Indiana Civil Rights Com'n v. Culver Educational Foundation (Culver Military Academy), s. 50S03-8903-CV-182

Citation535 N.E.2d 112
Decision Date03 March 1989
Docket NumberNos. 50S03-8903-CV-182,50A03-8608-CV-00246,s. 50S03-8903-CV-182
Parties52 Ed. Law Rep. 203 INDIANA CIVIL RIGHTS COMMISSION and Martha W. Bernauer, Appellants (Respondents), v. CULVER EDUCATIONAL FOUNDATION (CULVER MILITARY ACADEMY), Appellee (Petitioner below).
CourtSupreme Court of Indiana

Linley E. Pearson, Atty. Gen., Frederick S. Bremer, Deputy Atty. Gen., Indianapolis, for Ind. Civil Rights Com'n.

Roy D. Rogers, Indianapolis, for Martha W. Bernauer.

Douglas J. Heckler, Keith E. White, Barnes & Thornburg, Indianapolis, for appellee.

PIVARNIK, Justice.

This cause comes to us on a petition to transfer from the Third District Court of Appeals. Petition is brought by Appellee, Petitioner in the trial court, Culver Educational Foundation, more commonly known as Culver Military Academy, following a court of appeals reversal of the trial court judgment in favor of Culver.

Because this case has been unresolved for several years, we note in some detail its procedural and factual history to aid in its resolution. Martha W. Bernauer initially worked as a part-time librarian for Culver Military Academy. In 1973 she was hired as a reading instructor. Culver practice required an instructor to serve on probation for three years, and if deemed successful at the end of that period, to be tenured. In 1974 Bernauer filed a complaint against Culver under the Indiana Civil Rights Act, alleging sex discrimination on the basis there was unequal insurance coverage (i.e., the policy covered "wives" of faculty members rather than "spouses" of faculty members), and because she felt she was not receiving the same pay as males for the same job. Culver quickly acknowledged the insurance issue and changed coverage to read "spouses" of faculty members. The Indiana Civil Rights Commission investigators subsequently found no probable cause on the equal pay issue. A witness for Culver testified that once the insurance language was changed, it was a "dead issue." There was evidence that since there was no remaining controversy with respect to the insurance issue, someone from the Indiana Civil Rights Commission suggested that Culver request Bernauer withdraw her complaint as long as the issue was cured. Bernauer then met with Superintendent Colonel Barone; there is conflict as to the nature of that meeting. Bernauer claims the meeting evolved into a confrontation in which Barone suggested to her that she either "play with the team and be a team player" or she would "have to get off the team." Culver denies that was the nature of the discussion. Bernauer's complaint was, however, subsequently dismissed. Some time after this, Bernauer's position at Culver was eliminated.

On February 26, 1975, Bernauer filed the instant charge with the Indiana Civil Rights Commission, alleging her employer, Culver Military Academy, was retaliating against her for filing the earlier sex discrimination charge. Culver maintained it discontinued the reading program and Bernauer's services were no longer needed. Further, they presented evidence they had found her to be unsatisfactory for permanent tenure. Culver also presented evidence that beginning about 1970, serious changes occurred which directly affected school enrollment. Conflicts in society regarding the Vietnam War and other social problems seriously affected public attitude toward military schools. At the end of the 1974 spring semester, Superintendent General Carpenter left and was replaced by Colonel Barone. Colonel Barone was seen as having a more military approach to operating the academy; he initiated many changes in the academic atmosphere, including the reading program. It was he who eliminated the reading program, which resulted in Bernauer's dismissal. Bernauer testified the many changes made in assigning students to her reading classes caused her a great deal of distress. Witnesses for Culver testified Barone eliminated many other programs in addition to the reading program.

In the summer of 1976, one year after Bernauer left Culver, Barone was replaced as superintendent by John Mars. Mars had been a teacher at Culver for thirty-five years and had been chairman of the language department. While Barone was a career military man, Mars was a career academician. Mars' replacement of Barone generated substantial contributions from alumnae and increased enrollment because of Mars' long affiliation with Culver and because he was a well known, well liked individual. Mars reinstated the reading program after a one-year hiatus and hired a new instructor. The reading program was ended permanently in 1982 and currently there is no reading center or reading program at Culver comparable to the one which existed during Bernauer's three years of employment.

