Rodman Atkins ("Atkins") was a school bus driver for the Indianapolis Public Schools ("IPS") until he was discharged in 1990 for allegedly refusing to take a drug test. Atkins who is an African-American believes that his discharge was discriminatory and has filed a multi-count complaint against the Defendants seeking declaratory judgment injunctive relief and damages. Defendants move Court to enter summary judgment in their favor. Defendants also move Court to strike portions of Atkins's affidavit exhibits attached to his brief in response to the Defendants' motion for summary judgment and the affidavit of Judith K. Pennington. Atkins in turn moves Court to strike portions of Dr. James Adams's ("Adams") affidavit. For reasons that will be explained below the Defendants' motion for summary judgment is granted in part and denied in part. The Defendants' motion to strike portions of Atkins's affidavit and the exhibits attached to his response brief is granted and the motion to strike the affidavit of Judith K. Fennington is denied. Atkins's motion to strike the affidavit of Adams is denied.
I. BACKGROUND
At the time that this action was commenced Adams was the Superintendent of IPS Rodney M. Black ("Black") was the Manager of the IPS Business Department and Lorenzo Davis ("Davis") was Assistant Supervisor of the IPS Transportation Department. IPS hired Atkins on August 11 1980 as an extra-curricular bus driver. He was terminated by the Board of School Commissioners ("Board") on March 20 1990 after Adams recommended to the Board that he be relieved of his duties for refusing to take a drug test. This action was taken following Adams's review of Atkins's tenure with IPS which revealed several complaints concerning his alleged drug use and being intoxicated while on duty. In 1988 IPS received four unsolicited complaints against Atkins. On one occasion someone reported that Atkins had been seen smoking marijuana and drinking alcohol in a car parked across the street from the main school bus depot. On another occasion two teachers and a parent complained to IPS that Atkins was under the influence of drugs or alcohol while he drove students on a field trip to Noblesville.
On February 8 1990 Adams received another complaint about Atkins's alleged drug use which prompted IPS to request that he submit to drug testing. Atkins allegedly refused to cooperate. On February 12 1990 Davis sent a letter to Atkins advising him that he would recommend to Adams that his employment be terminated for refusing to take a drug test. See Defendant's Exhibit O. IPS sent Atkins a copy of this letter by certified mail to the home address which he furnished to the IPS personnel department; Atkins's father Charles Atkins signed for the letter on February 14 1990. See Defendant's Exhibit P. Adams then sent a certified letter to Atkins two days later advising him that he would recommend to the Board that IPS terminate his employment for the reasons given in Davis's letter see Defendant's Exhibit Q; the letter was sent to the same address and again Atkins's father signed for it. See Defendant's Exhibit R. Adam's letter specifically advised Atkins that if he desired a hearing before the Board he was required to file his request within ten days. See Defendant's Exhibit Q. Plaintiff filed a request for a hearing on March 6 1990 more than ten days after the receipt of service had been signed. See Defendant's Exhibit S. Predictably the request was denied as untimely.
The Board terminated Atkins's employment with IPS on March 20 1990. Soon thereafter Plaintiff sent the Board a letter requesting that it reconsider its decision denying his demand for a hearing because his father had not given him the letter until February 26 1990. See Defendant's Exhibit U. Adams denied this request on April 18 1990. See Defendant's Exhibit V.
Having failed to regain his position through persuasion Atkins resorted to litigation. He filed a "Charge of Discrimination" with the Equal Opportunity Commission ("EEOC") on August 3 1990 which he amended on February 7 1991. The EEOC granted him permission to sue on November 27 1991 and he filed his complaint with this Court on January 31 1992. The complaint contains six counts: Count I alleges that the Defendants unlawfully terminated Atkins's employment because of his race in violation of Title VII of the Civil Rights Act of 1964 42 U.S.C. SEC. 2000(e) and 42 U.S.C. 1981 (as amended by the Civil Rights Act of 1991); Count II alleges that the Indianapolis Board of School Commissioners ("Board") denied Atkins a pre-termination hearing in violation of his right to due process and equal protection; Count III alleges that Adams deprived Atkins of liberty and property by terminating him from his employment because of his race deprived him of equal protection by retaliating against him for refusing to take a drug test and breached his contract of employment; Count IV alleges that Black recommended to the Indianapolis Board of School Commissioners that he be terminated from his employment and thereby violated Atkins's right to due process and equal protection; Count V alleges that Davis recommended to the Indianapolis Board of School Commissioners that he be terminated from his employment violating Atkins's right to due process; and Count VI alleges that the Defendants' terminated his employment for attempting to enforce rights protected by the First Fifth and Fourteenth Amendments to the United States Constitution. Atkins seeks full reinstatement an injunction preventing the Defendants from discriminating against him compensatory and punitive damages and costs and Counsel fees.
