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Swoope v. Gary Community School Corp.

United States District Court, N.D. Indiana, Hammond Division

March 30, 2015

DR. DAVID L. SWOOPE, JR. Plaintiff,


RUDY LOZANO, District Judge.

This matter is before the Court on the: (1) "Motion for Summary Judgment, " filed by Defendants, Gary Community School Corporation, Dr. Myrtle Campbell, and Dr. Cordia Moore (collectively "Defendants"), on June 30, 2014 (DE #126); (2) "Defendants' Motion to Strike Doc 135, " filed by Defendants on October 2, 2014 (DE #144); (3) "Defendants' Motion to Strike Documents 136, 136-1, 137, 138, 138-1, 138-2, 138-3, 138-4, 139, 139-1, 139-2, 139-3, 140, 140-1, 140-2, 140-3, 140-4, 141, 141-1, 141-2, 141-3, 142, 142-1, 142-2, 143, 143-1, " filed by Defendants on October 2, 2014 (DE #145); (4) "Verified Motion for Leave to File Plaintiff's Response to Defendants' Motion for Summary Judgment Instanter, " filed by Plaintiff, Dr. David Swoope ("Swoope"), on October 8, 2014 (DE #146); and "Defendants' Motion to Strike Document[s] 146, 147, 148, " filed by Defendants on October 22, 2014 (DE #150.) For the reasons set forth below, the Motion for Summary Judgement (DE #126) is GRANTED IN PART AND DENIED IN PART as set forth in the body of this Order, the Defendants' various Motions to Strike (DE #144, #145, & #150) are DENIED, and Swoope's Motion for Leave to File Instanter (or, more accurately, nunc pro tunc ) (DE #146) is GRANTED. Furthermore, in its discretion, the Court STRIKES the documents at the following docket entries sua sponte : DE #135 and DE #136 through #143.


Swoope filed this action against several defendants alleging various federal claims including gender discrimination, retaliation, harassment, and deprivation of due process. Swoope also raised various state law claims including breach of contract, defamation, and tortious interference with his contract. On April 26, 2011, this Court entered an opinion and order dismissing all claims against Defendants Dr. Stanley Wigle and Dr. Vernon Smith. (See DE #24.) The claims against Defendants, Gary Community School Corporation ("GCSC"), Dr. Myrtle Campbell ("Campbell"), and Dr. Cordia Moore ("Moore"), remained pending. On March 24, 2012, Swoope moved to amend his complaint and was granted leave to amend. (DE #66 & #72.) He filed his amended complaint on May 17, 2012, and Defendants moved to dismiss Swoope's amended complaint for failure to state a claim. (DE #74 & #76.) On August 28, 2012, this Court granted the motion to dismiss in part and denied it in part. (DE #82.) Counts I and II were dismissed with prejudice, and Counts III-VII remained pending. ( Id. ) On February 1, 2013, Swoope sought leave to file a second amended complaint. (DE #100.) He was granted leave to do so on April 1, 2013, and the second amended complaint was docketed several days later. (DE #105 & 106.) Defendants filed an answer and counterclaim against Swoope on June 11, 2013. (DE #107.)

Following a lengthy discovery period, Defendants filed the instant motion for summary judgment on June 30, 2014. (DE #126.) Swoope requested and was granted an extension of time within which to file his response. (See DE #132.) The Court ordered that Swoope's response was to be filed by September 30, 2014, and cautioned him that no further extensions were to be forthcoming. ( Id. ) On September 29, 2014, a document entitled "Violation of Human Rights and Constitutional Rights of Dr. Daoud Swoope Jr. El, Formerly known as Dr. David Swoope Jr." was filed by a person who referred to himself as "Prime Minister GSKS: Durriyyah Bey of the Moorish Nation-Moorish Science Temple of America Divine and National Movement Regency Headquarters" and Swoope's "Diving Minister and Spiritual Advisor." (DE #135.) On October 1, 2014, Swoope's attorney, Douglas Grimes ("Grimes"), filed a response in opposition to the motion for summary judgment which spanned several docket entries. (See DE #136-#143.) The next day, Defendants filed a motion to strike the filing of Durriyyah Bey, arguing that it was immaterial, impertinent, and scandalous as well as a motion to strike Swoope's response, arguing that it was untimely. (DE #144 & #145.) On October 8, 2014, Swoope filed a motion for leave to file his response to the summary judgment motion instanter, which expressed Grimes' difficulties in meeting the original deadline. (DE #146; see also exhibits and response brief at DE #147-#148.) On October 15, 2014, Swoope also filed a response to Defendants' motions to strike, arguing that those documents should not be stricken but rather should be construed as "supplementation" of the summary judgment record as a whole. (DE #149.) On October 22, 2014, Defendants filed another motion to strike, arguing that all documents filed after September 30, 2014, should be stricken as being redundant and/or untimely. (DE #150.) That same day, Defendants also replied to their original motion to strike, arguing again that the filings were indeed untimely. (DE #151.) Finally, on November 5, 2014, Swoope filed a response to Defendants' motion to strike, arguing that Defendants' motions were improper and unwarranted. (DE #152.) Defendants failed to file a reply in support of their motion for summary judgment.


