Opinion
No. 4:03-CV-00101-SEB-WGH.
February 15, 2005
ENTRY GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO STRIKE AND MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on Defendants' Motion for Summary Judgment on Plaintiff's claims of a violation of his Fourteenth Amendment rights, defamation per se, and intentional inflection of emotion distress. The case stems from the alleged wrongful termination of plaintiff Robert Badger ("Mr. Badger") by the Greater Clark County Schools, (Jeffersonville, IN) as well as former Superintendent David Pulliam ("Supt. Pulliam) (now deceased), and then-School Board Trustees Robert Fields, Robert McEwen, Michael Hennegan, Charles Gregory, Bill Halter, Twyman Patterson, and Sheryl Yoder (collectively the "School"). Defendants contend that Mr. Badger was discharged for making homosexual advances towards and offering alcohol and drugs to minor-aged students during a Halloween party at his house, and, though Mr. Badger has consistently denied these allegations, he nonetheless forewent the opportunity for a hearing to contest his termination, and to present evidence here as well to substantiate his claims of a violation of procedural and substantive due process, defamation, and intentional infliction of emotion distress. Defendants also move to strike substantial portions of Plaintiff's supporting materials on the grounds that the submissions fail to comply with the requirements of Federal Rules of Civil Procedure 12(f) and 56(e).
As explained below, we GRANT in part and DENY in part Defendants' Motion to Strike and we GRANT Defendants' Motion for Summary Judgment only with respect to Plaintiff's claim of defamation per se and DENY summary judgment on the remaining claims.
Factual Background
Our recitation of facts includes only information that is supported by affidavits and exhibits which satisfy the requirements of Federal Rule of Civil Procedure 56(e) and the Federal Rules of Evidence. See Section II, infra.
Mr. Badger was hired by the School as an Instructional Assistant in 1997 and worked as a special education aide until his termination in January 2003. The School purportedly terminated Mr. Badger based on incidents alleged to have occurred at a private Halloween party he hosted at his house in 2002. The allegations included that he provided alcohol and drugs to minors as well as sexually propositioned them.
There is no dispute that Mr. Badger and his roommate, Tommy Cole (Mr. Cole), hosted their annual, two-tiered event, the first phase of which ran from 6 p.m. until 9 p.m. as a costume party for children. After 9 p.m., the children would leave and Mr. Badger and Mr. Cole entertained only adult guests. These Halloween festivities evidently occurred over several years without incident.
The party which eventually led to Mr. Badger's termination occurred on October 26, 2002 (the "Party") and, according to Mr. Badger, it followed the same routine as his previous Halloween parties. Two sixteen-year-old boys, Jason Hatcher ("Mr. Hatcher") and Jason West ("Mr. West") (collectively the "boys" or the "two boys"), testified that they had been in attendance at the second half of the Party, and allege that Mr. Badger offered them alcohol and sexually propositioned them. The boys also claim they were not the only underage attendees who were present and drinking alcohol at Mr. Badger's party and, in addition, while they were at the Party, they witnessed same-sex couples "being intimate."
Mr. Badger disputes the teenagers' account of events, contending that on the night of October 26, 2002, the two boys arrived at the adult party uninvited, carrying alcohol with them and, as a result, Mr. Badger and Mr. Cole each asked the boys several times to leave the Party. Mr. Badger asserts that at no time did he ever discuss his sexuality or proposition the two boys. Mr. Badger concedes that there was beer at the adult party but he denies there was any liquor or illegal drugs or that anyone offered the two minors alcohol. At least three witnesses who were present at the Party confirm Mr. Badger's version of events and Plaintiff has identified several other witnesses whom he maintains can further validate his account.
Ronette Smith, Daniel Koch, and William T. Keeler all filed affidavits with the Court supporting Mr. Badger's account of events. The additional potential witnesses who reportedly confirm Mr. Badger's story are Shelly Diehl, David Stewart, John Stratton, Mr. Cole, and Mr. Cole's half-brother.
The two boys' account apparently made its way to School administrators and on Wednesday, October, 30, 2002, Superintendant Pulliam and the School's general counsel, Sandra W. Lewis ("Ms. Lewis"), told Mr. Badger that they had learned there had been drugs and alcohol at his party. Supt. Pulliam and Ms. Lewis asked Mr. Badger to submit to a drug test that day, which he did and which he passed.
Defendants have presented no admissible evidence linking Supt. Pulliam's and Ms. Lewis's alleged knowledge of events at the Party to the boys' allegations.
The following week Mr. Badger again met with Supt. Pulliam and Ms. Lewis who told him that two students had been at the Party and claimed Mr. Badger gave them alcohol and drugs. Mr. Badger assured Supt. Pulliam and Ms. Lewis that the only thing he supplied at the party was food and that he did not supply alcohol to anyone. Mr. Badger recounted to Supt. Pulliam and Ms. Lewis that the boys had "crashed" his adult Halloween party and were carrying alcohol with them when they arrived. Mr. Badger was informed by Supt. Pulliam and Ms. Lewis that they would investigate the matter.
Defendants contend this meeting took place on November 12, 2002, but have presented no admissible evidence to support this contention. Regardless, the precise date on which this meeting occurred is not material to our decision.
