Vukadinovich v. Hanover Community School Corporation et al

Filing 325

ORDER: Plaintiff Vukadinovichs motion for partial summary judgment on the due process issue is DENIED. 279 Defendants motion for summary judgment 285 is DENIED with respect to the ADEA and retaliation claims against the School but GRANTED with r espect to the individual defendants; GRANTED with respect to the state statute and contract claims; DENIED with respect to the constitutional Due Process claims (it only applies as against Biggs and Kaiser in their individual and official capacities , and the School through the official capacity claims); and GRANTED with respect to the attempts at stand-alone section 1983 claims (sounding in a failure to train and implementing an unconstitutional policy). Defendants motion for leave to file exc esspages in support of their motion is GRANTED. 283 Pla motion to file excessive pages is also GRANTED. 291 Pla motion for oral argument on his motion for partial summary judgment is DENIED. 288 Pla motion for leave to submit an inadvertently omitted exhibit (his own affidavit) is GRANTED. 294 Pla motion to strike the defendants brief in support of their motion for summary judgment is DENIED. 295 Pla motion for leave to file a supplementary exhibit (an e-mail he received on Septembe r 1, 2014) is DENIED. 296 The defendants request in their reply in support of their motion for summary judgment that two of Pla affidavits be stricken is not a motion, and therefore requires no disposition. [298 at 2-4.] Pla motion to strike the defendants reply in support of their motion for summary judgment is DENIED. 300 Pla motion for leave to submit (another) supplemental exhibit 302 documents from a September 2014 school board meeting evidence created several months after the cl ose of discovery, and after summary judgment briefing was complete) is DENIED. Pla third opposed motion to file a supplemental exhibit is DENIED for the same reasons as the other two pending motions seeking to submit supplemental exhibits. 303 P la motion for sanctions is DENIED. 309 The dates for trial and the final pretrial conference were vacated in a previousorder (DE 323), and no new date was set then. (Telephonic Status Conference set for 10/15/2015 01:30 PM in US District Court - Hammond before Chief Judge Philip P Simon.) Signed by Chief Judge Philip P Simon on 9/14/2015. (cc: Vukadinovich) (rmn)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
BRIAN VUKADINOVICH,
Plaintiff,
v.
HANOVER COMMUNITY SCHOOL
CORPORATION, BOARD OF TRUSTEES
OF HANOVER COMMUNITY SCHOOL
CORPORATION, Former Superintendent
CAROL A. KAISER, Principal JUSTIN
BIGGS, Trustee MARY JOAN DICKSON,
Trustee JULIE MUELLER, Former Trustee
PAT KOCOT, Former Trustee DANA
GRINER and TONY HIATT
Defendants.

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2:13-cv-00144-PPS

OPINION AND ORDER
Plaintiff Brian Vukadinovich, representing himself, has moved for partial
summary judgment, and his former employer the defendants Hanover School (along
with certain named school employees and trustees) have filed a cross-motion for
summary judgment. This Order has been a long time coming because, in addition to
those motions, the parties have filed more than 10 peripheral motions and thousands of
pages of evidence. But this over-litigated case is, at bottom, a simple single-plaintiff
employment dispute which alleges age discrimination and retaliation, constitutional
claims under § 1983, and state claims for breach of contract and violation of state laws
relating to public employment.

