JANE MAGNUS-STINSON, District Judge.
Plaintiff Greg Park brought the instant suit against Defendant City of Carmel, Indiana ("Carmel"), alleging that Carmel violated his rights under Title VII of the Civil Rights Act ("Title VII"). Mr. Park was previously employed by Carmel as a Police Officer, but Carmel terminated his employment. Mr. Park sued Carmel in a separate lawsuit, alleging that his termination was the result of unlawful race discrimination. During the pendency of that suit, Mr. Park applied to work as a Court Security Office at the Federal Courthouse in Indianapolis. As part of the background check for employment as a Court Security Officer, the United State Marshal Service requested information from Carmel regarding Mr. Park's previous employment as a Carmel Police Officer. In the instant suit, Mr. Park alleges that Carmel illegally retaliated against him for suing it for racial discrimination by intentionally delaying its response to the United State Marshal Service's request for information. Presently pending before the Court is Carmel's Motion for Summary Judgment. [Filing No. 32.] For the reasons explained below, Carmel's Motion for Summary Judgment is
A motion for summary judgment asks the Court to find that a trial is unnecessary because there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a). As the
In deciding a motion for summary judgment, the Court need only consider disputed facts that are material to the decision. A disputed fact is material if it might affect the outcome of the suit under the governing law. Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir.2009). In other words, while there may be facts that are in dispute, summary judgment is appropriate if those facts are not outcome determinative. Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir.2005). Fact disputes that are irrelevant to the legal question will not be considered. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
On summary judgment, a party must show the Court what evidence it has that would convince a trier of fact to accept its version of the events. Johnson v. Cambridge Indus., 325 F.3d 892, 901 (7th Cir. 2003). The moving party is entitled to summary judgment if no reasonable fact-finder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir.2009). The Court views the record in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Darst v. Interstate Brands Corp., 512 F.3d 903, 907 (7th Cir.2008). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. O'Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir.2011). The Court need only consider the cited materials, Fed.R.Civ.P. 56(c)(3), and the Seventh Circuit Court of Appeals has "repeatedly assured the district courts that they are not required to scour every inch of the record for evidence that is potentially relevant to the summary judgment motion before them," Johnson, 325 F.3d at 898. Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir.2010).
Carmel objects to three categories of evidence from Mr. Park's declaration. One of these categories — evidence that Mr. Park was going to be hired as a CSO — is irrelevant to the Court's analysis and ultimate decision and therefore need not be ruled upon. The Court sustains Carmel's other two objections on the grounds that they constitute inadmissible hearsay.
Hearsay is "a statement that ... a party offers in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801(c)(2). "And hearsay is inadmissible in summary judgment proceedings to the same extent that it is inadmissible in a trial, except that affidavits and depositions,
First, Carmel argues that Mr. Park's statements reciting Judicial Security Inspector Robert Jackson's ("JSI Jackson") statements to Mr. Park in a phone conversation on August 7 or 8, 2012 are hearsay. [Filing No. 41 at 3.] In his declaration, Mr. Park relays several comments JSI Jackson made to him regarding JSI Jackson's communications with Carmel. Mr. Park relies on these statements as evidence of how Carmel was handling JSI Jackson's request for Mr. Park's personnel file — that is, to prove the truth of the matter asserted. [Filing No. 40 at 23-24.] Accordingly, this evidence constitutes inadmissible hearsay. See Fed. R. Evid. 801(c)(2). Carmel's objection to this evidence is
Second, Carmel objects to Mr. Park's statements regarding conversations Indianapolis Metropolitan Police Officer Bill Miller had with Carmel police officers as part of a background investigation. [Filing No. 41 at 3.] Mr. Park attests in his declaration that Officer Miller told Mr. Park that Officer Miller spoke with police officers from Carmel regarding Mr. Park's employment as a Carmel Police Officer. [Filing No. 39-1 at 7.] Again, Mr. Park relies on Officer Miller's out-of-court statements to prove the content of his communications with the police officers from Carmel, making these statement hearsay. See Fed. R. Evid. 801(c)(2). Carmel's objection to this evidence is
Mr. Park worked as a Police Officer for Carmel from January 2008 to February 2011, when Carmel terminated his employment. [Filing No. 32-1 at 3.] In December 2011, Mr. Park sued Carmel and Carmel's Chief of Police, Timothy Green, alleging among other things that his termination was the result of racial discrimination in violation of Title VII (the "Termination Suit"). See Park v. City of Carmel, No. 1:11-cv-1701-TWP-MJD (S.D.Ind.2011), Dkt. 1.
