Martin v. Copeland et al

Filing 78

OPINION AND ORDER: The Motion for Summary Judgment Pursuant to FederalRule of Civil Procedure 56 and N.D. L.R. 56-1 62 is GRANTED in part as to the due process claim under the Fourteenth Amendment against the City of East Chicago and the § 19 83 individual capacity claim against Dr. Gerri Browning and DENIED in part as to the § 1983 individual capacity claim against Tom Dabertin, the § 1983 individual capacity claim against Sandra Favella, and the § 1983 individual capacit y claim against Mayor Anthony Copeland, and the Motion for Summary Judgment Pursuant to Federal Rule of Civil Procedure 56 and N.D. L.R. 56-1 65 is GRANTED in PART as to the First Amendment claim, the confinement and intimidation claims against To m Dabertin and Sandra Favella, and the § 1983 individual capacity claim against Mayor Anthony Copeland and DENIED in PART as to the due process claim under the Fourteenth Amendment. The defendant, Anthony Copeland, is DISMISSED from this matter.The question of damages and the § 1983 individual liability claims against the defendants, Tom Dabertin and Sandra Favella, still remain. Signed by Magistrate Judge Andrew P Rodovich on 8/19/19. (ksp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
TERRI G. MARTIN,
Plaintiff,
v.
ANTHONY COPELAND, et al.,
Defendants.

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) Case No. 2:16-cv-59
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OPINION AND ORDER
This matter is before the court on the Motion for Summary Judgment Pursuant to Federal
Rule of Civil Procedure 56 and N.D. L.R. 56-1 [DE 62] filed by the plaintiff, Terri G. Martin, on
December 21, 2018, and the Motion for Summary Judgment Pursuant to Federal Rule of Civil
Procedure 56 and N.D. L.R. 56-1 [DE 65] filed by the defendants, Anthony Copeland, Tom
Dabertin, Sandra Favella, Gerri C. Browning, and the City of East Chicago, Indiana, on
December 21, 2018. For the following reasons, the Motion for Summary Judgment Pursuant to
Federal Rule of Civil Procedure 56 and N.D. L.R. 56-1 [DE 62] is GRANTED in PART and
DENIED in PART, and the Motion for Summary Judgment Pursuant to Federal Rule of Civil
Procedure 56 and N.D. L.R. 56-1 [DE 65] is GRANTED in PART and DENIED in PART.
Background
The plaintiff, Terri G. Martin, filed her Complaint against the individual defendants,
Anthony Copeland, Tom Dabertin, Sandra Favella, and Gerri C. Martin, and against the City of
East Chicago for damages on February 16, 2016. Martin alleged multiple claims. First, she
alleged that the defendants were liable under 42 U.S.C. § 1983 for violating her due process
rights under the Fourteenth Amendment. She claimed that the defendants terminated her

employment without providing her a pre-termination hearing, pursuant to an alleged employment
contract she had with the City of East Chicago Board of Health. Martin also alleged that her
termination was motivated by political considerations in violation of the First Amendment.
Additionally, she claimed that she was confined and intimidated in her office when presented the
termination letter. Martin also asserted that the defendants tortiously interfered with her alleged
contractual property rights in violation of the Fourteenth Amendment. Finally, Martin claimed
that the defendants’ conduct amounted to defamation.
Shortly thereafter, the defendants filed motions to dismiss on March 31, 2016. The court
on January 17, 2017, issued an Opinion and Order dismissing Martin’s defamation and tortious
inference claims, as well as the official capacity claims against the individual defendants. The
court also dismissed Martin’s confinement and intimidation claims against Mayor Copeland and
Dr. Browning. Thus, the remaining claims include: the § 1983 due process claim under the
Fourteenth Amendment; individual capacity claims against Mayor Copeland, Dabertin, Favella,
and Dr. Browning; the First Amendment claim; and the confinement and intimidation claims
against Favella and Dabertin under the Fourth Amendment and Indiana state law.
Martin began working for the City of East Chicago Health Department in June of 2013.
Dr. Browning hired Martin as the Executive Director after the previous Director resigned. As
the Executive Director, she managed the day-to-day operations of the City’s Health Department,
wrote grants to secure funding for programs at the department, served as the liason with the
Indiana State Department of Health, and represented the City as a department head in
collaboration with other department heads throughout the City. Martin was under an
independent contractor contract with a term of June of 2013 through December of 2013. The

