United States District Court, S.D. Indiana, Indianapolis Division
Jane Magnus-Stinson, Chief Judge.
Peter Daza, who is Hispanic, Native American, and over the
age of forty, worked as a geologist for the State of Indiana
Department of Transportation (“INDOT”)
from 1993 until his termination in 2015. Mr. Daza initiated
this lawsuit in 2017, alleging that he was discriminated
against based on his race, color, age, and “political
speech and association, ” and that his termination was
in retaliation for complaining about discrimination and
exercising his right to free speech and political
association. Defendants the State of Indiana, INDOT District
Deputy Commissioner Russell Fowler, INDOT District Human
Resources Manager Nina Daniel, and INDOT Technical Services
Director Valerie Cockrum,  have moved for summary judgment,
[Filing No. 46], and that motion is now ripe for the
Court's consideration. Also ripe for the Court's
consideration is Defendants' Motion to Strike Surreply
Arguments. [Filing No. 82.]
to Strike Mr. Daza's Surreply
analyzing the substantive arguments Defendants raise in their
Motion for Summary Judgment, the Court will consider
Defendants' Motion to Strike Surreply Arguments.
[Filing No. 82.] This is necessary because the
motion relates to the scope of information that the Court
could consider in deciding the Motion for Summary Judgment.
Daza filed a twenty-one page Surreply in Opposition to
Defendants' Motion for Summary Judgment on June 8, 2018.
[Filing No. 81.] Defendants move to strike portions
of the sur-reply, arguing that those portions do not address
Defendants' evidentiary objections but “merely
seek[ ] to respond to the Defendants'
arguments….” [Filing No. 82 at 2.] They
assert that the portions they seek to strike “rehash[ ]
arguments [Mr. Daza] has already made, or attempt[ ] to
further argue with points raised in the Defendants' reply
brief.” [Filing No. 82 at 2.]
response, Mr. Daza argues that the entire surreply addresses
Defendants' objections to the evidence he submitted in
response to the Motion for Summary Judgment, and so is
appropriate. [Filing No. 84 at 3-4.] Mr. Daza also
contends that Defendants' reply brief “contains new
arguments, and [he] has a right to file a Surreply to new
arguments.” [Filing No. 84 at 1.]
Rule 56-1(d) permits the filing of a surreply “only if
the movant cites new evidence in the reply or objects to the
admissibility of the evidence cited in the response.”
Defendants seek to strike pages 9 through 20 of Mr.
Daza's Surreply, and the Court finds that some of the
arguments contained in that section relate to Defendants'
admissibility objections while others do not. Accordingly,
the Court GRANTS IN PART and DENIES
IN PART Defendants' Motion to Strike Surreply
Arguments to the extent that it will only consider arguments
in Mr. Daza's Surreply that relate to the admissibility
for Summary Judgment
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. SeeFed. 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 fact-finder
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. Cv. 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
setting forth the facts relevant to the Motion for Summary
Judgment and analyzing the parties' substantive
arguments, the Court will consider the eight groups of
evidence to which Defendants object.
Defendants object to the “Summary of Events” and
the “Summary of Actions of Other Employees Showing Lack
of Judgment and Bringing the Agency Into Disrepute”
that Mr. Daza submitted in connection with his response
brief. [Filing No. 72-1; Filing No. 72-2.]
They argue that the documents are not admissible evidence,
lack any authentication, are based on hearsay, and are
“improper attempts to bypass the 35-page limit on
response briefs.” [Filing No. 78 at 2.] Mr.
Daza argues that these documents are proper under Fed.R.Evid.
1006, which allows a party to “use a summary, chart, or
calculation to prove the content of voluminous writings,
recordings, or photographs that cannot be conveniently
examined in court.” [Filing No. 81 at 2
(quoting Fed.R.Evid. 1006).] The Court will not consider the
summaries provided at Filing No. 72-1 and 72-2, as the
information contained in the summaries is also contained in
other exhibits provided by Mr. Daza. The summaries are not of
the type discussed in Rule 1006, but rather summarize other
evidence submitted by Mr. Daza in a way that is favorable to
Mr. Daza. The Court will consider the other evidence
submitted by Mr. Daza (and referenced in the summaries) as
appropriate, but will not consider the summaries themselves.
Defendants object to portions of Mr. Daza's Affidavit,
[Filing No. 72-3], as hearsay, outside Mr.
