Daza v. Indiana

• Decision Date: 24 October 2019
• Docket Number: No. 18-3102,18-3102
• Parties: Peter DAZA, Plaintiff-Appellant, v. State of INDIANA, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

941 F.3d 303

Peter DAZA, Plaintiff-Appellant,
v.
State of INDIANA, et al., Defendants-Appellees.

No. 18-3102

United States Court of Appeals, Seventh Circuit.

Argued September 10, 2019
Decided October 24, 2019

Richard L. Darst, Attorney, Cohen, Garelick & Glazier, Indianapolis, IN, for Plaintiff-Appellee.

Benjamin Conard Ellis, Attorney, Patricia Caress McMath, Attorney, Office of the Attorney General, Indianapolis, IN, for Defendant-Appellee State of Indiana.

Benjamin Conard Ellis, Attorney, Office of the Attorney General, Indianapolis, IN, for Defendants-Appellees Russell Fowler, Dist. Deputy Commissioner, Nina Daniel, District HR Manager, Valerie Cockrum, Tech. Services Director.

Before Wood, Chief Judge, and Kanne and Brennan, Circuit Judges.

Kanne, Circuit Judge.

After the Indiana Department of Transportation ("INDOT") fired Peter Daza from his position as a geologist, Daza filed various claims against the State of Indiana and INDOT employees, alleging that his firing was unlawful. The district court granted summary judgment to the defendants on all Daza’s claims. Daza appeals only the grant of summary judgment on his claims under 42 U.S.C. § 1983. Those claims alleged that the defendants violated his First Amendment rights by discriminating and retaliating against him for his political activities and affiliation. Because Daza has failed to show that any of his alleged protected activities or political affiliation motivated his firing, we affirm.

I. BACKGROUND

Peter Daza began working for INDOT in 1993. During his twenty-two-year tenure, he worked in INDOT’s Vincennes District both as a geologist and as a supervisor. As a geologist, Daza tested construction materials to ensure they complied with INDOT standards. As a supervisor, Daza oversaw the work of other INDOT employees.

Daza had not received any formal discipline until after a change in leadership that occurred in September 2009. At that time, a former Republican Indiana State Representative, Troy Woodruff, was appointed District Deputy Commissioner of INDOT’s Vincennes District. Almost a year later, Woodruff was promoted to Chief of Operations, and Woodruff’s friend, Russell Fowler, replaced Woodruff as Vincennes’s Deputy Commissioner.

Daza alleges the political discrimination began two years later, in 2011. INDOT employees learned that one of Daza’s supervisees,

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Terry Goff, had posted political statements on his private Facebook page. One employee asked Daza to speak with Goff about the posts, expressing concern that the posts might inhibit Goff’s ability to obtain a promotion.

Later that year, in August 2011, Goff interviewed for and was denied a promotion. Upset with this decision, Goff told the Director of Technical Services, Valerie Cockrum, that he felt disrespected by an interviewer who had texted during the interview. But Daza had his own theory about why Goff did not receive the promotion: politics. Daza voiced this concern to Cockrum five days after Goff’s complaint, claiming that Goff was consistently passed over for promotions because of his connections to the Democratic party. Cockrum responded that she would keep Daza’s complaint to herself, and she commended Daza for his honesty and loyalty.

Goff’s troubles continued throughout 2011. Daza, who completed a performance appraisal of Goff every year, gave Goff an initial overall rating of "outstanding." But because Woodruff and Fowler disagreed with this assessment, Goff’s final 2011 appraisal reflected an overall performance rating of "exceeds expectations," one level below his original "outstanding" rating.

The next year and a half passed without incident. Around February 2013, Chief of Operations Woodruff was involved in a public scandal. It was discovered that he had previously failed to disclose his financial interest in land purchased by INDOT. This scandal received public attention and was discussed by employees at INDOT’s Vincennes District. Daza complained to Cockrum about Woodruff’s misuse of political office.

