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Daza v. State

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

August 31, 2018

Peter Daza, Plaintiff,
State of Indiana, Russell Fowler, Nina Daniel, and Valerie Cockrum, Defendants.


          Hon. Jane Magnus-Stinson, Chief Judge.

         Plaintiff 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, [1] 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.]


         Motion to Strike Mr. Daza's Surreply

         Before 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.

         Mr. 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.]

         In 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.]

         Local 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 of evidence.


         Motion for Summary Judgment

         A. 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. 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. 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 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 Cir. 2010).

         B. Evidentiary Issues

         Before 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.

         First, 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.

         Second, 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.

         Third, 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.

         Fourth, 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.

         Fifth, 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 Summary Judgment.

         Sixth, 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.

         Seventh, 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.

         Finally, 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.

         C. Statement of Facts

         The 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).

         1. 1993-2010

         Mr. 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 2.]

         In 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.]

         2. 2011: Mr. Daza Complains Regarding Treatment of Terry Goff

         In 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.]

         On 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 Rusty….
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.][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.]

         On 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 in part:

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.]

         Ms. Cockrum responded:

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.]

         On 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.]

         Mr. 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 commendable…..
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.]

         In 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 7.]

         3. 2012-2013: Mr. Daza is Disciplined for Complaining About Phone Policy

         In May 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, especially supervisors.

[Filing No. 72-26.] The Written Reprimand is signed by Mr. Daza.[3]

         In 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. 72-25.]

         In 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 (emphasis omitted).]

         Mr. 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.]

         4. 2014: Mr. Daza Defends Mr. Goff's Refusal to Plow Snow Due to Illness

         In 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.]

         Ms. 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 Reprimand).
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 feeling.

[Filing No. 72-29 at 1-2.]

         Mr. 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.]

         Later that same day, Human Resources Manager Nina Daniel emailed Jeff Sullivan[4] 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 support.
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 ...

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