Hancock v. St Joseph County et al
Filing
47
OPINION AND ORDER denying 42 RULE 56 MOTION to Strike filed by St Joseph County, St Joseph County Community Correction Program, and granting 33 MOTION for Summary Judgment filed by St Joseph County, St Joseph County Community Correction Program. Clerk is ordered to dismiss amended complaint counts nos. I-VI against defendants with prejudice; plaintiffs state law claim for breach of contract is dismissed without prejudice ***Civil Case Terminated. Signed by Judge Rudy Lozano on 7/6/2011. (kds)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
SUSAN HANCOCK,
Plaintiff,
vs.
ST. JOSEPH COUNTY and
THE ST. JOSEPH COUNTY
COMMUNITY CORRECTIONS
PROGRAM,
Defendants.
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CASE NO. 3:09-cv-343
OPINION AND ORDER
This matter is before the Court on the: (1) St. Joseph County
and the St. Joseph County Community Corrections Program’s Motion
for Summary Judgment, filed by Defendants on February 7, 2011 (DE
#33); and (2) Defendants, St. Joseph County and the St. Joseph
County Community Corrections Program’s Motion to Strike, filed by
Defendants on March 10, 2011 (DE #42).
For the reasons set forth
below, the motion to strike (DE #42) is DENIED.
Additionally, the
motion for summary judgment (DE #33) is GRANTED.
The Clerk is
hereby ORDERED to DISMISS Amended Complaint Count Nos. I-VI against
Defendants, St. Joseph County and the St. Joseph County Community
Corrections Program, WITH PREJUDICE.
The Clerk is also ORDERED to
DISMISS WITHOUT PREJUDICE Plaintiff’s state law claim for breach of
contract (Am. Compl. Count VII).
Additionally, the Clerk is
ORDERED to CLOSE this case.
BACKGROUND
Plaintiff, Susan Hancock, filed an amended complaint in this
case alleging that St. Joseph County and the St. Joseph County
Community Corrections Program (collective “Defendants”), violated
her federal constitutional rights pursuant to 42 U.S.C. § 1983,
breached its employment contract with Hancock by terminating her
without good cause, discriminated against her because of her race
and sex in contravention of Title VII of the Civil Rights Act of
1964, as amended 42 U.S.C. § 2000 et seq., and discriminated
against her due to her age in violation of the Age Discrimination
in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.
Defendants filed the instant motion for summary judgment on
February 7, 2011, arguing that Hancock’s employment was terminated
for legitimate, non-discriminatory reasons, which also constituted
cause for termination under her employment contract. Hancock filed
a brief in opposition on February 23, 2011.
a reply on March 10, 2011.
Defendants then filed
Consequently, this motion is fully
briefed and ready for adjudication.
Defendants also filed a motion to strike portions of the
statements and arguments in Plaintiff’s response and supporting
2
documents, arguing they are inadmissible under the Federal Rules of
Civil Procedure and Evidence.
DISCUSSION
The standards that generally govern summary judgment motions
are familiar. Pursuant to Rule 56(c) of the Federal Rules of Civil
Procedure, summary judgment is proper only if it is demonstrated
that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
See
Nebraska v. Wyoming, 507 U.S. 584, 590 (1993); Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986).
In other words, the record
must reveal that no reasonable jury could find for the nonmovant.
Karazanos v. Navistar Int'l Transp. Corp., 948 F.2d 332, 335 (7th
Cir. 1991); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250 (1986).
In deciding a motion for summary judgment, a court
must view all facts in the light most favorable to the nonmovant.
Anderson, 477 U.S. at 255; NUCOR Corp. v. Aceros Y Maquilas De
Occidente, 28 F.3d 572, 583 (7th Cir. 1994).
The burden is upon the movant to identify those portions of
"the
pleadings,
depositions,
answers
to
interrogatories,
and
admissions on file, together with the affidavits," if any, that the
movant believes "demonstrate the absence of a genuine issue of
material fact."
Celotex, 477 U.S. at 323.
Once the movant has met
this burden, the nonmovant may not rest upon mere allegations but
3
must set forth specific facts showing that there is a genuine issue
for trial.
Becker v. Tenenbaum-Hill Assocs., Inc., 914 F.2d 107,
110 (7th Cir. 1990); Schroeder v. Lufthansa German Airlines, 875
F.2d 613, 620 (7th Cir. 1989). "Whether a fact is material depends
on the substantive law underlying a particular claim and 'only
disputes over facts that might affect the outcome of the suit under
governing
law
judgment.'"
will
properly
preclude
the
entry
of
summary
Walter v. Fiorenzo, 840 F.2d 427, 434 (7th Cir. 1988)
(emphasis in original) (citing Anderson, 477 U.S. at 248).
"[A] party who bears the burden of proof on a particular issue
may not rest on its pleading, but must affirmatively demonstrate,
by specific factual allegations, that there is a genuine issue of
material fact which requires trial."
Beard v. Whitley Cnty. REMC,
840 F.2d 405, 410 (7th Cir. 1988) (emphasis in original); see also
Hickey v. A.E. Staley Mfg., 995 F.2d 1385, 1391 (7th Cir. 1993).
Therefore, if a party fails to establish the existence of an
essential element on which the party bears the burden of proof at
trial, summary judgment will be appropriate.
In this situation,
there can be "'no genuine issue as to any material fact,' since a
complete failure of proof concerning an essential element of the
nonmoving
party's
immaterial."
case
necessarily
renders
Celotex, 477 U.S. at 323.
4
all
other
facts
Motion to Strike
Defendants have filed a motion to strike, arguing portions of
the
statements
and
arguments
in
Plaintiff’s
Response
are
inadmissible under the Federal Rules of Civil Procedure and the
Federal Rules of Evidence and, therefore, should be stricken.
A
party who wishes to argue that portions of a statement of genuine
issues contain errors or are inadmissible on evidentiary grounds
may file a motion to strike those portions of the statement of
genuine issues.
Goltz v. University of Notre Dame du Lac, 177
F.R.D. 638, 640 (N.D. Ind. 1997).
“Pleadings that do not conform
with the local rules may be stricken at the discretion of the
court.”
Id. at 640 (citing Bell, Boyd & Lloyd v. Tapy, 896 F.2d
1101, 1103 (7th Cir. 1990); Pfeil v. Rogers, 757 F.2d 850, 858 (7th
Cir. 1985); Graham v. Security Sav. & Loan, 125 F.R.D. 687, 688-89
(N.D. Ind. 1989)).
