Busz v. David Gladieux et al

Filing 38

OPINION AND ORDER: The Court GRANTS the Defendants' Motion for Summary Judgment 33 as to all the Plaintiff's claims. The Clerk is ORDERED to enter judgment in favor of the Defendant and against the Plaintiff. Signed by Chief Judge Theresa L Springmann on 1/2/2019. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
BOBBY JO BUSZ,
Plaintiff,
v.

CAUSE NO.: 1:17-CV-31-TLS

ALLEN COUNTY SHERIFF DAVID
GLADIEUX,
Defendant.
OPINION AND ORDER
The Defendant,1 Allen County Sheriff David Gladieux, seeks summary judgment on the
claims of the Plaintiff, Bobby Jo Busz [ECF No. 33]; specifically, the Plaintiff’s claims under
Titles I and II of the Americans with Disabilities Act (“ADA”), Section 504 of the Rehabilitation
Act, and various state and constitutional claims. For the reasons stated below, the Defendant’s
Motion is GRANTED and the Plaintiff’s Complaint is DISMISSED WITH PREJUDICE.

FACTUAL BACKGROUND
The Defendant’s Department operates the Allen County Work Release Program (the
“Program”) out of the Allen County Work Release Center (the “Center”), a minimum-security
work release facility. While serving a one-year prison term, the Plaintiff was accepted into the
Program, and housed at the Center, starting on or about October 8, 2015. As a participant in the
Program, the Plaintiff was required to obtain employment within thirty days of intake and find
new employment within twenty-one days of termination “under less than adverse conditions.”

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H&E Machined Specialties, Inc. was dismissed from this case on January 16, 2018 pursuant to Federal
Rule of Civil Procedure 41(a)(1)(A)(ii) [ECF No. 27].

See Allen Cmty. Agreement to Obtain Emp., ECF No. 35-2. The Center set the hours within
which the Plaintiff could search for employment. The Plaintiff also committed to receiving the
Center staff’s approval if he wanted to change employment and pay 25% of his income or $22.00
a day as room and board. The Center was “in touch” with H&E to “ensure that [the Plaintiff] was
performing his work in a satisfactory manner.” See Aff. of Michael Biltz, ¶ 6, ECF No. 33-1.
A Residential Adviser at the Center told the Plaintiff about a job opportunity at H&E
Machined Specialities (“H&E”). The Plaintiff applied and obtained employment at H&E. H&E
set the Plaintiff’s rate of pay, paid the Plaintiff, and a plant manager at H&E directed the
Plaintiff’s work and established his working schedule. On or around November 12, 2015, at
approximately 5:00 p.m., the Plaintiff took a Tylenol PM cold pill and experienced an adverse
reaction. Later that day, H&E terminated the Plaintiff’s employment. No individuals involved in
the Allen County Work Release Program played a role in the decision to terminate the Plaintiff.
However, on November 23, 2015, the Allen County Work Release Program held a hearing, and
found that “[i]nmate Busz was terminated from employment due to his bizarre behavior at H&E
Machined Specialties.” See Allen Cmty. Work Release Ctr. Discipline Committee Report (the
“Report”), ECF No. 35-5. Under “Sanction Recommendation,” the Report states, “[i]nmate Busz
must obtain full-time employment within 21 days of his termination date.” Id.
The Plaintiff stayed in the Program and remained housed at the Center, until his
scheduled release from custody. The Plaintiff obtained new employment on December 7, 2015.

STANDARD OF REVIEW
Summary judgment is proper where the evidence of record shows that there is no genuine
issue of material fact and that the moving party is entitled to judgment as a matter of law.

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Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). The moving party bears the initial burden
of informing the court of the basis for its motion and identifying those portions of the record it
believes demonstrate the absence of a genuine issue of material fact. Id. at 323. The burden then
shifts to the non-movant to “go beyond the pleadings” to cite evidence of a genuine factual
dispute precluding summary judgment. Id. at 324. “[A] court has one task and one task only: to
decide, based on the evidence of record, whether there is any material dispute of fact that
requires a trial.” Waldridge v. Am. Heochst Corp., 24 F.3d 918, 920 (7th Cir. 1994). If the nonmovant does not come forward with evidence that would reasonably permit the finder of fact to
find in its favor on a material issue, then the Court must enter summary judgment against it. Id.

