Miller v. St Joseph County et al

Filing 47

OPINION AND ORDER granting 40 Motion to complete the filing instanter; granting 25 Motion for Summary Judgment. The Clerk is ORDERED to close this case. Signed by Judge Rudy Lozano on 7/30/14. (mc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
MICHAEL A. MILLER,

)
)
)
)
)
)
)
)
)

Plaintiff,
vs.
ST. JOSEPH COUNTY, et al.,
Defendant.

NO. 2:11-CV-217

OPINION AND ORDER
This matter is before the Court on the:

(1) Verified Motion

for Leave to Allow Plaintiff Time to Complete the Filing of
Plaintiff’s Response to Defendants’ Motion for Summary Judgment
Instanter, filed on February 22, 2014; and (2) Defendants’ Motion
for Summary Judgment, filed on October 22, 2013.

After due

consideration, Plaintiff’s motion for leave to complete the filing
instanter is GRANTED. Accordingly, Plaintiff’s February 22 and 23,
2014

filings

(DE##’s

41

and

42)

are

deemed

timely

Defendants’ motion for summary judgment is GRANTED.

filed.

Accordingly,

the Clerk is ORDERED to close this case.

BACKGROUND
Plaintiff, Michael A. Miller, brought suit against Defendants,
alleging he was unlawfully demoted and denied a promotion within

-1-

the St. Joseph County Police Department.

Miller is an African

American male and is an employee of St. Joseph County Police
Department (“SJCPD”). Defendant Michael Grzegorek was the Sheriff
of St. Joseph County at all times relevant.
is

the

Chief

of

the

St.

Joseph

County

Defendant Tim Decker
Police

Department.

Defendants Terry O’Connor, Phyllis Fields, William Thompson, Jon
Hanley and Joseph Zappia are members of the St. Joseph County
Sheriff’s Merit Board.
On November 4, 2010, Grzegorek was elected as St. Joseph
County Sheriff.

Miller sought an appointment in Grzegorek’s

administration, but did not receive one.

Instead, he was offered

and accepted a job in the Property Room.

Miller alleges that he

was the victim of several adverse employment actions because of his
race and his participation in the 2010 St. Joseph County Sheriff’s
election, in violation of Title VII of the Civil Rights, the Equal
Protection Clause under the Fourteenth Amendment to the U.S.
Constitution, the Due Process Clause, the First Amendment as well
as a state law claim for intentional infliction of emotional
distress.
Defendants have filed a motion for summary judgment, seeking
judgment in their favor on all counts.

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DISCUSSION
Summary Judgment 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.”

Id.

In determining whether

summary judgment is appropriate, the deciding court must construe
all facts in the light most favorable to the non-moving 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.,

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621 F.3d 651, 654 (7th Cir. 2010).

If the non-moving 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 a non-

moving party’s failure to respond to summary judgment does not
automatically result in judgment for the movant, a court may deem
the facts in the moving party’s statement of uncontested facts as
admitted to the extent the facts are supported by evidence in the
record.

Keeton v. Morningstar, Inc., 667 F.3d 877, 884 (7th Cir.

2012).

Facts
Miller began his employment with the St. Joseph County Police
Department

(“Department”)

on

April

30,

1981,

as

a

Cadet.

Subsequently, he was promoted to Probationary Patrolman on July 7,
1981 and then Corporal on July 7, 1985. (Exh. A). As of his
deposition, Miller had served on the Department for 31 years. (Exh.
B, Miller Dep. 19). On February 7, 1995, he was promoted to
Sergeant, after sitting for a merit system promotional exam.
(Miller Dep. 94. However, Miller did not sit for a Lieutenant
examination in 2003. (Miller Dep. 9; Exh. C).
Miller was a candidate for Sheriff in the 2010 primary
election, and ran against Mike Grzegorek (“Grzegorek”). (Miller
Dep. 15). The only time Miller had worked with Grzegorek on the

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Department was sometime beginning in the mid-1980’s. (Miller Dep.
49). However, he had not worked in the same department with
Grzegorek for the past ten years. (Miller Dep. 49). During the
primary, Miller and Grzegorek appeared at the same place at various
campaign events on occasion. (Miller Dep. 15). Grzegorek never said
anything to Miller that ever would convey to him any racial animus.
(Miller Dep. 16). During the campaign, Miller and Grzegorek had a
discussion at a movie theater about the campaign.

