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Cosby v. The City Of Indianapolis

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

January 30, 2019

RICHARD COSBY, Plaintiff,
v.
THE CITY OF INDIANAPOLIS, INDIANAPOLIS METROPOLITAN POLICE DEPARTMENT, Defendants.

          Hon. Jane Magnus-Stinson, Chief Judge United States District Court

         ENTRY

         Plaintiff Richard Cosby, an African-American man, is a police officer with the Indianapolis Metropolitan Police Department (“the IMPD, ” which is a division of Defendant City of Indianapolis) who brought suit after receiving numerous suspensions for what he claims were pretextual covers for race discrimination. He also claims that, by repeatedly singling him out for unwarranted discipline, the IMPD has subjected him to a hostile work environment. But Officer Cosby's Title VII claims fail because the large portions of the lone exhibit he tendered-his own affidavit-fail to establish personal knowledge over the conclusions they assert and, more importantly, are the subject of legitimate yet uncontested evidentiary objections. Left almost solely with the facts as set forth by the IMPD, the Court concludes that Officer Cosby has not met his burden to show that a reasonable jury could find in his favor and therefore GRANTS the IMPD's Motion for Summary Judgment. [Filing No. 36.]

         I. Legal Standard

         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 suffice to defeat summary judgment. 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 factfinder 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.Civ.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).

         II. Evidentiary Objections

         The result in this case turns in part on the admissibility of large portions of Officer Cosby's affidavit, [Filing No. 43-1], the sole piece of evidence he offers to demonstrate a genuine issue of material fact. In his affidavit, Officer Cosby offers his version of the events that led to his suspensions as well as assertions regarding the conduct and discipline of other officers. The IMPD objects on foundation grounds to paragraphs 8, 28, 33, 34, 56, 65, and 88 and on hearsay grounds to paragraphs 78 through 84 of the affidavit. [Filing No. 45 at 3-4.] For the most part, the foundation objections argue that Officer Cosby has failed to provide evidence that he has personal knowledge of the facts he asserts. [Filing No. 45 at 3-4.] Officer Cosby did not file a surreply to respond to these objections.

         Unlike some other jurisdictions, the Southern District of Indiana's Local Rules “expressly permit[] surreply briefs to be filed as of right in this situation-to respond to evidentiary objections made in a reply brief.” Ennin v. CNH Indus. Am., LLC, 878 F.3d 590, 596 (7th Cir. 2017) (citing S.D. Ind. L.R. 56-1(d)); S.D. Ind. L.R. 56-1(d) (“A party opposing a summary judgment may file a surreply brief [where] the movant . . . objects to the admissibility of the evidence cited in the response.”). Local Rule 56-1(d) provides nonmovants with “a meaningful opportunity to be heard on . . . evidentiary issues, ” Ennin, 878 F.3d at 596 (internal quotation omitted), such that Mr. Johnson could have either responded to the merits of the IMPD's objections or addressed any shortcomings in his previous filings “with a supplemental affidavit or two, ” Cehovic-Dixneuf v. Wong, 895 F.3d 927, 932 (7th Cir. 2018). But where a party elects not to file a brief that is “permitted as a matter of right, ” the party “risk[s] waiver of any arguments it has neglected to raise.” Ennin, 878 F.3d at 596.

         Officer Cosby had the opportunity under Local Rule 56-1(d) to file a surreply to respond to IMPD's evidentiary objections and did not do so. “By not presenting his arguments to [this Court], he [has let IMPD's] objections to the evidence stand unopposed.” Id. at 569. The IMPD's foundation objections are facially meritorious. Federal Rule of Evidence 602 provides that “[a] witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” Officer Cosby provides no basis for his belief, in paragraph 8 of his affidavit, that “most officers wanted to take their lunch break around 2:00 p.m., ” and given that the officers are spread throughout their zones and districts, [cf.Filing No. 43-1 at 7 (averring that officers must be in their “district ready to take runs” at the start of their shifts)], it is far from obvious how he would know this information. The same is the case with paragraph 28, in which Officer Cosby avers that “Sergeant Wilson was a white officer who I felt did not like African-Americans.” [Filing No. 43-1 at 3.] What Officer Cosby feels about Sergeant Wilson is irrelevant, see, e.g., Boss v. Castro, 816 F.3d 910, 917 (7th Cir. 2016), and Officer Cosby provides no evidence (for example, personal observation of improper comments or conduct) to support the inference he actually wants the Court to draw-that Sergeant Wilson in fact does not like African-Americans and therefore discriminated against Officer Cosby. The same issues pervade the other portions of Officer Cosby's affidavit to which the IMPD objects on foundation grounds. In light of Officer Cosby's waiver in failing to respond to the IMPD's facially meritorious foundation objections, the Court SUSTAINS the IMPD's objections to the challenged portions of paragraphs 8, 28, 33, 34, 56, 65, and 88 of Officer Cosby's affidavit.

