Daele

       the letter informing her that because she had not resigned, her employment

       would be terminated. As such, regardless of whether the letter was dated May

       3 or May 7, 2012, the undisputed evidence demonstrates that in light of Van

       Daele’s continued inability to perform her essential job functions coupled with

       her refusal to accept the temporary transitional position, Concord had decided

       to terminate Van Daele’s employment on or before May 3, 2012. Both

       designated copies of the letter are consistent and reflect this decision.

       Therefore, we conclude that the designated evidence relating to this claim,

       which again consisted only of the two copies of the letter, is insufficient to allow

       a reasonable trier-of-fact to infer that Concord acted with retaliatory intent.1


                3. Alleged Failure to Timely Respond to Discovery
[28]   Van Daele next claims that although Concord was obligated to provide all

       information that was available to the organization, it evaded certain discovery




       1
         We note that our review of this and other claims raised by Van Daele on appeal was
       hampered by Van Daele’s failure to cite to relevant portions of the record as required by the
       Indiana Rules of Appellate Procedure.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016   Page 16 of 26
       requests made by Van Daele for a period of approximately thirteen months.

       Van Daele argues that this alleged evasion is inconsistent with a clear

       conscience and is sufficient to support the inference that Concord’s stated

       reason for the termination of her employment was pretext. Review of the

       designated evidence, however, demonstrates that Van Daele’s assertions that

       Concord acted in an evasive manner and that certain interrogatories went

       unanswered for approximately thirteen months are misleading at best.


[29]   On October 15, 2013, Wayne Stubbs, Superintendent of Concord, answered

       Van Daele’s requested interrogatories. Van Daele subsequently determined that

       some of the provided answers were deficient, and on April 1, 2014, informed

       Concord that the answers provided for interrogatories number seventeen,

       eighteen, and twenty-two were deficient. Concord filed supplemental answers

       to these three interrogatories on May 1, 2014.


[30]   On November 5, 2014, during the deposition of Tahara, counsel for Van Daele

       notified counsel for Concord that Van Daele believed that the answers provided

       for interrogatories number eleven, twelve, thirteen, fourteen, fifteen, and sixteen

       were also deficient. Concord filed supplemental answers to these six

       interrogatories as well as interrogatories number nineteen, twenty-four, and

       twenty-five on November 25, 2014. During an April 16, 2015 hearing, the trial

       court and Van Daele’s counsel engaged in the following exchange regarding the

       decision to wait approximately thirteen months to notify counsel for Concord

       of the alleged deficiencies in the answers to interrogatories eleven through

       sixteen:

       Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016   Page 17 of 26
        The Court: I guess an – another question for you, Mr. O’Leary.
        There was a specific request made to the Defendants to
        supplement interrogatories, I believe it was 17 through 20, or
        perhaps, 16 through 20. Why wasn’t a specific request made to
        the Defendants at the time the other request was made to
        supplement Interrogatories 11 through how many numbers it
        was?

        [Counsel]: Purely unconditional trial strategy, Judge. No other
        reason; purely, a trial strategy.

        The Court: Did you believe that their answers to interrogatories
        had been completed, or those were complete answers at that
        time?

        [Counsel]: I certainly did not. I could look at them and tell
        that there were missing pieces of information that I customarily
        see when I ask someone, tell me the names of people who – who
        fired my client. But, again, the Court seems to shift ever so
        slightly in putting the onus on us to get them to tell us what
        happened.

        The Court: Wasn’t that the purpose of discovery though, so that
        parties can exchange information and engage in effective
        discovery to aid in resolving disputes?

        [Counsel]: Absolutely, and what is unequivocal, Judge Lund,
        what is confusing, Judge Lund, why is not clear by a question
        such as Interrogatory 12. If the Defendant fired the Plaintiff,
        then please explain fully each reason, cause, or basis, for firing
        Plaintiff.
               Is the Court suggesting that I have to ask that question
        again, or ask it in a different way?

        The Court: No, Mr. O’Leary, what I’m simply asking is when
        you made a request for supplementation on certain
        Interrogatories if you didn’t think that the answers were complete

Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016   Page 18 of 26
                 in the Interrogatories, why you didn’t ask for supplementation at
                 that time?

                 [Counsel]:     And I told you that it was purely a matter of trial
                 strategy.


       Appellee’s App. pp. 78-79. During this hearing, counsel for Van Daele further

       stated:

                 But my point is, they’re on the offensive with the summary
                 judgment motion, they want something from the Court, right?
                 They didn’t have to file that Motion for Summary Judgment, and
                 my point was, that if they had not filed that Motion for Summary
                 Judgment, the first time anyone would have heard about the
                 inadequacies of these discovery responses would have been in
                 live time in front of the jury, all right.


       Appellee’s App. p. 73.


