UPCHURCH v. STATE OF INDIANA et al

Filing 44

ORDER granting 18 Motion for Partial Judgment on the Pleadings - Defendants' Motion for Judgment on the Pleadings 18 is GRANTED, with prejudice as to Plaintiff's Title VII claims and without prejudice as to lack of jurisdiction as to all other claims. Plaintiff's Title VII claims against the Indiana Department of Correction will proceed in the normal course. SEE ORDER. Signed by Judge Sarah Evans Barker on 8/30/2024. (JRB)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
TIMOTHY UPCHURCH,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
STATE OF INDIANA, et al.,
Defendants.

No. 1:23-cv-01310-SEB-KMB

ORDER GRANTING DEFENDANTS' MOTION FOR PARTIAL JUDGMENT ON
THE PLEADINGS
This cause is before the Court on Defendants' Motion for Partial Judgment on the
Pleadings [Dkt. 18]. Plaintiff Timothy Upchurch brings his most recent lawsuit alleging
that he was subjected to unlawful discrimination and retaliation by Defendants State of
Indiana, Indiana Department of Correction, Indiana State Personnel Department, Wendy
Knight, and Andrew Cole, in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 1981, and 42 U.S.C. § 1983. Defendants seek judgment on the pleadings as to
all claims and defendants other than the Title VII discrimination and retaliation claims
alleged against Defendant Indiana Department of Correction. For the reasons detailed
below, we GRANT Defendants' motion.
Factual Background
For approximately thirty years, Mr. Upchurch has worked in various positions
within the Indiana Correctional Industrial Facility (CIF), which is operated by the Indiana
Department of Correction, an agency of the State of Indiana. This is the second of two
1

employment discrimination cases filed by Mr. Upchurch in our Court. The first case,
Upchurch v. Indiana Department of Correction, No. 1:19-cv-4644-SEB-MG, dealt with
Mr. Upchurch's allegations of discriminatory and retaliatory employment actions
occurring prior to January 28, 2022; this second case involves allegations arising after
that date. On February 7, 2024, the Court granted summary judgment in favor of the
Indiana Department of Correction 1 in Mr. Upchurch's first employment discrimination
and retaliation case. That decision is currently on appeal before the Seventh Circuit
Court of Appeals.
In the instant case, Mr. Upchurch names as Defendants the State of Indiana; two
state departments—the Indiana Department of Correction and the Indiana State Personnel
Department; Wendy Knight, the former warden of CIF; and Andrew Cole, the former
deputy warden of CIF, who is now employed at a different facility, in their individual and
official capacities. Mr. Upchurch's complaint contains the following allegations
regarding the identity of his employer(s):
The complaint names as Defendants, the State of Indiana, whom Plaintiff
has been told by the State of Indiana is his employer, the Indiana
Department of Correction, whom the State of Indiana now claims is his
employer, and the Indiana State Personnel Department, which acts as part
of the employer by providing to the State of Indiana and the Indiana
Department of Correction employees who are imbedded in the State of
Indiana and the Indiana Department of Correction to make employment
policies and practices, conduct trainings, investigations, and
recommendations for adverse actions against the employees, maintain

1

Mr. Upchurch originally named the State of Indiana as the sole defendant in 1:19-cv-4644SEB-MG. However, after finding that the Indiana Department of Correction, rather than the
State, was Mr. Upchurch's employer for Title VII purposes, the Court substituted the Department
of Correction as the named defendant.
2

personnel records for the employees, and provide employment information
about employees to other organizations.
Compl. ¶ 152. The complaint further alleges that "[t]he Defendants work together as an
employer, joint employer, or other arrangements to cause adverse employment actions
against the employees." Id. ¶ 153.
Much of Mr. Upchurch's complaint is virtually identical to the complaint filed in
his prior employment discrimination lawsuit, including the factual allegations regarding
the allegedly adverse actions taken by Defendants prior to January 28, 2022, all of which
were addressed in our ruling in his first case. The allegations set forth in Mr. Upchurch's
new complaint include that, on August 14, 2022, he complained to CIF's Diversity and
Inclusion Specialist of discrimination and retaliation, after which Defendants issued an
unjustified written reprimand against him on September 28, 2022, and that, between
February 11, 2022 and June 12, 2023, he applied for nearly thirty positions within both
the Department of Correction and other State agencies, but Defendants failed to promote
or hire him to any of those jobs. Based on these facts, Mr. Upchurch (again) alleges race
discrimination and retaliation claims under Title VII, § 1981, and § 1983 against all
Defendants.
Now before the Court is Defendants' Motion for Judgment on the Pleadings as to
all claims alleged against them, other than the Title VII race discrimination and retaliation
claims alleged against the Indiana Department of Correction. That motion is fully briefed
and ripe for ruling.

