UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

JEREMIAH PATRICK, )

)

Plaintiff )

)

vs. ) CAUSE NO. 3:14-CV-782 RLM

)

OSCAR COWEN, JR., individually and )

as Sheriff of Starke County, Indiana; )

STARKE COUNTY SHERIFF’S )

DEPARTMENT; and STARKE COUNTY )

SHERIFF’S MERIT BOARD, )

)

Defendants )

OPINION and ORDER

A hearing was held on March 2, 2016 on the defendants’ motion for

summary judgment on the claims of Jeremiah Patrick’s second amended

complaint. As presented, the parties’ arguments overlap considerably; the court

has attempted to unravel the arguments, which must be addressed under

different tests. Jeremiah Patrick claims the defendants violated his rights under

the Constitution, the Family Medical Leave Act, and Indiana law when they

deemed him to have resigned when he didn’t come back to work after his FMLA

leave expired and didn’t comply with state law requiring notice and an opportunity

to be heard. The court grants the defendants’ motion in part and denies in part:

the FMLA claims will move forward, but the other claims will not. 

Background
The following facts are not in dispute.

Jeremiah Patrick joined the Starke County Sheriff’s Department in

December 2011 and was a deputy patrolman on March 28, 2013 when Sheriff

Oscar Cowen reassigned him to a position at the Starke County jail. Mr. Patrick

refused to accept the jail assignment, told the Sheriff he was going home sick, and

left work. Based on that incident, Sheriff Cowen suspended Mr. Patrick for eight

days for disobeying a direct order. The remaining dates were in 2013 until

otherwise noted. 

On March 28, Mr. Patrick faxed a note from IU Health System Urgent Care

to the Sheriff’s Department that read, “Please excuse Jeremiah from work/school

for the following dates: 3/28 – 4/8/13. Patient may return to work/school on

4/9/13.” Those dates – March 28 to April 8 – coincide with the dates of Mr.

Patrick’s suspension.

On April 18, Mr. Patrick faxed another note from IU Health System,

signed/stamped by Byron M. Holm, M.D. stating that “Jeremiah Patrick was seen

at IU Primary Care today. Please excuse patient from work for the next two weeks

while under medical treatment.” 

On May 16, Mr. Patrick submitted paperwork to the Starke County Auditor’s

Office seeking time off under the Family Medical Leave Act. Byron Holm, M.D. of

IU Health LaPorte Physicians signed that form. On the form, Dr. Holm indicated

that Mr. Patrick’s serious medical condition commenced on April 18, 2013 and

could be expected to last for weeks. 

2
On July 1, Mr. Patrick provided a doctor’s note to the Sheriff’s Department

from IU Health LaPorte Physicians, dated June 27, stating that “Jeremiah Patrick

is unable to return to work until July 29.” 

On July 2, Sheriff Cowen wrote to Mr. Patrick telling him that Sheriff’s

Department records showed that his twelve weeks of FMLA leave would expire on

July 5; Sheriff Cowen added that Mr. Patrick should report any disagreement he

might have. 

Mr. Patrick disagreed. On July 3, he presented a letter to the Sheriff

indicating that he thought the last day of his FMLA leave was July 11 and added:

“However, as you are aware by the doctors note I sent your office on 7/1/13, I am

not able to return to work until 7/29/13.” Later the same day, Mr. Patrick

submitted a second letter to Sheriff Cowen stating that because his FMLA

paperwork had been submitted on May 16, his twelve-week FMLA leave should

end on August 8, not July 5 as the Sheriff had suggested. Mr. Patrick indicated

he wouldn’t be returning to work until July 29, a date before the end of the twelveweek period as he counted it. 

On July 16, Sheriff Cowen wrote to Mr. Patrick informing him that because

his FMLA leave had expired and he hadn’t contacted the Sheriff’s Department

during his time off, his position had been reassigned to another officer and he was

no longer employed with the Starke County Sheriff’s Department. The same day,

Mr. Patrick wrote to the Starke County Merit Board requesting a hearing with the

3
Board and the Sheriff “pursuant to Indiana Code” to discuss Sheriff Cowen’s July

16 letter. Pltf. Exh. 16.

Some time later in July (the letter isn’t dated), Mr. Patrick wrote to Sheriff

Cowen indicating that he had asked the Merit Board for a hearing about the loss

of his job, but no hearing had, as yet, been set. Mr. Patrick added: 

Please accept this letter as notice that I am currently attempting to

contact my doctor to receive clearance to return to full-active duty. At

all times it has been my full intention to return to duty for the Starke

County Sheriff’s Department; however, as you know, my doctor

currently has not released me to full-active duty until July 29, 2013,

even though it appears that my FMLA time may have expired on July

11, 2013. Providing information from my doctor indicating that I

could not return to duty until July 29, 2013 was my attempt to

provide notice to the department that I would need additional time

beyond that provided by the FMLA before returning to duty. It is my

hope to return to duty as a Starke County Sheriff’s Deputy as soon

as my doctor releases me to duty which I am confident will be prior

to July 29th.

On January 30, 2014, Mr. Patrick filed a petition for reinstatement with the

Merit Board claiming that he had been illegally terminated because the Sheriff

didn’t have the authority to unilaterally terminate his employment. On February

20, Mr. Patrick supplemented his reinstatement petition with a request for back

pay; the Merit Board scheduled a hearing on the petition for March 11. Mr. Patrick

says that before the March 11 hearing his attorney spoke with Merit Board

president Ed Troike, who told his counsel that the Merit Board wouldn’t be

granting Mr. Patrick’s petition for reinstatement or his request for back pay

“regardless of arguments to be made . . . or evidence to be presented” at the

hearing. 

4
On March 10, Mr. Patrick withdrew his petition for reinstatement and back

pay. In support, Mr. Patrick said that in light of his attorney’s conversation with

Mr. Troike, a hearing would be futile, so Mr. Patrick asked that the March 11

hearing be canceled. 

Mr. Patrick filed suit in this court on April 8, 2014. The claims of his second

amended complaint under 42 U.S.C. § 1983, filed March 27, 2015, are that the

defendants violated his procedural and substantive due process rights in violation

of the Fourteenth Amendment to the United States Constitution by terminating

his employment without filing formal disciplinary charges, giving him notice of

disciplinary charges, or conducting a disciplinary hearing (Count I). Mr. Patrick

also claims the defendants violated his procedural and substantive due process

rights by not conducting “the removal and appeals process proscribed by Indiana

Code § 36-8-10 et seq.” (Count II); violated Indiana law by breaching the parties’

contract (Count III); and violated the Family Medical Leave Act, 29 U.S.C. § 2601

et seq. (Count IV). He seeks reinstatement to his earlier position, lost wages and

benefits, compensatory damages, punitive damages from defendant Oscar Cowen

in his individual capacity, fees, and costs.

The defendants have moved for summary judgment based their arguments

that

(1) Mr. Patrick can’t recover on his federal due process claim

because (a) he effectively resigned from his position with the Sheriff’s

Department when he failed to return to work after his FMLA leave

5
ended and was therefore not entitled to a Merit Board hearing,

and/or (b) he was afforded appropriate due process that he didn’t

take advantage of, and/or (c) if he was terminated, the defendants are

entitled to qualified immunity for relying on the advice of counsel that

the discharge of an employee for failing to report to work after FMLA

leave wasn’t an issue for the Merit Board to decide; 

(2) Mr. Patrick isn’t entitled to recover on his state law due

process claim under Indiana Code § 36-8-10-11 because he effectively

resigned from his position so no procedures were due him, and/or he

didn’t take advantage of available remedies under the statute, and/or

his claim is duplicative of his breach of contract claim;

(3) Mr. Patrick’s breach of contract claim fails because deputies

don’t have contracts with the Sheriff’s Department, and/or the

defendants didn’t breach any alleged contract, and/or Mr. Patrick

didn’t suffer any damages as a result of any breach; and

(4) Mr. Patrick can’t prevail on his claim that his termination

violated FMLA – his FMLA leave ended before his separation from

employment with the Sheriff’s Department, so there was no statutory

violation.

