Jones v. LaPorte County Sheriff's Department et al
Filing
64
OPINION AND ORDER: GRANTING 31 MOTION for Summary Judgment by Defendants Scott Bell, LaPorte County Sheriff's Department, LaPorte Indiana County of, Stephen Vance and DISMISSING the amended complaint WITH PREJUDICE. GRANTING IN PART AND DEN YING IN PART 55 RULE 56 MOTION to Strike Affidavit of John Alexander Israel by Defendants Scott Bell, LaPorte County Sheriff's Department, LaPorte Indiana County of, Stephen Vance; GRANTED as to paragraphs 10-15 of Dr. Israel's affidavit, which are STRICKEN as inadmissible testimony. Signed by Judge Jon E DeGuilio on 3/29/2016. (lhc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
MICHAEL A. JONES,
Plaintiff,
vs.
LaPORTE COUNTY SHERIFF’S
DEPARTMENT, et al.,
Defendants.
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CAUSE NO. 3:13-CV-1330 JD
OPINION AND ORDER
This matter is before the Court on the: (1) Motion of Defendants for Summary Judgment,
filed by Defendants, LaPorte County Sheriff’s Department, the County of LaPorte, Indiana,
Sergeant Stephen Vance, individually and in his official capacity, and Captain Scott Bell,
individually and in his official capacity, on June 30, 2015 [DE 31]; and (2) Motion of
Defendants to Strike the Affidavit of John Alexander Israel, filed by Defendants, LaPorte County
Sheriff’s Department, the County of LaPorte, Indiana, Sergeant Stephen Vance, individually and
in his official capacity, and Captain Scott Bell, individually and in his official capacity, on
December 3, 2015 [DE 55]. For the reasons set forth below, the Motion for Summary Judgment
[DE 31] is GRANTED and the amended complaint is DISMISSED WITH PREJUDICE. The
Motion to Strike [DE 55] is GRANTED IN PART and DENIED IN PART. The Motion to
Strike [DE 55] is GRANTED as to paragraphs 10-15 of Dr. Israel’s affidavit, which are
STRICKEN as inadmissible testimony.
Background
Count I of the amended complaint alleges Defendants, LaPorte County Sheriff’s
Department and the County of LaPorte, Indiana, permitted and failed to address instances of
intentional racial discrimination against Plaintiff, Michael Jones, and subsequently terminated
Plaintiff’s employment, in violation of Title VII of the Civil Rights Act of 1964, as amended 42
U.S.C. Section 2000e, et seq. [DE 21 ¶ 23.] Count II alleges claims against Sergeant Stephen
Vance and Captain Scott Bell under Section 1983 in both their individual and official capacities
for “subjecting plaintiff to racially derogatory comments, failing to take action to correct such
comments, treating plaintiff differently as a result of his race, and ultimately firing Plaintiff from
his position as a jail officer” which Plaintiff alleges was in furtherance of a policy, custom or
practice of discrimination established or enforced by the defendants. [Id. ¶ 24.] Count III alleges
that Defendants violated the Americans with Disability Act, 42 U.S.C. § 12111, et seq., by
refusing to accommodate his medical restrictions. [Id. ¶ 26.] Last, Count IV alleges Defendants’
refusal to accommodate his medical restrictions and Plaintiff’s subsequent termination were in
retaliation for Plaintiff’s filing a charge of discrimination against the Defendants with the EEOC
and Plaintiff’s complaints regarding discriminatory treatment against Plaintiff and other AfricanAmericans. [Id. ¶ 28.]
The LaPorte County Sheriff’s Department, the County of LaPorte, Indiana, Sergeant
Stephen Vance, individually and in his official capacity, and Captain Scott Bell (hereinafter
“Defendants”) filed the instant motion for summary judgment on June 30, 2015 [DE 31],
requesting that all claims in the amended complaint be dismissed. Defendants received leave to
file an oversized memorandum, and filed their memorandum in support on July 30, 2015 [DE
2
37]. Plaintiff, Michael Jones, also received leave to file a memorandum in excess of the page
limit, and filed his response on October 10, 2015 [DE 50]. Finally, Defendants filed a reply on
December 4, 2015 [DE 61].
Defendants also filed a motion to strike the Affidavit of John Alexander Israel on
December 3, 2015 [DE 55]. That motion is also fully briefed. Consequently, both motions are
ripe for adjudication.
Undisputed Facts
Preliminarily, the Court notes that Defendants object to portions of Jones’ statement of
facts which are “rife with improper argument and should be disregarded.” [DE 61 at 2, citing
Potts v. A&A Mfgs. Co., Inc., 2010 WL 427762, at *1 (N.D. Ind. Jan. 29, 2010).] The Court has
attempted to parse out the improper arguments, assumptions, opinions, and inferences set forth in
Jones’ statement of facts, and merely focus on the facts supported by evidence. Both sides
presented lengthy statements of facts - the Court has attempted to set them forth below, noting
where there are disputes.
Michael Jones has lived and worked in Michigan City, Indiana, for most of his life [Jones
Dep. at 9-10]. He has been married for the past 40 years to his wife, Nedra, and has four grown
children [Jones Dep. at 7-8]. Jones was employed by the LaPorte County Jail for fifteen years as
a jail deputy, from May 27, 1997, through July 24, 2012 [Answer ¶ 8; Jones Aff. ¶ 2]. In 2002
or 2003, Jones was reassigned to the jail cleaning crew [Jones Dep. at 22]. He held the rank of
corporal from approximately 2004 through 2010 [Jones Aff. ¶ 2]. The title of “corporal” was
not formally recognized as a rank within the department’s chain of command [Bell Aff. ¶ 15;
Vance Dep. at 204-05] and Jones was never assigned to supervise other officers [Jones Dep. at
3
25]. Prior to May 17, 2010, Jones had positive work evaluations and no disciplinary actions,
and he also did not experience any incidents which he would regard as discriminatory or
retaliatory [Jones Dep. at 30; Jones Aff. ¶ 2; Ex. D00120, 122, 124 and 125].
On May 17, 2010, Jones, who is African American, and two African-American inmates,
Robert Jordan and Kenneth Lowe, who were members of Jones’ cleaning crew, were on an
elevator inside the jail. According to Jones, Defendant Steven Vance (who had just been told
that he was going to be promoted), stepped onto the elevator and announced to the other
occupants: “I remember at a time and date that bitches like you wouldn’t be riding with nobody
like me on an elevator.” [Jones Dep. at 39; Jordan Aff. ¶ 2; Vance Dep. at 26.] According to
Vance, he said, “You bitches need to get off the elevator when I get on” [Vance Dep. at 26, 28].
Vance denies that the statement was intended to be racially insensitive. Vance claims he was
just “in a good mood” and he was joking because he had just been told he was going to be
promoted, and no one was good enough to be riding on the elevator with him at the time [Vance
Dep. at 25-26, 105-06].
Jones and Jordan took the elevator statement as a racial slur and a reminder of the days
when African Americans were not allowed to ride on the same elevator with white people [Jones
Dep. at 40; Jordan Aff. ¶ 2]. Jones told Vance that he “owed us an apology” [Jones Dep. at 39].
Vance “didn’t say anything,” so Jones and the inmates went to Captain Scott Bell, the jail
warden, to complain, but Captain Bell was on the phone and not available [Jones Dep. at 39, 4243; Jordan Aff. ¶ 3]. According to Vance, he immediately went to the trustee block and
apologized to the inmates [Vance Dep. at 107]. However, Jordan denies the apology ever
occurred [Jordan Aff. ¶ 4]. Vance never made any other comments to Jones that he interpreted
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as racist [Jones Dep. at 48-50]. Jones claims that either later that day or the next, Jones reported
the incident to Captain Bell, and Bell said that “calling someone a racist is a serious, you know,
matter.” [Jones Dep. at 45.]
However, Bell claims he did not learn of the incident until he
received Jones’ charge of discrimination, filed in February of 2012 [Bell Dep. at 34-35; Bell
Aff. ¶¶ 19, 20].
The day after the elevator incident, Vance approached Robert Jordan and asked: “Are
you the guy that had a problem with what I said on the elevator?” [Jordan Aff. ¶ 4.] Jordan
reports that Vance was angry and told him something about having a degree in “diversity.” [Id.]
Vance claims that he wrote a report about the incident [Vance Dep. at 31] and that the report
should be in the file [Vance Dep. at 34]. However, in the 2,179 pages of material that the
County supplied in response to Plaintiff’s discovery requests, no such report was found [Jones
Aff. ¶ 4].
Shortly after the elevator incident, on June 1, 2010, Vance was promoted to Assistant Jail
Commander with the rank of Sergeant [Vance Dep. at 25]. Vance testified that his “first order of
business” after his promotion was to talk with Jones to clear the air about this incident [Vance
Dep. at 32-33]. Jones denies the conversation ever occurred [Jones Aff. ¶ 5].
No further investigation of the elevator incident was done until 2012, after Jones filed his
first EEOC complaint [Bell Aff. ¶¶ 20-26]. Bell claims he investigated the matter, met with
Vance, spoke with one of the inmates present, and even though Captain Bell “understood that the
statement was not intended to be or take as racially derogatory,” he still verbally reprimanded
Vance for an unprofessional comment [Bell Aff. ¶ 26; Bell Dep. at 3-35; Vance Dep. at 106]. A
verbal reprimand should be documented [Vance Dep. at 36], but no such documentation was in
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Vance’s employment file [Jones Aff. ¶¶ 4,7]. Bell describes Vance’s remark as “[j]ust kind of an
off-the-cuff joke that he made while at work that had offended Officer Jones.” [Bell Dep. at 34.]
Bell also said:
A. Well, I did what would have amounted to an investigation. I
took Mr. Jones' statement, talked to at least one of the inmates
involved, maybe both of them, I don't recall, and then I talked
to Sergeant Vance about it.
Q. You took a statement from Mr. Jones?
A. Well, his initial complaint, yes.
Q. Did you interview him in any other respect regarding that
incident?
A. If you're asking if we had more than one conversation about
the incident, I don't recall.
Q. Other than the written reports, do you recall any verbal report
that Mr. Jones gave you of the incident?
A. No.
Q. You said you interviewed one of the inmates that was
involved; is that correct?
A. Yeah, at least one of them.
Q. Was that person still an inmate of the jail when you
interviewed him?
A. Yes.
Q. Do you recall that person's name?
A. No, but it's in the record somewhere I'm sure.
Q. Was that Robert Jordan?
A. Sounds familiar, but I'm not going to – without reading
through the information I'm not going to verify that that was
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his name.
[Bell Dep. at 36-37.]
Captain Bell conducted a taped interview with inmate Robert Jordan on approximately
March 21, 2012 [Bell Aff. ¶ 23]. During the interview, Jordan (who was in custody at the time)
states that he was not offended by Vance’s statements on the elevator and he did not think they
were racist [Jordan Aff. ¶ 6]. After his release from custody, Jordan provided a different version
of how he took Vance’s elevator remarks, and how his interview with Bell occurred. Jordan
states:
I was an inmate at the LaPorte County Jail in approximately
May, 2010. I recall an incident when I was on the jail elevator with
one other inmate and Officer Michael Jones. I recall another Jail
officer, Steven Vance, getting on the elevator, looking at all three of
us, and stating: “I remember a time when three bitches like you
couldn’t ride an elevator with someone like me.” When the statement
was made, I took it as a racial slur. It was my belief then and now
that Vance’s use of the term “bitches” was the same as calling us
“Niggers” who had no right to ride on an elevator with a white man.
*
*
*
In March of 2012 I was scheduled to be transferred to the Indiana Department
of Correction’s Reception Diagnostic Center. When the bus came for
the transfer, I was kept from going to the RDC. Shortly after this,
Sgt. Vance came and got me off of the cell block. He said to the
other inmates “Don’t worry, he’s not snitching.” He then said to me
privately: “Do you know why you missed your bus [to the RDC]? It’s
because we need a statement from you.” Sgt. Vance made it clear to
me that if I wanted to leave the LaPorte County Jail, I needed to tell
Captain Bell that I did not have a problem with Sgt. Vance’s
statements on the elevator. He then took me to Captain Bell’s Office.
At Captain Bell’s office, Captain Bell said he wanted to talk
to me about the elevator incident involving Sgt. Vance. Before he
turned on a tape recorder, Captain Bell said “Sgt. Vance talked to you
about this, didn’t he?” The way Captain Bell said this added to my
belief that I would have problems if I did not say what he wanted to
hear. Captain Bell then turned on the tape and asked me about the
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incident and if I thought Sgt. Vance’s statements on the elevator were
racist. I said no because I was very fearful for my continued safety
at the LaPorte County Jail if I said anything other than what they
wanted to hear.
After this, Sgt. Vance took me back to the cell block. On
the way back he had the guards return to us a remote control for the
TV that had been previously confiscated on Sgt. Vance’s orders. This
was very unusual, and I took it as a reward for my cooperation. I was
allowed to leave on the next transport to the RDC.