Daza's personal knowledge, contradictory to Mr.
Daza's emails or deposition testimony, and exceeding the
scope of lay testimony. The objection is well-taken, and the
Court will only consider portions of Mr. Daza's Affidavit
that it finds are not hearsay, that include statements within
Mr. Daza's personal knowledge, that do not contradict Mr.
Daza's emails or deposition testimony, and that do not
exceed the scope of lay testimony.
Defendants object to messages from nonparties, because they
are hearsay and lack authentication. [Filing No. 78 at
3-4 (objecting to Filing No. 72-5; Filing
No. 72-6; Filing No. 72-7; Filing No.
72-8; Filing No. 72-9; and Filing No.
72-10).] To the extent the messages discuss the basis
for Mr. Daza's termination and his contributions to
INDOT, Defendants object for lack of personal knowledge. Mr.
Daza responds that the messages are authenticated by Mr.
Daza's testimony that he personally received the
messages, and that they are offered to corroborate his
testimony that he was well-liked by other employees.
[Filing No. 81 at 6.] The Court finds that there are
authentication issues with the messages. For example, Filing
Nos. 72-5, 72-6, and 72-7 appear to be screenshots of text
messages, but Mr. Daza did not submit an affidavit
authenticating the messages, nor did he specify for the Court
where in his deposition testimony he testified regarding the
specific messages. In any event, the Court discusses the
messages to which Defendants object below, and concludes that
they are not relevant to the issue of whether Defendants
discriminated against Mr. Daza or retaliated against him.
Defendants object to several newspaper articles Mr. Daza
submits, [Filing No. 72-16; Filing No.
72-25; Filing No. 72-34; and Filing No.
72-35], because “newspaper articles offered for
the truth of what they report are inadmissible
hearsay.” [Filing No. 78 at 4 (citation and
quotation omitted).] Mr. Daza responds that the articles are
not offered for their truth, but rather “as evidence of
the disrepute that other employees brought to the
agency.” [Filing No. 81 at 6.] As with the
messages discussed above, the Court discusses below why the
newspaper articles - even if they are considered - do not
help to save Mr. Daza's claims from summary judgment.
Defendants object to certain documents, [Filing No.
72-23; Filing No. 72-32; Filing No.
72-68], that they argue Mr. Daza has used in violation
of a protective order entered in Mr. Daza's appeal of his
termination before the State Employees' Appeals
Commission (“SEAC”). [Filing No. 78
at 4 (referencing Filing No. 78-1).] The
protective order limits the use of personnel documents and
information relating to certain individuals to use in Mr.
Daza's appeal before the SEAC. [Filing No. 78-1 at
3.] Mr. Daza responds that this case “is a
continuation of” the SEAC proceeding. [Filing No.
81 at 7.] The Court has already found that Mr.
Daza's use of the documents does not violate the
protective order, [Filing No. 85], so considers the
documents in connection with Defendants' Motion for
Defendants object to the Facebook feed of a nonparty, Logan
Mort-Jones, because it has not been authenticated, is
inadmissible hearsay, and is irrelevant. [Filing No. 78
at 4.] Mr. Daza responds that Defendants do not specify
how the Facebook feed is “not authentic, ” nor do
they dispute that “the Facebook feed is that of
Mort-Jones.” [Filing No. 81 at 8.] The Court
agrees with Defendants, and finds that the Facebook feed
document is not authenticated and is inadmissible.
Defendants object to a Report from the Indiana Inspector
General regarding Troy Woodruff, [Filing No. 72-36],
because it “is impermissible character evidence, is
unfairly prejudicial to the Defendants, is inadmissible
hearsay, and is irrelevant.” [Filing No. 78 at
4-5.] Mr. Daza responds that the report “is
evidence that Woodruff brought disrepute to the agency, by
being investigated for possible criminal violations but was
not warned, counseled, disciplined, suspended, or terminated,
whereas Daza, who was not accused of any criminal violation,
was terminated for bringing disrepute to the agency, which
was a false allegation against him.” [Filing No. 81
at 8.] To the extent Mr. Daza relies upon Mr. Woodruff
as a comparator, the Court will consider this evidence below.
Defendants object to a document that purports to be the
Twitter feed of T.J. Brink, [Filing No. 72-73],
because it has not been authenticated, is inadmissible
hearsay, is unfairly prejudicial, and is irrelevant.