Standard of Review

6
Summary judgment is appropriate when “the pleadings, depositions,

answers to the interrogatories, and admissions on file, together with the affidavits,

if any, show that there is no genuine issue of material fact and that the moving

party is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c). A genuine

issue of material fact exists whenever “there is sufficient evidence favoring the

nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249 (1986). In deciding whether a genuine issue of

material fact exists, “the evidence of the non-movant is to be believed, and all

justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, 477

U.S. at 255; Weigle v. SPX Corp., 729 F.3d 724, 730 (7th Cir. 2013). The existence

of an alleged factual dispute, by itself, won’t defeat a summary judgment motion;

“instead, the nonmovant must present definite, competent evidence in rebuttal,”

Parent v. Home Depot U.S.A., Inc., 694 F.3d 919, 922 (7th Cir. 2012), and “must

affirmatively demonstrate, by specific factual allegations, that there is a genuine

issue of material fact that requires trial.” Hemsworth v. Quotesmith.com, Inc., 476

F.3d 487, 490 (7th Cir. 2007); see also FED. R. CIV. P. 56(e)(2). “[S]ummary

judgment is ‘not a dress rehearsal or practice run; it is the put up or shut up

moment in a lawsuit, when a party must show what evidence it has that would

convince a trier of fact to accept its version of events.” Steen v. Myers, 486 F.3d

1017, 1022 (7th Cir. 2007)(quoting Hammel v. Eau Galle Cheese Factory, 407 F.3d

852, 859 (7th Cir. 2005)).

7
Official Capacity Claims

Mr. Patrick has named Oscar Cowen, Jr. as a defendant “individually and

in his official capacity” as Sheriff of Starke County, Indiana. Naming Sheriff Cowen

in his official capacity is the same as suing the Sheriff’s Department itself and the

Starke County Sheriff’s Department is already a named defendant in this action,

so the official capacity claims against Sheriff Cowen will be dismissed. See Burton

v. Lacy, No. 1:07-CV-918, 2008 WL 187552, at *5 (S.D. Ind. Jan. 18, 2008)

(“[N]aming the Sheriff in his official capacity is the same thing as bringing a suit

against the Sheriff’s Department.”); Hebert v. Porter County, Ind., No. 2:07-CV-91,

2007 WL 2363835, at *3 (N.D. Ind. Aug. 14, 2007) (“Hebert has also named former

Sheriff David Reynolds in his official capacity, which is equivalent to suing the

Sheriff's Department itself.”).

FMLA Violation

Mr. Patrick claims in Count 4 that the defendants violated the Family and

Medical Leave Act when they wrongfully terminated his employment before his

FMLA leave expired, an action he claims was retaliatory in nature. He also says

he was prejudiced by the defendants’ failure to provide him with the proper FMLA

notices and communicate with him about, and during, his leave.

The defendants haven’t shown themselves to be entitled to judgment as a

matter of law on this claim. 

8
The Family Medical Leave Act allows an eligible employee with a serious

health condition that renders him unable to perform his position to take twelve

workweeks of leave during each twelve-month period. 29 U.S.C. § 2612(a)(1)(D).

An employer can’t “interfere with, restrain, or deny the exercise of or the attempt

to exercise” any right under the Act, 29 U.S.C. § 2615(a)(1), and an employee on

leave is entitled to be restored to the same position or a position equivalent to the

one he had before he took qualifying leave. 29 U.S.C. § 2614(a)(1)-(2). Employers

who violate the statute are liable to the injured employee for compensatory

damages, back pay, and equitable relief. 29 U.S.C. § 2617(a).

The parties’ arguments about Mr. Patrick’s FMLA claims are based on their

agreement that Mr. Patrick was an eligible employee, 29 U.S.C. § 2611(2)(A), the

Starke County Sheriff’s Department was his employer,1 29 U.S.C. § 2611(4), and

he had a serious medical condition,2 29 U.S.C. § 2611(11). The defendants haven’t

challenged Mr. Patrick’s claim that he didn’t receive any of the notices required by

FMLA.

Submission of FMLA application

 1 Contra Indiana Code § 36-8-10-4(a) (“A county police force is established in each county. The

members are employees of the county . . . .”); Bartholomew County v. Review Bd. of Indiana Dept.

of Workforce Dev., 14 N.E.3d 806, 809 (Ind. Ct. App. 2014) (recognizing that as a merit deputy,

claimant was “employed by the county” and his discharge was “from county employment”); Starke

County Sheriff’s Department Merit Board Rules and Regulations Preamble & Section II, Rule 2-1(C)

(“Merit officers are employees of Starke County . . . .”).

 2 The statute defines “serious medical condition” as “an illness, injury, impairment, or physical

or mental condition that involves (a) inpatient care in a hospital, hospice, or residential medical

care facility; or (b) continuing treatment by a health care provider.” 29 U.S.C. 2611(11).

9
Mr. Patrick first says a material issue of fact exists as to whether the

Sheriff’s Department told him to submit his FMLA paperwork to the auditor’s

office or whether he just submitted the paperwork to the wrong entity. Regardless

of who Mr. Patrick spoke to about where to file his paperwork, the Sheriff’s

Department Merit Board Rules and Regulations, which the parties agree apply,

contain the following provisions:

7-2 General Personnel Policies of Starke County

A. The stated policies and procedures of the Starke County

Employee Handbook shall govern in all instances involving merit

employees when there is no specific statement to the contrary

contained in these Merit Rules.

* * *

C. The Starke County Employee Handbook contains specific

reference to the Family/Medical Leave of Absence (FMLOA) as

well as other policies concerning health benefits, Health

Insurance Portability and Accountability Act of 1996 (HIPAA); Cobra

Act of 1986; leaves of absence; worker’s compensation benefits, and

other important personnel matters which are applicable to both

merit and non-merit employees of the Starke County Sheriff’s

Department. Each employee (merit or non-merit) is required to

familiarize themselves with the provisions of the Starke County

Employee Handbook which contains a statement of supplemental

benefits not addressed in the Merit Board Rules and Regulations.

(Emphasis added). Mr. Patrick says the Starke County Employee Handbook

doesn’t apply to him, but the Sheriff’s Department Merit Board Rules and

Regulations direct Sheriff’s Department officers to the Starke County Employee

Handbook for information about a FMLA leave of absence. Mr. Patrick hasn’t

alleged or argued that the rules and handbook weren’t available to him.

10
Mr. Patrick submitted his FMLA application to the Starke County Auditor’s

Office, which might or might not have been the proper department to receive that

paperwork. In any event, Mr. Patrick’s request for FMLA leave was approved, so

the question of whether he submitted his paperwork to the correct or incorrect

Starke County department doesn’t create an issue of material fact.

Loss of employment as a violation of FMLA

Mr. Patrick alleges in Count 4 that the defendants wrongfully terminated his

employment before his FMLA leave expired, and that that action was retaliatory

in nature, a substantial factor in the decision to terminate him from employment,

and a violation of the FMLA. Mr. Patrick hasn’t referenced any applicable statutory

section(s), but his claims fall under 29 U.S.C. § 2615, entitled “Prohibited Acts.”

