Summary
stating law is unclear whether Indiana courts would apply ITCA to state constitutional claims
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NO. IP99-0642-C-T/G.
June 8, 2000.
ENTRY ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This cause comes before the court on the motion for summary judgment of Defendants Washington Board of Works, Mayor Tom Baumert, Councilman Ralph Brummett, Councilman James Stimel and Chief Dennis Baker.
Background
These facts are taken from the parties' statements of material facts as supported by evidentiary submissions and viewed in the light most favorable to the Plaintiff, with all reasonable inferences drawn in his favor. The Plaintiff Barry Baker was employed as a firefighter with the City of Washington in the State of Indiana. His employment was terminated on February 19, 1998. The Defendant Washington Board of Works (the "Board"), rather than Defendant Chief Dennis Baker (the two Bakers are not related), had the authority to terminate Plaintiff Baker's employment as a firefighter. Chief Baker, however, did recommend to the Board that Plaintiff Baker's employment be terminated. Defendants Tom Baumert, Ralph Brummett and James Stimel comprise the Board.
Since 1997, Plaintiff Baker has owned and operated a bar. Chief Baker did not approve of Plaintiff Baker's bar ownership. The Chief's church thinks it's wrong for a person to own a bar. The Chief made various comments to the Plaintiff regarding religion and Plaintiff's bar ownership. Plaintiff Baker interpreted one such comment as a threat that he had to get out of the bar business "or else" he would lose his job with the fire department.
Plaintiff claims that in the late summer or early fall 1997, he complained to Board member Ralph Brummett about the Chief's comments. (See Pl.'s Resp. Objections Defs.' Statement Material Facts 48.) The materials cited to support this statement, (see Baker Dep. at 37-38, 42, 43), however, have not been provided to the court. Therefore, this statement must be disregarded. FED. R. CIV. P. 56(c); S.D. Ind. L.R. 56.1.
Plaintiff Baker worked a second job at the Budgetel Inn. In November 1997, he was injured while working there and, because of his injuries his physicians instructed him not to return to work at the fire department. He requested "light duty" work from the fire department, but was told by the Chief there was none. Plaintiff performed "light duty" work at the Budgetel Inn following his injuries.
On February 19, 1998, the Board held a hearing to determine the disciplinary action to be taken against Plaintiff Baker. He had notice of and attended the hearing. Before the hearing, Chief Baker told Plaintiff that he could complain and do all he wanted, but the hearing was a formality and the termination decision had already been made. Plaintiff had the opportunity to be represented by counsel at the hearing, but he was not.
At the hearing, the Board heard evidence from several witnesses, including Plaintiff Baker, and accepted exhibits. Plaintiff Baker was afforded the opportunity to present witnesses on his behalf and cross-examine witnesses; he did question witnesses. The City had a sick leave policy, which applied to Plaintiff. Plaintiff's understanding of the sick leave policy was that he could use sick days and still work a second job. Chief Baker, however, testified that he gave the Plaintiff direct orders not to work any other jobs on the days on which he called in sick to the fire department. (Ex. 3 to Materials Supp. Pl.'s Opp'n Defs.' Mot. Summ. J. at 19-20.) The Plaintiff denies that he was given such orders or warning. At the hearing, he did not specifically claim that religious differences were the basis for the disciplinary action, but did make reference to Chief Baker's objections to Plaintiff's bar ownership.
Curiously, though, at the hearing, Plaintiff Baker testified that "[t]his policy [the sick leave policy] and Dennis is [sic] absolutely right," (Tr. at 29), and that he "apologized to Dennis the other day," (id. at 33), and he "admit[ted that he] did something I shouldn't have done." (Id. at 37.)
The Board determined that the Plaintiff's employment should be terminated for the stated reason of "disobeying orders" by working at a second job at Budgetel while on sick leave from the fire department. There is no evidence that Plaintiff appealed the Board's decision to the superior or circuit court.
