Daza v. State (331 F. Supp. 3d 810, 2018)

Hon. Jane Magnus-Stinson, Chief Judge

Plaintiff Peter Daza, who is Hispanic, Native American, and over the age of forty, worked as a geologist for the State of Indiana Department of Transportation ("INDOT") from 1993 until his termination in 2015. Mr. Daza initiated this lawsuit in 2017, alleging that he was discriminated against based on his race, color, age, and "political speech and association," and that his termination was in retaliation for complaining about discrimination and exercising his right to free speech and political association. Defendants the State of Indiana, INDOT District Deputy Commissioner Russell Fowler, INDOT District Human Resources Manager Nina Daniel, and INDOT Technical Services Director Valerie Cockrum, have moved for summary judgment, [Filing No. 46 ], and that motion is now ripe for the Court's consideration. Also ripe for the Court's consideration is Defendants' Motion to Strike Surreply Arguments. [Filing No. 82.]

I.

MOTION TO STRIKE MR. DAZA'S SURREPLY

Before analyzing the substantive arguments Defendants raise in their Motion for Summary Judgment, the Court will consider Defendants' Motion to Strike Surreply Arguments. [Filing No. 82.] This is necessary because the motion relates to the scope of information that the Court could consider in deciding the Motion for Summary Judgment.

Mr. Daza filed a twenty-one page Surreply in Opposition to Defendants' Motion for Summary Judgment on June 8, 2018. [Filing No. 81.] Defendants move to strike portions of the surreply, arguing that those portions do not address Defendants' evidentiary objections but "merely seek[ ] to respond to the Defendants' arguments...." [Filing No. 82 at 2.] They assert that the portions they seek to strike "rehash[ ] arguments [Mr. Daza] has already made, or attempt[ ] to further argue with points raised in the Defendants' reply brief." [Filing No. 82 at 2.]

In response, Mr. Daza argues that the entire surreply addresses Defendants' objections to the evidence he submitted in response to the Motion for Summary Judgment, and so is appropriate. [Filing No. 84 at 3-4.] Mr. Daza also contends that Defendants' reply brief "contains new arguments, and [he] has a right to file a Surreply to new arguments." [Filing No. 84 at 1.]

Local Rule 56-1(d) permits the filing of a surreply "only if the movant cites new evidence in the reply or objects to the admissibility of the evidence cited in the response." Defendants seek to strike pages 9 through 20 of Mr. Daza's Surreply, and the Court finds that some of the arguments contained in that section relate to Defendants' admissibility objections while others do not. Accordingly, the Court GRANTS IN PART and DENIES IN PART Defendants' Motion to Strike Surreply Arguments to the extent that it will only consider arguments in Mr. Daza's Surreply that relate to the admissibility of evidence.

II.

MOTION FOR SUMMARY JUDGMENT

A. Standard of Review

A motion for summary judgment asks the Court to find that a trial is unnecessary because there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). As the current version of Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed. R. Civ. P. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed. R. Civ. P. 56(c)(4). Failure to properly support a fact in opposition to a movant's factual assertion can result in the movant's fact being considered undisputed, and potentially in the grant of summary judgment. Fed. R. Civ. P. 56(e).

In deciding a motion for summary judgment, the Court need only consider disputed facts that are material to the decision. A disputed fact is material if it might affect the outcome of the suit under the governing law. Hampton v. Ford Motor Co. , 561 F.3d 709, 713 (7th Cir. 2009). In other words, while there may be facts that are in dispute, summary judgment is appropriate if those facts are not outcome determinative. Harper v. Vigilant Ins. Co. , 433 F.3d 521, 525 (7th Cir. 2005). Fact disputes that are irrelevant to the legal question will not be considered. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

On summary judgment, a party must show the Court what evidence it has that would convince a trier of fact to accept its version of the events. Johnson v. Cambridge Indus. , 325 F.3d 892, 901 (7th Cir. 2003). The moving party is entitled to summary judgment if no reasonable fact-finder could return a verdict for the non-moving party. Nelson v. Miller , 570 F.3d 868, 875 (7th Cir. 2009). The court views the record in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Darst v. Interstate Brands Corp. , 512 F.3d 903, 907 (7th Cir. 2008). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. O'Leary v. Accretive Health, Inc. , 657 F.3d 625, 630 (7th Cir. 2011). The Court need only consider the cited materials, Fed. R. Cv. P. 56(c)(3), and the Seventh Circuit Court of Appeals has "repeatedly assured the district courts that they are not required to scour every inch of the record for evidence that is potentially relevant to the summary judgment motion before them." Johnson , 325 F.3d at 898. Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Ponsetti v. GE Pension Plan , 614 F.3d 684, 691 (7th Cir. 2010).

B. Evidentiary Issues

Before setting forth the facts relevant to the Motion for Summary Judgment and analyzing the parties' substantive arguments, the Court will consider the eight groups of evidence to which Defendants object.

First, Defendants object to the "Summary of Events" and the "Summary of Actions of Other Employees Showing Lack of Judgment and Bringing the Agency Into Disrepute" that Mr. Daza submitted in connection with his response brief. [Filing No. 72-1; Filing No. 72-2.] They argue that the documents are not admissible evidence, lack any authentication, are based on hearsay, and are "improper attempts to bypass the 35-page limit on response briefs." [Filing No. 78 at 2.] Mr. Daza argues that these documents are proper under Fed. R. Evid. 1006, which allows a party to "use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court." [Filing No. 81 at 2 (quoting Fed. R. Evid. 1006).] The Court will not consider the summaries provided at Filing No. 72-1 and 72-2, as the information contained in the summaries is also contained in other exhibits provided by Mr. Daza. The summaries are not of the type discussed in Rule 1006, but rather summarize other evidence submitted by Mr. Daza in a way that is favorable to Mr. Daza. The Court will consider the other evidence submitted by Mr. Daza (and referenced in the summaries) as appropriate, but will not consider the summaries themselves.

Second, Defendants object to portions of Mr. Daza's Affidavit, [Filing No. 72-3], as hearsay, outside Mr. Daza's personal knowledge, contradictory to Mr. Daza's emails or deposition testimony, and exceeding the scope of lay testimony. The objection is well-taken, and the Court will only consider portions of Mr. Daza's Affidavit that it finds are not hearsay, that include statements within Mr. Daza's personal knowledge, that do not contradict Mr. Daza's emails or deposition testimony, and that do not exceed the scope of lay testimony.

