United States District Court, S.D. Indiana, Indianapolis Division
James E. Mitchell, Plaintiff,
Muncie Community Schools, Defendant.
JANE MAGNUS-STINSON, CHIEF JUDGE
se Plaintiff James Mitchell, who is African American,
worked as a custodian for Defendant Muncie Community Schools
("MCS") for a little over six years.
During his tenure, Mr. Mitchell was disciplined numerous
times for various reasons. In January 2015, after he was
involved in a heated argument with a co-worker, Mr.
Mitchell's employment was terminated. Subsequently, Mr.
Mitchell brought this lawsuit against MCS, alleging a claim
for race discrimination and a claim for retaliation based in
part on charges he filed with the Equal Employment
Opportunity Commission ("EEOC"). Mr. Mitchell moved
for summary judgment, [Filing No. 64], MCS
cross-moved for summary judgment, [Filing No. 65],
and both motions are now ripe for the Court's decision.
Standard of Review
motion for summary judgment asks the Court to find that a
trial is unnecessary because there is no genuine dispute as
to any material fact and, instead, the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P.
56(a). As the current version of Rule 56 makes clear, whether
a party asserts that a fact is undisputed or genuinely
disputed, the party must support the asserted fact by citing
to particular parts of the record, including depositions,
documents, or affidavits. Fed.R.Civ.P. 56(c)(1)(A). A party
can also support a fact by showing that the materials cited
do not establish the absence or presence of a genuine dispute
or that the adverse party cannot produce admissible evidence
to support the fact. Fed.R.Civ.P. 56(c)(1)(B). Affidavits or
declarations must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the
affiant is competent to testify on matters stated.
Fed.R.Civ.P. 56(c)(4). Failure to properly support a fact in
opposition to a movant's factual assertion can result in
the movant's fact being considered undisputed, and
potentially in the grant of summary judgment. Fed.R.Civ.P.
deciding a motion for summary judgment, the Court need only
consider disputed facts that are material to the decision. A
disputed fact is material if it might affect the outcome of
the suit under the governing law. Hampton v. Ford Motor
Co., 561 F.3d 709, 713 (7th Cir. 2009). In other words,
while there may be facts that are in dispute, summary
judgment is appropriate if those facts are not outcome
determinative. Harper v. Vigilant Ins. Co., 433 F.3d
521, 525 (7th Cir. 2005). Fact disputes that are irrelevant
to the legal question will not be considered. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
summary judgment, a party must show the Court what evidence
it has that would convince a trier of fact to accept its
version of the events. Johnson v. Cambridge Indus.,
325 F.3d 892, 901 (7th Cir. 2003). The moving party is
entitled to summary judgment if no reasonable factfinder
could return a verdict for the non-moving party. Nelson
v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The Court
views the record in the light most favorable to the
non-moving party and draws all reasonable inferences in that
party's favor. Darst v. Interstate Brands Corp.,
512 F.3d 903, 907 (7th Cir. 2008). It cannot weigh evidence
or make credibility determinations on summary judgment
because those tasks are left to the fact-finder.
O'Leary v. Accretive Health, Inc., 657 F.3d 625,
630 (7th Cir. 2011). The Court need only consider the cited
materials, Fed.R.Civ.P. 56(c)(3), and the Seventh Circuit
Court of Appeals has "repeatedly assured the district
courts that they are not required to scour every inch of the
record for evidence that is potentially relevant to the
summary judgment motion before them, " Johnson,
325 F.3d at 898. Any doubt as to the existence of a genuine
issue for trial is resolved against the moving party.
Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th
existence of cross-motions for summary judgment does not,
however, imply that there are no genuine issues of material
fact." R.J. Corman Derailment Servs., LLC v.
Int'l Union of Operating Engineers, 335 F.3d 643,
647 (7th Cir. 2003). Specifically, "[p]arties have
different burdens of proof with respect to particular facts,
different legal theories will have an effect on which facts
are material; and the process of taking the facts in the
light most favorable to the non-movant, first for one side
and then for the other, may highlight the point that neither
side has enough to prevail without a trial."