In their answer the Defendants deny Atkins's allegations and invoke the affirmative defenses of: (1) good faith; (2) unclean hands (i.e. Atkins's discharge was proper because he breached his employment contract); (3) failure to state a claim under 42 U.S.C. SEC. 1981 and the Civil Rights Act of 1991; (4) failure to exhaust administrative remedies; (5) lack of evidence (i.e. Atkins's discharge was for legitimate business reasons and not on account of race or sex); and (6) immunity.
II. DISCUSSION
A. Summary Judgment Standards
Under Rule 56(c) of the Federal Rules of Civil Procedure summary judgment is proper "if the pleadings depositions answers to interrogatories and admissions on file together with the affidavits if any show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. Proc. 56(c). While the burden rests squarely on the party moving for summary judgment to show that there is an absence of evidence to support the nonmoving party's case Celotex Corp. v. Catrett 477 U.S. 317 325 91 L. Ed. 2d 265 106 S. Ct.2548 (1986) the nonmoving party responding to a properly made and supported summary judgment motion still must set forth facts showing that there is a genuine issue of material fact and that a reasonable jury could return a verdict in its favor. See Wolf v. City of Fitchburg 870 F.2d 1327 1329 (7th Cir.1989); Posey v. Skyline Corp. 702 F.2d 102 105 (7th Cir.1983) cert. denied 464 U.S. 960 78 L. Ed. 2d 336 104 S. Ct.392 (1983). Denials contained in the pleadings or bald allegations that an issue of fact exists is insufficient to raise a factual issue. See Shacket v. Philko Aviation Inc. 681 F.2d 506 513 n.8 (7th Cir.1982) rev'd on other grounds 462 U.S. 406 76 L. Ed. 2d 678 103 S. Ct.2476 (1983). "The moving party is 'entitled to a judgment as a matter of law' [if] the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex Corp. v. Catrett 477 U.S. 317 323 91 L. Ed. 2d 265 106 S. Ct.2548 (1986). If doubts remain however as to the existence of a material fact then those doubts should be resolved in favor of the nonmoving party and summary judgment denied. See Wolf 870 F.2d at 1330. The Seventh Circuit Court of Appeals has described the application of these principles in the context of Title VII litigation:
In Title VII cases we approach the application of these principles with a special caution. Summary judgment is infrequently an appropriate resolution. The factual issues presented in such litigation including the issue of discriminatory intent which is often proven by circumstantial evidence cannot often be resolved on summary judgment. However even when such issues of motive or intent are at stake summary judgment is proper where the plaintiff presents no indications of motive and intent supportive of his position.
Powers v. Dole 782 F.2d 689 694 (7th Cir.1986) (citations omitted).
B. Atkins's Claims
1. Count I: Title VII and SEC. 1981 Claims as to All Defendants
Count I sets forth claims under Title VII 42 U.S.C. SEC. 2000(e) and 42 U.S.C. SEC. 1981 (as amended by the Civil Rights Act of 1991) against all the Defendants. The latter claim can be easily disposed of because discriminatory discharges are not actionable under 42 U.S.C. Sec. 1981. See McKnight v. General Motors Corp. 908 F.2d 104 108-109 (7th Cir.1990) cert. denied 499 U.S. 919 113 L. Ed. 2d 241 111 S. Ct.1306 (1991). Nor does the Civil Rights Act of 1991 have any bearing on this matter because the Seventh Circuit has held that it does not apply retroactively. See Luddington v. Indiana Bell Telephone Co. 966 F.2d 225 (7th Cir.1992; Mozee v. American Commercial Marine Service Co. 963 F.2d 929 (7th Cir. 1992) cert. denied 121 L. Ed. 2d 148 113 S. Ct.207 (1992). The Title VII claim requires further analysis.
a. Title VII Burdens
Title VII makes it unlawful "for an employer . . . to discharge any individual or otherwise to discriminate against any individual with respect to his compensation terms conditions or privileges of employment because of such individual's race . . . [or] sex . . . . " 42 U.S.C. SEC. 2000e-2(a)(1). A plaintiff alleging disparate treatment in violation of Title VII must establish that she has been the victim of intentional discrimination see Friedel v. City of Madison 832 F.2d 965 971-72 (7th Cir.1987) which she can do in two different ways: (1) by offering direct proof of discrimination see Price Waterhouse v. Hopkins 490 U.S. 228 104 L. Ed. 2d 268 109 S. Ct.1775 (1989) or (2) by relying on indirect evidence using the McDonnell Douglas Corp. v. Green 411 U.S. 792 36 L. Ed. 2d 668 93 S. Ct.1817 (1973) burden-shifting method of proof. See Bruno v. City of Crown Point 950 F.2d 355 361 (7th Cir.1991) cert. denied 120 L. Ed. 2d 874 112 S. Ct.2998 (1992). In Texas Department of Community Affairs v. Burdine 450 U.S. 248 67 L. Ed. 2d 207 101 S. Ct.1089 (1981) the Supreme Court described the latter framework as follows:
In McDonnell Douglas Corp. v. Green 411 U.S. 792 93 S. Ct.1817 36 L. Ed. 2d 668 (1973) we set forth the basic allocation of burdens and order of presentation of proof in a Title VII case alleging discriminatory treatment. (footnote omitted). First the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second if the plaintiff succeeds in proving the prima facie case the burden shifts to the defendant 'to articulate some legitimate nondiscriminatory reason for the employee's rejection." Id. at 802; 93 S. Ct. at 1824. Third should the defendant carry this burden the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons but were a pretext for discrimination. Id. at 804 93 S. Ct. at 1825.
