Opinion
IP 00-1316-C-T/K
February 13, 2002
Entry on Motion for Summary Judgment and Motion to Strike Complaint and for Protective Order
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedngs.
Plaintiff, Karyn Romer, sued Defendants under 42 U.S.C. § 1983 alleging a violation of her First Amendment rights as well as state law claims. Plaintiff's claims arose from the termination of her employment with the Indiana Department of Education.
I. Motion to Strike Complaint and for Protective Order
As an initial matter, the court addresses the motion to strike the complaint and for a protective order, filed by Defendant Robert Marra, wherein he contended that the Complaint divulged confidential information. On November 21, 2000, Plaintiff filed a Notice To The Court, with the Authorization For Release Of Records/Information signed by the parents of the family that is at the center of this dispute. The release is responsive to the motion to strike and for protective order. Accordingly, that motion is DENIED.
In an effort to afford this family some semblance of privacy, the court will refer to them as "Family X," "Father and/or Mother X" and "Child X" rather than utilizing their actual names. The parties are in agreement as to the identity of the Family and its members.
II. Summary Judgment Standard
Summary judgment is appropriate only if the record shows "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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "The primary purpose of summary judgment is to dispose of claims that have no factual support, and therefore, the nonmovant must respond with affidavits or otherwise, `setting forth specific facts showing that there is a genuine issue for trial.'" Vukadinovich v. Bd. of Sch. Tr. of N. Newton Sch. Corp., No. 01-1625, 2002 WL 75883, at *4 (7th Cir. Jan. 22, 2002) (quoting Albiero v. City of Kankakee, 246 F.3d 927, 928 (7th Cir. 2001) (quoting Fed.R.Civ.P. 56(e))). "The mere existence of an alleged factual dispute is not sufficient to defeat a summary judgment motion." Id. (citing Kuchenreuther v. City of Milwaukee, 221 F.3d 967, 973 (7th Cir. 2000)). To withstand summary judgment, the nonmovant must present "definite, competent evidence to rebut the motion." Id. (quotation omitted). In determining whether there is a genuine issue, the court construes all facts and draws all reasonable inferences in favor of the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Affidavits supporting or opposing a summary judgment motion must be based on personal knowledge and set forth facts that would be admissible in evidence. Fed.R.Civ.P. 56(e); Fed.R.Evid. 602; see, e.g., Drake v. Minn. Min. Mfg. Co., 134 F.3d 878, 887 (7th Cir. 1998). Conclusory statements in affidavits are insufficient to create genuine issues. See, e.g., DeLoach v. Infinity Broad., 164 F.3d 398, 402 (7th Cir. 1999) ("the nonmoving party is not entitled to rely on conclusory allegations, unsupported by the record") (citation omitted)); Drake, 134 F.3d at 887 (Rule 56 requires "affidavits that cite specific concrete facts establishing the existence of the truth of the matter asserted") (quotation omitted). Inferences and opinions must be substantiated by specific facts. Drake, 134 F.3d at 887 (citing Davis v. City of Chicago, 841 F.2d 186, 189 (7th Cir. 1988).
These facts are not disputed unless otherwise noted. Additional facts may be set forth in the Discussion section as necessary. That section also will address various disputes about factual submissions proffered by the parties. The parties will note that they had many more disputes about the factual submissions than the court has addressed. That is because the disputes that are addressed in this entry are the only ones that were material to the issues that had to be decided to conclude that summary judgment is required. Even if all of the many other unresolved disputes about factual submissions were to be resolved in favor of Romer, her claims could not have survived summary judgment.
Karyn Romer is a former employee of the Indiana Department of Education (the "Department"), Division of Special Education (the "Division"). At all times relevant, Romer was an Education Consultant for the Division responsible for answering questions from the general public about their rights under the laws governing special education and for processing applications for special education students who needed alternative school programs. One of her duties as an Education Consultant was to provide information to parents about alternative services for children in special education and make sure the parents understood the process for applying for such services. At all times relevant, Robert Marra was the Director of the Division, Risa Regnier was the Director of Human Resources for the Department, and Carol Eby was Romer's supervisor.
