Martin Baylor v. Gary Public Library, et al

Filing 1

Private civil case docketed. Fee paid. Transcript information sheet due by 06/08/2011. Docketing Statement due for Appellant Martin Baylor by 05/26/2011. Appellant's brief due on or before 07/05/2011 for Martin Baylor. [1] [6310848] [11-2184] (FP)

case 2:10-cv-00395-WCL -APR document 26

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SHORT RECORD
APPEAL, CASREF, TERMED

Appeal no. 11-2184
FILED 5/25/2011

U.S. District Court Northern District of Indiana [LIVE]
USDC Northern Indiana (Hammond)
CIVIL DOCKET FOR CASE #: 2:10−cv−00395−WCL −APR

Baylor v. Gary Public Library et al
Assigned to: Judge William C Lee
Referred to: Magistrate Judge Andrew P Rodovich
Cause: 42:1983 Civil Rights (Employment Discrimination)

Date Filed: 10/05/2010
Date Terminated: 04/26/2011
Jury Demand: Plaintiff
Nature of Suit: 442 Civil Rights: Jobs
Jurisdiction: Federal Question

Plaintiff
Martin Baylor

represented by Bryan K Bullock
Law Office of Bryan K Bullock LLC
7863 Broadway Suite 222
Merrillville, IN 46410
219−472−1546
Fax: 219−472−1545
Email: [e-mail]
ATTORNEY TO BE NOTICED

V.
Defendant
Gary Public Library

represented by Michael E Tolbert
Hoeppner Wagner &Evans LLP − Mer/IN
1000 E 80th Place 6th Floor
PO Box 10627
Merrillville, IN 46410
219−769−6552
Fax: 219−738−2349
Email: [e-mail]
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Defendant
Gary Public Library Board of Trustees
of the

represented by Michael E Tolbert
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Defendant
Anthony Walker

represented by Michael E Tolbert
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Defendant

1

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represented by Michael E Tolbert
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Cynthia Watts

Defendant
represented by Michael E Tolbert
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Rayfield Fisher

Defendant
represented by Michael E Tolbert
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Nancy Valentine

Defendant
represented by Michael E Tolbert
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Maryann Canty−Reedus

Defendant
Sadie Sheffield
individually and collectively in their official
capacities

represented by Michael E Tolbert
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Date Filed

#

Page Docket Text

10/05/2010

1

COMPLAINT with Jury Demand filed by Martin Baylor against Board of
Trustees of the Gary Public Library, Maryann Canty−Reedus, Rayfield Fisher,
Gary Public Library, Sadie Sheffield, Nancy Valentine, Anthony Walker,
Cynthia Watts. Filing fee $ 350; Receipt #2217686. (Attachments: # 1 Civil
Cover Sheet)(tc) (Entered: 10/06/2010)

10/05/2010

2

NOTICE of Appearance by Bryan K Bullock on behalf of Martin Baylor. (tc)
(Entered: 10/06/2010)

10/05/2010

3

Summons Issued as to Board of Trustees of the Gary Public Library, Maryann
Canty−Reedus, Rayfield Fisher, Gary Public Library, Sadie Sheffield, Nancy
Valentine, Anthony Walker, Cynthia Watts. (tc) (Entered: 10/06/2010)

10/22/2010

4

NOTICE of Appearance by Michael E Tolbert on behalf of All Defendants
(Tolbert, Michael) (Entered: 10/22/2010)

10/22/2010

5

AGREED NOTICE to extend time to file answer filed by Maryann
Canty−Reedus, Rayfield Fisher, Gary Public Library, Gary Public Library Board
of Trustees of the, Sadie Sheffield, Nancy Valentine, Anthony Walker, Cynthia
Watts ; answer due by November 19, 2010. (Tolbert, Michael) (Entered:

2

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10/22/2010)
11/19/2010

6

MOTION to Dismiss Plaintiff's Complaint Pursuant to Federal Rule of Civil
Procedure 12(B)(6) by Defendants Maryann Canty−Reedus, Rayfield Fisher,
Gary Public Library, Gary Public Library Board of Trustees of the, Sadie
Sheffield, Nancy Valentine, Anthony Walker, Cynthia Watts. (Tolbert, Michael)
(Entered: 11/19/2010)

