Trinidad v. City of East Chicago

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

SHIRLEY TRINIDAD, )

)

Plaintiff, )

)

v. ) No. 2:19 CV 90

)

SCHOOL CITY OF EAST CHICAGO, )

et al., )

)

Defendants. )

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, plaintiff

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met 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.

1 Other named defendants were subsequently dismissed from this case.

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(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).

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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.

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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 her

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response 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 regarding the condition of the school, related to the odor, which resulted in

her becoming ill. (DE # 4 at 10-12.) Defendants argue that Count I is preempted by the

Indiana Worker’s Compensation Act (“WCA”). (DE # 31 at 6-7.)

The WCA contains an exclusive remedy provision. Ind. Code § 22-3-2-6. Under

this provision, the rights and remedies granted to an employee by the Act “on account

of personal injury or death by accident shall exclude all other rights and remedies of

such employee, the employee’s personal representatives, dependents, or next of kin, at

common law or otherwise, on account of such injury or death[.]” Id.

The Indiana Supreme Court has held that intentional torts are not precluded

under the language of this provision because the provision only applies to accidental

employment-related injury or death. Baker v. Westinghouse Elec. Corp., 637 N.E.2d 1271,

1273 (Ind. 1994). “Because injuries intentionally inflicted by an employer are not ‘by

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accident,’ suits arising therefrom are not barred by the compensation act.” Id. at 1271.

“[A]n injury occurs ‘by accident’ only when neither the sufferer nor the employer

intends it to result.” Id. at 1274. Mere employer negligence or recklessness is not

sufficient to establish the intent required to fall outside the scope of the exclusivity

provision. Id. at 1275. “The employer that acts in the belief that it is causing an

appreciable risk of harm to another may be negligent, and if the risk is great its conduct

may be characterized as reckless or wanton, but it is not an intentional wrong.” Id.

Rather, “nothing short of deliberate intent to inflict an injury, or actual knowledge that

an injury is certain to occur, will suffice.” Id.; see also Holbrook v. Lobdell-Emery Mfg. Co.,

219 F.3d 598, 601 (7th Cir. 2000).

Gross negligence is not an intentional tort. The Indiana Supreme Court has

defined gross negligence as “‘[a] conscious, voluntary act or omission in reckless

disregard of . . . the consequences to another party.’” N. Ind. Pub. Serv. Co. v. Sharp, 790

N.E.2d 462, 465 (Ind. 2003) (quoting BLACK’S LAW DICTIONARY 1057 (7th ed. 1999)).

“A finding of gross negligence is predicated on a showing of negligence, as it is the

intentional failure to perform a duty in reckless disregard of the consequences.”

McGowen v. Montes, 152 N.E.3d 654, 661 (Ind. Ct. App. 2020); see also Crawford v. City of

Muncie, 655 N.E.2d 614, 623, n.15 (Ind. Ct. App. 1995) (rejecting as “illogical” plaintiff’s

argument that gross negligence qualifies as an intentional tort).

Gross negligence is a claim that alleges precisely the type of reckless behavior

that is subject to the exclusivity provision of the WCA. See Agee v. Cent. Soya Co., 695

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N.E.2d 624, 627 (Ind. Ct. App. 1998) (“While the evidence . . . might reveal conduct

amounting to gross negligence or even recklessness on the part of Central Soya, it does

not establish actual knowledge on Central Soya’s part that an injury was certain to

occur” and therefore “does not establish intentional conduct on the part of Central Soya

that might otherwise remove the Agee plaintiffs’ complaint from the exclusivity

provisions of the [Worker’s Compensation] Act.”)

Here, there is no allegation or evidence that defendants intended to harm

plaintiff or had actual knowledge that an injury was certain to occur. Plaintiff argues

that she has alleged both negligent and intentional acts by the defendants, and that the

intentional acts fall outside of the scope of the WCA’s exclusive remedy provision. (DE

# 37 at 3.) Yet, plaintiff’s brief makes clear that the intentional acts she attributes to

defendants have to do with their response to her complaints regarding the odor; she has

not identified any intentional acts that caused the odor. Thus, plaintiff has not identified

any intentional acts that might take her claims outside the scope of the WCA’s

exclusivity provision. Accordingly, defendants are entitled to summary judgment on

Count I of plaintiff’s complaint.