That section provides that 

(a)(1) It shall be unlawful for any employer to interfere with, restrain,

or deny the exercise of or the attempt to exercise, any right provided

under this subchapter.

(a)(2) It shall be unlawful for any employer to discharge or in any

other manner discriminate against any individual for opposing any

practice made unlawful by this subchapter.

29 U.S.C. §§ 2615(a)(1)-(2).

Because employers are prohibited from both interfering with [§ 2615(a)(1)]

and retaliating against [§ 2615(a)(2)] an employee’s use or attempted use of FMLA

leave, “[a] claim under FMLA for wrongful termination can be brought under either

a discrimination/retaliation or [an] interference/entitlement theory.” Kauffman v.

Federal Exp. Corp., 426 F.3d 880, 884 (7th Cir. 2005); see also Burnett v. LFW

11
Inc., 472 F.3d 471, 477 (7th Cir. 2006) (FMLA “contemplates [] interference and

retaliation theories of recovery”). “The difference between the two theories is that

a retaliation claim requires the employee to prove discriminatory or retaliatory

intent while an interference claim only requires the employee to prove that the

employer denied him entitlements provided by the Act.” Pagel v. TIN, Inc., 695

F.3d 622, 626 (7th Cir. 2012).

Liability of the Defendants

The provisions of 29 U.S.C. §§ 2615(a)(1) and (a)(2) prohibit certain acts by

an employer. The parties agree that the Sheriff’s Department was Mr. Patrick’s

employer. But Mr. Patrick has set forth no allegations about the status of Sheriff

Cowen or the Starke County Sheriff’s Merit Board, or the basis for their liability,

under the statute. Mr. Patrick also alleges in his FMLA claim that “the defendants”

terminated his employment in violation of the statute, and the actions of “the

defendants” were retaliatory in nature, but he doesn’t identify which defendant(s)

took what action(s). 

“When determining liability under [29 U.S.C. §§ 2615(a)(1) and (a)(2)], courts

often face the question of who is considered an employer for purposes of the

statute and, specifically, whether an individual can be held liable under the

FMLA.” Austin v. Cook County, No. 07 C 3184, 2009 WL 799488, at *3 (N.D. Ill.

Mar. 25, 2009). Mr. Patrick and the defendants have agreed that the Starke

County Sheriff’s Department was Mr. Patrick’s employer. The Starke County

Sheriff’s Merit Board might be an employer, too, but Mr. Patrick hasn’t alleged

12
that the Merit Board was his employer or that the Merit Board took any of the

actions alleged in his FMLA claim, nor has he set forth any theory that would

make the Merit Board liable to him under FMLA. Because nothing in the record

would support a finding that the Starke County Sheriff’s Merit Board was Mr.

Patrick’s employer or that the Board took the actions complained of in his FMLA

claim, the claims of Count 4 of the second amended complaint must be dismissed

as to the Starke County Sheriff’s Merit Board.

Mr. Patrick’s arguments in his response brief and at the summary judgment

hearing confirm that the actions he says violated his FMLA rights – insufficient

FMLA notice and termination of employment before the end of his FMLA leave –

were actions taken in whole or in part by Sheriff Cowen. “Although the issue of

individual liability under the FMLA has not yet been directly addressed by the

United States Supreme Court or the Seventh Circuit, courts in this district

generally agree that individuals can be held liable under the FMLA. The primary

rationale for this holding has been that the FMLA tracks word for word the

definition of employer used in the Fair Labor Standards Act, 29 U.S.C. § 203(d),

which does subject individuals to liability. A plaintiff may assert FMLA claims

against an individual who had supervisory authority over the plaintiff, and is at

least partly responsible for the alleged violation.” Baier v. Rohr-Mont Motors, Inc.,

No. 12-cv-8234, 2014 WL 6434584, at *8 (N.D. Ill. Nov. 17, 2014) (internal

quotations and citations omitted); see also Ruckebeil v. Cancer Treatment Centers

of America, Inc., No. 15 C 8259, 2016 WL 878585, at *2 (N.D. Ill. Mar. 8, 2016)

13
(“An individual may be liable under the FMLA if she had supervisory authority

over the complaining employee and was responsible in whole or part for the

alleged violation.”) (internal quotation and citation omitted); Shockley v. Stericycle,

Inc., No. 13-cv-1711, 2013 WL 5325632, at *4 (N.D. Ill. Sept. 19, 2013) (“Plaintiff

alleges Rizzo was the director of the department in which [plaintiff] worked,

likewise supporting a reasonable inference of Rizzo’s authority over plaintiff.”);

Austin v. Cook County, No. 97 C 3184, 2009 WL 799488, at *3 (N.D. Ill. Mar. 25,

2009) (individual could be held liable under FMLA based on plaintiff’s allegation

that the individual “himself suspended and discharged Austin from his

employment with the county and that the actions were the result of Austin

exercising his rights under the FMLA”). Even if a defendant doesn’t exercise

exclusive control over all the day-to-day operations of the employer, as long as he

possesses control over the aspect of employment alleged to have been violated, the

FMLA will apply to that individual. See 29 U.S.C. § 2611(4)(A)(ii)(I) (defining

“employer” as including “any person who acts, directly or indirectly, in the interest

of an employer to any of the employees of such employer”).

While the parties haven’t raised the issue of whether Sheriff Cowen could

qualify as an employer under FMLA, as Sheriff of Starke County, Oscar Cowen

controlled, in whole or in part, the terms of Mr. Patrick’s employment as a merit

deputy and Mr. Patrick’s ability to exercise his FMLA rights. See Vandewalle v.

Moffa, No. 3:07-CV-400, 2009 WL 631244, at *3 (N.D. Ind. Mar. 10, 2009)

(“Although officers employed by the sheriff’s department are employed by the

14
county, they operate under the control of the county sheriff.”); IND. CODE § 36-8-

10-4(a) (“A county police force is established in each county. The members are

employees of the county, and the sheriff of the county shall assign their duties

according to law.”). The court will treat Mr. Patrick’s FMLA claims as applicable

to Sheriff Cowen individually. See Gable v. Mack Trucks, Inc., No. 13 C 5349,

2015 WL 9582984, at *5 n.1 (N.D. Ill. Dec. 30, 2015) (“[Supervisor’s] role in

administering [employer’s] attendance policy shows that he was ‘at least partly

responsible’ for [plaintiff’s] termination and can be sued individually for his

actions.”).

Mr. Patrick’s claims for wrongful termination and lack of notice in violation

of FMLA against the Starke County Sheriff’s Department and Sheriff Oscar Cowen,

individually, will be considered under a retaliation theory and an interference

theory.

Retaliation Claim

The central issue in a FMLA retaliation claim is “whether the employer took

the adverse action because of a prohibited reason or for a legitimate

nondiscriminatory reason. . . . [T]he employer’s motive is relevant because

retaliation claims impose liability on employers that act against employees

specifically because those employees invoked their FMLA rights.” Seeger v.

Cincinnati Bell Telephone Co., LLC, 681 F.3d 274, 282 (6th Cir. 2012) (emphasis

in original; internal quotes and citation omitted). 

15
The single sentence setting forth Mr. Patrick’s retaliation claim is found in

paragraph 34 of his second amended complaint. To prevail, Mr. Patrick may

proceed under the “direct method” of proof by “proffering evidence of a retaliatory

motive” or under the “indirect method” of proof by “comparing [his] treatment to

that of a similarly situated employee.” Lewis v. School Dist. # 70, 523 F.3d 730,

741 (7th Cir. 2008). However, the defendants haven’t moved for summary

judgment on the issue of retaliation in violation of FMLA, so this claim remains

for trial. The summary judgment record wouldn’t support a finding of retaliation

– a FMLA retaliation claim requires an intent to retaliate for conduct protected by

the FMLA, not just because of bad feelings – but Mr. Patrick isn’t required to come

forth with evidence on a claim as to which summary judgment wasn’t sought. 

