TIDD v. STATE OF INDIANA et al

Filing 28

ENTRY ON PLAINTIFF'S MOTIONS FOR LEAVE TO FILE AMENDED COMPLAINTS AND ON DEFENDANTS' MOTIONS TO DISMISS PLAINTIFF'S COMPLAINT - 26 Motion for Leave to File Second Amended Complaint and Demand for Jury Trial is GRANTED. 24 Motion for Leave to File Amended Complaint and Demand for Jury Trial is DENIED as moot. 16 Motion to Dismiss for Failure to State a Claim is DENIED, and 18 Motion to Dismiss for Failure to State a Claim is DENIED as moot. See Entry for details. Signed by Judge Richard L. Young on 7/14/2015. (LBT)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION

BRIAN TIDD,
Plaintiff,
vs.
STATE OF INDIANA,
JACKSON COUNTY, INDIANA,
THE JACKSON COUNTY PROBATION
DEPARTMENT,
THE 40TH JUDICIAL DISTRICT,
NORMAN PHILLIPS in his personal and
official capacity,
Defendants.

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4:15-cv-00007-RLY-DML

ENTRY ON PLAINTIFF’S MOTIONS FOR LEAVE
TO FILE AMENDED COMPLAINTS AND ON DEFENDANTS’
MOTIONS TO DISMISS PLAINTIFF’S COMPLAINT
Plaintiff, Brian Tidd, was formerly employed as a probation officer in Jackson
County, Indiana. Following his termination, Plaintiff filed suit against the State of
Indiana, Jackson County, the Jackson County Probation Department, the 40th Judicial
District, and Norman Phillips, in his personal and official capacity. On March 10, 2015,
Jackson County, the Jackson County Probation Department, and Norman Phillips
(collectively, the “County Defendants”) filed a Motion to Dismiss for Failure to State a
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Claim and for Final Judgment. On the same day, the State of Indiana and the 40th
Judicial District1 (“State Defendants”), filed a Motion to Dismiss Plaintiff’s Complaint.
Plaintiff thereafter filed a Motion for Leave to File Amended Complaint and Demand for
Jury Trial and, just days later, filed a Motion for Leave to File Second Amended
Complaint and Demand for Jury Trial. Both motions for leave are unopposed. The court,
being duly advised, DENIES as MOOT the Motion for Leave to File Amended
Complaint, and GRANTS the Motion for Leave to File Second Amended Complaint.
The Second Amended Complaint names the following persons as defendants: the
Honorable Bruce Markel, the Honorable Bruce McTavish, the Honorable Richard
Poynter, and Norman Phillips. The County Defendants are sued in both their individual
and official capacities under 42 U.S.C. § 1983 for terminating Plaintiff’s employment
because of his age, in violation of the Equal Protection Clause. Because the Second
Amended Complaint does not name the State of Indiana or the 40th Judicial Circuit as
parties, the State Defendants’ Motion to Dismiss is DENIED as MOOT.
I.

Background
Plaintiff began his employment as a probation officer in Jackson County in

February 1996. (Second Am. Compl. ¶ 13). At all relevant times, Phillips was the Chief
Probation Officer of the 40th Judicial Circuit. (Id. ¶ 16). Plaintiff alleges “Defendants
Markel, McTavish, and Poynter directed Defendant Phillips to terminate a probation

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Tidd’s initial complaint named the “40th Judicial District”—apparently instead of the 40th
Judicial Circuit. Tidd’s amended complaints do not name either the 40th Judicial District or
Circuit. (Filing No. 24-2, Am. Compl. at ¶¶ 3–5; Filing No. 26-2, Second Am. Compl. at ¶¶ 3–
5).

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officer, but left the decision of which probation officer to terminate up to Phillips.” (Id. ¶
17). Phillips informed Plaintiff he was being terminated on December 13, 2013, even
though “he did not do anything wrong.” (Id. ¶ 18). At the time of his termination,
Plaintiff was forty-seven years old, and was “substantially older than other similarly
situated probation officers” who were not terminated. (Id. ¶ 20).
II.

