United States District Court, N.D. Indiana, Hammond Division
PETER T. GILLO, Plaintiff,
GARY COMMUNITY SCHOOL CORPORATION, et al. Defendants.
OPINION AND ORDER
S. VAN BOKKELEN DISTRICT JUDGE
Gillo sued Gary Community School Corporation
(“School”), Gary Teachers Union Local No. 4
(“Union”), and several individuals associated
with these entities. He alleges that Defendants discriminated
and retaliated against him due to his disability. The School,
Union, and associated individuals moved for summary judgment.
Court views the following facts in the light most favorable
to Plaintiff, the non-moving party.
is deaf. (Compl., DE 1, ¶ 11.)
Gary Community School Corporation is an Indiana public school
entity. (School Defs.' Answer to Compl., DE 72, ¶
14.) It employed Plaintiff as a teacher of deaf and
hard-of-hearing students from 2003 through the end of the
school year in 2013. (Compl., DE 1, ¶ 13.) Defendant
Gary Teachers Union Local No. 4 is a labor union
organization. (Id. at ¶ 23.) A collective
bargaining agreement covered Plaintiff from January 1, 2011,
through the end of his employment. (Decl. Zimmerman, DE
167-1, ¶ 8.)
the decade of Plaintiff's employment, Defendant School
suffered declines in enrollment and revenue. (Id.
claims he and his class of deaf and hard-of-hearing students
remained in a classroom during a fire drill in 2007 due to
the lack of visible fire alarms. (Compl., DE 1, ¶ 41.)
Plaintiff claims he complained about the lack of visible fire
alarms, and this led to retaliation against him.
(Id. at ¶¶ 41-53.)
claims Defendants discriminated against him because of his
disability, denied him reasonable accommodations, and
retaliated against him for requesting reasonable
accommodations. Plaintiff claims Defendant School terminated
2011: first termination, and first EEOC
claims that on May 5, 2011, he received a note from Defendant
Edmund Fraire, director of special education at the School,
informing Plaintiff of the elimination of his position as of
June 3, 2011, “because neither of the administrators at
Glen Park Academy nor Lew Wallace Hearing Impaired Programs
want to be bothered with your various demands for
accommodations of your deafness.” (Mem. from Fraire to
Gillo, DE 60 at 139.) Defendant Fraire denied writing this
memorandum. (Mem. from Fraire to Cook, DE 166-3.)
2011, the School cancelled Plaintiff's contract,
effective at the end of the 2010-11 school year. (Compl., DE
1, ¶ 68.)
August 25, 2011, Plaintiff filed EEOC Charge Number
846-2011-67632 (“first charge”) against the
School, alleging discrimination from May 5, 2011, through
June 3, 2011. (School Defs.' Mem. Supp. Mot. Summ. J., DE
166 at 2.) In this EEOC Charge, Plaintiff claimed that on
numerous occasions he asked for an interpreter, flashing fire
alarms, and a visual telephone, but the School denied these
accommodations. (Discrimination Charge, DE 60 at 130.)
Plaintiff also alleged, on the basis of Defendant
Fraire's purported statement, that the School terminated
him because School administrators did not want to be bothered
with his requests for accommodations. (Id.)
Plaintiff claimed the School discriminated against him
because of his disability, retaliated against him for
requesting reasonable accommodations, and discriminated
against him because of his age and sex. (Id.)
September 2011, however, the School called Plaintiff back to
teach for the 2011-12 school year. (Letter from Campbell to
Gillo, DE 166-6.)
18, 2012, the EEOC issued its determination regarding the
first charge. (Determination, DE 173 at 44-45.) The EEOC
determined that the evidence indicated the School had not
provided Plaintiff with reasonable accommodations for his
disability, and that there was evidence that Gillo's
requests for reasonable accommodations formed part of the
motive for his termination. (Id. at 44.) The EEOC
found reasonable cause to believe Plaintiff was discriminated
against on the basis of his disability, and retaliated
against for requesting reasonable accommodations, all in
violation of the Americans with Disabilities Act.
