STEVENS v. TOWN OF WEST TERRE HAUTE, INDIANA
ORDER ON DEFENDANT TOWN OF WEST TERRE HAUTE'S MOTION FOR SUMMARY JUDGMENT: For the foregoing reasons, the Court DENIES 35 Defendant Town of West Terre Haute's Motion for Summary Judgment (SEE ORDER). Signed by Judge Larry J. McKinney on 1/19/2017. (DW)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
TOWN OF WEST TERRE HAUTE,
ORDER ON DEFENDANT TOWN OF WEST TERRE HAUTE’S
MOTION FOR SUMMARY JUDGMENT
This matter comes before the Court on Defendant Town of West Terre Haute’s
(“West Terre Haute”) Motion for Summary Judgment on the claims brought against it by
Plaintiff Jonathan Stevens. Dkt. 35. Stevens alleges that West Terre Haute discriminated
against him when it chose not to hire him because of his race in violation of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e, et seq.
For the reasons set forth below, the Court DENIES Defendant West Terre Haute’s
Motion for Summary Judgment.
A. JONATAHAN STEVENS
Jonathan Stevens was employed as an unpaid reserve police officer for the West
Terre Haute Police Department (“Department”) between September 2013 and March
2014. Complaint, Dkt. 1, ¶ 4. During that time, Stevens twice applied to be a full-time,
paid police officer, but was not chosen. Id. Stevens, the only African-American working
at the Department, alleges that this was due to his race. Id., ¶¶ 4-6. Ian Redman and
Ryan Martin, both Caucasians, received the full-time positions ahead of Stevens. Dkt.
37-1, Lark Dep 26:8-12; Dkt. 36-2, Melton Dep. 52:14-18. Stevens was eventually hired
as a paid merit officer based on a recommendation by Chief Scott Melton and unanimous
approval from the West Terre Haute Town Council (the “Council”). Dkt. 36-4, McClain
B. LARK TESTIMONY
Donald Lark was the Chief of Police for West Terre Haute from September 2010
through November 2013. Lark Dep. 5:18-6:2. Lark testified that the police chief used to
have the final say in the hiring of police officers. Id. at 15:4-12. Lark stated that this all
changed following the hiring of African-American reserve officer Herman Moothery. Id.
at 14:5-15:18. Scott McClain, who served on the Council, approached Lark about the
hiring of Moothery and stated that he received numerous phone calls from people in town
with concerns about having a “n****r” on the police force. Id. at 15:14-16:6. McClain
asked Lark, “When did we hire a n****r[?]” Id. at 16:11-14. Lark, who had developed a
friendship with McClain, indicated that McClain was racist and disliked African-Americans.
Id. at 16:16-22; 18:11-13; 19:19-21; 20:2-7. Following Lark’s appointment as chief,
Moothery was terminated for medical reasons. Id. at 21:9-19.
After the hiring of Stevens’ reserve class, McClain expressed concern that he was
not notified of the class’s hiring. Id. at 22:6-12. Subsequently, the Council would not
allow the Department to hire any reserve officers until the Council met each individual in
person. Id. at 22:13-23:7.
During Lark’s tenure, he only hired one merit officer, Ian Redman. Id. at 26:8-15.
Lark’s hiring decision came down to Stevens or Redman. Id. at 30:6-14. Lark believed
that Stevens’ experience as a paramedic made him a better candidate than Redman. Id.
at 39:22-40:5. Lark had a discussion over the potential applicants with Assistant Chief
Scott Melton and Council members McClain and Sheila Boatman. Id. at 30:22-32:18.
McClain told Lark, “Before we go any further, I want to tell you right now, don’t even think
about hiring Jonathan Stevens. We will not consider it.” Id. at 31:6-10. When Lark asked
why they could not hire Stevens, Boatman stated that “[h]is kind does not belong in this
town.” Id. at 31:17-18. McClain then stated that “[Stevens] does not belong here.” Id. at
31:20. McClain refused to discuss hiring Stevens and inquired as to other candidates, at
which point Lark indicated his second choice would be Ian Redmond. Id. at 32:3-11.
McClain decided that they needed to reopen the application process, which they did. Id.
A couple weeks later, Lark and Melton called McClain and Boatman to discuss the
hiring process. Id. at 33:1-9. Lark did not believe that any of the new applicants were as
qualified as those already submitted. Id. at 33:10-14. At this point, McClain stated that
they would simply not hire anyone. Id. at 33:15-19. Boatman indicated that she had a
candidate in mind, and Melton told her that she should have the individual put in an
application. Id. at 33:21-25.
Lark stated that McClain and Boatman thought the line had disconnected, but he
and Melton stayed on the phone and heard a private conversation between McClain and
Boatman. Id. at 34:2-12. At that point, Boatman stated, “No f*****g way in hell are we
hiring Jonathan Stevens.” Id. at 34:13-14. McClain responded, “No way, not going to
happen.” Id. at 34:14-15.