Approximately one week later, Mr. Badger again met with Supt. Pulliam and Ms. Lewis, and a union representative, Carla Wells ("Ms. Wells"). This turned out to be their final meeting with Mr. Badger. Mr. Badger testified that Ms. Lewis and Supt. Pulliam told him that they had discovered he did not furnish liquor to the teenagers, but that he had engaged in improper conduct with the minors. Mr. Badger claims Supt. Pulliam and Ms. Lewis initially would not disclose what the allegedly inappropriate conduct was; however, later Ms. Lewis told him that the teens had accused him of sexually propositioning them, which charge Mr. Badger denied. Supt. Pulliam suspended Mr. Badger without pay, telling him that thereafter he was not allowed on school grounds. Though union representative, Carla Wells ("Ms. Wells"), was present with Mr. Badger at this meeting, Mr. Badger claims she did nothing to help him and did not actually represent him.
Defendants assert that this meeting took place on November 26, 2002, but they have presented no admissible evidence to support this assertion. Regardless, again, the date on which this meeting occurred is not material to our decision.
Mr. Badger's affidavit does not disclose from what sources Supt. Pulliam and Ms. Lewis allegedly obtained this knowledge.See Aff. of Robert Badger at ¶ 16. For their part, the School has presented no admissible evidence indicating whether an investigation was conducted or, if so, what the investigation uncovered.
In addition to Ms. Wells not assisting him at the meeting, Mr. Badger claims he tried, to no avail, to contact Ms. Wells at least twelve times before this meeting to discuss these allegations. Mr. Badger also admits that he had not paid union dues since the 1999-2000 academic year. The actions of Ms. Wells may have constituted a breach of the duty of fair representation under the Labor Management Relations Act; however, neither party raised this issue to the Court.
Mr. Badger did not request a formal hearing before the School regarding these charges nor did he file a grievance relating to his suspension or termination. Mr. Badger asserts that he was never informed by anyone at the School, or Ms. Lewis, or Ms. Wells, that he was entitled to request a hearing (or file a grievance). Moreover, Mr. Badger claims he would have requested a hearing if he had been given the opportunity because there were several adult witnesses at the Party who would have confirmed his version of events.
Defendants argue that as an Instructional Assistant, Mr. Badger was part of a union which had a Collective Bargaining Agreement ("CBA") that gave him certain due process rights. Defendants principally claim that the CBA provides a procedure whereby an employee, once advised of the Superintendent's recommendation that he be terminated, can file a written grievance to the Board of School Trustees, which will prompt a hearing to be set on the matter. Moreover, Defendants note that the CBA allows the employee to appeal the findings of the hearing to the School Board, or that the employee may independently address the School Board. Unfortunately, Defendants have presented no evidence that Mr. Badger was ever presented with a copy of the CBA, was a member of the union at the time of these events, or otherwise knew of the CBA's provisions.
On January 14, 2003, the School Board held a regularly scheduled public meeting at which it voted on the "personnel report" submitted by Supt. Pulliam that included the recommendation that Mr. Badger's employment be terminated. Pursuant to established practice, the names of employees, including Mr. Badger's, were only reflected in the meeting minutes, but no other information about the employees was voiced publicly. William Halter ("Mr. Hartler"), a member of the School Board, testified that during the School Board meeting, Supt. Pulliam did not openly communicate the details of his investigation regarding Mr. Badger to the School Board or to the public, or make any statements regarding Mr. Badger's job performance, behavior, or actions that had formed the basis for the decision to terminate his employment. The School Board ultimately approved Supt. Pulliam's personnel recommendations and Mr. Badger's employment with the School was terminated. Mr. Badger contends he did not attend this meeting because he had been told, both verbally and in writing, that he was not allowed on School property.
The decision to not publically disclose the factual basis for a personnel decision is consistent with Indiana statutory law which allows such matters to be discussed in private "executive sessions." See IC 5-14-1.5-6.1(b)(6). We note, however, that Mr. Halter gives no indication that an executive session was held to discuss Mr. Badger's termination.
Mr. Badger also contends that he asked Ms. Wells to attend in his place, but she refused.
Following Mr. Badger's termination, there was at least one unemployment compensation hearing at which the School presented the accusations raised by Messrs. Hatcher and West, as the basis on which to deny Mr. Badger unemployment benefits, but the School refused to allow the boys to be interrogated. Subsequent to the unemployment hearing(s), Mr. Badger brought this suit against the School on May 21, 2003, alleging a violation of his Fourteenth Amendment due process rights, defamation per se, and intentional infliction of emotional distress and seeking compensatory and punitive damages related to his termination, which claims we address below.
Legal Analysis
I. Summary Judgment Standard
On a motion for summary judgment, the burden rests on the moving party, Defendants in this case, to demonstrate "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). After the moving party demonstrates the absence of a genuine issue for trial, the responsibility shifts to the non-movant to "go beyond the pleadings" and point to evidence of a genuine factual dispute precluding summary judgment. Id. at 322-23. "If the non-movant does not come forward with evidence that would reasonably permit the finder of fact to find in her favor on a material question, then the court must enter summary judgment against her." Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994), (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); Celotex, 477 U.S. at 322-24; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-52 (1986)).
