United States District Court, S.D. Indiana, Indianapolis Division
ORDER ON MOTION FOR SUMMARY JUDGMENT
R. SWEENEY II, JUDGE UNITED STATES DISTRICT COURT.
Robert Johnson brought this action against Defendant State of
Indiana, Indiana Department of Homeland Security under Title
VII of the Civil Rights Act of 1964 (“Title VII”)
42 U.S.C. § 2000e et seq. Johnson alleges that
Defendant terminated his employment in retaliation for his
report of sexual harassment of three women by a coworker,
David Smith. Defendant moves for summary judgment. (ECF No.
41) For the reasons that follow, the Court finds that summary
judgment should be granted.
began his employment with the Indiana Department of Homeland
Security (“IDHS”) as Assistant State Fire Marshal
in September 2013. (Greeson Dep. 7:8-10, ECF No. 42-1 at 7.)
In that position, he was second in command of the Division of
Fire and Building Safety, a section of IDHS. (Kane Dep.
8:17-25, ECF No. 42-2 at 7.) Johnson was hired by and
reported directly to the State Fire Marshal James Greeson.
(Kane Dep., 10:13-17, ECF No. 42-2 at 9.)
testified that he and Greeson had different management
styles-Johnson was more hands-off, whereas Greeson was more
hands-on. (Johnson Dep. 33:19-25, ECF No. 42-3 at 18.)
Johnson believed that this difference in management styles
caused a “disconnect.” (Johnson Dep. 40-41:23-5,
ECF No. 42-3 at 25-26.) He spoke with Greeson a few times
about this because Johnson could see in Greeson's actions
“that [Greeson] didn't like the way [Johnson] was
doing things or the way [he] did [his] management
style.” (Johnson Dep. 35:1-15, ECF No. 42-3 at 20.)
Johnson thought that Greeson had “some professional
jealousy” toward Johnson. (Johnson Dep. 37-38:8-1, ECF
No. 42-3 at 22-23.) Johnson explained that some employees
would take their problems to Johnson rather than Greeson, and
when this occurred, Greeson focused on the fact that the
person went to Johnson as opposed to the problem itself.
(Johnson Dep. 37-38:8- 15, ECF No. 42-3 at 22-23.)
testified that at times, he had “an issue with the
relationship between . . . Johnson and [then] Director
[David] Kane.” (Greeson Dep. 53:10-12, ECF No. 42-1 at
49.) Greeson added that “Director Kane would find out
things before [he] would . . . .” (Greeson Dep.
53:12-14, ECF No. 42-1 at 49.) Former Director Kane said he
was “mindful that the fire marshal was sometimes
displeased that [Johnson] was talking with [Kane].”
(Kane Dep. 65:20-22, ECF No. 42-2 at 40.) On at least two
occasions it “was clear” to Director Kane
“that there was conflict between the marshal and the
assistant marshal to the point that [Kane] thought it needed
intervention to try and make it a better working
relationship.” (Kane Dep. 63:19-25, ECF No. 42-2 at
employed with IDHS, Johnson was given annual performance
appraisals. (Johnson Dep. 30:9-11, ECF No. 42-3 at 15.) In
2014 and 2015, he was rated as “met” or
“exceeded expectations” in all categories of the
appraisals. (Johnson Dep. 30:12-14, ECF No. 42-3 at 15.) For
his 2016 appraisal, however, he was rated “does not
meet” expectations in two out of seven
[c]ompetencies-teamwork and problem solving/decision making.
(ECF No. 42-6 at 2.) More specifically, under Teamwork, the
appraisal stated that Johnson “needs to improve on
managing staff”; he “tends to be hands off when
supervising staff, which led to stressful situations causing
one employee to leave employment”; and at times,
“Johnson makes comments without thinking that are
offensive to staff.” (ECF No. 42-6 at 2.) Marshal
Greeson testified that in November 2016 Johnson once
commented to him and his assistant that the problem in the
fiscal staff was “it's just a bunch of damn
women.” (Greeson Dep. 36, ECF No. 45-1 at 37.) The
appraisal stated under “Problem Solving/Decision
Making” that “[t]his is an area where Mr. Johnson
needs to mature. He believes the work place is to have fun
and tends to bring difficult or controversial decisions to
the fire marshal instead of handling them. There are times
when his initial decision-making starts with the Executive
Director and not with lower level supervisors.” (ECF
No. 42-6 at 2.)
