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Mitchell v. Muncie Community Schools

United States District Court, S.D. Indiana, Indianapolis Division

July 13, 2017

James E. Mitchell, Plaintiff,
Muncie Community Schools, Defendant.



         Pro 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.

         I. Standard of Review

         A 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. 56(e).

         In 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).

         On 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 Cir. 2010).

         "The 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.

         II. Evidentiary Issues

         Before 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.

         A. Motion to Include Exhibits

         Twelve 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.]

         MCS 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.]

         The 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.[1] 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.

         As to 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 17.

         B. Admissibility of Certain Evidence

         In its 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.

         Second, 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.

         Third, 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.

         III. Statement of Facts

         The 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).

         A. MCS Policies and Procedures MCS has adopted an anti-discrimination policy which provides:

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         B. Mr. Mitchell's Initial Employment With MCS - 2008-2009 School Year

         Mr. 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 Employee Handbook.

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         Just 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 at 3.]

         Numerous 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.]

         Ms. 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 15.]

         On June 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.]

         C. 2009-2010 School Year

         Mr. 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.]

         Additional 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 3-4.1
• 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 45-50.]
• 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 at 52-53.]
• 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.]

         D. 2010-2011 School Year

         MCS 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.]

         E. 2011-2012 School Year

         During 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.]

         In 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 states:

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 ...

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