C. Violation of Union Contract

In Count II of her complaint, plaintiff claims that defendants retaliated against

her, in violation of the school’s collective bargaining agreement, after she complained

about the odor to defendants, the Indiana Department of Occupational Safety and

Health Administration, and on Facebook. (DE # 4 at 12-13.) Defendants move for

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summary judgment on Count II, arguing that the court lacks subject matter jurisdiction

to consider this claim because plaintiff did not exhaust her administrative remedies

under the collective bargaining agreement. (DE # 31 at 7.) Specifically, defendants argue

that plaintiff failed to grieve all of her retaliation claims and failed to submit her

grievances to arbitration. (Id.) Plaintiff responds that defendants should have filed a

motion to dismiss on this issue, and argues that she did file a grievance. (DE # 37 at 4.)

First, a word about jurisdiction. While Indiana may treat exhaustion

requirements as jurisdictional, federal courts do not. See e.g. Thompson v. Cope, 900 F.3d

414, 425 (7th Cir. 2018). “A jurisdictional label under state law does not affect a federal

court’s subject-matter jurisdiction because ‘state law cannot enlarge or contract federal

jurisdiction.’” Id. (quoting Jarrard v. CDI Telecommunications, Inc., 408 F.3d 905, 909 n.3

(7th Cir. 2005)). “Once Congress has conferred subject matter jurisdiction on the federal

courts, state law cannot expand or contract that grant of authority,” though it can deny

a plaintiff a viable cause of action. Goetzke v. Ferro Corp., 280 F.3d 766, 779 (7th Cir. 2002).

Under federal law, “[a] failure to exhaust is normally considered to be an affirmative

defense,” not a jurisdictional requirement. Mosely v. Bd. of Educ. of City of Chicago, 434

F.3d 527, 533 (7th Cir. 2006).

The court finds that defendants preserved their failure to exhaust affirmative

defense in answering plaintiff’s complaint. While they framed their defense in terms of

a jurisdictional defect (a misapprehension made by both parties in briefing this issue),

the defense was adequately asserted. (DE # 15 at 32.) Thus, while plaintiff’s alleged

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failure to exhaust would not deprive this court of subject matter jurisdiction, the court

will consider whether plaintiff has a viable cause of action in Count II.

“It is well settled that if a CBA [collective bargaining agreement] establishes a

grievance and arbitration procedure for the redress of employee complaints, employees

wishing to assert claims based on a CBA first must exhaust the grievance procedure

before resorting to a judicial remedy.” McCoy v. Maytag Corp., 495 F.3d 515, 524 (7th Cir.

2007) (employer was entitled to summary judgment on plaintiff’s claim for breach of

collective bargaining agreement where plaintiff failed to utilize collective bargaining

agreement’s grievance and arbitration procedures). While there are situations in which

the court may excuse an employee’s failure to exhaust a collective bargaining

agreement’s grievance and arbitration procedures, id., plaintiff has not asserted that any

of these exceptions apply, nor does the evidence support such a finding.

School City’s collective bargaining agreement sets forth grievance and arbitration

procedures. (DE # 32-1 at 39-40.) The evidence supports a finding that plaintiff filed a

grievance related to her transfer to Central High School. Plaintiff does not assert, or

identify any evidence that would support a finding, that she fully exhausted her

administrative remedies with respect to her transfer, or that she attempted to exhaust

her administrative remedies with respect to her other retaliation claims. Accordingly,

defendants are entitled to summary judgment on Count II of plaintiff’s complaint.

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D. First Amendment

In Count III of her complaint, plaintiff alleges that defendants retaliated against

her, in violation of her right to free speech under the First Amendment by: suspending

her; ordering her to delete her Facebook post; transferring her; and failing to train her

for her new assignment. (DE # 4 at 15-16.) Defendants move for summary judgment on

this claim, arguing that plaintiff cannot establish a violation of her rights under the First

Amendment. (DE # 31 at 8.)

