Case 1:18-cv-02475-TWP-DLP Document 123 Filed 09/21/20 Page 1 of 24 PageID #: 549

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

HARRY KEVIN WADE, )

)
Plaintiff, )
)
v. )
) CASE NO. 1:18-cv-2475-TWP-DLP
)
INDIANA DEPARTMENT OF CHILD )
SERVICES, et al., )
)
Defendants. )

MEMORANDUM IN SUPPORT OF DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT

I. Introduction

Every year, more than 200,000 complaints regarding potential child abuse

and neglect come into the hotline of the Indiana Department of Child Services

(“DCS”). DCS employees handle a rolling caseload of approximately 20,000 open

cases at any one time and are the primary agency responsible for the safety and

welfare of Hoosier children. To accomplish this enormous mission, DCS contracts

with hundreds of outside contractors to provide the necessary services to Indiana’s

most vulnerable children. Those contractors agree to adhere to certain standards set

forth by DCS, including provisions that transgender children will be treated in a

safe, supportive, respectful, and non-judgmental manner, irrespective of the

personal views any contractor may have.

In this case, Plaintiff Harry Wade has sued several DCS employees for trying

to effectuate that very mission. In early 2018, DCS determined that family centered
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therapy should be provided to a transgender child and his parents, and referred the

case to Lifeline Youth and Family Services, Inc. (“Lifeline”), a DCS contractor, to

assign a therapist. Plaintiff, an employee of Lifeline, was assigned to the case. But

shortly after being assigned, Plaintiff told the DCS family case manager that he

was a Christian minister, didn’t understand transgender individuals, and noted

that it would be difficult for him to provide services to the child and family without

expressing his personal views to them. This violated the contract DCS had with

Lifeline, and DCS subsequently informed Lifeline via letter that Plaintiff would no

longer be permitted to provide services to DCS clients. By the time the letter was

sent by DCS, Lifeline had terminated Plaintiff’s employment.

Plaintiff then brought suit, alleging that the private conversation he had with

DCS family case manager Kelly McSween was protected by the First Amendment

and that DCS’s act of prohibiting him from servicing DCS clients was unlawful

retaliation.1 Several of the employees sued—McSween, Decker, May, and Stigdon—

had no personal involvement in the decision to prohibit Wade from providing

services to DCS clients at all, and so Plaintiff’s §1983 suit against them fails before

it even begins. As to the remaining Defendants, Plaintiff admits in his complaint

that the statements he made to McSween were done in the course of his

employment as an employee of Lifeline and as a contractor for DCS. Because his

speech wasn’t as a citizen about a matter of public concern, his First Amendment

retaliation claim fails as well.

1
Wade also alleged that this decision violated his right to Due Process of Law under the 14 th Amendment, but the
Court dismissed this claim. [ECF 93.]

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II. Statement of Material Facts Not in Dispute

a. Information about DCS and its contract with Lifeline Youth

and Family Services, Inc.

The Indiana Department of Child Services receives more than 200,000

complaints of suspected child abuse or neglect to its hotline every year, resulting in

approximately 20,000 open cases at any one time. [Exhibit A, Declaration of David

Reed, ¶¶ 5-6.] To help service those children and families in need, DCS contracts

with hundreds of non-governmental child welfare service providers. [Ex. A, ¶9.] As

part of those contracts, DCS frequently refers clients to the contractors to provide

services such as counseling or therapy. [Ex. A, ¶9.]

In January of 2018, DCS had a contract with Lifeline to provide certain services,

including family therapy. [Ex. A, ¶10; Exhibit E, Contract with Lifeline, p. 23,

¶(c)(1).] The contract specifies that Lifeline will provide services according to the

Community Based Services RFP, the most current version of DCS’s service

standards, and the most current version of DCS’s Principles of Child Welfare

Services. [Ex. E, p. 1-2, ¶B.] Attachment G of the Community Based Services RFP

deals with assurances that Lifeline had to make to DCS to enter into the contract.

