United States District Court, N.D. Indiana, Hammond Division
AARON CARSON, CHARLES COLLINS, JOHN CURTIS, MARY DOBRIJEVICH, DONNIE JONES, CATHERINE KOBY, GWEN LANE, MATTHEW LUBARSKI, JOHN J. MCBRIDE, SR., JANET NICKOVICH, RONALD PAULSIN, CHARLES J. PODGORNY, PATTIE G. PODGORNY, JOHN D. PRUZIN, DANNY SEBBEN, HELEN G. SUTTON, DENNIS TOBIN, CAMILA A. TREVINO, MARIAN VUKAS, and SUSAN WYATT, Plaintiffs,
LAKE COUNTY, INDIANA, Defendant.
OPINION AND ORDER
R. CHERRY, MAGISTRATE JUDGE UNITED STATES DISTRICT COURT
matter is before the Court on (1) Defendant's Motion for
Summary Judgment [DE 40], filed by Defendant Lake County,
Indiana, (“Lake County”) on June 13, 2016; (2)
Plaintiffs' Motion for Partial Summary Judgment [DE 42],
filed by all Plaintiffs on June 13, 2016; (3) Defendant's
Motion to Submit Omitted Exhibit [DE 45], filed by Lake
County on July 14, 2016; (4) Plaintiffs' Motion to Strike
[DE 49]; and Defendant's Request for Oral Argument [DE
53], filed by Lake County on August 8, 2016. For the reasons
set forth below, the Court grants summary judgment in favor
of Defendant Lake County, Indiana on all of Plaintiffs'
April 11, 2014, a Complaint was filed by Plaintiffs Aaron
Carson, Charles Collins, John Curtis, Mary Dobrijevich,
Donnie Jones, Catherine Koby, Gwen Lane, Matthew Lubarski,
John J. McBride, Sr., Janet Nickovich, Charles J. Podgorny,
Pattie G. Podgorny, John D. Pruzin, Danny Sebben, Helen G.
Sutton, Dennis Tobin, Camila A. Trevino, Marian Vukas, and
allege that they were terminated from their employment by
Defendant Lake County in violation of their rights under the
Age Discrimination in Employment Act, 29 U.S.C. § 621,
et seq. (ADEA), and in violation of their rights
pursuant to the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution, brought under 42
U.S.C. § 1983.
County filed an Answer on May 28, 2014.
October 1, 2014, Ronald Paulsin filed a Motion to Intervene,
which was granted on October 2, 2014. Paulsin's
Intervenor Complaint was filed on October 2, 2014, bringing
the same claims as those brought by the original Plaintiffs.
13, 2016, Lake County filed a Motion for Summary Judgment on
all claims, and Plaintiffs filed a Motion for Partial Summary
Judgment on all claims.
14, 2016, Lake County filed a Motion for Leave to File
Omitted Exhibit, asking the Court to allow it to file the
Declaration of Larry Blanchard, which Lake County had relied
on in its Motion for Summary Judgment but had not attached to
the motion. Lake County also filed its response to
Plaintiffs' Motion for Partial Summary Judgment.
same day, Plaintiffs filed their response to Lake
County's Motion for Summary Judgment. Plaintiffs also
filed a Motion to Strike, asking the Court to strike Lake
County's reference to the Declaration of Larry Blanchard
in its Memorandum in Support of its Motion for Summary
Judgment because Lake County did not attach the declaration
as an exhibit to its motion.
15, 2016, Plaintiffs filed a response to the Motion for Leave
to File Omitted Exhibit. On July 27, 2016, Lake County filed
a reply in support of its Motion for Leave to File Omitted
Exhibit and in opposition to Plaintiffs' Motion to
August 1, 2016, Plaintiffs filed a reply in support of their
Motion for Partial Summary Judgment. Defendants have not
filed a reply in support of their Motion for Summary
Judgment, and the time to do so has passed.
parties filed forms of consent to have this case assigned to
a United States Magistrate Judge to conduct all further
proceedings and to order the entry of a final judgment in
this case. Therefore, this Court has jurisdiction to decide
this case pursuant to 28 U.S.C. § 636(c).
