FORD v. MARION COUNTY SHERIFF'S DEPARTMENT et al

Filing 170

ENTRY ON MOTION TO RECONSIDER RULING ON MOTION FOR SUMMARY JUDGMENT - Ford unreasonably delayed filing her motion to reconsider. In addition, Ford has not provided the Court with any reason to reconsider its summary judgment ruling. Accordingly, the motion to reconsider 164 is DENIED. ***SEE ENTRY*** Signed by Judge William T. Lawrence on 1/16/2018. (JDC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
BRIGID A. FORD,
Plaintiff,
vs.
MARION COUNTY SHERIFF’S
DEPARTMENT, et al.,
Defendants.

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ENTRY ON MOTION TO RECONSIDER RULING ON
MOTION FOR SUMMARY JUDGMENT
This case is before the Court on Plaintiff Brigid Ford’s motion entitled Motion for Relief
Under Rule 60 (Dkt. No. 164). The motion is not properly brought under Federal Rule of Civil
Procedure Rule 60, as no final judgment has been issued in this case and
Rule 60(b) provides that district courts “may relieve a party or its legal
representative from a final judgment, order, or proceeding” for the enumerated
reasons. Fed.R.Civ.P. 60(b) (emphasis added). Thus the rule “applies only to ‘a
final judgment, order, or proceeding.’” 11 Charles Alan Wright, et al., Federal
Practice and Procedure Civil § 2852 (3d ed. 1998).
Mintz v. Caterpillar Inc., 788 F.3d 673, 679 (7th Cir. 2015) (emphasis in original). The Court
will treat Ford’s motion as a motion to reconsider its summary judgment ruling pursuant to the
Court’s “discretion to reconsider an interlocutory judgment or order at any time prior to final
judgment.” Id. (citations omitted). In that context, “‘[a] judge may reexamine his earlier ruling .
. . if he has a conviction at once strong and reasonable that the earlier ruling was wrong, and if
rescinding it would not cause undue harm to the party that had benefited from it.’” HK Sys., Inc.
v. Eaton Corp., 553 F.3d 1086, 1089 (7th Cir. 2009) (quoting Avitia v. Metropolitan Club of
Chicago, Inc., 49 F.3d 1219, 1227 (7th Cir. 1995)).

Considering the latter factor first, reconsidering the summary judgment ruling at this
point in the litigation would “cause undue harm” to the Defendants in this case. The motion to
reconsider was filed less than two weeks prior to the final pretrial conference in this case and
after the Defendants had made their pretrial filings. The summary judgment ruling in question
was entered almost four months ago, and yet Ford waited until now to file the motion to
reconsider, at a time when the Defendants’ trial preparation would be disrupted by the briefing of
the motion. This case already has been pending for more than two years, and the Court does not
find it to be in the interests of justice to continue the trial date simply because Ford decided to
file a last-minute motion to reconsider. Accordingly, the Court denies the motion to reconsider
on the grounds that Ford unreasonably delayed filing it and that delay is prejudicial to the
Defendants.
In addition, the Court finds that the motion fails to support “a conviction at once strong
and reasonable that the earlier ruling was wrong.” Thus, for the reasons set forth below, even in
the absence of Ford’s dilatoriness, the motion would be denied.
First, Ford, citing McKinney v. Office of the Sheriff, 866 F.3d 803, 814 (7th Cir. 2017),
notes that “[t]he briefing on Defendants’ Motion for Summary Judgment was fully completed
before a recent decision in the Seventh Circuit relating to the merits of self-serving testimony.”
Dkt No. 164 at 4. But as the opinion in McKinney notes, it broke no new ground on that issue:
Our cases for at least the past fifteen years teach that “Self-serving affidavits can
indeed be a legitimate method of introducing facts on summary judgment.” Widmar
v. Sun Chemical Corp., 772 F.3d 457, 459–60 (7th Cir. 2014) (citations omitted).
We have tried often to correct “the misconception that evidence presented in a ‘selfserving’ affidavit is never sufficient to thwart a summary judgment motion.” Payne
v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003); see especially Hill v. Tangherlini, 724
F.3d 965, 967 & n.1 (7th Cir. 2013) (overruling earlier cases indicating “selfserving” evidence could not be used to show genuine dispute of fact) (“Deposition
testimony, affidavits, responses to interrogatories, and other written statements by
their nature are self-serving. As we have repeatedly emphasized over the past
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decade, the term ‘self-serving’ must not be used to denigrate perfectly admissible
evidence through which a party tries to present its side of the story at summary
judgment.”) (citations omitted).
McKinney, 866 F.3d at 814. The Court therefore is at a loss to understand the relevance of
McKinney being decided after the summary judgment motion was briefed.
Next, Ford points to a series of footnotes which she says demonstrate that the Court
ignored evidence that she cited in opposition to the summary judgment motion. Each of the
footnotes in question involves a statement in Ford’s statement of facts that the Court found was
not supported by the evidence cited by Ford. Therefore, instead of accepting Ford’s
characterization of the cited evidence, the Court considered the evidence itself. For example,
footnote ten of the summary judgment entry reads as follows:
In her statement of facts, Ford states that “[t]rue to Ford’s fears, Ladd consistently
and repeatedly made negative, insulting remarks about Ford’s disability” and
“Watts also joined Ladd in daily harassing Ford about her disability.” Dkt. No.
133-1 at 16, 17. The evidence cited to supports the proposition that Ford was
subjected to daily harassment from Ladd and Watts, but it does not support the
assertion that the daily harassment was about Ford’s disability. See Ford’s
Declaration, Dkt. No. 75-14 at ¶ 12 (“Ms. Watts joined Ms. Ladd in harassing me
daily.”); Ford’s deposition testimony at 136, Dkt. No. 75-8 at 14 (testifying that
Ladd harassed her on a “frequent and ongoing” basis); Walterman deposition at
29, Dkt. No. 75-13 at 4 (simply stating that he received “complaints or
grievances” from Ford about Ladd, Watts, and Hendricks without characterizing
their nature or frequency); Plaintiff’s Designation of Evidence 36-50, Dkt. Nos.
71-4 through 71-18 (each of which is summarized in the Court’s fact section).
Dkt. No. 135 at 10 n.10. The footnote focused on Ford’s statement in her statement of facts that
she was subjected to daily harassment based on her disability from both Ladd and Watts. The
deposition testimony cited by the Plaintiff in the instant motion simply does not support such a
finding. First, the question Ford was answering asked about “issues” she had with Ladd, and,
indeed, the specific issue about which Ford had been asked immediately prior to the quoted
question and answer did not have anything to do with Ford’s disability, but rather related to

