Perry v. Stitzer Buick, GMC, Inc., 41A01-9205-CV-156
| Decision Date | 30 November 1992 |
| Docket Number | No. 41A01-9205-CV-156,41A01-9205-CV-156 |
| Citation | 604 N.E.2d 613 |
| Parties | 60 Fair Empl.Prac.Cas. (BNA) 884, 8 IER Cases 348 Anthony G. PERRY, Appellant-Plaintiff, v. STITZER BUICK, GMC, INC., David C. Stitzer, President, Byron V. Stitzer, Secretary-Treasurer, Tony Houk, Sales Manager, Tony Houk, Individually, Dick Loury, General Manager, Dick Loury, Individually, Appellees-Defendants. |
| Court | Indiana Appellate Court |
John O. Moss, Indianapolis, for appellant-plaintiff.
Michael V. Gooch, Patricia Polis McCrory, Douglas A. Tresslar, Harrison & Moberly, Indianapolis, for appellees-defendants.
Anthony Perry has a talent for salesmanship. In fact, for four straight years his previous employer, a local shoe company, honored him as its "employee-of-the-year." When Perry decided to leave his shoe-sales career in favor of higher commissions in the car industry, he had no reason to expect anything but success. For a while he was right. From a pool of over 100 applicants, Stitzer Buick selected Perry to become one of its new trainees. Eight of the ten trainees quit before the end of the training period; Perry, however, completed the training program and soon was establishing himself as one of Stitzer's top salespeople. It was a familiar feeling for Perry; he could sell anything, from $25.00 shoes to $25,000.00 cars.
Perry's promising career with Stitzer was cut short, however, when Perry was fired, without explanation, shortly after completing the training program. In response, he sued Stitzer, the corporate entity, and Stitzer employees Tony Houk, Carl Weidner, and Dick Loury, individually. Perry sought compensatory and punitive damages for alleged violations of Title VII of the Civil Rights Act of 1964, 1 the Civil Rights Act of 1991, 2 and Indiana common law.
The trial court granted Stitzer's motion for summary judgment. Although Perry advanced several potential theories for recovery, the trial court's order failed to identify the deficiency of each claim; instead, Stitzer's summary judgment motion was granted without explanation. Perry now appeals this ruling, raising eight issues for our review, which we consolidate and restate as:
I. Whether the Civil Rights Act of 1964 provides Perry with a viable theory of liability.
II. Whether the Civil Rights Act of 1991 applies retroactively to provide Perry with a viable theory of liability.
III. Whether the Worker's Compensation Act precludes Perry's tort claims:
a. against Stitzer; and
b. against Houk, Weidner, and Loury, individually.
The evidence most favorable to Perry, the non-movant, reveals that in July or August, 1987, Stitzer hired Perry as a car salesman for its dealership in Indianapolis. Perry, a black male, alleged that he was subjected to recurring episodes of racial discrimination while employed at Stitzer. He testified that whenever he approached Tony Houk, Stitzer's sales manager, concerning a potential sale, Houk responded with vile, vulgar language, and called Perry various derogatory names including "son-of-a-bitch," "motherfucker," "stupid," and "dummy." Perry deposition at 114-15. 3 Perry complained to Richard Boone, Gordon Heinriech, Mike Deem, and Richard Meyers, all Stitzer managers, but no action was taken. Perry deposition at 122.
On one occasion, Dick Loury, Stitzer's general manager, approached Perry and Derrick Burrows, a black co-employee, and asked, Perry deposition at 110. Perry immediately complained to Boone and Houk, but again no action was taken; instead, Houk "just laughed it off, he didn't care." Perry deposition at 112-13.
In November, 1987, Perry told Loury that Carl Weidner, Stitzer's leasing manager, had called him a "nigger." Perry deposition at 123, 176-78. On that occasion, Perry and Heinriech were discussing company business when Weidner approached the two and said "he will always be [Weidner's] token nigger because he owed [Weidner] $10.00." Perry deposition at 124. Although he admits Weidner did not specifically refer to him, Perry believed it was a racial slur directed at him. Perry deposition at 129. The following day, during a sales meeting attended by all Stitzer managers and salesmen, Weidner said Perry would not be at the meeting because "he [Weidner] had called Perry a nigger the day before." Perry deposition at 129.