[Jordan Aff. ¶¶ 2, 5-7.]
At the time of Vance’s remarks on the elevator, Jones held the rank of Corporal, which
he
had held since approximately 2004 [Jones Dep. at 25]. Vance states in his deposition that at the
time of the elevator incident Jones was not in his chain of command, but Jones “held a corporal
position so he was - - he would have had the authority to tell me what to do.” [Vance Dep. at 29.]
In November 2010, Jones’ rank was changed from corporal to administrative deputy because of a
reorganization [Jones Dep. at 57-58; Bell Aff. ¶ 27]. The jail removed the title of corporal from
the three jailers that held that title who did not supervise inmates [Id.; see also Mollenhauer Dep.
at 16-17]. Defendants claim Jones’ “rank” is nothing more than ceremonial because he only
supervised inmates, not other jail employees. The “rank” was something created by an earlier
administration and carried no extra pay or benefits [Mollenhauer Dep. at 17; Vance Dep. at 105,
126-127, 128; Bell Aff. ¶¶ 15, 16, 27, 30]. Captain Bell states in his affidavit: “When the title of
corporal was abolished, nothing else changed with respect to those jailers’ employment,
including their pay and employment benefits.” [Bell Aff. ¶ 30.]
In April 2011, Jones’ employment file reflects a written reprimand from Sergeant Vance,
accusing Jones of “failing to perform duties as assigned.” [Jones Aff ¶ 8, Ex. D00261, D00268.]
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Jones was told by Vance that Jones needed to prepare a daily report of his activities, which Jones
claimed he did, but he never saw this write-up until after it was disclosed in discovery [Jones
Aff. ¶ 8]. It is unsigned by Jones, despite the requirement in the LaPorte County Government
Policies and Procedures manual which reads:
Whenever a disciplinary action is documented, an employee will be
asked to acknowledge the action has been covered with them by their
signature on the original document. Refusal to sign a document will
necessitate the supervisor engaging a witness to acknowledge such
refusal by their signature on the original document. An employee can
be given a copy of the disciplinary document, once signed by the
employee, upon request. The employee’s signature will not signify
agreement with the contents of the document, rather the fact that the
document was covered with the employee. The employee will also
have an opportunity to provide a statement on the original document.
[2.0 Disciplinary Actions and Separations (D), Vance Ex. 3.]
On October 3, 2011, Jones was delivering supplies to Deputy Hilda Evans in the 2 South
Control Pod when another deputy, Erik McCreary, greeted him with “something like, ‘what you
doing, skillet?’” [Jones Dep. at 67.] Then McCreary changed it to “home skillet” and he said,
“Wsup Home Skillet.” [Id. at 67-68; Ex. 5, D00110 (October 20, 2011 letter from Jones to
Bell).] Deputy Evans verbally reprimanded McCreary, telling him that his comments were rude
and disrespectful and told him to apologize to Jones [Jones Dep. at 67-69].
Jones had heard of the term “skillet” and he thought that it was “racial” and meant “black
or the other word, you know . . . the N word.” [Id. at 68, 76.] Jones had not heard the term
“home skillet” before [Jones Dep. 68, 76]. Jones thought the term was racially charged and
reported the matter to Sergeant Vance [Id. at 69]. Sergeant Vance stated that he would
investigate the matter [Jones Dep. Ex. 5], and on October 6, 2011, Sergeant Vance informed
Jones that he had met with Captain Bell and based on definitions of “home skillet” pulled from
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urbandictionary.com, they did not believe the phrase was racially motivated. [Id.] At the time,
Captain Bell did not know the meaning of the phrase “home skillet,” so he investigated the term
and believed it was not a racial slur, but a slang term of endearment or another word for
“homey.” [Bell Aff. ¶¶ 34, 35.] Bell gave a copy of the printout from urbandictionary.com to
Jones [Jones Ex. 6]. According to Jones, when Jones disputed Vance’s take on the meaning of
“skillet” or “home skillet,” Vance got upset and Vance kept saying it was not racially motivated
[Jones Dep. at 73]. Then Jones met with Sergeant Vance and Captain Bell in Bell’s office, at
which time Captain Bell said that his “in-laws from Georgia greet people with the phrase ‘Home
Skillet.’” [Jones Ex. 6.] Jones was told he could take the matter up with the NAACP or Human
Resources, which Jones elected not to do [Jones Ex. 6]. Jones claims that he sent a letter to
Captain Bell, dated October 10, 2011, in which he expressed his displeasure with the way Vance
and Bell handled the situation [Jones Dep., Ex. 5], and put copies of this letter on the Chief
Deputy’s desk and into the Warden’s mail slot [Jones Dep. at 79-80].
Jones’ version of the events differs from Sergeant Vance’s. Vance testified as follows:
A. Well, that was my terminology that I made earlier. I am a
little quick to respond so I kind of jumped him, McCreary, a
little too prematurely for making a racial slur.
Q. Okay. So you thought it was a racial slur, too, at the time?
A. It sounded like one to me, yes.
Q. All right. So what did you do with McCreary? Did you give
him –
A. I gave him a reprimand.
Q. Okay. A verbal reprimand? A written reprimand?
A. It was written.
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Q. You gave him a written reprimand?
A. Uh-huh.
Q. That is a yes?
A. Yes.
Q. Okay. All right. Did you ask Mr. McCreary to apologize?
A. Yes. I made him write a letter.
Q. Okay. Did you prepare any reports regarding that situation?
A. Yes.
Q. And who did you give the report to?
A. Captain Bell.
Q. Did you ever have any meetings with Captain Bell regarding
the situation?
A. Yes.
Q. Who else was present at those meetings?
A. The supervisors of Deputy McCreary. It was an internal
investigation so it appeared at the time throughout -- I think
it went on for a couple of days.
Q. What did you determine in the course of that investigation?
A. Ultimately, in the end, we determined that it was not a racial
-- it was not a racial slur, or even delivered as such, however,
it was a situation where we deemed that it was still
unprofessional because it wasn't using titles that were being
– the titles that were given, you know, like deputy. It was
allowed to be what I refer to as, don't talk like an inmate. Be
a little more professional.
[Vance Dep. at 53-55.] Vance states he issued McCreary a written reprimand and ordered
McCreary to provide Jones with a written apology [Vance Dep. at 53, 115]. Sergeant Vance
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informed Captain Bell that Vance reprimanded McCreary for not using appropriate greetings and
titles within the Sheriff’s Office, and that McCreary provided Jones with a written apology [Bell
Aff. ¶ 33].
However, Jones states to his knowledge, Vance did not verbally reprimand McCreary,
and believes he did not order McCreary to apologize to Jones, either verbally or in writing [Jones
Dep. at 76-78; Jones Aff. ¶ 10]. Eric McCreary’s employment file does not mention the event,
and does not contain a write-up, reprimand, or written apology [Jones Aff. ¶ 10, Ex. D00925D01140]. There is a report in the employment file of a different deputy, Travis McKinney,
supposedly written up by Vance and dated “10-6-2011" identifying “Deputy Travis McKinney”
as the person who “uttered a remark that offended Mike Jones.” [Jones Aff ¶ 10, Ex. D01147.]
This report indicates that Vance reprimanded Deputy McKinney (not McCreary) for using an
unprofessional greeting. Captain Bell authored an undated “Report Supplement” which also
identified Travis McKinney as the deputy involved in the incident [Jones Aff. ¶ 10, Ex.
D01148].
Starting in late October 2011, Jones was absent from work [Bell Aff. ¶ 48]. Jones used
his accumulated sick time and vacation days to assist his wife following triple bypass surgery
[Jones Dep. at 84; Crosslin Dep, Ex. 20]. While Jones was absent, the administration needed to
assign someone else to perform his tasks [Vance Dep. at 123; Bell Aff. ¶¶ 48, 49]. Sergeant
Vance gave inmates the cleaning jobs that Jones had been doing [Vance Dep. at 123]. Vance
claims that having the inmates do what Jones had been doing was more efficient [Vance Dep. at
124].
On November 29, 2011, Jones applied for and received his first FMLA leave [FMLA
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Leave of Absence Request I, attached as Defs.’ Ex. I]. According to Jones, when he applied for
the leave, he was told during a meeting with Sergeant Vance and Captain Bell that he was being
demoted from administrative deputy to jail deputy [Jones Dep. at 84]. The reason that Captain
Bell gave for this change was that they did not know how long Jones’ wife was going to be sick
[Jones Dep. at 85-86]. Vance also voiced criticism of Jones’ work, which Jones claims was
inaccurate or based upon misinformation [Jones Dep. at 86-88]. Jones had never received a
negative evaluation prior to this time [Jones Dep. at 88, 92-93]. Jones followed up his
statements with a letter to Captain Bell dated December 7, 2011, and stamped received on
December 14, 2011 [Jones Aff. ¶ 12, Ex. D00108-109]. According to Defendants, Captain Bell
told Jones they would be transferring Jones to the position of corrections officer because they
needed someone to fulfill the administrative deputy role while Jones was gone and that the role
was being performed more efficiently and had changed [Bell Aff. ¶ 57; Jones Dep. at 86, 88, 90].
Jones’ pay remained the same [Jones Dep. at 93].
Jones returned from his FMLA leave to work in January 2012 [Jones Dep. at 108-09].
That same day, Corporal Stanz told him that Sergeant Vance wanted a maintenance report from
him – a report that Jones claims he had already provided to Sergeant Vance before he began his
FMLA leave [Jones Aff. ¶ 13]. Jones reminded Vance that he had already submitted the report,
to which Vance replied: “nuts and bolts,” but the following day, Corporal Stanz confirmed that
the report had been turned in [Jones Dep. at 90-91; Jones Aff. ¶ 13]. On January 13, 2012, Jones
needed to take his wife to a medical appointment during his shift. Jones claims he had cleared
this with the administration two days earlier, but a misunderstanding ensued after which he was
assigned to the control room [Jones Aff. ¶ 14]. Because he had not worked in the control room
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for several years, and needed training to do the job properly, Jones believed he was being set up
to fail [Jones Aff. ¶ 14]. Shortly after this incident, Jones filed his first EEOC complaint on
February 1, 2012 [Jones Aff. ¶ 14].
On or about February 8, 2012, Captain Bell learned that Jones was claiming he had a
recurrent eye condition [Bell Aff. ¶ 60]. Neither Captain Bell nor Sergeant Vance had
previously been aware of this condition [Bell Aff. ¶ 62; Vance Dep. at 116]. On February 9,
2012, Jones was stopped by Sergeant Vance who stated something like: “I didn’t know you had a
disability . . . I have one too. . . You have to come to a meeting.” [Jones Dep. at 98]. Vance told
Jones that he needed to meet with Captain Bell to discuss the disability. [Id.] According to
Vance, Bell had been given a copy of Jones’ EEOC complaint and this mentioned an eyesight
disability, so Vance was assigned to look into it [Vance Dep. at 86]. Jones thought it was short
notice for the meeting, and was hesitant to discuss the matter without representation since he had
already filed his EEOC complaint [Jones Dep. at 98-99, 102]. Jones therefore obtained the
assistance of Joan Chumley, a representative from the NAACP, and attended the meeting with
Vance and Bell the following day [Jones Dep. at 99, 102].
On February 10, 2012, Jones attended the meeting with Captain Bell, Sergeant Vance,
Corporal Vicki Stanz, and Chumly of the NAACP to discuss his disability and restrictions [Jones
Dep. at 100, 102; Bell Aff. ¶¶ 64-66]. Jones was asked to get additional documentation from his
eye doctor regarding any necessary restrictions [Jones Dep. at 104] and to provide the
Department with information and any need that Jones may have for an accommodation [Bell Aff.
¶ 66]. Following the meeting, Bell spoke with Jones’ shift commander, Sergeant Fick, and
determined the Department could preliminarily accommodate Jones’ vision disability by making
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him a “floater” within the jail, which involved very little computer work [Bell Aff. ¶ 67]. A
floater is a jail officer assigned to assist everyone within the jail [Vance Dep. at 124]. Floaters
have freedom of movement within the jail and do things like transport inmates, bring people to
and from processing, and respond to incidents [Id.]. Floaters needed to fill in if someone needs a
break [Id.].
Jones claims that a report regarding his eye condition was already in his file [Vance Dep.
