RILEY et al v. CITY OF KOKOMO, INDIANA, HOUSING AUTHORITY
ORDER granting 59 Motion for Summary Judgment in its entirety. Signed by Judge William T. Lawrence on 3/7/2017. (CBU)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
) Cause No. 1:15-cv-391-WTL-DML
CITY OF KOKOMO, INDIANA
ENTRY ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Before the Court is the Defendant’s fully briefed Motion for Summary Judgment (Dkt.
No. 59). The Court, being duly advised, now GRANTS the Defendant’s motion for the reasons
set forth below.
Federal Rule of Civil Procedure 56(a) provides that summary judgment is appropriate “if
the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” In ruling on a motion for summary judgment, the
admissible evidence presented by the non-moving party must be believed, and all reasonable
inferences must be drawn in the non-movant's favor. Zerante v. DeLuca, 555 F.3d 582, 584 (7th
Cir. 2009) (“We view the record in the light most favorable to the nonmoving party and draw all
reasonable inferences in that party's favor.”). However, a party who bears the burden of proof on
a particular issue may not rest on its pleadings, but must show what evidence it has that there is a
genuine issue of material fact that requires trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986); see also Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003)
(“[S]ummary judgment is the put up or shut up moment in a lawsuit, when a party must show
what evidence it has that would convince a trier of fact to accept its version of events”) (internal
quotation omitted). Finally, the non-moving party bears the burden of specifically identifying
the relevant evidence of record, and “the court is not required to scour the record in search of
evidence to defeat a motion for summary judgment.” Ritchie v. Glidden Co., 242 F.3d 713, 723
(7th Cir. 2001); see also Herman v. City of Chicago, 870 F.2d 400, 404 (7th Cir. 1989) (“A
district court need not scour the record to make the case of a party who does nothing.”).
Plaintiffs’ Factual Allegations
The Court notes at the outset that, in ruling on the Defendant’s summary judgment
motion, it has been hindered by the Plaintiff’s muddled presentation in this case. It has had to
expend entirely too much of the Court’s limited resources sorting through both facts and
argument. For example, many of the facts contained in the Plaintiff's Factual Background and
Statement of Material Facts in Dispute section are not supported by the evidence of record to
which the Plaintiff cites. The facts that follow are those that are supported by the record and
viewed in the light most favorable to the Plaintiff. Additional facts are included in the
Discussion section below.
Riley’s Employment with KHA
In November 2008, Riley began working for Kokomo Housing Authority (“KHA”) as a
front desk clerk in KHA’s Housing Choice Voucher Program (“HCVP”), which provides
vouchers to low income individuals and families to subsidize rent in privately owned rental
properties throughout Kokomo, Indiana. She answered phones, greeted visitors to the office,
sent out letters for appointments, and did filing. Dkt. No.79-1 at 10. When Riley began her
employment with KHA, Shirley Young was the CEO, and Mariella Kelly was KHA’s Director of
Human Resources. Cheryl Morrow became the Director of Human Resources on October 15,
2011, and Debra Cook became CEO on April 30, 2012.
KHA also maintains a separate public housing program, renting units it owns to low
income tenants. During Riley’s employment, the offices for this program were located in a
different building from the HCVP offices. Id.
Medical Conditions and Leave
Between 2000 and 2003, Riley was diagnosed with bipolar disorder, generalized anxiety
disorder, depression, post-traumatic stress disorder, and frontal lobe seizures. She also
experienced photosensitivity that could trigger seizures. She first sought leave for seizures and
severe anxiety in mid-March 2010. Dkt. No. 65 at 13-16. Her treating physician assistant
certified that she would require periodic leave of one to eight hours of leave per day for up to
two days per week. Id. at 15.
From mid-March 2010 on, Riley continued to use intermittent leave. She recertified her
leave on five occasions. See id. at 17-44. In each instance, her treating physician assistant
explained that her condition was “lifelong” and that “during excerbation [sic],” she was unable to
“perform any work” or “function.” Id. at 14; 18; 22; 26; 31; and 42. In addition, Riley took a
block medical leave from September 18, 2013, through October 31, 2013, for frequent panic
attacks. See id. at 35-38. In that leave certification, Riley’s nurse explained that Riley was
unable to perform essential job functions due to her condition, stating that she was “unable to
interact well with others [at] this time.” Id. at 36.
Outside Incident with Public Housing Recipient
On March 30, 2010, Riley and Nichole Tarrant, a public housing recipient, got into a
physical altercation. Tarrant was dating Riley’s daughter’s father, and Riley’s daughter was at
Tarrant’s home that day. Riley went to Tarrant’s home to pick up her daughter. Her daughter
came outside and told Riley that she did not want to leave. Her daughter then went back inside
Tarrant’s house. Tarrant closed and locked the screen door. Riley punched through the screen
and unlocked the door. Tarrant then went outside, and the two women engaged in a physical
altercation. Riley was charged with battery and criminal mischief and pled guilty to criminal
mischief. She informed KHA of the incident.
In April 2010, Riley was transferred out of her HCVP front desk position. She then split
her time between the HCVP office and a new position in the public housing office. Dkt. No. 791 at 14. Her new position was titled community services clerk/low rent public housing clerk.1
Dkt. No. 79-1 at 14. Carol Kindlesparker, another KHA employee, was transferred to the HCVP
office to take over Riley’s former duties. When working in the HCVP location, Riley worked
out of a small filing room/closet because Kindlesparker sat at the front desk location.
Effective December 1, 2010, Riley was promoted to the position of low rent application
processing clerk in the public housing program. Id. She received a pay raise of nearly
$4,000.00. Id. Her duties included processing applications for low rent public housing,
interviewing applicants, maintaining a wait list and applicant files, and communicating with
applicants when units became available. Id. at 16; see also Dkt. No. 61 at 6. She no longer
KHA asserts that Riley’s new position as of April 26, 2010, was “Public Housing
Services Clerk,” and, on May 17, 2010, her title became “Low Rent Services Clerk/Leasing
Specialist Trainee,” and she no longer split her time between the two offices, instead working
exclusively in the public housing office. Dkt. No. 60-4 at 4-5. Although Riley disputes the titles
and asserts that no reasons were given for the transfers, she does not dispute the timing of the job
changes. See Dkt. No. 80 at 4-5.
worked in the small filing room/closet or had access to HCVP recipients’ files. She remained in
this position until her termination on May 12, 2014.
