McDaniel v. Elgin

GARY McDANIEL, Plaintiff

v. MARY ELGIN, Calumet Township Trustee;INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT, Defendants

CIVIL NO. 2:09 cv 119

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA HAMMOND DIVISION

ENTERED: October 19, 2011

OPINION AND ORDER

This matter is before the court on the Motion for Summary Judgment [DE 74] filed by the defendant, Mary Elgin, on August 15, 2011, and the Motion for Summary Disposition Regarding Defendant's Motion for Summary Judgment [DE 90] filed by defendant Elgin on October 5, 2011. Because the plaintiff, Gary McDaniel, did not respond to Elgin's motion for summary judgment and the time to do so has since passed, the Motion for Summary Disposition Regarding Defendant's Motion for Summary Judgment [DE 90] is GRANTED. For the reasons set forth below, the Motion for Summary Judgment [DE 74] also is GRANTED.

Background

The plaintiff, Gary McDaniel, began working in the office of the Calumet Township Trustee in November 1997, serving under Dozier Allen. In 2003, Mary Elgin became the Calumet Township Trustee. During Elgin's tenure, McDaniel reported to severaldifferent supervisors. In 2004, Rose Curtis and JoAnn Robinson were McDaniel's supervisors and were responsible for assigning McDaniel tasks. Cora Harris, Dectrick Raspberry, Marsha Moore, Phyllis Harvey, and Magnolia Lewis supervised McDaniel from January 2007 through October 2008. McDaniel's supervisors reported to the Chief Deputy, Donna Frazier, and Frazier and all other township employees reported to Elgin.

The Calumet Township Trustees Office was responsible for providing temporary and emergency assistance to township residents. A service investigator was assigned to each application for assistance. The investigator was required to interview and investigate the application to determine if the applicant was eligible for assistance. A service investigator supervisor had to approve the applicant's request for relief assistance and was responsible for supervising the daily activities of service investigators. However, the service investigator supervisors did not have the authority to hire, fire, promote, or demote employees. Elgin was the only official with this authority.

From January 2003 to October 2008, McDaniel was assigned to the south office and worked at a desk located in an open floor area. McDaniel was responsible for confirming and verifying applicants' information and was required to leave the office periodically. In December 2003, Clarence Colby, the deputy overMcDaniel's department, disciplined him for being tardy and falsifying an attendance report and recommended his termination. McDaniel said that he did not intend to falsify his attendance record, and Frazier rejected Colby's recommendation to terminate McDaniel. Frazier reprimanded McDaniel and assigned him to the General Assistance Department at the south office as a service investigator.

McDaniel was disciplined numerous times throughout his employment as a service investigator. In 2004, Curtis, Lewis, and Robinson recommended that McDaniel be reprimanded because he failed to follow office procedure with regard to an applicant's request for rental assistance, violated office policies and procedures, and approved township assistance for an ineligible applicant. Harvey also recommended that McDaniel be reprimanded due to unsatisfactory work and absenteeism. In 2004, McDaniel was docked approximately 44 hours pay over four pay periods for excessive absenteeism, and in 2007, he was docked approximately 37 hours for absenteeism. Harvey again cited McDaniel for absenteeism in September 2006 and in November 2006. Robinson issued an oral reprimand notice because McDaniel failed to follow procedures. Frazier denied McDaniel a promotion to general assistance supervisor in February 2007. McDaniel again was disciplined for failing to follow procedures in June 2007, andthat same month, Lewis recommended the issuance of a written reprimand but it later was changed to an oral reprimand.

McDaniel also received poor reviews in 2006 and 2008, indicating that improvement was needed. He received low marks for quality of work, interpersonal skills, initiative, flexibility, and attendance.

On January 9, 2008, McDaniel reported to Lewis that he felt that Harvey was trying to single him out for no reason. Lewis confronted Harvey, and she responded that she thought McDaniel did not respect her. Lewis made a written report and held a meeting on January 10, 2008, with Harvey, McDaniel, and Harris. McDaniel did not raise any allegations of sexual harassment against Harvey in his complaint to Lewis or in the meeting.

Following this meeting, Harvey questioned McDaniel about two applications for assistance. McDaniel told Harvey that she was "starting to get on [his] nerves." (Deft. Exh. T44 p. 6) Harvey reported the incident to Frazier.