Ex. 7, p. D00231], but Jones got another letter from his eye doctor and gave this to Captain Bell
on February 16, 2012 [Vance Dep. Ex. 7, p. D00023; Jones Dep. at 104]. The doctor’s letter
stated that Jones was unable to perform prolonged near vision tasks such as computer data entry
or extended reading and that, after each hour of near vision tasks, Jones required an hour or more
of distant vision tasks and more than the recommended ten minute break each hour [Bell Aff. ¶
68; Houck Feb. 14, 2012 letter, attached as Defs.’ Ex. L; Rogers Dep. at 105]. Captain Bell
discussed the restrictions with Sergeant Fick and determined that Jones could continue to serve
as a floater and that Fick should assign Jones to the control room, which required use of a
computer, only as needed and complying with the terms of the letter [Bell Aff. ¶ 69; Jones Dep.
at 104; Vance Dep. Ex. 7, p. D00016]. Bell shared the information and Dr. Houck’s letter with
the Human Resources Director, Sheriff, Sergeant Vance, and Jones’ other supervisors and told
them about his decision [Bell Aff. ¶ 70; Bell Feb. 16, 2012 e-mail, attached as Defs.’ Ex. M].
Jones did not complain to Bell about the accommodations and states that Captain Bell “went by
what the doctor stated” in assigning Jones the floater position [Jones Dep. at 108].
That same day, February 16, 2012, Bell received an unfavorable performance
evaluation of Jones that was apparently written by Sergeant Vance which covered the period of
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July 1, 2010 through January 1, 2012 [Vance Dep. Ex. 13, p. D00152]. Unlike the previous
evaluations in the file (which covered the period from June 1, 2010 through December 31, 2011),
this evaluation was not signed by Jones [compare Vance Dep. Ex. 13, pp D00120, D00122,
D00124, D00125 with D00152]. Nor was this evaluation seen by Jones until after it was
received in discovery [Jones Aff. ¶16]. This is contrary to LaPorte County’s Policies and
Procedures manual, which provides:
16.0 EMPLOYEE EVALUATION
Full-time and part-time employees shall be evaluated annually no
later than the end of the calendar year by their immediate supervisor
and/or department head, utilizing the form included in the Appendix.
It would be appropriate to evaluate the employee at their anniversary
date each year. Once the evaluation is completed, the evaluation
should be covered with the employee, signatures and dates should be
obtained and the original evaluation should be forwarded to the
Human Resources Department for placement in the employee’s
personnel file.
[Vance Dep., Ex. 4.] Although Bell’s stamp is on the February 26, 2012 evaluation, he could not
explain how Vance could be providing an evaluation covering more than a six month period
[Bell Dep. at 50-51].
After returning from FMLA leave, Jones did not have a working radio [Jones Dep. at
109]. Possessing a working radio was mandated by the Jail’s Standard Operating Guidelines
Manual [Vance Dep. Ex. 11, p. D00717]. However, Jones was not the only employee that had
issues with his radio [Vance Dep. at 117]. Sometime around June 1, 2010, the Department
started having problems with the radios working properly [Vance Dep. at 117]. Sergeant Vance
got many complaints about radios not working and received hundreds of other complaints about
radios not working from male and female, black and white officers [Vance Dep. at 80, 118-19].
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Finally, the Department had to buy new radios but there was not enough money in the budget to
issue every officer his or her own new radio, so the radios were kept at each station with the jail officers were no longer assigned personal radios [Vance Dep. at 82].
Jones’ attempts to get a working radio failed [Jones Dep. at 110-112], and after the
February 10 meeting, Jones’ Corporal told him to ask Vance again for a radio [Jones Dep.
at109]. At this time, Sergeant Vance was in charge of making sure officers had working radios
[Bell Dep. at 44, 73-74]. Vance responded by telling Jones to “get the hell out of his office.”
[Jones Dep. at 109, 110.] Jones believed that the reason he was not given a working radio was
directly related to the EEOC charge [Jones Dep. at 114, 115]. Jones did not receive a working
radio until after the hanging incident discussed below [Jones Aff. ¶ 17].
On April 17, 2012, Vance came into the control room where Jones was working with
another deputy, Felicia White. Vance looked at the log book and asked White why she hadn’t
logged a security check into the log book [Jones Dep. at 47-48]. The security check was not
overdue and had not yet been performed, so White responded that the check had not yet been
performed [Jones Dep. at 47-48, 51-56]. Vance demanded that White write Jones up for not
doing the check, and she refused because it was not yet time for it. Vance then threatened to
write both officers up [Jones Dep. at 48], and told White she was trying to protect Jones [Jones
Dep. at 52]. Vance then went to Jones’ shift Sergeant, Brian Nurnberg, and told him to write
Jones up, but Nurnberg also did not write up Jones [Jones Dep. at 55-56]. Five days later,
Nurnberg drafted a “verbal warning” form regarding this incident. The form is dated 4/22/12,
and indicates that Jones “refused to sign.” [Jones Aff. ¶ 18, Ex. D00104]. Jones never saw this
form until after it was produced in discovery [Jones Aff. ¶ 18]. The pages from the LaPorte
17
County Jail Floor Log for April 17, 2012 that were attached to the warning show that every 15
minutes from 0600 hours through 1215 hours, the security checks were made [Jones Aff.¶ 18,
Ex.D00105-107]. The “verbal warning” identifies the time of the offense as “1355 hrs” [Jones
Aff, ¶ 18, Ex. D00104], but there is no log sheet to supported that claim in the record [Jones Aff.
¶ 18].
On April 29, 2012, while Jones was still without a working radio, he was performing his
rounds on the S1 secure block. A young black inmate asked him for a Bible, which Jones got for
him [Jones Dep. at 116-17]. When Jones returned on his next security check, he found the
inmate hanging by a sheet from a sprinkler head inside his cell [Jones Dep. at 117]. Jones
had no radio, so he yelled and jumped up and down to get the attention of the guards in the
control room. They ultimately saw the commotion, opened the cell door and came to Jones’ aid
as he was trying to get the man down [Jones Dep. at 117-18]. Their efforts saved the inmate’s
life, and Jones was given a commendation for his actions [Vance Dep. at 65, Ex. 8; Bell Dep. at
46]. Jones testified that he was issued a working radio “immediately” after this incident [Jones
Aff. ¶ 17, 19].
This was the second time Jones witnessed a hanging at the jail. According to Jones, this
event affected him more because of the increased anxiety caused by the delay in being able to
help the inmate since Jones had no radio to call in the Code 9. Jones was upset that time was lost
while a young black man, the same age and complexion as Jones’ son, was hanging in his cell
[Jones Dep. at 118; Jones Aff. ¶ 20; see also Israel Aff, Ex. 2 (Intake Assessment)]. Jones
notified Corporal Vermilyer on April 30, 2012, that he needed counseling [Jones Aff. ¶ 20, Ex.
D00075 (First Report of Injury, p.2)], but none was provided [Jones Aff. ¶ 20]. He presented to
18
his family doctor, Anil Chawla on May 2, 2012, and Dr. Chawla suspected post-traumatic stress
disorder (PTSD) [Jones Aff. ¶ 20; Ex. 1], and referred Jones to John Alexander Israel, Psy.D., for
a psychological evaluation [Jones Aff. ¶ 20; Israel Aff. ¶ 3].
Dr. Israel saw Jones on May 7, 2012. The report from Dr. Israel’s initial evaluation notes
Jones’ experience of the hanging, the lack of a radio or any debriefing after the event, and the
growing feeling of racial hostility within the past year [Israel Aff. ¶ 4, Ex. 2]. Dr. Israel notes
these factors in diagnosing Jones with post-traumatic stress disorder [Id.]. He recommended that
Jones be placed off work at that point, but Jones continued working through June 1, 2012 [Israel
Aff. ¶ 5; Jones Aff. ¶ 21]. After a visit on June 1, 2012, Dr. Israel drafted a letter dated June 2,
2012, taking Jones off work, but indicating Dr. Israel’s belief that Jones’ symptoms could be
resolved within a relatively short time allowing him to return to work [Israel Aff. ¶ 5, Ex. 3].
On June 4, 2012, Jones requested and was granted FMLA leave [Jones Dep. at 120].
On July 11, 2012, Dr. Israel drafted another letter for Jones to take to his employer, releasing
him back to work on July 16, 2012 and noting that he planned to re-evaluate Jones on July 18,
2012 [Israel Aff. ¶ 6; Ex. 4]. Dr. Israel listed four (4) restrictions in this letter: (1) “limited
exposure to the cell where the incident occurred” (2) “limit hours to one shift of work,” (2)
“continue therapy with [Dr. Israel] to maintain his focus and reduce trauma,” and (4) “should
symptoms begin again, he should be allowed to leave work.” [Israel Aff. ¶ 6; Ex.4; Jones Dep.
at 122; Israel July 11, 2012 Letter.] Jones took this report to the jail that day and it was stamped
received by Sergeant Vance [Vance Dep., Ex. 9]. Dr. Israel also telephoned the LaPorte County
Jail and spoke to Sergeant Vance. He explained the restrictions to Vance and suggested to him
that if the restrictions needed to be modified, to call Dr. Israel [Israel Aff. ¶ 7]. Dr. Israel’s
19
impression was that Vance seemed completely disinterested in what the doctor had to say. [Id.]
Vance did say that he would take the matter up with the Jail Commander in an attempt to discuss
Jones’ conditions and restrictions [Id.]. Dr. Israel then called Captain Bell, but was told that
Captain Bell was unavailable [Id.]. Dr. Israel left a message asking Bell to call him regarding
the restrictions, but neither Sergeant Vance, Captain Bell, nor anyone else from the jail ever
called Dr. Israel [Id.].
On July 11, 2012, then-Chief Deputy Sosinski was contacted by Jail Administrative
Assistant Crosslin and advised that Jones had new work restrictions [Sosinski Dep. at 4].
Because Captain Bell and Sergeant Vance were part of the pending EEOC complaint filed by
Jones, Sosinski was asked to review Jones’ restrictions [Sosinski Dep. at 4]. Sosinski was also
aware of Jones’ previous eye-related restrictions and how they were accommodated by Captain
Bell [Sosinski Dep. at 8; Bell Feb. 16, 2012 e-mail]. Sosinski told Crosslin that the Department
could not accommodate the restrictions for liability and safety concerns [Sosinski Dep. at 6, 17;
Crosslin Dep. at 34, 37-38; Crosslin July 11, 2012 letter, Defs.’ Ex. W]. Sosinski was concerned
for the safety of Jones, the staff, and inmates, because if Jones was exposed to another traumatic
event or crisis within the jail, he would have to leave right away and that isn’t possible in jail
[Sosinski Dep at 6]. Sosinksi also worried about Jones only working one shift because if a crisis
arose, an officer may be required to stay over and “can’t just get up and leave and go home. You
have to stay there until that crisis is completely over.” [Sosinski Dep. at 18.] Lastly, Sosinski did
not think the Department could accommodate Jones’ restriction that he have limited exposure to
the cell where the incident occurred, because there could be another incident in that cell, and as a
floater, Jones would need to respond [Sosinski Dep. at 20].
20
On July 18, 2012, Dr. Israel saw Jones again and reports that he was doing significantly
better [Israel Aff ¶ 8]. Jones told Dr. Israel that he received a letter from human resources
stating
that they would not honor the accommodations that Dr. Israel had requested [Israel Aff ¶ 8].
According to Sergeant Vance, Captain Bell was out on FMLA leave when Dr. Israel’s
restrictions were received [Vance Dep. at 74]. Vance claims that while Captain Bell was out on
FMLA leave, he was serving in his capacity for several months [Vance Dep. at 77]. Bell
testified that his medical leave did not begin until February 2013, and that if Vance and Sosinski
said otherwise, they were mistaken [Bell Dep. at 75-76]. Vance states he did not talk to Dr.
Israel about the restrictions [Vance Dep. at 74]. Bell could not recall if he saw Dr. Israel’s July
11, 2012 letter [Bell Dep. at 71], nor did he think he ever spoke to Dr. Israel about Jones’
restrictions [Bell Dep. at 71]. Nevertheless, with regard to the July 11, 2012 letter, he stated that
“there was just no time frame on it.” [Bell Dep. at 72]. Bell claims he made specific requests for
more information from Jones, either verbally or in writing [Bell Dep. at 21-22], but no such
requests appear anywhere in the record, and Jones denies ever receiving any such requests, either
verbally or in writing [Jones Aff. ¶ 23].
According to Vance, Bell told him to take the accommodations request to Chief Sosinski
because Bell was on FMLA leave and wanted the matter taken to the next level of the chain of
command [Vance Dep. at 73]. Sosinski states that Jeanne Albers (now Crosslin), called him on
the phone and told him that the matter was being brought to her because Jones had named both
Vance and Bell in an EEOC complaint [Sosinski Dep. at 4-5].
