THERESA L. SPRINGMANN, District Judge.
The Plaintiff, Gloria D. Terry, has filed a Second Amended Complaint [ECF No. 23] against the Defendant, Gary Community School Corporation, alleging violations under Title VII of the Civil Rights Act of 1964 (Counts I and IV), the Equal Pay Act of 1963 (Counts II and IV), the Fourteenth Amendment (Count III), and Indiana's Open Door Law (Count V). This matter is now before the Court on the Plaintiff's Motion for Partial Summary Judgment [ECF No. 31] as to Count V. For the reasons stated in this Opinion and Order, the Court finds that the Plaintiff is entitled to judgment as a matter of law.
The following facts are undisputed. On February 19, 2015, and February 24, 2015, the Defendant's Board of Trustees (the "Board") held executive sessions. At each session, the Board discussed, among other things, "[an] individual's status as an employee" prior to termination, as indicated in a two public notices, both dated February 24, 2015. (Public Notices, ECF Nos. 32-1-32-2.) On February 24, 2015, the Board held a regular meeting (Agenda, ECF No. 32-3), at which it voted unanimously to accept a "consent agenda." (Minutes, ECF No. 32-4.) The consent agenda included the termination of six administrators, one of whom was the Plaintiff.
On April 23, 2015, the Plaintiff filed a Formal Complaint with the Public Access Counselor (the "PAC"), alleging that the Defendant violated Indiana's Open Door Law by failing to properly certify that no subject matter was discussed in the executive sessions other than the subject matter specified in the public notices. On May 6, 2015, the PAC opined that the Defendant did, in fact, violate the Open Door Law. (Advisory Op., ECF No. 23-2.)
On September 2, 2015, the Plaintiff filed a Motion for Partial Summary Judgment [ECF No. 31] as to the Plaintiff's Open Door Law claim (Count V), along with a Brief in Support [ECF No. 32] and several exhibits [ECF Nos. 32-1-32-5]. The Plaintiff then filed a Notice of Supplemental Authority [ECF No. 59] on December 30, 2015. The Defendant filed a Response [ECF No. 68] on March 1, 2016, along with several exhibits [ECF Nos. 68-1-68-7]; and the Plaintiff filed a Reply on March 2, 2016. The Motion is now fully briefed and ripe for ruling.
Summary judgment is warranted when "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). Summary judgment is the moment in litigation where the nonmoving party is required to marshal and present the court with evidence on which a reasonable jury could rely to find in his favor. Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). A court should only deny a motion for summary judgment when the nonmoving party presents admissible evidence that creates a genuine issue of material fact. Luster v. Ill. Dep't of Corrs., 652 F.3d 726, 731 (7th Cir. 2011) (first citing United States v. 5443 Suffield Terrace, 607 F.3d 504, 510 (7th Cir. 2010), (then citing Swearnigen-El v. Cook Cnty. Sheriff's Dep't, 602 F.3d 852, 859 (7th Cir. 2010)). A court's role in deciding a motion for summary judgment "is not to sift through the evidence, pondering the nuances and inconsistencies, and decide whom to believe. [A] court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial." Waldridge v. Am. Heochst Corp., 24 F.3d 918, 920 (7th Cir. 1994). Material facts are those that are outcome determinative under the applicable law. Smith v. Severn, 129 F.3d 419, 427 (7th Cir. 1997). Although a bare contention that an issue of material fact exists is insufficient to create a factual dispute, a court must construe all facts in a light most favorable to the nonmoving party, view all reasonable inferences in that party's favor, see Bellaver v. Quanex Corp., 200 F.3d 485, 491-92 (7th Cir. 2000), and avoid "the temptation to decide which party's version of the facts is more likely true," Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003).
The purpose of the Open Door Law is for "official action of public agencies [to] be conducted and taken openly unless otherwise expressly provided by statute, in order that the people may be fully informed." Ind. Code § 5-14-1.5-1. The law requires the governing body of a public agency to give "[p]ublic notice of the date, time, and place of any meetings, executive sessions, or of any rescheduled or reconvened meeting." § 5-14-1.5-5(a).
The Plaintiff contends that, although the Defendant properly certified in their memoranda that no subject matter was discussed in the executive sessions other than the subject matter discussed in the public notices, it failed to make the same certification in their minutes from the Board's regular meeting held on February 24, 2015. For support, the Plaintiff submitted a copy of the minutes [ECF No. 32-4], which is signed and dated April 14, 2015. A review of the minutes, as presented by the Plaintiff, shows that the Defendant failed to include a certification as prescribed by § 5-14-1.5-6.1(d).