More importantly, it is the function of a
court, with or without a motion to strike, to review carefully both
statements of material facts and statements of genuine issues and
the headings contained therein and to eliminate from consideration
any
argument,
conclusions,
and
assertions
unsupported
by
the
documented evidence of record offered in support of the statement.
See, e.g., S.E.C. v. KPMG LLP, 412 F.Supp.2d 349, 392 (S.D.N.Y.
2006); Sullivan v. Henry Smid Plumbing & Heating Co., Inc., No. 04
C 5167, 05 C 2253, 2006 WL 980740, at *2 n.2 (N.D. Ill. Apr. 10,
2006); Tibbetts v. RadioShack Corp., No. 03 C 2249, 2004 WL
5
2203418, at *16 (N.D. Ill. Sept. 29, 2004); Rosado v. Taylor, 324
F.Supp.2d 917, 920 n.1 (N.D. Ind. 2004).
In this case, Defendants argue that certain evidence, as
detailed in their memorandum of law, should be stricken pursuant to
Federal Rule of Civil Procedure 12(f) because it is immaterial,
remote, irrelevant, inflammatory, and scandalous.
(Mem. Of Law In
Supp. Of Defs.’ Mot. To Strike, DE #43, p. 2.) Motions to strike
are heavily disfavored, and usually only granted in circumstances
where the contested evidence causes prejudice to the moving party.
Kuntzman v. Wal-Mart, 673 F.Supp.2d 690, 695 (N.D. Ind. 2009);
Gaskin v. Sharp Elec. Corp., No. 2:05-CV-303, 2007 WL 2228594, at
*1 (N.D. Ind. July 30, 2007).
Certainly, this Court can give the
personnel records of the other employees and other employment
records the credit to which it is due, without the need to employ
a motion to strike.
The Court is able to sift through the evidence
and to consider each piece under the applicable federal rules, thus
there is no need to strike any part of Plaintiff’s Response.
Accordingly, the Court denies the motion to strike as unnecessary.
Undisputed Facts
Plaintiff Hancock is a Caucasian female born in 1966, who is
a Republican.
She started working for Defendants on August 11,
2003, and on that day, entered into a written employment contract
for the Director of Community Corrections at the St. Joseph County
6
Community Corrections Program.
Contract.)
(Hancock Dep., p. 13; Pl.’s Ex. F,
Section (B) of the Employment Agreement (which was
entered into between Plaintiff and the St. Joseph County Community
Corrections Program Advisory Board, with the approval of the Board
of Commissioners of St. Joseph County), states in pertinent part
that “this Agreement may be terminated for cause by a majority vote
of the SJCCCP Advisory Board, subject to approval of the Board of
Commissioners of St. Joseph County.”
(Pl.’s Ex. F, Contract.)
“Cause” has 8 definitions, including “lack of confidence in ability
to perform job functions.”
Id.
After she started as the Director of Community Corrections,
Hancock also assumed the duties as the Manager of the Ducomb
Center.
(Hancock Dep., pp. 41-42.)
As Director of Community
Corrections, Hancock’s office was in the courthouse, and she
largely worked as a liaison to other outside agencies and community
corrections programs, and she managed a recidivism study. (Id., p.
43.)
The purpose of the Ducomb Center is to manage offenders and
help them integrate back into society.
(Id., p. 48.)
As the
Manger of the Ducomb Center, Hancock was more hands-on, and oversaw
the work release facility and home detention reporting programs.
(Id., p. 43; Pl.’s Ex. G, Job Description.)
Before her ultimate termination, Hancock was never formally
disciplined by Defendants.
(Kostielney Dep., p. 15.)
7
On July 17,
2007, the Advisory Board gave her a favorable annual evaluation,
praising her commitment to the job, strong program administration
skills, and proactive leadership style.
Evaluation.)
(Pl.’s Ex. I, Letter &
Hancock received a rating of 4.5 out of 5, which
placed her between “outstanding” and “above average.”
Id.
On June 23, 2008, Hancock and her husband were charged with
crimes.
Specifically, Hancock was charged with receiving stolen
property, a Class D felony.
21.)
(Am. Answ. ¶ 27; Hancock Dep., pp. 19-
Defendants suspended Hancock on June 23, 2008, without pay.
(Am. Answ. ¶ 28.) Although Defendants claim to have placed Hancock
on
unpaid
suspension
pursuant
to
a
written
county
policy,
Defendants failed to identify the particular policy at issue.
(Kovach Dep., pp. 38, 47-48; Kostielney Dep., pp. 35-38.)
Hancock
handed in her work place keys and identification because she did
not know what action might be taken against her. (Hancock Dep., p.
21.)
After the suspension, Phyllis Emmons, Defendants’ Human
Resources Director, represented to the State of Indiana that
Hancock was expected to return to work “pending trial results.”
(Pl.’s Ex. J, Workforce Development.)
On May 4, 2009, Defendants
ended Hancock’s health insurance, identifying the qualifying event
as “Termination on April 30, 2009.”
Documents; Kovach Dep., p. 64.)
8
(Pl.’s Ex. K, Insurance
On May 29, 2009, the jury acquitted Hancock of all criminal
charges.
trial.
(Am. Answ. ¶ 30.)
The Commissioners did not attend her
On June 28, 2009, the Advisory Board voted to retain and
keep Hancock in her current position as the Director of the St.
Joseph County Community Corrections Program by a majority vote of
11 to 6.
On
(Id. ¶ 31.)
July
14,
2009,
all
3
members
of
the
Joseph
County
Commissioners, Robert Kovach, David Thomas, and Andrew Kostielney,
voted to terminate Plaintiff, allegedly because they had lost
confidence in her ability to perform her job functions. (Pl.’s Ex.
L, July 14, 2009 Minutes; Kovach Dep., pp. 33, 34, 37, 39; Thomas
Dep., p. 28; Kostielney Dep., p. 27.)
According to Commissioner
Thomas, he lacked confidence in Hancock’s ability to perform her
job because, as Director of Ducomb Center and the St. Joseph County
Community Corrections Program, she would need to work with judges,
prosecutors, and governmental agencies and he was worried that her
indictment, and the press that was received in the newspapers
during her trial, might hinder her ability to do such work.
(Thomas Dep., pp. 28-30.)
Thomas is a male Democrat who did not
attend Hancock’s trial, and he failed to review her personnel file
before he voted to terminate Hancock’s employment.
60-61.)
(Id., pp. 39,
Thomas did know about the acquittal in the criminal mater
and the Advisory Board’s vote to retain Hancock. (Id., pp. 25-26.)
