Opinion
IP 01-0340-C-T/K.
September 11, 2002
Entry On Motion For Summary Judgment
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
Plaintiff, Valerie G. Cooper, sued Defendants, Jack L. Cottey and Robert Leary, in their individual and official capacities under 42 U.S.C. § 1983, alleging a violation of her First Amendment rights to political association and free speech and her Fourteenth Amendment right of equal protection. This cause is before the court on Defendants' Motion For Summary Judgment.
I. Background
These facts are undisputed. Plaintiff, Valerie G. Cooper, was hired as a clerk in the records department of the Marion County Sheriff's Department (the "Sheriff's Department" or "Department") in 1991. In July 1992, she became a radio operator. Shortly thereafter, she met Jerry Cooper, chief of investigations under then Sheriff Joseph McAtee. By May 1993, Valerie had been promoted to Jerry's executive secretary.
Jack Cottey took office as Marion County Sheriff in January 1995 and promoted Jerry to Colonel and Executive Officer, the second in command. Also in January, Valerie was promoted to a special deputy in the civil division. Valerie and Jerry were married in September 1995. In October 1997 Ms. Cooper was promoted to sergeant in the civil warrant division. In November 1998 she was promoted to lieutenant in charge of the warrants and replevin section of the civil division in which position she worked with Defendant, Deputy Chief Robert Leary, on a daily basis.
In April 1999 Deputy Chief Leary issued to Ms. Cooper and Captain Shirley Callis a memorandum regarding campaign yard signs which stated:
I will need twenty-five (25) teams to put up yard signs on April 17th. We will meet at the Fire Department-Union Hall at 0800 hours. Everyone in the Civil Office will help.
Please arrange your teams and give me a combined list by Friday, April 9, 1999.
(Defs.' Ex. E.) When Sheriff Cottey learned about the memorandum, he directed Colonel Scott Minier to order that Deputy Chief Leary rescind the memorandum and inform him that participation was to be voluntary.
On Monday, April 19, Deputy Chief Leary came into Ms. Cooper's office, yelled and cursed at her, and asked her where "the hell" she was on Saturday because he had not seen her at the campaign site the previous Saturday. (Pl.'s Dep. at 57-58, 63.) He spoke in such a loud voice that other employees could hear him. This incident lasted less than one minute. Ms. Cooper resigned that same day because of this incident. Her resignation letter to Sheriff Cottey, dated April 19, states in part:
Please consider this my letter of resignation. . . . I appreciate the opportunities and promotions I have received during my years under your administration. . . . I am at a point in my life that I can afford to pursue some of my other interest (sic) and have more quality time to spend with my family. Thanks again.
(Defs.' Ex. G.)
Ms. Cooper sought and obtained employment with the Marion County Justice Agency (the "Justice Agency") in July 1999 as jail ombudsman in which she was the liaison between the courts and the jail and had daily contact with members of the Sheriff's Department.
On July 17, 1999, Ms. Cooper and Mr. Cooper went out drinking at a bar. In the early morning hours Mr. Cooper hit, pushed and began choking Ms. Cooper. Ms. Cooper reported this abusive incident to Sheriff Cottey's brother. As a result, Mr. Cooper was arrested, sought medical retirement and resigned from the Sheriff's Department. The incident was publicized in the newspaper and on television.
Ms. Cooper asserts that as a result of this incident, some Sheriff Department employees began treating her differently by giving her the "cold shoulder" and being hostile. (Pl.'s Dep. at 127-30.) Ms. Cooper cited the following examples of how she was treated differently. One morning when she was passing the warrants section a male detective called her as a "lying cunt." (Id. at 130.) On another occasion she went to a wedding and a detective refused to shake her hand. Ms. Cooper described Zina Skaggs, the individual assigned by Sheriff Cottey to work with her, as being "really rude" at jail overcrowding meetings and complaining that she was not doing her job. (Id. at 131.) Ms. Cooper testified that she still could have done her job with the Justice Agency, it just became very unpleasant for her.
II. Summary Judgment Standard
Summary judgment should be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). When deciding whether there is a genuine issue of material fact, the court views the facts in the light most favorable to the nonmoving party and draws all reasonable inferences from those facts in that party's favor. Smith v. Ball State Univ., 295 F.3d 763, 767 (7th Cir. 2002).