Burdine 450 U.S. at 252-53.
To establish a prima facie case of disparate treatment based on race or gender the plaintiff must present facts which show that: (1) he is a member of the protected class (2) he conducted himself in a manner consistent with his employer's legitimate business expectations (3) he suffered from an adverse employment action and (4) similarly situated employees who were not members of the protected class were treated more favorably. See Kizer v. Children's Learning Center 962 F.2d 608 611-12 (7th Cir.1992); Williams v. Williams Electronics Inc. 856 F.2d 920 923 (7th Cir.1988). If the plaintiff is unable to establish any one of these elements then summary judgment in favor of the employer is proper. See Reed v. Amax Coal Co. 971 F.2d 1295 1299 (7th Cir.1992).
If the employer is able to articulate a legitimate nondiscriminatory reason for the discharge the next burden the plaintiff bears is to show that the employer's stated reasons are pretextual. To do this the plaintiff must establish that he or she has been the victim of intentional discrimination. See Friedel 832 F.2d at 972 citing Cooper v. Federal Reserve Bank of Richmond 467 U.S. 867 875 81 L. Ed. 2d 718 104 S. Ct.2794 (1984). This showing may be made in one of two ways: "either directly by persuading Court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Burdine 450 U.S. at 256. No matter which showing is made this burden . . . merges with the ultimate burden of persuading Court that she has been the victim of intentional discrimination. Id.; see also Price Waterhouse supra.
In addition the employee ultimately must show that the employer's discriminatory intent was the "but for" cause of the adverse action. See Williams 856 F.2d at 923. Under the "but for" standard of causation:
It is not enough for an employee to show that an employer harbored some discriminatory motivation. Rather the employee must establish that the discriminatory motivation was a determining factor in the challenged employment decision in that the employee would have received the job absent the discriminatory motivation.
McQuillen v. Wisconsin Education Association Council 830 F.2d 659 664 (7th Cir.1987) cert. denied 485 U.S. 914 99 L. Ed. 2d 248 108 S. Ct.1068 (1988).
b. Atkins's Prima Facie Case
Atkins definitely can establish two of the four elements needed to make out a prima facie case of race or gender discrimination. It is undisputed that he is a member of a protected class and that he has suffered an adverse employment action (i.e. he has been discharged from his job). The remaining two elements are more formidable obstacles to his cause however. First Atkins contends that he conducted himself in a manner consistent with IPS's legitimate business expectations because in his view IPS had no right to make his employment contingent on his willingness to submit to drug testing. IPS argues that its employment contract with Atkins gives it the right to test him for drugs and that both the Indiana Code and recent U.S. Supreme Court holdings permit such tests in circumstances that are present in this case. Second Atkins claims that similarly situated white IPS employees and female bus drivers who were accused of drug or alcohol abuse were not required to submit to drug testing and were not terminated from their employment as he was. IPS argues that Atkins has absolutely no evidence to substantiate his disparate treatment claims.
(1). Atkins's Challenge to IPS's Request that He Submit to Drug Testing
Atkins claims that IPS's request that he take a drug test is "unlawful" see Plaintiff's Contentions at P 3(d) and given this fact he apparently believes that drug testing is not a legitimate business expectation which IPS should impose on its bus drivers. In resolving this claim Court also must decide concurrently whether IPS has articulated a legitimate nondiscriminatory reason for his discharge because both inquiries center on the propriety of IPS's demand that Atkins submit to a drug test. The facts of this case are such that the second inquiry which normally would begin once Atkins had established his prima facie case collapses into the first or that part of the plaintiff's prima facie case concerning the employer's legitimate business expectations.
The Defendants are correct in stating that Atkins entered into an employment contract with IPS. See Plaintiff's Exhibit Z. The contract specifically states that Atkins is required to submit to a physical examination whenever IPS so requests and that failure to comply is grounds for dismissal:
6. Employer may at any time require any Driver to submit to an additional physical examination by a licensed Indiana Physician selected by the Employer. Employer shall pay the cost of additional physical examinations required as set out in Acts 1973 Public Law 218 Article 9.1. Chapter 3 Section 4 [I.C.20-9.1-3-4). . . .
