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OVERVIEW

Labor and Employment On your team

Every day, our attorneys navigate complex labor and employment laws and regulations, guiding clients through difficult workforce challenges. Our passion for what we do and the clients we serve allows us to tackle hard issues and help stamp out opportunistic employment claims.

At Barnes & Thornburg, we believe that to succeed in today’s competitive global marketplace, we must exceed our client’s expectations at every turn. Our national Labor and Employment team provides comprehensive legal counsel, helping clients plan for and anticipate the unexpected. We advise on the full range of HR issues affecting growth and profitability — from productivity, employee benefits and rising healthcare costs, to traditional labor law and union avoidance tactics, to serious litigation threatening the bottom line and reputation.

Our clients range from Fortune 100 to family owned companies. Our firm represents some of the world’s most recognizable employers on regional, national and international levels across domestic and international time zones. We also work with small businesses in need of advice on specific matters.

Dedicated to realizing the right result, we are committed to delivering honed skill and relentless determination to complex litigation and class action claims. Our litigators are not only advocates, but also appropriately aggressive. We offer a proven track record of favorable outcomes whether behind the scenes, in arbitration and mediation, in state and federal court, or before the National Labor Relations Board (NLRB). We are appreciated for our ability to support, lead and influence vital conversations and communications that impact human resource decisions on all fronts.

Our attorneys serve as critical members of client teams and a crucial component of their success. We seek to provide solutions that minimize the inherent risks of managing a workforce. We serve as trusted advisers, never losing sight of what is important to each client. We do it all with tenacity and creativity, as well as laser sharp focus on each client’s specific business goals. Our attorneys are personally committed to making themselves available, accessible and valuable by delivering a unique blend of business smarts, legal exactitude and cost effectiveness.

For the latest labor and employment news and updates, follow us on Twitter at @BTLawLE.

Practice Leaders

Kenneth Yerkes

Kenneth J. Yerkes

Partner
Labor and Employment Department Chair

Indianapolis

P 317-231-7513

F 317-231-7433

EXPERIENCE
  • 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.
  • A non-profit health care organization sought Barnes & Thornburg LLP's assistance after an adverse finding by the government as part of an affirmative action audit. With the firm's assistance, the client successfully negotiated a conciliation agreement with the government. The audit has now been concluded with no further adverse findings.
  • Assisted client employer in obtaining summary judgment in a "regarded as" disability claim under the Americans with Disabilities Act.
  • Assisted client in obtaining disqualification of plaintiff's counsel in employment case.
  • Assisted client in obtaining summary judgment in age discrimination claim.
  • Assisted client in obtaining summary judgment in professor's 42 U.S.C.S. § 2000 e-2(a)(1) gender discrimination claim when professor failed to present prima facie case of reverse discrimination, and university showed that more qualified woman was hired to teach world history.
  • Assisted client with case in which court found no direct evidence of racial discrimination nor evidence of similarly situated non-black employees who were treated better dooms Plaintiff's racial discrimination termination claim.
  • Assisted client-employer in defeating a motion to compel financial information on client's corporate net worth because the information was irrelevant to an assessment of punitive damages.

    Multiple plaintiffs filed a Title VII employment discrimination action against their employer, Covington Foods, Inc. alleging sexual harassment by members of its management. Plaintiffs filed a motion to compel disclosure of Covington’s financial information arguing that it was relevant to their assessment of an award of punitive damages.

    In ruling against Plaintiffs, the court observed that the law of diminishing marginal utility, which supports the relevance of a natural person's wealth to assess punitive damages, does not apply to corporations. Specifically, corporations are abstract entities whose wealth is owned by stockholders. Since the marginal utility of punitive damages does not decrease as the wealth of the corporation increases, its net worth is irrelevant to the assessment of punitive damages against it. Accordingly, Plaintiffs’ motion to compel was denied. The matter was tried to a jury which rendered a defense verdict on all claims.
  • Assisted client-employer in obtaining summary judgment in a age discrimination claim.

    Calvin Latner worked for Delta-HA and its predecessor, Delta Resins and Refractories, Inc., for about seven years. Delta-HA eventually joined forces with Borden to form HAI. Thereafter, Latner was terminated as part of a reduction in force. Latner subsequently filed suit alleging age discrimination in violation of the Age Discrimination in Employment Act (ADEA), based both on his termination and the company’s failure to rehire him. Defendants Delta-HA and HA-International moved for summary judgment.