On November 17, 1987, an elderly black couple was on the Stitzer lot looking at cars. When Perry told Houk the couple was not ready to buy, Houk told him "to go in and work a deal with them any damn way [Perry] could, force them into making a buy." Perry deposition at 135. After the couple left without buying a car, several managers and salesmen heard Houk call Perry a "black son-of-bitch" and "motherfucker," and saw Houk shove Perry and pull him into an office. Perry deposition at 135. In the office, Houk called Perry a "black son-of-a-bitch" and a "no good motherfucker" and told Perry that "if he didn't do exactly as he was told and force people to buy a car, [Perry's] ass would be out of here." Perry deposition at 135-36. Perry left the office visibly upset while his co-employees stood at the sales desk laughing and joking about the incident. Perry deposition at 136, 143. The following day, Houk fired Perry without explanation.
Perry did not file a claim for Worker's Compensation, but filed suit in Marion Superior Court, Civil Division, against Houk, Weidner, and Loury on grounds of assault, battery, slander, and emotional distress, and against Stitzer on a theory of respondeat superior. Stitzer and Houk, Weidner, and Loury moved for summary judgment on all counts; their motions were granted, and this appeal ensued.
As the 1991 amendments to Ind. Trial Rule 56 make clear, this court is not free to search the entire record in determining the propriety of the trial court's grant of summary judgment. To the contrary, we may consider only those portions of the record that were specifically designated to the trial court.
Summary judgment is appropriate if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Koenig v. Bedell and Aetna Insurance Company (1992), Ind.App., 601 N.E.2d 453. When a defendant is the moving party, it is entitled to summary judgment as a matter of law if it can demonstrate that either the undisputed material facts negate at least one element of the plaintiff's claim, or if it raises a valid affirmative defense which bars the plaintiff's claim. Moore v. Sitzmark (1990), Ind.App., 555 N.E.2d 1305, 1306-07. If a defendant cannot make one of these showings, summary judgment is inappropriate. Id. Any doubt as to a fact, or an inference to be drawn therefrom, is resolved in favor of the nonmoving party. Bischoff Realty, Inc. v. Ledford (1990), Ind.App., 562 N.E.2d 1321, 1323.
The trial court concluded Sec. 1981 of the Civil Rights Act of 1964 provided Perry with no cause of action under the circumstances alleged. Perry challenges this ruling.
Prior to its 1991 amendment, Sec. 1981 read, in pertinent part, as follows:
(a) All persons within the jurisdiction of the United States shall have the same right in every state and territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
42 U.S.C. Sec. 1981.
Section 1981 prohibits racial discrimination in the making and enforcement of private contracts. Patterson v. McLean Credit Union (1989), 491 U.S. 164, 172, 109 S.Ct. 2363, 2370, 105 L.Ed.2d 132, 147. It cannot be construed as a general proscription of racial discrimination in all aspects of contract relations, however, for it expressly prohibits discrimination only in the making and enforcement of contracts. Id. at 177, 109 S.Ct at 2372, 105 L.Ed. at 151. Section 1981 protection simply did not extend "to problems that may arise from the conditions of continuing employment." Id. Because Perry's claim concerns only conduct occurring after he began work, Sec. 1981 provides him no relief. 4 The trial court did not err in so ruling.
Perry next argues the trial court erroneously concluded the Civil Rights Act of 1991 afforded him no relief. 5 The trial court ruled that the conduct in question occurred well before the Act was created and that the Act should not be applied retroactively, even if it did provide Perry a cause of action.
The federal courts of appeals which have addressed this issue have unanimously rejected retroactive application. See Rush v. McDonald's Corporation (7th Cir.1992), 966 F.2d 1104; Johnson v. Uncle Ben's, Inc. (5th Cir.1992), 965 F.2d 1363; Fray v. Omaha World Herald Co. (8th Cir.1992), 960 F.2d 1370; Vogel v. City of Cincinnati (6th Cir.1992), 959 F.2d 594. We have examined these opinions and find their reasoning compelling. We decline Perry's request to give retroactive effect to the 1991 Act. 6 The trial court did not err.
At this point, it is necessary to separate Perry's claims against Stitzer from his claims against Houk, Weidner, and Loury. An employee's claim against his employer may be covered by the exclusive remedy provision of the Worker's Compensation Act even though his claim against fellow employees is not. Fields v. Cummins Emp. Fed. Credit Union (1989), Ind.App., 540 N.E.2d 631, 635.
Perry argues the trial court erroneously concluded that the Indiana Worker's Compensation Act provides his exclusive remedy. Stitzer defends on the grounds that the Act's...
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