United States District Court, N.D. Indiana
OPINION AND ORDER
WILLIAM C. LEE, JUDGE
matter is before the court on a motion for summary judgment
filed by the defendants on May 31, 2016. The plaintiff, Keith
Carter (“Carter”), filed his response on August
10, 2016, to which the defendants replied on September 6,
following reasons, the motion will be granted.
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 issue 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 precludes summary judgment,
however, since “[o]nly disputes over facts that might
affect the outcome of the suit under the governing law”
warrant a trial. Id. To determine whether a genuine
issue of material fact exists, the court must construe all
facts in the light most favorable to the non-moving party and
draw all reasonable inferences in that party's favor.
Heft v. Moore, 351 F.3d 278, 282 (7th Cir. 2003). A
party opposing a properly supported summary judgment motion
may not rely merely on allegations or denials in its 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).
defendants in this case are Lake County Community
Corrections, Lake County, Board of Commissioners of Lake
County, Lake County Community Corrections Advisory Board,
Brian Johns, Jeffrey Batchelor, Mark Murphy, Lea Johnson, and
Kellie Bittorf (collectively “Lake County”).
Carter, who is African-American, has sued Lake County
pursuant to Title VII, alleging race discrimination,
harassment and retaliation.
County has recited the following facts which it claims are
not in dispute. Lake County Community Corrections is an
agency in Lake County, Indiana, that oversees and supervises
inmates on residential or work release programs in Lake
County. During most times relevant, Kellie Bittorf was the
Executive Director of Lake County Community Corrections.
(Bittorf Decl., Ex. A, Dkt. No. 35-1, ¶ 2.).)
Additionally, Mark Murphy was the Director of Operations,
Jeffrey Batchelor was the Residential Manager, and Leah
Johnson was the Budget and Personnel Manager. (Bittorf Decl.
¶¶ 2-3; Murphy Decl., Ex. B, Dkt. No. 35-2,
¶¶ 2-3;.Johns Decl., Ex. C, Dkt. No. 35-3 ¶ 2)
Lake County Community Corrections operations are centered at
the “Kimbrough Center” (Carter Dep., Ex. D, Dkt.
No. 35-4, 53:17-24) named after a local African-American
judge who started the Community Corrections program. (Carter
Dep. 54:11-19.) Because the building is named the Kimbrough
Center for Judge James Kimbrough, there are a number of
building features that include the letter “K.”
(Bittorf Decl. ¶¶ 4-6.) These include bookends that
are decorated with the letter “K.” (Bittorf Decl.
¶ 6; see also Carter Dep. Exs. B, L.)
2002, Carter began employment with Lake County Correctional
Center as part-time Custody Officer. (Carter Dep. 22:6-8,
42:1-2.) Carter signed receipt of Lake County's Manual of
Policies and Procedures on September 27, 2002, including the
equal employment opportunity and anti-harassment policies.
(Carter Personnel File, Ex. E, Dkt. No. 35-5 at 0048-0050.)
2003, while he was still a part-time employee, Carter was
physically beaten by two former inmates. (Carter Dep.
97:18-25.) Those inmates were named Miles Beach and Eric
Lewis. (Carter Dep. 97:18-25.) After the incident, Carter was
told by Murphy and another official that Beach and Lewis
would not be allowed back in Lake County Community
Corrections programs. (Carter Dep. 98:1-3.)
March 2004, Carter also applied for a supervisor position
with Lake County Community Corrections. (Personnel File
0062-0063.) Ultimately, then-Executive Director Robert
Hinojosa declined to hire Carter for that position.
(Personnel File 0061.) Later in 2004, Carter applied to
become a full-time Custody Officer with Lake County Community
Corrections. (Personnel File 0060.) This time, Hinojosa hired
Carter to fill the full-time position. (Carter Dep. 22:9-11;
Personnel File 0064.) Thereafter, from 2004 to 2008, Carter
worked as a full-time Custody Officer. (Carter Dep. 42:7-10.)