During this

discussion they talked about Grzegorek’s signs being late and what
candidates were going to drop out of the race. (Miller Dep. 26).
Miller asked Grzegorek to drop out of the race for Sheriff. Miller
could not recall whether Grzegorek directly responded to his
request. (Miller Dep. 27, 28).
Between the 2010 primary and general election, then current
Sheriff, Frank Canarecci, resigned. (Miller Dep. 16). Miller ran
for interim Sheriff in a special election, voted on by precinct
committee people, and lost. (Miller Dep. 16-18). During this
special election, Miller could not identify anyone who displayed
racial animus towards him during the special election because no
one came up to him and directly said they would not vote for Miller
because he was black. (Miller Dep. 21; Miller Aff. ¶ 4).
On November 4, 2010, Miller called Sheriff-Elect Grzegorek to
congratulate him on winning the general election. (Miller Dep. 14).
Grzegorek said, “thanks for the call and I’ll be getting with you

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later.”

(Miller Dep. 14).

Miller then called Sheriff-Elect

Grzegorek on November 19, 2010. (Miller Dep. 28).

Grzegorek told

Miller, “he would get with [Miller], [Grzegorek was] out of town,
when [he] get[s] back, [they]’ll talk.”

(Miller Dep. 28). Miller

made a third call to Sheriff-Elect Grzegorek on December 1, 2010.
(Miller Dep. 29). The December 1, 2010 call was the first time
Miller expressed interest in the positions of Assistant Chief and
Warden. Id. These positions are direct appointments of the Sheriff.
(Exh D). No further discussion took place between Miller and
Sheriff-Elect Grzegorek regarding those positions. (Miller Dep.
30). On December 4, 2010, Sheriff-Elect Grzegorek announced that he
would appoint Robert Boits to Assistant Chief. (Miller Dep. 30-32,
36).
Boits served on the Department from February 1970 until he
retired on December 31, 1998. (Exh F-1). Boits served as Chief for
approximately thirteen years. (Exh F-2). Grzegorek chose Boits, as
Assistant Chief in his administration, because of his experience.
(Exh. H, Grzegorek Aff. ¶¶7, 10). Following Boits’ appointment,
Miller never spoke with Grzegorek about why he chose Boits. (Miller
Dep. 38, 41-43). However, Miller believes he was qualified for the
Assistant Chief position because he worked in more divisions than
Boits, even though he knew Boits had previously served as Chief and
had served on the Department “a long time.” (Miller Dep. 38, 10304).

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At the time Grzegorek was elected, Julie Lawson (“Lawson”) was
already serving as Warden of the St. Joseph County Jail. (Grzegorek
Aff. ¶9). As such, Grzegorek believed Lawson possessed all of the
necessary qualifications to continue on in her role as Warden. Id.
at ¶¶9-10. Miller is aware that Lawson had even served as Assistant
Warden and also had experience working in the Indiana prison
system. (Miller Dep. 105). However, Miller’s jail experience was
limited to running the midnight shift for two and a half years in
the old jail, beginning in 1995. (Miller Dep. 31). Since that time,
Miller also admits he has had no additional experience with St.
Joseph County’s new jail or current jail regulations. (Miller Dep.
24-25; 31-32). As a basis for his qualifications as Warden, Miller
relies on his number of years with the Department and the various
divisions he worked in. (Miller Dep. 32). Miller never spoke with
Grzegorek about why he chose Lawson. (Miller Dep. p.43).
In December of 2010, Sheriff-Elect Grzegorek offered Randy
Kaps

