Major v. State of Indiana et al

Filing 34

OPINION AND ORDER GRANTING 27 MOTION for Summary Judgment. The Court DIRECTS the Clerk of Court to enter judgment in favor of Defendants State of Indiana and Indiana Department of Corrections and against Plaintiff Barbara Major as to all the claims in her Complaint. Signed by Magistrate Judge John E Martin on 11/7/18. (ksp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
BARBARA MAJOR,
Plaintiff,
v.
STATE OF INDIANA and INDIANA
DEPARTMENT OF CORRECTIONS,
Defendants.

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CAUSE NO.: 2:17-CV-12-JEM

OPINION AND ORDER
This matter is before the Court on Defendants’ Motion for Summary Judgment [DE 27], filed
June 14, 2018. For the following reasons, the motion is granted.
I.

Procedural Background
On January 12, 2017, Plaintiff Barbara Major filed a Complaint alleging that she was

discriminated against on the basis of her sex, race, and sexual orientation, and suffered retaliation,
based on her treatment during her employment and her termination from employment at Indiana
Department of Corrections, in violation of Title VII of the Civil Rights Act of 1964, as amended.
On October 23, 2017, Defendants’ Motion for Partial Judgment on the Pleadings was granted as to
Plaintiff’s claims of racial discrimination and punitive damages. The remaining claims are that
Plaintiff faced a hostile work environment and harassment based on her sex and sexual orientation
and was retaliated against through suspension and termination when she complained of the harassing
conduct.
On June 14, 2018, Defendants filed the instant Motion for Summary Judgment requesting
that the Court enter summary judgment on all remaining claims. Plaintiff has not filed a response,
and the time to do so has passed. On July 26, 2018, Defendants filed a reply noting the lack of

response, although noting that a purported response had been emailed to them by counsel for
Plaintiff, and requesting summary ruling on the Motion.
The parties filed forms of consent to have this case assigned to a United States Magistrate
Judge to conduct all further proceedings and to order the entry of a final judgment in this case.
Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).
II.

Summary Judgment Standard
The Federal Rules of Civil Procedure mandate that motions for summary judgment be

granted “if the movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Rule 56 further 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) (citing Fed. R. Civ. P. 56(c)). “[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) (citations and
quotations omitted).
A party seeking summary judgment bears the initial responsibility of informing the court of
the basis for its motion and identifying those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, that it believes
demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323; Fed. R.
Civ. P. 56(c). The moving party may discharge its initial responsibility by simply “‘showing’ – that

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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. When the nonmoving party would have the burden of proof
at trial, the moving party is not required to support its motion with affidavits or other similar
materials negating the opponent’s claim. Id. at 323, 325; Green v. Whiteco Indus., Inc., 17 F.3d 199,
201 n.3 (7th Cir. 1994); Fitzpatrick v. Catholic Bishop of Chi., 916 F.2d 1254, 1256 (7th Cir. 1990).
However, the moving party, if it chooses, may support its motion for summary judgment with
affidavits or other materials, and, if the moving party has “produced sufficient evidence to support
a conclusion that there are no genuine issues for trial,” then the burden shifts to the nonmoving party
to show that an issue of material fact exists. Becker v. Tenenbaum-Hill Assoc., 914 F.2d 107,
110-111 (7th Cir. 1990) (citations omitted); see also Hong v. Children’s Mem’l Hosp., 993 F.2d
1257, 1261 (7th Cir. 1993).
Once a properly supported motion for summary judgment is made, the non-moving party
cannot resist the motion and withstand summary judgment by merely resting on its pleadings. See
Fed. R. Civ. P. 56(e); Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994). Rule 56(e)
provides that “[i]f a party fails to properly support an assertion of fact or fails to properly address
another party’s assertion of fact as required by Rule 56(c), the court may . . . consider the fact
undisputed for purposes of the motion [or] grant summary judgment if the motion and supporting
materials – including the facts considered undisputed – show that the movant is entitled to it . . . .”
Fed. R. Civ. P. 56(e)(2), (3); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986).
Thus, to demonstrate a genuine issue of fact, the nonmoving party must “do more than simply show
that there is some metaphysical doubt as to the material facts,” but must “come forward with

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‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed. R. Civ. P. 56(e)) (emphasis in original).
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. See Liberty Lobby, 477 U.S. at 255; Srail v. Vill. of Lisle, 588 F.3d 940, 948 (7th Cir.
2009); NLFC, Inc. v. Devcom Mid-Am., Inc., 45 F.3d 231, 234 (7th Cir. 1995). A court’s role is not
to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth
of the matter, but instead to determine whether there is a genuine issue of triable fact. See Liberty
Lobby, 477 U.S. at 249-50.
III.

