Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 1 of 26

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Patrick F. O’Leary

Goshen, Indiana

ATTORNEYS FOR APPELLEE

Lyle R. Hardman

Patricia A. Mastagh

Hunt Suedhoff Kalamaros LLP

South Bend, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Jan Van Daele,

Appellant-Plaintiff,

v.

Concord Community School 

Corporation,

Appellee-Defendant.

March 8, 2016

Court of Appeals Case No.

20A03-1509-PL-1539

Appeal from the Elkhart Superior 

Court

The Honorable Gretchen S. Lund, 

Judge

Trial Court Cause No.

20D04-1307-PL-172

Bradford, Judge.

Case Summary
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 2 of 26

[1] On April 19, 2011, Appellant-Plaintiff Jan Van Daele filed a worker’s 

compensation claim after injuring her shoulder during the course of her 

employment as a bus driver for Appellee-Defendant Concord Community 

School Corporation (“Concord”). On November 21, 2011, Van Daele’s doctors 

released her to return to work, with certain limitations. Concord did not 

require Van Daele to return to work at this time. Instead, Concord permitted 

Van Daele to remain off of work and to continue to receive worker’s 

compensation benefits while receiving additional treatment for her work-related 

injury. 

[2] On March 12, 2012, Van Daele’s doctors determined that Van Daele’s 

condition had improved to the point that she should return to work 

immediately, again with certain limitations. Three days later, on March 15, 

2012, Concord offered Van Daele a temporary transitional position which took 

into account the limitations set by Van Daele’s doctors. At this time, Concord 

notified Van Daele that because her doctors had indicated that her condition 

had improved to the point where she should return to work, her worker’s 

compensation benefits would cease if she did not accept the offered temporary 

transitional position. Van Daele ultimately decided to turn down the 

temporary transitional position. 

[3] After Van Daele turned down the temporary transitional position, she was 

notified by Concord on April 18, 2012, that in light of her refusal to return to 

work, she could either resign from her employment or Concord would 

terminate her employment. Van Daele did not resign. On May 3, 2012, 
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 3 of 26

Concord sent Van Daele a letter notifying her that her employment would be 

terminated. The termination of Van Daele’s employment was subsequently 

approved by the school board on May 7, 2012.

[4] On July 1, 2013, Van Daele filed the underlying lawsuit, claiming that Concord 

wrongfully terminated her employment in retaliation for her act of filing a 

worker’s compensation claim. On July 10, 2015, the trial court granted 

summary judgment in favor of Concord. Van Daele now challenges the trial 

court’s award of summary judgment in favor of Concord. In doing so, Van 

Daele claims that issues of material fact remain as to whether Concord’s stated 

reason for the termination of her employment, i.e., that she had refused to 

return to work after having been released by her doctors to do so, was pretext. 

Concluding that all reasonable inferences from the designated evidence indicate 

that Van Daele’s employment was not terminated solely because she filed a 

worker’s compensation claim, we affirm.

Facts and Procedural History

[5] At all times relevant to this appeal, Van Daele was employed as a bus driver for 

Concord. On April 1, 2011, Van Daele injured her shoulder while operating 

the brake on her bus. She reported the injury to Concord and filed a worker’s 

compensation claim on April 19, 2011. Van Daele then began receiving 

workers compensation benefits, including medical treatment for her shoulder. 

Van Daele underwent surgery to repair damage to her right shoulder on 

November 9, 2011. 
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 4 of 26

[6] On November 21, 2011, Van Daele’s doctors released her to return to work, 

with certain limitations. Concord did not require Van Daele to return to work 

at this time. Instead, Concord permitted Van Daele to remain off of work and 

to continue to receive worker’s compensation benefits while receiving 

additional treatment for her work-related injury. 

[7] On March 12, 2012, Van Daele’s doctors again determined that Van Daele’s 

condition had improved to the point that she should return to work 

immediately, again with certain limitations. Three days later, on March 15, 

2012, Van Daele met with her direct supervisor, Rich Matteson, who offered 

Van Daele a temporary transitional position as a door receptionist which took 

into account the limitations set by Van Daele’s doctors. At this time, Concord 

notified Van Daele that because her doctors had indicated that she should 

return to work, her worker’s compensation benefits would cease if she did not 

accept the offered temporary transitional position. Matteson sent Van Daele a 

follow-up letter on March 16, 2012, in which he again set forth the specific 

duties associated with the offered temporary transitional position and warned 

Van Daele that according to Concord’s insurance provider, her worker’s 

compensation benefits would cease if she did not accept the temporary 

transitional position and return to work. Van Daele ultimately decided to turn 

down the temporary transitional position. As a result, her worker’s 

compensation benefits were terminated on March 29, 2012. 

