Theodore Robert v. City of South Bend Indiana et al

Filing 72

OPINION AND ORDER: GRANTING 52 MOTION for Summary Judgment by Defendants. All claims are DISMISSED WITH PREJUDICE. The Clerk shall enter judgment in favor of the defendants and against Theodore Robert accordingly. The defendants' motion to strike [DE 65] is DENIED AS MOOT. Signed by Judge Philip P Simon on 1/2/2018. (lhc)

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

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No. 2:15CV173-PPS

OPINION AND ORDER
Theodore Robert was a police officer with the City of South Bend Police Department
from November 2006 until he voluntary resigned on October 19, 2015, after being indicted
on a federal criminal charge to which he ultimately pled guilty. Prior to his resignation,
Robert voiced concerns about racial discrimination in the police department, and he filed
several complaints with the EEOC. He also filed a federal lawsuit. He alleges that the
police department retaliated against him because he filed those complaints and lawsuit.
But because there was no material adverse employment action taken against him, his
retaliation claims fails, and summary judgment will therefore be granted in favor of the
defendants.
Background
Robert’s tenure as a police officer with the South Bend Police Department started
in November 2006. As early as 2010, Robert began complaining that he was being treated
unfairly by the SBPD and that he had been the victim of discrimination. [DE 53-2 at 36.]
Since 2012, Robert has filed a number of EEOC complaints, and he has written several

letters. [DE 53-2 at 8-10.] On December 13, 2013, Robert filed a federal lawsuit alleging
race discrimination when he was denied a promotion. [Case No. 2:13-cv-274 (filed Aug. 8,
2013).] That case remains pending before Judge Van Bokkelen. It’s a mystery to me why
Robert did not bring these claims in the prior lawsuit. The defendants moved to
consolidate the two cases, but the Magistrate Judge denied that motion, finding that this
lawsuit would be likely to delay the first one. [DE 46 in Case No. 2:13-cv-274.] As it turned
out, this case has proceeded more expeditiously.
Following the filing of that lawsuit, Robert continued to complain of discrimination
and unfair treatment of black police officers, and he submitted a letter to the Board of
Public Safety, the City’s Human Resources Department and the office of the Mayor of
South Bend. On June 10, 2014, he and other black officers in the SBPD presented four
separate complaints requesting an investigation into their allegations of racial
discrimination by the Mayor of South Bend and the police chief, Ronald Teachman. [DE 532 at 8-10.] According to Robert, a week later, on June 17, 2014, Robert and other officers
made similar complaints to the Board of Public Safety during its monthly meeting. [DE 1
at 5.]
On July 4, 2014, before reporting for the afternoon shift at the SBPD, Robert drove
his SBPD-issued police car to the gym. On his way, he noticed trash in the street in front
of a home on his block. According to Robert, he had called the City’s Code Enforcement
Department to file an ordinance violation complaint against his neighbor due to the large
accumulation of trash on the neighbor’s yard which had been there for over a week. Robert

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claims that he stopped his police car, pulled over to the curb, picked up the trash that had
been in the street, and placed it in the yard. [DE 53-2 at 15-19.]
Later that day, Sergeant James Wolff, a police officer with the SBPD, informed
Robert that the neighbor had filed a complaint about an officer throwing trash in his yard.
[DE 53-2 at 21.] According to Sergeant Wolff, the homeowner asked that a report be filed.
[DE 53-4 at 2 ¶6.] Because Robert lived on the same street as the neighbor, matched the
description of the suspect provided by the neighbor, and drove a SBPD-issued squad car
with a number consistent with one of the digits provided by the neighbor, Sergeant Wolff
spoke with Robert about the incident. [DE 53-2 at 2 ¶7.] Eventually, Robert admitted to
Sergeant Wolff that he took the trash from the street and placed it in the neighbor’s yard.
[DE 53-2 at 22.] Despite the possibility that the conduct in question could be investigated
as vandalism, ultimately, no criminal charges were ever filed against Robert.
Because the conduct involved in the trash incident also potentially constituted police
misconduct, an Internal Affairs file was opened. Captain Keith Schweizer was responsible
for conducting the investigation into Robert’s actions. Although Robert was off duty when
then the trash incident occurred, Robert admits that because he was in his police vehicle
at the time, he was subject to the rules and regulations set out in the police manual. [DE
53-2 at 7.] Captain Schweizer commenced his investigation into the trash incident and
Robert responded by filing a complaint of his own — this one against Sergeant Wolff, the
on scene officer who investigated the trash throwing incident. Captain Schweizer was
assigned to investigate both the original complaint against Robert and the complaint