Vukadinovich taught at Hanover Schools for eight years, until his employment
ended in June 2012. He alleges that his contract was not renewed due to his age (60) and
in retaliation for his successful settlement two years before in a lawsuit against his
previous employer, the Hammond Schools. He also alleges that he was not afforded a
meeting with the School’s governing body, in violation of his constitutional due process
rights, as well as in violation of his contract and state law.
Vukadinovich seeks partial summary judgment on his due process claim (DE
279.) He attached a mountain of documents he feels support his motion, although some
documents appear twice in that filing. (DE 281.) The School defendants (as I’ll call them,
because they all have the same attorneys and have acted jointly in this case) also seek
summary judgment. (DE 285.) This Order will address the motions for summary
judgment. It will then go on to address the rest of the pending motions to clear the
docket and allow this case to move forward to disposition.
BACKGROUND
Vukadinovich worked for Hanover Schools for eight school years, from August
2004 through June 2012. By 2012 he was a teacher of permanent status with, he alleges,
an exemplary work record, positive evaluations, and no disciplinary actions. (DE 54, 461 at 3, 10; DE 318 at 68-69.) He taught three middle school classes in a program called
“Project Lead the Way” for which Vukadinovich was certified. (DE 284 at 2.)
Vukadinovich’s amended complaint alleges that School Principal Justin Biggs informed
Vukadinovich by letter in May 2012 that Biggs had made a preliminary decision to
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discontinue Vukadinovich’s teaching contract at the end of the 2011-2012 school year.
The letter was a mess – it cited the wrong section of the applicable Indiana statute, and
it told Vukadinovich that he could request a meeting with the superintendent which, as
we will see, the statute doesn’t actually require. (DE 281-4 at 49.)
The letter stated that the reason for the nonrenewal of the contract was a
“reduction in force.” Id. Vukadinovich alleges that this was a pretext, and Biggs
actually made this decision based on Vukadinovich’s age and in retaliation over his
July 2010 settlement in a case against Hammond Schools. One might wonder why the
principal of Hanover Schools would care about a settlement with some other school
system, but as it turned out, the principal in question, Biggs, worked at the Hammond
Schools at the time of the settlement. According to Vukadinovich, when Biggs told him
his contract was not being renewed, Biggs referenced the Hammond settlement and
called Vukadinovich an “old man.” (See DE 281-5, EEOC Charge; DE 294 at 5, Affidavit
of Brian Vukadinovich.) In particular, according to Vukadinovich, when delivering him
the news about his nonrenewal, Biggs said that “I hope you saved some of that money
from the Hammond School settlement,” and “I have friends in School City of
Hammond, you know,” and “Did you really think there would be no price to pay?” and
“I hope you saved some of that settlement money old man”(DE 54 at 9, Complaint
(emphasis in Complaint).)
Vukadinovich says he was the only fulltime teacher at Hanover Schools to be
non-renewed at the end of the 2011-2012 year so it wasn’t much of a “reduction in
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force” — if it was one at all. (Vukadinovich attached the School bylaws on reduction in
force, but the edition was revised on 10/9/12, so it’s unclear whether they were in effect
at the time of Vukadinovich’s non-renewal. [DE 281-5 at 69.]) The classes he taught
were not offered the year after his contract was not renewed.
Vukadinovich requested a meeting with the superintendent, and that meeting
was held on May 11, 2012. The superintendent at the time was a woman named Carol
Kaiser. There don’t appear to be detailed records of that meeting, but Vukadinovich
asked Kaiser about the meeting during her deposition. When asked the open-ended
question “did you give me any information at that meeting at all?,” Kaiser said she did
not recall. (DE 318 at 49.) Steve Landis, another teacher, also attended the meeting (it
seems that Vukadinovich brought him). (DE 318 at 71-72.) During the meeting, Principal
Biggs walked in but was told to leave (DE 318 at 72-76).
At her deposition, Vukadinovich asked Kaiser about the substance of the
meeting. In particular, he had asked her for specific statistics about enrollment and the
number of students he would have to get into a class to avoid being a casualty of the
reduction in force, and she did not give him statistics, saying “there is no magic
number.” (DE 318 at 77.) Although Vukadinovich’s non-renewal was based on a
supposed reduction in force, the overall number of teachers went up. (Id.) Kaiser
remembered that another teacher was permitted to make announcements and post fliers
about his courses, but didn’t recall if Vukadinovich asked her at the meeting to let him
do the same thing. (DE 318 at 77-78.) She thought he had asked her in writing to let him
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do that, and she then reviewed a post-meeting e-mail from Vukadinovich in which he
asked her to let him do that. (DE 318 at 80.) She did not recall ever responding to that email. (DE 318 at 82.) Vukadinovich then took Kaiser through various exhibits that
seemed to show classes with low enrollment, but there’s no suggestion that these
classes bore any relation to Vukadinovich’s classes. (DE 318 at 85-92.)
After the meeting with the superintendent, Vukadinovich did send an e-mail to
the superintendent, copied to the board members, confirming that he was told at the
meeting that the problem was that not enough students were taking his classes. But
despite his request, he was never told what number would be enough to stave off his
termination. He wrote in his e-mail that he hadn’t heard evidence that convinced him of
the appropriateness of his contract not being renewed on the basis of a reduction in
force. (DE 281-5 at 30.)
Vukadinovich alleges that a younger teacher whose classes were under-enrolled
at the same time was offered opportunities to advertise his classes that weren’t offered
to Vukadinovich. (DE 54 at 12; DE 281-5 at 31-35.) The defendants note that, while the
classes and teaching qualifications appear similar, Vukadinovich was not actually
qualified to teach the classes that the younger teacher taught (graphic design and
layout, and graphic imaging technology). (DE 286 at 12-14.)
The superintendent told the School board that Vukadinovich should be nonrenewed because of a justifiable reduction in force, with the further related explanation
that Vukadinovich’s classes were under-enrolled. (DE 54 at 11; DE 281-4 at 50.) The
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superintendent’s letter to the board included the same incorrect statute as the letter to
Vukadinovich (although both correctly stated that the basis was a justifiable decrease in
the number of teaching positions).
Vukadinovich alleges that the School then added procedural injury to the
substantive injury of nonrenewal when the Board of Trustees refused his request for
what he believed to be a statutorily mandated meeting. (DE 54 at 13; DE 281-4 at 51.)
The School administration responded that “I.C. 20-28-7.5 does not provide a statutory
right to a private conference with the Board for a teacher who is being declined via the
non-continuation of contract statutory process.” (DE 281-4 at 52.)
Vukadinovich’s procedural claims arise under both state and federal law:
Vukadinovich alleges breach of contract based on his termination for a reason not
allowed under the contract, and for the School’s denial of a meeting with the governing
body as set out in his contract. (DE 54 at 17.) Along these same lines, Vukadinovich
argues that the School didn’t comply with state law, Ind. Code 20-28-7.5, which requires
the School to afford a meeting with the governing body to a teacher terminated as part
of a justifiable reduction in force. (DE 54 at 18.) These really raise the same issues as one
another because a teacher’s contract is written pursuant to state law and the procedure
applicable to a teacher’s employment. If the State afforded him rights, then the denial of
those rights could also qualify as a denial of his constitutional due process right.
The board ultimately voted to approve the principal’s and the superintendent’s
recommendation that Vukadinovich’s contract not be renewed due to a reduction in
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force. There is evidence that at least one board member sought additional information
about Vukadinovich’s non-renewal, but the superintendent did not provide as much
additional information, or perhaps didn’t do it as quickly, as the board may have liked.
(It’s difficult to say for certain because it’s apparent from the deposition transcripts that
the deponents’ memories of the details are hazy.) (DE 318 at 32-33, 39-41.) Board
member Mary Joan Dickson said that the board’s established procedure for reducing
staff levels was to “take[] advice from the attorney and the superintendent. That is our
job to take their recommendations and act on them.” (DE 281-7 at 17 (Deposition
Transcript at 75).) Vukadinovich asked her if part of their procedure was getting the
teacher’s side of the story and she said, “At that time it was not part of the procedure.”
(DE 281-7 at 17.)
Vukadinovich seems to assert a claim via 42 U.S.C. § 1983 that the individual
defendants violated his rights by not getting trained. In making this conclusory
allegation in his amended complaint, he conflates individual and institutional liability,
as well as personal versus policy liability, under section 1983. I will read this training
claim as Vukadinovich’s avenue to hold the School responsible for the constitutional
wrongs he alleges against the individuals. This claim is along the same lines as his claim
that the School had a general practice of flouting the law. He quotes an e-mail among
administrators in which one wrote, “Of course, for ‘political reasons’ you can ignore

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any law that stands in your way or at least distort it!!!....right?”1 (DE 54 at 15; DE 281-6
at 1.) Reading the amended complaint liberally, Vukadinovich seems to want to use the
alleged policy announced in that email to hold the School liable for any wrong that may
have befell him.
The defendants moved for summary judgment on all of Vukadinovich’s claims:
age discrimination, retaliation, the state law claims, the constitutional due process
violation, and the section 1983 violations. (DE 285.) Vukadinovich moved for summary
judgment on the due process issue. (DE 279.)