[Ex. A, ¶14; Exhibit F, Assurances Document attachment to Lifeline Contract.] The

assurances document provides the following:

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[Ex. F, p. 3, ¶22.] The Assurances document also provides a link to the DCS LGBTQ

Practice Guidebook. [Id.] The guidebook states:

[Ex. A, ¶16.]

When DCS refers a case to Lifeline, the contract specifies that “[t]he

Contractor explicitly agrees that it will only accept referrals for which it has

adequate staff and any required credentials at the time of the referral.” [Ex. E, p. 3,

¶D]. This provision in the contract ensures Lifeline may decline a referral from DCS

in the event it does not have adequate or appropriate staff to handle the referral.

[Ex. A, ¶18.] If Lifeline were to decline a DCS referral, DCS would then be able to

refer the case to another child welfare contractor. [Ex. A, ¶19.] If, however, Lifeline

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accepts the referral, they have explicitly agreed that they have adequate staff to

handle the referral in accordance with the contract, including abiding by the

Community Based Services RFP, the Assurances document, and the LGBTQ

Practice Guidebook. [Ex. A, ¶20.] Once a referral is accepted, Lifeline selects a

therapist from their staff to provide services to a child and his or her family. [Ex. A,

¶21.] Because Lifeline controls which therapist is selected for any individual case,

DCS sets forth the criteria in the Assurances document and the LGBTQ Practice

Guidebook to ensure that LGBTQ youth who are in need of services receive services

that are objective, effective, non-discriminatory, and free of personal bias. [Ex. A,

¶22.] It would not be feasible for DCS to attempt to screen non-employees for each

of their potential personal biases and determine whether those personal biases may

conflict with the services a particular child or family requires. [Ex. A, ¶23.] DCS’s

policy, embodied in the contract, is plain: contractors’ employees shall provide

services in a non-discriminatory manner, free from any bias from their personal

views. [Ex. A, ¶24.]

Under the contract, Lifeline is responsible for ensuring that their employees

conform to the professional and technical guidelines and standards applicable to all

services and programs that Lifeline provides. [Ex. A, ¶25; Ex. E, p. 35, ¶49.] And

the contract specifies that in the event DCS “becomes dissatisfied with the work

product of or the working relationship with [an employee] assigned to work on [the]

contract and/or those individuals assigned to provide any of the services pursuant to

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[the] contract, [DCS] may request in writing the replacement of any or all such

individuals, and the Contractor shall grant such request.” [Id.]

b. The incident involving the Plaintiff and his prohibition from

further involvement in DCS cases

In late 2017 or early 2018, DCS opened a case into the potential abuse or

neglect of K.L., a transgender child. [Exhibit B, Declaration of McSween, ¶¶ 5-6.]

Defendant Kelly McSween, a DCS Family Case Manager, was assigned to the case.

[Ex. B, ¶5.] McSween and her team determined that Family Centered Therapy

would be an appropriate course of treatment for K.L. and his family. [Ex. B, ¶7.]

DCS referred the case to Lifeline, who accepted the referral and assigned Plaintiff

Kevin Wade to the case. [Ex. B, ¶11.] In January of 2018, McSween had a

conversation with Plaintiff about K.L.’s case. [Ex. B, ¶12.] Plaintiff indicated to

McSween that he was a Christian Minister and that he did not understand

transgender individuals. [Id.] Plaintiff further stated that he did not agree with the

transgender lifestyle and that he thought it would be difficult for him to provide

services to K.L. and his family without expressing his personal views to them. [Ex.

