Robert v. South Bend Indiana City of et al

Filing 29

OPINION AND ORDER ADOPTING 24 REPORT AND RECOMMENDATIONS in its entirety. Court OVERRULES Mr. Roberts 27 objections to the Report and Recommendation. Accordingly, 17 Motion for Partial Dismissal of Plaintiffs Amended Complaint and for More Definite Statement as to All Remaining Claims is GRANTED IN PART and DENIED IN PART. Count I is DISMISSED WITH PREJUDICE. Mr. Roberts claims of a hostile work environment are DIMISSED WITHOUT PREJUDICE. All claims against Pete Buttigieg, Ch arles Hurley, Jeffrey Walters, Lee Ross, Andrea Beachkofsky, Robert Yeary, Catherine Toppel, and Janine Hall are DISMISSED WITHOUT PREJUDICE. Mr. Robert is granted leave to file a Second Amended Complaint within 30 days of the date of the opinion. Signed by Judge Jon E DeGuilio on 2/5/15. (mc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
THEODORE ROBERT,
Plaintiff,
v.
CITY OF SOUTH BEND, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

Case No. 2:13-CV-274 JD

OPINION AND ORDER
Plaintiff Theodore Robert, an African-American police officer employed by the City of
South Bend, sued the City, the mayor, and several other City employees, claiming he had been
discriminated against on the basis of his race. He makes a series of such claims in his currently
operative Amended Complaint [DE 10], several of which are discussed below as relevant.
Defendants filed a Motion for Partial Dismissal of Plaintiff’s Amended Complaint and
for More Definite Statement as to All Remaining Claims. [DE 17.] Defendants asked for Count I
to be dismissed as time-barred; certain individual defendants to be dismissed from plaintiff’s
Title VII, Equal Protection, and First Amendment retaliation claims because they were not
proper defendants; and for the racial harassment claims to be dismissed because they failed to
state a viable claim for relief. Defendants also sought a more definite statement on the remaining
claims under Rule 12(e), arguing that the remaining allegations were overly vague and
ambiguous. Mr. Robert responded in opposition and the defendants replied in support. [DE 19,
20.]
The Court referred the motion to the Magistrate Judge for a Report and Recommendation,
and on September 5, 2014, Magistrate Judge Martin filed a Report and Recommendation in

which he recommends that the Court: (1) dismiss the individual defendants; (2) dismiss Count I
as time barred; (3) dismiss all claims based on a hostile work environment; and (4) deny the
request for a more definite statement on the remaining claims. [DE 24.]
Mr. Robert filed a partial objection to the report and recommendation. [DE 27.] He
objects only to the recommendations that Count I and the hostile work environment claims be
dismissed. [Id.] The defendants have responded in opposition. [DE 28.] Mr. Robert did not file a
reply and the time to do so has passed.
For the following reasons, the Court ADOPTS the Report and Recommendation, after
either a de novo or clear error review depending on the claim at issue. The Motion for Partial
Dismissal of Plaintiff’s Amended Complaint and for More Definite Statement as to All
Remaining Claims [DE 17] is therefore GRANTED IN PART and DENIED IN PART, as
more fully detailed below.
I. Standard of Review
After referring a dispositive motion to a magistrate judge, a district court has discretion to
accept, reject, or modify, in whole or in part, the findings or recommendations of the magistrate
judge. 28 U.S.C. § 636(b)(1). Consistent with Federal Rule of Civil Procedure 72(b), the district
court must undertake a de novo review “only of those portions of the magistrate judge’s
disposition to which specific written objection is made.” See Johnson v. Zema Sys. Corp., 170
F.3d 734, 739 (7th Cir. 1999) (citing Goffman v. Gross, 59 F.3d 668, 671 (7th Cir. 1995)). If no
objection or only a partial objection is made, the court reviews those unobjected portions for
clear error. Id. Under the clear error standard, a court will only overturn a magistrate judge’s
ruling if the court is left with “the definite and firm conviction that a mistake has been made.”
Weeks v. Samsung Heavy Indus. Co., Ltd., 126 F.3d 926, 943 (7th Cir.1997).
2