A fact is "material" if it is potentially outcome determinative under applicable law. E.E.O.C. v. Sears, Roebuck Co., 233 F.3d 432, 436 (7th Cir. 2000). The mere existence of an alleged factual dispute is insufficient to defeat a summary judgment motion. Vukadinovich v. Bd. of Sch. Tr. of N. Newton Sch. Corp., 278 F.3d 693, 699 (7th Cir.), petition for cert. filed (U.S. June 17, 2002) (No. 01-11005). Rather, the nonmoving party must "present definite, competent evidence to rebut the motion." Sears, Roebuck, 233 F.3d at 437.
III. Discussion
Ms. Cooper sued Sheriff Cottey and Deputy Chief Leary under 42 U.S.C. § 1983, alleging a violation of her rights to political association, free speech and equal protection. She alleged that she was required to work on political activities for the Republican Party as a condition of her employment with the Sheriff's Department. She also alleged that she quit her employment because she could no longer tolerate having to work on the political activities. She next alleged that she was subjected to sexual harassment and discrimination while employed at the Sheriff's Department. She further alleged that she had to quit her position with the Justice Agency because the Sheriff's Department prevented her from performing her job.
A. First Amendment Claim
Defendants contend that Ms. Cooper was exempt from employment decisions based on patronage because she was a policymaking employee. The determination of whether Ms. Cooper was employed in a policymaking position exempt from First Amendment protection against political patronage dismissals is a close one. The court, however, need not resolve this issue.
Beginning with Bart v. Telford, 677 F.2d 622 (7th Cir. 1982), the Seventh Circuit has held that a campaign of petty harassment in response to a public employee's political expression is actionable under § 1983 as a First Amendment violation. Id. at 625. In Pieczynski v. Duffy, 875 F.2d 1331 (7th Cir. 1989), the court held that harassment of a public employee because of his or her political beliefs violates the First Amendment unless the harassment was so trivial that a person of ordinary firmness would not be deterred from holding or expressing those beliefs. Id. at 1333. The harassment need not be so severe as to amount to constructive discharge. Id. In Wallace v. Benware, 67 F.3d 655 (7th Cir. 1995), the court extended Bart and Pieczysnki to bar the harassment of an employee who could be constitutionally discharged under the policymaking exception to the ban on patronage dismissals. Id. at 656, 662-63. Thus, assuming that Ms. Cooper was a policymaking employee, she could prevail on her First Amendment claim if she can establish that she was harassed because of her political expression, unless the harassment was so trivial that a person of ordinary firmness would not have been deterred from holding or expressing her political beliefs.
Defendants contend that the alleged harassment of Ms. Cooper was so trivial such that no reasonable person would have been deterred from holding or expressing her political beliefs. They also contend that the difficulties with Sheriff Cottey and Deputy Chief Leary had nothing to do with her political beliefs or associations. Having considered the record, the court finds that the conduct of which Ms. Cooper complains does not rise to the level of harassment which would deter a person of ordinary firmness from holding or expressing her political beliefs.
Ms. Cooper alleges that she was asked in April 1999 to organize her staff to place campaign yard signs on a Saturday and that Deputy Chief Leary yelled at her the following Monday because he thought she had not participated in that activity. This conduct, though unpleasant, would not have deterred a person of ordinary firmness from holding or expressing her political beliefs. See Warner v. City of Terre Haute, Ind., 30 F. Supp.2d 1107, 1128 (S.D.Ind. 1998) (concluding plaintiff offered insufficient evidence to create a jury question on whether any action taken against her would have deterred a person of ordinary firmness from pursuing political activity where employee was not disciplined, threatened with discipline, reprimanded, demoted or fired and did not lose any pay). Though she was yelled at briefly by her superior, like the plaintiff in Warner, Ms. Cooper was not disciplined, threatened with discipline, demoted or fired, and suffered no other adverse action.