In 1995, Mother X telephoned the Department to obtain information regarding residential placement at the Indiana Soldiers and Sailors Home in Knightstown for her daughter, Child X, who has learning disabilities and behavior issues. The call was transferred to Romer, and both she and Mother X immediately realized that they knew of each other. Romer had known of Mother X since Mother X was a teenager; Mother X is the daughter of Romer's optometrist; their parents were friends and they had seen each other at their parents' homes; Mother X and Romer belonged to the same synagogue; Romer had met Mother X's husband, Father X, once or twice; and Romer may have met Child X once or twice as well. During the phone call, Romer explained the residential services at Knightstown.
After that initial contact, Mother X called Romer a few times a year. They discussed Child X, available options, problems Mother X was having with the school corporation where they lived, and Romer gave Mother X recommendations relative to her daughter's special education.
Mother X became Romer's manicurist in 1997. Romer received manicures from Mother X every ten to twelve days. During the manicures, they discussed Child X, including a residential treatment facility, Child X's placement there, and reimbursement for the placement by the school corporation. In 1998, Father X worked on Romer's car; he worked on her car a total of four or five times.
In December 1999, Hamilton Southeastern's staff met to discuss Family X. After the meeting Romer inquired of a coworker whether he had revealed her personal relationship with Family X during the meeting. One of the reasons she asked him this was because she believed that Marra would not like the fact that she had a relationship with them: Marra had given her the impression that he would not like an education consultant to have any relationships with a family seeking special education services. Indeed, Marra holds the opinion that a staff person assisting an individual with whom he or she has a personal relationship is inappropriate. He also believes that if such a relationship exists, the staff member should ask someone else to take over the file.
Though Romer claims there is no rule or policy to this effect, she does not quarrel with the assertion that this is Marra's view on the matter.
Also in December, Ann Smith, the Director of the Special Education Cooperative, contacted Marra and asked if he knew of any personal relationship between Romer and Family X. Marra responded that he was unaware of such a relationship but would talk to Romer.
Marra first asked Romer about Family X at a meeting in mid-December 1999. He asked specifically about the background and history of Family X's application in the office and Romer's background and history with the family, which she understood to mean the special education issues. He asked her how she knew Mother X, and Romer responded that she knew her through the usual parent telephone call. Romer gave information extending back to 1995 when Mother X first contacted the office and told him that Mother X contacted her on and off since that time to the present. She did not tell him where the conversations took place. Nor did she tell him that she knew Family X outside the office. She did not tell him that Mother X was her manicurist. Marra did not specifically ask her if she knew Family X personally. Marra believed what Romer told him and reported their conversation to Smith.
In late December, Smith called Marra again and asked if he was aware of a relationship between Romer and Family X. Smith indicated that Romer had told a staff member that Family X were family friends. Smith asked Marra to check with Romer a second time.
So, at the end of December 1999, Marra had a second meeting with Romer concerning Family X. Marra asked a couple of questions of clarification about how the Family X application came into the office. Romer contends that she simply answered all of the questions that Marra put to her. She did not reveal any new details of her relationship with Family X.
In their third meeting, which occurred in January 2000, Marra again asked Romer about Family X. Marra told Romer that the school corporation thought she had a personal relationship with Family X, and Romer revealed, for the first time, that Mother X was her manicurist. Romer did not reveal any other information about her relationship with the family. She did not tell Marra that she and Mother X attended the same synagogue or that Father X had worked on her car.
Marra subsequently asked Romer to meet with him, Carol Eby and Becky Bowman, section manager for Due Process issues for the Division. At the meeting he told her that Hamilton Southeastern's attorney indicated that she would be called as a witness at a due process hearing regarding Family X. They discussed Family X's due process hearing and Romer's reassignment to other job responsibilities because Hamilton Southeastern thought she might retaliate against it. Romer was instructed not to have any contact with Family X. She was reassigned and, after the meeting changed manicurists temporarily.
Marra and Bowman also met with Regnier to discuss Romer. Regnier asked Marra to prepare a summary of his three meetings with Romer, which he did. Romer submitted a written response to that summary to Regnier, which in Marra's view, did not address the issues with which he was concerned. Marra and Regnier discussed that Romer had been untruthful with Marra, he thought Romer was insubordinate and had broken the trust relationship that they had had, and did not believe he could work effectively with her. Marra did not feel he would have confidence in Romer's judgment or truthfulness in the future and did not feel the trust relationship could be rebuilt. Marra and Regnier decided that Romer's employment should be terminated. Regnier and Marra met with Romer later the same day and advised her of the reasons for that decision, including insubordination. Romer was told she would be allowed to resign rather than be terminated.
