COTTRELL v. CLINTON COUNTY, IN et al

Filing 51

ORDER denying 39 Ms. Cottrell's Motion for Partial Summary Judgment and granting 32 Defendant's Motion for Summary Judgment. The Court finds that the discipline issued to Ms. Cottrell in response to her speech at the County Commissioners' meeting was not protected by the First Amendment. Signed by Judge Tanya Walton Pratt on 9/22/2014. (CBU)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
TINA COTTRELL,
Plaintiff,
v.
CLINTON COUNTY, IN, and SKIP EVANS
in his personal and official capacity,
Defendants.

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Case No. 1:13-cv-01175-TWP-DML

ENTRY ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
This matter is before the Court on a Motion for Summary Judgment (Filing No. 32) filed
by Defendants Clinton County, Indiana (“the County”), and Skip Evans, in both his individual and
official capacities (“Mr. Evans”) (collectively, “Defendants”), as well as a Cross-Motion for Partial
Summary Judgment (Filing No. 39) filed by Plaintiff Tina Cottrell (“Ms. Cottrell”). Ms. Cottrell
brought claims against the Defendants under 42 U.S.C. § 1983, alleging that Defendants violated
her rights under the First Amendment of the United States Constitution by disciplining her for
openly criticizing the Clinton County Commissioners at public meeting. 1 For the reasons set forth
below, Defendants’ Motion is GRANTED, and Ms. Cottrell’s Motion is DENIED.
I.

BACKGROUND

The material facts in this case are not in dispute, and are viewed in the light most favorable
to the party opposing the motion under consideration. Int’l Bhd. of Elec. Workers, Local 176 v.
Balmoral Racing Club, Inc., 293 F.3d 402, 404 (7th Cir. 2002). Ms. Cottrell served as the

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Ms. Cottrell’s Complaint also alleges that Defendants required pre-approval of any newspaper articles drafted by
her, as well as prohibited her from talking with the local radio station about issues related to Clinton County. (Filing
No. 1, at ECF p. 3.) However, her cause of action relates only to the alleged retaliation for her speech at the meeting
(Filing No. 1, at ECF p. 5), and she does not address these alleged restrictions on her communications with the media
in her Motion and briefing.

Superintendent of Parkview Home (“Parkview”), which is a County owned assisted- living
residential facility for handicapped and elderly individuals in Clinton County, Indiana. The
Superintendent of Parkview reports to the County Commissioners, and the Commissioners appoint
the Superintendent on an annual basis.
The Superintendent is responsible for directing and coordinating all operations at
Parkview. The duties include directing personnel, preparing the annual budget, monitoring
expenditures, maintaining financial records, monitoring resident trust funds, and ensuring the
safety and well-being of residents and staff. Some of the Superintendent’s essential duties, found
in an official job description, include directing and coordinating operations of Parkview, answering
the telephone and responding to inquiries and complaints, providing information or routing calls
as appropriate, receiving complaints and mediating problems for residents and employees as
needed, serving as liaison between Parkview and residents, family members of residents, civic
groups, church groups and the general public in order to ensure good public relations to the
community, and consulting with County officials and the general public as needed to exchange
information, provide expertise, coordinate activities, discuss problems, or receive advice and
direction. (Filing No. 34-2.)
Ms. Cottrell served as the Assistant Administrator for 14 years, prior to her appointment
by the Clinton County Commissioners to serve as the Superintendent of Parkview in 2001. She
was reappointed as the Superintendent each year thereafter until January 3, 2014.

As

Superintendent, Ms. Cottrell was a non-exempt salaried employee and was not required to clock
in or clock out at the start or end of each workday. She typically maintained a regular work
schedule of Monday through Friday, 7:00 a.m. to 2:00 p.m., and remained on-call as needed 24
hours a day.

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In 2011, the County Commissioners became aware of surplus County property located at
Parkview and they decided to dispose of the property using a private bidding auction process. Ms.
Cottrell’s only duties with respect to the auction were to place items on display and provide bid
forms to inquiring bidders.
During her service as both Assistant Administrator and Superintendent of Parkview, Ms.
Cottrell attended many County Commissioners’ meetings. One such meeting that she attended
was on May 20, 2013. On that date, Ms. Cottrell arrived at work at 7:00 a.m., and at approximately
8:00 a.m. she left Parkview and traveled to the Clinton County Courthouse to deliver some
paperwork related to Parkview to the County Auditor. After turning in the paperwork, Ms. Cottrell
stopped at the County Commissioners’ meeting, which was already underway. Ms. Cottrell was
not included on the meeting agenda, but walked into the Commissioners’ meeting because she saw
a County Councilman with whom she wanted to speak about donations for Parkview. She sat
down in the gallery and motioned to the Councilman from across the room, indicating that he
should call her. Ms. Cottrell then remained in the meeting because the Commissioners began
asking her questions about the status of a gentleman who had recently been admitted to Parkview.
The gentleman had no income and did not want to apply for any benefits. Following this
discussion, the Commissioners began addressing a separate issue regarding certain farm equipment
at Parkview that had become old and obsolete. There was discussion on whether insurance on the
equipment was necessary and how much the equipment might be worth. Ms. Cottrell explained
what each piece of equipment was and advised which items were still used at Parkview and gave
her opinion that the items had minimal value. The discussion then turned to whether the equipment
should be sold. When Mr. Evans, one of the Commissioners, mentioned the option of holding an
auction to dispose of the equipment, Ms. Cottrell responded, “Oh Lord, please whatever you guys

