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O'Brien v. City of Frankfort

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

September 26, 2018

KEVIN O'BRIEN, Plaintiff,
v.
CITY OF FRANKFORT, CHRIS L. McBARNES, individually and in his official capacity as a member of the Frankfort Safety Board, KENNY ESTES, individually and in his official capacity as a member of the Frankfort Safety Board, JIM SIGFRIED, individually and in his official capacity as a member of the Frankfort Safety Board, and TROY BACON, individually and in his official capacity as Chief of Police of the City of Frankfort, Defendants.

          ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

          DEBRA MCVICKER LYNCH UNITED STATES MAGISTRATE JUDGE

         Introduction

         Plaintiff Kevin O'Brien was a police sergeant on the City of Frankfort Police Department, and had been an officer for about twenty years. As will be described later in more detail, Sergeant O'Brien faced potential disciplinary action after an investigation of certain of his conduct. He hired counsel, and eventually signed a written agreement under which he agreed to retire from the police department. The agreement contains a provision that Mr. O'Brien “waives any right he has under Ind. Code § 36-8-3-4 to a hearing on said disciplinary charges.” This statute is known as Indiana's Tenure Act. In this lawsuit, Mr. O'Brien contends that the City, its Chief of Police, and members of its Safety Board[1] are liable because they did not properly provide him with a hearing or information about his rights to a hearing, and because he allegedly was coerced into retirement by the threat of termination. He contends that the defendants' actions deprived him of his federal due process rights and his due process rights under Indiana's Tenure Act, Ind. Code § 36-8-3-4. He also contends that the Tenure Act is a contract, the violation of which gives rise to an independent cause of action for breach of contract.

         The parties have filed cross-motions for summary judgment. The defendants seek summary judgment on all claims. Mr. O'Brien seeks summary judgment as to liability on all claims, although in his response to the defendants' summary judgment motion, he has (1) voluntarily abandoned his claims against defendants Troy Bacon (the Mayor) and Jim Sigfried (a member of the Frankfort Safety Board), in their individual and official capacities and (2) conceded that he is not pursuing any state law tort claims. The court therefore GRANTS summary judgment in favor of Messrs. Bacon and Sigfried without further analysis, and it will not address the defendants' arguments that any tort law claims are barred because a statutory tort claims notice was never sent.

         Summary Judgment Standard

         Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A “material fact” is one that “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Disputes about irrelevant facts do not matter; only factual disputes that might affect the outcome of the suit in light of the substantive law will prevent summary judgment. Id.; JPM, Inc. v. John Deere Indus. Equip. Co., 94 F.3d 270, 273 (7th Cir.1996). A genuine dispute as to a material fact exists if “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Liberty Lobby, 477 U.S. at 249. The party that bears the burden of proof on an issue may not rest on his pleadings, but must affirmatively demonstrate by designating specific facts on each essential element of his case “that there is a genuine issue of material fact that requires trial.” Hemsworth v. Quotesmith.Com, Inc., 476 F.3d 487, 490 (7th Cir. 2007).

         The court construes the evidence, and draws all reasonable inferences from the evidence, in the light most favorable to the nonmoving party. Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009). When evaluating cross-motions for summary judgment, therefore, the court construes the evidence and its reasonable inferences in favor of the party against which the particular motion under consideration is made. Metropolitan Life Ins. Co. v. Johnson, 297 F.3d 558, 562 (7th Cir. 2002). “[I]f genuine doubts remain and a reasonable fact-finder could find for the party opposing the motion, summary judgment is inappropriate.” Olayan v. Holder, 833 F.Supp.2d 1052, 1061 (S.D. Ind. 2011).

