                                                  Sep 05 2014, 10:07 am

FOR PUBLICATION


ATTORNEY FOR APPELLANT:                   ATTORNEY FOR APPELLEE:

JOHN S. (JAY) MERCER                      FREDERICK S. BREMER
Mercer Belanger                           ICRC Staff Counsel
Indianapolis, Indiana                     Civil Rights Commission
                                          Indianapolis, Indiana


                           IN THE
                 COURT OF APPEALS OF INDIANA

CARDINAL RITTER                           )
HIGH SCHOOL, INC.,                        )
                                          )
     Appellant-Respondent,                )
                                          )
           vs.                            )        No. 93A02-1401-EX-47
                                          )
ALEESHA BULLOCK,                          )
                                          )
     Appellee-Complainant.                )


       APPEAL FROM THE INDIANA STATE CIVIL RIGHTS COMMISSION
             The Honorable Noell F. Allen, Administrative Law Judge
                          Docket No. EDra08010034



                              September 5, 2014

                         OPINION–FOR PUBLICATION


BAKER, Judge
       Cardinal Ritter High School, Inc. (Ritter) appeals the determination of the

Administrative Law Judge (ALJ) for the Indiana Civil Rights Commission (ICRC)

finding that Ritter violated the Indiana Civil Rights Law (ICRL) when it did not select

appellee-complainant Aleesha Bullock as a member of the girls’ varsity basketball team.

Ritter argues that, as it is a private, religious institution owned and operated by the

Roman Catholic Archdiocese of Indianapolis, the ICRL is not applicable. Also, Ritter

contends that the findings of fact and conclusions of law issued by the ALJ are

unsupported by substantial evidence and maintains that the $25,000 award to Bullock for

emotional damages is based on speculative evidence.          We find that the ICRC has

jurisdiction over the girls’ basketball team at a private, religious institution. However, we

conclude that when, as here, the case hinged entirely on the credibility of the witnesses,

the issuance of an order by an ALJ who did not hear the evidence or observe the

witnesses is not in accordance with law, is contrary to the constitutional rights of the

parties, and is without observance of procedures required by law. Therefore, we vacate

the order of the ICRC and remand with instructions to conduct a new hearing and issue a

timely ruling.

                                          FACTS

        At the time the original complaint was filed, Ritter was a ministry of the Roman

Catholic Archdiocese of Indianapolis. Bullock, who is African-American, attended Ritter

and played on the girls’ varsity basketball team during the academic year of 2006-2007.

At that time, she was the team’s highest scorer.

                                             2
       However, Bullock was not selected to play for the varsity basketball team for the

2007-2008 term.     The basketball coaches, including Coach William Clark, felt that

Bullock had shown a lack of commitment to the basketball program because she had

chosen to play soccer rather than attend basketball conditioning. Clark told Bullock’s

parents that she was not chosen to play because many younger players were improving at

a faster rate and better fit with the way he wanted to develop the team in the future.

       On January 9, 2008, Bullock’s mother, Myrna Bullock, filed a complaint against

Ritter, alleging that Ritter had violated the ICRL. The complaint alleged that Ritter had

cut Bullock from the varsity basketball team because of her race. Ritter filed its answer

on February 8, 2008, and denied that the ICRC had subject matter jurisdiction. It also

refuted Bullock’s claim that she was not selected for the team due to her race,

maintaining that Bullock was not chosen for the team due to concerns over her level of

improvement and commitment to the basketball program.

       On October 21, 2009, ICRC Deputy Director Joshua Brewster determined that

there was not probable cause to believe that an unlawful discriminatory practice occurred.

Myrna Bullock initiated an appeal. On May 12, 2011, the ICRC reversed the finding of

no probable cause. At this point, Bullock, who was now of legal age to bring the

complaint on her own behalf, was substituted as the complainant.

