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Appleton v. City of Gary

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

February 13, 2019

CITY OF GARY, Defendant.



         This matter is before the court on the Motion for Summary Judgment [DE 59] and the Motion to Strike Potions [sic] of Plaintiff's Response to Defendant's Motion for Summary Judgment [DE 70] filed by the defendant, City of Gary, on May 14, 2018 and July 3, 2018. The Motion for Summary Judgment [DE 59] is GRANTED, and the Motion to Strike Potions [sic] of Plaintiff's Response to Defendant's Motion for Summary Judgment [DE 70] is GRANTED.


         The plaintiff, Ebony Appleton, filed her complaint on October 18, 2016, alleging that the defendant, City of Gary, violated Title VII of the Civil Rights Act of 1964. Based on Appleton's pro se complaint, she has alleged sex discrimination and retaliation in violation of Title VII. Appleton, in her response to the City's motion for partial dismissal of the complaint, indicated that she was not alleging a sexual harassment claim. Therefore, Appleton's claims in the instant matter are limited to sex discrimination and retaliation.

         Appleton began working for the City of Gary in the Youth Services Bureau (YSB) of the City's Parks Department as the part-time After School Group Leader on September 16, 2014. On April 6, 2015, Appleton was promoted to a part-time Site Manager. However, her pay remained the same. Appleton reported to YSB Director, Ken Barry, and then Cecelia Garmon, beginning late April of 2015. At the start of January of 2016, she began reporting to Marcus Hare. On March 31, 2016, Appleton sent a letter to the City's Human Resources Department requesting a transfer. She advised the City's Director of Human Resources, Marianetta Barber, that she had difficulty working with Hare, Garmon, and Patricia Covington. Appleton remained a YSB Site Director until she was transferred to a vacant Recreational Aide position in the Parks Department on September 6, 2016 and was given a pay raise. She reported to the City's Superintendent of the Park's Department, Lori Latham, from April of 2016 until her discharge on September 23, 2016.

         Appleton filed a Charge of Discrimination with the Gary Human Relations Commission (GHRC) on May 12, 2016 alleging sex discrimination. The GHRC found no probable cause to support her claims, and on September 13, 2016 the EEOC adopted those findings and issued a Dismissal and Notice of Rights to Appleton. On September 23, 2016, Appleton's employment with the City was terminated. She then filed a second Charge of Discrimination with the GHRC on September 27, 2016 alleging retaliation. Appleton contends that she was retaliated against for filing the first charge. Appleton did not provide a Dismissal and Notice of Rights letter in connection with her second charge of retaliation. However, the court determined that her retaliation claim grew out of her earlier sex discrimination charge, and therefore she was not required to exhaust her administrative remedies.

         The City has argued that the allegations that Appleton has asserted against the City are not sufficient to support claims of sex discrimination and retaliation. The City contends that Appleton has not presented any actual evidence of sex discrimination. Moreover, as for Appleton's retaliation claim, the City represents that Appleton continuously disobeyed City policies, particularly right before her dismissal.


         Before addressing the City's motion for summary judgment, the court first must determine what evidence it may consider by addressing the City's motion to strike certain portions of Appleton's response. Appleton has filed four separate documents in response to the City's motion for summary judgment including: Plaintiff Request that Defendant Summary Judgement [sic] be Denied [DE 65]; Plaintiffs Support to Dismiss Defendant Summary Judgement [sic] [DE 66]; Plaintiffs Support for Dismissal of Defendants Summary Judgement [sic] [DE 67]; and Declaration of Ebony Appleton [DE 68]. The City has argued that Appleton's response relies on documents, assertions, and personal statements that are unrelated to the claims in the instant matter.

         Appleton, despite being advised by the court, has failed to respond to the City's statement of material facts as required by the court's summary judgment procedures and has failed to properly submit any proposed findings of fact of her own. Under the procedures, Appleton was required to 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. Instead, Appleton has presented the court with a plethora of information without citing affidavits, discovery responses, or other admissible evidence. It is not the court's job to “figure out for which issues which parts” of the designated evidence might be admissible. Bradley v. Work, 154 F.3d 704, 707 (7th Cir. 1998). The court recognizes that the Appleton is pro se and should not be held to the same standards as a litigant with an attorney and that pro se litigants face special challenges that litigants represented by counsel do not. However, pro se litigants are not excused from following procedural rules simply because the rules of procedure assume that litigation is normally conducted by lawyers. Lee v. Wal-Mart Stores, 1994 WL 899240, * 1 (N.D. Ind. 1994).

         Federal Rule of Civil Procedure 56(c)(2) provides that “[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Appleton has provided the determination of the Indiana Department of Workforce Development (IDWD) [DE 66] for unemployment compensation. The IDWD determination record submitted by Appleton has nothing to do with her sex discrimination and/or retaliation claims. Instead, it focused on if she was “discharged for just cause.” The award of unemployment benefits is not helpful, or even admissible. See McClendon v. Ind. Sugars, Inc., 108 F.3d 789, 798 (7th Cir. 1997) (explaining that the plaintiff was precluded from using an unemployment compensation determination from an Indiana administrative proceeding to support his assertion that the employer's proffered reason was a pretext for retaliation because the ultimate issue decided in the Indiana proceeding was different from the ultimate issue presented in the retaliatory discharge case and because the allocation of the burden of proof with respect to the underlying facts was significantly different in the two proceedings). “The nature of the proceeding to determine eligibility for unemployment compensation is fundamentally different than a Title VII action, and the conclusions of that state agency are in no way binding on the district court. Martin v. Dep't of Corr., 2005 U.S. Dist. LEXIS 6715, at *18 (S.D. Ind. 2005). Accordingly, IDWD determination submitted by Appleton must be stricken.

         Additionally, Appleton submitted an unrelated criminal decision. She has not offered any explanation for how the criminal matter is related to the instant case. Therefore, the court will not consider the criminal case in determining whether summary judgment is appropriate. Appleton also has made references to an unrelated claim for lost wages and allegations that her “guaranteed” hours were reduced. She has not filed a timely charge of discrimination relating to these allegations. Thus, the criminal case submitted and the above allegations are stricken.

         The City has argued that Appleton has devoted a large portion of her response to facts, opinions, and allegations of harassment. However, she specifically indicated in her response to the motion for partial dismissal that she did not file a claim for sexual harassment. Therefore, the City has argued that because a claim for sexual harassment is not before the court her allegations of harassment should be stricken. Moreover, the City contends that the statements made by Appleton are opinion and conjecture, and thus are not admissible.

         Federal Rule of Evidence 602 requires that a declarant have personal knowledge about the matters to which she testifies. Additionally, Federal Rule of Civil Procedure 56(c)(4) mandates that, “[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." The affiant may include reasonable inferences drawn from her own observations but may not testify as to the knowledge or observations of another. Payne v. Pauley, 337 F.3d 767, 772 (7th Cir. 2003). The City has cited specific allegations submitted by Appleton in the Plaintiffs Support for Dismissal [DE 67] and Declaration of Ebony Appleton [DE 68] that it asserts are unrelated and inadmissible. The court finds that Appleton's response contains inadmissible hearsay, ...

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