In this action the Plaintiff brings a Section 1983 claim alleging violations of his 1) freedom of religion protected by the First and Fourteenth Amendments of the U.S. Constitution and 2) due process rights protected by the Fourteenth Amendment. He also brings supplemental state law claims, alleging violations of his rights to due process and freedom of religion protected by the Indiana Constitution as well as a violation of his statutory right to a fair hearing under Indiana Code 36-8-3-4. He seeks reinstatement, lost pay and benefits, injunctive relief, compensatory and punitive damages, as well as attorney's fees and costs. The individual defendants are sued in both their official and individual capacities.
Discussion
Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The court construes the evidence and draw all reasonable inferences based on the evidence in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
The Defendants contend they are entitled to summary judgment because: 1) collateral estoppel precludes the Plaintiff from relitigating the basis of his termination by the Board; 2) the Plaintiff waived his federal constitutional claims by failing to pursue the exclusive remedy under Indiana Code 36-8-3-4; 3) the Plaintiff was terminated for legitimate reasons and he cannot establish pretext; 4) the Plaintiff cannot establish the necessary illegitimate motive or animus behind the decision to terminate his employment; 5) the Chief lacks personal involvement in the Plaintiff's termination; 6) the individual defendants are shielded by qualified immunity; 7) the Plaintiff received due process; 8) the Plaintiff cannot establish the deprivation of substantive due process; 9) the Plaintiff has waived his state constitutional claims by failing to file a Tort Claim Notice; and 10) Indiana does not recognize a private cause of action for deprivation of state constitutional rights.
Collateral Estoppel
The court is not persuaded that collateral estoppel bars the Plaintiff from relitigating the facts underlying his claims against the Defendants. In University of Tennessee v. Elliott, 478 U.S. 788, 797 (1986), the Supreme Court recognized that federal common law principles of preclusion apply to state administrative actions in civil rights cases. The Court held that "when a state agency `acting in a judicial capacity . . . resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate,' . . . federal courts must give the agency's factfinding the same preclusive effect to which it would be entitled in the State's courts." Id. at 799 (quotation omitted). Thus, the court applies Indiana law to decide whether collateral estoppel precludes Baker from relitigating any factual issues decided in his Board hearing. Because collateral estoppel is an affirmative defense, the Defendants bear the burden of persuasion. See Havoco of Am., Ltd. v. Freeman, Atkins, Coleman, Ltd., 58 F.3d 303, 306 (7th Cir. 1995).
The Defendants note that the issue of religious discrimination was not raised at the Board hearing, (Defs.' Mem. Supp. Mot. Summ. J. at 13), but contend that the Plaintiff is precluded from litigating the issue in this case because it could have been raised in that prior proceeding. The Defendants are incorrect. Pliska v. City of Stevens Point, Wis., 823 F.2d 1168 (7th Cir. 1987), upon which they rely involved the preclusive effect of prior state court proceedings through application of res judicata. Id. at 1172. Shewmaker v. Etter, 644 N.E.2d 922, 931 (Ind.Ct.App. 1994), adopted by Hammes v. Brumley, 659 N.E.2d 1021 (Ind. 1995), upon which Defendants rely in their reply brief, recognized that res judicata bars the relitigation of issues which were actually litigated or which could have been litigated in a prior first action. The case did not discuss collateral estoppel, however.
Though res judicata precludes relitigation of issues that could have been raised in a prior action, collateral estoppel precludes relitigation only of issues that were actually litigated and decided in a prior action. See, e.g., Doe v. Allied-Signal, Inc., 985 F.2d 908, 913 (7th Cir. 1993); Flowers v. Carson, 917 F. Supp. 614, 621 (S.D. Ind. 1996) (explaining collateral estoppel "applies "where a particular issue is adjudicated in a prior action and is put in issue in a subsequent suit on a different cause of action") (emphasis in Flowers); Kimberlin v. DeLong, 637 N.E.2d 121, 125 (Ind. 1994) ("Collateral estoppel may bar the subsequent re-litigation of the same fact or issue which was necessarily adjudicated in a prior lawsuit.") (Emphasis added); Exide Corp. v. Millwright Riggers, Inc., 727 N.E.2d 473, 477 (Ind.Ct.App. 2000); Gorski v. Deering, 465 N.E.2d 759, 762 (Ind.Ct.App. 1984). Neither Lilley v. City of Carmel, 527 N.E.2d 224 (Ind.Ct.App. 1988), nor Martincich v. City of Hammond, 419 N.E.2d 240 (Ind.Ct.App. 1981), cited in the Defendants' reply, is to the contrary. As stated, it is undisputed that the issue of religious discrimination was not raised at the Board hearing. This fact alone dooms the Defendants' argument that collateral estoppel bars the Plaintff's federal claims in this action.