Chief Sosinski denies ever having seen Dr. Israel’s letter or reviewing any other medical
21
documentation at the time he made the decision that Jones’ accommodations could not be met,
stating specifically: “I have reviewed them [the medical documents] before this deposition, but
not during that time I had spoken with Mrs. Crosslin.” [Sosinski Dep. at 5]. Sosinksi’s
knowledge of any restrictions came strictly through Crosslin and he did not independently
review any medical reports or letters or notes [Sosinski Dep. at 6]. Sosinski says he did not
speak with Vance, Bell, Jones or Dr. Israel [Sosinski Dep. at 7], and his entire involvement with
the decision was during a phone call between himself and Crosslin [Sosinski Dep. at 9]. He
denied ever seeing the written version of his decision until “a couple weeks or so before this
deposition.” [Sosinski Dep. at 9, Ex.10, p. D00021-D00022.] Crosslin believes that she met in
person with Sosinski, brought him the various medical records and reports [Crosslin Dep. at 3637], and that Sosinski reviewed and approved the July 11, 2012 letter before it was sent “or else
it wouldn’t have gone to HR.” [Crosslin Dep. at 38]. Crosslin believes her meeting with
Sosinksi may have been about 10-15 minutes if she remembered correctly [Crosslin Dep. at 38].
She cannot remember if they called Jones or Dr. Israel. [Crosslin Dep. at 38-39].
Sosinski also noted that at the time of Jones’ request, there was no County policy
regarding the process to be followed in deciding whether an accommodation under the ADA
could be made [Sosinski Dep. at 10]. This was the first time he had been called upon to make an
accommodations decision with respect to the jail [Sosinski Dep. at 9-10], and he had not
received any type of training or instruction in the process for handling ADA accommodation
requests [Sosinski Dep. at 12]. Joyce Leon, the Director of Human Resources at the time,
testified: “[t]he key is to try to provide the accommodation if at all possible” with the goal of
getting the employee back to work [Leon Dep. at 23-24]. To this end, “[s]ometimes the doctors
22
are called and we send over the job description, ask the doctor to take a look at the essential
functions and ask them what they think.” [Leon Dep. at 24-25.] She did not know if that was
done in Jones’ case, but it had been done in the past [Leon Dep. at 25].
The next day, Jones was sent a letter which stated as follows: “[o]n July 11, 2012, you
provided to this office your release with restrictions back to work on July 16, 2012. With the
restrictions from John Alexander Israel Consulting Inc. and the restrictions from Houck Eye
Care and refractive Surgery Center, we, unfortunately, are unable to accommodate your return to
work on July 16.” [Vance Dep. Ex. 10, p. D00148.] Jones did not have any conversations with
anyone at the Department regarding his medical restrictions and did not provide anyone at the
County with further information regarding his medical restrictions other than the information
contained in the July 11, 2012 letter from his doctor [Jones Dep. at 125-28].
On July 24, 2012, Jones was sent a certified letter telling him that his employment was
terminated that day because he had exhausted his FMLA leave and Jones was not entitled to any
additional leave under the FMLA [Vance Dep. Ex. 5; Jones Dep. at 130; Crosslin Dep. at 20;
Leon July 24, 2012 Letter, Defs.’ Ex. Y]. Captain Bell testified that the Sheriff had the power to
extend Jones’ time off [Bell Dep. at 25]. Jones believes one other employee had been given
extended time off, K.L.1, a Caucasian female whose employment was extended after her FMLA
leave was exhausted [Jones Aff, ¶ 25; Bell Dep. at 22-24; Jones Dep. Ex. 4, ¶ 6].
Dr. Israel, Jones’ treating psychologist, testified in his affidavit that he was familiar with
Indiana’s workers compensation system and because Jones’ post-traumatic stress syndrome was
1
Defendants note this particular employee’s situation was brought up in another case as well, McMillion v.
Mollenhauer, No. 3:12-CV-673-TLS, 2014 WL 6809017 (N.D. Ind. Dec. 2, 2014), and her information was filed
under seal and subject to a protective order pursuant to HIPAA in that case. [DE 61.] In an abundance of caution, to
protect the employee’s privacy, this Court will use the employee’s initials.
23
directly caused by a work-related incident, he could have continued to have been off work under
workers compensation without affecting his time under the FMLA [Israel Aff. ¶ 14]. Jones
stated in his affidavit that the County employee manual allowed employees to be placed on
voluntary furlough (unpaid time off that allowed them to keep their job), but this was not
discussed with, or offered to Jones [Jones Aff ¶ 26, Ex. D00625-627].
According to the July 11, 2012 “memorandum” of Crosslin’s meeting with Sosinski
(which Sosinski may or may not have seen): “Chief Sosinski stated that under the following
circumstances this staff member cannot effectively perform the duties that are required of him at
the LaPorte County Jail. Specifically, incident management and daily activities could require
any staff member to be held over for more than a one-shift period of time. Exposure to and
managing traumatic events are a required part of the job duties of a jail officer.” [Vance Ex. 10,
p. D00021]. Jones stated that in the last six months of his tenure at the County, he was rarely
allowed to work any overtime [Jones Aff. ¶27; Crosslin Dep., Ex. 20, at 1, 3]. Sheriff
Mollenhauer testified that the jail had to eliminate most overtime because of budgetary cuts
[Mollenhauer Dep. at 27-28].
Dr. Israel also addressed the overtime issue in his affidavit:
With respect to the possibility that a jail guard could be “held over for
more than one shift period of time,” the two-day restriction that I
recommended for Mr. Jones was that he not be assigned a doubleshift
during those two days. If he needed to be held over, he could
have been assigned to a lower-risk duty, such as in the control room,
in receiving, or in laundry or food service during the overtime, and he
could have been released from duty as soon as a replacement arrived.
This could have been easily explained if someone at the jail had
simply spoken to me.
[Israel Aff. ¶12]. Regarding Chief Sosinski’s second point, Dr. Israel stated in his affidavit that:
24
As far as “exposure to and managing traumatic events,” I would not
have suggested he return to work at all if he had to be completely free
from such exposure. I asked that his exposure to the specific cell
where the hanging occurred be “limited.” I would add that if this was
really a concern of the employer’s, then I do not understand why Mr.
Jones was not offered counseling by the employer after the hanging
event. Normally, after any such traumatic event, officers, as well as
inmates who were involved, would be offered counseling. The failure
to do so is contrary to standard correctional practices. The fact that
counseling was not offered to Mr. Jones, despite his request for it,
only served to exacerbate his symptoms and reflects a disregard for
this concern.
[Israel Aff. ¶12].
Discussion
Summary judgment must be granted when “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). A genuine
dispute of material fact exists when “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Not every dispute between the parties makes summary judgment inappropriate; “[o]nly disputes
over facts that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Id. In determining whether summary judgment is
appropriate, the deciding court must construe all facts in the light most favorable to the
nonmoving party and draw all reasonable inferences in that party’s favor. Ogden v. Atterholt,
606 F.3d 355, 358 (7th Cir. 2010). “However, our favor toward the nonmoving party does not
extend to drawing inferences that are supported by only speculation or conjecture.” Fitzgerald v.
Santoro, 707 F.3d 725, 730 (7th Cir. 2013) (citing Harper v. C.R. England, Inc., 687 F.3d 297,
306 (7th Cir. 2012)).
A party opposing a properly supported summary judgment motion may not rely on
25
allegations or denials in her own pleading, but rather must “marshal and present the court with
the evidence she contends will prove her case.” Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d
651, 654 (7th Cir. 2010). If the nonmoving party fails to establish the existence of an essential
element on which he or she bears the burden of proof at trial, summary judgment is proper.
Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006).
I.
Motion to Strike
Defendants filed a motion to strike the affidavit of Jones’ treating psychologist, John
Alexander Israel (hereinafter “Dr. Israel”) [DE 55]. Defendants argue that Jones failed to
properly disclose Dr. Israel, and that his testimony fails to meet the minimal standards of Rule
702 and the requirements established by Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579,
589 (1993). 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) (“In general, motions to strike are disfavored.”).
Jones did not disclose Dr. Israel as a witness, he did not provide any summary of Dr.
Israel’s opinions or testimony, and he did not provide an expert report for him. Plaintiff’s expert
disclosure deadline was October 31, 2014 [DE 23, 24]. The beginning portion of Dr. Israel’s
affidavit discusses his treatment and assessment of Jones [Israel Aff. ¶¶ 1-9]. But the ending
paragraphs contain different information. In paragraph 10, Dr. Israel testifies about the July 11,
2012 letter written by Jeanne Albers (now Crosslin), which he had not seen “prior to its being
supplied to me a few weeks ago” stating “[i]f anyone had contacted me regarding the concerns
reflected in this letter, those concerns would have been addressed.” [Id.] In paragraph 11, Dr.
26
Israel asserts “as reflected in my CV, I have worked in the correctional field since 1984" and
goes on to say he is “familiar with the essential duties of jail guards assigned to work in various
capacities within a jail environment, including the control room and receiving, and it is my
opinion that the restrictions I placed on Mr. Jones in my 7/11/12 letter would not have interfered
with the essential functions of those jobs as they are normally performed.” [Id. ¶ 11.] Dr. Israel
then opines about essential functions and practices in the jail, including if Jones needed to be
held over to more than one shift, “he could have been assigned to a lower-risk duty, such as in
the control room, in receiving, or in laundry or food service during the overtime.” [Id. ¶ 12.] In
paragraph 13, Dr. Israel states, “if the employer had made any effort to contact me regarding the
restrictions, it is virtually certain that the restrictions could have been structured to allow Mr.
Jones’ return to work both during the proposed trial period, and on a long-term basis.” [Id. ¶ 13.]
In paragraph 14, he testifies about the Indiana’s workers compensation system, and lastly, Dr.
Israel contends that “[u]nder the circumstances, it is essential for the employer to explain to the
employee any options that the employee might have available that would allow the employee to
maintain his employment.” [Id. ¶¶ 14-15.]
First, Defendants argue that Dr. Israel’s affidavit should be deemed inadmissible because
Jones did not properly identify Dr. Israel in pre-discovery disclosures or discovery responses.
However, as Jones aptly points out, Defendants themselves identified Dr. Israel as a person with
discoverable information. In Defendants’ Rule 26 disclosures, item A(27) states:
Dr. John Israel [sic.] 107 Woodland Court, Suite B, Michigan City,
Indiana 46360, (219) 877-4758, is likely to have discoverable information
concerning the facts relevant to the allegations in Plaintiff’s Complaint,
including but not limited to Plaintiff’s diagnosis and treatment, workrelated restrictions, statements made by Plaintiff, and Plaintiff’s
ability/inability to return to work.
27
[DE 62-1, at 5-6.] Plaintiff’s Rule 26 disclosure then states that Jones’ witnesses include: “All
defendants and witnesses identified by defendants.” [DE 56-1 at 2.] Moreover, Jones also
supplied Defendants with the letter from Dr. Israel dated July 11, 2012 regarding Jones’
restrictions and Jones’ medical chart and bills from Dr. Israel [DE 56-1 at 2-3]. Additionally,
Jones identified Dr. Israel in response to Defendants’ interrogatories, and the responses were
served on September 19, 2014, ten months prior to the close of discovery [DE 56-2, at 7-8;
Answer to Interrogatory No. 15, p. 11]. Defendants took Jones’ deposition eight months prior to
the close of discovery, and questioned him about his treatment by Dr. Israel and about the July
11, 2012 letter [Jones Dep. at 120-24]. So, Defendants were aware of the existence of Dr. Israel.
However, the inquiry does not end there. Defendants also urge that Dr. Israel’s affidavit
is inadmissible because the doctor was never disclosed as an expert witness. “[A] party must
disclose to the other parties the identity of any witness it may use at trial to present evidence
under Federal Rule of Evidence 702, 703, or 705.” Fed. R. Civ. P. 26(a)(2)(A). However, only
those witnesses retained or specially employed to provide expert testimony must submit an
expert report complying with Rule 26(a)(2)(B). Fed. R. Civ. P 26(a)(2)(B). In this case, Jones
contends that Dr. Israel was only a treating physician, and the majority of his affidavit is based
upon his personal observations of Jones, phone conversations with Defendants, and personal
knowledge regarding the duties of correctional officers. See Zurba v. United States, 202 F.R.D.
590, 591-92 (N.D. Ill. 2011) (citing Richardson v. Consolidated Rail Corp., 17 F.3d 213, 218
(7th Cir. 1994)) (“a treating physician is not considered a retained expert for purposes of Rule
26(a)(2), and thus need not submit a report, if his testimony is based on observations made
during the course of treatment, the testimony was not acquired or developed in anticipation of
28
litigation or for trial, and the testimony is based on personal knowledge.”).
The Court agrees with Jones that paragraphs 1-9 of Dr. Israel’s affidavit consist of
testimony of a treating physician, who is providing testimony within determinations and
observations made during his treatment of Jones. However, a treating physician is more than a
fact witness for purposes of disclosure if his or her testimony consists of opinions based upon
“scientific, technical, or other specialized knowledge,” regardless of whether those opinions
were formed during the scope of interaction with the plaintiff prior to litigation. Musser v.
Gentiva Health Servs., 356 F.3d 751, 756 n.2 (7th Cir. 2004).