       On May 23, 2012, a hearing was held before ALJ Robert Lange. At the hearing,

Bullock’s parents testified that Clark provided them with the following reasons for

cutting Bullock: 1) he was concerned about her commitment to the team due to the fact

                                             3
that she had consistently failed to attend summer basketball conditioning; 2) younger

players were playing at or above Bullock’s level; 3) he was choosing players who would

help to develop the team for the future; and 4) Bullock had not played at her usual level at

summer camp or at tryouts.

       When Clark testified at the hearing, the following exchange took place:

       Q: Is it true that at the meeting at the end of the tryouts – one of those
       meetings – it was considered by you whether to let Aleesha to be on the
       team but with the idea that she would not be playing very much?

       A: I think as a coaching staff I think you have to decide everything. If this
       player is not playing a lot, how does it affect this other player? If this
       player is not selected, how does that affect the other players? So as far as
       consideration, we considered that for all of our players, the ones that we
       selected and the ones that we did not select.

       Q: Is it not true that in Aleesha’s situation you were not dissuaded from
       letting her on that team in that capacity because of a personality conflict of
       some sort with Samantha Lynch.

       A: I would say Aleesha’s personality conflicts with members of the team
       would deal with the team chemistry issue. So in the selection of the team
       process, team chemistry or how the team gels together is considered. Like
       we mentioned before.

       Q: But do you agree that that was – what I think you testified to in your
       deposition – that that held you back from deciding to let Aleesha be on that
       team or even sitting on the bench?

       A: Well I think sitting on the bench during a game has little to do with if
       you’re on the team or not. You’re talking about at everyday practices, how
       are they going to be having this player here, how is it going to be not
       having that player here. How is this team going to gel based on the group
       you have in practice. Whether you bring up players from the JV or don’t
       even select as a player on the team, that’s how the team gels. So did that
       have a decision? It had a decision on how we selected our team. We


                                             4
       wanted to choose the team that would gel the most and also produce the
       most wins for us.

Administrative Hearing Tr. p. 276-278.

       The decision not to allow Bullock on the team in a limited-play basis was

discussed further:

       Q: Did you understand when you were answering these questions or
       making these statements that I was inquiring as to whether or not when you
       had these meeting after the tryouts, whether or not the alternative, which
       has been discussed much today, of letting Aleesha have the chance of
       letting Aleesha be a member of the team with the thought that she might not
       be able to play as much as, maybe, she expected.

       A: Was that considered?

       Q: Yes.

       A: That was considered for all the girls we cut.

Id. at 282.

       ALJ Lange retired before making a ruling on the case. The commission then

appointed Noell F. Allen as ALJ for the ICRC on July 2, 2013. ALJ Allen filed her

Proposed Findings of Fact, Conclusions and Order on July 19, 2013, finding that the

ICRC had jurisdiction over Bullock’s complaint as she was excluded from an opportunity

relating to education. ALJ Allen concluded that Ritter had violated the ICRL by cutting

Bullock from the girls’ basketball team due to her race and ordered Ritter to pay Bullock

$75,000.

        Ritter filed its objections to the Proposed Findings of Fact, Conclusions and Order

on August 2, 2013. ALJ Allen’s findings of facts included the following:

                                             5
                                          ...
2. Bullock is African American.

3. While enrolled as students of Ritter during their senior school year
spanning 2007-2008, both Bullock and Samantha Lynch (“Lynch”) tried
out for inclusion as members of the Varsity Team to that they could play on
that team during the 2007-2008 basketball season.

4. While Lynch was accepted as a member of the Varsity Team by the
coach, William Clark (“Clark”), he denied Bullock a place on the team
even on a limited-play basis. The final decision was Clark’s.

5. Clark who testified at the hearing is Caucasian.

6. During the Varsity Team’s basketball seasons corresponding to
Bullock’s and Lynch’s sophomore and junior years, both of them were
members of the Varsity Team. Bullock typically played as a point guard
and Lynch played as a two guard but they played these positions
interchangeably.

