Case Information
*1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION JOHN SIMS, )
Plaintiff/Counter-Defendant, )
) vs. ) 1:07-cv-338-LJM-JMS )
THE KROGER CO., d/b/a )
CROSSROAD FARMS DAIRY, )
Defendant/Counter-Plaintiff. )
ORDER ON DEFENDANT’S MOTION TO DISMISS
On May 19, 2008, some ten days after this Court granted defendant’s, The Kroger Co., d/b/a Crossroad Farms Dairy (“Kroger”), Motion for Partial Summary Judgment finding against plaintiff, John Sims (“Sims”), on his claims under the Family and Medical Leave Act (“FMLA”), Sims filed a retaliation claim. Sims alleges in his counterclaim that Kroger filed its fraudulent inducement claim solely to retaliate against him for filing his FMLA claim. The parties agree that “[t]o prevail on a claim of retaliation a plaintiff must show: (1) [he] engaged in a statutorily-protected expression; (2) [he] suffered an adverse action by [his] employer; and (3) there is a causal link between the protected expression and the adverse action.” Harper v. Realmark Corp. , No. 4:04-cv-0040-DFH- WGH, 2004 WL 1795392, at *2 (S.D. Ind. July 29, 2004) (citing Dunning v. Simmons Airlines F.3d 863, 869 (7 Cir. 1995)).
The retaliation complained of here is the filing of the counterclaim. The allegation is not that Sims was fired in retaliation for his filing of the law suit. It is not that he was unable to acquire another position because of some post-filing conduct on Kroger’s part. His only complaint is that Kroger filed a counterclaim against him based upon information it learned after his suit was filed.
He filed his own counterclaim only after this Court granted summary judgment in favor of Kroger on Sims’ FMLA case because there was no credible evidence that he had suffered from a serious health condition as defined by the FMLA and the regulations implementing the statute.
It is important to note that the allegations of Kroger’s counterclaim were not asserted as a defense to Sims’ FMLA claims. After McKennon v. Nashville Banner Publishing Co. , 513 U.S. 352 (1995), the law is that after-acquired evidence of a plaintiff’s material misrepresentations on an employment application is relevant on the issue of damages and not on the issue of liability. Id. at 360-62. Defendants are not alleging that Sims’ FMLA case was without merit because of the misrepresentations. Indeed that defense would be unavailing after McKennon
As pointed out by Kroger, the problem with Sims’ counterclaim is that Sims can show no adverse action. It is clear from Herrnreiter v. Chicago Housing Authority , 315 F.3d 742 (7 th Cir.
2002), cert. denied 540 U.S. 984 (2003), that “‘effective retaliation against employment ________________________________ LARRY J. McKINNEY, JUDGE United States District Court Southern District of Indiana discrimination need not take the form of job action.’” Id. at 746 (quoting McDonnell v. Cisneros F.3d 256, 258-59 (7 Cir 1996)). In this case, however, Kroger’s filing of its counterclaim was not in the form of a job action and it did not impact Sims’ employment. At the time Sims filed his retaliation claim, a determination had already been made that he had no FMLA case at all. In other words, this Court has found as a matter of law that he was fired for legitimate reasons; Sims cannot now claim that Kroger’s counterclaim amounted to retaliation for his filing of the suit.
CONCLUSION For the reasons stated herein, defendant’s, The Kroger Co., d/b/a Crossroad Farms Dairy, Motion to Dismiss Sims’ Retaliation Counterclaim is GRANTED
IT IS SO ORDERED this 8 day of August, 2008.
________________________________ LARRY J. McKINNEY, JUDGE United States District Court Southern District of Indiana Electronically distributed to:
Philip J. Gibbons Jr.
GIBBONS JONES, P.C.
pgibbons@gibbonsjones.com
Joseph H. Hogsett
BINGHAM MCHALE, LLP
jhogsett@binghammchale.com
Andrew G. Jones
GIBBONS JONES P.C. ajones@gibbonsjones.com
Christopher R. Taylor
BINGHAM MCHALE LLP
ctaylor@binghammchale.com