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OVERVIEW

Hannesson Murphy
Partner

Indianapolis

11 South Meridian Street
Indianapolis, IN 46204-3535

P 317-231-7210

F 317-231-7433

OVERVIEW

Hannesson Murphy
Partner

Indianapolis

11 South Meridian Street
Indianapolis, IN 46204-3535

P 317-231-7210

F 317-231-7433

Hans Murphy counsels and advises employers nationwide in virtually all aspects of managing their employment relationship with their workforce. Practical by nature, Hans identifies what each client wants to achieve, and then devises a balanced and actionable plan that suits their distinct business and operational imperatives.

OVERVIEW

Hans Murphy counsels and advises employers nationwide in virtually all aspects of managing their employment relationship with their workforce. Practical by nature, Hans identifies what each client wants to achieve, and then devises a balanced and actionable plan that suits their distinct business and operational imperatives.

Hans negotiates and drafts employment agreements, confidentiality agreements, and non-competition and non-solicitation agreements. He advises on the creation and maintenance of effective policies and procedures to govern the workplace, as well as counsels employers with respect to disciplining and terminating employees, reductions in force, and ensuring that group terminations comply with the requirements of federal statutes and regulations. He also defends employers against contract, discrimination, harassment and wrongful discharge claims.

Hans has helped employers with a wide variety of legal matters, including claims involving breach of contract, defamation, discrimination, harassment and wrongful discharge. He has advocated employer positions in connection with privately negotiated settlements, arbitration proceedings and hearings, administrative proceedings, class and collective actions, and litigated claims in state and federal courts across the country, from the filing of a claim through trial and on appeal.

A featured speaker and educator, Hans regularly conducts trainings for employers on ways to improve their employment practices, and frequently presents at seminars for groups such as the Indiana Chamber of Commerce, the Association of Corporate Counsel and the Society for Human Resource Management (SHRM). Hans has presented on such topics as hiring and firing employees in Indiana; protection of a company’s intellectual property, trade secrets and confidential information; how the Affordable Health Care Act will affect employers; steps for effectively handling class action litigation; and properly classifying workers as independent contractors.

In the last several years, Hans has provided legal counsel pertaining to non-competition and trade secrets issues at the local, regional and national levels. He frequently lectures on the subject of 50-State Non-compete Enforcement, to assist employers with making sense of the different rules and regulations that apply in this area from state to state. Hans serves as the editor for the Practical Law Company’s resources on Indiana non-compete laws and trade secrets. He also has published several articles for the Defense Trial Counsel of Indiana (DTCI) on non-compete enforcement, as well as a variety of other topics, and is a frequent contributor to the firm’s employment blog, BTCurrents. Additionally, Hans has co-authored several guides for the Indiana Chamber of Commerce, including the current editions of the Indiana Chamber of Commerce’s Indiana Employer’s Guide to Monitoring Electronic Technology in the Workplace and the Indiana Chamber of Commerce’s Indiana Guide to Hiring and Firing.

Hans is about cutting to the chase when it comes to what his clients need to succeed. He doesn’t believe in wasting time, money or resources and focuses on advice and actions that diffuse stress and resolve issues. On many occasions, he protects his client’s reputation and bottom line by keeping them out of court. However, in the event litigation should ensue, he is dedicated to serving as a formidable advocate.

Prior to joining Barnes & Thornburg, Hans was an attorney in the civil litigation practice of a Miami, Florida, commercial law firm, practicing in general civil litigation, including admiralty law, medical malpractice, products liability, commercial liability, insurance defense, personal injury and employment. Hans has been involved in much more than just employment disputes, which helps him to serve as a well-rounded adviser today.

Professional and Community Involvement

Chair, Defense Trial Counsel of Indiana Employment Section

Member, Indiana State Bar Association

Past president, Dade County Defense Bar Association

Past chair, Commercial Liability, Florida Defense Lawyers Association

Honors

Exceptional Performance Citation, Defense Research Institute

EXPERIENCE
PUBLISHED CASES

U.S Circuit Courts of Appeal

Pierce v. Visteon Corp.