Summary judgment is not a substitute for a trial on the merits, nor is it a vehicle for resolving factual disputes. Waldridge, 24 F.3d at 290. Therefore, in considering a motion for summary judgment, we draw all reasonable inferences in favor of the non-movant. Venters v. City of Delphi, 123 F.3d 956, 962 (7th Cir. 1997). If genuine doubts remain and a reasonable fact-finder could find for the party opposing the motion, summary judgment is inappropriate. See Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992); Wolf v. City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989). But if it is clear that a plaintiff will be unable to satisfy the legal requirements necessary to establish his or her case, summary judgment is not only appropriate, but mandated. See Celotex, 477 U.S. at 322; Waldridge, 24 F.3d at 920. A plaintiff's self-serving statements, unsupported by specific concrete facts reflected in the record, cannot preclude summary judgment.Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir. 2001);Slowiak v. Land O'Lakes, Inc., 987 F.2d 1293, 1295 (7th Cir. 1993).
II. Motion to Strike
Before we address the substantive issues raised in Defendants' Motion for Summary Judgment, we must resolve certain evidentiary issues. The majority of the submissions to the Court by both sides do not comport with the requirements of Federal Rule of Civil Procedure 56(e). Under Rule 56(e), "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Fed.R.Civ.P. 56(e). "On a motion for summary judgment, a court must not consider those parts of an affidavit that are insufficient under Rule 56(e)." Adusumilli v. City of Chicago, 164 F.3d 353, 359 (7th Cir. 1998) (emphasis added); Friedel v. City of Madison, 832 F.2d 965, 970 (7th Cir. 1987) (directing that "[t]o the extent that affidavits are insufficient under Rule 56(e), they must not be considered on summary judgment"). Trial counsel are to bear in mind that "the requirements of Rule 56(e) are set out in mandatory terms and the failure to comply with those requirements makes the proposed evidence inadmissible during the consideration of the summary judgment motion." Friedel, 832 F.2d at 970.
Defendants, pursuant to Rule 12(f), and Rule 56(e) of the Federal Rules of Civil Procedure, as well as Local Rule 56.1, have moved to strike the following from Plaintiff's submissions: Ex. A; Ex. B; Paragraph 8 and the letter attached to Ronette Smith's affidavit; Paragraphs 14, 18, and 19 of Mr. Badger's affidavit; Ex. E; Paragraphs 8 and 10 of Daniel Koch's affidavit; Paragraph 8 of William T. Keeler, Jr.'s affidavit; Ex. H; Ex. I; Ex. J; and Ex. K. Plaintiff essentially concedes the evidentiary deficiencies of his submissions and instead argues that we should reopen discovery pursuant to Rule 56(f) to allow him time to conduct proper discovery, which we decline to do.
Defendants also moved to strike "certain scandalous, impertinent, and immaterial matter contained in the Plaintiff's Memorandum as set forth herein." Defs.' Motion to Strike at 1. Because rhetorical embellishments are neither evidence nor binding on this court, they are immaterial to our decision making and therefore we decline to strike them.
The only exhibit that Plaintiff specifically argues is admissible is Ex. J as a party-opponent's own statement, pursuant to F.R.E. § 801(d)(2). However, Plaintiff's argument ignores the obvious deficiency in that exhibit, namely, that it is not authenticated or sworn to by the Plaintiff.
Plaintiff argues that exhibits A, B, E, H, I, and K "are clearly admissible and can readily be authenticated during key depositions which have yet to be conducted in this matter." Pl.'s Am. Resp. to Defs.' Mot. to Strike at 2. Plaintiff's current counsel had been representing Plaintiff for over three months by the time this belated plea was made and at no time did Plaintiff's counsel ever request that the Court reopen discovery. Moreover, a month prior to Plaintiff's Rule 56(f) request, Plaintiff's counsel filed a fully-briefed Response to Defendants' Motion for Summary Judgment opposing summary judgment on the merits. It was only after Defendants moved to strike that Plaintiff's counsel mentioned a need for additional discovery.
The procedural missteps by Plaintiff's counsel extend deeper than merely failing to move to reopen discovery. Plaintiff failed to authenticate several of the exhibits to which Defendants have objected. For example, Ex. E, if accurate, could have been authenticated in Daniel Koch's original affidavit, but was not. Plaintiff's counsel also could have moved the Court to allow the filing of a supplemental affidavit from Daniel Koch to authenticate Ex. E, but once again, counsel did not. In addition, Ex. H, Ex. I, Ex. J, and the letter attached to Ex. C could all have been authenticated, either in the original affidavits submitted by Plaintiff or through the filing of supplemental affidavits. The failure to authenticate these exhibits cannot be attributed to an inability to conduct proper discovery. We thus face the repeated failures by Plaintiff's counsel, both past and present, to conduct reasonable discovery and submit admissible evidence, and we rule accordingly.
In light of these failures, Plaintiff's untimely request to conduct depositions impresses us more as a statement of regret than as a proper procedural request. Plaintiff has not directed us to any case where, pursuant to Rule 56(f), discovery wasreopened after the timely filing of a motion for summary judgment. For these reasons, we decline to re-open and extend the discovery period in this case and shall disregard the inadequately authenticated submissions.
After examining Plaintiff's submissions, we conclude that Exhibits A, B, E, H, I, J, and the letter attached to C are all unauthenticated submissions and therefore must be stricken. In addition, we strike Paragraphs 14, 18, 19, of Mr. Badger's affidavit and Paragraph 10 of Daniel Koch's affidavit insofar as they contain inadmissible hearsay statements. However, we admit Paragraphs 8 of each of the affidavits of Ronette Smith, Daniel Koch, and William T. Keeler because the third-party statements set out there are not offered to prove the truth of the matters asserted and, therefore, do not constitute hearsay. See F.R.E. § 801(c). Although we do not admit Exhibit K into evidence, we shall consider it as part of the argument presented in Plaintiff's brief in opposition to summary judgment.