Material Facts
Northern District of Indiana Local Rule 56-1 requires the moving party to include with its

motion for summary judgment a “‘Statement of Material Facts’ that identifies the facts that the
moving party contends are not genuinely disputed.” N.D. Ind. L.R. 56-1(a). In response, the
opposing party is obligated to file a “‘Statement of Genuine Disputes’ that identifies the material
facts that the party contends are genuinely disputed.” N.D. Ind. L.R. 56-1(b)(2). In this case, as the
moving party, Defendant has submitted a Statement of Material Facts, along with appropriate
citations to supporting evidence. Plaintiff has not submitted a response brief, much less a Statement
of Genuine Disputes; therefore, the facts referred to below, as asserted by Defendant, are considered
to exist without controversy for the purposes of this Motion for Summary Judgment. See Waldridge
v. Am. Hoechst Corp., 24 F.3d 918, 922 (7th Cir. 1994) (noting that the Seventh Circuit has routinely
sustained “the entry of summary judgment when the non-movant has failed to submit a factual

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statement in the form called for by the pertinent rule and thereby conceded the movant’s version of
the facts”).
Plaintiff was employed as a correctional officer at the Westville Correctional Facility from
March 1, 2013, until she was dismissed on January 23, 2016. On November 5, 2015, Plaintiff filed
a complaint against another correctional officer alleging that Watson, the other officer, questioned
Plaintiff about Plaintiff’s sexual orientation, asking her whether she was a “part-time lesbian” and
whether she played the role of a female or male in her relationships. The Human Resources
Department (“HR”) investigated the allegations and was unable to substantiate them, but moved the
other officer to another work assignment. During the course of this investigation, Plaintiff told HR
that she and a male employee engaged in a consensual relationship in which he paid her for sexual
acts. HR then investigated the report, ultimately determining that the male employee’s behavior did
not violate the workplace harassment prevention policy because Plaintiff did not receive
employment-related benefits in exchange for the sexual acts, the behavior was consensual, and the
other employee was not her supervisor. It also determined that both employees exhibited conduct
that violated the professional standards required of them, and both Plaintiff and the male employee
were terminated from employment on January 22, 2016.
IV.

Analysis
The Local Rules provide that responses to motions for summary judgement must be filed

“within 28 days after the movant serves the motion,” N.D. Ind. L.R. 56-1(b), and “[t]he court may
rule on a motion summarily if an opposing party does not file a response before the deadline.” N.D.
Ind. L.R. 7-1(d)(4). The trial court’s interpretation and application of its Local Rules is subject to
great deference. Cichon v. Exelon Generation Co., 401 F.3d 803, 809-10 (7th Cir. 2005); Cuevas

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v. United States, 317 F.3d 751, 752 (7th Cir. 2003). In fact, a trial court has the authority to strictly
enforce its Local Rules, even if summary judgment results. Petty v. City of Chicago, 754 F.3d 416,
420 (7th Cir. 2014); Koszola v. Bd. of Educ., 385 F.3d 1104, 1108 (7th Cir. 2004); Waldridge, 24
F.3d at 921-22 (upholding the trial court’s strict enforcement of local rules on summary judgment).
In turn, Rule 56(e) states that “[w]hen a motion for summary judgment is properly made and
supported, an opposing party may not rely merely on allegations or denials in its own pleading.”
Fed. R. Civ. P. 56(e)(2). The Rule further states that summary judgment, if appropriate, should be
entered against a party who fails to respond as provided in the Rule. Id. Thus, summary judgment
is appropriate if the non-movant does not respond and the “motion demonstrates that there is no
genuine issue of material fact and that the movant is entitled to judgment as a matter of law.”
Johnson v. Gudmundsson, 35 F.3d 1104, 1112 (7th Cir.1994).
Defendant moves for summary judgment on Plaintiff’s claims of discrimination under Title
VII of the Civil Rights Act of 1964. Title VII prohibits discrimination “against any individual with
respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). On a motion
for summary judgment, a plaintiff may demonstrate a genuine issue for trial by demonstrating that
“the evidence would permit a reasonable factfinder to conclude that the plaintiff’s . . . sex . . . or
other proscribed factor caused the discharge or other adverse employment action. Evidence must be
considered as a whole, rather than asking whether any particular piece of evidence proves the case
by itself.” Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016); see also Chaib v. Geo
Grp., Inc., 819 F.3d 337, 341 (7th Cir. 2016). Accordingly, “the sole question that matters” is
“[w]hether a reasonable juror could conclude that” the plaintiff would not have suffered the adverse