Romer's resignation was effective April 28, 2000. At no time before her resignation did Romer tell any Department employee how long she had known Mother X, that Father X worked on her car, or that she and Mother X belonged to the same synagogue.
Romer alleges that her employment with the Department was terminated by Marra and Regnier in retaliation for the advice she gave to Family X. Romer claims that the advice she gave Family X was the same that she would have given any member of the general public. Defendants state that their reason for terminating Romer's employment was that she lied and was less than forthcoming about her relationship with Family X when asked about it by Marra.
IV. Discussion
Defendants move for summary judgment on Romer's claims. With respect to the First Amendment retaliation claim, one of Defendants' arguments is that Romer cannot demonstrate that the conduct allegedly protected by the First Amendment was a substantial or motivating factor for the decision to terminate her employment. They claim that Romer was terminated not because of what she told Family X, but because of what she said or didn't say to her supervisors. Defendants also argue that Romer's conduct was not protected by the First Amendment. They contend that Romer cannot prove her state law claims for intentional interference with a business relationship and intentional interference with a contractual relationship.
A. Disputed Factual Assertions
The court first addresses various disputes about the parties' factual assertions.
Romer's Statement of Additional Material Facts ("AMF") Number 293 asserts that during their second meeting, Marra asked a couple of questions of clarification about how the Family X application came into the office. The AMF cites paragraphs 11 and 12 of Romer's affidavit for support. Defendants object, arguing that these statements in the affidavit conflict with Romer's prior deposition testimony in which she said she could not specifically remember what Marra asked her. The court's review of page 141 of Romer's deposition reveals that Romer did testify that though she could not recall specifics, she believed Marra asked her for more clarification about how the Family X application came to the office. Defendants' objection is therefore OVERRULED.
Defendant's object to that portion of AMF 298 which states Romer's rationale for offering only that Mother X was her manicurist. Her rationale for offering only that Mother X was her manicurist is immaterial. Thus, the objection to that portion of AMF 298 is SUSTAINED. In similar vein, Defendants' objection to AMF 378 is SUSTAINED. The record establishes that Mother X was not just Romer's manicurist, and the characterization that the principal basis of Mother X and Romer's relationship was that Mother X was Romer's manicurist is conclusory and lacking in a factual basis. Again, Romer's reason for not revealing to Marra that she and Mother X attended the same synagogue or that Father X had worked on her car is immaterial. Defendants' objection to AMF 301 is therefore SUSTAINED.
Defendants' Statement of Material Facts ("SMF") Number 189, substantiated by pages 70 and 75 of Regnier's deposition, states that during the meeting between Marra and Regnier regarding Romer's employment, they discussed the fact that Romer had been untruthful, Marra felt she had been insubordinate, she had broken the trust relationship, and he did not feel she could work effectively in the Division. Romer disputes the assertions in this SMF, but her citation to "¶s 105, 113, 119-122, 127" does not create a genuine issue of material fact. The court understands the citation to the paragraph numbers as referring to Romer's responses to SMFs 105, 113, 119-122 and 127. Romer does not dispute SMF 105, though she disputes the others. Nothing in those SMFs or Romer's responses thereto directly refutes the assertion in SMF 189. Romer therefore has not raised a genuine dispute regarding what was discussed by Marra and Regnier at this meeting.
Romer's dispute and implicit objection to SMF 189 is therefore OVERRULED.
Defendants assert in SMF 192 and 193 that Marra did not feel he would have confidence in Romer's judgment or truthfulness in the future and did not feel the trust relationship could be rebuilt. Romer disputes these facts by citing to "¶s 105, 113, 119-122, 127." Nothing in SMFs 105, 113, 119-122 or 127 or Romer's responses thereto, however, directly refutes SMFS 192 or 193 which concern Marra's feelings of a lack of confidence in Romer and belief that the trust relationship could not be rebuilt. Romer's implicit objection to SMF 192 and 193 is thus OVERRULED.
