Warner v. City of Terre Haute, Ind.

• Decision Date: 08 December 1998
• Docket Number: No. TH 97-024-C M/F.,TH 97-024-C M/F.
• Citation: 30 F.Supp.2d 1107
• Parties: Shelva WARNER, Plaintiff, v. CITY OF TERRE HAUTE, INDIANA, Joe Newport, individually and as its Chief of Police, and James Jenkins, individually and as Mayor of the City of Terre Haute, Defendants.
• Court: U.S. District Court — Southern District of Indiana

30 F.Supp.2d 1107

Shelva WARNER, Plaintiff, v. CITY OF TERRE HAUTE, INDIANA, Joe Newport, individually and as its Chief of Police, and James Jenkins, individually and as Mayor of the City of Terre Haute, Defendants.

No. TH 97-024-C M/F.

United States District Court, S.D. Indiana, Terre Haute Division.

December 8, 1998.

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Eric A. Frey, Frey Law Firm, Terre Haute, IN, for Plaintiff.

Scott M. Kyrouac, Wilkinson Goeller Modesitt, Wilkinson & Drummy, Terre Haute, IN, for Defendants.

ORDER ON MOTION FOR SUMMARY JUDGMENT

McKINNEY, District Judge.

This matter comes before the Court on a motion filed on January 16, 1998, by defendants the City of Terre Haute, Joe Newport, individually and as Chief of Police, and James Jenkins, individually and as Mayor of the City of Terre Haute. After several extensions of time for the plaintiff, Shelva Warner, to respond, the motion became ripe for resolution on July 22, 1998. The defendants seek judgment in their favor on all claims raised by the complaint. Count I includes claims that the defendants deprived the plaintiff of civil rights protected by the Constitution and federal laws, all in violation of 42 U.S.C. §§ 1981 and 1983. Count II alleges a violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5, based on alleged discrimination because of plaintiff's sex and harassment that created a hostile environment.

For the reasons further explained below, the Court finds the defendants' motion for summary judgment well-taken. The plaintiff has not presented sufficient evidence to create a genuine issue of any fact that is material to her claims. Consequently, the motion for summary judgment should be, and hereby is, GRANTED.

I. FACTUAL BACKGROUND

Plaintiff, Shelva Warner ("Warner"), has been employed as a police matron by the City of Terre Haute ("the City") since November 15, 1979. Warner Aff. ¶ 2, Ex. A. She continues in that position despite the alleged adverse actions taken against her by the defendants. Id. The City is a unit of government organized under the laws of the State of Indiana, with a population that places it in the category of a second-class city. See Ind.Code § 36-4-1-1. Defendant Jim Jenkins ("Jenkins") became the mayor of the City on January 1, 1996, after defeating the previous mayor in the primary election, and he continues in that position to the present. Jenkins Aff. ¶ 2. Co-defendant Joe Newport ("Newport") was sworn in as chief of police for the City in January 1996, and he continues in that position to this date. Newport Aff. ¶¶ 1,2. One of Newport's two assistant chiefs, Martin Dooley ("Dooley"), is in charge of the division in which Warner is employed. Dooley Dep. at 12.

When Warner was appointed by the Board of Public Works and Safety in 1979, it was as a member of the City's police department in the capacity of matron. As such, she was required to wear a uniform, carry a firearm and hand cuffs, obtain permission for off-duty work, and meet mandatory annual training requirements. Id. ¶¶ 4, 5. Warner has concluded from these indices that she is a member of the police department, despite the fact that state law specifically states that police matrons are not members of city police departments. Ind.Code § 36-8-3-19. For purposes of this motion the Court will assume that Warner is a member of the City's police department and will consider the City's actions in that light.

By 1996, Warner had worked for approximately fifteen years at the information desk at City Hall in Terre Haute. Her job required daily public contact in person and on the telephone, she answered questions, gave directions, provided information, escorted female prisoners to and from city court, and oversaw activities in city court. Id. ¶ 10. Ordinarily, Warner was assisted by another officer because her varied duties would sometimes take her away from the desk. Id.; Barnett Dep. at 12-14. In early 1996, shortly after a change in administration, Warner was transferred from her position at the information desk to a clerical position in the police department records room. Warner Dep. at 17; Dooley Dep. at 22. Next, her work schedule changed from daytime hours to evening hours, and she was temporarily deprived of a lunch or dinner break. Warner Dep. at 17-19, 22; Dooley Dep. at 23.