Seventh Circuit Court of Appeals, 2013 WL 3225832 (S.D. Ind. Jun. 25, 2013), aff’d, 791 F.3d 782 (7th Cir. 2015)

In a class action in which the plaintiffs claimed that the client had not provided COBRA notices to separated employees in a timely manner, the class subsequently was certified containing approximately 1,620 members located in several different states. The class sought the maximum COBRA penalty applicable of $110 per day over a period of 18 months, which when applied to the class as a whole, totaled over $73 million. In forming the class, the client was able to successfully convince the court to close the class as of the date the complaint was filed and to narrow the time-periods for entry into the class by state-specific statutes of limitation. The client thereafter came across information that one of its partners had issued COBRA notifications to approximately half of the class members with their final paychecks. Accordingly, the client successfully convinced the court to remove those individuals from the class, which narrowed the class significantly. The client also was able to remove multiple other individuals on a variety of grounds, including that they subsequently obtained health insurance coverage from a new employer or their spouse’s coverage, and they had failed to list claims against the company on their bankruptcy filings. Ultimately, the district court found the COBRA notices had not been issued in a timely manner to the surviving (approximately 700) class members, and awarded them $2,500 per person (roughly amounting to $5 or $6 per day), which amounted to a total award of about $1.8 million. The plaintiffs’ counsel then claimed an award of attorney’s fees, which included – among other things – a portion of the recovery. The court denied the request for a portion of the recovery, and the class appealed.

On appeal, the class sought to overturn both the finding on the merits (which it considered grossly insufficient) and the attorney’s fee award. As an initial matter, the client argued that the appeal of the merits had been waived because the appeal had not been filed until after the fee award had been issued. The class countered that the fee request tolled the time to appeal the merits. The appellate court agreed with the client that the merits and the fee award were independently appealable subjects, and as such the class’ attempt to appeal of the merits was time-barred. Turning to the fee issue, the appellate court concluded that the district judge had not erred in refusing to award a percentage of the recovery or common fund as fees, and ultimately affirmed the district court’s decision in all respects.

Banthia v. Roche Diagnostics Operations, Inc.

Seventh Circuit Court of Appeals, 2012 U.S. App. LEXIS 17770 (7th Cir. Aug. 22, 2012)

The plaintiff alleged that her reclassification from scientist to lab tech (as part of a departmental restructuring) was the product of age and/or national origin discrimination. The district court rejected the plaintiff's claims under both the direct and indirect methods of proof, relying heavily on the arguments advanced in the client, Roche's, briefs, which demonstrated the plaintiff's inability to raise a material issue over whether she was qualified for a higher-level position, or her conjecture that Roche's reasons for reclassifying her were discriminatory.

The Seventh Circuit affirmed, finding no evidence to support the plaintiff's subjective perception regarding lab personnel qualifications, how her qualifications compared to those of her peers, or how Roche should have proceeded in effectuating the restructuring.

Baumann v. the Finish Line, Inc.

Seventh Circuit Court of Appeals, 421 Fed. Appx. 632 (7th Cir. 2011), cert. denied, 2012 U.S. Lexis 1514 (Feb. 21. 2012)

The Seventh Circuit Court of Appeals upheld the validity of the client/employer's (The Finish Line) employment arbitration agreement holding that the former employee was required to submit her claims to arbitration. The client then prevailed in the arbitration.

The appellant sued client-employer, The Finish Line, Inc., for discrimination based on sex and sexual harassment. Before Finish Line hired the appellant, she signed a contract agreeing to resolve any claims concerning her employment through arbitration. The contract referred to a separate plan document containing a more detailed description of the arbitration procedures, including a cost-sharing provision. The appellant's counsel refused to dismiss the case and aggressively resisted Finish Line's attempts to enforce the arbitration agreement. Finish Line moved to compel arbitration and the district court agreed, dismissing the appellant's complaint, and she appealed.

On appeal, the appellant argued that she was not bound by the agreement because she never received a copy of the separate plan document. She also argued that the plan document's cost sharing provision rendered arbitration prohibitively expensive. The Seventh Circuit disagreed. Affirming the district court in all respects, the court held that the contract incorporated by reference the terms of the separate plan document and therefore it was immaterial whether the plaintiff exercised her ability to review it. The court also held that the plaintiff failed to present sufficient evidence demonstrating the fact that the plan document's cost-sharing provision would render arbitration prohibitively expensive.

Estate of Anthony Suskovich v. Anthem Health Plans of Va., Inc.

Seventh Circuit Court of Appeals, 553 F.3d 559 (7th Cir. Ind. 2009)

Summary judgment in favor of client (defendant) affirmed by the Seventh Circuit Court of Appeals.

For over a decade, the employee in question was classified as an independent contractor while working for Anthem/WellPoint (WellPoint) as a computer programmer. That employee worked directly as a contractor for WellPoint until 2001, but from then on worked for WellPoint thru Trasys, an information technology company that supplied contract workers. Following the employee’s death, the deceased’s estate sought declaratory relief affirming that he actually had been either an employee of WellPoint or a joint employee of Trasys and WellPoint. The estate also brought an action under the Fair Labor Standards Act (FLSA) seeking monetary relief for overtime compensation the deceased allegedly was denied. The estate further alleged that the deceased was denied benefits under the Employee Income and Security Act (ERISA) and sought indemnification for the deceased unpaid taxes due to WellPoint and Trasys’ alleged failure to withhold.