Thomas admits that he did not have personal knowledge about whether
9
Hancock
could
successfully
perform
her
job
duties
and
responsibilities because she did not do any work while he was a
Commissioner.
(Id., p. 49.)
According to Commissioner Kostielney, he lacked confidence in
Hancock’s ability to perform the job functions because he thought
Hancock would not be able to work well with several members of the
St. Joseph County Community Corrections Program Advisory Board who
had voted to terminate Hancock’s employment, and she worked with
some of those people on a daily basis.
28.)
sound
(Kostielney Dep., pp. 27-
Additionally, Kostielney was concerned that Plaintiff lacked
judgment
because
she
was
not
activities (her husband was convicted).
aware
of
her
(Id., p. 28.)
husband’s
Finally,
Kostielney thought Hancock’s job could be compromised if her
husband entered the St. Joseph County Community Corrections Program
or the Ducomb Center Program.
(Id., pp. 28-29.)
Kostielney is a
male Republican, and he also had not reviewed Hancock’s personnel
file or performance evaluations prior to his vote to terminate
Hancock’s employment. (Id., pp. 19-20, 41.) He did not attend the
trial, but he knew the Advisory Board had voted to retain Hancock.
(Id., p. 18.) Kostielney admits that when Hancock was first placed
on unpaid suspension, the intent was to terminate her employment if
she was convicted.
(Id., pp. 41-42.)
10
Finally, Commissioner Kovach, a male Democrat, also did not
review Hancock’s personnel file prior to July 14, 2009.
(Kovach
Dep., pp. 43-44, 48.) Kovach voted to terminate Hancock because he
lacked confidence in her ability to perform the job functions.
(Id., p. 33.)
Specifically, he believed she could not have
continued to work in the corrections system and he discussed this
with people in the criminal justice system whose opinion he valued.
(Id., pp. 33-34.)
At the time of the vote, Kostielney believed
that he had told Kovach that Hancock was a Republican. (Kostielney
Dep., pp. 11-12.)
Hancock was eventually replaced by Alonzo Poindexter, an
African American male, who was hired as the Manager of the Ducomb
Center.
(Kovach Dep., pp. 53-54.)
At the time he was hired,
Poindexter had a felony conviction on his criminal record.
(Pl.’s
Ex. N, Poindexter Docs.)
First and Fourteenth Amendment Political Association Claim
Hancock alleges political discrimination in violation of the
First and Fourteenth Amendment (Am. Compl. Count I).
Generally,
“public employees may not be made to suffer adverse job actions
because of their political beliefs.”
Carlson v. Gorecki, 374 F.3d
461, 464 (7th Cir. 2004) (citing Rutan v. Republican Party of
11
Illinois, 497 U.S. 62, 79 (1990); Elrod v. Burns, 427 U.S. 347, 357
(1976) (“There can no longer be any doubt that freedom to associate
with others for the common advancement of political beliefs and
ideas is a form of ‘orderly group activity’ protected by the First
and Fourteenth Amendments. . . . [t]he right to associate with the
political party of one’s choice is an integral part of this basic
constitutional freedom.”)). It is therefore “well established that
hiring, firing, or transferring government employees based on
political motivation violates the First Amendment,” with certain
exceptions for employees in policymaking or confidential positions.
Hall v. Babb, 389 F.3d 758, 762 (7th Cir. 2004).
party
has
contended
confidential position.
that
Hancock
is
a
Here, neither
policymaker
or
in
a
Thus, the Court may move on to whether the
prima facie case has been satisfied.
In order to establish a prima facie case of politically
motivated discharge, Hancock must prove by a preponderance of
evidence that: (1) her conduct was constitutionally protected; (2)
she suffered an actionable deprivation; and (3) the protected
conduct caused the employer’s action. Gunville v. Walker, 583 F.3d
979, 983-84 (7th Cir. 2009) (noting that prior to Gross v. FBL Fin.
Serv., Inc., 129 S.Ct. 2343 (2009), plaintiffs could prevail in a
First Amendment § 1983 action by showing their speech was a
substantial motivating factor in defendant’s decision; however,
Gross requires plaintiffs in federal suits to demonstrate but-for
12
causation unless a statute provides otherwise); see also Fagbemi v.
City of Chicago, No. 08 C 3736, 2010 WL 1193809, at *6 (N.D. Ill.
Mar. 19, 2010) (finding that, after Gross, to make a prima facie
case of employment discrimination based on political affiliation,
plaintiff must show that the protected conduct was a “but-for”
cause of the adverse employment action).1
If Hancock is able to
show that her political affiliation was a but-for cause of her
termination, the burden then shifts to Defendants to prove by a
preponderance of the evidence that they had a legitimate, nonpolitical reason for terminating her in order to avoid liability.
Hall, 389 F.3d at 762; Garrett v. Barnes, 961 F.2d 629, 632 (7th
Cir. 1992).
For Hancock to prove that her political affiliation was a butfor cause in Defendants’ decision to terminate her, she “must first
prove that [Defendants] in fact knew of [it].”
1
Garrett, 961 F.2d
Like in Gunville, this Court notes that even if Plaintiff
was held to the less stringent standard of proving her political
affiliation was a substantial or motivating factor in her
termination, Hancock’s claim would still fail because she has not
produced sufficient evidence that her affiliation with the
Republican party was tied to Defendants’ decision to terminate
her employment. Even under the prior lesser standard, “[t]hat
burden is not insignificant. A disgruntled employee fired for
legitimate reasons would not be able to satisfy [her] burden
merely by showing that [she] carried the political card of the
opposition party or that [she] favored the defendant’s opponent
in the election.” Nekolny v. Painter, 653 F.2d 1164, 1168 (7th
Cir. 1981). In other words, “[i]t is not enough to show only
that the plaintiff was of a different political persuasion than
the decisionmakers . . . .” Hall, 389 F.3d at 762.
13
at 632 (citing Cusson-Cobb v. O’Lessker, 953 F.2d 1079 (7th Cir.
1992)); see also Zerante v. DeLuca, 555 F.3d 582, 585 (7th Cir.
2009) (“the threshold question is whether [defendants] even knew
about [plaintiff’s] political activities.”); see also Nelms, 153
F.3d at 819 (in order to demonstrate defendants were motivated by
political affiliation in determining which employees to terminate,
plaintiff must first show defendants knew of his association with
the Republican party).
Defendants contend that Hancock has offered no evidence,
beyond mere speculation, that any of the decisionmakers were aware
of her affiliation with the Republican party. In response, Hancock
claims that Commissioner Kostielney, Kovach, and Thomas all knew
she was a Republican when she was terminated.
