ALLMAN et al v. SMITH et al

Filing 163

ENTRY on Oral Motions - the Court DENIES the Defendants' Rule 50 motion, with regard to Plaintiff Tim Stires' claims. The Court DENIES the Defendants' Rule 50 motion regarding qualified immunity for Mayor Smith with respect to Robin Allman's claims. The Court GRANTS Defendants' Rule 50 motion regarding qualified immunity for Mayor Smith with respect to Margaret Baugher's claim. Signed by Judge Tanya Walton Pratt on 3/21/2016.(TRG)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ROBIN ALLMAN,MARGARET BAUGHER,
MARK BAUGHER, KRISTIE BINDA,
GARY DAVIS, ANDREW GREENE,
AMBER LEWIS-LILLY,
MICHAEL MCKINLEY, TIM STIRES,
JEFF WELKER, ROBERT ALLMAN,
Plaintiffs,
vs.
KEVIN SMITH, CITY OF ANDERSON,
Defendants.

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Case No. 1:12-cv-00568-TWP-DML

ENTRY ON ORAL MOTIONS
Before the Court is the Defendants’ Rule 50 motion, with regard to Tim Stires’ claims
against the Defendants and the Defendants’ Rule 50 motion, with regard to the issue of qualified
immunity. Both motions were previously argued orally at trial, and the Court took the motions
under advisement. For the following reasons, the Court finds as follows:
I. Legal Standard
Fed. R. Civ. P. 50(a) allows a district court to enter judgment against a party who has been
fully heard on an issue during a jury trial if “a reasonable jury would not have a legally sufficient
evidentiary basis to find for the party on that issue.” Schandelmeier-Bartels v. Chi. Park Dist.,
634 F.3d 372, 376 (7th Cir. 2011.) Under Rule 50, the district court is not free to weigh the parties’
evidence or the reasonable inferences that might be drawn from the evidence by the jury. Wright
& Miller, 9B Fed. Prac. & Proc. Civ. § 2524 (3d ed.). Nor may the district court assess or evaluate
the credibility of the witnesses. Id.

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A. Tim Stires’ claims
First, Defendants contend that Tim Stires’ claims against the City should be dismissed
because the Plaintiffs have failed to submit substantial evidence that he was not in a political
position. Although there is evidence that Tim Stires may have had meaningful impact into
government decision-making, there remains a fact issue whether “the inherent powers of [his
position] are such that political loyalty is a valid qualification”. (See Filing No. 79 at 21-22.)
There is evidence from which a reasonable jury could find in Tim Stires’ favor, accordingly, the
Rule 50 motion with regards to Mr. Stires’ claim is DENIED.
B. Qualified Immunity
Second, the Defendants assert that former Mayor Kevin Smith is individually protected
from Robin Allman and Margaret Baugher. “Government officials performing discretionary
functions are entitled to qualified immunity from suit ‘as long as their actions could reasonably
have been thought consistent with the rights they are alleged to have violated.’” Kiddy-Brown v.
Blagojevich, 408 F.3d 346, 352 (7th Cir. 2005) (quoting Anderson v. Creighton, 483 U.S. 635, 638
(1987)). In addition to alleging facts that, if true, would constitute a violation of a constitutional
right, the Plaintiffs must show that the case law was “clearly established” at the time of the alleged
violation, so that a reasonable public official would have known that his conduct was unlawful.
Id. A plaintiff is not required to find a factually indistinguishable case on point, but if there is no
such case, he needs to offer a different explanation for why the constitutional violation is obvious.
Moss v. Martin, 614 F.3d 707, 712 (7th Cir. 2010). Plaintiffs cannot rely upon the broad
proposition that the First Amendment protects against certain political patronage firings; they must
instead show that the violation was clear in the specific context of the case. Id.

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1. Robin Allman
Plaintiffs allege that Mayor Smith “promoted” Robin Allman from the Cashier position
back to the Office Manager position in order to terminate her, thereby demonstrating “recklessness
and a disregard of the law.” As addressed in the Court’s Entry on Summary Judgment, if true, such
actions would imply that Mayor Smith was aware that terminating Robin Allman directly from her
Cashier position would have violated the First Amendment because it is a low-level, ministerial
position. (See Filing No. 79 at 23-24.)
In their Rule 50 motion, Defendants argue that the trial evidence shows that Robin Allman
did not properly transfer from her position as Office Manager of the Utility Department, a political
position, to the position of Cashier, a non-politically sensitive position. (See Seventh Circuit
Mandate, Filing No. 103 at 6-7.) Defendants note that Robin Allman’s supervisor, Ms. Wiley,
testified she would not sign off on the transfer because she did not consider the transfer to be
consistent with City policy, specifically because Robin Allman did not follow the collective
bargaining procedures. Defendants contend that Robin Allman was not properly a Cashier, that
she worked as Office Manager at the time her termination decision was made and thus, her
termination did not violate any clear First Amendment rights.
The Plaintiffs respond that the trial evidence demonstrates a question of fact whether Robin
Allman properly transferred to the cashier’s position. In support, the Plaintiffs note that Ms. Wiley
could not identify a policy that Robin Allman violated by transferring, and there is evidence that
the transfer was consistent with City policy and was signed off on by Ms. Wiley’s boss, Mr. Priser.
Further, the Plaintiffs note that there is evidence suggesting that Robin Allman was terminated by
Mayor Smith directly, noting admissions by the Mayor and noting that Robin Allman received her
termination letter on Mayor Smith’s election stationery.

