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Driend v. Itron Inc.

United States District Court, E.D. Kentucky, Central Division

September 1, 2017

NANCY DRIEND, Plaintiff,
v.
ITRON INC., Defendant.

          MEMORANDUM OPINION & ORDER

          Gregory F. Van Tateiihove, United States District Judge.

         This matter is before the Court on Defendant's Motion for Summary Judgment. [R. 12.] Nancy Driend has alleged the Itron terminated her employment due to her age in violation of Federal and State law. However, Driend has not established a prima facie case of age discrimination and, for the reasons stated below, this court will GRANT summary judgment in favor of the Defendant.

         I

         Nancy Driend was a Sales Order Manager at a manufacturing facility of Defendant company, Itron, Inc., a Washington state corporation, located in Owenton, Kentucky. [R. 1 at ¶ 4.] Driend had been employed by Itron's predecessor, Sprague Textron in Bridgeport, Connecticut since February 12, 1979, she was 32 years old at the time she was hired. [Id. at ¶ 6.] She moved to Owenton, Kentucky in 1989 while working with another Itron predecessor, Schlumberger, Inc., which Itron purchased in 2009. [Id. ¶¶ 7-8.] On January 30, 2015, after 35 years with the company and its predecessors, Nancy was terminated in a meeting by Human Resources Manager Tim Shelburne and Logistics Manager Melissa David. [Id. at ¶ 1, 11.] At the time of her termination Driend was 68 years old. [Id. at ¶¶ 3, 8.]

         David was Driend's supervisor at the time of her termination. Driend supervised four Production Schedulers, Bethany Fogle, Angela Duncan, Steve Dodson, and Valerie Kenner, all of whom Driend describes as substantially younger than her. [R. 12 at 4; R. 19-1 at ¶ 10(a).] In March or April of 2014, David observed Fogle “crying and upset at her desk, ” when David inquired as to why she was upset Fogle explained that Driend had yelled at her and “pointed her finger in a threatening manner.” [R. 12 at 5; R. 12-2 at ¶ 2; R. 12-3 at ¶¶ 3-4.] Specifically, Fogle said that Driend was “micromanaging” and yelling at her for no reason and “acted like [she] did not know how to do [her] job.” [R. 12-3 at ¶ 4.] David informed Driend that Fogle was upset and stated that she explained to Driend that her communication style was not working with Fogle and she needed to adjust it. [R. 12-2 at ¶ 3.] Driend, however, stated that David told her that Fogle came into her (David's) office crying stating that Driend “was picking on her.” [R. 19-1 at ¶ 4.] She stated that she told David that this was the first time someone had complained about her in this manner. [Id.]

         According to David, Driend appeared to be upset about how Fogle reacted and that she had reported her behavior to David. [R. 12 at 5; R. 12-2 at ¶ 3.] Fogle reported that Driend called her into her office on at least two occasions to ask why “she [Fogle] threw her under the bus, ” and to tell her that she was to report to her (Driend) if Fogle had a problem rather than go above her to David. [R. 12-3 at ¶¶ 5-6.] These actions, Fogle stated, made her feel intimidated. [Id.] Driend contends that when she called Fogle into her office to ask what she had done, Fogle replied “nothing, I was having a melt down and took it out on you.” [R. 19-1 at ¶ 4.] Driend then asserted that she told Fogle that she had an “open door policy” and that if there was a problem “[they] could sit down together . . . and hopefully resolve the problem.” [Id.] In her deposition, Driend stated that she felt Fogle reporting her complaints to David were inappropriate because “she should have come to [Driend] first.” [R. 12 at 5-6; Pl. Depo. at 46-49.]

         In November of 2014, David asked Fogle how things were going to which Fogle replied “not well.” [R. 12-2 at ¶ 4.] Fogle explained that she did not mention anything sooner because of the way Driend treated her after the initial report, and was “afraid her work environment would get worse.” [R. 12-3 at ¶ 14.] Fogle described incidents of Driend embarrassing her by “yelling” at her in front of her colleagues, and contacted her about time sensitive projects when she knew Fogle was not at work or out on approved sick leave. [Id. at ¶¶ 8-13; R. 12-2 at ¶¶ 5-8.] Almost all the Itron employee Declarations verbatim reported that Driend “reprimanded [Fogle] in a way that made her feel terrible.” [R. 12-1 at ¶ 4; R. 12-2 at ¶ 5; R. 12-3 at 13; R. 12 at ¶ 7.]

