Crane v. Buncich et al
Filing
57
OPINION AND ORDER: The Court GRANTS in part Buncich's motion to strike 51 as to his request to disregard materials not in the record; Otherwise DENIES in part Buncich's motion to strike 51 ; GRANTS the motion for summary judgment by Jo hn Does 1-10 36 ; DENIES in part Buncich's motion for summary judgment on the Americans with Disabilities Acts claims 38 ; Otherwise GRANTS in part Buncich's motion for summary judgment on all other claims 38 ; GRANTS the motion for sum mary judgment by the Board of Commissioners of Lake County 42 ; GRANTS the motion for leave to file a late memorandum 47 ; DENIES the motion for summary judgment by the Lake County Fraternal Order of Police Lodge # 125 41 ; DIRECTS the Clerk t o dismiss the Board of Commissioners of Lake County and John Does 1-10, from this case, because no claims against them remain; and ORDERS the parties to file a joint status report regarding their willingness to engage in a settlement conference before a Magistrate Judge by 10/17/2018. A trial date will be set under a separate order. Signed by Senior Judge James T Moody on 9/17/2018. (lhc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DAVID CRANE, JR.,
Plaintiff,
v.
JOHN BUNCICH, et al.,
Defendants.
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No. 2:16 CV 334
OPINION and ORDER
Plaintiff David Crane, Jr. (“Crane” or “plaintiff”), brings this suit following the
termination of his employment with the Lake County Sheriff’s Department. (DE # 1.)
Clark sued Lake County Sheriff John Buncich (“Buncich”), the Board of Commissioners
of Lake County (the “Lake County Board”), the Lake County Fraternal Order of
Police—Lodge # 125 (the “Fraternal Order”), and John Does 1–10 (the “Does”). (Id.)
The matter is now before the court on four motions for summary judgment filed
by the various defendants. (DE ## 36, 38, 41, 42.) Additionally, the Fraternal Order has
filed a motion for leave to file a late memorandum in support of its motion for summary
judgment (DE # 47), and Buncich has filed a motion to strike (DE # 51). Plaintiff has
responded to all of these pending motions, except for the motion for summary
judgment brought by John Does 1–10. (See DE ## 48, 49, 50, 54.) Replies were filed by
Buncich (DE ## 52, 55) and the Lake County Board (DE # 53). The time has now passed
for all responses and replies to be filed, and these motions are ripe for ruling. See N.D.
Ind. L.R. 7-1, 56-1.
I.
BACKGROUND1
Plaintiff began his employment with the Lake County Sheriff’s Department on
June 12, 1998. (DE # 1 ¶ 13.) Plaintiff asserts he was later promoted to the position of
corporal. (Id. ¶ 14.)
John Buncich was elected Sheriff of Lake County in 2012. However, plaintiff says
he openly supported another candidate for the position, named Richard Liggen.
(Id. ¶ 15.) After Buncich was elected, plaintiff says he was demoted and transferred to
the transport division, where he was tasked with transporting prisoners to jails. (DE
# 1-1 at 6.) Plaintiff alleges that he sought to return to the patrol division, but Buncich
did not grant the request. (See DE # 1 ¶ 18.) Replying to plaintiff, Buncich said “keep
your mouth shut, do your job, and avoid talking to [me] when you see me.” (Id.)
Plaintiff says his supervisor, Guy Mikulich, told plaintiff that he “got exactly what he
deserved” for campaigning against Buncich. (Id. ¶ 19.)
Plaintiff was injured while on duty in February of 2014. (DE # 39 at 2.) Plaintiff
asserts he sustained injuries to his neck which required a rod to be placed from the C7
to C3 discs. (DE # 1-1 at 6.) Plaintiff began taking sick leave due to his injuries. (DE # 1
¶ 26.) In December 2014, he requested an extension of sick leave. (DE # 39 at 2.)
However, according to plaintiff, this request for extension was denied and, instead, his
employment was terminated. (DE ## 1 ¶¶ 28–29; 1-1 at 7.) According to plaintiff, this
1
In the summary that follows, any unattributed facts are undisputed. This
summary provides an overview. Additional relevant facts will be referred to in the
analysis that follows.
2
termination was executed by the Lake County Sheriff’s Department through its “Merit
Board.” (DE # 1-1 at 7.)