[Filing No. 78 at 5.] Mr. Daza argues that
Defendants do not make a specific objection as to how the
document is not authentic, do not dispute that it is the
Twitter feed of Mr. Brink, and do not make “any
specific effective objection.” [Filing No. 81 at
9.] As discussed below, the Court considers this
evidence but ultimately concludes that it is not relevant to
Mr. Daza's claims.
Statement of Facts
following factual background is set forth pursuant to the
standards detailed above. 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).
Daza began working as a geologist for INDOT in June 1993.
[Filing No. 72-11 at 4-5.] Along with his duties as
a geologist, Mr. Daza was the supervisor of the Independent
Assurance Program, which is a federally-mandated program that
requires certain qualifications for individuals to conduct
testing of construction materials. [Filing No. 72-11 at
4.] In March 2006, Mr. Daza's position was
reclassified to a Geologist 2 and he received a 15% salary
increase. [Filing No. 72-3 at 2.] Mr. Daza's
supervisor told him at the time that the pay increase was due
to his excellent performance. [Filing No. 72-3 at
September 2009, former Republican Indiana State
Representative Troy Woodruff was appointed as District Deputy
Commissioner (“DDC”) of the Vincennes
District of INDOT where Mr. Daza worked. [Filing No. 72-3
at 4-5.] In August 2010, Mr. Woodruff was promoted to
INDOT Chief of Operations, and Russell Fowler, a personal
friend of Mr. Woodruff, was appointed as DDC of the Vincennes
District. [Filing No. 72-3 at 5.]
2011: Mr. Daza Complains Regarding Treatment of Terry
2011, Director Shane Spears told Mr. Daza to talk to an INDOT
employee that Mr. Daza supervised, Terry Goff, because
INDOT's Human Resources Manager (a Republican and the
wife of the Knox County Republican Party Chairperson) had
inquired regarding Mr. Goff's Facebook page and commented
that she had heard it contained political posts. [Filing
No. 72-4 at 1-2; Filing No. 72-11 at 39.]
August 9, 2011, Mr. Goff complained to INDOT Director Valerie
Cockrum regarding not receiving a promotion. [Filing No.
72-18.] Mr. Goff wrote in an email to Ms. Cockrum:
To no surprise, I was informed of the decision on filling the
ETS slot in our department. I feel that I need to meet with
Rusty to discuss a few things. Brent knows how I feel and I
wanted to follow a chain of command before talking to
On kind of the same note, I wanted to talk to you about the
actions of [one of the interviewers] during my interview. I
had already discussed this issue with [Mr. Daza] and decided
I would not say anything until after the selection was made.
He basically asked me to follow through you instead of
confronting her directly. During the interview, she was
texting on her phone. I asked Brent if he saw it and he did
not. She was sitting to my left and had her phone in her lap
where neither of you would have seen it. The problem with
that is that shows a total lack of respect and should have
never taken place. I went through the exact same thing when I
interviewed…for the ETS slot previous and again
something like this takes place.
I in no way want you to think that I am upset with your or
Brent. It just feels like I do an excellent job and keep
getting kicked in the face and it is really hard to keep
doing a good job.
[Filing No. 72-18 at 1-2.]
Ms. Cockrum responded:
Terry, I hear what you are saying about not being selected
for the position and I appreciate you following the chain of
command. No, I didn't see [the interviewer] texting
during the interview but will follow up on that. Thank you.
[Filing No. 72-18 at 1.]
August 14, 2011, Mr. Daza sent a lengthy email to Ms. Cockrum
regarding Mr. Goff not receiving the promotion for which he
had applied. [Filing No. 72-19.] Mr. Daza set forth
why he thought Mr. Goff was a good candidate, and why he was
the “logical and best choice” for a prior
promotion. [Filing No. 72-19 at 1.] He also
discussed his belief that Mr. Goff did not get the promotion,
and other past promotions, because he is a Democrat, stating
Now why is Terry so poisonous? Because he is a Democrat.
Terry was well connected in the Democrat party but what did
he get for it. Let's see, the Democrats were in power for
16 years and Terry got an entry level job 19 years ago,
that's it. No. promotions, no big raises. He's not
even the highest paid tech. As a matter-of-fact he is way
underpaid. I am not naïve. I have been in INDOT for 18
years. Politics has always been played but not really in
promotions in Testing, just entry level…. The only
other opportunity for Terry was the Prestressed/Steel
Supervisor job. Terry was the best choice. I know the man
picked has experience in the steel industry and will probably
be ok but the few promotions available to Testing
shouldn't be handed outside our Department if we have
suitable candidates from within and we had one excellent
candidate, the best in the Department. You can't go
around slapping our best tech in the face multiple times
(which you have done twice) and expect him to take it.