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Vukadinovich is fond of quoting this bizarre comment from an e-mail the main
content of which is apropos of nothing, at least with respect to Vukadinovich or the
current case. The comment is at the end of an e-mail among administrators saying that
Indiana law requires schools to “have a media program that is an integral part of the
educational program.” (DE 281-6 at 1.) I can’t help but comment that this might actually
bear on why the school allowed the younger teacher whose classes were underenrolled
to advertise, but didn’t offer the same to Vukadinovich – the other teacher’s classes had
to do with computer graphics and design, which might have satisfied this “media
program” statute. Vukadinovich taught “industrial arts” and “industrial technology”
classes, which he described as the new names for what “they used to call [] shop
classes.” (DE 318 at 99.)
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DISCUSSION
Summary judgment is proper “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). A genuine dispute about a material facts exists only “if the
evidence is such that a reasonable jury could return a verdict for the non-moving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In making this
determination, I must construe all facts and draw all reasonable inferences from the
record in the light most favorable to the nonmoving party. Id. at 255. But the nonmoving
party is not entitled to the benefit of “inferences that are supported by only speculation
or conjecture.” Argyropoulos v. City of Alton, 539 F.3d 724, 732 (7th Cir. 2008) (quotation
marks and citation omitted).
1.

Age Discrimination and Retaliation

The defendants argue that Vukadinovich can’t prove age discrimination or
retaliation based on his settlement of a prior lawsuit against Hammond Schools. In
reality, Vukadinovich has direct evidence of both claims. I’ll take up the age
discrimination claim first and then move to the claim of retaliation.
The ADEA makes it “unlawful for an employer . . . to discharge any individual
or otherwise discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment because of such individual’s age.” 29
U.S.C. § 623(a)(1); see, e.g., Martino v. MCI Communs. Servs., 574 F.3d 447, 452 (7th Cir.
2009). The ADEA sets a high bar: the plaintiff must prove by a preponderance of the
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evidence that age was the but-for factor — not simply a motivating factor — behind the
adverse employment action. Gross v. FBL Fin. Servs., 557 U.S. 167, 177-78 (2009). To
prevail on a discrimination claim under the ADEA, Vukadinovich may proceed under
either the direct or indirect method of proof. Fleishman v. Cont’l Cas. Co., 698 F.3d 598,
603 (7th Cir. 2012); Atanus v. Perry, 520 F.3d 662, 671 (7th Cir. 2008). Under the direct
method, a plaintiff must present direct and/or circumstantial evidence that “points
directly to a discriminatory reason for the employer’s action.” Fleishman, 698 F.3d at 603.
For starters, it’s rather apparent that Vukadinovich and Biggs, the principal,
simply did not get along. (See, e.g., DE 281-5 at 10-14, 19, 26-28, 29-30.) On the other
hand, there’s also strong and consistent testimony that the reason for cutting
Vukadinovich’s courses was a lack of enrollment. And the School of course is entitled to
decide what classes it wants to offer. The problem for the defendants is Vukadinovich’s
allegation (which I take as true at this point because he is the nonmoving party) that, as
he handed Vukadinovich the letter that was basically a pink slip, Principal Biggs called
Vukadinovich an “old man” and made comments, including that he “hope[d]
[Vukadinovich] saved some of that money from the Hammond School Settlement.” (DE
54 at 9.) With nothing in the defendants’ briefing citing information directly from Biggs,
this isn’t even a he-said/he-said situation; it’s just he-said. So Vukadinovich has direct
evidence of discrimination.
The defendants cast these comments as mere workplace ribbing, or stray
remarks. This ignores the body of Seventh Circuit law related to the timing of such
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unfortunate comments. For instance, in addressing the subject in Fleishman v. Cont’l Cas.
Co., the Seventh Circuit wrote:
[I]solated comments are not probative of discrimination unless
they are “contemporaneous with the discharge or causally
related to the discharge decision-making process.” Gleason v.
Mesirow Fin., Inc., 118 F.3d 1134, 1140 (7th Cir. 1997). This
comment is not contemporaneous because it came ten months
before Fleishman’s termination. See Markel v. Bd. of Regents of
Univ. of Wis. Sys., 276 F.3d 906, 910-11 (2001) (two months before
termination not contemporaneous); Kennedy v. Schoenberg, Fisher
& Newman, Ltd., 140 F.3d 716, 724 (7th Cir. 1998) (five months
not contemporaneous). More importantly, there is no
connection between it and the termination decision. Fleishman
fails to explain how this comment relates to Continental’s
decisions, when the record reflects a clear, causally connected
chain of events beginning with Husnik’s and others’ complaints
about Fleishman’s work, leading to Izzo’s investigations into
these concerns, and ending with Izzo’s decision to terminate
Fleishman for inadequate performance. See Marshall v. Am.
Hosp. Ass’n, 157 F.3d 520, 526 (7th Cir. 1998) (requiring plaintiff
to connect noncontemporaneous comments to the employer’s
decision).
Fleishman, 698 F.3d at 605. Here, Biggs made the ageist comments at the very moment
he terminated Vukadinovich.
The defendants argue that Biggs didn’t make the final decision, which removed
the causal connection between the discriminatory comment and the adverse action. (DE
286 at 10, citing Sun v. Board of Trustees of the University of Illinois, 473 F.3d 799, 813 (7th
Cir. 2007) (quoting Willis v. Marion Cnty. Auditor’s Office, 118 F.3d 542, 547 (7th Cir.
2007)).) But the defendants don’t explain the nonrenewal process. Frankly, based on
what I’ve read in this case, it appears to me that the decision to not renew Vukadinovich