7. In her sophomore year, Bullock was the leading scorer of the Varsity
Team. And by the end of that season Bullock was awarded a [plaque]
recognizing her as having the highest number of steals and the second
highest number of assists.

8. In their junior (2006-2007) year together on the Varsity team, Bullock
and Lynch for the entire basketball season scored 235 and 151 total points
respectively, they made 20.68 points and 6.86 points respectively per game,
their field goals to field foals attempted were 40.8 percent and 29.3 percent
respectively, and their free throw to free throws attempted were 38.4
percent and 44.4 percent respectively. Their turnover rates for the season
were 18 and 115 respectively.
                                          ...

12. Clark ultimately explained barring Bullock from membership on the
Varsity Team even in a limited role capacity, saying this was because of
Bullock not getting along with other players, the only one of which Clark
specified was Lynch. However, at a meeting with Bullock’s parents, he
told them his reasons had to do with younger players already playing as
well as Bullock and that their participation in the Varsity Team best fit in
with his development of a better team in the future.

                                      6
       13. Clark has admitted girls to membership on Ritter’s girl’s junior varsity
       basketball team with the express understanding that they would not be put
       in play very much. He could have done the same for Bullock and even
       considered the possibility of doing so. In competitive play, Clark even
       allowed Kara Curtis, a member of the junior varsity team to [don] the
       varsity team uniform and play as a part of that team at times.
                                              ....

       18. It is reasonably inferred that by Bullock not being made a member of
       the Varsity Team during her senior year, this negatively affected Bullock’s
       chances to be recruited by colleges looking to place promising high school
       basketball players on their teams with tuition and other costs funded by
       scholarships. Nonetheless, Bullock signed the form that authorized Ritter
       to release basketball statistics to inquiring colleges, but as it turned out the
       full expense for the first year at Indiana State University and the final three
       years at Trine University fell on her and her parents. For the payment of
       this Bullock incurred $25,000 in debt, and her parents incurred $63,000.

       19. Bullock suffered emotional distress due to being excluded from
       membership on the Varsity Team during her senior year. She cried when
       she told her parents what had happened. She found herself unable to
       continue attending Varsity Team games as a spectator during her senior
       year because she cried so much the times she did attend. She avoided
       trying out to be on college basketball teams out of a fear of just being
       rejected again to her humiliation. The experience caused her to [doubt]
       herself and to feel betrayed. She only . . . seemed to regain some [self-
       confidence] by securing medication when she came of age.

Appellant’s App. p. iv-viii.

       Additionally, ALJ Allen’s conclusions of law included the following:
                                              ...

       11. There was a prima facie showing by a preponderance of the evidence
       that Ritter preferentially admitted the Caucasian Lynch to and excluded the
       African American Bullock from the Varsity Team for the 2007-2008
       basketball season. This is evidenced by the fact that for the immediately
       preceding 2006-2007 season, Bullock bested Lynch in all of the major
       statistical categories and dramatically so in the case of total points for the


                                              7
whole season, Bullock having scored 84 more points than Lynch scored,
making her the second highest scorer on the Varsity Team.

12. Once the prima facie case of unlawful discrimination is proven, it gives
rise to a presumption of discrimination and shifts the burden of production
to the respondent to rebut the presumption. St. Mary’s Honor Center v.
Hicks, 589 U.S. 5012, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993). In short,
it becomes [the] respondent’s burden to produce evidence that the adverse
action in question was taken for a legitimate, nondiscriminatory reason. St.
Mary’s, supra.

13. Ritter rebutted the presumption of discrimination by articulating a
nondiscriminatory reason for Clark denying Bullock Varsity Team
membership on just a limited-play basis during the 2007-2008 season;
Clark explained the denial, saying it was because Bullock did not get along
with Lynch and with other albeit unnamed team members.