Third, Defendants object to messages from nonparties, because they are hearsay and lack authentication. [Filing No. 78 at 3-4 (objecting to Filing No. 72-5; Filing No. 72-6; Filing No. 72-7; Filing No. 72-8; Filing No. 72-9; and Filing No. 72-10).] To the extent the messages discuss the basis for Mr. Daza's termination and his contributions to INDOT, Defendants object for lack of personal knowledge. Mr. Daza responds that the messages are authenticated by Mr. Daza's testimony that he personally received the messages, and that they are offered to corroborate his testimony that he was well-liked by other employees. [Filing No. 81 at 6.] The Court finds that there are authentication issues with the messages. For example, Filing Nos. 72-5, 72-6, and 72-7 appear to be screenshots of text messages, but Mr. Daza did not submit an affidavit authenticating the messages, nor did he specify for the Court where in his deposition testimony he testified regarding the specific messages. In any event, the Court discusses the messages to which Defendants object below, and concludes that they are not relevant to the issue of whether Defendants discriminated against Mr. Daza or retaliated against him.

Fourth, Defendants object to several newspaper articles Mr. Daza submits, [Filing No. 72-16; Filing No. 72-25; Filing No. 72-34; and Filing No. 72-35], because "newspaper articles offered for the truth of what they report are inadmissible hearsay." [Filing No. 78 at 4 (citation and quotation omitted).] Mr. Daza responds that the articles are not offered for their truth, but rather "as evidence of the disrepute that other employees brought to the agency." [Filing No. 81 at 6.] As with the messages discussed above, the Court discusses below why the newspaper articles - even if they are considered - do not help to save Mr. Daza's claims from summary judgment.

Fifth, Defendants object to certain documents, [Filing No. 72-23; Filing No. 72-32; Filing No. 72-68], that they argue Mr. Daza has used in violation of a protective order entered in Mr. Daza's appeal of his termination before the State Employees' Appeals Commission ("SEAC"). [Filing No. 78 at 4 (referencing Filing No. 78-1).] The protective order limits the use of personnel documents and information relating to certain individuals to use in Mr. Daza's appeal before the SEAC. [Filing No. 78-1 at 3.] Mr. Daza responds that this case "is a continuation of" the SEAC proceeding. [Filing No. 81 at 7.] The Court has already found that Mr. Daza's use of the documents does not violate the protective order, [Filing No. 85 ], so considers the documents in connection with Defendants' Motion for Summary Judgment.

Sixth, Defendants object to the Facebook feed of a nonparty, Logan Mort-Jones, because it has not been authenticated, is inadmissible hearsay, and is irrelevant. [Filing No. 78 at 4.] Mr. Daza responds that Defendants do not specify how the Facebook feed is "not authentic," nor do they dispute that "the Facebook feed is that of Mort-Jones." [Filing No. 81 at 8.] The Court agrees with Defendants, and finds that the Facebook feed document is not authenticated and is inadmissible.

Seventh, Defendants object to a Report from the Indiana Inspector General regarding Troy Woodruff, [Filing No. 72-36], because it "is impermissible character evidence, is unfairly prejudicial to the Defendants, is inadmissible hearsay, and is irrelevant." [Filing No. 78 at 4-5.] Mr. Daza responds that the report "is evidence that Woodruff brought disrepute to the agency, by being investigated for possible criminal violations but was not warned, counseled, disciplined, suspended, or terminated, whereas Daza, who was not accused of any criminal violation, was terminated for bringing disrepute to the agency, which was a false allegation against him." [Filing No. 81 at 8.] To the extent Mr. Daza relies upon Mr. Woodruff as a comparator, the Court will consider this evidence below.

Finally, Defendants object to a document that purports to be the Twitter feed of T.J. Brink, [Filing No. 72-73], because it has not been authenticated, is inadmissible hearsay, is unfairly prejudicial, and is irrelevant. [Filing No. 78 at 5.] Mr. Daza argues that Defendants do not make a specific objection as to how the document is not authentic, do not dispute that it is the Twitter feed of Mr. Brink, and do not make "any specific effective objection." [Filing No. 81 at 9.] As discussed below, the Court considers this evidence but ultimately concludes that it is not relevant to Mr. Daza's claims.

C. Statement of Facts

The following factual background is set forth pursuant to the standards detailed above. The facts stated are not necessarily objectively true, but as the summary judgment standard requires, the undisputed facts and the disputed evidence are presented in the light most favorable to "the party against whom the motion under consideration is made." Premcor USA, Inc. v. American Home Assurance Co. , 400 F.3d 523, 526-27 (7th Cir. 2005).

1. 1993-2010

Mr. Daza began working as a geologist for INDOT in June 1993. [Filing No. 72-11 at 4-5.] Along with his duties as a geologist, Mr. Daza was the supervisor of the Independent Assurance Program, which is a federally-mandated program that requires certain qualifications for individuals to conduct testing of construction materials. [Filing No. 72-11 at 4.] In March 2006, Mr. Daza's position was reclassified to a Geologist 2 and he received a 15% salary increase. [Filing No. 72-3 at 2.] Mr. Daza's supervisor told him at the time that the pay increase was due to his excellent performance. [Filing No. 72-3 at 2.]

In September 2009, former Republican Indiana State Representative Troy Woodruff was appointed as District Deputy Commissioner ("DDC") of the Vincennes District of INDOT where Mr. Daza worked. [Filing No. 72-3 at 4-5.] In August 2010, Mr. Woodruff was promoted to INDOT Chief of Operations, and Russell Fowler, a personal friend of Mr. Woodruff, was appointed as DDC of the Vincennes District. [Filing No. 72-3 at 5.]

2. 2011: Mr. Daza Complains Regarding Treatment of Terry Goff

In 2011, Director Shane Spears told Mr. Daza to talk to an INDOT employee that Mr. Daza supervised, Terry Goff, because INDOT's Human Resources Manager (a Republican and the wife of the Knox County Republican Party Chairperson) had inquired regarding Mr. Goff's Facebook page and commented that she had heard it contained political posts. [Filing No. 72-4 at 1-2; Filing No. 72-11 at 39.]

On August 9, 2011, Mr. Goff complained to INDOT Director Valerie Cockrum regarding not receiving a promotion. [Filing No. 72-18.] Mr. Goff wrote in an email to Ms. Cockrum:

To no surprise, I was informed of the decision on filling the ETS slot in our department. I feel that I need to meet with Rusty to discuss a few things. Brent knows how I feel and I wanted to follow a chain of command before talking to Rusty.... On kind of the same note, I wanted to talk to you about the actions of [one of the interviewers] during my interview. I had already discussed this issue with [Mr. Daza] and decided I would not say anything until after the selection was made. He basically asked me to follow through you instead of confronting her directly. During the interview, she was texting on her phone. I asked Brent if he saw it and he did not. She was sitting to my left and had her phone in her lap where neither of you would have seen it. The problem with that is that shows a total lack of respect and should have never taken place. I went through the exact same thing when I interviewed...for the ETS slot previous and again something like this takes place.