11/19/2010

7

MEMORANDUM in Support of 6 MOTION to Dismiss Plaintiff's Complaint
Pursuant to Federal Rule of Civil Procedure 12(B)(6) MOTION to Dismiss
Plaintiff's Complaint Pursuant to Federal Rule of Civil Procedure 12(B)(6) filed
by Maryann Canty−Reedus, Rayfield Fisher, Gary Public Library, Gary Public
Library Board of Trustees of the, Sadie Sheffield, Nancy Valentine, Anthony
Walker, Cynthia Watts. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Tolbert,
Michael) (Entered: 11/19/2010)

12/02/2010

8

MOTION for Extension of Time to File Response/Reply as to 6 MOTION to
Dismiss Plaintiff's Complaint Pursuant to Federal Rule of Civil Procedure
12(B)(6) MOTION to Dismiss Plaintiff's Complaint Pursuant to Federal Rule of
Civil Procedure 12(B)(6), STIPULATION by Plaintiff Martin Baylor. (Bullock,
Bryan) (Entered: 12/02/2010)

12/03/2010

9

ORDER granting 8 Stipulated Motion for Extension of Time to Respond to
Defendants Motion to Dismiss. Response to be filed by 1/19/2011. Signed by
Magistrate Judge Andrew P Rodovich on 12/3/2010. (rmn) (Entered: 12/03/2010)

01/19/2011

10

AMENDED COMPLAINT against All Defendants, filed by Martin
Baylor.(Bullock, Bryan) (Entered: 01/19/2011)

01/19/2011

11

RESPONSE in Opposition re 6 MOTION to Dismiss Plaintiff's Complaint
Pursuant to Federal Rule of Civil Procedure 12(B)(6) MOTION to Dismiss
Plaintiff's Complaint Pursuant to Federal Rule of Civil Procedure 12(B)(6) filed
by Martin Baylor. (Bullock, Bryan) (Entered: 01/19/2011)

01/19/2011

12

AMENDED COMPLAINT Corrected with electronic signature against All
Defendants, filed by Martin Baylor.(Bullock, Bryan) (Entered: 01/19/2011)

01/26/2011

13

RESPONSE in Support re 6 MOTION to Dismiss Plaintiff's Complaint Pursuant
to Federal Rule of Civil Procedure 12(B)(6) MOTION to Dismiss Plaintiff's
Complaint Pursuant to Federal Rule of Civil Procedure 12(B)(6) filed by
Maryann Canty−Reedus, Rayfield Fisher, Gary Public Library, Gary Public
Library Board of Trustees of the, Sadie Sheffield, Nancy Valentine, Anthony
Walker, Cynthia Watts. (Tolbert, Michael) (Entered: 01/26/2011)

01/26/2011

14

MOTION to Dismiss Plaintiff's Amended Complaint Pursuant to Federal Rules
of Civil Procedure 12(B)(6) and 15(A) by Defendants Maryann Canty−Reedus,
Rayfield Fisher, Gary Public Library, Gary Public Library Board of Trustees of
the, Sadie Sheffield, Nancy Valentine, Anthony Walker, Cynthia Watts. (Tolbert,
Michael) (Entered: 01/26/2011)

01/26/2011

15

MEMORANDUM in Support of 14 MOTION to Dismiss Plaintiff's Amended
Complaint Pursuant to Federal Rules of Civil Procedure 12(B)(6) and 15(A)
MOTION to Dismiss Plaintiff's Amended Complaint Pursuant to Federal Rules
of Civil Procedure 12(B)(6) and 15(A) filed by Maryann Canty−Reedus, Rayfield
Fisher, Gary Public Library, Gary Public Library Board of Trustees of the, Sadie

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Sheffield, Nancy Valentine, Anthony Walker, Cynthia Watts. (Attachments: # 1
Exhibit A)(Tolbert, Michael) (Entered: 01/26/2011)
02/15/2011

16

MOTION for Extension of Time to File Response/Reply as to 14 MOTION to
Dismiss Plaintiff's Amended Complaint Pursuant to Federal Rules of Civil
Procedure 12(B)(6) and 15(A) MOTION to Dismiss Plaintiff's Amended
Complaint Pursuant to Federal Rules of Civil Procedure 12(B)(6) and 15(A) by
Plaintiff Martin Baylor. (Bullock, Bryan) (Entered: 02/15/2011)

02/16/2011

17

ORDER: Court GRANTS 16 Stipulated Motion for Extension of Time to
Respond to Defendant's Motion to Dismiss Amended Complaint. Response to be
filed by 3/7/2011. Signed by Magistrate Judge Andrew P Rodovich on 2/16/2011.
(tc) (Entered: 02/16/2011)