ANALYSIS
The Plaintiff brought a variety of claims. The Plaintiff concedes that summary judgment
should be granted on his various constitutional and state law claims. See, et al., Resp. to Mot.,
ECF No. 35, p. 2. Remaining are his claims for: (1) discrimination under Section 504 of the
Rehabilitation Act, (2) discrimination under Title II of the Americans with Disabilities Act
(“ADA”), and (3) discrimination under Title I of the ADA.

A.

Discrimination under Section 504 of the Rehabilitation Act

To establish a claim under Section 504 of the Rehabilitation Act, the Plaintiff must show
that (1) he is a qualified individual, (2) with a disability, (3) who was denied access to a program
or activity on the basis of his disability through an entity receiving federal financial assistance.
See Wis. Cmty. Serv. v. City of Milwaukee, 465 F.3d 737, 746–47 (7th Cir. 2006). The

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Rehabilitation Act applies to work release programs. See Jaros v. Ill. Dept. of Corr., 684 F.3d
667, 673 (7th Cir. 2012).
The only issue the parties contest is whether the Plaintiff was denied access to a program
or activity by an entity receiving federal financial assistance. The Plaintiff argues first that,
because H&E is the Defendant’s contractor, H&E’s termination of him qualifies as denial of
access to a program. Even assuming the Plaintiff’s theory is legally supported, but see Maxwell
v. S. Bend Work Release Ctr., 787 F. Supp. 2d 819, 827–28 (N.D. Ind. 2011) (holding that only a
direct beneficiary of federal funds, not an indirect, alleged contractor, can be liable under the
Rehabilitation Act), the Plaintiff has presented no evidence that H&E was, in fact, the
Defendant’s contractor. Without establishing this prerequisite relationship, there is no genuine
dispute of material fact.
In the alternative, the Plaintiff argues that the Defendant did directly discriminate against
the Plaintiff through the Report. However, while the Report does “sanction” the Plaintiff by
requiring him to find new employment within twenty-one days, the Plaintiff does not present any
support for the conclusion that the Report or the Sanction was a denial of access to the work
release program. Cf. Jaros, 684 F.3d at 673 (blocking an inmate from participating in the
program would qualify as denial of access), Maxwell v. S. Bend Work Release Ctr., Case No.
3:09-cv-08, 2011 WL 4688825, *5 (N.D Ind. Oct. 3, 2011) (indicating that, although the plaintiff
failed to establish causation, removal from the program does meet the elements of a
rehabilitation claim). Particularly as the Plaintiff remained in the Program even though he did not
find subsequent employment for another twenty-five days, the Court cannot conclude that the
Report constitutes denying the Plaintiff access to the Program.

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B.

Discrimination under Title II of the ADA

To state a claim under Title II of the ADA, the Plaintiff must establish: (1) he is a
qualified individual with a disability, (2) he was denied the benefits of the services, programs, or
activities of a public entity, and (3) the denial or discrimination was by reason of his disability.
See Wagoner v. Lemmon, 778 F.3d 586, 592 (7th Cir. 2015). For his Title II claim, the Plaintiff
relies on the same two theories as for his Rehabilitation Act claim. For the same reasons, there is
no genuine dispute of material fact.2

C.

Discrimination under Title I of the ADA

Title I of the ADA applies to discrimination by a “covered entity,” defined as an
“employer, employment agency, labor organization, or joint labor-management committee.” 42
U.S.C. § 12111(2). The parties’ briefing suggests that the Defendant is the Plaintiff’s employer
only by way of a joint-employer theory. “The joint-employer concept derives from labor law . . .
[and] is designed to identify the business entities that control the employees' terms and
conditions of employment.” See Whitaker v. Milwaukee Cmty, Wis., 772 F.3d 802, 811 (7th Cir.
2014). To identify whether two entities constitute joint employers, the Court considers:
(1) the extent of the employer’s control and supervision over the employee; (2)
the kind of occupation and nature of skill required, including whether skills were
acquired on the job; (3) the employer’s responsibility for the costs of operation;
(4) the method and form of payment and benefits; and (5) the length of the job
commitment;