[8] Concord Assistant Superintendent Tim Tahara notified Van Daele on April 18, 

2012, that in light of her refusal to return to work after having been released by 
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 5 of 26

her doctors to do so, she could either resign from her employment or Concord 

would terminate her employment. Van Daele did not resign, and on May 3, 

2012, Tahara, on behalf of Concord, sent Van Daele a letter informing her that 

in light of her continuing inability to perform her essential job functions coupled 

with her refusal to accept the temporary transitional position and return to work 

after having be released to do so by her doctors, her employment would be 

terminated. Van Daele’s employment was subsequently terminated during a 

May 7, 2012 school board meeting. Van Daele was officially notified of the 

termination of her employment in a letter sent by Concord Superintendent 

Wayne Stubbs on May 10, 2012.

[9] On July 1, 2013, Van Daele filed the underlying lawsuit, claiming that Concord 

wrongfully terminated her employment in retaliation for her act of filing a 

worker’s compensation claim. On December 24, 2014, Concord filed a motion 

for summary judgment. The trial court subsequently granted a request for an 

extension of time to respond to Concord’s motion for summary judgment. On 

February 4, 2015, Van Daele filed a motion to strike certain evidence 

designated by Concord in support of its motion for summary judgment. 

Specifically, Van Daele sought to strike Concord’s answers to certain 

interrogatories. The trial court denied this motion on March 24, 2015, and 

ordered Van Daele to respond to Concord’s motion for summary judgment no 

later than April 27, 2015.

[10] Van Daele filed a motion to reconsider its motion to strike on April 2, 2015. 

The trial court held a hearing on this motion on April 16, 2015, at which time 
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 6 of 26

counsel for Van Daele admitted that he had intentionally not informed counsel 

for Concord of the alleged deficiencies in the challenged answers as a matter of 

trial strategy. The trial court denied Van Daele’s motion to reconsider, ruled 

that Concord had timely and properly supplemented its responses to the 

challenged interrogatories, and set a May 28, 2015 hearing on Concord’s 

motion for summary judgment. Van Daele responded to Concord’s motion for 

summary judgment on April 27, 2015. On May 11, 2015, Concord filed its 

reply to Van Daele’s response to its motion for summary judgment.

[11] Minutes before the May 28, 2015 hearing on Concord’s motion for summary 

judgment, apparently without prior notice to Concord, Van Daele filed a 

second motion to strike portions of Concord’s designated evidence. The trial 

court heard arguments from the parties regarding Concord’s motion for 

summary judgment and gave Concord until June 15, 2015 to respond to Van 

Daele’s second motion to strike. Concord filed its response to this motion on 

June 3, 2015. 

[12] On July 10, 2015, the trial court issued an order denying Van Daele’s second 

motion to strike and granting summary judgment in favor of Concord. Van 

Daele then filed a motion to correct error, which was subsequently denied by 

the trial court. This appeal follows.

Discussion and Decision
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 7 of 26

[13] Van Daele contends that the trial court erred in granting summary judgment in 

favor of Concord. Our standard of review for a trial court’s grant or denial of a 

motion for summary judgment is well-settled. Purdy v. Wright Tree Serv., Inc., 

835 N.E.2d 209, 212 (Ind. Ct. App. 2005), trans. denied. The purpose of 

summary judgment is to end litigation where no factual dispute exists and 

which may be determined as a matter of law. Powdertech, Inc. v. Joganic, 776 

N.E.2d 1251, 1255 (Ind. Ct. App. 2002). Summary judgment is appropriate 

only where there is no genuine issue of material fact and the moving party is 

entitled to judgment as a matter of law. Purdy, 835 N.E.2d at 212. The party 

moving for summary judgment has the burden of showing that it is entitled to 

summary judgment. Powdertech, 776 N.E.2d at 1256. Appellate review of a 

summary judgment motion is limited to those materials designated to the trial 

court. Purdy, 835 N.E.2d at 212. We do not reweigh the designated evidence; 

rather, all facts and reasonable inferences drawn therefrom are construed in 

favor of the nonmovant. Id. 