Sometime after the phone conversation, West Terre Haute experienced a flood.
Id. at 37:12-18. Lark called McClain and told him that they were “running crazy trying to
help people around here.” Id. at 38:9. McClain responded, “Go ahead and get ahold of
Ian Redman. Get him on the books … Tell him to come in and fill out the paperwork so
we can get somebody on the shift and move past this whole thing.” Id. at 38:11-15. Lark
asked if McClain was telling him that he had to hire Ian Redman for the position and
McClain responded, “Yes, hire Ian Redman.” Id. at 38:19-21. When Lark asked if he had
any other choice, McClain replied, “Not if you want to fill that position.” Id. at 38:22-23.
Immediately after that conversation took place, Lark called Redman to offer him the
position; Redman accepted. Id. at 38:25-39:8.
On September 5, 2013, Lark submitted a memorandum on Redman’s behalf,
which stated that “Assistant Chief Melton and I are in agreement that the person who
would make the best hire is Reserve Officer Ian Redman. Officer Redman has been with
the Town of West Terre Haute Police Department for over two years and has a stellar
record and unquestioned work ethic.” Dkt. 36-1. It went on to state that Redman “has
shown a consistent willingness to go above and beyond the course of normal duty by
constantly donating numerous hours of his time to serve the citizens of this town … and
has always conducted himself in a professional manner which is beyond reproach.” Id.
The memorandum concluded that “Officer Redman would be an asset to the Town of
West Terre Haute if hired full-time.” Id.
Lark also testified that at a meeting between the Department and the Council,
Stevens inquired into the status of an investigation of a water works employee that
allegedly made racist remarks. Lark Dep. 49:1-16. McClain stated that he did not know
what Stevens was referring to. Id. at 49:17-19. After Stevens persisted, McClain “stood
up and stuck his finger right in Jonathan’s face. He called him a boy and told him he was
lucky he still has a job so he better sit down and shut the f**k up.” Id. at 50:8-8.
C. BOATMAN, MCCLAIN, AND MELTON TESTIMONY
West Terre Haute disputes the factual scenario described in Lark’s deposition.
The Defendant cites to the deposition testimony of Boatman, McClain, and Melton to paint
a different picture.
1. Scott Melton Testimony
Melton was a lieutenant with the Department when Stevens became a reserve
officer; Melton became Assistant Chief in late 2011 or early 2012. Melton Dep. at 15:1922; 17:13-18. Melton denied that Lark informed him that he wanted to hire Stevens
instead of Redman. Id. at 49:21-24. Melton did note, however, that “[Lark] did report to
me, I think this was after the fact, but he did say that he heard Sheila say, Sheila Boatman,
that [Stevens’] kind would not be hired. I do recall Don Lark telling me about that at some
point. I’m not sure when that was.” Id. at 50:9-14. Melton stated Redman was the best
fit for the job, but could not recall whether Lark shared that same opinion. Id. at 40:2241:6. Melton testified as to an August 27, 2013, email he received from Lark regarding
the filling of the new position, which stated “I think you and I are on the same page with
hiring someone from the reserve pool. … I am not clear if you and I are on the same page
with WHO we should hire from the reserve pool.” Id. at 44:12-20; Id. Ex. 6. Melton was
unsure as to whom Lark was referring to in the email. Id. at 44:21-45:5.
By the time Stevens filled out his second application for employment, Melton had
been elevated to Chief of the Department and modified the standards by which full-time
officers were hired. Id. at 50:21-51:5; see Dkt. 36-3. There were four total applicants that
applied for a part-time paid patrolman position, including Stevens. Dkt. 36-3. Ryan Martin
scored the highest amongst the applicants and was recommended for the position by
Melton. Dkt. 36-3.
Following Melton’s hiring of Martin, Stevens was hired for a part-time position.
Melton Dep. 55:13-17; 80:18-20.
During the application process, Stevens tied with
another applicant for the top score but was recommended for the position due to his
seniority. Id. at 56:7-21. He was unanimously approved by the Council, which included
McClain, Boatman, and Nate Bartlett. Id. at 87:16-23; McClain Dep. 48:9-13. After
Stevens was hired as a part-time officer, then clerk-treasurer Jim Mann approached
Melton and told him that he did not feel that it was fair that Stevens was working the same
number of hours as a full-time officer. Id. at 81:13-82:16. Mann re-appropriated money
from West Terre Haute’s Economic Development Incentive Tax fund to its general fund
to pay for Stevens to be a full-time officer with the Department. Id. at 82:19-83:4.