Rule 12(b)(6) authorizes dismissal of a complaint when it fails to set forth a claim upon
which relief can be granted. Generally speaking, when considering a Rule 12(b)(6) motion to
dismiss, courts must inquire whether the complaint satisfies the “notice-pleading” standard.
Indep. Trust Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 934 (7th Cir. 2012). The noticepleading standard requires that a complaint provide a “short and plain statement of the claim
showing that the pleader is entitled to relief,” which is sufficient to provide “fair notice” of the
claim and its basis. Id. (citing Fed. R. Civ. P. 8(a)(2)); Maddox v. Love, 655 F.3d 709, 718 (7th
Cir. 2011) (citations omitted); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Fed. R. Civ. P. 8(a)(2)). In determining the sufficiency of a claim, the court construes
the complaint in the light most favorable to the nonmoving party, accepts all well-pleaded facts
as true, and draws all inferences in the nonmoving party’s favor. Reynolds v. CB Sports Bar, Inc.,
623 F.3d 1143, 1146 (7th Cir. 2010) (citation omitted).
The Supreme Court has adopted a two-pronged approach when considering a Rule
12(b)(6) motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009) (citing Twombly).
First, pleadings consisting of no more than mere conclusions are not entitled to the assumption of
truth. Id. This includes legal conclusions couched as factual allegations, as well as “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements.” See
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). Second, if there are well-pleaded
factual allegations, courts should “assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Id. at 679.
“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
McCauley v. City of Chi., 671 F.3d 611, 615 (7th Cir. 2011) (citing Iqbal and Twombly). The
3

complaint “must actually suggest that the plaintiff has a right to relief, by providing allegations
that raise a right to relief above the speculative level.” Maddox, 655 F.3d at 718 (citations
omitted). However, a plaintiff’s claim need only be plausible, not probable. Indep. Trust Corp.,
665 F.3d at 935 (quoting Twombly, 550 U.S. at 556). “[A] well-pleaded complaint may proceed
even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery
is very remote and unlikely.” Id. In order to satisfy the plausibility standard, a plaintiff’s
complaint must “supply enough fact to raise a reasonable expectation that discovery will yield
evidence supporting the plaintiff’s allegations.” Id. Determining whether a complaint states a
plausible claim for relief is “a context-specific task that requires the reviewing court to draw on
its judicial experience and common sense,” see Iqbal, 556 U.S. at 679 (citation omitted), and the
Court will assess Mr. Robert’s claims accordingly.
II. Discussion
The Court now turns to the Magistrate Judge’s Report and Recommendation, beginning
with those portions to which Mr. Robert has objected.
A.

Mr. Robert’s Claims for Refusal to Hire in Count I are Time Barred

In Count I, Mr. Robert claims that he twice applied for but did not receive a position as a
School Resource Officer. The first alleged refusal to hire occurred in January 2010 and the
second in March 2011.1 Magistrate Judge Martin recommends dismissing the claims as timebarred since both instances occurred more than two years before Mr. Robert filed his complaint.
In reaching that recommendation, the Magistrate Judge rejected Mr. Robert’s argument that the

1

There is an additional alleged failure to hire Mr. Robert as a School Resource Officer which occurred in November
2011. That allegation is not at issue in the motion to dismiss; it is identified in Count III and the defendants concede
it was brought within the applicable statute of limitations.