The only portion of ¶ 14 that we strike regards the statement by Mr. Cole to the two boys that they did not belong at the Halloween party.
The only portion of ¶ 18 that we strike concerns Ms. Wells' statement that Mr. Badger was not a union member.
The only portions of ¶ 19 that we strike concern statements by unnamed third parties about union representation and the statement by Ms. Wells about suing the School.
Even if these paragraphs contain hearsay, the statements would be admissible at trial pursuant to F.R.E. § 801(d)(1). Accordingly, there is no prejudice to Defendants by allowing the statements into evidence.
Exhibit K is a table of disputed material facts prepared by Plaintiff's counsel. This exhibit serves the same purpose as the section in a brief describing the factual issues in dispute which, in fact, is how Plaintiff's brief references the exhibit.See Pl.'s Brief in Opp'n. to Summ. J. at 9 n. 2.
After culling Plaintiff's submissions, we examine next the evidence submitted by Defendants under the same standards mandated by Rule 56(e), and in doing so, discover, ironically, that Defendants' submissions suffer from similar deficiencies. The principle deficiencies in Defendants' submissions arise in the affidavit of the School's general counsel, Ms. Lewis, which is the primary evidence relied upon by Defendants to support their Motion for Summary Judgment. Ms. Lewis's affidavit, along with the first five exhibits attached to it, runs afoul of Rule 56(e) in at least two ways. First, the affidavit incorporates events and statements made by and to third parties, without any statement substantiating Ms. Lewis's personal knowledge of the meetings, conversations, investigation, notes, and letter she describes in Paragraphs 2-7 and attempts to authenticate in Exhibits A-E. We refuse to speculate as to the authenticity of these matters. See Palmer v. Marion County, 327 F.3d 588, 595 (7th Cir. 2003) (declining in similar circumstances to speculate on an affiant's basis for personal knowledge). Second, in addition to the failure to demonstrate personal knowledge, Paragraphs 2-7 and Exhibits A-E of Ms. Lewis's affidavit are rife with inadmissible hearsay which is clearly excludable under the Federal Rules of Evidence. Accordingly, pursuant to Federal Rule of Civil Procedure 56(e), we strike Paragraphs 2-7 of Ms. Lewis's affidavit, as well as Defense Exhibits A-E. In addition, we strike Paragraphs 9 and 10 from the affidavits of Messrs. Hatcher and West insofar as they concern hearsay statements from other attendees at Mr. Badger's Party.
Although Plaintiff did not raise any evidentiary objections, the requirements of Federal Rule of Civil Procedure 56(e) apply equally to affidavits both supporting and opposing summary judgment. Moreover, as we previously mentioned, the Seventh Circuit has mandated that "[o]n a motion for summary judgment, a court must not consider those parts of an affidavit that are insufficient under Rule 56(e)." (emphasis supplied)Adusumilli, 164 F.3d at 359. We view our obligation to make this determination to be independent of counsels'.
The paragraphs of Ms. Lewis's affidavit describe the following alleged events: discussions between Ms. Luna, a school counselor, and Messrs. Hatcher and West; confrontation between Supt. Pulliam and Messrs. Badger and Cole; meetings involving Supt. Pulliam, Mr. Badger, and Ms. Wells; interviews conducted with Mr. Badger's neighbors, Ms. Smith and Ms. Diehl; and a letter sent by Supt. Pulliam to Mr. Badger.
Inexplicably, Ms. Lewis, herself, attempts to authenticate the following exhibits: (A) notes taken by Ms. Luna during her conversations with Messrs. Hatcher and West at which Ms. Lewis did not testify to being present.; (B) and (E) notes taken at meetings at which Ms. Lewis did not testify to being present; (C) notes from interviews with Mr. Badger's neighbors that Ms. Lewis did not testify to making; and (D) a letter purportedly written by Supt. Pulliam which Ms. Lewis did not testify to writing, sending or receiving.
We are willing to make the assumption that, as general counsel, Ms. Lewis was familiar with the collective bargaining agreement between the School and its employees, as described in Paragraph 8 of her affidavit and attached as Exhibit F. Our leniency in this regard, however, is strongly influenced by the fact that the CBA has little or no impact on our substantive decisions in this case and thus causes no prejudice to Plaintiff by its admission.
The most glaring example is Paragraph 2 of Ms. Lewis's affidavit which describes conversations between Ms. Luna, a school counselor, and Messrs. Hatcher and West which included Ms. Luna's descriptions of the two boys' recollections of comments allegedly made by Mr. Badger to the boys. By our count, there are at least three levels of hearsay contained in this paragraph, two of which do not fall within any exception to that rule which would permit admissibility.
We also note that almost none of the events described in Ms. Lewis's affidavit are corroborated by other witnesses. There were no affidavits from Ms. Luna, Supt. Pulliam, Mr. Cole, Ms. Wells, and Ms. Diehl. Mr. Hatcher, Mr. West, and Ms. Smith did provide affidavits; however, they fail to mention the events described by Ms. Lewis in her affidavit. Finally, Mr. Badger's affidavit corroborates in general terms some of the events described in Paragraphs 3, 4, and 7 of Ms. Lewis's affidavit, but his descriptions of events are substantially different from the ones provided by Ms. Lewis. Accordingly, we are unable to independently verify the accuracy of these events described by Ms. Lewis.