TO STRIKE AND MOTION TO SUPPLEMENT
Motion to Strike and Lake County's Motion to Submit
Omitted Exhibit both concern Lake County's failure to
attach Exhibit 1, which is the Declaration of Larry
Blanchard, to its Motion for Summary Judgment. The
Declaration of Larry Blanchard is extensively cited for
background information on the financial health of Lake
County. However, little of the information is material to the
Court's decision on the central legal issues, and the
substance of the Declaration is repeated in other evidence
offered by both Lake County and Plaintiffs. In addition, as
recognized by Plaintiffs, the Declaration of Larry Blanchard
is properly considered in response to Plaintiffs' Motion
for Partial Summary Judgment, as it was timely submitted.
Extensions of time for the filing of dispositive motions were
granted, and the trial date is quickly approaching. Thus,
because most of the information in Larry Blanchard's
Declaration is immaterial, because Plaintiffs would be
prejudiced by not having had the benefit of the Declaration
in responding to Lake County's Motion for Summary
Judgment, and because there is insufficient time for
supplemental briefing prior to trial, the Court grants
Plaintiffs' Motion to Strike and denies Lake County's
Motion to Submit Omitted Exhibit.
Federal Rules of Civil Procedure require that a motion 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). Rule 56 “mandates the entry of
summary judgment, after adequate time for discovery and upon
motion, 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). “Summary
judgment is appropriate when no material fact is disputed and
the moving parties are entitled to judgment as a matter of
law, meaning that no reasonable jury could find for the other
party based on the evidence in the record.” Carman
v. Tinkes, 762 F.3d 565, 566 (7th Cir. 2014).
seeking summary judgment bears the initial responsibility of
informing the 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, that it believes demonstrate the
absence of a genuine issue of material fact. See
Celotex, 477 U.S. at 323; Fed.R.Civ.P. 56 (a), (c). The
moving party may discharge its initial responsibility by
simply “‘showing'-that is, pointing out to
the district court-that there is an absence of evidence to
support the nonmoving party's case.”
Celotex, 477 U.S. at 325; see also Spierer v.
Rossman, 798 F.3d 502, 508 (7th Cir. 2015). When the
nonmoving party would have the burden of proof at trial, the
moving party is not required to support its motion with
affidavits or other similar materials negating the
opponent's claim. Celotex, 477 U.S. at 323, 325;
Spierer, 798 F.3d at 507-08; Modrowski v.
Pigatto, 712 F.3d 1166, 1168-69 (7th Cir. 2013).
the moving party puts forth evidence showing the absence of a
genuine dispute of material fact, the burden shifts to the
non-moving party to provide evidence of specific facts
creating a genuine dispute.” Carroll v. Lynch,
698 F.3d 561, 564 (7th Cir. 2012). The non-moving party
cannot resist the motion and withstand summary judgment by
merely resting on its pleadings. See Fed. R. Civ. P.
56(c)(1), (e); Flint v. City of Belvidere, 791 F.3d
764, 769 (7th Cir. 2015) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). The nonmoving
party must “do more than simply show that there is some
metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986) (quoting Fed.R.Civ.P. 56(e)
(1986)). Rule 56(e) provides that “[i]f a party fails
to properly support an assertion of fact or fails to properly
address another party's assertion of fact as required by
Rule 56(c), the court may . . . consider the fact undisputed
for purposes of the motion [or] grant summary judgment if the
motion and supporting materials-including the facts
considered undisputed-show that the movant is entitled to it
. . . .” Fed.R.Civ.P. 56(e); see also
Anderson, 477 U.S. at 248-50.
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, 477 U.S. at 255;
McDowell v. Vill. of Lansing, 763 F.3d 762, 764, 765
(7th Cir. 2014); Srail v. Vill. of Lisle, 588 F.3d
940, 948 (7th Cir. 2009). 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.
cross motions for summary judgment, a court construes,
“all inferences in favor of the party against whom the
motion under consideration is made.” Speciale v.
Blue Cross & Blue Shield Ass'n, 538
F.3d 615, 621 (7th Cir. 2008). The Court looks to the burden
of proof each party would bear on an issue at trial. Diaz
v. Prudential Ins. Co. of Am., 499 F.3d 640, 643 (7th
Cir. 2007) (quoting Santaella v. Metro. Life Ins.
Co., 123 F.3d 456, 461 (7th Cir. 1997)).