Kostielney (a
Republican himself), testified during his deposition that he knew
that Hancock was a Republican when he voted to terminate her.
(Kostielney Dep., p. 10.) Specifically, Kostielney said a few days
before the vote, a letter had been sent to him stating there was
possible litigation due to Hancock’s removal, and the letter
identified Hancock as being a Republican.
(Id., pp. 10-12.)
Kostielney’s receptionist, who the Commissioners share, showed him
the letter. (Id., p. 11.) Kostielney said the other commissioners
would have had access to look at the letter, but he did not know if
they saw it.
Id.
When asked if he ever talked to Bob Kovach (a
Democrat) about Hancock’s political party, he replied, “I think the
14
comment I made was, after I’d heard that, that I was surprised that
– that was the first time I’d guessed what party she was.”
(Kostielney Dep., pp. 11-12.)
Kostielney said he “believe[d]” he
told that to Kovach before the vote.
Kostielney
did
not
recall
making
(Kostielney Dep., p. 12.)
any
comments
to
Thomas
(a
Democrat) about Hancock’s political party affiliation before the
vote.
(Kostielney Dep., p. 12.)
Importantly, both Kovach and Thomas testified during their
depositions that they did not know Hancock’s political affiliation
when they voted to terminate her employment.
Thomas Dep., pp. 18-19.)
(Kovach Dep., p. 71;
Moreover, Hancock herself admitted that
neither Kovach nor Thomas had any animus with respect to her
concerning her political affiliation.
(Hancock Dep., pp. 40-41.)
As to Kostielney, who undeniably knew her political affiliation,
Hancock also concedes that he never showed her any animus based on
her political persuasion.
(Hancock Dep., pp. 38-39.)
This is not
surprising considering Kostielney was also a Republican, like
Hancock.2
2
It is somewhat perplexing that Hancock claims she was
discriminated against on the basis of politics when the 3-member
Board of Commissioners voted to terminate her, when one member
(Kostielney), was the same political persuasion as Hancock.
Hancock argues Kostielney’s affiliation with the Republican party
is irrelevant, because the Board of Commissioners could take
action with a quorum - 2 Commissioners. (DE #36, p. 13.)
However, the fact that one Commissioner with the same political
affiliation also voted to terminate Hancock definitely does not
help Hancock’s claim of political discrimination.
15
Taking all inferences in favor of Hancock, at best, she might
be able to prove to a factfinder that Kostielney (Republican) and
Kovach (Democrat) knew her affiliation.
However, there is no
evidence whatsoever that Thomas (Democrat) was aware of Hancock’s
affiliation.
Thomas specifically testified he did not know her
political affiliation, and there is no evidence in the record that
anyone told him Hancock was a Republican.
Moreover, even if
Hancock could demonstrate knowledge of her political affiliation on
the part of Defendants, she must also show that they took action
against her because of her political affiliation.
See Gunville,
583 F.3d at 984. In doing so, Hancock cannot rely on “self-serving
declarations based on nothing more than [her] own speculation.”
Healy v. City of Chicago, No. 00 C 6030, 2004 WL 1630578, at *6
(N.D. Ill. July 20, 2004); see also Sybron Transition Corp. v.
Security Ins. Co. Of Hartford, 107 F.3d 1250, 1255 (7th Cir. 1997)
(“[a] party must present more than mere speculation or conjecture
to defeat a summary judgment motion.”).
Here, Plaintiff has not
pointed to anything in the record to show that Defendants fired her
because she was a Republican.
In
her
response
memorandum,
Hancock
argues
that
“[t]he
presence of a similarly situated comparator can be used to link the
termination with Hancock’s political party affiliation” (DE #36,
pp. 13-14), without citing any legal authority whatsoever.
She
then tries to show that Richard Hunt, a Democrat, was treated more
16
favorably under comparable circumstances. This type of analysis is
not enough to make a prima facie showing.
See, e.g., McCarthy v.
Chicago Park Dist., No. 87 C 8590, 1988 WL 56222, at *3 (N.D. Ill.
May 18, 1988) (“In the absence of proof that the employer was
motivated by political affiliation in favoring one employee over
another,
evidence
qualifications
of
the
coupled
with
unfavored
employee’s
identification
of
superior
the
favored
employee’s political connections are insufficient to withstand
summary judgment in a First Amendment claim challenging that
favortism.”).
In sum, Hancock has failed to present evidence that
politics was a but-for cause of any unfair treatment; therefore,
she has failed to make out a prima facie case of discrimination.
See Gunville, 583 F.3d at 984.
Finally, because Hancock has not shown that the St. Joseph
County
Community
Corrections
Advisory
Board
or
the
Board
of
Commissioners caused her to suffer a constitutional injury, there
is no need to determine whether St. Joseph County had a “municipal
policy or custom” of restraining its employees’ First Amendment
rights under Monell v. Department of Soc. Servs. of City of New
York, 436 U.S. 658 (1978); see Houskins v. Sheahan, 549 F.3d 480,
493 (7th Cir. 2008) (where plaintiff fails to establish deprivation
of
a
constitutional
right,
Monell
claims
must
also
fail).
Therefore, all Defendants are entitled to summary judgment on
17
Hancock’s First and Fourteenth Amendment political association
claims.
14th Amendment and Title VII Sex Claims
Hancock
alleges
sex
discrimination
in
violation
of
the
Fourteenth Amendment’s Equal Protection clause and Title VII of the
Civil Rights Act of 1964, as amended 42 U.S.C. § 2000e et seq. (Am.
Compl. Counts II and IV).
standard of proof.
Both claims are analyzed under the same
See Williams v. Seniff, 342 F.3d 774, 787-88
(7th Cir. 2003); Salas v. Wisconsin Dep’t Of Corrections, 493 F.3d
913, 926 (7th Cir. 2007).
Although a plaintiff may choose to
establish a sex claim by either the direct or indirect method of
proof, see Poer v. Astrue, 606 F.3d 433, 439 (7th Cir. 2010), in
this case, both parties agree that there is no direct evidence of
discrimination.
Under the familiar burden-shifting framework of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), Hancock has
the initial burden of establishing a prima facie case of sex-based
discrimination.
(7th Cir. 2005).
See Farrell v. Butler Univ., 421 F.3d 609, 613
To establish a prima facie case of unlawful
discrimination, a plaintiff must show that: (1) she is a member of
a protected class; (2) she suffered an adverse employment action,
(3) she was meeting legitimate employment expectations at the time
of termination, and (4) similarly situated individuals, outside of
her respective protected class, were treated more favorably by the
18
employer.
