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Robert v. City of South Bend

United States District Court, N.D. Indiana, Hammond Division

January 2, 2018

CITY OF SOUTH BEND, et al., Defendants.



         Theodore Robert was a police officer with the City of South Bend Police Department from November 2006 until he voluntary resigned on October 19, 2015, after being indicted on a federal criminal charge to which he ultimately pled guilty. Prior to his resignation, Robert voiced concerns about racial discrimination in the police department, and he filed several complaints with the EEOC. He also filed a federal lawsuit. He alleges that the police department retaliated against him because he filed those complaints and lawsuit. But because there was no material adverse employment action taken against him, his retaliation claims fails, and summary judgment will therefore be granted in favor of the defendants.


         Robert's tenure as a police officer with the South Bend Police Department started in November 2006. As early as 2010, Robert began complaining that he was being treated unfairly by the SBPD and that he had been the victim of discrimination. [DE 53-2 at 36.] Since 2012, Robert has filed a number of EEOC complaints, and he has written several letters. [DE 53-2 at 8-10.] On December 13, 2013, Robert filed a federal lawsuit alleging race discrimination when he was denied a promotion. [Case No. 2:13-cv-274 (filed Aug. 8, 2013).] That case remains pending before Judge Van Bokkelen. It's a mystery to me why Robert did not bring these claims in the prior lawsuit. The defendants moved to consolidate the two cases, but the Magistrate Judge denied that motion, finding that this lawsuit would be likely to delay the first one. [DE 46 in Case No. 2:13-cv-274.] As it turned out, this case has proceeded more expeditiously.

         Following the filing of that lawsuit, Robert continued to complain of discrimination and unfair treatment of black police officers, and he submitted a letter to the Board of Public Safety, the City's Human Resources Department and the office of the Mayor of South Bend. On June 10, 2014, he and other black officers in the SBPD presented four separate complaints requesting an investigation into their allegations of racial discrimination by the Mayor of South Bend and the police chief, Ronald Teachman. [DE 53-2 at 8-10.] According to Robert, a week later, on June 17, 2014, Robert and other officers made similar complaints to the Board of Public Safety during its monthly meeting. [DE 1 at 5.]

         On July 4, 2014, before reporting for the afternoon shift at the SBPD, Robert drove his SBPD-issued police car to the gym. On his way, he noticed trash in the street in front of a home on his block. According to Robert, he had called the City's Code Enforcement Department to file an ordinance violation complaint against his neighbor due to the large accumulation of trash on the neighbor's yard which had been there for over a week. Robert claims that he stopped his police car, pulled over to the curb, picked up the trash that had been in the street, and placed it in the yard. [DE 53-2 at 15-19.]

         Later that day, Sergeant James Wolff, a police officer with the SBPD, informed Robert that the neighbor had filed a complaint about an officer throwing trash in his yard. [DE 53-2 at 21.] According to Sergeant Wolff, the homeowner asked that a report be filed. [DE 53-4 at 2 ¶6.] Because Robert lived on the same street as the neighbor, matched the description of the suspect provided by the neighbor, and drove a SBPD-issued squad car with a number consistent with one of the digits provided by the neighbor, Sergeant Wolff spoke with Robert about the incident. [DE 53-2 at 2 ¶7.] Eventually, Robert admitted to Sergeant Wolff that he took the trash from the street and placed it in the neighbor's yard. [DE 53-2 at 22.] Despite the possibility that the conduct in question could be investigated as vandalism, ultimately, no criminal charges were ever filed against Robert.