14. Upon Ritter’s articulation of the nondiscriminatory reason, Bullock
assumes the burden to prove that the adverse decision was the result of
intentional discrimination based on an impermissible discriminatory motive
(Burdine, supra, 450 U.S. at 256). This may be done indirectly by showing
that the stated reason for the adverse action was a pretext for the sort of
discrimination prohibited by law, meaning proof that the given reason was
false and the real reason was discrimination. St. Mary’s Honor Center v.
Hicks, supra, 113 S. Ct. At 2752 n. 6. However, these two aspects of the
requisite level of proof may be simply realized in one step for the United
States Supreme Court has determined that the ultimate fact of
discrimination may be inferred from the falsity of the nondiscriminatory
explanation. Reeves v. Sanderson Plumbing Products, Inc., 120 S. Ct.
2097, 2108 (2000).

15. Bullock proved that Ritter’s articulated reason for denying her
membership in the Varsity Team on a limited-play basis was a pretext for
discrimination, that it was likely false, on account of the following:

      a. Very soon after Ritter denied Bullock membership on the Varsity
      Team in her senior year, Clark’s explanation to Bullock’s parents of
      why he made the decision to not admit Bullock to the Varsity Team
      included no reference to Bullock’s relationship to Lynch or other
      team members. This supports a conclusion that Clark was not really


                                     8
             motivated to deny Bullock membership on the basis of any conflict
             between her and Lynch and the other Varsity team members.

             b. The evidence of the highly subjective quality of Clark’s reason for
             denying Bullock membership in the Varsity team on a limited-play
             basis [sic]. Outside of Lynch, he did not even name the other team
             members with whom Bullock was supposed to have had a bad
             relationship[,] much less specify any factual basis for such
             conclusions regarding these unnamed persons. And Ritter’s only
             specially stated evidence of Bullock and Lynch not getting along
             with each other were the statements of Joy Hoy. She is the principal
             of Ritter. In addition to just generally and subjectively saying that
             Bullock and Lynch did not get along, she specified that Lynch told
             her she wanted to be transferred out of Ritter as a consequence of
             Bullock’s treatment of her. However there was no evidence by way
             of testimony of Hoy or by any other means indicating that when
             Clark denied Bullock membership on the Varsity Team he was
             aware of Hoy’s specific information and/or that Hoy had shared this
             information with Clark. At best, Clark testified that he subjectively
             “thought” that Bullock said something that made the relationship
             between Bullock and Lynch not a good one.

      16. In that Ritter’s and Clark’s reason for denying Bullock membership on
      the Varsity Team in even just a limited role is a pretext for discrimination
      on the basis of race contrary to the Indiana Civil Rights Law, Bullock
      sustained her burden of proving that Ritter denied to her an education
      opportunity contrary to the Indiana Civil Rights Law and is entitled to
      damages sufficient to compensate her for the harm Ritter’s discriminatory
      acts caused her.

Appellant’s App. p. 62-71.

      On November 15, 2013, oral argument was held before the ICRC, and on

December 30, 2013, the ICRC adopted ALJ Allen’s Proposed Findings of Fact,

Conclusions and Order. The ICRC also reduced the monetary award from $75,000 to

$25,000, which it stated was an award for emotional distress.

      Ritter now appeals.

                                            9
                                DISCUSSION AND DECISION

       When reviewing a decision of an administrative agency, we apply the same

standard as the trial court. Ind. Dep’t. of Natural Res. v. Hoosier Envtl. Council, Inc.,

831 N.E.2d 804, 808 (Ind. Ct. App. 2005). We will reverse the Board’s order only if it is

“(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(2) contrary to a constitutional right, power, privilege or immunity; (3) in excess of

statutory jurisdiction, authority, or limitation, or short of statutory right; (4) without

observance of procedure required by law; or (5) unsupported by substantial evidence.”

