Rist v. Lakeshore Dunes Apartments
| Decision Date | 28 May 2014 |
| Docket Number | 2:12-cv-507 |
| Parties | MARVIN RIST, Plaintiff, v. LAKESHORE DUNES APARTMENTS, Defendants. |
| Court | U.S. District Court — Northern District of Indiana |
This matter is before the court on the Motion for Summary Judgment [DE 41] filed by the defendant, Lakeshore Dunes Apartments, on January 10, 2014; the Motion for Extension of Time to Respond [DE 45] filed by the plaintiff, Marvin Rist, on February 12, 2014; the Motion for Plaintiff to Submit Audio Recordings [DE 46] filed on February 12, 2014; and the Motion to Amend Plaintiff's Response to Defendant's Motion for Summary Judgment [DE 50] filed on March 14, 2014.
For the following reasons, the Motion for Summary Judgment [DE 41] is GRANTED; the Motion for Extension of Time to Respond [DE 45] is DENIED AS MOOT; the Motion for Plaintiff to Submit Audio Recordings [DE 46] is DENIED; and the Motion to Amend Plaintiff's Response to Defendant's Motion for Summary Judgment [DE 50] is DENIED.
Lakeshore Dunes Apartments is a fourteen building apartment complex with six hundred and eighty units located in Gary, Indiana. It has approximately twenty full and part-time employees at any time who perform management, maintenance, leasing, janitorial, and groundsand security duties. Kinzie Realty Corporation purchased the complex in April of 2007. Andrew Brown and Charles Clarke III, both white males, are the principals of Kinzie. Stella Vanderhere, a Hispanic female, has been employed as the office manager of Lakeshore since 2001. Vanderhere oversaw all aspects of the operations of the complex, including hiring and terminating employees, assigning tasks to employees, and tenant relations.
The plaintiff, Marvin Rist, a while male, was a tenant of Lakeshore. He initially signed his lease on July 31, 2006, and renewed it on an annual basis through 2012. On December 1, 2008, Vanderhere hired Rist to work part-time up to thirty-two hours a week. Rist was hired as a janitor, and his primary responsibilities were to empty the trash chutes in each building and to pick up the trash around the buildings. Because these duties did not require thirty-two hours a week to complete, Vanderhere would assign Rist other tasks to perform. Otherwise, Rist would not have been scheduled for thirty-two hours as he desired. Most of the tasks involved performing menial labor or assisting maintenance workers. It was not unusual for employees to perform tasks that were outside the scope of their regular position in light of the limited number of employees at Lakeshore.
While Rist was employed, Lakeshore also employed three female janitors. Initially, two of the females were Hispanic and one was black. One of the Hispanic females left and was replaced by a black female. All of the janitor positions were thirty-two hour a week positions. However, one janitor, Sonia Torres, became a full-time employee when she took on the additional task of deep cleaning apartment units after the tenants vacated. This task previously was done by an outside contractor. The three female janitors had primary responsibilities that differed from Rist because they were assigned to clean specific buildings whereas Rist wasassigned to empty trash chutes and clean up the outside grounds.
On July 9, 2012, Vanderhere learned that Rist was injured while removing a mattress from a unit and was unable to work. Vanderhere understood that Rist was diagnosed with a muscle strain in his back. She never was informed that he suffered from any kind of disability. After his injury, Rist returned to work on light duty. He performed such tasks as picking up papers around the building, sweeping, and sedentary office tasks. Rist was told not to lift heavy items and stopped tending to the trash chutes. Other employees assisted in performing the duties Rist no longer could perform.
On August 31, 2012, Jonas Pierce, a Lakeshore maintenance worker, overheard a conversation between Brown and Rist. According to Pierce, Brown saw Rist standing by a building, and Rist told him he was taking a break. After Brown walked away, Rist told Pierce that "I'm going to take him to the woods and kill him." Pierce reported this to Vanderhere, and he also informed her that earlier in the month Rist had made a comment about blowing up the office. Vanderhere found the threats particularly troubling because Lakeshore recently had experienced criminal acts of violence on the property which resulted in deaths, including a triple homicide and two deaths from an arson.