3

Legal Analysis
I.

Applicable Legal Standard
Federal Rule of Civil Procedure 12(c) permits a party to move for judgment after

the complaint and answer have been filed. Fed. R. Civ. P. 12(c). A motion for judgment
on the pleadings is governed by the same standard as a motion to dismiss for failure to
state a claim under Rule 12(b)(6). Adams v. City of Indianapolis, 742 F.3d 720, 727–28
(7th Cir. 2014). When resolving a motion for judgment on the pleadings, the Court must
"view the facts in the complaint in the light most favorable to the nonmoving party and
will grant the motion only if it appears beyond doubt that the plaintiff cannot prove any
facts that would support his claim for relief." Buchanan-Moore v. Cnty. of Milwaukee,
570 F.3d 824, 827 (7th Cir. 2009) (quotation marks and citation omitted).

"Judgment on

the pleadings is appropriate where there are no disputed issues of material fact and it is
clear that the moving party" is "entitled to judgment as a matter of law." Unite Here
Local 1 v. Hyatt Corp., 862 F.3d 588, 595 (7th Cir. 2017).
In addition, "we draw all reasonable inferences and facts in favor of the nonmovant, but need not accept as true any legal assertions" (Bishop v. Air Line Pilots Ass'n,
Int'l, 900 F.3d 388, 397 (7th Cir. 2018)), considering only the pleadings, which "include
the complaint, the answer, and any written instruments attached as exhibits." N. Ind. Gun
& Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449, 452 (7th Cir. 1998). The
Court is also permitted to consider "information that is subject to proper judicial notice,"
along with additional facts set forth in the plaintiff's brief opposing dismissal, so long as

4

those facts "are consistent with the pleadings." Geinosky v. City of Chicago, 675 F.3d
743, 745 n.1 (7th Cir. 2012).
II.

Discussion
Mr. Upchurch alleges that Defendants intentionally discriminated and retaliated

against him, in violation of Title VII, § 1981, and § 1983. Although his complaint does
not specify which claims are alleged against which Defendants, in his response brief in
opposition to the motion for judgment on the pleadings, Mr. Upchurch has clarified that
does not intend to assert § 1981 and § 1983 claims against the State of Indiana, the
Department of Correction, or the State Personnel Department, nor does he allege official
capacity claims for monetary damages under § 1983 against Defendants Knight and Cole.
Accordingly, such claims—to the extent they were included in the complaint—are hereby
dismissed.
The remaining claims by Mr. Upchurch under review here based on Defendants'
motion for judgment on the pleadings are as follows: (1) § 1983 claims for monetary
damages against Defendants Knight and Cole in their individual capacities; (2) § 1983
claims for injunctive relief against Defendants Knight and Cole in their official
capacities; (3) § 1981 claims against Defendants Knight and Cole in their official and
individual capacities; and (4) Title VII claims against the State of Indiana, the State
Personnel Department, and Defendants Knight and Cole. We address these claims in turn
below.

5

A. §§ 1981 and 1983 Claims
Mr. Upchurch has sued Defendants Knight and Cole in their official and individual
capacities for race discrimination and retaliation under § 1981 and § 1983. Seventh
Circuit law is clear that § 1983 is "the exclusive remedy for violations of § 1981
committed by state actors." 2 Campbell v. Forest Pres. Dist., 752 F.3d 665, 671 (7th Cir.
2014). Because there are no facts alleged in the complaint that support a plausible
inference that Ms. Knight and Mr. Cole were at any point acting outside the scope of their
authority as employees of the Indiana Department of Correction when they engaged in
the actions challenged by Mr. Upchurch, they are unquestionably state actors and we
therefore construe Mr. Upchurch's § 1981 official capacity and individual capacity claims
against them as arising under § 1983. See Jett v. Dallas Independent Sch. Dist., 491 U.S.
701 (1989) (holding that claim under § 1981 could not proceed against school principal
sued in "his personal and official capacities"); Outley v. City of Chi., 407 F. Supp. 3d 752,
762–63 (N.D. Ill. 2019) (holding that the plaintiff could not state a § 1981 claim against
state employees, even by suing them in their individual capacities). Accordingly, any
standalone § 1981 claims alleged against Defendants Knight and Cole must be, and are,
dismissed.
We turn next to Mr. Upchurch's § 1983 claims against Defendants Knight and Cole
in their official capacities. Although the Eleventh Amendment immunizes state officials

