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Robert v. City of South Bend

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

October 24, 2019




         The Plaintiff, Theodore Robert, is a former police officer with the South Bend Police Department (SBPD). On March 25, 2016, the Plaintiff filed a Third Amended Complaint [ECF No. 51] against the City of South Bend, alleging that he was denied a promotion for a School Resource Officer position posted in November 2011 because he is African American, in violation of Title VII and the Equal Protection Clause to the United States Constitution. This matter is before the Court on the Defendant's Motion for Summary Judgment [ECF No. 93], filed on January 4, 2019. For the reasons stated below, the Defendant's Motion for Summary Judgment is GRANTED.


         “The court shall 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). The Supreme Court has explained that “the burden on the moving party may be discharged by ‘showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “If the moving party has properly supported his motion, the burden shifts to the non- moving party to come forward with specific facts showing that there is a genuine issue for trial.” Spierer v. Rossman, 798 F.3d 502, 507 (7th Cir. 2015). “To survive summary judgment, the nonmoving party must establish some genuine issue for trial such that a reasonable jury could return a verdict in [his] favor.” Gordon v. FedEx Freight, Inc., 674 F.3d 769, 772-73 (7th Cir. 2012). Within this context, the Court must construe all facts and reasonable inferences from those facts in the light most favorable to the nonmoving party. Frakes v. Peoria Sch. Dist. No. 150, 872 F.3d 545, 550 (7th Cir. 2017). However, the nonmoving party “is only entitled to the benefit of inferences supported by admissible evidence, not those ‘supported by only speculation or conjecture.'” Grant v. Trs. of Ind. Univ., 870 F.3d 562, 568 (7th Cir. 2017) (citing Nichols v. Michigan City Plant Planning Dep't, 755 F.3d 594, 599 (7th Cir. 2014)). Likewise, irrelevant or unnecessary factual disputes do not preclude the entry of summary judgment. Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).


         The Plaintiff, an African American male, has an undergraduate degree from Hope College, has a master's degree in public affairs from Indiana University, and is a graduate of the Kalamazoo Valley Law Enforcement Academy. Decl. of Theodore Robert, ¶¶ 1-2, ECF No. 106. In 2004, the Plaintiff began his career in law enforcement by joining the Benton Harbor Police Department as a patrol officer. Id. ¶ 2. Throughout his tenure as a police officer, the Plaintiff volunteered at various civic organizations such as the Boys and Girls Club of America. Id. ¶ 46.

         While at the Benton Harbor Police Department, the Plaintiff received certification through the Michigan State Police D.A.R.E./T.E.A.M. division as a School Resource Officer (SRO) and became an SRO. Id. ¶ 3. An SRO is a police officer who assists with school security, mentors students, and teaches students about criminal justice issues. Decl. of Crittendon, ¶¶ 7-8, ECF No. 94-3. The Plaintiff remained an SRO until he resigned from the Benton Harbor Police Department in 2006. Decl. of Theodore Robert, ¶ 3.

         In November 2006, the Plaintiff joined the SBPD as a police officer. Id. ¶ 1. On July 6, 2010, the Board of Public Safety, which is an administrative agency responsible for disciplining SBPD police officers, reprimanded the Plaintiff and suspended him for thirty days without pay. Dep. Exs., pp. 22-23, ECF No. 94-2. The Board found that, on May 30, 2010, the Plaintiff used excessive force when he “threw a single punch to [a] handcuffed subject's face which caused a laceration to the subject's eye.” Id.

         In November 2011, the Plaintiff applied for an SRO position with the SBPD. Decl. of Crittendon, ¶ 6, ECF No. 94-3. Officer Antonio Pacheco, who is Latino, also submitted an application. Id. ¶ 15. A white police officer and an African American police officer also applied for the position. Id. Interviews for the SRO position were conducted in December 2011 by Lieutenant Eric Crittendon, Captain Young, and Division Chief Steve Richmond. Id. ¶ 16. Crittendon, who is African American, was the supervisor of the SRO program and the lead person on the interview panel. Id. ¶¶ 2, 12. Captain Young and Division Chief Richmond, who are white, assisted with the selection process. Id. ¶ 12. Ultimately, Officer Pacheco was selected for the vacant SRO position. Id. ¶ 18.

         Regarding the selection of Officer Pacheco, Lieutenant Crittendon stated in his written declaration that Officer Pacheco “had experience in schools as a special education teacher and coach” and “spoke some Spanish-a significant advantage given the need to serve the . . . Latino student population.” Id. ¶ 19. Lieutenant Crittendon also stated that Officer Pacheco “displayed a positive, kind manner that . . . would resonate well with school-aged children.” Id.

         Lieutenant Crittendon stated that he “was generally aware that [the Plaintiff] had served a suspension the year before (i.e., 2010) for punching a handcuffed suspect at the county jail.” Id. ¶ 21. Lieutenant Crittendon noted that it was “critically important that SBPD not have heavy-handed officers in schools.” Id. Lieutenant Crittendon considered “how it would look if I put an officer in schools who had a history of punching a suspect. If something happened, how could I-or the City-explain that? This information suggested to me that [the Plaintiff] was not the best applicant for the job.” Id.

         Ultimately, Lieutenant Crittendon concluded that Officer Pacheco “was the best qualified candidate for the November 2011 SRO vacancy. My recommendation was based on his application, experience, temperament, language skills, and interview performance.” Id. ¶ 24. He further stated: “[My] colleagues on the panel agreed with my conclusions and recommendation. I communicated the recommendation to Chief Boykins, who approved it.” Id. ¶¶ 24, 25. Darryl Boykins, who at time was the SBPD Chief of Police, stated that he approved the panel's recommendation without any independent review of the applications and appointed Officer Pacheco to the SRO position. Decl. of Darryl Boykins, ¶ 9, ECF No. 94-4. Chief Boykins is African American. Id. ¶ 2.

         On October 19, 2015, the Plaintiff resigned from the SBPD. See Pl.'s Resp. Br. in Opp'n to Def.'s Am. Br. for Summ. J., p. 1, ECF No. 104. On February 8, 2016, the Plaintiff pleaded guilty to a criminal charge of excessive use of force which arose from ...

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