The two paragraphs, which between the two affidavits differ only in one word (the last name of the respective non-affiant), concern alleged statements by third-parties about the presence of drugs at the Party.
III. Violation of Fourteenth Amendment Rights.
A. Procedural Due Process.
There is no dispute that Mr. Badger's due process rights inhered to his employment termination by the School. Defendants assert that Mr. Badger was "accorded all process to which he was due" and suggest that the combination of the three meetings between Mr. Badger and School administrators, the procedural rights accorded in the CBA, and the School Board public meeting provided Mr. Badger all the due process protection required by the Constitution. Defs.' Reply Brief at 2-7. Mr. Badger counters that he never was informed that he had the right to request a termination hearing or to speak to the School Board before the decision was made on his termination.
Defendants erroneously claim there were four meetings.
The Supreme Court has explained that the essence of due process of law "is the opportunity to be heard, a right that has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to . . . contest."Goss v. Lopez, 419 U.S. 565, 579 (1975) (internal quotations omitted). Especially when government action places "a person's good name, reputation, honor, or integrity . . . at stake . . . notice and an opportunity to be heard are essential." Board of Regents of State Colleges v. Roth, 408 U.S. 564, 573 (1972) (internal quotations and string cite omitted). In Mr. Badger's case, due process accorded him an opportunity to refute the charges before School officials. Id. Due Process does not require necessarily that a hearing take place in every case; instead, "[t]he availability of recourse to a constitutionally sufficient administrative procedure satisfies due process requirements if the complainant merely declines or fails to take advantage of the administrative procedure." Dusanek v. Hannon, 677 F.2d 538, 542-43 (7th Cir. 1982) (citations omitted). The defense of available administrative remedies embodies "the logical proposition that a state cannot be held to have violated due process requirements when it has made procedural protection available and the plaintiff has simply refused to avail himself of them. Because the procedural protections existed, the state cannot be accused of withholding them." Id.
The admissible facts in this case, as garnered in the context of this motion, clearly indicate that Mr. Badger was not afforded his Fourteenth Amendment due process right, in at least three respects. First, the meetings between Mr. Badger and School administrators did not satisfy the requirements of the Fourteenth Amendment, especially in light of the fact that there is no evidence that the School ever conducted an investigation into the allegations against Mr. Badger. Second, there is no evidence that Mr. Badger was ever made aware of the administrative procedures available to him; in fact, the uncontroverted evidence indicates that Mr. Badger did not know that he could have requested a formal hearing. Third, Mr. Badger's unchallenged testimony is that, after his suspension, having been told not to enter School property, he reasonably believed that he could not attend the School Board meeting which occurred on School premises. Accordingly, because we cannot conclude as a matter of law that the School afforded Mr. Badger due process of law in conducting its termination procedures, Defendants' Motion for Summary Judgment is denied on this count.
Mr. Badger was not given notice before each meeting of what charges would be leveled against him (the charges appear to have differed at each meeting) and he was never presented with the evidence against him, nor permitted to cross-examine the two boys, nor allowed to present witnesses and evidence in his defense. Moreover, there is no evidence that Mr. Badger was given a chance to respond to the allegations of sexual impropriety at the third meeting (the only meeting when such allegations were raised), which allegations appear to have formed a central part of the Defendants' justification for termination. For these reasons, the three meetings between Mr. Badger and School administrators fell far short of the requirements of due process of law.
There is no evidence Mr. Badger ever received a copy of the CBA or knew of his rights under it, and we are aware of no case law (Defendants cite none) supporting the contention that a procedural right of which an employee has no knowledge can somehow satisfy the requirements of due process. Defendants argue that Mr. Badger must have been aware of his rights under the CBA because there was a union representative present at the final meeting. Assuming arguendo that this contention has merit, a factual dispute results which precludes summary judgment.
Defendants misleadingly argue that because Mr. Badger entered school property to attend the meetings with the School administrators, he must have known he could enter school property to attend the School Board meeting. However, Defendants ignore the fact that these meetings with administrators occurred before Mr. Badger was suspended and told not to enter School property thereafter. Defendants also place great stock in the fact that Ms. Wells, a representative of the union, attended the final meeting and that presumably she knew what Mr. Badger's procedural rights were under the CBA. As Mr. Badger has testified that Ms. Wells did not represent him, we decline to attribute Ms. Wells' knowledge to Mr. Badger.
B. Substantive Due Process.
We are unable to reach a conclusive determination as to whether or not Mr. Badger's substantive due process claim survives summary judgment, due to the poor development of the record by the parties and their inability to argue the merits of this claim under applicable standards of law. Mr. Badger's substantive due process claim, as laid out in the Complaint, alleges that he "has suffered tangible loss of other employment opportunities as a result of the public disclosure" of "false and misleading statements about [him]." Compl. ¶¶ 22, 24; see also ¶ 21. These facts, if true, would clearly state a viable cause of action.