Id. at 809; Ind. Code § 4-21.5-5-14(d)(1)-(5). We give deference to the expertise of the

agency and will not reverse simply because we may have reached a different result than

the Commission. Ind. Civil Rights Comm’n v. Adler, 714 N.E.2d 632, 635 (Ind. 1999).

The burden of demonstrating the invalidity of an action is on the party challenging its

validity. Ind. Code § 4-21.5-5-14(a). An interpretation of statutes and regulations by the

administrative agency charged with enforcing those statutes and regulations is entitled to

great weight, Ind. Dept. of Envtl. Mgmt. v. Steel Dynamics Inc., 894 N.E.2d 271, 274

(Ind. Ct. App. 2008).

                                          I. Jurisdiction

       At the outset, we address Bullock’s contention that Ritter has waived its

jurisdictional arguments. Bullock argues that Ritter may not assert lack of jurisdiction

when it failed to do so in its objections to the findings of fact and conclusions of law.

However, while Bullock is correct that generally, when an ALJ has issued a non-final

                                            10
order recommended for adoption by the ICRC, issues are only preserved by assertion of

objections to the recommendation under Indiana Code section 4-21.5-3-29, subject matter

jurisdiction may not be waived or conferred by agreement, and may be raised by the

parties at any time, including on appeal. Weldon v. Universal Reagents, Inc., 714 N.E.2d

1104, 1107 (Ind. Ct. App. 1999). Therefore, Ritter has not waived its jurisdictional

arguments.

       Turning to the merits, we address the issue of whether the ICRL applies to

Bullock’s claim. Ritter challenges ALJ Allen’s conclusion that the ICRC has jurisdiction

over Ritter because participation on the girls’ varsity basketball team at Ritter “relates to”

education under Indiana Code section 22-9-1-3(l).

       The goal of statutory construction is to determine, give effect to, and implement

the intent of the legislature. Sales v. State, 723 N.E.2d 416, 420 (Ind. 2000). The best

evidence of legislative intent is surely the language of the statute itself, and courts strive

to give the words in a statute their plain and ordinary meaning. A statute should be

examined as a whole, avoiding excessive reliance upon a strict literal meaning or the

selective reading of individual words. Prewitt v. State, 878 N.E.2d 184 (Ind. 2007).

       The purpose of the ICRL is “[t]he promotion of equal opportunity without regard

to race, religion, color, sex, disability, national origin, or ancestry through reasonable

methods.” Ind. Code § 22-9-1-2(b). This aligns with the public policy underlying the

statute:



                                             11
       It is the public policy of the state to provide all of its citizens equal
       opportunity for education, employment, access to public conveniences and
       accommodations, and acquisition through purchase or rental of real
       property, including but not limited to housing, and to eliminate segregation
       or separation based solely on race, religion, color, sex, disability, national
       origin, or ancestry, since such segregation is an impediment to equal
       opportunity. Equal education and employment opportunities and equal
       access to and use of public accommodations and equal opportunity for
       acquisition of real property are hereby declared to be civil rights.

I.C. § 22-9-1-2(a).

       In order to effect the purpose and policies underlying the ICRL, discriminatory

practices are prohibited. The ICRL defines discriminatory practice as follows:

       (1) the exclusion of a person from equal opportunities because of race,
       religion, color, sex, disability, national origin, ancestry, or status as a
       veteran;

       (2) a system that excludes persons from equal opportunities because of
       race, religion, color, sex, disability, national origin, ancestry, or status as a
       veteran;

       (3) the promotion of racial segregation or separation in any manner,
       including but not limited to the inducing of or the attempting to induce for
       profit any person to sell or rent any dwelling by representations regarding
       the entry or prospective entry in the neighborhood of a person or persons of
       a particular race, religion, color, sex, disability, national origin, or ancestry;
       or

       (4) a violation of IC 22-9-5 that occurs after July 25, 1992, and is
       committed by a covered entity (as defined in IC 22-9-5-4).