Vanderhere immediately notified Brown and Ivy Posada, an agent with the human resource service used by Kinzie Realty, about the threats. Posada came out to Lakeshore and interviewed several employees. Pierce confirmed the comments, and the other employees complained that Rist was interfering with their ability to perform their duties because he constantly was talking about his injury and Workers' Compensation case. After consulting with Brown and Posada, Vanderhere terminated Rist for his threatening comments which were inviolation of the Kinzie Realty Corporation Employee Handbook. The relevant portions of the handbook prohibited "threatening bodily harm to or intimidation of another person or Company property or business" or engaging in "problematic conduct, committed on or off Kinzie premises, which is of such a nature that Andrew W. Brown or Charles F. Clarke III, in their sole discretion, determines that continued employment with Kinzie is inappropriate."
Rist received a discount toward his rent because he was an employee. Lakeshore required employees who lived on site to sign a Staff Apartment and Occupancy Agreement. Rist signed one when he renewed his lease for 2012, which gave him a monthly discount of $152.60. The Staff Occupancy Agreement stated:
It is expressly agreed by Employee that Agent has the right at any time to request Employee to vacate the assigned apartment within ten (10) days written notice without terminating the employment relationship between Employee and Agent. If the employment relationship between Employee and Agent is terminated for any reason, the lease and this addendum shall automatically terminate as of the date said employment ceases, and Employee shall then have ten (10) days from the date of termination of employment to vacate the apartment. It is hereby understood and mutually agreed, by and between Employee and Agent that said ten (10) day period for Employee to vacate the apartment is an essential and material condition of the attached lease and this addendum.
(Vanderhere Aff., Ex. B)
After he was terminated, Rist was given notice that Lakeshore was exercising its right to terminate his lease. Rist did not vacate his apartment voluntarily and became delinquent in his rent. Lakeshore initiated eviction proceedings against Rist. On December 12, 2012, a hearing was held at which Rist appeared in the Gary City Court, and the court entered an order of ejectment and possession, awarding possession of the unit to Lakeshore. On January 23, 2013, a second evidentiary hearing was held to determine the amount of money Rist owed Lakeshore. Rist appeared, and a monetary judgment was entered against Rist.
Following his termination, on October 18, 2012, Rist filed a claim with the Indiana Workers' Compensation Board for the injuries he sustained while employed with Lakeshore. The case remains pending.
Rist also filed a charge of discrimination with the Equal Employment Opportunity Comission, alleging discrimination based on race, sex, and disability. The EEOC chose not to pursue his claim, and Rist proceeded to file his complaint with this court on December 5, 2012. In his complaint, Rist stated that he is seeking compensation for wrongful termination of his employment, wrongful termination of his lease, and injury caused by his employer. Lakeshore now moves for summary judgment on all of Rist's claims.
After Lakeshore submitted its motion, Rist requested an extension of time to file his response. However, he filed a response on the original due date and later sought to amend his response. Rist also filed a motion for leave to submit audio recordings in support of his response.
Rist first asked the court to extend his time to respond to Lakeshore's motion for summary judgment until February 19, 2014. However, Rist submitted his response on February 14, 2014, as the court originally directed. For this reason, Rist's Motion for Extension of Time to Respond [DE 45] is DENIED AS MOOT.
On March 14, 2014, Rist filed a motion to amend his response to Lakeshore's motion for summary judgment. His motion states that he was told by two tenants of Lakeshore Dunes Apartments that the owner threatened them. In the next paragraph, he complains that he was terminated from two employers and that he believes that Lakeshore induced Kelly Services toget him the job at Art Van Furniture to prevent him from filing his response to their motion for summary judgment on time. Later, he complains that he was terminated from PolyCon Industries for filing his response brief and for working there with two witnesses who also were tenants of Lakeshore Dunes Apartments. Rist further includes statements made by individuals, one whose identity he desires to keep confidential, and speculation about the cause of his termination.
Rist's motion does not identify any alterations he desires to make to his original response. Rather, it appears to contain additional information that was not included in his former response. For this reason, the court will construe his motion as one for leave to file a sur-reply. Rule 7.1(a) permits parties to file an initiating brief, a response, and a reply, but it does not contemplate the filing of a sur-reply or response to the reply brief. The court generally does not permit litigants to file a surreply brief. Hall v. Forest River, Inc., 2008 WL 1774216, *n.3 (N.D. Ind. April 15, 2009); Runkle v. United States., 1995 WL 452975,...
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