As we read the Complaint, the right Mr. Badger attempts to vindicate, in the oft-repeated words of the Seventh Circuit, is that "state employees have a liberty interest in not being discharged from their employment while being defamed such that they cannot get other government employment." Strasburger v. Board of Educ., Hardin County Community Unit School Dist. No. 1, 143 F.3d 351, 355 (7th Cir. 1998) (citing Olivieri v. Rodriguez, 122 F.3d 406, 408 (7th Cir. 1997), cert. denied, 522 U.S. 1110 (1998); Lashbrook v. Oerkfitz, 65 F.3d 1339, 1349 (7th Cir. 1995); Wallace v. Tilley, 41 F.3d 296, 299 (7th Cir. 1994); McMath v. City of Gary, 976 F.2d 1026, 1031-32 (7th Cir. 1992); Johnson v. Martin, 943 F.2d 15, 16 (7th Cir. 1991);Ratliff v. City of Milwaukee, 795 F.2d 612, 625 (7th Cir. 1986)). To prevail on this liberty interest, Mr. Badger must show that "`(1) he was stigmatized by the defendant's conduct, (2) the stigmatizing information was publicly disclosed, and (3) he suffered a tangible loss of other employment opportunities as a result of public disclosure.'" Id. (quoting Johnson, 943 F.2d at 16).
Both parties have completely ignored in their briefing this significant line of Seventh Circuit case law according to which Mr. Badger's claim in the Complaint seems clearly to have been modeled. From the facts in the record, we reasonably could infer that Defendants' conduct stigmatized Mr. Badger, which would satisfy the first element. However, definitive evidence concerning the second and third elements is entirely lacking. Mr. Badger's affidavit states that the actions of Defendants have cost him his career; however, we have no evidence indicating what that means in specific terms — whether Mr. Badger has attempted to secure and been unable to obtain other employment at schools and, if he was unsuccessful, what role the allegations of sexual impropriety played in such failures. Based on the paucity of this record, we cannot reach a determination as a matter of law with respect to Mr. Badger's substantive due process claim. Defendants' Motion for Summary Judgment is therefore denied on this count.
Defendants initially present the Court with the case ofFrye v. The Town of Akron, 759 F.Supp. 1320, 1323 (N.D. Ind. 1991) (involving a high-speed chase and accident between a police car and a motorcycle). Inexplicably, Plaintiff responds by arguing the merits of his claim under the standards presented inFrye. In their Reply Brief, Defendants compound the confusion by submitting Doe v. City of Lafayette, 377 F.3d 757 (7th Cir. 2004) (concerning restrictions against entering city parks placed on a repeat sexual offender) and advancing an argument comparing Mr. Badger's claim to a Title VII action with its requirements for presenting a prima facie case.
We take judicial notice of the stigmatizing nature of allegations that an individual has sexually propositioned minors, especially minors of the same sex, and/or provided them with alcoholic beverages, and most especially that these events occurred in the context of school employment.
For example, it would have been helpful for the Court to know if the School had disclosed the charges of sexual impropriety to Mr. Badger's potential employers, if any, when requests for references were made.
IV. Defamation per se.
Mr. Badger next alleges that the School published false and misleading statements about him to third-parties, principally at a public School Board meeting on January 14, 2003, and at a subsequent unemployment compensation hearing. Defendants argue that Mr. Badger has not presented any evidence of publication and, therefore, his defamation claims fail as a matter of law or, alternatively, the defamation claim against the School is barred by the qualified privilege protecting an employer's discussions regarding the conduct of its employee.
Under Indiana law, defamation is "that which tends to injure reputation or to diminish esteem, respect, good will, or confidence in the plaintiff, or to excite derogatory feelings or opinions about the plaintiff." Lovings v. Thomas, 805 N.E.2d 442, 447 (Ind.Ct.App. 2004) (quoting Ratcliff v. Barnes, 750 N.E. 2d 433, 436 (Ind. Ct. App 2001)). "[I]n its simplest terms, a defamatory statement is one that harms an individual's reputation in the eyes of the community. Northern Indiana Public Service Company v. Dabagia, 721 N.E.2d 294, 306 (Ind.Ct.App. 1999) (Robb, J., concurring). To establish a prima facie case of defamation the following elements must be proved: (1) communication with defamatory imputation; (2) malice; (3) publication; and (4) damages. Lovings, 805 N.E.2d at 447. A communication is considered defamatory per se if it imputes: "(1) criminal conduct; (2) a loathsome disease; (3) misconduct in a person's trade, profession, office, or occupation; or (4) sexual misconduct," and damages are presumed if the communication is defamatory per se even without proof of actual harm to the plaintiff's reputation. Id. Whether a communication is defamatory is generally a question of law for the court. Id. Publication, the primary requirement challenged by Defendants, requires communication to a third person or persons. Schrader v. Eli Lilly and Co., 639 N.E.2d 258, 261 (Ind. 1994).
We conclude that Mr. Badger's claim of defamation per se fails as a matter of law for the following three reasons: (1) Mr. Badger has not presented a prima facie case of defamation per se with regards to the January 14, 2003 School Board meeting, (2) assuming Defendants made statements at the School Board meeting, they would be protected by qualified privilege, and (3) Defendants' statements at the unemployment hearing were protected by absolute privilege. We discuss each of these reasons below.
A. January 14, 2003, School Board Meeting
Mr. Badger contends that defamatory statements were made by the School during its public school board meeting on January 14, 2003. He states that he was portrayed as a sexual predator/deviant to the school community in general. However, he has presented no evidence of the content of those statements or proof that such statements were ever made. The major deficiency in Mr. Badger's claim is that he was not present at the school board meeting and thus lacks first hand knowledge of what actually was said at that meeting. Moreover, Mr. Badger has not submitted affidavits from any individuals who were actually present at the meeting. The School, on the other hand, has presented an affidavit from a School Board member which represents that Mr. Badger's situation was never substantively discussed at the January 14, 2003, meeting. The School contends that the only communication regarding Mr. Badger during the meeting occurred when Supt. Pulliam presented a personnel report listing several personnel changes, including resignations, reassignments, transfers, and terminations, in which list Mr. Badger's name appeared. Finally, the minutes from the meeting only state, with regards to Mr. Badger: "Termination: Robert Badger." (See generally the affidavit of William Halter and attachment.)