03/07/2011

18

RESPONSE to Motion re 14 MOTION to Dismiss Plaintiff's Amended
Complaint Pursuant to Federal Rules of Civil Procedure 12(B)(6) and 15(A)
MOTION to Dismiss Plaintiff's Amended Complaint Pursuant to Federal Rules
of Civil Procedure 12(B)(6) and 15(A) filed by Martin Baylor. (Bullock, Bryan)
(Entered: 03/07/2011)

03/07/2011

19

MEMORANDUM OF LAW re 18 Response to Motion, by Martin Baylor.
(Bullock, Bryan) (Entered: 03/07/2011)

03/14/2011

20

BRIEF in Support of 14 MOTION to Dismiss Plaintiff's Amended Complaint
Pursuant to Federal Rules of Civil Procedure 12(B)(6) and 15(A) MOTION to
Dismiss Plaintiff's Amended Complaint Pursuant to Federal Rules of Civil
Procedure 12(B)(6) and 15(A) REPLY BRIEF filed by Maryann Canty−Reedus,
Rayfield Fisher, Gary Public Library, Gary Public Library Board of Trustees of
the, Sadie Sheffield, Nancy Valentine, Anthony Walker, Cynthia Watts. (Tolbert,
Michael) (Entered: 03/14/2011)

04/11/2011

21

MOTION to Amend/Correct 1 Complaint, by Plaintiff Martin Baylor.
(Attachments: # 1 Exhibit A)(Bullock, Bryan) (Entered: 04/11/2011)

04/20/2011

22

04/26/2011

23

16 CLERK'S ENTRY OF JUDGMENT. (tc) (Entered: 04/26/2011)

05/19/2011

24

17 NOTICE OF APPEAL as to 22 Order on Motion to Dismiss, by Martin Baylor.
(Bullock, Bryan) (Entered: 05/19/2011)

05/24/2011

25

19 USCA Appeal Fees received on *5/24/2011* in the amount of $ 455, receipt
number INN2001287 re 24 Notice of Appeal filed by Martin Baylor. The Notice
of Appeal filing fee was paid on *5/24/2011*. (tc) (Entered: 05/24/2011)

5 OPINION AND ORDER: Court GRANTS 14 Motion to dismiss amended
complaint; DEEMS MOOT 14 Motion to Dismiss the complaint. Signed by
Judge William C Lee on 4/20/2011. (tc) (Entered: 04/20/2011)

4

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
MARTIN BAYLOR,
Plaintiff,
v.
THE GARY PUBLIC LIBRARY, et al.,
Defendants.

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CIVIL NO. 2:10cv395

OPINION AND ORDER
This matter is before the court on a motion to dismiss filed by the defendants, The Gary
Public Library (“GPL”), The Board of Trustees of the Gary Public Library (“Trustees”),
Anthony Walker (“Walker”), Cynthia Watts (“Watts”), Rayfield Fisher (“Fisher”), Nancy
Valentine (“Valentine”), Maryann Canty-Reedus (“Canty-Reedus”), and Sadie Sheffield
(“Sheffield”), on January 26, 2011. The plaintiff, Martin Baylor (“Baylor”), filed his response
on March 7, 2011, to which the defendants replied on March 14, 2011.
Motion to Dismiss Standard
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure for failure to state a claim is to test the sufficiency of the pleading, not to decide
the merits of the case. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). Rule
8(a)(2) provides that a complaint must contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.” However, “recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937,
1949 (2009)(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). As the Supreme
Court has stated, “the tenet that a court must accept as true all of the allegations contained in a

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complaint is inapplicable to legal conclusions.” Id. Rather, “a complaint must contain sufficient
factual matter, accepted as true, to “state a claim to relief that is plausible on its face.’” Id. at
1940 (quoting Twombly, 550 U.S. at 570). A complaint is facially plausible if a court can
reasonably infer from factual content in the pleading that the defendant is liable for the alleged
wrongdoing. Id. The Seventh Circuit Court of Appeals has synthesized the standard into three
requirements. “First, a plaintiff must provide notice to defendants of [his] claims. Second, courts
must accept a plaintiff’s factual allegations as true, but some factual allegations will be so
sketchy or implausible that they fail to provide sufficient notice to defendants of the plaintiff’s
claim. Third, in considering the plaintiff’s factual allegations, courts should not accept as
adequate abstract recitations of the elements of a cause of action or conclusory legal statements.”
Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009).
Discussion
On November 19, 2010 the defendants filed a motion to dismiss Baylor’s complaint. In
addition to responding to the motion on January 19, 2011, Baylor filed an amended complaint.
The defendants then filed a new motion to dismiss on January 26, 2011, which motion is
presently before the court.
The defendants first argue that the amended complaint is not properly before this court,
because Baylor did not comply with the procedural requirements set out in Rule 15(a) of the
Federal Rules of Civil Procedure. The defendants acknowledge that Baylor has only minimally
changed the original complaint by omitting the breach of contract and equal protection claims
and adding a few factual allegations. The defendants also contend that even the amended
complaint cannot withstand the current motion to dismiss. This court will accept the amended