Everroad v. Scott Truck Sys., Inc., 604 F. 3d 471, 477
(7th Cir. 2010).
Defendants do not dispute that as a woman,
Hancock is a member of a protected class or that she suffered an
adverse employment action.
Thus, the Court is left analyzing the
last two prongs of the prima facie test.
If Hancock establishes
her prima facie case, the Defendants must state a legitimate, nondiscriminatory reason for the adverse employment action. McDonnell
Douglas, 433 U.S. at 802; see also LaFary v. Rogers Group, Inc.,
591 F.3d 903, 907 (7th Cir. 2010).
If Defendants then offer a
legitimate, non-discriminatory reason, the burden shifts back to
Hancock to come forward with evidence showing the stated reason is
pretextual, and that her gender was the real reason she was fired.
Id.
Plaintiff lists the following facts in support of her argument
that she was meeting legitimate expectations at the time of her
termination.
She is a member of the National Association for
Professional Women, and has completed various certifications and
training related to community corrections.
(DE #36, p. 20.)
Before her suspension and termination, she had never been formally
disciplined.
Additionally, she received positive performance
evaluations from the Advisory Board in the past.
On July 17, 2007
(approximately 2 years before she was terminated), Hancock received
a performance evaluation from the Advisory Board of 4.5 out of 5
points, and was praised for her commitment and leadership.
19
It is
undisputed that prior to her indictment, Defendants were very happy
with Hancock as an employee.
However, these arguments all go
towards things in the past - the plaintiff bears the burden of
showing that she was meeting her employer’s expectations at the
time of the adverse action.
Squibb v. Mem’l Med. Ctr., 497 F.3d
775, 788 (7th Cir. 2007).
Importantly, following her acquittal, on June 28, 2009, the
Advisory
Board
employment.
issued
a
majority
vote
(11-6)
to
retain
her
(Am. Answ. ¶ 31; Pl.’s Ex. Q, Meeting Minutes.)
Certainly this fact goes a long way towards proving that at least
a majority of the Advisory Board considered Hancock to be meeting
their expectations after she was acquitted, and possibly members of
a jury could conclude the same.
This
case
is
somewhat
tricky
because
the
reason
the
Commissioners gave for terminating Hancock’s employment is that
they lacked confidence in her ability to perform her job functions
after her criminal indictment and acquittal - a really very
subjective reason to fire Hancock.
termination
is
certainly
not
A subjective reason for
necessarily
a
cover-up
for
a
discriminatory termination, but it does make it more difficult to
determine if Plaintiff was meeting Defendants’ legitimate job
expectations.
See, e.g., Namenwirth v. Board of Regents of Univ.
Of Wisconsin Sys., 769 F.2d 1235, 1243 (7th Cir. 1985) (finding in
20
a tenure case dealing with judgments about academic potential, that
subjective assessments “should not be permitted to camouflage
discrimination.”).
Case
law’s
definition
of
“legitimate
expectations” is sort of incongruous with the subjective reason of
termination in this case - to qualify as legitimate expectations,
the
expectations
employee.
must
be
reasonable
and
communicated
to
the
See Dale v. Chi. Tribune Co., 797 F.2d 458, 463 (7th
Cir. 1986). Here, none of the Commissioners attended the trial, or
reviewed Hancock’s personnel file.
Only Commissioner Kostielney
had some type of prior interaction with Hancock before he voted,
and
he
testified
that
he
thought
Hancock
did
a
good
job.
(Kostielney Dep., pp. 14-15.) Moreover, the time line of this case
is somewhat vexing to the Court - Hancock was acquitted on May 29,
2009, the Advisory Board voted to retain her on June 28, 2009, and
the Board of Commissioners voted to terminate her on July 14, 2009.
It is unclear whether Hancock had even returned to her duties after
the acquittal, or had an opportunity to prove that she could meet
Defendants’ legitimate expectations after she was acquitted.
If
Defendants truly lacked confidence in her ability to perform the
job just because she went through the rigors of a criminal trial,
why didn’t they just fire her when she was indicted?
If the result
of the trial did not matter, why did they keep her on?
Viewing the
record and drawing all reasonable inferences in favor of Hancock,
as this Court must at this stage of the proceedings, the Court
21
finds that a reasonable jury could conclude that Hancock was
meeting the legitimate expectations of Defendants at the time she
was terminated.
Because Hancock raised an inference that she was meeting her
employer’s legitimate employment expectations at the time of her
termination, the next question for the Court is whether similarly
situated employees were treated more favorably.
In determining
whether other employees are similarly situated to Hancock, the
Court “must look at all relevant factors, the number of which
depends on the context of the case.”
McGowan v. Deere & Co., 581
F.3d 575, 579 (7th Cir. 2009) (quoting Radue v. Kimberly-Clark
Corp., 219 F.3d 612, 617 (7th Cir. 2000)).
Plaintiff cites to
Skorjanc v. Clarian Health Partners, Inc., No. 1:03-CV-1583-LJMWTL, 2005 WL 552454 (S.D. Ind. Jan. 24, 2005), to set forth the
parameters of this analysis.
“In disciplinary cases such as this,
in which a plaintiff claims that she was disciplined by her
employer more harshly than a similarly situated employee based on
some prohibited reason, the plaintiff must show that she is
similarly situated with respect to performance, qualifications, and
conduct.”
Skorjanc, 2005 WL 552454, at *6 (citing Radue, 219 F.3d
at 617).
However, “the similarly situated co-worker inquiry is a
search for a substantially similar employee, not for a clone”
Chaney v. Plainfield Healthcare Ctr., 612 F.3d 908, 916 (7th Cir.
2010).
This typically “entails a showing that the two employees
22
dealt with the same supervisor, were subject to the same standard,
and had engaged in similar conduct without such differentiating or
mitigating circumstances as would distinguish their conduct or the
employer’s treatment of them.”
Skorjanc, 2005 WL 552454, at *6
(citing Radue, 219 F.3d at 618). However, in Skorjanc, because the
plaintiff’s claim was based on allegedly disparate discipline under
a policy that applied to her and three younger employees equally,
that court found that issues of tenure, responsibility, salary
differential and experience were not pertinent to an analysis of
whether the employees were similarly situated.
Id. at *7.
Although Plaintiff originally named 17 individuals who she
claimed were similarly-situated employees treated more favorably,
she narrowed down her argument in her response memorandum to two
individuals: Richard Hunt and Kevin Klaybor. Klaybor works for the
St. Joseph County Assessor’s Office.
(Hancock Dep., p. 80.)
He
was criminally charged relating to an alleged assault and battery
of his girlfriend.