Id. at 648.
setting forth the facts relevant to the pending motions and
analyzing the parties' substantive arguments, the Court
will consider Mr. Mitchell's April 24, 2017 letter to the
Court including additional exhibits, which the Court treats
as a Motion to Include Exhibits With Summary Judgment
Response, [Filing No. 761, and MCS's objections to
certain evidence relied upon by Mr. Mitchell, [see Filing
No. 72 at 5-11]. This is necessary because Mr.
Mitchell's motion and MCS's objections relate to the
scope of information that the Court could consider in
deciding the Motions for Summary Judgment.
Motion to Include Exhibits
days after filing his response to MCS's Motion for
Summary Judgment, Mr. Mitchell submitted a letter to the
Court in which he stated that he "just noticed that I
still had some extra exhibits in my copies that didn't
get attached to my response. I am sending them now in hopes
that they will be considered with the other documents."
[Filing No. 16.] Mr. Mitchell submitted Exhibits 7,
9, 10, 11, 14, 16, 17, 23, and 24 with the letter.
[Filing No. 76-1.]
responds to Mr. Mitchell's letter - which the Court is
treating as a motion - by arguing that the exhibits should
not be considered because the deadline for Mr. Mitchell's
response to MCS's Motion for Summary Judgment had passed,
that the exhibits do not contain information that was
discovered after that deadline, and that Exhibit 9 lacks
proper foundation and is inadmissible hearsay. [Filing
No. 77 at 2-3.]
Court notes that two of the exhibits that are the subject of
Mr. Mitchell's motion have previously been submitted in
connection with other briefs on the Cross-Motions for Summary
Judgment, including Exhibit 14 (previously filed at
Filing No. 64-5 at 4 and Filing No. 74-1 at
8) and Exhibit 23 (previously filed at Filing No.
74-1 at 23). Mr. Mitchell's Motion to Include is
DENIED AS MOOT as to Exhibits 14 and 23. Exhibit 9
(handwritten notes), also included in the motion, is not
properly authenticated so it is inadmissible, and the Motion
to Include is DENIED as to that exhibit. Still other exhibits
are not relevant to Mr. Mitchell's claims, including
Exhibit 11 (a letter from Mr. Mitchell's former counsel
to Mr. Mitchell outlining his representation and fee
arrangement), Exhibit 16 (an email message from Mark Burkhart
to several individuals stating that Mr. Mitchell "has
received no medical treatment for his employment injury since
January 22, 2014" - Mr. Mitchell's claims in this
lawsuit do not relate to any injury), and Exhibit 24 (an
email message from MCS's counsel to the EEOC regarding
MCS's determination not to participate in a mediation).
Mr. Mitchell's motion is DENIED as to those exhibits.
the remaining exhibits, the Court notes that they were filed
after the deadline for Mr. Mitchell's response to
MCS's Motion for Summary Judgment had expired. Because
Mr. Mitchell is proceeding pro se, however, the
Court will provide some leniency as to the deadline for his
response brief and will consider the remaining exhibits.
See Patterson v. Brady, 131 F.R.D. 679, 683 (S.D.
Ind. 1990) ("In the Seventh Circuit the district courts
are required to be lenient with pro se litigants and
to ensure that justice is done on the merits rather than on
the basis of procedural technicalities wherever
possible"). The Court finds this particularly
appropriate since MCS only objected to those exhibits on
timeliness grounds, and did not argue that they are otherwise
inadmissible. Accordingly, the Court GRANTS the Motion to
Include, [Filing No. 76], as to Exhibits 7, 10, and
Admissibility of Certain Evidence
response to Mr. Mitchell's Motion for Summary Judgment,
MCS argues that certain evidence should not be considered by
the Court for several reasons. First, MCS argues that Mr.