Plaintiff was placed on a disability retirement pension on January 29, 2015. (DE
# 40-3.) However, at a hearing before the “Pension Board” on March 12, 2015, plaintiff
asserted that he wished to continue his employment at the Sheriff’s Department. (DE
# 1 ¶ 30.) Nevertheless, plaintiff says he began receiving pension benefits in April 2015.
(DE # 1-1 at 7.)
Based on these events, plaintiff filed a charge of discrimination with the Equal
Employment Opportunity Commission (the “EEOC”) on January 25, 2016. (DE # 1
¶ 11.) The charge states the last date of discrimination was March, 11, 2015. (DE # 40-4.)
Plaintiff’s charge was dismissed by the EEOC as untimely, on April 21, 2016. (DE
# 40-5.)
Plaintiff initiated his case in this court by filing a verified complaint on July 14,
2016, against Buncich, the Lake County Board, the Fraternal Order, and John Does 1–10.
(DE # 1.) Plaintiff alleges seven causes of action: (1) violation of the Americans with
Disabilities Act (the “ADA”), (2) wrongful termination, (3) infliction of emotional
distress, (4) violation of the Rehabilitation Act of 1973, (5) second violation of the ADA,
(6) violation of 5 U.S.C. § 1502, and (7) breach of contract. (DE # 1 at 7–11.) Discovery
has been completed in this case, and defendants have moved for summary judgment on
all claims. The court will now address the pending motions.
3
II.
LEGAL STANDARD
Federal Rule of Civil Procedure 56 requires the entry of summary judgment, after
adequate time for discovery, against a party “who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). “[S]ummary judgment is appropriate—in fact, is mandated—where there are no
disputed issues of material fact and the movant must prevail as a matter of law. In other
words, the record must reveal that no reasonable jury could find for the non-moving
party.” Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994)
(internal citations and quotation marks omitted).
The moving party bears the initial burden of demonstrating that these
requirements have been met. Carmichael v. Village of Palatine, Ill., 605 F.3d 451, 460 (7th
Cir. 2010). “[T]he burden on the moving party may be discharged by ‘showing’—that is,
pointing out to the district court—that there is an absence of evidence to support the
nonmoving party’s case.” Celotex, 477 U.S. at 325. Once the moving party has met his
burden, the non-moving party must identify specific facts establishing that there is a
genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986);
Palmer v. Marion County, 327 F.3d 588, 595 (7th Cir. 2003) (citing Celotex, 477 U.S. at 324).
In doing so, the non-moving party cannot rest on the pleadings alone, but must present
fresh proof in support of its position. Anderson, 477 U.S. at 248; Donovan v. City of
Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994). In viewing the facts presented on a motion
4
for summary judgment, the court must construe all facts in a light most favorable to the
non-moving party and draw all reasonable inferences in favor of that party. Chmiel v. JC
Penney Life Ins. Co., 158 F.3d 966 (7th Cir. 1998).
III.
DISCUSSION
A.
Motion to Strike (DE # 51)
Although the motion to strike is the most recently filed of defendants’ motions,
the court will address it first, due to the questions it raises regarding the sufficiency of
plaintiff’s response briefs and of the record before the court.
Buncich presents three arguments in the motion to strike. First, Buncich asserts
plaintiff has failed to comply with Northern District of Indiana Local Rule 56-1(b)(2) in
his response to Buncich’s motion for summary judgment. (DE # 51 at 2.) That rule states
that a response brief to a motion for summary judgment—or its appendix— “must
include a section labeled ‘Statement of Genuine Disputes’ that identifies the material
facts that the party contends are genuinely disputed so as to make a trial necessary.”
N.D. Ind. L.R. 56-1(b)(2).
Buncich is correct that plaintiff has failed to include such a section in his response
to Buncich’s motion for summary judgment. (See DE # 49.) In fact plaintiff has not
included a statement of genuine disputes in his response to any of the pending motions
for summary judgment. Instead he includes a “Statement of Relevant Facts” in each
response. (See e.g., DE # 49 at 1–3.) Buncich argues that the court should strike plaintiff’s
5
Statement of Relevant Facts and find that Buncich’s statement of facts is undisputed.
(DE # 51 at 2.)
Although plaintiff has not strictly complied with the local rules, this does not
require the court to strike his factual statements. Rather, “it is clear that the decision
whether to apply the rule strictly or to overlook any transgression is one left to the
district court’s discretion.” Stevo v. Frasor, 662 F.3d 880, 887 (7th Cir. 2011) (affirming a
district court’s decision to consider a defendant’s summary judgment motion although
it did not comply strictly with all formal requirements of the local rule).