AMF 297 states that the first time Marra asked Romer about her personal relationship with Mother X was during the third meeting. In similar vein, AMF 299 states that at no time before the third meeting did Marra ask her about a personal relationship with Family X or suggest the school thought she had one with the family. Defendants object, arguing that Romer testified at her deposition that Marra asked her about her background and history with the family during the first conversation they had about Family X. Romer did testify that Marra asked her about her background and history with the family, and she explained that she understood him to mean "the special education related issues." (Romer Dep. at 137-38.) As there is no dispute that during the first and second meetings Marra did not specifically use the words "personal relationship" when asking Romer about Family X, the court will generously construe the record in favor of Romer and accept that Romer understood Marra to mean the special education related issues. The objections to AMF 297 and AMF 299 are therefore OVERRULED. Nevertheless, even if that is what Romer understood Marra to mean, it remains undisputed that Romer failed to reveal her personal relationship with Family X until Marra expressly asked her whether she had a personal relationship with them, even though she knew Marra would not approve of such a relationship.
Romer claims in AMF 288 that if Marra had asked her whether she had such a relationship, she would have readily explained that she knew the family. Romer also claims that the second time Marra asked her about Family X, he only asked a few clarification questions about how their application came into the office, and she simply answered the questions put to her. AMF 295 states that none of the questions asked of Romer during the second meeting with Marra had anything to do with whether she knew Family X personally or where her conversations with Mother X took place. It also states that if Marra had asked Romer about her personal relationship at the time, she would have readily answered him. Romer's affidavit at paragraph 13 is cited for support. Defendants object to AMF 295 on the grounds that it is not supported by the evidence. Defendants are correct: Romer testified during her deposition that during the second meeting, she "just answered whatever questions [Marra] asked," (Romer Dep. at 141) and she could not recall the points on which Marra sought clarification. (Id. at 142.) As a general rule, "parties may not `patch-up potentially damaging deposition testimony' with a contradictory affidavit." Commercial Underwriters Ins. Co. v. Aires Envtl. Servs., Ltd., 259 F.3d 792, 799 (7th Cir. 2001) (quoting Maldonado v. U.S. Bank, 186 F.3d 759, 769 (7th Cir. 1999)); see also Piscione v. Ernst Young, L.L.P., 171 F.3d 527, 533 (7th Cir. 1999). There are exceptions to this rule when a party "offers a suitable explanation" for the contradiction, for example, confusion, mistake, or lapse in memory. Aires Envtl., 259 F.3d at 799; Piscione, 171 F.3d at 533. Romer has not offered any explanation for the inconsistency between her affidavit and deposition testimony; she therefore cannot patch up her prior deposition testimony with the contradictory statement in her affidavit. In addition, her testimony about what she would have told Marra had he asked her a more pointed question about her personal relationship is not only self-serving and lacking factual support, but also speculative. "It is well settled that conclusory allegations and self-serving affidavits, without support in the record, do not create a triable issue of fact." Hall v. Bodine Elec. Co., 276 F.3d 345, 354 (7th Cir. 2002). Thus, Defendant' objection to AMF 295 is SUSTAINED.
AMFs 259 and 296 state that during the third meeting about the Family X application, Marra asked Romer if there was anything else she felt necessary to share with him about the case, to which she replied she did not, as she had fully informed him of the professional history of the case. Romer cites to paragraph 14 of her affidavit to substantiate the assertion. Defendants object to AMFs 259 and 296, contending that in her prior deposition Romer testified she could not recall what Marra asked her during the third meeting other than telling her that "school people" thought she had a personal relationship with Family X. Page 142 of Romer's deposition, cited by Defendants, supports their objection on this ground. Romer testified unequivocally that Marra asked her one or two questions and added, "I don't remember what they were." (Romer Dep. at 142.) Because Romer has not offered any explanation for this discrepancy between her prior deposition testimony and subsequent affidavit, her deposition testimony controls in this instance. See, e.g., Aires Envtl., 259 F.3d at 799. Defendants' objections to AMFs 259 and 296 are SUSTAINED.