[14] The party appealing the denial of a motion for summary judgment has the 

burden of persuading the court on appeal that the trial court’s ruling was 

improper. Powdertech, 776 N.E.2d at 1256. A grant of summary judgment may 

be affirmed upon any theory supported by the designated evidence. Purdy, 835 

N.E.2d at 212. Further, although rulings on motions to correct error are 

usually reviewable under an abuse of discretion standard, we review a case de 

novo when the issue on appeal is purely a question of law. Eagle Aircraft, Inc. v. 
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 8 of 26

Trojnar, 983 N.E.2d 648, 657 (Ind. Ct. App. 2013) (citing Ind. Bureau of Motor 

Vehicles v. Charles, 919 N.E.2d 114, 116 (Ind. Ct. App. 2009)). 

A. Claims of Retaliation Following Termination of 

Employment

[15] In general, an employment contract of indefinite duration is 

presumptively terminable at the will of either party. Pepkowski v. 

Life of Ind. Ins. Co., 535 N.E.2d 1164, 1168 (Ind. 1989). However, 

in Frampton v. Central Ind. Gas Co., 260 Ind. 249, 297 N.E.2d 425 

(1973), our supreme court created an exception to the 

employment-at-will doctrine when an employee was discharged 

for filing a worker’s compensation claim. The Frampton court 

stated that when an employee is discharged solely for exercising a 

statutorily conferred right, an exception to the general rule is 

recognized, and a cause of action exists in the employee as a 

result of the retaliatory discharge. Id. at 253, 297 N.E.2d at 428. 

Powdertech, 776 N.E.2d at 1261.

[16] “[A] plaintiff bringing a retaliation claim must first prove, by a preponderance 

of the evidence, a prima facie case of discrimination.” Id. at 1262 (citing Dale v. 

J.G. Bowers, Inc., 709 N.E.2d 366, 370 n. 3 (Ind. Ct. App. 1999)). “Then, the 

burden shifts to the employer to articulate a legitimate, nondiscriminatory 

reason for discharge.” Id. (citing Dale, 709 N.E.2d at 370 n. 3). “If the 

employer carries that burden, then the employee has the opportunity to prove, 

again by a preponderance of the evidence, that the reason offered by the 

employer is a pretext.” Id. (citing Dale, 709 N.E.2d at 370 n. 3; Fuller v. Allison 

Gas Turbine Div., 670 N.E.2d 64, 68 (Ind. Ct. App. 1996)). “In order to be 

successful on a claim for retaliatory discharge, a plaintiff must demonstrate that 
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 9 of 26

[her] discharge was solely in retaliation for the exercise of” the statutory right to 

file a worker’s compensation claim. Purdy, 835 N.E.2d at 212 (emphasis 

added). “We have previously explained that the word ‘solely’ means only that 

any and all reasons for the discharge must be unlawful to sustain the claim for 

retaliatory discharge.” Whirlpool Corp. v. Vanderburgh Cty.-City of Evansville 

Human Relations Comm’n, 875 N.E.2d 751, 758 (Ind. Ct. App. 2007).

[17] The question of retaliatory motive for a discharge is generally a question for the 

trier of fact. Powdertech, 776 N.E.2d at 1261-62 (citing Dale, 709 N.E.2d at 369). 

“Where causation or retaliation is at issue, summary judgment is 

only appropriate ‘when the evidence is such that no reasonable 

trier of fact could conclude that a discharge was caused by a 

prohibited retaliation.’” Markley Enter., Inc. v. Grover, 716 N.E.2d 

559, 565 (Ind. Ct. App. 1999) (quoting Hamann v. Gates Chevrolet 

Inc., 910 F.2d 1417, 1420 (7th Cir. 1990), reh’g denied). To 

survive a motion for summary judgment in a Frampton case, an 

employee must show more than a filing of a worker’s 

compensation claim and the discharge itself. Grover, 716 N.E.2d 

at 565. Accordingly, the employee must present evidence that 

directly or indirectly implies the necessary inference of causation

between the filing of a worker’s compensation claim and the 

termination, such as proximity in time or evidence that the 

employer’s asserted lawful reason for discharge is a pretext. Dale, 

709 N.E.2d at 369. 

Id. at 1262. “An employee can prove pretext by showing that: (1) the 

employer’s stated reason has no basis in fact; (2) although based on fact, the 

stated reason[] was not the actual reason for discharge; or (3) the stated reason 

was insufficient to warrant the discharge.” Whirlpool Corp., 875 N.E.2d at 758.
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 10 of 26

[18] In this case, Van Daele alleged that she had been retaliatorily discharged. 

Concord rejected this allegation and responded that it had discharged Van 

Daele because she refused to return to work after having been released by her 

doctors to do so. Again, in order to survive Concord’s summary judgment 

motion, Van Daele had to present evidence from which a reasonable trier-offact could find that Concord’s stated reason for the termination of her 

employment was pretext. Powdertech, 776 N.E.2d at 1262. The trial court 

determined that Van Daele failed to do so.

