United States District Court, N.D. Indiana
TERRANCE S. MCKINNEY Plaintiff,
THE OFFICE OF THE SHERIFF OF WHITLEY COUNTY, INDIANA, et al. Defendants.
OPINION AND ORDER
William C. Lee, Judge.
matter is before the court on a motion for summary judgment
filed by the defendants, the office of the Sheriff of Whitley
County, Indiana (“the Sheriff”) and Tony Helfrich
(“Deputy Helfrich”), in his official capacity of
deputy sheriff and his individual capacity, on August 5,
2016. The plaintiff, Terrance S. McKinney
(“McKinney”), filed his response on September 7,
2016 to which the defendants replied on September 21, 2016.
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).
who is African American, has sued his former employer, the
Sheriff of Whitley County, alleging race discrimination and
retaliation, pursuant to Title VII of the Civil Rights Act of
1964, as amended. Additionally, McKinney alleges claims of
unlawful seizure and excessive force, as well as violation of
the Equal Protection Clause, brought pursuant to 42 U.S.C.
§ 1983. McKinney has also brought state law claims for
intentional infliction of emotional distress and
following facts are pertinent to the motion for summary
judgment. Former Whitley County Sheriff Mark Hodges hired
McKinney as a full-time merit officer in August of 2013.
(Affidavit of Mark Hodges, par. 1; deposition of Terrance
McKinney, p. 26, ll. 5-11.) As he was going through the
application process, McKinney was not aware of any hesitation
that anyone had in hiring him as a merit officer. (McKinney
Dep., p. 33, ll. 10-13.) McKinney was required to complete a
one year probationary period, as are all merit officers under
I.C. 36-8-10-10, during which Sheriff Hodges had the sole
discretion to terminate his employment without the approval
of the merit board under Merit Rules # 1-2.3 and 3-1.7.
(Hodges Aff., par. 2; Merit Rules # 1-2.3 and 3-1.7); I.C.
36-8-10-10. The probationary period is intended to determine
if an officer is capable of performing the duties of a merit
officer and to determine if there are any concerns with the
officer’s ability to perform such duties. (Hodges Aff.,
had multiple issues during his probationary period which
allegedly lead to the Sheriff’s decision to terminate
his employment. (Hodges Aff., par. 4.) McKinney had two
chargeable accidents with his County squad car, one of which
he did not report from the scene as required by the Whitley
County Sheriff’s Department Standard Operating
Procedures so that another officer could come to the scene to
complete a report; rather, he drove the squad to the station
and then reported the accident. (Id., par. 5.)
McKinney was given a verbal warning for failing to timely
report this accident. (Id.) Additionally, on October
15, 2013, McKinney was late taking juveniles to Court for an
appearance. (Id., par. 6.)
on December 10, 2013, a fellow officer reported that she
observed McKinney texting while driving on a transport.
(Id., par. 7.) When Sheriff Hodges asked Plaintiff
about this report, he responded that he was not texting but
that he may have been either checking his GPS or putting in
his password; regardless, he admitted to using his phone
while driving which is contrary to the Department’s
SOPs and is extremely unsafe. (Id.)
in December of 2013, McKinney was ordered to drive from
Columbia City, Indiana to the Westville Correctional Facility
and pick up a prisoner, and then go from Westville to
Plainfield Correctional Facility for another prisoner
transport. (Id., par. 8.) He first asked to make the
trip in the reverse order, but was told that he could not.
(Id.) He then made the transport from Westville, but
never went to Plainfield. (Id). When he was asked
why he did not go to Plainfield, he stated that the transport
from Westville took too long and he had family plans that
evening. (Id.) He did not contact anyone with the
Sheriff’s Department to obtain permission to disregard
the transport order. McKinney was given a written warning for
not carrying out the transport order. (Id.) Finally,
while McKinney was at the Indiana Law Enforcement Academy
(ILEA), he did not turn in his monthly report as required by
the Whitley County Sheriff’s Department SOPs, he
reported his time at the Academy incorrectly and failed to
fuel up at the County fueling station during his weekends
home as required by the SOPs and instead used his County
credit card. (Id., par. 9.) Based on the above
instances of problems during his probationary period, Sheriff
Hodges determined that McKinney was not suited for performing
the duties of a merit officer and terminated his employment
effective May 16, 2014. (Id., par. 10.)