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employment action if she had a different sex or age, “and everything else had remained the same.”
Ortiz, 834 F.3d at 764 (citing Achor v. Riverside Golf Club, 117 F.3d 339, 341 (7th Cir. 1997);
Troupe v. May Dep’t Stores Co., 20 F.3d 734 (7th Cir. 1994)). A plaintiff may also make a case for
going to trial under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973). See Johnson v. Advocate Health & Hosps. Corp., 892 F.3d 887, 894 (7th Cir.
2018). (“[T]he well-known and oft-used McDonnell Douglas framework for evaluating
discrimination remains an efficient way to organize, present, and assess evidence in discrimination
cases.”); Egonmwan v. Cook Cty. Sheriff’s Dep’t, 602 F.3d 845, 850 (7th Cir. 2010). Thus, at the
summary judgment stage in this case, the proper question before the Court is whether the evidence
would permit a reasonable factfinder to conclude that Plaintiff’s sex caused the adverse employment
action. Ortiz, 834 F.3d at 765. The burden is on the plaintiff to demonstrate that genuine issues exist
for trial. Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 897 (7th Cir. 2003).
A.

Time-Barred Claims

First, Defendants argue that some of Plaintiff’s claims are time-barred because they occurred
more than 300 days before she filed her EEOC charge. In order to bring a Title VII claim, “[a]
plaintiff must file a charge with the EEOC detailing the alleged discriminatory conduct within the
time allowed by statute, and the EEOC must issue a right-to-sue letter. In addition, claims brought
in judicial proceedings must be within the scope of the charges filed with the EEOC.” Conner v. Ill.
Dep’t of Nat. Res., 413 F.3d 675, 680 (7th Cir. 2005). For a Title VII plaintiff in Indiana, “the
applicable limitations period is 300 days” and “begins to run when ‘the alleged unlawful
employment practice occurred.’” Adams v. City of Indianapolis, 742 F.3d 720, 729–30 (7th Cir.
2014) (quoting 42 U.S.C. § 2000e–5(e)(1)). Plaintiff filed her initial EEOC charge for discrimination

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on January 25, 2016, so any instances of discrimination that occurred before March 31, 2015, are
therefore barred.
B.

Hostile Work Environment

Next, Defendants argue that Plaintiff was not subjected to a hostile work environment. “Title
VII prohibits the creation of a hostile work environment. . . . In order to prevail on such a claim, a
plaintiff must show that the work environment was so pervaded by discrimination that the terms and
conditions of employment were altered.” Chaib v. Indiana, 744 F.3d 974, 985 (7th Cir. 2014)
(internal quotation marks and citations omitted). To make this determination on summary judgment,
courts consider “the surrounding circumstances, including whether the discriminatory conduct was
frequent or severe; whether the conduct was physically threatening or humiliating; and whether the
conduct unreasonably interfered with her work performance. . . . Title VII is not a general code of
workplace civility, nor does it mandate ‘admirable behavior’ from employers.” McKenzie v.
Milwaukee Cnty., 381 F.3d 619, 624 (7th Cir. 2004) (citing Haugerud v. Amery Sch. Dist., 259 F.3d
678, 693 (7th Cir. 2001). Therefore, a claim for a hostile work environment “requires proof of four
elements: (1) the plaintiff’s workplace was both subjectively and objectively offensive; (2) the
plaintiff’s sex was the cause of the harassment; (3) the harassment was severe or pervasive; and (4)
there is a basis for employer liability.” Lord v. High Voltage Software, Inc., 839 F.3d 556, 561 (7th
Cir. 2016).
In this case, Plaintiff filed a complaint about statements allegedly made by Watson that
related to Plaintiff’s sex or sexual orientation. After she made the complaint, HR initiated an
investigation into the allegations, and, although the allegations could not be substantiated, they
moved Watson to another work assignment so she would not work with Plaintiff. These statements