2008, Carter transferred to a full-time Field Officer
position. (Carter Dep. 42:11-13.) In 2010, Carter moved back
to working as a full-time Custody Officer. (Carter Dep.
42:21-24.) In 2011, Carter again transferred to the full-time
Field Officer position. (Carter Dep. 43:19-21.)
2011, Eric Lewis-one of the individuals involved in the
original 2003 battery-was sentenced to serve a sentence with
Lake County Community Corrections by the Lake County Superior
Court. (Carter Dep. 98:21-25, 99:1-5.) Once this was
discovered, however, Lewis was removed from the Lake County
Community Corrections program. The Lake County Superior
Court-not Carter's supervisors-decides whether, how and
when to sentence individuals to Community Corrections.
(Carter Dep. 99:13-100:1.)
2013, Carter returned for a final time to the full-time
Custody Officer position. (Carter Dep. 50:6-10.) Throughout
his employment, Carter frequently worked with part-time
Corrections Officer Jimmy Glass and Custody Officer Angela
Steward. (Jimmy Glass Dep., Ex. F, Dkt. No. 35-6, 10:13-17;
Steward Decl., Ex. G, Dkt. No. 35-7, ¶ 3.)
Carter's employment, he was aware of Lake County's
policy against discrimination and harassment. (Personnel File
0048-0050.) In fact, the Handbook strictly prohibits
discrimination based upon race. (Lake Co. Handbook, Ex. H,
Dkt. No. 35-8, 0190.) The Handbook also prohibits harassment,
including “[c]omments or actions that are deliberately
hurtful, rude, unprofessional, or [that] offend other
employees.” (Handbook 0193.)
County's Employee Handbook provides a procedure through
which employees can bring complaints based on civil rights
violations. (See Handbook 0186-0187, 0193-0194.)
Employees with complaints about inappropriate or harassing
behavior are encouraged to bring the behavior to their
supervisors. (Handbook 0193-0194.) Any employees with
complaints about discrimination in the work place “has
a duty to immediately report the incident to the County Human
Resources Consultant … in accordance with [County]
policy.” (Handbook 0190.)
addition to these policies, the County also provides a very
specific complaint procedure for civil rights complaints.
(Handbook 0186-0187.) “Any employee who feels he/she
has received unfair treatment in discipline, pay, promotion
or assignment because of his/her race [or other protected
characteristics] … may file a complaint.”
(Handbook 0186.) The policy also refers all complaints to the
County's Grievance Committee for investigation and
determination. (Handbook 0186-0187.) The policy requires any
complaint to “be filed within thirty (30) calendar days
of the alleged discriminatory action.” (Handbook 0187.)
Carter's entire employment with Lake County Community
Corrections, he did not complain about any discrimination,
harassment, or other inappropriate conduct based on race.
(Bittorf Decl. ¶ 8; Murphy Decl. ¶ 9; Johns Decl.
¶ 5.) In addition, two of Carter's coworkers, Glass
and Steward never observed Johns, Batchelor, Murphy, Johnson,
or Bittorf discriminate against or harass someone on the
basis of race. (Glass Dep. 13:8-25, 14:1-21; Steward Decl.
¶ 5.) Carter never availed himself of these policies,
and he never complained regarding racial harassment in
writing. (Bittorf Decl. ¶ 8; Murphy Decl. ¶ 9;
Johns Decl. ¶ 5; Carter Dep. 24:11-14.) Carter never
submitted a formal complaint to the Human Resources
Consultant, nor did he submit a complaint to the Grievance
Committee. (Murphy Decl. ¶ 9; Johns Decl. ¶ 5.)
about March 24, 2014, Lake County eliminated all full-time
Custody Officer positions in its Community Corrections
program. (Personnel File 0085.) These positions were
eliminated for financial reasons. (Personnel File 0085.) In
particular, the increased cost of health insurance led Lake
County to determine that the cost of providing benefit
packages to these fulltime Custody Officers was too great for
the budget. (Personnel File 0085.)
time of this decision, Lake County employed two individuals
in the full-time Custody Officer position: Carter, who is
African-American, and Algird Galinas, who is Caucasian.
