ATTORNEY FOR APPELLANT                                         ATTORNEY FOR APPELLEE
Robert O. Vegeler                                              William P. Kealey
Vegeler Law Office LLC                                         Stuart & Branigin LLP
Fort Wayne, Indiana                                            Lafayette, Indiana
                                                                  FILED
______________________________________________________________________________
                                                                                   Apr 22 2016, 3:35 pm


                                              In the                                    CLERK
                                                                                    Indiana Supreme Court
                                                                                       Court of Appeals


                              Indiana Supreme Court
                                                                                         and Tax Court



                             _________________________________

                                      No. 02S03-1604-PL-201

       ADAM GAFF,                                                      Appellant-Plaintiff,

                                                  v.

       INDIANA-PURDUE UNIVERSITY OF FORT WAYNE,                        Appellee-Defendant.

                             _________________________________

                Appeal from the Allen Superior Court, No. 02D02-1310-PL-378
                             The Honorable Craig J. Bobay, Judge
                           _________________________________

            On Transfer from the Indiana Court of Appeals, No. 02A03-1504-PL-136
                           _________________________________

                                           April 22, 2016

Dickson, Justice.


       The plaintiff, Adam Gaff, appeals from the grant of summary judgment sought by his
former employer, defendant Indiana-Purdue University of Fort Wayne (IPFW), in this employ-
ment termination discrimination case. We grant transfer to clarify the application of Indiana
summary judgment jurisprudence to such cases.


       As consolidated by the Court of Appeals, the plaintiff's appeal presents claims alleging
that the trial court erroneously granted summary judgment as to the plaintiff's federal and state
constitutional claims and as to the plaintiff's retaliation claim under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e-3(a). Gaff v. Indiana-Purdue Univ. of Fort Wayne, 45 N.E.3d
458, 460 (Ind. Ct. App. 2015). With respect to the federal and state constitutional claims, we
summarily affirm the decision of the Court of Appeals.


        In affirming the summary judgment on the retaliation claim, however, the Court of Ap-
peals noted language from Indiana Civil Rights Commission v. Culver Educational Foundation,
wherein we stated that "the ultimate burden of persuasion that the defendant engaged in unlawful
discrimination remains at all times with the plaintiff." 535 N.E.2d 112, 115 (Ind. 1989). The
Court of Appeals in Gaff acknowledged that "IPFW is the party who moved for summary judg-
ment," but nevertheless applied Culver Educational—which was not a summary judgment
case 1—to hold that "the initial burden is still on Gaff to prove a prima facie case of retaliation."
Gaff, 45 N.E.3d at 465. The Court of Appeals ventured that "Indiana's 'heightened' summary
judgment standard, discussed in Hughley v. State, 15 N.E.2d 1000, 1003 (Ind. 2014), under
which the moving party must negate an opponent's claim, does not apply to a Title VII claim."
Gaff, 45 N.E.3d at 465 n.9. We disagree.


        As we recently emphasized in Hughley, "[e]ven though Indiana Trial Rule 56 is nearly
identical to Federal Rule of Civil Procedure 56, we have long recognized that Indiana's summary
judgment procedure . . . diverges from federal summary judgment practice. In particular, while
federal practice permits the moving party to merely show that the party carrying the burden of
proof lacks evidence on a necessary element, we impose a more onerous burden: to affirmatively
negate an opponent's claim." 15 N.E.3d at 1003 (emphasis in original) (internal quotations and
citations omitted). See also Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d
118, 123 (Ind. 1994). The Indiana methodology for determining summary judgment is well es-
tablished:
        The initial burden is on the summary-judgment movant to demonstrate the absence of any
        genuine issue of fact as to a determinative issue, at which point the burden shifts to the
        non-movant to come forward with contrary evidence showing an issue for the trier of
        fact. And although the non-moving party has the burden on appeal of persuading us that


1
  The Court of Appeals also cited as authority Fuller v. Allison Gas Turbine Division, 670 N.E.2d 64 (Ind.
Ct. App. 1996), and Elliott v. Sterling Management Limited, 744 N.E.2d 560 (Ind. Ct. App. 2001). Like
Culver Educational, Fuller was not a summary judgment case. But Elliott did involve an appeal from a
summary judgment, and the reviewing court's analysis was not in accord with Indiana summary judgment
jurisprudence. We thus disapprove of the analysis employed in Elliott.


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        the grant of summary judgment was erroneous, we carefully assess the trial court's deci-
        sion to ensure that he was not improperly denied his day in court.

Hughley, 15 N.E.3d at 1003 (internal citations and quotations omitted). See also, e.g., Kramer v.
Catholic Charities of Diocese of Fort Wayne-South Bend, Inc., 32 N.E.3d 227, 230-31 (Ind.
2015); Reed v. Reid, 980 N.E.2d 277, 285 (Ind. 2012); Winkler v. V.G. Reed & Sons, Inc., 638
N.E.2d 1228, 1235 (Ind. 1994); Oelling v. Rao, 593 N.E.2d 189, 190 (Ind. 1992). Upon an ap-
pellate challenge to summary judgment, de novo review applies, with the reviewing court "apply-
ing the same standard as the trial court . . . ." Hughley, 15 N.E.3d at 1003.