I in no way want you to think that I am upset with your or Brent. It just feels like I do an excellent job and keep getting kicked in the face and it is really hard to keep doing a good job.

[Filing No. 72-18 at 1-2.]

Ms. Cockrum responded:

Terry, I hear what you are saying about not being selected for the position and I appreciate you following the chain of command. No, I didn't see [the interviewer] texting during the interview but will follow up on that. Thank you.

[Filing No. 72-18 at 1.]

On August 14, 2011, Mr. Daza sent a lengthy email to Ms. Cockrum regarding Mr. Goff not receiving the promotion for which he had applied. [Filing No. 72-19.] Mr. Daza set forth why he thought Mr. Goff was a good candidate, and why he was the "logical and best choice" for a prior promotion. [Filing No. 72-19 at 1.] He also discussed his belief that Mr. Goff did not get the promotion, and other past promotions, because he is a Democrat, stating in part:

Now why is Terry so poisonous? Because he is a Democrat. Terry was well connected in the Democrat party but what did he get for it. Let's see, the Democrats were in power for 16 years and Terry got an entry level job 19 years ago, that's it. No promotions, no big raises. He's not even the highest paid tech. As a matter-of-fact he is way underpaid. I am not naïve. I have been in INDOT for 18 years. Politics has always been played but not really in promotions in Testing, just entry level.... The only other opportunity for Terry was the Prestressed/Steel Supervisor job. Terry was the best choice. I know the man picked has experience in the steel industry and will probably be ok but the few promotions available to Testing shouldn't be handed outside our Department if we have suitable candidates from within and we had one excellent candidate, the best in the Department. You can't go around slapping our best tech in the face multiple times (which you have done twice) and expect him to take it. We're going to lose him or at least you will ruin him. He'll stop caring or trying. You want Testing to run on a skeleton crew. We can pull it off as long as you allow us to put the right people in the right slots, but you guys can't keep from interfering. And all because of one reason, Terry's politics. Mark quit in part because of this crap. Mark is a Republican and you guys couldn't help but screw with him too.

[Filing No. 72-19 at 1-2.]

Ms. Cockrum responded:

I will keep this to myself and won't forward unless you want me to for some reason. I always appreciate your total honesty Pete. And, your support for Terry is commendable.

[Filing No. 72-19 at 1.]

On August 15, 2011, Mr. Goff emailed Mr. Fowler, DDC of the Vincennes District, regarding not receiving the promotion for which he had applied. [Filing No. 72-20 at 2-4.] Mr. Goff outlined his qualifications and accomplishments while at INDOT. Mr. Goff then wrote, in part:

My job performance has not been affected by the party holding office. I have continued to educate myself and be an asset to INDOT. Politics should not be the deciding factor when promotions come up. And NO political party should be proud of hiring or promoting under-qualified staff.

* * *

I am neither a woman, a person of color, American Indian or any other minority but I am sure I am being discriminated against because of my political affiliation.

I am certain I was the most qualified of the internal applicants and I am 95% sure I was selected. So why would I continue to be the BEST technician in our department when being the best gets you absolutely no where (sic)? I ask you this......Did our Civil service training mean nothing? During the Training, it was stated that "evaluations are heavily weighed when a promotion is being considered".. (sic) obviously the Vincennes District is exempt from this.

[Filing No. 72-20 at 4.]

Mr. Fowler responded to Mr. Goff, stating:

I certainly understand disappointment when not being selected for a position - many of us can relate to that. A common misconception is that INDOT experience makes a candidate a "shoe-in" for a position. In fact, other things impact the decision: communication, team skills, personality, attitude, capability, performance, etc.....

I respect the fact that you have done very well in department ratings and pay for performance - that is commendable.....

While I cannot speak specifically for my predecessors - as I was not privy to the references in your e-mail - I have the utmost confidence that they made the best decisions for the agency at the time as required. Our focus is always to hire well-rounded people who add value to the agency.

[Filing No. 72-20 at 2.] Mr. Fowler did not investigate Mr. Goff's complaints of political discrimination. [Filing No. 72-4 at 3.]

In December 2011, Mr. Daza completed a performance appraisal for Mr. Goff and gave him an overall rating of "outstanding." [Filing No. 72-11 at 7-8.] Shortly thereafter, Mr. Woodruff emailed Mr. Fowler and Ms. Cockrum, among others, regarding Mr. Goff's performance appraisal, and wrote "How can you constantly complain about everything and be considered an[ ] outstanding employee? Somebody needs this one explained or changed." [Filing No. 72-21 at 3.] Mr. Fowler responded that he "questioned this one as well," and Mr. Woodruff wrote "An outstanding employee needs to be outstanding in every way. I will leave it to you guys to decide what his level should be, but it's not outstanding and I would question if it should be exceeds either." [Filing No. 72-21 at 2.] Mr. Goff's performance appraisal ultimately reflected an overall rating of "Exceeds Expectations." [Filing No. 72-11 at 8; Filing No. 72-23 at 7.]

3. 2012-2013: Mr. Daza is Disciplined for Complaining About Phone Policy

In May 2012, Mr. Woodruff was promoted to Chief of Staff at INDOT. [Filing No. 72-3 at 5.] In 2013, due to heavy construction on the I-69 corridor through the Vincennes District, the District was especially busy. [Filing No. 49-21 at 2.] As a result, Mr. Fowler informed his subordinates that anyone with an INDOT-issued cell phone would be required to be available for phone calls after regular business hours to ensure that construction could continue without delays. [Filing No. 49-21 at 2.] This was not an expectation that INDOT employees be on call 24/7. [Filing No. 49-24 at 5.] Mr. Daza complained about the directive, and explained to employees that it was not part of his job to work overtime or work on the weekends, "like construction and emergency personnel did." [Filing No. 72-3 at 13-14.] About a week after Mr. Daza made those statements, his supervisor at the time, Brent Schmitt, asked him to answer calls after hours. [Filing No. 72-3 at 13.] Mr. Daza ultimately complied and answered calls after hours, for which he received no additional compensation. [Filing No. 72-3 at 14.] INDOT issued a Written Reprimand, in which Mr. Schmitt described Mr. Daza's unacceptable behavior as follows:

On March 8th, 2013 Pete Daza and I sat down to discuss comments that he made at the spring construction conference for I-69. During the construction conference Mr. Daza made the statement that he would not follow the expectation of carrying his state issued cell phone after hours, set forth by the Vincennes DDC Rusty Fowler. I informed Mr. Daza that his expression of defiance in front of the employees he supervises, the members of the construction staff, and other directors did not exhibit the professional and leadership qualities that are expected of a supervisor in this department and agency. I informed Mr. Daza that the expectation to have his cell phone on him for urgent matters after hours was an expectation from both Rusty and I. Mr. Daza then repeatedly informed me he would not follow the expectation set forth by Mr. Fowler and that I could not make him. This defiant and insubordinate behavior is not acceptable nor does it reflect the core four principles that all employees of this agency are expected to exhibit, especially supervisors.

