Moore v. Calumet Township of Lake County et al

Filing 54

OPINION AND ORDER GRANTING in part and DENYING in part 44 MOTION for Summary Judgment filed by Calumet Township of Lake County, Kimberly K Robinson. Granting summary judgment in favor of the Defendants on the Plaintiffs Fourteenth Amendment claim in Count Three only. The Plaintiffs First Amendment claims in Counts One and Two remain pending against both Defendants. Signed by Judge Theresa L Springmann on 1/21/2022. (mrm)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
MARSHA MOORE,
Plaintiff,
v.

CAUSE NO.: 2:18-CV-106-TLS

CALUMET TOWNSHIP OF LAKE
COUNTY and KIMBERLY K. ROBINSON,
individually and in her official capacity as
Calumet Township Trustee,
Defendants.
OPINION AND ORDER
This matter is before the Court on the Defendant’s Motion for Summary Judgment [ECF
No. 44], which is fully briefed and ripe for ruling. For the reasons set forth below, the Court
grants in part and denies in part the motion.
PROCEDURAL BACKGROUND
The Plaintiff Marsha Moore’s Complaint [ECF No. 1] alleges violations of the United
States Constitution arising out of the termination of her employment with the Calumet Township
Trustee’s Office on December 29, 2016. The Plaintiff contends that her employment was
terminated because she supported Defendant Kimberly K. Robinson’s opponent, incumbent
Mary Elgin, in the 2014 Calumet Township Trustee election. Bringing her claims under 42
U.S.C. § 1983, the Plaintiff alleges a violation of her First Amendment right of political
association (Count One), retaliation for exercise of her First Amendment right of free political
speech (Count Two), and a violation of procedural due process under the Fourteenth Amendment
with respect to a property right in her job (Count Three).

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SUMMARY JUDGMENT STANDARD
Summary judgment is warranted when “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). The movant may discharge this burden by “either: (1) showing that there is an
absence of evidence supporting an essential element of the non-moving party’s claim; or (2)
presenting affirmative evidence that negates an essential element of the non-moving party’s
claim.” Hummel v. St. Joseph Cnty. Bd. of Comm’rs, 817 F.3d 1010, 1016 (7th Cir. 2016)
(citation omitted). In response, the non-movant “must make a sufficient showing on every
element of [her] case on which [she] bears the burden of proof; if [she] fails to do so, there is no
issue for trial.” Yeatts v. Zimmer Biomet Holdings, Inc., 940 F.3d 354, 358 (7th Cir. 2019) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
In ruling on a motion for summary judgment, a court must construe all facts and draw all
reasonable inferences in the light most favorable to the nonmoving party. Id. (citation omitted).
A court’s role “is not to sift through the evidence, pondering the nuances and inconsistencies,
and decide whom to believe. The court has one task and one task only: to decide, based on the
evidence of record, whether there is any material dispute of fact that requires a trial.” Waldridge
v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994) (citations omitted). Facts that are
outcome determinative under the applicable law are material for summary judgment purposes.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
MATERIAL FACTS
A.

Trustee Robinson and the Calumet Township Budget
Defendant Kimberly K. Robinson opposed the incumbent trustee Mary Elgin in the

November 2014 Calumet Township Trustee Election, won, and took office in January 2015.

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Compl. ¶ 7, ECF No. 1. Robinson campaigned, in part, on bringing Calumet Township back
under budget. Def. Ex. A, 5:21–6:8, 6:19–22, ECF No. 45-1.
Upon taking office, Robinson retained a CPA from Cender & Company, LLC (Cender) to
develop a four-year plan involving yearly budget cuts to bring the Township’s budget in line
with state guidelines. Id. at 6:25–7:4; see also Def. Ex. B (Feb. 20, 2017 Cender Mem.), ECF
No. 45-2. Cender recommended an immediate reduction in personnel, and the number of
Township employees was reduced from 74 to 60 within the first 90 days of Robinson’s
administration. Def. Ex. B, p. 2. Robinson received monthly reports from Cender in the first
year, had monthly meetings with Cender and the Township finance department, and followed
Cender’s advice. Id. at 7:16–8:6. In the fall of 2015, Cender recommended eliminating five
employees for the 2016 budget year and then recommended additional reorganization to further
eliminate ten employees by early 2016. Def. Ex. B, p. 2. Eleven employees were terminated on
December 31, 2015, seven of whom were not replaced. See Def. Ex. E (2014–2018
Termination/Separation List), ECF No. 45-5.
In a November 28, 2016 email to Chief Deputy Sherita Smith about employee
assignments, Steve Dalton from Cender wrote that the number of employees paid from the Civil
General Fund—thirteen employees—should be decreased. Pl. Ex. 4, ECF No. 49-4. Dalton
recommended that the amount paid for salaries from the Civil General Fund be decreased from
$600,000 to $480,000. Id. Dalton wrote, “If we consider an employee to be roughly $30,000 . . .
I’d like to see this fund decreased by 4 employees . . . either layoffs or moving to Recreation
Fund.” Id. Dalton also expressed confusion about which employees were being paid from the
Recreation and Community Service Funds. Id.