Lake County, Indiana's health care self-insurance fund
liquidated its cash reserve by 2013 from a fund that had a
balance of $11 million as of 2007.
2007 through 2013, Lake County offered all of its employees
over the age of sixty-five an opportunity for voluntary
retirement with the ability to immediately begin receiving
Public Employees' Retirement Fund benefits and also
maintain health insurance as secondary coverage to Medicare
for a period of time. Under the 2010 Early Retirement
Options, employees were presented with three options.
“Option Two, ” relevant to this litigation,
provided that an employee who is age sixty-five and who has
at least five years of continuous service on or before a
given Dated: (1) will receive five years of health insurance
coverage at the same rate as regular full-time employees
after which the rate would increase to the rate charged to
other retirees; (2) must enroll in the Medicare program with
Lake County's health insurance plan serving as secondary
coverage to Medicare coverage; and (3) may return to work at
Lake County on a part-time basis, not to exceed twenty-four
hours per week at their pre-retirement hourly wage. If the
employee's employment is terminated (whether voluntarily
or through layoff/reduction in force), the employee would
remain eligible for the reduced cost of health insurance for
the five years. Also, “[t]his option does not guarantee
part time employment.” (Def. Br., Ex. 5, p. 2). Lake
County offered health insurance coverage to retirees,
including part-time employees over the age of sixty-five,
through Aetna Insurance (“Aetna”).
part-time employees of Lake County, Plaintiffs were not
eligible for full-time benefits but received the Medicare
supplemental health insurance policy through Aetna that was
paid for by Lake County. They received this benefit either as
a result of their prior employment with Lake County or
through a spouse who was employed by Lake County.
in 2013, Lake County learned from Aetna that, under the
Patient Protection and Affordable Care Act, commonly called
the Affordable Care Act, employees who had retired and been
rehired part-time who were receiving the Aetna supplemental
coverage either would not be able to remain employed or would
have to give up the health insurance supplement. As a result,
Lake County hired Larry Grudzien, an employee benefits
attorney, and tasked him to look at Aetna's contention
that it would no longer allow active, part-time employees to
participate in the retiree-only insurance plan as a result of
the Affordable Care Act. Attorney Grudzien met with the Lake
County Commissioners regarding his opinion on this issue.
Dabertin (the Lake County Human Resources Consultant) and
Lake County Commissioner Michael Repay presented a PowerPoint
presentation to Lake County officials and department heads
entitled “The Health Care Reform Act and the Medicare
Secondary Rules: How do these affect a retired and then
rehired part-time Lake County employee?” (Pls. Mot.,
Ex. 14, p. 1). The PowerPoint presentation answers the
question, “What Employees Does this Affect?”:
affected employee meets ALL of the following criteria:
1. Has retired from and then was rehired part-time by Lake
2. Is over 65;
3. Has Medicare as Primary Medical Coverage;
4. Is eligible for or currently has Aetna as the Lake County
Government Retiree Health Care Plan.
Id. at 3. The PowerPoint presentation further
explains: “Under the new requirements of the Health
Care Reform Act and the Medicare Secondary Rules individuals
who are retired and rehired by their former employer (paid
either by W-2 OR 1099) ARE NOT eligible for the Retiree
Supplemental Medical Plan.” Id. at 5. The
document advises that an affected employee becomes ineligible
for the Aetna Retiree Supplemental Coverage the day that the
employee is rehired part-time by Lake County. It also asserts
that affected employees “must be removed as Lake County
employees before October 1, 2013.” Id. at 7.
The PowerPoint presentation advises that, going forward, the
Lake County Council and Lake County Board of Commissioners
need to create a procedure to insure that future Lake County
retirees on Medicare are not rehired part-time and that
“an affected employee at 65 will need to be released
from Lake County employment.” Id. at 12.
August 21, 2013, Dabertin wrote a letter to all but one of
the Plaintiffs, terminating the employment of each as of
September 30, 2013. (Plaintiff Ron Paulsin was terminated in
2014 with an identical letter.) The letter explains that the
Affordable Care Act regulates the rehiring of retired
employees and the health insurance coverage that those
individuals receive. He wrote:
[A]n individual that meets all of the following provisions
may not be employed and receive health insurance benefits:
• The individual has retired from, and then was rehired
part-time by Lake County;
• The employee is over 65;
• The employee receives Medicare as his/her primary