(Bittorf Decl. ¶ 11; Carter Dep. 119:8-11.) Neither
Carter nor Galinas were terminated outright. Instead, both
employees were placed in part-time positions with Lake
County. (Bittorf Decl. ¶ 12.) After Carter and Galinas
were placed in part-time positions, there were no remaining
individuals in the full-time Custody Officer position.
(Carter Dep. 122:19-25.) There were also no people in the
full-time Field Officer position. (Carter Dep. 123:1-6.)
after the decision was made to eliminate the full-time Field
Officer position, Johns, Murphy, and Batchelor all wrote
positive letters of reference for Carter. (Carter Dep.
123:7-18; Personnel File 0070-0071.) These letters spoke very
positively of Carter-calling him “very dedicated,
” saying he could be “count[ed] on” and
“recommend[ing]” him. (Personnel File 0070-0071.)
These letters make clear that “due to budget concerns,
Mr. Carter's full-time position was eliminated.”
(Personnel File 0070-0071.) Johns stated that “I am
pleased to continue to be able to work with him in that
[part-time] capacity.” (Personnel File 0071.)
upon learning of the termination of all full-time Field
Officer positions, Carter submitted his Charge of
Discrimination (“Charge”) with the EEOC.
(Personnel File 0001.) That Charge-filed on March 24,
2014-alleged discrimination on “5-20-2013” at the
“[e]arliest” and on “5-20-2013” at
the “[l]atest.” (Personnel File 0001.)
Charge states that “Batchelor” and
“Johns” are both “white and Klu (sic) Klux
Klan (KKK) members.” (Personnel File 0001.) The Charge
claims that Carter had been subjected to various “kinds
of hostility and harassment since 2004, ” that he was
told his “kind was not wanted there, ” and that
“white management has been trying to get rid of
me.” (Personnel File 0001.) He claims the “last
act” was on March 24, 2014 when he alleges he was
“demoted” “to a part-time position.
(Personnel File 0001.)
after March 24, 2014, when he and Galinas were put on
part-time status, Carter voluntarily left his employment at
Lake County. (See Carter Dep. 126-14-22.) Carter stopped
reporting to work but submitted no resignation at that time.
(Johns Decl. ¶ 16.)
on August 5, 2014, Carter submitted a resignation letter.
(Carter Dep. 128:6-9; Personnel File 0059.) In this
resignation letter, Carter did not state that racial
discrimination was related to his decision to resign. (Carter
Dep. 128:6-9; Personnel File 0059.) Instead, he stated he was
resigning “due to a lot of stress caused by …
the Executive Staff by eliminating my full time Custody
Officer position and moving me to part time. The reason given
was allegedly due to budgetary downfalls and employees
insurance.” (Personnel File 0059.)
also alleged that the budget was sufficient to keep his
position and that “he got moved around and then
demoted” when he “told you about hate symbols
being displayed … in the building.” (Personnel
File 0059.) Additionally, Carter has stated that he could not
afford to remain working for Lake County if he was employed
only part-time. (Carter Dep. 128:10-12.)
the investigation into his Charge, Carter discussed his
reasons for resigning with the EEOC's investigator.
(Carter Dep. 126:5-11, 127:5-21.) In a September 1, 2014
email, Carter stated to the investigator: “When I
turned in my resignation letter, I put I was resigning
because they, the executive staff, put a lot of stress on me
by eliminating my full-time position.” (Carter Dep.
the filing of his Charge, Plaintiff has made a number of
allegations for the first time against Lake County and the
Individual Defendants. These allegations include:
states that he received a picture in his work mailbox that
had the word “Teamwork” on it; the picture was a
photograph of rainbows and red and yellow tulips in an open
field. (Carter Dep. 88:13-89:4, Carter Dep. Ex. F.) Under the
photograph, the caption states: “Individually we are
special; together we are spectacular.” (Carter Dep. Ex.