(Id.) Conciliation efforts began. (Id. at
2012 through 2013: second termination, and second EEOC
2012-13 school year, the School employed three teachers for
deaf and hard-of-hearing students: Plaintiff and two others.
(Decl. Zimmerman, DE 167-1, ¶ 10.) The School had hired
the two others years before hiring Plaintiff. (Id.)
Plaintiff, however, claims he has seniority among the
relevant group of teachers. (Pl.'s Mem. Supp. Resp.
School Defs.' Mot. Summ. J., DE 176 at 3.)
claims that during the 2012-13 school year, Defendant School
conspired with Defendant Union against Plaintiff, denying him
access to union membership benefits and sign language
interpreter services, subjecting him to harassment and
retaliation, and ultimately terminating him after the 2012-13
school year. (Compl., DE 1, ¶ 1.) Plaintiff claims the
School assigned a hearing teacher with an inferior license to
fill Plaintiff's absence. (Id.) Defendants
dispute these claims.
School claims it terminated Plaintiff's employment
because of a decline in student population, multiple school
closures, and a “severe financial crisis” which
required a reduction in force. (School Defs.' Mem. Supp.
Mot. Summ. J., DE 166 at 3.)
end of the 2012-13 school year, the School notified 102
teachers (including Plaintiff) that the School would not
renew their contracts, pursuant to a reduction in force.
(Union Defs.' Mem. Supp. Mot. Summ. J., DE 165 at 3;
Decl. Zimmerman, DE 167-1, ¶ 11.) The collective
bargaining agreement provided that teachers would be laid off
in these circumstances on the basis of least seniority.
(Union Defs.' Mem. Supp. Mot. Summ. J., DE 165 at 3.)
Defendants claim that at the end of the 2012-13 school year,
Plaintiff had the least seniority of the three individuals
employed by the School to teach deaf and hard-of-hearing
teachers facing cancellation of their contracts had the
opportunity to attend a meeting with the School
superintendent. (Decl. Zimmerman, DE 167-1, ¶ 11.)
Plaintiff attended this meeting, with union representatives
and an interpreter. (Id.) Plaintiff claims his case
was “comingled” with those of the “hearing
teachers, ” and was not mentioned specifically at the
meeting. (Compl., DE 1, ¶ 111.)
23, 2013, the School cancelled Plaintiff's contract.
(Id. ¶ 114.)
August 9, 2013, Plaintiff filed another EEOC charge against
the School: Number 470-2013-02972. (Discrimination Charge, DE
60 at 14.) Plaintiff claimed the School denied him reasonable
accommodations, harassed him, and discharged him because of
his disability, and in retaliation for filing an EEOC charge,
in violation of the ADA, as amended. (Id.)
December 13, 2013, Plaintiff left the United States on a trip
to Uganda. (Pl.'s Resp. School Defs.' Trial Br., DE
128 at 1.) Three days later, on December 16, 2013, the U.S.
Department of Justice sent Plaintiff a “Notice of Right
to Sue” letter regarding Charge Number 846-2011-67632.
(Notice Right Sue, DE 166-4.)
January 10, 2014, Plaintiff returned to Gary, and found U.S.
postal notices. (Pl.'s Resp. School Defs.' Trial Br.,
DE 128 at 2.) After some inquiry, the DOJ resent the
“Notice of Right to Sue” letter regarding Charge
Number 846-2011-67632 to Plaintiff on January 14, 2014.
(Resent Notice Right Sue, DE 60 at 128-29.) This version of
the letter noted that the new applicable date was the date of
the resent letter, and noted that Plaintiff had 90 days from
receipt of the resent letter to file suit. (Id.)
Plaintiff received this resent letter on January 16, 2014.
(Decl. Gillo, DE 174, ¶ 29.)
filed this suit on April 1, 2014. (Compl., DE 1.) The EEOC
issued a right-to-sue notice for the 2013 EEOC charge on
April 29, 2014, which Plaintiff received on May 5, 2014.
(Decl. Gillo, DE 174, ¶ 30.)
