Swoope v. Gary Community School Corporation et al

Filing 156

ORDER granting in part and denying in part 126 Motion for Summary Judgment; denying 144 Rule 12(f) Motion to Strike ; denying 145 Rule 12(f) Motion to Strike ; granting 146 Motion for Leave to File; denying 150 Rule 12(f) Motion to Strike. Furthermore, in its discretion, the Court STRIKES the documents at the following docket entries sua sponte: DE 135 and DE 136 through 143 .Signed by Judge Rudy Lozano on 3/30/15. (eml)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DR. DAVID L. SWOOPE, JR.
Plaintiff,
vs.
GARY COMMUNITY SCHOOL
CORP. et al.,
Defendants.

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Case No. 2:10-CV-423

OPINION AND ORDER
This matter is before the Court on the: (1) “Motion for
Summary Judgment,” filed by Defendants, Gary Community School
Corporation,

Dr.

Myrtle

Campbell,

and

Dr.

Cordia

Moore

(collectively “Defendants”), on June 30, 2014 (DE #126); (2)
“Defendants’ Motion to Strike Doc 135,” filed by Defendants on
October 2, 2014 (DE #144); (3) “Defendants’ Motion to Strike
Documents 136, 136-1, 137, 138, 138-1, 138-2, 138-3, 138-4, 139,
139-1, 139-2, 139-3, 140, 140-1, 140-2, 140-3, 140-4, 141, 141-1,
141-2, 141-3, 142, 142-1, 142-2, 143, 143-1,” filed by Defendants
on October 2, 2014 (DE #145); (4) “Verified Motion for Leave to
File

Plaintiff’s

Judgment

Response

Instanter,”

filed

to

Defendants’

by

Plaintiff,

Motion

for

Dr.

David

Summary
Swoope

(“Swoope”), on October 8, 2014 (DE #146); and “Defendants’ Motion
to Strike Document[s] 146, 147, 148,” filed by Defendants on
October 22, 2014 (DE #150.)

For the reasons set forth below, the

Motion for Summary Judgement (DE #126) is GRANTED IN PART AND
DENIED IN PART as set forth in the body of this Order, the
Defendants’ various Motions to Strike (DE #144, #145, & #150) are
DENIED, and Swoope’s Motion for Leave to File Instanter (or, more
accurately, nunc pro tunc) (DE #146) is GRANTED.

Furthermore, in

its discretion, the Court STRIKES the documents at the following
docket entries sua sponte: DE #135 and DE #136 through #143.

BACKGROUND
Swoope filed this action against several defendants alleging
various

federal

claims

including

gender

discrimination,

retaliation, harassment, and deprivation of due process.

Swoope

also raised various state law claims including breach of contract,
defamation, and tortious interference with his contract.

On April

26, 2011, this Court entered an opinion and order dismissing all
claims against Defendants Dr. Stanley Wigle and Dr. Vernon Smith.
(See DE #24.) The claims against Defendants, Gary Community School
Corporation (“GCSC”), Dr. Myrtle Campbell (“Campbell”), and Dr.
Cordia Moore (“Moore”), remained pending.

On March 24, 2012,

Swoope moved to amend his complaint and was granted leave to amend.
(DE #66 & #72.)

He filed his amended complaint on May 17, 2012,

and Defendants moved to dismiss Swoope’s amended complaint for
failure to state a claim.

(DE #74 & #76.)

On August 28, 2012,

this Court granted the motion to dismiss in part and denied it in
2

part.

(DE #82.)

Counts I and II were dismissed with prejudice,

and Counts III-VII remained pending.

(Id.)

On February 1, 2013,

Swoope sought leave to file a second amended complaint. (DE #100.)
He was granted leave to do so on April 1, 2013, and the second
amended complaint was docketed several days later.
106.)

(DE #105 &

Defendants filed an answer and counterclaim against Swoope

on June 11, 2013.

(DE #107.)

Following a lengthy discovery period, Defendants filed the
instant motion for summary judgment on June 30, 2014.

(DE #126.)

Swoope requested and was granted an extension of time within which
to file his response.

(See DE #132.)

The Court ordered that

Swoope’s response was to be filed by September 30, 2014, and
cautioned him that no further extensions were to be forthcoming.
(Id.)

On September 29, 2014, a document entitled “Violation of

Human Rights and Constitutional Rights of Dr. Daoud Swoope Jr. El,
Formerly known as Dr. David Swoope Jr.” was filed by a person who
referred to himself as “Prime Minister GSKS: Durriyyah Bey of the
Moorish
National

Nation-Moorish
Movement

Science

Regency

Temple

of

Headquarters”

Minister and Spiritual Advisor.”

America

and

(DE #135.)

Divine

Swoope’s

and

“Diving

On October 1, 2014,

Swoope’s attorney, Douglas Grimes (“Grimes”), filed a response in
opposition to the motion for summary judgment which spanned several
docket entries.

(See DE #136-#143.)

The next day, Defendants

filed a motion to strike the filing of Durriyyah Bey, arguing that

3

it was immaterial, impertinent, and scandalous as well as a motion
to strike Swoope’s response, arguing that it was untimely.
#144 & #145.)

(DE

On October 8, 2014, Swoope filed a motion for leave

to file his response to the summary judgment motion instanter,
which

expressed

deadline.

Grimes’

difficulties

in

meeting

the

original

(DE #146; see also exhibits and response brief at DE

#147-#148.)

On October 15, 2014, Swoope also filed a response to

Defendants’ motions to strike, arguing that those documents should
not be stricken but rather should be construed as “supplementation”
of the summary judgment record as a whole.

(DE #149.)

On October

22, 2014, Defendants filed another motion to strike, arguing that
all documents filed after September 30, 2014, should be stricken as
being redundant and/or untimely.

(DE #150.)

That same day,

Defendants also replied to their original motion to strike, arguing
again that the filings were indeed untimely.

(DE #151.)

Finally,

on November 5, 2014, Swoope filed a response to Defendants’ motion
to strike, arguing that Defendants’ motions were improper and
unwarranted.

(DE #152.)

Defendants failed to file a reply in

support of their motion for summary judgment.

DISCUSSION
Preliminary Issues
Before delving into the merits of the case, the Court must
address the flurry of motions filed by the parties related to the

4

admissibility of various documents.

In a nutshell, Swoope filed

his response to the motion for summary judgment one day late due to
Grimes’ alleged scheduling conflicts and time management issues.
Defendants responded with several motions to strike, all of which
were filed pursuant to Federal Rule of Civil Procedure 12(f).
Court agrees with Swoope that this is procedurally improper.

The
Rule

12(f) provides that a district court “may strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter.” Fed. R. Civ. P. 12(f). However, a response to
a summary judgment motion is not a pleading, and bringing a motion
to strike it under Rule 12(f) is procedurally improper.

See Fed.

R. Civ. P. 7(a) (defining pleadings finitely with a list that does
not include motions or responses). Furthermore, a motion to strike
under Rule 12(f) is untimely at this stage in the proceedings. See
Fed. R. Civ. P. 12(f)(2) (party may move to strike “within 21 days
after being served with the pleading” if no response is allowed).
As such, the Court DENIES Defendants’ motions to strike. (DE #144,
#145, & #150.)
After due consideration, and noting that the interests of
justice will be served by allowing the consideration of evidence
found within Swoope’s summary judgment response brief and exhibits,
the Court GRANTS Swoope’s motion for leave to file those documents
nunc pro tunc.

However, that ruling shall only apply to the

documents filed by Swoope on October 8, 2014.
5

(DE #147 & #148.)

The documents filed by Swoope on October 1, 2014, are substantively
identical to those filed on October 8, 2014.

For purposes of

clarity on the docket, those documents (which were erroneously
filed as multiple responses) are hereby STRICKEN sua sponte.

