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Tomsheck v. Town of Long Beach

United States District Court, N.D. Indiana, South Bend Division

August 12, 2019

TOWN OF LONG BEACH, et al., Defendants.



         Aaron Tomsheck was terminated from his job as Building Commissioner of the Town of Long Beach, Indiana, following months of conflict with other members of the Building Commission. He then sued the Town and each member of the Town Council. He claims he was fired for engaging in speech protected by the First Amendment-specifically, his testimony in a civil case by homeowners challenging decisions by the Town's Board of Zoning Appeals-and he asserts related claims under state law for wrongful termination.

         The defendants moved for summary judgment, raising two principal arguments: (1) that Mr. Tomsheck's speech was not protected by the First Amendment (and at the very least, it was not clearly established that the speech was protected, as required to avoid qualified immunity), and (2) that he was not fired for that speech, but for other reasons including his insubordination and defiance of the Building Commission's authority. In response, Mr. Tomsheck cited several facts that he believes cast suspicion on the reason he was fired. Not only does that argument fall short, but Mr. Tomsheck made no attempt at all to respond to the first argument and demonstrate that he engaged in protected speech. The Court thus grants summary judgment on the federal claims and relinquishes supplemental jurisdiction over the state claims.


         The facts are set forth in detail in the defendants' Statement of Undisputed Material Facts-all of which are deemed admitted because Mr. Tomsheck failed to submit a Statement of Genuine Disputes, as required by the local rules. N.D. Ind. Local Rule 56-1(b)(2); Fed.R.Civ.P. 56(e). To summarize, Mr. Tomsheck began serving as the Building Commissioner for the Town of Long Beach in 2014. In that position, he had responsibility for the enforcement of the Town's building and zoning ordinances. The Town also has a Building Commission, which shares responsibility for the administration and enforcement of the building and zoning ordinances.

         An election in 2015 dramatically changed the make-up of the Long Beach Town Council. All of the members voted into office in that election had run on a platform that included preserving the right of access to the beach and properly administering Town ordinances. Upon taking office in January 2016, the new councilmembers made new appointments to the Building Commission. The newly constituted Building Commission in turn elected a new chair, displacing Mr. Tomsheck from his previous role as de facto president of the Building Commission. The Building Commission then adopted new directives that limited Mr. Tomsheck's authority as Building Commissioner and imposed a greater degree of oversight over his work.

         Mr. Tomsheck and the Building Commission did not see eye-to-eye on how to best interpret and enforce the town's building code, or on the respective authority of the Building Commissioner and the Building Commission. Those disagreements came to a head in a dispute over three homeowners' attempts to build seawalls on their properties adjacent to Lake Michigan-projects that were contentious and generated public opposition. Mr. Tomsheck, believing the seawalls should be allowed, took various actions to facilitate their approval and construction. The Building Commission, holding the opposite view, responded each time by taking various actions to prevent their construction. The homeowners then filed suit in state court, and Mr. Tomsheck testified on multiple occasions over the course of that suit. He testified, among other things, that he believed that the Building Commission had no authority over the administration or enforcement of the Town's building and zoning codes; that the Building Commission had no authority to supervise him as Building Commissioner; that the Town's building and zoning ordinances were largely invalid; and that the Commission's interpretation of the ordinances was incorrect.

         Mr. Tomsheck's opposition to the Building Commission was not limited to his testimony. In various other communications made in his role as Building Commissioner, he expressed disagreement with the Commission's interpretation of building and zoning ordinances. For example, he sent an email to several members of the public, including one of the homeowners and an attorney in the pending suit against the Town, in which he disagreed with the Commission's interpretation of the building code. Mr. Tomsheck acknowledged that this email violated explicit instructions not to communicate with the suing homeowners or their attorney.

         In May 2016, when it came time for Mr. Tomsheck to present a report at the Commission's public meeting, he refused to do so. Instead, he challenged the Commission's authority and argued that it was unlawfully constituted, and asserted that he would report only to the Town Council, as he refused to accept the Commission's authority. Later that month, the Town Council held an executive session to discuss Mr. Tomsheck's performance. Then, in June 2016, the Town Council held a special meeting and unanimously voted to terminate Mr. Tomsheck's employment. The councilmembers later testified to the reasons for their votes, with common themes being Mr. Tomsheck's insubordination and his refusal to cooperate with the Commission. None of them testified that they considered his testimony; some were not even aware of it at the time.

         Mr. Tomsheck responded with this suit against the Town and the five members of the Town Council. Discovery has closed, and the defendants filed a motion for summary judgment, which is now ripe.


         A court must grant summary judgment if the movant shows that 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 identified by the substantive law as affecting the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine issue” exists with respect to any material fact when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. Where a factual record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial, and summary judgment should be granted. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In determining whether a genuine issue of material fact exists, courts must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in that party's favor. Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir. 2008); King v. Preferred Tech. Grp., 166 F.3d 887, 890 (7th Cir. 1999). However, the non-moving party cannot simply rest on its pleadings but must present evidence sufficient to show the existence of each element of its case on which it will bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Robin v. Espo Eng'g Corp., 200 F.3d 1081, 1088 (7th Cir. 2000).


         Mr. Tomsheck claims that his firing violated his rights under both federal and state law. As explained below, summary judgment is warranted on the federal claims, so the Court ...

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