The district court held that the deceased was an independent contractor and therefore ineligible for benefits or overtime. The Seventh Circuit Court of Appeals agreed and affirmed summary judgment. The court observed that the deceased controlled the details of his work, was accountable to WellPoint only for the results of his work, had been engaged for specific projects, and was never guaranteed that his work would extend beyond limited durations. Finally, the court observed that the deceased was issued 1099 forms from both WellPoint and Trasys and never was added to either company’s payroll.

Lampley v. Pollution Control Industries of America

Seventh Circuit Court of Appeals, 353 Fed.Appx. 42, (7th Cir. Nov. 23, 2009)

The plaintiff sued client-employer Pollution Control Industries of America (PCI), claiming that his termination was due to race discrimination.However, the plaintiff was terminated because he threatened his supervisor. When the plaintiff reported to work one day smelling of alcohol, his supervisor took him to a local hospital to be screened consistent with the company's alcohol and drug-free workplace policy. While waiting to be tested, the plaintiff told his supervisor that he was "going to pay" for having him tested and admitted to the supervisor "in full view of a hospital nurse" that he was threatening the supervisor. The district court granted summary judgment for PCI finding no evidence to support the plaintiff's race discrimination claim and concluded that he had been terminated for threatening his supervisor.The Seventh Circuit Court of Appeals agreed and affirmed summary judgment. The court also rejected the plaintiff's attempt to claim that he had been treated differently than several other workers who had been disciplined for various reasons, noting that unlike the plaintiff, none of those individuals had directly threatened their supervisor.

Porter v. Provident Life and Acc. Ins. Co.

Eleventh Circuit Court of Appeals, 2006 WL 249541 (11th Cir. Feb. 2, 2006)

On appeal from a decision granting summary judgment in the United States District Court for the Middle District of Florida, the court affirmed the lower court decision. The court held that the lower court did not err in ruling that the client (a plan administrator over an ERISA based long-term disability plan) did not abuse its discretion and acted reasonably in denying long-term disability benefits to an employee based on evidence that the employee refused to undergo an independent medical examination during the pendency of the benefit appeals process.

Cabrera-Espinal v. Royal Caribbean Cruises, Ltd.

Eleventh Circuit Court of Appeals, 253 F.3d 629 (11th Cir. 2001)

A cruise ship employee sued for sick wages, in connection to the Jones Act, in the United States District Court for the Southern District of Florida, arguing that he was entitled to his average monthly salary following a shipboard injury instead of the minimum amount set forth in his collective bargaining agreement. The appellate court agreed with the client (a cruise ship company) holding that nothing in maritime law prevented the setting of sick wages in a contract below the crewman’s average income and enforced the terms of the agreement as written. The court also agreed that the company owed him no further obligations after the ship’s final voyage was completed.

U.S. District Courts

Secrease v. Western & Southern Life Ins. Co.

Southern District of Indiana, 2015 WL 7096295 (S.D. Ind. Nov. 12, 2015)

The plaintiff worked for the client until it came to light that he was moonlighting in violation of company policy. After being presented with the choice of leaving one of these employers, the plaintiff failed to return to work to the client and was terminated. The plaintiff then sued alleging sex and age discrimination, retaliation, intentional infliction of emotional distress, and defamation. When the client sought to dismiss his claims, the plaintiff argued that the parties needed to arbitrate disputes and attached a purported agreement to arbitrate. The agreement, however, was a fraud that was taken from another employee. This prompted the court to dismiss the plaintiff’s claims with prejudice.

Thereafter, the plaintiff tried again with this suit, which he filed in state court – once more claiming discrimination, and retaliation, libel and adding conspiracy and violations of restrictive covenants. The client removed the matter to federal court and it was assigned to the same judge who previously addressed the plaintiff’s claims. The court rejected the plaintiff’s motion to transfer the case to a different judge than the one who previously dismissed similar claims and also rejected his motion to remand the case to state court, finding no procedural defects in its removal. Lastly, the court granted the client’s motion to dismiss on res judicata grounds and awarded the client sanctions for having to defend the matter.