    The court observed that although Latner established a prima facie case of age discrimination, he failed to produce sufficient evidence that would permit a jury to conclude that his employer’s stated reasons for his termination and failure to rehire him were pretexts for age discrimination. Although Latner introduced evidence of age based comments made by a supervisor, they were not relevant as the supervisor was not involved in any relevant employment decisions. Instead, the evidence indicated that the decisions to terminate Latner's employment and not rehire him were based on the fact that another individual possessed more overall “product knowledge” in relation to the organization’s goals. Additionally, this individual was noted as a better salesman than Latner. Accordingly, the court granted the motion for summary judgment.
  • Barnes & Thornburg assisted this client with an OFCCP compliance review. This was a difficult audit due to recordkeeping issues. Ultimately, we were able to help the client successfully close this audit.
  • Barnes & Thornburg LLP has provided general advice relating to affirmative action plans for a health care assessment company.
  • Barnes & Thornburg presented training to this client’s in-house legal and HR staff on affirmative action compliance. The firm has since assisted the client with defending a number of affirmative action compliance evaluations for the company’s various subsidiaries.
  • Barnes & Thornburg's Keith White acts as outside labor and employment counsel to EP Management Corporation, a diversified holding company that includes EP Minerals, a leading global supplier of diatomaceous earth products. Most recently, Keith assisted the client in negotiating a collective bargaining agreement in Blacksburg, Virginia.
  • Client-employer obtained summary judgment on a former employee's ADEA damages claim because the employee did not discharge her duty to mitigate damages; a full-time bartending job was not comparable to the former managerial job in terms of duties and earnings.

    Hazelene Hutton was employed by Sally Beauty Company, Inc. (Sally Beauty) until her termination in 2001. Hutton was 58 years old. Hutton subsequently brought a lawsuit against Sally Beauty arguing that she was terminated based on her age in violation of the Age Discrimination in Employment Act (ADEA). Sally Beauty moved for summary judgment based on damages, arguing that even if Hutton were able to prove age discrimination, she would not be entitled to damages due to her alleged failure to mitigate these damages.

    In support of its motion for summary judgment, Sally Beauty submitted a collection of classified ads from local newspapers demonstrating that comparable retail management job openings were available in the geographic region where Hutton lived. For example, there were openings for video store managers, store team leaders, an office manager for a winery, managers for a Hallmark store, merchandising managers and store managers for a clothing store.

    The Court observed that Hutton had not made any attempts to secure comparable employment. Additionally, Hutton introduced no evidence in support of a good faith effort to secure comparable employment. The Court observed that Hutton’s full-time bartending job was not comparable in terms of duties and responsibilities or in terms of earnings. Accordingly, the district court granted Sally Beauty’s motion for summary judgment.
  • Confronted with an 86-paragraph complaint extensively detailing facts allegedly supporting former Roche Diagnostics Corporation Account Manager Martin Grant’s claims of age discrimination (including an assertion his direct supervisor told him he should leave Roche because “sales is a young man’s game”), Ken Yerkes and David Pryzbylski successfully assisted firm client Roche obtain Summary Judgment on all of Grant’s claims in the Eastern District of New York.

    From the outset, litigation was contentious, as Grant immediately began raising electronic discovery issues. Discovery ultimately lasted more than a year, during which time tens of thousands of documents were produced, depositions were conducted around New York state and Pennsylvania – including an expert regarding Grant’s alleged damages – and Ken and David tracked down a key witness to obtain an affidavit supporting Roche’s defenses.

    In awarding summary judgment for Roche, the Court heavily relied on Ken and David’s Reply Brief that dismantled each of Grant’s arguments and also looked to the affidavit testimony of the former Roche employee that was secured by Ken and David. The Court capped its colorful opinion by holding “the record is devoid of any evidence that age was a motivating factor in--let alone the ‘but-for’ cause of--Roche’s decision to terminate Mr. Grant’s employment.” In addition to a favorable ruling on the merits, the Court awarded Roche over $6,000.00 in costs it incurred while defending the lawsuit, including electronic discovery costs.
  • Court granted client employer summary judgment on the employee's race discrimination claim because he failed to show that the employee's reason for terminating him, namely, due to a reduction in force, was pretextual.
  • Defended and closed two affirmative action audits for one of the nation's largest accounting and consulting firms. The organization has 25 facilities with 2,400 personnel and serves clients worldwide in more than 400 cities.
  • Defended diocese against various claims, including blacklisting and tortious interference with a business relationship. On appeal, the Indiana Supreme Court reversed, remanded, and instructed the trial court to grant summary judgment.
  • Denial of holiday pay.
  • Discharge for insubordination and profanity to supervisor; reinstatement wo/back pay; grievant required to pass medical exam to determine fitness for employment.
  • Discharge for threatening and intimidating co-workers.
  • Discharge for three-day absence no-call/no show.
  • Discharge for violation of Last Chance Agreement (positive for alcohol consumption); arbitrability of grievance.
  • Facing the prospect of paying out hundreds of thousands of dollars more in bonuses to certain sales employees than it initially contemplated, a firm client changed its objectives under a bonus program it maintained for sales employees mid-year due to unforeseen circumstances that resulted in major increased sales totals for several of its employees (i.e., raised the goals, which in turn lowered the employees’ opportunity for bonus compensation). One of the employees brought suit when he received a reduced bonus under the “new” system, alleging that he was entitled to the considerably larger bonus he would have received under the objectives originally communicated to him by the company. Partner Nathan Baker and Associate David Pryzbylski argued on behalf of their client that because the employee was at-will, the company was privileged to make changes to any of the terms and conditions of the employee’s employment, including his compensation under the bonus program. The court adopted the rationale set forth by Nathan and David and awarded the client summary judgment against the employee on all of his claims in February 2011.
  • Holding that the commission at issue was not "wages" within the meaning of the Indiana Wage Payment statute.
  • In a suit where a former employee alleged her rights under the Family Medical Leave Act (FMLA) were violated when she was terminated for violating client Disetronic’s “no show/no call” policy while having FMLA request paperwork pending, Barnes & Thornburg LLP assisted client Disetronic on their motion for summary judgment in the United States District Court of the Southern District of Indiana. In addition to granting a favorable ruling on the merits that upheld employers’ rights to enforce their reasonable attendance policies even while FMLA paperwork is pending, the Court also struck an affidavit submitted by the Plaintiff in support of her opposition to summary judgment that conflicted with her deposition testimony.
  • In a unanimous opinion issued recently by the Indiana Supreme Court, 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. Following oral argument on the merits of the appeal, 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 validates not only the investigative procedures utilized by the University prior to terminating the professor, but also conclusively establishes that the University could contractually require its tenured professors to adhere to employment policies containing standards more stringent than those mandated by Title VII.
  • Judgment entered against plaintiff in Title VII action on the basis of the statute of limitations where neither tolling, equitable estoppel, nor the continuing violation theory preserved the applicant's claim.
  • Judgment in favor of client-employer in a case where the plaintiff filed a diversity action against his former employer. Defendant’s motion to dismiss on grounds of res judicata was granted by the U.S. District Court for the Southern District of Indiana. The Seventh Circuit Court of Appeals affirmed judgment in favor of client-employer, based on the Supreme Court’s Colorado River abstention doctrine.
  • Nationwide Agricultural Company