         David also stated that she met with two of Driend's other subordinates, Valerie Kenner and Steve Dodson who were reluctant to share information with David and did not give Declarations. [R. 12-2 at ¶ 13; R. 12-1 at ¶ 3.] According to David, Ms. Kenner stated that she “was not afraid to stand up to Ms. Driend” and Mr. Dodson stated that he just let Driend's behavior “roll off his back.” [Id.; see also, Exhibit C.] Neither Ms. Kenner nor Mr. Dodson reported specific instances of unprofessional or intimidating behavior from Driend. [Id.]

         Another of Driend's supervisees and close friend to Bethany Fogle and Tim Shelburne, Angela Duncan, gave a Declaration describing Driend's behavior towards her as well. [12-2 at ¶ 11; R. 12-4.] In a December, 2014, meeting with David, Duncan reported behavior similar to that which was experienced by Fogle. [R. 12-2 at ¶ 11.] Duncan stated that Driend would contact her repeatedly when she was on approved sick leave in ways which Duncan described as “inappropriate.” [R. 12-4 at ¶¶ 3-5.] She reported that Driend told her, “with a raised voice [and] pointing her finger, ” on several occasions “no more sickness in 2015.” [Id. at ¶¶ 6-8.] Both David and Fogle corroborated this. [See R. 12-2 at ¶ 8; R. 12-3 at ¶ 11.]

         In December of 2014, David informed Human Resources Manager, Tim Shelburne, of the complaints from Fogle and he and David began an investigation into the matter. [R. 12-1 at ¶¶ 2-3.] He stated that he also conferred with Itron's IT department. [Id. at ¶ 3.] He seemingly confirmed the allegations against Driend by speaking with Fogle and Duncan. [Id. at ¶¶ 4-9; R. 12-4.]

         Shelburne stated that he and David were particularly concerned with Driend's instructions to both Fogle and Duncan that they were “required to follow the chain of command, ” which he said essentially prohibited the women from reporting their complaints to anyone besides Driend. [Id. at ¶ 10.] Driend testified in her deposition that she thought Fogle should have come to her first and that she “has always been taught to follow the chain of command.” [R. 12 at 5; Pl. Depo. at 46-49.] Driend did not admit to any poor treatment of Fogle or Duncan.

         Shelburne also spoke with the Itron's IT department during the investigation and discovered that Driend was falsifying documents by entering or changing work orders using other employees' profiles. [R. 12-1 at ¶ 13.] All of the Itron employees stated that Driend's actions caused “confusion and additional work.” [Id.; 12-2 at ¶ 14; 12-3 at ¶ 12; 12-4 at ¶ 9.] Driend admitted that she booked sales orders on behalf of other employees. [12-1 at ¶ 17; R. 12-2 at ¶ 17; R. 19-1 at ¶ 59.]

         After the investigation, which Shelburne stated took over two months, he concluded that Driend had “engaged in retaliatory, threatening and unprofessional behavior” towards her subordinates. [R. 12-1 at ¶ 14.] Shelburne stated that this behavior violated Itron's Respect and Professionalism in the Workplace Policy, Code of Conduct, and Employment Conduct Policy. [Id.] Shelburne needed to obtain approval from Itron's corporate HR and legal team before firing Driend, which he eventually received. [Id. at ¶ 15; 12-2 at ¶ 18; R. 12 at 10.] In the meantime, David proceeded with Driend's previously scheduled annual performance review, which was conducted on January 29, 2015. [R. 12-1 at ¶16; R. 12-2 at ¶ 15.]

         During the performance review, David ranked Driend “Below Average” in the Leadership/Talent Management category and verbally mentioned her communication style and body language, and that she “needed to work on [it].” [R. 19-1 at ¶¶ 34-36; R. 12 at 10; R. 12-2 at ¶ 15.] The remaining reviews were favorable for Driend. [R. 19-1 at ¶¶ 44-49.] Driend told David that she did not agree with the one negative statement and wanted to discuss it with Personnel, to which David responded that she would go to Shelburne and get back to her. [Id. at ¶ 50.] Driend also wrote down her comments on her Review, which she saved in her computer, but did not sign or send. [Id. at ¶¶ 51-52.]

         The following day, January 30, 2015, at a meeting with Shelburne and David, Driend was terminated. [R. 12 at 10.] Shelburne stated that her age had nothing to do with his decision. [Id.; R. 12-1 at ¶ 18.] Instead, he explained that after he conducted his investigation, he had a “reasonable good-faith basis” to believe that Driend had engaged in certain misconduct that was severe enough to justify termination. [R. 12-1 at ¶ 18.] Following her termination, Driend's job duties were ...


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