Ms. Cooper contends that she was constructively discharged because she was told to participate in the campaigns or she had no job. To prove a constructive discharge claim, Ms. Cooper must establish that her working conditions become so intolerable that a reasonable person in her position would be compelled to resign. See, e.g., Gawley v. Ind. Univ., 276 F.3d 301, 315 (7th Cir. 200) (Title VII); Bennington v. Caterpillar Inc., 275 F.3d 654, 660 (7th Cir. 2001) (Age Discrimination in Employment Act ("ADEA")), petition for cert. filed, 70 U.S.L.W. 3759 (Mar. 26, 2002) (No. 01-1753). She must also establish that her working conditions were intolerable because of impermissible discrimination. See, e.g., Bennington, 275 F.3d at 660.
Though these cases do not involve claims of constructive discharge under the First Amendment, the court believes that the same standard of intolerable working conditions applicable under anti-discrimination statutes such as Title VII and the ADEA should apply.
Ms. Cooper cites her affidavit as support for her constructive discharge claim, but does not cite a specific paragraph of her affidavit. (Pl.'s Br. at 19.) Nevertheless, the court has reviewed her affidavit which, in reference to direct orders to campaign and her complaints to Deputy Chief Leary, states that "Robert Leary told me I had no choice." (Pl.'s Aff. ¶¶ 32, 33.) Ms. Cooper also states that she once told Leary she was not going to help with the political work and he responded that she would work as directed or not show up for work the next day. (Id. ¶ 34.) Ms. Cooper's prior deposition testimony reveals when this conversation took place. She testified that the first year she was a deputy Leary told her to work the polls or she should not come to work. (Pl.'s Dep. at 105.) The record establishes that Ms. Cooper became a deputy in early 1995.
Ms. Cooper also asserts that if she was not willing to work on political campaigns, Chief Leary had already told her that she did not have a job, citing pages 58-59 of her deposition as support. These pages offer no support for this factual assertion, and, therefore, Ms. Cooper has not raised a reasonable inference that Chief Leary told her at any other time that she would not have a job if she did not work on political campaigns.
The statute of limitations for suits under § 1983 is borrowed from the forum state's statute of limitations for personal injury claims. Wilson v. Garcia, 471 U.S. 261, 275 (1985); Heard v. Sheahan, 253 F.3d 316, 317 (7th Cir. 2001). In Indiana, the applicable limitations period is two years. Venters v. City of Delphi, 123 F.3d 956, 967 (7th Cir. 1997). Thus, Ms. Cooper's own evidence establishes that she was told her job was dependent on her participation in political activities only at a point in time outside the two year limitations period. (She filed this action on March 13, 2001.) Thus, she cannot rely on that alleged statement by Deputy Chief Leary to establish her constructive discharge claim.
Furthermore, Ms. Cooper testified that she did not work the polls, with one exception when she worked at the request of her friend and by her own choice. (Pl.'s Dep. at 104-05.) This evidence fails to create an issue of fact as to whether Sheriff Cottey or Chief Leary required Ms. Cooper to work at the polls at any time. Ms. Cooper later testified that "we were always instructed to work the polls by Leary," (id.), but her own testimony establishes that she did not follow his instruction. And, the evidence reveals that she was never disciplined, demoted or fired for not working at the polls. Moreover, Ms. Cooper's resignation letter is not suggestive of someone who felt compelled to resign because her working conditions were so intolerable.
Though she first testified that she worked at the polls, Ms. Cooper quickly corrected herself and said "that's not true. I did work for Marvin Taylor. . . ." (Pl.'s Dep. at 104), which was at her friend's request.
Ms. Cooper testified that the first year she was a deputy under Chief Leary she was told to work the polls or not to come to work tomorrow. (Pl.'s Dep. at 105-06.) As explained, this occurrence is outside the limitations period. Ms. Cooper offers no other evidence that she was told by Chief Leary, or for that matter, Sheriff Cottey, that she had to work at the polls or lose her job at any time within the limitations period.
Ms. Cooper's evidence regarding her treatment by some Sheriff's Department employees while she worked at the Justice Agency also fails to raise a reasonable inference that she was constructively discharged, or that a person of ordinary firmness would have been deterred from holding or expressing her political beliefs. During her deposition Ms. Cooper conceded that the treatment from some Sheriff's Department employees was because of the abuse incident with her husband and his resulting resignation. (Pl.'s Dep. at 121-22.) She offers no evidence to support a reasonable inference that this treatment of her had anything to do with her political beliefs or affiliations.
