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Johnson v. State, Indiana Department of Homeland Security

United States District Court, S.D. Indiana, Indianapolis Division

December 17, 2019

ROBERT JOHNSON, Plaintiff,
v.
STATE OF INDIANA, INDIANA DEPARTMENT OF HOMELAND SECURITY, Defendant.

          ORDER ON MOTION FOR SUMMARY JUDGMENT

          JAMES R. SWEENEY II, JUDGE UNITED STATES DISTRICT COURT.

         Plaintiff 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.

         I. Background

         Johnson 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.)

         Johnson 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.)

         Greeson 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 38.)

         While 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.)

         The 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.)

         In the 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.)

         When 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.)

         On 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.)

         On 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.)

         On 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.)

         Sometime 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. ...


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