12. It is specifically agreed that the provisions in Acts 1973 Public Law 218 Article 9.1 as same may be amended and as same apply to school bus drivers are made a part of this contract and it is the intention of the parties thereto to enter into a valid and binding contract subject to the Public Transportation Code (Acts 1973 Public Law 218 Article 9.1) the provisions of which shall prevail over any part of this contract determined to conflict therewith.
14. Failure on the part of the Driver to comply with the terms of this contract shall be deemed cause for dismissal at the option of the Employer.
Defendants' Exhibit Z; Affidavit of James A. Adams P 16. Defendants point out that Indiana law as cited in the contract authorizes a school corporation to require its school bus drivers to submit to physical examinations whenever the school corporation requests. The relevant provision provides:
20-9.1-3-4. School bus drivers--Additional physical examinations. -- A governing body may at any time require any driver operating a school bus for its school corporation to submit to a physical examination by a licensed Indiana physician selected by the corporation. The school corporation shall pay the cost of an examination under this section.
Ind. Code 20-9.1-3-4 (Burns 1992). Although this section does not specifically mention drug testing when read in conjunction with the statutorily defined standards for school bus drivers the legislature's intent to provide the option of including drug testing as part of the physical examination is readily apparent. See e.g. K-Mart Corp. v. Cartier Inc. 486 U.S. 281 291 100 L. Ed. 2d 313 108 S. Ct.1811 (1988) ("In ascertaining the plain meaning of the statute Court must look to the particular statutory language at issue as well as the language and design of the statute as a whole."); Illinois E.P.A. v. U.S. E.P.A. 947 F.2d 283 289 (7th Cir. 1991). Section 20-9.1-3-1 states:
School bus drivers--Standards.-- A person may not drive a school bus for the transportation of school children unless the person:
(a) Is of good moral character;
(b) Does not use intoxicating liquor during school hours;
(c) Does not use intoxicating liquor to excess at any time;
(d) Is not addicted to any narcotic drug;
(e) Is at least twenty-one (21) years of age;
(f) Holds a valid public passenger chauffeur's license issued by the state of Indiana or any other state; and
(g) Possesses the following required physical characteristics:
(1) Sufficient physical ability to drive a school bus;
(2) Possession and full normal use of both hands; both arms both feet both legs both eyes and both ears;
(3) Freedom from any communicable disease;
(4) Freedom from any mental nervous organic or functional disease;
(5) Visual acuity with or without glasses of at least 20/40 in each eye and a field of vision with 150 degree minimum and with depth perception of at least 80%.
Ind. Code 20-9.1-3-1 (Burns 1992). The objective of these standards is to ensure that school bus drivers in Indiana have the present ability to perform their duties and thereby provide children with safe transportation to and from school. In the same way Section 20-9.1-3-1.6(b) provides criminal penalties for drivers who operate a school bus under the influence of drugs or alcohol: "(b) A person who is a school bus driver and who knowingly and intentionally: (1) Consumes a controlled substance or intoxicating liquor within six (6) hours before: (A) Going on duty; or (B) Operating a school bus; or (2) Consumes or possesses a controlled substance or intoxicating liquor commits a Class A misdemeanor." Ind. Code SEC. 20-9.1-3-1.6 (Burns 1992).
The importance of Section 20-9.1-3-4 to the regulatory scheme for school bus drivers is readily apparent: it allows school authorities to enforce the standards which the legislature created. Suspicion that a particular driver is not fit to carry-out his or her duties need not wait confirmation through a disaster or the next scheduled physical exam. For the safety of Indiana's children school authorities may at any time demand that a driver submit to a physical exam. See Ind. Code SEC. 20-9.1-3-4. That this exam may include investigation for drug use including a urinalysis is apparent in the standards themselves: limitations on drug and alcohol use are listed along with a host of performance related physical requirements. See Ind. Code SEC. 20-9.1-3-1.
The testing of school bus drivers for drugs even without suspicion is not subject to constitutional attack. The United States Supreme Court has upheld the constitutionality of suspicionless drug testing laws provided that the state is able to articulate "special needs" for the search. *fn1 See Skinner v. Railway Labor Executives' Association 489 U.S. 602 619-20 626-27 103 L. Ed. 2d 639 109 S. Ct.1402 (1989); National Treasury Employees Union v. Von Raab 489 U.S. 656 103 L. Ed. 2d 685 109 S. Ct.1384 (1989). Guaranteeing the sobriety of school bus drivers is such a "special need." See Jones v. Jenkins 279 U.S. App. D.C.19 878 F.2d 1476 (D.C. Cir.1989). That IPS waited until it had a suspicion that Atkins was using drugs does not negate the validity of its enforcement action in this case. Atkins's criticisms of IPS's attempted execution of its contractual rights is meritless. School districts in Indiana have a legitimate expectation that their bus drivers will submit to drug testing when as here the employment contract incorporates the aforementioned Indiana statute and includes a requirement providing for unscheduled physical exams. *fn2 See McDonnell Douglas 411 U.S. at 802.
