Indiana University v. Hartwell

• Decision Date: 26 September 1977
• Docket Number: No. 1-476A56,1-476A56
• Citation: 367 N.E.2d 1090,174 Ind.App. 325
• Parties: , 15 Fair Empl.Prac.Cas. (BNA) 1144, 16 Empl. Prac. Dec. P 8346 INDIANA UNIVERSITY, Appellant (Plaintiff Below), v. Ieva HARTWELL and the Bloomington Human Rights Commission, Appellees(Defendants Below).
• Court: Indiana Appellate Court

Page 1090

367 N.E.2d 1090

174 Ind.App. 325, 15 Fair Empl.Prac.Cas. (BNA) 1144,

16 Empl. Prac. Dec. P 8346

INDIANA UNIVERSITY, Appellant (Plaintiff Below), v. Ieva HARTWELL and the Bloomington Human Rights Commission Appellees(Defendants Below).

No. 1-476A56.

Court of Appeals of Indiana, First District.

Sept. 26, 1977.

Alvin R. York, Bloomington, for appellant.

Bruce Wackowski, Bloomington Human Rights Commission, Bloomington, for appellees.

Robert D. Lange, Indiana Civil Rights Commission, Indianapolis, for amicus curiae.

ROBERTSON, Chief Judge.

This is an appeal by plaintiff-appellant, Indiana University (IU), from a judgment of the Monroe Circuit Court entered pursuant to IU's verified petition for review of an opinion and order of the Human Rights Commission of the City of Bloomington. From that same judgment, Ieva Hartwell (Hartwell) and the Bloomington Human Rights Commission (Commission), defendants-appellees bring a cross-appeal.

The facts and events pertinent to the disposition of this appeal follow. Hartwell was employed as a Senior Information Scientist at IU's Aerospace Research Applications Center (ARAC) from June 1, 1971, until sometime in May of 1973, when she terminated her employment. Her salary at the time of her departure was $13,100 per year. On June 5, 1973, Mr. Thor Semler (Semler) began employment at ARAC with the title of Director of Technical Services and at a salary of $17,750.

On August 3, 1973, Hartwell filed a complaint before the Commission alleging that IU had, in violation of the Bloomington Human Rights Ordinance, denied her an equal employment opportunity because of her sex. Specifically, she contended that Semler's duties were essentially equivalent to the duties that had been hers and that a comparison of Semler's salary and her former salary was prima facie evidence that the salary she had received was discriminatory.

The Commission found probable cause to pursue the complaint and, upon the conclusion of hearings on the matter, issued a thirty page "opinion and order" which concluded that IU had discriminated against Hartwell by underpaying her because of her sex and which ordered IU to pay Hartwell $4,490.00 as back pay, plus an additional contribution to an employee benefit plan. Further, IU was ordered to create job descriptions to be submitted to employees for critical comments and was ordered to post signs to inform employees of the availability and coverage of the Indiana Civil Rights Commission and the Bloomington Human Rights Commission.

IU thereafter filed a verified petition for review in the Monroe Circuit Court seeking to have the administrative order set aside. The court vacated the Commission's awards of money damages as acts in excess of the Commission's authority but affirmed the remainder of the Commission's opinion and order.

IU appeals, alleging that Indiana University is an arm or alter ego of the State of Indiana and that the Human Rights Ordinance of the City of Bloomington is therefore not applicable to it and alleging also that the Monroe Circuit Court erred in not finding that the Commission's findings were arbitrary and capricious. Hartwell and the Commission cross-appeal, alleging that the court erred in finding that the Commission had no statutory authority to award money damages.

We will consider first IU's allegations regarding arbitrary and capricious findings by the Commission. The Commission's opinion and order is a morass. We cannot determine with any certainty, nor do we comprehend how the initial court of review determined, what constitutes the basis of the Commission's decision.

The Commission's narrative opinion and order presents conclusory findings that IU "has violated Chapter 2.60 of the Municipal Code by denying complainant an equal opportunity in employment because of her sex" and that Hartwell "was being under paid, because of her sex, from May of 1972 until May of 1973, by the amount of $4,490.00 by respondent Indiana University." However, there exists within the opinion and order a dearth of specific, evidentiary findings of fact upon which the conclusory findings could be premised.