In early March 2012, while the Termination Suit was ongoing, Mr. Park applied for a position as a Court Security Office ("CSO") for the federal courts in the Southern District of Indiana. [Filing No. 39-1 at 2.] Mr. Park interviewed for the CSO position with Akal Security, Inc. ("Akal"), which contracts with the United State Marshal Service ("USMS") to provide CSOs for the federal courthouse. [Filing No. 39-1 at 2.] Although the open CSO position was filled by another candidate shortly after Mr. Park applied, Akal contacted Mr. Park in June 2012 to see if he was still interested in the CSO position. [Filing No. 39-1 at 2-3.] Mr. Park replied that he was still interested, and he filled out several additional application forms and traveled to the federal courthouse for another interview. [Filing No. 32-2; Filing No. 39-1 at 3.]
As part of the CSO application process, JSI Jackson from the USMS was assigned to conduct a background investigation on Mr. Park on July 24, 2012. [Filing No. 32-8 at 3-4.] The deadline for JSI Jackson
JSI Jackson stopped by the Carmel Police Department while in the area and left his card for the Carmel Chief of Police, Chief Green. [Filing No. 39-15 at 13.] Shortly thereafter, JSI Jackson and Chief Green spoke on the phone, and JSI Jackson informed Chief Green that he was conducting a background investigation on Mr. Park. [Filing No. 39-15 at 13.] Both Chief Green and JSI Jackson acknowledged the ongoing Termination Suit between Carmel and Mr. Park, therefore, Officer Green told JSI Jackson that if he needed anything regarding Mr. Park it would have to go through Carmel's city attorneys. [Filing No. 39-15 at 13.] Chief Green stated to JSI Jackson that if JSI Jackson sent Chief Green a formal request to review Mr. Park's personnel file, Chief Green would forward that request to the city attorneys. [Filing No. 39-15 at 13; Filing No. 39-19 at 9-10.]
JSI Jackson emailed Chief Green on August 2, 2012, officially requesting to review Mr. Park's personnel file. [Filing No. 32-10.] JSI Jackson did not state that he needed this information by a certain date or that his deadline for completing the background investigation was August 14, 2012. [Filing No. 32-8 at 10; Filing No. 32-8 at 13; Filing No. 32-10; Filing No. 32-12 at 2.] That same day, August 2, 2012, Chief Green forwarded JSI Jackson's email to Carmel City Attorney Douglas Haney, stating: "I have received the below request from the U.S. Marshalls [sic] Office to review Terminated Officer Park's personnel file regarding a job application. Since there is current litigation (Law Suit) pending I would request your recommendation before we proceed." [Filing No. 32-16 at 1.] This was consistent with Mr. Haney's directive in place at the time to all Carmel departments that, "whenever employees or former employees have made a legal claim against the City, [the departments] should not respond to inquiries about such persons while their claim is outstanding or still subject to review or appeal, but should instead refer all such inquiries to [him] as the City's chief legal officer." [Filing No. 32-13 at 2.] Mr. Haney did not discuss JSI Jackson's request with anyone; instead, he considered it to be a request for public records subject to Indiana's Access to Public Records Act ("APRA"), and "put it on [his] stack of things to do." [Filing No. 39-24 at 5; see Filing No. 32-13 at 2.]
On August 8, 2012, Mr. Park's attorney in the Termination Suit, Kimberly Jeselskis, sent the attorney representing Carmel in the Termination Suit, John Roy, an email asking him to look into JSI Jackson's request to review Mr. Park's personnel file because JSI Jackson had not yet received it. [Filing No. 32-17 at 2.] Mr. Roy forwarded the email to Mr. Haney, asking how Mr. Haney would like him to respond. [Filing No. 32-17 at 1.] Mr. Haney responded to Mr. Roy: "Let me respond to the public records request. Do you have a complete personnel file that I can use? I will only give Park what the law requires. Also, I need the records request form(s) that were served on the City." [Filing No. 32-17 at 1.] Mr. Roy forwarded Mr. Haney the records request JSI Jackson sent to Carmel, and told Mr. Haney that he did not have Mr. Park's complete personnel file yet. [Filing No. 32-17 at 1.]
