Timothy Upchurch v. State of Indiana

Indianapolis, Indiana employment law lawyer represented the Plaintiff who claiming job discrimination.



Timothy Upchurch is a Black Correctional Officer at CIF. First hired

in 1994 as an Officer, he was promoted to Sergeant in Novem-

ber 2007 and Lieutenant in September 2015. In January 2019,

Warden Wendy Knight demoted him two levels.



His demotion back to an Officer position followed an in-

vestigation into a harassment complaint by Officer Colin

White against Officer David Myers. As relevant here, White

told the investigator that on November 18, 2018, Myers called

the shift supervisor's office, reached Upchurch, and made fun

of White, including by telling Upchurch, "White hasn't had

sex with his wife since he got married.” Officer Ty Palmer,

who was in the shift supervisor's office with Upchurch that

day, confirmed the inappropriate comment, stating that Up-

church had repeated it to him. Myers, meanwhile, told the in-

vestigator that "he could have [made the comment to Up-

church] but he doesn't remember,” and "if he did [make the

comment,] it would be because White told him that.” Up-

church denied hearing or repeating the comment. The inves-

tigator ultimately credited Palmer's account and recom-

mended Upchurch receive a two-level demotion. Warden

Knight agreed, imposing the demotion on January 2, 2019.



Since the demotion, Deputy Warden Andrew Cole has is-

sued Upchurch three written reprimands in lieu of suspen-

sions: in February 2019 for refusing mandatory overtime; in

March 2019 for an unauthorized 30-minute leave; and in July

2020 for 11.5 hours of unauthorized leave. In addition, Cole

suspended Upchurch for 10 days in February 2021 for pos-

sessing and using chewing tobacco found in a corridor, which

Cole attributed to Upchurch, although Upchurch denied that

he brought the tobacco into the facility.



Over this period and through September 2021, Upchurch

unsuccessfully applied for more than twenty positions at CIF

and other Department facilities.* The Department states that

its disciplinary actions explain many of the non-promotions:

Under a policy at both CIF and the Department's Indiana

Women's Prison ("IWP”), employees are ineligible for a pro-

motion within twelve months of formal discipline, including

a suspension or a written reprimand in lieu of a suspension.

All but five of Upchurch's applications for promotions at CIF

and IWP fell within a year of formal discipline.



At Indiana Women's Prison, he applied for Sergeant and Lieutenant

positions in August 2019; Sergeant and Captain positions in April 2020; a

Lieutenant position in May 2020; a Correctional Caseworker position in

July 2020; and a Lieutenant position in August 2021.



At Miami Correctional Facility, he applied for a Lieutenant position in

October 2020; a Sergeant position in February 2021; and a Lieutenant po-

sition in August 2021.



He also applied for Parole Officer positions in May4 No. 24-1355

From March to July 2020, the only relevant period when

the policy described by the Department did not preclude Up-

church from promotion at CIF, he applied for a Sergeant and

a Lieutenant position at CIF. Warden Knight made the hiring

decisions for both positions. She selected Brandon Richey, a

Sergeant at Pendleton Correctional Facility, for the Lieutenant

position, and Jerry Gilley, a Captain at Pendleton, for the Cap-

tain position. In her affidavit, Knight explained that Richey

and Gilley had superior qualifications to Upchurch: Richey

brought experience as a Sergeant at a maximum-security fa-

cility (Pendleton), and Gilley had served as a Captain at CIF

before transferring to Pendleton.



Upchurch claims that race discrimination and retaliation

for his complaints about discrimination motivated his disci-

plinary record and non-promotions. Since May 2019, he has

filed five charges of discrimination and retaliation with the

Indiana Civil Rights Commission and the Equal Employment

Opportunity Commission ("EEOC”). The EEOC responded to

each charge with a right-to-sue letter. In November 2019, Up-

church filed this lawsuit against the State of Indiana, invoking

Title VII of the Civil Rights Act, 42 U.S.C. § 2000e–2 et seq.

During discovery, Upchurch did not take any depositions

in this case, including those of the decisionmakers. After the

close of discovery, the State of Indiana moved for summary

judgment, arguing that the Indiana Department of Correc-

tion, as Upchurch's employer under Title VII, was the proper

defendant. The district court agreed that Upchurch had sued

the wrong defendant. Rather than grant the State's motion,

however, the court substituted the Department for the State

pursuant to Federal Rule of Civil Procedure 21.

The Department then moved for summary judgment. The

district court granted the motion, finding insufficient evi-

dence in the record of race discrimination or retaliation for a

reasonable jury to return a verdict for Upchurch.





Afirmed