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Juillerat v. Town Council of Andrews

United States District Court, N.D. Indiana, Fort Wayne Division

June 21, 2018




         This matter comes before the Court on a Motion for Summary Judgment [ECF No. 56] filed by Defendants, the Town Council of Andrews, Indiana, John Harshbarger in his official capacity as a Town Council Member and his individual capacity, and Raymond Tackett in his official capacity as a Town Council Member and in his individual capacity. Plaintiff Van Juillerat filed his Complaint against the Defendants on March 24, 2015 [ECF No. 2] in state court, alleging violation of Indiana Code § 36-8-3-4, defamation, denial of due process and equal protection, violation of 42 U.S.C. § 1983, violation of the Fair Labor Standards Act (“FLSA”), and civil conspiracy. The Defendants removed this case to federal court [ECF No. 1] on April 27, 2015. On April 27, 2016, the Court granted in part [ECF No. 28] the Defendants' Motion to Dismiss [ECF No. 11], finding that the Plaintiff had failed to state a claim on which relief could be granted as to Count I, alleging violation of Indiana Code § 36-8-3-4, and Count VI, alleging civil conspiracy, based on the relevant statutes of limitation.

         On December 14, 2017, the Defendants filed a Motion for Summary Judgment [ECF No. 56] on the remainder of the Plaintiff's claims, Counts II-V. The Plaintiff responded [ECF No. 69] on June 1, 2018, and the Defendants replied [ECF No. 70] on June 15, 2018. The Defendants also filed a Motion for Sanctions [ECF No. 60] on February 8, 2018, regarding conduct by the Plaintiff's counsel that also forms the basis of one of the Defendants' summary judgment arguments. There has been no timely response to the Motion for Sanctions.


         The Plaintiff served as a deputy marshal for the Town of Andrews in 1988. Within a year, he was promoted to Town Marshal. From 2008 to 2009, the Plaintiff asserts that he incurred extra work as an “operation manager, ” for which he was not paid. In 2010, the Plaintiff received a raise and asserts that he was told that “it wasn't enough, but would help” to compensate him for the extra duties. The Plaintiff was relieved of these duties in 2012. In 2012, the Town Council awarded him “longevity pay, ” which consisted of a fixed percentage increase based upon the Plaintiff's salary for the year preceding the longevity pay period. The Plaintiff was the only employee to receive longevity pay as opposed to the annual pay raises that other town employees received. Effective January 1, 2013, the Council ceased the Plaintiff's longevity pay, reduced his salary by the amount he was receiving as longevity pay, and awarded him a 1% pay raise. This raise did not make up for the monetary loss of the longevity pay.

         On March 11, 2013, the Town Council of Andrews, Indiana consisted of three members: John Harshbarger, Raymond Tackett, and Mike Rohler. At a regular meeting on March 11, 2013, Harshbarger moved to demote the Plaintiff to his previous position as a deputy marshal. Tackett seconded the motion without discussion. Rohler objected to the motion and suggested that the Council conduct an “executive session” to review the alleged basis for the demotion. However, the Town's legal counsel did not believe such a session was proper because the action was not disciplinary in nature. Rohler requested additional time before putting the issue to a vote, and the Council decided to set a tentative date and time for an executive session. Instead of holding an executive session as scheduled, the Council held a special meeting on March 19, 2013, for the purpose of discussing potential re-assignments within the police department. At that meeting, Defendants Harshbarger and Tackett again voted to demote the Plaintiff to deputy marshal. Rohler voted not to demote the Plaintiff because he believed that he had insufficient documentation to make an informed decision. The Plaintiff was demoted at that time, but continued to receive the same pay.

         The Plaintiff asserts that, at the March 11, 2013, meeting, Harshbarger stated that the Plaintiff was “being insubordinate, that [he] was doing anything whenever [he] wanted, and that it was a detriment to the department, that it was interrupting the town's business . . . .' The Plaintiff also asserted that Harshbarger said that he “thought it was in the best interest of the town that [the Plaintiff] be demoted.” Defendant Harshbarger made similar statements with regard to the Plaintiff at the March 19, 2013, meeting.


         Summary judgment is proper where the evidence of record shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The moving party bears the initial burden of informing the Court of the basis for its motion and identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact. Id. at 323. The burden then shifts to the non-movant to “go beyond the pleadings” to cite evidence of a genuine factual dispute that precludes summary judgment. Id. at 324. “[A] court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial.” Waldridge v. Am. Heochst Corp., 24 F.3d 918, 920 (7th Cir. 1994). If the non-movant does not come forward with evidence that would reasonably permit the finder of fact to find in its favor on a material issue, then the Court must enter summary judgment against it. Id.


         A. Statute of Limitations for Counts II and III

         The Court turns first to the Defendants' primary argument, which asserts that the Plaintiff failed to file this lawsuit within the applicable statutes of limitation. The dispute lies in whether the Plaintiff actually mailed his Complaint before or after the expiration of these periods. The statute of limitations for Count II expired on March 11, 2015 and, for Count III, expired on March 19, 2015.

         Pursuant to Indiana Trial Rule 5, filing by registered or certified mail and by third-party commercial courier “shall be complete upon mailing or deposit.” Ind. Tr. R. 5(f). The Plaintiff argues that two separate envelopes, both containing the Complaint, were mailed on March 10, 2015, one day prior to the statute of limitations for Count II and nine days prior to the statute of limitations for Count III. Each of the envelopes contained tracking numbers, and the Plaintiff's counsel printed the shipping label through his account on However, records from Endicia submitted by the Defendants indicate that the shipping labels associated with the tracking numbers on the envelopes were not printed until March 24, 2015, and, therefore, the Defendants argue that the envelopes could not have been mailed on March 10, 2015. Records from the United States Postal Service (USPS) also indicate that these shipping labels were not created until March 24, 2015.

         In response to the Defendants' argument, the Plaintiff's counsel submitted an affidavit, affirming that he mailed the Complaint on March 10, 2015. (See Pl. Resp. to Def. Mot. to Dismiss Exh. 1, ECF No. 15-1.) The Plaintiff's counsel also submitted copies of the envelopes in question, which bear what appear to be postmarks of March 10, 2015. However, the Defendant submitted an affidavit from USPS worker Lisa Moore [ECF No. 56-6], who stated that she reviewed the envelopes and that “[t]he March 10, 2015 date in the upper right hand corner was not created by the USPS.” However, Ms. Moore offers nothing to explain how she knows the date was not created by USPS. Without any supporting ...

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