United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
T. MOODY JUDGE
David Crane, Jr. (“Crane” or
“plaintiff”), brings this suit following the
termination of his employment with the Lake County
Sheriff's Department. (DE # 1.) Clark sued Lake County
Sheriff John Buncich (“Buncich”), the Board of
Commissioners of Lake County (the “Lake County
Board”), the Lake County Fraternal Order of
Police-Lodge # 125 (the “Fraternal Order”), and
John Does 1-10 (the “Does”). (Id.)
matter is now before the court on four motions for summary
judgment filed by the various defendants. (DE ## 36, 38, 41,
42.) Additionally, the Fraternal Order has filed a motion for
leave to file a late memorandum in support of its motion for
summary judgment (DE # 47), and Buncich has filed a motion to
strike (DE # 51). Plaintiff has responded to all of these
pending motions, except for the motion for summary judgment
brought by John Does 1-10. (See DE ## 48, 49, 50,
54.) Replies were filed by Buncich (DE ## 52, 55) and the
Lake County Board (DE # 53). The time has now passed for all
responses and replies to be filed, and these motions are ripe
for ruling. See N.D. Ind. L.R. 7-1, 56-1.
began his employment with the Lake County Sheriff's
Department on June 12, 1998. (DE # 1 ¶ 13.) Plaintiff
asserts he was later promoted to the position of corporal.
(Id. ¶ 14.)
Buncich was elected Sheriff of Lake County in 2012. However,
plaintiff says he openly supported another candidate for the
position, named Richard Liggen. (Id. ¶ 15.)
After Buncich was elected, plaintiff says he was demoted and
transferred to the transport division, where he was tasked
with transporting prisoners to jails. (DE # 1-1 at 6.)
Plaintiff alleges that he sought to return to the patrol
division, but Buncich did not grant the request.
(See DE # 1 ¶ 18.) Replying to plaintiff,
Buncich said “keep your mouth shut, do your job, and
avoid talking to [me] when you see me.” (Id.)
Plaintiff says his supervisor, Guy Mikulich, told plaintiff
that he “got exactly what he deserved” for
campaigning against Buncich. (Id. ¶ 19.)
was injured while on duty in February of 2014. (DE # 39 at
2.) Plaintiff asserts he sustained injuries to his neck which
required a rod to be placed from the C7 to C3 discs. (DE #
1-1 at 6.) Plaintiff began taking sick leave due to his
injuries. (DE # 1 ¶ 26.) In December 2014, he requested
an extension of sick leave. (DE # 39 at 2.) However,
according to plaintiff, this request for extension was denied
and, instead, his employment was terminated. (DE ## 1
¶¶ 28-29; 1-1 at 7.) According to plaintiff, this
termination was executed by the Lake County Sheriff's
Department through its “Merit Board.” (DE # 1-1
was placed on a disability retirement pension on January 29,
2015. (DE # 40-3.) However, at a hearing before the
“Pension Board” on March 12, 2015, plaintiff
asserted that he wished to continue his employment at the
Sheriff's Department. (DE # 1 ¶ 30.) Nevertheless,
plaintiff says he began receiving pension benefits in April
2015. (DE # 1-1 at 7.)
on these events, plaintiff filed a charge of discrimination
with the Equal Employment Opportunity Commission (the
“EEOC”) on January 25, 2016. (DE # 1 ¶ 11.)
The charge states the last date of discrimination was March,
11, 2015. (DE # 40-4.) Plaintiff's charge was dismissed
by the EEOC as untimely, on April 21, 2016. (DE # 40-5.)
initiated his case in this court by filing a verified
complaint on July 14, 2016, against Buncich, the Lake County
Board, the Fraternal Order, and John Does 1-10. (DE # 1.)
Plaintiff alleges seven causes of action: (1) violation of
the Americans with Disabilities Act (the “ADA”),
(2) wrongful termination, (3) infliction of emotional
distress, (4) violation of the Rehabilitation Act of 1973,
(5) second violation of the ADA, (6) violation of 5 U.S.C.
§ 1502, and (7) breach of contract. (DE # 1 at 7-11.)
Discovery has been completed in this case, and defendants
have moved for summary judgment on all claims. The court will
now address the pending motions.
Rule of Civil Procedure 56 requires the entry of summary
judgment, after adequate time for discovery, against a party
“who fails to make a showing sufficient to establish
the existence of an element essential to that party's
case, and on which that party will bear the burden of proof
at trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). “[S]ummary judgment is appropriate-in
fact, is mandated-where there are no disputed issues of
material fact and the movant must prevail as a matter of law.
In other words, the record must reveal that no reasonable
jury could find for the non-moving party.” Dempsey
v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d
832, 836 (7th Cir. 1994) (internal citations and quotation
moving party bears the initial burden of demonstrating that
these requirements have been met. Carmichael v. Village
of Palatine, Ill., 605 F.3d 451, 460 (7th Cir. 2010).
“[T]he burden on the moving party may be discharged by
‘showing'-that is, pointing out to the district
court-that there is an absence of evidence to support the
nonmoving party's case.” Celotex, 477 U.S.
at 325. Once the moving party has met his burden, the
non-moving party must identify specific facts establishing
that there is a genuine issue of fact for trial. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986);
Palmer v. Marion County, 327 F.3d 588, 595 (7th Cir.
2003) (citing Celotex, 477 U.S. at 324). In doing
so, the non-moving party cannot rest on the pleadings alone,
but must present fresh proof in support of its position.
Anderson, 477 U.S. at 248; Donovan v. City of
Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994). In viewing
the facts presented on a motion for summary judgment, the
court must construe all facts in a light most favorable to
the non-moving party and draw all reasonable inferences in
favor of that party. Chmiel v. JC Penney Life Ins.