appraisal stated that the “[f]ailure to meet
expectations for any Competency may result in employee being
placed on a Work Improvement Plan or separation.” (ECF
No. 42-6 at 3.) Nonetheless, Johnson's Overall
Performance Rating was “Meets Expectations” and
no Work Improvement Plan was generated as a result of his
2016 appraisal. (ECF No. 42-6 at 3-4.) The appraisal was
signed by Marshal Greeson as the Evaluator, signed by an
unidentified Reviewer with a date of “12-27-16, ”
and signed by the Appointing Authority with a date of
“2/2/17.” (ECF No. 42-6 at 4.) Johnson did not
sign the appraisal and he contends that he never received the
appraisal because his position was eliminated. (Johnson Dep.
167:3-8, 192:16-20, ECF No. 42-3 at 111, 131.) He testified
that he “usually” reviewed his performance
appraisals with Greeson “in March” of each year.
(ECF No. 42-3 at 131.)
fall of 2016, IDHS's Chief Financial Officer
(“CFO”) left IDHS employment, leaving the finance
department without anyone in charge. (Kane Dep. 44:7-16, ECF
No. 42-2 at 28.) Instead of hiring a new CFO, Director Kane
selected Johnson to serve as Acting Chief Administrative
Officer (“CAO”). (Kane Dep. 13:11-24, ECF No.
42-2 at 12; Johnson Dep. 68:5-19, ECF No. 42-3 at 33.)
Johnson began as Acting CAO on September 4, 2016 (Johnson
Dep. 38-39:21-1, ECF No. 42-3 at 23-24), and was to fill the
position “for 90 days or until the [CFO] position [was]
filled.” (ECF No. 42-7; see also Johnson Dep.
68-69:20-5; 70:8-12, ECF No. 42-3 at 33-34, 35, 40.) Director
Kane did not fill the CFO position permanently because he was
resigning as director of IDHS, and he decided the incoming
director should fill the position. (Johnson Dep. 75:8-14, ECF
No. 42-3 at 40; Kane Dep. 20:6-20, ECF No. 42-2 at 19.)
Johnson became Acting CAO, Marshal Greeson took over all of
the duties of the Assistant Fire Marshal. (Greeson Dep.
11:9-23, ECF No. 42-1 at 11; Johnson 89:8-11, ECF No. 42-3 at
47.) Marshal Greeson testified that thereafter, at the end of
November 2016, he decided to eliminate the Assistant Fire
Marshal position. (Greeson Dep. 35:4-9, ECF No. 42- 1 at 31.)
He identified several reasons for this decision, including:
(1) the division's “budget was suffering, ”
“we were having a difficult time hiring people in
certain areas of our division, ” and he “was
looking for ways to reduce costs and save money . . . [so] as
to hire other . . . employees, ” (Greeson Dep.
33-34:23-10, ECF No. 42-1 at 29-30); (2) after assuming the
Assistant Fire Marshal's duties, Greeson felt the
Division of Fire and Building Safety was “working along
well” and was not “bogged down, ” (Greeson
Dep. 33-34:23-4, ECF No. 42-1 at 29-30); (3) Johnson's
absence caused Greeson to learn that Johnson “tended to
socialize, ” rather than “manage and direct,
” (Greeson Dep. 50:13-19, ECF No. 42-1 at 46); and (4)
Gree-son decided that he could eliminate the Assistant Fire
Marshal position to potentially hire support staff for other
areas in the division (Greeson Dep. 34:11-14, ECF No. 42-1 at
30). Director Kane did not recall whether Marshal Greeson
ever informed him that he wanted to eliminate the Assistant
Fire Marshal position. (Kane Dep. 19, ECF No. 45-3.)
December 28, 2016, three female employees, Amber Kent, Taylor
Workman and Jennifer Damadarius, approached Johnson about
their supervisor, David Smith, and reported that Smith was
sexually harassing them. (Johnson Dep. 96:10-24, 97:2-11 ECF
No. 42-3 at 54-55.) Because Smith reported directly to
Marshal Greeson, Johnson requested Greeson meet with Johnson
and the three employees. (Johnson Dep. 101-102:18-9, ECF No.
