Jones v. Metro. Sch. Dist. of Decatur Twp.

905 F.Supp.2d 923

Keith JONES, Plaintiff,

v.METROPOLITAN SCHOOL DISTRICT OF DECATUR TOWNSHIP, Jon Bailey, Bose McKinney & Evans, and Jeffrey Baer, Defendants.

No. 1:12–cv–00650–JMS–DML.

United States District Court,

S.D. Indiana,

Indianapolis Division.

Oct. 26, 2012.

Adam Lenkowsky, Kenneth T. Roberts, Yang Kyoung Nam, Roberts & Bishop, Indianapolis, IN, for Plaintiff.

Jonathan Lamont Mayes, Bose McKinney & Evans, LLP, Indianapolis, IN.

Andrew M. McNeil, Karen G. Sharp, Bose McKinney & Evans, LLP, Indianapolis, IN, for Defendants.

ORDER

JANE MAGNUS–STINSON, District Judge.

Presently before the Court in this employment matter are a Motion for Judgment on the Pleadings, [dkt. 18], and a Motion for Sanctions, [dkt. 23], both filed by Defendants Metropolitan School District of Decatur Township ( “MSD” ), Donald Stinson, Susan Adams,¹ Dr. Jeffrey Baer, Jon Bailey, and Bose McKinney & Evans ( “the Bose Firm” ). For the foregoing reasons, the Court grants the motions in part and denies them in part.

I.Background

Mr. Jones was employed by MSD as a school police officer from August 1996 until his termination in June 2010. [Dkt. 6 at 1–2, ¶ 4, 12.] Mr. Jones is a Law Enforcement Officer, certified by the Indiana Law Enforcement Training Board. [ Id. at 3, ¶ 14.] In his position at MSD, Mr. Jones performed general police patrol and school security duties and could make arrests through special provision with the Marion County Sheriff's Department. [ Id. at 2, ¶ 12.] He was the only afternoon shift patrol officer assigned at MSD, working from 3:00 p.m. to 11:00 p.m. [ Id. at 3, ¶ 13.]

Prior to his discharge, Mr. Jones' supervisor, Chief David Kinsey, informed him that MSD's administration was considering eliminating the afternoon shift police officer position, which would lead to Mr. Jones' termination. [ Id. at 3, ¶ 16.] Chief Kinsey also advised Mr. Jones that Dr. Jeffrey Baer, one of the assistant school superintendents, was “adamant about the elimination” of the position. [ Id.] Chief Kinsey noted that he believed eliminating the afternoon shift police officer position was “a dangerous idea, given the amount of crime in [and] around the MSD's main campus and other school properties during the late afternoon and evening.” [ Id. at 3, ¶ 17.]

On June 30, 2010, MSD terminated Mr. Jones' employment. [ Id. at 3, ¶ 18.] Mr. Jones received a formal letter from MSD in mid-July, stating that the School Board had voted to terminate Mr. Jones' employment due to “fiscal restructuring.” [ Id. at 3–4, ¶ 19.] Mr. Jones alleges that around July 30, 2010, “certain administrators received close to a million dollars in perks disguised as ‘savings' in the future.” [ Id.] Mr. Jones claims that he “was on good terms with the school administrators, staff and students” and “was never brought in for any sort of employee corrective counseling all during the time of his employment.” [Dkt. 6 at 3, ¶ 15.]

On January 4, 2011, Mr. Jones filed a Charge with the Equal Employment Opportunity Commission ( “EEOC” ), alleging that MSD had discriminated against him based on his age when it terminated his employment. [ Id. at 4, ¶ 22.] The EEOC Charge eventually resulted in Mr. Jones filing a lawsuit against MSD alleging violations of the Age Discrimination in Employment Act ( “ADEA” ) and the Americans with Disabilities Act ( “ADA” ) ( “the ADEA/ADA Lawsuit” ). [Dkt. 1 in Jones v. Metropolitan School Dist. Of Decatur Township, 1:11–cv–0973–SEB–MJD.] ²The ADEA/ADA Lawsuit and the EEOC Charge related to Mr. Jones' allegation that MSD terminated his employment because he is a cancer survivor and had been “red-flagged” by MSD's insurance carrier. [ Id. at 5, ¶ 21.]

On January 19, 2011, Dr. Baer was “recalled from retirement” to write a letter for Mr. Jones' personnel file which stated that he did not believe Mr. Jones was a good employee and that MSD had several problems with him during his employment including: (1) “[p]articipating in and starting damaging rumors about fellow employees”; (2) being “very negative about the district”; and (3) “misusing a corporation vehicle” by being seen outside of the district during his shift in that vehicle ( “the Baer Letter” ). [Dkts. 6 at 4, ¶ 23; 6–1 at 1.] Mr. Jones claims that he “had no previous write ups in his tenure” at MSD. [Dkt. 6 at 4, ¶ 23.]

Subsequently, through his representation of MSD in the EEOC proceeding, Attorney Jon Bailey of the Bose Firm wrote a letter to the EEOC to respond to the EEOC Charge on MSD's behalf. [ Id. at 6, ¶ 45.] In the letter, Mr. Bailey referred to the Baer Letter, attached it as an exhibit, noted that Dr. Baer's reasons for selecting Mr. Jones for termination were set forth in the Baer Letter, and stated that Mr. Jones' job performance was “less than satisfactory.” [Dkt. 6–2 at 2–3.]