In Musser, the plaintiffs made the same argument that Jones makes here - that disclosure
of the identity of the treating physician and an opportunity to depose was sufficient to satisfy the
requirements of Rule 26(a). The Plaintiffs argued “it would be a pointless formality to disclose
in writing a list of names and persons already known to [Defendant] through prior discovery, this
time with the designation ‘expert witness.’” [Id. at 757.] The Seventh Circuit rejected that
argument, explaining the mere fact that an identity of a witness is disclosed and there is an
opportunity to depose does not alleviate the mandatory disclosure requirement - the rules
“demand this formal designation.” [Id. at 755-57.] The Musser court instructed that
“[d]isclosing a person as a witness and disclosing a person as an expert are two distinct acts.”
[Id. at 757.] The Seventh Circuit is clear that treating physicians who are offered to provide
testimony outside of those determinations made in the course of treatment are required to submit
a full expert report in accordance with Rule 26(a)(2). See Meyers v. Nat’l R.R. Passenger Corp.,
619 F.3 729, 734-35 (7th Cir. 2010) (finding treating physician who is offered to provide expert
testimony as to the cause of plaintiff’s injury, but who did not make that determination in the
29
course of providing treatment, was required to submit expert report); Johnson v. Norfolk S. Ry.
Co., No. 3:12-CV-102-JD, 2015 WL 3738545, at *3 (N.D. Ind. June 15, 2015) (“[t]reating
physicians, if disclosed as fact witnesses, may testify only regarding personal observations,
examinations, and diagnoses completed during the course and treatment and contained within the
relevant medical records”); Moriconi v. Koester, No. 11-cv-3022, 2015 WL 328590, at *1 (C.D.
Ill. Jan. 26, 2015) (“The properly disclosed treating physicians may testify as fact witnesses
concerning examination, diagnoses, and treatment [of Plaintiff] but may not present expert
testimony.”); Vandivier v. United States, No. 1:12-CV-00260-TWP, 2013 WL 6058902, at *3
(S.D. Ind. Nov. 16, 2013) (“Failure to disclose a treating physician as an expert will permit them
to testify only as a fact witness, not an expert witness.”).
In this case, the Court finds that the information provided to Dr. Israel during this
litigation, after he had completed treatment of Jones, cannot be a determination made in the
course of treatment [Israel Aff. ¶¶ 10-12]. Additionally, Dr. Israel’s opinions about the jail,
which he claims are based upon his specialized knowledge and experience with correctional
departments, and his testimony about the requirements for different positions within the jail, inhouse counseling, and the Indiana Workmen’s Compensation Act, are not opinions made during
the course of treatment. [Id. ¶¶ 11-15]. Moreover, when an outside witness, not involved in the
employment decision, offers opinions as to what may or may not be accommodated based upon
the witnesses own purported specialized knowledge, that person is an expert, subject to Rule
702. See Steffy v. Cole Vision Corp., No. 05-C-0204, 2008 WL 7053517, at *5 (E.D. Wis. Jan. 9,
2008) (finding treating physician not qualified to draw conclusions regarding work place
accommodations under the ADA or to offer opinions on their reasonableness).
30
Jones also had an affirmative obligation to provide “summary disclosures in place of
complete expert reports, of the opinions to be offered by expert witnesses who were not retained
or specially employed to give expert testimony.” Fed. R. Civ. P. 26(a)(2)(C) (requiring a witness
who is expected to present evidence under Federal Rule of Evidence 702, 703, or 705, who is not
required to provide a written report, to still disclose the subject matter on which the witness is
expected to present evidence and a summary of the facts and opinions to which the witness is
expected to testify). Jones argues there was sufficient disclosure because of the production of
Dr. Israel’s July 11, 2012 letter and the medical chart, but clearly, nothing in these documents
discusses the opinions in paragraphs 10-15 of the affidavit regarding jail environments, whether
Jones’ restrictions interfered with the essential functions of jail guards, or Dr. Israel’s
correctional experience.
If a party fails to disclose a witness as required, that “party is not allowed to use that
information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the
failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). Jones carries the
burden of showing his non-disclosure was either substantially justified or harmless. Finley v.
Marathon Oil Co., 75 F.3d 1225, 1230 (7th Cir. 1996). Jones has put forth no justification for
the failure to disclose. The failure to disclose Dr. Israel as a fact witness may be considered
harmless because Defendants knew about the existence of Dr. Israel and anticipated his
testimony about his diagnosis and treatment of Jones. However, the Court views the testimony
in paragraphs 10-15 of Dr Israel’s affidavit as specialized knowledge subject to the requirements
of Federal Rule of Evidence 702, and the lack of disclosure does prejudice Defendants in this
case and was not harmless. Courts are directed to consider “surprise or prejudice to the party
31
against whom the evidence is offered ” when determining whether to permit undisclosed
evidence. David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003). As the Musser court
explained, “[t]he failure to disclose experts prejudiced [the opponent] because there are
countermeasures that could have been taken that are not applicable to fact witnesses, such as
attempting to disqualify the expert testimony on grounds set forth in Daubert . . . retaining
rebuttal witnesses, and holding additional depositions to retrieve the information not available
because of the absence of a report.” Musser, 356 F.3d at 757-58. Defendants have already gone
through the time and expense of briefing the instant lengthy motion for summary judgment. It
would not be fair to excuse the non-disclosure, and indeed, Jones’ argument essentially “reduces
Rule 37 to a dead echo and would empower a party, not the court, to set expert discovery
deadlines.” White v. Geradot, No. 1:05-CV-282, 2008 WL 4238953, at *4 (N.D. Ind. Sep. 10,
2008).
Consequently, Dr. Israel may testify in his affidavit as a fact witness concerning his
personal observation, examination, diagnosis, and treatment of Jones, but not about information
that goes beyond his individual observations made during his personal treatment of Jones and
would amount to expert opinions as defined in Federal Rule of Evidence 702. See, e.g., Johnson
v. Target Corp., 487 Fed. Appx. 298, 301 (7th Cir. 2012) (district court properly limited treating
physician to factual testimony because plaintiff did not disclose treating physician as an expert).
Paragraphs 10-15 of Dr. Israel’s affidavit are hereby stricken as inadmissible testimony.2 II.
2
Defendants also argue that Dr. Israel’s opinions should be excluded under Rule 702 because they do not
meet the standards set forth by Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999), and Daubert v. Merrell
Dow Pharms., Inc., 509 U.S. 579, 589 (1993). [DE 56 at 10-16.] Defendants contend that Dr. Israel has no reliable
basis for his opinions about possible accommodations, and he is not qualified to offer opinions about Jones’
qualifications for workers compensation or opinions on employer’s obligations under the ADA. Jones makes no
response whatsoever to these arguments, and Dr. Israel’s testimony could be stricken on this basis as well. Finally,
32
Motion For Summary Judgment
A.
Timeliness
First, Defendants contend that Jones’ Title VII claims based upon any incidents occurring
before April 1, 2011, are barred by the 300-day statute of limitations. See 42 U.S.C. § 2000e5(e); Minor v. Ivy Tech State Coll., 174 F.3d 855, 857 (7th Cir. 1999). Jones filed his first
charge of discrimination with the EEOC on February 1, 2012 [DE 21 at ¶ 12]. Thus, Defendants
argue Title VII excludes litigation of any alleged discriminatory acts occurring before April 1,
2011 (which would include the elevator incident which happened on May 17, 2010). In
response, Jones argues he is not asserting independent claims based upon actions that occurred
outside of Title VII’s 300 day limitations period or 42 U.S.C. § 1983's two year limitations
period. [DE 50 at 24.] Rather, Jones contends that Plaintiff merely draws inferences of
discrimination based upon two matters outside the limitations period (the 2010 elevator incident
and Jones’ loss of rank as corporal), but they are not used as independent claims, merely “as part
of the mosaic of circumstantial evidence needed to sustain Jones’ burden of proof.” [DE 50 at
24.] This is proper. See, e.g., Malin v. Hospira, Inc., 762 F.3d 552, 561 (7th Cir. 2014) (stating
Title VII does not “bar an employee from using the prior acts [that fall outside the statute of
limitations] as background evidence in support of a timely claim . . . We have of course followed
that directive in many cases.”).
B.
Title VII Claim for Retaliation
Jones specifically states in his opposition memorandum that: “[w]hile each individual
even if paragraphs 10-15 of Dr. Israel’s affidavit were admitted, the Court notes that these portions of the affidavit
still do not establish that certain positions existed within the LaPorte County Sheriff’s Department or that they were
vacant and available for Jones.
33
discriminatory or retaliatory act could be separately actionable, the ultimate harm that Jones
suffered was the loss of his job. Therefore, for all practical purposes, all of Jones’ claims are
merged into two basic causes of action: (1) Retaliation for complaining about workplace
discrimination, and (2) Violation of the Americans with Disabilities Act.” [DE 50 at 25.] This
Court turns its attention to the retaliation claim under Title VII first.
Title VII prohibits employers from retaliating against employees who engage in activity
protected by the statute. 42 U.S.C. § 2000e-3(a). The rubric has been that there are two ways
plaintiffs may prove their claims - the “direct” or “indirect” methods of proof. Castro v. DeVry,
786 F.3d 559, 564 (7th Cir. 2015). Yet recently, the Seventh Circuit has questioned these
standards. In Hitchcock v. Angel Corps, Inc., 718 F.3d 733, 737 (7th Cir. 2013), the Seventh
Circuit stated that it:
Hasten[ed] to join in the growing chorus of opinions in this circuit, signed
onto by a majority of active judges, that have expressed frustration with
the confusing “snarls and knots” of this ossified direct/indirect paradigm,
and that have suggested a more straight-forward analysis of whether a
reasonable jury could infer prohibited discrimination. See Coleman v.
Donahoe, 667 F.3d 835, 863 (7th Cir. 2012) (Wood, J., concurring) (“By
now, . . . the various tests that we insist lawyers use have lost their utility .
. . In order to defeat summary judgment, the plaintiff one way or the other
must present evidence that she is in a class protected by the statute, that
she suffered the requisite adverse action (depending on her theory), and
that a rational jury could conclude that the employer took that adverse
action on account of her protected class, not for any noninvidious reasons.
Put differently, it seems to me that the time has come to collapse all these
tests into one.”).
As such, the main question is whether a reasonable trier of fact can infer retaliation. Castro,
786 F.3d at 564.
Jones specifies that he is proceeding under the direct method of proof [DE 47-1 at 25].
“Under this method, plaintiffs must offer evidence of three elements: (1) they engaged in
34
protected activity, (2) they suffered adverse employment actions, and (3) there was a causal
connection between the protected activity and the adverse employment actions.” Castro, 786
F.3d at 564 (citing Greengrass v. Int’l Monetary Sys., Ltd., 776 F.3d 481, 485 (7th Cir. 2015)).
The first two elements are satisfied. Jones argues that he was retaliated against after he filed his
initial EEOC claim [DE 50 at 25]. Jones did file an EEOC complaint, which is a protected
activity, and he was terminated from his job, which is an adverse employment action.
The issue is whether Jones has offered sufficient evidence to create a genuine issue of
material fact as to whether the filing of his complaint caused his termination. To establish the
causal link, Jones does not claim he has any direct evidence of retaliation (indeed, there is no
admission from the Department that they fired him because of his complaints about racial
discrimination). Rather, Jones relies on circumstantial evidence. Circumstantial evidence
suffices if “a convincing mosaic of circumstantial evidence” would permit a reasonable trier of
fact to infer retaliation by the employer. Rhodes v. Illinois Dep’t of Transp., 359 F.3d 498, 504
(7th Cir. 2004). In retaliation cases, like this one, the Seventh Circuit has recognized three
categories of circumstantial evidence available to a plaintiff using this convincing mosaic
approach. Coleman v. Donahue, 667 F.3d 835, 860 (7th Cir. 2012). The categories include: (1)
evidence of suspicious timing; (2) evidence that similarly situated employees were treated
differently, and (3) evidence that the employer’s proffered reason for the adverse employment
action was pretextual. Id. at 860. Plaintiffs may use these together, or each category of
circumstantial evidence can suffice by itself to preclude summary judgment, depending upon its
strength. Id. at 862.
35
1.
Suspicious Timing
Suspicious timing can sometimes raise an inference of a causal connection, but temporal
proximity alone is “rarely sufficient” to establish causation.” Castro, 786 F.3d at 565 (quoting
O’Leary v. Accretive Health, Inc., 657 F.3d 625, 635 (7th Cir. 2011)); see also Mobley v. Allstate
Ins. Co., 531 F.3d 539, 549 (7th Cir. 2008) (“Evidence of temporal proximity, however, standing
on its own, is insufficient to establish a causal connection for a claim for retaliation”); Sauzek v.
