United States District Court, S.D. Indiana, Evansville Division
REPORT AND RECOMMENDATION AND ORDER ON OUTSTANDING
Matthew P. Brookman United States Magistrate Judge
matter is before the Court on six outstanding motions. The
Honorable Richard L. Young has referred this matter to the
Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B)
for a report and recommendation on three of these matters:
(1) Defendant's Gibson County Commissioners Motion
for Judgment on the Pleadings (Docket No. 40);
(2) Plaintiff's Ann Ice Amended Motion for Leave to
File Amended Complaint to Conform to the Evidence
(Docket No. 44); and (3) Plaintiff's Amended
Motion to Strike Motion for Judgment on the Pleadings
(Docket No. 45). (Docket No. 67).
The undersigned will provide recommendations on each of these
motions, separately, below. Three other motions have been
referred to the Magistrate Judge: (1) Defendant's
Motion to Show Cause (Docket No. 38);
Plaintiff's First Motion to Make Report of
Conduct to Court and Request for Equitable and Remedial
Relief Pursuant to Inherent Power of this District
Court (Docket No. 56); and Defendant's
Motion for Extension of Time to File Response
to [Docket No. 56] (Docket No.
Ms. Ice was the Education Coordinator for the Gibson County
Soil and Water Conservation District (“SWCD”).
She brings this matter against Defendant Gibson County
Commissioners (“the Commissioners”) alleging that
after more than sixteen (16) years of employment, she was
wrongfully terminated in July of 2017. (Docket No. 1 at
ECF p. 3, 7). Ms. Ice alleges age discrimination, Family
Medical Leave Act violations (“FMLA”), and
retaliation claims. (Id.).
Motion to Strike Motion for Judgment on the
Pleadings (Docket No. 45)
the undersigned addresses the Motion for Judgment on the
Pleadings (Docket No. 40), Ms. Ice's
Motion to Strike Motion for Judgment on the
Pleadings (Docket No. 45) must be considered.
Ms. Ice asks this Court to strike or summarily deny the
motion for the judgment on the pleadings for its failure to
follow Local Rule 7-1(b)(1).
Rule 7-1(b)(1) provides that motions for judgment on the
pleadings under Fed.R.Civ.P. 12 must be accompanied by a
supporting brief. The Commissioners' Motion for
Judgment on the Pleadings does not have a supporting
memorandum. Ms. Ice requests strict enforcement of the local
rule. (Docket No. 45 at ECF p. 2, citing
Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 922
(7th Cir. 1994) (noting that the Seventh Circuit has
“repeatedly held the strict enforcement of [the local]
rules”)). But, the Court has great discretion in
applying its own rules. SeeS.D. Ind. Local Rule
1-1(c). See also, Stevo v. Frasor, 662 F.3d
880 (7th Cir. 2011) (“[W]e have repeatedly held that
district judges are entitled to insist on strict compliance
with local rules . . . We have not endorsed the very
different proposition that litigants are entitled to expect
strict enforcement by district judges.”) (internal
Commissioners' failure to separate its Motion for
Judgment on the Pleadings into a motion and a supporting
memorandum is not prejudicial. The Commissioners' factual
and legal analysis within its motion is in keeping with the
spirit of the local rule. It is in the best interest of this
case to consider the Commissioners' motion as filed.
Thus, the undersigned recommends that Ms.
Ice's Motion to Strike Motion for Judgment on the
Pleadings (Docket No. 45) be
Motion for Judgment on the Pleadings (Docket No.
29, 2019, the Commissioners filed a Motion for Judgment
on the Pleadings pursuant to Fed.R.Civ.P. 12(c).
(Docket No. 40). Ice filed a timely response.
