Comer v. School City of Hammond Inc et al
OPINION AND ORDER: Court GRANTS 39 Defendant's Motion for Summary Judgment and this case is DISMISSED WITH PREJUDICE. Signed by Judge Rudy Lozano on 9/11/2017. (tc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
KATRINA B. COMER,
SCHOOL CITY OF HAMMOND INC.,
OPINION AND ORDER
This matter is before the Court on the Motion for Summary
Judgment filed by School City of Hammond, Inc., on November 2,
For the reasons set forth below, this motion is GRANTED and
this case is DISMISSED WITH PREJUDICE.
Katrina B. Comer (“Comer”) was employed by the School City of
Hammond, Inc. (“Hammond School”) as a painter from May 2010 until
July 1, 2014.
During her time with Hammond School, Comer filed
several charges with the Equal Employment Opportunity Commission
Relevant here are two charges filed in 2014.
On March 29, 2014, Comer filed Charge No. 470-2014-01277
against the Hammond School.
In this charge, Comer alleged that
she was retaliated against for filing two previous charges with
the EEOC and discriminated against due to her race and sex.
few months later, on July 10, 2014, Comer filed Charge No. 4702014-02282 against the Hammond School.
Under this charge, Comer
alleged Hammond School terminated her position in retaliation for
filing the three previous charges.
The EEOC issued its Dismissal
and Notice of Rights for Charge Nos. 470-2014-02282 and 470-201401277 on September 30, 2014.
Comer retained counsel and the complaint was amended
discrimination and job elimination based on race and sex in
violation of Title VII; 2) retaliation in violation of Title VII;
3) a claim pursuant to 42 U.S.C. section 1983 for a violation of
the Fourteenth Amendment; and 4) a violation of 42 U.S.C. section
The Defendants filed a motion to dismiss the amended
This Court dismissed all claims except the Title VII
claims against Hammond School arising under EEOC Charge Nos. 4702014-01277 and 470-2014-02282.
Following the close of discovery, the instant motion for
summary judgment was filed.
The motion is now fully briefed and
ripe for adjudication.
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).
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, 106 S. Ct.
2505, 91 L. Ed. 2d 202 (1986).
Not every dispute between the
parties makes summary judgment inappropriate; “[o]nly disputes
over facts that might affect the outcome of the suit under the
judgment.” Id. To determine whether a genuine dispute of material
fact exists, the Court must construe all facts in the light most
favorable to the nonmoving party and draw all reasonable inferences
in that party’s favor.
See Ogden v. Atterholt, 606 F.3d 355, 358
(7th Cir. 2010).
A party opposing a properly supported summary judgment motion
may not rely on allegations in her own pleading but rather must
“marshal and present the court with the evidence she contends will
prove her case.”
Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d
speculation or conjecture will not suffice.” Stephens v. Erickson,
569 F.3d 779, 786 (7th Cir. 2009) (citation omitted).
nonmoving party fails to establish the existence of an essential
element on which she bears the burden of proof at trial, summary
judgment is proper.
See Massey v. Johnson, 457 F.3d 711, 716 (7th
In support of the instant summary judgment motion, Hammond
School has set forth a detailed summary of the evidence before
this Court, supported by citations to the evidence.
In response, Comer explicitly indicates that she admits the truth
of the Hammond School’s undisputed facts, although she denies that
those facts entitle Hammond School to summary judgment.
1 at 2). Comer also tendered nine numbered paragraphs designated
as disputed material facts.
These paragraphs consist of short
record. They will therefore be disregarded by this Court.1 Because
the facts in this case are undisputed, the Court has relied heavily
on the facts as presented in the Hammond School’s statement of
1 At the conclusion of the nine numbered paragraphs, Comer designates her
affidavit. The affidavit contains primarily basic recitations of historical
facts regarding her employment (such as her hire date, work assignments, job
description, dates that EEOC charges were filed, and termination date). It is
largely duplicative of the uncontested evidence set forth by Hammond School.
To the extent the affidavit provides facts that are different from or in addition
to those contained in Hammond School’s undisputed facts, they will be
disregarded. These facts were not identified in the section labeled “Statement
of Genuine Disputes,” as required by Northern District of Indiana Local Rule
Hammond School is a political subdivision of the State of
Watkins”). Hammond School is governed by a seven-person elected
Board of School Trustees.
