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Kubsch v. Indiana State Police

United States District Court, Northern District of Indiana, Hammond Division

January 8, 2015

JUDITH A. KUBSCH, Plaintiff,



This matter is before the court on a motion for summary judgment (DE # 36), filed by defendant Indiana State Police on February 15, 2013. On May 19, 2014, this court referred this motion to Magistrate Judge John E. Martin for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). (DE # 51.). On November 3, 2014, Magistrate Judge Martin filed his report and recommendation. (DE # 53.) Plaintiff timely filed an objection to the report and recommendation (DE # 59); defendant has indicated that it has no objections (DE # 58). The report and recommendation and subsequent objection are now ripe for ruling.


Because neither party disputes the material facts of this case as presented by Magistrate Judge Martin in his November 3, 2014, order, the court briefly recites the relevant facts, as Magistrate Judge Martin stated them, below.

Plaintiff has been employed as a trooper with defendant ISP since December 20, 1993, except for interruptions for military service. After plaintiff returned from Iraq in 2008, she was required to undergo two mental health fitness for duty evaluations (“FDEs”). While the first FDE was pending, plaintiff was removed from her regular duties and assigned to administrative duties. Reassignment to administrative duties involved the suspension of law enforcement authority with the surrender of badge, identification card, and weapon. The psychologist who performed the first FDE recommended that plaintiff attend sixteen counseling sessions but that she be allowed to return to her regular duties after completing four of them. Rather than report for administrative duties during the FDE process and mandatory counseling, plaintiff chose to use some of her accumulated sick days. Plaintiff returned to regular duty after completing four counseling sessions. Plaintiff’s reassignment to administrative duties pending the first FDE and during her first four counseling sessions did not result in any lost wages. Her only financial loss related to the FDE was the payment of insurance co-pays for the treatment that was mandated by the evaluating psychologist.

Later, plaintiff was informed that she had been assigned to escort bicyclists on a two-day charity ride. Plaintiff performed the first day of the escort but not the second. While plaintiff’s absence from the second day of the escort was being investigated as a possible rules violation, plaintiff was ordered to undergo a second FDE. She was again suspended from her regular duties and assigned administrative duties, this time at the Indiana Toll Road District instead of at her usual post at the Bremen District. Plaintiff asserts that she had no actual duties while assigned to the Toll Road District and that she was not allowed to use sick days to avoid the assignment as she requested. The examining psychologist concluded that plaintiff was fit for duty but recommended that she continue counseling. Plaintiff’s second temporary reassignment did not result in any lost wages.

Plaintiff made a report of sex discrimination with human relations on September 18, 2009. She then contacted the EEOC and on September 22, 2009, signed her first formal charge of discrimination. She alleged that she had been subjected to a hostile work environment, “workplace harassment, exclusion, intimidation, and unwarranted scrutiny of [her] job performance, ” including being required to undergo two mental health FDEs. (DE # 1, Ex. 1.) On September 24, 2009, plaintiff was formally charged with a violation of personnel rules for failing to report for the second day of the charity bicycle ride and for being discourteous to another officer on the first day of the ride. On October 1, 2009, plaintiff attended a hearing on those charges. On October 6, 2009, the superintendent concluded that the evidence supported the charges and ordered plaintiff suspended for ten days without pay.

On December 3, 2010, plaintiff received a written employee counseling form for alleged inappropriate communication with a dispatcher over the police mobile data terminal system on October 28, 2010. (Plaintiff had written “Are you allergic to phones?” after the dispatcher complained she had been unable to contact plaintiff over the police radio.) On December 3, 2010, plaintiff filed a second charge of discrimination with the EEOC, claiming the counseling form was retaliation for filing her EEOC charge and for complaining on October 28, 2010, that another officer embarrassed her over the police radio by accusing her of attempting to shirk her duties related to a car accident on that date.

After receiving right to sue letters for both charges, plaintiff filed a complaint (and later, an amended complaint) in this court, including claims for hostile work environment, disparate treatment, and retaliation in violation of Title VII of the Civil Rights Act of 1964. Defendant filed a motion for summary judgment, arguing that it is entitled to summary judgment on plaintiff’s disparate treatment and retaliation claims. As explained above, this court referred that motion to Magistrate Judge Martin. After Magistrate Judge Martin issued his report and recommendation, plaintiff filed an objection, which the court considers below.


In reviewing a magistrate judge’s report and recommendation, a district judge must “modify or set aside any part of the order that is clearly erroneous or is contrary to law.” Fed.R.Civ.P. 72(a). In this case, Magistrate Judge Martin’s order addressed a motion made pursuant to Federal Rule of Civil Procedure 56. That rule requires that motions for summary judgment be granted “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). As explained by the Supreme Court of the United States, Rule 56 requires the entry of summary judgment, after adequate time for discovery, 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) (citing Fed.R.Civ.P. 56(c)). “[S]ummary judgment is appropriate – in fact, is mandated – where there are no disputed issues of material fact and the movant must prevail as a matter of law. In other words, the record must reveal that no reasonable jury could find for the non-moving party.” Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994) (citations and quotations omitted). In viewing the facts presented on a motion for summary judgment, a court must construe all facts in a light most favorable to the non-moving party and draw all legitimate inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); NLFC, Inc. v. Devcom Mid-Am., Inc., 45 F.3d 231, 234 (7th Cir. 1995). A court’s role is not to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. See Anderson, 477 U.S. at 249-50.


Plaintiff’s “objection” to Magistrate Judge Martin’s report and recommendation is actually a potential objection conditioned on the answer she expects to receive from this court on the following question: “Does the ISP’s standardless practice of referring female officers for psychological fitness for duty evaluations at a rate of 2 to 3 times that of their male counterparts violate Title VII of the Civil Rights Act of 1963, regardless of whether the plaintiff suffered any pecuniary loss as a result of being referred twice for such evaluations?” If the answer is yes, then plaintiff claims she has no objections to the magistrate judge’s report and recommendation. If the answer is “no, ” then plaintiff has an objection to make. Plaintiff’s question was not previously presented to the court, and was not considered by the magistrate. Nor has defendant been afforded an opportunity to brief the issue. Plaintiff essentially seeks an advisory opinion without going through the appropriate procedural channels. Such a maneuver is improper, and the court will not entertain it.

Although the court will not consider plaintiff’s proposed question, it will consider the objection plaintiff claims she would make to the report and recommendation if the court’s answer to her question were “no.” Specifically, plaintiff argues that Magistrate Judge Martin incorrectly determined that plaintiff’s disparate impact and retaliation claims failed because plaintiff could not demonstrate the existence of an ...

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