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Additionally, unlike the Rehabilitation Act, Title II of the ADA does not cover employment by a public
entity. See Brumfield v. City of Chicago, 735 F.3d 619, 630 (7th Cir. 2013). Thus, even assuming
(1) H&E was the Defendant’s contractor, and (2) the Defendant had liability for its contractors under Title
II, the Plaintiff’s claim under Title II of the ADA on the theory that the Defendant was responsible for his
employment with H&E would still not be valid. See Neisler v. Tuckwell, 807 F.3d 225, 227 (7th Cir.
2015) (“Title II does not apply to a prisoner’s claim of employment discrimination in a prison job.”).

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and the putative joint-employer’s right to control the employee is the most important
consideration. See Love v. JP Cullen & Sons, Inc., 779 F.3d 697, 702 (7th Cir. 2015), citing
Knight v. United Farm Bureau Mut. Ins. Co., 950 F.2d 377, 378–79 (7th Cir. 1991).
The Defendant did dictate that the Plaintiff had to be employed and when the Plaintiff
could look for work, and forbade self-employment. The Defendant also retained the right to tell
the Plaintiff that he could not work at a given business for certain reasons and to approve
changes in employment. Finally, the Defendant did require the Plaintiff to pay him some portion
of his wages.
Therefore, as one might expect of a Center housing inmates, the Defendant did have
significant control over the Plaintiff. However, what the Defendant did not control is the
Plaintiff’s employment. The Plaintiff’s testimony, cited by the Defendant, established that only
H&E determined which of his available hours he worked and what job duties he was to perform
while working. H&E’s employee supervised him. H&E set the Plaintiff’s rate of pay and paid
him. H&E alone made the decision to terminate him. See Reply to Resp. to Mot., ECF No. 37, p.
5; see also Dep. of Bobby Jo Busz, ECF No. 33-2.
The Plaintiff states, in his Brief, that “[a]t Defendant’s order, Mr. Busz could be
terminated,” “[m]anagers of Mr. Busz’s work site were required to enter into a work agreement
with Defendant,” and that “[t]he possibility of Mr. Busz’ employment was created and
extinguished at the whim of Defendant.” See Br. in Opp., ECF No. 36, pp. 14–15. However, the
Plaintiff cites no evidence that specifically establishes these claims. A party opposing a properly
supported summary judgment motion must “marshal and present the court with the evidence [he]
contends will prove [his] case.” Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir.
2010). “[I]nferences relying on mere speculation or conjecture will not suffice.” Stephens v.

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Erickson, 569 F.3d 779, 786 (7th Cir. 2009) (citation omitted). Summary judgment is the “put up
or shut up moment in a lawsuit, when a party must show what evidence it has that would
convince a trier of fact to accept its version of events.” Johnson v. Cambridge Indus., Inc., 325
F.3d 892, 901 (7th Cir. 2003).
The Plaintiff has not established any of the Knight factors, or any other signs of control,
that Defendant exercised over his employment with H&E. Without a joint employer relationship,
the Defendant is not liable to the Plaintiff under Title I of the ADA. See Love, 779 F.3d at 705
(“Here, none of these considerations support [the Plaintiff]’s argument,”); cf. Dunn v. Pratt
Indus. (U.S.A.), Inc., Case No. 2:12-cv-269, 2016 WL 7048892, *6 (N.D. Ind. Dec. 5, 2016)
(finding that evidence of a general contractor/subcontractor relationship, with functional ability
to fire, was enough to deny summary judgment as the Defendant had not established no jointemployer relationship).

CONCLUSION
For the reasons stated above, the Court GRANTS the Defendants’ Motion for Summary
Judgment [ECF No. 33] as to all the Plaintiff’s claims. The Clerk is ORDERED to enter
judgment in favor of the Defendant and against the Plaintiff.
Entered January 2, 2019.
s/ Theresa L. Springmann
CHIEF JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT

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