(DE

#136 through #143.)
Finally, in its discretion, the Court will STRIKE the document
filed by the person who referred to himself as “Prime Minister
GSKS: Durriyyah Bey of the Moorish Nation-Moorish Science Temple of
America Divine and National Movement Regency Headquarters” and
Swoope’s “Diving Minister and Spiritual Advisor,” because he is
neither an attorney nor a party to this case and has no authority
to file responses on behalf of Swoope.

(DE #135.)

Standard
Summary judgment must be granted when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”

FED. R. CIV. P. 56(a).

A genuine

dispute of material fact exists when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
every

dispute

between

the

parties

makes

summary

Not

judgment

inappropriate; “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude
the entry of summary judgment.”
6

Id.

In determining whether

summary judgment is appropriate, the deciding court must construe
all facts in the light most favorable to the nonmoving party and
draw all reasonable inferences in that party’s favor. Ogden v.
Atterholt, 606 F.3d 355, 358 (7th Cir. 2010).

“However, our favor

toward the nonmoving party does not extend to drawing inferences
that are supported by only speculation or conjecture.”

Fitzgerald

v. Santoro, 707 F.3d 725, 730 (7th Cir. 2013) (citing Harper v.
C.R. Eng., Inc., 687 F.3d 297, 306 (7th Cir. 2012)).
A party opposing a properly supported summary judgment motion
may not rely on allegations or denials in her own pleading, but
rather must “marshal and present the court with the evidence she
contends will prove her case.” Goodman v. Nat’l Sec. Agency, Inc.,
621 F.3d 651, 654 (7th Cir. 2010).

If the nonmoving party fails to

establish the existence of an essential element on which he or she
bears the burden of proof at trial, summary judgment is proper.
Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006).
While the initial burden of production “to inform the district
court why a trial is not necessary” lies with the movant, the
requirements imposed on the moving party “are not onerous” when it
is the nonmovant who “bears the ultimate burden of persuasion on a
particular issue.”
Cir. 2013).

Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th

A party may move for summary judgment based on either

“affirmative evidence that negates an essential element of the
nonmoving party’s claim” or by the other approach of “asserting

7

that the nonmoving party’s evidence [was] insufficient to establish
an essential element of the nonmoving party’s claim.”
(citation and internal quotation marks omitted).
acceptable under the current rules.

Id. at 1169

Both methods are

Id.

Facts
On February 28, 2006, the GCSC Board of School Trustees
approved

Swoope’s

appointment

Principal at Wirt Highschool.

to

the

position

of

(Letter, DE #127-4.)

Assistant

Although he

was hired as a non-statutory administrator, GCSC presented Swoope
with a teacher contract for the school year beginning on July 1,
2006, and continuing until June 30, 2007; he signed the contract on
August 30, 2006.
p. 5.)

(Contract, DE #147-17; Swoope Dep., DE #127-20,

Swoope states in his response brief that he was “not [an]

at will employee.”

(DE #148, p. 7.)

To support that assertion, he

cites to Exhibit 17, which contains the original teacher contract
as well as an email dated October 5, 2009, from a person named
Julie Slavens1 to “Ragen, Dr. Campbell, and Darren.”
also Contract & Email, DE #147-17, pp. 1-4.)

(Id.; see

The email does not

mention Swoope by name or specifically identify him in any way.
(Email, DE #147, 17, pp. 2-4.)

However, it does reference non-

statutory and non-certified administrators in general, and it

1

It is unclear who this person is, and Swoope’s brief does nothing to
clarify the matter.

8

points out that those employees “have not been given a written
contract since June 30, 2007.

But each year the board has voted to

retain these administrators with a slight increase in salary.

Due

to this board action each year, the contract for each of these
administrative positions has continued.”

(Id. at 2.)

It is

undisputed that Swoope’s initial contract was renewed beyond its
original term; on December 8, 2008, a date well past the initial
contract’s terms, GCSC sent Swoope a “preliminary notification”
that it was “considering a decision not to renew [his] contract
based on the configuration of schools, budget reductions and school
closings.” (Notification, DE #127-6.)2 The notification indicates
that “[y]ou will receive final notice of the Board’s decision in
thirty (30) days from the date of this letter per Indiana Code 2028-8-3.”

(Id.)

No such final notice is included in the record.3

Swoope’s last day of employment with GCSC was July 31, 2009.
(Swoope Dep., DE #127-20, p. 4.)
At the time he was originally hired by GCSC, Swoope did not

2

Based on the aforementioned materials, it would
very least: (1) Swoope’s original contract ran from July
2007; (2) his contract was renewed from July 1, 2007, to
(3) his contract was again renewed from July 1, 2008, to
3

appear that, at the
1, 2006, to June 30,
June 30, 2008; and
June 30, 2009.

Defendants’ brief points to a letter approved by Campbell that stated
“all administrators contracts with the GCSC expired, effective June 30, 2009.
. . . However, you were retained on a non-contractual at will, daily basis
from July 1, 2009 to July 31, 2009.” (See DE #127, p. 11 (citing to Exhibit
11, Exhibit 6.)) The Court notes that Exhibit 6 is the previously mentioned
“preliminary notice” and Exhibit 11 is not contained within the record;
included with Defendants’ motion are Exhibits 1, 2, 3, 4, 5, 6, 7, 9, 15, 16,
17, 19, 20, 21, 22, 23, 24 and unmarked Exhibits A, B, and C. (See DE #127-1
through #127-20 & DE #128.)

9

possess an Indiana Administrative License (“License”), but he
agreed to complete the necessary course work at Indiana University
Northwest (“IUN”) to obtain it as soon as possible.
DE #147, p. 2.)

(Swoope Aff.,

In the interim, Swoope obtained an emergency

permit related to his position as Assistant Principal.

(Id.)

Swoope’s original emergency permit was issued by the State of
Indiana on April 6, 2006, and expired on June 30, 2006.
DE #127-12.)

His first renewal of that permit was issued on

September 21, 2006, and expired on June 30, 2007.
#127-13.)

(Permit,

(Permit, DE

His second renewal of that permit was issued on October

30, 2007, and expired on June 30, 2008.

(Permit, DE #127-14.)

Prior to the actual expiration of the second renewal permit, GCSC
advised Swoope that the State Department of Education would not
issue him another emergency permit in his current position because
of its mandatory caps.

(Letter, DE #127-1.)

The letter indicated

that, without exception, emergency permits were limited to one
original and two renewal permits and that “[a]fter the second
renewal (or third year), the emergency permit will not be renewed.”
(Id.)

However, as noted above, it is undisputed that GCSC did

indeed continue to employ Swoope well beyond the expiration of the
last renewal permit.
In an attempt to gain the proper License, Swoope enrolled in
the

Administrative

Licensure

(Swoope Aff., DE #147, p. 2.)

Program

at

IUN

(the

“Program”).

According to Swoope, prior to and

10

during his enrollment in the program, all of the other Program
candidates employed by GCSC were female.

(Id.)

Dr. Vernon Smith

(“Smith”), a professor at IUN, was the coordinator of the Program
and was Swoope’s advisor. (Swoope Aff., DE #147, p. 2; Smith Dep.,
DE #127-19, p. 3.)

Swoope was given a syllabus and planning sheet

that, combined, provided him with information regarding required
courses and timing.

(Smith Dep., DE #127-19.)

One of the courses

that Swoope needed to complete in order to graduate from the
Program and obtain his License was the A695.
127-19, p. 5.)

(Smith Dep., DE #

The A695 experience/practicum had to be done in

both an elementary setting and a secondary setting.

(Id.)4

Swoope successfully completed the A695 secondary setting
experience/practicum at Wirt High School in Gary, Indiana.

(Id.)

