Schenke v. Daniels
| Decision Date | 15 March 2019 |
| Docket Number | Case No. 4:15-cv-75 |
| Parties | JAMES K. SCHENKE, Plaintiff, v. MITCH DANIELS, et al., Defendants. |
| Court | U.S. District Court — Northern District of Indiana |
This matter is before the court on the Motion for Summary Judgment [DE 100], and the Motion to Strike Plaintiff's Designated Evidence [DE 112] filed by the defendants, Mitch Daniels, Julie K. Griffith, Trent Klingerman, Brian Zink, and Shelley Triol, on March 16, 2018 and July 16, 2018. For the following reasons, the Motion for Summary Judgment [DE 100] is GRANTED, and the Motion to Strike Plaintiff's Designated Evidence [DE 112] is GRANTED in part and DENIED in part.
The plaintiff, James K. Schenke, has pursued two causes of action pursuant to 42 U.S.C. § 1983 against the defendants. First, he asserts that the Purdue News Service Guidelines have chilled his right to speak as a private citizen on matters of public concern in violation of the First Amendment. Second, he asserts that the defendants deprived him of his constitutionally-protected right to speak as a private citizen on matters of public concern, as guaranteed by the First and Fourteenth Amendments, by requiring prior approval and by retaliating against him when he spoke on matters of public concern.
Schenke was employed as a Broadcast Media Liaison by Purdue University's Office of News and Information. As a member of Purdue's News Service team, he was subject to the News Service Guidelines Policies and Procedures. The Guidelines included the following provisions:
(DE 100-5, Ex. E).
During the Spring and Summer of 2013, the City of West Lafayette was attempting to annex certain property along the U.S. 231 corridor. Schenke personally opposed the initial annexation plan because it included the subdivision where he lived, Wake Robin Estates. He indicated that "[i]t was quite clear in the public discourse that annexation was dead on arrival if Purdue did not allow it to proceed." (Schenke Dep., at 218:4-8). "It was my presumption that [Purdue was] on board with the annexation by the time I joined the discourse." (Schenke Dep., at 218:19-219:1).
Schenke spoke out against the annexation by writing newspaper stories, writing letters to the editor, granting interviews with reporters, and speaking at a City Council meeting. On September 9, 2013, Schenke wrote a letter to the editor of the Purdue Exponent attempting to correct certain statements made about the annexation opponents. However, he did not submit theletter to his supervisor first. At the time Schenke wrote the letter, his stance was contrary to the University's position on the annexation. Schenke also was interviewed by a local television station about the noise from U.S. 231. Schenke was advised by the defendant, Brian Zink, to conduct himself in strict accordance with the News Service Policy.
On November 4, 2013, Schenke notified Zink of his intention to speak at an upcoming West Lafayette City Council meeting about the scaled-back annexation plan. At the time of the City Council meeting, the annexation was focused on the University and did not include Schenke's neighborhood. (Zink Decl. ¶ 4). The defendants held a meeting to discuss the News Service Guidelines with Schenke because the media was expected to be present at the City Council meeting. Schenke voluntarily shared his planned remarks. He was advised of the distinction between speaking for the University and as a private citizen by the defendant, Trent Klingerman. (Klingerman Decl. ¶ 3). Additionally, the defendant, Shelley Triol, advised Schenke of the importance that he not make comments that could be misconstrued that he was speaking on behalf of Purdue. (Triol Decl. ¶ 3). Schenke spoke at the City Council meeting. He later was approached by a reporter for the Exponent. The Exponent article quoted Schenke as speaking negatively about the mayor, John Dennis.
On November 11, 2013, Schenke received a written reprimand for non-compliance with the Guidelines. He filed a grievance on November 26, 2013, and at the grievance hearing on January 8, 2014, he claimed a misapplication of the Guidelines. The defendant, Shelley Triol, rescinded the reprimand. Schenke no longer is employed by Purdue. He was terminated in 2016 following an arrest.