    Represented nationwide agricultural company as exclusive outside counsel for employment and human resources matters, with significant day-to-day counseling and advice. No employment claims have been filed against the client in over eight years.

    Nationwide Manufacturer

    Represented nationwide manufacturer in successful reduction of its workforce across 15 states. No employment claims were filed as a result of the reduction in force.

    Worldwide Beverage Company

    Represented worldwide beverage company in successful restructuring of several divisions and resulting reduction of its workforce. No employment claims were filed as a result of the restructuring and reduction in force.

    Midwest Beverage Company

    Represented midwest beverage company in labor and employment aspects of acquisition of competing business, including negotiation of new employment agreements and restrictive covenants for senior management.

    Worldwide Financial Company

    Represented worldwide financial company in enforcing restrictive covenants against a group of former employees and obtaining favorable settlement agreement avoiding litigation and extending terms of covenants.
  • Nationwide Food Service Provider

    Acts as lead negotiator for nationwide food service provider in numerous collective bargaining negotiations across the U.S. Obtained highly favorable economic terms and operational provisions for facilities with incumbent unions and for first contracts.

    Nationwide Beverage Company

    Represented nationwide beverage company against a union organizing campaign coordinated by the union at two of the client’s Midwest facilities. Both organizing campaigns were defeated by the company. No charges were filed with the NLRB.

    Nationwide Agricultural Company

    Represented nationwide agricultural company in successful campaign to decertify an incumbent union. No charges were filed with the NLRB.

    Nationwide Agricultural Company

    Represented nationwide agricultural company in successfully negotiating a shutdown agreement for a plant closure. No charges were filed with the NLRB.

    Midwest Manufacturer

    Represented Midwest manufacturer against a series of grievances taken to arbitration by the union over economic changes to hours and working conditions. All grievances were denied by the arbitrators.
  • Nationwide Restaurant Chain

    Represented nationwide restaurant chain and several of its managers in jury trial on claims of retaliation under Missouri Human Rights Act. Obtained defense verdict for company and its managers on all counts.

    Worldwide Retailer

    Represented worldwide retailer in age discrimination, sex discrimination, and disability discrimination case. Client obtained early dismissal with prejudice on all counts based on novel defense of judicial estoppel.

    Nationwide Restaurant Chain

    Represented nationwide restaurant chain in sexual harassment, sex discrimination, retaliation and retaliatory harassment case. Client obtained summary judgment on all counts.

    Nationwide Restaurant Chain

    Represented nationwide restaurant chain in trial of ERISA claims. Client obtained judgment in its favor on all counts.

    Wordwide Telecommunications Company

    Represented worldwide telecommunications company in sex discrimination, national origin discrimination and retaliation case. Client obtained summary judgment on all counts. Following appeal by former employee, summary judgment on all counts affirmed by federal court of appeals.

    Worldwide Defense Contractor

    Represented worldwide defense contractor in sex discrimination, age discrimination and retaliation case. Client obtained summary judgment on all counts. Following appeal by former employee, summary judgment on all counts affirmed by federal court of appeals.