He then began the A695 elementary setting experience/practicum at
Marquette Elementary School in Gary, Indiana during the spring
semester of 2009.5

(Swoope Aff., DE #147, p. 6.)

Swoope attended

three practicum sessions at Marquette Elementary School before he
was

informed

by

Moore

that

he

could

no

longer

perform

his

experience/practicum there because he had violated GCSC’s district
policies, procedures, and protocol. (Id. at p. 3; Letter, DE #14720.)

Specifically, on February 10, 2009, Swoope was told that he

4
One semester of the experience/practicum needed to be completed in an
elementary setting, and one semester needed to be completed in a secondary
setting. (Smith Dep., DE #127-19, p. 5.)
5

2009.

Swoope’s start date at Marquette Elementary School was January 28,
(Swoope Aff., DE #147, p. 6.)

11

did not submit the proper paperwork or gain the requisite approval
from

Moore

and/or

experience/practicum

Campbell

at

before

Marquette

commencing

Elementary

School.

the
(Id.)

However, according to Judy Dunlap (“Dunlap”), the principal of Wirt
High School, previous Program candidates who interned at that
school (five total over the course of nine and a half years) were
not required to get approval from the administration prior to
starting an experience/practicum.

(Dunlap Letter, DE #147-5.)

In

her letter to Moore, Dunlap pointed out that the intern prior to
Swoope, Ms. Ava Ligon, did not need to get approval from GCSC and
had successfully completed the A695 experience/practicum, gained
her License, and became a principal within GCSC, despite missing
one day a week in the building for an entire semester.

(Id.)

According to Dunlap, she had requested that Swoope be allowed to
use

his

vacation

days

to

complete

the

Program,

and

she

was

surprised that the request was not authorized as it had been for
past interns.

(Id.; see also DE #147-4.)

Swoope ended up missing

several weeks of practicum sessions before arranging to transfer
his experience/practicum to Evans Elementary School in Hobart,
Indiana.
complained

(Memo, DE #147-6; Swoope Dep., DE #127-20, p. 20.)
to

Moore

and

Bill

Cook

about

the

He

discriminatory

treatment by Moore and Campbell. (Swoope Aff., DE #147, pp. 1, 3.)

12

Although

Swoope

states

in

his

response

brief6

that

he

completed all the required courses for the Program, the testimony
that he cites in support of his position does not support that
assertion.

In full context, Smith’s testimony is as follows:
Q:

A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:

6

To your knowledge did Dr. Swoope complete
all the required classes for the K
through 12 Indiana Licensure Program?
. . . .
He did not.
Which ones did he not complete?
A695, second – our spring semester.
Anything else?
No.
What was the A695?
For him is was the elementary experience
and the practicum.
Which did he not have, or did he not have
either?
What -You
said
the
practicum
and
the
experience. Was that one in the same?
The practicum is the experience.
That’s one in the same?
Yeah.
Okay. Why didn’t he have the experience?
He did not complete it.
He had the
experience, but he did not complete it.
Okay.
When you say “he had the
experience,” what do you mean?
He began the class.
He took it upon
himself to do some things that caused him
to receive an incomplete in the class.
What things did he do to cause and
receive an incomplete?
He shared with the professor at one
location.
What professor?
Me.
Okay. All right.
One location for his experience, which I
had to approve. He end (sic) up doing it

See Response Brief ¶ 3, DE #148, pp. 1-2.

13

in another building. He did not complete
the requirements of the experience.
Anything else?
He distorted the records on his log.
Anything else?
He was given the opportunity to take the
class again. He chose not to.

Q:
A:
Q:
A:

(Smith Dep., DE #127-19, p. 5.)7

Swoope states that he was not

aware he had the option of retaking the class until much later.
(Swoope Aff., DE #147, p. 6.)
As to the time log issues, Swoope did turn in the log on May
22, 2009, but Smith indicated that he still had several concerns
including

date

and

formatting

issues,

problems, and lack of specifics.

inconsistences,

(DE #127-17, p. 1.)

timing

Smith also

noted that he “need[ed] to know where the field was completed since
I only approved Marquette Elementary School.

I understand it was

at Evans and even though I did not approve this site, I am will to
accept it.”

(Id.)

Swoope has not cited to any evidence that he

submitted a log that was ultimately satisfactory to Smith, nor has
he cited to any evidence that his grade for the spring semester of
the A695 course was ever changed to a complete by Smith.8

7

Swoope’s brief cites to Smith’s incomplete deposition testimony found
at DE #147-2, pp. 3-5; for clarity, the Court has cited to that same
deposition testimony as presented in full by Defendants.
8

In his brief, Swoope states that he “successfully completed his
elementary administrative practicum at River Forest School District, Evans
Elementary School, Lake Station, Indiana in 2009,” but the only citations he
provides are to Exhibits 11 and 12. (See Response Brief ¶ 26, DE #148, p. 7.)
Exhibit 11 is an “Administrator’s Evaluation of Practicum Student” written by
Robert Koval, and Exhibit 12 is Swoope’s Evans Elementary Activity Log that
was initialed by “RK.” (See DE #147-11 & DE #147-12.) Neither document
supports Swoope’s contention that Smith himself approved the final log or that
Smith himself determined that Swoope had adequately completed the A695 course.

14

As noted above, Swoope’s last day of employment with GCSC was
July 31, 2009.

(Swoope Dep., DE #127-20, p. 4.)

The preliminary

notification sent to Swoope by GCSC indicated that the potential
decision to not renew his contract was due to the “configuration of
schools, budget reductions and school closings.” (Letter, DE #1276.) Although he was informed by Campbell that he was not qualified
for further employment within the district, Swoope applied for the
dean of students position at Wirt-Emerson High School after his
termination.

(Id. at 3-4.)9

Federal Claims
Defendants argue that summary judgment should be granted as to
Swoope’s discrimination claims brought under 42 U.S.C. sections
1983, 1981, 1981A, 1988 and Title VII of the Civil Rights Act of
1964 and 1991, 41 U.S.C. section 2000e, et. seq.
8-10.)10

(See DE #127, pp.

Swoope’s response is devoid of any argument or analysis.

9

Beginning on page eight of his statement of genuine issues, Swoope
fails to cite to the record in any manner to support his contentions. (DE
#148, pp. 8-9.) As such, these facts have not been included or considered by
the Court. See Gross v. Town of Cicero, Ill., 619 F.3d 697, 702-03 (7th Cir.
2010) (collecting cases). Therefore, as in Gross, this Court “strikes any of
the parties’ factual assertions, in any section of their briefs, that lack
direct citation to easily identifiable support in the record.”
10

Confusingly, and without any analysis whatsoever, Defendants cite to
Federal Rule of Civil Procedure 12(h)(3) and state that the Court should
dismiss the second amended complaint sua sponte because Swoope has failed to
establish subject matter jurisdiction. (DE #127, p. 6.) It is not clear to
the Court why Defendants believe the Court lacks subject matter jurisdiction
over a case premised on violations of various federal discrimination laws. In
any event, the Court DECLINES to dismiss the case sua sponte on these grounds.

15

He provides several pages of facts labeled “Statement of Genuine
Issues” followed by several pages of rote boilerplate law.
generally DE #148.)
Protection

Clause

(See

His boilerplate law references the Equal
of

the

Fourteenth

Amendment,

provides

a

historical background of section 1983, and generally describes the
Monell case.

(See DE #148, pp. 10-12.)

He does not make any

effort whatsoever to apply the facts of this case to relevant case
law.

Failure to respond to or properly develop an argument in

response to an opposing side’s well-supported position results in
forfeiture.

See Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th

Cir. 2011) (“[w]e apply [the forfeiture] rule where a party fails
to develop arguments related to a discrete issue”); Arlin–Golf, LLC
v. Vill. of Arlington Heights, 631 F.3d 818, 822 (7th Cir. 2011)
(where the party “cited no relevant legal authority to the district
court to support the proposition . . . the argument is waived");
Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010)
(“Failure to respond to an argument . . . results in waiver.”);
Humphries v. CBOCS W., Inc., 474 F.3d 387, 407 (7th Cir. 2007) (“We
agree with the district court’s determination that [the plaintiff]
waived (forfeited would be the better term) his discrimination
claim by devoting only a skeletal argument in response to [the
defendant’s] motion for summary judgment.”).

This Court need not

consider any argument that is not supported by relevant law.

See

Matthews v. Waukesha Cnty., 759 F.3d 821, 826 (7th Cir. 2014)

16

(citing Nelson v. Napolitano, 657 F.3d 586, 590 (7th Cir. 2011)
(“Neither the district court nor this court are obliged to research
and construct legal arguments for parties, especially when they are
represented by counsel.”)).

Therefore, throughout this order,

where Defendants have properly supported their motion for summary
judgment (and Swoope has failed to respond in a meaningful way),
that motion shall be granted as discussed more fully below.
Unfortunately, this is easier said than done, as Defendants’ brief
in support of their summary judgment motion is also not a beacon of
clarity.
Section 1983 provides a federal cause of action any time an
individual, who, under color of state law, deprives another of any
right, privilege or immunity as provided by the Constitution and
laws of the United States.

42 U.S.C. § 1983.

A civil rights

plaintiff must specify whether suit is brought against a defendant
in their official capacity, or in their individual capacity.

Hill

v. Shelander, 924 F.2d 1370, 1372 (7th Cir. 1991).
Personal-capacity
suits
seek
to
impose
personal liability upon a government official
for actions he takes under color of state law.
Official-capacity
suits,
in
contrast,
generally represent only another way of
pleading an action against an entity of which
an officer is an agent.
As long as the
government entity receives notice and an
opportunity to respond, an official-capacity
suit is, in all respects other than name, to
be treated as a suit against the entity.
Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (internal citations

17

and quotation marks omitted).
A

plaintiff

may

bring

a

section

1983

action

against

a

municipality; however, because respondeat superior liability is not
applicable, the plaintiff must provide evidence of an “‘official
policy’ or other governmental custom that not only causes but is
the

‘moving

rights.”

force’

behind

the

deprivation

of

constitutional

Teesdale v. City of Chicago, 690 F.3d 829, 833 (7th Cir.

2012) (citing Estate of Sims v. Cnty. of Bureau, 506 F.3d 509, 514
(7th Cir. 2007)); see also Monell v. Dep’t of Social Servs., 436
U.S. 658, 694 (1978).
through

“(1)

an

Municipal liability can be established

express

policy

that

causes

a

constitutional

deprivation when enforced; (2) a widespread practice that is so
permanent

and

well-settled

that

it

constitutes

a

custom

or

practice; or (3) an allegation that the constitutional injury was
caused by a person with final policymaking authority.”
(citing Estate of Sims, 506 F.3d at 515).

Id. at 834

The Seventh Circuit has

clarified that:
[i]t doesn’t matter what form the action of
the responsible authority that injures the
plaintiff takes. It might be an ordinance, a
regulation, an executive policy, or an
executive act (such as firing the plaintiff).
The question is whether the promulgator, or
the actor, as the case may be—in other words,
the decisionmaker—was at the apex of authority
for the action in question.
Gernetzke v. Kenosha Unified School Dist. No. 1, 274 F.3d 464, 468
(7th Cir. 2001).

18

Citizens whose constitutional rights have been violated by
public officials may also sue those officials in their individual
capacities.

Fleming v. Livingston County, Ill., 674 F.3d 874, 878

(7th Cir. 2012).
action

unless

“An individual cannot be held liable in a § 1983
he

caused

or

participated

in

an

alleged

constitutional deprivation.” Jenkins v. Keating, 147 F.3d 577, 583
(7th Cir. 1998) (citing Wolf–Lillie v. Sonquist, 699 F.2d 864, 869
(1983) (emphasis in original)).

Liability will not attach to a

supervisory official absent evidence of a “causal connection, or an
affirmative link, between the misconduct complained of and the
official sued.”

Wolf-Lillie, 699 F.2d 864, 869 (7th Cir. 1983).

With regard to section 1983 liability generally, Defendants
simply state that Swoope’s “complaint does not make any allegation
that anyone was acting under the color of law when [Swoope] was
allegedly deprived of his constitutional rights.

Based on this,

[Swoope] has failed to state a 1983 claim for which relief can be
granted.” (DE #127, p. 8.) Defendants’ brief does not acknowledge
that Moore and Campbell are public officials or that GCSC is a
municipal corporation, does not refer to Monell, does not discuss
respondeat superior and the lack of any policy or custom, and does
not mention decision/policy making authorities.

While it seems

clear to the Court that any number of arguments could have been
made with regard to the lack of municipal and/or individual
liability under section 1983, those arguments were not made by

19

Defendants, and the Court will not do it for them.11
657 F.3d at 590.

See Nelson,

While the initial burden of production is not

onerous, the movant is required to adequately and clearly inform
the court why summary judgment is proper before the burden is
shifted to the non-movant.

See Modrowski, 712 F.3d at 1168.

Accordingly, summary judgment on these grounds is DENIED.
As to Swoope’s due process claims,12 Defendants argue that
Swoope’s complaint should be “dismissed in its entirety” because
Swoope was an at-will employee with no contractual interest in his
position.

Section 1983 provides a remedy to those alleging a

deprivation of liberty or property without due process of law in

11
Citing to Indiana Code section 20-26-5-4, Defendants argue that the
official capacity claims against Moore and Campbell should be dismissed
because the proper party is GCSC. (DE #127, p. 7.) However, the Court notes
that, while the caption of Swoope’s second amended complaint does state that
Moore and Campbell are being sued in both their individual and official
capacities, the body of Swoope’s second amended complaint makes it clear that
Moore and Campbell are only being sued in their individual capacities. (See
DE #106, p. 2.) To the extent that Moore and Campbell were sued in their
official capacities, the Court acknowledges that those claims are properly
treated as a suit against GCSC. See Guzman v. Sheahan, 495 F.3d 852, 859 (7th
Cir. 2007) (“An official capacity suit is tantamount to a claim against the
government entity itself.”)
Defendants also cite specifically to Indiana Code section 34-13-3-5C to
argue that all claims against Moore and Campbell should be dismissed because
the second amended complaint did not allege that Moore or Campbell “committed
any criminal acts; or acted maliciously, willfully and wanton or calculated to
benefit them personally.” (DE #127, p. 7.) While this is relevant to
Swoope’s state law claims as will be discussed below, this does not have any
specific bearing on Swoope’s federal claims.
12

In Count VII of his second amended complaint, Swoope states that
“[t]he [board] policy of continuing the employment of Swoope and other nonstatutory administrators without a new written contract each year created a
constitutional property and liberty interest in his position and a reasonable
expectation of continued employment under the Fourteenth Amendment to the
United States Constitution. (DE #106, p. 19.) Swoope further states
“[c]hanging Swoope’s employment status, without due process, to that of a
daily at-will employee vioalted Swoope’s reasonable expectation of continued
employment.” Id. at 20.

20

violation of the Fourteenth Amendment.

Lim v. Central DuPage

Hosp., 871 F.2d 644, 645 (7th Cir. 1989).

“To demonstrate a

procedural due process violation, the plaintiffs must establish
that

there

is

‘(1)

a

cognizable

property

interest;

(2)

a

deprivation of that property interest; and (3) a denial of due
process.’”

Hudson v. City of Chicago, 374 F.3d 554, 559 (7th Cir.