In the case at hand, plaintiff has presented a factual statement in his response
brief which outlines the relevant facts of the case from his perspective. It may not be
perfect compliance, but local rules are “not intended to provide a maze of technical
traps to complicate and delay litigation without advancing merits.” Stevo, 662 F.3d at
887. Therefore, the court will not strike plaintiff’s Statement of Relevant Facts, nor will it
find that Buncich’s statement of facts are undisputed. The court denies Buncich’s first
request in his motion to strike.
Second, Buncich asks the court to strike plaintiff’s Statement of Relevant Facts
because it does not comply with Federal Rule of Civil Procedure 56(c)(1)(A). The rule
states “[a] party asserting that a fact . . . is genuinely disputed must support the
assertion by . . . citing to particular parts of materials in the record.” Fed. R. Civ. P.
56(c)(1)(A). The rule goes on the say that affidavits are acceptable materials to support
genuinely disputed facts. Id.
6
Plaintiff’s Statement of Relevant Facts does not contain citations to particular
materials in the record. However, it is clear to the court that the Statement of Relevant
Facts is largely a restatement of the four-page fact section from plaintiff’s verified
complaint (DE # 1 at 4–7) and of plaintiff’s two-page affidavit (DE # 1-1 at 6–7). Both of
those documents may properly support facts under Rule 56(c)(1)(A).2 Therefore, to the
extent the Statement of Relevant Facts derives from these two proper materials in the
record, the court will not strike it and the court denies Buncich’s second request from
the motion to strike. Nevertheless, in reviewing plaintiff’s arguments in response to the
pending motions for summary judgment, the court will consider that it is not the
judge’s role “to comb through the record without a guide to find disputes of material
fact that preclude summary judgment.” Conley-Eaglebear v. Miller, No. 16-3065, 2017 WL
7116973, at *1 (7th Cir. Sept. 26, 2017).
Lastly, Buncich asks the court to disregard facts presented by plaintiff which are
not based on materials in the record. (DE # 51 at 4.) The court agrees with Buncich that
it must “not speculate as to what is contained in a document not in the record, and will
consider only the actual record before it.” United States v. Conservation Chem. Co. of Ill.,
785 F. Supp. 1215, 1230 (N.D. Ind. 1989).
2
The complaint in this case was signed and verified by plaintiff (DE # 1 at 14)
and therefore, it is treated as an affidavit. See Ford v. Wilson, 90 F.3d 245, 247 (7th Cir.
1996) (“By declaring under penalty of perjury that the complaint was true, and by
signing it, he converted the complaint or rather those factual assertions in the complaint
that complied with the requirements for affidavits specified in the rule . . . into an
affidavit.”).
7
Specifically, Buncich argues plaintiff improperly references two items in his
response to Buncich’s motion for summary judgment: (1) a website
“www.theodysseyonline.com/from-the-eyes-of-an-officer” (DE # 49 at 2), and (2) a
“Guide to Indiana County Government, 2009 Edition, Chapter 5, p. 34” (DE # 49 at 9).
Neither the website nor the guide are in the record.
Still, plaintiff argues that references to these items should not be stricken due to
Local Rule 7-1(f). (DE # 54 at 7.) However, Local Rule 7-1(f) is not relevant to this
discussion. It pertains to decisions, statutes, and regulations that are not available
electronically. See N.D. Ind. L.R. 7-1(f). The truly relevant Local Rule is 56-1(b) which
requires a party opposing a motion for summary judgment to file “any materials that
the party contends raise a genuine dispute.” N.D. Ind. L.R. 56-1(b)(1)(B).
Accordingly, the court will only consider materials in the record, and Buncich’s
motion to strike is granted in part. The court will not consider the website or the guide
in ruling on the motions for summary judgment and strikes any reference to them from
plaintiff’s responses.
B.
Motion for Summary Judgment by John Does 1–10 (DE # 36)
In the complaint, plaintiff states “it is believed that various John Does 1–10
participated in concert with Defendant Buncich in facilitating the violations of the
American[s] with Disabilities Act resulting in the injuries suffered by Plaintiff and in the
violations of 5 U.S.C. § 1502.” (DE # 1 ¶ 10.) He makes no further allegations regarding
these unnamed defendants.
8
John Does 1–10 move for summary judgment on any claims against them. (DE
# 36.) They argue that claims against unnamed parties are improper in federal court.
(DE # 37 at 6.) Plaintiff did not respond to this motion or otherwise contest the Does’
argument.