B, ¶13.] McSween informed her supervisor, Sarah Sutton, of the conversation that

she had with Plaintiff. [Ex. B, ¶14.] Sutton relayed the conversation to Defendant

Heidi Decker, the DCS Local Office Manager for Vigo County. [Exhibit C,

Declaration of Heidi Decker, ¶14.] McSween, Sutton, and Decker decided it would

be inappropriate to have Plaintiff provide services to K.L. and his family. [Ex. B,

¶14; Ex. C, ¶15.] McSween had no further involvement in any decision regarding

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Plaintiff. [Ex. B, ¶15.] She was not consulted and took no part of the decision of

DCS to prohibit Mr. Wade from providing services to DCS clients, and did not even

have knowledge of that decision until after it was made and Plaintiff’s employment

had been terminated by Lifeline. [Ex. B, ¶16.]

Following McSween, Sutton, and Decker’s decision to not have Plaintiff

provide services to K.L. and his family, Decker asked Sutton to inform Defendant

Kristina Killen, the DCS Child Welfare Services Manager and Regional Service

Coordinator, of the conversation that occurred between McSween and Plaintiff. [Ex.

C, ¶16.] Killen was responsible for addressing any issues that arose with outside

service providers, such as Lifeline, in the DCS region that included Vigo County.

[Ex. C, ¶17.] Sutton informed Killen about the conversation between McSween and

Plaintiff. [Ex. C, ¶18.] After asking Sutton to inform Killen about the

circumstances, Decker had no further involvement in any decision regarding

Plaintiff. [Ex. C, ¶19.] Decker was copied (“cc’d”) on various emails about Mr. Wade

between numerous DCS and Lifeline employees following the conversation between

McSween and Plaintiff in January of 2018, but she had no substantive involvement

in those email conversations before the decision of DCS was made to send a letter to

Lifeline indicating that Mr. Wade was no longer permitted to work with DCS

clients. [Ex. C, ¶20.] Decker did not become aware of the decision of DCS until she

received an email from Killen on January 25, 2018, at 10:14 a.m. indicating that

Mr. Wade’s employment with Lifeline had been terminated and that DCS was

sending a letter to Lifeline. [Ex. C, ¶22.]

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After Sutton informed Killen of the conversation between McSween and

Plaintiff, Killen contacted Jeremiah Brown at Lifeline via email. [Ex. A, ¶37;

Exhibit G, Email to Lifeline.] Around January 22, 2018, Killen talked to Defendant

Sarah Sparks—her direct supervisor—and Defendant David Reed—Sparks’ direct

supervisor. [Ex. A, ¶¶ 38-39.] After discussing the incident and consulting with DCS

legal counsel, Reed, Sparks, and Killen decided that Plaintiff would no longer be

permitted to provide services to DCS clients under paragraph 49 of the contract

with Lifeline. [Ex. A, ¶40; Ex. E, p. 35, ¶49.]

This decision was made because the Plaintiff indicated that he could not

provide services to certain DCS clients—specifically transgender clients—without

expressing his personal views or having his personal views interfere with the

patient\therapist relationship. [Ex. A, ¶41.] In the opinion of Reed, Sparks, and

Killen, Plaintiff’s view of transgender individuals directly conflicts with the contract

DCS maintains with Lifeline, which states that “service providers will provide a

culturally competent, safe, and supportive environment for all youth regardless of

sexual orientation.” [Ex. A, ¶42; Ex. F, p. 3, ¶22]. Plaintiff’s views also directly

conflicts with the contract DCS maintains with Lifeline in that his view is contrary

to the Guidebook for Best Practices with LGBTQ Youth, which provides that, “It is

the expectation that providers and staff treat all individuals and families

respectfully and nonjudgmentally, irrespective of one’s personal views of sexual

orientation and/or gender identity.” [Ex. A, ¶43;

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https://www.in.gov/dcs/files/GuidebookforBestPracticeswithLGBTQYouth.pdf.]

(emphasis added).

Killen received an email from Mr. Brown at Lifeline on Wednesday, January

24, 2018, indicating that Plaintiff was no longer an employee of Lifeline. [Ex. A,

¶44.] DCS sent a letter to Lifeline on January 25, 2018, reflecting its decision to

prohibit Plaintiff from working with DCS clients in the future. [Exhibit H, DCS

Letter.] DCS never requested that Lifeline take any employment action against

Plaintiff other than prohibiting him from being assigned to DCS cases. [Ex. A, ¶¶

46-47; Ex. H.]