Dr. Diane Schweitzer (“Dr. Schweitzer”)
is Hammond School’s Director of Buildings and Grounds, and has
served in this position since September 2011.
duties involve managing the Maintenance Department, which includes
a number of departments, such as HVAC, plumbing and the painting
department. These departments are also referred to as “crafts.”
Comer is an African-American woman who began working at
Hammond School as a painter in May 2010.
Ed Cassady (“Cassady”)
was Comer’s supervisor until his death in March 2014.
Until Cassady’s death, Comer and Cassady were the
only two employees in Hammond School’s painting department. Comer
and Cassady were good friends.
Both Comer and Cassady were
departments within Hammond School’s maintenance department, or
All of the employees in the Maintenance
Department are based in the Hammond School’s warehouse.
Prior to Dr. Schweitzer assuming these responsibilities,
Comer’s supervisor was Joe Hickman (“Hickman”).
In 2010, while
Hickman was Comer’s supervisor, there was an incident involving
another employee in the maintenance department, Kevin Kolcznski
(“Kolcznski”), who is Caucasian.
Cassady and Comer were sitting
in a room watching something on a computer when Kolcznski walked
past the room. Kolcznski asked them if they were watching “porn.”
Comer was not disciplined in any way as a result of
the incident or her complaint to Hickman.
Kerry Kuc (“Kuc”), another maintenance department employee,
is Caucasian and worked in Buildings and Grounds.
that he gave the “Hitler salute” to herself and Cassady on several
Cassady advised Comer that “he does it all the time”
and the gesture was not limited to Comer. Comer reported this to
Cassady, and Cassady told Hickman.
Comer was not disciplined or
reprimanded in any way because of this incident or the report to
employees of the maintenance department in December 2010.
Christmas party was not held on School property. The Plaintiff
was sitting at a table at the party with several people, including
Kolcznski, Kuc, and Keith Kleinfeldt (“Kleinfeldt”). Someone made
a comment about having three “K’s” sitting there. At that point,
Kolcznski put his hood on over his head and started laughing,
and then said “KKK.”
No one else at the party was inappropriate,
and all others were nice to Comer.
Comer made a report regarding
this incident to Cassady and she believes he then told Hickman.
Comer was not disciplined for making this report.
Comer also took issue regarding a comment made by Kolcznski
to Cassady to the effect that Comer did not do any work while
Cassady was on vacation.
Comer believes this occurred in 2011.
Cassady spoke to Hickman regarding this statement.
Kolcznski’s alleged remark.
believes was placed in Cassady’s 2011 evaluation that suggested
that Cassady should provide Comer with additional training so
The remarks were directed to Cassady, not Comer.
They did not state that Comer was failing to perform any of her
Comer was not reprimanded or disciplined in any way
because of the statements in Cassady’s evaluation.
Comer met with Hickman on January 27, 2011, to discuss some
of her concerns.
At this meeting, Comer complained about the
remark made by Kolcznski that she did no work when Cassady was
Comer does not remember mentioning anything to
Kolcznski’s asking if she and Cassady were watching pornography.
satisfied and had a meeting with the Superintendent of the School
City of Hammond, Dr. Watkins.
Dr. Watkins is African-American.
At the time of her deposition, Comer could not remember why she
was dissatisfied after her meeting with Hickman.
In the meeting
with Dr. Watkins, Comer raised the issue regarding the KKK
Hickman had a meeting with Kerry, Keith and Kevin regarding
the incident at the Christmas party. They each signed a statement
acknowledging that the School had a zero-tolerance for offensive
Comer was still not satisfied and brought some of these
issues to the attention of her union representative, Henry Ciara
(“Ciara”). Ciara is an employee of Local 460, and not the Hammond
Comer discussed with Ciara the Christmas party, the
comment in Cassady’s evaluation and the comment about watching
Ciara arranged a meeting with Dan Friel (“Friel”),
who is the Hammond School’s labor attorney, and Eliza Gonzalez
(“Gonzales”), the Director of Human Resources Department at the
Reprimands and other discipline resulted.