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contract contained a provision that the Board could renew the contract period for January 1, 2014
through December 31, 2014, which it did.
The Health Board held a meeting on November 5, 2014. Dr. Browning requested that
Martin’s employment contract be extended for more than one year. At the meeting, it was
suggested by Deborah Mabra, a Board member, to extend Martin’s contract to a three-year term.
The motion was seconded and approved. The 2014 Employment Contract had not yet been
drafted at the time of the meeting, and therefore was not presented to the Health Board at the
November 5, 2014 meeting for approval. David Weigle, an attorney for the City, drew up the
contract after the November 5 meeting. The contract covered Martin’s employment for the term
of January 1, 2015 through December 31, 2017. It contained a provision that Martin could be
removed from her position “for cause” only after a hearing by the Board. It was signed by
Martin, Dr. Browning, and four members of the Health Board on December 17, 2014.
Cody Williams and Efrem Simmons, who worked in the Animal Control Division of the
City’s Health Department, were responsible for feeding and cleaning the dogs under the control
of the department over the Labor Day weekend in 2015. Martin became aware that neither
Williams nor Simmons had taken care of the dogs. In September of 2015, the employees of the
Health Department had a regularly scheduled meeting. At the meeting, Dr. Browning inquired
about the situation with the Animal Control Division. Williams explained that it was the parttime employees’ responsibility to feed and clean the dogs over the Labor Day weekend, but they
had failed to show up. Dr. Browning, Williams, and Martin discussed the situation, and Martin
issued Williams a write up.
After the meeting adjourned, Williams asked to speak with Dr. Browning, and they
stepped in to the copier room to talk. Arnita Fowlkes, a manager for the Health Department,

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indicated that she overheard Martin, who was visibly upset, say “he’s gonna bring the nigger out
of me” and called Williams a “bitch-ass nigger.” Simmons indicated that he overheard Martin’s
remarks, as well. Martin has denied saying anything. Fowlkes advised Dr. Browning of the
incident, and Williams became aware of the remarks and advised Favella.
Based on the alleged remarks made by Martin, an investigation was commenced by the
East Chicago Human Resources Department. The investigation was run by Favella, who was the
interim director of the Human Resources Department at the time of the incident, and Dabertin,
who was an HR consultant for the City. After Favella and Dabertin had interviewed all the
witnesses, they indicated to Dr. Browning that Martin had used racial slurs against Williams and
recommended that her employment be terminated. Dr. Browning agreed. Dabertin, at Dr.
Browning’s request, prepared the termination letter and delivered it to Dr. Browning for his
review and signature. Dr. Browning approved and signed the termination letter on October 13,
2015. Favella and Dabertin delivered the termination letter to Martin at her office. Her
termination was effective immediately.
Martin was terminated for violating the discriminatory conduct and discriminatory
harassment policies, a Category IV type of misconduct under the City’s Employee Handbook.
Employees that commit a Category IV type violation are subjected to immediate suspension
without pay for five days pending review of termination by the Mayor. However, Martin neither
was suspended nor did Mayor Copeland review her termination. The City contends that it had
the right to depart from the disciplinary guidelines including immediate termination, if necessary,
to protect the well-being of the City or its employees.
Martin has argued that she had a property interest in her continued employment with the
City. She asserts that pursuant to the 2014 Employment Contract that was signed on December