4

failures to hire constitute a “continuing violation,” that continued into the period within two
years of the complaint.
After engaging in a de novo review, the Court agrees with the recommendation to dismiss
Count I. Mr. Robert brings the claims at issue under 42 U.S.C. § 1983. The statute of limitations
governing the claim is two years. Campbell v. Chappelow, 95 F.3d 576, 580 (7th Cir. 1996) (“a §
1983 action against an Indiana public official is controlled by Indiana’s two-year statute of
limitations for personal injury actions.”). Mr. Robert filed his complaint in August 2013 and
there is no factual question that this was more than two years after each of the failures to hire
identified in Count I.
In his objection to the Report and Recommendation, Mr. Robert seems to renew his
argument that the continuing violation doctrine excuses the fact that the two failures to hire
identified in Count I occurred before August 2011. [DE 27 at 1–2.] However, as noted by Mr.
Robert in his brief objection, that doctrine “precludes recovery for discrete acts of discrimination
or retaliation that occur outside the statutory time period,” but may permit “consideration of the
entire scope of a hostile work environment claim, including behavior alleged outside the
statutory time period . . . for the purpose of assessing liability, so long as an act contributing to
the hostile work environment takes place within the statutory time period.” Nat’l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 105 (2002). Additionally, “[d]iscrete acts such as termination,
failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of
discrimination and each retaliatory adverse employment decision constitutes a separate,
actionable ‘unlawful employment practice.’” Id. at 113.
The continuing violation doctrine does not save the claims asserted in Count I. It is clear
from the allegations in the Amended Complaint that both failures to hire were discrete acts that
5

occurred at an easily identifiable time, more than two years before the suit was brought. Mr.
Robert’s argument is somewhat unclear and it may be that he is arguing that the first two denials
can be offered as evidence in support of a separate claim. See Jackson v. City of Chi., 552 F.3d
619, 624 (7th Cir. 2009) (“in certain situations, untimely actions can be used as ‘background
evidence’ to support a claim”). To the extent he raises such an argument, that question is not
before the Court on the motion to dismiss; rather, the decision here is limited to whether those
allegations support a free-standing claim for recovery. Because they are barred by the statute of
limitations, they do not. See Hildebrandt v. Ill. Dept. of Natural Resources, 347 F.3d 1014, 1028
(7th Cir. 2003) (holding plaintiff may only recover for discrete discriminatory acts within the
statute of limitations period).
The Court finds after a de novo review that the claims are barred by the statute of
limitations and independently concurs with the recommendation to dismiss those claims.
Because the statute of limitations question is fully dispositive of the claims in Count I and is not
capable of being cured with amended factual allegations, the Court will dismiss the claims with
prejudice.
B.

Mr. Robert Has Not Pled a Viable Claim for a Hostile Work Environment

Next, the Court considers Magistrate Judge Martin’s recommendation to dismiss Mr.
Robert’s claims of a hostile work environment. In making that recommendation, the Magistrate
Judge concluded that the discrete acts of alleged discrimination—while potentially independent
actionable claims—were insufficiently severe and pervasive to support a claim for a hostile work
environment. [DE 24 at 8–9 (“Even viewing all facts in the Amended Complaint as true, Plaintiff
has not presented any indication of an environment with such severe and pervasive
discriminatory conduct that it could objectively be considered racially offensive”; “Although at
6

least some of the events described in the Complaint might form instances of employment
discrimination, they are not sufficient to allege a hostile work environment”).]
Mr. Robert objects to this recommendation. He argues that he has alleged numerous
instances of intentional discrimination and also that he can bring his argument as a “class of one”
under the equal protection clause. [DE 27 at 2–3.]
With respect to the sufficiency of his allegations of a hostile work environment, the Court
finds that Mr. Robert’s allegations of intentional discrimination are insufficient to state a claim
for a hostile work environment, either under Title VII or the Equal Protection Clause. There is a
distinction between claims for discrete claims of racial discrimination and claims for racial
harassment. Morgan, 536 U.S. at 115 (“Hostile environment claims are different in kind from
discrete acts. Their very nature involves repeated conduct.”). In order to prove the latter claim,
Mr. Robert must prove the following elements: “(1) the work environment must have been both
subjectively and objectively offensive; (2) his race must have been the cause of the harassment;
(3) the conduct must have been severe or pervasive; and (4) there must have been a basis for
employer liability.” Montgomery v. Am. Airlines, Inc., 626 F.3d 382, 390 (7th Cir. 2010).
Here, Mr. Robert has alleged four types of discrete acts: the failure to be hired as a school
resource officer, the opening of an internal affairs investigation, being temporarily reassigned to
desk duty, and being asked to undergo a psychological examination and polygraph examination.
Notably, he does not allege any racially offensive language or humiliation based on race. The
Court, after a de novo review, agrees with the Magistrate Judge that Mr. Robert’s current
allegations are insufficient to state a claim for a hostile work environment. See Robinson v. Lake
Minnehaha Owner’s Ass’n, No. 2:12-CV-108-TLS, 2012 WL 6197150, at *4 (N.D. Ind. Dec. 12,
2012) (“The assertions in the Complaint do not suggest that the Plaintiff’s work environment
7