2004) (citing Buttitta v. City of Chicago, 9 F.3d 1198, 1201 (7th
Cir.

1993)).

Under

the

due

process

clause,

property

is

an

“interest to which a government has given someone an entitlement.”
Patterson v. Portch, 853 F.2d 1399, 1405 (7th Cir. 1988). However,
courts have held that the person must have a “legitimate” claim to
an entitlement as opposed to “a hope or expectation.”

Blackout

Sealcoating, Inc. v. Peterson, 733 F.3d 688, 690 (7th Cir. 2013);
see also Confederation of Police v. City of Chicago, 547 F.2d 375,
376 (7th Cir. 1977) (“[T]he existence of a property interest in
public employment cognizable under the due process clause depends
on whether state law has affirmatively created an expectation that
a particular employment relationship will continue unless certain
defined events occur.”).

As Defendants point out:

Indiana recognizes the distinction between
employees who are retained for a definite
duration or subject to contract, and employees
whose employment is of indefinite duration,
and may terminate at the will of the employer
for any reason. This distinction between a
contractual and an at-will employee gains
significance in the context of an employee’s
termination. While an employee of definite
duration may possess a cause of action for
21

breach of contract if an employer fires him in
violation of the employment agreement, no such
clear solution exists for the wrongfully
terminated employee-at-will.
Remington Freight Lines, Inc. v. Larkey, 644 N.E.2d 931, 939-40
(Ind. Ct. App. 1994).
Here, Defendants argue that Swoope need not have been afforded
any due process protections because he was an at-will employee. In
support of their position, Defendants cite to a letter dated July
29, 2009, which allegedly stated that all administrative contracts
with GCSC expired as of June 30, 2009, and that Swoope was retained
on a non-contractual basis from July 1, 2009, to July 31, 2009.
(See DE #127, p. 11, citing to Exhibits 6 & 11.)

However, as noted

above in the facts section of this order, that letter was not
included as evidence with Defendants’ submissions.

It is clear

from the record that Swoope’s original employment contract began on
July 1, 2006, and that its original expiration date was June 30,
2007.

However, it is undisputed that the contract was renewed by

GCSC beyond that term. Swoope was given “preliminary notification”
that the board was considering not renewing his contract due to
“configuration of schools, budget reductions, and school closings”
on December 8, 2008,13 and his last day of employment was July 31,
2009.

Importantly, what is not clear is what happened in between

those two dates.

13

In any event, Swoope has presented evidence that

(See DE #127-6.)

22

the board voted to retain the administrators in the district each
year since 2007 without written contracts.14

Giving Swoope the

benefits to which he is entitled, it is reasonable to infer that
his contract was renewed by the board in one year increments from
July 1, 2007, to June 30, 2008, and then again from July 1, 2008,
to June 30, 2009.
is

also

Without admissible evidence to the contrary, it

reasonable

to

infer

that,

despite

the

“preliminary

notification” sent to Swoope in December of 2008, his continued
employment with GCSC after on and after July 1, 2009, coupled with
the board’s prior renewal actions, created a reasonable expectation
of continued employment as a contractual employee through June 30,
2010.

Genuine disputes exist as to Defendants’ assertion that

Swoope was retained “at-will” from July 1, 2009, to July 31, 2009,
and, as such, summary judgment is DENIED as to Swoope’s due process
claims.15
Finally, as to Swoope’s discrimination claims, Defendants
argue that Swoope cannot prove any discriminatory action on the
part of Defendants because Swoope was “not subjected to any adverse
14

(See DE #147-17, pp. 1-4.)

15

Defendants hung their hat on the contention that Swoope was an atwill rather than contractual employee, and their brief failed to address
whether Swoope had actually been afforded any due process measures prior to
his termination. The due process clause requires that people be “given some
kind of notice and afforded some kind of hearing.” Blackout Sealcoating,
Inc., 733 F.3d at 691. While the “preliminary notification” letter addressed
such procedural measures, Defendants do not attempt to analyze the sufficiency
of those measures, nor do they provide evidence that Swoope failed to take
advantage of those measures. Again, the record is unclear as to what occurred
between December 8, 2008, and July 29, 2009, and the Court is not required to
fill in the blanks for the parties.

23

employment

action”

favorably

than

similarly situated employees outside his protected class.”

(DE

#127, pp. 8-10.)

and

was

“not

treated

less

In their brief, Defendants cite generally to the

direct and indirect methods of proving discrimination and state
simply:
The problem is that Swoope was unable to
obtain
the
proper
license
to
be
an
administrator. Swoope reached the capacity of
emergency permits. Swoope had to complete the
requirements of Indiana University Northwest
in order to obtain his permanent teacher’s
license. Swoope did not change the incomplete
to a complete so that he could finish his
practicum. Dr. Smith had issues with the log
and Swoope’s conduct. Therefore, the school
had a non discriminatory reason to not make
Swoope an administrator. Swoope cannot show
either directly or indirectly that the school
discriminated against him.
Swoope had an
obligation to obtain his license in order to
remain an administrator. Swoope failed to do
this. Even though Swoope did not complete his
practicum at Marquette he finished at another
school.
However, Swoope’s performance was
deemed unsatisfactory by Dr. Smith and Swoope
was given an incomplete.
(DE #127, pp. 9-10.)16

Swoope has marshaled evidence in opposition

to Defendants’ argument in the “Statement of Genuine Issues”
section of his response brief, but he has failed to provide any
relevant argument or analysis whatsoever. (See generally DE #148.)
Because the briefing of both parties is so poor in relation to this
issue, the Court is in a bit of a quandary.

16

On the one hand, as

Defendants also provide some irrelevant information related to Smith
and Wigle’s actions; those parties were previously dismissed by this Court.

24

noted above, the movant has the initial burden of informing the
Court why summary judgment is appropriate. See Modrowski, 712 F.3d
at 1168.

On the other hand, if the movant meets that requirement,

the non-movant bears the ultimate burden of persuasion.

Id.

Ultimately, while not required to craft arguments for either side,
keeping the burden-shifting principles above in mind, the Court
will do its best to dissect the parties’ arguments and evidence
appropriately.
Throughout

See Nelson, 657 F.3d at 590.
his

second

amended

complaint,

Swoope

alleges

various forms of reverse17 sexual discrimination including disparate
treatment, retaliation, and failure to hire.

For purposes of this

motion, only Swoope’s disparate treatment and retaliation claims
are at issue.18

17

As neither party discusses the fact that Swoope’s reverse
discrimination claims may be subject to different prima facie case standards,
the Court will not go into detail for purposes of this motion either. See
generally Mills v. Health Care Serv. Corp., 171 F.3d 450 (7th Cir. 1999).
18
As noted in more detail in the state law claims section below,
Swoope’s failure to hire claims were dismissed by this Court with prejudice
several years ago and have not been subsequently revived. (See DE #82, pp. 810) (noting that Swoope failed to respond to Defendants’ arguments that his
failure to hire claims should be dismissed and that Swoope had not adequately
alleged a proper claim.) Nothing in Swoope’s second amended complaint changes
that determination.
Furthermore, as discussed in this Court’s previous order, after careful
consideration of the amended complaint, the Court determined that Swoope’s
discrimination claims were for disparate treatment based on sex and
retaliation, not necessarily for hostile work environment. (See Id. at p. 11,
n.1.) Swoope’s addition of boilerplate legal conclusions in the second
amended complaint (such as “discriminatory actions” that “altered and
transformed the conditions of Swoope’s employment and for Swoope, created an
abusive, hostile, threatening, offensive work environment directed solely at
Swoope because he complained about how he, as a male, was treated differently
than females”) does not alter the Court’s previous analysis. Swoope’s gender
discrimination claims are properly categorized as disparate treatment and
retaliation. Importantly, Swoope does not allege (nor is there evidence in
the record to support such a finding) that any of Defendants’ actions were

25

Actionable discrimination under Title VII of the Civil Rights
Act can take many shapes, and the methodology of proving each
distinct type is slightly different.19

In general, a Title VII

gender discrimination claim is viable “if the plaintiff presents
either direct or circumstantial evidence of discrimination (the
‘direct

method’)

or

indirect

evidence

that

satisfies

the

three-part, burden shifting test outlined in the Supreme Court’s
decision in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93
S.Ct. 1817, 36 L.Ed.2d 668 (1973) (‘the indirect method’).” Phelan
v. Cook Cnty., 463 F.3d 773, 779 (7th Cir. 2006).