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was set in motion by Biggs, and it wouldn’t have happened without his push. There’s no
evidence that Superintendent Kaiser or the board were champing at the bit to get rid of
Vukadinovich. Yes, the superintendent met with Vukadinovich and could have
declined to recommend non-renewal to the board, but there’s no information about
policy and how likely that was to happen. The same goes for the board’s vote. Without
that information I can’t say that Biggs wasn’t the cause of Vukadinovich’s termination.
The burden of proof is ultimately on Vukadinovich, but at this point I have to construe
facts in his favor because he’s the nonmoving party.
At the very last, Vukadinovich has a cat’s-paw argument for causation because
there is no evidence that Kaiser or the board did their own thorough analysis of the
decision — they relied on Biggs. See, e.g., Martino v. MCI Communs. Servs., 574 F.3d 447,
452-453 (7th Cir. 2009) (“The company can defeat this tack – what we call the cat’s paw
theory – by showing that, even if Gross was biased and attempted to get Martino
terminated for this reason, the decisionmaker did an independent analysis and came to
his own conclusion.”)
Let’s move now to the retaliation claim. The analysis is the same. The
background to Vukadinovich’s retaliation claim can be found in the earlier lawsuit he
filed against his previous employer, the School City of Hammond. That case was
handled by Judge Van Bokkelen. See, Vukadinovich v. School City of Hammond, 2:10-cv00257-JVB-APR, filed June 24, 2014, terminated Nov. 16, 2010. Vukadinovich claims in
this case that Biggs was still steamed in 2012 about Vukadinovich settling that case
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against the Hammond Schools, where Biggs happened to work when Vukadinovich got
the settlement. That case, too, claimed age discrimination, along with national origin
discrimination under Title VII. (Case No. 2:10-cv-00257, DE 76 at 1-2.)
“[T]he ADEA prohibit[s] employers from retaliating against employees who
exercise their rights under those statutes. In order to prove a claim of retaliation, the
employee must show (1) he engaged in a statutorily protected activity; (2) he suffered
an adverse action; and (3) a causal connection between the two.” Silk v. Bd. of Trs., 795
F.3d 698, 710 (7th Cir. 2015) (quotation marks, citation omitted). The defendants agree
that Vukadinovich engaged in statutorily protected activity by filing the lawsuit against
Hammond. And they also agree that he suffered from an adverse employment decision
— his contract was not renewed. What they take issue with is whether there is any
evidence connecting those two things. See, e.g., Greengrass v. Int’l Monetary Sys., Ltd., 776
F.3d 481, 485 (7th Cir. 2015). In other words, the School claims there is no evidence of a
causal connection.
To accept the School’s argument is to ignores what Vukadinovich claims was
said to him when he was sacked. Recall that Vukadinovich claims that when Biggs
delivered him the news about the nonrenewal, Biggs made a comment about the earlier
settlement with Hammond: “I hope you saved some of that money from the Hammond
School settlement,” and “I have friends in School City of Hammond, you know,” and
“Did you really think there would be no price to pay?” and “I hope you saved some of
that settlement money, old man.” (DE 54 at 9, Complaint (emphasis in Complaint).)
13

The defendants say the two-year gap from the time of the Hammond settlement
and Biggs’ comment and the fact that the board ultimately voted to not renew
Vukadinovich’s contract sever any causal connection. This makes no sense. The
important question from a timing point of view is the amount of time that elapsed from
when Biggs made his threatening comments not how much time elapsed from when
Hammond case was settled. Here, the threatening comments and the adverse action
were simultaneous. So, taking Vukadinovich’s statements as true, Biggs’ comments
directly link Vukadinovich’s non-renewal to the Hammond Schools’ case. In Biggs’
words, it was the “price to pay” for the Hammond settlement. And also, as with the age
discrimination claim, with respect to causation, the School hasn’t shown that Biggs’
decision not to renew the contract wasn’t all but final in either a literal or cat’s-paw
sense.
Because Vukadinovich may be able to convince a reasonable jury that his
contract was not renewed based on his age or in retaliation for his successful
discrimination lawsuit against Hammond Schools, the defendants’ motion for summary
judgment on the ADEA claim and the retaliation claim are DENIED. Under the cat’spaw theory, at least, a jury could impose liability against the School. So these claims
will continue against the School and the Board. But because the individual defendants
are not “employers” under the ADEA, the age discrimination and retaliation claims will
be dismissed against them. Horwitz v. Board of Education of Avoca School Dist. No. 37, 260

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F.3d 602, 610, n. 2 (7th Cir. 2001); O’Reagan v. Arbitration Forums, Inc., 121 F.3d 1060,
1066, n. 8 (7th Cir. 1997).
2.

