Peter Daza v. State of Indiana

After the Indiana Department of

Transportation (“INDOT”) fired Peter Daza from his position

as a geologist, Daza filed various claims against the State of

Indiana and INDOT employees, alleging that his firing was

unlawful. The district court granted summary judgment to

the defendants on all Daza’s claims. Daza appeals only the

grant of summary judgment on his claims under 42

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U.S.C. § 1983. Those claims alleged that the defendants violated

his First Amendment rights by discriminating and retaliating

against him for his political activities and affiliation. Because

Daza has failed to show that any of his alleged protected

activities or political affiliation motivated his firing, we

affirm.

I. BACKGROUND

Peter Daza began working for INDOT in 1993. During his

twenty‐two‐year tenure, he worked in INDOT’s Vincennes

District both as a geologist and as a supervisor. As a geologist,

Daza tested construction materials to ensure they complied

with INDOT standards. As a supervisor, Daza oversaw the

work of other INDOT employees.

Daza had not received any formal discipline until after a

change in leadership that occurred in September 2009. At that

time, a former Republican Indiana State Representative, Troy

Woodruff, was appointed District Deputy Commissioner of

INDOT’s Vincennes District. Almost a year later, Woodruff

was promoted to Chief of Operations, and Woodruff’s friend,

Russell Fowler, replaced Woodruff as Vincennes’s Deputy

Commissioner.

Daza alleges the political discrimination began two years

later, in 2011. INDOT employees learned that one of Daza’s

supervisees, Terry Goff, had posted political statements on his

private Facebook page. One employee asked Daza to speak

with Goff about the posts, expressing concern that the posts

might inhibit Goff’s ability to obtain a promotion.

Later that year, in August 2011, Goff interviewed for and

was denied a promotion. Upset with this decision, Goff told

the Director of Technical Services, Valerie Cockrum, that he

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felt disrespected by an interviewer who had texted during the

interview. But Daza had his own theory about why Goff did

not receive the promotion: politics. Daza voiced this concern

to Cockrum five days after Goff’s complaint, claiming that

Goff was consistently passed over for promotions because of

his connections to the Democratic party. Cockrum responded

that she would keep Daza’s complaint to herself, and she

commended Daza for his honesty and loyalty.

Goff’s troubles continued throughout 2011. Daza, who

completed a performance appraisal of Goff every year, gave

Goff an initial overall rating of “outstanding.” But because

Woodruff and Fowler disagreed with this assessment, Goff’s

final 2011 appraisal reflected an overall performance rating of

“exceeds expectations,” one level below his original “outstanding”

rating.

The next year and a half passed without incident. Around

February 2013, Chief of Operations Woodruff was involved in

a public scandal. It was discovered that he had previously

failed to disclose his financial interest in land purchased by

INDOT. This scandal received public attention and was discussed

by employees at INDOT’s Vincennes District. Daza

complained to Cockrum about Woodruff’s misuse of political

office.

One month after his complaint, Daza received his first

written reprimand. The Vincennes District had been unusually

busy due to construction on I‐69, so Fowler required employees

with an INDOT‐issued cell phone to be available for

calls after business hours. Daza did not take kindly to this requirement.

He complained and told other employees that it

was not a part of his job to work overtime. Daza’s supervisor,

Brent Schmitt, heard about these complaints and approached

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Daza directly to ask him to answer calls after hours. Daza repeatedly

told Schmitt he would not answer these calls, but ultimately

agreed to comply with this request. Schmitt issued

Daza a written reprimand for his insubordinate and defiant

behavior.

Still, 2013 was not all bad for Daza. Even with the written

reprimand, Daza received praise in his annual performance

appraisal. The report complimented Daza’s willingness to

help others and his ability to arrive at data‐based solutions.

But it also reflected Daza’s struggles to remain professional

with his colleagues. Daza received an overall performance

rating of “meets expectations” in 2013.