Exxon Coal USA, Inc., 202 F.3d 913, 918 (7th Cir. 2000) (“Speculation based on suspicious
timing alone . . . does not support a reasonable inference of retaliation.”); E.E.O.C. v. Yellow
Freight Sys., 253 F.3d at 943, 952-53 (7th Cir. 2001) (affirming summary judgment in favor of
defendant in part because six-week gap between filing of EEOC charge and termination was
insufficient to establish retaliation); Jasmantas v. Subaru-Isuzu Auto., Inc., 139 F.3d 1155, 115758 (7th Cir. 1998) (holding three-month gap between employee’s filing of EEOC charge and her
discharge was insufficient to link filing of the charge to termination without other evidence);
Povey v. City of Jeffersonville, Ind., 697 F.3d 619, 624 (7th Cir. 2012) (finding plaintiff’s
termination three weeks after filing a complaint, by itself, not sufficient to create a genuine issue
of material fact to support a retaliation claim).
Jones claims that there is suspicious timing in this case because after Jones filed his
EEOC complaint, “phony evaluations and false write-ups start[ed] to appear in Jones’ file,
culminating with his discharge four months later.” [DE 50 at 34.] However, the Seventh Circuit
has made it clear that a warning, write up, or negative performance evaluation does not amount
to an “adverse employment action.” Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901-02
(7th Cir. 2003) (“without more, a performance evaluation of this type does not amount to an
36
adverse employment action.”); see also Grube v. Lau Indus., Inc., 257 F.3d 723, 729-30 (7th Cir.
2011) (“Unfair reprimands or negative performance evaluations, unaccompanied by some
tangible job consequence, do not constitute adverse employment actions.”). To be “materially
adverse [it] must carry with it a tangible job consequence.” Williams v. Lovchik, 830 F.Supp.2d
604, 620-21 (S.D. Ind. 2011); Haywood v. Lucent Tech., Inc., 323 F.3d 524, 532 (7th Cir. 2003)
(stating in the retaliation context, it is “well established” that negative performance evaluations
alone do not constitute adverse employment actions). Jones has provided no explanation for
how an unsigned or misdated unfavorable evaluation dated February 16, 2012, or the April 17,
2012 write up which carried no consequences, are examples of suspicious timing of an adverse
employment action. Nor has Jones shown that the negative evaluations impacted the decision to
terminate him because the Department’s proffered reason for firing Jones was exhaustion of his
medical leave.
To the extent that Jones hangs his hat on the fact that he was terminated approximately
five months3 after filing the EEOC complaint, this fact alone does not support a reasonable
inference of retaliation. Jones has not provided evidence to show a causal link between his filing
of the EEOC charge and his termination. See Sauzek, 202 F.3d at 918 (“[s]peculation based on
suspicious timing alone . . . does not support a reasonable inference of retaliation; instead,
plaintiffs must produce facts which somehow tie the adverse decision to the plaintiffs’ protected
3
Jones claims he was fired approximately four months after the Department learned about his filing of the
EEOC charge [DE 50 at 34] and Defendants contend Jones’ termination did not occur until five months after his
protected activity [DE 61 at 17]. Jones’ first charge of discrimination was filed on February 1, 2012 [Jones Aff. ¶
14] and it was dated February 15, 2012 [Am. Compl. ¶ 12]. Jones claims that according to the defendant’s EEOC
response, Defendants learned of Jones’ EEOC complaint shortly before the February 10, 2012 meeting between
Vance, Bell, Jones and the NAACP representative. [DE 47-1 at 33-34, citing Bell Dep. Ex. 28, pp. 3-4.] Jones was
terminated on July 24, 2012 [Leon July 24, 2012 letter]. Therefore, Jones was terminated approximately five months
after his protected activity.
37
actions.”); Harden v. Marion Cnty. Sheriff’s Dep’t, 799 F.3d 857, 863 (7th Cir. 2015) (finding
there must be “corroborating evidence of retaliatory motive” in addition to suspicious timing).
“The text, structure, and history of Title VII demonstrate that a plaintiff making a retaliation
claim under § 2000e-2(a) must establish that his or her protected activity was a but-for cause of
the alleged adverse action by the employer.” University of Texas Southwestern Med. Ctr. v.
Nassar, 133 S. Ct. 2517, 2534 (2013).
Morever, the passage of five months time is too long of a duration to infer evidence of
causality. The passage of weeks or months following the protected activity “mitigate[s] against
allowing an inference of causation based on suspicious timing.” Kidwell v. Eisenhauer, 679 F.3d
957, 967 (7th Cir. 2012); Johnson v. ITT Corp., No. 1:10-cv-142, 2011 WL 3875598, at *13
(N.D. Ind. Sept. 1, 2011) (finding two months separating the plaintiff’s complaint and her
suspension were insufficient to give inference of causality); Argyropoulos v. City of Alton, 539
F.3d 724, 734 (7th Cir. 2008) (holding a seven-week interval between plaintiff’s complaint and
her termination did not give rise to an inference of causality). Consequently, Jones has not
established that the timing in this case gives rise to an inference of retaliation.
2.
Similarly Situated Employees
The second type of circumstantial evidence that may establish a convincing mosaic is
evidence that similarly situated employees were treated differently. A similarly situated
employee must be directly comparable “in all material respects.” Peele v. Country Mut. Ins. Co.,
288 F.3d 319, 330 (7th Cir. 2002) (quotation omitted). There must be a substantial similarity so
as to create the inference that discriminatory intent is the reason for the differing treatment.
Spath v. Hayes Wheels Int’l - Indiana, Inc., 211 F.3d 392, 397 (7th Cir. 2000).
38
Jones provides no argument whatsoever in the body of his opposition memorandum that
there was a similarly situated employee, outside of his protected class, who was treated in a more
favorable manner than him. He does, however, include a few facts in his statement of genuine
disputes which touch on one other employee. In an abundance of caution, the Court will address
this issue even though Jones has not developed it through legal argument. Plaintiff asserts in his
statement of fact [DE 50 at 21] that “Capt. Bell testified that the Sheriff had the power to extend
Jones’ time off” [Bell Dep. at 25], and that “[a]t least one other employee in Bell’s recollection
had been given extended time off, [K.L.], a Caucasian female whose employment was extended
long after her FMLA leave was exhausted.” [Jones Aff. ¶ 25; Bell Dep. at 22-24; Jones Dep. Ex.
4.] Jones testified about K.L.:
She worked there five months, and they accommodate her restrictions and
they - - she came back to work on full restrictions. And then when she
couldn’t do the full restrictions, they put her on part-time work on
restriction. I never heard of, you know, jail - - at my time, when I worked
there, for part-time work. And they put her on part- time work ‘til she got
better. And then she couldn’t do the part-time work, so then she had to
leave.
[Jones Dep. at 136.] Jones assumed that Sheriff Mollenhauer made the decision to allow K.L. to
go part time, but he did not know that for sure, and Jones did not know why K.L. was allowed to
stay [Id. at 136-37].
Jones has not provided enough information for this Court to conclude that K.L. was a
similarly situated employee. The Court does not know what her job was, her alleged
“restrictions,” whether she had medical restrictions, whether she engaged in any protected
activity, who decided to accommodate her by allowing her to work part-time, or the basis for that
decision. Moreover, although Jones states in his affidavit that “I am aware of at least one other
39
employee, [K.L.], a Caucasian female, who was permitted to retain her job long after her FMLA
leave was expired” [Jones Aff. ¶ 25], because Jones also testified that he believed she worked at
the jail for five months [Jones Dep. at 136], she would not have even been eligible for FMLA
leave yet.4
In their reply memorandum, Defendants point to McMillion v. Mollenhauer, No. 3:12CV-673-TLS, 2014 WL 6809017, at *10 (N.D. Ind. Dec. 2, 2014), in which plaintiff McMillion,
also an employee of the LaPorte County Sheriff’s office, brought claims of, inter alia, FLMA
leave and race discrimination against the Department, and complained that she was not paid for
her FMLA leave when “another employee outside her protected class received paid leave, but
the Plaintiff did not, so the differential treatment must have been based on her race.” Defendants
assert that employee was K.L., and have attached the redacted affidavit of Sheriff Michael
Mollenhauer in the McMillion case as support [DE 61-1]. Judge Springmann found that the
circumstances surrounding the other employee’s leave (K.L.), did not permit an inference of
discrimination in McMillion:
The jailer who was placed on sick leave in 2007 was hospitalized for a
life-threatening illness that she alleged she had contracted while working
in the Jail, and that she intended to file a worker’s compensation claim.
The Sheriff, realizing that the jailer’s illness was one that could have been
contracted at work, concurred with the advise [sic.] of the County
Attorney to extend the length of the jailer’s sick leave under the County’s
formal policy, which allowed supervisors to grant additional paid sick
leave on a case by case basis. The County Commissioner reversed the
decision, instructing that paid leave was to cease immediately and that
LaPorte County would not permit such action in the future. The jailer’s
employment was later terminated when it became clear that she could not
return to work even part time. She subsequently filed a worker’s
4
Under the FMLA, an “eligible employee” is defined as “an employee who has been employed . . . for at
least 12 months by the employer” and who has “at least 1,250 hours of service with such employer during the
previous 12-month period.” 29 U.S.C. § 2611(2)(A).
40
compensation claim that was settled pursuant to an agreement by the
parties. The jailer who took sick leave in 2007 is not similarly situated to
the Plaintiff. Although the proposed comparator need not be identical to
the plaintiff in every conceivable way, the distinctions between a plaintiff
and the comparator must not be so significant that they render the
comparison effectively useless. Coleman v. Donahoe, 667 F.3d 835, 846
(7th Cir. 2012); Humphries v. CBOCS West, Inc., 474 F.3d 387, 405 (7th
Cir. 2007). The other jailer was never on FMLA leave, and the Sheriff
believed she may have contracted her life-threatening illness through her
work at the Jail. Moreover, the Sheriff had been instructed after extending
pay to the other jailer in 2007 that he was not to do so in the future.
McMillion, 2014 WL 6809017, at *10.
The exact same analysis is appropriate in this case. Jones was on FMLA leave (K.L. was
not), K.L. is different because the Department was concerned she contracted a life-threatening
illness while working in the Jail, and lastly, the Department informed the Sheriff that he could
not increase leave again in the future. In this case, Jones has not submitted evidence of a
similarly situated employee treated differently, or evidence from which a reasonable trier of fact
could conclude that his race was a factor in the decision not to extend his FMLA leave. Indeed,
as Judge Springmann notes, “[i]f an employee is unable to return to work after 12 weeks, the
employee no longer has any protections under the FMLA. Dotson v. BRP U.S. Inc., 520 F.3d
703, 709 (7th Cir. 2008). Additionally, her inability to work would constitute a legitimate, nondiscriminatory reason to terminate her employment.” McMillion, 2014 WL 6809017, at *10. In
sum, Jones has failed to put forth a similarly situated employee to create an inference of
discriminatory intent.
3.
Pretextual Reason
In evaluating whether the proffered reason was pretextual, “the only question is whether
the employer’s proffered reason was pretextual, meaning that it was a lie.” Naik v. Boehringer
41
Ingelheim Pharms., Inc., 627 F.3d 596, 601 (7th Cir. 2010) (quotation omitted). To show
pretext, an employee “must present evidence suggesting that the employer is dissembling.”
Castro, 786 F.3d at 565 (quoting O’Leary v. Accretive Health, Inc., 657 F.3d 625, 635 (7th Cir.
2011)), 657 F.3d at 635; see also Naik, 627 F.3d at 601. “The question is not whether the
employer’s stated reason was inaccurate or unfair, but whether the employer honestly believed
the reason it has offered to explain the discharge.” O’Leary, 657 F.3d at 635. To meet this
burden, the employee “must ‘identify such weaknesses, implausibilities, inconsistencies, or
contradictions’ in [the employer’s] asserted reason that a reasonable person could find it
unworthy of credence.” Coleman, 667 F.3d at 852-53 (quoting Boumehdi v. Plastag Holdings,
LLC, 489 F.3d 781, 792 (7th Cir. 2007)).
Jones spends a lot of time discussing the 2010 elevator incident and the 2011 “home
skillet” comment. However, these events took place before he filed his EEOC complaint in
February 2012, and therefore have no bearing on whether the Department fired him because of
his protected activity, which Jones himself claims was the filing of his EEOC complaint. [DE 50
at 25, 33, 43]; see Durkin v. City of Chicago, 341 F.3d 606, 614-15 (7th Cir. 2003) (“it is
axiomatic that a plaintiff [must] engage in statutorily protected activity before an employer can
retaliate against [him] for engaging in statutorily protected activity. . . An employer cannot
retaliate if there is nothing for it to retaliate against.”). Moreover, Jones also spends pages and
pages discussing evaluations, the loss of the “corporal rank,” the unsigned April 2012 written
reprimand, inconsistencies among versions of investigations into the incidents, and
“dissembling” as to the investigations and reprimands. [DE 50 at 28-36.] Yet none of this
argument is on point for the claim of retaliatory discharge. None of the evidence calls into
42
question the veracity of whether Jones was indeed out of FMLA leave, the Defendants’ stated
reason for termination. Jones has presented no evidence from which a factfinder could conclude
that the Department did not honestly believe he was out of FMLA leave, or that it was not
operating procedure to terminate someone following the expiration of their FMLA leave. Jones’
speculation about Defendants’ motives is insufficient. “It is well settled that speculation may not
be used to manufacture a genuine issue of fact.” Amadio v. Ford Motor Co., 238 F.3d 919, 927
(7th Cir. 2001) (citations omitted); see also Hanners v. Trent, 674 F.3d 683, 694 (7th Cir. 2012)
(noting that the “subjective beliefs of the plaintiff . . . are insufficient to create a genuine issue of
material fact.”). Jones has not designated evidence from which a rational jury could conclude
that Defendants fired him on account of his protected activity of filing an EEOC complaint.
