Tomsheck v. Town of Long Beach The

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

AARON TOMSHECK, )

)

Plaintiff, )

)

v. ) Case No. 3:17-CV-120 JD

)

TOWN OF LONG BEACH, et al., )

)

Defendants. )

OPINION AND ORDER

Aaron Tomsheck was terminated from his job as Building Commissioner of the Town of

Long Beach, Indiana, following months of conflict with other members of the Building

Commission. He then sued the Town and each member of the Town Council. He claims he was

fired for engaging in speech protected by the First Amendment—specifically, his testimony in a

civil case by homeowners challenging decisions by the Town’s Board of Zoning Appeals—and

he asserts related claims under state law for wrongful termination.

The defendants moved for summary judgment, raising two principal arguments: (1) that

Mr. Tomsheck’s speech was not protected by the First Amendment (and at the very least, it was

not clearly established that the speech was protected, as required to avoid qualified immunity),

and (2) that he was not fired for that speech, but for other reasons including his insubordination

and defiance of the Building Commission’s authority. In response, Mr. Tomsheck cited several

facts that he believes cast suspicion on the reason he was fired. Not only does that argument fall

short, but Mr. Tomsheck made no attempt at all to respond to the first argument and demonstrate

that he engaged in protected speech. The Court thus grants summary judgment on the federal

claims and relinquishes supplemental jurisdiction over the state claims.

I. FACTUAL BACKGROUND

The facts are set forth in detail in the defendants’ Statement of Undisputed Material

Facts—all of which are deemed admitted because Mr. Tomsheck failed to submit a Statement of

Genuine Disputes, as required by the local rules. N.D. Ind. Local Rule 56-1(b)(2); Fed. R. Civ. P.

56(e). To summarize, Mr. Tomsheck began serving as the Building Commissioner for the Town

of Long Beach in 2014. In that position, he had responsibility for the enforcement of the Town’s

building and zoning ordinances. The Town also has a Building Commission, which shares

responsibility for the administration and enforcement of the building and zoning ordinances.

An election in 2015 dramatically changed the make-up of the Long Beach Town Council.

All of the members voted into office in that election had run on a platform that included

preserving the right of access to the beach and properly administering Town ordinances. Upon

taking office in January 2016, the new councilmembers made new appointments to the Building

Commission. The newly constituted Building Commission in turn elected a new chair, displacing

Mr. Tomsheck from his previous role as de facto president of the Building Commission. The

Building Commission then adopted new directives that limited Mr. Tomsheck’s authority as

Building Commissioner and imposed a greater degree of oversight over his work.

Mr. Tomsheck and the Building Commission did not see eye-to-eye on how to best

interpret and enforce the town’s building code, or on the respective authority of the Building

Commissioner and the Building Commission. Those disagreements came to a head in a dispute

over three homeowners’ attempts to build seawalls on their properties adjacent to Lake

Michigan—projects that were contentious and generated public opposition. Mr. Tomsheck,

believing the seawalls should be allowed, took various actions to facilitate their approval and

construction. The Building Commission, holding the opposite view, responded each time by

taking various actions to prevent their construction. The homeowners then filed suit in state

court, and Mr. Tomsheck testified on multiple occasions over the course of that suit. He testified,

among other things, that he believed that the Building Commission had no authority over the

administration or enforcement of the Town’s building and zoning codes; that the Building

Commission had no authority to supervise him as Building Commissioner; that the Town’s

building and zoning ordinances were largely invalid; and that the Commission’s interpretation of

the ordinances was incorrect.

Mr. Tomsheck’s opposition to the Building Commission was not limited to his testimony.

In various other communications made in his role as Building Commissioner, he expressed

disagreement with the Commission’s interpretation of building and zoning ordinances. For

example, he sent an email to several members of the public, including one of the homeowners

and an attorney in the pending suit against the Town, in which he disagreed with the

Commission’s interpretation of the building code. Mr. Tomsheck acknowledged that this email

violated explicit instructions not to communicate with the suing homeowners or their attorney.