Defendant Jacob May was legal counsel for DCS at the time of allegations in

the operative complaint. [Exhibit D, Declaration of Jacob May, ¶3.] Because DCS

has not waived the attorney-client privilege, Mr. May’s personal involvement in this

case is unknown to the Plaintiff and, absent waiver by DCS, will remain unknown.

[Ex. D, ¶5.]

Defendant Terry Stigdon, Director of DCS, took no part in the decision

regarding Plaintiff and only became aware of the decision to prohibit him from

providing services to DCS clients after it was made. [Exhibit I, Declaration of Terry

Stigdon, ¶¶ 4-5.]

III. Summary Judgment Standard

Rule 56(a) of the Federal Rules of Civil Procedure allows a party to move for

summary judgment if he can demonstrate to the court that there is no genuine issue

of material fact and that the moving party is entitled to judgment in his favor as a

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matter of law. Fed. R. Civ. P. 56(a). “As stated by the Supreme Court, summary

judgment is not a disfavored procedural shortcut, but rather is an integral part of

the federal rules as a whole, which are designed to secure the just, speedy, and

inexpensive determination of every action.” Harney v. Speedway SuperAmerica,

LLC, 526 F.3d 1099, 1103 (7th Cir. 2008) (citations omitted). The substantive law

underlying the claim defines which facts are material, and the Court should only

refrain from granting the motion where there are “disputes over facts that might

affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby

Inc., 477 U.S. 242, 248 (1986).

“A party asserting that a fact cannot be or is genuinely disputed must

support the assertion by: (A) citing to particular parts or materials in the record,

including depositions, documents, electronically stored information, affidavits or

declarations, stipulations (including those made for purposes of the motion only),

admissions, interrogatory answers, or other materials; or (B) showing that the

materials cited do not establish the absence or presence of a genuine dispute, or

that an adverse party cannot produce admissible evidence to support the fact.” Fed.

R. Civ. P. 56(c)(1). “An affidavit or declaration used to support or oppose a motion

must be made on personal knowledge, set out facts that would be admissible in

evidence, and show that the affiant or declarant is competent to testify on the

matters stated.” Fed. R. Civ. P. 56(c)(4).

At the summary judgment stage, a movant must present evidence—as

opposed to mere allegations or promises of evidence to be produced in the future—

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that would allow a reasonable trier of fact to rule in his favor. “[M]otions for

summary judgment must be decided on the record as it stands, not on a litigant’s

visions of what the facts might someday reveal.” Maldonado Denis v. Castillo

Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994).

IV. Argument

a. Defendants McSween, Decker, May, and Stigdon did not have

the personal involvement required for liability under §1983

Plaintiff brings his First Amendment claim against all Defendants under 42

U.S.C. §1983. “Section 1983 is not itself a source of substantive rights, but merely

provides a method for vindicating federal rights elsewhere conferred.” Albright v.

Oliver, 510 U.S. 266, 271 (1994) (internal citations omitted). “Individual liability

pursuant to § 1983 requires personal involvement in the alleged constitutional

deprivation. The plaintiff must demonstrate a causal connection between (1) the

sued officials and (2) the alleged misconduct.” Carmody v. Bd. of Trustees of Univ. of

Illinois, 893 F.3d 397, 401 (7th Cir. 2018) (emphasis added) (internal citations

omitted).

In this case, the misconduct that Plaintiff alleges is that he was prohibited

from having any contact or being able to provide any counseling services to any DCS

clients, as evidenced by the letter DCS sent to Lifeline. See [Plaintiff’s Third

Amended Complaint, ECF 87, ¶¶ 33-34; Ex. H.] But as evidenced by the sworn

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statements in this matter, Defendants McSween, Decker, May, and Stigdon had no

personal involvement in “alleged misconduct” complained of by the Plaintiff.2

Defendant McSween relayed the conversation that she had with Plaintiff to

her supervisor, Sarah Sutton, and McSween, Sutton, and Defendant Decker decided

that Plaintiff should not be assigned to the case involving K.L. [Ex. B, ¶14.]

