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Curry v. City of Lawrence Utilities Service Board

United States District Court, S.D. Indiana, Indianapolis Division

March 3, 2014

CARLTON E. CURRY, Plaintiff,
CITY OF LAWRENCE UTILITIES SERVICE BOARD, CITY OF LAWRENCE, INDIANA, and DEAN JESSUP, Mayor, in his individual and in his official capacity, Defendants.



This matter is before the Court on the parties' cross motions for summary judgment. Plaintiff Carlton E. Curry ("Mr. Curry") seeks partial summary judgment on his claim under Indiana Code § 8-1.5-3-5(d) (Dkt. 9). Defendants City of Lawrence Utilities Service Board, City of Lawrence, Indiana ("the City"), and Dean Jessup ("Mr. Jessup"), individually and in his official capacity as Mayor of Lawrence (collectively, "Defendants"), seek summary judgment on all of Mr. Curry's claims (Dkt. 28). For the reasons explained below, Mr. Curry's motion is DENIED. Defendants' motion is GRANTED in part and DENIED in part.


A. Procedural Background

Mr. Curry originally filed this lawsuit in Marion Superior Court, Indiana asserting violations of 42 U.S.C. §1983, the Age Discrimination in Employment Act of 1967 ("ADEA") and various Indiana state law claims including wrongful termination, failure to pay wages, defamation and intentional interference with employment relationship. Defendants removed the action to federal court on January 30, 2013. Shortly thereafter, on February 22, 2013, Mr. Curry filed his Motion for Partial Summary Judgment (Dkt. 9). Defendants' response was filed in conjunction with their Motion for Summary Judgment (Dkt. 28) on July 25, 2013. In its response, Defendants do not specifically identify disputed facts within Mr. Curry's initial motion. Therefore, for the purposes of Mr. Curry's motion, his facts as stated will be assumed to be true to the extent admissible evidence supports them. Additional undisputed facts presented in Defendants' motion will be incorporated.

B. Factual Background

The following material facts are undisputed and considered in the light most favorable to the non-moving parties when considering the cross motions. On September 5, 2006, the Common Council for the City of Lawrence[1] ("Common Council") established the Utility Service Board ("USB") pursuant to Indiana Code § 8-1.5-3-3(a)(3), (f), and Lawrence Code of Ordinances, § 1-1-3-13. At a March 12, 2008, meeting of the USB, the position previously titled "director of utilities" was changed to "director/superintendent, " which is consistent with Indiana Code language.

In January 2008, Mr. Curry began a term on the Common Council. In 2009, then-mayor, Paul Ricketts ("Mr. Ricketts") approached Mr. Curry about becoming the "director/ superintendent" of the city owned municipal utility. Mr. Ricketts and Mr. Curry agreed that if installed as "director/superintendent, " Mr. Curry would resign his position on the Common Council. At the August 12, 2009 USB meeting, Mr. Ricketts discussed Lawrence building its own wastewater treatment plant and recommended Mr. Curry for the "director/superintendent" position. The USB voted unanimously to appoint Mr. Curry as "director/superintendent." Thereafter, Mr. Curry resigned his position on the Common Council.

The City owned wastewater and water utility is financed through water and sewage fees and has a separate budget from the City's general fund. The USB approves the utility's budgets and expenses. Utility employees are paid from the utility's budget, but through the City. For example, employees who work for both the utility and City receive salaries from both the utility budget and general fund, but receive only one combined City paycheck. Although the USB approves contracts for the utility, the mayor signs all contracts on behalf of the City.

While serving as "director/superintendent, " Mr. Curry worked closely with Mr. Ricketts. Specifically, Mr. Curry attended staff meetings with Mr. Ricketts and City department heads and frequently emailed Mr. Ricketts for guidance and to gain support for USB initiatives. In particular, Mr. Curry proposed that the City build its own wastewater treatment plant. He worked closely with Mr. Ricketts to negotiate with the current wastewater treatment provider, as well as to develop plans for the initiative.

In November 2011, Mr. Ricketts, a Republican, was challenged in the mayoral election by Democratic candidate, Mr. Jessup. Mr. Curry campaigned for Mr. Ricketts and other Republican candidates. Mr. Jessup ultimately won the election. Mr. Curry communicated with Mr. Jessup regarding the utility, including giving Mr. Jessup's transition team a presentation of utility matters. Mr. Jessup's transition team sent department heads and Mr. Curry correspondence inviting them to submit a resume and letter of interest if they wished to remain in their current position. In response, Mr. Curry sent his resume and letter of interest.

Mr. Jessup first learned about the proposed wastewater treatment plant from Commonwealth Engineering, a firm retained to consult on the project. He became concerned about the cost of the proposal and questioned whether the project was the best way forward. Mr. Curry advocated for the wastewater treatment plant. As a result of this advocacy, Mr. Jessup believed the working relationship between himself and Mr. Curry would be strained because of Mr. Curry's strong opinions regarding the direction of the utility. Mr. Jessup decided to replace Mr. Curry as "director/superintendent."

In December 2011, Mr. Jessup's transition team recommended John Solenberg ("Mr. Solenberg") as Mr. Curry's replacement. Mr. Solenberg was 12 years younger than Mr. Curry; however, both men are over the age of 40. Mr. Jessup believed Mr. Solenberg was qualified for the position and Mr. Solenberg agreed to accept.

Mr. Jessup assumed the office of mayor on January 1, 2012. Mr. Curry was notified in person and by letter dated January 19, 2012, that his employment was terminated effective January 20, 2012. He was paid all wages for work through that date, including accrued vacation and sick time. Mr. Curry was not given notice, a hearing, or a written statement of ...

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