Moore v. Park Ctr., Inc., Cause No. 1:10–CV–330.

830 F.Supp.2d 592

Derrick D. MOORE, Plaintiff,

v.PARK CENTER, INC., Defendant.

Cause No. 1:10–CV–330.

United States District Court, N.D. Indiana,Fort Wayne Division.

Nov. 23, 2011.

Christopher C. Myers, Ilene M. Smith, Christopher C. Myers & Associates, Fort Wayne, IN, for Plaintiff.

Michael H. Michmerhuizen, Thomas M. Kimbrough, Jeremy N. Gayed, Barrett & McNagny LLP, Fort Wayne, IN, for Defendant.

OPINION AND ORDER

ROGER B. COSBEY, United States Magistrate Judge.

Plaintiff Derrick Moore brings this suit against his former employer, Park Center, Inc., asserting that it terminated him in retaliation and in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e–3, for reporting an incident of sexual harassment.¹ Park Center has moved for summary judgment on all claims (Docket # 19), and the motion is now fully briefed. (Docket # 20, 22, 36–38.)

For the following reasons, Park Center's motion for summary judgment will be GRANTED.

I. FACTUAL BACKGROUND ²

Moore, a former special education teacher, began his employment with Park Center, a behavioral health organization in Fort Wayne, Indiana, in February 2008 as a Case Manager in a group home for females with substance abuse problems or mental illness.³ (Moore Dep. 28, 42; Moore Aff. ¶¶ 3, 4.) This was Moore's second stint as a case manager, as he served in that position for another behavioral health organization from 2006 to 2008. (Moore Aff. ¶ 4.)

On January 12, 2009, Moore was promoted to Case Manager II in the adolescent day treatment area of the Family Education Center of Park Center. (Moore Dep. 49; Hartley Aff. ¶ 3; Wallace Aff. ¶ 4.) Moore was supervised by Linda Hartley, Manager of the Family Education Center, who was located at a different work site. (Moore Dep. 49, 113; Hartley Aff. ¶¶ 2–3.) In the adolescent day treatment area, Moore worked with a “treatment team” consisting of four females: Melinda Welling, another Case Manager II; Danielle Wardell, Psy.D., a psychologist; Tabitha Carlson, Psy.D., a post-doctoral practitioner; and Vanessa Jones–Premer, an intern. (Moore Dep. 59–60.) Moore shared an office with Welling, whom he claims repeatedly spoke to him about her personal sexual interests, preferences, and activity. (Moore Aff. ¶ 6.)

On January 23, 2009, Carlson, who had covered for Wardell the week before while she was on vacation, sent an e-mail to Wardell listing a number of concerns that she had about Moore. (Carlson Aff. ¶ 7, Ex. 1.) These included, among other things, that he was taking breaks, eating full meals during school sessions, confronting students in a “lecture mode,” watching television, and that his cell phone was ringing during group sessions. (Carlson Aff. ¶ 7, Ex. 1.)

On or about January 29, 2009, Moore conducted a group session at which Welling, Wardell, and four or five students were in attendance. (Moore Dep. 58.) Moore contends that, during the session, Welling reached for a notebook that Moore was holding on his lap, and, in doing so, touched and groped his penis. (Moore Dep. 58; Moore Aff. ¶ 5.) This caused Moore, in surprise and shock, to sit up straight in his chair. (Moore Dep. 58–59; Moore Aff. ¶ 5.) Welling then laughed and walked away. (Moore Dep. 59; Moore Aff. ¶ 5.) Moore states that because of their location in the room, no one else could see the incident. (Moore Dep. 58.)

After the session, Moore approached Welling and asked her whether she realized that she had touched him. (Moore Dep. 59.) According to Moore, Welling then answered “yes.” (Moore Dep. 59.) Moore, who felt that the treatment team had “worked great together” before the incident, contends that after this exchange, he felt “the atmosphere of the office” changed, his team members started whispering about him and staring at him, and he was “shut out of the treatment team.” ⁴ (Moore Dep. 59, 65, 92; Moore Aff. ¶ 7.)

About a week later, on February 6, 2009, Carlson sent another e-mail, this time to Hartley, expressing numerous concerns about Moore's interaction with clients and staff. (Hartley Aff. ¶ 4, Ex. 1; Carlson Aff. ¶ 8.) That same day, Wardell conveyed similar concerns about Moore's performance to Hartley. (Hartley Aff. ¶ 5, Ex. 2; Wardell Aff. ¶ 5, Ex. 1.) Their writings identified a lengthy list of performance deficiencies, including Moore's receiving calls, texting, and eating during group sessions with students; engaging in inappropriate confrontations and using a “lecture mode” with students; a lack of initiative and professionalism; tardiness; argumentative, defensive, and abrasive behavior; and that, due to the foregoing traits, at least two students had requested not to work with him. (Hartley Aff. Exs. 1, 2.)