However, Defendant McSween had no further involvement in any decisions

regarding Mr. Wade and did not even know about DCS’s decision regarding Mr.

Wade until after it occurred. [Ex. B, ¶¶ 15-16.]

Defendant Decker decided with Defendant McSween and Sarah Sutton to not

have the Plaintiff provide counseling to K.L. and his family. [Ex. C, ¶15.] Defendant

Decker also asked Sutton to tell Defendant Killen what had occurred. [Ex. C, ¶16.]

But Defendant Decker did not have any substantive involvement in the decision to

prohibit Mr. Wade from providing services to DCS clients, was not consulted

regarding this decision, and did not become aware that the decision had been made

until after Lifeline had already terminated Plaintiff’s employment. [Ex. C, ¶¶ 19-

22.]

Defendant May was legal counsel for DCS at the time of the allegations in

the complaint. [Ex. D, ¶¶ 3-4.] DCS has not waived the attorney-client privilege as

to any involvement, decisions, or advice provided by Defendant May, and, absent

waiver, Plaintiff will be unable to show any personal involvement by Defendant

May.

2
Defendant May does not affirmatively allege he was not involved in any decision made in this case, but instead
states that his involvement, if any, is unknown to Plaintiff and protected by attorney/client privilege.

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Defendant Stigdon is the Director of DCS. [Ex. I, ¶2.] She took no part in the

decision to prohibit Plaintiff from providing services to DCS clients or sending the

prohibition letter to Lifeline. [Ex. I, ¶5.] That decision was handled by Deputy

Director David Reed and his staff. [Id.] She became aware of the events involving

Plaintiff only after they occurred. [Ex. I, ¶4.]

Plaintiff cannot demonstrate a causal connection between Defendants

McSween, Decker, May, or Stigdon and the misconduct he alleges: prohibiting him

from further contact with DCS clients. As noted above, McSween, Decker, and

Stigdon did not request, were not consulted about, and played no part in the

decision to prohibit Plaintiff from providing services to DCS clients. In fact, all of

these Defendants only learned about this action after it had occurred. Absent

evidence to the contrary, Plaintiff cannot show that these Defendants had the

requisite “personal involvement” to support §1983 liability. Further, the case

against Defendant May is untenable: Plaintiff can show no personal, causal

involvement because any evidence is protected by the attorney-client privilege. The

best Plaintiff can produce is that Defendant May was “cc’d” on the letter to Lifeline,

[Ex. H], and that he was involved in various emails that have been provided to the

Plaintiff but are redacted.

Based on the foregoing, Defendants McSween, Decker, May, and Stigdon

should be granted summary judgment because they lacked the personal

involvement necessary for §1983 liability.

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b. Connick, Pickering, and Garcetti control whether speech made

by a public employee or contractor is protected under the First

Amendment

In Pickering, the Supreme Court held that public employees do not

relinquish their constitutional rights to speak as citizens on issues of public concern

solely because of their employment. Pickering v. Bd. of Ed. of Twp. High Sch. Dist.

205, Will Cty., Illinois, 391 U.S. 563, 568 (1968). Pickering was a public school

teacher who was dismissed from his position after he had written a letter to the

local newspaper that was critical of the board of education and the district

superintendent. Id. at 564. The Court held that the letter was regarding a “matter

of legitimate public concern” upon which “free and open debate is vital to informed

decision-making by the electorate,” and determined that Pickering’s firing violated

the First Amendment. Id. at 571-572.

Pickering and its progeny enumerated a two-part inquiry to guide the

interpretation of First Amendment protections given to public employee speech.

