Labor & Employment Law Daily Wrap Up, DISCRIMINATION—N.D. Ind.: White male deputy warden demoted after inmate deaths advances bias claims, (May 6, 2026)

By Kathleen Kapusta, J.D.

The deputy warden’s supervisor claimed he was scapegoated because of his racial identity and gender.

The Indiana Department of Corrections (IDOC) must face trial on the Title VII race and sex discrimination claims of a white deputy warden who was demoted after the deaths of several inmates at the facility to which he had been recently assigned while his counterpart, a Black female deputy warden, was transferred but not demoted, a federal court in Indiana ruled, denying IDOC’s motion for summary judgment. Amongst other evidence, the court pointed to testimony from the former warden that IDOC was worried about its “look” when it came to “diversity and inclusion” and that the white male deputy warden was scapegoated because it did not want to demote a Black woman (Payne v. Indiana Department of Corrections, No. 3:23-CV-909-CCB-SJF (N.D. Ind. May 4, 2026)).

A correctional officer with IDOC since 1991, the employee was promoted several times, ultimately reaching the rank of deputy warden in 2015. IDOC typically assigns two deputy wardens to each facility—a deputy warden of operations, who focuses on custody staff, food service schedules, recreation schedules, and day-to-day operations, and a deputy warden of re-entry, who focuses on programs, case planning, offender services, and rehabilitation.

Violent facility. For the next several years, the employee worked in both deputy warden positions at different facilities. In 2019, he was transferred to a violent prison where he served as the deputy warden of operations. Sometime around March 2021, a Black woman became the deputy warden of re-entry.

Deaths. In early May 2022, the facility’s warden took leave for a personal family matter. During part of that time, the employee was also out for personal reasons, leaving the other deputy warden as the acting warden and sole administrator at the facility. In the summer of 2022, while the warden was still on leave, there were several inmate deaths, including two inmates who were stabbed to death and another who was linked to drugs. Shortly before the deaths, the employee and his colleague switched roles with the employee becoming the deputy warden of re-entry and his colleague transitioning to operations.

Investigation. IDOC investigated the deaths, prepared an assessment based on its investigation, and assigned two temporary administrators to the facility. It also demoted the employee to correctional officer and ultimately placed him in construction services with no opportunity for promotion. His colleague, who maintained her deputy warden position, was placed on a work improvement plan and transferred to another facility.

Complaints. During his time at the violent facility, the warden had received oral complaints about the employee, which he dismissed as “low-grade bellyaching” resulting from the employee’s attempts to hold the staff accountable. One of the facility’s temporary administrators characterized the employee’s demotion as “egregious” and “over-the-top.”

Legitimate expectations. In support of its motion for summary judgment against the employee’s race and sex discrimination claims, IDOC, pointing to the investigative team’s assessment, argued that the employee could not show he was meeting its legitimate expectations. For his part, the employee argued that the assessment, which contained summaries of staff interviews in which employees expressed dissatisfaction with him, was inadmissible hearsay.

While IDOC argued that the assessment was not being offered to prove the truth of the statements contained within it but rather to show what it relied on in deciding to demote the employee, he countered that it was offered not to show the information available to IDOC decisionmakers but to show that he was in fact not meeting legitimate expectations.

But if the assessment was merely evidence of what information IDOC had at the time it decided to demote the employee, it would, said the court, only offer insight into whether it believed he was meeting expectations when it decided to demote him, which was not the inquiry. Rather, in order to make out a prima facie case, a plaintiff must show he was meeting legitimate employer expectations, not that the decisionmakers were aware he was meeting expectations and imposed an adverse employment action anyway.

On the other hand, the court reasoned, if it was offered as evidence the employee was actually failing to meet IDOC’s legitimate expectations, “it becomes difficult to argue that the Assessment is not being offered for the truth of the matters asserted within.” The assessment, the court continued, “only holds evidentiary value on this issue if it is true that [the employee] did ‘not listen or communicate well with most staff,’ was prone to ‘outbursts,’ and was ‘running people off from working at the facility.’” But because these statements were made out of court and were relied on here for their truth, the court found they were hearsay.

Business records exception. As to IDOC’s assertion the statements were admissible under the business records exception to the hearsay rule, the court pointed out that to qualify for this exception, documents must have been made in the regular course of business and documents “prepared in anticipation of litigation” are not admissible under this exception. Given that the assessment was drafted by IDOC’s legal counsel after several inmate deaths and with the “secondary purpose” of offering recommendations for the future employment of IDOC staff at the facility, the court found it unlikely the assessment was produced in the regular course of business.