When Bernauer filed the instant charge on February 26, 1975, alleging retaliation, the Indiana Civil Rights Commission conducted a full investigation. The director determined no probable cause regarding discrimination existed. Bernauer appealed this decision. After another comprehensive investigation the director again found no probable cause existed. Bernauer again appealed the director's determination. A meeting was held on October 11, 1980, which only Bernauer and Commissioner Mary W. Shafer attended, and which excluded Culver or any of its representatives. Commissioner Shafer overruled the two prior no probable cause determinations and found probable cause existed.

A hearing was held on September 13, 1983. Hearing Officer David Staples determined Culver had retaliated against Bernauer by cancelling the reading program and not renewing her employment contract at the end of her three year probationary period. Staples indicated his decision was based, at least in part, upon his conclusion that the program was reinstated one year later by the same administrator who cancelled the program at the end of Bernauer's employment with Culver. The commission subsequently recognized this conclusion was erroneous, and that a new superintendent had reinstituted the reading program, but the commission still accepted Staples' recommended findings, conclusions, and order. Culver was ordered to pay Bernauer back wages covering a period of years, not only for the regular school term but also for alleged lost summer school earnings during the time period in question. Further, Culver was ordered to reinstate Bernauer to her prior position.

Although Bernauer was dismissed, she was permitted to apply for a summer teaching position in 1975 and taught reading. She did not apply for a summer teaching position after 1975. Bernauer, who was qualified as both a remedial reading instructor and a librarian, worked as a temporary librarian in Maryland for six months in 1976. She worked as a librarian in Ohio for a year before returning to the Culver, Indiana, area. She stated she reapplied for her job at the military academy but was not rehired. She worked as a temporary administrator of a county fuel assistance program, and after that program ended, worked as a remedial reading teacher in the Culver Community Schools. Bernauer's husband, who was afflicted with Alzheimer's disease, subsequently was hospitalized in Fort Wayne, Indiana, and she accompanied him there and was employed as a night librarian at St. Francis College. During this time she also taught two classes for Indiana University/Purdue University. In February 1982, her husband died and she moved to Pennsylvania to pursue further studies.

Procedurally, the court of appeals reversed the trial court's remand of the cause to the Indiana Civil Rights Commission, and found the trial court, in reaching its decision, reweighed the evidence and improperly substituted its judgment of those facts, and overturned the agency's determination primarily because it would have reached a different result. It is petitioner Culver's contention, however, that the Marshall Superior Court properly remanded this case to the commission because the commission's decision is contrary to law where it improperly placed the burden of proof upon Culver. Although the trial court did not specifically articulate this principle, it is apparent in the commission's findings and merits the remand the trial court ordered.

Culver raised this issue in its direct appeal to the court of appeals and claims that pursuant to R.App.P. 11(B)(2)(e), the court of appeals erred in not stating and addressing this substantial and material issue in its decision. However, it contends the allocation and order of proof applied by the commission was inconsistent with anything previously sanctioned by any Indiana courts and in conflict with precedent in identical federal cases. We find this issue was clearly raised by Culver in the court of appeals and the issue was not addressed in the court of appeals' opinion. The commission's findings indicate the burden was placed on Culver to establish Bernauer was not dismissed to retaliate against her. This court has not addressed assignment of burden of proof in this type of case, and for that reason we vacate the opinion of the court of appeals and grant transfer.

The commission hearing officer found that Colonel Barone, who eliminated the reading program and discharged Bernauer, reinstated the program and hired another person for the next school year. Bernauer concedes Colonel Barone did not resume the program; rather it was reinstated by his successor. Culver argues this mistake affects the ultimate fact, found by the hearing officer and accepted by the commission, that Bernauer was the victim of a retaliatory discharge. Culver's position is that there was a great deal of evidence Barone had a plan to deal with the economic and social problems facing the...

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