Burnett v. Fox et al

Filing 122

OPINION AND ORDER: The Court GRANTS the motion to amend 94 ; DENIES the motion for default judgment 93 ; DENIES the plaintiff's motion for summary judgment 40 ; GRANTS the defendants' motion for summary judgment 90 ; and DIRECTS the clerk to enter judgment in favor of defendants and to close this case. Signed by Judge Damon R Leichty on 1/14/2020. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
DARYL KEITH BURNETT JR.,
Plaintiff,
v.

CAUSE NO.: 3:18-CV-262-DRL-MGG

EDWARD FOX, et al.,
Defendants.
OPINION AND ORDER
Daryl Keith Burnett, Jr., a prisoner without a lawyer, proceeds on a First Amendment claim
against Edward Fox, Michael Moon, and Keith Wilson terminating his employment on June 16, 2016,
in retaliation for complaints regarding their professionalism and harm to his reputation. The parties
have filed cross-motions for summary judgment, which remain pending. In the defendants’ motion
for summary judgment, they argue that Mr. Burnett has not shown that his complaints motivated the
termination, and they say Mr. Burnett would have been terminated even absent such complaints.
The defendants provided Mr. Burnett with the summary judgment notice required by N.D.
Ind. L.R. 56-1 and a copy of both Federal Rule of Civil Procedure 56 and Local Rule 56-1. ECF 92.
The notice informed Mr. Burnett of the consequences of forgoing a response. It advised that, unless
he disputed the facts presented by the defendants, the court could accept those facts as true. See Fed.
R. Civ. P. 56(e). It further advised that a lack of response could result in the dismissal of his case. See
Fed. R. Civ. P. 56(a). Mr. Burnett requested and received extensions of time to prepare a response to
the defendants’ motion for summary judgment and a reply in support of his motion for summary
judgment. ECF 105, ECF 106, ECF 108. Nevertheless, Mr. Burnett did not file these briefs.
Mr. Burnett also filed a motion for default judgment, arguing that the defendants failed to file
a response to his motion for summary judgment. ECF 93. In response, the defendants filed a motion

for leave to amend their motion for summary judgment to reflect that it was also their response to
Mr. Burnett’s motion for summary judgment. ECF 94. They explain that they did not file a timely
response due to a calendaring error. Though the court expects all parties to abide by deadlines, these
circumstances do not warrant the harsh sanction of default judgment, particularly in light of their
pending summary judgment briefing. See Sun v. Bd. of Trustees of Univ. of IL, 473 F.3d 799, 811 (7th Cir.
2007) (“This Circuit has a well-established policy favoring a trial on the merits over a default
judgment.”). Therefore, the court grants leave to amend and denies the motion for default judgment.
FACTS
According to the complaint and the attached exhibits, Mr. Burnett was terminated from his
job at the recycling center at the Indiana State Prison on May 6, 2016. ECF 2-1 at 2. Officer Edward
Fox and Sergeant Michael Moon, who supervised the recycling department, signed the termination
paperwork, which alleged that Mr. Burnett had removed property from the recycling area. Id. On May
9, Sergeant Moon emailed Officer Fox and Lieutenant Keith Wilson, stating that he was unable to
obtain a written statement from the correctional officer who had witnessed the theft.1 Id. at 4. He
recommended Mr. Burnett’s reinstatement as a recycling employee and the removal of the negative
evaluation from Mr. Burnett’s record. Id.
Following Mr. Burnett’s reinstatement, on May 17, Mr. Burnett complained to Officer Fox,
Sergeant Moon, and Lieutenant Wilson that their conduct had been unprofessional and the report had
defamed his good name and reputation. ECF 2 at 6. He told them he believed “their unprofessional
conduct was unacceptable and should never happen again.” Id. Sometime thereafter, Mr. Burnett did
not show up for work because correctional staff did not unlock his cell. Id. On June 16, 2016, Mr.

Mr. Burnett does not allege that Sergeant Moon made a mistake but instead alleges that he intentionally lied
about the unauthorized removal of property. The court will not accept these types of characterizations at the
summary judgment stage without some evidence of malicious intent. See Fed. R. Civ. P. 56(c)(1)(A) (“A party
asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts
of materials in the record.”).
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Burnett was terminated for a second time. ECF 2-1 at 6. Officer Fox filled out Mr. Burnett’s
termination paperwork, stating:
Did not show up to work and continues to come down to back street when he is
circled off. Offender Burnett does not meet the standards of this department. He has
displayed this type of behavior before.
Id. Major Nowatski investigated Mr. Burnett’s termination. ECF 2 at 6-7. On June 22, a correctional
officer confirmed that Mr. Burnett was unable to show up for work because he was locked in his cell.
Id. Officer Fox, Sergeant Moon, and Lieutenant Wilson told Major Nowatski that surveillance cameras
recorded Mr. Burnett in the cellhouse during scheduled work hours, but Major Nowatski found that
these recordings were during times when the recycling center was closed. Id. Despite this information,
Sergeant Moon did not rehire Mr. Burnett, and Mr. Burnett remained unemployed until August 12,
2016, when he was approved for an apprenticeship course. ECF 2-1 at 8. As a result of his
unemployment and wrongful terminations, Mr. Burnett suffered emotional distress, major depression,
and mental anguish. ECF 2 at 8.
At his deposition, defense counsel asked Mr. Burnett about the statement that he went to the
recycling center even when he was not scheduled to work. ECF 91-1 at 14. He responded:
Okay. As far as me continuing to walk back there, I don’t walk back there unless I’m
let out of my cell by staff to go to work. So therefore I would not be in an unauthorized
area unless staff let me out to go to work, which would be on staff doing the wrong
thing and not me, simply because staff is only to let me out when I’m going to work.
So I would never be in an unauthorized area unless staff let me out of my cell to go to
work, which results in the reporting officers or the supervisors over the recycling job
making up false reports because they already understand that I do not have they keys
to my cell. They understand that I’m not supposed to be let out of my cell at midnight.
So they’re going to keep me locked in, so they know when to let me out of my cell and
when not to let me out of my cell, which result in me being where I’m supposed to be
pursuant to staff letting me out of my cell.
Id.