    Midwest Beverage Company

    Represented Midwest beverage company in race discrimination and retaliation case. Client obtained early dismissal of all claims based on aggressive discovery and deposition scheduling.
  • Obtained and affirmed summary judgment for employer in faculty case.
  • Obtained and affirmed summary judgment for employer in faculty claim.
  • Obtained and affirmed summary judgment for employer in gender bias suit.
  • Obtained and affirmed summary judgment for employer in TItle VII case.
  • Obtained injunction precluding departing financial advisors from competition.
  • Obtained summary judgment on behalf of client Action Authority, LLC and its owner on claims including conversion, civil conspiracy, computer tampering and theft, copyright infringement and inducement to infringe.
  • Obtained summary judgment on behalf of client in ADA case.
  • Obtained summary judgment on behalf of client in breach of employment agreement and statutory wage claim brought by former employee.
  • Obtained summary judgment on behalf of client in case alleging discrimination, and ERISA violations.
  • Obtained summary judgment on behalf of client in gender, race, age and retaliation claim.
  • Obtained summary judgment on behalf of our client in defense of race discrimination and retaliation claims.
  • On June 19, 2013, the Sixth Circuit Court of Appeals affirmed summary judgment for firm client Faurecia Exhaust Systems, Inc. in a case where 70+ former employees claimed the company had violated the WARN Act and failed to provide the requisite 60-days’ notice prior to a mass layoff. The appeals court agreed with the trial court that the unforeseeable business circumstances exception applied such that Faurecia was not required to provide the advance notice. The court also noted that Faurecia was not even required to provide a conditional notice of the mass layoff as the regulations addressing the WARN Act permit conditional notice but do not require it.
  • On June 22, 2010, Judge Sarah Evans Barker of the U.S. District Court for the Southern District of Indiana granted a motion for summary judgment filed on behalf of firm client Corrections Corporation of America. Plaintiffs were eight nurses and former employees of CCA's jail facility in Indianapolis. Plaintiffs' Third Amended Complaint included 12 counts, alleging they were subject to a racially hostile and unsafe work environment and several other claims and theories of recovery. The Court granted summary judgment as to all Plaintiffs and all claims. Four of the eight Plaintiffs appealed some of the claims. On June 9, 2011, the Seventh Circuit affirmed the district court's order granting summary judgment to CCA as to all claims raised on appeal.
  • Plaintiff, Bonne Beecher, sued client-employer Roche Diagnostics Corporation (Roche) for race discrimination alleging that she had been unlawfully passed over for 27 different promotional opportunities. Beecher 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 moved for - and was granted - summary judgment on the grounds that the record evidence conclusively demonstrated that Beecher 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.
  • Plaintiff, Brian Lampley, sued client-employer Pollution Control Industries of America (PCI), claiming that his termination was due to race discrimination. However, Lampley was terminated because he threatened his supervisor. When Lampley 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, Lampley 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 Lampley'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 rejected Lampley's attempt to claim that he had been treated differently than several other workers who had been disciplined for various reasons, noting that unlike Lampley, none of those individuals had directly threatened their supervisor.
  • Plaintiff, Juliee Bates, sued client-employer Roche Diagnostics Corporation (Roche) for discrimination and retaliation based on her sex and alleged disability, and also claimed violations of the FMLA. Bates 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 also training users and managers on information security projects. She was terminated in early 2011 for poor performance after extensive coaching by her supervisor.

    Roche moved for - and was granted - summary judgment on all of her claims. Bates’ 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 Plaintiff’s ADA discrimination, accommodation and retaliation claims, the court agreed with Roche that Bates 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 Bates’ requested leaves during her employment. Further, the record evidence showed that Bates’ supervisor did not treat employees differently because of their sex, disability or requests for leave. To the contrary, the evidence showed that Bates’ peers shared almost all of her same protected characteristics and her supervisor rated each of them more highly because of their better performance.
  • Plaintiff, Richard Thoennes, sued client-employer Roche Diagnostics Corporation (Roche) for age discrimination based on the Texas Commission on Human Rights Act (TCHRA). Roche prevailed following a four-day jury trial in Dallas, Texas, in which the jury returned a verdict in favor of Roche in all respects.

    Thoennes originally was 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 such as calling 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 Thoennes’ largest managed care account promptly and significantly declined. Thoennes 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. Thoennes was 50 when he was terminated and he claimed that he was fired as a result of his age. Thoennes’ age claim rested on the fact his replacement was younger than him, and that his supervisor used the word “tenure” on a handful of occasions – which Thoennes interpreted to mean “age.”

    At trial, Thoennes 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 Thoennes had produced in discovery confirmed there was a consistent decline during his management of the account. Roche also showed the jury that Thoennes’ 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 Theonnes, who had been in sales with the company for a long time (a sentiment that Thoennes 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 Thoennes’ discharge and ruled in favor of Roche.
  • Proactive Guidance Undermines Former Employee’s ADA Case

    Represented client in obtaining the dismissal of a disability claim under the American with Disabilities Act (ADA). A long-term employee and union member filed an ADA claim against a tool and stamping operation when he was terminated five days after submitting restrictions to the employer. Pete Morse worked with the client to create a checklist of essential job duties associated with his existing job and the other open jobs in the plant. The employer then presented that checklist to the employee and asked which tasks he could or couldn’t perform, with or without an accommodation. The employee indicated that he could only work about 25 percent of the tasks associated with available jobs and signed his name at the bottom confirming that assessment. In response, the company terminated the employee because he – by his own admission – could not perform the essential function of his job (with or without accommodation) or of any of the open/vacant jobs in the company.

