                                                                                 FILED
                                                                            Dec 08 2017, 8:48 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Rosemary L. Borek                                         Michael C. Healy
Stephenson Morow & Semler                                 Staff Counsel
Indianapolis, Indiana                                     Indiana Civil Rights Commission
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Roman Marblene Co., Inc.,                                 December 8, 2017
Appellant-Respondent,                                     Court of Appeals Case No.
                                                          93A02-1701-EX-91
        v.                                                Appeal from the Indiana Civil
                                                          Rights Commission
Reginald Baker,                                           Alpha Blackburn, Commissioner
Appellee-Complainant                                      Sheryl Edwards, Commissioner
                                                          Steven Ramos, Commissioner
                                                          Ahmed Young, Commissioner

                                                          Docket No.
                                                          EMra10110533



Crone, Judge.




Court of Appeals of Indiana | Opinion 93A02-1701-EX-91 | December 8, 2017                     Page 1 of 17
                                              Case Summary
[1]   Roman Marblene Co, Inc. (“Roman Marblene”), appeals the decision of the

      Indiana Civil Rights Commission (“ICRC”) in favor of Reginald Baker. Baker

      filed a complaint alleging that his former employer, Roman Marblene,

      discriminated against him on the basis of race. Following an evidentiary

      hearing before an administrative law judge (“ALJ”), the ALJ entered a

      proposed order determining that Roman Marblene had not engaged in an

      unlawful discriminatory practice. Baker objected to the proposed order, and the

      ICRC heard oral argument on the objections. Thereafter, the ICRC reversed

      the ALJ, entered a final order determining that Roman Marblene unlawfully

      discriminated against Baker, and awarded him damages for lost wages. On

      appeal, Roman Marblene contends that the ICRC’s final order is invalid

      because the ICRC was without authority to reverse the ALJ’s determination.

      Roman Marblene further asserts that the ICRC’s order is void because it was

      issued outside the statutorily prescribed time period. Finding that Roman

      Marblene has not met its burden to establish the invalidity of the ICRC’s final

      order, and concluding that the order is not void, we affirm.


                                   Fact and Procedural History
[2]   The facts most favorable to the ICRC’s decision indicate that Roman Marblene

      is a small company located in Corydon that manufactures molded bathroom

      fixtures such as sinks, tubs, and showers. In 1999, company owner Bruce

      Hoese hired Baker, an African-American male. Baker’s duties at Roman

      Marblene included: operating a gel-coat sprayer; setting up molds; installing

      Court of Appeals of Indiana | Opinion 93A02-1701-EX-91 | December 8, 2017   Page 2 of 17
      hats on casted molds; removing casting for the molds; maintaining and

      repairing machinery; operating a forklift; and maintaining facilities equipment.

      In 2005, Roman Marblene was purchased by James Triantos.1 After the

      purchase, Baker became the only African-American employee of the company.

      He was often subjected to racial slurs and harassment.


[3]   In December 2009, Baker was involved in an automobile accident and was

      placed under a doctor’s care for one week due to an injured hand. That same

      week, the Roman Marblene plant was shut down for the holidays. The plant

      reopened on January 4, 2010. On that day, Baker had an appointment and

      went to see his physician. Triantos docked Baker one day’s pay for failing to

      call in sick in advance. Baker was the first salaried employee to be treated this

      way for failing to call in advance.


[4]   Baker returned to work on January 5, and he was able to perform all of his

      work assignments. He is ambidextrous and performed his job using one hand.

      Baker’s production supervisor, David Hunter, observed that Baker had no

      problems with his job duties, including operating the spray gun or lifting items

      weighing more than 100 pounds. Baker’s coworkers, Michael Wiseman, Jason

      Lawalin, and Jamie Carney, also observed that, even after his injury, Baker had

      no difficulty performing his job. It is common practice and expected at Roman




      1
        The record indicates that James Triantos and his brother Frank Triantos were co-owners. However, James
      is the current president, and we will refer to him hereinafter as Triantos.

      Court of Appeals of Indiana | Opinion 93A02-1701-EX-91 | December 8, 2017                    Page 3 of 17
      Marblene that coworkers help each other with tasks such as lifting when

      necessary.