Riley’s Complaints Regarding Co-Workers
In May 2010, Riley complained to Young about a co-worker, Mary Sarra. Dkt. No. 79-1
at 36. She complained that Sarra made “belligerent comments,” sent “sexual[-]in[-]nature
forwards,” smelled like alcohol and was sent home for a hangover, had her bills paid by another
employee, and otherwise received “extreme preferential treatment.” Id. Riley also made several
complaints about another co-worker, Joe Milam. Id. at 35. In 2012, she complained that Milam
“wears jeans any day (not just Friday’s [sic]) and wears them so low that the crack of his bottom
has been exposed multiple times . . . all the staff finds offensive to the point of it being a sexual
harassment issue.” Dkt. No. 65 at 107; see also Dkt. No. 79-1 at 63 (“wearing his pants the way
he does on a daily basis, that’s sexual harassment, when I can see his bottom every single day”).
In both 2012 and 2013, she complained that Milam made derogatory comments about public
housing recipients, implying that “[they] deserve less because [they are] low income,” Dkt. No.
79-1 at 69; see also Dkt. No. 65 at 107 (“When he is talking to us in our office[,] he uses very
derogatory language, talks down about the clients and procedure of KHA.”). She also
complained that “he believed that bedbugs were a behavioral issue,” Dkt. No. 79-1 at 70, and
that, in April 2014, he “made the comment that . . . mental illness and substance abuse goes [sic]
hand in hand,” Dkt. No. 79-1 at 69-70. In addition, she complained that Milam ate breakfast on
the clock and “is constantly on his cell phone with his wife, mother, day care centers for his child
. . . handling personal business at work since his first day.” Dkt. No. 65 at 107.
Riley also complained more than once to Morrow that Tina Bellis, her direct supervisor,
touched and kissed her. She “let [Morrow] know that . . . [Bellis will] put her arm around you,
give you a kiss on the cheek. She’ll set her breast -- like walk up so close to you and just kind of
set her breasts on you.” Dkt. No. 79-1 at 71. Riley explained that “[s]he didn’t just do it to me,
she did it to other men in the office, the other ladies in the office, so it wasn’t just me.” Id. at 72.
After they had sexual harassment training, Riley told Morrow that Bellis’s behavior “was getting
to the point to where it was considered sexual harassment, as far as the handbook is concerned.”
Id. at 71. After that complaint, the behavior stopped. Id. Morrow investigated Riley’s
complaints and issued a memorandum on December 31, 2012, explaining that she counseled
Bellis regarding the behavior. See Dkt. No. 65 at 109. Riley made several other complaints
about Bellis, including about how she had a “very offensive odor,” “will scratch her private
area,” and “is not aware of how to do the most simple of things in the office.” Id. at 107.
Complaints about Riley from Co-Workers
During Riley’s employment, KHA received various complaints about Riley from her coworkers. Kindlesparker sent Morrow a memorandum on March 13, 2013, complaining about
Riley’s tone, that she was “not friendly, very monotone and very hateful toward [her]” and
Bellis. Dkt. No. 65 at 61. Milam also complained about Riley. Dkt. No. 79-1 at 35. Cook did
not address these complaints with Riley.
Cook received reports from others complaining of Riley’s negative attitude toward coworkers. Dkt. No. 60-1 at 5. For example, she learned of the following interactions prior to
Riley’s termination. On March 13, 2014, Jay Byars, who had recently moved from maintenance
into administration, sent Riley an email asking Riley to explain the process for filling empty
rental units. Dkt. No. 65 at 62-63. Byars acknowledged that he was “still learning the whole
process,” but thought that prospective tenants had 24 hours to respond that they were interested
in obtaining housing rather than 72 hours, as he believed Riley had told him when they had
spoken the week before. Id. at 62. Riley responded by explaining the process to him and
concluded her message saying, “if you don’t believe someone is doing their job correctly then
say something.” Id. Riley did not find her response to be disrespectful, but agreed that it was
defensive “to a certain extent maybe.” Dkt. No. 79-1 at 38. She was offended because “[Byars]
was acting as though [she] didn’t know how to do [her] job, but [he acted like] he knew what he
was doing. He had just started.” Id. at 39.
Cook also learned that on April 16, 2014, Bellis sent an email to Riley explaining the
process for handling online pre-applications. See Dkt. No. 60-1 at 5 (citing Dkt. No. 65 at 60).
It was in response to a conversation that they had had earlier with Kindlesparker. The next day,
Riley responded that she understood what her responsibilities were and added, “[a]lthough I
don’t understand where this random email came from and why you are speaking to me as if I am
unaware of my job.” Dkt. No. 65 at 60. In response to Bellis’s request that Riley note when she
gets no response from a housing applicant or when she learns that a telephone number is
disconnected, Riley stated “I am also competent enough to know to keep notes if a number is
disconnected or an email is invalid when trying to contact somebody.” Id. In her deposition
Riley explained that she took a defensive tone in response to Bellis’s email, but denied that she
was unprofessional. Instead, she believed Bellis’s email was unprofessional for the following
She’s talking about a situation she didn’t know anything about. She’s talking about
a conversation that she involved herself in. And when I asked her for her opinion,
she said that she didn’t know anything about it. Now all of a sudden she sends me
an email all of an [sic] sudden knowing everything about it.
Dkt. No. 79-1 at 36.
On April 22, 2014, Kindlesparker complained to Morrow and Cook that Riley argued
with her and was upset about the pre-application process when Kindlesparker told her that people
who come into the office were to complete the online pre-application rather than filling out paper
applications. Dkt. No. 60-1 at 19.
On March 7, 2014, Riley received a written warning for insubordination and a policy
violation. See Dkt. No. 79-14. The warning explained that Riley “arranged a [t]ransfer” of a
tenant from one public housing unit to another without an approval of the tenant’s transfer
request or a completed move-out inspection. Id. On March 6, 2014, Riley scheduled an
appointment for a current tenant, who happened to be her friend, to visit a unit. Dkt. No. 79-1 at
41-42. The same day, Riley sent an email to Margaret King, a KHA leasing specialist, providing
the tenant’s name and explaining, “There is no app[lication]. She would be transfer.” Dkt. No.
