Kubsch v. Indiana State Police

Filing 60

OPINION AND ORDER: OVERRULING Pltf's objection to Magistrate Judge Martin's Report and Recommendation; ADOPIING 53 Magistrate Judge Martin's Report and Recommendations; GRANTING IN PART 36 MOTION for Summary Judgment filed b y Indiana State Police as to pltf's disparate treatment and retaliation claims, and DENYING the same motion as to pltf's hostile work environment claims. This case will be set for trial under separate order. Signed by Senior Judge James T Moody on 1/8/15. (jld)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
JUDITH A. KUBSCH,
)
)
Plaintiff,
)
)
v.
)
No. 2:10 CV 495
)
INDIANA STATE POLICE,
)
)
Defendant.
)
OPINION and ORDER
This matter is before the court on a motion for summary judgment (DE # 36),
filed by defendant Indiana State Police on February 15, 2013. On May 19, 2014, this
court referred this motion to Magistrate Judge John E. Martin for a report and
recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). (DE # 51.). On November 3, 2014,
Magistrate Judge Martin filed his report and recommendation. (DE # 53.) Plaintiff
timely filed an objection to the report and recommendation (DE # 59); defendant has
indicated that it has no objections (DE # 58). The report and recommendation and
subsequent objection are now ripe for ruling.
I.

BACKGROUND
Because neither party disputes the material facts of this case as presented by

Magistrate Judge Martin in his November 3, 2014, order, the court briefly recites the
relevant facts, as Magistrate Judge Martin stated them, below.
Plaintiff has been employed as a trooper with defendant ISP since December 20,
1993, except for interruptions for military service. After plaintiff returned from Iraq in
2008, she was required to undergo two mental health fitness for duty evaluations

(“FDEs”). While the first FDE was pending, plaintiff was removed from her regular
duties and assigned to administrative duties. Reassignment to administrative duties
involved the suspension of law enforcement authority with the surrender of badge,
identification card, and weapon. The psychologist who performed the first FDE
recommended that plaintiff attend sixteen counseling sessions but that she be allowed
to return to her regular duties after completing four of them. Rather than report for
administrative duties during the FDE process and mandatory counseling, plaintiff
chose to use some of her accumulated sick days. Plaintiff returned to regular duty after
completing four counseling sessions. Plaintiff’s reassignment to administrative duties
pending the first FDE and during her first four counseling sessions did not result in any
lost wages. Her only financial loss related to the FDE was the payment of insurance
co-pays for the treatment that was mandated by the evaluating psychologist.
Later, plaintiff was informed that she had been assigned to escort bicyclists on a
two-day charity ride. Plaintiff performed the first day of the escort but not the second.
While plaintiff’s absence from the second day of the escort was being investigated as a
possible rules violation, plaintiff was ordered to undergo a second FDE. She was again
suspended from her regular duties and assigned administrative duties, this time at the
Indiana Toll Road District instead of at her usual post at the Bremen District. Plaintiff
asserts that she had no actual duties while assigned to the Toll Road District and that
she was not allowed to use sick days to avoid the assignment as she requested. The
examining psychologist concluded that plaintiff was fit for duty but recommended that

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she continue counseling. Plaintiff’s second temporary reassignment did not result in
any lost wages.
Plaintiff made a report of sex discrimination with human relations on September
18, 2009. She then contacted the EEOC and on September 22, 2009, signed her first
formal charge of discrimination. She alleged that she had been subjected to a hostile
work environment, “workplace harassment, exclusion, intimidation, and unwarranted
scrutiny of [her] job performance,” including being required to undergo two mental
health FDEs. (DE # 1, Ex. 1.) On September 24, 2009, plaintiff was formally charged with
a violation of personnel rules for failing to report for the second day of the charity
bicycle ride and for being discourteous to another officer on the first day of the ride. On
October 1, 2009, plaintiff attended a hearing on those charges. On October 6, 2009, the
superintendent concluded that the evidence supported the charges and ordered
plaintiff suspended for ten days without pay.
On December 3, 2010, plaintiff received a written employee counseling form for
alleged inappropriate communication with a dispatcher over the police mobile data
terminal system on October 28, 2010. (Plaintiff had written “Are you allergic to
phones?” after the dispatcher complained she had been unable to contact plaintiff over
the police radio.) On December 3, 2010, plaintiff filed a second charge of discrimination
with the EEOC, claiming the counseling form was retaliation for filing her EEOC charge
and for complaining on October 28, 2010, that another officer embarrassed her over the

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police radio by accusing her of attempting to shirk her duties related to a car accident
on that date.
After receiving right to sue letters for both charges, plaintiff filed a complaint
(and later, an amended complaint) in this court, including claims for hostile work
environment, disparate treatment, and retaliation in violation of Title VII of the Civil
Rights Act of 1964. Defendant filed a motion for summary judgment, arguing that it is
entitled to summary judgment on plaintiff’s disparate treatment and retaliation claims.
As explained above, this court referred that motion to Magistrate Judge Martin. After
Magistrate Judge Martin issued his report and recommendation, plaintiff filed an
objection, which the court considers below.
III.