Baker's references at the hearing to Chief Baker's objections to his bar ownership are insufficient to put the religious discrimination issue before the Board for at least two reasons First, these references cannot be reasonably understood as raising the issue of religious discrimination. In addition, there is no evidence that the Board specifically considered such references in reaching its determination to terminate Baker's employment.
It is noted, however, that the Defendants have argued that the Plaintiff's federal claims are barred by the doctrines of "res judicata and/or collateral estoppel." (Defs.' Mem. Supp. Mot. Summ. J. at 13.) The Defendants apparently are confused about the doctrines of res judicata and collateral estoppel. The doctrine of res judicata does not apply unless there has been a prior judicial determination on the merits. See Metropolitan Dev. Comm'n v. Schroeder, 727 N.E.2d 742, 751 (Ind.Ct.App. 2000); Indiana Ins. Co. v. American Community Servs., Inc., 718 N.E.2d 1147, 1155 (Ind.Ct.App. 1999) (stating that a judgment by a court of competent jurisdiction is a requirement for preclusion under res judicata). The Board is not a court of competent jurisdiction and it did not render a "judgment". Therefore, res judicata does not bar the Plaintiff's claims in this case.
Watson Rural Water Co. v. Indiana Cities Water Corp., 540 N.E.2d 131 (Ind.Ct.App. 1989), cited by the Defendants in their reply, does note that res judicata has two branches: "estoppel by judgment" and "estoppel by verdict." Id. at 135. The court equated the latter with "collateral estoppel," and said it is applicable "when a particular issue is adjudicated and then is put into issue in a subsequent suit . . . ." Id. Though some language in the case could be understood to suggest that res judicata might apply to administrative decisions, nothing in the case indicates that res judicata could apply absent an actual adjudication of an issue.
Furthermore, the Plaintiff's argument that the Board's factual findings are not entitled to preclusive effect because the Board was not acting in a judicial capacity has appeal. In Thornquest v. King, 82 F.3d 1001 (11th Cir. 1996), the Eleventh Circuit considered an analogous situation and held that a college board of trustees was acting as the plaintiff's employer and not in a judicial capacity when it made the decision to terminate the plaintiff's employment. Id. at 1004. The Florida statute at issue in Thornquest, FLA. STAT. 240.319(3) (providing that "board of trustees shall provide for the ... removal of personnel"), is analogous to the Indiana statute, IND. CODE 36-8-3-4 (authorizing the Board to take certain employment actions, including dismissal, against police officers and firefighters), at issue in the instant case.
One of the requirements under Indiana law for the application of collateral estoppel to administrative decisions is that the agency act in a "judicial capacity." See McClanahan v. Remington Freight Lines, 517 N.E.2d 390 (Ind. 1988).
In reply, the Defendants maintain the court must apply the preclusive effect to the Board's decision as would Indiana courts rather than according to Florida law. They cite South Bend Fed'n of Teachers v. National Ed. Ass'n — South Bend, 389 N.E.2d 23 (Ind.Ct.App. 1979), for the preposition that: "Where a statutory right to a hearing involves a fair hearing in what amounts at least to somewhat of a court action, fair play demands the application of the doctrine of res judicata to a prior determination of the agency." Id. at 33. However, the court applied the doctrine of collateral estoppel rather than res judicata. Id. at 33-34. The Defendants also note that an Indiana court has characterized an administrative hearing over a police officer's dismissal as "a search for truth concerning the charges levied against" the officer, see Shoaf v. City of Lafayette, 421 N.E.2d 1168, 1171 (Ind.Ct.App. 1981). That case did not involve or discuss collateral estoppel or res judicata and, therefore, is of little help to the Defendants here.
