GIBSON v. INDIANA STATE PERSONNEL DEPARTMENT et al

Filing 121

ORDER ON MOTIONS FOR SUMMARY JUDGMENT - Defendants' motion for summary judgment is GRANTED in part and DENIED in part. Dkt. 99 . Ms. Gibson's cross-motion for partial summary judgment is DENIED. Dkt. 110 . The only remaining claims are (1 ) an FMLA interference claim against ISPD, and (2) deprivation-of-liberty and equal-protection claims via section 1983 against Defendants Darrow, Bayse, Baxter, and Brown. Ms. Gibson SHALL HAVE through May 22, 2020 to respond why the Court should not enter summary judgment for Defendants on her deprivation-of-liberty and equal-protection claims. See Fed. R. Civ. P. 56(f). Defendant Lemmon is DISMISSED; the clerk shall update the docket accordingly. (See Order). Copy to Jessica A. Gibson via U.S. mail. Signed by Judge James Patrick Hanlon on 4/21/2020. (JDH)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JESSICA A. GIBSON,

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Plaintiff,
v.
INDIANA STATE PERSONNEL
DEPARTMENT,
JON DARROW
a/k/a DENNY,
JOHN F. BAYSE,
MATTHEW A. BROWN,
BRUCE BAXTER,
BRUCE LEMMON,
Defendants.

No. 1:17-cv-01212-JPH-TAB

ORDER ON MOTIONS FOR SUMMARY JUDGMENT
After Jessica Gibson’s employment with the Indiana State Personnel
Department (“ISPD”) was terminated, she brought this lawsuit alleging
violations of the Family Medical Leave Act, the Americans with Disabilities Act,
42 U.S.C. § 1983, and Title VII. Defendants—ISPD and several of its
employees—have moved for summary judgment. Dkt. [99]. Ms. Gibson has
cross-moved for partial summary judgment on two § 1983 claims. Dkt. [110].
For the reasons that follow, Defendants’ motion for summary judgment is
GRANTED in part and DENIED in part and Ms. Gibson’s cross-motion for
partial summary judgment is DENIED.

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I.
Facts and Background
The parties have filed cross-motions for summary judgment, so the Court
takes the motions “one at a time.” American Family Mut. Ins. v. Williams, 832
F.3d 645, 648 (7th Cir. 2016). The Court views and recites the evidence and
draws all reasonable inferences “in favor of the non-moving party.” Id.
ISPD hired Ms. Gibson in February 2015 to be the Director of Human
Resources for the Indiana Department of Correction. Dkt. 100-1 at 7 (Gibson
Dep. at 57). A year later, in February 2016, Ms. Gibson told Mr. Bayse—ISPD’s
Deputy Director of Field Operations—that she was stressed and depressed
because of challenges related to being a foster parent. Id. at 19–20 (Gibson
Dep. at 84–85). She also told him that she didn’t feel well and requested time
off. Id. Mr. Bayse understood, but replied that it wasn’t a good time for her to
take time off. Id. Around that time, she also told Mr. Bayse that her parents
had moved into her home because of her stepfather’s health. Id. at 23 (Gibson
Dep. at 88).
The next month, Ms. Gibson again told Mr. Bayse that she needed time
off because she was depressed and stressed. Id. at 36–37 (Gibson Dep. at 101–
02). He replied that it wasn’t a good time, but she could have the time off in a
couple weeks. Id. at 38–39 (Gibson Dep. at 103–04). When she told him that
she couldn’t keep waiting, he offered time off four to six weeks after new
employees had been in their positions. Id.

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At the end of March 2016, Mr. Bayse told Ms. Gibson that Department of
Correction leadership had decided that she “wasn’t DOC enough.” Id. at 40–41
(Gibson Dep. at 105–06). She responded that she “wasn’t doing well” and not
long after asked him about the possibility of switching agencies. Id. at 43, 56
(Gibson Dep. at 108, 126).
During March and April 2016, Ms. Gibson met several times with Valerie
Caldwell, an African-American employee at the Indiana Women’s Prison. Id. at
94–95 (Gibson Dep. at 169–70); dkt. 100-3 at 2. At one of their last meetings,
Ms. Gibson asked Ms. Caldwell if she thought that people at the prison thought
that she carried herself “like the HNIC.” Id. at 96, 103 (Gibson Dep. at 171,
179). Ms. Caldwell asked what “HNIC” meant, and Ms. Gibson responded
“head nigger in charge.” Id. at 102–03 (Gibson Dep. at 178–79).
Then, on April 18, 2016, Ms. Gibson told Mr. Bayse that she would be
taking Family Medical Leave Act (“FMLA”) time off. Id. at 72 (Gibson Dep. at
147). Mr. Bayse sighed and asked when it was supposed to start, and Ms.
Gibson replied that it would start immediately. Id. While she was on leave, Mr.
Bayse learned that Ms. Gibson had used the term “HNIC” in a conversation
with Ms. Caldwell. Dkt. 100-3 at 2. He also heard from one of Ms. Gibson’s
employees that she was a difficult boss, came across as a bully, and had overly
harsh expectations. Id. When Ms. Gibson returned from FMLA leave on May
23, 2016, ISPD terminated her employment. Dkt. 100-1 at 81–82 (Gibson Dep.
at 156–57).