“The first [part] requires determining whether the employee spoke as a citizen on a

matter of public concern. If the answer is no, the employee has no First Amendment

cause of action based on his or her employer's reaction to the speech. If the answer

is yes, then the possibility of a First Amendment claim arises. The question becomes

whether the relevant government entity had an adequate justification for treating

the employee differently from any other member of the general public.” Garcetti v.

Ceballos, 547 U.S. 410, 418 (2006) (internal citations omitted). And as to whether

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an employees’ speech is protected when it is made at work, Garcetti held that “when

public employees make statements pursuant to their official duties, the employees

are not speaking as citizens for First Amendment purposes, and the Constitution

does not insulate their communications from employer discipline.” Id. at 421.

Garcetti, then, created a “threshold inquiry” when evaluating employee free speech

claims: “whether the employee was speaking as a citizen.” Mills v. City of

Evansville, 452 F.3d 646, 647–48 (7th Cir. 2006). Only if the answer to this question

is “yes” does a court even inquire into the content of the speech. Id.

For example, Garcetti was a Los Angeles deputy district attorney who had

written a memorandum to his supervisor indicating that he believed an affidavit

used to obtain a search warrant contained serious misrepresentations. Id. at 420.

Garcetti was subsequently reassigned to another division inside the office, and he

alleged that his employer had unlawfully retaliated against him for expressing

protected speech. Id. at 414-415. The Supreme Court held that because his speech

was made as a deputy district attorney—that is, speech related to his job duties—he

was not acting as a private citizen and therefore didn’t enjoy any First Amendment

protection. Id. at 421-422 (“The significant point is that the memo was written

pursuant to Ceballos' official duties. Restricting speech that owes its existence to a

public employee's professional responsibilities does not infringe any liberties the

employee might have enjoyed as a private citizen.”).

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c. Umbehr extended the traditional Connick-Pickering test for

determining whether speech is constitutionally protected to

government contractors like Plaintiff

The holdings of Pickering and Garcetti were extended to independent

government contractors in Board of County Com'rs, Wabaunsee County, Kan. v.

Umbehr, 518 U.S. 668 (1996). Umbehr, a trash hauler who had has a contract with

the Board of County Commissioners of Wabaunsee County, frequently spoke out at

meetings of the Board, wrote letters to the editor in local newspapers, and made

various allegations against the Board regarding the mismanagement of taxpayers’

money. Id. at 672. The Board took this criticism poorly and terminated Umbehr’s

contract with the county. Id. Umbehr brought suit alleging First Amendment

retaliation, and the Supreme Court granted certiorari to determine whether the

First Amendment protected independent contractors from termination of at-will

government contract in retaliation for protected First Amendment activity. Id. at

670. Ultimately, the Court determined that the Pickering balancing test

appropriately accommodated the differences between employees and independent

contractors and should be used in determining whether the government’s action

against an independent contractor violates the First Amendment. Id. at 678.

There can be no legitimate question that Plaintiff, as an employee of Lifeline

providing services to DCS clients under the Lifeline contract, was a government

contractor under the Umbehrs framework. Plaintiff’s interaction with DCS clients

only existed by virtue of DCS’s contract with Lifeline. [Complaint, ECF 87, ¶7,

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“Wade worked for (former) Defendant Lifeline as a counselor to clients sent by

Defendant Department of Child Services . . . .”.] Had DCS not referred the case to

Lifeline under the contract, Plaintiff would have had no opportunity to be assigned

to K.L.’s case and speak with McSween about it in January of 2018. [Ex. A, ¶32.]

Any notion that Plaintiff was a purely private citizen when he spoke with DCS

Family Case Manager McSween about providing therapy to K.L.—a child who had

been removed from his home by the State because he was in need of services, [Ex. B,

¶5]—defies reason.

Therefore, for the Plaintiff to prevail on a claim of First Amendment

retaliation against each defendant, he must first establish that (1) he engaged in

constitutionally protected speech; (2) he suffered a deprivation likely to deter him

from exercising his First Amendment rights in the future; and (3) his speech was

the motivating factor in the employer's adverse employment action. Valentino v.