         Because the conduct involved in the trash incident also potentially constituted police misconduct, an Internal Affairs file was opened. Captain Keith Schweizer was responsible for conducting the investigation into Robert's actions. Although Robert was off duty when then the trash incident occurred, Robert admits that because he was in his police vehicle at the time, he was subject to the rules and regulations set out in the police manual. [DE 53-2 at 7.] Captain Schweizer commenced his investigation into the trash incident and Robert responded by filing a complaint of his own - this one against Sergeant Wolff, the on scene officer who investigated the trash throwing incident. Captain Schweizer was assigned to investigate both the original complaint against Robert and the complaint Robert lodged against Sergeant Wolff for how he handled the underlying incident. [DE 53-2 at 30; DE 53-5 at 4 ¶14.] Captain Schweizer issued his opinion sustaining the allegations against Robert and exonerating Sergeant Wolff of any wrongdoing in the way he conducted the investigation. [DE 53-5 at 5 ¶¶16-18.] Robert was not actually disciplined following the trash investigations. [DE 53-2 at 41.] However, on March 13, 2015, about 8 months after the trash investigations, Police Chief Teachman referred Robert to the Board of Public Safety with a recommendation for discharge. According to Police Chief Teachman, this recommendation was based on Captain Schweizer's Internal Affairs investigation and Robert's numerous other episodes of misconduct. [DE 53-6 at 4 ¶13.] But Robert was not terminated.

         It does not appear that the Board of Public Safety ever took up the recommendation for discharge made by the police chief. It's not clear to me why. Instead, Robert resigned in October 2015. In May of that year, Robert had been indicted on a federal criminal charge to which he ultimately pled guilty. [Case No. 3:15-cr-42 (filed May 14, 2015).] The charge stemmed from a 2010 incident in which Robert seriously injured a person in his custody. In that federal criminal case, Robert admitted that he repeatedly pushed the victim against a wall with his arm across the victim's throat, and after the victim attempted to respond, Robert struck the victim across the face, causing a laceration that required multiple sutures. [DE 53-8 at 6.] Robert eventually resigned from the SBPD on October 19, 2015 and later pled guilty to the charge, rendering him a convicted felon and unemployable as a police officer.


         Summary judgment is proper if “there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine dispute about a material fact exists only “if 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). In making this determination, the Court construes “all facts and reasonable inferences from the record in the light most favorable to [ ] the non-moving party.” Moser v. Ind. Dep't of Corr., 406 F.3d 895, 900 (7th Cir. 2005).

         1. Title VII Retaliation

         Robert's first claim is a narrow one: he says that he was retaliated against, in violation of Title VII, when the SBPD conducted two investigations into the trash incident on July 4, 2014 - Sergeant Wolff's investigation of the citizen complaint and Captain Schweizer's Internal Affairs investigation. Claims of retaliation under Title VII are subject to the McDonnell Douglas burden-shifting analysis. Robert must first establish a prima facie case of retaliation, at which point the burden of production shifts to the City to come forward with a legitimate, non-retaliatory reason for its actions. If the City rebuts the prima facie case, then Robert has a chance to show that the City's proffered reasons are merely pretextual. McKenzie v. Ill. Dep't of Transp., 92 F.3d 473, 483 (7th Cir. 1996). To make out a prima facie case, Robert must show that: (1) he engaged in a statutorily protected activity; (2) he suffered a materially adverse employment action; and (3) a causal connection exists between the statutorily protected activity and the action taken. Id.

         The law in this Circuit has undergone a shift in recent years. In Ortiz v. Werner Enterprises, Inc., the Seventh Circuit abandoned the dichotomy of direct and indirect evidence previously used at summary judgment in employment discrimination cases and held that, the “sole question that matters” is “[w]hether a reasonable juror could conclude that [the plaintiff] would have kept his job if he had a different ethnicity, and everything else had remained the same.” 834 F.3d 760, 764 (7th Cir. 2016). The Court also jettisoned the “convincing mosaic” as a legal standard. Id. Rather, the Court held that all evidence should be considered together to understand the pattern it reveals. Id. The Court held that “district courts must stop separating ‘direct' from ‘indirect' evidence and proceeding as if they were subject to different legal standards.” Id. at 765. Despite the shift, the Court clarified that its decision did not concern the burden-shifting framework of McDonnell Douglas or any other burden-shifting ...

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