WILLIAM T. LAWRENCE, District Judge.
This cause is before the Court on the Defendant's Motion for Summary Judgment for Failure to Exhaust Administrative Remedies (Dkt. No. 27). The motion is fully briefed, and the Court, being duly advised,
Federal Rule of Civil Procedure 56(a) provides that summary judgment is appropriate "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." In ruling on a motion for summary judgment, the admissible evidence presented by the non-moving party must be believed, and all reasonable inferences must be drawn in the non-movant's favor. Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) ("We view the record in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor."). The non-moving party bears the burden of specifically identifying the relevant evidence of record, and "the court is not required to scour the record in search of evidence to defeat a motion for summary judgment." Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001).
Plaintiff Michael S. Dowell was employed as a health and physical education teacher at the Madison Junior High School from the fall of 2003 through early June 2013. He also served as athletic director at the junior high school and, over time, performed various coaching roles at both the junior high and high schools. On May 24, 2013, Dowell received notice from his principal that, due to a "justifiable decrease in the number of teaching positions," i.e., a reduction in force, the principal had made a preliminary decision not to renew his contract for the 2013-14 school year. On May 25, 2013, Dowell requested and, some days later, received a conference with the superintendent of Madison Consolidated Schools ("District") to appeal the principal's preliminary decision. On May 30, 2013, Dowell received the superintendent's letter notifying him that he was upholding the principal's preliminary decision. The letter also notified Dowell that he had the option to appeal the decision to the Board, but Dowell chose not to pursue that appeal. In July 2013, one of the other health and physical education teachers at the junior high school resigned and Dowell applied for the position after the principal notified him of the cancellation of his contract. He decided not to request a meeting with the Board "so that he would not be viewed in a bad light when he applied for the position." The principal eventually notified Dowell that he was not hired for the open position.
Dowell pleads four legal claims regarding the cancellation of his contract. First, by "impairing with Mr. Dowell's rights to an indefinite contract on the basis of his tenure" (Dkt. No. 1, ¶ 22), the cancellation violated Article I, § 10 of the United States Constitution ("No State shall . . . pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts. . . .").
At issue before the Court in the instant motion is whether Dowell has forfeited all of his claims because he failed to exhaust his administrative remedies before bringing suit.
Non-prisoner claimants generally are not required to exhaust state judicial or administrative remedies before pursuing federal civil-rights claims under 42 U.S.C. § 1983. Haywood v. Drown, 556 U.S. 729, 766 (2009); Patsy v. Board of Regents of the State of Florida, 457 U.S. 496 (1982); Horsley v. Trame, 808 F.3d 1126, 1129 (7th Cir. 2015). The Board cites Gluck v. WNIN Tri-State Public Media, Inc., 879 F.Supp.2d 999, 1004-05 (S.D. Ind. 2012), and the district court's decision in Horsley 61 F.Supp.3d 788, 791 (S.D. Ill. 2014), aff'd, 808 F.3d 1126 (7th Cir. 2015), apparently as authority for its argument that Dowell was required to exhaust his federal constitutional claim. But Gluck ruled only that a claimant suing for violation of a federal regulation must first exhaust the prescribed federal regulatory process for obtaining administrative relief, and Horsley explicitly held that the plaintiff in that case was not required to exhaust her state administrative remedies before pursuing a federal Second Amendment claim. Therefore, Dowell was not required to exhaust state remedies before pursuing his federal claim that the Board's cancellation of his contract violated his rights under Article I, § 10 of the U. S. Constitution.
Indiana generally requires exhaustion of administrative remedies before seeking judicial relief, even when a claimant pleads violations of the state's constitution.
Indiana Dept. of Environmental Management v. Twin Eagle, LLC, 798 N.E.2d 839, 844 (Ind. 2003) (citations omitted).
LHT Capital, LLC v. Indiana Horse Racing Commission, 895 N.E.2d 124, 127 (Ind. Ct. App. 2008) (citations omitted); see also John C. & Maureen G. Osborne Revocable Family Trust v. Town of Long Beach, 78 N.E.3d 680, (Ind. Ct. App. 2017) ("Under Indiana law, `[i]t is wellestablished that, if an administrative remedy is available, it must be pursued before a claimant is allowed access to the courts,' as `failure to exhaust administrative remedies deprives the trial court of subject matter jurisdiction.'"). Dowell was required to exhaust available administrative remedies before seeking judicial relief for his state-law claims.