Hodges states in his affidavit that he had previously
terminated a male Caucasian probationary merit officer in
2008 because, similar to McKinney, he had repeated issues
with performance that caused him concern. (Id., par.
11.) These included failing to respond appropriately to a
personal injury accident, taking longer than required to
respond to a residential alarm, failing to include a witness
in a written report of an OWI arrest, failing to
appropriately follow through on investigations, failing to
respond immediately to a call for assistance in the jail,
failure to properly complete a jail record for a court, and
failing to obtain proper approval for overtime.
(Id.) Sheriff Hodges previously terminated another
male Caucasian Transport Officer for repeated problems with
performance, including being late to work, allowing contact
between inmates and their families and friends in court, and
speeding in a Department vehicle without authorization.
(Id., par. 12.) Sheriff Hodges also previously
terminated three male Caucasian Confinement Officers.
(Id., par. 13.) One was terminated in 2009 for
dispensing improper medication to an inmate, another was
terminated in 2010 for two instances of sexual harassment,
and the third was terminated in 2014 for three instances of
policy violations. (Id., pars. 13-14.) Sheriff
Hodges also previously terminated a female Caucasian
dispatcher for repeated violations of policies and
procedures, including sending an ambulance to the wrong
location three times. (Id., par. 15.) Hodges states
that McKinney’s race was not a factor in his decision
to terminate McKinney’s employment. (Id.,
his probationary year, McKinney went through a taser class,
combatives and firearms training, drug interdiction training
and was assigned multiple officers whom he rode with
throughout the initial portion of his time with the Whitley
County Sheriff’s Department. (McKinney Dep., p. 34, ll.
2-22.) McKinney was given eight hours of firearms training in
person by Chip Stevenson and eight hours of defensive tactics
training in person by Justin Blake. (Id., p. 127, l.
24-p. 128, l. 9.) McKinney was then given a thumb drive and
looked at PowerPoint presentations and realized “it was
all stuff I knew.” (Id., p. 70, p. 9-p. 71, l.
took and passed the test and received a certification for
completing the 40 hour pre-basic class. (Id., p. 71,
ll. 5-18.) Kory Bailey, whom McKinney claims is a similarly
situated white employee, had the certification before he came
to the Whitley County Sheriff’s Department, so he did
not need the 40 hour pre-basic class.(Id., p. 67, l.
23-p. 68, l. 2.) McKinney also attended the Indiana Law
Enforcement Academy during his one year probationary period.
(Id., p. 33, ll. 14-19.) McKinney was given the
Sheriff Department’s SOPs, merit board rules and the
Whitley County Government policy manual in the first week of
his employment and was told by Sheriff Hodges to look through
them. (Id., p. 41, l. 7-p. 42, l. 20.) When McKinney
talked to Sheriff Hodges about feeling that he was not
getting enough training in traffic stops, Sheriff Hodges
personally took McKinney out to run some traffic stops and
switched him to a different field training officer.
(Id., p. 37, l. 1-p. 38, l. 16.) McKinney states
that he learned a lot when he rode with officer Billy Maddox
during training, who is a “great guy” and
McKinney enjoyed riding with him. (Id., p. 55, ll.
11-18.) McKinney also testified that officer Brandon Smith
was good to him when he rode with him during training.
(Id., p. 55, ll. 11-20.) McKinney feels that Cory
Patrick, the officer that he was predominantly with, did not
train him; however, McKinney testified that he cannot say
that the lack of training was because McKinney is African
American. (Id., p. 55, l. 24-12.)
was allowed to go out on traffic stops on his own shortly
before he went to the Indiana Law Enforcement Academy.