Mitchell makes "bald, unverifiable statements" that
are not supported by record evidence. [Filing No. 72 at 5.1
The Court is well aware of the summary judgment standard, and
specifically of the principle that a party must support an
asserted fact by citing to particular parts of the record,
including depositions, documents, or affidavits. Fed.R.Civ.P.
56(c)(1)(A). The Court will only consider facts that are
supported by record evidence.
MCS contends that Mr. Mitchell does not cite with
particularity where to find certain information in the
record, and discusses information that is immaterial and
irrelevant. [Filing No. 72 at 9.1 The Court is under
no obligation to "scour every inch of the record for
evidence that is potentially relevant to the summary judgment
motion before them, " Johnson, 325 F.3d at 898,
and will not do so here. Further, the Court will only
consider facts that are material to the decision.
MCS argues that several of Mr. Mitchell's exhibits are
inadmissible hearsay and should not be considered.
[Filing No. 72 at 10-11.] Specifically, MCS objects
to certain handwritten notes on an exhibit containing a June
2, 2009 letter from Mr. Mitchell to Associate Superintendent
Burkhart, an April 16, 2010 letter from Mr. Mitchell to Tom
Jarvis, the Athletic Director at Central High School, an
April 13, 2013 letter from Mr. Mitchell titled "RE:
Performance Correction Notice April 11, 2013, " and an
October 17, 2012 memo from Lon Sloan, Director of Human
Resources at MCS, to Mr. Mitchell. [Filing No. 64-5;
Filing No. 64-8.] Because MCS acknowledges that
these documents "reside[ ] in Mr. Mitchell's
personnel file, " [Filing No. 72 at 10-11], the
Court will consider the exhibits, but will not consider the
handwritten notes on the exhibits. MCS has provided a
Declaration from DiLynn Phelps, Interim Director of Human
Resources at MCS, which states that the letters and memos MCS
has in Mr. Mitchell's personnel file do not contain the
handwritten notes that appear on the versions of those
documents Mr. Mitchell filed with his Motion for Summary
Judgment. [See Filing No. 71-6 at 2.] Because Mr.
Mitchell has not authenticated the versions of the documents
he filed with handwritten notes, the Court will not consider
the handwritten notes. It will, however, consider the
documents that appear in Mr. Mitchell's personnel file at
MCS. MCS also objects to the admissibility of handwritten
notes purportedly made by Mr. Mitchell on June 9, 2010 and
June 14, 2010, [Filing No. 64-7]. Because Mr.
Mitchell has not provided any authentication for these
handwritten notes, the Court cannot discern whether they were
notes made by him or some other individual. See Fed.
R. Evid. 901(a) ("To satisfy the requirement of
authenticating or identifying an item of evidence, the
proponent must produce evidence sufficient to support a
finding that the item is what the proponent claims it
is"). Accordingly, the Court will not consider Mr.
Mitchell's exhibit at Filing No. 64-7 because it
is not properly authenticated.
Statement of Facts
following factual background is set forth pursuant to the
standards detailed above, and in light of the Court's
evidentiary rulings. The facts stated are not necessarily
objectively true, but as the summary judgment standard
requires, the undisputed facts and the disputed evidence are
presented in the light most favorable to "the party
against whom the motion under consideration is made."
Premcor USA, Inc. v. American Home Assurance Co.,
400 F.3d 523, 526-27 (7th Cir. 2005).
Policies and Procedures MCS has adopted an
anti-discrimination policy which provides:
Mitchell's Initial Employment With MCS - 2008-2009 School
Mitchell began working as a custodian for MCS, assigned to
Central High School, on December 10, 2008. [Filing No.
65-1 at 7.] His direct supervisor was Joseph Martinez.