The following year, Daza again defended Goff from alleged

political discrimination. In March 2014, Goff declined to

help snow plow because of a shingles flare up. Schmitt alerted

Daza to this situation, noting that INDOT would both request

a doctor’s note and issue Goff a formal warning that could

lead to disciplinary action. Daza took issue with this treatment

of Goff, and he complained to Cockrum that Goff is “obviously

a target and they are trying to come at him with a

take‐no‐prisoners attitude.”

The same day Daza made this complaint, Nina Daniel, a

Human Resources Manager, emailed another employee about

Daza. In that email, Daniel mentioned that Daza’s supervisor,

Schmitt, had discussed Daza’s behavior with her: Schmitt told

Daniel that Daza’s job knowledge is “one of the best in the

state” but that Daza’s professionalism had been described as

a “cancer on the department.” Daniel’s email also pointed out

that there was “little on [Daza’s] file discipline wise,” but

there was evidence of a pattern of behavior.

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Tensions between Daza and Schmitt continued to run

high. Later that month, in March 2014, Daza emailed

Cockrum expressing discontent with Schmitt. Daza implied

that Schmitt never comes to work and even suggested that

Schmitt should quit. Then Daza took issue directly with

Cockrum, who had recently asked Daza to mentor another

INDOT geologist in a different district. Daza alleged that

Cockrum gave him this task to set him up for future bad evaluations.

Daza expected that his days with INDOT were numbered.

The following month, INDOT hired T.J. Brink, a Republican

City Council member, as Vincennes’s Safety Director.

This hiring, Daza argues, stands in stark contrast to how

INDOT treated Daza. Brink had no experience in safety, and

his only professional experience was as a Director of Business

Development. Yet, Fowler was “anxious” to offer Brink the

position. (Appellant’s Br. at 9.) Fowler just needed to determine

if there was an ethical problem with hiring a current City

Council member. There was not, and Brink was hired.

Over a year later, management again took issue with

Daza’s behavior. On November 22, 2015, Daza’s mother published

a letter to the editor with a regional newspaper, criticizing

then‐Indiana Governor Pence’s position on immigration.

Daza discussed this letter with Cockrum and other

INDOT employees. A few days later, Brink went to Cockrum

with concerns about Daza’s behavior. Brink complained that

Daza checked out a respirator after being told during training

not to use it. Cockrum pointed out the respirator was checked

out before Daza was given this instruction. Still, Brink complained

about Daza’s responses to questions during the

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training. Cockrum met with Daza and warned him not to further

antagonize Brink.

About a week later, on December 1, 2015, Daza attended

the first day of a training class scheduled for multiple days

that month. Daza alleges the trainer did not like him. The

trainer did take issue with Daza’s behavior during the session.

In her notes, the trainer stated that Daza refused to pay

attention and closed his eyes several times, that he refused to

participate in training activities, and that she heard Daza refer

to part of the training as “f_ _ _ _ ing gay.” The trainer’s supervisor

emailed these notes to Human Resources and stated

that she had concerns about Daza attending the second training

class scheduled for December 9.

After receiving this information, Human Resources employees

discussed with Fowler how to move forward with

Daza. Human Resources Manager Daniel noted that Daza’s

past behavior could be considered arrogant and insubordinate.

She said that INDOT had previously terminated a different

employee for a continued pattern of negative behavior.

However, due to a lack of progressive discipline in Daza’s

past, another employee recommended only a three‐to‐fiveday

suspension. In the same discussion, Fowler—who was

the ultimate authority on employment decisions—indicated

that he was ready to proceed with termination.

On December 7, 2015, Daza emailed employees he supervised,

telling them they had been nominated for a bonus

based on their recent work performance. Daza understood

that these bonuses are meant to surprise employees and that

the bonuses could still be denied. But Daza had sent these

emails for years, and Human Resources never took issue with

the practice. This time, Daniel expressed to another employee

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concerns about Daza’s December 7 emails. She questioned

how it would make management look if the bonus was later

denied.

The next day, December 8, 2015, Cockrum notified Daza

that he should not attend the second day of training on December

9. Daza asked for more information but was told to

wait until a December 10 meeting with Fowler.