In May 2016, when it came time for Mr. Tomsheck to present a report at the

Commission’s public meeting, he refused to do so. Instead, he challenged the Commission’s

authority and argued that it was unlawfully constituted, and asserted that he would report only to

the Town Council, as he refused to accept the Commission’s authority. Later that month, the

Town Council held an executive session to discuss Mr. Tomsheck’s performance. Then, in June

2016, the Town Council held a special meeting and unanimously voted to terminate Mr.

Tomsheck’s employment. The councilmembers later testified to the reasons for their votes, with

common themes being Mr. Tomsheck’s insubordination and his refusal to cooperate with the

Commission. None of them testified that they considered his testimony; some were not even

aware of it at the time.

Mr. Tomsheck responded with this suit against the Town and the five members of the

Town Council. Discovery has closed, and the defendants filed a motion for summary judgment,

which is now ripe.

II. STANDARD OF REVIEW

A court must grant summary judgment if the movant shows that there “is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). A “material” fact is one identified by the substantive law as affecting the outcome

of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine issue” exists

with respect to any material fact when “the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Id. Where a factual record taken as a whole could not lead a

rational trier of fact to find for the non-moving party, there is no genuine issue for trial, and

summary judgment should be granted. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986). In determining whether a genuine issue of material fact exists, courts must

construe all facts in the light most favorable to the non-moving party and draw all reasonable and

justifiable inferences in that party’s favor. Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir. 2008);

King v. Preferred Tech. Grp., 166 F.3d 887, 890 (7th Cir. 1999). However, the non-moving party

cannot simply rest on its pleadings but must present evidence sufficient to show the existence of

each element of its case on which it will bear the burden at trial. Celotex Corp. v. Catrett, 477

U.S. 317, 322–23 (1986); Robin v. Espo Eng’g Corp., 200 F.3d 1081, 1088 (7th Cir. 2000).

III. DISCUSSION

Mr. Tomsheck claims that his firing violated his rights under both federal and state law.

As explained below, summary judgment is warranted on the federal claims, so the Court

relinquishes supplemental jurisdiction over the state claims.

A. First Amendment Retaliation

Mr. Tomsheck first asserts that the defendants violated his rights under the First

Amendment by firing him in retaliation for protected speech. A First Amendment retaliation

claim requires a plaintiff to prove that: “(1) he engaged in activity protected by the First

Amendment; (2) he suffered a deprivation that would likely deter First Amendment activity in

the future; and (3) the First Amendment activity was at least a motivating factor in the

defendants’ decision to take the retaliatory action.” McGreal v. Vill. of Orland Park, 850 F.3d

308, 312 (7th Cir. 2017). In moving for summary judgment, the defendants contest the first and

third elements. They argue that Mr. Tomsheck’s testimony did not constitute protected speech,

and that he wasn’t fired for that testimony anyway. The Court addresses both arguments, but Mr.

Tomsheck’s claims fail first and foremost because he failed to even address the first argument.

The threshold question in a First Amendment retaliation claim is whether the speech was

constitutionally protected. Kubiak v. City of Chi., 810 F.3d 476, 481 (7th Cir. 2016); McArdle v.

Peoria Sch. Dist. No. 150, 705 F.3d 751, 754 (7th Cir. 2013). “The inquiry into the protected

status of speech is one of law, not fact.” McArdle, 705 F.3d at 754. To be protected, speech must

have been made by an individual as a citizen—not pursuant to the individual’s duties as a

government employee—and must be on a matter of public concern. Kubiak, 810 F.3d at 481. Not

all speech that satisfies those elements receives protection, though. The government as an

employer has a “countervailing interest in controlling the operation of its workplaces.” Lane v.