Interference Claim

The issue in an interference claim under the FMLA is whether the employer

denied an employee benefits to which the employee was entitled under the statute;

unlike a retaliation claim, an employer’s intent isn’t relevant in determining

whether actionable inference occurred. Scruggs v. Carrier Corp., 688 F.3d 821,

825 (7th Cir. 2012) (“An interference claim does not require an employee to prove

discriminatory intent on the part of the employer.”). Although summary judgment

isn’t being sought on the specific issue of “interference,” viewing the facts in the

light most favorable to Mr. Patrick, as the court must do at this stage of the

proceedings, his claims relating to his ultimate removal from the county payroll

are consistent with a FMLA interference claim.

16
To succeed on an interference claim, Mr. Patrick must show that (1) he was

eligible for FMLA protections; (2) his employer was covered by the statute; (3) he

was entitled to take leave; (4) he provided sufficient notice of his intent to take

leave; and (5) his employer denied him FMLA benefits to which he was entitled.

James v. Hyatt Regency Chicago, 707 F.3d 775, 780 (7th Cir. 2013). Our focus is

on the fifth element – the parties have agreed to the first three elements, and the

approval of Mr. Patrick’s FMLA leave request establishes that the fourth element

isn’t in dispute – leaving Mr. Patrick’s burden of establishing that Sheriff Cowen

and/or the Starke County Sheriff’s Department denied him the FMLA benefits to

which he was entitled.

Mr. Patrick argues that the defendants interfered with his FMLA leave by

failing to provide him with proper notice of the duration of his leave and by

terminating his employment before the end of his leave.

Duration of FMLA leave

The parties dispute the effective dates of Mr. Patrick’s FMLA leave. The

defendants say his leave began on April 18 and ended on July 11; Mr. Patrick

agreed with those dates at first, but now says the correct dates are May 16 to

August 8. 

The defendants base their position on the information contained in Mr.

Patrick’s FMLA application. The form was signed by Byron Holm, M.D. and dated

May 16. Dr. Holm (1) reported the commencement date of Mr. Patrick’s medical

condition as April 18; (2) estimated the probable duration of Mr. Patrick’s

17
condition as “weeks;” (3) indicated that he began treating Mr. Patrick for his

condition on April 18; (4) responded “yes” to the question of whether Mr. Patrick

would be “incapacitated for a single continuous period of time due to his or her

medical condition, including any time for treatment and recovery;” and (5)

estimated the beginning and ending dates for Mr. Patrick’s period of incapacity as

“4/18/13 – unknown.” According to the defendants, the April 18 date controls –

that is the date Mr. Patrick’s doctor reported as the beginning of his serious

medical condition – not May 16 when Mr. Patrick dropped off his paperwork at the

auditor’s office. 

The defendants insist the decision in Sewall v. Chicago Transit Authority,

No. 99 C 8372, 2001 WL 40802 (N.D. Ill. Jan. 16, 2001), supports their reliance

on the April 18 date. Mr. Sewall, an employee of the CTA, filed a FMLA form with

his employer on December 16, 1998 identifying November 3, 1998 as the date he

became unfit to work based on his serious medical condition. The CTA denied his

request for leave, concluding that he hadn’t been employed long enough to qualify

as an eligible employee at the time his leave commenced on November 3; when Mr.

Sewall didn’t return to work, the CTA hired someone else for his position. Mr.

Sewall filed suit based on his claim that the CTA had improperly “backdated” his

FMLA request – he says he submitted his FMLA application on December 16, so

December 16 was the proper start date for his FMLA leave, and on December 16

he was a qualified employee entitled to FMLA leave.

18
The Sewall court concluded that the CTA hadn’t backdated the FMLA

request: “the date in which Sewall’s leave would have commenced, if Sewall was

an eligible employee, would have been November 3rd. An employee is entitled to

FMLA leave at the onset of a ‘serious medical condition.’ . . . In this case that

serious health condition was Sewall’s illness that caused him to be unfit to work,

and caused him to miss work from November 3 [1998] until February 6, 1999.

There is absolutely no law supporting a finding that Sewall’s leave should have

begun, almost a full month after November 3rd, on December 2nd when [a CTA

employee] handed Sewall the FMLA application or on December 16th when Sewall

actually completed the FMLA application, six weeks into his sick leave.” 2001 WL

40802, at *5. The court found that Mr. Sewall “stated in his FMLA application,

dated December 16, 1998, that November 3, 1998 was the date in which the

condition that made him unfit to work commenced,” and no evidence in the record

supported any other date for his potential FMLA leave to begin. 2001 WL 40802,

at *6.

The defendants maintain that Sewall court’s reasoning applies in this case:

Mr. Patrick’s FMLA application reported that his serious medical condition began

on April 18, not on May 16, a month into his sick leave when he submitted his

paperwork.

Mr. Patrick claims that because he submitted the FMLA application to the

Starke County Auditor on May 16, that date – May 16 – is the proper beginning

of his twelve weeks of leave. He claims it wasn’t fair for Starke County to

19
“backdate” his leave date without telling him they were doing it, and he suffered

prejudice as a result. He concludes that May 16 should be the starting date for his

FMLA leave.

The application Mr. Patrick submitted in support of his request for FMLA

leave included his doctor’s statements that

(i) Mr. Patrick’s qualifying medical condition commenced April

18, 2013 and was expected to last weeks;

(ii) Mr. Patrick had been treated for the condition on April 18,

April 22, and May 9; and 

(iii) the beginning and ending dates for Mr. Patrick’s period of

incapacity were April 18 until “unknown;”

The conclusion of Mr. Patrick’s employer that the qualifying medical condition that

formed the basis for his FMLA leave began on April 18 didn’t constitute

“backdating” his request; Mr. Patrick’s physician certified that Mr. Patrick’s

qualifying medical condition and associated treatment began on April 18. Mr.

Patrick hasn’t alleged or argued that he had some other qualifying condition that

began on May 16; he says the start of his FMLA leave time should have started on

May 16 because that’s when he submitted his paperwork. The court can’t agree.

The court finds the Sewall decision persuasive and agrees with that court

that “[a]n employee is entitled to FMLA leave at the outset of a ‘serious medical

condition.” Sewall v. Chicago Transit Authority, 2001 WL 40802, at *5. According

to Dr. Holm, Mr. Patrick’s treating physician, Mr. Patrick’s serious medical

20
condition – an acute reaction to stress/anxiety – that caused him to be unfit to

work began on April 18, 2013. “There is absolutely no law supporting a finding

that [Mr. Patrick’s] leave should have begun, almost a full month after [April 18],

on [May 16] . . . when [he] actually completed the FMLA application, [four] weeks

into his sick leave.” 2005 WL 40802, at *5. See Ragsdale v. Wolverine World Wide,

Inc., 535 U.S. 81 (2002) (Court invalidated 29 C.F.R. § 825.700(a), which required

an employer to notify the employee of the FMLA designation in order for the leave

to begin to count against the FMLA 12-week entitlement); Haas v. Zurich North

America, No. 05 C 1421, 2006 WL 2849699, at *7 (N.D. Ill. Sept, 29, 2006) (“The

FMLA does not grant employees the right to unilaterally extend the period of

protected leave.”); Myrick v. Aramark Corp., No. 02 C 5890, 2004 WL 906176, at

*9 (N.D. Ill. Apr. 28, 2004) (rejecting plaintiff’s claim that because her FMLA leave

wasn’t officially approved until July 10, she was entitled to leave beginning that

date, rather than on April 23, when she actually began her leave: “Allowing Myrick

to delay the start of her 12 week FMLA leave merely by dragging her feet on the

completion of her certification forms is an entirely nonsensical result.”); and

Strykowski v. Rush North Shore Med. Ctr., No. 02 C 778, 2003 WL 21788987, at

*6 (N.D. Ill. July 30, 2003) (“The extension [plaintiff] asks for today would both

undermine and contravene [the] purposes [of FMLA] by allowing him to leave work

for medical reasons for nearly 28 weeks and still be afforded protection under the

FMLA as if he had only taken the 12 week statutory required period.”). The court

finds those holdings persuasive and applicable to the facts of this case.

