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Schenke v. Daniels

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

March 15, 2019

JAMES K. SCHENKE, Plaintiff,
v.
MITCH DANIELS, et al., Defendants.

          OPINION AND ORDER

          Andrew P. Rodovich United States Magistrate Judge.

         This matter is before the court on the Motion for Summary Judgment [DE 100], and the Motion to Strike Plaintiff's Designated Evidence [DE 112] filed by the defendants, Mitch Daniels, Julie K. Griffith, Trent Klingerman, Brian Zink, and Shelley Triol, on March 16, 2018 and July 16, 2018. For the following reasons, the Motion for Summary Judgment [DE 100] is GRANTED, and the Motion to Strike Plaintiff's Designated Evidence [DE 112] is GRANTED in part and DENIED in part.

         Background

         The plaintiff, James K. Schenke, has pursued two causes of action pursuant to 42 U.S.C. § 1983 against the defendants. First, he asserts that the Purdue News Service Guidelines have chilled his right to speak as a private citizen on matters of public concern in violation of the First Amendment. Second, he asserts that the defendants deprived him of his constitutionally-protected right to speak as a private citizen on matters of public concern, as guaranteed by the First and Fourteenth Amendments, by requiring prior approval and by retaliating against him when he spoke on matters of public concern.

         Schenke was employed as a Broadcast Media Liaison by Purdue University's Office of News and Information. As a member of Purdue's News Service team, he was subject to the News Service Guidelines Policies and Procedures. The Guidelines included the following provisions:

In the absence of the vice president for university relations and the News Service director, members of the News Service may have occasion to become spokespeople for the university. Staff members are expected to be familiar with the University's position when speaking on Purdue-related issues to the media or public. They should refrain from publicly expressing personal views on University issues without written approval from the director and/or vice president. This includes, but is not limited to, letters to the editor, media interviews, and public meetings.
In matters that do not relate to Purdue, a member of the News Service staff must avoid any implication that the opinion he or she is expressing is also the opinion of the University.

         (DE 100-5, Ex. E).

         During the Spring and Summer of 2013, the City of West Lafayette was attempting to annex certain property along the U.S. 231 corridor. Schenke personally opposed the initial annexation plan because it included the subdivision where he lived, Wake Robin Estates. He indicated that “[i]t was quite clear in the public discourse that annexation was dead on arrival if Purdue did not allow it to proceed.” (Schenke Dep., at 218:4-8). “It was my presumption that [Purdue was] on board with the annexation by the time I joined the discourse.” (Schenke Dep., at 218:19-219:1).

         Schenke spoke out against the annexation by writing newspaper stories, writing letters to the editor, granting interviews with reporters, and speaking at a City Council meeting. On September 9, 2013, Schenke wrote a letter to the editor of the Purdue Exponent attempting to correct certain statements made about the annexation opponents. However, he did not submit the letter to his supervisor first. At the time Schenke wrote the letter, his stance was contrary to the University's position on the annexation. Schenke also was interviewed by a local television station about the noise from U.S. 231. Schenke was advised by the defendant, Brian Zink, to conduct himself in strict accordance with the News Service Policy.

         On November 4, 2013, Schenke notified Zink of his intention to speak at an upcoming West Lafayette City Council meeting about the scaled-back annexation plan. At the time of the City Council meeting, the annexation was focused on the University and did not include Schenke's neighborhood. (Zink Decl. ¶ 4). The defendants held a meeting to discuss the News Service Guidelines with Schenke because the media was expected to be present at the City Council meeting. Schenke voluntarily shared his planned remarks. He was advised of the distinction between speaking for the University and as a private citizen by the defendant, Trent Klingerman. (Klingerman Decl. ¶ 3). Additionally, the defendant, Shelley Triol, advised Schenke of the importance that he not make comments that could be misconstrued that he was speaking on behalf of Purdue. (Triol Decl. ¶ 3). Schenke spoke at the City Council meeting. He later was approached by a reporter for the Exponent. The Exponent article quoted Schenke as speaking negatively about the mayor, John Dennis.

         On November 11, 2013, Schenke received a written reprimand for non-compliance with the Guidelines. He filed a grievance on November 26, 2013, and at the grievance hearing on January 8, 2014, he claimed a misapplication of the Guidelines. The defendant, Shelley Triol, rescinded the reprimand. Schenke no longer is employed by Purdue. He was terminated in 2016 following an arrest.

         Schenke has argued that his media dealings throughout 2013 were not part of his official duties. Therefore, he was speaking as a private citizen on a matter of public importance. Thus, Schenke contends that the defendants burdened his free speech rights by retaliating against him for exercising his First Amendment rights when he applied for Purdue's vacant “Director of Public Information” position. The defendants denied Schenke an interview for the position. Schenke learned on September 10, 2013, a day after he sent his letter to the editor of the Exponent that he had not been selected for the position.

         The defendants have moved for summary judgment on this matter. Schenke filed a response in opposition on June 26, 2018, and the defendants filed a reply on July 16, 2018. The defendants also have moved to strike portions of Schenke's designated evidence. Schenke ...


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