Perry v. Stitzer Buick GMC, Inc.

• Decision Date: 23 June 1994
• Docket Number: No. 41S01-9406-CV-567,41S01-9406-CV-567
• Citation: 637 N.E.2d 1282
• Parties: 10 IER Cases 641 Anthony G. PERRY, Appellant (Plaintiff Below), v. STITZER BUICK GMC, INC., et al., Appellees (Defendants Below).
• Court: Indiana Supreme Court

Page 1282

637 N.E.2d 1282

10 IER Cases 641

Anthony G. PERRY, Appellant (Plaintiff Below), v. STITZER BUICK GMC, INC., et al., Appellees (Defendants Below).

No. 41S01-9406-CV-567.

Supreme Court of Indiana.

June 23, 1994.

Rehearing Denied Nov. 1, 1994.

John O. Moss, Indianapolis, for appellant.

Michael V. Gooch, Patricia Polis McCrory, Douglas A. Tresslar, Harrison & Moberly, Indianapolis, for appellees.

SHEPARD, Chief Justice.

Anthony Perry says that the managers of Stitzer Buick decided to drive him out of his job as a salesman because he was black. Stitzer Buick argues that it cannot be sued for having done so. We hold otherwise.

I. Perry's Experience at Stitzer

Treat customers "equally" and "politely." That was Gordon Heinriech's advice to Anthony Perry in August 1987 when he selected him to become one of Stitzer Buick's new trainees. Perry soon learned, however, that what was preached on Stitzer's showroom floor was not practiced by its managers. While eight of Stitzer's ten trainees quit before the end of the training period, Perry completed the program and soon was establishing himself as one of Stitzer's top salesmen. Nonetheless, Perry, an African-American, began to suspect that his white supervisors harbored animosity towards him. By November, Perry alleges, that animosity had escalated to little short of a racially motivated campaign to drive him from the dealership.

On November 11, Stitzer general manager Dick Loury made Perry and another black co-worker privy to his belief that "all you black people always" steal. Perry complained about Loury's slur to his immediate supervisor and to sales manager Tony Houk but to no avail. Houk just "laughed it off, he didn't care." Later that day and in front of Perry, leasing manager Carl Weidner described an African-American who owed him money as a "nigger." Doubt about Weidner's motivation for telling this story in Perry's presence was removed the following day when Weidner speculated at a sales meeting that Perry might leave the dealership since he had "called [Perry] a nigger" the day That Saturday, Perry had a confrontation with sales manager Houk. Perry needed Houk's approval in order to complete a sale. Houk routinely treated Perry with contempt during these encounters and often referred to him as "dummy" and "stupid." On this particular Saturday, Houk turned violent, apparently displeased with Perry's failure to make a sale to an elderly black couple. He called Perry a "black son of a bitch" and other vulgar names and then shoved him into his office where he further berated him and threatened him with discharge. Finally, Houk told Perry to "get [his] ass out there and try to sell another car." Perry wiped Houk's spit off his face and said "yes sir." He left the showroom in tears while his co-workers stood at the sales desk laughing and joking about the incident.

before. Perry again complained to his managers, but once again they ignored his complaints.

Perry's co-workers "bet" he would not return to Stitzer after that Saturday but Perry proved them wrong. Embarrassed and humiliated, he reported for work on Monday. When Houk arrived he glared at Perry and said, "Damn, he's still here." Amidst continuing harassment, Perry remained on the lot pitching Stitzer cars until the close of business. The following morning Perry was one of the first salesmen on the job. When Houk encountered Perry he again declared, "he's still here." Several minutes later Houk called Perry into his office and fired him. When Perry requested an explanation, Houk responded, "I no longer need your service." "[I]s it because I was late or I'm not producing ...?" Perry persisted. "No, we just no longer needed your services," Houk answered. Several days later Houk placed advertisements in an Indianapolis newspaper announcing Stitzer's need for sales people.

In response to his termination Perry brought suit against Stitzer Buick GMC, Inc., and its president David Stitzer; secretary-treasurer Byron Stitzer; sales manager Tony Houk; general manager Dick Loury; and leasing manager Carl Weidner, all in their official capacities (hereinafter "Stitzer"). ¹ Perry's complaint is in five counts and it alleges causes of action for assault, slander, and assault and battery. Stitzer answered by way of a general denial and pled various affirmative defenses. Perry also sued in U.S. District Court alleging causes of action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981 (1988) (amended 1991) and the Civil Rights Act of 1991, 42 U.S.C. § 1981, 1981(a)(1992). Perry's federal causes of action were remanded to state court where summary judgment was granted in favor of Stitzer on all claims against it.

On appeal, the Court of Appeals held that the trial court properly disposed of Perry's § 1981 claim and his request for retroactive application of the 1991 Civil Rights Act ² but erred in disallowing his common law tort claims. Perry v. Stitzer Buick, GMC (1992), Ind.App., 604 N.E.2d 613. Both parties seek transfer, which we grant. We summarily affirm the Court of Appeals on Perry's civil rights claims, Ind. Appellate Rule 11(B)(3), and turn to his Indiana common law claims.