According to the Seventh Circuit, “it is pointless to include lists of anonymous
defendants in federal court; this type of placeholder does not open the door to relation
back under [Federal Rule of Civil Procedure] 15, nor can it otherwise help the plaintiff.”
Wudtke v. Davel, 128 F.3d 1057, 1060 (7th Cir. 1997) (internal citations omitted).
Discovery has now closed in this matter and plaintiff has still not attempted to name or
serve any of the Does. Therefore, the court will grant summary judgment in favor of
John Does 1–10.
C.
Motion for Summary Judgment by John Buncich (DE # 38)
Plaintiff brings suit against Buncich in his official capacity as Sheriff of Lake
County. (DE # 1 ¶ 7.) A suit against a public employee in his official capacity is
equivalent to a suit against the government entity for which the employee is an agent.
Kentucky v. Graham, 473 U.S. 159, 165–66 (1985). Therefore, the claims against Buncich
are equivalent to claims against the Lake County Sheriff’s Department.
Six of the seven claims in plaintiff’s complaint are asserted against Buncich: (1)
violation of the Americans with Disabilities Act, (2) wrongful termination, (3) infliction
of emotional distress, (4) violation of the Rehabilitation Act of 1973, (5) second violation
of the Americans with Disabilities Act, and (6) violation of 5 U.S.C. § 1502. (DE # 1 at
9
7–1.) Buncich moves for summary judgment on all claims against him. (DE # 38.) The
court will discuss each of defendant’s arguments, in turn.
i.
State Law Claims
Plaintiff’s claims for wrongful termination and infliction of emotional distress are
both state law claims, brought under Indiana law. Buncich moves for summary
judgment on these claims, on the basis that plaintiff has failed to comply with the notice
requirements mandated by the Indiana Tort Claims Act (the “ITCA”). (DE # 39 at 4.)
Tort claims brought under Indiana law are subject to the ITCA’s procedural and
substantive requirements. Keri v. Bd. of Trs. of Purdue Univ., 458 F.3d 620, 648 (citing
Bienz v. Bloom, 674 N.E.2d 998, 1003 (Ind. Ct. App. 1996) (“[O]ur supreme court has held
that the Act applies to all torts.”)). Compliance with the ITCA is a prerequisite to
pursuing a tort claim against a government entity regardless of whether the suit is filed
in state or federal court. Id. One of the ITCA’s requirements is that the plaintiff must
provide notice of tort claims to the defendant’s government body within 180 days after
the alleged loss occurs. Id. at 648-49 (citing Kelly v. City of Michigan City, 300 F.Supp.2d
682, 689 (N.D. Ind. 2004) (granting summary judgment against plaintiff who failed to
file tort claims notice within 180 days of the alleged violation)); Ind. Code § 34-13-3-8(a);
§ 34-6-2-110(7). Failure to timely file a notice of tort claim is a jurisdictional bar to the
claimant’s action and provides immunity from liability. Doe v. Lance, 3:95-CV-736, 1996
WL 663147, at *5 (N.D. Ind. July 15, 1996).
10
Failure to comply with the ITCA notice requirements is an affirmative defense
that defendants must raise in their responsive pleadings. Brown v. Alexander, 876 N.E.2d
376, 383–84 (Ind. Ct. App. 2007). Once the defendant raises the defense, the burden
shifts to the plaintiff to prove compliance. Id. Buncich raised this as an affirmative
defense in his answer to the complaint. (DE # 14.)
Plaintiff does not argue that he complied with the notice requirements in Indiana
Code sections 34-13-3-8 and 34-13-3-10. (See DE # 49 at 3.) Instead, he argues that strict
compliance with the statute is not required, and that he has substantially complied with
the statute. (Id.) Plaintiff is correct that strict compliance is not absolutely necessary.
“The notice requirements of the Tort Claims Act are phrased in mandatory language,
however, the courts have held that substantial compliance with its provisions will
suffice when the purpose of the statute has been satisfied.” Bd. Of Aviation Comm’rs of St.
Joseph Cnty. v. Hestor, 473 N.E.2d 151, 154 (Ind. Ct. App. 1985).
