UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

TERRANCE S. MCKINNEY, )

Plaintiff, )

)

v. ) CASE NO: 1:15-cv-79-WCL-SLC

)

THE OFFICE OF THE SHERIFF OF )

WHITLEY COUNTY, INDIANA and )

TONY HELFRICH, in his official )

capacity of deputy sheriff and his )

individual capacity, )

Defendants. )

PLAINTIFF’S BRIEF IN OPPOSITION TO DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

This Brief in response, as well as the Appendix, are filed pursuant to Federal Rule of

Civil Procedure 56 and N.D. Ind. L.R. 56-1(b). The Appendix, which is separately filed

pursuant to (b)(2), includes a section labeled “Statement of Genuine Disputes” and contains the

material facts that the Plaintiff contends are related to facts that are genuinely disputed. 

II. STATEMENT OF MATERIAL FACTS

The Statement of Material Facts submitted by Defendants is supplemented as follows or

disputed as set forth in the Statement of Genuine Disputes [Appendix – separately filed]:

A. Pre-employment

McKinney never had any kind of letter military reprimand and had an outstanding

military service career. [McK. Dep. p. 21, l. 5 - p. 22, l. 5]

McKinney was the only black/African-American ever employed by the Office of Sheriff

of Whitley County (“WCSD”) as a full-time merit deputy sheriff. [McK. Aff. ¶ 5]

USDC IN/ND case 1:15-cv-00079-RLM-SLC document 30 filed 09/07/16 page 1 of 25
McKinney was hired on August 5, 2013. [McK. Dep. p. 26, ll. 9 - 11; McK. Aff. ¶ 6]

McKinney applied, interviewed and was tested for pre-employment as a full-time deputy

sheriff merit position with the WCSD during a period of months. [McK. Aff. ¶ 4]

B. Post Hiring [Facts set forth in Statement of Genuine Dispute 8 in the Appendix]

C. Lack of Training and Meaningful Law Enforcement Activities [Facts set

forth in Statement of Genuine Dispute 8]

D. Monthly Activity Reports [Facts set forth in Statement of Genuine Dispute 2]

E. Commission Vehicle Mirror Damage [Facts set forth in Statement of Genuine

Dispute 4]

F. Commission Vehicle Crash with Guardrail [Facts set forth in Statement of

Genuine Dispute 2]

G. Juveniles Transport to Court [Facts set forth in Statement of Genuine Dispute

6]

H. Texting While Driving [Facts set forth in Statement of Genuine Dispute 7]

I. Prisoners Transport [Facts set forth in Statement of Genuine Dispute 5]

J. Gasoline Credit Cards [Facts are set forth in Statement of Genuine Dispute 3]

K. Employee’s Service Record – Work Hours and Records [Facts set forth in

Statement of Genuine Dispute 1]

L. Traffic Stop [Facts set forth in Statement of Genuine Dispute10]

III. STANDARD OF REVIEW FOR SUMMARY JUDGMENT

Summary judgment may be granted only if there are no disputed genuine issues of

material fact. Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003). When ruling on a motion for

2

USDC IN/ND case 1:15-cv-00079-RLM-SLC document 30 filed 09/07/16 page 2 of 25
summary judgment, a court “may not make credibility determinations, weigh the evidence, or

decide which inferences to draw from the facts; these are jobs for a factfinder.” Id. (Citations

omitted). The only task in ruling on a motion for summary judgment is “to decide, based on the

evidence of record, whether there is any material dispute of fact that requires a trial.” Kodish v.

Oakbrook Terrance Fire Prot. Dist., 604 F.3d 490, 507 (7th Cir. 2010) (quoting Waldridge v. Am.

Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994)). If the evidence is such that a reasonable

factfinder could return a verdict in favor of the nonmoving party, summary judgment may not be

granted. Payne, 337 F.3d at 770.

A court must construe the record in the light most favorable to the nonmoving party and

avoid “the temptation to decide which party’s version of the facts is more likely true,” as

“summary judgment cannot be used to resolve swearing contests between litigants.” Id.

However, “a party opposing summary judgment may not rest on the pleadings, but must

affirmatively demonstrate that there is a genuine issue of material fact for trial.” Id. At 771.

More pointedly, the burden is not on the party moving for summary judgment “to

produce evidence showing the absence of a genuine issue of material fact, even with respect to

an issue on which the nonmoving party bears the burden of proof.” Celotex Corp. v. Catrett, 477

U.S. 317, 325 (1986). Rather “the burden on the moving party may be discharged by ‘showing’–

that is, pointing out to the district court–that there is an absence of evidence to support the

nonmoving party’s case.” Id. In fact, “district courts are widely acknowledged to possess the

power to enter summary judgments sua sponte, so long as the losing party was on notice that

[her] had to come forward with all of [his] evidence.” Id. (Citations omitted); accord Jones v.

Union Pacific Co., 302 F.3d 735, 740 (7th Cir. 2002).

3

USDC IN/ND case 1:15-cv-00079-RLM-SLC document 30 filed 09/07/16 page 3 of 25
IV. DISCUSSION

I. PLAINTIFF’S EMPLOYMENT CLAIMS

A. RACIAL DISCRIMINATION

1. Stated reasons for termination

Under the date of May 15, 2014 was a communication from the Office of the Sheriff of

Whitley County detailing discharge from employment of McKinney (“Termination Notice”). 

