Labor & Employment Law Daily Wrap Up, DISCRIMINATION—RACE—S.D. Ind.: Former corrections officer, passed over for promotions as trainee, cannot show bias, (Apr 17, 2025)

By Todd Harrison, J.D.

Shortly after his hire, he had applied several times for a supervisory sergeant role, positions that were subsequently filled by people with more experience.

A former correctional officer for the Indiana Department of Corrections cannot move forward with his Title VII claims for failure to promote, constructive discharge, and retaliation. A federal district court in Indiana determined that the white/Native American officer’s failure to promote claim was one of reverse discrimination and his briefing only addressed whether he belonged to a protected class. As such, he had failed to assert the correct standard or to develop any argument under the standard. Further, he failed to acknowledge either form of constructive discharge identified by the Seventh Circuit, and the fact that he was removed from the employer’s temporary housing after staying for approximately eight months could not support his claim for retaliation (Dove v. Indiana Department of Corrections, No. 1:23-cv-01546-JMS-KMB (S.D. Ind. Apr. 16, 2025)).

The employee in this case is of Caucasian/Native American descent, but typically marks that he is Caucasian when filling out paperwork. He was hired as a correctional officer trainee in July 2021 at an Indiana Department of Corrections (IDOC) location in Pendleton, Indiana. At the time, the employee lived in Lansing, Michigan, and was aware that his commute would take more than three hours each way.

Previous experience. Prior to his hire, the employee had served in the Michigan National Guard from September 2004 to March 2012, and had worked as a supervisor at General Motors from March 2019 to January 2020.

Temporary housing. Before accepting the position, the employee had inquired about staff housing due to his long commute. He was told temporary housing was available during his training, but that he would eventually have to find a more permanent living arrangement.

Correctional sergeant openings. On August 24, 2021, the employee, still classified as a trainee, applied for a correctional sergeant opening. A multi-racial man was ultimately hired for the position. He continued to apply for such positions and was passed over in favor of other hires every time, leading him to file complaints on at least two occasions.

Restricted housing unit. At some point in January 2022, the employee was assigned to work in a restricted housing unit where he suffered abuse from inmates. His assignment to this unit remained unchanged for the rest of his employment.

Temporary housing stay ends. On February 23, 2022, the employee was told that his stay in temporary housing would come to an end on March 1.

Chain O’Lakes. After the employee was passed over for a position at the employer’s Chain O’Lakes facility, a shorter commute for the employee, he emailed staff on March 14, 2022, to inquire why he was not selected. The warden explained that the facility had chosen a person that it felt was a better fit for the team.

Resignation. That same day, the employee submitted his two-week’s notice, expressing his frustration at being “forced out” of temporary housing and his lengthy commute, despite the employer’s multiple offers to transfer the employee to IDOC Westville or the Indiana State Prison, both of which are located in Northwest Indiana. Subsequently, the employee filed this lawsuit asserting Title VII claims for failure to promote due to race, constructive discharge and engaging in protected activity, and retaliation. The court addressed each argument in turn.

Failure to promote. The employee’s failure to promote claim was one of reverse discrimination based on the fact the employee is white, explained the court. However, the employee appeared to have misunderstood the legal standard for asserting a reverse discrimination claim, said the court.

According to the employee’s brief, he only addressed whether he belonged to a protected class—a requirement relevant to traditional racial discrimination claims. However, he failed to argue that IDOC "had reason or inclination to discriminate invidiously" against white people or that other suspicious circumstances drove the employer’s decisions. As a result, continued the court, the employee waived any argument regarding this element due to not asserting the correct standard nor developing an argument under it.

Even setting aside this waiver, the court found it could still reject the employee’s claim because it failed on the merits with respect to the remaining disputed elements.

Qualifications. As to whether the employee was qualified to be a correctional sergeant, the court found he had failed to produce sufficient evidence to show that he was qualified. When he first applied, he was still a trainee who had been working in his position for one month. Further, the employee had twice admitted that he did not expect to be selected and had accepted that his military experience did not translate as sufficient requisite experience to qualify for the position. Based on this evidence, no reasonable jury could conclude that the employee was qualified to be a correctional sergeant, said the court.

Other hires. Even if the employee was qualified, he failed to adduce evidence that the positions went to hires who were similarly or less quailed than he was. One such hire, a Hispanic woman, had been employed as a corrections officer for 15 months longer than the employee. Accordingly, the court granted summary judgment against the employee’s failure-to-promote claim.

Constructive discharge. Turning to the employee’s constructive discharge claims, the court noted that the Seventh Circuit recognizes two forms of constructive discharge: (1) when an employee resigns due to discriminatory harassment; and (2) when an employer had acted in a manner that would lead a reasonable employee to assume that they are about to be fired.

In this instance, the court stated that the employee had appeared to misunderstand the constructive discharge theory of liability. He had argued that all he had to show was that his working conditions were so intolerable that a reasonable person would be left with no choice but to resign. However, this argument failed to address either form of constructive discharge as set forth by the Seventh Circuit, explained the court.

Discriminatory harassment. Looking to the first form, the court found no evidence that the employee’s race or protected activity influenced his temporary housing arrangement or his assignment to the restricted housing unit. Further, IDOC’s temporary housing team remained in constant contact with the employee, assessing his progress towards securing permanent housing, making it clear that IDOC operated transparently and without discriminatory intent.

As to his assignment to the restricted housing unit, the employee never asserted that he filed a complaint or had requested a transfer, nor did he present any evidence that his assignment was based on his race or protected activity.

Anticipated termination. With regard to the second form of constructive discharge—resignation in anticipation of termination—the employee had failed to produce any evidence that an axe was about to fall. Instead, the evidence revealed that the employee had resigned because of his lengthy commute. In addition, IDOC had offered the employee several positions closer to his home. Accordingly, summary judgment was granted as to the constructive discharge claims based on race and protected activity.

Retaliation. Finally, the court found the employee had failed to produce evidence to survive summary judgment on his retaliation claim. Although he was notified on February 23 that he would have to vacate his temporary housing at the end of the month, which occurred nearly one month after he had filed a complaint alleging racial discrimination, timing alone was insufficient to prove retaliatory intent, said the court. Further, the employer had proffered a nonretaliatory reason for its decision—the housing was always meant to be temporary and the employee had resided there for approximately eight months.

As to the employee’s contention that the employer retaliated against him for refusing to transfer him to another facility, this argument was undercut by the fact that the employer had offered to transfer him to facilities closer to his residence, although not to his preferred location at Chain O’Lakes. Accordingly, no reasonable jury could conclude that race had motivated any of the employer’s decisions, concluded the court.

The case is No. 1:23-cv-01546-JMS-KMB.

Judge: Magnus-Stinson, J.

Attorneys: Amber K. Boyd (Law Offices of Amber K. Boyd) for Daniel Dove. Alexander Robert Carlisle, Office of the Attorney General, for Indiana Department of Corrections.

Cases: Discrimination RaceDiscrimination Discharge PublicEmployees Retaliation IndianaNews