That same day, August 8, 2012, Mr. Haney received news that his father was
In the meantime, JSI Jackson submitted his background investigation on Mr. Park to his supervisor on August 12 or 13, 2012. [Filing No. 32-8 at 10.] He did so having had no further communication with Carmel regarding his request for Mr. Park's personnel file. [Filing No. 32-8 at 10.] JSI Jackson wrote the following in the background check regarding Mr. Park's employment as a Carmel Police Officer: "A formal request was made via e-mail to Chief Green to review PARK's personnel file which was forwarded to the City of Carmel's attorneys. There has been no response from Carmel regarding the request." [Filing No. 39-17 at 34.] JSI Jackson's background investigation was then forwarded by his supervisor to the Chief of the Office of Court Security in Washington, D.C. [Filing No. 32-9 at 60.] The cover letter noted, "The Southern District o[f] Indiana has some reservations regarding CSO candidate PARK based on some of the findings in the background investigation particularly involving his firing from the Carmel Police Department. Because of the mixed information in CSO candidate PARK's background, the Southern District of Indiana will defer to [the Judicial Services Division] for final adjudication." [Filing No. 32-9 at 60.]
The Judicial Services Division adjudicator Donna Jackson prepared a Record of Suitability Determination for Mr. Park, which contained the follow recommendation: "Unsuitable. Misconduct in Employment is not mitigated because essential information was not provided. The investigator was unable to obtain 2 employment interviews, perform a record search and obtain information [from] his OPF from his previous employment with Carmel PD." [Filing No. 39-17 at 45.] This recommendation was approved on August 15, 2012. [Filing No. 39-17 at 46.] Mr. Park received a letter from Akal dated August 28, 2012, stating that the USMS informed Akal that Mr. Park "ha[s] been disqualified from the position of CSO due to background investigation resulting in unfavorable information." [Filing No 39-3 at 1.]
On August 22, 2012, Assistant Carmel City Attorney Ashley Ulbricht became aware of Ms. Jeselskis' inquiry regarding the status of JSI Jackson's record request. [Filing No. 39-27 at 3.] Ms. Ulbricht asked, among others, Mr. Haney and Chief Green whether anyone had received JSI Jackson's request, and Chief Green responded that he "sent this request to City Legal approximately 2 weeks ago via e-mail." [Filing No. 32-18 at 1-2.] Because Mr. Haney was soon leaving for Wisconsin to visit his father, he asked Ms. Ulbricht to respond to the record request even though she rarely handled such matters. [Filing No. 32-13 at 4; Filing No. 32-14 at 2.] Ms. Ulbricht spoke to Chief Green, who said he would send her Mr. Park's personnel file. [Filing No. 32-12 at 3; Filing No. 32-14 at 2.] On August 29, 2012, Chief Green's administrative assistant emailed Mr. Park's personnel file to Ms. Ulbricht. [Filing No. 39-22; Filing No. 39-23.] Mr. Haney told Ms. Ulbricht to take care of it "as soon as we can." [Filing No. 32-13 at 5; Filing No. 32-20 at 1.]
Ms. Ulbricht spent several hours on August 29, 30, and 31 redacting information from Mr. Park's personnel file that she
In his deposition in this case, JSI Jackson acknowledged that Carmel did not respond to his request for Mr. Park's personnel records in a timely enough fashion so that they could be included in his background investigation. [Filing No. 39-15 at 19.] But, as stated above, he also acknowledged that he never communicated to Carmel that he was operating under a deadline, let alone what that deadline was. [Filing No. 32-8 at 10; Filing No. 32-8 at 13; Filing No. 32-10; Filing No. 32-12 at 2.]
Mr. Park asserts one claim against Carmel, namely, a Title VII retaliation claim.
To prove his retaliation claim, Mr. Park must "demonstrate that `the desire to retaliate was the but-for cause of the challenged employment action.'" Ripberger v. Corizon, Inc., 773 F.3d 871, 881 (7th Cir. 2014) (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, ___ U.S. ___, 133 S.Ct. 2517, 2528, 186 L.Ed.2d 503 (2013)). This requires, among other things, Mr. Park to "produce evidence that a retaliatory motive actually influenced the decision-maker, not merely that it could have." Brown v. Advocate S. Suburban Hosp., 700 F.3d 1101, 1108 (7th Cir.2012). "The logic is that an employee would be less likely to engage in statutorily protected activity — like suing for discrimination — if the employer could exact some sort of revenge outside of the workplace or when the employee changed jobs." Matthews v. Wis. Energy Corp., 534 F.3d 547, 558 (7th Cir. 2008).