At about this same time the Indiana Legislature voted to allow police matrons to be included in police pension funds, rather than in the Public Employee Retirement Fund ("PERF") for civilian employees. Ind.Code § 36-8-8-1(3). Warner had requested that her pension be transferred from PERF to the police pension fund prior to the effective date of the new law. Hutton Dep., Ex. 4, Undated Letter; Warner Aff. ¶ 26. Although no formal action was taken on that request for approximately eighteen months, a letter from the City's attorney, William Drummy ("Drummy"), dated April 23, 1996, indicated the City was considering the request. Def's Ex. 13, Letter dated April 23, 1996. In the letter, Drummy requested guidance from Thomas Parker, the Director of the 1977 Police Officers' and Firefighters' Pension and Disability Fund ("1977 Pension Fund") at PERF. Def's Ex. 13, Letter dated April 23, 1996; Ex. 12, Memo dated October 9, 1997. Specifically he asked Parker about the eligibility of, and proper enrollment procedures for, the two matrons in connection with the 1977 Pension Fund. Id. By December of 1997, the City Council had sufficient information to vote on including matrons in the police pension fund, and a resolution was passed that month to effect the change. Plf's Ex. G, Hutton Dep., Ex. 2, Letter dated December 30, 1997. Warner concedes that she is now a member of the 1977 Pension Fund and makes her retirement contributions to that fund. Warner Dep. at 48.

Warner attributes the defendants' treatment of her — the changes in her position and work schedule, the delay in transferring her pension — to the fact that she had opposed the current mayor's election. During the 1995 mayoral primary election Warner supported the incumbent mayor, Pete Chalos ("Chalos"), in his contest against defendant Jenkins. Id. ¶ 17. She also served as a precinct committee person who worked to support Chalos and defeat Jenkins. Id. Chalos lost the primary election to Jenkins, who subsequently ran unopposed in the November general election and was elected mayor. Id. ¶¶ 7-8. In late 1995, Jenkins announced that he would appoint Dale Loudermilk, the son of former police chief Gerald Loudermilk, as assistant police chief. Loudermilk Aff. ¶ 4; Warner Aff. ¶ 9. The Loudermilk family had been active supporters of Jenkins' mayoral election. Warner Aff. ¶ 8. Warner alleges she began hearing rumors shortly after Chalos' unsuccessful primary campaign that Jenkins and others planned to retaliate against her once they came to office for her support of Chalos. Id. ¶ 8.

When Jenkins assumed the office of mayor in January 1996, he appointed defendant Joe Newport as chief of the police department. Prior to that time Newport had been an officer with supervisory duties during the Chalos administration, and Warner had always gotten along well with him. Newport Aff. ¶ 3; Warner Dep. at 20. After hearing from several sources she considered credible that Jenkins intended to fire her, Warner arranged an appointment with the newly-elected mayor to inquire about her position. Warner Dep. at 53. She told him about the rumors she had been hearing and he said that "he was going to be way too busy being mayor to worry about matrons." Warner Dep. at 53. Jenkins told her he also had heard rumors about various people he would be firing when he came to office, and he was not going to fire anybody. Id. No evidence has been presented that Jenkins fired anyone.

After Jenkins and Newport took office, Newport transferred Warner to the records room, where she had never worked before, to perform clerical work. Warner Dep. at 18; Dooley Dep. at 22, 27. It is not disputed that the police department had a labor shortage at the time. Warner Dep. at 74. Nor is there any dispute that the records department was behind in its work. However, Newport did not give Warner a specific explanation for why she was being transferred. Id. at 19. She began working in records in January, and by March of 1996 Warner's hours were changed from days, 6:30 a.m. to 2:30 p.m., to evenings, 12:00 noon to 8:00 p.m. Id. at 20. Warner had worked a daytime shift since the beginning of her employment in 1979. Id. at 21. She was not given a reason for the 1996 change in her work schedule. Id. at 22. Moreover, she was told she would not get a dinner hour during the noon to 8:00 p.m. shift, because her superiors did not want the records room closed. Id. at 22-23. The next day after Warner was assigned the noon to 8:00 p.m. shift with no dinner break, she was changed to a 1:00 to 9:00 p.m. shift that included a dinner break. Id. Warner worked this shift in the records room until approximately July 2, 1996, when she was returned to the information desk and a daytime schedule, but with no extra officer to assist her. Id. at 25.

For some reason Warner worked without a lunch break for eighteen days, during which time she complained to "anybody that would listen," and then she contacted her attorney who sent a letter to the department about the situation. Id. at 26, 28; Warner Aff. ¶ 24. Although it is not clear from the record what caused the change, after her attorney's letter was sent Warner got a lunch break of forty minutes. Warner Dep. at 28. The only other conversation Warner ever had with Jenkins occurred at about this time, in late July or August of 1996. Id. at 53. He told her she was doing a "great job" and asked her if her lunch hours had been straightened out. Id. at 53, 91. When she told him they had not, he said that he would talk to Chief Newport about it. Id. at 54....