65 at 67. King requested the tenant’s file from Riley, and Riley stated that she would have the
tenant’s file sent to her. Id. From the information Riley provided to her, King assumed that the
tenant was already approved for the transfer, id., so she leased the property to the tenant, Dkt.
No. 60-4 at 25. Because the tenant had not been approved for the transfer, King received a
verbal warning for leasing the property. See id.
Riley does not dispute that she received a written warning for arranging the transfer. She
signed the disciplinary warning. See Dkt. No. 79-14. However, she argues that she was falsely
blamed for the unapproved transfer. Dkt. No. 80 at 7. She did not have the authority to
authorize a transfer. Id. Riley contends that her only involvement in the transfer process is to
schedule appointments for prospective tenants to see units. Dkt. No. 79-1 at 41-42. The tenant’s
name was on her transfer list, so she scheduled an appointment. Id. at 43. The Court
summarizes the normal process for a tenant seeking to transfer as follows: The tenant submits a
written request to transfer. That transfer request is then either approved or denied by Bellis or
Kearnes. See id. Approved tenants then have their names given to Riley so that she can call
them to set up appointments for them to visit an available unit. Id. Riley stated that, “as far as
[she] was aware,” that process had occurred prior to her calling the tenant “[b]ecause she was on
[Riley’s] list.” Id.
Incident Leading to Termination
On May 7, 2014, Riley learned that people were moving into a housing unit without
completing the standard steps in the process. She believed the move to be unauthorized, so she
went to Kindlesparker’s office and told both Kindlesparker and Bellis, who was in
Kindlesparker’s office at the time, about the situation. Bellis relayed the information to Cook,
and Bellis then told Riley that Cook knew about the move and described it as a special
circumstance. “Riley questioned Bellis’ explanation because KHA did not have special
circumstances.” Dkt. No. 80 at 8. “[S]he was upset that the procedures were not being followed
and only the Kokomo Police Department . . . and Cook knew who was moving into the unit.”
Id.; see also Dkt. No. 79-1 at 51.
At that point, Riley called Cook to talk with her about the matter. Cook told Riley that
she was busy. Riley, still upset, then called the Indianapolis HUD office. See Dkt. No. 79-1 at
53 (responding to the question, “Do you acknowledge that on May 7th you became upset?,”
Riley answered: “When my CEO didn’t follow directions, and she expects everyone else to, yes,
that’s when I called and reported her.”). She spoke with Nathanial Johnson, a HUD intake
analyst. “[She] told him that [she] wanted to report a fraudulent activity or something that [she]
suspected was inappropriate.” Id. at 52. “He told [her] that he would send the information to
Forrest Jones, which was his boss . . . and that [she] should also take it up with the Civil Rights
While discussing the situation with Cook, Bellis complained about Riley’s behavior. She
explained that Riley was at that moment confrontational and disrespectful. Dkt. No. 60-8 at 4.
After Cook learned this information, she instructed Kindlesparker to go to Riley’s office.
Kindlesparker went to Riley’s office and told her that Cook could see her. Instead of going to
Cook’s office, Riley called Cook and told her that she had already reported the incident to
HUD’s Indianapolis office and that she did not need to speak with Cook.2 Cook did not tell
Riley to come to her office during their conversation, but she told Riley that whenever she
complained to the HUD office, “it cost them money.” Dkt. No. 79-1 at 52.
That same day, Cook sent an email to Morrow telling her that “Riley is going to be
suspended for insubordination.” Dkt. No. 79-19 at 1. After Cook sent the email to Morrow, she
created a termination notice. Dkt. No. 80 at 9; see also Dkt. No. 60-1 at 21 (containing metadata
indicating that the termination document was created thirty minutes after Cook’s email to
Morrow). The document was modified the following afternoon, and Cook signed it on Friday,
May 9, 2014.
Riley was absent from work on Thursday, May 8, 2014, and Friday, May 9, 2014. She
took an FMLA day on Thursday and used a vacation day on Friday. See Dkt. No. 79-1 at 60
(Riley explaining that she understood she was allowed only two days of medical leave per week
according to her leave certification and that she had already used one day earlier that week, so
she knew she had to use a vacation day for Friday, May 9, 2014). Bellis and Morrow presented
Riley with the termination notice on Monday, May 12, 2014, when she returned to work. The
termination notice indicated that Riley was terminated for “Lack of Cooperation/Teamwork,”
KHA disputes that Riley told Cook that she called HUD’s Indianapolis office. See Dkt.
No. 61 at 32. For purposes of this Entry, the Court accepts as true that Cook knew that Riley
called HUD on May 7, 2014.
“Violation of KHA Rules of Conduct,” “Insubordination,” and “Improper Conduct.” Dkt. No.
79-20 at 1.
On March 6, 2015, Riley, along with two additional plaintiffs, filed suit in this Court,
seeking legal and injunctive relief for various federal law violations.3 Riley asserts several
Discrimination, retaliation, and failure to accommodate claims under the Americans with
Disabilities Act (“ADA”);
Retaliation under Title VII of the Civil Rights Act;
FMLA interference and retaliation claims;
Retaliation under the Fair Housing Act (“FHA”);
Claims pursuant to 42 U.S.C. § 1981 in relation to her FHA, ADA, and Title VII claims;
Claims pursuant to 42 U.S.C. §§ 1983 and 1985 with respect to her FHA discrimination
and retaliation claims.
See Dkt. No. 1 at 9-11.
In response to the Defendant’s motion for summary judgment, Riley clarifies that she
does not assert sex or race discrimination claims or a hostile work environment claim under Title
VII and that she will not pursue any claims under 42 U.S.C. §§ 1981, 1983, or 1985. See Dkt.
No. 80 at 25-26 and 34, respectively.
Two additional plaintiffs in this case, Kathryn Knight and Jodonna Brown, were
dismissed following the parties’ submission of joint motions to dismiss their claims. See Dkt.
Nos. 43 & 56, respectively.
The Defendant moves for summary judgment as to all of Riley’s remaining claims. Each
claim is addressed, in turn, below.
The Court understands Riley to allege three separate claims under the ADA: a failure to
accommodate claim, a disparate treatment claim, and a retaliation claim for opposing disability
Failure to Accommodate Claim
KHA maintains that summary judgment is appropriate with respect to Riley’s failure to
accommodate claim because she did not exhaust her administrative remedies with respect to this
claim. Dkt. No. 61 at 21.