"A plaintiff can establish retaliation using a direct or indirect method of proof." Northington v. H & M Int'l, 712 F.3d 1062, 1065 (7th Cir.2013). Mr. Park focuses on the direct method. [Filing No. 40 at 18.] The direct method requires him to adduce evidence that he "(1) engaged in statutorily protected activity; (2)[] suffered an adverse employment action taken by the employer; and (3) there was a causal connection between the two." Northington, 712 F.3d at 1065. Carmel does not dispute that Mr. Park's Termination Suit against it constitutes a statutorily protected activity. [Filing No. 33 at 14.] The parties dispute most other aspects of Mr. Park's claim. The Court finds it most prudent to address an issue running throughout the parties' briefing: whether Mr. Park can establish that Carmel acted with a retaliatory motive.
Carmel argues that there is no evidence that its compliance with JSI Jackson's request
Mr. Park responds that Carmel effectively "refus[ed] to provide a job reference" in retaliation for his filing of the Termination Suit against it. [Filing No. 40 at 19.] Specifically, Mr. Park maintains that his evidence "shows that [Mr.] Haney had no intention of ever responding to the so-called public record request," and that Carmel's failure to respond precluded him from obtaining the CSO position.
Carmel replies that Mr. Park has failed to show that any of Carmel's actions were done with retaliatory intent. [Filing No. 41 at 7.] Specifically, Carmel points out that Mr. Park's best evidence of retaliatory intent is inadmissible hearsay, leaving him only with evidence that Carmel did not respond to JSI Jackson's request in time for him to comply with a deadline of which Carmel was unaware. [Filing No. 41 at 8-9.]
Based on the admissible evidence presented, no reasonable jury could conclude that Carmel acted with retaliatory animus in handling JSI Jackson's request to review Mr. Park's personnel file. At bottom, the reason for this is simple: the undisputed evidence reveals that Carmel was unaware that JSI Jackson was operating under a deadline to complete Mr. Park's background investigation, let alone what that deadline was. [Filing No. 32-8 at 10; Filing No. 32-8 at 13; Filing No. 32-10; Filing No. 32-12 at 2.] Given this, no reasonable jury could conclude that Carmel's turn-around time of twenty-nine days to respond to JSI Jackson's request was motivated by a desire to retaliate against Mr. Park. Indeed, a close look at Carmel's specific conduct during the pendency of JSI Jackson's request undermines any notion that Carmel acted with retaliatory animus.
JSI Jackson's official request to review Mr. Park's personnel file was emailed to Chief Green on August 2, 2012. [Filing No. 32-10.] Critically, JSI Jackson never communicated to anyone affiliated with Carmel that he was operating under a deadline. [Filing No. 32-8 at 10; Filing No. 32-8 at 13; Filing No. 32-10; Filing
Six days later, on August 8, Mr. Haney received an email from Mr. Roy inquiring as to the status of JSI Jackson's request. [Filing No. 32-17 at 1-2.] Mr. Haney responded that same day, saying that he would give JSI Jackson what the APRA requires and asking whether he had Mr. Park's complete personnel file, but Mr. Roy did not at that time. [Filing No. 32-17 at 1.] During the next twenty-four days — from August 8 through August 31 (the day Carmel sent JSI Jackson Mr. Park's personnel file) — Mr. Haney was out of town on vacation or visiting his terminally ill father for fourteen of those days. [Filing No. 32-13 at 4.] In fact, Mr. Haney was visiting his father from August 9-12, [Filing No. 32-13 at 4], and unbeknownst to him or anyone else at Carmel, JSI Jackson submitted Mr. Park's background investigation to his supervisor on August 12 or 13. [Filing No. 32-8 at 10.] Thus, at the time JSI Jackson submitted Mr. Park's background investigation, there is no evidence suggesting that Carmel intentionally delayed responding to the request for retaliatory reasons. Quite the opposite is true: a few days before the investigation was submitted, Mr. Haney stated he would give JSI Jackson what was required and asked whether Mr. Park's full personnel file was available. [Filing No. 32-17 at 1.]