Due Process Claims

Vukadinovich and the defendants both seek summary judgment on the due
process claim, which encompasses interrelated state and federal claims. Vukadinovich
primarily argues that Indiana law required the Board to meet with him. But he also
argues that their decision to cancel his contract, without giving him a chance to tell his
side of the story and without reviewing enough information, was a violation of his
constitutional due process rights. (See, e.g., DE 280 at 13, 18, 21.) Federal due process
turns on this property interest. In order to deprive someone of a property interest, the
Constitution requires that they be afforded adequate due process. See, e.g., Cleveland Bd.
of Ed. v. Loudermill, 470 U.S. 532, 542 (1985).
First off, “Defendants agree that the Plaintiff had a property interest in his
employment by virtue of both the Indiana statutes and his contract.” (DE 284 at 10.)
This is undoubtedly correct. See, e.g., Stewart v. Ft. Wayne Community Schools, 564 N.E.2d
274, 280 (Ind. 1990) (“[W]e believe that her statutory status as a tenured teacher does
vest in her a property interest in her job that entitles her to the protections afforded by
substantive due process.”).
As far as notice goes, Vukadinovich wanted statistics about enrollment as part of
the notice – he wanted the School to justify its decision to him. But there’s no suggestion
that the sloppy drafting of the letter and the citation to the wrong code section threw
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him off when it came to actually understanding the basis for his nonrenewal. His e-mail
after the meeting with Superintendent Kaiser indicated that he understood that his
contract wasn’t being renewed due to a reduction in force. His asking for enrollment
numbers and permission to advertise his course offerings to would-be students shows
that he understood that the reduction in force decision was related to course content
and enrollment numbers. (See DE 318 at 111-12.) So there is no question that
Vukadinovich received actual notice of the impending adverse employment action and
the purported basis for it.
The termination of an Indiana public school teacher’s employment is governed
by Indiana Code § 20-28-7.5. Sub-section 2 addresses the rights of a teacher with respect
to private conferences:
(a) Before a teacher’s contract is canceled, the teacher has the
following rights:
(1) The principal shall notify the teacher of the
principal’s preliminary decision. The notification must
be:
(A) in writing; and
(B) delivered in person or mailed by registered or
certified mail to the teacher at the teacher’s last
known address.
(2) The notice in subdivision (1) must include a written
statement, subject to IC 5-14-3-4, giving the reasons for
the preliminary decision.
(3) Notification due to a reduction in force must be
delivered between May 1 and July 1.
(b) For a cancellation of a teacher’s contract for a reason other
than a reduction in force, the notice required under subsection
(a)(1) must inform the teacher that, not later than five (5) days
after the teacher’s receipt of the notice, the teacher may request
a private conference with the superintendent. The
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superintendent must set the requested meeting not later than
ten (10) days after the request.
Burns Ind. Code Ann. § 20-28-7.5-2.
The rest of the sub-section lays out conference procedures for situations in which
the teacher is entitled to and requests a conference with the superintendent: the teacher
may bring a representative, the superintendent shall make a recommendation to the
governing body after the conference, and if the teacher doesn’t request a superintendent
conference then the principal’s preliminary decision is final. After the conference with
the superintendent, a teacher can request a conference with the governing body that
will make the final decision. Id. at (c)-(f). Under § 20-28-7.5-3, the governing body may
vote on cancellation of a contract at the first public meeting after a teacher’s private
conference with the superintendent or governing body, as applicable. A teacher’s
contract “continues in force on the same terms and for the same wages . . . for the next
school term following the date of the contract’s termination unless one (1) of the
following occurs: (1) The school corporation refuses continuation of the contract under
this chapter.” Ind. Code § 20-28-7.5-6.
The statute above lays out the procedural requirements. “If the procedural
requirements are followed, including the assignment of a legal cause for cancellation of
the contract, and if there is substantial evidence presented which tends to support the
legal cause, and if the hearing is, in fact, fair, the proceeding is lawful.” Stewart, 564
N.E.2d at 277(quotation marks, brackets, citation omitted).

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The issue of whether Indiana state law was followed here requires statutory
interpretation.2 “As with any question of statutory interpretation, our analysis begins
with the plain language of the statute. It is well established that, when the statutory
language is plain, we must enforce it according to its terms.” Jimenez v. Quarterman, 555
U.S. 113, 118 (2009) (citations omitted). When considering an Indiana law:
[W]e must interpret the statute as we think the Indiana Supreme
Court would interpret it. In Indiana, the lodestar of statutory
interpretation is legislative intent, and the plain language of the
statute is the best evidence of that intent. Unless a statute indicates
otherwise, we must give the words in the statute their plain and
ordinary meaning, and we must examine the statute as a whole,
avoiding both excessive reliance on strict literal meaning and selective
reading of individual words.
United States v. Mohamed, 759 F.3d 798, 804 (7th Cir. Ind. 2014) (citations, ellipsis,
quotation marks omitted.)
The first part of section 20-28-7.5-2,3 subsection (a), addresses notice
requirements, including the timing of a notice of non-renewal due to a reduction in
force; Vukadinovich does not contest that his notice was timely or that he didn’t
understand the basis for his non-renewal. Subsection (b) says that for cancellation of a

2

The parties did not cite any cases explicating the application of I.C. § 20-28-7.52, and the defendants specifically noted that the statute has only been in effect since
2011, so there are no reported cases construing these laws in their current form. (See DE
284 at 7.)
3

The defendants argue about the difference between cancellation versus nonrenewal of a contract. That’s a more difficult distinction to draw, and I’d rather leave
that for the Indiana courts. Vukadinovich’s due process claim doesn’t relate to the
wording of the reason for his non-renewal – it was reduction in force, that’s not in
question - but rather relates to the notice and opportunity-to-respond requirements.
18

contract “for a reason other than a reduction in force” (emphasis added), the notice must
inform the teacher that he may request a private conference with the superintendent. So
this subsection doesn’t confer a right to a private conference with the superintendent for
a teacher not being renewed based on reduction in force, which means it didn’t confer
such a right on Vukadinovich. Subsection (c) says the teacher can bring a representative
to the superintendent conference; this obviously only applies to teachers entitled to a
superintendent conference. Subsection (d) requires the superintendent to make a
written recommendation to the governing body after the conference. Subsection (e) says
that if the teacher doesn’t request a superintendent conference, the principal’s decision
is final. Finally, subsection (f) says that a teacher “is entitled to an additional private
conference with the governing body before the governing body makes a final decision,”
so long as the teacher requests such a conference “not later than five (5) days after the
initial private conference with the superintendent.” (Emphasis added.) Because (f)
presupposes a conference with the superintendent before a conference with the
governing body, it must flow from the statute’s earlier statement of who has a right to a
superintendent conference, which doesn’t include teachers not renewed based on a
reduction in force. So section 20-28-7.5-2 is like a flow chart: notification, a meeting with
the superintendent for teachers non-renewed for any reason other than reduction in
force, and then a meeting with the governing body after the superintendent meeting.
Teachers not renewed based on a reduction in force branch off right after the notice
requirement, and (f) doesn’t apply to them.
19