This Termination Notice listed only three reasons for dismissal: (1) Submitting false work hours

while attending the Indiana Law Enforcement Academy; (2) Violation of SOP Administration

07: Written or Verbal Orders, Directive and Policies; and (3) Violation of SOP Administration

20: Use of Gasoline Credit Cards. In a letter dated May 19, 2014 the Whitley County Board of

Commissioners informed McKinney of the termination of his employment effective May 16,

2014 (“Letter”). This Letter lists five performance issues including the three set forth in the

Termination Notice from Sheriff Hodges to McKinney and adds two Performance Correction

Notices. It is unclear why the Whitley County Board of Commissioners added two more issues

when these were remote in time and were verbal and written warnings. The inconsistency

between the Termination Notice and the Letter is unexplainable. In any event, it does appear

that the Sheriff Hodges’ termination recommendation, who is claiming that he fired McKinney

[Defendants’ Brief, p. 3], should be the governing document. However, all five issues are

addressed below as well as two others never mentioned as a basis of termination.

We respect to Plaintiff’s employment claim, as set forth in Defendants’ Memorandum, p.

1, Sheriff Hodges, at the sole discretion to terminate his employment without approval of the

Merit Board [Memorandum, p. 1], terminated his employment [Memorandum, p. 3: Hodges Aff.

4

USDC IN/ND case 1:15-cv-00079-RLM-SLC document 30 filed 09/07/16 page 4 of 25
par. 10]. Sheriff Hodges termination decision was based upon “Plaintiff had multiple issues

during his probationary period which lead to the Sheriff’s decision to terminate his

employment.” [Hodges Aff. par. 4] The statement expressly relies upon the cumulative effect

of the three stated issues and not one alone.

Thus, while Sheriff Hodges claims exclusivity with McKinney’s termination decision,

the following are only “facts” stated in the Defendants’ Memorandum at page 2 to support the

three Termination Notice reasons.

“Finally, while attending the Indiana Law Enforcement Academy, he did not

turn in his monthly report as required by the Whitley County Sheriff’s

Department SOPs, reported his time at the academy incorrectly and failed to

fuel up at the county fueling station during his weekends home as required

by the SOPs and instead used his county credit card.” [Hodges Aff. par. 9] 

The Defendants can only rely on all of these three issues in combination set forth in the

Termination Notice as the basis for McKinney’s firing.

No. 1. SUBMITTING FALSE WORK HOURS WHILE ATTENDING THE INDIANA

LAW ENFORCEMENT ACADEMY

The only specific, factual reference made in Defendants’ Memorandum at page 2 was “... 

reported his time at the Academy incorrectly ...”

As far as the Employee’s Service Record (“ESR”), also referred to as time sheets, the

entries and the information are to be completed by the deputy only. There is no SOP for that

other than the Whitley County Government Policy Manual 3.6 prohibiting Chief Deputy Gatton

from filling out McKinney’s work hours on his ESR – but he admittedly did so. This raises the

simple question – Why is McKinney terminated for something Chief Deputy Gatton did?

With respect to SOP for policies and calculation of compensable and non-compensable

time while attending ILEA, there is no SOP. 

5

USDC IN/ND case 1:15-cv-00079-RLM-SLC document 30 filed 09/07/16 page 5 of 25
McKinney would email his hours to Chief Deputy Gatton who would fill out the time

sheet. So, according to Policy 3.6, Gatton was recording time of another employee’s time record

which is in violation of the policy.

The WCSD’s Answers to Plaintiff’s Interrogatory No. 12 that the sole person who filled

out the time entries on the ESR, including those of McKinney, was Chief Deputy Gatton and not

McKinney. 

The WCSD’s Answers to Plaintiff’s Interrogatory No. 13:

“INTERROGATORY NO. 13: Identify the Standard Operating Procedure

(“SOP”) which determines the policies and calculations of compensable and noncompensable time while an officer of the Defendant attends the ILEA within the

last four (4) years.

ANSWER: There is no Standard Operating Procedure regarding the policies and

calculation of compensable and non-compensable time while an officer attends

the ILEA.”

Chief Deputy Gatton authorized McKinney time reporting of 10 hours per day. 

McKinney also sought advice on how to properly fill out the ESR from Michelle Jones,

Administrative Assistant to the Sheriff, and Sheriff Hodges and followed such. 

No. 2. VIOLATION OF SOP ADMINISTRATION 07: WRITTEN OR VERBAL

ORDERS, DIRECTIVE AND POLICIES

The only specific factual reference made in Defendants’ Memorandum at page 2 was “...

while the Plaintiff was at the Indiana Law Enforcement Academy, he did not turn in his monthly

report as required by the Whitley County Sheriff’s Departments SOPs ...”

WCSD Answer to Interrogatory No. 15 indicates there is no order, directive or policy

directly requiring the submission of Monthly Activity Reports. It says it is a procedure taught

officers during training and, apparently, when it refers to “this activity,” it is referring to ILEA

6

USDC IN/ND case 1:15-cv-00079-RLM-SLC document 30 filed 09/07/16 page 6 of 25
states it would be in respect to when not at ILEA. 

The Answers to Plaintiff’s Interrogatory No. 15 indicates:

“INTERROGATORY NO. 15: Identify the SOP that governs the filling out and

completion of a monthly activities report of each officer of the Defendant while

attending the ILEA within the last four (4) years and identify each person who

made entries, filled out/completed such monthly activities report of the Plaintiff.

ANSWER: There is no SOP that governs this activity; rather, it is a procedure

taught to officers during training.”

McKinney was never informed at any time until four days before his termination and

while attending the ILEA that monthly activity reports were required. Upon being informed of

such, McKinney took the monthly activity report form available, filled out the sole missing

report and within less than an hour communicated it to WCSD. The activity forms contained

nothing of any substance because McKinney is in ILEA ten hours a day receiving classroom

instruction or commuting to the ILEA. There was only one missing monthly activity report due.