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On December 8, 2016, one employee was terminated, and the position was not filled.
Def. Ex. E. However, Robyn Johnson was hired on December 8, 2016, in a position that had
been vacant since a resignation on July 17, 2015. Id. On December 29, 2016, four employees,
including the Plaintiff, were terminated; none of the four positions were subsequently filled. Id.
In February 2017, the Township had 41 employees, and Cender recommended reducing the
number of employees to 37 by the end of 2017. Def. Ex. B, p. 2.
Cender’s recommendations as to the number of positions that needed to be cut correlated
with a specific reduction to the budget in dollars. Def. Ex. A, 50; see also Def. Ex. B. Robinson
made the employment decisions and then informed Cender. Def. Ex. A, 50. The reduction in the
number of employees occurred through the elimination of positions, reassignment, consolidation
of positions, or not filling a position following a retirement or resignation. Def. Ex. A, 34:22–
35:1, 37:6–13; Def. Ex. E. However, in some instances, new employees were hired to fill
positions following a retirement or resignation. Def. Ex. A, 37:6–9.
Robinson hired seven individuals into the administration whom she considered to be her
supporters. Pl. Ex. 1, 12:6–15, ECF No. 49-1.1 Robinson considered Shareese Ward to be a key
person in her administration. Id. at 16:3–8. Robinson hired Diane Kendrick, who had worked on
Robinson’s campaign, and Denise Kendrick, a Robinson supporter. Id. at 35:6–18. Robinson
failed to include the Kendricks on a list of seventeen new employees. Id. at 35:20–25.
B.

The Plaintiff’s Employment
The Plaintiff began working in the Calumet Township Trustee’s Office in March 1990.

Def. Ex. F, 11:7–11, ECF No. 45-6. She worked in different capacities before reaching the
position of Assistant Deputy of the General Assistance Division during Elgin’s administration
1

The Plaintiff’s brief identifies these seven individuals by name, but the evidence submitted lists only
Dayna Bennett and David Bullock. See Pl. Br. 2 (citing Pl. Ex. 1, 12:7–10).

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and held that position for seven or eight years. Id. at 17:1–19:5, 20:10–23. Cynthia HolmanUpshaw, the Deputy of the General Assistance Division, retired on December 31, 2015. Id. at
18:3–5, 19:15–21, 21:5–25; Def. Ex. E. The Deputy position was not filled. Def. Ex. E.
In July 2016, Robinson reorganized the General Assistance Division, replacing the
Deputy and Assistant Deputy positions with three coequal Managers, each with a team. Def. Ex.
A, 18:10–17. Robinson believed it would be beneficial to always have a manager on staff to
cover vacations and time off. Id. at 18:12–17. The restructuring was not contemplated in the
Cender reports “[b]ecause they weren’t there to do day-to-day operations. We worked it out. As
long as we did not change the bottom line of the budget that was submitted and passed by our
board, that was how we decided to do it.” Id. at 18:18–19:3.
Robinson filled the three new Managers positions with the Plaintiff, James Hudson, and
Shareese Ward. Id. at 18:18–22. The Managers had no direct supervisor, answering to Chief
Deputy Smith. Id. at 72:2–7; Def. Ex. F, 27:14–28:1. Hudson and Ward had previously worked
under the Plaintiff as Supervisors, which led the Plaintiff to believe that she was demoted when
they became coequals. Def. Ex. F, 26:4–22. As a Manager, the Plaintiff’s responsibilities and pay
remained the same as when she was Assistant Deputy. Id. at 26:23–27:3. However, Hudson and
Ward no longer consulted with the Plaintiff on how to proceed with a problem. Id. at 27:3–9.
Hudson was hired on September 24, 2001. Pl. Ex. 5, ECF No. 49-5. Hudson supported
Robinson. Pl. Ex. 1, 17:1–7.2 Robinson hired Ward on January 20, 2015, as a Supervisor in the
Assistance Division. Pl. Ex. 5. Robinson wanted to place Ward in a management position but
was constrained by finances. Pl. Ex. 1, 27:1–5. When Robinson promoted Hudson and Ward

2

Although the cited evidence is ambiguous, the Defendants do not dispute that Hudson was a Robinson
supporter.