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Ms. Gibson brought this lawsuit raising claims under the FMLA, the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 1983, Title VII, and
Indiana Code Title 22. Dkt. 47. Defendants filed a motion for partial dismissal
of the second amended complaint, dkt. 53, which the Court granted in part and
denied in part, dismissing the Indiana Code Title 22 claims and some of the
other claims as to some defendants, dkt. 86. Defendants have moved for
summary judgment, dkt. 99, and Ms. Gibson has filed a cross-motion for
partial summary judgment, dkt. 110.
II.
Applicable Law
Summary judgment shall be granted “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.” Fed. R. Civ. P. 56(a). The moving party must
inform the court “of the basis for its motion” and specify evidence
demonstrating “the absence of a genuine issue of material fact.” Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party meets this
burden, the nonmoving party must “go beyond the pleadings” and identify
“specific facts showing that there is a genuine issue for trial.” Id. at 324.
In ruling on cross-motions for summary judgment, the Court takes the
motions “one at a time,” viewing and reciting the evidence and drawing all
reasonable inferences “in favor of the non-moving party.” Williams, 832 F.3d at
648. The party opposing summary judgment “must support her factual
assertions about disputed facts by using citations to point to specific particular

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parts of the record.” Khan v. Midwestern Univ., 879 F.3d 838, 846 (7th Cir.
2018); see Fed. R. Civ. P. 56(c)(1). “Conclusory allegations, unsupported by
specific facts, will not suffice.” Payne v. Pauley, 337 F.3d 767, 773 (7th Cir.
2003).
III.
Analysis
Ms. Gibson’s remaining claims are (1) FMLA interference and retaliation
claims; (2) ADA failure-to-accommodate and disparate-treatment claims; (3) 42
U.S.C. § 1983 claims for deprivation of property, liberty, and equal protection;
and (4) a Title VII sex-discrimination claim. See dkt. 47; dkt. 86.
A. FMLA
Defendants argue that they are entitled to summary judgment on Ms.
Gibson’s interference and retaliation claims. Dkt. 101 at 12–15. They also
argue that she cannot recovery monetary damages from the individual
defendants. Id. at 11–12.
1. FMLA Interference
“The FMLA makes it unlawful for an employer to interfere with an
employee’s attempts to exercise any FMLA rights.” Burnett v. LFW Inc., 472
F.3d 471, 477 (7th Cir. 2006) (citing 29 U.S.C. § 2615(a)(1)). To prevail on an
FMLA interference claim, the employee must show: “(1) she was eligible for the
FMLA’s protections, (2) her employer was covered by the FMLA, (3) she was
entitled to take leave under the FMLA, (4) she provided sufficient notice of her
intent to take leave, and (5) her employer denied her FMLA benefits to which