21
The holdings of the cases cited in the preceding paragraph, together with

the facts of this case and the information supplied by Mr. Patrick’s physician in

his FMLA application, support a finding that April 18 was the date Mr. Patrick’s

qualifying condition commenced and the date his FMLA leave began. “Allowing

[Mr. Patrick] to delay the start of [his] 12 week FMLA leave merely by dragging

[his] feet on the completion of [his FMLA] forms is an entirely nonsensical result.”

Myrick v. Aramark Corp., No. 02 C 5890, 2004 WL 906176, at *9 (N.D. Ill. Apr. 28,

2004). Cf. 29 C.F.R. § 825.302 (effective date of FMLA leave for employees giving

advance notice of need for FMLA leave is the date of the reported event (surgery,

birth, treatment), not the date the FMLA request is made or application

submitted).

But that isn’t enough for the defendants to be entitled to summary

judgment. While there’s no genuine issue on the starting date of Mr. Patrick’s

leave, there is a fact issue about whether Mr. Patrick would have been terminated

(or deemed to have resigned) for not coming back to work if the defendants had

responded to Mr. Patrick’s letter indicating disagreement over the date his leave

would end. If the defendants’ undisputed failure to respond to Mr. Patrick’s letter

questioning the end date of his FMLA leave caused Mr. Patrick to not return to

work when the defendants thought he should, producing either an implicit

resignation or termination, a reasonable jury could find that the defendants

interfered with Mr. Patrick’s FMLA rights. 29 C.F.R. § 825.301(e). 

22
The parties also disagree about the validity of Merit Rule 8-8, which equates

a failure to return to work to a voluntary resignation. More will be said about this

dispute in the context of the due process arguments, but for purposes of the FMLA

interference claim, it doesn’t matter whether the defendants fired Mr. Patrick for

not coming to work or considered him to have resigned by virtue of his not coming

to work. If the defendants’ failure to communicate with Mr. Patrick after his letter

disclosed a disagreement about when the FMLA leave would end was why Mr.

Patrick didn’t show up for work – a finding a reasonable juror could make on this

record – whether he formally quit or was fired doesn’t matter. 

The defendants aren’t entitled to summary judgment on either the FMLA

retaliation claim or the FMLA interference claim. The court turns to Mr. Patrick’s

other claims, on which the defendants are entitled to judgment as a matter of law. 

Substantive Due Process

Counts 1 and 2 of Mr. Patrick’s second amended complaint contain his

broadly stated allegations that his substantive due process rights were violated.

At the hearing, counsel indicated that those claims relate to Mr. Patrick’s

protected property interest in his job, an interest for which he has more than an

abstract need. Even construing the facts of this case in the light most favorable

to Mr. Patrick, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), Mr.

Patrick can’t prevail on his substantive due process claims for a number of

reasons.

23
“[T]he scope of substantive due process is very limited.” Belcher v. Norton,

497 F.3d 742, 753 (7th Cir. 2007). Substantive due process claims are “limited to

violations of fundamental rights, and employment-related rights are not actionable

as a violation of substantive due process unless the employee also alleges the

defendants violated some other constitutional right or that state remedies were

inadequate.” Palka v. Shelton, 623 F.3d 447, 453 (7th Cir. 2010) (citations

omitted). “It is one thing to say that officials acted badly, even tortiously, but –

and this is the essential point – it is quite another to say that their actions rise to

the level of a constitutional violation.” Tun v. Whitticker, 398 F.3d 899, 902 (7th

Cir. 2005). Mr. Patrick hasn’t alleged that another constitutional violation or that

state law remedies were inadequate.3

Too, when a plaintiff claims a government entity or official has violated his

substantive due process rights, the court “must ask whether the government has

abused its power in a way that ‘shocks the conscience.’” Bratton v. Town of

Fortville, No. 1:09-cv-1391, 2010 WL 2291853, at *3 (S.D. Ind. June 2, 2010); see

also Belcher v. Norton, 497 F.3d 742, 753 (7th Cir. 2007) (“Where the exercise of

government authority involves law enforcement officials, the Supreme Court has

stated that a plaintiff’s substantive due process rights are violated where the

alleged abuse of government power ‘shocks the conscience.’”). “Under this

 3 Although Mr. Patrick entitles subsection c of his response brief “Mr. Patrick’s post-deprivation

remedies were inadequate,” Resp., at 16, his procedural due process/breach of contract claim in

Counts 1-3 is that the defendants didn’t follow the applicable statutory procedures, not that those

remedies were inadequate.

24
standard, abuse that is merely tortious or even ‘abhorrent’ does not offend

substantive due process.” Viehweg v. City of Mount Olive, 559 Fed. App’x 550, 552

(7th Cir. 2014). Mr. Patrick hasn’t pointed to evidence demonstrating that any of

the defendants’ actions “shocked the conscience.”

Lastly, “[a]s the Supreme Court pointed out in Washington v. Glucksberg,

521 U.S. 702 (1997), ‘the [Due Process] Clause . . . provides heightened protection

against government interference with certain fundamental rights and liberty

interests.’ Id. at 720. The list of such rights and interests is, however, a short one,

including things like the right to marry, the right to have children, the right to

marital privacy, the right to contraception, and the right to bodily integrity. Id.

Conspicuously missing on this list is the right to follow any particular career.”

Sung Park v. Indiana Univ. Sch. of Dentistry, 692 F.3d 828, 832 (7th Cir. 2012).

“Here, the fundamental right at issue is [Mr. Patrick’s] claimed property right in

continued employment. Employment rights, however, are state-created rights, and

a public employee’s interest in continued employment does not rise to the level of

a ‘fundamental’ right protected by substantive due process.” Palka v. Cook

County, No. 07 C 5432, 2008 WL 5263436, at *8 (N.D. Ill. Dec. 17, 2008).

The defendants are entitled to summary judgment on the substantive due

process claims in Counts 1 and 2.

14th Amendment Procedural Due Process

25
Mr. Patrick claims his procedural due process rights under the Fourteenth

Amendment were violated when the defendants terminated his employment

without filing formal disciplinary charges, providing him with notice of those

charges, and conducting a disciplinary hearing (Count 1). Mr. Patrick asserts that

the Merit Board terminated his employment in violation of his statutory and

constitutional protections.

The Fourteenth Amendment to the United States Constitution prohibits a

state from depriving a person of life, liberty, or property without due process of

law. American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999). “The first

inquiry in every due process challenge is whether the plaintiff has been deprived

of a protected interest in ‘property’ or ‘liberty.’ Only after finding the deprivation

of a protected interest do we look to see if the State’s procedures comport with due

process.” 526 U.S. at 59 (internal citations omitted); see also Cleveland Bd. of

Educ. v. Loudermill, 470 U.S. 532, 541 (1985) (“[T]he Due Process Clause provides

that certain substantive rights – life, liberty, and property – cannot be deprived

except pursuant to constitutionally adequate procedures.”).