(“Kaps”),

a

Sergeant

in

Metro

Homicide,

a

temporary

appointment to Captain in charge of the Detective Bureau (“DB”).3
(Kaps Aff. ¶4, Exh. I,). Kaps accepted and proceeded to evaluate
DB. Id. at ¶5. Since sometime in the 1970’s, the Property Room had
accumulated approximately 1,000 guns that should have either been
destroyed or returned to owners. Id. at ¶6. On or around December
2010, Kaps asked Miller if he would be interested in overseeing the
cleanup of the guns in the Property Room. Id. at ¶8. Bambi Kanouse

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(“Kanouse”), the Property Room manager had been unable address the
backlog of guns since she was hired in 2007. (Kanouse Dep. 41-42,
Exh. E). Kaps believed, based on other officer’s accounts, that
Miller possessed the necessary organization skills, and would do a
good job on the project. (Kaps Aff. ¶¶7-8). In addition, Miller
held the rank of Sergeant, and Kaps believed this would benefit the
Department with respect to getting cooperation from Indiana State
forensic labs. Id. at ¶6. At that time, there were only two other
Sergeants in DB; one was responsible for maintaining a child
molester database; and the other was in charge of internals. Id.
Kaps viewed Miller as the only available Sergeant. Id.
Because Kaps was Miller’s supervisor, Miller accepted the
position.

Id. at ¶ 9. By accepting this assignment, there was no

change in Miller’s pay, benefits, or rank. (Exh. I, Kaps Aff. ¶10;
Exh. H, Grzegorek Aff. ¶12). Miller alleges this was a demotion
because his transfer to the Evidence/Property Room altered his
Senior Sergeant Detective position.

(Miller Aff. ¶ 28).

Oakley

tantamount

believed

the

transfer

was

to

a

punishment

primarily because the work was performed in the basement.
Dep. 97-108).

Officer

(Oakley

However, Miller admits that Kaps never told him he

was demoted. (Miller Dep. 75-76; 155). According to Kaps, Miller’s
duties, with respect to the gun project, included inventorying
guns, taking guns to the South Bend Police to have ballistics done,
running checks on the guns before they were returned to owners,

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tracking down owners, shipping guns to owners, and over seeing a
certain company, which tore down the guns. (Miller Dep. 53, 55;
Kaps Aff. ¶9).
guns.

However, all Miller says he did was the counting of

(Miller Dep. P. 55).
Neither Chief Decker (“Decker”), Lieutenant Regis Thimons

(“Thimons”), or Grzegorek took part in Kaps’ decision to ask Miller
if he was interested in the project. (Exh. J, Decker Aff. ¶5; Exh.
K, Thimons Aff. ¶5; Exh. H, Grzegorek Aff. ¶11). Miller admits he
never engaged in any direct discussion, at any time, with Grzegorek
regarding his assignment to the Property Room. (Miller Dep. 76).
The only time Miller expressed dissatisfaction with the assignment
was in a meeting with Kaps and Decker on April 13, 2011. (Miller
Dep. 77, 84; Kaps Aff. ¶13; Decker Aff. ¶6). In the meeting, Decker
offered to move Miller to the Family Violence Unit. (Miller Dep.
81-82; Decker Aff. ¶7). Miller turned down the offer because he had
previously expressed interest in the unit, under a different
Sheriff, and was under the impression that the commander of the
unit did not want him. (Miller Dep. 82-83). However, when Decker
offered Miller the position, he had no knowledge whether the
commander was even the same commander. (Miller Dep. 82). According
to Miller, neither Kaps nor Decker displayed any racial animus in
the meeting with plaintiff. (Miller Dep. 85).
On September 8, 2011, Miller reported to Kaps that the company
in charge of tearing down the guns was coming in for its final day.

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(Miller Dep. 54). Miller admits that his assignment in the gun
project ended around this time. (Miller Dep. 54-55).