[Filing No. 72-26.] The Written Reprimand is signed by Mr. Daza.

In August 2013, the Indianapolis Star published a story entitled "INDOT official benefited from his and his family's sales of land along I-69 route," which discusses Mr. Woodruff's sale of a piece of land to the state as part of the I-69 expansion project. [Filing No. 72-25.]

In December 2013, Mr. Daza was nominated for a Department Leadership Award. [Filing No. 72-27 at 6.] Via email, Ms. Cockrum confirmed for Mr. Fowler that Mr. Daza was eligible for the Department Leadership Award even though he had received a written reprimand. [Filing No. 72-27 at 4.] Mr. Fowler responded "Excellent. I concur with Pete's contribution." [Filing No. 72-27 at 4.] Mr. Fowler stated that Mr. Daza "is a sharp guy & is a huge asset to us; he still needs some soft skill tweaking." [Filing No. 72-27 at 2 (emphasis omitted).]

Mr. Daza's 2013 Performance Appraisal Report was complimentary of his knowledge and work and reflected all "meets" or "exceeds" expectations ratings, but also noted that: (1) "Although Pete is willing to lend a hand and work with others in and out of his specific job duties, Pete often struggles to work as fiercely or cooperate as well if the assignment is one that he does not agree with or find necessary"; (2)

"Pete sometimes can and does allow his passion for his work to detract from the very positive and forward thinking ideas that he has. Pete always fulfills the needs of the customer but could improve upon his method of delivery and professionalism"; (3) "Most of the time Pete openly supports changes, however on one occasion earlier in the year Pete expressed dissatisfaction with a change that was made in the wrong environment. This event was addressed with a written counseling then a written reprimand and there have been no issues since"; (4) "It has been observed that during this review period that while being capable of arriving at fact, data based solutions, Pete could work on approving (sic) his ability to be objective, forward thinking, and critical of others (sic) ideas and opinions while remaining professional and respectful"; and (5) "On at least two occasions this year I had discussions with Pete about remaining professional [and] respectful when dealing with colleagues." [Filing No. 49-6.]

4. 2014: Mr. Daza Defends Mr. Goff's Refusal to Plow Snow Due to Illness

In early March 2014, Mr. Schmitt emailed Mr. Daza regarding Mr. Goff's refusal to come

to work to help plow snow because he had shingles. [Filing No. 72-29 at 3.] Mr. Daza responded that Mr. Goff ultimately came in to plow, so would not need a doctor's note, and that Mr. Goff "is allowed one mandatory OT refusal in a six month period so he is going to use it." [Filing No. 72-29 at 3.] Mr. Daza also emailed Ms. Cockrum and stated:

If someone has a medical reason they cannot plow and they have a doctor's excuse how can a refusal be issued? If you get two refusals disciplinary action is warranted. So if Terry were to have the flu, let's say, and he was called to plow again and couldn't they will issue a second refusal and write him up? Valid medical reasons should not subject the employee to refusals and consequently disciplinary action. If you extrapolate this out he could ultimately be fired if he continually was sick over a course of a snow event. Is it our position that Terry should know when a snow event is to occur, and since it is his duty to plow, only get sick when the weather is good? How dare he have an illness during snow season? Look at how we treat our people. Maintenance is out of control.

[Filing No. 72-29 at 3.]

Ms. Cockrum responded that she would "find out what the directive is on this today," and later emailed Mr. Daza and wrote:

Yes, a doctor's excuse may not exclude an individual from plowing snow. A doctor's excuse may not necessarily exclude the individual from receiving a first notice of refusal. However, a doctor's excuse could exclude an individual from disciplinary action if his/her condition was serious enough to warrant work restrictions which would include snow plowing.

Although Terry received a corrective action form for his first refusal, he will not receive a penalty (Written Reprimand).

Also, someone in upper management saw Terry at a ballgame in Richmond Saturday so that is not helping the perception of the situation because the thought is "if he could drive on Saturday what happened on Sunday?" I know that may be out of context as to actual events but that is the general feeling.

[Filing No. 72-29 at 1-2.]

Mr. Daza responded to Ms. Cockrum:

An illness can happen suddenly. Just because an individual is fine on one day doesn't mean he is faking it if an illness strikes the next. The last time he had a shingles outbreak he had a rash for several days he commented on before he finally went to the doctor. By the time he went the rash had increased in severity and was quite painful so, to address the comment below, you could have saw him out for several days appearing ok then overnight he is incapacitated. None of this is out of the realm of possibility and since no one is a medical doctor within INDOT and therefore not qualified to make such judgments, people's "general feelings" should not play into any evaluation of the situation when medical issues are concerned.

[Filing No. 72-29 at 1.]

Later that same day, Human Resources Manager Nina Daniel emailed Jeff Sullivan regarding Mr. Daza. [Filing No. 72-30.] Ms. Daniel wrote that Brent Schmitt had discussed with her several issues regarding Mr. Daza, most of which were behavioral. [Filing No. 72-30.] She stated that although Mr. Daza's job knowledge is "one of the best in the state," "his professionalism and interaction with [Mr. Schmitt] has become...'a cancer on the department.' " [Filing No. 72-30.] Ms. Daniel wrote:

Brent feels that Pete tries to usurp his authority especially with departmental employees. I think the back story is that Pete was up for or wanted the position that Brent now holds. Pete was not qualified because he does not have a[n] engineer's license. Everyone agrees that Pete is more knowledgeable than Brent in some areas, even Brent acknowledges this. However, I find Brent to be very personable, in tuned and onboard with where SPD and INDOT are moving toward culturally. He's a smart young man that will eventually grow into the position with the right support.