Franks, 573 U.S. 228, 236 (2014); Garcetti v. Ceballos, 547 U.S. 410, 419 (2006) (noting that

when public employees “speak out, they can express views that contravene governmental

policies or impair the proper performance of governmental functions,” which could undermine

the government’s ability to efficiently provide public services). Thus, a court must balance the

interests of the individual in commenting upon matters of public concern, against the interest of

the government as an employer in promoting the efficiency of the public services it performs

through its employees. Pickering v. Board of Education, 391 U.S. 563, 568 (1968).

In moving for summary judgment, the defendants focus on the last part of this analysis.

They argue that even if Mr. Tomsheck’s testimony1 was made as a private citizen on a matter of

public concern, the Town’s interest in the effective administration of its services outweighed Mr.

Tomsheck’s interests, so the testimony does not qualify as protected speech. They argue, for

example, that Mr. Tomsheck’s testimony that the Commission had “usurped” his authority, and

his other testimony deprecating the Commission’s authority and its oversight of his position,

threatened to undermine the working relationships necessary to carry out the Town’s functions.

They also argue that his testimony that the Town’s building and zoning ordinances were invalid

and that its interpretation of its ordinances was incorrect threatened the Town’s ability to

properly administer those ordinances—which Mr. Tomsheck was charged with enforcing. In

sum, they argue that Mr. Tomsheck’s testimony “significantly threatened public confidence in

the lawful authority of the Building Commission under the Town’s ordinances, and in the ability

of the Town to efficiently and effectively administer and enforce its ordinances.” [DE 41 p. 18].

Even though this argument formed a principal basis for the defendants’ motion for

summary judgment, Mr. Tomsheck failed to respond to it at all, and made no effort to establish

that his speech was protected. In fact, his brief never even identifies what speech he engaged in

that he believes is protected. He has thus waived the issue, and summary judgment is warranted

on that basis alone. Summary judgment is the put up or shut up moment in a lawsuit. A party

opposing summary judgment must inform the district court of the reasons—legal or factual—

1 Though he made similar statements in other contexts, only his testimony could arguably have

been made as a private citizen, Lane, 573 U.S. at 238, as his other communications as building

commissioner would have been made pursuant to his official duties. See Garcetti, 547 U.S. 410.

why summary judgment should not be entered. Riley v. City of Kokomo, Ind. Hous. Auth., 909

F.3d 182, 190 (7th Cir. 2018); Packer v. Trs. of Ind. Univ. Sch. of Med., 800 F.3d 843, 849 (7th

Cir. 2015). “‘It is not the obligation of the court to research and construct the legal arguments

open to parties, especially when they are represented by counsel.’” Riley, 909 F.3d at 190

(quoting Beard v. Whitley Cty. TEMC, 840 F.2d 405, 408–09 (7th Cir. 1988)); see also Schaefer

v. Univ. Scaffolding & Equip., LLC, 839 F.3d 599, 607 (7th Cir. 2016) (“Perfunctory and

undeveloped arguments are waived, as are arguments unsupported by legal authority.”). The

defendants’ arguments on this issue may be disputable, but if so, it is Mr. Tomsheck’s duty to

explain why, and he did not do so. The Court could not deny summary judgment without

building an argument on Mr. Tomsheck’s behalf from the ground up, which is not the Court’s

role. United States v. Collins, 796 F.3d 829, 836 (7th Cir. 2015) (“The parties—not the courts—

must research and construct available legal arguments.”). Summary judgment is therefore

warranted for Mr. Tomsheck’s failure to show that he engaged in protected speech.

This waiver applies doubly to Mr. Tomsheck’s claims against the individuals, each of

whom asserted a defense of qualified immunity.2 Though qualified immunity is an affirmative

defense, once it is raised the plaintiff bears the burden of establishing that the right at issue is

clearly established. Sinn v. Lemmon, 911 F.3d 412, 418 (7th Cir. 2018). That requires a plaintiff

to show “that there is a case ‘on point or closely analogous’” such that “a reasonable government

employee would or should know that her conduct is unlawful.” Sebesta v. Davis, 878 F.3d 226,

234 (7th Cir. 2017). Having failed to argue that his speech was protected in the first place, Mr.