Ms. Cooper claims that Zina Skaggs, assigned by the Sheriff to work with her, interfered with her employment by being hostile to her and her supervisor, Mary Murdock. Ms. Cooper claims she was not allowed to enter the jail for one week; the Director of the Justice Agency had to meet with Chief Commiskey of the Sheriff's Department so her work could be done; the Chief suggested she enter the jail through the tunnel and appeared angry when she protested and said she'd enter through the front door; he said she'd have to check in. Also, the use of a radio was rescinded.
The court finds that Ms. Cooper has not presented sufficient evidence to raise a reasonable inference that the conduct about which she complains would have deterred a person of ordinary firmness from holding or expressing her political beliefs. Therefore, summary judgment should be GRANTED Defendants on her § 1983 claim premised upon an alleged violation of the First Amendment.
B. Equal Protection Claim
Ms. Cooper's equal protection claim is based on the following: (1) Defendants discriminated against her and other female employees and made gender-based decisions; and (2) Defendants had a policy or practice of ignoring domestic abuse by males within the Department and/or punishing female employees who reported domestic abuse.
To prove a violation of the Equal Protection Clause, a plaintiff must offer evidence to show that the defendants' actions had a discriminatory effect and were motivated by a discriminatory purpose. Chavez v. Ill. State Police, 251 F.3d 612, 635-36 (7th Cir. 2001). To prove discriminatory effect, a plaintiff must show that she is a member of a protected class, that she was otherwise similarly situated to individuals outside the protected class, and that she was treated differently from individuals outside the protected class. Id. at 636. To prove a discriminatory purpose, a plaintiff must show that the decisionmaker "selected or reaffirmed a particular course of action at least in part `because of' . . . its adverse effects upon an identifiable group." Id. at 645.
Defendants contend that Ms. Cooper's equal protection claim fails because she cannot show that she was treated less favorably than any similarly situated male employees or that any differential treatment was because of her gender. In support of her equal protection claim, Ms. Cooper relies on Sheriff Cottey's alleged use of a sexual gesture with her at the beginning of his term as Sheriff (January 1995). She argues that other incidents confirmed for her that the Sheriff had problems with female employees. When she was sworn in as a deputy (January 1995), he allegedly told her that he hoped she would "stop bitching." (Cooper Dep. at 115.) She argues that she complained to Deputy Chief Leary about male officers touching her in an offensive manner and no disciplinary action was taken against them, but these incidents occurred no later than the fall of 1997. Because all of these incidents are outside the limitations period, see Wilson v. Garcia, 471 U.S. 261, 275 (1985); Venters v. City of Delphi, 123 F.3d 956, 967 (7th Cir. 1997) (limitations is two years), Ms. Cooper may not rely on them to establish her equal protection claim.
Also, Ms. Cooper claims that when she requested to hire a woman, Deputy Chief Leary told her that Sheriff Cottey did not want any more women on staff. She complained, and Leary replied that it was "Jack's house" and he could do whatever he wanted. (Cooper Dep. at 109.) She also states that once female officers became upset about a male officer taking lunch breaks that were too long. She met with Sheriff Cottey about the women's complaints, and he said that was the "F-ing problem you get when you have a bunch of women working together." (Cooper Dep. at 114.) Ms. Cooper claims that Deputy Chief Leary said he hated working with women and that women were "stupid" and belonged at home. This evidence may show discriminatory purpose, but is insufficient to establish a discriminatory effect on Ms. Cooper.
Ms. Cooper claims that Deputy Chief Leary generally treated women worse in the way he spoke to and interacted with them, citing pages 140-43 of her deposition as support. She testified that he raised his voice with her, but she also testified that he yelled at men and treated them in a demeaning manner. (Pl.'s Dep. at 140-41.) Ms. Cooper also testified that Deputy Chief Leary was unfair and abusive with people. (Id. at 68, 77). Ms. Cooper offered an example of Leary's alleged mistreatment of Sherry Watson, but the cited deposition pages do not identify any specific instances in which Chief Leary's comments were directed to Ms. Cooper. The court finds that all this evidence is insufficient to raise a genuine issue of fact that Ms. Cooper was similarly situated to individuals outside the protected class, but treated differently from such individuals.