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she was entitled.” Goelzer v. Sheyboygan County, 604 F.3d 987, 993 (7th Cir.
2010).
Ms. Gibson brings her FMLA interference claim against Defendants ISPD
and Bayse. Dkt. 86 at 8. Those defendants argue that the evidence does not
support the “notice” element because Ms. Gibson merely requested vacation
time, which was not enough to alert them to her need for medical leave. Dkt.
101 at 13. Ms. Gibson responds that she was clear that the time off was
necessary and that Mr. Bayse knew that she qualified for FMLA leave. Dkt.
111 at 13–14.
An employee gives sufficient notice by providing “enough information to
tell the employer that the FMLA may apply.” Burnett, 472 F.3d at 478–79; 29
C.F.R. § 825.303(b). This requirement is “not onerous” and the employee “need
not expressly mention the FMLA.” Burnett, 472 F.3d at 478–79; 29 C.F.R. §
825.303(b). Instead, “firms should be able to figure out for themselves the legal
rules governing leave, once they know that a serious medical condition or
family situation is ongoing.” Collins v. NTN-Bower Corp., 272 F.3d 1006, 1008
(7th Cir. 2001); 29 C.F.R. § 825.301(b).
Defendants ISPD and Bayse do not argue that Ms. Gibson failed to
provide notice of a serious medical condition or family situation. See dkt. 101
at 13. Instead, they argue—with no supporting authority—that they are
entitled to summary judgment because Ms. Gibson asked for vacation time
instead of “actually requesting FMLA leave.” Id. But vacation time and FMLA
leave are not mutually exclusive, 29 C.F.R. § 825.301(b), and specifically
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requesting FMLA leave is not required, see Burnett, 472 F.3d at 478–79 (“The
employee’s notice obligation is satisfied so long as he provides information
sufficient to show that he likely has an FMLA-qualifying condition.”). A general
request for time off for FMLA-qualifying reasons is enough. See Nicholson v.
Pulte Homes Corp., 690 F.3d 819, 826 (7th Cir. 2012).
Summary judgment is therefore denied on this claim.
2. FMLA Retaliation
An FLMA retaliation claim has three elements: “(1) the employee engaged
in statutorily protected activity; (2) the employer took adverse action against
the employee; and (3) the protected activity caused the adverse action.”
Freelain v. Vill. of Oak Park, 888 F.3d 895, 901 (7th Cir. 2018). The defendants
for this claim—ISPD, Lemmon, Darrow, and Bayse, dkt. 86 at 13—argue that
they are entitled to summary judgment on Ms. Gibson’s FMLA retaliation claim
because no reasonable jury could find causation. Dkt. 101 at 13–15.
Specifically, they argue that the evidence shows that Ms. Gibson was fired for
poor performance and using a racial epithet. Id. at 15. Ms. Gibson responds
that Defendants’ reasons are pretextual. Dkt. 111 at 15–20.
Mr. Bayse testified that he terminated Ms. Gibson because of negative
feedback about her work performance and her use of the phrase “HNIC.” Dkt.
100-3 at 2. None of Ms. Gibson’s designated evidence disputes this testimony.
She cites Mr. Bayse’s calendar from March and April 2016, arguing that she
was not counseled as would be expected if her supervisors were unhappy with
her performance. Dkt. 111 at 17; dkt. 111-11. But a lack of calendar entries
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showing counseling is too speculative to show that Ms. Gibson was meeting
expectations at that time, because it does not point to her FMLA leave as the
reason for her termination. See Langenback v. Wal-Mart Stores, 761 F.3d 792,
800 (7th Cir. 2014) (“On summary judgment . . . circumstantial evidence must
point directly to the conclusion that an employer was illegally motivated,
without reliance on speculation.” (quotation omitted)). Similarly, even if Ms.
Gibson is correct that complaints about her performance were inaccurate, the
undisputed evidence shows that the complaints happened. Dkt. 100-3 at 2.
Employers may lawfully rely on work-performance complaints even if those
complaints may be inaccurate. See Cracco v. Vitran Exp., Inc., 559 F.3d 625,
634 (7th Cir. 2009).
As for the “HNIC” comment, Ms. Gibson argues that it wasn’t
substantiated because she wasn’t asked about it. Dkt. 111 at 18–19. But Ms.
Gibson does not dispute that she used the term or that Mr. Bayse was told
about it. Id. Mr. Bayse’s reliance on what he was told does not show
discrimination, even if he chose not to confirm it with Ms. Gibson. See Cracco,
559 F.3d at 634. Ms. Gibson also argues that a colleague accused of similar
behavior was treated less harshly, but she cites no evidence in support as
required. Dkt. 111 at 18–19; see McDaniel v. Progress Rail Locomotive, Inc.,
940 F.3d 360, 369 (7th Cir. 2019) (explaining that plaintiffs must offer evidence
of a similarly situated comparator to survive summary judgment).
The lack of designated evidence leaves the timing of Ms. Gibson’s
termination in relation to her medical concerns and FMLA leave as the only
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facts that could support her claim. See dkt. 111 at 20. Those facts are not
enough to show pretext. See Curtis v. Costco Wholesale Corp., 807 F.3d 215,
221 (7th Cir. 2015) (“[S]uspicious timing alone is rarely sufficient to overcome a
motion for summary judgment.”). Moreover, Mr. Bayse learned of Ms. Gibson’s
use of “HNIC” while she was on leave. Dkt. 100-3 at 2. When an employer
learns of misconduct while the employee is on leave, firing the newly returned
employee “cannot be sufficient evidence to establish causation.” Cracco, 559
F.3d at 634.
Finally, Ms. Gibson argues that she has more evidence and has provided
only a “very very small sample.” Dkt. 111 at 17. But Defendants’ motion for
