Summary
stating that IPD officer had no property interest affected by suspension of less than ten days
Summary of this case from McGivern v. City of IndianapolisOpinion
Cause No. IP01-0273-C-H/K
February 4, 2003
ENTRY ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Plaintiff Frances L. Ashton, a sergeant with the Indianapolis Police Department (IPD), brought this action after being disciplined several times within a thirteen month period. Ashton has brought a host of claims against the City of Indianapolis and several other defendants. Ashton asserts that she was discriminated against on the basis of sex, forced to endure a hostile work environment, and disciplined in retaliation for her complaints about alleged discrimination, all in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Ashton further asserts claims under 42 U.S.C. § 1983, alleging that the defendants are liable for violating her First and Fourteenth Amendment rights. She has also brought supplemental claims under the Indiana Constitution and state common law for intentional infliction of emotional distress and for defamation.
Defendants filed a motion for summary judgment on all claims, and have raised numerous objections to plaintiff's factual submissions. For the reasons explained below, defendants' objections are overruled, but defendants' motion for summary judgment is granted on all claims.
Summary Judgment Standard
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, summary judgment is not a substitute for a jury's determination about credibility. Under Rule 56(c) of the Federal Rules of Civil Procedure, the court should grant summary judgment if and only if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Jay v. Intermet Wagner Inc., 233 F.3d 1014, 1016 (7th Cir. 2000).
On a motion for summary judgment, the moving parties must first come forward and identify those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, that the parties believe demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving parties have met the threshold burden of supporting the motion, the opposing party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
In determining whether a genuine issue of material fact exists, the court must construe all facts in the light most favorable to and draw all reasonable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Haefling v. United Parcel Serv., Inc., 169 F.3d 494, 497 (7th Cir. 1999). The existence of "some alleged factual dispute between the parties," or "some metaphysical doubt," however, does not create a genuine issue of fact. Piscione v. Ernst Young, L.L.P., 171 F.3d 527, 532 (7th Cir. 1999). The proper inquiry is whether a rational trier of fact could reasonably find for the party opposing the motion with respect to the particular issue. See, e.g., Jordan v. Summers, 205 F.3d 337, 342 (7th Cir. 2000).
Although intent and credibility are often critical issues in employment discrimination cases, there is no special version of Rule 56 that applies only to them. See, e.g., Alexander v. Wisconsin Dep't of Health and Family Serv., 263 F.3d 673, 681 (7th Cir. 2001); Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997). In an employment discrimination case, as in any case, the court must carefully view the evidence in the record in the light reasonably most favorable to the non-moving party and determine whether there is a genuine issue of material fact. See Haugerud v. Amery School Dist., 259 F.3d 678, 689 (7th Cir. 2001) (same standard applies to any type of case).
Preliminary Matters
I. Abandoned Claims
In her reply to defendants' motion for summary judgment, plaintiff abandoned the following claims: claims against Marion County, and claims against Brown, Blankenship, and Bent in their individual capacities. Pl. Br. n. 1. Plaintiff also acknowledged that no private right of action for damages exists under the Indiana Constitution, that punitive damages cannot be recovered against a governmental entity in a civil rights action, and that claims arising from the sexual harassment complaint that she filed in 1990 are time barred. Id. As a result, defendants' motion for summary judgment is granted as to these claims. The remaining claims therefore are the following claims against the City of Indianapolis: Title VII sex discrimination and retaliation claims, § 1983 claims for violations of Ashton's First and Fourteenth Amendment rights, and state law claims for defamation and intentional infliction of emotional distress.
II. The Factual Record on Summary Judgment
The defendants have has raised numerous objections to plaintiff's evidence, arguing that plaintiff's statement of facts "is rife with inadmissible evidence" and that such evidence should be excluded from the record for purposes of summary judgment. Def. Reply at 2.
Defendants argue that numerous statements offered by plaintiff to defeat summary judgment are or contain inadmissible hearsay. Hearsay is inadmissible in summary judgment proceedings to the same extent that it would be inadmissible at trial. Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir. 1997).
However, the following statements that defendants have objected to fall outside the definition of hearsay: (1) the statement allegedly made by former IPD supervisor Doris Conley in 1990 or 1991 that Ashton could file a grievance but that it would stay with her throughout her career; (2) the statement allegedly made by Sergeant Earnest Hudson, Jr. in 1991 that Ashton should seek professional counseling; (3) the statement allegedly made by Sergeant John Hoenstine in 2002 at Board of Captains hearing; (4) the statement allegedly made by Deputy Chief James Campbell on May 18, 2000 regarding Ashton's transfer; (5) the statement allegedly made by Communications Center Supervisor Larry Jefferson in 2001; (6) the statement allegedly made by Lieutenant Brian Nanavaty that he disagreed with further disciplinary action being taken against Ashton; (7) statements allegedly made by Mike Romansky in 2001 at the Board of Captains Meeting; (8) statements allegedly made by Sergeant Wolfe; and (9) the statements allegedly made by Patrol Officer Bruce Henry, AAO regarding the IPD disciplinary statistics he compiled during his investigation.
These statements are excluded from the definition of hearsay because they were made "by a person authorized by the party to make a statement concerning the subject" or were made "by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship." F.R.E. 801(d)(2)(C) (D); see Aliotta v. National Railroad Passenger Corp., ___ F.3d ___, 2002 WL 31911067, *4 (7th Cir. 2003) (in the employment discrimination context, the declarant must be involved in the decision making process affecting the employment action involved in order for his or her statements to qualify as having been made within the scope of employment). Though several of these individuals may not have had final decision making authority, all were involved either in investigations related to Ashton's conduct or the disciplinary process. The same is true for statements made by Communications Center supervisors, who as part of the IPD, wrote inter-department communications concerning Ashton's conduct or were involved in the investigations related to Ashton's conduct.
The defendants have asserted several additional objections, which the court overrules. Defendants' speculation objection is overruled because the record evidence establishes a foundation for each of the statements objected to by the defendants. Similarly, defendants' authentication objection is overruled. Defendants argue that the Inter-Department Communication from Patrol Officer Bruce Henry, Pl. Ex. 20, and the Inter-Department Communications from Sergeant Earnest Hudson, Jr. are not properly authenticated. These documents, however, are authenticated by Ashton's deposition testimony, which the defendants submitted, and by Ashton's affidavit. See Ashton Dep. 205; Ashton Aff. ¶¶ 4-5. Finally, defendants have raised, though not argued, a Daubert objection to Henry's memorandum. (This objection is curious given that the defendants also included Henry's memorandum in their own factual submissions. See Ashton Dep., Def. Ex. 20.) The defendants' objection is overruled. Here, the credibility of the memorandum based on attribution to IPD outweighs the risk of scientific unreliability. See Aliotta, ___ F.3d at ___, 2002 WL 31911067, *5 n. 4 ("Sometimes, credibility based on attribution to the party against whom a statement is used will seem more persuasive because of its damaging quality than less persuasive because of the risk of scientific unreliability. Or justice and equity may demand attribution to a party and admissibility regardless of any Rule 702 considerations.").