1. First Amendment Retaliation Claim

“It is well established that a public employee retains First Amendment rights to

free speech. As a general rule, the government cannot retaliate against its employees for

engaging in constitutionally protected speech.” Hutchins v. Clarke, 661 F.3d 947, 955 (7th

Cir. 2011) (internal citations omitted). “Whether a public employee’s speech is

constitutionally protected is a question of law, ‘even though it may . . . require[ ]

predicate factual determinations.’” Harnishfeger v. United States, 943 F.3d 1105, 1113 (7th

Cir. 2019) (quoting Gustafson v. Jones, 290 F.3d 895, 906 (7th Cir. 2002)).

“To prove a First Amendment retaliation claim, a public employee must establish

three elements: first, that she engaged in constitutionally protected speech; second, that

she suffered a deprivation likely to deter protected speech; and third, that her protected

speech was a motivating factor in the deprivation and ultimately, if the public employer

cannot show it would have inflicted the deprivation anyway, its but-for cause.” Id. at

1112–13; see also Swetlik v. Crawford, 738 F.3d 818, 822–28 (7th Cir. 2013).

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In order to establish that she engaged in constitutionally protected speech, a

plaintiff must initially pass the double threshold established by Connick v. Myers, 461

U.S. 138 (1983), and Garcetti v. Ceballos, 547 U.S. 410 (2006). Harnishfeger, 943 F.3d at

1113. “The employee must show under Garcetti that she spoke as a citizen rather than an

employee, 547 U.S. at 418, and under Connick that she spoke on a matter of public

concern rather than ‘matters only of personal interest.’ 461 U.S. at 147.” Harnishfeger, 943

F.3d at 1113.

If a plaintiff can meet these threshold standards, the court proceeds to consider

the balancing of employee and employer interests required by Pickering v. Board of

Education, 391 U.S. 563 (1968). Under the Pickering analysis, “the employee’s interest in

making the speech must outweigh the employer’s interest in ‘promoting the efficiency

of the public services it performs through its employees.’ If not, the employer’s action is

considered to be justified and does not violate the First Amendment.” Swetlik, 738 F.3d

at 827 (internal citations omitted); see also Garcetti, 547 U.S. at 418 (“The question

becomes whether the relevant government entity had an adequate justification for

treating the employee differently from any other member of the general public.”).

If plaintiff prevails under the Garcetti, Connick, and Pickering inquires, only then

can the court find that plaintiff engaged in constitutionally protected speech.

Harnishfeger, 943 F.3d at 1113.

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2. Plaintiff Spoke as a Private Citizen

In this case, defendants argue that plaintiff’s speech was not constitutionally

protected because plaintiff’s speech regarding the odor was made pursuant to her duty

as an employee to keep students safe, rather than as a private citizen. (DE # 31 at 8.) See

Garcetti, 547 U.S. at 421–22 (a public employee’s statements made pursuant to official

duties are not made as a private citizen for the purposes of the First Amendment).

“Under Garcetti, the key question is whether the employee makes the relevant

speech ‘pursuant to [his] official duties.’” Lett v. City of Chicago, 946 F.3d 398, 400 (7th

Cir. 2020) (quoting Garcetti, 547 U.S. at 421). “In other words, we ask whether the speech

‘owes its existence to a public employee’s professional responsibilities.’ If it does, then

the employee speaks in his capacity as an employee rather than a private citizen and his

speech is not protected.” Id. (quoting Garcetti, 547 U.S. at 421).

Here, plaintiff’s speech in her Facebook post did not owe its existence to

plaintiff’s duties as a ENL paraprofessional. Plaintiff’s speech took place outside of her

workplace, outside of working hours, and outside of official channels. While plaintiff’s

speech was related to her employment, her speech did not discuss the subject matter of

her work, but rather the conditions at her workplace. Defendants’ claim that plaintiff’s

speech arose from her employment duties because she has a general responsibility to

ensure student safety is far too broad, and would encompass large portions of speech

that might otherwise be protected. Furthermore, there is no evidence in the record that

suggests that alerting parents to the conditions of the school fell within the scope of

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plaintiff’s official duties. Given the circumstances in this case, the court finds that

plaintiff’s speech was not made pursuant to her official duties, but rather was made as a

private citizen, and thus may be eligible for First Amendment protection.