In Schmoettmer v. Wright, 992 N.E.2d 702 (Ind. 2013), the Indiana Supreme Court
further explained what constitutes “substantial compliance” with the notice
requirement:
Substantial compliance with the statutory notice requirements
is sufficient when the purpose of the notice requirement is
satisfied. The purposes of the notice statute include informing
the officials of the political subdivision with reasonable
certainty of the accident and surrounding circumstances so
that the political subdivision may investigate, determine its
possible liability, and prepare a defense to the claim. What
constitutes substantial compliance, while not a question of fact
but one of law, is a fact-sensitive determination. The crucial
consideration is whether the notice supplied by the claimant of
11
his intent to take legal action contains sufficient information for
the city to ascertain the full nature of the claim against it so that
it can determine its liability and prepare a defense. But mere
actual knowledge of an occurrence, even when coupled with
routine investigation, does not constitute substantial
compliance.
992 N.E.2d at 707 (internal quotation marks and citations omitted).
Plaintiff says he substantially complied with the notice requirement when he
spoke before the Pension Board on March 12, 2015, stating the damage he had suffered,
the nature of his disability, and his request for accommodation. (DE # 49 at 4.) In his
complaint, plaintiff also asserts he told the Pension Board that he had no desire to retire
and wished to continue his employment as a police officer. (DE # 1 ¶ 30.) This event
took place within the 180-day time limit required by statute.
Nevertheless, although plaintiff expressed a desire to remain employed, there is
no evidence that he supplied any notice to the Sheriff’s Department that he intended to
take legal action or assert a claim, as required by the Indiana Supreme Court. See Ind.
State Highway Comm’n v. Morris, 528. N.E.2d 468 (Ind. 1988) (“[R]equiring a claimant to
announce his intention to assert a claim . . . [is a] recognized objective[] of the statutory
notice requirement.”). Therefore, the purposes of the notice requirement were not
satisfied within 180 days and plaintiff has not substantially complied with the notice
requirement. Accordingly, plaintiff’s state law claims are barred and the court will
grant summary judgment on these claims.
12
ii.
ADA Claims
In plaintiff’s first cause of action, he claims Buncich failed to provide reasonable
accommodations for plaintiff after his injury and that Buncich terminated plaintiff’s
employment, in violation of the ADA. (DE # 1 ¶¶ 33–36.) Plaintiff also alleges in his
fifth cause of action that defendant failed to grant plaintiff disability retirement benefits.
(DE # 1 ¶ 64.)
Buncich moves for summary judgment on plaintiff’s ADA claims solely3 on the
grounds that plaintiff failed to timely file a charge of discrimination with the EEOC. (DE
# 39 at 5–6.) Title I of the ADA requires that an employee file a charge of discrimination
with the EEOC prior to filing a complaint in federal court. See 42 U.S.C. § 12117(a)
(incorporating 42 U.S.C. § 2000e-5). The charge must be filed within 300 days after the
alleged discrimination; failure to file a timely charge precludes recovery on the claim.
See Beamon v. Marshall & Isley Trust Co., 411 F.3d 854, 860 (7th Cir. 2005).
Plaintiff filed his charge of discrimination on January 25, 2016. (DE # 1 ¶ 11.) The
charge states the last date of discrimination was March, 11, 2015. (DE # 40-4.) Therefore,
plaintiff filed his charge 320 days after the last day of the alleged discrimination, which
3
In his reply, Buncich makes a broader argument about plaintiff’s failure to
present evidence in support of the ADA claims. (See DE # 52 at 4.) However, the court
need not address arguments raised for the first time in the reply. See Hernandez v. Cook
Cnty. Sheriff's Office , 634 F.3d 906, 913 (7th Cir. 2011) (“It is well established in our
precedents that “skeletal” arguments may be properly treated as waived . . . as may
arguments made for the first time in reply briefs.”).
13
was twenty days late. Accordingly, Buncich argues that plaintiff’s recovery is precluded
on the ADA claims.
Plaintiff argues that strict compliance with the 300-day deadline is not required,
and that his deadline for filing the charge should be extended because the delay was
reasonable. (DE # 49 at 6.) The statutory filing period is not absolute. Chakonas v. City of
Chicago, 42 F.3d 1132, 1135 (7th Cir. 1994). “Either equitable tolling or equitable estoppel
can work to relax a statutory filing period.” Id. “Equitable tolling is appropriate when
the plaintiff, despite all due diligence, is unable to obtain vital information bearing on
the existence of his claim.” Id. That doctrine is not applicable to the case at hand.
Meanwhile, equitable estoppel “comes into play when a defendant takes active
steps to prevent a plaintiff from suing on time.” Chakonas, 42 F.3d at 1135. In his
response, plaintiff argues that defendant’s actions caused his filing to be delayed.