Undisputed Facts
For purposes of defendants' motion for summary judgment, the following facts are either undisputed or reflect the record in a light reasonably most favorable to Ashton, the non-moving party.
Plaintiff Frances Ashton has served with the IPD for about twelve years, beginning in 1990. She has worked in various capacities during her career with IPD, including community policing, planning and research, bike patrol, and as a detective. In June 1997, Ashton was promoted to sergeant, a position in which she supervised other officers. She currently is assigned to a tactical or "tac" shift in the Downtown District Branch.
Except at the most senior levels, personnel decisions within IPD are made according to merit-based policies promulgated by the Merit Board. Disciplinary decisions are made pursuant to the City-County Municipal Code, which authorizes the following disciplinary actions: written reprimand, suspension without pay, demotion, and discharge. City-County Municipal Code § 253-208. The chief of police has the "ultimate authority" to take disciplinary action, but the chief may refer matters to the Disciplinary Board of Captains for a recommendation. Departmental supervisors have the authority to take certain disciplinary actions against their subordinates and to recommend that disciplinary action be taken up through the chain of command. Ashton's claims arise out of the action taken against her in response to the events described below.
The assistant chief, deputy chiefs, and majors may: (1) issue written reprimands; (2) suspend an officer for not more than 10 working days without pay; and (3) the assistant chief and deputy chiefs take action that the chief of police has delegated to them. Captains are authorized to: (1) issue written reprimands; and (2) suspend an officer for not more than three working days without pay. Lieutenants may: (1) issue a written reprimand; and (2) suspend an officer for not more than two working days without pay. Sergeants may: (1) issue a written reprimand; and (2) suspend an officer for one working day without pay. City-County Municipal Code § 253-208(e).
1. First Communications Center Incident
The Indianapolis-Marion County Communications Center ("Communications Center") handles dispatch for local law enforcement. Police officers go to the Communications Center for a variety of reasons, though most commonly to visit. Bent Dep. at 38-39. Officers also go to the Communications Center to review tapes and resolve disputes over communications. Brown Dep. at 14.
On April 6, 2000, Ashton went to the Communications Center to resolve an inter-district communications issue. Cplt. ¶ 19; Ashton Dep. at 101-04. Ashton testified that she wanted to listen to the tapes to find out where communication had broken down between herself and the north district supervisor. Ashton Dep. at 103. When Ashton entered the Communications Center, she was met by Michael Brown, the Communication Center's Day Shift Manager. Id. at 104. Ashton testified that Brown spoke to her in a very hostile tone. Id. Ashton also testified that part of the conversation she had with Brown took place in the back office behind a partially closed door. Ashton Dep. at 105.
The next day, Brown wrote an inter-department communication titled "Communications Incident," in which he described his conversation with Ashton and requested that she be banned from the Communications Center. Pl. Ex. 29.
In his memorandum, Brown stated that Ashton had been "unprofessional" and that he "was an IPD officer for 21 years and [he] never talked this way to anyone in authority the way [Ashton] talked to [him]." Id. Brown had not written any other complaint or memorandum involving an officer, even though he has dealt with the rude behavior of other officers. Brown Dep. at 13-4. In response to Brown's memorandum and at Captain John Bent's request, Ashton submitted an inter-department communication on April 20, 2000. Pl. Ex. 7.
Bent recommended to Chief of Police Jerry Barker that Ashton receive a one day suspension for conduct unbecoming an officer. Bent's recommendation was based on his review of memoranda submitted by Brown, Ashton, and Communications Center Deputy Director Blankenship; his receipt of an additional complaint against Ashton submitted within close proximity for similar conduct; her supervisory status; and her decision to confront Brown in front of his subordinates. Bent Dep. at 18, 19, 20. Bent did not interview any individuals who were present for the dialogue that took place between Brown and Ashton at the Communications Center. Id. at 17-8. Bent testified that Blankenship had informed him that people at the Communications Center did not want to be involved in the dispute. Id. at 18.
In August 2000, the Disciplinary Board of Captains held a hearing concerning the incident, at which they received evidence and heard testimony regarding the incident. Pl. Ex. 6. Mike Romansky, who was working at the Communications Center on April 6, 2000 and was seated close by, testified that he did not hear Ashton behave in a rude manner. Ashton Dep. at 105-06. Based on the hearing, the Board recommended that Ashton receive a one day suspension for her conduct. Id. at 109. Barker later rejected the Board's recommendation and decided instead to ban Ashton from the Communications Center without a supervisor. Pl. Ex. 6. Ashton later testified that the Board refused to subpoena some witnesses that she wanted to testify and would only hear evidence that the Board thought was relevant, as opposed to all the evidence she thought was relevant. Ashton Dep. at 107-08.
II. Roll Call Incident
During roll call on April 11, 2000, Ashton questioned Sergeant Robert Wolfe about his treatment of a junior police officer. Cplt. ¶ 25; Ashton Dep. at 149-59. After receiving complaints from several officers about the interaction between Ashton and Wolfe, Deputy Chief Jim Campbell directed Bent to investigate the matter. Bent reviewed written statements by Wolfe and Ashton, and ultimately recommended a one day suspension for Ashton for conduct unbecoming an officer because "she confronted Sergeant Wolfe in front of the staff members in a rude and discourteous manner" and "was disrespectful and used profanity." Pl. Ex. 8.
The Disciplinary Board of Captains held a hearing concerning the matter the same day that it reviewed the Communications Center incident. Pl. Ex. 9. Ashton testified that the Board refused to subpoena all of her witnesses and did not allow her to present all of her evidence. Ashton Dep. at 107-08. The Board again recommended that Ashton receive a one day suspension for conduct unbecoming an officer. Id. at 136; Pl. Ex. 9. Though Barker agreed with the findings of the Board, he issued only a written reprimand to her. Pl. Ex. 9. Wolfe was not disciplined for his actions on April 11, 2000. Bent Dep. at 26.
III. Traffic Stop
In December 2000, Ashton stopped a retired IPD officer who was working as a special deputy. Ashton Dep. at 162-64. The retired officer filed a citizen's complaint that accused Ashton of threatening to confiscate his special deputy credentials and making discourteous remarks to him.