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from Supervisor to Manager in July 2016, Hudson’s salary increased from $34,500 to $36,000
and Ward’s salary increased from $30,000 to $36,000. Pl. Ex. 5.
On December 29, 2016, the Plaintiff’s employment was terminated, reducing the number
of Managers from three to two; she was not replaced. Def. Ex. A, 39:2–8; Def. Ex. E. Robinson
testified that the reduction in Managers from three to two was due to financial constraints. Pl. Ex.
1, 39:7–12. Chief Deputy Smith told the Plaintiff that five jobs had to be eliminated to reduce the
budget and that she was one of them. Pl. Ex. 3, 33:7–10, ECF No. 49-3. The Plaintiff had more
seniority than Hudson and Ward. Pl. Ex. 1, 40:2–4. The Plaintiff testified that Robinson did not
speak with her in advance about terminating her employment. Def. Ex. F, 44:11–16. Robinson
does not agree that people with less seniority should be laid off first. Def. Ex. A, 39:13–16.
The Plaintiff did not have an employment contract. Def. Ex. F, 92:14–19. The Plaintiff
was not informed of her right to appeal her termination nor was she given any termination
documentation other than COBRA and unemployment information. Id. at 115:3–11.
The Calumet Township Trustee Office Employee Handbook, revised March 23, 2015,
provides, in relevant part, that employment can be terminated by “voluntary resignation,
discharge, or retirement; the expiration of an employment contract; or a permanent reduction-inforce (RIF).” Def. Ex. G, p. 22, ECF No. 45-7. “[T]he Township reserves the right to terminate
employment at any time and for any reason.” Id. “Upon termination of employment, the
employee shall receive a letter notifying him or her of the effective date and reasons for the
termination.” Id. at 24 ¶ (6). “A terminated employee may respond to the notice of termination in
writing and have such response placed in his or her personnel file.” Id. at 24 ¶ (7). The
Handbook also provides: “Termination and discharge procedures are only guidelines and do not
create a legal contract between the Township and its employees. . . . In addition, specified

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grounds for termination are not all-inclusive since the Township reserves the right to terminate
employment for any reason.” Id. at 27 ¶ 23. Under the “Dispute Resolution (Grievance)
Procedure,” an “appropriate dispute” includes “[a] belief that Township policies, practices, rules,
regulations, or procedures have been applied inconsistently to an employee.” Pl. Ex. 2, p. 82
¶ (1)(a), ECF No. 49-2.
C.

The Plaintiff’s Involvement in the 2014 Elgin Campaign
During the 2014 Calumet Township Trustee race, the Plaintiff supported and campaigned

for Mary Elgin because Elgin was her boss. Def. Ex. F, 37:15–38:17. The Plaintiff placed
literature on cars, made phone calls, mailed literature, and participated in a rally on the corner of
Grant Street and 25th Avenue where she and other participants wore t-shirts and held signs that
read “Vote for Mary Elgin.” Id. at 37:17–38:1, 39:12–14. The Plaintiff testified that, during the
rally, Robinson was turning the corner in her car in front of St. Timothy Church onto 25th
Avenue and saw the Plaintiff wearing the Elgin t-shirt and holding the Elgin sign. Id. at 39:12–
17, 41:2–14. The Plaintiff testified that Robinson looked at her but did not speak to her or
anyone in the Plaintiff’s group. Id. at 41:13–16. The Plaintiff is certain that Robinson knew it
was her at the rally. Pl. Ex. 3, 59:10–25.
The Plaintiff also testified that she crossed paths with Robinson several times coming and
going from lunch at the Ponderosa restaurant, and, at that time, the Plaintiff had an Elgin bumper
sticker on her car. Def. Ex. F, 39:7–12. Robinson knows what kind of car the Plaintiff drives.
Def. Ex. A, 54:24–25; Pl. Ex. 3, 59:17–19. The Plaintiff testified that Robinson knew that the
Plaintiff had the Elgin bumper sticker and that Robinson had seen her several times going to and
from her car with the sticker on the car. Pl. Ex. 3, 59:14–16. At that time, the Plaintiff and

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Robinson would have recognized each other and knew each other by name. Def. Ex. F, 40:4–15.
At the Ponderosa, the Plaintiff was not wearing any items supporting Elgin. Id. at 40:16–24.
Robinson testified that she does not know whom the Plaintiff supported in the election.
Def. Ex. A, 54:2–5. Robinson also testified that she does not recall seeing the Plaintiff at the
Ponderosa restaurant. Id. at 55:1–2.
ANALYSIS
A.