Co., 158 F.3d 966 (7th Cir. 1998).
Motion to Strike (DE # 51)
the motion to strike is the most recently filed of
defendants' motions, the court will address it first, due
to the questions it raises regarding the sufficiency of
plaintiff's response briefs and of the record before the
presents three arguments in the motion to strike. First,
Buncich asserts plaintiff has failed to comply with Northern
District of Indiana Local Rule 56-1(b)(2) in his response to
Buncich's motion for summary judgment. (DE # 51 at 2.)
That rule states that a response brief to a motion for
summary judgment-or its appendix- “must include a
section labeled ‘Statement of Genuine Disputes'
that identifies the material facts that the party contends
are genuinely disputed so as to make a trial
necessary.” N.D. Ind. L.R. 56-1(b)(2).
is correct that plaintiff has failed to include such a
section in his response to Buncich's motion for summary
judgment. (See DE # 49.) In fact plaintiff has not
included a statement of genuine disputes in his response to
any of the pending motions for summary judgment. Instead he
includes a “Statement of Relevant Facts” in each
response. (See e.g., DE # 49 at 1-3.) Buncich argues
that the court should strike plaintiff's Statement of
Relevant Facts and find that Buncich's statement of facts
is undisputed. (DE # 51 at 2.)
plaintiff has not strictly complied with the local rules,
this does not require the court to strike his factual
statements. Rather, “it is clear that the decision
whether to apply the rule strictly or to overlook any
transgression is one left to the district court's
discretion.” Stevo v. Frasor, 662 F.3d 880,
887 (7th Cir. 2011) (affirming a district court's
decision to consider a defendant's summary judgment
motion although it did not comply strictly with all formal
requirements of the local rule).
case at hand, plaintiff has presented a factual statement in
his response brief which outlines the relevant facts of the
case from his perspective. It may not be perfect compliance,
but local rules are “not intended to provide a maze of
technical traps to complicate and delay litigation without
advancing merits.” Stevo, 662 F.3d at 887.
Therefore, the court will not strike plaintiff's
Statement of Relevant Facts, nor will it find that
Buncich's statement of facts are undisputed. The court
denies Buncich's first request in his motion to strike.
Buncich asks the court to strike plaintiff's Statement of
Relevant Facts because it does not comply with Federal Rule
of Civil Procedure 56(c)(1)(A). The rule states “[a]
party asserting that a fact . . . is genuinely disputed must
support the assertion by . . . citing to particular parts of
materials in the record.” Fed.R.Civ.P. 56(c)(1)(A). The
rule goes on the say that affidavits are acceptable materials
to support genuinely disputed facts. Id.
Statement of Relevant Facts does not contain citations to
particular materials in the record. However, it is clear to
the court that the Statement of Relevant Facts is largely a
restatement of the four-page fact section from
plaintiff's verified complaint (DE # 1 at 4-7) and of
plaintiff's two-page affidavit (DE # 1-1 at 6-7). Both of
those documents may properly support facts under Rule
56(c)(1)(A). Therefore, to the extent the Statement of
Relevant Facts derives from these two proper materials in the
record, the court will not strike it and the court denies
Buncich's second request from the motion to strike.
Nevertheless, in reviewing plaintiff's arguments in
response to the pending motions for summary judgment, the
court will consider that it is not the judge's role
“to comb through the record without a guide to find
disputes of material fact that preclude summary
judgment.” Conley-Eaglebear v. Miller, No.
16-3065, 2017 WL 7116973, at *1 (7th Cir. Sept. 26, 2017).
Buncich asks the court to disregard facts presented by
plaintiff which are not based on materials in the record. (DE
# 51 at 4.) The court agrees with Buncich that it must
“not speculate as to what is contained in a document
not in the record, and will consider only the actual record
before it.” United States v. Conservation Chem. Co.
of Ill., 785 F.Supp. 1215, 1230 (N.D. Ind. 1989).
Buncich argues plaintiff improperly references two items in
his response to Buncich's motion for summary judgment:
(1) a website
(DE # 49 at 2), and (2) a “Guide to Indiana County
Government, 2009 Edition, Chapter 5, p. 34” (DE # 49 at
9). Neither the website nor the guide are in the record.
plaintiff argues that references to these items should not be
stricken due to Local Rule 7-1(f). (DE # 54 at 7.) However,
Local Rule 7-1(f) is not relevant to this discussion. It
pertains to decisions, statutes, and regulations that are not
available electronically. See N.D. Ind. L.R. 7-1(f).
The truly relevant Local Rule is 56-1(b) which requires a
party opposing a motion for summary judgment to file
“any materials that the party contends raise a genuine
dispute.” N.D. Ind. L.R. 56-1(b)(1)(B).
the court will only consider materials in the record, and
Buncich's motion to strike is granted in part. The court
will not consider the website or the guide in ruling on the
motions for summary judgment and strikes any reference to
them from plaintiff's responses.
Motion for Summary Judgment by John Does 1-10 (DE # 36)
complaint, plaintiff states “it is believed that
various John Does 1-10 participated in concert with Defendant
Buncich in facilitating the violations of the American[s]
with Disabilities Act resulting in the injuries suffered by
Plaintiff and in the violations of 5 U.S.C. §
1502.” (DE # 1 ¶ 10.) He makes no further
allegations regarding these unnamed defendants.
Does 1-10 move for summary judgment on any claims against
them. (DE # 36.) They argue that claims against unnamed
parties are improper in federal court. (DE # 37 at 6.)
Plaintiff did not respond ...