Ashton's direct supervisor, Lieutenant Brian Nanavaty, initially met with Ashton to discuss the incident and to review her performance. Pl. Ex. 27. Nanavaty did not believe that any further disciplinary action was warranted. Id. Assistant Chief Michael Spears, however, issued a written reprimand to Ashton, noting that "this is the third documented instance involving disrespectful comments to another by Sergeant Ashton since May 1996." Pl. Ex. 13. After the completion of a review by the Disciplinary Board of Captains, the Chief of Police issued a one day suspension to Ashton on June 7, 2001 for conduct unbecoming an officer in dealing with the public. Pl. Ex. 12. Ashton did not receive a hearing with respect to this disciplinary action. Ashton Dep. at 170.
IV. Second Communications Center Incident
On February 12, 2001, Ashton was denied entry into the Communications Center. Ashton testified that when she questioned Communications Supervisor Larry Jefferson as to why she was denied entry, he stated that it was because of her lawsuit. Ashton Dep. at 189-90.
Upon receiving complaints that Ashton conducted herself in an inappropriate and unprofessional manner, Nanavaty recommended that Ashton receive a two day suspension. Nanavaty noted that Ashton "conducted herself in an inappropriate and unprofessional manner; at one point launching into a loud verbal tirade" and that her criticisms of the Communications Center were voiced in an "improper and threatening commentary over-the-air, disregarding proper radio procedure." Pl. Ex. 15. Nanavaty further stated that Ashton had a history of similar violations involving rude, confrontational, and discourteous behavior. This recommendation was made about 10 months after the alleged conduct occurred and was based in part on past conduct. Ashton later testified that the past conduct considered by Nanavaty was outside the "reckoning period" on IPD's disciplinary matrix. Ashton Dep. at 175-78; Pl. Ex.15.
The disciplinary matrix is a guideline that lists specific violations and the appropriate range of disciplinary action for first, second, third, and fourth offenses. Pl. Ex. 24. The matrix also lists the "reckoning period" for each violation, meaning the time frame during which the current violation will remain relevant in determining the appropriate disciplinary action for future violations. "The reckoning period for any violation begins on the effective date of action for the violation. The length of each reckoning period is set by the individual violation. If no other like violations occur during the reckoning period, the next violation in that category is again considered a 1st offense." Id.
For "rude and discourteous behavior" the matrix recommends a counseling form for the first offense, a written reprimand for the second offense, a 1 day suspension plus counseling (if deemed necessary) for the third offense, and a 1-3 day suspension for the fourth offense. The reckoning period for rude and discourteous behavior is 2 years.
Deputy Chief Bettye Dobkins, after reviewing tape recordings of statements Ashton made over the radio to Communications Center personnel, recommended that Ashton receive three additional days of suspension. Pl. Ex. 18. Dobkins' recommendation was also based on her review of Ashton's history of similar violations and her status as a supervisor.
The Disciplinary Board of Captains held a hearing to review the five day suspension recommendation. The hearing lasted for five and a half hours, during which time Ashton was allotted about an hour and a half to present her evidence. Ashton Dep. at 179. Ashton testified that she did not have sufficient time to present her evidence and that her testimony was truncated. Id. According to Ashton, when the Board determined that the hearing was over, the Board stated that they hoped she had enough time to present her evidence. When she said "unfortunately not, I could talk to you about this until midnight," one of the captains replied "I would be asleep by then." Id. Ashton was permitted to supplement her evidence with a written memorandum. Id.
V. Summary of Disciplinary Actions
All told, as a result of the above incidents, Ashton was banned from the Communications Center without the presence of a supervisor, she received a written reprimand, and she was also suspended for one day. When the summary judgment motion was briefed, no disciplinary action had yet been taken against Ashton with respect to the second Communications Center incident.
In June 2000, Ashton was also not permitted to participate in a training exercise involving recruits. Though she was scheduled to assist in the training, Major Benton believed that Ashton's participation would not be in the best interest of the recruits because of the pending disciplinary actions against her. Benton Declaration ¶ 8. Benton testified that Ashton's participation in future recruit training exercises would be reevaluated after a determination was made concerning the disciplinary actions. Id. at ¶ 11. Benton also testified that he had no knowledge of Ashton's EEOC charges when he made his decision. Id. at ¶ 12.
IPD took no steps to revoke Ashton's instructor certification. However, Benton did withhold IPD's recommendation of Ashton when she tried to renew her certification. Benton believed it would be in Ashton's best interest to withhold the recommendation until the disciplinary matters were resolved in the event that they were resolved in her favor. Benton Declaration ¶ 16. Benton also testified that an officer has 365 days to renew her certification after it expires and that an officer may submit her certification without a department recommendation. Benton Declaration ¶¶ 13, 15.
VI. EEOC Charges
Ashton filed three complaints with the Equal Employment Opportunity Commission ("EEOC"). Ashton notified Bent of her intent to file an EEOC charge on May 11, 2000 during a meeting she had with Bent, Nanavaty, and Captain Paul Whitehead for the purpose of discussing the April 2000 incidents. Pl. Ex. 28. Bent notified Campbell of his discussion with Ashton, including Ashton's threat to file an EEOC lawsuit. Id.
Ashton followed through and filed her first claim with the EEOC, on May 17, 2000, regarding the incidents that took place in April 2000. Pl. Ex. 21. In her complaint, Ashton alleged that she was disciplined and denied a position with the Hostage Negotiator team because of an erroneous report given to the IPD psychologist, a sexual harassment complaint that she made at the beginning of her career in 1990 for inquiring about and filing a grievance, for participating in a complaint involving racial discrimination, and because of her gender. Pl. Exhibit 21. Ashton's complaint further states "I was told that my sexual harassment complaint that I filed with the Department at the beginning of my career would follow me throughout my career and would have a negative impact. I believe that I have been retaliated against because of my complaints and grievances." Id.
The next day, Deputy Chief James Campbell informed Ashton that she was being transferred to the east district because he believed she was not happy. Ashton Dep. at 216-17. When Ashton asked Campbell if he knew of her EEOC charge, Ashton testified that he replied, "Yes, but it will be a long time before I ever have to go to court if I ever have to go to court." Id. at 217. However, the transfer never took place. Id. at 218.
Ashton filed a second complaint with the EEOC two days later on May 19, 2000 alleging that she was involuntarily transferred to another district because of the May 17, 2000 EEOC complaint. Pl. Ex. 22. Ashton filed a third complaint on July, 19, 2001 asserting that IPD discriminated against her on the basis of sex when it disciplined her more harshly than her male counterparts for the incidents that occurred in December 2000 and February 2001. Pl. Ex. 23. Other facts are noted below, keeping in mind the standard that applies on summary judgment.
Discussion
I. Title VII Claims
Title VII makes it an unlawful employment practice for an employer "to fail or refuse to hire or to discharge any individual, or to otherwise discriminate against any individual . . . because of such individual's race, color, religion, sex or national origin. . . ." 42 U.S.C § 2000e-2(a)(1). Title VII also prohibits an employer from retaliating against any employee because she has made a charge or otherwise participated in any proceeding under the Act. 42 U.S.C. § 2000e-3(a).