[5]   On January 19, 2010, when Baker learned that Triantos had docked him one

      day’s pay for failing to call in advance on January 4, Baker protested in writing

      to Triantos. Then, on January 21, 2010, Triantos came into the work area and

      asked Baker to change the head of the spray gun. Baker replied that he could

      not work on the spray gun because another employee, whom he was training,

      was using it at the time. Triantos claimed that Baker refused to perform the

      requested task due to a medical restriction, but several witnesses did not

      corroborate Triantos’s version of events and instead corroborated Baker’s

      version of events. Later that day, Triantos formally placed Baker on

      involuntary unpaid medical leave. Thereafter, Baker made frequent attempts to

      return to work. Triantos continually rejected Baker’s attempts to return. At

      least four similarly situated Caucasian Roman Marblene employees with

      medical impairments were not treated in the same manner and not placed on

      involuntary medical leave.


[6]   On March 8, 2010, Baker filed a discrimination charge with the Equal

      Employment Opportunity Commission (“EEOC”) alleging that Roman

      Marblene discriminated against him on the basis of race in violation of Title VII

      of the Civil Rights Act of 1964. The complaint was transferred to and docketed

      by the ICRC on March 24, 2010.




      Court of Appeals of Indiana | Opinion 93A02-1701-EX-91 | December 8, 2017   Page 4 of 17
[7]   Over the next several months, Baker went to Roman Marblene on several

      occasions to try to return to work. As of September 14, 2010, Baker returned to

      Roman Marblene with his physician’s statement attesting to his ability to return

      to “regular duty” at work. Respondent’s Ex. R. The statement did not list any

      medical restrictions. Nevertheless, Triantos continued to tell Baker that he was

      not “100 percent.” Tr. Vol. 2 at 166. Triantos also objected to Baker using the

      back door to come into his office, although Caucasian employees used the back

      door without objection from Triantos. On October 12, 2010, Baker returned to

      the Roman Marblene plant for the final time in an effort to get his job back.

      This time he had a physician’s statement that said he was 100 percent fit to

      return to work with a specific “No restrictions” notation. Respondent’s Ex. T.

      Triantos refused to allow Baker to return and instead told Baker that he would

      need to see all of Baker’s medical records. Following a verbal confrontation

      between Baker and Triantos, Triantos ordered Baker off the premises,

      effectively terminating his employment.


[8]   On July 22, 2011, the ICRC issued a determination of probable cause to believe

      that discriminatory practices occurred. A year later, after conducting discovery,

      Roman Marblene filed a motion for summary judgment. An ALJ held a

      hearing and issued an order granting summary judgment in favor of Roman

      Marblene.




      Court of Appeals of Indiana | Opinion 93A02-1701-EX-91 | December 8, 2017   Page 5 of 17
[9]    Baker filed his objections to the summary judgment order, and, after a meeting

       on April 25, 2014, the ICRC issued an order remanding the case to the ALJ for

       a hearing on the merits.2 The ALJ conducted a two-day evidentiary hearing on

       April 8 and 9, 2015. On March 4, 2016, the ALJ entered proposed findings of

       fact and conclusions of law, determining that Baker failed to meet his burden to

       establish that Roman Marblene discriminated against him on the basis of race.


[10]   Baker filed his objections to the ALJ’s proposed findings and conclusions on

       March 21, 2016. The ICRC heard oral argument on May 27, 2016, and

       thereafter, on December 19, 2016, issued findings of fact and conclusions of law

       determining that Baker met his burden of establishing that Roman Marblene

       discriminated against him on the basis of race. Specifically, the ICRC

       concluded in relevant part as follows:


               7. Baker met his burden of establishing a prima facie case under
               the McDonnell Douglas Corp. v. Green, [411 U.S. 792 (1973)],
               standard by demonstrating that: (1) he is a member of a protected
               class, a person with a disability; (2) he was qualified to hold the
               position in question; (3) he was able to and did perform the work
               at the standard set by the employer; (4) he was placed on
               involuntary medical leave by his employer; (5) he was denied the
               opportunity to return to work despite repeated requests; (6) he
               was effectively terminated from his employment; and (7)
               similarly situated Caucasian co-workers, having similar or worse
               impairments, were allowed to continue working there.



