Opinion
Cause No. IP00-1146-C-M/S
May 10, 2001
Thomas D. Margolis, Attorney at Law, Muncie, IN.
William G. Bruns, Cannon Bruns, Muncie, IN.
Arthur G. Surguine, Jr., Hunt Suedhoff Kalamaros LLP Fort Wayne, IN.
ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT
Plaintiff Dan Terrell ("Terrell") filed this action against the City of Muncie, et al. ("Muncie" or "the City"), under 42 U.S.C. § 1983, 1985, and 1986, alleging primarily that it discriminated against him because of his political activities in violation of the First Amendment to the United States Constitution. Terrell worked as a driver for the Sanitation Department until the City terminated him for the unauthorized use of equipment. Terrell contends that the City actually fired him because he supported the City's Democratic candidate for mayor. Both parties have filed fully-briefed motions for summary judgment. The Court will now consider the parties' arguments.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Court notes that the parties have also filed motions to strike the affidavits of Dan Canan, Bobby Smith, and certain evidence designated by Terrell in support of his Motion for Summary Judgment. The Court DENIES those motions. The Court has reviewed the parties' factual submissions and has recited those facts that it found to be relevant and supported by the record.
Terrell worked for at least six years for Muncie's Sanitary District before his termination on November 11, 1999. Terrell Dep. at 10. On October 29, 1999, the City assigned Terrell and two other Sanitary District employees to work overtime collecting yard waste, which primarily consisted of leaves. Id. at 31-33; Bobby Smith Aff. ¶ 3. At some point Terrell stopped the truck at a piece of property he owned and had the other employees pick up two tires and a piece of garden hose from his property. Terrell Dep. 44-45. Terrell then apparently took the materials to a facility operated by East Central Recycling. Id. at 39-40.
On November 1, 1999, Rick Marlowe — one of the principals of East Central Recycling — sent a letter to Bobby Smith, Superintendent of the Muncie Sanitary District. In the letter, Marlowe informed Smith that he had seen Terrell using the Sanitary District truck and personnel to clean up Terrell's property at Elm and Centennial streets in Muncie. He also reported that the tires and a piece of hose had been mixed with a load of yard waste. Bobby Smith Aff. ¶ 4.
The very next day, Smith began investigating whether the statements in Marlowe's letter were accurate. He concluded his investigation on November 11, 1999. Id. ¶ 6. Smith determined that Terrell's use of the crew and the truck to clean up his own property constituted a misuse of equipment and a violation of the Sanitation District work rules. Id. ¶ 8. After discussing the issue with James Hendershot, Administrator of the Sanitary District, and Jennifer Abrell, an attorney who had previously performed legal services for the Sanitary District, Smith decided to terminate Terrell's employment. Id. ¶ 7. Mayor Canan, the incumbent Republican mayor, had no input into Smith's termination decision. Bobby Smith Aff. ¶ 12-13; Dan Canan Aff. ¶ 4. In fact, Canan was not even aware that the City was considering Terrell's termination until after it had happened. Canan Aff. ¶ 4.
Terrell apparently worked his scheduled hours from November 3-10, 1999.
Terrell contends that he and other Sanitary District employees were unaware that there was a departmental policy prohibiting the picking up of tires or anything else during the collection process. He also contends that the Sanitation District never provided its employees with a definition or explanation of what amounted to "unauthorized use of equipment."
Terrell believes that the City terminated him because of his political activities. The general election for the City was held November 2, 1999, which included the political race for mayor. For approximately one year prior to his termination Terrell had been actively and openly supporting a mayoral candidate, Jigger Smith. Terrell Dep. at 13. Smith was a Democrat running against Canan. Terrell performed activities on behalf of Jigger Smith's campaign, including walking in local parades, placing signs in yards, and attending partisan activities. Jigger Smith is the cousin of Bobby Smith. Terrell Dep. at 17. Jigger Smith's brother is also a Sanitary District employee. Id. at 62. Both Bobby Smith and Jigger Smith's brother supported Jigger Smith, with Bobby Smith serving on his election committee.