summary judgment required Ms. Gibson to show her hand by designating
evidence. Sommerfield v. City of Chicago, 863 F.3d 645, 649 (7th Cir. 2017)
(explaining that “[s]ummary judgment is not a time to be coy” as the “parties
are required to put their evidentiary cards on the table”). Ms. Gibson has not
designated evidence creating a triable issue of fact, so Defendants are granted
summary judgment on this claim. See Curtis, 807 F.3d at 221 (explaining that
summary judgment is proper when the undisputed evidence is that the adverse
employment action was based on poor job performance or misconduct).
3. Monetary Damages Against Individual Defendants
Defendants argue that sovereign immunity prevents Ms. Gibson from
recovering monetary damages against individual defendants. Dkt. 101 at 11–
12. Ms. Gibson responds that the damages she seeks will not necessarily be
paid by the state, so sovereign immunity does not apply. Dkt. 118 at 11–14.
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The “general rule” is that sovereign immunity does not bar claims for
monetary damages against individual defendants, because the money would
come from the individual instead of from the state treasury. Luder v. Endicott,
253 F.3d 1020, 1022–23 (7th Cir. 2001). But claims against individuals are
barred when it’s “inescapable” that the “money will flow from the state
treasury.” Haynes v. Ind. Univ., 902 F.3d 724, 732 (7th Cir. 2018) (citing
Omosegbon v. Wells, 335 F.3d 668 (7th Cir. 2003)). In Haynes, for example,
the money inescapably would have come from the state treasury because the
claim was based on an employment contract and the individual defendants
were not parties to the contract in their individual capacities. Id.
The same is true here because of the types of damages available for
FMLA claims. While Ms. Gibson’s FMLA claims are not based on an
employment contract, the damages that are recoverable in an FLMA claim are
“wages, salary, employment benefits, or other compensation,” interest on those
amounts, liquidated damages, and fees and costs. See 29 U.S.C. § 2617(a). In
other words, damages recoverable under the FMLA are wages or are closely
related to wages. See Darst v. Interstate Brands Corp., 512 F.3d 903, 911 (7th
Cir. 2008). And the Seventh Circuit has explained that damages like these
inescapably flow from the state treasury. See Luder, 253 F.3d at 1024. Other
types of damages that might lead to a different result—such as damages for
embarrassment, emotional distress, and humiliation—are not recoverable
under the FMLA. See Arrigo v. Link, 836 F.3d 787, 798 (7th Cir. 2016) (“FMLA
damages don’t include emotional distress and punitive damages . . . .”); Heinze
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v. S. Ill. Healthcare, No. 08-672-GPM, 2010 WL 276722 at *2 (S.D. Ill. Jan. 19,
2010); see also Reinebold v. Ind. Univ. S. Bend, No. 3:18-CV-525-JD, 2019 WL
1897288 at *2–3 (N.D. Ind. Apr. 25, 2019).
Ms. Gibson therefore may not recover monetary damages from the
individual defendants, and they are entitled to summary judgment on her
FMLA claims.
B. ADA and Rehabilitation Act.
Claims under the ADA and Rehabilitation Act are “materially identical,”
so the Court considers them together. A.H. v. Ill. High Sch. Assn., 881 F.3d
587, 592 (7th Cir. 2018). These acts support two types of claims: failure to
accommodate and disparate treatment. Scheidler v. Indiana, 914 F.3d 535,
541 (7th Cir. 2019).
1. Failure to Accommodate
A failure-to-accommodate claim requires proof that (1) the plaintiff was a
qualified individual with a disability, (2) the defendant was aware of the
disability, and (3) the defendant failed to provide reasonable accommodation.
Id. ISPD—the only defendant for this claim, dkt. 47 at 16–17; dkt. 86 at 16—
argues that Ms. Gibson cannot show that ISPD failed to reasonably
accommodate her. Dkt. 101 at 15–18. Ms. Gibson responds that she informed
ISPD about her mental health and need for medical care, and that she
requested time off. Dkt. 111 at 20–23.
Showing a failure to reasonably accommodate requires evidence not only
that the employee attempted to engage the employer on the issue, “but also
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that the [employer] was responsible for any breakdown that occurred in that
process.” Ekstrand v. Sch. Dist. of Somerset, 583 F.3d 972, 975–76 (7th Cir.
2009). Ms. Gibson alleges that ISPD failed to accommodate her disability when
it was unwilling to explore or consider an accommodation. Dkt. 101 at 21–23.
The designated evidence shows only that when Ms. Gibson told Mr. Bayse that
she needed time off because of everything that was going on, he responded that
it wasn’t a good time, but maybe time off would be possible in four to six
weeks. Dkt. 100-1 at 38–39 (Gibson Dep. at 103–04).
That is not enough evidence to create a triable issue of fact on whether
ISPD failed to provide reasonable accommodation. In this type of claim, the
Court must “isolate the cause of the breakdown [in the accommodation-seeking
process] and then assign responsibility.” Ekstrand, 583 F.3d at 976. Here, Ms.
Gibson told Mr. Bayse that she “really, really need[ed] the time off,” and he
responded that time off may be possible in four to six weeks. Dkt. 100-1 at 38–
39 (Gibson Dep. at 103–04). Ms. Gibson has not designated evidence revealing
what, if anything, she said or other communicated to Mr. Bayse thereafter. So
there is no evidence that could support an inference that ISPD was responsible
for the breakdown in communication. See EEOC v. Sears, Roebuck & Co., 417
F.3d 789, 797 (7th Cir. 2005) (“[T]he employer will be liable only if it bears
responsibility for the breakdown . . . .”). 1 Nor does any designated evidence