(Docket No. 42). No reply was filed. The undersigned
recommends that the Commissioners'
motion be DENIED.
party may move for judgment on the pleadings “[a]fter
the pleadings are closed- but early enough not to delay
trial.” Fed.R.Civ.P. 12(c). A motion for judgment on
the pleadings may be granted only if the moving party clearly
establishes that no material issue of fact remains to be
resolved and that he or she is entitled to judgment as a
matter of law. Flora v. Home Fed. Savings & Loan
Ass'n, 685 F.2d 209, 211 (7th Cir. 1982). “The
court may consider only matters presented in the pleadings
and must view the facts in the light most favorable to the
nonmoving party.” Nat'l Fidelity Life Ins. Co.
v. Karaganis, 811 F.2d 357, 358 (7th Cir. 1987). The
court is not bound by the nonmovant's legal
characterizations of the facts. Id. In considering
this motion, therefore, we assume the facts as alleged by Ms.
Ice, as set forth in the current operative complaint, to be
true. See id.
an employee of the Commissioners working in the USDA Service
Venter for the Gibson County Soil and Water Conservation
District (“SWCD”) for more than sixteen (16)
years. (Docket No. 1 at ECF p. 3, ¶¶6-7).
The SWCD is supervised and managed by Defendant, the Gibson
County Commissioners. (Docket No. 1 at ECF p. 1,
began experiencing work-related stress and anxiety in
December of 2014. (Docket No. 1 at ECF p. 3, ¶
11). Her medical issues continued to worsen and on January
14, 2017, she was transported by ambulance to the St.
Mary's Hospital Emergency Room experiencing chest pains.
(Docket No. 1 at ECF p. 5, ¶ 22). After this
episode, Ice stopped attending board meetings due to her
work-related stress. (Id. at ¶ 24). On January
20, 2017, she filed an EEOC Charge of Discrimination against
the Commissioners, the SWCD Board, and federal employee,
Travis Gogel. (Id. at ¶ 25).
13, 2017, the SWCD notified Ice her hours changed
(Id. at ECF p. 6, ¶28) and also instructed her
to not work for the rest of the week (June 14-16) because she
had already met the requisite hours for the pay period.
(Id. at ¶ 30). On June 23, 2017, the SWCD
convened in an executive meeting where they presumably
discussed that Ice did not work June 14-16, 2017.
(Id. at ¶ 31). Ice returned to work on June 27,
2017, and was suspended without pay for three (3) days due to
not appearing for work June 14-16, 2017. (Id. at
requested FMLA paperwork from the Gibson County Auditor's
Office on July 13, 2017 (Docket No. 1 at ECF p. 7,
¶ 35). Ice completed the paperwork and returned it to
the Auditor's Office by July 18, 2017. (Id. at
¶ 37). An employee in the Auditor's Office informed
Ice that there was insufficient time to add the FMLA request
to the Commissioners' July 18, 2017, meeting agenda for
approval. (Id. at ¶ 38). Ice was terminated on
July 28, 2017 by SWCD Board Chairman, Matt Michel and SWCD
Supervisor, Kenny Page. (Docket No. 1 at ECF p. 3,
¶¶ 7-8). She was replaced by a younger candidate.
(Docket No. 1 at ECF p. 4, ¶ 16, n. 1). She
filed a discrimination charge with the Equal Employment
Opportunity Commission (“EEOC”) on December 15,
2017. (Docket No. 1 at ECF p. 2, ¶ 5). She
filed this suit on May 14, 2018, alleging discrimination
under the Age Discrimination in Employment Act
(“ADEA”) (“Count I”), a violation of
the Family Medical Leave Act (“FMLA”)
(“Count II”), and retaliation because she engaged
in activities protected by the ADEA and FMLA (“Count
Commissioners argue that Ice admits that SWCD members
terminated her from employment, but that subsequent
depositions have “indisputably [established] that the
Board of Soil and Water Conservation District is a
state-created agency and is not overseen by the Board of
Commissioners of the County.” (Docket No. 40 at ECF
p. 1). The Commissioners argue that Ice concedes that
Indiana law establishes the Soil and Water Conservation
District for Gibson County as a governmental subdivision of
the State of Indiana pursuant to Ind. Code § 14-32-5-1,
although Ice was designated as a County employee pursuant to
Ind. Code § 14-32-4-18. (Id. at ECF p. 2). The
Commissioners argue that, given this concession, and that the
Complaint alleges discrimination by SWCD-the Commissioners
are entitled to judgment on the pleadings in its favor.