Preliminary Issues

Before delving into the merits of the case, the Court must address the flurry of motions filed by the parties related to the admissibility of various documents. In a nutshell, Swoope filed his response to the motion for summary judgment one day late due to Grimes' alleged scheduling conflicts and time management issues. Defendants responded with several motions to strike, all of which were filed pursuant to Federal Rule of Civil Procedure 12(f). The Court agrees with Swoope that this is procedurally improper. Rule 12(f) provides that a district court "may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f). However, a response to a summary judgment motion is not a pleading, and bringing a motion to strike it under Rule 12(f) is procedurally improper. See Fed.R.Civ.P. 7(a) (defining pleadings finitely with a list that does not include motions or responses). Furthermore, a motion to strike under Rule 12(f) is untimely at this stage in the proceedings. See Fed.R.Civ.P. 12(f)(2) (party may move to strike "within 21 days after being served with the pleading" if no response is allowed). As such, the Court DENIES Defendants' motions to strike. (DE #144, #145, & #150.)

After due consideration, and noting that the interests of justice will be served by allowing the consideration of evidence found within Swoope's summary judgment response brief and exhibits, the Court GRANTS Swoope's motion for leave to file those documents nunc pro tunc. However, that ruling shall only apply to the documents filed by Swoope on October 8, 2014. (DE #147 & #148.) The documents filed by Swoope on October 1, 2014, are substantively identical to those filed on October 8, 2014. For purposes of clarity on the docket, those documents (which were erroneously filed as multiple responses) are hereby STRICKEN sua sponte. (DE #136 through #143.)

Finally, in its discretion, the Court will STRIKE the document filed by the person who referred to himself as "Prime Minister GSKS: Durriyyah Bey of the Moorish Nation-Moorish Science Temple of America Divine and National Movement Regency Headquarters" and Swoope's "Diving Minister and Spiritual Advisor, " because he is neither an attorney nor a party to this case and has no authority to file responses on behalf of Swoope. (DE #135.)


Summary judgment must be granted when "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). A genuine dispute of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Not every dispute between the parties makes summary judgment inappropriate; "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. In determining whether summary judgment is appropriate, the deciding court must construe all facts in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010). "However, our favor toward the nonmoving party does not extend to drawing inferences that are supported by only speculation or conjecture." Fitzgerald v. Santoro, 707 F.3d 725, 730 (7th Cir. 2013) (citing Harper v. C.R. Eng., Inc., 687 F.3d 297, 306 (7th Cir. 2012)).

A party opposing a properly supported summary judgment motion may not rely on allegations or denials in her own pleading, but rather must "marshal and present the court with the evidence she contends will prove her case." Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). If the nonmoving party fails to establish the existence of an essential element on which he or she bears the burden of proof at trial, summary judgment is proper. Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006).

While the initial burden of production "to inform the district court why a trial is not necessary" lies with the movant, the requirements imposed on the moving party "are not onerous" when it is the nonmovant who "bears the ultimate burden of persuasion on a particular issue." Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013). A party may move for summary judgment based on either "affirmative evidence that negates an essential element of the nonmoving party's claim" or by the other approach of "asserting that the nonmoving party's evidence [was] insufficient to establish an essential element of the nonmoving party's claim." Id. at 1169 (citation and internal quotation marks omitted). Both methods are acceptable under the current rules. Id.


On February 28, 2006, the GCSC Board of School Trustees approved Swoope's appointment to the position of Assistant Principal at Wirt Highschool. (Letter, DE #127-4.) Although he was hired as a non-statutory administrator, GCSC presented Swoope with a teacher contract for the school year beginning on July 1, 2006, and continuing until June 30, 2007; he signed the contract on August 30, 2006. (Contract, DE #147-17; Swoope Dep., DE #127-20, p. 5.) Swoope states in his response brief that he was "not [an] at will employee." (DE #148, p. 7.) To support that assertion, he cites to Exhibit 17, which contains the original teacher contract as well as an email dated October 5, 2009, from a person named Julie Slavens[1] to "Ragen, Dr. Campbell, and Darren." ( Id. ; see also Contract & Email, DE #147-17, pp. 1-4.) The email does not mention Swoope by name or specifically identify him in any way. (Email, DE #147, 17, pp. 2-4.) However, it does reference non-statutory and non-certified administrators in general, and it points out that those employees "have not been given a written contract since June 30, 2007. But each year the board has voted to retain these administrators with a slight increase in salary. Due to this board action each year, the contract for each of these administrative positions has continued." ( Id. at 2.) It is undisputed that Swoope's initial contract was renewed beyond its original term; on December 8, 2008, a date well past the initial contract's terms, GCSC sent Swoope a "preliminary notification" that it was "considering a decision not to renew [his] contract based on the configuration of schools, budget reductions and school closings." (Notification, DE #127-6.)[2] The notification indicates that "[y]ou will receive final notice of the Board's decision in thirty (30) days from the date of this letter per Indiana Code 20-28-8-3." ( Id. ) No such final notice is included in the record.[3] Swoope's last day of employment with GCSC was July 31, 2009. (Swoope Dep., DE #127-20, p. 4.)