Morey v. Glazer's Distributors of Indiana, LLC

Southern District of Indiana, 2015 WL 5567120 (S.D. Ind. Sept. 22, 2015)

The plaintiff, who originally was from Peru, worked for the client in a distribution center. After several employees repeatedly expressed concerns about the plaintiff’s vulgar and racist language and threatening conduct, including threats to shoot other employees, he was placed on a final warning. While on final warning, the plaintiff got into a disruptive argument with a co-worker and consequently he was terminated. Thereafter, he claimed national origin discrimination and harassment because of his Peruvian nationality and attempted to claim disability discrimination. The court granted summary judgment in the client’s favor. On his disability claim, the court first noted that the plaintiff had failed to identify disability as a type of discrimination on his EEOC charge. Beyond that, the court also found no evidence supporting any claim of disability discrimination. On his national origin and harassment claims, the court found that the plaintiff was not meeting the company’s legitimate expectations, or that he was treated worse than a similarly situated employee. Moreover, the plaintiff also failed to provide any evidence establishing that the asserted reason for terminating his employment was pretextual.

Johnson v. Western & Southern Life Ins. Co.

Southern District of Indiana, 2015 WL 4545930, (S.D. Ind. July 28, 2015)

The plaintiff was a former employee of the client who sued claiming violations of restrictive covenant agreements, defamation, negligence and constructive fraud. The plaintiff had a lengthy litigation history with the client, initially claiming discrimination and pressure to participate in alleged illegal business practices. Thus, this was the third lawsuit filed by the plaintiff regarding the same core facts. The first, alleging similar issues to this matter, was dismissed in favor of a mandatory arbitration policy, which was upheld on appeal. Subsequently, the plaintiff tried again in state court, with the same result. In this final lawsuit, the plaintiff tried to remand the matter to state court and move to amend the complaint, but both of these motions were denied. The court thereafter granted the client’s motion to dismiss – again due to the mandatory arbitration provision – and ordered the plaintiff to pay the client’s attorney’s fees and costs.

Thoennes v. Roche Diagnostics Corporation

Northern District of Texas, No. 3:11-CV-2337-N (N.D. Tex. Oct. 24, 2013)

The plaintiff sued client-employer Roche Diagnostics Corporation (Roche) for age discrimination based on the Texas Commission on Human Rights Act (TCHRA). The clinet prevailed following a four-day jury trial in Dallas, Texas, in which the jury returned a verdict in favor of Roche in all respects.

The plaintff was originally a retail account manager for Roche. During a corporate reorganization in 2006, his position was eliminated and he was selected for a new position , channel business manager, that had new responsibilities, includingcalling on managed care accounts and formulating strategies for improving Roche’s market position with respect to those accounts. After assuming his new role, Roche’s market share with the plaintiff’s largest managed care account promptly and significantly declined. The plaintiff refused to acknowledge that there was any market share decline. He also refused to listen to the coaching and advice provided to him by two different Roche supervisors to correct the issue, which ultimately culminated in his placement on corrective action and termination. The plaintiff was 50 when he was terminated and claimed that he was fired as a result of his age. The plaintiff’s age claim rested on the fact his replacement was younger, and that his supervisor used the word “tenure” on a handful of occasions, which Thoennes interpreted to mean “age.”

At trial, the plaintiff reiterated that there was no loss of market share in his largest account. Roche successfully rebutted this claim by showing the jury that the market share numbers drawn from the materials that the plaintiff produced in discovery confirmed there was a consistent decline during his management of the account. Roche also showed the jury that the plaintiff’s supervisor treated the channel business managers who reported to him equally and regardless of their age – providing the highest performance scores to the oldest employee. Additionally, Roche showed that the supervisor used the word “tenure” not as a proxy for “age,” but merely as a substitute for “experience” because he expected more from someone, like the plaintiff, who had been in sales with the company for a long time (a sentiment that the plaintiff himself shared, conceding in a video clip from his deposition played to the jury that he expected more from himself because of his experience). Based on the evidence presented by Roche, the jury unanimously found that age was not a motivating factor in the plaintiff’s discharge and ruled in favor of Roche.

Bates v. Roche Diagnostics Corporation

Southern District of Indiana, 971 F.Supp.2d 833 (S.D. Ind. 2013)

The plaintiff sued client-employer Roche Diagnostics Corporation (Roche) for discrimination and retaliation based on her sex and alleged disability and also claimed violations of the Family Medical Leave Act (FMLA). The plaintiff was employed in Roche’s information security group and was responsible for assisting the development and maintenance of information security policies, procedures and standards for Roche’s global operations and training users and managers on information security projects.She was terminated in early 2011 for poor performance after extensive coaching by her supervisor.