Standard of Review
“To survive a motion to dismiss under Rule 12(b)(6), a complaint must ‘state a

claim to relief that is plausible on its face.’” Adams v. City of Indianapolis, 742 F.3d 720,
728 (7th Cir. 2014) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
claim is plausible when it “allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). In analyzing the sufficiency of a complaint, the court must “construe it in the
light most favorable to the plaintiff, accept well-pleaded facts as true, and draw all
inferences in the plaintiff's favor.” Carlson v. CSX Transp. Inc., 758 F.3d 819, 826 (7th
Cir. 2014) (citing Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008)).
However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. The degree of specificity
required by Twombly and Iqbal is “not easily quantified,” but the plaintiff must allege
facts sufficient to “‘present a story that holds together.’” McCauley v. City of Chicago,
671 F.3d 611, 616 (7th Cir. 2011) (quoting Swanson v. CitiBank, N.A., 614 F.3d 400, 404
(7th Cir. 2010)).

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III.

Discussion
Only the County Defendants’ motion to dismiss the Section 1983 claims against

Chief Probation Officer Phillips, in his personal capacity, remains for the court’s
consideration. Phillips raises four issues in support of dismissal.2 They are addressed
below.
First, Phillips argues he cannot be held personally liable because he did not have
the statutory authority to terminate Plaintiff. Indiana Code § 11-13-1-1 provides that
probation officers “serve at the pleasure of the appointing court,” but that a court “may
designate a probation officer to direct and supervise the work of the probation
department.” Phillips, as Chief Probation Officer, could therefore direct and supervise
the work of other probation officers, but he could not appoint or remove them.
In Plaintiff’s Second Amended Complaint, Plaintiff alleges that Defendants
Markel, McTavish, and Poynter ordered Phillips to terminate a subordinate probation
officer, and left the ultimate decision of whom to terminate to Phillips. (Second Am.
Compl. ¶ 17). Accepting Plaintiff’s allegations as true, the judges gave Phillips the
authority to terminate a probation officer, and Phillips chose Plaintiff. Thus, at a
minimum, whether Phillips had the authority to terminate Plaintiff’s employment is

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 Unlike Plaintiff’s former Complaint, Plaintiff’s Second Amended Complaint does not allege a
budgetary explanation for his termination. Therefore, the County Defendants’ rational basis
argument rooted in Bervid v. Alvarez, 647 F.Supp.2d 1006 (N.D. Ill. 2009) is no longer at issue.