Ashton alleges that the city discriminated against her on the basis of her sex and retaliated against her by disciplining her on several occasions, by failing to promote her, and by transferring her.
A. Sex Discrimination Claims
Because Ashton has not offered any direct evidence of sex discrimination, the court analyzes her claims under the three-step pattern of proof established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Under this framework, Ashton must first come forward with evidence to support a prima facie case. For her discriminatory discipline claim, Ashton must produce evidence that tends to show that (1) she is a member of a protected class; (2) she performed her job according to her employer's legitimate expectations; (3) she suffered an adverse employment action; and (4) she was treated less favorably by the defendant than a similarly situated employee outside of her protected class. Curry v. Menard, Inc., 270 F.3d 473, 477 (7th Cir. 2001); Gordon v. United Airlines, Inc., 246 F.3d 878, 885-86 (7th Cir. 2001).
To make a prima facie case for discriminatory failure to promote, Ashton must demonstrate that: (1) she is a member of a protected class; (2) she applied for and was qualified for the position sought; (3) she was nonetheless rejected; and (4) the position was filled by a person not in the protected class or remained open. Gorence v. Eagle Food Centers, Inc., 242 F.3d 759, 764-65 (7th Cir. 2001).
The prima facie case for both discipline and promotion decisions is intended to identify circumstances in which a jury could infer that an employment decision, if not otherwise explained, was the product of illegal discrimination. See, e.g., Stockett v. Muncie Indiana Transit System, 221 F.3d 997, 1001 (7th Cir. 2000). However, if the employer can then merely articulate a legitimate, non-discriminatory reason for its decision, that step shifts the burden back to the plaintiff to show that the employer's stated reason is a pretext, that is, a false explanation for the decision. Kulumani v. Blue Cross Blue Shield Ass'n, 224 F.3d 681, 684 (7th Cir. 2000). If the explanation was false, a trier of fact is permitted to infer that the real reason was an unlawful discriminatory reason.
1. Discriminatory Discipline
Ashton asserts that the department discriminated on the basis of her sex when it suspended her, issued a written reprimand to her, and prohibited her from participating in a training exercise with recruits. Ashton's sex discrimination claim for discriminatory discipline ultimately fails because she cannot establish a prima facie case. In support of summary judgment, the City of Indianapolis contends that Ashton cannot establish three elements of her prima facie case: that she suffered adverse employment action, that she was performing her job according to her employer's legitimate expectations, and that a similarly situated male employee was treated more favorably than she was.
Ashton asserts that her transfer and her restricted access to the Communications Center constitute adverse action. However, Ashton was never transferred. Ashton Dep. at 218. The transfer that never occurred and Ashton's restricted access to the Communications Center do not constitute adverse actions for purposes of her sex discrimination claim. See Herrnreiter v. Chicago Housing Authority, ___ F.3d ___, 2002 WL 31886684, *1-2 (7th Cir. 2002) (adverse action prong is met in three types of case: (1) "[c]ases in which the employee's compensation, fringe benefits, or other financial terms of employment are diminished"; (2) cases in which a change in job or lateral transfer significantly reduces the employee's future career prospects by preventing her from using acquired skill and experience; and (3) cases in which an employee's working conditions change in a way that subjects her to "humiliating, degrading, unsafe, unhealthful, or otherwise significantly negative alterations of [her] workplace environment"). Nonetheless, there is evidence that plaintiff was suspended without pay, which in this context is enough to satisfy her burden of producing evidence of material adverse action, so that action might be able to support a claim.
The City further argues that Ashton failed to meet its expectations because of her lengthy history of rude, discourteous, and confrontational conduct. See Def. Br. at 20. In limited circumstances, however, the second element of the prima facie case is modified so that the plaintiff need not demonstrate that she was actually meeting her employer's legitimate expectations. See Brummett v. Lee Enterprises, Inc., 284 F.3d 742, 745 (7th Cir. 2002). Such analysis is appropriate "in cases where the reason for the employee's termination was alleged to be a sham designed to hide the employer's discriminatory purpose." Id., citing Vakharia v. Swedish Covenant Hospital, 190 F.3d 799, 807 (7th Cir. 1999). By the same reasoning, a plaintiff may also be excused from showing that she met the legitimate expectations of her employer where she alleges that other employees also were not meeting the employer's expectations but either were not disciplined or were not disciplined as harshly. See Curry v. Menard, Inc., 270 F.3d 473, 477-78 (7th Cir. 2001) (it makes little sense to discuss whether employer's legitimate expectations met where issue is whether employer singled out plaintiff for discipline for a prohibited reason); Flores v. Preferred Technical Group, 182 F.3d 512, 515 (7th Cir. 1999) (same). Ashton's case falls within this narrow exception where the plaintiff alleges discrimination in the application of what would otherwise be legitimate discipline, which therefore makes the second element depend not on full satisfactory performance, but on comparisons between the plaintiff and other similarly situated employees.
Plaintiff has not set forth evidence establishing such comparisons, however. Though plaintiff may bypass the second element, she cannot establish a prima facie of sex discrimination because she has not come forward with evidence showing that the department treated more favorably a similarly situated male employee.
To meet her burden under the fourth element, Ashton needed to come forward with evidence that the defendant treated more favorably someone who was directly comparable to herself "in all material respects." Peele v. Country Mut. Ins. Co., 288 F.3d 319, 330 (7th Cir. 2002), quoting Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002). The relevant inquiry is whether the conduct of those who are allegedly similarly situated is of "comparable seriousness" to Ashton's conduct such that defendant's decisions to not discipline those employees or discipline them as harshly as Ashton could permit a reasonable inference that defendant disciplined Ashton for discriminatory reasons. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973) (using phrase "comparable seriousness" to discuss conduct that may support inference of discrimination); Peters v. Renaissance Hotel Operating Co., 307 F.3d 535, 547 (7th Cir. 2002) (relevant question in disciplinary cases is whether conduct is comparable); Friedel v. City of Madison, 832 F.2d 965, 974 (7th Cir. 1987), citing McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283 n. 11 (1976) ("precise equivalence in culpability between employees is not the ultimate question"); see also Lloyd v. Bridgestone Brass Corp., 811 F. Supp. 401, 405-06 n. 4 (S.D.Ind. 1993) (the "relevant inquiry" in determining whether employees are similarly situated is whether employees are "involved in or accused of the same offense and are disciplined in different ways").
In disciplinary cases, a "comparable" employee is one who is similarly situated with respect to performance, qualifications, and conduct. Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617 (7th Cir. 2000). "This normally entails a showing that the two employees dealt with the same supervisor, were subject to the same standards, and had engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employer's treatment of them." Id. at 617-618.