We're going to lose him or at least you will ruin him.
He'll stop caring or trying. You want Testing to run on a
skeleton crew. We can pull it off as long as you allow us to
put the right people in the right slots, but you guys
can't keep from interfering. And all because of one
reason, Terry's politics. Mark quit in part because of
this crap. Mark is a Republican and you guys couldn't
help but screw with him too.
[Filing No. 72-19 at 1-2.]
I will keep this to myself and won't forward unless you
want me to for some reason. I always appreciate your total
honesty Pete. And, your support for Terry is commendable.
[Filing No. 72-19 at 1.]
August 15, 2011, Mr. Goff emailed Mr. Fowler, DDC of the
Vincennes District, regarding not receiving the promotion for
which he had applied. [Filing No. 72-20 at 2-4.] Mr.
Goff outlined his qualifications and accomplishments while at
INDOT. Mr. Goff then wrote, in part:
My job performance has not been affected by the party holding
office. I have continued to educate myself and be an asset to
INDOT. Politics should not be the deciding factor when
promotions come up. And NO political party should be proud of
hiring or promoting under-qualified staff.
* * *
I am neither a woman, a person of color, American Indian or
any other minority but I am sure I am being discriminated
against because of my political affiliation.
I am certain I was the most qualified of the internal
applicants and I am 95% sure I was selected. So why would I
continue to be the BEST technician in our department when
being the best gets you absolutely no where (sic)? I ask you
this……Did our Civil service training mean
nothing? During the Training, it was stated that
“evaluations are heavily weighed when a promotion is
being considered”.. (sic) obviously the Vincennes
District is exempt from this.
[Filing No. 72-20 at 4.]
Fowler responded to Mr. Goff, stating:
I certainly understand disappointment when not being selected
for a position - many of us can relate to that. A common
misconception is that INDOT experience makes a candidate a
“shoe-in” for a position. In fact, other things
impact the decision: communication, team skills, personality,
attitude, capability, performance, etc…..
I respect the fact that you have done very well in department
ratings and pay for performance - that is
While I cannot speak specifically for my predecessors - as I
was not privy to the references in your e-mail - I have the
utmost confidence that they made the best decisions for the
agency at the time as required. Our focus is always to hire
well-rounded people who add value to the agency.
[Filing No. 72-20 at 2.] Mr. Fowler did not
investigate Mr. Goff's complaints of political
discrimination. [Filing No. 72-4 at 3.]
December 2011, Mr. Daza completed a performance appraisal for
Mr. Goff and gave him an overall rating of
“outstanding.” [Filing No. 72-11 at
7-8.] Shortly thereafter, Mr. Woodruff emailed Mr.
Fowler and Ms. Cockrum, among others, regarding Mr.
Goff's performance appraisal, and wrote “How can
you constantly complain about everything and be considered
an[ ] outstanding employee? Somebody needs this one explained
or changed.” [Filing No. 72-21 at 3.] Mr.
Fowler responded that he “questioned this one as well,
” and Mr. Woodruff wrote “An outstanding employee
needs to be outstanding in every way. I will leave it to you
guys to decide what his level should be, but it's not
outstanding and I would question if it should be exceeds
either.” [Filing No. 72-21 at 2.] Mr.
Goff's performance appraisal ultimately reflected an
overall rating of “Exceeds Expectations.”
[Filing No. 72-11 at 8; Filing No. 72-23 at
2012-2013: Mr. Daza is Disciplined for Complaining About
2012, Mr. Woodruff was promoted to Chief of Staff at INDOT.
[Filing No. 72-3 at 5.] ¶ 2013, due to heavy
construction on the I-69 corridor through the Vincennes
District, the District was especially busy. [Filing No.
49-21 at 2.] As a result, Mr. Fowler informed his
subordinates that anyone with an INDOT-issued cell phone
would be required to be available for phone calls after
regular business hours to ensure that construction could
continue without delays. [Filing No. 49-21 at 2.]