II. STANDARDS A. SUMMARY JUDGMENT STANDARDS
As stated by the Supreme Court, summary judgment is not a disfavored procedural shortcut, but rather is an integral part of the federal rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); see United Ass'n of Black Landscapers v. City of Milwaukee, 916 F.2d 1261, 1267-68 (7th Cir. 1990), cert. denied, 111 S.Ct. 1317 (1991). Motions for summary judgment are governed by Rule 56(c) of the Federal Rules of Civil Procedure, which provides in relevant part:
The judgment sought shall be rendered forthwith 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.
Once a party has made a properly-supported motion for summary judgment, the opposing party may not simply rest upon the pleadings but must instead submit evidentiary materials which "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). A genuine issue of material fact exists whenever "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The nonmoving party bears the burden of demonstrating that such a genuine issue of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 997 (7th Cir. 1996), cert. denied, 520 U.S. 1116 (1997). It is not the duty of the court to scour the record in search of evidence to defeat a motion for summary judgment; rather, the nonmoving party bears the responsibility of identifying the evidence upon which he relies. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). When the moving party has met the standard of Rule 56, summary judgment is mandatory. Celotex, 477 U.S. at 322-23; Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992).
In evaluating a motion for summary judgment, a court should draw all reasonable inferences from undisputed facts in favor of the nonmoving party and should view the disputed evidence in the light most favorable to the nonmoving party. Estate of Cole v. Fromm, 94 F.3d 254, 257 (7th Cir. 1996), cert. denied, 519 U.S. 1109 (1997). The mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. Only factual disputes that might affect the outcome of the suit in light of the substantive law will preclude summary judgment. Anderson, 477 U.S. at 248; JPM Inc. v. John Deere Indus. Equip. Co., 94 F.3d 270, 273 (7th Cir. 1996). Irrelevant or unnecessary facts do not deter summary judgment — even when in dispute. Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). "If the nonmoving party fails to establish the existence of an element essential to his case, one on which he would bear the burden of proof at trial, summary judgment must be granted to the moving party." Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir. 1996), cert. denied, 519 U.S. 1115 (1997).
B. SECTION 1983 STANDARDS
Title 42 U.S.C. § 1983 creates a federal cause of action for "the deprivation, under color of [state] law, of a citizen's rights, privileges, or immunities secured by the Constitution and laws of the United States." Spiegel v. Rabinovitz, 121 F.3d 251, 254 (7th Cir), cert. denied, 522 U.S. 998 (1997). Section 1983 is not itself a font for substantive rights; instead it acts as an instrument for vindicating federal rights conferred elsewhere. Id.
It is well settled that the firing of a nonpolicymaking public employee because of his political affiliation violates the First Amendment and is actionable under § 1983. See Cusson-Cobb v. O'Lessker, 953 F.2d 1079, 1080 (7th Cir. 1992). In this case, neither party contends that Terrell was a policymaker of the Sanitation Department.
To establish his prima facie case, Terrell has the initial burden of showing that his political support of Jigger Smith was constitutionally protected, and that such conduct was a substantial or motivating factor in the City's decision to terminate his employment. Mt. Healthy City Sch. Dist. Baker Dep. at. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). The City does not dispute that Terrell's activities in support of Jigger Smith were constitutionally protected. To establish that such conduct was a substantial or motivating factor in the decision to terminate him, however, Terrell has a burden of persuasion that he must meet by a preponderance of the evidence. Rakovich v. Wade, 850 F.2d 1180, 1189 (7th Cir.), cert. denied, 488 U.S. 968 (1988). That burden is not insignificant. For example, "a disgruntled employee fired for legitimate reasons would not be able to satisfy his burden merely by showing that he carried the political card of the opposition party or that he favored the defendant's opponent in the election." Nekolny v. Painter, 653 F.2d 1164, 1168 (7th Cir. 1981), cert. denied, 455 U.S. 1021 (1982). If Terrell succeeds in establishing his prima facie case, the burden of proof then shifts to the City to show that it would have taken the same action regardless of Terrell's political activities. Mt. Healthy, 429 U.S. at 287.