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Plaintiffs have produced sufficient evidence to create a jury question on whether Robin
Allman properly transferred to the Cashier position. As previously stated, if Robin Allman was
properly transferred to the Cashier position; and was, thereafter, “promoted” to the position of
Office Manager to be fired, Mayor Smith is not entitled to qualified immunity. Accordingly, the
Court denies the Defendants’ Rule 50 motion with regards to the issue of qualified immunity for
Robin Allman’s termination.
2. Margaret Baugher
Plaintiffs also allege that there is no reasonable basis for believing that Margaret Baugher’s
position as a Customer Service Supervisor in the City’s Utility Department required political
loyalty. “The Seventh Circuit has held that the case law has ‘made clear that an employee who
performs primarily ministerial functions and who has little autonomy or discretion in performing
his duties is not subject to patronage dismissal.’” Allen v. Elgin, No. 2:04-CV-001 PS, 2006 WL
3314557 (N.D. Ind. Nov. 9, 2006) (quoting Flenner v. Sheahan, 107 F.3d 459, 463 (7th Cir. 1997)).
As the Seventh Circuit noted, this position was “not at the top of the Utility Department, or even
a deputy, but the third level on the organization chart.” (Filing No. 103 at 8.) Further, the Seventh
Circuit affirmed this Court’s conclusion that, based on Ms. Baugher’s job description, her position
involved “clearly ministerial functions”. (See Filing No. 79 at 18, 24; Filing No. 103 at 12.)
In their Rule 50 motion, the Defendants argue that the trial evidence shows that Ms.
Baugher was dismissed by Susie Stapleton on the basis of misconduct, and that Mayor Smith was
not involved in the decision. In response, the Plaintiffs appear to concede that there is no direct
evidence of Mayor Smith’s involvement in Ms. Baugher’s termination. Instead, the Plaintiffs note
that Susie Smith admitted to being concerned about Mayor’s Smith’s opinion on Ms. Baugher’s
termination. In addition, the Plaintiffs contend that Mayor Smith’s denial of involvement in the

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termination decision is not credible, given that Mayor Smith was successfully impeached on the
termination decisions regarding Amber Lewis-Lilly and others.
The Court is not persuaded that the Plaintiffs have submitted sufficient evidence to
demonstrate Mayor Smith’s involvement in Ms. Baugher’s termination decisions. Instead, the
Plaintiffs rely solely on conjecture and broad credibility arguments. This, however, is not
sufficient evidence to demonstrate that Mayor Smith knowingly violated clear First Amendment
rights with respect to Ms. Baugher. Accordingly, the Court considers Mayor Smith to be entitled
to qualified immunity with respect to Ms. Baugher’s claims.
3. Advice of Counsel
Finally, the Defendants argue that, because the trial evidence shows that attorneys were
involved to assist Mayor Smith’s transition team, Mayor Smith is entitled to qualified immunity
for this reason as well. The Plaintiffs respond, and the Court agrees, however, that the evidence
regarding the nature and extent of the attorneys’ involvement in the transition was not fully
developed at trial. As such, Mayor Smith is not entitled to qualified immunity for this reason.
III. Conclusion
For the aforementioned reasons, the Court DENIES the Defendants’ Rule 50 motion, with
regard to Plaintiff Tim Stires’ claims. The Court DENIES the Defendants’ Rule 50 motion
regarding qualified immunity for Mayor Smith with respect to Robin Allman’s claims. The Court
GRANTS Defendants’ Rule 50 motion regarding qualified immunity for Mayor Smith with
respect to Margaret Baugher’s claim.

Date: 3/21/2016

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Distribution:
Anthony W. Overholt
FROST BROWN TODD LLC
[e-mail]
Jessica Williams Schnelker
FROST BROWN TODD LLC
[e-mail]
Jeffrey A. Macey
MACEY SWANSON & ALLMAN
[e-mail]
Quincy Erica Sauer
MACEY SWANSON & ALLMAN
[e-mail]
Barry A. Macey
MACEY SWANSON AND ALLMAN
[e-mail]

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