The bottom line

at the summary judgment stage is whether a reasonable jury could
find discrimination based on the evidence presented.

Ripberger v.

Corizon, Inc., 773 F.3d 871, 877 (7th Cir. 2014) (citing Coleman v.
Donahoe, 667 F.3d 835, 863 (7th Cir. 2012) (Wood, J., concurring)
(“In order to defeat summary judgment, the plaintiff one way or the
other

must

present

evidence

showing

that

she

is

in

a

class

protected by the statute, that she suffered the requisite adverse
action (depending on her theory), and that a rational jury could
conclude that the employer took that adverse action on account of

sufficiently severe or pervasive enough to create a hostile and abusive
atmosphere. See e.g. Lucero v. Nettle Creek Sch. Corp., 566 F.3d 720, 731
(7th Cir. 2009).
19

The Court notes that “[t]he substantive standards and methods of
proof that apply to claims of racial discrimination and retaliation under
Title VII also apply to claims under § 1981.” See Smith v. Bray, 681 F.3d
888, 896 (7th Cir. 2012) (citing Humphries v. CBOCS West, Inc., 474 F.3d 387,
403–04 (7th Cir. 2007), aff’d, 553 U.S. 442 (2008)).

26

her protected class, not for any non-invidious reason.”).

Gender Discrimination
In his second amended complaint, Swoope alleges, in part, that
he was discriminated against and treated differently because of his
gender when: (1) he was required by Moore to get pre-authorization
to complete the A695 experience/practicum aspect of the Program
within GCSC, while female interns were not; (2) he was not allowed
to use his vacation and/or personal leave time to complete the A695
experience/practicum aspect of the Program within GCSC, while
female interns were; (3) because of these actions by Moore (who was
working in concert with Campbell), he was prevented from completing
the A695 experience/practicum aspect of the Program within GCSC
which subsequently led, at least in part, to his failure to gain
his License; and (4) he was ultimately terminated by GCSC due to an
alleged revised administrative organizational chart that eliminated
his position.

In their motion for summary judgment, Defendants

cite to the general standards of proof and state that Swoope was
“not subjected to any adverse employment action” and was “not
treated less favorably than similarly situated employees outside of
his protected class.”
To prevail on a claim of gender discrimination under the
indirect method of proof, a plaintiff must first establish a prima
facie case by showing “that (1) she is a member of the protected

27

class; (2) she met her employer’s legitimate job expectations; (3)
she suffered an adverse employment action; and (4) similarly
situated employees outside of the protected class were treated more
favorably.”
2013).

Perez v. Thorntons, Inc., 731 F.3d 699, 704 (7th Cir.

If the plaintiff does this, the burden shifts back to the

employer to “introduce a legitimate, nondiscriminatory reason for
the employment action.”

Id.

If the employer provides such a

reason, the burden returns to the plaintiff to show that the
proffered reason was pretextual.

Id.

Here, by arguing only that Swoope was not subject to an
adverse

employment

action

and

that

he

was

not

treated

less

favorably than similarly situated employees, Defendants seemingly
concede that Swoope was a member of a protected class20 and that he
was performing well enough to meet their legitimate expectations.
As to an adverse employment action, Swoope has presented evidence
that he was ultimately terminated via an alleged reorganization.
He also pointed out that he was denied an opportunity to use his
vacation and/or personal leave time in the same manner that female
employees were.
enough.

For purposes of a prima facie case, this is

See Chaib v. Indiana, 744 F.3d 974, 982 (7th Cir. 2014)

(to establish that an adverse employment action occurred, “an
employee must show some quantitative or qualitative change in the
terms

or
20

conditions

of

his

employment

See footnote number 17 above.

28

or

some

sort

of

real

harm.”)).
The

analysis

is

a

bit

similarly situated employee.

more

difficult

with

regard

to

a

In order to create an inference of

discriminatory intent, a plaintiff using the indirect method of
proof must identify “similarly situated comparators because all
things being equal, if an employer takes an action against one
employee in a protected class but not another outside that class,
one can infer discrimination.”

Id. at 984 (internal quotation

marks and brackets omitted). That similarly situated employee must
be “directly comparable to her in all material respects.”
731 F.3d at 704.
possible

Perez,

“The purpose of the inquiry is to eliminate other

explanatory

variables,

such

as

differing

roles,

performance histories, or decisionmaking personnel, which helps
isolate the critical independent variable—discriminatory animus.”
Id. (internal quotations marks omitted). Swoope points to evidence
in the record of a Ms. Ava Lignon, who, according to Dunlap, was an
intern in the Program, did not need to get pre-authorization from
Moore to begin her A695 experience/practicum, missed one day a week
out of her building for a complete semester while completing the
Program, and eventually became a principal within the GCSC.

The

Court notes that Defendants chose not to file a reply, so while
there may be material differences between Ms. Ligon and Swoope,
Defendants have shed no light on the issue.

Thus, giving Swoope

the benefits to which he is entitled at this stage, the Court finds

29

that Swoope has presented evidence of a prima facie case of gender
discrimination.
The Court assumes when Defendants state that the “problem is
that Swoope was unable to obtain the proper license to be an
administrator,” they are attempting to articulate a legitimate,
non-discriminatory reason for the adverse employment action.

They

further state that “Swoope had an obligation to obtain his license
in order to remain an administrator [and he] failed to do this.”
The issue with this assertion is that there is evidence in the
record to indicate that reason may be pretextual.

The Seventh

Circuit has stated:
Pretext is a lie, specifically a phony reason
for some action, and thus, to show pretext, a
plaintiff must show that (1) the employer’s
nondiscriminatory reason was dishonest; and
(2) the employer’s true reason was based on a
discriminatory intent. This can be done with
either direct or indirect evidence.
If the
plaintiff proceeds to offer indirect evidence,
the plaintiff must show that the employer’s
reason is not credible or that the reason is
factually
baseless.
In
addition,
the
plaintiff must also provide evidence of at
least an inference that the real reason for
the
adverse
employment
action
was
discriminatory.
Fischer v. Avanade, Inc., 519 F.3d 393, 403 (7th Cir. 2008)
(internal citations, quotation marks, and brackets omitted).
Defendants have provided evidence that Swoope’s final renewal
permit expired on June 30, 2008.

They argue that the failure to

have either a valid temporary permit or an actual License was fatal

30

to his continued employment with GCSC. However, as outlined above,
it is undisputed that Swoope was employed with GCSC for over a year
after that expiration date.

Giving Swoope the benefit of all

reasonable inferences, he has presented evidence that his contract
term was renewed by the board from July 1, 2008, to June 30, 2009,
and again from July 1, 2009, to June 30, 2010, before it was cut
short by his termination on July 31, 2009. Taking those assertions
as true, Defendants renewed Swoope’s contract twice after they were
aware that his emergency permit had expired, so their reason that
his employment was solely contingent upon Swoope having a temporary
or permanent License could be viewed as less than credible.
Furthermore, the “preliminary notification” letter the board sent
to Swoope in December of 2008 only mentioned a potential decision
not

to

renew

Swoope’s

contract

because

of

“configuration

of

schools, budget reductions and school closings,” rather than any
issues with his License.
state

that

Swoope

was

And, twice in their brief Defendants
terminated

due

to

a

restructuring.21

Furthermore, while the Court agrees with Defendants that it is
undisputed that Smith made the ultimate decision to give Swoope an
incomplete in the A695 course and that Swoope never received his
License, Swoope has presented enough evidence that, if believed,
could

show

that

Defendants’

deliberate

actions

may

have

contributed, at least in part, to Swoope’s failure to gain that

21

See DE #127, pp. 5, 11.