       2
         Roman Marblene filed a motion to reconsider the remand order after the public access counselor found that
       the ICRC’s deliberations off the record violated the Open Door Law. In its brief, Roman Marblene states
       that although it is not reflected in the record, the ICRC openly deliberated at an October 24, 2014, hearing
       and voted to grant the motion to reconsider but declined to reverse its order remanding the case to the ALJ.

       Court of Appeals of Indiana | Opinion 93A02-1701-EX-91 | December 8, 2017                       Page 6 of 17
        8. Roman Marblene met its burden of proffering a legitimate,
        non-discriminatory reason for its decision not to allow Baker to
        return to work; that being: (a) Baker’s hand had not sufficiently
        healed; (b) Baker arguing with his employer forced his
        termination; and (c) co-workers were not similarly situated.


        9. Baker has proven by a preponderance of the evidence that the
        reasons proffered by Roman Marblene were pretextual and
        unworthy of credence. These include the following:


        a. “Baker’s hand had not sufficiently healed.”


        This is pretextual because it stands in sharp contrast to: (a)
        overwhelming eyewitness testimony, including supervisors’
        testimony, that Baker was able to perform all of his assigned
        work; and (b) competent medical reports evidencing Baker’s
        ability to return to work without any restrictions.


        b. “[Baker’s] arguing with his employer forced his termination.”


        This is pretextual in light of the fact that Baker had, on at least
        three (3) occasions, presented Triantos with medical release
        forms permitting him to return to work. The fourth slip was the
        one which stated unequivocally, “no restrictions”. Triantos’[s]
        reaction that he first needed to see all of Baker’s medical records
        is deemed to be disingenuous, provocative and unworthy of
        credence. Where harassment is intended to provoke a response
        from the plaintiff in order to get him fired, the decision to
        terminate is not neutral, but discriminatory. Baker was treated in
        such a provocative manner, revealing Triantos’[s] intent to
        terminate him.


        c. “The co-workers were not similarly situated to Baker.”



Court of Appeals of Indiana | Opinion 93A02-1701-EX-91 | December 8, 2017   Page 7 of 17
        This is pretextual for the reason that all employees in the small
        workshop, regardless of job title, helped one another with their
        assigned duties; including lifting, as needed. Furthermore, other
        employees, including Belty and Bauer, were given work
        restrictions, had their job duties modified, or were given frequent
        assistance by co-workers. Unlike Baker, neither of these men
        was placed on involuntary medical leave.


        d. “Baker was placed on medical leave because he refused to
        perform a task given to him by Triantos, due to his medical
        restrictions.”


        This is also pretextual because it is accepted that Baker did not
        refuse to perform the task, but that he could not do so because co-
        worker Brown was then using the spray gun. Baker did not
        refuse to perform any task assigned to him by Triantos because of
        a hand injury.


        10. If there was any doubt as to Baker’s ability to perform his job
        in January of 2010, there could be no doubt that he was able to
        perform his duties after September 14, 2010. This was one (1)
        month before he was actually terminated by Triantos. In
        September, Baker presented to Triantos a physician’s statement
        stating “no restrictions”. In response, Triantos still refused to
        allow Baker to return to work.


        11. Baker’s final attempt to return to work was in October of
        2010, with yet another physician’s statement stating “no
        restrictions”, and he was met by yet another refusal by Triantos
        and, this time, Baker was evicted from the premises.


        12. It is accepted that Baker could and did perform the work, at
        the standard set by the employer, as of January 22, 2010. Roman
        Marblene’s subsequent refusals to allow Baker to return to work
        were illegal.

Court of Appeals of Indiana | Opinion 93A02-1701-EX-91 | December 8, 2017   Page 8 of 17
               13. The [Indiana Civil Rights Law (“ICRL”)] makes it a
               discriminatory practice to exclude a person from equal
               opportunities in employment because of, among other things,
               race. Every discriminatory practice relating to employment is
               unlawful, unless it is specifically exempted by the ICRL.
               Because there is no applicable exemption for such a practice, it
               was unlawful.