    Collective Wage Actions Averted

    In two separate wage/hour audits with “collective action” potential, Pete worked behind the scenes with the client to allow the putative plaintiffs to “defeat themselves.” In a subtle tactic separated in time and substance from the employees’ wage/hour allegations, Pete helped create forms for the employees to complete that assessed their “promotability” and invited them to highlight their accomplishments with the company and describe their job functions. The appeal to vanity worked, and the employees’ own admissions became central to securing favorable resolutions to the employees’ previous allegations that they were non-exempt, exercised little job discretion, etc.

    Value-Added Training in 2007-2008

    As part of his drive to “partner” with his clients, Pete conducted several sessions with clients in 2007 “off the clock” to discuss various labor and employment issues that had arisen during the past year, identify better practices that might have prevented those issues, and outline strategies on how to reduce legal fees (in one case, by more than $1 million). In 2008, Pete already has conducted several sessions introducing “best practices” and legal strategies for clients as they have added new HR staff.
  • Represented client in a multiple plaintiff Title VII action where the court granted the client's Fed. R. Civ. P. 12(c) motion for partial judgment on the pleadings with regard to employees' breach of contract claim because employee handbook contained a clear disclaimer that it was not intended to create a contract. Assisted client in obtaining summary judgment against plaintiff's gender discrimination claims. Section 1927 sanctions were awarded to the client employer against Plaintiffs' counsel.
  • Represented client in motions that were granted to dismiss and compelling arbitration in employment discrimination context.
  • Represented client in motions that were granted to dismiss and compelling arbitration in employment discrimination context.
  • Represented client in motions that were granted to dismiss and compelling arbitration in employment discrimination context.
  • Represented client in obtaining summary judgment in ADA and FMLA matter.
  • Represented client in obtaining summary judgment on claim of reverse-gender discrimination.
  • Represented client in Title VII race claim.
  • Represented client-employer in obtaining summary judgment in a case involving alleged violations of an employee's right to leave for the birth of a child under the Family & Medical Leave Act and retaliatory discharge. This disposition was subsequently affirmed by the United States Court of Appeals for the Seventh Circuit.
  • Represented employer against claims of employment discrimination, retaliation, and constructive discharge.
  • Represented nationwide restaurant chain in reverse sex discrimination case. Client obtained summary judgment on all counts.
  • Represented nationwide restaurant chain in sexual harassment, sex discrimination, retaliation, and retaliatory harassment case. Client obtained summary judgment on all counts.
  • Represented worldwide retailer in age discrimination, sex discrimination, and disability discrimination claims from former employee. Client obtained dismissal with prejudice on all counts based on judicial estoppel grounds.
  • Reversed lower court ruling in a case that involved client-employer gaining access to records in a closed file under the Freedom of Information Act (FOIA).

    In 1982, American Commercial Barge Line (ACBL) filed a Freedom of Information Act (FOIA) request with the National Labor Relations Board (NLRB). The ACBL request sought copies of all statements, advice memoranda, and position letters filed by the Seafarer's International Union or the Seafarer's Appeals Board in a closed unfair labor practice charge matter brought by ACBL against the union. The request was denied by the Regional Director.

    ACBL appealed the decision to the NLRB’s General Counsel, but the appeal was denied. ACBL thereafter brought an FOIA suit in federal district court. The district court granted the NLRB's motion for summary judgment on the grounds that the case was rendered moot by its subsequent disclosure of the requested document. The court held, however, that ACBL was entitled to attorney fees and the Board appealed. On appeal, the Seventh Circuit observed that the FOIA did not automatically award fees to all prevailing FOIA plaintiffs. The court also noted that although the NLRB withheld the records, there was some basis in law for its actions; specifically, the document involved a related investigatory proceeding. In light of the foregoing, the Court found there was no basis for an award of attorney's fees.
  • Secured dismissal of claims brought by plaintiff alleging harassment and other matters.
  • Successfully defended an affirmative action audit on behalf of a central Indiana not-for-profit. The Department of Labor's OFCCP division conducted an audit of the not-for-profit's affirmative action programs based upon the not-for-profit's status as a federal government contractor. Janilyn was brought in mid-audit at the point OFCCP was threatening to issue a number of violations against the central Indiana not-for-profit. Janilyn was able to help persuade OFCCP to allow the not-for-profit to completely restructure and resubmit its affirmative action program to OFCCP during the audit. As part of the audit, the government also issued an initial finding that some of the not-for-profit’s pay practices were discriminatory. Through use of multiple regression analysis, Janilyn was able to establish that the alleged pay disparities were based upon legitimate, non-discriminatory factors. The OFCCP closed the not-for-profit’s audit with a finding of no violations.
  • Summary judgment affirmed for client where the sale of a plant was a sale of business that did not result in an employment loss under the WARN Act.
  • Summary judgment granted in favor of client where defendant responded promptly and decisively to plaintiff's complaint regarding sexual harassment.
  • Summary judgment granted in favor of 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 Arbitrator 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.
  • Summary judgment granted in favor of client-employer in a case involving Title VII multi-employee discrimination claim. Summary judgment in favor of client-employer, Indiana Newspapers, Inc., affirmed by the Seventh Circuit Court of Appeals, in a case alleging Title VII discrimination and related state-law claims. Patterson and Coffey, both former editorial page writers for The Indianapolis Star (The Star), claimed The Star violated Title VII of the Civil Rights Act of 1964 and state law. Specifically, Patterson claimed that The Star discriminated against him because of his religion, race and age; unlawfully retaliated against him for filing a charge of discrimination with the Equal Employment Opportunity Commission (EEOC); and negligently inflicted emotional distress. Coffey claimed that The Star discriminated against her because of her religion; constructively discharged her by creating and maintaining an environment hostile to her religious beliefs; and negligently inflicted emotional distress. Finding that the plaintiffs submitted affidavits that directly contradicted their deposition testimony, and that supporting affidavits from other former employees contained inadmissible evidence, the district court accepted The Star’s evidence that Patterson was discharged for poor performance and that Coffey resigned without being subject to any hostile environment or discrimination. The Seventh Circuit affirmed on all grounds.
  • Summary judgment granted to client on the Title VII national origin/ancestry claim where employee failed to show he was meeting the employer's legitimate expectations or that a similarly situated employee was treated more favorably.
  • Summary judgment granted to client on Title VII religious discrimination claim.
  • Summary judgment 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.