This is what differentiates Ms. Gibson’s reasonable-accommodation claim from her
FMLA interference claim. As explained above, her FMLA interference claim requires
only that she put her employer on notice. Her reasonable-accommodation claim, by
contrast, requires ongoing engagement in the accommodation-seeking process.
1

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show that ISPD knew what accommodations Ms. Gibson’s disability might
require. See Stelter v. Wisc. Physicians Serv. Ins. Corp., 950 F.3d 488, 491 (7th
Cir. 2020) (affirming summary judgment because the plaintiff failed to show
that she had requested certain accommodations). There is therefore no triable
issue of fact on whether ISPD’s offer was unreasonable considering the limited
facts that Ms. Gibson had communicated. See Ekstrand, 583 F.3d at 976–77;
Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1136 (7th Cir. 1996)
(explaining that a party can be responsible for a breakdown for failing to
provide information that was only in that party’s possession).
ISPD’s motion for summary judgment is granted on this claim. 2
2. Disparate Treatment
A disparate-treatment claim requires proof that (1) the plaintiff was
disabled; (2) she was qualified to perform essential functions of her job with or
without reasonable accommodation, and (3) disability was the “but for” cause
of her adverse employment action. Scheidler, 914 F.3d at 541. Ms. Gibson
raises this claim against ISPD, dkt. 47 at 16–17; dkt. 86 at 16, which argues
that Ms. Gibson cannot establish the third element—causation, dkt. 101 at 19–
21. ISPD contends that Ms. Gibson was terminated not because of her
disability, but because of issues relating to work performance, including the

2 Because ISPD’s designated evidence shows that it is entitled to summary judgment
on this basis, the Court does not address ISPD’s arguments that Ms. Gibson failed to
designate evidence, did not provide notice of her disability, and did not request
accommodation.

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incident when she used the term “HNIC.” Id. Ms. Gibson responds that those
reasons are pretextual. Dkt. 111 at 23–27.
As with the FMLA claim, ISPD relies on Mr. Bayse’s declaration that he
terminated Ms. Gibson’s employment based on negative feedback about her
work performance and her use of the phrase “HNIC.” Dkt. 100-3 at 2. Again,
none of the evidence that Ms. Gibson cites creates a triable issue regarding the
reason ISPD chose to terminate her employment.
Ms. Gibson first cites a letter from Mr. Bayse notifying her that she is
being dismissed because she damaged ISPD’s “trust and confidence in [her]
ability to effectively perform [her] job.” Dkt. 111-17. Second, she cites a letter
from ISPD protesting an award of unemployment insurance that gives the same
reasons for her termination as Mr. Bayse does in his declaration. Dkt. 111-2.
Third, she cites a statement from Ms. Caldwell that explains that Ms. Caldwell
was offended by Ms. Gibson’s “HNIC” comment. Dkt. 111-18. Fourth, she
cites a statement from Mr. Bayse that explains that Ms. Gibson was no longer
trusted at least in part because of her “HNIC” comment. Dkt. 111-19. 3
Finally, she cites ISPD’s letter to the EEOC saying that Ms. Gibson was
terminated because of her “HNIC” comment. Dkt. 111-15.
None of this evidence is inconsistent with the declaration that ISPD relies
on, and Ms. Gibson does not explain how it shows disability discrimination.
See dkt. 111 at 25. She instead argues that it shows variances in Defendants’

The statements from Ms. Caldwell and Mr. Bayse give no indication that they were
made under oath. Dkt. 111-18; 111-19.
3

