United States District Court, S.D. Indiana, Indianapolis Division
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY
William T. Lawrence, Judge United States District Court
the Court is the Defendant's fully briefed Motion for
Summary Judgment (Dkt. No. 59). The Court, being duly
advised, now GRANTS the Defendant's
motion for the reasons set forth below.
Rule of Civil Procedure 56(a) provides that summary judgment
is appropriate “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.” In ruling on
a motion for summary judgment, the admissible evidence
presented by the non-moving party must be believed, and all
reasonable inferences must be drawn in the non-movant's
favor. Zerante v. DeLuca, 555 F.3d 582, 584 (7th
Cir. 2009) (“We view the record in the light most
favorable to the nonmoving party and draw all reasonable
inferences in that party's favor.”). However, a
party who bears the burden of proof on a particular issue may
not rest on its pleadings, but must show what evidence it has
that there is a genuine issue of material fact that requires
trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986); see also Johnson v. Cambridge Indus., Inc.,
325 F.3d 892, 901 (7th Cir. 2003) (“[S]ummary judgment
is the put up or shut up moment in a lawsuit, when a party
must show what evidence it has that would convince a trier of
fact to accept its version of events”) (internal
quotation omitted). Finally, the non-moving party bears the
burden of specifically identifying the relevant evidence of
record, and “the court is not required to scour the
record in search of evidence to defeat a motion for summary
judgment.” Ritchie v. Glidden Co., 242 F.3d
713, 723 (7th Cir. 2001); see also Herman v. City of
Chicago, 870 F.2d 400, 404 (7th Cir. 1989) (“A
district court need not scour the record to make the case of
a party who does nothing.”).
Plaintiffs' Factual Allegations
Court notes at the outset that, in ruling on the
Defendant's summary judgment motion, it has been hindered
by the Plaintiff's muddled presentation in this case. It
has had to expend entirely too much of the Court's
limited resources sorting through both facts and argument.
For example, many of the facts contained in the
Plaintiff's Factual Background and Statement of Material
Facts in Dispute section are not supported by the evidence of
record to which the Plaintiff cites. The facts that follow
are those that are supported by the record and viewed in the
light most favorable to the Plaintiff. Additional facts are
included in the Discussion section below.
Employment with KHA
November 2008, Riley began working for Kokomo Housing
Authority (“KHA”) as a front desk clerk in
KHA's Housing Choice Voucher Program
(“HCVP”), which provides vouchers to low income
individuals and families to subsidize rent in privately owned
rental properties throughout Kokomo, Indiana. She answered
phones, greeted visitors to the office, sent out letters for
appointments, and did filing. Dkt. No.79-1 at 10. When Riley
began her employment with KHA, Shirley Young was the CEO, and
Mariella Kelly was KHA's Director of Human Resources.
Cheryl Morrow became the Director of Human Resources on
October 15, 2011, and Debra Cook became CEO on April 30,
also maintains a separate public housing program, renting
units it owns to low income tenants. During Riley's
employment, the offices for this program were located in a
different building from the HCVP offices. Id.
Conditions and Leave
2000 and 2003, Riley was diagnosed with bipolar disorder,
generalized anxiety disorder, depression, post-traumatic
stress disorder, and frontal lobe seizures. She also
experienced photosensitivity that could trigger seizures. She
first sought leave for seizures and severe anxiety in
mid-March 2010. Dkt. No. 65 at 13-16. Her treating physician
assistant certified that she would require periodic leave of
one to eight hours of leave per day for up to two days per
week. Id. at 15.
mid-March 2010 on, Riley continued to use intermittent leave.
She recertified her leave on five occasions. See Id.
at 17-44. In each instance, her treating physician assistant
explained that her condition was “lifelong” and
that “during excerbation [sic], ” she was unable
to “perform any work” or “function.”
Id. at 14; 18; 22; 26; 31; and 42. In addition,
Riley took a block medical leave from September 18, 2013,
through October 31, 2013, for frequent panic attacks. See
Id. at 35-38. In that leave certification, Riley's
nurse explained that Riley was unable to perform essential
job functions due to her condition, stating that she was
“unable to interact well with others [at] this
time.” Id. at 36.
