Vukadinovich v. Board of School Trustees

• Decision Date: 23 September 1991
• Docket Number: No. S90-14 (RLM).,S90-14 (RLM).
• Parties: Brian VUKADINOVICH, Plaintiff, v. BOARD OF SCHOOL TRUSTEES OF MICHIGAN CITY AREA SCHOOLS, et al., Defendants.
• Court: U.S. District Court — Northern District of Indiana

776 F. Supp. 1325

Brian VUKADINOVICH, Plaintiff, v. BOARD OF SCHOOL TRUSTEES OF MICHIGAN CITY AREA SCHOOLS, et al., Defendants.

No. S90-14 (RLM).

United States District Court, N.D. Indiana, South Bend Division.

September 23, 1991.

Brian Vukadinovich, pro se.

Donald L. Dawson, Tom Wheeler, Indianapolis, Ind., for Bd. of School Trustees of Michigan City Area Schools.

Marsha Schatz Volk, LaPorte, Ind., David Cerven, East Chicago, Ind., Kathryn D. Schmidt, Merrillville, Ind., for all defendants.

MEMORANDUM AND ORDER

MILLER, District Judge.

This cause is before the court on the motion by defendants Board of School Trustees of the Michigan City Area Schools ("MCAS"), Clyde Zeek, Allan Whitlow, and Diane Dibkey for partial summary judgment, and on plaintiff Brian Vukadinovich's related motion to strike the argument raised in the defendants' reply brief or for leave to respond to the argument raised. In turn, the defendants move to strike Exhibits 1-5 to the plaintiff's motion to strike or respond.

In addition, all defendants move for summary judgment as to all claims, incorporating the motion for partial summary judgment. The defendants requested oral argument on the motion for summary judgment pursuant to District Rule 10. However, the court concludes that the parties' briefs and evidentiary materials have adequately apprised the court of the factual and legal issues and arguments and, therefore, declines to schedule oral argument.

For the reasons that follow, the court concludes that the defendants are entitled to judgment as a matter of law on each of Mr. Vukadinovich's constitutional claims. Upon disposition of the federal claims, Mr. Vukadinovich's pendent state law claims should be dismissed.

I. DEFENDANTS' MOTION TO STRIKE

At the outset, the court must determine precisely what evidentiary materials are before it. The defendants move to strike the five exhibits attached to Mr. Vukadinovich's motion to strike, as they are not certified or incorporated into sworn affidavits. A court generally should not rely on unsworn or unauthenticated documents in determining a summary judgment motion, Macklin v. Butler, 553 F.2d 525, 528, n. 1 (7th Cir.1977), but may do so in the absence of objection. Townsend v. Columbia Operations, 667 F.2d 844, 849 (9th Cir.1982). As Professor Wright explains:

Exhibits that have been properly made a part of an affidavit also may be considered. Indeed, Rule 56(e) requires that sworn or certified copies of all papers referred to in an affidavit must be attached to or served with that affidavit.... To be admissible, documents must be authenticated by and attached to an affidavit that meets the requirements of Rule 56(e) and the affiant must be a person through whom the exhibits could be admitted into evidence. A letter submitted for consideration under Rule 56(e) must be attached to an affidavit and authenticated by its author in the affidavit or a deposition.

As is true of other material introduced on a summary judgment motion, uncertified or otherwise inadmissible documents may be considered by the court if not challenged. The objection must be timely or it will be deemed to have been waived.

10A C. Wright, A. Miller and M. Kane, Federal Practice and Procedure § 2722 (2d ed. 1983) (footnotes omitted). See also Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc., 896 F.2d 1542, 1551 (9th Cir.1990). These authorities convince the court that the defendants' motion to strike should be granted.

II. STANDARD OF REVIEW FOR SUMMARY JUDGMENT

A party seeking summary judgment must demonstrate that no genuine issue of fact exists for trial and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Certain Underwriters of Lloyd's v. General Accident Ins. Co. of America, 909 F.2d 228, 231 (7th Cir.1990). If that showing is made and the motion's opponent would bear the burden at trial on the matter that forms the basis of the motion, the opponent must come forth with evidence to show what facts are in actual dispute. Lujan v. National Wildlife Federation, ___ U.S. ___, 110 S.Ct. 3177, 3186, 111 L.Ed.2d 695 (1990); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Sims v. Mulcahy, 902 F.2d 524, 540 (7th Cir.), cert. denied, ___ U.S. ___, 111 S.Ct. 249, 112 L.Ed.2d 207 (1990). If he fails to do so, summary judgment is proper. Fitzpatrick v. Catholic Bishop of Chicago, 916 F.2d 1254, 1256 (7th Cir.1990); Tatalovich v. City of Superior, 904 F.2d 1135, 1142 (7th Cir.1990). A genuine factual issue exists only when there is sufficient evidence for a jury to return a verdict for the motion's opponent. Harbor House Condominium Ass'n v. Massachusetts Bay Ins. Co., 915 F.2d 316, 320 (7th Cir.1990); Hines v. British Steel Corp., 907 F.2d 726, 728 (7th Cir.1990). Summary judgment should be granted if no reasonable jury could return a verdict for the motion's opponent. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Visser v. Packer Engineering Associates, Inc., 924 F.2d 655, 660 (7th Cir.1991).