Property Interest

To have a constitutionally protected property interest in a benefit, such as

a job, a person must have more than an abstract need, desire, or unilateral

expectation of it; he must have “a legitimate claim of entitlement to it.” Board of

Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). The Constitution

doesn’t create property interests; property interests that entitle the owner to due

26
process protections generally arise from a statute, ordinance, or contract. 408 U.S.

at 577. 

Mr. Patrick had no written employment contract, and the defendants claim

entitlement to judgment based on that fact alone. The defendants are mistaken.

Even though the parties had no written contract or collective bargaining

agreement, a “legitimate claim of entitlement by Sheriff’s deputies to their jobs”

has been recognized under Indiana Code § 36-8-10-11(a). Marion County Sheriff’s

Merit Bd. v. Peoples Broadcasting Corp., 547 N.E.2d 235, 239 (Ind. 1989); see also

McCorkle v. Henry County, No. 1:04-CV-1942, 2006 WL 1547082, at *4 (S.D. Ind.

June 1, 2006) (“The Indiana Supreme Court has held that the Merit Board statute,

Ind. Code § 36-8-10-11(a), creates a legitimate claim of entitlement by the Sheriff’s

deputies to their jobs, such that constitutional due process protections apply

when a deputy may lose his or her job.”) (citing Marion County Sheriff’s Merit Bd.

v. Peoples Broadcasting Corp., 547 N.E.2d 235, 239 (Ind. 1989)). Mr. Patrick was

deprived of his job – a property interest – so the first prong of the analysis is

satisfied.

Available Procedures

Because Mr. Patrick had a protected property interest in his job, the inquiry

turns to whether a reasonable factfinder could find that the available procedures

didn’t comport with due process. See Zinermon v. Burch, 494 U.S. 113, 126

(1990) (“[T]o determine whether a constitutional violation has occurred, it is

necessary to ask what process the State provided, and whether it was

27
constitutionally adequate.”). In Indiana, the processes governing employment

actions taken against non-probationary Sheriff’s deputies are found in Indiana

Code § 36-8-10-11. The relevant sections of the statute read as follows:

(a) The sheriff may dismiss, demote, or temporarily suspend a county

police officer for cause after preferring charges in writing and after a

fair public hearing before the [Merit] board, which is reviewable in the

circuit court. Written notice of the charges and hearing must be

delivered by certified mail to the officer to be disciplined at least

fourteen (14) days before the date set for the hearing. The officer may

be represented by counsel. The board shall make specific findings of

fact in writing to support its decision.

* * *

(e) An appeal under subsection (a) must be taken by filing in court,

within thirty (30) days after the date of the decision is rendered, a

verified complaint stating in a concise manner the general nature of

the charges against the officer, the decision of the board, and a

demand for the relief asserted by the officer. . . . The county must be

named as the sole defendant [and] [n]either the board nor the

members of it may be made parties defendant to the complaint . . . .

IND. CODE § 36-8-10-11(a), (e).

Mr. Patrick hasn’t challenged those statutory procedures as insufficient or

violative of due process. Instead, Mr. Patrick maintains the defendants wrongfully

failed to follow those procedures. “Although he has been deprived of property

under color of state law, the deprivation did not occur as a result of some

established state procedure. Indeed, the deprivation occurred as a result of the

unauthorized failure of agents of the State to follow established state procedure.”

Parratt v. Taylor, 451 U.S. 527, 543 (1981). Even if the established procedures

wouldn’t have provided Mr. Patrick with all the relief he sought, “that does not

mean that the state remedies are not adequate to satisfy the requirements of due

28
process.” Parratt v. Taylor, 451 U.S. at 544. “[A] state cannot be held to have

violated due process requirements if it has made procedural protection available.”

Hudson v. City of Chicago, No. 02 C 1129, 2003 WL 21230835, at * 10 (N.D. Ill.

May 28, 2003).

Mr. Patrick hasn’t argued or pointed to evidence supporting the proposition

that the procedures provided by Indiana law are inadequate, so he can’t prevail

on his claim in Count 1 that the defendants violated his Fourteenth Amendment

procedural due process rights. See Veterans Legal Defense Fund v. Schwartz, 330

F.3d 937, 941 (7th Cir. 2003) (“Given the availability of state remedies that have

not been shown to be inadequate, plaintiffs have no procedural due process

claim.”). 

State Law Due Process and Breach of Contract

Mr. Patrick claims the defendants’ actions – not filing formal disciplinary

charges, not providing him with notice of those charges, and not holding a

disciplinary hearing – violated the requirements of Indiana Code § 36-8-10 et seq.

(Count 2) and constituted a breach of contract (Count 3). To prevail on either

claim, Mr. Patrick must establish that he had a constitutionally protected property

interest, he was deprived of that interest, and the deprivation occurred without

due process of law. McCorkle v. Henry County, No. 1:04-CV-1942, 2006 WL

1547082, at *4 (S.D. Ind. June 1, 2006). As just discussed, Mr. Patrick can

establish the first two elements – he had a protected property interest in his job

29
and he was deprived of that interest – leaving for resolution the issue of whether

the loss of his position with the Starke County Sheriff’s Department occurred

without due process of law.

“In procedural due process claims, the deprivation by state action of a

constitutionally protected interest in ‘life, liberty, or property’ is not in itself

unconstitutional; what is unconstitutional is the deprivation of such an interest

without due process.” Brokaw v. Mercer County, 235 F.3d 1000, 1020 (7th Cir.

2000). The fundamental requirement of procedural due process is “the opportunity

to be heard . . . at a meaningful time and in a meaningful manner.” Goldberg v.

Kelly, 397 U.S. 254, 267 (1970). 

The statute governing the due process procedures at issue in this case,

Indiana Code § 36-8-10-11, provides that a sheriff “may dismiss . . . a county

police officer for cause after preferring charges in writing and after a fair public

hearing before the [Merit] board, which is reviewable in the circuit court. Written

notice of the charges and hearing must be delivered by certified mail to the officer

to be disciplined at least fourteen (14) days before the date set for the hearing. The

officer may be represented by counsel. The board shall make specific findings of

fact in writing to support its decision.” IND. CODE § 36-8-10-11(a). Mr. Patrick

claims he was deprived of due process procedures in the pre- and posttermination of his employment.

Employment Decision

30
To begin, Mr. Patrick challenges the defendants’ reliance on Starke County

Sheriff’s Merit Board Rule 8-8 as a basis for their employment decision because,

Mr. Patrick says, Rule 8-8 itself violates due process. The defendants disagree and

argue that the authority cited by Mr. Patrick is inapplicable to the rule at issue in

this case.

Rule 8-8, entitled “Absence Without Leave,” provides that

Absence from duty without leave, failure to report for duty after the

leave has expired, or when such leave has been disapproved, revoked,

or canceled by the Sheriff and Merit Board, shall be deemed as a

resignation. An employee so charged may show to the satisfaction of

the Sheriff and Merit Board that such absence or failure to report was

excusable. The Merit Board may then recommend to the Sheriff that

the officer be reinstated.

Mr. Patrick first claims the defendants’ reliance on Rule 8-8 is misplaced

because, he says, that “‘resignation’ provision is applicable to leaves of absence,

not FMLA leave.” Mr. Patrick’s claim is found in a single sentence in his response

brief, unaccompanied by further argument or support, so his claim that Rule 8-8

isn’t applicable to FMLA leave is waived. See Bass v. Joliet Public School Dist. No.