         Though Officer Cosby has also waived any response to the IMPD's hearsay objections, those objections lack the facial merit of the foundation objections. Out-of-court statements qualify as hearsay only when they are offered to “prove the truth of the matter asserted in the statement.” Fed.R.Evid. 801(c)(2). They are not hearsay when offered for any other purpose, such as to explain why someone acts or does not act a certain way. E.g., United States v. Sanchez, 32 F.3d 1002, 1005 (7th Cir. 1994) (affirming admission of out-of-court statement which was “not offered to prove the truth of the matter asserted, but only to prove why [the individual] acted as he did”). The out-of-court statements of a man who talked to Officer Cosby about his missing daughter are not offered to prove that the man's daughter was actually with her mother, that his daughter was not in danger, or that everything was fine, but instead are offered to explain why Officer Cosby responded the way he did to the call. [Filing No. 43-1 at 8.] They are therefore not hearsay under Rule 801(c)(2), and, despite Officer Cosby's waiver, the Court OVERRULES the IMPD's hearsay objections to paragraphs 78 through 84 of his affidavit.

         III. Background

         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).

         A. Officer Cosby's Employment Record

         In September 2000, Officer Cosby joined the Indianapolis Police Department which, following consolidation with the sheriff's police force, became the IMPD in January 2007.[1] [Filing No. 43-1 at 1]; see [Filing No. 38-3 at 1]; Indianapolis, Ind. Rev. Code of the Consol. City & Cnty. § 279-102 (hereinafter “Indianapolis Code”). After completing his training and probationary period, IMPD assigned Officer Cosby to the West District as a middle-shift patrol officer. [Filing No.43-1 at 1.] On January 1, 2005, Officer Cosby was transferred to a day-shift assignment in the Northwest District. [Filing No. 43-1 at 1.] In January 2011, Officer Cosby shifted to second roll call in the Northwest District. [Filing No. 38-3 at 2.] Officer Cosby transferred to late shift in July 2016. [SeeFiling No. 37 at 2 (IMPD's uncontested assertion of fact); Filing No. 43-1 at 8 (“On October 16, 2016, I was working the late shift . . . .”).]

         While the disciplinary procedures have changed during Officer Cosby's tenure with the IMPD, [see Filing No. 38-2 (General Order 3.18, implementing “disciplinary matrix” effective December 1, 2015)], throughout his tenure officer discipline has been subject to review by a Disciplinary Board of Captains. See, e.g., Indianapolis Code § 279-237(g); [Filing No. 38-4 (2002 findings from Indianapolis Police Department Board of Captains)]. The Disciplinary Board of Captains consists of three randomly selected captains who each serve a three-month term. Indianapolis Code § 279-237(j). The Board may hold a hearing on a charge of officer misconduct, and the officer may be represented by counsel and subpoena witnesses. Id. § 279-237(h). The Board also makes findings as to the disposition of any alleged rule violations and recommendations as to the appropriate sanction. Id. § 279-237(i). The chief of police reviews the Board's findings and recommendations and may concur in or reverse its decision. Id.

         1. February 2002 Suspension

         Officer Cosby's first disciplinary incident occurred on November 30, 2001, when he failed to locate and take a razor blade from a prisoner before turning the prisoner over to j ail staff. [Filing No. 38-4 at 1.] On January 14, 2002, the Disciplinary Board of Captains recommended that Officer Cosby receive a one-day suspension, [Filing No. 38-4 at 1], which was approved by Chief Jerry Barker on January 23, 2002, and imposed on February 10, 2002, [Filing No. 38-4 at 2-3]. Officer Cosby acknowledges that the incident “was a mistake that I made[, ] and I never disputed the discipline.” [Filing No. 43-1 at 1.]