Schenke has argued that his media dealings throughout 2013 were not part of his official duties. Therefore, he was speaking as a private citizen on a matter of public importance. Thus,Schenke contends that the defendants burdened his free speech rights by retaliating against him for exercising his First Amendment rights when he applied for Purdue's vacant "Director of Public Information" position. The defendants denied Schenke an interview for the position. Schenke learned on September 10, 2013, a day after he sent his letter to the editor of the Exponent that he had not been selected for the position.
The defendants have moved for summary judgment on this matter. Schenke filed a response in opposition on June 26, 2018, and the defendants filed a reply on July 16, 2018. The defendants also have moved to strike portions of Schenke's designated evidence. Schenke did not file a response to the motion to strike, and the time to do so has passed.
Before addressing the defendants' motion for summary judgment, the court first must determine what evidence it may consider by addressing the defendants' motion to strike. The defendants have moved to strike evidence designated in Schenke's summary judgment appendix and further strike any reference to such materials in his response in opposition to the motion for summary judgment. Schenke did not respond to the motion to strike.
First, the defendants have moved to strike the "Declaration Under Oath of James K. Schenke" [DE 109-2] because it is unsigned. A declaration used to oppose summary judgment "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the . . . declarant is competent to testify on the matters stated." Federal Rule of Civil Procedure 56(c)(4). A motion to strike has merit where the contested declaration is unsigned and does not comply with Federal Rule of Civil Procedure 56. See Sellers v. Henman, 41 F.3d 1100, 1101 (7th Cir. 1994) (). Since Schenke failed to sign the declaration, the court strikes the Declaration Under Oath of James K. Schenke [DE 109-2].
The defendants next move to strike docket entries 109-3, 109-4, 109-5, 109-6, 109-7, 109-8, and 109-9 because they are unauthenticated, lack foundation of personal knowledge, and contain inadmissible hearsay. The article from Journal and Courier Editorial and transcripts from WLFI-TV are unauthenticated, and thus inadmissible. Accordingly, the court strikes docket entries 109-3, 109-4, 109-5, 109-6, 109-7, 109-8, and 109-9.
The defendants move to strike portions of Schenke's deposition testimony because it would not be admissible as evidence at trial. Federal Rule of Civil Procedure 56(c)(2) provides that "[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." Specifically, the defendants have moved to strike Schenke's Designation A.8 and A.9 contained in his response in opposition which states, "Zink, Triol, and Klingerman 'didn't want [Schenke] to speak at all at the City Council[.]'" (Schenke Dep., at 254:5-6). Schenke may testify to his own state of mind and what he heard someone say. However, he cannot testify to another's state of mind. The opinions or conclusions of Schenke concerning the state of mind of Zink, Triol, and Klingerman are not admissible. Therefore, the court strikes Designation A.8 and A.9.
Schenke also has moved to strike Schenke's Designation B.4 which states, "Zink specifically mentioned that the editor (of the Journal & Courier) had asked the Mayor [of West Lafayette, John Dennis ("Dennis")] to engage in a counter-point with [Schenke], . . . [a]nd rather than do that Dennis had called Vice-President Griffith to complain about [Schenke's] First Amendment activities." (Schenke Dep., at 87:14-19). The defendants assert that the above statements by the "editor" and "John Dennis" are hearsay. A party may not rely uponinadmissible hearsay in a deposition to oppose a motion for summary judgment. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). Hearsay is defined as a statement that is made outside of "the current trial or hearing" that "a party offers in evidence to prove the truth of the matter asserted in the statement." Federal Rule of Evidence 801(c). The court finds that these statements are not offered for their truth, and therefore are not considered hearsay. Accordingly, the motion to strike Designation B.4 is denied.
The defendants move to strike Schenke's Designation B.11 which states, "[t]he only reason communicated to Schenke by his superiors concerning why he did not get the POI position is that it was because of Schenke's political activity involving annexation." (Schenke Dep., at 157:22-25). The defendants have indicated that the statement lacks foundation because it does not...
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