Vukadinovich was not entitled under state law to a conference with the
superintendent or the board. For this reason, the School’s motion for summary
judgment with respect to the state law due process claims is GRANTED.
Now we move to the federal constitutional due process question. Vukadinovich’s
briefing indicates that he does not believe that the reduction in force that led to his nonrenewal was justified. But that’s beside the point when considering questions of
procedural due process. The issue is whether Vukadinovich had the necessary measure
of process. The School says that it made a valid decision about what classes to offer for
non-discriminatory reasons, which is its prerogative. The Seventh Circuit has been clear
that schools should be afforded some measure of autonomy when their highly
regulated sector leaves room for it:
Judges must be sensitive to the effects on education of heavy-handed
judicial intrusion into school disciplinary issues, or heavy-handed
administrative intrusion required by judges interpreting Title IX and
other statutes that, along with free-wheeling interpretations of the
speech and religion clauses of the First Amendment, have made
education one of the most heavily regulated American industries. Let
us not forget that one component of academic freedom is the right of
schools to a degree of autonomy in the management of their internal
affairs.
Doe v. St. Francis Sch. Dist., 694 F.3d 869, 873 (7th Cir. 2012) (citations omitted). That
autonomy surely applies to deciding elective course offerings.

20

The Fourteenth Amendment doesn’t by itself create a private right of action, but
such actions can be brought through 42 U.S.C. § 1983.4 A section 1983 claim requires the
plaintiff to show that (1) the conduct was committed by a person acting under color of
state law, and (2) the conduct deprived the plaintiff of rights, privileges, or immunities
secured by the Constitution or laws of the United States. Doe v. Smith, 470 F.3d 331, 338
(7th Cir. 2006) (abrogated on other grounds). Under the Due Process Clause:
[A] deprivation of life, liberty, or property [must] be preceded by
notice and opportunity for hearing appropriate to the nature of the
case. [The Supreme Court has] described ‘the root requirement’ of the
Due Process Clause as being that an individual be given an
opportunity for a hearing before he is deprived of any significant
property interest. This principle requires ‘some kind of a hearing’
prior to the discharge of an employee who has a constitutionally
protected property interest in his employment.
Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 542 (U.S. 1985) (quotation marks, citations
omitted).
In the context of public employment, this hearing requirement is an
acknowledgment of the competing interests at play: the private interest in retaining
employment, the governmental interest in the expeditious removal of employees the
government has legitimate reason to remove, and the risk of an erroneous termination.
Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 543 (1985) (citing Mathews v. Eldridge, 424

4

Vukadinovich wants his 1983 claim to stand on its own (DE 292 at 22-25), but
1983 is just a way for a plaintiff to say “my rights were violated”; the plaintiff needs to
connect 1983 to something else to explain which right was violated.
21

U.S. 319, 335 (1976)). The hearing need not be elaborate, and may be “something less”
than a full evidentiary hearing. Id. at 545.
In this case, Vukadinovich had a hearing with Superintendent Kaiser. He had an
opportunity to explain his side of the story, although based on Kaiser’s deposition it
sounds like he mostly asked her to justify the decision with hard numbers, and she
declined to do that. There’s no reason, everything else aside, that this meeting with the
superintendent couldn’t have been sufficient to qualify as the process that
Vukadinovich was due. The superintendent had the power to consider the competing
interests, to weigh them, and to reconsider the nonrenewal of Vukadinovich’s contract
if she heard something convincing.
But the underlying discrimination claim and its related issues throw a monkey
wrench in the defendants’ argument for summary judgment on the federal due process
claim. As we saw with respect to the age discrimination claims, it may be that Biggs
really made the non-renewal decision, and that the decisions of the superintendent and
the School board were just formalities – that would be a reasonable inference to draw
from Kaiser’s deposition. She certainly didn’t seem to have applied her own rigorous
analysis to the situation. If the jury finds that Biggs terminated Vukadinovich for
impermissible reasons, and that the hearing with Kaiser was a sham and a mere
formality, then the hearing couldn’t have satisfied due process requirements, even if
Vukadinovich was permitted to tell his side of the story until he was blue in the face. “A
hearing where the decisionmaker has prejudged the outcome does not comport with
22

due process because it effectively denies the employee the opportunity to respond to
the accusations against him.” Powers v. Richards, 549 F.3d 505, 512 (7th Cir. 2008) (citing
Ryan v. Ill. Dep’t of Children & Family Servs., 185 F.3d 751, 762 (7th Cir. 1999) (collecting
cases)).
The defendants’ motion for summary judgment on the federal due process claim
is therefore DENIED. However, this claim only implicates Biggs and Kaiser in their
individual and official capacities, and the School through the official capacity claims. To
the extent that it was alleged against the other defendants, summary judgment is
GRANTED to those defendants.
3.

Other 1983 Claims

In order for a plaintiff to prevail on a section 1983 claim against a municipality
(or an official capacity claim against an individual), a municipality decisionmaker must
have been involved in the unlawful behavior, or the unlawful behavior must have been
done pursuant to an unlawful policy, or practice so pervasive it has the force of policy.
See, e.g., Estate of Sims v. Cnty. of Bureau, 506 F.3d 509, 514-15 (7th Cir. 2007) (“In order to
state a § 1983 claim against a municipality, the complaint must allege that an official
policy or custom not only caused the constitutional violation, but was the moving force
behind it. [] Unless there is an unconstitutional policy, there cannot be official-capacity
liability; only individual-capacity liability is possible. The official policy requirement for
liability under § 1983 is to distinguish acts of the municipality from acts of employees of
the municipality, and thereby make clear that municipal liability is limited to action for
23