        In reaching a final judgment where a plaintiff is asserting in Indiana trial courts a federal
statutory cause of action, the elements to be proven and the standard of proof required are deter-
mined by federal law. See James v. City of Boise, 577 U.S. ---, 136 S.Ct. 685, 686, 193 L.Ed.2d
694 (2016) (per curiam) ("It is this Court's responsibility to say what a [federal] statute means,
and once the Court has spoken, it is the duty of other courts to respect that understanding of the
governing rule of law."); Gunn v. Minton, 568 U.S. ---, 133 S.Ct. 1059, 1067, 185 L.Ed.2d 72
(2013) ("State courts adjudicating civil RICO claims will . . . be guided by federal court interpre-
tations of the relevant federal criminal statutes, just as federal courts sitting in diversity are guid-
ed by state court interpretations of state law."). But the state court proceedings in which such a
claim is pursued are governed by the procedural law of the forum, in this case Indiana procedural
law. Cf. Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188, 1194
(1938) (holding that courts apply the procedural law of the forum and the substantive law of the
jurisdiction originating the claim); Brill v. Regent Commc'ns., Inc., 12 N.E.3d 299, 306 (Ind. Ct.
App. 2014) (Indiana adheres to "lex fori (law of the forum) concerning procedural issues.") trans.
denied; JKL Components Corp. v. Insul-Reps, Inc., 596 N.E.2d 945, 950 (Ind. Ct. App. 1992)
("[T]he procedural law of the forum state applies to procedural issues.") trans. denied. Thus,
while the plaintiff's cause of action arises under federal law, summary judgment proceedings
arising under Indiana Trial Rule 56 are governed by Indiana summary judgment procedure and
jurisprudence.


        As to the plaintiff's Title VII retaliation claim, we must thus determine whether IPFW
demonstrated the "absence of any genuine issue of fact as to a determinative issue . . . ." Hugh-



                                                   3
ley, 15 N.E.3d at 1003 (citation omitted). As correctly noted by the Court of Appeals in Gaff,
the essential elements required for the plaintiff to recover under his Title VII retaliation claim
included "(1) he engaged in statutorily protected activity; (2) he suffered a material adverse ac-
tion; and (3) a causal link between the two." Gaff, 45 N.E.3d at 465.


        With respect to the retaliation claim in this case, according to the parties' Agreed State-
ment of Material Facts, the plaintiff's Charge of Discrimination filed May 1, 2013 alleged that he
had been "harassed, discriminated and retaliated against on the basis of [his] sex." Appellant's
App'x at 92 (alteration in original). In his complaint in the present lawsuit, filed October 22,
2013, the plaintiff "alleges that he was discriminated against on the basis of gender (male), sexu-
al orientation and [was] retaliated against . . . ," and that his supervisor "retaliated against him"
due to reports by a co-employee about the plaintiff's "behavior toward" the co-employee. Id. at
93; Appellee's App'x at 163-64.


        IPFW argues that it is entitled to summary judgment because the plaintiff "cannot suffi-
ciently establish a prima facie case of retaliation." Appellee's Br. at 30. IPFW contends that
there was an absence of evidence to show both that the plaintiff was "engaged in a statutorily
protected activity," and that there was a "causal connection between his alleged protected activity
and his termination." Id. As explained above, however, to prevail on summary judgment under
Indiana procedural law, it was IPFW's burden to affirmatively negate the plaintiff's claim, not the
plaintiff's burden to make a prima facie case of Title VII retaliation. See, Hughley, 15 N.E.3d at
1003.


        Here, the undisputed facts in the parties' "Agreed Statement of Material Facts" do not es-
tablish any basis for the plaintiff's retaliation claim under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e-3(a). The only potential "protected activity" is that the plaintiff com-
plained to his supervisor that his co-worker called him derogatory names related to his weight
and sexual orientation. These complaints are not indicative of discrimination that occurred be-
cause of sex, race, national origin, or some other protected class under the statute. In light of the
parties' Agreed Statement of Material Facts, the defendant has satisfied its burden on summary




                                                   4
judgment to affirmatively negate the plaintiff's claim. And the plaintiff has not come forward
with contrary evidence showing a genuine issue of material fact for the trier of fact.


       We affirm the grant of summary judgment as to the plaintiff's retaliation claim under Ti-
tle VII of the Civil Rights Act of 1964, and we summarily affirm the Court of Appeals as to all
other issues. This cause is remanded to the trial court for further proceedings consistent with this
opinion.


Rush, C.J., and Rucker, David, and Massa, JJ., concur.




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