(Pl.’s Ex. E, Klaybor Docs.)
Like Hancock, he
was initially placed on suspension without pay on October 21, 2008,
following the allegations of criminal assault and battery.
Id.
Hancock alleges the suspension was conducted pursuant to the same
policy used to suspend Hancock. However, before the outcome of his
criminal trial, Klaybor was reinstated on May 11, 2009, to his
position in the Assessor Office.
was found not guilty at trial.
Id.
Id.
23
On August 28, 2009, Klaybor
Although he was employed by
the
Assessor’s
Office,
Commissioner
Kovach
gave
the
general
testimony during his deposition that “we, [St. Joseph County Board
of Commissioners] through the HR Department, deal with the majority
of county employees” and the Board is in charge of the St. Joseph
County Human Resources Department. (Kovach Dep., pp. 18, 22.)
Nevertheless, as Defendants point out in their motion to strike,
the St. Joseph County Assessor hires and fires his or her own
deputies and employees. See Ind. Code §§ 36-2-16-4, 36-2-16-8. In
fact, Kovach admitted that he did not know whether Klaybor was
terminated as a result of being charged with a crime, because
“[i]t’s not my position to hire, fire or terminate Mr. Klaybor.”
(Kovach
Dep.,
p.
67.)
Indeed,
Kovach
testified
that
the
Commissioners have no personnel authority over the Assessor’s
Office.
Id.
Therefore,
the
St.
Joseph
County
Board
of
Commissioners does not have the authority to hire or fire St.
Joseph County Assessor deputies and employees.
“Similarly situated” comparators “must be similar enough that
any differences in their treatment cannot be attributed to other
variables.”
Silverman v. Board of Educ. Of City of Chicago, 637
F.3d 729, 742 (7th Cir. 2011).
distinctions
in
positions,
Those variables can include
performance,
or
supervisors.
Id.
(citing Senske v. Sybase, Inc., 588 F.3d 501, 510 (7th Cir. 2009).
For an individual to succeed on a discrimination claim based on
alleged
disparate
treatment
in
24
discipline,
they
must
show
a
similarly
situated
employee
held
the
same
type
of
job,
was
disciplined by the same supervisor, and subject to the same
standards.
Brummett v. Sinclair Broad. Group, Inc., 414 F.3d 686,
692 (7th Cir. 2005). Discipline from a different supervisor “sheds
no light” on the decision to discharge.
Little v. Illinois Dep’t
of Revenue, 369 F.3d 1007, 1012 (7th Cir. 2004).
Here, Klaybor
held a different position (he was an employee of the St. Joseph
County
Assessor’s
Office
while
Hancock
was
the
Director
of
Community Corrections and Manager of Ducomb Center), and had a
different supervisor (the St. Joseph County Assessor).
Given that
Klaybor held a very different position (with different duties) from
Hancock, and that the Board of Commissioners had no authority over
Klaybor, and was not his supervisor, he is not “directly comparable
to the plaintiff in all material respects,” Patterson v. Indiana
Newspapers, Inc., 589 F.3d 357, 365-66 (7th Cir. 2009) (quoting
Raymond v. Ameritech Corp., 442 F.3d 600, 610-11 (7th Cir. 2006)),
and does not qualify as a similarly situated employee.
Hancock also claims that Richard Hunt is a similarly situated
employee.
Hunt, a male Democrat, is an Investment Officer that
held an employment contract directly with the St. Joseph County
Board of Commissioners.
(Pl.’s Ex. O, Hunt Docs.)
The St. Joseph
County Board of Commissioners approve contracts for Investment
Officers such as Hunt, and the Board also has the authority to end
those contracts.
(Kovach Dep., pp. 65-66.)
25
In 2000, Hunt was
investigated by the St. Joseph County Prosecutor’s Office for
allegedly viewing and storing pornography on St. Joseph County
computers, but this did not result in Hunt’s termination.
Ex. O, Hunt Docs.)
(Pl.’s
On February 28, 2006, Hunt was suspended “with
pay” from his employment with St. Joseph County, and then he
retired
early.
Id.
Kovach
testified
that
after
Hunt
was
suspended, he became aware that Hunt was charged with Driving Under
the Influence.
(Kovach Dep., pp. 64-65.)
As pointed out by
Defendants, Hancock has failed to give this Court any details about
Hunt being charged with DUI, including when the incident occurred,
or how the charge was resolved. Additionally, there seems to be no
context regarding how Hunt’s investigation by the St. Joseph County
Prosecutor’s Office is related to Hancock’s termination, which
occurred 8 years later.
Certainly, there is no evidence that Hunt
engaged in similar conduct to Hancock, without being subject to the
same level of discipline.
Moreover, Hunt had nothing to do with
the St. Joseph County Community Corrections Program or Ducomb
Center, and as an investment officer, held quite a different
position than Hancock. Employees are not similarly-situated where
they did not engage in similar misconduct and are not disciplined
by the same decisionmaker. See Tomanovich v. City of Indianapolis,
457 F.3d 656, 667 (7th Cir. 2006); Taffe v. Illinois Dep’t of
Employment Sec., 229 F.Supp.2d 858, 869 (N.D. Ill. 2002) (finding
employees
not
similarly-situated
26
where
they
held
different
positions and were disciplined for different types of conduct). As
such, Hunt does not qualify as a similarly situated employee
either.
Because Hancock has failed to identify a similarly
situated co-worker, “we cannot compare [an employer’s] treatment of
[a plaintiff with that co-worker] . . . [if the plaintiff] fail[s]
to meet her burden of establishing that [the co-worker] is a
similarly situated employee.”). Patterson v. Avery Dennison Corp.,
281 F.3d 676, 680 (7th Cir. 2002).
Because Hancock has failed to meet her prima facie case of sex
discrimination, we need not address her pretext argument.
See,
e.g., Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1036 (7th Cir.
1999) (abrogated on other grounds).
Even assuming, arguendo, that
Hancock had met her prima facie case of sex discrimination, this
Court finds that her claims would still fail because Defendants
have put forth a legitimate reason, not affiliated with her sex, to
suspend and terminate Hancock.
On July 14, 2009, the three
Commissioners voted to terminate Hancock because they had lost
confidence
in
her
ability
to
perform
her
job
functions.
Specifically, Thomas believed the indictment would impede her
ability
agencies.
to
work
with
judges,
prosecutors,
(Thomas Dep., pp. 29-30.)
and
governmental
Kostielney was concerned
about her ability to work with members of the St. Joseph County
Community Corrections Program Advisory Board who had voted to
terminate her employment, and was concerned she lacked sound
27
judgment given that she was not aware of the activities undertaken
by
her
husband
in
her
home.