No. 3. VIOLATION OF SOP ADMINISTRATION 20: USE OF GASOLINE CREDIT

CARDS

The only specific factual reference made in Defendants’ Memorandum at page 2 was “...

failed to fuel up at the County fueling station during his weekends home as required by the SOPs

and instead used his County credit card.”

WCSD issued gasoline credit cards were to be used other than at the fueling facility at

Whitley County on weekends. McKinney was trained to always sign the receipt. Many of the

copies of gasoline credit card receipts produced by the Defendants were not signed by the other

deputies. The important point is, if you look at the gasoline station that was used, many of them

are in Plainfield which would be an indication that they were used by other deputies not at the

WCSD fueling facility or on weekends and would have been used, as did the Plaintiff at a gas

7

USDC IN/ND case 1:15-cv-00079-RLM-SLC document 30 filed 09/07/16 page 7 of 25
station near the ILEA. Such other officers suffered no adverse employment action. 

Standard Operating Procedure Administration, No. 20, III, A, 3: “Gasoline credit cards

shall be used only for purchases of gas and oil without prior approval from the Sheriff or Chief

Deputy.” What it clearly states is a deputy can use it for purchases of gas and oil without prior

approval and not just at the WCSD fueling facility. If you look at the language, subparagraphs 2

and 3 are not connected with an “and” so, therefore, they are in the alternative. In other words,

you could fuel a commission vehicle at the county fueling facility or you could do an actual

“arm’s length purchase” with a retailer resulting in a cash transfer for gas and oil without prior

approval of the Sheriff. There was no violation because that is exactly what McKinney did. 

Also, it was impossible not to use the Defendants’ gas credit cards while at ILEA.

No. 4. PERFORMANCE CORRECTION NOTICE DATED 10/14/2013 – VERBAL

WARNING – DAMAGE TO COMPANY VEHICLE

SOP Administration No. 15 clarifies some issues as to reporting damage to company

property but does not delineate a time frame or other procedures that the Plaintiff failed to meet.

There were two damages to company vehicles. The February 9, 2014, slipping on the

slush and sideswiping the guardrail was reported appropriately by McKinney. It was not the

subject of a verbal warning and it was not on Travelers Insurance Detail Loss Report. This

incident is not factually supported in the Memorandum of the Defendants. 

The other was the mirror incident in response to a deputy emergency call. McKinney

reported directly to the WCSD facility with the parts. A report was in Sheriff Hodges’ box

within 15 minutes with pictures. Sergeant Cory Patrick and Chief Deputy Gatton warned

Plaintiff that he should have called first for onsite accident investigation per the SOP. But, no

onsite investigation was needed because of the deputy emergency. The Standard Operating

8

USDC IN/ND case 1:15-cv-00079-RLM-SLC document 30 filed 09/07/16 page 8 of 25
Procedure Enforcement 06 – Crashes Involving Department Vehicles III B. 1. a. states the

follow: “All such crashes shall be investigated at the scene, as soon as possible, unless an

emergency or other justifiable reason causes a delay.” 

By comparison, Deputy Kory Bailey did $5,000 of damage to his company vehicle –

received no warning and was given the torn off bumper at the Sheriff’s Christmas party. 

Thus, McKinney met the SOP timeliness requirement and neither of these incidents were

serious enough to be reported to Travelers Insurance for their Detail Loss Report.

No. 5. PERFORMANCE CORRECTION NOTICE DATED 12/20/2013 –

WRITTEN WARNING – FAILURE TO COMPLETE A TRANSPORT

AND FOLLOW VERBAL INSTRUCTIONS

There were two prisoner transports done by McKinney on December 20, 2013. One was

from Westville and one was from Plainfield. The No. 5 reason in the Letter was failure to

complete a transport and failure to following instructions. McKinney had no formal training in

transport although he had performed some. One of the prisoners was a violent offender, the

other was not. McKinney was the only deputy in the car so he would have had to control two

prisoners that were not separated in the backseat. Thus, he brought one from Westville to the

WCSD facility then proceeded to Plainfield and brought the other one back.

Chief Deputy Gatton was talking to McKinney the night before the transport and was

explaining directions how to get to Westville and he never specifically told McKinney this is

what to do on the next transport. Transporting two prisoners at one time was never specifically

stated when McKinney talked to dispatch during the first transport. The specific written orders,

consistent with dispatcher’s instructions, indicate exactly what McKinney was to do – which he

did.

9

USDC IN/ND case 1:15-cv-00079-RLM-SLC document 30 filed 09/07/16 page 9 of 25
The two-prisoner transport is covered in SOP Enforcement No. 15, subsection G. Under

optimal conditions, only one prisoner shall be transported under the supervision of one officer,

which McKinney followed.

The two other issues raised by the Defendants in their Memorandum are reviewed later in

this Brief.

2. Prima facie and incidences of discrimination

Defendants correctly state in their Memorandum at page 8 the following:

“Under the burden-shifting analysis set forth in McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), a plaintiff must first

establish a prima facie case of discrimination by demonstrating that (1) he is a

member of a protected class; (2) he met his employer’s legitimate job

expectations; (3) he suffered an adverse employment action; and (4) similarly

situated employees outside of the protected class received more favorable

treatment. Keeton v. Morningstar, Inc., 667 F.3d 877, 885 (7th Cir. 2012).”

It is presumed and the Defendants have not argued that McKinney did not demonstrate

that he was a member of the protected class or that he suffered adverse employment action. The

Defendants focus on whether or not McKinney was meeting his employer’s legitimate job

expectations and whether similarly situated employees outside the protected class received more

favorable treatment. 