Plaintiff asserts that she was subjected to closer scrutiny than her male counterparts in the police department. Plaintiff has not named specific individuals. She relies on two pieces of evidence to demonstrate that defendant treated similarly situated employees more favorably. First, plaintiff argues that Bent's two recommendations to suspend Ashton demonstrate that she was treated worse than similarly situated employees. Plaintiff asserts that Bent recommended disciplined for her discourteous behavior despite "seeing loud exchanges and arguments between officers and citizens all the time" and despite the fact that the use of vulgarities is not uncommon in the police department. Pl. Br. at 14, citing Bent Dep. at 25, 43.
This argument, however, stretches Bent's deposition testimony to the point of inaccuracy. Bent did not state that he has frequently witnessed similar exchanges between officers and citizens. The following exchange took place between plaintiff's counsel and Bent:
Q. Have you ever disciplined anybody for being rude, any police officer for being rude to anybody, civilian or police, other than Miss Ashton?
A. I don't think so. I don't recall it.
Q. Not in 26 years. Have you ever seen any arguments between any police officer and any civilian, any heated discussions?
A. Well of course. In the course of doing business, I have seen loud exchanges; I have certainly seen arguments. But, the ones that I have seen, I don't consider to be inappropriate for the circumstances that they were, in which they were conducted. There's certainly — there's arguments between officers and citizens all the time as to whether or not they give traffic tickets and whether they deserve them, and sometimes they get loud. But, I have never seen one that has reached any point that I thought was deserving of any kind of discipline, no.
Bent Dep. at 43. Moreover, Bent testified that although the use of vulgarities is not uncommon, Ashton was not disciplined for using vulgarities. Rather she was disciplined for inappropriately confronting a fellow supervisor in front of his subordinates. In reference to Ashton's exchange with Wolfe on April 11, 2000, Bent stated:
I've heard vulgarities used just anywhere on the police department. And the discipline is not for the fact that vulgarities were used. The discipline is for the actions that took place. But, using — it's one thing to sit around and pitch out a few curse words if you're having conversations or if you're talking on telephones or if you're joking around. No one has any problem with that, probably inappropriate behavior. . . . But, being loud and cursing, and I think in her documents screaming, "I don't give a f** what you care." Or I — anyway using that kind of language in a loud confrontation with a supervisor in front of his people who are waiting to go to work, I feel is inappropriate. You can take the vulgarities out of this, and it doesn't change a thing. It's still inappropriate behavior. And that's what she's been disciplined for.
Id. at 25.
For her second piece of evidence, plaintiff asserts that past disciplinary actions taken by the Indianapolis Police Department demonstrate that similarly situated men were treated more favorably than Ashton. For support, plaintiff offers the following information: "over the last ten years of the 1046 officers in the department 899 are men and only 147 were women. Furthermore, 135 of those women (92%) have received disciplinary action. Meanwhile, only 75% of men during the same period received a disciplinary action." Pl. Br. at 14, citing Pl. Ex. 20.
This statistical evidence, however, is not an accurate reflection of the statistics Patrol Officer Bruce Henry reported in his memorandum to plaintiff. Henry reported that from January 1990 through January 1999 there were 813 total disciplines, of which 678 (83.3%) were issued to males and 135 (16.7%) were issued to females. Henry's statistics do not disclose who was disciplined or the number of disciplines the officers received. From these numbers, one cannot reasonably infer that 135 different women were disciplined, just as one could not reasonably infer that the same officer was disciplined 135 times.
Accuracy aside, these statistics are not enough to establish that the City treated any similarly situated male employee more favorably than it treated Ashton. The court cannot glean from these numbers whether these officers were sergeants like Ashton, whether they shared the same disciplining supervisor, and whether they engaged in conduct of "comparable seriousness" to that of Ashton. Moreover, these statistics do not account at all for officers disciplined for nondiscriminatory reasons. "Statistical evidence which fails to properly take into account nondiscriminatory explanations does not permit an inference of discrimination. A plaintiff must show disparate treatment between comparable individuals." Radue v. Kimberly-Clark Corp., 219 F.3d 612, 616-17 (7th Cir. 2000) (internal citations and quotations omitted), citing Furr v. Seagate Tech, Inc., 82 F.3d 980, 987 (10th Cir. 1996).
In the Statement of Material Facts, plaintiff's brief mentions that Wolf was not disciplined as a result of the roll call incident that occurred between Wolf and Ashton. Plaintiff has not argued that Wolf and Ashton are similarly situated or pointed to further information comparing Wolf and Ashton. However, even if she had, it is unlikely that Wolf and Ashton are similarly situated. Bent testified that Ashton was disciplined for confronting Wolf in front of his subordinates during roll call in a rude and discourteous manner. Bent Dep. at 23-6. There is no evidence that Wolf has confronted other supervisors in front of their subordinates in a rude and discourteous manner.
Because Ashton has not come forward with evidence that tends to show that the City treated a similarly situated employee more favorably, Ashton cannot establish a prima facie case of sex discrimination in the disciplinary context, and her claim for discriminatory discipline on the basis of sex fails as a matter of law.
Even if Ashton could establish a prima facie case, the City has articulated legitimate reasons for the actions that it took with respect to Ashton. The City has presented evidence showing that Ashton was disciplined because of conduct unbecoming of an officer in dealing with fellow officers and the public, and for inappropriately confronting supervisors in front of their subordinates. Furthermore, Ashton was not permitted to continue training recruits because Benton believed that it would not be in the best interest of the impressionable recruits to receive instruction from an officer who had an unresolved disciplinary action pending against her. Benton Declaration, ¶¶ 6, 8.
The City's articulation of legitimate reasons for disciplining Ashton requires Ashton to come forward with evidence of pretext to avoid summary judgment. To do so, Ashton must show that defendant's proffered reasons were lies or were completely lacking in factual basis. Jordan v. Summers, 205 F.3d 337, 343 (7th Cir. 2000); Miller v. American Family Mut. Ins. Co., 203 F.3d 997, 1008 (7th Cir. 2000). Ashton has not offered such evidence.
Ashton contends that the decisions to discipline her were pretextual because the reasons offered were insufficient to motivate the action taken. She further argues that the lack of meaningful investigation to substantiate the action taken indicates that defendant's reasons are pretextual. Finally, the type of discipline imposed demonstrates pretext, argues Ashton, because Bent disregarded the IPD disciplinary matrix in recommending the type of discipline that she should receive.