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17, 2014, she could be removed as the Executive Director only for cause after a hearing by the
Health Board. However, the termination letter delivered by Dabertin and Favella terminated her
employment with the City effective immediately. A pre-termination hearing before the Board
never occurred. Thus, it is her contention that the defendants violated her due process rights.
She also has argued that each defendant, Dr. Browning, Dabertin, Favella, and Mayor Copeland,
are personally liable for violating her constitutional rights.
Martin has filed a motion seeking summary judgment against the City and the individual
defendants on the 42 U.S.C. § 1983 due process claim, only. The defendants filed a response in
opposition on January 31, 2019, and Martin filed a reply on February 28, 2019. The defendants
also have filed a motion for summary judgment seeking judgment against Martin on the 42
U.S.C. § 1983 due process claim, the First Amendment claim, the intimidation and confinement
claims, and the individual liability claim against Mayor Copeland. Martin objected to the
defendant’s motion on January 30, 2019, and the defendants filed a reply on February 28, 2019.
Discussion
Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment is proper only if
it is demonstrated that “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.
Ct. 2548, 91 L. Ed. 2d 265 (1986); Garofalo v. Vill. of Hazel Crest, 754 F.3d 428, 430 (7th Cir.
2014); Kidwell v. Eisenhauer, 679 F.3d 957, 964 (7th Cir. 2012); Stephens v. Erickson, 569
F.3d 779, 786 (7th Cir. 2009). A fact is material if it is outcome determinative under applicable
law. The burden is upon the moving party to establish that no material facts are in genuine
dispute, and any doubt as to the existence of a genuine issue must be resolved against the moving
party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 160, 90 S. Ct. 1598, 1610, 26 L. Ed. 2d 142,

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155 (1970); Stephens, 569 F.3d at 786. When the movant has met its burden, the opposing party
cannot rely solely on the allegations in their pleadings but must “point to evidence that can be
put in admissible form at trial, and that, if believed by the fact-finder, could support judgment in
his favor.” Marr v. Bank of America, N.A., 662 F.3d 963, 966 (7th Cir. 2011); see also Steen v.
Myers, 486 F.3d 1017, 1022 (7th Cir. 2007) (quoting Hammel v. Eau Galle Cheese Factory,
407 F.3d 852, 859 (7th Cir. 2005) (summary judgment is “the put up or shut up moment in a
lawsuit, when a party must show what evidence it has that would convince a trier of fact to
accept its version of the events.”)). The non-moving party cannot rely on conclusory allegations.
Smith v. Shawnee Library System, 60 F.3d 317, 320 (7th Cir. 1995). Failure to prove an
essential element of the alleged activity will render other facts immaterial. Celotex, 477 U.S. at
323; Filippo v. Lee Publications, Inc., 485 F. Supp. 2d 969, 972 (N.D. Ind. 2007) (the nonmoving party “must do more than raise some metaphysical doubt as to the material facts; he must
come forward with specific facts showing a genuine issue for trial.”).
In viewing the facts presented on a motion for summary judgment, a court must construe
all facts in a light most favorable to the non-moving party and draw all legitimate inferences in
favor of that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510,
91 L. Ed. 2d 202, 212 (1986); McDowell v. Vill. of Lansing, 763 F.3d 762, 764, 765 (7th Cir.
2014). In deciding a motion for summary judgment, the trial court must determine whether the
evidence presented by the party opposed to the summary judgment is such that a reasonable jury
might find in favor of that party after a trial. Anderson, 477 U.S. at 248; Cung Hnin v. Toa,
LLC, 751 F.3d 499, 504 (7th Cir. 2014); Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008).
The fact that cross-motions for summary judgment are pending does not alter the
standard. When evaluating each side’s motion, the court simply “construe[s] all inferences in