B. Section 1983 Claim
In order to prove a claim under Section 1983, Romer must establish that the Defendants acted under color of state law to deprive her of a right protected by the United States Constitution or other federal law. See Wudtke v. Davel, 128 F.3d 1057, 1062 (7th Cir. 1997). Romer claims Defendants terminated her employment in retaliation for her advising Family X about the laws of the State of Indiana governing special education in violation of her First Amendment rights.
A court applies a three-step analysis in deciding First Amendment retaliation claims brought under Section 1983. First, the court must decide whether the speech is constitutionally protected. If so, then the plaintiff must prove that the defendants' actions were motivated by the constitutionally protected speech. And, if the plaintiff can demonstrate that his or her constitutionally protected speech was a substantial or motivating factor in the defendants' actions, then the defendants must prove that they would have taken the same action in the absence of the plaintiff's exercise of First Amendment rights. See, e.g., Vukadinovich v. Bd. of Sch. Tr. of N. Newton Sch. Corp., No. 01-1625, 2002 WL 75883, at *5 (7th Cir. Jan. 22, 2002); Kuchenreuther v. City of Milwaukee, Wis., 221 F.3d 967, 976 (7th Cir. 2000). If the defendants carry their burden, the plaintiff must show that the defendants' proffered reasons were pretextual and that retaliation was the real reason for the challenged action. See Vukadinovich, 2002 WL 75883, at *5. In the summary judgment context, the plaintiff must show that a trier of fact could reasonably infer that the defendants' stated reasons were lies. Id. Romer cannot show this, so her First Amendment retaliation claim fails on summary judgment.
Assuming that Romer can satisfy her burden at the first two steps, Defendants can show that Romer would have been discharged even absent her exercise of her First Amendment free speech rights. They have offered evidence that Romer was discharged because she lied and was not forthcoming about her relationship with Family X. These are legitimate, nondiscriminatory reasons for her discharge. So, to withstand summary judgment, Romer must show that these reasons are pretexts for retaliation.
A plaintiff can demonstrate pretext directly or indirectly. Having no direct evidence of pretext, Romer attempts to prove pretext indirectly. She may do this by showing that the Defendants' proffered justifications were unworthy of belief. See Vukadinovich, 2002 WL 75883, at *6. She must show that 1) the justifications have no basis in fact, 2) the justifications were not the real reason for her discharge, or 3) the justifications were insufficient to warrant her discharge. Id.
Romer denies lying about her relationship with Family X. She argues that Marra did not ask her whether she had a personal relationship with Mother X until their third meeting.
Romer's position can be summed up as this: "[If i]t was not asked, it was not stated." (Romer Dep. at 138.) Thus, Romer's own deposition testimony establishes that she was not forthcoming about her relationship with Family X. The record, including the factual assertions submitted by Romer herself, conclusively establish that Romer only offered as much information as Marra could pry out of her. And this when, as stated, Romer knew that Marra would not approve of such a relationship.
Romer testified that she did not mention her relationship with Family X to Eby or Marra during their conversations about Family X's application because the relationship seemed irrelevant to her. Romer's rationale for not mentioning her personal relationship with Family X, however, is immaterial. The fact of the matter is that Romer at no time revealed her personal relationship with Mother X and Father X to Marra. And, in addition, despite her testimony that the relationship seemed irrelevant to her, Romer admits that she knew that Marra, her superior, would disapprove of such a relationship.
In an apparent effort to show pretext, Romer offers AMF 292 which asserts that Division employees often knew the agents for the schools and the parents of special needs children, but there was never any question about the officials having a personal relationship with the parents. AMF 292 cites paragraph 6 of the Romer affidavit in support.
The affidavit statement is conclusory and lacking in any factual basis. It therefore is disregarded. See, e.g., DeLoach v. Infinity Broad., 164 F.3d 398, 402 (7th Cir. 1999) ("the nonmoving party is not entitled to rely on conclusory allegations, unsupported by the record") (citation omitted)). In any event, these facts, even if true, are inconsequential.