Court can also say that IPS has articulated a legitimate nondiscriminatory reason for Atkins's termination: "he refused to submit to a drug test." *fn3 Whether in fact he refused is not significant at this stage of the analysis; the reason itself is legitimate and non-discriminatory.
(2) Atkins Claim of Disparate Treatment
Besides challenging the legal foundations of IPS's decision to test its bus drivers for drugs Atkins also claims that IPS's request that he submit to testing was discriminatory. See e.g. Yick Wo v. Hopkins 118 U.S. 356 363 30 L. Ed. 220 6 S. Ct.1064 (1886) (finding violation of equal protection in discriminatory application of facially neutral law). Specifically he believes that similarly situated white or female IPS employees were treated more favorably in that they were not asked to undergo drug testing even though IPS was aware of or suspected their drug abuse and unlike him IPS did not terminate their employment. Atkins presents the Court with his own affidavit to support these charges. Because the Defendants have filed a motion to strike part of the affidavit including many of the statements that Atkins relies on to support his discrimination charges Court will address the merits of that motion before deciding whether a genuine issue remains for the jury to resolve as concerns IPS's alleged disparate treatment of Atkins.
(a) Defendants' Motion to Strike Atkins's Evidence of Disparate Treatment
Defendants move Court pursuant to Fed. R. Civ. Proc. 56(e) to strike paragraphs 6 8-12 and 17-19 of Atkins' Affidavit and Exhibits "A" through F attached to Plaintiff's Response to Defendants' Motion for Summary Judgment. Rule 56(e) states: "Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing affidavits shall be made on personal knowledge shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein." As the language of the Rule plainly indicates the requirement of personal knowledge is mandatory. See Toro Co. v. Krouse Kern & Co. Inc. 827 F.2d 155 162 n.3 (7th Cir.1987). The facts presented in the affidavit also must be admissible evidence. "The policy of Rule 56(e) is to allow the affidavit to contain evidentiary matter which if the affiant were in court and testifying on the witness stand would be admissible as part of his testimony." Pfeil v. Rogers 757 F.2d 850 860 (7th Cir.1985) cert. denied 475 U.S. 1107 89 L. Ed. 2d 912 106 S. Ct.1513 (1986) citing 6 Moore's Federal Practice SEC. 56.22[1] at 1321-22 (1982); see also Randle v. LaSalle Telecommunications Inc. 876 F.2d 563 570 n.4 (7th Cir.1989) ("Rule 56(e) requires that evidentiary affidavits 'shall set forth facts as would be admissible in evidence.' Based on this requirement our cases have stressed that we are unable to consider hearsay statements that are not otherwise admissible at trial.").
Applying these standards Court finds that paragraphs 6 10 12 18 and 19 of Atkins's affidavit are based on information and belief and not on personal knowledge and paragraphs 8 9 11 and 17 are hearsay statements not subject to any exception under the Federal Rules of Evidence. Exhibits "A" through "F" attached to Plaintiff's Response to Defendants' Motion for Summary Judgment also must be stricken because they are not referenced in Atkins's affidavit and have not otherwise been authenticated. They consequently are inadmissible hearsay. See Martz v. Labor Life Insurance Co. 757 F.2d 135 138 (7th Cir.1985).
] The Defendants also move Court to strike the affidavit of Judith K. Pennington because they believe that the affidavit was filed in an untimely manner. Court denies the motion in light of Court's order of December 23 1992 regarding trial preparation deadlines.
(b) Atkins's Evidence of Disparate Treatment
Having granted Defendants' motion to strike portions of Atkins's affidavit Court is unable to identify any evidence which creates a genuine issue for trial concerning whether similarly situated white or female employees were treated more favorably than Atkins. See Kizer supra; Williams supra; see also Exhibits attached to Defendant's Reply Brief in Support of Motion for Summary Judgment. Atkins has failed to make out a prima facie case of discrimination under Title VII. Count I is dismissed. *fn4
2. Count II: Denial of Due Process and Equal Protection as to the Board
Count II alleges that the Indianapolis Board of School Commissioners denied Atkins a pre-termination hearing in violation of his right to procedural due process and equal protection under the Fourteenth Amendment. Court has already recounted the relevant facts surrounding Atkins not being afforded a hearing supra and will not repeat them here suffice it to say that Adams sent Atkins a certified letter on February 16, 1990 informing him that he had ten days from the receipt of the letter to provide notification to IPS that he wanted a formal hearing. Atkins claims that he did not receive the letter from his father until February 26, 1990 and that he provided notification within ten days from that date.