C. SECTION 1985
To prevail on a § 1985(3) claim, a plaintiff must allege and prove (1) a conspiracy; (2) that it was for the purpose of depriving any person or class of persons of the equal protection of the laws or of equal privileges and immunities under the laws; (3) an overt act in furtherance of the conspiracy; and (4) an injury to person or property or a deprivation of a federally protected right or privilege. Bryant v. Polston, 2000 WL 1670938, *7 (S.D.Ind. November 2, 2000), citing Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971). The Supreme Court has held that under this section "there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Griffin, 403 U.S. at 102.
Although neither party discusses the issue, it appears that subsection (3) of § 1985 is the only one applicable to Terrell's claims.
D. SECTION 1986
Terrell also brings a claim under 42 U.S.C. § 1986, which provides that "every person having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses to do so, if such wrongful act be committed, shall be liable to the party injured . . . for all damages caused by such wrongful act . . ." A cause of action under § 1986 is premised on a violation of § 1985. Craig v. Cohen, 80 F. Supp.2d 944, 947-948 (N.D.Ind. 2000). The section allows a plaintiff to bring suit against persons who are not members of the conspiracy but who are aware of it. Id., citing Hampton v. City of Chicago, 484 F.2d 602, 610 (7th Cir. 1973), cert. denied, 415 U.S. 917 (1974).
III. DISCUSSION A. HAS TERRELL ESTABLISHED THAT HIS POLITICAL ACTIVITY WAS A SUBSTANTIAL OR MOTIVATING FACTOR IN HIS TERMINATION?
As discussed, Terrell has the initial burden of showing by a preponderance of the evidence that his political activity was a substantial or motivating factor in the City's decision to terminate him. He has failed to do so. Other than the fact that Terrell worked on the campaign of Jigger Smith for nearly a year preceding the election on November 2, 1999, and that the City terminated him nine days later, Terrell has produced no evidence from which a rational jury could conclude that his efforts on behalf of Jigger Smith prompted his firing. Terrell hints that the timing of his termination, which came on the heels of the election, supports his claim that his political activity played a role in the City's decision. In the context of other discrimination claims, the Seventh Circuit has noted that suspicious timing alone is insufficient to create an inference that the adverse employment action was taken because of protected activity. See Oest v. Illinois Dept. of Corrections, 240 F.3d 605, 616 (7th Cir. 2001) (In Title VII retaliation case, court noted that "`[s]peculation based on suspicious timing alone' does not support a reasonable inference of retaliation; a causal link, again, is required."), citing Sauzek v. Exxon Coal USA, Inc., 202 F.3d 913, 918 (7th Cir. 2000).
The timing of Terrell's termination is even less suspicious in light of additional undisputed facts. For example, just ten days before he terminated Terrell, Bobby Smith began investigating a report from a third party that Terrell had been using the Sanitary District truck and personnel to clean up his own property at Elm and Centennial streets in Muncie. Bobby Smith also learned that at least two tires and a piece of hose had been mixed with a load of yard waste, which apparently normally consisted primarily of leaves. After a ten-day investigation, Smith decided to terminate Terrell for unauthorized use of equipment. Despite Terrell's claims that he was unaware of a prohibition against picking up tires and hoses, and that the City never defined for him the term "unauthorized use of equipment," there is nothing inherently suspicious about Bobby Smith's investigation. Moreover, Terrell has provided no evidence that Bobby Smith's investigation was somehow tainted. While Terrell may not agree with Bobby Smith's determination, and while he may have been unaware that his conduct violated the Department's rules, this does nothing to show that his political activities played any role whatsoever in his termination.