First Amendment Political Discrimination and Political Retaliation Claims
The Plaintiff alleges that her First Amendment right to political association was violated

when Robinson terminated her employment because the Plaintiff supported Robinson’s
opponent, Mary Elgin, in the 2014 election for Calumet Township Trustee. The First
Amendment “protects political association as well as political expression.” Elrod v. Burns, 427
U.S. 347, 357 (1976). Thus, it “generally prohibits government officials from dismissing or
demoting an employee because of the employee’s engagement in constitutionally protected
political activity.” Heffernan v. City of Paterson, 578 U.S. 266, 268 (2016) (citing Elrod, 427
U.S. 347; Branti v. Finkel, 445 U.S. 507 (1980)); see Bless v. Cook Cnty. Sheriff’s Off., 9 F.4th
565, 571 (7th Cir. 2021); Yahnke v. Kane County, 823 F.3d 1066, 1070 (7th Cir. 2016). There are
“certain exceptions for policymaking positions and for employees having a confidential
relationship with a superior.” Hall v. Babb, 389 F.3d 758, 762 (7th Cir. 2004) (citing Rutan v.
Republican Party of Ill., 497 U.S. 62, 65, 71 n.5 (1990); Elrod, 427 U.S. at 367, 375)).
“To establish a prima facie claim of First Amendment political discrimination, a plaintiff
must show: (1) that the plaintiff’s conduct is constitutionally protected; and (2) that the protected
conduct was a motivating factor in the employer’s actions.” Daza v. Indiana, 941 F.3d 303, 308
(7th Cir. 2019) (citing Bisluk v. Hamer, 800 F.3d 928, 933 (7th Cir. 2015)). To establish a prima

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facie claim of political retaliation under the First Amendment, a “plaintiff must additionally
show a deprivation likely to deter free speech.” Id. (citing Yahnke, 823 F.3d at 1070); see also
Bless, 9 F.4th at 571. “To show that protected conduct was a motivating factor in the employer’s
action, a plaintiff must demonstrate a causal connection between the conduct and the employer’s
action.” Daza, 941 F.3d at 309 (citing Graber v. Clarke, 763 F.3d 888, 899 (7th Cir. 2014)).
If a plaintiff establishes that her political conduct was a motivating factor in the
defendant’s action, the burden shifts to the defendant “to show that it would have taken the same
action even in the absence of the protected conduct.” Yahnke, 823 F.3d at 1070–71; see also
Bless, 9 F.4th at 573. The burden then shifts back to the plaintiff to demonstrate that the
defendant’s proffered reason is pretextual. See Yahnke, 823 F.3d at 1071; Bless, 9 F.4th at 573.
“On summary judgment, of course, the plaintiff’s burden is simply to demonstrate that there is a
genuine issue of material fact on the question of causation.” Yahnke, 823 F.3d at 1071.
As to the prima facie case, the Defendants do not dispute that the Plaintiff engaged in
constitutionally protected political conduct or that the Plaintiff suffered a deprivation when her
employment was terminated. The Defendants also do not contend that the Plaintiff was in a
policymaking position and, therefore, do not dispute that the First Amendment would protect her
from being fired for political reasons. Thus, the only issue before the Court is causation. The
Defendants argue that the Plaintiff has failed to demonstrate that her political conduct was at
least a motivating factor in her termination.
The first question is whether the Plaintiff has offered sufficient evidence that Robinson
was aware of the Plaintiff’s political support for Robinson’s opponent, Mary Elgin, in the 2014
election. See Daza, 941 F.3d at 309 (“As a threshold matter, the plaintiff must show that the
defendant was aware of the protected conduct.” (citing Hall, 389 F.3d at 762)). Robinson

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testified that she did not know whom the Plaintiff supported in the 2014 election and that she did
not recall seeing the Plaintiff at the Ponderosa restaurant. However, the Plaintiff testified that
Robinson drove past her at the rally for Mary Elgin on Grant Street, that Robinson looked
directly at the Plaintiff, and that the Plaintiff was wearing a Mary Elgin t-shirt and holding a
Mary Elgin sign. The Plaintiff also testified that, during this time, she had a Mary Elgin bumper
sticker on her car, that Robinson knew what kind of car the Plaintiff drives, and that Robinson
and the Plaintiff saw each other coming and going from the Ponderosa restaurant. Based on this
evidence, a reasonable jury could conclude that Robinson knew the Plaintiff supported Elgin. See
Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003) (“On summary judgment a court may not
make credibility determinations, weigh the evidence, or decide which inferences to draw from
the facts; these are jobs for a factfinder.”). Thus, whether Robinson knew that the Plaintiff
supported Robinson’s political opponent in the 2014 election is a disputed fact for trial.
Nevertheless, to survive summary judgment, the Plaintiff must also provide “evidence
sufficient to create a genuine issue of material fact on the question of whether political
motivation was a substantial factor in the decision to terminate her employment.” Zerante v.
DeLuca, 555 F.3d 582, 585–86 (7th Cir. 2009) (citing Hall, 389 F.3d at 762). The Plaintiff must
offer evidence of a “causal connection . . . show[ing] ‘that the protected activity and the adverse
action are not wholly unrelated.’” Bless, 9 F.4th at 572 (quoting Kidwell, 679 F.3d at 966). “[I]t
is not enough to show only that the plaintiff was of a different political persuasion than the
decision makers or the successful applicant.” Hall, 389 F.3d at 762 (citing Nelms v. Modisett,
153 F.3d 815, 818 (7th Cir. 1998)); see Nekolny v. Painter, 653 F.2d 1164, 1168 (7th Cir. 1981)
(explaining that a plaintiff’s burden is “not insignificant” and that “[a] disgruntled employee
fired for legitimate reasons would not be able to satisfy his burden merely by showing that he