[19] In challenging the trial court’s award of summary judgment in favor of 

Concord, Van Daele argues that she designated evidence from which one could 

reasonably infer that Concord’s stated reason for the termination of her 

employment was pretext and that her employment was instead terminated in 

retaliation for her filing of a worker’s compensation claim. Van Daele points to 

certain pieces of designated evidence in support of this argument. The 

designated evidence cited to by Van Daele generally falls into the following five 

categories: (1) evidence demonstrating that Tahara displayed retaliatory intent; 

(2) evidence demonstrating that Tahara subsequently altered a letter sent to Van 

Daele regarding her termination; (3) evidence that Concord failed to timely 

respond to discovery; (4) evidence that Concord failed to warn Van Daele that 

rejection of the temporary transitional position would result in the termination 

of her employment; and (5) evidence relating to the allegedly suspicious timing 

of the termination.
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 11 of 26

1. Alleged Retaliatory Intent

[20] Van Daele claims that she designated evidence which demonstrated that Tahara 

acted with retaliatory intent when he recommended the termination of her 

employment to the school board. Specifically, Van Daele points to her affidavit 

in which she averred that when she and her husband met with Tahara on April 

18, 2012, Tahara “came into the room and proceeded to kick a chair. His tone 

and demeanor were angry. He said rudely: ‘sit down. This has gone on long 

enough. You’re not a good fit anymore. You’ve been out 22 weeks.’” 

Appellant’s App. p. 405. Van Daele also points to the affidavit of her husband, 

Alan Van Daele. With respect to the April 18, 2012 meeting, Alan averred as 

follows:

[Tahara’s] demeanor was impersonal and unfriendly. Without 

any greeting or introduction, he immediately ordered us in a 

stern voice to be seated. As he did so, he planted his foot on one 

of the chairs and kicked it toward a wall. The chair struck the 

wall.

5). The meeting only lasted about five minutes. I recall Mr. 

Tahara telling Jan that she “wasn’t a good fit,” that “this has 

gone on long enough,” that she had been off work for over 22 

weeks, and that she had only two options – either “resign” from 

her bus driving job or be “terminated.”

Appellant’s App. p. 413. Van Daele asserts that the above-quoted statements 

are direct evidence of animus for Van Daele’s act of filing a worker’s 

compensation claim. We disagree.
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 12 of 26

[21] While Tahara may have addressed the Van Daeles in an angry or unfriendly 

tone, neither Van Daele or Alan averred that Tahara made any reference to the 

fact that Van Daele had filed a worker’s compensation claim. Importantly, the 

Van Daeles both averred that Tahara instead referred to the length of time that 

Van Daele had been off of work. Also importantly, the April 18, 2012 meeting 

occurred over a month after Van Daele’s doctors had indicated that Van Daele 

should return to work immediately and nearly a month after Van Daele had 

refused to accept the temporary transitional position offered by Concord. These 

facts are such that a reasonable trier-of-fact could only infer that any animus on 

behalf of Tahara was due to the fact that Van Daele had refused to return to 

work (1) after having been released by her doctors to do so, and (2) after having 

been offered a temporary position which complied with the restrictions put in 

place by her doctors. The Van Daeles’ averments were not sufficient to allow a 

reasonable trier-of-fact to infer that said animus stemmed solely from the fact 

that Van Daele filed a worker’s compensation claim.

[22] Further, to the extent that Van Daele relies on this court’s prior opinions in 

Markley Enterprises and Tony v. Elkhart County, 918 N.E.2d 363 (Ind. Ct. App. 

2009), we believe that these case are distinguishable from the facts presented 

here. In Markley Enterprises, the company indicated that Grover’s employment 

was terminated because Harold Markley, the company’s president, learned that 

Grover had made derogatory comments about the company to a co-worker and 

believed that Grover’s comments would affect the company’s ability to both 

attract new employees and retain existing employees. 716 N.E.2d at 565. The 
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 13 of 26

parties designated evidence which demonstrated that the company had 

previously disciplined Grover for allegedly attempting to file a false claim for 

worker’s compensation benefits. The parties also designated an internal 

company memorandum which disclosed an extremely hostile attitude against 

Grover for having attempted to file the previous claim and stated that Grover’s 

employment would be terminated immediately in the event of “any repeat 

violations.” Id. at 566. Noting that the question of retaliatory motive is 

generally a question for the trier-of-fact, we concluded that the company was 

not entitled to summary judgment because the designated evidence was 

sufficient to raise a genuine issue of material fact as to whether the company’s 

true motive for terminating Grover’s employment was the fact that he had 

made derogatory comments about the company or his filing of the worker’s 

compensation claim. Id.