Ashton has not offered actual evidence that would allow a reasonable jury to find that the City lied about the reason it took various actions. "[T]he issue of pretext does not address the correctness or desirability of reasons offered for employment decisions. Rather it addresses the issue of whether the employer honestly believed in the reasons it offers." McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 373 (7th Cir. 1992); see also Wade v. Lerner New York, Inc., 243 F.3d 319, 323 (7th Cir. 2001) (where store manager made decision to discipline employee based on supervisor's report that plaintiff arrived late, the relevant inquiry was whether the decision-maker honestly believed that plaintiff was late; plaintiff's assertion that she arrived on time did not create a disputed fact question material to pretext); Baron v. City of Highland Park, 195 F.3d 333, 341 (7th Cir. 1999) ("the overall correctness or desirability of the reasons proffered is not relevant to the determination of pretext"); Mills v. Health Care Service Corp., 171 F.3d 450, 459 (7th Cir. 1999) (to show pretext, plaintiff would have to produce evidence that evaluation of plaintiff's performance was dishonest, not merely mistaken); Billups v. Methodist Hosp. of Chicago, 922 F.2d 1300, 1304 (7th Cir. 1991) (inquiry is not to determine whether alleged acts occurred, but whether the employer's belief was honestly held); Pollard v. Rea Magnet Wire Co., 824 F.2d 557, 559-560 (7th Cir. 1987) (where an employer has honestly described the motivation behind its decision, that decision is not a pretext for discrimination just because the plaintiff asserts the defendant's beliefs were inaccurate).
An employer's erroneous decision or poor business judgment is not sufficient to establish pretext. See Richter v. Hook-SupeRx, Inc., 142 F.3d 1024, 1031 (7th Cir. 1998). Thus, even if the defendant made a poor decision to punish Ashton based on a less than thorough investigation, that decision was not pretextual unless there is evidence that it was dishonest about its reasons.
Plaintiff's argument that Bent's recommendations could support a finding of pretext are also unpersuasive. First, the disciplinary matrix is a guideline that supervisors use to determine the appropriate course of action to take against officer. Bent Dep. at 27-9. Thus, supervisors have discretion in determining the appropriate disciplinary action to take or to recommend. The fact that a supervisor imposes a harsher penalty than that recommended by the disciplinary matrix or one that is incorrect under the matrix is not evidence that the disciplinary action taken was dishonest. Moreover, Bent was not the sole decision maker regarding Ashton's discipline. Bent recommended that Ashton be disciplined for her conduct, but before disciplinary action was taken, Ashton received a hearing before the Disciplinary Board of Captains where she was able to present evidence. The Board then made findings and recommended a course of action to the Chief of Police. It was the Chief of Police who ultimately determined the appropriate penalty. Therefore, the fact that Bent recommended discipline is not evidence that the City's reason for action ultimately taken against Ashton was dishonest.
Ashton has failed to put forth evidence demonstrating that IPD's reasons for disciplining her were a pretext for sex discrimination. Accordingly, the City of Indianapolis is entitled to summary judgment on Ashton's claim of discriminatory discipline.
2. Discriminatory Failure to Promote
Plaintiff Ashton also asserts that IPD discriminated against her on the basis of sex when it failed to promote her in February 2002. Plaintiff has not set forth any evidence to support her claim other than the bare assertion that she was denied a promotion for discriminatory reasons. Pl. Br. at 13. The City is therefore entitled to summary judgment on this claim for the reasons stated in its brief. See Millbrook v. IBP, Inc., 280 F.3d 1169, 1176 (7th Cir. 2002) ("`[a]bsent evidence that subjective hiring criteria were used as a mask for discrimination, the fact that an employer based a hiring or promotion decision on purely subjective criteria will rarely, if ever, prove pretext under Title VII . . .'"), quoting Denney v. City of Albany, 247 F.3d 1172, 1185 (11th Cir. 2001).
B. Retaliation Claim
Ashton further asserts that IPD disciplined her in retaliation for complaining about actions she believed to violate Title VII. To establish a prima facie case of retaliation, Ashton must come forward with evidence tending to show that: (1) she engaged in statutorily protected activity; (2) she performed her job according to her employer's legitimate expectations; (3) she suffered a materially adverse action; and (4) she was treated less favorably than a similarly situated employee who did not engage in statutorily protected activity. Hilt-Dyson, 282 F.3d 456, 465 (7th Cir. 2002), citing Stone v. City of Indianapolis Public Utilities Div., 281 F.3d 640, 642-43 (7th Cir. 2002).
In the retaliation context, "adverse action" includes adverse employment action, but does not require it. See Herrnreiter v. Chicago Housing Authority, ___ F.3d ___, 2002 WL 31886684, *3-4 (7th Cir. 2002). See, e.g., Place v. Abbott Laboratories, 215 F.3d 803, 810 (7th Cir. 2000) ("adverse actions can come in many shapes and sizes"); Knox v. Indiana, 93 F.3d 1327, 1334 (7th Cir. 1996) ("[n]o one would question the retaliatory effect of many actions that put the complainant in a more unfriendly working environment: actions like moving the person from a spacious, brightly lit office to a dingy closet"); Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996) (being shifted to an essentially equivalent job that [plaintiff] did not like did not create a Title VII claim; "[o]therwise every trivial personnel action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit").
Ashton alleges that IPD retaliated against her for filing EEOC charges when it told her she would be transferred. As noted above, however, the transfer did not take place. A transfer that does not take place does not constitute adverse action even in the broader retaliation context. Ashton also argues that IPD retaliated against her in denying her access to the Communications Center in February 2001. Ashton testified that Jefferson preferred to have Ashton do a tape request rather than come over to the Communications Center because of "all the conflict and mess that's going on up here." Ashton Dep. at 189. This argument misses the point — Ashton was already prohibited from entering the Communications Center when Jefferson asked her to do a tape request.
To the extent that Ashton argues that other disciplinary actions taken against her and IPD's failure to promote her were in retaliation for her EEOC charges, she fails to establish a prima facie case for the same reasons that she cannot establish a prima facie case of sex discrimination. She has not provided any evidence that a similarly situated employee who did not engage in protected activity was treated more favorably. Even if Ashton did provide such evidence, she has not proffered any evidence from which a reasonable jury could infer that IPD's reasons for disciplining and not promoting her were pretextual. Therefore, the City of Indianapolis is entitled to summary judgment on this claim.
II. Section 1983 Claims
Plaintiff Ashton also asserts claims under 42 U.S.C. § 1983, which provides a cause of action against "[e]very person who, under color of any statute . . . of any State . . . subjects, or causes to be subjected, any citizen . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." Section 1983 is not itself a source of substantive rights; instead, it is a means for vindicating federal rights conferred elsewhere. Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979). To recover under § 1983, Ashton must therefore establish that she was deprived of a right secured by the Constitution or laws of the United States. West v. Atkins, 487 U.S. 42, 48 (1988). Additionally, to hold the City of Indianapolis liable under § 1983, Ashton must demonstrate that the constitutional deprivation was caused by "a policy statement, ordinance, regulation, or decision officially adopted and promulgated by [the City's] officers." Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690 (1978).
Ashton contends that IPD violated her Fourteenth Amendment rights to equal protection and due process and her First Amendment right to free speech when it disciplined her.