Without more, there is little on which to base Mr. Badger's claim of defamation. Defeating a motion for summary judgment requires something beyond the mere assertion that defamatory statements may have been made or that injuries from defamatory conduct occurred. See Kelley v. Vigo County School Corp., 806 N.E.2d 824, 832 (Ind.Ct.App. 2004).
B. Qualified Privilege.
Assuming arguendo that the School did make defamatory statements, it maintains that any statements that may have been made were protected by a qualified privilege. The Indiana Supreme Court has held:
The privilege applies to communications made in good faith on any subject matter in which the party making the communication has an interest or in reference to which he has a duty, either public or private, either legal, moral, or social, if made to a person having a corresponding interest or duty.Schrader, 639 N.E.2d at 262. Intracompany communications regarding the fitness of an employee are protected by a qualified privilege to accommodate the important role of free and open intracompany communications and legitimate human resource management needs. Id. "Absent a factual dispute, whether a statement is protected by a qualified privilege is a question of law." Id.
Certainly, a school board has an interest and a duty to provide and maintain qualified personnel within the school corporation; thus, communications between and among board members relating to school personnel is protected by the qualified privilege unless that privilege has been forfeited. A protected statement may lose its qualified privileged character upon a showing that: (1) the communicator was primarily motivated by ill will in making the statement; (2) there was excessive publication of the defamatory statements; or (3) the statement was made without belief or grounds for belief in its truth. Id. Once a qualified privilege is established, the plaintiff has the burden of overcoming that privilege by showing that it has been abused. Id.
Assuming the alleged defamatory statements were made here, Mr. Badger has presented no evidence that the School was primarily motivated by ill will, that there was excessive publication, or that the statements were made without belief or grounds for belief in their truth. Accordingly, we find that, even if statements were made at the School Board meeting, they would have been protected by the qualified privilege.
C. Unemployment Hearing
Mr. Badger finally contends that defamatory statements were made during an unemployment compensation hearing before the Indiana Department of Workforce Development; however, he presents no admissible evidence regarding the content of those statements.
Indiana affords an absolute privilege to statements made in the course of judicial proceedings. Chrysler Motors Corp. v. Graham, 631 N.E.2d 7, 9 (Ind.Ct.App. 1994) (citing Wilkins v. Hyde 41 N.E.2d 536, 536 (Ind. 1895)). That privilege, however, is abrogated when the statements are not relevant and pertinent to the litigation or bear no relation thereto. Stahl v. Kincade, 192 N.E.2d 493, 497 (Ind.App. 1963). However, the privilege is withdrawn only when the statements are so palpably irrelevant to the subject matter of the controversy that no reasonable person could doubt its irrelevancy and impropriety.Id.
"The absolute privilege is grounded in the idea that: `[P]ublic interest in the freedom of expression by participants in judicial proceedings, uninhibited by the risk of resultant suits for defamation, is so vital and necessary to the integrity of our judicial system that it must be made paramount to the right of the individual to a legal remedy when he has been wronged.'" Chrysler Motors Corp., 631 N.E. at 9 (quoting 50 AM. JUR. 2d Libel Slander § 231).
Whether Mr. Badger was entitled to unemployment compensation depended on whether his suspension and later discharge were found to have resulted from work-related misconduct. Thus, details of his suspension and discharge would necessarily have to have been discussed. Assuming arguendo that defamatory statements were made in the course of the unemployment hearing, those statements were privileged, having been made in the course of a judicial proceeding, unless such privilege was lost. Mr. Badger has provided no evidence to support a finding that the statements made during the unemployment hearing were not privileged. Thus, his claim cannot withstand summary judgment. Because there is no evidence that the statements made by Defendants during the unemployment compensation hearings were not pertinent to that litigation, we hold, as a matter of law, that Mr. Badger cannot recover on a claim of defamation per se.
V. Intentional Infliction of Emotional Distress.
Mr. Badger's final claim is that Defendants' conduct in publically disclosing false and malicious allegations against him has been extreme and outrageous and has caused him to suffer severe emotional distress. Defendants counter that they conducted a reasonable and thorough investigation into the charges and that their conduct throughout this controversy has been justifiable and commendable.
Indiana defines the tort of the intentional infliction of emotional distress as follows: "one who by extreme and outrageous conduct intentionally or recklessly caused severe emotional distress to another is subject to liability for such emotional distress." Cullison v. Medley, 570 N.E.2d 27, 31 (Ind. 1991) (Adopting the Restatement (Second) of Torts § 46 (1965));Watters v. Dinn, 633 N.E.2d 280, 292 (Ind.App. 1994). This cause of action is based on an intent to harm another person emotionally, imposing liability only when the tortious conduct "has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."Gable v. Curtis, 673 N.E.2d 805, 810 (Ind.App. 1996). The Court of Appeals in Gables explained, "Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, `Outrageous!'" Id.
