Filter Specialists, Inc. v. Brooks, 46S05-0808-CV-444.

Citation906 N.E.2d 835
Case DateMay 21, 2009
CourtSupreme Court of Indiana
906 N.E.2d 835
FILTER SPECIALISTS, INC., Appellant (Petitioner below),
Dawn BROOKS and Charmaine Weathers, Appellees (Respondents below). and
Michigan City Human Rights Commission, Appellee (Intervenor-below).
No. 46S05-0808-CV-444.
Supreme Court of Indiana.
May 21, 2009.

[906 N.E.2d 838]

Timothy W. Woods, Jones Obenchain, LLP, South Bend, IN, Attorneys for Appellant Filter Specialists.

Jay Lauer, South Bend, IN, Shaw R. Friedman, Friedman & Associates, P.C., LaPorte, IN, Attorneys for Appellees Dawn Brooks and Charmaine Weathers.

Lawrence W. Arness, Michigan City, IN, Attorney for Appellee Michigan City Human Rights Commission.

On Petition To Transfer from the Indiana Court of Appeals, No. 46A05-0704-CV-203.

RUCKER, Justice.

Case Summary

Dawn Brooks and Charmaine Weathers initiated these proceedings by filing a complaint with the Michigan City Human Rights Commission alleging their employer, Filter Specialists, Inc., discharged them on the basis of race, in violation of the Indiana Civil Rights Act. Both Brooks and Weathers are African-American. Following a hearing at which evidence was presented, a five-member Commission unanimously concluded that race was the motivating factor behind the claimants' discharge, and awarded damages to Brooks and Weathers in the form of backpay and fringe benefits. Upon judicial review, the trial court affirmed the Commission's decision. We affirm in part and reverse in part the judgment of the trial court.


Before delving into the specific facts of this case, we begin by summarizing some basic principles in an area of law that at least one commentator observed "has befuddled most of those who have attempted to master it." Kenneth R. Davis, Price-Fixing: Refining the Price Waterhouse Standard and Individual Disparate Treatment Law, 31 Fla. St. U.L. Rev 859, 859 (2004); see also Wright v. Southland Corp., 187 F.3d 1287, 1289 (11th Cir.1999) (plurality opinion) (commenting, "Employment discrimination law has become an area of great-and often needless-complexity in the federal courts").

Every employment decision involves discrimination. An employer, when deciding whom to hire, whom to promote, or whom to fire, must discriminate among employees. Permissible bases for discrimination in firing for example might include excessive absenteeism, horseplay, fighting, or as alleged in this case and discussed in more detail below, clocking-in a fellow employee. Under Indiana law impermissible bases for discrimination include "race, religion, color, sex, disability, national origin, or ancestry." Ind.Code § 22-9-1-3(1). Thus, in an employment discrimination lawsuit, the critical inquiry usually is: On

906 N.E.2d 839

what basis did the employer discriminate? Stated somewhat differently, the case is one of causation: What caused the adverse employment action of which the plaintiff complains?

In construing Indiana civil rights law our courts have often looked to federal law for guidance. See, e.g., State, Civil Rights Comm'n v. County Line Park, Inc., 738 N.E.2d 1044, 1048 (Ind.2000); Indiana Civil Rights Comm'n v. Culver Educ. Found., 535 N.E.2d 112, 115-16 (Ind.1989); Indiana Civil Rights Comm'n v. City of Muncie, 459 N.E.2d 411, 418 (Ind.Ct.App. 1984). We do so again here.

There are presently two alternative ways of establishing liability in a federal Title VII case.1 A plaintiff may pursue a "single-motive" theory of discrimination. Or a plaintiff may pursue a "mixed-motive" theory of discrimination. Using the traditional single-motive theory, a plaintiff proves an unlawful employment practice pursuant to the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), as explicated in Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). More precisely, with the goal of "progressively ... sharpen[ing] the inquiry into the elusive factual question of intentional discrimination," id. at 255 n. 8, 101 S.Ct. 1089, the United States Supreme Court in McDonnell Douglas established an allocation of the burden of production and an order for the presentation of proof in Title VII discriminatory treatment cases. The plaintiff in such a case must first establish a "prima facie" case of racial discrimination.2 Burdine, 450 U.S. at 252-53, 101 S.Ct. 1089. Once the plaintiff has established a prima facie case, unlawful discrimination is presumed.