The Defendants proceed in their Statement of Undisputed Material Facts to present facts

related to four issues other than those in the Termination Notice involving McKinney violating

standard operating procedures and being given a warning [Hodges Aff. par. 5]. These were

presented presumably to support that McKinney was not meeting his employer’s legitimate

expectations. The first issue relates to the Plaintiff having two chargeable accidents with his

commission vehicle. The first involved the minor mirror damage which was reported as required

10

USDC IN/ND case 1:15-cv-00079-RLM-SLC document 30 filed 09/07/16 page 10 of 25
by standard operating procedures when McKinney drove the vehicle to the WCSD station. The

Plaintiff was given a verbal warning for failing to timely report this accident [Hodges Aff. par.

5]. This incident took place at least six months before termination. The second issue relates to

the incident wherein the “Plaintiff was late taking juveniles to court for an appearance.” 

[Hodges Aff. par. 6] The third issue was December 10, 2013 when a “fellow officer reported

that she observed Plaintiff texting while driving on a transport.” [Hodges Aff. par. 7] The fourth

issue was December of 2013 with respect to prisoner transports involving Westville correctional

facility and Plainfield correctional facility and it states, “He then made the transport from

Westville but never went to Plainfield.” “He did not contact anyone with the Sheriff’s

Department and obtain permission to disregard the transport order. The Plaintiff was given a

written warning for this.” [Hodges Aff. par. 8]

Decisional authority allows direct evidence of intentional discrimination. McDonnellDouglas Corp. v. Green, 411 U.S. 792 (1973). McKinney in the Statement of Genuine Disputes

has presented at length in Dispute 9 what a reasonable trier of fact could determine includes

direct evidence supporting racial discrimination. Even if this Court does not deem the recitation

of over 15 incidences to be direct evidence of racial discrimination, the evidence morphs into a

support of circumstantial evidence involving the convincing mosaic analysis. This body of

decisional authority is analyzed as follows:

“Plaintiff submits a new argument to this Court that ‘a plaintiff may also establish

a Title VII claim by showing a convincing “mosaic” of circumstantial evidence

such that a reasonable jury could infer discriminatory intent.’” Giraldo v. City of

Columbia, 47 F.Supp.3d 430, 433 (D.C. S.C. 2014)

“Hobgood v. Ill. Gaming Bd., 731 F.3d, 635, 643 (7th Cir.2013) for the mosaic

theory analysis. In Hobgood, the Seventh Circuit explained

11

USDC IN/ND case 1:15-cv-00079-RLM-SLC document 30 filed 09/07/16 page 11 of 25
[n]o single piece of evidence might amount to a smoking gun ...

but the convincing mosaic approach allows a plaintiff to establish

retaliation “by assembling a number of pieces of evidence none

meaningful in itself, consistent with the proposition of statistical

theory that a number of observations each of which supports a

proposition only weakly can, when taken as a whole, provide

strong support if all points in the same direction”.

731 F.3d at 647. It appears that the mosaic theory was established in the Seventh

Circuit over twenty years ago; therefore, it is firmly established precedent within

the Seventh Circuit.”

Troupe v. May Dept. Stores Co., 20 F.3d 734 (7th Cir. 1994) – pregnancy discrimination

case.

“Three types of circumstantial evidence of intentional discrimination can be

distinguished.”

“... with the first kind of circumstantial evidence, the kind that consists of

ambiguous statements, suspicious timing, discrimination against other employees,

and other pieces of evidence none conclusive in itself but together composing a

convincing mosaic of discrimination against the plaintiff.”

“For it is not true that to get over the hurdle of summary judgment a plaintiff must

produce the equivalent of an admission of guilt by the defendant. All that is

required is evidence from which a rational trier of fact could reasonably infer that

the defendant had fired the plaintiff because the latter was a member of a

protected class.”

The conclusion should be that all the reasons set forth by Sheriff Hodges are baseless as

discussed in the following decision.

Stewart v. Henderson, 207 F.3d 374. 376 (7th Cir. 2000) – Title VII race case.

“... through indirect evidence, which can be accomplished by establishing that the

reasons given by the employer are factually baseless, were not the actual

motivation for the decision, or were insufficient to motivate the decision.”

[emphasis added]

McKinney contends there is sufficient circumstantial evidence of intentional

discrimination. He outlines in this Brief, as well as in the Statement of Genuine Disputes Issue

12

USDC IN/ND case 1:15-cv-00079-RLM-SLC document 30 filed 09/07/16 page 12 of 25
9, sufficient facts to support his early suspicious during his tenure of employment. The “black

coffee” comment by Deputy Schmidt. The refusal to be trained in any meaningful manner. The

warehousing of McKinney at the WCSD office and in dispatch and not on the road riding with

other officers and performing normal deputy tasks. Deputy Bailey being treated differently with

respect to vehicular damage to his commission vehicle. While on duty and in patrol being

required to hang out at a deputy’s house and attend fish fries and watch basketball games. The

no conversation treatment by Sergeant Patrick. Prolonging the delay for his attendance to

ILEA. Being counseled for failure to get two juveniles to court on time when he was given

improper information. Texting while driving when he was not texting and driving but entering

in a password to get the GPS to get his assigned location. Failure to follow orders with respect

to the transport of two prisoners from Westville and Plainfield when McKinney explicitly

followed the dispatcher’s direction and the two written, transport orders require exactly what

McKinney did. In addition, the stated reasons tendered by the Termination Notice and the

Letter, all of which were false and baseless.

The analysis as follows appears to defer to the factfinder to do the ultimate factual

inquiry and not the Court on summary judgment.

Hill v. Tangherlini, 725 F.3d 965, 967 (7th Cir. 2013) – Title VII case based upon

discrimination by race and retaliation.