Kanouse also

acknowledges that once the company destroying the guns completed
their work, Miller stopped reporting to the Property Room. (Kanouse
Dep. 73-74). Following the completion of the gun project, Miller
resumed working on cases in the Detective Bureau. (Miller Dep.
181); Kaps Aff. ¶16).
Following the appointments of Assistant Chief and Warden,
Miller sought no other positions under Grzegorek. (Miller Dep. 86).
However,

Miller

alleges

he

was

not

chosen

for

temporary

administrative appointments based on race. (Miller Dep. p.47-48).
Miller states he was qualified for any appointment because he had
been on the department for 31 years and was the highest ranking
African-American in the Department. Id. Miller never discussed any
of Grzegorek’s appointments with Grzegorek. (Miller Dep. 38).
Sheriff Grzegorek has considered, and appointed African-Americans,
for temporary administrative appointments. (Grzegorek Aff. ¶¶1516).
In 2011, the Sheriff offered Gary Fields (“Fields”), an
African-American school resource officer on the Department, a
temporary appointment, but did he did not accept. Id. at ¶15.
Additionally, in 2012, Cynthia Guest (“Guest”), an African-American
Corporal on the Department, was promoted to the temporary rank of
Sergeant on January 10, 2012. Id. at ¶16. Guest expressed interest

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and the Sheriff agreed she should be appointed because she deserved
to be appointed. Id. Under past sheriff administrations, several
other African-Americans on the Department have received temporary
appointments. Id. at ¶13. These individuals include: (1) Frank
Anderson appointed Captain in 2003 to command the DB until his
retirement on November 30, 2010; (2) Cynthia Murdock appointed
Lieutenant on March 2, 2004 until she retired on January 30, 2008;
and (3) Norval Williams, as Assistant Chief, under Sheriff Seniff.
Id.
On January 24, 2011, Miller filed a race based discrimination
claim with the EEOC. (Exh. G. p.59). Miller claims that from
November 4, 2010, until January 11, 2011, he was never approached
about five (5) vacant positions filled by Sheriff Grzegorek; the
positions of Assistant Chief, Captain, Lieutenant (2), and Warden.
Id. However, Miller specifically states in his EEOC claim that he
only expressed interest in the position of Assistant Chief and
Warden. Id. In addition, Miller claimed that his assignment to the
property room was degrading. Id. The EEOC issued a finding of no
probable cause and sent a Dismissal and Notice of Rights to the
plaintiff on March 23, 2011. Id. Miller, subsequently, filed suit
on July 23, 2011. Id.

He has also alleged intentional infliction

of emotional distress. Doc. 5, ¶82.

However, Miller never served

a tort claim notice. (Grzegorek Aff. ¶17).

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The Title VII, Section 1981 and Section 1983
claims must be dismissed because there is no
evidence that Defendants engaged in race discrimination
Miller alleges that he was intentionally discriminated against
on the basis of his race, in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5, in violation
of his equal rights under the law, in violation of 42 U.S.C. §
1981, and claims his rights were violated under color of law, in
violation of 42 U.S.C. § 1983. Because Title VII, Section 1981 and
Section 1983 claims are analyzed in the same manner, these claims
will be addressed simultaneously. Patton v. Indianapolis Pub. Sch.
Bd., 276 F.3d 334, 337-38 (7th Cir. 2002); Salas v. Wisconsin Dept.
Of Corrections, 493 F.3d 913, 926 (7th Cir. 2007). There are two
ways a race discrimination claim can be proven.

There is a direct

and an indirect method. Adams v. Wal-Mart Stores, Inc., 324 F.3d
935, 938 (7th Cir. 2003).

Direct Method
Under the direct method a plaintiff must “show either through
direct or circumstantial evidence that the employer's decision to
take the adverse job action was motivated by an impermissible
purpose.” Id. at 938-939. Direct evidence consists of either an
outright admission by the decision maker that the challenged action
was undertaken because of the [plaintiff’s race] or a convincing
mosaic of circumstantial evidence . . . that point[s] directly to

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a discriminatory reason for the employer’s action. Dass v. Chicago
Bd. of Educ., 675 F.3d 1060, 1071 (7th Cir. 2012)(citations and
quotations omitted).

There is no such outright admission in this

case.
Direct evidence can also be circumstantial evidence from which
a

trier

of

fact

could

reasonably

infer

that

discriminated against him because of his race.