86, 746 F.3d 835, 841 n.1 (7th Cir. 2014) (“Without any further analysis or

citation to authority, we find this argument waived.”); Judge v. Quinn, 612 F.3d

537, 557 (7th Cir. 2010) (“[P]erfunctory and undeveloped arguments, and

arguments that are unsupported by pertinent authority, are waived.”).

Mr. Patrick also claims the termination of his employment under Rule 8-8

constitutes a due process violation. In support, he cites Brinson v. Sheriff’s Merit

Board of Jefferson County, 395 N.E.2d 267 (Ind. Ct. App. 1979), which involved

31
a challenge to an employment action based on a Jefferson County Police Merit

Board “resignation” rule. Due process was a key issue in Brinson, as it is here,

but the text of the Jefferson County rule in Brinson4

 is materially different from

the text of the Starke County rule at issue in this case. The Brinson court found

that Jefferson County’s “automatic resignation” rule made no reference to any due

process protections, and so violated the applicable Indiana statute, as well as the

rules and regulations of the Jefferson County Police Department, “insofar as they

provide that there shall be no discharge without a prior hearing.” 395 N.E.2d at

272. In contrast, Starke County Sheriff’s Rule 8-8 provides that an employee

found to be absent without leave “may show to the satisfaction of the Sheriff and

Merit Board that such absence or failure to report was excusable,” and the Merit

Board “may then recommend to the Sheriff that the officer be reinstated.”

Although the Starke County “resignation” rule makes no reference to a hearing,

it includes procedures that may constitute due process protections. Given the

differing texts of the two rules and the differing facts and circumstances of the two

cases, the Brinson decision doesn’t lead to a conclusion that Starke County

Sheriff’s Rule 8-8 constitutes a per se violation of due process or Indiana law. 

Pre-deprivation process

 4 The Jefferson County rule provided that an officer returning after a leave of absence must

furnish “evidence of mental and physical competence and other requirements” to the Sheriff within

30 days of the officer’s return to active duty, and “[f]ailure to furnish such evidence within 30 days

after reporting back for duty shall constitute the resignation of such candidate automatically at

12:01 a.m. on the first day following such 30 day period.” 395 N.E.2d at 269. 

32
Mr. Patrick claims he was deprived of his due process rights in the predeprivation process. Citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,

542 (1985), the defendants maintain that because Mr. Patrick resigned from his

position with the Sheriff’s Department, he was entitled to minimal due process:

an oral or written notice of the charges, an explanation of the evidence against

him, and a chance to present his side of the story. The defendants say appropriate

pre-deprivation process was given – Mr. Patrick received a letter dated July 16

explaining that he was considered to have resigned his position with the Sheriff’s

Department when he hadn’t returned to work on or before July 11; Mr. Patrick

was able to present his side of the story – he sent a letter to the Sheriff saying that

even though his FMLA leave “may have expired on July 11, 2013,” he planned to

return to work and was waiting to be released by his doctor; and Mr. Patrick wrote

to the Merit Board on July 16 reporting that he had spoken to FOP legal defense

attorneys and was requesting a hearing before the Merit Board to address his

employment situation. The defendants conclude that because Mr. Patrick had

notice of the defendants’ position, an explanation of the reasoning, and a chance

to tell his side of the story, he received sufficient pre-deprivation process. 

Mr. Patrick argues that he was denied all pre-deprivation remedies. He says

he was taken off the county payroll on July 16 without having received any prior

notice of the charges and evidence against him or an opportunity to be heard. He

says that being terminated via letter from the Sheriff, without a face-to-face

meeting, is the “antithesis of providing even the ‘root requirement’ of the due

33
process clause.” Mr. Patrick maintains the Sheriff and/or the Merit Board should

have provided him with the pre-termination rights outlined in Indiana Code § 36-

8-10-11(a). 

Mr. Patrick alleges that his job loss resulted from Sheriff Cowen’s failure to

follow the procedures outlined in the statute; he hasn’t alleged that his job loss

occurred through the failure of an established procedure. The actions he

complains of were “random and unauthorized departures from the applicable

procedures regarding [termination] hearings,” and process was “due” after the

deprivation occurred. Williams v. Pollard, No. 14-CV-148, 2015 WL 5521876, at

*2 (E.D. Wis. Sept. 18, 2015). “Because the state could not predict defendants’

failure to follow the [statutory procedures], a pre-deprivation hearing would serve

no purpose. 2015 WL 5521876, at *2; see also Germano v. Winnebago County, No.

01 C 50033, 2004 WL 1498148, at *2 (N.D. Ill. July 2, 2004) (“[H]ere, the state

could not have predicted defendant would violate the statute nor prevented the

violation through any additional procedures.”). Because post-deprivation

processes were in place for Mr. Patrick to pursue his claim that he hadn’t been

afforded sufficient process and/or that his employment was terminated in error,

he hasn’t come forth with evidence sufficient to establish a violation of his predeprivation due process rights. See Veterans Legal Defense Fund v. Schwartz, 330

F.3d 937, 939-940 (7th Cir. 2003) (“For some deprivations due process includes

a predeprivation hearing, but post-deprivation remedies are a constitutionally

acceptable substitute for predeprivation remedies in many procedural due process

34
cases.” (internal quotation and citation omitted)); Lolling v. Patterson, 966 F.2d

230, 234 (7th Cir. 1992) (“[D]eprivations of property which occur without a

predeprivation hearing do not violate due process so long as the state provides a

meaningful postdeprivation remedy.”); Williams v. Pollard, No. 14-CV-148, 2015

WL 5521876, at *3 (E.D. Wis. Sept. 18, 2015) (“[P]laintiff’s procedural due process

claim fails because defendants were required to follow the procedures set forth in

the Wisconsin Administrative Code and failed to do so and because adequate postdeprivation proceedings exist to remedy any wrongful deprivation of liberty.”).

Post-deprivation process

Mr. Patrick contends he was deprived of his due process rights in the postdeprivation process, as well. The defendants respond that the Merit Board

afforded Mr. Patrick a post-deprivation hearing that would have cured any

deficiency in the pre-deprivation process, but Mr. Patrick chose not participate in

the March 11, 2014 hearing and withdrew his request for reinstatement and back

pay. Had Mr. Patrick attended the Merit Board hearing, the defendants say, he

could have appealed any unfavorable decision to the circuit court in accordance

with Indiana Code § 36-8-10-11(e), the statute upon which he relies. 

“Under Indiana law, a claimant with an available administrative remedy

must pursue that remedy before being allowed access to the courts. If a party fails

to exhaust administrative remedies, the trial court lacks subject matter

jurisdiction. . . . Indiana Code § 36-8-10-11 governs the administrative process for

disciplinary actions taken against non-probationary county policy officers.” Lake

35
County Sheriff’s Corrections Merit Bd. v. Peron, 756 N.E.2d 1025, 1028 (Ind. Ct.

App. 2001). Thus, “even if Mr. [Patrick] had a legitimate entitlement to continued

employment under I.C. § 36-8-10-11(a), he could not bring this claim in federal

court because he did not exhaust his state remedies.” Robert v. Carter, 819 F.

Supp. 2d 832, 850 (S.D. Ind. 2011). The parties don’t dispute that Mr. Patrick

didn’t actually exhaust his administrative remedies, but Mr. Patrick maintains his

failure to exhaust should be excused because he lacked “meaningful access to

review procedures” and appearing before the Merit Board “would have been futile.”

Resp., at 18 (emphasis in original). 

