Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:09-cv-414-TWP-Tanya Walton Pratt, Judge.
The opinion of the court was delivered by: Tinder, Circuit Judge.
Before FLAUM, EVANS, and TINDER, Circuit Judges.
Aaron Smeigh brings this diversity suit against his former employer, Johns Manville (JM), for retaliatory discharge and civil conversion under Indiana law. He alleges that JM wrongfully terminated his employment for filing a workers' compensation claim and unlawfully retained his personal property after his termination. JM moved for summary judgment on Smeigh's claims and the district court granted the motion. Smeigh appeals.
We affirm. Smeigh has not presented sufficient evidence upon which a reasonable jury could conclude that he was fired in retaliation for filing workers' compensation. Although he was terminated shortly after his workplace injury, the evidence shows that JM terminated him for his post-accident statement that he might not pass a drug test (he later passed the drug test) and subsequent refusal to sign an agreement presented by JM requiring him to undergo counseling and random drug testing (at Smeigh's expense) to retain his job. Smeigh made no showing that JM's proffered reason for terminating him was a lie to cover up retaliation.
Smeigh similarly has not presented evidence that JM knowingly exerted unauthorized control over his property. It was company protocol after termination to sort through an employee's belongings to separate personal property from company property. Smeigh didn't object when Bernice Wilson, a JM employee and union secretary, indicated she would clean out his locker and temporarily take possession of his belongings. His property (tools) was then stolen from Wilson's office. Smeigh, however, never informed JM that Wilson still had possession of his tools or that he objected to her temporary possession of them. He waived any claim to vicarious liability and without providing some evidence that JM had the requisite mens rea, Smeigh's claim fails as a matter of law.
Smeigh started working for JM in 1994 and throughout his employment
belonged to a union. Smeigh was an excellent, reliable, and tireless
worker. He was considered
knowledgeable, had a spotless employment record, and
would often work overtime hours-50 to 60 hours a week. On September
20, 2008, Smeigh suffered a workplace injury-he severed the tip of his
finger while moving a fiberizer cart. While waiting for an ambulance
in the parking lot, he spoke to his direct supervisor, Bill Seamans.
JM enforced a policy that required workers injured on the job to
submit to drug testing. Smeigh testified as follows:
Bill asked me if I would have any problems passing a drug test. And I told him I should not have any problems passing a drug test, because I do not use drugs. And I said if by any chance that I was to come up inconclusive or positive, it's not because I was on any drugs. And he asked me what I meant by that. And I told him about a week prior I had went into a room where some pot had been smoked. And I did not know if it would show up in my system as a positive result as, you know, secondhand breathing.
Acting plant manager Matt Weber arrived on the scene as the ambulance took Smeigh to the hospital. Seamans explained to Weber the nature of the injury and told Weber that Smeigh might potentially fail a drug test. Weber did not talk to Seamans about the incident after having this conversation.
Weber went to the hospital with Smeigh. The parties dispute the content of their conversation at the hospital. Smeigh claims they did not talk about marijuana or drug use. Weber claims that Smeigh told him that he (Smeigh) had smoked marijuana over Labor Day weekend. Because this case comes to us on JM' s motion for summary judgment, we take the facts in the light most favorable to Smeigh and assume that Smeigh never admitted to smoking marijuana. Smeigh took a drug screen at the hospital that came back negative. He had surgery a few days later and after the surgery, Weber visited Smeigh and requested that he go into work that afternoon. Upon the advice of his doctors, Smeigh declined. Smeigh didn't discuss workers' compensation with JM. Instead, JM took the initiative and filed for workers' compensation on Smeigh's behalf.
Despite Smeigh's negative drug results, Weber decided to investigate whether Smeigh's "admission" was a violation of JM's substance abuse policy. The relevant policy in effect stated: *fn1
[T]he use, sale, possession, purchase or transfer of illegal drugs while on or off the job is prohibited and will not be tolerated. The off-the-job use of alcohol or drugs in any manner that adversely affects job performance will also not be tolerated. Violation of this policy will result in disciplinary measures against the offender and may result in termination of employment.
. . . If an employee voluntarily comes forward and identifies a substance abuse problem prior to an investigation commenced by the company, employee assistance will be provided on a one-time basis with no impact on job status . . . .
Weber contacted JM's Human Resource Manager Gail Threet and she determined that Smeigh had breached the substance abuse policy based on what Weber told her. She attested: "From my conversation with Weber, I understood, while waiting for the ambulance, Smeigh told his direct supervisor [the he] would not pass a drug test. I further understood Smeigh discussed his use of marijuana with Weber while Weber was at the hospital after the accident." Threet concluded that "Smeigh had made an involuntary admission of illegal drug use and violated JM's Substance Abuse Policy."
JM decided not to terminate Smeigh as long as he signed a Stipulation of Understanding. Weber met with union representatives to discuss the Stipulation. On September 24 (four days after his injury), Smeigh attended a meeting with JM management and union ...