[23] In Tony, the evidence demonstrated that Tony’s difficulties at work only began 

after he sought worker’s compensation benefits for an injury which he suffered 

while “on-the-job.” 918 N.E.2d at 371. After seeking worker’s compensation 

benefits, Tony was allegedly repeatedly labeled a “faker” and was assigned job 

duties that violated medical restrictions required by his injuries. Id. There was 

no designated evidence suggesting that Tony’s job performance was 

unsatisfactory such that Elkhart County might have wanted to discharge him 

for any valid reason, as opposed to penalizing him for seeking protections and 

benefits offered under the worker’s compensation system. Id. Upon review, we 
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 14 of 26

concluded that the parties designated evidence which “was at least sufficient to 

survive summary judgment.” Id.

[24] Unlike in Markley Enterprises and Tony, there is no designated evidence 

indicating that Concord held a hostile attitude against Van Daele, exposed Van 

Daele to repeated harassment, or assigned Van Daele job duties that violated 

the medical restrictions put in place by her doctors. Instead, the designated 

evidence demonstrates that Concord attempted to accommodate Van Daele 

while she recovered from her work-related injury. Specifically, the designated 

evidence indicates that Concord allowed her to remain off of work and continue 

treatment after she was first released to return to work with restrictions and 

offered her a temporary transitional position which accommodated her work 

restrictions after she was released, for the second time, to return to work. The 

fact that Tahara allegedly used an angry or unfriendly tone and arguably acted 

in an unprofessional manner during the April 18, 2012 meeting, which again 

took place nearly a month after Van Daele refused to return to work despite 

being cleared to do so, did not expose Van Daele to an environment similar to 

the environments discussed in Markley Enterprises and Tony.

2. Alleged Alteration of Letter

[25] Van Daele also claims that an alleged alteration of certain designated evidence 

shows retaliatory intent by Concord. Specifically, Van Daele points to a letter 

sent by Tahara, on behalf of Concord, to Van Daele on May 3, 2012, indicating 

that her employment would be terminated because she remained unable to 

perform the essential functions of her job after more than twenty-two weeks of 
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 15 of 26

leave coupled with the fact that she refused to accept the temporary transitional 

position offered by Concord after her doctor indicated that she was to return to 

work immediately with transitional duties. This letter was printed on 

Concord’s letterhead and included the words “Assistant Superintendent” under 

Tahara’s name on the signature line. Appellant’s App. p. 441. The designated 

evidence also included a second copy of this letter which was provided to the 

Indiana Department of Workforce Development in August of 2012, in 

connection with Van Daele’s subsequent request for unemployment benefits. 

The second copy of the letter was not printed on Concord letterhead, was dated 

May 7, 2012, and did not include the words “Assistant Superintendent” under 

Tahara’s name. Appellant’s App. p. 253. The letters were identical in all other 

respects. 

[26] Van Daele asserts that the designated letters prove that Tahara deliberately 

altered the date of the letter from May 3, 2012 to May 7, 2012, in an attempt to 

conceal the fact that Concord had decided to terminate Van Daele’s 

employment prior to the May 7, 2012 school board meeting. Van Daele, 

however, designated no evidence that the change of the date was deliberate. To 

the contrary, the designated evidence demonstrates that Tahara denied that the 

date change was deliberate. The designated evidence further demonstrates that 

Tahara explained that the computer that he used to prepare the letter had an 

“auto date” feature and that he surmised that the date change may have 

occurred when he retrieved a copy of the letter to take with him to the May 7, 

2012 school board meeting. Appellant’s App. p. 306. The trial court twice 
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 16 of 26

found that the “‘inconsistency’” in the letters does not lead to a reasonable 

inference of retaliatory motive as the date on the letter was legally “irrelevant.” 

Appellant’s App. p. 14. We agree with the trial court in this regard.

[27] The undisputed designated evidence demonstrates that Van Daele was 

informed on April 18, 2012, that her employment would be terminated if she 

did not resign. On May 3, 2012, Tahara, on behalf of Concord, sent Van Daele 

the letter informing her that because she had not resigned, her employment 

would be terminated. As such, regardless of whether the letter was dated May 

3 or May 7, 2012, the undisputed evidence demonstrates that in light of Van 

Daele’s continued inability to perform her essential job functions coupled with 

her refusal to accept the temporary transitional position, Concord had decided 

to terminate Van Daele’s employment on or before May 3, 2012. Both 

designated copies of the letter are consistent and reflect this decision. 