Even assuming, arguendo, Jones could establish a prima facie case, he has failed to
dispute the nondiscriminatory reason offered by the Department: failure to return to work after
exhaustion of his FMLA leave. Jones has not presented evidence that calls into question the
veracity of the Department’s assertion that the exhaustion of his medical leave led to his
termination. The expiration of Jones’ FMLA leave and “[his] inability to work would constitute
a legitimate, non-discriminatory reason to terminate [his] employment.” McMillion, 2014 WL
6809017, at *10; see also Avila v. Board of Regents of the Univ. Of Wisconsin Sys., 95 F.Supp.3d
1074, 1096-97 (E.D. Wis. 2015) (dismissing retaliation claims on summary judgment, finding
“[e]ven if [plaintiff] were deemed to have established such a [prima facie] case, with respect to
retaliation by termination, the Board has presented a legitimate non-discriminatory reason - the
exhaustion of his medical leave.”). Therefore, Jones’ retaliation claims in Count IV of the
amended complaint are dismissed.
43
C.
Title VII Claims For Intentional Racial Discrimination and Section 1983 Claims
Defendants specifically argue in their memorandum in support of the motion for
summary judgment on all counts that they are entitled to summary judgment on Plaintiff’s Title
VII claims for intentional racial discrimination, Plaintiff cannot demonstrate he was subjected to
a hostile work environment in violation of Title VII, and Defendants are entitled to summary
judgment on Plaintiff’s section 1983 claims [DE 37 at 17-39]. As mentioned earlier, Jones stated
in his opposition memorandum that, “for all practical purposes, all of Jones’ claims are merged
into two basic causes of action: (1) Retaliation for complaining about workplace discrimination,
and (2) Violation of the Americans with Disabilities Act.” [DE 50 at 25.] This comes very close
to (if not actually) conceding that the other claims in the amended complaint are being
abandoned.
This is perplexing, as Jones submitted approximately 20 pages in his “statement of
genuine disputes” that seem geared towards trying to establish racial animus and discrimination.
While one subtitle in Plaintiff’s opposition memorandum is “contested issues of fact preclude
entry of summary judgment on Jones’ claim of intentional racial discrimination and retaliation in
Violation of Title VII and 42 U.S.C. § 1983,” [DE 50 at 23] and another subtitle is “the facts
viewed in a light most favorable to Jones establish a pattern of race-based discrimination before,
and retaliation after Jones filed his initial EEOC claim, precluding summary judgment” [DE 50
at 25], aside from these headings, Jones fails to provide any legal argument or case citations to
support his claim for racial discrimination and section 1983 claims. In their reply memorandum,
Defendants argue that Jones has abandoned his claim for racial discrimination and section 1983
claims [DE 61 at 5, 20].
44
A non-movant’s failure to address claims in response to a motion for summary judgment
waives those claims. See Palmer v. Marion Cnty., 327 F.3d 588, 597 (7th Cir. 2003) (holding
that claims not addressed in a summary judgment opposition brief are deemed abandoned);
Laborers Int’l Union of N. America v. Caruso, 197 F.3d 1195, 1197 (7th Cir. 1999) (stating that
arguments not presented to the district court in response to summary judgment motions are
waived). Moreover, when a plaintiff makes only a perfunctory argument and fails to cite any
record evidence in support of a claim, summary judgment should be granted. See Packer v.
Trustees of Indiana Univ. Sch. of Medicine, 800 F.3d 843, 852 (7th Cir. 2015) (finding cursory
defense of a claim on summary judgment resulted in waiver); Davis v. Carter, 452 F.3d 686,
691-92 (7th Cir. 2006) (perfunctory and undeveloped arguments without proper cites to the
record are deemed waived); Ienco v. Angarone, 429 F.3d 680, 685 (7th Cir. 2005) (finding
plaintiff waived claims by failing to develop them in response to defendant’s motion for
summary judgment); E.E.O.C. v. U.S. Bell, 2005 WL 1683979, at *19 (N.D. Ind. 2005) (issues
raised in the motion for summary judgment that are not properly responded to by the nonmoving party are deemed waived). Jones fails to include any legal argument about his racial
discrimination claims and his section 1983 claims, so these claims are waived.
Even assuming, arguendo, that Jones did not waive his claims of discrimination, they still
fail substantively. “In order to succeed in a Title VII lawsuit, a plaintiff must show that he is a
member of a class protected by the statute, that he has been the subject of some form of adverse
employment action (or that he has been subjected to a hostile work environment), and that the
employer took this adverse action on account of the plaintiff’s membership in the protected
class.” Morgan v. SVT, LLC, 724 F.3d 990, 995 (7th Cir. 2013). The Seventh Circuit has
45
classified material adverse employment actions into three categories: (1) financial compensation
and benefits, (2) a significant reduction in career prospects by not allowing an employee to use
the skills in which he was trained, and (3) an objectively hostile work environment. Tart v.
Illinois Power Co., 366 F.3d 461, 475 (7th Cir. 2004).
The direct method of proof is the only method discussed by Jones (even though it is in
relation to his claim for retaliation), and circumstantial evidence of discrimination often falls into
three categories: (1) suspicious timing, ambiguous statements, and other bits and pieces from
which an inference of discriminatory intent might be drawn; (2) evidence, statistical or
otherwise, that similarly situated employees were treated differently; and (3) evidence that the
employer offered a pretextual reason for the adverse employment action. Diaz v. Kraft Foods
Global, Inc., 653 F.3d 582, 587 (7th Cir. 2011). Similar to the retaliation claim, Jones has not
satisfied his prima facie case for a discrimination claim either.
The elevator incident, which does appear to be objectively racially derogatory, and the
“home skillet” reference (construing this as racially derogatory at least for the purposes of this
motion), is not enough: “[t]he random use of a racial epithet or stray remarks are insufficient to
support a hostile environment claim.” Turner v. Hous. Auth. of Jefferson Cnty., 188 F. Supp. 2d
1066, 1075 (S.D. Ill. 2002) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)).
Even a severely offensive racial slur is insufficient to state a claim under Title VII and Section
1983. “[O]ffensive racial epithets do not rise to the level of a Title VII violation unless the
working environment is dominated by racial slurs.” Lenoir v. Roll Coater, Inc., 841 F. Supp.
1457, 1463 (N.D. Ind. 1992), aff’d, 13 F.3d 1130 (7th Cir. 1994) (“neither racial comments that
are merely part of casual conversation, nor infrequent, sporadic, accidental racial comments or
46
epithets even if they engender offensive feelings in an employee, rise to the level of a Title VII
violation - more than a few isolated incidents of racial harassment must have occurred to prove a
claim under Title VII based on working conditions.”). So, even though the Court finds such
comments disgusting and unprofessional, they are not actionable in this context.
To the extent Jones includes facts about removal of his “corporal” title, Defendants note
that he did not plead any claim related to that in the amended complaint, and it is not a materially
adverse employment action, because neither Jones’ pay nor his employment benefits changed
and he continued to perform the same duties [Jones’ Dep. at 60-65]. The Department had a
legitimate non-discriminatory reason for the change that applied to all jailers who held the title,
including a Caucasian male [Mollenhauer Dep. at 16-17; Bell Aff. ¶ 27, 28]; Tart v. Illinois
Power Co., 366 F.3d 461, 475 (7th Cir. 2004). As such, taking away the title of corporal does
not permit an inference of discrimination, neither does changing his position from administrative
deputy to jail deputy, as there was no change in pay, benefits, or promotional opportunities. See
McMillion , 2014 WL 6809017, at *7 (finding loss of corporal designation at the same jail,
because it did not result in a change of pay or benefits, was not a materially adverse employment
action under Title VII); Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996)
(“A transfer involving no reduction in pay and no more than a minor change in working
conditions will not do, either”).
Jones also sets forth facts about the investigation of the elevator incident and the “home
skillet” comment, but a faulty investigation is not an independent basis for liability - rather, the
investigation becomes material only when considering employer liability under Title VII. See,
e.g., Parkins v. Civil Constructors of Illinois, Inc., 163 F.3d 1027, 1035 (7th Cir. 1998).
47
Moreover, to the extent Sergeant Vance and Captain Bell may have been confused over the name
of the officer involved, this is irrelevant. “To show pretext, the plaintiff must show more than
that the defendant’s decision was mistaken, ill considered or foolish, and as long as the employer
honestly believes the reasons it gives, pretext has not been shown.” Tyler v. Trustees of Purdue
Univ., 834 F. Supp. 2d 830, 840 (N.D. Ind. 2011) (citation omitted). In sum, Jones has failed to
put forth admissible evidence to form the basis of a claim for intentional racial discrimination.
With regard to Jones’ section 1983 claims, Defendants specifically argued, and presented
case law in support of their arguments that Captain Bell was not personally involved in the
provision of radios with the Department or Jones’ request for the same, there is no evidence that
Sergeant Vance intentionally discriminated against Jones in not providing Jones with a working
radio, and that Sergeant Vance did not participate in the decision to terminate Jones.
Additionally, Defendants contend that Jones cannot state a section 1983 claim against the
individual defendants. [DE 37 at 48-49]. Jones fails to respond to any of these arguments. As
such, his section 1983 claims are deemed waived. See Palmer, 327 F.3d at 597; Caruso, 197
F.3d at 1197. Moreover, it is well settled that a suit against a government officer in his official
capacity is treated as a suit against the municipality itself. Brandon v. Holt, 469 U.S. 464, 47172 (1985). There is no general respondeat superior liability under Section 1983, and instead a
municipality will be held liable only if the plaintiff establishes a policy or custom that violates
the plaintiff’s constitutional rights. Monell v. New York City Dep’t of Social Servs., 436 U.S.
658 (1978); Schor v. City of Chicago, 576 F.3d 775, 779 (7th Cir. 2009). In this case, Jones has
not set forth a policy or custom that violates Jones’ constitutional rights. See, e.g., Cook v. Lain,
No. 2:10-CV-411-PRC, 2013 WL 866876, at *14 (N.D. Ind. Mar. 7, 2013) (granting summary
48
judgment in favor of sheriff defendant where plaintiff offered no evidence of express policy or
custom, or that it caused the alleged constitutional deprivation).
D.
ADA Claims
Count III of the amended complaint alleges that Defendants refused to provide
accommodations, in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §
12111, et seq. [DE 21 ¶ 27]. The ADA prohibits employers from discriminating against their
employees “on the basis of disability.” 42 U.S.C. § 12112(a); see also Silk v. Bd. of Trustees,
Moraine Valley Cmty. Coll., Dist. No. 524, 795 F.3d 698, 706 (7th Cir. 2015). To establish a
violation of the ADA, an employee must show that: (1) he is disabled; (2) he is otherwise
qualified to perform the essential functions of the job with or without reasonable
accommodation; and (3) the employer took adverse action because of her disability or failed to
make a reasonable accommodation. Winsley v. Cook Cnty., 563 F.3d 598, 603 (7th Cir. 2009).5
To establish a prima facie case for failure to accommodate, Jones must show that: (1) he is a
qualified individual with a disability; (2) the Department was aware of his disability; and (3) the
Department failed to reasonably accommodate the disability. Kotwica v. Rose Packing Co., 637
F.3d 744, 747-48 (7th Cir. 2011).
One is “disabled” under the ADA if he has a physical or mental impairment that
substantially limits one or more major life activities, has a record of such an impairment, or is
regarded as having such an impairment. 42 U.S.C. § 12102(1); 29 C.F.R. § 1630.2(g); see also
Carothers v. County of Cook, 808 F.3d 1140, 1147 (7th Cir. 2015). The ADA defines “major
5
Congress amended the ADA, effective January 1, 2009, to broaden the class of individuals who qualify as
“disabled” under the statute. Pub. L. No. 110-325, 112 Stat. 3553. Although the amendments are not retroactive,
see Winsley, 563 F.3d at 600 n.1, because the alleged discriminatory actions in this case occurred after 2009, the
ADA amendments apply to Jones’ claims.
49
life activities” as including, but not limited to, “caring for oneself, performing manual tasks,
seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing,
learning, reading, concentrating, thinking, communicating, and working.” 42 U.S.C. §
12102(2)(A).
