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Mikulich v. Buncich

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

March 4, 2019

GUY MIKULICH, Plaintiff,



         I. BACKGROUND

          Plaintiff Guy Mikulich, a former employee of the Lake County Sheriff's Department, filed a complaint against the Lake County Sheriff's Department (“Department”); John Buncich, Lake County Sheriff; the Merit Board of Lake County, Indiana (“Merit Board”); the Lake County Board of Commissioners (“Commissioners”); and John Does 1-10. (DE # 1 at 1.) In his complaint, he claims that though his employment was purportedly terminated due to driving a department vehicle under the influence of alcohol, he was actually terminated because of a disability, namely post-traumatic stress disorder. (Id.)

         Plaintiff asserts three categories of claims. First, he sets forth federal claims, specifically violations of the Americans with Disabilities Act (“A.D.A.”), 42 U.S.C. § 12101 et seq., and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5 (Counts I, V, and IX).[1] Second, he states a number of claims under the laws of the State of Indiana, specifically wrongful termination, negligent infliction of emotional distress, negligent supervision, intentional infliction of emotional distress, and defamation (Counts II, III, VI, VII, and VIII). Finally, plaintiff asserts an additional federal claim, one under the Rehabilitation Act of 1973, 49 U.S.C. § 794 (Count IV), which is deserving of discussion separate from the other federal claims, for reasons set forth in more detail below.


         Before the court are three motions to dismiss. One was filed by the Commissioners and the ten John Does. (DE # 15.) A second was filed by John Buncich, then-Sheriff of Lake County, who is sued in his official capacity. (DE # 17.) Finally, the Merit Board moved to dismiss. (DE # 24.) The Lake County Sheriff's Department did not file a motion. For purposes of this opinion, the court refers to the moving defendants as “defendants, ” not including the Lake County Sheriff's Department.

         All of the motions assert that, under Federal Rule of Civil Procedure 12(b)(6), plaintiff fails to state a claim upon which relief may be granted. For purposes of these motions, the court construes the facts in a light most favorable to plaintiff, accepts all well-pleaded facts as true, and draws all inferences in plaintiff's favor. Erickson v. Pardus, 551 U.S. 89, 93 (2007); Reger Dev., LLC v. Nat'l City Bank, 595 F.3d 759, 763 (7th Cir. 2010).


         Defendants argue that the federal claims (save the claim under the Rehabilitation Act) should be dismissed as untimely-filed, and the state claims should be dismissed because plaintiff failed to comply with the Indiana Tort Claims Act (“I.T.C.A.”). The court begins with these two arguments because they vastly narrow the scope of the remaining claims. Finally, the court will address the defendants' various arguments with respect to the Rehabilitation Act.

         A. Federal Claims

         Defendants argue that plaintiff's A.D.A. and Title VII claims are time-barred. The parties agree that plaintiff received a right-to-sue letter from the E.E.O.C. informing him that he had 90 days within which to file a lawsuit based on any A.D.A. or Title VII claims. Defendants point out, and plaintiff admits, that the present lawsuit was filed 92 days after plaintiff states he received the right-to-sue letter.

         The Seventh Circuit has stated that, “absent special circumstances which give rise to waiver, estoppel, or equitable tolling, ” the time frame provided in a right-to-sue letter from the E.E.O.C. is firm, and an action filed outside of the time frame is barred. Anooya v. Hilton Hotels Corp., 733 F.2d 48, 49 (7th Cir. 1984) (complaint filed 91 days past receipt of right-to-sue letter was time-barred). Plaintiff has supplied no justification for the late filing, simply arguing that the complaint was “only” two days late. (DE # 32 at 5.) The court can discern no special circumstances giving rise to waiver, estoppel, or equitable tolling. Accordingly, the federal claims (Counts I, V, and IX) are dismissed.

         B. State Claims

         Defendants also argue that the state claims should be dismissed for plaintiff's failure to comply with the notice provision of the I.T.C.A. The I.T.C.A. states that “a claim against a political subdivision is barred unless notice is filed with: (1) the governing body of that political subdivision; and (2) the Indiana political subdivision risk management commission . . . within one hundred eighty (180) days after the loss occurs.” Ind. Code § 34-13-3-8(a). The notice requirement of the I.T.C.A. applies not only to suits against governmental entities but also to ...

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