At the December 10 meeting, Fowler informed Daza his

employment was being terminated. Fowler made this decision

without input from Daza’s supervisor and without allowing

Daza to respond to the allegations against him. Daza

received a memo explaining that he was fired because his behavior

consistently defied INDOT culture and expectations.

The memo recalled his 2013 written reprimand, 2013 performance

appraisal, and behavior during the December 1, 2015

training session.

Daza filed a Charge of Discrimination with the Indiana

Civil Rights Commission. He claimed INDOT discriminated

against him due to his race, color, age, and disability. One day

later, he filed a similar Civil Service Employee Complaint

with the Indiana State Personnel Department.

Daza then initiated this lawsuit in the Southern District of

Indiana, bringing various claims against the State of Indiana,

Fowler, Daniel, and Cockrum. He alleged that he was discriminated

and retaliated against based on his race, color, age, political

speech, and political affiliation. Specifically, Daza

brought claims under 42 U.S.C. §§ 1981, 1983; the First and

Fourteenth Amendments; the Age Discrimination and Employment

Act, 29 U.S.C. § 621 et seq.; and the Americans with

Disabilities Act, 42 U.S.C. § 12101 et seq. The defendants

8 No. 18‐3102

moved for, and the court granted, summary judgment on all

counts.

Daza appealed the district court’s grant of summary judgment

to the defendants on his § 1983 political‐discrimination

and political‐retaliation claims.

II. ANALYSIS

Summary judgment is appropriate when there is no dispute

of material fact and the movant is entitled to judgment

as a matter of law. Fed. R. Civ. P. 56(a). We review grants of

summary judgment de novo and construe all facts and reasonable

inferences in a light most favorable to the nonmoving

party. Monroe v. Ind. Dep’t of Transp., 871 F.3d 495, 503 (7th Cir.

2017). But this “favor toward the nonmoving party does not

extend to drawing ‘inferences that are supported by only

speculation or conjecture.’” Argyropoulos v. City of Alton, 539

F.3d 724, 732 (7th Cir. 2008) (quoting Fischer v. Avanade, Inc.,

519 F.3d 393, 401 (7th Cir. 2008)).

Daza argues that INDOT’s series of acts, culminating in

his firing, amounts to a violation of his First Amendment

rights. The First Amendment prohibits public employers from

firing an employee based on that employee’s constitutionally

protected political conduct. See Elrod v. Burns, 427 U.S. 347,

357 (1976). Daza argues that his employer’s conduct amounts

to both political discrimination and retaliation under the First

Amendment. To establish a prima facie claim of First Amendment

political discrimination, a plaintiff must show: (1) that the

plaintiff’s conduct is constitutionally protected; and (2) that

the protected conduct was a motivating factor in the employer’s

actions. Bisluk v. Hamer, 800 F.3d 928, 933 (7th Cir.

2015). To state a prima facie claim of First Amendment political

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retaliation, the plaintiff must additionally show a deprivation

likely to deter free speech. Yahnke v. Kane Cty., 823 F.3d 1066,

1070 (7th Cir. 2016).

Here, Daza’s discrimination and retaliation claims each

fail because he has not shown that his alleged protected conduct

motivated his firing. We therefore need not decide

whether his defenses of Goff and discussions about his

mother’s letter to the editor are constitutionally protected

and—for his retaliation claim—whether he suffered a deprivation

likely to deter free speech.

To show that protected conduct was a motivating factor in

the employer’s action, a plaintiff must demonstrate a causal

connection between the conduct and the employer’s action.

Graber v. Clarke, 763 F.3d 888, 899 (7th Cir. 2014). As a threshold

matter, the plaintiff must show that the defendant was

aware of the protected conduct. See Hall v. Babb, 389 F.3d 758,

762 (7th Cir. 2004). If the defendant was aware of the conduct,

a causal connection can then be demonstrated by suspicious

timing alone only when the employer’s action follows on the

close heels of protected expression. Lalvani v. Cook Cty., 269

F.3d 785, 790 (7th Cir. 2001) (“As the time separating the protected

conduct and the adverse employment action grows, the

causal inference weakens and eventually time becomes the

plaintiff’s enemy.”). For an employer’s actions to be on the

close heels of an employee’s conduct, thus allowing an inference

of causation based on timing alone, we “typically allow

no more than a few days to elapse.” Kidwell v. Eisenhauer, 679

F.3d 957, 966 (7th Cir. 2012). But this is a context‐specific analysis

with no formal legal rule. Id.