“The court stated that Hill was not meeting GSA’s legitimate expectations

because he had engaged in a pattern of behavior that led three different coworkers

to report him to their supervisors, and that the white female intern was not a

suitable comparator because only one coworker had ever complained about her

behavior.”

Turgeon v. Premark Intern., Inc., 87 F.3d 218, 221 (7th Cir. 1996) – sex discrimination

13

USDC IN/ND case 1:15-cv-00079-RLM-SLC document 30 filed 09/07/16 page 13 of 25
and retaliation case.

“Under the McDonnell Douglas framework, ‘[e]ven if the reasons proffered are

eventually found by the trier of fact not to be the real reasons for the adverse

treatment, to prevail the plaintiff must still carry his ultimate burden of

persuasion–to prove by a preponderance of the evidence that an illegal motive

was at work.’”

“However, under any scenario, ‘[w]hether the defendant intentionally

discriminated against the plaintiff is, of course, the ultimate factual inquiry in a

Title VII case.’”

Much emphasis is placed by the Defendants on the fact that Sheriff Hodges hired and

fired McKinney at their Memorandum page 12. This appears not to be strongly supported by the

facts. Sheriff Hodges had virtually little information about McKinney. McKinney was always

being observed by and reporting to Sergeant Patrick and Chief Deputy Gatton. Those were the

two employees of WCSD that had all the information on McKinney and presumably fed it to

Sheriff Hodges as he was trying to justify the Termination Notice. 

However, the case law states relating to Our Lady of Resurrection Med. Ctr. that the

same actor theory in some circumstances may help to convince a jury that Defendants proffered

legitimate reasons for its decision are worthy of belief, it is the province of the jury rather than

the Court, however, to determine whether the inference generated by the same actor evidence is

strong enough to outweigh Plaintiff’s evidence of pretext. This seems to be a clear direction

that, again, these kind of analyses and decisions are to be left to the jury. McKinney has strongly

presented the fact that Sheriff Hodges really wasn’t the person driving the decision. Sheriff

Hodges was in the last seven months of his tenure as Sheriff. Chief Deputy Gatton had already

been elected and was ready to take office. Thus, cleaning the WCSD of McKinney would

clearly have been motivated by Chief Deputy Gatton and not Sheriff Hodges. 

14

USDC IN/ND case 1:15-cv-00079-RLM-SLC document 30 filed 09/07/16 page 14 of 25
The unity of the hirer/firer actor is left to the jury to weigh. This is set forth in Williams

v. Vitro Services Corp., 144 F.3d 1438, 1442 (11th Cir. 1998) – age discrimination case.

“Vitro, however, urges that we presume a lack of discriminatory motive in this

case based on the fact that the same actor was involved in the decision to hire,

promote, and terminate Williams.”

“Every other circuit to have reached this question has determined that, where the

facts indicate that the same individual both hired and fired an employee, an

inference may arise that the employers’ stated justification for terminating the

employee is not pretextual.”

“E.E.O.C. v. Our Lady of Resurrection Med. Ctr., 77 F3d 145, 152 (7th Cir. 1996)

(‘If Boettcher wished to discrimination against Braddy because of her race, she

could have refused to hire here in the first place, or she could have discharged

here because of her deficient qualifications. Boettcher did neither.... The same

hirer/firer inference has strong presumptive value.’) But see Waldron v. SL

Industries, Inc., 56 F.3d 491, 496 n. 6 (3rd Cir.1995) (‘[W]here ... the hirer and

firer are the same and the discharge occurred soon after the plaintiff was hired,

the defendant may of course argue to the factfinder that it should not find

discrimination. But this is simply evidence like any other and should not be

accorded any presumptive value.’).”

“Evidence that the same actor both hired and fired the plaintiff, in some

circumstances, may help to convince a jury that the defendant’s proffered

legitimate reasons for its decision are worthy of belief; it is the province of the

jury rather than the court, however, to determine whether the inference generated

by ‘same actor’ evidence is strong enough to outweigh a plaintiff’s evidence of

pretext.” [emphasis added]

The influence of Chief Deputy Gatton and Sergeant Patrick, both of which had all the

information being used by Sheriff Hodges, is put in the proper perspective as follows. The

following decisional authority illustrates this theory of who the real decision makers are.

“Although statements by a nondecisionmaker ordinarily do not satisfy a plaintiff’s

burden of proof in an employment retaliation case, this court has recognized that

‘if a manager with a retaliatory motive is involved in the [employment] decision

..., that retaliatory motive, in some circumstances, may be imputed to the

company, even if the manager with a retaliatory motive was not the ultimate

decisionmaker.’”

15

USDC IN/ND case 1:15-cv-00079-RLM-SLC document 30 filed 09/07/16 page 15 of 25
“Specifically, we have stated that the retaliatory motive of a ‘nondecisionmaker’

may be imputed to the company where the ‘nondecisionmaker’ influenced the

employment decision by concealing relevant information from, or feeding false

information to, the ultimate decisionmaker. ‘In such a case, the [retaliatory]

motive of the other employee, not the autonomous judgment of the

nondiscriminating decision-maker, is the real cause of the adverse employment

action.’” David v. Caterpillar, Inc., 324 F.3d 851, 860 (7th Cir. 2003)

3. Meeting employer’s reasonable expectations

The Defendants cannot use the three reasons set forth in the Termination Notice as also

showing McKinney was not meeting his employer’s reasonable expectations. The thrust of the

burden-shifting method is to get past the prima facie case requirements to determine whether of

not the proffered reasons by the employer are reasonable and without pretext, embraces Judge

Diane Woods’ analysis of collapsing all three steps into one global inquiry. If, the Court was

commanded to equate the proffered termination reasons with the Plaintiff did not meet the

reasonable expectations of his employer without further inquiry, such would make every burdenshifting case a winner for the employer. Thus, logically it makes no sense to give unfettered

credence to factor 3 in the prima facie case and not inquire further as to the “reasonable”

expectations of the WCSD, yet give it a double emphasis in step 2 and step 3 of the burden

shifting analysis. McKinney has shown the four other issues raised by Sheriff Hodges as being

used as basis for McKinney not reaching the employer’s reasonable expectations – are not

legitimate or even remotely factually true and, thus, the Court should move on to step 2 and step

3.