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complaint and will rule on motion to dismiss.
Baylor’s amended complaint asserts a Section 1983 claim, alleging substantive due
process violations and deprivation of property and liberty interest in position, a constructive
discharge claim, a retaliatory constructive discharge claim, and a claim of “stigmatizing false
allegation”. The pertinent background facts are as follows. Baylor is an employee of the GPL, a
municipal corporation. In February of 2009, Sherri Ervin, Director of the GPL, allegedly
directed Baylor to fill out a workman’s compensation form regarding a subordinate’s workplace
injury, and Baylor advised Ms. Ervin that he did not have enough information regarding the
incident to properly fill out the form. Baylor claims he was ordered to fill out this form despite
his lack of knowledge of the event. Baylor allegedly filled out the form based upon what he
knew, but Ms. Ervin was not satisfied.
On or about March 3, 2009, Baylor claims he was suspended for 15 days from his job,
without pay, because he refused to provide false and misleading information on the workman’s
compensation form in violation of federal and state laws. Baylor alleges that he was not verbally
warned, written up, or afforded a post-deprivation hearing, pursuant to the employment manual
adopted by GPL. When Baylor returned to work after the 15-day suspension, he was suspended
again by Ms. Ervin , indefinitely, for mis-use of library time.
Baylor alleges that he was not afforded a pre-deprivation hearing, nor was he given a
written notice of the allegations or charges against him prior to the suspension. Baylor requested
a post-deprivation hearing, which was held in May of 2009. At this hearing, Baylor claimed that
Ms. Ervin leveled several charges of misconduct at Baylor, none of which he had ever been
verbally warned about or written up. In June of 2010, GPL held a hearing where allegations

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were made regarding Baylor’s mis-use of time. Baylor alleges that he has not been brought back
to work, nor formally fired.
Baylor has sued the Board of Trustees of GPL in both their official and individual
capacities, asserting that the Trustees hold hearings, take votes on issues relating to employment
matters of the GPL, and adopt, modify, and enforce rules and regulations of GPL. Baylor alleges
that during the past year the Trustees have had numerous public meetings regarding Baylor’s
employment status, yet have failed to end Baylor’s lengthy unpaid suspension.
Baylor alleges that the Trustees’ meetings were taken in their official capacity acting
under color of state law. Baylor alleges he suffered deprivations of constitutional rights under
color of state law pursuant to 42 U.S.C. § 1983, and the Fifth and Fourteenth Amendments to the
United States Constitution. Baylor has asserted both procedural and substantive due process
claims and also alleges state law claims of constructive discharge and retaliatory discharge.
In support of their motion to dismiss, the defendants first assert that the Trustees should
be dismissed in both their individual and official capacities. Specifically, the defendants argue
that the official capacity claims should be dismissed because the claims against the Trustees are
duplicate and redundant since the GPL is named as a defendant. Baylor has not addressed this
argument in his response. The law is clear that official capacity claims are, in actuality, claims
against the government entity. Campbell v. Town of Austin, 2004 U.S. Dist. LEXIS 1925, *11
(S.D. Ind. 2004)(quoting Monell v. New York City Dep’t of Social Services, 436 U.S. 658, 690
n. 55 1978)). Therefore, the official capacity claims against the Trustees will be dismissed. See
Eller v. Gary Community School Corp., 2010 U.S. Dist. LEXIS 97216, *9 (N.D. Ind. 2010;
Estate of O’Bryan v. Town of Sellersburg, 2004 U.S. Dist. LEXIS 10160, *51 (S.D. Ind. 2004).