He was also removed from his position as Coordinator of
Maintenance and demoted to the position of pipe fitter with a
commensurate reduction in pay. He was also directed to treat
people in a professional and courteous manner and to refrain from
embarrassing. Mr. Kuc was disciplined for giving the Hitler
unacceptable. He was suspended without pay for 5 days and removed
from his position as Laborer/Foreman and demoted to the position
of Laborer with a commensurate reduction in pay. He likewise was
directed to treat people professionally and courteously. Hickman
was reprimanded for failing to notify human resources of Comer’s
Comer was not reprimanded in any way as a
result of this investigation by Friel and Gonzalez or because of
By February of 2013, Dr. Schweitzer had replaced Hickman.
Dr. Schweitzer was contacted by a teacher at Morton High School
(adjacent to the warehouse) and advised that the teacher saw
Cassady driving a school van in which Comer was the passenger.
Cassady stopped the van at Comer’s car.
Comer got out, took
something from the van, and put it in her car.
The next morning
Dr. Schweitzer spoke with Cassady and Comer, and advised them to
use caution as people may see something that they think is
occurring, but it may not actually be occurring.
did not accuse Comer or Cassady of stealing.
Comer was upset at
this meeting as she believed Dr. Schweitzer had accused her of
stealing. Comer agreed, however, that what Dr. Schweitzer said
was that the perception of the person making the report may have
been that Comer was stealing.
The next day, Dr. Schweitzer
issued a memo to all of the employees cautioning them to be
mindful of the public’s perception. This memo did not mention
Comer by name or accuse her of stealing. Comer was upset because
she believed the memo should have been written first and then
Dr. Schweitzer should have met with herself and Cassady.
was not disciplined, written up or reprimanded in any way as a
result of this incident.
The next incident that caused Comer concern occurred in July
2013. During the summer the maintenance department employees work
four, ten-hour days and usually had Fridays off.
this particular Friday, Comer was asked to do some painting. As
a result, she needed to go to the warehouse to pick up her
equipment. Another employee, Francisco Jiminez2 (“Jiminez”), had
not been advised in advance that Comer was authorized to do work
on this Friday.
Each employee, including Comer, has an ID badge
which allows access to the warehouse. In addition, each employee,
including Comer, is given the security code to deactivate the
In Plaintiff’s Deposition, Jiminez’s last name is spelled incorrectly as
alarm in the warehouse.
When Comer arrived at the warehouse,
she did not have her badge or security code, and she asked Jiminez
if he would use his badge to let her in.
Jiminez was not aware
that Comer had been authorized to do work on that day, and he
did not want her to come into the warehouse using his security
Jiminez called Dr. Schweitzer to get authorization for
Comer’s entry. Dr. Schweitzer advised that she should be allowed
to have access, and Jiminez cooperated.
Dr. Schweitzer then
returned to the warehouse about 3:00 p.m., which was the time
for Comer to return, so that there would be no difficulty between
Comer and Jiminez.
Both Jiminez and Comer told Dr. Schweitzer
their side of the story. Comer said that she was upset that
Jiminez would not allow her into the warehouse.
that Comer was threatening to him.
did call Jiminez “crazy”.
Comer acknowledged that she
She also alleges that Jiminez got out
of his van and came toward her in a menacing manner.
Ultimately Dr. Schweitzer advised Jiminez and Comer that
Neither Comer nor Jiminez were disciplined.
this incident, Comer had no further difficulties or any other
incidents with Jiminiez.
In a memo regarding the incident, Comer
indicated that she had advised Dr. Schweitzer that she did not
feel the incident with Jiminez was racist, but felt like it was
The next situation occurred in December 2013. Dr. Schweitzer
was advised by Terry Butler (“Butler”), the School’s Director of
Transportation, that the School’s insurance company, Hammond
National Insurance Company, had done a random check of driver’s
licenses for those employees driving school vehicles.
result, the insurance company learned that Comer’s license had
been suspended for eleven months, and she had an unpaid fine and
points on her license.
