United States District Court, S.D. Indiana, Indianapolis Division
ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
MCVICKER LYNCH UNITED STATES MAGISTRATE JUDGE
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 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.
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
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).
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).
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.”)
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.
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.
Statements Without Evidentiary Support
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.
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.
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).
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).
third, fourth, and fifth assertions are variations of each
(a) “I was told that if I didn't sign the agreement
I would be terminated.” (O'Brien Aff., ¶ 9,
(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., ...