In Indiana, cancellation of teachers' contracts is governed by Ind. Code chapter 20-28-7.5. The version that was in effect during the cancellation of Dowell's contract—late May 2013 through early June 2013—reads, in relevant part, as follows:
P.L. 90-2011, § 31 (effective July 1, 2011); P.L. 286-2013, §§ 87 and 88 (effective July 1, 2011 (retroactive)).
Under this version of chapter 7.5, an Indiana teacher's contract continued in force unless the school corporation refused to continue it under the chapter, Ind. Code § 20-28-7.5-6(1), and any teaching contract could be cancelled because of a "justifiable decrease in the number of teaching positions," i.e., a RIF, Ind. Code §§ 20-28-7.5-1(c) and (e)(3). In summary, the procedure for cancelling Dowell's contract had five steps: (1) the principal notified the teacher of her preliminary decision, (2) the teacher could request and receive a private conference with the superintendent, (3) after the conference, the superintendent made a recommendation to the Board, (4) the teacher could request and receive a private conference with the Board, and (5) the Board made a final decision. The Board argues that Dowell failed to exhaust his remedies and, thus, forfeited his state claims when he chose not to pursue his final avenue of relief by requesting a private conference with the Board. It is undisputed that Dowell did not request that private conference.
Dowell argues several reasons why he did not fail to exhaust his remedies. First, he argues that he was not required to exhaust his claims because the text of Ind. Code § 20-28-7.5-2 does not require teachers to pursue exhaustion; rather, it only gives them the right, the option, to have private conferences with superintendents and governing bodies. He cites no authority for the proposition that a statutory or regulatory process must use mandatory language before exhaustion is required, possibly because the law is against it: "Even when neither statute nor agency rule specifically mandates exhaustion as a prerequisite to judicial review, the general rule is that a party is not entitled to judicial relief for an alleged or threatened injury until the prescribed administrative remedy has been exhausted." Austin Lakes Joint Venture v. Avon Utilities, Inc., 644 N.E.2d 641, 644 (Ind. 1995).
Second, Dowell argues that Ind. Code § 20-28-7.5-2(b) "specifically states that the request for the private conference does not apply `[f]or a cancellation of a teacher's contract for . . . a reduction in force.' The notification required for cancellation only applies to situations other than cancellations due to a reduction in force." Dkt. No. 33 at 5. He is simply wrong. Section 2(b) does not contain any statement, direct or indirect, about the applicability of the right to private conferences to RIF cancellations. Instead, Dowell's argument is based solely on inference from § 2(b)'s exclusion of RIF cancellations from the requirement that principals' notices inform teachers of their right to request a private conference with the superintendent, but the inference is unreasonable. Regardless of the legislature's reason for excluding RIFs from § 2(b)'s notice requirement, no language in the statute excludes RIFed teachers from pursuing private conferences with the superintendent or the Board. Indeed, § 2(f) specifically provides that a RIFed teacher may request an "additional private conference" with the governing body no later than five days after he has had an "initial private conference" with the superintendent. Ind. Code § 20-28-7.5-2(f) (applies to teachers facing cancellation proceedings under § 1(e)(3) ("justifiable decrease in the number of teaching positions")). Moreover, § 2(f) and (g) allow teachers facing cancellations for any of the permitted reasons under § 1(e) to request an additional private conference with the governing body without a requirement of any notice. Dowell had a right under chapter 7.5 to request a private conference with the Board before a final decision on the cancellation of his contract.
Third, Dowell argues that the District's "Reduction in Force (RIF) Policy" (a copy of which he submitted with his response to the Board's motion (Dkt. No. 33-3)) does not require exhaustion and that the Policy governs, "even though it conflicts with IC 20-28-7.5-1(d)." Dkt. No. 33 at 6. He asserts that the District's policy "superseded IC 20-28-7.5-1(d) because the policy was bargained for contractually" and "[t]he legislature does not have the right to interfere with the parties' right to contract." Dkt. No. 33 at 6-7. He attached a copy of his contract to his response. Dkt. No. 33-1.