Butler told Comer that the School’s
insurance company had advised him that Comer could not drive a
school vehicle for five years as a result of these problems.
This was not Butler’s decision.
The insurance company placed a
“watch” on several other employees in addition to Comer.
defensive driving course to eliminate the points on her driver’s
license and get her license reinstated.
and paid the fine.
Comer took the course
Her driver’s license was then reinstated.
Nonetheless, Butler told Comer that the insurance company advised
that Comer could not drive a school vehicle for a period of three
Eventually the insurance company was persuaded to lift
the ban on Comer’s driving a school vehicle.
As a result of this
incident, Comer’s job was not terminated or suspended, and she
was not disciplined in any way.
Furthermore, from December 2013 to March 2014 (i.e, the
period of time in which the insurance company advised that Comer
could not drive a school vehicle until the time of Cassady’s
death), Cassady was allowed to drive Comer to all of her work
assignments so Comer would not lose any work.
During the time
between Cassady’s death and the ban being lifted by the insurance
company, Dr. Schweitzer assigned Comer to Morton High School.
Morton High School is a short walk from the warehouse, so Comer
again did not lose any work.
Comer alleged that there were other employees with suspended
licenses who were allowed to drive. Dr. Schweitzer testified that
this was not the case, and any time it was brought to the School’s
attention that an employee had a suspended driver’s license, the
situation had to be corrected before they could be allowed to
drive a school vehicle.
This happened with Cassady, and he was
not allowed to drive until it was cleared up.
In fact, Comer
drove Cassady until this was resolved.3
Next Comer took issue with a comment made in February 2014.
She was assigned to a painting project at Morton High School.
The head custodian at Morton High School was a person by the name
of Tom Smitka (“Smitka”). The assignment involved painting over
graffiti in one of the men’s restrooms. Comer decided to wait
until school was over for the day to do the painting and to
On February 13, 2012, Cassady’s driver’s license was checked for violations and found that it was suspended as of
February 9, 2012. The next day Cassady purchased insurance to reinstate his license. The status of the license was
checked again on February 23, 2012, and found to be valid. Additionally, the insurance company did not ban
Cassady from driving.
enlist the help of a Morton High School custodian by the name of
Comer arrived at Morton High School around 2:00 p.m. and
the day ended at 2:30 p.m. She walked around for a while and then
took a break at about 2:15 p.m.
She and Barb were in the
teacher’s lounge. According to Comer, Smitka walked past several
times and finally looked in and indicated that, if she did not
have work to do, he had some work for her. Smitka was not Comer’s
supervisor and she did not want him telling her what to do. Comer
was not disciplined or reprimanded in any way as a result of
A grievance meeting occurred on April 3, 2014.
to Comer, this grievance meeting was designed to address all of
the incidents that had previously been discussed. Comer’s union
representative, Mr. Loftis, was present.
Dr. Schweitzer had been considering outsourcing the painting
Funding for Capital Projects was declining.4
prepared a memo outlining her budgetary concerns and the rationale
for outsourcing the painting department.
Through the years, the
number of employees in the various craft departments of Hammond
Schools in Indiana are required to maintain several different funds. The
largest is the General Fund, out of which many of the employee’s salaries and
benefits are paid. The Capital Projects Fund is used primarily for making
repairs on buildings, but can also be used to defray certain employee’s costs,
such as the painting department.
concluded that it made sense to eliminate the department and
utilize an independent contractor.
Not only would this save
money, but in this way, a painter could come in and work in the
afternoon or the evening after the schools were closed.
department be eliminated to Mr. Theo Boone (“Boone”), Hammond
School’s Chief Financial Officer.
department be eliminated.
Boone then recommended to the
The Board voted to eliminate the
Dr. Schweitzer believes that approximately
department in July 2014.
Dr. Schweitzer discussed the elimination of the painting
department in the grievance meeting with Comer and Mr. Loftis on
April 3, 2014.
Mr. Loftis indicated that there was no problem
independent contractors were union painters.
He reiterated this
position in July 2014 in a meeting with Dr. Schweitzer.
Mr. Loftis nor Comer filed a grievance regarding the elimination
Agreement between Hammond School and the painters.