I.C. § 22-9-1-3(l).    That section further states that “[e]very discriminatory practice

relating to the acquisition or sale of real estate, education, public accommodations,

employment, or the extending of credit . . . shall be considered unlawful unless it is

specifically exempted by this chapter.” Id. (emphasis added).

                                              12
       Ritter argues that to construe membership on the extracurricular girls’ basketball

team at a private, religious high school as within the ICRC’s jurisdiction is “contrary to

the language and structure of the statute and creates absurd results.” Appellant’s Br. p. 8.

Specifically, Ritter argues that the ICRC’s finding that it had jurisdiction over

extracurricular activities at Ritter because Ritter engages in activities relating to

education is inconsistent with the statute as a whole. As support for this argument, Ritter

points to the exclusion of “any school, educational, or charitable religious institution

owned or conducted by or affiliated with a church or religious institution” from the

definition of “employer” for purposes of employment discrimination. I.C. § 22-9-1-3(h).

Ritter implies that the legislature’s decision to exempt private, religious institutions from

the definition of “employer” evidences an intent to exempt the same from the jurisdiction

of the ICRL for purposes of discrimination relating to education.

       However, we find that a plain reading of the statute renders Ritter’s interpretation

untenable. First, we note that the legislature explicitly indicated that the ICRL “shall be

construed broadly to effectuate its purpose.” I.C. section 22-9-1-2(g). Second, the ICRL

clearly states that “[e]very discriminatory practice relating to the acquisition or sale of

real estate, education, public accommodations, employment, or the extending of credit . .

. shall be considered unlawful unless it is specifically exempted by this chapter.” I.C. §

22-9-1-3(l) (emphasis added).       The legislature chose to exempt private, religious

institutions from the ICRC’s jurisdiction with regard to employment discrimination

complaints; they did not choose to provide the same exemption for discrimination

                                             13
“relating to . . . education.” Id. Therefore, we find that membership on the girls’ varsity

basketball team at Ritter relates to education under the statute and Bullock’s complaint

comes within the jurisdiction of the ICRC.

                                  II. Constitutional Claims

       Ritter also contends that to affirm the ALJ’s determination that the ICRC has

jurisdiction over Ritter because participation on the girls’ varsity basketball team at Ritter

relates to education would violate Ritter’s rights to religious liberty and expressive

association under both the United States Constitution and the Indiana Constitution.

       In support of this argument, Ritter points us to N.L.R.B v. Catholic Bishop of

Chicago, 440 U.S. 490 (1979), in which the United States Supreme Court determined that

the National Labor Relations Board could not exercise jurisdiction over teachers in

religiously operated institutions because such exercise would violate the guarantees of the

religion clauses of the First Amendment. In that case, the Supreme Court focused on “the

unique role of the teacher in fulfilling the mission of a church operated school,” and the

“importance of the teacher’s function in a church school.” Id. at 501. The opinion

focused on the church-teacher relationship and cited concerns regarding the religious

entanglement that might result when the Board might be asked to investigate claims of

unfair labor practices where a religious school claimed that such practices were mandated

by religious creeds; the Court stated that an inquiry into those claims would “necessarily

involve inquiry into the good faith of the position asserted by clergy administrators and

its relationship to the school’s religious mission.” Id. at 502.

                                             14
       This case does not involve employment; if it did, Ritter would be exempted by the

ICRL. I.C. § 22-9-1-3(h). Rather, this case involves Bullock’s claim that she was

excluded from an opportunity related to education and discriminated against on the basis

of her race. To affirm the determination of the ALJ and award Bullock damages for

emotional distress does not implicate interference with the religious creed of the Roman

Catholic faith. Therefore, Ritter’s reliance on N.L.R.B v. Catholic Bishop of Chicago is

misplaced.