Before bringing a lawsuit alleging violations of the ADA, a plaintiff must file a charge of
discrimination with the EEOC. 42 U.S.C. § 2000e-5. Claims that are not raised in an EEOC
charge may only be brought in a lawsuit if they are “‘ reasonably related to one of the EEOC
charges and  can be expected to develop from an investigation into the charges actually
raised.’” Whitaker v. Milwaukee Cty., Wis., 772 F.3d 802, 812 (7th Cir. 2014) (quoting Green v.
Nat’l Steel Corp., Midwest Div., 197 F.3d 894, 898 (7th Cir. 1999)). “[T]he EEOC charge and
the complaint must, at a minimum, ‘describe the same conduct and implicate the same
individuals’” for claims to be reasonably related to one another. Whitaker, 772 F.3d at 812-13
(quoting Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 501 (7th Cir. 1994) (emphasis in original)).
Whether Riley’s failure to accommodate claim is within the scope of her EEOC charge is a
question of law. Moore v. Vital Prods., Inc., 641 F.3d 253, 2557 (7th Cir. 2011) (analyzing
claims under Title VII) (citing Conner v. Ill. Dep’t of Nat. Res., 413 F.3d 675, 680 (7th Cir.
Riley did not assert a failure to accommodate claim in her EEOC charge or include in her
charge any facts supporting such a claim. Riley’s complaint also omitted any facts supporting a
failure to accommodate claim, even though she asserted there that KHA failed to accommodate
her. Riley first asserted specific instances of KHA’s failure to provide reasonable
accommodation in her response in opposition to KHA’s motion for summary judgment. There,
Riley asserted that she was not granted additional medical leave following the May 7, 2014,
incident; was denied a request to not be left alone while at work; was initially denied an
accommodation, which she received three months later, for light sensitivity; and was not
provided “the accommodation of talking to [her] about any problem on May 12 [her termination
date] when she was not as upset, stressed and anxious.” Dkt. No. 80 at 25.
Riley does not respond to KHA’s arguments; nor does she argue that her failure to
accommodate claim is reasonably related to any claim brought in her EEOC charge or expected
to develop from an investigation into the claims raised in her charge. Even if she had, it is clear
from the filings in this case that the conduct alleged in Riley’s EEOC charge does not describe
the same conduct she first raises in her response to KHA’s motion for summary judgment.4
Riley’s failure to accommodate claim is barred because she failed to exhaust her
administrative remedy with respect to that claim, and the claims brought in her EEOC charge are
not reasonably related to a failure to accommodate claim. Moreover, the Seventh Circuit has
said that “one cannot expect a failure to accommodate claim to develop from an investigation
Although Riley implicates two individuals, Morrow and Cook, in both her EEOC
charge and her brief, that commonality is insufficient to link her failure to accommodate claim to
the factually distinct claims asserted in her EEOC charge.
into a claim that an employee was terminated because of a disability [or similarly, unlawful
retaliation].” Green, 197 F.3d at 898. Accordingly, the Court GRANTS summary judgment in
favor of KHA with respect to Riley’s failure to accommodate claim.
The ADA prohibits employers from “discriminat[ing] against a qualified individual on
the basis of disability . . . .” 42 U.S.C. § 12112(a). Riley appears to claim that she was
discriminated against because of a disability. Riley, however, has not developed her claim. The
fundamental inquiry at the summary judgment stage is, “has the non-moving party produced
sufficient evidence to support a jury verdict of intentional discrimination?” David v. Bd. of Trs.
of Cmty. Coll. Dist. No. 508, 846 F.3d 216, 224 (7th Cir. 2017) (citing Morgan v. SVT, LLC, 724
F.3d 990, 997 (7th Cir. 2013) (“The central question at issue is whether the employer acted on
account of the plaintiff's . . . disability . . . .”)). In other words, the test “is simply whether the
evidence would permit a reasonable factfinder to conclude that the plaintiff's [disability] caused
the discharge or other adverse employment action.” Ortiz v. Werner Enters., Inc., 834 F.3d 760,
765 (7th Cir. 2016). While Riley lists a number of actions that she considers adverse, she has not
pointed the Court to evidence that would permit a reasonable factfinder to conclude that her
disability caused the adverse actions; nor has she even attempted to articulate why she believes
that KHA took any actions on account of her disability. “‘[A] district court is not required to
scour the record looking for factual disputes [or] to scour the party’s various submissions to
piece together appropriate arguments. A court need not make the lawyer’s case.’” Diadenko v.
Folino, 741 F.3d 751, 757 (7th Cir. 2013) (quoting Little v. Cox’s Supermarkets, 71 F.3d 637,
641 (7th Cir. 1995) (internal citation omitted)). Of aid to the Court would have been a cogent,
well-organized argument properly supported by record evidence and legal authority that
responded to the issues raised by KHA. Without developed arguments and evidence to support
it, Riley’s discrimination claim fails, and the Court GRANTS summary judgment in favor of
KHA on this claim.
Riley asserts that KHA retaliated against her for opposing race, sex, and disability
discrimination. Compl. ¶¶ 87; 91. She claims that she was retaliated against for exercising her
rights under Title VII, the FMLA, and the FHA. Title VII and the ADA “forbid employer
actions that ‘discriminate against’ an employee . . . because he has ‘opposed’ a practice that Title
VII [or the ADA] forbids or has ‘made a charge, testified, assisted, or participated in’ a Title VII
[or ADA] ‘investigation, proceeding, or hearing.’” Burlington N. and Santa Fe Ry. Co. v. White,
548 U.S. 53, 59 (2006) (quoting 42 U.S.C. § 2000e-3(a), discussing Title VII); see also 42
U.S.C. § 12203 (same related to acts or practices made unlawful by the ADA). The FHA
protects individuals from retaliation as well. See 42 U.S.C. § 3617 (“It shall be unlawful to
coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on
account of his having exercised or enjoyed, or on account of his having aided or encouraged any
other person in the exercise or enjoyment of, any right granted or protected by section 3603,
3604, 3605, or 3606 of [the FHA].”). The Court will address each of Riley’s claims below.