Defendants do not claim that the termination decision was based on Romer's relationship with Family X, but rather, on her lack of candor about that relationship. Thus, that there is no ethical provision, rule or policy that prohibits a Division employee from having a relationship with a parent who seeks advice from the Division, or prevents an employee from providing information to someone they know outside the office, or requires an employee to alert anyone in the office when they have a relationship with someone who has approached them for information is irrelevant. Similarly, that it is not uncommon for teachers and others in education administration to know the parents of special education children socially and to monitor their situation is immaterial. Regina Stahl's opinion that it did not matter that Romer knew the parents is inadmissible under Rule 701 of the Federal Rules of Evidence. Even if it didn't matter, that is beside the point. None of this shows pretext. Defendants' objection to AMF 357 is SUSTAINED.
In another apparent effort to show pretext, Romer asserts in AMF 327 that Regnier, Marra and Bowman did not attempt to get Romer's side of the story when they discussed possible disciplinary action against her, but Romer does not dispute that she did not provide information about her personal relationship to Marra until their third meeting. In addition, the evidence establishes that on Romer's request, Regnier allowed Romer to submit a written response to Marra's summary of their three meetings. The assertion in AMF 327 does not raise an inference of pretext.
The court is puzzled by Romer's argument that the true motivation for her termination was financial. There is evidence that during the meeting in which they discussed the Romer's termination, Marra told Romer that she cost the school corporation money and voiced concern about how many other special education directors knew about the situation. But even if accepted as true, such evidence does not establish pretext.
Instead, it suggests that Romer was terminated not because she engaged in any protected speech, but rather, because the state and Hamilton Southeastern school corporation had to reimburse Family X for services for their daughter. Even if her speech were shown to be a motivating factor in the termination decision, Defendants have offered unrebutted evidence that they would have taken the same action because of her lack of candor to her superior, Marra.
The court finds that Romer's evidence is insufficient to show that Defendants' justifications for the decision to terminate her employment are pretexts for retaliation.
Thus, summary judgment should be granted Defendants on Romer's First Amendment retaliation claim.
An alternative basis for granting summary judgment for Defendants on Romer's First Amendment retaliation claim exists: the speech for which Romer was allegedly retaliated against is not entitled to First Amendment protection. Romer's advice to Family X was pursuant to her employment with the Division and did not constitute speech on a matter of public concern. Whether a public employee's speech is constitutionally protected is a question of law for the court, requiring application of the Connick-Pickering test. See Connick v. Myers, 461 U.S. 138, 148 n. 7 (1983); Kokkinis v. Ivkovich, 185 F.3d 840, 843 (7th Cir. 1999). Under the first step of the test, the public employee must engage in speech as a citizen on a matter of public concern. See Connick, 461 U.S. at 147-48; Michael v. St. Joseph County, 259 F.3d 842, 846 (7th Cir. 2001); Gonzalez v. City of Chicago, 239 F.3d 939, 940 (7th Cir. 2001). The court determines whether Romer's speech was on a matter of public concern based on its content, form, context, and motivation, with content the most important factor. See, e.g., Horwitz v. Bd. of Educ. of Avoca Sch. Dist. No. 37, 260 F.3d 602, 618 (7th Cir. 2001); Michael, 259 F.3d at 846.
Consideration of these factors leads to the conclusion that Romer's speech was not protected. Romer claims the advice she gave Family X was the same she would have given any member of the general public, and her duties as an Education Consultant included advising parents about alternative services, available programs, and the application process. Thus, Romer's speech to Family X was made pursuant to the duties of her job, and almost all of the advice given them was the type of information she was to provide parents as an Education Consultant. Romer spoke to Mother X and Family X in the course of her employment as an Education Consultant. Speech by a public employee in the course of her employment will rarely be speech on a matter of public concern. See Gonzalez, 239 F.3d at 942. The form, conversations with the parents of a special needs child about that child's needs, available services, and the application process; the content, advice on special education issues; and the context, pursuant to her duties as an Education Consultant, of Romer's speech all indicate that Romer did not speak as a citizen on a matter of public concern. See Gonzalez, 239 F.3d at 941. Just as in Gonzalez, there is no distinction between almost all of Romer's allegedly protected speech and the required duties of her job. That Romer may have been motivated in part as a good citizen concerned for the special education needs of Child X and her family is not determinative because her speech was within her job duties. See id.