       Ritter next argues that the United States Supreme Court has recognized that

forbidding “interference in matters concerning religious doctrine and organization and by

dictating neutrality on the part of our courts” allows religious organizations to determine

matters of church government, faith, and doctrine without State interference. Appellant’s

Br. p. 14. Ritter cites several cases to support this principle.

       However, none of the cases cited by Ritter have bearing on the instant case. In

Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in North America, the

United States Supreme Court determined that a New York statute that attempted to

transfer control of churches violated the free exercise clause of the First Amendment.

344 U.S. 94 (1952). In Kreshik v. Saint Nicholas Cathedral, the United States Supreme

Court dismissed a complaint asking the Court to determine the right to use and occupancy

of a Cathedral as the question was strictly a matter of ecclesiastical government. 363

U.S. 190 (1960). The Supreme Court of Maine held that the First Amendment barred a

husband and wife’s negligent supervision complaint against a priest from whom they had

                                              15
received marriage counseling in Swanson v. Roman Catholic Bishop of Portland, 692

A.2d 441 (Me. 1997). In Pentecostal Tabernacle of Muncie v. Pentecostal Tabernacle of

Muncie, this Court determined that to decide who was right between two disputing

religious factions would constitute an interference with religious freedom. 146 N.E.2d

573, 128 Ind. App. 145 (Ind. Ct. App. 1957). And in McEnroy v. St. Meinrad School of

Theology, this Court found that resolving a terminated professor’s contract claims would

excessively entangle the Court in religious affairs. 713 N.E.2d 334 (Ind. Ct. App. 1999).

       All of the above cases cited by Ritter deal with administrative/teaching functions

or ecclesiastical government; they deal directly with matters of faith and creed. The case

before us involves a complaint of racial discrimination against a student who wished to

be admitted to play on the girls’ varsity basketball team. We do not find that Ritter’s

rights under either the United States Constitution or the Indiana Constitution are

implicated here.

                                      III. Procedural Issues

       While we find that the ICRC did have jurisdiction over the girls’ basketball team

at Ritter, we must address the serious procedural inadequacies that present themselves in

this case.

       First, it is evident from the record that the ICRC took an inordinate amount of time

to perform its statutory duties. Bullock was denied admission to the girls’ basketball

team in the fall of 2007. Appellant’s App. p. 63. Her mother filed a claim with the ICRC

in January 2008. Id. at 1. In May 2012, the same year that Bullock’s high school class

                                            16
graduated from college, the matter was heard by an ALJ. Id. at 61. Then in July 2013,

more than a full year after the evidentiary hearing, a different ICRC ALJ issued its

Proposed Findings of Facts, Conclusions and Order, which were amended and adopted by

the ICRC on December 30, 2013, more than six years after Bullock was cut from the

girls’ basketball team. Id. at 61-62. We find that such a delay cannot be considered

appropriate.

       Second, the procedure utilized by the ICRC was deficient. Courts that review

administrative decisions are prohibited from reweighing the evidence or judging the

credibility of witnesses and must accept the facts as found by the administrative body.

Natural Res. Comm'n v. Sugar Creek Mobile Estates, 646 N.E.2d 61, 64 (Ind. Ct. App.

1995). This prohibition arises from the fact that the administrative agency, through its

duly appointed ALJ, is the party who heard directly the witnesses’ testimony, observed

their demeanor, and determined their credibility.

       Here, the ALJ who heard the witnesses’ testimony retired six months after the

hearing in this matter and did not enter proposed findings. Then, a different ALJ, who

did not hear the parties’ testimony, did not observe their demeanor, and did not make any

credibility determinations based on what she heard or observed, entered the Proposed

Findings of Fact, Conclusions and Order. Therefore, in entering the proposed findings,

the ALJ was weighing evidence that she did not hear and determining the credibility of

witnesses that she did not see.