2 Mr. Tomsheck would face an uphill battle on that issue anyway: “To say that the line between

protected and unprotected speech is so unclear that a judge must engage in after-the-fact

balancing is practically to invite an immunity defense, for only a violation of clearly established

law permits an award of damages.” Comsys, Inc. v. Pacetti, 893 F.3d 468, 472 (7th Cir. 2018).

Tomsheck failed to carry his burden of showing that it was clearly established that his speech

was protected. Summary judgment is warranted for each of the individuals on that basis as well.

Even assuming Mr. Tomsheck had engaged in protected speech, his claim would still fail

on the causation element. Mr. Tomsheck raises three factors that he believes suggest an improper

motive for his firing, but that evidence falls well short of allowing an inference that the Council

voted to fire him because of his testimony. Mr. Tomsheck notes that after the Town Council

voted to terminate his employment, a councilmember read from a pre-prepared letter informing

him of the decision. Mr. Tomsheck argues that this shows that his firing was a foregone

conclusion. That says nothing at all, though, about why he was fired, nor does it suggest that he

was fired for an illicit reason. He also notes that at the executive session in which his

employment was discussed, a representative of the town clerk–treasurer was not present, which

he contends violated state law. Again, however, that fails to point to his testimony as the reason

for his firing, and it would require pure speculation to conclude that the representative was

excluded from the meeting for that reason.

Finally, Mr. Tomsheck argues that one of the defendants may have failed to produce an

email in response to a request for production of documents, which he suggests might warrant

further discovery. He never filed a motion to compel, though, nor did he file a Rule 56(d) motion

with a supporting affidavit showing the need to conduct additional discovery. Mr. Tomsheck also

argues that the failure to produce the email—a copy of which he already had from other

sources—may suggest a conspiracy between the Town Council and a local community group.

But not only is that pure speculation, he fails to show how that might draw any connection

between his testimony and his firing. Viewing all of this evidence in combination, no reasonable

juror could conclude that Mr. Tomsheck was fired because of his testimony. Summary judgment

is therefore warranted against Mr. Tomsheck on his First Amendment retaliation claims.

B. State Claims

Having resolved the federal claims—the only claims over which the Court has original

jurisdiction—the Court must decide whether to address the state claims as well. A district court

“may decline to exercise supplemental jurisdiction” over state-law claims if the court “has

dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). “Although

the decision is discretionary, ‘when all federal claims in a suit in federal court are dismissed

before trial, the presumption is that the court will relinquish federal jurisdiction over any

supplemental state-law claims.’” RWJ Mgmt. Co., Inc. v. BP Prods. N. Am., Inc., 672 F.3d 476,

479 (7th Cir. 2012) (quoting Al’s Serv. Ctr. v. BP Prods. N. Am., Inc., 599 F.3d 720, 727 (7th

Cir. 2010)). “The presumption is rebuttable, ‘but it should not be lightly abandoned, as it is based

on a legitimate and substantial concern with minimizing federal intrusion into areas of purely

state law.’” Id. (quoting Khan v. State Oil Co., 93 F.3d 1358, 1366 (7th Cir. 1996)). That course

is appropriate here. The state claims depend on questions of the scope and availability of a cause

of action under state law, as well as the applicability of any immunity under state law. Comity

dictates that the state courts should be permitted to address those matters of state law, should Mr.

Tomsheck decide to pursue those claims. The Court therefore relinquishes supplemental

jurisdiction over the state claims.

IV. CONCLUSION

The Court GRANTS the motion for summary judgment [DE 40] on the federal claims,

and relinquishes supplemental jurisdiction over the state claims. The Clerk is DIRECTED to

enter judgment accordingly.

SO ORDERED.

ENTERED: August 12, 2019

/s/ JON E. DEGUILIO

Judge

United States District Court