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carried the political card of the opposition party or that he favored the defendant’s opponents in
the election”). However, “[c]ircumstantial evidence, from which the trier of fact can infer
retaliation, can satisfy a plaintiff’s burden.” Bless, 9 F.4th at 572 (citation omitted). Here, the
circumstantial evidence offered by the Plaintiff meets her burden on summary judgment.
First, of the three coequal Managers, Robinson selected the Plaintiff, who supported
Robinson’s opponent in the election, for termination during the RIF over Hudson and Ward, who
are Robinson supporters.
Second, the Plaintiff had the most seniority. She had worked for the Township since
1994. Hudson was hired in 2001, and Ward was hired in January 2015 soon after Robinson took
office. In addition, the Plaintiff had been the Assistant Deputy in the General Assistance Division
for seven to eight years at the time the Division was reorganized in July 2016, with both Hudson
and Ward reporting to her as Supervisors. Robinson was aware of the Plaintiff’s seniority and
experience. Although evidence of superior qualifications of the terminated employee is not, by
itself, evidence of discriminatory motive, it can be a factor in a plaintiff’s circumstantial case,
supporting “an inference that the defendants made their [employment] decision based on political
motivation rather than any other factor, permissible or forbidden.” See Hall, 389 F.3d at 763–64
(citing Nelms, 153 F.3d at 818 n.4; Garrett v. Barnes, 961 F.2d 629, 633 (7th Cir. 1992));
Schmoeller v. Village of Island Lake, 324 F. Supp. 3d 983, 990–91 (N.D. Ill. 2018).
Absent from the Defendants’ briefs is any explanation why the Plaintiff was chosen for
termination notwithstanding her seniority and experience managing the Assistance Division. Cf.
Nelms, 153 F.3d at 820 (finding that the plaintiff was chosen for termination because of
departmental reorganization and a reduction in the role of field investigators and that the
employee retained over the plaintiff had seniority and more exemplary work habits). The

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Defendants do not identify any issues with the Plaintiff’s performance. Rather, the Defendants
assert that the Plaintiff was terminated as part of the RIF related to the Township’s financial
concerns, and Robinson testified that this resulted in the reduction of the number of Managers
from three to two. While this financial reason explains the need to eliminate “an employee” or,
perhaps, even one of the Managers, it does not explain why the Plaintiff was chosen from the
three coequal Managers. Nor do the Defendants offer any specific financial basis for selecting
the Plaintiff over Hudson or Ward, such as salary.
In addition, the timing of the Plaintiff’s termination in relation to the restructuring of the
General Assistance Division constitutes additional circumstantial evidence. See Bless, 9 F.4th at
572 (citing Kidwell, 679 F.3d at 966 (“Circumstantial evidence may include suspicious timing . .
. .”)). The Defendants are correct that the Plaintiff’s protected political activity occurred in the
fall of 2014 and that the Plaintiff worked for Robinson for approximately nineteen months as
Assistant Deputy of the General Assistance Division until July 2016 and then for another five
months as a Manager before her termination on December 29, 2016. However, whether the
amount of time lapsed is suspicious “depends on context.” Loudermilk v. Best Pallet Co., 636
F.3d 312, 315 (7th Cir. 2011); see Lalvani v. Cook County, 269 F.3d 785, 791 (7th Cir. 2001)
(“We acknowledge that temporal proximity is only evidence of causation, not a separate element
of the prima facie case, and thus there will be cases in which a plaintiff can demonstrate
causation despite a substantial time lag.”).
When Robinson took office in January 2015, the management of the General Assistance
Division consisted of a Deputy and an Assistant Deputy, with the Plaintiff having served as
Assistant Deputy for several years. In January 2015, Robinson hired Ward, a supporter, as a
Supervisor in the Division. Robinson testified that she wanted to place Ward in a management

