Trinidad v. Sch. City of E. Chi.

SHIRLEY TRINIDAD, Plaintiff, v. SCHOOL CITY OF EAST CHICAGO, et al., Defendants.

No. 2:19 CV 90

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA HAMMOND DIVISION

February 12, 2021

OPINION and ORDER

This matter is before the court on defendants' motion for summary judgment. (DE # 30.) For the reasons that follow, defendants' motion will be granted in part and denied in part.

I. BACKGROUND

Plaintiff Shirley Trinidad is an ENL (English New Language) paraprofessional, assisting students for whom English is a second language, and is employed by defendant School City of East Chicago ("School City") at McKinley Elementary School. (DE # 32-1 at 2.) Beginning around January 23, 2017, plaintiff began smelling a chemical odor around a particular classroom. (Id. at 5.) The odor made her eyes burn and made her feel lightheaded, but her symptoms were not severe. (Id. at 5.) She continued to smell the odor and experience symptoms for the rest of the week, but it was not as strong. (Id. at 6.)

The following week, the odor was stronger, so plaintiff notified her principal, defendant David Alvarado, who also noticed the odor and called maintenance. (Id. at 9.) Plaintiff felt lightheaded, lethargic, and had irritated eyes and an achy chest, so she sat for a while in her supervisor's office. (Id. at 10.) After resting, she returned to work. (Id.)

The following day, January 31, 2017, plaintiff called off work and filed a complaint with the Indiana Occupational Safety and Health Administration, alleging that the odor caused an unsafe work environment. (Id. at 12-13.) The following day, plaintiff returned to work. (Id. at 14.) While she attempted to avoid the area with the odor, the odor was still strong and she again felt unwell. (Id. at 14-15.)

At some point, plaintiff learned that the school had removed everything from the room with the odor, cleaned the room, re-waxed the floors, and replaced the ceiling tiles. (Id.) However, it is unclear when she learned this information.

On February 2, 2017, plaintiff told defendant Alvarado that parents should be notified about the odor and the school should be closed. (Id. at 16.) Defendant Alvarado was not responsive to plaintiff's request. (Id. at 16-17.) Later that evening, plaintiff made the following Facebook post:

ATTENTION!!!! If you have children attending McKinley School, please be aware that there is a terrible chemical odor lurking throughout the building. Many children and staff had (sic) gotten sick. Vomiting, dizziness and headaches, burning eyes and achy chest are some of the symptoms.

(Id. at 17; DE # 32-2 at 2.)

The following day, plaintiff was suspended with pay for five days, and was instructed to remove the Facebook post. (DE # 32-1 at 19-20.) A few days later, plaintiffmet with the school's director of human resources and was told that the odor had been caused by dead mice. (Id. at 20.)

Plaintiff returned to work on February 14, 2017. (Id. at 22.) While the odor was not as strong as it had been, she still felt sick. (Id.) She was hospitalized in late March for a bacterial infection in her left lung, but no physician has opined that this infection was related to her employment with School City. (Id. at 23.)

In August 2017, plaintiff was transferred to Central High School. (Id. at 3.) When she was transferred, she was given different, and less desirable, job responsibilities, for which she claims she did not have appropriate training. (Id.) She was in this new position at the high school for approximately two months, and then was transferred to a position working with preschool children for another few months. (Id. at 3-4.) While she was working with preschool children, she was still not working in her capacity as a paraprofessional. (Id.) She was then transferred back to her previous position at McKinley. (Id. at 4.) Plaintiff filed a grievance through her union with regard to her transfer to Central High School. (Id. at 27.)

As a result of this incident, plaintiff filed the present suit in the Superior Court of Lake County. (DE # 4.) In her complaint, plaintiff names as defendants: School City; the Board of Education of School City; Paige McNulty, the Superintendent of School City; Sally Clark, the Director of Human Resources for School City; and David Alvarado, the Principal of McKinley Elementary School.¹ Defendants removed the case to this court.(DE # 1.) Plaintiff's complaint alleges the following claims against all defendants: (1) gross negligence; (2) retaliation in violation of her union contract; (3) violations of her First Amendment right to free speech; and (4) violations of the Indiana False Claims and Whistleblower's Protection Act and the Indiana Occupational Safety and Health Act.