The painting department was eliminated for budgetary reasons
and not because of Comer’s job performance.
denies that the painting department was eliminated as a result
of the charges of discrimination or other complaints made by
On or about March 22, 2011, Comer filed her first EEOC
based upon her sex and race.
incidents discussed above.
Her claims were based on several
The EEOC issued its determination
and right to sue letter in Charge No. 24B-2011-00040 on June 30,
The next EEOC Charge that Comer filed was number 24B-201300016 on February 5, 2013. Comer alleged retaliation by Dr.
Schweitzer. Specifically, Comer alleged Dr. Schweitzer “harassed
me on a continuous basis, with the most recent on January 11,
2013 in which she alleges that I was stealing.”
This is the
incident detailed above in which Dr. Schweitzer spoke with Comer
and Cassady regarding the perceptions of someone who reported to
Dr. Schweitzer, and Comer “perceived” this as Dr. Schweitzer’s
accusing her of stealing. On February 26, 2013, the EEOC issued
its notice of right to sue letter. Comer did not file any lawsuit
regarding Charge Numbers 24B-2013-00016 or 24B-2011-00040 within
ninety (90) days of the issuance of the right to sue letters by
The next EEOC Charge filed by Comer was number 470-201401277
Specifically, Comer alluded to her two previous charges (although
the charge numbers referenced by Comer are not accurate).
then discussed the issue in July 2013 involving Jiminez and her
desire to enter the warehouse, which is detailed above.
addressed the issue about points on her driver’s license and not
being allowed to drive the school vehicles.
in her charge that she was still not allowed to drive school
vehicles and had been informed that this is due to insurance
coverage. Comer also alleged that she thought other white males
had been allowed to drive school vehicles on suspended licenses.
Comer went on in this charge to complain about the comment made
by the custodian, Smitka, at Morton High School, suggesting that
if she did not have anything to do, he could give her some work.
The last EEOC charge that Comer filed was number 470-201402282 on July 10, 2014. This charge was based only on retaliation
and referenced the fact that the painting department was closed
and Comer’s job terminated. The EEOC’s notice of right to sue
was issued for charge numbers 470-2014-01277 and 470-2014-02282
on September 30, 2014.
Comer’s Claims of Sex and Race Discrimination
discrimination claims fail, Comer appears to be making such a
Her response brief indicates that there
are “genuine issues of material fact that precludes the granting
of Defendants [sic] Motion for Summary Judgment on the issue of
retaliation.” (DE # 43-1 at 2)(emphasis added). Comer’s argument
then focus’ exclusively on why the retaliation claim should not
The only sex and race discrimination claims that remain
pending stem from EEOC charge number 470-2014-01277. Title VII
prohibits employers from firing or otherwise discriminating “against
any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s race, color,
religion, sex, or national origin.
See 42 U.S.C. §§ 2000e–2(a)(1).
prevail, Comer must demonstrate a causal link between her gender or
race and the alleged adverse employment actions.
The legal standard to be applied “is simply whether the
evidence would permit a reasonable factfinder to conclude that
the plaintiff’s race, ethnicity, sex, religion, other proscribed
factor caused the discharge or other adverse employment action.”
Evidence must be considered as a whole.”
Ortiz v. Werner Enters.,
Inc., 834 F.3d 760, 765 (7th Cir. 2016).
“Evidence must be
considered as a whole, rather than asking whether any particular
piece of evidence proves the case by itself – or whether just the
‘direct’ evidence does so, or the ‘indirect’ evidence.”
There are no facts before this Court that would allow a
reasonable jury to find in Comer’s favor on any claim of race of
sex discrimination raised in EEOC charge number 470-2014-01277.
As an initial matter, none of the incidents raised by Jiminez
resulted in any adverse job action.
for the situation with Jiminez.
Comer received no discipline
Even when she was unable to drive
a school vehicle she suffered no adverse job action.
the school made sure she remained able to work, either by getting
rides with Cassady or by being assigned to the school right next
to the warehouse.
Likewise, the comment by Smitka regarding
Comer’s work ethic resulted in no adverse job action.