[31]   On appeal, Van Daele argues that in failing to properly answer the six

       interrogatories in question, Concord acted evasively in an attempt to conceal

       the reason for the termination of Van Daele’s employment. The designated

       evidence demonstrates otherwise. In fact, the designated evidence

       demonstrates that at all relevant time periods, Van Daele was aware of the

       reason for the termination of her employment. As early as April 18, 2012,

       Concord notified Van Daele that her refusal to accept the temporary

       transitional position and return to work would result in the termination of her

       employment. Concord has consistently relied on this reason and has not, at

       any point, presented any other reason for the termination of Van Daele’s


       Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016   Page 19 of 26
       employment. The designated evidence also demonstrates that Van Daele has

       been aware since May of 2012 that Tahara recommended the termination of her

       employment and said termination was approved by the school board and

       Stubbs, in his capacity as Superintendent of Concord.


[32]   The designated evidence does not support the reasonable inference that

       Concord acted with evasion or with the intent to conceal the reason for the

       termination of Van Daele’s employment. To the contrary, to the extent that

       either party could be said to have acted with evasive intent, that party would be

       Van Daele. The designated evidence demonstrates that Van Daele admittedly

       made the tactical decision not to inform Concord of the allegedly deficient

       answers to interrogatories eleven through sixteen in order to put herself in the

       position to surprise Concord by raising the issue for the first time at trial. The

       designated evidence further demonstrates that upon being notified of the

       allegedly deficient answers, Concord timely supplemented their answers to

       more fully answer Van Daele’s questions. Upon review, we conclude that the

       designated evidence relating to Concord’s alleged failure to present timely

       answers to interrogatories eleven through sixteen would not support the

       reasonable inference that Concord’s stated reason for the termination of Van

       Daele’s employment was pretext.


[33]   Furthermore, to the extent that Van Daele relies on In re Danikolas, 838 N.E.2d

       422 (Ind. 2014) and EEOC v. Sears Roebuck and Company, 243 F.3d 853 (4th Cir.

       2001), in support of her claim, we note that both of these cases can be easily

       distinguished from the instant matter. Unlike the instant matter, in both In re

       Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016   Page 20 of 26
       Danikolas and Sears, the defendant articulated untimely new grievances or

       justifications for the termination of the employee’s employment. See In re

       Danikolas, 838 N.E.2d at 429 (providing that the employer provided “shifting”

       reasons for the employee’s discharge); Sears, 243 F.3d at 853-55 (providing that

       the defendant provided untimely additional justifications for its decision to

       revoke the offer of employment). Again, here, the demonstrated evidence

       demonstrates that Concord has provided a consistent reason for the termination

       of Van Daele’s employment throughout all relevant time periods. As such, Van

       Daele’s reliance on In re Danikolas and Sears is misplaced.


                                          4. Failure to Warn
[34]   Van Daele also claims that the designated evidence indicating that she was

       initially only warned that declining the temporary transitional position would

       result in the suspension of her worker’s compensation benefits supports a

       reasonable inference of pretext. The designated evidence demonstrates that in a

       March 16, 2012 letter, Matteson, her immediate supervisor, informed Van

       Daele that declining the temporary transitional position would result in the

       suspension of her worker’s compensation benefits. Matteson did not also

       mention the possibility that declining the temporary transitional position would

       also result in the termination of her employment. Van Daele argues on appeal

       that “[i]f her acceptance of the transition position was so paramount, why

       hadn’t Tahara instructed Matteson to warn Van Daele that her refusal to accept

       it would result in her termination?” Appellant’s Br. p. 19. Van Daele further



       Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016   Page 21 of 26
       argues that “[a]ccordingly, a jury might view Tahara’s explanation for firing

       Van Daele as phoney[.]” Appellant’s Br. p. 19.


[35]   Van Daele’s arguments in this regard seem to imply that Concord had a duty to

       inform her in the March 16, 2012 letter that if she refused the temporary

       transitional position, her employment would be terminated. Van Daele,

       however has failed to point to any designated evidence or citation to relevant

       authority to support this implication.


[36]   Review of the designated evidence demonstrates that Concord gave Van Daele

       ample opportunity to decide to accept the temporary transitional position. The

       fact that Concord initially only warned Van Daele that refusal of the temporary

       transitional position would result in the suspension of her worker’s

       compensation benefits does not support the reasonable inference that Concord’s

       subsequent decision to terminate Van Daele’s employment was pretext.

       Further, the fact that Tahara waited until April 18, 2012, to notify Van Daele

       that in light of her refusal to accept the temporary transitional position, she

       could either resign or her employment would be terminated is insufficient to

       support a reasonable inference of pretext because the intervening days afforded

       Van Daele the opportunity to consider and decide whether to accept the offered

       temporary transitional position.