A due process claim must be based on a violation of a protected liberty or property interest. See Bishop v. Wood 426 U.S. 341 48 L. Ed. 2d 684 96 S. Ct.2074 (1976). Atkins therefore must demonstrate that he had a constitutionally protected property interest and that he was deprived of that interest without adequate due process of law by individuals acting under color of state law. See Panozzo v. Rhoads 905 F.2d 135 138 (7th Cir.1990). A public employee hired pursuant to an employment contract has a property interest in his continued employment which is safeguarded by due process of law during the term of the contract. See Board of Regents of State Colleges v. Roth 408 U.S. 564 576-77 33 L. Ed. 2d 548 92 S. Ct.2701 (1972) citing Wieman v. Updegraff 344 U.S. 183 97 L. Ed. 216 73 S. Ct.215 (1952); see also Birdsell v. Litchfield Board of Fire & Police Commissioners 854 F.2d 204 208 (7th Cir.1988) ("The Supreme Court has recognized that the property interest that is implicated when a public employer terminates an employee with legitimate expectations of job security is an especially weighty one."). Court will assume arguendo that Atkins had a property interest in his employment with IPS based on the "School Bus Driver's Employment Contract". See Defendants' Exhibit Z.
An employee who possesses a property interest in his job must be given notice and an opportunity to be heard prior to dismissal. See Cleveland Board of Education v. Loudermill 470 U.S. 532 547 84 L. Ed. 2d 494 105 S. Ct.1487 (1985). "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated under all the circumstances to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Central Hanover Bank & Trust Co. 339 U.S. 306 314-15 94 L. Ed. 865 70 S. Ct.652 (1950). In general the notice must afford a reasonable time for those interested to make their appearance. Id. at 314. In identifying the minimum requirements of due process *fn5 the Supreme Court balances public and private interests according to the framework which it established in Mathews v. Eldridge 424 U.S. 319 47 L. Ed. 2d 18 96 S. Ct.893 (1976).
Our prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First the private interest that will be affected by the official action; second the risk of an erroneous deprivation of such interest through procedures used and the probable value if any of additional or substitute procedural safeguards; and finally the Government's interest including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Mathews 424 U.S. at 334-35. The same balancing approach applies to evaluations of the adequacy of the notice. See Birdsell 854 F.2d at 207.
Applying the Mathews factors to this matter Court has already identified the interest which Atkins has at stake; Court will assume for purposes of this argument that he has a property interest in his employment. The second prong of the Mathews test requires Court to focus on two considerations: (1) the risk that the Board's current notice practices would erroneously deprive Atkins's of his employment and (2) the value of additional notice procedures.
After Adams had decided to recommend to the Board that Atkins's employment with IPS be terminated he sent a letter via certified mail to the home address which Atkins provided to the IPS personnel department. *fn6 This is not a situation therefore where IPS threw its notice to the wind in hopes that it would land at Atkins's feet. It first searched its employment records to locate the address which Atkins provided for purposes such as the one here where correspondence through the mails was necessary. To ensure the letter's delivery IPS took the additional precaution of sending it via certified mail and has produced the return receipt as proof that the letter reached Atkins's home. See Defendant's Exhibit R. Atkins's father signed for the notice when it was delivered.
Thus the procedures which IPS employed while not eliminating the risk that Atkins would not receive notice of the opportunity for a hearing ensured at a minimum that notice would reach the forwarding address which he left on file with the personnel department. The use of substitute procedures such as providing hand delivery of the notice or telephoning the employee soon after scheduled delivery is to occur to confirm receipt would reduce the risk of an erroneous deprivation only marginally since these procedures would matter only in the limited circumstance where the employee had absented himself from the address for more than the time required to respond. The time given to Atkins to request a hearing ten days did not violate his right to due process. See Panozzo 905 F.2d at 138-39 n.5. (finding no due process violation in municipality's refusal to entertain appeal of discharged employee who was given ten days to request a hearing).