Roche was granted summary judgment on all of the plaintiff’s claims. Her sex discrimination and retaliation claims were based on a remark made by her former supervisor in 2006 that she reported to human resources. The court agreed with Roche that this claim was untimely and insufficient to support claims regarding her termination by a different supervisor in 2011. With respect to the plaintiff’s ADA discrimination, accommodation and retaliation claims, the court agreed with Roche that the plaintiff was not a qualified individual with a disability: she never presented any work related restrictions to Roche, never requested an accommodation because of a disability, and never presented any evidence that she had an impairment that substantially limited one or more major life activities. The court also agreed there was no FMLA violation as the company had granted all of the plaintiff’s requested leaves during her employment. Further, the record evidence showed that the plaintiff’s supervisor did not treat employees differently because of their sex, disability or requests for leave. To the contrary, the evidence showed that the plaintiff’s peers shared almost all of her same protected characteristics and her supervisor rated each of them more highly because of their better performance.

Shedlock v. Visteon Corp.

Southern District of Indiana, 2012 WL 2912722 (S.D. Ind. July 16, 2012)

The plaintiff, a former employee of the client, claimed that he had not been issued a timely COBRA notice of continued health benefits following his separation from employment and sought statutory penalties and other remedies. The client moved for summary judgment on the grounds that the plaintiff was not eligible to receive a COBRA notice. While employed, the plaintiff took unpaid leave, and during periods of unpaid leave, the employee was responsible for paying his portion of the health insurance premiums. In this case, the plaintiff failed to pay any of the invoices for the insurance premiums, and as such, his coverage was cancelled. The court agreed with the client that the plaintiff had not lost his coverage as a result of a qualifying event, such as the termination of employment; but rather because he failed to pay his insurance premiums. Accordingly, he was not entitled to a COBRA notice.

Randall v. Rolls-Royce Corporation

Southern District of Indiana, 742 F. Supp. 2d 974, 982 (S.D. Ind. 2010), aff’d, 637 F.3d 818 (7th Cir. 2011)

Two former employees of the client sued claiming gender discrimination in violation of the Equal Pay Act and Title VII. The plaintiffs initially sought to represent a class of female employees occupying various high salary management pay grades at the company through disparate treatment, disparate impact, and pattern and practice theories. The client successfully defeated the plaintiffs’ attempt to certify the matter as a class action, with the court finding, among other things, that the key factor of commonality was lacking.

Turning to the merits, the client also successfully obtained summary judgment on the claims filed by both named plaintiffs. In a detailed opinion, the court found that the employees had failed to demonstrate that they received less pay than comparably employed men given the facts that the comparators at issue were responsible for different product areas, managed different numbers of employees and had greater levels of seniority. The plaintiffs also failed to demonstrate that the client’s proffered legitimate, non-discriminatory reasons for its actions were pretexts for gender bias. The client successfully defended the district court’s decision on appeal, resulting in an affirmance by the Seventh Circuit in all respects.

Beecher v. Roche Diagnostics Corp.

Southern District of Indiana, 2009 WL 3260080 (S.D. Ind. Sept. 21, 2009)

The plaintiff sued client-employer Roche Diagnostics Corporation (Roche) for race discrimination alleging that she had been unlawfully passed over for 27 different promotional opportunities. The plaintiff also claimed that the company retaliated against her by failing to promote her and giving her less desirable job assignments because she had complained about what she perceived as racism. Roche was granted summary judgment on the grounds that the record evidence conclusively demonstrated that the plaintiff had a long history of mediocre job performance and was not the most qualified candidate for any of the various positions she sought. Roche also showed that the company had not retaliated against the plaintiff, particularly given the fact that she remained employed by the company despite having filed two EEOC charges against it.

Baumann v. Finish Line, Inc.

Southern District of Indiana, 2009 WL 2750094 (S.D. Ind. Aug. 26, 2009)

The plaintiff sued client-employer, The Finish Line, for discrimination based on sex and sexual harassment. The plaintiff’s employment at was subject to an arbitration agreement, however the plaintiff's counsel refused to dismiss the case and aggressively resisted the employer’s attempts to enforce the arbitration agreement that the plaintiff signed at the time she was hired. The employer moved to dismiss on the ground that the plaintiff's claims squarely fell within the scope of the compulsory arbitration provision. The district court granted The Finish Line’s motion noting the arbitration agreement complied with applicable law. This ruling was affirmed on appeal (see above) and Finish Line won the arbitration.

Peggy Tokheim vs. Georgia-Pacific Gypsum, L.L.C.

Northern District of Iowa, 606 F. Supp. 2d 988 (N.D. Iowa 2009)

Summary judgment was granted to client-employer in a case involving alleged Title VII claims of sexual harassment, discrimination and retaliation, and a pendent state law claim under the Iowa Civil Rights Act for sexual harassment, discrimination and retaliation.