2

Although not entirely clear from his complaint, Mr. Upchurch has clarified in his briefing in
opposition to the instant motion that he is not pursuing a separate constitutional claim under
§ 1983; rather, he is seeking only to enforce his § 1981 rights through § 1983.
6

sued in their official capacities against damages suits, under the narrow exception of Ex
Parte Young, 209 U.S. 123 (1908), state officials may be sued in their official capacities
when "the complaint alleges an ongoing violation of federal law and seeks relief properly
characterized as prospective." Verizon Maryland, Inc. v. Pub. Serv. Comm'n of Maryland,
535 U.S. 635, 645 (2002). "[A] suit for prospective injunctive relief is not deemed a suit
against the state and thus is not barred by the Eleventh Amendment." Kashani v. Purdue
Univ., 813 F.2d 843, 848 (7th Cir. 1987).
Mr. Upchurch contends that his claims against Defendants Knight and Cole in
their official capacities come within the Ex Parte Young exception because he seeks relief
for ongoing discrimination and retaliation in the form of injunctive relief, i.e.,
reinstatement and front pay. Mr. Upchurch is not eligible, however, to seek reinstatement
because he was never terminated, and, although he was demoted in 2019, that demotion
was the subject of his prior lawsuit, not this one. It is true that, "[w]hen reinstatement is
not possible, front pay is generally an appropriate alternative equitable remedy. For
purposes of the Eleventh Amendment, however, front pay is not analogous to the
prospective relief permitted under Ex Parte Young because 'it must be paid from public
funds in the state treasury.'" Campbell v. Ark. Dep't of Correction, 155 F.3d 950, 962 (8th
Cir. 1998) (citation omitted). Accordingly, Mr. Upchurch's request for "front pay" falls
outside the bounds of permissible relief allowed under Ex Parte Young and his official
capacity § 1983 claims against Defendants Knight and Cole are therefore barred by the
Eleventh Amendment. Even if those claims were not so barred, neither Ms. Knight nor
Mr. Cole could effectuate Mr. Upchurch's requested prospective relief because they no
7

longer work at CIF. For these reasons, the Court must dismiss Mr. Upchurch's official
capacity § 1983 claims against Defendants Knight and Cole.
Unlike official capacity § 1983 claims, the Eleventh Amendment typically does
not bar suits brought against state officials in their individual capacities "because the
plaintiff is seeking damages from individuals rather than from the state treasury." Luder
v. Endicott, 253 F.3d 1020, 1022–23 (7th Cir. 2001). If, however, the plaintiff's lawsuit
"demonstrably has the identical effect as a suit against the state," a plaintiff may not seek
monetary relief against state employees in their individual capacities. Haynes v. Ind.
Univ., 902 F.3d 724, 732 (7th Cir. 2018) (internal quotation marks omitted). This means
that Eleventh Amendment "sovereign immunity bars individual-capacity claims for
damages whenever the money will flow from the state treasury to the plaintiff." Id.
(internal quotation marks omitted).
Applying these legal principles, courts in our circuit have found in similar cases to
this, "[w]hen the plaintiff seeks damages against individual defendants arising from an
employment relationship, Eleventh Amendment immunity applies because any damages
would be paid by the state employer." Wade v. Ind. Univ. Sch. of Med., No. 1:16-cv02256-TWP-MJD, 2019 WL 3067519, at *8 (S.D. Ind. July 12, 2019) (citing Omosegbon
v. Wells, 335 F.3d 668, 673 (7th Cir. 2003) (holding that because the plaintiff sought
backpay and other forms of monetary compensation based on an employment contract, it
was "so inescapable that any resulting judgment will be paid by the state rather than the
individual defendants that this bears no resemblance to a bona fide individual capacity
suit"); Haynes, 902 F.3d at 732 ("University administrators were not parties to [plaintiff's]
8