Village of S. Chicago Heights, 575 F.3d 664, 670 (7th Cir.2009). If he can establish

this prima facie case, “the burden shifts to the employer to demonstrate that it

would have taken the same action in the absence of the protected speech.” Id.

d. Plaintiff’s First Amendment claims against all Defendants fail

because his speech was made pursuant to his official duties as

a government contractor and was not on a matter of public

concern

To determine whether Plaintiff engaged in constitutionally protected speech,

the threshold question under Garcetti is whether “the employee was speaking as a

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citizen.” Spiegla v. Hull, 481 F.3d 961 (7th Cir. 2007). Plaintiff was not acting as a

citizen here. As evidenced by Plaintiff’s complaint, Defendant McSween asked

Plaintiff to begin Family Centered Therapy (“FCT”) for K.L. and his family as part

of Plaintiff’s duties with Lifeline. [Complaint, ¶9.] Plaintiff informed McSween that

“his personal background and beliefs as a Christian minister could serve to harm

the therapeutic process because, as a Christian Minister, his exposure to

transgender individuals was nonexistent, and his only frame of reference for such

conditions was religious in nature.” [Complaint, ¶10.] “Wade viewed these as

potential issues which could make it difficult to effectively carry out the FCT

process, which involves months of meetings between the therapist and the family

and requires a significant amount of trust and openness.” [Complaint, ¶11.] Even

accepting Plaintiff’s characterization of that conversation as entirely true, it is

difficult to see how Plaintiff could suggest that the conversation he had with

McSween was anything other than “pursuant to his official duties” as a contractor

for the State by virtue of his employment with Lifeline. Garcetti, 547 U.S. at 421.

His conversation was (1) with McSween, the assigned DCS Family Case Manager

for K.L.’s case; (2) about Plaintiff’s assignment as a therapist for K.L., a child in the

DCS system; and (3) expressing his view that his background may harm his ability

to provide therapy for K.L. and his family—precisely the “official duty” DCS had

requested he perform as a therapist under the contract with Lifeline. In fact,

Plaintiff could not have had a conversation about K.L. and his treatment outside of

his “official duty” as a therapist without both violating the confidentiality

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requirements of DCS’s contract with Lifeline, [Ex. E, p. 7, ¶O], and violating state

law confidentiality requirements regarding DCS case material. Ind. Code § 31-33-

18-1. At bottom, Plaintiff’s conversation with McSween was squarely within his

official duties—consulting with DCS family case managers regarding therapy of a

DCS client—and therefore falls outside the realm of constitutional protection under

Garcetti.

Even if this Court were to find that Plaintiff’s conversation with McSween

was not part of his official duties pursuant to the contract with Lifeline, his

conversation still wouldn’t receive constitutional protection because it wasn’t

regarding a “matter of public concern.” “When employee expression cannot be fairly

considered as relating to any matter of political, social, or other concern to the

community, government officials should enjoy wide latitude in managing their

offices, without intrusive oversight by the judiciary in the name of the First

Amendment.” Connick v. Myers, 461 U.S. 138, 146 (1983). Here, Plaintiff’s

discussion of his personal religious views and views on transgender individuals, as

they related to him providing therapy services to K.L. and his family, cannot fairly

be characterized as a “community concern.” As noted above, any concerns regarding

the therapy provided to K.L. were confidential under the Lifeline contract and state

law. No public discourse on the issues of religion or the issues facing transgender

individuals could have possibly come from Plaintiff’s conversation with McSween.

And, notably, Plaintiff has not complained that the contract or DCS’s policies are

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flawed, but merely that in this one case he had reservations about providing

services to a transgender client.

This Court has recently considered a case regarding speech in the course of

an employee’s official duties regarding both religion and gender dysphoria. In Kluge

v. Brownsburg Community Schools Corporation, 432 F. Supp. 3d 823 (S.D. Ind.