The parties cannot rest on mere allegations in the pleadings, Hughes v. Joliet Correctional Center, 931 F.2d 425, 428 (7th Cir.1991); McCarthy v. Kemper Life Ins. Companies, 924 F.2d 683, 687 (7th Cir.1991), or upon conclusory allegations in affidavits. Mestayer v. Wisconsin Physicians Service Ins. Corp., 905 F.2d 1077, 1079 (7th Cir.1990). The court must construe the facts as favorably to the non-moving party as the record will permit, Brennan v. Daley, 929 F.2d 346, 348 (7th Cir.1991); Soldal v. County of Cook, 923 F.2d 1241, 1245 (7th Cir.1991), and draw any permissible inferences from the materials before it in favor of the non-moving party, Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Illinois Bell Telephone Co. v. Haines and Co., Inc., 905 F.2d 1081, 1087 (7th Cir.1990), as long as the inferences are reasonable. Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir.1991). The non-moving party must show that the disputed fact is material, or outcome-determinative, under applicable law. Johnson v. Pelker, 891 F.2d 136, 138 (7th Cir.1989).

Even on an issue of intent, summary judgment is proper if the party with the burden at trial presents no indication of the necessary motive or intent. Illinois Bell Telephone Co., 905 F.2d 1081, 1087 (7th Cir.1990); Holland v. Jefferson Nat'l Life Ins. Co., 883 F.2d 1307 (7th Cir.1989).

The court will address the defendants' motions for partial summary judgment and for summary judgment with the above standards in mind.

III. THE SUMMARY JUDGMENT MOTIONS

Two separate summary judgment motions pend. Defendants MCAS, Zeek, Whitlow, and Dibkey moved for partial summary judgment on any state law claims for defamation or slander. Not long after that, those defendants joined the other defendants in seeking summary judgment on all claims. The court will address both motions simultaneously. For reasons that follow, the court turns first to the federal constitutional claims.

A. Retaliatory Discharge

Mr. Vukadinovich alleges two constitutional violations in Count I of his second amended complaint: retaliatory discharge for the exercise of his First Amendment rights, and denial of due process during the administrative phase of his discharge. Mr. Vukadinovich claims that his 1988 discharge was in retaliation for his public criticism of MCAS Superintendent Clyde Zeek in 1986. The defendants claim that Mr. Vukadinovich's public criticism did not motivate the discharge.

The Seventh Circuit set forth the analysis of First Amendment claims of this type in another action Mr. Vukadinovich brought against a previous employer:

In cases where a public employee's First Amendment rights are at issue, the courts engage in a three-step analysis.

First, the court must determine whether the plaintiff's speech is constitutionally protected. This is a question of law.... If the plaintiff's speech is protected by the first amendment, then two issues of fact must be addressed. The first factual issue is whether the defendant's actions were motivated by the plaintiff's constitutionally protected speech.... If the plaintiff can demonstrate that his or her constitutionally protected speech was a substantial or motivating factor in the defendant's actions, the defendant must then have the opportunity to prove that it would have taken the same action in the absence of the plaintiff's exercise of his or her first amendment rights....

Vukadinovich v. Bartels, 853 F.2d 1387, 1389-90 (7th Cir.1988) (quoting Hesse v. Board of Education, 848 F.2d 748, 754 (7th Cir.1988) (Flaum, J., dissenting) (citations omitted). See also Mt. Healthy Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977).

The defendants assume, for purposes of this motion, that Mr. Vukadinovich's speech was constitutionally protected, but claim that Mr. Vukadinovich fails prongs two or three of the Seventh Circuit test, because he cannot show that his termination was motivated by the exercise of his First Amendment rights. Mr. Zeek, Mr. Hanke, and Ms. Dibkey testified in their depositions that Mr. Vukadinovich's criticisms in 1986 had nothing to do with the cancellation of Mr. Vukadinovich's contract in 1988.

Mr. Vukadinovich did not assert any link between his speech and his discharge during the administrative hearing on his termination. In Barkoo v. Melby, 901 F.2d 613 (7th Cir.1990), the plaintiff, like Mr. Vukadinovich, had at first failed to link her speech with her employment discharge.

The defendants are correct when they point out that Barkoo did not even bother to plead that speech in her initial complaint; even she seems to have recognized that it was not a major contributing factor to any disciplinary actions taken by defendants. The issue seems to have taken on greater importance because it is the only justification for Barkoo's

...