Title VII and ADA Retaliation Claims
In a section entitled, “Riley’s Title VII and ADA Retaliation Claims Fail As A Matter of
Law,” KHA makes the following arguments:
None of the conduct Riley challenges, except for her termination, constitutes a materially
Most of Riley’s complaints to KHA are not protected activities under Title VII or the
ADA because she was not opposing unlawful discrimination;
Riley offers no evidence to establish any protected activity was the “but for” cause of her
termination or any other alleged adverse action;
Riley does not provide any evidence demonstrating a causal connection between her
alleged Title VII or ADA protected activities and any adverse employment action;
Temporal proximity between any protected activity and adverse action is insufficient to
establish a causal connection;
Riley fails to show that she was treated differently from a similarly situated comparator
who did not complain of discrimination; and
Riley fails to show that KHA’s actions were pretextual.
See Dkt. No. 61 at 23-27.
Riley makes no coherent argument responding to KHA’s contentions. Most importantly,
she has not demonstrated that there is any evidence to support a causal connection between her
complaints to KHA and any adverse action. The entirety of Riley’s response to KHA’s
arguments on these issues is as follows:
Riley’s Title VII And ADA Retaliation Claims Do Not Fail As A Matter of
KHA does not dispute that the termination was an adverse action. Dkt.
[No.] 61 at 24:10 [sic]. KHA recognizes that Riley was in a fragile mental state
“with [sic] several mental disorders and took extensive medical leave at the
Housing Authority.” Dkt. [No.] 61 at 1. “The Housing Authority also regularly
drove Riley home when she requested a ride after [sic] a seizure.” Dkt. [No.] 61 at
15:9-10. KHA delayed accommodations and lied to her and told her that she had
exhausted her FMLA leave. Dkt. [No.] 61 at 22:3 [sic]; Dkt. [No.] 79-1 at 24-25
(Riley Dep. 95:20-98:5); Dkt. [No.] 79-7. KHA knew of Riley’s particular
vulnerability because of mental disorders that increased her stress and anxiety.
KHA did not provide accommodations of granting her ADA leave, not stressing
her when she was already stressed, not trying to dissuade her from complaining,
calling her if there was any problem, and talking to her about any problem when
she returned to work after having two seizure episodes. KHA’s actions would have
more of an effect on a mentally fragile person like Riley with a vulnerability even
before KHA terminated her. Washington, 420 F.3d at 661-662 [sic].
The actions of KHA of threatening to evict Riley from her housing might
also dissuade a reasonable person from complaining. Burlington Northern, supra.
In fact, a lesser threat made verbally by the CEO to Knight did dissuade her from
complaining, and she withdrew her complaint of discrimination from HUD. Dkt.
[No.] 79-2 at 9-10 (Knight Dep. 34:16-39:18).
With regard to Riley, KHA’s threats and actions to try to evict her were
even more dissuading, because KHA had already falsely accused her of
insubordination twice, terminated her employment, made it difficult for her to find
work in Kokomo, and caused her to have to go to Indianapolis to find part-time
work and leave her KHA housing.
KHA also cites Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 902 (7th
Cir. 2003) as requiring tangible job consequences, but that was before Burlington
Northern, supra. Furthermore, Riley had already suffered the consequences of
having to be admitted to the hospital because of the stress and being terminated
about a week after she returned to work from the hospital.
KHA argues that sexual desire is required for a complaint of sexual
harassment, but of course, that is not true. Oncale v. Sundowner Offshore Servs.,
Inc. [sic] 523 U.S. 75, 80 (1998). Sexually offensive acts such as exposing body
parts, rubbing body parts, and stereotyping persons is [sic] just as unlawful.
KHA implies that direct evidence is required for the direct method, which
of course, is not true either, as explained again in the Ortiz decision.
KHA argues a “but for” standard for retaliation, but it has been clarified that
the “but for” standard is the usual standard for most cases of a straw that broke the
camel’s back. Burrage v. U.S., 571 U.S. __, __, 134 S.Ct. 881, 888 (2014); Seventh
Circuit Pattern Civil Jury Instruction 3.02. Riley’s case is not the rare mixedmotives case in which a lesser standard applies.
KHA argues the evidence from 2011 and 2012, but ignores the evidence
KHA argues that Riley was not treated differently from other employees,
but that is not true. Riley was treated differently from [the co-worker who received
an oral warning] and all of the other employees who arranged the transfer of [the
tenant in March 2014]. Riley was treated differently from all other employees who
used white out to correct dates. Riley was treated differently after she corrected the
date of Brown’s application than she was before 2014 when she requested ADA
accommodation leave and other accommodations such as not being required to
work alone, calling her if there was a problem, and not increasing her stress and
KHA makes a cursory statement that KHA’s reasons were not pretexual,
but KHA engaged in a long series of actions that are evidence of the pretext of its
actions, as described in detail earlier.
Dkt. No. 80 at 26-28.
This falls far short of the type of cogent argument this Court is entitled to expect from
counsel. It is possible that Riley’s counsel believes that statements scattered throughout his
response brief might support Riley’s retaliation claims, and perhaps, were they presented in an
orderly manner, they might. However, the adage that “Judges are not like pigs, hunting for
truffles buried in briefs” applies here. U.S. v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991). The
Court will not make a party’s arguments for her, nor will it assemble the evidence necessary to
support her position. Corley v. Rosewood Care Ctr., Inc. of Peoria, 388 F.3d 990, 1001 (7th Cir.
2004) (“[W]e will not root through the hundreds of documents and thousands of pages that make
up the record here to make his case for him.”); Herman, 870 F.2d at 404 (“A district court need
not scour the record to make the case of a party who does nothing.”). Courts are entitled to
assistance from counsel: “An advocate’s job is to make it easy for the court to rule in his client’s
favor.” Dal Pozzo v. Basic Mach. Co., 463 F.3d 609, 613 (7th Cir. 2006). When counsel instead
presents the Court with a rat’s nest, the Court refuses to dismantle it, as doing so would impose
an extraordinary burden on the Court’s limited resources. As a result, the Court GRANTS
summary judgment in KHA’s favor with respect to Riley’s Title VII and ADA retaliation claims.
Here, Riley refers to an argument KHA makes regarding after-acquired evidence that it
believes would limit potential damages in this case. The Court has not included in this Entry the
facts that support that argument because they are not relevant to the motion at issue.