which the municipality is actually responsible.” (internal quotation marks and citations
omitted)); Gable v. City of Chicago, 296 F.3d 531, 537 (7th Cir. 2002). Vukadinovich’s
amended complaint alleges 1983 claims for both (1) a failure of training that led to
improper process in his termination, and (2) a supposed general policy of lawlessness
that included the conspiracy to terminate him. (DE 54 at 15-16.) Vukadinovich’s
response to the defendants’ motion for summary judgment again discusses the failure
to train the individual defendants on their constitutional duties. He identifies the
problematic policy or custom a little more specifically, as one “to cause injuries to
employees’ public employment jobs,” although this bleeds into the alleged
unconstitutional acts of the individual defendants, and overlaps with the failure to train
claim. (DE 292 at 22-25.)
These purported section 1983 claims address Vukadinovich’s alleged wrongful
termination and the related alleged violation of his due process rights, so these claims
are redundant to the age discrimination and section 1983-due process claims (and are
much more confusing and less well-formed). These claims also lack evidentiary support
of unconstitutional policies. The defendants’ motion for summary judgment on these
attempts at stand-alone section 1983 claims are therefore GRANTED.
4.

Qualified Immunity

The defendants argue in their motion for summary judgment that they are
entitled to qualified immunity. They apply this argument to the possibility that I might
find that Vukadinovich did have a right to a meeting with the School board. If that were
24

the case, the defendants would have argued that such a right was not clearly
established, and so they should be shielded from liability by qualified immunity. See,
e.g., Stinson v. Gauger, Nos. 13-3343, 13-3346 & 13-3347, 2015 U.S. App. LEXIS 15002, at
*19 (7th Cir., Aug. 25, 2015). We don’t need to get to this argument, however, as I
previously determined that the meeting with the superintendent was, at least in theory,
sufficient to satisfy due process, and Vukadinovich did not have a constitutional right to
a meeting with the board. This argument is therefore MOOT.
OTHER MOTIONS
Several additional motions collateral to the motions for summary judgment are
still pending. Most of these relate to the filing of additional evidence, or allegations of
impropriety by Vukadinovich against the defendants. This case has become so caustic
that the parties seem to be assuming the worst of one another. They ascribe nefarious
motives where there aren’t any, file whatever pops into their heads written out to the
maximum page limits and beyond, and assume that particular conclusions that they
have drawn are as plain as the nose on your face, when they are anything but.
I will handle this barrage on motions in summary fashion. First up is Defendants
motion for leave to file excess pages in support of their motion for summary judgment.
(DE 283.) Their brief came in at 29 pages, 4 more than the 25 pages prescribed by the
Local Rules. There are several issues and voluminous evidence to address, and four
excess pages seem reasonable, so I will allow them the extra pages. Their motion is

25

GRANTED. (DE 283.) Vukadinovich then asked, arguing tit for tat, for an additional 4
pages for his response. His motion is also GRANTED. (DE 291.)
The parties have submitted more than enough information for me to decide these
motions on the papers, so Vukadinovich’s motion for oral argument on his motion for
partial summary judgment is DENIED. (DE 288.)
Vukadinovich’s motion for leave to submit an inadvertently omitted exhibit (his
own affidavit) is GRANTED. (DE 294.)
Vukadinovich compared type-settings and alleges that the defendants’ brief in
support of their motion for summary judgment is printed in too-small font size, per this
District’s Local Rules. I’m not sure this is true, but in any event, the remedy for
formatting errors is to strike the paper, but only after giving the offending party an
opportunity to fix it. That would result in even more filings on summary judgment,
which is the last thing this case needs. So I will exercise my discretion and DENY
Vukadinovich’s motion to strike the defendants’ brief in support of their motion for
summary judgment. (DE 295.)
Vukadinovich’s motion for leave to file a supplementary exhibit (an e-mail he
received on September 1, 2014, from the office of the Speaker of the State House of
Representatives in response to a query from Vukadinovich) (DE 296), to which the
defendants object because it is very late and would require additional analysis and
briefing (DE 297). The email in question contains secondhand information from an
unidentified author of unspecified expertise who starts the one-sentence purported
26

statutory interpretation with the phrase “It sounds to me like . . . .” The author seems to
have glanced at the statute and offered an off-the-cuff explanation; this is not the
statement of a well-versed expert with special knowledge of the subject. It is still this
Court’s role to interpret the law. Discovery lasted a sufficient period to allow the
parties to gather any evidence they deemed necessary. Summary judgment strategy and
briefs are crafted with a particular universe of evidence in mind, and allowing the
addition of brand new evidence – especially evidence of such a dubious nature — after
summary judgment motions have been filed is inefficient. The Motion to Supplement
the Record (DE 296) is therefore DENIED.
Vukadinovich’s motion to strike the defendants’ reply in support of their motion
for summary judgment (DE 285, 298) on the ground that it is 16 pages instead of 15 is
also DENIED. (DE 300.) There are 4 lines of text on the sixteenth page, and it merely
urges the Court to grant the motion for summary judgment – this page may be ignored
without losing any substance, so to the extant Vukadinovich is concerned about the
fairness of giving the defendants four extra lines of text, I will ignore these lines.
Vukadinovich points out that the defendants, in their reply brief in support of
their motion for summary judgment, suggest that certain affidavits that Vukadinovich
filed and cited should be stricken. (DE 298 at 2-4.) One is Vukadinovich’s own affidavit,
which the defendants argue is conclusory and self-serving. One is the affidavit of Jeff
Brooks, a former assistant principal. The defendants argue that Brooks’s affidavit
contains statements that are conclusory, argumentative, and speculative. Vukadinovich
27