3. Defendants Fail to Establish Pickering Defense

Defendants next argue that plaintiff’s speech was not protected under the

Pickering analysis because plaintiff’s statements regarding the odor were false and made

with a reckless disregard for the truth, and because defendants reasonably believed that

plaintiff’s statements were false. (DE # 31 at 8-9.) Defendants specifically argue that

plaintiff’s claim in her Facebook post that multiple people had become sick from the

odor was false. (Id.)

“Under Pickering and its progeny, if an employer takes action against an

employee for speech that the employer, based on an adequate investigation, reasonably

believes to be false, the employer’s interests outweigh the speaker’s interests.” Swetlik,

738 F.3d at 825. Moreover, “[t]he Court in Pickering suggested that an employee’s

statements may fail the test and not warrant protection if they were false and made

with knowing or reckless disregard for the truth, and we have since held that ‘an

employee’s speech is not protected where it is [ ] made with a reckless disregard for the

truth[.]’” Id. at 827 (citing Pickering, 391 U.S. at 574; Brenner v. Brown, 36 F.3d 18, 20–21

(7th Cir.1994)).

Defendants bore the burden of proving their Pickering defense. “At trial, the

public employer has the burden of showing by a preponderance of the evidence that

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[the Pickering] balance weighs in its favor.” Harnishfeger, 943 F.3d at 1115 (citing

Gustafson, 290 F.3d at 909). “Requiring proof by a preponderance of the evidence

indicates that the public employer’s burden is one of persuasion, not merely

production, in the nature of an affirmative defense.” Id. “When a public employer

moves for summary judgment on the Pickering balancing defense, therefore, it must ‘lay

out the elements of the [defense], cite the facts which it believes satisf[y] these elements,

and demonstrate why the record is so one-sided as to rule out the prospect of a finding

in favor of the non-movant’ on the defense.” Id. at 1116 (internal citation omitted); see

also Gazarkiewicz v. Town of Kingsford Heights, Indiana, 359 F.3d 933, 942 (7th Cir. 2004).

In this case, defendants have not established that the Pickering balance weighs in

their favor. First, defendants have failed to establish that plaintiff lied, or acted with a

reckless disregard for the truth, when she claimed that multiple people had become sick

from the odor. The record demonstrates that plaintiff was aware as of January 30, 2017,

of several people who had experienced symptoms that they attributed to the odor. (See

e.g. DE # 32-1 at 6-7; DE # 40-1.) Thus, there remains a triable question of fact on this

issue. See Swetlik, 738 F.3d at 827 (“Whether an employee recklessly disregarded the

truth in making a statement will often present a disputed factual issue. An employer

cannot avoid liability for First Amendment retaliation simply by asserting that an

employee’s otherwise protected speech was false or was made recklessly.”).

Second, defendants have failed to identify sufficient evidence to determine that

they took action against plaintiff for her speech because, after an adequate

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investigation, defendants reasonably believed plaintiff’s speech was false. Defendants

have not identified any evidence regarding when the investigation took place or what

the scope of the investigation entailed. They also have produced no evidence that they

believed no one other than plaintiff had become ill. In other words, defendants have

failed to establish that the evidence is so one-sided as to rule out the prospect of a

finding in favor of plaintiff on their Pickering defense. Accordingly, defendants have not

established that they are entitled to summary judgment on the basis that plaintiff’s

speech was not protected under the First Amendment.

4. Deprivation Likely to Deter Protected Speech

Finally, defendants argue that, even assuming plaintiff’s speech was protected,

retaliation requires an adverse employment action, and plaintiff’s suspension with pay

and transfer in placement and position for a few months’ time does not amount to an

adverse employment action because it did not materially alter the terms and conditions

of her employment. (DE # 31 at 9.) Defendants attempt to hold plaintiff to a more

stringent standard than is required under 42 U.S.C. § 1983.