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Robert lodged against Sergeant Wolff for how he handled the underlying incident. [DE 532 at 30; DE 53-5 at 4 ¶14.] Captain Schweizer issued his opinion sustaining the allegations
against Robert and exonerating Sergeant Wolff of any wrongdoing in the way he
conducted the investigation. [DE 53-5 at 5 ¶¶16-18.]
Robert was not actually disciplined following the trash investigations. [DE 53-2 at
41.] However, on March 13, 2015, about 8 months after the trash investigations, Police
Chief Teachman referred Robert to the Board of Public Safety with a recommendation for
discharge. According to Police Chief Teachman, this recommendation was based on
Captain Schweizer’s Internal Affairs investigation and Robert’s numerous other episodes
of misconduct. [DE 53-6 at 4 ¶13.] But Robert was not terminated.
It does not appear that the Board of Public Safety ever took up the recommendation
for discharge made by the police chief. It’s not clear to me why. Instead, Robert resigned
in October 2015. In May of that year, Robert had been indicted on a federal criminal charge
to which he ultimately pled guilty. [Case No. 3:15-cr-42 (filed May 14, 2015).] The charge
stemmed from a 2010 incident in which Robert seriously injured a person in his custody.
In that federal criminal case, Robert admitted that he repeatedly pushed the victim against
a wall with his arm across the victim’s throat, and after the victim attempted to respond,
Robert struck the victim across the face, causing a laceration that required multiple sutures.
[DE 53-8 at 6.] Robert eventually resigned from the SBPD on October 19, 2015 and later
pled guilty to the charge, rendering him a convicted felon and unemployable as a police
officer.

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Analysis
Summary judgment is proper if “there is no genuine dispute as to any material fact
and the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). A
genuine dispute about a material fact exists only “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). In making this determination, the Court construes “all facts and
reasonable inferences from the record in the light most favorable to [ ] the non-moving
party.” Moser v. Ind. Dep’t of Corr., 406 F.3d 895, 900 (7th Cir. 2005).
1. Title VII Retaliation
Robert’s first claim is a narrow one: he says that he was retaliated against, in
violation of Title VII, when the SBPD conducted two investigations into the trash incident
on July 4, 2014 — Sergeant Wolff’s investigation of the citizen complaint and Captain
Schweizer’s Internal Affairs investigation. Claims of retaliation under Title VII are subject
to the McDonnell Douglas burden-shifting analysis. Robert must first establish a prima facie
case of retaliation, at which point the burden of production shifts to the City to come
forward with a legitimate, non-retaliatory reason for its actions. If the City rebuts the
prima facie case, then Robert has a chance to show that the City’s proffered reasons are
merely pretextual. McKenzie v. Ill. Dep’t of Transp., 92 F.3d 473, 483 (7th Cir. 1996). To make
out a prima facie case, Robert must show that: (1) he engaged in a statutorily protected
activity; (2) he suffered a materially adverse employment action; and (3) a causal
connection exists between the statutorily protected activity and the action taken. Id.

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The law in this Circuit has undergone a shift in recent years. In Ortiz v. Werner
Enterprises, Inc., the Seventh Circuit abandoned the dichotomy of direct and indirect
evidence previously used at summary judgment in employment discrimination cases and
held that, the “sole question that matters” is “[w]hether a reasonable juror could conclude
that [the plaintiff] would have kept his job if he had a different ethnicity, and everything
else had remained the same.” 834 F.3d 760, 764 (7th Cir. 2016). The Court also jettisoned
the “convincing mosaic” as a legal standard. Id. Rather, the Court held that all evidence
should be considered together to understand the pattern it reveals. Id. The Court held that
“district courts must stop separating ‘direct’ from ‘indirect’ evidence and proceeding as if
they were subject to different legal standards.” Id. at 765. Despite the shift, the Court
clarified that its decision did not concern the burden-shifting framework of McDonnell
Douglas or any other burden-shifting framework. Id. at 766. McDonnell Douglas provides
a means of organizing, presenting, and assessing circumstantial evidence in frequently
recurring factual patterns found in discrimination cases. David v. Bd. of Trs. of Cmty. Coll.
Dist. No., 508, 846 F.3d 216, 224 (7th Cir. 2017).
There is no dispute that Robert engaged in statutorily protected activity when he
filed several EEOC charges and a federal lawsuit against the City. Having demonstrated
that he engaged in a statutorily protected activity, Robert must next show that he suffered
a materially adverse employment action. A materially adverse employment action is one
that would dissuade a reasonable employee from engaging in the protected activity.
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). Although it is not necessary