Defendants have moved for summary judgment. (DE # 30.) This matter has been fully briefed and is ripe for ruling.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 56 requires the entry of summary judgment, after adequate time for discovery, against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In responding to a motion for summary judgment, the non-moving party must identify specific facts establishing that there is a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Palmer v. Marion County, 327 F.3d 588, 595 (7th Cir. 2003). In doing so, the non-moving party cannot rest on the pleadings alone, but must present fresh proof in support of its position. Anderson, 477 U.S. at 248; Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994). A dispute about a material fact is genuine only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. If no reasonable jury could find for the non-moving party, then there is no "genuine" dispute. Scott v. Harris, 550 U.S. 372, 380 (2007).

The court's role in deciding a summary judgment motion is not to evaluate the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Anderson, 477 U.S. at 249-50; Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir. 1994). In viewing the facts presented on a motion for summary judgment, a court must construe all facts in a light most favorable to the non-moving party and draw all legitimate inferences and resolve all doubts in favor of that party. NLFC, Inc. v. Devcom Mid-Am., Inc., 45 F.3d 231, 234 (7th Cir. 1995).

III. ANALYSIS

A. Motion to Strike

Defendants have filed a motion to strike documents attached to plaintiff's response brief, on the basis that these documents are inadmissible. (DE # 39.) Defendants also argue that their statement of material facts should be deemed admitted because plaintiff failed to comply with Northern District of Indiana Local Rule 56-1(b). (Id. at 1.) Plaintiff did not respond to defendants' motion. Defendants' motion to strike will be granted.

Pursuant to Federal Rule of Civil Procedure 56(c), a party asserting that a fact is genuinely disputed must support the assertion by citing to particular parts of materials in the record, or show that the materials cited do not establish the absence of a genuine dispute. If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Federal Rule of Civil Procedure 56(c), the court may consider the fact undisputed for purposes of the motion. Fed. R.Civ. P. 56(e). The enforcement of Federal Rule of Civil Procedure 56(e) is left to the sound discretion of the district court. See Archdiocese of Milwaukee v. Doe, 743 F.3d 1101, 1109-10 (7th Cir. 2014).

Additionally, in the Northern District of Indiana, Local Rule 56-1(b)(2) requires that a party opposing a motion for summary judgment file a response brief or appendix that contains a section labeled "Statement of Genuine Disputes" that identifies the material facts that the party contends are genuinely disputed so as to make a trial necessary. "[D]istrict courts are not obliged in our adversary system to scour the record looking for factual disputes and may adopt local rules reasonably designed to streamline the resolution of summary judgment motions." Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 922 (7th Cir. 1994). A Statement of Genuine Disputes "is a critical element of any response to a motion for summary judgment, because without it, the movant's version of the facts are accepted as undisputed." Carragher v. Ind. Toll Road Concession Co., 936 F. Supp. 2d 981, 985 n.1 (N.D. Ind. 2013); see also Caldwell v. Klemz, No. 2:14-CV-455, 2017 WL 4620693, at *3 (N.D. Ind. Oct. 12, 2017). It is within the district court's discretion to require strict compliance with its local rules governing summary judgment. Friend v. Valley View Cmty. Unit Sch. Dist. 365U, 789 F.3d 707, 711 (7th Cir. 2015); Petty v. City of Chicago, 754 F.3d 416, 420 (7th Cir. 2014).

In this case, under the heading "Statement of Facts," plaintiff merely states: "Plaintiff incorporates by reference the Notice of Claim she filed as her Statement of Fact." (DE # 37.) Plaintiff attached this document, as well as other documents, to herresponse brief. This in no way complies with Federal Rule of Civil Procedure 56 or Local Rule 56-1. It was plaintiff's responsibility to clearly identify any disputes of material fact, with appropriate citation to evidence in the record. In light of her failure to do so, defendants' motion to strike will be granted. Defendants' statements of material facts, as supported by the evidence in the record, are deemed admitted. The documents attached to plaintiff's response are stricken and will not be considered in the resolution of the pending motion for summary judgment.

B. Negligence

In Count I of her complaint, plaintiff alleges that defendants committed gross negligence...