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subject to dispute. Accordingly, the County Defendants’ motion to dismiss on that
ground is DENIED.
Second, the County Defendants argue that Plaintiff fails to state a claim that “CPO
Phillips intentionally discriminated” against Plaintiff because of his age, in violation of
the Equal Protection Clause of the Fourteenth Amendment. (Filing No. 17 at 12). To
state a claim for an equal protection violation, a plaintiff must show that (1) the
defendants discriminated against him based on his membership in a definable class and
(2) the defendants acted with a “nefarious discriminatory purpose.” Nabozny v.
Podlesny, 92 F.3d 446, 453 (7th Cir. 1996). “Discriminatory purpose . . . implies more
than intent as volition or intent as awareness of consequences. It implies that a
decisionmaker singled out a particular group for disparate treatment and selected his
course of action at least in part for the purpose of causing its adverse effects on the
identifiable group.” Id. (internal quotations omitted); see also Sung Park v. Ind. Univ.
Sch. of Dentistry, 692 F.3d 832 (7th Cir. 2012) (stating that a Section 1983 disparate
treatment claim based on a violation of the Equal Protection Clause in the employment
context requires a plaintiff to offer “facts that might plausibly support” discriminatory
intent; the conclusory allegation that “Defendants’ conduct was undertaken because of
[the plaintiff’s] race . . .” is insufficient); Rangel v. Brown, 445 F.Supp.2d 936, 938 (N.D.
Ill. 2006) (finding plaintiff’s allegation that “she was discharged for complaining about
sexual harassment in violation of her right to equal protection contains the inference that
she was discharged at least in part because she was a woman, and that similarly situated
male employees were treated differently than she was”).
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Here, Plaintiff claims he was substantially older than other similarly situated
probation officers who were not terminated, and that “he did not do anything wrong.”
(Second Am. Compl. ¶¶ 18, 21). No reason for his termination – other than
discrimination – is pleaded. (See id.). Plaintiff’s factual allegations, assumed to be true,
support the inference that Phillips chose to terminate Plaintiff at least in part because of
his age. Plaintiff’s allegations are sufficient to “nudge[] his claims” of invidious
discrimination “across the line from conceivable to plausible.” Iqbal, 556 U.S. at 680
(internal quotation marks and citation omitted). Accordingly, the County Defendants’
motion to dismiss on that ground is DENIED.
Next, the County Defendants argue that, even if the court were to find Plaintiff
states a valid equal protection claim against Phillips in his personal capacity, Phillips is
entitled to qualified immunity. The doctrine of qualified immunity “shields public
officials from liability when they act in a manner that they reasonably believe is lawful.”
Gonzalez v. City of Elgin, 578 F.3d 526, 540 (7th Cir. 2009). In determining whether
Phillips is entitled to qualified immunity, the court considers (1) whether the defendant
violated a constitutional right and (2) whether the right was clearly established. Id.
(citing Pearson v. Callahan, 555 U.S. 223, 236 (2009) (holding that a court may decide
the questions in whatever order is best suited to the case)). Because the court finds
Plaintiff states a plausible claim for relief under the Equal Protection Clause, the court
need only address the second prong.
The County Defendants argue that the “equal protection right asserted by
[Plaintiff] was not clearly established at the time of his termination in December 2013.”
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“A right is clearly established when, at the time of the challenged conduct, the contours
of a right are sufficiently clear that every reasonable official would have understood that
what he is doing violates that right.” Levin v. Madigan, 692 F.3d 607, 622 (7th Cir.
2012) (internal quotation marks and citation omitted). At the time of Plaintiff’s
termination, a reasonable person would have understood that discriminating against
someone based upon his or her age was unlawful. Id. (holding the individual defendants
were not entitled to qualified immunity because “[a]t the time of the alleged wrongdoing,
it was clearly established that age discrimination in employment violates the Equal
Protection Clause” and citing Kimel v. Florida Bd. of Regents, 528 U.S. 62, 83 (2000)).
Accordingly, Phillips is not entitled to qualified immunity at this stage of the litigation.
Finally, the County Defendants argue the ADEA precludes government employees
from invoking Section 1983 to bring age-based employment discrimination claims under
the Equal Protection Clause. In Levin, the Seventh Circuit rejected that argument,
holding that the ADEA does not preclude the use of Section 1983 to bring equalprotection age discrimination claims. 692 F.3d at 621–22. The court is bound by that
ruling.
IV.

Conclusion
For the reasons set forth above, the Plaintiff’s Motion for Leave to File Second

Amended Complaint and Demand for Jury Trial (Filing No. 26) is GRANTED;
Plaintiff’s Motion for Leave to File Amended Complaint and Demand for Jury Trial
(Filing No. 24) is DENIED as MOOT. In addition, the County Defendants’ Motion to

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Dismiss and for Final Judgment (Filing No. 16) is DENIED, and the State Defendants’
Motion to Dismiss for Failure to State a Claim (Filing No. 18) is DENIED as MOOT.

SO ORDERED this 14th day of July 2015.

__________________________________

RICHARD L. YOUNG, CHIEF JUDGE
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
United States District Court
Southern District of Indiana
Southern District of Indiana

Distributed Electronically to Registered Counsel of Record.

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