A. Alleged Equal Protection Violation
To establish a prima facie case of discrimination under the Equal Protection Clause, Ashton is required to demonstrate that she "is otherwise similarly situated to members of the unprotected class" and that she "was treated differently from members of the unprotected class." Johnson v. City of Fort Wayne, 91 F.3d 922, 944-45 (7th Cir. 1996), quoting McNabola v. Chicago Transit Auth., 10 F.3d 501, 513 (7th Cir. 1993); see also McPhaul v. Board of Commissioners of Madison County, 226 F.3d 558, 564 (7th Cir. 2000), citing Greer v. Amesqua, 212 F.3d 358, 370 (7th Cir. 2000). Ashton is also required to demonstrate that IPD acted with discriminatory intent. Johnson, 91 F.3d at 945, citing McNabola, 10 F.3d at 513; Sims v. Mulcahy, 902 F.2d 524, 539 (7th Cir. 1990). With respect to discriminatory intent, Ashton must come forward with evidence tending to show that her employer "acted [or failed to act] with a nefarious discriminatory purpose," and discriminated against her because of her sex. McPhaul, 226 F.3d at 564, quoting Nabozny v. Podlesny, 92 F.3d 446, 453 (7th Cir. 1996).
Because Ashton has not tried to differentiate her equal protection claim from her Title VII sex discrimination claim, the court will also not differentiate between these two claims. See Pl. Br. at 19-20. Ashton's equal protection claim fails for similar reasons that her Title VII claims fail: she has not come forward with evidence tending to show that she was treated differently than similarly situated male officers. Ashton has not set forth any evidence tending to show that other male sergeants conducted themselves in a similarly rude or discourteous manner, or inappropriately confronted supervisors in front of their subordinates, or were the subject of citizen complaints, were treated better than she was. See O'Connor v. Chicago Transit Authority, 985 F.2d 1362, 1371 (7th Cir. 1993) ("To make a prima facie case, [plaintiff] would have to show that another grossly insubordinate worker was treated better than him [sic]."). Rather, Ashton relies on the same evidence she proffered to support her sex discrimination claim, which is also insufficient to support this claim. There is also no evidence before the court from which a reasonable jury could infer that the disciplinary action taken against Ashton was motivated by discriminatory animus. Therefore, Ashton has not come forward with evidence supporting a deprivation of her Fourteenth Amendment right to equal protection.
B. Alleged Due Process Violation
Plaintiff Ashton further alleges that her Fourteenth Amendment right to procedural due process was violated when the department failed to notify her and failed to afford her an opportunity to be heard before it issued a written reprimand to her and suspended her for less than ten days. The relevant inquiry therefore, is whether Ashton had a liberty or property interest in continuous or uninterrupted employment, and if so, what process was due before she was disciplined. See Moulton v. Vigo County, 150 F.3d 801, 804 (7th Cir. 1998); Fittshur v. Village of Menomonee Falls, 31 F.3d 1401, 1405 (7th Cir. 1994), citing Cleveland Bd. of Education v. Loudermill, 470 U.S. 532, 541 (1985).
To determine whether Ashton has a property interest in continuous employment, or more precisely suspensions of less than 10 days, the court looks to state law. See Moulton, 150 F.3d at 804; see also Larsen v. City of Beloit, 130 F.3d 1278, 1282 (7th Cir. 1997), citing Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). Specifically, the court looks to the statutes and ordinances that regulate the employment of IPD officers. See Harrison v. City of Greenfield, 966 F.2d 315, 315-16 (7th Cir. 1992); Bailey v. Canan, 82 F. Supp.2d 966, 985 (S.D.Ind. 2000). And here, the court finds that Ashton has no protected property interest implicated by suspensions of less than ten days.
The relevant state laws in this case are the code provisions of the City-County Municipal Ordinance that regulate the employment of IPD officers. The City of Indianapolis established a merit system for its police department pursuant to Ind. Code § 36-8-3.5-1. Under this system, the chief of police has "the ultimate authority to discipline any member of the department" subject to certain enumerated restrictions. City-County Ordinance § 253-208(d). The chief of police is authorized to issue a written reprimand, suspend an officer without pay for up to six months, demote an officer by one merit rank, recommend the discharge of an officer to the merit board, and reinstate with pay any officer who previously was suspended without pay. Id. An officer who is suspended for more than 10 days may appeal the portion of the suspension that is greater than 10 days to the merit board. Likewise, officers may appeal demotions, and officers recommended for discharge are provided a de novo administrative hearing. Id.
The ordinance plainly provides disciplinary procedures that would deprive a police officer of employment for a period of time. However, the mere existence of state procedures does not necessarily create a property interest. "Property cannot be defined by the procedures provided for its deprivation any more than can life or liberty." Cleveland Board of Education, 470 U.S. at 541; Smith v. Town of Eaton, 910 F.2d 1469, 1471-72 n. 4 (7th Cir. 1990) ("the Supreme Court has made clear [that] state procedures do not in themselves decide the question of whether a property interest has been created;" finding property interest in context of 10 day suspension and dismissal), citing Olim v. Wakinekona, 461 U.S. 238, 250-251 (1983). Of greater importance in this case, however, is the ordinance's treatment of suspensions of different durations. The municipal ordinance clearly differentiates between suspensions of more than 10 days and those of less than 10 days, providing the former with additional procedural protections. Thus, Ashton has no property interest in suspensions of less than 10 days under the municipal ordinance. This result is consistent with that reached in the context of student suspensions from school, a context which this court has found to be analogous to police officer suspensions from the department. See Bailey v. Canan, 82 F. Supp.2d 966, 990 (S.D.Ind. 2000) (McKinney, J).
Because Ashton has no property interest violated by suspensions of less than 10 days, she suffered no deprivation of her Fourteenth Amendment right to procedural due process.
C. Alleged Violation of First Amendment Rights
Ashton has sued the City under 42 U.S.C. § 1983 for retaliation in violation of her First Amendment right to free speech. Ashton alleges that IPD took adverse action against her for filing charges with the EEOC.
A claim under § 1983 for retaliation in violation of the First Amendment is analyzed according to a three-step process. First, a public employee must establish that her speech is constitutionally protected. An employee's speech is protected if it involves a matter of public concern and the employee's interest in the speech outweighs the state's interest in promoting the efficiency of its public services. Connick v. Myers, 461 U.S. 138, 142 (1983); Pickering v. Bd. of Education, 391 U.S. 563, 568 (1968). Once an employee has established that her speech is constitutionally protected, she must prove that the defendant took adverse action against her that was motivated by the protected speech. Vukadinovich v. Bd. of School Trustees of North Newton School Corp., 278 F.3d 693, 699 (7th Cir. 2002); Kuchenreuther v. City of Milwaukee, 221 F.3d 967, 973 (7th Cir. 2000). The defendant then is given "the opportunity to demonstrate that it would have taken the same action in the absence of the plaintiff's exercise of [her] rights under the First Amendment." Kuchenreuther, 221 F.3d at 973; Vukadinovich, 278 F.3d at 699. If the defendant meets this burden, the plaintiff then must come forward with evidence tending to show that the defendant's proffered reason is pretextual. Vukadinovich, 278 F.3d at 699.