31

License.
Although Swoope doesn’t use the word pretext (because, again,
his response brief is lacking in argument or analysis), he does
present evidence that, viewed in his favor, could show that
Defendants’

true

reason

for

his

termination

was

based

on

discriminatory intent. As noted above, Defendants’ lack of License
rationale could be deemed dishonest.
evidence

shows

that

he

was

Also, if believed, Swoope’s

treated

differently

than

female

employees in relation to the A695 experience/practicum because he
was required by Moore to get pre-authorization prior to starting,
was not allowed to use his vacation and/or personal leave time, and
was prevented from completing it within GCSC.
about

that

terminated.

allegedly

discriminatory

Swoope complained

treatment

and

was

later

This is enough to show at least an inference that the

real reason for the adverse employment action was discriminatory.
Therefore, summary judgment is DENIED as to Swoope’s disparate
treatment gender discrimination claims.22

Retaliation
Defendants fail to even mention the word retaliation in
reference to Swoope’s discrimination claims, which span throughout
his second amended complaint.

For example, Swoope alleges that he

22

In so ruling, the Court notes again that neither party adequately
briefed this issue, and, as such, the ultimate determination of whether Swoope
was discriminated against will be left to the trier of fact.

32

was

retaliated

against

for

having

complained

of

Moore

and

Campbell’s allegedly discriminatory treatment when he was: (1)
prevented from using his vacation time and/or personal leave time
to complete the Program within the district; (2) prohibited from
completing the A695 experience/practicum part of the Program at
Marquette Elementary School which ultimately contributed to his
failure to obtain his License; (3) not paid for “Saturday School”
work;

(4)

threatened

with

discharge

for

insubordination

for

refusing to apologize for having complained about the alleged
discrimination; and (5) ultimately terminated due to an alleged
revised administrative organizational chart that eliminated his
position.
To establish retaliation under the direct method, “a plaintiff
must prove (1) that she engaged in statutorily protected activity;
(2) that she was subjected to an adverse employment action; and (3)
that there was a causal connection between the two.” Greengrass v.
Int’l Monetary Sys. Ltd., 776 F.3d 481, 485 (7th Cir. 2015) (citing
O’Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir.
2011)). Notably, there is no requirement that a plaintiff point to
a similarly situated employee when using the direct method to prove
his claim.

Under the indirect method, on the other hand, an

employee must show that “(1) the employee engaged in statutorily
protected activity; (2) she was meeting her employer’s legitimate
expectations; (3) she suffered an adverse employment action; and

33

(4)

she

was

treated

less

favorably

than

similarly

situated

employees who did not engage in statutorily protected activity.”
Majors v. General Elec. Co., 714 F.3d 527, 537 (7th Cir. 2013).
For both methods, “[t]he showing a plaintiff must make to set out
an adverse employment action required for a retaliation claim is
lower than that required for a discrimination claim; a plaintiff
must only show that the employer’s action would cause a ‘reasonable
worker’ to be dissuaded from making or supporting a charge of
discrimination.”

Chaib, 744 F.3d at 986-87 (citing Burlington N.

& Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)).
The Court finds that Defendants’ cursory statement that Swoope
was not discriminated against because he was “not subjected to any
adverse employment action” and because “he was not treated less
favorably

than

similarly

situated

employees

outside

of

his

protected class” is insufficient to have triggered the shifting of
the burden to Swoope.

Defendants’ do not even tangentially

reference a statutorily protected activity or a causal connection23
(or lack thereof of either).

It is unfair to require the opposing

party to present a defense to a claim that has not been adequately
challenged.

See

Modrowski,

712

F.3d

at

1168.

Therefore,

Defendants’ motion for summary judgment as to Swoope’s retaliation

23

The Court is cognizant that a causal connection is not required
under the indirect method of proof. Majors, 714 F.3d at 537. Nevertheless,
the point remains that Defendants failed to address Swoope’s retaliation
claims in any adequate manner.

34

claims is DENIED.24

State Law Claims
Swoope has alleged various state law tort claims such as
defamation and tortious interference with a contract throughout his
complaint.

Defendants argue that these claims are barred because

Swoope did not serve Defendants with a tort claim notice as
required by Indiana law.

(See Brief, DE #127, p. 12.)

Again,

Swoope has failed to respond to this argument in any meaningful
way.25
The Indiana Tort Claims Act (“ITCA”) provides that “a claim
against a political subdivision is barred unless notice is filed
with the governing body of that political subdivision . . . within

24
Even if it was sufficient, however, as set forth above, Swoope has
presented evidence that he was subjected to an adverse employment action (i.e.
he was ultimately terminated via an alleged reorganization after Moore and/or
Campbell denied him the opportunity to use his vacation and/or leave time to
complete the Program within the GCSC). See Lewis v. City of Chicago, 496 F.3d
645, 653 (7th Cir. 2007) (describing adverse employment actions as
significant changes in employment status, changes to the employee’s current
wealth, changes involving the employee’s career prospects and future wealth,
or changes to the employee's work conditions). As noted above, a plaintiff
need not point to a similarly situated employee if proceeding under the direct
method in retaliation cases. The Court takes no position as to the causation
aspect of the analysis, as neither party has referenced that element at all.
25

Swoope has provided a boilerplate law section (with no independent
analysis) stating that federal 1983 claims are not precluded by the Indiana
Tort Claims Act. (See Brief, DE #148, pp. 10-11.) As pointed out in a
previous order by this Court, Swoope is again confusing the application of the
Indiana Tort Claims Act. He is right, of course, that under Felder v. Casey,
487 U.S. 131 (1988), the Supreme Court held that notice-of-claim statutes are
inapplicable to federal 1983 claims. However, this does nothing to change the
disposition of Swoope’s state tort law claims.
While the notice provisions
are not applicable to section 1983 claims, the ITCA does apply to pendent
state law claims. Meury v. Eagle-Union Cmty. Sch. Corp., 714 N.E.2d 233, 242
(Ind. Ct. App. 1999).

35

180 days after the loss occurs.”
corporation”

is

included

in

Ind. Code § 34-13-3-8.
the

definition

subdivision for the purposes of the ITCA.
110(9).

of

a

A “school
political

Ind. Code § 34-6-2-

The notice requirements of the ITCA apply not only to

suits against political subdivisions, but also to suits against
employees of political subdivisions.

Alexander v. City of South

Bend, 256 F. Supp. 2d 865, 875 (N.D. Ind. 2003); Davidson v.
Perron, 716 N.E.2d 29, 34 (Ind. Ct. App. 1999).

Once a defendant

raises failure to comply with the notice requirements of the ITCA,
the burden then shifts to the plaintiff to prove compliance.
Davidson, 716 N.E.2d at 34.
Swoope has failed to present any evidence that he complied
with the ITCA notice requirements.

Therefore, as a matter of law,

any of his claims for defamation and/or tortious interference with
a contract must fail, and Defendants’ motion for summary judgment
is GRANTED.26
Swoope has also alleged a state law breach of contract claim
in his second amended complaint.