FHA Retaliation Claim
Riley asserts that “[t]he Defendant intentionally, with malice, and with deliberate
indifference, conspired and discriminated in making unavailable and denying full use of a
dwelling and in the provision of employment and services to Angela Riley because she had
complained about disability, race and sex discrimination and was associated with, aided and
assisted, and was a witness for other residents in exercising their rights in opposing
discrimination.”6 Compl. ¶ 93. The FHA makes it unlawful to “coerce, intimidate, threaten, or
interfere with any person in the exercise or enjoyment of, or on account of his having exercised
or enjoyed, or on account of his having aided or encouraged any other person in the exercise or
enjoyment of, any right granted or protected by section 3603, 3604, 3605 or 3606 of [the FHA].”
42 U.S.C. § 3617. Retaliation claims brought pursuant to FHA are similar to retaliation claims
brought under Title VII. Kyles v. J.K. Guardian Sec. Servs., Inc., 222 F.3d 289, 295 (7th Cir.
2000) (“provisions of [FHA and Title VII] are given like construction and application”).
KHA argues that Riley’s FHA retaliation claim fails because she did not engage in
protected activity under the FHA when she complained to HUD; the retaliatory acts that she
alleges, other than her termination, do not constitute adverse actions under the FHA; and she
cannot prove a causal connection between any protected activity and an adverse action. Dkt. No.
61 at 30-32.
While this complaint allegation potentially conflates various causes of action under the
FHA, Riley refers only to “FHA Retaliation” in her briefing and develops no arguments
regarding any other possible claim under the FHA. See, e.g., Dkt. No. 80 at 33. As such, the
Court examines this claim only.
KHA contends that Riley’s complaint to HUD was not protected activity because she did
not protest or oppose discrimination prohibited by the FHA.7 Riley’s FHA retaliation claim
stems from a complaint she made to HUD’s Indianapolis office on May 7, 2014. As previously
stated, Riley learned that people were moving into a housing unit without completing the
standard steps in the process. She believed the move to be unauthorized, so she went to
Kindlesparker’s office and told both Kindlesparker and Bellis about the situation. Bellis relayed
the information to Cook, and Bellis then told Riley that Cook knew about the move and
described it as a special circumstance. “Riley questioned Bellis’ explanation because KHA did
not have special circumstances.” Dkt. No. 80 at 8. “[S]he was upset that the procedures were
not being followed and only the Kokomo Police Department . . . and Cook knew who was
moving into the unit.” Dkt. No. 80 at 8; see also Dkt. No. 79-1 at 51.
At that point, Riley called Cook to talk with her about the matter. Cook told Riley that
she was busy. Riley, still upset, then called the Indianapolis HUD office. See Dkt. No. 79-1 at
53 (In response to being asked, “Do you acknowledge that on May 7th you became upset?,”
Riley answered: “When my CEO didn’t follow directions, and she expects everyone else to, yes,
that’s when I called and reported her.”). She spoke with Nathanial Johnson, a HUD intake
analyst. “[She] told him that [she] wanted to report a fraudulent activity or something that [she]
suspected was inappropriate.” Dkt. No. 79-1 at 52. “He told [her] that he would send the
information to Forrest Jones, which was his boss . . . and that [she] should also take it up with the
Civil Rights Department.” Id.
KHA also contends that Cook did not know that Riley made a complaint to HUD on
May 7, 2014. Dkt. No. 61 at 32 (“Riley claims she told Cook that she did not need to meet with
her because she had already called ‘Indianapolis,’ but Riley said nothing about calling HUD - let
alone discuss the content of her call to ‘Indianapolis.’”). As previously indicated, for purposes of
this Entry, the Court accepts as true that Cook knew that Riley called HUD on May 7, 2014.
In Riley’s surreply, she contends that, in her May 7, 2014, call to HUD, she “was
complaining about the different treatment of her being disciplined for allegedly transferring
someone without proper paperwork compared to other employees who were not being
disciplined for placing tenants in a unit without any paperwork at all.” Dkt. No. 89 at 15. She
further contends that she “complained that putting unknown persons in housing ahead of others
was discrimination.” Id. These contentions are not supported by the record evidence. The
record evidence supports KHA’s contention: Riley stated in her deposition testimony that, when
she called the intake analyst at HUD’s Indianapolis office on May 7, 2014, referring to KHA
allowing the occupancy of a unit without the completion of the normal paperwork, “[she] told
him that [she] wanted to report a fraudulent activity or something that [she] suspected was
inappropriate.” Dkt. No. 79-1 at 52. “He told [her] that he would send the information to Forrest
Jones, which was his boss . . . and that [she] should also take it up with the Civil Rights
Department.” Id. Although Riley’s deposition testimony mentions “the Civil Rights
Department,” she does not describe that she complained about discrimination or referred to any
protected class that was suffering unlawful discrimination under the FHA. With this particular
complaint, Riley did not engage in protected activity. Accordingly, it cannot form the basis of a
retaliation claim under the FHA.
In her briefings, Riley does not develop an argument regarding any other potentially
protected activity under the FHA that might form the basis of her FHA retaliation claim. Instead,
in her response brief, as in her surreply, she focuses on the May 7, 2014, complaint to HUD. As
KHA correctly points out, Riley’s explanation of her complaint to HUD describes a complaint
related to her employment with KHA, not a complaint protected by the FHA. The entirety of her
response to KHA’s FHA retaliation arguments is as follows:
Riley’s FHA Retaliation Claims Do Not Fail As A Matter of Law.
KHA argues that Riley’s call to HUD was not protected activity, but it was
part of a long series of complaints of discrimination by Riley, including complaints
of discrimination based on sex, race, disability, FMLA, and retaliation. KHA knew
that when Riley complained, it was about the different treatment of other employees
who moved in a tenant without proper paperwork approval when she had just two
months earlier been given a written reprimand for the same thing and she was not
even guilty of it. When Riley gave the information to HUD, HUD told her to call
the Civil Rights Department. Dkt. [No.] 79-1 at 52 (Riley Dep. 206:1-2, 207:1).
Riley’s termination was the culmination of all of her acts of opposing
discrimination and requesting FMLA.