2020), Kluge was a school teacher at Brownsburg Community Schools who was a

“professing evangelical Christian who strives to live by his faith on a daily basis.”

Id. at 833. He believed that God created mankind as either a male or a female with

a fixed gender. Id. After the school corporation instructed teachers to refer to

students using the names and genders listed in a school database, which Kluge

believed constituted preferred names based on some students’ gender dysphoria, he

told the superintendent that doing so would violate his religious beliefs. Id. After

some back and forth, Brownsburg refused to accommodate Kluge and he filed suit.

Id. at 835-836.

Kluge asserted that by refusing to call students by the names listed in the

school database, he was engaging in protected speech by refusing to speak on the

mental disorder known as gender dysphoria. Id. at 837. Brownsburg argued that

Kluge wasn’t engaging in protected speech at all, and was instead speaking as an

employee of the school—not a private citizen—and that using the names in the

school database wasn’t a matter of public concern. While the court noted that the

fact that an employee speaks inside his workplace or that his speech concerns the

subject matter of his employment are not dispositive of the issue, the court found

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that Kluge’s speech in addressing students according to the school database was not

protected under the First Amendment because it was part of his job duties. Id. at

839. Specifically, the court found that he was not criticizing the policy of the school,

but the actual act of addressing his students, something that was part and parcel to

his job. Id. The court also found that the issue was not a matter of public concern

because, while the treatment of individuals based on their gender identity is an

issue of great public importance, Kluge was not conveying a message concerning

such matters to the public. Id. Specifically, “the act of referring to a particular

student by a particular name did not contribute to the broader public debate on

transgender issues”, and therefore was not “the kind of speech that was valuable to

public debate” and protected by the First Amendment. Id.

As in Kluge, Plaintiff’s speech here was directly related to his duties as a

therapist and did nothing to advance the public discourse around either his

religious views or the issues surrounding transgender individuals. Plaintiff’s

speech, like Kluge’s, also was not critical of the overarching policy implemented by

DCS through the contract with Lifeline but was only concerning a single

conversation had related to a single therapy assignment. For those reasons, his

speech was not constitutionally protected and summary judgment should be

granted for all Defendants on this claim.

e. Because there was no First Amendment violation, Plaintiff is

not entitled to injunctive relief

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As noted in the sections above, Plaintiff spoke pursuant to his official duties as a

contractor for DCS via his employment with Lifeline and his speech wasn’t on a

matter of public concern. Given that, he is not entitled to injunctive relief against

Director Stigdon in her official capacity because there has been no First

Amendment violation.

V. Conclusion

Because Defendants McSween, Decker, May, and Stigdon did not have any

personal involvement in the decision to prohibit Plaintiff from providing services to

DCS clients, no liability can attach under §1983 and judgment should be rendered

in their favor. Additionally, because Plaintiff spoke in the course of his official

duties as a contractor with DCS, and spoke on a matter that was not of public

concern, all Defendants are entitled to judgment in their favor. Finally, because

there was no First Amendment violation, Plaintiff is not entitled to any injunctive

relief against Director Stigdon in her official capacity.

Respectfully Submitted,

CURTIS T. HILL, JR.

Indiana Attorney General
Atty. No. 13999-20

Date: September 21, 2020 By: Jordan M. Stover

Deputy Attorney General
Atty. No. 29502-49
Indiana Government Center South – 5th Fl.
302 W. Washington Street
Indianapolis, IN 46204-2770
Phone: (317) 232-7154
Fax: (317) 232-7979

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Email: [email protected]

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CERTIFICATE OF SERVICE

I hereby certify that on September 21, 2020, I electronically filed the

foregoing with the Clerk of the Court using the CM/ECF system.

Jordan M. Stover
Deputy Attorney General

OFFICE OF THE ATTORNEY GENERAL

Indiana Government Center South – 5th Floor
302 W. Washington Street
Indianapolis, IN 46204-2770
Telephone: (317) 232-7154
Fax: (317) 232-7979
Email: [email protected]

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