United States District Court, N.D. Indiana, Fort Wayne Division
WILLIAM A. LEE, SR., Plaintiff,
CITY OF ELKHART, Dale Pflibsen, in his official and individual capacity, and Richard W. Hubbard, in his private and individual capacity, Defendants.
OPINION AND ORDER
RESA L. SPRINGMANN, District Judge.
This matter is before the Court on Defendants City of Elkhart and Dale Pflibsen's Motion for Summary Judgment [ECF No. 52], Defendant Richard W. Hubbard's Motion for Summary Judgment [ECF No. 53], and the supporting and opposing memoranda and exhibits. "[T]he plain language of Rule 56(c) mandates the entry of summary judgment... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Because the Plaintiff has failed to present "definite, competent evidence, " Butts v. Aurora Health Care, Inc., 387 F.3d 921, 924 (7th Cir. 2004), upon which a jury could rely to find in his favor on any of his claims, the Defendants are entitled to judgment as a matter of law.
On January 17, 2012, Plaintiff William A Lee, Sr., filed a Complaint against the City of Elkhart, and the City's Chief of Police, Dale Pflibsen, in both his official and individual capacities. The Plaintiff also sued Richard W. Hubbard, as a PhD licensed psychologist who provided professional services to the Plaintiff. The Complaint lists a number of statutes under which the Plaintiff, a former City of Elkhart police officer, is suing, but does not specify which of these statutes apply to which Defendants, and it does not match up the three counts that he identifies with any specific statute. The statutes he cites are: 42 U.S.C. §§ 1983, 1981, 1981a, 1985(3), 1986, 1988, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, and 29 U.S.C. § 2601 et seq.
In their motions for summary judgment, the Defendants construe the Complaint as seeking relief on the following grounds: the Plaintiff was denied the benefits and privileges of the Elkhart Police Department general order 1.3.8 because of his race when he was not provided medical intervention and counseling before returning to work in 2009 after a shooting incident; he was denied his rights under the Family and Medical Leave Act (FMLA) because of his race; and the Defendants conspired to terminate his employment with the Police Department in retaliation for applying for FMLA leave and on the basis of his race.
The Defendants explicitly sought summary judgment on all of these claims. In his combined response to the Defendants' Motions, the Plaintiff has substantially narrowed the breadth of his claims. He argues that the City of Elkhart interfered with his substantive rights under the FMLA, see 29 U.S.C. § 2615(a)(1) ("It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter."), and that Defendants Pflibsen and Hubbard violated 42 U.S.C. § 1983 when they conspired to delay his diagnosis of Post Traumatic Stress Disorder (PTSD) so that the Plaintiff would not be on approved FMLA leave when Defendant Pflibsen sought to terminate the Plaintiff's employment.
STATEMENT OF FACTS
The Plaintiff was a police officer with the City of Elkhart Police Department from June 14, 2005, until the City's Board of Public Safety terminated his employment on February 10, 2011. Defendant Pflibsen has been the Chief of the Elkhart Police Department since January 1, 2008.
In 2008, the Plaintiff shot a suspect during the course of his police duties. He was placed on paid administrative leave to see a psychiatrist, per the Elkhart Police Department policy at that time. The Plaintiff returned to work after Dr. V. Thomas Mawhinney indicated that the Plaintiff was ready and able to perform his duties as a police officer. In February 2009, the Plaintiff was present when another officer was shot. The Plaintiff did not ask to go on administrative leave after the incident or to see a psychologist or psychiatrist.
On July 6, 2010, Elkhart Police Internal Affairs investigator Lieutenant Steve Mock was contacted by an employee of a local restaurant. The employee reported that the Plaintiff, while in full police uniform, grabbed a female co-worker's breast with enough force to knock her cell phone out of her front shirt pocket. Another employee also witnessed the event and verified the account. During the course of the internal affairs investigation, Lt. Mock learned of another incident involving a female employee of a 7-Eleven convenience store. The employee had filed a complaint in November 2009 concerning the Plaintiff's unwelcome and rude sexual touches, but the Plaintiff's supervisor, Sergeant Frank Thomas, had not reported the complaint to the Department of Internal Affairs.
The Plaintiff was placed on administrative leave with full pay and benefits while the allegations were investigated. At the conclusion of the investigation, Lt. Mock sustained both allegations of inappropriate touching and forwarded the case to Chief Pflibsen for disciplinary action against the Plaintiff. When Chief Pflibsen learned that Sgt. Thomas, the Plaintiff's supervisor at the time of the first complaint by the 7-Eleven female employee, did not report the complaint, Chief Pflibsen recommended that Sgt. Thomas be demoted from sergeant to corporal, and the Board of Public Safety approved the demotion. The Plaintiff was given a five-day suspension. Dr. Mawhinney conducted the Plaintiff's psychological evaluation for fitness for duty. Although Dr. Mawhinney did not declare the Plaintiff unfit for duty, he recommended that the Plaintiff receive follow-up counseling with Dr. Hubbard in an attempt to help him acquire skills to change his behaviors. Dr. Mawhinney also recommended that any further incidents of inappropriate sexual conduct result in the Plaintiff's termination from employment as a police officer. In his July 23, 2010, memorandum to the Plaintiff advising of the five-day suspension and counseling, Chief Pflibsen warned:
I sincerely hope that you have learned from this incident that this type of conduct will not and cannot be tolerated on duty or off duty. I cannot emphasize strongly enough should this type of allegation occur against, and is found to be sustained, you will leave me no choice to request your termination from the Elkhart Police Department through the Board of Safety.
(Ex. 15 to Def.'s Statement of Material Facts, ECF No. 58-15 at 2.)
The Plaintiff saw Dr. Hubbard three times during the months of August, September, and October. On October 7, 2010, Dr. Hubbard completed a short clinical report that summarized the first three sessions with the Plaintiff and stated that Dr. Hubbard was not aware of any behaviors that would make the Plaintiff unfit for duty. Dr. Hubbard stated that the Plaintiff only needed to ...