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Homoky v. City of Hobart Board of Public Works and Safety

United States District Court, Northern District of Indiana

November 24, 2014

KIRK HOMOKY, Plaintiff,



The Plaintiff, Kirk Homoky, is a City of Hobart police officer. In a Complaint filed in this Court on November 26, 2012, the Plaintiff sued the City of Hobart Board of Public Works and Safety (the Board) and others, claiming that they had deprived him of a property interest without due process of law in violation of the Fourteenth Amendment. The Complaint also asked the Court to enjoin the Board from denying the Plaintiff an evidentiary hearing on or before December 19, 2012, related to charges being pursued by the City of Hobart Chief of Police. This matter is before the Court on the Board’s Motion for Summary Judgment [ECF No. 43].


Summary judgment is appropriate “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. Summary judgment is the moment in litigation where the non-moving party is required to marshal and present the court with evidence on which a reasonable jury could rely to find in his favor. Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). The court’s role in deciding a motion for summary judgment “is not to sift through the evidence, pondering the nuances and inconsistencies, and decide whom to believe. The court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial.” Waldridge v. Am. Heochst Corp., 24 F.3d 918, 920 (7th Cir. 1994). A district court should deny a motion for summary judgment only when the non-moving party presents admissible evidence that creates a genuine issue of material fact. Luster v. Ill. Dep’t of Corrs., 652 F.3d 726, 731 (7th Cir. 2011) (citing United States v. 5443 Suffield Terrace, 607 F.3d 504, 510 (7th Cir. 2010); Swearnigen–El v. Cook County Sheriff’s Dep’t, 602 F.3d 852, 859 (7th Cir. 2010)). Material facts are those that are outcome determinative under the applicable law. Smith v. Severn, 129 F.3d 419, 427 (7th Cir. 1997). “Irrelevant or unnecessary facts do not deter summary judgment, even when in dispute.” Harney v. Speedway SuperAmerica, LLC, 526 F.3d 1099, 1104 (7th Cir. 2008).


On November 19, 2012, the Plaintiff was served with a letter from the Chief of Police, Jeffrey White. The subject line advised that the letter concerned “Unpaid Administrative Leave - Pending Termination of Employment.” (11-19-12 Letter, ECF No. 42-1.) Chief White’s letter accused the Plaintiff of failing to follow a lawful order to submit to a voice stress analysis at the Porter County Sheriff’s Department and failing to cooperate truthfully with an internal investigation ordered by the Chief. Other charges were also stated in the letter, specifically, violations of Department Rules and Regulations involving insubordination. Chief White informed the Plaintiff that “[e]ffective immediately you are relieved of your duties as a Hobart police officer and placed on unpaid administrative leave. It is my intention to seek termination of your employment before the Hobart Board of Public Works & Safety.” (Id.) The Plaintiff was ordered to relinquish his department property, and told that a lieutenant would keep him informed as the process moved forward.

The next afternoon, Chief White served the Plaintiff with written notice of the charges. The notice indicated that the Plaintiff had been advised of Chief White’s intention to seek the Plaintiff’s dismissal from employment with the Hobart Police Department. Chief White indicated that he would be presenting formal charges to the Board on Wednesday, November 21, 2012, and advised the Plaintiff of his statutory right under Indiana Code § 36-8-3-3 to request a hearing from the Board, which had to be received “within five days from your notice of intent to dismiss (termination of employment).” (11-20-12 Advise of Rights Letter, ECF No. 42-2.) Chief White advised the Plaintiff that, due to the impending Thanksgiving holiday, his written request for a hearing had to be received by the Board no later than Wednesday, November 28, 2012.

On this same date, Chief White served a letter on the members of the Board, with a copy to the Plaintiff. He stated, “It is my intention to seek termination of employment of Officer Kirk A. Homoky, without delay, for the following violations of the rules and regulations of the Hobart Police Department and Indiana law.” (11-20-12 Statement of Charges, ECF No. 42-3.) The Statement of Charges went on to specify two counts of misconduct. In the closing paragraph, Chief White wrote: “I would ask the Board to consider these charges and render a decision to affirm the termination of Officer Kirk A. Homoky’s employment with the Hobart Police Department at the earliest opportunity.” (Id.) The Chief confirmed that he had sent a copy of the letter to the Plaintiff and to his counsel, Christopher C. Cooper.

Attorney Cooper, believing that the letters and notices from the City of Hobart meant that a hearing to decide whether to terminate the Plaintiff’s employment would occur the next day, November 21, sent the Board a document to complain about the lack of reasonable notice and due process. Attorney Cooper wrote that the notice informed him “that tomorrow, in perhaps less than 15 to 20 hours, there will be meeting before the Hobart Board of Public Works & Safety, and there and then, an effort to terminate my client, Kirk Homoky, as a Hobart police officer.” (11-20-12 Response, ECF No. 42-4.) Attorney Cooper asked the Board to adhere to Indiana Code § 36-8-3-4 & 4.1, and demanded an evidentiary due process hearing.

The next day, the Board conducted its regular meeting. According to the minutes of the meeting, the Board heard Chief White’s review of the charges against the Plaintiff and his request for termination of employment. Chief White told the Board that an internal investigation was still in the process of being completed. The City Attorney advised that his review of the law and the documents presented by Chief White led him to conclude that there was no basis for the administrative leave to be unpaid where the officer was awaiting further proceedings on threatened disciplinary action. The City Attorney recommended that the Board confirm the administrative leave, but that it be with pay until further notice. He noted the filings from Attorney Cooper, including his appeal and hearing demand pursuant to Indiana Code § 36-8-3-4 & 4.1. The Board then scheduled a hearing for City of Hobart v. Kirk Homoky for January 23, 2013, confirmed the administrative leave with pay, and directed and authorized the City Attorney to provide the Plaintiff and his attorney with notice of the scheduled hearing and advise them of the Plaintiff’s rights. (11-21-12 Minutes, ECF No. 42-5.) The City Attorney provided Attorney Cooper with notice of the hearing date and time, explained the charges and the Plaintiff’s rights, and informed him that the Board had changed the terms of the Plaintiff’s leave to administrative leave with pay.

On November 26, 2012, the Plaintiff initiated litigation against the Board. One of the counts asserted in the Complaint was for injunctive relief to obtain a hearing no later than December 19, 2012. Four days later, on November 30, the Plaintiff, through Attorney Cooper, informed the City Attorney that he objected to scheduling the hearing on January 23, 2013, citing the requirement in Indiana Code § 34-8-3-4 (c), which requires that a hearing be held within 30 days of the request. On December 3, the City Attorney responded in writing to Attorney Cooper, stating that the evidentiary hearing had been rescheduled to December 13, 2012, per his request.

At a December 5 regular meeting of the Board, Chief White, through counsel, filed a Motion to Dismiss the charges against the Plaintiff that were pending before the Board. The Motion stated:

That an internal investigation which may involve Officer Homoky is nearing completion, and that given statutory time constraints, and the police department’s efforts will be better directed to the ongoing investigation. It would be better for all parties involved for these charges to be dismissed. Therefore, the ...

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