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Ford’s reporting of Ladd’s violation of unrelated work policies. Dkt. No. 75-8 at 14. Second,
Ford’s testimony at that time was not that she was harassed “daily”; indeed, she was unable to
answer whether the harassment occurred hourly, weekly, or monthly, saying “I couldn’t tell you
exactly how many times or how often, but it was frequent.” Id. The Court did not ignore the
evidence presented by Ford regarding the harassment she experienced; rather, the Court declined
to accept Ford’s characterization of that evidence in her statement of facts when that
characterization was not supported by the cited evidence. And, in any event, based on the actual
cited evidence, the Court denied the motion for summary judgment regarding the issue of
whether Ladd and Watts created a hostile work environment.
Similarly, Ford complains about footnote eleven in the summary judgment ruling, which
reads:
In her statement of facts, Ford cites to this email as evidence that “Ford informed
Walterman that Ladd often commented to Ford that she “was tired of these people
who pretend they are disabled just so that they can get special treatment.” Dkt. No.
133-1 at 17 (emphasis added). This email discusses only one instance of Ladd
making that particular comment, and not to Ford, but to someone on the phone; in
fact, Ford stated in the email that “she may have been talking about someone else
but given the comments that she has made before and her continuing (though
intermittent) use of the speaker phone when we are making appointments I can’t
help but take these comments personally.” Dkt. No. 71-5.
The Court disagrees with Ford’s argument that the quoted reference to “comments that she has
made before” supports the quoted statement of fact, which refers to a particular comment being
made often. The Court also has considered Ford’s arguments about footnotes seven, eight, and
nine and finds them similarly unavailing.
Next, Ford argues that the Court erred in denying her motion to strike the testimony of
Dr. Moffatt as undisclosed expert testimony. As the Court explained in its summary judgment
ruling, Dr. Moffatt’s testimony was relevant on summary judgment only as far as he set forth

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what he reported to the Defendants regarding Ford. Whether his medical opinions contained in
those reports were accurate simply was not relevant to the summary judgment ruling; what was
relevant is that he made the reports. As explained in the Court’s summary judgment ruling,
testimony that Dr. Moffatt conducted a review and made a report is simply not expert testimony.
See Dkt. No. 135 at 13 n.12.
Ford’s arguments regarding the Defendants’ failure to assign her to a civilian warrants
position or a dispatcher position were all considered by the Court in making its original ruling.
Ford has presented no reason for the Court to change that ruling. The same is true with regard to
Ford’s arguments regarding the Defendants’ failure to choose Ford for promotions for which she
applied. Ford cannot defeat summary judgment simply by pointing to general evidence of
animus against persons with disabilities by various employees of the Defendant (see Dkt. No.
164 at 22-25); rather, she must point to evidence from which a reasonable jury could determine
that she suffered an adverse action as a result of that animus (or otherwise because of her
disability). The Court’s summary judgment ruling sets forth several ways in which the evidence
cited by Ford in response to the motion for summary judgment fell short in that regard.
Next, Ford argues that the visitation clerk position was not a reasonable accommodation
because she was subjected to harassment in that position. This argument improperly conflates
Ford’s failure to accommodate claim with her harassment claim.
Finally, Ford argues that the Court ignored evidence of harassment by Hendricks prior to
June 2016. The Court did not find that no such harassment occurred, however; rather, as Ford
acknowledges, the Court found that Ford did not point to evidence that showed that Ford “‘put
the Defendants on notice that Ford perceived Hendricks’ actions as harassment based on her
disability’” prior to that date as required for the Defendants to be held liable for harassment.

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Dkt. No. 164 at 25 (quoting Dkt. No. 135 at 41). In the instant motion, Ford points to her June
2015 complaint about various behavior by Hendricks. That complaint, which the Court quoted
in its summary judgment ruling, does not mention disability or any comments or actions that
appear to relate to Ford’s disability. See Dkt. No. 135 at 19-20.
As explained above, Ford unreasonably delayed filing her motion to reconsider. In
addition, Ford has not provided the Court with any reason to reconsider its summary judgment
ruling. Accordingly, the motion to reconsider is DENIED.
SO ORDERED: 1/16/18

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Copies to all counsel of record via electronic notification

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