Waiver of Federal Claims
The Defendants next argue that the Plaintiff's failure to seek judicial review of the Board's decision in a timely manner waives his right to appeal or challenge the Board's decision. With one exception, the case authorities upon which the Defendants rely (see City of Fort Wayne, Ind. v. Bishop, 92 N.E.2d 544, 547 (Ind. 1950), Roark v. City of New Albany, 466 N.E.2d 62, 66 (Ind.Ct.App. 1984)), were all decided prior to the Supreme Court's decision of Felder v. Casey, 487 U.S. 131, 147-48 (1988), which held that a plaintiff who brought a Section 1983 action in state court did not have to comply with the state's notice of claim statute. Under Felder, exhaustion of state administrative remedies is not required for Section 1983 claims. See Felder, 487 U.S. at 147-48; Mid-American Waste Systems, Inc. v. City of Gary, Ind., 49 F.3d 286, 291 (7th Cir. 1995). The Indiana cases relied upon by the Defendants held that exhaustion of administrative remedies and/or failure to comply with the statutory procedure for judicial review was required before a plaintiff could bring a Section 1983 action in state court. They did not hold that the same requirements must be satisfied before a plaintiff could bring a Section 1983 action in federal court. Because Baker brings his Section 1983 claims in this, a federal court, the authorities upon which the Defendants rely are inapposite. Further, their vitality is questionable in light of Felder. See Myers v. Moyars, 667 N.E.2d 1120, 1124 (Ind.Ct.App. 1996) (holding exhaustion of administrative remedies not required before plaintiff may bring Section 1983 action in Indiana state court).
Under Indiana statutory law, Baker had the right to appeal the Board's decision by filing a complaint in state courts within thirty days of the date of the Board's decision. IND. CODE 36-8-3-4(e), (f).
The only case upon which Defendants rely which was decided after Felder is this court's decision in Kennedy v. McCarty, 778 F. Supp. 1465 (S.D. Ind. 1991). There, this court dismissed the plaintiff reserve police officer's due process claims arising from his discharge. The dismissal was not based on a failure to exhaust administrative remedies but because the plaintiff had an adequate postdeprivation remedy, namely an appeal pursuant to IND. CODE 36-8-3-4. Id. at 1476-77. Thus, Kennedy does not hold that all Section 1983 claim should be dismissed for failure to exhaust state administrative remedies. Id. at 1478.
Official Capacity Claims
The Defendants contend the Section 1983 official capacity claims against the individual defendants should be dismissed. A suit against a government official in his official capacity is a suit against the governmental entity itself. See Kentucky v. Graham, 473 U.S. 159 (1985); Wilson v. Civil Town of Clayton, Ind., 839 F.2d 375, 382 (7th Cir. 1988) ("An official-capacity suit is not a suit against the official as an individual; the real party in interest is the entity."). Thus, the Plaintiff's Section 1983 claims against the individual defendants in their official capacities are redundant of his claims against the Board itself. Accordingly, such claims will be DISMISSED.
The caption of the Complaint identifies these Defendants as "Mayor" or "Councilman," but they are sued in their capacities as Board members, not in any other capacity. (See Am. Compl.; Pl.'s Answers Interrog. Nos. 18-20.)
Qualified Immunity
The argument that the individual Defendants are entitled to qualified immunity is not persuasive. Under this doctrine, "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). At the time of the Plaintiff's discharge in 1998, it was clearly established, and a reasonable person would have known, that a public employee could not be discharged based on his failure to conform to a superior's religious beliefs. See, e.g., Venters v. City of Delphi, 123 F.3d 956, 970-71 (7th Cir. 1997).