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explanations for her firing. Dkt. 111 at 25. But contrary to Ms. Gibson’s
argument, the evidence connects the dots. See, e.g., dkt. 111-15 (explaining
that the stated loss of trust was because of Ms. Gibson’s “HNIC” comment).
Moreover, “minor misstatement[s]” or “disagreement among defense
witnesses”—which is the most that Ms. Gibson’s evidence shows—cannot
create a triable issue of fact on pretext. Monroe v. Ind. Dept. of Transp., 871
F.3d 495, 507 (7th Cir. 2017). That’s especially true here, because the cited
evidence does not point to a disability as the cause of Ms. Gibson’s
termination. See Stelter, 950 F.3d at 490 (explaining that the ADA does not
shelter disabled employees from adverse employment actions taken for reasons
other than disability). Evidence of pretext is required, but Ms. Gibson has
designated none. See id. (“To establish pretext, [the plaintiff] needed to show
through inconsistencies or contradictions . . . that the reason for the
termination was not the reason proffered, but instead discriminatory.”);
Monroe, 871 F.3d at 503–04.
Defendants’ motion for summary judgment is therefore granted on this
claim.
C. 42 U.S.C. § 1983
1. Deprivation of Property
Ms. Gibson alleges that she was deprived of her property interest in her
job without due process. Dkt. 111 at 6. This claim requires (1) a
constitutionally protected property interest, (2) a loss of that interest
amounting to a deprivation, and (3) that the deprivation occurred without due
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process of law. Moss v. Martin, 473 F.3d 694, 700 (7th Cir. 2007). Ms. Gibson
brings this claim against Defendants Bayse, Brown, Baxter, Darrow, and ISPD.
Dkt. 47 at 17–24. They argue that Ms. Gibson had no property interest in her
position because she was an at-will employee. Dkt. 101 at 9–10. Ms. Gibson
contends that her February 2016 performance evaluation created an
employment contract, giving her a property interest in her employment. Dkt.
111 at 7.
Whether Ms. Gibson had a property interest in her employment is a
question of Indiana law. See Moulton v. Vigo County, 150 F.3d 801, 804 (7th
Cir. 1998). Under Indiana law, an at-will employee has no property interest in
ongoing employment. Id. (citing Phegley v. Ind. Dept. of Highways, 564 N.E.2d
291, 295 (Ind. App. 1990)). “The presumption of at-will employment is strong”
and the Indiana Supreme Court “has recognized only three exceptions” to the
at-will employment doctrine. Baker v. Tremco Inc., 917 N.E.2d 650, 653–54
(Ind. 2009). They are (1) if “adequate independent consideration” supports an
employment contract, (2) “if a clear statutory expression of a right or a duty is
contravened,” and (3) if promissory estoppel applies. Id.
Ms. Gibson relies on the first exception, arguing that a performance
evaluation created an employment contract. Dkt. 111 at 6–7; dkt. 118 at 8. In
the evaluation, Mr. Bayse said: “I look forward to seeing what [Ms. Gibson] can
accomplish in her second year.” 4 Dkt. 111-1 at 4. But the adequate

Ms. Gibson does not argue that the evaluation created a unilateral contract and it
does not contain the requisite “clear promise of secure employment.” Harris v. Brewer,
49 N.E.3d 632, 642 (Ind. Ct. App. 2015).
4

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independent consideration exception requires a “substantial detriment” that
was given “in exchange for a promise” of continued employment. Harris v.
Brewer, 49 N.E.3d 632, 643–44 (Ind. Ct. App. 2015). Ms. Gibson alleges that
she withdrew from another opportunity and spent more money than she
otherwise would have. Dkt. 118 at 8–9. But that is not enough to support
adequate independent consideration because Ms. Gibson has designated no
evidence showing that those detriments were offered “in exchange for a promise
of permanent employment.” Harris, 49 N.E.3d at 643–44 (explaining that
adequate independent consideration requires an “independent benefit bestowed
upon the employer”).
Defendants are therefore entitled to summary judgment on Ms. Gibson’s
deprivation of property without due process claim. 5
2. Deprivation of Liberty and Equal Protection
Ms. Gibson cross-moves for summary judgment on two other § 1983
claims—that her equal-protection rights were violated and that she was
deprived of her liberty. Dkt. 118 at 5. These claims are against Defendants
Darrow, Bayse, Baxter, and Brown, dkt. 47 at 17, who argue that these claims
were insufficiently pleaded in the complaint and that Ms. Gibson’s crossmotion for summary judgment should be denied because she has designated
no evidence in support, dkt. 114 at 4–5.

