Indiana State Highway Commission v. Indiana Civil Rights Commission

• Citation: 424 N.E.2d 1024
• Decision Date: 13 August 1981
• Docket Number: No. 2-1280A409,2-1280A409
• Parties: INDIANA STATE HIGHWAY COMMISSION, Appellant (Petitioner Below), v. INDIANA CIVIL RIGHTS COMMISSION and Rita Duncan, Appellees (Respondents Below).
• Court: Indiana Appellate Court

Page 1024

424 N.E.2d 1024

INDIANA STATE HIGHWAY COMMISSION, Appellant (Petitioner Below), v. INDIANA CIVIL RIGHTS COMMISSION and Rita Duncan, Appellees (Respondents Below).

No. 2-1280A409.

Court of Appeals of Indiana, Second District.

Aug. 13, 1981.

Linley E. Pearson, Atty. Gen., Frederick N. Kopec, Deputy Atty. Gen., Indianapolis, for appellant.

John H. Pleuss, Indianapolis, Alice M. Craft, Indianapolis, for appellee.

BUCHANAN, Chief Judge.

CASE SUMMARY

The Indiana Civil Rights Commission (Civil Rights Commission) found that the Indiana State Highway Commission (Highway Commission) had discriminated against Rita Duncan (Duncan) on the basis of sex, and awarded Duncan $5,312 in lost salary. From an affirmance of this award by the Marion Superior Court, the Highway Commission appeals, asserting that the Civil Rights Commission has no jurisdiction over State agencies, and that the Civil Rights Commission's findings and award were not supported by sufficient evidence.

We affirm.

FACTS

The dramatis personae of this case were all employed by the Indiana State Highway Commission at one time or another in 1976. The work of the highway commission is divided among seven divisions or offices in Indianapolis, along with six local district offices. The Division of Personnel, in Indianapolis, was headed by Thomas S. Williams. The Division of Land Acquisition operated under its chief, John W. Brossart (Brossart), and his deputy William H. Belky (Belky). The Division of Land Acquisition is further divided into seven sections; all but one of these sections, the Administration Section, were directly involved in the acquisition of land for the Highway Commission. It appears that the function of the Administration Section was entirely that of supporting the activities of the remainder of the division.

The chief of the Administration Section at the beginning of 1976 was Samuel Cline (Cline), who was succeeded during the year by Donald E. Christy (Christy). Their secretary was Suzanne Merry.

Donald McCollum, classified as an Administrative Assistant V, reported directly to the chief of the Administration Section. His job was to oversee personnel records for the Division of Land Acquisition, and to verify travel vouchers and payrolls. Rita Duncan often assisted McCollum. She was classified as a "Duplicating Machine Operator VI;" by the letter of her job description, Duncan's sole duties were to operate, and assist others in operating, a photocopy machine. In fact, she additionally did typing, filing, compiling information requested by the Attorney General's office, and assisting McCollum in preparing reports. Duncan started work on July 28, 1975.

Early in 1976, McCollum decided to leave his post, and so the land acquisition division filed a personnel requisition with the Personnel Division for an Administrative Assistant V. The requisition summarized the requirements for the job as "Must have administrative experience and ability. College graduate desirable or the equivalence (sic) in experience." The job description for Administrative Assistant V to the Section of Administration, Division of Land Acquisition, states the requirements for the position more formally:

Broad knowledge of operational structure of the Division of Land Acquisition.

Specialized knowledge in accounting procedures.

Working knowledge of department and agency guidelines.

Ability to relate to and communicate with people.

After receiving applications, the Division of Personnel forwarded the names of five applicants to the Division of Land Acquisition. Of these, three, including Duncan, were women already employed by the Highway Commission. The remaining two, both men, were not then employed by the Highway Commission. It was to be the duty of the Chief of Land Acquisition, Brossart, to select one of applicants and recommend hiring that applicant to the Chief of Personnel. Between them, Cline and Christy, as chiefs As a result of this process, Brossart recommended that Patrick Wood be hired. Wood had a B.S. Degree in Business Administration, with some emphasis in real estate. While in college, he had held a research assistantship involving the use of a computer. He had held jobs as a bus boy, a research assistant, a warehouse employee, a house painter, and a retail salesman. During his interview with Belky, it developed that Woods' father, a real estate appraiser, was an acquaintance of Belky's.

of the Administration Section, interviewed all applicants. They recommended to Belky, the Assistant Chief of the Division, either Duncan, Patrick Wood, or Suzanne Merry, their secretary, for the job. Since Merry had not submitted an application to the personnel division, she was not then qualified for the job. Additionally, Belky himself interviewed the two male applicants, but not the three female applicants for the job. Duncan had tried to get an interview with Belky or Brossart, but was refused an appointment.