After another week, on February 13, 2009, Moore called Marsha Wallace, Park Center's human resources manager, stating that he needed to discuss an allegation of sexual harassment with her. (Wallace Aff. ¶ 5.) They scheduled a meeting for February 17, 2009. (Wallace Aff. ¶ 5.) Moore, however, failed to appear for the meeting. (Wallace Aff. ¶ 5.) Two days later, on February 19, Moore called Wallace again, apologizing for missing the meeting and explaining that he had been ill. (Wallace Aff. ¶ 6.) They rescheduled the meeting for the next day, February 20 at 3:30 p.m.; Moore, however, again failed to appear for the meeting, and Wallace left for the day at 4:00 p.m. (Wallace Aff. ¶ 6.) The next workday, Moore left Wallace a voicemail, stating that he had been tied up at the Family Education Center until 4:30 p.m.⁵ (Wallace Aff. ¶ 7.) Moore never contacted Wallace to schedule another meeting. (Wallace Aff. ¶ 8.)

At some point prior to February 23, 2009, Moore called Hartley to schedule a meeting with her to discuss certain “problems that [he was] having over at the office.” (Moore Dep. 51.) He did not disclose to her that the “problems” involved sexual harassment allegations.⁶ (Moore Dep. 51–52.) From Moore's perspective, however, he requested the meeting with Hartley so that he could make his “initial report of discrimination.” (Moore Dep. 51, 68.)

On February 23, 2009, Moore met with Hartley, Wardell, and Jeff Stachera, the Clinical Coordinator for the Family Education Center.⁷ (Moore Dep. 49–51; Hartley Aff. ¶ 6; Wardell Aff. ¶ 6: Stachera Aff. ¶ 4.) Moore did not speak during the forty-five minute meeting because he did not feel comfortable discussing the sexual harassment allegations in front of Stachera or Wardell, who was a close friend of Welling's. (Moore Dep. 51–52.) Instead, the meeting consisted of Hartley identifying Moore's various purported performance deficiencies—including, an unwillingness to work with others and an abrasive attitude—and how he needed to improve. (Moore Dep. 51; Hartley Aff. ¶ 7; Wardell Aff. ¶ 6; Stachera Aff. ¶ 5.)

At the close of the meeting, Moore approached Hartley and reported the January 29, 2009, incident—that is, that Welling had touched his penis when she reached for a notebook that he was holding in his lap during a meeting. (Hartley Aff. ¶ 8; Moore Dep. 58; Moore Aff. ¶ 8.) Hartley questioned Moore about whether he was sure he wanted to report it, suggesting that it could further hinder his “chemistry with the team.” ⁸ (Moore Aff. ¶ 13(e).) Nevertheless, Hartley called Wallace in human resources that same day and reported the allegations. (Hartley Aff. ¶¶ 9–10; Wallace Aff. ¶ 9.)

Later that same day, Moore sent an e-mail to Wallace in human resources detailing his allegations against Welling. (Wallace Aff. ¶ 10; Moore Aff. ¶ 8.) Wallace responded to Moore that she would investigate the matter, and she immediately did so. (Wallace Aff. ¶¶ 10, 11.) Wallace and Stachera jointly conducted separate interviews with each of the “treatment team” members other than Moore—that is, Wardell, Carlson, Welling, and Jones–Premer—and Daniel Raber, a security officer who provided security for the adolescent day treatment program. (Wallace Aff. ¶¶ 12, 13; Stachera Aff. ¶ 7.)

During her interview, Welling represented that although she and Moore did share an office and talked about their lives, including divorce and interracial relationships, she never “made a pass at” or was aggressive toward him. (Welling Aff. ¶ 4; Wallace Aff. ¶¶ 12, 13, Ex. 2.) Welling admitted that she reached for a binder on Moore's lap during the January 29th meeting, but was unaware that she had touched his penis. (Welling Aff. ¶ 5.) She recalled that, after reaching for the binder, she immediately realized that she had invaded Moore's personal space and therefore apologized to him; she represented that she apologized again when Moore later asked her about the incident. (Welling Aff. ¶¶ 5, 6.) Welling stated that she did not discuss the incident with anyone else and, until questioned by Wallace, considered it a “non-issue.” (Welling Aff. ¶ 7.)

As to the other interviewees, Carlson vaguely recalled Welling reaching for a binder from Moore, taking it off his lap, and then her stating that she did not mean to invade his personal space. (Carlson Aff. ¶ 5.) Wardell did not specifically recall the January 29th meeting, but she listed Moore's various performance problems during her interview with Wallace. (Wardell ¶¶ 7, 8.) Raber reported that he overheard many conversations between Moore and Welling, but the only personal discussions he overheard were about divorce, as both Moore and Welling were divorced individuals. (Raber Aff. ¶ 4.) Jones–Premer never noticed anything inappropriate between Moore and Welling, but did report that Moore complained about other team members, was very argumentative, and accused other staff members of being aggressive or inappropriate. (Jones–Premer Aff. ¶¶ 4–6.)

Wallace and Stachera concluded that the investigation did not substantiate Moore's allegations of sexual harassment, but did reveal, however, that he had performance problems, including tardiness, an unwillingness to listen and accept direction, and being critical of other team members. (Wallace ...