Because Ms. Gibson had no property interest in her employment, the Court does not
address Defendants’ argument that it provided due process.
5

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The deprivation-of-liberty claim relies on an occupational-liberty interest.
See dkt. 118 at 6. “An occupational-liberty claim may arise when, after an
adverse employment action, a public employer stigmatizes the employee by
making public comments impugning his good name, honor, or reputation or
imposes a stigma that forecloses other employment opportunities.” Palka v.
Shelton, 623 F.3d 447, 454 (7th Cir. 2010). For the public-disclosure element
of the claim, Ms. Gibson pleaded only that several state employees told her, in
connection with her unemployment claim, that she had been racist toward a
subordinate. Dkt. 47 at 11–13.
However, the “public-disclosure requirement requires that the defendant
actually disseminate the stigmatizing comments in a way that would reach
potential future employers.” Palka, 623 F.3d at 454. Internal dissemination is
not enough, id. (citing Ratliff v. City of Milwaukee, 795 F.2d 612, 627 (7th Cir.
1986)), and Ms. Gibson has not pleaded or designated evidence showing more
than that. The Court therefore gives notice under Federal Rule of Civil
Procedure 56(f) of its intent to enter summary judgment for Defendants on this
claim.
For the equal-protection claim, Ms. Gibson alleges that she was treated
differently than a non-disabled coworker. See dkt. 47 at 21–22. This claim
requires Ms. Gibson to show discriminatory intent. See Harper v. Fulton
County, 748 F.3d 761, 765 (7th Cir. 2014). Ms. Gibson does not allege or
provide direct evidence of discriminatory intent, so the Court analyzes her
claim under the McDonnell Douglas burden-shifting approach. See id. at 767.
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That requires her to show that (1) she is disabled, (2) that she suffered an
adverse employment action, (3) she was meeting her employer’s legitimate
business expectations, and (4) a similarly situated non-disabled employee was
treated more favorably. Id.
But as explained above for Ms. Gibson’s ADA claim, Defendants have
designated evidence that Ms. Gibson’s employment was terminated because of
work performance and her use of “HNIC”—not because of a disability. Ms.
Gibson has designated no evidence in response, such as evidence of a similarly
situated non-disabled employee who was treated more favorably. See dkt. 118
at 7–8.
Ms. Gibson’s cross-motion for summary judgment on this claim is
therefore denied. Because Defendants have designated evidence of a nondiscriminatory reason for Ms. Gibson’s termination and she has not provided
evidence creating a triable issue of fact, the Court gives notice under Federal
Rule of Civil Procedure 56(f) of its intent to enter summary judgment for
Defendants on this claim.
Ms. Gibson shall have through May 22, 2020 to respond why summary
judgment should not be granted on her equal-protection and deprivation-ofliberty claims.
D. Title VII
Ms. Gibson’s Title VII claims against ISPD, dkt. 86 at 16, allege that she
was terminated on the basis of her sex and that she was subjected to a hostile
work environment, dkt. 47 at 24–25.
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1. Termination on the Basis of Sex
Title VII prohibits employers from terminating employees on the basis of
sex. See Ripberger v. Corizon, Inc., 773 F.3d 871, 877 (7th Cir. 2014) (citing 42
U.S.C. § 2000e-2(a)(1)). ISPD argues that it is entitled to summary judgment
because it terminated Ms. Gibson because of work performance and her use of
“HNIC.” Dkt. 101 at 22. Ms. Gibson responds that those reasons are
pretextual. Dkt. 111 at 28.
ISPD has designated Mr. Bayse’s declaration that Ms. Gibson’s
employment was terminated because of her work performance and her use of
the phrase “HNIC.” Dkt. 100-3 at 2. Therefore, to avoid summary judgment,
Ms. Gibson must present evidence allowing a rational jury to conclude that she
was terminated on the basis of her sex. Ripberger, 773 F.3d at 877. However,
she has designated none. See dkt. 111 at 27–30; dkt. 118 at 18–19. And
ISPD’s designated evidence that Mr. Bayse once called Ms. Gibson a “strong
woman,” dkt. 101 at 8 (citing dkt. 100-1 at 49 (Gibson Dep. at 114)), is not
enough to create a triable issue of fact. See Merillat v. Metal Spinners, Inc., 470
F.3d 685, 694 (7th Cir. 2006) (“[I]solated comments that are no more than
‘stray remarks’ in the workplace are insufficient to establish that a particular
decision was motivated by discriminatory animus.”).
ISPD is therefore entitled to summary judgment on this claim.
2. Hostile Work Environment
Sexual harassment that is severe or pervasive enough to affect the terms
and conditions of employment is actionable under Title VII.
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Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998); Swyear v. Fare Foods
Corp., 911 F.3d 874, 881 (7th Cir. 2018). Proving this claim requires a plaintiff
to show that “(1) the plaintiff’s workplace was both subjectively and objectively
offensive; (2) the plaintiff’s sex was the cause of the harassment; (3) the
harassment was severe or pervasive; and (4) there is a basis for employer
liability.” Milligan-Grimstad v. Stanley, 877 F.3d 705, 713 (7th Cir. 2017).
ISPD argues that the alleged actions and comments were not severe
enough for a reasonable person to find that her work environment was hostile.
Dkt. 101 at 24. Ms. Gibson responds that under the totality of the
circumstances, she has established a hostile work environment. Dkt. 111 at
32–33. In order to meet the severity element of a hostile-work-environment
claim, a workplace must be “so pervaded by discrimination that the terms and
conditions of employment were altered.” Vance v. Ball State Univ., 570 U.S.
421, 427 (2013). The behavior need not make the workplace “hellish.”
Jackson v. Cty. of Racine, 474 F.3d 493, 500 (7th Cir. 2007). But it must be
more than offhand comments and isolated incidents. Faragher v. City of Boca
Raton, 524 U.S. 775, 788 (1998).
The evidence designated by Ms. Gibson in support of this claim is that
Mr. Bayse called Ms. Gibson a “strong woman,” called a male employee a
woman and said he acts like a woman, and called another female employee a
“bitch”; and that Mr. Darrow hugged Ms. Gibson three times. Dkt. 100-1 at