Furthermore, Comer has produced no evidence whatsoever that
any of these situations were in any way connected to her race or
Because Hammond School sets forth a detailed and well-
supported argument in favor of dismissal and Comer has produced
no evidence or argument in response, summary judgment will be
granted as to Comer’s remaining sex and race discrimination
Comer’s Claims of Retaliation
For Comer’s retaliation claims to survive summary judgment,
she must offer evidence that she engaged in statutorily protected
activity, suffered a materially adverse employment action, and
that a causal connection exists between the protected activity
and the adverse employment action.
863 F.3d 656, 661.
See Baines v. Walgreen Co.,
To show a causal connection, Comer must
produce some evidence that the defendant “would not have taken
the adverse … action but for Comer’s protected activity.”
Comer, relying upon Coleman v. Donahoe, argues that a lower
standard of proof is applicable.
Coleman v. Donahoe, 667 F.3d
853 (7th Cir. 2012)(“Coleman can show causation by showing that
her complaints and EEO filings were a ‘substantial or motivating
factor’ in the Postal Service’s decision to place her in off-duty
status and/or to fire her.”).
Following the decision in Coleman,
the United States Supreme Court decided University of Texas S.W.
clarifies that, to succeed on a retaliation claim, a plaintiff
must show “but for” cause.
Id. (“The text, structure, and history
of Title VII demonstrate that a plaintiff making a retaliation
claim under 2000e-3(a) must establish that his or her protected
activity was a but-for cause of the alleged adverse action by the
employer.”); see also Jones v. Lake County Sheriff’s Department,
No. 2:11-CV-356-TLS, 2014 WL 3928405 (N.D. Ind. Aug. 11, 2014).
Comer’s claims of retaliation stemming from EEOC charge 7402014-01277 fail for the same reasons her discrimination claims
raised in this charge fail: she sets forth no adverse job actions.
To the extent it is possible to view the prohibition against
driving school vehicles as an adverse job action5, the evidence
before this Court is that Hammond School did not make that
decision – the insurance company told Hammond School that Comer
could not drive school vehicles.
Furthermore, Comer fails to
provide evidence from which a reasonable jury could find any link
between the situations she describes in EEOC charge 740-201401277 and her filing of previous EEOC charges.
Charge 470-2014-02282 also raises a claim of retaliation.
retaliation for filing previous EEOC charges.
In response to the
instant motion, Comer admitted the truth of Defendant’s undisputed
Accordingly, Comer conceded that the painting department
was eliminated for budgetary reasons and not because Comer filed
EEOC charges or made other complaints.
Schweitzer Deposition at 42-43).
(DE #40-1 at 13, citing
Given this concession, Comer’s
claim that her termination was the result of retaliation must
Ignoring her concession that her position was eliminated
solely for budgetary reasons, Comer argues that this reason is
pretextual because, unlike others that are no longer employed in
the trades, she was not allowed to work until the job could be
Comer lost no pay as a result of her inability to drive and she was not
demoted. Furthermore, she has offered no argument to the Court explaining
why she believes this should be treated as an adverse job action.
eliminated through normal attrition.
In support of her argument
that she was treated differently than other similarly situated
employees, she relies upon a chart outlining staffing changes in
the various trades over a ten year period.
She notes the
In this 10 year period she was the only
position eliminated (laid off). Secondly as
a general rule [a]ll the employees who were
not replaced either resign, retired, or died
(there were only 2 who were terminated).
Their positions were eliminated through normal
The Plaintiff was not given the
opportunity to retire or resign or the benefit
to retain her job until such time as she wanted
to resign or retire.
The normal attrition
policy never applied to the Defendant [sic].
Considering the fact that she was the only
female in the Department, the only African
importantly, she was the only one to file
charges of discrimination.
This is not enough.
Even without her concession that the
decision was made for budgetary reasons and not based on her
Comer has produced no evidence from which a jury could
find that the filing of Comer’s EEOC charges was linked to the
decision to eliminate her position, much less a but-for cause.
For the reasons set forth above, Defendant’s summary judgment
motion, filed on November 2, 2016, is GRANTED and this case is
DISMISSED WITH PREJUDICE.
DATED: September 11, 2017
/s/RUDY LOZANO, Judge
United States District Court
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