One month after his complaint, Daza received his first written reprimand. The Vincennes District had been unusually busy due to construction on I-69, so Fowler required employees with an INDOT-issued cell phone to be available for calls after business hours. Daza did not take kindly to this requirement. He complained and told other employees that it was not a part of his job to work overtime. Daza’s supervisor, Brent Schmitt, heard about these complaints and approached Daza directly to ask him to answer calls after hours. Daza repeatedly told Schmitt he would not answer these calls, but ultimately agreed to comply with this request. Schmitt issued Daza a written reprimand for his insubordinate and defiant behavior.

Still, 2013 was not all bad for Daza. Even with the written reprimand, Daza received praise in his annual performance appraisal. The report complimented Daza’s willingness to help others and his ability to arrive at data-based solutions. But it also reflected Daza’s struggles to remain professional with his colleagues. Daza received an overall performance rating of "meets expectations" in 2013.

The following year, Daza again defended Goff from alleged political discrimination. In March 2014, Goff declined to help snow plow because of a shingles flare up. Schmitt alerted Daza to this situation, noting that INDOT would both request a doctor’s note and issue Goff a formal warning that could lead to disciplinary action. Daza took issue with this treatment of Goff, and he complained to Cockrum that Goff is "obviously a target and they are trying to come at him with a take-no-prisoners attitude."

The same day Daza made this complaint, Nina Daniel, a Human Resources Manager, emailed another employee about Daza. In that email, Daniel mentioned that Daza’s supervisor, Schmitt, had discussed Daza’s behavior with her: Schmitt told Daniel that Daza’s job knowledge is "one of the best in the state" but that Daza’s

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professionalism had been described as a "cancer on the department." Daniel’s email also pointed out that there was "little on [Daza’s] file discipline wise," but there was evidence of a pattern of behavior.

Tensions between Daza and Schmitt continued to run high. Later that month, in March 2014, Daza emailed Cockrum expressing discontent with Schmitt. Daza implied that Schmitt never comes to work and even suggested that Schmitt should quit. Then Daza took issue directly with Cockrum, who had recently asked Daza to mentor another INDOT geologist in a different district. Daza alleged that Cockrum gave him this task to set him up for future bad evaluations. Daza expected that his days with INDOT were numbered.

The following month, INDOT hired T.J. Brink, a Republican City Council member, as Vincennes’s Safety Director. This hiring, Daza argues, stands in stark contrast to how INDOT treated Daza. Brink had no experience in safety, and his only professional experience was as a Director of Business Development. Yet, Fowler was "anxious" to offer Brink the position. (Appellant’s Br. at 9.) Fowler just needed to determine if there was an ethical problem with hiring a current City Council member. There was not, and Brink was hired.

Over a year later, management again took issue with Daza’s behavior. On November 22, 2015, Daza’s mother published a letter to the editor with a regional newspaper, criticizing then-Indiana Governor Pence’s position on immigration. Daza discussed this letter with Cockrum and other INDOT employees. A few days later, Brink went to Cockrum with concerns about Daza’s behavior. Brink complained that Daza checked out a respirator after being told during training not to use it. Cockrum pointed out the respirator was checked out before Daza was given this instruction. Still, Brink complained about Daza’s responses to questions during the training. Cockrum met with Daza and warned him not to further antagonize Brink.

About a week later, on December 1, 2015, Daza attended the first day of a training class scheduled for multiple days that month. Daza alleges the trainer did not like him. The trainer did take issue with Daza’s behavior during the session. In her notes, the trainer stated that Daza refused to pay attention and closed his eyes several times, that he refused to participate in training activities, and that she heard Daza refer to part of the training as "f_ _ _ _ ing gay." The trainer’s supervisor emailed these notes to Human Resources and stated that she had concerns about Daza attending the second training class scheduled for December 9.

After receiving this information, Human Resources employees discussed with Fowler how to move forward with Daza. Human Resources Manager Daniel noted that Daza’s past behavior could be considered arrogant and insubordinate. She said that INDOT had previously terminated a different employee for a continued pattern of negative behavior. However, due to a lack of progressive discipline in Daza’s past, another employee recommended only a three-to-five-day suspension. In the same discussion,...