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favor of the party against whom the motion under consideration is made.” Metro. Life Ins. Co.
v. Johnson, 297 F.3d 558, 561–62 (7th Cir. 2002) (quoting Hendricks-Robinson v. Excel Corp.,
154 F.3d 685, 692 (7th Cir. 1998)).
Martin has alleged that the defendants violated her due process rights under the
Fourteenth Amendment when she was discharged without a pre-termination hearing. The
Fourteenth Amendment forbids state and local governments from depriving “any person of life,
liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. “[T]he
threshold question in any due process challenge is whether a protected property or liberty interest
actually exists.” Citizens Health Corp. v. Sebelius, 725 F.3d 687, 694 (7th Cir. 2013). A
protected property interest is a legitimate claim of entitlement, not defined by the Constitution,
but “by existing rules or understandings that stem from an independent source such as state law.”
Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). In other words, “‘where
state law gives people a benefit and creates a system of nondiscretionary rules governing
revocation or renewal of that benefit, the recipients have a secure and durable property right, a
legitimate claim of entitlement.’” Chicago United Indus., Ltd. v. City of Chicago, 669 F.3d
847, 851 (7th Cir. 2012) (internal citation omitted).
To establish a claim for a due process violation, Martin must demonstrate: (1) a
cognizable property interest; (2) a deprivation of that property interest; and (3) a denial of due
process. Manistee Apartments, LLC v. City of Chicago, 844 F.3d 630, 633 (7th Cir. 2016).
The court first must determine whether Martin has produced evidence showing that she
possessed a property interest in her job that was protected by the Constitution. Johnson v. City
of Fort Wayne, Ind., 91 F.3d 922, 943 (7th Cir. 1996). If the answer to this question is
affirmative, then the court must decide what process was due before she could be deprived of

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that interest. Fittshur v. Village of Menomonee Falls, 31 F.3d 1401, 1405 (7th Cir. 1994)
(citing Cleveland Board of Education v. Loudermill, 470 U.S. 532, 541, 105 S. Ct. 1487, 84 L.
Ed. 2d 494 (1985)).
Martin asserts that she had a cognizable property interest in her continued employment
which was derived from the 2014 Employment Contract. The contract included a fixed term of
employment for three years from January 1, 2015 to December 31, 2017. Additionally, Martin
asserts that at the November 5, 2014 Health Board meeting a motion was made to extend her
employment to a three year term. The minutes from November 5, 2014 meeting reflect that the
motion was made by Deborah Mabra, Diane Perez seconded the motion, and the motion carried.
The defendants contend that the 2014 Employment Contract was void because it never
was formally approved by the Health Board in an open meeting in accordance with the Indiana
Open Door Law. The defendants claim that because the Health Board did not review the
contract before the November 4, 2015 meeting, Martin did not have a protected property interest
in continued employment with the City and was an at-will employee in accordance with the
City’s Employee Handbook when she was terminated. Therefore, she was not entitled to a pretermination hearing. There is no dispute that the contract was drafted after the November 5,
2014 meeting by Attorney Weigle.
The purpose of the Indiana Open Door Law is for “official action of public agencies [to]
be conducted and taken openly unless otherwise expressly provided by statute, in order that the
people may be fully informed.” Ind. Code § 5-14-1.5-1. An “official action” means to receive
information, deliberate, make recommendations, establish policy, make decisions, or take final
action. Ind. Code § 5-14-1.5-2. A violation of this policy occurs when a public agency
“participate[s] in a series of at least two (2) gatherings of members of the governing body” and

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all of the following are met: “one (1) of the gatherings is attended by at least three (3) members
but less than a quorum of the members of the governing body…,” “the sum of the number of
different members of the governing body attending any of the gatherings at least equals a
quorum of the governing body,” “all the gatherings concern the same subject matter and are held
within a period of not more than seven (7) consecutive days,” and “the gatherings are held to
take office action on public business.” Ind. Code § 5-14-1.5-3.1. While the defendants allege
that pursuant to Indiana’s Open Door Law, the 2014 Employment Contract had to be in existence
and approved at the November 5, 2014 meeting in order to be valid, Indiana’s Open Door Law is
silent on this issue. Additionally, the defendants fail to cite any case authority to support this
proposition.
At the meeting, Dr. Browning suggested that Martin’s employment be extended for more
than one year. Dr. Browning, as the City’s health officer, may appoint and employ the
professional, clerical, and other employees who are necessary and reasonable to carry out and
perform the duties of the department. Ind. Code § 16-20-4-21. Additionally, the Board of each
city’s health department must confirm the appointment of professional employees who are
appointed by the health officers and who meet the qualification requirements of the local board
for the respective professional employee positions. Ind. Code § 16-20-4-23. At the meeting, a
motion to extend Martin’s contract to a three year term was made, seconded, and passed in
compliance with the “final action” requirement defined as “a vote by the governing body on any
motion. . .” Ind. Code § 5–14–1.5–2(g).
To determine whether Martin had a substantive property interest in her job is a question
of state law. “Historically, Indiana has recognized two basic forms of employment: (1)
employment for a definite or ascertainable term; and (2) employment at-will. If there is an