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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). In determining whether
summary judgment is appropriate, the deciding court must construe all facts in the light most favorable
to the non-moving party and draw all reasonable inferences in that party’s favor. Ogden v. Atterholt, 606
F.3d 355, 358 (7th Cir. 2010).
Mr. Burnett asserts that the defendants violated his First Amendment rights by terminating
him on June 6, 2016 in retaliation for his complaints about their professionalism and his reputation.
“To prevail on his First Amendment retaliation claim, [a plaintiff] must show that (1) he engaged in
activity protected by the First Amendment; (2) he suffered a deprivation that would likely deter First
Amendment activity in the future; and (3) the First Amendment activity was at least a motivating
factor in the Defendants’ decision to take the retaliatory action.” Gomez v. Randle, 680 F.3d 859, 866
(7th Cir. 2012). “Once the plaintiff proves that an improper purpose was a motivating factor, the
burden shifts to the defendant . . . to prove by a preponderance of the evidence that the same actions
would have occurred in the absence of the protected conduct.” Spiegla v. Hull, 371 F.3d 928, 943 (7th
Cir. 2004); Babcock v. White, 102 F.3d 267, 275 (7th Cir. 1996).
As an initial matter, the record contains no evidence to suggest that Sergeant Moon or
Lieutenant Wilson were personally involved with Mr. Burnett’s termination. Further, it is unclear why
Mr. Burnett believes that his comments motivated Officer Fox to terminate him. His belief may be
based on timing and the misleading statements in the termination paperwork. While there are many
ways to demonstrate retaliatory motive, timing alone is rarely sufficient to create a factual dispute for
claims of retaliation. Kidwell v. Eisenhauer, 679 F.3d 957, 966 (7th Cir. 2012); Williams v. Snyder, 367 F.

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App’x 679, 682 (7th Cir. 2010). “For an inference of causation to be drawn solely on the basis of a
suspicious-timing argument, we typically allow no more than a few days to elapse between the
protected activity and the adverse action.” Kidwell, 679 F.3d at 966. Because one month elapsed
between the comments to Officer Fox and his termination, the court finds that the timing alone is
insufficient evidence of a retaliatory motive for purposes of summary judgement.
Though Officer Fox’s statements regarding Mr. Burnett’s lack of compliance with his work
schedule may have been misleading, there is little to suggest that these statements were intentionally
misleading or were retaliatory in nature. Significantly, Mr. Burnett does not deny that he failed to
appear at work when scheduled or that he had appeared at work when he was not scheduled. Instead,
he represents that the correctional staff are responsible for these mistakes because only they have
control over whether he is allowed to leave his cell. While Mr. Burnett may not always be at fault for
these mistakes, there is no evidence to suggest that Officer Fox was aware that Mr. Burnett was not
acting of his own volition when Officer Fox prepared the termination paperwork in June 2016.
Further, even if the court accepts Mr. Burnett’s characterization of the defendants’ statements
as a sequence of lies intended to result in the termination of his employments, when there is no
evidence to support such a sweeping viewpoint, it does not follow that Mr. Burnett’s criticism
regarding a lack of professionalism motivated these statements. Significantly, the first termination
occurred eleven days before Mr. Burnett criticized the defendants for making false statements. This
demonstrates that any plan to terminate Mr. Burnett on false grounds necessarily predated any First
Amendment activity contained in the record. This, in turn, suggests either that Mr. Burnett’s criticism
did not motivate the termination or that Mr. Burnett would have been terminated even absent the
criticism. Though the court does not condone the practice of terminating employment based on false
accusations of misconduct, this practice alone does not violate the First Amendment.

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Based on the record, the court concludes that no reasonable jury could find that Mr. Burnett’s
criticism motivated Officer Fox to terminate him or that Sergeant Moon and Lieutenant Wilson were
personally involved in the termination. Therefore, the court grants the defendants’ motion for
summary judgment and denies Mr. Burnett’s motion for summary judgment. As a result, no claims
remain in this case.
For these reasons, the court:
(1) GRANTS the motion to amend (ECF 94);
(2) DENIES the motion for default judgment (ECF 93);
(3) DENIES the plaintiff’s motion for summary judgment (ECF 40);
(4) GRANTS the defendants’ motion for summary judgment (ECF 90);
(5) DIRECTS the clerk to enter judgment in favor of defendants and to close this case.
SO ORDERED.
January 14, 2020

s/ Damon R. Leichty
Judge, United States District Court

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