(Id. at ECF p. 3).
argues the Commissioners' motion should fail because it
looks beyond the allegations contained in the Complaint and
the Answer, or those documents' attachments-an
impermissible exercise for a Rule 12(c) motion. (Docket
No. 42 at ECF p. 2). Thus, Ice argues if the Court is
going to consider the Commissioners' motion at all it
should be converted to a Motion for Summary Judgment under
Rule 56. (Docket No. 42 at ECF p. 4). But, even
under that standard, Ice argues, the motion fails as it does
not meet the substantive or procedural requirements of Local
Rule 56-1 or Fed.R.Civ.P. 56. (Id. at ECF pp. 4-5).
Ice further argues that the Commissioners' argument lacks
substantive merit because it assumes that there is not an
agency relationship between the Commissioners and the SWCD
supervisors. (Docket No. 42 at ECF p. 6). The
Commissioners do not reply to Ms. Ice's arguments.
Commissioners' motion for a judgment on the pleadings is
unpersuasive. In its answer, the Commissioners admit that
they are “responsible for the supervision and
management of the [SWCD].” (Docket No. 1 at ECF p.
1, ¶ 2; Docket No. 9 at ECF p. 9 ¶
2). The Commissioners also admit that Ms. Ice “was an
employee of the Commissioners working in the USDA Service
Venter for the SWCD.” (Docket No. 9 at ECF p.
2 ¶ 6; Docket No. 1 at ECF p. 3 ¶ 6).
Several of the Commissioners' affirmative defenses aver,
among other defenses, that its “actions regarding
Plaintiff's employment were taken for legitimate,
non-discriminatory reasons” (Docket No. 9 at ECF p.
7, ¶ 2); “treatment of Plaintiff was in
compliance with federal and state laws” (Id.
at ¶ 4); and “actions were job-related and
consistent with business necessity.” (Id. at
ECF p. 10, ¶ 8). The undersigned understands that the
Commissioners draws a distinction between employing
Ms. Ice, which it admits it did, and making the decision to
terminate Ms. Ice, which it admits that SWCD Board
Chairman, Matt Michel and SWCD Supervisor, Kenny Page did.
(Docket No. 1 at ECF p. 3, ¶ 8; Docket No.
9 at ECF p. 2, ¶ 8). But the Commissioners have
already admitted, whether the evidence supports or not, that
it is responsible for the supervision and management of the
SWCD. What the evidence post-pleadings shows is beyond the
scope of a motion for judgment on the pleadings. See
Nat'l Fidelity Life Ins. Co., 811 F.2d at 358.
The pleadings, viewed in the light most favorable to Ms. Ice,
show that she was employed by the Commissioners, that she was
terminated by the SWCD Board Chairman and SWCD Supervisor,
and that the Commissioners was responsible for the
supervision and management of the SWCD.
Rule of Civil Procedure 12(c) provides that if a motion for
judgment on the pleadings presents matters outside the
pleadings, “the motion shall be treated as one for
summary judgment and disposed of as provided in Rule 56, and
all parties shall be given reasonable opportunity to present
all material made pertinent to such motion by Rule 56.”
The decision of whether to convert a motion to dismiss for
summary judgment is left to the discretion of the court.
See Levenstein v. Salafsky, 164 F.3d 345,
347 (7th Cir. 1989). The undersigned declines to do so. The
evidence has not been presented in a manner consistent with
the Fed.R.Civ.P. 56 and S.D. Ind. Local Rule 56-1. For these
reasons the undersigned recommends that the
Commissioners' Motion for Judgment on the
Pleadings (Docket No. 40) be
Amended Motion for Leave to File Amended Complaint to Conform