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from a single coworker, as pled in Plaintiff’s Complaint, are insufficient to create a hostile work
environment. The Supreme Court has emphasized that “in order to be actionable under the statute,
a[n] . . . objectionable environment must be both objectively and subjectively offensive, one that a
reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be
so,” and therefore “directed courts to determine whether an environment is sufficiently hostile or
abusive by ‘looking at all the circumstances,’ including the ‘frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s work performance.’” Faragher
v. City of Boca Raton, 524 U.S. 775, 787-88 (1998) (quoting Harris v. Forlkift Sys., Inc., 510 U.S.
17, 21-22 (1993)). To that end, “simple teasing, offhand comments, and isolated incidents (unless
extremely serious) will not amount to discriminatory changes in the terms and conditions of
employment.” Id. at 788 (quoting Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 82
(1998)) (quotation marks omitted). Instead, “conduct must be extreme to amount to a change in the
terms and conditions of employment.” Id; see also McKenzie, 381 F.3d at 624 (“To establish a claim
of hostile work environment, [a plaintiff] must show that she was subjected to harassment so severe
or pervasive that it altered the conditions of her employment” and “ demonstrate that her workplace
was both subjectively and objectively hostile.”) (citations omitted).
The allegations that Plaintiff was repeatedly approached by a supervisor and offered money
in exchange for sexual acts are more severe and pervasive than the comments by Watson, but
Defendants have produced facts demonstrating that as soon as they became aware of both
allegations, HR investigated the behaviors, and Plaintiff has not put forth any evidence or even
argument that the response was inadequate. An “employer can avoid liability for its employees’

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harassment if it takes prompt and appropriate corrective action reasonably likely to prevent the
harassment from recurring.” Cerros v. Steel Techs., Inc., 398 F.3d 944, 954 (7th Cir. 2005) (quoting
Williams v. Waste Mgmt. of Ill., 361 F.3d 1021, 1029 (7th Cir.2004). The Seventh Circuit Court of
Appeals “recognize[s] prompt investigation of the alleged misconduct as a hallmark of reasonable
corrective action.” Id. (listing cases). In this case, corrective action was immediately taken after
Plaintiff complained about the comment based on her sexual orientation, even though it was
unsubstantiated, and an investigation into the requested exchange of sexual acts for money was
opened as soon as HR became aware of the allegation.
The comments by Watson do not rise to the level of creating a hostile work environment, and
Plaintiff has not put forth any evidence to counter HR’s conclusions that the sexual relationship with
the coworker was consensual and that the coworker was not Plaintiff’s supervisor. Nor has she
argued that her employer’s response upon becoming aware of her complaints was inadequate.
Accordingly, Defendants are entitled to judgment on Plaintiff’s claims of hostile work environment.
C.

Sex Discrimination

Plaintiff also alleges discrimination on the basis of sex and sexual orientation. In order to
make a successful claim for discrimination pursuant to the burden-shifting McDonnell Douglas
framework, a Title VII plaintiff must first “establish[] that (1) [s]he is a member of a protected class;
(2) [s]he was meeting [her] employer’s legitimate performance expectations; (3) [s]he was subjected
to an adverse employment action; and (4) similarly situated employees outside of [her] protected
class were treated more favorably by the employer.” Reed v. Freedom Mortg. Corp., 869 F.3d 543,
547-48 (7th Cir. 2017) (citing McDonnell Douglas, 411 U.S. 792 ) (other citations omitted); Once
the plaintiff has established this prima facie case, it “creates a presumption of discrimination, and