2. Scott McClain Testimony
Scott McClain was the Council president for West Terre Haute from approximately
2008 to 2015. McClain Dep. 7:1-14. He stated that the Council did not micromanage the
Department and that the Department was ultimately controlled by the police chief; this
included management and selection of personnel. Id. at 11:3-10; 11:18-22; 12:3-6.
McClain testified that the Council always follows the recommendation submitted by the
police chief in hiring police personnel. Id. at 15:10-11. McClain further testified that Lark
never told him he wanted Stevens to receive the paid position. Id. at 17:16-23.
3. Sheila Boatman Testimony
Sheila Boatman was a member of the Council in August 2013. Dkt. 36-5, Boatman
Dep. 8:21-25. Boatman denied stating to anyone that she did not want Stevens’ “kind” to
work for the Department. Id. at 22:16-22. She also denied telling Lark that she did not
want to have Stevens become a full-time police officer for the Department. Id. at 23:1224. She further testified that McClain never stated in her presence that he did not want
Stevens to become a full-time police officer for the Department. Id. at 23:17-19. Boatman
claims that she and McClain never spoke about who would be the most appropriate
candidate to fill the vacancy in the Department when Stevens first applied. Id. at 24:1016. Boatman testified that she never had any conversations relating to the hiring for the
position until it was presented to her by Lark. Id. at 25:12-17. Boatman also stated that
she never dissuaded Lark from recommending that Stevens be hired. Id. at 38:13-15.
Like McClain, she indicated that the Council would always take the recommendation of
the police chief in hiring police officers. Id. at 27:23-28:8. When Melton did recommend
Stevens to be hired, none of the Council members expressed any hesitation in approving
him. Id. at 38:10-12.
SUMMARY JUDGMENT STANDARD
As stated by the Supreme Court, summary judgment is not a disfavored
procedural shortcut, but rather is an integral part of the federal rules as a whole, which
are designed to secure the just, speedy, and inexpensive determination of every action.
See Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). See also United Ass’n of Black
Landscapers v. City of Milwaukee, 916 F.2d 1261, 1267-68 (7th Cir. 1990). Motions for
summary judgment are governed by Federal Rule of Civil Procedure 56, which provides
in relevant part: “The Court shall grant summary judgment 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)
Once a party has made a properly-supported motion for summary judgment, the
opposing party may not simply rest upon the pleadings but must instead submit
evidentiary materials showing that a fact either is or cannot be genuinely disputed. Fed.
R. Civ. P. 56(c)(1). A genuine issue of material fact exists whenever “there is sufficient
evidence favoring the nonmoving party for a jury to return a verdict for that
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, (1986). The nonmoving party
bears the burden of demonstrating that such a genuine issue of material fact
exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87
(1986); Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 997 (7th Cir. 1996). It is not the duty
of the Court to scour the record in search of evidence to defeat a motion for summary
judgment; rather, the nonmoving party bears the responsibility of identifying applicable
evidence. See Bombard v. Ft. Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir.
In evaluating a motion for summary judgment, the Court should draw all
reasonable inferences from undisputed facts in favor of the nonmoving party and should
view the disputed evidence in the light most favorable to the nonmoving party. See Estate
of Cole v. Fromm, 94 F.3d 254, 257 (7th Cir. 1996). The mere existence of a factual
dispute, by itself, is not sufficient to bar summary judgment. Only factual disputes that
might affect the outcome of the suit in light of the substantive law will preclude summary
judgment. See Anderson, 477 U.S. at 248; JPM Inc. v. John Deere Indus. Equip. Co., 94
F.3d 270, 273 (7th Cir. 1996). Irrelevant or unnecessary facts do not deter summary
judgment, even when in dispute. See Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir.
1992). If the moving party does not have the ultimate burden of proof on a claim, it is
sufficient for the moving party to direct the Court to the lack of evidence as to an element
of that claim. See Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 & n. 3 (7th Cir. 1994).
“If the nonmoving party fails to establish the existence of an element essential to his case,
one on which he would bear the burden of proof at trial, summary judgment must be
granted to the moving party.” Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir.
Title VII makes it unlawful for an employer “to fail or refuse to hire … or otherwise
to discriminate against any individual … because of such individual’s race, color, religion,
sex or national origin.” 42 U.S.C. § 2000e-2(a)(1). “[T]he obligation imposed by Title VII
is to provide an equal opportunity for each applicant regardless of race.” Furnco Const.
Corp. v. Waters, 438 U.S. 567, 579 (1978). Stevens has alleged that West Terre Haute
chose not to hire him, on two separate occasions, because he is African-American. Dkt.
1, ¶ 4.
To establish a claim for employment discrimination, a plaintiff must set forth
evidence that would “permit a reasonable factfinder to conclude that the plaintiff’s race,
ethnicity, sex religion, or other proscribed factor caused the discharge or other adverse
employment action.” Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016).