                                  5. Alleged Suspicious Timing
[37]   Van Daele last claims that the designated evidence suggests that Tahara rushed

       the termination of Van Daele’s employment as the likelihood of her ability to

       Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016   Page 22 of 26
       return to her regular duties appeared more certain. In raising this claim, Van

       Daele asserts that “[o]nce Tahara realized from [Van Daele’s doctor’s] status

       reports that Van Daele was likely to be released to return to regular duty, he

       seized upon her decision to decline the transitional position, one month earlier.

       Tahara rushed to fire Van Daele before [her doctors] released her to return [to

       work] as a bus driver, or so a jury could reasonably conclude.” Appellant’s Br.

       p. 20. We disagree.


[38]   The designated evidence demonstrates that while Van Daele was released by

       her doctors to return to her normal work-related duties around mid-day on May

       7, 2012, nothing suggests that Tahara, or anyone else at Concord, was made

       aware that Van Daele had been released to resume her duties as a bus driver

       until after the decision was made to terminate Van Daele’s employment.

       Tahara notified Van Daele on May 3, 2012, that because she remained unable

       to perform her bus-driving duties coupled with her refusal to accept the offered

       temporary transitional position, Concord “must terminate [her] employment

       contract.” Appellant’s App. p. 411. The designated evidence does not contain

       any indication that Tahara was made aware that Van Daele was on the verge of

       being released by her doctors to resume her bus-driving duties before sending

       the May 3, 2012 letter or at any time prior to the May 7, 2012 school board

       meeting.


[39]   To the contrary, the designated evidence demonstrates that Van Daele did

       nothing to ensure that Concord knew prior to the May 7, 2012 board meeting

       that she had been released to return to work without any restrictions. Van

       Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016   Page 23 of 26
       Daele admitted during her deposition in the instant matter that she did not

       notify anyone at Concord when she was released to resume her bus-driving

       duties on May 7, 2012. Van Daele also admitted that while she understood that

       her doctors would, at some point, notify Concord that she had been released to

       resume her bus driving duties, she did not know whether her doctors provided

       Concord with this information prior to the May 7, 2012 board meeting or on

       some later date.


[40]   Upon review of the designated evidence, we conclude that there is nothing

       suspicious about the timing involved in Concord’s decision to terminate Van

       Daele’s employment. Again, Van Daele first reported her injury to Concord on

       April 19, 2011. She also filed her worker’s compensation claim on this date.

       On November 21, 2011, Van Daele’s doctors first released her to return to work

       with certain restrictions. Concord did not require Van Daele to return to work

       at this time but, rather, allowed her to continue her treatment and receive

       worker’s compensation benefits. On March 12, 2012, Van Daele’s doctors, for

       the second time, released her to return to work with certain restrictions. Three

       days later, Concord offered Van Daele a temporary transitional position which

       complied with the restrictions set forth by her doctors. After Van Daele refused

       to accept the offered temporary transitional position, Concord notified Van

       Daele that in light of her continued inability to perform her job duties coupled

       with her refusal to accept the offered temporary transitional position, her

       employment would be terminated if she did not resign. Van Daele did not

       resign and on May 3, 2012, Tahara sent Van Daele a letter indicating that her


       Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016   Page 24 of 26
       employment would be terminated. Given that the designated evidence is

       devoid of any indication that Concord knew that Van Daele was going to be

       released to return to her bus-driving duties on May 7, 2012, or at any time in

       the near future, we conclude that the designated evidence does not support Van

       Daele’s claim that Concord’s time was suspicious. As such, the designated

       evidence establishing the timing of Concord’s communications with Van Daele

       and the termination of Van Daele’s employment are insufficient to support a

       reasonable inference of pretext.



                                               Conclusion
[41]   In light of the facts above, we conclude that although Van Daele initially

       presented a prima facie case of discrimination, Concord countered by

       satisfactorily articulating legitimate, nondiscriminatory reasons for Van Daele’s

       discharge. See Powdertech, 776 N.E.2d at 1262. Our review of the evidence

       designated by the parties leads us to the conclusion that Van Daele has failed to

       present evidence from which a reasonable trier-of-fact could infer that the

       reasons offered by Concord were mere pretext. See id. Thus, even applying a

       liberal construction in favor of Van Daele, we conclude that Van Daele has

       failed to demonstrate that she was discharged solely in retaliation for filing a

       worker’s compensation claim. See Purdy, 835 N.E.2d at 212. In light of our

       conclusion that Van Daele has failed to establish that she was discharged solely

       in retaliation for filing a worker’s compensation claim, id., we cannot say that

       the trial court erred in granting summary judgment in favor of Concord.


       Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016   Page 25 of 26
[42]   The judgment of the trial court is affirmed.


       Baker, J., and Pyle, J, concur.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016   Page 26 of 26