(Kostielney
Dep.,
pp.
27-29.)
Finally, Kovach lacked confidence in her ability to perform her job
functions, and thought she could not continue to work in the
corrections system. (Kovach Dep., pp. 33-34.) Given the nature of
Hancock’s position in the corrections system, and the requirements
of her job that she interact with other people in the system, these
reasons for termination all seem legitimate, and not related to her
sex.
Moreover, Hancock simply has not shown that Defendants’
proffered
justifications
for
terminating
her
were
actually
pretextual - or dishonest and based on discriminatory intent.
Hobbs v. City of Chicago, 573 F.3d 454, 461 (7th Cir. 2009)
(“Pretext is a lie, specifically a phony reason for some action.”);
see also Pitasi v. Gartner Group, Inc., 184 F.3d 709, 718 (7th Cir.
1999) (citations omitted) (“[I]t is not sufficient for the employee
to show that his employer fired him for incorrect or poorly
considered reasons.
He must establish that the employer did not
honestly believe the reasons it gave for terminating him.”).
Hancock has not shown that Defendants lied about their reasons for
terminating her. In sum, summary judgment is warranted in favor of
Defendants on Hancock’s sex discrimination claims.
Fourteenth Amendment and Title VII Race Claims
28
Summary judgment is also appropriate on Hancock’s Fourteenth
Amendment race discrimination claim (Am Compl. Counts III and VII).
Hancock is Caucasian.
She alleges in the complaint that it was
discriminatory for her to be terminated, while an African American
employee (Alonzo Poindexter), was hired as Manager of Ducomb
Center, despite the fact that he had been convicted of a felony in
the past.3
Additionally, Hancock points to Sharon McBride, an
African American female, who replaced her as Director of Community
Corrections.4
As with her other claims of discrimination, there is
simply no direct evidence to support such speculation - Hancock
herself admits that Defendants made no statements of animus toward
her
with
respect
affiliation.
to
her
race,
gender,
age,
or
political
(Hancock Dep., pp. 37-41, 65, 91-92, 98-99.)
3
Hancock gives no more detail about this felony conviction
listed on Poindexter’s application, which he “offered to
explain.” (Pl.’s Ex N, Poindexter Docs.) The Court does not
know when it occurred, how much time had expired between the
conviction and the employment, or what kind of felony the
conviction was for. As such, this vague and undefined fact does
not bolster Plaintiff’s argument that she was discriminated
against because of her race.
4
Plaintiff also alleges that a background search conducted
by Defendants showed that Sharon McBride had a criminal arrest in
Utah. (DE #36, p. 25.) Hancock concedes she does not know if
this background check is “accurate,” (Id.), and without more
details about when the alleged arrest occurred, if it was indeed
the same Sharon McBride that was hired as Director of Community
Corrections, and how the charge was concluded, again, this fact
does not bolster Hancock’s argument. Moreover, the Commissioners
specifically voiced their concern in this case that Hancock would
not be able to effectively work in the same system in which she
was prosecuted. Because McBride’s alleged arrest occurred in
Utah, this is quite different from Hancock’s situation.
29
Under the indirect method of proof, Hancock must show that
she: (1) belongs to a protected class; (2) her performance met
Defendants’ legitimate expectations; (3) she suffered an adverse
employment action; and (4) similarly-situated others not in her
protected class received more favorable treatment.
Fane v. Locke
Reynolds, LLP, 480 F.3d 534, 538 (7th Cir. 2007).
In a reverse
discrimination case, like this one, the first prong of the prima
facie case is modified to require the plaintiff to “show background
circumstances
sufficient
to
demonstrate
that
the
particular
employer had reason or inclination to discriminate invidiously
against whites or evidence that there is something ‘fishy’ about
the facts at hand.”
820
(7th
omitted).
Cir.
Hague v. Thompson Distrib. Co., 436 F.3d 816,
2006)
Hancock
(citations
has
omitted)
presented
no
(internal
evidence
quotations
of
invidious
discrimination, or even that any policies were in place to increase
diversity. One fact that undercuts Plaintiff’s argument is that on
the day she was terminated, the County Commissioner also terminated
the employment of Tori Malone, an African American female who was
an assistant in the County’s Human Resource Department.
(Hancock
Dep., p. 131; Kovach Dep., pp. 21-22, 17; Thomas Dep., p. 31;
Kostielney Dep., pp. 46-47.)
It is true that there is no precise list of what constitutes
background circumstances demonstrating something fishy going on.
Mills v. Health Care Serv. Corp., 171 F.3d 450, 455 (7th Cir.
30
1999). However, the Mills court recognized that some circumstances
which
could
go
towards
the
background
circumstances
include
evidence of schemes to fix performance ratings, that the hiring
system seemed rigged because it departed from usual procedures, or
where the person ultimately hired was clearly less qualified than
the plaintiff. Id.; see also DeWeese v. DaimlerChrysler Corp., 120
F.Supp.2d 735, 748 n.19 (S.D. Ind. 2000). Hancock has not produced
evidence of schemes to unfairly fix her performance ratings, or a
system rigged against her, or that she was terminated despite
superior qualifications.
Instead, the evidence in the record
indicates that Hancock was suspended because she had been charged
with a crime, and ultimately terminated because the Board of
Commissioners lacked confidence in her ability to carry out her job
functions.
There is nothing “fishy” in the record to support
Hancock’s reverse race discrimination claim.
Thus, Hancock has
failed to establish a prima facie case of race discrimination.
Moreover, as discussed earlier in this opinion, even if
Hancock had established her prima facie case, and even giving her
the benefit of the doubt that she has raised an inference that she
was meeting Defendants’ legitimate job expectations, Defendants
gave a legitimate reason for her suspension and termination.
See
Hartley v. Wisconsin Bell, Inc., 124 F.3d 887, 890 (7th Cir. 1997)
(employer
prevails
if
it
“honestly
believed
in
the
nondiscriminatory reasons it offered, even if the reasons are
31
foolish or trivial or even baseless.”).
As such, summary judgment
is
on
warranted
in
favor
of
Defendants
Hancock’s
Fourteenth
Amendment race claim.
Age Discrimination Claim
Finally,
Hancock
brings
a
claim
for
age
discrimination
pursuant to 29 U.S.C. § 621 et seq. (the “ADEA”) (Am. Compl. Count
VI).
The ADEA makes it unlawful for an employer to discharge or
otherwise
discriminate
employee's age.
against
an
employee
29 U.S.C. § 623(a)(1).
because
of
An employee must be at
least 40 years of age to pursue an age discrimination claim.
