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McKinney v. The Office of Sheriff of Whitley County

United States District Court, N.D. Indiana

November 14, 2016

TERRANCE S. MCKINNEY Plaintiff,
v.
THE OFFICE OF THE SHERIFF OF WHITLEY COUNTY, INDIANA, et al. Defendants.

          OPINION AND ORDER

          William C. Lee, Judge.

         This 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.

         For the following reasons, the motion will be granted.

         Discussion

         Summary 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).

         McKinney, 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 battery.[1]

         The 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., par. 3.)

         McKinney 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.)

         Next, 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.)

         Next, 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.)

         Sheriff 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., par.16.)

         During 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. 5.)

         McKinney 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.)

         McKinney 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, ll. 2-25.)

         On July 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. (Id.)

         Deputy 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.

         McKinney 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.)

         In 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 ...


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