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position but was stymied by the budget concerns of the Trustee’s Office. Those budget concerns
were being addressed largely through a reduction in the number of employees. On December 29,
2015, the Deputy retired. In July 2016, Robinson restructured the General Assistance Division,
replacing the Deputy and Assistant Deputy positions with three coequal Managers. This decision
was made solely by Robinson and her advisors and was not directed by Cender. Robinson
wanted multiple managers so that someone would always be available if others were out sick or
on vacation. Robinson promoted Hudson and Ward, her supporters, to be Managers with the
Plaintiff.
It was during the next round of terminations recommended by Cender on November 28,
2016, that the Plaintiff’s employment was terminated on December 29, 2016, five months after
the reorganization that promoted Ward and Hudson. The Defendants characterize this decision as
eliminating the Plaintiff’s job with no replacement, yet the Defendants do not acknowledge the
recent creation of the two coequal Manager positions or Ward’s promotion. Of the newly
established three coequal Managers, the Plaintiff, who was the employee with the most seniority
and the only non-Robinson supporter, was chosen for termination.
Although the Defendants are correct that the Plaintiff has not offered direct evidence of
statements of political motivation, see, e.g., Yahnke, 823 F.3d at 1069; Nekolny, 653 F.2d at
1168; Allen v. Elgin, No. 2:04-CV-1, 2006 WL 3314557, at *8–9 (N.D. Ind. Nov. 9, 2006), this
circumstantial evidence taken together satisfies the Plaintiff’s prima facie burden of showing that
her political association is causally linked to Robinson’s decision to terminate her employment.
The burden then shifts to the Defendants to show a non-political reason for the Plaintiff’s
termination. The Defendants cite generally the RIF throughout the Trustee’s Office driven by the
need to reduce expenditures on employee salaries to meet state mandated budget requirements.

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See Bellaver v. Quanex Corp., 200 F.3d 485, 494 (7th Cir. 2000) (“A RIF takes place when an
employer decides to eliminate certain positions from its workforce.”). In support, the Defendants
offer evidence that the reduction in the number of employees to meet specific financial goals was
set by Cender. However, the employment decisions themselves were left to Robinson. The
Defendants have offered no explanation why a Manager of the General Assistance Division
position was selected or why the Plaintiff, of the three Managers, was selected.
Considering the Defendants’ RIF explanation, the burden shifts back to the Plaintiff “to
present evidence ‘demonstrate[ing] a material issue of fact as to pretext’” for this proffered
rationale. Bless, 9 F.4th at 573 (quoting Hudson v. Chi. Transit Auth., 375 F.3d 552, 561 (7th
Cir. 2004)). To meet her burden on pretext, the Plaintiff “must show that either (1) it is more
likely that a discriminatory reason motivated the employer than the proffered non-discriminatory
reason or (2) that an employer’s explanation is not credible.” Id. (same). That a defendant’s
proffered justification is unworthy of credence can be proven “by ‘providing evidence tending to
prove that the employer’s proffered reasons are factually baseless, were not the actual motivation
for the discharge in question, or were insufficient to motivate’ the employment action.” Yahnke,
823 F.3d at 1071 (quoting Carter v. Chi. State Univ., 778 F.3d 651, 659 (7th Cir. 2015)). Here,
the Plaintiff has met this burden.
The Plaintiff acknowledges that Calumet Township had financial difficulties, that
Robinson campaigned on bringing the Township under budget, and that Robinson hired Cender
to assist in this goal. However, while Cender set the budget reduction goals, Robinson made the
specific personnel decisions. In this context, Robinson was trying to figure out how to move
Ward, her supporter, into a management position, which she accomplished through the creation
of the three Manager positions in the General Assistance Division in July 2016. Cender did not

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instruct Robinson to hire or promote Ward and did not instruct Robinson to create the three
Manager positions in the General Assistance Division. Robinson testified that she created the
three Manager positions so that there would always be someone to cover vacations and sick
leave of the others; there is no testimony that this restructuring was for a financial reason as part
of the RIF. On November 28, 2016, Cender recommended that the salaries paid from the Civil
General Fund be reduced by $120,000, which could be accomplished by eliminating four salaries
at an average salary of $30,000. On December 29, 2016, four employees were terminated,
including the Plaintiff, none of whom were replaced. While Cender made the November 2016
recommendation, Robinson selected the employees for termination, and Robinson selected the
Plaintiff over Hudson and Ward. Again, the Plaintiff had the most seniority, had been the
Assistant Deputy in the General Assistance Division for approximately nine years, and had
previously supervised both Hudson and Ward.
The Plaintiff argues that Robinson’s actions point to Robinson’s desire to lay off the
Plaintiff in order to replace her with Ward, a supporter, which Robinson knew would have been
illegal. “An employer’s reasons for firing an employee can be foolish or trivial or even baseless,
as long as they are honestly believed.” Lord v. High Voltage Software, Inc., 839 F.3d 556, 564
(7th Cir. 2016) (internal quotation marks omitted)). Indeed, “[a] city employee may be fired for a
good reason or for no reason at all, as long as she was not fired because of her constitutionally
protected activities.” Zerante, 555 F.3d at 586 (citing Garrett, 961 F.2d at 633). Here, the
Defendants have offered no explanation for why Robinson chose the Plaintiff over Hudson and
Ward for the RIF. The Defendants do not address Robinson’s selection of the Plaintiff over
Hudson and Ward, the Plaintiff’s seniority, Robinson’s desire to promote Ward, or that Robinson
hired other supporters, such as the Kendricks. Again, the Defendants do not identify any

