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Gillo v. Gary Community School Corp.

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

September 2, 2016

PETER T. GILLO, Plaintiff,
v.
GARY COMMUNITY SCHOOL CORPORATION, et al. Defendants.

          OPINION AND ORDER

          JOSEPH S. VAN BOKKELEN DISTRICT JUDGE

         Peter 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.

         A. Facts

         (1) Overview

         The Court views the following facts in the light most favorable to Plaintiff, the non-moving party.

         Plaintiff is deaf. (Compl., DE 1, ¶ 11.)

         Defendant 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.)

         During the decade of Plaintiff's employment, Defendant School suffered declines in enrollment and revenue. (Id. ¶ 1.)

         Plaintiff 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.)

         Plaintiff 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 him twice.

         (2) 2011: first termination, and first EEOC charge

         Plaintiff 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.)

         In May 2011, the School cancelled Plaintiff's contract, effective at the end of the 2010-11 school year. (Compl., DE 1, ¶ 68.)

         On 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.)

         In September 2011, however, the School called Plaintiff back to teach for the 2011-12 school year. (Letter from Campbell to Gillo, DE 166-6.)

         On June 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 45.)

         (3) 2012 through 2013: second termination, and second EEOC charge

         For the 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.)

         Plaintiff 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.

         Defendant 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.)

         At the 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 students. (Id.)

         All 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.)

         On July 23, 2013, the School cancelled Plaintiff's contract. (Id. ¶ 114.)

         On 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.)

         On 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.)

         (4) 2014

         On 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.)

         Plaintiff 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.)

         On July 1, 2014, Plaintiff retired from the School. (School Defs.' Mem. Supp. Mot. Summ. J., DE 166 at 3.)

         On 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.)

         On 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.)

         B. Pending claims and procedural posture

         In his complaint, Plaintiff brought the following claims against all Defendants:

(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 2008)”
(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. § 100.204(a)}”
(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.)

         The Court dismissed all claims against Defendants Deaf Service, Inc., Pampalone, and Duncan, pursuant to a joint stipulation. (Order, DE 114.)

         The 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.

         Both 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.

         C. School Defendants' motion to strike

         The 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.

         However, 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 affiants.

         As for the hearsay objections, they are vague and overly broad. The School Defendants fail to point to any specific instances of hearsay.

         Regarding 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 EEOC charge.

         Accordingly, the Court DENIES the School Defendants' motion to strike (DE 199) and turns to the motions for summary judgment.

         D. Summary judgment standard

         The 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 Cir. 1994).

         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 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 (1986).

         E. Discussion: overview

         The 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 this regard.

         In a 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.)

         The 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.)

         F. Count 1-equal protection and due process

         (1) Equal protection claim against all Defendants

         The 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.

         A claim 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.

         (2) Due process claim against all Defendants

         This leaves the Count 1 procedural due process claim.

         To 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).

         In the 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).

         But 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 following year.

         In 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.

         Indeed, 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).

         Even if 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 Cir. 1986).

         The due 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.

         Here, 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.

         As 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.

         G. Counts 2 and 3-ADA claims

         (1) Overview of ADA claims

         In 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.)

         In Count 3, Plaintiff claims Defendants retaliated against him for reporting the lack of ...


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