Ms. Cooper argues that Chief Leary criticized her for being late on the rare occasion that she was late for work, but male lieutenants frequently were late or took extra time without criticism. She cites no record evidence to support this argument. She does not identify any such male lieutenant by name. Nor does she offer anything to show that she had personal knowledge of whether male lieutenants received criticism for being late or taking extra time. Thus, this argument fails to create a triable issue on her equal protection claim.
The court is at a loss to understand Ms. Cooper's equal protection claim founded upon the Defendants' treatment of domestic abuse cases. She argues that "woman only became valuable when married or otherwise sexually attached to a male." (Pl.'s Br. at 25.) But Ms. Cooper was married and sexually attached to a male when she reported his abuse. Upon her report, Mr. Cooper was forced to take medical retirement. Ms. Cooper argues that Deputy Chief Leary was allowed to remain on the force when battery charges were made against him because the woman did not have a sexual relationship with him. The court simply cannot discern how allowing Leary to remain on the force had any discriminatory effect on Ms. Cooper.
Ms. Cooper seems to suggest that she was denied equal protection because Sheriff Cottey and Scott Minier made certain public statements about the abuse incident with her husband. Even if they said the things she claims they did, their statements do not establish an equal protection violation. Ms. Cooper has not identified any similarly situated male victims of domestic abuse or battery that were treated differently than she.
Finally, Ms. Cooper argues that she resigned from the Justice Agency because of hostility from some employees of the Sheriff's Department and she had determined that her presence would hinder the work that needed to be performed. She asserts that her supervisors agreed that the hostility towards Cooper was causing problems with the agency meeting its mission, but offers only inadmissible hearsay to support this assertion. (Cooper Aff. ¶¶ 39-40.) Even if all the claims that Ms. Cooper makes about the hostility were true, they fail to raise a genuine issue as to whether a reasonable person would be compelled to resign. And, even if a reasonable person would have been compelled to resign, Ms. Cooper offers no evidence to support a reasonable inference that this hostility was motivated by impermissible discrimination, which she must do in order to prevail on her equal protection claim. See, e.g., E.E.O.C. v. Univ. of Chicago Hosps., 276 F.3d 326, 333 (7th Cir. 2002) (stating "the plaintiff must show that the constructive discharge was motivated by discriminatory intent") (Title VII case); Bennington v. Caterpillar Inc., 275 F.3d 654, 660 (7th Cir. 2001) ("Bennington must also demonstrate that the working conditions were intolerable because of impermissible age discrimination.") (emphasis in original). As stated, Ms. Cooper testified that the treatment was because of her husband's arrest and resignation from the Sheriff's Department. Ms. Cooper has offered insufficient evidence to raise a reasonable inference that the treatment of her by some Sheriff's Department employees was because of impermissible gender discrimination.
The court finds that Ms. Cooper has not presented sufficient evidence to raise a reasonable inference that the Defendants' actions had both a discriminatory effect on her and a discriminatory purpose. Therefore, summary judgment should be GRANTED Defendants on her § 1983 claim premised upon an alleged equal protection violation.
C. Plaintiff's Evidence and Arguments
This section addresses various evidentiary submissions offered by Ms. Cooper and related arguments to explain why such evidence fails to create a genuine issue of material fact for trial.
Ms. Cooper asserts that she was regularly required to attend political functions at least from the time she became a deputy and, that after she became a supervisor, she was also required to instruct her staff to serve political duties. She cites her deposition, pages 57-65 for support. The cited pages establish only that Chief Leary circulated the April 7 memo regarding putting up yard signs on April 17 and, possibly that same day, held a meeting and said that participation was mandatory. (Pl.'s Dep. at 59-60.) Ms. Cooper also testified that people complained to her about having to work on Saturday and she went to Chief Leary who advised her that no one would be excused from participating. (Id. at 61.) None of this evidence supports a reasonable inference that Ms. Cooper was regularly required to attend political functions or assign political duties to her staff.