Moreover, it is an undisputed fact that Terrell had been actively and openly supporting Jigger Smith for at least one year before his termination. Terrell has not even suggested that the City discouraged such activity or somehow punished him for his political affiliations before the report about his unauthorized use of company equipment. Even more compelling is the fact that Bobby Smith — the person primarily responsible for Terrell's termination — was a cousin to Jigger Smith and actually worked on Jigger's election campaign. Terrell provides no explanation for why Bobby Smith would have terminated him for supporting his own cousin's campaign. In addition, the Sanitation Department also had on its payroll Jigger Smith's own brother, who similarly assisted in Jigger's campaign with impunity.
In sum, Terrell has simply failed to meet his burden of establishing a prima facie case. As the Seventh Circuit has noted, "a disgruntled employee fired for legitimate reasons would not be able to satisfy his burden merely by showing that he carried the political card of the opposition party or that he favored the defendant's opponent in the election." Nekolny, 653 F.2d at 1168. Other than the fact that he worked on the election campaign of Jigger Smith and lost his job nine days after the election, Terrell has produced no evidence from which a rational jury could conclude that his political activities were a substantial or motivating factor in his termination. As a result, the City is entitled to summary judgment on his § 1983 claim.
B. TERRELL'S CLAIMS UNDER SECTIONS 1985 AND 1986
The Court has concluded that the City is entitled to summary judgment on Terrell's claim under § 1983. In the absence of any evidence of an underlying violation of Terrell's rights, the City is also entitled to summary judgment on his conspiracy claim under § 1985. See Indianapolis Minority Contractors Ass'n., Inc. v. Wiley, 187 F.3d 743, 754 (7th Cir. 1999) (absence of any underlying violation of plaintiffs' rights precludes the possibility of success on claim for conspiracy to violate civil rights under § 1985). Accord, Jones v. Clinton, 990 F. Supp. 657, 676 (E.D.Ark. 1998) (after granting summary judgment on § 1983 claim, the court noted that "absent an underlying violation of federal law, there can be no actionable claim alleging a conspiracy to achieve that end"), citing Larson v. Miller, 76 F.3d 1446, 1456 (8th Cir. 1996) (noting that where there was no evidence from which a jury could conclude that any injury to or deprivation of the plaintiff's constitutional rights actually occurred, there was no § 1985(3) conspiracy claim); Wiggins v. Hitchens, 853 F. Supp. 505, 511 (D.D.C. 1994) (noting that "[t]here can be no recovery under section 1985(3) absent a violation of a substantive federal right"); Escamilla v. City of Santa Ana, 606 F. Supp. 928, 934 (C.D.Cal. 1985) (noting that "[t]here can be no action for conspiracy under 42 U.S.C. § 1985 or for failure to prevent a conspiracy under 42 U.S.C. § 1986 when no civil rights violation has occurred"), aff'd, 796 F.2d 266 (9th Cir. 1986); Garrison v. Burke, 1997 WL 37909, *10 (N.D.Ill. Jan. 27, 1997), aff'd, 165 F.3d 565 (7th Cir. 1999) (where there was no underlying deprivation of equal protection, plaintiff was precluded from establishing § 1985(3) claim as there was no showing of injury to person or property).
Similarly, in the absence of any § 1985 violation, Terrell's claim under § 1986 necessarily fails. See Grimes v. Smith, 776 F.2d 1359, 1363 n. 4 (7th Cir. 1985) (noting that liability under § 1986 is derivative of § 1985(3) liability; without a violation of § 1985(3), there can be no violation of § 1986). As a result, the Court GRANTS the City's Motion for Summary Judgment on Terrell's claims under 42 U.S.C. § 1985 and 1986.
IV. CONCLUSION
Terrell has failed to present sufficient evidence from which the Court could find a genuine issue of material fact on his claims under §§ 1983, 1985 and 1986. Accordingly, the Court GRANTS the City's Motion for Summary Judgment and DENIES Terrell's Motion for Summary Judgment on all of Terrell's claims. The Court also DENIES all motions to strike the parties filed during the briefing of these motions.
IT IS SO ORDERED.