At the time he was originally hired by GCSC, Swoope did not possess an Indiana Administrative License ("License"), but he agreed to complete the necessary course work at Indiana University Northwest ("IUN") to obtain it as soon as possible. (Swoope Aff., DE #147, p. 2.) In the interim, Swoope obtained an emergency permit related to his position as Assistant Principal. ( Id. ) Swoope's original emergency permit was issued by the State of Indiana on April 6, 2006, and expired on June 30, 2006. (Permit, DE #127-12.) His first renewal of that permit was issued on September 21, 2006, and expired on June 30, 2007. (Permit, DE #127-13.) His second renewal of that permit was issued on October 30, 2007, and expired on June 30, 2008. (Permit, DE #127-14.) Prior to the actual expiration of the second renewal permit, GCSC advised Swoope that the State Department of Education would not issue him another emergency permit in his current position because of its mandatory caps. (Letter, DE #127-1.) The letter indicated that, without exception, emergency permits were limited to one original and two renewal permits and that "[a]fter the second renewal (or third year), the emergency permit will not be renewed." ( Id. ) However, as noted above, it is undisputed that GCSC did indeed continue to employ Swoope well beyond the expiration of the last renewal permit.

In an attempt to gain the proper License, Swoope enrolled in the Administrative Licensure Program at IUN (the "Program"). (Swoope Aff., DE #147, p. 2.) According to Swoope, prior to and during his enrollment in the program, all of the other Program candidates employed by GCSC were female. ( Id. ) Dr. Vernon Smith ("Smith"), a professor at IUN, was the coordinator of the Program and was Swoope's advisor. (Swoope Aff., DE #147, p. 2; Smith Dep., DE #127-19, p. 3.) Swoope was given a syllabus and planning sheet that, combined, provided him with information regarding required courses and timing. (Smith Dep., DE #127-19.) One of the courses that Swoope needed to complete in order to graduate from the Program and obtain his License was the A695. (Smith Dep., DE # 127-19, p. 5.) The A695 experience/practicum had to be done in both an elementary setting and a secondary setting. ( Id. )[4]

Swoope successfully completed the A695 secondary setting experience/practicum at Wirt High School in Gary, Indiana. ( Id. ) He then began the A695 elementary setting experience/practicum at Marquette Elementary School in Gary, Indiana during the spring semester of 2009.[5] (Swoope Aff., DE #147, p. 6.) Swoope attended three practicum sessions at Marquette Elementary School before he was informed by Moore that he could no longer perform his experience/practicum there because he had violated GCSC's district policies, procedures, and protocol. ( Id. at p. 3; Letter, DE #147-20.) Specifically, on February 10, 2009, Swoope was told that he did not submit the proper paperwork or gain the requisite approval from Moore and/or Campbell before commencing the experience/practicum at Marquette Elementary School. ( Id. ) However, according to Judy Dunlap ("Dunlap"), the principal of Wirt High School, previous Program candidates who interned at that school (five total over the course of nine and a half years) were not required to get approval from the administration prior to starting an experience/practicum. (Dunlap Letter, DE #147-5.) In her letter to Moore, Dunlap pointed out that the intern prior to Swoope, Ms. Ava Ligon, did not need to get approval from GCSC and had successfully completed the A695 experience/practicum, gained her License, and became a principal within GCSC, despite missing one day a week in the building for an entire semester. ( Id. ) According to Dunlap, she had requested that Swoope be allowed to use his vacation days to complete the Program, and she was surprised that the request was not authorized as it had been for past interns. ( Id. ; see also DE #147-4.) Swoope ended up missing several weeks of practicum sessions before arranging to transfer his experience/practicum to Evans Elementary School in Hobart, Indiana. (Memo, DE #147-6; Swoope Dep., DE #127-20, p. 20.) He complained to Moore and Bill Cook about the discriminatory treatment by Moore and Campbell. (Swoope Aff., DE #147, pp. 1, 3.)

Although Swoope states in his response brief[6] that he completed all the required courses for the Program, the testimony that he cites in support of his position does not support that assertion. In full context, Smith's testimony is as follows:

Q: To your knowledge did Dr. Swoope complete all the required classes for the K through 12 Indiana Licensure Program?
A: He did not.
Q: Which ones did he not complete?
A: A695, second - our spring semester.
Q: Anything else?
A: No.
Q: What was the ...

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