Incident with Public Housing Recipient
March 30, 2010, Riley and Nichole Tarrant, a public housing
recipient, got into a physical altercation. Tarrant was
dating Riley's daughter's father, and Riley's
daughter was at Tarrant's home that day. Riley went to
Tarrant's home to pick up her daughter. Her daughter came
outside and told Riley that she did not want to leave. Her
daughter then went back inside Tarrant's house. Tarrant
closed and locked the screen door. Riley punched through the
screen and unlocked the door. Tarrant then went outside, and
the two women engaged in a physical altercation. Riley was
charged with battery and criminal mischief and pled guilty to
criminal mischief. She informed KHA of the incident.
April 2010, Riley was transferred out of her HCVP front desk
position. She then split her time between the HCVP office and
a new position in the public housing office. Dkt. No. 79-1 at
14. Her new position was titled community services clerk/low
rent public housing clerk.Dkt. No. 79-1 at 14. Carol
Kindlesparker, another KHA employee, was transferred to the
HCVP office to take over Riley's former duties. When
working in the HCVP location, Riley worked out of a small
filing room/closet because Kindlesparker sat at the front
December 1, 2010, Riley was promoted to the position of low
rent application processing clerk in the public housing
program. Id. She received a pay raise of nearly $4,
000.00. Id. Her duties included processing
applications for low rent public housing, interviewing
applicants, maintaining a wait list and applicant files, and
communicating with applicants when units became available.
Id. at 16; see also Dkt. No. 61 at 6. She
no longer worked in the small filing room/closet or had
access to HCVP recipients' files. She remained in this
position until her termination on May 12, 2014.
Complaints Regarding Co-Workers
2010, Riley complained to Young about a co-worker, Mary
Sarra. Dkt. No. 79-1 at 36. She complained that Sarra made
“belligerent comments, ” sent
“sexual[-]in[-]nature forwards, ” smelled like
alcohol and was sent home for a hangover, had her bills paid
by another employee, and otherwise received “extreme
preferential treatment.” Id. Riley also made
several complaints about another co-worker, Joe Milam.
Id. at 35. In 2012, she complained that Milam
“wears jeans any day (not just Friday's [sic]) and
wears them so low that the crack of his bottom has been
exposed multiple times . . . all the staff finds offensive to
the point of it being a sexual harassment issue.” Dkt.
No. 65 at 107; see also Dkt. No. 79-1 at 63
(“wearing his pants the way he does on a daily basis,
that's sexual harassment, when I can see his bottom every
single day”). In both 2012 and 2013, she complained
that Milam made derogatory comments about public housing
recipients, implying that “[they] deserve less because
[they are] low income, ” Dkt. No. 79-1 at 69; see
also Dkt. No. 65 at 107 (“When he is talking to us
in our office[, ] he uses very derogatory language, talks
down about the clients and procedure of KHA.”). She
also complained that “he believed that bedbugs were a
behavioral issue, ” Dkt. No. 79-1 at 70, and that, in
April 2014, he “made the comment that . . . mental
illness and substance abuse goes [sic] hand in hand, ”
Dkt. No. 79-1 at 69-70. In addition, she complained that
Milam ate breakfast on the clock and “is constantly on
his cell phone with his wife, mother, day care centers for
his child . . . handling personal business at work since his
first day.” Dkt. No. 65 at 107.
also complained more than once to Morrow that Tina Bellis,
her direct supervisor, touched and kissed her. She “let
[Morrow] know that . . . [Bellis will] put her arm around
you, give you a kiss on the cheek. She'll set her breast
-- like walk up so close to you and just kind of set her
breasts on you.” Dkt. No. 79-1 at 71. Riley explained
that “[s]he didn't just do it to me, she did it to
other men in the office, the other ladies in the office, so
it wasn't just me.” Id. at 72. After they
had sexual harassment training, Riley told Morrow that
Bellis's behavior “was getting to the point to
where it was considered sexual harassment, as far as the
handbook is concerned.” Id. at 71. After that
complaint, the behavior stopped. Id. Morrow
investigated Riley's complaints and issued a memorandum
on December 31, 2012, explaining that she counseled Bellis
regarding the behavior. See Dkt. No. 65 at 109.