    Peggy Tokheim was employed by Georgia-Pacific. Tokheim 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 Tokheim’s claims were barred under the doctrine of judicial estoppel. Specifically, Tokheim 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 Tokheim’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 Tokheim’s position occurred when the bankruptcy court discharged her debts based on the information provided to it. The district court observed that Tokheim’s 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 Tokheim was bound by her previous representations to the bankruptcy court and was judicially estopped from pursuing an action against Georgia-Pacific.
  • Summary judgment granted to employer client in a case where plaintiff alleged that his termination was a breach of contract and therefore violated § 301 of the Labor-Management Relations Act, 29 U.S.C.S. § 185.

    David L. Beeson began working for Indiana Bell in 1979. Four years after being diagnosed with multiple sclerosis, Beeson realized that his condition would not allow him to work. He then began a medical leave of absence under Indiana Bell's Short Term Disability (STD) policy, which allowed each non-management employee up to fifty-two weeks of disability benefits for a qualifying event. After Beeson exhausted all available STD benefits, Indiana Bell determined that none of its leave policies or provisions in the collective bargaining agreement (CBA) entitled him to continued employment and he was terminated.

    Beeson filed a grievance with his union, but the union determined the contract had not been violated. When the union refused to arbitrate his grievance Beeson sued Indiana Bell for breach of contract; no suit was filed against the union. The district court first found that because Beeson’s breach of contract claim against Indiana Bell was "inextricably interdependent" on proving a breach of duty of fair representation claim against his union (even if the union was not named), the suit constituted a hybrid action under the Labor-Management Relations Act (LMRA). The court then observed that there was no evidence that the union treated other, similar grievances in a preferential manner. In addition, the union's decision not to advance the grievance was in good faith and not arbitrary. The undisputed language in the collective bargaining agreement and the benefits provisions rendered Beeson's grievance futile. Because he could not raise a genuine issue regarding whether the union breached its duty of fair representation, Beeson could not sustain his claim that the employer breached the CBA and violated the LMRA. Accordingly, the district court—adopting the magistrate judge’s recommendation—granted Indiana Bell’s motion for summary judgment.
  • Summary judgment in favor of client (defendant) affirmed by the Seventh Circuit Court of Appeals.

    For over a decade, Anthony J. Suskovich was classified as an independent contractor while working for Anthem/WellPoint (WellPoint) as a computer programmer. Suskovich 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 his death, Suskovich’s estate sought declaratory relief affirming Suskovich 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 he allegedly was denied. The estate further alleged that Suskovich was denied benefits under the Employee Income and Security Act (ERISA), and sought indemnification for Suskovich’s unpaid taxes due to WellPoint and Trasys’ alleged failure to withhold.

    The district court held that Suskovich 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 Suskovich controlled the details of his work; was accountable to WellPoint only for the results of his work; that he had been engaged for specific projects; and that he was never guaranteed that his work would extend beyond limited durations. Finally, the Court observed that Suskovich was issued 1099 forms from both WellPoint and Trasys and never was added to either company’s payroll. 553 F.3d 559, 2009 U.S. App. LEXIS 1148, 45 Employee Benefits Cas. (BNA) 2390, 14 Wage & Hour Cas. 2d (BNA) 705, 157 Lab. Cas. (CCH) P 35533, 157 Lab. Cas. (CCH) P 60745, 103 A.F.T.R.2d (RIA) 573 (7th Cir. Ind. 2009).
  • Summary judgment in favor of client (defendant) in a case where the plaintiff alleged misappropriation of trade secrets under the Uniform Trade Secrets Act. The court dismissed all of the plaintiff’s claims and awarded client (defendant) its attorneys’ fees and costs incurred in defending the case.
  • Summary judgment in favor of client affirmed where employee failed to establish a prima facie case of age discrimination and failed to demonstrate pretext.
  • Summary judgment in favor of client affirmed where employer took prompt remedial action with respect to complaint of sexual harassment.
  • Summary judgment in favor of client-employer granted where plaintiff failed to establish evidence that a former independent contractor engaged by the defendant-client was actually an employee (see affirmance on appeal above).
  • Summary judgment in favor of firm client, Indiana Newspapers, Inc., affirmed by the United States Court of Appeals for the Seventh Circuit, in a case involving Title VII discrimination and related state-law claims.