opposes this request. (DE 301.) Vukadinovich is correct that, per L.R. 56-1(e), disputes
about the admissibility of evidence should be addressed in a separate motion. I’m not
going to dig through a party’s briefing to figure out what motions they should have
filed, and then address the request as if they did file a motion. The defendants’ request
is not a motion, and therefore requires no disposition.
Vukadinovich filed yet another motion for leave to submit a supplemental
exhibit (DE 302, documents from a September 2014 school board meeting – evidence
created several months after the close of discovery, and after summary judgment
briefing was complete). The defendants oppose the motion. The motion is DENIED. As
I noted in addressing his earlier motion to supplement the record, discovery must stop
somewhere to allow both parties and the Court to address the same universe of
evidence on summary judgment. To the extent additional, newly available information
is relevant, Vukadinovich may seek permission to use it at trial, or may call witnesses to
discuss its content.
Vukadinovich’s third pending motion to file a supplemental exhibit (DE 303) is
DENIED for the same reasons as the other two motions seeking to submit supplemental
exhibits.
Vukadinovich also moved for sanctions for defendants’ alleged conduct of
concealing and withholding information during discovery. (DE 309.) He explains that,
late in the case, he learned that there might be additional documents in a particular file.
He asked defense counsel about them, and defense counsel promptly inquired of her
28

client. The documents were located, and most of them were copies of documents that
had been produced throughout discovery. Vukadinovich faults the defense for not
finding and sending all of these documents initially. Rather than sorting them into
“new” and “already-produced” piles, defense counsel simply sent over the large packet
of documents, along with a note saying that most of the documents in the file had
already been produced. Vukadinovich faults defense counsel for this, too. Defense
counsel also sent the documents directly to the plaintiff, but did not file them on the
docket, as the Local Rules require parties to do when a pro se plaintiff is involved. See
N.D. Ind. L.R. 26-2(a)(2)(A). The defendants oppose the motion for sanctions. (DE 313.)
The defendants’ response describes information requests of various kinds that
number in the hundreds - requests for production, interrogatories, public records
requests, and deposition notices. Despite Vukadinovich’s characterizations, it appears
to me from the record that the defendants have diligently attempted to provide the
requested information, and when the file in question here was missed, they located it
immediately once counsel was notified. It appears debatable whether some of the
documents in the new file at issue were responsive to any of Vukadinovich’s
information requests, and that is an issue that would have to be addressed through
discovery motions, not by jumping straight to sanctions. I don’t see any evidence of
malfeasance, even if there was sloppiness. In any event, I won’t jump straight to
sanctions.

29

The Court may sanction a party for disobeying a discovery order. Fed. R. Civ. P.
37(b)(2)(A)(vi); see also, Chambers v. NASCO, Inc., 501 U.S. 32, 44-45 (1991); Barnhill v.
United States, 11 F.3d 1360, 1367-68 (7th Cir. 1993).; see also, Domanus v. Lewicki, 742 F.3d
290, 301 (7th Cir. 2014). The Court must carefully analyze the situation to apply
sanctions proportionate to the misconduct, and should consider “the frequency and
magnitude of the party’s failure to comply with court deadlines, the effect of these
failures on the court’s time and schedules, the prejudice to other litigants, and the
possible merits of the” party’s position. Rice v. City of Chicago, 333 F.3d 780, 784 (7th Cir.
2003) (citation, quotation marks, brackets omitted).
Any problems in this case appear to me to be the result of error, not willful
misconduct, and sanctions are plainly not appropriate. Vukadinovich now appears to
have all of the information he requested, and he has it before trial. Vukadinovich’s
motion for sanctions is therefore DENIED. (DE 309.)
CONCLUSION
For the foregoing reasons, Plaintiff Vukadinovich’s motion for partial summary
judgment on the due process issue is DENIED. (DE 279.) Defendants’ motion for
summary judgment (DE 285) is DENIED with respect to the ADEA and retaliation
claims against the School but GRANTED with respect to the individual defendants;
GRANTED with respect to the state statute and contract claims; DENIED with respect
to the constitutional Due Process claims (it only applies as against Biggs and Kaiser in
their individual and official capacities, and the School through the official capacity
30

claims); and GRANTED with respect to the attempts at stand-alone section 1983 claims
(sounding in a failure to train and implementing an unconstitutional policy).
The various other pending motions are disposed of as follows, with further
explanation in the body of this Order: the defendants’ motion for leave to file excess
pages in support of their motion is GRANTED. (DE 283.) Vukadinovich’s motion to file
excessive pages is also GRANTED. (DE 291.) Vukadinovich’s motion for oral argument
on his motion for partial summary judgment is DENIED. (DE 288.) Vukadinovich’s
motion for leave to submit an inadvertently omitted exhibit (his own affidavit) is
GRANTED. (DE 294.) Vukadinovich’s motion to strike the defendants’ brief in support
of their motion for summary judgment is DENIED. (DE 295.) Vukadinovich’s motion
for leave to file a supplementary exhibit (an e-mail he received on September 1, 2014) is
DENIED. (DE 296.) The defendants’ request in their reply in support of their motion for
summary judgment that two of Vukadinovich’s affidavits be stricken is not a motion,
and therefore requires no disposition. (DE 298 at 2-4.) Vukadinovich’s motion to strike
the defendants’ reply in support of their motion for summary judgment is DENIED.
(DE 300.) Vukadinovich’s motion for leave to submit (another) supplemental exhibit
(DE 302, documents from a September 2014 school board meeting – evidence created
several months after the close of discovery, and after summary judgment briefing was
complete) is DENIED. (DE 302.) Vukadinovich’s third opposed motion to file a
supplemental exhibit is DENIED for the same reasons as the other two pending

31

motions seeking to submit supplemental exhibits. (DE 303.) Vukadinovich’s motion for
sanctions is DENIED. (DE 309.)
The dates for trial and the final pretrial conference were vacated in a previous
order (DE 323), and no new date was set then. THEREFORE the Court hereby sets a
telephonic status conference for October 15, 2015 at 1:30PM Central/Hammond time.
My case manager will call the pro se plaintiff at the number listed on the docket sheet
and first attorney listed on the docket for the defendant, unless otherwise indicated at
least 24 hours in advance of the call.
SO ORDERED.
ENTERED: September 14, 2015

/s/ Philip P. Simon
PHILIP P. SIMON, CHIEF JUDGE
UNITED STATES DISTRICT COURT

32