Riley made several other complaints about Bellis, including
about how she had a “very offensive odor, ”
“will scratch her private area, ” and “is
not aware of how to do the most simple of things in the
office.” Id. at 107.
about Riley from Co-Workers
Riley's employment, KHA received various complaints about
Riley from her co-workers. Kindlesparker sent Morrow a
memorandum on March 13, 2013, complaining about Riley's
tone, that she was “not friendly, very monotone and
very hateful toward [her]” and Bellis. Dkt. No. 65 at
61. Milam also complained about Riley. Dkt. No. 79-1 at 35.
Cook did not address these complaints with Riley.
received reports from others complaining of Riley's
negative attitude toward co-workers. Dkt. No. 60-1 at 5. For
example, she learned of the following interactions prior to
Riley's termination. On March 13, 2014, Jay Byars, who
had recently moved from maintenance into administration, sent
Riley an email asking Riley to explain the process for
filling empty rental units. Dkt. No. 65 at 62-63. Byars
acknowledged that he was “still learning the whole
process, ” but thought that prospective tenants had 24
hours to respond that they were interested in obtaining
housing rather than 72 hours, as he believed Riley had told
him when they had spoken the week before. Id. at 62.
Riley responded by explaining the process to him and
concluded her message saying, “if you don't believe
someone is doing their job correctly then say
something.” Id. Riley did not find her
response to be disrespectful, but agreed that it was
defensive “to a certain extent maybe.” Dkt. No.
79-1 at 38. She was offended because “[Byars] was
acting as though [she] didn't know how to do [her] job,
but [he acted like] he knew what he was doing. He had just
started.” Id. at 39.
also learned that on April 16, 2014, Bellis sent an email to
Riley explaining the process for handling online
pre-applications. See Dkt. No. 60-1 at 5 (citing
Dkt. No. 65 at 60). It was in response to a conversation that
they had had earlier with Kindlesparker. The next day, Riley
responded that she understood what her responsibilities were
and added, “[a]lthough I don't understand where
this random email came from and why you are speaking to me as
if I am unaware of my job.” Dkt. No. 65 at 60. In
response to Bellis's request that Riley note when she
gets no response from a housing applicant or when she learns
that a telephone number is disconnected, Riley stated
“I am also competent enough to know to keep notes if a
number is disconnected or an email is invalid when trying to
contact somebody.” Id. In her deposition Riley
explained that she took a defensive tone in response to
Bellis's email, but denied that she was unprofessional.
Instead, she believed Bellis's email was unprofessional
for the following reason:
She's talking about a situation she didn't know
anything about. She's talking about a conversation that
she involved herself in. And when I asked her for her
opinion, she said that she didn't know anything about it.
Now all of a sudden she sends me an email all of an [sic]
sudden knowing everything about it.
Dkt. No. 79-1 at 36.
April 22, 2014, Kindlesparker complained to Morrow and Cook
that Riley argued with her and was upset about the
pre-application process when Kindlesparker told her that
people who come into the office were to complete the online
pre-application rather than filling out paper applications.
Dkt. No. 60-1 at 19.
March 7, 2014, Riley received a written warning for
insubordination and a policy violation. See Dkt. No.
79-14. The warning explained that Riley “arranged a
[t]ransfer” of a tenant from one public housing unit to
another without an approval of the tenant's transfer
request or a completed move-out inspection. Id. On
March 6, 2014, Riley scheduled an appointment for a current
tenant, who happened to be her friend, to visit a unit. Dkt.
No. 79-1 at 41-42. The same day, Riley sent an email to
Margaret King, a KHA leasing specialist, providing the
tenant's name and explaining, “There is no
app[lication]. She would be transfer.” Dkt. No. 65 at
67. King requested the tenant's file from Riley, and
Riley stated that she would have the tenant's file sent
to her. Id. From the information Riley provided to
her, King assumed that the tenant was already approved for
the transfer, id., so she leased the property to the
tenant, Dkt. No. 60-4 at 25. Because the tenant had not been
approved for the transfer, King received a verbal warning for
leasing the property. See id.
does not dispute that she received a written warning for
arranging the transfer. She signed the disciplinary warning.
See Dkt. No. 79-14. However, she argues that she was
falsely blamed for the unapproved transfer. Dkt. No. 80 at 7.