Carmel's conduct after JSI Jackson submitted the background investigation reinforces this conclusion because Carmel continued to respond to JSI Jackson's request. On August 22, 2012, Ms. Ulbricht became aware of JSI Jackson's request and asked Mr. Haney about its status. [Filing No. 32-18 at 1-2; Filing No. 39-27 at 3.] Mr. Haney was again leaving for Wisconsin to be with his ailing father, so he asked Mr. Ulbricht to handle the request "as soon as we can." [Filing No. 32-13 at 4-5; Filing No. 32-14 at 2; Filing No. 32-20 at 1.] That same day, Mr. Ulbricht spoke with Chief Green, who said he would send her Mr. Park's full personnel file. [Filing No. 32-12 at 3; Filing No. 32-14 at 2.] Ms. Ulbricht received Mr. Park's personnel file on August 29, [Filing No. 39-22; Filing No. 39-23], spent several hours on August 29, 30, and 31 redacting the information considered privileged under Indiana law, [Filing No. 32-14 at 3], and mailed the 176-page file to JSI Jackson on August 31, [Filing No. 32-11 at 1; Filing No. 32-14 at 3.] Again, Carmel sent this response to JSI Jackson believing that it had fully and timely complied with his request; Carmel had no idea that the background investigation was already complete. [Filing No. 32-8 at 10; Filing No. 32-8 at 13; Filing No. 32-10; Filing No. 32-12 at 2.]
Mr. Haney's reliance on his understanding of the APRA further demonstrates Carmel's lack of retaliatory intent. The APRA requires a public agency to respond to a public records request within a "reasonable time after the request is received."
The above evidence demonstrates that Mr. Park is simply incorrect in asserting that "record evidence shows that Haney had no intention of ever responding to the so-called public record request." [Filing No. 40 at 21; Filing No. 40 at 24.] First and foremost, it is patently false to say that Mr. Haney had "no intention of ever responding" when Mr. Haney explicitly directed Ms. Ulbricht to respond to the request "as soon as we can," and she did so. [Filing No. 32-11 at 1; Filing No. 32-14 at 3; Filing No. 32-20.]
Second, the evidence on which Mr. Park relies to support his argument is unpersuasive. Mr. Park asserts that Mr. Haney "never did anything" to respond to JSI Jackson's request. [Filing No. 40 at 21; Filing No. 40 at 24-25.] Again, the above evidence demonstrates that this is simply untrue: Mr. Haney directed Ms. Ulbricht to respond to the request. [Filing No. 32-13 at 5.] To the extent that Mr. Park is arguing that because Mr. Haney did not drop everything and immediately respond to JSI Jackson's request, a jury could not infer retaliatory animus from this fact, especially given that he did not know of JSI Jackson's deadline. Any argument that Mr. Haney did not move through his stack of work or jump straight to JSI Jackson's request to intentionally delay responding to the request is mere speculation, which does not assist Mr. Park in avoiding summary judgment. See Brown, 700 F.3d at 1108 ("[O]ur favor toward the nonmoving party on summary judgment does not extend to drawing inferences that are supported by only speculation or conjecture."); cf. Ripberger, 773 F.3d at 881 ("Circumstantial evidence must point directly to a discriminatory reason for the employer's action.") (citation and quotation marks omitted).
In further support of his argument, Mr. Park also alleges that the evidence shows that Mr. Haney "responds to public record requests within one (1) business day."
In conclusion, to succeed on his Title VII retaliation claim, Mr. Park must "produce evidence that a retaliatory motive actually influenced the decision-maker, not merely that it could have." Brown, 700 F.3d at 1108. He has produced no such evidence. Given that Carmel and Mr. Park were involved in litigation against one another, Carmel treated JSI Jackson's request to review Mr. Park's personnel file as a public records request and, twenty-nine days after the request, sent JSI Jackson a redacted version of Mr. Park's personnel file on August 31, 2012. The problem with Carmel's conduct from Mr. Park's perspective is that, due to an August 14, 2012 deadline, JSI Jackson had already submitted Mr. Park's background investigation. But the problem for Mr. Park's Title VII retaliation claim is that there is no evidence that Carmel was aware of the deadline. This fact, along with the evidence that Carmel complied with JSI Jackson's request in the normal course of business, forecloses a reasonable jury from concluding that Carmel's handling of JSI Jackson's request was motivated by retaliatory animus toward Mr. Park's Termination Suit. Accordingly, Carmel is entitled to summary judgment on Mr. Park's Title VII retaliation claim. See id. (granting summary judgment to the defendant on the plaintiffs' Title VII retaliation claim because the plaintiffs failed to provide "evidence to show that [the defendants] were motivated by a retaliatory animus").
For the reasons explained, Carmel's Motion for Summary Judgment is