[Filing No. 65-4 at 14-15.] Shortly after being
hired, Mr. Mitchell signed an Acknowledgement of Receipt of
over a month after Mr. Mitchell was hired, Central High
School Principal Chris Smith and Assistant Principal Suzanne
Crump met with Mr. Mitchell about "concerns that were
brought to [their] attention concerning overtime and whether
or not [Mr. Mitchell] really wanted to work in this
building." [Filing No. 65-1 at 10.] Mr. Smith
and Ms. Crump also discussed with Mr. Mitchell a report that
Mr. Mitchell wanted to be transferred to another building,
and "concern about his willingness to help cover an area
that was open." [Filing No. 65-1 at 10.1 Ms.
Crump met again with Mr. Mitchell on February 23, 2009, and
told him that if his work was not satisfactory, "it
would reflect on [his] job performance." [Filing No.
65-1 at 11.1 John Hill, one of Mr. Mitchell's fellow
custodians, stated in a Declaration that two other custodians
"trashed [Mr. Mitchell's] area that he cleaned
during overtime that caused him to get written up by Suzanne
Crump in the early months of 2009." [Filing No. 75-1
other concerns arose during the 2008-2009 school year that
Ms. Crump documented, including: that Mr. Mitchell told a
staff member "this is where I hang out on days like
this" in reference to the faculty workout room; that Mr.
Mitchell was seen in the faculty workout room watching
television with his shoes off and "did not do trash or
restrooms [like] he was sup-pose[d] to do on Sunday the
8th during his overtime hours"; that math
teachers complained that their white boards had not been
cleaned, which was Mr. Mitchell's responsibility; and
that Mr. Mitchell did not complete numerous tasks he was
supposed to complete during a Sunday that he was working
overtime. [Filing No. 65-1 at 10-12.]
Crump wrote Mr. Mitchell a Letter of Reprimand on June 1,
2009, which outlined several tasks Mr. Mitchell had failed to
complete and stated "[f]uture violations of this matter
on your part may lead to further disciplinary action up to
and including dismissal." [Filing No. 65-1 at
9.] Mr. Mitchell signed the Letter of Reprimand,
acknowledging receipt. [Filing No. 65-1 at 9.] Also
on June 1, 2009, Ms. Crump completed a Custodial/Maintenance
Staff Evaluation Form indicating that Mr. Mitchell received a
"POOR" rating in several categories, including
attitude toward the work, personal improvement in the work,
reliability, accepts full responsibility for the job,
cooperates with maintenance personnel, uses spare time in
doing needed work, performs housekeeping duties that are not
on daily schedule, and care for the security and protection
of the building. [Filing No. 65-1 at 13-14.1 Mr.
Mitchell did not receive any "SUPERIOR" ratings,
and only a few "GOOD" ratings - for dress, personal
cleanliness, and keeps regular assigned working hours.
[Filing No. 65-1 at 13-14.] He received an
"AVERAGE" rating in the remainder of the
categories. [Filing No. 65-1 at 13-14.1 At the end
of the 2008-2009 school year, MCS informed Mr. Mitchell that
"due to your excessive absences for 08/09, your
reappointment for 09/10 is being approved contingent on
improvement in your attendance." [Filing No. 65-1 at
2, 2009, Mr. Mitchell wrote a detailed letter to Associate
Superintendent Burkhart in which he disputed many of the
statements in his Letter of Reprimand and Evaluation Form.
[Filing No. 64-5.] For example, Mr. Mitchell stated
that he cleaned the gym on May 31, 2009 (a Sunday that he
worked overtime, on which Ms. Crump claimed he did not
complete numerous assigned tasks), but did not push the
bleachers back or put down the basketball goals because he
did not know how to do it and had not been trained to do so.
[Filing No. 64-5 at 1.] Mr. Mitchell expressed that
he was upset with his negative evaluation, had not received
proper training, and had "been harassed by certain
individuals which has worked it's (sic) way to other
co-workers and to the front office and I don't like it
one bit." [Filing No. 64-5 at 2.]