To

Defendants
create

a

convincing mosaic, a plaintiff can rely on “three different types
of circumstantial evidence of intentional discrimination: (1)
suspicious timing, ambiguous oral or written statements, behavior
toward or comments directed at other employees in the protected
group, and other bits and pieces from which an inference of
discriminatory intent might be drawn; (2) evidence that similarly
situated

employees

systematically

outside

better

the

treatment;

protected
and

(3)

class

evidence

received
that

the

plaintiff was qualified for the job in question but was passed over
in favor of a person outside the protected class and that the
employer’s stated reason was a pretext for discrimination.”

Id.

(citations and footnotes omitted).

Ultimately, the circumstantial

evidence

“must

a

plaintiff

presents

point

directly

to

a

discriminatory reason for the employer’s action” and be “directly
related to the employment decision.”

Adams v. Wal-Mart Stores,

Inc., 324 F.3d 935, 939 (7th Cir. 2003); Venturelli v. ARC Cmty.
Services, Inc., 350 F.3d 592, 602 (7th Cir. 2003).

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In reviewing the record, there is no circumstantial evidence
that directly points to a discriminatory reason for Miller not
getting

the

requested

Property Room.

appointments

or

being

assigned

to

the

And, while Miller continuously asserts he was

assigned to the Property Room, the evidence shows Miller was asked
to and agreed to work in the Property Room.

Tellingly, Miller

points to no direct evidence of discrimination.

Thus, there is no

direct evidence that Miller was discriminated based on his race.

Indirect Method
When using the indirect method a plaintiff must first make a
prima facie case of discrimination.
Green, 411 U.S. 792, 802 (1973).

McDonnell Douglas Corp. v.

To do this, the plaintiff must

show that 1) he belongs to a protected class 2) he was meeting his
employer's legitimate performance expectations 3) he suffered an
adverse employment action and 4) other similarly situated employees
who were not members of the protected class were treated more
favorably.

Fane v. Locke Reynolds, LLP, 480 F.3d 534, 538 (7th

Cir. 2007).
If the plaintiff is able to make out a prima facie case the
burden

then

shifts

nondiscriminatory

to

reason

the
for

Douglas, 411 U.S. 792 at 802.
then

the

plaintiff

is

defendant
the

to

adverse

make

a

legitimate,

action.

McDonnell

If the defendant meets this burden

afforded

-14-

a

chance

to

show

that

the

defendant’s

nondiscriminatory

reason

is

mere

pretext

for

discrimination. Id. at 804. To show pretext the plaintiff must
“identify such weaknesses, implausibilities, inconsistencies, or
contradictions in the purported reasons that a jury could find them
unworthy of credence.” Fane, 480 F.3d 534 at 541.

While the

burden does shift between the plaintiff and the defendant, the
ultimate burden of persuasion is always with the plaintiff. Id. at
538.
Even assuming Miller could make out a prima facie case -which
is

highly

questionable-,

it

is

clear

that

Grzegorek

had

a

legitimate, non-discriminatory reason for his appointing Boits and
Lawson over Miller.

Simply put, Boits and Lawson had as much, or

more, experience than Miller.

And, Miller has failed to provide

any evidence that would suggest Grzegorek’s decision was in any way
pretextual.
Unfortunately, Miller is under the belief that he is not
required

to

prove

indirect method.

discrimination

under

either

the

direct

or

(See DE# 39 p. 41, stating, “[t]herefore, Miller

[sic] not required to prove intentional race discrimination under
the direct method or McDonnell Douglas burden-shifting method of
proof.”). As such, he does not address Defendants’ arguments under
either of these methods at all.

Instead, Miller relies on Judge

Wood’s concurring opinion in Coleman v. Donahoe, where she calls
for a change in the pre-trial methods of proof and calls for

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collapsing the direct and indirect methods into one, more flexible
model.
is

667 F.3d 835 (7th Cir. 2012).

allowed

to

prove

race

As such, Plaintiff claims he

discrimination

under

straightforward analysis of discriminatory causation.”