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do when it comes to another auction do better than the first time. You wouldn’t believe the calls
we got.” (Filing No. 34-3, at ECF p. 15). The discussion then addressed what happened at the
previous auction of Parkview equipment held in 2011, and Ms. Cottrell commented that members
of the community were upset because the auction was rushed, and because all of the items went to
one individual.
On May 22, 2013, the Commissioners issued a written warning to Ms. Cottrell for her
comment at the Commissioners’ meeting. The written warning stated:
…you made a comment regarding the possible auction of equipment to the effect
of ‘I hope you do better that [sic] the last time.’ . . . This type of comment is goes
[sic] against the Code of Conduct adopted by the Board earlier this year where
personal attacks made publicly are not permitted.
(Filing No. 34-4). The warning advised that future violations of the Code of Conduct or other
inappropriate behavior could result in further disciplinary action, up to and including termination.
Specifically, the warning stated that additional disciplinary action would be in the form of a final
warning. (Filing No. 34-4, at ECF p. 2.)
According to Ms. Cottrell, she made the comment at issue because she had received
numerous telephone calls and had personal face-to-face conversations with members of the public
following the 2011 auction, about their dissatisfaction with the process. Ms. Cottrell believed
people called her and spoke to her because they knew she was the Superintendent at Parkview.
Ms. Cottrell did not formally inform the Commissioners about these complaints at the time they
occurred in 2011, and the only time she advised the Commissioners about the calls and complaints
was her commentary at the May 20, 2013, meeting. Additional facts will be addressed below as
necessary.
II.

LEGAL STANDARD

Summary judgment is only appropriate by the terms of Rule 56 where there exists “no
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genuine issue as to any material facts and . . . the moving party is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56. This notion applies equally where, as here, opposing parties each
move for summary judgment in their favor pursuant to Rule 56. I.A.E., Inc. v. Shaver, 74 F.3d
768, 774 (7th Cir. 1996). Indeed, the existence of cross-motions for summary judgment does not
necessarily mean that there are no genuine issues of material fact. R.J. Corman Derailment Serv.,
Inc. v. Int’l Union of Operating Eng’rs., 335 F.3d 643, 647 (7th Cir. 2003). Rather, the process of
taking the facts in the light most favorable to the nonmovant, first for one side and then for the
other, may reveal that neither side has enough to prevail without a trial. Id. at 648. “With crossmotions, [the Court’s] review of the record requires that [the Court] construe all inferences in favor
of the party against whom the motion under consideration is made.” O’Regan v. Arbitration
Forums, Ins., 246 F.3d 975, 983 (7th Cir. 2001) (quoting Hendricks–Robinson v. Excel Corp., 154
F.3d 685, 692 (7th Cir. 1998)).
III. DISCUSSION
Ms. Cottrell alleges that the discipline imposed upon her violated her rights under the First
Amendment because, although she is a public employee, her comments were made as a citizen on
a matter of public concern. The Supreme Court has stated that “the First Amendment protects a
public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public
concern.” Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). However, when public employees
speak in their capacity as public employees, they are not speaking as “citizens” for purposes of the
First Amendment, and the Constitution does not protect their communications from employer
discipline. Id. at 421. Whether the First Amendment protects a public employee’s speech requires
two inquiries. In the first inquiry, the Court must determine whether the employee spoke (1) as a
citizen, and (2) on a matter of public concern. Id. at 418 (citing Pickering v. Bd. of Ed. of Twp.

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H.S. Dist. 205, Will Cty., 391 U.S. 563, 568 (1968)). The “threshold inquiry is whether the
employee was speaking as a citizen; only then do we inquire into the content of the speech.”
Spiegla v. Hull (Spiegla II), 481 F.3d 961 965 (7th Cir. 2007). If the answer to either of these
questions is no, the employee has no First Amendment cause of action based on her employer’s
reaction to her speech. Garcetti, 547 U.S. at 421. The second part of the inquiry is “whether the
relevant government entity had an adequate justification for treating the employee differently from
any other member of the general public.” Id. “A government entity has broader discretion to
restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed
at speech that has some potential to affect the entity’s operations.” Id.
Ms. Cottrell’s First Amendment claims fail as a matter of law because she has not shown
that she was speaking as a citizen when she made the objectionable comment at the County
Commissioners’ meeting on May 20, 2013. The Supreme Court has held that when public
employees make statements “pursuant to their official duties,” the employees are not speaking as
citizens for purposes of the First Amendment. Id. at 421. In making this determination, the Court
must determine “whether the speech is part of the employee’s ‘daily professional activities.’”
Chrzanowski v. Bianchi, 725 F.3d 734, 739 (7th Cir. 2013) (quoting Garcetti, 547 U.S. at 422).
While the Supreme Court has not articulated a comprehensive framework for determining the
scope of an employee’s duties in cases, such as this one, where there is room for debate, the Court
stated that “[t]he proper inquiry is a practical one.” Garcetti, 547 U.S. at 424.
The Seventh Circuit addressed the issue of whether a public employee was speaking as a
citizen for purposes of the First Amendment in Mills v. City of Evansville, Ind., 452 F.3d 646 (7th
Cir. 2006). Mills held that a plaintiff police officer spoke as a public employee when, while on
duty and in uniform, she told senior managers that a proposed policy change would not work and