       Appealed Order at 11-13.


[11]   The ICRC ordered Roman Marblene to cease and desist from terminating its

       qualified employees on the basis of race and awarded Baker $96,228.40 in

       damages for lost wages. This appeal ensued.


                                       Discussion and Decision
[12]   Roman Marblene appeals a final order of the ICRC. This Court has explained,


               When reviewing a decision of an administrative agency, we
               apply the same standard as the trial court. We will reverse the
               [Agency’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. 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. The burden of demonstrating the invalidity of an
               action is on the party challenging its validity. An interpretation
               of statutes and regulations by the administrative agency charged
               with enforcing those statutes and regulations is entitled to great
               weight.



       Court of Appeals of Indiana | Opinion 93A02-1701-EX-91 | December 8, 2017   Page 9 of 17
       Cardinal Ritter High Sch., Inc. v. Bullock, 17 N.E.3d 281, 287 (Ind. Ct. App. 2014)

       (citations and quotation marks omitted).


[13]   ICRL reflects our State’s public policy 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.... The
               practice of denying these rights to properly qualified persons by
               reason of the race, religion, color, sex, disability, national origin,
               or ancestry of such person is contrary to the principles of freedom
               and equality of opportunity and is a burden to the objectives of
               the public policy of this state and shall be considered as
               discriminatory practices.


       Ind. Code § 22-9-1-2(a), -(b). In accordance with this public policy, the ICRC is

       afforded certain authority and charged with certain responsibilities, including

       the responsibility to “receive and investigate complaints alleging discriminatory

       practices.” Ind. Code § 22-9-1-6(d). The ICRC “shall state its findings of fact

       after a hearing” and, if it “finds a person has engaged in an unlawful

       discriminatory practice, shall cause to be served on this person an order

       requiring the person to cease and desist from the unlawful discriminatory

       practice and requiring the person to take further affirmative action as will

       effectuate the purposes of this chapter ….” Ind. Code § 22-9-1-6(j) (emphasis

       added).


       Court of Appeals of Indiana | Opinion 93A02-1701-EX-91 | December 8, 2017   Page 10 of 17
[14]   “Discriminatory practice” includes “the exclusion of a person from equal

       opportunities because of race, religion, color, sex, disability, national origin,

       ancestry, or status as a veteran.” Ind. Code § 22-9-1-3(l). “Every

       discriminatory practice relating to … employment … shall be considered

       unlawful unless it is specifically exempted by this chapter.” Id. The ultimate

       burden of persuasion that the defendant engaged in unlawful discrimination

       remains at all times with the plaintiff. Gaff v. Indiana-Purdue Univ. of Fort Wayne,

       51 N.E.3d 1163, 1165 (Ind. 2016) (citing Ind. Civil Rights Comm’n v. Culver Educ.

       Found., 535 N.E.2d 112, 115 (Ind. 1989)).


[15]   Here, the ICRC entered extensive findings of fact and conclusions of law

       determining that Baker met his burden to prove that Roman Marblene engaged

       in unlawful discrimination. Roman Marblene asserts that the ICRC was

       without authority to reweigh the evidence and disregard the proposed findings

       and conclusions of the ALJ. We disagree.


[16]   Throughout its brief on appeal, Roman Marblene appears to confuse the

       ICRC’s standard of review with that of a reviewing court such as this Court.

       Indeed, courts that review administrative determinations, at both the trial and

       the appellate level, review the record in the light most favorable to the

       administrative proceedings and are prohibited from reweighing the evidence or

       judging the credibility of witnesses. Whirlpool Corp. v. Vanderburgh Cty.-City of

       Evansville Human Relations Comm’n, 875 N.E.2d 751, 759 (Ind. Ct. App. 2007).

       Our review is restricted to determining whether there is substantial evidence to

       support the agency’s decision, primarily whether its decision was arbitrary,

       Court of Appeals of Indiana | Opinion 93A02-1701-EX-91 | December 8, 2017   Page 11 of 17
       capricious, an abuse of discretion, or in excess of its statutory authority. Id. at

       760.