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With respect to the individual capacity claims against the Trustees, the defendants argue
that there was no constitutional deprivation caused to Baylor because Baylor had no property or
liberty interest in his employment. This point will be discussed further below with respect to
Baylor’s Section 1983 claim. The defendants also claim that Baylor has failed to allege any
personal involvement on the part of the Trustees in the alleged deprivation. In fact, every
allegation in the original complaint and the amended complaint state that the Trustees’ actions
were taken in the Board’s official capacity acting under color of state law. Moreover, the
Trustees are immune from all state law claims (i.e. constructive discharge and retaliatory
discharge) pursuant to I.C. 34-13-3-5(a) which provides that “[c]ivil actions relating to acts taken
by a board, a committee, a commission, an authority, or another instrumentality of a
governmental entity may be brought only against the board, the committee, the commission, the
authority, or the other instrumentality of a governmental entity.”
The defendants request that Baylor’s Section 1983 claim be dismissed. In order to state a
cause of action under Section 1983 for deprivation of a property interest without due process,
Baylor must allege facts which would demonstrate that he has a right in a continued employment
amounting to a property interest. Cleveland Bd. of Edu. v. Loudermill, 470 U.S. 532, 538
(1985); Board of Regents v. Roth, 408 U.S. 564, 576-78(1972). A policy giving the right to a
hearing prior to termination does not create a property right. Moulton v. Vigo County, 150 F.3d
805 (7th Cir. 1998); Montgomery v. Stefaniak, 410 f.3d 933, 939 (7th Cir. 2005).
Although Baylor no longer alleges a claim for breach of contract in his Amended
Complaint, he still relies on the employment manual as creating rights and entitlements. Baylor
alleges that he had a reasonable expectation of continued employment arising from the

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employment manual. Baylor alleges he was never warned or written up, per the employment
manual. Baylor asserts that the employment manual was officially adopted by the Board of
Trustees and is relied upon by its employees. Baylor also claims that the Trustees are bound by
the rules and regulations that it adopts. Baylor further uses the employment manual to support
his constructive discharge claim.
The defendants have submitted a copy of the employment manual1 in question which
shows Baylor was an employee at will. The defendants note that in order to state a cause of
action under Section 1983 for deprivation of a property interest without due process, Baylor
must allege facts which would demonstrate that he has a right in continued employment
amounting to a property interest. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538
(1985); Board of Regents v. Roth, 408 U.S. 564, 576-78 (1972). Property interests “are created
and their dimensions are defined by existing rules or understandings that stem from an
independent source such as state law.” Roth, 408 U.S. at 577. The defendants correctly assert
that, under Indiana law, Baylor does not allege facts supporting his right to continued
employment such as would constitute a property interest.
As a general rule, under Indiana law, employment relationships are terminable at the will
of either party. Speckman v. City of Indianapolis, 540 N.E.2d 1189, 1192 (Ind. 1989); Phegley
v. Indiana Dept. of Highways, 564 N.E.2d 291, 295 (Ind. Ct. App. 1990). When no definite or

1

The submission of the employment manual does not require the court to convert the
motion to dismiss to a motion for summary judgment because documents attached to a motion to
dismiss are considered part of the pleadings if they are referred to in the plaintiff’s complaint and
are central to his claim. Wright v. Associated Insurance Companies Inc., 29 F.3d 1244, 1248 (7th
Cir. 1994)(permitting defendant to attach a Health Insurance Risk Plan Administration
Agreement to its motion to dismiss the plaintiff’s Section 1983 and state law claims without
converting the motion to one for summary judgment).
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ascertainable term of employment exists, an employee is considered an employee at will and
may be terminated at any time, with or without cause. Orr v. Westminster Village N., Inc., 689
N.E.2d 712, 717 (Ind. 1997). According to the Indiana Supreme Court, there are only three ways
to avoid or rebut the presumption of at-will employment: (1) independent consideration
supporting the employment contract; (2) public policy exception arising from a statutory right or
duty; and (3) promissory estoppel. Id. at 718. “Of these exceptions only the first, consideration,
generally has the potential to establish a property right.” Wozniak v. Ind. Univ. Bd. of Trustees,
2007 U.S. Dist. LEXIS 20114, *11 (S.D. Ind. 2007). Further, a policy giving the right to a
hearing prior to termination does not create a property right. Moulton v. Vigo County, 150 F.3d
805 (7th Cir. 1998). Baylor relies on Cotnoir v. University of Maine, 35 F.3d 6 (1st Cir. 1994), in
support of his argument that an employee manual may give rise to a property interest. However,
as the defendants point out, this is not the law in Indiana. Indiana courts have been unequivocal
in their rejection of alleged property rights based on employee handbooks. Shannon v. Bepko,
684 F. Supp. 1465, 1478 (S.D. Ind. 1988); see also, Mead Johnson & Co. v. Oppenheimeir, 458
N.E.2d 668, 671 (Ind.App. 1984)(employee handbooks are immaterial without an enforceable
agreement between the employer and the employee of employment for a definite duration.)
In the present case it is clear that Baylor has not alleged that a definite or ascertainable
term of employment exists. Nor has he alleged any form of independent consideration
supporting an employment contract. Baylor also has not alleged that a statute gave him a right to
continued employment, nor has he pled any facts supporting a promissory estoppel theory.
Accordingly, this court agrees with the defendants that under no set of facts can Baylor
demonstrate that he is not an at-will employee. Thus, Baylor’s deprivation of property interest