“a

more

However,

even if her were permitted to bypass the traditional methods of
proof and use a discriminatory causation analysis, Miller fails to
provide any such analysis.

Instead, Plaintiff simply puts forward

the following scant facts:
[Miller] has proffered sufficient evidence of a
discriminatory motivation that he suffered a materially
adverse employment action, demotion after running for
Sheriff against Grzegorek and while doing so asked
Grzegorek to drop out of the race and support him. After
the election, which Grzegorek won, but before Grzegorek
was sworn into office, Miller had been reassigned and
transferred into the Property Room located in the County
Jail. After the election but before, Grzegorek sworn-in
Miller personally requested that Sheriff Grzegorek
appoint him to either the position of Assistant Chief,
St. Joseph County Police Department or Warden of the St.
Joseph County Jail.
(DE# 39, pp. 41-42).
Unfortunately,

for

Miller,

he

must

establish

his

discrimination claim through either the direct or indirect method.
He as failed to even attempt to satisfy either.

Moreover, even if

Judge Wood’s concurrence was the law of this Circuit, Plaintiff has
failed to prove that there exists a genuine issue of material fact
even under a discriminatory causation analysis. See e.g. Hitchcock
v. Angel Corps, Inc., 718 F.3d 733, 737 (7th Cir. 2013)(noting that
there is little “discernible difference” in the direct method and

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discriminatory causation).
While Miller has recited a few facts, he has wholly failed to
perform any of the discriminatory causation analysis he references.
This failure to put his scant facts into any legal context is
woefully insufficient to create a triable issue under any method of
proof. In fact, Miller’s legal analysis of his race discrimination
claims is so underdeveloped, it is actually nonexistent.

Miller’s Due Process claim must be dismissed
because he has not suffered a constitutional deprivation.
Miller asserts his constitutional rights under the Due Process
Clause were violated when he was assigned to the Property Room.1
The Due Process Clause of the Fourteenth Amendment provides that no
state “shall deprive any person of life, liberty, or property
without the due process of law.”

U.S. Const. Amend. 14.

Non-

pecuniary losses, though, “do not implicate the Constitution.”
Deen ve. Darosa, Kent Kettlekamp, 414 F.3d 731, 734 (7th Cir.
2005).

It is undisputed that Miller retained his pay, rank, and

seniority at all times, even during his time working in the
Property Room.

Because working in the Property Room did not cause

any pecuniary loss, Miller’s assignment to the Property Room cannot
constitute a due process violation.2

1

In fact, his brief says no more than that.

2

(DE# 39, p. 42).

Miller also ignores that fact that he accepted the assignment to the
Property Room.

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Miller’s First Amendment claim must be dismissed because
there is no evidence that Miller’s participation in the
2010 election was a motivating factor for the Sheriff’s decisions.
Miller argues that his participation in the 2010 Sheriff’s
Primary election was a substantial or motivating factor in his not
being appointed to Assistant Chief or Warden and in his being
assigned to the Property Room.

Politically motivated hiring,

firing, or transferring of government employees - with certain
exceptions for policy making positions and for employees having a
confidential relationship with a superior - can be a violation of
the First Amendment to the U.S. Constitution.
F.3d 758, 762 (7th Cir. 2004).

Hall v. Babb, 389

To make out a prima facie case of

this violation, a plaintiff must show, “first, that the plaintiff’s
conduct

was

constitutionally

protected,

and

second,

that

the

protected conduct was a substantial or motivating factor in the
employment decision.”

Id.

While it is true that Miller’s participation in the 2010
Primary election is protected activity, there is no evidence that
Miller was assigned to the Property Room or passed over for any
appointments based on that participation.

There are no direct

admissions or any other circumstantial evidence that could lead the
Court - or a jury- to that conclusion.

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Miller’s conspiracy claim must be dismissed
because there is no evidence the that Defendants
conspired to deprive him of any constitutional rights.
Miller claims his constitutional rights, under U.S.C. sections
1983 and 1985, were violated when Grzegorek, Kaps, Decker (a
private individual-independent contractor) and Thimons conspired to
racially discriminate against him with regards to promotions and
assigning to the Property Room. Miller’s full argument is, “During
[sic] meeting attended by Grzegorek, Kaps, Decker and Thimons [sic]
reached an understanding that Miller would be assigned and to the
Property Room.”