         Evidentiary Issues

         The defendants have raised evidentiary objections and move to strike certain “factual” assertions made by Mr. O'Brien on the grounds that they are either (a) not supported by the designated evidence, or are (b) inadmissible hearsay, and therefore may not be considered by the court. See Fed. R. Civ. P. 56(c) (requiring that a party who makes an assertion about the existence of a particular fact “must support the assertion” by citing to particular parts of the record on summary judgment, including deposition testimony or affidavits); MMG Financial v. Midwest Amusements Park, LLC, 630 F.3d 651, 656 (7th Cir. 2011) (“A party may not rely on inadmissible hearsay to avoid summary judgment.”)

         The court resolves the objections before analyzing the parties' substantive arguments because their resolution affects the scope of information the court can consider in deciding the parties' cross-motions. Indeed, as will be seen, a factual foundation central to Mr. O'Brien's case-the existence of alleged threats that coerced him to agree to retire-is not supported by any admissible evidence.

         The court first addresses the defendants' objection that certain fact assertions are not supported by the plaintiff's designated evidence; it will then address the alleged hearsay statements.

         A. Statements Without Evidentiary Support

         The defendants object to two statements. The first is that “O'Brien was told he was an ‘at-will' employee.” (Plaintiff's Brief at p. 1, Dkt. 43). There is no citation to any evidence to support this assertion; it therefore will not be considered by the court.

         The second assertion is that after the police department's internal investigation, Mr. O'Brien “was informed he was being given a three-day suspension without pay, and was being reduced from his former rank of Sergeant to that of Patrolman.” (Plaintiff's Brief, Dkt. 43, at p. 3). Although Mr. O'Brien cites affidavit testimony as his support for this assertion, the affidavit (and Mr. O'Brien's deposition testimony) do not actually provide that support. Mr. O'Brien's affidavit and deposition testimony make clear that no discipline was being imposed at that juncture-no suspension and no reduction in rank. Rather, the Chief of Police had expressed only that he was recommending a suspension and rank reduction. His affidavit states: “I was informed the Chief of Police was recommending that I be given a three-day suspension without pay, and reduced from Sergeant to Patrolman.” (O'Brien Aff. ¶ 2, Dkt. 44-5). Mr. O'Brien's deposition testimony confirms that a recommendation would be made, but that no disciplinary action had been taken. He testified:

Q. Did the chief tell you that you were being demoted or did he tell you that he was recommending that you be demoted?
A. That was going to be his recommendation.

(O'Brien Dep. Trans. at p. 102, Dkt. 40-1.) Because the assertion that Mr. O'Brien was told he was being suspended and his rank reduced is not supported by the record, it will not be considered by the court.

         B. Inadmissible Hearsay

         The defendants contend that four factual assertions are inadmissible hearsay. The court agrees and will not consider the following assertions on hearsay grounds.

1. “[F]ollowing the Frankfort Police Department's internal investigation, O'Brien was informed he was being given a three-day suspension without pay, and was being reduced from his former rank of Sergeant to that of Patrolman.” (Plaintiff's Brief, Dkt. 43, pp. 2-3).

         In addition to the fact that there is no evidentiary support for the assertion that Mr. O'Brien was told by anyone that he was being given certain disciplinary sanctions (as opposed to an intended recommendation of certain discipline, as addressed above), this statement is not attributed to any particular individual. Statements of unknown individuals are hearsay and cannot be brought under a hearsay exception for admissions of party opponents. Indianapolis Minority Contractors Assoc., Inc. v. Wiley, 1998 WL 1988826 at *17 (S.D. Ind. 1998), aff'd, 187 F.3d 743 (7th Cir. 1999).

         2. The third, fourth, and fifth assertions are variations of each other:

(a) “I was told that if I didn't sign the agreement I would be terminated.” (O'Brien Aff., ¶ 9, Dkt. 44-5).
(b) “[T]he day O'Brien was told about the proposed agreement, he was told that if he didn't sign the agreement he would be terminated.”
(Plaintiff's Brief at p.4, Dkt. 52, citing O'Brien Dep. Trans. at p. 64 and O'Brien Aff., ...

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