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claim will be dismissed.
The defendants next argue that Baylor has failed to state a substantive due process claim.
The defendants assert that even if Baylor can demonstrate that the defendants’ actions were
arbitrary and capricious, Baylor cannot demonstrate that state law remedies are inadequate. The
defendants note that in Baylor’s original complaint he did not even allege that state law remedies
were inadequate. In Baylor’s amended complaint, he alleged that he did not have adequate
remedies under state law, despite the fact that he still made state law claims. Baylor’s amended
complaint asserts the state law claims of constructive discharge and retaliatory discharge. The
defendants point out that Baylor must believe that his state law claims are meritorious or he
would not have asserted them and, thus, Baylor cannot show that state law remedies are
inadequate. In any event, Baylor has not shown that a constitutional provision has been violated
because he had no property or liberty interest in his employment. Kauth v. Hartford Ins. Co.,
852 F.2d 951, 958 (7th Cir. 1988). Therefore, Baylor’s substantive due process claim will be
dismissed for failure to state a claim.
Next, the defendants argue that Baylor has failed to state a liberty interest claim because
his complaint is virtually devoid of information regarding public disclosure of the alleged
stigmatizing statements. In the Seventh Circuit, when an employee claims that a government
employer has infringed his liberty to pursue the occupation of his choice, the employee must
show that: (1) he was stigmatized by the defendant’s conduct; (2) the stigmatizing information
was publically disclosed; and (3) he suffered a tangible loss of other employment opportunities
as a result of the public disclosure. Townsend v. Vallas, 256 F.3d 661, 669 (7th Cir. 2001).
“Therefore, a requirement that the employee show that he suffered a tangible loss of other

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employment opportunities is consistent with the case authority insisting that a liberty interest
claim not be unduly speculative.” Id. at 671.
Baylor’s original complaint made no mention of the alleged stigmatizing statement.
Paragraph 20 of the amended complaint vaguely states that “At some point in 2009, around the
time of the suspension, the local newspaper, the Post Tribune, reported and published a story
regarding Plaintiff’s suspension.” In Harris v. City of Auburn, 27, F.3d 1284 (7th Cir. 1994), the
Seventh Circuit Court of Appeals found that the plaintiff failed to prove that he was denied a
liberty interest without due process of law when the complaint was deficient of the alleged
stigmatizing statement, where the statements were made, and what exactly was publically
disclosed. In the present case, Baylor only asserted vague, conclusory allegations about the
public disclosure of alleged stigmatizing statements. Moreover, Baylor did not allege any loss of
other employment opportunities. Therefore, it is clear that Baylor’s liberty interest claim must
be dismissed.
As all of Baylor’s federal claims have been dismissed the court could summarily dismiss
his state law claims. However, as the claims are clearly not supported by the amended
complaint, the court will proceed with a short discussion. With respect to Baylor’s constructive
discharge claim, the defendants seek dismissal of the claim on the grounds that Baylor has failed
to plead facts that indicate that he was not an employee-at-will.

As noted above, the defendants

have attached portions of Baylor’s employment manual, and the manual shows that Baylor is an
employee at-will who could be terminated without cause at any time. Although Baylor relies on
Levenstein v. The Board of Trustees of the University of Illinois, No. 95C5524 1997 U.S. Dist.
LEXIS 619, the case is easily distinguished by the fact that the plaintiff in Levenstein was a