included discriminatory intimidation, ridicule, or insult that was so severe and pervasive that it
altered the conditions of his employment. Rather, they suggest that he was discriminated against
on the basis of his race when the Defendant applied disparate terms and conditions of
employment with respect to the assignment of work hours.”). Quite simply, even accepting Mr.
Robert’s claims as true, he has not alleged that his workplace was the sort that a reasonable
person would find objectively offensive. Yancick v. Hanna Steel Corp., 653 F.3d 532, 546 (7th
Cir. 2011) (“We do not focus on discrete acts of individual employees when evaluating a hostile
work environment claim, but must consider the entire context of the workplace.”); Patton v.
Indianapolis Pub. Sch. Bd., 276 F.3d 334, 339 (7th Cir. 2002) (allegations that plaintiff was
treated rudely and subjected to “stern and severe criticism” fell “far short of creating an
actionable hostile work environment.”).
With respect to the “class of one” argument, the defendants correctly note that the
doctrine is not applicable in cases of public employment. Engquist v. Or. Dep’t of Agr., 553 U.S.
591, 601 (2008) (“But recognition of a class-of-one theory of equal protection in the public
employment context—that is, a claim that the State treated an employee differently from others
for a bad reason, or no reason at all—is simply contrary to the concept of at-will employment.
The Constitution does not require repudiating that familiar doctrine.”).
The Court finds after a de novo review that the allegations in Mr. Robert’s Amended
Complaint are insufficient to state a plausible claim of a hostile work environment and
independently concurs with the recommendation to dismiss those claims. Because the dismissal
is based on the inadequacy of the factual allegations contained in the Amended Complaint, the
Court will dismiss the claim without prejudice.

8

C.

The Court Finds No Clear Error in Those Portions of the Report and
Recommendation to Which Neither Party Objected

The Court has reviewed those portions of the Report and Recommendation to which
neither party has objected and finds no clear error. Specifically, in light of Mr. Robert’s
admission that the individual defendants were “inadvertently included” in the Amended
Complaint, the Court finds no clear error in the recommendation to dismiss all claims against
each of the individual defendants. The Magistrate Judge did not recommend whether that
dismissal should be with or without prejudice, but because it appears that some of the claims
against the individual defendants could be potentially cured through amendments to the
pleadings, the Court will dismiss the claims without prejudice.
With respect to the request for a more definite statement, the Court also finds no clear
error. The Court agrees with the Magistrate Judge that, at times, Mr. Robert’s “legal claims are
not clearly articulated.” [DE 24 at 9.] However, the removal of the individual defendants does
resolve many of the City’s complaints about the ambiguities of the Amended Complaint. That
portion of the Report and Recommendation is therefore adopted.
III. Conclusion
For the reasons stated above, the Court OVERRULES Mr. Robert’s objections to the
Report and Recommendation [DE 27] and ADOPTS the Report and Recommendation [DE 24]
in its entirety. Accordingly, the Motion for Partial Dismissal of Plaintiff’s Amended Complaint
and for More Definite Statement as to All Remaining Claims [DE 17] is GRANTED IN PART
and DENIED IN PART. Count I is DISMISSED WITH PREJUDICE. Mr. Robert’s claims of
a hostile work environment are DIMISSED WITHOUT PREJUDICE. All claims against Pete

9

Buttigieg, Charles Hurley, Jeffrey Walters, Lee Ross, Andrea Beachkofsky, Robert Yeary,
Catherine Toppel, and Janine Hall are DISMISSED WITHOUT PREJUDICE.
Mr. Robert is granted leave to file a Second Amended Complaint, consistent with this
opinion and the Report and Recommendation, within 30 days of the date of the opinion.
SO ORDERED.
ENTERED: February 5, 2015

/s/ JON E. DEGUILIO
Judge
United States District Court

10