Specifically, in his affidavit, plaintiff asserts that after his hearing with the Pension
Board on March 12, 2015, he “sought assistance through the grievance process with the
[Fraternal Order], specifically President Tim Downs.” (DE # 1-1 at 7.) Plaintiff attests
that Downs advised “he would take up the matter with their legal advisor.” (Id.) Yet,
plaintiff received no further response. Plaintiff argues he relied on Downs’s initial
statement and the lack of a response caused his charge to be untimely. (DE # 49 at 6.)
According to plaintiff, Tim Downs was an employee of the Lake County Sheriff’s
Department, and thus, an agent of the employer. (See # 1-1 at 7.) “Equitable estoppel is
available only when the employee’s otherwise untimely filing was the result either of a
14
deliberate design by the employer or of actions that the employer should unmistakably
have understood would cause the employee to delay filing his charge.” Hamilton v.
Komatsu Dresser Indus., Inc., 964 F.2d 600, 605 (7th Cir. 1992) (internal quotation marks
omitted).
When construing the facts presented in a light most favorable to plaintiff, an
employee of the Sheriff’s Department (Downs) actively made a statement to
plaintiff—that he would take up the matter with his legal advisor—which the defendant
should have understood would cause plaintiff to delay the filing of his charge. Under
this view of the facts, plaintiff reasonably relied on a statement which seemed to
indicate his charge was being handled by the legal advisor at the Fraternal Order, and
that he would not need to act on it independently. Consequently, when viewing the
facts as plaintiff asserts them, equitable estoppel is available, under the standard set
forth in Hamilton. Under equitable estoppel, plaintiff’s filing of a charge of
discrimination a mere 20 days late can be excused. Therefore, the court cannot grant
summary judgment on this claim.
iii.
Rehabilitation Act Claim
Plaintiff asserts a claim against Buncich for a violation of the Rehabilitation Act.
(DE # 1 at 9.) The Rehabilitation Acts states that “[n]o otherwise qualified individual
with a disability . . . shall, solely by reason of her or his disability, be excluded from the
participation in, be denied the benefits of, or be subjected to discrimination under any
program or activity” covered by the Act. 29 U.S.C. § 794(a). To succeed on a claim of
15
employment discrimination under this statute, plaintiff must prove that: (1) he is
disabled within the meaning of the statute, (2) he was otherwise qualified for the job in
question, (3) he was discharged or the subject of other adverse action solely because of
his disability, and (4) the employment program of which his job was a part received
federal financial assistance. Felix v. Wisc. Dep’t of Trans., 828 F.3d 560, 568 (7th Cir. 2016).
As to the fourth requirement, plaintiff presents two potential pieces of evidence
in support of the notion that the Sheriff’s Office receives federal funding. (See DE # 49 at
9.) First, plaintiff says that Buncich recently admitted in a criminal matter that the Lake
County Jail received Federal Funds. (Id.) However, plaintiff does not cite to the record
in support of this particular assertion. For the reasons stated earlier in this order, the
court will not look outside the record, nor will it comb the record in search of this fact.
Second, plaintiff presents a quote from the Guide to Indiana County
Government, 2009 Edition, Chapter 5, p. 34. (DE # 49 at 9.) The court already
decided—in ruling on the motion to strike—that it will not consider this Guide in
deciding the motion for summary judgment.
Consequently, plaintiff has pointed to no particular materials in the record which
support the fourth element of his Rehabilitation Act claim. Therefore, no genuine
dispute of fact remains, the claim fails, and the court will grant summary judgment on
the claim.
16
iv.
5 U.S.C. § 1502 Claim
Plaintiff asserts a claim for violation of 5 U.S.C. § 1502, claiming he was
discriminated against for his participation in a political campaign. (DE # 1 ¶ 67.)
Buncich moves for summary judgment on this claim, on the basis that 5 U.S.C. § 1502,
commonly known as the Hatch Act, does not provide a private right of action.
In his response, plaintiff says that the Hatch Act can provide the basis for his
claim, and he cites to McKechnie v. McDermott, 595 F.Supp. 672 (N.D. Ind. 1984) to
support his argument. However, McKechnie does not stand for the proposition that an
individual has a private right of action for a violation of the Hatch Act. On the contrary,
the court in McKechnie only analyzed the Hatch Act in order to determine whether the
plaintiff had violated the Act. McKechnie, 595 F. Supp. at 675. The plaintiff in that case
did not assert a private claim for a violation of the Act. See id. Therefore, in the case at
hand, plaintiff has not provided any legal support for the notion that he has a private
right of action under the Hatch Act.