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employment contract for a definite term, and the employer has not reserved the right to terminate
the employment before the conclusion of the contract, the employer generally may not terminate
the employment relationship before the end of the specified term except for cause or by mutual
agreement. If there is no definite or ascertainable term of employment, then the employment is
at-will, and is presumptively terminable at any time, with or without cause, by either party.”
Orr v. Westminster Village North, Inc., 689 N.E.2d 712, 717 (Ind. 1997).
After the action taken by the Health Board at the November 5, 2014 meeting, Attorney
Weigle prepared Martin’s written contract. The contract was dated December 17, 2014 and
contained the signatures of Diane Perez, Deborah Mabra, Loretta Parker, Dr. Matt Liberan, and
Dr. Browning. There is no dispute that the December 17, 2014 Employment Contract between
Martin and the City contained an “ascertainable term of employment,” specifically, “for a three
(3) year period beginning January 1, 2015 through December 31, 2017.” [Exhibit 7].
Additionally, the alleged contract was fully performed up until the date of Martin’s termination,
including her receiving the salary as set forth in the contract. (Martin Dep. 152). The
aforementioned actions taken by both parties amounts to a validly formed contract, which was
effectuated on December 17, 2014.
However, the defendants have argued that even if the 2014 Employment Contract was
valid, circumstances surrounding Martin’s termination bypassed their contractual obligation to
hold a pre-termination hearing. The defendants have based this argument on the Supreme
Court’s decision, in Gilbert v. Homar, 520 U.S. 924 (1997), that there are some circumstances
where failing to provide a pre-termination hearing of a public employee would not amount to a
due process violation. Specifically, the Supreme Court upheld a police department’s decision to
suspend one of its officers without a suspension hearing where that officer had been charged

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with possession of marijuana, possession with intent to deliver, and conspiracy to violate the
controlled substance law. Homar, 520 U.S. at 926. The officer later was able to tell his side of
the story before being demoted to a groundskeeper. Homar, 520 U.S. at 926. The Supreme
Court found that “the State ha[d] a significant interest in immediately suspending, when felony
charges are filed against them, employees who occupy positions of great public trust and high
public visibility, such as police officers.” Homar, 520 U.S. at 932.
The facts in Homar simply are not comparable to this case. While being a public
employee, Martin’s position did not equate to that of a police officer, and further Martin had not
been charged with any crime. Additionally, Martin was not suspended. If the defendants had
felt that Martin’s alleged use of discriminatory language towards another employee created a
need for her immediate termination, they would not have waited over a month to terminate her.
Consequently, it was feasible for the defendants to hold a pre-termination hearing prior to
October 13, 2015. See Bradley v. Village of University Park, Illinois, 2019 WL 3121844, at *4
(7th Cir. 2019) (citing Zinermon v. Burch, 494 U.S. 113, 132 (1990) (explaining “[i]n situations
where the State feasibly can provide a predeprivation hearing before taking property, it generally
must do so regardless of the adequacy of a postdeprivation tort remedy to compensate for the
taking”).
An employment contract between Martin and the City was validly formed on December
17, 2014 entitling Martin to a property interest in her continued employment with the City. The
contract provided, among other things, that Martin was to be removed from her position as
Executive Director of the City’s Health Department only for cause, which included a pretermination hearing. Accordingly, when the City failed to honor the terms of Martin’s
employment contract and terminated her without a prior hearing, her rights to due process under