2009-2010 School Year
Mitchell was again assigned to Central High School for the
2009-2010 school year. [Filing No. 65-1 at 16.] On April 8,
2010, Tom Jarvis, the Athletic Director at Central High
School, and Joe Martinez met with Mr. Mitchell at Mr.
Jarvis' request. [Filing No. 65-1 at 17-20.] Mr. Jarvis
gave Mr. Mitchell a custodial area inspection report, which
reflected that Mr. Jarvis was not pleased with Mr.
Mitchell's work. [Filing No. 65-1 at 17.] Mr. Mitchell
became upset, and said "p*** this, " "P**
you!, " and "I'm going to lose my temper and
you don't want to see me lose my temper." [Filing
No. 65-1 at 19.] Mr. Jarvis then showed Mr. Mitchell the
areas he had not cleaned, and Mr. Mitchell made excuses.
[Filing No. 65-1 at 19.] Mr. Martinez informed Mr. Mitchell
at the same meeting that Mr. Martinez would be issuing a
Performance Correction Notice because Mr. Mitchell was
clocking in for his shift early and leaving early, despite
warnings not to do so. [Filing No. 65-1 at 17-22.] Mr.
Mitchell again became upset and said "F*** you!"
and "I'm going to get you!" in response.
[Filing No. 65-1 at 19.]
disciplinary incidents took place during the 2009-2010 school
year, which both MCS and Mr. Mitchell documented:
• On April 13, 2010, Mr. Jarvis and Mr. Martinez met
with Mr. Mitchell to give him the Performance Correction
Notice and his annual evaluation. Mr. Mitchell became upset,
defensive, and made excuses for the appearance of his work
area. Mr. Jarvis told Mr. Mitchell that he had to do a better
job communicating with co-workers, and Mr. Mitchell admitted
that he did not call the appropriate person when absent, as
required. [Filing No. 65-1 at 20; Filing No.
65-1 at 35-37.]
• An April 16, 2010 inspection of Mr. Mitchell's
area revealed that it was dirty and some sections had trash
on the floor. [Filing No. 65-1 at 38-44; Filing
No. 65-1 at 53.1
• On April 16, 2010, Mr. Mitchell responded to his April
13, 2010 Performance Correction Notice and evaluation,
stating that he felt the evaluation was "unfair"
because the area he was assigned "was already in bad
shape and now I'm expected to work miracles."
[Filing No. 64-5 at 3.] Mr. Mitchell stated that no
one ever gave him specific instructions regarding his area,
that he did not have a key to the auditorium dressing rooms
so could not clean them, that the bathroom floors are in bad
shape and all he can do is mop them, that he gets along with
everyone but "don't take any crap from anybody
regardless who it is, " that "if my addressing
certain issues offends some people then that's too bad,
" that there was a general lack of communication, and
that he has clocked in and out early and was "using time
management" and if that "is a violation then so be
it." [Filing No. 64-5 at 3.1
• In April 2010, Paul Dytmire, another MCS custodian who
worked with Mr. Mitchell at Central High School, documented
his interactions with Mr. Mitchell. This documentation
revealed that: in June 2009, Mr. Mitchell called Mr. Dytmire
and another co-worker a "motherf***er" and said
that he would "[f]*** everybody that worked here";
in March 2010, Mr. Dytmire told Mr. Mitchell that they were
not supposed to clock in early, and Mr. Mitchell responded by
saying "f*** Joe [Martinez]"; Mr. Dytmire referred
to other situations where Mr. Mitchell had sworn about or
threatened other employees. [Filing No. 65-2 at
• Also in April 2010, Dan Justice, the Supervisor of
Custodial and Maintenance Services at MCS, set forth numerous
occasions in which Mr. Mitchell altered his work shift
without supervisor permission. [Filing No. 65-1 at
• On May 6, 2010, Lon Sloan, Director of Facilities at
MCS, wrote a memo to Associate Superintendent Burkhart
stating that Mr. Mitchell was not working to expectations or
giving adequate effort to clean his area, does not adhere to
employee rules, fails to comply with requests made by
supervisors, does not accept correction or direction from
supervisors, and has made threatening and aggressive
statements to his supervisors and co-workers. [Filing No.