“Evidence must be considered as a whole, rather than asking whether any particular piece
of evidence proves the case itself.” Id.
If Lark’s testimony is believed, as is appropriate for a summary judgment motion,
there is ample evidence to conclude that Boatman and McClain refused to hire Stevens
because he was African-American. According to Lark, McClain did not like African-
Americans and asked when West Terre Haute “hire[d] a n****r?” Lark Dep. 16:11-14.
McClain was upset that he was not notified of the hiring of Stevens’ reserve class and
thereafter became more involved in the hiring of police officers. Id. at 22:6-23:7. More
tellingly, Lark insists that his selection was Stevens, but that Boatman and McClain would
not allow it. Id. at 39:22-40:5. Boatman even stated that “[h]is kind” – apparently referring
to Stevens – do not belong in West Terre Haute. Id. at 31:17-18. Boatman reiterated “No
f*****g” way in hell are we hiring Jonathan Stevens. Id. at 34:13-14. In the end, McClain
told Lark to hire Redman. Id. at 36:22.
Assuming these facts as true, a reasonable factfinder could conclude that Stevens
was not hired on the basis of his race. See Vergara v. Yonkers Pub. Sch., 386 F. Supp.
2d 377, 383 (S.D.N.Y. 2005) (“Although the statement ‘her kind’ could have several
connotations, the Court finds that it is a reasonable inference that the statement could
refer to her racial, … identity.”).
Given McClain’s dislike of African-Americans and
previous use of racial slurs, coupled with McClain and Boatman’s alleged comments
regarding Stevens’ potential employment, Lark’s testimony sets forth sufficient evidence
to demonstrate that Stevens could have been passed over on account of his race. And,
although isolated comments have been found to be insufficient to prove discriminatory
intent, see Merillat v. Metal Spinners, Inc., 470 F.3d 685, 694 (7th Cir. 2006), “a particular
remark can provide an inference of discrimination when the remark was (1) made by the
decision maker, (2) around the time of the decision, and (3) in reference to the adverse
employment action.” Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 491 (7th Cir.
The remarks about Stevens’ employment to which Lark testified sufficiently
establish each of these elements to support an inference of discrimination.
West Terre Haute solely relies on the burden-shifting method set forth by the
Supreme Court in McDonnell Douglas Corp. v. Green. 411 U.S. 792, (1973). This
evidentiary method was developed because “‘smoking gun’ evidence of discriminatory
intent is hard to come by.” Coleman v. Donahoe, 667 F.3d 835, 845 (7th Cir. 2012). In
this case, however, Lark’s testimony is the equivalent of a smoking gun. Lark indicated
that West Terre Haute refused to hire Stevens on account of his race, which creates a
triable issue for the jury. Accordingly, the Court need not address West Terre Haute’s
West Terre Haute asserts two more defenses, neither of which provides it relief. It
first claims that “[i]f the council members wanted to discriminate against [Stevens] based
on his race, they did not have to hire him at all – yet, they did hire him.” Dkt. 36 at 14.
Defendant cites to E.E.OC. v. Our Lady of Resurrection Med. Ctr., which stated that the
“same hirer/firer inference has strong presumptive value.” 77 F.3d 145, 152 (7th Cir.
1996). But Stevens is not claiming that he was wrongfully terminated, his claims are that
on two separate occasions he was looked over for a position that he was qualified for
because of his race. Dkt. 1, ¶ 4. These claims, if true, resulted in Stevens working as a
non-paid reserve officer for a longer duration than would have been necessary if he was
not African-American. The fact that West Terre Haute eventually hired him is an inquiry
for damages, not liability.
West Terre Haute’s final argument is that Stevens has failed to challenge McClain,
Boatman, and Melton’s testimony, which in turn must be deemed credible and summary
judgment rendered in its favor. Dkt. 38 at 6. West Terre Haute argues that the Court
must assume that a witness is credible, and that credibility questions may preclude
summary judgment only when the non-movant challenges the movant’s witnesses’
credibility. Id. (citing Captain v. ARS Nat. Servs., 636 F. Supp. 2d 791, 795 (S.D. Ind.
This assertion is confusing at best and belies Lark’s testimony, which offers a
markedly different account of what occurred during the hiring process from the one
proffered by McClain, Boatman, and Melton. Even if their testimony was credible, it
conflicts with Lark’s, which creates a material issue of fact for the jury to decide.
For the foregoing reasons, the Court DENIES Defendant Town of West Terre
Haute’s Motion for Summary Judgment.
IT IS SO ORDERED THIS 19th day of January, 2017.
LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana
Eric A. Frey
FREY LAW FIRM
Daniel Mark Witte
TRAVELERS STAFF COUNSEL OFFICE
Julie Joy Havenith
TRAVELERS STAFF COUNSEL OFFICE
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