Strong v. Del. Cnty.

• Decision Date: 30 September 2013
• Docket Number: Case No. 1:11–cv–01644–TWP–DML.
• Citation: 976 F.Supp.2d 1038
• Parties: Marwin STRONG, Plaintiff, v. DELAWARE COUNTY, Defendant.
• Court: U.S. District Court — Southern District of Indiana

976 F.Supp.2d 1038

Marwin STRONG, Plaintiff,

v.DELAWARE COUNTY, Defendant.

Case No. 1:11–cv–01644–TWP–DML.

United States District Court,

S.D. Indiana,

Indianapolis Division.

Sept. 30, 2013.

James D. Masur, II, Robert W. York & Associates, Indianapolis, IN, for Plaintiff.

Rosemary L. Borek, Stephenson Morow & Semler, Indianapolis, IN, for Defendant.

ENTRY ON MOTION FOR SUMMARY JUDGMENT

TANYA WALTON PRATT, District Judge.

This matter is before the Court on Defendant Delaware County's (“the County”) Motion for Summary Judgment against Plaintiff Marwin Strong (“Mr. Strong”). Following a demotion and then termination of his employment as building commissioner for Delaware County, Indiana, Mr. Strong brought claims against the County under the Civil Rights Act of 1964, 42 U.S.C. § 2000e–5 (“Title VII”) and 42 U.S.C. § 1981 (“§ 1981”).¹ For the reasons set forth below, the County's Motion (Dkt. 30) is GRANTED in part and DENIED in part.

I. FACTUAL BACKGROUND

The following material facts are not in dispute and are viewed in light most favorable to Mr. Strong as the non-moving party. See Luster v. Ill. Dep't of Corrs., 652 F.3d 726, 728 (7th Cir.2011). Mr. Strong, an African–American, was appointed Delaware County building commissioner on January 1, 2007. Prior to the appointment, he had been employed as a public housing manager for the Muncie Housing Authority. In that position, his primary duties were to certify resident eligibility, lease apartments to eligible persons, perform move-in and move-out inspections, and supervise maintenance workers to ensure the apartment units and buildings met housing standards and applicable building codes of the Department of Housing and Urban Development. While working as a public housing manager, Mr. Strong obtained a Public Housing Manager certificate through a written test, which covered various issues that a public housing manager would have to oversee, including maintenance of the property.

In late 2006, Mr. Strong submitted a resume and cover letter to John Brooke (“Mr. Brooke”), following Mr. Brooke's election to a seat on the Delaware County board of commissioners (the “Commissioners”). Mr. Strong's letter indicated that he was seeking a position with the county, as either a “juvenile probation officer and/or Delaware County Building Commissioner.” The letter discussed his experience and interest in mentoring youth and the objective on his resume indicated that he wished to obtain a juvenile probation officer position, but did not address any qualifications or interest in serving as the building commissioner. Ultimately, Mr. Strong was appointed building commissioner by a three-member elected board of commissioners consisting of Democrats John Brooke and Larry Bledsoe, and Republican Tom Bennington (“the Commissioners”). The building commissioner position had a one year term, therefore Mr. Strong had to be re-appointed by the Commissioners each year. Mr. Strong was reappointed building commissioner for the years 2008, 2009, and 2010. The 2010 appointment would end on December 31, 2010.

As building commissioner, Mr. Strong served as a department head who reported directly to the Commissioners. The Building Department consisted of Mr. Strong, zoning administrator Phil Taylor, and secretary Laura Murphy (“Ms. Murphy”). From the beginning, Mr. Strong and Ms. Murphy had a strained relationship because Ms. Murphy engaged in racially intolerant practices. In May 2008, after Mr. Strong made repeated complaints about her racially offensive behavior, Ms. Murphy received a three-day suspension. As a result of continual racially harassing behavior directed toward Mr. Strong, Ms. Murphy's employment was eventually terminated in March 2009. Ms. Murphy was replaced by Paula Morrison (“Ms. Morrison”). Mr. Strong also experienced some racially harassing behavior from some of the contractors whom he believes “bristled at the notion of having to seek approval from an African–American.” However, these “... repugnant discriminating vestiges of the past did not deter Mr. Strong from his tasks.” (See Dkt. 38 at 4).

As the building commissioner, Mr. Strong was responsible for overseeing the County's building inspection and permit functions. His duties included performing plumbing, rough-in, heating and cooling, framing, and certificate of occupancy inspections, issuing permits and stop work orders, and other duties. Although there was no official job description for building commissioner on file at the County's human resources office, Mr. Brooke supplied a purported job description from his files. The description summarized the building commissioner position as “performing building inspections and reviewing construction plans.”