When suspicious timing alone is insufficient to carry the

plaintiff’s burden, a plaintiff may “survive summary

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judgment if there is other evidence that supports the inference

of a causal link.” Culver v. Gorman & Co., 416 F.3d 540, 546 (7th

Cir. 2005).

In an attempt to satisfy this burden, Daza alleges political

discrimination and retaliation spanning four years. Daza

claims that his mistreatment began two years after Republicans

Woodruff and Fowler became leaders in the Vincennes

District. After years without any incidents, Daza believes

three protected political acts motivated his firing: (1) his defenses

of Goff, a Democrat he supervised, (2) his mother’s letter

to the editor criticizing a Republican Governor, and (3) his

status as a Democrat. Daza claims that complaints about his

behavior occurred after, and because of, his alleged political

activities during this time. But for the reasons discussed below,

the evidence does not demonstrate that Daza’s alleged

protected political activities were a motivating factor in his

firing. Consequently, Daza has failed to satisfy his burden on

an element of his claims.

A. Defenses of Goff

First, Daza has failed to connect his defenses of Goff to his

firing. He argues that his two separate defenses of Goff were

a motivating factor in Fowler’s decision to terminate his employment.

Daza defended Goff from perceived political discrimination

in August 2011 and again in March 2014 when Goff refused

to snow plow because of shingles. Daza was fired December

10, 2015, more than a year after his most recent defense

of Goff, and four years after his first defense of Goff.

Daza’s firing occurred well after both events, not on the close

heels of them. Lalvani, 269 F.3d at 790. And Daza offers no

No. 18‐3102 11

additional evidence showing these acts motivated his firing.

The memo explaining Daza’s firing, as well as internal communications,

did not mention these occurrences. In fact, his

defenses of Goff never led to disciplinary action. Time is

Daza’s enemy here, and he cannot show that defending Goff

motivated his firing.

B. Letter to the Editor

Daza also has not established that his mother’s letter to the

editor contributed to his firing. Daza alleges that being fired

weeks after discussing his mother’s letter to the editor with

INDOT employees is evidence of a causal connection. He additionally

points out that Cockrum and Fowler did not respond

negatively to Daza’s practice of emailing bonus nominees

until after his mother’s letter to the editor.

But for this theory to have legs, Fowler would need to be

aware of the letter and Daza’s connection to it. See Hall, 389

F.3d at 762. Fowler’s signed declaration states that he did not

learn about Daza’s mother’s letter until after he fired Daza,

and Daza fails to present any contrary evidence. So, as a

threshold matter, Daza fails to show Fowler was aware of this

alleged protected activity. Daza’s mother’s letter to the editor,

and Daza’s discussion of the letter with INDOT employees,

were therefore not a motivating factor in his firing.

C. Political Affiliation

Finally, Daza cannot show his status as a Democrat motivated

his firing. Political affiliation is protected by the First

Amendment. Hagan v. Quinn, 867 F.3d 816, 824 (7th Cir. 2017).

But to prove discrimination based on political affiliation, a

plaintiff must present evidence relevant to the question of

whether the plaintiff’s political affiliation was a motivating

12 No. 18‐3102

factor in their employer’s action. See Brown v. Cty. of Cook, 661

F.3d 333, 336 (7th Cir. 2011).

In Brown, we held that a sergeant in a sheriff’s office failed

to show his political affiliation was a motivating factor in the

sheriff’s decision to not promote him. Id. at 338. We specifically

noted that most of the evidence Brown tendered was irrelevant

to whether the sheriff considered political affiliation

in the decision to not promote Brown. Id. at 336. For example,

Brown presented as evidence of discrimination his ability to

accurately predict upcoming promotions before they were announced.