[17]   No similar restriction is placed on the administrative agency, here the ICRC.

       It is well settled that administrative agencies can make findings on issues of

       credibility without taking live testimony, and moreover, the agency’s review

       board is the ultimate trier of fact and may weigh the evidence before it. Russell

       v. Review Bd. of Ind. Dep’t of Emp’t & Training Servs., 586 N.E.2d 942, 946-47

       (Ind. Ct. App. 1992) (citing St. Mary’s Med. Ctr. of Evansville, Inc. v. Review Bd. of

       Ind. Emp’t Sec. Div., 493 N.E.2d 1275, 1277 (Ind. Ct App. 1986)). As the

       agency charged with the responsibility and the authority to investigate

       complaints alleging discriminatory practices, see Ind. Code § 22-9-1-6(d), the

       ICRC is the ultimate authority on whether a person has engaged in an unlawful

       discriminatory practice.


[18]   Pursuant to both ICRL and the Indiana Administrative Orders and Procedures

       Act (“AOPA”), the agency’s ultimate authority may, in its discretion, appoint

       or designate an ALJ to conduct a factfinding hearing. Ind. Code § § 22-9-1-6(i),

       4-21.5-3-9 (emphasis added). Contrary to Roman Marblene’s assertions, the

       ultimate authority is not then constrained to accept the ALJ’s proposed findings

       and conclusions simply because it chose in its discretion to utilize this

       procedure for conducting its investigation and factfinding. Rather, after an ALJ

       issues a proposed order, “the ultimate authority or its designee shall issue a final

       order: (1) affirming; (2) modifying; or (3) dissolving” the ALJ’s order. Ind.

       Code § 4-21.5-3-29(b).

       Court of Appeals of Indiana | Opinion 93A02-1701-EX-91 | December 8, 2017   Page 12 of 17
[19]   Despite the clear statutory authority of the ICRC to issue a final order

       affirming, modifying, or wholly dissolving the ALJ’s proposed order, Roman

       Marblene complains that due process concerns are implicated where, as here,

       the ultimate authority does anything other than affirm the trier of fact’s

       proposed order because modification or reversal involves “substitut[ing] its

       judgment for that of the ALJ.” Appellant’s Br. at 25. Roman Marblene cites

       several cases in support of its argument, but those cases are inapposite as they

       did not involve the review and reversal of findings and conclusions by the

       ultimate authority.3


[20]   We will, however, address and distinguish our opinion in Stanley v. Review

       Board of Department of Employment & Training Services, 528 N.E.2d 811 (Ind. Ct.

       App. 1988). In Stanley, the agency review board reversed the referee’s ruling in

       favor of the employee/complainant based on a “paper review” of the

       proceedings below. Id. at 813. On appeal, the complainant argued that his

       right to due process was violated because the review board, unlike the referee,

       did not have the opportunity to assess the demeanor of the witnesses. We

       agreed. We stressed, however, that “the sole determinative factor” in the case

       was the demeanor credibility of the witnesses, and we specifically limited our

       holding to the “extremely narrow” circumstances presented. Id. at 814-15.

       Indeed, we emphasized that “if other determinative factors exist, the review

       board would then have an alternative adequate basis reflected in the record for


       3
        See, e.g., Cardinal Ritter, 17 N.E.3d at 282; Addison v. Review Bd. of Ind. Emp’t Sec. Div., 397 N.E.2d 1037 (Ind.
       Ct. App. 1979).

       Court of Appeals of Indiana | Opinion 93A02-1701-EX-91 | December 8, 2017                            Page 13 of 17
       its decision and any due process implications would constitute at most harmless

       error.” Id. at 815.


[21]   Unlike in Stanley, demeanor credibility determinations were not the sole

       determinative factor involved in the ICRC’s decision here. The ICRC made

       thirty-five findings of fact, many of which involved undisputed facts as well as

       documentary evidence. Our review of the record reveals that the credibility of

       the witnesses was not the only basis from which the ICRC could draw its

       conclusion that Roman Marblene engaged in an unlawful discriminatory

       practice. We conclude that due process is not implicated here.