KHA admits that the termination was an adverse action. KHA argues that
all of the acts of interference were not serious, but the combination of delayed
maintenance, multiple notices of eviction, telling Riley’s primary witness Knight
to especially not go on Riley’s premises, and KHA’s attempts to have Riley arrested
on false charges caused Riley to not have housing rights and to have to move to
Indianapolis. KHA cites decisions that do not involve the extensive prior
complaints of discrimination that Riley made and the particular fragile vulnerability
that Riley was in at the time. KHA does not argue that the actions against Riley
might not dissuade a person from complaining about discrimination. Burlington
KHA argues that Cook did not know that Riley called HUD, but that is
disputed and contrary to the evidence. First, the whole KHA office knew that Riley
was complaining to HUD. Employees in the office heard Riley call the Indianapolis
HUD office and complain about the different treatment she received. Dkt. [No.]
79-1 at 54 (Riley Dep. 213:5-21).8[ ]KHA even admits that Riley told Cook that
The cited deposition testimony does not support Riley’s contention that “[e]mployees
in the office heard Riley complain [to HUD] about the different treatment she received.” The
full deposition testimony cited follows here:
Okay. Do you believe that anyone overheard you talking with Mr. Johnson
Yes. My door was open. I wasn’t trying to hide that.
Do you have any evidence, anything that you would point to, to say it shows
that [Kindlesparker] or [Bellis] knew you were talking to HUD?
Of course they knew. I had just got off the phone with Margaret and let her
know that I had just called HUD. They whole office knew that I was
speaking to HUD, all of them. They knew I was going to report it. If she
didn’t speak to me, and nobody could explain to me what was going on, I
was reporting it to the Indianapolis office. I didn’t keep it a secret. I wasn’t
trying to be secretive in any way, shape or form.
she had already complained to the Indianapolis office and they were handling the
matter. No one claims that they did not know what the Indianapolis office was.
Riley had complained about discrimination for years, and she was complaining that
other employees were allowed to move in persons without proper paperwork but
she had been treated differently and had been given a written reprimand for
insubordination for supposedly doing the same thing and she was not even guilty
Dkt. No. 80 at 33-34. Nothing in this argument changes the fact that, while Riley may have
believed she was being treated differently from other employees, her complaint to HUD did not
mention any discrimination based on any protected class or involve any right granted or
protected by the FHA. See 42 U.S.C. § 3617.
Any other arguments that could potentially support her FHA retaliation claim remain
entirely undeveloped. Again, the Court need not construct arguments for the parties. Economy
Folding Box Corp., 515 F.3d at 721; see also Puffer v. Allstate Ins. Co., 675 F.3d 709, 720 (7th
Cir. 2012) (plaintiff employee waived claim on appeal because she “did not meaningfully
develop an argument” at the district court level). Because Riley has not shown that she engaged
in activity protected under the FHA, and because she does not develop any other arguments
supporting a claim for retaliation under the FHA, she has not met her burden, and the Court
GRANTS summary judgment in favor of KHA on Riley’s FHA retaliation claim.
Riley asserts that she did not receive FMLA leave to which she was entitled and also that
she was retaliated against in violation of the FMLA. An employer may not interfere with an
eligible employee’s rights under the FMLA or discriminate against an eligible employee who
needs FMLA leave. 29 U.S.C. § 2615. The statute also prohibits employers from retaliating
against an eligible employee for opposing any practice made unlawful by the FMLA. Id.
Dkt. No. 79-1 at 54 (Riley Dep. 213:5-21).
KHA argues that Riley was not an “eligible employee” as defined by the FMLA because
KHA did not employ fifty or more employees. If Riley was not an eligible employee within the
meaning of the statute, she would not have been entitled to the statute’s benefits and protections.
The statute, Code of Federal Regulations, and the Seventh Circuit recognize that, for the FMLA
to apply, public agency employers, including KHA, must employ fifty or more employees within
75 miles of the employee’s worksite. The Seventh Circuit has succinctly described the
requirement as follows:
The FMLA generally applies only to employers with 50 or more employees,
but the statute treats public agencies differently. The FMLA specifies that public
agencies are “employers” under the statute regardless of the number of employees.
29 U.S.C. § 2611(4)(A)(3); 29 C.F.R. § 825.108(d). That numerical limitation,
however, is resurrected elsewhere in the FMLA, which limits eligibility for FMLA
protections to “eligible employees.” 29 U.S.C. § 2611(2)(B)(ii). The term “eligible
employee” in the FMLA excludes “any employee of an employer who is employed
at a worksite at which such employer employs less than 50 employees if the total
number of employees employed by that employer within 75 miles of that worksite
is less than 50.” 29 U.S.C. § 2611(2)(B). The regulations make clear that this
provision applies to public agencies, stating “employees of public agencies must
meet all of the requirements of eligibility, including the requirement that the
employer . . . employed 50 employees at the worksite or within 75 miles.” 29
C.F.R. § 825.108(d). Therefore, even though public agencies fall within the FMLA
regardless of the number of employees, those employees cannot seek FMLA
benefits unless the agency employed at least 50 employees within a 75 mile area.
Fain v. Wayne Cty. Auditor’s Office, 388 F.3d 257, 259 (7th Cir. 2004).
The fifty employee threshold “to ascertain an employee’s eligibility for FMLA benefits is
determined when the employee gives notice of the need for leave.” 29 C.F.R. § 825.110(e).
“[T]he employee’s eligibility is not affected by any subsequent change in the number of
employees employed at or within 75 miles of the employee’s worksite, for that specific notice of
the need for leave.” Id.
Riley sought leave in mid-March 2010. At that time, KHA had 42 employees. See Dkt.
No. 86-1 at 10-13. Moreover, Morrow and Cook both declared that “[KHA] did not employ 50
or more employees at any time from March 18, 2010 to May 12, 2014,” the time spanning from
Riley’s initial FMLA certification to her termination date.9 See Dkt. Nos. 60-4 at 4 & 86-1 at 3.
In opposition to KHA’s evidence, Riley states that “KHA told employees that they were covered
by the FMLA” and that “Riley testified that KHA had to have had more than fifty employees
based on Riley’s personal observation of KHA’s actions.” Dkt. No. 80 at 28 & 29 (citing Dkt.