    Patterson and Coffey, both former editorial page employees of The Indianapolis Star (The Star), claimed The Star violated Title VII of the Civil Rights Act of 1964, and state law. Specifically, Patterson claimed that The Star discriminated against him because of his religion, race and age; unlawfully retaliated against him for filing a charge of discrimination with the Equal Employment Opportunity Commission (EEOC); and negligently inflicted emotional distress. Furthermore, Coffey claimed that The Star discriminated against her because of her religion; constructively discharged her by creating and maintaining difficult working conditions; and negligently inflicted emotional distress.

    Finding that the plaintiffs submitted affidavits that directly contradicted their deposition testimony, and that affidavits from other former employees contained inadmissible evidence, the District Court accepted The Star’s facts and entered judgment, as a matter of law, for the newspaper on all claims (discrimination, retaliation, constructive discharge, and negligent infliction of emotional distress). The Seventh Circuit affirmed on all grounds.
  • The firm assisted a national non-profit social services agency in successfully defending a federal government affirmative action audit. The audit was closed with no findings of violations.
  • The firm was retained to provide advice to this client’s in-house counsel on affirmative action matters. We are currently defending an affirmative action audit by the federal government, on behalf of the client.
  • The Northern District of Indiana granted a motion to dismiss that Mike Palmer and Kyra Clark of the South Bend office of Barnes & Thornburg LLP filed on behalf of the Housing Authority of South Bend. In the motion, Mike and Kyra argued that the Fair Housing Act did not prohibit the plaintiff's post-acquisition claims of discrimination (i.e., discrimination claims that arise after the plaintiff leased her unit from the HASB), but instead is limited to claims of discrimination in the acquisition of the property. However, there is a HUD regulation that explicitly provides for post-acquisition claims of discrimination. Mike and Kyra attacked that regulation, arguing that it is invalid under the Chevron standard because it exceeds the scope of the FHA. The court agreed with the arguments.
  • The Seventh Circuit Court of Appeals affirmed a lower court's ruling in favor of firm client C&D Technologies, Inc. in a case where an employee had alleged he was fired inappropriately for tardiness at work. Former C&D employee Robert Jones filed a lawsuit alleging that C&D had violated the labor statute by firing Jones because he missed a morning of work by going to the doctor’s office to re-up his prescriptions for Xanax and hydrocodone. The appeals judges affirmed a lower court’s dismissal of the suit and confirmed that picking up a prescription refill note from a doctor was not a valid reason to miss work under the Family and Medical Leave Act (FMLA). The appeals judges also noted that Jones clearly had a serious medical condition, but said the FMLA requires that the condition itself either makes an employee unable to work or require treatment that forces them to miss their shift.

    Though Jones had a doctor’s appointment scheduled for that afternoon, he spent his morning picking up an old paycheck and traveling to a separate doctor’s office to get a refill prescription note for his medication. The company said the afternoon was an FMLA-acceptable absence, but that the morning was an unexcused no-show. Jones had already had several attendance violations, which led to his firing shortly thereafter.
  • The Seventh Circuit Court of Appeals affirmed judgment in favor of client-employer, based on the Supreme Court’s Colorado River abstention doctrine.

    Following his termination from AES Corporation, Ingalls filed a law suit in state court alleging breach of an employment contract, failure to pay wages, wrongful termination, and defamation. Shortly after the state court disposed of his wage claim, Ingalls filed another suit in federal court alleging breach of a stock-option contract, common-law fraud, and Indiana securities fraud. Invoking the doctrine of Colorado River abstention, the district court granted AES Corporation’s motion to stay the proceedings pending the outcome of the state court litigation.

    Ingalls subsequently lost his remaining state-court claims. As a result, the federal district court dismissed his second lawsuit as claim-precluded. Ingalls argued on appeal that his federal claims were not precluded because they differed from those brought in state court and could not have been raised there. The Court of Appeals disagreed. To pursue his federal-court theories of liability for contract and fraud, Ingalls would have had to use the same evidence that was required for his state-court contract claims. Since claim preclusion applies when both suits “turn on a shared, central core of evidence,” Ingalls was unable to convince the court to allow his second law suit to move forward.
  • The Seventh Circuit Court of Appeals affirmed the district court's ruling that the plaintiff was not disabled within meaning of Americans with Disabilities Act. The Seventh Circuit Court of Appeals affirmed judgment in favor of client-employer, ruling that the plaintiff was not disabled within meaning of Americans with Disabilities Act.