4. Similarly situated employees

The fourth factor of the prima facie case involves similarly situated employees being

more favorably treated. McKinney has cited at least five to ten examples of white deputies

16

USDC IN/ND case 1:15-cv-00079-RLM-SLC document 30 filed 09/07/16 page 16 of 25
having more severe violations of the policy manual, as well as the SOPs, and each one of them

has remained employed by WCSD. See Appendix Ex. 12.

5. Pretext

Wade v. Lerner New York, Inc., 243 F.3d 319, 323 (7th Cir. 2001) – age discrimination

case.

“A plaintiff can establish pretext ‘directly with evidence that [an] employer was

more likely than not motivated by a discriminatory reason, or indirectly by

evidence that the employer’s explanation is not credible.’”

“Lerner’s stated reason for disciplining her is merely a pretext for discrimination

by showing that Lerner’s reason is: (1) factually baseless; (2) not the actual

motivation for the discipline; or that it is (3) insufficient to motivate the

discipline.”

“‘It is not sufficient for the employee to show that his employer fired him for

incorrect or poorly considered reasons. He must establish that the employer did

not honestly believe the reasons it gave for terminating him.’”

Millbrook v. IBP, Inc., 280 F.3d 1169, 1174 (7th Cir. 2002) – Title VII case based upon

race.

“... defendant’s proffered reason for its employment decision was false, i.e.,

pretextual, that is ‘one form of circumstantial evidence that is probative of

intentional discrimination, and it may be quite persuasive.’ But ‘[i]t is not enough

to disbelieve the employer; the factfinder must believe the plaintiff’;s explanation

of international discrimination.’”

“Pretext ‘means a lie, specifically a phony reason for some action.’ 

“‘Pretext for discrimination’ means more than an unusual act; it means something

worse than a business error; ‘pretext’ means deceit used to cover one’s tracks.”

McKinney has set forth numerous examples that would support pretext with respect to

the Defendants’ explanation for the combination of all three issues set forth in the Termination

Notice. There are actually direct contradictory statements set forth in each Issue of Genuine

Disputes that show allegedly failing actions solely done by Chief Deputy Gatton instead of

17

USDC IN/ND case 1:15-cv-00079-RLM-SLC document 30 filed 09/07/16 page 17 of 25
McKinney and the bald statement that there was a standard operating procedure for the activity

and the Answers to Interrogatories as stated under oath shows there is no SOP. Every incident

shows McKinney following the SOPs, instructions and protocol and Sheriff Hodges’ Affidavit

stating something completely opposite. 

B. RETALIATION

Giraldo, p. 432 – a case based on retaliation under Title VII and discrimination and

retaliation of the FMLA sets forth the basic requirements.

“To establish a prima facie case of retaliation under Title VII, a plaintiff must

show (1) she engaged in protected activity, (2) the employer took adverse

employment action against her, and (3) a causal connection existed between the

protected activity and the adverse action.”

“Because credibility determinations are often crucial in retaliation suits, we are

particularly careful in such cases ‘to avoid supplanting our view of the credibility

or weight of the evidence for that of both the jury (in its verdict) and in the judge

(in not interfering with the verdict).’”

Carlson v. CSX Transp., Inc., 758 F.3d 819, 824 (7th Cir. 2014) – sex discrimination and

retaliation claims under Title VII clears up any of Defendants’ claims to remoteness.

“Her retaliation claims relating to those positions, the court said, were implausible

because of the amount of time that had passed (several months) between any

protected activity and the denial decisions.” David, p. 858

“But no bright-line timing rule can be used to decide whether a retaliation claim is

plausible or whether it should go to a jury. Other factors can always be relevant. 

‘A mechanistically applied time frame would ill serve our obligation to be faithful

to the legislative purpose of Title VII. The facts and circumstances of each case

necessarily must be evaluated to determine whether an interval is too long to

permit a jury to determine rationally that an adverse employment action is linked

to an employee’s earlier complaint.’” Id., p. 829

“In this case, Carlson has alleged that the resolution of her 2007 lawsuit in 2009

sparked animosity right away and that all of her attempts to advance at CSX since

then have been thwarted. She has described an ongoing campaign of retaliation,

and her claims must be viewed through that lens.”

18

USDC IN/ND case 1:15-cv-00079-RLM-SLC document 30 filed 09/07/16 page 18 of 25
“(affirming jury verdict for plaintiff on retaliation claim because, despite over

four-year gap between grievance and termination, termination ‘was the end result

of an ongoing pattern of retaliatory behavior.’”

“(affirming jury verdict for plaintiff on retaliation claim because ‘a plaintiff can

establish a link between his or her protected behavior and subsequent discharge if

the employer engaged in a pattern of antagonism in the intervening period,’ even

if the intervening period spanned year).”

“And the very complexity of the dance between the interdependent steps of

the indirect proof method supports Chief Judge Wood’s suggestion in her

concurrence in Coleman that it is time to collapse the different methods of

proof into one test; whether a rational jury could find that the employer took

action against the plaintiff for an unlawful reason.” Id., p. 830 [emphasis

added]

1. McKinney is afforded a broad range of protections from unlawful employer

conduct.