Therefore, we conclude that the designated evidence relating to this claim, 

which again consisted only of the two copies of the letter, is insufficient to allow 

a reasonable trier-of-fact to infer that Concord acted with retaliatory intent.1

3. Alleged Failure to Timely Respond to Discovery

[28] Van Daele next claims that although Concord was obligated to provide all 

information that was available to the organization, it evaded certain discovery 

 

1

 We note that our review of this and other claims raised by Van Daele on appeal was 

hampered by Van Daele’s failure to cite to relevant portions of the record as required by the 

Indiana Rules of Appellate Procedure.
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 17 of 26

requests made by Van Daele for a period of approximately thirteen months. 

Van Daele argues that this alleged evasion is inconsistent with a clear 

conscience and is sufficient to support the inference that Concord’s stated 

reason for the termination of her employment was pretext. Review of the 

designated evidence, however, demonstrates that Van Daele’s assertions that 

Concord acted in an evasive manner and that certain interrogatories went 

unanswered for approximately thirteen months are misleading at best. 

[29] On October 15, 2013, Wayne Stubbs, Superintendent of Concord, answered 

Van Daele’s requested interrogatories. Van Daele subsequently determined that 

some of the provided answers were deficient, and on April 1, 2014, informed 

Concord that the answers provided for interrogatories number seventeen, 

eighteen, and twenty-two were deficient. Concord filed supplemental answers 

to these three interrogatories on May 1, 2014.

[30] On November 5, 2014, during the deposition of Tahara, counsel for Van Daele 

notified counsel for Concord that Van Daele believed that the answers provided 

for interrogatories number eleven, twelve, thirteen, fourteen, fifteen, and sixteen 

were also deficient. Concord filed supplemental answers to these six 

interrogatories as well as interrogatories number nineteen, twenty-four, and 

twenty-five on November 25, 2014. During an April 16, 2015 hearing, the trial 

court and Van Daele’s counsel engaged in the following exchange regarding the 

decision to wait approximately thirteen months to notify counsel for Concord 

of the alleged deficiencies in the answers to interrogatories eleven through 

sixteen:
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 18 of 26

The Court: I guess an – another question for you, Mr. O’Leary. 

There was a specific request made to the Defendants to 

supplement interrogatories, I believe it was 17 through 20, or 

perhaps, 16 through 20. Why wasn’t a specific request made to 

the Defendants at the time the other request was made to 

supplement Interrogatories 11 through how many numbers it 

was?

[Counsel]: Purely unconditional trial strategy, Judge. No other 

reason; purely, a trial strategy.

The Court: Did you believe that their answers to interrogatories 

had been completed, or those were complete answers at that 

time?

[Counsel]: I certainly did not. I could look at them and tell 

that there were missing pieces of information that I customarily 

see when I ask someone, tell me the names of people who – who 

fired my client. But, again, the Court seems to shift ever so 

slightly in putting the onus on us to get them to tell us what 

happened.

The Court: Wasn’t that the purpose of discovery though, so that 

parties can exchange information and engage in effective 

discovery to aid in resolving disputes?

[Counsel]: Absolutely, and what is unequivocal, Judge Lund, 

what is confusing, Judge Lund, why is not clear by a question 

such as Interrogatory 12. If the Defendant fired the Plaintiff, 

then please explain fully each reason, cause, or basis, for firing 

Plaintiff. 

Is the Court suggesting that I have to ask that question 

again, or ask it in a different way?

The Court: No, Mr. O’Leary, what I’m simply asking is when 

you made a request for supplementation on certain 

Interrogatories if you didn’t think that the answers were complete 
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 19 of 26

in the Interrogatories, why you didn’t ask for supplementation at 

that time?

[Counsel]: And I told you that it was purely a matter of trial 

strategy.

Appellee’s App. pp. 78-79. During this hearing, counsel for Van Daele further 

stated:

But my point is, they’re on the offensive with the summary 

judgment motion, they want something from the Court, right? 

They didn’t have to file that Motion for Summary Judgment, and 

my point was, that if they had not filed that Motion for Summary 

Judgment, the first time anyone would have heard about the 

inadequacies of these discovery responses would have been in 

live time in front of the jury, all right.

Appellee’s App. p. 73.