[22]   Roman Marblene makes no argument that the ICRC’s final order was not

       supported by substantial evidence. Instead, Roman Marblene merely directs us

       to the evidence that supports the ALJ’s proposed order. As we have already

       stated, we review the record in the light most favorable to ICRC’s decision, and

       our review is restricted to determining whether there is substantial evidence to

       support the decision, primarily whether its decision was arbitrary, capricious,

       an abuse of discretion, or in excess of its statutory authority. Whirlpool, 875

       N.E.2d at 759. Roman Marblene has not met its burden to demonstrate any of

       these things and thus has given us no cause to reverse the ICRC’s order.


[23]   As a final matter, Roman Marblene maintains that the ICRC’s order is void

       because the order was issued outside the statutorily prescribed time period.

       Specifically, Indiana Code Section 4-21.5-3-29(f) provides that a “final order




       Court of Appeals of Indiana | Opinion 93A02-1701-EX-91 | December 8, 2017   Page 14 of 17
       disposing of a proceeding … shall be issued within sixty (60) days after the

       latter of:


               (1) the date that the order was issued under section 27 of this
               chapter;

               (2) the receipt of briefs; or

               (3) the close of oral argument;


               unless the period is waived or extended with the written consent
               of all parties or for good cause shown.


       It is undisputed that the ICRC failed to issue its final order within sixty days of

       the last event that occurred here, the close of oral argument on May 27, 2016.


[24]   This Court has already considered the precise statutory language involved here

       and concluded that the sixty-day time period is directory rather than

       mandatory, and that the legislature did not intend the prescribed time period to

       be essential to the validity of the ultimate authority’s final order. As we

       explained,


               Our review of subsection (f) leads us to believe that the legislature
               did not intend the prescribed time period to be essential to the
               validity of the Commission’s final order. As is evident from the
               statute, no consequences attach in the event of an untimely order
               and under no circumstances has the legislature deprived the
               Commission of its ultimate authority to issue its final order. The
               statute neither purports to restrain the Commission from issuing
               a final order outside of the prescribed time period nor specifies
               that “adverse or invalidating consequences follow.” Moreover,
               the purpose and intent of the sixty day time period is to promote

       Court of Appeals of Indiana | Opinion 93A02-1701-EX-91 | December 8, 2017   Page 15 of 17
               the prompt and expeditious resolution of the administrative
               matters by the ultimate authority. The time period is not intended
               as a jurisdictional prerequisite to a valid final order. Accordingly,
               a mandatory construction of subsection (f) would thwart the
               intention of the legislature.


       State v. Langen, 708 N.E.2d 617, 622 (Ind. Ct. App. 1999) (citation omitted). As

       in Langen, although we understand Roman Marblene’s frustration with the

       length of time it took for the ICRC to issue its final order, the order issued is not

       void.


[25]   Moreover, Roman Marblene failed to object to the timeliness of the ICRC’s

       order until now. As we noted in Langen, the AOPA provides that a person may

       obtain judicial review only of an issue that was raised before the administrative

       agency, with two very limited exceptions that are inapplicable here. See id.

       (citing Ind. Code § 4-21.5-5-10). Over the seven months that the ICRC’s order

       was pending, including the five-month period during which it became clear that

       the ICRC had failed to issue a timely ruling, Roman Marblene stayed silent

       rather than objecting to and alerting the ICRC to its violation of the applicable

       procedural law. Therefore, Roman Marblene has waived judicial review of the

       issue. See id. at 623.


[26]   In sum, Roman Marblene has not established that the final order of the ICRC

       was unsupported by substantial evidence, or was arbitrary, capricious, an abuse

       of discretion, or in excess of its statutory authority. Further, the ICRC’s final

       order is not void. We affirm the order.



       Court of Appeals of Indiana | Opinion 93A02-1701-EX-91 | December 8, 2017   Page 16 of 17
[27]   Affirmed.


       Robb, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 93A02-1701-EX-91 | December 8, 2017   Page 17 of 17