Although this Court readily recognizes that there is some value in particular safeguards which could be added to IPS's present notification procedures when balanced against the Government's interest Court must conclude that they are not a requirement of due process and that the notification procedure which IPS followed in this case met the minimum requirements of due process. The Supreme Court has recognized the strong governmental interest "in quickly removing an unsatisfactory employee." Loudermill 470 U.S. at 546. Owing to the nature of the risk which an intoxicated school bus driver poses the state's interest is especially weighty. "The state has an obligation to prevent loss of life and serious injury to those members of the community to whom it has a very special responsibility the young." Darryl H. v. Coler 801 F.2d 893 902 (7th Cir.1986). In addition the fiscal and administrative burdens entailed with any additional procedures would be excessive. To force IPS to provide actual notice of the opportunity for a hearing to those employees faced with discharge would in essence be asking a government entity to sacrifice the efficiency of its operations to factors as trivial as the holiday and travel plans of those with whom it has a duty to correspond. It was incumbent upon Atkins to keep IPS apprised of his current mailing address and he cannot now be heard to complain because his employer sent important correspondence to that address. That he decided to absent himself from his address without furnishing other instructions to IPS or that his father decided for whatever reason to keep the letter to himself are not factors which warrant modifying IPS's notification procedures. The government has to assume that adults will act responsibly. Requiring IPS to develop policies tailored to the panoply of quirky behaviors available to humans is not a course that this Court can recommend. Atkins's claim that IPS abridged his Fourteenth Amendment rights by denying him a hearing is meritless. By failing to respond within ten days from the date of delivery of the IPS notice Atkins's waived his right to a hearing. See Fern v. Thorp Public School 532 F.2d 1120 1131 (7th Cir.1976) (holding that teacher who sought injunction when faced with discharge waived right to hearing); Field v. Boyle 503 F.2d 774 778 (7th Cir.1974) (finding that Court waived right to a hearing after he declined the opportunity for one); Suckle v. Madison General Hospital 499 F.2d 1364 1367 (7th Cir.1974) (holding that physician discharged from staff of hospital was not entitled to a hearing because he could not secure a right which he declined when it was voluntarily offered to him). Count II is dismissed.
3. Counts III IV V and VI: Due Process and Equal Protection Claims as to Adams Black and Davis; Breach of Contract Claim as to Adams; and Sec. 1983 Claims as to All Defendants
Counts III IV and V allege that Adams Black and Davis respectively deprived Atkins of due process by terminating him from his employment or recommending the same because of his race and deprived him of equal protection by retaliating against him for refusing to take a drug test all in violation of 42 U.S.C. SEC. 1983. *fn7 Count III also alleges that Adams breached Atkins's contract of employment. Count VI sets forth separate SEC. 1983 claims against all the Defendants for violations of rights guaranteed under the First Fifth and Fourteenth Amendments.
To survive the Defendants' motion for summary judgment Atkins must set forth facts showing the need for a trial. See Wolf 870 F.2d at 1329. A court must enter summary judgment against the nonmoving party if after adequate time for discovery the party "fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett 477 U.S. 317 322 91 L. Ed. 2d 265 106 S. Ct.2548 (1986). Under both Title VII and Sec. 1983 the plaintiff is required to establish that she has been the victim of intentional discrimination. Bruno v. City of Crown Point 950 F.2d 355 361 (7th Cir.1991) cert. denied 120 L. Ed. 2d 874 112 S. Ct.2998 (1992). As Court has already explained however it is at a complete loss as to what evidence direct or circumstantial Atkins would present to a jury to prove his discrimination claims. The same is true of his retaliation claims. See infra. He has not produced one scintilla of evidence to further his cause leaving Court with no indications of motive and intent supportive of his position to create an issue of fact for a jury to resolve. See Friedel .832 F.2d at 972 citing Munson v. Friske 754 F.2d 683 690 (7th Cir.1985). Summary judgment in favor of the Defendants is appropriate in these circumstances. With the one exception noted below Counts III IV V and VI are dismissed to the extent that they set forth claims against Adams Black and Davis.
The only viable cause of action against any of the individual Defendants is Atkins's breach of contract claim against Adams in Count III. Under Indiana law there are two types of employment relationships: (1) employment at will see e.g. Mead Johnson and Co. v. Oppenheimer 458 N.E.2d 668 670 (Ind.App. 1st Dist.1984) and (2) employment for a definite term. See e.g. Peterson v. Culver Educational Foundation 402 N.E.2d 448 451 (Ind.App. 1st Dist. 1980). When a contract of employment is for a definite term it may not be terminated prematurely except for cause or mutual agreement unless the right to do so is expressly provided for in the contract. See Spearman v. Delco Remy 717 F. Supp.1351 1356 (S.D.Ind. 1989) and cases cited therein; I.L.E. Employment SEC. 9.
Atkins's employment contract with IPS was for the 1989-90 school year. Paragraph 14 of the contract gives IPS the right to dismiss Atkins "for cause": "Failure on the part of Driver to comply with the terms of this contract shall be deemed cause for dismissal at the option of the Employer." Defendants' Exhibit Z. The Defendants believe that Atkins's discharge was justified (i.e. "for cause") because he refused to take a drug test in violation of Paragraph 6 supra. Id. Atkins denies however that he ever refused to take the test. See Plaintiff's Affidavit at P 15. If Atkins was in full compliance with the terms of his employment contract at the time he was discharged then IPS's discharge of him without cause as required in Paragraph 14 would constitute a breach. To make this determination however Court would have to weigh the evidence and evaluate the credibility of witnesses which is beyond its appointed role at the summary judgment stage. A genuine issue remains whether Atkins refused to take a drug test.