Religious Discrimination
A plaintiff can demonstrate discrimination in employment in violation of Section 1983 with either evidence of discriminatory intent or by employing the familiar McDonnell-Douglas burden-shifting framework. See McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973); Pilditch v. Board of Educ. of the City of Chicago, 3 F.3d 1113, 1115-16 (7th Cir. 1993). Under the former approach, a plaintiff must present direct or circumstantial evidence that the employment decision was motivated by the employer's discriminatory animus. See Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000). This generally takes the form of statements such as "I fired you because of your religion." See Robin v. Espo Eng'g Corp., 200 F.3d 1081, 1088 (7th Cir. 2000). The Plaintiff argues that he has presented evidence that "comes close" to being direct evidence of religious discrimination: Chief Baker threatened to fire him in 1997 if he bought the bar.
The Plaintiff advances the "cat's paw" theory in an effort to impute the Chief's alleged discriminatory animus to the Board. The theory has been summarized as follows:
[T]here can be situations in which the forbidden motive of a subordinate employee can be imputed to the employer because, under the circumstances of the case, the employer simply acted as the "cat's paw" of the subordinate. See Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990) (holding that if review committee that was unaware of district manager's age-based animus acted "as the conduit of [manager's] prejudice — his cat's paw — the innocence of its members would not spare the company from liability"). Our cases have noted that this situation may occur in an instance in which a subordinate, by concealing relevant information from the decisionmaker, is able to manipulate the decisionmaking process and to influence the decision. See Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1400 (7th Cir. 1997) (citing cases); Gusman v. Unisys Corp., 986 F.2d 1146, 1147 (7th Cir. 1993). These cases prevent an employer from escaping liability by setting up many layers of pro forma review, thus making the operative decision that of a subordinate with an illicit motive. Gusman, 986 F.2d at 1147; see Shager, 913 F.2d at 405. In such a case, a jury may impute the discriminatory motive of the biased subordinate, as opposed to the motives of the ignorant decisionmaker, to the company.
Willis v. Marion County Auditor's Office, 118 F.3d 542, 547 (7th Cir. 1997); see also Eiland v. Trinity Hosp., 150 F.3d 747, 752 (7th Cir. 1998) (no "cat's paw" absent evidence that physician who made racist comments influenced the discharge and the where plaintiff was discharged only after her supervisor conducted independent investigation and evaluated plaintiff's version of incident); Dey v. Colt Constr. Dev. Co., 28 F.3d 1446, 1458 (7th Cir. 1994) (stating "[s]ummary judgment generally is improper where the plaintiff can show that an employee with discriminatory animus provided factual information or other input that may have affected the adverse employment action.").
The Plaintiff argues the theory based on Chief Baker's comments to him about religion and bar ownership as well as the Chief's remark to him before the Board hearing that no matter what the Plaintiff said or did, the hearing was just a formality and the termination decision was already made. Though a slim reed indeed, the court finds that the Plaintiff has come forward with sufficient evidence to raise a genuine issue of material fact as to whether Chief Baker improperly influenced the Board's decision to terminate the Plaintiff's employment. From Chief Baker's remark, a jury could reasonably infer that Chief Baker had foreknowledge about the Board's decision to discharge the Plaintiff, that the Board's decision to discharge the Plaintiff was not based on anything presented at the hearing, but was made prior to the hearing, and that the hearing was a mere formality or "sham." A jury could reasonably infer that the Board did not exercise independent judgment in discharging Plaintiff Baker but based its decision solely on the recommendation and input of Chief Baker. And, a jury could find, based on the evidence and drawing all reasonable inferences in favor of Plaintiff Baker, that Chief Baker's recommendation and input were tainted by discriminatory motive.
The court notes that the Defendants dispute that Chief Baker made this statement; however, at this stage of the proceedings, where facts are disputed, the court must accept the evidence in the light most favorable to nonmovant Plaintiff Baker.
This is not to say that Chief Baker had any influence over the makeup or composition of the Board. By statute, the Board members are the city executive, in this case Mayor Baumert, and two persons appointed by the executive. IND. CODE 36-4-4- 2(c).
For this reason, the court rejects the Defendants' argument that Chief Baker lacked the requisite personal participation in the alleged constitutional deprivation.