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the Fourteenth Amendment were violated. Martin is entitled to judgment on her § 1983 claim
under the Fourteenth Amendment.
Martin has sued Dr. Browning, Dabertin, Favella, and Mayor Copeland individually
under 42 U.S.C. § 1983 for violating her constitutional rights. There is no dispute that Dr.
Browning, Chief Health Officer, Mayor Copeland, Mayor of East Chicago, Dabertin, HR
consultant for the City, and Favella, Director of HR for the City were all state actors. “[S]tate
employment is generally sufficient to render the defendant a state actor.” West v. Atkins , 487
U.S. 42, 48, 108 S. Ct. 2250, 2255, 101 L. Ed. 2d 40 (1988) (internal quotations and citations
omitted). However, Martin must show that the individual defendants, acting under color of state
law, deprived her of a right secured by the Constitution or laws of the United States.” Estate of
Sims ex rel. Sims v. Cty. of Bureau, 506 F.3d 509, 514 (7th Cir. 2007). An individual cannot be
held liable in a § 1983 action unless he or she has caused or participated in the alleged
constitutional deprivation. Colbert v. City of Chicago, 851 F.3d 649, 657 (7th Cir. 2017)
(internal quotation omitted) (citing Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983)).
The defendants have dedicated one paragraph in a footnote to the doctrine of qualified
immunity. “Arguments not developed in any meaningful way are waived.” Cent. States, Se. &
Sw. Areas Pension Fund v. Midwest Motor Express, Inc., 181 F.3d 799, 808 (7th Cir. 1999).
Accordingly, the defendants have waived the argument of qualified immunity for lack of
development.
First, Martin has argued that Dr. Browning is personally liable under § 1983. Dr.
Browning signed the letter terminating Martin, effective immediately. He testified that he did
not consider the employment contract when he signed the letter of termination. [Browning Dep.
58]. However, he has acknowledged that he was aware of the provision in the contract entitling

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Martin to a hearing before the Board prior to her being removed from her position. [Browning
Dep. 57]. Despite being aware that Martin’s contract required a pre-termination hearing, Dr.
Browning signed the letter terminating Martin effective immediately without the benefit of a
hearing, with reckless disregard for her constitutional rights. Martin is entitled to judgment
against Dr. Browning in his individual capacity.
Next, Martin has argued that Dabertin and Favella also are personally liable under §
1983. Dabertin and Favella conducted the investigation of Martin’s alleged use of vile, obscene,
and discriminatory language that resulted in her termination. Martin has argued that the
investigation lacked neutrality. She asserts that the lack of neutrality, standing alone, is
sufficient to find that Dabertin and Favella deprived her of due process. Martin contends that
Favella testified, while discussing that Martin had not been given anything in writing concerning
her alleged infraction during the investigation and prior to the termination letter, that “[i]t was
Tom and myself. We did it in collaboration in our investigation to terminate Martin’s
employment.” [Favella Dep. 65]. Martin contends that the above statement clearly indicates that
the decision to recommend termination of her employment preceded the investigation.
In conducting the investigation, Dabertin and Favella interviewed Martin, Williams,
Simmons, Fowlkes, and Dr. Browning. Simmons and Fowlkes, who were the only individuals in
the area when Martin made the alleged remarks, testified that they heard Martin use racial slurs
against Williams. [Fowlkes Dep. 18, Simmons Dep. 6]. Thus, Dabertin and Favella concluded
that Martin used derogatory remarks and recommended to Dr. Browning that Martin be
terminated. A termination letter was prepared, signed by Dr. Browning, and hand delivered to
Martin by Dabertin and Favella. However, of the defendants, it was Dr. Browning who made the
decision to terminate Martin’s employment without notice and an opportunity to be heard.