[31] On appeal, Van Daele argues that in failing to properly answer the six 

interrogatories in question, Concord acted evasively in an attempt to conceal 

the reason for the termination of Van Daele’s employment. The designated 

evidence demonstrates otherwise. In fact, the designated evidence 

demonstrates that at all relevant time periods, Van Daele was aware of the 

reason for the termination of her employment. As early as April 18, 2012, 

Concord notified Van Daele that her refusal to accept the temporary 

transitional position and return to work would result in the termination of her 

employment. Concord has consistently relied on this reason and has not, at 

any point, presented any other reason for the termination of Van Daele’s 
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 20 of 26

employment. The designated evidence also demonstrates that Van Daele has 

been aware since May of 2012 that Tahara recommended the termination of her 

employment and said termination was approved by the school board and 

Stubbs, in his capacity as Superintendent of Concord.

[32] The designated evidence does not support the reasonable inference that 

Concord acted with evasion or with the intent to conceal the reason for the 

termination of Van Daele’s employment. To the contrary, to the extent that 

either party could be said to have acted with evasive intent, that party would be 

Van Daele. The designated evidence demonstrates that Van Daele admittedly 

made the tactical decision not to inform Concord of the allegedly deficient 

answers to interrogatories eleven through sixteen in order to put herself in the 

position to surprise Concord by raising the issue for the first time at trial. The 

designated evidence further demonstrates that upon being notified of the 

allegedly deficient answers, Concord timely supplemented their answers to 

more fully answer Van Daele’s questions. Upon review, we conclude that the 

designated evidence relating to Concord’s alleged failure to present timely 

answers to interrogatories eleven through sixteen would not support the 

reasonable inference that Concord’s stated reason for the termination of Van 

Daele’s employment was pretext.

[33] Furthermore, to the extent that Van Daele relies on In re Danikolas, 838 N.E.2d 

422 (Ind. 2014) and EEOC v. Sears Roebuck and Company, 243 F.3d 853 (4th Cir. 

2001), in support of her claim, we note that both of these cases can be easily 

distinguished from the instant matter. Unlike the instant matter, in both In re 
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 21 of 26

Danikolas and Sears, the defendant articulated untimely new grievances or 

justifications for the termination of the employee’s employment. See In re 

Danikolas, 838 N.E.2d at 429 (providing that the employer provided “shifting” 

reasons for the employee’s discharge); Sears, 243 F.3d at 853-55 (providing that 

the defendant provided untimely additional justifications for its decision to 

revoke the offer of employment). Again, here, the demonstrated evidence 

demonstrates that Concord has provided a consistent reason for the termination 

of Van Daele’s employment throughout all relevant time periods. As such, Van 

Daele’s reliance on In re Danikolas and Sears is misplaced.

4. Failure to Warn

[34] Van Daele also claims that the designated evidence indicating that she was 

initially only warned that declining the temporary transitional position would 

result in the suspension of her worker’s compensation benefits supports a 

reasonable inference of pretext. The designated evidence demonstrates that in a 

March 16, 2012 letter, Matteson, her immediate supervisor, informed Van 

Daele that declining the temporary transitional position would result in the 

suspension of her worker’s compensation benefits. Matteson did not also 

mention the possibility that declining the temporary transitional position would 

also result in the termination of her employment. Van Daele argues on appeal 

that “[i]f her acceptance of the transition position was so paramount, why 

hadn’t Tahara instructed Matteson to warn Van Daele that her refusal to accept 

it would result in her termination?” Appellant’s Br. p. 19. Van Daele further 
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 22 of 26

argues that “[a]ccordingly, a jury might view Tahara’s explanation for firing 

Van Daele as phoney[.]” Appellant’s Br. p. 19.

[35] Van Daele’s arguments in this regard seem to imply that Concord had a duty to 

inform her in the March 16, 2012 letter that if she refused the temporary 

transitional position, her employment would be terminated. Van Daele, 

however has failed to point to any designated evidence or citation to relevant 

authority to support this implication. 

[36] Review of the designated evidence demonstrates that Concord gave Van Daele 

ample opportunity to decide to accept the temporary transitional position. The 

fact that Concord initially only warned Van Daele that refusal of the temporary 

transitional position would result in the suspension of her worker’s 

compensation benefits does not support the reasonable inference that Concord’s 

subsequent decision to terminate Van Daele’s employment was pretext. 

Further, the fact that Tahara waited until April 18, 2012, to notify Van Daele 

that in light of her refusal to accept the temporary transitional position, she 

could either resign or her employment would be terminated is insufficient to 

support a reasonable inference of pretext because the intervening days afforded 

Van Daele the opportunity to consider and decide whether to accept the offered 

temporary transitional position. 