LEGAL STANDARD
In reviewing a magistrate judge’s report and recommendation, a district judge

must “modify or set aside any part of the order that is clearly erroneous or is contrary
to law.” FED. R. CIV. P. 72(a). In this case, Magistrate Judge Martin’s order addressed a
motion made pursuant to FEDERAL RULE OF CIVIL PROCEDURE 56. That rule requires that
motions for summary judgment be granted “if the movant shows that 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). As explained by the Supreme Court of the United
States, RULE 56 requires the entry of summary judgment, after adequate time for
discovery, against a party “who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will bear

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the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing FED.
R. CIV. P. 56(c)). “[S]ummary judgment is appropriate – in fact, is mandated –
where there are no disputed issues of material fact and the movant must prevail as a
matter of law. In other words, the record must reveal that no reasonable jury could find
for the non-moving party.” Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832,
836 (7th Cir. 1994) (citations and quotations omitted). In viewing the facts presented on
a motion for summary judgment, a court must construe all facts in a light most
favorable to the non-moving party and draw all legitimate inferences in favor of that
party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); NLFC, Inc. v. Devcom
Mid-Am., Inc., 45 F.3d 231, 234 (7th Cir. 1995). A court’s role is not to evaluate the
weight of the evidence, to judge the credibility of witnesses, or to determine the truth of
the matter, but instead to determine whether there is a genuine issue of triable fact. See
Anderson, 477 U.S. at 249-50.
III.

DISCUSSION
Plaintiff’s “objection” to Magistrate Judge Martin’s report and recommendation

is actually a potential objection conditioned on the answer she expects to receive from
this court on the following question: “Does the ISP’s standardless practice of referring
female officers for psychological fitness for duty evaluations at a rate of 2 to 3 times that
of their male counterparts violate Title VII of the Civil Rights Act of 1963, regardless of
whether the plaintiff suffered any pecuniary loss as a result of being referred twice for
such evaluations?” If the answer is yes, then plaintiff claims she has no objections to the

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magistrate judge’s report and recommendation. If the answer is “no,” then plaintiff has
an objection to make. Plaintiff’s question was not previously presented to the court, and
was not considered by the magistrate. Nor has defendant been afforded an opportunity
to brief the issue. Plaintiff essentially seeks an advisory opinion without going through
the appropriate procedural channels. Such a maneuver is improper, and the court will
not entertain it.
Although the court will not consider plaintiff’s proposed question, it will
consider the objection plaintiff claims she would make to the report and
recommendation if the court’s answer to her question were “no.” Specifically, plaintiff
argues that Magistrate Judge Martin incorrectly determined that plaintiff’s disparate
impact and retaliation claims failed because plaintiff could not demonstrate the
existence of an “adverse employment action,” a necessary element of both claims
regardless of the method of proof employed.
The parties do not dispute the controlling law regarding adverse employment
actions for disparate impact claims. As Magistrate Judge Martin explained, “[o]nly
those acts resulting in adverse employment actions” present cognizable claims. Oest v.
Ill. Dept. of Corrections, 240 F.3d 605, 612 (7th Cir. 2001) To be considered materially
adverse, an employment action must be “more disruptive than a mere inconvenience or
an alteration of job responsibilities.” Crady v. Liberty Nat’l Bank & Trust Co., 993 F.2d 132,
136 (7th Cir.1993). “[A]n adverse employment action need not be quantifiable in terms
of pay or benefits,” but “not everything that makes an employee unhappy is an

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actionable adverse action.” Hilt-Dyson v. City Of Chicago, 282 F.3d 456, 465-66 (7th Cir.
2002) (quoting Smart v. Ball St. Univ., 89 F.3d 437, 441 (7th Cir. 1996)). Whether a
particular employment action is materially adverse will depend on the unique
circumstances of each case, but the Seventh Circuit Court of Appeals has identified
three general categories of actionable, materially adverse employment actions: (1) an
employee’s compensation or benefits are diminished or she is fired; (2) a nominally
lateral transfer or other change in her job significantly reduces her career prospects; or
(3) work conditions are changed so as to subject her to “a humiliating, degrading,
unsafe, unhealthful, or otherwise significantly negative alteration in [her] workplace
environment.” Nagle v. Vill. of Calumet Park, 554 F.3d 1106, 1116 (7th Cir. 2009) (citing
O’Neal v. City of Chicago, 392 F.3d 909, 911 (7th Cir. 2004)).
In this case, plaintiff argues (somewhat nebulously) that the standard for
determining what constitutes an “adverse employment action” is a flexible one, and
that this flexibility renders the concept of “adverse employment actions” broad enough
to encompass the facts of plaintiff’s case. However, even a flexible standard has its
limits. An analysis of the relevant law and Magistrate Judge Martin’s recommendation
demonstrates that Magistrate Judge Martin correctly assessed the undisputed facts and
determined that the FDEs did not result in plaintiff being terminated, demoted, or
losing pay. Indeed, the only financial consequence of the FDEs was the cost of co-pays
for therapy sessions, and plaintiff did not argue that this cost constituted an adverse
employment action. Further, Magistarte Judge Martin correctly surmised that any