She did not have the authority to authorize a transfer.
Id. Riley contends that her only involvement in the
transfer process is to schedule appointments for prospective
tenants to see units. Dkt. No. 79-1 at 41-42. The
tenant's name was on her transfer list, so she scheduled
an appointment. Id. at 43. The Court summarizes the
normal process for a tenant seeking to transfer as follows:
The tenant submits a written request to transfer. That
transfer request is then either approved or denied by Bellis
or Kearnes. See Id. Approved tenants then have their
names given to Riley so that she can call them to set up
appointments for them to visit an available unit.
Id. Riley stated that, “as far as [she] was
aware, ” that process had occurred prior to her calling
the tenant “[b]ecause she was on [Riley's]
Leading to Termination
7, 2014, Riley learned that people were moving into a housing
unit without completing the standard steps in the process.
She believed the move to be unauthorized, so she went to
Kindlesparker's office and told both Kindlesparker and
Bellis, who was in Kindlesparker's office at the time,
about the situation. Bellis relayed the information to Cook,
and Bellis then told Riley that Cook knew about the move and
described it as a special circumstance. “Riley
questioned Bellis' explanation because KHA did not have
special circumstances.” Dkt. No. 80 at 8. “[S]he
was upset that the procedures were not being followed and
only the Kokomo Police Department . . . and Cook knew who was
moving into the unit.” Id.; see also
Dkt. No. 79-1 at 51.
point, Riley called Cook to talk with her about the matter.
Cook told Riley that she was busy. Riley, still upset, then
called the Indianapolis HUD office. See Dkt. No.
79-1 at 53 (responding to the question, “Do you
acknowledge that on May 7th you became upset?, ” Riley
answered: “When my CEO didn't follow directions,
and she expects everyone else to, yes, that's when I
called and reported her.”). She spoke with Nathanial
Johnson, a HUD intake analyst. “[She] told him that
[she] wanted to report a fraudulent activity or something
that [she] suspected was inappropriate.” Id.
at 52. “He told [her] that he would send the
information to Forrest Jones, which was his boss . . . and
that [she] should also take it up with the Civil Rights
discussing the situation with Cook, Bellis complained about
Riley's behavior. She explained that Riley was at that
moment confrontational and disrespectful. Dkt. No. 60-8 at 4.
After Cook learned this information, she instructed
Kindlesparker to go to Riley's office. Kindlesparker went
to Riley's office and told her that Cook could see her.
Instead of going to Cook's office, Riley called Cook and
told her that she had already reported the incident to
HUD's Indianapolis office and that she did not need to
speak with Cook. Cook did not tell Riley to come to her
office during their conversation, but she told Riley that
whenever she complained to the HUD office, “it cost
them money.” Dkt. No. 79-1 at 52.
same day, Cook sent an email to Morrow telling her that
“Riley is going to be suspended for
insubordination.” Dkt. No. 79-19 at 1. After Cook sent
the email to Morrow, she created a termination notice. Dkt.
No. 80 at 9; see also Dkt. No. 60-1 at 21
(containing metadata indicating that the termination document
was created thirty minutes after Cook's email to Morrow).
The document was modified the following afternoon, and Cook
signed it on Friday, May 9, 2014.
was absent from work on Thursday, May 8, 2014, and Friday,
May 9, 2014. She took an FMLA day on Thursday and used a
vacation day on Friday. See Dkt. No. 79-1 at 60
(Riley explaining that she understood she was allowed only
two days of medical leave per week according to her leave
certification and that she had already used one day earlier
that week, so she knew she had to use a vacation day for
Friday, May 9, 2014). Bellis and Morrow presented Riley with
the termination notice on Monday, May 12, 2014, when she
returned to work. The termination notice indicated that Riley
was terminated for “Lack of Cooperation/Teamwork,
” “Violation of KHA Rules of Conduct, ”
“Insubordination, ” and “Improper
Conduct.” Dkt. No. 79-20 at 1.
March 6, 2015, Riley, along with two additional plaintiffs,
filed suit in this Court, seeking legal and injunctive relief
for various federal law violations. Riley asserts several
■ Discrimination, retaliation, and failure to
accommodate claims under the Americans with Disabilities Act
■ Retaliation under Title VII of the Civil ...