1, 2014, Plaintiff retired from the School. (School
Defs.' Mem. Supp. Mot. Summ. J., DE 166 at 3.)
August 1, 2014, Plaintiff filed in this case the right-to-sue
notice for the 2013 EEOC charge. (Dismissal and Notice
Rights, DE 60 at 7.)
October 20, 2014, Plaintiff withdrew his application for
retirement from the School. (Mem. Supp. Pl.'s Resp.
School Defs.' Mot. Summ. J., DE 176 at 8.)
Pending claims and procedural posture
complaint, Plaintiff brought the following claims against all
(1) Count 1: “VIOLATION OF 42 U.S.C. § 1983: (DUE
PROCESS AND EQUAL PROTECTION CLAUSES)”
(2) Count 2: “VIOLATION OF 42 U.S.C. § 1983,
VIOLATION OF 42 U.S.C. § 12112(a) (DISCRIMINATION BASED
ON DISABILITY: ADA 1990, AS AMMENDED, AMMENDMENT ACTS OF
(3) Count 3: “VIOLATION OF 42 U.S.C. § 1983
(WHISTLE BLOWER RETALIATION)”
(4) Count 4: “VIOLATION 42 U.S.C. § 1983: EQUAL
PROTECTION CLAUSES (VISIBLE FLASHING FIRE SAFET[Y] VIOLATION,
24 C.F.R. § 100.203 AND 24 C.F.R. §
(5) Count 5: “VIOLATION OF 42 U.S.C. § 1985(3):
CONSPIRACY TO INTERFER[E] WITH CIVIL [RIGHTS]”
(6) Count 6: “COMMON LAW CONSPIRACY” and
(7) Count 7: “I.C. § 34-15-1 (DEFAMATORY LIBEL,
TRADUCE AND CALUMNY).” The Court dismissed the
defamation claim against the School Defendants because
Plaintiff failed to file a timely tort claims notice. (Order,
DE 84 at 3.)
Court dismissed all claims against Defendants Deaf Service,
Inc., Pampalone, and Duncan, pursuant to a joint stipulation.
(Order, DE 114.)
remaining Defendants consist of two groups:
(1) The School Defendants: the School, Pruitt, Cook,
Fidishin, Fraire, Boarden, Greene, Craig, and Wright; and
(2) The Union Defendants: the Union, Zimmerman, Craig
(claimed by both groups in their motions for summary
judgment), Gardner-Johnson and Headen.
groups of Defendants moved separately for summary judgment.
The School Defendants also moved to strike three affidavits
submitted by Plaintiff. (School Defs.' Mot. Strike, DE
199.) The Court will address the motion to strike first.
School Defendants' motion to strike
School Defendants argue that the affidavits of Walton, Jr.,
Buterbaugh, and Powell- submitted by Plaintiff-fail to comply
with Federal Rule of Civil Procedure 56(c)(4) because they do
not state they are based on the personal knowledge of the
affiants, they contain inadmissible hearsay regarding what
other people said and did, and they reference dates beyond
those listed in an EEOC charge.
although Rule 56(c)(4) requires affidavits used to oppose a
motion for summary judgment to “be made on personal
knowledge, ” the Rule does not require affidavits to
state they are based on the personal knowledge of
the hearsay objections, they are vague and overly broad. The
School Defendants fail to point to any specific instances of
the objections involving dates, the School Defendants fail to
acknowledge the existence of two EEOC charges, and fail to
acknowledge that references to dates beyond those listed in
an EEOC charge could be relevant and admissible to
Plaintiff's non-ADA claims, and could even be relevant to
Plaintiff's ADA claims if the scope of the EEOC charge
included dates beyond those specifically referenced in the
the Court DENIES the School Defendants' motion to strike
(DE 199) and turns to the motions for summary judgment.
Summary judgment standard
Federal Rules of Civil Procedure mandate that motions for
summary judgment be granted “if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of
law.” Fed.R.Civ.P. 56(c). A party seeking summary
judgment bears the initial responsibility of informing a
court of the basis for its motion and identifying those
portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence
of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Once a properly
supported motion for summary judgment is made, the non-moving
party cannot resist the motion and withstand summary judgment
by merely resting on its pleadings. Fed.R.Civ.P. 56(e);
Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th
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 and
resolve all doubts in favor of that party. 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.