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argument by plaintiff that she might suffer future financial consequences in the form of
the loss of a future promotion was negated by her testimony that she was not interested
in a promotion because she liked her current position.
Magistrate Judge Martin also properly rejected plaintiff’s argument that her
temporary decrease in responsibilities while on administrative duty at the Toll Road
District constituted an adverse employment action, see Nichols v. S. Ill. Univ.Edwardsville, 510 F.3d 772, 787 (7th Cir. 2007) (agreeing with the Fourth and Fifth
Circuits that being placed on “paid administrative leave pending the results of [a]
fitness for-duty psychological examination [does] not constitute a materially adverse
action”), as well as her argument that she experienced an adverse employment action
when she was humiliated and embarrassed, see Spring v. Sheboygan Area Sch. Dist., 865
F.2d 883, 886 (7th Cir. 1989) (change in public perception is not adverse employment
action); O’Neal v. City of Chicago, 317 F. Supp. 2d 823, 828 (N.D. Ill. 2004) (“[Plaintiff]
cites no authority—and this Court finds no controlling authority—for the proposition
that a ‘tarnished reputation’ is sufficient for establishing an adverse employment
action.”); Stewart v. Evans, 275 F.3d 1126, 1136 (D.C. Cir. 2002) (“[P]ublic humiliation or
loss of reputation does not constitute an adverse employment action under Title VII”);
see also Smart v.Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996) (“[N]ot everything that
makes an employee unhappy is an actionable adverse action.”).
Plaintiff’s retaliation claim warrants a separate analysis. Under Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 61 (2006), the term “adverse employment action” is

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more broadly defined in a retaliation action than in a disparate treatment action. The
Supreme Court reasoned that while the terms “hire,” “discharge,” “compensation,
terms, conditions, or privileges of employment,” “employment opportunities,” and
“status as an employee” are in Title VII’s anti-discrimination provision, the
anti-retaliation provision has no such limiting words. Id. at 62-63. The Court surmised
that the anti-discrimination provision promotes a workplace where individuals are not
discriminated against because of their status, while the goal of the anti-retaliation
provision is to prevent an employer from interfering with an employee’s efforts to
secure or advance enforcement of Title VII’s basic guarantees. Id. Accordingly, the
Court held that, in the context of a Title VII retaliation claim, an employee need not
show that the action affected the terms and conditions of employment, but rather she
must simply show that a reasonable employee would have found the employer’s
challenged action “materially adverse . . . which in this context means it well might
have dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Id. at 68 (internal quotation marks omitted).
In this case, plaintiff’s retaliation claim is premised on her allegation that she
received a counseling form after filing an EEOC charge. Magistrate Judge Martin
correctly determined that such a factual scenario does not meet even the broader
definition of “adverse employment action” in the retaliation context. Whittaker v. N.
Illinois Univ., 424 F.3d 640, 648 (7th Cir. 2005) (written reprimand does not qualify as
adverse employment action in retaliation context); Johnson v. Cambridge Indus., Inc., 325

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F.3d 892, 902 (7th Cir. 2003) (“Even under the more generous standard that governs
retaliation claims,” a reprimand “without more” is not an adverse employment action).
In short, Magistrate Judge Martin correctly found that plaintiff failed to create
issues of fact regarding the existence of an adverse employment action necessary to
support her disparate treatment and retaliation claims. Accordingly, his
recommendation that this court grant summary judgment for defendant on those claims
was appropriate. Celotex, 477 U.S. at 322 (“Rule 56(c) mandates the entry of summary
judgment . . . against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will bear
the burden of proof at trial.”). Plaintiff’s objection to Magistrate Judge Martin’s report
and recommendation is overruled.
IV.

CONCLUSION
For the foregoing reasons, plaintiff’s objection to Magistrate Judge Martin’s

Report and Recommendation (DE # 59) is OVERRULED. The court ADOPTS
Magistrate Judge Martin’s Report and Recommendation (DE # 53), GRANTS
defendant’s motion for summary judgment (DE # 36) as to plaintiff’s disparate
treatment and retaliation claims, and DENIES the same motion as to plaintiff’s hostile
work environment claim. This case will be set for trial under separate order.
SO ORDERED.
Date: January 8, 2015
s/James T. Moody________________
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT

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