U.S.C. § 631(a).
applicable.
To
the
29
Hancock was born in 1966, so the ADEA is
succeed,
"a
plaintiff
must
show
that
her
termination . . . would not have occurred but for her employer's
motive to discriminate on the basis of her age."
Horwitz v. Bd. of
Ed. of Avoca Sch. Dist. No. 37, 260 F.3d 602, 610 (7th Cir.
2001)(quotation omitted).
The Court notes that Defendants argued in their motion for
summary judgment that Hancock’s claim for age discrimination failed
as a matter of law.
Hancock failed to respond to this argument.
It is well established that when a party fails to respond to an
issue raised in a summary judgment motion, the issue is deemed
abandoned and waived.
See, e.g., Palmer v. Marion Cnty., 327 F.3d
588, 597-98 (7th Cir. 2003) (holding claims not addressed in a
32
summary judgment opposition brief are deemed abandoned); Laborers
Int’l Union of North America v. Caruso, 197 F.3d 1195, 1197 (7th
Cir. 1999) (stating arguments not presented to the court in
response to a summary judgment motion are waived).
Accordingly,
Hancock has abandoned and waived her age discrimination claim.
Even assuming, arguendo, that Hancock had not abandoned this claim,
it would still be subject to summary judgment.
The same standards apply for proving discrimination in ADEA
cases, Title VII, and Equal Protection cases.
See Williams, 342
F.3d at 788 n.13 (noting the same standards apply to both Title VII
and Section 1983 cases); Visser v. Packer Eng’g Assocs., Inc., 924
F.2d 655, 658 (7th Cir. 1991) (noting same standards apply to Title
VII and ADEA cases). Unlawful discrimination may be proved through
the direct method showing evidence of impermissible motive, or
indirectly by the burden-shifting method outlined by the Supreme
Court in McDonnell Douglas.
Under either method, a plaintiff must
prove “that age was the ‘but-for’ cause of the employer’s adverse
action.”
Gross, 129 S. Ct. at 2351.
The Court will first address whether Hancock has satisfied her
burden of proof under the direct method.
Under the direct method
route, Plaintiff must present "evidence of (1) a statutorily
protected activity; (2) an adverse action taken by the employer;
and (3) a causal connection between the two."
33
Sitar v. Indiana
Dep't of Transp., 344 F.3d 720, 728 (7th Cir. 2003) (citation
omitted).
Under the direct method, Hancock may present direct or
circumstantial evidence.
Direct evidence essentially requires an
admission by the decisionmaker that her actions were based upon
discrimination.
Cir. 2003).
Rogers v. City of Chicago, 320 F.3d 748, 753 (7th
Plaintiff can also seek to avert summary judgment by
presenting enough circumstantial evidence to compose a "convincing
mosaic" that allows a jury to infer intentional retaliation.
Volovsek v. Wisconsin Dep't of Agric., Trade and Consumer Prot.,
344 F.3d 680, 690 (7th Cir. 2003) (citation omitted).
Here, Hancock has offered no evidence that amounts to an
admission of discriminatory animus based on her age.
(Hancock
Dep., pp. 18-21.) Viewing the facts in the light most favorable to
Plaintiff, she has put forth no direct or circumstantial evidence
from which a rational trier of fact could reasonably infer that
Defendants terminated Hancock because of her age.
As such,
Plaintiff has failed to establish a prima facie case of age
discrimination under the direct method.
As an alternative to the direct method of proof, Plaintiff may
proceed under the McDonnell Douglas burden-shifting approach which
sets forth a four-step inquiry. First, Plaintiff has the burden of
establishing a prima facie case of discrimination by demonstrating
that:
"(1) she falls within the protected age group – that is, she
34
is at least 40 years old; (2) she performed her job satisfactorily;
(3) despite her satisfactory performance, she suffered a materially
adverse employment action; and (4) younger employees situated
similarly to the plaintiff were treated more favorably."
260 F.3d at 610.
Horwitz,
Additionally, in the wake of Gross, it is not
enough to show that age was a motivating factor - Hancock must show
that, but for her age, the adverse action would not have occurred.
Gross, 129 S.Ct. at 2351.
If Hancock establishes a prima facie
case, the burden of production shifts to Defendants who must
"articulate
a
legitimate,
nondiscriminatory
reason"
for
the
discharge. Krchnavy v. Limagrain Genetics Corp., 294 F.3d 871, 876
(7th Cir. 2002).
If Defendants make this showing, the burden then
shifts back to Plaintiff to show that Defendants’ proffered reason
is merely a pretext for discrimination.
Id.
Here, Hancock has failed to show that younger employees
similarly
situated
to
her
were
treated
more
favorably.
Additionally, even under this indirect method, there are no facts
in the record to show that Hancock was terminated because of her
age.
See Senske v. Sybase, Inc., 588 F.3d 501, 507-09 (7th Cir.
2009) (affirming summary judgment for employer where plaintiff
failed to establish that his age was the “but for” cause of his
termination). Finally, even assuming, arguendo, that Hancock could
make out a prima facie case of age discrimination, there is nothing
to
establish
that
Defendants’
35
reasons
for
terminating
her
employment were not legitimate, and there is no evidence the
reasons were pretextual.
Breach of Contract - State Law Claim
Hancock’s final claim is a state law breach of contract claim
(Am. Compl. Count VII). Upon due consideration, this state law
claim is DISMISSED WITHOUT PREJUDICE because the federal claims
have been dismissed prior to trial.
28 U.S.C. § 1367(c); Groce v.
Eli Lilly & Co., 193 F.3d 496, 501 (7th Cir. 1999) ("[I]t is the
well-established law of this circuit that the usual practice is to
dismiss without prejudice state supplemental claims whenever all
federal claims have been dismissed prior to trial.").
CONCLUSION
For the reasons set forth below, Defendants, St. Joseph
County and the St. Joseph County Community Corrections Program’s
Motion for Summary Judgment (DE #33) is GRANTED.
The Clerk is
ORDERED to DISMISS WITH PREJUDICE Plaintiff’s federal claims (Am.
Compl. Counts I-VI).
The Clerk is ORDERED to DISMISS WITHOUT
PREJUDICE Plaintiff’s state law claim for breach of contract (Am.
Compl. Count VII).
DENIED.
Defendants’ Motion to Strike (DE #42) is
Furthermore, the Clerk is ORDERED to CLOSE this case.
36
DATED: July 6, 2011
/s/ RUDY LOZANO, Judge
United States District Court
37
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