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performance issues with the Plaintiff’s work or any financial reason for choosing the Plaintiff
over Hudson and Ward. Cf. id. at 584 (finding no causation where the plaintiff was terminated by
the new mayor because her department was underperforming, the new administration wanted to
show the voters that they were serious about creating efficiency, and her replacement had private
sector experience, even though the replacement had also been the new mayor’s campaign
treasurer).
Although the Defendants have shown that an employee would have been terminated as
part of the reduction in force, the Defendants have not shown that the Plaintiff would have been
selected if she had not supported Elgin in the 2014 election. See Bisluk, 800 F.3d at 934
(“Defendants may rebut that evidence by demonstrating that they would have taken the same
action even if the protected conduct had not occurred.” (citing Peele v. Burch, 722 F.3d 956, 960
(7th Cir. 2013))). On these facts, a reasonable trier of fact could find that the Plaintiff was chosen
for inclusion in the RIF because of her political association. Accordingly, the Court denies the
Defendants’ motion for summary judgment on the Plaintiff’s First Amendment claims in Counts
One and Two of the Complaint.
B.

Qualified Immunity
“Qualified immunity attaches when an official’s conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have known.”
Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 7 (2021) (quoting White v. Pauly, 580 U.S. —, —,
137 S. Ct. 548, 551 (2017)). Thus, the two questions are “whether the plaintiff has alleged a
deprivation of a constitutional right at all, and whether the right at issue was clearly established
at the time and under the circumstances presented.” Bianchi v. McQueen, 818 F.3d 309, 319 (7th
Cir. 2016) (citation omitted). “A right is clearly established when it is ‘sufficiently clear that

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every reasonable official would have understood that what he is doing violates that right.’”
Rivas-Villegas, 142 S. Ct. at 7 (quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015)). Although the
Supreme Court’s “case law does not require a case directly on point for a right to be clearly
established, existing precedent must have placed the statutory or constitutional question beyond
debate.” Id. at 7–8 (quoting White, 580 U. S., at —, —, 137 S. Ct., at 551). The question of
whether a right is clearly established “must be undertaken in light of the specific context of the
case, not as a broad general proposition.” Id. (quoting Brosseau v. Haugen, 543 U.S. 194, 198
(2004)). The plaintiff bears the burden of establishing both elements. Leiser v. Kloth, 933 F.3d
696, 701 (7th Cir. 2019) (citation omitted).
As set forth above, there is a genuine dispute of fact as to whether Robinson violated the
Plaintiff’s First Amendment rights by terminating the Plaintiff’s employment based on her
political support of Robinson’s opponent. As to the second question, Robinson argues that she
was not on notice that her decision to terminate employees through an RIF violated any
established constitutional rights. This argument misstates the legal issue. The relevant question is
not the constitutionality of the termination pursuant to the RIF but the selection of the Plaintiff, a
non-policymaker, over Robinson’s supporters for termination on the basis that the Plaintiff
supported Robinson’s opponent. As argued by the Plaintiff, it was clearly established in 2016
that freedom from patronage firings is a First Amendment constitutional right. See Heffernan,
578 U.S. at 268 (citing Elrod, 427 U.S. 347; Branti, 445 U.S. 507); Hall, 389 F.3d at 762. The
“policymaking” exception was also clearly established. See Branti, 445 U.S. at 518. Here, it is
undisputed that the Plaintiff was not in a policymaking position. Cf. Moss v. Martin, 614 F.3d
707, 712 (7th Cir. 2010) (finding that the defendants were entitled to qualified immunity because
it was not clearly established that a government employee in the plaintiff’s position could not be

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fired for political reasons); Felton v. Bd. of Comm’rs of Cnty. of Greene, 5 F.3d 198, 200–01 (7th
Cir. 1993) (same). Robinson is not entitled to qualified immunity, and the Court denies the
motion for summary judgment on this basis.
C.

Monell Liability
For Calumet Township to be liable for damages under 42 U.S.C. § 1983, the Plaintiff

must present evidence that her constitutional rights were violated pursuant to an official policy of
the Township. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). The Plaintiff may prove
the “official policy” requirement by showing an officially adopted policy, a governmental
custom, or that “the deprivation was ‘made by its lawmakers or by those whose edicts or acts
may fairly be said to represent official policy.’” Bradley v. Village of University Park, 929 F.3d
875, 884 (7th Cir. 2019) (internal citations omitted). A single decision attributable to a municipal
policymaker, even if the action is only taken once, can satisfy the Monell requirement. Id.
(citations omitted). As Township Trustee, Robinson was the head of Calumet Township with
final decisionmaking authority over the hiring and firing of employees. Robinson made the
decision to terminate the Plaintiff’s employment. By virtue of her authority as an official
policymaker, her actions are considered the actions of the Township, forming the basis for the
Township’s liability under Monell if the Plaintiff establishes a constitutional violation at trial.
The Court denies the Defendants’ motion for summary judgment as to Defendant Calumet
Township on this basis.
D.