Neither party contests that Jones’ eye condition is a disability, or that the Department
accommodated his vision disability by placing Jones in the floater position. Rather, the parties
focus their argument on Jones’ post-traumatic stress disorder. First, Defendants contend that
Jones has not alleged that his condition substantially limited a major life activity. According to
the recent Code of Federal Regulations (“C.F.R.”), the term substantially limits “is not meant to
be a demanding standard” and determining “whether an impairment ‘substantially limits’ a major
life activity should not demand extensive analysis.” 29 C.F.R. § 1630.2(j)(1)(i) and (iii). The
regulations further provide that the “term ‘substantially limits’ shall be construed broadly and in
favor of expansive coverage[.]” 29 C.F.R. § 1630.2(j)(1)(i).
Although neither party brought this regulation to the Court’s attention, there is a recent
regulation that lists post-traumatic stress disorder as an impairment that will “virtually always be
found to impose a substantial limitation on a major life activity.” 29 C.F.R. § 1630.2(j)(3)(ii).
Indeed, the regulation expressly states that “it should easily be concluded that the following
types of impairments will, at a minimum, substantially limit the major life activities indicated: . .
. post-traumatic stress disorder . . . substantially limit[s] brain function.” 29 C.F.R. §
1630.2(j)(3)(iii). Keeping in mind this regulation and the ADA amendments which were
enacted to ensure broad coverage, the Court turns to analyzing whether Jones’ post-traumatic
stress syndrome substantially limits a major life activity.
50
Dr. Israel, a licensed clinical psychologist, evaluated Jones and “diagnosed Mr. Jones as
suffering from Post-Traumatic Stress Disorder-Acute.” [Israel Aff. ¶ 4.] Dr. Israel noted during
his intake/assessment of Jones that “[w]hen he began to relate the events and he got to the
suicide, he began to report that something was crawling on his skin. His posture became
slumped and his eyes became teary.” [DE 50-8, at 2.] Jones also reported that he “continued to
see the image of this inmate hanging with his head bowed” and that he “could not get the image
out of [his] mind.” [Id.] Jones argues that his post-traumatic stress syndrome has caused intense
emotional turmoil, which would effect concentrating, thinking, and working [DE 50 at 38].
Viewing the facts relevant to Jones’ condition in the light most favorable to him, as the
Court must at this stage of the proceedings, and assessing those facts under the new, less
stringent analysis called for by the ADA amendments, there is sufficient evidence to permit a
reasonable jury to find that Jones has a disability under the ADA. This conclusion is supported
by the regulation providing post-traumatic stress disorder should virtually always be found to
impose a substantial limitation on a major life activity, Dr. Israel’s affidavit and treating notes, as
well as the fact that “[t]he primary object of attention in cases brought under the ADA should be
whether covered entities have complied with their obligations and whether discrimination has
occurred, not whether an individual’s impairment substantially limits a major life activity.” 29
C.F.R. § 1630.2(j)(1)(iii).
Jones must also establish that he is a “qualified individual” under the ADA, which is
defined as an individual with a disability “who, with or without reasonable accommodation, can
perform the essential functions of the employment position that such individual holds or
desires.” 42 U.S.C. § 12111(8). Defendants specifically argue in their memorandum in support
51
of the motion for summary judgment that Jones cannot demonstrate that he was a “qualified
individual with a disability” within the meaning of the ADA [DE 37 at 41-44]. Jones completely
fails to address this requirement, jumping directly to “[t]he deciding question then is whether the
employer failed to reasonably accommodate Jones’ disability.” [DE 50 at 38.] Yet, Jones bears
the burden of proof to establish that he was a qualified individual with a disability under the
ADA. Winfrey v. City of Chicago, 259 F.3d 610, 614 (7th Cir. 2001); Weiler v. Household Fin.
Corp., 101 F.3d 519, 524 (7th Cir. 1996) (“The plaintiff bears the burden of proof on this issue;
she must be able to show she is a qualified individual with a disability in order to successfully
prosecute an ADA claim.”). The determination of whether Jones was qualified under the ADA
is made at the time of the employment decision (or at the time of his termination). Koshinski v.
Decatur Foundry, Inc., 177 F.3d 599, 602 (7th Cir. 1999).
In determining whether Jones was qualified to be a jail officer at the time of his
termination, the Court applies a two-step analysis. Stern v. St. Anthony’s Health Ctr., 788 F.3d
276, 285 (7th Cir. 2015). First, the Court considers whether Jones satisfies the prerequisites for
the position (which is not at issue in this case). Id. Second, the Court considers whether plaintiff
can perform the essential functions of the position, with or without reasonable accommodation.
Id. To determine the essential functions of the employee’s position, courts consider such factors
as “the employee’s job description, the employer’s opinion, the amount of time spent performing
the function, the consequences for not requiring the individual to perform the duty, and past and
current work experiences.” Gratzl v. Office of Chief Judges of the 12th, 18th, 19th, and 22nd
Judicial Cirs., 601 F.3d 674, 679 (7th Cir. 2010) (quotation omitted); see also 42 U.S.C. §
12111(8); 29 C.F.R. § 1630.2(n)(3). Courts do give deference to an employer’s judgment
52
regarding which requirements of a particular job are “essential.” 42 U.S.C. § 12111(8); Gratzl,
601 F.3d at 679 (“[w]e presume that an employer’s understanding of the essential functions of
the job is correct, unless the plaintiff offers sufficient evidence to the contrary.”).
Jones has failed to show that without an accommodation, he could perform the essential
functions of a jail officer. However, the next inquiry is whether Jones has established that he can
perform the essential functions of being a jail officer with an accommodation. A reasonable
accommodation can include, inter alia, reassignment to a vacant position. 42 U.S.C. § 12111(9).
With this Court’s exclusion of the last paragraphs of Dr. Israel’s affidavit pursuant to the motion
to strike, Jones has not provided any admissible evidence showing there was an open position for
which Jones was qualified with the restrictions of both Dr. Houck and Dr. Israel. Jones has not
presented a way that the Department could have accommodated him to perform the job’s
essential functions with the restrictions imposed by both Dr. Houck and Dr. Israel. There is a
complete lack of any legal argument, and no citation to any case law whatsoever in Jones’
memorandum relating to his burden to establish he is a qualified individual and he gives the
Court no arguments as to why he can allegedly perform the essential functions of his job with
reasonable accommodations. It is not this Court’s duty to make legal arguments for the parties
involved. Nelson v. Napolitano, 657 F.3d 586, 590 (7th Cir. 2011) (“Neither the district court
nor [the appellate court] are obliged to research and construct legal arguments for the parties”);
United States v. Thornton, 642 F.3d 599, 606 (7th Cir. 2011)(undeveloped and unsupported
arguments may be deemed waived); United States v. Lanzotti, 205 F.3d 951, 957 (7th Cir. 2000)
(“It is not this court’s responsibility to research and construct the parties’ arguments,”); United
States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (a skeletal argument does not preserve a
53
claim for appeal). And while Jones puts forth factual disputes in his statement of facts, that is
not sufficient either, they must be material factual disputes. See Howland v. Kilquist, 833 F.2d
639, 642 (7th Cir. 1987) (“The mere existence of a factual dispute will not bar summary
judgment unless the disputed fact is outcome determinative under governing law.”).
As to the restriction that Jones should be permitted to leave work should his symptoms
begin, Defendants have not questioned Sosinski’s testimony that in a jail environment, if there is
a traumatic event, an officer cannot just walk away, and that the proposed accommodation by Dr.
Israel would have jeopardized the safety of Jones and the inmates [Sosinski Dep. at 6, 19].
Jailers cannot simply leave inmates unsupervised [Bell Dep. at 64], and it is essential for jailers
to monitor detainees, perform inspections, and respond to emergencies [Job Description]. As to
the restriction that Jones should be limited to one shift of work, a jailer must be able to “respond
[] to emergencies on a 24-hour basis” and “assist in administering emergency first-aid
measures.” [Job Description, D00042, at 1-4.] Jones’ job description makes clear that it may be
necessary for jailers to work extended hours on occasion [Id. at 4]. Additionally, Sosinski did
not believe the Department could accommodate the restriction that Jones have limited exposure
to the cell where the incident occurred, because as a floater, if there was another incident in that
cell, Jones would need to respond [Sosinski Dep. at 20]. Jones was unable to perform the
essential functions required of a floater with his combined restrictions.
The only additional accommodation Jones seems to hint at (not in the legal argument
section, but in his statement of genuine issues), is that he should have been accommodated
through more time off work. [DE 50 at 21.] However, “[t]he rather common-sense idea is that if
one is not able to be at work, one cannot be a qualified individual.” Waggoner v. Olin Corp.,
54
169 F.3d 481, 482 (7th Cir. 1999). “Not working is not a means to perform the job’s essential
functions. An inability to do the job’s essential tasks means that one is not ‘qualified’; it does
not mean that the employer must excuse the inability.” Byrne v. Avon Prods., Inc., 328 F.3d 379,
381 (7th Cir. 2003). Moreover, an employer is not required to “manufacture a job that will
enable the disabled worker to work despite his disability.” Hansen v. Henderson, 233 F.3d 521,
523 (7th Cir. 2000). While Jones provides a copy of the voluntary furlough policy, presumably
as evidence of a policy that permits short term release from work, he has not demonstrated that it
was available to him as it appears applicable only to instances of budgetary constraints.
Although Jones now claims that Dr. Israel’s restrictions may have lasted only two
additional days, a review of the letter establishes that Dr. Israel wrote the four restrictions and
then stated: “I would recommend he begin work on July 16, 2012 so I can evaluate his progress
on July 18, 2012.” [Dr. Israel July 11, 2012 letter.] The letter does not state that the progress
would be evaluated so that Jones “could possibly return [] to work without further restrictions,”
as Jones contends in his memorandum [DE 50 at 18]. “The facts relevant to a determination of
whether a medical leave is a reasonable accommodation are the facts available to the decisionmaker at the time of the employment decision.” Amadio v. Ford Motor Co., 238 F.3d 919, 928
(7th Cir. 2001). There was not a written time frame on the restrictions provided by Jones [Bell
Dep. at 72].
Jones did not request continued medical leave or worker’s compensation leave prior to
his termination, but even if he had, that request must have a “definite endpoint” before it would
be considered a reasonable accommodation. Oestringer v. Dillard Store Servs., Inc, 92 F. App’x
339, 341-42 (7th Cir. 2004) (holding plaintiff failed to demonstrate that she was a “qualified
55
individual” where she had already been off work for six weeks and she indicated only that she
could not return to work and was still suffering from her condition).
The Seventh Circuit has also held that “[i]t is the plaintiff’s burden to show that a vacant
position exists for which he was qualified. If such a position is available, then the court may
consider whether failure to provide that accommodation was due to a breakdown in the
interactive process.” Jackson v. City of Chicago, 414 F.3d 806, 813 (7th Cir. 2005) (quoting
Ozlowski v. Henderson, 237 F.3d 837, 840 (7th Cir. 2001)). Because Plaintiff has failed to put
forth any admissible evidence that a vacant position existed at the Department, nor was there any
duty for the Department to create a new job for him, and Jones was unable to perform the
essential functions required of a floater with his combined restrictions, Jones has failed to show
that he is a qualified individual with a disability under the ADA. As such, the Court’s analysis
may end there, and it need not consider the interactive process. Basden v. Professional Transp.,
Inc., 714 F.3d 1034, 1039 (7th Cir. 2013). As the Seventh Circuit stated in Basden:
[T]he failure to engage in the interactive process required by the ADA is
not an independent basis for liability under the statute, and that failure is
actionable only if it prevents identification of an appropriate
accommodation for a qualified individual. Rehling v. City of Chicago,
207 F.3d 1009, 1016 (7th Cir. 2000). Even if an employer fails to engage
in the required process, that failure need not be considered if the employee
fails to present evidence sufficient to reach the jury on the question of
whether she was able to perform the essential functions of her job with an
accommodation. Bombard v. Fort Wayne Newspapers, Inc., 921 F.3d
560, 563-64 (7th Cir. 1996). Because there was no evidence permitting a
conclusion that [plaintiff] was a qualified individual for ADA purposes,
the district court correctly entered summary judgment for [defendant] on
her ADA claim despite any shortcomings in [defendant’s] response to her
request.
Basden, 715 F.3d at 1039. In this case, Jones has failed to present evidence sufficient to reach
56
the jury on the question of whether he was able to perform the essential functions of his job with
an accommodation. Consequently, Defendants are entitled to summary judgment on the ADA
claims.
Conclusion
For the reasons set forth above, the Motion for Summary Judgment [DE 31] is
GRANTED and the amended complaint is DISMISSED WITH PREJUDICE. The Motion to
Strike [DE 55] is GRANTED IN PART and DENIED IN PART. The Motion to Strike [DE
55] is GRANTED as to paragraphs 10-15 of Dr. Israel’s affidavit, which are STRICKEN as
inadmissible testimony.
SO ORDERED.
ENTERED: March 29, 2016
/s/ JON E. DEGUILIO
Judge
United States District Court
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