65-1 at 51 ."I Shortly thereafter, on May 28, 2010,
Mr. Justice wrote to Mr. Sloan outlining several issues with
Mr. Mitchell's performance and recommending that MCS
terminate Mr. Mitchell's employment. [Filing No. 65-1
• On June 9, 2010, Mr. Justice and Mr. Martinez wrote a
memo to Associate Superintendent Burkhart detailing harassing
behavior that Mr. Mitchell exhibited toward fellow
custodians, including blocking their access to the time
clock; holding an open pocket knife; and saying he was
"going to hurt" another custodian, that he is
"not a person to 'F... with', " that he is
"about ready to snap, " and that he was going to
"hold everyone hostage at the time clock some day."
[Filing No. 65-1 at 54-55.] Mr. Hill, one of the Mr.
Mitchell's co-custodians, stated in a Declaration that he
knew Mr. Mitchell "did not have a knife at the time
clock because [he] was standing right next to [Mr.
Mitchell]...." [Filing No. 75-1 at 3]
• On June 17, 2010, Associate Superintendent Burkhart
sent Mr. Mitchell a letter outlining some immediate
expectations that MCS had set for Mr. Mitchell based on his
"troubling" job performance: (1) that he establish
himself as an excellent employee and co-worker at his new
assignment at Southside High School; (2) that he
"embrace and accept constructive criticism of [his]
work"; and (3) that he "avoid confrontation."
[Filing No. 65-1 at 56.]
2010-2011 School Year
assigned Mr. Mitchell to Southside High School for the
2010-2011 school year and, for a period, Mr. Mitchell's
job performance and attitude improved. [Filing No. 65-1
at 58-59.] Mr. Mitchell's annual evaluation
indicated improvement, [see, e.g., Filing No. 76-1 at
1-2], and Chuck Reynolds, Associate Principal at
Southside High School, requested that MCS reassign Mr.
Mitchell to that same school for the following school year,
[Filing No. 65-1 at 58-59]. Mr. Mitchell was
assigned five rooms in addition to the rooms that his
predecessor was in charge of cleaning and, although the
custodians would help each other with their work area, Mike
Pratt, Mr. Mitchell's fellow custodian, stated in a
Declaration that Mr. Martinez told him not to help Mr.
Mitchell. [Filing No. 75-3 at 3.]
2011-2012 School Year
the spring semester of the 2011-2012 school year, while still
assigned to Southside High School, Mr. Martinez documented a
meeting he had with Mr. Reynolds and Mr. Mitchell regarding
Mr. Mitchell's job performance. [Filing No. 65-1
at60.] Mr. Martinez noted that teachers had complained
that Mr. Mitchell was not cleaning his areas and was
retaliating against teachers who had complained about him by
placing balls of paper on their desk and, in one case, in a
teacher's cup. [Filing No. 65-1 at 60.] He
stated that Mr. Mitchell responded that he tries to do his
best, but that he is sometimes overwhelmed by the mess that
is left in some classrooms, and that he left the paper balls
on desks to show the teachers what he has to pick up on a
daily basis. [Filing No. 65-1 at 60.] He denied
placing anything in a teacher's cup. [Filing No. 65-1
at 60.] Mr. Mitchell stated that he would not leave any
paper balls in the future, and that he would try to do a
better job. [Filing No. 65-1 at 60.]
August 2012, Mr. Mitchell wrote a letter detailing a July 27,
2012 incident, although it is not clear from the document to
whom it was sent or if anyone at MCS received it. The letter
On Friday, July 27th 2012 me and my co-workers
were discussing the overtime draw and the present procedure
used. Some of us didn't agree with each other and it got
a little tense. After we split up I went one way with Jeff
Bell and ...