As stated in Porter v. City of Chicago, 700 F.3d 944, 956 (7th Cir. 2012), the general

policy is explained as follows:

“The purpose of this antiretaliation provision is to ‘prevent employer interference

with “unfettered access” to Title VII’s remedial mechanisms ... by prohibiting

employer actions that are likely “to deter victims of discrimination from

complaining to the EEOC,” the courts, and their employers.’”

“Because of this purpose and the textual distinction between the antiretaliation

provision and the antidiscrimination provision, the Supreme Court has held that

‘Title VII’s antiretaliation provision must be construed to cover a broad range of

employer conduct ... and [it] is not limited to discriminatory actions that affect the

terms and conditions of employment.’”

“Under this broad construction of the antiretaliation provision, the pertinent

inquiry is whether an employer has acted in a way that ‘well might have

dissuaded a reasonable worker from making or supporting a charge of

discrimination.’” [emphasis added]

2. McKinney engaged in statutorily protected activity.

As a prerequisite to satisfying factor (1), a statutorily protected activity must exist for

McKinney to engage in. Orton-Bell v. State of Indiana, 759 F.3d 768, 776 fn. 6 (7th Cir. 2014). 

19

USDC IN/ND case 1:15-cv-00079-RLM-SLC document 30 filed 09/07/16 page 19 of 25
The definition of such is set forth as follows:

“‘Title VII forbids retaliating against an employee because he has opposed any

practice made ... unlawful ... by [Title VII], or because he has made a change,

testified, assisted, or participated in any manner in an investigation, proceeding,

or hearing under [Title VII.]’ Collins v. American Red Cross, 715 F.3d 994, 998

(7th Cir. 2013)(quoting 42 U.S.C. § 2000e-3(a)).”

McKinney may rely upon a complaint to an employer and such complaint must

sufficiently indicate that the discrimination occurred...” within the classes protected under Title

VII. McKinney concedes that merely complaining of management’s style or general harassment

not related to sex is not sufficient to satisfy factor (1). Tomanovich v. City of Indianapolis, 457

F.3d 656, 663 (7th Cir. 2006). McKinney, however, made it clear that race was always inferred if

not mentioned.

The Seventh Circuit addressed this issue in Davis v. Time Warner Cable of Southeastern

Wisconsin, 651 F.3d 664, 674 (7th Cir. 2011). That case involved a terminated employee who

complained to his supervisor as to various issues of alleged discriminatory treatment based upon

race. The plaintiff claimed that he was terminated on baseless grounds in retaliation for his

informal comments to his supervisor. The Seventh Circuit after adopting, albeit in different

language, the same three factor requirement to prove retaliation by the direct method went on to

make the following comment:

“Time Warner makes only a half-hearted effort to dispute that Davis’s informal

comments to Cleboski are within the scope of protected activity. That is wise, as

we have held that ‘an informal complaint may constitute protected activity for

purposes of retaliation claims.’ Casna v. City of Loves Park, 574 F.3d 420, 427

(7th Cir. 2009). Davis’s complaints to his supervisor here were much more direct

than the query, ‘Aren’t you being discriminatory?’ that we deemed protected in

Casna. We thus conclude that Davis’s comments to Cleboski are ‘protected

activity’ for the purposes of Title VII and § 1981.”

20

USDC IN/ND case 1:15-cv-00079-RLM-SLC document 30 filed 09/07/16 page 20 of 25
3. The trier of fact has sufficient evidence to determine a causal connection between

the statutorily protected activity and McKinney’s termination. 

This factor (3) is arguably the most difficult to analyze because there is clearly no

specific language “smoking gun.” However, that augers in favor of McKinney in order for the

trier of fact to make the determination and draw reasonable inferences and not this trial court on

summary judgment. The extensive evidence, both direct and circumstantial, is set forth in the

Statement of Genuine Disputes – Disputes 8 and 9. 

In further support of McKinney is Vance v. Ball State University, 646 F.3d 461 (7th Cir.

2011). McKinney claims a trier of fact reviewing the totality of the circumstances could find the

many incidences set forth are clear. Vance states that employers may not punish employees for

complaining about workplace conduct if they even arguably do not violate Title VII. 

II. INVESTIGATORY STOP BY DEPUTY HELFRICH

A. FEDERAL CLAIMS

1. UNLAWFUL SEIZURE

Any claim for unlawful seizure is not well founded given the 911 call’s content and

appropriate law enforcement dispatch.

2. EXCESSIVE FORCE

Even assuming the statement by the Defendants is correct as to the amount of force to be

used at page 17 of the Memorandum, “The reasonableness of a particular use of force must be

judged from the perspective of a reasonable officer on the scene ...”. The Defendants argue “de

minimis touching” does not constitute excessive force. This is where the stories diverge. As set

forth in the facts in Statement of Genuine Disputes Dispute 10, the trier of fact needs to make

this call.

21

USDC IN/ND case 1:15-cv-00079-RLM-SLC document 30 filed 09/07/16 page 21 of 25
What was left out of this scenario painted by the Defendants was that McKinney was

forced to get out of his truck and lay down in the middle of the traveled portion of the road face

down while he was roughly handcuffed and was pulled up by his handcuffed lower arms for no

reasonable purpose. 

The case cited, Tibbs v. City of Chicago, 469 F.3d 661 (7th Cir. 2006), talks in terms only

of the handcuffing being too tight causing a loss of feeling, discomfort, pain and numbness,

including redness but no medical care for the plaintiff. However, Payne v. Pauley, 337 F.3d 767

(7th Cir. 2003), does indicate that excessively tight handcuffing resulting in carpal tunnel

surgeries was excessive and summary judgment was not appropriate under the circumstances. 