Ms. Cooper asserts that (1) she "repeatedly complained about the requirement of doing political work"; (2) when Chief Leary "gave me direct orders to campaign, which he did every election," she complained to him; (3) Chief Leary told her she "had no choice"; (4) once she told Chief Leary she was not going to help with the political work and he told her she would work as directed or "should not show up for work the next day"; (5) she complained to Mr. Cooper who said he could not interfere with Chief Leary's orders on campaign work"; and (6) "[i]t was clear to [her] that [she] had to work the campaigns and instruct [her] staff to do so or be fired." (Pl.'s Aff. ¶¶ 31-36.) The last assertion is conclusory, self-serving, and but for the single occasion in April 1999, the record lacks support for the assertion that Ms. Cooper had to instruct her staff to work the campaigns. "[C]onclusory allegations and self-serving affidavits, without support in the record, do not create a triable issue of fact." Hall v. Bodine Elec. Co., 276 F.3d 345, 354 (7th Cir. 2002). The first, third, fourth and fifth assertions lack any time frame of when such things occurred. In the absence of any indication in the record otherwise, no reasonable jury could find that Ms. Cooper refers in the third and fourth assertions to any occasion other than when she first became a deputy in 1995. Further, as Defendants point out, these assertions do not support a finding that Ms. Cooper actually complied with the alleged orders to do campaign and political work. Thus, these assertions fail to create a triable issue on whether Ms. Cooper was regularly required to attend political functions and required to instruct her staff to serve political duties or else be fired. Rather, the evidence discloses that despite complaining about participating in political activities, Ms. Cooper was repeatedly promoted within the Sheriff's Department.
Ms. Cooper argues that she had been required to actively help the Republican campaigns from the time she first became a deputy, citing paragraph 29 of her affidavit which states: "From at least the time that I first became a civil deputy, I was given instructions and required by my supervisors to work every electoral campaign on behalf of the local Republican party." (Pl.'s Aff. ¶ 29.) As stated, "conclusory allegations and self-serving affidavits, without support in the record, do not create a triable issue of fact." Hall, 276 F.3d at 354. The cited paragraph is conclusory: it fails to identify which supervisors imposed such requirements on Ms. Cooper, what the specific instructions were, and when or how they were imposed. The paragraph also is self-serving and, but for the April 1999 yard sign order, without support in the record, so it fails to create a jury question.
Ms. Cooper states that she complained to Major Offutt about being forced to do political work, but he told her he had no authority in the matter. What Major Offutt may have told Ms. Cooper is inadmissible hearsay. Plaintiff has offered no exception to the hearsay rules, and thus, her testimony about what Major Offutt may have said is inadmissible. Similarly, her testimony about what her husband told her when she consulted him after the April 19 yelling incident with Chief Leary constitutes hearsay and is thus inadmissible as Ms. Cooper has not identified any applicable hearsay exception.
Ms. Cottey contends that Sheriff Cottey did nothing to stop the requirement that people work on the Saturday in April to put up yard signs, but she cites no evidence as support. The record, however, discloses that Sheriff Cottey directed Colonel Scott Minier to order that Deputy Chief Leary rescind the memo and inform him that participation was to be voluntary. (Cotty Decl. ¶ 4.) Ms. Cooper argues that Sheriff Cottey disproved of the memorandum, but did not disprove of the requirement that civil staff assist the Republican Party. She cites Sheriff Cottey's deposition at page 20 and her deposition at pages 60-64 for support. None of the cited pages of either deposition support this argument.
Ms. Cooper contends that she reported in her deposition that she was required to sell tickets for a political fundraiser. (Pl.'s Dep. errata sheet). The context reveals that this luncheon at issue occurred around the time that Ms. Cooper was promoted to sergeant, which occurred sometime in 1997. (Pl.'s Dep. at 26-27, 29-30.) Thus, this incident is outside the two year limitations period and cannot be the basis for Ms. Cooper's claims.
IV. Conclusion
No genuine issue of material fact exists, and Defendants are entitled to judgment as a matter of law. Therefore, their motion for summary judgment will be GRANTED. Judgment will be entered accordingly.
ALL OF WHICH IS ORDERED this 11th day of September 2002.