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Crane v. Buncich

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

September 17, 2018

DAVID CRANE, JR., Plaintiff,
JOHN BUNCICH, et al., Defendants.



         Plaintiff 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.)

         The 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.

         I. BACKGROUND[1]

         Plaintiff 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.)

         John 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.)

         Plaintiff 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 at 7.)

         Plaintiff 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.)

         Based 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.)

         Plaintiff 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.


         Federal 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 marks omitted).

         The 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).


         A. Motion to Strike (DE # 51)

         Although 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 court.

         Buncich 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).

         Buncich 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.)

         Although 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).

         In the 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.

         Second, 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.

         Plaintiff's 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).[2] 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).

         Lastly, 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).

         Specifically, 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.

         Still, 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).

         Accordingly, 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.

         B. Motion for Summary Judgment by John Does 1-10 (DE # 36)

         In the 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.

         John 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 ...

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