(DE #39, p. 42).

To establish such a conspiracy theory, Miller must demonstrate
that “(1) a state official and private individual(s) reached an
understanding to deprive him of his constitutional rights; and (2)
those

individual(s)

were

‘willful

participant[s]

in

joining

activity with the state or its agents.’” Williams v. Seniff, 342
F.3d 774, 787 (7th Cir. 2003)(citations omitted).
While Miller alleged a conspiracy, there is no evidence that
any such conspiracy existed.

At most, Miller points to a December

17, 2010, meeting, which included Grzegorek, Kaps and Thimons,
where Thimons allegedly called Miller “untrainable.” However, that
sole comment does nothing to show that these individuals reached an
understanding to deprive Miller of any of his constitutional
rights.

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Section 1983 claims against St. Joseph County, Sheriff
and St. Joseph County Police Department must be dismissed.
Plaintiffs have brought section 1983 claims against the St.
Joseph County Police Department, St. Joseph County, Sheriff, and
Merit Board. Defendants maintain that they are entitled to summary
judgment on each of these claims.
To start, Defendants contend that no section 1983 claim can be
maintained against the St. Joseph County Police Department because
it is merely a municipal department and not a suable entity.
Defendants are right in this contention.

Gillespie v. City of

Indianapolis, 13 F.Supp.2d 811, 816 (S.D. Ind. 1998), aff’d 185
F.3d 693 (7th Cir. 1999); Slay v. Marion County Sheriff’s Dept.,
603 N.E.2d 877, 887 (Ind. Ct. App. 1992).

Indeed, Plaintiff does

not argue otherwise and, therefore, Miller has waived any argument
to the contrary.

See Laborers’ Intern. Union of North America v.

Caruso, 197 F.3d 1195, 1197 (7th Cir. 1999).
Next, St. Joseph County argues it is not a proper defendant
because the official policy or customs are based on the Sheriff and
the Merit Board’s role as the final policymaking authority under
state law.

Miller named St. Joseph County as a defendant and,

thus, is suing the Board of Commissioners of St. Joseph County,
since the Board of Commissioners is the executive of the county.
Waldrip

v.

Waldrip,

976

N.E.2d

102,

118

(Ind.

App.

2012).

Statutorily, the Board of Commissioners is responsible for keeping
a jail open and in good repair. Ind. Code § 36-2-2-24(a).
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In

Indiana, the sheriff’s office is an independent office established
under Indiana Constitution.

Ind. Const. Art. 6 § 2. Further, “the

law is well-settled that county commissioners do not have control
over the acts of a sheriff.” Waldrip, 976 N.E.2d at 119 (quoting
Robins

v.

Harris,

740

N.E.2d

914,

919

(Ind.

App.

2000).

Accordingly, St. Joseph County is entitled to summary judgment on
plaintiff’s Monell claim.
Finally, Defendants contend that the Sheriff or Merit Board
are entitled to summary judgment because Miller has failed to show
that any policies or customs of the Sheriff or Merit Board caused
Miller’s alleged deprivations.

Under the familiar case of Monell

v. New York City Department of Social Services, 436 U.S. 658, 694
(1978), the Supreme Court determined that municipalities and other
local governmental units, such as the St. Joseph County Sheriff or
Merit Board, could only be sued under section 1983 where the
"policy

or

custom"

of

the

entity

caused

a

constitutional

deprivation.
There

has been no evidence in this case to establish that

Miller’s alleged injury came at the hands of any sort of "custom or
policy" that would make either the Sheriff or Merit Board liable in
this case.

Nevertheless, Plaintiff fails to address this in his

response and, again, this Court finds such any argument to the
contrary waived.

Caruso, 197 F.3d at 1197.