(Id., p. 39, l. 4-p. 40, l. 6.) McKinney never
reported to his supervisors any comments, jokes, statements,
use of a racial slur or anything that made him feel
uncomfortable during his time at the Sheriff’s
Department. (Id., p. 57, l. 23-p. 59, l. 19; p. 66,
6, 2013, the Whitley County Sheriff’s Department
received a 911 call reporting that a green Ford Ranger driven
by a black male northbound on CR 800E was carrying a stolen
refrigerator from a house under construction. ( CAD report;
CD containing 911 audio.) The caller provided his name, phone
number, and his place of employment. The caller stated that
he had seen the Ranger drive by previously, and then return
to the house with a purple Saturn. (Id.) The caller
stated that as he was calling, the Ranger and Saturn were at
the house and preparing to leave. (Id.) The caller
stated that the owner of the house was
“Terrance.” (Id.) The caller stated that
he knew the homeowners of the house where the refrigerator
was being taken from because he had put in the wiring for the
house, and that he did not recognize the people taking the
refrigerator and believed that it was being stolen.
Helfrich responded to the call. At that time, McKinney was
driving his truck northbound on CR 800E with a refrigerator
in it on his way to Sears. As he was driving, he noticed a
police car coming and pulled over to the right so the car
could pass him. (McKinney Dep, p. 112, ll. 5-8.) The police
officer, Deputy Helfrich, then turned around and approached
McKinney’s vehicle. (Id., p. 112, ll. 8-14.)
McKinney did not know Deputy Helfrich at this time, and
Deputy Helfrich did not know McKinney. (McKinney Dep., p.
112, ll. 15-20.) Deputy Helfrich told McKinney to turn his
car off and put the keys on top of the truck, and ordered
McKinney out of the truck. (Id., p. 112, ll. 22-24.)
McKinney claims that he exited the truck and there was a gun
pointed at him. (Id., p. 112, l. 25-p. 113, l. 1.)
McKinney claims that Deputy Helfrich ordered him to lay on
the ground, cross his legs, and then handcuffed him.
(Id., p. 113, ll. 7-8.) Deputy Helfrich then ordered
McKinney to get up and asked him where he got the
refrigerator. (Id., p. 113, ll. 9-10.) McKinney
testified that Deputy Helfrich did not push Plaintiff on the
ground or physically put him down on the ground.
(Id., p. 113, ll. 19-21.) McKinney admits that he
would refer to the video of the stop to show how he was
handcuffed. (Id., p. 113, l. 21-p. 114, l. 5.) This
video, which is in evidence, has been reviewed by the Court.
testified that he was detained for two or three minutes, and
then Deputy Helfrich realized that it was McKinney’s
refrigerator in the truck, took the handcuffs off and let
McKinney go. (Id., p. 115, ll. 9-17.) A video of the
stop shows that McKinney was handcuffed for approximately
three minutes, while Deputy Helfrich looked at paperwork
obtained from McKinney’s truck. (Defendant’s Ex.
6, video at 11:42-11:45.) According to McKinney, Deputy
Helfrich told him that they had received a call saying that
he was stealing a refrigerator and that was why he was pulled
out of the car at gun point. (Defendant Ex. 5, no. 16.)
McKinney states that, having been a law enforcement officer,
if he received a call of somebody having stolen a
refrigerator and it being in a pickup truck and saw himself
in a pickup truck with a refrigerator, he would stop the
person. (McKinney Dep., p. 124, ll. 16-23.) McKinney alleges
in his Complaint that Deputy Helfrich’s acts of
pointing a gun at him, handcuffing him, pulling him up by his
handcuffs and detaining him for an “amount of
time” constituted excessive force. (Id., p.
115, ll. 4-8.)
support of their motion for summary judgment, the defendants
first argue that McKinney has failed to support his claim
that his termination was an act of racial discrimination. A
plaintiff seeking to prove discrimination may either offer
direct or circumstantial evidence of discrimination or
provide indirect evidence through the framework articulated
in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
93 S.Ct. 1817 (1973.) To succeed under the direct method,
McKinney must offer either direct evidence that would prove
the fact in question-the discriminatory intent-without
reliance on inference or presumption, or “a convincing
mosaic” of ...