Fourteenth Amendment Property Right
The Plaintiff alleges that she had a protected property interest in her employment with the

Calumet Town ship Trustee’s Office and that her due process rights were violated when her
employment was terminated without an opportunity to grieve the decision. “The Due Process

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Clause of the Fourteenth Amendment forbids a state to deprive any person of ‘life, liberty, or
property, without due process of law.’” Dupuy v. Samuels, 397 F.3d 493, 503 (7th Cir. 2005)
(quoting U.S. Const. amend. XIV, § 1). A plaintiff bringing a procedural due process claim must
establish: “(1) a cognizable property interest; (2) a deprivation of that property interest; and (3) a
denial of due process.” Forgue v. City of Chicago, 873 F.3d 962, 969 (7th Cir. 2017) (citation
omitted).
The Defendants argue that the Plaintiff, as an at-will employee, did not have a
constitutionally protected property interest in her job. “For public employees, a ‘protected
property interest in employment can arise from a state statute, regulation, municipal ordinance,
or an express or implied contract.’” Bradley, 929 F.3d at 882 (citations omitted). Indiana law
recognizes two types of employment: “employment for a definite or ascertainable term and
employment at will.” Moulton v. Vigo County, 150 F.3d 801, 804 (7th Cir. 1998). “When no
definite or ascertainable term of employment exists, an employee is considered an employee at
will and may be terminated at any time, with or without cause.” Id. at 804–05 (citing Orr v.
Westminster Vill. N., Inc., 689 N.E.2d 712, 717 (Ind. 1997)). “The presumption of at-will
employment is strong, and [the Indiana Supreme Court is] disinclined to adopt broad and illdefined exceptions to the employment at-will doctrine.” Perkins v. Mem’l Hosp. of South Bend,
141 N.E.3d 1231, 1235 (Ind. 2020) (quoting Baker v. Tremco Inc., 917 N.E.2d 650, 653 (Ind.
2009)).3 “Under Indiana law, an employee at will has no property interest in further
employment.” Moulton, 150 F.3d at 804 (citing cases). As “officer” of the township, the Trustee

3

The Indiana Supreme Court has recognized only three exceptions to the at-will employment doctrine:
(1) if “‘adequate independent consideration’ supports the employment contract,” (2) if an employee is
“exercising a clear statutory right or obeying a legal duty” under the “public policy” exception, and (3) if
promissory estoppel applies. Perkins, 141 N.E.3d at 1235 (quoting Baker, 917 N.E.2d at 653–54; Orr,
689 N.E.2d at 718). The Plaintiff has not argued or offered evidence of an exception.

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“may appoint and remove all deputies and other employees in the officer’s office.” Ind. Code
§ 36-6-7-2.
The Plaintiff testified that she did not have an employment contract. Instead, she argues
that she had a property interest in her employment based on the procedural safeguards contained
in the employment handbook. Specifically, she cites the grievance provision, which provides that
a matter of appropriate dispute includes “[a] belief that Township policies, practices, rules,
regulations, or procedures have been applied inconsistently to an employee,” and argues that she
was not informed of her right to contest the termination of her employment.
However, the procedural protections by themselves do not create a property interest in the
Plaintiff’s continued employment because there was no substantive restriction in the handbook
on the Defendant’s decision to terminate her employment. See Moulton, 150 F.3d at 805
(recognizing that, although an employer’s rules or regulations may create a property interest in a
job, “[t]he mere fact that an employee is entitled to a hearing before [she] is terminated . . . does
not establish that [she] has a property right in [her] job” (citing Lyznicki v. Bd. of Ed., Sch. Dist.
167, 707 F.2d 949, 952 (7th Cir. 1983))); Montgomery v. Stefaniak, 410 F.3d 933, 939 (7th Cir.
2005) (quoting Moulton, 150 F.3d at 805). To the contrary, the handbook provides that the
“Township reserves the right to terminate employment at any time and for any reason” and can
terminate employment by resignation, discharge, retirement, expiration of employment contract,
or permanent RIF. The handbook also explains that “[t]ermination and discharge procedures are
only guidelines and do not create a legal contract between the Township and its employees.”
As an at-will employee, the Plaintiff did not have a constitutionally protected property
interest in her continued employment with the Calumet Township Trustee’s Office. Accordingly,

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the Court grants summary judgment in favor of the Defendants on the Plaintiff’s Fourteenth
Amendment due process claim in Count Three.
CONCLUSION
For the reasons set forth above, the Court hereby GRANTS in part and DENIES in part
the Defendants’ Motion for Summary Judgment [ECF No. 44], granting summary judgment in
favor of the Defendants on the Plaintiff’s Fourteenth Amendment claim in Count Three only.
The Plaintiff’s First Amendment claims in Counts One and Two remain pending against both
Defendants.
SO ORDERED on January 21, 2022.
s/ Theresa L. Springmann
JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT

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