Anderson v. Liberty Lobby, 477 U.S. 242, 249-50
Court notes at the outset that a person cannot violate 42
U.S.C. § 1983. Counts 1 through 4 of Plaintiff s
complaint purport to state claims for violations of this
statute. But § 1983 “does not create substantive
rights” susceptible to violations. Levin v.
Madigan, 692 F.3d 607, 611 (7th Cir. 2012). Rather,
§ 1983 serves as “a means for vindicating federal
rights conferred elsewhere.” Ledford v.
Sullivan, 105 F.3d 354, 356 (7th Cir. 1997). For the
purpose of ruling on the motions for summary judgment, the
Court will look behind Plaintiff's erroneous language in
nutshell, Plaintiff alleges as follows:
• Count 1: Defendants did not renew his contract in
2013, in violation of the due process clause;
• Count 2: Defendants violated his rights under the
Americans with Disabilities Act and the Americans with
Disabilities Act Amendments Act by harassing and abusing him,
denying him reasonable accommodations, and discharging him
without due process;
• Count 3: Defendants retaliated against him for
reporting violations of safety regulations concerning the
lack of visible fire alarms;
• Count 4: Defendants violated regulations regarding
flashing fire alarms and ignored his requests for the
installation of such alarms or for transfer to buildings
containing such alarms; . Counts 5 and 6:
Defendants conspired to interfere with his civil rights, in
violation of 42 U.S.C. § 1985(3), and in violation of
Indiana common law; and . Count 7:
Defendants defamed him. As noted above, the Court dismissed
this Count as to the School Defendants. (Order, DE 84 at 3.)
gravamen of Counts 1 through 7 is that Defendants
discriminated against Plaintiff because of his disability,
failed to provide reasonable accommodations, retaliated
against him in connection with his disability and his reports
and requests regarding his disability, and defamed him.
(Compl., DE 1.) Plaintiff alleges this discrimination and
retaliation took the form of harassment, abuse, and, on two
occasions, termination of employment. (Id.)
Count 1-equal protection and due process
Equal protection claim against all
Court addresses the equal protection facet of Count 1 first,
as it is easily dismissed. Despite its
heading-“VIOLATION OF 42 U.S.C. § 1983: (DUE
PROCESS AND EQUAL PROTECTION CLAUSES)”-Count 1 does not
develop any equal protection claim, but instead focuses on a
due process claim. Nor does Plaintiff adequately develop
arguments for the purported Count 1 equal protection clause
violation in his summary judgment briefs.
is deemed abandoned when plaintiff fails to delineate it in
his brief in opposition to summary judgment. Palmer v.
Marion Cnty., 327 F.3d 588, 597-98 (7th Cir. 2003). The
non-moving party “waives any arguments that were not
raised in its response to the moving party's motion for
summary judgment.” Nichols v. Michigan City Plant
Planning Dep't, 755 F.3d 594, 600 (7th Cir. 2014).
“Arguments not developed in any meaningful way are
waived.” Cent. States, Se. & Sw. Areas Pension
Fund v. Midwest Motor Express, Inc., 181 F.3d 799, 808
(7th Cir. 1999). So, to the extent Count 1 purports to bring
an equal protection claim, the Court dismisses that claim
against all Defendants.