Though the Board held a hearing and heard evidence, it cannot be said as a matter of law that the Board's discharge decision was "clearly made on an independent and a legally permissive basis" so as to render Chief Baker's alleged discriminatory motive irrelevant. See Willis, 118 F.3d at 547 (emphasis added). The court determines that a reasonable jury could impute Chief Baker's alleged animus to the Board. Thus, the Plaintiff has come forward with sufficient evidence to create a genuine issue of material fact necessitating trial on his religious discrimination claim. Accordingly, the Defendants' motion for summary judgment is DENIED on the Section 1983 religious discrimination claim.
Due Process
The Plaintiff's due process claim boils down to this: the Board's hearing was a sham because the members had already made up their minds. (See Opp'n Defs.' Mot. Summ. J. at 23.) The court understands the Plaintiff to be asserting only a procedural due process claim; not a substantive due process claim. This view is bolstered by the case authorities relied upon by the Plaintiff in opposing the Defendants' motion. (See id. at 22 (citing procedural due process cases such as Board of Regents v. Roth, 408 U.S. 564 (1972) and Gustafson v. Jones, 117 F.3d 1015 (7th Cir. 1997)).
"Due process requires that, prior to termination, an employee be given the chance to tell [his] side of the story, and that the agency be willing to listen." Ryan v. Illinois Dep't of Children Family Serv., 185 F.3d 751, 762 (7th Cir. 1999). Evidence that the decision to discharge the plaintiff was already made and that the hearing was nothing but a sham is sufficient to survive summary judgment on a procedural due process claim. See id. at 762- 63. The same evidence that defeats the Defendants' summary judgment motion as to the religious discrimination claim defeats the motion as to the due process claim. As stated, a jury could reasonably infer based on the evidence, namely Chief Baker's remark to the Plaintiff before the hearing, that the discharge decision was made before the hearing and the hearing was just a "sham." Though this evidence is slim, the Plaintiff has come forward with enough to get by summary judgment. The court therefore DENIES the Defendants' summary judgment motion with respect to the Section 1983 due process claim.
Kennedy v. McCarty, 778 F. Supp. 1465 (S.D. Ind. 1991), mentioned previously, should be distinguished here to avoid any confusion. The availability of an adequate postdeprivation remedy defeated the plaintiff's due process claim in that case only because he alleged the decision to discharge him was beyond the scope of the decisionmaker's authority. Id. at 1476. If the discharge decision was beyond the scope of the decisonmaker's authority, then the defendant city could not have provided the plaintiff any meaningful predeprivation hearing. Id. Not so here. The undisputed facts establish that the decision to discharge Plaintiff Baker was within the Board's authority. Thus, the availability of a postdeprivation remedy not defeat his due process claim.
State Law Claims
The Defendants first argue that the Plaintiff has waived his state constitutional claims for failure to file a timely tort claim notice. They have not cited to any case which holds that a state constitutional claim is governed by Indiana's Tort Claims Act, and the court's own research has located none. It is unclear whether the Indiana courts would require a tort claim notice be filed with respect to state constitutional claims. (Clearly no such notice is required as to Plaintiff's Section 1983 claims, however. See Werblo v. Board of Trustees of the Hamilton Heights Sch. Corp., 537 N.E.2d 499, 501 (Ind. 1989).) In the absence of any such authority, the court declines to impose such a requirement in this case.