II. Standard of Review

In Evans v. Yankeetown Dock Corp. (1986), Ind., 491 N.E.2d 969, we held that recovery for personal injury or death by accident arising out of employment and in the course of employment can be sought exclusively under the Worker's Compensation Act and that such actions are cognizable only by the Worker's Compensation Board. The legislature intended the board's jurisdiction in such cases to be original and exclusive, and resort may not be had to the courts until the administrative process has been completely exhausted. Wilson v. Betz Corp. (1959), 130 Ind.App. 83, 91, 159 N.E.2d 402, 405 (citing Homan v. Belleville Lumber & Supply Co. (1937), 104 Ind.App. 96, 8 N.E.2d 127). Claims which do not meet any one of the jurisdictional prerequisites do not fall within the act and may be pursued in court. Evans, 491 N.E.2d at 973.

Relying on Evans and its progeny, Stitzer requested summary judgment on, inter alia, the ground that "there is no genuine issue of material fact that the Plaintiff's Complaint is barred by the exclusivity provision of the Indiana Workers Compensation Act." The trial court agreed, saying that "either the Indiana Workmen's Compensation Act is Plaintiff's exclusive remedy or the Defendants are not liable. In either case, summary judgment is [sic] favor of the defendant is appropriate."

This use of summary judgment is incorrect. The defense that Perry's claims are barred by the exclusivity provision of the act is an attack on the court's subject matter jurisdiction, ³ which cannot form the basis of a motion for summary judgment. See Mid-States Aircraft Engines, Inc. v. Mize Co. (1984), Ind.App., 467 N.E.2d 1242; accord Vink v. Hendrikus Johannes Schijf Rolkan N.V., 839 F.2d 676 (Fed.Cir.1988); Prakash v. American University, 727 F.2d 1174 (D.C.Cir.1984). Instead, when not pled in the answer, the appropriate vehicle for such a challenge is a motion to dismiss for lack of subject matter jurisdiction under Indiana Trial Rule 12(B)(1). This requirement flows from several important distinctions between the two motions.

Summary judgment terminates litigation predicated upon a finding that there are no material issues of fact that necessitate trial. In reviewing a motion for summary judgment, the judge may not weigh the evidence. Letson v. Lowmaster (1976), 168 Ind.App. 159, 341 N.E.2d 785. Instead, any doubts as to fact, or an inference to be drawn therefrom, are resolved in favor of the nonmoving party. Bischoff Realty v. Ledford (1990), Ind.App., 562 N.E.2d 1321. As a decision on the merits, summary judgment may not be rendered by a court which itself lacks subject matter jurisdiction. Cf. Suyemasa v. Myers (1981), Ind.App., 420 N.E.2d 1334 (trial court lacking jurisdiction is without power to rule on T.R. 12(B)(6) motion). Moreover, a summary judgment merges or bars the action for res judicata purposes. Mid-States Aircraft Engines, 467 N.E.2d at 1246-47.

By contrast, a motion to dismiss for lack of subject matter jurisdiction presents a threshold question concerning the court's power to act. When a court lacks subject matter jurisdiction, any action it takes is void. In re Chapman (1984), Ind.App., 466 N.E.2d 777. A dismissal under Trial Rule 12(B)(1) is not an adjudication on the merits nor is it res judicata. Harp v. Dep't of Highways (1992), Ind.App., 585 N.E.2d 652. A plaintiff thus is free to refile the action in the same tribunal or another tribunal that has jurisdiction. See Mid-States Aircraft Engines, 467 N.E.2d at 1246-47. Lack of subject matter jurisdiction is an affirmative defense which may be raised in the pleadings, see T.R. 8(C), or on motion under 12(B)(1).

Whether the Worker's Compensation Board and not the trial court had jurisdiction is a question on which the opponent of jurisdiction would typically carry the burden of proof. See Methodist Hosp. v. Ray (1990), Ind.App., 551 N.E.2d 463. There is a strong public policy favoring the coverage of employees under the act. Thus, when the plaintiff's own complaint recites facts demonstrating the employment relationship and its role in the injuries alleged, the burden shifts to the plaintiff to demonstrate some grounds for taking the claim outside the Worker's Compensation Act. See Burgos v. City of New York, 98 A.D.2d 788, 470 N.Y.S.2d 18 (1983); Doney v. Tambouratgis, 23 Cal.3d 91, 151 Cal.Rptr. 347, 587 P.2d 1160 (1979); cf. 2A Arthur Larsen, Workmen's Compensation Law 12-12 (1993).

In ruling on a motion to dismiss for lack of subject matter jurisdiction, the court may resolve factual disputes. See State ex rel. Basham v. Medical Licensing Bd. (1983), Ind.App., 451 N.E.2d 691. The court has considerable latitude in devising procedures to ferret out the facts pertinent In sum, when Stitzer filed its ...