F.) Carter states that this picture is race-based because
“the last song Hitler listened to was Blood Red Roses,
and the yellow roses are the yellow rose of Texas.”
(Carter Dep. 89:16-90:3.) Carter also stated, without a
reason, that the rainbow was a racist symbol. (Carter Dep.
also stated that-at some time in 2010 or 2011-an unknown
individual posted a picture on a wall in the Community
Corrections facility of a “black man with his pants
sagging.” (Carter Dep. 83:15-22.) Carter does not have
the picture or any evidence as to who posted it or how long
the photo was up. (Carter Dep. 83:19-20.)
also claims that he saw a picture of Murphy, Batchelor,
Johns, and Supervisor Roderick Threatt in 2011 or 2012.
(Carter Dep. 84:4-12.) In the picture, Carter claims that
Murphy, Batchelor, and Johns were portrayed as “The
Brady Bunch, ” and Threatt was portrayed as the
character “Buckwheat.” (Carter Dep. 84:4-12.)
Carter does not have the picture or any evidence as to who
posted it or how long the photo was up. (Carter Dep.
the Kimbrough building itself, Carter states that in a
supervisor's office, there are two bookends in the shape
of the letter “K.” (Carter Dep. 64:11-17; Carter
Dep. Ex. B.) The bookends were shaped like the letter
“K” because the building is named the Kimbrough
Center. (Murphy Decl. ¶¶ 4-6.)
also alleges that Murphy has two “gray lightning bolts
. . . and a five-point star” in his office. (Carter
Dep. 86:21-87:6.) Murphy has no such “lightning
bolts” in his office, but he does have a number of
plaques with the Lake County Sheriff's star. (Murphy
Decl. ¶ 17.) Carter also states that somewhere in the
Kimbrough building was a poster of a “black donkey with
a circle around it and a line drawn through it” in a
secretary's office across from the break room. (Carter
Dep. 62:2-12.) Carter states that this poster was in the
secretary's office from 2008 until 2012 or 2013. (Carter
Dep. 62:19-24.) No such poster has ever been in the
secretary's office. (Johns Decl. ¶ 6; Glass Dep.,
also cites to a poster of a group of skydivers with the word
“Teamwork.” (Carter Dep. 119:12-25, 120:1-25;
Carter Dep. Ex. L.) That poster-with skydivers forming a
pattern-is captioned: “Giving a hand makes all the
difference.” (Carter Dep. Ex. L.)
Carter complained of a fire evacuation plan for the Kimbrough
building that has a “cross” on it to depiction
escape routes. (Carter Dep. 77:4-8.) Carter claims the
evacuation plan's cross was the German “Iron
Cross” and, therefore, he claims it is also a symbol of
the Ku Klux Klan. (Carter Dep. 77:19-25, 78:1-9; Carter Dep.
also stated that, in two copies of the Inmate Rule Book, he
saw another depiction of a cross that he claims was an
“Iron Cross.” (Carter Dep. 81:22-82:2.) One copy
of the Inmate Rule was hanging up on a wall, and the other
was the copy available for all inmates and Custody Officers
to view. (Carter Dep. 82:3-11.) Other than his testimony,
Carter has provided no photos or other evidence of this
symbol in the Inmate Rule Book.
also alleges that he was harassed in other ways. He states
that, in 2008, his schedule was changed for one shift.
(Carter Dep. 55:5-9.) Carter typically worked the day shift,
but he was scheduled to work a later shift on one particular
day. (Carter Dep. 55:10-11; 57:9-11.) The reason ...