“A § 1983 retaliation claim does not require an adverse employment action

within the same meaning as other anti-discrimination statutes.” Hutchins v. Clarke, 661

F.3d 947, 956 (7th Cir. 2011); see also Spiegla v. Hull, 371 F.3d 928, 941 (7th Cir. 2004),

disapproved in later appeal on other grounds, 481 F.3d 961 (7th Cir. 2007). Rather, in the §

1983 context, the action of which the employee is complaining must be sufficiently

adverse to deter the exercise of the individual’s right to free speech. Hutchins, 661 F.3d

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at 956; Hobgood v. Illinois Gaming Bd., 731 F.3d 635, 643 (7th Cir. 2013) (“The First

Amendment requires a deprivation ‘likely’ to deter free speech, a standard considered

more lenient than the Title VII counterpart of adverse action.”).

In this case, a reasonable jury could certainly find that plaintiff’s immediate

suspension and subsequent transfer to a less desirable position, for which she claims she

was not trained, was sufficiently adverse to deter the exercise of her free speech.

Accordingly, defendants are not entitled to summary judgment on Count III of

plaintiff’s complaint.

E. State Statutory Claims

In Count IV of her complaint, plaintiff alleges that defendants violated her rights

under the Indiana False Claims and Whistleblower’s Protection Act, and the Indiana

Occupational Safety and Health Act. (DE # 4 at 16-18.) Defendants argue that they are

entitled to summary judgment on each of these claims, as well as any claim that plaintiff

may have attempted to state under the federal Occupational Safety and Health Act. (DE

# 31 at 9.) Plaintiff failed to respond to this portion of defendants’ motion, and has

therefore waived any argument she may have had in response. See Nichols v. Mich. City

Plant Planning Dep’t, 755 F.3d 594, 600 (7th Cir. 2014) (“The non-moving party waives

any arguments that were not raised in its response to the moving party’s motion for

summary judgment.”).

The Indiana False Claims and Whistleblower’s Protection Act protects an

employee who has been discriminated against by his or her employer because the

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employee (1) objected to an act or omission described in Section 2 of the Act, or (2)

initiated, testified, assisted, or participated in an investigation or action under the Act.

Ind. Code § 5-11-5.5-8. Section 2 of the Act pertains to the misuse of public funds. The

court agrees with defendants that the misuse of public funds is not at issue in this case.

Therefore, defendants are entitled to summary judgment on plaintiff’s claim under the

Indiana False Claims and Whistleblower’s Protection Act.

Defendants next argue that there is no private cause of action under either the

federal or Indiana Occupational Safety and Health Acts. (DE # 31 at 10.) The federal act

requires an employee to file a complaint with the Secretary of Labor – the party

authorized to bring an action for a violation of the federal act. 29 U.S.C. § 660(c)(2).

Similarly, the Indiana act only permits an employee to bring a cause of action through

the Commissioner for the Department of Labor. Ind. Code § 22-8-1.1-38.1; Ind. Code §

22-8-1.1-48.3 (“Nothing in this chapter shall be construed to . . . create any private right

of action.”). Accordingly, defendants are entitled to summary judgment on all of

plaintiff’s claims in Count VI of the complaint.

F. Qualified Immunity

Finally, defendants make a cursory argument that all defendants, except School

City, are entitled to qualified immunity because there is no evidence that any

constitutional violation occurred. (DE # 31 at 10.) As discussed above, there remains an

open question regarding whether plaintiff’s First Amendment rights were violated.

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Accordingly, defendants’ motion for summary judgment on the basis of qualified

immunity must be denied.

IV. CONCLUSION

For these reasons, the court GRANTS defendants’ motion to strike. (DE # 39.)

The court GRANTS IN PART and DENIES IN PART defendants’ motion for summary

judgment, on the terms identified in this opinion and order. (DE # 30.) The court

ORDERS the parties to file a joint status report regarding their willingness to engage in

a settlement conference before a Magistrate Judge by February 26, 2021. A trial date will

be set under a separate order.

SO ORDERED.

Date: February 12, 2021

s/James T. Moody

JUDGE JAMES T. MOODY

UNITED STATES DISTRICT COURT

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