The Defendants also argue that there is no private right of action under the Indiana Constitution. The court understands the Defendants to argue there is no private right of action for damages under the state constitution. In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Court recognized an implied right of action for damages under the United States Constitution against federal agents for violations of federal constitutional rights. The court finds it unlikely that the Indiana courts would recognize such an implied right of action for damages under the Indiana Constitution. First, Indiana's courts have been hesitant to recognize implied rights of action under Indiana statutory law. See, e.g., Right Reason Publications v. Silva, 691 N.E.2d 1347, 1352 (Ind.Ct.App. 1998) (no private cause of action for violation of IND CODE 35-46-2-1); Holvoet v. State, 689 N.E.2d 469, 472 (Ind.Ct.App. 1997) (no private right to petition court to convene grand jury under IND. CODE 35-34-2-2), trans. denied, 706 N.E.2d 167 (Ind. 1998); Vukovits v. Board of Sch. Trustees, 659 N.E.2d 174, 179 (Ind.Ct.App. 1995) (no private cause of action for non-renewal of teacher contracts under staff performance evaluation statute), trans. denied; Walling v. Appel Serv. Co., 641 N.E.2d 647, 652 (Ind.App. 1994) (no private cause of action for a violation of Indiana Code 13- 7-4-1); Coons by Coons v. Kaiser, 567 N.E.2d 851, 852 (Ind.Ct.App. 1991) (declining to imply additional private cause of action based on IND. CODE 20-7.5-1-14 where statute already provided for enforcement); but see Stampco Const. Co. v. Guffey, 572 N.E.2d 510 (Ind.Ct.App. 1991) (recognizing an implied private cause of action for violations of minimum wage statute). There is no reason to believe they would treat constitutional law any differently.
42 U.S.C. § 1983 provides for a cause of action for violations of the U.S. Constitution but not for a cause of action for violations of a state constitution.
Further, when determining whether there is a private cause of action for a violation of statutory law, Indiana courts begin by examining legislative intent. See, e.g., City of Muncie v. Peters, 709 N.E.2d 50, 56 (Ind.Ct.App. 1999), trans. denied.; Coons, 567 N.E.2d at 852; Bartholomew County Beverage Co. v. Barco Beverage Corp., Inc., 524 N.E.2d 353, 356 (Ind.Ct.App. 1988). By analogy, the Indiana courts would begin with the intent of the framers of the Indiana Constitution to determine whether there is a private cause of action for damages for constitutional violations. It is unlikely that the framers intended such an action because they would have understood sovereign immunity to bar such an action. See, e.g., Shoemaker v. Board of Comm'rs, 36 Ind. 175, 186 (1871). For these reasons, this court declines to recognize an implied right of action for damages directly under the Indiana Constitution in the absence of any clear indication from the Indiana Supreme Court (or even the appellate courts) of such an action. Therefore, the Defendants' motion for summary judgment should be GRANTED on the Plaintiff's claims for damages under his state constitutional claims.
However, as even the Defendants acknowledge, the arguments and evidence presented with respect to the Plaintiff's federal constitutional claims apply equally to the substance of his state constitutional claims. (See Defs.' Mem. at 32 (citing cases).) Accordingly, the Plaintiff's claims for injunctive relief for violations of his rights to freedom of religion and due process protected by the Indiana Constitution survive summary judgment and the motion is DENIED on the Plaintiff's Indiana Constitutional claims to the extent they seek equitable relief.
Denial of Fair Hearing Under IND. CODE 36-8-3-4
The Defendants contend that they are entitled to summary judgment on Plaintiff's claim of a denial of a fair hearing under IND. CODE 36-8-3-4. They argue the Plaintiff has waived this claim by failing to take an appeal of the Board's termination decision to the appropriate Indiana superior or circuit court. The failure to follow the statutory procedure for judicial review under IND. CODE 36-8-3-4 bars a court from exercising jurisdiction over an action under state law challenging the employment decision made under the statute. See Roark, 466 N.E.2d at 64-66. There is no evidence that the Plaintiff timely appealed the Board's decision to the appropriate court. Therefore, the court finds that the Plaintiff's denial of a fair hearing claim in violation of IND. CODE 36-8-3-4 is barred, and the Defendants' summary judgment motion will be GRANTED on Plaintiff's claim under IND. CODE 36-8-3-4.
Conclusion
For the foregoing reasons, the Defendants' motion for summary judgment is GRANTED IN PART and DENIED IN PART. The claims against the Board members in their official capacities will be DISMISSED and the motion will be GRANTED on the Plaintiff's claims for damages under the Indiana Constitution as well as his claim of a violation of his right to a fair hearing under Indiana Code 36-8-3-4. The other claims remain to be tried. Entry of final judgment awaits disposition of the remaining claims. ALL OF WHICH IS ORDERED this 8th day of June 2000.