Due process claim against all Defendants
leaves the Count 1 procedural due process claim.
prevail on a procedural due process claim, Plaintiff must
establish that a state actor deprived him of a
constitutionally protected property interest without due
process of law. Hinkle v. White, 793 F.3d 764, 767
(7th Cir. 2015.) The United States Constitution does not
create property interests; “[r]ather they are created
and their dimensions are defined by existing rules or
understandings that stem from an independent source such as
state law-rules or understandings that secure certain
benefits and that support claims of entitlement to those
benefits.” Moore v. Muncie Police and Fire Merit
Com'n, 312 F.3d 322, 326 (7th Cir. 2002).
context of a fired public employee bringing a due process
claim against his employer, the Seventh Circuit has stated
that “[a] property interest in continued employment
‘can be created in one of two ways, 1) by an
independent source such as state law securing certain
benefits; or 2) by a clearly implied promise of continued
employment.'” Palka v. Shelton, 623 F.3d
447, 452 (7th Cir. 2010) (quoting Phelan v. City of
Chi., 347 F.3d 679, 681 (7th Cir. 2003)). Plaintiff
bears the burden of proving he had a constitutionally
protected property interest in his employment as a public
school teacher. Krieg v. Seybold, 481 F.3d 512, 519
(7th Cir. 2007.) Plaintiff must show he had a
“legitimate claim of entitlement” to the position
and not just an “abstract need, desire or unilateral
expectation.” Munson v. Friske, 754 F.2d 683,
692 (7th Cir. 1985).
Plaintiff has not shown that Defendants deprived him of a
constitutionally protected property interest. He claims he
was a tenured teacher, but shortly before the termination in
July 2013 about which Plaintiff complains in Count 1, the
School gave Plaintiff only a “reasonable
assurance” of continuing employment to teach the
following school year. (Compl., DE 1, ¶ 108.) The School
did not promise or guarantee that Plaintiff would teach the
short, Plaintiff points to no independent source such as
state law which secured his employment in this situation, and
Plaintiff points to no clearly implied promise to him of
continued employment. Plaintiff therefore has not shown he
had a constitutionally protected property interest in his
expectation of continued employment.
the School emphasized the argument that Plaintiff lacks a
constitutionally protected property interest in continued
employment. (School Defs.' Mem. Supp. Mot. Summ. J., DE
166 at 11.) But Plaintiff failed to respond, so he abandoned
his claim. See Johnson v. Gen. Bd. of Pension &
Health Benefits of United Methodist Church, 733 F.3d
722, 729 (7th Cir. 2013).
Plaintiff had demonstrated the deprivation of a
constitutionally protected property interest, his due process
claim still must fail. Plaintiff rests his due process claim
on Defendant's alleged failure to follow the Indiana Code
during the termination process. But the due process clause
does not necessarily entitle Plaintiff to any particular
process established by the Indiana Code. The Fourteenth
Amendment does not enforce compliance with state procedures.
Scott v. Village of Kewaskum, 786 F.2d 338, 342 (7th
process clause requires a pre-termination hearing before a
state actor may deprive a person of a constitutionally
protected property interest in public employment.
Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532,
542 (1985). The pre-termination hearing for a public school
employee need not be elaborate. Id. at 545. The
essential requirements are merely notice and an opportunity
to respond, orally or in writing. Id. at 546.
Plaintiff admits he received notice and an opportunity to be
heard regarding the termination in July 2013. (Compl., DE 1,
¶¶ 109-11; Letter from Boarden, School, to Gillo,
DE 60 at 103). Therefore, even if Defendants deprived
Plaintiff of a constitutionally protected property interest,
Plaintiff has not adumbrated any evidence showing they did so
without providing the process due under the Constitution.
there is no genuine issue of material fact as to Count 1, and
Defendants are entitled to judgment as a matter of law, the
Court dismisses Count 1 against all Defendants. The Court
also notes the presence of alternative grounds to dismiss
Count 1, but need not address them.
Counts 2 and 3-ADA claims
Overview of ADA claims
Count 2, Plaintiff claims the Defendants discriminated and
retaliated against him, and denied him reasonable
accommodations, in violation of the Americans with
Disabilities Act and the Americans with Disabilities Act
Amendments Act. (Compl., DE 1, Count 2.) Specifically,
Plaintiff claims that because of his disability, and in
retaliation for requesting accommodation, Defendants harassed
and abused him, denied him accommodations, and terminated his
employment. (Compl., DE 1, ¶ 151.)
Count 3, Plaintiff claims Defendants retaliated against him
for reporting the lack of ...