The plaintiff argued that she was subjected to sexual harassment and discrimination during her tenure with Georgia-Pacific. Upon termination, she brought an action against the company alleging violations of Title VII and the Iowa Civil Rights Act. Georgia-Pacific moved for summary judgment arguing that the plaintiff’s claims were barred under the doctrine of judicial estoppel; specifically that she failed to disclose her claims against it during a prior Chapter 13 bankruptcy proceeding.

In ruling on Georgia-Pacific’s motion for summary judgment, the district court found that the plaintiff’s failure to amend her bankruptcy schedules to include her claims was the equivalent of representing to the bankruptcy court that these claims did not exist. Consequently, her subsequent lawsuit against Georgia-Pacific was “clearly inconsistent” with her position taken in the bankruptcy court. Judicial “acceptance” of the plaintiff’s position occurred when the bankruptcy court discharged her debts based on the information provided to it. The district court observed that her administrative claims against Georgia-Pacific were filed with the EEOC and the Iowa Civil Rights Commission more than three months before the bankruptcy proceedings were concluded. As a result, if she were to have secured a judgment against Georgia-Pacific without disclosing her claims in the bankruptcy proceeding she would have derived a windfall. The court found that the plaintiff was bound by her previous representations to the bankruptcy court and was judicially estopped from pursuing an action against Georgia-Pacific.

Batesville Casket Company, Inc. v. United Steel Workers of America, Local Union No. 9137

Eastern District of Tennessee, 2008 U.S. Dist. LEXIS 75253 (E.D. Tenn. 2008)

Summary judgment was granted in favor of the client-employer (plaintiff) where the client asked the court to review and overturn an arbitrator's pursuant to §301 of the National Labor Relations Act (NLRA), 29 U.S.C. §185.

Batesville Casket Company and United Steel Workers of America (Union) entered into successive collective bargaining agreements (CBA) pursuant to the National Labor Relations Act. The first CBA was entered into in 1999. Among other things, the 1999 CBA required a four-step dispute resolution process as the exclusive procedure for bringing a grievance to arbitration. As the 1999 CBA neared expiration, Batesville and the Union negotiated a successor agreement, which went in to effect on Sept. 5, 2005. In early 2005, while the 1999 CBA was still in effect, a dispute arose between Batesville and the Union regarding whether certain Union employees--tool crib attendants--were entitled to weekend overtime. This dispute ripened into grievances which were eventually submitted to arbitration in 2006.

The aarbitrator found that the Batesville violated the 1999 CBA from Jan. 1 to Sept. 5, 2005, and also the 2005 CBA from September 2005 to the date of the Award. When Batesville refused to pay any amounts under the 2005 CBA, the Union filed a Request for Clarification with the arbitrator. In response, Batesville argued that the Union had grieved only alleged violations of the 1999 CBA; thus, the arbitrator lacked jurisdiction to interpret the 2005 CBA. The arbitrator ruled he had jurisdiction to award a remedy under the 2005 CBA. Batesville then filed an action in district court challenging the enforceability of the arbitrator's Award as it related to the 2005 CBA.

The district court ruled that the arbitrator exceeded his contractual authority by purporting to issue an award under the 2005 CBA. First, it was undisputed that the grievances were submitted under the mandatory four-step dispute resolution process set forth the 1999 CBA. The CBA also mandated that each arbitration hearing should deal with no more than one grievance except by mutual written agreement. Here there was no mutual written agreement.

Further, it was undisputed that, in conjunction with the arbitration hearings at issue, the union did not file grievances under the 2005 CBA. Like the 1999 CBA, the 2005 CBA required a four-step dispute resolution process as the exclusive procedure for bringing a grievance to arbitration. Therefore, no such grievances progressed through the four-step procedure required before any dispute would be subject to arbitration. As a result, the arbitrator did not have authority to render decisions under the 2005 CBA.

The court also rejected the Union’s argument that Batesville waived, by inaction, its objection to the arbitrator expanding his award to include the 2005 CBA when it failed to object to the Union’s opening statement. Accordingly, the Court denied enforcement to the arbitrator’s award as it applied to the 2005 CBA.

Estate of Anthony Suskovich v. Anthem Health Plans of Virginia, Inc.

Southern District of Indiana, 2007 WL 4438936 (S.D. Ind. Dec. 10, 2007)

Secured summary judgment in favor of client-employer, where the plaintiff failed to establish evidence that a former independent contractor engaged by the defendant-client was actually an employee (see affirmance on appeal above).

Streeter v. SBC et al.