McDaniel continued to get reprimanded from other supervisors. In June 2008, Harris issued an oral reprimand notice, and Moore reprimanded McDaniel for approving payment of an ineligible applicant's NIPSCO bill. McDaniel again was docked pay over four pay periods for excessive absenteeism.

McDaniel filed a charge of discrimination with the Gary Human Relations Commission on January 14, 2008. In his charge, McDaniel alleged that he was sexually harassed. The EEOC charge was investigated by the Gary Human Relations Commission and the Equal Employment Opportunity Commission. Elgin had no knowledge of the allegations of sexual harassment until McDaniel filed the charge with the EEOC. McDaniel gave oral notice to Elgin on January 16, 2008, and written notice on January 17, 2008.

Elgin began investigating the charge immediately after receiving notice. She concluded that Harvey did not harass McDaniel and that any friction between the two related to legitimate employment matters. Elgin's investigation revealed that McDaniel never reported the sexual harassment to his supervisor, although he reported other behavior. McDaniel told Elgin that Harvey asked him out to dinner and that he continually suffered from job harassment and intimidation beginning in February 2007. However, McDaniel did not report the harassment because he "had other priorities." McDaniel also reported that Harvey gave him too many service slips. Harvey would rush service slips to him, which he viewed as harassment, though not of a sexual nature. However, it was common practice and appropriate for supervisors to pass out service slips. Elgin offered to transfer Harvey to another office, but he refused because he did not own a car.

In his charge filed with the Gary Human Relations Commission, McDaniel cited four incidents of sexual harassment that McDaniel did not report to Elgin during her investigation. First, McDaniel alleges that Harvey grabbed him, hugged him, kissed his ear and neck, felt between his legs, and reached for his zipper in February 2007. Second, he stated that Harvey was waiting to say something to him at the 2007 Christmas party, although he was trying to avoid her. His third allegation was that Rosemary Rodriguez witnessed Harvey rubbing between his legs and trying to kiss him. Harvey told him, "If you don't come to me, I'll come to you. You can't get away from me." Finally, McDaniel alleges that Harvey grabbed his buttocks and tried to rub it up.

McDaniel identified several co-workers and supervisors who he believed witnessed the harassment. McDaniel first reported that Raspberry witnessed McDaniel refusing to go into Harvey's office. Raspberry has denied ever observing this behavior, nor did he observe any acts of sexual harassment by Harvey. Other employees in the south office also have denied ever observing Harvey sexually harassing McDaniel, nor do they believe Harvey called McDaniel into her office more often than she called other employees. McDaniel identified Rodriguez as a witness to Harvey kissing him and rubbing his crotch. Rodriguez testified that shenever saw these events and that McDaniel never told her that Harvey wanted to make out with him, that Harvey liked him, or that Harvey sexually harassed him. In fact, Rodriguez was on sick leave the day Harvey allegedly rubbed McDaniel's crotch and kissed him. Rodriguez also testified that Harvey did not pass over other service providers to hand out service slips to McDaniel.

Elgin employed an anti-discrimination policy that prohibited sexually harassing or offensive conduct in the work place. The policy outlined the type of conduct prohibited and the punishment for any such behavior. The policy directed an employee who was subjected to unwelcome harassment to report the conduct immediately. McDaniel received a copy of the policy in September 2005, but he did not report the harassment.

McDaniel ultimately was fired in October 2008, due to budgetary constraints and the south office closing. The State of Indiana issued a mandate that reduced funding. The plan to reduce the workforce was created in reaction to the mandate and was approved in July 2008. At that time, Frazier and Gloria Jones began to review employees' personnel files and analyzed their job performances to identify the employees who should be terminated. Elgin evaluated Frazier and Jones' recommendationand McDaniel's performance record when deciding to terminate his employment.

The EEOC and Gary Human Relations Commission investigated the charge and issued McDaniel a notice of dismissal and right to sue. McDaniel filed his pro se complaint on April 28, 2009. McDaniel alleges that he was sexually harassed, he was fired in retaliation for filing a charge of discrimination with the EEOC and participating in another employee's, Velia Taneff, federal case, and that his termination was politically motivated because he refused to purchase tickets to political fundraisers. McDaniel subsequently hired an attorney, but his attorney did not file an amended complaint.

Elgin filed a motion for summary judgment on August 15, 2011. After being denied a ...