This was not an expectation that INDOT employees be on call
24/7. [Filing No. 49-24 at 5.] Mr. Daza complained
about the directive, and explained to employees that it was
not part of his job to work overtime or work on the weekends,
“like construction and emergency personnel did.”
[Filing No. 72-3 at 13-14.] About a week after Mr.
Daza made those statements, his supervisor at the time, Brent
Schmitt, asked him to answer calls after hours. [Filing
No. 72-3 at 13.] Mr. Daza ultimately complied and
answered calls after hours, for which he received no
additional compensation. [Filing No. 72-3 at 14.]
INDOT issued a Written Reprimand, in which Mr. Schmitt
described Mr. Daza's unacceptable behavior as follows:
On March 8th, 2013 Pete Daza and I sat down to
discuss comments that he made at the spring construction
conference for I-69. During the construction conference Mr.
Daza made the statement that he would not follow the
expectation of carrying his state issued cell phone after
hours, set forth by the Vincennes DDC Rusty Fowler. I
informed Mr. Daza that his expression of defiance in front of
the employees he supervises, the members of the construction
staff, and other directors did not exhibit the professional
and leadership qualities that are expected of a supervisor in
this department and agency. I informed Mr. Daza that the
expectation to have his cell phone on him for urgent matters
after hours was an expectation from both Rusty and I. Mr.
Daza then repeatedly informed me he would not follow the
expectation set forth by Mr. Fowler and that I could not make
him. This defiant and insubordinate behavior is not
acceptable nor does it reflect the core four principles that
all employees of this agency are expected to exhibit,
[Filing No. 72-26.] The Written Reprimand is signed
by Mr. Daza.
August 2013, the Indianapolis Star published a story
entitled “INDOT official benefited from his and his
family's sales of land along I-69 route, ” which
discusses Mr. Woodruff's sale of a piece of land to the
state as part of the I-69 expansion project. [Filing No.
December 2013, Mr. Daza was nominated for a Department
Leadership Award. [Filing No. 72-27 at 6.] Via
email, Ms. Cockrum confirmed for Mr. Fowler that Mr. Daza was
eligible for the Department Leadership Award even though he
had received a written reprimand. [Filing No. 72-27 at
4.] Mr. Fowler responded “Excellent. I concur with
Pete's contribution.” [Filing No. 72-27 at
4.] Mr. Fowler stated that Mr. Daza “is a sharp
guy & is a huge asset to us; he still needs some soft
skill tweaking.” [Filing No. 72-27 at 2
Daza's 2013 Performance Appraisal Report was
complimentary of his knowledge and work and reflected all
“meets” or “exceeds” expectations
ratings, but also noted that: (1) “Although Pete is
willing to lend a hand and work with others in and out of his
specific job duties, Pete often struggles to work as fiercely
or cooperate as well if the assignment is one that he does
not agree with or find necessary”; (2) “Pete
sometimes can and does allow his passion for his work to
detract from the very positive and forward thinking ideas
that he has. Pete always fulfills the needs of the customer
but could improve upon his method of delivery and
professionalism”; (3) “Most of the time Pete
openly supports changes, however on one occasion earlier in
the year Pete expressed dissatisfaction with a change that
was made in the wrong environment. This event was addressed
with a written counseling then a written reprimand and there
have been no issues since”; (4) “It has been
observed that during this review period that while being
capable of arriving at fact, data based solutions, Pete could
work on approving (sic) his ability to be objective, forward
thinking, and critical of others (sic) ideas and opinions
while remaining professional and respectful”; and (5)
“On at least two occasions this year I had discussions
with Pete about remaining professional [and] respectful when
dealing with colleagues.” [Filing No. 49-6.]
2014: Mr. Daza Defends Mr. Goff's Refusal to Plow Snow
Due to Illness
early March 2014, Mr. Schmitt emailed Mr. Daza regarding Mr.
Goff's refusal to come to work to help plow snow because
he had shingles. [Filing No. 72-29 at 3.] Mr. Daza
responded that Mr. Goff ultimately came in to plow, so would
not need a doctor's note, and that Mr. Goff “is
allowed one mandatory OT refusal in a six month period so he
is going to use it.” [Filing No. 72-29 at 3.]