Yesterday Rusty [Fowler] asked me to sit in on a discussion about Pete. Val Cockrum and Brent were also present. They are all in agreement that something has to give. I ask if Pete was salvageable and got a lukewarm response. Everyone seems exhausted with the situation.

My take is if he is salvageable than we need a CTI meeting. We need to set specific expectations about his behavior and what that should look like. All three state that this has been addressed with Pete and while his behavior seems to improve for a few weeks it doesn't take long for it to tank again. I then offer that they should just have a frank discussion with Pete and ask if he is happy here. If he says "Yes" than (sic) we set guidelines and expectations for him to continue in his current position. If he says "No" we ask why. If his reasons are things we can help correct we make a plan, if not, we help him form an exit strategy. All respond that sometimes Pete will simply shutdown and not give any input. My understanding is this has happened twice. I suggested that if that happens we simpl[y] tell Pete that we are giving him an opportunity to express his thoughts and that a decision will be made with or without his input. We prefer he has input.

So, here's my/our question to you. If Pete is not happy or if the final decision is that this position is not the "right fit" does Pete have any options for moving to another district? Currently Rusty is not interested in having Pete remain here if he has to remove him from his current job. What options are there?

Side note: I have very little on file discipline wise. I have attached what I have which is indicative of a continued pattern of behavior. Unfortunately the largest portion of it was not formally documented....

[Filing No. 72-30.]

On March 26, 2014, Mr. Daza sent a lengthy email to Ms. Cockrum regarding Mr. Schmitt, his supervisor. Mr. Daza wrote, in part:

Ok I have some real issue[s] with today. First do you really think I am going to get into Brent's failings again? What can he do better? How about quit. If not that then let's see actually come to work, do his job and the list goes on. [Employees in Testing] do not trust Brent and they don't really trust you. The last time he asked us "what could he do better" [one employee] told Brent he needed to start coming to work which didn't go over well. Nobody likes, trusts, or respects Brent in Testing and that holds true for big parts of Construction as well. That won't change. He is who he is. Testing doesn't dislike you and some really like you but they do not trust you as it appears to them you think Brent is great. They are all puzzled how you can think that when he doesn't even come to work. Anyway, you will get very little honest feedback on that line of questioning. You want to know the truth you'll have to ask them by yourself and maybe they'll talk.

[Filing No. 72-31.] Mr. Schmitt resigned from INDOT in April 2014, and began working for the new Republican Mayor of Evansville as a City Engineer. [Filing No. 72-3 at 17.]

Around this time, Mr. Daza also complained about the performance of a geologist in the Seymour District, Chris Bell. [Filing No. 72-3 at 7.] In a March 26, 2014 email, Mr. Daza complained about Ms. Cockrum volunteering him to mentor Mr. Bell without asking Mr. Daza first. [Filing No. 72-31.] He also stated:

Testing employees know we are the best, strive to continue that trend and always do an excellent job but they feel insulted by Brent's view and leadership (lack of mostly as he has no idea how to lead). I can only conclude that you take Brent's view of us. Don't think I don't see this as setting me up for bad evaluations and work improvement plans. If Brent knew of this beforehand he knew damn well how I was going to react. Since I won't buge (sic) on this issue over[ ] mentoring Seymour's geologist, my time with testing is obviously limited.

[Filing No. 72-31 at 1.]

In April 2014, T.J. Brink was hired as the Safety Director in the Vincennes District. [See Filing No. 72-33.] Mr. Brink listed under "Professional Experience" on his application Director of Business Development for the Southwest Indiana Regional Youth Village. [Filing No. 72-32.] When Mr. Brink applied for the Safety Director position, he was a member of the Vincennes City Council. [Filing No. 72-32 at 1.] Ms. Daniel sent an email to Jeff Sullivan regarding whether there was an ethical issue with hiring Mr. Brink, since he was on the Vincennes City Council. [Filing No. 72-33 at 3.] Mr. Brink was ultimately hired. [Filing No. 72-3 at 8.]

In July 2014, Mr. Woodruff resigned from INDOT after an investigation by the State Inspector General regarding Mr. Woodruff's sale of land to the State of Indiana related to the I-69 project. [See Filing No. 74-2.] The Inspector General concluded that it agreed with decisions by the Marion County Prosecuting Attorney Office and a Special Prosecuting Attorney appointed in Daviess County that prosecution of Mr. Woodruff was not warranted, and also with a federal entity's conclusion that "land valuations regarding the I-69 Project were in 'substantial compliance with federal requirements.' " [Filing No. 74-2 at 2.] The Inspector General did make several recommendations, including that "INDOT not permit [Mr. Woodruff] to profit from INDOT funds through re-employment with the agency or through any form of contracting with the agency for at least one year after leaving state employment due to his failure to follow the advice given by the INDOT Ethics Officer to disclose the eminent domain action to the State Ethics Commission." [Filing No. 74-2 at 2.]

On July 31, 2014 - Mr. Woodruff's last day as an INDOT employee - Mr. Goff sent Mr. Woodruff an email stating that Mr. Woodruff was to blame for corruption at INDOT. He wrote:

You talk about the media portraying INDOT as being corrupt. This is TRUE. You are part of the reason that corruption exists. I for one think you are the pot calling the kettle black. Going to a consultant when you yourself made a big deal out of one of our BEST PE's wanting to go to work for a consultant. It was unethical for him and now not for you. WOW!!!! Now for the corruption YOU have created. You were not hired because of your job knowledge. It is because of the favors you had done for then Governor Daniels. I know that you have been personally involved in a screaming match at the district to rate me as below standard and I missed out on promotional opportunities in our department even though I had been selected. You have cost me a total of 17% in pay raises. ALL BECAUSE OF MY POLITICAL VIEWS. I hope that the corruption that you have brought to INDOT leaves when you are gone.

[Filing No. 72-37 at 2.]

Mr. Woodruff forwarded Mr. Goff's email to Mr. Fowler and stated "First off I don't know what he is talking about, but this may be one of the guys sending stuff to the media. At any rate wanted you to be aware he obviously thinks he works for a corrupt organization." [Filing No. 72-37 at 2.]