Id. at 338. But this evidence had nothing to do with

political affiliation, and even suggested that the promotions

were based on objective criteria rather than political party. Id.

Here, Daza claims to have a significant amount of evidence

showing his status as a Democrat motivated his firing.

He argues that his defenses of Goff and his mother’s letter to

the editor, in addition to a long list of other workplace occurrences,

are all evidence that he was fired because of his political

affiliation. The evidence Daza provides in support of this

claim includes: Daza’s various written and verbal complaints

to Cockrum; Fowler’s treatment of Daza compared to the hiring

of Brink; INDOT’s failure to progressively discipline

Daza; Brink’s and Fowler’s complaints about Daza’s behavior

following his mother’s letter to the editor; the trainer’s comments

on Daza’s behavior shortly after his mother’s letter to

the editor; Daniel’s complaint about Daza’s emails, sent on

December 7, 2015, to potential bonus recipients; and Fowler’s

refusal to allow Daza to respond to the allegations against him

before terminating his employment.

But Daza fails to show how any of this evidence relates to

his political affiliation. For example, Daza believes that his

No. 18‐3102 13

various complaints to Cockrum, and her response thanking

him for his honesty, are evidence that he was fired because of

his political affiliation. But Cockrum’s compliment did not

reference Daza’s political affiliation. In fact, none of her communications

with Daza or Fowler ever referenced Daza’s political

affiliation.

Daza also alleges the trainer’s comments on his behavior

at the December 1, 2015 training somehow show that Fowler

terminated him based on his political affiliation. But the

trainer’s notes about Daza refer to specific instances from the

training and do not mention his political party. Nor does the

record show that the trainer was aware of Daza’s political affiliation.

So, it does not follow that the trainer’s notes about

Daza’s behavioral issues caused Fowler to fire Daza for his

political affiliation. The trainer’s notes instead suggest that

Fowler’s decision to fire Daza was based on a series of inappropriate

behavior that culminated in Daza’s offensive comments

at the December 1 training.

Daza similarly believes that Fowler’s refusal to allow Daza

to respond to negative allegations, while affording this opportunity

to other INDOT employees, is evidence of political discrimination.

But Daza does not produce the names of any specific

employees who were given an opportunity to respond to

allegations before they were fired. And Daza provides no evidence

that Fowler decided who can and cannot respond to

allegations based on their political affiliation. Instead, the record

shows Fowler made the decision to proceed with termination

based on his frustrations with how Daza, a supervisor,

consistently failed to comply with INDOT’s behavioral expectations.

14 No. 18‐3102

Daza’s other alleged evidence of discrimination based on

political affiliation meets a similar fate. Daza provides a long

list of occurrences and simply assumes that they happened

because he is a Democrat. But Daza does not present a single

piece of evidence relevant to his political affiliation. Cf. Brown,

661 F.3d at 336. The evidence presented actually shows that

management had taken issue with Daza’s conduct for years,

and the decision to fire him was made after his offensive comments

during the December 1 training. So, Daza has failed to

show that his political affiliation was a motivating factor in his

firing.

All the evidence presented by Daza, viewed as a whole

and in a light most favorable to Daza, fails to satisfy his burden

of proving his alleged protected activities were a motivating

factor in INDOT’s decision to fire him. And because Daza

has failed to meet his burden on the motivating‐factor element—

a necessity for political discrimination and retaliation

claims—we need not address whether he carried his burdens

to show that his defenses of Goff and discussion of his

mother’s letter to the editor are protected by the First Amendment

and (for the retaliation claim) that he suffered a deprivation

likely to deter free speech.

III. CONCLUSION

Daza presented a long string of facts occurring over four

years but presented no evidence that his alleged political activities

or affiliation motivated his firing. So, Daza has failed

to prove an element of his political retaliation and discrimination

claims. The district court correctly granted summary

judgment to the defendants on those claims. We therefore

AFFIRM the judgment of the district court.