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that the employment action affect the terms and conditions of one’s employment, Roney v.
Ill. Dep’t of Transp., 474 F.3d 455, 461 (7th Cir. 2007), threats of disciplinary action, and
discipline that is never carried out, are not materially adverse employment actions, see
Poullard v. McDonald, 829 F.3d 844, 856 (7th Cir. 2016). That is because “[f]ederal law
protects an employee only from retaliation that produces an injury.” Stephens v. Erickson,
569 F.3d 779, 790 (7th Cir. 2009).
It is clear that the July 2014 investigations into the trash incident are not materially
adverse employment action. Robert himself acknowledges that Sergeant Wolff was right
to investigate the citizen complaint. [DE 53-2 at 23 (“If someone called in about a complaint
of an officer putting trash on the yard, yes. If I was a sergeant, I will investigate the
complaint ... Sergeant Wolff has an obligation to investigate that complaint.”).] The
investigations also did not result in any actual discipline. Instead, they merely raised the
possibility that Robert would be disciplined. While the possibility of discipline can be
stressful, possibility is not enough to support a claim for retaliation. Poullard, 829 F.3d at
856.
It is true that eight months after the investigations, Robert was recommended for
discharge by Police Chief Teachman, based partly on the trash incident. But Robert did not
allege that this recommendation constitutes adverse employment action. And even if he
had, Robert was never actually discharged. Instead, he voluntarily resigned more than a
year later after he had been indicted on a felony civil rights violation.
Robert argues that the SBPD did not follow its own duty manual in investigating

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both the citizen complaint and Internal Affairs investigation. But let’s suppose that’s true.
It’s really neither here nor there because SBPD’s failure to follow its own internal policies
and procedures alone does not constitute adverse employment action under federal law.
At most, “systematic abandonment” of protocol could be relevant to the SBPD’s motive in
investigating Robert for misconduct. See Kidwell v. Eisenhauer, 679 F.3d 957, 969 (7th Cir.
2012). But merely failing to go “by the book” when investigating allegations of vandalism
from a citizen cannot turn these facts into an adverse employment action. Simply put,
neither Sergeant Wolff’s investigation nor Captain Schweizer’s Internal Affairs
investigation would dissuade a reasonable employee from engaging in protected activity.
But let’s suppose Robert can demonstrate that he suffered an adverse employment
action. It matters not because there is another problem with Robert’s retaliation case: he
can’t demonstrate a “causal link” between the protected activity and the adverse
employment action. To make this link, Robert must demonstrate that the SBPD would not
have taken the adverse action “but for” the protected expression. McKenzie, 92 F.3d at 483.
Although suspicious timing can give rise to an inference of causation, “where a significant
intervening event separates an employee’s protected activity from the adverse employment
action he receives, a suspicious-timing argument will not prevail.” Kidwell, 679 F.3d at 967
(discussing suspicious timing in the context of First Amendment retaliation) (internal
quotation marks omitted). An employee’s engaging in protected activity cannot immunize
him from subsequent investigation, discipline, or termination based on his own
inappropriate workplace behavior. Id.