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tenured professor and it is well established that a tenured professor has a property interest in his
job that is protected by the Fourteenth Amendment. Id. As Baylor was an employee at will his
constructive discharge claim must be dismissed for failure to state a claim.
Baylor’s amended complaint also attempts to set forth a claim for retaliatory constructive
discharge. Baylor alleges in a conclusory fashion that he “was retaliated against by Defendants
for refusing to falsify a worker’s compensation form by being placed on unpaid suspension.
This action was the initial suspension imposed by Defendants on Plaintiff and Defendants have
not allowed him to return to work or receive any of the benefits of employment since that time.”
Baylor has also alleged, in the context of his Section 1983 claim, that he was directed to fill out
a worker’s compensation form regarding a subordinate’s workplace injury. Baylor alleges that
he did not have enough information regarding the incident but was ordered to fill out the form
despite lack of knowledge of the event. Baylor alleges that he filled out the form based on what
he knew, and was subsequently suspended for insubordination.
The defendants assert that the amended complaint does not allege any facts that would
support the conclusory claim that Baylor was asked to provide false information. The Supreme
Court of Indiana has carved out only two public policy exceptions to the “venerable at will
employment doctrine.” See Campbell v. Eli Lilly & Co., 413 N.E.2d 1054, 1061
(Ind.Ct.App.1980). It has held that an employee-at-will could bring a claim for retaliatory
discharge against his employer when he was discharged for (1) filing a worker's compensation
claim, see Frampton v. Central Ind. Gas Co., 260 Ind. 249, 297 N.E.2d 425, 427–28 (1973), or
(2) refusing to commit an illegal act for which he would be personally liable, see McClanahan v.
Remington Freight Lines, Inc., 517 N.E.2d 390, 392–93 (Ind.1988); see also Walt's

10

14

case 2:10-cv-00395-WCL -APR document 26

filed 05/25/11 page 16 of 20

Drive–A–Way Serv., Inc. v. Powell, 638 N.E.2d 857, 858 (Ind.App.1994). The Supreme Court
of Indiana has expressed its reluctance to broaden exceptions to the doctrine. See Wior v.
Anchor Industries, Inc., 669 N.E.2d 172, 177 n. 5 (Ind. 1996)(“Generally, we are disinclined to
adopt generalized exceptions to the employment-at-will doctrine in the absence of clear statutory
expression of a right or duty that is contravened.”). Indiana appellate courts reiterate that the
public policy exception continues to be narrowly construed. See, e.g., Dale v. J.G. Bowers, Inc.,
709 N.E.2d 366, 368 (Ind.Ct.App.1999).
In the present case, the factual allegations in the amended complaint do not provide any
basis on which to find that Baylor was anything other than an employee-at-will or that he was
constructively discharged for refusing to commit an illegal act. Therefore he has not properly
pled a retaliatory constructive discharge claim and the claim will be dismissed.
Conclusion
On the basis of the foregoing, the defendants’ motion to dismiss amended complaint [DE
14] is hereby GRANTED. The defendants’ earlier motion to dismiss the complaint [DE 6] is
hereby DEEMED MOOT.

Entered: April 20, 2011.

s/ William C. Lee
William C. Lee, Judge
United States District Court

11

15

case 2:10-cv-00395-WCL -APR document 26

filed 05/25/11 page 17 of 20

AO 450 (Rev. 01/09) Judgment in a Civil Action

UNITED STATES DISTRICT COURT
for the
Northern District of Indiana
__________ District of __________

Martin Baylor
Plaintiff

v.
Gary Public Library et al
Defendant

)
)
)
)
)

Civil Action No. 2:10cv395

JUDGMENT IN A CIVIL ACTION
The court has ordered that (check one):
u the plaintiff (name)
defendant (name)

recover from the
the amount of
), which includes prejudgment
%, along with costs.

dollars ($
%, plus postjudgment interest at the rate of

interest at the rate of

u the plaintiff recover nothing, the action be dismissed on the merits, and the defendant (name)
recover costs from the plaintiff (name)
.

✔ other:
u

Defendant's Motion to dismiss amended complaint is Granted.

.
This action was (check one):
u tried by a jury with Judge
rendered a verdict.
u tried by Judge
was reached.

✔ decided by Judge
u

presiding, and the jury has
without a jury and the above decision

William C Lee

on a motion

to dismiss amended complaint.