A distinction could be drawn between Romer's job duties and her advice to Mother X about which attorney to consult in order to seek reimbursement from the school corporation and state for the costs of services for Child X. Such advice would not have been on a matter of public concern, but rather, was on a matter of purely private concern — concern only to Family X — and intended to serve only Family X's interests. That advice is therefore not entitled to First Amendment protections either. See Gonzalez, 239 F.3d at 941 ("Where speech is intended to serve a private or personal interest, it may not meet the standards for First Amendment protected speech.").
Though the Gonzalez court considered whether First Amendment protections should be afforded to writings about internal office affairs, the court's conclusion that the writings were not speech entitled to First Amendment protections is not limited by the mere fact that the "speech" was in writing or that it was about internal office affairs. The court concluded, more broadly, that speech made in the scope of a public employee's job duties generally is not entitled to First Amendment protections. Id. at 941-42. In addition, that Romer's supervisor did not give her specific instructions on what to say to Family X is no bar to the conclusion that her advice to them was given in the course of her employment and within the scope of her job duties.
Romer believes this case is more like Bonds v. Milwaukee, 207 F.3d 969 (7th Cir. 2000), cert. denied, 531 U.S. 944 (2000), but that case is distinguishable. There, the plaintiff, Bonds, a public employee spoke at a forum at his supervisor's request. The court held that even though the speech was made pursuant to the plaintiff's employment duties, because of its content, it was protected by the First Amendment. See id. at 980-81. The court explained that though Bonds "participated in the forum at Alderman Gordon's direction, Bonds articulated many independent views . . . and did not serve as a mere surrogate for Council positions. Gordon testified that Bonds spoke for himself at the forum and that Bonds's criticisms . . . went well beyond the scope of Gordon's instructions." Id. at 980. Romer maintains that she expressed her own independent views. It is apparent, however, that her "independent views" were nothing other than the information and advice that she was to give to Family X and other members of the public in her capacity as an Education Consultant. The advice and information given was shaped in part by Family X's particular needs and situation, but this is different than saying such advice and information constituted "independent views." Furthermore, in contrast with Bonds, Romer has pointed to no evidence to establish that her speech exceeded the scope of her employer's authorization. As Romer herself argues, "as part of her job directive" (Pl.'s Br. Opp'n Defs.' Mot. Summ. J. at 14) she gave out information related to special needs children to Family X, and she would have given the same information to any other parent in a similar situation.
Accordingly, the court concludes that Romer's speech for which she claims she was retaliated against by Defendants is not entitled to First Amendment protections. This is another reason why Defendants' motion for summary judgment should be granted on Romer's First Amendment retaliation claim.
C. State Law Claims
Though a district court has discretion to decline to exercise supplemental jurisdiction over state law claims upon dismissal of all federal claims, 28 U.S.C. § 1367, the court finds that in this case, it should exercise its jurisdiction and reach the merits of the state law claims as resolution of such claims is an efficient use of judicial resources and the outcome is clear. See Bilow v. Much Shelist Freed Denenberg Ament Rubenstein, P.C., Nos. 00-2467, 00-2587, 00-3098, 2001 WL 1381076, at *10 (7th Cir. 2001); Centres, Inc. v. Town of Brookfield, 148 F.3d 699, 704 (7th Cir. 1998). The state law claims fail for much of the same reason that the First Amendment claim fails.
To prove both of her state law claims, Romer must establish that Defendants intentionally interfered with a business relationship without justification. See Levee v. Beeching, 729 N.E.2d 215, 222 (Ind.Ct.App. 2000); Bradley v. Hall, 720 N.E.2d 747, 750 (Ind.Ct.App. 1999). Defendants have produced evidence that they decided to terminate Romer's employment because she lied and was not forthcoming about her relationship with Family X, and Romer has insufficient evidence to refute the evidence of her lack of candor about her personal relationship with Family X. Thus, she cannot prove an essential element of her state law claims — that the interference was without justification.
So, summary judgment should be granted Defendants on the state law claims.
V. Conclusion
For the foregoing reasons, the Defendants' motion for summary judgment will be GRANTED, and judgment will be entered in favor of Defendants and against Plaintiff.
The motion to strike the complaint and for protective order is DENIED in light of the Authorization For Release Of Records/Information of Father X and Mother X.
Judgment shall be entered accordingly.