5. Alleged Suspicious Timing

[37] Van Daele last claims that the designated evidence suggests that Tahara rushed 

the termination of Van Daele’s employment as the likelihood of her ability to 
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 23 of 26

return to her regular duties appeared more certain. In raising this claim, Van 

Daele asserts that “[o]nce Tahara realized from [Van Daele’s doctor’s] status 

reports that Van Daele was likely to be released to return to regular duty, he 

seized upon her decision to decline the transitional position, one month earlier. 

Tahara rushed to fire Van Daele before [her doctors] released her to return [to 

work] as a bus driver, or so a jury could reasonably conclude.” Appellant’s Br. 

p. 20. We disagree.

[38] The designated evidence demonstrates that while Van Daele was released by 

her doctors to return to her normal work-related duties around mid-day on May 

7, 2012, nothing suggests that Tahara, or anyone else at Concord, was made 

aware that Van Daele had been released to resume her duties as a bus driver 

until after the decision was made to terminate Van Daele’s employment. 

Tahara notified Van Daele on May 3, 2012, that because she remained unable 

to perform her bus-driving duties coupled with her refusal to accept the offered

temporary transitional position, Concord “must terminate [her] employment 

contract.” Appellant’s App. p. 411. The designated evidence does not contain 

any indication that Tahara was made aware that Van Daele was on the verge of 

being released by her doctors to resume her bus-driving duties before sending 

the May 3, 2012 letter or at any time prior to the May 7, 2012 school board 

meeting. 

[39] To the contrary, the designated evidence demonstrates that Van Daele did 

nothing to ensure that Concord knew prior to the May 7, 2012 board meeting 

that she had been released to return to work without any restrictions. Van 
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 24 of 26

Daele admitted during her deposition in the instant matter that she did not 

notify anyone at Concord when she was released to resume her bus-driving 

duties on May 7, 2012. Van Daele also admitted that while she understood that 

her doctors would, at some point, notify Concord that she had been released to 

resume her bus driving duties, she did not know whether her doctors provided 

Concord with this information prior to the May 7, 2012 board meeting or on 

some later date.

[40] Upon review of the designated evidence, we conclude that there is nothing 

suspicious about the timing involved in Concord’s decision to terminate Van 

Daele’s employment. Again, Van Daele first reported her injury to Concord on 

April 19, 2011. She also filed her worker’s compensation claim on this date. 

On November 21, 2011, Van Daele’s doctors first released her to return to work 

with certain restrictions. Concord did not require Van Daele to return to work 

at this time but, rather, allowed her to continue her treatment and receive 

worker’s compensation benefits. On March 12, 2012, Van Daele’s doctors, for 

the second time, released her to return to work with certain restrictions. Three 

days later, Concord offered Van Daele a temporary transitional position which 

complied with the restrictions set forth by her doctors. After Van Daele refused 

to accept the offered temporary transitional position, Concord notified Van 

Daele that in light of her continued inability to perform her job duties coupled 

with her refusal to accept the offered temporary transitional position, her 

employment would be terminated if she did not resign. Van Daele did not 

resign and on May 3, 2012, Tahara sent Van Daele a letter indicating that her 
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 25 of 26

employment would be terminated. Given that the designated evidence is 

devoid of any indication that Concord knew that Van Daele was going to be 

released to return to her bus-driving duties on May 7, 2012, or at any time in 

the near future, we conclude that the designated evidence does not support Van 

Daele’s claim that Concord’s time was suspicious. As such, the designated 

evidence establishing the timing of Concord’s communications with Van Daele 

and the termination of Van Daele’s employment are insufficient to support a 

reasonable inference of pretext.

Conclusion

[41] In light of the facts above, we conclude that although Van Daele initially 

presented a prima facie case of discrimination, Concord countered by 

satisfactorily articulating legitimate, nondiscriminatory reasons for Van Daele’s 

discharge. See Powdertech, 776 N.E.2d at 1262. Our review of the evidence 

designated by the parties leads us to the conclusion that Van Daele has failed to 

present evidence from which a reasonable trier-of-fact could infer that the 

reasons offered by Concord were mere pretext. See id. Thus, even applying a 

liberal construction in favor of Van Daele, we conclude that Van Daele has 

failed to demonstrate that she was discharged solely in retaliation for filing a 

worker’s compensation claim. See Purdy, 835 N.E.2d at 212. In light of our 

conclusion that Van Daele has failed to establish that she was discharged solely

in retaliation for filing a worker’s compensation claim, id., we cannot say that 

the trial court erred in granting summary judgment in favor of Concord. 
Court of Appeals of Indiana | Memorandum Decision 20A03-1509-PL-1539 | March 8, 2016 Page 26 of 26

[42] The judgment of the trial court is affirmed.

Baker, J., and Pyle, J, concur.