Date:

04/26/2011

CLERK OF COURT

s/Teresa Castillo
Signature of Clerk or Deputy Clerk

16

case 2:10-cv-00395-WCL -APR document 26

filed 05/25/11 page 18 of 20

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
MARTIN BAYLOR
Plaintiff

vs.
The Gary Public Library, the Board of
Trustees of the Gary Public Library, Anthony
Walker, Cynthia Watts, Rayfield Fisher,
Nancy Valentine, Maryann Canty-Reedus and
Sadie Sheffield, individually and collectively
in their official capacities

)
)
)
)
)
)
)

Cause No.: 2:10-cv-395

Defendants
NOTICE OF APPEAL TO THE SEVENTH CIRCUIT COURT OF APPEALS
FROM A JUDGMENT OR ORDER OF THE DISTRICT OF THE NORTHERN
DISTRICT OF INDIANA
Notice is hereby given that Martin Baylor, by his attorney, Bryan K. Bullock, in the
above captioned case, hereby appeals to the United States Court of Appeals for the Seventh
Circuit from the final judgment entered in this action on April 20, 2011.

s/BRYAN K. BULLOCK
BRYAN K. BULLOCK
Attorney for Plaintiff, Savannah Cole
7863Broadway, Suite 222
Merrillville, IN 46410
[phone] Phone
[phone] Fax
[e-mail]

17

case 2:10-cv-00395-WCL -APR document 26

filed 05/25/11 page 19 of 20

CERTIFICATE OF SERVICE
I hereby certify that on this 19th day of May, 2011 a true and accurate copy of the above
Notice of Appeal was served upon all counsel and parties of record by electronic facsimile,
e-mail or the court’s electronic case filing (ECF) system.

/Bryan K. Bullock
BRYAN K BULLOCK
7863 Broadway, Suite 222
Merrillville, Indiana 46410
219 472-1546 Phone
219 472-1545 Fax
[e-mail]

18

case 2:10-cv-00395-WCL -APR document 26

filed 05/25/11 page 1 of 20

SEVENTH CIRCUIT APPEAL INFORMATION SHEET
Include names of all plaintiffs (petitioners) and defendants (respondents) who are parties to the appeal.
Use separate sheet if needed.
District:
Division:

Docket No.: 2:10cv395

Northern District of Indiana
Hammond Division
Plaintiff (Petitioner)

Short Caption
v

( Martin Baylor

Defendant (Respondent)
)

Gary Public Library, et al

------------------------------------------------------------------------------------------------------------------------------------------Current Counsel for Plaintiff (Petitioner):
Current Counsel for Defendant (Respondent):
(Use separate sheet for additional counsel)
Name:

Bryan K Bullock

Name:

Michael E Tolbert

Firm:
Address:

Law Office of Bryan K Bullock LLC
7863 Broadway

Firm:
Address:

Hoeppner Wagner & Evans LLP Mer/IN
1000 E 80th Place 6th Floor

Suite 222

PO Box 10627
Merrillville, IN 46410

Merrillville, IN 46410
Phone:

Phone:

219-472-1546

219-769-6552

------------------------------------------------------------------------------------------------------------------------------------------William Lee
Judge:
Court Reporter:

Counsel:
Fee Status:

Nature of Suit Code:
Date Filed in District Court:
Date of Judgment:
Date of Notice of Appeal:

Appointed
Paid

Retained
Due

Pro Se

IFP

IFP Pending

442
10/05/2010
04/26/2011
05/19/2011

U.S.

Waived

(Please mark only 1 item above)
Has Docketing Statement been filed with the District Court’s Clerk’s Office
If 28 U.S.C.§2254 or 28 U.S.C.§2255 was certificate of appealability:

Yes
granted;

No
denied;

pending;
If certificate of appealability was granted or denied, what is the date of the order:
If Defendant is in Federal custody, please provide United States Marshal number (USM#):
IMPORTANT: THIS FORM IS TO ACCOMPANY THE SHORT RECORD SENT TO THE CLERK OF
THE U.S. COURT OF APPEALS PURSUANT TO CIRCUIT RULE 3(a).

3/01

case 2:10-cv-00395-WCL -APR document 26

filed 05/25/11 page 20 of 20

UNITED STATES DISTRICT COURT
FOR THE USDC Northern Indiana
HAMMOND DIVISION

May 24, 2011
NOTICE OF PAYMENT OF APPELLATE DOCKETING FEE
Gino J. Agnello, Clerk
U. S. Court of Appeals
for the Seventh Circuit
Room 2722
219 S. Dearborn Street
Chicago, IL 60604
Re: Baylor v. Gary Public Library et al
District Case Number: 2:10−cv−00395−WCL −APR
Circuit Case Number: ,
Dear Mr. Agnello:
We received payment of the required docketing fee in the above entitled matter
on 5/24/2011 . The Notice of Appeal filing fee was paid on 5/24/2011 .
STEPHEN R. LUDWIG, CLERK

By: s/ Teresa Castillo
Deputy Clerk

19