Based on MSD's response to the EEOC Charge, and Mr. Bailey's and the Bose Firm's representation of MSD in that proceeding, Mr. Jones filed the instant lawsuit on May 14, 2012, [dkt. 1], and the operative Amended Complaint on May 19, 2012, [dkt. 6]. Along with MSD, Dr. Baer, Mr. Bailey, and the Bose Firm, Mr. Jones also named Susan Adams and Donald Stinson, two MSD employees, as defendants. [ Id.] Mr. Jones alleged the following claims: (1) retaliation under the ADEA and § 1981 against MSD, Ms. Adams, Mr. Stinson, and Dr. Baer, [dkt. 6 at 4–5, ¶¶ 20–29]; (2) civil conspiracy against Ms. Adams, Mr. Stinson, and Dr. Baer, [ id. at 5–8, ¶¶ 30–43]; (3) attorney deceit against Mr. Bailey and the Bose Firm, [ id. at 8–9, ¶¶ 44–49]; (4) intentional infliction of emotional distress against all defendants, [ id. at 9, ¶¶ 50–54]; and (5) defamation per se against MSD and Dr. Baer, [ id. at 9–10, ¶¶ 55–68.] After briefing on the pending motions, and after oral argument on those motions, Mr. Jones abandoned all claims under § 1981, his civil conspiracy claim, his intentional infliction of emotional distress claim, his defamation claim against MSD, all claims against Ms. Adams and Mr. Stinson, and his ADEA retaliation claim against all individual defendants. [Dkts. 32; 34.] Accordingly, the three remaining claims are: retaliation under the ADEA against MSD, attorney deceit against Mr. Bailey and the Bose Firm, and defamation per se against Dr. Baer.

II.Motion for Judgment on the Pleadings

A. Standard of Review

To survive a motion for judgment on the pleadings directed to the sufficiency of the complaint, a plaintiff must do two things: the plaintiff “must provide ... enough detail to give the defendant fair notice of what the claim is and the grounds upon which it rests, and, through his allegations, show that it is plausible, rather than merely speculative, that he is entitled to relief.” Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir.2008) (citations omitted). In deciding whether the plaintiff has accomplished those tasks, the Court assumes the truth of the nonconclusory allegations in the complaint and gives the plaintiff the benefit of the inferences from the allegations. Id. at 1081 (citations omitted).

B. Discussion

1. ADEA Retaliation Claim

In support of its Motion for Judgment on the Pleadings regarding Mr. Jones' ADEA retaliation claim, MSD argues that Mr. Jones has not stated a claim for retaliation because: (1) having Dr. Baer write the Baer Letter in response to the EEOC Charge and placing the Baer Letter in Mr. Jones' personnel file are not adverse actions, [dkt. 19 at 9–10]; and (2) Mr. Jones has not sufficiently alleged that there is a causal connection between Mr. Jones' filing of the EEOC Charge and the placement of the Baer Letter in Mr. Jones' personnel file, [dkt. 26 at 7].

Mr. Jones argues in response that he has alleged a prima facie case of retaliation, including that: (1) he was engaged in statutorily protected activity (filing the EEOC Charge); (2) he suffered adverse actions when Dr. Baer wrote the Baer Letter and it was placed in his personnel file; and (3) the temporal proximity between the filing of the EEOC Charge and the Baer Letter shows a causal relation between the two. [Dkt. 22 at 4–7.] He also asserts that the fact that he had never been disciplined during his employment and that the “alleged misconduct in [the Baer Letter] is a mere fabrication” are further indications that the two events are causally related. [ Id. at 7–8.]

The ADEA prohibits retaliation by an employer in response to an employee filing a charge with the EEOC. 29 U.S.C. § 623(d). See also Turner v. The Saloon, Ltd., 595 F.3d 679, 690 (7th Cir.2010) (finding filing of EEOC charge followed by termination could support ADA retaliation claim if causal relationship between the two events could be established). To state a claim for retaliation, the plaintiff must allege that: “(1) he or she engaged in a statutorily protected activity; (2) he or she suffered an adverse action; and (3) a causal link between the protected activity and the adverse action [exists].' ” Richmond–Jeffers v. Porter Twp. Sch. Corp., 2012 WL 1714403, *11, 2012 U.S. Dist. LEXIS 67742, *29 (N.D.Ind.2012). “[R]etaliation must be a but-for cause of a materially adverse action, not merely a contributing factor.” Meade v. Kroger, 858 F.Supp.2d 977, 993 (N.D.Ind.2012) (citations omitted).

a. Statutorily Protected Activity

It is well-settled that the filing of an EEOC charge is considered a statutorily protected activity for purposes of asserting an ADEA retaliation claims. See, e.g., Smith v. Lafayette Bank & Trust Co., 674 F.3d 655, 658 (7th Cir.2012). See also Tomanovich v. City of Indianapolis, 457 F.3d 656, 663 (7th Cir.2006); Ajayi v. Aramark Bus. Servs., 336 F.3d 520, 533 (7th Cir.2003) (holding there is “no dispute that [the plaintiff] satisfied the first element by filing her EEOC charge”). MSD does not dispute that Mr. Jones has met this first requirement, so the Court moves on to the second and third requirements of an ADEA retaliation claim.

b. Adverse Action

MSD argues that Mr. Jones has not alleged he suffered any adverse...