Rita Duncan holds a Bachelor of Science Degree in Education, had worked for six months assisting McCollum, and had previously worked as a bookkeeping clerk for a bank. It was necessary in that position to be familiar with accounting procedures, and the bank's computerized record-keeping procedures.

During the investigation of Duncan's civil rights complaint, Brossart, Belky, and Christy asserted that they chose Wood because an applicant with an educational background in real estate, business administration, and the use of computers would be better qualified. The Administration Section of the Division of Land Acquisition has no dealings in real estate, and these additional qualifications were never published until after Wood was hired and the complaint was filed.

Duncan filed her complaint with the Civil Rights Commission on April 29, 1976. On June 9, after six weeks of service, Wood resigned his position. He was replaced by a woman, Suzanne Merry. Merry, a three-year employee of the Highway Commission, has no college degree, no experience in real estate, and no significant exposure to computer technology.

On the basis of this evidence, the Civil Rights Commission's hearing officer proposed the following conclusions of law and order:

CONCLUSIONS OF LAW

1. The Commission has jurisdiction over the subject matter and the parties.

2. The complaint was timely filed.

3. Highway Commission is a "person" as that term is defined in I.C. 22-9-1-3(a).

4. Highway Commission is an "employer" as that term is defined in I.C. 22-9-1-3(h).

5. Highway Commission committed a "discriminatory practice" as that term is defined in I.C. 22-9-1-3(1) in that it excluded Duncan from equal opportunities because of her sex by treating male and female applicants in a non-uniform manner during the selection and interviewing process.

6. Highway Commission committed a "discriminatory practice" as that term is defined in I.C. 22-9-1-3-1(1) in that Duncan has shown the following (see McDonnell Douglas Corp. v. Green, 411 U.S. 792, (93 S.Ct. 1817, 36 L.Ed.2d 668) 5 FEP 965 (1973):

a. She is a female.

b. She applied and was qualified for a position for which Highway Commission was seeking applicants.

c. Despite her qualifications, she was rejected for the position.

d. A less qualified male was selected for the position.

e. Respondent's stated reasons for the interviews given male applicants but not female applicants and for selecting a male are in fact pretextual.

7. As a result of discriminatory treatment of Duncan by Highway Commission, Duncan lost salary in the amount of Five Thousand Three Hundred Twelve Dollars ($5,312.00).

8. Any Finding of Fact which should have been deemed to be a Conclusion of Law is hereby adopted as such.

ORDER

1. Highway Commission shall cease and desist from excluding females from equal opportunities because of sex by processing applications of males differently than those of females and by selecting less qualified males to fill vacant positions.

2. Highway Commission shall pay to Duncan Five Thousand Three Hundred Twelve Dollars ($5,312.00) within thirty (30) days of receipt of notice that a majority of the Commission has approved this Order.

s/s R. Davy Eaglesfield, III

s/s R. Davy Eaglesfield, III

s/s Hearing Officer

Dated: Aug. 15, 1979

No objections were filed to the recommended findings and conclusions, and the Indiana Civil Rights Commission adopted the recommendations on October 19, 1979. The State Highway Commission filed its petition for judicial review in the Marion County Superior Court on November 5. The court handed down its affirmance of the Civil Rights Commission's order on July 10, 1980. The Highway Commission then perfected this appeal.

ISSUES

The Highway Commission presents two issues: ¹

1. Does the Indiana Civil Rights Commission have jurisdiction to issue cease and desist orders against the Indiana State Highway Commission, a State agency?

2. Was the cease and desist order supported by substantial evidence?

I.

ISSUE ONE Does the Indiana Civil Rights Commission have jurisdiction to issue cease and desist orders against the Indiana State Highway Commission, a State agency?

PARTIES' CONTENTIONS The Highway Commission urges that because it is a State agency, it is entitled to a presumption of sovereign immunity from the operation of the Indiana Civil Rights Law, I.C. 22-9-1-1, et seq., unless the act should explicitly provide otherwise. The Highway Commission points out that the Civil Rights Commission is empowered to serve cease and desist orders only upon "persons." I.C. 22-9-1-6(k)(1). While the definitions in section 3 of the act, I.C. 22-9-1-3, indicate that the State and its agencies may be "employers," they are not listed as "persons." ² The Highway Commission further notes that it and the Civil Rights Commission are called upon by statute to cooperate in fulfilling the Civil Rights Commission's mission of education and enforcement. I.C. 22-9-1-6(d). The legislature could not have intended that State...