Southern District of Indiana, 2007 WL 4643703 (S.D. Ind. March 5, 2007)

A former field engineer alleged racial discrimination in violation of Title VII of the Civil Rights Act after he was terminated for violating the employer's "zero tolerance" policy regarding the use of company-issued equipment. During an audit of two of the employee's company-issued laptops, the employer used a software program which detected pornographic images accessed at times when the employee was at work and off of work. Barnes & Thornburg successfully assisted the client in obtaining summary judgment on all of the plaintiff's claims.

Gorman-Geisler v. Federal Express Corporation

Southern District of Indiana, 2007 WL 2473484 (S.D. Ind. Aug. 28, 2007)

An aircraft cleaner and de-icer for the client went out on short-term disability and then long-term disability under the provisions of the applicable plan documents. After collecting two years of long-term benefits, the plan administrator advised the plaintiff that in order to continue to receive benefits, she would need to meet the definition of total disability. The plaintiff submitted documentation which the plan reviewed. The plan eventually concluded that she was not totallydisabled because there was no evidence she was prevented from engaging in any compensable occupation for 25 hours per week – the applicable definition – and cut off benefits. The court granted the client’s motion for summary judgment. The underlying record showed at least five different peer physicians who concluded she was not totally disabled, and as such, the plan’s decision was not an abuse of discretion. In reaching this conclusion, the court disregarded the contrary opinion of the plaintiff’s treating physician and held it was not entitled to special deference.

Porter v. SmithKline Beecham Corporation

Middle District of Florida, 373 F.Supp.2d 1306 (M.D. Fla. 2005)

The plaintiff, an employee of the client, claimed she had been improperly cut off from long-term disability benefits. The employee requested disability benefits on the grounds that she suffered from multiple ailments, including fibromyalgia. The applicable plan document assessed continued eligibility for benefits on the employee being unable to perform the duties of her job for two years, and then her inability to perform any job thereafter. After two years, the plaintiff’s treating physician stated that she could not make an eight-hour day, but that she could drive, walk and stand or sit for up to four hours at a time. A nurse hired by the plan administrator found that the plaintiff had several horses and spent a large portion of her day caring for the horses. Based on these determinations, the administrator cut off the plaintiff’s benefits at the expiration of two years. After undergoing various administrative appeals, the plaintiff finally challenged the decision with her former employer. The employer requested that she undergo an independent medical examination as permitted by the plan document. Then plaintiff, however, refused and filed suit. The court upheld the company’s exercise of discretion in demanding an examination, finding that it had acted reasonably and did not abuse its discretion by requesting the examination or denying the plaintiff’s appeal when the she refused to undergo the examination.

Florida Power and Light, Co. v. Qualified Contractors, Inc.

Southern District of Florida, 2005 WL 8165441 (S.D. Fla. June 13, 2005) & 2005 WL 5955702 (S.D. Fla. Dec. 6, 2005)

In a dispute between a power company and the client (a contractor hired to install combustion turbines and electrical generators for a power plant), a turbine failed and the power company sued for damages, alleging various causes of action. In the first case, the client successfully dismissed claims for breach of implied warranties on the grounds that the terms of the parties’ contract governed any warranties between them, and also dismissed a companion claim of negligence on the grounds that this was barred by the economic loss rule. In the second case, the client successfully struck the power company’s liability expert witness because his proposed testimony ad expert report failed to meet the standards required by Daubert, and specifically failed to show that the expert’s testimony was based on sufficient facts or data or was the product of reliable methods or principles.

State Supreme and Appellate Courts

John Haegert v. University of Evansville

Indiana Supreme Court, 977 N.E.2d 924 (Ind. 2012)

In a unanimous opinion issued by the Indiana Supreme Court, our client, the University of Evansville, obtained a complete victory in a lawsuit brought by a tenured professor for breach of contract based on his dismissal for sexual harassment. This case represents the end result of seven years of protracted litigation. The University terminated the plaintiff, a tenured professor, following an investigation which concluded that he had sexually harassed one of his colleagues in violation of University policy. The professor responded by filing a breach of contract action in Vanderburgh Circuit Court against the University, alleging that it did not properly follow its policies in terminating him. In tandem with this claim, the professor also filed a separate defamation lawsuit against the colleague, who claimed that he had harassed her (that case likewise was successfully resolved on summary judgment against the professor). Thereafter, both parties filed motions for summary judgment. The trial judge granted summary judgment for the University and summarily denied the professor's competing motion. After the Indiana Court of Appeals reversed this decision, the University (supported by amicus briefs from the Indiana Legal Foundation, Indiana Chamber of Commerce, and Independent Colleges of Indiana) sought to transfer the matter to the Indiana Supreme Court. The Supreme Court accepted transfer and vacated the Court of Appeals’ decision. The Supreme Court affirmed the trial judge’s decision to grant summary judgment to the University in its entirety. The Supreme Court’s extensively detailed 40-page opinion fully validated not only the investigative procedures utilized by the University prior to terminating the professor, but also conclusively established that the University could contractually require its tenured professors to adhere to employment policies containing standards more stringent than those mandated by Title VII.