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And that is precisely the case here — Robert’s own act off dumping garbage on his
neighbor’s lawn and the subsequent complaint from the neighbor constitute a significant
intervening factor that entirely disrupts the chain of causation. Even though Robert had
complained of discrimination and unfair treatment relatively close in time to the July 4
investigations (an argument which I can’t even discern from his complaint or brief), the
report from the neighbor is a significant intervening event that removes any inference of
causation. And as I noted before, Robert himself concedes the SBPD should have
investigated the complaint. It was Robert’s own suspected vandalism, which was reported
to the SBPD by a citizen (who was not associated with the SBPD), that prompted both
investigations.
Robert has presented, and I have considered, extensive evidence attempting to show
that the SBPD did not follow its own internal procedures when it investigated the citizen’s
complaint and when it conducted the Internal Affairs investigation into Robert’s alleged
misconduct. For example, Robert argues that the SBPD did not actually receive a citizen
complaint because it wasn’t documented on the proper form, that Robert did not receive
his Garrity rights when questioned about the neighbor’s complaint, and that the SBPD did
not provide a written statement of the allegations to Robert when investigating the trash
incident. Although this failure to follow procedure can’t turn a non-adverse employment
action into an adverse one, under certain circumstances, it could be indicative of a
retaliatory motive. See Kidwell, 679 F.3d at 969.
But whether Robert is correct that the SBPD made mistakes in its handling of both

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investigations — which the City strongly disputes — it is beside the point because Robert’s
allegations of the SBPD’s failure to follow procedure, standing alone, are not sufficient to
demonstrate the causal link. An employer isn’t required to rigidly adhere to its procedural
guidelines in order to avoid an inference of retaliation. Id. Where an employee’s
performance was “seriously deficient and worthy of disciplinary action,” procedural
mistakes and abnormalities will not suffice to establish retaliatory motive. Id.
In this case, Robert admitted that he got out of his squad car, picked up trash that
was in the street and threw it into his neighbor’s yard. He further acknowledged that when
the SBPD receives a citizen complaint, it is right to investigate it. Finally, he admits that,
when he is in a police car, even off duty, the rules of the SBPD manual apply to him. Thus,
based on Robert’s own acknowledgments, it’s clear that, even if the SBPD’s investigation
contained some mistakes and abnormalities, Robert’s own behavior, which prompted his
neighbor to complain to the SBPD, was worthy of at least an investigation. These alleged
flaws cannot on their own establish a retaliatory motive.
What’s more, even if Robert could make out a prima facie case of retaliation,
clearing the first hurdle of our burden-shifting framework, the SBPD has offered a
legitimate, non-retaliatory reason for conducting the investigations: it received a citizen
complaint claiming that Robert had committed vandalism (the reason for Sergeant Wolff’s
investigation) and a citizen’s complaint regarding vandalism by an officer warrants an
Internal Affairs investigation (the reason for Captain Schweizer’s investigation). Robert
has failed to put forth any evidence to show that this reason is pretextual.

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That’s not to say that Robert has not put forth any evidence. To the contrary, he has
filed nearly 70 exhibits in opposing summary judgment. Although the defendants have
moved to strike most of this evidence as inadmissible [DE 65] — and have detailed in
painstaking fashion how each piece of it is inadmissible — I have considered all of it. The
evidence, however, contains mostly legal conclusions and irrelevant information. It is
enough to say that none of Robert’s evidence creates a genuine dispute of material fact that
warrants denying summary judgment.
With respect to the Title VII claim, one final issue must be addressed. In his
complaint, Robert refers only to the July 2014 investigations into the trash incident as
potentially adverse employment actions. But in his briefing in response to this motion,
Robert mentions, only in passing, various disciplines he has received over the course of his
career at the SBPD, including his referral to the Board of Public Safety for discharge, his
being relieved of duty by former Chief of Police Charles Hurley, and his reassignment to
desk duty purportedly without any justification. He also briefly mentions his resigning
purportedly because of the discrimination he faced. Robert appears to be arguing that he
these actions also constitute retaliation.
As an initial matter, when a new argument is made in summary judgment briefing,
I must consider whether the new argument changes the factual theory or just the legal
theories the plaintiff has pursued so far. Chessie Logistics Co. v. Krinos Holdings, Inc., 867
F.3d 852, 860 (7th Cir. 2017). Where it changes the complaint’s factual theory, this could
be an attempt by the plaintiff to, in effect, amend his complaint. If that’s the case, then I