employment contract in their individual capacities. We have no reason to believe that
they, rather than the University would foot the bill for a resulting judgment. Sovereign
immunity therefore defeats [plaintiff's] damages action against the University
administrators, both in their individual and official capacities.")). Based on this case law,
we find that Mr. Upchurch's § 1983 damages claims asserted against Defendants Knight
and Cole in their individual capacities are indistinguishable from a suit against the state
and therefore must be dismissed based on sovereign immunity.
B. Title VII Claims
Defendants have moved for judgment on the pleadings as to all Mr. Upchurch's
Title VII claims except those brought against the Indiana Department of Correction, on
grounds that there is no other named defendant who was Mr. Upchurch's employer for
Title VII purposes. Mr. Upchurch rejoins that, because he has alleged that he is jointly
employed by the Indiana Department of Correction, the State of Indiana, and the State
Personnel Department, Defendants' motion for judgment on the pleadings as to his Title
VII claims must be denied.
Initially, we note that, because of the structure of Mr. Upchurch's complaint, it is
almost impossible to discern which claims he is bringing against which defendants.
However, insofar as Mr. Upchurch is alleging Title VII claims against Defendants Knight
and Cole, any such claims can be disposed of swiftly. It is well-settled Seventh Circuit
law that only a plaintiff's employer, not an individual supervisor, can be held liable under
Title VII. Walker v. Mueller Indus., Inc., 408 F.3d 328, 330 (7th Cir. 2005). In light of
this firmly established case law, Mr. Upchurch cannot plausibly allege that either Ms.
9

Knight or Mr. Cole ever personally employed him as a correctional officer at the CIF.
Accordingly, to the extent that Mr. Upchurch is attempting to sue Defendants Knight and
Cole for alleged Title VII violations, any such claim necessarily fails.
The Seventh Circuit clarified in DaSilva v. Indiana, 30 F.4th 671 (7th Cir. 2022),
that in lawsuits brought against state entities under Title VII, such as this one, the term
"employer" is "understood to mean the particular agency or part of the state apparatus
that has actual hiring and firing responsibility," not necessarily the "State" itself. Id. at
674 (quotation marks and citation omitted). Thus, determining the identify of a plaintiff's
employer for purposes of Title VII usually involves a factual determination of which state
agency or department has hiring and firing power over the plaintiff, which analysis is
ordinarily beyond the scope of a motion for judgment on the pleadings. See Hearne v.
Bd. of Educ. of City of Chi., 185 F.3d 770, 777 (7th Cir. 1999). We addressed this
identical issue at summary judgment in Mr. Upchurch's first employment discrimination
suit, Case No. 1:19-cv-4644, holding that the State of Indiana had demonstrated with its
designated evidence that the Department of Correction, rather than the State as a whole,
possesses the power to hire or fire employees working in its correctional facilities and
thus was Mr. Upchurch's sole employer for Title VII purposes. We hereby judicially note
that fact of this judicial decision and that such a finding was made. See Guaranty Bank v.
Chubb Corp., 538 F.3d 587, 591 (7th Cir. 2008) ("[A] court is of course entitled to take
judicial notice of judicial proceedings ….").
Here, Mr. Upchurch has added a conclusory allegation to his complaint that
Defendants "work together as … [a] joint employer … to cause adverse employment
10

actions against the employees," but the only facts cited in support of that legal conclusion
are that he has at times been told that the State of Indiana is his employer and that the
State Personnel Department provides employees to the State and Department of
Correction who create employment policies, conduct trainings, investigations, make
recommendations regarding discipline, maintain personnel files, and provide employment
information about employees to other organizations. There is no allegation, however, that
either the State or the State Personnel Department is responsible for hiring and firing
decisions within Department of Correction facilities, which is the controlling factor in
determining his employer for Title VII purposes. The fact that Mr. Upchurch may have
been told in other contexts that he is a State employee is not relevant to a determination
of who his employer is under Title VII. Accordingly, while we accept as true the facts
alleged in the complaint and draw all inferences in favor of Mr. Upchurch, we find it
implausible that the State itself or the State Personnel Department, rather than the
Department of Correction, was Mr. Upchurch's employer with hiring and firing
responsibility. For these reasons, we hold that Mr. Upchurch has failed to plausibly
allege that either the State or the State Personnel Department is Mr. Upchurch's employer
for Title VII purposes. These entities are therefore entitled to judgment on the pleadings
in their favor as to the Title VII claims alleged against them.
III.

Conclusion

For the foregoing reasons, Defendants' Motion for Judgment on the Pleadings
[Dkt. 18] is GRANTED, with prejudice as to Plaintiff's Title VII claims and without

11

prejudice as to lack of jurisdiction as to all other claims. Plaintiff's Title VII claims
against the Indiana Department of Correction will proceed in the normal course.
IT IS SO ORDERED.

Date: __________________________
8/30/2024

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

Distribution:
Richard L. Darst
COHEN GARELICK & GLAZIER
[e-mail]
James Alex Emerson
COOTS HENKE & WHEELER, P.C.
[e-mail]

12