Courts must “start with the general rule that parties exhaust prescribed

administrative remedies before seeking relief from the federal courts. This rule,

however, is not absolute. . . . [I]ndividual interests demand that exhaustion be

excused when

‘(1) requiring exhaustion of administrative remedies causes prejudice,

due to unreasonable delay or an indefinite timeframe for

administrative action; (2) the agency lacks the ability or competence

to resolve the issue or grant the relief requested; (3) appealing

through the administrative process would be futile because the

agency is biased or has predetermined the issue; or (4) where

substantial constitutional questions are raised.’

Gonzalez v. O’Connell, 355 F.3d 1010, 1016 (7th Cir. 2004) (quoting Iddir v. INS,

301 F.3d 492, 498 (7th Cir. 2002)). The exhaustion requirement also can be

relaxed if “administrative remedies [have] been exhausted on the same or closely

related issues.” City of East Chicago v. Copeland, 839 N.E.2d 737, 744 (Ind. Ct.

App. 2005). Mr. Patrick claims he should be excused from the exhaustion

36
requirement because the notice he received was untimely and inadequate and his

attendance at the Merit Board meeting would have been futile.

Timing of Notice

Mr. Patrick first complains he didn’t get notice of the Merit Board hearing

at least 14 days before the hearing as Indiana Code § 36-8-10-11(a) requires; he

and his counsel received notice only 34.5 hours before the hearing, and the notice

they received didn’t specifically set forth the scope of the hearing. Late receipt of

a notice of a hearing, however, isn’t one of the circumstances that might justify

excusing the exhaustion requirement.

When notice of a merit board hearing was provided only two days before the

scheduled hearing, the court concluded that “[w]hile the notice does appear to be

inadequate, [the officers] should have pursued the available administrative remedy

before seeking judicial intervention.” Lake County Sheriff’s Corrections Merit Bd.

v. Peron, 756 N.E.2d 1025, 1028 (Ind. Ct. App. 2001). That conclusion applies

equally to Mr. Patrick’s situation. Mr. Patrick and his counsel were notified of the

time and date for the hearing, and while that notice may have been tardy and/or

inadequate, Mr. Patrick had an opportunity to pursue the administrative remedies

made available to him. 

Mr. Patrick hasn’t argued or pointed to evidence that could support a

finding that he was prejudiced by the lateness of the notice, so the timing of the

notice under these circumstances doesn’t excuse the requirement that he exhaust

his administrative remedies.

37
Futility

Mr. Patrick claims that attending the merit board hearing would have been

futile because his attorney believed, based on counsel’s conversation with Merit

Board president Edward Troike, that the board would have denied Mr. Patrick’s

request for reinstatement and back pay regardless of any argument he might

make. Mr. Patrick insists that the hearing would have been a “sham or an empty

formality.” 

The parties don’t dispute that Mr. Patrick’s counsel, Andrew Duncan, and

board president Edward Troike spoke before the scheduled board hearing, but

they disagree on what was said. The parties have submitted differing versions of

the pre-hearing conversation.

Mr. Patrick’s response brief contains his counsel’s version of his telephone

conversation with Mr. Troike. According to Mr. Duncan, “Mr. Troike indicated that

the decision to terminate Mr. Patrick’s employment would not be reversed no

matter what evidence was presented or what arguments were made to the Board.

In response to a question from [Mr. Duncan] regarding whether it would be a

waste of time for he and Mr. Patrick [to] travel to Starke County for the hearing,

President Troike responded, ‘Yes, it would.’” Mr. Duncan says he believed Mr.

Troike was “the spokesperson for the Merit Board,” so “Mr. Patrick knew

appearing before the Board to dispute his termination would be futile and

therefore he declined to appear and participate in a hearing wherein the result

was pre-determined.” 

38
The defendants have submitted Mr. Troike’s deposition testimony as an

exhibit to their brief. Mr. Troike said Mr. Duncan called him before the hearing

asking about how the board would be ruling on Mr. Patrick’s request for

reinstatement and indicating that the board “needed to rule in [Mr. Patrick’s]

favor.” Mr. Troike said he told Mr. Duncan he didn’t know if the board would rule

“because we still understand as a Merit Board that it’s a county issue not a merit

issue, and we would be having the hearing, perhaps making a statement [about]

whether we think he should be, Mr. Patrick should be reinstated or not, and we

may not make a decision that evening, and at that time, if I remember right, [Mr.

Duncan] said, ‘Then we won’t have a hearing,’ or ‘[we] won’t show up.’” 

Regardless of who said what, the record contains no support for plaintiff’s

counsel belief that as “spokesperson” for the Merit Board, Mr. Troike was the sole

decision-maker. As Mr. Troike noted at his deposition, he’s only one member of

a five-person board, and Mr. Patrick hasn’t alleged that he or his counsel talked

to any of the other four board members to get their opinions of what might or

might not happen at the board meeting.

“To prevail upon a claim of futility, one must show that the administrative

agency was powerless to effect a remedy or that it would have been impossible or

fruitless and of no value under the circumstances.” M-Plan, Inc. v. Indiana

Comprehensive Health Ins. Ass’n, 809 N.E.2d 834, 840 (Ind. 2004). Mr. Patrick

hasn’t addressed those considerations; he merely complains that he believed the

board would rule against him. “[T]he mere fact that an administrative agency

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might refuse to provide the relief requested does not amount to futility.” Johnson

v. Celebration Fireworks, Inc., 829 N.E.2d 979, 984 (Ind. 2005).

A merit board hearing was scheduled to provide Mr. Patrick an opportunity

to address his employment issue, and Mr. Patrick made the choice to not attend.

The defendants can’t be held to have violated Mr. Patrick’s due process rights

when they made procedural protections available and he didn’t take advantage of

those procedures. See Palka v. Shelton, 623 F.3d 447, 453 (7th Cir. 2010) (“The

Merit Board’s disciplinary process satisfies the County’s procedural due-process

obligations, and the County and its officials cannot be held liable when an

employee chooses not to avail himself of its protections.”); Dusanek v. Hannon,

677 F.2d 538, 543 (7th Cir. 1982) (“[A] state cannot be held to have violated due

process requirements when it has made procedural protection[s] available and the

plaintiff has simply refused to avail himself of them.”). Even if Mr. Patrick had

been unsuccessful at the merit board hearing, he still had the option of pursuing

an appeal to the Starke County Circuit Court. See Johnson v. Celebration

Fireworks, Inc., 829 N.E.2d at 984 (“[R]esort to the [merit board] may [have]

produce[d] a reasoned explanation of the considerations going into the [Sheriff’s]

position. That in itself would be of value before resort to the courts to resolve such

an issue.”).

This record wouldn’t allow a reasonable trier of fact to find a violation of Mr.

Patrick’s due process rights under the laws of the State of Indiana, that the

defendants’ actions amounted to a breach of contract, or that Mr. Patrick should

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be excused from pursuing his administrative remedies under Indiana Code § 36-8-

10-11. The defendants are entitled to summary judgment on violation of state law

claims in Counts 2 and his breach of contract claim in Count 3.

Because Mr. Patrick hasn’t established that the defendants violated a

constitutional right, consideration of the defendants’ qualified immunity defense

is unnecessary.

Conclusion

The court DENIES the defendants’ motion for summary judgment [docket

# 50] with respect to the plaintiff’s FMLA interference and FMLA retaliation claims

against the Starke County Sheriff’s Department and Sheriff Oscar Cowen and

GRANTS the motion as to all other claims. 

A status conference will be scheduled following consultation with counsel

to reset the trial date.

SO ORDERED. 

ENTERED: April 13, 2016 

 /s/ Robert L. Miller, Jr. 

Robert L. Miller, Jr., Judge

United States District Court 

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