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gave the impression that she would enlist community organizations to oppose the policy rather
than support it. Id. at 648. Upon review of the district court’s ruling on summary judgment, the
Court of Appeals affirmed that Mills’ criticism of the policy was not that of a citizen because she
spoke “as a public employee contributing to the formation and execution of official policy.” Id.
Taking a practical view of the evidence as a whole, the Court finds that Ms. Cottrell’s
comments during the County Commissioner’s meeting were pursuant to her position as Parkview
Superintendent. Similar to the officer in Mills who was on duty and discussing the official business
of her employer, Ms. Cottrell attended the meeting during her normal workday and went into the
Commissioners’ meeting to address an issue related to Parkview. During the meeting, Ms. Cottrell
was directly involved in several discussions that were related to Parkview’s operations, including
the indigent resident who had recently been admitted to Parkview, and the status of the farm
equipment located at and used by Parkview. Ms. Cottrell does not dispute that her comments
related to the resident were pursuant to her position as Superintendent, but argues that the
subsequent discussion regarding the auction of the farm equipment was not pursuant to her
employment because she was not required to attend the meeting, nor was she required to convey
the citizens’ complaints at a public session. This argument is not consistent with Ms. Cottrell’s
job duties and the context of the conversation as a whole.
Ms. Cottrell’s job description—the validity of which she does not dispute—includes
responsibilities such as directing and coordinating operations of Parkview, answering telephone
calls and responding to inquiries and complaints, assisting with and performing farm management
tasks, ensuring good public relations to the community, and consulting with County officials and
the general public as needed to “provide expertise, coordinate activities, discuss problems, or
receive advice and direction.” (Filing No. 34-2, at ECF pp. 1-2). These are the duties Ms. Cottrell

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was performing at the Commissioners’ meeting by answering questions and providing her
expertise regarding the condition and value of the farm equipment located at and used by Parkview.
While Ms. Cottrell’s job duties do not specifically include organizing and conducting auctions of
county property, they do include managing Parkview’s operations as a whole and performing farm
management tasks, both of which are related to decisions regarding the farm equipment at issue.
Ms. Cottrell was consulting with the Commissioners in developing a plan to dispose of property
at Parkview, which was necessarily related to Parkview’s operations.
In addition, by communicating the concerns of the community regarding the 2011 auction
and asking the Commissioners to “do better than the first time,” Ms. Cottrell was performing her
duty to “ensure good public relations to the community” and to “provide expertise, coordinate
activities, discuss problems, [and] receive advice and direction.” (Filing No. 34-2, at ECF p. 2).
Ms. Cottrell admitted that citizens called her with complaints about the auction because she is the
Superintendent of Parkview, not merely because she was also a concerned citizen. (Filing No. 344, at ECF p. 44.) In addition, her comment referenced calls that “we” received, necessarily
referring to Parkview, not just herself individually. Ms. Cottrell’s comments about the auction can
be characterized similarly to the plaintiff’s comments in Mills, in that they both “contribut[ed] to
the formation and execution of official policy,” namely the plans for the disposition of property
used by Parkview, and ensuring that Parkview maintained good public relations with the
community. Mills, 452 F.3d at 658.
As such, the Court finds that Ms. Cottrell’s comments at the Commissioners’ meeting were
made pursuant to her official duties as Superintendent of Parkview; thus, her speech is not
protected by the First Amendment.
Because the Court finds that Ms. Cottrell was not speaking as a citizen, there is no need to

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inquire into whether the speech was on a matter of public concern, nor is it necessary to weigh the
interests of the County. Spiegla II, 481 F.3d at 965. As a matter of law, Defendants are entitled
to summary judgment, and their Motion is therefore GRANTED.
IV. CONCLUSION
For the reasons set forth above, the Court finds that the discipline issued to Ms. Cottrell in
response to her speech at the County Commissioners’ meeting was not protected by the First
Amendment, and therefore GRANTS the Defendants’ Motion for Summary Judgment (Filing No.
32), and DENIES Ms. Cottrell’s Motion for Partial Summary Judgment (Filing No. 39). Ms.
Cottrell shall take nothing by way of her complaint.
SO ORDERED.
________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

Date: 9/22/2014

DISTRIBUTION:
Ryan Patrick Sink
JOHN H. HASKIN & ASSOCIATES
[e-mail]
John H. Haskin
JOHN H. HASKIN & ASSOCIATES
[e-mail]
Liberty L. Roberts
CHURCH CHURCH HITTLE & ANTRIM (Fishers)
[e-mail]
Thomas Frank Little
POWER LITTLE LITTLE
[e-mail]

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