Mr. Badger contends that the School's actions bore all the hallmarks of a witch hunt, similar to the ignominious historical witch hunts in Salem, Massachusetts in 1692, when the town executed women who were branded as witches based largely on the allegations of children with little or no actual evidence to support those salacious charges. Mr. Badger claims his case is the same. We are not unsympathetic to Mr. Badger's characterization of events occurring in connection with his termination of employment. Defendants argue, "The School was put in the position of deciding whom to believe under these circumstances, the two boys or Mr. Badger. Given all of the circumstances . . . the Superintendent chose to believe the two boys' version of the facts (at least with respect to the alcohol and drug issues)." Defs.' Reply Brief at 9. Defendants' explanation of their decision, rather than justifying the results of their decision-making, actually provides grounds for further concern. We are left to wonder why the School chose to believe the two boys, who, themselves, admittedly had been drinking at the time and when no other witness at the Party corroborated their tale in any of its particulars. If Supt. Pulliam believed the truthfulness of the reports of the two boys with respect to the alcohol and drug charges (which belief the School Board appears to have accepted in full), why were the allegations of Mr. Badger's sexual impropriety made the central justification for his termination? Finally, we are left to wonder why the School has continued to prominently and publically repeat the allegations of sexual impropriety (in this court and in the unemployment hearing), when they were not the basis for their original employment termination decision? Did Plaintiff's sexual preference make the alcohol and drug allegations against him more plausible or more egregious to the school officials? We Wonder.
All the other witnesses testified that the two boys were present at the Party and that they were drinking alcohol. There is unanimous agreement as well that the boys were uninvited guests at the adult portion of the party, that they arrived intoxicated carrying their own liquor, and that they were promptly asked to leave. See Aff. of Robert Badger at ¶¶ 3-5, 11-13; Aff. of Ronette Smith at ¶¶ 7-9; Aff. of Daniel Koch at ¶¶ 4-8; Aff. of William T. Keeler, Jr. at ¶¶ 3-7. In addition to the three individuals who submitted affidavits in his support, Mr. Badger has provided the names of five other individuals who allegedly would also corroborate his version of events.
The primary justification Defendants advance for believing the account of Messrs. Hatcher and West is that their allegations were corroborated by a "detailed investigation" which the School conducted; however, the record is entirely devoid of admissible evidence regarding any such investigation or its findings. We are skeptical of any claimed thoroughness of any investigation that the School allegedly conducted, given the fact that in this litigation Defendants have been unable to produce any evidence to corroborate the two boys' allegations. In lieu of affirmative evidence supporting the charges against Mr. Badger, Defendants have resorted to distortions and misstatements of the testimony of Mr. Badger, his witnesses, and other evidence of record in an attempt to corroborate the two boys' allegations and thus to justify the School's actions. The record suggests that Defendants have put substantially more effort into propagating the serious and essentially unsubstantiated claims against Mr. Badger than they have in investigating whether those claims were actually true. We are troubled especially by the cavalier approach taken by Defendants with respect to the allegations of sexual impropriety, their apparent lack of concern regarding the impact such allegations would have on the career and employment prospects of a person employed in the field of education, their persistence in perpetuating unfounded allegations, their failure to acknowledge the substantial evidence contradicting the boys' claims, Defendants' repeated refusal to submit the boys' claims to a further investigative scrutiny, and Defendants' distortions of other witnesses' accounts in an effort to make them conform to the boys' account. We conclude that a reasonable jury could find that Defendants' conduct was "extreme and outrageous" which "intentionally or recklessly caused severe emotional distress" to Mr. Badger. Accordingly, we deny Defendants' Motion for Summary Judgment on this count as well.
See Defs.' Reply Brief at 13.
Even Defendants' submissions which were stricken by the Court do not support the boys' allegations against Mr. Badger, especially with regards to the allegations of sexual impropriety.
For example, Defendants claim that the School met with "Mr. Badger and his Union representative four (4) times." Defs.' Reply Brief at 13. There is no admissible evidence in the record to support this assertion (even Defendants' stricken submissions do not support this contention). The best the Court can surmise is that Defendants' assertion that there were four meetings (instead of three) stems from the illogical combination of two affidavits (one of which was stricken), though both explicitly agree that there were only three meetings between Mr. Badger and the School. The two affidavits disagree as to the date of one of the meetings. Inexplicably, Defendants now claim there were, in fact, four meetings. The additional assertion that a union representative was present for four meetings appears to be an outright error. Defendants characterize the testimony of all the witnesses at the Party, except the two boys, in this same convoluted manner. See, e.g., Defs.' Reply Brief at 8-9.
We are also disturbed to note that at least two individuals seem to have submitted perjurous affidavits to this Court. The discrepancy between Messrs. Hatcher and West's account of events at the Halloween party with that of Mr. Badger and at least three other witnesses cannot be explained away on the basis of differing perceptions, nor can we attribute the differences to witnesses' failure to recall particular events. We assume counsel for both parties are well aware of the implications of presenting perjured testimony at trial and their responsibilities to the Court, pursuant to Indiana Rule of Professional Conduct 3.3 (Candor Toward the Tribunal).
Conclusion
For the reasons set forth above, we conclude that Mr. Badger has presented sufficient evidence to permit his Fourteenth Amendment and intentional infliction of emotional distress claims to proceed. Accordingly, Defendants' Motion for Summary Judgment on these counts is DENIED. However, Mr. Badger has failed to present evidence necessary to maintain his claim of defamation per se; therefore, Defendants' Motion for Summary Judgment isGRANTED as to this claim only.