42-3 at 59-60.) The employees told Marshal Greeson that Smith
had been acting inappropriately in terms of his language and
the manner in which he conducted himself and that they felt
uncomfortable. (Johnson Dep. 102:20- 25, ECF No. 42-3 at 60;
Greeson Dep. 13-14:18-1, ECF No. 42-1 at 13-14.) Marshal
Greeson said he would “take care of it.” (Johnson
Dep. 103:1-9, ECF No. 42-3 at 61.) Immediately thereafter,
Marshal Greeson called Smith into his office and advised him
that he had met with three employees who had complaints about
Smith's language and conduct, the behavior had to stop,
and if Marshal Greeson heard “another word, ”
Smith would be fired. (Greeson Dep. 14:8-23, ECF No. 42-1 at
14.) Marshal Greeson went back to one of the employees to let
her know he had talked with Smith. (Greeson Dep. 14-15, ECF
No. 42-1 at 14-15.)
January 5, 2017, Johnson talked to Director Kane about the
allegations against Smith. (Johnson Dep. 104-105:12-4, ECF
No. 42-3 at 62-63; Kane Dep. 47:2-10, ECF No. 42-2 at 31.)
Director Kane instructed Johnson to notify human resources,
and Johnson spoke with Maria Limon in human resources.
(Johnson Dep. 104-106, ECF No. 42-3 at 62-64; Kane Dep.
47:2-10, ECF No. 42-2 at 31.) Director Kane testified that he
would not have known about the allegations against Smith if
Johnson had not reported them. (Kane Dep. 55-56, ECF No.
45-3.) The State Personnel Department investigated the
allegations, which concluded with Smith's termination in
mid-February 2017. (Greeson Dep. 25:19-24, 26:7-12, ECF No.
42-1 at 21, 22.) Johnson did not speak with anyone at IDHS
about the agency's handling of the investigation, and he
did not see or hear anything to suggest that the three
complaining employees were treated differently after
reporting the harassment. (Johnson Dep. 109:9-24, ECF No.
42-3 at 67.) Johnson did not speak with Marshal Greeson again
about the allegations or the investigation. (Johnson Dep.
107:6-7, ECF No. 42- 3 at 65.) Johnson admits that after he
reported the allegations to human resources, IDHS
appropriately handled the investigation. (Johnson Dep.
108-109:17-1, ECF No. 42-3 at 66-67.) Johnson thought that
“Marshal Greeson dropped the ball or didn't act
on” the sexual harassment allegations. (Johnson Dep.
109:1-3, ECF No. 42-3 at 67.) Yet, he testified that he has
“no idea” what Marshal Greeson did with the
report of sexual harassment. (Johnson Dep. 104:5-11, 109:4-8,
ECF No. 42-3 at 62, 67.)
January 9, 2017, Bryan Langley became director of IDHS.
(Langley Dep. 5:14-20, ECF No. 42-8 at 6.) A hiring freeze
had left IDHS with “a multitude of vacancies on paper,
” but no funding to fill the positions. (Langley Dep.
8-9:24-3, ECF No. 42-8 at 9-10.) The agency worked to fill
critical positions using funding from vacant positions.
(Langley Dep. 12-13:12-5, ECF No. 42-8 at 13-14.) On or about
February 22, 2017, Director Langley hired Adam Theimann as
CFO. (Langley Dep. 24:16-21, ECF No. 42-8 at 22.)
in early February 2017, after Director Langley had announced
the hiring of Theimann, Marshal Greeson advised human
resource representative Jordan Bolden and Director Langley
that he did not want Johnson to return as Assistant Fire
Marshal. (Greeson Dep. 43:8-17, 45:2-12, ECF No. 42-1 at 39,
41; see also Lang-ley Dep. 50:22-25, ECF No. 42-8 at
36; Greeson Dep. Ex. 25, ECF No. 45-7.) Although Director
Langley said that he “really didn't need” the
position, in the end he deferred to Marshal Greeson's
decision whether to eliminate the position. ...