Dowell only asserts that a school corporation's RIF policy supersedes Ind. Code chap. 20-28-7.5 when the policy was, in some manner, bargained for. He cites no authority for this far-reaching proposition. Absent explicit and clear authority to the contrary, the Court will presume that state statutes prevail over school corporations' policies and teachers' contracts where they conflict or are inconsistent. See Ind. Code §§ 20-26-3-4 and 20-26-3-5
In addition, the District's RIF policy and Dowell's 2012-13 teaching contract confirm the supremacy of the statute. At its start, the policy provides that, "[w]hen a reduction in force is determined to be needed under this policy, the provisions of I.C. 20-28-7.5 will be followed regardless of past practice," (Dkt. No. 33-3 at 1 (preamble)), and Dowell's contract states that "[t]his contract may be cancelled during its term for any of the grounds set forth in Ind. Code 20-28-7.5-1(e) pursuant to the procedures set forth in Ind. Code 20-28-6-2(d) and Ind. Code 5-14-3," (Dkt. No. 33-1, ¶ 6). There is no other term of Dowell's contract that addresses contract cancellation or the District's RIF policy. While Dowell is correct that, with regard to the teacher appeals process, the District's RIF policy appears to contradict Ind. Code § 20-28-7.5-2 in one respect—namely, it provides that, following a teacher's conference with the superintendent, the superintendent's "initial determination will be presented to the Board of Trustees for final action" (Dkt. No. 33-3, ¶ (A)4), thus skipping § 2(f)'s required opportunity for a private conference with the Board—in instances of conflict, the statutory terms prevail, absent contrary authority not cited by Dowell.
Fourth, citing Ind. Code § 20-28-7.5-2(b) and the District's RIF Policy, Dowell argues that he "had no notice that he was required to meet with the Board of Trustees or that he was required to exhaust remedies. To hold him to this standard, without notice, would be unfair." Dkt. No. 33 at 8. He also contends that §2(b)'s exemption of RIF cancellations from its notice requirement "equitably estops the school from arguing that teachers are required to exhaust rights they don't even know they have." Dkt. No. 33 at 9. Because Dowell does not cite any supporting authority or otherwise develop a legal due process or equitable estoppel argument, the arguments are forfeited.
Alternatively, his argument is meritless. As already noted, Indiana law requires exhaustion of administrative remedies, gives Dowell the right to a private conference with the Board, and mandates that the statute prevails over contrary ordinances, rules, policies, or practices. In addition, the District's RIF Policy specifically provides that the statute governs RIF-based contract cancellations. Finally, in this case, the superintendent's letter to Dowell upholding the principal's preliminary decision specifically notified him that he was entitled to a private conference with the Board. Dkt. No. 33-5. Therefore, Dowell had sufficient notice of his right to request a private conference with the Board; he, at least, had sufficient information to ascertain his appeal rights.
Fifth, Dowell argues that he was not required to exhaust his remedies because pursuing a conference with the Board would have been futile for two reasons: first, the Board could offer no administrative remedy for his constitutional claims and, second, the Board takes its direction from the superintendent and the principal and both were hostile toward him. As mentioned above, Indiana law requires exhaustion even when the issues are constitutional because it allows an administrative agency the opportunity to correct its own mistakes, find facts, develop the record, and resolve the issues on non-constitutional grounds. Second, Dowell fails to explain why he believes that the Board "takes its direction" from the superintendent and he provides no supporting evidence. The only evidence that he cites to show that the superintendent and principal were hostile to him and that they would use their control of the Board to render a private conference with the Board futile is the principal's failure to hire him, post-RIF, for the open physical education teaching position in the junior high school. As noted, Dowell alleges that he did not receive a telephone call or an interview in response to his application, despite his favorable evaluations and awards.
Dowell's claim is grounded on no more than speculation and supposition. The facts on which he relies do not support a reasonable inference that pursuing a private conference with the Board would have been futile. Dowell did request and attend a private conference with the superintendent, accompanied by a representative, despite his current characterization of that exercise as futile. Even more important, however, is that he pled that "[b]ecause he knew there would be a job opening at the junior high school, in his department, he decided not to request a meeting with the Board so that he would not be viewed in a bad light when he applied for the position," Dkt. No. 1, ¶ 14, which directly contradicts his current position.
Dowell has failed to show that exhaustion of the administrative process with respect to his state claims was futile and he has pled himself out of that argument.
Defendant's Motion for Summary Judgment for Failure to Exhaust Administrative Remedies (Dkt. No. 27) is
SO ORDERED.