Mr. Daza also emailed Ms. Cockrum and stated:
If someone has a medical reason they cannot plow and they
have a doctor's excuse how can a refusal be issued? If
you get two refusals disciplinary action is warranted. So if
Terry were to have the flu, let's say, and he was called
to plow again and couldn't they will issue a second
refusal and write him up? Valid medical reasons should not
subject the employee to refusals and consequently
disciplinary action. If you extrapolate this out he could
ultimately be fired if he continually was sick over a course
of a snow event. Is it our position that Terry should know
when a snow event is to occur, and since it is his duty to
plow, only get sick when the weather is good? How dare he
have an illness during snow season? Look at how we treat our
people. Maintenance is out of control.
[Filing No. 72-29 at 3.]
Cockrum responded that she would “find out what the
directive is on this today, ” and later emailed Mr.
Daza and wrote:
Yes, a doctor's excuse may not exclude an individual from
plowing snow. A doctor's excuse may not necessarily
exclude the individual from receiving a first notice of
refusal. However, a doctor's excuse could exclude an
individual from disciplinary action if his/her condition was
serious enough to warrant work restrictions which would
include snow plowing.
Although Terry received a corrective action form for his
first refusal, he will not receive a penalty (Written
Also, someone in upper management saw Terry at a ballgame in
Richmond Saturday so that is not helping the perception of
the situation because the thought is “if he could drive
on Saturday what happened on Sunday?” I know that may
be out of context as to actual events but that is the general
[Filing No. 72-29 at 1-2.]
Daza responded to Ms. Cockrum:
An illness can happen suddenly. Just because an individual is
fine on one day doesn't mean he is faking it if an
illness strikes the next. The last time he had a shingles
outbreak he had a rash for several days he commented on
before he finally went to the doctor. By the time he went the
rash had increased in severity and was quite painful so, to
address the comment below, you could have saw him out for
several days appearing ok then overnight he is incapacitated.
None of this is out of the realm of possibility and since no
one is a medical doctor within INDOT and therefore not
qualified to make such judgments, people's “general
feelings” should not play into any evaluation of the
situation when medical issues are concerned.
[Filing No. 72-29 at 1.]
that same day, Human Resources Manager Nina Daniel emailed
Jeff Sullivan regarding Mr. Daza. [Filing No.
72-30.] Ms. Daniel wrote that Brent Schmitt had
discussed with her several issues regarding Mr. Daza, most of
which were behavioral. [Filing No. 72-30.] She
stated that although Mr. Daza's job knowledge is
“one of the best in the state, ” “his
professionalism and interaction with [Mr. Schmitt] has
become…‘a cancer on the department.'”
[Filing No. 72-30.] Ms. Daniel wrote:
Brent feels that Pete tries to usurp his authority especially
with departmental employees. I think the back story is that
Pete was up for or wanted the position that Brent now holds.
Pete was not qualified because he does not have a[n]
engineer's license. Everyone agrees that Pete is more
knowledgeable than Brent in some areas, even Brent
acknowledges this. However, I find Brent to be very
personable, in tuned and onboard with where SPD and INDOT are
moving toward culturally. He's a smart young man that
will eventually grow into the position with the right
Yesterday Rusty [Fowler] asked me to sit in on a discussion
about Pete. Val Cockrum and Brent were also present. They are
all in agreement that something has to give. I ask if Pete
was salvageable and got a lukewarm response. Everyone seems
exhausted with the situation.
My take is if he is salvageable than we need a CTI meeting.
We need to set specific expectations about his behavior and
what that should look like. All three state that this has
been addressed with Pete and while his behavior seems to
improve for a few weeks it doesn't take long for it to
tank again. I then offer that they should just have a frank
discussion with Pete and ask if he is happy here. If he says
“Yes” than (sic) we set guidelines and
expectations for him to continue in his current position. If
he says “No” we ask why. If his reasons are
things we can help correct we make a plan, if not, we help
him form an exit strategy. All respond that sometimes Pete
will simply shutdown and not give any input. My understanding
is this has happened twice. I suggested that if that happens
we simpl[y] tell Pete that we are giving him an opportunity
to express his thoughts and that a decision will be made with
or without his input. We prefer he has input.
So, here's my/our question to you. If Pete is not happy
or if the final decision is that this position is not the
“right fit” does Pete have any options for moving
to another district? Currently Rusty is not interested in
having Pete remain here if he has to remove him from his
current job. What options are there?
Side note: I have very little on file discipline wise. I have
attached what I have which is indicative of a continued
pattern of behavior. Unfortunately the largest portion of ...