The Defendant, without submitting any evidence to the contrary, argues that it complied with the Open Door Law, while also arguing—rather inexplicably—that summary judgment is inappropriate because the PAC was sent unsigned copies of the minutes and records at issue. As noted above, summary judgment is the moment in litigation where the nonmoving party is required to marshal and present the court with evidence on which a reasonable jury could rely to find in his favor. Goodman, 621 F.3d at 654. Absent the presentation of evidence creating a genuine issue of material fact as to whether the minutes lacked a proper certification, see Thomas v. Christ Hosp. & Med. Ctr., 328 F.3d 890, 892-93 (7th Cir. 2003) ("Conclusory allegations alone cannot defeat a motion for summary judgment.") (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888-89 (1990)), the Plaintiff is entitled to judgment on Count V.
As part of the analysis, the Court has the discretion to declare void any policy, decision, or final action
Id. at 199 (citing § 5-14-1.5-7(d)(1)-(3)). Although the Open Door Law is to be construed broadly, Indiana courts have held "that substantial compliance with the [Open Door Law] is sufficient, and not every technical violation of the [Open Door Law] will require a voiding of governmental action." Hinojosa v. Bd. of Pub. Works & Safety, 789 N.E.2d 533, 543 (Ind. Ct. App. 2003) (citing Riggin v. Bd. of Trs., 489 N.E.2d 616 (Ind. Ct. App. 1986).
The Plaintiff contends that, in light of the above factors, the Defendant's final action to terminate the Plaintiff should be declared void. For support, she relies on Warren v. Board of School Trustees, 49 N.E.3d 559 (Ind. Ct. App. 2015), where the court voided a school board's final action to terminate a plaintiff teacher due to an Open Door Law violation. In Warren, prior to its termination of the plaintiff, the board issued a public notice stating that an executive session would begin at 5:00 P.M. on December 20, 2012, and the "regular session" would begin at 7:00 P.M., "or immediately following the [e]xecutive [s]ession, whichever comes later." Id. at 567 (internal quotation marks and citation omitted). But in actuality, the public meeting began at approximately 2:30 A.M. the following day. Id. The court found that the board convened the regular session "at a time unreasonably departing from the time stated in the notice." Id.; Ind. Code § 5-14-1.5-5(h) ("Notice has not been given in accordance with this section if a governing body of a public agency convenes a meeting at a time so unreasonably departing from the time stated in its public notice that the public is misled or substantially deprived of the opportunity to attend, observe, and record the meeting.").
Applying the three-factor test, the court of appeals concluded that the board's failure to satisfy the Open Door Law's public notice requirement amounted to more than "a mere technical violation." Warren, 49 N.E.3d at 568.
Id. (citation omitted).
In the Court's view, this case is a far cry from Warren. While the Court certainly agrees with the PAC that the executive session "los[t] a bit of legitimacy" (Advisory Op. at 2, ECF No. 23-2) due to the Defendant's Open Door Law violation, the record does not contain—and the Plaintiff has not pointed to—any evidence indicating that the violation affected the substance of the Board's final action, denied or impaired access to any meetings that the public had a right to observe, or prevented or impaired public knowledge or understanding of what occurred at the executive sessions.
Accordingly, it is worth repeating that "not every technical violation of the [Open Door Law] will require a voiding of governmental action." Hinojosa, 789 N.E.2d at 543. Based on the case record and the arguments presented, coupled with the Defendant's substantial compliance with the Open Door Law, the Court sees no wisdom in exercising its discretionary authority to void the Board's final action.
Pursuant to Ind. Code § 5-14-1.5-7(f), a court shall award reasonable attorney's fees, costs, and other reasonable expenses to the prevailing party if: (1) the plaintiff prevails; or (2) the defendant prevails and the court finds that the action is frivolous and vexatious. However, "[t]he plaintiff is not eligible for the awarding of attorney's fees, court costs, and other reasonable expenses if the plaintiff filed the action without first seeking and receiving an informal inquiry response or advisory opinion from the public access counselor, unless the plaintiff can show the filing of the action was necessary to prevent a violation of this chapter." Id. Although there is no dispute that the Plaintiff sought and received a favorable advisory opinion from the PAC, the Court, for the sake of efficiency and judicial economy, will withhold any ruling on the awarding of attorney's fees and costs until this matter is fully resolved.
For the reasons stated above, the Court GRANTS the Plaintiff's Motion for Partial Summary Judgment [ECF No. 31], but DECLINES to exercise its discretionary authority to void the Defendant's final action to terminate the Plaintiff. The Court also DENIES the Defendant's Motion to Strike Plaintiff's Exhibit 1 and Exhibit 2 [ECF No. 46].