John Haegert v. Margaret McMullan

Indiana Court of Appeals, 977 N.E.2d 924 (Ind. Ct. App. 2012)

The appellate court affirmed summary judgment in favor of the client on defamation, tortious breach of employment contract and intentional infliction of emotional distress claims filed by a former university professor, who had been terminated for alleged sexual harassment of the defendant. This was a related matter to the University of Evansville case (977 N.E.2d 924), ultimately decided by the Indiana Supreme Court. The client (the professor’s supervisor) collected documentation of complaints from other students about his past inappropriate conduct and reported this to the University’s Affirmative Action Officer in conjunction with making her own harassment complaint about him. The court agreed that the allegations of the complaint were insufficient to state a claim for defamation (on the grounds of a qualified privilege), and that the other tort claims asserted by the professor similarly lacked merit.

Juarbe v. SmithKline Beecham Clinical Laboratories

Florida Fourth District Court of Appeal, 762 So.2d 534 (Fla. 4th DCA 2000)

In a wrongful death suit that claimed a laboratory was negligent in interpreting and processing several pap smear slides, we successfully striking the plaintiff’s expert on the grounds that he was a pathologist and not qualified in the specific specialty of cytopathology engaged in by the client (a laboratory). The trial court granted summary judgment in favor of the laboratory. The appellate court subsequently affirmed summary judgment finding that there were no genuine issues of material fact as to causation and also agreed that the trial court properly exercised its discretion in striking the plaintiff’s expert.

REPRESENTATIVE PRESENTATIONS
  • Noncompete Roundup, ICLEF Recent Developments in Employment Law Seminars, 2017-2019
  • Properly Classifying Contractors, Indiana Chamber of Commerce, Webinar, 2010, 2011, 2016, 2019
  • Putting in Place Document Retention Programs, National Business Institute, 2019
  • Practical Options to Reduce Discovery Costs, Webinar, 2019
  • Hiring and Firing Employees in Indiana, Indiana Chamber of Commerce, 2011-2017
  • Workplace Behavior & Privacy – Current Developments, Lorman, 2016
  • Employment Potpourri, ICLEF Recent Developments in Employment Law Seminar, 2016
  • Do This, Not That for Employers, Webinar, 2016
  • Immigration and Personnel Form Compliance, National Business Institute, 2016
  • Taxation and Other Payroll Issues, Lorman, 2015
  • The Coming Storm: How the New Health Care Act Will Affect Employers & Potentially Expose Them To Additional Liability And Lawsuits, Lorman, 2010, 2013, 2014
  • Don't Bet the Company on a Class Action: Navigating The Turbulent Seas of Class Action Litigation, Lorman, 2009
  • Pregnancy Discrimination, Lorman, 2009
REPRESENTATIVE PUBLICATIONS
  • Co-author, Indiana Guide to Hiring and Firing, 5th and 6th Editions, Indiana Chamber of Commerce, 2016
  • Co-author, How The Department of Labor's 2016 FLSA Overtime Expansion Rule Will Impact the Evaluation of Exempt Status for Indiana Employers, Defense Trial Counsel of Indiana (DTCI), 2016
  • Reducing Discovery Costs in Employment Cases, DTCI, 2016
  • Editor, Indiana Non-Compete Laws, Practical Law Company, Thomson Reuters, 2016-Present
  • Editor, Indiana Trade Secret Laws, Practical Law Company, Thomson Reuters, 2016-Present
  • Editor, Indiana Drug-Testing Laws,Practical Law Company, Thomson Reuters, 2016-Present
  • Editor, Indiana Background Check Laws, Practical Law Company, Thomson Reuters, 2012-Present
  • The Limits of What's Reasonable: A Practitioners Guide To The Enforceability Of Restrictive Covenants In Indiana, DTCI, 2015
  • The Challenges of Classifying Workers as Independent Contractors, DTCI, 2015
  • Co-author, Indiana Employer's Guide to Monitoring Electronic Technology in the Workplace, Indiana Chamber of Commerce, 2011
  • Accountant Liability for Negligence in the Absence of Privity, Florida Trial Advocate Quarterly, Fall 2005
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