Additionally, plaintiff’s response contains a new claim for “Interference with
First Amendment Rights,” pursuant to Indiana Code § 36-8-10-11(c). (DE # 49 at 10.) By
adding a new claim, plaintiff is attempting to amend the original complaint. This
attempted amendment necessarily fails because “a plaintiff may not amend his
complaint through arguments in his brief in opposition to a motion for summary
judgment.” Anderson v. Donahoe, 699 F.3d 989 (7th Cir. 2012) (internal quotation marks
omitted). Since the amendment is not permitted, plaintiff’s only claim related to his
17
political participation is the Hatch Act claim; and, plaintiff has not demonstrated that he
has a private right of action to assert that claim. Therefore, the court will grant
summary judgment on this claim.
D.
Motion for Summary Judgment by the Lake County Board (DE # 42)
In the complaint, plaintiff identifies the Lake County Board as “the governing
and policy making body for employees of the county government for Lake County,
Indiana.” (DE # 1 ¶ 8.) He brings suit against the Lake County Board for “violating the
Americans with Disabilities Act resulting in the injuries suffered by the Plaintiff and in
violation of 5 U.S.C. § 1502.” (Id.) However, the complaint contains no further
allegations regarding the Lake County Board. (See id.) Nor is the Lake County Board
mentioned in plaintiff’s affidavit. (See DE # 1-1 at 6–7.)
Defendant Lake County Board moves for summary judgment on the grounds
that plaintiff makes no specific allegations that the Board “played any role whatsoever
in this alleged course of discriminatory conduct.” (DE # 43 at 7.) Defendant also argues
that the Lake County Board cannot be held liable for defendant Buncich’s actions
because it has no ability to control those actions (other than in some limited emergency
situations). (Id. at 5–6.)
In its response, plaintiff does not point to any additional facts or allegations
which would support claims against the Lake County Board. (See DE # 48.) Plaintiff also
admits that the Lake County Board is not liable for acts of the Sheriff, absent certain
circumstances which plaintiff does not argue are applicable to this case. (Id. at 10.)
18
Rather, plaintiff rests his argument on the premise that the Lake County Board has an
agency relationship with the Sheriff’s Department’s “Merit Board.” (Id.) For support,
plaintiff quotes the Lake County Sheriff’s Retirement Plan Preamble. (Id.) However,
plaintiff does not cite to where this document appears in the record, if it appears at all.
As stated before, it is not this court’s role to “to comb through the record without a
guide to find disputes of material fact that preclude summary judgment.”
Conley-Eaglebear v. Miller, No. 16-3065, 2017 WL 7116973, at *1 (7th Cir. Sept. 26, 2017).
Regardless, the quote plaintiff provides from the Retirement Plan states that the
Merit Board was established by the County Council of Lake County, not the Board of
Commissioners of Lake County. There are no facts or other materials before the court to
indicate that the Lake County Board is in control of the Merit Board.
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 events.” Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003).
Plaintiff has not set forth what particular evidence it has to demonstrate that the Lake
County Board is liable under any claim in this suit. Therefore, the motion for summary
judgment will be granted.
E.
Motion for Summary Judgment by the Fraternal Order (DE # 41) and Motion for
Leave to File Late Memorandum (DE # 47)
The deadline for filing dispositive motions in this case was September 27, 2017.
(DE # 35.) The Fraternal Order filed its motion for summary judgment on that date. (DE
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# 41.) However, it did not file its memorandum in support of the motion until two days
later, on September 29, 2017. (DE # 47-1.)
i.
Motion for Leave
The Fraternal Order moves for leave to file this late memorandum, stating that it
incorrectly noted the deadline to be September 29, 2017, on its calendar. (DE # 47 at 1.)
Plaintiff opposes the motion for leave. (DE # 50 at 3–4.) Nevertheless, the court will
grant the motion for leave. Plaintiff filed its motion for summary judgment before the
deadline and filed the memorandum soon thereafter. It is clear the request for extension
was not made for a dilatory purpose, and the extension of time (two days) is not
unreasonable.
Moreover, plaintiff will not be prejudiced by granting the motion for leave,
because, for the reasons below, the court will deny the Fraternal Order’s motion for
summary judgment.
ii.
Motion for Summary Judgment
According to plaintiff, the Fraternal Order serves as the bargaining unit and
representative for employees of the Lake County Sheriff’s Department. (DE # 1 ¶ 9.)