Mr. Daza received praise regarding his work from Ms. Cockrum and Ms. Daniel in late 2014. [Filing No. 72-38 (Ms. Cockrum emailed Mr. Daza in response to his submission of a fuel savings plan, stating "Well done Pete"); Filing No. 72-40 (in response to a lengthy email from Mr. Daza to Ms. Cockrum regarding savings in fuel and maintenance costs and observations regarding INDOT's productivity, Ms. Cockrum responded "Nice!"); Filing No. 72-44 (in response to an email from Mr. Daza to Ms. Daniel attaching some performance reviews for INDOT employees, Ms. Daniel wrote "First, let me say your evaluations are very well done. I always appreciate your thoroughness and insight. I do want to challenge you for a moment to review your ratings and let me know if you still feel the same after reading the information below." Ms. Daniel set forth the meanings of the different performance ratings and wrote "With this in mind, would you still rate Carla, Clint, and Tim the same? Can you give me an example of how the Exceeds or Outstanding applies to the employee receiving that rating?").]

5. 2015: Mr. Daza's Mother Writes a Letter to the Editor, Mr. Daza Defends a Co-Worker Involved in an Accident, Mr. Daza is Disciplined for a Respirator Incident, and Mr. Daza is Terminated

Mr. Daza continued to receive compliments regarding his work in 2015. [See Filing No. 72-45 (In response to information provided by Mr. Daza in emails, Ms. Cockrum responded "Wow. This looks very, very good. I think you are spot on in identifying results for each expectation," and "It is noted the effort all of you put into this. Excellent work"); Filing No. 72-47 (Mr. Fowler stating in an email "Pete, I appreciate the discussion today. You took full accountability as a leader for the challenge at hand, and came prepared with a plan. That is commendable - great job! Thank you!"); Filing No. 72-49 (in response to an email from Mr. Daza, Ms. Cockrum stated "Pete, as always excellent job working up this concept"); Filing No. 72-50 (in response to an email from Mr. Daza, Ms. Cockrum stated "I am not surprised by your result. You are the most results oriented person I have ever met!"); Filing No. 72-52 (email from Ms. Cockrum to Mr. Daza stating "Good interaction with Bob today. You know your stuff"); Filing No. 72-53 (Ms. Cockrum responding to an email from Mr. Daza, "Well done!").]

On October 1, 2015, Mr. Daza emailed various INDOT personnel advising that "Stephen Day hit a downed tree branch and broke off the side mirror of the state vehicle on 9/29/15. Enclosed are the accident forms related to the accident." [Filing No. 49-17 at 3.] Mr. Brink responded, "this is a preventable accident. He will also need to fill out the form completely. What was his speed? This is left blank." [Filing No. 49-17 at 3.] Mr. Daza responded:

Stephen was driving on US 50 west of SR 37 coming out of a curve. A limb was down and sticking out into his lane. There was oncoming traffic. It was raining. He was doing 50 mph. He has no place to go. US 50 is not roomy over there. Locking up the brakes and trying to stop is not smart as he could lose control of his vehicle. He does not swerve. If he did he would hit the oncoming traffic. He did the safest thing one could do in this situation - take the hit. If the accident is preventable then what should he have done? I cannot explain what else he should have done. I have no other answer than the action he took. He responded exactly how we tell people to - do not swerve to avoid a collision.

Below is the corrected accident report, and what the Lawrence County Sheriff's department provided me. They do not provide the actual accident report. If we want that we have to go to buycrash.com and purchase a copy. That is what they told me.

[Filing No. 49-17 at 3.]

Ms. Daniel responded:

If Stephen was doing 50 coming out of a curve and it was raining I would suggest that he was traveling too fast for the road conditions and therefore the accident was preventable. I would also be inclined to review Stephen's phone to ensure he was not texting as this has been an issue in the past.

[Filing No. 49-17 at 3.] Mr. Daza then wrote:

Speed limit is 55 so he was under the speed limit. Furthermore, if he was doing 35 could he have stopped in the middle of the road before hitting the limb? And if he did stop wouldn't he be putting himself and the motoring public in danger of a rear end collision. He is stopped and someone comes out of the curve and is going the speed limit or higher and cannot stop in time or hydroplanes because they lock up their brakes and causes a severe wreck. Again, his course of action was the safest given the situation. Finally, his cell phone is his and what right do I have to look at his personal cell phone. That requires a warrant in the law enforcement community.

[Filing No. 49-17 at 2.]

Mr. Daza and Ms. Daniel continued to email back and forth regarding whether the accident was preventable, with Ms. Daniel arguing that it was and Mr. Daza defending Mr. Day. [Filing No. 49-17 at 1-2.] Mr. Daza also emailed Bill Tompkins, a Testing Engineer at INDOT, and Ms. Cockrum, stating "This is ridiculous. How many man hours are we going to spend on this? They just want to fire him." [Filing No. 49-17 at 1.]

On November 22, 2015, a letter to the editor written by Mr. Daza's mother which was critical of then-Indiana Governor Mike Pence's position on immigration was published in a newspaper. [Filing No. 72-54 at 2 (letter from Marjorie D. Melvin titled "Pilgrims to this land were refugees, too").] Mr. Daza discussed his mother's letter with Ms. Cockrum and other INDOT employees. [Filing No. 72-3 at 9; Filing No. 72-11 at 10.]

Two days later, Mr. Brink went to Ms. Cockrum's office to discuss a concern he had with Mr. Daza. [Filing No. 72-59.] Ms. Cockrum memorialized the meeting in the following notes:

On November 24, 2015 TJ Brink, Vincennes Safety Director, came to my office to discuss a concern he had that Pete Daza and Nicole Wedding had checked out respirators from the stockroom after being told during the OSHA training not to use the respirators as they did not meet OSHA regulation. People needing respirators are to be fitted in order to receive the proper safety benefit. TJ was very upset and stated he thought Pete had purposely checked the respirators out knowing it was prohibited to do so. I pointed out the respirators had been checked out prior to the respirator portion of the OSHA training by one day but would take care of notifying people to not use them and to return them if they had checked one out recently. TJ was not happy with Pete's behavior or responses to TJ's questions during the OSHA training. He felt that Pete's attitude towards him was poor and that Pete was a bad influence on Clint Morgan. Clint works with Pete in the Testing Department. We talked about Clint as well and how he responded to one of TJ's questions during the training. TJ also felt that Clint was disrespectful in the way he answered TJ's question. I explained that Clint truly didn't know our policy on how to work with an OSHA inspector and his response was just an honest observation.

TJ has expressed his feelings about Pete's behavior in the past stating that Pete's negativity was not in align (sic) with INDOT's new culture.