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49, 110 (Gibson Dep. at 114, 206). 6 That is not enough to create a triable
issue of fact in a hostile-work-environment claim. As the Seventh Circuit has
explained, conduct must be “severe or pervasive” to create a hostile work
environment. Passananti v. Cook County, 689 F.3d 655, 667 (7th Cir. 2012).
The comments and hugs here do not rise to that level. Physical contact such
as a “hand on the shoulder, a brief hug, or a peck on the cheek” are “unlikely
to create a hostile environment in the absence of aggravating circumstances
such as continued contact after an objection.” Patton v. Keystone RV Co., 455
F.3d 812, 816 (7th Cir. 2006). The designated evidence here does not show
aggravating circumstances. And Mr. Bayse’s comment that Ms. Gibson was a
“strong woman” does not rise even to the level of “occasional vulgar banter,”
which is not enough to create a hostile work environment. Id. Finally, another
employee being called a “bitch” is offensive and unacceptable. However, a
single comment directed at another employee also cannot create a hostile work
environment. See Mercer v. Cook County, 527 Fed. App’x 515, 521 (7th Cir.
2013); Overly v. KeyBank Nat. Assn., 662 F.3d 856, 863 (7th Cir. 2011); cf.
Passananti, 689 F.3d at 669 (plaintiff being called a “bitch” to her face “nearly
constantly for several years” along with other harassing comments could create
a hostile work environment).
ISPD is thus entitled to summary judgment on this claim.

Ms. Gibson makes additional allegations in her reply brief, but they are unsupported
by designated evidence. Dkt. 118 at 19–20.
6

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*

*

*

Ms. Gibson also suggests in her briefs that her actions did not warrant
her termination. See, e.g., dkt. 111 at 2, 24–25. But it is not the Court’s role
to assess the wisdom or fairness of ISPD’s personnel decisions. Ballance v. City
of Springfield, 424 F.3d 614, 621 (7th Cir. 2005) (explaining that the court does
not “sit as a super-personnel department”). Unless there is a triable issue of
fact about whether Ms. Gibson was terminated for impermissible reasons,
Defendants are entitled to summary judgment. See id. Here, as explained
above, no reasonable jury could conclude from the designated evidence that
Ms. Gibson was terminated for impermissible reasons, and the Court’s inquiry
ends there.
IV.
Conclusion
Defendants’ motion for summary judgment is GRANTED in part and
DENIED in part. Dkt. [99]. Ms. Gibson’s cross-motion for partial summary
judgment is DENIED. Dkt. [110]. The only remaining claims are (1) an FMLA
interference claim against ISPD, and (2) deprivation-of-liberty and equalprotection claims via section 1983 against Defendants Darrow, Bayse, Baxter,
and Brown. Ms. Gibson SHALL HAVE through May 22, 2020 to respond why
the Court should not enter summary judgment for Defendants on her
deprivation-of-liberty and equal-protection claims. See Fed. R. Civ. P. 56(f).
Defendant Lemmon is DISMISSED; the clerk shall update the docket
accordingly.

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SO ORDERED.
Date: 4/21/2020

Distribution:
JESSICA A. GIBSON
3442 Hillside Ave
Gulf Breeze, FL 32563
David C. Dickmeyer
INDIANA ATTORNEY GENERAL
[e-mail]

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