906 N.E.2d 840

The defendant-employer can rebut this presumption by producing evidence that the adverse employment action was taken "for a legitimate, nondiscriminatory reason." Burdine, 450 U.S. at 254, 101 S.Ct. 1089. Should the defendant-employer carry this burden, the plaintiff must have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant-employer are but a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817. Although the McDonnell Douglas presumption shifts the burden of production to the defendant-employer, "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Burdine, 450 U.S. at 253, 101 S.Ct. 1089.

In contrast, using the mixed-motive theory a plaintiff can establish an unlawful employment practice by showing that impermissible discrimination played a "motivating part" or was a "substantial factor" in the employment decision. Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). Under this theory the plaintiff need not disprove the bona fides of the employer's justifications but rather argues that race (or some other impermissible factor) was also a factor motivating the adverse action. See 42 U.S.C. § 2000e-2(m). In a mixed motive case, rather than simply articulating a legitimate, nondiscriminatory reason for the employment decision, the defendant must show by a preponderance of the evidence that it would have made the same decision regardless of the plaintiff's protected status. Price Waterhouse, 490 U.S. at 258, 109 S.Ct. 1775.

This means of proving unlawful discrimination was brought into focus by the United States Supreme Court in Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003), which referred to a "mixed-motive" case as one in which "both legitimate and illegitimate reasons motivated the decision." Id. at 93, 123 S.Ct. 2148. In Desert Palace, the Court noted that "[t]his case provides us with the first opportunity to consider the effects of the 1991 Act [amending Title VII] on jury instructions in mixed-motive cases." Id. at 98, 123 S.Ct. 2148. The amendment in question declared, "Except as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice." 42 U.S.C. § 2000e-2(m); see also Desert Palace, 539 U.S. at 94, 123 S.Ct. 2148 (quoting statute). The Court explained the issue presented by the amendment:

Since the passage of the 1991 Act, the Courts of Appeals have divided over whether a plaintiff must prove by direct evidence that an impermissible consideration was a "motivating factor" in an adverse employment action. See 42 U.S.C. § 2000e-2(m). Relying primarily on Justice O'Connor's concurrence in Price Waterhouse [v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989)], a number of courts have held that direct evidence is required to establish liability under § 2000e2(m).

Desert Palace, 539 U.S. at 95, 123 S.Ct. 2148. A unanimous Court held that "direct evidence" is not required in order for a plaintiff to obtain a mixed-motive instruction under Title VII. Id. at 101-02, 123 S.Ct. 2148. The Court summarized its holding as follows:

In order to obtain an instruction under § 2000e-2(m), a plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of

906 N.E.2d 841

the evidence, that "race, color, religion, sex, or national origin was a motivating factor for any employment practice." Because direct evidence of discrimination is not required in mixed-motive cases, the Court of Appeals correctly concluded that the District Court did not abuse its discretion in giving a mixed-motive instruction to the jury.

Id. at 101-02, 123 S.Ct. 2148. Although this holding purported to address only when a plaintiff is entitled to a mixed-motive jury instruction, some courts have concluded that the holding has a much broader impact. Specifically, some courts have read Desert Palace to apply to "single-motive" as well as "mixed-motive" cases. See, e.g., Dare v. Wal-Mart Stores, Inc., 267 F.Supp.2d 987, 990-92 (D.Minn. 2003). Some have read it to spell the demise of the McDonnell Douglas burden-shifting paradigm altogether. See, e.g., Griffith v. City of Des Moines, 387 F.3d 733, 745 (8th Cir.2004) ("The only rational conclusion is that no distinction between single motive and mixed motives exists ... McDonnell Douglas should not be used by courts to analyze Title VII claims.") (Magnuson, District J., concurring). And some have noted the uncertain ground on which McDonnell Douglas now stands. Chadwick v. WellPoint, Inc., 561 F.3d 38, 45 n. 8 (1st Cir.2009) (noting, "The Desert Palace decision has proved ripe terrain for scholarly debate over how that decision interacts with the McDonnell Douglas framework").

Although we do not agree that Desert Palace completely overruled McDonnell Douglas,3 we agree with those courts that have concluded in light of Desert Palace, the traditional McDonnell Douglas burden-shifting paradigm requires a slight modification, but only in its final stage. See, e.g., Rachid v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th Cir.2004) (noting courts need "only modify the final...

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