Plaintiff alleges the Fraternal Order owed him a contractual duty “to represent him [in]
any grievance that he may have in relation to contract issues that include application of
employee manuals and the equal application of employee discipline, including
discharge.” (Id. ¶ 73.) Plaintiff brings a breach of contract claim, asserting the Fraternal
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Order breached its contractual duty to him when it “failed to take grievances on behalf
of [plaintiff] . . . before the Merit Board.” (Id. ¶ 74.)
The Fraternal Order moves for summary judgment on this claim, and supports
its motion with the late-filed memorandum, which contains only a single page of
argument. (DE # 47-1 at 3.) The Fraternal Order makes two brief arguments. In one
argument, the Fraternal Order contends summary judgment is warranted because the
plaintiff has not provided a copy of the contract he claims was breached. (Id.) However,
the Fraternal Order does not deny the existence of the contract. Instead, in absence of
the contract, it argues that plaintiff has no evidence of a breach. (See id.)
The Fraternal Order provides no legal support for its position that a copy of a
contract must be submitted to survive summary judgment on a breach of contract claim.
Since there is no contract in the record, the court cannot speculate as to what is
contained in that document, and will consider only the actual record before it. That
record contains plaintiff’s verified complaint which is to be treated as an affidavit. See
Ford v. Wilson, 90 F.3d 245, 247 (7th Cir. 1996). The verified complaint articulates a
contractual duty and alleges the duty was breached. The Fraternal Order’s argument
contains bald assertions which on their own cannot controvert plaintiff’s affidavit. See
Conservation Chem. Co. of Ill., 785 F. Supp. at 1230. Even though plaintiff has provided
only the narrowest amount of support for his claim, that is still enough support to
survive summary judgment where the defendant’s argument has no legal support or
support from the record.
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In another argument, the Fraternal Order says that in order for a member of a
union to state a breach of contract claim against the union, the individual must afford
the union the opportunity to act on his behalf. (DE # 47-1 at 3 (citing Republic Steel Corp.
v. Maddox, 379 U.S. 650, 652–53 (1965)).) However, the Fraternal Order admits that
plaintiff did seek assistance with his grievance from the Fraternal Order. (Id.) Yet, the
Fraternal Order argues that summary judgment is still appropriate because “the issue
plaintiff wished to grieve was not an issue covered by the purported contract.” (Id.)4
Essentially, defendant argues that it knows the terms of the “purported contract”
and knows that it did not breach those terms when it declined to take up plaintiff’s
grievance. Yet, the Fraternal Order does not provide these contract terms to the court or
explain why plaintiff’s grievance did not fall under the contract.
Based on this argument, defendant seems to be asking the court to simply trust
that its understanding of the contract is correct and that plaintiff’s understanding is not
correct. However, at this stage of the litigation, the court must construe all facts in a
light most favorable to the non-moving party. In that light, the material terms of the
contract remain unclear and in genuine dispute by the parties. This genuine issue of fact
precludes summary judgment. Accordingly, the Fraternal Order’s motion for summary
judgment is denied in its entirety.
IV.
CONCLUSION
4
The Fraternal Order also states, similarly, that it “did not have an opportunity
to pursue a grievance on behalf of Plaintiff because the issue Plaintiff sought to grieve
could not be grieved.” (DE # 47-1 at 3.)
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For the foregoing reasons, the court
(1) GRANTS in part Buncich’s motion to strike (DE # 51) as to his request to
disregard materials not in the record;
(2) Otherwise DENIES in part Buncich’s motion to strike (DE # 51);
(3) GRANTS the motion for summary judgment by John Does 1–10 (DE # 36);
(4) DENIES in part Buncich’s motion for summary judgment on the Americans
with Disabilities Acts claims (DE # 38);
(5) Otherwise GRANTS in part Buncich’s motion for summary judgment on all
other claims (DE # 38);
(6) GRANTS the motion for summary judgment by the Board of Commissioners
of Lake County (DE # 42);
(7) GRANTS the motion for leave to file a late memorandum (DE # 47);
(8) DENIES the motion for summary judgment by the Lake County Fraternal
Order of Police Lodge # 125 (DE # 41);
(9) DIRECTS the Clerk to dismiss the Board of Commissioners of Lake County
and John Does 1–10, from this case, because no claims against them remain; and
(10) ORDERS the parties to file a joint status report regarding their willingness
to engage in a settlement conference before a Magistrate Judge by October 17, 2018. A
trial date will be set under a separate order.
SO ORDERED.
Date: September 17, 2018
s/James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT
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