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Title VII disparate impact claim against
Sheriff and Merit Board must be dismissed
because there is no evidence that the complained
of policies and practices resulted in a disparate impact.
Miller points to a number of policies and practices he
believes

causes

a

disparate

impact

on

African-American

merit

officers, including:
a.

Failure by the Sheriff and Merit Board to set schedule of
annual examinations.

b.

Failure of the Merit Board to approve the
administration of examinations for promotion.

c.

The failure of defendants to conduct written promotional
examinations annually for ranks below Captain.

d.

Failure to establish and utilize eligibility pool/list for
filling department vacancies.

e.

Sheriff with approval of the Sheriff’s Merit Board filled open
merit officer positions through temporary appointments based
on subjective unpublished criteria.

f.

Sheriff and Merit Board failure to publicly post within the
Department notices that vacancies existed in one or more
ranked positions.

g.

Requirement that each candidate in eligibility pool reapply
each year for re-examination.

h.

Failure of Merit Board to enforce Qualifications for Rank
provision of the Manual.

i.

Authority of Merit Board to return an officer appointed to
rank to his/her former rank without notice or hearing.

j.

Adoption by Sheriff and Sheriff’s Merit Board of policy,
practice/custom of “no testing temporary appointment only”.

k.

That the practices, policies and customs of defendants over
the years has resulted in the promotion or appointment of zero
African-American to command positions since 1998 until after
Plaintiff filed suit.

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design and

Miller has also provided, which this Court has not recounted, a
number of temporary appointments made by Sheriff Grzegorek over the
past few years, apparently in an effort to establish that the above
policies resulted in a disparate impact on African-American merit
officers.

Simply

put,

Miller

recounts

that

17

of

Sheriff

Grzegorek’s 18 temporary appointments were white men. (DE# 42-1,
pp. 3-4). However, merely listing a number of employment practices
along with a racial imbalance of temporary appointments is not
sufficient to make out a prima facie case of disparate impact.
Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 657 (1989).
Miller will “also have to demonstrate that the disparity [he]
complains of is the result of one or more of the employment
practices that [he is] attacking here, specifically showing that
each challenged practice has a significant disparate impact on
employment

opportunities

for

whites

and

nonwhites.

To

hold

otherwise would result in employers being potentially liable for
‘the myriad of innocent causes that may lead to statistical
imbalances in the composition of their workforces.’” Id.(quoting
Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 992 (1988)). This
was never done.

The problem is that Miller’s arguments are not

developed. Miller has not specifically shown that any of the
complained of practices had a significant disparate impact on nonwhites.

As such, his disparate impact claims fail.

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Miller’s intentional infliction of emotional distress claim must be
dismissed because there is no evidence of outrageous conduct and
Miller failed to provide the requisite tort claim notice.
Intentional infliction of emotional distress under Indiana law
is the intent to harm someone emotionally and requires that the
defendant: (1) engage in extreme and outrageous conduct; (2) which
intentionally or recklessly; (3) causes; (4) severe emotional
distress to another.

Curry v. Whitaker, 943 N.E.2d 354, 361 (Ind.

Ct. App. 2011) (affirming summary judgment for defendants against
intentional infliction claim). The requirements to prove this tort
are rigorous and it is found only when the conduct “exceeds all
bounds typically tolerated by a decent society and causes mental
distress of a very serious kind.” Curry, 943 N.E.2d at 361.

Any

such claim against a county requires notice withing 180 days after
the loss occurs.

Ind. Code § 34-13-3-8(a).

Not only is there nothing in the record to support such a
claim, but Miller failed to serve a notice to the Sheriff within
the 180 day notice period after his alleged loss occurred.

The

claim cannot survive the summary judgment stage for both reasons.

CONCLUSION
After due consideration, Plaintiff’s motion for leave to
complete the filing instanter is GRANTED. Accordingly, Plaintiff’s
February 22 and 23, 2014 filings (DE##’s 41 and 42) are deemed
timely filed.

And, for the reasons set forth above, Defendants’

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summary judgment is GRANTED.

Accordingly, the Clerk is ORDERED to

close this case.

DATED:

July 30, 2014

/s/RUDY LOZANO, Judge
United States District Court

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