The opinion and order is burdened with considerable hearsay and much that is not material or is not relevant to the issue before the Commission the question of discrimination by IU against Hartwell. ¹

For example, we note that the opinion and order dwells at length upon a comparison of Hartwell's and Semler's roles at ARAC. The Commission determined that the jobs of Hartwell and Semler were not significantly different, but the opinion and order does not state unequivocally that such comparison is the basis for the finding of discrimination. IU has alleged that the above determination was arbitrary, capricious, and an abuse of discretion; the initial court of review found that it was not.

It matters not, it seems to us, whether the Commission's determination regarding the similarity of Hartwell's and Semler's position was arbitrary and capricious. That point is extraneous to the issue of discrimination against Hartwell. The Commission found that Hartwell "was being under paid, because of her sex, from May of 1972 until May of 1973, by the amount of $4,490.00 by respondent Indiana University." The record discloses that Semler's employment with ARAC did not commence until June of 1973 after the end of the period of discrimination as found by the Commission. Clearly, Semler's employment and its incidents could have no probative value to support the finding of discrimination where that discrimination had already concluded. That is, if there was discrimination from May of 1972 until May of 1973, it would have existed irrespective of Semler's subsequent employment. Indeed, the discrimination should be demonstrable even if the position occupied by Hartwell simply expired upon her departure, with no one being hired later to perform any of those duties that had been hers.

The Commission's determination of the similarity of Hartwell's and Semler's employment positions is not material to the issue of discrimination and could not properly be used as the basis for the Commission's decision. Thus, even if it were arbitrary and capricious, necessarily, IU could not have been harmed thereby. Although we suspect the above determination was the basis for the Commission's decision, the fact remains that we do not know how the Commission reached its decision. Judge Sullivan, in V.I.P. Limousine Service, Inc. v. Herider-Sinders, Inc. (1976), Ind.App., 355 N.E.2d 441, has stated well our need for additional information.

"In certain instances to say that findings of basic fact are required is not enough. . . . A mere recitation of the factors considered and found as fact may do no more to facilitate judicial review than a finding of the ultimate fact. It is thus appropriate to say that we need not only findings of basic facts but we must know how and why and to what purpose the administrative agency utilized those facts in reaching its ultimate conclusion. A rational relationship between the facts found and the conclusion reached must exist and should be stated. We need then, in addition to the findings of fact, a statement of the reasons for the agency's ultimate determination. . . ."

To facilitate an informed judicial review, we would remand and instruct the Commission to make clear, specific findings of fact and to state how they were applied. However, the questions of jurisdiction and of the authority of the Commission to award damages and our resolution of them renders unnecessary such a remand.

On cross-appeal, Hartwell, the Commission, and amicus curiae, Indiana Civil Rights Commission, contend that the Commission has the authority, pursuant to IC 1971, 22-9-1-12 (Burns Code Ed., Supp.1976), to award damages. Notwithstanding contrary views expressed by the court of initial review in its findings and by the Attorney General of Indiana at 10 Op. Att'y Gen. 30 (1974), we agree with the statutory interpretation of the cross-appellants.

While the statute does not specifically state that local commissions may be vested by ordinance with the authority to award damages, cross-appellants cogently argue that such authority is impliedly contained in the following language of the statute:

". . . An ordinance enacted as provided in this section may impose penalties or grant such powers to the local commission agency as may be deemed necessary or appropriate to implement its purpose and objective, whether or not such powers are granted to the state commission under IC 1971, 22-9-1-2, including, but not limited to . . . ." (Emphasis added.)

The above language of the statute certainly is broad enough to include the award of damages. Indeed, the language is so liberal, we cannot say with certainty that the statute places any limitations on the powers which may be granted to the Commission. We are thus constrained to the view that IC 1971, 22-9-1-12, (Burns Code Ed., Supp.1976) is violative of Indiana Const. art. 3, § 1 ²; art. 4, § 1 ³; art. 5, §...