No. 79-1 at 17). These statements, however, misconstrue Riley’s testimony. The cited
deposition testimony follows:
All right. Do you know how many employees [KHA] employed when you
were terminated, like how many other employees there were?
There would at least have to be 50 for me to receive FMLA, so I’m going
to have to say at least 50, but no I don’t know an exact count.
Is that an assumption? I mean, do you know for certain that they had 50
For a company to be eligible for FMLA, I believe they have to at least have
50 employees to even, for me to even apply for FMLA. So yeah, they would
have had to have had at least 50 employees.
But do you know other than -Other than just going off law, no, I don’t know that.
Okay. So is it fair to say that you have never -- you didn’t have access to
payroll records when you were working at [KHA]. Correct?
And you didn’t have access to other records that would identify how many
employees [KHA] employed. Correct?
An employee roster, yes -- usually just if they were in an office, and I would
need to contact somebody in an office. There still was an employee roster
for maintenance men and trash men and things like that, but, of course, with
the many different buildings, half of them we never even met. You know,
With its brief in support of its summary judgment motion, KHA provided only
Morrow’s declaration above. In Riley’s response to KHA’s motion, she objects, stating that
“KHA still provides no payroll records on which anyone could make such a conclusory
statement about the records.” Dkt. No. 80 at 29. She further argues that “the failure of KHA to
produce relevant evidence in its possession raises the inference that the evidence is not favorable
to KHA.” Id. at 30. In response to Riley’s objection, with its reply brief, KHA provided Cook’s
declaration and payroll records evidencing KHA’s employee headcount. Cook indicated that the
payroll records were produced to Riley on April 21, 2016. Dkt. No. 86-1 at 3. In her surreply,
Riley does not renew her objection in light of KHA’s response, nor does she provide any
evidence contradicting KHA’s assertions.
some of the ones that worked in Pine Valley, we would see them maybe
once a year, because there was no reason for them to come to our building.
Okay. And so I assume, though, you never counted the number of
Dkt. No. 79-1 at 17.
Riley’s testimony does not contradict KHA’s evidence that it had fewer than fifty
employees. Consequently, Riley has not shown a material factual dispute regarding the number
of individuals employed by KHA. KHA has presented evidence that it did not have the requisite
number of employees to trigger the FMLA. Accordingly, Riley was not an “eligible employee”
under the FMLA.
In response to KHA’s argument, Riley mentions promissory estoppel. Once more,
however, she has failed to develop her argument. “It is the parties’ responsibility to allege facts
and ‘indicate their relevance under the correct legal standard.’” Economy Folding Box Corp. v.
Anchor Frozen Foods Corp., 515 F.3d 718, 721 (7th Cir. 2008) (quoting APS Sports
Collectibles, Inc. v. Sports Time, Inc., 299 F.3d 624, 631 (7th Cir. 2002)). Riley presented no
legal standard at all in her briefing, and although she referred to Peters v. Gilead Sciences, Inc.,
533 F.3d 594 (7th Cir. 2008), a case in which the plaintiff alleged that the employee handbook
provided a basis for a promissory estoppel claim, Riley does not make a similar argument.
Again, “[i]t is not the [C]ourt’s responsibility to research the law and construct the parties’
arguments for them.” Economy Folding Box Corp., 515 F. 3d at 721.
Assuming that Riley’s claim were similar to the claim in Peters, and were based on her
reliance on KHA’s handbook, such a claim would fail. KHA’s employee handbook could not
create a binding contract because it contained broad disclaimers in both the handbook text itself
and in a separate employee acknowledgment, which Riley signed in 2008 and again in 2013,
stating that the employee handbook did not create a binding contract, express or implied. See
Dkt. No. 89-1 at 3 (disclaimer); Dkt No. 60-2 at 95 & 99 (acknowledgments). The disclaimers
foreclose any possibility that Riley could have reasonably relied upon the handbook to create a
promise, and the Seventh Circuit has determined that, under Indiana law, such disclaimers are
effective against claims of both breach of contract and promissory estoppel. Workman v. United
Parcel Serv., Inc., 234 F.3d 998, 1000 (7th Cir. 2000) (“Such a disclaimer, if clear and forthright,
as it is here . . . is a complete defense to a suit for breach of contract based on an employee
handbook.”) (internal citation omitted). Thus, any promissory estoppel claim that Riley could
have developed would have nonetheless failed to survive summary judgment.
Riley also suggests that KHA should be equitably estopped from asserting the defense
that Riley was not an “eligible employee” under the FMLA. See Dkt. No. 89 at 16. She asserts
that “even if KHA had produced payroll records during discovery to substantiate a defense that
Riley was not covered by FMLA, KHA would be estopped from making such a claim because it
told her the opposite during her employment.” Dkt. No. 80 at 30. It is Riley’s burden to
establish equitable estoppel applies in this case. Edgewater Hosp., Inc. v. Bowen, 857 F.2d 1123,
1138 (7th Cir. 1988). Unfortunately, she has, yet again, failed to develop her argument. For a
second time, she altogether neglects to present a legal standard, let alone apply that standard to
the facts in this case. Although she cites to a number of cases in her response brief, not a single
case addresses an equitable estoppel claim. See Dkt. No. 80 at 30. In her surreply, she cites to
three district court cases from other states, two in which the courts deny motions to dismiss
FMLA claims because the plaintiffs raised equitable estoppel arguments, and one in which the
court granted summary judgment to an employer on an FMLA claim after analyzing the
plaintiff’s well-developed equitable estoppel argument. See Dkt. No. 89 at 16. Riley does not
rely on these cases to support any argument other than to show that courts “have recognized that
the doctrine of equitable estoppel applies in FMLA claims.” Id. As has been stated many times
before in this Entry, this Court need not construct arguments for the parties. Economy Folding
Box Corp., 515 F.3d at 721; see also Puffer, 675 F.3d at 720. A party cannot simply throw out a
legal theory and expect the Court to do the work of determining how it applies in the case at
hand. Because Riley does not develop her equitable estoppel argument, she has not met her
burden, and the Court does not address the argument further. Accordingly, summary judgment is
GRANTED in KHA’s favor with regard to Riley’s FMLA claims.
For the foregoing reasons, the Defendants’ Motion for Summary Judgment (Dkt. No. 59)
is GRANTED in its entirety.
SO ORDERED: 3/7/17
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana
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