                                            17
      As the ALJ entered her Proposed Findings of Fact, Conclusions and Order without

personally observing the demeanor of the witnesses, she was effectively in the same

position this Court usually holds as a reviewing court. We have previously held that,

when examining “cold evidence,” a reviewing court may “assess independently this

evidence without invading the province of the trial court.” State v. Bisard, 973 N.E.2d

1229, 1237 (Ind. Ct. App. 2012) (holding that an independent assessment of blood

evidence was appropriate); See also Bunch v. State, 964 N.E.2d 274, 293 (Ind. Ct. App.

2012) (holding that it was not necessary to defer to the post-conviction court’s

assessment of expert’s scientific evidence where the assessment was not based on

demeanor but on evidence that was also in front of the appellate court). However, in

Bisard and Bunch, the evidence to be examined did not involve credibility; if it had, “we

would defer to the post-conviction court’s assessment of fact witnesses.” Id.

      Here, the case hinges entirely on credibility. ALJ Allen found, as a conclusion of

law, that Ritter’s nondiscriminatory explanation for cutting Bullock from the team–that

Bullock was not admitted to the team on a limited-play basis because she did not get

along with the other girls–was a pretext for discrimination. ALJ Allen also found that,

because Clark’s explanation to Bullock’s parents regarding Bullock’s exclusion from the

team cited other reasons, and did not include information about Bullock’s ability to get

along with other members of the team, such a reason was a pretext. Id.

      The danger inherent in the issuance of an order by an ALJ who did not hear the

evidence and must make credibility determinations becomes apparent when one looks to

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the record in this case, which shows that ALJ Allen erroneously determined that Ritter

proffered the explanation that Bullock did not get along with other players as a

nondiscriminatory purpose for cutting Bullock from the girls’ varsity basketball team.

Clark and the other coaches made two decisions concerning Bullock. First, the coaches

determined which of the forty-one girls who tried out for the varsity team should be cut.

Administrative Hearing Tr. p. 277. After they made cuts, they determined which of the

girls who had been cut would be suitable to be members of the team on a limited-play

basis, wherein they would perhaps get limited playing time or help the team in other

ways. Id. at 277, 282.

       The record shows that when considering the first decision, whether to cut Bullock

from the team, Clark and the other coaches never mentioned that she did not get along

with other girls. Rather, they gave the reasons which he cited to her parents–that Bullock

was not improving as quickly as some of the girls, that he questioned her commitment to

the team due to her failure to participate in summer workouts and conditioning, and that

choosing younger players who were playing at or beyond Bullock’s level was a better

decision for the team’s future. Id. at 201, 209, 213, 217, 218, 223, 233, 252, 257.

       Once Clark and the other coaches had determined which girls to cut from the

team, they then considered whether to allow some of the girls to play on a limited-play

basis. It was when making this second decision that it was determined that Bullock’s

issues with Lynch and other teammates might make for bad team chemistry and that

Bullock was unlikely to be happy playing in a limited capacity. Id. at 277 – 284. The

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record shows that Clark understood that, when he cited team chemistry as a reason for

excluding Bullock from the team in a limited-play capacity, he was looking at a separate

decision from allowing her on the team in a full capacity.   Indeed, Clark testified that he

made a determination regarding limited-play membership “for all the girls that we cut.”

Id. at 282.

       Therefore, two separate sets of nondiscriminatory reasons were provided for two

distinct sets of decisions. The nondiscriminatory purpose underlying the decision not to

allow Bullock on the team in a limited-play capacity was not a pretext for discrimination.

A separate nondiscriminatory purpose was set forth for cutting Bullock from the team in

a full-capacity role.

       We find that when, as here, a case hinges entirely on credibility, the issuance of an

order by an ALJ who did not hear the evidence or observe the witnesses is not in

accordance with law, is contrary to the constitutional rights of the parties, and is without

observance of procedures required by law. Therefore, we vacate the order of the ICRC

and remand with instructions to conduct a new hearing and issue a timely ruling.

       The judgment of the ICRC is vacated and remanded.

KIRSCH, J., and ROBB, J., concur.




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