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have discretion to deny the de facto amendment and refuse to consider the new factual
claims. Id. Here, if Robert is trying to assert that the additional discipline constitutes
adverse action, he is clearly attempting to allege a new factual theory that differs
significantly from his complaint and would change his claims in an important way. I am
well within my discretion to refuse to consider these new factual claims. Indeed, to allow
Robert to claim for the first time at the summary judgment stage that several other
incidents in his past could also have been retaliation would present the most unfair of
surprises to the defendants.
But even if those alleged adverse actions had been properly pled, and to the extent
that Robert means to argue they constitute adverse employment action for purposes of
retaliation, I disagree. Robert has put forth absolutely no evidence whatsoever showing
that any of that discipline was imposed in retaliation for his having engaged in protected
activity. He can’t even point to any indicia of retaliation, such as suspicious timing,
suspicious remarks, or disparate treatment from other officers who did not complain of
discrimination. This failure dooms his claim, even if it had been properly pled.
2. First Amendment Retaliation
Robert’s next claim is that the same actions by the SBPD also constitute retaliation
in violation of the First Amendment. To prevail on a First Amendment retaliation claim,
Robert must first establish a prima facie case. This requires showing that: he engaged in
activity protected by the First Amendment; he suffered a deprivation that would likely
deter First Amendment activity in the future; and the First Amendment activity was at

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least a motivating factor in the defendant’s decision to take retaliatory action. McGreal v.
Vill. of Orland Park, 850 F.3d 308, 312 (7th Cir. 2017). If Robert can make out a prima facie
case, the burden shifts to the City to show that the same decision would have been made
in the absence of protected speech. If the City can make such a showing, the burden shifts
back to the plaintiff to demonstrate that the reason is pretextual and the real reason is
retaliatory animus. Id. at 312-13.
As was the case with his Title VII retaliation claim, Robert cannot establish a prima
facie case of retaliation. Because the parties do not dispute that Robert engaged in
constitutionally protected speech, Robert need only show that he suffered a deprivation
and that his First Amendment activity played a role in that deprivation. The deprivation
must be sufficiently adverse to deter the exercise of the individual’s right to free speech.
Hutchins v. Clarke, 661 F.3d 947, 956 (7th Cir. 2011). Robert cites no case law in this Circuit,
or in any other, in which a court has found that an investigation prompted by the plaintiff’s
own misconduct is a deprivation. As a district court in this Circuit recently recognized, the
Supreme Court has alluded to the idea that the adverse consequences of a retaliatory
investigation might, in theory, justify recognizing it as a deprivation. Evans v. City of Chi.,
No. 16-cv-7665, 2017 WL 1954544, at *6 (N.D. Ill. May 11, 2017) (citing Hartman v. Moore, 547
U.S. 250 (2006)). But like in that case, here, there is no suggestion that the investigation was
harassing or jeopardized Robert’s employment. It’s entirely expected that if an employer
receives a complaint about one of its employees, it will investigate that complaint. Being
investigated after being the subject of such a complaint is not enough to deter the exercise

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of an individual’s right to free speech.
Even if there was a deprivation, Robert cannot show that his First Amendment
activity was at least a motivating factor in the defendant’s decision to investigate him.
This element is a causation inquiry, and it requires Robert to show that the protected
conduct was a substantial or motivating factor in the City’s decision. Massey v. Johnson,
457 F.3d 711, 716-17 (7th Cir. 2006). This standard is not the same as the traditional “but
for” standard, but the protected speech must nonetheless be a factor that motivated the
deprivation. Id. at 717.
The City has put forth ample evidence that the reason it investigated Robert for his
conduct related to the trash incident was the citizen’s complaint and its own procedure that
calls for an Internal Affairs investigation whenever there is alleged police misconduct.
Despite his lengthy submissions, Robert has not offered any evidence that a retaliatory
motive played a role in the investigations. Although Robert is not required to come
forward with smoking-gun-type evidence, he still needs to provide some circumstantial
proof, such as suspicious timing or disparate treatment — something — that can support
his claim. See id. He has not done so. As with his Title VII retaliation claim, the only thing
that Robert can point to is the City’s failure to follow its own internal procedures during
the course of the investigations. As I have already explained, this failure alone cannot
create a triable issue of fact sufficient to withstand summary judgment.
Because there is insufficient evidence of retaliation in violation of Robert’s First
Amendment rights or Title VII, his claims against both the City and the individual

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defendants fail.
Conclusion
For the reasons set forth above, the defendants’ motion for summary judgment [DE
52] is GRANTED. All claims are DISMISSED WITH PREJUDICE. The Clerk shall enter
judgment in favor of the defendants and against Theodore Robert accordingly.
The defendants’ motion to strike [DE 65] is DENIED AS MOOT.
SO ORDERED.
ENTERED: January 2, 2018.

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

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