After the Thanksgiving break I met with Pete and Clint on November 30, 2015 to discuss the incident with TJ during the OSHA training. I met with Pete first explaining that he had upset TJ and not for the first time. The first incident occurred over Pete's refusal to change an accident from unpreventable to preventable. I explained he should no[t] further antagonize TJ in any way. I talked about TJ's position as director and as a Director myself with the Testing Department being under me, I could not help him out if he further decided to choose to go down this route with TJ. I warned him that he was making an enemy out of TJ as it stood and I offered that talking to TJ might clear the air and would help TJ understand the situation. Pete stated he wasn't going to talk to TJ. He did apologize to me about the incident.

* * *

The point of this statement is to document a conversation held on November 30, 2015 where Pete was warned about creating a situation with another employee, a Director of the Vincennes District. On December 3, 2015 we received an observation of another similar incident involving Pete during a Beyond the Appraisal training in the Seymour District.

[Filing No. 72-59.] Ms. Cockrum also testified that she told Mr. Brink she could not support Mr. Brink's allegations. [Filing No. 72-13 at 5.] After her conversation with Mr. Brink, Ms. Cockrum warned Mr. Daza to stay away from Mr. Brink, to not antagonize him in any way, and that "a politically powerful person was out - was headed at [Mr. Daza] and was going to give [Mr. Daza] a lot of trouble." [Filing No. 72-11 at 7.]

On December 1, 2015, Mr. Daza attended a training session. [Filing No. 72-11 at 13-14.] When Mr. Daza arrived at the training, he thought that the trainer, Sheryl Proctor, did not like him and gave him "dirty looks." [Filing No. 72-11 at 13.] Mr. Daza "engaged in the training," [Filing No. 72-3 at 11], although he did "close[ his] eyes from time to time without reading glasses, and...did not say much," [Filing No. 72-3 at 22]. Mr. Daza's then-supervisor, Testing Engineer Bill Tompkins, was sitting at the same table as Mr. Daza at the training, and did not notice anything "out of the ordinary" or inappropriate. [Filing No. 72-12 at 3-5.]

Ms. Proctor wrote down her observations from the first day of training. [Filing No. 72-55.] She stated:

Pete arrived at the same time with Bill and Tim. Britni and I exchanged introductions with the group. Bill and Tim engaged in conversation, but Pete said nothing other than his name.

During the training, Pete frequently leaned back in his chair with his arms crossed over his chest. He did not take notes or follow along too often in the binder of handouts. Several times he closed his eyes.

Incident to be reported: Participants were asked to take a 5x8 card and write a brief recognition note that they would deliver verbally to someone the next day. They were told that we would share these notes with a partner for discussion. Pete sat with arms folded and did not participate. All 29 other participants were writing. Since his table had 5 people, I moved over to pair up with someone during the partner activity portion. I paired with Pete's boss Bill Tompkins. Pete was paired with his peer, Tim Mercker.

I was eager to observe how Pete might participate since he wrote nothing on a card. Even though I was working with my partner, I glanced at Pete and heard him say to Tim, "This is f___ing gay." I could not hear his partner's response, but his partner did go on to share the recognition he had written.

Once I finished with my partner, I turned to Pete (both others could hear me) and asked "I noticed you didn't write a recognition note, is there a reason why?" He replied (paraphrased) "I don't need to do this. I tell my guys when they do a good job. It's all in my head. Why do I need to write it down?"

His supervisor, Bill, said, "That's right, Pete is good at giving feedback to his guys." I asked Peter how many direct reports he had and he said "Three". Bill then added, "Actually he oversees way more than that and he does a good job with all of them."

At that point, the training resumed.

Additional note: Pete again had his eyes closed when the facilitator asked participants to pull out the evaluation form to complete. He 'woke up' while everyone was writing, looked around, but did not pull out the form to complete.

[Filing No. 72-55.]

Heather Devocelle, Ms. Proctor's supervisor, emailed Ms. Proctor's notes to Eric Kleinert, and stated "Here is one page of notes regarding Pete. I would like to have this addressed and I'm trying to determine best next steps. I don't want Pete coming to Day 2 'as is' so I need to work quickly. Who should I work with? Vincennes and Seymour share Bill Tompkins and then he reports to Val and Becky. These folks sit in Vincennes though. Thanks for your help." [Filing No. 49-12 at 1.] The email eventually reached Mr. Fowler, who forwarded it to Ms. Cockrum and Ms. Daniel and wrote "Please see attachment. We need to sit down with Nina on Monday & determine next steps. This behavior from Pete, as a supervisor, & reinforcement from Bill, as his Supervisor, troubles me greatly. To say my patience is worn thin with Pete is grossly understated." [Filing No. 49-12 at 1.]

On December 7, 2015, Ms. Daniel emailed Employee Relations Specialist Suzanne Kent and Mr. Kleinert regarding Mr. Daza's behavior at the training session. [Filing No. 72-60 at 10-11.] Ms. Daniel wrote, in part:

Mr. Daza is a Geologist 2 for the Vincennes District. While his work ethic and knowledge cannot be denied; his behavior and attitude have been called in to question several times. Mr. Daza's inappropriate behavior was brought to my attention as early as 2/18/14, the day after I arrived in the district.... Pete's then manager, Brett Schmitt, submitted his resignation soon after on 4/10/14. Pete's behavior was not addressed by Mr. Schmitt and later discussions with Pete brought Mr. Schmitt's performance as a manager in to question. Pete's behavior did improve, but continued to be on the edge of arrogant and insubordinate.

On the Monday before the final issue brin[g]ing this cause of action, Pete's Director, Valerie Cockrum, had a discussion with Pete in which she specifically warned him about "creating a situation with another employee"....

You will also find attached Pete Daza Observation Notes, which are a recount of Mr. Daza's actions during Beyond the Appraisal training on 12/2/15. Additionally I have attached his Written Reprimand from 3/11/13..., Disciplinary Action Justification Form (Pete Daza 12-7-15) and a copy of his 2013 Appraisal which notes Pete's abrasiveness in relating to other employees.....

Although Pete has attended Core4 training, as well as, Act1 training, he continues to exhibit behavior which is not in line with the Culture and professional expectations of INDOT managers. It is the feeling of Rusty, Val and myself that Pete willfully refused to participate in training, used derogatory language, and was disrespectful to his instructors. His behavior is neither modeled nor condoned by the Vincennes Leadership team and can no longer be tolerated.

[Filing No. 72-60 at 10-11 (emphasis omitted).]

Ms. Kent responded to Ms. Daniel as follows:

In review of the information..., the following are my suggestions:

1. The discipline policy provided is a good resource, but note that it is for classified employees.

2. Make sure that you are consistent with discipline policies across the district. Have others used derogatory language, not participated in training or crossed their arms during training as we have noted with Pete? If this has happened with other employees, how were they disciplined?