"The issue of sex discrimination in public employment is, of course, a matter of public concern." Kokkinis v. Ivkovich, 185 F.3d 840, 844 (7th Cir. 1999), citing Hartman v. Bd. of Trustees of Community College Dist. No. 508, 4 F.3d 465, 472 n. 5 (7th Cir. 1993). However, the fact that Ashton's speech touched on a topic of public importance does not mean it automatically qualifies as a matter of public concern under Connick. Id. Whether Ashton's speech addressed a matter of public concern requires an evaluation of "the content, form, and context of [the speech] as revealed by the whole record," with content being the most important of these factors. Gustafson v. Jones, 290 F.3d 895, 907 (7th Cir. 2002), quoting Connick v. Myers, 461 U.S. 138, 147-48 (1983).
"The `public concern' element is satisfied if the speech can fairly be said to relate to a matter of political, social, or other concern to the community, rather than merely a personal grievance of interest only to the employee." Id., citing Connick, 461 U.S. at 146; see also Kokkinis, 185 F.3d at 844 (court must "delve deeper into the precise content, form, and context of the speech that admittedly may be of some interest to the public"); Linhart v. Glatfelter, 771 F.2d 1004, 1010 (7th Cir. 1985) (the court looks at the point of the speech by asking: "was it the employee's point to bring wrongdoing to light? Or to raise other issues of public concern, because they are of public concern? Or was the point to further some purely private interest?"). The Seventh Circuit has emphasized that speech will not lose its protection merely because it was motivated in part by a personal interest. See Gustafson, 290 F.3d at 908 ("while motive is relevant to the `matter of public concern' inquiry, we have consistently held that it is not dispositive"); Greer v. Amesqua, 212 F.3d 358, 371 (7th Cir. 2000) ("[a] personal aspect contained within the motive of the speaker does not necessarily remove the speech from the scope of public concern"), quoting Marshall v. Porter County Plan Commission, 32 F.3d 1215, 1219 (7th Cir. 1994). But speech that is motivated completely by personal interest may not be a matter of public concern. Gustafson, 290 F.3d at 908 ("even speech on a subject that would otherwise be of interest to the public will not be protected if `the expression addresses only the personal effect upon the employee'").
The evidence shows beyond fair dispute that personal interest was not just a motivating factor behind Ashton's speech, it was the sole factor. The speech in question is Ashton's May 17, 2000 complaint to the EEOC, which alleges that IPD discriminated against her on a variety of impermissible bases when it failed to promote her and disciplined her. In her complaint, Ashton alleged that the actions take against her were due to:
my filing a complaint within the Department concerning sexual harassment at the beginning of my career, for inquiring about filing a grievance, for filing a grievance, for participating in a complaint regarding racial discrimination, and because of my gender.
Pl. Ex. 21. Ashton's complaint clearly implicates the personal effects of alleged discrimination. The only indication that Ashton's speech involved any interest other than her own personal interest in her career comes from her opposition brief to defendants' motion for summary judgment, where she recited statistics about the number of disciplinary actions taken against women officers in the IPD as compared to men. Ashton cannot save her First Amendment claim under § 1983 by now claiming that her motivation in filing the EEOC charges was to vindicate the rights of women employed by the IPD. Yatvin v. Madison Metropolitan School Dist., 840 F.2d 412, 420 (7th Cir. 1988) ("Everyone exaggerates the importance of his or her own activity and it is therefore natural for lawyers to suppose that every legal pleading, however humble, comes trailing clouds of First Amendment glory."). There is simply no evidence that distinguishes Ashton's case from the "run-of-the-mine single-plaintiff discrimination case." Id.
Ashton has also not proffered evidence tending to show that her EEOC complaints motivated IPD to take action against her. Even if she had, the City has produced evidence that it would have taken the same action against Ashton regardless of her complaints — evidence which Ashton has not rebutted. The court's previous discussion of IPD's non-discriminatory reasons for disciplining Ashton and the lack of evidence of pretext applies here with equal force. See, supra, Part I, A, 1.
Because Ashton's speech does not involve a matter of public concern and is therefore not protected, because she has not set forth evidence tending to show that her speech motivated IPD to take adverse action against her, and because she had not proffered evidence of pretext, a reasonable jury could not infer that IPD disciplined her for filing charges with the EEOC.
Ashton's § 1983 claims fail as a matter of law because she has set forth evidence tending to show that IPD's actions violated her First or Fourteenth Amendment rights. Even if Ashton had proffered evidence of a constitutional deprivation, she has not come forward with evidence from which a reasonable jury could infer that "a policy statement, ordinance, regulation, or decision officially adopted and promulgated by [the City's] officers" caused the deprivation. See Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690 (1978).
The defendant City of Indianapolis is therefore entitled to summary judgment on these claims.
III. Defamation Intentional Infliction of Emotional Distress
In her second amended complaint, Ashton also asserted claims under state law for defamation and intentional infliction of emotional distress. The defendant has moved for summary judgment on these claims, and neither party has addressed these claims separately in the briefs. The court grants defendant's motion for summary judgment on Ashton's defamation and intentional infliction of emotional distress claims.
On this record, Ashton's defamation claim would fail on the merits because any alleged defamation would be protected by the doctrine of qualified privilege. See Balz v. Verduzco, 600 N.E.2d 1353, 1356 (Ind. 1992) ("Intracompany communications regarding the fitness of an employee are protected by the qualified privilege."). The intentional infliction of emotional distress claim would also fail because there is no evidence in the record to support an inference that Bent or Blankenship in their representative capacities intended to cause Ashton emotional injury. See, e.g., Cullison v. Medley, 570 N.E.2d 27, 31 (Ind. 1991) (""One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress."), quoting Restatement (Second) of Torts § 46 (1965); Conwell v. Beatty, 667 N.E.2d 768, 775-77 (Ind.App. 1996). Similarly there is no evidence of "outrageous" conduct. See Powdertech, Inc. v. Joganic, 776 N.E.2d 1251, 1264 (Ind.App. 2002) ("under Indiana law, conduct is extreme and outrageous: only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community").
Conclusion
Though defendants' objections to evidence are overruled, defendant's motion for summary judgment is granted on all claims. Final judgment will be ordered accordingly.
So ordered.
01-0690-C H/K Clanton v. Kirk Blum [2] Judge David F. Hamilton Signed on 1/16/03