Plaintiff’s claims of handcuffing with excessive force includes not only tightness of the

handcuffs but the lifting and pulling up by the arms causing pain and discomfort in the hands,

arms, shoulders and back area. The Plaintiff’s deposition testimony clearly states the physical

symptoms that go well beyond those set forth in Tibbs or posited by Helfrich [page 18 of its

Memorandum]. Deputy Helfrich, who was not being handcuffed, states he “did not use

excessive force in handcuffing Plaintiff or assisting him to his feet while he was handcuffed.” –

This has no objective evidentiary weight.

The next argument posited by deputy Helrich is pointing his gun at the Plaintiff was not

excessive use of force. The Defendants cite Williams v. City of Champaign, 524 F.3d 826 (7th

Cir. 2008), as saying police are allowed to point their guns when there is reason to fear danger. 

This was not a fear of danger situation. This was a reported theft of a refrigerator. This was not

murder, assault, discharge of a weapon, a knife fight or any kind of physical combat. The truck

stopped in the same manner as if somebody had got stopped for speeding. There is no evidence

22

USDC IN/ND case 1:15-cv-00079-RLM-SLC document 30 filed 09/07/16 page 22 of 25
presented that depicts Helfrich was in fear or that he had to protect himself with the use of the

gun.

3. EQUAL PROTECTION

The Defendants statement at page 19 of its Memorandum indicates, “The central purpose

of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official

conduct discriminating on the basis of race.” The Defendants claim this requires “a showing of

purposeful discrimination” which makes sense as opposed to accidental discrimination. The two

elements set out, based on decisional authority, are that: (1) the plaintiffs must prove that the

defendants action had a discriminatory effect and (2) were motivated by a discriminatory

purposes. The first element is proven because the discriminatory effect was termination of the

only black/African-American deputy ever in the employee of the WCSD. The second element is

motivated by a discriminatory purpose. Those facts are laid out in detail in the Statement of

Genuine Disputes, Dispute 8 and Dispute 9. It is axiomatic that the Plaintiff has shown multiple

members of the white deputies of the unprotected class, were treated differently. This does not

relate to the traffic stop but relates to the actual intentional discrimination by Sheriff Hodges. 

This is an Equal Protection claim with respect to termination, not an Equal Protection claim with

respect to the traffic stop. 

B. POLICY CLAIM AGAINST WHITLEY COUNTY

There is no evidence that has been established by the Plaintiff to indicate that there is a

custom or policy of constitutional deprivation by WCSD relating to excessive force arrests. It is

uncontradicted that deputy Helfrich has a history of citizens’ complaints for use of excess force

that doesn’t appear to be able to translated into a WCSD policy.

23

USDC IN/ND case 1:15-cv-00079-RLM-SLC document 30 filed 09/07/16 page 23 of 25
C. QUALIFIED IMMUNITY

Qualified immunity may very well not apply in that deputy Helfrich was reacting to what

appeared to be an appropriate dispatch based upon a 911 call of a burglary or stolen property

incident in progress. This did not entitle him in his official or individual capacity to inflict

excessive force.

D. STATE LAW CLAIMS

1. INDIANA TORT CLAIMS ACT

The Notice of Tort Claim was properly and timely served. It is an undisputed statement

of law that a Notice of Tort Claim has to be filed within 180 days of the incident occurring. As

stated, deputy Helfrich performed an investigatory stop on July 6, 2013 and a Notice of Tort

Claim is by its own date signed and dated July 30, 2014. Plaintiff never argued this notice was

for the traffic stop. The short plain statement of facts in the Notice of Tort Claim is directed

towards the wrongful termination involving blackballing and intentional infliction of emotional

distress – an intentional tort. It is not required for any claims under 42 U.S.C. 1983 to have a

Notice of Tort Claim filed. It is a tort as a personal claim against deputy Helfrich in his

individual capacity.

2. FALSE ARREST

This is not a claim.

3. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Since this claim was directed to the Defendants under the ITCA notice – it does not

involve deputy Helfrich’s official action and is governed only by Sheriff Hodges termination. 

However, deputy Helfrich’s individual actions stand on their own without the necessity of filing

notice under ITCA. The elements (2) , (3) and (4) are arguably satisfied by McKinney. Element

24

USDC IN/ND case 1:15-cv-00079-RLM-SLC document 30 filed 09/07/16 page 24 of 25
(1) is left for the jury to determine if it was “outrageous.”

4. BATTERY

This is a jury question. Can deputy Helfrich actually say “his actions were objectively

reasonable in light of the facts and circumstance”?

VEGELER LAW OFFICE LLC

By: /s/ Robert Owen Vegeler 

Robert Owen Vegeler (0947-02)

110 West Berry Street, Suite 1200

Fort Wayne, Indiana 46802

Ph: (260) 407-6161

Fax: (260) 407-6160

robert@vegelerlaw.com

Counsel for Plaintiff

CERTIFICATE OF SERVICE

I hereby certify that on this 7th day of September, 2016, a copy of the foregoing was filed

electronically. Notice of this filing will be sent to the following parties by operation of the

Court’s electronic filing system. Parties may access this filing through the Court’s system.

Julie J. Havenith, Esq.

TRAVELERS STAFF COUNSEL OFFICE

707 E. 80th Place, Suite 100

Merrillville, IN 46410

Attorney for Defendants

 /s/ Robert Owen Vegeler 

Robert Owen Vegeler

25

USDC IN/ND case 1:15-cv-00079-RLM-SLC document 30 filed 09/07/16 page 25 of 25