Defendants argue that Swoope was

26

Additionally, as Defendants point out in their motion (see DE #127,
p. 7), Swoope’s tort claims against Moore and Campbell individually fail
because the ITCA requires that an action filed against a municipal
corporation’s employees personally must allege that the employees’ actions
were criminal, clearly outside the scope of the employee’s employment,
malicious, willful and wanton, or calculated to benefit the employee
personally. Ind. Code § 34-13-3-5(c). Swoope failed to present any evidence
that Moore and Campbell acted in such a manner; in fact, in his second amended
complaint (see DE #106, p. 2), he specifically notes that his damages arose
from actions taken by Moore and Campbell in their capacities as executive
director and interim superintendent of the GCSC. Moore and Campbell are not
personally amenable to suit on these claims. See Ball v. City of
Indianapolis, 760 F.3d 636, 644-45 (7th Cir. 2014); Ind. Code § 34-13-3-5(b).

36

an “at-will” employee, so any contract claim against Defendants
would sound in tort rather than contract under Indiana law, and,
because of that classification, summary judgment is appropriate due
to the lack of notice under the ITCA.
13.)

(See Brief, DE #127, pp. 11-

Again, Swoope has failed to respond to that argument in any

meaningful way.27
Without delving into the merits, the Court notes that Swoope’s
state law breach of contract claim in Count I was dismissed by this
Court on August 28, 2012.
was with prejudice.

(DE #82.)

(Id. at 1.)

The dismissal of that claim

In the dismissal order, the Court

noted that Swoope had failed to respond to Defendants’ argument
that the breach of contract claim in Count I should be dismissed
because Swoope did not allege that he had performed his part of the
contract.

(Id. at 4-5.)

Swoope subsequently filed a motion to

alter or amend judgment arguing that the Court had erred by ruling
that he had failed to state a claim for breach of contract.28

(DE

27
In his “Statement of Genuine Issues” Swoope simply states, “Swoope
not at will employee. (Swoope -Exh. - 17.).”
28

In that motion, Swoope stated that no breach of contract claim was
intended in Count I and that it was only “intended to provide factual
background material to show the development of the relationship between the
School defendants and Swoope and demonstrate the facial plausibility that
would allow the court to draw the reasonable inferences that the defendants
are liable for the misconduct alleged in the overall Complaint.” (DE #86, pp.
4-5.) Swoope went on to argue that his breach of contract claims were found
in Counts VI & VII. (Id.) However, as the Court pointed out in its order
denying Swoope’s motion to amend or alter judgment, Swoope could have (and
should have) made those arguments in response to the original motion to
dismiss, but he failed to do so. (See DE #97, p. 4.) The Court noted that
Defendants had very clearly argued in their motion to dismiss that Court I
should be dismissed because Swoope did not allege all of the elements of
breach of contract, yet nowhere in Swoope’s response brief did he argue that
he did not intend for Count I to allege breach of contract, nor did he attempt

37

#86.)

The Court issued an order denying Swoope’s motion to alter

or amend judgment on December 10, 2012.

(DE #97.)

On February 1,

2013, Swoope filed a motion to file a second amended complaint.
(DE #100.)

Defendants opposed the motion on grounds that allowing

Swoope to amend his complaint yet again was prejudicial to them
because discovery was almost complete and they were on the process
of preparing their summary judgment motion.

(DE #101.)

On April

1, 2013, Magistrate Rodovich granted the motion to amend, focusing
that order solely on the timeliness/prejudice issue, as that was
the only issue raised by the parties.

(DE #105.)

second amended complaint on April 7, 2013.

Swoope filed his

(DE #106.)

In it, he

added additional information to Count I related to his previous
breach

of

contract

claim.

(Id.

at

3-6.)

Specifically,

he

referenced (and attached as an exhibit) the original teacher
contract signed on August 30, 2006, and alleged that he had
“performed all conditions required of him as Assistant Principal
until he was terminated . . . .”

(Id. at 4.)

He also added

information about that alleged breach of contract claim related to
Defendants’ refusal to permit Swoope from completing the Program
within the district.

(Id. at 5.)

The rest of Court I is

substantively identical to Swoope’s previously dismissed claim.
Under these circumstances, the Court finds that Swoope’s
breach of contract claim in Count I, which was already dismissed

to show it alleged another cause of action.

38

(Id. at 4-5.)

with prejudice by this Court, has not been resurrected by either
his second amended complaint or by his response (or rather lack
thereof) to Defendants’ motion for summary judgment.

This claim

was clearly and definitively dismissed with prejudice by the Court
several years ago, and it need not be rehashed further in this
order.29

As such, no state law claims remain pending in this

action.30

29

The same determination applies to Count II, which was also
previously dismissed by this Court with prejudice. (DE #82, p. 1.) Count II
of Swoope’s second amended complaint is virtually identical to Count II of his
first amended complaint. (DE #106, pp. 6-8.) This claim was clearly and
definitively dismissed with prejudice by the Court several years ago, and it
need not be rehashed.
30

To the extent that Swoope argued in his motion to alter or amend
judgment that his state law contract claims were found in Counts VI & VII, he
did not elaborate then as to what those contract claims allegedly entailed,
nor has he done so now. In Count VI of his second amended complaint, Swoope
states that Defendants “breached the agreement between Swoope and the GCSC
pursuant to which he would be granted time to obtain his administrative
license.” (DE #106, p. 17.) In the motion for summary judgment, Defendants
have framed the issue of breach of contract in terms of the teacher/employment
contract between Swoope and GCSC. Swoope’s single line response stating,
“Swoope not [an] at will employee” and citation to exhibit 17 (the teacher
contract itself and an email regarding the reassignment of non-statutory
administrators) does nothing to reframe that issue for purposes of the state
law questions. (See DE #148, p. 7 & DE #147-17.) Swoope does not provide any
appropriately cited and relevant evidence in response to Defendants’ motion
that would suggest that any contract was breached (or even existed) between
himself and Defendants related to the time within which he would be “granted”
to obtain his License. Similarly, in Count VII of his second amended
complaint, Swoope states that “[t]he policy of continuing the employment of
Swoope and other non-statutory administrators without a new written contract
each year created a constitutional property and liberty interest in his
position and a reasonable expectation of continued employment under the
Fourteenth Amendment to the United States Constitution.” (DE #106, p. 19.)
Because Swoope does not provide a properly cited and supported response to
Defendants’ motion for summary judgment regarding the state law contract
claim, the Court has addressed Count VII in the context of a constitutional
claim (as Swoope himself alleged in the second amended complaint) rather than
as a state law contract claim.

39

Failure to State a Claim
Finally, Defendants’ last three pages of their brief argue
that each count should be dismissed in its entirety for failure to
state a claim.

(See DE #127, pp. 13-15.)

Each section is a

sentence or two long, and makes no attempt to apply any case law at
all (let alone relevant case law) to the declarations they set
forth or to analyze the matter in any way.

Defendants language

suggests that they may be attempting to proceed under Federal Rule
of Civil Procedure 12(b)(6), but that does not make sense in the
context of a summary judgment motion, especially in light of the
factual matters they present that are clearly outside of the
pleadings.

In

any

event,

the

Court

declines

to

untangle

Defendants’ arguments, and any request for summary judgment based
on this section of their brief is DENIED.

CONCLUSION
For the reasons set forth above, the Motion for Summary
Judgement (DE #126) is GRANTED IN PART AND DENIED IN PART as set
forth in the body of this Order, the Defendants’ various Motions to
Strike (DE #144, #145, & #150) are DENIED, and Swoope’s Motion for
Leave to File Instanter (or, more accurately, nunc pro tunc) (DE
#146) is GRANTED.

Furthermore, in its discretion, the Court

STRIKES the documents at the following docket entries sua sponte:

40

DE #135 and DE #136 through #143.

DATED: March 30, 2015

/s/ RUDY LOZANO, Judge
United States District Court

41