On January 1, 2009, Todd Donati (“Mr. Donati”) and Donald Dunnuck replaced Mr. Bennington and Mr. Brooke as Commissioners. In 2010, the County was facing a budget shortfall due to decreased revenues, and the Delaware County council asked all elected officials and department heads to cut their budgets by ten percent from the previous year for the 2011 budget. The council also offered a county-wide employee buyout program. Employees who participated in the buyout program would stop working immediately, but would continue to be paid through the end of the year. A condition of participation in the buyout program was that the employee would not be eligible for rehire by the County for two years. Because of the projected budgetary shortfall, the Commissioners sought to consolidate the building and zoning departments with the Delaware–Muncie Metropolitan Planning Commission (“Planning Commission”), the planning agency for the City of Muncie and unincorporated Delaware County. The County board of commissioners does not exercise direct control over the twelve member Planning Commission board. Day-to-day operations of the Planning Commission were run by director Marta Moody (“Ms. Moody”), who was appointed by the Planning Commission but did not report to the Commissioners. Ms. Moody agreed to consolidate the County Building Department into the Planning Commission, and it was decided that existing Planning Commission staff would handle the Building Department paperwork, and one inspector would handle both the building and zoning inspections. The consolidation plan would eliminate two positions from the Building Department, one inspector and one secretary. Mr. Donati, as president of the board of commissioners, presented the Commissioners' budget at the County council budget hearings in September and October 2010. The proposed budget eliminated funding for the positions of building commissioner, zoning administrator, and building department secretary, and a combined building commissioner/zoning administrator position was added to the Planning Commission budget. The County council approved the Commissioners' 2011 budget and consolidation plan in October 2010.

Shortly thereafter, County officials sent a letter to all employees and department heads explaining the buyout option. In October 2010, Mr. Donati met with Mr. Strong, Mr. Taylor, and Ms. Morrison to discuss the consolidation plan and buyout option. Ms. Morrison, a Caucasian woman whose position was being eliminated due to the consolidation, took the buyout. Neither Mr. Taylor nor Mr. Strong were interested in the buyout. Mr. Strong explained that he did not want to take the buyout because he did not want to become ineligible for employment with the County for two years. He told Mr. Donati that he would be graduating from college in December 2010 and he planned to take the test to be certified as a probation officer, and then would apply for a probation officer position opening in January 2011. Mr. Donati did not review either Mr. Strong or Mr. Taylor's resume before deciding that Mr. Taylor should be retained. Due to his seniority and the fact that he had construction-related experience, Mr. Donati retained Mr. Taylor, a Caucasian male, for the combined building commissioner/zoning administrator position in the Planning Department. The other Commissioners agreed and Mr. Taylor assumed the title of Building Commissioner/ Zoning Administrator. In this capacity, Mr. Taylor performed both his and Mr. Strong's duties of zoning and building inspections. Mr. Taylor continued to work out of the Building Department office for the remainder of 2010 and was scheduled to transition to the Planning Commission office in 2011.

Because Mr. Strong did not want to take the buyout and become ineligible to apply for a probation officer position with the County in 2011, Mr. Donati, along with presiding Judge Marianne Vorhees (“Judge Vorhees”), arranged for Mr. Strong to work in the probation department. Judge Vorhees agreed that Mr. Strong would “help out” in her court for the remainder of 2010 due to a probation officer vacancy. Mr. Donati believed assigning Mr. Strong to the probation office for the rest of his term would be beneficial to all concerned. Mr. Strong would be able to maintain his employment with the County, gain experience learning about the probation office, and perhaps have an advantage when applying for the open probation officer position in January 2011. The Building Department and the probation office were both funded through the County's general fund, so Mr. Donati believed Mr. Strong could work for the probation office and continue to be paid from the building commissioner's line item in the salary ordinance. Mr. Donati asked County attorney Mike Quirk to discuss the proposed arrangement with Judge Vorhees, and she agreed to it. There was a meeting between Mr. Strong, Mr. Quirk, and Judge Vorhees where the details of the arrangement were discussed.

Mr. Strong worked in the probation department for about a month, and then was informed by Judge Vorhees that the other judges no longer wanted him to work in her courtroom as they were concerned the arrangement violated Indiana's ghost employment statute. On ...