3. His performance appraisals are very good and there has been no discipline issued for his unprofessional demeanor and insubordination since 2013.

4. Was Clint disciplined for any inappropriate behavior during the OSHA training? Why was Clint to apologize to TJ if he didn't do anything wrong? Are you wanting to terminate because he refused to admit the incident and apologize to TJ?

His actions dot (sic) contravene public policy and he can be terminated at any time without just cause. But, I would advise that we continue to be consistent with levels of discipline for the same behavior. It would be our recommendation that we give a 3 day or 5 day suspension for his language and unprofessional behavior with documentation in writing that any further behavior of this kind would result in termination.

[Filing No. 72-60 at 10.] Ms. Daniel responded to several of the questions Ms. Kent asked:

2.... We have not terminated an employee for displaying the specific behaviors listed in this item, but have terminated an employee for a continued pattern of negative behavior, which did not conform to INDOT culture. We feel that Pete shows a continued pattern of negative behavior, which has been brought to his attention on several occasions and yet he refuses to change.

3.... True, his appraisal are very good and as mentioned earlier [his] work ethic and job knowledge are above reproach. However, his continued poor interpersonal behavior leaves much to be desired.

4.... Neither Clint nor Pete were disciplined for this action. The note was to serve as another instance where Pete was notified that his behavior was less than acceptable. The fact that two days after this discussion he displayed this type of behavior in a training session seems to be an explanation point.

[Filing No. 72-60 at 10.]

In the same string of emails, Mr. Fowler wrote to Ms. Daniel:

I have given this great consideration. Mr. Daza is a leader within INDOT. With that authority, comes great responsibility - to model the behaviors that we expect of all employees. His behavior at the training presented by the Talent Management Group last Wednesday was unacceptable; language aside, he sent a clear message that he did not want to be there, & was not going to participate - to the trainers and other attendees. It must be noted that while his performance has been historically good, in fact above meets last FY, this incident rises to critical level from a cultural standpoint. We disciplined Mr. Daza in 2013 for failure to live up to Core4 expectations as a supervisor - for exhibiting defiance and below the line behavior in a meeting, not unlike last week. Mr. Daza was informed at that time that this type of behavior was unacceptable & that future incidents would lead to further action - potentially dismissal. While I understand the recommendation for suspension, it shows a level of acceptance of this behavior - that it is ok to behave in this manner as a supervisor, and quite frankly, it is not. I am willing to accept the possibility of SEAC review. For the reasons noted, I wish to proceed with termination.

[Filing No. 72-60 at 9.]

Ms. Daniel responded to Mr. Fowler "If we do decide to do a 5 day hard suspension and not terminate it is Val's feeling (and I agree) that Pete no longer manage anyone." [Filing No. 72-60 at 6.] Mr. Fowler replied "I don't know where we would put him where he wouldn't supervise people. Also, I'm not sure that his influence on others will improve. I still feel termination is the right action." [Filing No. 72-60 at 6.]

Ms. Kent wrote:

On point # 2 you state that this pattern of negative behavior has been brought to Pete's attention on several occasions. Has this been in writing and with progressive discipline each time the negative behavior has been expressed? I think this is the part where we are trying to get the agencies on board with disciplining accordingly during the entire process, instead of what appears to be jumping from a written reprimand to termination. The gap of prior discipline until now can put the agency at a greater risk for having the employee come back with a CS complaint that would potentially have to be settled. It is up to the agency's discretion on the next step of discipline, but we feel a 3 or 5 day suspension prior to termination would be the better next step so that it is in writing and he is notified with written documentation vs. verbal communication only.

[Filing No. 72-60 at 3.]

Ms. Daniel responded:

You're absolutely on point. The discussions have not been documented with progressive discipline. I have reviewed with Val and will be reviewing with Rusty. Val understands the lack of formal corrective action and would support a 5 day suspension. She was also adamant that she no longer wants him to have any supervisory responsibilities.

[Filing No. 72-60 at 3.] Ms. Daniel also wrote to Mr. Kleinert:

Should a termination be supported we plan to emergency suspend Pete and address this termination on Thursday after the I-69 ribbon cutting with the Governor. While none of us feel that Pete would be violent we also do not want to risk that he would show up and disrupt the ceremony in any way. We would also need to do this to keep him out of the 12/9 training.

[Filing No. 72-60 at 1.]

Also on December 7, 2015, Mr. Daza sent an email to various INDOT employees under his supervision stating that he had nominated them for "spot bonuses" for their work in "successfully implementing a pavement evaluation SOP to determine whether roads should receive pavement preservation treatments." [Filing No. 72-58 at 1.] Mr. Daza had notified employees in the past when he had nominated them for spot bonuses. [See Filing No. 72-39 at 2; Filing No. 72-43.] While notifying employees of their nominations did not violate INDOT policy, Mr. Daza acknowledged that spot bonuses are "supposed to be a surprise" and that not ultimately receiving the spot bonus after being made aware of the nomination "fosters hard feelings and resentment." [Filing No. 72-11 at 56; Filing No. 72-58 at 1.] Ms. Daniel forwarded the email from Mr. Daza to the employees to Mr. Kleinert, and stated:

I thought I'd share this with you as well.

Pete did not include his Director, Val Cockrum, in the original email, but it was cc'ed to her when [one of the nominated employees] responded. Since Val worked with Pete on the justification for this bonus I think she felt it was a bit underhanded and passive aggressive for Pete to send out such an email when they had not settled on an appropriate bonus amount. Now how is management going to look if the bonus amount is changed or if the bonus has to be denied?

This is typical behavior from Pete. All bonuses have been approved for Testing since I have been here with the exception of two. One was a $250.00 bonus for an employee who decorated their office for Christmas and the other was for employees who did some landscaping around the office area. Therefore, Pete has nothing historical to base[ ] his "if the nomination is denied" statement on. Additionally, he knew the bonus was preapproved although the amount had not been settled on.

[Filing No. 49-8 at 1.] Mr. Kleinert responded "100% concur w/ Val. It is unbecoming conduct and she (sic) be addressed in the term." [Filing No. 49-8 at 1.]

On December 8, 2015, Ms. Cockrum told Mr. Daza that Mr. Fowler had received a request for Mr. Daza not to attend the second day of training on December 9. [Filing No. 72-3 at 21.] When Mr. Daza asked Ms. Cockrum why, she said she did not know and refused to give him any other information. [Filing No. 72-3 at 21.] After speaking with Ms. Cockrum, Mr. Daza asked Mr. Fowler what was happening but he would not giv