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the ‘burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason’
for its employment decision.” McKinney v. Office of Sheriff of Whitley Cty., 866 F.3d 803, 807 (7th
Cir. 2017) (quoting McDonnell Douglas, 411 U.S. at 802). Then “the burden shifts back to the
plaintiff, who must present evidence that the stated reason is a ‘pretext,’ which in turn permits an
inference of unlawful discrimination.” Id., quoting Coleman v. Donahoe, 667 F.3d 835, 845 (7th Cir.
2012).
In its summary judgment analysis, the Court must consider whether the adverse employment
action was a result of Plaintiff’s sex or other protected characteristic, so the relevant question is
whether she would have been treated differently if she had been a man. Ortiz, 834 F.3d at 764-65.
There is no dispute in this case that Plaintiff belongs to a protected class by virtue of her gender and
that her employment was terminated, an adverse employment action. However, Defendants assert
that Plaintiff was not meeting legitimate performance expectations. Plaintiff and another worker
engaged in sexual activity for which the other employee gave Plaintiff money. During the
investigation that HR performed, it determined that Plaintiff was not receiving any
employment-related benefits for the sexual activity, that the conduct was not unwelcome, and that
the other party was not her supervisor, and both parties were then terminated form their employment.
Defendants argue that Plaintiff cannot show satisfactory job performance, and both Plaintiff and the
male accused of the same conduct were terminated, so she was treated in the same manner as a
similarly-situated employee outside of her protected class. Because Plaintiff has not put forth any
evidence to demonstrate that she was discriminated against on the basis of her gender or sexual
orientation, she cannot succeed on her claim and Defendants are entitled to judgment.

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Defendants argue that they are also entitled to judgment on Plaintiff’s claim for retaliation.
“To establish retaliation under the direct method, a plaintiff must present evidence, direct or
circumstantial, showing that: (1) [s]he engaged in a statutorily protected activity; (2) [s]he suffered
a materially adverse action; and (3) a causal connection exists between the two.” Harper v. C.R.
England, Inc., 687 F.3d 297, 306 (7th Cir. 2012) (citing Burks v. Wisc. Dep’t of Transp., 464 F.3d
744, 758 (7th Cir.2006)). The causal connection is demonstrated “by showing that the defendant
‘would not have taken the adverse ... action but for [her] protected activity,’” and “[i]f a plaintiff can
assemble from various scraps of circumstantial evidence enough to allow the trier of fact to conclude
that it is more likely than not that discrimination lay behind the adverse action, then summary
judgment for the defendant is not appropriate.” Baines v. Walgreen Co., 863 F.3d 656, 661-62 (7th
Cir. 2017) (quoting Greengrass v. Int’l Monetary Sys. Ltd., 776 F.3d 481, 486 (7th Cir. 2015);
Morgan v. SVT, LLC, 724 F.3d 990, 996 (7th Cir. 2013)).
Plaintiff alleges that she engaged in statutorily protected activity when she complained about
the statements made to her by Watson and that Defendants retaliated against her by opening a
second investigation into the sexual relationship between her and the coworker and ultimately firing
her. Defendants assert that Plaintiff told HR about the relationship during the initial investigation,
and that they were then obligated to investigate it, as it violated the ethical requirements of the
position. Even assuming that the second investigation was a materially adverse employment action,
since Plaintiff has not rebutted Defendants’ assertions regarding how they learned of her sexual
relationship with her coworker and why they opened the second investigation, she cannot
demonstrate that second investigation was initiated because of the statutorily protected activity.

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For the foregoing reasons, Defendants are entitled to summary judgment on all of Plaintiff’s
remaining claims against them.
V.

Conclusion
For the foregoing reasons, the Court hereby GRANTS Defendants’ Motion for Summary

Judgment [DE 27] and DIRECTS the Clerk of Court to enter judgment in favor of Defendants State
of Indiana and Indiana Department of Corrections and against Plaintiff Barbara Major as to all the
claims in her Complaint.
So ORDERED this 7th day of November, 2018.
s/ John E. Martin
MAGISTRATE JUDGE JOHN E. MARTIN
UNITED STATES DISTRICT COURT
cc:

All counsel of record

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