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Martin has not produced any evidence that the investigation lacked neutrality. Additionally,
Dabertin and Favella did not cause the constitutional deprivation because it was Dr. Browning’s
decision to discharge Martin.
Next, Martin asserts that Mayor Copeland’s deliberate and reckless disregard of her
constitutional rights imposes liability on him individually. The defendants concluded that Martin
committed a “Category IV infraction,” which ultimately resulted in her October 13, 2015
termination. Martin, however, has asserted that Mayor Copeland disregarded her constitutional
rights by failing to adhere to the proper disciplinary procedures for a Category IV infraction, as
set out in East Chicago’s personnel policy. The policy states that behavior amounting to a
Category IV infraction “will result in an immediate suspension without pay for five days pending
review by the Mayor.” [Exhibit D]. Martin has argued that she was not suspended for five days,
nor did Mayor Copeland review the termination decision. By asserting an argument of liability
for Mayor Copeland based solely on the City’s personnel policy, Martin has abandoned her
argument that her due process rights were derived from the 2014 Employment Contract. It is
also worth noting that Martin, herself, has indicated that reliance on the City’s “handbook” is
only for matters concerning at-will employees and is not an appropriate source of law when
handling employees with an ascertainable term of employment. Accordingly, the court finds
Martin’s argument as to Mayor Copeland’s personal liability to be without merit.
The defendants also have moved for judgment on this claim arguing that Mayor
Copeland was not personally involved in depriving Martin of her constitutional rights. The
defendants assert that Mayor Copeland did not have any involvement in Martin’s termination.
He was advised of the ongoing investigation involving Martin, and at the conclusion of the
investigation, the recommendation by Dabertin and Favella to discharge Martin. However, he

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did not assist in the preparation of her termination letter nor was he present for her termination.
Rather, Mayor Copeland relied on the City’s HR department to make the hiring and firing
decision. The violation of Martin’s constitutional rights did not occur with Mayor Copeland’s
knowledge or consent. Furthermore, there is no evidence that Mayor Copeland was personally
involved in the deprivation of Martin’s constitutional rights or that he acted with a reckless
disregard of those rights. Accordingly, Mayor Copeland, is not personally liable under § 1983
and judgment should be entered in his favor.
The defendants have moved for summary judgment on Martin’s First Amendment claim
and her intimidation and confinement claims under the Fourth Amendment and Indiana state law
against Dabertin and Favella. Martin chose not to address these claims in her response, and
therefore has waived any arguments in opposition. When a party fails to address an argument in
a summary judgment briefing, that is deemed a waiver. Cruse v. Hook-Superx, Inc., 561 F.
Supp. 2d 993, 1001 (N.D. Ind. 2008); see Roe–Midgett v. CC Servs., Inc., 512 F.3d 865, 876
(7th Cir. 2008). Although Martin has waived her arguments, the facts cited by the defendants
warrant summary judgment on these claims. The defendants have shown that Martin was
terminated for a non-political reason. Additionally, Martin’s intimidation and confinement
claims lack evidentiary support. Accordingly, the defendants are entitled to judgment on
Martin’s First Amendment claim, as well as her confinement and intimidation claims made under
the Fourth Amendment and Indiana state law.
Based on the foregoing reasons, the Motion for Summary Judgment Pursuant to Federal
Rule of Civil Procedure 56 and N.D. L.R. 56-1 [DE 62] is GRANTED in part as to the due
process claim under the Fourteenth Amendment against the City of East Chicago and the § 1983
individual capacity claim against Dr. Gerri Browning and DENIED in part as to the § 1983

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individual capacity claim against Tom Dabertin, the § 1983 individual capacity claim against
Sandra Favella, and the § 1983 individual capacity claim against Mayor Anthony Copeland, and
the Motion for Summary Judgment Pursuant to Federal Rule of Civil Procedure 56 and N.D.
L.R. 56-1 [DE 65] is GRANTED in PART as to the First Amendment claim, the confinement
and intimidation claims against Tom Dabertin and Sandra Favella, and the § 1983 individual
capacity claim against Mayor Anthony Copeland and DENIED in PART as to the due process
claim under the Fourteenth Amendment. The defendant, Anthony Copeland, is DISMISSED
from this matter.
The question of damages and the § 1983 individual liability claims against the
defendants, Tom Dabertin and Sandra Favella, still remain.
ENTERED this 19th day of August, 2019.
/s/ Andrew P. Rodovich
United States Magistrate Judge

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