Declining to reach a determination on this issue, the court found that even if the assessment was admissible, the employee nonetheless created a genuine issue of fact over whether he was meeting IDOC’s legitimate expectations. Specifically, he pointed to the warden’s testimony that the complaints against him were “low grade bellyaching” arising from his attempts to hold staff accountable, he was “trying to get [staff] out of their old habits,” his work was “exceptional,” and he “did exactly what he was told, when he was told.”

While IDOC argued that a jury could find credibility issues with the warden’s testimony given that he retired as a result of the investigation, the court pointed out that IDOC had to show that no reasonable jury could credit his testimony, a high bar it failed to meet. That the warden did receive oral complaints about the employee was not remotely dispositive of whether the employee met IDOC’s legitimate expectations, said the court, noting that it did not have to strain to reach an explanation for why the warden, as the employee’s supervisor, and the staff the employee was tasked with bringing in line might have different opinions of his job performance.

The employee also pointed to the testimony of the acting deputy commissioner who called the employee’s demotion “egregious” and “over the top” as well as the testimony of a former IDOC commissioner that he had no reason to believe the employee’s performance was deficient. Though their testimony did not create a genuine issue over whether the employee met IDOC’s legitimate expectations, the addition of the director’s testimony was enough, said the court, finding this issue inappropriate for resolution at summary judgment.

Similarly situated. IDOC next argued that the employee’s colleague, who retained her rank when he was demoted, was not an adequate comparator. Even though they were both deputy wardens and both reported to the same supervisor, IDOC argued that the employee had 16 more years or experience working there, including six more years of experience working as a deputy warden. Disagreeing, the court found that her comparative lack of experience was not enough to eliminate any genuine issue of material fact over whether she was an adequate comparator.

Pretext. Finally, while IDOC argued that it demoted the employee because he failed to effectively manage his subordinates, as detailed in the assessment, the court found sufficient evidence of pretext so as to preclude summary judgment. Here, the employee pointed to the warden’s testimony that his “35 years” in the IDOC system taught him that IDOC was worried about its “look” when it came to “diversity and inclusion” and that he believed IDOC “didn’t want to mess” with the employee’s colleague “because... she’s a black female,” so it made the employee a “scapegoat.” The employee also pointed, again, to the testimony that his performance was not deficient.

He further argued that the circumstances around his demotion were suspicious as IDOC, in its interrogatory response, claimed the former commissioner demoted the employee. The former commissioner, however, testified that he was not involved in the demotion, which would have been handled by a deputy commissioner. While IDOC argued that any dispute over who actually demoted the employee was immaterial because IDOC was the only defendant, the court pointed out that the inquiry is whether the employee was demoted for discriminatory reasons and the identity of that person is material to that question because the case turns on whether that person’s intent was discriminatory.

Nor, said the court, could the warden’s testimony be discounted because, as IDOC argued, it was vague and conclusive. Rather, his opinions were based on his 35 years of experience within IDOC and because of that experience, a reasonable jury could believe his testimony that IDOC used the employee as a “scapegoat” to avoid messing with his colleague, a Black woman.

The court also found the former commissioner’s disavowal of any responsibility for the employee’s demotion provided evidence of pretext. Moreover, the warden’s testimony offered an alternative explanation: IDOC needed to blame someone for the problems at the facility and it did not want to demote a Black woman. So the employee, a white man already unpopular among the staff due to his strictness, was scapegoated because of his racial identity and gender. “Though a jury may well decline to draw this inference against IDOC or credit [the warden’s] alternative explanation, there are sufficient factual disputes present that IDOC may not prevail on this issue as a matter of law,” said the court, denying IDOC’s motion for summary judgment.

The case is No. 3:23-CV-909-CCB-SJF.

Judge: Brisco, C.

Attorneys: Thaddeus M. Keefer (Cleveland Lehner Cassidy) for George Payne, Jr. E. Ryan Shouse (Lewis and Wilkins) for Indiana Department of Corrections.

Companies: Indiana Department of Corrections

Cases: Discrimination RaceDiscrimination SexDiscrimination Discharge EvidenceDiscovery IndianaNews