         2. May 2014 Suspension

         In May 2014, Officer Cosby received a one-day disciplinary suspension after a message exchange with Sergeant Michael Jefferson. [Filing No. 38-5.] The Disciplinary Board of Captains report described the incident as follows:

On March 18, 2014, Sgt Michael Jefferson was checking unit status and noticed Officer Cosy had changed zone assignments. He inquired of hrm about the zone assignment change via the laptop computer with tha following questions and responses:
Sgt, Did you talk with a supervisor about changing your zone assignment A. I sure did before u came to the shift. It was 114's idea.
Sgt. It was his idea before I came to the shift?
A, Yep. I have been doiii it for awhile. The middle shift 10's car don't like me and I don't care for them. Sgt When I first came to the shift I noticed that But you stopped for a long. time. As far as I am concerned you need to stay on your assigned zone. I'll talk with Sgt Suesz and the Lt. to get their input. A, (almost two hours later) We sliould do mat good idea, the 4 of us should sit down and talkbecause I'm sick and tired of you.

[Filing No. 38-5 at 1.] The Board recommended a three-day suspension citing, among other things, the IMPD policy providing that “[m]embers shall not be insubordinate or act with disrespect to any supervisor or appointed police administrator.” [Filing No. 38-5 at 1.] Acting Chief Ronald Hicks accepted the Board's findings and imposed a one-day suspension effective May 27, 2014. [Filing No. 38-5 at 2-3.]

         For his part, Officer Cosby does not deny that the March 18, 2014, message exchange occurred. He does, however, provide additional context for the incident. In March 2014, Sergeant Jefferson asked Officer Cosby whether he had permission to change his zone assignment. [Filing No. 43-1 at 2.] Officer Cosby told Sergeant Jefferson, who was not Officer Cosby's supervisor, that he had received permission to change zones. [Filing No. 43-1 at 2.] Sergeant Jefferson “had been picking at [Officer Cosby] pretty hard” and, as reflected in the message exchange, told Officer Cosby that he would talk with Sergeant Roger Suesz and the Lieutenant. [Filing No. 43-1 at 2.] The incident led to a meeting between Sergeant Jefferson, Sergeant Karen Dague, and Captain Harold Turner. [Filing No. 43-1 at 2.] Captain Turner told Sergeant Jefferson and Sergeant Dague that Officer Cosby could “either go to Wellness and get checked out, or [he] could take a one-day suspension.” [Filing No. 43-1 at 2.] Officer Cosby “went to Wellness to get checked out” and “was cleared, ” but still received the one-day suspension. [Filing No. 43-1 at 2-3.]

         3. December 2014 “Coaching Expectations” Memorandum

         Sometime after the incident with Sergeant Jefferson, Sergeant T. Michael Wilson joined Officer Cosby's shift. [Filing No. 43-1 at 3.] Officer Cosby welcomed Sergeant Wilson and congratulated him on his promotion. [Filing No. 43-1 at 3.] Sergeant Wilson replied, “I heard about you and I will be keeping my eyes on you.” [Filing No. 43-1 at 3.]

         On December 31, 2014, Sergeant Wilson sent Officer Cosby an “Inter-Department Communication” regarding “Coaching expectations.” [Filing No. 38-6 at 1.] The document provided as follows:

Officer Cosby,
This interdepartmental is in reference to the your coaching for unwillingness to perform assigned dirties.
Corrective actions for day shift;
Will arrive to work on time and logged onto his assigned zone.
Wilt check his department e-mail in a timely manner to check daily zone assignment'
Will contact'm on duty day shift supervisor for approval prior to changing zone assignments.
Will keep Z-CIient messages professional in nature.
Will comply with assignments changes in a timely manner and wiil contact m on duty day supervisor respectfully if be has questions or concerns regarding the given assignment

         Officer Cosby tatter understands that his and other officers shift zones preference will be used in assigning daily zone assignments, but that the mission and manpower of the shift may result in changes. Officer Cosby also understands that the assignment of zones is ultimately at the discretion of the on duty shift supervisor based on current staffing, manpower and mission of the department [Filing No. 38-6 at 1.]

         4. February 2015 Performance Review

         On February 17, 2015, Sergeant Suesz, who supervised Officer Cosby at the time, issued the following written performance review:

Officer Cosby1s performance has caused several officers to complain about working with him. All of the dayshift supervisors have been approached by other officers about Officer Cosby, specifically showing up to runs fete, not sharing the run load or report bad, and marking out on PWPs for an excessive amount of time. Other shift supervisors have came to us complaining about his performance which caused another administrative supervisor to pul(several daily CADs and stats on Officer Cosby which showed his performance to be very low, Lt King spoke to him about being marked out at the garage for an hour and a half at the end of his shift even though he never went to the garage but was able to avoid taking any runs during that time. His self initiated activity is very low in quantity. Dayshift supervisors wiil work with htm to be more active in taking runs, ...

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