a. Count VI: Sec. 1983 Claims Against the Board
Count VI also alleges that the Board terminated Atkins's employment for attempting to enforce rights protected by the First Fifth and Fourteenth Amendments to the Constitution of the United States. The Board is a "person" subject to suit within the meaning of 42 U.S.C. SEC. 1983. See Monell v. Dept. of Social Services 436 U.S. 658 690 56 L. Ed. 2d 611 98 S. Ct.2018 (1978) ("Congress did intend municipalities and other local government units to be included among those persons to whom SEC. 1983 applies."). In Monell the Supreme Court held that municipalities can be held liable under SEC. 1983 for constitutional violations caused by their official policies including unwritten customs but they cannot be held liable solely on a theory of respondeat superior. Monell v. Dep't of Social Services 436 U.S. at 691. "It is only when the 'execution of [the] government's policy or custom . . . inflicts the injury' that the municipality may be held liable under SEC. 1983." Springfield v. Kibbe 480 U.S. 257 267 94 L. Ed. 2d 293 107 S. Ct.1114 (1987) (quotations omitted); Woods v. Michigan City 940 F.2d 275 277 (7th Cir.1991).
The Supreme Court has "repeatedly stressed the need to find a direct causal connection between municipal conduct and the constitutional deprivation." Springfield v. Kibbe 480 U.S. at 267. Therefore to state a claim for municipal liability under Sec. 1983 the plaintiff must not only establish that an alleged constitutional deprivation ensued pursuant to an "official policy" of the municipality Tapia v. Greenwood 965 F.2d 336 338 (7th Cir.1992) citing Pembaur v. Cincinnati 475 U.S. 469 479-80 89 L. Ed. 2d 452 106 S. Ct.1292 (1986) the plaintiff must also demonstrate a direct causal link between the municipal policy and the constitutional deprivation. Id. citing Canton v. Harris 489 U.S. 378 103 L. Ed. 2d 412 109 S. Ct.1197 (1989); Strauss v. Chicago 760 F.2d 765 767 (7th Cir.1985). "Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell unless proof of the incident includes proof that it was caused by an existing unconstitutional municipal policy which policy can be attributable to a municipal policy maker." Tapia 965 F.2d at 338 citing Oklahoma City v. Tuttle 471 U.S. 808 823-24 85 L. Ed. 2d 791 105 S. Ct. 2427 (1985)); see Strauss v. Chicago 760 F.2d at 767 (citing Powe v. Chicago 664 F.2d 639 650 (7th Cir.1981)).
Judged against these standards Court concludes that summary judgment must enter in favor of the Board. At the time of Atkins's discharge the Board had a written policy in its Affirmative Action Plan prohibiting discrimination on the basis of race or sex. This policy is referenced in both the IPS employee handbook and the collective bargaining agreement between IPS and Local 661 of the American Federation of State County and Municipal Employees which represented Atkins. See Affidavit of Dr. James Adams at P 15; Defendants' Exhibits "W-Y". As Court has already noted Atkins has failed to produce evidence of any discriminatory conduct which presents an insuperable obstacle to a claim based on custom. Nor has he identified an official IPS policy promoting racially or sexually discriminatory conduct.
The same kind of deficiency defeats Atkins's retaliation claim: he has failed to identify any protected behavior which caused his discharge. The prima facie case for retaliation requires: (1) a showing that the employee engaged in statutorily protected expression; (2) an adverse action by the employer; and (3) a causal link between the protected expression and the adverse action. See Johnson v. Sullivan 945 F.2d 976 980 (7th Cir.1991). Although Atkins claims that he engaged in protected expression the only conduct which he has put at issue concerns the administration of IPS's drug testing policy. Assuming that Atkins refused to take a drug test this "expression" is not protected for reasons that Court has already explained. See Skinner v. Railway Labor Executives' Association 489 U.S. 602 619-20 626-27 103 L. Ed. 2d 639 109 S. Ct.1402 (1989); National Treasury Employees Union v. Von Raab .489 U.S. 656 103 L. Ed. 2d 685 109 S. Ct.1384 (1989). Count VI is dismissed.
C. Atkins's Motion to Strike
Atkins's moves Court to strike Exhibits A-M of Adams's affidavit. The motion is denied as moot because these exhibits had no bearing on the Court's ruling in this matter. Plaintiff may tender his objections at trial if the Defendants seek the introduction of these exhibits into evidence.
III. CONCLUSION
For the foregoing reasons the Defendants' motion for summary judgment is granted in part and denied in part. With the exception of his claim for breach of contract in Count III the Plaintiff's claims as set forth in his complaint are hereby dismissed. The only issue which remains for trial is whether the Plaintiff refused to take a drug test after IPS so requested.
The Defendants' motion to strike portions of Atkins's affidavit and the exhibits attached to his response brief is granted and the motion to strike the affidavit of Judith K. Pennington is denied. Atkins's motion to strike the affidavit of Adams is denied.