    Daniel Rooney suffered a back injury shortly after he began working for Koch Air. Five years later he injured it again. As a result, Rooney was limited in his ability to perform some job duties. Unable to reach a satisfactory work arrangement with Koch Air, Rooney resigned. Rooney subsequently sued Koch Air under the Americans with Disability Act (ADA), claiming that Koch Air had discriminated against him and constructively discharged him because of his disability. Rooney also claimed that Koch Air retaliated against him in violation of Indiana law for filing a workers compensation claim. The district court granted Koch Airs motion for summary judgment finding that Rooney had failed to submit evidence demonstrating that a similarly situated nondisabled employee had received more favorable treatment; the pendant state law claim was dismissed without prejudice. Rooney appealed.

    In affirming the district courts decision, the Court of Appeals immediately focused on a fundamental question underlying Rooneys claim: whether he was "disabled" within the meaning of the ADA. The court concluded that Rooney had failed to present sufficient evidence to demonstrate he was disabled because, although his back injuries were indeed limiting, his testimony revealed that he was able to perform a number of tasks central to most peoples lives. According to the Court, "this in itself dooms his claim that he is actually suffering from a disability cognizable under the ADA."
  • The Seventh Circuit Court of Appeals upheld the validity of client's employment arbitration agreement holding that former employee was required to submit her claims to arbitration.

    Appellant, Tonya Baumann, sued client-employer The Finish Line, Inc. (Finish Line) for discrimination based on sex and sexual harassment. Before Finish Line hired Baumann, 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. Baumann'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 Baumann's complaint. Baumann appealed.

    On appeal, Baumann argued that she was not bound by the agreement because she never received a copy of the separate plan document. Baumann 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 Baumann exercised her ability to review it. The Court also held that Baumann failed to present sufficient evidence demonstrating the fact that the plan document's cost-sharing provision would render arbitration prohibitively expensive.
  • The Seventh Circuit Court of Appeals, en banc, vacated a judgment of punitive damages allowed by the district court in a sexual harassment trial. The reversal was based on an evidentiary argument preserved on the client-employer’s behalf during trial.

    Gary Amos worked in Ameritech’s coin center and small business unit. Amos had been the subject of sexual harassment allegations for several years. Following an investigation, the Equal Employment Opportunity Commission instituted litigation against Ameritech for its failure to protect female employees. During the jury trial, the district court excluded critical evidence that Ameritech was not able to terminate Amos sooner based on the collective bargaining agreement with Amos’ union. The jury awarded compensatory and punitive damages to these alleged victims of harassment. On appeal, Ameritech challenged, among other things, the $635,000 punitive damage award.

    The initial three judge panel from the Seventh Circuit held that the district court erred in foreclosing the company’s proposed defense that the collective bargaining agreement excused its failure to discharge Amos sooner and remanded for a new trial. Hearing the case en banc, the Seventh Circuit held that Ameritech was liable for the compensatory damages ($15,000), but vacated and remanded the punitive damages award. The Seventh Circuit noted that Ameritech proposed to argue not only that the collective bargaining agreement limited its options but also that, had it fired Amos and seen the decision reversed by an arbitrator, both Ameritech and its female employees would have been worse off. This argument could have persuaded a reasonable jury that its labor-relations decisions did not evidence malice or reckless disregard of its female employees’ rights. The Court observed that “An employer is entitled to show that things were not as bad as they appeared, and thus to influence the jury's assignment of punitive damages.”
  • This client engaged our firm after an adverse finding by the federal government in an affirmative action audit. We assisted the client in negotiating a conciliation agreement with the federal government. Pursuant to that agreement, periodic reports were required. We have guided the client through that process and the audit has now been successfully closed.
  • This project involved our firm conducting initial due diligence with regard to our client’s interest in developing new business relationships in seven foreign companies. Five members of our firm conducted the initial due diligence in multiple areas, including 1) corporate registration requirements, 2) secondment review, 3) labor and employment requirements and issues, and 4) immigration requirements and issues. Our firm also engaged and worked with local counsel in each country through our TerraLex affiliates.
  • Tony Prather and Peter Tschanz of Barnes & Thornburg LLP's Indianapolis office assisted firm client, Corrections Corporation Of America, in obtaining a defense verdict in a jury trial held before Judge Magnus-Stinson. Plaintiff Nora Teske had alleged that her employment with Corrections Corporation of America was terminated in retaliation for her filing workers' compensation claims; taking leaves of absence pursuant to the FMLA, and because she requested and received accommodations in accordance with the Americans with Disabilities Act.
  • Tony Prather and Peter Tschanz represented firm client Corrections Corporation of America (CCA) in a lawsuit filed by a former CCA employee. The Plaintiff sued CCA in federal court alleging that she was subjected to racial discrimination, a hostile work environment and sexual harassment. By Entry dated Nov. 11, 2013, U.S. District Court Judge Tanya Walton Pratt issued summary judgment rulings in CCA’s favor with respect to all of the Plaintiff’s claims. All claims were subsequently dismissed.
  • Unilaterally discontinuing payments to ees for attending classes; management rights language; legitimate business purpose for decision.
  • Vishakha Banthia 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 Banthia's claims under both the direct and indirect methods of proof, relying heavily on the arguments advanced in Roche's briefs, which demonstrated BAnthia'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 Banthia'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.
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